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.

Friday, June 18, 2010

Bottum on the Gardner execution

Jody Bottum laments Utah's execution of Ronnie Lee Gardner:

There is, in fact, only a single reason that Ronnie Lee Gardner died last night—a single explanation that makes any sense at all. And it is that he deserved it. The murder he committed twenty-five years ago still cries to the heavens for justice.

And maybe it does. Certainly it does. But where, exactly, does the State of Utah get the authority to answer the calls on heaven? Where, exactly, does a modern nation, founded on no deliberate godly principle, derive its power to kill in the name of high justice? This is a nation, after all, that refused—with the infamous “mystery” passage in Casey v. Planned Parenthood—to protect the unborn, precisely because, the Supreme Court said, no such metaphysical foundation can be imposed by government. So where do these assertions of divinely based power for the death penalty come from?

It cannot be simply that the government is the one in power; there has surely been, sometime in the history of the world, such a thing as an illegitimate government. For that matter, there has surely been, at some point, an illegitimate claim of power by an otherwise legitimate government. The question of authority for a government’s action cannot be simply dismissed or ignored. Justice there must, and will be, for Ronnie Lee Gardner’s crimes—but political theory demands some account of why the prison system of Utah gets to enact and impose that justice.

Judging from the comments to the post, Bottum's condemnation of the death penalty is not popular among the First Things readership.  It's an interesting conversation.

Human Dignity and the Right to Life in German Law

Kai Moller has posted a fascinating new paper, The Right to Life Between Absolute and Proportional Protection.  Of particular interest (to me, anyway) was the discussion of Germany's post-9/11 law authorizing the government to shoot down an airplane likely to be used as a terrorist weapon.  The law was struck down in court as a violation of human dignity as guaranteed by Article 1(1) of the Basic Law.  Moller explains:

In German legal terminology, there is a distinction between 'inviolable' and 'untouchable,' the former meaning that the state may sometimes interfere with the object of the right, provided that it comes up with a legitimate justification, and the latter meaning that any interference will automatically amount to a violation of the right.  Human dignity, as the 'superior' value of the Basic law, is 'untouchable' . . . . The Court held that [the Aviation Security Act] violated both human dignity and the right to life in so far as it permitted the shooting down of aircrafts in situations where there were innocent persons on board.

The trick, of course, is defining "human dignity," and not surprisingly, given the implications, it has been defined narrowly (though still vaguely) in roughly Kantian terms.  An interesting read.

Thursday, June 17, 2010

The Belushi Brothers and the Church's Responsibility to the Faithful

I applaud the Church's embrace of the Blues Brothers, but the Church needs to speak with unmistakable clarity in this area and underscore that this embrace extends only to the 1980 film.  The unsuspecting Catholic might be misled by the Church's statement into renting Blues Brothers 2000, which could place the believer's very soul at risk.  More broadly, the Church should specify that while John Belushi was an artistic genius, any project to which his brother Jim is attached should be avoided at all costs.  These projects, under the soothing guise of a laugh track, suck the viewer's very notion of beauty right out of them.  I'm not sure if these matters are within the CDF's jurisdiction, but an "Index of Forbidden Sitcoms" may not be such a bad idea, and my first nominee for the list would be According to Jim

Tuesday, June 15, 2010

Fish on Tamanaha on Styles of Judging

Stanley Fish comments on Brian Tamanaha's new book, agreeing with his central argument debunking the myth of the formalist-realist divide.  This is a debate that has been central to our own discussions about the role of judges contemplated by Catholic legal theory.

Congratulations to John Garvey

Law school deans don't have much time for blogging, but Dean President Garvey is without question an honorary MoJer.  A great hire for Catholic.

Monday, June 14, 2010

Legal Ethics and Moral Character

I highly recommend a new paper, Legal Ethics and Moral Character, by Brad Wendel and Alice Woolley.  Legal ethics discourse is traditionally focused on coming up with a theory that explains and justifies the lawyer's role; Wendel and Woolley ask what a particular theory tells us about what kind of person a lawyer should be.  In other words, they're trying to expand the focus from "What should a lawyer do?" to "How should the lawyer be?"  I do not agree with every aspect of their analysis, but this is an important contribution to the debate.  (And yes, they are part of a very select group of legal ethics scholars to quote MacIntyre!)  The paper also serves as fertile ground for reflection among MoJ-ers:  would Catholic legal theory suggest an ideal lawyer who looks significantly different from the ideal lawyer who would emerge from the dominant professional paradigm(s)?  If so, in what way(s)?  

Thursday, June 10, 2010

Quote of the day

I just ran across this quote from Richard Rorty:

I do not think that Christian theism is irrational.  I entirely agree . . . that it is no more irrational than atheism.  Irrationality is not the question but rather, desirability.  The only reason I can think of for objecting to Christian theism is that a lot of Christians have been bigoted fanatics.  But of course, so have a lot of atheists. . . . Atheism is more practical only if you wish to form a pluralistic, democratic society.  In that situation, the persistence of the theist who claims to know that this or that is against God's will becomes a problem.  So atheists find themselves wishing that these groups would wither away.

(Stephen Louthan, "On Religion -- A Discussion with Richard Rorty, Alvin Plantinga, and Nicholas Wolterstorff," 27 Christian Scholar's Review 178, 183 (1996))

Tuesday, June 8, 2010

Must Knowledge Be Secular?

This week I'm participating in a St. Thomas faculty seminar titled, "Must Knowledge Be Secular?"  The seminar is being led by Notre Dame history prof Brad Gregory, and Brad is using it to try out portions of his forthcoming book, Disentangling the West: The Reformation Era and the Makings of Modernity.  The book should generate lots of conversations on MoJ and elsewhere.  He's pushing back against many of the dominant historical narratives, including the story that science's eclipse of theology was an inevitable byproduct of the nature of scientific inquiry.  Brad complicates the story -- e.g., arguing that the widespread and seemingly unresolvable disagreements about Christian doctrine during the Reformation era helped drive the trend toward the privatization of religion and the secularization of knowledge.  In order to move beyond the doctrinal disputes, the conversation retreated to a plane of "natural" reason, becoming more and more disconnected from substantive Christian claims. 

The history has opened up a range of questions within the seminar:  When a historian is open to theology, is that openness aimed simply at a better understanding of the subject, or should the openness encompass the possibility that theological claims are actually true?  What would it look like for universities (secular as well as Christian) to make space for theology (or more broadly, the transcendent)?  And should a Catholic university do more than "make space" for theology?  If so, what exactly should it look like?  In any event, Brad's work reflects the extent to which many of our current debates are shaped by the historical narratives we embrace.

Friday, May 21, 2010

Everybody Draw Muhammad Day

One consequence of the rise of radical Islamic movements is my own temptation to buy into the notion, often promoted by media coverage, that we are faced with a simple choice: embrace secularism or embrace theocracy.  If that's the choice, I'll opt for secularism, thank you very much.  That might explain my own initial "I'm smiling a little inside even though I know I shouldn't be" reaction to "Everybody Draw Muhammad Day."  I oppose censorship, and I am concerned that threats of violence are inhibiting free speech.  At the same time, I need to remember that respect for religion is not a sign of weakness but an act of strength.

Continue reading

Monday, May 17, 2010

Discrimination: How dirty a word?

I have an essay in the new Commonweal about the Christian Legal Society v. Hastings Law School case. It's only available to subscribers, but here's an excerpt:

[W]hen is discrimination “wrong?”  Is there a difference between excluding someone because she is gay or black or female and excluding them because she refuses to affirm the immorality of homosexual conduct, the supremacy of whites, or the wisdom of patriarchy?  If there is not a meaningful difference in terms of the harm to the person excluded, is there a meaningful difference in terms of the harm to the group’s shared identity posed by prohibiting such exclusions?  More broadly, when does discrimination’s “wrongness” justify state intervention?  Most Americans agree that the state should act to limit discrimination in the provision of goods that are essential to self-sufficiency – e.g., employment, housing, and education – and that the state should leave purely private groups alone  – e.g., no one is clamoring for laws that would require the neighborhood bridge club to admit racial minorities.  But many discriminatory groups are not depriving anyone of essential goods, nor are they purely private.  A student group enjoys the resources of a state university.  A religious charity seeks access to state funding in order to compete with the other charities receiving such funding.  Where exactly should the line be drawn, and what values or harms help us decide that question?

We need to talk about why diversity is valuable, equality is essential, and discrimination is corrosive to the social fabric.  Even more importantly, we need to identify the conditions under which these propositions are true.  Given the vitriol that marks our political discourse these days, it is tempting to sidestep these conversations, but we cannot pretend that concepts – even our most cherished concepts – possess talismanic properties, as though they magically justify any project to which they are attached.