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, August 14, 2013

On Elshtain: "Moral Anthropology, Social Ontology, and Authentic Human Freedom"

By Rick Garnett

More than three years ago, I gave a paper at a conference -- one of a series exploring and celebrating the work of Jean Bethke Elshtain -- called "Public and Private:  Feminism, Marriage, and Family in Political Thought and Contemporary Life."  The paper was called "Moral Anthropology, Social Ontology, and Authentic Human Freedom."  If you are interested, I've posted it here:  Download Elshtain paper  Here are a few paragraphs:

In a short, 1999 essay – one that influenced strongly my own thinking – called “How Should We Talk?”, she suggested that the ongoing debate about the role of religion and religious believers in democratic politics should not proceed without attention to “anthropological issues” and “presuppositions.”  Unfortunately, the anthropology that “underwrite[s] modern liberal contractarianism,” she noted,is one that “sees us as essentially free standing, self-possession, self-defining, and self-naming creatures.  We relate to others to the extent it seems expedient, prudential and part of self-interest, rightly understood.  Of course, there is love and family commitment, but the tendency is either to bracket these as the exception that proves the rule or to bring the family, too, under the wings of an anthropology that distorts it profoundly.”

She developed this point – and this concern – in a review, also published in 1999, of Michael Perry’s then-recent book, The Idea of Human Rights.  Claims of, and talk about, “human rights” are, she insisted, founded necessarily on “certain anthropological presuppositions.”  Some presuppositions are capable of sustaining the human-rights project but – she warned – some might not be.

“A view of a primordially ‘free’ self haunts the modern rights project,” she wrote, contrasting that view with the one proposed in Catholic social teaching.  The latter
view sees human persons as “intrinsically, not contingently, social.  We are born to communion, to relationality. .. .  Rights . . . are lodged in an ontology of human dignity[ and this] dignity of the self cannot be dehistoricized and disembodied as separate from the experiences of human beings as essentially, not contingently, related to others.”

If we hope to understand, protect, and nurture the role, calling, rights, and dignity of women – and the family, and the political community – we must try to understand the person, who is, in Tom Shaffer’s words, “the noblest work of God—infinitely valuable, relentlessly unique, endlessly interesting.”  Like Elshtain, though, I worry that much of our legal, political, and constitutional discourse rests on a superficially appealing but incomplete and ultimately unworthy account of what it means to be human.  . . .

Today, most constitutions aim to protect authentic human freedom by “entrenching” human rights, and putting them beyond the reach of ordinary politics.  This is a good idea and a sound practice.  But it is not enough.  Human rights and human flourishing depend not only on enforceable constraints on government but also on the pluralistic structure of the social order, a structure in which, Elshtain has taught us, the family – neither entirely public nor entirely private – is both protector
and protected.

And so, it all comes together:  Law is “of, by, and for” the people – for real human persons.  The project of promoting persons’ flourishing – their real goods – will, necessarily, proceed on the basis of some assumptions – “anthropological” assumptions – about “what it means to be human”, about who and what people are and what they are made for.  The project’s chances of success are improved – this side of heaven, it can only have chances – if these assumptions are true.

One assumption that is true, and that constitution-makers (and all of us) ignore at their peril, is that persons are social and situated.  They live, thrive, and are
formed in families.  The law will, accordingly, do what it can to attend to the health of families.  In so doing, though, the law – the state –must stay its hand, and have its hand stayed.  And families (like some other forms of human association)  have a role to play – a constitutional role – and a job to do in staying, even as we should hope they might benefit from, the state’s hand.

Elshtain's "Augustine and the Limits of Politics"

By Rick Garnett

Michael Sean Winters has a nice post up about Jean Bethke Elshtain's Augustine and the Limits of Politics (link), a book that I've read about often, but (mea culpa!) never read, and am now resolved to read.  Winters provides, and I'm ripping off here, some powerful quotes:

False pride, pride that turns on the presumption that we are the sole and only ground of our own being; denying our birth from the body of a woman; denying our utter dependence on her and others to nurture and tend to us; denying our continuing dependence on friends and family to sustain us; denying our dependence on our Maker to guide and to shape our destinies, here and in that life in the City of God for which Augustine so ardently yearned, is, then, the name Augustine gives to a particular form of corruption and human deformation. Pridefulness denies our multiple and manifold dependencies and would have us believe that human beings can be masters of their fates, or Masters of the Universe as currently popular super-heroes are named….Every ‘proud man heeds himself, and he who pleases himself seems great to himself. But he who pleases himself pleases a fool, for he himself is a fool when he is pleasing to himself,’ Augustine writes. . . .   

. . . We moderns tend to presuppose a free-standing individual and then to posit a state that we call sovereign. What connects the individual to the state is a series of reciprocal rights and obligations. The state in the senior partner, of course, and can, if it desires, call most of the shots. The individual can proclaim rights but also has obligations. There isn’t very much in-between. We know, of course, that there is lots of other stuff, but it goes unmentioned, untheorized, if you will.

Moving through the City of God with this myth of the individual and the state in my mind, but lodged there quite insecurely because I never quite got it – this story of the self and the state, for the world was so much denser, thicker, richer, and more complex than social contract metaphors and tales of rights and obligations allowed – I took up the distinction between the household and the polis, or the private and the public, because Aristotle had put that on the agenda explicitly and because feminists were vigorously proclaiming that the ‘private was the public,’ tout court, and that didn’t seem quite right to me either.

Tuesday, August 13, 2013

Elshtain on Catholic Social Thought in America

By Michael Moreland

Among Jean Elshtain's many fine pieces engaging the Catholic social tradition (most written before she became a Catholic herself in 2011) was a reflection on subsidiarity and related themes in "Catholic Social Thought, the City, and Liberal America," in R. Bruce Douglass and David Hollenbach, eds., Catholicism and Liberalism: Contributions to American Public Philosophy (Cambridge UP, 1994), 151-71. A bit:

Perhaps, just perhaps, there is a distinction to be made between how we are compelled to talk, given the dominant rhetoric of individualism, and how, in fact, we act as members of families, communities, churches, neighborhoods. Perhaps. But surely it is the case that our social practices are under extraordinary pressure. What might be called the unbearable lightness of liberalism in fact disguises a heavy hand that swats back more robust notions of an explicitly social construction of the self. I have in mind here not an antinomy that poses individualism against a strong collective notion of the good, but a less stark, less dichotomous set of possibilities. Tocquevillians and Catholic social thinkers indebted to the principle of subsidiarity offer conceptual possibilities not locked into binary opposites. They allow us to pose such questions as: Is there any longer the possibility for the existence of multiple civitates not wholly dependent upon, or brought into being by, the state? What are the possibilities for reanimating these civic entities, including the city as a home for citizenship and solidarity, in order to stem the individualist-market tide? Is there available to us an understanding of rights tied to a social rather than atomistic theory of the self? Does this understanding really have any purchase on our current self-understandings and social practices?

....

Catholic social thought does not offer a “third way,” as if it were simply a matter of hacking off bits and pieces of the individualist-collectivist options and melding them into a palatable compromise. Rather, it begins from a fundamentally different ontology from that assumed and required by individualism, on the one hand, and statist collectivism, on the other. The assumptions of Catholic social thought provide for individuality and rights as the goods of persons in community, together with the claims of social obligation.

Arkes on "religious freedom in search of its argument"

By Rick Garnett

At The Catholic Thing, Prof. Hadley Arkes returns to a theme he's been developing in some recent columns and -- using Tom Farr's recent testimony before a House committee as an occasion -- notes what he calls "a critical need to recast our arguments over 'religious freedom' as they are offered not only in the courts but in the political arena."   Here's is what strikes me as the crucial section of his piece:

The God of the American Founders was the God of the Declaration of Independence – the Author of the Laws of Nature, including the moral laws. He was that Creator who endowed us with rights. And he was not a local god, of this tribe of Americans. He was the God of the logos, of reason, the Creator of that human person who was marked, in his highest nature, by that gift of reason.

As I’ve argued in these columns, our case for religious freedom should start there, not with the invocation merely of beliefs, but with the things that our religious tradition teaches us about the canons of reason as the ground of our judgments – and the grounds of the law.

And yet that touches the truth that seems reluctant to speak its name these days even among people who have devoted themselves to the defense of religious freedom: that we risk coherence when we treat, as equally plausible and legitimate, any group that flies under the title of “religion.”

If the people at the State Department seem at sea or wanting in conviction, we have to ask, “Have our own friends, working on religious freedom, helped make these distinctions clear and given guidance to them?”

With all due respect to Prof. Arkes -- and agreeing entirely with him that some claims invoking "religion" or "religious liberty" are less plausible than others, and that some claims invoking "religion" or "religious liberty" should lose while others should win, and that the reasons matter why religious freedom is our "first freedom" --  I am not sure I see a need, at this moment, in the courts or in the public square, to push our religious-liberty arguments back to foundations and first principles, especially if this involves debating the question whether the "God of the American Founders" is, in fact, the God of the "radical jihadists" or of other "groups that fill our landscape . . . and carry the banner of 'the religious.'" 

In one of his earlier columns, commenting on the Hobby Lobby case, Prof. Arkes said that "[o]ur friends litigating freedom feel pressed to argue within the grooves of 'sincere beliefs,' because they are the terms that the courts have confirmed and the judges recognize. The Greens are a generous, loving family, who deserve to prevail. But there needs to be another way of making the argument in the courts, and that is our task to come."  He is right, I'm sure, that religious faith and religious freedom are really about more than just "beliefs" and their "sincerity."  It seems to me, though, that the arguments to be made in courts and to judges are indeed the ones that -- for better or worse, and whatever their theoretical inadequacies or gaps -- "the courts have confirmed and the judges recognize."

Seven Shot Guns Shells, No Weapons, But 15 Years in Prison

By Greg Sisk

In Sunday’s New York Times, Nicholas Kristof tells a story that capsulizes the insanity of the ongoing and widespread scandal of prosecutorial overzealousness, crushing mandatory minimum sentences, excessive incarceration, and the general decline of true justice in our criminal justice system:  Edward Young, a husband and father of four, who had been convicted of non-violent property crimes in his youth, was convicted and sentenced to 15 years in prison for inadvertently taking possession of seven shotgun shells when assisting the next-door neighbor in inventorying her property after her husband died.

Here's an excerpt from Mr. Kristof’s column, the rest of which is available here:

[A] neighbor died, and his widow, Neva Mumpower, asked Young to help sell her husband’s belongings. He later found, mixed in among them, seven shotgun shells, and he put them aside so that his children wouldn’t find them. . . .

The United States attorney [for the Eastern District of Tennessee], William Killian, went after Young — even though none of Young’s past crimes involved a gun, even though Young had no shotgun or other weapon to go with the seven shells, and even though, by all accounts, he had no idea that he was violating the law when he helped Mrs. Mumpower sell her husband’s belongings.

In May, a federal judge, acknowledging that the case was Dickensian but saying that he had no leeway under the law, sentenced Young to serve a minimum of 15 years in federal prison. . . .

Young is particularly close to his children, ages 6 to 16. After back problems and rheumatoid arthritis left him disabled, he was a stay-at-home dad while his wife worked in a doctor’s office. When the judge announced the sentence, the children all burst into tears.

One more interrupted life and one more dismantled family, for no rational purpose or reason other than because a prosecutor can get a conviction and a long sentence.  The result of these practices is hundreds of thousands of damaged or destroyed lives in this country, both the lives of the men (mostly) and women convicted of non-violent crimes who languish in prison for lengthy terms and the lives of their spouses and children who suffer the trauma of seeing loved ones stolen away for years and lose the support, emotional and financial, of that person.  Talk about a policy that offends "family values"!

For those like me who are on the conservative end of the political spectrum, we should be ashamed of the way in which the politicians that we support have avoided serious engagement with the problem of crime and building a healthy society by advocating and implementing a criminal justice system that constantly ratchets up prison sentences.  Yes, we should be tough on crime, especially violent crime, but justice must be tempered with mercy or at least common-sense appreciation of the greater harm to young men and women who grow up without parents because they have been shipped off to remote prisons for petty and non-violent offenses.

And those on the political left are not off the hook.  While the scourge of mandatory minimum sentences and no-tolerance prosecute-to-the-limit policies may have originated primarily with conservatives, liberals have been oh so quick to demonstrate their tough-on-crime bona-fides by voting for and implementing the same policies.  Notably, the prosecution of Edward Young for innocent possession of seven shot gun shells and subjecting him to a 15-year prison sentence was the work of United States Attorney William Killian, a long-time Democrat who was appointed by President Obama.  Attorney General Holder may have announced a new policy for federal prosecutors to sidestep mandatory minimums for some crimes, but apparently the memo came too late for Mr. Young.

In sum, we are all complicit in this prosecute-the-highest-charge and imprison-to-the-max ethos that is undermining social justice and dragging down a generation of Americans.

When election season comes upon us again in just a few more months, be sure to ask the candidates what they think about the United States having the distinction of having the highest proportion of prisoners in the entire world (here).  And ask what they intend to do about it.

Whether this is framed as a moral question, which we as Catholics in the legal system must confront, or an economic question, given the huge financial costs of building prisons and housing prisoner, we should not accept the same pablum and unthinking tough on crime rhetoric from those who are entrusted with setting criminal justice policy in this country.

Elshtain on "Sovereignty: God, State, and Self"

By Rick Garnett

As has been noted, political theorist Jean Bethke Elshtain -- a "political scientist unafraid to talk God," in The Atlantic's words -- died the other day.  (Here is another notice, from Commonweal and here is yet another, from the University of Chicago.)

Elshtain wrote a lot, to put it mildly, and I know that many of us here at MOJ have been formed in various ways by engaging with her work.  To mention just one project of hers:  I think her Gifford Lectures, "Sovereignty:  God, State, and Self", were wide-ranging, provocative, and important.  (Here's one review, from First Things in 2009.)  (And, while I'm at it, one might review, at the same time, some of the work by our Patrick Brennan, who is critical of the notion of "sovereignty" as it is used in American constitutional law.)

Jean Bethke Elshtain and "Legal Moralism"

By Marc DeGirolami

Below Rick notes the passing of Professor Jean Bethke Elshtain, an important and distinctive voice in political and moral theory. My Catholic Social Thought students will remember her essay on human dignity, “The Dignity of the Human Person and the Idea of Human Rights: Four Inquiries,” which begins as an exploration of Professor Michael Perry’s work and then branches off into its own territory.

One of my favorite Elshtain essays is “The Perils of Legal Moralism,” published in the Journal of Law and Politics in 2004 and delivered as the Meador Lecture at the University of Virginia–a lecture on religion and law. I am on record as expressing skepticism about the epithet “legal moralism,” which is often said to mean implausible things that no serious person could possibly believe (e.g., the view that morality and legality should actually be co-terminous, or that all “sins” should be criminalized) and then promptly hurled at those whose moral views differ from those of the author.

But Professor Elshtain’s essay takes a subtle approach to the question of legal moralism, describing it more as a tendency or a cast of mind than as a fully worked out theoretical position. Legal moralism in her essay is the tendency to believe that the only way to have a moral life is through law: “Responsible citizenship means that moral adults can realize a life of freedom understood as ordered liberty–of both self and society. But, as a society, we seem to think people are stuck rather permanently in a stage of moral infancy or, at best, adolescence, as we rush to “make a law” to cover every contingency, thereby blanketing all of life with a moralistic mandate.” Here is a useful example of the legal moralist cast of mind and the way in which it stunts and deforms a society’s moral life:

Another AP story, this time out of South Dakota. A “teen-ager who flipped up his middle finger and mouthed the f-word several times at a school official was properly convicted of disorderly conduct, the state Supreme Court majority ruled.” The story makes it clear that the boy and his brother dogged the principal and his family as they were leaving a grocery store. In a pick-up truck, the boys followed the van driven by the principal for about a mile before veering off. What is fascinating about this case is that, rather than focusing on the potential dangers of following another vehicle through traffic–although in South Dakota there isn’t very much of that–or the danger of cutting off the car driven by the principal in the grocery store parking lot, it was the rude gesture that incurred censure. I am not a free speech absolutist, but it seems strange to charge the teenager for a gesture and for mouthing an admittedly rude word and equally strange for his defense to call the word and gesture a form of “free speech”–legal moralisms from both sides, in other words, as the ante is upped. In the process, speech is trivialized and rude teen behavior is treated as an actionable offense in the legal sense rather than as the occasion for some serious intervention by responsible adults: a legal occasion rather than a teaching occasion, let’s say.

Viewed as an orientation or a cast of mind, legal moralism’s greatest flaw is its tendency toward mapping out the moral life by codifying it. A society in which the legal moralist cast of mind is ascendant has great difficulty understanding and processing true goodness and true evil:

We are all wary of those who go outside the code or go too far, even in an undeniably “good” direction. Who among us could really live the life of Blessed Mother Theresa of Calcutta, going into the filthy, urine and fecal saturated gutters of New Delhi to pluck dying untouchables from what bade to be their deathbeds in order to care lovingly for them in their last days on earth? We admire–but from a safe distance. Something in us tells us that this is going too far; our codes don’t require this sort of thing. So we invent categories like “supererogation” for those who go beyond what the code requires.

At the other end of the scale of possibility, we have great difficulty dealing with evil when it walks among us or stalks us from afar. What Taylor calls ‘Providential Deism,’ a one-sided “definition of Christianity” took over in the West–a kind of “liberal, sanitized Christianity” which knows not how to deal with suffering or sin or evil.

Quoting Charles Taylor, Elshtain writes that “‘modern nomolatry’–the idolatry of the law–'dumbs us down, morally and spiritually.'”

I cannot do justice to the entire essay in this post. It contains other insights about codified ethical systems, the role of religion, and many other matters. Here's the conclusion:

Alexis de Tocqueville, in his masterwork, Democracy in America, sees the law, as well as religion, as essential to democracy’s decent functioning. Lawyers have a concern with proper order and formalities as one way to achieve a certain distance from the tumult and from ill-considered passions. Years of study, Tocqueville opines optimistically, breed in lawyers an intimate feel for a complex form of knowledge. Lawyers, in other words, form an epistemic community of sorts. A problem emerges if a comprehensive ideology or code is thrown over the law, occluding or short-circuiting its unique function and practices.

Law concerns people in their concreteness. It speaks to this moment, that event, that body, that person holding a gun. It speaks to our highest aspirations for human decency and rights and these, too, involve, not abstract, but flesh and blood human beings with whom we share a community, a nation, a fragile globe. Human rights are about blood and bones and rotting corpses and speaks directly to such realities. The law must make thick and thin distinctions of the sort comprehensive moralisms disdain. Interestingly enough, this understanding of the concrete role of the law meshes with the emphasis in Christian theology on the concreteness of being a member of a community of the faithful. [Dietrich] Bonhoeffer, again, is instructive. What Christians profess, he insisted, is not some metaphysical abstraction but a concrete belief in a God-man who died a very human death. If we fly to the heavens or to the metaphysical ether too quickly, we lose the moralities and ethics that are the very heart of the matter, for citizens and for religious believers alike.

Rest in peace.

"Religious Liberty and the Culture Wars"

By Michael Perry

That's the title of a new piece by Doug Laycock, forthcoming in the University of Illinois Law Review, downloadable here.  The abstract:

Religious liberty has become much more controversial in recent years.  A principal reason is deep disagreements over sexual morality.  On abortion, gay rights, same-sex marriage, and contraception, conservative religious leaders condemn as grave evils what other Americans view as fundamental human rights.  Somewhat hidden in the battles over permitting abortion or same-sex marriage lie religious liberty issues about exempting conscientious objectors from facilitating abortions or same-sex marriages.  Banning contraception is no longer a live issue; there, religious liberty is the primary issue.  These culture-war issues are turning many Americans towards a very narrow understanding of religious liberty, and generating arguments that threaten religious liberty more broadly.

I argue that we can and should protect the liberty of both sides in the culture wars, and that conservative churches would be well advised to concede the liberty of the other side, including on same-sex marriage, and concentrate on defending their own liberty as conscientious objectors.

I offer a detailed analysis of the recently published Final Rules seeking to insulate objecting religious institutions from having to “contract, arrange, pay, or refer for” contraception.  These Rules offer very substantial protection to religious institutions, and they are likely to satisfy most judges. Religious institutions should claim victory or perhaps seek to negotiate minor adjustments.  The cases of for-profit employers remain to be litigated.  Those cases are more difficult, but it is at least clear that Congress understood the Religious Freedom Restoration Act to apply to for-profit employers.

Monday, August 12, 2013

Several Natural Lawyers Critique the New Natural Law Theory

By Michael Perry

News of interest to some MOJ bloggers and readers:

The most recent issue (Spring 2013) of the National Catholic Bioethics Quarterly contains several articles critiquing, from the perspective of Thomistic Natural Law, the New Natural Law Theory of Germain Grisez and John Finnis.  The issue is not yet available online, but the table of contents and the informative abstracts of the several articles are available here.

(Just noticed that Richard M. posted on this earlier this month.) 

Rienzi on religious freedom and business corporations

By Rick Garnett

Mark Rienzi has a good column in USA Today regarding the business-corporations-and-religious-freedom issue.  As I wrote a few days ago (here):

[I]t does not seem to me that the question presented in a case like Hobby Lobby (or like Notre Dame's own case) is not "does a corporation have free-exercise rights?"  The better way to think about it, I think, is to look at the relevant state action, and to ask, "is the government acting in a way that burdens religious exercise or violates the no-establishment norm."  The First Amendment, after all, is not (only) a collection of claims or entitlements that individuals and entities have (or don't have).  It's a command to the government:  Don't violate "the freedom of speech"; don't burden the "exercise of religion."

It is obvious that some regulations of corporations violate "the freedom of speech."  And, we can evaluate (and invalidate) such regulations without asking whether corporations have souls, or consciences, or beliefs, or selves-in-need-of-actualization.  It seems equally obvious that some regulations of corporations -- including for-profit corproations -- can burden religious exercise (e.g., "no business corporation may sell Kosher meat") and so can (but might not) violate RFRA or the First Amendment. . . .

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