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.

Wednesday, February 10, 2010

"Freedom from" or "freedom for"

By Michael Scaperlanda

Yesterday in my Catholic Jurisprudence class, we discussed Cardinal Dulles' essay "Truth as the Ground of Freedom" (in Catholic Perspectives on American Law).  During the discussion, I suggested that the concept of "freedom from" authority is illusory because all freedom is exercised "for" some good as directed by a criteria external to freedom itself.  I might, for example,  choose to act according to my understanding of the moral law and to act in such a way that I develop habits that make it easier for me to so act.  Or, I might act according to the dictates of my passions (or the strongest passion at the moment).  In both cases, I am placing myself under some authority - either the authority of the moral law or the authority of my strongest passion -  and exercising my freedom "for" some good, whether it be the good dictated by the moral law or the good achieved in satisfying that passion.

What do you think?  Am I missing something in my analysis?  Comments are open.

Nussbaum and Social Contract Theory

By Steve Shiffrin

I have been discussing Martha Nussbaum’s, Frontiers of Justice in my seminar on Constitutional Law and Political Theory. The book critiques social contract theories in the context of application to persons with disabilities, people from other nations, and to animals. My class is discussing only the first 223 pages which excludes people from other nations, and animals, but includes persons with disabilities.

I emerge from her discussion even more hostile to the social contract tradition than she is. As she observes, the moral work in the social contract tradition is done in setting up the conditions of the social contract. I do not see why the bargaining among equals model should be attractive in any religious tradition, let alone Catholicism. I do not see why we should hold up as a model the perspective of those bargaining for their own advantage (even understanding that the veil of ignorance is designed to produce a benevolent result). Nussbaum convincingly argues that Rawls, for example, cannot relax the conditions of his model to address the problems she discusses, and Rawls was well aware of it.

Nussbaum argues for an alternative in the natural law tradition to the social contract methodology. Of course, it is controversial in its particulars. In Catholic social theory, natural law is congenial. But there are Catholic Rawlsians. I am coming to the view that there should not be.

Finally, Nussbaum makes clear she will argue against the imperial claims of human beings over animals. I have not read her section on animals yet. But I have long thought that Kant’s view that we owe no duties to animals was dead wrong and that deriving the dignity of humans from their rationality as compared to animals downplayed important components of humanity. Nussbaum does not make that mistake (though there are some on my faculty who think she is insufficiently sensitive to the plight of and nature of animals).

cross posted with modifications at http://religiousleftlaw.typepad.com/religiousleftlawcom/

"[W]hat will count . . . . "

By Patrick McKinley Brennan

I am reminded of this well known quote from Bernard Longergan SJ, sometime Stillman Professor in Harvard University:  "There is bound to be formed a solid right that is determined to live in a world that no longer exists.  There is bound to be formed a scattered left, captivated by now this, now that new possibility.  But what will count is a perhaps not numerous center; big enough to be at home in both the old and new; and painstaking enough to work out one at a time the transitions to be made."

I like to think of MOJ as a community where we are working to be that "perhaps not numerous center" that will count -- big enough and painstaking enough not to rest in the past nor to be scattered and captivated by anything less than the truth, which is neither left nor right.

Corporations and Campaign Finance

By Steve Shiffrin

I have a short take on the Citizens United case in the current issue of Commonweal. http://commonwealmagazine.org/who-approves-message

Among other things I argue that the act should not have been applied to the documentary film in question and it should not have been applied to an organization like Citizens United. More important, business corporations are required by law to be sociopathic. Sociopaths do not care about the impact of their actions on others. Business corporations likewise are required not to think of others, but to maximize shareholder returns. In increasingly competitive markets, they are forced to focus on short term competitive gain. (See Robert Reich, Supercapitalism). If business corporations advocate the common good it is entirely by accident. The legislatures of this country were wise in trying to control the behavior of the most wealth institutions in our society, particlarly given that their support of the common good could only happen by accident.

As the late Ed Baker argued so well in Human Liberty and Freedom of Speech, the market affects media corporations in ways different than it does business corporations, and media reform should be designed to make media corporations editors and writers even more free to mitigate the colonizing effects of advertisers and owners.My Commonweal piece does not make all these points, but it makes some of them as well as some arguments not included here.

cross posted at http://religiousleftlaw.typepad.com/religiousleftlawcom/

Thanks very much to Rob Vischer

By Michael Perry

That's very helpful, Rob.  Thanks so much.

Michael

An argument about SSM and "open" relationships

By Rob Vischer

Michael asked if someone could lay out the argument underlying Robby's posting of the New York Times article setting forth findings about a perceived tendency of same-sex couples to adopt "open" relationships, including open marriages.  I would never purport to speak for Robby, but here's my best stab at the argument:

One's view of same-sex marriage turns, at least in part, on one's estimation of how malleable the institution of marriage is.  Many people who support SSM strongly favor marriage as a foundational social good in that it promotes, among other things, mutual caregiving, stable relationships for child-rearing, and the total and exclusive self-giving of one person to another.  Don Browning, for example, argues that marriage is particularly important for males because “paternal investment in children, paternal certainty, and monogamy tend to go together.”  If SSM is understood to maintain these functions of traditional marriage, and if the gender of the participants is incidental to those functions, then maybe there's no problem.  (I'm putting to the side the ontological arguments about marriage made by Robby and others.)

But what if the gender of the participants is not incidental to those functions?  This possibility could take two forms: 1) biological -- i.e., the suggestion that men are, on average, more inclined toward sexual promiscuity, and marriage's "restraining" function may be less powerful when the marriage is made up of two men; or 2) sociological -- i.e., same-sex couples will tend to be less committed to the traditional understanding and functions of marriage.  If, say, half of same-sex couples will end up adopting an "open" marriage, does the pedagogical dimension of marital practices mean that open marriages will be more likely to gain mainstream acceptance, with monogamy viewed as simply another possible marital characteristic to be bargained for by the spouses, rather than an intrinsic part of marriage?  To wildly overstate the factual premises of the argument, if a crystal ball could show that the widespread adoption of SSM would lead, in 40 years, to nearly half of all marriages being intentionally non-monogamous, should that give SSM supporters pause?  I believe it should. 

The problem, of course, is that there is no way to know what marriage will look like in 40 years.  I'm not even sure what the state of committed same-sex relationships is right now.  The Times article reported on gay couples in San Francisco.  I'd be interested in the practices of same-sex couples in Chicago, Minneapolis, or Atlanta.  I'd also be interested in exploring cause and effect.  Does the apparent tendency of same-sex couples, at least in the Bay Area, to reject  monogamy (relative to heterosexual couples) reflect a deliberate devaluing of marriage, or does it reflect a subculture that has been excluded from the social mechanisms that help foster and encourage monogamy?  Will the monogamy gap eventually shrink if same-sex couples are included in marriage?  And would the closing of the gap be driven by rising rates of monogamy among same-sex couples or by falling rates among heterosexual couples? 

So can the practices depicted in the Times article carry the weight that SSM opponents might assign it?  I'm doubtful, though to be fair, I don't think their entire argument would rest on that depiction.  Does SSM represent changes to marriage beyond the gender of the participants, and if it does, are the changes likely to impede the essential social functions of marriage?  In my estimation, that's the crux of the argument that needs to be engaged by both opponents and proponents of SSM.

Tuesday, February 9, 2010

A question about arguments against opening up civil marriage to same-sex couples

By Michael Perry

Today, over at the new blog that Bob Hockett, Eduardo Penalver, Steve Shiffrin, and I have begun--the blog titled ReligionLeftLaw--I just posted this:

"Today, over at Mirror of Justice, where Bob, Steve, and I (and even Eduardo in the old days) have been known to post, Robby George posted an article that appeared in the January 29th edition of the New York Times--an article I had not seen.  My question:  Why might one think that the information recounted in the article counts against--as Robby George obviously thinks it does--opening up civil marriage to same-sex couples?  This is not a rhetorical question:  I am genuinely puzzled about how exactly the argument would go.  I wonder whether once it is made explicit, once it is spelled out, the argument--whatever it is--will look plausible.  Thanks."

If you're interested in weighing in (civilly, of course), check out the post--and, indeed, the inaugural blog postings--here.  Thanks.

Applying Subsidiarity to the Regulation of Consumer Credit

By Elizabeth Schiltz

I've just posted a paper I presented at the Journal of Law & Religion's fall symposium on The Global Economic Crisis, Law and the Religious Traditions, entitled: 

The Paradox of the Global and the Local in the Financial Crisis of 2008:  Applying the Lessons of Caritas in Veritate to the Regulation of Consumer Credit in the United States and the European Union.  It's a case study in the application of subsidiarity to debates about the regulation of consumer credit in the United States and the European Union, through the lens of Pope Benedict's Caritas in Veritate.  I'd be most grateful for any feedback.  Here's the abstract:

In his recent encyclical Caritas in Veritate, Pope Benedict XVI grapples with one of the most vexing paradoxes of the current global economic crisis: that a systemic global financial crisis was rooted in uniquely local transactions: loans to individual consumers tied to unique, unmovable parcels of residential real estate. This paradox raises some tricky questions about the “architecture” of the regulatory response to the crisis. Does the scope of the problem demand the efficiencies of broad-brush uniform regulation, or does the origin of the problem require more differentiated local responses?

In one sense, the question of whether a global or a local response is most appropriate is largely academic, since there is no global authority with the power to implement any response. But on a smaller scale, this question is the subject of active debate in two significant political arenas – the U.S. and the E.U. In the U.S., the battle over whether consumer credit should be regulated on the local (state) level or on the federal level has been raging in banking circles and federal courts for years. Proposals to tinker with the balance of federal and state authority over consumer credit laws are part of every version of financial reform legislation currently under consideration in Congress. This same question is also being raised in the E.U., which is currently considering a European directive on consumer rights that would diminish the authority of national governments to regulate consumer credit locally, while increasing the authority of the E.U. to impose uniform standards across member states.

In Caritas, Pope Benedict portrays the current global economic crisis as a crisis of world development. He argues that the globalization of the world economy leading to the current crisis has exposed inadequacies in our views of the authority of existing political structures and the authority of the market. Our conception of the state as an institution capable of fostering human development is flawed because the authority of states ends at their borders, while markets cross borders. Our conception of the market as an institution capable of fostering human development is flawed because it does not incorporate the essential insights of the principle of gratuitousness – the internalization of solidarity and mutual trust necessary for the human subjects of market transactions to be recognized as members of the same human community. Our current views of the structures of political and economic authority are flawed because they are rigidly, but unrealistically, dualistic. They fail to acknowledge the multiplicity of values at stake in the various spheres of human activity. Benedict thus concludes that both political and economic authority has to be articulated. There will be different levels at which governmental and market forces can most effectively act to protect the different values at stake.

This article first describes how the tension between a local or a nonlocal approach plays out in the debates about the appropriate regulatory scheme for consumer credit in the U.S. and the E.U. In both jurisdictions, the primary motivation for the increasingly predominant uniform, nonlocal approach has been economic efficiency. Next, the article explores Pope Benedict’s arguments in Caritas for why only an articulated response to the root causes of the global economic crisis protects the multiplicity of values required to achieve an authentically humane global economy. Finally, it applies Pope Benedict’s general framework to the debates in the U.S. and the E.U. It concludes that, while this framework does not reject entirely the value of economic efficiency that supports some uniform nonlocal regulation, it also counsels for the preservation of the possibility of some differentiated, inefficient, local regulation of consumer credit. The most effective regulatory responses to the current crisis, therefore, will be those that support an ongoing dynamic balancing of the competing claims of local and nonlocal interests.

When is a Catholic doing legal theory doing "Catholic legal theory?"

By Rob Vischer

I've just posted a new paper with that title on SSRN.  Here's the abstract:

What does it mean for me to be a Catholic doing legal theory, even when I am not self-consciously trying to do “Catholic legal theory?” One simple response is methodological: I might be describing the Christian tradition, I might be proclaiming its truth, I might be speaking prophetically to power, or I might be speaking pragmatically about reasonably debatable methods by which to cultivate the common good. At different points, if I want to contribute to the full flowering of the Catholic legal theory project, I hope that I do all of these. At a deeper level, articulating what I do as a Catholic legal scholar must also account for what I do as a legal scholar. One concern is that the religious label, especially the Catholic label, will be an easy way to pigeon-hole me and more easily dismiss my opinions as pre-ordained conclusions dictated by my faith tradition, rendering them less authentic and even less human. In reality, though, my faith should be the impetus to delve even more deeply into the heart of what it means to be human, to grapple unflinchingly with the reality of our existence. When I use faith as an escape, when I toss off trite prayers to numb myself to the tragedy that unfolds around me, rather than praying to express and share in the depth of that grief, I am rightly dismissed by the grieving. Similarly, when I use faith in my scholarship as a bludgeon to wield against those who reject my worldview, or when I dress up my unsupported assertions as self-evident simply because they come from my faith tradition, I am rightly dismissed by those legal scholars who are authentically struggling with the question of how imperfect people should govern themselves in an imperfect world. The Catholic legal theory project has much to contribute to legal scholarship, starting with the anthropological question of what it even means to be human. (This essay is based on a presentation at Seton Hall’s conference, “Religious Legal Theory: The State of the Field” in November 2009.)

Any feedback readers have will be welcomed enthusiastically.

The New York Times reveals an "open secret"

By Robert George

 
"As the trial phase of the constitutional battle to overturn the Proposition 8 ban on same-sex marriage concludes in federal court, gay nuptials are portrayed by opponents as an effort to rewrite the traditional rules of matrimony. Quietly, outside of the news media and courtroom spotlight, many gay couples are doing just that, according to groundbreaking new research."
 
From the New York Times
 
January 29, 2010

Many Successful Gay Marriages Share an Open Secret

By SCOTT JAMES

When Rio and Ray married in 2008, the Bay Area women omitted two words from their wedding vows: fidelity and monogamy.

“I take it as a gift that someone will be that open and honest and sharing with me,” said Rio, using the word “open” to describe their marriage.

Love brought the middle-age couple together — they wed during California’s brief legal window for same-sex marriage. But they knew from the beginning that their bond would be forged on their own terms, including what they call “play” with other women.

As the trial phase of the constitutional battle to overturn the Proposition 8 ban on same-sex marriage concludes in federal court, gay nuptials are portrayed by opponents as an effort to rewrite the traditional rules of matrimony. Quietly, outside of the news media and courtroom spotlight, many gay couples are doing just that, according to groundbreaking new research.

A study to be released next month is offering a rare glimpse inside gay relationships and reveals that monogamy is not a central feature for many. Some gay men and lesbians argue that, as a result, they have stronger, longer-lasting and more honest relationships. And while that may sound counterintuitive, some experts say boundary-challenging gay relationships represent an evolution in marriage — one that might point the way for the survival of the institution.

New research at San Francisco State University reveals just how common open relationships are among gay men and lesbians in the Bay Area. The Gay Couples Study has followed 556 male couples for three years — about 50 percent of those surveyed have sex outside their relationships, with the knowledge and approval of their partners.

That consent is key. “With straight people, it’s called affairs or cheating,” said Colleen Hoff, the study’s principal investigator, “but with gay people it does not have such negative connotations.”

The study also found open gay couples just as happy in their relationships as pairs in sexually exclusive unions, Dr. Hoff said. A different study, published in 1985, concluded that open gay relationships actually lasted longer.

None of this is news in the gay community, but few will speak publicly about it. Of the dozen people in open relationships contacted for this column, no one would agree to use his or her full name, citing privacy concerns. They also worried that discussing the subject could undermine the legal fight for same-sex marriage.

According to the research, open relationships almost always have rules.

That is how it works for Chris and James. Over drinks upstairs at the venerable Twin Peaks Tavern in the Castro neighborhood of San Francisco, they beamed as they recalled the day in June 2008 that they donned black suits and wed at City Hall, stunned by the outpouring of affection from complete strangers. “Even homeless people and bike messengers were congratulating us,” said Chris, 42.

A couple since 2002, they opened their relationship a year ago after concluding that they were not fully meeting each other’s needs. But they have rules: complete disclosure, honesty about all encounters, advance approval of partners, and no sex with strangers — they must both know the other men first. “We check in with each other on this an awful lot,” said James, 37.

That transparency can make relationships stronger, said Joe Quirk, author of the best-selling relationship book “It’s Not You, It’s Biology.”

“The combination of freedom and mutual understanding can foster a unique level of trust,” Mr. Quirk, of Oakland, said.

“The traditional American marriage is in crisis, and we need insight,” he said, citing the fresh perspective gay couples bring to matrimony. “If innovation in marriage is going to occur, it will be spearheaded by homosexual marriages.”

Open relationships are not exclusively a gay domain, of course. Deb and Marius are heterosexual, live in the East Bay and have an open marriage. She belongs to the Church of Jesus Christ of Latter-day Saints and maintained her virginity until her wedding day at 34. But a few years later, when the relationship sputtered, both she and her husband, who does not belong to the church, began liaisons with others.

“Our relationship got better,” she said. “I slept better at night. My blood pressure went down.”

Deb and Marius also have rules, including restrictions on extramarital intercourse. “To us,” Marius said, “cheating would be breaking the agreement we have with each other. We define our relationship, not a religious group.”

So while the legal fight over same-sex marriage plays out, couples say the real battle is making relationships last — and their answers defy the prevailing definition of marriage.

“In 1900, the average life span for a U.S. citizen was 47,” Mr. Quirk said. “Now we’re living so much longer, ‘until death do us part’ is twice as challenging.”

Scott James is an Emmy-winning television journalist and novelist who lives in San Francisco.
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