Bryan McGraw, MoJ reader and visiting fellow at Emory's Center for the Study of Law and Religion, responds to my post of Frank Schaefer's comments on Sen. Obama and Rev. Wright:
Don’t you think Franky is being just a *wee* bit disingenuous here? First, Wright went far beyond just condemning America for its “racism and violence” and complaining that no one had used the “N-word” about Hillary. (It would have been strange if they did, and I’m sure that people have used similarly degrading language about her). He claimed (and given his theological commitments, it seems reasonable to think that these aren’t simply one-off lines) that America was fundamentally unjust, structured at its core around white domination and dedicated (through things like the creation of the AIDS virus) to the destruction of blacks. He wasn’t being prophetic, he was wandering into crank-land.
A good parallel might be a candidate who was a member of a reconstructionist church. Suppose, for example, that George W. Bush, in the course of the 2000 presidential campaign, turned out to be a member of a church built around a charismatic pastor who demonstrated a sincere and abiding commitment to the theological views of Rushdoony, North, etc. And suppose further that that Bush credited this pastor with his spiritual turn-around and had been a prominent member for a couple of decades. How do you think things would have gone for him had videos surfaced of that pastor “damning” America for its abortion politics or toleration of homosexuals? Not well, I suspect.
On a broader note, I don’t think that problem is so much that Wright thinks God might judge America for its sins, but rather that the fact that Obama seemed (until the last couple of weeks) so comfortable with, even proud of, the church and its pastor suggests that he at least thinks (or thought) Wrights views not beyond the pale and maybe even at times correct. I don’t mean to make Obama responsible for his pastor’s every utterance, but it’s implausible to think that his membership and participation in the church says nothing about who he is and what he thinks.
Is it more politically acceptable for pastors to "damn" America for abortion than it is for racism? We haven't yet discussed the interesting mix of faith, race, and politics underlying the controversy surrounding Barack Obama's relationship with Rev. Jeremiah Wright. Frank Schaefer, son of Religious Right pioneer Francis Schaefer, offers this intriguing perspective:
Every Sunday thousands of right wing white preachers (following in my father's footsteps) rail against America's sins from tens of thousands of pulpits. They tell us that America is complicit in the "murder of the unborn," has become "Sodom" by coddling gays, and that our public schools are sinful places full of evolutionists and sex educators hell-bent on corrupting children. They say, as my dad often did, that we are, "under the judgment of God." They call America evil and warn of immanent destruction. By comparison Obama's minister's shouted "controversial" comments were mild. All he said was that God should damn America for our racism and violence and that no one had ever used the N-word about Hillary Clinton.
This time of year, it's important to reflect on Christ's journey by participating in the stations of the cross millenium development goals. From the department of "how has the Church survived so long without this?," the relief agency of the Episcopal Church has provided a new liturgy in which worshipers can visit stations such as "Ensure Environmental Sustainability" and "Promote Gender Equality." More commentary is here.
Tuesday, March 18, 2008
A few weeks ago, I posted a description of Adam Kolber's new paper, The Subjective Experience of Punishment, in which he argues that the subjective experience of punishment is a relevant factor in determining a just sentence. I asked: in terms of Catholic legal theory, should the justice of criminal punishment be viewed primarily from the defendant's perspective or from society's? Jonathan Watson has now posted a short response to Kolber's paper titled Punishment, Suffering, and Hedonic Adaptation. Building on the work of C.S. Lewis, Watson argues that Kolber's approach marginalizes the importance of both free will and retribution. It's well worth reading.
Monday, March 17, 2008
MoJ-ers will be interested in Noah Feldman's new essay. An excerpt:
[T]oday’s Muslims are not being completely fanciful when they act and speak as though Shariah can structure a constitutional state subject to the rule of law. One big reason that Islamist political parties do so well running on a Shariah platform is that their constituents recognize that Shariah once augured a balanced state in which legal rights were respected.
Friday, March 14, 2008
My colleague Michael Stokes Paulsen has a preview of a high-profile Supreme Court ruling due in 2010. An excerpt:
This case presents the issue we carefully reserved in Lawrence. See Slip Op. at 18 (noting that that case did "not involve . . . prostitution"). We now conclude that the liberty recognized in Lawrence applies equally to private, consensual sexual conduct by adults, in whatever form of intimacy those adults design. The fact that the arrangement might, in some sense, be thought commercial does not necessarily indicate that it is anything other than consensual.
Tuesday, March 11, 2008
I just posted a draft of a paper I've been working on titled Moral Engagement Without the "Moral Law": A Post-Canons View of Attorneys' Moral Accountability. I welcome any and all feedback. Here is the abtract:
Several years ago in my Professional Responsibility class, I wanted to see how far I could push my students in their embrace of the notion that the moral evaluation of conduct depends on the professional role one occupies. I asked students to imagine that they were medical researchers in Nazi Germany, and that the authorities brought them to a concentration camp, inviting them to experiment on live human subjects. Would they, as scientists, proceed with the experiments? The first three students I called on answered that they would do the experiments if it would advance the research. One explained that morality is constructed by society, and in that particular society, the experiments would not be considered immoral. Another asked, "If those inmates are going to die anyway, why not have them contribute to the greater good?" The third insisted that the job of the researcher is to expand scientific knowledge, and the job of the government is to define the limits of that research. Absent government prohibition, the researcher has no moral reason not to proceed.
These students, I am confident, did not believe what they were saying. They were engaging my question according to the rules of good lawyering, as they perceived them - figuring out a way around any and all obstacles standing between the actor and a given course of conduct. Indeed, much of the blame for their answers belongs with the messages they receive about the values of the legal profession. Much of the law school experience sends the message, subtly but unmistakably, that cleverness is valued over wisdom, and that the law is simply a problem to be solved, rather than an inescapably moral endeavor.
In comparison to the era when the American Bar Association, via the 1908 Canons of Professional Ethics, could confidently instruct lawyers to "impress upon the client and his undertaking exact compliance with the strictest principles of moral law," today we are more skeptical about the existence of any "moral law," much less that it could or should be impressed upon the client. Recognizing the variability of moral convictions and complexity of moral analysis has understandably made lawyers reluctant to judge their clients by moral standards not reflected in positive law. But this reluctance to judge seems also to have brought a reluctance to engage the client on moral terms. The resulting technocratic view of law is evidenced far beyond the walls of my classroom. A refusal to acknowledge the moral dimension of legal practice has contributed to several of the leading lawyer-fueled scandals of recent years, as well as to the broader malaise that has afflicted the profession for some time. Nevertheless, the prospect of putting morality onto the table of legal representation is unsettling to many. This essay looks to reframe our conception of morality's relevance to professionalism, using the Canons' espousal of moral accountability as an insightful point of entry.
This essay was written as a contribution to the ABA's commemoration of the 100th anniversary of the Canons of Professional Ethics.
