I rarely sit down and go through an entire law review issue, but I highly recommend reading the recent Pepperdine Law Review issue devoted to the school's recent conference, "Is There a Higher Law? Does It Matter?" The issue includes many strong papers, including particularly interesting ones by (MoJer) Patrick Brennan, Albert Alschuler, and Bill Brewbaker, but I was especially struck by Peter Gabel's "Critical Legal Studies as a Spiritual Practice." The "crits" are often subject to caricature, which is to be expected, I suppose, when a school of thought has built itself by painting caricatures of other schools of thought. Gabel, one of the founders of CLS, writes a very helpful explanation and defense of the movement. He writes that, "while appeals to a Higher Law certainly can be used to rationalize unjust power relations, I do not believe that they must do so; and even more . . . I believe CLS was always fundamentally a spiritual enterprise that sought to liberate law and legal interpretation from its self-referential, circular, and ideological shackles."
As Gabel portrays it, there is actually a great deal of synergy between CLS and the Catholic legal theory project. The indeterminacy critique of law, for example, is "basically a bummer" that leaves "the listener in a kind of secular liberal hell of scattered and disconnected individuals with no common passion or direction binding us together." This flaw helped unravel the movement because:
Not only did this erasure of moral purpose disarm the CLS movement of its most compelling spiritual feature -- namely its link to a powerful, transformative vision of a socially just world -- it also seemed to dismiss as unimportant, and even trivial and misguided, the experience of moral dislocation, social isolation, and meaningless that is precisely the most spiritually painful aspect of modern liberal culture.
Consider this vision of a CLS course in Contracts:
[The course] should subordinate its use of the indeterminacy critique to a meaning-centered critique emphasizing how the rules presupposing the legitimacy and desirability of individualistic, self-interested bargains . . . among an infinite number of socially disconnected strangers bound by no common moral purpose or spiritually bonded social community outside their respective blood relatives are rapidly destroying the planet, in part, by making use of liberal abstractions like freedom of choice that make it appear that this lonely destiny is what people really want.
What CLS must aim for, in Gabel's view, is "a new spiritual activism actively connecting Self and Other." I think the Catholic legal theory project is better equipped to provide substance to the bonds connecting Self and Other, but in terms of orientation, it sounds like CLS and CLT are, if not kindred spirits, at least spirits sharing many of the same concerns about law. Thoughts?
The fact that I'm posting this will reveal me as someone who occasionally frequently consults the Drudge Report, but it's worth it to bring attention to one of the saddest news reports I've read in a long time, though given current views on sex, perhaps this development doesn't represent much of a change.
Sad quote:"The dark-haired, negligee-clad robot said 'I love holding hands with you' when it sensed that its creator touched its hand."
Even sadder quote: "[Artificial intelligence expert] David Levy argues that robots will become significant sexual partners for humans, answering needs that other people are unable or unwilling to satisfy."
I returned yesterday from New Orleans, where I heard several challenging and provocative papers that should be of interest to anyone involved in the Catholic legal theory project (I'm thinking of presentations by Zachary Calo and Eric Claeys in particular), but those can be poked and prodded at a later date. The highlight of the trip for me was an afternoon spent driving through various neighborhoods with an old college friend who's a New Orleans native. This was my first trip back to the city since Katrina, and it was amazing to see firsthand the immense scope of destruction that remains. I've tried -- with limited success, I'm afraid -- to apply CST principles, particularly subsidiarity, to the Katrina recovery in the past, and my visit has underscored how complicated the situations is, and how difficult a "bottom up" or grass-roots recovery can be with destruction occurring on such a wide scale. In city block after city block, you see two or three rebuilt homes surrounded by a sea of empty shells or, in many cases, cement slabs where a house used to stand. A handful of residents have returned to their neighborhood, but since it's only a handful, it's not really a neighborhood. A city with half the population needs to shrink its footprint or face enormous problems with infrastructure, city services, and (I think) a sense of community. The footprint of New Orleans is apparently not going to shrink, but the population has dramatically shrunk. (My visit also reminded me of how much aesthetics matter to our daily experience. The neighborhood around my alma mater used to be filled with trees. Most of the trees are gone now after standing in salt water.) Individual property rights are a hallmark of Western law (as well they should be), and localized empowerment is a hallmark of CST (as well it should be). Katrina has presented a challenge for both.
Monday, January 4, 2010
I'm always curious to see how scholars articulate (or fail to articulate) what "human dignity" means, especially in non-religious contexts, and to figure out what work the concept is doing for them. Markus Dubber has posted a short essay on dignity in penal law. Here's an excerpt:
American penality continues to operate as an exercise of the sovereign’s “police power,” which regards the objects of governance as human resources within the state household, rather than as persons defined by their capacity for self-government, or autonomy. Dignity, properly defined, is personal—rather than social—dignity, which is owed persons qua persons. Insofar as autonomy is the fundamental principle of legitimacy of a liberal democratic state, in the United States and elsewhere, a system of penal law is only legitimate if it always also regards its objects as legal subjects, i.e., as persons who possess the capacity for autonomy and, therefore, dignity.
Equating dignity with the capacity for autonomy is hardly unusual (at least since Kant), but I'm more interested in the sharp distinction between "personal dignity" and "social dignity." If Prof. Dubber is definining "social" as "collective," then I see the need for the distinction, but if "social" is equivalent to "relational," then I'm not so sure. The more I think about human dignity, the less comfortable I am defining it without reference to human relationships, especially in an area such as criminal law.
Peggy Noonan looks back at the failures of the past decade as examples of institutions forgetting their missions, foremost among these the Catholic Church:
The Catholic Church, as great and constructive an institution as ever existed in our country, educating the children of immigrants and healing the weak in hospitals, also acted as if it had forgotten the mission. Their mission was to be Christ's church in the world, to stand for the weak. Many fulfilled it, and still do, but the Boston Globe in 2003 revealed the extent to which church leaders allowed the abuse of the weak and needy, and then covered it up.
It was a decades-long story; it only became famous in the '00s. But it was in its way the most harmful forgetting of a mission of all, for it is the church that has historically given a first home to America's immigrants, and made them Americans. Its reputation, its high standing, mattered to our country. Its loss of reputation damaged it. And it happened in part because priests and bishops forgot they were servants of a great institution, and came to think the great church existed to meet their needs.
I wonder whether a similar indictment can be leveled against American law schools, including Catholic law schools. Has the modern law professor shown a tendency to think that the law school exists to meet his or her needs? Have we let the reflected glory of the US News rankings become our raison d'etre, overlooking debt-laden students and minimizing the role we should be playing in their personal and professional formation?
Sunday, January 3, 2010
We shouldn't let this occasion pass without notice on MoJ: Peter Steinfels wrote his last Beliefs column on Friday. I cannot help but wonder if this leaves a void that the Times will not feel any particular pressure to fill. Read comments from America here and Get Religion here.
Wednesday, December 16, 2009
As part of our ongoing conversation about George Weigel's recent column on the "presumption against war" in the Catholic just war tradition (for other posts in this thread, read this, this, and this), Christopher Dodson comments:
I am certainly no expert on the church’s just war teaching or its historical manifestations through the centuries. However, upon reflecting on Weigel’s column two thoughts come to mind that might contribute to the discussion.
First, Weigel appears to conclude that a presumption against war does not exist because it does not expressly appear in the traditional manifestations of the just war teaching. Just because it does not appear in those cases, however, does not mean that it does not exist or could not exist In this respect, Weigel makes the same error he made in his response to Caritas in Veritate. He fails to look at Catholic social teaching as a whole. Specifically, he fails to interpret individual portions of the teaching, such as the just war tradition, in light of the whole Ironically, Weigel missed this very point in Caritas in Veritate.:
In this sense, clarity is not served by certain abstract subdivisions of the Church's social doctrine, which apply categories to Papal social teaching that are extraneous to it. It is not a case of two typologies of social doctrine, one pre-conciliar and one post-conciliar, differing from one another: on the contrary, there is a single teaching, consistent and at the same time ever new. It is one thing to draw attention to the particular characteristics of one Encyclical or another, of the teaching of one Pope or another, but quite another to lose sight of the coherence of the overall doctrinal corpus. (No. 12)
The civil law principle of in pari materia is helpful here. Just as statutes should be construed, if possible, so as to harmonize, and to give force and effect to the provisions of each, expressions of Catholic social teaching - indeed, all Catholic teaching - should be read and interpreted with a view toward the whole and with a view toward harmonizing and giving all parts the same force and effect.
Therefore, rather than viewing the just war tradition in isolation, it should be interpreted so as to harmonize with the entire teaching of the church. As already noted in some of the posts, there is support for the presumption against war in the Compendium, scripture, and elsewhere.
Second, Weigel argues that the just war teaching begins with “legitimate public authority’s moral obligation to defend the common good by defending the peace composed of justice, security, and freedom.” That is essentially the same basis for the state’s use of the death penalty. However, as Evangelium Vitae and the Catechism make clear, those obligations of the state do not exist in isolation. We are instructed that if “non-lethal means are sufficient to defend and protect people's safety from the aggressor, authority will limit itself to such means as these are more in keeping with the concrete conditions of the common good and more in conformity to the dignity of the human person.” (emphasis added.)
Thankfully, the Catechism points us in the direction of understanding why the “hurdle” - to use Weigel’s words - exists with regards to use of the death penalty. It’s purpose is to conform to the dignity of the human person and the common good. In practice, this is a presumption against the use of the death penalty.
Following Weigel’s logic, if the explanatory clause was not there, we would have no reason to conclude that a presumption against the use of the death penalty exists. He would, however, be wrong. Like the hurdles in the just war tradition, the hurdle for using the death penalty does not exist in isolation and without reason. We would have to discover it’s reason by interpreting the hurdle with a view toward harmonizing it with the entire teaching of the church.
Tuesday, December 15, 2009
Yesterday I wondered whether George Weigel is correct in insisting that the Catholic just war tradition does not (and should not) include a "presumption against war." Jonathan Watson points out James Turner Johnson's article on just war theory, including this excerpt:
The idea that Catholic just war teaching begins with a “presumption against war,” more recently phrased as “a strong presumption against the use of force,” first appears in the United States bishops’ widely read 1983 pastoral letter, The Challenge of Peace. In the context of its original adoption, this conception had three important roots. First, it reflected a judgment about modern warfare as inherently grossly destructive, so much so that it could never be conducted morally or be an instrument of moral purpose. In the immediate context of The Challenge of Peace this conviction was focused specifically on the question of nuclear weapons and whether they might ever be morally used; the United States bishops’ answer was No, and in this they concurred with a wide range of opponents of nuclear weapons around the world. Though in certain ways this pastoral letter drew on the thought of Paul Ramsey, the statement (without mentioning him by name) explicitly rejected Ramsey’s conception that even in the case of nuclear weapons the key issue is human moral control: Ramsey argued for the possibility of a rational, politically purposive use of nuclear weapons—namely, counter-force warfare—while the U.S. bishops rejected any and all possible “war-fighting” uses and plans for use of such weapons. Their conclusions about the likely result of any war involving nuclear weapons mirrored Jonathan Schell’s contemporaneous image of global nuclear destruction and the end of human life: a “republic of insects and grasses,” as he famously put it in The Fate of the Earth."
And Alabama 3L Abe Delnore comments:
I think that George Weigel's problem, fundamentally, is that he thinks just war is the only intellectual tradition on war within Catholic teaching. In fact there is an older, better-attested rival tradition: pacifism. The presumption against war makes sense if you see just war as a response to pacifism, which of course is how it developed. Furthermore, every presentation of just war I can think of begins with the premise that killing is wrong; however, just war provides an exception to the general rule. So there is a good case for the presumption against war underlying even just war theory. And, of course, Catholics also have access to the pacifist tradition. (Indeed, I think I am right in saying that some Catholics--members of particular religious orders--are obliged to be pacifists; none are obliged to accept just war theory.)
