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.

Monday, December 14, 2009

Is a presumption against war inconsistent with just war tradition?

Commenting on President Obama's Nobel Peace Prize acceptance speech, George Weigel laments what he sees as the decline of an authentic just war tradition in our popular discourse.  He is especially concerned that a presumption against war seems to have taken root among those purporting to apply the just war tradition.  Weigel writes:

So the notion that just-war analysis begins with a “presumption against war” (or, as some put it, with a “pacifist premise”) is simply wrong. The just-war way of thinking begins somewhere else: with legitimate public authority’s moral obligation to defend the common good by defending the peace composed of justice, security, and freedom. The just-war tradition is not a set of hurdles that moral philosophers, theologians, and clergy set before statesmen. It is a framework for collaborative deliberation about the basic aims of legitimate government as it engages hostile regimes and networks in the world.

Given his outspoken defense of the invasion of Iraq, I take George Weigel's interpretation of the just war tradition with a huge grain of salt.  That said, he knows a lot more about the subject than I do.  If a "presumption against war" is inconsistent with the Catholic intellectual tradition regarding war, then has the Vatican also lost touch with the tradition?  It seems that a presumption against war is an obvious theme in statements by all of the post-WWII popes.  Or check out various statements in the Compendium of the Social Doctrine of the Church -- e.g., para. 437 (calling for "the rejection of war as a means for resolving disputes"), para. 438 ("rejection of war"), para. 501 ("engaging in a preventive war without clear proof that an attack is imminent cannot fail to raise serious moral and juridicial questions").  Are they wrong?  In past centuries -- when wars were limited and did not threaten the very existence of humanity -- perhaps there was no presumption against war.  But I have a hard time supporting the suggestion that, in the 21st century, any moral or religious framework designed to facilitate serious thinking about war and the human condition should not include a presumption against war.

The Real Inconvenient Truth

A Canadian journalist writes that debates about cap-and-trade subsidies, wind farms, and climate science are really missing the point: what the world needs desperately is to adopt China's one child policy.  According to Diane Francis of The Financial Post,

As Rod Dreher points out, the one child policy is proving highly problematic for long-term social health, even in China.

The Moral Purpose of the State

This new book by Christian Reus-Smit should be of interest to MoJers.

Thursday, December 10, 2009

Conscience and the Common Good

This holiday season, if you've been tossing and turning all night, wondering what to buy for that friend or relative who has a strange fascination with the liberty of conscience, wonder no more.

Monday, December 7, 2009

"No Hidden Magenta" (new blog)

Fordham theology prof Charles Camosy's new blog, "No Hidden Magenta: Bridging the Polarized Gap Between 'Red and Blue State' Groupthink," is worth checking out.  Early posts address health care reform, abortion, and President Obama's new Bioethics Commission. 

Friday, December 4, 2009

Are crisis pregnancy centers deceptive?

I've received some helpful comments in response to my earlier questions.  Matt Bowman writes:

CPCs aren't deceptive and . . . the purpose of the law is to give the impression that they are to good people like yourself. But in my view another very important point is that disclosure restrictions are always one sided. They never require Planned Parenthood to declare formally that they do not refer to CPCs, which would be the equivalent of requiring CPCs to say they don't do abortions. Doesn't the detailed accessibility of free pro-pregnancy support constitute relevant and essential information to every woman walking into Planned Parenthood? In a very similar fashion in the health care conscience context, Planned Parenthood, Alta Charo, et al. always want to require pro-life doctors to disclose that they don't to abortions, but they will never even suggest much less agree to require all doctors to disclose whether they do or do not do abortions. Ironically, such one-sided disclosure is sold based on principles of neutrality and patient information. But on those concepts there is no principled reason to apply them only to pro-life providers. Instead they are based on non-neutral assumptions about the baseline of what proper health care is, meaning that pro-life pregnancy centers and pro-life Ob/Gyns are substandard and need correction by disclosure, whereas abortionists are already up to par. So it's the people supporting partial disclosure who are not telling patients the whole truth.

Anjan Ganguly writes:

The way you frame the question seems to presume the normativity of abortion and birth control. Must the default assumption be that providing medical help to women with "crisis" pregnancies means providing abortion? Does providing sexual-health services to young people automatically implicate birth control? Should crisis pregnancy centers be making the nature of their services clear on their own[?]". From the little I know, such clinics are forthright about providing pre-natal care, counseling, adoption services, and the like; they seem to say that they do what's best for women and unborn children, which, in their view,objectively excludes abortion and birth control. Certainly people disagree strongly as to whether abortion and birth control could be in a woman's or child's best interests, but to suggest that pro-life clinics are engaging in deception by not declaring their position suggests that pro-choice clinics are the moral norm.

And John O'Herron argues that most crisis pregnancy centers are not misleading.  As for those that arguably are misleading, he writes:

[Those CPCs] would say that they are able to save more lives that way and, since they are not out outright telling a lie, then there is nothing wrong. It seems to me like they are misleading though. I guess the question would be whether misleading is wrong. If I can convince someone who is considering doing something as gravely immoral as abort their child that I can help them, only to try to change their mind, I don't know that I did something wrong. I guess I just don't think that people trying to get abortions deserve the honest services and assistance in such an endeavor at the outset. Though if there are false statements in the name, description, or consultation, even if it did save a life, it would clearly be wrong. And there may be a prudential question as well-is this is an effective way to save lives and change hearts. Though I think on that front, it is. The people who get worked up about them "lying" to vulnerable women, etc. are the same ones who think they should be passing out condoms and refering to Planned Parenthood. I'm not concerned about losing their vote.

Thursday, December 3, 2009

Are crisis pregnancy centers deceptive? Is that OK?

The Baltimore City Council is requiring crisis pregnancy centers to put up signs making clear that they do not provide abortions or birth control.  I do not support such a mandate from the government, but I do wonder, should crisis pregnancy centers be making the nature of their services clear on their own, or is deception part of their mission in that it gives them the best chance to gain a hearing for their pro-life message?  Should deception be a legitimate part of the pro-life cause?

Thursday, November 19, 2009

Are Catholic law schools wise stewards of their students' debt?

I agree with Rick that the legal profession's academic woes should not nececessarily reduce our commitment to the law as a humane discipline.  However, I do believe that all law schools -- Catholic law schools in particular, I would hope -- should use this time as an impetus to think carefully about the concept of stewardship as it applies to legal education.  It seems that Catholic law schools have largely been indistinguishable on this front, simply following the crowd in asking how much the market can bear in terms of tuition hikes, reduced teaching loads, swanky new centers, and the chase for LSAT/GPA profile rather than asking whether they are being wise stewards of their students' (not-yet-existent) financial resources.  So I applaud a school like Washington & Lee for making an effort to connect their students more directly with the work they will do as lawyers.  I am concerned about the pressure that places on other important aspects of the curriculum, especially the interdisciplinary aspects of the curriculum, but I applaud them for thinking seriously about whether the current model of legal education is in keeping with students' long-term interests. 

To be clear, I am among those chasing the crowd -- I love reduced teaching loads, swanky new centers, and a class with an impressive LSAT/GPA profile.  So I'm not exactly sure if and how law schools should look different -- after all, a higher US News ranking allows me to bask in some reflected glory is in our students' long-term employment interest -- but when we think about new expensive initiatives, we should ask whether the initiative justifies increasing our students' debt load.  One of the unfortunate results of the great rankings chase is that the students with the less rosy job prospects are subsidizing the education of the students with the rosier job prospects.  Those same students are also paying my salary.  So is it important that law students have the opportunity to learn and reflect on the insights that Rawls or Maritain have for law, politics, and citizenship?  Absolutely.  Should a Catholic law school be making "splashy" hires by letting a big name carry a three-credit-per-decade teaching load consisting only of their seminar, "Things Rawls and Maritain Might Say to Each Other if They Were in My Kitchen?"  Probably not.  Further, I'm not sure if Catholic law schools can justify relying on the market as an indicator that their tuition rates are in keeping with their students' long-term interests.  There appears to be a bottomless reservoir of young people willing to incur huge debts for a degree that does not always make economic sense.  Leading figures within the Catholic intellectual tradition have generally been unafraid to tell people when they're making decisions that are detrimental to their long-term flourishing.  Catholic law schools, it seems to me, should pay attention to our students' long-term flourishing even when -- especially when -- they're willing to pay any price for a law degree.

Tuesday, November 17, 2009

Genentech's lessons for the Bishops

Perhaps the Bishops would have escaped criticism for raising concerns about the health care reform bill if they had taken greater pains to conceal their role?

Thursday, November 12, 2009

Religious Legal Theory at Seton Hall

I'm in beautiful Newark, where Seton Hall is hosting a marvelous conference titled Religious Legal Theory: The State of the Field.  Most of the conversations are of direct interest to MoJers.  In my own remarks, I tried to lay out some of the methodologies marking Catholic legal theory, distinguishing CLT that proclaims from CLT that describes, and distinguishing the prophetic from the pragmatic.  I also described my hesitation when a newspaper reporter interested in my forthcoming book asked "So are you Catholic?" after we had discussed a couple of cases involving Catholic Charities:

Perhaps my fear is that the religious label, especially the Catholic label, will be an easy way to pigeon-hole me and more easily dismiss my opinions as pre-ordained conclusions dictated by the fact of my submission to an authority beyond reason, rendering them less authentic and even less human.  In this regard, my hesitation likely reflects my own misconception of what it means to be a Catholic legal scholar and about what it means to be a Catholic.  My faith should be the impetus to delve even more deeply into the heart of what it means to be human, to grapple unflinchingly with the reality of our existence.  In a real sense, Catholic legal theory exhibits much of the same promise and peril of my own personal faith journey.  When I use faith as an escape, when I toss off trite prayers to numb myself to the tragedy that unfolds around me, rather than praying to express and share in the depth of that grief, I am rightly dismissed by the grieving.  Similarly, when I use faith in my scholarship as a bludgeon to wield against those who reject my worldview, or when I dress up my unsupported assertions as self-evident simply because they come from my faith tradition, I am rightly dismissed by those legal scholars who are authentically struggling with the question of how imperfect people should govern themselves in an imperfect world.  The Catholic legal theory project has much to contribute to the legal academy, starting with the anthropological question of what it even means to be human.  Our contribution depends not just on the relevance of our answers, but also on the humanity with which we extend those answers.

Being asked to reflect -- and articulate those reflections publicly -- on the Catholic legal theory project was a helpful impetus to step back and wrestle with the question, what is the difference, if any, between a Catholic doing legal theory and "Catholic legal theory?"  A further impetus is David Skeel's articulation this afternoon of (evangelical) Christian legal theory, which sounded, as Skeel framed it, a lot different than Catholic legal theory -- i.e., directed toward an audience of one's co-religionists, best pursued as a side-interest to "regular" scholarship (at least pre-tenure), and still difficult to discern except on the margins of the legal academy.  (On this last point, the rollicking response to Skeel's article on Christian legal scholarship continued today, with David Caudill's "On Skeel's Rhetorical Invention of a Failed Project.")  A recurring issue for me is the extent to which Christian (or Catholic) legal theory needs to be explicit about its underlying religious commitments in order to fit within the genre (and should it even be a genre?).  I also enjoyed listening to thoughtful papers from Bob Cochran, John Coverdale, John Nagle, Marc Poirer, and Sam Levine.  More tomorrow . . .