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, November 1, 2011

Shadow Work

Following on last week's kerfuffle over the Note on Financial Reform from the Pontifical Council for Justice and Peace, I thought this piece by Craig Lambert from Sunday's New York Times points toward a way of thinking about the economy in the spirit of Rerum Novarum and the other major social encyclicals:

To be sure, shadow work has its benefits. Bagging one’s own groceries or pumping one’s own gas can save time. Shadow work can increase autonomy and enlarge our repertoire of skills and knowledge. Research on the “Ikea effect,” named for the Swedish furniture manufacturer whose products often require home assembly, indicates that customers value a product more highly when they play a role in constructing it.

Still, doctors routinely observe that one of the most common complaints today is fatigue; a 2007 study pegged its prevalence in the American work force at 38 percent. This should not be surprising. Much of this fatigue may result from the steady, surreptitious accumulation of shadow work in modern life. People are simply doing a huge number of tasks that were once done for them by others.

Doing things for one another is, in fact, an essential characteristic of a human community. Various mundane jobs were once spread around among us, and performing such small services for one another was even an aspect of civility. Those days are over. The robots are in charge now, pushing a thousand routine tasks onto each of our backs.

Perhaps the Church's contribution to debates over the economy shouldn't be so much to give conventional answers and provide authoritative arguments for politicians from the right or left but instead to urge a fundamental rethinking about the hollowing out of our economic life. The concern about the demands and fatigue of shadow work seems promising in that regard, and not surprisingly so--Lambert borrows the concept of "shadow work" from Ivan Illich, the wildly eccentric former Catholic priest and quasi-hero of Charles Taylor's A Secular Age.

A very scary Halloween sight

Halloween is very big in our neighborhood -- tons of kids running around, most houses decorated, many families sitting out in their front yards enjoying some fellowship.  A really festive, child-centered evening every year.  Added to the mix last night was an organized, house-to-house fundraising effort by a whole group of NARAL/Pro-Choice America representatives.  It was mind-boggling.  A whole pack of young children, dressed up and laughing, holding their bags out for candy, and literally into their midst a grown-up walks up with a clipboard and asks for support to help defend abortion rights.  At first I was offended, and then I decided that perhaps this was the best of all nights for them to be making their case to the public.  They should be speaking from the midst of children, rather than from a brochure or conference podium -- it was a powerful reminder of what's at stake.

A Question for MacIntyre Mavens

Here's a question some buddies and I have been throwing around that I thought the learned readership here might know something about.  I know that Alasdair MacIntyre's critical thesis in After Virtue has found some applications for and in law.  That is, MacIntyre's diagnosis of the unintelligibility and interminability of moral discourse not as proof that non-cognitivists are right but instead as evidence that we have lost the teleological foundations that made moral discourse and the ideas of true and false possible in the first place, the incapacity of rationalism to replace that Aristotelian foundation, and the resultant contemporary emotivism -- some or all of this has found applications of one sort or another in legal academic writing with which I am familiar.  Some of Steve Smith's writing draws on the critical thesis in MacIntyre, for example.

What I am not sure about is whether the more positive thesis of After Virtue about social practices, goods internal to those practices, the contextualism of those goods and their intelligibility only within social practices, the mutability of the goods as the practices/traditions evolve, and the practices/traditions as sites within which the virtues are displayed -- has anyone written about the law as such a social practice/tradition?  Has anyone developed the contextual, situated social practice/tradition thesis in MacIntyre as an account of law?

Monday, October 31, 2011

Camosy on Singer, personhood, and Christianity

Prof. Charles Camosy, who blogs at Catholic Moral Theology (link), has a piece in the latest Commonweal on the "evolution" of Peter Singer.  He writes, "[C]an Christian ethicists talk with Peter Singer—and can he talk with them? Are they even intelligible to one another?  The answer, it turns out, is yes."  Later in the piece, Camosy adds:

Until recently, Singer’s theory would have forced him to describe persons as merely self-aware bundles of contingent preferences, but his recent shift [RG: described in the essay] creates new space for models of personhood that are compatible with Christian ethics. According to one such model, persons are kinds of things that persist over time, require objective goods to have a happy and meaningful life, and are defined in morally significant ways by their relationships with parents, friends, spouses, and children. If Singer could accept that definition of personhood, or even just part of it, much of his disagreement with Christian ethics would disappear.

In my experience, Charlie is admirably eager to see the good, and the potential for good, in others' views.  I have to say, though, that I think the "if" in that last sentence is a big one.  It sounds a *bit*, as one friend of mine put it, like "If Singer could accept Christian moral anthropology -- which he does not and cannot -- then his disagreement with Christian ethics would disappear."  But I think Singer's account of "speciesism" (which Camosy describes) is not reconcilable with the definition of "personhood" on which Christian ethics is built.

Thoughts?  Note:  Peter Singer's views on many issues are, in my view, horrifying.  There's no need to observe, in the comments, that he has very very wrong views on some important questions.  Let's stipulate that he does, and ask, first, whether Prof. Camosy is right when he says that "[t]he recent shifts in Singer’s thinking suggest that he and Christians may soon have more fruitful ways to talk about their disagreements.  Meanwhile, there is already enough practical agreement for Christians and Singer’s followers to work together on problems that cannot wait until every theoretical question is settled."  Next, let's ask whether, actually, cooperation with "Singer's followers" actually does have to wait until that cooperation no longer requires Christians to put aside the non-trivial matter that Singer's followers believe that severely disabled neo-nates, whose care is expensive, may (should?) be killed.  On the one hand, of course Christians can and should cooperate for shared ends with people who are not Christians.  But, are there limits?  I'm not sure . . .

Are American law schools short-changing "reproductive rights" law?

There is a lot of (welcome and appropriate) interest in the question whether law schools' curricula are sufficiently comprehensive and doing enough to prepare law students to understand the legal enterprise and practice law in the 21st century.  This essay, at Slate, suggests that law schools, among other things, "aren’t doing enough to educate future policymakers about reproductive rights issues."  This is true, though probably not in the way that the author believes.

Sunday, October 30, 2011

Accuracy in reporting...

 

The New York Times today reports:

Storm Leaves More Than 2 Million Without Power

But the truth of the matter is that they are really without something else, for the details of the report further state: “At least 2.3 million people across the Northeast found themselves without electricity after an unusual autumn storm dumped record amounts of snow.”

So, it’s electricity, not power, without which they find themselves. Let us pray for the restoration of their electricity. As for their power, well, that seems to be still within their grasp.

 

RJA sj

The Conclusion of the Conferences on “More than a Monologue

 

Earlier this semester, I did a second post [HERE] on the joint Fordham-Fairfield-Union Theological-Yale Divinity joint conference entitled “More than a Monologue.” As contributors to and readers of the Mirror of Justice may recall from the postings presented by several MOJ contributors on “More than a Monologue”, the conference was self-billed as “an unprecedented collaboration” designed “to change the conversation about sexual diversity and the Catholic Church.” Several of us wondered if the “change” mentioned was limited to “conversation.” Would it also include altering the attitudes of the public, including the faithful and modifying the teachings of the Church?

The Archbishop of New York (the see in which Fordham University is located) and the Bishop of Bridgeport (the see in which Fairfield University is located) expressed concerns about conference. Moreover, the concerns of these bishops take on further significance considering their ecclesial responsibilities as successors to the Apostles in these venues. On September 22 of this year, both ordinaries issued a joint statement announcing that they had each received “thoughtful expressions of concern from many of the faithful” regarding this four part series. They also stated that they had expressed these concerns as well as their own to the heads of Fordham and Fairfield. A major justification for the unease expressed focused on pre-conference publicity and advanced commentaries about the conference and the billed topics that were to be presented by the speakers. This publicity and these commentaries suggested the possibility of encouraging dissent from both Church teachings and the teaching authority of the Church. The ordinaries also mentioned that the presidents of Fairfield and Fordham indicated that they, the presidents, were aware of the concerns about “More than a Monologue” and brought them to the attention of the conference organizers. In due course, the presidents assured the ordinaries that, “while sensitive to the experience of the participants,” the presentations “will not be a vehicle for dissent.” One of the heads conveyed his confidence “that the Church’s teachings will be clearly stated and articulately defended” within a “spirit of dialogue that is proper to an academic setting.” It was further asserted that, “the strength of these teachings will be quite convincing, based as they are on revealed truth.”

As people of good will, these two bishops stated that with the assurances presented, we “must trust that the conference will turn out as intended: not as a criticism or questioning of the faith and morals of the Church, but as a sincere attempt to listen to those who are trying their best to believe and live it...”

Having participated in academic conferences where these and other neuralgic issues were discussed in the context of the Church’s teachings, I, too, would have hoped for the same outcome—i.e., discussion, learning, and an objective search for the truth of the matter considered within the context of respect for, cogent and reasoned explanation of, and adherence to the teachings of the Church. However, having listened to most of the presentations in archived broadcasts or during live streaming, I must respectfully disagree with the assertions made about the objectives of this conference by its organizers. It may well be that the ordinaries will, in due course, share views parallel to mine.

But the story does not end here.

The truth about this conference continues on several fronts. The first concentrates on the intentions of the conveners of and speakers at the conference. One principal speaker (who interestingly referred to my religious order that has some relationship with the Fairfield and Fordham as “the famously free-thinking Jesuit fathers”) contends that “the Catholic Church appears to be a community dramatically out of synch” with the topic of sexual diversity, and the Church’s work is affected by “a powerful political fear of moral contagion... Are bishops and Vatican officials afraid of moral relativism...?” Elsewhere, one of the organizers stated that the conferences will add “many more voices... to explore the implications of the Church’s teachings on homosexuality. Many people... would like to see the church [sic] change its teachings on homosexuality.” In this context, this organizer cited current surveys on support of same-sex marriage. While contending that surveys themselves do not mean that the Church “will bend to such a statistic,” they point to a “gap” between Church teachings and “the apparent convictions of Catholics.”

Regarding whether the Church will change its teachings, this same person said that one cannot predict this outcome but also stated that, “one should never say never.” Elsewhere, this same individual has displayed his support for same-sex marriage and alteration of Church teachings on marriage. In this context, this person also argues that for Church teachings to “change,” they will do so because of a “theological justification.” But what is a theological justification, you may ask? The organizer provides an answer: “Those who believe such a change can or should occur focus on Catholic understandings of the goodness of creation, which includes the goodness of all human beings as God made them.” I am sure that some of the worst offenders of the Church’s teachings—and those who have dismissed the logic and objectivity of her teachings as well as the soundness general principles of law designed to promote the common good—take comfort in this “theological justification.” After all, it will justify their conduct, too.

For this “theological justification” to take root, the same organizer contends that the Church’s teachings based on “the natural law” remains the “biggest obstacle” to the reform of “Catholic sexual ethics.” As this person further states, “So if the teachings on homosexuality are to change, that will probably have to be part of a larger change in the way the church understands sexuality, which would also have implications for other hot-button issues in Catholic teaching like premarital or extramarital sex, contraception, sterilization and so on. Right now, there is no sign that the church [sic] is ready to make such a momentous move. But that is no reason to delay having an honest, open conversation about sexual diversity and the Catholic Church.”

A second point about this conference involves the support for it. It is clear that four institutions provided space and other resources to host these four gatherings. This is backing indeed. But other resources were needed to host such an elaborate series requiring transportation, housing, and transmission of presentations. In this framework, a large grant of $100,000 was provided by the Arcus Foundation (something which Mr. Thomas Peters brought to public attention [HERE] a while back) to the Fairfield’s organizers “to expand the current discussion on homosexuality within the Roman Catholicism [by including] diverse opinions of progressive Catholic thought leaders and theologians.” Interestingly the grant was not designed to provide for other kinds of “Catholic thought leaders” such as bishops, orthodox theologians, officials of the USCCB, or officials of the Holy See to attend and participate in the conference.

By reviewing the website of the Arcus Foundation [HERE], it is clear that this organization (which advances “pressing social justice and conservation issues...to advance LGBT equality, as well as to conserve and protect the great apes”) has a coherent plan to change Catholic thought and teaching by providing grants to “promote the moral and civil equality of LGBT people”; “to create a cadre of Catholic lesbian, bisexual and transgender women and their allies that would assume a leadership role within the Catholic community on issues related to gender, sexuality, reproductive health, and other justice issues”; to promote “support of a collaborative strategic planning process focused on building a pro-LGBT movement within the Roman Catholic Church in the U.S.”; “to educate Maryland’s Catholic laity and lawmakers about marriage equality”; and, “to work with four leading Catholic LGBT organizations to conduct a messaging campaign and schedule interviews in the broadcast media that promote pro-LGBT messages in connection with Pope Benedict XVI’s visit to Washington, D.C. and New York City in April 2008.”

I now return once again to the statement of Archbishop Dolan and Bishop Lori and the representations given to them about the integrity of the conference. I must respectfully but vigorously disagree with those who contend that the Church’s teachings at these four conferences were “clearly stated and articulately defended.”

They were not.

Instead, these four renowned institutions have demonstrated a rejection of the objective reasoning that underpins not only Catholic thought and teaching but also sound human law on the matters discussed. In place of objective reason, they have in large part relied on the mystery passage of Planned Parenthood v. Casey to justify their interesting views on the nature and essence of human sexuality. I do not think I am alone in contending that this justification is not sound on legal or theological grounds.

 

RJA sj

Constitutional Pressure Points

Here's a series of events I found interesting.  This story reports that in 2006, the United States Conference of Catholic Bishops had been awarded a government contract for the provision of assistance to victims of human trafficking.  These contracts are awarded pursuant to the William Wilberforce Trafficking Victims Protection Act of 2000.  Earlier this October, the contract with the USCCB was not renewed by the government and it was awarded to three other non-profit organizations.  There is some speculation in the story that the reason the contract was not extended was the USCCB's unwillingness to refer victims to abortion providers or supply birth control, but the government did not explain its decision.

In related news, in 2009, the ACLU of Massachusetts filed a federal action in the District of Massachusetts against the federal government alleging that its decision to award this contract to the USCCB violated the Establishment Clause. 

Continue reading

Saturday, October 29, 2011

More on the Pope's recent Address to the Bundestag

Before expressing my respectful disagreement with some of the personal theological opinion Pope Benedict shared in his Address to the Bundestag on September 22, 2012, I would underscore the importance of the Holy Father's calling the German government and people back to the touchstone of the natural law.  The Pope is certainly correct that "[i]dea of natural law is today viewed as a specifically Catholic doctrine, not worth bringing into the discussion in a non-Catholic environment, so that one feels almost ashamed even to mention the term."  I am grateful for the Pope's reminder to the Germans -- and to all of us -- of the truth that "[m]an too has a nature that he must respect and that he cannot manipuate at will.  Man is not merely self-creating freedom.  Man does not create himself.  He is intellect and will, but he is also nature, and his will is rights ordered if he respects his nature, listens to it and accepts himself for who he is, as one who did not create himself. In this way, and in no other, is true human freedom fulfilled."   This language enjoys the clarity and precision we have come to expect from Ratzinger-Benedict, and while I would have preferred for the Pope to return to the natural law in his exposition of the conditions of human freedom, there is, in my view, nothing to quarrel with in the quoted language.  It reflects Catholic teaching about matters that are true not *just* for Catholics.

On the other hand, however, I have some serious questions about the *truth* of the following assertion made by the Pope in the same Address:  "Unlike other great religions, Christianity has never proposed a revealed law to the State and to society, that is to say a juridical order derived from revelation.  Instead, it has pointed to nature and reason as the true sources of law . . . ."  While I concede that the common English translation I have just quoted is not adequate to the (gramatically odd) German text

("Wie erkennt man, was recht ist? In der Geschichte sind Rechtsordnungen fast durchgehend religiös begründet worden: Vom Blick auf die Gottheit her wird entschieden, was unter Menschen rechtens ist.  Im Gegensatz zu anderen großen Religionen hat das Christentum dem Staat und der Gesellschaft nie ein Offenbarungsrecht, eine Rechtsordnung aus Offenbarung vorgegeben. Es hat stattdessen auf Natur und Vernunft als die wahren Rechtsquellen verwiesen – auf den Zusammenklang von objektiver und subjektiver Vernunft, der freilich das Gegründetsein beider Sphären in der schöpferischen Vernunft Gottes voraussetzt."), 

 

serious questions remain, at least for me.  Specifically, has the Church not *authoritatively* taught that Christ is king over all peoples and a giver of law that all those to whom it is promulgated must obey?  Here is what the Magisterium taught in Quas primas (1925):

"17. It would be a grave error, on the other hand, to say that Christ has no authority whatever in civil affairs, since, by virtue of the absolute empire over all creatures committed to him by the Father, all things are in his power. Nevertheless, during his life on earth he refrained from the exercise of such authority, and although he himself disdained to possess or to care for earthly goods, he did not, nor does he today, interfere with those who possess them. Non eripit mortalia qui regna dat caelestia.[27]

18. Thus the empire of our Redeemer embraces all men. To use the words of Our immortal predecessor, Pope Leo XIII: "His empire includes not only Catholic nations, not only baptized persons who, though of right belonging to the Church, have been led astray by error, or have been cut off from her by schism, but also all those who are outside the Christian faith; so that truly the whole of mankind is subject to the power of Jesus Christ."[28] Nor is there any difference in this matter between the individual and the family or the State; for all men, whether collectively or individually, are under the dominion of Christ. In him is the salvation of the individual, in him is the salvation of society."   

Prescinding from questions of theology and philososphy for now, I think it's demonstrably *historically* false that the Church has not "proposed a juridical order derived from revelation."  On the contrary, the Church has taught that the laws of civil society should be shaped in part by the divine positive law (e.g., the state's law of marriage should respect the Pauline privilege), recognizing, of course, that in countries where Catholics are not in the majority, this is not likely to happen.  

I do not discover in the teachings of the Second Vatican Council any language that undertakes to contradict the language I have quoted from Quas primas.

 

Friday, October 28, 2011

Three more days left to celebrate!

October is Down Syndrome Awareness Month!  Do yourself a favor and spend some time with a friend with Down Syndrome this weekend.

Congresswoman Cathy McMorris the lucky mom of a kid with Down Syndrome, is co-chair of the Congressional Down Syndrome Caucus.  Just this past Tuesday, they hosted a briefing on Down Syndrome research.  The event featured six leading researchers who discussed the unique biology of Down syndrome, the status of current research, and barriers to future research.  The panel also heard from two leaders of the Down syndrome community who discussed how today’s findings could improve their advocacy efforts.  You can watch most of the hearing here.