Monday, June 28, 2004
I would like to address the argument made by Garry Wills and posted by Mike Perry a couple of days ago. As a somehat left-of-center Catholic I am usually a a fan of Wills, although I think some of his stuff on the responsibility of the Papacy for the Holocaust is pretty unbalanced. But I found myself disagreeing with his argument in this editorial, at least so far as I understand it. His argument goes something like this (I think):
1. The Church's theologically-based condemnation of killing extends only to the killing of a "person."
2. Neither Scripture nor the Tradition, however, defines when a "person" comes to exist; both Aquinas and Augustine, for example, expressed uncertainty about the question. There is, therefore, no theological definition within Catholicism of when a fertilized ovum becomes a person.
3. People of conscience, using the tools of natural reason, and the insights provided by philosophy and the sciences, can reach different conclusions about when a "person" comes to exist.
4. The bishops' opinion about when a fetus becomes a person, because it is not an expression of religious truth, is based only on natural reason.
5. The bishops' definition thus presumably is not binding on Catholics, because it does not express a truth of the faith, but only one of many different conclusions that people of conscience might reach using the tools of natural reason, and they have no right to impose their conclusions on anyone else, including Catholics.
6. Because Catholics are not obligated to adopt the bishops' position, there is no "church-state conflict", because Catholics are not obligated to oppose something that is legal (I think that's what he meahns, although his conclusion is expressed pretty telegraphically, and it is not clear how he uses the phrase "church-state.")
I think his argument fails for the following reasons:
1. I'm no theologian, but I don't believe Wills is correct when he argues that the bishops lack a theological basis for their assumption that life begins at fertilization. Theology has come a long way since Aquinas' notion of the "quickening" or infusion of the soul towards developing entirely religious arguments for the position that personhood begins at fertilization. Others can articulate those arguments better than I. Those arguments can be dismissed if one is a fundamentalist (which of course Wills is not, except when he tries to score debating points by invoking scripture), or if one believes that the teaching authority of the Pope and Bishops should not be privileged (which Wills might in fact believe). But I think it is a dramatic overstatement to argue that the Church's position on when personhood begins is not really a theological position or is "bad" theology, and hence has no claim on Catholics' fidelity.
2. Wills seems to have a very dualist conception of the Church's teaching authority: the Church can teach authoritatively about Revelation - everything else ("nature") is a matter of natural reason and individual conscience. Because he apparently assumes that the sphere of Revelation is very narrow (the subject matter of the Nicene Creed,maybe), the Church's teaching authority is quite limited. Everything else is a matter of the individual's conscience and legitimate disagreements based on natural reason, and the Church's voice is not privileged. That is a perfectly legitimate argument - it's just not a Catholic one. It resonates within the Protestant tradition and reflects the persisting difference between Catholics and Protestants over the locus of truth and authority. (I would love to hear from our Protestant readers here - I may have a pretty confused conception of how a Protestant would read Wills' argument - they may in fact NOT want to claim Wills' argument).
3. If one agrees that the bishops are making legitimate theological arguments over the nature of personhood, and that their teaching authority does extend to that question, then we cannot dismiss the problems Wells dismisses so blithely. First, Catholics have to think about their fidelity to Catholic teaching. Second, Catholics in public life have to think about how their obligation of fidelity constrains their behavior as public actors. In short, there is still a "church-state" problem, as Wills rather obscurely frames the issue. The question of how one resolves that problem is another topic: what I am trying to say here is that Wills' attempt to prove that there is no problem because Catholics can legitimately ignore the bishops is not convincing.
- Mark
The second reading at today's mass, taken from 2 Timothy, includes the following exhortation -- one that is likely helpful for all lawyers, and particular for law professors:
"Avoid foolish and ignorant debates, for you know that they breed quarrels. A slave of the Lord should not quarrel, but should be gentle with everyone, able to teach, tolerant, correcting opponents with kindness. It may be that God will grant them repentance that leads to knowledge of the truth, and that they may return to their senses . . . ."
I like to think that, at Mirror of Justice, we've done a good job of "modelling" efforts to heed this counsel.
Rick
The National Association of Evangelicals has released a draft of its much-anticipated statement on civic engagement. Of particular note to MoJ readers is the degree to which the document reflects the influence of Catholic social thought, especially in its implicit embrace of subsidiarity and its recognition that jurisprudential, economic, historical, social, and political analyses are necessary in order to apply a Christian normative vision to matters of public concern, given that not all such matters can be resolved through a reference to scripture.
Rob
Today's Chicago Tribune has an interesting column on the logic of those opposing the Unborn Child Pain Awareness Act, which would require that "a patient who is 20 or more weeks into a pregnancy . . . be advised of the scientific evidence that the fetus experiences pain during an abortion. Her doctor would have to offer anesthetics for the fetus. The doctor would also be free to state his or her views on the subject." To the columnist, the decency of the proposed legislation is obvious, whether or not one believes that abortion should be outlawed:
One of the most dramatic medical advances of recent years has been the use of surgery to correct birth defects--before birth. Surgeons can operate on fetuses in the womb for a variety of conditions, from life-threatening tumors to spina bifida. When they operate, it may surprise you to learn, they provide anesthesia not only to the mother but also to the fetus.
Or maybe it doesn't surprise you. Maybe it seems obvious that fetuses can feel pain long before they emerge into the world. But some people wish you wouldn't think about that fact.
In truth, [the Act is not anti-choice because] it would have no effect whatsoever on a woman's right to end a pregnancy. All it would do is recognize that if a fetus is going to be destroyed, there's something to be said for doing it in the most humane way possible.
Rob
Sunday, June 27, 2004
Here's a story from the Boston Herald:
"The spiritual teacher stripped of her Christian Science affiliation after refusing to repent for marrying her lesbian partner of 10 years is now considering suing.
'I have three names of attorneys that were recommended and I just feel like that maybe I should call one of them,' Kathleen Clementson, 62, said from her Florida home yesterday.
Clementson married Suzanne Nightingale, 49, in a private morning ceremony May 20 on a beach in Brewster, three days after state law granted gay and lesbian couples the right to apply for licenses.
When a wire service picture of their vows circulated through the country, Clementson was soon reprimanded by the church board who ordered her to repent. When she refused, she was stripped of her teaching credentials and her membership."
Rick
Here (thanks to Larry Solum) is the abstract to Francesco Parisi's latest paper, one that I imagine will be of interest to many Mirror of Justice folks (Parisi is a Roman Catholic law professor):
"During its relatively short history, the law and economics movement has developed three distinct schools of thought. The first two schools of thought, often referred to as the Chicago or positive school and the Yale or normative school, developed almost concurrently. The functional school of law and economics, which developed subsequently, draws from public choice theory and the constitutional perspective of the Virginia school of economics to offer a third perspective which is neither fully positive nor fully normative. Various important methodological questions have accompanied the debate between these schools concerning the appropriate role of economic analysis in the institutional design of lawmaking and the limits of methods of evaluation of social preferences and aggregate welfare in policy analysis. These debates have contributed to the growing intellectual interest in the economic analysis of law."
Rick
