Friday, November 12, 2010
This past Tuesday evening I had the great pleasure of taking part in a dinner celebrating the twentieth anniversary of the Arab American Bar Association of Illinois. I am a founding member of this organization and currently serve as its vice-president. The reason for this is that, notwithstanding my pale white skin, dull blue eyes, and Irish last name (inherited from my Belfast born father), I am, in fact, part Arab. My maternal great-grandparents, Joseph George and Helena Mansour, immigrated to the U.S. from Bsharri, a Maronite village in the north of Lebanon, close to the cedar forests for which the country is so famous, and proudly so.
The Arab Bar Association is a wonderful group of men and women who trace their roots to countries throughout the Arab world, from the Levant, to the Gulf, to North Africa. Like similar organizations, the bar provides its members with opportunities to engage in networking, continuing education, and judicial evaluation. The constituency of our bar is about half Muslim and half Christian, and so, although the organization is not religious, it has a distinctively interreligious quality about it. The legal profession and the practice of law serve as a common meeting place where we can come together as members of one community, even as we recognize and respect our differences.
One of the most uplifting things about the Arab Bar is that it serves as a counterpoint to the hateful caricature of Arabs present in our culture – a caricature that existed long before 9/11. The bar provides a positive image of Arab Americans as members of a learned profession dedicated to public service and the rule of law. Thus, we were honored to have Ray LaHood, longtime Congressman from Peoria and now Secretary of Transportation in the Obama Administration as our keynote speaker on Tuesday night. The Arab Bar is also in dialogue and collaboration with other ethnic bar associations, and I was honored to have the president of the local Decalogue Society seated at my table.
Sadly, Christian communities throughout the Middle East have been under increasing pressure to abandon their homelands and relocate to the West for a number of years. We witnessed an especially bloody example of this pressure recently with the massacre of over fifty people including two priests at a Syrian Catholic Church in Bagdad last week and the murder of more Iraqi Christians this week (see here and here).
The recent Special Synod of the Bishops of the Middle East produced a document that addresses the complex situation in which Catholics (Maronite, Melkite, Syrian, Chaldean, Coptic, Armenian, and Latin Rite) find themselves in that part of the world. (The Synod’s preparatory document is here and its closing statement is here). The closing document forthrightly demands the right to religious freedom for Christians and others in these predominantly Muslim countries. It also calls for a just resolution of the Israeli-Palestinian conflict, a point that has aroused no small amount of criticism (see here, here, and here).
The views expressed by the bishops do not reflect, as some critics have suggested (here), a kind of naïve optimism for a utopian future in the region once a Palestinian state is established. The bishops are well acquainted with the mortal threat posed by Islamic extremism in the Holy Land and other countries in the region. They witness it everyday. Instead, the document reflects the reasonable parameters of compromise necessary to achieve a just peace – the only kind of peace that will be lasting. These are in keeping with what both John Paul II and Benedict XVI have said with respect to the conflict and how it should be resolved.
The people of Israel are our brothers and sisters, and when they are the victims of terrorism, whether from Katyusha rockets or suicide bombers, their blood cries out to heaven for justice. The same is no less true when Arab blood is spilled by fellow Arabs (whether Muslim or Christian), or by Israelis. This is not to suggest some kind of moral equivalence between acts of terrorism and acts of self-defense. It is to suggest that not every Israeli action can be rightfully described as an act of self-defense. To say as much is not to wallow in the gutter of anti-Semitism. It is to say that the actions of every nation may be subject to scrutiny and criticism, and where appropriate, condemnation. No one is above reproach.
Israel is a member of the family of nations. She has a right to exist in peace and security within internationally recognized borders, but she does not have the right to dictate what those borders should be in a unilateral fashion.
I am no apologist for Palestinian and other Arab violence against Israelis and Jews, but neither do I wish to indulge in the Israeli exceptionalism that typifies discussion of the Palestinian-Israeli dispute in the United States.
The Catholic bishops of the Middle East have provided a fresh starting place from which to begin the conversation—one that will be new to many Americans, one that is consistent with the principles of Catholic social teaching. For those interested in the real world implications of this teaching, the document is well worth considering.
"Almost 80 years ago, G. K. Chesterton, the English essayist, observed the following about a jury: Our civilization has decided, and very justly decided, that determining the guilt or innocence of men is a thing too important to be trusted to trained men. It wishes for light on that awful matter, it asks men who know no more law than I know, but who can feel the things I felt in the jury box. When it wants a library catalogued, or the solar system discovered, or any trifle of that kind, it uses up its specialists. But when it wishes anything done which is really serious, it collects twelve of the ordinary men standing round. The same thing was done, if I remember right, by the Founder of Christianity.Gilbert K. Chesterton, Tremendous Trifles: The Twelve Men (New York, Dodd Mead and Company, 1922) at p. 86-87." United States v. Diggs, 52 M.J. 251, 256 (C.A.A.F. 2000)
HT: Brandon Hale
So argues Helen Alvare, in this piece, published at Public Discourse. (The piece is adapted from her remarks at the recent "Open Hearts" conference at Princeton.) Here's a bit:
Questions about “abortion and the law” are usually seen as matters of constitutional law. Constitutional law, however, seems ill-suited. This is not only because the U.S. Supreme Court discovered a “constitutional right” for something that had been banned by most states for most of the nation’s history. It is also because the “privacy” right encompassing abortion frames the issue as a struggle between the state and the woman over her right to define her life, her future, or even her “concept …of the universe,” in the famous words of the Casey Court. But it is becoming increasingly apparent that abortion is about family relationships, not simply a contest between the state and a woman who happens to be pregnant. Scientific discoveries about human development and the testimonies of women who have had or have considered an abortion suggest that it is family law rather than constitutional law that provides the best means of understanding the issue of abortion.
“Let me make no bones about it: I write from the standpoint of Christian orthodoxy. Nothing is more repulsive to me than the idea of myself setting up a little universe of my own choosing and propounding a little immoralistic message. I write with a solid belief in all the Christian dogmas. I find that this in no way limits my freedom as a writer and that it increases rather than decreases my vision. It is popular to believe that in order to see things clearly one must believe nothing…. To believe nothing is to see nothing.”
(March 17, 1956)
Thursday, November 11, 2010
I love this quote from the late lefty Dominican Herbert McCabe, profiled in the current Commonweal. He advocated socialism, he wrote, "not because I am a Catholic but because I am a socialist." We I may tend to overemphasize the explanatory power of my faith; it does shape me, but it only defines me in conjunction with many other factors.
There are many things wrong with the values reflected in American political culture and yes, some of those wrongs have become even further entrenched under President Obama. But for whatever else he accomplished that was good, President Bush's legacy will always carry a significant black mark for (among other things), his cowboy-cavalier attitude with which he disregarded the human dignity of non-Americans in the course of carrying out a war against terror. Exhibit #235 [deleted as unnecessary snark] comes from his memoir:
Bush recounts being asked by the CIA whether it could proceed with waterboarding Mohammed, who Bush said was suspected of knowing about still-pending terrorist plots against the United States. Bush writes that his reply was "Damn right" and states that he would make the same decision again to save lives . . . .
The notion that waterboarding saved lives has been denied by our allies. As for whether this all turns on good-faith hand-wringing about whether waterboarding amounts to torture, David Luban explains:
The legal definition of torture is just twenty years old, and - to say the least - torture cases raising the issue of where to draw the boundary between "severe" and "not severe" aren’t popping up on the dockets of courts the world over like slip-and-fall cases. This isn’t a question for lawyers. This is a question of common sense. Let’s stop being ridiculous.
So: does waterboarding inflict severe suffering? If you want to do a quick, common-sense reality check, try this. Blow all the air out of your lungs. Then stare at your watch and try not to inhale for ninety seconds by the clock. Then take one quick half-breath and immediately do it again. Now imagine that you’re tied down while you’re doing it and water is pouring over your head and rolling up your nose. Or, if you’re really ambitious, get in the shower and turn it on and try the same hold-your-breath-with-no-air-in-your-lungs experiment with your head tilted up and the water pouring up your nose. Then decide for yourself whether it’s severe suffering.
On some issues, President Bush has been targeted for blame unfairly. This is not one of them.
It has been a couple of days since a jury decided on the death penalty for one of the two men who invaded the home of a Connecticut family, tortured and brutalized them, raped the mother and daughters, and slaughtered all but the father. I've been reflecting on why there hasn't been much commentary in the legal blogosphere about the incident, an exceptionally horrible one factually. My guess is that the lack of attention would be explained by the absence of any "legally" important question. But two responses occur to me. First, since when has that ever stopped people from commenting. Second, and much more important, I don't think it's remotely true that the incident does not raise important legal questions; apart from the death penalty issue (a perennial favorite of legal academics), there is the horrible brutality of the incident itself.
I can anticipate that the response to that last point might well be -- but there's nothing of real academic interest for criminal law scholars in reflecting on horrifying facts. And I think that's exactly right, but only as a descriptive account of the discomfort that legal academics feel when confronting what I want to call "the core" of the criminal law.
By "the core," I should first make clear what I don't mean. I don't mean that all criminal acts partake of the core, or that to be "criminal" is to be within the core (that is, I don't mean something like a Rawlsian range property). Clearly there are many criminally proscribed acts which do not share the attributes of the core. I also don't mean that there is anything focal or of the essence of the core -- something that makes the core more essentially "criminal" than other acts which are not at the core but are also criminal. (I take this to be something like John Finnis's description of focal cases of law in NLNR).
Instead, the core of the criminal law is merely a feature of certain kinds of criminality, a trait, sometimes present, sometimes not, but rarely (if ever) existing in other legal contexts. The core of the criminal law concerns acts which powerfully elicit visceral fear and hatred because of their transgressiveness -- their violation of the most deep-rooted interdictions. What makes these acts "core" is that they are legally unique insofar as they dredge up these sentiments. Law students will not encounter them in civil procedure, or contracts, or property, or even torts (though perhaps certain kinds of intentional tort come close). The core elicits an overpowering sense of foreboding, of terror, and even of rage at what must not be done.
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“To see Christ as God and man is probably no more difficult today than it has always been, even if today there seem to be more reasons to doubt. For you it is a matter of not being able to accept what you call a suspension of the laws of the flesh and the physical, but for my part I think that when I know what the laws of the flesh and the physical really are, then I will know what God is. We know them as we see them, not as God sees them. For me it is the virgin birth, the Incarnation, the resurrection which are the true laws of the flesh and the physical. Death, decay, destruction are the suspension of these laws. I am always astonished at the emphasis the Church puts on the body. It is not the soul she says that will rise but the body, glorified…. The resurrection of Christ seems the high point of the law of nature.”
(Sept 6, 1955)
