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.

Saturday, December 31, 2005

Culture and Catholic Engagement with the broader community

I am reading Rocco Buttiglione's interesting and insightful book, Karol Wojtyla:  The Thought of the Man Who Became Paul John Paul II.  I thought I’d share one paragraph that caught my attention this morning.

“After the Communists came to power, [Cardinal} Sapieha realized immediately that culture would be the decisive battleground between them. … From the beginning, the Polish bishops decided not to petition on their own behalf against the regime which violated their ancient rights…  They chose instead to take a position in support of fundamental human and national rights, renouncing any particular reclamation which would have indicated that they made a distinction, not to say a contradistinction, between human rights and religious rights, between the inspiration of the nation and that of the Church.”

It seems to me that their decision was not only a correct one for them (as history seems to have confirmed) but provides powerful insight for our own time.  What do others think?

Michael S.

Saturday, December 24, 2005

Christmas and the Manger

Merry Christmas! 

It seems to me that there are two templates for living life: one dominated by power and control, the other by surrender, which comes with faith, hope, and love.  Without hope, without faith, without love - without purpose and direction - life is reduced to an attempt to exercise power over whatever little (or big) slice of life we can control. 

For centuries, God has proposed an alternative path, a path that will lead to true freedom and happiness.  It is the path of surrender to God and His will.  Throughout history, God has worked through the weak and the marginalized to show us this way, choosing David, the youngest in his family, to be king; choosing Mary, an unwed teenager, to bear His Son; choosing Israel as His people, etc.  On this Holy Night, God drives home this point by becoming (in the form of the second person of the Trinity) a completely vulnerable and dependent baby.  His first dwelling - a cave.

Peace on Earth, Good Will to All,

Michael S.

Christmas and the Manger

Merry Christmas! 

It seems to me that there are two templates for living life: one dominated by power and control, the other by surrender, which comes with faith, hope, and love.  Without hope, without faith, without love - without purpose and direction - life is reduced to an attempt to exercise power over whatever little (or big) slice of life we can control. 

For centuries, God has proposed an alternative path, a path that will lead to true freedom and happiness.  It is the path of surrender to God and His will.  Throughout history, God has worked through the weak and the marginalized to show us this way, choosing David, the youngest in his family, to be king; choosing Mary, an unwed teenager, to bear His Son; choosing Israel as His people, etc.  On this Holy Night, God drives home this point by becoming (in the form of the second person of the Trinity) a completely vulnerable and dependent baby.  His first dwelling - a cave.

Peace on Earth, Good Will to All,

Michael S.

Thursday, December 15, 2005

Michele Pistone on STEP OUT Migration

A few weeks ago, I invited Professor Pistone to comment on the Church's attitude toward "brain drain" migration.  I then left town and left her email sitting in my inbox.  I have pasted it below.  And, although it is long, it is well worth the read.

Professor Pistone:

Thank you, Michael, for inviting me to discuss my work and how the recent World Bank report on migration relates to it.  I also thank you for your kind words here and here about my “thought-provoking” book (co-authored with my husband, John J. Hoeffner, who also helped out on this post).  I should note, however, that if the book is thought-provoking, one very big reason why is that you generously commented upon an early draft of it.  Of course, I had to be wise enough to listen!

As for the book (“Stepping Out of the Brain Drain: Catholic Social Teaching in a New Era of Migration”), let me start by quoting the two-sentence description we recently drafted in response to a request from our publisher’s crack publicity machine:

            Catholic social teaching’s traditional opposition to “brain drain” migration from   developing to developed countries is due for a reassessment.  Stepping Out of the Brain Drain provides exactly this, as it demonstrates that both the economic and the ethical rationales for the teaching’s opposition to “brain drain” have been undermined in recent years, and shows how the adoption of a less critical policy could provide enhanced opportunities for poor countries to accelerate their economic development.

(Can you tell neither of us has any experience writing advertising copy?).

Anyway, it is remarkable how often the book’s various concerns have been touched upon by recent writings.  There is, of course, the very recent World Bank annual report referenced by Michael, Global Economic Prospects 2006: Economic Implications of Remittances and Migration.  A month earlier, a 273 page World Bank research report was released (International Migration, Remittances & the Brain Drain).  Recently, Gary Becker, the Nobel Prize-winning economist, published a piece in the Wall Street Journal called “Give Us Your Skilled Masses.”  And recent days on Mirror of Justice have seen numerous postings on the degree of assent required by Catholics to the magisterium’s teachings, which of course include the social teachings.  Finally, there’s Stephen Bainbridge’s post on usury, which is where I’d like to begin.

If I might summarize Stephen’s very informative post:  the Church (and others) frowned upon charging interest when, basically, only the wealthy had money, the poor majority were likely to need money for the most basic of necessities, and there was no market economy to speak of in which one could invest.  Under these circumstances, a prohibition on charging interest is highly defensible.  Indeed, if absolute power corrupts absolutely, who has more power than a rich person faced with a plea from a starving poor person who needs a loan to survive?

There is still a recognition in the law that vast differences in bargaining power can cause inequities for which the law must provide a remedy.  But there is also a recognition that good in the form of a more productive and creative economy can come from the availability of credit, and that most credit exchanges are entered into in order to preserve the purchasing power of one’s savings and to enhance (rather than to save) one’s life, e.g., my need for shelter doesn’t require me to get a mortgage, but I want one so that I can raise my daughter in a nice place and have a room (or two) of my own to go to when my husband becomes too annoying.  Over several millennia, in other words, the normal case has changed from one in which the charging of interest was likely to harm the common good and offend human dignity to one in which both the common good and human dignity could be enhanced by the availability of credit.  This change should make (and I think has made) a difference in the Church’s position.

Our book makes a similar argument, only with respect to highly skilled migration (which, utilizing an acronym we developed, we call STEP OUT migration in a probably quixotic effort to stamp out the terribly loaded “brain drain.”).  The old brain drain, er, I mean STEP OUT, literature was overwhelmingly negative toward highly skilled migration.  And there is a negative case to be made: the country of origin, for example, can lose the substantial investment it has made in the education of the migrant; it can suffer by losing skills in short supply; and it loses tax revenues the migrant might have provided.        

But is the negative case the whole case?  We think not, and a substantial new literature makes the argument.  The positive case for highly-skilled migration makes many points, e.g., the “brain drain” is ameliorated and perhaps even outweighed by the increased incentive for education that the possibility of emigration provides; the prospect of return migration, i.e., “brain return,” confers many benefits and is occurring with increasing frequency; and the persistent underutilization of educated persons in many countries (at least for certain careers) makes the impact on developing nations less draining than it at first might appear.

The core of the new thinking, however, emphasizes that the creation of well educated diasporas can bring positive benefits through exchanges of information and the development of contacts.  Some of the more easily measurable benefits include increases in remittances (which both recent World Bank publications focus upon), foreign direct investment, and trade.  Such migration also can increase origin countries’ influence in receiving countries – during the 2004 Presidential election, for example, U.S.-based Indian professionals mobilized in the

U.S.

to moderate the parties’ positions on offshore outsourcing.  Another benefit, difficult to measure but undeniably present in some degree, occurs when migrants devote themselves to using the resources of a developed nation to develop technologies that will be especially beneficial to their home country.

All things considered, does the positive case outweigh the negative one?  Gary Becker thinks it does.  His Wall Street Journal article calls for increases in highly skilled migration and states that it “usually benefits the sending and receiving country.”  The World Bank’s annual report frames a similar conclusion a little less enthusiastically:  “In some instances, high-skilled emigration has a negative impact on living standards of those left behind and on growth . . . [b]ut high-skilled migration is often beneficial for origin countries.” (page 67).

Should these assertions – and the many studies that support them – be enough to lead the Church to change its position?  After all, there are a lot of qualifiers in the preceding paragraph: “usually,” “some instances,” “often.”  Despite these words, our answer is an unqualified yes.

The reason why gets into questions of the relationship between – and the differences between -- fundamental moral principles and prudential judgments.  For the Church, opposition to brain drain stems from the application of the two fundamental principles of the common good and human dignity.  Adherence to these principles should be unyielding.

But the prudential judgment that highly-skilled migration should be discouraged because it offends human dignity and the common good deserves no permanent place in the social teaching.  The continued viability of that judgment is contingent upon a host of economic and technological understandings that time may prove to have been unfounded from the start, or which may have become unfounded in the course of time.

In particular, in deciding whether the prudential judgment to oppose brain drain remains appropriate, it matters whether the effect of brain drain on economic development is negative, positive, or mixed; it matters whether development might be expected to occur quickly or not; it matters whether trade or an insular self-sufficiency is the cornerstone to economic growth; it matters whether and to what extent technology allows migrants to keep in touch with and assist their home countries even when away; it matters whether or not, over the last 40 years, nations that have experienced substantial brain drain also have experienced good growth; and it matters whether or not, on the individual and national levels, brain drain is appropriately regarded as a permanent or temporary phenomenon.

Over the course of the last four decades, the consensus answer to every one of these matters changed substantially, sometimes because the world changed, and sometimes because our understanding of the world changed.  But in all cases, the change was in a direction that weakened the foundations of the prudential judgment against skilled migration, perhaps especially from the perspective of a person concerned about the common good and human dignity. 

Given this historical development, the prudential judgment against highly-skilled migration appears much shakier than it did 40 years ago and, at best, on no firmer ground than the opposite judgment.  Under these circumstances, fidelity to the prudential judgment may very well mean practical support for a policy that disserves in some ways fundamental human dignity and common good concerns.  In our view, the Church should not maintain a judgment that places it in such a position.  Instead, in this case, it should adopt a neutral position, while trying to ameliorate the negative effects and trying to maximize the positive effects of highly-skilled migration.

I know I’ve run very long here, so I’ll be merciful and note my last point very briefly.  We believe that additional support for our position, albeit support of a different type, can be found in the three great social encyclicals of Pope John Paul II:  Laborem Exercens, Sollicitudo Rei Socialis, and Centesimus Annus.  Together, these three encyclicals give a heightened emphasis to the nature and purpose of work and, more explicitly than ever before, place the right to pursue freely the work of one’s choosing high among the hierarchy of fundamental rights.  Centesimus Annus also emphasizes that certain structural preconditions may be necessary in a society in order to ensure an adequate realization of the right.  The Pope’s articulation of these points implies an increased recognition of the magnitude of the affront to human dignity that occurs when the opportunity for creative work is denied, and thereby implicitly strengthens the ethical case for skilled migration (or, perhaps it is better to say, weakens the case against skilled migration).

By the way, if some of this post has sounded familiar to any of the Mirror of Justice regulars, that’s probably because you have heard it before – from me, two years ago at the first Journal of Catholic Social Thought conference at Villanova.  That was when I was pregnant but before I became a mother, which means that birthing a child must be easier than birthing a book.  But, after much hard labor, the book will come out, too – in only six more months, I’m told.

Sunday, December 4, 2005

Conscience and Public Dissent

Assuming arguendo that McCormick (see Steve's post here) is correct that “[A] community without it is a community in comfortable stagnation,” it still does not follow that an individual community member is bound by conscience to publicly speak of his or her dissent.  Instead, the individual is making a judgment that speaking would be in the best interest of the community.  My point is that there are two separate movements when someone says "I dissent from teaching "X" or instruction "Y."  An exercise of conscience and a judgment (not bound by conscience) to speak of the dissent.

Pax, Michael S.

Friday, December 2, 2005

Conscience and Silence

I have been following with great interest the discussion on dissent/disagreement and the rights of conscience, here, here, here, and here, among other places.  As for myself, I am always leary of concluding that my conscience is well-formed when it comes to concluding that the Church is wrong, and I am right.  After all, I have been through a three year program in the art of rationalization (law school), I am bound by intellectual and spiritual limitations, I am a product of a particular time and culture, etc.  But suppose hypothetically that after much prayer and study, I conclude that I must dissent or disagree with the teachings of the Church, must I also speak about it? 

In other words, even if I disagree/dissent, does my conscience compel me to say so out loud?  If so, why?  In most cases, I wouldn't think that I have a duty to speak and publicly proclaim my dissent/disagreement, and I think there are powerful prudential reasons for keeping my private conscience private.  What is gained by public disagreement/dissent?  Do I hope to help inform the Church?  Might I cause scandal or confusion among the Catholic faithful, the separated brethren, and non-Christians by my public dissent/disagreement?  If I must speak, am I acting in love and humility, open to the possibility that I may be wrong and with firm belief that the Holy Spirit will guide the Church in the right direction in the long run?

The fact that my private conscience leads me to dissent/disagree seems to me to be a completely separate issue from making the contents of my conscience known publicly.

What do you think?

Michael S.

Engaging the Church

Rob asks "isn't the bridge we're constructing between the Church and the legal culture open to traffic in both directions?"  I think the answer is yes.  This is precisely Michele Pistone's project regarding the Church's view of brain drain emigration.  She argues (persausively, I might add) that the Church's view on brain drain emigration is based on faulty or incomplete sociology and economics.  And, she is asking the Church to reconsider its position in light of new data. 

Michael S.

Wednesday, November 30, 2005

Friendly Amendment - Theology and Catholic Legal Theory

Patrick Brennan offered a friendly amendment to my posting on homosexuality and Catholic Legal Theory.  I appreciate Patrick's post, but speaking solely for myself I must in friendship decline his amendment.  I agree with Patrick that "what we face are, in the first instance, questions of theology, not of Catholic legal theory."  In developing Catholic Legal Theory, a Catholic worldview (including its theology and philosophy) are brought to interact with the law and legal institutions. 

As a lay person involved in the law, I view my vocation as attempting to bring Christ into the world within the particulars (as a law professor at a public unviversity) of my life.  To do this, I struggle to learn some theology and philosophy, and I also beg God daily for the grace to conform my life and my will to His.  (As you know, I need a lot more grace in this department).  For me, this is a full plate.

When it comes to the teachings of the Church (on issues of faith and morals), I try to understand and adhere to them to the best of my ability knowing that professionally these teachings - with a rich 2000 year history of intellectual thought and fervor addressing almost every aspect of life - provide a firm and thick launching pad for my work. 

I do not, however, have a professional vocation when it comes to the internal workings of the Church - to the development of doctrine within the Church, to debating whether particular matters are even open for development, etc.  I'll leave these internal issues to those who have been called to address them.  This does not mean that I am a wilting flower blindly deferring to priests and the institution.  More than once, I have privately (as a parishoner not as a law prof) helped our priest to become a better pastor by criticizing (sometimes severely) his behavior. 

In the end, I view my professional call as outward looking, helping the world see through the Church's eyes (as Frank Sheed once said), and not inward.  Again, I speak only for myself and my calling.   

Pax Christi,

Michael

Monday, November 28, 2005

Emigration Brain Drain?

Zenit reports:

"Money Sent Home: A Boost for Many Nations
Study Highlights Role of Migration in Helping Development

WASHINGTON, D.C., NOV. 26, 2005 - International migration can be an important tool in helping developing countries, affirmed a World Bank report published Nov. 16. Migrants and the money they send back home, remittances, is the main theme in the annual "Global Economic Prospects report for 2006."

"The challenge facing policy-makers is to fully achieve the potential economic benefits of migration, while managing the associated social and political implications," commented François Bourguignon, World Bank chief economist.

Officially recorded remittances worldwide exceeded $232 billion in 2005. Of this, developing countries received $167 billion, more than twice the level of development aid from all sources. The report estimates that remittances sent through informal channels could add at least 50% to the official tally, making them the largest source of external capital in many developing countries. The report considered that it is plausible that in the coming years, official remittance flows will continue to rise at the 7% to 8% annual rate seen during the 1990s.

The countries receiving the most in recorded remittances are India ($21.7 billion), China ($21.3 billion), Mexico ($18.1 billion), France ($12.7 billion) and the Philippines ($11.6 billion). Those for which remittances account for the largest proportion of gross domestic product are Tonga (31%), Moldova (27.1%), Lesotho (25.8%), Haiti (24.8%) and Bosnia and Herzegovina (22.5%).

Remittances were larger than public and private capital inflows in 36 developing countries in 2004. In another 28 countries, they were larger than the earnings from the most important commodity export. In Mexico, for example, remittances are larger than foreign direct investment, and in Sri Lanka they are larger than tea exports.

The United States was the largest source country, with nearly $39 billion in outward remittances in 2004. ...

Costs and benefits

The World Bank explained that over the past two decades barriers to cross-border trade and financial transactions have fallen significantly, facilitating the transfer of money. At the same time, despite its economic benefits, migration remains controversial. While it brings benefits for some there can be important losses for other individuals and groups. Some workers may see an erosion of wages or employment, for example, due to the increased numbers of immigrants.

Migrants, too, pay a price, even if they reap economic advantages. Many immigrants, the report explained, particularly the irregular ones, suffer from exploitation and abuse. Then there are costs involved, especially those related to the exorbitant fees paid to traffickers. The family members left behind, particularly children, also suffer, while at the same time they benefit from the extra income that migrants send back home to their families. ...

The World Bank did warn, however, that in the long run the policies of developing countries should aim to generate adequate employment and rapid growth, rather than relying on migration as an alternative to development opportunities.

Losing skills

The situation is different in the case of emigration by those with high levels of skill. It also brings economic benefits, and when the expatriates return they bring with them important overseas connections, which can improve access to capital and technology, as well as business contacts for firms in the country of origin.

But, on the negative side, large outflows of high-skilled workers can reduce growth in the origin country. Education and health services in the countries of origin may be impaired due to the loss of personnel. As well, the country loses its return on high-skilled workers trained at public expense..."

While generally friendly to e/immigration, the Catholic Church, using social science data from the 1960's, has frowned upon "brain drain" - the transnational migration of highly skilled workers from developing countries to developed countries.  In a though provoking book (forthcoming), VIllanova's Michele Pistone argues that the social science data underlying the Church's position is wrong (or at least has been superceded).  Her research, much like the World Bank's report, suggests that the development picture is much more complex than the Church seemed to assume 30 or 40 years ago, and that the so-called "brain drain" may actually have a positive effect on developing countries. 

I have invited Professor Pistone to comment on the World Bank's report and on her own work in this area and look forward to receiving her comments.

Michael

Homosexuality, Helminiak, the Bible, and the development of Catholic Legal Theory

Last week Steve Shiffrin blogged on "Person's with 'Homosexual Tendencies' in the Priesthood."  In that post, he discusses an NCR article:  "The article is mainly about Fr. John J. McNeill who wrote The Church and Homosexuality in 1976 in which he rejected Vatican teachings on same sex relations and became something of a celebrity. The article suggests that McNeill's intellectual successor is Daniel Helminiak, a 62-year-old psychotherapist and professor of psychology at the University of West Georgia. Helminiak is  the author What the Bible Really Says About SexualityHe is convinced "the old biblical, theological and psychological disputes have now been resolved in favor of gay and lesbian relationships."  He maintains the evidence is “incontrovertible.” [I wish it were that good!]"

On a personal level, I hold Daniel Helminiak in high esteem, but I must confess that I haven't read his book.  What is the basis for his conclusion that "the old biblical, theological and psychological disputes have now been resolved in favor of gay and lesbian relationships"?  On what basis does he conclude that the evidence is "incontrovertible"? 

Thanks, Michael S.