Rob's kind mention in his last post of the Villanova conference next fall was a reference to the second annual conference on Catholic Social Thought and the law to be sponsored by Villanova's new Journal of Catholic Social Thought. Several of us in the blog group, as well as some other colleagues and friends, participated in the first conference last fall; Mirror of Justice was one of the fruits of that very productive gathering. Next fall's conference will focus on the significance of the CST concept of subsidiarity for the law. The keynote speaker will be a non-legal specialist in CST who will provide some insight on the concept (speaker suggestions welcomed). This will be followed by 6-8 papers on the concept's meaning, applicability, and usefulness for different fields of law and for legal theory. Among specialists in American law, we also hope to have European (or other non-US) specialists in both secular and CST versions of subsidiarity. The conference will be one day, Oct 8, 2004, and held at Villanova. Please consider this a call for paper proposals from both my blog-mates and our readers. It would be helpful to have proposals sent to me by May 15, 2004. Feel free to give me a call if you would like to discuss your ideas.
Wednesday, March 10, 2004
Speaking of Subsidiarity...Call for Papers
Tuesday, March 9, 2004
Subsidiarity and Centralization
Prompted by Rick's post below, I read Nick Barber's paper, The Limited Modesty of Subsidiarity. I recommend it highly. Barber draws several broad distinctions between the Catholic vision of subsidiarity and the European Union's vision. The EU invokes subsidiarity as a principle governing the allocation of power among public bodies, while the Catholic model expands its focus to the allocation of all collective bodies, public and private. He points out that modern liberals will have a much easier time signing on to the EU's rather technocratic framework as compared to the value-laden vision of the Catholic model.
While most of Barber's commentary strikes me as sensible and insightful, I do disagree with his insistence that Catholic subsidiarity is neutral as to the devolution of state power. He argues that "the Catholic doctrine does not embody a preference for smaller government, or for devolving power to smaller units," but simply urges that "smaller units should get the power when they are able to exercise it properly -- there is no bias against centralisation." Certainly the Catholic model of subsidiarity does not categorically reject centralization, but I'm not sure how he can come to the conclusion that there is not even a preference for decentralization, especially in light of this foundational passage from Quadragesimo Anno (a passage he quotes, curiously):
". . . that most weighty principle, which cannot be set aside or changed, remains fixed and unshaken in social philosophy: Just as it is gravely wrong to take from individuals what they can accomplish by their own initiative and industry and give it to the community, so also it is an injustice and at the same time a grave evil and disturbance of right order to assign to a greater and higher association what lesser and subordinate organizations can do. For every social activity ought of its very nature to furnish help to the members of the body social, and never destroy and absorb them."
What is this passage, if not a preference for decentralization? Barber's comments imply that Catholic social teaching simply wants social problems to be addressed effectively, regardless of the level at which that occurs -- if a government agency can feed your kids as effectively as you can, so be it. Subsidiarity, understood in the broader context of CST, unmistakably calls for individuals and the groups to which they belong to exercise direct control over the circumstances of their existence where possible. (This is not to suggest that the call for decentralization is unfettered, for effective decentralization presupposes that individuals and their groups are empowered and equipped to help themselves, and such empowerment may require an active state role.)
Despite our disagreement on a couple of key points, Barber's essay is well worth reading, and is further confirmation that this fall's CST conference at Villanova devoted to subsidiarity should spark some intriguing and wide-ranging conversations.
Rob
Monday, March 8, 2004
Politics, CST and the Religious Sense
Boy, after a few sleepy days on the blog, no sooner do I leave the country than there’s a torrent of great posts, plus two questions specifically addressed to me from my co-bloggers. I’ll defer discussion of the subsidiarity paper that Rick mentions until I’ve finished reading it (though here’s a preview: at a first glance, I don’t think Barber really appreciates how comprehensive the personalistic foundations of subsidiarity are in the Catholic tradition), and comment briefly on the political debate below in indirect response to Mike’s question. First, I’ll say right up front that I find arguments over which political party’s policies better exemplify Catholic social thought to be mostly sterile discussions that often end up substituting moral abstractions for concrete human reality. One of the greatest virtues of the Christian position that CST represents is that its starting point and touchstone is the fact of human needs and our desire for truth, freedom and happiness – not programs or projects. The principles of CST are expressions, distillations, of an experience of life, not the other way around. CST is therefore fundamentally not ideological, and indeed it is specifically anti-ideological – that is, it gives us criteria of judgment with which to expose and critique all ideological positions, whether of the left, right or center, in favor of the real needs of human persons. Second, the most fundamental human need is that of meaning; i.e., the quest to satisfy the religious sense. That’s why in Catholic thought religious freedom is properly regarded as the first and truest human right, the foundation for all others. For that reason, I do think that it is hard to overstate how vital it is that political life be open to the human impulse to seek meaning and to seek satisfaction of the desire for truth that our reason points us toward. That dynamic is lived and formed principally through religious life and through education. So, without entering into the dispute about how specific parties and candidates stack up, I do strongly endorse Rick’s plea to regard those things with utter and uncompromising seriousness in judging our politics. With respect specifically to the relationship of religion to politics, although I would expect that Vince and I do not differ on this, I do think his post below could unintentionally be read as reducing the question of religion in public life to competing sets of moral principles rather than as something much deeper than and antecedent to ethics or politics. Our judgment shouldn’t be a function of “which particular expression of religious morality does each political party favor” so much as a question of “how can our political life be made most open to and supportive of our human need for and desire to satisfy our religious sense?” From that point of view, some contemporary political positions are decidedly more hostile to the truth of the human person than others are, even ones that can appear in other ways quite benign when the starting point is ethics rather than ontology, doing rather than being. And now you can call me coy, but having posed the question I won’t answer it. I struggle to do so all the time, and I think we all should lest the ever-present temptation to ideology and utopia should triumph over reality.
Symposium on the Blaine Amendments
The latest volume of the First Amendment Law Review is a symposium on the Blaine Amendments specifically, and the "Separation of Church and State" more generally. Oddly enough, the volume was actually published on the day the Court decided Locke v. Davey. My own essay, "The Theology of the Blaine Amendments," is included, as are several others that will be of interest to Mirror of Justice readers. In particular, Fred Gedicks explores the question whether these provisions have retained their anti-Catholic "social meaning" (here), and Marc Stern contends that, to the extent the Blaine Amendments were anti-Catholic, they were an understandable reaction to the anti-liberalism of certain 19th Century papal statements (here).
Any thoughts?
Rick
Sunday, March 7, 2004
New paper on subsidiarity
Thanks -- yet again -- to Larry Solum for the tip on this paper by Nick Barber, "The Limited Modesty of Subsidiarity." Much of the paper is devoted to exploring what the author regards as the differences between the "Catholic doctrine of subsidiarity" and the version that plays such an important role in the "constitutional structure of the European Union." Barber seems intent on demonstrating that EU subsidiarity can stand on its own, and should be evaluated on its own, wholly and apart from the Catholic model. As he puts it, "the European model could gain support from a variety of political positions, and need not rest on the same ideological arguments as the Catholic doctrine."
In particular -- and this seems quite relevant to many of the policy disagreements that we have already seen on this blog! -- Barber spends time developing the claim that, unlike the EU doctrine, the Catholic version of subsidiarity contains "no bias against centralisation." Rather, "the Catholic doctrine requires that . . . power be allocated to the correct institution."
Barber also notes that European doctrine, unlike (in his view) Catholic doctrine, "takes account of human weaknesses," and "recognises that apparent advantages of centralising can sometimes be overstated, or can evaporate after the shift has taken place."
I would appreciate the reactions of my colleagues -- including Paolo, Rob, and Steve -- who have written recently about the notion of subsidiarity. I found the paper quite provocative and interesting, particularly the (largely, but not always, implicit) claim that while the Catholic notion of subsidiarity is compelling when it comes to civil society, families, and mediating associations, it is -- precisely because it (allegedly) worries too little about centralization -- less helpful when it comes to questions of allocating state power.
Rick
Two Interesting-Looking Articles
Over at Larry Solum's Legal Theory blog, there are links to (at least) two relatively recent papers that will likely be of interest to "Mirror of Justice" readers. First, Larry's "Download of the Week" is a paper entitled, "Unjust War," by Jeff McMahan of Rutgers (available here).
Also, the University of Minnesota's Oren Gross has posted on the SSRN his paper, "The Prohibition of Torture and the Limits of Law." Here is the abstract:
"The debate about the moral and legal nature of the prohibition on torture and about the permissibility of carving out exceptions to that ban is generally conceptualized as a clash between two opposing poles with no middle ground between them. One may support an absolute ban on torture. Alternatively, one may believe that the duty not to torture, even if generally desirable and laudable, does not apply in certain exceptional circumstances, or, even if it does apply, is overridden, canceled or trumped by competing values.
This paper defends an absolute prohibition on torture while, at the same time, arguing that truly catastrophic cases, such as the paradigmatic ticking-bomb scenario, should not be brushed aside as merely hypothetical or as either morally or legally irrelevant. The paper suggests that the way to deal with the "extreme" or "catastrophic" case is neither by reading it out of the equation nor by using it as the center-piece for establishing general policies. Rather, the focus is turned to the possibility that truly exceptional cases may give rise to official disobedience, i.e., public officials may step outside the legal framework and be ready to accept the legal ramifications of their actions. I argue that the prospect of extralegal action supports and strengthens the possibility of formulating and maintaining an absolute prohibition on torture."
It does not appear (unfortunately) that Gross engages specifically with the work of my colleague John Finnis, whose work on "exceptionless moral norms" would seem relevant here. See, e.g., Moral Absolutes: Tradition, Revision, and Truth (1991) (available here).
Rick
The Criminal Law's "Special Part"
This weekend, the Louisiana State University Law Center is hosting a conference on "The Theory of the Criminal Law’s 'Special Part'"; that is, on the "dimension of criminal law that identifies and defines the specific offenses that are subject to criminal sanctions." Click here for more information. I regret that I am not able to attend, and would welcome reports from anyone who did attend.
Rick
Saturday, March 6, 2004
2004 and Beyond
As many of you know, I have strong thoughts about this election and the current differences between the Democratic and Republican parties. I am much more passionate, however, about our common CST project, which transcends politics, political parties, and this election year. The Church's social teaching will always be in tension (and hopefully dialogue) with the state and the political parties. As Catholic lawyers and academics who are committed to the Catholic faith and the Social Teaching that flows from that faith, we can use our talents to tease out the implications of Catholic Social Teaching for the law in a pluralistic secular state, confront specific structures of injustice, and work to expose the danger of building a society of liberty and equality for all on the sandy foundation of the autonomous individual while proposing a vibrant and viable alternative rooted in a Catholic understanding of the human person.
To be sure, this election is part of that puzzle, but to my mind it is but a small part of the attempt to transform our culture from a culture of death (in all its forms - abortion, materialism, etc) into a culture of life that values the dignity of each individual and that understands that the common good is something more than the aggregate of individual preferences and desires.
On all fronts, we have our work cut out for us. Just as an example, last weekend, I judged ten or twelve high school Lincoln-Douglas value debate rounds where the issue pitted individual liberty v. the common good. Not surprisingly every debater (including the ones from the Catholic high school) viewed liberty through the prism of liberal individualism and every debater viewed the common good as the aggregate of individual conceptions of the good.
My question to my fellow bloggers, how do we re-introduce an alternate (and more realistic) conception of the person and society into a culture that largely has not been trained to hear or make sense of our arguments? In other words, how do we get traction? Paolo, does Luigi Guisanni have any insights that might help us here?
Yes, but...
I'd like to respond to Rick's quibble re my post with a classic Catholic response: "yes, but..." (And this will be my last post on Kerry and the election as well!) Rick is absolutely right on the Democrats' record on school choice and now on their attitude toward Catholic health care. Their positions on those issues are of a piece on their position with abortion, and can be added to the reasons why I can't be comfortable with or, more important, welcome in the party. The Republicans obviously are better on school choice as well as abortion. There's my "yes" in response to Rick. But I believe that Republican enthusiasm for religion extends only to the religious right. And "religion" does not equal the "religious right." The religious spectrum (including the Catholic spectrum) is much broader than that, and I am not sure that the kind of Catholic values that Vince is talking about would be welcome under the Republican tent. I suppose the Democrats are somewhat more "statist" than the Republicans (although the Republicans are always delighted to use the state to favor their pet special interests), and they are clearly more inclined to favor a strict seperation of Church and State, but when one evaluates the substance of their policies on whole host of issues that resonate in Catholic Social Thought - race, poverty, war and peace, capital punishment, the dignity of labor, the value of community - they tend to be more consistent with what I and Vince would regard as core Catholic values, even if they derive those policies from entirely secular principles. That being said, I remain as unhappy with each party as I was before -- although Rick has usefully reminded me of some other reasons why I should be unhappy with the Dems.
-- Mark
Friday, March 5, 2004
Catholics and American Politics: A Quibble
As Mark predicted when we launched this blog, the group of us disagree strongly when it comes to translating, applying, and (perhaps) rank-ordering the principles of Catholic Social Thought in the rough-and-tumble of political life. Although I am, I admit, a hopeless political junkie, I do not plan to post (after this) on the Bush v. Kerry / Election 2004 matter. A few quick thoughts, though, "for the record":
In my view, Mark's statement -- "the Republicans are usually wrong about everything else (i.e., other than abortion) we care about as Catholics" -- leaves out (at least) two other crucial issues where, in my judgment, the Republican position is to be preferred by Catholics: Educational choice and religious freedom. The Democrats' current implacable and total opposition to school choice (and the hostility to religious schools that often underlies that opposition) is, to me, much more scandalous than, say, the Republicans' support for lower taxes. On my reading, Catholic teaching is unambiguous on this point: parents have the right to choose religious schools for their children, and governments ought to assist poor parents in exercising this right. In addition, on the question of the autonomy, independence, and integrity of religious institutions, hospitals, associations, schools, etc., I think the Republican platform is, on balance, to be preferred. The recent Catholic Charities case, and the efforts underway to require Catholic hospitals to perform abortions, provide, I think, some support for my belief.
Also, and in candor, I do not recognize the "overall political project of the Republican party" -- which is said to be "extremely hostile to a Catholic worldview" -- in the descriptions and discussion provided by my friend and colleague Vince (any more than, I expect, he and I would recognize the "overall political project of the Democratic Party" if someone were to describe it as a project of relentless secularization, social atomism, political statism, and moral relativism). It is far from obvious to me that it is distinctively part of the Republican project (rather than a fault with American culture generally) to celebrate the "aggressive pursuit of wealth," to support a "consumer culture driven by materialism and in which success is measured by how much money you make," or to direct "public money . . . to the business of favored campaign contributors."
I hope my colleagues agree that informed, thoughtful, conscientious CST Catholics can conclude that, at the moment, the Republican package is to be preferred, and that those who come to this conclusion do not dislike the elderly, are not indifferent to the poor, and believe that wars should be rare and must be just. We believe -- reasonably, even if not correctly -- that human dignity and the common good are, on balance, better served, and Catholic Social Teaching better actualized, by programs that emanate from commitments to de-centralized and limited government, to a public square that welcomes and protects religious argument and activity, to moral realism in foreign policy, and to -- where and to the extent appropiate -- cost-benefit and results-oriented analysis in economic and social-welfare policy.
In any event, I hope this exchange between disagreeing friends will confirm for "Mirror of Justice" readers that Catholic Social Teaching is a rich resource for anyone hoping to live faithfully as an engaged citizen. I certainly believe that my colleagues have that goal, and I hope they believe just as strongly that I share it.
Rick
UPDATE: A Notre Dame law student (with a blog) disagrees with my statements above about school choice. She writes:
I agree that parents should across the board be able to choose religious schools for their children; but I cannot concede that voucher programs are the best way to do that. . . . I am fortunate that my parents were in a position to make an authentic faith choice to send me to Catholic schools. . . . I don't feel as though I endured any detriment for that choice; but I know too that poor parents in our nation's most volatile places don't have the same choice my parents had. And for that reason, I can't really accept the band-aid solution of school vouchers, even as a temporary measure. An educated populace is essential not only to out nation's continued survival and progress but also to its security. Our commitment to education as a right and a necessity is not served by an active acknowledgement that sometimes the only good decision is flight from public schools. While school vouchers may enable some parents to make a faith choice to send their children to religious schools, they are essentially a herald that public schools are too often dangerous and ineffective. Parents should certainly be able to make a faith choice -- but they should not be forced to make a quality choice."
I very much appreciate this student's thoughts. In my judgment, though, these are not convincing arguments against school vouchers for low-income parents who believe that their children are not being well served in the government-run schools (I also think that, for what it's worth, the CST tradition weighs heavily against these arguments). Still, I encourage readers to check out this student's blog and post.
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