The European Union has long been an exhibit for aspects of Catholic social thought, and not surprisingly so--several of the "Founding Fathers" of the EU (Jean Monnet, Robert Schuman, and Konrad Adenauer, for example) were deeply influenced by Catholic social thought, and popes ever since John XXIII have been outspoken advocates of European integration. But things are not going well in Europe right now, to put it mildly (thorough Der Spiegel story here, commentary by FT's Wolfgang Munchau here, h/t Tyler Cowen). Although subsidiarity is a constitutional norm in the EU, see George Bermann, Taking Subsidiarity Seriously: Federalism in the European Community and the United States, 94 Colum. L. Rev. 331 (1994), the current crisis strikes me as a cautionary tale about free-floating concepts from Catholic social thought unmoored from a sufficiently determinative conception of the common good and solidarity (economic crises have a way of doing that), with a good measure of the usual human tale of avarice, corruption, and incompetence thrown in.
Tuesday, September 13, 2011
Europe, or "What Happens When Subsidiarity Goes Bad"
Monday, September 12, 2011
Natural Law in Legislation and Adjudication
I recently gave an interview to Laura Inglis of the Intercollegiate Studies Institute. Laura is a talented young constitutional scholar who did her D.Phil in U.S. Constitutional History at Oxford. Our conversation was wide ranging, but at one point touched on the question of natural law in legislative decision making and in adjudication:
LI: How do you think natural law should affect a) judges and b) legislators in their day-to-day work?
RG: Legislators should always be guided in their deliberation, judgment, and action by principles of natural justice. Their exercises of prudence in protecting and advancing the common good, must always be shaped by their grasp of what is due to citizens as a matter of right and wrong, a matter of justice. As for judges and their day to day work, the role of principles of natural justice is less straightforward. Certainly in a constitutional system such as ours, judges are not authorized to play a legislative role or to substitute their judgments of what natural law and respect for natural rights requires for the contrary judgments of those empowered by the Constitution to legislate for the sake of the common good. The mission of judges is not to make law, but, rather, faithfully and impartially to apply the law as made by the ratifiers of the Constitution or legislators acting pursuant to the Constitution. Judges go wrong--they act in violation of the Constitution--when they usurp authority vested by the Constitution in other officers (i.e., legislators and executive officers). In interpreting the Constitution, fidelity to the Rule of Law, which is itself a key principle of natural law, requires that judges respect the constitutional limits of their own authority.
The complete interview is available here: http://faculty.isi.org/blog/post/view/id/673
In the mail: "The Christian Idea of Man"
St. Augustine's press has just published Josef Pieper's "The Christian Idea of Man". (Order it, and read more, here.) It's hard to imagine a subject better suited for consideration by those interested in Catholic Legal Theory!
"Faith, Reason, and the University": Regensburg, 5 years later
Five years ago today, Pope Benedict XVI delivered what I thought, and think, was a profound and important (if widely misunderstood and misreported) address at the University of Regensburg. The address was called "Faith, Reason, and the University." Read it (again) here.
Arkes replies, on natural law and judging
Continuing the conversation with Prof. Baur, Hadley Arkes sends in this:
Rick Garnett and my friends on the Mirror of Justice have been kind enough to play the exchange between Professor Michael Baur and me under conditions that may resemble a chess game played over long distance and long intervals. . . .
But we had something of importance we were both trying to think through. And so let me omit the sword play, on who might have misunderstood, or misrepresented, whom—and try to recall the central questions that will remain, even if Professor Baur and I recede from the scene.
Sunday, September 11, 2011
On the anniversary of the attacks of 9/11
I think people tend to go overboard these days with the hyphenated-American bit. So I rarely go out of my way to describe myself as an Arab-American. I made an exception, though, for reasons I believe are fully justified, in responding to a kind invitation from my friend Erik Owen of Boston College's Boisi Center on Religion and Public Life to join others in offering a comment on the anniversary of 9/11. The comments are now posted on the Boisi Center website. For space reasons, my comment had to be truncated, so I am posting the fuller version here.
* * * * * * * * * * * * * * * * * * * *
I am an Arab-American. Although I am a Christian, I am close to many Muslims, especially from Syria and Lebanon, my ancestral homelands. What struck me and so many of my Arab and Muslim friends about the reactions of Americans to the attacks on our country and the murders of our fellow citizens and others on September 11, 2001 was the goodness and decency of the overwhelming majority in refusing to ascribe collective guilt to Arabs and Muslims. Were there exceptions? Sure. Since human nature has not been repealed, it would have been a miracle had there not been some who would blame Arabs and Muslims generally. But the remarkable—nearly miraculous—thing is that the exceptions were, well, exceptions, not the rule. In the great sweep of human history, and across the world’s cultures, how often would this have been the case?
Part of the credit goes to President George W. Bush. He made clear from the start that the war against Islamist terror was not a war against Islam or Arabs or Muslims in general. It was a war against “evildoers,” as he rightly labeled Al Qaeda, who had, as he put it, “attempted to highjack a great religion.” Part of the credit goes to Christian and Jewish leaders who reinforced the President’s message. They stressed the fact that ascribing collective guilt—as so many Christians, to the shame of our faith, once did to Jews—is not only un-American, it is un-Christian and un-Jewish.
We as a nation, now under a new President who, on this point, at least, agrees with his predecessor, are trying to deal prudently and justly with protecting our nation (and our nationals abroad, and our allies) from further terrorist violence. Some of the security policy issues are, as President Obama has observed, complicated and difficult. For example, Obama promised in his campaign to close the detention facility at Guantanamo Bay—that seemed to him at the time to be the right policy; but in office he has decided it best not to close it. Evidently, the issue turned out to be more complicated and difficult than he had imagined. So there is room for disagreement on many matters of policy among reasonable people of goodwill. We certainly need to avoid discriminatory and other unjust treatment of our Arab and Muslim fellow citizens (and Arabs and Muslims abroad). At the same time, we need to take seriously the fact that radicals acting in the name of Islam design to kill Americans, Israeli and other Jews, and even those of their fellow Muslims who do not share their extremist ideology. We must deal with the grave threat they pose in a sober, realistic, and determined manner.
Since there is so much room for reasonable disagreement in this difficult area of policy making, let us not be too harsh with one another. Let us at least try to avoid the extreme partisanship that marks our politics in so many domains. Let those of us on the conservative side recognize that our friends who warn against anti-Arab and anti-Muslim prejudice have a legitimate concern. And even if we believe that some of the policy preferences favored by our liberal friends (e.g., civilian trials for top terrorists, closing Guantanamo) are misguided, let us not dismiss them as knaves or fools. Let us consider their arguments thoughtfully, and respond with thoughtful counterarguments. And let those on the liberal side resist the temptation to hurl charges of Islamophobia promiscuously and in partisan and defamatory ways. Let them recognize that the overwhelming majority of Americans who favor policies they oppose are moved by a sincere desire to protect the innocent—including innocent Muslims—from genuine evildoers; they are not motivated by hatred or bigotry.
A Finnisfest at Notre Dame
On Friday, I attended a conference at Notre Dame, organized by Gerard V. Bradley, celebrating the magnificent intellectual achievements of my doctoral supervisor and beloved mentor John Finnis, Professor of Law and Legal Philosophy at Oxford University and Biolchini Family Chair of Law at Notre Dame. The conference was timed to coincide with the publication by Oxford University Press of the second edition of Pofessor Finnis's masterwork, Natural Law and Natural Rights, and also the publication by Oxford of five volumes of Finnis's collected essays. Splendid papers addressing important themes in Professor Finnis's work were presented by Timothy Endicott of Oxford University (on Finnis and the philosophy of language), Joseph M. Boyle, Jr. of the University of Toronto (on Finnis and the ethics of killing), Patrick Lee of Franciscan University of Steubenville (on the moral status of nascent human life), John Keown of Georgetown University (on Finnis as the "new father of medical law"), Judge Neil Gorsuch of the United States Court of Appeals for the 10th Circuit (on Finnis on intention and the allocation of risk), Fr. Peter Ryan of Mt. St. Mary's (on Finnis and moral theology). I gave a paper on "public morality." Germain Grisez gave a moving presentation on his long and fruitful collaboration with Professor Finnis. In his own remarks, Professor Finnis offered, among other things, a moving tribute to his own mentor, the late H.L.A. Hart, who was Professor of Jurisprudence at Oxford.
The evening before the conference, I had the pleasure of speaking on "morality, rationality, and natural law" to the Notre Dame Law School Federalist Society. It was great to meet so many intellectually impressive young men and women who are determined to make an important difference in the world. With such outstanding students and an exceptionally gifted and dedicated faculty, Notre Dame Law School these days is an inspiring place. It was wonderful being there.
Friday, September 9, 2011
Engaging Stanley Hauerwas at Duke Law
I've just returned from an extraordinary conference on the work of Stanley Hauerwas at Duke Law (details here) that was a model of engagement between law and theology. I was joined on a panel by my fellow MOJ blogger Lisa Schiltz (UST), Brad Wendel (Cornell), and James Logan (Earlham). Steve Macedo (Princeton) provided a Rawlsian critique of Hauerwas, Stanley Fish (FIU) was as entertaining as expected, and H. Jefferson Powell (GW) moderated a concluding discussion with Hauerwas himself. Thanks to John Inazu (Washington U., who also gave an excellent paper on Hauerwas and Ronald Dworkin) for his creativity and energy in organizing the conference and to Duke Law for its gracious hospitality. The papers are forthcoming in Duke's Law and Contemporary Problems.
On Cheering Death and Catholic Legal Theory
Many thanks to Rob, Robby, and Marc for their contributions regarding the death penalty and public reactions to the exercise of this penalty in particular cases or circumstances.
By way of making a small contribution to the development of Catholic legal theory regarding this method of punishment, the following might be considered.
One place to begin is to contemplate what is expected from the punishment of one who has clearly committed a great wrong that has threatened individuals, the common good, and perhaps the entire human family? Retribution? Rehabilitation of the convicted? Protection (self-defense) of the society from further harm from a particular person who has been justly convicted of grievous crimes? Some combination of the preceding? All of the preceding?
With regard to any punishment, there is a need to consider the principles of proportion, the justification, and the discriminating use of the sanction. In this context, is the offender’s permanent removal from society the wisest approach to achieving all the legitimate goals of punishing the offender who has committed the most heinous actions against others? If so, does not perpetual incarceration become attractive if the rehabilitative element of punishment includes giving the offender the last possible chance for making a good and sincere act of contrition that would aid in his or her own salvation? Even if society has been forced to suffer a great evil at the hands of this person, should society respond in kind? Or should it take stock of St. Paul’s counsel, “do not be overcome by evil, but overcome evil with good.” (Romans, 12:21)
It would appear that life’s imprisonment is the only way in which the convicted can reflect on the wrong or wrongs perpetrated and the means for reconciling with those who have suffered as a result.
Providing this opportunity to the convicted would not preclude or minimize just punishment. By the same token, it would provide the longest period of opportunity for the offender to reconcile with the neighbors who have been harmed. In a Catholic context, the notion of reconciliation is not complete unless the wrongdoer has been reconciled with both God and the neighbor.
The redemptive power of God, through Jesus Christ his Son, ought to be available to the wrongdoer for as long as it may take, which could be a natural lifetime. We must always be mindful of the words of Jesus: “the Son of Man came to seek out and to save the lost.” For how long God chooses to seek and save is for God, not for us, to decide.
Inevitably the justly convicted person’s premature death accelerated by capital punishment will terminate the possibility of reconciliation with God and the neighbor and the wrongdoer’s salvation. Reconciliation with God and the neighbor is, for all of us, a vital element of God’s plan for the sinner to seek forgiveness. The Christian sense of reconciliation enables even the most egregious wrongdoer, whose penitence is sincere, to become a “new creation in Christ.”
However, with the imposition of capital punishment, this possibility is denied. When the wrongdoer can no longer reflect on his or her transgressions because of premature death through execution, God’s plan has been interrupted.
But, with a life ahead until natural death, the thinking of the convicted goes on for as long as God wills.
A need for clarity about the concerns of society and the wrongness of the incarcerated person’s actions must be addressed at this point. Abstaining from capital punishment does not entail eliminating a just and severe punishment. Only a particular form of punishment that interferes with God’s plan for salvation and redemption is abandoned. The justifications for punishment based on deterrence, rehabilitation, and even retribution can be served with a life sentence of imprisonment. In the meantime, the wrongdoer is given the maximum opportunity to make amends for the crimes and sins committed. The lifestyle of imprisonment can be simple, even stark, but not inhumane. Such a penalty contributes to justice and all legitimate interests of society and those, in particular, who have been harmed by the wrong committed.
On a different yet related matter, the sentence of life imprisonment provides all persons who are concerned with the opportunity to rely on emerging scientific technologies that could well demonstrate that the convicted person did not, in fact, perpetrate the crime allegedly committed. Recent cases have demonstrated that some persons condemned to death, with the introduction of appropriate and reliable post-conviction evidence relying on breakthroughs in forensic science, were, in fact, not responsible for the heinous crime with which they were accused and convicted. Avoiding the death penalty in such cases does not inhibit justice; rather, it enhances it.
Heinous crimes are usually sins as well, and no person is without sin. However, neither is anyone excluded from God’s plan of redemption. If it is God’s will that redemption is available to anyone who seeks it, then it is not the role of any person to interfere with His merciful plan. To interfere with this salvific plan is not a proper human activity. Even if the condemned were to give consent, should anyone interfere with God’s justice and God’s reward or denial of His plan? Even the justly convicted person ought to be given the opportunity for redemption. To reduce by human means the time in which the convicted person’s redemption might take place is to place a human judgment before God’s.
Are we our brothers’ and sisters’ keepers? The answer to this ancient question is clear: yes, we are. If society abstains from the death penalty, it would seem to be avoiding another evil and embracing an important good—the mercy of God to those who seek His forgiveness. And for those who don’t, they will never again taste the freedom that we often take for granted.
RJA sj
Thursday, September 8, 2011
Cheering for death
Rob Vischer's questions are legitimate and important. I believe that the correct answers are yes, yes, and yes. I also agree with Rob that his third question is the most significant one. Even if one believes, as I do not, that the death penalty in certain cases can be justified, one should not be cheering executions. I find something troubling even in cheering the execution of a mass murderer, such as Osama bin Laden. As best I can tell, President Obama effectively ordered bin Laden's execution. He could have been taken alive, but the SEALs evidently understood that their mission was not to take him alive. Perhaps others see the matter differently. If, in fact, the SEALs mission was to kill him, whether or not it was necessary to do that, I disagree with the President's decision, though I understand it. The death penalty is a far trickier moral issue than, say, the killing of innocent unborn, mentally handicapped, or frail elderly human beings. Moreover, the Church's teaching historically accepted it (on retributive grounds), though it has now---rightly, in my view---taken another course. The key thing, though, is that even the execution of someone like bin Laden was nothing to cheer about. And the same is true of the execution of people convicted of capital crimes in our courts. Perhaps someone will say, "well, we're not cheering for the death of the offender, we're merely cheering the fact that justice has been done or a threat to public safety has been eliminated." I would reply that although that is a logical possibility, it is always unwise to cheer. Cheering in the wake of anyone's death, even if one regards the killing as justified, suggests a lack of awareness of the respect owed to human life as such, and the gravity of any death-dealing action, even one that is justified.
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