This morning I presented a paper on conscience protection and abortion at the conference in Princeton. Our MoJ leader, Rick Garnett, invited me to post some of what I said. Here is a link to an article I did for Public Discourse from which part of my presentation was extracted:
Saturday, June 4, 2011
Abortion, conscience, and "health care"
Conscience and "concession": A response to Patrick
Patrick's post, responding to mine, makes me worry and regret that I was unclear, and gave the impression that I think "[d]emocratically pedigreed enactments can[] reduce what is God's by right." I don't. My statement that "in a democracy, requests for 'conscience'-based exemptions from validly enacted regulations, are almost always requests for concessions, for toleration, and not claims of right" was intended only as a description of what seems to in fact "go on" as requests for conscience-based exemptions are processed by the relevant political authority. But, I can see that I didn't say very well what I meant to say. So, I agree with Patrick, though I also think (maybe he does not?) that, in fact, the political authority grants requests for conscience-based exemptions when that authority decides that it is not costly to do so and not really because it thinks it is required, by virtue of the claimant's "right", to do so.
"Concession" or Ius Divinum
Unlike Michael, Rob, and Rick, I'm not at Princeton to study "institutional conscience." I am, however, close enough to take my friend Rick's bait thrown from New Jersey. Rick writes that "in a democracy, requests for 'conscience'-based exemptions from validly enacted regulations, are almost always requests for concessions, for toleration, and not claims of right." I don't see it that way. Imagine a validly enacted law (statute or constitutional amendment) that forbade the availability of wine, with no exception being made for wine intended solely for sacramental use. Would the Church, in asking the state to permit the availability of the matter of the sacrament necessary to the worship that is God's by divine right, be asking for a mere concession? Democratically pedigreed enactments cannot reduce what is God's by right, though obviously they can impede -- and historically often have impeded -- individuals' and groups' giving God what is His by right. Sure, it may -- or may not, frankly -- be prudent to couch requests for the liberty of the Church in terms of concessions, but under the surface of the request for concession is claim of right that democracy is powerless to diminish. The concession theory that comes down to us from Hobbes is an attempt to make the civil authority into that false "mortal God" that has little or no room for the Church. Our Lord, however, didn't say, "Hoc facite in meam commemorationem si Caesari placet." He said, "Hoc facite."
More on "Institutional Conscience"
Like Rob, I am at a very interesting conference / consultation at Princeton's Witherspoon Institute, with a group that is exploring the challenge of protecting "institutional conscience." And, like Rob, I wonder how helpful, and accurate, the language of "conscience" is for dealing with threats to the character, integrity, and freedom of associations, institutions, and churches. Putting aside, though, for now, my reservations, I am also wrestling with the uncomfortable thought that, at the end of the day, in a democracy, requests for "conscience"-based exemptions from validly enacted regulations, are almost always requests for concessions, for toleration, and not claims of right. This is because the regulation in question will usually reflect the judgment of the political community about what is moral, or in the service of the common good, and so the political community can realistically only be expected to extend a "conscience"-based exemption if it believes that the "costs" of the exemption to its project -- that is, the project it is trying to pursue through the regulation -- are not too great.
In any event, MOJ-er Michael Moreland and Prof. Steve Smith will be giving papers today about church autonomy, freedom of association, and the freedom of the church. Stay tuned!
Institutional conscience protection at Princeton
I'm currently at Princeton, where the Witherspoon Institute is hosting a roundtable discussion on the protection of institutional religious conscience. The papers have been thoughtful and provocative, and the accompanying discussion very rich. A couple of examples:
Christopher Tollefsen and Daniel Sulmasy both presented papers arguing that associations have consciences based on the reality of collective intent embodied in associational life. I'm sympathetic to any effort to protect associational freedom, but I'm not persuaded on the merits or as to the necessity of making the argument. I think it's enough to say that associations are essential venues for the formation, expression, and living out of conscience, and that failing to defend the freedom of associations effectively cuts conscience off at the knees. My concern with making the stronger claim -- that associations should be viewed as having consciences -- is that it will weaken the argument that conscience is ontologically real and a core anthropological truth. Conscience is not just a convenient construct or instrumental device for capturing important human values; conscience is a real facet of the human person, and I don't want to weaken that perception by stretching it to cover non-human entities. Both Christopher and Daniel will deny that associational conscience weakens the human reality of conscience, but I have my doubts. I think some of the negative reaction to Citizens United illustrates the discomfort folks have with attributing human qualities to non-human entities, and I'm not sure why we need to go down that path.
Gerry Bradley presented a paper defending the value of institutional ministry, arguing that "the religious act of charity is much richer than its secular counterpart." He compared a religious charity's work to that of a family farm, and a secular social services provider's work to that of agribusiness -- both the family farm and agribusiness provide the same product, but there is a web of relational goods that permits us to value the family farm differently. My question is whether the difference in "richness" between religious and non-religious charities can be expressed in terms accessible to the state. I believe that the state can recognize the value of religious charities as being different -- especially to participants -- than the value of secular charities, but I'm not sure that the state can recognize the difference in a comparative way. I understood Gerry as making the claim that the state can actually recognize the religious charities as being better / richer than the secular counterparts, and that's where I'm still not quite persuaded.
In any event, these are just some of the great conversations on important topics that have occurred. More to come.
Friday, June 3, 2011
"Gay softball league limit on straight players OK'd"
Here. However, the organization, the North American Gay Amateur Athletic Alliance, apparently will have to answer to the federal court for how it defines who's gay. Parallels to legal problems faced by traditionalist-conservative organizations are, of course, purely coincidental. I'll keep comments open, but be on your best behavior.
Thursday, June 2, 2011
"Engaging with Stanley Hauerwas"
This looks like a great event!
Theological Argument in Law: Engaging With Stanley Hauerwas
Duke University School of Law
September 9, 2011
Topical Essays:
* Hauerwas and Legal Ethics, W. Bradley Wendel (Cornell)
* Hauerwas and Disability Law, Elizabeth R. Schiltz (St. Thomas)
* Hauerwas and Bioethics, Michael P. Moreland (Villanova)
* Crime, Criminals, and Hauerwasian Punishment, James Logan (Earlham, Religion)
Panel Chair: Paul J. Griffiths (Duke, Theology)
Broader Applications:
Hauerwas and the Sermon on the Mount, David A. Skeel (Penn)
Hauerwas and the Common Law, M. Cathleen Kaveny (Notre Dame, Law and Theology)
Hauerwas, Reconciliation and the Courts, Richard P. Church (private practice)
Panel Chair: Guy-Uriel Charles (Duke)
Legal and Political Theory:
Must Law Be Violent?, Stephen L. Carter (Yale)
Hauerwas and Dworkin: The Limits of Integrity, John D. Inazu (Wash U.)
In Defense of Liberal Public Reason, Stephen Macedo (Princeton, Politics)
Panel Chair: Ian Baucom (Duke, English)
Response:
Stanley Hauerwas (Duke, Theology)
Moderator: H. Jefferson Powell (George Washington)
Conference papers will be published in Volume 75, Issue 4 of Law & Contemporary Problems. Sponsored by the Franklin Humanities Institute, Washington University School of Law, the John C. Danforth Center on Religion and Politics, and Duke Law School’s Program on Public Law.
An Eminent De Girolami!
Not this one, of course, but I've recently discovered that there is a Cardinal in my genealogical past.
Raffaele Cosimo de'Girolami was a Cardinal (1743-48) during the papacy of Benedict XIV (1740-58). De Girolami (or de Girolami, or the older de'Girolami -- all meaning roughly 'of the house of, or of the family of, Jerome') is, as you may perhaps have guessed, not an especially common name around here. Interestingly enough, it is only a little more common in Italy. After making some familial inquiries with some Tuscan relatives and doing some leg-work, I think I've managed to trace him as an ancestor.
This site says that Cardinal de'Girolami was Prefect of the R.C. of Indulgences (hmmm...not so good...) and Sacred Relics (better!!) and that he founded an academy of theology in a gymnasium in Rome. It also says that he was "a famous theologian" but I suspect fame is being assessed generously.
At all events, if anybody knows about or has heard of anything that Cardinal de'Girolami ever wrote, I'd be most grateful for a comment or note.
Peter Singer embracing moral objectivity?
I recently mentioned a conference at Oxford designed to cultivate a dialogue between Peter Singer and Christian ethicists. Here is the Guardian's coverage, which is fascinating and, dare I say, promising:
[Singer] described his current position as being in a state of flux. But he is leaning towards accepting moral objectivity because he now rejects Hume's view that practical reasoning is always subject to desire. Instead, he inclines towards the view of Henry Sidgwick, the Victorian theist whom he has called the greatest utilitarian, which is that there are moral assertions that we recognise intuitively as true. At the conference, he offered two possible examples, that suffering is intrinsically bad, and that people's preferences should be satisfied. He has not yet given up on preference utilitarianism. Neither is he any more inclined to belief in God, though he did admit that there is a sense in which he "regrets" not doing so, as that is the only way to provide a complete answer to the question, why act morally? Only faith in a good God finally secures the conviction that living morally coincides with living well.
What difference does this make to climate change? Tim Mulgan, professor of moral and political philosophy at the University of St Andrews, explained why ethical objectivism may be vital to making a robust ethical case against environmental degradation. Only a doctrine of creation can affirm that we are fundamentally linked to the natural order manifest on Earth. The fantasy of fleeing this planet, or disappearing into virtual reality, won't actually do. Our island home matters because the lives of human beings go well only when her natural systems go well too.
Wednesday, June 1, 2011
Re-enchanting Re-enchantment
Lawrence Solum has posted on his Legal Theory blog an essay by Yishai Blank (SSRN) in which Blank argues that legal rationality today includes attempts to re-enchant legal theory. He looks to four themes or strategies for this:
the reenchantment of legal formalism, the reenchantment of virtue, the reenchantment of law as art, and the reenchantment of legal authorities.
Ever the Aristotelian, Solum himself doubts that a metaphysically teleological conception of the good is necessary for virtue ethics to inform legal theory.
Of course, Christians would have much to say about Blank's thesis. In the end, I would want to affirm that virtue and "art" are the most hopeful approaches today. I take this from the fact that Christian's have affirmed the apprehension of God in the True, the Good, and the Beautiful. The problem today is that truth is viewed reductively, in terms of scientific/technical rationality. Other modes of reason are marginalized or even driven from the field. This is so evident in contemporary legal thought which mimics the marketplace where the rationality of the sciences and engineers is idolized because if its utility.
Art and virtue appeal because they hold the potential to check the utilitarian mode of reason by pointing to truths that are ineffable, as Christian affirm God to be. For pursuing this project both Blank and Solum are to be commended. But, neither gets it quite right. Blank needs to find the unity of the four approaches--each seeking after a mystery. And, Solum's desire for a non-metaphysically teleological account of virtue reflects the desire to escape the mystery of the person, which is displayed by the beauty of Christ on the Cross
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