Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

A Member of the Law Professor Blogs Network

Wednesday, August 27, 2008

The Scarlet Letter

Many years ago in his novel, The Scarlet Letter, Nathaniel Hawthorne wove deftly into his morality tale the letter “A” sewn to Hester Prynne’s clothing. Of course, the emblem enabled Hawthorne to develop a story that probed a number of important norms about our human existence. I would like to borrow his use of the letter “A” in its reddish fashion—perhaps recalling the color of blood—to probe another question which has once again surfaced frequently in the news regarding the position of various influential people who hold high public office. But here the red letter “A” does not refer to concupiscence but to abortion. Since the question of what does the Church teach has recently surfaced once again by prominent public officials who claim allegiance to the Catholic Church and her teachings.

But, what are those teachings? Perhaps this brief anthology may help all of us who ask questions about the views expressed by prominent persons about the Church’s teachings:

We might begin with that extraordinary fragment of the Didache from the first century that is pregnant, if you will, with several important teachings: Do not murder; do not commit adultery; do not corrupt boys; do not fornicate; do not steal; do not practice magic; do not go in for sorcery; do not murder a child by abortion or kill a newborn infant… Do not be double-minded or double-tongued, for a double tongue is a deadly snare

Tertullian affirmed the essential principle in the early second century: To prevent birth is anticipated murder; it makes little difference whether one destroys a life already born or does away with it in its nascent stage. The one who will be a man is already one.

The first Council of Mainz in 847 reconsidered the penalties against abortion which had been established by preceding Councils. It decided that the most rigorous penance would be imposed on women who procure the elimination of the fruit conceived in their womb.

The Decree of Gratian reported the following words of Pope Stephen V: That person is a murderer who causes to perish by abortion what has been conceived.

Moving forward in time, we might consider the 1679 Decree of the Holy Office (the predecessor of the Congregation for the Doctrine of the Faith) condemning a number of positions including the following: it is permitted to bring about an abortion before the animation of the foetus, lest the girl found pregnant be killed or defamed; it seems probable that every foetus (as long as it is in the womb) lacks a rational soul and begins to have the same at the time that it is born; and consequently it will have to be said that no homicide is committed in any abortion.

In 1974, the Congregation for the Doctrine of the Faith had this to say: The gravity of the problem comes from the fact that in certain cases, perhaps in quite a considerable number of cases, by denying abortion one endangers important values to which it is normal to attach great value, and which may sometimes even seem to have priority. We do not deny these very great difficulties. It may be a serious question of health, sometimes of life or death, for the mother; it may be the burden represented by an additional child, especially if there are good reasons to fear that the child will be abnormal or retarded; it may be the importance attributed in different classes of society to considerations of honor or dishonor, of loss of social standing, and so forth. We proclaim only that none of these reasons can ever objectively confer the right to dispose of another’s life, even when that life is only beginning. With regard to the future unhappiness of the child, no one, not even the father or mother, can act as its substitute—even if it is still in the embryonic stage—to choose in the child’s name, life or death.

For those who are attracted to both the spirit and the texts of the Second Vatican Council, we have in the Pastoral Constitution on the Church in the Modern World this: Furthermore, whatever is opposed to life itself, such as any type of murder, genocide, abortion, euthanasia or wilful self-destruction, whatever violates the integrity of the human person, such as mutilation, torments inflicted on body or mind, attempts to coerce the will itself; whatever insults human dignity, such as subhuman living conditions, arbitrary imprisonment, deportation, slavery, prostitution, the selling of women and children; as well as disgraceful working conditions, where men are treated as mere tools for profit, rather than as free and responsible persons; all these things and others of their like are infamies indeed. They poison human society, but they do more harm to those who practice them than those who suffer from the injury. Moreover, they are supreme dishonor to the Creator… For God, the Lord of life, has conferred on men the surpassing ministry of safeguarding life in a manner which is worthy of man. Therefore from the moment of its conception life must be guarded with the greatest care while abortion and infanticide are unspeakable crimes.

And this from Pope John Paul II in Evangelium Vitae in 1995: It is frequently asserted that contraception, if made safe and available to all, is the most effective remedy against abortion. The Catholic Church is then accused of actually promoting abortion, because she obstinately continues to teach the moral unlawfulness of contraception. When looked at carefully, this objection is clearly unfounded. It may be that many people use contraception with a view to excluding the subsequent temptation of abortion. But the negative values inherent in the “contraceptive mentality”—which is very different from responsible parenthood, lived in respect for the full truth of the conjugal act-are such that they in fact strengthen this temptation when an unwanted life is conceived. Indeed, the pro- abortion culture is especially strong precisely where the Church’s teaching on contraception is rejected. Certainly, from the moral point of view contraception and abortion are specifically different evils: the former contradicts the full truth of the sexual act as the proper expression of conjugal love, while the latter destroys the life of a human being; the former is opposed to the virtue of chastity in marriage, the latter is opposed to the virtue of justice and directly violates the divine commandment “You shall not kill”. But despite their differences of nature and moral gravity, contraception and abortion are often closely connected, as fruits of the same tree. It is true that in many cases contraception and even abortion are practised under the pressure of real- life difficulties, which nonetheless can never exonerate from striving to observe God’s law fully. Still, in very many other instances such practices are rooted in a hedonistic mentality unwilling to accept responsibility in matters of sexuality, and they imply a self-centered concept of freedom, which regards procreation as an obstacle to personal fulfilment. The life which could result from a sexual encounter thus becomes an enemy to be avoided at all costs, and abortion becomes the only possible decisive response to failed contraception.

These are but a few points made over the millennia of the Church’s teachings on the question of abortion. Those who claim to know this tradition may wish to consult these sources and the many others that exist and are readily accessible. But regardless of the source or the period in which it was promulgated, the teachings remains the same in spite of what some influential voices may suggest to the contrary.

RJA sj

August 27, 2008 in Araujo, Robert | Permalink | TrackBack (0)

On Abortion ... from dotCommonweal

“New study finds finds social and economic supports for women significantly reduce abortions”

Posted by David Gibson

That’s the promise of the new study released today by Catholics in Alliance for the Common Good. According to the group’s news release, the study is the first of its kind and looks at the “long- and short-term effects of public policy on the abortion rate over a twenty-year period. The findings reveal that social and economic supports for women and families dramatically reduce the number of abortions. As Democrats gather in Denver for their national convention, and as Republicans prepare to gather next week, the study offers compelling findings that pro-life and pro-choice leaders from both political parties can unite behind to reduce abortions.”

Indeed, if this holds true, the findings would (I would think) provide ammunition for those looking to move beyond the stalemate over Roe v. Wade. Apparently the findings were presented at a “town hall” meeting in Denver with Sen. Bob Casey, Rep. Heath Shuler and others, and sponsored by Democrats for Life of America. I haven’t seen a write-up, so don’t know what they may have added.

Catholics in Alliance commissioned the study, which was conducted by Joseph Wright, a political science professor at Penn State University and a visiting fellow at the University of Notre Dame, and Michael Bailey, a professor of American government at Georgetown University. You can read it here (in a 19-page PDF file). Tom Roberts at NCR also has coverage.

August 27, 2008 in Perry, Michael | Permalink | TrackBack (0)

More on human dignity

I am grateful to Rob for bringing attention to the work of Professor Luban regarding human dignity. The subject of human dignity and what it is has a rich consideration in the Compendium of the Social Doctrine of the Church. An examination of the many treatments in the Compendium reveals that there are specific contextual considerations as well as more general understandings. In spite of the fact that this forum is the Mirror of Justice, I cannot do justice to the vast treatment the Compendium offers in this posting. However, one of the appealing explanations of human dignity is that offered by Pope John Paul II in this encyclical letter Centesimus Annus where he said there exists something "which is due to man because he is man." Human dignity is not a property that can be bargained for or given away or forcibly removed. It is innate in the existence of each human who bears the divine image of God. I think Rob has come across an important topic vital to our common enterprise that can engaged us for a long time to come.

RJA sj

August 27, 2008 in Araujo, Robert | Permalink | TrackBack (0)

What is the nature of human dignity?

I'm becoming more intrigued by the possibility of articulating some widely accessible and legally relevant content within the concept of human dignity.  In that vein, I was struck by this passage from David Luban's new book, Legal Ethics and Human Dignity:

"I suspect that human dignity is not a metaphysical property of individual humans, but rather a property of relationships between humans -- between, so to speak, the dignifier and the dignified.  To put it another way, 'human dignity' designates a way of being human, not a property of being human."

This reminded me of the following passage from Gaudium et spes:

"God did not create man as a solitary, for from the beginning 'male and female he created them.'  Their companionship produces the primary form of interpersonal communion.  For by his innermost nature man is a social being, and unless he relates himself to others he can neither live nor develop his potential."

Still, does (or should) Catholic legal theory be open to approaching human dignity as a "way of being human," rather than as a "property of being human?"

August 27, 2008 in Vischer, Rob | Permalink | TrackBack (0)

Tuesday, August 26, 2008

Challenging the "ordinary religion of the law school classroom"

Responding to a lot of blawgosphere debate about the law school classroom's potential to function as a collaborative community, my colleague Jerry Organ criticizes the mixed signals we send to students about competition versus collaboration, and he suggests that a better way is possible.

August 26, 2008 in Vischer, Rob | Permalink | TrackBack (0)

Olympics done, China back to arresting bishops

Story here:

China's most prominent "underground" Catholic bishop was arrested on Sunday, August 24: the day that also saw the closing ceremonies of the Olympic Games in Beijing.

Bishop Julius Jia Zhiguo of Zhengding was taken into custody by several police officers at Wuqiu cathedral. No immediate reason was given for his arrest, and authorities have not disclosed where the aging bishop is being held.

The 73-year-old Bishop Jia, who heads an active diocese of over 100,000 Catholics in the Hebei diocese, spent 15 years in prison, from 1963 to 1978. Since his release he has been re-arrested at least 12 times; ordinarily he has been detained for a few days of interrogation each time. He has been living under house arrest since 1989.

During the Olympic Games, Chinese Christians had been warned not to organize public worship. About 1,000 Catholics in Zhengding defied those orders to join Bishop Jia for a Mass celebrating the feast of the Assumption at Wuqiu cathedral on August 15. . . .

I'm as happy as anyone about Michael Phelps, Coach K. and the "Redeem Team", etc.  But . . . the Olympics-related whitewash given to China by the press, the IOC, by too many governments, and by corporate sponsors is, well, disgusting.

August 26, 2008 in Garnett, Rick | Permalink | TrackBack (0)

Should Catholic law schools "game the system?"

The Wall Street Journal has a front-page story about the debate over whether US News should start counting the credentials of part-time students in creating its law school rankings.  A number of Catholic law schools are among those that place lower-LSAT/GPA students in part-time programs, then admit them to the regular program in the second year (when they no longer count for US News purposes).  Some deans argue that changing the rankings will push schools to stop admitting students who might turn out to be capable lawyers.  Former Toledo dean Phillip Closius, whose school skyrocketed from the fourth to the second tier, is candid: "U.S. News is not a moral code, it's a set of seriously flawed rules of a magazine, and I follow the rules...without hiding anything," he says.  Larry Ribstein wonders how this is different from the businesses that "game the system" in terms of their accounting practices.  Former Houston dean Nancy Rapoport recounts that managing the rankings is like “trying to meet analysts' quarterly expectations by massaging the numbers."  John Steele notes that this is the most powerful kind of teaching by law schools: teaching by example. 

Does a Catholic law school have a responsibility to its current students to be as highly ranked as possible, within the limits of the US News rules?  (If so, does a Catholic-owned business have a responsibility to its investors to maximize profit within the limits of the law?)  Should Catholic law schools be held to a higher standard when it comes to "cooking the books?"  [Inescapably fallen human nature alert: I like to think that I favor the US News change because it eliminates an unfair way to avoid the spirit of the reporting rules, but perhaps it's because my current institution does not have a part-time program and thus stands to benefit from the change.]

August 26, 2008 in Vischer, Rob | Permalink | TrackBack (0)

Pennsylvania homeschooling decision

There seems to be a lot of litigation about home-schooling. After the California decision (see a post here), the Third Circuit has now weighed in with a decision involving Pennsylvania's regulation of home-schooling. (Here is the decision in Combs v. Homer-Center School District, which the Third Circuit decided on August 21, 2008.)

The decision is quite interesting. There is a fascinating discussion in the concurring opinion by Chief Judge Scirica. In that opinion, Chief Jusge Scirica addresses the parents' claim under Pennsylvania state law and concludes that the parents had not shown that the regulations violated a "specific tenet" of their religion because the parents had only cited general Biblical statements supporting parental control over their children's religious education. The parents could not cite a "specific" tenet of their religion prohibiting state review of their children's education.

On the federal issues, the court concluded that Smith controlled the free exercise issue. On the parental rights/substantive due process claim, the court concluded that parental right to control education did not extend to the type of claim the parents asserted in this case (the right to free from all reporting requirements and "discretionary" state oversight). The Court rejected a claim based on Yoder because the Pennsylvania requirements didn't threaten the families' entire way of life.

The court's treatment of the federal issues is in line with other treatments of parental rights issues, but this standard approach seems to underestimate the impact on parents and to be too willing to defer to state power.

Richard M.

August 26, 2008 in Myers, Richard | Permalink | TrackBack (0)

Monday, August 25, 2008

Biden as VP Candidate: An Episcopal Headache?

Biden VP nomination could touch off episcopal split
By JOHN L. ALLEN JR.
August 25, 2008

As the Democratic National Convention opens in Denver, here’s an irony worth pondering: Perhaps the most disappointed group in America over the choice of a Roman Catholic as the party’s nominee for vice president may well be the country’s Catholic bishops.

That’s not necessarily any reflection on the personal merits of Delaware Senator Joseph Biden, but rather what kind of Catholic he is, and what that means for the American bishops between now and November 4 (and perhaps for four or eight years after that).

August 25, 2008 in Perry, Michael | Permalink | TrackBack (0)

Abortion Prosecution

John Bogart has posted his paper, Crime and Moral Condemnation.  Here's the abstract:

An examination of the enforcement of California's anti-abortion statute over a 50 year period in Sacramento, focusing on particular prosecutions suggests that abortion was not treated as a serious moral wrong. The erratic pattern of enforcement and sentencing suggests prosecution under the feticide statute was part of an effort by the California Medical Association to exert greater control over medical services, not that there was any significant condemnation of abortion providers or of women obtaining abortions.

August 25, 2008 in Vischer, Rob | Permalink | TrackBack (0)