Tuesday, September 29, 2009
And the MOJ party rolls on! Robby George joined us a few weeks ago and today I am delighted to announce that Bob Hockett (Cornell) has also signed on. For more about Bob's wide-ranging, excellent work, go here.
Strange (but interesting) times, I suppose, when "A blog dedicated to the development of Catholic Legal Theory" has more participants from Cornell than from Notre Dame, Boston College, or -- well, almost anywhere (Go, St. Tommy, go!).
What The Constitution in 2020 calls a “progressive vision of constitutional law in the years ahead” should, I believe, re-discover, incorporate, and emphasize what might seem a not-very-progressive – because very old – idea. Here it is: Constitutionalism generally, and religious freedom more specifically, are well served by the protection and flourishing of an array of self-governing non-state authorities. The Jacobins were wrong. In a nutshell, religious liberty is both nurtured in and protected by – it needs, I think – religious communities, associations, and institutions.
Take a look at Brian Leiter's new paper, posted on SSRN, "Foundations of Religious Liberty: Toleration or Respect?" Here is the abstract:
Should we think of what I will refer to generically as “the law of religious liberty” as grounded in the moral attitude of respect for religion or in the moral attitude of tolerance of religion? I begin by explicating the relevant moral attitudes of “respect” and “toleration.” With regard to the former, I start with a well-known treatment of the idea of “respect” in the Anglophone literature by the moral philosopher Stephen Darwall. With respect to the latter concept, toleration, I shall draw on my own earlier discussion, though now emphasizing the features of toleration that set it apart from one kind of respect. In deciding whether “respect” or “toleration” can plausibly serve as the moral foundation for the law of religious liberty we will need to say something about the nature of religion. I shall propose a fairly precise analysis of what makes a belief and a concomitant set of practices “religious” (again drawing on earlier work). That will then bring us to the central question: should our laws reflect “respect” for religion” or only “toleration”? Martha Nussbaum has recently argued for “respect” as the moral foundation of religious liberty, though, as I will suggest, her account is ambiguous between the two senses of respect that emerge from Darwall’s work. In particular, I shall claim that in one “thin” sense of respect, it is compatible with nothing more than toleration of religion; and that in a “thicker” sense (which Nussbaum appears to want to invoke), it could not form the moral basis of a legal regime since religion is not the kind of belief system that could warrant that attitude. To make the latter case, I examine critically a recent attack on the idea of "respect" for religious belief by Simon Blackburn.
Although I think that Prof. Leiter's conclusion that "religion is not the kind of belief system that could warrant [thick respect]" is misguided (in part because his understanding of "religion" is not mine), I find this paper -- like his earlier piece, "Why Tolerate Religion?" -- kind of refreshing, bracing even. Like Prof. Leiter, I come away from works like Prof. Nussbaum's new book on religious liberty not sure that any case has (or, given the working premises, could) been made for religious liberty. Perhaps, as Prof. Steve Smith has been saying for a while, the only solid arguments for religious freedom (that is, for something more than a cost-benefit-based "toleration" of religion) are themselves "religious" or, at least, depend on anthropological and other foundations that we -- even if we are willing to invoke them from time to time -- no longer really accept?
Just a little something to think about over lunch . . .
Pres. Obama has nominated Prof. Chai Feldblum to be a member of the EEOC (thanks to Prof. Friedman for the link). This article of hers, "Moral Conflict and Liberty: Gay Rights and Religion", might be of interest. She concludes:
[W]e gain something as a society if we acknowledge that a law requiring individuals to act in a certain way might burden some individuals’ belief liberty. Such an acknowledgement is necessary if we wish to be respectful of the whole person. Protecting one group’s identity liberty may, at times, require that we burden others’ belief liberty. This is an inherent and irreconcilable reality of our complex society. But I would rather live in a society where we acknowledge that conflict openly, and where we engage in an honest dialogue about what accommodations might be possible given that reality, than to live in a society where we pretend the conflict does not exist in the first place.
But in dealing with this conflict, I believe it is essential that we not privilege moral beliefs that are religiously based over other sincerely held core, moral beliefs. Laws passed pursuant to public policies may burden the belief liberty of those who adhere to either religious or secular beliefs. What seems of paramount importance to me is that we respect these core beliefs and do the best we can in this imperfect world of ours to protect both.
It seems to me that the existence of the Free Exercise Clause provides at least *some* reason for "privileg[ing]" beliefs -- or, I would say, specially accommodating -- when we are dealing with this particular conflict.
Here (thanks to Michael Sean Winters, at America, for the link) is a piece, by David Niremberg, on the Pope's recent encyclical, Caritas in Veritate. (I posted some thoughts, here, a while back about the encyclical and the ways that, in my view, it was being understood and misunderstood.)
It is, to be sure, a good and welcome thing that a magazine like The New Republic appreciates the significance of Caritas, and devotes space to thinking about it. "Benedict," he says, "is an influential voice asking a basic question about our markets and our societies: can the values they require to function properly be produced from within themselves, or must those values come from beyond themselves? His question, and his answer, deserve our critical attention. . . . [P]apal economics are built upon a shared bedrock of belief: the conviction that material prosperity is important, but that humans were created for a higher good; that they cannot escape the dangers of mere materialism and achieve that higher good without God's help; and finally that the price of failure in this effort is nothing less than the loss of our humanity."
There are some places where Niremberg and I would disagree. He is too quick to see "dogmatism" in the Pope's (unremarkable) claim that Christianity provides the best (indeed, really, the only) foundation for integral human development. This concluding paragraph, in particular, disappoints, in its breezy embrace of the (I would have thought) worn-out insistence that Christians' proposals about the world -- if they are to affect the world -- should not be specifically Christian, and should not be presented as grounded in truth:
In a de-secularizing age, and with our faith in self-interest shaken by economic crisis, we should want to draw on the wisdom in that ocean of thought. But if those teachings are to contribute to global "unity and peace," they will have to be taught in a way that seeks to transcend the boundaries of the traditions that produced them. This does not mean, as Benedict fears, that Christianity (or any other religion) must become "more or less interchangeable with a pool of good sentiments, helpful for social cohesion, but of little relevance," or that "there would no longer be any real place for God in the world." Values are not a zero-sum game. God's place in the world is not lost when one religion tries to translate some of its truths into helpful good sentiments for those of other or no faith, something that Pius XI and John Paul II both understood. Benedict presents his encyclical as a continuation of their teaching, but in this regard he did not follow their example. His "love" is narrowed by his "truth."
I do not see this "narrow[ing]," but, in any event, read the whole thing. I'd welcome others' reactions.
On Saturday, I had the pleasure of joining a number of my fellow MOJ-ers at Villanova for the Joseph T. McCullen, Jr. Symposium on Catholic Social Thought and the Law. It was a wonderful event. At the same time, it was, for many of us, bittersweet, in that it reminded us of the leadership that our friend Mark Sargent provided, for many years as Villanova's dean, to those of interested in bringing the resources of the Catholic Social Tradition to law and legal scholarship.
I will not hope to summarize the whole conference, and I hope my colleagues who were there will share their own reactions. I was particularly impressed with Dean Thomas Mengler's (St. Thomas) keynote, "Why Should a Catholic Law School Be Catholic?" And, I thought Susan Stabile's remarks -- "Vocation, Formation, and the Next Generation" -- were particularly helpful, given that my new role as Associate Dean at Notre Dame has prompted me to think more about what we at a Catholic law school should mean by, and aspire to with, "formation." John Breen and Lee Strang closed out the event with an interesting presentation of the early history of Catholic law schools, and suggested that these schools missed an opportunity, in the early-mid century, to develop a distinctive intellectual character and scholarly mission. Their paper was, for me, a reminder that the current "Catholic Law School Project", in which many of us are engaged, is not reactionary or nostalgic; we are attempting something new and exciting.
One of the most disturbing and unpleasant things I've had to do in a long time was to spend three hours on a Monday evening at a training program for volunteers at our parish school. This training program is mandated by our Archdiocese -- along with a criminal background check -- for anyone who wants to volunteer at the school, even parents like me whose volunteering is limited to two or three stints a year as recess monitor, field trip chaperone, or helper at a school party. For three hours, I watched videos in which victims of child sexual abuse talked about the experience of being abused, abusers described about their techniques for getting children into situations in which they could be abused, and experts told me how to protect my child, and all children, from such abuse.
Now, I'm going to describe my reaction to this experience, not because I think my reaction is necessarily a justified reaction, but rather because my reaction causes me to wonder whether we need to seriously question the extent to which the Church -- and its lawyers (our students?) -- are contributing to the sexualization of children. Can all of the blame for the sexualization of children can be placed on those who it's always easiest to blame -- in the words of Robby's recent post: "mainstream advertisers, . . .the entertainment industry, and . . . sex "educators."" ?
For three hours, I was forced to think about my child -- indeed, all children -- as sexual objects. Of the many emotions evoked by that experience -- disgust, sadness, pity, fear, hopelessness, horror -- the overwhelming emotion I felt was anger. But, quite honestly (and again, I freely admit this may not be justified, but it's what I honestly felt), it wasn't anger at the abusers. It seems to me that people with tendencies to abuse children have always been around and will always be around in our fallen world. I was mostly angry at the Church, which by its initial mismanagment of the sexual abuse crisis, got us to the point where parents have to be forced to sexualize their children before they can volunteer in their children's schools. I understand the "lawyering perspective" here -- the Church has been financially devasted by these lawsuits and has a financial incentive to build as strong a buffer as possible against future legal liability. But these attempts at insulation from future lawsuits come at a significant cost. Some parents will simply not volunteer. Those who do are forced to do so with the mandate (the strong message from the training session) that we should be constantly aware of our children's identities as sexual objects, because we are all responsible for making sure no child is sexually exploited on our watch.
Is that really what's necessary to protect our chldren? Or is it overkill by a Church that's being over-protected by its lawyers? I honestly, truly, do not know the answer to that question. Any thoughts on this? If increasing the awareness of our children as sexual objects is, indeed, necessary to protect them, then I frankly think we're going to have a tough time with any larger social campaign against the sexualization of children.
On the topic of the sexualization of children, one particularly passionate and articulate defender of children, Mary Leary at Catholic, has just posted a new paper: "Death to 'Child Erotica'". From the abstract:
The world of child sexual exploitation is a complex one including many crimes. Research and caselaw indicate that child pornography often is found intertwined with other sexual material demonstrating a sexual interest in children. Such material includes, but is not limited to, sexualized pictures of nude or semi-nude children; surreptitiously recorded videos of children focusing on their breasts or genitals; writings on the most successful methods of facilitating child molestation, etc. That child pornography producers and collectors can often possess some such material is perhaps of no surprise. That criminal courts are referring to such material with the artistic term of “child erotica,” suggesting validation, is problematic. Its use must cease.
Within the last decade there has been a significant international movement to replace the term “child pornography” with the label “child abuse images.” This change is motivated by a realization that the latter term more clearly identifies the content of the material, and avoids the suggestion that such victimization is analogous to possessing adult pornography. This paper proposes a second step to this movement, removing from our language the term “child erotica” and replacing it with descriptive norms or, when labels are necessary, the more precise terms of “child exploitation images” and “child exploitation paraphernalia.”
Just as the term “child pornography” has been replaced in research and legal circles,” the use of the term “child erotica” should be reclaimed and replaced. The term is troubling for three main reasons. First, linking the words “child” and “erotica” is misleading. Using an artistic label incorrectly suggests it references a genre of art. Second, it validates the material to which it refers. Such a term contributes to the social phenomenon known as the normalization of the sexual objectification of children, as it suggests there are circumstances when the sexual objectification of children by adults is appropriate and socially valued. Third, that the misnomer is emerging in legal opinions compounds the problem. The term has been improperly incorporated by the criminal courts. Divorced from its roots in art and literature, it claims to reference anything, no matter if sexually exploitive or truly artistic, that fails to meet the legal definition of child pornography or child abuse images. When courts are reviewing evidence, they need precise labels to most effectively make determinations. By grouping all legal material together under one inaccurate label: “child erotica,” courts can miss the relevance of some of the evidence, thereby risking improper outcomes. . . .
Language matters. Labels matter. Socially, language and labels matter because they can reflect cultural norms and values. In criminal litigation, labels matter because inaccurate labels can contribute to inaccurate assessment of evidence which can cause inaccurate results. At times, terms are so inaccurate and misleading, they become damaging. “Child erotica” is such a term and it must be replaced.
Monday, September 28, 2009
The most recent issue of Commonweal has a fascinating article on the interaction between St. Francis of Assisi and Sultan Malik al-Kamil during the Fifth Crusade. The piece is an adaptation of Paul Moses' The Saint and the Sultan: The Crusades, Islam, and Francis of Assisi’s Mission of Peace, to be published September 29 by Doubleday Religion. For more information, go to www.saintandthesultan.com.
Sunday, September 27, 2009
I leave Cantabria tomorrow for St. Jean Pied de Port, Fr where I will start walking on Tuesday. But, the Camino has been with me from the beginning. I met a law professor from Melbourne on the Metro in Madrid who told me she plans to walk the Camino on her sabbatical in the Spring. A couple of days ago, I met a Frenchman who is cycling the Camino del Norte, which runs past the place I am staying in northern Spain.
The Camino has started in the most profound way as I struggle to understand what is being said to me and as the conversations past me by as I struggle to formulate the most simple responses. Fortunately, the family here is very patient with me as I attempt rudimentary Spanish. And, it helps that time has stood still for me like the farmer down the street harvesting hay with a scythe and loading the hay on a horse drawn cart. Without the compulsion to run from activity to activity, I am able to relax as I try to communicate.
Sunday lunch is calling so that is all for now.
StatCounter
PageViews
Since February 19, 2008
