Mirror of Justice

Religiously Affilated Law Schools Conf at Baylor

Greetings from Waco after day one of the "Faith & Justice" Religiously Affiliated Law School Conference at Baylor Law School.  During the conversation about Justice and the Criminal Law, I realized how important it is for this bi-annual conference to rotate geographically.  In the midst of a presentation by Baylor Professor Brian Serr, it hit me how his framework (and I think it might be somewhat representative of the region) is to pose the question "How can my Christian framework be reconciled with the Constitution?"  I realized how starkly this contrasts with a "blue state" framework, which I think tends to ask "why not just work with the framework of dignity and human rights - why add in the Christian overlay at all?"  The discussion concluded with some reflection on the importance cultural context, of realizing who your audience is and speaking in a language that they can understand.... which I think then also adds to the case for diversity in various approaches to how religion is integrated into the curriculum - depending on the cultural characteristics of a given region and school. 

John Breen, Fr. Greg Kalscheur and I were part of a panel on Justice Within the Law School Curriculum, which took as its starting point John's article on Justice and Jesuit Legal Education, focusing especially on John's proposal that Jesuit law schools require a first year jurisprudence course that seriously engages the Catholic Tradition.  Since fellow MOJer expert blogger Rob Vischer is also here, I'll let him give the take on that. 

For me one of the highlights of the panel on Lying and Lawyers was Ellen Pryor's description of how she discusses the concepts of integrity, lying and self-deception in her Faith, Law & Morality course at SMU.  It seems that she has really found a way to help students both to grapple deeply with the intellectual principles, and reflect personally about what kind of lawyers they would like to become. 

The final session began with wonderment for the miracle that the biannual conference has come together every year without any formal structure, but realizing that now might be the time to form for RALS to organize itself into a more institutionalized and formalized structure.  To be continued...

Amy 

Expanding "the Gospel"

As readers of this blog have learned, I enjoy tracking signs of convergence between evangelicals and Catholics.  Today over at the leading evangelical blog, Joe Carter explains his view of the Gospel in terms that will likely sound much more familiar to Catholics than to his fellow evangelicals:

[B]iblical passages such as John 3:16 or Ephesians 2:4-6 are often referred to as “the gospel in a nutshell.” By referring to these verses we can provide a simple summation of the “gospel”, allowing us to “witness” to those with short-attention spans. But as life-altering, world-shatteringly important as those verses are—and I cannot overemphasize just how good that news is for us---the gospel cannot be squeezed into a “nutshell.”

Indeed, the entire universe is not large enough to contain the good news about Jesus! The gospel is more than just news for fallen man. Even if there were no anthropos or no cosmos the seraphim would still proclaim the good news about Christ. The gospel is greater than just the redemption of fallen human nature, greater than the redemption of all creation. The gospel is not about me and it is not about you. The gospel is the news in toto about the Savior, Redeemer, and Sustainer of creation: Jesus Christ.

The most serious threat to the gospel is, therefore, the attempts to limit the gospel about Jesus to a propositional truth, to a narrative, to a story, to a verse, a book, to a Bible, or to a million other “nutshells.” True, the gospel is contained in all of those forms. But any attempt to share the gospel that does not proceed from “the gospel is…” to “but the gospel is also…” is simply inadequate. Even if we were able to proclaim all the news that is contained in those nutshells, though, it would not exhaust the good news about Christ.

Rob

Bankruptcy Update

Via Open Book, an update on the Spokane diocese's bankruptcy proceedings (free registration req'd):

"I'm very concerned, obviously, about the fact that frankly every month this debtor goes further and further in the hole in terms of cash," U.S. Bankruptcy Judge Patricia Williams said during a hearing this week.

"That's a fact of life that is getting worse every single month and I ask myself periodically, you know, how many churches are we going to have to sell just because we can't get to plan confirmation?" Williams said.

Rob

"Is There a Natural Human Reason?"

Check out this program, presented by the Lumen Christi Institute in Chicago, on April 8, called "Is There a Natural Human Reason?":

This conference on "Is There a Natural Human Reason?" continues a series of Lumen Christi conferences reflecting upon philosophy and the Catholic intellectual tradition. It brings together leading Catholic philosophers in order to address a perennial philosophical question - the relation between nature and reason - that continues to shape decisively how we understand ourselves, others and the world around us.

The papers and discussion at this conference will pivot around the question whether there is an unconditioned natural reason or whether reason is determined by the context of a faith tradition or particular culture. Each of the main papers will address this fundamental question and bring it to bear on other contested issues in contemporary philosophy. How does our understanding of rationality relate to the possibility of public discourse in a pluralistic culture? Can reason credibly judge encounters between different religious traditions? How did ancient philosophy understand the process of reasoning in accordance with nature? On what grounds can we have any confidence in reason's capacity to arrive at truth?

Among the presenters are MOJ-friends and sometime-contributors John O'Callaghan and Russ Hittinger.

More on San Fran Fight

I posted yesterday on how the San Francisco board of supervisors ignore the other important issues besides homosexuality that the "Battle Cry" evangelical youth movement addresses: violence and casual sex in the media, mindless consumerism, etc.  Now this article in Sojourners, the left-wing evangelical magazine, also notes approvingly the range of problems that the Battle Cry attacks, but blames the group for starting the single-minded focus on the homosexuality fight by going to San Francisco in the first place:

If you want to make a symbolic stand, why not go to the town where Desperate Housewives is filmed? Or host the rally in New York City where Sex and the City is set. A gathering outside the studios of MTV also would be rich with symbolism.

I simply cannot understand why so many evangelicals consider same-sex marriage as the prime threat to the virtue of heterosexual families. Honestly, which has ruined more marriages: The extramarital affairs that are so brazenly celebrated on Desperate Housewives or the decision of two men or two women who love each other to make their lifelong commitment public?

Can the point he raises, as far as it goes, really be denied: isn't there insufficient focus among traditionalist Christians today on problems like easy divorce, consumerism, etc., which directly involve or affect so many more people than same-sex marriage would?  I think that one can agree with this while still entering several caveats to the argument:  (1) To say that same-sex marriage is not as great a threat as other things does not entail that one can't still oppose same-sex marriage.  (2) The Battle Cry group apparently does attack the other problems as well; that they stage one of their rallies in San Francisco and focus on criticizing homosexual behavior does not mean that's their only focus overall.  (3) If you're choosing hedonistic places in which to protest, San Francisco has had its share of public hedonism to rival New York and LA; it's hardly been all "lifelong committ[ed]," nesting couples.

Tom

Thinking About Pardons in This Penitential Season

During this period of Lent, as we reflect upon our sins, repent, and receive the gift of pardon from our Heavenly Father, it is an appropriate time as well to reflect upon the increasingly neglected role of mercy, of forgiveness in our criminal justice system.

Margaret Colgate Love, probably the nation’s leading expert on executive clemency, has published a piece, “Reviving the Benign Prerogative of Pardoning,” in the latest issue of Litigation (Winter 2006), the magazine of the American Bar Association’s Section on Litigation. If you are an ABA member, you can access the article at this link. Otherwise, the Litigation journal should be available in almost any law library.

Ms. Love begins the article in this way:

Pardon is a mysterious, alien presence that hovers outside the legal system. It is capable of undoing years of criminal investigation and prosecution at the stroke of a pen, but it is of questionable present-day relevance even for criminal law practitioners. Pardon is like a lightning strike or a winning lottery ticket, associated with end-of-term scandals and holiday gift giving. It is capricious, unaccountable, inaccessible to ordinary people, easily corrupted, and regarded with deep suspicion by politicians and the public alike. To the extent that scholars think about it, pardon is regarded as a constitutional anomaly, not part of the checks-and-balances package, a remnant of tribal kingship tucked into Article II that has no respectable role in a democracy. One of pardon’s few friends in the academy, Daniel T. Kobil, has called it “a living fossil.”

Unkindest cut of all, pardon is not taken very seriously as an instrument of government. Even President Clinton’s final pardons now are recalled more as an embarrassing lapse of judgment than as a genuine abuse of power. His successor’s pardoning has been meager and meaningless. A lot of state governors don’t use their pardon power at all.

Ms. Love outlines how the exercise of clemency, both at the federal and state levels, has declined sharply since the 1970s. At the federal level, the percentage of pardon petitions acted favorably by Presidents Franklin Roosevelt through Jimmy Carter was about 30 percent, but since has dropped to but a handful. She identifies this decline as being attributable to the theory of just desserts in which the retributivist philosophy was hostile to clemency, the politics of crime which made it politically risky for politicians to offer pardon to criminals, and the hostility of prosecutors who opposed the loss of control over criminal matters that comes with executive consideration of pardon petitions. Yet, Ms. Love concludes that “there is a compelling present need for pardon because the criminal justice system has never been more harsh and unforgiving.”

[In the past, I have written more circumspectly about the pardon power, in the wake of President Clinton’s astonishingly misguided pardons on the eve of his departure from office (available at this link). While my concerns about abuses remain well-taken, I still think, my past writing did not do justice – pun intended – to the importance of mercy, through clemency and otherwise, in the criminal justice system.]

We Catholics are often said, with tongue only partly in cheek, that we know a great deal about guilt. But we also know much about reconciliation and forgiveness. Reviving what Alexander Hamilton in Federalist 74 called the “benign prerogative” by which “the mercy of the government” is extended ought to be a central part of any Catholic jurisprudence.

Greg Sisk

Parish closings in New York

Today's Times has a story about the announced plans to close 31 parishes and 14 schools in the New York archdiocese.  Two really quick thoughts:  First, it is interesting to note how big, relatively speaking, the attendance figures are that are presented, in the context of this story, as small.  The Church of the Nativity, for instance, is described as having a dwindling attendance -- down to about 400.  But, 400 is a lot of people, isn't it?  If I remember, doesn't 2,000 make a church a "mega-church"?  Also, I was happy to see that the story noted the fact -- sometimes omitted in stories that focus more on closings, dwindling attendance, secularization, and the priest-shortage -- that several new, very large parishes are opening (in this case, in suburbs).  I'm enough of an urbanist -- in sensibility, anyway -- to want to think that the old "lots of close-knit parishes in urban walkable communities" model is (somehow) better.  But, maybe not . . .

San Fran Fiasco, cont'd.

The San Francisco Chronicle scores a bullseye in criticizing the city officials' hostility toward the "Battle Cry" evangelical youth rally:

In fact, concern about heterosexual sex by unmarried youth gets equal treatment from the Battle Cry campaign. Its goal is to spread Christianity and to help young people recognize and resist the cultural influences of a "stealthy enemy" that includes "corporations, media conglomerates and purveyors of popular culture." Its Web site (www.battlecry.com) speaks of "casualties of war" that include drinking, drug use, teen sex, pornography, abortion, suicide and violence.

We may disagree with certain aspects of the Battle Cry agenda -- on issues such as abortion rights, religion in schools or acceptance of an individual's sexual orientation -- but the attempt by counterprotesters and some of the city's elected officials to call them "fascist" and "hateful" was totally at odds with the tone of the ballpark event and the approach of the Web site.

Set aside the issue whether calling homosexual acts immoral, as the Battle Cry youth do, is intolerant (a legitimate point of debate) or "fascist" (a stretch).  The striking thing to me, and to the Chronicle, is how the city officials' focus on that issue alone obliterates, for them, everything else the evangelical group says -- every criticism the group makes of threats like youth violence, superficial sex in the media, and empty commercialism, things that traditionalists and progressives ought to be able to fight working together.

Tom

The Faith-Based Initiative, "Kneecapped" by the White House

Very good people have worked and are working on President Bush's "faith-based initiative," but the evidence continues to mount that the administration as a whole views it as a rhetorical ploy to woo religious voters rather than a serious effort to address social needs (see previous post here).  Amy Sullivan in The New Republic gives an update:

The real story, however, is not how immense the faith-based initiative is, but how small.  The federal government distributed approximately $2 billion in grants to faith-based organizations in fiscal year 2005, a number that seems large but is not actually much different than the funding that groups like Catholic Charities and Habitat for Humanity received before Bush took office. . . .  It is increasingly clear that only a handful of people in the administration view the program as anything other than a political tool to attract support from black religious leaders and to mollify the party's evangelical base.  And now, even the program's most enthusiastic supporter on the Hill [Rep. Mark Souder (R-IN)] has pronounced it a sham. . . .

[At a recent hearing, Souder] ticked off for his audience the ways in which White House officials had kneecapped the initiative. . . .  [Souder also charged] that congressional Republicans are unwilling to increase funds for social services because the recipients of those funds might be organizations in urban, Democratic districts.

Tom

UPDATE:  Bryan McGraw, fellow at the Erasmus Institute at Notre Dame, writes to agree with my criticisms of much of the Bush administration but adds:  "[I] it’s worth noting, I think, that part of the reason for the smallness of the program lies in bureaucratic resistance in places like HUD, HHS, etc."  True; and one can also lay blame at the feet of some Democrats and interest groups that have fought the initiative tooth and nail.  I also agree with Bryan that some White House staff take the program seriously (like the President's chief wordsmith) -- and I want to emphasize that I mean no criticism of the many people (including friends of mine) who have worked tirelessly on this program to boost the ability of faith-based and community services to help others.  But John D'Iulio, David Kuo, Mark Souder:  the voices are adding up, among social conservatives, toward the conclusion that the tax-cutting, budget-cutting, business-conscious -- and political -- side of Republicanism is frustrating the ideal of seriously assisting the needy through "compassionate conservatism."    

More on martyrdom

Regarding my recent post on the question whether it is "insane" to "embrace" "martyrdom", Professor Teresa Collett helpfully reminds me of some relevant passages (pars. 90-94) in Veritatis splendor (link).  Here is a quote from par. 92:

Martyrdom, accepted as an affirmation of the inviolability of the moral order, bears splendid witness both to the holiness of God's law and to the inviolability of the personal dignity of man, created in God's image and likeness. This dignity may never be disparaged or called into question, even with good intentions, whatever the difficulties involved. Jesus warns us most sternly: "What does it profit a man, to gain the whole world and forfeit his life? " (Mk 8:36).

Martyrdom rejects as false and illusory whatever "human meaning" one might claim to attribute, even in "exceptional" conditions, to an act morally evil in itself. Indeed, it even more clearly unmasks the true face of such an act: it is a violation of man's "humanity", in the one perpetrating it even before the one enduring it.  Hence martyrdom is also the exaltation of a person's perfect "humanity" and of true "life", as is attested by Saint Ignatius of Antioch, addressing the Christians of Rome, the place of his own martyrdom: "Have mercy on me, brethren: do not hold me back from living; do not wish that I die... Let me arrive at the pure light; once there I will be truly a man. Let me imitate the passion of my God".

To be clear:  My short post was intended to provoke questions about whether, given the view that is widespread today about the hobby-ness of religion, it is -- again, considered against the backdrop of this view -- "insane" even to accept, let alone seek out, martyrdom.  I hope no one assumed or concluded that I was endorsing this view by trying to provoke these questions.   

Bishop Vlazny v. Cardinal Newman Society

A recent issue of America included an editorial, "Measuring Catholic Identity," praising Bishop Vlazny of Portland, Oregon for his sharply critical letter to the "ecclesiastical advisors" of the Cardinal Newman Society.  According to the editorial:

The Bishops and Presidents Committee “has regularly monitored the publications and positions of the Cardinal Newman Society,” Archbishop Vlazny notes, “and has found them often aggressive, inaccurate, or lacking in balance.” The archbishop urges the ecclesiastical advisors to look more closely at the methods of the society, which the committee has found to be “often objectionable in substance and in tone,” misrepresenting the Catholic colleges and universities in the United States that it criticizes.

In the view of the editors of America, the Society has made the mistake of reducing Catholic identity to a litmus-test list of things a real Catholic university or college should not do:

The authenticity of an institution’s Catholic identity can be judged, as the Newman Society sees it, merely by what it does not do: no feminist drama, no unapproved speakers, no heterodox honorees, no support for homosexuals and no backing of left-leaning candidates.

The application of such negative litmus tests distorts and diminishes the importance of the Catholic identity and mission of a college or university. The vitality of life on a Catholic campus should be measured far more by the positive initiatives the institution takes than by the narrow boundaries it observes. The Catholic intellectual and religious tradition should be the source of programs and projects on Catholic campuses that other colleges and universities would have neither the interest nor the resources to promote.

Furthermore, a Catholic institution, confident in the strength of its traditions, will not retreat from the challenge of engaging competing ideas in the dialogue that is at the heart of a lively university culture. Many Catholic institutions have established programs and events that promote the dialogue between Catholic tradition and contemporary culture, between faith and science, that Ex Corde Ecclesiae identified as central to the mission of Catholic institutions. Happily the Bishops and Presidents Committee understands the importance of this mission.

Hmm.  Putting aside the question whether the criticisms or characterization of the Society's work and activities offered in the editorial or in Bishop Vlazny's letter (which I have not seen) are accurate, I take it we can all agree that Catholic identity at universities is about more than a check-list of no-no's or a program of adherence to conservative views; that "[t]he vitality of life on a Catholic campus should be measured . . . by the positive initiatives the institution takes [as well as] the narrow boundaries it observes"; and that "the Catholic intellectual and religious tradition should be the source of programs and projects on Catholic campuses that other colleges and universities would have neither the interest nor the resources to promote." 

Still, surely the "litmus test" items on which the Society is said to focus -- some of them, anyway? -- are relevant and important to the question of Catholic identity?  Also, is the point of the editorial to claim that (a) the Cardinal Newman Society's focus is too narrow; (b) the focus should be broader; and therefore, (c) "go away, stop worrying about Catholic identity issues at Catholic (and, especially, Jesuit) institutions because all is well"?  But is it enough to establish that Catholic universities are doing well to claim (fairly or not) that a vocal critic of Catholic universities has not always done well?  Do the editors of America -- even if they reasonably believe that the question whether things are going well can be reduced to the question whether the Vagina Monologues are being performed -- believe that things are going well?

Haldane on Dennett

A few weeks ago, there were several posts here at MOJ about Daniel Dennett's book, "Breaking the Spell:  Religion as Natural Phenomenon" (and also about Leon Wieseltier's review of that book).  A recent issue of Commonweal features this helpful review of "Breaking the Spell," by philosopher John Haldane.

Bottum on Baylor

Joseph Bottum reports on the continuing saga of Baylor's apparently abandoned effort to become a premier research institution with a meaningful Christian identity.  An interesting backdrop for this week's conference of religiously affiliated law schools.

Rob

A "Pro-Life Liberal" Passes

It's worth noting, even a bit tardily, the passing in March of Victor Rosenblum, one of that rare (?) breed of "pro-life liberals," who among many other distinctions in his career, argued and won Harris v. McRae, 448 U.S. 297 (1980), the decision allowing denials of funding for abortions.

To many liberals who have fought to keep abortion permissible under the law, Victor G. Rosenblum was something of an enigma. He was an avowed liberal Democrat who skillfully directed court and legislative battles to try to end the legality of abortion.

"Victor had an abiding faith, from the gut, about the sanctity of human life and that it extended into the womb," said Robert Bennett, a legal colleague who opposed his friend in court on the issue [in Harris]. "We never really had a philosophical discussion about it. I simply respected his belief."

See also this tribute at NRO.

Tom

"Unfathomable Zealotry"

Here is the Washington Post's Richard Cohen's take on the Abdul Rahman case:

"The world is too much with us," Wordsworth once wrote. This is certainly the way I feel. To be confronted on an almost daily basis with the horrors of Iraq is profoundly disturbing. The torture and decapitation of huge numbers of people, the casual homicides, the constant suicide bombings -- all of this makes you wonder about your fellow man. It is no longer possible, as it once was, to see the world only from your front porch, being disturbed only by the ringing of the bell on some passing ice cream truck. In Africa, Asia, too much of the world -- it is Joseph Conrad much of the time: "The horror! The horror!"

But you can say that these horrors are usually being inflicted by a minority. You say it is a few crazed terrorists of Iraq who are doing the killing. It is not most Iraqis. You can say the same about suicide bombers and torturers and rogue governments, like the one Saddam Hussein once headed. You can take solace in numbers. Most people are like us.

Then comes the Rahman case and it is not a solitary crazy prosecutor who brings the charge of apostasy but an entire society. It is not a single judge who would condemn the man but a culture. The Taliban are gone at gunpoint, their atrocities supposedly a thing of the past. In our boundless optimism, we consign them to the "too hard" file of horrors we cannot figure out: the Khmer Rouge, the Nazis, the communists of the Stalin period. Now, though, this awful thing returns and it is not just a single country that would kill a man for his beliefs but a huge swath of the world that would not protest. There can be only one conclusion: They were in agreement.

The groupthink of the Muslim world is frightening. I know there are exceptions -- many exceptions. But still it seems that a man could be killed for his religious beliefs and no one would say anything in protest. It is also frightening to confront how differently we in the West think about such matters and why the word "culture" is not always a mask for bigotry, but an honest statement of how things are. It is sometimes a bridge too far -- the leap that cannot be made. I can embrace an Afghan for his children, his work, even his piety -- all he shares with much of humanity. But when he insists that a convert must die, I am stunned into disbelief: Is this my fellow man?

Wojtyla on Marxism

The Tablet has an interesting article (registration req'd) on an early unpublished work by Karol Wojtyla criticizing, but not completely dismissing, Marxism.  Over at dotCommonweal, John McGreevy asserts that the article:

points us to one answer to Mark Sargent’s query about Catholic liberalism and its future: Catholic liberalism as on display in Commonweal remains committed to engagement with the various political and intellectual traditions that swirl around us, not merely the preservation of Catholic thought from alien invaders. Engagement does not mean capitulation, although this is always one risk. Instead it means approaching the world a bit like the young Karol Wojtyla, ready to listen as well as to proclaim.

Rob

Senate Committee Exempts Humanitarian Assistance to Immigrants

From the website of Senator Durbin:

The Senate Judiciary Committee today approved an amendment authored by U.S. Sen. Dick Durbin (D-IL) that would help ensure that charitable organizations and local churches would not be prosecuted for providing humanitarian assistance to an undocumented immigrant. Durbin's amendment was approved in a bipartisan vote of 10 to 7. . . .

Durbin said that while the original bill included an exception for humanitarian assistance, the exception only protected individuals, not organizations, like churches, hospitals, or schools. Furthermore, the exception only applied to aid provided in emergency situations and aid given without compensation.

Durbin’s amendment expands the humanitarian exception to cover organizations. It makes it clear that humanitarian assistance would include housing, counseling, and victim services. And it strikes the provisions that limit the humanitarian assistance exception to emergency situations and to assistance that is rendered without compensation. . . .

The U.S. Conference of Catholic Bishops sent a letter to every member of this Committee in support of the Durbin amendment.

HT: Howard Friedman (though it's not on his blog yet)

Tom

Building a Fellowship of Scholars in Catholic Legal Studies

If Catholic Legal Studies should succeed in becoming a distinct and meaningful movement within American jurisprudence in the coming decades, the symposium on “The Jurisprudential Legacy of John Paul II” at St. John’s University this past weekend will be remembered as a watershed event. Not only were each of the presentations wonderful contributions toward a jurisprudence grounded in Catholic social thought and the Catholic intellectual tradition, but the spirit of fellowship generated among all the participants was tangible and powerful. In this respect, the reception, dinner, luncheon, and closing Eucharist proved to be a vitally important opportunities to build community and strengthen personal and spiritual, as well as scholarly, ties among people of faith. While we experienced the great diversity of thought among Catholic intellectuals and legal scholars in this country, we were even more likely to see points of commonality emerging and to experience a palpable sense of common purpose.

At the end of his keynote address at the Friday luncheon, John Allen (the Vatican correspondent for the National Catholic Reporter) offered these closing words, which were a perfect summation of what we were about at the St. John’s symposium:

Those of you in this room have a vital role to play in bringing the best of Catholic moral and social reflection together with the highest standards of Western legal thought. As you move forward, I would like to leave you with a personal fervorino. I would urge you to wrestle with these questions in a spirit of genuine ecclesial communion, which in practical terms means, don’t just round up the usual suspects among the ideologically like-minded. The Church in the United States has been badly hobbled in attempts to respond to questions such as these, or anything else, by our deep ideological and tribal divisions. Catholic jurists and political theorists can set an example by fostering a conversation which is inclusive and respectful, but which also has teeth in insisting upon identifiably “Catholic” answers to our challenges. Looking over the speakers and topics for this conference, it’s obvious that you are already animated by that spirit. I would encourage you to be as imaginative as possible about how that model might be more widely diffused. If you can do that, you impact, like that of John Paul II, will transcend the boundaries of law and politics, and become a point of light for all of us.

As we rose to applaud these enlightening remarks, those of us who are participants on this blog (to a great or lesser degree of regularity) found ourselves looking around at each other and agreeing that John Allen’s charge — to “foster[] a conversation which is inclusive and respectful, but which also has teeth in insisting upon identifiably ‘Catholic’ answers to our challenges” — stated the mission as well of the Mirror of Justice.

Together with our Catholic “fellow-travelers” at a growing number of law schools and elsewhere in the academy, we who make up the larger Mirror of Justice community do have a unique opportunity in the coming years. We should strive to become something of a contradiction to society, which tends to group everyone on one or the other side of an ideological divide. What we heard and felt at the St. John’s symposium makes me greatly optimistic that we can have an impact on the legal and political culture and do so in unity while retaining our diversity of approach.

Greg Sisk

Is it "Insane" to "Embrace" "Martyrdom"?

Ann Althouse has an interesting post (check out the comments, too) on the Abdul Rahman case, and on what appears to have been the Afghan court's solution, i.e., dismissing the case on the ground that Rahman is mentally unfit.  At the end of her post, Professor Althouse identifies as a "useful idea" the idea that "anyone who embraces martyrdom for religion is insane."  Is this idea "useful"?  I suppose a lot depends on whether "embrac[ing] martyrdom" includes "refusing to abandon one's religion, even if one knows that the refusal will result in death."  Or, do we think that this is, actually, "insane"?

Strange Days . . .

A city official tells an organization planning to hold a rally to "get out" of the city.  The city's board of supervisors issues an official condemnation of the group, calling the rally an "act of provocation" that aims to "negatively influence" the city's politics.

Another public sighting of the Nazis?  The KKK?  Nope, an evangelical youth organization in San Francisco.

Rob

More on John Paul II

Another highlight from the St. John's conference was the panel featuring my colleague Lisa Schiltz, Widener law prof Randy Lee, Pepperdine law prof (and ordained rabbi) Sam Levine, and MoJ's own Amy Uelmen.  Lisa explored the work of John Paul II through the lens of feminism and dependency theory, particulary the work of Robin West and Alasdair MacIntyre.  Noting John Paul's emphasis on the identity-furthering value of care to the caregiver, she suggested that a dependency-based theory of justice that incorporates his work will have important, even radical, implications for our treatment of women in the workplace (and contrary to the caricature, the implications are not that women should be pushed out of the workplace) and our understanding of disability rights.  Amy pushed this theme further, relying on John Paul's teaching that the opportunity to love is a gift for the lover.

Randy Lee offered a thoughtful reflection on the difference between God's law, as the young Karol Wojtyla saw it in the lives of his Jewish neighbors, and man's law, as he experienced under the Nazi and communist regimes.  One important distinction Randy drew out is that God's law, in embodying a transcendent human dignity, will be founded in significant part on meaningful human community.  Sam Levine looked to the Hebrew scriptures relied on in John Paul's work to offer a thoughtful commentary on the relationship between mercy and justice. 

For anyone interested in Catholic legal theory, this conference's papers are a must-read once they are published.

Rob

Great headline

From today's Times:  "Christ the King Lives Up to National Reputation."

TNR on Fr. Neuhaus

The cover story of the latest issue of The New Republic is called "Without a Doubt:  The Christianizing of America."  The cover illustration features wax-model-type examples of various conservatives, who are on display before a curious young boy:  Fr. Neuhas ("theocon") with Vice-Presideny Cheney ("GenghisCon"), Ann Coulter ("BlondCon"), Jack Abramoff ("ConCon"), Paul Wolfowitz ("NeoCon"), and Pat Buchanan ("PaleoCon").  Clever. 

The long essay, written by Damon Linker -- who used to edit First Things and who is, I gather, writing a book about conservative Catholic intellectuals -- purports to be a review of Neuhaus's latest book, "Catholic Matters:  Confusion, Controversy, and the Splendor of Truth" (which I am reading right now).  Actually, it is a sweeping denunciation of (what Linker represents as) Neuhaus' work, influence, goals, and understanding of Catholicism; his alleged contributions to the rise of the so-called Religious Right; and his influence on contemporary conservativism(s).

Linker's well-written and lengthy essay is, in my view, almost entirely wrong, badly undermined by uncharitable misunderstandings, and largely uncomprehending.  True, I suppose one should be pleased when a magazine like The New Republic -- which I have been reading and enjoying for about 20 years -- devotes thousands of words, written by a smart person, to Catholic stuff, without suggesting that the Church caused the Holocaust or Pius XII was Hitler's Pope.  (Instead, as I mention below, the piece merely suggests that Neuhaus's views are not far from Bin Laden's).  The views of many of Fr. Neuhaus's critics will, I expect, be affirmed and validated; many of us who -- like me -- have read most of what Neuhaus has written during the last 20 years and found his work interesting, helpful, important, and even inspiring will be irritated, or worse. 

Obviously, reasonable and thoughtful people -- Catholics and non-Catholics -- can and do disagree with Neuhaus about all kinds of things.  I am sure there are good, helpful, critical reviews of Neuhaus's latest book in the works by engaged and informed Catholics and others who understand and are prepared to represent fairly and accurately -- even if they reject -- what it is that Neuhaus believes and proposes.  Such reviews and critiques -- pieces that are more than just patricide-on-display -- are entirely appropriate. 

But Linker -- even though, again, he knows and has worked with Neuhaus -- has not written such a review.  His blistering critiques would be powerful, if they were directed at a real person.  And, maybe they are . . . but that person is not Neuhaus.  At the end, things get nasty, and wacky:

[T]he America toward which Richard John Neuhaus wishes to lead us [is] an America in which eschatological panic is deliberately channeled into public life, in which moral and theological absolutists demonize the country's political institutions and make nonnegotiable public demands under the threat of sacralized revolutionary violence, in which citizens flee from the inner obligations of freedom and long to subordinate themselves to ecclesiastical authority, and in which traditionalist Christianity thoroughly dominates the nation's public life. All of which should serve as a potent reminder--as if, in an age marked by the bloody rise of theologically inspired politics in the Islamic world, we needed a reminder--that the strict separation of politics and religion is a rare, precious, and fragile achievement, one of America's most sublime achievements, and we should do everything in our power to preserve it. It is a large part of what makes America worth living in.

This is paranoid, insulting, ignorant nonsense.  The idea -- even the suggestion -- that Neuhaus's call to for a non-naked Public Square, and even his sharp denunciations of judicial overreaching in cases like Casey, is anything like, or takes us anywhere near, "the bloody rise of theologically inspired politics in the Islamic world," is ludicrous.  As for the claim that the only alternative to "the theologically inspired politics in the Islamic world" is "the strict separation of politics and religion", that "rare, precious, and fragile achievement" . . .  please.  We all can and should (and I'm sure Neuhaus does) happily endorse the "separation" of the institutions and authority of the Church from those of the State.  But, the "strict separation of religion and politics" for which Linker claims to long is only possible by suppressing either religion or politics.

More on John Paul II's Legacy

Thanks to both Rob Vischer and Michael Perry for their postings (here and here) on our conference the past two days on the Jurisprudential Legacy of Pope John Paul II.  I don't have time this morning to do a full run down of yesterdays three panels (and hope that one or more the MOJ participants will add some thoughts about those).  But I want to at least briefly mention some of the points raised in John Allen's keynote address (which will be included in the issue of the St. John's Journal of Catholic Legal Studies which publishes the papers from the confernce).

In his talk, Allen identified five areas of law and politics where he felt John Paul II's impact was felt most keenly, many of which we have debated here on Mirror of Justice: (1) the fallacy of legal positivism; (2) the intersection between faith and public policy; (3) human rights; (4) death penalty; and (5) international law and the use of force.  He also identified three open questions that the Catholic Church still has to come to terms with under the papacy of Benedict XVI: (1) Catholics and public life (referencing the controversy in the last election over refusing Eucharist to certain politicians); (2) just was vs. humanitarian intervention; and (3) Catholic institutions under civil law (referencing the recent question regarding Catholic Charities ability to deny placing children for adoption with same-sex couples).  My brief listing does not do justice to his talk, which was engaging, inspiring, and, at times, quite amusing (as he described his trips to some of the places John Paul II visited).   But is hopefully gives you a little taste of what we experienced and we will doubtless be engaging on many of these issues in more detail both in the blogosphere and in other conferences.

What a delight ...

... to have been with (among others) my fellow MOJ-bloggers at St. John's yesterday and the day before to discuss The Jurisprudential Legacy of John Paul II:  Robert Araujo, Mike Scaperlanda, Greg Sisk, Susan Stabile, Amy Uelman, and Rob Vischer (and fellow travelers like Lisa Schiltz).  It was a pleasure to be among you!  Thanks so much to Susan Stabile and Michael Simons for organizing and hosting the symposium--and to Rob Vischer for having the inspired idea for the symposium.  And congrats to all for a wonderfully successul gathering.

For those of you who couldn't be there:  The papers will be published in a forthcoming issue of the Journal of Catholic Legal Studies.
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"Darwin in Dover, PA," and metaphysics in high school

The April First Things includes a trenchant, short piece (still available only in paper), by my colleague Robert Miller, on what "Intelligent Design" is and is not.  Check it out.  In addition to explaining why "Intelligent Design" is not science (and therefore should not be advanced in "science" courses), it recommends as follows:  "I think public high schools ought to offer, at the senior level, a course in philosophy, including metaphysics.  The texts should include Aristotle and Aquinas on arguments for the existence of God but also criticisms of such arguments by Hume and Kant, as well as some contemporary philosophy of religion.  This would negate the impression, perhaps created in science classes, that science explains everything there is to explain about the universe."

The Jurisprudential Legacy of John Paul II

Today St. John's welcomed many MoJ-ers to its conference on the jurisprudential legacy of John Paul II.  The opening panel explored several interesting themes, but one common inquiry was the extent to which John Paul modeled a publicly accessible mode of cultural engagement.  Situating John Paul against the academic debates on religion's acceptability in public discourse, Greg Sisk emphasized the inseparable religious and political dimensions of the pontiff's prophetic ministry.  Robert Araujo, S.J. linked John Paul's embrace of the rule of law with the inherently moral norms underlying international law's expansion beyond the rules of war and peace to a more sustained and aspirational peace-building effort.  Rev. Gerald Twomey traced John Paul's evolving approach to the "preferential option for the poor" as evidence of John Paul's willingness to listen and learn from the real-world experiences of those with whom he came into contact. 

The question-and-answer session was especially lively: Fordham philosophy prof Joseph Koterski, S.J. and Michael Perry sparred over whether John Paul's message of human dignity was accessible in purely philosophical terms (Koterski says yes; Perry, no), and the panelists offered various takes on whether Catholic social thought is more or less effective, powerful and authentic when its theological foundations (e.g., the Incarnation) are not brought to the surface when its concepts are brought to bear on society.

This synopsis does not even begin to capture the richness of the discussion; I encourage others to chime in with their own perspectives of the day.  Other MoJers, including Amy Uelmen and Michael Scaperlanda, are on deck for tomorrow.

Rob

More scholarship on stem-cell research

Thanks to Steve for his stem-cell-research post.  Some other related work -- which I think is very helpful -- comes from my colleague, Carter Snead:  Here is the abstract for "The Pedagogical Significance of the Bush Stem Cell Policy" (Yale Journal of Health Policy, Law, and Ethics):

The enormous significance of the Bush stem cell funding policy has been evident since its inception. The announcement of the policy on August 9, 2001 marked the first time a U.S. president had ever taken up a matter of bioethical import as the sole subject of a major national policy address. Indeed, the August 9th speech was the President's first nationally televised policy address of any kind. Since then, the policy has been a constant focus of attention and discussion by political commentators, the print and broadcast media, advocacy organizations, scientists, elected officials, and candidates for all levels of office (including especially the 2004 Democratic nominee for President, Senator John Kerry, who made his opposition to the Bush policy a centerpiece of his domestic campaign, mentioning it explicitly in his acceptance speech at the Democratic National Convention). The biotechnology industry has taken a keen interest in stem cell research as a possible avenue for medical therapies; one study suggests that as of 2002 private sector companies had spent an aggregate of $208 million on research and development of stem cell technologies. In response to the policy, there has been a flurry of state legislation proposed and enacted, with some states affirming and others condemning the Administration's approach. Finally, the great prominence of the national and international debate on human cloning has drawn further attention to the issue of embryonic stem cell research (and by extension, the Bush policy), given that one application of somatic cell nuclear transfer is the production of cloned human embryos from which stem cells may be derived (so-called Therapeutic Cloning).

To date, the significance of the Bush stem cell policy has been framed and publicly debated in terms of its practical import: Does it impede the scientific and medical progress that the research seems to promise? Is it adequately protective and respectful of embryonic human life? Aside from its great practical significance, however, the Bush policy is arguably one of the most important recent legal developments for the field of bioethics for an additional reason: its deep pedagogical significance. The Bush policy provides an unparalleled window into the nature and substance of bioethical regulation within the unique framework of the American system of government. And it does so in dramatic fashion, against the backdrop of some of the most enduring and vexing questions in all of bioethics: What is owed to developing human life, and how does this obligation stand in relation to the aim of science to advance knowledge with the ultimate aspiration of alleviating human suffering? Reflecting on the nature and scope of the policy yields insights into a number of crucial matters that are central to the problem of whether and how to govern science and medicine according to bioethical principles. This Essay will briefly explore five areas in which the Bush policy is thus instructive: (1) the conceptual understanding of regulation as a legal category; (2) the principles of federalism; (3) the significance of federal funding; (4) the nature of governance according to a particular type of moral principle (e.g., bright line); and (5) the influence of political prudence and respect for pluralism.

And, here is a link to another paper by Snead, "Preparing the Groundwork for a Responsible Debate on Stem-Cell Research and Human Cloning":

The debate over both cloning and stem cell research has been intense and polarizing. It played a significant role in the recently completed presidential campaign, mentioned by both candidates on the stump, at both parties' conventions, and was even taken up directly during one of the presidential debates. The topic has been discussed and debated almost continuously by the members of the legal, scientific, medical, and public policy commentariat. I believe that it is a heartening tribute to our national polity that such a complex moral, ethical, and scientific issue has become a central focus of our political discourse. But, as you have no doubt noticed, the content of the discourse itself has been sometimes quite impoverished and unsatisfying. No one camp in this debate is solely to blame for these difficulties - partisans on all sides bear some measure of responsibility for the current state of the public discourse. In the interests of improving the quality of public deliberation and discussion on this matter, I will provide a few modest suggestions for how the public debate might be improved. I begin with a few general observations applicable to both domains under consideration today, stem cell research and cloning. Then I focus on each separately; first, directing my comments to stem cell research, and then turning to the distinct (though obviously closely related) matter of cloning.

Stem Cells

Four UCLA professors (including yours truly) were asked to do short comments on California Proposition 71, which set up funding of stem cell research, including programs here at UCLA. The UCLA magazine's website has published those opinions and has a reader poll where you can vote for the position most closely representing your own view. Here's my take:

"A key problem with this debate it that you have attractive and sympathetic spokespeople like [stem cell activist and UCLA grad student Candace] Coffee, whose stories play on our emotions. But who speaks for the unborn child? We only get one side of the story. The Catholic Church, of course, claims to speak for the fetus: ‘All human beings, from their mothers’ womb, belong to God who searches them and knows them, who forms them and knits them together with his own hands, who gazes on them when they are tiny shapeless embryos and already sees in them the adults of tomorrow whose days are numbered and whose vocation is even now written in the “book of life”’ (compare Psalms 139:1, 13-16) - Evangelium Vitae, 61.

“If you believe that human life begins at conception, as I do, creating human lives for the purpose of destroying them is an intrinsically evil act (as California’s Catholic bishops have made clear). Even if you believe human life begins sometime later than conception, however, you should still oppose Proposition 71. Stem cell research advocate Francis Fukuyama blasted Proposition 71 as ‘a huge, self-dealing giveaway of money from cash-strapped California taxpayers to a small group of institutions and companies that will remain largely unaccountable.’ California’s taxes are already among the highest in the country. Why then should California taxpayers who are opposed to the intentional destruction of human embryos in the name of scientific research be forced to subsidize venture capitalists, biotech companies and research institutions that already receive vast state and federal handouts?”

Also on the stem cell issue, my UCLA law colleagues Russell Korobkin and Stephen Munzer have just posted to SSRN a very detailed monograph on the law of stem cells, discussing "issues concerning the regulation of research, patent protection for stem cell innovations, informed consent of research subjects, and property rights in human tissue."

The Times on "Executing Christians"

So, a few days ago, in a post called "An Outrage in Afghanistan," I noted the case of Abdul Rahman, who apparently faces execution in Afghanistan for converting to Christianity.  (According to some more recent reports, he might end up being declared "mentally unfit", and therefore not subject to penalties for his apostasy).  Now I learn that the New York Times has an editorial today, called "Outrage in Afghanistan," about the same case, expressing (pretty much) the same views I did.  Hmmm . . . I'm getting nervous.

In all seriousness, though, this line in the editorial did raise some questions:  "Muslim leaders would also do well to condemn this strongly; those who continue to hold the teachings of Islam hostage to intolerance do grievous harm to their religion."  I'm not an expert on Islam, but I imagine that those who wrote the editorial aren't, either.  So, is the editorial's claim that, in fact, the call to execute Rahman for apostasy really is inconsistent with Islam, and so "Muslim leaders" -- in order to be good Muslims -- should condemn the call?  Or, is the claim that Muslim leaders should -- in order to be good citizens of the 21-st century secular world order -- condemn the call in order to help move Islam in a direction that the editors think Islam (and all religions) should go (i.e., away from "intolerance"?).

"A New Constitutional Order?"

The Fordham Law School is hosting, on March 24-25, what looks to be a remarkable Centennial Conference, entitled "A New Constitutional Order?"  (More info here).  The conference features nine different panels of speakers, on subjects like:  "The Rehnquist Court and Beyond:  Revolution, Counter-Revolution, or Mere Chastening of Constitutional Ambitions?", "Constitutions in Exile:  Is the Constitution a Charter of Negative Liberties or a Charter of Positive Benefits?"; and "Subnational Norms in the New Constitutional Order." 

One of the participants, I am happy to note, is our own Eduardo Penalver.

More on Murdering for God

Lest we feel squeamish about condemning the Afghan religious impulse to murder a Christian convert, out of either excessive deference to a strongly-felt religious compulsion or weak-kneed reluctance to impose "Western" values, we should note the following argument by Slavoj Zizek, the well-known (but hard to classify) Slovenian philosopher, who succeeds in making atheism look good by comparison:

FOR centuries, we have been told that without religion we are no more than egotistic animals fighting for our share, our only morality that of a pack of wolves; only religion, it is said, can elevate us to a higher spiritual level. Today, when religion is emerging as the wellspring of murderous violence around the world, assurances that Christian or Muslim or Hindu fundamentalists are only abusing and perverting the noble spiritual messages of their creeds ring increasingly hollow. What about restoring the dignity of atheism, one of Europe's greatest legacies and perhaps our only chance for peace?

1. More than a century ago, in "The Brothers Karamazov" and other works, Dostoyevsky warned against the dangers of godless moral nihilism, arguing in essence that if God doesn't exist, then everything is permitted. The French philosopher André Glucksmann even applied Dostoyevsky's critique of godless nihilism to 9/11, as the title of his book, "Dostoyevsky in Manhattan," suggests.

This argument couldn't have been more wrong: the lesson of today's terrorism is that if God exists, then everything, including blowing up thousands of innocent bystanders, is permitted - at least to those who claim to act directly on behalf of God, since, clearly, a direct link to God justifies the violation of any merely human constraints and considerations. In short, fundamentalists have become no different than the "godless" Stalinist Communists, to whom everything was permitted since they perceived themselves as direct instruments of their divinity, the Historical Necessity of Progress Toward Communism.

During the Seventh Crusade, led by St. Louis, Yves le Breton reported how he once encountered an old woman who wandered down the street with a dish full of fire in her right hand and a bowl full of water in her left hand. Asked why she carried the two bowls, she answered that with the fire she would burn up Paradise until nothing remained of it,