Mirror of Justice

Chris Eberle Responds to Andy Koppelman, A Second Time

Here is Chris's first response to Andy Koppelman.

Here is Andy's reply.

Now, Chris responds again:

The claim that human beings have inherent dignity by virtue of their being loved by God does not commit me to deducing a normative conclusion from exclusively factual premises.  Certainly not to deducing any conclusion about moral 'obligation' solely from factual premises.  After all, the claim that each human being has inherent dignity is a claim about excellence or goodness, not obligation, and so cannot violate the no ought from is dictum (which I accept in some formulation).

Nevertheless, the claim that the inherent dignity of each human being is grounded on the property of being loved by God does involve some claim about the supervenience of the moral on the non-moral, viz., that all moral/normative properties are grounded on some sufficient non-moral features.  (They are not deduced from, they are metaphysically grounded on, non-moral properties.)  So, for example, a person who has the virtue of courage has that virtue *by virtue* of her having some other features that are distinct from the virtue itself -- a set of dispositions or habits that enable her reliably to respond to danger in such and such specified ways.  Possession of those habits or dispitions grounds the virtue -- a person's possession of those features is what makes it the case that she has the virtue of courage.  People don't just have the virtue of courage, full stop.  They have that virtue *by virtue* of something else.

Similarly for inherent dignity -- if human beings have inherent dignity, then they have it by virtue of some property they share -- some property distinct from inherent dignity itself.  Of course, you might deny that all human beings have inherent dignity -- there's a long a venerable tradition of doing so.  And then you'll not be interested in Michael's position -- he *assumes* that people have inherent worth and then asks -- by virtue of what do they have that most wonderful property?  He gives a theistic answer to that question.  Perhaps that is wrong.  Fair enough.  Then we'll want to know what does make it the case that human beings have inherent dignity -- what plausible secular account if there for that property?  Presumably secularists, and even those who affirm the dictum that we can't derive an ought from an is, will want to say something about what it is about human beings by virtue of which they have inherent worth -- even if they are satisfied by the claim that inherent worth supervenes on membership in the human species.

So, in short, Andrew's appeal to the claim that we can't derive an ought from an is, or a good from an is, doesn't settle the question to which Perry provides his theistic answer since the issue has nothing to do with  inferences or deductions in the first place.

Church Governance and Church Unity

I have a slightly different reaction to Steve B's question than Fr. Araujo.  I think it's impossible to take the position that Henry VIII's split from Rome or the schism of the East from West, or the Protestant Reformation, were somehow not schisms within Catholicism.  That is to say, the RC Church has its history of disunion, notwithstanding (and, indeed, at times precisely because of) its rigidly hierarchical structure or the pretensions of the successors of Peter.  As Hans Kung (I think) has observed, too rigid an insistence unity can be just as destabilizing as an utter lack of concern for it.  That said, I have no doubt that the more centralized organizational structure of the Catholic Church is in part responsible for its relative stability. 

But I would add to that explanation a difference in the way Catholics and Protestants relate to their respective churches.  It has long seemed to me that Protestants view their denominational affiliation far more as a choice than do Catholics.  This fact would seem to explain the phenomenon of the Catholics Fr. Araujo describes (a category into which I no doubt fall as well) who insist on calling themselves Catholic even though they don't agree with everything said by the successor of Peter.   I am Catholic (although perhaps, based on what he says in his post and what he knows of my views, Fr. Araujo disagrees with that statement), and (I'm quite sure Fr. Araujo would disagree with this) I believe  I would continue to be Catholic in some sense even if I attempted to completely sever my ties to this Church into which I and my ancestors were born.  Even if Fr. Araujo is right and I'm wrong about the facts of the matter, this strong fidelity to the institution, this resistence to exit, even by people who disagree with the hierarchy at times and who might, were they from some other tradition, strike out on their own in search of a more congenial community (they're certainly out there), also contributes (as a behavioral matter) to the institutional stability of the Catholic Church.  I'm not sure this explanation depends on the Church's hierarchical nature, though the two explanations may not be wholly unrelated.  But this second explanation strikes me as sounding more in culture and identity than in organizational structure.   

Framework for the Human Rights Debate

In response to Fr. Araujo's post, Rob asks "[h]ow does a belief in God provide a framework for women's rights that is more capable of authoritatively and accessibly settling disputes over content than than the framework built by the atheist?"  He asks this question because of the elusiveness of answers within Christianity to human rights questions.

I offer two responses.  First, scripture, Tradition, the Magisterium, and natural law frame the debate for the Catholic because within the Catholic worldview these sources provide us access (as limited as it may be) to the Truthmaker who reveals to us by way of faith and reason that all human beings - woman included - possess inherent dignity by the very nature of their being.  From the materialist's viewpoint, there is no external truthmaker framing the debate.  In the adsence of a Truthmaker (in the absence of a purposeful and rational Universe), does the materialist have (can the materialist develop) a robust framework for the idea of inherent human dignity?  If so, what is it?  I can't say that I have followed every post in this thread here or on Balkinization, but so far, I haven't seen anyone attempt to build the case for a robust materialistic foundation for human rights.  Instead, what I have seen are attempts to deflate the theistic founadation.  To quote Chris Green, here, does the materialistic worldview have "any entities that could possibly provide ontological support for human rights and genuine morality"?  Is so, lets hear it.

Second, part of the problem, something I see at least implicitly in Rob's post, is the messiness of this whole business.  If a theistic worldview provides an objective basis upon which to build a human rights regime then why is it so difficult to know clearly the answers to specific human rights questions say, for example, with human rights for women? (Another problem is with our will - our ability to live by those answers once known, but I don't sense that this prompted Rob's question).  It seems to be part of the human condition that answers emerge only within history as we are confronted with new questions and new situations and that much disputation and confrontation is required to enlighten our minds and sharpen our thinking.  How often in the annals of history did a conquering culture step back, reflect on, and argue about the humanity and dignity of those conquered?  The fact that Spanish philosophers and theologians did so with respect the humanity and dignity of American Indians is amazing to me.  But, they could do so because they had a common philosophical and theological framework for the debate.  In We Hold These Truths, John Courtney Murray says that we can argue because we have a common foundation - we agree about the foundational issues.  Without a framework, without a robust foundation, we talk past each other and the framework for human rights is a matter of power and not truth.  In short, I wouldn't take the slowness or the messiness of operating within the framework as a reason to discredit the framework or question it vitality.

Why Unions Matter

Kevin Drum makes a nice, and frequently overlooked, point about why unions matter for reducing inequality.  The Church has gotten this for over a century:

If you're interested in government policies that actively favor the working and middle classes, you need to have some kind of substantial political interest group fighting on their side. That's Politics 101, and right now unions are pretty much all we've got. They aren't perfect, and they frequently act only in their own narrow self-interest, but without them there's no organized opposition to the agenda of corporations and the rich. Warts and all, they're worth supporting until something better comes along.

How is God relevant to the content of human rights?

I appreciate Fr. Araujo's contribution to the conversation on God and human rights, but his observation prompts a further question.  If God is "the objective source on which to rely to resolve the conflict" over the content of human rights, how do we discern what that source says without relying on highly subjective factors (our interpretation of Scripture, our culture, etc.)?  If you look at the heated battles among theists about human rights down through the centuries, it seems like the objectivity of God as a source of content is, at best, elusive.  (I am not at all questioning the fact that belief in God can provide a rich impetus to embrace human rights in general.)  It might help to use a specific example -- let's take women's rights.  How does a belief in God provide a framework for women's rights that is more capable of authoritatively and accessibly settling disputes over content than the framework built by the atheist?

The always interesting Ross Douthat ...

has something to say abut "Social Conservatism and Double Standards" (here):

"I understand that there's a difference, legally-speaking, between pleading guilty to a criminal offense and tacitly confessing to a crime you haven't - and probably won't - be charged with, but I still think it's unfortunate that Larry Craig might be forced to resign by his fellow Republicans, while David Vitter has apparently survived being outed as a client of a major D.C. prostitution ring. I agree with Megan that what Craig did was arguably a greater betrayal of his wife than what Vitter may have done, but from any social-conservative calculus (or at least my social-conservative calculus) prostitution has to be considered a greater social evil than cruising for gay sex in bathrooms. This relates to a point I fumbled through in my conversation with Mark yesterday - the unfortunate extent to which socially-conservative politicians have focused their fire on gays, because opposing gay rights was for a long time an 80-20 issue for the Right (though no longer), while studiously ignoring the various beams in heterosexuals' eyes. It's a hard pattern to break, but the GOP could find worse places to start than making sure that Vitter shares whatever political fate awaits Larry Craig."

Human Rights: Natural Rights versus Positive Rights

I would like to begin by thanking other MOJ contributors who have continued our discussion about human rights and their foundation. Clearly, this discussion is of vital interest to most people. I have little doubt that non-theist promoters of human rights maintain sincerely held convictions about the importance of human rights. But I should like to expand briefly upon my August 17^th posting in which I discussed the authorship of these rights.

A major difficulty with the atheistic outlook is the positivism on which it relies. While the atheist may acknowledge the existence of natural rights to which any human can claim, the issue remains one of authorship. For the atheist, it is solely the human intellect; however, for the theist, as I stated in my posting of August 17, it is God.

The principal disagreement between these two perspectives on natural rights involves authorship and the subsequent identity of essential rights. In both perspectives (i.e., atheistic and theistic), human reason plays a role. In the case of the atheistic perspective, human reason possesses a monopoly on identifying and defining the rights that belong to human nature. In the case of the theistic perspective, human reason has a non-exclusive role that must be complemented by God’s position as author of human rights.

This distinction becomes palpable in the contrast between the subjective and objective outlooks I mentioned in my August 17^th posting. An illustration of this difference follows: let us say two atheist advocates of human rights debate one another regarding what is constitutive of human rights. They rely solely on what their own intellect reveals to them (this does not preclude their intellect relying on that of another person or group of people, but it is ultimately their personal reason that determines the question). What happens when their respective views collide? They have no objective source upon which to rely to resolve the conflict. With the theist, on the other hand, there is the vital role of the objective source of human rights, i.e., God.

Perhaps this brief posting will prompt more discussion on this crucial topic having a key bearing on the work of MOJ.    RJA sj

Governance in the Catholic Church

Prof. Steve Bainbridge has raised some interesting and important points about ecclesial governance within the Episcopal Church and the future meeting with the Episcopal bishops and the Archbishop of Canterbury. Steve presents a most important question about whether the polity of the Catholic Church would insulate it from the fragmentation that appears to threaten the Episcopal Church..

First of all, the Episcopal Church is a product of division. A layman, specifically Henry the eighth of that name, decided that he would not owe allegiance to the successor of Peter nor would he be obedient to the Petrine Office. Once Henry disavowed obedience and allegiance, he had to control the structure that his schism produced. It appears that neither he nor his successors nor clerical partners could do this.

But, the Catholic Church remained separate, distinct, and foundationally undisturbed. With Peter, we are Catholic. Without him, we become something else.

I am mindful that there are those who consider themselves members of the Catholic Church but still challenge Peter while at the same time proclaiming their individual fidelity to the Church. But this perspective is not without its problems. The fact of the matter is that Christ Himself appointed Peter to be the Rock of the Church that He founded. Whether anyone elects to bear allegiance to Peter is up to himself or herself. Should this person decide to depart from this loyalty, he or she leaves the Church notwithstanding personal protestations to the contrary.

The governance of the Catholic Church is quite straightforward. For contemporary skeptics of my posting, I would recommend that they consult Lumen Gentium, the Dogmatic Constitution of the Church. As mentioned previously, Steve has raised an exceptional point, and I suggest that our discussion on his critical posting about why the Catholic Church is substantively different from the Episcopal communion must concentrate on the ecclesial structure of the Catholic Church as defined by Lumen Gentium.    RJA sj

More on the Crisis at Ave Maria

Ave Watch has posted more information on Dean Dobranski's efforts to revoke Prof. Steve Safranek's tenure.  The Dean's characterization of a complaint against Safranek greatly undermines the Dean's credibility.

Research on Church Governance and the Coming Anglican Implosion

Jordan Hylden muses on looming meeting between Archbishop of Canterbury Rowan Williams and the US Episcopal bishops. The prospects are ugly for anyone who cares about the health of the church universal, as the odds are high that either (1) the US Episcopal Church will leave (or be forced out of) the Anglican communion for refusing to comply with the requests made last year at the Tanzanian conference that the US Church stop consecrating actively gay bishops (meaning no more Gene Robinsons), stop formal blessings of same-sex unions, and provide space for those who dissent or (2) that the more conservative Southern Hemisphere provinces will pull out of the global Lambeth Conference.

As a Roman Catholic who studies organizations and governance, I'm curious as to whether there are specific aspects of the RC polity that help insulate it from this sort of break up. Does having a global hierarchy have advantages in promoting unity relative to national hierarchies? I'm mulling taking a break from corporate governance to think about this stuff, so constructive comments and references over at my blog would be welcome.

Labor Day

As we approach Labor Day, MOJ readers may be interested in reading the Labor Day Statement of the U.S. Catholic Bishops, which can be accessed here.   The statement reminds us that "the moral dimensions of work and workers' rights are at the core of our Catholic social tradition," and that too many workers, both in the United States and in the rest of the world, still lack decent wages and working conditions and many others do not have the opportunity to work at all.

The statement also addresses the failed debate on immigration reform, recognizing that "at is core, immigration is about workers who come to our land to try to better lives for themselves and their families by their labor."

Previous Labor Day statements of the U.S. Catholic Bishops are available here.

Chris Eberle Responds to Andy Koppelman

MOJ-friend (and philosopher extraordinaire) Chris Eberle responds below to Andy Koppelman's 8/29/07 post at Balkinization (here).  (Chris, you may remember, is the author of the state-of-the-art book, Religious Conviction in Liberal Politics (Cambridge, 2002).)  Chris speaks:

Andrew Koppelman (Balkinization, August 29) lays out four distinct formulations of the claim (A) that human rights morality lacks an adequate secular grounding -- epistemic, ontological, sociological, and historical.  Only the ontological construal of (A) seems to me to be of serious theoretical interest.  But Koppelman’s understanding of that ontological construal seems not to capture the sort of claim that you [i.e., Michael Perry] have been inclined to make.  (Or should I say, that sort of claim that I think you should make!) 

As I understand your position (and that developed by Nick Wolterstorff), crucial to human rights morality is the claim that each and every human being has ‘inherent dignity’ – sanctity, great worth, excellence.  It’s because each human being has inherent dignity that we ought to treat each human being as inviolable.  (I would say, it’s by virtue of the fact that each and every human being has great worth that each human being has a certain set of natural human rights.)  Now the natural question to ask at this point is – what is it about each and every human being by virtue of which s/he has this inherent dignity?  What property does each and every one of us possess by virtue of which each of us has great worth and yet equal worth?  Your view – Sarah’s view – is that it’s the property of being loved by God – that’s a relational property each human being has and has in equal ‘measure.’  Note that this is an ‘ontological’ claim – the issue is not how we know whether each human being is loved by God, or whether Christians were goaded to connect their belief about God’s love with rights-talk by their secular Enlightenment critics, or whether those who deny that God loves us can fulfill their moral obligations, but whether there is anything about each member of the human species by virtue of which each human being has this very special moral status.

The issue put to secularists is whether they can identify any non-theological property that can take the place of being loved by God.  Of course, secularists can just claim that inherent dignity just attached to humanity full stop.  But that’s a pretty unsatisfying position.  Rather, it’s natural to focus on capacities – for moral agency or rationality or such.   But these views are difficult to defend, so I think. (Long, long argument…..)

Note that one can claim that inherent dignity supervenes on some appropriate relational property each human being bears to God without in any way committing oneself to the Divine Command Theory (which is a theory about moral requirement, not human dignity) much less the more global claim that a materialist world doesn’t contain the sorts of entities that could make moral claims true.   The ontological issue raised by your variation on the rights-requires-religion claim is the comparatively narrow one of whether there really is anything about each human being that grounds our widespread sense that humans as such have some very special moral status. 

Note that you also want to raise a further question – one forced upon you by your commitment to internalism, viz., why we should care about the supposed relational facts at issue.  From my externalist perspective, the fact that human beings have great worth provides me with all the reason I need to treat them in a certain way.  But for you, that fact just raises a deeper question – why should the fact that each human being has inherent dignity have any claim on my actions?  That’s the issue I take you to focus on in your essay “Morality and Normativity.”

Christianity, Christendom, and Human Rights

In thinking about what Jack Balkin said, I suggest that Michael Scaperlanda, Charles Reid, and all of us ponder what the eminent philosopher Charles Taylor (who is Roman Catholic) has written.  Taylor argues that the "affirmation of universal human rights" that characterizes "modern liberal political culture" represents an "authentic development[] of the gospel . . ."  Taylor, A Catholic Modernity? 16 (Oxford, 1999).  But then Taylor goes on to make this sobering (to Catholics and other Christians) observation:

"[M]odern culture, in breaking with the structures and beliefs of Christendom, also carried certain facets of Christian life further than they ever were taken or could have been taken within Christendom.  In relation to the earlier forms of Christian culture, we have to face the humbling realization that the breakout was a necessary condition of the development."

Id.  For Taylor's elaboration of the point, with particular reference to modern liberal political culture's affirmation of universal human rights, see id. at 18-19.

The Medieval Foundations of Modern Human Rights

In light of Jack Balkin's assertion that modern theistically motivated human rights thinking grows out of the Enlightenment and my own inadequate response to Jack, I asked a couple of medievalists to comment on the medieval foundation of modern human rights.  I am thankful that law professor Charles Reid responded with this thougthtful post:

"One of the most basic features of theistic rights thought is a respect for the integrity of the human person.  I would submit that the modern vocabulary of natural rights/human rights has its origins in the twelfth and thirteenth centuries.  And standing behind this development is a sense of the person as capable of seeking for himself the goods of salvation.  Allow me to make the point indirectly, first, and then more directly:

My indirect argument would focus on the linguistic universe that came to surround rights in the thirteenth century.  The medieval canon lawyers began to list synonyms for the word “right” (ius).  These synonyms included:  Libertas (liberty); Potestas (power); Facultas (faculty or capacity); Immunitas (immunity or privilege).  These are the main synonyms although there were a few others also.  What the use of these synonyms allowed for was the development of a concept of the human person that was capable of self-direction.  This self-direction was capable of manifesting itself in a variety of contexts.  Some contexts would be quite mundane.  Take medieval elections:  The Church used elections to resolve an enormous number of problems – bishops were elected by cathedral chapters; cathedral chapters retained the power to vote on important decisions; guilds and sodalities voted on all sorts of business matters; and so on.  There is a vast number of papal decretals indicating that medieval elections were hotly contested.  The presupposition behind these elections, however, was constant:  that the person was capable of governing his own affairs in community with others.

Other acts of self-direction were quite profound.  The new rights vocabulary also allowed the canonists to speak of the right to make basic choices on how best to seek the spiritual development required to achieve salvation.  One had the liberty to seek a vocation to the priesthood (one did not have the right to compel a bishop to ordain one a priest, of course, only the right not to be impeded in this vocation by third parties).  The life of Thomas Aquinas contains a wonderful illustration of this:  Thomas’s family opposed his desire to become a Dominican friar; he was actually imprisoned by the family for a while.  But because he had a basic right to seek his vocation, his family eventually had to cease and desist in their efforts to impede his quest.

Not only in the area of religious vocation, but in the decision to marry, freedom became the constitutive element.  To marry, one had to exchange freely given consent.  Free consent became the foundational element of marriage.  Family coercion could and did serve to invalidate marital decisions.

These developments open the door to my “direct” argument:  in the schools of philosophy beginning in the latter twelfth century we see important parallel developments:  first, the human personality comes to be conceived of as possessing a basic volitional capacity.  The personality has the power of choice; and the power to be bound by those choices.  And, related to this, the human soul comes to be conceived of in highly individualized terms.  An early medieval writer like Dionysius the Areopagite understood the soul upon death to become absorbed into a larger divine “godhead.”  Now, however, beginning in the twelfth century, we see a highly developed notion of individualized survival after death.  Not that it was not present before.  But it is much more highly developed beginning in the twelfth century.

And, this, then, allows lawyers and philosophers to take the final step:  to argue for the integrity of the person based on the possession of these rights.  Maxims of law were developed specifically for his purpose, most especially the maxim, that no one should be deprived of his right “sine culpa” – without fault.  And when we get this notion of due process, we stand at the door of modern conceptions of right.  And this notion of due process was firmly in place by the middle thirteenth century."

God's Warriors

Over at First Things, Nathaniel Peters reviews Christiane Amanpour's series, God's Warriors, which aired (to relatively high ratings) on CNN, and which Rick blogged about earlier.  Here's an excerpt from Peters:

When speaking in her own voice, Amanpour generally echoes the claims heard often in the media. In the first installment, for instance, she begins by defining the common trait of all three types: “They have in common . . . the belief that modern society has lost its way. They say that God is the answer. They want God part of their daily lives, back in the seat of power.”

Perhaps. And yet, except for that last clause, this definition describes many religious believers, not all of them extremists. There seemed to be few threads that connected God’s warriors, beside the fact that religion informed their politics to some degree. Indeed, Amanpour tends to over-generalize the parallels among the three groups she examines. She looks, for example, at the rules about skirt length and unsupervised Internet use for the Christian teenagers in BattleCry. These rules immediately remind Amanpour of the Taliban—although they are, in fact, little different from rules that one might find at any Christian school. Longer skirts, one must note, do not automatically portend theocracy.

Jindal

Stephen B. and I may disagree on a number of issues, but we agree on this attack on Jindal.  I defend him at dotCommonweal here.

Affirmative Action in Law Schools Critiqued by USCRC

This is way off topic, but since all of us are academics and most of our readers probably have an interest in legal education, it might be worth noting that the US Civil Rights Commission today issued a very critical report on affirmative action in law schools that relies heavily on the work of my UCLA colleague Rick Sander.

Defending Bobby Jindal

Bobby Jindal is a former Rhodes Scholar who had scholarly aspirations before going into politics. He's currently running for Governor of Louisiana and recently came under attack for some Catholic apologetic juvenalia. I defended him here.

What Ground for the Morality of Human Rights?

Prompted (provoked?) by some misunderstandings, I decided to post a paper on SSRN a little sooner than I might have.  The title of the paper is Morality and Normativity.  The download link is below.  Here's the abstract:

I have explained why I am skeptical that there is a plausible secular ground for the morality of human rights. See Perry, TOWARD A THEORY OF HUMAN RIGHTS 1-29 (Cambridge, 2007). The blogosphere has recently yielded commentary--mainly, I think, at BALKINIZATION and MIRROR OF JUSTICE--on my argument. However, some of the commentary--in particular, by Brian Tamanaha and Andrew Koppelman--reflects serious misunderstandings of my argument.

1. My argument is not theistic. In the course of making my argument, I articulate a theistic position, which I attribute to someone named “Sarah”, but Sarah's position is not my argument. My argument is in part *about* Sarah's position—and also about some secular positions. 2. It is not as a theist that I make my argument. Indeed, some non-theists, such as Art Leff and Raimond Gaita, have made similar arguments. 3. Yes, some religious believers have been among the principal violators of human rights, and, yes, some theologies deny the claim that is at the heart of the morality of human rights, namely, that all human beings have inherent dignity. But my argument nowhere presupposes, claims, or hints to the contrary.

I hope that this paper, MORALITY AND NORMATIVITY, helps to clarify my argument. The paper--which I first presented at Fordham Law School as the Natural Law Colloquium Lecture (February 2007)--is my contribution to a symposium on the moral and legal philosophy of John Finnis. The symposium, which includes a response by Finnis, will be published in LEGAL THEORY.

As we all know, there is not just one morality in the world; there are many. By a "morality", I mean a claim or set of claims to the effect that human beings, either some or all, should live a certain sort of life--"should" in the sense of "have conclusive reason to". The morality Adolph Hitler espoused is radically different from the morality Mother Teresa espoused; nonetheless, each is a morality. "Hitler's 'morality' is not a morality," you reply, "because it is, to put it mildly, false. There is only one true morality, and Hitler's--least of all Hitler's--is not it!" To say that there are many moralities, however, is to say nothing about whether a particular morality--or indeed any morality--is true. There are many moralities--and the morality Hitler espoused is one of them. Of course, just as one can acknowledge that there are many moralities and reject every one of them as false, one can acknowledge that there are many moralities and affirm a particular morality as true--affirm as true, that is, the claim that one should live, that one has conclusive reason to live, the sort of life the morality claims one should live.

A morality may purport to be true for all human beings, by claiming that all human beings have conclusive reason to live the sort of life it claims all human beings should live. Or a morality may purport to be true only for some human beings. Either way, a morality may be false in one sense but partly true in another: Some, but only some, of the human beings for whom the morality purports to be true may have conclusive reason to live the sort of life the morality claims they should live. Conceivably, two (or more) moralities may both be true, or both be partly true, in this sense: One morality may be true for those, or for some of those, for whom it purports to be true, and another morality may be true for those, or for some of those, for whom it purports to be true.

Notice that it would beg the question to say to someone that the conclusive reason she has for living the sort of life a morality claims she should live is just that that sort of life is (for her) moral: The question is precisely whether the sort of life the morality claims she should live is (for her) truly moral; she wants to know whether in fact she has conclusive reason to live the sort of life the morality claims she should live.

The "ground of normativity" question--as I call it--can be asked about any morality; to ask it about a particular morality is simply to ask whether (and for whom) the morality is true and, if so, why--in virtue of what--it is true. Again, to say that a particular morality is true (for one) is to say that one should live--that one has conclusive reason to live--the sort of life the morality claims one should live; put another way, it is to say that one has conclusive reason to be(come) the sort of person who lives the sort of life the morality claims one should live. So to ask whether a particular morality is true is to ask what conclusive reason one has, if any, to live the sort of life the morality in question claims one should live. To ask the ground-of-normativity question about a particular morality is to ask what grounds the "should" in the morality's claim that one should live a certain sort of life; it is to ask why--in virtue of what--one should live that sort of life.

In this paper, I elaborate a particular, and particularly important, morality, which I call the morality of human rights (because, as I explain, it is the principal articulated morality that underlies the law of human rights). Next, I ask the gound-of-normativity question about the morality of human rights and proceed to elaborate a religious response. (It bears emphasis, first, that the religious response I elaborate—Sarah's response--specifically *rejects* the “divine command” conception of morality, and, second, that in the paper I do *not* argue that Sarah's response is [or is not] true or even plausible.) Then, after explaining why one might be skeptical that there is a plausible secular response to the question (i.e., to the question asked about the morality of human rights), I comment critically on some secular responses. Finally, I ask what difference it makes if there is no plausible secular response and if we reject any religious response.

There is no doubt plenty in this paper with which one can reasonably disagree, but the blogospheric commentary to which I referred above has not (yet) engaged—because it has misconceived--my argument.

Here's the download link:  http://ssrn.com/abstract=1009604

Ontology, Epistemology, and the Foundation of Human Rights

Ole Miss law professor Chris Green’s lively exchange in the comments to a post on Steve Bainbridge’s blog prompted me to write him to clarify my own thinking about how we present the theistic foundation for human rights in light of the Brian Tamanaha’s critique of Michael Perry's argument. (Rob Vischer's post, which started the discussion on MOJ, is here.)  Here is Chris’ response:

“Tamanaha's complaint is an epistemic one, and I think he's understanding the argument in those terms (understandably enough, since he's responding to Perry, who put the point in terms of a rational basis for human rights).  But I don't think we need our interlocutors to know things about God before we can point out problems for a materialistic worldview.  It's a legitimate point to say, hey, your worldview doesn't have any entities that could possibly provide ontological support for human rights and genuine morality, but mine does.  This might, indeed, be a reason to adopt a theistic worldview.

It's also possible that knowledge about God & the imago Dei & such would be a better route to knowledge about human rights and the content of morality.  But I think that even on a Christian view of things, the atheist has plenty of access to that sort of knowledge--the individual human conscience still testifies that certain behaviors are right or wrong, a la Romans 2:14-15, even though people suppress the truth about God, a la Romans 1:20-21.  For that reason, I wouldn't put the point as an epistemic one.  Of course, if I'm right that the ontology of materialism isn't rich enough to provide a basis for moral claims that are true in every possible world, then an atheist who accepts that ontology can't have as full a knowledge of the foundations for human rights as the theist can. But that lack of knowledge for the atheist or materialist is really parasitic on the poverty of his ontology, I think; it's not anything particularly related to knowledge.”

Inequality Revisited

We've had several discussions on this site about the possible problems with rising economic inequality, apart from increases in absolute levels of wealth.  I hope I'm not duplicating someone else's post here, but Cornell economist Robert H. Frank has come out with a great little paperback, entitled "Falling Behind," which makes a strong case that rising inequality can make people worse off, even when their standard of living is increasing in absolute terms.  Here's a link to the NY Times review.  The book is short and sweet, weighing in at a very readable 125 pages.  Frank brings together and distills a great deal of information to make his case.  (He has, for example, some wonderfully eye-popping charts contrasting the distribution of economic gains in the three decades after WWII with the distribution of economic gains in the last three decades of the 20th century.)  And his conclusions are very consistent, I think, with CST's insistence that inequality is an important concern in its own right.  Highly recommended.

UPDATE:  MOJ reader Patrick O'Donnell passed along these links to commentary on Robert Frank's latest book by Seton Hall law prof. (and also MOJ reader) Frank Pasquale over at Concurring Opinions.  Pasquale's commentaries are well worth reading, and I commend them to MOJ readers.  Pasquale takes issue with Frank's reliance on happiness surveys to make his argument that inequality makes people worse off.  I share Pasquale's basic concern, because I (like him) reject a subjectivist ethic and agree that envy is something to be discouraged.  Despite this (and I don't think Pasquale would disagree with me here), I think that Frank's argument ought to be recognized as an interesting and positive development within the field of economics because it takes neoclassical economic assumptions to task on their own subjectivist terms for neglecting an important dimension of human welfare (as they understand it).  I always like it when people are hoisted on their own petards, so kudos to Frank for that contribution.   But, even beyond that, I think the significance of the happiness data on which Frank relies may ultimately survive -- or at least be rehabilitated against -- Pasquale's important line of attack.  While envy might not be an edifying sentiment, it's a real and predictable one, and one whose incidence policymakers are justified in taking into account in crafting social policy.  Pasquale points towards objective consequences of inequality that he thinks are valid considerations for crafting social critique.  I agree with him that those consequences are real and important, but let's set them aside and focus on the more subjective consequences whose significance he questions.  Within a particular cultural context, or, given the breadth of Frank's data, a particular conception of (fallen) human nature, high degrees of inequality appear predictably to foster heightened degrees of envy and dissatisfaction within human socities.  And, in turn, those heightened degrees of envy (predictably) (1) foster materialist and consumerist arms races of the sort Frank describes, and (2) undermine social cohesiveness.  It seems to me that the (subjective) phenomena Frank is describing predictably yield (objectively) troubling social dynamics that are a proper subject of concern even for those of us who reject the notion that subjective feelings of happiness ought to be the central basis for evaluating social  structures.  I guess I'm saying that I agree with both Franks.  I agree with Frank Pasquale that what matters are objective criteria of human well being ,and I agree with Robert Frank that the  data on the relationship between inequality and subjective happiness is relevant.  These two positions are consistent, I think, because the subjective unhappiness/envy that arises from excessive inequality generates an objectively dysfunctional social order.

Thoughts on Ave Maria Law School

X-posted from PB.com:

We the undersigned alumni and other members of the Ave Maria School of Law community past and present, hereby strongly oppose the actions of the school's administration and Board of Governors in ejecting Professors Stephen Safranek, Philip Pucillo, and Edward Lyons from our community. The administration and Board have disregarded these professors' academic excellence, Catholic sensibility, ethical integrity, and personal sacrifice. Their ejection, widely recognized as a purge of faculty that disagree with the administration and Board on issues of governance and decision-making processes, is gravely injurious to our school's mission, seriously damaging to its reputation, and inconsistent with the principles of a Catholic academic community. The injury is exacerbated by the direct harm caused to students who are enrolled in these professors' classes and who are entering the grueling federal judicial clerkship application process, a process whose deadlines are imminent and whose miraculous success for our community has been largely due to these professors' tireless and irreplaceable efforts. We therefore implore the administration and Board to fully reinstate these professors before the fall semester begins.

(HT: Leiter) This petition was prompted by employment actions by the administration against the mentioned faculty, which had elicited a prior statement by "a majority of the faculty of Ave Maria School of law," expressing their

... profound sorrow regarding the deplorable treatment of tenured Professor Stephen J. Safranek at the hands of the administration of Ave Maria School of Law. Dean Bernard Dobranski has initiated the process to terminate Professor Safranek's tenure and the School has now suspended him without pay (as of September 15, 2007) during the termination process. We believe that it is critical to publicly disassociate ourselves from and condemn the administration's conduct.

I have been reluctant to comment on the Ave Maria situation in the past, because I do not know all the facts. I am still unwilling to take sides. Yet, as a Catholic legal academic, I now believe that the currect situation at Ave Maria is bringing both Catholicism and Catholic legal education into disrepute. To put it in the economic terms I am most comfortable with, what started out as a local dispute is now generating negative externalities affecting all of us with an interest in Catholic legal education. One prays that the contesting sides will join together and prayerfully seek reconciliation.

Koppelman on God and human rights

Over at Balkinization, Andy Koppelman has weighed in -- with this post, "The Partly Necessary God" -- to the Perry / Tamanaha / Vischer / Balkin / Araujo / etc. discussion on God and the morality of human rights.  (It strikes me that Andy's post works well in conversation with Michael Scaperlanda's, here.)

For starters, Andy takes it as having been "shown" that "religion isn't necessary to human rights" and also that religion is not "sufficient" for human rights (after all, "belief in God has sometimes produced massive human rights violations").  The latter point, certainly, is beyond dispute.  (It is, of course, not beyond dispute that theism has produced more or worse human rights violations than atheism.)  As for the former, I'm not sure.

I've never understood Michael's claim to be that "human rights" cannot exist, in positive law, or that they cannot be enforced through litigation or protected in law, without "religion."  As Andy puts it, referring to the "old gag about believing in adult baptism, all I can say is that 'I've seen it done.'"  One can litigate or decide well human-rights cases, and one can "believe" in human rights, and one can struggle and sacrifice for human rights, without being a theist.

But, I've understood (maybe I have him wrong) Michael's claim to be that "the morality of human rights" is one that proceeds from and -- to the extent it describes moral realities, rather than preferences or conventions -- depends on human-dignity claims that themselves depend on "religious" claims about the person.  That is, I understand Michael's point to be that, if it is not the case that, in some sense, we are created, sustained, and loved by God, then, at the end of the day, it is not the case that we have "human dignity" in the way that the "morality of human rights" assumes.  This point is not refuted, it seems to me, by the observation that some people believe in God, but disrespect human rights, or by the observation that some people disbelieve in God, and vindicate human rights.  The challenge, it seems to me, is to figure out whether what needs to be true in order for the morality of human rights to be founded in something other than preference or convention really is true. 

Now, one could concede this and still say that theism is not necessary, that -- say -- Kant will do.  (Assuming that Kantian morality does not itself depend on theism.)  And then, I guess, the question is whether we think that, all things considered, the theistic account of the foundations of the morality of human rights is, on the merits, more reasonable than the Kantian account.

At the end of the day -- and this was the point made several days ago by Rob -- the question remains whether it matters whether or not we should care whether or not the morality of human rights, as practiced and endorsed by non-theists, really requires theistic foundations.  Koppelman ends his post:

We should be grateful for allies, instead of complaining that my foundation is better than yours.

Maybe so.  Thoughts?

UPDATE:  Reader and law prof Chris Green writes: 

"The challenge, it seems to me, is to figure out whether what needs to be true in order for the morality of human rights to be founded in something other than preference or convention really is true."  Exactly right.

I've weighed in on Andy's last does-it-matter point a couple of times in the Balkinization threads here and here and here.  Here's a paraphrase of the last one: The general proposition that "believers and non-belivers should not attack the core beliefs of the other" (Tamanaha's restatement of Koppelman's admonition) seems self-referentially incoherent, at least if "attack" includes criticism, as it seems to in context.  That suggests that we shouldn't argue with each other about whether God exists. But that would only make sense if it doesn't matter much whether God exists, and lots of people have a core belief that (to put it mildly) it matters an awful lot whether God exists. So this suggestion itself seems to be attacking one of those people's core beliefs.

I also put up some thoughts on the Bainbridge blog here, defending at some length the thought that morality needs something like God that exists necessarily in order to undergird moral claims that are subject to challenge by hypothetical counterexample.

Law From a Catholic Lens

On the occasion of the publication of Recovering Self-Evident Truths:  Catholic Perspectives on American Law, Zenit interviewed Kevin Lee, MOJ friend and contributor to the book, on “Law From a Catholic Lens.”  What follows is a large excerpt of the interview.  For the full interview click here.

Q: Why is it necessary to ground an understanding of a legal system in a distinctively Christian anthropology?

Lee: It is not "necessary," in the sense that it is possible to create a legal system rooted in some other anthropology.

Much of contemporary American legal theory, for example, can scarcely be considered compatible with a Christian anthropology.

But I think Catholic anthropology has a contribution to make. It offers a unique understanding of the irreducible dignity of the person and the giftedness of the community.

Catholic thought affirms that human beings are creatures with particular natures, capacities and limitations.

We all have dignity as bearers of the "imago Dei," but we are also sinful and prone to weaknesses. We form communities naturally, through small acts of love and kindness, but that does not mean that we are not capable of meanness and selfishness.

The Anglo-American legal system could simply abandon its Christian roots as archaic or nonsensical, but doing that would mean abandoning our tradition and denying that tradition has anything to offer.

Anyone who would advocate that position would bear a heavy burden of proof.

Q: A number of scholars are rediscovering the Catholic influence on the formation of Western legal systems -- an influence that lasted well into the last century. Does the Catholic conception of reciprocal rights and duties, so long a part of Anglo-American law, continue to govern our legal system, or have individualistic and modern liberal theories such as those of John Rawls transformed American law?

Lee: There is no doubt that the contemporary Anglo-American legal system has been massively influenced by modern liberal democratic theories.

But, I don't think that Catholic thought is in total opposition to either modernity or liberalism. It is much more complex than that.

Modern liberals, like Catholics, are concerned with rights and justice.

For example, Pope John Paul II's passion for individual freedom against totalitarian rule found support among liberals.

The critique is more nuanced than a simple rejection of modernity and liberalism.

Q: What role does natural law play in Catholic legal theory? Is the natural law the "self-evident truths" that the American founders asserted governed political life?

Lee: Natural law is based on the belief that nature has rational purposes. It seeks to read moral precepts from such purposes as they are visible in nature.

Citing St. Paul's letter to the Romans, Christian natural law theorists have held that these precepts are based on self-evident foundational principles. But, it is a theory that is no longer widely accepted.

Modern science opposes the idea that there is any purpose to nature, moral or otherwise.

Contemporary secular philosophy largely denies moral truth altogether, and even contemporary Christian ethicists tend to look to virtue rather than law when speaking about morality.

Nonetheless, natural law theory still offers many insights and poses interesting questions.

For Christians, natural law theory has to be worked out in relation to the creation stories of Genesis. There are of course two antithetical natures for human beings in Genesis: one of eternal innocence and integrity, and the other of the fall and fragmentation.

The fall suggests a limit to our ability to gain moral knowledge from examining nature. It is possible to read the signs of nature correctly only if we understand the realities to which the signs refer.

But the fall impedes our capacity to know the ultimate reality because we no longer read the signs correctly. So a complete reading of the natural law will always elude our fallen, temporal selves.

Catholics typically have been more optimistic than Protestants in assessing the depth of our fallen nature. They have tended to argue that even the fall calls us to salvation because we can remember something of our pre-fallen state.

Protestants are more likely to see the fall as a complete forgetfulness of God that can only be healed by God's initiative. Nonetheless, Catholics and Protestants agree that we are deeply marked by the fall, and reason alone does not secure our ability to "read the signs" that tell of the purposes of nature.

That is why reason alone offers no sure guide to moral life. Benedict XVI has referred to the "pathologies of reason" to suggest this danger.

Christian moral theory must always be sensitive to excessive claims about the role that nature and natural reason can play in the moral life.

God's gifts of grace -- or example what St. Thomas called the infused virtues: faith, hope and charity -- are essential to the moral life, but they are typically discounted in natural law theories because they suggest limits to natural reason, and therefore moral knowledge is not self-evident.

Theism's Reasonableness and the Foundation of Human Rights

Robby George recommmends Grisez's in God? A Philosophical Preface to Faith for those interested in studying a compelling argument for the reasonableness of belief in God. 

In light of Brian Tamanaha August 21 post on Balkinization and in light of the comment made by Charles to a post on Steve Bainbridge's blog, I'll further clarify what I said in an ealier post, arguing that theists have a sturdier foundation for human rights than a-theists.

Is there a strong rational basis for human rights?  If so, what is it?

I agree with Brian T. that atheistic and materialistic foundations for human rights are tenuous.  How can there be a rational basis for inherent human dignity in an irrational universe?  There can't!

But, as Brian recognizes, there is a rational basis for inherent human dignity (which is the basis for universal human rights) if we were created by a certain type of God.  But, here is the stumbling block for Brian.  God's existence has not been proven.  From this he concludes, if I understand him correctly, that the theist's foundation for human rights is equally tenuous.  But, I think he requires too high a burden of proof - "a beyond a shadow of a doubt standard" - for God's existence.

If belief in God is reasonable, then theism (even by Brian's own logic, I think?) supplies a rational basis for human rights where atheism does not.  But, what if it is more reasonable (perhaps substantially more reasonable) to affirm God's existence than to deny it?  See Grisez.  Then it seems to me that the theist's foundation for human rights is sturdier still.

Now to Brian T's question of why does it matter?  Why do theists (like us at MOJ) risk alienating good, moral, human rights desiring atheists by insisting that theism provides a sturdier foundation for human dignity and rights than atheistic foundations?  First, we don't (or I don't) want to alienate any person of good will, theist or atheist.  We (I) desire and welcome fellow travelers from all walks of life and with all belief systems.  But, we (or at least I) do not think that a tenuous non-theistic (closed to special revelation and closed to general revelation - natural law) basis for human rights can protect the dignity of persons long term in the face of all the evil, selfishness, and unbridled desire for power and control in the world.  History has shown that even the sturdier (reasonable) theistic foundation has a hard time taming our disordered desire to treat other human beings as objects for our use and gratification.  An a-theistic foundation will have, I concluded, an even harder time and will ultimately fail because it cannot give a strong account of why a particular type of matter (the material that makes up a human being) ought to be respected in a solely materialistic universe. 

Pre-Enlightenment Jewish and Christian Foundations to Human Rights

Its not quite “later in the day,” but I am finally getting back to Rob’s response to Jack Balkin's post regarding the development of human rights.  Jack says:  “For religion to ground universal human rights in the very attractive way that the previous discussion has assumed, that religion must be of a very special sort, and, I would suggest, it must be of a form that arises most commonly following the Enlightenment.”

I would like to suggest that history shows that the foundations for modern human rights were laid (both directly and indirectly) long before the Enlightenment. 

In the Old Testament, we see the idea planted that those outside the community and the marginalized within the community are to be treated with respect.  The duty toward the alien among them, the duty to leave some crop in the field to be gleaned by the poor, and the concept of a jubilee year where the economic playing field was leveled are all evidence that Israel had started to think about human rights in a way that transcended old boundaries (citizenship and class).

In the New Testament, we see this idea advanced through Christ who came for all human kind.  In Him there is no Jew or Greek, no woman or man.  The NT is full of references to the universal nature of human dignity.  One that sticks out and is particularly appropriat