August 31, 2010
The development of norms that promote the virtuous person
Thanks to Rob for his posting entitled “The disappearing social stigma of STDs.” Like Rob, I am astounded by the attitudes that accept the practices regarding not only our children, but adults, and the surrounding culture in which we live.
Some might say that I am arguing from a particular moral—and perhaps antiquated—perspective. Sin involving sexual activity has been around for a long time. But something new is added to the mix when a major voice in contemporary culture offers rewards for that which physically and morally endangers every member of our society who lives the life that the culture exhorts.
Does the law have a role in any of this? More relevant to the project of this group, does Catholic legal theory have a part to play? My brief answer today to both of these questions is in the affirmative. Does it mean one could pursue what others might consider draconian, puritanical measures and have them incorporated into the civil law? Perhaps, but at this point I think something far more enduring and far more Christ-like is in order.
Rob concludes his post with a critical comment about the presence and wide acceptance of “increasingly permissive sexual norms.” Well, there it is: there are norms regarding the attitudes about casual sex amongst youth and adults alike. So, if there are permissive norms, could alternative norms be proposed as an antidote? It think so, and I suggest that this is where Catholic legal theory plays a role.
I submit that an alternative to increasingly permissive norms that accentuate the exaggerated autonomy of persons that can quickly lead to their harm, i.e., sexually transmitted diseases, have existed and still exist today. These norms are neither punitive nor draconian. Rather, on the other hand, they are designed to cultivate the virtuous person who can be a role model for others. I have been thinking hard about what are role models the contemporary culture presents to youth and adults alike. Are there any? It seems that the role model is the individual of any person—famous or otherwise—whose portrait can nicely fit into the “model” of the anti-hero who is restrained by nothing when it comes to sexual activity. But what if the society and its laws were to cultivate a counterpoint to this? Let’s say that there were social and legal norms cultivated by families, schools, cities, states, and the nation that substituted the model of exaggerated autonomy with that of the noble person who understands the significance of and practices forbearance or temperance, prudence, and fortitude regarding promiscuous sex. What would the existing popular culture say to that? Well, one thing is certain: it would have to acknowledge in some fashion that there is competition for what the contemporary culture can promote. And, I would say that this competition would be most welcome for us and for our posterity.
The disappearing social stigma of STDsI am not at all opposed to sexually active teenagers getting tested for STDs. (I'm pretty sure that sentence has never begun a post on MoJ.) I am troubled, though, that casual sex is such an accepted part of our youth culture -- a youth culture that is shaped in many ways by adults -- that MTV is running a sweepstakes in which prizes are given for announcing your presence at an STD clinic to all your social media contacts on Foursquare. Much of the social stigma associated with STDs, I have always assumed, is not just that you contracted one, but that you were engaged in behavior that potentially exposed you to one. Even accounting for the different social expectations of young men and young women when it comes to sexual "conquests," I would find it jolting to find a teenager who considered it a badge of honor worthy of proclamation to the world that he finds himself in the position of needing to visit the clinic. I find this development to be a fascinating (in a car-crash sort of way) snapshot into the confluence of diminishing private/public boundaries and increasingly permissive sexual norms.
Retribution and Capital Punishment
Thom Brooks has posted a short paper laying out a retributivist argument for rejecting the retributivist justification of the death penalty. His argument is epistemological; it does not rely on the notion that capital punishment is not proportionate to murder or that it constitutes cruel or unusual punishment. Here's an excerpt:
A determination of punishable desert may be substantially a determination concerning the state of mind of another. We cannot read the minds of others, but we can bear witness to their actions against an explanatory narrative that may give us some insight into why another did what they did. The claim here is not that we can never grasp guilt, but that our certainty is always in doubt. This does not mean that retributivism cannot justify punishment because it can offer us ‘no perfectly just judgements’. However, it would mean that capital punishment is especially problematic. When we impose capital punishment on a convicted murderer, there cannot be room for error as the murderer can never be brought back to life afterwards. If there remains a substantial risk of error demonstrated by advances in scientific testing in cases where a person has been sentenced in a fair trial beyond reasonable doubt, then we have good reason on retributivist grounds to reject capital punishment in favour of an alternative sanction.
Should Sarah Palin thank Ruth Bader Ginsburg? (And can CLT help her do so?)I don't always agree with Dahlia Lithwick, but I do appreciate this short essay on the feminism of Ruth Bader Ginsburg, and how her contributions to the law helped make the public and professional careers of women like Sarah Palin more feasible. Can Palin express appreciation for Ginsburg's achievements without endorsing the entire legacy of those achievements? Maybe Palin has, in fact; I don't know, but I do know that there is a tendency to demonize categorically entire worldviews and the folks who hold them, whether they be labeled "radical feminists" or "the religious right." It seems to me that one valuable contribution of Catholic legal theory is its embrace of nuance and complexity; in its refusal to be captured by any particular ideological or partisan political position, CLT should have the capacity to stand back and applaud figures coming from a wide array of perspectives, even while speaking out about where those figures have lost sight of foundational values and/or the fundamental reality of the human person. In other words, what can make CLT seem frustratingly elusive equips it to reach across today's sharply drawn lines and affirm the good, wherever it is found.
August 30, 2010
Trust and the Global Law Firm
This may not fit squarely within the Catholic legal theory genre, but I'm guessing that attorneys who derive value from the Catholic legal theory project are, not coincidentally, more likely than not to see the practice of law as a moral and relational endeavor. In this regard, readers might be interested in my new paper, Trust and the Global Law Firm: Are Relationships of Trust Still Central to the Corporate Legal Services Market? Here's the abstract:
This article explores the concept of trust as it relates to the lawyer’s role and explains how recent trends in the structure, operation, and regulation of law firms may make the traditionally “thick” type of attorney-client trust more elusive, particularly in the context of corporate legal practice. Trust may lose its place as a defining element of the attorney-client relationship as the relationship itself becomes less personal, more distant, and more fungible. At the same time, trust may become even more important to consumers in a globalized economy, thereby giving lawyers an opportunity to reassert their value against increasing competition from providers from other jurisdictions and disciplines. In this regard, the article draws an important distinction between cognitive and affective forms of trust, and suggests that attorney-client trust cannot be captured fully in the language of cost-benefit calculation, for the lawyer’s role presumes a relationship of willingly encountered vulnerability. The story of trust’s marginalization in corporate legal practice may resonate most powerfully with lawyers themselves, who may increasingly struggle to find meaning in their work, and with clients, who may discover that technicians work efficiently until a problem calls for counsel that is not strictly technical. More broadly, though, the story of trust’s marginalization should be of interest to a society that has long empowered attorneys to function as quasi-public actors, for the weakening of trust directly compromises the attorney’s capacity and inclination to introduce public values into the representation. After analyzing the market and regulatory trends exerting pressure on a more relationship-centered type of trust, the article offers some tentative suggestions on how the profession can keep relational trust at the center of the lawyer’s role, even in a globalized, efficiency-driven profession.
I welcome feedback, either in the comments or by email.
August 29, 2010
Some Comments on Black Liberation Theology
Rev. James Martin has a thoughtful statement on Glenn Beck and Liberation Theology in the Huffington Post. While there is much to say about this topic--much more than is appropriate here--a correction is sorely needed. Martin, despite his typical erudition, fails to draw the distinction between the liberation theologies of Sorbino and Gutierrez and the Black Liberation Theology of James Cone. The later was not an off-shoot of radical South American Marxism, but a development within African-American churches in response to the civil rights movement. Cone, the father of Black theology, was interviewed by NPR in 2008. In the accompanying article, NPR noted:
Cone explains that at the core of black liberation theology is an effort — in a white-dominated society, in which black has been defined as evil — to make the gospel relevant to the life and struggles of American blacks, and to help black people learn to love themselves. It's an attempt, he says "to teach people how to be both unapologetically black and Christian at the same time."
August 27, 2010
Greenhouse on Commandments displays, abortion, and church-state "separation"
In this NYT piece, Linda Greenhouse observes, with evident concern, that:
[A] familiar Ten Commandments case is now heading back to the Supreme Court. The court has spent years making a nearly complete hash out of the public display of religious symbols, and the prospect of watching lawyers and justices engage in still more contorted efforts to attach supposedly secular meaning to obviously sectarian objects and texts is not a pleasant one. But the case could provide a window on how committed the Roberts court is to the project that some justices have clearly embraced, that of carving out more space for religion in the public square.
That's an interesting way to describe the "project" -- "carving out more space", as if "religion" is not naturally (and inescapably) part of the "public square". One might just as well comment (with concern) about other courts' project of excluding religion from the public square.
Later in the piece, she suggests that the departure of Justice Stevens makes change in the Court's Establishment Clause doctrine likely:
Cases that concern the separation of church and state are among those on which the retirement of Justice John Paul Stevens is likely to have the greatest impact. For years, Justice Stevens was the Supreme Court’s strictest separationist. For example, in the abortion context, he was the only justice willing to articulate the position that laws incorporating the view that life begins at conception are theological exercises that should be invalidated on Establishment Clause grounds. (The fact that we may soon have to endure another debate over embryonic stem cell research makes me miss Justice Stevens and his wisdom all the more.) Justice Stevens lost most of his battles in the religion cases, but even in defeat he set a marker and made a record. For example, he wrote a powerful dissent this spring from a splintered and nearly incoherent decision that let Congress get away with swapping public land for private under the foot of a five-foot-tall cross on a hilltop in the Mojave National Preserve. In his opinion in that case, Salazar v. Buono, Justice Stevens said the cross sent a “starkly” and “inescapably sectarian message” that couldn’t be evaded by deeming the cross a memorial to the fallen soldiers of World War I.
Justice Stevens was, indeed, the only recent Justice who really thought (or, in any event, who said out loud) that regulations of abortion -- or even just declarations that life begins at conception -- run afoul of the Establishment Clause. It's not clear, though, why the departure of the one justice who held this outlier, and unsound, view (a view that, apparently, Greenhouse agrees with regarding stem-cell research) should be expected to change Establishment Clause doctrine. As she says, Justice Stevens "lost most of his battles" in this area. Which is (in this area) a good thing.
Quote of the day
From Spencer v. World Vision, in defense of religious liberty in hiring:
The core of Judge Berzon’s dissent is the idea that performance of activities that are often performed in a secular context cannot be religious. That is mistaken. When the Pope washes feet on the Thursday before Easter, that is not secular hygiene, and the Pope is not a pedicurist.
Nussbaum on educating for democracy
At the consistently wonderful Books & Culture, check out Christopher Benson's review of Martha Nussbaum's Not for Profit: Why Democracy Needs the Humanities. Benson was optimistic ("What's not to love about a title that promises to argue for a humanistic ideal of education . . .?"), but his hopes were soon dashed. An excerpt:
[E]ven if we accept Nussbaum's contestable telos of education, we should ask if her progressivism is well equipped to achieve it. And the answer, I submit, is "No" for one principal reason. Lacking Augustine's grammar of love and sin, which constrain each other, her vision overestimates the possibilities and underestimates the limitations of education. Nussbaum's case for the humanities perpetuates the modern divorce between faith and reason, relegating faith to the private domain of family and church while elevating reason to the public domain of school. It assumes exclusive participation in the City of Man, ignoring citizenry in the City of God . . . And finally, despite Nussbaum's welcome attention to the emotional life, it views the human being primarily as a thinking thing rather than a desiring animal. Education should produce lovers and not merely democrats. To achieve this, our schools—extending the work of families and churches—will need to rightly order the affections (Augustine) and increase the power of holy attention (Simone Weil).