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, January 13, 2010

Appreciating Analogies – A Reply to Cathy Kaveny

Shortly before Christmas, Michael P. posted Cathy Kaveny’s response (here) to my post (here) criticizing an entry of hers posted at dotCommonweal (here). 

 

Thanks to Michael P. for seeking to further the conversation.

 

In her remarks, Cathy suggests that I failed to grasp the point she was making in drawing an analogy between the process whereby Pius XII and John Paul II were declared “venerable” by the Church and the process whereby Notre Dame chose to honor President Obama by selecting him as its commencement speaker and awarding him an honorary degree.  Thus, she says “John, I’m utterly flummoxed why you can’t see the analogy. But I’ve done my level best to lay it out for you fully.”

 

I did not, in fact, fail to appreciate the point Cathy was trying to make.  Indeed, the point of Cathy’s original entry on dotCommonweal was readily apparent to any reader, viz., that Obama, and Pius, and John Paul have, in the office each has held, addressed a number of important issues – some in a salutary manner, others in a way that was less than satisfactory.  We should resist the urge to focus on only one issue but should instead view the person in the entire context of his life’s work before determining whether or not he is worthy of praise.  If this is the proper method for determining whether or not a person should be regarded as “venerable” by the Church (which it appears to be), it should also be regarded as a proper method for a Catholic university to use in identifying a suitable commencement speaker and honorary degree recipient.   

 

Admittedly, this analogy has a certain superficial appeal such that, from a distance, Cathy’s basic point is unobjectionable.  But when one examines the analogy more closely, when one pushes the analogy further, it soon breaks down.  And this was the main point of my post – the very point Cathy chose not to address.

 

For Cathy, as for me, the point of intersection between the cases of Pius, John Paul and Barack Obama is how the Church, the people of God – whether in the Congregation for the Causes of Saints or in the University of Notre Dame – should assess the worthiness of a person whom some propose for honor.  Cathy says that she acknowledges that “there are doubtless differences in detail” but that “all three men arguably have a morally deficient stance toward grave moral and social evil which they are in some position to protest or prevent” and that this is the premise of her analogy.

 

The problem is that the very differences she glosses over matter and matter deeply.  Indeed, distinctions – between acquiescing in, endorsing, or opposing a certain kind of conduct, between taking steps that restrict or augment that form of conduct – are at the heart of careful moral analysis, as any self-respecting casuist would readily admit.

 

There would indeed be a profound difference between, on the one hand, a pope who was an avowed anti-Semite, who supported the program of genocide carried out by the Nazis and who assisted in that project either by providing material assistance or by deliberating failing to act against it and, on the other hand, a pope who deplored the Nazis and their philosophy but through some lack of courage or prudence failed to take certain actions within his power.

 

That is not to say that the latter should be declared “venerable” or otherwise honored by the Church, but it is to say that the views of the former would immediately disqualify him from consideration. 

 

I should make clear that, as with my prior post, I take no position on the actual merits concerning Pius XII’s cause for canonization.  But that is not the point.  The point is that, to use Cathy’s words, in assessing “the appropriateness of th[e] honor” one may “look[] at their entire life and context,” but that “the recipient's stance on . . .  one issue” may be dispositive.

 

Indeed, history proves the point.  There are, in fact, many individuals throughout the Church’s history who have not been declared saints precisely because of their views on particular matters, notwithstanding their many virtues in other respects – Tertullian and Origen come immediately to mind. 

 

Similarly, there would indeed be a grave difference between, on the one hand, a pope who practiced pederasty, who spoke in favor of it, and who worked to protect fellow priests and religious who engaged in the act and, on the other hand, a pope who faithfully embraced the Church’s teaching regarding sexual morality in both his private life and in his public ministry, but who failed to take decisive steps to protect young men and boys from abusive clerics.  Even if the former individual worked tirelessly to spread the word of God, to increase vocations to the priesthood, to renew devotion to the Blessed Sacrament, and to bring about world peace, his position on that one issue would preclude him from serious consideration as a candidate for veneration.

 

So, if we are to apply this same standard – looking at a person’s entire life but recognizing that certain issues may preclude one from consideration from the contemplated honor, and bearing in mind that there are still vast differences between candidates for veneration and candidates for commencement addresses – how does the President fare?

 

In my prior post I provided a summary of the President’s views with respect o abortion and how his actions in office have served to broaden and deepen the culture of death.

 

In response to this summary Cathy accused me of “reading the facts about Obama[‘s] [position on abortion] in the worst possible way.”  By way of reply, it would, I think, be fair to say that, to the extent Cathy has consulted the facts at all, she has read them in the best possible way – musing that the President supports a constitutional right to abortion “perhaps because he thinks it’s the best, prudentially, we can do” and simply declaring that the President “doesn’t think abortion is a good thing. Of course Obama did say ( see here and here) during the campaign that “nobody is pro-abortion, abortion is never a good thing," but how does this statement match up with what he said (here) with respect to what he would want for his daughters in the case of an unplanned pregnancy?  He may not view abortion as a good thing in the abstract, but he does appear to view it as a good thing under certain (not uncommon) circumstances.

 

More importantly, how does this statement match up with Obama’s actions in public office – from his days in the Illinois senate and his voting against the Victims Born Alive Act (see here and here), to his early days in the White House reversing the Mexico City policy (see here and here), to his support for overturning the Dornan Amendment so that federal tax dollars may be used to pay for abortions in the District of Columbia (here).

 

Cathy has chosen not to address these sorts of details and what they say about the man whom, it was proposed, a Catholic university should deem worthy of honor.  She has preferred instead to refer to the President’s stated desire to reduce the number of abortions – a policy which, it seems in practice, will only mean greater availability to contraceptives through government assistance.

 

Although much more could be said on the subject, it is enough to note that construing Obama’s statements in such a favorable way while ignoring the bulk of his record on abortion is not the stuff of rigorous casuistry.

Prayers and Material Support for the People of Haiti

The devastating earthquake that struck Haiti has imposed immeasurably greater suffering on a nation whose people's suffering was already immeasurable.  Yesterday the Haitian-American writer Edwidge Danticat said that "it is unimaginable how the country will be able to recover from this."  President Obama called on all Americans to join in prayer for the people of Haiti.  For those who wish to offer material support in addition to prayers, there is a wonderful Catholic relief organization called "Hands Together" that has been working among the poor in Haiti for nearly twenty-five years.  Its founder and leader, Fr. Thomas Hagan OFSF, has dedicated his life to the effort.  Here is a link to the website:  http://www.handstogether.org/organization/  "Hands Together" practices responsible financial management and makes extremely effective use of funds it receives.  It is an organization very much worth supporting, especially at this time of crisis.

Crits, etc.

The Cambridge professor of theology,  Denys Turner, has noted "in much continental philosophy, from Heidegger to Levinas and Derrida, it is acknowledged, with varying degrees of unease at having to concede the point, that the predicaments of our culture have an ineradicably theological character." Back in 2004, Paul Griffiths made a similar point in a First Things essay, titled "Christ and Critical Theory," which explores the Christian yearning of the likes of Lyotard, Badio, Eagleton (then a disaffected post-marxist), and Zizek.

If one takes the Crits to be involved with a philosophical engagement with difference, then their connection to a form of Christianity has been noted by theologians for some time. Points of contact exist between apophatic religion and the philosophical concern for difference, religious skepticism, and lived experience. Apophaticism is a via negativa approach to the divine where God is nameless because, in the words of Meister Eckhardt, "no one can say anything or understand anything about him." The Crits, in their veneration of difference, negate the hegemonic traditions, thus leaving a space for apophasia, since positive namings of God are a part of the negated tradition.

What remains paramount for the Crits is experience. The lived experience of moral sentiments substitute for rational discourse, since such discourse is viewed as hopelessly rooted in authoritative traditions of moral reason that must be de-centered. Some, such as de Lubac, Balthasar, (and recently Pickstock and Millbank), see a genealogy for this in Ockham's nominalism--the separation of language from reality. 

There is much of interest here, but I think a thoughtful Catholic will also find much with which to disagree.

Tuesday, January 12, 2010

"like" and "dislike"

I would very much like to express that I  "like" Patrick's "unfriend" post but alas we don't have a "like" option available to our readers.  And, since we don't have a comment option, I have to express my "like" in a separate post.

Catholic Crits

Many thanks to Rob for the interesting and salutary thoughts on what 'Crits' and 'Catholic Legal Theorists' might share, and the invitation to all of us to begin a discussion on the subject.  There's indeed much to say on this subject and regrettaby I've little time at the moment to say much at all on it.  But I'll return to the subject later, for what ever my thoughts on it might be worth.  In the meanwhile, I think MoJers and friends might be intrigued to know that Roberto Unger has long understood himself to be passionately Catholic, and I for my part thus understand him as well.  (I helped him teach a course about six years back while a graduate student and have been one of his many occasionally critical friends, I suppose, since before then and since.)  Of course his modes of thinking are perhaps more in keeping with those associated with Gustavo Guttierez and other liberation theologians than they are with, say, those of Karl Rahner, but in my humble opinion that's all to the good; and certainly his thinking does not seem to me fundamentally incompatible with that of more 'orthodox' theologians in any event.  RMU also, intriguingly, keeps abreast of current theological publications.  He's a remarkable if (delightfully!) eccentric and occasionally (again delightfully) over-the-top fellow, and for what it is worth I think we're all quite blessed to have him.  

unfriend

I read on p. 32 of the TLS dated January 1, 2010 that "Oxford University Press has chosen 'unfriend' as the Oxford Word of the Year, in view of the fact that it has recently gained currency as a verb -- as in 'I had to unfriend my roommate on Facebook after we had a fight.'  Unfriend, says OUP in that annoying see-how-unstuffy-we-are way, 'has real lex-appeal."  Lex, as if you needed to be told, is a contraction of lexicographer."

That unfriend is the OUP word of the year reminds me of something a *friend* who teaches Aristotle to undergraduates told me a little while back.  Though they liked some of what they discovered in Aristotle, the undergraduates didn't like at all Aristotle's judgment that, given what friendship really is, we can't possibly have very many of friends.  I don't myself know how Facebook operates, but I know enough to conclude that "friending" on Facebook doesn't involve the claim that the souls one "friends" and  potentially "unfriends" have, as Aristotle said true friends do, a shared vision of the good.  Given the popularlity of Facebook, it's a real shame that its choice of terminology for an action of potentially trivial inclusion continues the work of cheapening the concept of friendship.  And yes, I know I sound like a fuddy-duddy, and my friends know why. 

Monday, January 11, 2010

MoJers and Crits unite!

I rarely sit down and go through an entire law review issue, but I highly recommend reading the recent Pepperdine Law Review issue devoted to the school's recent conference, "Is There a Higher Law? Does It Matter?"  The issue includes many strong papers, including particularly interesting ones by  (MoJer) Patrick Brennan, Albert Alschuler, and Bill Brewbaker, but I was especially struck by Peter Gabel's "Critical Legal Studies as a Spiritual Practice."  The "crits" are often subject to caricature, which is to be expected, I suppose, when a school of thought has built itself by painting caricatures of other schools of thought.  Gabel, one of the founders of CLS, writes a very helpful explanation and defense of the movement.  He writes that, "while appeals to a Higher Law certainly can be used to rationalize unjust power relations, I do not believe that they must do so; and even more . . . I believe CLS was always fundamentally a spiritual enterprise that sought to liberate law and legal interpretation from its self-referential, circular, and ideological shackles."

As Gabel portrays it, there is actually a great deal of synergy between CLS and the Catholic legal theory project.  The indeterminacy critique of law, for example, is "basically a bummer" that leaves "the listener in a kind of secular liberal hell of scattered and disconnected individuals with no common passion or direction binding us together."  This flaw helped unravel the movement because:

Not only did this erasure of moral purpose disarm the CLS movement of its most compelling spiritual feature -- namely its link to a powerful, transformative vision of a socially just world -- it also seemed to dismiss as unimportant, and even trivial and misguided, the experience of moral dislocation, social isolation, and meaningless that is precisely the most spiritually painful aspect of modern liberal culture.

Consider this vision of a CLS course in Contracts:

[The course] should subordinate its use of the indeterminacy critique to a meaning-centered critique emphasizing how the rules presupposing the legitimacy and desirability of individualistic, self-interested bargains . . . among an infinite number of socially disconnected strangers bound by no common moral purpose or spiritually bonded social community outside their respective blood relatives are rapidly destroying the planet, in part, by making use of liberal abstractions like freedom of choice that make it appear that this lonely destiny is what people really want.

What CLS must aim for, in Gabel's view, is "a new spiritual activism actively connecting Self and Other."  I think the Catholic legal theory project is better equipped to provide substance to the bonds connecting Self and Other, but in terms of orientation, it sounds like CLS and CLT are, if not kindred spirits, at least spirits sharing many of the same concerns about law.  Thoughts?

One Explanation of Catholic Legal Theory?

 

 

I recently read the address given by Pope Benedict to the alumni, rector, and students of the Pontifical North American College in Rome this past weekend. [address HERE] The College was celebrating its one hundred and fiftieth anniversary. In his remarks to those in attendance, the Holy Father noted that the College has the mission of educating and producing “wise and generous pastors capable of transmitting the Catholic faith in its integrity, bringing Christ’s infinite mercy to the weak and the lost.” But the Pope also noted that the mission of these pastors-in-formation is to “enabl[e] America’s Catholics to be a leaven of the Gospel in the social, political and cultural life of their nation.”

I paused to consider whether this last element—to enable America’s Catholics to be a leaven of the Gospel in the social, political, and cultural life or our nation—represents an important component of what we here at the Mirror of Justice are attempting to do in our formation of Catholic legal theory? My answer to this question is: yes!

As educators, we prepare younger men and women for careers in the legal profession and other fields where legal training is or may be relevant to their vocation. Regardless of where our students find themselves later in life, they will have a significant influence on forming the social, political, and cultural institutions of the United States and beyond. Hence, it may prove worthwhile to commence each day with a series of related questions: Where is Christ in my life? How will I present Him to those whom I encounter? Will the Gospel inspire my work this day? Will the deposit of faith accessible through the Church’s teachings influence the questions I raise and the issues I address with those whom I deal? Will the Catholic intellectual tradition that has permeated the transmission of our faith be an essential element of what I do, what I say, how I conduct myself, and how I think?

It strikes me that Pope Benedict’s message to present and future pastors, in fact, has the potential to mold positively the discipleship of a much wider group of individuals including those who attempt each day to contribute to the development of Catholic legal theory.

 

RJA sj

 

Welcome the sex robots (?)

The fact that I'm posting this will reveal me as someone who occasionally frequently consults the Drudge Report, but it's worth it to bring attention to one of the saddest news reports I've read in a long time, though given current views on sex, perhaps this development doesn't represent much of a change.

Sad quote:"The dark-haired, negligee-clad robot said 'I love holding hands with you' when it sensed that its creator touched its hand."

Even sadder quote: "[Artificial intelligence expert] David Levy argues that robots will become significant sexual partners for humans, answering needs that other people are unable or unwilling to satisfy."

Defense in the Case of Tiller Murder

The trial starts today of the man accused or murdering Dr. George Tiller.  The judge has already rejected the defendant's claim of a necessity defense - that he should be acquitted because his action was necessary to prevent a greater harm.  However, in doing so, the judge has also indicated that he might allow jurors to consider a defense theory that would allow conviction of voluntary manslaughter rather than manslaughter based on the defendant's “unreasonable but honest belief that circumstances existed that justified deadly force.” (The New York Times report is here.)

I find this very troubling.  No opposition to abortion can justify the intentional killing of another being, even one who provides abortions.  Whether or not one believes the claims of abortion rights advocates that allowing such a defense would “embolden anti-abortion extremists and could result in ‘open season’ on doctors across the country,” it does send a signal that such actions are less than the murders they are.