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.

Monday, June 10, 2013

The Morality of Human Rights

By Michael Perry

Some MOJ readers may be interested in a paper I just posted to SSRN (here):  "The Morality of Human Rights".  This is the abstract:

In the period since the end of the Second World War, there has emerged what never before existed: a truly global morality. That morality — which I call “the morality of human rights” — consists not only of various rights recognized by the great majority of the countries of the world as human rights, but also of a fundamental imperative that directs “all human beings” to “act towards one another in a spirit of brotherhood.” The imperative — articulated in the very first article of the foundational human rights document of our time, the Universal Declaration of Human Rights — is fundamental in the sense that it serves, in the morality of human rights, as the normative ground of human rights.

I begin, in the first section of this essay, by explaining what the term “human right” means in the context of the internationalization of human rights. I also explain both the sense in which some human rights are, in some legal systems, “legal” rights and the sense in which all human rights are “moral” rights.

Then, in the longer second section, I turn to the inquiry that is my principal concern in this essay: Why should one take seriously the imperative that serves, in the morality of human rights, as the normative ground of human rights? That is, what reason or reasons does one have, if any, to live one’s life in accord with the imperative to “act towards all human beings in a spirit of brotherhood”?

This essay, the final draft of which will be published in a symposium issue of the San Diego Law Review, was my contribution to the conference on “The Status of International Law and International Human Rights” that was held at the University of San Diego School of Law on May 3-4, 2013, under the auspices of the School’s Institute of Law and Philosophy. Some of the material in this essay is drawn from my new book, Human Rights in the Constitutional Law of the United States (2013). Most of the material here that is not drawn from my book was first presented in a lecture I was honored to deliver at Santa Clara University in March 2013, under the auspices of the Bannon Institute of the Ignatian Center for Jesuit Education.

Saturday, June 8, 2013

Camus to the Dominicans

By Michael Perry

“When I think about the Church’s social teaching,  I love to recall some words that Albert Camus ... addressed to a group of Dominicans who invited him to come and speak to them at the end of the Second World War.  Camus said he would discuss the problem of evil in life, as he understood it as an agnostic.  He closed his talk, as I recall the story, with this thought:  ‘It may not be possible for us to create a world in which no innocent children suffer, but it is possible to create a world in which fewer innocent children suffer.  If we try to do that, if we look to the Christians and do not find help, where else will we go?’”  --Bryan Hehir, "Wanted:  A New Global Order," The Tablet, Dec. 1, 2001, at 1700, 1702.

Friday, June 7, 2013

Cooperation with evil and setting the terms of engagement

By Rick Garnett

In this post, NCR's Michael Sean Winters observes, in the course of discussing the HHS lawsuits and the activities of the USCCB in support of religious liberty, that "[the Amish] model is not our Catholic tradition. We do not shut out the world, we engage it."  This observation is connected to his concern that the bishops and other critics of the HHS mandate have over-emphasized the issue of culpable "cooperation with evil," and thereby lost sight of the fact that "[t]here is simply no way to engage a sinful world without somehow participating, even cooperating, in the evil in the world."  The very reason, he continues, the Church has carefully developed and deployed the notion of "remote material cooperation with evil" is "testimony to the Church’s tradition of going out into the world and not becoming an Amish-like sect."

I have described the nature of the burden that the HHS mandate imposes on Catholic institutions in terms of integrity, mission, witness, and character, and not in terms of "cooperation with evil," because I think it is important to remember that "religious freedom" involves more than a guarantee that the political authorities will not require us to sin.  The mandate burdens the religious freedom of, say, the University of Notre Dame, in a way that violates federal law, even if the University can and does end up complying with it.  (I think that Michael and I agree on this point.)

A point I would add to his post, though, is this:  It is true that the Church, and Christians, can and must be "engaged" in and with the world.  Some are called to the monastery and the cloister, but I take it that the Church's mission is to fulfill the Great Commission and to live out Matthew 25. That said, there is no reason for the bishops to accept or take as given the state's increasingly aggressive efforts to "set the terms" of that engagement in ways that require the Church's social-welfare activities to be secularized, or to mimic the activities of state agencies.  It is not "sectarian," or culture-warrior-ish, or narrow, or Puritan, or Amish for the bishops to say, "look, we are going to stay here, in public, and feed the poor and fight for justice.  And, we'll play by the rules as we do so.  But, those rules need not and should not require us to secularize and they should not proceed from the premise that religion belongs in private or that social-welfare work somehow belongs to the state."  Those who are insisting that the bishops should not allow a misguided and unrealistic desire for purity to cause them to shut down important social-welfare activities rather than submit to legal conditions have a point -- i.e., these activities are important and it would be a big deal to abandon them rather than comply with these conditions -- but they should not lose sight of the fact that these conditions are contigent, not given, and they should join the bishops in doing all they can to oppose conditions that needlessly burden the mission and character of religious institutions.

"Pacem in Terris at 50"

By Rick Garnett

Here's George Weigel, at First Things, writing about the anniversary of Pacem in Terris.  Among other things, he notes:

 The second enduring impact of Pacem in Terris was to have inserted the Catholic Church fully into the late-modern debate over human rights, aligning the Church with those human rights activists who played key roles in bringing down the Berlin Wall and ending communist tyranny in Europe—a historic transition that made “peace on earth” (including the disarmament called for by John XXIII) more of a reality. Like many United Nations documents, and like subsequent Church statements, Pacem in Terris engaged in “rights talk” rather loosely, with virtually every imaginable social good being described as a “human right.” That has led to some enduring issues, even problems, in the explication of Catholic social doctrine. But matters of conceptual precision notwithstanding, there should be no doubt that the Church’s deployment of the language of “human rights” has helped magnify its moral voice in world affairs.

I remember, in college, confidently asserting to my mentor and philosophy teacher, who was supervising my senior thesis, that "rights talk" was problematic, etc.  He said (and this was at Duke!), "you should read Pacem in Terris."  Good point.

US AID and State-Promoted Anti-Gay Violence

By Steve Shiffrin

Here is a news story that might shed some additional light on the matter about which Susan and Patrick have just posted.  It comes courtesy of a newspaper about which I am not particularly enthusiastic, but which at least exhibits the journalistic virtue of attempting to report events in neutral terms uncolored by the 'hermeneutic of suspicion.' 

Pax, B

Bob

Thursday, June 6, 2013

Depends on How it Changes the Game

By Susan Stabile

Patrick's post about the AID's involvement in a partnership to address LGBT issues around the world laments that  "U.S. taxpayers' dollars are being spent to advocate internationally for laws and policies that most Americans still oppose and that, what is more, violate the moral law."  

I think he overstates the objection tremendously.  The specific things listed as being of concern in the AID's announcement of the partnership are the fact that LGBT behavior is criminalized in 85 countries, seven of which impose a death penalty for same-sex sexual activity and that a large number of countries do not punish anti-gay discrimination.  I think one would be hard put to claim that most Americans think same-sex behavior should be criminatlized or subject to the death penality and I see no violation of moral law in fighting against such laws.  And (appreciating that people can have different views as to what constitutes discrimination, even the Catholic Church believes that people should not be discriminated against) because of their sexual orientation.

The United States is not representative of the rest ofthe world.  The big fight here is about gay marriage.  In other parts of the world homosexuals risk harm from third parties and their own governments because of their orientation.  

I'd like to know a little more about the specific plans of the partnership of which the AID is a part before coming to the conclusions Patrick does.

 

"a real game-changer"

By Patrick McKinley Brennan

"A real game-changer," that's how Claire Lucas, senior advisor to the U.S. Agency for International Development (USAID), described the Obama administration's new program to train activists on behalf of homosexual causes around the globe.  Here is the story . Trouble is, it's not a "game," and no one should be fooled into treating it as one.  U.S. taxpayers' dollars are being spent to advocate internationally for laws and policies that most Americans still oppose and that, what is more, violate the moral law.  

And speaking of law, consider the following conclusion of Ursula Cristina Bassett concerning what ensues, as a matter of historical fact, upon legal recognition of homosexual union:  “It quickly became clear that legalising same-sex marriage required a revolution to our internal law. It impacted laws regulating public order, identity, gender, rules of kinship, filiation, marriage, names, marital property arrangements, divorce, alimony, parental rights, succession, domestic violence, adoption, artificial reproductive techniques, surrogate motherhood, liberty of conscience, criminal law, tax law and employment law, among other topics. All of these subjects would need to be attuned to the gender-neutral paradigm ... same sex marriage law in Argentina has turned the law upside down—no stone has remained unturned”.  Basset's work was recently considered by the British Parliament (here at column 947) before it voted, in effect, to leave "no stone . . . unturned."

While many are busily "dialing it down," including a growing number of equivocating and misleading Catholic prelates (e.g., Belgium's Cardinal Danneels), the players of the "game" that is no game at all are positioning things to leave no stone unturned.  The purveyors of the Church of Nice are complicit, alas, in the creation of an unCatholic world order.           

AALS call for papers

By Rob Vischer

Section on Law and Religion Call for Papers for January 2014 AALS Annual Meeting Program:

“Cooperating With Evil, Complicity with Sin”

From Alan Brownstein and Joel Nichols, Program Chairs for AALS Section on Law and Religion:

The AALS Section on Law and Religion invites the submission of papers or abstracts (no more than 5 pages) for the purpose of selecting one or two speakers for a panel at the Section’s program at the January 2014 AALS annual meeting in New York. The program is scheduled for Saturday, Jan. 4, 2014, from 2:00-3:45. Other invited speakers will also be on the panel. The program description follows:

What does it mean for religious believers and groups to refrain from “cooperating with evil?" When does involvement with government action rise to condoning it? And who decides whether a religious objector is “participating” in and thereby "complicit" with religiously objectionable conduct? Such questions play a central role in the HHS contraceptive mandate debate but they arise in other controversies as well – ranging from religious objections to same-sex marriage to the conscience claims of pharmacists opposed to stocking or selling abortifacients.

Numerous doctrinal issues are relevant to a discussion of this problem. These include whether allegations of moral complicity satisfy the “substantial burden” requirement a RFRA or free exercise claimant must satisfy, and how courts should take attenuated causation questions into account if a substantial burden is found to exist. Other questions relate to the concern that an expansive conception of moral complicity may extend so broadly that general accommodation statutes (or constitutional interpretations) would become unacceptable in their scope and unmanageable in their operation.  This panel will explore these and other problems arising from the relationship between conceptions of moral complicity and the evaluation of religious liberty claims under constitutional or statutory law.

Submission Deadline and Procedures: Deadline is August 15, 2013. Abstracts should be submitted by email to Joel Nichols, Univ of St. Thomas (MN) School of Law, [email protected]

Proposal Requirements: An abstract of not more than five pages, or a completed paper.

Presentation and Publication: Any speaker chosen from this call will be expected to produce an original substantial paper, or to have already produced a substantial paper, a draft of which  will be available to be posted on the AALS web site prior to the annual meeting and that will be published in the University of St. Thomas Law Journal (MN) during the 2013-14 academic year.

Selection and Eligibility: Selection will be by blind review. Under AALS rules, only full-time faculty members of AALS member law schools are eligible. Faculty at fee-paid law schools; foreign, visiting, and adjunct faculty members; graduate students; fellows; and non-law-school faculty are not eligible. AALS rules require any speaker to pay the annual meeting registration fee and travel expenses.

Immovable ladders, the Church of the Holy Sepulchre, and property rights

By Rick Garnett

This piece, from Slate, by "Atlas Obscura," is wonderful.  Was "Andy" striking back at the heavy hand of status-quo bias, trespassing, stealing, occupying, or -- like that French archeologist in Raiders of the Lost Ark, messing with things best left alone?

The Boys of Pointe du Hoc

By Michael Scaperlanda

Ronald Reagan's speech at Pointe du Hoc on the 40th anniversary of D-Day.

 

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