I appreciate Rick's and Michael's responses to my question on just war, but they lead me to rephrase my question: Can the conflict in Iraq be justified under just war principles without rendering those principles largely useless in terms of their future capacity to establish boundaries on human conflict?
In particular, it seems that the just war tradition is useful to the extent it provides (arguably) objective, ascertainable limits on the conduct of war. If the stateless forces of terrorism lead us to a shapeless understanding of just war, isn't the whole exercise futile?
Michael asks whether Iraq's failure to meet cease-fire conditions from the 1991 war may justify the 2003 invasion. I'm no expert, but that can't be right, can it? Would just war principles have been satisfied, for example, if the Allies had invaded Germany for falling behind on its WWI reparations?
Afghanistan seems a clear case where just war principles were met even in the context of terrorism: a state gave support and protection to terrorists who attacked our country and would do so again. Iraq is different: an evil regime oppressed its own people and added to the instability of an important region. But where is the imminent threat? The possibility that American lives might be lost if a certain chain of events transpires seems a questionable trade-off for the certainty that thousands of Iraqi lives will be lost.
I like Rick's reference to just war as the public dimension of "loving thy neighbor," but that understanding seems fertile ground for justifying a whole range of imperialist motives for warfare. If we substitute our conception (noble as it is) of the citizenry's well-being as a basis for invasion, haven't we fundamentally altered the just war inquiry? Maybe we should start talking openly about the morality of such wars, but it seems a stretch to bring them within the just war tradition as it currently stands. Again, though, I'm no expert, so I welcome others' views.
Two years ago Michael Novak offered this defense of the Iraq war, and it largely turns on the assumption that Saddam Hussein possessed weapons of mass destruction, and that he desired to use those weapons against the United States. There's certainly a debate as to whether the presence of WMD would satisfy just war requirements, but I'd like to clarify a different point. Can we all agree that, if the intelligence accurately revealed (what turned out to be) the absence of WMD, then the just war requirements would not have been satisfied? In other words, without a good-faith belief that WMD were present, the invasion of Iraq was immoral, right? On what other basis could the conflict in Iraq possibly be considered a just war?
Three years ago, Creighton theology prof R.R. Reno wrote In the Ruins of the Church: Sustaining Faith in an Age of Diminished Christianity, in which he argued "that Episcopalians should stay put and endure the diminishments of Christianity in our time." It seems he now has some explaining to do, since he was just received into the Catholic Church this fall. The explanation he offers ("Out of the Ruins" in the current First Things) is of particular relevance to the ongoing discussions we have on Mirror of Justice regarding the nature and possibility of Catholic legal theory. Reno explains:
Modern Christianity is modern precisely in its great desire to compensate for what it imagines to be the superannuation, impotence, and failure of apostolic Christianity with a new and improved idea, theory, or theology. The disaster is not the improving impulse. I certainly wish that all Christians would expect more from their teachers and leaders. The problem is the source of the desired improvement. For Newman, "theory" is a swear word because it connotes the ephemera of mental life, ephemera easily manipulated according to fantasy and convenience. Yet in my increasing disgruntlement [with the Episcopal Church], there I was, more loyal to my theory of staying put than to the actual place that demanded my loyalty. It was an artifact of my mind that compelled me to stay put. Unable to love the ruins of the Episcopal Church, I was forced to love my idea of loving the ruins. With this idea I tried to improve myself, after the fashion of a modern theologian.
At the Mass of reception, a non-Catholic friend asked Reno what it felt like to become a Catholic. Reno responded that it "felt like being submerged into the ocean." The ocean, of course,
needs no justification. It needs no theory to support the movement of its tides. In the end, as an Episcopalian I needed a theory to stay put, and I came to realize that a theory is a thin thread easily broken. The Catholic Church needs no theories. She is the mother of theologies; she does not need to be propped up by theologies. As Newman put it in one of his Anglican essays, "the Church of Rome preoccupies the ground." She is a given, a primary substance within the economy of denominationalism. One could rightly say that I became Catholic by default. . . . Mater ecclesia, she needed neither reasons, nor theories, nor ideas from me.
Obviously, theories constructed out of a perceived need to justify the Church are far different than theories constructed to explain the Church's relationship with secular institutions (e.g., the legal system). But I can't help but wonder if Reno's caution regarding the "easily manipulated ephemera" of theory finds support in the ease with which the Church's teaching is invoked in service of pre-existing political and legal agendas on both the "right" and the "left." As we seek to develop Catholic legal "theory," we must remember to start with the Church, allowing theory to emanate from the Church's reality, rather than starting with theory, molding the Church to fit within our preconceptions. Easier said than done, I realize.
For those who have been following the debate over the role played by children's media in the culture wars (exemplified somewhat comically by conservative complaints about Sponge Bob Square Pants), my brother has offered some thoughts over at Christianity Today.
A prominent newspaper editor in Poland has been fined for ridiculing Pope John Paul II. If authorities in Poland are serious about honoring the Pope, they may need to be reminded of the important role that free speech plays in the Church's vision of a robust civil society.
The folks at The Transatlantic Assembly have been having a provocative discussion (see here, here, and here) on whether there is an anti-Catholic bias at work in the EU.
At least for officers, the Christian Legal Society student chapter manual prohibits "homosexual conduct" (along with fornication and adultery). As such, I'm not at all confident in liberalism's ability to distinguish between the CLS and the KKK. Let's assume that the student version of the KKK condemns violence and even allows racial minorities into its ranks provided that they swear allegiance to the principle of white supremacy. On what basis would the modern university spend funds supporting one group but not the other? (A response grounded in the distinction between the person and the conduct seems a non-starter in the wake of Lawrence.)
My inclination, for what it's worth, is to let both groups in and allow the marketplace of ideas to flourish. (My answer would certainly be different for an elementary school.) Under a marketplace approach, the university should be entitled to withhold student tuition funds from groups it opposes and promote groups it embraces, but it should not deny disfavored groups meeting space or official recognition, both of which are essential to the groups' campus viability.
I share Rick's discomfort with the treatment of the Christian Legal Society at Arizona State University, and I certainly do not equate the CLS with space aliens, but the student newspaper's editorial writer is not entirely off-base. Freedom of association becomes trickier when we're talking about freedom of university-funded associations. Would we be comfortable with the KKK operating at ASU, being funded by tuition dollars, and being permitted to exclude racial and religious minorities from its ranks?
For any of us tempted to take subsidiarity for granted, perhaps a visit to Scotland is in order, as this newspaper report suggests (courtesy CT):
Labour ministers are preparing to cave in to the Catholic Church by exempting faith schools from parts of the Scottish Executive’s sexual health strategy, the Sunday Herald can reveal. . . . Critics say the measure will result in a two-tier system that bases access to contraception, abortion and information on relationships on the religious ethos of schools rather than on the needs of the child.
The move is being resisted by Jack McConnell’s LibDem coalition partners, and is delaying the publication of a policy that has been promised for five years.
The latest row was caused when a new draft of the strategy was circulated among ministers, watering down a commitment to provide the same level of sexual health services to pupils in all of Scotland’s schools.
Liberal Democrats, who had been satisfied with an earlier draft , said the change was unacceptable.
. . . .
[The former health minister] said she hopes the Executive wouldn’t be swayed by arguments most Scots rejected. She added: “The cardinal’s interventions have been very ill-judged and intemperate. It is vital that policy in this area is based on the interests of the population, rather than the narrow fundamentalism of those who shout the loudest.”
Green MSP Patrick Harvie said it would be “irresponsible” if the strategy only applied to some of Scotland’s schools. “There should be no vetoes or exemptions. If there are exemptions, then children in Catholic schools will have been failed,” he said.
Cumberland law prof David Smolin responds to my query on the right to privacy with some helpful resources:
First, there is an "originalist" theory of constitutional
privacy as an unenumerated right which has not been articulated by the
Court; this theory would be based specifically on the views of the
framers of the Fourteenth Amendment regarding slavery, the family, and
related questions. I outline some of this in the following article:
Fourteenth Amendment Unenumerated Rights Jurisprudence: An Essay in
Response to Stenberg v. Carhart, 24 Harvard Journal of Law & Public
Policy 815 (Summer 2001). More broadly, I think it is possible to
clearly separate the positive and negative strands of the doctrine: I
did this in another article: The Jurisprudence of Privacy in a
Splintered Supreme Court, 75 Marquette Law Review 975 (1992).
