A longtime MOJ reader wrote, regarding my recent post which took note of David Hart's critique of the "new" natural law, to recommend Leszek Kolakowski's 2001 essay "On Natural Law" (included in the recently released collection of essays entitled Is God Happy?), which the reader said "provides a more realistic and useful understanding of natural law." And, he passed along this excerpt:
"…Moral intuition is also a kind of experience, different from sense perception – and neither of them infallible.
Our belief in natural law is not impaired by the fact that the results of this intuition are not necessarily identical in everyone’s mind, always and everywhere, nor by the fact that centuries were needed before people recognized the good and evil of their various actions and institutions – before they admitted, for example, that torture is evil and equality before the law good. This has also been the case with many discoveries in empirical science: it took centuries before people realized that their ordinary intuitions were wrong: that the sun does not revolve around the earth, or that a force is not necessary to cause movement, or that events are never absolutely simultaneous. All these erroneous beliefs were natural and understandable. So why should we not accept that the principles and norms of natural law reveal themselves to us gradually: that we must go through a process of growth before we understand certain moral truths and laws and recognize them as such? (Although it should be said that since antiquity there have been people who preached those principles and norms with full conviction – without, however, gaining universal approval.)
There is no reason to accept the nihilistic doctrine that because various contradictory norms have been accepted and applied at various times and in various places, they are all, in terms of Reason, equally justified, which is to say equally groundless. While belief in natural law does not – I repeat – require belief in the existence of God as a necessary premise, it does require the belief in something that one might call the moral (in addition to the physical) constitution of Being – a constitution that converges with the rule of Reason in the universe. All the evils of the human world, its endless stupidity and suffering, cannot impair our belief in natural law in this sense. Two other realms of intuition – perception and mathematics – also require suppositions that cannot be proved but are indispensable for the knowledge we acquire by these intuitions. Our life as rational creatures occurs in a realm that is constructed with the aid of various non-empirical but fundamental courts of appeal, among them truth and goodness. Nor need our belief in natural law be impaired by the fact that it is not universally observed. This fact was well known to Seneca and Cicero, to Gratian and Suarez, to Grotius and Kant, but it did not weaken their conviction that the rules of natural law are valid, no matter how often they are violated.
Natural law does not, of course, allow us to infer from it the details of any constitution or civil or penal code. It does not allow us to infer, for instance, whether or not capital punishment or voluntary euthanasia is permissible, whether proportional or a majority voting system is better, whether or not monarchy can be a good thing, whether property rights should have priority over other rights in case of conflict, whether censorship can be recommended on moral grounds, and so on. Nevertheless, natural law erects barriers that limit positive legislation and do not allow it to legalize attempts to infringe the indestructible dignity that is proper to every human being. Natural law is built around human dignity. Thus it invalidates legislation that, for instance, admits slavery, torture, political censorship, inequality before the law, compulsory religious worship or the prohibition of worship, or the duty to inform the authorities about the non-conformity of people’s political views. Within these limits various constitutions and various codes are possible; natural law does not dictate their details.
The barriers mentioned above are usually accepted today in the legislation of civilized countries, but we must keep in mind that they are relatively recent; that they are not recognized everywhere; and that in many places where they are present in constitutions they remain mere words on paper. Natural law should be like an uncompromising demon breathing down the neck of all the legislators in the world."
From Paul Kahn's "Putting Liberalism in Its Place" (link):
The Western state actually exists under the very real threat of Christian martyrdom: a threat to expose the state and its claim to power as nothing at all. In the end, sacrifice is always stronger than murder. The martyr wields a power to defeat his murderer, which cannot be answered on the field of battle.
Over at Concurring Opinions, there is a very interesting "symposium" going on about Linda McClain and Jim Fleming's important new book, Ordered Liberty. My own first contribution, called "Mutual Adjustment as Merely Congruence Delayed" is here. Among other things, I wrote:
At the end of the day, and at the end of the book, I suppose there’s no avoiding the fact that I continue to have doubts about “constitutional liberalism” as Jim and Linda present and defend it; I continue to think that the Constitution is best regarded primarily, and more prosaically, as a mechanism for (limited-purpose and limited-reach) lawmaking, the operation of which is constrained by “negative” rights-protections; I think that the claims of families, associations, and churches to remain out-of-sync with current political majorities, or with liberalism more generally, are even stronger than Jim and Linda acknowledge; and I think that those scholars who “are preoccupied with the limited institutional capacities of courts” are, well, probably right to be so. But, it probably does not add much to this symposium simply to report my hard-headedness or general reservations.
So, a more focused thought on a particular part of the book: In Chapter 6 (“Conflicts between Liberty and Equality”), Linda and Jim use four familiar cases (Roberts, Dale, Bob Jones, and Christian Legal Society) to “illustrate the struggles between the formative projects of civil society and government and between competing visions of diversity and pluralism.” Fair enough — these case do indeed illustrate these struggles. But, at the end of the chapter, and at the end of book, I didn’t feel like I had been given or had found what I thought was promised, i.e., “a framework for resolving clashes of rights so as to promote ordered liberty and equality citizenship for all.” That is, despite the use of the term “mutual adjustment”, it did not appear to me that what was presented in the concluding pages and paragraphs of the chapter was so much a “framework” for resolving the described clashes through pluralism-appreciating “adjustment” as it was a declaration that the ultimate and to-be-desired resolution of these clashes in favor of the “liberal” position will often be facilitated by “prudential” “interim” strategies like religious exemptions. To be told by the liberal-constitutional state that — not to worry — it is willing to go slow in bringing dissenting or just different associations into congruence will not, I imagine, be very comforting to those who wonder why that state assumes it has the legitimate authority to insist on congruence now or later.
- See more at: http://www.concurringopinions.com/archives/2013/03/mutual-adjustment-as-merely-congruence-delayed.html#sthash.MbEEWvpx.dpuf
This was a busy week for me. The same day I joined as of counsel on an amicus brief arguing for protecting same-sex marriage and religious liberty, I joined in writing and filing a brief in one of the HHS mandate cases brought by a for-profit business, Newland v. Sebelius (now in the court of appeals for the Tenth Circuit). The amici are former Congressman Bart Stupak and the Democrats for Life of America, and the burden of the brief is to focus attention on the plaintiffs' claim against being forced to cover medicines that are, or that may colorably be thought to be, abortifacients. Here is a significant portion of the Summary of Argument:
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I. Multiple federal and state laws show that our nation’s tradition of protecting conscience, including religious conscience, is at its strongest and broadest for individuals and organizations that object to facilitating abortions. Plaintiffs’ complaint alleges that the mandate, as applied to emergency contraceptives that may cause abortions, violates several such provisions, including in the Affordable Care Act itself. But the widespread pattern of conscience protection for objectors to abortion also supports plaintiffs’ claim under the Religious Freedom Restoration Act (“RFRA”), which served as the basis for the preliminary injunction. Three conclusions can be drawn from this pattern of conscience protection. First, although health-care conscience laws cover religious and moral objections to several procedures, objections to abortion carry especially strong weight in American law. They fall within our tradition of protecting objectors from participating in actions, including assisted suicide, abortion, capital punishment, and war, that the objectors believe unjustly take human life. Second, the right not to facilitate or support abortions protects a wide range of objectors, regularly extending to individuals engaged in for-profit commerce and to for-profit businesses. Finally, our tradition protects objectors to abortion far beyond the case of direct involvement in the performance of the abortion.
Plaintiffs’ objection to covering emergency contraception falls within the tradition of broadly protecting conscientious objections to facilitating abortions. Although the government claims that terminating an embryo before it implants in the uterus is not an abortion, the relevant matter for the claim of conscience under RFRA is plaintiffs’ belief that a distinct human life begins at fertilization: it is no salve to their conscience to be told that the government defines abortion differently. There is a colorable reason to believe that emergency contraceptives may act to terminate embryos. And even applying the government’s definition, there is evidence that Ella may terminate embryos after implantation.
II. The longstanding, pervasive tradition of broadly accommodating conscientious objections to facilitating abortions has two implications for this case. First, it supports plaintiffs’ argument that the contraception mandate “substantially burdens” their religious exercise, triggering the government’s duty under RFRA to demonstrate that this burden serves a “compelling governmental interest” and does so by the “least restrictive means.” 42 U.S.C. § 2000bb-1(a), (b). The mandate requires plaintiffs to provide insurance coverage for procedures they believe are grave moral evils. The government’s attempts to deny this burden must be rejected. The government says that for-profit corporations and their owner-operators cannot engage in religious exercise; it also says that an employer suffers only an insubstantial, “attenuated” burden from being forced to cover methods and procedures that employees choose for themselves whether or not to use. Both arguments are irreconcilable with our tradition of protecting health-care-related conscience in the commercial sphere—in particular the strong tradition, under federal and state laws, of protecting objections to abortion. Protections for objections to facilitating abortion extend to multiple categories of for-profit entities and individuals engaged in commerce, and to many kinds of indirect facilitation, including mandatory coverage of abortion in insurance plans. When impositions are repeatedly prohibited under various conscience provisions, they cannot be dismissed as “insubstantial” burdens under RFRA.
MOJ's own Tom Berg, along with Douglas Laycock (University of Virginia School of Law) and Marc Stern (American Jewish Committee), on behalf of the American Jewish Committee, have submitted an amicus brief to SCOTUS in Hollingsworth v. Perry (the Prop 9 case) and USA v. Windsor (the DOMA case). The brief makes a strong plea for protecting religious liberty in the context of the legalization of same-sex marriage. The brief also argues:
"In Perry, wholly excluding same-sex couples from civil marriage deprives them of a fundamental right. And as implausible as it is to explain civil marriage in terms of protecting children, it is even more implausible to use children to explain the difference between civil marriage and a civil union that would — if it were sufficiently well understood to be enforceable as a practical matter — confer all the same rights as civil marriage. If the Court prefers to proceed cautiously, deciding one case at a time, it should affirm the judgment in Perry on the narrow ground stated by the Court of Appeals. The Court should not reverse on the merits. To do so would be wrong, for the reasons we have stated; it would also be unstable. In the area of same-sex relationships, where public understanding of the underlying facts is rapidly changing, the Court cannot reach a stable constitutional resolution by broadly rejecting constitutional claims. The last time it attempted to do so, in Bowers v. Hardwick, 478 U.S. 186 (1986), it overruled the decision just seventeen years later, and parts of the Bowers opinions are now a permanent embarrassment in the United States Reports. The Court should not repeat its Bowers mistake in these cases."
I've been thinking some about Pope Benedict's "legacy" for the MOJ "Catholic Legal Theory" project, and coming to the conclusion that identifying, exploring, engaging, and embracing this legacy are tasks beyond my capability. A little help?
In the meantime, here's a post I did, about 8 years ago, during our last sede vacante:
John Paul II and the Law: A First Try
I'm sure that many of us are reflecting on the effect that the Holy Father had on our faith and lives, and thanking God for the gift of his ministry and example. It also makes sense, here on MOJ, for us to consider what the Pope's work and thought might mean for law and legal theory. A few thoughts:
First, many of the Pope's writings focus on the importance of culture as the arena in which human persons live, thrive, and search for truth. His was not a reductionist Christianity -- one in which the choices and hopes of persons drop out of the analysis, and are replaced merely by one "dialectic" or another. Nor is Christianity merely a matter of a rightly ordered interior life. We are precious and particular, bearing the "weight of glory," but also social, relational, political -- and cultural. And, he recognized, law both shapes and is shaped by culture.
Second, the Pope returned again and again to the theme of freedom. Certainly, for lawyers -- and particularly for lawyers living and working in our constitutional democracy -- questions about the extent to which law can and should liberate (and, perhaps, liberate-by-restraining?) are appropriately on the front burner. It's fair to say that John Paul II proposed an understanding of freedom -- and of its connection with (T)ruth -- that contrasts instructively with the more libertarian, self-centered understanding that seems ascendant in our law (particularly our constitutional law) today.
Third, I imagine we will be working out for decades the implications of the Pope's proposal that the God-given dignity of the human person, and the norm of love, richly understood, should occupy center-stage in our conversations about morality -- rather than utilitarian calculations, historical movements, or supposed categorical imperatives. This proposal seems particularly powerful when it comes to the matter of religious freedom.
Finally, there is the (perhaps, at first) surprising fact that, at the end of the 20th Century, it was a mystical Pope who "stepped up" and reminded a world that had been distracted, or perhaps chastened, by reason's failures, and had embraced a excessively modest, post-modern skepticism, of the dignity and proper ends (without overlooking the limits) of reason.
There's a lot more to say, of course. I would, for what it's worth, encourage any MOJ readers who work with or advise law journals to consider commissioning essays, or even symposia, on John Paul II's jurisprudential legacy.
"An Essential Element of Strong Friendship Is Ongoing Conversation"
VATICAN CITY, FEB. 29, 2008 (Zenit.org).- Here is the address Mary Ann Glendon, the new ambassador of the United States to the Holy See, gave today upon presenting her credentials to Benedict XVI.
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Your Holiness,
It is a distinct honor and pleasure to present to you my credentials as Ambassador Extraordinary and Plenipotentiary of the United States of America to the Holy See. I extend warm greetings from President George W. Bush and the American people. I am grateful to President Bush for the opportunity to represent him and my country to the Holy See.
Your Holiness, in your message for the celebration of the World Day of Peace this year, you wrote “We do not live alongside one another purely by chance; all of us are progressing along a common path as men and women, and thus as brothers and sisters.” The United States of America believes that strong alliances, friendships and international institutions enable us to advance along that path through shared efforts to promote freedom, prosperity, and peace. We recognize a privileged place in such a partnership for the Holy See whose strong moral voice resonates in the hearts of men and women throughout the world.
* * * The United States and the Holy See have collaborated in recent years on many projects to protect and enhance the dignity of the person. The United States is particularly proud of its initiatives to tackle trafficking in human beings. U.S. funded programs have provided anti-trafficking training and support to hundreds of women religious in Europe, Africa, Asia and South America. Similar programs for ...
Your Holiness, poverty, hunger and disease continue to plague too many regions of our world. For the United States, these are not only humanitarian issues but concerns that affect regional stability and security. We are striving, therefore, to provide impoverished nations with the economic and social tools that will empower them to seize hold of their own destiny. The United States is leading the struggle against global poverty with strong education initiatives and with humanitarian assistance programs like our new Millennium Challenge Account which are geared toward strengthening democracy, transparency, and the rule of law in developing nations. The United States is also in the forefront of efforts to combat global hunger. Today, more than half the world's food aid comes from the United States. In his State of the Union address, President Bush referred to an innovative proposal to provide food assistance by purchasing crops directly from farmers in the developing world, in order to build up local agriculture and help break the cycle of famine. The United States is also confronting the infectious diseases that are taking such a toll in developing nations. We are working to cut the number of malaria-related deaths in 15 African nations. Through the President’s Emergency Plan for AIDS Relief, the United States is treating 1.4 million people. We can and will bring healing and hope to many more.
Your Holiness, the United States is an instrument of hope in the world because its people are compassionate and generous. That is why we are eager to work in partnership with the Holy See to enhance the lives of all the world’s people, but in particular, those who are caught up in the despair that comes from poverty, hunger and disease. Your Holiness, in your encyclical "Spe Salvi," you reminded us that “our lives are involved with one another, through innumerable interactions they are linked together. No one lives alone.” It is our commitment to this essential human solidarity that inspires the compassionate actions of the United States in and for the human family.
Today, the NYT -- in keeping with its usual pattern of reporting and commentary regarding the Catholic Church (which, in my view, is one that involves providing and generously stocking a forum for people to complain, sometimes in an informed way, sometimes not, about the Church) -- ran this op-ed by Paul Elie (the author of a wonderful book, The Life You Save May Be Your Own), "Give Up Your Pew For Lent," which contends that "if the Pope can quit, Catholics can, too."
Because I so admired Elie's book, this piece made me sad (when a similar bit from, say, Maureen Dowd would have been just irritating). In several places, Elie purports to be speaking for "American" Catholics and about how "we" feel about "our" church, and about the many ways in which ("we" think) it has let us down. So, for example, for "us", "it has been 'all bad news, all the time' since Benedict took office in 2005." Well, this is just nonsense. Re-read Deus caritas est and Spes salvi. Watch again video from his visits to the United States, or his address in Parliament. There's been bad news and there have been challenges, for sure, and big ones -- though I imagine different Catholics would come up with different lists of what those challenges and bad news have been -- but, "all bad news, all the time?" So much so, in fact, that we're urged to "resign" -- if only for a time? I'm sure Mr. Elie is accurately reporting his own state-of-mind, and it is what it is, but it isn't mine, and it isn't all, or -- I suspect -- even most "American Catholics'".
Particularly off was Elie's citation of Flannery O'Connor -- about whom he certainly knows more than I do! -- in connection with his suggestion that taking a "time out" from the Church would "let us begin to figure out what in Catholicism we can take and what we can and ought to leave." I'm pretty sure that O'Connor would have had some tasty and tart responses for the suggestion that this "figuring out" -- depriving the pews of the honor of our presence so that we can decide what in Catholicism is worthy of a people like us -- is something that Catholics go in for.
But, putting all that aside . . . there's no avoiding the fact, it seems to me, that the Times thinks it's part of its job to keep the complaints about the Church flowing and visible (without, at the same time and in similar ways, serving as a complaint-conduit about other communities and institutions). So . . . why should any of us (liberal, conservative, whatever) support it? Even if we agree with the complaints?
In the latest issue of First Things, David Bentley Hart (an amazing writer, in my view) has a piece called "is, ought, and nature's laws" in which he rejects "the attempt in recent years by certain self-described Thomists, particularly in America, to import this [natural-law] tradition into public policy debates, but in a way amenable to modern political culture. What I have in mind is a style of thought whose proponents (names are not important) believe that compelling moral truths can be deduced from a scrupulous contemplation of the principles of cosmic and human nature, quite apart from special revelation, and within the context of the modern conceptual world. This, it seems to me, is a hopeless cause."
Hart concludes:
To put the matter very simply, belief in natural law is inseparable from the idea of nature as a realm shaped by final causes, oriented in their totality toward a single transcendent moral Good: one whose dictates cannot simply be deduced from our experience of the natural order, but must be received as an apocalyptic interruption of our ordinary explanations that nevertheless, miraculously, makes the natural order intelligible to us as a reality that opens up to what is more than natural.
There is no logically coherent way to translate that form of cosmic moral vision into the language of modern “practical reason” or of public policy debate in a secular society. Our concept of nature, in any age, is entirely dependent upon supernatural (or at least metaphysical) convictions.
R.J. Snell responds, here and here, contending -- among other things -- that Hart is attacking a "straw man", because John Finnis's account of natural law is not as Hart describes it. I'm painfully aware that I'm not close to being competent to referee this debate. If I have it right, Snell's claim is that the Finnis (et al.) account of natural law does not involve deriving, or "reading off", moral truths from "nature"; it has to do, instead, with (underived) principles of practical reason. With respect to these princples, Snell writes, "[n]either are they innate, although they are self-evident; grasping them entails 'no process of inference' but rather an 'act of non-inferential understanding.'” He adds:
Rather than Hart’s “clear commands” for “any rightly attentive intellect,” contemporary natural law requires sophisticated casuistry, which perhaps explains why moral theologians most persuaded by physicalism sometimes accuse contemporary natural law theorists of permissiveness, since natural law theory readily admits the complexities and vagaries of the agent’s intentions.
An interesting (and sobering) interview with Jonathan Last, over at National Review, about demography and his book, What To Expect When No One is Expecting, here. A bit:
[C]hildren are — as high-minded economist types will note — both public and private goods. And society can’t function very well, or for very long, without a certain number of them being born. So whatever people decide to do at the individual level, there are macro effects to consider. I would just note that it’s a little weird that certain types of people are happy to consider the macro effects of individual behavior when it comes to smoking, or drinking soda — but say that we’re not allowed to notice these things when it comes to kids. I mean, it’s only the entire future of Western civilization we’re talking about.
