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.

Saturday, October 5, 2013

So What Is Papa Bergoglio Really Saying

Once again another Pope Francis interview hits the temporal media with the La Repubblica interview written by Eugenio Scalfari, a well educated man who left the Church but desires to engage the Holy Father. It is clear from the La Repubblica publication that the Pope's comments were not recorded digitally or in notes but in a mental reconstruction by Senor Scalfari. Once again, the temporal press is taking elements of the interview out of a much deeper context so their selective emphases distort what the Pope actually said, some of which has a bearing on juridical and ecclesial issues, particularly the social teachings of the Church which are of interest to many in the Mirror of Justice community.

The United States Assistancy has an interesting publication called the "Studies in the Spirituality of Jesuits." The current issue, which came out today, has the first of a two-part publication of some of Father Bergoglio's writings as Jesuit Provincial and formator. These writings are translated and edited by Father Philip Endean, SJ of the British Province. Philip and I are friends even though we don't always agree on certain points. But agreement on everything is not essential to authentic friendship. Father Endean has done an important service in this translation project by showing what underpins the contemporary expressions of Pope Francis that are hitting the press today. I have just read the first installment of the translations of some of the early Bergoglio writings, and the contrast on some matters between Father Ratzinger and Father Bergoglio appear from time to time. But what demonstrates a union of the minds of this two men who became the Vicar of Christ is their mutual concern about sin, salvation, and elitism or self-referentialism. 

The Assistancy has kindly made Father Endean's most helpful work available HERE . I am confident that readers will find Father Bergoglio's past words informative and indicative of who he is and where he's going.

 

RJA sj

Kontorovich on the Council of Europe's Recommendation to Ban Circumcision

Eugene Kontorovich has an interesting and, to my mind, in portions persuasive comment on the Council of Europe's new recommendation that nations should consider banning circumcision. I say this as someone who disagrees with Professor Kontorovich about the constitutional merits of the test laid out in Employment Division v. Smith. Indeed, as I have written here before, there is a largely unfounded optimism in the wisdom and good will of democratic majorities that is presumed in the approach of Smith--a presumption that is borne out beautifully when the majority is with you, but less well when it turns against you. An aristocratic (in the Tocquevillian sense) buffer (see the judiciary) on the moral certitudes of popular, democratic fancy is a healthful thing, particularly when that buffer serves to remind the people of its fundamental, deeply rooted political traditions.

That is why I have some questions about the first half of Professor Kontorovich's comment, and it is also the reason that though I sympathize with the final line of his post, I find that the Smith approach is likely to make things much worse. But the second half seems right on target to me. A bit:

Yet from a broader perspective, such measures are [an] historic, epochal, dizzying step backward for religious liberty. They are illiberal and intolerant in the deep sense. Jews have been allowed to fully practice their religion on the Continent since even before the Enlightenment (though subject to other restrictions). Now, at the time of the supposed greatest openness and freedom, the end of religious wars, the central Jewish rite would be banned.

It requires an extraordinary moral certitude to conclude that one established the evil of a universal normative practice of the oldest monotheistic religion, a practice that Europeans, including anti-Semites, have tolerated for as long as Jews have been there. Burkeans they are not, at the Council of Europe.

This represents a massive failure of the liberal imagination. Tolerance requires, perhaps more important than legal restraints, habits of the mind. All religious practices seem odd and bizarre to outsiders. Tolerance requires understanding the importance of these practices to the practitioner – a lack of total certitude . . . .

Indeed, the new European conscience might find circumcision repugnant, but certainly not as repugnant as Protestants and Catholics in Europe for centuries regarded each other’s practices. Yet for over 300 years, they have been able to live and worship fully in each other’s countries. On this backdrop, anti-circumcision legislation shows how far back we have gone while making progress.

It seems that such laws are a product less of an anti-Semitic mind-set than an anti-religious one, in which a practice that seems odd is more likely to be barbaric if it is a religious rite. Today’s secularism may be less forgiving than yesterday’s pietism. . . .

There are important lessons for the U.S. Religious freedom depends in many ways on the tolerance of the majority, if one thinks as I do that Employment Division v. Smith was rightly decided. That tolerance has long existed, more or less, in a predominantly Protestant America, a Christian America, and a simply religious America. But it is not guaranteed.

Friday, October 4, 2013

Virtue and (or?) Happiness

My old friend Charles Krauthammer, with whom I served on the President's Council on Bioethics in the Bush years, is someone with whom I more often agree than disagree. But here is a recent exchange on which we part ways on some pretty basic ideas about political theory. I should note that both of us were speaking extemporaneously, rather than from prepared texts. (What you have here is a transcript prepared by J.R. Benjamin.) So Charles was responding to my remarks immediately after hearing them, with no tme to prepare his reply. Moreover, as my respondent, I suspect he felt an obligation to offer something of a critical perspective. I'm not sure if the two of us really disagree on the points under discussion quite as much as it appears we do here. What pleased me enormously was that after the exchange (which was at a Bradley Foundation symposium in Washington, D.C.) the great Gertrude Himmelfarb sought me out to say how much she agreed with me.  To me, than whom she has no greater admirer, that was like getting a commendation from Olympus.  Anyway, here is the transcript:

http://jrbenjamin.com/tag/robert-p-george/

Had I been given a chance to reply to Charles' reply to me, I would have struck hard against his contrasting of virtue with the concept of the pursuit of "happiness" in the Declaration of Independence.  The term "happiness" in the 18th century--and, in fact, until quite recently--did not refer simply to a pleasing or desirable psychological state--one that might be induced by virtue, vice, or, for that matter, some pharmacological product. It included the idea of flourishing or all round well-being, which necessarily was understood to involve virtue.  (As in "happy the man who walks the path of justice.") In other words, it was a morally inflected locution. So Charles, I believe, got tripped up a little by an anachronism. Incidentally, I've noticed a similar problem with old translations into English of Aristotle's works on ethics. "Eudaimonia" is translated as happiness.  That used to not mislead people, since the term was understood to mean something like "integral flourishing," not to refer merely to a desirable psychological state. Today, students read the old translations and are easily misled. A better translation of "eudaimonia" in contemporary English, I believe, is "flourishing"--but perhaps this claim will trigger a big debate.

Horrors in Nigeria

I have a piece at CNN World on horrific violations of religious liberty and other human rights in Nigeria:

"As Nigeria considers its future following this week’s celebration of its 53rd anniversary of independence, its leaders must confront a real and perhaps growing threat to the nation’s stability – Boko Haram. The radical Islamist group, whose name literally means “western education is a sin,” regards Nigeria’s federal and northern state governments, as well as the country’s political and religious elites, as morally corrupt. It rejects the West and secular democracy and seeks to implement its “pure” version of Shariah law. But overcoming the Boko Haram challenge will take more than a military response – it also requires an approach that addresses Nigeria’s tolerance of long-running sectarian violence, protects religious freedom and enforces rule of law.

"For the past two years, Boko Haram has been the primary perpetrator of religious-related violence and gross religious freedom violations in Nigeria. In August of this year, the U.S. Commission on International Religious Freedom (USCIRF), which I chair, issued a report highlighting the recent toll of Boko Haram’s targeted assaults on religious institutions and leaders.  The numbers are troubling.

"Since January 2012, Boko Haram has launched religiously-motivated attacks on 50 churches, killing at least 366 people; 31 separate attacks on Christians or southerners perceived to be Christian, killing at least 166 people; 23 targeted attacks on clerics or senior Islamic figures critical of Boko Haram, killing at least 60 persons; and 21 attacks on “un-Islamic” institutions or persons engaged in “un-Islamic” behavior, killing at least 74."

The entire essay is availble here:

http://globalpublicsquare.blogs.cnn.com/2013/10/04/nigeria-must-hold-extremists-accountable/

Thursday, October 3, 2013

Honoring Judge John T. Noonan, Jr.

Details will soon be available on the Villanova website about:

 

The Eighth-Annual John F. Scarpa Conference on Law, Politics, and Culture:

Exploring and Celebrating the Legacy of John T. Noonan, Jr.

 

Friday, November 15, 20013

Villanova University School of Law

 

The Honorable John T. Noonan, Jr., has served on the United States Court of Appeals for the Ninth Circuit since 1986, following a distinguished career in practice and teaching.  In a scholarly career spanning more than half a century, Noonan has written major works, some of them now classics, on a stunningly broad range of topics including usury, bribery, contraception, religious freedom, federalism, professional ethics, marriage and annulment, abortion, and jurisprudence.  The conference will explore aspects of many of the topics Noonan has studied and illuminated, emphasizing the thread that unites all of Noonan’s work: the development of doctrine.

 

 

Keynote Speaker

 

The Honorable John T. Noonan, Jr.

United States Circuit Judge

United States Court of Appeals for the Ninth Circuit

 

Speakers

 

William Cardinal Levada

Prefect Emeritus, Congregation for the Doctrine of the Faith

Holy See

 

Patrick McKinley Brennan

John F. Scarpa Chair in Catholic Legal Studies and Professor of Law

Villanova University School of Law

 

Richard Painter

S. Walter Richey Professor of Corporate Law

University of Minnesota Law School

 

Kenneth Pennington

Kelly-Quinn Professor of Ecclesiastical and Legal History

Columbus School of Law and School of Canon Law

The Catholic University of America

 

Reverend Michael Sweeney, O.P

President

Dominican School of Philosophy and Theology (Berkeley)

 

Joseph Vining

Harry Burns Hutchins Collegiate Professor of Law Emeritus

University of Michigan School of Law

 

 

 

 

 

 

RFRA Exemptions from the Contraception Mandate: An Unconstitutional Accommodation of Religion

That's the title of a very interesting, thoughtful, and provocative piece recently posted to SSRN by BYU law prof Fred Gedicks and co-author Rebecca Van Tassel.  Downloadable here.  The abstract:

Litigation surrounding use of the Religious Freedom Restoration Act to exempt employers from the Affordable Care Act’s “contraception mandate” is moving steadily towards eventual resolution in the U.S. Supreme Court. Both opponents and supporters of the mandate, however, have overlooked the Establishment Clause limits on RFRA exemptions,

The fiery religious-liberty rhetoric surrounding the mandate has obscured that RFRA is a “permissive” rather than “mandatory” accommodation of religion — that is, a voluntary government concession to religious belief and practice that is not required by the Free Exercise Clause. Permissive accommodations must satisfy Establishment Clause constraints, notably the requirement that accommodation not impose material burdens on third parties who do not believe or participate in the accommodated practice.

While there is little doubt that RFRA facially complies with the Establishment Clause, there is also little doubt that it violates the Clause’s limits on permissive accommodation as applied to the mandate. RFRA exemptions from the mandate would deny the employees of an exempted employer their ACA entitlement to contraceptives without cost-sharing, forcing employees to purchase with their own money contraceptives and related services that would otherwise be available to them at no cost beyond their healthcare insurance premium.

Neither courts nor commentators seem aware that RFRA exemptions from the mandate violate settled permissive accommodation doctrine, by shifting material costs of accommodating anti-contraception beliefs from the employers who hold them to employees who do not. One federal appellate court has already mistakenly dismissed this cost-shifting as irrelevant to the permissibility of RFRA exemptions from the mandate.

The impermissibility of cost-shifting under the Establishment Clause is a threshold doctrine whose application is logically prior to all of the RFRA issues on which the courts are now focused: If RFRA exemptions from the mandate violate the Establishment Clause, then that is the end of RFRA exemptions, regardless of whether for-profit corporations are persons exercising religion, the mandate is a substantial burden on employers’ anti-contraception beliefs, or the mandate is not the least restrictive means of protecting a compelling government interest.

And now, what practically everyone has been waiting for: "the world enlightens the Church"

George Neumayr nails much of what's wrong in what is unfolding in this pontificate.  

This Pope's private and erroneous opinions (e.g., that conscience is autonomous), shared with the whole world in the chosen format of magazines and newspapers, cannot but do great damage to souls.  This could easily be cause for despair, but since we have it on our Lord's own authority that the Church, His own mystical body continued in the world, will survive until the eschaton, we should cheerfully and respectfully correct the Pope when he deviates from the Faith and pray fervently and hopefully for his greater fidelity.        

Reflections from the City of God: On Admonishing the Wicked, Just Punishment, and Fear of Loss

My selection this week from The City of God comes from Book I, Chapter 9, just after Augustine has been Heavenly City discussing the objection from his pagan adversaries that it does not seem right that Christian divine compassion is extended both to the wicked and the good; likewise, why should the wicked and the good suffer the same evils in the earthly city? What kind of God would inflict the same hurts on the good and the wicked alike?

Augustine first says that what matters is not the event of suffering itself, but the person undergoing the suffering: "though good and bad men suffer alike, we must not suppose that there is no difference between the men themselves, because there is no difference in what they both suffer. For even in the likeness of the sufferings, there remains an unlikeness in the sufferers." I.8.

Fair enough, one might respond, but if the sufferers are not alike, why should they undergo similar pain? This seems unjust. Augustine argues that it is right that God's "corrections" be administered in the earthly city to good and bad men alike because these corrections are reminders to good men that "although they be far from the excesses of wicked, immoral, and ungodly men, yet they do not judge themselves so clean removed from all faults as to be too good to suffer in these temporal ills." I.9.

What are the particular failings of good people that Augustine emphasizes in this chapter--those sins that warrant their suffering in this world, indeed, that warrant their suffering similar pain to the wicked? Here is Augustine's answer:

For often we wickedly blind ourselves to the occasions of teaching and admonishing them [the wicked], sometimes even of reprimanding and chiding them, either because we shrink from the labor or are afraid to offend them, or because we fear to lose good friendships, lest this should stand in the way of our advancement, or injure us in some worldly matter, which either our covetous disposition desires to obtain, or our weakness shrinks from losing. So that although the conduct of wicked men is distasteful to the good, and therefore they do not fall with them into that damnation which in the next life awaits such persons, yet, because they spare their damnable sins through fear, therefore, even though their own sins be slight and venial, they are justly scourged with the wicked in this world, though in eternity they quite escape punishment. Justly, when God afflicts them in common with the wicked, do they find this life bitter, through love of whose sweetness they declined to be bitter to these sinners.

If anyone forbears to reprove and find fault with those who are doing wrong, because he seeks a more seasonable opportunity, or because he fears they may be made worse by his rebuke, or that other weak persons may be disheartened from endeavoring to lead a good and pious life, and may be driven from the faith--this man's omission seems to be occasioned not by covetousness, but by a charitable consideration. But what is blameworthy is, that they who themselves revolt from the conduct of the wicked, and live in quite another fashion, yet spare those faults in other men which they ought to reprehend and wean them from; and spare them because they fear to give offense, lest they should injure their interests in those things which good men may innocently and legitimately use....They abstain from interference, because they fear that, if it fail of good effect, their own safety or reputation may be damaged or destroyed; not because they see that their preservation and good name are needful, that they may be able to influence those who need their instruction, but rather because they weakly relish the flattery and respect of men, and fear the judgments of the people, and the pain or death of the body; that is to say, their nonintervention is the result of selfishness, not love.

Accordingly, this seems to me to be one principal reason why the good are chastised along with the wicked, when God is pleased to visit with temporal punishments the profligate manners of a community. They are punished together, not because they have spent an equally corrupt life, but because the good as well as the wicked, though not equally with them, love this present life; while they ought to hold it cheap, that the wicked, being admonished and reformed by their example, might lay hold of life eternal. And if they will not be the companions of the good in seeking life everlasting, they should be loved as enemies, and dealt with patiently. For so long as they live, it remains uncertain whether they may not come to a better mind.

There are many interesting and difficult observations in this passage. First, the obligation of the good to admonish the wicked is laid out plainly. 'Follow your own star and the world will be a better place' is not the ethical, or, for that matter, the political, message here. Indeed, the failure to meet this obligation is one of the "principal" reasons that both good and wicked are afflicted with suffering in the earthly city.

Second, note the psychology of admonition and failure to admonish that Augustine proposes. One's motivations for failing to take a stand in opposition to wrongful conduct make a difference. The failure to rebuke is culpable when the motivation for that failure is self-interested. But failure to rebuke is not culpable if it is motivated by love of the object of the admonition. So that the failure to take a stand in response to wrongful conduct would not be culpable if it were motivated by non-egoistic prudential considerations--the efficaciousness of the rebuke, for example, or its tendency to dissuade others from leading a good life.

Third, one of these prudential considerations might be the preservation of one's own good name or reputation, provided that the motivation for such a preservation were to keep in play the possibility of altering wrongful conduct in the future. Such a preservation would not be included as a prudential consideration if the motivation for it were the weak desire for the "respect of men, and fear [of] the judgments of the people." Even the fear of "pain or death of the body" would not be an adequate reason to refrain from rebuke. This is demanding indeed. Professor Robert Dodaro, in his excellent volume, Christ and the Just Society in the Thought of Augustine, has this to say about the last point: "Because [Augustine] believes that happiness is predicated upon the knowledge and love of God as the supreme good, he concludes that fear of death epitomizes the fundamental threat to the formation of a just society. Justice is not found wherever fear of death impedes action aimed at the attainment of lasting happiness. Virtue is therefore necessary to overcome fear of death, all the more so because it leads human beings to choose permanent over temporal goods." Id. at 35-36.

Fourth, and finally, admonition--even when it is necessary--is always to be "gentle and patient." Presumably this is not only for reasons of prudence or efficacy, but also because one can never know--that is, "it remains uncertain" to the rebuker--what people's fate will be and what end they will come to. As R.A. Markus puts it: "[T]he Augustinian vision springs from a sense of conflicting purposes, of uncertainties of direction and of tensions unresolvable in society. In place of the Aristotelian confidence in the established order, the Augustinian tradition is inspired rather by a sense of its precariousness, and by an awareness of the perpetual proximity of disintegration." Saeculum: History and Society in the Theology of St. Augustine 177.

Wednesday, October 2, 2013

"Pragmatic Eudaimonism"

Recently -- both online at Public Discourse and in the pages of First Things -- there has been an interesting conversation about law, liberalism, happiness, culture, etc. among Robert Miller, Patrick Deneen, David Tubbs, and others.  Here is a link to Prof. Miller's latest intervention, "The Practical Eudaimonist."  Here is a bit from his opening paragraphs:

[My first point] was that, although the liberal political institutions of the United States can easily and naturally be justified on the basis of a liberal political philosophy, they can also be justified as pragmatic political compromises worked out by people who disagree sharply on moral issues and have divergent interests and life goals. I called the former kind of justification for liberal institutions philosophical liberalism and the latter pragmatic liberalism.

My second point was that a Roman Catholic like me, who understands morality to be eudaimonistic in the manner of the Aristotelian-Thomistic tradition, can and should be a pragmatic liberal, because, in the totality of current circumstances, liberal political institutions comprise the best available system of government in the sense that they afford the best chance of allowing people to lead good human lives, which is the central concern of eudaimonistic moral philosophy. . . .

I am sympathetic to Miller's claims (and think that his responses to his critics -- including my friend and neighbor Deneen -- are convincing).  Of course -- and I'm sure Miller would agree -- there are dangers posed by "liberal political institutions" like ours to human flourishing.  One of those dangers, in fact, is that these institutions will become less liberal and more (illiberally) statist and monistic, and this danger is a very live one, I think, today.  Still, I think that Miller (like John Courtney Murray) is right to think that America's "liberal political institutions" can be regarded, and defended, by Catholics as maintaining the space and order within which the work of moral formation and integral human development can be done by families, communities, the Church, and so on.

Leopardiana

John Gray has an incisive and learned comment on the occasion of the first English translation of Giacomo Leopardi Leopardi’s Zibaldone–partly a notebook and partly a diary from this brilliantly melancholy Romantic mind. Much of Gray’s commentary considers Leopardi’s relationship to Enlightenment rationalism, on the hand, and Christianity, on the other. For those with an interest in Leopardi’s political and moral thought, may I also recommend Joshua Foa Dienstag’s superb discussion of Leopardi in his Pessimism: Philosophy, Ethic, Spirit.

Probably Leopardi’s poetry (his “Canti” especially) is the best known of his corpus, but my favorite of his work has always been Le Operette Morali or “Little Moral Tales.” These have been translated into English before, and for some years, I have set myself the project of doing a new translation. Let’s just say it’s in progress.

Here is a translation (Iris Origo and John Heath-Stubbs) of the opening passages from the first of the Operette Morali, “The Story of the Human Race”:

The story is told that all the men who first peopled the earth were created everywhere at the same time, and all as infants, and were nourished by bees, goats, and doves, as the poets describe in their fable about the nurture of Jove. They say, too, that the earth was much smaller than it is now, and all the land was flat, that the sky was starless, that there was no sea, and that there was much less variety and magnificence in the world than we see there now. But men, nevertheless, delighted in the pleasure they took in regarding and considering the earth and sky with great wonder, thinking them most beautiful, and not only vast but infinite in size, majesty, and loveliness; and they also nourished very joyous hopes, deriving an incredible delight from all their awareness of this life, and became most contented, so that they almost believed in happiness.

Having thus passed their childhood and early youth most sweetly and having reached a riper age, a change came over them. For their hopes, which they had postponed from day to day until then, had not yet been realized, so that they lost faith in them. And they did not feel that they could still be content with what they were then enjoying, without some promise of an increase of happiness, particularly as the appearance of nature and of every part of their daily life–whether because they had become accustomed to them, or because their spirits were no longer so lively as they had once been–no longer seemed as delightful and pleasing to them as in the beginning. They wandered about the earth visiting very distant regions–for they could do so easily, since the land was flat and not divided by seas or any other impediments–and after many years most of them became aware that the earth, even though it was large, had definite boundaries, instead of ones so vast that one could not define them; and that, but for a few very slight differences, all the places in the earth and all its inhabitants were just alike. And their discontent increased so much on this account that, though their youth was scarcely at an end, they were all overcome by a conscious distaste for their own nature. And in their manhood, and still more as their years declined, their satiety was converted into hatred, so that some of them came to be so despairing that they were no longer able to bear the light and the life they had at first loved so much, and thus of their own accord–some in one way, some in another–they brought their life to an end.

It seemed terrible to the gods that living creatures should prefer death to life, and that–without the compulsion of necessity–they should become the instruments of their own destruction….Therefore, Jove, having decided–since it seemed to be necessary–to improve the human condition and to help it to further the pursuit of happiness, reached the conclusion that the chief human complaint was that things were not as beautiful, various, and perfect as they had believed at first, but instead were very restricted, imperfect, and monotonous….

For Jove’s strategy to cure this state of depression and “noia” (ultimately unsuccessful, I’m afraid), get yourself a copy of Le Operette Morali.