Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Friday, November 30, 2007

R. George on law and culture

In recent days, a number of us have been discussing the contraception-subsidy proposal, which Michael P. called to our attention.  And, our examination of this proposal has touched on, among other things, the law-culture-conduct dynamic.  On this matter, MOJ-friend Robby George sends in the following for our consideration:

Crimes involving the use of date rape drugs are increasingly common on campuses and elsewhere.  The overwhelming majority of such crimes are committed by men on women.  Evidently, the drugs are widely available and easily obtained.  There doesn't seem to be much that can be done to prevent men who want the drugs from obtaining and using them.

Rape is in itself a horrible crime--always and everywhere.  It is, in my opinion, an intrinsically--and gravely--evil act. Where date rape drugs are used, the offense has additional dimensions.  Often the drugs are themselves harmful and dangerous.  Victims can suffer lasting injuries and even die as a result of ingesting the drugs.

Now, imagine that a date rape drug is synthesized which is just as effective as the ones sold on the street, but (in itself) considerably less dangerous to victims.  The risk of injury and death is substantially lower.  The cost, however, is higher.

How should we respond to a proposal to make the new, safer drug available through the University Health Center on a subsidized and confidential basis?  (Let us stipulate that there is no legal impediment to doing so.  Imagine that the drug is sometimes legitimately distributed over the counter as a "sleep aid.")  The argument is that, though we don't want to encourage date rape and the use of date rape drugs, we need to be realistic.  Date rape happens and will continue to happen despite our ongoing efforts to discourage it; date rape drugs are going to be used; we are not going to be able to turn back the clock and makes these drugs cease to exist.  Let's at least lessen the potential harm to women who are victimized.

Speaking for myself, I would firmly say no to this proposal.  But, then, I am a moral conservative.  I don't think we should subsidize and facilitate immoral behavior, even for the sake of preventing injuries and deaths a certain number of which will surely occur as a result of date rapists using unsafe drugs instead of the safer drugs they would have been using had we subsidized them and made them available.

What I don't know is whether liberals would agree with me as to whether the proposal should be rejected.  My sense is that most liberals do not share the general principle on the basis of which I myself would reject the proposal.  But, perhaps other grounds are available to them for rejecting it.  I don't think they would want to say that by subsidizing and distributing safer date rape drugs we are tacitly approving date rape.  They might, however, say that the policy of subsidizing and distributing the drugs would result in more date rape by contributing to a cultural climate in which date rape comes to be regarded by potential perpetrators as acceptable conduct.  But, then, liberals generally don't reason this way about, say, promiscuity when considering whether to subsidize and distribute contraceptives on campus.  Most liberals I talk with seem to believe that the policy of distributing birth control pills, placing condoms in jars in student lounges, etc. doesn't affect students' beliefs about sexual morality or alter their conduct.  The amount of promiscuous sex will remain the same, they say, whether or not condoms are subsidized and distributed; the only difference is whether the sex will result in unwanted pregnancies and venereal diseases that might have been prevented had condoms been used.

In any event, let's assume, just to test the principle, that we have reliable studies to show that easy access to cheap safer date rape drugs does not increase the number of date rapes in general or the number of date rapes in which date rape drugs are used.  It does not turn non-rapists into rapists.  The rate of date rape snd the use of date rate drugs will remain the same.  The only difference will be that victims will have a lower incidence of injury and death from the drugs themselves.

On this assumption, what is the correct answer from the liberal point of view?  Should a University Health Center subsidize and distribute the safer date rape drugs or not?

November 30, 2007 in Garnett, Rick | Permalink | TrackBack (0)

Spe Salvi facti sumus—in hope we were saved

A few hours ago the Holy See released Pope Benedict XVI’s second encyclical letter, Spes Salvi. [HERE in English translation] The central theme is redemption, a subject not alien to the law and therefore no stranger to Catholic legal thought and theory.

The Holy Father begins his letter by relying on a theme in the Pauline corpus, Romans 8:24, “in [this] hope we were saved…” In essence, the Pope’s fundamental point is about the goal of redemption for humanity and the corresponding responsibility of hope in the reaching this objective—an objective that relies on but does not depend ultimately on human institutions such as the law. The letter illustrates the right relation between God and human enterprise in this endeavor. This is justice, pure and precise. And proceeding to this justice requires hope and patience on behalf of the human family—as Benedict states, “The dark door of time, of the future, has been thrown open. The one who has hope lives differently; the one who hopes has been granted the gift of a new life.” This strikes me as a crucial element of our work in and through the Mirror of Justice project—the name of which derives from one of Mary’s titles and influences the Pope’s encyclical as will be pointed out toward the end of my posting today.

The Holy Father uses the images of the downcast, the slave, and those on the margins of society to reinforce the theme of hope in the one who came to save us all so that we may be redeemed and live with Him forever. Benedict takes note of the human alternatives that exist in this word to achieve one type of freedom that can liberate the marginalized—an endeavor with which the law has a great interest. But as he argues throughout the letter, the forms of liberation that rely solely on human resources are imperfect: “Faith draws the future into the present, so that it is no longer simply a ‘not yet’. The fact that this future exists changes the present; the present is touched by the future reality, and thus the things of the future spill over into those of the present and those of the present into those of the future.” For Benedict, there must be a renunciation of exclusive reliance on the things of this world to provide authentic relief to those who suffer in this world:

Faith gives life a new basis, a new foundation on which we can stand, one which relativizes the habitual foundation, the reliability of material income. A new freedom is created with regard to this habitual foundation of life, which only appears to be capable of providing support, although this is obviously not to deny its normal meaning. This new freedom, the awareness of the new “substance” which we have been given, is revealed not only in martyrdom, in which people resist the overbearing power of ideology and its political organs and, by their death, renew the world. Above all, it is seen in the great acts of renunciation, from the monks of ancient times to Saint Francis of Assisi and those of our contemporaries who enter modern religious Institutes and movements and leave everything for love of Christ, so as to bring to men and women the faith and love of Christ, and to help those who are suffering in body and spirit. In their case, the new “substance” has proved to be a genuine “substance”; from the hope of these people who have been touched by Christ, hope has arisen for others who were living in darkness and without hope. In their case, it has been demonstrated that this new life truly possesses and is “substance” that calls forth life for others.

For this to make sense, the Pope acknowledges that redemption, and the human role in it (through hope in God) must understand what life, including eternal life, means. This is where the role of Jesus’s salvific mission must be taken into account for it means something to the existence of every person whose life begins in this world but will continue elsewhere. Inspired by the writing of Henri de Lubac, the Pope distills the essence of human existence by identifying the individual and social nature of hope, faith, salvation, and redemption: “salvation has always been considered a ‘social’ reality.” For Benedict, sin—the product of human free will—destroys the unity of the human race by fragmenting the person and the society in which he or she lives. This factor is quite characteristic of our materialistic and individualistic world today as expressed in the famous dictum of Planned Parenthood v. Casey: “At the heart of liberty is the right to define one’s own concept of existence, of meaning of the universe, and the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State” or, I suppose, any other human institution. But the Pope sees a remedy to this problem of fragmented liberty: it is redemption which reestablishes the unity in which individuals come together in a union that begins to take shape in the community of believers. In this context, the Social doctrine of the Church has much to provide every person of good will who recognizes the difficulties which the Casey perspective generates but who is motivated to look for enduring solutions to the conundrums the Casey outlook leaves in its wake. In N. 16 of Spes Salvi, Benedict specifically addresses this problem and the transforming role that Christian “faith-hope” can have on the present age. In doing so, he critiques the Caseyesque rationale by stating,

a disturbing step has been taken: up to that time, the recovery of what man had lost through the expulsion from Paradise was expected from faith in Jesus Christ: herein lay “redemption”. Now, this “redemption”, the restoration of the lost “Paradise” is no longer expected from faith, but from the newly discovered link between science and praxis. It is not that faith is simply denied; rather it is displaced onto another level—that of purely private and other-worldly affairs—and at the same time it becomes somehow irrelevant for the world. This programmatic vision has determined the trajectory of modern times and it also shapes the present-day crisis of faith which is essentially a crisis of Christian hope. Thus hope too… acquires a new form. Now it is called: faith in progress. For Bacon, it is clear that the recent spate of discoveries and inventions is just the beginning; through the interplay of science and praxis, totally new discoveries will follow, a totally new world will emerge, the kingdom of man.

It is this “kingdom of man” in which Benedict argues the purely political departs from the exercise of right reason that leads all to the eternal life and the Kingdom of God. He relies upon illustrations from the French Revolution and Marxist theory and praxis to make his point convincing. While promising “freedom,” both of these political events removed authentic freedom for reason. Here the Pope inserts one of the most significant elements of the encyclical letter:

[R]eason is God’s great gift to man, and the victory of reason over unreason is also a goal of the Christian life. But when does reason truly triumph? When it is detached from God? When it has become blind to God? Is the reason behind action and capacity for action the whole of reason? If progress, in order to be progress, needs moral growth on the part of humanity, then the reason behind action and capacity for action is likewise urgently in need of integration through reason's openness to the saving forces of faith, to the differentiation between good and evil. Only thus does reason become truly human. It becomes human only if it is capable of directing the will along the right path, and it is capable of this only if it looks beyond itself. Otherwise, man's situation, in view of the imbalance between his material capacity and the lack of judgement in his heart, becomes a threat for him and for creation. Thus where freedom is concerned, we must remember that human freedom always requires a convergence of various freedoms. Yet this convergence cannot succeed unless it is determined by a common intrinsic criterion of measurement, which is the foundation and goal of our freedom. Let us put it very simply: man needs God, otherwise he remains without hope.

What is critical to the success of the Holy Father’s proposition are two further realizations. The first is that right state of human affairs cannot be guaranteed by human-designed structures alone even while acknowledging their merits. Second, it is essential to understand the essence of human freedom: “the kingdom of good will never be definitively established in this world. Anyone who promises the better world that is guaranteed to last for ever is making a false promise; he is overlooking human freedom. Freedom must constantly be won over for the cause of good. Free assent to the good never exists simply by itself. If there were structures which could irrevocably guarantee a determined—good—state of the world, man’s freedom would be denied, and hence they would not be good structures at all.”

At this point he returns to the issue of human redemption and reminds us that it is not “science” that redeems us; rather, it is love, specifically the love of God in Jesus Christ, the one who came to save us all. Moreover, this love is the source of all life—both now and in the future. This love characterizes a crucial relation in human beingness, relation with our Savior. But this love which takes us into the eternal life also has a role in the life of this world. As Benedict states: “[Christ] commits us to live for others, but only through communion with him does it become possible truly to be there for others, for the whole.”

As he concludes this encyclical letter, Pope Benedict reminds us that to protest against God in the name of “justice” is not a helpful pursuit. It is through prayer entwined with knowing and dealing responsibly with human suffering and degradation that the human person makes an extraordinary discovery: a world without God is a world without hope; and only God can provide the justice that sustains hope in the better future—the eternal life—for one and all. “God is justice and creates justice. This is our consolation and our hope. And in his justice there is also grace. This we know by turning our gaze to the crucified and risen Christ. Both these things—justice and grace—must be seen in their correct inner relationship.”

As I mentioned, Mary, the Mirror of Justice, is identified by the Holy Father as one having a critical role in our hope and redemption. As Benedict suggests, “Life is like a voyage on the sea of history, often dark and stormy, a voyage in which we watch for the stars that indicate the route. The true stars of our life are the people who have lived good lives. They are lights of hope. Certainly, Jesus Christ is the true light, the sun that has risen above all the shadows of history. But to reach him we also need lights close by—people who shine with his light and so guide us along our way. Who more than Mary could be a star of hope for us?” For she is our Mirror of Justice, who leads us into our right relation with God and with one another.    RJA sj

November 30, 2007 in Araujo, Robert | Permalink | TrackBack (0)

Thursday, November 29, 2007

Religion in Politics: Identity vs. Arguments

The negative reaction of some voters to Mitt Romney's Mormonism has prompted The New Republic's Jonathan Chait to issue the latest broadside against "faith-based politics."  He begins by trying to counter the argument that demanding "secularism [in politics] is an assault upon faith":

Secular political discourse does not place religious voters or candidates at a disadvantage. It merely denies them an advantage. A religious candidate can campaign on the war in Iraq or health care or gay marriage just as easily as a secular candidate can. But a secular candidate can't run on his faith in the way a religious candidate can. ("Secular," of course, means a lack of political religiosity, rather than a lack of religious belief.) Religion-infused politics places a massive handicap on candidates and voters who are secular or subscribe to minority religions.

This argument -- that publicly-religious politicians have an unfair advantage -- has some validity in one context, but it's totally unconvincing in another.

Continue reading

November 29, 2007 in Berg, Thomas | Permalink | TrackBack (0)

Dionne, Cromartie, and Gerson on "Heroic Conservatism"

Here's a link to a Pew Forum event that might be of interest:

The Pew Forum invited former presidential speechwriter Michael Gerson to discuss his new book, Heroic Conservatism, with Forum senior advisors Michael Cromartie and E.J. Dionne Jr. and a select group of journalists. Gerson was challenged to define “heroic conservatism” and critique the Bush administration’s record on implementing the "compassionate conservative" philosophy Gerson himself helped to craft. Offering criticism and praise to both parties, Gerson lamented the lack of Republican support for domestic social justice issues, while calling on all Americans, in spite of the difficulties in Iraq, not to give up on a “moral internationalism.”

Prof. Bob Cochran called my attention to this bit, where Gerson characterizes "heroic conservatism" in this way:

“[H]eroic conservatism” is a rejection of libertarian and traditional anti-government ideology in favor of [a] conservatism of the common good, influenced by Catholic social thought. It tries to take the principles of solidarity with the poor and the weak seriously, both in issues of poverty and race, and pro-life issues, in my view, but also take the principle of limited government seriously, trying to both respect and strengthen mediating institutions as a primary goal of policy. . . .

The tradition that I’m arguing [for] here is quite different. Catholic social thought and the mainstream of the Judeo-Christian tradition has argued that social outcome is an actual outcome for the poor and the weak, that the justice of the society is determined by the treatment of its weakest members. That does change, to some extent, your goals and motivations in politics. I don’t think it makes you a liberal, but I think it’s different than some other conservative approaches.

CROMARTIE: By the way, if I could just say as a fellow Protestant, there is such a thing as Protestant social thought, you would agree. You keep talking about Catholic social thought.

GERSON: Yes, [Abraham] Kuyper and others; there are plenty of models that evangelicals have. But there are so many evangelicals like me who went to Capitol Hill and were casting around for a construct to explain what it means to be a person of conscience in politics, and [we] came to John Paul II and the tradition of Roman Catholic social thought. It has a consequence; it leaves you with a philosophy, from my perspective, because it doesn’t dictate a political ideology. That’s not what this tradition does. But it does dictate certain social goals of justice.

It’s left me believing that it’s possible, and arguing that it’s possible, to be a supporter of free markets and also believe in helping African kids—(inaudible)—to be a social conservative, which I am, and to believe in confronting these durable problems of race and poverty in this country that I think neither party has been particularly responsible on. So, yes, there are Protestant traditions, but the predominant one in our time has been a Catholic tradition.

November 29, 2007 in Garnett, Rick | Permalink | TrackBack (0)

Looking for a nice gift . . .

. . . for the recusant-history buff or Jesuit-fan (or blogging law prof) on your list?  Your search is through!

A book bound in the skin of an executed Jesuit priest was to be auctioned in England.

The macabre, 17th-century book tells the story of the 1605 Gunpowder Plot and is covered in the hide of Father Henry Garnet.

The priest, at the time the head of the Jesuits in England, was executed May 3, 1606, outside St. Paul's Cathedral in London for his alleged role in a Catholic plot to detonate 36 barrels of gunpowder beneath the British Parliament, an act that would have killed the Protestant King James I and other government leaders.

November 29, 2007 in Garnett, Rick | Permalink | TrackBack (0)

Christian Legal Theory conference in NYC

Readers might be interested in an upcoming one-day conference, to be held on January 5 in New York City, on Christian Legal Theory co-sponsored by the Law Professors' Christian Fellowship and the Lumen Christi Institute (an academic institute based at the University of Chicago).

Speakers include First Things' Richard John Neuhaus and Harvard's Bill Stuntz on "What's Right and Wrong with the Christian Right," Vanderbilt's Carol Swain and Oklahoma's Michael Scaperlanda on "Christian Responses to Immigration Reform," and Notre Dame's Paolo Carrozza, Pepperdine's Roger Alford and NYU's Jeremy Waldron on "Christian Perspectives on International Institutions."  Lastly, Judge Michael McConnell will deliver an address with the provocative title "Asking Muslims to be Moderate."

For more info, go here.

November 29, 2007 in Garnett, Rick | Permalink | TrackBack (0)

More on Rep. Hyde

For a few reflections -- including one by me -- on Rep. Hyde's service and legacy, click here.

November 29, 2007 in Garnett, Rick | Permalink | TrackBack (0)

MoJ-ers Unite!

Lawyers being lawyers, it's not enough for the ABA Journal to identify the top 100 blawgs -- someone has to win!  The Catholic legal theorists are clear underdogs to the libertarians, but as two of my favorite philosophers would say, "We're on a mission from God," and that has to count for something.  Vote your conscience here!

November 29, 2007 in Vischer, Rob | Permalink | TrackBack (0)

Henry Hyde, R.I.P.

Growing up in his congressional district, I was fortunate enough to have Henry Hyde appear at my junior high to give us civics lessons.  One of the leading anti-abortion voices in Congress, he died early this morning at age 83.

November 29, 2007 in Vischer, Rob | Permalink | TrackBack (0)

More on Holy Orders

I thank those who have addressed the matter of the role of those in the presbyteral order raised in Steve’s posting.

I largely agree with Susan’s priest friend. Moreover, to confirm what he has said, we need to take stock of N. 93 in the General Instruction of the Roman Missal, which states:

93. A priest also, who possesses within the Church the power of Holy Orders to offer sacrifice in the person of Christ, (Note 81) stands for this reason at the head of the faithful people gathered together here and now, presides over their prayer, proclaims the message of salvation to them, associates the people with himself in the offering of sacrifice through Christ in the Holy Spirit to God the Father, gives his brothers and sisters the Bread of eternal life, and partakes of it with them. When he celebrates the Eucharist, therefore, he must serve God and the people with dignity and humility, and by his bearing and by the way he says the divine words he must convey to the faithful the living presence of Christ. (Italics are mine)

Note 81 refers to two important passages from the Second Vatican Council on the same issue, i.e., Second Vatican Ecumenical Council, Dogmatic Constitution on the Church, Lumen Gentium, no. 28; Decree on the Ministry and Life of Priests, Presbyterorum Ordinis, no. 2.

Readers of and contributors to MOJ may also want to read the informative article in the current issue of America Magazine by Rev. Michael Kerper [HERE (it may be necessary to have a subscription to the magazine to read the entire article)]. While he describes his ministry in the Mass of John XXIII, I think these words of his apply with equal force to the priest who is celebrating the Eucharist in the Mass of Paul VI. These words of his are especially instructive:

The old Missal’s rubrical micromanagement made me feel like a mere machine, devoid of personality; but, I wondered, is that really so bad? I actually felt liberated from a persistent need to perform, to engage, to be forever a friendly celebrant. When I saw a photo of the old Latin Mass in our local newspaper, I suddenly recognized the rite’s ingenious ability to shrink the priest. Shot from the choir loft, I was a mere speck of green, dwarfed by the high altar. The focal point was not the priest but the gathering of the people. And isn’t that a valid image of the church, the people of God?

The act of praying the Roman Canon slowly and in low voice accented my own smallness and mere instrumentality more than anything else. Plodding through the first 50 or so words of the Canon, I felt intense loneliness. As I moved along, however, I also heard the absolute silence behind me, 450 people of all ages praying, all bound mysteriously to the words I uttered and to the ritual actions I haltingly and clumsily performed. Following the consecration, I fell into a paradoxical experience of intense solitude as I gazed at the Sacrament and an inexplicable feeling of solidarity with the multitude behind me.

Even as I cherish this experience, I must confess that I felt awkward, stiff and not myself. Some of the rubrical requirements, like not using one’s thumbs and index fingers after the consecration except to touch the host, paralyzed me. As a style, it doesn’t really fit me (I also can’t imagine wearing lace). But as a priest, I must adapt to many styles and perform many onerous tasks. Why should this be any different? Perhaps we have here a new form of priestly asceticism: pastoral adaptation for the sake of a few.

My reluctant engagement with the Latin Mass has not undermined my own priestly spirituality, born of Vatican II. Rather, it has complemented and reinforced the council’s teaching that the priest is an instrument of Christ called to serve everyone, regardless of theological or liturgical style. Ultimately it means little whether Mass is in Latin or in the vernacular, whether I see the people praying or hear their silence behind. For sure, I have my preference, but service must always trump that.

I share Fr. Kerper’s view that as one who shoulders the duties and responsibilities of the presbyteral office—I must never forget this: it is not about me; it is about Thee!      RJA sj

November 29, 2007 in Araujo, Robert | Permalink | TrackBack (0)