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, January 21, 2008

Living the Campus Life to the Fullest

The December issue of Traces also has an excellent interview with MOJ alum and Notre Dame law professor Paolo Carozza.  The December issue is not yet available on line, so I will give you just one snippet:

Carozza:  "To work here [Notre Dame] means to have the freedom to live a more intensely whole life:  to ask questions in my research that are not artificially constrained by the conventions of a completely secularized academy; to relate to and discuss with students in class and outside of it in ways that embrace all the experience of life; to be part of a community where the prayer and longing of our Liturgy and the prayer and longing of our studies are united."

What's Left of 1968

In an article entitled “What’s Left of 1968” in the December 2007 issue of Traces, Lorenzo Albacete writes:

“… Two happenings not on the typical list of 1968 events quietly revealed what was to come in the following years up to today and showed this year to be indeed the beginning of an ideological contest.

The first was the publication of Pope Paul VI’s encyclical Humanae Vitae, restating the Church’s traditional condemnation of artificial birth control.  In the atmosphere of progress that most Americans associated with change, the novelty introduced by the Second Vatican Council had convinced most American Catholics that the Church would accept the use of the contraceptive ‘pill’ being used by more and more American women as an instrument of liberation from a dependence on their bodies not suffered by men.  When the encyclical was published, the unity of the Church began to fall to pieces. … Although many dissenters from the Church’s teaching tried to convince others and themselves that this was an issue that dialogue could resolve, it became clear that what was at stake was much more than birth control.  Indeed, the struggle was about different ways of understanding freedom and the view of man which these different forms of considering freedom depended.  In this 1968 controversy, the true nature of what was happening [with the whole panoply of events that year] began to show its face.

The second event was the release of Stanley Kubric’s movie, 2001:  A Space Odyssey.  Although seen by many as a science-fiction film, it was really a stunning and majestic presentation of the story of human evolution from a purely secular, scientific, and technological expression, with progress understood precisely as the liberation of man from dependence on his body and the ultimate triumph of the mind.”

Sunday, January 20, 2008

Humanae Vitae at 40

     Michael P. reminds us that this year we observe the 40th anniversary of Paul VI’s encyclical Humanae Vitae.  This encyclical reaffirmed the Catholic Church’s teaching that the unitive and procreative elements of sexual intercourse between husband and wife can not be separated; therefore, artificial methods of controlling births are illicit. 

     It is my understanding that Protestants and Catholics were united in their opposition to artificial birth control until the Anglicans created an exception in the 1930’s for married couples who had very grave reasons for wanting to prevent pregnancy.  Within two or three generations, Protestants had largely forgotten that they ever had this in common with Catholics and many lay Catholics were ignoring their Church’s teaching.

     For me, the central questions are these:  Were the Protestant churches and many of the rank and file in the Catholic Church correct?  Did this new understanding (especially after the technological changes that gave us the pill) of human sexuality and relationships correspond more closely to our human nature than the old understanding?  Was the Magisterium of the Catholic Church merely behind the times, holding on to the past without any sound basis?  Or, had humanity forgotten things that should not have been forgotten?  Did the old teaching, which was preserved by the Magisterium of the Catholic Church, hold truths about the human person, human sexuality, and human relationships that should not have been discarded?

     As a late Baby-boomer (born 1960) growing up in a college town, I witnessed much of the upheaval of the late 1960’s and early 1970’s, I came of age in a time of great confusion in society and fluidity in the Church, and I got married at a young age in 1981.  In short, these questions were not theoretical for me but very real and concrete as I (we) struggled to understand and follow the Church’s teaching on contraception.

     I must admit that the understanding came very slowly.  Archbishop Chaput’s pastoral letter ten years ago on the 30th anniversary greatly helped.  A more complete understanding came only in the last few years, and here I have to credit my children who encouraged me to read Karol Wojtyla’s groundbreaking work Love and Responsibility and his later work (as John Paul the Great) Man and Woman He Created Them:  A Theology of the Body.  (As an aside, to those of you who mistakenly think that the Catholic Church is prudish in matters sexual, take a peek at the bottom of page 272 of Love and Responsibility).  What a great joy that it was my children who brought me to a fuller understanding of the Church’s beautiful teaching on marriage and human sexuality. 

     To conclude this post, I turn to Archbishop Chaput’s pastoral letter of a decade ago, On Human Life.  The beginning paragraphs are reproduced below:

“Dear brothers and sisters in the Lord,

1.  Thirty years ago this week, Pope Paul VI issued his encyclical letter Humanae Vitae (On Human Life), which reaffirmed the Church's constant teaching on the regulation of births.  It is certainly the most misunderstood papal intervention of this century.  It was the spark which led to three decades of doubt and dissent among many Catholics, especially in the developed countries.  With the passage of time, however, it has also proven prophetic.  It teaches the truth.  My purpose in this pastoral letter, therefore, is simple.  I believe the message of Humanae Vitae is not a burden but a joy.  I believe this encyclical offers a key to deeper, richer marriages.  And so what I seek from the family of our local Church is not just a respectful nod toward a document which critics dismiss as irrelevant, but an active and sustained effort to study Humanae Vitae; to teach it faithfully in our parishes; and to encourage our married couples to live it.
 
 

I.  THE WORLD SINCE 1968

2.  Sooner or later, every pastor counsels someone struggling with an addiction.  Usually the problem is alcohol or drugs.  And usually the scenario is the same.  The addict will acknowledge the problem but claim to be powerless against it.  Or, alternately, the addict will deny having any problem at all, even if the addiction is destroying his or her health and wrecking job and family.  No matter how much sense the pastor makes; no matter how true and persuasive his arguments; and no matter how life-threatening the situation, the addict simply cannot understand -- or cannot act on -- the counsel.  The addiction, like a thick pane of glass, divides the addict from anything or anyone that might help.

3.  One way to understand the history of Humanae Vitae is to examine the past three decades through this metaphor of addiction.  I believe the developed world finds this encyclical so hard to accept not because of any defect in Paul VI's reasoning, but because of the addictions and contradictions it has inflicted upon itself, exactly as the Holy Father warned.

4.  In presenting his encyclical, Paul VI cautioned against four main problems (HV 17) that would arise if Church teaching on the regulation of births was ignored.  First, he warned that the widespread use of contraception would lead to "conjugal infidelity and the general lowering of morality."  Exactly this has happened.  Few would deny that the rates of abortion, divorce, family breakdown, wife and child abuse, venereal disease and out of wedlock births have all massively increased since the mid-1960s.
 
Obviously, the birth control pill has not been the only factor in this unraveling.  But it has played a major role.  In fact, the cultural revolution since 1968, driven at least in part by transformed attitudes toward sex, would not have been possible or sustainable without easy access to reliable contraception.  In this, Paul VI was right.

5.  Second, he also warned that man would lose respect for woman and "no longer [care] for her physical and psychological equilibrium," to the point that he would consider her "as a mere instrument of selfish enjoyment, and no longer as his respected and beloved companion."  In other words, according to the Pope, contraception might be marketed as liberating for women, but the real "beneficiaries" of birth control pills and devices would be men.  Three decades later, exactly as Paul VI suggested, contraception has released males -- to a historically unprecedented degree -- from responsibility for their sexual aggression.  In the process, one of the stranger ironies of the contraception debate of the past generation has been this: Many feminists have attacked the Catholic Church for her alleged disregard of women, but the Church in Humanae Vitae identified and rejected sexual exploitation of women years before that message entered the cultural  mainstream.  Again, Paul VI was right.

6.  Third, the Holy Father also warned that widespread use of contraception would place a "dangerous weapon . . . in the hands of those public authorities who take no heed of moral exigencies."  As we have since discovered, eugenics didn't disappear with Nazi racial theories in 1945. Population control policies are now an accepted part of nearly every foreign aid discussion.  The massive export of contraceptives, abortion and sterilization by the developed world to developing countries -- frequently as a prerequisite for aid dollars and often in direct contradiction to local moral traditions -- is a thinly disguised form of population warfare and cultural re-engineering.  Again, Paul VI was right.

7.  Fourth, Pope Paul warned that contraception would mislead human beings into thinking they had unlimited dominion over their own bodies, relentlessly turning the human person into the object of his or her own intrusive power.  Herein lies another irony: In fleeing into the false freedom provided by contraception and abortion, an exaggerated feminism has actively colluded in women's dehumanization.  A man and a woman participate uniquely in the glory of God by their ability to co-create new life with Him.  At the heart of contraception, however, is the assumption that fertility is an infection which must be attacked and controlled, exactly as antibiotics attack bacteria.  In this attitude, one can also see the organic link between contraception and abortion.  If fertility can be misrepresented as an infection to be attacked, so too can new life. In either case, a defining element of woman's identity -- her potential for bearing new life -- is recast as a weakness requiring vigilant distrust and "treatment."  Woman becomes the object of the tools she relies on to ensure her own liberation and defense, while man takes no share of the burden.  Once again, Paul VI was right.

8.  From the Holy Father's final point, much more has flowed:  In vitro fertilization, cloning, genetic manipulation and embryo experimentation are all descendants of contraceptive technology.  In fact, we have drastically and naively underestimated the effects of technology not only on external society, but on our own interior human identity.  As author Neil Postman has observed, technological change is not additive but ecological.  A significant new technology does not "add" something to a society; it changes everything -- just as a drop of red dye does not remain discrete in a glass of water, but colors and changes every single molecule of the liquid.

Contraceptive technology, precisely because of its impact on sexual intimacy, has subverted our understanding of the purpose of sexuality, fertility and marriage itself. It has detached them from the natural, organic identity of the human person and disrupted the ecology of human relationships.  It has scrambled our vocabulary of love, just as pride scrambled the vocabulary of Babel.”

Change of Attitude Toward Abortion

Here is a excerpt of a piece by Steve Chapman in today's Chicago Tribune on the decline in abortions.

"Laws often alter attitudes, inducing people to accept things -- such as racial integration -- they once rejected. But sometimes, attitudes move in the opposite direction, as people see the consequences of the change. That's the case with abortion.

The news that the abortion rate has fallen to its lowest level in 30 years elicits various explanations, from increased use of contraceptives to lack of access to abortion clinics. But maybe the chief reason is that the great majority of Americans, even many who see themselves as pro-choice, are deeply uncomfortable with it.

In 1992, a Gallup/Newsweek poll found 34 percent of Americans thought abortion "should be legal under any circumstances," with 13 percent saying it should always be illegal. Last year, only 26 percent said it should always be allowed, with 18 percent saying it should never be permitted.

Sentiments are even more negative among the group that might place the highest value on being able to escape an unwanted pregnancy: young people. In 2003, Gallup found, one of every three kids from age 13 to 17 said abortion should be illegal in all circumstances. More revealing yet is that 72 percent said abortion is "morally wrong."

By now, pro-life groups know that outlawing most abortions is not a plausible aspiration. So they have adopted a two-pronged strategy. The first is to regulate it more closely -- with parental notification laws, informed consent requirements and a ban on partial-birth abortion. The second is to educate Americans with an eye toward changing "hearts and minds." In both, they have had considerable success.

Even those who insist Americans are solidly in favor of legal abortion implicitly acknowledge the widespread distaste. That's why the Democratic Party's 2004 platform omitted any mention of the issue, and why politicians who support abortion rights cloak them in euphemisms like 'the right to choose.'"

Thursday, January 17, 2008

More on Limbaugh and dependence

Michael P. are you also relishing the fact that probably for the first time in MOJ’s four year history another blogger can use our names interchangeably without the need for an identifying P or S?

Rick, your point is well taken, in context Limbaugh might be talking about a Dave Ramsey-type life strategy.  And, you are also right that “[i]t is not at all obvious that Limbaugh was trying to make anything like Glendon's sophisticated, anthropological point.”  Can the argument be made, however, that Limbaugh’s overall body of work contains elements of an implicit anthropology at odds with an authentic understanding of the human person? 

Over the years I have listened to Limbaugh’s show occasionally when driving in the car. My impression is that the line between healthy skepticism about government and a rugged individualistic rhetoric (a strain of radical autonomy) is often blurred.  I don’t know whether he is merely waging a political fight against the forces of big government unaware of the ambiguity in the rhetoric or if he implicitly or explicitly holds to an individualistic anthropology. 

What I do know (from personal conversations over the years) is that some of his listeners who describe themselves as “conservative” or members of the “religious right” confuse these concepts.  It is one thing to say “I earned this money, and I don’t want the government taking it from me through higher taxes because I think that I (along with my peers) am a better steward of my resources than the government.”  It is quite another to say, “it is my money, I earned it through my own hard work, and it is nobody else’s business what I do with it.”  The latter denies the web of relationships that brought the person to and sustains the person in a place of financial peace.  It denies God’s radical gift of all that we are, including our intelligence and ingenuity.  It also fails to see that using my wealth for the common good and the good of others is not solely an act of charity but also can be an act of justice.  As Mike Schutt says, there is an awful lot of this sort of modernist autonomy thinking going on even in conservative Christian circles, which is one of the reasons I eschew the label conservative for myself.

To the extent that Limbaugh’s rhetoric is fanning these flames of confusion, it ought to be criticized. 

Wednesday, January 16, 2008

Rush's Radical Autonomy

I wouldn’t label myself “conservative,” and I don’t know whether Rush’s views are within the main stream of American conservatism, but it seems to me that Rob is right that Rush’s views are disconnected from an authentic understanding of the human person.  I would go so far to say that no politically conservative Catholic with a well-formed conscience could assent to Rush’s aspirations of radical autonomy.

Maybe we ought to send Rush a copy of Alasdair McIntyre’s “Dependent Rational Animal.”

Tuesday, January 15, 2008

Wombs for Rent

In "Outsourced Wombs" an essay in the NYT, Judith Warner sees clearly the inhumanity of the surrogacy business but can't bring herself to condemn it completely because of the "good" it does by providing the poor with much needed cash and the infertile with babies.  What do you think of her analysis?

HT:  Maria Ruiz Scaperlanda

Here is an excerpt:

“... [W]hat’s going on in India – where surrogacy is estimated now to be a $445-million-a-year business — feels like a step toward the kind of insane dehumanization that filled the dystopic fantasies of Aldous Huxley’s “Brave New World” and Margaret Atwood’s “Handmaid’s Tale.” (One “medical tourism” website, PlanetHospital.com, refers to the Indian surrogate mother as a mere “host.”) Images of pregnant women lying in rows, or sitting lined up, belly after belly, for medical exams look like industrial outsourcing pushed to a nightmarish extreme.

I say “feels like” and “look like” because I can’t quite bring myself to the point of saying “is.” And in this, I think, I am right in the mainstream of American thought on the topic of surrogate motherhood.

Unlike in France, where commercial surrogacy is banned, or in Italy, where almost every form of assisted reproduction is now illegal, laws in the United States are highly ambivalent on this most drastic use of reproductive technology. Commercial surrogacy is legal in some states, illegal in others and regulated differently everywhere, and little that’s clear and conclusive about where a birth mother’s rights to a baby end and where the fee-paying mother’s rights begin.

Perhaps that’s all as it should be – murky, ambiguous and confused. The confusion, at least, acknowledges that there is more to the process of carrying a baby and giving birth to it than being an incubator on legs. It acknowledges that there are physiological and psychological factors that bind a mother and baby together at birth and a violence — perhaps temporary, perhaps not — that is done to each of them if you sever that unique bond.

“The human body is not lent out, is not rented out, is not sold,”

France’s highest court ruled back in 1991, when it outlawed surrogate motherhood. In the United States, lip service has long been paid to the notion that women can’t be instrumentalized as baby-making machines. …

But our rules of decency seem to differ when the women in question are living in abject poverty, half a world away. Then, selling one’s body for money is not degrading but empowering. …

Which brings us back to the fertile question of the “feels like” rather than the “is.” In an awful world, where many women are in awful circumstances, how do you single out for condemnation an awful-seeming transaction that yields so much life betterment? …

Maybe when greater steps are taken toward improving international adoption procedures, maybe when more substantive steps are taken to improve the health, status and education of women world-wide, it’ll be easier to say with a clear conscience that what feels like callous exploitation really is just that.”

Liturgy and Life continued

Tom asks "hasn't the invigoration of the laity in the last 40 years contributed to [inspiring huge numbers of average people to intense personal commitment, including commitment to the pro-life cause], and haven't those same 40 years also seen the emphasis on mystery in the Mass reduced and the emphasis on accessibility increased?"  My first reaction to Tom's question was "yes" but after reflection I don't have clear answer. In the end Tom's question raises several more questions for me. 

Has the faith become more accessible to Catholics with the liturgical changes post-Vatican II?  While in some ways, I think the answer is "yes" (mass in the vernacular, for example), in other ways I am not so sure.  This was driven home to me this past Sunday at Mass.  During the homily the priest was encouraging personal prayer, and he was instructing those assembled on how to undertake a daily examination of conscience.  Would this have been necessary forty years ago?  Or, would this have been an assumed part of a Catholic's daily commitment (whether or not done well), a part of personal commitment that has been lost along with the liturgical changes?

Has there been an invigoration of the laity in the last 40 years?  Lay persons are more visible in church in some ways - as communion ministers for example.  And, my sense is that there are more lay theologians and catechists than in years past.  But, ...  In reading Eamon Duffy's "The Voices of Morebath" I get the sense of an engaged laity in a 16th century rural English parish.  Every head of househould, for instance, had to take a turn as finance chair for the parish.  I also think of Dorothy Day's work and the whole Catholic Worker movement; Frank Sheed and Maise Ward, their publishing company and the Catholic Evidence Guilds; and the Maritains all in the early part of the 20th century.  Were they the exception to the rule or were there a number of lay Catholics with intense personal commitments (in prayer, in the quotidian tasks of running parishes, and in engagement with the culture) during earlier periods of church history?  Has the number of invigorated Catholics increased, decreased, or stayed the same since the liturgical reform?

Tom, thanks for asking the question, and I await an answer from someone with more knowledge than I.

Saturday, January 12, 2008

Life, Liturgy, and Prayer

Thank you Richard for your post on Liturgy and Life and Tom for your post on Tony Campolo and the Spiritual Exercises.  Two questions directed mainly toward Tom, our Protestant readers, and those who know much more about such matters than I.  First, do Protestants (or subsets of Protestants) have similar fault lines to those described in Richard's post?  Second, have prayer traditions comparable to the Ignatian Spiritual Exercises or Carmelite Spirituality with its contemplative dimension developed in Protestant circles? 

Friday, January 11, 2008

Catholic Perspectives on Law course at Oklahoma

This spring I will be teaching a seminar on Catholic Perspectives on Law using Recovering Self-Evident Truths:  Catholic Perspectives on American Law as the primary text.  Supplemental reading will be from the Compendium of the Social Doctrine of the Church, the Catechism, and a few other Church documents.  The students will also be required to read MOJ, and I have encouraged them to respond to posts and also to pose their difficult questions to the authors and readers of MOJ.

The draft course syllabus is reproduced, and I welcome your comments or suggestions for improving the course.  I also need specific help with the supplemental reading for Class 7 and Class 9.  What Church documents (preferably one’s I can get online) would go well with a section on Contract and Property Law? What Church documents (preferably one’s I can get online) would go well with a section on Criminal Law and/or Professional Ethics?

Class 1 - January 14

  • Francis Cardinal George, Foreword in Recovering Self-Evident Truths, pp. xi-xii.

  • Michael Scaperlanda and Teresa Collett, Introduction in Recovering Self-Evident Truths, pp. 1-14

  • Kevin Lee, The Foundations of Catholic Legal Theory:  A Primer in Recovering Self-Evident Truths, pp. 15-35.

I.  The Nature of the Human Person

Class 2 – January 28

  • Lorenzo Albacete, A Theological Anthropology of the Human Person in Recovering Self-Evident Truths, pp. 39-51.

  • Benedict Ashley, A Philosophical Anthropology of the Human Person in Recovering Self-Evident Truths, pp. 52-65.

  • Compendium: ¶¶ 1-6, 13-20, 34-37, 72-78, 105-159.

II The Person in Community

Class 3 – February 4

  • Avery Cardinal Dulles, Truth as the Ground for Freedom in Recovering Self-Evident Truths, pp. 69-84.

  • Catechism, Part III, Chapter One, Articles 2-7:  ¶¶ 1718-1719, 1730-1742, 1749-1756, 1762-1770, 1776-1794, 1803-1829.

Class 4 – February 11

  • Robert Vischer, Solidarity, Subsidiarity, and the Consumerist Impetus in American Law in Recovering Self-Evident Truths, pp. 85-103.

  • Robert Araujo, The Constitution and the Common Good in Recovering Self-Evident Truths, pp. 104-127.

  • Compendium:  ¶¶ 160-197.


III.  Political and Legal Theory

Class 5 – February 18

  • Christopher Wolfe, Why We Should (and Should Not) Be Liberals in Recovering Self-Evident Truths, pp. 131-151.

  • Robert George, Reason, Freedom, and the Rule of Law in Recovering Self-Evident Truths, pp. 152-160.

  • Compendium:  ¶¶ 377-427.

IV.  Substantive Areas of Law

Class 6 – February 25

  • Thomas Kohler, Labor Law:  “Making Life More Human” – Work and the Social Question in Recovering Self-Evident Truths, pp. 163-190.

  • Compendium:  ¶¶ 323-376.

Class 7 – March 3

  • James Gordley, Contract Law:  A Catholic Approach? in Recovering Self-Evident Truths, pp. 191-204.

  • Vincent Rougeau, Property Law:  Catholic Social Thought and the New Urbanism in Recovering Self-Evident Truths, pp. 205-219.

  • Compendium:  ¶¶ 323-376.

Class 8 – March 10

  • Amelia Uelmen, Tort Law:  Toward a Trinitarian Theory of Products Liability in Recovering Self-Evident Truths, pp. 220-253.

Class 9 – March 24

  • Richard Garnett, Criminal Law:  “Everlasting Splendors” – Death-Row Volunteers, Lawyer’s Ethics and Human Dignity in Recovering Self-Evident Truths, pp. 254-274.

  • Catechism, Part Three, Section Two, Chapter Two, Article 5 ¶¶ 2258-2267.

Class 10 – March 31

  • John Coughlin, Family Law:  Natural Law, Marriage, and the Thought of Karol Wojtyla in Recovering Self-Evident Truths, pp. 275-291.

  • Compendium ¶¶ 209-254.

Class 11 – April 7

  • Michael Scaperlanda, Immigration Law:  A Catholic Perspective on Immigration Justice in Recovering Self-Evident Truths, pp. 292-316.

Class 12 – April 14

  • Mary Ann Glendon, International Law:  Foundations of Human Rights the Unfinished Business in Recovering Self-Evident Truths, pp. 317-332.

  • Compendium ¶¶ 433-520.

Class 13 - April 21

  • Russell Shaw, Catholics and the Two Cultures in Recovering Self-Evident Truths, pp. 333-340.

  • Randy Lee, Epilogue in Recovering Self-Evident Truths, pp. 341-348.