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.

Wednesday, February 16, 2005

"Play[ing] to Stereotype" on the Faith-Based Initiative

By Rick Garnett

This article, written by David Kuo -- former Deputy Director of the President's Faith-Based Initiative -- is saddening and sobering, but well worth a read.  Here is a taste:

[S]ince the early-1990s I've been what columnist E.J. Dionne termed a "com-con" or "compassionate conservative." I worked for William Bennett and John Ashcroft in the mid-1990s on issues like immigration, welfare, and education as they tried to promote a more compassionate Republican approach. While pure com-cons were never terribly powerful in Republican circles, Bush's endorsement of this progressive conservatism was exciting. And when he became the president, there was every reason to believe he'd be not only pro-life and pro-family, as conservatives tended to be, but also pro-poor, which was daringly radical. After all, there were specific promises he intended to keep.

Sadly, four years later these promises remain unfulfilled in spirit and in fact. . . .

The moment the president announced the faith-based effort, Democratic opposition was frenzied. Hackneyed church-state scare rhetoric made the rounds; this was "radical" and "dangerous" and merely an "attempt to fund Bob Jones University." One Democratic African-American congressman came to the White House to back the president but was threatened by influential liberal groups that they would withhold funding if he didn't denounce the President. The next day he was forced to retract his statement. All of this came despite the fact that former Vice President Al Gore had endorsed virtually identical faith-based measures during the 2000 campaign.

Congressional Republicans matched Democratic hostility with snoring indifference. Sen. Rick Santorum spent endless hours alone lobbying Senate Leadership to give some floor time, any floor time to get a bill to help charities and the poor - even after 9/11 when charities were going out of business because of a decline in giving. He was stiff-armed by his own party.

At the end of the day, both parties played to stereotype -- Republicans were indifferent to the poor and the Democrats were allergic to faith.

Rick

Tuesday, February 15, 2005

Untangling the Sacred From the Secular

By Rob Vischer

As hinted at by Rick's post, there is a strong case to be made for getting government out of the marriage business (and into the civil union business). Arguments grounded in the common good do not persuade me that the longstanding conflation of religious and civil marriage is worth maintaining. Those who see the conflation as having beneficial effects on the public's approach to family commitments must recognize that the effects run both ways, and in recent decades it seems clear that the public's approach to family commitments is having more impact on religious conceptions of marriage than vice versa. I see very little evidence that religious communities are likely to impact marriage as a public institution anytime soon. Today's New York Times, for example, recounts the stalled efforts to introduce "covenant" marriage as an alternative to today's at-will contract approach to the institution. Covenant marriages require pre-marital counseling and drastically limit the available grounds for divorce (to infidelity, abuse, etc.). The article reports that, in the three states to adopt covenant marriage (Arkansas, Louisiana, and Arizona), only one to two percent of couples have opted for it. That statistic alone speaks volumes of the extent to which our vision of marriage has been compromised by its operation as a government entitlement, rather than as a sacred undertaking.

Rob

Privatized Marriage

By Rick Garnett

John Coleman argues, in a Reason Online article called "My Privatized Valentine," that St. Valentine was executed (martyred!) for his "belief was that marriage is too sacred a rite to relegate to the incompetence of state bureaucracy."  We should follow St. Valentine's lead, Coleman argues:

It is time to privatize marriage. If the institution is really so sacred, it should lie beyond the withering hands of politicians and policy makers in Washington D.C.  There should be no federal or state license that grants validity to love.  There should be no state-run office that peers into our bedrooms and honeymoon suites. If the church thinks divorce and homosexuality are problematic, it should initiate the real dialogue to address these problems in-house rather than relying on state-sponsored coercion to affirm doctrinal beliefs.  And if tax-codes and guardianships need some classification for couples, let's revise civil union standards to reflect those needs.

He concludes:

But if you really want to honor the martyr, join in the battle to take matters of personal character — matters that should precede governmental authority — out of the hands of the state.

Well.  What of it?

Rick

Killing a Fetus Is Murder

By Rick Garnett

According to an appellate court in California, the killing of a nonviable fetus constitutes murder under California law, because the California legislature included "fetuses" within its list of victims in its murder statute.  What is most interesting to me, though, about the decision in People v. Valdez, is the nature of the contrary argument (thanks to CrimProf Blog for the quote):

The defendants argued, however, that because the fetus had a serious medical condition and would not have survived until birth, punishing the defendant for murder would violate the cruel and unusual punishment clause, and would be "so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity."  The court responded:  "As we have noted, our state's Legislature made a policy decision to protect fetal life in the same manner as the life of a human being, except where the mother's paramount privacy interests are at stake. In light of the state's legitimate interest in protecting fetal life, we cannot say that it is grossly disproportionate, or that it shocks the conscience or offends fundamental notions of human dignity, to punish as murder the unlawful killing of a fetus which, due to a physical or medical condition, may not otherwise survive until birth. In other words, construing California's murder statute to apply to the killing of "a non-survivable fetus" does not violate the cruel and/or unusual punishment clauses of the state and federal Constitutions."

Thoughts? 

Rick

Monday, February 14, 2005

"Who Made Thee"

By Rick Garnett

The following quotation -- relevant, I hope, to our ongoing consideration of the importance of "moral anthropology" to law and legal theory -- is from Peter A. Speckhard's essay, "Who Made Thee?:  On Telling People Who They Really Are," in the latest issue of Touchstone:

[W]e must never stop asking [Christ's question, "who do you say that I am?"], not just about our Lord but also about the least of his brethren, and not simply among ourselves but of everyone.  Who do you say people are?  It is no religious intrusion into the domain of the state to insist that a government of the people, by the people, and for the people should know what a person is.  The question is inherently religous.  The answer is the foundation for all human rights.  A government that disqualifies answers for being religious disqualifies all answers, even self-evident truths, and ceases to defend basic human rights as surely as it ceases to know what humans are.

For more on this claim, see, e.g., Michael Perry's "Under God".

Rick

Calling Evil Evil

By Susan Stabile

Regarding Rick's post about the NYT's article last week discussing evil, I wonder whether the NYT may be overstating it when it says that most psychiatrists assiduously avoid the term evil.  My sense it that it is more than just a few rogue forensic scientists who are willing to recognize the existence of evil.  I just finished attending a workshop on Carl Jung and the Spiritual Exercises.  When I brought the article to the attention of the person running the workshop, his comment was that the most interesting discussions of evil occuring today involve not moral theologians, but psychologists and psychiatrists. 

As I understand it, Jung himself was critical of Christians for being too naive about evil.  Jung thought it important not to underestimate the fact that there is an archetypal shadow, a collective force that moves us to disintegration and alienation. 

Susan

Diagnosis: "Evil"

By Rick Garnett

A few days ago, the New York Times ran this article, "For the Worst of Us, the Diagnosis May be 'Evil'", reporting that, with respect to some "predatory killers," "a few forensic scientists have taken to thinking of these people as not merely disturbed but evil. Evil in that their deliberate, habitual savagery defies any psychological explanation or attempt at treatment."  However, the Times assures us, "[m]ost psychiatrists assiduously avoid the word evil, contending that its use would precipitate a dangerous slide from clinical to moral judgment that could put people on death row unnecessarily and obscure the understanding of violent criminals."

The article is quite informative, and well worth reading.  It sounds some reasonable cautions about the mis-use of a term like "evil."  I cannot help thinking, though, that there is something jarring, troubling, and even -- well -- sad, about an account that, in my view, reveals how far "expert" thinking has travelled from traditional moral intuitions and commitments.  I was also a bit put off by the suggestion in the article that experts' desire to avoid imposition of the death penalty -- a desire I share -- warrants avoiding calling "evil" by its name.  As I have suggested elsewhere, arguments against the death penalty that require or invite denying the realities of human agency and moral evil are not, in the end, likely to amount to much.

Rick

Cultivating the Conversation at St. Thomas

By Rob Vischer

If you're interested in the conversations taking place at Mirror of Justice, you'll want to spend some time in Minneapolis in the coming weeks.  The University of St. Thomas Law School is hosting two can't-miss conferences. 

The first, to be held March 11, echoes our ongoing discussions on the viability of a Seamless Garment Party.  Titled "Can the Seamless Garment Be Sewn?  The Future of Pro-Life Progressivism," participants include Jim Wallis, Congressman Jim Oberstar, Helen Alvare, Sidney Callahan, Susan Appelton, Ted Jelen, and MoJ's own Mark Sargent.

The second, to be held April 7-9, is titled "The Catholic Intellectual Tradition and the Good Society."  Panels will be devoted to topics such as "Sacrifice and the Common Good" and "Disagreement and Dissent in a Good Society."  Participants include John Finnis, James Gordley, John Coughlin, Paul Griffiths, Elizabeth Schiltz, the omnipresent Mark Sargent, and Christopher Wolfe, among many others.

Rob

Sunday, February 13, 2005

Zenit Interview: Catholic Legal Theory

By Michael Scaperlanda

Today the Catholic News Service, Zenit, published an interview with me on Catholic Legal Theory.  I welcome comments and criticism from my fellow bloggers and from our readers.

Catholic Legal Theory
Michael Scaperlanda on a Person-Centered System

NORMAN, Oklahoma, FEB. 13, 2005 (Zenit.org).- For almost 100 years, secular schools of legal philosophy -- especially legal realism and legal positivism -- have been dominant within the legal academy and the judiciary.

These have led to laws and practices inimical to religious practice and traditional morals. But now, Michael Scaperlanda and a growing number of lawyers and law professors are developing a response to this phenomenon through something called Catholic legal theory.

Rooted in the dignity of the human person and respect for the common good, it is a reapplication of the Catholic intellectual tradition to a new context.

Scaperlanda holds the Edwards Family Chair in Law and is associate dean for research at the University of Oklahoma College of Law.

He is the co-editor of a forthcoming book exploring Catholic perspectives on areas of American law. His latest book, co-authored with his wife, María, is "The Journey: A Guide for the Modern Pilgrim" (Loyola).

Q: What is Catholic legal theory?

Scaperlanda: Catholic legal theory is an ongoing project of Catholic law professors, legal philosophers and others to participate in drawing on the Catholic intellectual tradition to build a culture that values the dignity of the human person, sees the community as indispensable for human flourishing, and seeks authentic freedom for the person within the community.

Catholic legal theory focuses, as you might imagine, on the ways that law and legal systems can aid or impede the building of a culture of life. At this level of abstraction, Catholic legal theory exists as a unified body.

When we move from the abstract to the concrete, I suspect that several Catholic legal theories will emerge as different scholars -- with various ideologies and prudential judgments -- attempt to work out the role of the state and its relation to the person in the formation and policing of the community.

Q: Is it different from natural law theory?

Scaperlanda: Catholic legal theory is broader than natural law theory.

Natural law theory uses philosophical reason, apart from Revelation, to attempt to arrive at the range of right answers about the good of the person in community.

Since, as St. Paul says in Romans 2:15, every person has the law written on their heart, a Catholic legal theorist can rely on the use of natural law to reason together with non-Christians on how society's laws and legal systems ought to be structured for the good of the person. Catholic legal theory certainly uses natural law concepts as part of its project.

Catholic legal theory also uses divine Revelation -- sometimes explicitly, sometimes not -- as a critical component in the attempt to reflect on how the law and legal systems can serve humanity. I would argue that Paragraph 22 of "Gaudium et Spes" provides the key text: "The truth is that only in the mystery of the incarnate Word does the mystery of man take on light. ... Christ ... fully reveals man to man himself and makes his supreme calling clear."

The Catholic legal theorist must grapple with the question of how the law and legal systems can best serve the development and flourishing of this creature -- the human person -- who is created in God's image and revealed to us in the person of Christ.

Q: Isn't it imprudent or impolite to make an appeal to divine Revelation when talking about law in a pluralistic society and to secular audiences?

Scaperlanda: The Catholic legal theorist should act prudently and with charity, but the exercise of these virtues does not require strict separation of God-talk from law-talk.

Robust pluralism requires allowing each person to engage the broader community in dialogue from the very core of her being. Only an impoverished and superficial pluralism would mandate that the religious person ignore the central part of her being as the price for full admission to the society.

Of course, merely providing proof texts from the Bible or the Church's magisterium will be ineffective when talking with those who reject the authority of these texts.

Buried deep beneath the corrupting influence of original sin and further covered beneath a lifetime's accumulation of sin and hurt, there is within each of us some glimmer of that original goodness. Since Catholicism proposes that Christ -- the Way, the Truth and the Life -- reveals the human person to himself, Catholic legal theory can gain currency among some non-Catholics and nonbelievers because it appeals to this original goodness by proposing a more human way of constructing law and legal theory.

Q: Why is there a need for Catholic legal theory?

Scaperlanda: Western society currently is engaged in a dangerous move, attempting to build a civilization with a thick conception of rights upon a foundation that insists on a very thin conception of the human person. This is a house built on sand if there ever was one, and the unstable structure is bound to collapse.

What do I mean by this? The founding generation in the United States recognized as self-evident the right of human persons to "life, liberty and the pursuit of happiness." These rights were viewed as inalienable because they were endowed not by men, but by the Creator.

The founding generation also knew that this magnificent creature was easily susceptible to corruption and so they devised a system of separation of powers and checks and balances to minimize the potential for mischief among the governing class.

They had what I call a thick -- or thicker -- conception of the human person.

Western society today correctly sees that the human person is worthy of dignity and liberty. And, in positive ways, we enjoy a greater equality of rights and liberties today than when the United States was founded.

At the same time, our society is currently engaged in an experiment to see if we can maintain this thicker concept of liberty while denying its source and foundation. Marginalizing God and an understanding of the person as a creature created in God's image, the current narrative privatizes conceptions of the human person and human goods. Instead of a public narrative about our origins, purposes and destiny, each individual becomes a sovereign self-creator.

This anthropology was articulated by the United States Supreme Court in the case of Planned Parenthood v. Casey in the infamous "sweet mystery of life" passage found in the opinion: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."

Under this regime, it is a violation of the individual's liberty for the community to draft laws reflecting its own thick conception of the human person.

The experiment cannot succeed. A house cannot stand without a foundation. Secularist liberal theory is attempting to build more rooms onto the house while simultaneously destroying its foundation.

This is not the case of shoring up a cracked foundation or moving the house to a new location with a different foundation. There is no pretense of a foundation at all, just a naive optimism that the house will not fall.

Catholic legal theory offers a powerful corrective lens through which to see the fatal defects in the secularist liberal project, while offering a reasonable alternative for the development of a secular legal system in a pluralistic society.

Q: Is Catholic legal theory a new phenomenon?

Scaperlanda: Yes and no.

No, in the sense that our Western legal tradition is built upon a Catholic synthesis of Athens and Jerusalem as developed in Catholic cultures throughout Europe over the last 2,000 years. Protestant reformers, Enlightenment thinkers, moderns and postmoderns were all working within this synthesis.

Yes, this is a new phenomenon in the sense that at this particular time in history and probably in reaction to the radical secularization experiment described above, there seems to be a renaissance of Catholic legal thought.

Catholic legal theorists are currently working in several Catholic and secular institutions. On an institutional level, a few Catholic law schools in the United States are renewing their commitment to the Catholic intellectual tradition, and two new Catholic law schools have recently been created with this mission in mind.

Additionally, Villanova University recently inaugurated the Journal of Catholic Social Thought and last year a number of legal scholars started a Web log, "Mirror of Justice," which is devoted to the development of Catholic legal theory.

Q: How can Catholic lawyers aid academics in helping foster Catholic legal thought within the profession and the legal system?

A: First, by doing the things that a Catholic lawyer would normally do. Prayerfully and faithfully putting Christ at the center of one's life; excelling as a lawyer and viewing a legal career as a vocation given by God; living a life of integrity in the practice; befriending clients and challenging them to live lives of integrity.

Many clients want to do the right thing and just need a little nudge. Catholic lawyers should spend some time representing the poor and the marginalized. Solidarity with society's "throwaways" can be transformative in unimagined ways.

Second, practicing lawyers can foster Catholic legal thought and the building of a culture of life by making themselves more fully aware of the profoundly destructive effects of the secularist anthropology that has thoroughly saturated our legal system.

Lawyers who are firmly rooted in a Catholic understanding of the human person, the community, and the good can work, often in small and seemingly insignificant and incremental ways, to put our civilization on a firmer foundation.

By way of example, the lawyers who attacked the injustice of apartheid in the United States didn't make a frontal attack on segregation laws at first. By challenging wage disparities between black and white teachers and by challenging racial discrimination in graduate schools, these lawyers pushed the conversation slowly toward a new understanding of equality and an end to segregation.

Lawyers practicing in most any area of the law can make arguments designed to nudge the law and the legal system toward a more human foundation, at least so long as the arguments are consistent with the rightful goals of the client.

Parochial Schools

By Susan Stabile

I read with interest both Rick's post on the demise of parochial schools and the article in today's times to which it refers.

I can't speak for other urban areas, but as a product of a Brooklyn parish and its parochial school, I can say there is much truth in the observation that parishes were something like "mini-states," that, as Rick expresses it, were often more important to urban geography, and to city-dwellers' identity, than the conventional markers and boundaries."  Virtually everything in our lives revolved around the parish.  Not only were we educated in the parochial grade school, but all of our activities - scouts, sports, Great Books Club, etc. were run by the parish, as was a teen youth center and various other activities for adults, teens and children.  The priests and nuns were constant presences in the streets of the neighborhoods or in our homes for meals or coffee.  As a result, our faith was not just something we learned in our religion classes or in church, it was in the air we breathed.

When asked where I grew up in Brooklyn, I'm still as likely as not to respond by saying: "Sts. Simon and Jude."  (Amusingly...although perhaps only to me....as the child of a NYC police officer, the other way I typically identify Brooklyn neighborhoods is by precinct number.)

For all the complaints I've made over the years about various aspects of Catholic school education, I think something is lost with the closing of so many parochial schools.  But I think perhaps more may have been lost with the demise of the parish as a central part of the lives of parishioners.

Susan

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