Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, February 24, 2005

Frozen Embryo = Person = Who Cares?

By Rob Vischer

An Illinois judge's recent ruling that a frozen embryo qualifies as a "person" under the state's Wrongful Death Act need not worry abortion rights supporters, according to Rutgers law prof Sherry Kolb:

[Y]ou might still believe that abortion should be legally permissible. You could take the view that an abortion kills a person but only in the way that refusing to donate blood or a kidney to someone who needs your blood or your kidney kills a person.

As I have argued in a different column, at least prior to viability, it is impossible to refuse to lend one's body to another person (which is largely what pregnancy is all about) without killing that other person. Given that fact, the law cannot fairly coerce women to take their pregnancies to term, while at the same time leaving fathers and other relatives free to refuse to donate an organ or blood.

Nevertheless, she still faults the judge's reasoning:

When a child (or even a developing fetus after a certain point) dies, a person with characteristics such as sentience has lost something that he or she previously had. That loss stands in addition to that of the family members who mourn for the child.

In contrast, when an embryo is discarded by mistake, the only ones who lose are other people -- just as only other people lose when a couple decides not to have intercourse (and thus not to produce a child who could have been a wonderful person).

Read the rest here.

Rob

Wednesday, February 23, 2005

Larry Solum on Virtue Ethics at Notre Dame

By Rick Garnett

University of San Diego law professor (and legal-theory blogger) will present a paper, "Virtue Jurisprudence:  An Aretaic Theory of Law" at the Notre Dame Law School's faculty-colloquium series on Wednesday, March 2.  Here's the abstract for the paper:

Contemporary legal theory in the United States has been dominated by the realist paradigm. The extreme version of realism is captured by the slogan of the critical legal studies movement: “Law is politics!” Other heirs to the realist tradition (including normative law and economics, the legal process school, legal pragmatism, and so forth) coalesce around what we might call the instrumentalist thesis—the point of legal institutions (especially courts) is to use the law as an instrument to achieve the goals of some normative theory (such as welfarism or deontology ) or a political ideology (of the left, right, or center). There are, of course, opposing tendencies in contemporary legal theory. Some neoformalists emphasize the duty of adjudicators to follow the law and give the parties what they are due; in a rough and ready sort of way, these neoformalists adopt a deontological perspective on legal theory that competes with the consequentialism of contemporary neorealists.

In this paper, I sketch an alternative direction for contemporary legal theory, an approach that I call “virtue jurisprudence.” My core idea is quite simple. In moral theory, virtue ethics offers a third way—an alternative to the deontological and consequentialist approaches that dominated modern moral philosophy until very recently. What would happen if we transplanted virtue ethics into normative legal theory? This paper offers the sketch of an answer to that question.

Rick

Gay Marriage as an "Ideology of Evil"

By Rob Vischer

The press seems to be having a field day with Pope John Paul II's reference to gay marriage as being part of an "ideology of evil."  One vital benefit of Catholic social thought is its ability to engage those outside the Church through language that is accessible.  In today's culture, my fear is that such labels close off any further potential conversation on a key societal trend.  It seems too easy for proponents of gay marriage (and those who are conflicted on the issue) to write off anything the Catholic Church has to say, as these labels produce headlines that support a caricature of the Church as an unthinking, anachronistic institution.  Am I missing something?  (Note that I am not addressing the merits of the gay marriage debate, only the language with which we approach it.)

Rob

Property, "Takings," and Subsidiarity

By Rick Garnett

Our colleague Steve Bainbridge has two excellent posts (here and here) up at his other blog on the Kelo case now pending before the Supreme Court.  The case involves a decision by the City of New London to "take" (that is, to condemn) Susette Kelo's house and give it to "the New London Development Corporation (NLDC), a private non-profit body", for some unspecified urban-renewal project.  The Fifth Amendment to the United States Constitution, though, provides that private property may only be taken for "public use."  As Steve notes:

The Supreme Court has held that private property can be seized via eminent domain as part of an urban renewal project when the property is blighted, a loophole that local authorities have greatly abused to seize private property. Yet, in this case, the government doesn't even bother trying to hide behind that fig leaf. They assert baldly the power to seize private homes because they think some other user can put them to a higher tax generating use. Except, in this case, they don't even know what the land will be used to do!

It strikes me that this case, and this issue, are connected to our project here at MOJ in at least two interesting ways.  First, consider this statement (quoted by Bainbridge) of Russell Kirk:

[F]reedom and property are closely linked. Separate property from private possession, and Leviathan becomes master of all. Upon the foundation of private property, great civilizations are built. The more widespread is the possession of private property, the more stable and productive is a commonwealth.

Now, the Catholic Social Thought tradition -- from Leo to John Paul II -- has been careful to avoid excessively individualist or libertarian understandings of the right to private property.  At the same time, it has certainly and consistently embraced the idea that freedom and property-rights are linked, and also the idea the the widespread ownership of property -- coupled with reasonable regulations directed toward the common good -- is more likely than collectivization to yield a just and stable society.  (Consider, for example, the Distributism movement.)

A second point sounds, I think, in "subsidiarity."  "Private property" itself -- like labor unions, voluntary associations, local governments, etc. -- is a kind of "mediating institution," providing both a buffer and a bridge between the state and the family.  (If I remember correctly, Professor George Garvey once gave a lecture in which he developed this point).  Thus, we ought to be concerned when governments appear to be abusing their eminent-domain power -- a power that should, for both constitutional and moral reasons, be directed toward the common good -- and "taking" private property either for their own ends, or for the ends of other, privileged, private parties.

Rick

Tuesday, February 22, 2005

The Supreme Court to Review Assisted Suicide Case

By Rick Garnett

The Supreme Court has agreed to review a recent decision by the Court of Appeals for the Ninth Circuit invalidating a federal effort to regulate the use of assisted-suicide drugs in Oregon, notwithstanding that State's policy choices.  Law professor Ann Althouse has an interesting post on the federalism (and, we might say, subsidiarity) and enumerated-powers aspects of the case.

Rick

Bush's Budget and the Poor

By Rob Vischer

Evangelical social activist Ron Sider has offered a critique of the relationship between President Bush's domestic agenda and the plight of the poor.

Rob

Academic Freedom

By Rick Garnett

In light of the Ward Churchill, Larry Summers, and "Vagina Monologues at Notre Dame" debates that are so much in the news these days, I wonder if anyone has any thoughts about what, for those of us hoping to contribute to the development of something called "Catholic Legal Theory" -- and hoping to do so in the context, by and large, of universities -- "academic freedom" should mean? 

In today's Washington Post, Eugene Robinson joins the critics of Larry Summers, adding:

Academic freedom? I agree that it's sacred, but Summers isn't just an overcaffeinated economics professor, bloviating in a seminar or holding court at the faculty club. He's the president of Harvard. He sets policy and has absolute power over careers, and now he has put himself on the record as extremely skeptical, to say the least, about any "special efforts" to increase diversity.

Professor Brian Leiter (and many others) have discussed the academic-freedom dimensions of the Ward Churchill fracas (Churchill is the loathesome poseur who compared the victims of the 9-11 attacks to Eichmann).  Eugene Volokh and Steve Bainbridge have provided helpful thoughts on this case, too.

And, finally, Bishop John D'Arcy (of the Ft. Wayne - South Bend diocese) has weighed in -- addressing the academic-freedom issue -- on the recent presentation at Notre Dame of the "Vagina Monogues."  About academic freedom, Bishop D'Arcy had this to say:

Freedom in the Catholic tradition, and even in the American political tradition, is not the right to do anything. Freedom in the Catholic tradition is not the right to do this rather than that. That would be an entirely superficial idea of freedom. Freedom in the academy is always subject to a particular discipline. It is never an absolute. The parameters of the particular discipline guide research.

Freedom is the capacity to choose the good. In “Ex Corde Ecclesiae,” John Paul II makes it clear that a Catholic university “guarantee its members academic freedom, so long as the rights of the individual person and of the community are preserved within the confines of the truth and the common good.”

Here, the Holy Father, a long-time professor in a Catholic university, indicates certain parameters relative to freedom, namely, truth and the common good.

This play violates the truth about women, the truth about sexuality, the truth about male and female and the truth about the human body.

It is in opposition to the highest understanding of academic freedom. For freedom which is not linked to truth is soon extinguished. A Catholic university seeks truth. It is never afraid of truth; but seeks it with respect for both reason and faith. Each gives light and guidance to the other. How has the light coming from faith, or indeed from right reason, been brought to bear on the decision to present this play?

Notre Dame philosophy professor Ed Manier, however, had this to say:

"Academic freedom" . . . is a term whose meaning has been settled by appropriately academic means. It is clearly not a term whose meaning is open to manipulation by political or religious authorities. If the University or the bishop were to require six of its departments to present topics challenging Catholic Orthodoxy in a specific format intended to protect or defend religious orthodoxy, the academy would have no difficulty recognizing that as a violation of the academic freedom of the departments and individuals involved.

The bishop muddies the waters of intelligent public discussion of the relationship between the Church and Catholic universities in the United States by confusing "freedom of religion" with "academic freedom." The liberties involved are always in active tension with each other and will always be so unless Churches were to be required to restrain their teaching by the "requirements of reason alone."

The assumption that this tension can or should be overcome by authoritative fiat is at odds with my reading of the Gospel.

Now, to be clear, I am saying nothing about or on the merits of any of these disputes.  (Well, I am saying that Churchill is loathesome).  I am only asking -- in light of the fact that "authentic freedom" is a theme that runs through Catholic thinking and teaching -- what "academic freedom" can and should mean for us?  I admit that my own libertarian bent on free-speech questions inclines me toward the "tolerate it all" position, but maybe this is the wrong approach?  Should things be different at a Catholic university or law school?  Can they be, though?

Rick

Monday, February 21, 2005

Developments in the Law--Same-Sex Unions

By Michael Perry

Today's newspapers are reporting that the United Kingdom is about to register gay and lesbian partnerships under a new Civil Partnerships Act.  Moreover, the Associated Press reports:

Britain's navy, which until five years ago banned gays from its workforce, said Monday it is joining a campaign to ensure homosexual employees are fairly treated.

The military also announced gay servicemen and women will be able to live in married quarters with their partners starting later this year.

The Royal Navy said it was entering a program organized by gay rights group Stonewall which advises employers on dealing with gay, lesbian and bisexual staff.

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The government lifted a ban on gays serving in Britain's armed forces in 2000 after a lengthy campaign spearheaded by Stonewall. The Ministry of Defense had said lifting the ban would undermine morale and fighting capability, but the European Court of Human Rights ruled in 1999 that the restriction was a violation of human rights.

``The armed forces regard sexual orientation as a private matter,'' a Defense Ministry spokesman said Monday. The Royal Navy's decision to join the Stonewall Diversity Champions program was ``part of our equal opportunities and diversity policy anyway,'' he added.

During the first year of the program, seminars, pamphlets and specific advice will be on offer for servicemen, Stonewall said.

Lt. Cmdr. Craig Jones, who has served with the Royal Navy for 16 years but has only been openly gay for the last five, described the move as ``superbly positive.''

Navy spokesman Anton Hanney said gay and lesbian couples would be able to live together as long as their relationship was registered under the new Civil Partnerships Act. The Ministry of Defense said the move applied to the army and air force as well as the navy.

Civil partnership legislation, which gives gay couples some of the same legal rights as married heterosexuals, has been passed by Parliament and is expected to take effect later this year.

``We will be complying with the law. We are obliged to give equal treatment to gay and lesbian partnerships under these terms,'' Hanney said.

All this is to the good, in my judgment.  Why?  Some of the discussion in chapter 4 (pp. 55-80) of my book Under God?  Religious Faith and Liberal Democracy (2003) is relevant.

"A Personalist Jurisprudence: The Next Step"

By Rick Garnett

I received recently, and am working through, a book by Professor Samuel J.M. Donnelly, of the Syracuse University College of Law, called "A Personalist Jurisprudence, The Next Step:  A Person-Centered Philosophy of Law for the Twenty-First Century."  Here is the publisher's blurb:

In 1880, Oliver Wendell Holmes, Jr., defined law as the predictions of what courts would do. Others, particularly his intellectual opponent Christopher Columbus Langdell, perceived law as a system of language and rules. This book offers an interpretation of American law and a method for judicial decision making. Donnelly offers a vision of American law “as an activity engaged in by a variety of players including judges, advocates for the plaintiff and defendants, law reformers, scholars and perhaps all of us.” A central argument is that law is concerned with persons and their relations. Arguably, during the 20th century there was, in jurisprudential thought, a step-by-step, piecemeal recovery of a role for the person in the law. The next logical step in the 21st century is an explicitly person-centered jurisprudence as interpretation of American law.

Here is a link to the book's introduction.  I have not read enough to have an informed opinion about the book, but it certainly looks like the kind of thing that would be of interest to MOJ readers.  If any of my colleagues have read it fully, I'd welcome their views.

Rick

Human Cloning at the United Nations

By Michael Perry

From this morning's online Chronicle of Higher Education:

*  IN A SHARPLY DIVIDED VOTE, a United Nations committee passed
   a nonbinding declaration on Friday prohibiting all types of
   human cloning that are incompatible with "human dignity" and
   the protection of "human life." The United States praised the
   measure, but other nations criticized it for failing to
   distinguish between types of cloning.

For the UN Press Release, with all the details, click here.

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