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.

Friday, December 15, 2006

Eduardo Penalver on Natural Law and the Constitution

To download/print, click here.

Restoring the Right Constitution?
EDUARDO M. PENALVER
Cornell Law School
Cornell Legal Studies Research Paper No. 06-048
Yale Law Journal, Vol. 116, 2007

Abstract:    
After years of relative neglect, the past few decades have witnessed a dramatic renewal of interest in the natural law tradition within philosophical circles. This natural law renaissance, however, has yet to bear much fruit within American constitutional discourse, especially among commentators on the left. In light of its low profile within contemporary constitutional debates, an effort to formulate a natural law constitutionalism is almost by definition an event worthy of sustained attention. In Restoring the Lost Constitution, Randy Barnett draws heavily upon a natural law theory of constitutional legitimacy to argue in favor of a radically libertarian reading of the Constitution. Barnett's important book, and the substantial commentary it has generated, may well help to generate interest in natural law constitutionalism. Unfortunately, his libertarian emphasis on unfettered rights of property and contract is likely to reinforce the notion that natural law theorizing is an activity best left to those on the rightmost end of the political spectrum. It would be a mistake, however, to understand Barnett's libertarian version of natural law constitutional theory as exhausting the possibilities of the tradition. Although Barnett's theory of constitutional legitimacy is infused with language drawn from the broader natural law framework, his "natural rights" theory, as he calls it, actually departs in significant ways from the classical natural law tradition. Moreover, there are substantial reasons to favor a version of natural law with implications for state power that are far more progressive than Barnett's. Nor does Barnett establish, as he attempts to do, that the Constitution itself somehow locks us into a commitment to his libertarian, natural rights version of natural law theory. Indeed, without changing much in Barnett's account, it is possible to convert his theory from one that supports the conservative goal of limiting the power of government, restricting it to the narrow task of facilitating or preserving property and contract rights, into one that justifies a far more progressive view.

       
 

The 'greening' of institutional Christianity

By John L Allen Jr
Dec 15 2006 - 07:57   
          
All Things Catholic by John L. Allen, Jr.
  Friday, Dec. 15, 2006 - Vol. 6, No. 15 

When Pope Benedict XVI and Patriarch Bartholomew I of Constantinople met recently, the encounter was spun in a variety of ways: As an effort to reunite Eastern and Western Christianity; As an attempt to forge a united Christian front vis-à-vis Islam; Eeven as a bid to pool resources to combat runaway secularism in Europe.

What the meeting was not generally seen as -- though it easily could have been -- was an encounter between two outspoken environmentalists, struggling to stir the conscience of the world about a mounting ecological crisis.

While environmentalism has long been a cause more associated with the secular left, the increasingly intense engagement of both the patriarch and the pope, who cannot by any stretch of the imagination be seen as avant garde figures, suggests a broad "greening" of institutional Christianity.

[The whole piece by John Allen is well worth reading.  To do so, click here.]

Thursday, December 14, 2006

TOWARD A THEORY OF HUMAN RIGHTS

My new book has just been published by Cambridge University Press.  The title:  Toward a Theory of Human Rights:  Religion, Law, Courts.  The table of contents, introduction, and conclusion are available for download at SSRN (here).  This is the abstract I posted on SSRN:

Abstract:

Jurgen Habermas has remarked that “notwithstanding their European origins, . . . in Asia, Africa, and South America, [human rights now] constitute the only language in which the opponents and victims of murderous regimes and civil wars can raise their voices against violence, repression, and persecution, against injuries to their human dignity.” Nonetheless--and as philosopher John Searle recently wrote--“we [do not] have a clear theory of human rights. On the contrary, . . . the necessary work is just beginning.” My new book, Toward a Theory of Human Rights (Cambridge University Press), is an effort to contribute to that “necessary work”.

I pursue three inquiries in the book:

1. What is the morality of human rights — and can a secular worldview ground (embed, make sense of) that morality?

2. What is the relationship of the morality of human rights to the law of human rights? In addressing that question, I focus on three controversial issues: capital punishment, abortion, and same-sex unions.

3. What is the proper role of courts in protecting, and therefore in interpreting, the law of human rights--in particular, constitutionally entrenched human rights law? I give special attention to the Supreme Court of the United States.

For a fuller overview of the questions I address in the book, interested readers can download (below) the book's table of contents, introduction, and conclusion.

HARVARD REJECTS "REASON AND FAITH"

Chronicle of Higher Education
Thursday, December 14, 2006

Harvard Drops Religion Requirement From Proposed New Curriculum

By THOMAS BARTLETT

It looks as if Harvard University students won't have to take a religion course after all.

In October, a university committee called the Task Force on General Education released a proposal to overhaul Harvard's core curriculum. The most-talked-about change would require students to take a course in a category dubbed "Reason and Faith." At the time, Louis Menand, a co-chair of the committee, said the requirement would help students understand "rapid change and conflicts between reason and faith."

But in a letter about proposed curriculum changes that the committee sent to faculty members at Harvard this month, that category was dropped. The letter, which has not been made public, says the category is not needed because religion-related classes will be offered in other areas of the curriculum.

Views like those expressed in an essay by Steven Pinker, a Harvard professor who opposed the Reason and Faith requirement, may have played a role in derailing the requirement.

In his essay, published in The Harvard Crimson and adopted from comments he shared with the committee, Mr. Pinker, a professor of psychology, wrote that the requirement gave religion "far too much prominence."

In an e-mail message on Wednesday, Mr. Pinker called dropping Reason and Faith "an excellent change."

The committee has suggested that a new category, called "What It Means to Be a Human Being," replace Reason and Faith.

Neither Mr. Menand nor his co-chair, Alison Simmons, a professor of philosophy, could be reached for comment on Wednesday.

Final recommendations from the committee are expected to be released in January.

Tuesday, December 12, 2006

Barack Obama Announces His Run for the Presidency!

Against the background of two earlier posts,

Who Is Barack Obama?  And Does He Believe in God? (here), and

Barack Obama and Religion, con't (here),

I thought that Rick Garnett and other MOJ-readers would like to know that last night, on national television, right before the Monday night football game in which the 2007 Super Bowl Champion Chicago Bears extended their season record to an NFL-leading 11-2 [okay, okay, San Diego has an 11-2 record too, but who even knows that San Diego has a football team?], Barack Obama--whose home town is the great city of Chicago, where citizens are urged to "vote early and often"--announced his run for the presidency.  Somehow today's newspapers missed the story [I suspect Rick Garnett had something to do with that].  But now, right here on MOJ, you can see the announcement for yourself:

My Reply to the Anonymous Reply

Here is my original post and here is the anonymous reply.  Here, now, my reply:

When I said that it was dismissive to refer to homosexual sexual intimacy with the word "sodomy"--or "anal intercourse", or whatever term my anonymous replier prefers--I meant that it was dimissive in the same sense it would be dismissive to refer to my wife's and my sexual intimacy with the term "vaginal intercourse".  Maybe "reductionist" would have been better--clearer--than "dismissive".

May I recommend, again, that interested readers take the time to purchase/read Sister Margaret Farley's new book, Just Love:   A Framework for Christian Sexual Ethics (2006).

Book Description
This long-awaited book by one of American Christianity’s foremost ethicists proposes a framework for sexual ethics whereby justice is the criterion for all loving, including love that is related to sexual activity and relationships. It begins with historical and cross-cultural explorations, and then addresses the large questions of embodiment, gender, and sexuality. Following this is a normative chapter that delineates the justice framework for sexual ethics. Though the particular focus is Christian sexual ethics, the framework is broad enough to have relevance for multiple traditions of sexual ethics. The remaining chapters focus on specific issues in sexual ethics, including same-sex relationships, marriage and family, divorce and second marriage, celibacy, and sex and its negativities.      

About the Author
Margaret A. Farley holds the Gilbert L. Stark Chair in Christian Ethics at Yale University Divinity School, where she has taught since 1971. She is a past president of the Society of Christian Ethics and the Catholic Theological Society of America as well as being a recipient of the latter’s John Courtney Murray Award for Excellence in Theology. She was a founding member of the Bioethics Committee at Yale-New Haven Hospital; director of the Yale Divinity School Project on Gender, Faith, and Responses to HIV/AIDS in Africa; and codirector of the All Africa Conference: Sister to Sister, which facilitates responses to HIV/AIDS on the part of Roman Catholic women in Africa. She is the author of Personal Commitments and Compassionate Respect, the Madaleva Lecture for 2002.

GAY AND EVANGELICAL

New York Times
December 12, 2006

Gay and Evangelical, Seeking Paths of Acceptance
By NEELA BANERJEE

RALEIGH, N.C. — Justin Lee believes that the Virgin birth was real, that there is a heaven and a hell, that salvation comes through Christ alone and that he, the 29-year-old son of Southern Baptists, is an evangelical Christian.

Just as he is certain about the tenets of his faith, Mr. Lee also knows he is gay, that he did not choose it and cannot change it.

To many people, Mr. Lee is a walking contradiction, and most evangelicals and gay people alike consider Christians like him horribly deluded about their faith. “I’ve gotten hate mail from both sides,” said Mr. Lee, who runs gaychristian.net, a Web site with 4,700 registered users that mostly attracts gay evangelicals.
. . .

[O]ver the last 30 years, ... gay evangelicals have ... created organizations where they are accepted.

Members of Evangelicals Concerned, founded in 1975 by a therapist from New York, Ralph Blair, worship in cities including Denver, New York and Seattle. Web sites have emerged, like Christianlesbians.com and Mr. Lee’s gaychristian.net, whose members include gay people struggling with coming out, those who lead celibate lives and those in relationships.

Justin Cannon, 22, a seminarian who grew up in a conservative Episcopal parish in Michigan, started two Web sites, including an Internet dating site for gay Christians.

“About 90 percent of the profiles say ‘Looking for someone with whom I can share my faith and that it would be a central part of our relationship,’ ” Mr. Cannon said, “so not just a life partner but someone with whom they can connect spiritually.”

But for most evangelicals, gay men and lesbians cannot truly be considered Christian, let alone evangelical.

“If by gay evangelical is meant someone who claims both to abide by the authority of Scripture and to engage in a self-affirming manner in homosexual unions, then the concept gay evangelical is a contradiction,” Robert A. J. Gagnon, associate professor of New Testament at Pittsburgh Theological Seminary, said in an e-mail message.

“Scripture clearly, pervasively, strongly, absolutely and counterculturally opposes all homosexual practice,” Dr. Gagnon said. “I trust that gay evangelicals would argue otherwise, but Christian proponents of homosexual practice have not made their case from Scripture.”

In fact, both sides look to Scripture. The debate is largely over seven passages in the Bible about same-sex couplings. Mr. Gagnon and other traditionalists say those passages unequivocally condemn same-sex couplings.

Those who advocate acceptance of gay people assert that the passages have to do with acts in the context of idolatry, prostitution or violence. The Bible, they argue, says nothing about homosexuality as it is largely understood today as an enduring orientation, or about committed long-term, same-sex relationships.

For some gay evangelicals, their faith in God helped them override the biblical restrictions people preached to them. One lesbian who attends Pullen Memorial Baptist Church in Raleigh said she grew up in a devout Southern Baptist family and still has what she calls the “faith of a child.” When she figured out at 13 that she was gay, she believed there must have been something wrong with the Bible for condemning her.

“I always knew my own heart: that I loved the Lord, I loved Jesus, loved the church and felt the Spirit move through me when we sang,” said the woman, who declined to be identified to protect her partner’s privacy. “I felt that if God created me, how is that wrong?”

But most evangelicals struggle profoundly with reconciling their faith and homosexuality, and they write to people like Mr. Lee.

There is the 65-year-old minister who is a married father and gay. There are the teenagers considering suicide because they have been taught that gay people are an abomination. There are those who have tried the evangelical “ex-gay” therapies and never became straight.

Mr. Lee said he and his family, who live in Raleigh, have been through almost all of it. His faith was central to his life from an early age, he said. He got the nickname Godboy in high school. But because of his attraction to other boys, he wept at night and begged God to change him. He was certain God would, but when that did not happen, he said, it called everything into question.

He knew no one who was gay who could help, and he could not turn to his church. So for a year, Mr. Lee went to the library almost every day with a notebook and the bright blue leather-bound Bible his parents had given him. He set up his Web site to tell his friends what he was learning through his readings, but e-mail rolled in from strangers, because, he says, other gay evangelicals came to understand they were not alone.

“I told them I don’t have the answers,” Mr. Lee said, “but we can pray together and see where God takes us.”

But even when they accept themselves, gay evangelicals often have difficulty finding a community. They are too Christian for many gay people, with the evangelical rock they listen to and their talk of loving God. Mr. Lee plans to remain sexually abstinent until he is in a long-term, religiously blessed relationship, which would make him a curiosity in straight and gay circles alike.

Gay evangelicals seldom find churches that fit. Congregations and denominations that are open to gay people are often too liberal theologically for evangelicals. Yet those congregations whose preaching is familiar do not welcome gay members, those evangelicals said.

Clyde Zuber, 49, and Martin Fowler, 55, remember sitting on the curb outside Lakeview Baptist Church in Grand Prairie, Tex., almost 20 years ago, Sunday after Sunday, reading the Bible together, after the pastor told them they were not welcome inside. The men met at a Dallas church and have been together 23 years. In Durham, N.C., they attend an Episcopal church and hold a Bible study for gay evangelicals every Friday night at their home.

“Our faith is the basis of our lives,” said Mr. Fowler, a soft-spoken professor of philosophy. “It means that Jesus is the Lord of our household, that we resolve differences peacefully and through love.”

Their lives seem a testament to all that is changing and all that holds fast among evangelicals. Their parents came to their commitment ceremony 20 years ago, their decision ultimately an act of loyalty to their sons, Mr. Zuber said.

But Mr. Zuber’s sister and brother-in-law in Virginia remain convinced that the couple is sinning. “They’re worried we’re going to hell,” Mr. Zuber said. “They say, ‘We love you, but we’re concerned.’ ”

 

Monday, December 11, 2006

AGAINST COERCION

Sightings  12/11/06

Against Coercion
-- Martin E. Marty

Two events this season led me to go back to the Sightings archive, to a column dated October 29, 2001 ("Listening to Lactantius").  Giving evidence of our passion always to be current, we cited Lactantius from the years 302 and 303, because what he wrote then spoke so directly to current affairs.  Incident one here is the flap over new Congressman Keith Ellison of Minnesota, who brought the Qur'an along when he took the oath of office.  Some howled that this was outrageous in this Christian country.  While the use of the Bible at oath-taking time has always been voluntary, never coerced, using any other book, it was said, blasphemes against the God of America and demeans the tradition of godly Americans.

Incident two won't end until December 26, when partisans will begin to gear up for next year's "December Wars," when devotion to Christian Christmas gets upstaged by verbal war-makers.  One side wants Jesus-Christmas to be privileged and officially sanctioned in the "public square."  The other wants a Jesus-free public square.  While tempted to wish a plague on both their houses, I choose to tilt, by reference to Lactantius, for a theological angle and one side.

The public can fight over whether there is or is not enough Jesus-Christmas in the department stores, the malls, the corridors.  A half hour in such places should move one to pity the clerks who have usually sappy versions of Jesus-Christmas songs bombarding their ears all day, depriving them and their customers of any chance to experience awe and wonder.  Some in the public, and many in the opinion-world, however, want Jesus-Christmas to be privileged in the official public space and in the times that belong to the whole public.  If we do not "coerce" the Jesus-presence, it is asked, how can American tradition survive?  Is not all this a shunning of God?

Enter Lactantius, anticipator of James Madison, 1,400 years in the offing.  Both of them, wrote Robert Louis Wilken, had a "religious understanding of religious freedom."  Wilken also quoted the Vatican II bishops who preached "that the response of people to God in faith should be voluntary ....  In matters of religion every manner of coercion on the part of men should be excluded."  And then Lactantius -- the "first Western thinker to adumbrate a theory of religious freedom rooted not in notions about toleration but in the nature of religious belief."

Those who wanted Congressman Ellison to be a hypocrite, or to deprive him of his scripture, usually profess to seek sincerity in religion and attachment to sacred books, even if his was the "wrong one."  It's not mine.  And coercing people to be obeisant to a god in whom they do not believe would, in Lactantius's terms, be "inimical to the nature of religion."  The man of 302-303 asked, "Why should a god love a person who does not feel love in return?"  Scholar Elizabeth DePalma Digeser cites Lactantius: "Those who strive to defend religion with force make a deity appear weak."  And anyone who lacks the requisite inner conviction is "useless to God."

Those who have confidence in a "strong God," one who loves to be loved freely and not by coercion, no matter how light and how slight the weight of its force, will let Mr. Ellison vow as he chooses and will not impose Jesus on others.

References:
Elizabeth DePalma Digeser, The Making of a Christian Empire: Lactantius and Rome (Cornell, 2000); Robert Louis Wilken, "In Defense of Constantine," First Things (April 2001), http://www.leaderu.com/ftissues/ft0104/articles/wilken.html.

----------

Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.

Sunday, December 10, 2006

Globalization and Catholic--or Is It Bangladeshi?--Social Thought

New York Times
December 10, 2006

Nobel Winner Warns of Dangers of Globalization
By WALTER GIBBS

OSLO, Dec. 10 — The Bangladeshi banker Muhammad Yunus, who invented the practice of making small, unsecured loans to the poor, warned today that the globalized economy was becoming a dangerous “free-for-all highway.”

“Its lanes will be taken over by the giant trucks from powerful economies,” Dr. Yunus said during a lavish ceremony at which he was awarded the 2006 Nobel Peace Prize. “Bangladeshi rickshaws will be thrown off the highway.”

While international companies motivated by profit may be crucial in addressing global poverty, he said, nations must also cultivate grassroots enterprises and the human impulse to do good.

Challenging economic theories that he learned as a Ph.D. student at Vanderbilt University, in Nashville in the 1970s, he said glorification of the entrepreneurial spirit has led to “one-dimensional human beings” motivated only by profit.

Dr. Yunus, 66, then took a direct jibe at the United States for its war on terror, telling about 1,000 dignitaries at Oslo’s City Hall that recent American military campaigns in Iraq and elsewhere had diverted global resources and attention from a more pressing project: halving worldwide poverty by 2015, as envisaged by the United Nations six years ago.

“Never in human history had such a bold goal been adopted by the entire world in one voice, one that specified time and size,” he said. “But then came Sept. 11 and the Iraq war, and suddenly the world became derailed from the pursuit of this dream.”

He said terrorism cannot be defeated militarily and the concept of peace requires broadening. “Peace should be understood in a human way, in a broad social, political and economic way,” Dr. Yunus said.

[To read the whole article, click here.]

The Mystery of Love

The Mystery of Love.  This PBS documentary, to be broadcast this Wednesday evening, looks to be well worth making time to watch.  Click here to read a piece about the documentary that was published in yesterday's New York Times.  Click here to go to the website for the show.