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 12, 2004

Political Dimension

By Vince Rougeau

I wanted to follow-up on Rob's comments regarding the "politcal" leanings of those who support "action" or "anthropology." First, I think it is important for those of us who believe in a Christian anthropology to remember that we agree more than we disagree or, put another way, we are addressing issues based on a shared understanding about what is fundamentally true. There are, nevertheless, some important points of divergence when it comes to how we deal with the practical realities of living in the world.

I think both American political parties are deeply rooted in an anthropology of autonomy. At base, the Republican vision is one in which the individual needs to be set free from communal constraints so that personal freedom can be maximized in the economic/public sphere. This "freedom" justifies all kinds of inequalities in American society (and around the world) primarily in the service of an ever expanding market. It also helps explain the growing commodification of American life. These changes do not benefit the blue collar and middle-class people who have become Republican voters to the extent many of them believe (see e.g., Elizabeth Warren's The Two Icome Trap), but in order to woo those voters, the Republican party has, in my view cynically, taken a traditionalist position on cultural issues. This is simply a natural extention of the Southern Strategy.

The Democrats need individual autonomy to free individuals from communal contstraints in the cultural/private sphere. They were able to seize on the inability of American conservatives to deal with serious questions of social justice regarding race. Since then, however, the Democrats have allowed themselves to be captured by the idea that unfettered personal freedom is the highest good. We should all be able to live as we wish, and the state will clean up our messes. The cultural and economic insecurities of African-Americans, poorer immigrant groups, and others have given the Democrats a reliable base of voters who are actually more conservative on social issues than the party, but who are afraid to trust the Republicans. The primary beneficiaries of the social freedom offered by the Democrats are the cultural elites of the large cities and their suburbs--well educated professionals, etc. Indeed, the money elites of the Republican party are also key beneficiaries of the highly permissive culture championed by the Democrats.

So, I don't think either party presents a choice that a Catholic should feel good about, but I suppose individual Catholics might take a pragamtic view that one party is "less bad" than the other. Either way, the entire body of the social teaching stresses the need to confront structures of social, economic and cultural power that undermine human dignity, as we understand it in our tradition. In particular, Sollicitudo rei Socialis and Centissimus annus develop the concepts of structural sin, solidarity, and the priority of the poor that, when applied to American politics, show how broken our political system is. But human life is imperfect, and so are human institutions. Catholics live in the world and the credibility of the social teaching is rooted in its witness of a lived Catholic faith. In Evangelization in the Modern World , Pope Paul VI made this point: ". . . the first means of evangelization is a witness of an authentically Christian life, given over to God in a communion that nothing should destroy and at the same time given to one's neighbor with limitless zeal. . . modern man listens more willingly to witnesses than to teachers, and if he does listen to teachers, it is because they are witnesses."

Vince

Wednesday, February 11, 2004

On the Death Penalty

By Steve Bainbridge

Probably the best analysis of the death penalty I've ever read was Avery Cardinal Dulles' April 2001 First Things article Catholicism & Capital Punishment. His careful and nuanced analysis concludes by extracting 10 theses from the Magisterium:

  1. The purpose of punishment in secular courts is fourfold: the rehabilitation of the criminal, the protection of society from the criminal, the deterrence of other potential criminals, and retributive justice.
  2. Just retribution, which seeks to establish the right order of things, should not be confused with vindictiveness, which is reprehensible.
  3. Punishment may and should be administered with respect and love for the person punished.
  4. The person who does evil may deserve death. According to the biblical accounts, God sometimes administers the penalty himself and sometimes directs others to do so.
  5. Individuals and private groups may not take it upon themselves to inflict death as a penalty.
  6. The State has the right, in principle, to inflict capital punishment in cases where there is no doubt about the gravity of the offense and the guilt of the accused.
  7. The death penalty should not be imposed if the purposes of punishment can be equally well or better achieved by bloodless means, such as imprisonment.
  8. The sentence of death may be improper if it has serious negative effects on society, such as miscarriages of justice, the increase of vindictiveness, or disrespect for the value of innocent human life.
  9. Persons who specially represent the Church, such as clergy and religious, in view of their specific vocation, should abstain from pronouncing or executing the sentence of death.
  10. Catholics, in seeking to form their judgment as to whether the death penalty is to be supported as a general policy, or in a given situation, should be attentive to the guidance of the pope and the bishops. Current Catholic teaching should be understood, as I have sought to understand it, in continuity with Scripture and tradition.
As they say in the blogosphere, go read the whole thing.

Murphy on "Christianity and Criminal Punishment"

By Rick Garnett

Following up on my exchange (below) with Vince, I recommend enthusiastically -- to anyone interested in what Christianity means for our thinking, and our acting, regarding criminal punishment -- an essay by Professor Jeffrie Murphy, of Arizona State University: "Christianity and Criminal Punishment." Unfortunately, I have not been able to find a link to the paper, but it is available in the journal, Punishment and Society, and also as a chapter in Murphy's new book, "Getting Even: Forgiveness and its Limits." Many readers are likely familiar with another work of his, "Forgiveness and Mercy" (with Jean Hampton).

Here's a blurb from the abstract: "Christianity organizes thinking about punishment around the value of love. Love requires a focus on the common good and on benefit to the soul or character. Punishments harmmful to the soul are to be avoided, and punishments beneficial to the soul are to be favored."

Rick

Anthropology vs. Action: the Political Dimension

By Rob Vischer

From my reading of their February 10 posts below, Vince emphasizes the need to do justice even if it requires us to join forces with those who do not share (and are unlikely ever to share) our Christian anthropology, and Rick (as well as Mike) emphasizes the need to identify underlying anthropological assumptions before we can adequately grasp what course of action is just. Does this divergence in emphases also underlie the political split between left-leaning and right-leaning Catholics?

As argued in a recent column by Peggy Noonan, President Bush (and conservatives generally) are inclined more toward philosophy than policy. In a sense, Bush’s worldview takes precedence over the particulars of government programs and initiatives. Senator Kerry, by contrast, ticks off policy proposals with a smoothness that Bush can only dream of, but he’s much fuzzier regarding a motivating philosophy, other than trumpeting the familiar individualist themes of liberalism.

Perhaps Catholics who are drawn to Kerry tend to downplay his elusive moral anthropology – which seems largely devoted to individual autonomy – because he promises action in a lot of venues where justice can be furthered. By contrast, perhaps Catholics who are drawn to Bush tend to focus on his big-picture anthropology-laden statements extolling the virtues of subsidiarity, the sanctity of life, etc. In focusing on the appeal of his articulated anthropology, are they holding their noses as to the actions emanating from the more conservative side of his compassionate conservatism? The rich-friendly tax cuts, relaxed environmental stewardship, and questionable interpretation of the just war tradition are examples of areas where a Catholic focused first on action may find supporting Bush to be untenable. But a Catholic focused first on anthropological assumptions may find supporting Bush unavoidable when they hear the Democratic candidates pandering before NARAL, for example, even if Bush’s strikingly different anthropology is unlikely to result in much concrete action in that particular context – i.e., the chances of overturning Roe remain small.

So does the Republican wing of the Catholic Church tend to emphasize anthropology first, action second, while the Democratic wing tends to emphasize action first, anthropology second?

These comments are deliberately provocative, of course, and I don’t mean to open up a full-scale political debate. I also realize that the likely response will insist that action and anthropological assumptions are inextricably linked, and I agree. But isn’t the ordering of these concepts highly relevant when it comes to a Catholic’s choice between Kerry and Bush?

Rob

Legislative Moralism

By Rick Garnett

In his working paper, "Justice Kennedy's Libertarian Revolution," my friend Professor Randy Barnett contends that Justice Kennedy's opinion in Lawrence v. Texas -- the recent decision invalidating that State's ban on sexual relations between persons of the same sex -- holds out the promise of a "libertarian revolution" in individual-rights jurisprudence. The paper is provocative, and well worth reading.

At one point, Professor Barnett asserts that "a legislative judgment of 'immorality' means nothing more than that a majority of the legislature disapproves of this conduct" (p. 15). And, because courts are unable to "adjudicate between the claims of a legislature that a particular exercise of liberty is 'immoral' from the contrary claim by a defendant that it is not" (p. 15), Barnett concludes that to permit legislation to be justified "solely on the basis of morality would recognize an unlimited police power in state legislatures" (p. 15).

Now -- wholly and apart from the prohibition at issue in Lawrence -- all three of these quoted points from Barnett's paper strike me as "problematic." In particular, though, I wonder what my colleagues at "Mirror of Justice" think of the first statement, i.e., that "a legislative judgment of 'immorality' means nothing more than that a majority of the legislature disapproves of this conduct" (p. 15). In the Catholic tradition of moral realism, hasn't a judgment of "immorality" has been thought to signaling more than (mere) disapproval. Can that tradition tell us anything about "legislative judgments of 'immorality'", and the extent to which they may or should serve as the basis for regulation?

Rick

Tuesday, February 10, 2004

Anthropology and the Structures of Injustice

By Michael Scaperlanda

I agree wholeheartedly with Vince that we are called "to confront structures of injustice through radical commitment to Christian love and the common good, grounded in the God-given dignity of the human person." This will often take the form of direct action through work with immigrants, the poor, the homeless, the prisoner and by our witness of Christian love "by refusing to acquiesce in social, legal, and politcal structures that debase and dehumanize certain human beings."

A (maybe THE) major structure of injustice in our society is a malformed anthropology, which provides the foundation for many of the other structures of injustice. The most prevalent anthropological assumption in our culture today is a form of secularist liberal individualism, which marginalizes and privatizes the transcendent and the good while exalting the individual as its own god --the maker of its own history and destination. In this sort of society (our society), Vince's call to pursue the "common good" becomes incoherent because "the good" is not held in common. All that is left is the power of the state to play traffic cop between competing conceptions of private good.

We cannot force someone to accept our anthropology - our understanding of what it means to be human - but I think (like Rick) that there is good reason to raise the question and also hope (not to be confused with optimism) that this anthropological perspective will resonate with others. More on these two points later ...

CST, Anthropology, and Retribution

By Rick Garnett

I take Vince's points (below) that placing "too much emphasis on changing the underlying assumptions of our interlocutors may prevent us from dealing with injustice head-on" and that "we should be doing more than talking; we also should be acting." As he quite rightly says, anthropological reflection should lead us to "confront structures of injustice through a radical commitment to Christian love and the common good, grounded in the God-given dignity of the human person."

Still, while I would not want to defend abstract anthropological reflection, divorced from all action, for its own sake, I would emphasize that there is the problem of identifying, before confronting, "structures of injustice." And, this process of identification, if it is going to be authentically Catholic, needs to proceed against the backdrop of Christian anthropology. I'm inclined to think that we are called just as clearly to witness to this distinct anthropology -- which is not, it should be emphasized, the anthropology of liberal individualism and autonomy -- as we are to confront structures of injustice. After all, these structures of injustice themselves proceed from, in many instances, un-Christian anthropological premises (See, e.g., the "mystery passage" in Planned Parenthood v. Casey).

Vince also raises an important point about CST and the criminal law. He observes that "our weak sense of the common good makes it easy to isolate and dehumanize criminals, which has produced a system of criminal justice grounded in retribution as opposed to rehabilitation and reintegration." Now, I suspect that Vince and I agree almost entirely about the many problems with our system of criminal justice. That said, I do not think that CST-based reflection should lead us to be critical of "retribution," properly understood. It seems to me that "retribution" -- which should not be equated, as it too often is, with "revenge" -- remains the proper justification and end of punishment. As CS Lewis once wrote, retributive theory is likely more consistent with a commitment to the dignity and agency of persons than other criminal-law models.

Unfortunately (in my view), the United States Conference of Catholic Bishops' document, "Responsibility, Rehabilitation, and Restoration (2000), seems to misunderstand "retribution," and to equate it with "vengeance." Therefore, it goes on to state that "our society seems to prefer punishment to rehabilitation and retribution to restoration thereby indicating a failure to recognize prisoners as human beings." In Evangelium vitae, though (par. 56), John Paul II confirms that "the primary purpose of the punishment which society inflicts is 'to redress the disorder caused by the offence.' Public authority must redress the violation of personal and social rights by imposing on the offender an adequate punishment for the crime, as a condition for the offender to regain the exercise of his or her freedom. In this way authority also fulfils the purpose of defending public order and ensuring people's safety, while at the same time offering the offender an incentive and help to change his or her behaviour and be rehabilitated." This notion of "redressing the disorder", and this insistence on "punishment" as a "condition" for "regain[ing] the exercise of . . . freedom," strikes me as a better, and Catholic, understanding of "retribution." This understanding does not support or yield, for example, excessively harsh or degrading punishments, mandatory minimums and "three stikes" laws, etc. It reminds us, though, that the same notion of "human dignity" that should constrain us when we punish also requires us to recognize other persons' agency, and therefore, sometimes, to punish.

Rick

Moral Anthropology and the Death Penalty

By Vince Rougeau

I wanted to raise a question regarding our commitments to the dignity of the human person as Catholics and Christians. Rick presented what I think is an accurate portrayal of the general disagreement that exists today about "moral anthropology" as it relates to the death penalty. Rick suggests that we are not all speaking from the same place when we talk about the death penalty, and that Christians need to reframe the discussion and in order to avoid lapsing into arguments based on an "anthropology of autonomy" when we enter into discussions. So far, so good.

My concern is that placing too much emphasis on changing the underlying assumptions of our interlocutors may prevent us from dealing with injustice head-on. In other words, we should be doing more than talking; we also should be acting. The social teaching calls us to confront structures of injustice through a radical commitment to Christian love and the common good, grounded in the God-given dignity of the human person. Furthermore, we have special obligations to the poor, weak, despised, and excluded.

The death-penalty culture in the United States is rooted in structures of injustice in American society that have come under intense scrutiny in the social teaching. For instance: (1) It is deeply intertwined with our history of racism and continues to be applied in racially disparate fashion; (2) Our entrenched money culture produces a crimimal justice system consistently favors those with wealth; (3) Our culture of individulalism, and our weak sense of the common good, makes it easy to isolate and dehumanize criminals, which has produced a system of criminal jutice grounded in retribution as opposed to rehabilitation and reintegration; (4) Innocent people are routinely convicted of capital crimes.

This is a situation that "cries out in justice" for a response. Working to eliminate the death penalty, for example, is quite consistent with a Christian anthropolgy that sees the human person as sacred and inherently social. It may even be required in a situation where, as my colleague Bob Rodes says, there is a "special option for the rich." Catholic social teaching call us to solidarity with the poor, the undereducated, the mentally disabled, children, and others who are unfairly treated by our system of criminal justice.

I cannot force someone to accept my understanding of moral anthropology. I can, however, witness Christian love by refusing to acquiesce in social, legal, and political structures that debase and dehumanize certain human beings because their fellow citizens consider them to be of lesser value. I may even change a few minds along the way.

Saturday, February 7, 2004

Integrating Catholic Social Thought into Legal Scholarship

By Steve Bainbridge

Since Rick and Rob have gotten us off to a good start on the role faith plays in scholarship, I thought I'd chime in with some personal observations. One of my principal scholarly interests is Catholic social teaching on corporations and the economy. In fact, I am the only person I know who came to Catholicism through economic analysis of corporate governance. A couple of years ago I wrote a series of law review articles about participatory management – i.e., employee involvement in corporate governance. One of the questions in which I got interested was whether employees have a right to participate in corporate decisionmaking, which lead to an inquiry into natural law, which in turn stimulated an interest in faith-based analyses of corporate governance. At the time, I was an evangelical disgruntled with the state of evangelical scholarship (Mark Noll, who I regard as the doyen of evangelical scholars and church historians, wrote a great book on this problem: The Scandal of the Evangelical Mind). Catholic social teaching struck me as the only well-developed faith-based account around. I relied on it in writing Corporate Decisionmaking and the Moral Rights of Employees: Participatory Management and Natural Law, 43 Villanova Law Review 741 (1998). Reading the papal encyclicals on the economy, especially John Paul II’s Centesimus Annus, and Michael Novak’s books, especially Toward a Theology of the Corporation (which I also keep meaning to review), in doing the research on that project got me interested in Catholicism. (I’m also a longtime reader of the fabulous magazine First Things, which probably lay the groundwork.) One thing lead to another—i.e., RCIA–and my wife and I eventually were received into the Catholic church.

My first post-conversion attempt at merging my interest in Catholic social teaching and corporate governance was The Bishops and the Corporate Stakeholder Debate, 4 Villanova Journal of Law and Investment Management 3 (2002). That essay critiqued Catholic social teaching on corporate social responsibility. Specifically, it focused on one of the policy recommendations made by the U.S. Bishops in their pastoral letter on economic justice, Economic Justice for All: Pastoral Letter on Catholic Social Teaching and the U.S. Economy. In that document, the Bishops addressed the long-running stakeholder debate; i.e., they claimed that decisionmaking by directors of public corporations should take into account the interests of corporate constituencies other than shareholders. My article evaluated three ways in which the Bishops’ position might be translated into public policy: (1) directors could be given nonreviewable discretion to make trade-offs between shareholder and stakeholder interests; (2) directors could be given reviewable discretion to make such trade-offs; or (3) directors could be required to make such trade-offs subject to judicial (or regulatory) oversight. None of these approaches, I argued, is an improvement on current law; to the contrary, all are worse. The first approach would be toothless, the second would increase agency costs, and the third would either prove unworkable or pose an unwarranted threat to economic liberty (or both).

It might seem somewhat churlish to have dissented so soon after switching sides. In my view, however, it is the task of Catholic intellectuals to exercise critical reflective judgment with respect to society, the Church, and the relationship between the two. Of course, I recognize that there is a fine line between the exercise of critical evaluative judgment and illegitimate dissent. With respect to the stuff I write about, however, I don’t think this is a problem. When it comes to issues such as the degree of state intervention in the economy, the Church outlines basic principles but recognizes substantial latitude with respect to their translation into public policy. Nowhere, for example, does the Church state what percentage of the economy should by controlled by the state, which leaves a great deal of room for prudential judgment by the Catholic laity. In promulgating their pastoral letter, moreover, the Bishops expressly acknowledged that their “prudential judgments” about specific policy recommendations were not made "with the same kind of authority that marks our declarations of principle." (xii.) More to the point, perhaps, in Centesimus Annus (para. 43), the Pope reminded us that the Catholic "church has no models to present."

On the other hand, our founder mark Sargent has a paper in the works that (at least in the draft I saw) takes me to task for being outside the mainstream of CST. So you can expect what the diplomats call "frank and full" exchanges of views in the none-too-distant future!

Friday, February 6, 2004

Moral Anthropology and the Practice of Law

By Rob Vischer

Rick raises a foundational concept for this weblog, for Catholic moral anthropology speaks not only to our understanding of law as an external object of study, but for those of us who are lawyers, to our understanding of a life within the law. It is certainly out of fashion to bring a transcendent understanding of the human person into the public sphere, whether in political life or legal practice, but that is precisely the guidance given by the Congregation for the Doctrine of Faith in its Doctrinal Note on Some Questions Regarding the Participation of Catholics in Political Life. Such pronouncements are prone to caricature, so I thought it might be helpful to clarify the relevance of moral anthropology to a life in the law by highlighting the distinction drawn by the CDF between religious and moral truth in the decision-making of public actors – politicians and lawyers alike.

Observing the nature of liberal political discourse, the CDF notes that “citizens claim complete autonomy with regard to their moral choices, and lawmakers maintain that they are respecting this freedom of choice by enacting laws which ignore the principles of natural ethics and yield to ephemeral cultural and moral trends, as if every possible outlook on life were of equal value.” Catholics and other like-minded citizens are reminded to contest the “falsehood of relativism, and with it, the notion that there is no moral law rooted in the nature of the human person.”

Discerning the content of this moral law must begin by recognizing that it is not a freestanding or random collection of prohibitions, but, as indicated in Rick’s post, a comprehensive worldview that emanates from “a correct understanding of the human person.” As such, Catholic lawyers, even when entering into the secular sphere of law, are bound by certain “fundamental and inalienable ethical demands,” including demands to “defend the basic right to life from conception to natural death,” to safeguard and promote the family “in the face of modern laws on divorce,” to ensure “the freedom of parents regarding the education of their children,” to protect minors and combat “modern forms of slavery” such as drug abuse and prostitution, to contest for religious freedom and the development of an economy “that is at the service of the human person and of the common good,” to help implement the principles of solidarity and subsidiarity, and to pursue peace.

But apart from these core values, the CDF does not presume that every lawyer or politician will reach the same conclusions as to the real-world ramifications of this moral anthropology. Noting that “a plurality of methodologies reflective of different sensibilities and cultures can be legitimate in approaching such questions,” the significant limitation is that “no Catholic can appeal to the principle of pluralism or to the autonomy of lay involvement in political life to support policies affecting the common good which compromise or undermine” such anthropological demands.

Crucially, in the CDF’s view, the non-negotiability of these ethical demands does not represent the illegitimate intrusion of religious dogma into the secular domain. Emphasizing that “such ethical precepts are rooted in human nature itself and belong to the natural moral law,” the CDF explains that “[t]hey do not require from those who defend them the profession of the Christian faith.” This is a necessary characteristic given “the rightful autonomy of the political or civil sphere from that of religion and the Church – but not from that of morality.”

So the moral precepts binding on the Catholic lawyer in all aspects of her identity are not coextensive with the tenets of her faith, and she need not feel compelled to mirror every nuance of her own religious beliefs in the means or ends chosen by her client. In this sense, the CDF espouses a limited value pluralism. There is no pluralism “in the choice of moral principles or essential values,” but there is a “legitimate plurality of temporal options” given the “variety of strategies available for accomplishing or guaranteeing the same fundamental value, the possibility of different interpretations of the basic principles of political theory, and the technical complexity of many political problems.” There is also, of course, a plurality of religious values in the political sphere, a plurality safeguarded by the inalienable moral right to religious liberty and freedom of conscience. This aspect of pluralism does not slide into relativism because it “is based on the ontological dignity of the human person and not on a non-existent equality among religions or cultural systems of human creation.”

Certainly the CDF has not ended the debate over how best to integrate this moral anthropology with the performance of a public function in a liberal democracy, but it has underscored that the integration is a non-negotiable endeavor for those who take seriously this conception of the human person.

Rob Vischer

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