Growing up in his congressional district, I was fortunate enough to have Henry Hyde appear at my junior high to give us civics lessons. One of the leading anti-abortion voices in Congress, he died early this morning at age 83.
Thursday, November 29, 2007
Henry Hyde, R.I.P.
Priests, Laity, and the "Expectation Gap"
Steve's question about the priest as an icon of Christ reminded me of an article in the current Commonweal titled "Mind the Gap: The Return of the Lay-Clerical Divide." Based on a new book titled American Catholics Today, the article is only available online to subscribers, but here's an excerpt:
Laypeople are increasingly committed to an active role in the church while more and more of their priests prefer a limited role for them, coupled with a more cultic model of priesthood. These important cultural differences are the product of generational changes among both the laity and the clergy. Whereas the two groups seemed to converge in the 1960s and '70s, they have diverged since the '80s. As a result, there are sharp differences between young adult laypeople who expect the clergy to welcome their participation, and young priests who believe the responsibility for parish decisions is theirs.
Laypeople in the post-Vatican II and millennial generations are going in one direction while "John Paul II" priests are going in another. The full effect of this division is not yet felt or discernible, but that will change in coming years. In a decade or two, today's older generation of priests and laypeople will be gone, leaving all the decisions to today's younger priests and laity, precisely where the expectation gap is widest.
Wednesday, November 28, 2007
The Psychology of Retribution
Kevin Carlsmith and John Darley have posted a new paper that may be of interest to MoJ readers titled Psychological Aspects of Retributive Justice. (HT: Solum) It has implications for our conversation regarding the death penalty and deterrence, though I'm not sure what those implications are. Here's the abstract:
Retributive justice is a system by which offenders are punished in proportion to the moral magnitude of their intentionally committed harms. This chapter lays out the emerging psychological principles that underlie citizens' intuitions regarding punishment. We rely on experimental methods and conclude that intuitions of justice are broadly consistent with the principles of retributive justice, and therefore systematically deviate from principles of deterrence and other utilitarian based systems of punishing wrongs. We examine the recent contributions of social-neuroscience to the topic and conclude that retributive punishment judgments normally stem from the more general intuitive-based judgment system. Particular circumstances can trigger the reasoning-based system, however, thus indicating that this is a dual process mechanism. Importantly, though, evidence suggests that both the intuitive and reasoning systems adhere to the principles of retribution.
The empirical results of this research have clear policy implications. Converging evidence suggests that the formal U.S. justice system is becoming increasingly utilitarian in nature, but that citizen intuitions about justice continue to track retributive principles. The resulting divide leads people to lose respect for the law, which means that they do not rely on the law's guidance in ambiguous situations where the morally correct behavior is unclear. These are the dangers to society from having justice policies based jointly on the contradictory principles of retribution and utility, and we lay out an argument for enacting public policies more exclusively based on retributive principles of justice.
Tuesday, November 27, 2007
Social Problems and the Self
Patrick Deneen has a wonderful post exploring the ideas of Fr. James Schall, Yves Simon, and what he sees as the most difficult lesson to teach to our current culture:
We have come to understand our "selves" to be what we truly are, and the effort to satiate the appetites of our selves as the only legitimate pursuit against which no obstacle - neither self-mastery, nor familial or cultural norms, or even law - can stand against. At the deepest level, all the various aspects of the contemporary culture that we decry - on the Right, the loss of family values, on the Left, the environmental crisis - come back to our inability to understand and accept this truth to which Fr. Schall points us: the truth that human freedom consists in a form of self-mastery, aided by the customs and laws of our families and communities. The ways that we currently degrade both the culture and the natural world is directly attributable to our inability to govern ourselves, to see our "selves" as a source of our problems rather than some kind of external phenomenon or cause. To use a wonderful example from Jason Peters, we are prone constantly to complain how bad traffic is without considering for a moment that we were part of what constituted the gridlock.
Deneen explains further:
My constant attention to the problems we face is not intended as a wake up call for innovation and invention: it's rather to insinuate the possibility that we are destroying ourselves by degree because we refuse to govern our appetites or even see these appetites as problematic. I'm highly dubious that we will "invent" our way out of the need to govern ourselves, and am dead certain that nature and the order of the world will not indefinitely brook our misbehavior. We should be mindful that our near-automatic response to the fact of depletions that surround us - that we MUST find other means to continue running our current way of life - is directly the result of our unwillingness to understand that "the disorder of the world originates in disorder of soul". The problem is not intrinsically the various depletions we face (but, boy, are they problems): the problem lies in the more fundamental motivation of our thoughtless response that avoids considering whether our behavior has anything to do with the problems we face, and might in fact further exacerbate those problems, as well as create greater ones, the longer we refuse to face this possibility.
Rod Dreher comments that "the most important political task for Americans is not whether we will choose to be governed by Republicans or Democrats. Rather, it's whether or not we will govern ourselves and our insatiable appetites."
Friday, November 16, 2007
The Morally Distinct Corporation
In the sidebar under my name, I've posted a new paper titled The Morally Distinct Corporation: Reclaiming the Relational Dimension of Conscience. Here's the abstract:
The law has tended to deal with conscience at points of direct conflict between the individual and the state, but rights of conscience have also been invoked in a recent series of high-profile disputes between the individual and non-state associations. This trend is driven by a generally laudable commitment to minimize external interference with an individual's moral autonomy, but we must remember that the vibrancy of conscience depends in part on the vitality of the associations against which the right of conscience is currently being invoked.
Missing from our conversation about conscience is a robust articulation of its relational dimension - i.e., the notion that the dictates of conscience are defined, articulated, and lived out in relationship with others. Conscience is shaped externally; our moral convictions have sources, and our sense of self comes into relief through interaction with others. Conscience, by its very nature, directs our gaze outward, to sources of formation, to communities of discernment, and to venues for expression. When the state closes down avenues by which persons live out their core beliefs - and admittedly, some avenues must be closed if peaceful co-existence is to be possible - there is a cost to the continued vitality of conscience. It is not just a vague allegiance to moral pluralism that should underlie our legal system's reluctance to restrict the independence of the myriad associations that make up the vast space between person and state; it is a commitment to freedom of conscience. Put simply, if our society is to facilitate an authentic and robust liberty of conscience, we cannot reflexively favor individual autonomy against group authority; we must also work to cultivate the spaces in which individuals come together to live out the shared dictates of conscience.
This article is part of a bigger project outlining how the law can better support this relational dimension of conscience in a variety of areas. Here I explore the broad implications that conscience's relational dimension has for our understanding of corporations and their role in society. The exploration has three components: first, connecting liberty of conscience with the common good, explaining why institutional autonomy is an essential component of both; second, examining whether for-profit corporations may properly be considered venues for the communal expression and implementation of conscience, looking specifically at the capacity of corporations such as Wal-Mart to carve out moral identities as marketplace actors that diverge from the norms embraced by the broader society; and third, analyzing the tension between a corporation's moral identity and the exercise of conscience by dissenting community members, particularly employees.
As always, I'd welcome readers' comments.
Thursday, November 15, 2007
Pharmacists and Conscience in Washington State
Federal district judge Ronald Leighton is getting criticized in the blawgosphere today for upholding the conscience rights of pharmacists in Washington state. State regulations made it sanctionable for a pharmacy to permit a pharmacist to refuse to fill a prescription because of moral or religious objections unless another pharmacist was on duty who could fill the prescription. Judge Leighton enjoined the regulations' enforcement under the Free Exercise Clause. Crucially, he applied strict scrutiny, avoiding Employment Div. v. Smith by observing that the evidence "strongly suggests that the overriding objective of the subject regulations was . . . to eliminate moral and religious objections from the business of dispensing medication." Under strict scrutiny, the state's interests did not measure up; the court reasoned that "the interests promoted by the regulations have more to do with convenience and heartfelt feelings than with actual access to certain medications."
Howard Wasserman argues that the court erred in applying strict scrutiny because "the regulations do not allow any refusal to fill a proper prescription that can be properly filled, regardless of whether the basis for the refusal is religious or secular." Marci Hamilton makes the same argument, but adds that "the court's condescending treatment of the woman's plight as a matter of mere 'convenience' is especially problematic" because we are dealing with a "right to obtain contraceptives free of state interference."
For what it's worth, I tend to share their skepticism as to whether the court could so easily circumvent Smith based on evidence of the impetus behind the regulations, and I am not a huge fan of dressing up claims of conscience in the workplace as constitutional rights. So while I have a hard time defending the court's ruling, I do object to the underlying regulations.
Objecting to Dean
Tom is correct that Dean's theological "howler" was the focus of my post, though I would also object to the implicit assertion he's making about a GOP political theology, as though the Republican Party supports the view that American Jews should not be comfortable, that we are a one-religion nation, etc. Those are more properly characterized as accusations of theocracy than claims of theology. (Mainly, I confess, I wanted the chance to revisit "the scream.")
Heterosexual Offspring as Status Goods
Florida International law prof Jose Gabilondo has posted his new paper (to be published by one of Boston College's secondary journals), Irrational Exuberance About Babies: The Taste for Heterosexuality and Its Conspicuous Reproduction. Here's the abstract:
Building on a behavioral economics game that I play with students in our law school's Women and the Law course, I argue for the existence of a pre-natal taste for heterosexuality in would-be parents using feminist theory and socioeconomics. I also argue that legal doctrine about heterosexual marriage and reproduction reflect and perpetuate a similar heterosexuality premium or gay discount in the context of two recent state equal protection cases - Hernandez v. Robles (N.Y. 2006) and Morrison v. Sadler (Ind. 2005) - which exclude homosexuals from marriage. I draw heavily on Pierre Bourdieu's theory of social reproduction to examine how heterosexual offspring serve as status goods for middle and upper-middle class parents. Although sympathetic to gay and lesbian scholarship and queer perspectives, my argument rejects post-modern approaches on these issues in order to ground the inquiry in more conventionally modern terms.
And here's an excerpt from the text:
What alarms me is making . . . the normative status of heterosexuality a social engineering project in need of legal subsidies, as though this majority orientation would perish but for our efforts on its behalf, and remaining in the dark about one’s role—as a heterosexual—in this dreary cycle of norm reproduction and enforcement. It is the patterned unreflectiveness of heterosexual reproduction which makes me want to grab some by the shoulders and shake them into sentience—the adults, that is, not the babies, who tragically get shaken enough as it is. Our moral clarity about racism and anti-Semitism may one day extend to marriage discrimination. While we wait, read on for a textual contraceptive against the propagation of normative heterosexuality.
Putting aside the marriage question, norms of heterosexual reproduction could reflect "patterned unreflectiveness" and our desire for "status goods," or they could reflect the natural order -- i.e., the conditions long assumed to be necessary for society's very survival. That possibility makes for less riveting legal scholarship, of course.
Wednesday, November 14, 2007
The Dems Get Theological
Consider this recent statement from Democratic National Committee chair Howard Dean (HT: Volokh):
"This country is not a theocracy," Dean said. "There are fundamental differences between the Republican Party and the Democratic Party. The Democratic Party believes that everybody in this room ought to be comfortable being an American Jew, not just an American; that there are no bars to heaven for anybody; that we are not a one-religion nation; and that no child or member of a football team ought to be able to cringe at the last line of a prayer before going onto the field."
Which is more cringe-inducing? Dean's "scream," or his abandonment of liberalism's premise that the state will remain neutral on the truth claims of religion?
Vischer on Richards on the New Natural Lawyers
Judging from responses I've received to my post regarding the new book by Bamforth and Richards, let me clarify that my post should not be construed as an endorsement of the book. I am not an expert on the new natural law, nor on the jurisprudence of Richards or Bamforth. While I often find myself wondering whether the explanatory reach of natural law theory (new and old) exceeds its grasp, particularly as applied to our current legal system, that does not make David Richards an attractive alternative to me. I have not yet read this book, but my past encounters with his work suggest to me that his unshakeable belief in traditional Christianity's sinister and perverse effect on humanity colors his analysis of any related fact or theme. That said, I look forward to reading his new book, even though I likely will find it unconvincing, even shockingly unconvincing.
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