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.

Friday, December 17, 2010

It Could Have Been Much Worse: The European Court of Human Rights and Irish Law Restricting Abortion

Yesterday the European Court of Human Rights issued its decision in A, B, and C vs. Ireland, a case in which three women challenged the Republic of Ireland’s law restricting abortion.  (See here).  The court ruled in favor of the third woman, C, but against the other two applicants.

The court found that Ireland had failed to provide an adequate procedure for the exercise of her qualified “right” to abortion under Irish law where the pregnancy presents “a real and substantial risk to the life, as distinct from the health, of the mother.”  The court did not rule in favor of the other applicants who sought abortions for purely elective reasons or for reasons more generally related to “health.”  (For the full text of the court’s opinion see the court’s website here and the opinion in PDF form here).

Indeed, the good news, as William Saunders notes (here) is that the court ruled that “there was no right to abortion under the [European Convention on Human Rights] which is binding on 47 nations.”  This, Saunders further notes “shouldn’t be surprising – the convention never mentions the word ‘abortion.’”  Still, Saunders finds the decision troubling “[w]hen one considers that was no imminent or proven . . . risk of death in this case (only a fear by one of the plaintiffs that her pregnancy could trigger a recurrence of a cancer that might prove fatal), [nor] any directive from the Irish government to doctors to begin ‘prescribing abortion’ in such cases.” 

Even more troubling is the fact that six of the seventeen judges on the court would have ruled in favor of all three applicants.  These judges criticized the deference shown to “the profound moral views of the Irish people” as a “real and dangerous new departure in the Court’s case-law.”  Instead these judges would have found a European consensus that would mandate the availability of abortion on demand.

So, for the moment, Ireland’s principled constitutional guarantee of “the right to life of the unborn . . . with due regard to the equal right to life of the mother” remains intact, if not unchallenged.  Still, to paraphrase Harry Blackmun from Webster, “a chill wind blows” from the Continent.

What is Marriage?

Last week Robby George, Sherif Girgis, and Ryan Anderson posted a new paper, "What is Marriage?"  Kenji Yoshino responds here, calling it "the best argument against gay marriage," but ultimately rejecting it.  George et al. have now replied to Yoshino.

When is "anti-SSM" properly labeled "anti-gay?"

Here's an update on the controversy over Apple pulling a Manhattan Declaration app from its App Store.  I'm more interested in MSNBC's headline for the story.

Thursday, December 16, 2010

Music beyond words

Thanks to Marc for suggsting the book on the Tudors.

This season I am giving a few friends copies of Vladimir Jankelevitch's Music and the Ineffable, in which Jankelevitch argues that music is not a message of coded symbols and rhythms, but a bodily experience that exceeds conceptualization and description. His inquiry into the ineffable was influential for many important thinkers including Emanuel Levinas and Roland Barthes, both of whom, in different ways, reject the description of consciousness that underwrites the Cartesian mind-body dualism. Jankelevitch was also important for Stanley Cavell, who infuenced Fegus Kerr's theological reading of Wittgenstein.  

What other books are we reading and giving? I would love to hear about the books that MOJ'ers have been reading this year. 

The Tudors and Catholicism

G.J. Meyer'sThe Tudors: The Complete Story of England's Most Notorious Dynasty [Deckle Edge] [Hardcover](2010)

I just finished listening in my car to this wonderful history of Henries VII and VIII, Edward VI, Mary I, and Elizabeth I (and all of the supporting cast).  I recommend it -- a deeply critical portrayal of this dynasty, a bit in the style of Eamon Duffy's also quite good The Stripping of the Altars

Part of what makes Meyer's account so interesting is his special focus on the plight of Roman Catholicism in the Tudor era, culminating in a riveting treatment of the slaughter of Edmund Campion, a shining light snuffed out by Elizabeth and her acolytes.  An excellent antidote to the hagiographies of the period in television and the movies that have appeared over the last few years. 

The 2011 World Day of Peace Message—Religious Freedom, the Path to Peace

 

This morning the Holy See released Pope Benedict’s 2011 World Day of Peace Message which develops the theme of “Religious Freedom, the Path to Peace.” The full text in English is available here. This text should be of great interest to contributors to and to readers of the Mirror of Justice. As will become obvious upon reading the text, anyone can see that the issue of religious freedom, often discussed and debated within the context of this web site, is not an issue restricted to an American audience. The matter is of universal concern.

The message begins with a reminder of the cost of religious freedom in the context of the lethal attack on October 31 at the Syro-Catholic Cathedral in Baghdad. To underscore the significance of this brutality and how it defies religious liberty, the Holy Father offered these words: “It is painful to think that in some areas of the world it is impossible to profess one’s religion freely except at the risk of life and personal liberty.” He reminds all that religious freedom is a constitutive expression of something that is unique about the human person, i.e., the desire to direct one’s self to God.

Other important points made by the Holy Father include these:

1. Related to his opening remark is the point that the right to religious freedom is rooted in the dignity of the human person—a theme that has long been a part of Catholic social doctrine.

2. Religious freedom provides the foundation for that moral freedom which enables the person to exercise rights wisely while at the same time acknowledging corresponding responsibilities to others.

3. The family is the first “school” where the importance of religious freedom through religious education first takes place.

4. Religious freedom and the responsibilities that attend to it provide for the formation of the good citizen who exercises citizenship that advances a sound political and juridical culture.

5. Religious freedom, as Pope Paul VI reminded the leaders of the world’s governments at the conclusion of the Second Vatican Council, must retain its vital public dimension. The freedom is meaningless if it cannot be exercised in community and in public.

6. Religious freedom can never be a masquerade for advancing political agendas that undermine the foundation of just civil societies. Authentic religious freedom is a close relative of the search for the transcendent and objective moral order, which is Truth (God’s) itself.

7. Genuine expressions of justice and civility embrace authentic religious freedom.

8. Dialogue between religious and civil societies is beneficial and is an expression of the two citizenships which many people exercise.

9. Authentic religious freedom promotes moral truth in national and international political institutions thereby enhancing understanding and dispelling those narrow prejudices that foster hostility and contradict the durability of a just and lasting peace.

As our predecessor in faith Saint Augustine said, tolle lege, take up and read!

 

RJA sj

 

Wednesday, December 15, 2010

"The Fear of Christmas"

This essay, "On the Fear of Christmas", by Fr. James Schall, S.J., appears at The Catholic Thing and is, I think, worth a read.  Here's a bit:

If Christmas is just a myth, we can let it alone. But what if it is a history, an event, an account of what happened in the time of Caesar Augustus, “when the whole world was at peace?” We do everything possible to prevent ourselves from considering the implications of this fact.

Christopher Dawson once remarked that, on the morning after the Nativity, the leading papers of Jerusalem, Rome, or Athens – had there been such – would not have announced it. It was not important. From the beginning, the Nativity was only known by a few. It is an event that is “too good to be true.” But that is precisely what it is not. It is true. Its good is something we should know and want to know. Indeed, within the Christian corpus is the sometimes upsetting mandate to make this event and its consequences known to “all nations.” Even if they do not want to hear of it? It seems so.

The fear of Christmas is something even more basic, or perhaps more sinister. Why is that? It is one thing simply not to know something because we have never encountered it or thought about it. It is another thing when, having heard of it, we refuse to allow it to be known. We organize our polity in such a way that every obstacle is put in the way of knowing it. . . .

Christmas is a dangerous feast. We fear it. We do not allow ourselves to consider it. Yet, somehow, we still envy those who know this feast of domesticity. “Unto us a Child is born.” “What Child is this?” If this Child is indeed “Christ the Lord,” what happens to us who make every effort to prevent its truth from being known.

I'm not sure why, but I was reminded, after reading the essay, of Mr. Tumnus's observation, in The Lion, the Witch, and the Wardrobe, that Aslan is "not a tame lion."

Fineman on "The Vulnerable Subject and the Responsive State"

Here is a paper that will likely be of interest to MOJ readers (and Alasdair MacIntyre fans?):

"The Vulnerable Subject and the Responsive State" 

Since there is also no U.S. constitutional guarantee to basic social goods, such as housing, education, or health care, the anti-discrimination, sameness-of-treatment approach to equality prevalent in the United States is particularly problematic. The discourse of human rights that supports claims to such goods in European and other countries does not exist in America. We have not ratified many of the international agreements, including those associated with economic rights, as well as CEDAW and CRC. The courts are little help. In fact, attempts to apply human rights ideals internally - to American practices and laws - have been met with resistance, if not outright rejection. Several Justices of the Supreme Court decried references to human rights principles used to bolster arguments about constitutionality under American precedent to be the application of "foreign fads" when (superior) American constitutional provisions should prevail.

My development of the concept of vulnerability and the idea of a vulnerable subject began as a stealthily disguised human rights discourse, fashioned for an American audience. The concept has evolved from those early articulations, and I now think it has some significant differences as an approach, particularly in that a focus on vulnerability is decidedly focused on exploring the nature of the human part, rather than the rights part, of the human rights trope. Importantly, consideration of vulnerability brings societal institutions, in addition to the state and individual, into the discussion and under scrutiny. Vulnerability is posited as the characteristic that positions us in relation to each other as human beings and also suggests a relationship of responsibility between state and individual. The nature of human vulnerability forms the basis for a claim that the state must be more responsive to that vulnerability and do better at ensuring the “All-American” promise of equality of opportunity.

In my view, it should be emphasized that "human rights discourse" certainly does exist in America; it is simply (as Fineman says) a different discourse, one that does not provide strong support for rights-as-entitlements-to-certain-goods, than the one that does provide stronger support for rights so understood.  That said, her emphasis on "vulnerability" strikes me as an important supplement/corrective to an excessively autonomy- or capabilities-based approach to thinking about human dignity, worth, and rights.  (I tried to expand on this point in this essay.) 

Incest is cancer

If concern for the traditional family unit is not enough to justify opposition to same-sex marriage, is it enough to justify opposition to adult incest?  Will Saletan makes the case for continuing the moral taboo against adult incest, even if our society has grown less comfortable condemning decisions between consenting adults pertaining to sex.

Waldron quote of the day

In the paper I linked to earlier today, Jeremy Waldron challenges secularist premises regarding the nature of religious argument on controversial political issues:

The secularist view seems to be that a person of faith engaged in a political debate will – if he is allowed – simply cite some verse of scripture which he finds dispositive of the issue and then stand pat, impervious to argument.

[However, w]hen I read the Catholic case against gay marriage, for example, I am not convinced by it; but I find there is very little Leviticus-quoting or invocation of papal authority. What I read are elaborate tissues of argument and reason, open to disputation and vulnerable in the usual way to quibble, rejoinder, and refutation. . . . [A]ctually what’s infuriating about people like Finnis is not any adamantine fundamentalism but their determination to actually argue on matters that many secular liberals think should be beyond argument, matters that we think should be determined by shared sentiment or conviction. My experience is that many who are convinced of the gay rights position are upset more by the fact that their argumentative religious opponents refuse to take the liberal position for granted than they are by the more peremptory tactics of the “bible-bashers.”