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, December 17, 2012

A Prayer for the Holy Innocents

During this time of Advent in 2012, so many of us as faithful Christians are finding it painfully difficult to experience the Joy of the Season, when others are lost in such grief.  While we prepare to celebrate the birth of a child, we are heart-broken by the loss of so many children.

Yet, it was the same at the beginning of our Christian faith, two millennia ago.  The Nativity of our Lord, which we celebrate on December 25, is closely followed in the liturgical calendar by the Feast of the Holy Innocents, which we commemorate on December 28.

Having been deceived by the Magi as to where and when the Messiah would be born, King Herod in a desperate and wicked attempt to remove any rival to his throne ordered that all the male infants in Bethlehem should be killed.  Matthew 2:16.  This horrific event had been prefigured by the similar massacre of the innocents at the birth of Moses.  Exodus 1:15-17.

The-holy-innocents

The words of the Gospel of Matthew, recalling the prophecy of Jeremiah, are especially poignant today:

A voice was heard in Ramah, sobbing and loud lamentation; Rachel weeping for her children, and she would not be consoled, since they were no more.

Yet, even in the midst of such sadness, hope prevailed.  As the evil of sin and the wages of a depraved culture were revealed by this unspeakable wrong committed against the innocents, the Christ child shows us another way of love.  As the Gospel of John writes of the coming of the Christ:  "The light shines in the darkness, and the darkness has not overcome it."

And so I echo the thoughtful words of Kevin Lee in the post below, "tomorrow, perhaps, we can return to educating [our children] in our faith, our morals, and the best of our traditions."

In an earlier version of the Roman ritual, this prayer is offered for the Feast of the Holy Innocents:

Let us pray. O Lord, Jesus Christ, Who didst embrace and lay thy hands upon the little children when they came to thee, and didst say to them: "Suffer little children to come unto me, and forbid them not, for the kingdom of heaven is theirs, and their angels always see the face of my Father," — look with a Father's eye upon the innocence of these children and their parents' devotion, and bless them this day through our ministry. By thy grace and goodness let them make progress in desiring thee, loving thee, fearing thee, obeying thy commandments — thus coming to their destined home, through thee, Saviour of the world, Who with the Father and the Holy Spirit livest and reignest, God, forever and ever. Amen.

Saturday, December 15, 2012

Flanders and Posner on Stephen (and me)

In the latest issue of the Ohio State Journal of Criminal Law, Chad Flanders and Stephen with wigRichard Posner have written commentaries about the work of Sir James Fitzjames Stephen, which follow, to one extent or another, this piece of mine.  I've learned a lot from Judge Posner's earlier work on Stephen and from correspondence with him about some of Stephen's ideas.  The judge focuses on the importance of "force" in Stephen's conception of criminal law and punishment, something which I discuss in my piece as well.

As to Professor Flanders's piece, I should say first that I'm very grateful to him for taking the time to respond to my work at length; I am glad to have provoked this response.  On the substance, we have, as will be plain for those who read the pieces, many disagreements, and I'm also grateful to have them spelled out as crisply and energetically as Chad does here.  But one area where I think we very much agree is this.  Theory is certainly not objectionable, provided that it is understood as the activity of giving organized thought to any issue.  Indeed, I think I can cheerfully agree with that view, and still maintain my claims about some of the deficiencies of punishment theory today, deficiencies which, Chad is right to point out, may not be unique to work in this area. 

But this is a blog post, and interested readers (all 2 of you) should take a look.  Here's something from Judge Posner's piece that might be useful as well: "I do think [Stephen] had a theory of criminal law and a philosophy of life, but he was not a systematic or disciplined thinker, and this allowed him to make observations that owe nothing to theory, that are simply shrewd and sensible[.]"

Friday, December 14, 2012

The Evil in Sandy Hook

Like most Americans, I am shocked and tearful this evening. The deaths of so many innocent children at the hands of Adam Lanza in Sandy Hook, Connecticut, brings unimaginable suffering to this Advent season. The senselessness of the killings, the nearness in time to the killings in Oregon, Colorado, and Arizona, the brutality. These facts alone have become almost routine and even ordinary. Yes, people die at the hands of merciless killers. And it is always senseless.

Predictably, politicos of all sorts behaved badly today. Some on the left tried to organize a protest against the Obama Administration’s request for restraint—to wait for another day to renew the Democrats’ long-sought gun reform. And on the right, the predictable defenses of gun ownership sprang up immediately across the blogs and social media. (The NRA wisely silenced their Twitter account for the day.)  This all seems like business as usual for the handling of the traumas of mass shootings in the contemporary American culture of death.

But, today was different, if only for the innocence and youth of the victims. It "upped the ante"; it made the crime seem so much more horrible than the typical mass shooting. The clinical language that we have adopted for talking about the “ordinary” brutality of the contemporary American culture of death seemed unable to express the moral meaning of it. This point was evident when CNN’s Doctor Drew Pinsky ran out of medical words to describe his outrage and horror. “This wasn’t like Portland,” he said, “this wasn’t just an ordinary instance of mental breakdown. It was true psychopathy…. It was evil.”  He quickly regained his professional demeanor and talked about the need for people to report odd behavior that might suggest a tendency to violence. But, for a moment he was at a loss to find a clinical term that captured his sense of the moral meaning of the event.  Later in the day, Dan Malloy, the Governor of Connecticut, made a similar statement, “Evil touched this community today.”

The theological conception of evil is a rich resource for understanding the horror and inexplicable loss of life. It reminds us of the facts of existence in this Fallen world. That evil rarely touches the innocent children of our most immediate experience--that we can live among sanitized clinical descriptions--is a rare blessing. The loss of innocent children is a daily occurrence for parents around the world, not only through acts of senseless violence, but also through disease, famine, neglect, heartless laws, and cruel governmental policies. To live in this world is to live in a Fallen world. It means living in the midst of profound evil. That it rarely touches most of us in America is a gift of God’s grace borne in the history, culture, and sacrifices of the American people. It is a gift preserved by diligence, sacrifice, maturity, wisdom, and fellowship.

Evil will always be at hand, and we cannot escape it. There is no utopia, no hope for a heaven on earth. It cannot be gained by stronger gun control laws or by maintaining a well-armed citizenry. No governmental policy will bring it about; no retreat from society to isolation will seclude us from it. Evil pervades this Fallen world, and the division does not run between party lines. The line between good and evil runs though the human heart. 

The best we can hope to achieve is to return to our homes and, as President Obama was right to say, “hug our children a little tighter tonight.” And tomorrow, perhaps, we can return to educating them in our faith, our morals, and the best of our traditions. We can reach out to our neighbors, our parishes, and our secular communities--the places where our values are formed in the intimate details of daily life and the quotidian acts of kindness that we show one another. These are the best hope for facing evil. And our children, with their profound sense of awe and wonder, are our greatest guides in this Fallen world because they hold the key to love and hope. Hold them tight. 

Hart on the suffering of innocents

Here's David Bentley Hart, from his Tsunami and Theodicy (HT:  Matthew Schmitz, First Things):

Famously, Dostoevsky supplied Ivan with true accounts of children tortured and murdered: Turks tearing babies from their mothers’ wombs, impaling infants on bayonets, firing pistols into their mouths; parents savagely flogging their children; a five-year- old-girl tortured by her mother and father, her mouth filled with excrement, locked at night in an outhouse, weeping her supplications to “dear kind God” in the darkness; an eight-year-old serf child torn to pieces by his master’s dogs for a small accidental transgression. 

But what makes Ivan’s argument so disturbing is not that he accuses God of failing to save the innocent; rather, he rejects salvation itself, insofar as he understands it, and on moral grounds. He grants that one day there may be an eternal harmony established, one that we will discover somehow necessitated the suffering of children, and perhaps mothers will forgive the murderers of their babies, and all will praise God’s justice; but Ivan wants neither harmony—“for love of man I reject it,” “it is not worth the tears of that one tortured child”—nor forgiveness; and so, not denying there is a God, he simply chooses to return his ticket of entrance to God’s Kingdom. After all, Ivan asks, if you could bring about a universal and final beatitude for all beings by torturing one small child to death, would you think the price acceptable? . . . 

I do not believe we Christians are obliged—or even allowed—to look upon the devastation visited upon the coasts of the Indian Ocean and to console ourselves with vacuous cant about the mysterious course taken by God’s goodness in this world, or to assure others that some ultimate meaning or purpose resides in so much misery. Ours is, after all, a religion of salvation; our faith is in a God who has come to rescue His creation from the absurdity of sin and the emptiness of death, and so we are permitted to hate these things with a perfect hatred. For while Christ takes the suffering of his creatures up into his own, it is not because he or they had need of suffering, but because he would not abandon his creatures to the grave. And while we know that the victory over evil and death has been won, we know also that it is a victory yet to come, and that creation therefore, as Paul says, groans in expectation of the glory that will one day be revealed. Until then, the world remains a place of struggle between light and darkness, truth and falsehood, life and death; and, in such a world, our portion is charity. 

As for comfort, when we seek it, I can imagine none greater than the happy knowledge that when I see the death of a child I do not see the face of God, but the face of His enemy. It is not a faith that would necessarily satisfy Ivan Karamazov, but neither is it one that his arguments can defeat: for it has set us free from optimism, and taught us hope instead. We can rejoice that we are saved not through the immanent mechanisms of history and nature, but by grace; that God will not unite all of history’s many strands in one great synthesis, but will judge much of history false and damnable; that He will not simply reveal the sublime logic of fallen nature, but will strike off the fetters in which creation languishes; and that, rather than showing us how the tears of a small girl suffering in the dark were necessary for the building of the Kingdom, He will instead raise her up and wipe away all tears from her eyes—and there shall be no more death, nor sorrow, nor crying, nor any more pain, for the former things will have passed away, and He that sits upon the throne will say, “Behold, I make all things new.”

Couperin, Les Barricades Mysterieuses

There is nothing one can say about the horror of the shootings in Connecticut.  Here, instead, is one of the most beautiful pieces of music I know, Les Barricades Mysterieuses, by the seventeenth century master Francois Couperin (le Grand), patriarch of seven brilliant Couperins who successively filled the organmaster position at the church of Saint-Gervais in Paris, to express something noble and good about the human spirit.

Catholic Social Doctrine, association, labor . . . and Michigan

In recent weeks, for various reasons, I have dramatically cut-back my consumption of online, TV, and dead-tree news and commentary -- unless it has to do with Duke basketball or Notre Dame football.  I have to admit, it's been great.  I had been overdoing it, and it seemed (and seems) a better response to my disappointment with the election results, and my concerns about their implications, to focus on Advent and coaching fifth-grade basketball.

Among the things I don't miss about the pre-election fire-hose of news-and-opinion -- besides the endless self-affirming and snarky political Facebook posts -- is the all-too-frequent strategic and tactical deployment of (as opposed to conscientious and prayerful engagement with) Catholic Social Doctrine, and the invocation of an (in Catholic teaching) not-warranted distinction between "social justice" teaching and, say, pro-life and religious-freedom teaching.  But, of course, the fact that I'm for the most part ignoring this deployment doesn't mean it is not still happening (yes, yes, on both sides, I know).  Certainly, the debates about the "fiscal cliff", and about the merits of the union-related legislation in Michigan, are providing more occasions and opportunities for it to happen.

Now, in recent months, many Catholic bloggers, thinkers, writers, etc., have been quick (appropriately so, in many cases) to identify and criticize what they regard as mis-uses by conservatives and Republicans of Catholic Social Doctrine and Catholic teaching generally.  They have pointed out, for example, that "subsidiarity" is not reducible to "federalism", or "localism", or across-the-board smaller government (for a great piece on what it is, see this, by Patrick Brennan).  They've pointed out the importance of not confusing "intrinsic evil" with "the worst and most bad things."  And so on.

In some cases, these corrections were important.  That said, I think similar vigilance needs to be exercised with respect to invocations of Leo XIII, Catholic Social Doctrine, the dignity of labor, the freedom of association, Christian moral anthropology, etc., in course of sweeping criticisms of "anti-union" legislation (see, e.g., recent enactments in Indiana, Michigan, and Wisconsin) or overbroad endorsements of Labor's agenda and practice in present-day America.

To be clear:  Civil society matters; the human person is relational and situated; work is a participation in the creative activity of God; all human persons, because they are persons, possess a dignity; workers have a right to associate, organize, and advocate (consistent with public order and the common good) for their interests; and profit-maximization is not a moral-trump.  Labor unions helped bring about many good things; opponents of labor unions have often done bad things.  It would be wrong for a political community to prohibit or unreasonably burden the freedom of association that workers (like the rest of us) enjoy.  In other words, much of what left-leaning Catholics like Michael Sean Winters and Morning's Minion and Lew Daly have been saying about labor-related matters is true.

But . . . just as "subsidiarity" is more than a slogan about "small government", the writing and thought of Leo XIII on the social question and the social order is not reducible to "unionism, as presently defended and advocated for in early 21st century America, is to be supported by faithful, thoughtful Catholics."  It's not that unions were once necessary, but now they are not.  It's that unionism is to be supported by faithful, thoughtful Catholics when it is consistent with, and actually carrying out, Catholic Social Doctrine, and not (or, at least, not necessarily) when it is not.  To resist overreach and bad-acting by unions is, well, to resist overreach and bad-acting; it's not to stomp on Rerum novarum

In my view, it is vital to keep in mind, as we try to think with Christ and the Church -- and not with either the Chamber of Commerce or the Democratic Party -- about union-related policy, to take into account (to the extent we can) the costs and benefits of proposals and practices, and to look at what unions are, and are not, actually doing with the power they have, and not merely to wield a "the Church teaches that unions are good" stamp.  In fact, unions and unionism are sometimes bad (just as religious freedom -- which is good -- is sometimes abused).  

For example:  In the United States, teachers unions are, on balance, definitely not good.  They have, historically, been a powerful force for anti-Catholicism and the obstruction of reforms, including reforms that the Church clearly teaches are morally required.  It is a grave injustice to require parents who want their children to be educated in (reasonably regulated and reasonably well performing) Catholic schools to pay twice (that is, to deny public funding to those parents).  Legislatures should not extend special powers to teachers unions, and they should oppose them to the extent it is necessary to re-orient education-related spending and policy in the best interests of children (and in a way that advances religious freedom and pluralism) and not of public employees who work in government-run schools.  Another point:  It is not good for unions to use workers’ contributions to support political causes – say, abortion rights – that are not relevant to the association’s purpose and mission. 

Finally, whatever the merits of the “closed shop” arrangement might be in the commercial context, it is extremely difficult to defend – indeed, it would seem to violate, rather than advance, the freedom of association – in the public-service and public-education sectors.  Too often, the relationship between legislative majorities, or powerful legislative interests, and public-employee unions is so cozy as to make it difficult to meaningfully describe these unions as part of a healthy civil society.  Indeed, and more generally, a thoughtful and nuanced Catholic approach to these matters would insist on a distinction between the public-employment context and the private-employment context – not because public employees do not have a right to associate (of course they do!) but because they do not have a moral right to use political power to extract excessive benefits for themselves at the expense of third parties (i.e., taxpayers) who are not meaningfully “at the table” of the relevant negotiations.  And so on.

Anyway . . . Go Irish.  And, have a blessed Advent.

 

Thursday, December 13, 2012

New blawg rankings

Paul Caron's new law-blog rankings are out, and MOJ continues its relentless drive for domination of the Catholic legal theory conversation.  (Crickets . . . )

Why does the Pope tweet "du" rather than "sie"?

To add to the list of 'questions your kids ask that you're embarrassed not to be able to answer"  . . .

My son, who is studying German in college, asked me the following, and I couldn't answer.  I don't think it has anything to do with the informality of Twitter, because I think he's right about the informal 'du' being used in religious conversation.   I suspect some MOJ readers know the answer.  Please comment if you do!

I was looking at Pope Benedict's new Twitter account, and out of curiosity, I checked the German one too: https://twitter.com/Pontifex_de. Is it typical to religious authorities like him to refer to people with the informal "you?" Or is that some kind of special "pope" tense? I know that Germans refer to God with "du," so it could be related to that. Or could it have something to do with the Pope being the "father" of the rest of the Church--he uses "du" because he's talking to his "children?"

Traditionalism

Needless to say, I welcome The Economist's recent recognition that traditionalist Catholics are the avant-garde of our age.  As one would expect, that recognition is generating some exciting discussion, including by Anna Williams at First Things.  Ms Williams concludes by considering the worry that traditionalists wish to withdraw from the world.  The actual direction pursued by traditionalists is the opposite, however, and that's what the real fuss is about.  Traditionalists do not wish to separate from the culture; they are emphatically not separatists.  Traditionalists wish to correct and transform culture in the image of the incarnate Christ.  Traditionalists are not willing to give up on the culture, because its transformation contributes to the salvation of souls.  It is this intransigent insistence about tranfsorming the world that the enemy resists with all its might and theory.  As I argued in a recent paper, "the Church is not a bomb shelter" into which the faithful are to retreat.  The Church is the society that fortifies the faithful to go forth and get the job done: the Church militant.  I returned to the theme of the moral exigence of the Church's and the lay-faithful's being intransigent about creating Catholic culture here.  When one understands the Church as Christ-continued in the world, her transformative capacity becomes unmistakable -- and a cause of hope.  There is no other reason to hope.

Wednesday, December 12, 2012

Sufficiently Nothing

"We cannot affect the outcome because we have consented to move within that cosmion according to a social mode of Christianity that, as Louis Veuillot so vividly put it, is 'sufficiently nothing to live in peace with the rest of the world.'"  [Ferrrara, Liberty, the God that Failed 642 (2012)].

If you think Vatican II and its various false fruits were a surprise, and even if you celebrate Vatican II -- read Veuillot!  As Veuillot (1813-83) already saw, any "Church" that sought to be so much of a nothing as to live in peace with the rest of the world would be denied even that false consolation.  See now the impending proceedings regarding the contraceptive mandate as they concern the Church.