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.

Monday, April 4, 2005

THE POPE OF HUMAN RIGHTS

In this morning's New York Times, Helen Prejean has a piece about John Paul II's position on capital punishment.  For an extended defense of the Prejean interpretation of the Pope's position, see E. Christian Brugger, Capital Punishment and the Roman Catholic Moral Tradition (Notre Dame 2003).  As Brugger points out, however, the Pope's position is more radical than the Church's "official" position, in spite of what Sister Prejean says.  To read Sister Prejean's entire piece ("Above All Else, Life"), click here.  An excerpt follows:

Of the many great legacies of Pope John Paul II, the one I prize the most is this:  He was instrumental in helping the Catholic Church reach a position of principled opposition to the death penalty - an opposition that brooks no exceptions. . . .   [I]n 1999[,] when the pope visited St. Louis, he uttered words of opposition to the death penalty that could not have been more uncompromising: 

"A sign of hope is the increasing recognition that the dignity of human life must never be taken away, even in the case of someone who has done great evil."

For this statement, and for his leadership, I am forever grateful. Thank you, Pope John Paul. Because of you, the Catholic Church can at last stand alongside those human rights groups that oppose, unequivocally, government killing.

Thursday, March 31, 2005

The Teaching Authority of the Magisterium

In his post below (per Greg Sisk), Bob Kennedy refers to the criteria specified in Lumen Gentium 25.  I thought that MOJ readers would like to see the criteria.  A crucial question:  How determinate are the criteria--in particular, with respect to moral teachings?  Another crucial question:  What moral teachings now in serious dispute among faithful Catholics--including faithful Catholic theologians--satisfy these criteria?  In any event, here is  Lumen Gentium 25:

25. Among the more important duties of bishops that of preaching the Gospel has pride of place.[39] For the bishops are heralds of the faith, who draw new disciples to Christ; they are authentic teachers, that is, teachers endowed with the authority of Christ, who preach the faith to the people assigned to them, the faith which is destined to inform their thinking and direct their conduct; and under the light of the Holy Spirit they make that faith shine forth, drawing from the storehouse of revelation new things and old (cf. Mt. 13:52); they make it bear fruit and with watchfulness they ward off whatever errors threaten their flock (cf. 2 Tim. 4-14). Bishops who teach in communion with the Roman Pontiff are to be revered by all as witnesses of divine and Catholic truth; the faithful, for their part, are obliged to submit to their bishops' decision, made in the name of Christ, in matters of faith and morals, and to adhere to it with a ready and respectful allegiance of mind. This loyal submission of the will and intellect must be given, in a special way, to the authentic teaching authority of the Roman Pontiff, even when he does not speak ex cathedra in such wise, indeed, that his supreme teaching authority be acknowledged with respect, and sincere assent be given to decisions made by him, conformably with his manifest mind and intention, which is made known principally either by the character of the documents in question, or by the frequency with which a certain doctrine is proposed, or by the manner in which the doctrine is formulated.

Although the bishops, taken individually, do not enjoy the privilege of infallibility, they do, however, proclaim infallibly the doctrine of Christ on the following conditions: namely, when, even though dispersed throughout the world but preserving for all that amongst themselves and with Peter's successor the bond of communion, in their authoritative teaching concerning matters of faith and morals, they are in agreement that a particular teaching is to be held definitively and absolutely.[40] This is still more clearly the case when, assembled in an ecumenical council, they are, for the universal Church, teachers of and judges in matters of faith and morals, whose decisions must be adhered to with the loyal and obedient assent of faith.[41]

This infallibility, however, with which the divine redeemer wished to endow his Church in defining doctrine pertaining to faith and morals, is co-extensive with the deposit of revelation, which must be religiously guarded and loyally and courageously expounded. The Roman Pontiff, head of the college of bishops, enjoys this infallibility in virtue of his office, when, as supreme pastor and teacher of all the faithful--who confirms his brethren in the faith (cf. Lk. 22:32)--he proclaims in an absolute decision a doctrine pertaining to faith or morals.[42] For that reason his definitions are rightly said to be irreformable by their very nature and not by reason of the assent of the Church, is as much as they were made with the assistance of the Holy Spirit promised to him in the person of blessed Peter himself; and as a consequence they are in no way in need of the approval of others, and do not admit of appeal to any other tribunal. For in such a case the Roman Pontiff does not utter a pronouncement as a private person, but rather does he expound and defend the teaching of the Catholic faith as the supreme teacher of the universal Church, in whom the Church's charism of infallibility is present in a singular way.[43] The infallibility promised to the Church is also present in the body of bishops when, together with Peter's successor, they exercise the supreme teaching office. Now, the assent of the Church can never be lacking to such definitions on account of the same Holy Spirit's influence, through which Christ's whole flock is maintained in the unity of the faith and makes progress in it.[44]

Furthermore, when the Roman Pontiff, or the body of bishops together with him, define a doctrine, they make the definition in conformity with revelation itself, to which all are bound to adhere and to which they are obliged to submit; and this revelation is transmitted integrally either in written form or in oral tradition through the legitimate succession of bishops and above all through the watchful concern of the Roman Pontiff himself- and through the light of the Spirit of truth it is scrupulously preserved in the Church and unerringly explained.[45] The Roman Pontiff and the bishops, by reason of their office and the seriousness of the matter, apply themselves with zeal to the work of inquiring by every suitable means into this revelation and of giving apt expression to its contents;[46] they do not, however, admit any new public revelation as pertaining to the divine deposit of faith.[47]

More on the Death Penalty and Deterrence

[Here is a post by Doug Berman of Oio State, from his blog Sentencing Law and Policy (click here):]

March 24, 2005

Concerns about (and blogsphere buzz on) DP paper

The Sunstein and Vermeule article that I posted here last night, which contends that capital punishment may be morally obligatory if it saves lives through its deterrent effect, is already generating blogsphere buzz.  In addition to Eugene Volokh's initial post here, there are now thoughtful discussions of the paper at Crooked Timber here (with lots of comments) and at Crescat Senentia here and at Mirror of Justice here and here. Because, as I noted before, this topic intrigues me greatly, I wish to weigh in by highlighting two concerns I have about the paper, one empirical and one normative:

1.  An empirical concern: are the data sound?  As Karl Keyes notes in this comment and as others in the blogsphere spotlight, Sunstein and Vermeule rely heavily on data which are shaky at best.  The authors concede that their arguments depend entirely on evidence that capital punishment deters, and that evidence is hardly conclusive.  (Next month at Ohio State, as detailed here, Columbia Prof Jeff Fagan is scheduled to give the annual Reckless Lecture on this topic, and his telling title is "Science and the Illusion of Deterrence in the Death Penalty: Cold Fusion All Over Again.")

2.  A normative concern: doesn't the argument prove too much?  Sunstein and Vermeule are focused on murders in their discussion of "a life-life tradeoff," but their claims would seem readily extended to other kinds of killings.  In my class discussions and in my own thinking, I find the deterrence arguments especially challenging when we consider drunk driving fatalities.  Statistics show over 17,000 alcohol-related driving fatalities each year (data here), and I have to think we could significantly reduce that number by executing just a few drunk drivers.  (Drunk driving seems like a much more deterrable crime than some other killings, and recent history suggests laws and public awareness can have a significant impact on alcohol-related driving fatalities.)  Are Sunstein and Vermeule prepared to argue that execution of drunk drivers is morally obligatory (at least in states like California, Florida, and Texas that have a high number of alcohol-related driving fatalities)?

In short, I ultimately found the Sunstein and Vermeule paper unsatisfying because they duck what I consider to be the really hard questions.

Wednesday, March 30, 2005

A MOJ Reader Responds to Danforth

[I received these comments from a MOJ reader--and thought other MOJ readers would be interested in them.  -mp]

I followed your link to Senator/Ambassador Danforth's piece. While interesting I would also argue that it is at times intellectually incoherent.
 
He writes:  "It is not evident to many of us that cells in a petri dish are equivalent to identifiable people suffering from terrible diseases. I am and have always been pro-life. But the only explanation for legislators comparing cells in a petri dish to babies in the womb is the extension of religious doctrine into statutory law."
 
I wonder how Senator Danforth understood his work on the behalf of the unborn and against abortion.  Why was this not an "extension of religious doctrine into statutory law"?  And if it was not that, what was it?  What makes working against embryonic stem-cell research religious but working against abortion non-religious?  I, for one, think advocating against abortion and the intentional destruction of embryos (in petri dishes, test tubes, or where ever they may be) is of one piece and that piece is not a religious one.  That is the arguments against both abortion and embryonic stem-cell research are grounded in secular, rational reasons.  Put another way, reason demands that we refrain from abortion and from embryonic stem-cell research.
 
Now I will grant two things.  First, many people of good will don't see the argument against embryonic stem-cell research.  Second, many, nay most, of those arguing against such research are religious. Yet it does not follow from this that 1) the argument against such research is wrong and 2) that the reasons for prohibiting such research are religious.
 
There are other problems with the op-ed but I do think he misapprehends the arguments against embryonic stem-cell research and does so in a way that would call into question the justification for his own work against abortion.

Religion and Politics ... Politics and Religion

John C. Danforth, a former U.S. senator from Missouri and an Episcopal minister (who resigned in January as U.S. ambassador to the United Nations), makes some interesting comments about the Republican Party in an op-ed in this morning's New York Times.   To read the piece, click here.

Michael P.

Tuesday, March 29, 2005

The Fallibility of Judgment

In his post below, Richard Myers says that "it is useful to begin discussions about the appropriate stance towards clear, authoritatively expressed teachings of this sort with a healthy dose of humility about the fallibility of our own [moral] judgment."  Yes, no doubt.  But also with a healthy dose of realism about the fallibility of the magisterium's moral judgment.

The two types of authority that concern us here (authority to govern and authority to teach) are, of course, distinct and can be discussed separately.  In the Roman Catholic Church, however, we find that they are often intermingled, and sometimes even confused with each other.  Over the centuries governing power has often been used (and misused) to bolster teaching authority.  Such an approach can easily amount to little more than "we are right because we are in charge" or "we give orders, not explanations."   --Bernard Hoose, "Authority in the Church," 63 Theological Studies 107 (2002).

Some Catholics concede that the church admits of the principle of doctrinal development, but they accuse [John] Noonan, in Richard John Neuhaus's words, of too often equating development with "a change, even a reversal, of doctrine."  At a recent meeting of the Catholic Common Ground initiative, Noonan and theologian Avery Dulles had a polite, but sharp, exchange on the subject, with Noonan again insisting that "the record is replete with mistakes--the faithful just can't accept everything that comes from Rome as though God had authorized it."  --John T. McGreevy, "A Case of Doctrinal Development:  John T. Noonan -- Jurist, Historian, Author, Sage," Commonweal, Nov. 12, 2000, at 12, 17.

Senator Rick Santorum on Religion in Politics

Sen. Rick Santorum: "I Draw No Line Between My Faith and My Decisions" - Christianity Today Magazine
http://www.christianitytoday.com/ct/2005/113/12.0.html

Monday, March 28, 2005

Martin Marty on Terri Schiavo (and Countless, Unnamed Others)


Sightings

Peace for Terri Schiavo
-- Martin E. Marty

Today down the street at a hospice or in your neighborhood hospital, one of many thousands of Americans is in a coma, or is "brain dead," or in a "persistent vegetative state," or any of a score of variations on the above.  Unless the person is your patient, your relative, your friend, or your fellow congregant who is regularly being prayed for, you've never heard of this person, and never will.

In the language of the Christian majority, however, "his name is written in the book of life," so no one needs to absolutize or idolize utterly reduced "lives."  More than half of them are under the care of priests, ministers, rabbis, chaplains, trained and certified deacons, and lay care-givers -- all of them pastors.

Who is a pastor, what does he or she do, and what does it mean to be under pastoral care?  The pastor is trained in medical ethics, consults experts, and has thought through the theological implications of what is going on, since such circumstances are constants in the pastoral world.  The pastor really, really cares about life, each life under pastoral care, valuing the life to come and the life that is.  The pastor no doubt knew the "brain-dead" patient when he was hearty.  She knows the one who is now in a "persistent vegetative state" back in good days and bad.  Dealing with persons in comas is part of the regular rounds for pastors.

Though not a parish pastor since 1963, I still get to do pastoral acts, thanks to such conveniences as autos and jets, plus snail-mail, e-mail, and telephones that make possible "virtual pastoral calls."  Even at the margins, I will get calls that say: "Marty, your friend XX is slipping away.  You agreed to phone a final prayer.  We are going to let her sleep tomorrow."  That is not "physician-assisted suicide."  It is natural and godly.  Or: "XX can't hear you anymore; she's really gone, except for the tubes.  You and she agreed you'd talk to the family as we look ahead."

Oh, yes, the family.  Pastoral care regards the patient in context, and knows that the family will outlive the dying member.  Over a period of time a pastor, a chaplaincy-circuit, a congregation will study the issues and make personal decisions with which families have to live.  The pastor will do all he or she can to help a family find courage to make the right decision, the freedom from guilt that goes with any choices -- all of them always bad -- and then to help them look ahead to the life that is really life.  The family can blend back into society and know that they also will be cared for spiritually in tough times.

It's too bad that because good pastoral activity is personal and private, most citizens do not know about it, or for good enough reasons of their own do not avail themselves of it.  Really too bad is when, whatever wonderful pastoral care may go on behind the curtains, the patient becomes a "case," an "object," a "thing" to be fought over, exposed to public view, used for a variety of political and religious and other causes.  Really, really too bad is when the family and their supporters are tempted and expected to spend their subsequent years in frustration and fury, wreaking vengeance (on whom?), nursing resentment, seeking more power, dividing and distracting the citizenry.

With sympathy for her family, both sides of it, most of us will turn when the time comes and say: Terri Schiavo, rest in peace and let the people say, Amen.

----------

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

Response to Rob Vischer ...

... and to other interested readers of this blog.  For Rob's query about a faithful Catholic's proper relationship to the teaching authority of the magisterium, click here.  Two excellent places to begin for those interested in pursuing this issue:

1.  Judge John T. Noonan Jr.'s new book, A Church That Can and Cannot Change:  The Development of Catholic Moral Teaching (2005).  Click here.

2.  Francis A. Sullivan, Creative Fidelity:  Weighing and Interpreting Documents of the Magisterium (2003).  Click here.

(Thanks to Cathy Kaveny for recommending these books.)

I touched upon the issue in chapter 5 of my book Under God?  Religious Faith and Liberal Democracy (2003).   Chapter 5 is titled Catholics, the Magisterium, and Same-Sex Unions:  An Argument for Independent Judgment.  Click here.

Stem Cell Research Revisited

A while back, I indicated on this blog that I was sympathetic to the position of Gene Outka, a Christian ethicist at Yale, on stem cell research.  (For my earlier posting, and a quotation of Outka's position, click here.)  A bill that affirms Outka's position--a bill proposed by some Republicans--will be considered in Congress.  This report is from the this morning's online Chronicle of Higher Education:

U.S. House to Vote on a Bill That Would Loosen Bush's Restrictions on Embryonic-Stem-Cell Research

By KELLY FIELD

Washington

Republican leaders in the U.S. House of Representatives have agreed to allow a vote on legislation that would liberalize President Bush's policy on stem-cell research, the bill's chief sponsor confirmed on Friday.

The vote is expected to occur in a few months. The legislation, if enacted, would allow researchers to use federal funds to study stem cells derived from embryos that were donated by fertility-clinic patients. The bill would not allow the use of federal funds for research on stem cells from embryos created through cloning.

Rep. Michael N. Castle, the Delaware Republican who originally introduced the Stem Cell Research Enhancement Act (HR 810) in 2004, said on Friday that he was "pleasantly surprised" that House leaders had approved his request for a vote. "I didn't necessarily expect this to happen," he said.

The Republican leaders, including the House speaker, J. Dennis Hastert of Illinois, are known for their strong opposition to abortion, an issue to which stem-cell research has been tied. Opponents of the research say that embryos are human lives and that destroying them to obtain the stem cells is tantamount to murder.

While the House leaders could still alter Mr. Castle's bill, or replace it on the legislative calendar with another stem-cell measure, their agreement on a vote marks a shift within the Republican Party, which only last August adopted a platform endorsing the existing restrictions on federal support for the research. Under the current policy, federal funds can be used only for research on colonies, or lines, of embryonic stem cells that existed in August 2001, when Mr. Bush announced the policy.

[To read the whole report, click here.]