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, April 11, 2007

Skepticism About Lawyers as Prophets

In response to my Shaffer-inspired suggestion that Christian lawyers should function as prophets, Joe Knippenberg wonders:

Does this mean that Christian lawyers (or perhaps Christians simply) ought always and everywhere to be in an adversarial relationship with the powers that be? Should they never be "judges" or "kings," but only prophets? I mean that question somewhat seriously. A judge or a king has a responsibility for the less than savory work of administering a fallen human order; prophets don’t. Do we want to train lawyers who are "too good" for the normal workings of a secular state, who are so pure in their pursuit of justice that they’re perhaps impatient with the rule of (imperfect human) law?

Great point, and one with which I still struggle.  Two comments: first, I don't think the lawyer-prophet needs to be disconnected from the real world.  But I do think the lawyer-prophet needs to value her witness over the maintenance of power for power's sake.  That's one problem with mainstream evangelicalism's close association with the GOP (and with mainline Protestantism's close association with the Dems).  Second, while this is an important issue to explore, in practical terms, it's not a pressing one.  Perhaps I've been reading too much Hauerwas, but I'm inclined to doubt whether Christian lawyers will ever suffer from being always and everywhere adversarial with the powers that be.  Humans -- and lawyers especially -- are drawn to power like moths to flame.  Today prophets in the legal profession are few and far between.  One day an overabundance of separatist and subversive Christian lawyers might become a phenomenon that needs to be addressed, but we're nowhere near that point now.  In all likelihood, presenting our students with the prophetic model may heighten their skepticism (in a healthy way), but it won't trump human nature and marketplace dynamics.

A related criticism of the lawyer-as-prophet model, raised by one of my seminar students last year after reading Shaffer's essay, is that the biblical prophets were called individually and unmistakably by God to that role.  There is no professional class of prophets.  Is it possible to speak categorically of Christian lawyers and the substance of their calling?

What Can We Learn From Monica Goodling?

By invoking her Fifth Amendment privilege against self-incrimination in the wake of the US attorney firings, former DOJ official Monica Goodling has brought quite a bit of attention to her alma mater, Regent University Law School.  The New York Times, in reporting her recent resignation, deemed it newsworthy that Goodling attended a law school founded by Pat Robertson and a college (Messiah) which, The Times commented, describes itself as being "committed to an embracing evangelical spirit."  The Boston Globe has now profiled Regent, reporting that its graduates' employment prospects have flourished under the Bush administration and suggesting that the prospects have turned on ideology more than quality.  An excerpt:

As the dean of a lower-ranked law school that benefited from the Bush administration's hiring practices, Jeffrey Brauch of Regent made no apologies in a recent interview for training students to understand what the law is today, and also to understand how legal rules should be changed to better reflect "eternal principles of justice," from divorce laws to abortion rights.  "We anticipate that many of our graduates are going to go and be change agents in society," Brauch said.

For those of us trying to build Christian law schools, the challenge is to help form lawyers who will be agents of change in society yet still bear witness against the corrupting influence of individual and institutional power.  Putting aside questions about the substance of the "eternal principles of justice" that Regent grads might be pursuing, how do we seek to shape lawyers in order to have influence without becoming part of the problem?  I don't know Monica Goodling, but I have no doubt that she intended to do God's work when she joined DOJ.  The lasting impression she leaves to the wider world, though, is of having behaved unethically in service to a political power play.  It is more in keeping with Jerry Falwell's understanding of a Christian lawyer ("We'll be as far to the right as Harvard is to the left.") than Tom Shaffer's, who calls lawyers to look to the biblical prophets as models.  As Shaffer puts it, believers have

an odd political theology -- a political order called into being by God, which political order is subject to repeated (even perpetual) subversion, systematic subversion set up and perpetuated by God.  God's subversives are the Prophets -- disinherited from political legitimacy, protesting, pointing to a Lord who "decisively intrudes, even against seemingly impenetrable institutions and orderings." Put in place by God to make power uncomfortable, not just for tyrants but also for legitimate rulers, rulers the Lord put in place to begin with.

(15 St. Thom. L. Rev. 469)  In a marketplace where power and influence are the coveted commodities and prestige-driven rankings are king, how can an institution facilitate the formation of lawyers as prophets?

Tuesday, April 10, 2007

Should the Pope Be More Positive About Iraq?

Was Pope Benedict adopting an unduly Eurocentric and pessimistic view when he stated, in his Easter message, that "nothing positive comes from Iraq, torn apart by continual slaughter as the civil population flees?"  Michael Novak says yes, characterizing the Pope's remarks as "a low point."  The positive developments that Novak sees, it seems, are the fact that Shiite cities are now open for feast days, the fact that American troops allowed an anti-American protest to proceed on Sunday, and the fact that 200 newspapers and magazines are being published now that did not exist under Saddam.  I guess it's hard for Benedict to focus on the newspaper industry in light of the daily body count

Christianity as Covenant: Jewish Perspective(s)

In honor of Passover and Easter, San Diego law prof Maimon Schwarzschild comments on a recent book by Orthodox Jewish theologian Irving Greenberg suggesting that Jews should consider Christianity an authentic covenant.  He also links to an interesting review of the book by an intellectual journal of mainstream Orthodoxy.  An excerpt from the review:

The thrust of this book is . . . the existence of multiple (or at least two) covenants between God and humanity. At the very time when God called upon the Jewish people to undertake enhanced responsibility for the destiny of the world, He broadened the constituency of His covenantal love by sending a signal, or a group of signals, that launched Christianity. Greenberg’s argument for this position is multifaceted: God’s love is not limited to a single group; all human beings are created in His image; Maimonides pointed to a divinely guided eschatological purpose in the establishment of Christianity as a religion grounded in the Jewish scriptures; the inevitable moral, intellectual, and religious distortions that result from restricting election to a single group can be corrected by other groups with different emphases.

The first three of these points are fully valid, and there is considerable truth in the fourth as well. Since Maimonides regarded the establishment of any new religion as illegitimate and saw Christianity in particular as avoda zara, his assertion that it is part of a divine plan for spreading knowledge of Torah raises evident difficulties. But he did say this, so that there exists a precedent for maintaining that God wanted Christianity to develop (though probably not in the precise form that it has taken), and I see no principled objection to speculation that would broaden the range of divine motives beyond the one that Maimonides proposed. To apply the language of covenant, however, is not consonant with biblical teaching or Jewish tradition.

Friday, April 6, 2007

Same-Sex Couples and Communion

A lesbian couple in Wyoming has been denied communion by the local bishop after going public with their opposition to a state ban on gay marriage:

[One of the women] questioned why Catholics having premarital sex and using birth control are not barred from receiving Communion, too. But the parish priest said the difference is this: The other Catholics are "not going around broadcasting, `Hey I'm having sex outside of marriage' or `I'm using birth control.'"

As same-sex couples become more accepted in society -- and thus more open about the nature of their relationships -- I wonder whether their exclusion from communion will become more commonplace, or whether such couples will leave the Church before they have to be told.

Catholic Identity at Georgetown

Georgetown Law School has denied funding for a student with an internship at Planned Parenthood.  The student complains that:

“When we apply to Georgetown Law, the most you hear about the Jesuit tradition is that [the school] supports students doing work in the public interest . . . If I ever knew that taking part in women’s rights issues would lead to a chilling effect, I don’t know if I would have ever considered coming here.”

The school reportedly helped the student find an outside group that could fund her work.  (HT: Leiter)

Carpenter Responds

Dale Carpenter responds to David Blankenhorn's insistence that support for gay marriage correlates meaningfully with a weakening of marriage as a social institution, and that proponents of gay marriage intend to weaken marriage as a social institution.

Thursday, April 5, 2007

Called to be Witnesses or Philosophers?

I realize that Stanley Hauerwas would not embrace every premise of the Catholic legal theory project, but I find this passage from A Community of Character to be a helpful reminder of the significance that the story of Easter has for us Christians:

The task of the Christian is not to defeat relativism by argument but to witness to a God who requires confrontation.  Too often the epistemological and moral presuppositions behind the Christian command to be a witness to such a God have been overlooked.  The command to witness is not based on the assumption that we are in possession of a universal truth which others must also 'implicitly' possess or have sinfully rejected.  If such a truth existed, we would not be called upon to be witnesses, but philosophers.  Rather the command to be a witness is based on the presupposition that we only come to the truth through the process of being confronted by the truth.

Wednesday, April 4, 2007

Is the Same-Sex Marriage Movement Anti-Marriage?

Last week I posted Dale Carpenter's critique of David Blankenhorn's new book, The Future of Marriage.  Carpenter made two basic points: first, the correlation between countries' embrace of gay marriage and the weakening of marriage as a social institution does not establish causation between those two phenomena; second, Blankenhorn's quotation of gay marriage supporters who would like to destroy marriage as a social institution does not mean that the entire movement for gay marriage is premised on a desire to destroy marriage as a social institution.  Now Blankenhorn responds to Carpenter's critique.  On the correlation vs. causation point, Blankenhorn writes:

Here is a causal assertion:  Cigarette smoking causes lung cancer.  But wait a minute!  Do all cigarette smokers get lung cancer?  Is everyone who gets lung cancer a smoker?  Of course not.  So all we have is a correlation.  There is no beyond-any-doubt proof of causation.  Therefore, it is illegitimate for anyone to suggest that smoking causes lung cancer.  See how easy it is?  The tobacco industry made this exact argument for many decades, and some in the industry still do make this ludicrous claim.

It is ludicrous because our common sense observations in many societies over many decades, backed up by a great number of careful studies, have convinced almost everyone by now that the demonstrated correlations between smoking and lung cancer are not spurious or merely coincidental, but in fact are causal. 

In my article, I lay out new evidence strongly suggesting that, around the world, a cluster of marriage-weakening trends and attitudes (one of which is the embrace of gay marriage) hang together and appear to be mutually reinforcing.  No, I cannot prove causation beyond any doubt (no one could); and no, scholars cannot measure with scientific precision the exact degrees and instrumentalities of causation. But to me, the evidence suggesting mutual reinforcement, a kind of syndrome of related attitudes and behaviors — i.e., evidence suggesting some form of causation — is quite persuasive.  Carpenter is free to disagree, of course, but to be taken seriously, he needs to do more than simply repeat back to me that correlation does not prove causation.

I agree that statistical correlation should not necessarily preclude public policy conclusions, but I'm not sure that the comparison to smoking helps Blankenhorn's case much.  We have some understanding of the paths by which smoking actually leads to cancer.  It has never been made clear (at least to me) what the path is by which gay marriage will lead to the end of marriage as a social institution.  Undoubtedly, it will change the nature of marriage, but that's a different question.

As for the second point, Carpenter asserted that "many conservative supporters of gay marriage" also believe that:

(1) marriage is not an outdated institution, (2) divorce should be made harder to get, (3) adultery should be discouraged and perhaps penalized in some fashion, (4) it is better for children to be born within marriage than without, (5) it is better for a committed couple to get married than to stay unmarried, (6) it is better for children to be raised by two parents rather than one, and so on.

Blankenhorn asks Carpenter to name one supporter of gay marriage who holds those beliefs, explaining: "I am not saying that no such person exists.  But, to the best of my knowledge, I have never come across such a person."  I'm fairly certain that such people do exist.  Indeed, I thought the whole reason why Blankenhorn's Institute for American Values issued Marriage and the Law: A Statement of Principles without addressing gay marriage is because many of the signatory scholars wanted to speak in support of marriage as a social institution without condemning gay marriage.  Here's an excerpt from that document's executive summary:

We do not all agree on individual issues, from the best way to reform unilateral divorce to whether and how the law should be altered to benefit same-sex couples.  We do agree that the conceptual models of marriage used by many advocates are inadequate and thus contribute to the erosion of a marriage culture in the United States.  We seek to work across the divisive issue of gay marriage to affirm the basic importance of marriage to our children and to our society.  We call on all the makers of family law -- legislators, judges, the family law bar, and legal scholars who create the climate in which other players operate -- to develop a deeper understanding of and commitment to marriage as a social institution.

Tuesday, April 3, 2007

Subsidiarity Within the Church

Thanks to Rick for posting Fr. Williams' interesting op-ed linking the U.S. Bishops' condemnation of Daniel Maguire's teaching with a reinvigorated subsidiarity.  I occasionally encounter resistance from students on subsidiarity that runs along the lines of -- "why should we respect the Church's insistence on a principle that it ignores in its own operation?"  Part of the answer, as Patrick would emphasize, arises from a proper understanding of what a body's given responsibility is, and some responsibilities are given to Rome.  (Of course, the debate over whether a responsibility has been given by God or grabbed by humans is not always easy to resolve.  Who gets to decide which gifts have been given to which body?)  Still, I thought about subsidiarity while reading Sacramentum Caritatis.  For example, Pope Benedict instructs us that the exchange of peace should be restricted "to one's immediate neighbours."  Perhaps the pope is prudently charged with instruction on all things related to the Eucharist, but it strikes me as a relatively minor example of practices that breed the over-centralization charge.