November 30, 2012
Richard Wilkins passes away at 59
The pro-life and pro-family causes suffered a great loss earlier this week with the untimely passing of BYU Law Professor Richard Wilkins. http://www.deseretnews.com/article/865567647/BYU-law-professor-well-known-Utah-stage-actor-Richard-Wilkins-passes-away-at-59.html He will be sorely missed.
Fred Gedicks responds to John Breen
John Breen, Professor of Law at Loyola University Chicago School of Law, recently criticized on the Mirror of Justice blog my ACS Issue Brief defending the Affordable Care Act’s contraception mandate, and several of his points require a response.
[For Fred's response to John, click here.
I have found my highest, best use: facilitating to-and-fros, such as this one between Fred and John.]
Gerson on Austerity and Morality
Here's a thoughtful column by Michael Gerson on what leaders must display in a time of austerity: a sense of proportion, the courage to take on large interests, and a sense of humanity. Wherever you think the balance should be, these orientations are right. And Gerson continues his compassionate-conservative defense of foreign aid against attacks like those by Sen. Rand Paul:
There are many substantive responses to Paul’s critique of aid. U.S. foreign policy would not be particularly American if a commitment to universal human dignity did not play some role. And acting according to that commitment has traditionally been an important element of U.S. influence — shaping our image and serving our interests.
But Paul’s crusade against aid is most notable as a failure of leadership. It lacks proportion, since the total of humanitarian assistance amounts to less than 1 percent of the federal budget — an expenditure irrelevant to the United States’ long-term, structural fiscal challenge.
November 29, 2012
I have a new paper on subsidiarity here. The paper is a chapter in what I believe will be the first English-language, book-length, comparative study of subsidiarity. My topic is subsidiarity in Catholic social doctrine, the place where the neologism "subsidiarium" originated. Subsidium, meaning help, is a Latin word in use since Roman times, but the new word subsidiarium denotes a plural social order that is derivative of social justice. Subsidiarity is the way the common good is to be achieved.
Talk of the common good "seem[s] unintelligible (even proto-fascist) to many contemporary Westerners" (John Rist, Real Ethics [Cambridge, 2002], 207), but subsidiarity, one of the basic principles of Catholic social doctrine, is about how the common good is to be achieved. Subsidiarity is not about smallness per se, devolution, or even "mediating" institutions that balance power or perhaps limit the state. It is about respecting the ontology of group persons: respecting associations, and helping them as necessary, as they refer their internal common goods to the overall common good.
Hamburger, John Stuart Mill on Liberty and Control
The historian of political ideas, Joseph Hamburger, who spent nearly all of his long and distinguished professional career in the Yale Department of Political Science, was an expert in 18th, but particularly 19th, century British intellectual history. My little essays on Sir James Fitzjames Stephen as well as some book-related research on Edmund Burke have brought with them the great good luck of an introduction to the writing of this immensely thoughtful and erudite scholar. Fairly recently, I picked up Professor Hamburger's book on John Stuart Mill: John Stuart Mill on Liberty and Control (1999).
The thesis of the book is that the strong and unqualified libertarian understanding of Mill -- the view that Mill was an unadulterated champion of freedom for its own sake -- is very much mistaken. Relying on the major works (the Logic, On Liberty, Utilitarianism, The Subjection of Women, etc.) as well as on many less well-known writings and letters, Hamburger argues that what interested Mill was liberty and control, and fairly substantial and intrusive types of state and social control at that:
[A]n explanation of Mill's overarching argument in On Liberty must explain the coexistence of these two apparently opposite positions. This is made necessary because the provisions for controls were not small exceptions to a general presumption that in most circumstances an expansive liberty ought to prevail . . . . [T]he range of cases in which [Mill] would punish, his approval of punishments for mere dispositions toward conduct that would injure others, and above all, his explanation of his purposes to [his friend] George Grote indicate that his rationale for liberty in combination with control requires a different explanation. It is also necessary to explain how, for Mill, the provisions for both control and liberty were not contradictory, but in fact were compatible means of implementing a coherent plan of moral reform. (18-19)
Professor Hamburger proceeds in the following chapter to discuss the movement of Mill away from an interest in institutional reform (something which always greatly interested Bentham) toward a more ambitious plan for cultural and moral reform (in tandem with and inspired by his wife, Harriet). He then spends several very interesting chapters discussing Mill's aim to vanquish Christianity as the de facto social morality and replace it with a "religion of humanity" -- the new moral system which would strike the balance between liberty and control properly:
The real task of religion was to direct emotions and desires away from low objects and to be "paramount over all selfish objects of desire." Moreover, it ought to make us disinterested: "It carries the thoughts and feelings out of self, and fixes them on an unselfish object, loved and pursued as an end for its own sake." Christianity, however, in Mill's view, did anything but this:
The religions which deal in promises and threats regarding a future life, do exactly the contrary: they fasten down the thoughts to the person's own posthumous interests; they tempt him to regard the performance of his duties to others mainly as a means to his personal salvation; and are one of the most serious obstacles to the great purpose of moral culture, the strengthening of the unselfish and the weakening of the selfish element in our nature. (43, quoting "Utility of Religion")
In this way, Hamburger argues, the real target of Mill's moral reforms was Christianity -- or, perhaps better, the institutions and customs of moral beliefs on which it depended and with which it was allied (see, e.g., Mill's critique of "intuitionism" in the Logic). This attack did not stand alone; and it certainly did not imply an embrace of freedom full stop (though of course it did imply a certain understanding of liberty). Rather, it was closely coupled with Mill's vision for a new social and moral order, and Mill believed that the times were ripe for this substitutionary program. The better faith to follow was the religion of humanity, which Mill discovered in the writing of Auguste Comte. And here Hamburger points out an interesting feature of Mill's views about the circumstances in which it is advisable to obey authority -- circumstances which depend on the distinction between a "natural" and a "transitional" society:
In natural states of society there is unity, harmony, stability, and, [Mill] implies, contentedness, whereas in transitional states there is disagreement, conflict, discontent, and a restless desire for change. The shift to a transitional state occurs when there is a disintegration of the institutions at the end of a natural period and arises from doubts about its legitimizing beliefs. Thus a transitional era occurs when mankind "have outgrown old institutions and old doctrines, and have not yet acquired new ones." . . . .
While the superiority of the natural or organic state of society arose from its harmony and stability, it was also appealing for the role it gave to intellectuals -- those responsible for originating and disseminating opinions and beliefs. There would be "a body of moral authority" which would rest with those possessing the greatest knowledge and competence. The opinions originating with such persons would be widely accepted . . . .
Such deference to the authority of superior persons was made necessary by the practical obstacles faced by most persons seeking knowledge required for sound judgment . . . . During a transitional period when there was disagreement among those claiming authoritative knowledge, it was understandable that an individual would rely on private judgment. But it was preferable, if the best educated and most competent were in agreement, for most persons to defer to authority, even in moral and political matters . . . . To believe received opinion (or, as he also called it, received doctrine) during a transitional era, when it might have originated in an earlier but now discredited natural era and when those claiming moral authority were in sharp disagreement, was, of course, unwarranted. But when the authorities were competent and united, as they were (Mill believed) in physical science, and as the Catholic clergy were in the middle ages, and as they would be in a future organic state of society, it was reasonable to be guided by it. (109-10, citing "The Spirit of the Age")
I am certainly far from an expert on Mill, but the book is, I think, interesting and usefully complicating in light of the uses to which Mill is sometimes put in legal theory, constitutional law, and legal academic discussion generally.
A last note -- a point of personal privilege. Professor Hamburger is none other than the father of my friend and mentor, Philip Hamburger. A distinguished academic family indeed.
Deneen responds to Munoz on "our Founding liberal principles"
What Muñoz neglects is that the liberal invocation of individual rights, voluntarism, and self-ownership—while useful as an appeal against practices such as slavery—unavoidably also undergirds the tendencies and practices that are at the heart of my critique, namely the tendency toward the expansion of voluntarism into all spheres of life and the effort to conquer nature so as to satisfy all human appetites and intentions that arise from an unconstrained human will. It should also be pointed out that liberalism invites the pro-choice conclusion, inasmuch as its basic understanding of the human person as “self-owner” leads to the conclusion that a fetus can be regarded as an intrusive “other” that impinges upon a woman’s sovereign self. . .
November 28, 2012
What is Marriage? (the book)
Sherif Girgis, Ryan Anderson, and I recently had an op ed piece in the Wall Street Journal defendng the idea of marriage as a conjugal union. Here's a link:
The piece is a kind of precis of our new book What is Marriage? Man and Woman: A Defense (Encounter Books). The book develops and strengthens the argument we originally advanced in our article "What is Marriage?" in the 2010 volume of the Harvard Journal of Law and Public Policy. The book has a website here: http://whatismarriagebook.com/.
Law and Practices, and Why Have Children?
Following on earlier posts about the Duke Law and Contemporary Problems symposium on Stanley Hauerwas and law, the issue also includes a colloquy between Stanley and his former student Jeff Powell, then at DOJ's Office of Legal Counsel and now back on the Duke faculty. Among the many interesting observations, here are two bits. First, Stanley on the relation between law and moral practices, with some important implications, I think, for how law is taught in a Catholic university:
Now I thought at the time that lawyers resisted the charge that the law reflects politics or morality as a way to save what they were learning as skills of the law that gave them a sense of identity in a world in which moral identity was very ambiguous. They believed, “The law has an integrity that the rest of my life does not, and I’ll be damned to let it be ruined by recognizing that it reflects a community’s politics or morality.” So the law becomes an end in itself. That will kill you.
So fundamentally, if you are to be able to live out the life of the law you are going to need a more determinative community than the law, and that I worry is very hard to find. One of the temptations will always be to think that you can replace that community with theory. Theory is always a useful, imaginative exercise, but it’s not going to be sufficient unless you have a much more determinative set of practices that surrounds the law.
Second, in the Q&A, Charlton Copeland (Miami) asked the following question about liberalism (in the political theoretical, not politically partisan, sense), with Stanley's response below:
CHARLTON COPELAND: How might we avoid the shame that can result from being dependent upon the liberal state? If one were to read at least some of your work, there might be the sense of sadness for those whose lives or safety depend upon the liberal state in some important respects. How do we struggle though the sadness and not somehow let it become shame for those who depend upon the liberal state?
HAUERWAS: My problem has never been liberals. My problem has been Christians who are liberals and who don’t know it. I expect liberals to be liberals, and I’m deeply grateful for many of the kinds of developments that Stephen Macedo names. It’s good that we live in a social order where at least you have some legal recourse if you are arbitrarily arrested. The world as I found it is pretty damn good. But I need to name, as part of my service to it, what I take to be some of the profound challenges to our being able to live well together as human beings within the liberal rhetoric of our time.
Take abortion, for example. The real question is whether we as a people are confident enough in our lives to want to pass life on to future generations. Do we have such goods that compel our own lives that we think it sufficient to bring new life into the world, to say we want you to enjoy what we enjoyed? When I used to teach at Notre Dame, they had a course on marriage and family. Parents wanted the course in the curriculum to ensure that their kids would not do what the parents were afraid their kids were going to do when they went to college, but what they had already done in high school. I usually started the course with a question: What reason would you give for yourself or someone else to have a child? Students would answer that children are the manifestation of our love. Or that children are a hedge against loneliness. Or that we have children to please the grandparents. It’s amazing how inarticulate we as people are about what it means to have children, which I think can be a very basic moral presumption for any social order. And I think Christians can have something to say about that, and that would be of service within a liberal social order. If you think you are having children for your own happiness, good luck.
Deneen and Munoz on American liberalism
My friend, neighbor, and colleague, Patrick Deneen, recently wrote a thoughtful essay in First Things (subscription required) called "Unsustainable Liberalism," the thesis of which is that "liberalism's contradictions are unsustainable and we must see man and nature anew." Another friend, neighbor, and colleage -- Phillip Munoz -- has an also-thoughtful response, here, at Public Discourse: "Why Social Conservatives Should Be Patriotic Americans: A Critique of Patrick Deneen." Munoz concludes:
Check out both . . .
Catholic University Law School Dean
As Michael previously mentioned, on Tuesday the Columbus School of Law at the Catholic University of America, made an important announcement:
After an 18-month-long national search, The Catholic University of America has named Daniel F. Attridge of the Washington, D.C., office of Kirkland & Ellis LLP as dean of the Columbus School of Law. The managing partner of Kirkland's Washington, D.C., office since 1998 and a partner in the firm since 1985…
As we all know, this is a critical point in time for legal education. Such an appointment, in my view, is an excellent one for Catholic University for the objective reasons mentioned both in the announcement and the news coverage. It is also exciting for the more intangible reasons important to a law school that is interested both in academic excellence, as well as mission.
At various times here at MOJ we have discussed, and no doubt will continue to do so, the meaning, purpose, and value of an authentically Catholic law school. Within that context, there is some agreement that a law school in the Catholic intellectual tradition is one which reflects the highest academic and professional standards, as well as a commitment to something more profound. In the words of Judge Noonan in his 1992 Essay, A Catholic Law School, it "encourage[es] such a fusion of the responsibilities of the lawyer and the love of Christ."
In my view, the selection of Mr. Attridge reflects that wonderful combination that separates the Catholic law school from the secular institution. Not only does he have a record of significant distinction in the profession, as objectively indicated in the building of Kirkland into a firm with a global reputation for excellence. He also brings a commitment to certain "core values" of education and faith. Thus, he demonstrates that such achievements – such "responsibilities of the lawyer," need not be separate from the commitment to something greater. For, again in the words of Judge Noonan, "a Catholic law school . . . must indeed be aware of its roots in faith if it is to be aware of its own vocation."