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, November 12, 2007

Bamforth/Richards on New Natural Lawyers on Sex

By Rob Vischer

It's never too early to find the perfect stocking-stuffer for that new natural lawyer on your Christmas list.  Oxford law prof Nicholas Bamforth and NYU law prof David A.J. Richards provide a provocative gift idea with their new book coming out next month, Patriarchal Religion, Sexuality, and Gender.  Here is the abstract:

This book is an evaluation and critique of a school of thought that has defended a form of natural law theory, alleged to be based in Thomas Aquinas, that has prominently defended the conservative moral views of the papacy on matters of both sexuality and gender as, allegedly, a secular view consistent with liberal constitutionalism. New natural law is not a secular view consistent with liberal constitutionalism or a form of argument consistent with the philosophical aims of historical Thomism, but rather polemically defends sectarian arguments that many thoughtful Catholics now properly reject. Finally, the book criticizes the fundamentalist style of the new natural lawyers as rooted in their embattled defense of the highly patriarchal structure of religious authority. The book contains an original analysis of the history and culture that gave rise to such patriarchal authority (including a celibate male clergy), and questions the appeal of such authority in contemporary circumstances (discussing the priest abuse scandal in the Catholic church). The book concludes by discussing alternative forms of Christianity that are not fatally flawed in the way new natural law is.

Friday, November 9, 2007

Kopel on Christian Pacifism

By Rob Vischer

David Kopel has posted a draft of his paper, Modern Christian Pacifist Philosophy.  Here's the introduction:

This Article examines the strengths and weaknesses of modern pacifist religious philosophy. The Article suggests that some intellectual arguments for pacifism are logically solid (once certain premises are granted), while others have serious flaws. The article discusses five influential philosophical advocates of non-violence Thomas Merton, Stanley Hauerwas, Leo Tolstoy, Tony Campolo, and John Howard Yoder. In addition, the Article examines three real-world cases where the practice of non-violence was put into action: the Danish rescue of the Jews during WW II, the American Civil Rights movement in the South in the 1960s, and the invasion of the Chatham Islands -- the home of the pacifist Moriori tribes.

Notably, this Article does not address the pacifism of the Society of Friends (the Quakers) for their pacifism is logically irrefutable, because it is beyond reason. Quakers urge each person to listen attentively to the “inner light” of his or her own conscience, and they believe that as a person becomes increasingly open to that inner light, the person will eventually develop heartfelt convictions making interpersonal violence impossible. There are many Quaker converts who bear witness to the success of this approach. As the great French philosopher Blaise Pascal said, explaining why he had faith in Christianity, “The heart has its reasons which reason does not understand.”

Thursday, November 8, 2007

Claeys on Locke on Associations

By Rob Vischer

Anyone interested in theories of associational freedom (and if you read MoJ, you probably are) needs to read a new paper by George Mason law prof Eric Claeys titled The Private Society and the Public Good in John Locke's Thought.  Here's the abstract:

This Article interprets John Locke's mature writings on politics, ethics, and philosophy to identify his teachings on liberal freedom of association. The conventional wisdom probably holds that Locke does not propound a general theory of associational freedom, just a theory of toleration specific to the church-state problem. In reality, Locke defends religious toleration as one particular application of a much more encompassing theory of associational freedom. Presumptively, private associations enjoy the rights to associate on whatever terms they want, set and enforce their own policies, and control their own membership. But private associations lose this presumption of freedom if they promote common opinions antithetical to respect for life, property, family, and the other the material interests on which the Lockean commonwealth focuses. More controversially, private associations also lose this presumption if they propagate opinions inconsistent with the common political opinions a Lockean political order inculcates to reinforce the moral conditions for liberalism.

Although this Article is primarily interpretive, it does defend Locke's position enough to make it clear why that position is worth interpreting. To that end, the Article shows why Locke's defense of associational freedom accords more with our experiences and observations than do deontological accounts of associational freedom by John Rawls and Robert Nozick.

Also to that end, the Article suggests how Locke's position may protect associational freedom more and less than contemporary practice. On one hand, Lockean associational freedom gives the political community wider latitude to bar and expel seditious associations. Here, Locke's account presents a tougher-minded theory of liberalism than theories influential in modern law and practice. On the other hand, Locke's account provides stronger defenses of associational freedom in the face of anti-discrimination policies. Here, Locke's account explains the public-private distinction in greater depth than modern law and practice.

Wednesday, November 7, 2007

The disappointed law student

By Rob Vischer

As I hand out midterm grades today, I was struck by this paper, Preparing Law Students for Disappointing Exam Grades: Lessons From Casey at the Bat. (HT: Prawfs)  Here's the abstract:

It is a statistical fact of life that two-thirds of the law students who enter law school will not graduate in the upper one-third of their law school class. Typically, those students are disappointed in their examination grade results and in their class standing. Nowhere does this disappointment manifest itself more than in their attitude toward their classes. In the fall semester of their first year, students are eager, excited, and willing to participate in class discussion. But after they receive their first semester grade results, many students withdraw from the learning process - they are depressed and disengaged. They suffer a significant loss of self-esteem. This article considers whether law professors should prepare their students for the disappointing results - the poor grades - that many are certain to receive. I assert that professors do indeed have a role to play - in fact, a duty to their students - to confront this problem. I offer a strategy by which professors can acknowledge students' pre-examination anxiety and deal constructively with their impending disappointment. There are lessons to be learned from Casey at the Bat, Ernest Lawrence Thayer's immortal poem about failure.

It seems that Catholic law schools should be even more inclined to minister to students in their disappointment, and to utilize resources even more insightful than Casey at the Bat.  I try to remind students to identify the source(s) of their worth, especially at exam time, and to resist the temptation to define their worth in terms of their accomplishments.  It's a lesson I'm still learning myself, but I think it warrants continued focus in the classroom and in casual conversation.  Perhaps the richness and breadth of the conversation that can occur in a setting where faith is "on the table" is one aspect of the pastoral dimension that should distinguish Catholic legal education.

Believe It or Not . . .

By Rob Vischer

Pat Robertson has endorsed Rudy Giuliani.

Tuesday, November 6, 2007

Torture and the Christian Right

By Rob Vischer

According to Deroy Murdock, writing in Human Events, "waterboarding is something of which every American should be proud."  An excerpt:

Though clearly uncomfortable, waterboarding loosens lips without causing permanent physical injuries (and unlikely even temporary ones). If terrorists suffer long-term nightmares about waterboarding, better that than more Americans crying themselves to sleep after their loved ones have been shredded by bombs or baked in skyscrapers.

Over at Evangelical Outpost, Joe Carter laments the muted response by conservatives to Murdock's op-ed, which he sees as part of a broader failure by (conservative) Christians to speak up about torture:

Even more disturbing than the idea that a future attorney general doesn't know what's involved in waterboarding is that we live in an age when a familiarity with torture techniques is to be expected of our leaders. How did we get to the point where such a question needs to be asked of an attorney general? Who allowed our country to succumb to such fear and moral cowardice that we parse the the meaning and definition of "torture?"

I blame myself, and implicate my fellow Christians. We have remained silent and treated an issue once considered unthinkable--the acceptability of torture--like a concept worthy of honest debate. But there is no room for debate: torture is immoral and should be clearly and forcefully denounced. We continue to shame ourselves and our Creator by refusing to speak out against such outrages to human dignity.

Evangelical Outpost is the most popular blog out there catering to evangelical Christians, and Mr. Carter has a sizeable platform as a result (he also directs the web presence of Family Research Council).  If he is having second thoughts about the human-dignity trade-offs President Bush has been willing to make in the war on terror, does this signal more problems with the evangelical base for the leading GOP candidates (other than McCain) who have outdone Bush in portraying themselves as ready, even eager, to embrace waterboarding, to "double [the size of] Guantanamo," and to rely on a national security adviser who would "stick a knife into someone's thigh in a heartbeat" if it would elicit information that could save American lives?

Monday, November 5, 2007

Catholic Social Scientists at St. John's

By Rob Vischer

The Society of Catholic Social Scientists gathered recently at St. John's University Law School in New York.  I was not able to attend, but it looks like it would have been worth my while, with speakers including Richard John Neuhaus, Abp. Charles Chaput, John Breen, Edward Gaffney, Joseph Koterski, S.J., and our own Richard Myers, to name just a few.  Abp. Chaput's address is available here.  An excerpt:

People often say we're living at a "post-Christian" moment. That's supposed to describe the fact that Western nations have abandoned or greatly downplayed their Christian heritage in recent decades. But our "post-Christian" moment actually looks a lot like the pre-Christian moment. The signs of our times in the developed nations-morally, intellectually, spiritually and even demographically-are uncomfortably similar to the signs in the world at the time of the Incarnation.

The Battle for Anthony Flew

By Rob Vischer

Yesterday's New York Times Magazine details the fascinating story of Anthony Flew, the prominent atheist who recently declared his belief in God.  The story suggests that the elderly Flew was a prized trophy sought by warring camps:

Intellectuals, even more than the rest of us, like to believe that they reach conclusions solely through study and reflection. But like the rest of us, they sometimes choose their opinions to suit their friends rather than the other way around. Which means that Flew is likely to remain a theist, for just as the Christians drew him close, the atheists gave him up for lost. “He once was a great philosopher,” Richard Dawkins, the Oxford biologist and author of “The God Delusion,” told a Virginia audience last year. “It’s very sad.” Paul Kurtz of Prometheus Books says he thinks Flew is being exploited. “They’re misusing him,” Kurtz says, referring to the Christians. “They’re worried about atheists, and they’re trying to find an atheist to be on their side.”

They found one, and with less difficulty than atheists would have guessed. From the start, the believers’ affection for Antony Flew was not unrequited. When Flew met Christians who claimed to have new, scientific proof of the existence of God, he quickly became again the young graduate student who embarked on a study of the paranormal when all his colleagues were committed to strict rationalism. He may, too, have connected with the child who was raised in his parents’ warm, faithful Methodism. Flew’s colleagues will wonder how he could sign a petition to the prime minister in favor of intelligent design, but it becomes more understandable if the signatory never hated religious belief the way many philosophers do and if he never hated religious people in the least. At a time when belief in God is more polarizing than it has been in years, when all believers are being blamed for religion’s worst excesses, Antony Flew has quietly switched sides, just following the evidence as it has been explained to him, blissfully unaware of what others have at stake.

Is the Rack torture?

By Rob Vischer

Overheard by UC Davis philosopher Gerald Dworkin (HT: Leiter), several Bush Administration heavyweights offer their views on a hotly contested question:

Mukasey: I haven’t been read into the details of the Rack, and I understand that these details are classified. I am firmly opposed to torture, torture is illegal, but I do not know whether the Rack is torture. To comment further would be to expose sincere and loyal Inquisitors to the possibility of retro-active condemnation.

Bush: I am not going to give aid to our enemies by disclosing details of our interrogation techniques. But if we do expose detainees to the Rack it is not torture, because we do not torture.

Cheney: A little stretching never hurt anybody. I understand it’s actually recommended before exercising.

John Yoo: It is well established that torture involves inflicting pain equivalent to that of the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. No one stretched on the Rack has ever suffered fromkidney, lung, or spleen failure nor, to the best of my recollection, has died. As to impairment of bodily function, it would be a stretch to include deformed limbs under this heading.

David Addington: Congress may no more regulate the president's ability to use the Rack as an interrogation technique than it may regulate his ability to direct troop movements on the battlefield. Decisions about whether to stretch or not require the unity in purpose and energy in action that characterize the presidency rather than Congress.

Gonzalez: I cannot recall what the Rack was. Nor do I have any recollection about whether I ever discussed it with the President. The testimony of some that they heard me mention the Rack in a meeting on March 23rd -- a meeting which I do not remember --may have been a confusion of Rack with Iraq.

Tuesday, October 30, 2007

The New Atheists

By Rob Vischer

Theodore Dalrymple, an atheist himself, has a great review of the recent flood of angry-about-religion books that have been discussed here on MoJ and elsewhere.  An excerpt:

Lying not far beneath the surface of all the neo-atheist books is the kind of historiography that many of us adopted in our hormone-disturbed adolescence, furious at the discovery that our parents sometimes told lies and violated their own precepts and rules. It can be summed up in Christopher Hitchens’s drumbeat in God Is Not Great: “Religion spoils everything.”

What? The Saint Matthew Passion? The Cathedral of Chartres? The emblematic religious person in these books seems to be a Glasgow Airport bomber—a type unrepresentative of Muslims, let alone communicants of the poor old Church of England. It is surely not news, except to someone so ignorant that he probably wouldn’t be interested in these books in the first place, that religious conflict has often been murderous and that religious people have committed hideous atrocities. But so have secularists and atheists, and though they have had less time to prove their mettle in this area, they have proved it amply. If religious belief is not synonymous with good behavior, neither is absence of belief, to put it mildly.

In fact, one can write the history of anything as a chronicle of crime and folly. Science and technology spoil everything: without trains and IG Farben, no Auschwitz; without transistor radios and mass-produced machetes, no Rwandan genocide. First you decide what you hate, and then you gather evidence for its hatefulness. Since man is a fallen creature (I use the term metaphorically rather than in its religious sense), there is always much to find.

The thinness of the new atheism is evident in its approach to our civilization, which until recently was religious to its core. To regret religion is, in fact, to regret our civilization and its monuments, its achievements, and its legacy. And in my own view, the absence of religious faith, provided that such faith is not murderously intolerant, can have a deleterious effect upon human character and personality. If you empty the world of purpose, make it one of brute fact alone, you empty it (for many people, at any rate) of reasons for gratitude, and a sense of gratitude is necessary for both happiness and decency. For what can soon, and all too easily, replace gratitude is a sense of entitlement. Without gratitude, it is hard to appreciate, or be satisfied with, what you have: and life will become an existential shopping spree that no product satisfies. 

Previous Articles More Articles

Recent Posts

Categories

Monthly Archive