The New York Times reports that married couples now make up a minority of American households.
Rob
Saturday, October 14, 2006
An ominous milestone . . .
Friday, October 13, 2006
Tamanaha on Legal Instrumentalism
One recurrent theme of our conversations on MoJ has been the extent to which the law can and should be viewed as simply a means to accomplishing noble ends. This theme is at the center of an important new book by my friend and former colleague Brian Tamanaha, Law as a Means to an End. The book "traces the rise of the instrumental view of law in the course of the past two centuries, then demonstrates the pervasiveness of this view of law and its implications within the contemporary legal culture, and ends by showing the various ways in which seeing law in purely instrumental terms threatens to corrode the rule of law." Larry Solum writes that "[t]his is not just an important book--it is THE important book of legal theory for this decade."
Rob
Thursday, October 12, 2006
Wine, Women, and Taxis
Thanks to Lisa for updating the story of Somali taxi drivers' conscience claims. Just to be (relatively) clear on my position, I would oppose the state legally empowering individual drivers to refuse passengers on any moral ground the driver deems relevant. I would also (more tentatively) oppose the state forbidding taxi companies from working out limited accommodations of the drivers' conscience claims. Within these two boundaries, there remains plenty of room for debate. If the state (i.e., the airport commission) is simply proposing a system for allowing drivers to self-identify as a way of avoiding the transport of liquor from the airport, that seems sensible provided that there are plenty of drivers who would not so identify. Having the state facilitate gender discrimination (the story of Lisa's friend) is a different story, both because of the invasiveness of the moral judgment involved (my status as a woman versus my status as someone carrying a bottle of wine) and because gender equality, after decades of debate in the marketplace of ideas, can, in my view, be considered a foundational norm in our society that is the proper object of state regulation, at least on matters of political and economic participation (which would include access to publicly licensed transportation).
Rob
Tuesday, October 10, 2006
Habermas on Religion in the Public Sphere
Jurgen Habermas has posted Religion in the Public Sphere, which is a chapter from his new book, Between Naturalism and Religion. (HT: Solum) Here is an excerpt:
The permissibility of non-translated religious utterances in the political public sphere can be normatively justified not only in view of the fact that we must not expect Rawls’s proviso to apply to those of the faithful who cannot abstain from the political use of ‘private’ reasons without endangering their religious mode of life. For functional reasons, we should not over-hastily reduce the polyphonic complexity of public voices, either. For the liberal state has an interest in unleashing religious voices in the political public sphere, and in the political participation of religious organizations as well. It must not discourage religious persons and communities from also expressing themselves politically as such, for it cannot know whether secular society would not otherwise cut itself off from key resources for the creation of meaning and identity. Secular citizens or those of other religious persuasions can under certain circumstances learn something from religious contributions; this is, for example, the case if they recognize in the normative truth content of a religious utterance hidden intuitions of their own.
Rob
Following the Amish
I appreciate Rick's mixed feelings about the Amish's response to the horrible schoolhouse massacre, but I have a hard time seeing how their response is anything but Christ-like. Jeff Jacoby's failure to see "how the world is made a better place by assuring someone who would do terrible things to others that he will be readily forgiven afterward, even if he shows no remorse" misses the point, in my view. First, nothing I've seen in the news reports suggest that the Amish would have discouraged an effort to capture and imprison the killer if he had escaped the scene. The killer's role in this tragedy and prospects of danger to others ended with his suicide; what's left is our response to the horror of a completed act. Second, following Christ is not conditioned on its compatibility with our own societal cost-benefit analysis; Christianity is supposed to be a scandal to the world, as the Amish have proven. Third, the Amish were not, in my view, signaling a minimization of the horror of this slaughter. (And if they did, my opinion of their response would change.) As I see it, they were speaking of the person behind the horror. In the debate over gay rights, it is common to hear Christians recite the mantra, "love the sinner; hate the sin." What were the Amish doing other than loving the sinner?
Rob
Monday, October 9, 2006
The Good Company
I just returned last night from Rome, where I participated in a conference devoted to exploring "The Good Company: Catholic Social Thought and Corporate Social Responsibility in Dialogue." More than 250 scholars and professionals from around the world gathered for a conversation on CST's contribution to a deeper understanding of the corporation in society. For me, one highlight was Villanova law prof Robert Miller's presentation in which he criticized CST for unhelpfully dabbling in both deontological ethics and virtue ethics, leading (in his view) to a mish-mash of incommensurable normative principles. As a proponent of virtue ethics, he laid out his vision of the corporation as serving its end most effectively when it maximizes shareholder value. As you can imagine at a conference devoted to CST and CSR, it sparked a riveting discussion.
I presented a paper on "Moral Identity, Subsidiarity, and the Good Company," in which I suggested that, if our society values the free exercise of conscience, the frequently overlooked relational dimension of conscience compels us to maintain space for corporations to function as venues for conscience, even (especially) when they embody counter-cultural norms. (E.g., Wal-Mart refusing to sell the morning-after pill; Catholic Charities refusing to cover contraceptives for their employees and refusing to include same-sex couples as adoptive parents.) Hopefully, the paper will be suitable for posting in the near future.
Kudos to the conference organizers (including our own Mark Sargent).
Rob
Thursday, September 28, 2006
Skeel on Christian Legal Scholarship
Penn law prof David Skeel has posted a new paper, The Unbearable Lightness of Christian Legal Scholarship. Here is the abstract:
When the ascendency of a new movement leaves a visible a mark on American law, its footprints ordinarily can be traced through the pages of America's law reviews. But the influence of evangelicals and other theologically conservative Christians has been quite different. Surveying the law review literature in 1976, the year Newsweek proclaimed as the "year of the evangelical," one would not find a single scholarly legal article outlining a Christian perspective on law or any particular legal issue. Even in the 1980s and 1990s, the literature remained remarkably thin. By the 1990s, distinctively Christian scholarship had finally begun to emerge in a few areas. But even today, the scope of Christian legal scholarship is shockingly narrow for such a nationally influential movement.
This Essay argues that the strange trajectory of Christian legal scholarship can only be understood against the backdrop of the fraught relationship between religion and American higher education starting in the late nineteenth century. As the nation's modern research universities emerged in the 1860s and 1870s, leading reformers began to promote nonsectarian, scientific approaches to education. Within a few decades, these trends hardened into a hostility to religion that has not disappeared even today. But the disdain did not run in one directions only. For much of the twentieth century, American evangelicals absented themselves from American public life. The few theologically conservative Christians who remained in legal academia operated under cover, a stance reflected in the absence of Christian legal scholarship except on church-state issues and in a handful of other areas.
The first half of the Essay is devoted to this historical exegesis and to a survey of current Christian legal scholarship. The essay then shifts from a critical to a more constructive mode, from telling to showing, as I attempt to illustrate what a normative, and then a descriptive, Christian legal scholarship might look like. Normatively, I outline a Christian theory of criminal and civil liability that implies a far more limited role for the secular law than the standard "law as morality" perspective suggests. My descriptive theory begins with a puzzle; call it the Bono puzzle. In both England and the U.S., the recent debt relief campaign and related movements have deep Christian roots, but the Christian influence has manifested itself very differently on the two sides of the Atlantic. I argue that the relative lack of theologically conservative Christian enthusiasm for debt relief in the U.S. stems from evangelicals' historical distrust of activism on social issues, which dates back to the evangelical confrontation with modernity in the late nineteenth century. Only through the work of high profile norm entrepreneurs like Bono has it been possible to overcome the presumption against intervention. Although the apparent shift in the norm against intervention on social issues has focused on debt and poverty in Africa, the shift could have dramatic feedback effects on U.S. politics.
Rob
Wednesday, September 27, 2006
George's Reply on Pro-Life Democrats
Continuing our conversation on abortion and Democrats (see here, here, here, and here), Robert George writes:
I'm grateful to Rob Vischer for his posting in response to my remarks on the First Things blog regarding the obligations of pro-life voters. Rob's questions are legitimate and important ones. They cast light on the profound and even tragic dilemma in which we find ourselves as the result of the Democratic Party's support for abortion and embryo-destructive research.
I take it as axiomatic that where multiple injustices exist, our conduct as democratic citizens should be governed by careful and sober judgments regarding the gravity and scope of the various injustices. This does not presuppose the quantifiability of injustices; but it does assume that we can assess in non-mathematical (but nevertheless rational) ways the gravity of injustices and their magnitude. My own view, having tried to think through the question as carefully and soberly as possible, is that the injustices supported by the Democratic Party (though, of course, not by all Democrats) are so grave, and their magnitude is so great, that it is not reasonable to act for the sake of bringing the party into power--even assuming for the sake of argument that the Democrats have the superior (including more just; less unjust) positions on issues such as immigration, welfare, taxes, social security, and foreign policy. Obviously, the validity of my judgment here depends on the soundness of my assessments of the gravity and scope of the injustices on both sides of the equation. Pro-lifers will agree that the authorization and funding of cloning for the production of hundreds of thousands or millions of embryonic human beings to be destroyed in biomedical research would be a grave injustice and that the magnitude of this injustice would be extraordinary. Perhaps some would argue that the magnitude of the putative injustices supported by the Republican Party in other areas offsets this. That does not strike me as a reasonable position, though I would be happy to consider any argument someone has for why I'm wrong about that.
Notice that what I'm saying here does presuppose that the relevant judgments are contingent in certain ways. Rob asks some hypothetical questions that highlight this fact. There are things that President Bush and the Republicans could do that would shift my judgment. If, for example, the President were to authorize retaliatory nuclear attacks designed to kill hundreds of thousands or millions of non-combatants in Arab nations, and his Party were to support him on this, that would make the Republicans complicit in an injustice of extraordinary gravity and scope. The element of cruelty involved would add to direct killing additional dimensions of evil that are not present in the practice of embryo-destruction. One can imagine policies along these lines involving grave injustice of such a magnitude that it would render it unreasonable for Catholic and other pro-life citizens to vote to keep the Republicans in power despite the Democratic Party's gravely unjust position on cloning and embryo-killing. One of the things this shows is that a political party can advocate policies so unjust that citizens whose consciences are soundly informed cannot in reason support the party, even though the only viable alternative party is advocating policies that in other circumstances would compel the same judgment against it.
Rob raises the question whether this sort of reasoning renders issues other than abortion or (let us add) nuclear attacks on civilians "irrelevant" for Catholics and other pro-life voters. I think the answer is no. Let's say that one judges the Republican Party's policies on welfare reform, economic growth, affirmative action, and a range of of issues to be vastly superior to those of the Democratic Party. (Assume, for example, as many people believe, that Democratic policies on these issues actually harm the people they are meant to help, and the harm is substantial.) One cannot, however, support the Republicans because of their willingness (in the purely hypothetical case I discussed) to kill millions of innocent people in retaliatory nuclear attacks. Does that mean one can simply ignore the harms and injustices of Democratic policies? Not at all. One should be working to move the Democrats away from these policies and toward sounder and more just alternatives. There are many areas in which one could act, including working and voting for candidates with what one judges to be sound (or at least sounder) views across the spectrum of issues in Democratic Party primaries.
Rob asks: "Does the effect of single-issue voting actually deter the party on the wrong side of the issue, or by effectively shutting down the competition for votes on other issues, does it give license to the party on the correct side of the issue to disregard other pressing moral concerns without fear of reprisal on election day?" The issue Rob raises here is very serious. His question highlights the fact that the bad consequences that follow from a political party's enmeshing itself in a grave injustice of great magnitude can go beyond that particular injustice. This is another tragic aspect of the contemporary Democratic Party's support for abortion and embryo-destructive research. No party should be free of fear of reprisal from morally conscientious citizens on election day. I myself would like to be able to cast a vote against the Republicans to punish them for what I regard as some rather serious delinquencies. I want the Republicans to fear that voters like me will do that. It is a deeply regrettable thing that the Democrats have made it impossible for people like me to do it without contributing to a situation of extraordinary injustice against millions of victims and potential victims of abortion and embryo-destructive research.
A final word: The title of Rob's posting, for which I suspect he was not responsible, is misleading. Far from believing that it is unreasonable to be a pro-life Democrat, I have encouraged Democrats for Life. I wish them success in their efforts to reform their party and restore it to its mission of protecting the weak and vulnerable. My personal decision to leave the Democrats and work within the Republican Party---a decision that many pro-life citizens have made over the past three decades---does not reflect a judgment on my part that it is wrong or unreasonable to stay within the Democratic Party and fight for pro-life principles. People who do stay will, of course, labor under profoundly trying conditions. Pro-life Democrats such as the late Robert P. Casey (for whom I had the privilege of working as an advisor on pro-life issues) have sometimes been subjected to ridicule and abuse by those in their Party for whom support for abortion is a non-negotiable principle. Even small victories for pro-life Democrats are few and far between. Moreover, I think that in most cases they cannot rightly support the candidates of their party in general elections---precisely because those candidates aggressively support abortion and embryo-destructive research. It isn't easy being a pro-life Democrat; but I do not say it is unreasonable or wrong.
Morality & Economic Analysis
Hebrew University law profs Eyal Zamir and Barak Medina have posted a new paper, Incorporating Moral Constraints Into Economic Analysis. From the abstract:
Economic analysis of law is a powerful analytical methodology. At the same time, as a purely consequentialist approach, which determines the desirability of acts and rules solely by assessing the goodness of their outcomes, standard cost-benefit analysis (CBA) is normatively objectionable. This Article proposes to overcome this deficiency by incorporating moral constraints into CBA.
Threshold deontology differs from welfare economics and other consequentialist moral theories in recognizing the priority of such things as autonomy, human dignity, basic liberties, truth telling, and keeping one's promises over the promotion of good outcomes. It holds that there are constraints to promoting the good, such as the constraints against harming other people and lying. Unlike absolutist deontology, however, threshold deontology holds that such constraints may be overridden if enough good (or, more commonly, enough bad) is at stake. For instance, while standard CBA is likely to justify the killing of one person to save the lives of two, or the coercive harvesting of one's kidney to save the live of another person, threshold deontology would find killing a person or harvesting her organs against her will impermissible unless much more good (e.g., the lives of many more people) is at stake. The analysis demonstrates that not only foundational deontology, but also the more sophisticated defenses of consequentialism, endorse such constraints.
Larry Solum offers some thoughts here.
Rob
Tuesday, September 26, 2006
Are Pro-Life Democrats Categorically Unreasonable?
Robert George asserts that "however much one might dislike Republican policies in other areas, it’s clear that the death toll [from embryo destructive research] under the Democrats would be so large as to make it unreasonable for Catholic citizens, or citizens of any faith who oppose the taking of innocent human life, to use their votes and influence to help bring the Democratic party into power." I respect this view (and greatly respect the scholar offering it), but it raises a few questions for me:
First, is it "unreasonable" for pro-life citizens to vote for Democrats because Republicans' policies in other areas such as immigration, welfare, taxes, the environment, and foreign policy are at least arguably morally acceptable, or does the degree of harm threatened by Democrats in this single area render Republicans' policies in other areas irrelevant? For example, if President Bush expressly endorsed the torture of suspected terrorists but maintained his opposition to embryo destructive research, would reasonable pro-life citizens still be "bound to Republicans?"
Second, is it prudent (or even possible) to quantify and rank the harms threatened by the federal funding of embryo destructive research versus the harms threatened by other immoral government policies as a bright-line equation for determining a single acceptable voting option? For example, if President Bush authorized a preemptive invasion of a nation in a manner that conflicted with just war principles, should the resulting civilian casualties be tallied as harms facilitated by a citizen's support of his administration given the certainty of the casualties, even though they were not specifically intended? If tax cuts and opposition to minimum wage increases could be conclusively demonstrated to diminish the ability of certain citizens to maintain a standard of living consistent with human dignity, could the negative impact on human flourishing be entered into the equation even though it falls short of a literal destruction of human life?
Third, does the effect of single-issue voting actually deter the party on the wrong side of the issue, or by effectively shutting down the competition for votes on other issues, does it give license to the party on the correct side of the issue to disregard other pressing moral concerns without fear of reprisal on election day?
Rob
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