Mirror of Justice

If you live in Utah . . .

. . . go vote on Tuesday for school choice (and social justice, and religious freedom, and common sense, . . . ).  If you live near Utah, move there, enjoy the best skiing in the world, and vote for school choice, one of the relatively few issues about which "there can be no debate."

Immigration Policy and Catholic Social Teaching

MOJ readers in the New York area will be interested in a program entitiled: Immigration Policy and Catholic Social Teaching: Can We Work it Out?, to be held on Tuesday, November 13, at The Church of St. Ignatius Loyola.  The program is being co-sponsored by the Church of St. Ignatius Loyola and the Woodstock Theological Center at Georgetown University, and will explore the question of "[h]ow do we link our Catholic Faith with its venerable tradition of social teachings to the challenges that the immigration debate in our country poses for us."  The co-hosts for the program are Gerald R. Blasczcak, S.J., Pastor of St. Ignatius Loyola and Gasper F. Lo Biondo, S.J., Director of the Woodstock Theological Center, and the panelists are Donald Kerwin, Director of Catholic Legal Immigrant Network, Inc. of the USCCB and Carmen Maquilon, Program Director at Catholic Charities Immigrant Services, Diocese of Rockville Center.  The program, which begins at 7:30 p.m. will be held in Wallace Hall at the Church of St. Ignatius Loyola, 980 Park Avenue (between East 83 and 84 Street), New York, New York.

More on Immorality vs. Illegality

In response to my post re-raising Eduardo's questions on the Church's teachings on the legality of abortion and certain abortion-practices, MOJ friend John Breen wrote to me about two recent articles of his that will soon be available on SSRN: John Paul II, the Structure of Sin and the Limits of Law (forthcoming in the St. Louis University Law Journal) and Modesty and Moralism: Justice, Prudence and Abotion - A Reply to Skeel and Stuntz (forthcoming in the Harvard Journal of Law and Publis Policy).  He writes:

"In the latter half of the first piece, I address the historical record regarding the incidence of abortion prior to the state reform efforts in the late 1960s and early 1970s and Roe. Without settling on a definitive number, the available empirical evidence effectively refutes the claims of those who maintain that legalization had no effect on the frequency of the procedure. Indeed, Planned Parenthood's own numbers show that both the abortion ratio (the number of abortions per 100 known pregnancies in a given year) and the abortion rate (the number of women per 1000 between 15-44 years of age having an abortion in a given year) steadily climbed in the years following Roe, and that the actual number of abortions per year likewise steadily increased following Roe, surpassing even the exaggerated estimates of annual abortions prior to Roe advanced by abortion advocates.

"In the second piece I restate some of this critique. Beyond this, however, I also argue against those (including many Catholic commentators) opposed to any use of criminal sanctions in the regulation of abortion. Those who argue for a "culture first" approach also frequently advocate for the use of law in its non-coercive dimension, for a greater allocation of resources directed toward women with unexpected and unwanted pregnancies. Although I support such measures because solidarity demands that we support such women and their children (both born and unborn) I also show that it is unlikely that greater financial resources will have little effect on the incidence of abortion. A comparison of abortion rates and ratios in other developed countries (such as Sweden, Canada, England, and France) that have far more elaborate social service networks, strongly suggests that such measures will have only a marginal effect. Instead, I argue for a multi-faceted approach in which culture and law (including both the criminal law and law in its non-coercive dimensions) are employed in support of unborn human life and pregnant women and mothers.

"As for Eduardo' hypothetical, if true - if law has no effect on the frequency of the practice - it would, I dare say, be the first instance of that in the history of jurisprudence.  Indeed, even the much maligned legal apparatus known as Prohibition was (as modern scholarship conrfirms) was successful in that it significantsly reduced the amount of alcohol consumed by Americans by upwards of 40 percent.  of couse this raises a host of prudential questions: Would a reduced incidence of abortion be worthwhile even though absolute compliance with the law would not be achieved? Accordingly, I take up the subject of prudence and its relationship to justice at length in the second piece."

The New Atheists

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

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

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

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

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

Benedict on Pharmacists

As I've written elsewhere, I'm skeptical about whether a pharmacist should be legally empowered to invoke a right of conscience against her employer.  I fear that such a right might short-circuit the possibility of a moral marketplace and the potential for pharmacies to operate as a sort of mediating structure.  The marketplace approach has plenty of critics, of course, and I welcome the challenges they present, though I'm given pause by the fact that the critics now apparently include Pope Benedict.

(Im)morality versus (il)legality and the Law (of abortion)

Both Susan and Eduardo have raised an interesting and important issue involving the questions surrounding the Guttmacher-WHO study and its bearing on the law and law-making. I am grateful to them for their calling attention to this subject. Before I get into the substance of this posting, I think it important to remember that the Guttmacher Institute was founded by Alan F. Guttmacher, a former president of the Planned Parenthood Federation of American and a leader in the International Planned Parenthood Federation. He subsequently founded the Institute named after him in 1968 to provide research, policy analysis and education in the areas of “reproductive health, reproductive rights and population.” The Institute, PPF and the IPPF all have horses in the legal races involving “reproductive health, reproductive rights and population.” It is conceivable, so to speak, that the Institute would have more than a passing interest in laws dealing with abortion and related matters in the US and abroad.

Now, let me come to Susan’s point, and I believe that made earlier by Eduardo, about law-making that would criminalize abortion “but not reduce the incidence of abortion, but only make abortions more dangerous”; for them, this raises the “connection between views on morality and views on legality.” Both Susan and Eduardo have properly put their queries in the context of Catholic legal theory.

Here is the approach of one Catholic legal theorist (if I may call myself such):

Let us first begin by considering the duties of the law-maker (for us in the US, this means state legislatures, Congress, judges, and administrative agencies) that relate to abortion. The law-maker can make a law that criminalizes abortion, legalizes abortion, or regulates abortion. The law-maker may say nothing about morality in positing the law (statute, judicial decision, or regulation) made on the subject.

Moreover, the law-maker may be urged to conclude by the lobbyist or the litigant that the law made must be divorced from moral considerations. This argument has run a thread throughout jurisprudential debate for some time. Two examples would be the Hart-Fuller debates and the disagreements between the Kelsen school and the Rommen/Voeglin schools. Yet, when all is said and done, there frequently are discussions about morality and its nexus with the law and law-making when debates about tax laws, labor laws, education laws, environmental laws, and criminal laws (just to mention a few) occur. The Guttmacher Institute mentions, by the way, on its website that it executes its mission, in part, by “testifying before federal and state legislative bodies and in court cases.” Well, this is participating in the law-making process, and we can readily see what their aspirations are for law-making outcomes regarding abortion and where moral considerations don’t fit into the process.

And what about Catholic legal theory? There is nothing wrong or unusual with introducing moral considerations into debates that occur when law is being made. But, for the Catholic legal theorist I think this would be not only expected but would be compulsory. Moreover, I am confident that Catholic legal theory would have much to offer the law-maker who is positing law addressing the legality or regulation of abortion. And what might this be?

The moral considerations underpinning Catholic legal theory would enable the law-maker to consider more or all rather than some of the issues that must inevitably intersect abortion laws. Today so much of the law in this country pertaining to abortion permits abortion—with few restrictions—and bases the justification on Constitutional requirement (which I submit results from an erroneous interpretation in the Roe progeny), the argument from privacy, and, more recently, the argument from equality. The focus of abortion law seems to be on the welfare of the mother only. This becomes patent when judges, state and Federal, scrutinize legislation and regulation looking for the “essential” health exception clause to protect the mother only.

Catholic legal theory, in contrast, begins to look at other welfares, too. The mother’s health and welfare are surely important; but so is the health and welfare of the child whose life will be snuffed out should the abortion proceed. But it is also vital to recognize that the mother has other issues that are often ignored or dismissed as long as she can be allowed to terminate her pregnancy. What might these issues be? Well, informed consent is a place to start. Does she really know what is about to happen? Does she really understand what is inside her womb? Would she want to have an abortion if she could see her child? (Ultrasound imaging would provide her with this critical information.) Has she been provided with education about effective parenting skills? Is pre and post-natal care available for her and her child to ensure good health for both? Catholic legal theory would also provide for the welfare of the father? Where is he? Should provision not also be made for encouraging his responsibility for the life he helped promote by developing among other things his parenting skills? It seems that the law-maker is not restrained from including these provisions relating to these matters as well. Cannot the law-maker provide for orphanages, foster care, and adoption services for children whose birth parents will not or cannot properly care for the raising of the child?

Indeed, the law-maker can provide for all these things and more.

But the critic may well argue that the additional elements will cost money. The Catholic legal theorist can respond by reminding the critic that laws addressing defense, environment safeguards, historical preservation, criminal justice, wildlife protection, etc. (all of which have moral considerations) also cost money. But in spite of their cost, laws are made to advance these interests and protections. Why can the law not do the same to preserve young human life and the lives of those responsible for its conception? This is the response of one Catholic legal theorist.   RJA sj

Abortion and Hypotheticals

MOJ reader, Josiah Neele, e-mailed me in response to my post about Eduardo's questions to express the view that Eduardo's hypotherical questions lack practical relevance because, "[c]ontrary to the Guttmacher-WHO study, legalizing abortion does increase the number of abortions performed."  He writes:

"Granted, working through the implications of a hypothetical situation can be useful even if you konw the situation does not obtain.  But not always.  Justinian, apparently, thought that homosexuality caused earthquakes.  No doubt if homosexuality did cause earthquakes, this would have some serious public policy implications.  But is it really worth taking the time and effort to figure out what those implications might be?  I think not.  the same goes, I think, for Prof. Penalaver's questions."

Implicit in my prior post is the conviction that addressing Eduardo's "if" question is a worthwhile expenditure of time given the centrality of the question of the relationship between morality and law to our collective effort to articulate a Catholic legal theory.  But Josiah's e-mail prompts me to wonder whether others view the question as a hypothetical not worth pursuing in the absence of more clarity regarding what the data shows. 

.

Poverty and Human Development

The Council of Science Editors organized a "Global theme Issue on Poverty and Human Development" in order to encourage research on the subject and to disseminate that research to the widest possible audience.  Science journals were invited to simultaneously publish articles on poverty and human development on October 22, 2007.  The result was 750 articles published in 235 science journals from 37 countires on a broad range of topics relating to the impact of poverty on health, the challenges of porviding adequate medical care to the poor, and the ability of various health initiatives to reduce poverty.  MOJ readers engaged in analyses of poverty and health will want to check out the Council's website (here), which describes the project and contains a partial list of the articles published.  The Council has urged the journals to make the global theme published articles available to the public for free; some can be accessed online from the Council's website. 

Immorality vs. Illegality of Abortion

A couple of weeks ago, Eduardo raised some questions prompted by the Guttmacher-WHO study on abortion.  He asked whether if making abortion illegal would not reduce the incidence of abortion, but only make abortions more dangerous, would that give cause to rethink, not the  morality of abortion, but the connection between views on morality and views on legality.  More broadly, he asked whether Catholic legal theory requires a particular legal conclusion regarding the morality of certain abortion practices, divorced from a consideration of the effects of whatever action it is concluded must be taken.

I don't know if Eduardo has received any private responses to his inquiries, but I have been disappointed not to see anyone publicly (at least here) take a stab at these questions, which I think are important and difficult ones.  The question of the (im)morality of abortion is an easy one.  But the question the law ought to do in the face of that immorality raises a host of prudential considerations.  I think if we are going to advance the debate on abortion in a meaningful way, we need to give greater consideration to questions such as those raised by Eduardo.   

Friendship: Quests for Character, Community, and Truth

This past weekend, I had the pleasure of attending an interdisciplinary conference at

Baylor

University

entitled Friendship: Quests for Character, Community, and Truth, which was organized by the Baylor’s Institute for Faith and Learning.

The developing friendship and dialogue between Catholics and Protestants was everywhere present.  The panel I chaired included a paper by Paul Martens (a philosopher and a Protestant) entitled “Friendship, Preference, and Protestant Paranoia:  Or Why is Agape Insufficient.”  This paper was placed on dialogue with a paper presented by Cynthia Nielsen entitled “A Glimpse at Christocentric Friendship in the Heartbeat of Hans Urs von Balthasar,” allowing for a working through of some of the differences between a Lutheran and Catholic view of love and friendship, universals and particulars.  These differences were brought into bold relief by Shawn Floyd in a paper in which he explored the difference between God’s love for all and his preferential friendship for some who in a sense merit friendship by their response to His grace.  It is a testament to the conference organizers that this panel (as well as so many others) worked so well together.

The “law” contribution came from a Scaperlanda but not me.  Chris Scaperlanda, a 2L at the

Univ.

of

Texas

(yes, I am the proud papa), presented a paper entitled “Law and Friendship:  Toward Virtue and the Common Good.”  His friend, Yale Divinity Master’s student, Andrew Litschi, was on the same panel with his paper:  “The Privatization of Friendship within Modern America.”  Both did an excellent job, and if I get their paper abstracts, I’ll post them later.

There were many great papers, and I will just mention one more before turning my attention to the keynote speakers.  Patricia Murphy, St. Augustine Seminary of

Toronto

gave a very thoughtful and thought provoking talk on Acedia or sloth.  In today’s world, the vice of sloth is often thought of as laziness (a sort of resting).  We value “doing” over resting.  Murphy argues that things were very different for Aquinas.  Resting in God’s friendship was highly valued and the vice of acedia was a sort of restlessness or flight from His friendship.

The two keynote speakers were Robert Putnam and Paul Griffiths.  I arrived too late on Thursday to hear Putnam, author of “Bowling Alone” give his lecture on “Faith and Friendship:  Initial Findings from a New National Survey.”  Those who were in attendance, considered it excellent and thought provoking.

Paul Griffith’s well received lecture was entitled “Befriending the Religious Other:  Why Love is Easier than Friendship.”  Although often difficult in practice, Jesus’ command to love is universal, extending to all human beings.  Friendship is different.  We are not called to be friends with every human being on the planet.  Time, language, and geography, to name just three obstacles, limit our capacity for friendship.  And, while differences can enhance, sharpen, and give life to friendship, extreme differences between individuals can serve as obstacles to friendship.  For the Christian, any person who does not share the view that Jesus is the pivotal figure in history and that Jesus’ birth, life, death, and resurrection was the pivotal moment in history is a religious “other.”  From the Christian perspective, Griffiths suggested that the religious “other” could be subdivided into Jews, Muslims, what he calls pious pagans (Hindus, Buddhists and, others), and secular pagans (those who don’t ask and seem disinterested in ultimate questions).

Griffiths

described some of the obstacles to befriending the religious “other,” suggesting that the commonalities in the three monotheistic religions make it easier for the Christian to overcome the obstacles to friendship with our Jewish and Muslim brothers and sisters.  The greatest obstacles, he suggests, are situated between the Christian (and other religious persons) and the non-religious person –the secular pagan- because the worldview of (and even the questions asked by) each are so fundamentally and at the core different.  There was much more to this provocative paper, and if I get an abstract, I will post it so that Paul can put it in his own words.

"The Evangelical Crackup"

This interesting article, which appeared in yesterday's New York Times Sunday Magazine, is getting a lot of play.  Some MOJ-readers may be interested.

MAGAZINE

The Evangelical Crackup

By DAVID D. KIRKPATRICK

After the 2004 election, evangelical Christians looked like one of the most powerful and cohesive voting blocs in America. Three years later their leadership is split along generational and theological lines. How did it all come apart?

[To print/read the article, click here.]

Emory's Center for the Study of Law and Religion

Sightings  10/29/07

 

Religion and Law at Twenty-Five

-- Martin E. Marty

 

"When Religion and Law Meet: The Point of Convergence" was the topic of the twenty-fifth anniversary "look-ahead" conference at the Center for the Study of Law and Religion at Emory University in Atlanta this past weekend.  I had participated in a three-year project there, one of many undertaken and executed at the Center under the direction of Professors John Witte and Frank Alexander.  Rather than detail the conference papers from which I learned while preparing the final lecture, I will here focus on what the "convergence" has come to mean.

 

Quite a few of those scholars who had been "present at the creation" returned, to speak of the changes that had occurred during these twenty-five years.  The older-timers remembered that when the Center was first launched under the inspiration of the grand guru of the subject, the very senior Hal Berman, the idea of trying to get professionals in "law" and "religion" to converse and work together was treated mainly with neglect or suspicion.  Long traditions of collaboration between the two disciplines were forgotten.

 

Leaders in the spheres of "Law" and "Religion," like "Medicine" and "Religion," had drifted apart, lost touch with each other, or treated many of each others' concerns and projects with indifference or disdain.  Why? Such a distancing seems absurd, given the long history of the common interests and responsibilities of the "religion" and the "law" people.  Leaders of both act upon millions of people, and citizenries here and abroad are constantly dealing with both spheres.

 

Many fault the Enlightenment—the eighteenth century movement which few in law or religion should despise, given its (mixed) blessings and gifts—as well as anti-intellectual versions of nineteenth century religion.  The separation paralleled those which, for good or bad reasons, divorced religion from the academy, the clinic, the market.  The terrors of "law" and "religion" gone wrong led to mutual mistrust, stereotyping and caricaturing.   

 

But new generations of scholars, represented by the speakers at Emory, now look ahead to better futures. And the pioneering Center at Emory is finding ever more company at other universities and law-and-religion centers, many of which have similarly impressive records, though they are still too easily overlooked by those who deal with law and religion without looking at the philosophical or theological roots and goals of both.   

 

Those gathered at Emory are not united by ideology so much as by vocation and interest.  It was not a gathering of those who wanted to bash "Islamo-fascists" or to minimize legal challenges of Muslims who live under shari'ah law, or who wanted to attack Christian Legal Societies or to defend them.  The participants were constructive, modeling what they hope will be done elsewhere.  The Center's scholars and conferees have published scores of volumes whose contents enhance and advance the conversations and convergences.  As a late-comer to these encounters, I have catching up to do, but the sightings of these recent years encourage me to encourage Sightings readers to become acquainted with these excitements and urgencies.

 

References

 

Find out more and read work by the Center's scholars at www.law.emory.edu/cslr, or contact April Bogle at abogle@law.emory.edu.

----------

Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.  

More on Meaning and Catholic Identity

I begin by sincerely thanking Susan for her responsive critique to my posting, “What Does It Mean?” that briefly replied to Rick’s post-AALS hiring conference reflection. Rick posed a vital question dealing with hiring faculty for law schools that claim to be Catholic.

My short response was intended to address a vital issue that is implicit in Rick’s question and deals with addressing questions raised by faculty candidates who are interested in the Catholic identity and mission of the school.

In my earlier post, I introduced the relevance of the Creed. Perhaps I am wrong about the underlying intent of her posting, but I think Susan concluded that I was proposing that the Creed is an important matter to be raised and discussed with to potential faculty recruits at screening interviews. That was not my intent.

Rather, it was and remains my intention about the Creed to elevate in our own consciousness a vital issue: whether the Catholic faculty who comprise an important, but not the only component of the faculty at a “Catholic law school” and who have a significant role in replenishing the faculty have a strong sense of their own identity so they can then address and answer the questions asked by candidates as identified by Rick.

If faculty recruiters do not have an understanding of who they are as Catholic academics, how can they explain the school’s Catholic identity and mission to recruits who ask about the Catholic soul of the institution that is interviewing and possibly recruiting them? If self-knowledge is weak, how can such questions be answered convincingly?

Susan surmises that “most Catholics (including a lot of Catholic academics) don’t spend a lot of time reflecting on what they are affirming when the recite the Creed at Mass every week.” I think they should, particularly when inquiring minds at recruitment conferences ask for an explanation about Catholic identity—when they call “us” on the “the ‘Catholic mission’ thing,” as Rick indicates. I think there are also some student applicants who also make similar inquiries but are greeted with generalizations that talk a lot about public service and corporal works of mercy (both of which are important) but very little about faith and reason and fidelity to Christ, God, and the Church (which are vital to identity).

I am further grateful to Susan for mentioning the book by Fr. Michael Himes, which she has found helpful in affirming faith. I take this occasion to recommend another book that examines the Apostles’ Creed (which offers insight into the Nicene Creed—the profession of faith recited at every Sunday Mass) authored by a young German theology professor back in 1968. The book is entitled “Introduction to Christianity.” The author has left the conventional university academic environment but still teaches on a frequent basis.    RJA sj

The Creed and "What does it mean?"

I have looked at Fr. Araujo's post several times, trying to determine how far it advances us in the inquiry of conveying what it means to be a Catholic law school.  He suggests we need to take stock of the Creed, our profession of faith, when talking with faculty candidates who wish to teach at a Catholic school.

I'm going to guess that most Catholics (including a lot of Catholic academics) don't spend a lot of time reflecting on what they are affirming when they recite the Creed at Mass every week.  How many people, for example, examine seriously what it means when they affirm a belief in God the Father, the maker of heaven and earth?  (By the way, Michael Himes, in the chapter on Baptism in a slim volume called The Mystery of Faith does, I think, a beautiful job of discussing the implication of this affirmation.)

Second, even among Catholics who spend time reflecting on the meaning of the different elements of the Creed, I suspect there will be some variance in the understanding of what those elements mean, not only in terms of their own beliefs, but in term of the life of a law school.

If I am right about that, then what is the conversation that is to occur during the hiring process?  How does the Creed help us to identify to others, in a more meaningful way than the ways Rick suggests don't quite satisfy, who we are as a Catholic law school?   

What does it mean?

Rick has asked an excellent question regarding “what does it mean” to be a Catholic law school? Well, I think he has raised an honest and important question that several of us have addressed in the past along with friends of MOJ such as John Breen. As there are many rooms in our Father’s house, so there might be many ways of yet, once again, approaching this important question.

But, to date, I do not believe that any of us have addressed the issue of how do we take stock of the following profession of faith that needs to be considered when we discuss this vital issue amongst ourselves and with those who wish to teach at a “Catholic law school.” It seems that some candidates may wish to investigate this matter even though hiring representatives may consider it out of bounds insofar as they may conclude the AALS would not approve of an investigation of the profession. I wonder what would happen if it were discussed with those who currently teach at “Catholic law schools”? But I shall leave this second matter for another day. Here’s the text which, sooner or later, must have a bearing on the work of a Catholic law school:

We believe in one God, the Father, the Almighty, maker of heaven and earth, of all that is seen and unseen.

We believe in one Lord, Jesus Christ, the only Son of God, eternally begotten of the Father, God from God, Light from Light, true God from true God, begotten, not made, one in Being with the Father. Through him all things were made.

For us men and for our salvation he came down from heaven: by the power of the Holy Spirit he was born of the Virgin Mary, and became man.

For our sake he was crucified under Pontius Pilate; he suffered, died, and was buried.

On the third day he rose again in fulfillment of the Scriptures; he ascended into heaven and is seated at the right hand of the Father.

He will come again in glory to judge the living and the dead, and his kingdom will have no end.

We believe in the Holy Spirit, the Lord, the giver of life, who proceeds from the Father and the Son. With the Father and the Son he is worshipped and glorified.

He has spoken through the Prophets.

We believe in one holy Catholic and apostolic Church. We acknowledge one baptism for the forgiveness of sins. We look for the resurrection of the dead, and the life of the world to come. Amen.

Amen, indeed.    RJA sj

Hiring-conference-inspired thoughts

I am on my way back -- having a beer in the airport -- from the AALS hiring conference.  It was great seeing so many MOJ colleagues, friends, and readers at the religiously-affiliated-schools reception and elsewhere. 

One result of spending the day meeting and talking with a contingent of talented, engaging, and intimidatingly credentialed would-be law professors (that is, an effect besides the "good Lord, I'm glad I got my job ten years ago" feeling) is reflection on what it means -- beyond slogans, or feel-good generalities -- to profess and aspire to be a "Catholic law school".  How like the question that cropped up on this blog and elsewhere a few weeks ago -- i.e., what is a "Catholic judge," and is Justice Scalia one -- is this one?

To their credit, most of the future law-teachers with whom my Notre Dame colleagues and I spoke asked us about -- "called us" on -- the "Catholic mission" thing.  As a rule, we would say, among other things, that there are dozens of faculty and each would likely express and live out the "thing" in different ways.  Fair enough.  But, what else?  Some affirmations of the importance of community, collegiality, social-justice, etc., were also appropriate, and regularly provided.  We talked some about how a Catholic law school's mission finds natural expression in indisciplinary work (that is, "interdisciplinarity" is not, on the Catholic understanding of a university's work, a fad or an add-on; it's a natural, necessary feature of the search for truth.)  And, I emphasized, as I usually do in these conversations, my view that a Catholic law school should call its students and faculty to "integration."

But . . . what else is needed?  What else should be said?  I've been teaching at a Catholic law school for nine years, blogging about Catholic legal theory for nearly five, and have talked to dozens and dozens of potential hires.  I know -- I just know -- there's more to the "mission" of an authentically, meaningfully Catholic law school than what I usually manage to articulate, and I feel like I'm not doing right by those who say, "that sounds interesting, even attractive . . . what does it mean?"

Dreher on Mukasey, and what the country can afford

As Michael notes, I have often linked to Rod Dreher's writings, particularly his "crunchy con" stuff.  With respect to Dreher's recent statement that he "was appalled to hear the judge say that the president has the right to decide which laws he’s going to obey, under certain circumstances":  For more on what Mukasey actually said, in the exchange to which Dreher refers, and on the question whether what he endorsed would actually constitute an "expan[sion] of executive authority," go here.  (For more on the -- to me -- frustrating unwillingess or inability of Mukasey to concede that waterboarding is "torture", go to the Balkinization blog.)

Dreher also writes, as Michael notes, "[t]his country cannot afford an attorney general who believes that executive power should be expanded so greatly."  Maybe not.  Dreher also believes, I am confident, that "this country cannot countenance an attorney general who believes that the Constitution removes from the reach of democratic politics the question whether elected representatives have the authority to regulate partial-birth abortion."  We'll see . . .

Attorney General Nominee Michael Mukasey

Rick Garnett has occasionally called our attention to Rob Dreher.  Here's what Dreher has to say about Mukasey, according to The Opinionator (New York Times online):

A conservative vote against Mukasey: “I was appalled to hear the judge say that the president has the right to decide which laws he’s going to obey, under certain circumstances,” says “Crunchy Con” Rod Dreher at his Beliefnet blog. He adds, “This country cannot afford an attorney general who believes that executive power should be expanded so greatly. I don’t care if the office sits vacant until Bush is out of office. The line has to be drawn by the Senate.”

"The Eugenics Temptation"

A good op-ed, by Michael Gerson, discussing James Watson's recent racist statements (and also earlier statements of his about aborting children with Down's Syndrome):

No one should underestimate the wrenching challenge of having a disabled child. But we also should not ignore the social consequences of widespread screening of children for "desirable" traits. This kind of "choice" is actually a form of absolute power of one generation over the next -- the power to forever define what is "normal," "straight" and "beautiful." And it leads inevitably to discrimination. British scientist Robert Edwards has argued, "Soon it will be a sin of parents to have a child that carries the heavy burden of genetic disease." A sin. Which leaves disabled children who escape the net of screening -- the result of parental sin -- to be born into a new form of bastardy and prejudice.

This creates an inevitable tension within liberalism. The left in America positions itself as both the defender of egalitarianism and of unrestricted science. In the last presidential election, Sen. John Kerry pledged to "tear down every wall" that inhibited medical research. But what happens when certain scientific views lead to an erosion of the ideal of equality? Yuval Levin of the Ethics and Public Policy Center, a rising academic analyst of these trends, argues: "Watson is anti-egalitarian in the extreme. Science looks at human beings in their animal aspects. As animals, we are not always equal. It is precisely in the ways we are not simply animals that we are equal. So science, left to itself, poses a serious challenge to egalitarianism."

What's Going on at the University of St. Thomas?

The Chronicle of Higher Education
October 23, 2007

Archbishop Tutu Calls for U. of St. Thomas to Reinstate Professor

Following an initial refusal to let Archbishop Desmond Tutu speak at the University of St. Thomas, the Minnesota institution has now invited him. Archbishop Tutu said he will, but only if the college agrees to give a professor back her chairmanship.

University officials admitted to demoting Cris Toffolo, an associate professor of political science, from her position as chair of the institution’s program in justice and peace studies. They wouldn’t give details but said it had to do with the situation concerning Archbishop Tutu.

The Rev. Dennis J. Dease, president of the university, announced his recognition of the university’s mistake and a formal invitation to the Nobel peace laureate two weeks ago in a letter to students and members of the faculty and staff.

Meanwhile, faculty and staff members are rallying and gathering signatures for a petition to reinstate Ms. Toffolo to her administrative job, but the university seems to be holding firm, according to the Star Tribune. —Anna Weggel

On Being a Catholic Judge

Justice Scalia may not be a "Catholic judge," but he is both a Catholic and a judge ... and that matters. I elaborate at my blog.

Torture as Technicality

I confess that I did not follow last week's confirmation hearings of Michael Mukasey to be attorney general.  But I am disturbed at his evasiveness on the question whether waterboarding constitutes torture.  David Luban comments:

Aren’t we tired of evasion? The legal formula "severe physical or mental pain or suffering" is NOT an arcane lawyer’s term of art. It’s not an old Latin phrase or a medieval term like "replevin" or "assumpsit". All the black arts of the Bush torture lawyers have been bent to one end: pretending that there is something arcane and complicated about the words "severe physical or mental pain or suffering." Something that only a brilliant lawyer with fancy credentials can figure out.

The fact is, there is no rich technical jurisprudence on the meaning of those words, and only scoundrels pretend that there is. The legal definition of torture is just twenty years old, and - to say the least - torture cases raising the issue of where to draw the boundary between "severe" and "not severe" aren’t popping up on the dockets of courts the world over like slip-and-fall cases. This isn’t a question for lawyers. This is a question of common sense. Let’s stop being ridiculous.

So: does waterboarding inflict severe suffering? If you want to do a quick, common-sense reality check, try this. Blow all the air out of your lungs. Then stare at your watch and try not to inhale for ninety seconds by the clock. Then take one quick half-breath and immediately do it again. Now imagine that you’re tied down while you’re doing it and water is pouring over your head and rolling up your nose. Or, if you’re really ambitious, get in the shower and turn it on and try the same hold-your-breath-with-no-air-in-your-lungs experiment with your head tilted up and the water pouring up your nose. Then decide for yourself whether it’s severe suffering.

Which is worse: having a President who obfuscates the clear meaning of terms in order to avoid accountability for personal moral failings, or having a President who does so in order to avoid accountability for morally flawed policy permitting the state's abuse of the human person?  Whatever good the Bush Administration has done on certain issues of importance to human dignity, can anyone reasonably dispute that the lack of clarity and courage on the issue of torture is a black mark on its record?

The "anti-homosexual" Christian

Leading evangelical pollster The Barna Group has released a study showing that Christianity's reputation among young Americans is taking a serious hit, due in large part to its stance on homosexuality:

Interestingly, the study discovered a new image that has steadily grown in prominence over the last decade. Today, the most common perception is that present-day Christianity is "anti-homosexual." Overall, 91% of young non-Christians and 80% of young churchgoers say this phrase describes Christianity. As the research probed this perception, non-Christians and Christians explained that beyond their recognition that Christians oppose homosexuality, they believe that Christians show excessive contempt and unloving attitudes towards gays and lesbians. One of the most frequent criticisms of young Christians was that they believe the church has made homosexuality a "bigger sin" than anything else. Moreover, they claim that the church has not helped them apply the biblical teaching on homosexuality to their friendships with gays and lesbians.

A new blog

MOJ readers might be interested in this new blog:  "The Immanent Frame" is run by the Social Science Research Council, and deals with "secularism, religion, and the public sphere."  The first round of posts are focusing on Charles Taylor's new book, "A Secular Age."

Bobby Jindal's conversion

Bobby Jindal, a Roman Catholic Indian-American, was recently elected Louisiana's governor.  This is, I think, a wonderful thing.  Here, thanks to America magazine, is a reprint of an article he wrote in 1993 about his conversion to Catholicism.

Miller on Scalia and "Catholic" judges

Over at the First Things blog, Villanova law prof and MOJ-friend Robert Miller has this post, discussing Justice Scalia's lecture at Villanova and also my own post about that lecture, in which I suggested that Scalia, his protests to the contrary notwithstanding, really is a "Catholic judge."  Here's some of what Miller has to say:

. . . Scalia’s conclusion: A person’s moral values are generally irrelevant to the interpretation of legal texts—even when those values are Catholic values.

If he were not a textualist and an originalist, if he thought he ought to rely on substantive moral notions not found in the text, then, Scalia said, his Catholic faith would make a large difference in how he judges cases. Similarly, if he had to judge common-law cases—cases that do not involve texts enacted by a legislature but only judge-made law, cases of the kind that sometimes come before state courts but rarely come before federal courts—things would likewise be different. In making common-law decisions, a judge has to make normative judgments about which laws are best, and so the judge’s values are properly in play. So, too, in the voting booth. Indeed, when the question switches from which laws we actually have to which laws we ought to have, then a person properly relies on moral values, whether they be Catholic or anything else.

Many Catholics, even ones who are fans of Scalia, might find this surprising, even unacceptable. In my view, however, it’s perfectly correct . . .

Responding to my suggestion that Justice Scalia, whether he likes it or not, is a "Catholic judge", Miller writes:

We can take any profession and point out that Catholics who engage in that profession have special reasons, based in Catholic teaching, to do their jobs well in accordance with the standards applicable to all who do such jobs.  Nevertheless, we do not speak of “Catholic physicists” and much less of “Catholic third-basemen” or “Catholic real-estate agents” or “Catholic short-order cooks.”

And with good reason. A man may be a Catholic and a physicist, but this doesn’t make him a Catholic physicist. Some adjectives, when put into attributive position (“a heavy drinker”), combine with a substantive to yield a peculiar meaning (“some one who drinks a lot”) different from the mere conjunction of meanings of the adjective and the substantive (“heavy and a drinker”).

So it is, commonly, with the adjective Catholic. A Catholic theologian is not merely a Catholic who is also a theologian but a theologian who studies Catholic theology; and a Catholic writer is not merely a Catholic who is a writer but a writer who writes on Catholic themes. By parity of reasoning, a Catholic judge is not merely a Catholic who is a judge but someone who judges in a way different from other judges precisely because he is Catholic—and this is exactly what Scalia denies he does.

There is no peculiarly Catholic way of judging. And thus Justice Scalia is right when he says, “There is no such thing as a Catholic judge.”

Maybe so.  Certainly, like Miller, I do not think that the Catholic faith does, or should, supply a Catholic-who-is-a-judge with the substantive content of her rulings.  Still -- and I am entirely open to the possibility that I'm just being stubborn or sloppy -- I do not yet see why I need to agree that "a Catholic judge is not merely a Catholic who is a judge but someone who judges in a way different from other judges precisely because he is Catholic".

Sr. Helen and a "moratorium"

Thanks to Susan for the post about Sr. Helen Prejean's visit to St. Thomas.  I read her "Dead Man Walking" when it came out, and also had dinner with her as a first-year law student.  Although, over the years, I found myself disagreeing with some of what she said and did, I admire so much the way she managed to challenge us to respect the dignity, and hope for the redemption, even of those who do great evil, and also to remember the dignity of victims, and the pain of their families.

With respect to the "dignity of the human person" and the death penalty, it strikes me that there is this challenge, or tension:  On the one hand, Catholic abolitionism has embraced this "dignity" as the basis for the death penalty's immorality.  That is, Catholic abolitionists say that it is because of this "dignity" that it is wrong to execute even those who have committed horrible crimes.  On the other hand, I believe that this commitment to human dignity also requires Catholics to be skeptical of punishment theories that talk of punishment only in consequentialist or therapeutic terms.  If it is true that "human dignity" precludes execution, it is also true, it seems to me, that "human dignity" requires an appropriately retributive (i.e., desert-based) theory of punishment.

With respect to a moratorium, Susan says that if there is not a moratorium in effect, "there should be."  I agree, but with the caveat that any such moratorium should be imposed by politically accountable actors.

Helen Prejean and the Death Penalty

The University of St. Thomas Law School community was today treated to a talk by Sr. Helen Prejean, of Dean Man Walking fame, who has spent the last 20 years walking with people on death row, and who gives about 140 talks a years around the country in an effort to foster public discussion of the death penalty.

S. Helen started by stressing the need to go beyond theoretical discussions of the death penalty and focus on the practicalties of how it is administered. What does it say, she wonders, that in 8 out of 10 cases where the death penalty is the punishment, the victims of the crimes in question are white? Or what does it say that 10 states in the South account for 80% of U.S. executions. (Texas alone accounts for about 40%.)  Or that those sentenced to the death penalty are most likely poor?  She also taked about innocent defendants, the subject of her new book, The Death of Innocents: An Eyewitness Account of Wrongful Executions.  She laments, in this context, how difficult it is for particularly the poor to mount an effective defense and how difficult it is to succeed in a claim of ineffective assistance of counsel. None of these arguments are new, but that does not make them any less compelling. 

Ultimately, however, she argues that death as a punishment is inconsistent with the dignity of the human person and criticizes politicians and others who push us to believe that the only way to honor the family of victims of heinous crimes is by killingl the perpetrator.  She also suggests that in accepting the death penalty we not only harm the dignity of the defendant, but that we demean ourselves as well when we accept that the intentional killingn of another human being is not an act of cruelty.  She also talks in her book about "the corrosive effects on the souls of those who carry out the killings."

Rick asks whether there is a death penalty moratorium in effect.  If there is not, there should be. 

Is there a death-penalty moratorium in effect?

Hard to say.