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.

Friday, October 28, 2011

David Luban and Human Dignity

Let me begin, in the spirit of the New Roman Missal, for an apology for "what I have failed to do"  -- namely post in a quite a while.  Here goes, "through my fault, through my fault, through my most grievous fault....."

OK, on to business.  The Terrence J. Murphy Institute for Catholic Thought, Law, and Public Policy just finished hosting Georgetown's David Luban for a two-day visit.  As part of our ongoing Human Dignity Lecture Series, Luban presented the draft of a new piece he's working on:  "The Dignifier and the Dignified:  Human Dignity from Autonomy To Relations."  It's a characteristically brilliant and engaging attempt to locate a common understanding of the concept of human dignity in the practices of those who fight for human rights, focusing not on some intrinsic human property, but instead in the relationship between the dignifier and the dignified.  In the tradition of this lecture series, Luban presented his work in a public lecture, followed the next morning by an interdisciplinary, inter-institutional seminar to explore the work more deeply.  Our seminar this morning was attended by faculty from UST's Catholic Studies, Philosophy, and Theology departments, as well as Law School faculty including MOJ'ers Tom Berg and Rob Vischer; Brian Bix from the University of Minnesota Law School, Marie Failinger from Hamline, and Russ Panier from William Mitchell.  We plan to publish all the papers in this series as a book, eventually, but in the meantime, for a bracingly non-natural law attempt to grapple with the concept of human dignity, I'd highly recommending contacting Luban for a draft (or better yet, convince him to come to your school to present it).

The Display of Catholic Images at The Catholic University of America

It is hard to know what to make of this story (h/t Professor Bainbridge).  What is most curious about it to me is the allegation by Professor Banzhaf that Muslims were compelled to "perform their prayers surrounded by symbols of Catholicism -- e.g., a wooden crucifix, paintings of Jesus, pictures of priests and theologians which many Muslim students find inappropriate."  Later in the story Banzhaf is quoted as saying that Muslim students have no choice but to pray "surrounded by pictures of Popes."

It seems to me that there are two issues: (1) are there rooms on the CUA campus which do not contain such images or items (and, I suppose, were students prevented from gathering to use them for prayer)?; and (2) is the reference to these items' "inappropriateness" one which is specifically limited to their inappropriateness as places of Muslim prayer, or is it a more general sense that displaying these images and items at CUA is inappropriate per se?

As to the first question, in my wonderful year at the law school at CUA, I can think off-hand of several rooms which did not display the complained-of images and items.  Indeed, I can even think of a few such rooms at the Salesian house near campus where I was lucky enough to sleep.  It does not seem to me that it would be difficult to find such a room on the CUA campus, though perhaps the claim is that the University willfully barred the students from access to these rooms.

As to the second question, I can understand that Muslims might not want to pray in a room bedecked with Catholic images.  On the other hand, if the claim is that these images are "inappropriate" for display tout court, I am not sympathetic to that claim.

UPDATE: Please see the letter by President Garvey linked to in the comments, which clears many things up, including the fact that it seems that not a single Muslim student has complained to the University.  Not one.  And see also the Banzhaf press release on this matter referenced by David Nickol.  As I've observed about Maureen Dowd's columns, this may be a case of mixing together a few too many utterly disparate animadversions.  

FURTHER UPDATE: It gets worse.  See also this story, which reports that no CUA student has complained to Banzhaf either, notwithstanding his ongoing attempts to solicit plaintiffs for the complaint.  Good grief.

Thursday, October 27, 2011

A Supranational Authority—a Catholic perspective

 

Since the Pontifical Council for Justice and Peace issued its Note on Financial Reform, Towards Reforming the International Financial and Monetary Systems in the Context of Global Public Policy (the Note), commentators, including members of the Mirror of Justice have expressed views or commented on others’ views about this text.

As the Note relies on the work of Blessed John XXIII in his encyclical Pacem in Terris, it might be instructive to consider side by side the treatment which Pope John and the Note give to supranational authority.

Both documents begin with the recognition that the common good has a key role in the welfare of the peoples of the nations and the world. Moreover, both texts acknowledge that it is the responsibility of any public authority to advance and sustain the common good of everyone. Moreover, both texts emphasize the importance that the public authority being advanced must be developed without compulsion but accepted by reasoned agreement. Imposition by force would suggest that the authority is promoted by the stronger over the weaker nations; thus, the skepticism that the authority would serve the interests of the stronger but not the weaker is understandable. However, there are several distinctions between the two texts that need to be acknowledged.

The first distinction is that Blessed John XXIII saw the public authority as one geared to advancing the common good that is clearly linked with the moral order. The Note does not mention this in the same fashion. Of course the Note could assume this by its reference to Pacem in Terris, but it would have been better to state this clearly so that there would be no ambiguity.

Second, it is clear that Blessed John XXIII spoke about a general kind of public authority having power, organization, and means that would be co-extensive with the problems—presumably any problem—threatening the universal common good. The public authority identified by the Note is more specialized in that it is geared to addressing those situations where free and stable markets promote the existence of efficient and effective monetary and financial systems.

Third, John XXIII was clear about the universality of the agreement that undergirds the establishment of the supranational authority. In short, no authority can exist without the consent of all nations. The Note is less clear on this point because it suggests that universality may not be required in that the consent need to establish the organization “should involve an ever greater number of countries that adhere with conviction, through a sincere dialogue that values the minority opinions rather than marginalizing them.” Monitoring the pulse of countries is important, but it seems that the supranational authority may come into existence without universal endorsement.

Others may have a different take on the existence or significance of these differences. In any case, it is important that both documents be carefully reviewed. A final common denominator they share is that, when promulgated, they caught the attention of many people of good will.

 

RJA sj

Augsburgian Interlude

In light of some of the discussions here and there with respect to the recent "note" and the call for a supranational Authority, here's a little historical mood music on the subject by Michael McConnell:

The idea of civil control over the Church was difficult to maintain during the days of a single universal Catholic Church with its headquarters in Rome.  Church-state relations in those days almost inevitably consisted of conflict and negotiation between two institutionally separate authorities: the Church in Rome and the civil power, usually the monarch, in various nations of Europe.  Neither could completely control the other.  With the outbreak of the Protestant Reformation, however, governmental power over each national church became more feasible.  Indeed, with the Peace of Augsburg in 1555, the principle that the prince had authority to determine the religion for his nation (“cuius regio, eius religio”) became a staple of international relations.

Michael W. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2191 (2003). [x-posted CLR Forum] 

Kessler on Stringfellow and "religious lawyering"

A student forwarded me a lovely essay on religious lawyering that was linked by Andrew Sullivan several days ago.  Written by a lawyer named Jeremy Kessler, it begins with an eye-opening turn of phrase: "[T]here is something cartoonish about turning the black-letter law-book into a springboard toward the Ultimate."  He examines the life and work of William Stringfellow, springboarding to the current "religious lawyering movement" that I and others on MoJ have written about.  He concludes:

Though Stringfellow would have applauded this emphasis on the richness of human relationship, he might have questioned the relative ease with which some religious lawyers propose to negotiate the competing sovereignties of God, the state, and the marketplace. Stringfellow was anxious enough about the conflict between biblical and earthly advocacy when representing poor tenants. The religious lawyer’s search for God’s blessing in most any legal arena—whether corporate boardroom or prosecutor’s office—is probably a more liberal one than Stringfellow’s demanding Christ could allow.

Despite their differences, both Stringfellow’s biblical advocate and today’s religious lawyer come into the legal world ready to obey the Word. Their struggle to reconcile faith with worldly practice is one thing. The struggle to hear the Word to begin with is quite another. It would have been great if I could have gotten the major soul-searching out of the way before entering law school. Although a legal education can serve the young crusader well, it is better at inducing spiritual crises than resolving them.

Steger on Occupy Wall Street

I've wondered aloud about how Catholics should respond to OWS versus the Tea Party.  One helpful snapshot for understanding the OWS "movement" is a short and (righteously) angry essay by my student, Phil Steger, that is posted over at my colleague Mark Osler's blog.  Though Phil's analysis is a bit over the top (in my view) on some points, I think he captures the deep frustration that underlies the protests.

More from Colombo on the PCJP's note on the financial crisis

Ron Colombo has another post on the PCJP's note on the financial crisis.  He includes a helpful summary of the note, along with this bottom line:

In its closing pages, the Note puts forth a series of policy suggestions - and these have grabbed headlines of late.  Unfortunately, this is also where the wheels fall off.

It starts with the call for "a world political authority" to address the global problems of peacce, security, arms control, human rights, migration, the environment, and, of course, the global economy.  This "Authority" ought to be vested with "structures and adequate, effective mechanisms equal to its mission and the expectations placed in it."

The Note then suggests the need to revisit the Bretton Woods agreement, the need for "a minimum, shared body of rules to manage the global financial market," an expansion of more nations into the G20, a central world bank, taxation on financial transactions, recapitization of banks with public funds, and segregation of "ordinary credit and Investment Banking."

The Note's drafters certainly don't suffer from a lack of ambition.

They do, however, suffer from a lack of serious engagement.  Love them or hate them, the policy prescriptions are basically rattled off, with little thought or discussion.  As such, when it comes to these prescriptions, the Note is not at all persuasive.  Indeed, it doesn't even attempt to persuade

So, if one wishes to critique the Note, there's little to actually engage with (at least when it comes to the policy prescriptions).  No new or compelling arguments are put forth explaining why its proposals ought to be followed.  It's almost as if the Note's authors believed these proposal were self-justifying.

Pretty strange in my humble opinion.  And whether one's favorably disposed to the policy suggestions or not, this is sadly a lost opportunity.  The PCJP could have made an authentic contribution to the debate.  It did not.  Instead, it merely endorsed a candidate - and attempted to dress its endorsement up as something more serious.

Wednesday, October 26, 2011

Koritansky's "Thomas Aquinas and the Philosophy of Punishment"

I am very excited to read this new book by Peter Karl Koritansky (University of Prince Edward Island), KOTAThomas Aquinas and the Philosophy of Punishment (CUA Press 2011).  My own view is that punishment theory and punishment policy might greatly benefit from a historical turn, rediscovering (or, often enough, discovering for the first time) the richness and depth of perspectives on punishment which have, for one reason or another, been forgotten in the historical firmament or perhaps even ignored altogether. 

Thomas Aquinas is neither forgotten nor ignored, but this is one of the only full-length book treatments of his thought about punishment of which I am aware, and it is certainly the only one which connects directly to the present debate about punishment theory and punishment practice today.  Cool. 

The publisher's description is after the jump. [x-posted CLR Forum]

Continue reading

Tuesday, October 25, 2011

Colombo on the PCJP

Hofstra law prof Ron Colombo will be addressing the Pontificial Council for Justice and Peace's note on the financial crisis over the coming days at The Conglomerate blog.  (See our earlier posts here and here.)  Here's an excerpt from Ron's opening post:

The Note, quite sadly, doesn't hold a candle to past pronouncements hailing from the Catholic Church on economic matters.  Its language often lacks clarity and precision.  It meanders and comes across disjointed at times.  It speaks in broad generalities - and rarely backs up its conclusory statements with either reasoning or authority.  It doesn't really offer insights that are particularly penetrating or even fresh.  In short, it comes across as a bit stale, and really doesn't pack much of a punch.  Compare the Note to Pope Leo XIII's inestimable encyclical Rerum Novarum, and you'll see what the Church is capable of.  Whether you agree with him or not, Pope Leo's encyclical is sharp, crisp, and impactful.  You know where he's coming from, where he's headed, and exactly why.

The "Note on Financial Reform"

Others have called attention to the Pontifical Council for Justice and Peace's "Note on Financial Reform."  (The Note is available here.)  The responses to and readings of the Note have been, I think, what one would have predicted:  Some are crowing that "the Vatican" has endorsed the demands and aims of the "Occupy Wall Street" participants, others are insisting that the Note is misguided Euro-talk and, in any event, carries little authority.  And so it goes.

There can be no doubt, I think, that it is entirely appropriate for the Church (or, in this case, for particular offices in Vatican City) to call attention to economic and social problems, to remind persons of good will of the content and foundations of Christian humanism, to challenge governments and persons alike to act in ways that are consistent with morality and the truth about the human person, and to share well-considered judgments or suggestions regarding sound policy.  It also seems clear -- with respect to this business about "supranational authorities" -- that the post-Westphalian set-up is not an article of faith (even if a commitment to the rule of law and the requirement that secular authority democratic have legitimacy should be).

That said, and at the risk of being accused by some friends in the left-of-center sectors of the Catholic blogosphere of "ranting" or being a "neo-con", I'll confess that I think (a) many are (perhaps strategically and tactically) mis- and over-reading the Note in order to overstate the consonance between its vision and the current policies of the Democratic Party in the United States and its special-interest constituencies; (b) many are making the mistake that was widely made with respect to the Pope's Caritas, i.e., imagining that the Church proposes a list of "economic policy proposals" that can be conveniently lifted, to the extent they strike the lifter as attractive, without any attached moral anthropology (which might, in turn, come with some unwelcome implications for, say, religious liberty, the family, education, etc.); and (c) it is a mistake to think that the Note, with its focus on world-wide financial markets, somehow baptizes our and other governments' current overspending, or the self-interested (dare we say "greedy"?) and damaging positions being staked out by, e.g., public-employee unions.

A final thought:  When a document like the Note is released, it is often "played," like a good card, in policy and other debates by people who do not, in fact, believe that the Church has the teaching authority it claims.  (Maureen Dowd, for example, does this kind of thing a lot.)  Such "playing" of writings by Church leaders and teachers is, to me, irritating.  I do believe, after all, that even (what strike me as) the somewhat wooly-headed proposals and diagnoses that are sometimes offered on various subjects by Catholic bishops, councils, conferences, etc., demand and deserve my respectful engagement, even when not my embrace or submission.  But, I do not think these proposals and diagnoses should be invoked or deployed as authoritative by people who deny that the Church has anything worth listening to -- let alone submitted to -- when it comes to, say, the obligation of a political community to extend the law's equal protection against private violence to the disabled and the unborn.

UPDATE:  As usual, John Allen has an interesting take:

Focusing on how much papal muscle the note can flex, however, risks ignoring what is at least an equally revealing question: Whatever you make of it, does the note seem to reflect important currents in Catholic social and political thought anywhere in the world?

The answer is yes, and it happens to be where two-thirds of the Catholics on the planet today live: the southern hemisphere, also known as the developing world. . . .