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.

Tuesday, July 7, 2009

Cardinal Cottier's confusion

By Rick Garnett

A few days ago, Michael P. linked to some recent, highly complimentary remarks by Cardinal Georges Cottier about President Obama, abortion, politics, Notre Dame, etc.  Others have also noticed and welcomed these remarks.  I expressed, here, some skepticism.  That skepticism is increased and, I think, confirmed, by this passage, taken from the Cardinal's statements:

In his speech at the University of Notre Dame, I was struck by how Obama did not avoid facing the most thorny question, that of abortion, on which he has received so many criticisms, including from the United States bishops. On the one hand, these reactions are justified: political decisions on abortion involve nonnegotiable values. For us, what is at stake is the defense of the person, of his inalienable rights, the first of which is the right to life. Now, in pluralistic society there are radical differences on this point. There are those who, as we do, consider abortion an "intrinsece malum," there are those who accept it, and then there are those who assert it as a right. The president never takes this last position.

But, of course, the President has been exquisitely clear regarding his view that abortion is, in fact, a right.  We might well believe the President and others in the administration when they indicate a desire to reduce the "need for abortions" -- and so, by extension, the number of abortions -- but there is no doubt that the President believes that there is a constitutional -- and, indeed, a moral -- right to choose abortion.

Caritas in Veritate & The Economy of Communion

By Amy Uelmen

It's rare for a specific project to get a shout-out in a papal enclyclical, but here's an exception:  As John Allen connects the dots here and here, this paragraph of Caritas in Veritate: 

46. When we consider the issues involved in the relationship between business and ethics, as well as the evolution currently taking place in methods of production, it would appear that the traditionally valid distinction between profit-based companies and non-profit organizations can no longer do full justice to reality, or offer practical direction for the future. In recent decades a broad intermediate area has emerged between the two types of enterprise. It is made up of traditional companies which nonetheless subscribe to social aid agreements in support of underdeveloped countries, charitable foundations associated with individual companies, groups of companies oriented towards social welfare, and the diversified world of the so-called “civil economy” and the “economy of communion”. This is not merely a matter of a “third sector”, but of a broad new composite reality embracing the private and public spheres, one which does not exclude profit, but instead considers it a means for achieving human and social ends. Whether such companies distribute dividends or not, whether their juridical structure corresponds to one or other of the established forms, becomes secondary in relation to their willingness to view profit as a means of achieving the goal of a more humane market and society. It is to be hoped that these new kinds of enterprise will succeed in finding a suitable juridical and fiscal structure in every country. Without prejudice to the importance and the economic and social benefits of the more traditional forms of business, they steer the system towards a clearer and more complete assumption of duties on the part of economic subjects. And not only that. The very plurality of institutional forms of business gives rise to a market which is not only more civilized but also more competitive. 

is referring specifically to the Focolare Movement’s “Economy of Communion” project.  For more information about the Economy of Communion project, here is a link for an overview essay I co-authored with Italian economist Luigino Bruni, who has written extensively about the project, and here is the Economy of Communion's international website.  The July 2009 issue of the Focolare's monthly magazine, Living City includes a series of articles about the project. 

 

Papa Ratzi Gives a Shout Out to MOJ

By John M. Breen

At the close of his new encyclical Caritas in Veritate, Pope Benedict offers a prayer to the Blessed Mother:

 

 

 

“May the Virgin Mary — proclaimed Mater Ecclesiae by Paul VI and honoured by Christians as Speculum Iustitiae and Regina Pacis — protect us and obtain for us, through her heavenly intercession, the strength, hope and joy necessary to continue to dedicate ourselves with generosity to the task of bringing about the ‘development of the whole man and of all men.’”

 

 

 

O.K., so Papa Ratzi doesn’t specifically mention the women and men of MOJ by name, but he does give a renewed emphasis to Mary as “Speculum Iustitiae”  -- Mirror of Justice – under whose patronage we blessed to engage in the project of thinking and writing about legal theory from a Catholic perspective.

Caritas in Veritate

By Robert John Araujo, SJ

 

 

Thanks to Michael S. for posting the Pope’s new encyclical Caritas in Vertate, which was released earlier today in Rome. The first thing worth noting about it is this encyclical is addressed to all the faithful, the People of God, and all men and women of good will. In contrast, Deus Caritas Est, his first encyclical, was addressed only to the members of the Church—clerical, religious, and lay faithful. And his second encyclical, Spe Salvi, was similarly addressed. However the social encyclical addresses a much larger, perhaps even universal, audience.

After a brief introduction, the structure of the encyclical letter is formulated around six primary sections: the first reexamines the significance of Paul VI’s 1967 encyclical Populorum Progressio; the second considers the issue of human development in “our time”; the third concentrates on the interrelated issues of fraternity, economic development, and civil society; the fourth investigates together several matters dealing with the development of people, their rights and duties, and the environment; the fifth considers cooperation within the human family; and, the sixth studies the development of peoples within the framework of technological developments. As is typical, an integrating conclusion winds up the encyclical. I will offer a brief and, most likely, too broadly painted commentary on each of these components:

 

The Introduction

Here Benedict emphasizes the nexus between “charity in truth” and the witness given by Christ in his earthly life. The Pope states that the driving force for authentic development of every person and the common good is love—caritas—exemplified by Jesus Christ. And it is this love that Christ taught that is the truth that underpins authentic human progress. Moreover, it is this love and the truth about it that are central to the Church’s social teachings. But if charity and truth are not inextricably linked, each can become a distortion of its authenticity. As the Holy Father states, “Truth needs to be sought, found and expressed within the ‘economy’ of charity, but charity in its turn needs to be understood, confirmed and practised in the light of truth.” [N. 2] He goes on to say, “In the truth, charity reflects the personal yet public dimension of faith in the God of the Bible, who is both Agápe and Lógos: Charity and Truth, Love and Word.” [N. 3] Within this idea is the meeting of the individual and the other wherein the personal and the common goods intertwine. A final important element of this rich introduction is this point which the Holy Father has raised elsewhere in his exhortations about the relation between the Church and civil society, including the State: “The Church does not have technical solutions to offer and does not claim ‘to interfere in any way in the politics of States.’ She does, however, have a mission of truth to accomplish, in every time and circumstance, for a society that is attuned to man, to his dignity, to his vocation.” [N. 9] The Pope then turns to his consideration of Paul VI’s encyclical On the Development of Peoples.

 

The encyclical Populorum Progressio

The first thing that Benedict does in this section is to emphasize the continuity among his encyclical, that of Paul VI, and the social teachings of the Church. Even though new issues may emerge in the human condition with the passage of time, the Church’s teachings are still rooted in the eternal wisdom of God. As Benedict phrases it, the “truth of the faith, namely that the Church, being at God's service, is at the service of the world in terms of love and truth.” [N. 11] This certainty, he continues, is based on two points: (1) the Church is and must be engaged in promoting integral human development, and (2) authentic human development concerns the whole of the person uniting all single human dimensions. In short, it is essential to see human existence as the integration of physical and eternal life. Without this crucial synthesis being appreciated, human development and human existence are at the mercy of the prevailing and dominant influences of human history. While Benedict emphasizes continuity in the Church’s teachings, he characterizes it in this fashion: “Coherence does not mean a closed system: on the contrary, it means dynamic faithfulness to a light received.” [N. 12] While Benedict raises many important issues in this segment, he emphasizes the meaning and value of human life that are essential to true human development. Without recognition of the essence of the human person and human life, any theory of “human development” or “human progress” will be deficient.

 

Human development in “our time”

This segment of the encyclical again relies on the work and analysis of Paul VI and acknowledges the essential interrelation of the challenges to physical human development (health, economy, and social relations) and the truth of human nature and the essence of human existence. This interrelationship has been increasingly challenged by the physical “progress” of human society which evolves from the fragmentation of human wisdom. As Benedict proposes, “We recognize, therefore, that the Church had good reason to be concerned about the capacity of a purely technological society to set realistic goals and to make good use of the instruments at its disposal.” [N. 21] These challenges are intensified when “profit” rather than “authentic development” define progress. Here he illustrates well his point by examining in some depth the current global economic crisis. For a remedy to this crisis, the Pope exhorts that “progress of a merely economic and technological kind is insufficient. Development needs above all to be true and integral.” [N. 23] As he notes further, combating this challenge is within the competence of the human person, society, and the institutions they develop. The failure to meet and overcome the challenges that face the world today can be traced to the absence of love and truth. As he states, “There is always a need to push further ahead: this is what is required by charity in truth. Going beyond, however, never means prescinding from the conclusions of reason, nor contradicting its results. Intelligence and love are not in separate compartments: love is rich in intelligence and intelligence is full of love.” [N. 30]

 

Fraternity, economic development, and civil society

This element of the encyclical recalls the interrelation between giving and receiving. God has given us much, but through the influence of original sin—of turning from God and into one’s self—it seems to be the case that it is important only to receive; to give is something rarely if ever considered. As he says,

The conviction that man is self-sufficient and can successfully eliminate the evil present in history by his own action alone has led him to confuse happiness and salvation with immanent forms of material prosperity and social action. Then, the conviction that the economy must be autonomous, that it must be shielded from “influences” of a moral character, has led man to abuse the economic process in a thoroughly destructive way. In the long term, these convictions have led to economic, social and political systems that trample upon personal and social freedom, and are therefore unable to deliver the justice that they promise. [N. 34]

Hope must not be restricted to the present moment; it must be viewed as something that ties one and all to the future and our common human destiny that is easily forgotten and sometimes denied. Here the Pontiff emphasizes a crucial element of Catholic social thought, i.e., solidarity and the common good. Failure to recognize this critical nexus cannot rest upon the limitations of our social, economic, and political institutions; it must rest with the human person and the community of human persons, for it is they who confect these institutions that can and do fail; but they can also succeed if that is the will and hope of man and his brothers and sisters. As Benedict properly asserts, “it is man’s darkened reason that produces these consequences, not the instrument per se. Therefore it is not the instrument that must be called to account, but individuals, their moral conscience and their personal and social responsibility.” [N. 36]

 

The development of people, their rights and duties, and the environment

This fourth element of the encyclical identifies the problems that emerge from the exaggerated autonomy that is characteristic of many aspects of the contemporary world. When the issue of “the development of people” is replaced with the notion of “the development of the isolated and autonomous individual,” the critical nexus of rights and responsibilities is abandoned. In this regard, we may recall the teaching of Jesus that in order to save one’s self, it is necessary to lose one’s self. This does not mean that caring for the self is the problem; it is the problem when self-care takes place without consideration of the other and the world in which the individual person finds himself or herself. As Benedict concludes, “it is important to call for a renewed reflection on how rights presuppose duties, if they are not to become mere license.” [N. 43] A proper understanding to the rights of the individual must exist in the context of the anthropological and ethical framework that necessitates the consideration of not just the one or the group but the every and the all. At this point the Pope addresses population issues, and here he states that human sexuality “cannot be reduced merely to pleasure or entertainment, nor can sex education be reduced to technical instruction aimed solely at protecting the interested parties from possible disease or the ‘risk’ of procreation.” [N. 44] As he further states:

Morally responsible openness to life represents a rich social and economic resource. Populous nations have been able to emerge from poverty thanks not least to the size of their population and the talents of their people. On the other hand, formerly prosperous nations are presently passing through a phase of uncertainty and in some cases decline, precisely because of their falling birth rates; this has become a crucial problem for highly affluent societies. The decline in births, falling at times beneath the so-called “replacement level”, also puts a strain on social welfare systems, increases their cost, eats into savings and hence the financial resources needed for investment, reduces the availability of qualified laborers, and narrows the “brain pool” upon which nations can draw for their needs. [N. 44]

In tying the various points of this section together, the Holy Father emphasizes that much depends on the underlying principles of morality and whether they are subjectively or objectively determined and defined. The truth about the objective and transcendent moral order is crucial to all issues, be they those that concern population growth or the economy or anything else including the environment that surrounds the human family. As the Pontiff insightfully argues, “The way humanity treats the environment influences the way it treats itself, and vice versa.” [N. 50]

 

Cooperation within the human family

Throughout the encyclical, Benedict portrays a variety of dimensions of human poverty. In this segment he identifies an underlying element that tends to affect or produce these various manifestations of poverty: human isolation. In short, he advances the idea that material and spiritual poverties “are born from isolation.” [N. 53] When man is by himself, even though he may be surrounded by plentiful material goods, he is poor; when he is isolated from the care, concern, and love of others, he is indigent; when he cuts himself off from all others including God, he is destitute. As the Pope states, “All of humanity is alienated when too much trust is placed in merely human projects, ideologies and false utopias... The development of peoples depends, above all, on a recognition that the human race is a single family working together in true communion, not simply a group of subjects who happen to live side by side.” [N. 53] What provides vital assistance to the Christian in this context is a realization and acceptance of the vital need for relation: as God is related in the Trinity, so man must be related to his fellow brothers and sisters. The role of unity is crucial to the success of the human person and the human family. Here the Pope reintroduces the significance of the theme of religious liberty, which is discussed in various parts of the encyclical:

The Christian religion and other religions can offer their contribution to development only if God has a place in the public realm, specifically in regard to its cultural, social, economic, and particularly its political dimensions. The Church’s social doctrine came into being in order to claim “citizenship status” for the Christian religion. Denying the right to profess one’s religion in public and the right to bring the truths of faith to bear upon public life has negative consequences for true development. The exclusion of religion from the public square — and, at the other extreme, religious fundamentalism — hinders an encounter between persons and their collaboration for the progress of humanity. Public life is sapped of its motivation and politics takes on a domineering and aggressive character. [N. 56]

The Holy Father goes on to explain that human progress needs to take stock of the fruitful relationship between faith and reason which is kin to charity and truth. Recognition of this relationship brings us closer to realizing God’s plan for all His most beloved creation, the human family and all its members. Moreover, the way to achieve this objective is by putting aside parochial interests and pursuing instead an encompassing cooperation that fosters development for all in matters economic, social, cultural, political, and spiritual. In short, I think Benedict is assisting the faithful and all people of good will to see that the progress of the ego must necessarily be tied to progress for the other as well because each of us reflects not only the image of the self but also the image of the other and God. Another way of putting it is this: as I am, so you are; as you are, so am I.

 

The development of peoples within the framework of technological developments

Finally, the Pope looks at the relation between human development and the extraordinary progress in technology over the last several decades. He suggests that a lesson is to be learned from the tragedy of Prometheus: the reliance on technological development must ultimately lead each and every person to the realization that it is a part of God’s command “to till and keep the land.” [N. 69] Technology is a tool rather than an end. If it is pursued as an objective by itself rather than as a means to something more noble, human existence and the truth upon which it depends may lie forfeit. Advances in technology that do not take account of moral responsibility will inevitably lead the human family away from rather than to authentic human development. Here the Pontiff’s prescient words are particularly revealing:

Development is impossible without upright men and women, without financiers and politicians whose consciences are finely attuned to the requirements of the common good. Both professional competence and moral consistency are necessary. When technology is allowed to take over, the result is confusion between ends and means, such that the sole criterion for action in business is thought to be the maximization of profit, in politics the consolidation of power, and in science the findings of research. [N. 71]

The Pope’s critical eye aids us in seeing the truth that authentic human development is ultimately tied to the entirety of human existence that includes the welfare not simply of the body but also of the soul; not only of the present moment but also of eternity. [N. 76]

 

Conclusion

At this point in the encyclical, the Pope advances a fundamental theme in his presentation: the human person cannot truly advance or develop without God and without his fellow human beings. As he states, “Only if we are aware of our calling, as individuals and as a community, to be part of God’s family as his sons and daughters, will we be able to generate a new vision and muster new energy in the service of a truly integral humanism. The greatest service to development, then, is a Christian humanism that enkindles charity and takes its lead from truth, accepting both as a lasting gift from God.” [N. 78] With Him, we can become more; without Him, we will surely degenerate into less. As Benedict XVI likes to conclude his public exhortations, he ends this encyclical with a prayer: “ ‘Let love be genuine; hate what is evil, hold fast to what is good; love one another with brotherly affection; outdo one another in showing honour’. May the Virgin Mary — proclaimed Mater Ecclesiae by Paul VI and honoured by Christians as Speculum Iustitiae and Regina Pacis — protect us and obtain for us, through her heavenly intercession, the strength, hope and joy necessary to continue to dedicate ourselves with generosity to the task of bringing about the ‘development of the whole man and of all men’.” [N. 79]

 

I encourage members and readers of the Mirror of Justice to read, savor, and discuss this exceptional text issued this morning. I hope that the broad strokes with which I have portrayed Benedict’s Caritas in Veritate will not be viewed as a substitute for reading and pondering his words but, rather, as a catalyst to tolle lege, to borrow from the words of St. Augustine.

 

RJA sj

 

Law School and the Freedom of the Church

By Rick Garnett

Over at Prawfsblawg, Howard Wasserman has what is for MOJ-ers a must-read post on church-autonomy, the ministerial exception, Catholic law schools, and the latest from Ave Maria School of Law.  He asks, among other things:

3) I would love to hear from Rick and others who study Catholic legal thought and Catholic education (especially legal education) about this case. What is the link between Catholic legal education and the Freedom of the Church? At what point should the Catholic or religious nature of a law school (whose core job, of course, is to teach secular law and to train future lawyers) be deemed so pervasive that every faculty member becomes, at some level, a teacher of religious doctrine or religious ideas? Would a secular inquiry into that professor's performance thus involve evaluation of sectarian matters? In other words, imagine a prawf who teaches civil procedure, but nevertheless is obligated to bring some canon law or Church doctrine into the classroom. Does satisfaction and performance on the religious component become part of the evaluation of her teaching, such that a secular inquiry into the circumstances of any adverse employment action necessarily requires a forbidden inquiry into sectarian matters? And would it be different if that faculty member's teaching package includes Canon Law?

I wrote, in the comments section:

In my view, (i) both the church-autonomy idea generally and the "ministerial exception" specifically are vital aspects of religious freedom; (ii) from this idea and this exception it does not follow that every employee of a Catholic law school is a covered "minister" or that such a law school's contractual relationships with its employees are *all* beyond the reach and review of secular courts; (iii) a Catholic law school (or, for that matter, a University) is not merely an institution where many Catholics happen to study, teach, and write and is not merely a place that happens to offer a course or two in a "Catholic" topic; (iv) it could be true *both* that the Catholic vision appropriately inspires everything that happens in a Catholic law school *and* that tenured faculty are not all "ministers" for purposes of the ministerial exception. That is, while I understand the concern that the "exception" might "swallow the rule" if "everything is part and parcel of faith", it is not clear to me that, in order to save the rule, one has to deny that, at the end of the day, everything *is* "part and parcel of faith."

Also, with respect to the issue of using the term "jurisdictional", I see your point, Howard. At the same time, "jurisdictional" does, it seems to me, emphasize (what I think is) the fact that the immunity at the heart of the "ministerial exception" is not best regarded as a concession or accommodation by secular authority; some things really are, in an important way, beyond the law-saying reach and power of a (just) constitutional government. (Ed.: Fine, then where's the line? RG: Good question.)

Thoughts?  Put them here, and at Prawfs, please!

Caritas in Veritate

By Michael Scaperlanda

Here is the link to the Pope's latest encyclical.

Monday, July 6, 2009

Rev. Robert J. Araujo, S.J. Joins the Law Faculty at Loyola Chicago

By John M. Breen

I am pleased to announce something of which many, but not all, members of MOJ are already aware, namely, that Rev. Robert J. Araujo, S.J. has joined the faculty at Loyola University Chicago School of Law as the inaugural chair-holder of the John Courtney Murray, S.J. University Professorship.  Please join me in congratulating Father Araujo on this appointment.  The law faculties at Gonzaga and Boston College have been fortunate to have had him as a colleague in the past, and those of us at Loyola are delighted to welcome him to Chicago's Jesuit university and to the ongoing project of developing the Ignatian charism in legal education Ad Majorem Dei Gloriam.

By Michael Perry

Politics, morality and original sin

The speeches by US President Barack Obama at the University of Notre Dame and at the Al-Azhar Islamic University in Cairo can be usefully compared with elements of the faith and of Christian social doctrine

by Cardinal Georges Cottier OP
Theologian Emeritus of the Pontifical Household

[You can read the article here.]

By Michael Perry

The Vatican and U.S. women religious

By Richard McBrien
Created Jul 06, 2009

I did not intend to comment on the Vatican's decision late last year to conduct a visitation of religious communities of women in the United States because I expected such a study, to be done under the auspices of the Congregation for Institutes of Consecrated Life and Societies of Apostolic Life, to come up more or less empty-handed as did the Vatican's earlier study of U.S. seminaries and theologates.

I may, of course, hear from some seminary quarters itemizing a few of the negative results of that previous study. I would welcome such input and would want to assure the sources in advance of complete confidentiality.

I experienced a change-of-mind about the study of women religious in the United States, however, when I learned earlier this year that the Vatican's Congregation for the Doctrine of the Faith has initiated a doctrinal investigation of the Leadership of Conference of Women Reli-gious, referred to as the LCWR, the largest of its kind in North America.

In light of previous statements made about religious life by the cardinal-prefect of the Vatican congregation, Cardinal Franc Rodé, one has reason to wonder how objective and dispassionate the visitation of religious communities of women in the United States will be.

[Read the rest of Fr. McBrien's weekly column, here.]

Pope Benedict on "following the prevailing winds"

By Rick Garnett

From the American Papist blog, a recent statement -- made in the context of the Year of St. Paul -- by Pope Benedict (emphasis not mine):

"Paul wants the Christian faith have a 'responsible', an 'adult faith," said the Holy Father. "The word 'adult faith' has in recent decades become a popular slogan. It is often used to refer to the attitude of those who no longer adhere to the Church and her pastors, but choose for themselves what they want to believe and not believe - a kind of do-it-yourself faith."

Benedict XVI continued: "Speaking against the Magisterium of the Church is presented as courageous. In reality, however, it does not take courage for this, since you can always be sure of audience applause."

"Rather it takes courage to adhere to the faith of the Church, even if it contradicts the 'scheme' of the contemporary world," said the Pope. "It is this non-conformism of the faith that Paul calls an 'adult faith.'"

The Holy Father gave two examples of an 'adult faith'. First, "to commit to the inviolability of human life from the very beginning, thus radically opposing the principle of violence, in defense of the most defenseless humans." And second, "to recognize marriage between a man and a woman for life as a law of the Creator, restored again by Christ."

For Paul, said Benedict XVI, "following the prevailing winds and currents of the day is childish." (LSN)

Does this statement, I wonder, tell us anything about the content of the soon-to-be-released encyclical?  I've heard speculation, in some quarters, that the encyclical will be a tough critique of the modern economy; others seem to expect an elaboration of the "dictatorship of relativism" theme.  We'll see.  One thing is for sure, though:  The New York Times will use some of the following words in its coverage:  dictate, edict, dogma, conservative, hard-line, enforcer; any tension between the Pope's critique and "conservative" Catholics in America will be highlighted, as will any consonance between that critique and the positions of the Obama Administration.  Challenges to market-economics will be foregrounded in the coverage; challenges to an individualistic culture and morality will be skated over.  In fact, I imagine we could come up with a "Mad Libs"-style template for most press accounts!  The "Get Religion" blog, I expect, will be must-reading in the days to come.

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