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.

Saturday, May 21, 2011

Another take on the Oklahoma Conference

One of the many surprising aspects of the Oklahoma conference this year was the frequent discussion of technology. As Elizabeth observed, Meghan Ryan spoke of "scientific management" of criminal behavior. Lisa is referring to Meghan's useful description of the impact of new neuroanatomy for understanding and manipulating brain function and the challenges it poses in the criminal law area. Elizabeth didn't point out that Jeff Pojanowski referred to artificial intelligence and the post-human future in his talk. Steven Smith mentioned these aspects of Meghan's and Jeff's talks in his comments.

These challenging new developments portend many social problems that will  become critical in the next few decades. As Rick suggests, conceptions of the person hold significance for moral issues because often these turn on questions about what human beings do, how they reason, and what resources they have available to alter themselves and their environment. Technologies that alter our understanding of person and allow for manipulation of personality will be among the most contentious because the go right to the core conception of what it is to be human.

Engaging others who have commitments to abstract conceptions of moral value that differ from substantially from those of Catholics was a central theme in the conference. For me, an important thought to emerge from our discussions, particularly following Elizabeth's presentation, was that one ought not engage others at levels of abstraction that exceed what is necessary for resolving immediate disputes. Which is to say, that since comprehensive normative claims about the person are not relevant to every dispute, prudential judgement should be employed to resolve disagreements without reference to them. 

But, this suggests that the types of issues raised by the neuroscience and post-human issues that Meghan and Jeff pointed out are likely to be the most contentious in the future. Brain imaging technology and the ability to manipulate the mind through surgical and pharmacological intervention contributes immensely to the treatment of persons suffering from brain injury, disease, and mental illness. And, these treatments are of great moral worth. These technologies challenge the Catholic understanding of the person precisely because they sweep away what have been mysterious aspects of the mind. There seems little doubt that our understanding of the person will be enhanced by this work in the natural sciences, and yet it will challenge traditional understanding of the dignity and moral worth of the person.

I believe, as John Breen noted in his excellent presentation, that the Catholic faith has much to offer in guiding reason to wisdom. But, the future looks complex and challenging.

Friday, May 20, 2011

Oklahoma, O.K.!

Kudos to Michael Scaperlanda and Brian McCall at the University of Oklahoma's College of Law for hosting a superb three days of scholarship and fellowship.  The 6th Annual Conference of Catholic Legal Scholars, as Rick noted, began with an afternoon of thinking about Augustine with Duke theologian Paul Griffiths, and ended with a morning of thinking about the rhetorical smuggling of modern discourse with USD's Steve Smith, discussing his The Disenchantment of Secular Discourse.  Purely as models of elegance -- in their writing, the clarity of their thought, and the manner of their engagement -- it's hard to top those two.

As usual, these meetings are marked by the communion and engagement of the audience, as well as the quality of the 'formal' presentations.  Perhaps it has something to do with the opportunities for spiritual reflection (this year including a mass celebrated  by UST's  Reggie Whitt and Ignatian spiritual reflections led by Boston College's Greg Kalscheur), but the conversations after and between the panel presentations, both in the question and answer sessions and during the social times, are exceptionally rich and wide-ranging.

I was particularly intrigued by the conversation surrrounding the panel on "Forgiveness and Conversion:  What should be the law's attitude toward and treatment of post-conviction criminals."  Building naturally on Paul Griffith's remarks on Augustine's reflections about the role of mercy in intercessions of bishops on behalf of convicted persons in the Roman empire of the 400's, UST's Mark Osler talked about the shrinking sphere of mercy in our criminal system, including the decreasing invocation of pardon power by executives.  UST's Susan Stabile added a fascinating reflection about the extent to which the expanding tort of 'negligent hiring' hinders the application of 'mercy' for convicted felons trying to reenter the workforce.  And a relative newcomer to the legal academy, SMU's Meghan Ryan, offered some intriguing observations about developments in scientific 'management' of criminal behavior, and what those developments might mean for our concepts of culpability and rehabilitation.

Two other relative newcomers to the legal academy also offered excellent commentary on Steve Smith's book -- John Inazu (currently visiting at Duke, starting at Wash U this fall) suggested, among other things, that Steve should incorporate more Hauerwas, and Notre Dame's Jeff Pojanowski suggested Steve should incorporate more Scandinavian legal realists.....  It was quite a conference!

"What is a Person?"

Here is a nice interview with my friend and colleague, Christian Smith, about his new book, What Is a Person?  A bit:

What is a person? And why does it matter how we answer that question?

Every social science explanation has operating in the background some idea or other of what human persons are, what motivates them, what we can expect of them. Sometimes that is explicit, often it is implicit. And the different concepts of persons assumed by social scientists have important consequences in governing the questions asked, sensitizing concepts employed, evidence gathered, and explanations formulated. We cannot put the question of personhood in a “black box” and really get anywhere. Personhood always matters. By my account, a person is “a conscious, reflexive, embodied, self-transcending center of subjective experience, durable identity, moral commitment, and social communication who — as the efficient cause of his or her own responsible actions and interactions — exercises complex capacities for agency and inter-subjectivity in order to develop and sustain his or her own incommunicable self in loving relationships with other personal selves and with the non-personal world.”

Persons are thus centers with purpose. If that is true, then it has consequences for the doing of sociology, and in other ways for the doing of science broadly. Different views of human personhood will provide us with different scientific interests, different professional moral and ethical sensibilities, different theoretical paradigms of explanation, and, ultimately, different visions of what comprises a good human existence which science ought to serve. In this sense, science is never autonomous or separable from basic questions of human personal being, existence, and interest. Therefore, if we get our view of personhood wrong, we run the risk of using science to achieve problematic, even destructively bad things. Good science must finally be built upon a good understanding of human personhood. . . .

Yup.  As I put it, in this paper, "moral problems . . . are anthropological problems, because moral arguments are built, for the most part, on anthropological presuppositions. In other words, . . . our attempts at moral judgment tend to reflect our foundational assumptions about what it means to be human."

". . . and then there were none."

Sobering (I think) news from the U.K. (HT: the Institutional Religious Freedom Alliance):

Until a few years ago, there were a dozen Catholic adoption agencies in England and Wales.  But in 2007 Equality Act regulations came into effect, banning discrimination on the basis of sexual orientation.  Six of the agencies secularized themselves, cutting their ties with the Church and changing their standards for evaluating suitable placements.  Five of the agencies, unwilling to change their faith-based standards, instead stopped providing adoption services.  One agency, Catholic Care in the Diocese of Leeds, decided to fight the new requirement, seeking an exemption.

Alas, on April 26th, Catholic Care lost again in the final stage of its two-year battle to be able to keep providing adoption services in accordance with Catholic Church teachings.  So now there are none.  Difficult to see in that a great victory for tolerance, children, families, and gay persons. 

"God and Terror"

A (typically) thoughtful piece by Tim Shah, Dan Philpott, and Monica Toft:

. . . [R]eligion has made a political comeback, abetted by globalization, democratization, and technological development. Those religious actors who are most closely integrated with state authority and who hold a political theology that calls for state sponsorship, the subordination of minorities, and the use of violence are most likely to be violent. Those who have remained independent of state authority and carry a political theology that prescribes democracy, peace, and reconciliation are most likely to be peaceful and democratic.

This argument has important implications for U.S. foreign policy. First, quite simply, it is essential that foreign policymakers come to understand better that religion is not going away—the 21st century is God’s century. Whether or not one likes religious actors, they are here to stay. The issue is not whether but when and how religious actors will enter public life and shape political outcomes. Second, better understanding the forces that shape the politics of the religious can help the U.S. pursue its goals of democratization, stability, and fighting terrorism more effectively. The U.S. would know better which religious actors are likely to support these goals, which are likely to be its allies, and which are likely to stand in the way. . . .

Some unabashedly universalistic claims can be derived from this argument, as well. Namely, where government and religion lack institutional independence, the result is likely to be conflict, whereas independence is a precondition for democracy and a mediating influence. Thus it seems that a healthy institutional independence between religion and state is good for everyone, everywhere. This carries with it an important lesson for policy. While it does not mean that the U.S. ought to replicate exactly the first amendment of the Constitution, it does mean that a healthy secularism of separation is better for democracy, human rights, and peace, on one hand, and for the flourishing of religion, on the other. The U.S., therefore, should be highly reluctant to support authoritarian secular regimes on the argument that they are needed to marginalize religious actors—as the U.S. did for so many years in the Arab world. . . .

Perp Walks and the American Zest for Humiliation

The perp walk of Dominique Strauss-Kahn has attracted much criticism in France and in parts of the United States. It is hard to avoid the view that perp walks are designed to aggrandize the prosecutor in reckless disregard of (or with the hope of) the possibility of contaminating the jury pool. But the American perp walk practice is objectionable on other grounds as well. The people of Norway understand this and take it to extreme lengths. Norway forbids the publication of photographs of an arrested or convicted person going in or out of a courtroom or courthouse (conceptually perp walks fare no better).

Last year in Egeland v. Norway, a woman was convicted in a brutal triple murder. She was photographed in tears leaving the courthouse. Those responsible for publishing the photographs were convicted. The core idea of the prohibition is that those so photographed are in a reduced state of self control and considerations of human dignity mandate privacy. The convictions were upheld in the European Court of Human Rights against the claim that the Norwegian statute offended freedom of press.

The American practice is to allow the publication of such humiliating photographs in the interest of entertainment; Norwegians believe that such entertainment is beneath basic considerations of humanity.

Circle of the Avaricious

Here.  Apparently the salary at Ropes & Gray was inadequate.  Plutus is leering.

Harold Koh on the Legal Explanation for Killing Bin Laden

In light of some of our previous discussions involving the targeted military killing of Osama Bin Laden (e.g., here, here, here, and here), I thought I would point readers to Professor Koh's (now at DOS) explanation at Opinio Juris.  I am not an expert in the law of armed conflict, but it is interesting to me to see two different sorts of explanations at work in Professor Koh's post -- one dealing with self-defense (sounding some of the themes that Eduardo raised earlier -- and suggesting to me that he was probably onto something, and that my strong skepticism of the self-defense model may not be right) and another dealing with the independent sufficiency of the fact -- apart from any issue of self-defense -- that we are in an "armed conflict" with al-Qaeda (reminiscent of some of the points that Greg and I, I think, were making).  I am thinking of this statement in particular: "But a state that is engaged in an armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force." (emphasis mine)  Take a look.

ADDENDUM: I should note that Koh is speaking here in his official capacity within the United States government.  And on the issue of self-defense, there is the tricky little problem of the killing having occurred on Pakistani soil, which Professor Koh does not address.  Apart from the question whether the rules of international law permit the use of "self-defense" under such circumstances, there is the fundamental issue about whether it is in the very nature of "self-defense" that the harm to "self" must be imminent.

Thursday, May 19, 2011

The Cornel West I Know

The Washington Post reports that Cornel West has come under severe attack from supporters of President Obama for his criticisms of the President and his advisors and policies.  See here:

http://www.washingtonpost.com/todays_paper/A%20Section/2011-05-19/A/6/20.0.3179160063_epaper.html

Of course, Professor West is criticizing Obama from the left, not the right.  He believes the President is failing to make good on his promises to progressives to prioritize the needs of poor and working class people.  He is also deeply critical of Obama's foreign and military policies, including the use of military drones.  (Although drones were used during the Bush years, their use, as West has noted, has massively increased under Obama.)

Professor West's comments about President Obama's attitudes towards his own racial identity have drawn the fire of conservatives, such as my good friend Pete Wehner and Rush Limbaugh, as well as from President Obama's liberal defenders.  There have also been accusations, coming from both the conservative and liberal sides, that West's comments stem from racist attitudes of his own.  Likewise, there have been insinuations that West merely pretends to care about the poor, while personally living in luxury in upscale places like Cambridge, Massachusetts and Princeton, New Jersey.

It goes without saying that Cornel West and I disagree on many important questions, so I will not labor that point.  But I do know Professor West, and know him very well.  He and I regularly teach together and we have frequently traveled together for discussions and debates.  I have had the opportunity to observe his interactions with people of every race, class, and social condition.  I have been with him in meetings with billionaires in their private mansions, and I have been with him in meetings with children of impoverished, often drug-addicted single mothers at a school in an inner city neighborhood that was so dangerous that I was frightened to be there.  I have criticized some of his ideas and received from him criticism of some of mine.  The two of us have sat up late together exploring important existential questions to which neither of us pretend to have answers.

I say all this to make the following points.  (1) Whether Cornel West is right or wrong to advocate progressive policies as the solution to the problems of poor and working class people, there can be absolutely no doubt that his advocacy of those policies stems entirely from his profound concern for the least, the last, and the lost.  He is a man of deep compassion.  There is an old joke about liberals loving poor people in theory while caring not at all for actual, flesh and blood poor people.  The joke does not apply to Cornel West.  I have witnessed him giving money to poor people---big bills, not small ones.  I have witnessed him giving his time and attention to poor people--ungrudgingly.  I have watched as he listened to them, thoughtfully and compassionately.  When he and I were invited to that school in a dangerous neighborhood, I gulped before agreeing to go.  He went unhesitatingly.  This was not an event that was going to draw publicity.  He was not there to "look good," or to look like a "good progressive."  He was there, and he wanted me to be with him there, because he thought we could do something, model something worthwhile, for those precious, deeply vulnerable young people.

Which brings me to point (2).  What he wanted to model was a discussion for poor black children between a black scholar and a white scholar, a liberal (or, as he would prefer, progressive) and a conservative.  He wanted the children to hear from a white scholar who happened to be a conservative whose ideas about social and economic policy, personal responsibility, affirmative action, and morality should be thoughfully and fairly considered.  From the outset, he made it clear to the students that his views were not to be favored over mine because he was black and I was white.  He acknowledged in the most forthright manner that our motivations were the same---to lift people out of poverty, to uphold their dignity, to honor their supreme worth as creatures made in the image and likeness of God---though our ideas about public policy differed.  My arguments and his were to be assessed on the merits, not on the basis of race.  He did not want the young people to persist in believing, as some---perhaps many---did, that conservatives believe what they believe because they are mean, or racist, or uncaring.

This is the Cornel West I know.  This is the Cornel West with whom I teach and work.  This is my dear friend.  Is he a fierce critic of many of the positions I and other conservatives hold?  Sure he is.  But he is also someone who is willing to consider the possibility that his own views are in need of revising.  He worries that certain positions that have become established orthodoxies on the left may in fact be wrong---even profoundly unjust.  Moreover, not once in the classroom, or in our many, many intense discussions, public annd private, or for that matter in any of my dealings with him, has he played the race card.  Never has he tried to win an argument by stigmatizing his opponent as a racist or bigot.  When others have resorted to such tactics in his presence, he has called "foul."  What is more, never have I seen him treat a student or anyone favorably or unfavorably because of his race.  Rather, I have seen an unfailing and impressive generosity of spirit toward all.

As for Professor West's criticisms of Barack Obama's policies and his remarks about the President's sense of his own racial identity, readers will have to judge for themselves.  I hope that MoJ readers, conservatives and liberals alike, will consider those criticisms and remarks in light of what I have reported from direct personal experience about Cornel West as a human being.  As my friend gets attacked from both sides of the political spectrum, I suspect that some who know what kind of man he truly is will go suddenly silent as he is accused of all sorts of bad things, fearing that they might be tarred with the brush if they speak up.  I hope I'm wrong about that.  In any event, it seems to me that this is a moment when it is my duty to state the truth about the Cornel West I know.

Death of the Library

This is a melancholy and sensitive short piece by the poet and essayist Charles Simic on the closing of libraries in this country.  When I was a kid, I spent long periods of time in the local library where I grew up, and some of Simic's reflections about the nature of library reading -- a kind of leisurely macerative quality -- rang true for me.  My most recent extended library experience was at the New York Public Library tracking down some 19th century British articles and magazine pieces on microfiche.  That was fun too (what a library!), but more like the sort of directed reading that one does on the Internet.  I wonder whether libraries will still exist for my children's children.