Saturday, August 25, 2012
Over the past couple of weeks since I posted my last contribution on The Examination of Conscience and the Examen, a number of my friends here at the Mirror of Justice have commented on various dimensions of the educational and other institutions with which we are associated. A common question that these comments raise emerges from the issue of what it means to be Catholic or to have a Catholic nature. I shall address a simpler matter today that has some bearing on this question which we tackle here quite often, namely, Catholic legal theory: what is it and how do we teach it? Or, what is it all about? But first I must note something about the challenges of the present age that interfere with the projects that bear the moniker “Catholic.”
As some of my friends here at the Mirror of Justice have recently noted, both the Church and law schools face great pressures today. Albeit of different origins, these pressures are nonetheless manifested in strains and tensions that interfere with the projects of Christian discipleship that include teaching law in the classroom and in submitting publications which somehow reflect this same discipleship. In the context of the academic enterprise of teaching law that is in accord with Catholic teachings and Christian principles, we also face the problems of those whom we instruct. One major problem is the increasing expenses our students face in pursuing their legal education; another concern confronting the schools with which we are associated is the declining interest amongst the eligible population of becoming a lawyer, which leads to the increased competition amongst law schools to demonstrate while the declining number of applicants should attend a particular institution rather than some other school. The forecasts about the declining student populations indicate that this downtrend is not cyclical but permanent.
But rather than focus on declining student populations and increasing costs (both of which are of vital concern to educators and their students), I would suggest that another challenge to the Catholic law professor is how to serve as a catalyst for those students whom we do encounter to be models and practitioners of virtuous persons who have a solid sense of what the law is about and what it is not about. While not as dramatic an issue as whether we will have students to teach and what we are asking them to pay, it is still a central issue that ought not to be avoided. What is the basis of my assertion?
Within the Catholic contribution to the development of legal institutions, the natural moral law and the development of the virtuous lawyer have always played a central role. Yet these topics are typically absent from legal education today and discussions or debates about what legal education should be about and include. If one doubts my contention, you need only attend a faculty meeting that addresses the crises that law schools are presently facing and take stock of the solutions that are being proposed and determine for yourself if virtue and the natural moral law are discussed by colleagues.
Again, I don’t have any profound insights to offer that are novel or innovative about this. What I do propose for consideration as these weighty matters are encountered is a rather simple set of thoughts that should intersect the daily life and prayer of any Catholic or Christian. These thoughts might be considered in the context of simple questions asked if not throughout the day then at least throughout the week. The first is: what is it all about? Well, for the Catholic and I think most Christians, it is about salvation and preparing for union with God. I realize that the Catholic and Christian law professor cannot specifically include this precise formulation in his or her work of teaching or lecturing or publishing, but on the other hand, our work does not automatically preclude the asking of this question “what is it all about” as we prepare our classes and draft our lectures, articles, essays, and books. While this is not an especially innovative thought as I have said, it is important and relevant to the work of the Christian law professor who is preparing people to enter a noble profession and to be citizens of the two cities that each person will inhabit—the cities of God and of Man.
While he was not a particularly religious individual, Dr. Ben Franklin purportedly said something that is beneficial to the point of this entry I am posting today. At the conclusion of the Constitutional Convention in 1787, Franklin was asked by a Mrs. Powel whether the Framers had given the people of the United States a republic or a monarch. As Max Farrand’s collection of the Records of the Federal Convention memorializes Franklin’s response, Farrand reported in this manner: “A republic replied the Doctor if you can keep it.” When we are asked by colleagues, prospective students, or, for that matter, anyone else who might inquire “what have we given to society and to education,” might we reply by saying that it has something to do with our discipleship and presenting the Church’s wisdom on the meaning of human existence? And quickly following this is another matter: can we keep this understanding of human nature and human enterprise alive not just for the present moment but for posterity? It will take effort, but effort is always a close companion of discipleship.
Friday, August 24, 2012
Do Rawlsian principles of "political liberalism" demand the legal recognition of same-sex romantic partnerhips as marriages? I suspect that many of Rawls's conservative critics, as well as his liberal supporters, would suppose that the answer must be yes. (For the conservative critics, that would be one more count against Rawls's general theory of justice and political morality.) But now comes my former student, Matthew O'Brien, who in a brilliant article just out in the British Journal of American Legal Studies argues that the answer is actually no. In fact, he maintains that Rawlsian principles, rigorously and consistently applied, forbid the re-definition of civil marriage to include same-sex partnerships. The article, entitled "Why Liberal Neutrality Prohibits Same-Sex Marriage: Rawls, Political Liberalism, and the Family," is available on line here: http://villanova.academia.edu/MatthewOBrien/Papers/1536325/Why_Liberal_Neutrality_Prohibits_Same-Sex_Marriage_Rawls_Political_Liberalism_and_the_Family
Thursday, August 23, 2012
In the vein of "the moral state of campus culture" ... Troy University, a state institution in Alabama, announces:
Construction of a new 376-bed residence hall at Troy University is under way, adding much-needed student housing, with a values-oriented twist.
In collaboration with St. Martin of Tours Catholic Church in Troy and the Archdiocese of Mobile, the residence hall will feature a Newman Center, a Catholic ministry center found on secular university campuses throughout the world and on more than 270 campuses in the United States. . . .
While housing in the residence hall will be open to all University students, Catholic students, as well as students of faith, may take part in Newman Center activities and attend events in a 2,300 square-foot chapel that will be the centerpiece of the development.
I'm sympathetic to the idea of creating such a space as a concrete (!) instantiation of faith-based values as an option for students. I hope everyone concerned is taking the necessary steps to structure the arrangement to avoid any serious Establishment Clause challenges. The university's news release says: "Troy University Foundation is building the facility, with financing provided by Troy Bank and Trust. Once constructed, trustees approved a measure that allows the University to lease the facility from the Foundation, a private entity, for its management and maintenance." I can't tell for sure from the release whether (1) the chapel is a Catholic chapel, or the sort of general chapel found at many public universities, and (2) to what extent the "management and maintenance" by the university (I think the release says it's by the university) extends to the Newman Center and/or the chapel.
Nathan Harden's new book "Sex and God at Yale" will be of interest to anyone who is concerned about the moral state of campus culture at colleges and universities in the US. Here's my dust jacket endorsement:
“The ideology of sexual liberation that is the lasting legacy of ‘Me generation’ liberalism and its imbecilic doctrine of ‘if it feels good do it,’ has hardened into an orthodoxy on college campuses around the country. Not only is it uncritically embraced by many students, it is supported by a great many faculty members and abetted and even promoted in a variety of ways by academic administrators. In the spirit of the late William F. Buckley, Nathan Harden takes a hard, critical look at the prevalent sexual liberationist dogmas at Yale, exploring their damaging effects on the educational enterprise and their often tragic consequences in the lives of students.” — Robert P. George, McCormick Professor of Jurisprudence, Princeton University
Nathan Harden is a recent Yale graduate. His critique of the practices and policies of that university would apply with equal force to many other institutions, including major Catholic ones. Can anything be done about the situation, or are decency and honor in sexual matters a lost cause for our young people? Keep hope alive! Get to know---and support---the Love and Fidelity Network: http://www.loveandfidelity.org/
Wednesday, August 22, 2012
Prompted by an inquiry from Rick, I took a look again at Jeffrie Murphy's wonderful book, Getting Even: Forgiveness and Its Limits (2003), about which I've written a little before. Chapter Nine, entitled "Christianity and Criminal Punishment," contains the following interesting passage about the relationship of Christianity and retribution. But I think it also says something useful about rehabilitation.
But what about retribution? Is it a legitimate objective on a Christian view of punishment? . . . . This depends, I think, on just what one means by "retribution." In the philosophical literature on punishment, retributive punishment is usually understood as giving the criminal what he, in justice, deserves. There are, however, at least six different accounts of what might be meant by "desert" and thus at least six different versions of retributivism: desert as legal guilt; desert as involving mens rea (e.g., intention, knowledge); desert as involving responsibility (capacity to conform one's conduct to the rules); desert as a debt owed to annul wrongful gains from unfair free riding (a view developed by Herbert Morris); desert as what the wrongdoer owes to vindicate the social worth of the victim (a view developed by Jean Hampton); and, finally, desert as involving ultimate character -- evil or wickedness in some deep sense (a view that Kant calls "inner viciousness") . . . .
It seems to me that there is no inconsistency between the essentials of Christianity and the first five forms of retribution noted. With respect to the sixth, however -- what I will call "deep character retributivism" -- there does seem to me to be an inconsistency . . . . I have earlier argued that judging the very soul of another human being and attempting to decide his ultimate desert is beyond the scope of human ability and must be viewed as a task either to be left undone or reserved for God. Human beings simply do not know enough to make such judgments with accuracy. In addition, human beings are simply not good enough to make such judgments without hypocrisy . . . . [T]his problem grows in seriousness the greater the depth of inquiry into the inner life -- for example, I suspect that judgments of intention (and other mens rea judgments) are more reliable and safer than judgments of inner viciousness, judgments that a person is hopelessly rotten to the core. They are safer because they do not to the same degree tempt us to cruelty and to dismissing the very human worth of the wrongdoer.
The passage is a very nice reflection on a species of "deep" retributivism that Murphy finds problematic for Christianity, but it seems to me that the nature of the critique might also pose similar challenges to a "deep" species of rehabilitation. One of the underappreciated qualities that unites retributivism and rehabilitation (again, on certain accounts of each of these functions of punishment) is confidence in the state's capacity to conduct fairly thoroughgoing characterological inquiries, and then to act on those inquiries accordingly. This is not a quality shared by deterrence, general or specific, which depends much less (if at all) on deep character inquiry. The reasons for action in response to the inquiries differ, of course, but retribution and rehabilitation both depend to some extent on that basic sort of inquiry into human character -- the one in order to mete out (ultimate) justice, the other to bring about (ultimate) transformation. But if we do not know enough and are not good enough to pursue these "deep" inquiries for retributivist ends, then it seems to me that we should likewise be skeptical about our parallel capacities to pursue rehabilitative ends.
Barron's piece concludes with this:
In his wonderful Orthodoxy, written over a hundred years ago but still remarkably relevant today, G.K. Chesterton said that Catholicism is marked through and through by the great both/and principle. Jesus is both divine and human. He is not one or the other; nor is he some bland mixture of the two; rather, he is emphatically one and emphatically the other. In a similar way, the Church is radically devoted to this world and radically devoted to the world to come. In the celibacy of its priests, it is totally against having children, and in the fruitful marriage of its lay people, it is totally for having children.
In its social teaching, this same sort of "bi-polar extremism" is on display. Solidarity? The Church is all for it. Subsidiarity? The Church couldn't be more enthusiastic about it. Not one or the other, nor some bland compromise between the two, but both, advocated with equal vigor. I think it would be wise for everyone to keep this peculiarly Catholic balance in mind as the debate over Paul Ryan's policies unfolds.
And, Movsesian's with this:
Christianity always asks the believer to accept seemingly incompatible assertions: Christ is at once God and Man; the world is at once good and evil; the Christian must at once care for the world and focus on eternity. For non-Christians, these are nonsensical pairings; but for Christians, they help define the mystery of faith. If there is to be a Catholic — or, more broadly, Christian –social theory, it must somehow endorse community and individuality, in Barron’s words, “with equal vigor.” It must embrace the paradox that Christians are called to be in the world but not of it — an undoable something that somehow must be done.
It looks like the Democratic Party's leadership has decided to make the Party's fierce commitment to protecting abortion against meaningful legal restrictions of any kind and extending its availablility a, if not the, central theme of its national convention:
I'll leave to the pundits the question whether this is good politics. (I suppose it's one way to avoid focusing on the state of the economy.) It is, however, a great sadness from the point of view of faithful Catholics and others who believe in the inherent and equal dignty and right to life of every member of the human family--from the child in the womb, to the mentally or physically handicapped individual, to the frail elderly person nearing death. The Democratic Party could once boast that it was the party that "looked out for the little guy." No more. That will be clear when speaker after speaker at the podium proclaims abortion as a sacred right and virulently condemns those of us who stand up and speak out in defense of abortion's tiny victims. I have pity for the dwindling band of pro-life Democrats who will sit in front of their television sets, or in the conventional hall itself, listening to the roars of approval as the presidents of Planned Parenthood and NARAL Pro-Choice America, among many others, deliver their carefully crafted applause lines.
The spectacle will, of course, reflect the position and strategy of the Obama-Biden ticket, and reinforce for those of us who are pro-life the points I made in 2008 in "Obama's Abortion Extremism" http://www.thepublicdiscourse.com/2008/10/133 and (with Yuval Levin) "Obama and Infanticide" http://www.thepublicdiscourse.com/2008/10/282.
Tuesday, August 21, 2012
The entire Catholic community---in Germany and throughout the world---must stand with Rabbi Goldberg and speak out against his prosecution for performing circumcisions of male infants in compliance with their parents' wishes and Jewish law. The threats to religious liberties and to religious people whose beliefs and practices are regarded as intolerable by those who preach the supreme importance of tolerance know no borders.
MOJ-friend John Inazu (Washington U.) has a piece at USA Today about why the fight over the HHS mandate isn't merely a "Catholic thing" here. When you're finished with that, go over to the First Things site and read Mike McConnell's review of Inazu's book on freedom of assembly. Here's the conclusion to McConnell's review:
The title Liberty’s Refuge: The Forgotten Freedom of Assembly is therefore sad but all too true: Freedom of assembly has been forgotten. And unfortunately Inazu is right about another thing as well: It matters. America has long been distinguished by a vibrant and independent civil society, one possible only when voluntary associations can meet freely in public spaces and public institutions and when they can limit their membership and leadership to persons who share their beliefs. This means that groups will exist that we like and groups will exist that we do not like.
Under the Court’s current weak doctrine, governments can effectively pick and choose which groups are permitted to use public property, using pretexts like the “all-comers” rule or the policy against “worship.” The framers of the First Amendment thought they had guaranteed all associations the right to meet, with the sole limitation that they behave peaceably. That freedom has slipped away.