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, March 29, 2010

Revisiting Keenan's "History of Catholic Moral Theology in the Twentieth Century"

There were some posts about Jesuit Keenan's book a while back, including one by me.  Now, this review appears in AMERICA, by Richard Gula, S.S., professor of moral theology at the Franciscan School of Theology of the Graduate Theological Union, Berkeley, California.  Some excerpts:

"P
articipants in sabbatical programs, clergy conferences or workshops for religious educators often ask me to recommend an article or book that will bring them up to speed on recent thinking in moral theology and the roles various contributors have played in developing the field. This book meets that need.

James F. Keenan, S.J., professor of theological ethics at Boston College, is already well known to readers of America. He is a prolific author with that special gift of being able to write for the academy and for people in the pews. His keen insight, fair hand, comprehensive grasp and friendly style make even the most intricate argument accessible to the reader. In this book you will find more of the same.

With this volume, Keenan joins the ranks of John Mahoney (1987) and Charles Curran (1997 and 2008) in providing another towering history of moral theology. . . .

The encyclical Humanae Vitae (1968) marked the turning point in re-examining the method and concepts of the manualists, and in reconsidering the location of moral truth in norms proposed by the magisterium. The turbulent period between Humanae Vitae and Veritatis Splendor (1993) was dominated by intense discussions of the notion of moral objectivity and of the process of moral reasoning. Keenan deftly handles the controversies of this period to show that what distinguished moral positions was not theology but philosophy, especially the anthropology that influenced interpretations of natural law. The essentialist anthropology of the classicists posits an a priori human nature with a fixed end that does not yield to experience or social-scientific claims. For them the principle of action is the laws of nature. For the historically minded revisionists, human nature is not a static object. Rather, human nature is the relational, embodied person in a historical world that we come to know only gradually and partially. The principle of moral action is not a fixed nature but reason discovering moral value by reflecting on experience.

As virtue ethics gained in ascendancy during the latter part of this period, prudence took its rightful place as the foundation of moral objectivity. Moral truth is found where prudence takes into account the totality of the moral reality (act, intention and circumstances, including consequences). In his last chapter, Keenan shows how virtue ethics serves as the most appropriate mode of moral reflection to meet the challenges of cross-cultural dialogue about how to express moral truth.

A History of Catholic Moral Theology in the Twentieth Century is a remarkable achievement."

This, just because Duke beat Baylor yesterday?

Mark Osler from Baylor to St. Thomas (Minnesota)

Mark Osler, Professor of Law at Baylor University School of Law, has accepted a tenured position at St. Thomas Law School in Minneapolis.  Professor Osler publishes in the area of sentencing law.   He has been at Baylor since 2000 and is a graduate of Yale Law School.

Ireland Archbishop Asks Accountability of Colleagues

Archbishop Diarmuid Martin of Dublin called on his episcopal colleagues to take responsibility for the Irish Catholic Church’s failures in dealing with child sexual abuse by priests. “Without accountability for the past there will be no healing and no trust for the future,” Archbishop Martin told reporters on March 20 following Mass at St. Mary’s Pro-Cathedral in Dublin after Pope Benedict XVI’s pastoral letter to Irish Catholics on the abuse crisis was released.

Just a few days later, on March 24, the Vatican announced that the pope had accepted the resignation offered on March 9 by Bishop John Magee of Cloyne. Magee, 73, had served as personal secretary to three popes. He was accused in a 2009 investigation of mishandling reports of sexual abuse in his diocese. Four other Irish bishops had offered their resignations to the pope in December because of their mishandling of sexual abuse of children by clerics. The pope has accepted only one of these resignations.

Cardinal Sean Brady of Armagh, Northern Ireland, has been under pressure to resign since he admitted on March 14 that he had been aware of allegations of abuse against a priest as early as 1975 and did not report them to police. Cardinal Brady has apologized, but he has resisted calls for his resignation.

Archbishop Martin described the pope’s letter as “part of a strategy of renewal of the church.” Many people “felt it was much stronger than expected,” he said. Asked why the pope did not make any reference to a Vatican role in the crisis in Ireland, Archbishop Martin said the responsibility “very much” fell on the Irish church. “The Vatican had produced the norms of canon law and they weren’t respected in the management of these cases,” he said.

The pope’s letter was read in full during Masses on March 20 and 21 in parishes across Ireland. Copies were snapped up quickly by parishioners.

During his homily on March 20, Archbishop Martin said: “The church tragically failed many of its children: it failed through abuse; it failed through not preventing abuse; it failed through covering up abuse.” He said: “Child protection measures need to be constantly updated; more participation of lay men and women is needed to avoid a false culture of clericalism. We need to develop a fresh idea of what childhood means; we need to develop a strong horror of what childhood-lost means.”

“We must face the truth of the past,” the archbishop said, “repent it; make good the damage done. And yet we must move forward day by day along the painful path of renewal, knowing that it is only when our human misery encounters face-to-face the liberating mercy of God that our church will be truly restored and enriched.”

Reaction from abuse victims to the papal letter was mixed. John Kelly of the Irish Survivors of Child Abuse said the letter represented a long-overdue apology from the pope. “We are fed up being victims and don’t want to remain victims,” Kelly said. “This letter is a possible step to closure, and we owe it to ourselves to study it and to give it a measured response.”

But Maeve Lewis, the executive director of the victims group One in Four, said she was deeply disappointed by the letter “for passing up a glorious opportunity to address the core issue in the clerical sexual abuse scandal: the deliberate policy of the Catholic Church at the highest levels to protect sex offenders.”

She said, “While we welcome the pope’s direction that the church leadership cooperate with the civil authorities in relation to sexual abuse...we feel the letter falls far short of addressing the concerns of the victims.”

AMERICA on the passage of the healthcare legislation

AMERICA:  The National Catholic Weekly
April 5, 2010

Current Comment
The Editors

Achieving Step One

Hurrah! The yearlong battle has been won, and the health care reform bill is now the law of the land. Most Americans will benefit from the legislation: the insured who could get sick or lose their job; those with Medicare/Medicaid coverage whose drug payments fall into “the doughnut hole” gap in coverage; and especially the 32 million Americans currently without insurance. But this historic achievement is only the first step in what must be a change of attitude among the body politic. Americans must abandon the notion that health care is a luxury for the privileged and a “fringe benefit” from employers but just a wish for the unlucky rest of the population. The truth is that not only should every American have health coverage, but that most actually can have it—thanks to this bill. Our government has completed a major exercise in “promoting the general welfare,” which the Constitution mandates it to do.

Part two of the required attitude shift will be more difficult to achieve. Having decided to provide nearly universal coverage, we Americans have to decide how to keep expensive health costs under control. The bill takes steps toward containing costs but does not go far enough. How the nation exercises fiscal responsibility matters. It ought not cut off some citizens’ coverage just to rein in costs, any more than a family facing hard times would let two or three members go without food while the rest eat up. Major cost-cutting choices lie ahead. But only a real shift in attitude, one that seeks to promote the common good, will ensure that the right choices are made.

"Scoundrel Time(s)"

Here is George Weigel, addressing both the great moral evil that is the sexual abuse of children, and the disturbingly under-inclusive and accuracy-challenged reporting on that evil that is being provided these days by the New York Times and others:

The sexual and physical abuse of children and young people is a global plague; its manifestations run the gamut from fondling by teachers to rape by uncles to kidnapping-and-sex-trafficking. In the United States alone, there are reportedly some 39 million victims of childhood sexual abuse. Forty to sixty percent were abused by family members, including stepfathers and live-in boyfriends of a child’s mother—thus suggesting that abused children are the principal victims of the sexual revolution, the breakdown of marriage, and the hook-up culture. Hofstra University professor Charol Shakeshaft reports that 6-10 percent of public school students have been molested in recent years—some 290,000 between 1991 and 2000. According to other recent studies, 2 percent of sex abuse offenders were Catholic priests—a phenomenon that spiked between the mid-1960s and the mid-1980s but seems to have virtually disappeared (six credible cases of clerical sexual abuse in 2009 were reported in the U.S. bishops’ annual audit, in a Church of some 65,000,000 members).

Yet in a pattern exemplifying the dog’s behavior in Proverbs 26:11, the sexual abuse story in the global media is almost entirely a Catholic story, in which the Catholic Church is portrayed as the epicenter of the sexual abuse of the young, with hints of an ecclesiastical criminal conspiracy involving sexual predators whose predations continue today. That the vast majority of the abuse cases in the United States took place decades ago is of no consequence to this story line. For the narrative that has been constructed is often less about the protection of the young (for whom the Catholic Church is, by empirical measure, the safest environment for young people in America today) than it is about taking the Church down—and, eventually, out, both financially and as a credible voice in the public debate over public policy. For if the Church is a global criminal conspiracy of sexual abusers and their protectors, then the Catholic Church has no claim to a place at the table of public moral argument.

The Church itself is in some measure responsible for this. . . .

. . . While the Vatican has been far quicker in its recent response to irresponsible media reports and attacks, it could still do better. A documented chronology how the archdiocese of Munich-Freising handled the case of an abusing priest who had been brought to Munich for therapy while Ratzinger was archbishop would help buttress the flat denials, by both the Vatican and the archdiocese, that Ratzinger knowingly reassigned a known abuser to pastoral work—another charge on which the Times and others have been chewing. More and clearer explanations of how the canonical procedures put into place at CDF several years ago have accelerated, not impeded, the Church’s disciplining of abusive clergy would also be useful.

So, of course, would elementary fairness from the global media. That seems unlikely to come from those reporters and editors at the New York Times who have abandoned any pretence of maintaining journalistic standards. But it ought not be beyond the capacity of other media outlets to understand that much of the Times’ recent reporting on the Church has been gravely distorted, and to treat it accordingly.

"A Time for Contrition," by Ross Douthat

[The original is here.]

During a frustrating argument with a Roman Catholic cardinal, Napoleon Bonaparte supposedly burst out: “Your eminence, are you not aware that I have the power to destroy the Catholic Church?” The cardinal, the anecdote goes, responded ruefully: “Your majesty, we, the Catholic clergy, have done our best to destroy the church for the last 1,800 years. We have not succeeded, and neither will you.”

Two centuries later, the clergy has taken another shot at it. What the American and Irish churches have endured in the last decade and what German Catholics find themselves enduring today is all part of the same grim story: the exposure, years after the fact, of an appalling period in which the Catholic hierarchy responded to an explosion of priestly sex abuse with cover-ups, evasions and criminal negligence.

Now the scandal has touched the pope himself. There are two charges against Benedict XVI: first, that he allowed a pedophile priest to return to ministry while archbishop of Munich in 1980; and second, that as head of the Vatican’s Congregation for the Doctrine of the Faith in the 1990s, he failed to defrock a Wisconsin priest who had abused deaf children 30 years before.

The second charge seems unfair. The case was finally forwarded to the Vatican by the archbishop of Milwaukee, Rembert Weakland, more than 20 years after the last allegation of abuse. With the approval of then-Cardinal Ratzinger’s deputy, the statue of limitations was waived and a canonical trial ordered. It was only suspended because the priest was terminally ill; indeed, pretrial proceedings were halted just before he died.

But the first charge is more serious. The Vatican insists that the crucial decision was made without the future pope’s knowledge, but the paper trail suggests that he could have been in the loop. At best, then-Archbishop Ratzinger was negligent. At worst, he enabled further abuse.

For those of us who admire the pope, either possibility is distressing, but neither should come as a great surprise. The lesson of the American experience, now exhaustively documented, is that almost everyone was complicit in the scandal. From diocese to diocese, the same cover-ups and gross errors of judgment repeated themselves regardless of who found themselves in charge. Neither theology nor geography mattered: the worst offenders were Cardinal Bernard Law of Boston and Cardinal Roger Mahony of Los Angeles — a conservative and a liberal, on opposite ends of the country.

This hasn’t prevented both sides in the Catholic culture war from claiming that the scandal vindicates their respective vision of the church. Liberal Catholics, echoed by the secular press, insist that the whole problem can be traced to clerical celibacy. Conservatives blame the moral relativism that swept the church in the upheavals of the 1970s, when the worst abuses and cover-ups took place.

In reality, the scandal implicates left and right alike. The permissive sexual culture that prevailed everywhere, seminaries included, during the silly season of the ’70s deserves a share of the blame, as does that era’s overemphasis on therapy. (Again and again, bishops relied on psychiatrists rather than common sense in deciding how to handle abusive clerics.) But it was the church’s conservative instincts — the insistence on institutional loyalty, obedience and the absolute authority of clerics — that allowed the abuse to spread unpunished.

What’s more, it was a conservative hierarchy’s bunker mentality that prevented the Vatican from reckoning with the scandal. In a characteristic moment in 2002, a prominent cardinal told a Spanish audience that “I am personally convinced that the constant presence in the press of the sins of Catholic priests, especially in the United States, is a planned campaign ... to discredit the church.”

That cardinal was Joseph Ratzinger, now Benedict XVI. Since then, he’s come to grips with the crisis in ways that his predecessor did not: after years of drift and denial under John Paul II, the Vatican has taken vigorous steps to promote zero tolerance, expedite the dismissal of abusive priests and organize investigations that should have happened long ago. Because of Benedict’s recent efforts, and the efforts of clerics and laypeople dating back to the first wave of revelations in the 1980s, Catholics can reasonably hope that the crisis of abuse is a thing of the past.

But the crisis of authority endures. There has been some accountability for the abusers, but not nearly enough for the bishops who enabled them. And now the shadow of past sins threatens to engulf this papacy.

Popes do not resign. But a pope can clean house. And a pope can show contrition, on his own behalf and on behalf of an entire generation of bishops, for what was done and left undone in one of Catholicism’s darkest eras.

This is Holy Week, when the first pope, Peter, broke faith with Christ and wept for shame. There is no better time for repentance.

Sunday, March 28, 2010

Stupak has not kept his reasons secret. They just haven't been widely reported.

My mistake was corrected by MOJ reader David Nickol. Here is the language he sent along with a link to the whole interview:

Stupak said that House Speaker Nancy Pelosi had enough votes to pass the health bill without him and the bloc of six or seven votes he brought with him, and that she released some vulnerable Democrats from voting for the bill after he agreed to support it. . . .

Stupak told The Daily Caller that the president’s order does nothing to change the law as it’s written.
“You can’t. It’s the next best thing,” he said.

It was that or nothing, he insisted, saying he knew for a fact that Pelosi released certain House Democrats from voting for the bill after he and his bloc of six or seven votes swung into the yes column.

“A number of them came up and thanked me … said, ‘Thanks for getting us off the hook,’” Stupak said. “I’ve been around here long enough to know that the speaker, Democrats or Republican, always carries a few votes in their pocket.”

“So I had a choice: to come up empty-handed and a bill passes with language that I totally disagree with, or I do the next best thing.” http://dailycaller.com/2010/03/23/stupak-says-catholic-bishops-pro-life-groups-tried-to-use-abortion-to-defeat-health-bill/

According to the article, Pelosi claims that she never lets any Democrats off the hook, but this seems implausible to me. So I think Stupak is telling the truth.

Perspective on the hard work the NYT has been doing

Some may find the following data and perspective, which come from Fr. Raymond de Souza, to be of assistance in discerning the truth in what is being widely reported as we move into Holy Week.

Stupak did right but has to keep it a secret (I think).

If the federal courts behave as they have in the past (see the very solid USCCB analysis of prior cases), the new healthcare law, despite the slightly pro-life wording of the executive order, will dramatically promote abortion. Funding for elective abortion will be included in healthcare wherever it is not specifically excluded. So pro-life Representative Lipinski  (D-IL) was prudent in voting against the bill and in stating: “I do not believe the last-minute effort to address these [pro-life] concerns through an Executive Order is sufficient because there is every indication that federal courts would strike down this order, and the order could be repealed at any time in the future."

But it is also true that the Administration's interpretation of the new law, through Obama’s EO, could positively affect the federal courts (especially the five justices on the Supreme Court who are more open-minded on abortion); those justices might ultimately say the EO provides a reasonable way to understand the law. Abortion will then (to some degree, though not perfectly) be excluded from healthcare funding where it is not specifically included. So Stupak was prudent in voting for the bill if that was the only way to get an ameliorative EO onto a bill that would have passed anyway.

But, it will be said, “By counting votes we can see that the Senate bill clearly could not have passed in the House without the help of Stupak and his group. So he could have altogether stopped an expansion of abortion funding, but settled (at best) for just limiting that expansion.”

Such a criticism may, however, be misguided. According to information I believe trustworthy, Pelosi had told Stupak that she  had the votes to pass the Senate bill without any pro-life support, but she would have had to lean on a number of new Democratic House members from very conservative districts where voting for the healthcare bill would have greatly threatened their reelection in November. That is, the leverage Stupak had was not "If I and my group don't vote for this, it's dead." His leverage may well have been only "If I and my group don't vote for this, you'll have to call in votes from marginal districts and thus make it harder for the Democrats to keep their majority in the next election." In the latter context, getting a moderately pro-life spin on the bill via the EO was an achievement.  It was arguably a deal worth making.

If I am right about the politics, then Stupak et al. voting against the bill (though perhaps making them look heroic, like General Custer) would have accomplished nothing legally and would have made pro-life Democrats look irrelevant rather than (as they do now) a group with some clout, one that must be dealt with.

But Stupak cannot come out and give this defense of himself in public, I think, because it would undercut the voter support for those marginal Democrats that Pelosi wanted to secure by her deal with his group, and would thus make her less likely to strike a deal with him again. Thus, perhaps, the poor guy has to put up with being accused again and again of having brought a federal abortion funding mandate to America when he knows that’s not true.

John Paul II on Understanding

A few recent posts struck me as having arrived at a felicitous moment. The first pair were Rick Garnett's posts on the fifth anniversary of John Paul II's death and on Catholic moral anthropology. A third was Patrick Brennan's post on understanding. They were particularly timely for me, having just returned from giving a short talk to a group of economists on the topic of John Paul II's moral anthropology.

A critical dimension of John Paul II's thought on the human person is related to the impossibility of comprehending the person. I mean that he believed that because the human person bears the image of God (imagio Dei), the person is incomprehensible as God is incomprehensible. This is a consequence of the Majesty of God and the noetic effects of sin. This is not to say that either God or the person is unknowable. God is absolute in being open to the human person. But, John Paul II's thought does not equate comprehension and knowledge. He sees persons as unfathomable in human knowing. It is not that the person is unknowable, indeed we can and do know others. It is as if we can always dive deeper and deeper into knowledge of the person, and yet never "touch bottom." And for that reason, we can never master intellectual control over human nature. And he affirmed that the mystery of the person is essential to our personal experience to being human. In Fides et Ratio, he taught that:

Man is seized with the awe to see that he has been placed in the universe, in fellowship with others like himself with whom he also shares a common lot. This is the beginning of the journey which will lead him to discover new realms of knowledge. Without this sense of wondering amazement, man would subside into deadening routine and would bit by bit lose the power of leading a proper personal life. (Section 4)

For John Paul II, the human person is a mystery to himself, and that mystery is tied fundamentally to human dignity. This dimension of the mystery of the person is deeply tied to Christian Neo-Platonism and the mystical tradition of figures like St. John of the Cross--the subject of John Paul II's doctoral dissertation written as Karol Wojtyla.

A deep difficulty with much of modern thought is that it seeks to avoid the mystery of the person by reducing the person to a conceptualization over which one can achieve intellectual control and dominion. In doing this, it creates an idolatrous image of God within the human person. Kenneth Schmitz has called this the "secularization of the interior." For John Paul II, this secularization has to do with the exclusive preference for mental objects (intentionality) in modern epistemology and philosophy of mind, which seems to preclude knowledge of unfathomable truth. (He differs from Lonergan on this point). 

John Paul II's critique of modernity seems particularly applicable to Analytic philosophy, which underwrites much of contemporary Anglo/American jurisprudence. And post-modernists fair no better. For them, the Other is absolutely unknowable, not unfathomable. By denying the possibility of knowledge of the Other, post-modernity replays the modern reduction of knowledge to conceptual control and then denies its possibility. And therefore, post-modernity is only hyper-modernity--modernity turning its critique back on itself. 

For John Paul II, the truth about the person is approached indirectly, through the analysis of the lived experience of moral action. While he did not deny any aspect of the Thomistic metaphysical account of the person, he believed that it was incomplete (as any account is) and in need of a personalist account of the subjective experience of acting with moral purpose. This was the starting point of his moral philosophy. And, his analysis of such experience informs us that human beings know one another most perfectly in shared acts of charity and love--acts in which the mystery of the Other can be honored and venerated. 

He warned us that a proper understanding of the person is essential for avoiding the totalitarianism that he experienced in his youth. The political and economic systems of Fascism and Soviet communism that he endured were out-workings of misunderstandings of the person. Assuming away the mystery of the person is perhaps the ultimate modern fantasy. It renders God and humans as beings among beings, and thereby undermines the Majesty of God and the Dignity of the human person.

It seems quite likely that over the next thirty years or so, Catholic conceptions of the dignity of the person will confront new, in some ways unprecedented, challenges brought about by the economic decline of Europe and the US, the cultural consequences of globalization, and emergence of new technologies that will radically question what it means to be human. John Paul II speaks to us today by cautioning that in confronting these challenges Catholics must adhere to the mission of seeking to know the truth. 

Let me close by encouraging you to read, this Holy Week the "Ode for the 80th Birthday of Pope John Paul II" by Czeslaw Milosz. I quote the last stanza:

You are with us and will be with us henceforth.
When the forces of chaos raise their voice
And the owners of truth lock themselves in churches
And only the doubters remain faithful,
Your portrait in our homes every day remind us
How much one man can accomplish and how sainthood works.

I have turned on the comments.