I spent this past Friday and Saturday with an exceptionally congenial group of scholars, at a symposium the Murphy Institute co-sponsored with the Center for Thomas More Studies at the University of Dallas. Under the extremely able guidance of the Center's Director, Dr. Gerard Wegemer, and two of its Fellows, David Oakley and Louis Karlin, we read and discussed portions of More's Utopia, Richard III, Tyrannicide, documents about his trial, and various letters, including the Dialogue on Conscience. Participants included a number of fellow MOJ-ers (Marc DeGirolami, the Michaels Moreland & Scaperlanda, Tom Berg, and Susan Stabile), as well as other legal scholars from here and abroad.
I had always admired More for the courage of his witness, but never read his work. Reading such a wide swath of his work under such informed guidance was a revelation. We were challenged to think about More's actions and his writings as lawyers, not just scholars -- a rich exercise for bringing to life both the stakes and the contemporary relevance of his actions and his words (and his silences). Wegemer, Oakley, and Karlin are all contributors to a valuable new resource for anyone who might want to use More as the subject of any law school class: Thomas More's Trial by Jury: A Procedural and Legal Review with a Collection of Documents. (The volume also includes contributions from two of the other participants in our symposium, Sir Michael Tugendhut, Justice of the Queen's Bench, and Richard Helmholtz.)
But the symposium certainly helped me appreciate that More's writings deserve attention for more than just the lessons of conscience and principle on display in his trial. Some of our criminal law professors at the symposium were struck by how effective Raphael Hytholoday's account of his conversation with Cardinal Morton on how to properly punish thieves (in Book I of Utopia) might be in teaching theories of punishment in a criminal law class.
One of the pieces I personally found most intriguing is from the Dialogue of Comfort Against Tribulation, an essay entitled On Private Property, Riches, and Poverty, in which More attempts to sort through some of Jesus' most challenging charges: "If anyone comes to me and does not hate his own father and mother and wife and children and brothers and sisters, yes, and even his own life, he cannot be my disciple" (Lk 14:26) and: "whoever of you does not renounce all that he has cannot be my disciple" (Lk 14:33). In the essay More (as is typical for him) teases out the many complex layers of the practical implications of what those charges might mean for us. In our symposium, Steve Smith made the point that More's analysis might be a helpful contribution in many of our contemporary political debates, such as immigration. I agree. It seems to me that More's work might be a helpful supplement to some arguments typically made in terms of subsidiarity, the preferential option for the poor, or Aquinas' 'order of charity'.
More writes, for example: ". . . though I am obliged to meet in some way the needs of every kind of person, whether friend or foe, Christian or heathen, my obligation is not the same toward every person, nor toward any one person in every situation. A difference in circumstances greatly affects the matter. . . . Those are ours who belong to our charge either by nature, by law, or by some commandment of God. . . . Once God has by such chance sent [some stranger in need] to me, and has matched me with him, I consider myself definitely responsible for him until I can be rightly and decently, without any risk to his life, discharged of that responsibility. . . . [On the other hand] as much as God and nature both bind me to the sustenance of my own father, his need may be so little (though it is something), and a stranger's need so great, their needs may be so unequal, that both nature and God would have me releive that urgent necessity of a stanger -- even if it's an enemy of mine and God's too . . . -- before releiving a little need that is unlikely to do great harm to my father and my mother too."
I highly recommend the resources of the Center for Thomas More Studies -- both on their website and in on their staff -- for anyone interested in studying this great saint.
Over at the dotCommonweal blog, political theorist Robert Geroux has a series of posts (go here and here to start reading) (a) arguing against the views of and some recent writings by Fr. Robert Sirico and (b) exploring and criticizing what he calls the "dreamworld of libertarianism." The posts are worth reading, but they also invite, in my view -- as Catholic critiques of "libertarianism" (at least, the Catholic critiques that are directed against the economic libertarianism of some "conservatives") generally do -- a cautionary, but genuinely-intended--as-friendly amendment, namely: While it is true that the Catholic account of the person, society, community, authority, flourishing, and politics is more rich than, and in many important respects incompatible with the premises of some forms of "libertarianism", it is not the case either that all (or even most) policies espoused by or associated with "libertarianism" are inconsistent with the Catholic account or are otherwise objectionable.
Too often (though not, I think, in Geroux's posts), it is thought to be a sufficient "Catholic" response to a "libertarian" or "neo-liberal" or "conservative" policy proposal having to do with economic or social-welfare matters to attach to that proposal a word like "Randian" or "libertarian" or "individualistic", as if the attaching settled the matter. If Catholic thinkers are really going to -- as MOJ readers and others should want them to -- provide genuinely Catholic alternatives to the "libertarianism" of the left and right, or to versions of statism and collectivism that are also inconsistent with the Church's account of the person, etc., then they (all of them, of whatever stripe) need to acknowledge that some claims and arguments sometimes associated with "libertarianism" are sound and important. For example, the "moral hazard problem" is real and persons do respond to incentives. (Authentic) human freedom is a good thing, and constraints by government on that freedom need to be justified. (They often are justified, but they need to be justified.) "Society" and "the state" are different. The rule of law, constitutional limits on public authority, and (reasonable) property rights are good -- they make communities better, and make it more likely that persons will flourish. We are not merely lone, self-sufficient, solitary, unsituated, non-dependent rights bearers, but we're also not just bricks in the wall, cogs in the machine, etc.
Geroux writes:
[T]here’s nothing new or challenging about the awareness of the claims others make upon us, in the name of individual rights. As Simone Weil pointed out, every articulation of right that comes from another person impinges upon me. As adults, however, we acknowledge these sometimes burdensome obligations as bonds that tie us together and which constitute us collectively. We may differ on the particulars of family, church, and community, but we comprehend these things as part of what make us fully human.
Libertarianism represents a rejection of those bonds; it fetishizes my actions and accomplishments and imagines a world without mutual obligation. Its logic is reminiscent of the dreamworld of a child, or at the very best an adolescent; its narrative order sometimes reads like the script of an action film in which all conflicts are fantastically resolved by hypertrophically masculine heroes. Such stories are fine in their context, but as Freud suggested, the dreams of adults are different. They take place in strange places, reflect complicated nuances of meaning, and are peopled by characters in unpredictable situations. They are full of subtlety and sometimes tragic difficulty. They cannot be easily resolved. They resist facile analysis.
A "libertarianism" that is as Geroux describes is, certainly, to be rejected. We are situated and embedded in webs of obligation, duty, and oughts that are not (only) the result of our choice that do not depend on our approval or consent. But . . . there's a childishness (perhaps of a different sort) in the accounts that many of libertarianism's critics would offer (consider the lyrics of John Lennon's "Imagine"), and so maybe a task of Catholic thinkers is to challenge us to leave "dreamworlds" behind and to confront a complicated, fallen world with a combination of appropriate humility and confidence.
An intriguing -- and, perhaps, unsettling -- story from Australia:
An Australian judge rejected a ruling by a Jewish religious court ordering an Australian man to pay an Israeli businessman for the apparent sale of shares in a company. . . In 2010, a panel of three rabbinical judges ordered Amzalak to pay more than $300,000 for the sale of shares to Shlomo Thaler, an Israeli. Amzalak, however, did not make the payments, and the Jewish court issued a siruv that effectively excommunicated him from the community. . . .
Amzalak complained that the Jewish judges were biased. [The court] agreed, concluding that the “arbitration was not conducted impartially."
Here is an interview with Peter Kirsanow, a member of the U.S. Commission on Civil Rights, on the importance of religious freedom and its centrality as a civil-rights issue.
The Chicago Sun-Times reports that Fr. Andrew Greeley, "Chicago priest, best-selling author, noted sociologist and long-time Sun-Times columnist . . . died on early Thursday morning. He was 85." He wrote, among other things, some very important studies about Catholic schools, their successes, and their challenges. R.I.P.
Over at the Catholic Moral Theology blog (which is excellent), Fordham theologian Charlie Camosy has a post up called "Is Disagreement Between Peter Singer and Catholic Teaching on Abortion 'Narrow'? -- a Response to Critics." The post is a response to concerns expressed by a number of reviewers of his recent book, Peter Singer and Christian Ethics: Beyond Polarization. We've talked about Charlie's thesis -- i.e., that there are some important similarities between Singer's ethical commitments and Christian teachings (for example, that we are obligated to take seriously and to try to reduce others' suffering) -- here at MOJ often. Here's a bit from the post:
While I admit that I could have been more clear about what I meant by “narrow”, it could hardly be said that I meant the difference between the two was “unimportant” or “insignificant.” I clearly explain how the narrow disagreement, when run through to its logical conclusion, leads to a serious disagreement in terms of practical conclusions about abortion and infanticide. Furthermore, I spend many, many pages trying to make the complex case that Singer is wrong on the narrow point of the disagreement. Further evidence that I consider it to be serious and important.
By calling the disagreement “narrow”, I’m saying that the disagreement is not “wide.” One might think that two points of view, one which argues for infanticide and the other which wants to protect even the early fetus, must have wide-ranging disagreement in the abortion debate. But this is not the case between Peter Singer and Catholic teaching. The disagreement is deep, but it is deep on only one narrow point–especially relative to all the possible issues about which Singer and the Church could disagree.
I've posted an article with that title on SSRN, here (subtitled "Reflections on thr HHS Mandate"). As some of you know, I think that one of the most severe threats to religious freedom today--especially the freedom of religious organizations--is the prospect of it becoming a value of which political progressives are skeptical in principle, and which is associated only with conservatives. I therefore think it's vital at this juncture to make arguments for religious freedom that aim to reach people in the center and center-left. This piece, written for an excellent roundtable on "Freedom of the Church" sponsored by the University of San Diego Law School, is a first journal-article effort at doing so. I don't underestimate the depth of tension between a wide scope of freedom for religious organizations and certain features of political progressivism, but I also think it's crucial to appeal to as many common grounds as possible--and I believe there are important ones--as part of the overall case for religious freedom. (The project also has a personal element for me, as some will know, since I have a fundamental commitment to religious freedom and also myself in the center-left on a lot of issues and principles.) Abstract:
The Health and Human Services (HHS) mandate to cover contraception is the latest in a series of disputes that have made conflicts between politically progressive laws and traditionalist religious beliefs a pervasive feature of the American religious-freedom landscape. This article examines the foundations of the conflict and argues that progressives should support significant protections for faith-based service organizations such as social services and schools. There are sharp ironies when progressives exclude faith-based service organizations from religious-freedom protection, as the HHS mandate originally did. Service to others lies at the core of religious exercise; progressives more than anyone should affirm this; and accommodating such organizations meaningfully both preserves civil liberty and recognizes the overall contributions they make to progressive social goals, such as assisting the needy, even if they conflict with progressive positions on some deeply-felt issues. On the other side, traditionalists have sometimes failed to respect others' liberties, and that has hampered their ability to claim protection from government imposition as a matter of reciprocity, which would otherwise be a strong argument.
105 years ago, Edith Wharton travelled France by car. In her "Motor Flight Through France," she reflects on the Amiens Cathedral and the other great Gothic cathedrals of France:
[S]o strongly does the contemplation of the great cathedrals fortify the conviction that their chief value, to this later age, is not so much aesthetic as moral. ... Yes, reverance is the most precious emotion that such a building inspires: reverance for the accumulated experiences of the past, readiness to puzzle out their meaning, unwillingless to disturb rashly results so powerfully willed, so laboriously arrived at - the desire, in short, to keep intact as many links as possible between yesterday and to-morrow, to lose, in the ardour of the new experiment, the least that may be of the long rich heritage of human existence. This, at any rate, might seem to be the cathedral's word to the traveller from a land which has which has undertaken to get on without the past, or to regard it only as a "feature" of aeshetic interest, a sight to which one travels rather than a light by which one lives.
The other day, the New York Times, ran this guest op-ed by Ma Jian, called "China's Brutal One-Child Policy." It's difficult, but important reading (as is this year-old Economist piece.) It is important that respected and respectable voices (I'm looking at you, Melinda Gates and Thomas Friedman) not shy away from speaking up and speaking the truth about this policy, and not rationalize, euphemize, or look the other way.
Micah Schwartzman (UVA) recently published an article in the University of Chicago Law Review entitled "What If Religion Is Not Special?" I have a fairly good-sized response out in the Law Review's online Dialogue feature. Two key claims of Micah's article were that (1) you can't support distinctive accommodations for religious freedom unless you also support meaningful distinctive limits on religion serving as the rationale/purpose for laws and (2) ultimately there is no good reason for treating religion differently from deeply held, comprehensive nonreligious moral beliefs. My response, "Secular Purpose, Accommodations, and Why Religion is Special Enough," makes a broad criticism of claim #1 and a narrower criticism of claim #2. Abstract:
This article is a response to Micah Schwartzman's What If Religion Is Not Special? (U. Chi. L. Rev. (2012)). Schwartzman argues that existing approaches to the First Amendment's Religion Clauses are either (1) internally inconsistent because they because they treat religion as special for some purposes but not others or (2) unfair to both religion and nonreligion because they wrongly treat religion as different from deep or comprehensive nonreligious moral theories. He ultimately concludes that no existing theory is satisfactory and suggests expanding the clauses' reach to encompass comprehensive nonreligious moral views as well--which means that such views, like religious views, should be exempted from burdensome laws and should also be restricted in serving as the basis for legislation. Schwartzman argues that we are driven inexorably to this sort of general Rawlsian limitation on comprehensive theories as grounds for laws.
I argue that despite the virtues of his analysis, Schwartzman overstates two of his main conclusions. First, contrary to his charges of inconsistency, a theory may coherently treat religion as special for some purposes and not others. In particular, it is perfectly consistent to support religious accommodations while concluding that any constitutional restrictions on religion as a grounding for secular laws should be minimal, perhaps nonexistent. Second, the charge that it is unfairn to treat religion and nonreligion differently is also overstated. Religion has distinguishing features that justify treating it distinctively. We can extend such treatment to systems that share the same features but have not traditionally been called religious, but the extension should be limited—more limited than Professor Schwartzman proposes.
These online commentary features at major law reviews are a good way to allow academic commentary that is longer and more detailed than a blog post but still reasonably current.
