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.

Wednesday, October 3, 2007

Novak on MoJ on Ave Maria

By Rob Vischer

Over at National Review, Michael Novak objects to our joint statement on the situation at Ave Maria Law School.  An excerpt:

The Mirror of Justice accusations don’t seem to measure up. For one thing, I don’t understand how those who signed the public letter denouncing Ave Maria School of Law fail to consider — or even to present for others — the relevant background on both sides of this unfortunate dispute. Their statement has a prosecutorial ring, and yet it appears to be based on little evidence. Making such accusations, particularly against a school with a Board constituted by two Roman Catholic Cardinals of vast practical experience (Maida of Detroit — and now the Vatican — and Egan of New York), eight other distinguished persons, of varying professions (mainly the law), plus two de jure members, suggests a need for disclosure. Instead, Mirror of Justice has failed to disclose the facts (or has insufficient evidence), and nonetheless proceeds as though in a prosecutorial manner. In fact, it has been publicly reported that one of the signers of the Mirror of Justice statement has been retained to help make a case against AMSL before the American Bar Association.

. . . .

On the whole, I have found it best to steer clear of such hornets’ nests. Sometimes, though, a violation of fairness seems so flagrant that one feels a duty to ask all contenders to step back, slowly examine the evidence on all sides, hear the best arguments from each, and then try to go forward in fairness and justice. Law professors, above all, should wish to hear both sides of a case. So should we all.

Some very good people have gone public in this dispute. It seems important for all to listen more systematically to those on the side opposite to their own.

Sexual friendships

By Rob Vischer

What is the effect of removing sex from its usual relational context?  The first study of the "friends with benefits" cultural phenomenon finds:

“We found,” Dr. Levine said, “that people got into these relationships because they didn’t want commitment. It was perceived as a safe relationship, at least at first. But also that there was this growing fear that the one person would become more attracted than the other.”

Yet, he added, the overall qualities of the relationships appeared to be true to the name. On standard psychological measures, they appeared more like friendships than romances.

Friends with benefits scored in the middle on a scale assessing intimacy and low on passion and commitment, the study found. “When scores were compared to previous findings with romantic couples, scores on all three dimensions were lower, with the largest differences observed in commitment followed by passion,” the authors wrote.

Call for papers

By Rob Vischer

MoJ readers might be interested in knowing that the Journal of Law & Religion will be celebrating its 25th anniversary next year and has issued a wide-open call for papers in conjunction with that milestone.

Tuesday, October 2, 2007

Question on Catholic hermeneutics

By Rob Vischer

Here's a question from an evangelical MoJ reader:

I'm sure you're familiar with all the problems and divisions Evangelicals have concerning science and scripture.  It seems that Catholics don't sweat trying to figure out things like exactly who Adam or Noah were or whether God may have created life through evolution (or maybe that's a misperception).   Why is that?  What kind of hermeneutic do Catholics employ here -- do Catholics take some of the early parts of scripture as only figurative?  Are there some official documents on hermeneutics that discuss this?

UPDATE:  Villanova law prof Mike Moreland responds:

It seems to me that Catholic biblical exegesis, since the time of Origen, Augustine, and Jerome, has distinguished between the literal and spiritual senses of scripture, with the spiritual sense commonly divided further among the allegorical, the moral, and the anagogical senses. Aquinas simply took the possibility of several senses of scripture for granted in Ia, q.1, a.10. Obviously, there's an enormous range of material to consider on such a complicated question, but a classic study is Henri de Lubac's multi-volume Exégèse médiévale, which Eerdmans brought out in a new edition and translation a few years ago (Medieval Exegesis: The Four Senses of Scripture, 2 vols.). The most important recent magisterial pronouncement, of course, is Dei Verbum, the Dogmatic Constitution on Revelation from Vatican II, though its discussion of the interpretation problem is brief.

Boston College law prof Greg Kalscheur, S.J. also recommends Dei Verbum, "especially Chapter III (Sacred Scripture: Its Divine Inspiration and its Interpretation) and a 1993 document from the Pontifical Biblical Commission, The Intepretation of the Bible in the Church, which can be found in vol. 23 of Origins, issue 29 (Jan. 6, 1994).  The latter document is a very helpful comprehensive discussion of the usefulness of a variety of hermeneutical methods."  Jonathan Watson recommends online resources here, here, and here.

UPDATE #2: Thanks to David Buysse for passing along this (somewhat puzzling, in my view) quote from Origen's De principiis, IV, II, ix:

Divine wisdom has arranged for certain stumbling-blocks and interruptions of the historical sense to be found therein, by inserting in the midst a number of impossibilities and incongruities, in order that the very interruption of the narrative might as it were present a barrier to the reader and lead him to refuse to proceed along the pathway of the ordinary meaning: and so, by shutting us out and debarring us from that, might recall us to the beginning of another way, and might thereby bring us, through the entrance of a narrow footpath, to a higher and loftier road and lay open the immense breadth of the divine wisdom.

Monday, October 1, 2007

Sulmasy on Emergency Contraception

By Rob Vischer

On the topic of the Connecticut bishops' decision to comply with a new state law requiring Catholic hospitals to distribute emergency contraception (Plan B, not RU-486) to rape victims without an ovulation test, a reader emailed me an article from the December 2006 issue of the Kennedy Institute of Ethics Journal by Daniel Sulmasy titled Emergency Contraception for Women Who Have Been Raped: Must Catholics Test for Ovulation, or Is Testing for Pregnancy Morally Sufficient?  Here is the abstract:

On the grounds that rape is an act of violence, not a natural act of intercourse, Roman Catholic teaching traditionally has permitted women who have been raped to take steps to prevent pregnancy, while consistently prohibiting abortion even in the case of rape. Recent scientific evidence that emergency contraception (EC) works primarily by preventing ovulation, not by preventing implantation or by aborting implanted embryos, has led Church authorities to permit the use of EC drugs in the setting of rape. Doubts about whether an abortifacient effect of EC drugs has been completely disproven have led to controversy within the Church about whether it is sufficient to determine that a woman is not pregnant before using EC drugs or whether one must establish that she has not recently ovulated. This article presents clinical, epidemiological, and ethical arguments why testing for pregnancy should be morally sufficient for a faith community that is strongly opposed to abortion.

From the article itself:

The real heart of this issue is the blunt fact that medical science presently has no way of determining whether a woman has conceived until the early embryo has implanted in the wall of the uterus and stimulated the production of substances that can be detected in the blood, about seven days after conception. It is this fact that causes the debate. The ovulation approach attempts (imperfectly) to eliminate any possibility that the woman might have conceived by precluding the prescription of EC drugs for any woman who might be ovulating or about to ovulate. This is a very crude approximation of what we are after. In medical jargon, it is called a “shotgun” approach—hoping to hit the target by intervening with a wide scatter. It is equivalent, for instance, to recommending that all men over the age of 50 have their prostates removed because PSA screening misses some cases of prostate cancer.

Plan B news

By Rob Vischer

The Hartford Courant reports:

In a major softening of their position, the state's Roman Catholic bishops announced Thursday that Catholic hospitals would comply with a new law taking effect Monday that requires all hospitals in the state to dispense emergency contraceptive pills to rape victims.

. . . .

The bishops said Thursday that it is sufficient to require a pregnancy test - and not an ovulation test - before the emergency contraceptive is administered to the rape victim. The law does require a pregnancy test.

"The administration of Plan B pills in this instance cannot be judged to be the commission of an abortion because of such doubt about how Plan B pills and similar drugs work and because of the current impossibility of knowing from the ovulation test whether a new life is present," the bishops said in a statement. "To administer Plan B pills without an ovulation test is not an intrinsically evil act."

Wednesday, September 26, 2007

Women and the Priesthood

By Rob Vischer

Over at First Things, Monica Migliorino Miller reviews a new book by Sister Sara Butler titled The Catholic Priesthood and Women:

Butler points out that Inter Insigniores and Ordinatio Sacerdotalis both insist on Christ’s sovereign freedom in his choice of male apostles. And this is an enormously important point. Indeed, much of the legitimacy of the “fundamental reasons” is based on the fact that, not only did Christ act in a certain way, thus setting up a permanent norm, but that Christ acted in freedom. History does not constrain him, culture is not a barrier, history is not a force that may dictate to Christ his choices. Christ is the Lord of history, he is the Lord of his Church. Behind the “fundamental reasons” is a christological one, and while the Church’s documents insist on Christ’s freedom, it is the theologian’s task to explain why this is important. Butler does not provide this much-needed explanation. What is at stake is the very person of Christ—the divine Logos—in a gesture by which the constitution of the entire new covenant depends. If we follow the arguments of the dissenters, we are forced to conclude that in the very founding of the Church Christ (perhaps innocently) was guilty of an act of injustice to half of the human race. This, of course, is untenable.

All of the apostles were also Jewish, of course, so gender must somehow be different, though Miller believes that Butler's explanation on this point is weak.  Miller expands it:

Arbitrary or no, Christ’s male gender, as Butler recognizes, is constitutive of the economy of salvation. But this means we are not dealing any longer with merely theological reasons for the ban on women priests. After all, Christ’s male gender is as much a historical fact, as much a willful historical choice on the part of the Redeemer, as was his choice to call only men to be among the Twelve. Thus Christ’s having called only male human beings to be apostles, having called only male human beings to share in his priestly ministry, is preceded by the fact of his own masculinity in relation to the Church. Thus the “fundamental reasons” and the “theological reasons” are closely intertwined. If the Church believes she must remain faithful to an original gesture of Christ when he called only males to be apostles, she is even less free to dismiss the male gender of Christ in the economy of salvation upon which the meaning of that gesture depends. The ban on women priests is not simply a matter of the Church remaining true to a fact—Christ only chose men—but a matter of the Church remaining faithful to the fundamental truth of the relation between the order of redemption and the order of creation—an order the Church has no power to undo.

The book seems well worth reading; perhaps it will take up the questions Eduardo asked back in March 2006.

Culture Watch: Body Image and the Media

By Rob Vischer

Reason #389 why I try not to take my daughters with me to the grocery store check-out line: the new edition of US Magazine has the screaming headline "Revenge Plastic Surgery," telling the story of a beautiful young television star who got "revenge" on boys who always teased her for being flat-chested.  Her revenge?  Why, getting breast implants, of course!  Because if there's one thing we need to teach young girls today, it's that the best way to deal with their own insecurities about how they look is to anticipate the day when they can accept their own surgically-enhanced self.

The happiness gap

By Rob Vischer

Thirty years ago, women reported being happier than men; now, according to two new studies, the happiness levels have been reversed, but not because women are necessarily working more than they were (which is the thesis of the "second shift" theory):

[R]esearchers who have looked at time-use data say the second-shift theory misses an important detail. Women are not actually working more than they were 30 or 40 years ago. They are instead doing different kinds of work. They’re spending more time on paid work and less on cleaning and cooking.

What has changed — and what seems to be the most likely explanation for the happiness trends — is that women now have a much longer to-do list than they once did (including helping their aging parents). They can’t possibly get it all done, and many end up feeling as if they are somehow falling short.

Mr. Krueger’s data, for instance, shows that the average time devoted to dusting has fallen significantly in recent decades. There haven’t been any dust-related technological breakthroughs, so houses are probably just dirtier than they used to be. I imagine that the new American dustiness affects women’s happiness more than men’s.

Ms. Stevenson [one of the researchers] was recently having drinks with a business school graduate who came up with a nice way of summarizing the problem. Her mother’s goals in life, the student said, were to have a beautiful garden, a well-kept house and well-adjusted children who did well in school. “I sort of want all those things, too,” the student said, as Ms. Stevenson recalled, “but I also want to have a great career and have an impact on the broader world.”

Friday, September 21, 2007

Thinking About CST & Markets (or "Friday Night at Gate C24")

By Rob Vischer

Today I (along with MoJers Patrick Brennan, Susan Stabile, Eduardo Penalver, and Mark Sargent) had the wonderful fortune to participate in the latest installment of Villanova's ongoing exploration of CST and the law at a conference titled, Catholic Social Teaching on the Market, the State, and the Law.  The conversations were much too rich to capture in a single blog post -- and indeed, I did not planning on blogging about it now, but my sixth hour in the Philly airport has led me to brainstorm new ways to pass the time -- but I'll try to convey the flavor of the day by focusing on one exchange that took place on one panel.

St. John's University (Minn.) economics prof Dan Finn kicked things off by setting forth "10 heresies that tempt neo-cons to stray from CST."  I won't list them all, but I will mention four of his points:  First, he pushed back against the suggestion that when solidarity is pursued by society via the law's coercive power, it becomes morally empty.  Instead, Finn challenged us to recognize that law can help virtue become a habit under certain circumstances.  Second, he argued, against what he perceives as the libertarian challenge, that the voluntariness of exchange ensures justice; instead, the voluntariness of exchange simply ensures mutual advantage.   Third, he suggested that instead of referring to government's "intervention" in the market, we could more helpfully refer to government's "structuring" of the market.  Fourth, he wondered why neo-cons tend to take particular failures of government regulation as evidence that government regulation does not work, but rarely take particular failures of the market as evidence that markets do not work.  For example, according to Finn, neo-cons blame public school failures on the government (rather than on individuals), but they blame consumerism on individuals (rather than on the market).

Villanova law prof Robert Miller responded by agreeing that all of Finn's asserted "heresies" are erroneous views of a just economic order, but he asserted that the vast majority of libertarians/neo-cons would deny holding the views attributed to them by Finn.  Tracing a variety of grounds on which Milton Friedman approved of state regulation of the economy, Miller essentially argued that Finn had erected a neo-con straw man.

Eduardo Penalver then provided a taxonomy of libertarianism in an effort to clarify the disagreement between Miller and Finn.  He contrasted a moral version of libertarianism under which the commitment to individualism is principled (found in the work of Ayn Rand and Robert Nozick, for example) from a consequentialist libertarianism grounded in the belief that less state intervention tends to produce better outcomes.  While Finn had challenged neo-cons on their principles, most neo-cons -- at least those who look to CST for guidance -- will resist the suggestion that their governing principles are drastically different from those traditionally espoused by CST.  The differences arise in the area of policy -- which practical measures will most effectively further CST principles?  In that regard, Eduardo challenged progressive Catholic theorists to undertake empirical work in an effort to verify the relationship between libertarian policies and CST principles.

Others can expand on (or correct) my recollection.  As always, thanks to Mark and his colleagues at Villanova for dedicating time, talent, and treasure to the Catholic legal theory project.

Previous Articles More Articles

Recent Posts

Categories

Monthly Archive