Mirror of Justice

Thursday, June 16, 2011

Health effects of legal recognition of same-sex couples

Holning Lau and Charles Strohm examine the empirical evidence regarding the health effects of legally recognizing same-sex couples:

This Article presents a literature review of empirical studies concerning the ways in which legal recognition of same-sex relationships impacts individuals’ health and well-being. We discuss the studies’ methodologies, findings, limitations, and implications for the debate on reforming marriage laws.

The recent research on same-sex couples is consistent with what some legal commentators have previously inferred from earlier research on different-sex couples. Such commentators have inferred that legally recognizing same-sex couples generally improves those couples’ health and well-being by promoting care between the couple and enhancing support for the couple from third parties such as family and friends. By synthesizing and presenting recent research that focuses on same-sex couples directly, this Article helps to bridge the inferential gap.

Bankruptcy judges challenge DOMA

By Rob Vischer

An unexpected front opens up in the DOMA battles.

Should a libertarian support parental rights?

By Rob Vischer

Eugene Volokh offers a tentative "yes."

Wednesday, June 15, 2011

Please don't speak ill of the dead

By Patrick McKinley Brennan

It is true, as Michael Moreland mentions, that Martha Nussbaum has taken to complimenting Jacques Maritain as the first "political liberal," by which she means that he was Rawlsian before Rawls himself invented "a theory of justice." My own attempt to come to the late Maritain's defense is here. Nussbaum's spirited reply to my attempt to situate Maritain at an appropriate distance from the principle of the priority of the right over the good can be found at 54 Villanova Law Review 696-99 (2009). I confess that I do think there is *something* to Nussbaum's claim (which probably goes to some aspects of Maritain's political philosophy that don't in the end stand up to proper scrutiny), but I consider it demonstrable that Maritain intended to deny and did deny the legitimacy of the basic political strategy that Rawls (and others) would later pursue. The author of the following passage is not Rawlsian at heart: "I distrust any easy and comfortable friendship between believers of all denominations. I mean a friendship that is not accompanied, as it were, by a kind of compunction or soul's sorrow; just as I distrust any universalism which claims to unite in one and the same service of God, and in one and the same transcendental piety -- as in some World's Fair Temple -- all forms of belief and all forms of worship." (Maritain, On the Use of Philosophy, 38). To be sure, the later Maritain did deny that the civil ruling authority could properly privilege the place of the Catholic Church in the state (pace Ottaviani!), but he certainly never limited the aims of law to what would pass the test of the two basic principles of justice. In relevant respects, Maritain's account of the natural law as the source and limit of the positive law is quite traditional, which assures that he is no political liberal.

Finnis: An Introduction to "Philosophy of Law"

By Rick Garnett

Yours, thanks to the modern miracle of SSRN: John Finnis, "Philosophy of Law: An Introduction." Here is the abstract:

This Introduction to my 'Philosophy of Law: Collected Essays Volume IV' (Oxford University Press 2011), published in the United Kingdom in early April, and in the United States in early May 2011, introduces the volume’s 22 published and unpublished essays, and follows the volume’s division into four Parts: Foundations of Law’s Authority; Theories and Theorists of Law; Legal Reasoning; and the Two Senses of “Legal System.” The first half of the Introduction is, in effect, a brief new essay on the foundations of the positivity of positive law, revisiting issues taken up in chapter I of Natural Law and Natural Rights and issues involved in the so-called sources thesis and in the labeling of theories as “positivist.” Later parts of the Introduction indicate some patterns emergent in the volume’s many essays on particular theorists and theories; review the bearing of the “one-right answer” thesis on legal reasoning and some prime examples of judicial misreasoning; and the relation of the idea of “legal system” to issues around the emergence of independent states in the British Empire, and around Britain’s absorption into and subjection to the European Union. The Introduction, like the volume, intersects with the Introductions to, and contents of, each of the other volumes in the five-volume set, which is published just before the second edition of Natural Law and Natural Rights, reformatted to accompany the set and incorporating a 65-page Postscript. The Collected Essays are I Reason in Action, II Intention and Identity, III Human Rights and Common Good, IV Philosophy of Law, V Religion and Public Reasons. Each volume includes the index for the set, and the author’s bibliography.

"It's not about you"

By Rick Garnett

I'm not the bigggest David Brooks fan, but I thought his op-ed, "It's Not About You," from a few weeks ago, about the right message to send to new college grads, was very thoughtful, and very "Catholic" in theme. Especially this, from the end:

Today’s grads enter a cultural climate that preaches the self as the center of a life. But, of course, as they age, they’ll discover that the tasks of a life are at the center. Fulfillment is a byproduct of how people engage their tasks, and can’t be pursued directly. Most of us are egotistical and most are self-concerned most of the time, but it’s nonetheless true that life comes to a point only in those moments when the self dissolves into some task. The purpose in life is not to find yourself. It’s to lose yourself.

Nussbaum on Perfectionist and Political Liberalism

By Michael Moreland

One of the summer delights at Villanova is taking a break from research and writing to participate in a biweekly reading group on moral, political, and legal philosophy organized by my friend and colleague Michelle Madden Dempsey. We recently read Martha Nussbaum's article "Perfectionist Liberalism and Political Liberalism," 39 Philosophy and Public Affairs 3 (2011), in which Nussbaum offers a strong defense of Rawlsian political liberalism against Razian perfectionist liberalism. I have some significant reservations about aspects of the article, particularly Nussbaum's characterization of the incompatability of religion and pluralism (14-15) and her discussion of the "irrationality" of Christianity on account of its doctrines of the Trinity and of grace (26-28), where I think her treatment of these issues is much too compressed. Nussbaum does say some nice things about Jacques Maritain, however, and she writes he might be called "the first political [ie, Rawlsian] liberal." (Patrick Brennan and other fans of Maritain can tell us if the compliment is welcome.)

Nussbaum gives an excellent summary and defense of the Rawlsian account of political liberalism and the central importance of respect for persons in that account--in some ways, her reconstruction here is more persuasive and clearer than one finds in Rawls himself. And I especially liked Nussbaum's slap at utilitarianism and its frequent failure to consider the political implications of a utilitarian view. Nussbaum writes, "The concept of political liberalism is simply ignored in a large proportion of discussions of welfare and social policy, as are the challenges Rawls poses to thinkers who would base politics on a single comprehensive normative view," and then drops this footnote: "This is true to some extent even in philosophical utilitarianism: Peter Singer, for example, has never, to my knowledge, addressed the challenge that political liberalism raises for his comprehensive view. It is ubiquitously true in philosophically informed areas of welfarist economics" (6, n.9).

Next up: John Gardner's brilliant paper "What is Tort Law for? Part 1: The Place of Corrective Justice."

Gorgias Ascendant

By Marc DeGirolami

Sophistry -- an ethic for our times, here (h/t MLM). Or, of course, here:

GORGIAS: Well, I do not think, Socrates, that we ought yet to depart, but you should carry through the discussion, and I think the others too agree with me. I myself am anxious to hear you go through what remains.

SOCRATES: I myself, too, Gorgias, would have liked to continue the argument with Callicles here, until I had paid him back with the speech of Amphion in reply to that of Zethus. But since you are unwilling, Callicles, to help me finish the argument, you can at least listen and interrupt if at any point you think I am wrong. And if you refute me, I shall not be vexed with you as you are with me, but you shall be enrolled as the greatest of my benefactors.

CALLICLES: Go on alone, my dear sir, and finish the argument.

Tuesday, June 14, 2011

Less subject?

By Patrick McKinley Brennan

Living, as we do, under a diminished sense of the ontology of groups, even of the Church, it is all too easy to conclude that groups are not bound by the obligations to God that bind individuals. In the period leading up to the Council that delivered Dignitatis humanae and its important celebration of the inviolability of individual conscience, good Catholics continued to recognize that the state was no less obligated to honor God than individuals were. In a lecture at the Pontifical Lateran Universtiy in March of 1953, Cardinal Ottaviani made the point in these terms: "Men living together in society are not less subject to God than they are as individuals, and civil society, no less than individual human beings, is in debt to God, 'who gave it being and maintains it, and whose ever-bounteous goodness enriches it with countless blessings.' [Immortale Dei]. Accordingly, as it is not lawful for any individual to neglect his duties to God and to the Religion according to which God wills to be honored, in the same way 'states cannot without serious moral offense conduct themselves as if God were non-existent or cast off the care of religion as something foreign to themselves or of little moment.' [Immortale Dei]." J.C. Murray, of course, had important things to say by way of criticism of the traditional view espoused by Card. Ottaviani, and E.A. Goerner, in his towering book Peter and Caesar (1965), has some appropriately harsh things to say about how some pursue the Ottaviani (= traditional) line without adequate attention to particulars, among other faults (pp. 153-72). Goerner, though, goes on to advocate the indispensability of striving "to Christianize politics" (p. 269). Goerner's argument remains a timely warning against a too-ready embrace of Murray's colonizing historicism.

A visit to Italy to discuss civic values

By Robert George

I have just returned from Italy, where I gave the graduation address for the Master of Civic Education program at the Ethica Institute in the charming city of Asti. It was a wonderful opportunity to engage some of Italy's most gifted and promising young intellectuals. Ethica is performing a great service to the Italian nation by promoting the rigorous and appreciative study of civic values that must be in place if a regime of republican liberty is to be sustained. Scholars representing a spectrum of political viewpoints are assisting in the project. Students at Ethica have the great advantage of hearing the best arguments that can be made on different sides of questions that are at the center of Italian politics today. It is often lamented by public spirited Italians that civic discourse in their nation has degenerated into the rankest forms of partisanship. They say that political discussions frequently amount to exchanges of insults and other forms of verbal abuse. Ethica is doing something to change that. Its efforts deserve praise and support.

While in Italiy, I also had the opportunity to participate in a debate with my dear friend and colleague Maurizio Viroli at the Collegio Milano. Professor Viroli is a distinguished scholar of the history of political thought. The debate concerned a topic that is of vital interest to Italians as well as Americans: religion and politics. Professor Viroli, though a confirmed secularist and man of the left, spoke so much truth and good sense that I had trouble finding points to disagree with him about! I suspect that his very positive evaluation of the role of religious faith in civic life scandalized some European secularists in the audience. He skillfully used the work of Harvard political scientist Robert Putnam to support his position. As I said to the audience, I mainly felt like shouting "Amen, brother. Hallelujah!"

Curiously, the one major point of disagreement between us turned out to be about the interpretation of a passage in the Bible. Almost in passing, I offered an interpretation of the teaching of Genesis that man is made in the image and likeness of God that stressed the God-likeness of the human capacities for reason and freedom. Following Aquinas---an Italian, of course---I proposed that our dignity as human beings is anchored in our nature as free and rational creatures. (By "rational" I mean, and Aquinas meant, the rich, Aristotelian conception of rationality, not the thin modern conception that instrumentalizes reason and reasoning and reduces rationality to a form of calculation or even computation.) Professor Viroli rejected that interpretation, proposing instead that the Biblical claim is that man is God-like in his capacity for caritas (charity, love). My rejoinder was that caritas or love is properly understood, not as something standing in contradistinction to reason and reasoning, but fundamentally as a rational power. (This strikes some modern ears as odd, mainly because so many people have bought into the instrumentalized, and thus impoverished, understanding of rationality as basically a form of calculation.) Love is not primarily a matter of feeling or emotion, but rather an act of the will (which, as Aquinas rightly noted, is a rational appetite). To be sure, love has its affective dimensions, but it is above all an activity---the active willing of the good of the other for the sake of the other. It is not an accident that love (like laughter) is an activity of rational creatures.

Italy is my ancestral homeland on my mother's side. That made it a special joy to be there, discussing issues of the deepest human meaning. (The food was pretty amazing, too!)