From our friend, John Inazu, announcing publication of the volume of Duke's Journal of Law & Contemporary Problems that he helmed (and to which I and Michael Moreland, among others, contributed):
Dear
Friends and Colleagues,
I am
pleased to announce the publication of a volume on Theological Argument in Law
just out in Duke's Journal of Law & Contemporary Problems. The volume
bridges connections between legal scholarship and the work of theologian
Stanley Hauerwas. Contributors include Bradley Wendel, Elizabeth
Schiltz, Michael Moreland, James Logan, David Skeel, Cathleen Kaveny,
Charlton Copeland, John Inazu, Stephen Carter, and Stephen Macedo. The
volume also includes a dialogue between H. Jefferson Powell and Stanley
Hauerwas, and a response to the articles from Hauerwas.
The
table of contents for the full volume is here (all articles are freely
downloadable as pdf files):
For
those interested in a brief overview, here are are a few words from my
introduction to the volume:
Stanley
Hauerwas has emerged as one of the foremost scholars and public
intellectuals of the last four decades. He has written scores of
books and hundreds of articles, has been named 'America’s Best Theologian'
by Time magazine, and has delivered the prestigious Gifford
Lectures. He has arguably 'articulated the most coherent and influential
political theology in and for the North American context' and has been 'at
the forefront of major transformations in theology' including virtue
ethics, the role of narrative and community, and understandings
of medicine and illness. Hauerwas’s arguments have shaped
theological education and reached a broader public through books and
sermons—both his own and those of the pastors and educators whom he
has influenced. His views have been scrutinized by some of the
leading thinkers in religious studies, sociology, history, political
theory, moral philosophy, and literary theory. And they
have been largely ignored in legal scholarship.
The inattention to Hauerwas in legal scholarship is particularly odd given
that he has written for decades about issues central to the law: violence,
liberalism, bioethics, disability, interpretation, capital punishment,
just war theory, reconciliation, public reason, patriotism, euthanasia,
abortion, and religious freedom, to name only a few of the more obvious
connections. And the general lack of familiarity with Hauerwas by
legal scholars (even among many of those who write in the area of law and
religion) has contributed to a growing divide. As Jeffrey Stout has
observed, '[t]he more thoroughly Rawlsian our law schools and ethics
centers become, the more radically Hauerwasian the theological schools
become.' . . .
Some
of Hauerwas’s critics may be right to argue that he 'reacts against a type
of liberalism that exists mostly on the pages of books by Rawls, Rorty,
and their followers, and not in actual practice.' But that
description is least true of the academy. Much teaching and
scholarship relies upon unacknowledged constraints on argumentative
practices from professors who embrace the ideals of Rawlsian public
reason or, more strikingly, whose epistemic commitments welcome a
spectacular diversity of viewpoints and worldviews—except
for theological ones. As a result, a great deal of
scholarship ignores or too easily dismisses theological argument. . . .
Engagement
with theological argument is not easy—it requires patient reading and
thinking, particularly from those confronting unfamiliar discourses and
ideas. But the effort is both philosophically and vocationally
warranted. With respect to the former, an openness to the 'other' is a
core dimension of the poststructuralist thought embraced by many legal
scholars. With respect to the latter, the task of mediating
unfamiliar concepts and ideas is part of what lawyers do. Our
engagement with challenging ideas—including theological ones—helps us to
make 'connections to possible and plausible states of affairs' and to
'integrate not only the ‘is’ and the ‘ought,’ but the ‘is,’ the ‘ought,’
and the ‘what might be. . . ’
And
here are a few excerpts from Professor Hauerwas's response at the end of the
volume:
That
the law has always been important for me may seem odd. After all, I am
usually associated with those who began to emphasize the importance
of the virtues as an alternative to ethics, which is more determined by
analogy to the law. Of course I have never been happy with the
assumption that an ethic of the virtues is somehow antithetical to, or
exclusive of, law-like accounts of our moral lives. I have associated the
idea that you must choose among a deontological, teleological, or virtue
ethic with minds who think that typologies can be identified with
thinking. . .
There
is another reason the law has always fascinated me, which may surprise
some given my commitment to Christian nonviolence. The law is
so interesting because it is about power and manifests power. That
power may at times be violent, but power can also often be an alternative
to violence. These are not theoretical issues but everyday realities
entailed by the work of the law.
The
law is a morally rich tradition that offers a language otherwise
unavailable for the conflicts we need to have as a society. That is a
tradition in which I should like to count myself a participant.
I
hope that these and the rest of the contributions will be of interest to you.
I would welcome any feedback you have.
Like Rick, I'm greatly enjoying the Notre Dame Center for Ethics & Culture's Fall conference on "The Crowning Glory of the Virtues: Exploring the Facets of Justice." Judging by the quality of the conference, Carter Snead is proving himself a worthy successor to David Solomon as Director of the Center. (Not that there was any doubt that he would be, but that is a hard act to follow.)
These conferences are always marked by the breadth of the speakers, disciplines, and topics addressed. As much as I love having my mind stretched by a few days of such wide-ranging and stimulating discourse, I always leave feeling slightly discouraged by the ever-increasing list of things I really want to read. Alisdair MacIntyre yesterday afternon made a compelling case that any American Catholic could better understand her place in our current polarized political climate by reading the poetry of Charles Peguy, and memorizing more of the poetry of Walt Whitman. Robby George & Michael Sandel's colloquy on "The Moral Limits of Markets" added to my reading list Sandel's new book, What Money Can't Buy, which I now feel I ought to read so I can decide whether Robby or Sandel was correct about whether it's wrong of me to try to get my kids to do their homework by paying them money, or by prodding them to do it "because they love mommy", and whether or not I ought to call doing either of those things "bribing", or "incentivizing" or some new word that hasn't yet been invented.
For those of you who might want to join the fun here today for a day's worth of programming that ends with an evening talk by John Finnis on "The Priority of Persons Revisited", if you aren't an early enough riser to catch the panel with Rick Garnett, Michael Moreland & Paul Horwitz chewing the fat on religious liberty & justice, you can slip in at 3:15 to hear me (as well as Paolo Carozza and Andrea Simoncini) on a panel on "Elementary Human Experience and the Foundations of Law."
A propos Rick's recent post on the upcoming Massachusetts vote legalizing assisted suicide, John Inazu brought this gripping op ed piece from the NYT to my attention. The author, Ben Mattlin, introduces himself as follows: "As a good pro-choice liberal, I ought to support the effort. But as a lifelong disabled person, I cannot." He explains:
My problem, ultimately, is this: I’ve lived so close to death for so
long that I know how thin and porous the border between coercion and
free choice is, how easy it is for someone to inadvertently influence
you to feel devalued and hopeless — to pressure you ever so slightly but
decidedly into being “reasonable,” to unburdening others, to “letting
go."
. . . a few years ago, when a surgical blunder
put me into a coma from septic shock, the doctors seriously questioned
whether it was worth trying to extend my life. My existence seemed
pretty tenuous anyway, they figured. They didn’t know about my family,
my career, my aspirations.
Fortunately, they asked my wife, who knows exactly how I feel. She
convinced them to proceed “full code,” as she’s learned to say, to keep
me alive using any and all means necessary.
From this I learned how easy it is to be perceived as someone whose
quality of life is untenable, even or perhaps especially by doctors.
Unfortunately, I think that perception is just as common in decisions at the beginning of life as at the end of life.
This year, the Murphy Institute's Hot Topic: Cool Talk is joining the bandwagon in focusing on religious liberty. Speakers at our first two programs this year shared what I thought was a very telling message -- getting "back to the basics" of the religious traditions they represented.
Just last week, Rob Vischer from UST Law and Abdulwahid Qalinle, an adjunct law professor at the University of Minnesota Law School and director of its Islamic Law and Human Rights Program, engaged the topic: The Dangers of Anti-Sharia Laws: Muslim and Catholic Perspectives. (We co-sponsored this with UST's Muslim-Christian Dialogue Center.) As you can see from the video of the event here, one of the points made a number of times by Professor Qalinle (most directly in response to an audience question about Pakistan's blasphemy laws) was that the Koran says: "do not insult the religous beliefs of others", and allows people to disbelieve the Koran itself, if they are not convinced of its truth.
In September we opened the program with a dialogue on "Vatican II on Religious Freedom: European and American Perspectives", featuring UST Law's Reggie Whitt and the Most Reverend Charles Morerod, OP, of the diocese
of Fribourg, Lausanne, and Geneva, Switzerland. Bishop Morerod is the
former rector of the Angelicum in Rome,the former Secretary General
of the International Theological Commission and Consultor for the
Congregation for the Doctrine of the Faith, and currently a member of the Congregation for Catholic Education. One of Bishop Morerod's basic points in describing the evolution of Church thought that led to the promulgation of Dignitas Humanae was the Church asking itself (if I may paraphrase, since Bishop Morerod used much sophisticated and elegant language, as you can see by watching this video of the event) "What Would (did) Jesus Do?" As Bishop Morerod put it, Jesus never forced any of his disciples to follow him, and, indeed, most of the people he encountered did not choose to follow him.
When I get lost in the thickets of some of the more sophisticated religious libery debates, I sometimes find it helpful to be reminded of the basics.
UST Law is pleased to announce "Habemus Deanam...." -- and it's none other than prolific MOJ'er and scholar, Rob Visher. See the full announcement here, and join me in congratulating Rob!
Across the Pond, the E.U. has apparently given up on pushing a proposal to mandate that corporate boards have at least 40% women (or, as their spokesperson so delicately put it: “decided to take a little more time so that it can reach an ambitious consensus” on the proposal).
Meanwhile, here in the U.S., a new study by the American Association of University Women finds that "Nearly 50 years after the Equal Pay Act of 1963 was enacted, women
continue to earn less than men do throughout their careers, and the gap
is seen as soon as one year out of college".
The study seems to belie some of my own speculation that the pay gap is largely due to choices women make, or decisions women make due to the lack of any other choices, with respect to dependent care. It concludes:
The report offers some suggestions that could help remedy the pay
gap. First, it says, women can make different choices to enhance their
earning potential, such as paying attention to which majors offer the
best salaries and becoming more willing to negotiate for higher
salaries.
Such measures, however, are not enough, Ms. Corbett said. Because
women are paid less in every field, she said, "making a different job
choice won't avoid the pay gap."
Therefore, she said, it is up to employers and lawmakers to take
stronger action. The study suggests that new legislation is needed to
modernize and strengthen the policies that exist, and that employers
need to check their own pay scales to make sure they are paying women
equally.
"This is not something that women can do on their own," Ms. Corbett
said. "Research shows that people tend to undervalue women's work. This
is something we really have to work on if we want to fix the pay gap."
Precisely what care feminists like Joan Williams, Pope John Paul II, and people like me (see this article) have been arguing for years!
Last night, I attended a brilliant talk hosted by the University of Minnesota's MacLaurinCSF, the campus's Christian study center (which, under the leadership of the energetic Bryan Bademan, is thriving in its mission of "Strengthening Christian thinking & bridging Church and University"). The talk was by Roger Lundin, Arthur F. Holmes Professor of Faith and Learning at Wheaton College, on the topic: "No Ordinary People: C.S. Lewis on the Life of the Mind and the End(s) of Love."
Lundin focused on this 1942 sermon of C.S. Lewis, "The Weight of Glory" which ends with these brilliant words. I wonder how different a Presidential debate (and for that matter, all political discourse) might sound if THIS were on the forefront of everyone's minds?
The load, or weight, or burden of my neighbour's glory should be laid daily on my back, a load so heavy that only humility can carry it, and the backs of the proud will be broken. It is a serious thing to live in a society of possible gods and goddesses, to remember that the dullest and most uninteresting person you talk to may one day be a creature which, if you saw it now, you would be strongly tempted to worship, or else a horror and a corruption such as you now meet, if at all, only in a nightmare. All day long we are, in some degree, helping each other to one or other of these destinations. It is in light of these overwhelming possibilities, it is with the awe and the circumspection proper to them, that we should conduct all our dealings with one another, all friendships, all loves, all play, all politics. There are no ordinary people. You have never talked to a mere mortal. Nations, cultures, arts, civilization -- these are mortal, and their life is to ours as the life of a gnat. But it is immortals whom we joke with, work with, marry, snub, and exploit--immortal horrors or everlasting splendors. This does not mean that we are to be perpetually solemn. We must play. But our merriment must be of that kind (and, in fact, the merriest kind) which exists between people who have, from the outset, taken each other seriously--no flippancy, no superiority, no presumption. And our charity must be a real and costly love, with deep feeling for the sins in spite of which we love the sinner--no mere tolerance or indulgence which parodies love as flippancy parodies merriment. Next to the Blessed Sacrament itself, your neighbour is the holiest object presented to your senses. . . .
An MOJ reader from Ireland e-mailed me with the following set of questions. I’ll open comments, for anyone who would like to respond.
The first e-mail explained: “One of the difficulties facing young people in Ireland is that of drugs. Ireland has become more and more like other Western countries in recent years. Alasdair MacIntyre made an interesting comment about Ireland at the ND Fall conference about ten years ago. Ireland travelled the same path the USA travelled - in our case it was 10 years rather than 200 years. Here is the quandary; parishioners and those with whom groups like the St. Vincent de Paul society work may have 'drug debts'. In these cases, failure to pay may mean mutilation or murder. Who pays the debts? Those who are drug addicts cannot. They either don't have the money or may buy drugs from another source. What are the obligations of the family of the addict? What of Church organisations? What of the obligation of the police?”
My Contracts Professor response to this reader was as follows: “Of course any the analysis I can offer is only a crude one based on American common law generally; in the U.S., I think this would be entirely a matter of state law, which might vary in different states, and I have no idea what the law in Ireland is. But, if I am understanding the question correctly, the answer really doesn't depend on what 'the law' says. If the issue is debt to a drug dealer, presumably the transaction itself is illegal, and therefore the law wouldn't impose any sort of binding obligation on any party -- the only means of enforcing the debt would be the extra-legal methods you described -- ie, mutilation or murder. Generally speaking, obligations incurred for the sale of anything are enforceable only as contracts -- ie, I promise to give you drugs, you promise to give me money. But if the transaction is an illegal transaction, at least in the U.S., no court would enforce the contractual obligation. More importantly, probably, no litigant would ever attempt to use a court to enforce such a contract; so the person wanting to collect is left to the extra-legal methods. So I think the answer to your question is that no one has any legally enforceable obligation to 'pay the debt' -- not the parents, the Church organizations, or even the user, really. That's the risk any dealer who is selling drugs without payment up front has to pay.”
The reader pressed me, though, and asking: “What of the moral obligations here? I'm sure that the legal analysis will be in accordance with what you have written. The difficulty is that there is a possibility in some of these cases where a threat is made that it will be carried out. The right to bodily integrity and the right to life (either/or) of the one owing the debt and perhaps the right to bodily integrity and the right to life of some of his/her family and friends may be at stake. Whatever the law may state, there may also be obligations towards human life of the penitent drug user on the ethical level. What of family, what of those who care for other members of the family? It's certainly a real problem. I know, from talking to a priest and a lawyer who deal with this issue, that when a debt is relatively small (some few hundred euro), it is recommended that the money be paid.”
Ronald Mann (who is always original and insightful on consumer credit regulation) just posted an interesting, short, readable (from a talk) paper on SSRN: “After the Great Recession: Regulating Financial Services for Low-and Middle-Income Communities.” He critiques the “modern, post-recession regulatory strategy” exemplified by the approach of the new Consumer Financial Protection Bureau—an agency that Mann points out is uniquely the creation of the work of academics (most notably Elizabeth Warren) – both in concept and in its regulatory strategy (based on behavioral economics). Mann argues that the CFPB’s strategies display two fundamental flaws. First, he argues, they are “designed by and for traditional middle-class households, their behavioral tendencies, and their problems.” He argues that much of the writing supporting the CFPB’s regulatory approach starts from the premise that financial service providers use “tricks” to entice consumers to make foolish financial decisions (such as borrowing from payday lenders instead of using credit cards). The solution to this lies in “classical neoliberal regulatory strategy: using paternalistic intervention to correct market imperfections.” In fact, Mann argues, there is a growing body of research showing that low-and-middle income (“LMI”) households are in fact very adept at making financial decisions that are, in fact, the most sensible decisions for their situations. For example, it might be perfectly rational for someone close to the poverty line to borrow for short-term emergencies from a pay-day lender, rather than use unused credit on a credit card; the payday lender will only lend to someone with a job, which the credit card line would still be available if a borrower loses that job and really needs money for a family emergency.
This leads to Mann’s second ‘fundamental flaw’: the CFPB’s approach focusses exclusively on problems in the “market interface between the financial services firm and its customer” (such as disclosure requirements to unmask the ‘tricks’ used by lenders), ignoring and diverting attention from other relevant social or economic issues. Mann argues that the basic problem isn’t that LMI households are being tricked, but rather than they are poor. Behavioral economic’s focus on how we can stop people from making unwise choices misses the larger problem of the lack of any financial options for the truly poor. He states: “What we need to do is help them with the difficulties of being poor, not pretend that their poverty is irrelevant to their financial choices.”
Mann doesn’t claim to have any magic solution to the problem of poverty, but he recommends that the CFPB take a broader and more careful look at the reality of distressed households’ situations. Instead of paternalistic approaches involving protecting LMI households from the alternative financial services providers preferred by LMI households (like payday lenders), and disadvantaging such providers by restrictive regulatory regimes not applicable to the more traditional financial service providers that he middle and upper classes us, Mann suggests the CFPB might try to creatively work with lenders to try to foster a model of small-loan lending that could be profitable for legitimate lenders, and serve the short-term credit needs of the poor.
Mann’s conclusion brings to mind some of the discussion in Pope Benedict’s Caritas in veritate about the value of alternative credit providers such as pawn shops, micro lenders, etc. (discussed in this article of mine a few years ago).
A collection of centers and institutes at the University of St. Thomas is putting on a series of talks entitled: "Daring to be Different: Creating a vision of Catholic Higher Education in Challenging Times." The goal of the series is to prompt conversation on the same sorts of Catholic identity questions posed by Rob and Greg in recent posts. (The title of the series comes from St. Thomas' history. The following quote is often attributed to our founder, Archbishop John Ireland -- though we can't seem to track down the exact cite: “St. Thomas is not Harvard, or Stanford or the University of Minnesota — all institutions of highest quality. St. Thomas is different. Dear friends, we must dare to be different.” The question we are posing for this series is: "In the context of the challenges facing Catholic higher education today, what should “daring to be different” look like for our community?"
Yesterday's installment in the series was a wonderful talk by John Garvey entitled "The Challenges of Mission-focused Leadership at a Catholic University." In his typically brilliant and elegant way, John shared the vision animating many of the initiatives he is implementing as President of the Catholic University of America. He focused on the interplay of the complementary relationship inherent in a Catholic University's dual responsibility to nurture the intellect and the faith of its students. One of his main points was that the Catholic lay men and women who have taken over the majority of the administrative and faculty positions at Catholic universities from the religious men and women who used to run our schools have to take seriously their responsibility for moral, as well as intellectual, formation of the students entrusted to us. This has to be done not only through the institutional messages a university sends with decisions like choices in honorary degree recipients, but also in structural initiatives that witness positively to the sorts of values we would like to inculcate. Examples of some of the initiatives John is implementing at Catholic University include reinstituting single-sex dorms, encouraging religious men and women associated with the university to live in the dorms, and university-wide promotion of positive values -- such as a month dedicated to awarding medals to members of the community displaying fortitude, and a focus on temperance during March, the month of St. Patrick's Day and Spring Break. In addition to these sorts of institutional messages from administrators, John also argued that the individual lay faculty members have to assume greater responsiblity for modelling lives of faith and sanctity. In an interesting interpretation of the 'Catholic majority' mandate of Ex corde and the US Bishop's norms for implementation of Ex corde, John suggested that this mandate reflects the Pope and Bishops' acknowledgement of the laity's greater competence in running universities, which carries with it the greater responsibility for making personal and institutional decisions that preserve the Catholic identity of the institution.
Since this was a talk by the brilliant John Garvey, my blog post can only capture one of the many important threads running through the talk. I can only hope he publishes it somewhere soon. In the meantime, I offer this link to his recent (June 13) address at the USCCB General Assembly on "Religious Freedom and the Love of God", as well as his lovely recent reflection on the martyrdom of the scribe Eleazar from the 2nd Book of Maccabees in the Chronicle of Higher Education, "A Matter of Faith and Freedom." (And, for just for a smile, a great picture of most of John's 15 grandkids.)
