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.

Tuesday, September 4, 2012

Carozza and Philpott on the Catholic Church, Human Rights, and Democracy

By Rick Garnett

My friends and colleagues, Dan Philpott (Political Science) and Paolo Carozza (Law) have a great new paper out.  Check it out (HT:  Center for Law and Religion Forum):

In Pope Benedict XVI’s address to the Roman Curia of December 22, 2006, he made reference to the Catholic Church’s own journey toward embracing human rights and religious freedom.  Perhaps surprisingly to some, he gave credit for this development to the Enlightenment, which he said could count human rights and religious freedom as its “true conquests.” More predictably to most, he reiterated his longstanding criticism of the Enlightenment’s attempt to ground these principles on positivist and skeptical foundations. He argued rather that a constructive synergy of faith and reason was the best foundation for tolerance, human rights, and the preservation of religious freedom. 

Benedict’s thesis points to an ambivalent historical relationship between the social teachings of the Catholic Church and modern political institutions based on human rights and democracy. It is in part a story of convergence. Gradually, over the course of the twentieth century, then far more rapidly beginning with the Second Vatican Council, following upon several centuries of consistent resistance to the momentum of European politics, the Church came to embrace norms of human rights and democracy reflective of those that appeared in international instruments like the UN Charter and the Universal Declaration of Human Rights as well as the constitutions of western democracies. As the term convergence—rather than accommodation or adaptation—suggests, the Church did not simply conform itself to what others had long before pioneered. True, as Benedict argues, a dialogue with the Enlightenment did beget Catholic evolution in certain dimensions of rights, especially religious freedom. But it is also the case, as we point out below, that the Church has articulated a tradition of rights since as early as the sixteenth century. For its own part, the state and the “international society” of states had to evolve, too. The sovereign states system signified by the Peace of Westphalia in 1648 clearly evaded the accountability that human rights and democracy demand. The French Revolution and its liberal republican legatees in Europe and Latin America propounded a portfolio of rights, to be sure, but with prominent lacunae, particularly in the case of the religious freedom of the Catholic Church. Indeed, the Church’s own willingness to embrace religious freedom at Vatican II arose in part from the assurance that post–World War II Western European democracies as well as the US Constitution provided that the Church could be free under a liberal democratic constitution.

But the long rapprochement between the Church and modern norms of human rights and democracy is neither complete nor un-contested. After Vatican II, tensions between the Church and modern states and international institutions did not disappear; ongoing clashes included the Church’s complex confrontation with authoritarian states and its fracases with democracies over abortion, divorce, fetal research, euthanasia, war, and other issues, with the UN overpopulation policy, and with the European Union over Europe’s Christian identity and its policies on the family and sexuality.

This article argues that the Catholic Church’s relationship to human rights and democracy in the modern world can only be understood through both of the above dynamics: a historical convergence and the persistence of tension. The first half of the article argues for this dual theme in the doctrines of the Church, where today, as over the past several centuries, the Catholic conception of the common good yields both an embrace of human rights and democracy and a critique of their secular espousal. The second half of the article focuses on practice, showing how the Church’s efforts to advance its teachings on human rights and democracy sometimes succeed and sometimes encounter resistance, both on account of conceptual differences with modern states and international organizations as well as problems rooted in institutional realities. Doctrine and practice are not hermetically separable, but they are distinct enough for our analysis. Both realms, we argue, manifest historical convergence as well as ongoing ambivalence.

Don Drakeman Blogging at CLR Forum

By Marc DeGirolami

The extraordinary Donald L. Drakeman is blogging with us over at CLR Forum for the month of September.  If you are not familiar with Don's work, you should immediately get yourself a copy of his excellent Church, State, and Original Intent (CUP 2009).  His first post (one of a three part series) discusses the unfortunate neglect by students of church and state of the writings and work of Theophilus Parsons.

Monday, September 3, 2012

"Non nova sed noviter"

By Patrick McKinley Brennan

On the topic of "reform" in Church teaching, I think the following is especially helpful, emphasizing, as it does, an "inviolable law":
Not without serious reason, Venerable Brothers, have We wished to recall these things in your presence. For unfortunately it has happened that certain teachers care little for conformity with the living Teaching Authority of the Church, pay little heed to her commonly received doctrine clearly proposed in various ways; and at the same time they follow their own bent too much, and regard too highly the intellectual temper of more recent writers, and the standards of other branches of learning, which they declare and hold to be the only ones which conform to sound ideas and standards of scholarship. Of course the Church is very keen for and fosters the study of human branches of learning and their progress; she honors with special favor and regard learned men who spend their lives in the cultivation of learning. However matters of religion and morals, because they completely transcend truths of the senses and the plane of the material, pertain solely to the office and authority of the Church. In Our encyclical letter, Humani generis, We described the attitude of mind, the spirit, of those whom We have referred to above; We also recalled to mind that some of the aberrations from the truth which We repudiated in that Encyclical had their direct origin in a neglect of conformity with the living Teaching Authority of the Church. Time and again St. Pius X, in writings whose importance is known to all of you, urgently stressed the need for this union with the mind and teaching of the Church. His successor in the Supreme Pontificate, Benedict XV, did the same; in his first Encyclical, after solemnly repeating Pius' condemnation of Modernism, he thus describes the attitude of mind of followers of that doctrine: "He who is influenced by its principles disdainfully spurns whatever appears old, and eagerly pursues the new: in his manner of speaking of divine things, in performance of divine worship, in Catholic usages, even in private devotions" (AAS VI [1914], 578). And if there are any present-day teachers making every effort to produce and develop new ideas, but not to repeat "that which has been handed down," and if this is their whole aim, they should reflect calmly on those words which Benedict XV, in the Encyclical just referred to, proposes for their consideration: "We wish this maxim of our elders held in reverence: Nihil innovetur nisi quod traditum (Let nothing new be introduced but only what has been handed down); it must be held as an inviolable law in matters of faith, and should also control those points which allow of change, though in these latter for the most part the rule holds: non nova sed noviter (Not new things but in a new way)."
Venerable Pope Pius XII 
Allocution Si Diligis to Cardinals, Archbishops and Bishops following the canonization of Saint Pius X 
May 31, 1954

Laborem Exercens

By Rick Garnett

Read it lately?  Here it is!  St. Joseph, pray for us!

Prayer to Saint Joseph, Patron of Workers

Glorious Saint Joseph, you are the pattern of all who work. Obtain
for me, please, the grace to work conscientiously and to put devotion to duty
before my selfish inclinations. Help me to labor in thankfulness and joy, for it
is an honor to employ and to develop by my labor the gifts I have received from
almighty God. Grant that I may work in orderliness, peace, moderation and
patience without shrinking from weariness and difficulties. I offer my fatigue
and perplexities as reparation for sin. I shall work, above all, with a pure
intention and with detachment from self, having always before my eyes the hour
of death and the accounting which I must then render of time ill-spent, of
talents unemployed, of good undone, and of empty pride in success, which is so
fatal to the work of God. For Jesus through Mary, all in imitation of you, good
Saint Joseph. This shall be my motto in life and in death. Amen.

The Meaning of Reform in Things Catholic

By Robert John Araujo, SJ

 

Today, September 3 is Labor Day in the United States. In Milan on this same day, the church of that great city will bury its former archbishop Carlo Maria Cardinal Martini, S.J. who went home to God last week. He was a teacher and scholar of sacred scripture; in his later years he was nominated by Blessed John Paul II to serve as archbishop of Milan where he, Martini, was ordinary for twenty-two years. When he retired from that post in 2002, he spent much of his subsequent time at the Jerusalem house of the Pontifical Biblical Institute studying the word of God, which he lovingly taught for many years. During his appointment to the Milan archdiocese, he issued some nuanced views that challenged and possibly conflicted with Church teachings on several neuralgic issues.

A short while before he died, he gave his last interview in which the challenges he posed to others and the conflicts with Church teachings persisted. One theme from that interview which I find particularly intriguing, which has a bearing on all Catholics but especially those who shared the teaching profession with him, concerns the situation of the Church in the more prosperous regions of the world. Martini described the situation of the Church in Europe and in America as one of “weariness.” One of the reasons for the weariness according to him was the absence of caritas. He was not the sort of man who would identify a problem without offering a solution, and he proposed the need for conversion as one of the antidotes for this weariness. But here he pointed his finger at the Church’s leadership suggesting, amongst other things, that the understanding of human sexuality needs reconsideration; moreover, the use of the sacraments as a means of discipline rather than as acts of caritas is also in need of re-examination. While His Eminence may have offered some provocative thoughts for prayerful consideration, he limited his criticism on the source of the “weariness” to some members of the Church.

In this regard, I think he missed an important teaching opportunity. Why do I say this? He did not mention even once the existence of sin amongst all of God’s people. He did not discuss or mention sin at all in his interview nor did he raise the need to combat it by everyone. Is it not sin that permeates the human condition since no one is free from the temptations which are the source for the need for conversion? Has sin and the discussion of it gone out of fashion? Are only certain persons capable of doing the things which we used to acknowledge as sin? Even though he was a renowned Biblical scholar, had the cardinal forgotten the important lesson of the Gospel of Saint John, Chapter 8, that everyone is a sinner—not just some. That is why the need for conversion is universal and an ongoing life-long project for everyone. The cardinal used, in his interview, the Rahnerian image of the glowing embers being hidden by the ashes. By employing this image, his suggestion was that the ashes represent some in the Church (especially her leadership) who smother the embers of others who are the goodness and source of love. However, I think that he did not use this image to its best potential for each of us is a combination of ashes and embers—that is, each of us has committed, so each of us is also in need of conversion. As we are all sinners, each of us can and needs to muster the critical holy desire for conversion. We also possess the ability to recognize that the path to holiness is for us and for all others. If the cardinal had talked about this in his interview, I think he would have provided a better response to the weariness that not only affects the Church but all of human society.

So, you might ask, is there a counter-proposal to what Cardinal Martini had to say? I begin with his final comment to the interviewer which was, “What can you do for the Church.” Well, that’s a good question for anyone to address. It begins with a sound formation from which no person should escape or be permitted to escape. It is an education that is first and last premised on virtue and the life-long pursuit and cultivation of virtue. Virtue is an important and accessible counterpoint to sin and sinfulness. If sin comes from bad habits that go unattended, virtue comes from those good habits that are or should be a part of anyone’s education. Today’s education is saturated with the messages of self-esteem and empowerment. I suppose there is nothing wrong with that if education also includes other elements which primarily include the cultivation of the virtuous person. But if the essential virtue element is eliminated, where will the instruction of self-esteem and empowerment take any person? Does he or she know not sin because he or she does not know virtue? That seems to be the product of such an education which concentrates on the self, and the significance of caritas about which Cardinal Martini spoke so much will become all the more elusive.

 

RJA sj

 

Sunday, September 2, 2012

"Doing justice to another man's religion"

By Robert George

MoJ friend Francis Beckwith of Baylor University recently reprimanded a Facebook friend for sending him a secretly made video of a Mormon temple service.  Professor Beckwith rightly described this violation of trust and act of disrespect for others as shameful. People of different faiths can, without compromising their own beliefs, treat people of other faiths with respect.
We do this "negatively," as it were, by, for example, refraining from ridiculing beliefs, customs, or rituals of other faiths.  We do it "positively" by, for example, addressing clergy of other faiths in the manner that is customary or prescribed within those faiths. So, for example, Protestants, Jews, Muslims, and others address Catholic and Eastern Orthodox clergy as "Father."  Christians and others address Jewish clergy as "Rabbi" and Muslim teachers of certain traditions as "Shaykh" (and Muslim clergy of certain traditions as "Imam"). Another way we do it positively is by facilitating each other's religious observances when we can.  For example, Jewish workers will sometimes offer to substitute for Christian co-workers on Christian holy days, and vice-versa. I myself and many other professors who are not Jewish make special arrangements for our Jewish students to make up classes they have to miss in order to observe the fall holidays of Rosh Hashanah and Yom Kippur when they fall on weekdays.
G.K. Chesterton, in chastising a liberal magazine for its criticisms of a Jewish industrialist who in his will had left money to his children conditional upon their maintaining the Jewish faith, put the point this way: "As an old-fashioned radical, I was brought up in the tradition of doing justice to a another man's religion.  But it is only his irreligion you moderns are disposed to respect."  Let's not be like those whom Chesterton described as "you moderns."  This is one point on which all of us should, I believe, be "old-fashioned radicals."
 

The legal form of thought

By Patrick McKinley Brennan

It's never too early to pre-order Legal Affinities: Studies in the Legal Form of Thought, which I co-edited with H. Jefferson Powell and Jack Sammons.   My Introduction to the volume is here.  The chapters of the book are inspired by -- and celebrate -- the work, spanning forty years, of University of Michigan law professor Joseph Vining.  As Mary Ann Glendon once wrote, "Joseph Vining finds surprising treasures hidden in lawyers' ways of knowing. . . .  He challenges with equal vigor the widely held notions that law can be reduced to processes and rules, or to power relations, or to meaningless signs and marks." Jurisprudence, administrative law, animal law, constitutional law, music, theology, St. Augustine, Judge Noonan in action -- they're all to be found, along with a whole lot more, in this volume.    

Saturday, September 1, 2012

Cardinal Dolan at the Democratic National Convention

By Robert George

Some Catholics are disturbed that Cardinal Timothy Dolan, the Archbishop of New York, will be delivering a benediction at a convention at which speaker after speaker will vehemently condemn belief in the right to life of the child in the womb and belief in marriage as the conjugal union of husband and wife. Obviously, this is a matter of prudential judgment, and I certainly understand (and share) the concern. The Cardinal's appearance could be interpreted as implying that the positions on abortion and marriage embraced by the Democratic Party and the Obama administration are acceptable from a Catholic vantange point. I think it is important, though, to recognize the considerations on the other side, too. Many people on the left, including many who will be attending the Democratic convention, have been working overtime to establish the proposition that the Catholic Church and other supporters of the pro-life position are "misogynists" who are conducting a "war on women," and anyone who believes in marriage as a conjugal union is a "bigot." The Cardinal's appearance at the convention confounds their efforts. By prominently featuring an outspoken leader of the the right to life cause and the fight against redefining marriage, the Democrats concede that these positions are not mere reflections of "animus" and cannot legitimately be treated as "bigotry."  After all, would the Obama administration and the leaders of the Democratic Party feature a "hater" at their convention?  Would they invite a "homophobe" and a "bigot" to invoke divine blessing on their political exertions?

Friday, August 31, 2012

Deanship Finalists at St. Thomas

By Thomas Berg

I'm very pleased to share this announcement of the four distinguished finalist candidates for the deanship at St. Thomas--in order of their upcoming visits to campus:

  • Patrick J. Borchers, Vice President for Academic Affairs and Professor of Law, Creighton University (former Dean, Creighton Law School)
  • Robert K. Vischer, Associate Dean for Academic Affairs and Professor of Law, University of St. Thomas School of Law (Minnesota)
  • Ruth Okediji, William L. Prosser Professor of Law, University of Minnesota (director and founder, Intellectual Property and Development Program)
  • David S. Caudill, Arthur M. Goldberg Family Chair and Professor of Law, Villanova University School of Law

The announcement has brief summaries of just some of their academic and leadership credentials.  Campus interviews will happen in September.  We appreciate your prayers for this important decision in the life and mission of our school.

Tom

Thursday, August 30, 2012

This is me, not blogging about the conventions and election

By Rick Garnett

The Republicans are holding their convention, and the Democrats soon will.  In November, there will be an election. 

My reactions to and thoughts about these conventions, and this election, are shaped (I hope!) by my ongoing, work-in-progress effort to understand and live out better the call, challenge, and promise of the Gospel.  In my view, given all the givens, at this particular time, the common good of all -- that is, the "sum total of social conditions which allow people, either as groups or as individuals, to reach their fulfillment more fully and more easily", conditions which include, inter alia, the rule of law, religious liberty, a sustainable economy, and a thriving civil society -- will be better (not perfectly, but better) served if Gov. Romney is elected (and so appoints federal judges, fills upper-level administrative positions, takes the lead in proposing a legislative agenda, "executes the laws", and so on), and if Republicans have a majority in the Senate, than if President Obama is re-elected, and the Democrats retain their majority in the Senate. 

A whole lot of Catholic (and other) bloggers, writers, commentators, and public intellectuals will be, in great detail, arguing that this conclusion of mine is wrong, or explaining why this conclusion is right, in a wide variety of venues and outlets.  I hate to miss out on the increased blog-traffic that usually comes with election season, but -- not out of disingenuous false modesty, and certainly not because I'm somehow serenely "above politics" -- I'm inclined to try to not say much more about or in defense it (i.e., this conclusion) here.  The engaged and thoughtful people who read, or come across, this blog have probably reached their own conclusions, and are comfortable with them.  Some will prioritize (a horrible word!) the issues that I tend to -- school choice, religious freedom, pluralism in the non-state sector, the selection of federal judges, abortion regulation -- and some will emphasize others (which I certainly agree are important).

The "Catholic Legal Theory" project -- the Mirror of Justice project -- is about more than answering the "for whom should we vote? and "which policies should we enact and enforce?" questions (thought these are, obviously, crucially important questions).  It is also, and maybe more fundamentally, about the implications for the legal enterprise, and our understanding of what "law" is and is for, of the Christian proposition that every person is created, sustained, loved, and saved by God.

As I wrote in my first MOJ post (in February 2004):

One of our shared goals for this blog is to . . . "discover[] how our Catholic perspective can inform our understanding of the law."  One line of inquiry that, in my view, is particularly promising -- and one that I know several of my colleagues have written and thought about -- involves working through the implications for legal questions of a Catholic "moral anthropology."  By "moral anthropology," I mean an account of what it is about the human person that does the work in moral arguments about what we ought or ought not to do and about how we ought or ought not to be treated; I mean, in Pope John Paul II's words, the “moral truth about the human person." 

The Psalmist asked, "Lord, what is man . . . that thou makest account of him?” (Ps. 143:3).  This is not only a prayer, but a starting point for jurisprudential reflection.  All moral problems are anthropological problems, because moral arguments are built, for the most part, on anthropological presuppositions.  That is, as Professor Elshtain has put it, our attempts at moral judgment tend to reflect our “foundational assumptions about what it means to be human."  Jean Bethke Elshtain, The Dignity of the Human Person and the Idea of Human Rights: Four Inquiries, 14 JOURNAL OF LAW AND RELIGION 53, 53 (1999-2000). . .

In one article of mine, "Christian Witness, Moral Anthropology, and the Death Penalty," here, I explore the implications for the death penalty of a Catholic anthropology, one that emphasizes our "creaturehood" more than, say, our "autonomy."  And, my friend Steve Smith (University of San Diego) has an paper out that discusses what a "person as believer" anthropology might mean for our freedom-of-religion jurisprudence  that fleshes out excellent article.  I wonder if any of my colleagues have any thoughts on these matters?

Of course . . . who am I kidding?  It's only a matter of time before a "Real Catholics love teacher-unions" or "President Obama is the pro-life candidate" post or piece will pull me back in, right?  [Insert smiley-face emoticon here].

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