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.

Tuesday, March 9, 2004

Subsidiarity and Centralization

By Rob Vischer

Prompted by Rick's post below, I read Nick Barber's paper, The Limited Modesty of Subsidiarity. I recommend it highly. Barber draws several broad distinctions between the Catholic vision of subsidiarity and the European Union's vision. The EU invokes subsidiarity as a principle governing the allocation of power among public bodies, while the Catholic model expands its focus to the allocation of all collective bodies, public and private. He points out that modern liberals will have a much easier time signing on to the EU's rather technocratic framework as compared to the value-laden vision of the Catholic model.

While most of Barber's commentary strikes me as sensible and insightful, I do disagree with his insistence that Catholic subsidiarity is neutral as to the devolution of state power. He argues that "the Catholic doctrine does not embody a preference for smaller government, or for devolving power to smaller units," but simply urges that "smaller units should get the power when they are able to exercise it properly -- there is no bias against centralisation." Certainly the Catholic model of subsidiarity does not categorically reject centralization, but I'm not sure how he can come to the conclusion that there is not even a preference for decentralization, especially in light of this foundational passage from Quadragesimo Anno (a passage he quotes, curiously):

". . . that most weighty principle, which cannot be set aside or changed, remains fixed and unshaken in social philosophy: Just as it is gravely wrong to take from individuals what they can accomplish by their own initiative and industry and give it to the community, so also it is an injustice and at the same time a grave evil and disturbance of right order to assign to a greater and higher association what lesser and subordinate organizations can do. For every social activity ought of its very nature to furnish help to the members of the body social, and never destroy and absorb them."

What is this passage, if not a preference for decentralization? Barber's comments imply that Catholic social teaching simply wants social problems to be addressed effectively, regardless of the level at which that occurs -- if a government agency can feed your kids as effectively as you can, so be it. Subsidiarity, understood in the broader context of CST, unmistakably calls for individuals and the groups to which they belong to exercise direct control over the circumstances of their existence where possible. (This is not to suggest that the call for decentralization is unfettered, for effective decentralization presupposes that individuals and their groups are empowered and equipped to help themselves, and such empowerment may require an active state role.)

Despite our disagreement on a couple of key points, Barber's essay is well worth reading, and is further confirmation that this fall's CST conference at Villanova devoted to subsidiarity should spark some intriguing and wide-ranging conversations.

Rob

Friday, March 5, 2004

Kerry as President (cont'd)

By Rob Vischer

I’m certain that I don’t have the answers to Greg’s insightful questions regarding the prospect of John Kerry as President, but his comments do raise a more fundamental question for me: Is there any Catholic politician who could get elected President without defying the Church’s teaching in certain areas?

Imagine for a moment that George W. Bush were Catholic (after all, from some of his speeches, an outsider might assume he is). On issues like taxes, labor, war, the death penalty, and the environment, don’t his administration’s policies stand in some tension with the teachings of the Church? (I have previously taken Bush the candidate to task for what I see as his one-dimensional invocation of subsidiarity. See Robert K. Vischer, Subsidiarity as a Principle of Governance: Beyond Devolution, 35 Ind. L. Rev. 103 (2001).) Granted, abortion is an area on which there’s much less wiggle room than some of the issues on which Bush comes up short, but my point is that any leader who is elevated to national prominence by either party is going to have built their candidacy on positions that defy at least some of the anthropological presumptions of Catholic social thought. Perhaps Republicans won’t have to be as overtly hostile to those presumptions in order to reassure their non-Catholic base as Democrats like Kerry are – maybe because Republicans' defiance arises on issues that are less widely identified with the Church in the popular media – but wouldn’t their defiance still have the same capacity to serve as a model that might corrode the laity’s deference toward the teaching? (For the sake of argument, I'm leaving to the side Kerry's suggestion that the pope lacks standing even to speak on these issues in the political sphere, a suggestion which I concede is beyond the pale.)

I guess my core question is this: can anyone imagine a Catholic President who would present an affirmative vision of obedience to the Church’s teaching?

Rob

Monday, March 1, 2004

Moral Anthropology in the Classroom

By Rob Vischer

The topic in my Law & Religion seminar earlier today was private schools, so I assigned the students two articles: Jim Dwyer's School Vouchers: Inviting the Public Into the Religious Square, 42 William and Mary L. Rev. 963 (2001), and co-blogger Michael Scaperlanda's Producing Trousered Apes in Dwyer's Totalitarian State (abstracted here earlier by its author). Dwyer essentially argues that the government is morally obligated to make school vouchers widely available not only to ensure that private schools receive the funding necessary for an adequate education, but also as a vehicle by which private schools may be brought under the government's regulatory control. Because parents' interest in the upbringing of their children is secondary to the children's interest in their own education, and because children cannot act on their own behalf, Dwyer insists that the state must step in whenever parents choose an educational path that falls short of the standards required to equip students with the minimum tools for self-fulfillment and individual autonomy. This includes, only by way of example, situations where religious beliefs unduly color the teaching of secular subjects, and where the curriculum teaches racial or gender bias. Religious schools are prime targets for this expanded state monitoring function.

Scaperlanda, not surprisingly, takes issue with many aspects of Dwyer's vision, including its utter disregard of intermediate communities, effective prohibition on visions of the good that might compete with any state-defined educational good, and the relativism underlying pedagogical objectives focused solely on individual autonomy. He offers instead an "education for freedom," steeped in the moral anthropology highlighted in the various posts on this weblog. Both Dwyer and Scaperlanda construct their positions with sincerity and thoughtfulness, and both articles are worth reading by anyone wishing to engage the moral anthropology as applied to education.

I was somewhat surprised that Dwyer's vision had as much traction with the students as it did. More students spoke in favor of his vision than Scaperlanda's vision. A couple of students expressed confidence that, whatever happened at school, it could be more than balanced out by the countervailing influence of the family, and thus did not see an expanded state regulatory role as much of a threat. Relatedly, several students thought Scaperlanda exaggerated the ramifications of Dwyer's vision. In their view, the educational standards offered by Dwyer are largely unobjectionable, and students placed in environments where even such minimal requirements are not satisfied cry out for state intervention. Students challenging Dwyer's vision did not focus on the marginalization of faith in the educational sphere that would accompany an expanded state oversight of private schooling. Rather, they felt threatened by the state wielding such power in the abstract, especially at the expense of families.

In most of the religious liberty contexts we have discussed in class, students have occupied a range of positions, all generally within the mainstream. While they quickly recognized that Dwyer's views are extreme, I was somewhat surprised that most of the students were sympathetic to his worries over private schooling. More broadly, the students were not at all convinced that the anthropology underlying Scaperlanda's argument was an effective rejoinder to the secularist approach to schooling in the liberal state. This may be a function of several phenomena, including the infrequency with which students are confronted with such anthropology-driven arguments, as well as the remarkably high comfort level we have with arguments founded on individual autonomy. In any event, the discussion highlighted for me the importance of making policy positions shaped by moral anthropology accessible to the broadest audience possible. Whether or not such anthropological arguments are ultimately persuasive, it's important that they are, at a minimum, familiar.

Rob

Wednesday, February 25, 2004

French Laicism and Radical Islam (cont'd)

By Rob Vischer

Yesterday I led a faculty-student forum on the French ban, and I was mildly surprised at the extent to which the students, religious and non-religious alike, took offense at the ban. (Those who defended it were outnumbered in the order of 10 to 1.) When it comes to discussing objective visions of morality, students' deeply entrenched devotion to value pluralism is a nearly insurmountable obstacle. But when it comes to issues of religious liberty, the students' worldview provides a formidable defense.

One obvious flaw in the French government's rationale was jumped on by students. Concern for religious minorities, especially Jewish students, is hardly well-served by seeking to make those students, along with the perceived instigators, invisible. Rather than embarking on an aggressive program of education or enforcement of the criminal law, France seems to be pretending that covering up religious identity will make it all go away. Obviously, religion-based persecution thrives even in the absence of religious garb. (As one student pointed out, when buses of Jewish students are pelted with rocks in Marseilles, it is highly doubtful that their yarmulkes are visible.)

In direct response to Paolo's post below, the ideology of certain Islamic extremists does not change my reaction. Such threats are best addressed through other measures. After all, if religious identity is allowed to flourish only in the absence of the majority's perception of a religion-driven threat, there's not much left to it. This goes back to my misgivings about hitching a particular conception of the moral anthropology to majority rule (below). It's entirely foreseeable that some jurisdictions would perceive certain Christian fundamentalist or Catholic groups as divisive and threatening to the social order, just as immigrant Muslims are perceived as threats in France today. If we justify the erasure of religious identity in France today, what is the limiting principle to foreclose its expansion tomorrow?

Rob

Monday, February 23, 2004

Conference on Religious Values and Corporate Decision-Making

By Rob Vischer

Earlier today I attended Fordham Law School’s Conference on Religious Values and Corporate Decision Making, put together by co-blogger Amy Uelman. The first panel was an all-star lineup of Russ Pearce, Brad Wendel, Steven Resnicoff, and our own Mark Sargent. They tackled the question, “Does Corporate Decision-Making Allow Room for Religious Values?”

A couple of themes might be of special interest to readers of this weblog:

First, Dean Sargent looked at lawyers’ moral complicity in the corporate scandals of recent times, emphasizing that the moral consciousness of lawyers must be understood sociologically. Building on the thesis of Robert Jackall's Moral Mazes, he argued that the social context of a corporation drives lawyers (and others) to pursue their own self-interest through the prevailing rules of the game, bracketing their own moral codes in the process. The dominant ethos of the corporation is pragmatism, with questions of right and wrong relegated to the sidelines, and, I think Mark would conclude, this ethos was responsible for the scandals much more than the lack of a personal moral code on the part of the primary corporate decision-makers.

Second, Professor Wendel expressed misgivings about the injection of religious values into corporate decision-making, taking a Rawlsian approach to the corporate context. Like the state, he identifies the corporation as an institution with a pressing need for coordinated action, and thus it must justify its action through widely agreeable reasoning. In response to (my) questioning, though, he clarified that, to the extent religious values are brought to bear on corporate decision-making in a transparent manner, there is no danger of coercion, as the investor can take her money elsewhere. In this regard, he would not see a problem with the explicit and open embrace of religious values by corporate decision-makers. Since Wendel seems to have been the designated naysayer on the panel, perhaps the gap between those who see a role for religious values in the corporation and those who do not is not so wide.

Or perhaps those who object to religion's entry into the corporate sphere see no reason to participate in a conference devoted to such a topic. I'm not familiar enough with the area to know what their argument would be. Provided that religious values are brought to bear in a transparent fashion, what is the objection to their entry? I can see why religious values may be inefficient or otherwise ill-suited to the corporate context, but is there any good-faith basis for precluding them categorically?

Rob

Tuesday, February 17, 2004

Legislation, objective morality, and majority rule

By Rob Vischer

Mike points out that it is up to the prudential judgment of the legislator whether or not to restrict behavior based on objective morality. I want to raise a related, but more skeptical line of inquiry: Given that the discernment of morality in the legislative realm is inherently driven by majority rule, shouldn’t that make Catholics leery of appealing to the legislature to adopt a morality-based conception of the common good where such adoption would limit others' ability to pursue contrary conceptions of the good? For those who believe in the moral anthropology’s objective truth, to what extent should their efforts be aimed at persuading their fellow citizens of this truth, as opposed to persuading the legislature to require their fellow citizens to abide by this anthropology whether or not they believe it to be true? Put more particularly, are American Catholics well-served in seeking top-down implementation of the common good on contested moral issues?

Certainly legislation always reflects some sort of moral vision, usually cast in terms of the avoidance of harm. Where the harm's existence is discernible only through the lens of disputed anthropological presumptions, though, legislative initiatives seem more problematic to me. When Catholics ask the legislature to adopt and enforce a particular conception of the common good, my concern is with what happens when the majority’s view of the common good no longer comports with the moral anthropology or perhaps even intrudes on Catholics’ own ability to act consistently with the moral anthropology. In Western Europe, we see that conceptions of the common good are largely up to majority vote. One recent outcome is France’s ban on religious garb in public schools.

So if America is perpetually doomed to follow Europe’s trends, is there an argument that Catholics’ own self-interest compels them, for example, to support, at least instrumentally, the Supreme Court’s morally agnostic reasoning in Lawrence v. Texas? If the majority’s conception of the common good is imposed on gays, what is to prevent a contrary conception from being imposed on Catholics in the future? (After Employment Div. v Smith, I’m not sure the Free Exercise Clause provides an easy answer.) We already see states requiring Catholic employers to cover prescription contraceptives and Catholic health providers to offer abortions. In states adopting school voucher programs, we’ll undoubtedly see a greater effort to secularize Catholic schools. It’s widely agreed among Catholics that they should try to carve out rights-based enclaves from the imposition of the majority’s conception of the common good in these areas, but shouldn’t Catholics be equally hesitant to impose their conception of the common good in areas where the majority’s view currently comports with the moral anthropology? Does the rapidly changing moral landscape suggest that our legislative agenda should reflect a robust moral pluralism, leaving the ultimate questions of the good (and corresponding conduct) to the marketplace of ideas, rather than the trump of government dictates?

Rob

Wednesday, February 11, 2004

Anthropology vs. Action: the Political Dimension

By Rob Vischer

From my reading of their February 10 posts below, Vince emphasizes the need to do justice even if it requires us to join forces with those who do not share (and are unlikely ever to share) our Christian anthropology, and Rick (as well as Mike) emphasizes the need to identify underlying anthropological assumptions before we can adequately grasp what course of action is just. Does this divergence in emphases also underlie the political split between left-leaning and right-leaning Catholics?

As argued in a recent column by Peggy Noonan, President Bush (and conservatives generally) are inclined more toward philosophy than policy. In a sense, Bush’s worldview takes precedence over the particulars of government programs and initiatives. Senator Kerry, by contrast, ticks off policy proposals with a smoothness that Bush can only dream of, but he’s much fuzzier regarding a motivating philosophy, other than trumpeting the familiar individualist themes of liberalism.

Perhaps Catholics who are drawn to Kerry tend to downplay his elusive moral anthropology – which seems largely devoted to individual autonomy – because he promises action in a lot of venues where justice can be furthered. By contrast, perhaps Catholics who are drawn to Bush tend to focus on his big-picture anthropology-laden statements extolling the virtues of subsidiarity, the sanctity of life, etc. In focusing on the appeal of his articulated anthropology, are they holding their noses as to the actions emanating from the more conservative side of his compassionate conservatism? The rich-friendly tax cuts, relaxed environmental stewardship, and questionable interpretation of the just war tradition are examples of areas where a Catholic focused first on action may find supporting Bush to be untenable. But a Catholic focused first on anthropological assumptions may find supporting Bush unavoidable when they hear the Democratic candidates pandering before NARAL, for example, even if Bush’s strikingly different anthropology is unlikely to result in much concrete action in that particular context – i.e., the chances of overturning Roe remain small.

So does the Republican wing of the Catholic Church tend to emphasize anthropology first, action second, while the Democratic wing tends to emphasize action first, anthropology second?

These comments are deliberately provocative, of course, and I don’t mean to open up a full-scale political debate. I also realize that the likely response will insist that action and anthropological assumptions are inextricably linked, and I agree. But isn’t the ordering of these concepts highly relevant when it comes to a Catholic’s choice between Kerry and Bush?

Rob

Friday, February 6, 2004

Moral Anthropology and the Practice of Law

By Rob Vischer

Rick raises a foundational concept for this weblog, for Catholic moral anthropology speaks not only to our understanding of law as an external object of study, but for those of us who are lawyers, to our understanding of a life within the law. It is certainly out of fashion to bring a transcendent understanding of the human person into the public sphere, whether in political life or legal practice, but that is precisely the guidance given by the Congregation for the Doctrine of Faith in its Doctrinal Note on Some Questions Regarding the Participation of Catholics in Political Life. Such pronouncements are prone to caricature, so I thought it might be helpful to clarify the relevance of moral anthropology to a life in the law by highlighting the distinction drawn by the CDF between religious and moral truth in the decision-making of public actors – politicians and lawyers alike.

Observing the nature of liberal political discourse, the CDF notes that “citizens claim complete autonomy with regard to their moral choices, and lawmakers maintain that they are respecting this freedom of choice by enacting laws which ignore the principles of natural ethics and yield to ephemeral cultural and moral trends, as if every possible outlook on life were of equal value.” Catholics and other like-minded citizens are reminded to contest the “falsehood of relativism, and with it, the notion that there is no moral law rooted in the nature of the human person.”

Discerning the content of this moral law must begin by recognizing that it is not a freestanding or random collection of prohibitions, but, as indicated in Rick’s post, a comprehensive worldview that emanates from “a correct understanding of the human person.” As such, Catholic lawyers, even when entering into the secular sphere of law, are bound by certain “fundamental and inalienable ethical demands,” including demands to “defend the basic right to life from conception to natural death,” to safeguard and promote the family “in the face of modern laws on divorce,” to ensure “the freedom of parents regarding the education of their children,” to protect minors and combat “modern forms of slavery” such as drug abuse and prostitution, to contest for religious freedom and the development of an economy “that is at the service of the human person and of the common good,” to help implement the principles of solidarity and subsidiarity, and to pursue peace.

But apart from these core values, the CDF does not presume that every lawyer or politician will reach the same conclusions as to the real-world ramifications of this moral anthropology. Noting that “a plurality of methodologies reflective of different sensibilities and cultures can be legitimate in approaching such questions,” the significant limitation is that “no Catholic can appeal to the principle of pluralism or to the autonomy of lay involvement in political life to support policies affecting the common good which compromise or undermine” such anthropological demands.

Crucially, in the CDF’s view, the non-negotiability of these ethical demands does not represent the illegitimate intrusion of religious dogma into the secular domain. Emphasizing that “such ethical precepts are rooted in human nature itself and belong to the natural moral law,” the CDF explains that “[t]hey do not require from those who defend them the profession of the Christian faith.” This is a necessary characteristic given “the rightful autonomy of the political or civil sphere from that of religion and the Church – but not from that of morality.”

So the moral precepts binding on the Catholic lawyer in all aspects of her identity are not coextensive with the tenets of her faith, and she need not feel compelled to mirror every nuance of her own religious beliefs in the means or ends chosen by her client. In this sense, the CDF espouses a limited value pluralism. There is no pluralism “in the choice of moral principles or essential values,” but there is a “legitimate plurality of temporal options” given the “variety of strategies available for accomplishing or guaranteeing the same fundamental value, the possibility of different interpretations of the basic principles of political theory, and the technical complexity of many political problems.” There is also, of course, a plurality of religious values in the political sphere, a plurality safeguarded by the inalienable moral right to religious liberty and freedom of conscience. This aspect of pluralism does not slide into relativism because it “is based on the ontological dignity of the human person and not on a non-existent equality among religions or cultural systems of human creation.”

Certainly the CDF has not ended the debate over how best to integrate this moral anthropology with the performance of a public function in a liberal democracy, but it has underscored that the integration is a non-negotiable endeavor for those who take seriously this conception of the human person.

Rob Vischer

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