Mirror of Justice

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?

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

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.

Chait's argument may have some applicability if it's directed against candidates who ask you to vote for them, or against others, because of their religious identity.  If any candidate can make his or her favored arguments (religious or not) on Iraq or health care or gay marriage, then it indeed may be an unwarranted move -- one we ought to deem unfair -- for the candidate to appeal to voters simply on the ground that "I'm a born-again Christian" or "I'm a mass-attending Catholic."  Except for cases at the margins, inferences from a person's religious identity to his/her basic fitness for office are very weak; and even inferences from religious identity to policy positions, while somewhat more reliable, are not nearly as reliable as having the person articulate his/her actual positions (e.g. most evangelicals oppose abortion but not all do).  Offering religious identity as a reason to vote for/against someone (rather than simply lightly mentioning it in the course of giving information about candidates) seems far more likely to encourage irrelevant factors and  prejudices than to shed light on a candidates' qualifications.  And admittedly the apparent trigger for Chait's colum was people saying they'd vote against Romney solely because of his religious identity.

But Chait's argument seems quite wrong if it's applied to the broader question of religion in politics: whether candidates can raise religious arguments in their campaigning, such as "God demands that our laws put the poor first" or "same-sex marriage is outside of the creator's plan for the family and sexuality."  To disqualify such arguments -- to object not that they're wrong, but that they shouldn't even be raised -- surely puts a disability on the religious candidate and the religious voter.  The whole point is that seriously religious citizens cannot confine themselves to secular arguments on "the war in Iraq or health care or gay marriage just as easily as a secular candidate can."  The religious citizen's deep and foundational beliefs about war, social justice, and the family are religious arguments; the secular citizen's foundational arguments on these matters are secular; so to rule out the former set of arguments and not the latter denies the former group of citizens, and not the latter, the ability to set forth their foundational claims and thus participate fully in the political process.

So there's a difference, it seems to me, between religious-identity claims by politicians and voters ("vote for/against X because s/he is/isn't a Christian") and religious-argument claims ("support/oppose this policy -- or a candidate who espouses it -- because it's supported/opposed by God's will").  Although Chait's piece starts out targeting religious-identity claims, unfortunately he ends up attacking religious-argument claims as well.  For example, he criticizes various historical political movements that were based on religious arguments, and he says that the civil rights movement was only a narrow exception to the general rule against invoking religion to argue about policy:

It's certainly true that the civil rights movement was rooted in black churches and the language of religious liberation. But this was an artifact of a unique situation. Slavery, Jim Crow, and the one-party white supremacist character of Southern politics had destroyed every other possible outlet for African American politics other than the church. Civil rights activism took the form of preaching because that was the only form black politics could take.

Ross Douthat has a nice critique of that passage:

There’s an important truth buried somewhere in this strange argument, which is that faith-based politics is more appropriately applied to deep political injustices than to superficial ones. When you invoke Biblical language to oppose slavery or segregation, abortion or an unjust war, there’s a consonance between rhetoric and reality that doesn’t exist when you invoke the New Testament to support progressive taxation or school vouchers.

But as I said, that point is buried; on the surface Chait’s argument is condescending and bizarre. It’s so kind of him to grant the civil rights movement permission to talk about Moses and the Promised Land, so gracious of him to let them appeal to their fellow Southerners’ Christian principles in making the case for human equality, so considerate of him to grant a special exception to the rule of secular politics. . . .

No, this won’t do. There’s no standard you can set that doesn’t fatally compromise the standing of religious Americans, and unduly privilege the interests (and prejudices) of their secular fellow citizens.

Tom

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.

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.

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.

More on Rep. Hyde

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

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!

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.

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

Priests, Laity, and the "Expectation Gap"

Steve's question about the priest as an icon of Christ reminded me of an article in the current Commonweal titled "Mind the Gap: The Return of the Lay-Clerical Divide."  Based on a new book titled American Catholics Today, the article is only available online to subscribers, but here's an excerpt:

Laypeople are increasingly committed to an active role in the church while more and more of their priests prefer a limited role for them, coupled with a more cultic model of priesthood.  These important cultural differences are the product of generational changes among both the laity and the clergy.  Whereas the two groups seemed to converge in the 1960s and '70s, they have diverged since the '80s.  As a result, there are sharp differences between young adult laypeople who expect the clergy to welcome their participation, and young priests who believe the responsibility for parish decisions is theirs.

Laypeople in the post-Vatican II and millennial generations are going in one direction while "John Paul II" priests are going in another.  The full effect of this division is not yet felt or discernible, but that will change in coming years.  In a decade or two, today's older generation of priests and laypeople will be gone, leaving all the decisions to today's younger priests and laity, precisely where the expectation gap is widest.

One Response to Priest as Icon

I forwarded Steve's post to several priest friends of mine asking for their reactions.  One of them sent the following:

"The interpretation of the priest as icon of Christ is much too literal. The priest does not "become" Christ. God forbid! Who would be worthy? No, the priest stands "in persona Christi." That is, he stands in the person of Christ. The priest is called to reflect the presence of Christ in word and action. While not losing his individual personality or neglecting his unique gifts, which are in themselves a gift from God, he is to become transparent - pointing only to Christ. In fact, the priest is one of the four presences of Christ in the Mass, the others being the Word, the species (bread and wine) and, of course, the congregation.  The worst criticism of a priest I ever heard was from an old nun as she was leaving a Mass celebrated by a very popular priest who had a distinctive style of celebration that included many personal adaptations, "He gets in the way of God."

"The stuff about the vestments strikes me as wrong. I have never heard that they refer to Christ as King."

MOJ in "Top 100" law blogs

Or, so says the ABA Journal:  "Where Pope Benedict XVI is the most-cited legal authority. Canon law is interpreted, and Catholic law school news is covered in detail."  Does this blurb really describe what goes on here?  No, probably not.  But hey, they spelled our name right.

The Priest as an Icon of Christ During the Mass

Sometime back Steve Bainbridge pointed to the Catechism's statement that the priest stands for Christ, is an icon of Christ, during the mass. Yet the priest in the most crucial part of the mass refers to Jesus in the third person. When is the priest supposed to be standing for Jesus and when not? I wonder whether the notion that the priest stands for Christ tends to give a view of the priest that is too exalted. Depending on how the notion of standing for Christ is interpreted, it could simply mean that the priest is supposed to be the most servile in the room, but the vestments tend to point to Christ as King, as does the role of the priest as teacher and his role in the consecration. I doubt that anyone attends mass to worship the priest. It does not help me to think of the priest as Christ, nor do fancy vestments help. Without questioning the role of priest as teacher or his role in the consecration, I prefer the view of priest as servant.

Two new blogs of interest

America magazine -- joining First Things and Commonweal -- now has a blog, "In All Things", to which the editors contribute.  Here's Fr. James Martin on the latest in cinematic Church-loathing, "The Golden Compass."  Also, the publication-formerly-known-as-Crisis -- now "InsideCatholic" -- has a blog, "The Inside Blog."  (Obviously, one should check out these blogs only after carefully and regularly immersing oneself in Mirror of Justice.)

The Psychology of Retribution

Kevin Carlsmith and John Darley have posted a new paper that may be of interest to MoJ readers titled Psychological Aspects of Retributive Justice.  (HT: Solum)  It has implications for our conversation regarding the death penalty and deterrence, though I'm not sure what those implications are.  Here's the abstract:

Retributive justice is a system by which offenders are punished in proportion to the moral magnitude of their intentionally committed harms. This chapter lays out the emerging psychological principles that underlie citizens' intuitions regarding punishment. We rely on experimental methods and conclude that intuitions of justice are broadly consistent with the principles of retributive justice, and therefore systematically deviate from principles of deterrence and other utilitarian based systems of punishing wrongs. We examine the recent contributions of social-neuroscience to the topic and conclude that retributive punishment judgments normally stem from the more general intuitive-based judgment system. Particular circumstances can trigger the reasoning-based system, however, thus indicating that this is a dual process mechanism. Importantly, though, evidence suggests that both the intuitive and reasoning systems adhere to the principles of retribution.

The empirical results of this research have clear policy implications. Converging evidence suggests that the formal U.S. justice system is becoming increasingly utilitarian in nature, but that citizen intuitions about justice continue to track retributive principles. The resulting divide leads people to lose respect for the law, which means that they do not rely on the law's guidance in ambiguous situations where the morally correct behavior is unclear. These are the dangers to society from having justice policies based jointly on the contradictory principles of retribution and utility, and we lay out an argument for enacting public policies more exclusively based on retributive principles of justice.

The Dialogue of Cultures

One of my favorite conferences of the year is the Notre Dame Center for Ethics and Culture's annual fall conference.  The year's conference, The Dialogue of Cultures, will take place on the Notre Dame campus from Thusday, Nov. 29 through Saturday, Dec. 1.

The theme is taken from Pope Benedict XVI's 2006 Regensburg address:  "While we rejoice in the new possibilities open to humanity, we also see the dangers arising from these possibilities and we must ask ourselves how we can overcome them. We will succeed in doing so only if reason and faith come together in a new way, if we overcome the self-imposed limitation of reason to the empirically falsifiable, and if we once more disclose its vast horizons. … Only thus do we become capable of that genuine dialogue of cultures and religions so urgently needed today.

Check out the rich fare in the Conference Schedule.

Sacrifice as a Virtue

I'm reading a fascinating book, Joyce Little's The Church and the Culture War (Ignatius Press, 1993) for a class I'm taking, and came across this passage last night:

The fact that self-sacrifice is regarded by less than half of all adults in this country as a positive moral virtue tells us far more about the current state of American religious belief than do all the polls indicating that more than 90 percent of the American public still believes in God.  It tells us that the Trinitarian Godhead which is within itself a communion of self-giving love is no longer the God in whom the American public believes.  It tells us that Christ, the source of the sacred or sacramental ordering of our lives, who becomes Head of the Church and source of that order by virtue of his sacrifice for the sake of the Church, no longer informs American religous sensibilities.

The characterization, the worth, the value, even the social role of acts of sacrifice is clearly one of the sharpest divisions between religiously-oriented and secularly-oriented feminist theorists.  Little's quote made me wonder about a couple of things.  One is whether these differing perspectives on self-sacrifice -- as a "moral virtue" versus a surrender of one's right to "define one's own concept of existence" -- might help explain some of the subtext of the arguments in many of our other great ongoing social debates.  Another is what kind of a God people believe in if they reject the notion of self-giving love or sacrifice as a virtue.

Social Problems and the Self

Patrick Deneen has a wonderful post exploring the ideas of Fr. James Schall, Yves Simon, and what he sees as the most difficult lesson to teach to our current culture:

We have come to understand our "selves" to be what we truly are, and the effort to satiate the appetites of our selves as the only legitimate pursuit against which no obstacle - neither self-mastery, nor familial or cultural norms, or even law - can stand against. At the deepest level, all the various aspects of the contemporary culture that we decry - on the Right, the loss of family values, on the Left, the environmental crisis - come back to our inability to understand and accept this truth to which Fr. Schall points us: the truth that human freedom consists in a form of self-mastery, aided by the customs and laws of our families and communities. The ways that we currently degrade both the culture and the natural world is directly attributable to our inability to govern ourselves, to see our "selves" as a source of our problems rather than some kind of external phenomenon or cause. To use a wonderful example from Jason Peters, we are prone constantly to complain how bad traffic is without considering for a moment that we were part of what constituted the gridlock.

Deneen explains further:

My constant attention to the problems we face is not intended as a wake up call for innovation and invention: it's rather to insinuate the possibility that we are destroying ourselves by degree because we refuse to govern our appetites or even see these appetites as problematic. I'm highly dubious that we will "invent" our way out of the need to govern ourselves, and am dead certain that nature and the order of the world will not indefinitely brook our misbehavior. We should be mindful that our near-automatic response to the fact of depletions that surround us - that we MUST find other means to continue running our current way of life - is directly the result of our unwillingness to understand that "the disorder of the world originates in disorder of soul". The problem is not intrinsically the various depletions we face (but, boy, are they problems): the problem lies in the more fundamental motivation of our thoughtless response that avoids considering whether our behavior has anything to do with the problems we face, and might in fact further exacerbate those problems, as well as create greater ones, the longer we refuse to face this possibility.

Rod Dreher comments that "the most important political task for Americans is not whether we will choose to be governed by Republicans or Democrats. Rather, it's whether or not we will govern ourselves and our insatiable appetites."   

"Family-friendly cities"

Joel Kotkin, author of "The City" (a great read) has an op-ed in today's Wall Street Journal called "The Rise of Family Friendly Cities."  To set the stage, here's a bit from that book:

"Cities are humanity's greatest creation," Kotkin writes.  And, "[t]o be successful today, urban areas must resonate with the ancient fundamentals -- they must be sacred, safe, and busy."  Kotkin suggests that one of the new "urban renewal" strategies -- i.e., fading cities re-inventing themselves as hip, edgy congregating points for so-called "young creatives" -- is not likely to succeed because it departs so markedly from these "ancient fundamentals" in failing to appreciate the role that the sacred, and the religious, long played in the developing and sustaining of cities:  "Almost everywhere, the great classical city was suffused with religion and instructed by it.  'Cities did not ask if the institutions which they adopted were useful . . . .  These institutions were adopted because religion had wished it thus.'  In contemporary discussions of the urban condition [including, I'm afraid, many "new urbanist" discussions], this sacred role has too often been ignored."

And, here is an essay by Kotkin on the importance of religion, and of the "sacred", to the city. 

Kotkin has become known for, among other things, deflating the recently-big-buzz idea that the way for cities to thrive is to attract young "creative class" types to hip, coffee-shop-populated urban fun-zones.  (See, e.g., Richard Florida's "Rise of the Creative Class."  In today's essay, Kotkin returns to this theme:

For much of the past decade, business recruiters, cities and urban developers have focused on the "young and restless," the "creative class," and the so-called "yuspie"--the young urban single professional. Cities, they've said, should capture this so-called "dream demographic" if they wish to inhabit the top tiers of the economic food chain and enjoy the fastest and most sustained growth. . . .

There is a basic truth about the geography of young, educated people. They may first migrate to cities like New York, Los Angeles, Boston or San Francisco. But they tend to flee when they enter their child-rearing years. Family-friendly metropolitan regions have seen the biggest net gains of professionals, largely because they not only attract workers, but they also retain them through their 30s and 40s. . . .

The evidence thus suggests that the obsession with luring singles to cities is misplaced. Instead, suggests Paul Levy, president of Philadelphia's Center City district association, the emphasis should be on retaining young people as they grow up, marry, start families and continue to raise them. . . .

Only 14% of Center City residents have children, Mr. Levy says, and roughly half its young people depart once they enter their mid-30s. "If you want to sustain the revival you have to deal with the fact that people with six year olds keep moving to the suburbs," Mr. Levy suggests. "Empty nesters and singles are not enough."

. . . Boosters such as Mr. Levy look increasing towards reviving the traditional family neighborhoods which surround Center City. His organization has worked closely with local public and private schools, church and civic organizations to build up the support structures that might convince today's youthful inner city urbanites to remain as they start families. "Our agenda," Mr. Levy says, "has to change. We have to look at the parks, the playgrounds and the schools."

Such a shift in emphasis could mark a new beginning for many long-neglected urban neighborhoods across the country. It's time to recognize that today, as has been the case for millennia, families provide the most reliable foundation for successful economies.

More on Collegiate Contraception and Public Subsidy

I am grateful that Michael posted Professor Ellen Wertheimer’s thoughts on our postings concerning the public subsidies of collegiate contraception. I had the pleasure of meeting her almost four years ago when I visited Villanova Law for a couple of days. I am also very grateful for Rick’s thoughtful response. Since I have already spent some time on commenting on this issue, I will present my agreement with Rick’s response to Professor Wertheimer.

However, there is one additional point that I would like to make on this issue. To those who would vote “yes” to repealing the law reducing public subsidies, I pose a question: will the public subsidies end with the underwriting of contraceptives for collegians? I previously indicated that I believe this would encourage more (casual) sex amongst young people: if contraceptives are free or low-cost, why not? What is there to lose? Lots, I suggest; lots. For example, what happens when the incidence of sexually transmitted disease increases if sexual activity is promoted and also increases? Who will pay for the costs associated with these additional expenses? Moreover, who will claim responsibility for the psychological damage that will likely result to young people who come to realize that premarital sex brings other burdens (such as self-objectification and objectification of the other)? What are the costs—financial, social, and individual—that will result when these concerns become manifested? Moreover, what precedents will these subsidies instigate? I can think of several, but I’ll offer a general response for the time being: if someone’s sexual gratification is to be subsidized, what should the response be to claims such as this: “I want whatever gratifies me to be subsidized too!”

If the “yeas” carry the day on the issue of collegiate contraception, will those voting in the affirmative be prepared to vote “yes” when high schoolers, junior highschoolers, and elementary schoolers want their contraception publicly subsidized, too? If any MOJ contributor or reader thinks I am getting a bit carried away on the topic, I take the opportunity to refresh their recollection about what is going on in one region of the country that is contributing to the promotion of sexual activity amongst much younger people in a public school system [HERE].    RJA sj

Coontz and Marriage

Thanks to Michael for his posting on Professor Stephanie Coontz’s interesting but defective account of history—particularly within the Christian and western tradition of which she speaks. I have some questions about how she portrays the “state” of the 16^th century, but I’ll put them aside for the present moment. I shall, however, pursue another issue of hers today. She tailors history to suit her purpose (e.g., she confuses the consent given in a Christian marriage by the husband and wife with the “couple’s wishes”), which appears in both the first and last observations she makes. She, and her legal authority, Professor Nancy Polikoff, are attempting to redefine marriage. To substantiate in part my claim, I turn to the American University law faculty profile of Professor Polikoff, which states:

For 30 years, she has been writing about and litigating cases involving lesbian and gay families. Her articles have appeared in numerous law reviews, and her history of the development of the law affecting lesbian and gay parenting appears as a chapter in J. D’Emilio, W. Turner, and U. Vaid, eds., Creating Change: Sexuality, Public Policy, and Civil Rights (2000). She helped develop the legal theories in support of second-parent adoption and visitation rights for legally unrecognized parents, and she was successful counsel in In re M.M.D., the 1995 case that established joint adoption for lesbian and gay couples in the District of Columbia, and Boswell v. Boswell, the 1998 Maryland case overturning restrictions on a gay noncustodial father’s visitation rights. She is currently at work on her forthcoming book, Valuing All Families, to be published by Beacon Press in 2007.

It seems that The New York Times is cooperating in their enterprise. Their tactic (Coontz and Polikoff) seems to be this: first let us forget history and then let us rewrite it the way we approve; second, let us privatize marriage so that whatever relationship someone wants they can have and call it marriage; and third, once the second point has been accepted by society because it is “private”, efforts will be pursued to institutionalize and mandate acceptance of alternative forms of “marriage.” I, for one, do not think that the Coontz-Polikoff schema is to privatize marriage. But if I am wrong in assessing their objective, I ask their pardon. However, I must ask something in return: that Professor Coontz correct her account of Christian marriage so that it will acknowledge what the Church has taught and continues to teach—that marriage is not a purely human institution, but is one established by God and protected by the Church—an institution that takes one man and one woman and brings them into a spiritual and physical union with one another because they were created for one another.     RJA sj

The Establishment Clause

Winnifred Fallers Sullivan is Associate Professor of Law and Director of the Law and Religion Program at SUNY-Buffalo. She writes about the intersection of religion and law in the modern period, particularly with respect to the comparative phenomenology of religion in contemporary legal contexts. She is the author most recently of The Impossibility of Religious Freedom (Princeton, 2005).

For two interesting posts by Professor Sullivan on recent developments in establishment clause jurisprudence, click here and here.

Response to Prof. Wertheimer

Thanks to Prof. Wertheimer for reading, and for writing in to Michael.  In her message to Michael P., she writes, "I am at a loss to explain, much less justify, any position that creates a greater risk of more unwanted pregnancies and, a fortiori, more abortions, no matter what other issues may be lurking under the surface."  Really?  No matter what?  I yield to no one in my conviction that, as she observes, abortion is a "great[] evil".  That said, it remains unclear to me why one would think that this observation renders inexplicable or unjustifiable the position that perhaps not every measure that holds out the prospect of contributing to a reduction in the "risk of more unwanted pregnancies" is, therefore, a measure that must, or even ought to, be supported by those who oppose abortion.

She also writes, "[i]ncreasing the cost of contraception thus contributes to the divide between the rich and the poor in our society, surely not a goal devoutly
to be wished."  We all agree that increasing this divide is not the goal.  I wonder, though -- I do not have the figures -- how much of the proposed subsidy would go to the poor and how much would simply involve a transfer from some middle-class taxpayers to some middle-class or well-off students?  Does this matter?

In addition, Prof. Wertheimer notes that "[i] is also perhaps worth pointing out that many of those who will suffer by reason of the price increase are not themselves Catholic."  Why does it matter -- given that the subsidy-reduction does not involve coercion or burden non-Catholics' freedom-of-conscience -- that non-Catholics, and not just Catholics, are affected by a reduction in the subsidy?

Finally, and all this being said, it seems that the divide on Michael's initial question -- i.e., "How would *you* vote" -- is inevitably going to reflect, in the end, different views about the tricky connections between law, policy, culture, and conduct.  Questions about these connections are, of course, really tough; they are also, it seems to me, really important and interesting.  For example:  Prof. Wertheimer suggested that "any position that creates a greater risk of more unwanted pregnancies" is, for that reason, difficult to justify.  It seems to me, though, that the failure to communicate to unmarried college students that they ought not to be sexually active, and the failure to attend to the messages and values transmitted in law and through culture to unmarried college students with respect to sexual activity, "create[] a . . . risk of . . . unwanted pregnancies" (and therefore of more abortions).  How can these failures be justified?  How could they be -- should they be?  may they be? -- remedied?

One poor Jesuit's point of view?

Dear Fathers and Brothers, Pax Christi

We are all aware of the response given to the most recent encyclical of Pope Paul VI, Humanae vitae, about the problems raised by the question of contraception. While many completely accept the teaching of the encyclical, a number of the clergy, religious and laity violently reject it in a way that no one in the Society can think of sharing. Yet, because the opposition to the encyclical has become widespread in some places, I wish to delay no longer before calling to mind once more our duty as Jesuits. With regard to the successor of Peter, the only response for us is an attitude of obedience which is at once loving, firm, open and truly creative. I do not say that this is necessarily painless and easy.

In fact, on various grounds and because of particular competence, some of us may experience certain reservations and difficulties. A sincere desire to be truly loyal does not rule out problems, as the Pope himself says. A teaching such as the one he presents merits assent not simply because of the reasons he offers, but also, and above all, because of the charism which enables him to present it. Guided by the authentic word of the Pope -- a word that need not be infallible to be highly respected -- every Jesuit owes it to himself, by reason of his vocation, to do everything possible to penetrate, and to help others penetrate, into the thought which may not have been his own previously; however, as he goes beyond the evidence available to him personally, he finds or will find a solid foundation for it.

To obey, therefore, is not to stop thinking, to parrot the encyclical word for word in a servile manner. On the contrary, it is to commit oneself to study it as profoundly as possible so as to discover for oneself and to show others the meaning of an intervention judged necessary by the Holy Father.

Once we have correctly grasped the meaning of the encyclical, let us not remain passive. Let us not be afraid to rectify our teaching, if need be, while at the same time explaining why we are doing so. Let us develop our teaching as profoundly as possible rather than restrict it. Let is strive for a better pastoral theology of the family and of the young people. We must not forget that our present world, for all its amazing scientific conquests, is sadly lacking a true sense of God and is in danger of deceiving itself completely. We must see what is demanded of us as Jesuits. Let us collaborate with others in centers of the basic research on man, where the specific data of Christian revelation can be brought together with th