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.

Wednesday, September 21, 2011

Response to Lew Daly on church-state separation and the labor movement

Peter Laarman responds here to the Lew Daly essay, "The Church of Labor," to which I linked the other day.  Notwithstanding my own differences with Daly's view, I don't think Laarman's response is very powerful.  He spends a lot of his response unnecessarily pointing out something that I don't think Daly ever questions, namely, that Catholicism and the Catholic Church were not the only driving factors in the rise of the labor movement. 

He then objects to what he describes as Daly's proposal to "relax traditional church-state separation in order to permit delivery of tax-supported social services by overtly sectarian groups."  But, of course, Daly does no such thing.  He proposes, instead, that we move away from our relatively recent mis-understandings of church-state separation, and return instead to "traditional church-state separation," which focused more on institutional differentiation and welcomed cooperation between religious and secular entities in pursuit of the common good.  Also misguided is his suggestion that Daly is asking us to "do away with this fusty constitutional barrier" or to "pulverize" the "Wall of Separation."  No, he wants us to "get" the barrier right.

By the end of the piece, the reasons Laarman opposes Daly's "libertas ecclesiae schtick" become clear:  Laarman disagrees with the "religious right" about policy matters, and worries that Daly's (i.e., a more correct) understanding of church-state separation might facilitate the ability of the "religious right" to advance its / their views.  Maybe.  Maybe not.   

Las Casas Institute at Blackfriars

Check out the website and work of the Las Casas Institute, at Blackfriars, Oxford:

Bartolome De Las Casas OP was a sixteenth-century entrepreneur turned opponent of genocide and advocate for the rights of indigenous peoples in the "new world". His organising, detailed empirical research, and his preaching profoundly influenced debates within colonial Spain . Drawing on his insights, Francisco De Vittoria OP and the wider Salamanca School made striking contributions to the emergence of international law.

Launching our Institute in November 2008 Professor Conor Gearty of the London School of Economics described Las Casas as the "founder" of human rights. As such he stands in a long line of Dominicans and others who have devoted their research and wider lives to the the rigorous study of ethics, institutions, just governance and social justice. Dominicans today have NGO status at the United Nations. They are also at the forefront of inter-faith conversation and pastoral engagement in divided communities in South Africa, Asia, North Africa , South America, Esatern and Western Europe, and the Middle East.

Inspired by their example the Las Casas Institute sets out to become a fresh, open and influential centre for the development of rigorous scholarship, debate and new leadership in these fields. Interdisciplinary in nature, the Institute contributes to Blackfriars' founding vision to be a centre of the social as well as the sacred sciences with particular concerns at the interface of its core interests, faith and the public sphere. Our home in one of the forty-five Permanent Private Halls and Colleges of the University of Oxford puts us at the heart of community of scholars and students with global interests and outlook. . . .

Two Pieces on the Death Penalty and Actual Innocence Claims

In light of the scheduled execution of Troy Davis this evening, the facts of which case have been receiving considerable attention, I thought to note two very different but both excellent, short, and accessible pieces about the death penalty and claims of actual innocence in law.  I highlight them because they are both models of careful and limited argument -- perspectives which have been helpful to me as I try to think about a very difficult, complicated, and emotionally fraught subject -- and because they complement one another suitably.

The first, by Thom Brooks, is Retributivist Arguments Against Capital Punishment (Journal of Social Philosophy 2004).  Unfortunately this piece may be behind a paywall, but the gist of it is that even if one agrees that murderers deserve death in principle, one can argue from a retributivist perspective against the death penalty because we are not able to have absolute certainty of a person's guilt (as demonstrated by DNA testing).  And Thom says that since a conviction is always capable in theory of being overturned by new evidence, capital punishment cuts short the time within which a convicted person may establish innocence -- in this sense, it is a unique sentence, and uniquely problematic from a retributivist perspective.

The second piece, by Will Baude, is Last Chance on Death Row (Wilson Quarterly 2010).  In it, Will canvasses the legal issue of "actual innocence" with some attention to the Davis case.  But the real insight of Will's piece is that the extensive suite of appeals may at long last be inadequate to vindicate a person's claim of actual innocence.  What then, he asks.  Perfect accuracy, he writes, is not the goal of the criminal justice system.  There are concerns of authority, legitimacy, and finality which have their own claims to our allegiance.  Ultimately, Will concludes that it is legislatures, not courts, which should balance these competing and at times conflicting values.

Peter Steinfels on “More than a Monologue”

This past March, both Robby George [HERE] and yours truly [HERE] weighed in on the Fordham-Fairfield-Union-Yale four part program “More than a Monologue” that is advertised to explore the range of Catholic views on “sexual diversity.”

The first component of this colloquium was held this past Friday, September 16, and Peter Steinfels was the moderator of this inaugural event hosted at Fordham University’s Lincoln Center Campus.

Both Robby and I previously expressed doubts about whether this program would, in fact, be more than a monologue. It is important to now take stock of what Mr. Steinfels has to say. His September 19 web log at dotCommonweal is HERE.

Let me offer a short summary. First of all, he states that he had misgivings when he was invited to moderate the September 16 colloquium, or, in his words, he accepted “with some serious reservations.” Nevertheless, he did the proper thing and discussed the invitation with the conveners. I did much the same when I was asked to present one of the key addresses at the same-sex marriage conference hosted by our friends at St. John’s University last November [HERE]. I am pretty sure that I represented the minority view at the conference, but I went, I presented, I discussed, I debated, I listened, I learned, I respected, and I was heard with equal respect. Any trepidation that I initially had about going was dispelled from the experience. To discuss and debate and disagree are not bad things. Mr. Steinfels had similar concerns even though he shares some of the views that were presented at the Fordham conference.

A little over a year before the St. John’s event, I was invited to another symposium that addressed same-sex marriage. I am not sure if I was in the majority side then, but I do know that the conveners invited a good number of speakers whose views differed with mine. They declined the invitations. It struck some of us attending and presenting at that conference that many of those who declined were not interested in a real and robust discussion and debate on the neuralgic issue of same-sex marriage. In short, dialogue is not always embraced by those who demand it in order to present their views.

Mr. Steinfels expresses similar concerns based on the Fordham experience. As he says in his “misgivings,” “Voices defending traditional teaching and practice were not apparent.” Moreover, he offers concern that he “wasn’t sure whether the series promised really to crack the stranglehold of monologue or to replicate it.” Another of his serious misgivings is that in looking over the schedule of speakers for the remaining colloquia, he sees something like a monologue developing—or, as he says, it appears to be “about as open to dialogue as Ann Coulter to liberalism or Rick Perry on social security.”

Mr. Steinfels does express some positive notes about some of the presentations he heard last Friday. However, as he says of Professor Paul Lakeland, one of the principal conveners, “I have no problem accepting [his] statement...that challenging church teaching is not the agenda (Steinfels italics) of the series.”

In making this observation, Mr. Steinfels leaves ample room for the objective reader to conclude that challenging the Church’s teachings on human sexuality is an item of the agenda, however.

Two other points made by Mr. Steinfuls need to be presented here.

The first is that he continues to have uncertainty about the future of this series and where it is going. As he suggests, the next event at Union Theological which is “already a small jab at Catholic identification” may “put the entire series at risk.” Still, he offers hope that the series may do some good, but there is “at least one minefield to cross before reaching its goal.”

The other point is this: he acknowledges that if the surrounding culture is rapidly altering people’s attitudes toward homosexuality, what is to become of those who retain traditional views? He opines concern of what may happen to these folks who may find themselves in “risky” situations in “many social and workplace settings (starting with the academy).”

 

RJA sj

 

"Lethal autonomy" for machines

The Obama administration is expanding its use of drones in the battle against terrorism.  Meanwhile, technology appears to be headed toward a time when the human role in the use of drones is dramatically reduced.  I'm not categorically opposed to the use of drones, but I am concerned that this is an instance in which a program's political popularity (Who doesn't like the idea of eliminating terrorists with zero risk to American troops?) tends to push ethical questions to the margins. Among other concerns, putting one's own troops at risk tends to focus the public's attention on the moral legitimacy of the justifications offered for the armed conflict in a way that is unlikely to happen when machines do the fighting for us.

Tuesday, September 20, 2011

"A Return to Repugnance"

My former student, Matt Emerson, has a new essay up at Patheos, called "A Return to Repugnance," in which he reflects on his own reactions to the recent stories about "reducing" twins in the womb.  He writes:

. . .  The old arguments—quarreling over Roe, debating about viability, debating the onset of "personhood"—seemed outmatched and outdated. Something had changed, and drastically.

The conviction hit me: We had arrived. We had arrived at the future we were cautioned about, the place where human life had no value except as a field of experimentation, where men and women manufactured life like canned food. Here, in this new place, unborn babies are called "singletons" and willful killing excites all the moral energy of selling a home.

You have to read the article to begin to absorb how bad things have become. . .

Matt then quotes from Leon Kass's famous essay, "The Wisdom of Repugnance":

In crucial cases . . . repugnance is the emotional expression of deep wisdom, beyond reason's power fully to articulate it. Can anyone really give an argument fully adequate to the horror which is father-daughter incest (even with consent), or having sex with animals, or mutilating a corpse, or eating human flesh, or . . . raping or murdering another human being? Would anybody's failure to give full rational justification for his or her revulsion at these practices make that revulsion ethically suspect? Not at all. On the contrary, we are suspicious of those who think that they can rationalize away our horror, say, by trying to explain the enormity of incest with arguments only about the genetic risks of inbreeding.

I understand the criticism of "yuck factor" arguments:  "If you cannot give a reason, then that must be because your position is a weak one.  After all, that's what we human beings do.  We give reasons -- reasons for or against action."  Martha Nussbaum and others have offered related criticisms of what they regard as unjustified morals legislation, e.g., that they rely on "disgust."  To be sure, that something is unfamiliar, unsettling, provocative, etc., does not mean it's wrong or to-be-proscribed.  And yet, in my view, given that we human beings are the kind of beings that we are, and assuming that we think it matters, morally, that we are the kind of beings that we are, there continues to be, as Kass suggested, some "wisdom" in repugnance.

Monday, September 19, 2011

Conference of Religiously Affiliated Law Schools

SPREAD THE WORD:

On May 2-4, 2012, Touro Law Center will host the biennial Conference of Religiously Affiliated Law Schools.  The Conference will explore a variety of important issues related to the general theme of "The Place of Religion in the Law School, the University, and the Practice of Law. "  Specific topics of discussion will include, among others: the relationship between the religiously affiliated law school and the university; bringing religion into the classroom;  law and religion programs and institutes; and the role of religion in the work of public interest lawyers.

Along with the formal Conference proceedings, there will be time for informal discussions among participants, on these and other issues of common interest.

In addition, Touro Law Center will help facilitate opportunities for participants (and accompanying family members) to enjoy New York culture and entertainment, both during the Conference and in the weekend that follows.

For more information on the conference, please contact Professor Samuel J.

Levine: [email protected].  For information on Touro Law Center, please see http://www.tourolaw.edu/ <https://legacy.tourolaw.edu/exchweb/bin/redir.asp?URL=https://legacy.tourola

w.edu/exchweb/bin/redir.asp?URL=http://www.tourolaw.edu/>

Remarks on Natural Law at Notre Dame

During my recent visit to Notre Dame to participate in the wonderful conference in honor of John Finnis organized by Gerry Bradley, I also had the opportunity to give a lecture for the ND Law School Federalist Society chapter.  The campus newspaper called the Irish Rover has published a story on my remarks, but the reporter, though plainly well-intentioned, didn't quite manage to report everything accurately.  So here is the text of what I actually said: 

Morality, Rationality, and Natural Law

Robert P. George

    If moral norms, including those prohibiting such evils as murder, rape, torture, enslavement, and genocide, are what they purport to be—namely, principles for guiding human choices and actions—then there must be a point to abiding by them; they must have some rational basis.  Do they?  What could provide such a point and basis?

    At the foundation of our moral thinking is our understanding that some things are worth doing or pursuing for their own sake.  It can make sense to act to promote or realize them even when we expect no further benefit from doing so.  In other words, they give us more than merely instrumental reasons for acting.  When we see the point of performing a friendly act, for example, not for any ulterior reason, but just for the sake of friendship itself—or when we see the point of studying abstract mathematics, the plays and sonnets of Shakespeare, or the structure of distant galaxies just for the sake of knowledge—we understand the intrinsic value of such activities.  We grasp the worth of friendship and knowledge (to take just two of many possible examples) not merely as means to other ends, but as ends in themselves.  Unlike money or insurance coverage, these goods are not valuable only because they facilitate or protect other goods.  Rather, they are themselves constitutive aspects of our own and others’ fulfillment as human persons.

    Of course, feelings and emotions can and do motivate our actions.  But the point here is that certain intrinsically worthwhile ends or purposes—like friendship and knowledge—do not appeal merely to our emotions, considered entirely apart from rational reflection and judgment.  They also appeal to our understanding—what Aristotle called our “practical reason.”  Thus, a complete account of human action cannot leave out the motivating role of reasons provided by ends or purposes whose intrinsic worth we grasp in intellective acts—what are sometimes called “basic human goods.”  Indeed, often it is the case that we desire to something as a result of our rational grasp of its inherent value.  Apart from our rational judgment that it is worth doing—i.e., that it provides a benefit and, thus, has an intelligible point—we would simply have no desire to do it.

    It is this truth that the brilliant 18th century philosopher David Hume spectacularly missed in proclaiming that “reason is, and ought only to be, the slave of the passions, and may pretend to no office other than to serve and obey them.”  For Hume, in other words, our brute desires specify our ultimate goals (e.g., survival), and the most that reason can do is tell us how to achieve those goals (e.g., eat this, refrain from eating that).  But human deliberation and action are a great deal more complex (and interesting) than Hume’s purely instrumental account of our practical reasoning—his reduction of reason to the role of emotion’s ingenious servant—would allow.  Our practical reason also makes possible judgments regarding which goals are intelligibly worth pursuing for their inherent benefits, and which, by implication, are merely instrumentally valuable or not of any value at all.

    If someone performs a friendly act just for the sake of friendship itself, and not solely for some ulterior motive (which would, after all, render it something other than a true act of friendship), we are not left baffled by it, as we would be left baffled by, for example, someone who for no reason beyond the act itself spent time repeatedly closing and opening a closet door, or walking up and down a busy street informing complete strangers that he likes the flavor of artichokes.  Indeed, we grasp the intelligible point of an act of friendship even if we regard the particular act as one that is not strictly required as a matter of friendship, and, indeed, even if we judge the particular act, though motivated by friendship, to be morally forbidden.  (Consider, for example, someone’s telling a lie to protect the reputation of a friend who has done something disgraceful.  Even if we make the moral judgment that such an act ought not to be done, we can understand the point or benefit of someone’s doing it.  We might well criticize such an act, but we would not find it baffling.)  We understand friendship as an irreducible aspect of our own and other people’s well-being and fulfillment.

    But again, friendship and knowledge are merely two of many aspects of our well-being and fulfillment as human persons.  We human beings are complex creatures.  We can flourish (or decline) in respect of various aspects of our nature.  For example, we are bodily creatures—organisms—and therefore can flourish (or decline) in respect of our physical health.  We are rational, and therefore can flourish (or decline) in respect of our intellectual well-being.  We are moral agents, and therefore can flourish (or decline) in respect of our character.  Although we are individuals, relationships with others in a variety of forms of friendship and community are intrinsic aspects of our flourishing, and not merely means to the fuller or more efficient realization of common individual goals.  And we can certainly flourish (or decline) in respect of the richness and quality of our relationships.  The list could go on.  My point is that the human good is variegated.  There are many basic human goods, many irreducible (and irreducibly different) aspects of human well-being and fulfillment.

    The variegated nature of human flourishing, and the fact that basic human goods can be instantiated in an unlimited number of persons in an unlimited number of ways, means that we must make choices.  Of course, many of our choices, including some serious and even tragic ones, are choices between or among morally acceptable options.  No moral norm narrows the possibilities to a single uniquely correct option.  But moral norms often do exclude some possible options, sometimes even narrowing them to one.  How can that be?

    Among those who share the view that morality is, in a deep sense, about human flourishing, there are two main schools of thought.  The first, known as utilitarianism (or, more broadly, as consequentialism), proposes that people ought always to adopt whichever option offers the best proportion of benefit to harm overall and in the long run.  There are many problems with this proposal, but the most fundamental is that it presupposes, quite implausibly, that different realizations of the human goods available in options for choice (e.g., this human life, that friendship, this part of someone’s knowledge, those aesthetic or religious experiences) can be aggregated or netted (and thus substituted) in such a way as to render the idea of “the net best proportion of benefit to harm” coherent and workable.

    This is a mistake.  To say, for example, that friendship and knowledge are both basic human goods is not to say that friendship and knowledge are constituted by the same substance (“goodness”) manifested in different (but fully replaceable) ways or to different degrees.  They are, rather, two different things, reducible neither to each other nor to some common factor of value.  To say that friendship and knowledge are basic human goods is merely to say that they have this, and only this, in common:  each can provide us with a reason for acting whose intelligibility as a reason is dependent neither on some further or deeper reason nor on some subrational motivating factor to which it is a means.

    This point can be seen by reflecting on what is lost or foregone in choices between truly good, but mutually exclusive options.  The good of the option not chosen is simply not to be found in the option that is; this is why regret is possible even when we make good choices.  If the utilitarian presupposition of commensurability were sound, then the “best” option would contain all the good contained in the other options, plus more.  There would be nothing to regret.

    The alternative to utilitarianism, at least for those who believe that ethical thinking proceeds from a concern for human well-being and fulfillment, is what is sometimes called “natural law” ethics.  Its first principle of moral judgment is that one ought to choose those options, and only those options, that are compatible with the human good considered integrally—that is to say, with an open-hearted love of the good of human persons considered in all of its variegated dimensions.  The specifications of this abstract master principle are the familiar moral precepts that most people, even today, seek to live by and to teach their children to respect, such as the Golden Rule (“do unto others as you would have them do unto you”), the Pauline Principle (“never do evil that good may come of it”), and Kant’s categorical imperative (stated most vividly in the maxim that one ought to “treat humanity, whether in the person of yourself or others, always as an end, and never as a means only”).  When applied to the basic human goods as opportunities for them arise in the concrete circumstances of life, these precepts yield fully specific moral norms such as those forbidding murder, rape, torture, enslavement, and genocide.  The movement of thought from our grasp of the many dimensions of human well-being and fulfillment to the first principle of morality and its specification in the form of more concrete norms of conduct is fundamentally—and decisively—the work of reason.

Crockpot and Microwave Catholics

Here's an interesting column by David Gibson from a couple of days ago about Catholics who have been raised as such from birth (often within a family structure), and those who convert to Catholicism later in life.  Gibson mentions it himself, but William James's discussion of conversion in The Varieties of Religious Experience seems to reflect a preference for the latter.  Peter Berger is quoted at the end of the piece as saying that "religion today is a choice, and we are all converts to one degree or another[.]"  Maybe that's right, though I wonder whether it might also be right to say that "choice" is a concept with many attendant and very different conceptions.  [x-posted CLR Forum]

Sunday, September 18, 2011

Archbishop Gomez on Immigration and much more

In late July, at the Napa Institute, Archbishop Gomez gave a wonderful lecture titled "Immigration and the 'Next America': Perspectives from Our History."  Situating the immigration debate within broader cultural shifts in American society and within American history, including its rich Catholic and Hispanic history, Archbishop Gomez encourages us to approach this issue as Catholics and not as Democrats or Republicans, liberals or conservatives.  He says:

Our culture pushes us to "privatize" our faith, to separate our faith from our life in society. We always have to resist that temptation. We are called to live our faith in our businesses, homes and communities, and in our participation in public life.

The essay is well worth the read!