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.

Saturday, December 10, 2011

Great Britain's Stand for Subsidiarity

By Michael Moreland

I've noted before that many of the founders of the European Union were steeped in Catholic social thought (even borrowing the concept of subsidiarity from CST and making it into a constitutional norm in the EU), and the Vatican has long been an advocate of European integration. But the lack of an intelligible and enforceable principle of subsidiarity in the EU has resulted in ever-increasing bureaucratic centralization in Brussels and Strasbourg over the past several years, a trend that Britain has now called into question with Prime Minister David Cameron's veto of a proposed EU treaty. While Cameron probably hasn't discovered a newfound enthusiasm for Pius XI and was acting to protect British economic interests, Niall Ferguson argues here that Cameron made the right decision: 

So it is not that British policy has dramatically changed. The real historical turn is the one now being taken by the 17 euro zone members and the six non-euro states that have chosen to follow them. For there should be no doubt in anyone’s mind that what they have just agreed to do is to create a federal fiscal union. Moreover, it is a fundamentally flawed one. The only surprising thing is that so few other non-euro countries—Sweden, maybe the Czechs and Hungarians—have joined Britain in expressing reservations. I quite see why countries with the euro are prepared to give up their fiscal independence to avert a currency collapse. But what on earth is in this for the others?

....

“Eurozone Deal Leaves Britain Isolated” trumpets the Financial Times, for many years an ardent proponent of monetary union. But if David Cameron can succeed in isolating Britain from the disaster that is unfolding on the continent, he deserves only our praise. For once the old joke—“Fog in the Channel: Continent Cut Off”—seems applicable. There is now a Depression on the other side of the channel, and it is indeed the continent that is cutting itself off—from sane economic policies.

Karl Barth, the Constantinian Illusion, and Christian Hope

By Michael Moreland

The great Swiss Reformed theologian Karl Barth died on this date in 1968, so here's a mighty passage from the Church Dogmatics to serve as a tonic for ecclesial, political, economic, or academic despair:
 
What is hope, and what does it mean for the Christian who, since Jesus Christ has not yet spoken His universal, generally perceptible and conclusive Word, finds himself in that dwindling and almost hopeless minority as His witness to the rest of the world? If the great Constantinian illusion is now being shattered, the question becomes the more insistent, though it has always been felt by astute Christians. What can a few Christians or a pathetic group like the Christian community really accomplish with their scattered witness to Jesus Christ? What do they really imagine or expect to accomplish in the great market, on the battlefield or in the great prison or madhouse which human life always seems to be? "Who hath believed our report?  and to whom is the arm of the Lord revealed?" (Isaiah 53:1). And what are we to say concerning the countless multitudes who either ante or post Christum natum have had no opportunity to hear this witness? The Christian is merely burying his head in the sand if he is not disturbed by these questions and does not find his whole ministry of witness challenged by them. He buries it even more deeply if in order to escape them, forgetting that he can be a Christian at all only as a witness of Jesus Christ, he tries to retreat into his own faith and love or that of his fellow Christians. Nor is there any sense in trying to leap over this barrier with the confident bearing of a Christian world conqueror. The meaningful thing which he is permitted and commanded and liberated to do in face of it is as a Christian, and therefore unambiguously and unfalteringly, to hope, that is, in the face of what seems by human reckoning to be an unreachable majority to count upon it quite unconditionally that Jesus Christ has risen for each and every one of this majority too; that His Word as the Word of reconciliation enacted in Him is spoken for them as it is spoken personally and quite undeservedly for him; that in Him all were and are objectively intended and addressed whether or not they have heard or will hear it in the course of history and prior to its end and goal; that the same Holy Spirit who has been incomprehensibly strong enough to enlighten his own dark heart will perhaps one day find a little less trouble with them; and decisively that when the day of the coming of Jesus Christ in consummating revelation does at last dawn it will quite definitely be that day when not he himself, but the One whom he expects as a Christian, will know how to reach them, so that the quick and the dead, those who came and went both ante and post Christum, will hear His voice, whatever its signification for them (John 5:25). This is what Christian hope means before that insurmountable barrier. This is what the Christian hopes for in face of the puzzle which it presents. But the Christian has not merely to hope. He has really to show that he is a man who is liberated and summoned, as to faith and love, so also to hope. And if he really hopes as he can and should as a Christian, he will not let his hands fall and simply wait in idleness for what God will finally do, neglecting his witness to Christ. On the contrary, strengthened and encouraged by the thought of what God will finally do, he will take up his ministry on this side of the frontier. He will thus not allow himself to be disturbed by the questions of minorities or majorities, of success or failure, of the probable or more likely improbable progress of Christianity in the world. As a witness of Jesus Christ, he will simply do - and no more is required, though this is indeed required - that which he can do to proclaim the Gospel in his own age and place and circle, doing it with humility and good temper, but also with the resoluteness which corresponds to the great certainty of his hope in Jesus Christ.
 
Karl Barth, Church Dogmatics , IV/3, §73

Hot Topics: Cool Talk -- Balancing the Budget with Sisk and Tinucci

By Elizabeth Schiltz

There's little that makes me prouder (professionally, at least) than watching one of my faculty colleauges do a great job with a presentation-- except maybe watching one of my former students do a great job with a presentation.  I had the pleasure of experiencing both yesterday, as MOJ-er Greg Sisk and former UST law student Katharine Tinucci (now press secretary to Minnesota's Governor Mark Dayton) gave their contrasting perspectives on how Catholic social teachings inform discussions on the budget, as part of the Murphy Institute's "Hot Topics: Cool Talk" series.  Katharine focused on the state budget, urged us to view our responsibility for intergenerational solidarity from the perspective of our duty to fund the education of the next generation, and quoted our Archbishop.  Greg focused on the federal budget, urged us to view our responsibility for intergenerational solidarity from the perspective of our duty to reduce the national debt burden, and quoted our Pope and his predecessor.  What fun!  You can watch their talk (and see their accompanying slide shows -- Greg's characteristically thorough and informative) on line here.

Call for papers: Religious Traditions and Business Behavior

By Elizabeth Schiltz

Here's an interesting call for papers:

The Center for Financial Policy at the University of Maryland's Robert H. Smith School of Business announces a Call for Papers and Proposals for the Henry Kaufman Conference on Religious Traditions and Business Behavior. 

This conference explores two central questions in the relationship between the world’s major religious traditions and the business behavior of adherents to those traditions: 

First, what do the world’s major organized religious traditions – Protestantism, Catholicism, Islam, Hinduism, Buddhism, Judaism – proscribe about business and financial ethics and behavior?

Second, how and why have business and financial actors seriously compromised the leading religious traditions of their cultures?

By interrogating these two core questions, the conference will yield insights valuable to contemporary business and religious leaders about abiding questions such as:  Do the scriptures and doctrines of these religions appear to have had a marked effect on financial behavior?  Does religion appear to be a more potent or less potent influence than business ethics courses in fostering sound, ethical, and socially responsible financial behavior?  How can religion best be promulgated to make financial behavior more sound, ethical, and socially responsible?

The conference will be in Spring 2013, with two preliminary meetings of speakers before then.  Proposals are due Feb. 1, 2012.

Friday, December 9, 2011

By John M. Breen

 

The 2012 Conference
on Christian Legal Thought

I am pleased to announce that the 2012 Conference on Christian Legal Thought, co-sponsored by the Law Professors Christian Fellowship and the Lumen Christi Institute will take place on Saturday, January 7, 2012, at the University Club in Washington, D.C.

This year the conference panels will address a variety topics including the role of public unions and the state of organized labor, legal pedagogy, free speech and moral discourse, and the vocation of Christian lawyers and law teachers.  Speakers for the event include David Gregory (St. John’s), Thomas Kohler (Boston College), Susan Stabile (Univ. St. Thomas), Deanell Reece Tacha (Pepperdine), Eric Claeys (George Mason), Mary Leary (Catholic U.), Michael McConnell (Stanford), Paul Salamanca (Kentucky), and Kent Syverud (Wash. U.).

As in the past, this event promises to be a wonderful occasion for both scholarly engagement and fellowship.  Academics and legal professionals interested in exploring the connection between the law and the Christian intellectual tradition are welcome to attend.  You can register for the conference online here. 

The First Amendment and Crisis Pregnancy Centers

By Steve Shiffrin

Crisis pregnancy centers across the country offer birth counseling and sometimes services, but not abortion counseling or services. Unfortunately, pregnant women are drawn to these centers on the misleading assumption that abortion counseling is available. Various jurisdictions in the United States have fashioned laws designed to combat the deception perpetrated by these centers.

Baltimore, for example, (see here) requires that such centers put signs in their waiting rooms revealing that they do not offer abortion counseling or services. Incredibly, a federal district court has declared the law to violate free speech. The court thinks that the speech of the clinic is not commercial advertising and that it is more like political speech. To be sure, government cannot dictate the content of political speech. But it has long been the case that government has regulated counseling. Indeed, many counselors are properly subject to the prior restraint of licensing. In the area of health advice, there is no First Amendment right to deceive.  

San Francisco (see here) is taking a different approach from Baltimore. It forbids crisis pregnancy centers from engaging in false advertising, specifically from making the false and misleading claim that they provide abortion counseling when they do not. The First Amendment challenge to this approach is that it is underinclusive. The argument is that crisis pregnancy centers are being singled out for special treatment. Instead, it would be better to outlaw deceptive advertising by anyone. This argument has some appeal, but it is ultimately unavailing. Speaking for a Court majority in RAV v. St. Paul, Justice Scalia said that government may outlaw commercial speech in one context, but not another because the risk of deception in its view is greater there. That seems to be exactly what San Francisco has done.

The courts deciding these cases have focused on the free speech clause, but the plaintiffs have put forward a freedom of religion argument that I think is embarrassing. In some of the cases where clinics are forced by law to reveal the true content of their services, the plaintiffs complain that the compulsion violates their freedom of religion. I understand that the plaintiffs are opposed to providing abortion services on religious grounds, and I believe they have a First Amendment right not to do so. I find it hard to believe that they are really religiously opposed to publicly announcing their religious views about abortion in their waiting rooms, let alone being religiously opposed to revealing what their services are. Perhaps, however, their claim is that they have a religious right to deceive women (could they kidnap them, if necessary?), so that they not have abortions. I think this is dubious theology, but I know it is a preposterous legal claim. I doubt we will hear much about the religious argument in these cases, but the free speech arguments will be wrestled with in many of the appellate courts.

cross-posted at religiousleftlaw.com

Paulsen on "The Most Important Religious Liberty Case of the Past Thirty Years

By Rick Garnett

My friend Mike Paulsen makes a powerful case, here, at Public Discourse, for the high-importance of the Court's 1981 Widmar decision.  As he points out, Widmar formed the basis for the Court's repeated rejection -- between 1981 and the Court's Zelman decision -- of the claim that the Establishment Clause generally requires discrimination against private religious speakers, speech, and activity:

Widmar thus broke the Establishment Clause logjam that had become a barrier to true religious freedom. The former skewed thinking--that separation required discrimination--began to give way. Much as Brown v. Board of Education had broken the back of separate-but-equal state racial segregation a generation earlier, Widmar broke the back of separate-and-unequal official religious discrimination. . . .

. . . Despite exceptions and odd departures, Widmar states the bedrock rules: The Free Speech Clause forbids government from excluding or discriminating against private parties' religious expression because of its religious content. The Establishment Clause does not authorize or justify such discrimination, ever. Where government has provided a program or a benefit on a general basis, it may not exclude religious persons or groups on the basis of their religious expression or identity. It is hard to think of a better, more succinct statement of the essentials of religious freedom.

Koritansky ed., "The Philosophy of Punishment and the History of Political Thought"

By Marc DeGirolami

Thanks to Michael White, I am pleased to post about another superb-looking book about the intellectualProductImageHandler  history of punishment edited by Peter Karl Koritansky and with contributions by Professor White, among others.  The book is The Philosophy of Punishment and the History of Political Thought (U. Missouri Press 2011).  Professor Koritansky's fine volume on Aquinas's thought about punishment is noted here.  Here is the description of the edited volume.

What does the institution of punishment look like in an ideal political system? Is punishment merely an exercise of violence of the strong against the weak? And what does the phenomenon of revealed religion add to the understanding of punishment? These are some of the many questions contemplated in The Philosophy of Punishment and the History of Political Thought, which provides a provocative exploration of the contributions of nine major thinkers and traditions regarding the question of punitive justice.
For the last half century, the philosophical debates over punishment have been deadlocked at two schools of thought: Utilitarianism and Retributivism. In his introduction, Koritansky provides an overview of the stymied debate by analyzing H. L. A. Hart’s argument for a philosophy unifying the theories of Utilitarianism and Retributivism. While Koritansky allows that both theories have contributed substantially to the contemporary understanding of punishment, he points out that Hart’s lack of success in combining these theories proves that both are less than ideal. From this starting point, Koritansky urges transcendence from these two theories in order to respond to new developments and circumstances surrounding the enactment of punishment today.
Conveniently divided into three sections, the book explores pagan and Christian premodern thought; early modern thought, culminating in chapters on Kant and classic Utilitarianism; and postmodern thought as exemplified in the theories of Nietzsche and Foucault. In all, the essays probe the work of Plato, Saint Augustine, Saint Thomas Aquinas, Thomas Hobbes, Immanuel Kant, Cesere Beccaria, Jeremy Bentham, John Stuart Mill, Friedrich Nietzsche, and Michel Foucault.
These essays devoted to the philosophy of punishment from the perspective of political thought delve deep into key contributions from thinkers of all eras to help further debates on punishment, provide the history of political thought in order to trace changes and effects on future theories, as well as expose the roots of the two prevailing schools of thought. This collection will engage all social scientists interested in the issue of punishment and energize the ongoing debate surrounding this complex issue.

Thursday, December 8, 2011

The Rapprochement of Religion and Technology

By Marc DeGirolami

Pope Benedict XVI turning on a Christmas tree of lights with his Sony Tablet.

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John Henry Newman and Mormons (again)

By Elizabeth Schiltz

Once again, a Mormon law professor is making me think about John Henry Newman.  The Chronicle of Higher Education’s “Brainstorm” blog has an exchange between one of their bloggers, Michael Ruse, director of the program in history and philosophy of science at Florida State University, and Nate Oman, law professor at William & Mary Law School.   Oman, a Mormon, is responding to an earlier post by Michael Ruse, in which he explains why he would have a hard time voting for a Mormon.   This is how Oman characterizatizes Ruse’s argument; it strikes me as pretty fair:

“While I can tolerate the religious beliefs of others and in some cases may even be able to sympathize with them, I find Mormon beliefs and Mormon history so strange that I believe the mere fact of belief on the part of a Latter-day Saint reveals some basic character flaw or intellectual disability, a failing that legitimately would count as a reason for voting against someone for public office.”

Oman's response is fascinating.  It reminds me of the final chapter of Newman’s Apologia pro Vita Sua, in which Newman responds to the general accusation against the Catholic faith current in England of the time – that it is not a rational belief system, but rather a set of superstitious beliefs imposed upon people of weak will and intellect by a clergy with no respect for truth.  A person who accepts claim that she cannot question certain teachings by the Church is susceptible to being misled on any matter about which the Church chooses to profess an opinion.  Such a person has forfeited the right to be considered a rational person who thinks for himself.  The last chapter of the Apologia consists of Newman's attempt to demonstrate why it is rational for a person to accept the authority of the Church on certain matters.

            Oman’s post is just the same sort of endeavor.  Some teasers:

.  . . .  if you are using belief in Mormonism as a proxy for a lack of critical or analytic abilities, fanatical mendacity, or the like, then you do not have to rely on the proxy. You can simply try to observe the primary phenomenon that you are interested in. What you will find is that there are many Latter-day Saints who in fact engage with the world critically and are not pursuing brutal or illiberal theocratic political agendas. To be sure, you will find some Mormons who are stupid, dogmatic, ignorant, and politically reactionary. You may even find that the distribution between the two groups in the Mormon population is different than the population as a whole, but so long as the primary phenomenon is itself observable, there is no need to rely on the proxy of belief in Mormonism to determine whether any particular Latter-day Saint suffers from critical or moral deficits.

This doesn’t imply, of course, that one cannot regard Mormonism as false and Mormon believers as mistaken. On the other hand, the mere fact of holding false beliefs is generally not taken as evidence of intellectual or moral failure. Lots of smart, thoughtful, critical, and morally decent people hold mistaken beliefs. Indeed, I suspect that they all do. The question then remains as to whether the mistaken belief represented by Mormonism is somehow different. It could be different in one of two ways. First, it might be that the mistake represented by Mormonism is qualitatively different in some way such that it really does provide some important piece of information about a person’s critical and moral apparatus. Second, it may be that given that one can identify believing Mormons who nevertheless display critical and moral competence, the persistence of their belief in Mormonism is itself sufficiently surprising—considering the “weirdness” of Mormon beliefs—to be a phenomenon demanding an explanation.

The post is really worth reading in its entirety.

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