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August 31, 2011

Sisk and Heise on Religious Liberty Claims by Muslims

Many of our conversations on MoJ relate to religious liberty, and we should be concerned about how our legal system's commitment to religious liberty is carried out across faith traditions.  My colleague Greg Sisk has a new paper out (with Michael Heise) examining the data regarding religious liberty claims by Muslims.  Here's the abstract:

In our continuing empirical study of religious liberty decisions, we find that Muslims asserting free exercise or accommodation claims were at a distinct and substantial disadvantage in the lower federal courts for the period of 1996-2005. Holding other variables constant, the predicted likelihood for success for non-Muslim claimants in religious free exercise or accommodation claims was approximately 38 percent, while the predicted probability for success for Muslim claimants fell to approximately 22 percent (with the disparity being slightly higher among court of appeals judges). In sum, Muslim claimants had only about half the chance to achieve accommodation that was enjoyed by claimants from other religious communities.

Drawing on insights from legal studies, political science, and cognitive psychology, we discuss alternative explanations for this result, including (1) a cultural antipathy to Muslims as a minority religion outside the modern American religious triumvirate of Protestants, Catholics, and Jews; (2) growing secularism in certain sectors of society and opposition to groups with traditional religious values; (3) the possibility that claims made by Muslims are weaker and deserve to be rejected on the merits; and (4) the perception that followers of Islam pose a security danger to the United States, especially in an era of terrorist anxiety. Presenting a new threat to religious liberty, the persistent uneasiness of many Americans about our Muslim neighbors appears to have filtered into the attitudes of even such well-educated and independent elites as federal judges.

For Greg's earlier posts on the topic of Muslims in America, check out this or this.

Posted by Rob Vischer on August 31, 2011 at 04:02 PM in Vischer, Rob | Permalink | Comments (1) | TrackBack

Steve Smith on "The Plight of the Secular Paradigm"

Great stuff, as always, from Steve Smith:

The Plight of the Secular Paradigm

Steven Douglas Smith

University of San Diego School of Law

San Diego Legal Studies Paper No. 11-062


For many it has been axiomatic that liberal democratic governments and the laws they impose must be “secular”; this assumption pervades both constitutional law and much political theory. But there are indications that this secular “paradigm of legitimacy” is losing its grip; thus, while urging a rehabilitation of secularism, Rajeev Bhargava suggests that “[o]nly someone with blinkered vision would deny the crisis of secularism.” This essay considers that crisis.

Part I of the essay discusses the nature of a “paradigm of legitimacy.” Part II outlines the strategies of assimilation and marginalization that historically have supported such paradigms and considers the paradigm shifts that can occur when these strategies prove ineffective. Part III illustrates these observations by reviewing the process by which, beginning in the fourth century, a Christian paradigm replaced an earlier Roman one and then in turn declined in favor of a more secular view. Part IV, the longest in the essay, discusses the rise of the secular paradigm, the strategies that have supported it, and the increasing futility of those strategies that have led to the present distress.

Posted by Rick Garnett on August 31, 2011 at 03:10 PM in Garnett, Rick | Permalink | Comments (0) | TrackBack

More on natural law and judging: Baur replies to Arkes

The conversation continues.  Prof. Michael Baur wrote, here, about the role of natural law in the work of judges; Prof. Hadley Arkes responded, here; and now Prof. Baur replies (most of his reply is after the jump):  

. . . I am grateful to Rick Garnett for facilitating this discussion, and to Hadley Arkes for offering his own input and for inviting a further response from me.  I am pleased to join the company of those who find themselves in “heated agreement” with Prof. Arkes, but I would be even more pleased if we together might also convert at least some of this thermal energy into light.


Of central importance here is the question of whether one can affirm the soundness and contemporary relevance of natural law thinking, without thereby accepting what Judge O’Scannlain calls the “aggressive” natural law view.  According to Judge O’Scannlain, the “aggressive” natural law view is problematic since it would license judges to “legislate from the bench” (that is, it would license them to engage in illegitimate judicial activism or judicial law-making).  A central aim of my Fordham Law Review response was to show that the Judge was fundamentally correct to hold that one can affirm the soundness and contemporary relevance of natural law thinking, without thereby affirming what he calls the “aggressive” natural law view (however, as I also tried to show, I believe that Judge O’Scannlain’s articulation of his position could benefit from some further conceptual clarification).  Hadley Arkes, for his own part, apparently agrees with my basic point (that one can affirm the soundness and contemporary relevance of natural law thinking, without thereby being an “aggressive” natural law thinker); but he denies that he himself is an aggressive natural law thinker.  In my Fordham Law Review response, I expressed no judgment of my own about whether Judge O’Scannlain’s characterization of Arkes’s position (as an instance of “aggressive” natural law thinking) is in fact an accurate one.  However, I did observe (in footnote 3) that “[f]or Judge O’Scannlain, the work of Hadley Arkes qualifies as an example of ‘aggressive’ natural law theorizing”; and I referred to a passage from Prof. Arkes’s recent (2010) book that (among other passages) led Judge O’Scannlain to his particular characterization.

But apart from the question of whether or not Judge O’Scannlain is right to say that Prof. Arkes is an “aggressive” natural law thinker, it is probably fair to say that Prof. Arkes’s rhetorical manner can at times be spicy and aggressive.  This manner is on display when he suggests that I myself am guilty of affirming a self-refuting proposition.  For Prof. Arkes, this self-refuting proposition can apparently be expressed in the following form: “Everything is subject to a context of actual and concrete practices, except for this very proposition – or the truth-value of this very proposition – which I am now affirming and which is not subject to any context.”  Indeed, affirming a proposition of this kind would be performatively self-undermining.  But Prof. Arkes misunderstands me if he thinks that I was so unreflective (and so unfamiliar with the rich legacy of retortion-style arguments in the history of philosophy) to have engaged in this sort of self-contradiction.

Prof. Arkes attributes to me the view that “everything is subject to a context of actual and concrete practices.”  But my actual statement (which he duly notes, but apparently misunderstands) was the following: “[I]t is never the case that the norms on the basis of which judges (or we) may legitimately evaluate existing positive laws, can be given apart from the actual and concrete practices, interactions, and patterns of behavior (in short, the positings) that inform us and make us the social, linguistic, concept-wielding, and hence rational beings that we are.”  When I say here that moral norms can never be “given” apart from our actual and concrete practices (positings), I am making the basic Aristotelian-Thomistic (hylomorphic) point that the natural law (i.e., moral norms) can never be given (can never be present, can never be operative, can never be actualized), except in and through the actual and concrete practices (positings) that make us the rational beings that we are.  [Of course, we are rational beings also in the sense that we belong to a kind of being that possesses the potentiality to learn naturally (by virtue of a principle immanent in us, and not as a result of some force or directive imposed upon us from without) how to engage in activities that are uniquely the activities of rational beings; but we speak about this potentiality only in light of the actualities which manifest the potentiality, and so it is more fitting (at least from an Aristotelian-Thomistic point of view) to speak of the actuality (and not merely the potentiality) as that which “makes us” the rational beings that we are.]  My basic Aristotelian-Thomistic point here is a decidedly anti-Platonic point, insofar as it amounts to a denial of the view that moral norms which properly guide our conduct might somehow be given or exist (first) in some ideal world or in some disembodied mind, and then (subsequently) become known and “applied” by us in our actual, concrete practices.  On Aquinas’s account (putting aside Aristotle for the moment), our being subject to the natural is law is not to be construed as our being subject to a law that somehow exists apart from our own activity, in some Platonic heaven, and from which we might glean certain moral principles for the rational ordering of our lives.  Rather, our being subject to the natural law is better understood simply as our being subject to the norms of rationality insofar as we are the rational beings that we are (notice that the natural law is “natural” to us in the Aristotelian-Thomistic sense, which is to say that the natural law is not a set of rules or guidelines that we “read off” of from some source that is external to us; rather, it is simply the immanent set of norms that animates our thinking and doing as the rational beings that we are).  This natural law (our unique way of participating – as rational beings – in the divine ordering of the universe as a whole) is not given, present, or actual except in and through our own (rational) activity (that is, in and through our concrete and actual practices which make us the rational beings that we are).  And so if one had an especially active imagination regarding retortion-style arguments, one could show that any attempt to regard one’s own thinking as an exception to what I am calling my “basic Aristotelian-Thomistic point” would entangle the attempter in performative self-refutation.  The performatively self-refuting proposition could be expressed in something like the following form: “Even if every other instance in which the natural law is given, present, actual, and operative, is an instance of some concrete, actual practice by some human being acting as a rational being, there is one instance in which the natural law is not present this way, namely it is not present this way in my own concrete and actual practice of cogitating about the natural law here and now.”

In his response, Prof. Arkes suggests that my thinking on the topic is much like the thinking of Chesterton’s English yachtsman, who believed that he was planting the British flag at some foreign temple, when in fact he was only returning to the Pavilion at Brighton.  In one respect, Prof. Arkes’s use of Chesterton’s metaphor is not quite fitting; for as long as I have been thinking about these issues, I have always known that I am very much in the vicinity of Prof. Arkes (the Brighton Pavilion) when it comes to the point that he wishes to illustrate with Chesterton’s metaphor (namely, the point regarding the inescapability of our reliance on moral principles – the natural law – when we make judgments about what is to be done in any situation).  But in another respect, Prof. Arkes’s use of the metaphor may be fitting, after all.  For the Brighton Pavilion, as majestic as it is, is often shrouded in fog and difficult to discern, even by those who know it and love it the best.  At times in his writing, Prof. Arkes makes use of locutions which would easily lead one to believe that, for Prof. Arkes, the relation between the natural law (on the one hand) and human/positive law (on the other hand) is a relation between one thing which serves as a standard/blueprint/model, and some other thing which is the thing to be measured up against that standard/blueprint/model.  Hence his frequent use of language suggesting that we need to move “beyond” the text or “outside” the text of the positive law or human law.  But Thomas Aquinas, for one, would have regarded this sort of language as misleading (at best), or perhaps even confused (at worst).  For Aquinas, the relation between (a) natural law and (b) human/positive law is not a relation between (1) one thing which is a standard/blueprint/model and (2) another thing which is measured up against that standard/blueprint/model; rather, it is a relation between (i) the way that the eternal law is in us simply insofar as our activity is the activity of rational creatures (ordered orderers) as such, and (ii) the way that the eternal law is in us insofar as our activity, more specifically, is the activity of making or instituting orderings which themselves count as law for other rational beings.  In other words, for Aquinas, the terms “natural law” and “human/positive” law do not refer to two different things, even though these terms do mean different things.  For Aquinas, the terms “natural law” and “positive/human law” have two different meanings, but only one referent (in much the same way that the phrase “that mammal over there” and the phrase “that dog over there” can have two different meanings, but only one referent).  Thus on Aquinas’s account, the relation between natural law and positive/human law is not a relation between one referent and some other referent that is separate from the first referent; rather, it is a relation between one thing (natural law) and a further specification (human law) which is a specification of the very same thing (natural law).  To Aquinas, the recommendation that jurists assess the positive law by moving “beyond” it to the natural law (as if “the natural law” as such were a supervening entity that could somehow exist apart from its being actualized or specified in some particular human positing or action), is about as sensible as the recommendation that veterinarians assess their canine patients by moving “beyond” the dog to the mammal (as if “the mammal” as such were a supervening entity that could somehow exist on its own, apart from its being actualized or specified in some particular species such as “dog”).  Rather than talking about the need to move “beyond” the text or “outside” the text of the positive law (rather than engaging in what can easily sound like dangerous “aggressive” natural law thinking), I suggest that one talk instead about apprehending the rational principles that are immanent in (that immanently animate and that find specification in) the positive law as such.  This Aristotelian-Thomistic approach, I believe, is one that can show us precisely how we might successfully avoid legal positivism (on the one hand) and aggressive natural law thinking (on the other hand).

Posted by Rick Garnett on August 31, 2011 at 02:19 PM in Garnett, Rick | Permalink | Comments (0) | TrackBack

Ad Contra

Thanks to Rob for his posting yesterday on Professor Laurence Tribe’s recent SCOTUSblog contribution entitled “The Constitutional inevitability of same-sex marriage.” The Tribe post is a withering critique of a method of legal reasoning that has been and remains crucial to law making—be it law making by the legislature or by the judiciary: the natural law. Of course, Professor Tribe is no friend of the natural law [HERE Download Tribe on Natural Law] and scorns its use. Yet, without the natural law, we would not have the Declaration of Independence and the fundamental law of this country, the Constitution of the United States of America.

Professor Tribe also makes passionate arguments for the “constitutional inevitability of same-sex marriage,” and some of them are based on polls, evolving consensus, and the transformation of culture. In this context, he asserts that arguments contrary to his on these points necessitate “the Court to cut this baby in half.” I wonder if he would employ this phrase in the arguments he has made in defense of abortion (for there, the baby—millions of them—has been and is plainly cut in half)? He also derides the use arguments against same-sex marriage that rely on what he labels “pseudo-scientific claims.” He does not identify the reasoning underlying these claims, but I wonder how he would consider this argument: Let us assume that two planets which have not yet been inhabited by humans are to be colonized by them; on Planet Alpha, heterosexual couples only are assigned; on Planet Beta, only homosexual couples. In one hundred years, will both islands be populated assuming that reproductive technologies are not available to either group? I suggest that Planet Alpha will be; but Planet Beta will not. Why? The basic answer is to be found in the biological complementarity of the heterosexual couple necessary for procreation that is absent in same-sex couple. This is a scientific argument, but perhaps it is, in Tribe’s estimation, counterfeit.

Professor Tribe’s legal justification for same-sex marriage is established on liberty and equality arguments. I have addressed those in an essay that will be published soon [I hope] by our friends at St. John’s University. The text of the argument is HERE Download St. John's Essay November 2010.

Professor Tribe is a highly regarded advocate and professor of law, and he is a formidable challenger. But I say that on his Constitutional arguments of liberty and equality, he is mistaken.


RJA sj

Posted by Robert John Araujo, SJ on August 31, 2011 at 11:39 AM in Araujo, Robert | Permalink | TrackBack

Of Amusement Parks and Head Scarves

This controversy hit extremely close to my home.  A fight broke out yesterday at Rye Playland Park when a number of Muslim women were told by park staff members that they would not be permitted to wear their head scarves on certain rides.  The park had received a number of Muslim visitors who were celebrating the end of Ramadan.  A scuffle broke out after the refusal to allow some of the women to ride without removing their hijabs, and there was also some kind of report that a park employee touched one of the women.

The park has a safety policy against the wearing of any "headgear."  I've been to Playland a number of times with my own family, and I've been required to take off my hat when I went on some of the faster rides. 

What makes this a possible constitutional question is that Playland Park is government owned and operated.  It is, in fact, the only such amusement park in the United States!  But I cannot see any way in which, should a law suit be brought against Westchester County, the plaintiffs would win.  This policy is clearly a law of general application, it is not targeted at any group, and it is overwhelmingly justified by serious safety concerns.  The rides to which the policy applies (and those that the Muslim customers report being barred from  riding) are extremely fast moving and jerky (I hate "Crazy Mouse" for this reason).  Any First Amendment claim would almost surely fail.  A sad episode nonetheless. 

(Picture of the wonderful 1929 "Dragon Coaster" at Rye Playland Park) (x-posted CLR Forum)

Posted by Marc DeGirolami on August 31, 2011 at 07:07 AM in DeGirolami, Marc | Permalink | Comments (5) | TrackBack

August 30, 2011

Who decides when "Roman Catholic" applies?

Get Religion offers a helpful thought experiment to capture how misguided some of the media coverage of "Roman Catholic" groups can be:

Let’s say that a bunch of retired journalists from the Los Angeles Times got together and, with a few converts who yearn for the good old journalism days in that great city, form a news organization that we will call, oh, the Society of St. Otis Chandler. This group rents itself some printing presses and, using a template of a vintage masthead of the Los Angeles Times in 1965 or so, start publishing a newspaper that they call — wait for it — the Los Angeles Times.

This makes some people confused, especially when the leaders of this new-old Los Angeles Times start making pronouncements that directly contradict those made by the leaders of the real Los Angeles Times.

Is everyone following this? Good. Hang on.

Now, the leaders of the actual Times clearly have the right — like it or not — to say who works for the real Times and who is aligned with this pretend Times. So how would these editors feel if major news operations kept writing stories about statements by the Society of St. Otis Chandler and calling its members Los Angeles Times journalists in good standing?

Now, unfortunately, there is one more complication. Suppose that some of these splinter Times people decide that the leadership of the Society of St. Otis Chandler have not gone far enough. Suppose that they start yet another group, one that claims that the leaders of the new-new Los Angeles Times are not only wrong on key issues, but that they are not even journalists in the first place.

Now, do you think mainstream journalists would go so far as to say that these people, the members of the splinter group that left the larger splinter Times, are, in fact, Los Angeles Times journalists?

Posted by Rob Vischer on August 30, 2011 at 12:37 PM in Vischer, Rob | Permalink | Comments (6) | TrackBack

Is a constitutional right to SSM inevitable?

Lawrence Tribe says yes:

The case for same-sex marriage follows directly from Lawrence’s potent recognition of the right to dignity and equal respect for all couples involved in intimate relationships, regardless of the sex of each individual’s chosen partner.  Sounding in the constitutional registers of due process and equal protection, Lawrence sought to secure a fundamental and yet fragile dignity interest whose boundaries necessarily extend far beyond the bedroom door.  Notwithstanding a few half-hearted qualifications that Justice Scalia quite rightly dismissed as inconsistent with its underlying reasoning and as trivial barriers to same-sex marriage rights, Lawrence is thus incompatible with state and federal laws that refuse two men or two women the full tangible and symbolic benefits of civil marriage.

He may be right, though I still think that there is potential ground on which courts can choose to distinguish between the liberty interest presented by intensely private conduct (Lawrence) and more "public" child-rearing relationships (marriage).  The "child-rearing" nature of marriage and the empirical basis for preferring the child-rearing facilitated by traditional marriage versus same-sex marriage present their own disputed questions, of course.

Posted by Rob Vischer on August 30, 2011 at 11:43 AM in Vischer, Rob | Permalink | Comments (40) | TrackBack

The Talking Cure

Jacques Lacan's famous discussion of Freudian psychoanalysis as a form of talking cure, in which the analyst is able to shape the meanings of the subject's hangups and mental infirmities, came to my mind during the recent exchange between Rick, Paul, Rob, and others (see below) on the issue of quizzing political candidates about how their religious beliefs will affect their decisions.  Yesterday, as my colleague Mark Movsesian notes, Ross Douthat had a column on the issue, with a number of interesting recommendations for journalists.

But I had a thought that may strike some here as perhaps a little heterodox.  I want to make a point in (partial, limited) defense of the Rortian "religion as conversation-stopper" view (which Rorty only really very partially revised after an elegant intervention by Jeffrey Stout a few years ago).

When candidate X makes a speech in which she claims that she is informed in her thinking about political issue Y by her religious beliefs and traditions, this is sometimes (not always, but often enough) not the sort of claim that can be understood thoroughly by the voting public through thorough public discussion, stimulated by extensive question and answer sessions devised by journalists otherwise hostile to the candidate's political position.  What is more likely to happen is that religion -- whether the candidate's or not -- will be used as a kind of instrument through which the journalist's political orientation can be reaffirmed and re-cemented.

Two points are often heard against this view, which I'll call Response One and Response Two.  Response One is that this is the candidate's own fault.  He, after all, is using religion in his speech for political advancement of one kind or another.  Why is it not then fair to use religion to knock him down -- to erase the political advantage that he has gained, and to strike political blows against him to boot?  The candidate did not have to mention religion; but now that he has, religion is "fair game."  Response Two is that engaging with the candidate's religious views takes religion and the candidate himself seriously -- it engages in discursive good faith with the candidate.  We do not say to the candidate, "You have improperly introduced a forbidden subject into the political exchange."  We say instead, 'We want to understand you, and since your religious tradition seems to be important enough to you that you raise it to explain, or ground, or at least situate your political position, we would like to probe your religious views by the medium of public discourse.  We'd like to understand your view, which you've informed us is religiously grounded, by talking through it to see if we find it persuasive.  Talking will help."

I want to examine the responses in turn.  Response One is motivated by an adversarially political aim, and it seems to me that it is a true reflection of the way in which political discourse is and always has been conducted.  That is because political discourse is, fundamentally (though of course not universally), shallow.  Political speeches are in the main occasions for scoring shallow points, using facile and accessibly appealing rhetoric.  They are occasions for giving people something easy to cheer.  The introduction of religion into a shallow speech does not make the speech profound; it only gives a shallow speech religious color.  Naturally, there have been beautiful political speeches that have used religious imagery or made religious references, and the beauty of those speeches has been enhanced by that imagery or those references.  But the introduction of a religious reference does not alter the generally shallow quality of political discourse.  

Since so much political speech-making is shallow, why should we expect that political commentators and talking heads who are deeply opposed to the political positions staked out by a particular candidate who makes a speech with a religious reference are interested in knowing in any depth about the candidate's religious views?  They are mostly, of course, interested in scoring correspondingly easy political points among their own readers, just as the candidate was interested in scoring easy points among his constituents.  Religion is an instrument through which each political partisan can make his or her hay more effectively; it is conscripted to be the handmaid of politics, and the politician or the journalist, like the psychotherapist, imprints the meaning that he wishes on the subject -- the listening public.  The appearance of religion -- pro or con -- is not likely to change this quality of political discourse.

That brings me to Response Two -- the view that when a candidate raises a religiously based argument, it will help our political discourse to talk through the candidate's religious ideas, because it will give us a better sense of what the candidate is all about.  As an initial matter, Response One seems to be somewhat incongruous with Response Two.  If we were really interested in understanding the candidate's religious tradition, in knowing precisely what role religion has played in the development of the views that the candidate is now expressing in her speech, we would recognize that it is extremely unlikely that people who are strongly opposed to the candidate's political views would be in a very good position to serve as interlocutors on this issue. 

But let's set that point aside.  Suppose we were dealing with a pure Response 2 kind of person, someone with no ideological or political axe to grind and who wished really to understand the religious underpinnings of a candidate's views.  Sometimes that sort of person can, with effort, illuminate something profound about the relationship of religion and politics.  When that happens, it is lovely to behold.  The difficulty, though, is that contemporary political discourse is exceptionally ill-suited to achieve the kind of engagement and understanding that the Response 2 person desires.  Response 2's model of political discourse is...academic discourse, whose beau ideal is a kind of Socratic dialogue in extenso, across years of deepening exchange.  And yet even in academic discourse, the dark byways and subterranean passages of a person's thought are exceptionally difficult to uncover in full.  Certainly, that kind of knowledge about someone else's religious views cannot be had by recourse to a series of simple and uninteresting questions cooked up in response to simple and uninteresting political rhetoric.  The essential triviality of ordinary political discourse -- the rapidity with which it is conducted, the lack of complication that is the leitmotiv of the political talking point, its stubbornly ephemeral nature -- cannot be remedied by the talking cure, whether we talk about religion or any other similarly consequential subject.

In fact, there may be a cost to embracing the talking cure too ardently -- the risk of mixing up Responses One and Two.  Most ordinary discourse about politics and religion, just like any other subject, is shallow, and this is as true for politicians as it is for journalists and the rest of us.  There is nothing wrong with that at all; shallowness gets us through the day -- thank God for it.  If I had to really think seriously about most of the things I read and hear, I would find myself paralyzed and probably incoherent (more than usual).  Yet what is problematic is to treat shallow discourse as something other than what it is because it claims the mantle of the talking cure -- because it says, "Oh, but I'm just hearing the other side out.  Audi alteram partem, after all, and respond in kind."  In the political arena, this is often not a tenable position, and rarely less tenable than when one is inquiring after a person's religious views.  What is more likely is that under cover of engaging in Response Two discourse, we will get more discourse partaking of Response One without declaring itself as such. 

This piece, from the Chicago Tribune and re-reported in the LA Times (it was just that appealing, apparently), is, I think, a nice example.  Titled, "A Few Catholics Still Insist Galileo Was Wrong," the piece reports on the views of some people who believe that the Earth is the center of the universe.  This position is associated by the author with Catholicism without much of an attempt to clarify what the official position of the Catholic Church today is on the subject.  Instead, the author notes coyly that a large gathering of these people was held close by the University of Notre Dame.  The whole piece is meant as a kind of lightweight ribbing of Catholicism.  It is shallow, just like so much that gets talked and written about today.  That's perfectly fine.  In fact, it is largely futile to think that the dominant mode of political and cultural discourse could look very different than this.  Insisting too much that modes of discourse which obtain in academia can be superimposed wholesale on, as Oakeshott had it, "the world of practice" can be deluding.  It can deceive us into believing that Response One is just a regrettable epiphenomenon of political discourse, to be remedied by the talking cure. 

Better, at least sometimes, to take religion as a conversation stopper; at least then, perhaps we'll have some blessed silence.

(X-posted CLR Forum)

Posted by Marc DeGirolami on August 30, 2011 at 12:49 AM in DeGirolami, Marc | Permalink | Comments (9) | TrackBack

August 28, 2011

Patrick Riley on Justice for Augustine and Leibniz

"The Art of Theory," A student-run political theory journal at Yale, publishes "Convienent, short" essays  (their ideal is Kant's "What is Enlightenment?" which is about 2500 words). In their current issue they have a brief piece by Patrick Riley on the ideal of justice as universal charity. Riley points out that this approach to thinking about justice has its roots in Christian neo-Platonism, but was eclipsed by Enlightenment thinkers, notably Hume and Kant.

Riley's focus is on Leibniz, drawing out the connections not only to Augustine, but to an important and enduring tradition of jurisprudence. He writes:

Leibniz did not write in vain when he insisted that the just person will be “wisely loving” and universally benevolent: in that he eloquently re-stated a tradition founded by Plato, Cicero, St. John, the young Augustine, and Dante and agreed with what is best in his Christian-Platonist contemporaries Pascal, Malebranche, and Fénelon. But he also looked forward: “[I]n the world of justice and love . . . . [l]et us never subordinate to a duty which is abstruse, remote and uncertain, an explicit and immediate duty to deal justly and to love mercy.” That is Marcel Proust, writing in 1900 in a language at once neo-Leibnizian and proto-Freudian.† The continuity between Plato and Proust, in making caritas and philia “wise” through sentiments de perfection and affection, places Leibniz on an infinitely graded continuum, which stretches spatially from Athens to Rome to Hannover to Proust’s Paris and to Freud’s Vienna, and temporally from the death of Socrates to the end-of-life triumph of Freud over cruelty and malevolentia.



Posted by Kevin P. Lee on August 28, 2011 at 07:22 AM | Permalink | Comments (1) | TrackBack

August 27, 2011

Michael New: Selective Reduction Reveals a Weakness in the Armor of Choice

At NRO the formidable Michael New comments on the reaction of pro-choice bloggers to the recent story in the New York Times discussing the case of women who conceive twins or other multiples through IVF and then opt to “selectively reduce” the pregnancy to a single developing child.  New’s remarks are here.  The Times story is here.  I previously posted on the Times piece here

As New observes, these otherwise adamant proponents of abortion – including the likes of Frances Kissling, William Saletan, as well as commentators at RH Reality Check and Jezebel – “expressed a considerable amount of unease with women who reduce their [multiple] pregnancies to singletons.”

While New does not deny that these expressions may be sincere on some level, he does suggest that they may be strategic.

I think that something different is at work here.  Supporters of legal abortion typically do not argue that they want abortion to be common or widespread.  They make the case that it should be a legal option for women facing unique or difficult circumstances.  They are also aware of polling data that shows that while majorities of Americans think abortion should be a legal option in cases of rape, serious health risks to the mother, or fetal deformity.  However, they are also aware that most Americans disapprove of abortion in cases of economic hardship or a desire to have fewer children.

Now, since abortions are done in private, the rationale for most abortions will remain unclear.  But women who choose to bear only singletons are seeking abortions out of convenience in a very visible way.  Pro-choice activists realize that if this practice is seen as commonplace, that could weaken support for legal abortion.

Given the sensitive subject matter, the New York Times did its best to put a nonjudgmental spin on this.  But the reaction of ardent pro-choice activists is very telling.

Put a bit more cynically, pro-choice advocates feign a kind of understated revulsion at the practice of “selective reduction” where the pregnancy is anything but unintended.  This is done, notwithstanding the logic of abortion, which provides no principled basis for such opposition, but so as to appear moderate and reasonable in order to preserve an unbounded right  to abort for any reason whatsoever.

The reaction of ardent pro-choice activists is, as Michael New says, “very telling” because, as with partial-birth abortion, “selective reduction” reveals a weakness in the armor of choice.  The revulsion that most people feel in response to the procedure is not feigned but genuine.  What those who value unborn human life must continue to do is ask the question: “Why?  Why do you feel this way?  Why do you recoil in horror at this particular choice?”  If the question is pressed, and one is honest with oneself, the person who began as troubled only by “selective reduction” may find him or herself questioning the entire abortion regime.

Posted by John Breen on August 27, 2011 at 06:27 PM | Permalink | Comments (8) | TrackBack