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.

Monday, June 14, 2010

What's "borderline despicable" ... or just plain despicable?

A new low in our politics?  Or would it be naive to think so?

Read about it here.

Who's "Chosen"? Jews? Americans? Catholics?

Sightings 6/14/10

Chosen People

-- Martin E. Marty

The grand theological themes don’t fade or disappear from headlines or prime time.  “Being chosen,” as in the case of biblical or modern Israel, is the grand theological theme today.  My clippings and blog-printout file bulges with records of renewed debates over what it means to be a “chosen people,” and whether Israel today should make use of the concept.  Perhaps the most widely-known recent controversy was inspired by Michael Chabon’s “Chosen, but Not Special” op-ed in The New York Times (June 6).  Identified only as author of The Yiddish Policemen’s Union, Chabon spends no time on the biblical concept.  His theme is the Yiddish word “seichel,” which, he says, means “ingenuity, creativity, subtlety, nuance.”  Seichel has helped Jews as a people to survive, but Chabon thinks it has been lacking in recent highly-publicized actions by Israel.

No self-hating Jew, Chabon does say that “we Jews” are not always comfortable living with the consequences of the myth of “seichel.”  Now to the point:  This is “the foundational ambiguity of Judaism and Jewish identity:  the idea of chosenness, of exceptionalism, of the treasure that is a curse, the blessing that is a burden…To be chosen has been, all too often in our history, to be culled.”  Chabon does not mention it, but I recall a grimly humorous or humorously grim prayer by a rabbi who thanks God for having chosen Israel but then, reflecting on “the burden” that goes with this, asks God next time to choose some other people.

Plenty of other people have seen themselves as chosen.  Most theologically nuanced was Abraham Lincoln’s word for Americans:  “an almost chosen people.”  Of course, there are no biblical roots for calling citizens of the United States a “chosen people,” nor were there for the English, from whom Americans, including many of our founders, inherited the myth.  Such myths, like Lincoln’s word about the United States being “the last, best hope of earth,” can be empowering and ennobling, but they can also issue in arrogance, imperial swaggering and destruction.

Back to Israel’s issue:  We non-Jews do not have to settle the debates internal to Judaism and Israel on this subject.  But non-Jews such as the almost-chosen Americans do have much at stake.  The Jewish paper Forward on May 21 published John C. Hagee’s “Why Christian Zionists Really Support Israel.”  Evangelist Hagee was a counselor to Presidential candidate John McCain’s team for five minutes during the 2008 campaign, until the team leaders caught on to the consequences of any Hageean embrace.  Hagee assures Israel that it can count on Christian Zionists, no matter what it does:  “Our support for Israel starts with God’s promises in the Hebrew Bible,” which many of this school of thought translate to the idea that the United States must help assure that Israel will own all the land within some boundaries mentioned in “the Hebrew Bible.”

Non-Jews will not understand Jews who have a sense of history unless they understand how central “the Land” is in their thought.  But they can chafe – as many of us confess to have done years ago – when chided for not believing that Israel’s chosenness had to be an article of Christian belief today, and that non-belief was anti-Semitism.  Chabon repeated the many reasons for identifying with Israel that are political, moral, strategic and empathic.  But such identifying does not need to become creedal, as it does in the world of Christian Zionists and their more moderate allies.  “Get over it” is part of Chabon’s message, and then “get on with it” implies more pragmatic consequences.

References:

Read Chabon’s piece here: 

http://www.nytimes.com/2010/06/06/opinion/06chabon.html?scp=1&sq=chosen,%20but%20not%20special&st=cse

 Read Hagee’s piece here:  http://www.forward.com/articles/127965/

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Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.

Legal Ethics and Moral Character

I highly recommend a new paper, Legal Ethics and Moral Character, by Brad Wendel and Alice Woolley.  Legal ethics discourse is traditionally focused on coming up with a theory that explains and justifies the lawyer's role; Wendel and Woolley ask what a particular theory tells us about what kind of person a lawyer should be.  In other words, they're trying to expand the focus from "What should a lawyer do?" to "How should the lawyer be?"  I do not agree with every aspect of their analysis, but this is an important contribution to the debate.  (And yes, they are part of a very select group of legal ethics scholars to quote MacIntyre!)  The paper also serves as fertile ground for reflection among MoJ-ers:  would Catholic legal theory suggest an ideal lawyer who looks significantly different from the ideal lawyer who would emerge from the dominant professional paradigm(s)?  If so, in what way(s)?  

Friday, June 11, 2010

"In Memo, Kagan Took Broad View of Religious Freedom"

"WASHINGTON — As a young White House lawyer, Elena Kagan wrote that it was 'quite outrageous' for the government to force a landlord to rent an apartment to an unwed couple if doing so violated the landlord’s religious beliefs against cohabitation outside the bonds of marriage. . . .

Among the documents were several concerning religious-freedom issues, which are often hotly disputed in Washington. The Aug. 4, 1996, memorandum on the case of the landlord, for example, put Ms. Kagan on the side of advocates for a broader interpretation of religious freedom, even at the expense of an antidiscrimination law.

The case involved a California woman who refused to lease an apartment to an unmarried couple because she considered a sexual relationship outside marriage to be a sin. The California Supreme Court ruled that she violated a state law prohibiting housing discrimination on the basis of marital status.

Ms. Kagan objected to the California court ruling and recommended that the federal government support an appeal to the United States Supreme Court. She noted that the plurality of California justices ruled that the state housing law did not 'substantially burden' the landlord’s religion 'because she could earn a living in some other way than by leasing apartments.'

'The plurality’s reasoning seems to me quite outrageous — almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another state,' Ms. Kagan wrote. 'Taken seriously, this kind of reasoning could strip RFRA of any real meaning.'

The abbreviation referred to the law’s formal name, the Religious Freedom Restoration Act of 1993. The law was intended to counter a Supreme Court decision permitting states to penalize someone for using the drug peyote, even as part of a religious ritual. While the court did not take the California case that Ms. Kagan wrote about in 1996, it did strike down the religious freedom law’s application to the states in another case the following year."

Here for the rest of this interesting NYT article.

Thursday, June 10, 2010

Dear Rob, about that Rorty quote:

Given his conception of rationality, Rorty wouldn't say that, e.g., creation science is irrational either.  So for Rorty to say what he did about Christian theism shouldn't be misconstrued as a compliment to Christian theism.

By the way, what *is* Rorty saying in the quote:  that Christian theism is not irrational--or that it is "no more irrational" than atheism.  Like you, I assume he's saying the former, not the latter.  But, again:  not a compliment--or not much of one.

Quote of the day

I just ran across this quote from Richard Rorty:

I do not think that Christian theism is irrational.  I entirely agree . . . that it is no more irrational than atheism.  Irrationality is not the question but rather, desirability.  The only reason I can think of for objecting to Christian theism is that a lot of Christians have been bigoted fanatics.  But of course, so have a lot of atheists. . . . Atheism is more practical only if you wish to form a pluralistic, democratic society.  In that situation, the persistence of the theist who claims to know that this or that is against God's will becomes a problem.  So atheists find themselves wishing that these groups would wither away.

(Stephen Louthan, "On Religion -- A Discussion with Richard Rorty, Alvin Plantinga, and Nicholas Wolterstorff," 27 Christian Scholar's Review 178, 183 (1996))

Wednesday, June 9, 2010

Hauerwas (and Sandel) on Singer's Question

Stanley Hauerwas provided what I think is the best response to Peter Singer’s question in an article he wrote back in 1977, called “Having and Learning to Care for Retarded Children.”  [Which you can find in a great collection edited by John Swinton, Critical Reflections on Stanley Hauerwas’ Theology of Disability , Haworth Pastoral Press (2004).]   Hauerwas argues that viewing our children as choices, rather than gifts, is corrosive.  As Christians, he argues, we should understand that we have children because we are commanded to, and we follow that command because we accept that God’s creation is good.  He writes that children are our “promissory notes”, our sign to the present and to the future, that we trust God and his creation.  In his words:

[O]ur having children draws on our deepest convictions that God is the Lord of this world, that in spite of all the evidence of misery in this world, it is a world and existence that we can affirm as good as long as we have the assurance that He is its creator and redeemer . . . Children are thus our promissory note, our sign to present and future generations, that we Christians trust the Lord who has called us together to be his people. . . .

Once having children is put in the context of this story and the people formed by it we can see how inappropriate the language of choice is to describe our parenting.  For children are not beings created by our wills – we do not choose them – but rather they are called into the world as beings separate and independent from us.  They are not ours for they, like each of us, have a Father who wills them as his own prior to our choice of them.

Thus, children must be seen as a gift, for they are possible exactly because we do not determine their right to exist or not to exist . . . . [G]ifts come to us as a given they are not under our control.  Moreover, they are not always what we want or expect and thus they necessarily have an independence from us.

Insofar as gifts are independent they do not always bring joy and surprise, but they equally may bring pain and suffering. 

I think Hauerwas is right.  We have to understand our children as gifts, rather than choices.   Singer’s question is ultimately about whether or not we trust the goodness of creation and of our Creator.

Of course, Michael Sandel, in The Case against perfection , argues that it is possible to hold a vision of humanity based on this same notion of ‘giftedness’ that has nothing to do with God, that is based instead on the moral concepts of humility, responsibility, and solidarity.  I’m not so certain he succeeds, but I do think he’s on the right track.

Bess on Building

The "urbanist" work of my friend and colleague Philip Bess is well known, I suspect, to most longtime MOJ readers.  Here, thanks to Public Discourse, is an adaptation of his recent speech, "Toward a Renewed Culture of Building":

[E]ven modern human beings fare better in good places. Indeed, persons best able to successfully navigate the changes and uncertainties of the modern world and of life itself are most often those persons most deeply rooted in stable families in good places. And this suggests a true rationale for traditional building even in the context of the modern world: A durable and beautiful built environment provides the best physical and spatial context for human life, and thereby supports the different kinds of inventiveness and daring that modern life demands. If one grows up in a loving family in a good home in a good town or city, one is likely to carry within oneself a foundational sense of home throughout one’s entire life, whatever other uncertainties, dangers and adventures life presents. Making places in which we are able to be at home in the world—even if we can never be entirely comfortable in the world—is therefore a primary task of traditional building properly understood. . . .

[T]here are spiritual goods that follow from building traditionally. Notwithstanding the mundane purposes that good buildings satisfy, the highest purpose of the building arts is beauty. What can one say objectively about beauty in a culture where it is widely taken for granted that beauty is subjective? Whether painting or photography or music or sculpture or buildings, our encounter with something beautiful pleases us almost instantly. We have an intuitive understanding that beautiful things are well made; were they not, we would not understand them to be beautiful. Beautiful things somehow both embody clearly and reveal the essence of the thing they are. Beautiful things appear to us complete; we would never think of changing them, and they could not be altered but for the worse. Beautiful things not only attract us, they make us grateful. Beautiful things judge us; they change us, and make us want to be better than we are. Beautiful things elevate us. . . .
Read the whole thing!

Because it's summer . . .

. . . here's The Onion's take on Peter Singer's question.

Tuesday, June 8, 2010

"breathing space" as CSD's way around/through the pervasive false dilemma

A very perceptive person I was talking with today opined that most Americans oscillate between bald individualism, on the one hand, and totalitarianism, on the other, leaving little (or only awkward) conceptual room for what Catholic social doctrine prizes in the terms of subsidiarity and solidarity.  I hadn't thought of it quite that way before, but it immediately struck me as right on the money.  The Church's claim is that there must be -- in that marvelous phrase of Caritas in veritate, which phrase I am told comes from the Missal of Pius V --  "breathing space."  The liturgical source of the phrase underlines the shared or associational nature of "breathing space."