Several weeks ago, Rick asked the question, "Is Christian Jurisprudence possible?" One surprising source of insight might be the work of George Orwell, at least in terms of his skepticism toward modern humanity's devotion to overarching normative theories of society. In an article entitled "Orwell for Christians" in the current First Things, Paul Griffiths explains:
[Orwell] was, from a Christian point of view, a self-tortured pagan whose moral vision was unusually clear. From a reading or rereading of him at the beginning of the third millenium Christians can learn how easy it is to justify atrocity by misplaced theory, whether in politics or ethics. Many Christians in Europe in the 1930s and '40s (Catholics in Spain and Italy; Protestants and Catholics alike in Germany) permitted themselves to connive at or endorse atrocity because of the seductions of theory. Orwell reminds us of the first thing to do when you're faced with actions or recommendations to actions that are malum in se: don't theorize; actively resist and speak out. He reminds us, too, that most of us have an uneasy grasp of theoretical argument, much more uneasy than our grasp upon our moral responses to what we are faced with. . . .
Arguing with people whose consciences and perceptions are deeply malformed can do no good, for the difficulty isn't at the conceptual level. Argument about such matters as whether torture is always wrong, whether genocide is an acceptable instrument of foreign policy, whether state-authorized killing has justifications beyond the protection of the innocent, whether killing babies in utero is defensible and so on, is not only useless, however. It is also dangerous because it will typically seem to take seriously a corrupt standpoint. The virtue we can learn from Orwell is to see the power of language to depict and of thought to grasp the meaning of what is depicted, and to strive to use language in such a way that it more fully realizes that power.
This virtue is not much in evidence in American political or literary life today, and the passionate divisions among those on the left and right trying to expropriate Orwell for their own use almost all show precisely the kind of slavery to their own smelly little political orthodoxies that Orwell encouraged us to see through. If we can see through them with a clear eye, we will see what he saw, which is that the field of human history and human political effort is a potter's field, a field of blood. Every step we take is on ground saturated with the blood of the slaughtered. That has not changed since Orwell's time, and we can benefit from paying close attention to his lesson, which is that a sure way to increase the flow of that blood is to think ourselves in possession of a sure and complete means to stanch it. To act on such a conviction is to sacrifice the present to an imaginary future, and it is among Orwell's principal virtues that he presses that truth upon us. It should not be a hard lesson for Christians to learn, for it is written into the text of our tradition, too.
I don't read this as suggesting that the development of Christian legal theory is impossible or imprudent, but that it is necessarily different. Much of this difference, in my view, will flow from the humility with which Christian theorists approach their work.
Rob
Evangelical Outpost has an interesting take on the deafening silence that has met the announcement that hospitals in the Netherlands have officially embraced infant euthanasia:
I must admit that the most surprising aspect of this story is that people find the practice of euthanasia surprising. For the past thirty years almost all Western nations have embraced some form of abortion and in doing so have accepted the premise that human life in not intrinsically valuable. The shift from abortion to active euthanasia of infants does not require tumbling down the slippery slope; it merely requires people to act consistently with their views.
Rob
Wednesday, December 1, 2004
The Catholic Lawyer has been a student-edited journal here at St. John's since 1955, but we've been making a concerted effort recently to turn it into more of a faculty-driven journal. Judging from the issue that has just been published, our efforts are paying off. Articles include:
- Abortion, Bishops, Eucharist, and Politicians: A Question of Communion by Greg Sisk and Charles Reid;
- The Spirituality of Communion: A Resource for Dialogue with Catholics in Public Life by Amy Uelman;
- Born Again on Death Row: Retribution, Remorse and Religion by Michael Simons;
- Finding Marriage Amidst a Sea of Confusion: A Precursor to Considering the Public Purposes of Marriage by Randy Lee; and
- Taking Liberalism and Religious Liberty Seriously: Shifting Our Notion of Toleration from Locke to Mill by James Beattie.
Our next issue will include articles by Michael Perry and Mark Sargent, as well as a symposium titled "Religious Education and the Liberal State," featuring contributions from James Dwyer, David Smolin, Michael Broyde, Michael Scaperlanda, and Asma Afsaruddin.
Manuscripts are always welcome, and will be reviewed by faculty (me). Annual subscriptions are currently only $12.50, so make sure you subscribe soon before the administration realizes what a bargain this is.
Rob
Tuesday, November 30, 2004
I appreciate Rick's misgivings about my embrace of the Third Circuit's Solomon Amendment ruling, but his misgivings generate even deeper misgivings of my own. First, I agree that most law school faculties are not exactly bulwarks guarding against the collective imposition of contested moral norms -- on the contrary, they often function as the vanguard of the collective imposition itself. Nevertheless, I'm happy to welcome their support of subsidiarity whenever I can get it, even if it is unintentional or piecemeal. Whatever else the legal academy stands for, this case is a valuable implementation of subsidiarity.
Second, I agree that government funding can change the subsidiarity analysis, but it can't foreclose the analysis entirely. Especially in areas like education and health care, where government funds are a non-negotiable element of market viability, allowing funding to trump divergent messages and identities will eviscerate subsidiarity. If we're willing to allow the government to use its money to trump a law school's defiance of the military's policy on gays, are we also willing to allow the government to pull its funds from hospitals that refuse to perform abortions? I don't claim to have an easy answer -- indeed, I believe that the government should be empowered to promote or discourage certain messages, and the most obvious tool for doing so is its provision of funds. But if funding can justify otherwise unacceptable top-down impositions of contested moral norms across the board, I'm afraid we've created an exception that will swallow subsidiarity's (already tenuous) rule.
Rob
The Third Circuit has issued an interesting ruling prohibiting the federal government from enforcing the Solomon Amendment (which barred the federal government from providing funds to schools that obstructed military recruiting). Writing for the majority, Judge Thomas Ambro relied on the U.S. Supreme Court's 2000 decision in Boy Scouts of America v. Dale, in which the Court held that the Boy Scouts could not be legally required to accept an openly gay scoutmaster:
"Just as the Boy Scouts believed that 'homosexual conduct is inconsistent with the Scout Oath,' the law schools believe that employment discrimination is inconsistent with their commitment to justice and fairness," Ambro wrote.
"Just as the Boy Scouts maintained that 'homosexuals do not provide a role model consistent with the expectations of scouting families,' the law schools maintain that military recruiters engaging in exclusionary hiring 'do not provide a role model consistent with the expectations of,' their students and the legal community," Ambro wrote.
Likewise, Ambro said, while the Boy Scouts argued that they were aiming to "inculcate [youth] with the Boy Scouts' values -- both expressively and by example," the law schools, too, say they are aiming to "inculcate their students with their chosen values by expression and example in the promulgation and enforcement of their nondiscrimination policies."
Ambro noted that, in Dale, the justices held that an openly gay man's presence in the Boy Scouts "would, at the very least, force the organization to send a message, both to youth members and the world, that the Boy Scouts accept homosexual conduct as a legitimate form of behavior."
Likewise, Ambro said, "the presence of military recruiters would, at the very least, force the law schools to send a message, both to students and the legal community, that the law schools 'accept' employment discrimination 'as a legitimate form of behavior.'"
Regardless of one's view of the Boy Scouts' policy, Dale should be applauded as an essential judicial support for the principle of subsidiarity; similarly, regardless of one's view of the legal academy's stance toward the military, it seems that the Third Circuit's ruling should be similarly embraced. Law schools, just like the Boy Scouts, are functioning as subversive wrenches in the top-down enforcement of contested moral norms.
Rob
Monday, November 29, 2004
According to a new CBS poll, only 16% of Americans believe that a pharmacist who opposes birth control should be able to refuse to sell birth control pills. Among Catholics, the number increases to a whopping 21%. The question ("Should pharmacists opposed to birth control be able to refuse to sell birth control pills?") is imprecise enough that it's unclear whether respondents were indicating their opposition to affirmative statutory protection for such exercises of conscience (precluding employment termination, etc.) or whether they actually mean that pharmacists should be legally required to dispense the pills. The difference is key, from a subsidiarity perspective. It's one thing to say that an individual pharmacist should have immunity from any negative repercussions when they defy the policy of the company that employs them (protecting conscience as a matter of individual empowerment); it's quite another to say that all pharmacists everywhere should be required by law to offer all services not prohibited by law, regardless of how morally objectionable those services might be (trumping conscience as a collective mandate). In any event, the poll numbers are an indication of how firmly grounded consumer autonomy is in modern Americans' understanding of social order. (Thanks to CT for the lead.)
Rob
Sunday, November 28, 2004
Here's a fairly disturbing update on prospects for embryonic stem cell research in California. The lieutenant governor enthusiastically embraces it as "this century's Gold Rush." Indeed, according to the New York Times, the initative approved by voters creates
the California Institute for Regenerative Medicine, which will dole out roughly $300 million a year for 10 years in grants and loans to public and private entities pursuing stem cell studies. Final authority rests with the oversight panel, which will include representatives from most of the state's major medical schools, members of nonprofit research institutes, executives of commercial biotechnology firms and public members who are advocates for research in a range of diseases.
The San Diego Union-Tribune characterizes the initiative as assigning
the governor, several constitutional officers and administrators of the University of California system to select the Independent Citizens Oversight Committee, which will supervise the institute. It also lays out the specific qualifications of the nonsalaried committee members, ensuring that there will be a mix of research scientists used to administering millions of dollars in grant money, business people and members of patient-advocate groups.
Conspicuously absent from either of these summaries of the "oversight panel" is any indication that the panel will include folks who might be inclined to exercise any meaningful degree of moral oversight. Maybe it is too much to expect them to muddy the clear waters of boundless scientific progress by injecting a naysaying religious voice, but how about some sort of religion-free ethicist? A philosopher? A medical ethicist? Gosh, even someone who once taught a business ethics course at the local community college would be preferable to a lineup of folks predisposed simply to facilitate widespread bellying up to the publicly-financed trough. (The San Fran Chronicle reports one critic's complaint that the panel "will be made up entirely of people who will stand to benefit from the research.") The panel's first member indicated that he and his colleagues will need to ensure that "the most appropriate infrastructure is put into place, the best science supported and the best people brought into this field." Simple enough. Good science by good scientists. What possibly could go wrong?
Has the voters' resounding approval (59% to 41%) of the initiative been equated with a collective judgment that ongoing embryonic stem cell research will pose no dilemmas on which morality-driven conversations might be appropriate? I'm happy to be corrected if, as a non-Californian, I'm missing out on some relevant aspect of the oversight panel, and I'd love to learn how the system will make room for moral engagement and discernment. Absent such capacity, it seems that "Gold Rush" is even more apt than the lieutenant governor knew.
Rob
