Mirror of Justice

The Status and Value of Stare Decisis

 

 

 

With the nomination hearings of Judge Sonia Sotomayor to fill the vacancy on the United States Supreme Court underway, it is inevitable that the issue of stare decisis will eventually be addressed. Judge Sotomayor has anticipated the inevitability by raising in her introductory remarks the primary duty of a judge to fidelity to the law. That is a wonderful expression—fidelity to the law. But what does it mean? I have thought about this critical matter that must be of interest to Catholic legal theorists over the past few days. In order to clarify my own thinking about fidelity and the role of stare decisis, I have come up with a hypothetical line of questions to a judicial nominee and some possible answers.

 

Senator X:

Judge, we all recognize that fidelity to the law must respect the principle of stare decisis, but from your perspective do they mandate strict adherence to past decisions of the Supreme Court of the United States?

 

Judicial Candidate:

Clearly, Senator, fidelity to the law and respect for the principle of stare decisis are and must remain vital elements of the role law must have in our juridical institutions and the rule of law in our society. They ought not to be tampered with in most circumstances without good reason for doing so.

 

Senator X:

Yes, Judge, but does a judge who possesses the jurisdictional competence to do so have any latitude for altering the impact of judicial precedents? Isn’t there a very strong presumption that precedents are valid and must not be tampered with under the doctrine of stare decisis?

 

Judicial Candidate:

Senator, you ask a most probing set of questions. I shall do my best to respond to each. But let me begin by stating that a federal judge is a member of a coordinate and equal branch of the national government. While a judge’s principal responsibilities differ from those of the Congress or the Executive branch, a judge also shares in the duty to uphold the Constitution of the

United States

. This means there must be respect for the law and its rule. However, this does not preclude a member of the judiciary or a court consisting of several judges to refrain from examining the strength and integrity of the judicial precedents that apply to the case under consideration. A judge must always look at them with an eye that is attuned to the role of reason and the role of facts in establishing, maintaining, or modifying any precedent. A judge must test the principles that are or appear to be applicable to the case in a fashion that places significance on the essential facts and the reasons for applying a legal principle to those facts. A judge must ask: does the principle, the precedent still achieve the objectives for which it was intended to accomplish and what is the legitimacy of such objective?

 

In short, our legal system is premised upon reason. Reason and its objectivity formulate the legal principles that come together to form the fabric of the law and the need for fidelity to it. But this does not mean that fidelity to the law and stare decisis preclude changes in the law. The legal system we enjoy in this country has evolved since its inception, and the fact of evolution of the law more than suggests the role of change consistent with fidelity and the coherence that is at the core of the rule of law.

 

Otherwise, Senator, we would not have the ability to ensure that the law is premised on the soundest reasoning that properly acknowledges the role of facts that emerge in the cases that come before judges. The law is established for the long-term. It is or should be laden with objectivity and moral purpose. It should not be compromised by whim or caprice. It must serve both the individual and the society well being tempered with firmness, mercy, and truth about the human condition. It cannot be merely the will of the law maker, the judge, or some constituency that will profit from a particular result without consideration given to the impact that the law and its interpretation will have on all whose lives and welfare are affected.

 

Senator X:

So,Judge, are you saying that a judicial officer is at liberty to depart from precendent?

 

Judicial Candidate:

For sound reasons as I have defined and explained tested by fact, yes.

 

Senator X:

Then, Judge, you’d be willing to see the “legal fabric” as you call it be altered!

 

Judicial Candidate:

Yes, for good reasons that serve well one and all tested by fact.

 

Senator X:

By what authority can you do such a thing?

 

Judicial Candidate:

By the Constitution of the United States and the oath of office we share as officials appointed or elected to uphold it.

 

Senator X:

But, Judge, from what you are saying then, is there not a threat to fidelity of which you spoke and the overwhelming significance of judicial precedent?

 

Judicial Candidate:

Senator, with the greatest respect to our Constitution and the need to preserve, protect, and defend it, we must all recognize that unwise or unsound law can be made by judges and legislators. This is why our system allows for Congressional override of judicial decisions, and it also enables judicial review of Congressional and legislative actions. The common denominator underlying each of these actions is a Constitutional empowerment based not on whim or caprice but on sound reasoning. Otherwise, Senator, we’d still be a land of law in which precedents such as Dred Scott and Plessy and rationales such as Korematsu still prevail.

 

 

Any thoughts?

 

RJA sj

 

A follow-up to Michael

 

 

Thanks to Michael Perry who has brought our attention to The New York Times article posted this afternoon regarding President Obama’s stirring speech given to the Ghanian Parliament. As Michael’s reference to the speech itself and to The New York Times article about it point out, the President noted that responsibility for the plight of Africa and its salvation does not rest with particular forces solely outside of Africa or inside.

 

Earlier today our President stated that,

Now, it's easy to point fingers and to pin the blame of these problems on others. Yes, a colonial map that made little sense helped to breed conflict. The West has often approached Africa as a patron or a source of resources rather than a partner. But the West is not responsible for the destruction of the Zimbabwean economy over the last decade, or wars in which children are enlisted as combatants. In my father's life, it was partly tribalism and patronage and nepotism in an independent Kenya that for a long stretch derailed his career, and we know that this kind of corruption is still a daily fact of life for far too many.

 

It may well be that the President has been listening to and taking stock of what the Pope, the Holy See, and those who represent it have been proposing for some time. For example, in 2007, the Holy See, through its Permanent Observer to the United Nations, offered parallel thoughts to those issued by the President today. In particular, Archbishop Celestino Migliore stated behalf of the Holy See and Pope Benedict that,

The international community is called to assist African countries develop policies that promote a culture of solidarity, so that their economic development may go hand in hand with integral human development. On the other hand, good governance and institution-building efforts, correct use of aid and anti-corruption measures are primary responsibilities of the recipient countries and are essential if international aid is to bear fruit.

 

I am certain we all share Michael’s pride in and endorsement of the President’s stirring remarks presented today in Ghana. But let us also acknowledge that some of his efforts to achieve good in the world, especially in those places most in need of it, have been preceded by those of others including the Roman Catholic Church and her exhortations over the years that have brought attention to the plight and promise of Africa. As we applaud the President, so, too, must we applaud those who have gone before in efforts to achieve the same noble goals for the betterment of humanity.

 

RJA sj

One woman and judge’s view

 

 

 

This coming Sunday’s The New York Times Magazine will publish an interview with Justice Ruth Bader Ginsburg entitled The Place of Women on the Court. [HERE] In part, it offers her exhortation encouraging the confirmation to the Supreme Court of Judge Sonia Sotomayor. In part, it is a revealing insight into the kind of woman, person, and human being that are Ruth Bader Ginsburg.

 

Inevitably, questions about abortion and the law and Constitutional issues dealing with this issue surfaced during the interview. The following exchange between Justice Ginsburg and the interviewer divulges a great deal about the kind of woman, person, and human being that Ruth Bader Ginsburg is:

 

Q: If you were a lawyer again, what would you want to accomplish as a future feminist legal agenda?

 

JUSTICE GINSBURG: Reproductive choice has to be straightened out. There will never be a woman of means without choice anymore. That just seems to me so obvious. The states that had changed their abortion laws before Roe [to make abortion legal] are not going to change back. So we have a policy that affects only poor women, and it can never be otherwise, and I don’t know why this hasn’t been said more often.

 

Q: Are you talking about the distances women have to travel because in parts of the country, abortion is essentially unavailable, because there are so few doctors and clinics that do the procedure? And also, the lack of Medicaid for abortions for poor women?

 

JUSTICE GINSBURG: Yes, the ruling about that surprised me. [Harris v. McRae — in 1980 the court upheld the Hyde Amendment, which forbids the use of Medicaid for abortions.] Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion. Which some people felt would risk coercing women into having abortions when they didn’t really want them. But when the court decided McRae, the case came out the other way. And then I realized that my perception of it had been altogether wrong.

 

Q: When you say that reproductive rights need to be straightened out, what do you mean?

JUSTICE GINSBURG: The basic thing is that the government has no business making that choice for a woman.

 

Q: Does that mean getting rid of the test the court imposed, in which it allows states to impose restrictions on abortion — like a waiting period — that are not deemed an “undue burden” to a woman’s reproductive freedom?

 

JUSTICE GINSBURG: I’m not a big fan of these tests. I think the court uses them as a label that accommodates the result it wants to reach. It will be, it should be, that this is a woman’s decision. It’s entirely appropriate to say it has to be an informed decision, but that doesn’t mean you can keep a woman overnight who has traveled a great distance to get to the clinic, so that she has to go to some motel and think it over for 24 hours or 48 hours.

 

I still think, although I was much too optimistic in the early days, that the possibility of stopping a pregnancy very early is significant. The morning-after pill will become more accessible and easier to take. So I think the side that wants to take the choice away from women and give it to the state, they’re fighting a losing battle. Time is on the side of change…

 

I have emphasized two portions of the Justice’s response to different questions about abortion. Her two answers, in one sense, do not seem to be consistent with one another. On the one hand, she viewed Roe as the means of controlling population, “particularly growth in populations that we don’t want to have too many of.” I wonder what are those populations “that we don’t want to have too many of”? On the other hand, she asserts that the government has no role in making decisions about a woman’s “reproductive rights.” But, if she means that the state has no role in stopping a woman from having an abortion for any reason or no reason, then the two statements become more coherent with each other. In any case, she did not retract her views about population control and using government moneys to fund abortion—for that would not take away women’s “reproductive rights.” It seems that from her perspective, “reproductive rights” and population control may not be in conflict with one another. And, if this is indeed the case, we have learned a great deal about what kind of woman, person, and human being Ruth Bader Ginsburg is.

 

RJA sj

Caritas in Veritate

 

 

Thanks to Michael S. for posting the Pope’s new encyclical Caritas in Vertate, which was released earlier today in Rome. The first thing worth noting about it is this encyclical is addressed to all the faithful, the People of God, and all men and women of good will. In contrast, Deus Caritas Est, his first encyclical, was addressed only to the members of the Church—clerical, religious, and lay faithful. And his second encyclical, Spe Salvi, was similarly addressed. However the social encyclical addresses a much larger, perhaps even universal, audience.

After a brief introduction, the structure of the encyclical letter is formulated around six primary sections: the first reexamines the significance of Paul VI’s 1967 encyclical Populorum Progressio; the second considers the issue of human development in “our time”; the third concentrates on the interrelated issues of fraternity, economic development, and civil society; the fourth investigates together several matters dealing with the development of people, their rights and duties, and the environment; the fifth considers cooperation within the human family; and, the sixth studies the development of peoples within the framework of technological developments. As is typical, an integrating conclusion winds up the encyclical. I will offer a brief and, most likely, too broadly painted commentary on each of these components:

 

The Introduction

Here Benedict emphasizes the nexus between “charity in truth” and the witness given by Christ in his earthly life. The Pope states that the driving force for authentic development of every person and the common good is love—caritas—exemplified by Jesus Christ. And it is this love that Christ taught that is the truth that underpins authentic human progress. Moreover, it is this love and the truth about it that are central to the Church’s social teachings. But if charity and truth are not inextricably linked, each can become a distortion of its authenticity. As the Holy Father states, “Truth needs to be sought, found and expressed within the ‘economy’ of charity, but charity in its turn needs to be understood, confirmed and practised in the light of truth.” [N. 2] He goes on to say, “In the truth, charity reflects the personal yet public dimension of faith in the God of the Bible, who is both Agápe and Lógos: Charity and Truth, Love and Word.” [N. 3] Within this idea is the meeting of the individual and the other wherein the personal and the common goods intertwine. A final important element of this rich introduction is this point which the Holy Father has raised elsewhere in his exhortations about the relation between the Church and civil society, including the State: “The Church does not have technical solutions to offer and does not claim ‘to interfere in any way in the politics of States.’ She does, however, have a mission of truth to accomplish, in every time and circumstance, for a society that is attuned to man, to his dignity, to his vocation.” [N. 9] The Pope then turns to his consideration of Paul VI’s encyclical On the Development of Peoples.

 

The encyclical Populorum Progressio

The first thing that Benedict does in this section is to emphasize the continuity among his encyclical, that of Paul VI, and the social teachings of the Church. Even though new issues may emerge in the human condition with the passage of time, the Church’s teachings are still rooted in the eternal wisdom of God. As Benedict phrases it, the “truth of the faith, namely that the Church, being at God's service, is at the service of the world in terms of love and truth.” [N. 11] This certainty, he continues, is based on two points: (1) the Church is and must be engaged in promoting integral human development, and (2) authentic human development concerns the whole of the person uniting all single human dimensions. In short, it is essential to see human existence as the integration of physical and eternal life. Without this crucial synthesis being appreciated, human development and human existence are at the mercy of the prevailing and dominant influences of human history. While Benedict emphasizes continuity in the Church’s teachings, he characterizes it in this fashion: “Coherence does not mean a closed system: on the contrary, it means dynamic faithfulness to a light received.” [N. 12] While Benedict raises many important issues in this segment, he emphasizes the meaning and value of human life that are essential to true human development. Without recognition of the essence of the human person and human life, any theory of “human development” or “human progress” will be deficient.

 

Human development in “our time”

This segment of the encyclical again relies on the work and analysis of Paul VI and acknowledges the essential interrelation of the challenges to physical human development (health, economy, and social relations) and the truth of human nature and the essence of human existence. This interrelationship has been increasingly challenged by the physical “progress” of human society which evolves from the fragmentation of human wisdom. As Benedict proposes, “We recognize, therefore, that the Church had good reason to be concerned about the capacity of a purely technological society to set realistic goals and to make good use of the instruments at its disposal.” [N. 21] These challenges are intensified when “profit” rather than “authentic development” define progress. Here he illustrates well his point by examining in some depth the current global economic crisis. For a remedy to this crisis, the Pope exhorts that “progress of a merely economic and technological kind is insufficient. Development needs above all to be true and integral.” [N. 23] As he notes further, combating this challenge is within the competence of the human person, society, and the institutions they develop. The failure to meet and overcome the challenges that face the world today can be traced to the absence of love and truth. As he states, “There is always a need to push further ahead: this is what is required by charity in truth. Going beyond, however, never means prescinding from the conclusions of reason, nor contradicting its results. Intelligence and love are not in separate compartments: love is rich in intelligence and intelligence is full of love.” [N. 30]

 

Fraternity, economic development, and civil society

This element of the encyclical recalls the interrelation between giving and receiving. God has given us much, but through the influence of original sin—of turning from God and into one’s self—it seems to be the case that it is important only to receive; to give is something rarely if ever considered. As he says,

The conviction that man is self-sufficient and can successfully eliminate the evil present in history by his own action alone has led him to confuse happiness and salvation with immanent forms of material prosperity and social action. Then, the conviction that the economy must be autonomous, that it must be shielded from “influences” of a moral character, has led man to abuse the economic process in a thoroughly destructive way. In the long term, these convictions have led to economic, social and political systems that trample upon personal and social freedom, and are therefore unable to deliver the justice that they promise. [N. 34]

Hope must not be restricted to the present moment; it must be viewed as something that ties one and all to the future and our common human destiny that is easily forgotten and sometimes denied. Here the Pontiff emphasizes a crucial element of Catholic social thought, i.e., solidarity and the common good. Failure to recognize this critical nexus cannot rest upon the limitations of our social, economic, and political institutions; it must rest with the human person and the community of human persons, for it is they who confect these institutions that can and do fail; but they can also succeed if that is the will and hope of man and his brothers and sisters. As Benedict properly asserts, “it is man’s darkened reason that produces these consequences, not the instrument per se. Therefore it is not the instrument that must be called to account, but individuals, their moral conscience and their personal and social responsibility.” [N. 36]

 

The development of people, their rights and duties, and the environment

This fourth element of the encyclical identifies the problems that emerge from the exaggerated autonomy that is characteristic of many aspects of the contemporary world. When the issue of “the development of people” is replaced with the notion of “the development of the isolated and autonomous individual,” the critical nexus of rights and responsibilities is abandoned. In this regard, we may recall the teaching of Jesus that in order to save one’s self, it is necessary to lose one’s self. This does not mean that caring for the self is the problem; it is the problem when self-care takes place without consideration of the other and the world in which the individual person finds himself or herself. As Benedict concludes, “it is important to call for a renewed reflection on how rights presuppose duties, if they are not to become mere license.” [N. 43] A proper understanding to the rights of the individual must exist in the context of the anthropological and ethical framework that necessitates the consideration of not just the one or the group but the every and the all. At this point the Pope addresses population issues, and here he states that human sexuality “cannot be reduced merely to pleasure or entertainment, nor can sex education be reduced to technical instruction aimed solely at protecting the interested parties from possible disease or the ‘risk’ of procreation.” [N. 44] As he further states:

Morally responsible openness to life represents a rich social and economic resource. Populous nations have been able to emerge from poverty thanks not least to the size of their population and the talents of their people. On the other hand, formerly prosperous nations are presently passing through a phase of uncertainty and in some cases decline, precisely because of their falling birth rates; this has become a crucial problem for highly affluent societies. The decline in births, falling at times beneath the so-called “replacement level”, also puts a strain on social welfare systems, increases their cost, eats into savings and hence the financial resources needed for investment, reduces the availability of qualified laborers, and narrows the “brain pool” upon which nations can draw for their needs. [N. 44]

In tying the various points of this section together, the Holy Father emphasizes that much depends on the underlying principles of morality and whether they are subjectively or objectively determined and defined. The truth about the objective and transcendent moral order is crucial to all issues, be they those that concern population growth or the economy or anything else including the environment that surrounds the human family. As the Pontiff insightfully argues, “The way humanity treats the environment influences the way it treats itself, and vice versa.” [N. 50]

 

Cooperation within the human family

Throughout the encyclical, Benedict portrays a variety of dimensions of human poverty. In this segment he identifies an underlying element that tends to affect or produce these various manifestations of poverty: human isolation. In short, he advances the idea that material and spiritual poverties “are born from isolation.” [N. 53] When man is by himself, even though he may be surrounded by plentiful material goods, he is poor; when he is isolated from the care, concern, and love of others, he is indigent; when he cuts himself off from all others including God, he is destitute. As the Pope states, “All of humanity is alienated when too much trust is placed in merely human projects, ideologies and false utopias... The development of peoples depends, above all, on a recognition that the human race is a single family working together in true communion, not simply a group of subjects who happen to live side by side.” [N. 53] What provides vital assistance to the Christian in this context is a realization and acceptance of the vital need for relation: as God is related in the Trinity, so man must be related to his fellow brothers and sisters. The role of unity is crucial to the success of the human person and the human family. Here the Pope reintroduces the significance of the theme of religious liberty, which is discussed in various parts of the encyclical:

The Christian religion and other religions can offer their contribution to development only if God has a place in the public realm, specifically in regard to its cultural, social, economic, and particularly its political dimensions. The Church’s social doctrine came into being in order to claim “citizenship status” for the Christian religion. Denying the right to profess one’s religion in public and the right to bring the truths of faith to bear upon public life has negative consequences for true development. The exclusion of religion from the public square — and, at the other extreme, religious fundamentalism — hinders an encounter between persons and their collaboration for the progress of humanity. Public life is sapped of its motivation and politics takes on a domineering and aggressive character. [N. 56]

The Holy Father goes on to explain that human progress needs to take stock of the fruitful relationship between faith and reason which is kin to charity and truth. Recognition of this relationship brings us closer to realizing God’s plan for all His most beloved creation, the human family and all its members. Moreover, the way to achieve this objective is by putting aside parochial interests and pursuing instead an encompassing cooperation that fosters development for all in matters economic, social, cultural, political, and spiritual. In short, I think Benedict is assisting the faithful and all people of good will to see that the progress of the ego must necessarily be tied to progress for the other as well because each of us reflects not only the image of the self but also the image of the other and God. Another way of putting it is this: as I am, so you are; as you are, so am I.

 

The development of peoples within the framework of technological developments

Finally, the Pope looks at the relation between human development and the extraordinary progress in technology over the last several decades. He suggests that a lesson is to be learned from the tragedy of Prometheus: the reliance on technological development must ultimately lead each and every person to the realization that it is a part of God’s command “to till and keep the land.” [N. 69] Technology is a tool rather than an end. If it is pursued as an objective by itself rather than as a means to something more noble, human existence and the truth upon which it depends may lie forfeit. Advances in technology that do not take account of moral responsibility will inevitably lead the human family away from rather than to authentic human development. Here the Pontiff’s prescient words are particularly revealing:

Development is impossible without upright men and women, without financiers and politicians whose consciences are finely attuned to the requirements of the common good. Both professional competence and moral consistency are necessary. When technology is allowed to take over, the result is confusion between ends and means, such that the sole criterion for action in business is thought to be the maximization of profit, in politics the consolidation of power, and in science the findings of research. [N. 71]

The Pope’s critical eye aids us in seeing the truth that authentic human development is ultimately tied to the entirety of human existence that includes the welfare not simply of the body but also of the soul; not only of the present moment but also of eternity. [N. 76]

 

Conclusion

At this point in the encyclical, the Pope advances a fundamental theme in his presentation: the human person cannot truly advance or develop without God and without his fellow human beings. As he states, “Only if we are aware of our calling, as individuals and as a community, to be part of God’s family as his sons and daughters, will we be able to generate a new vision and muster new energy in the service of a truly integral humanism. The greatest service to development, then, is a Christian humanism that enkindles charity and takes its lead from truth, accepting both as a lasting gift from God.” [N. 78] With Him, we can become more; without Him, we will surely degenerate into less. As Benedict XVI likes to conclude his public exhortations, he ends this encyclical with a prayer: “ ‘Let love be genuine; hate what is evil, hold fast to what is good; love one another with brotherly affection; outdo one another in showing honour’. May the Virgin Mary — proclaimed Mater Ecclesiae by Paul VI and honoured by Christians as Speculum Iustitiae and Regina Pacis — protect us and obtain for us, through her heavenly intercession, the strength, hope and joy necessary to continue to dedicate ourselves with generosity to the task of bringing about the ‘development of the whole man and of all men’.” [N. 79]

 

I encourage members and readers of the Mirror of Justice to read, savor, and discuss this exceptional text issued this morning. I hope that the broad strokes with which I have portrayed Benedict’s Caritas in Veritate will not be viewed as a substitute for reading and pondering his words but, rather, as a catalyst to tolle lege, to borrow from the words of St. Augustine.

 

RJA sj

 

The Feast of St. Thomas, the Apostle

 

 

Today is the feast of St. Thomas, the Apostle. I was taken by a passage from St. Paul’s letter to the Ephesians, the first reading. Saint Paul exhorts: “You are no longer strangers and sojourners, but you are fellow citizens with the holy ones and members of the household of God, built upon the foundation of the Apostles and the prophets, with Christ Jesus himself as the capstone. Through him the whole structure is held together and grows into a temple sacred to the Lord.”

I am mindful that our dear friend and colleague at MoJ, Michael Perry, has again drawn our attention to the pages of The New York Times, which has recently presented an article on the multiple visitations by Roman authorities to women’s religious congregations in the United States. Of course, we need to recall that the Holy See recently concluded a corresponding visitation of the seminaries and men’s religious community formation houses in the United States. Although I have much fondness and sincere, profound respect for Michael, I do not share his apparent perspective on The New York Times article to which he has most recently brought our attention.

I have served for many years as a chaplain to houses of women religious in the United States and abroad. From this perspective, I have witnessed that many women religious in the United States are not like those quoted in The New York Times article to which Michael has referred us. From the outset, I am a bit skeptical of The New York Times implication that women religious were the “often-unsung workers who helped build the Roman Catholic Church in this country.” Indeed, they were unsung heroines, as were many lay people, priests and religious brothers. But the insinuation of the Times must be countered by the fact that amongst the native saints of the United States, there are more religious women who have been canonized than men. By my count, there are five American women (and religious) saints [Elizabeth Ann Seton; Rose Duschesne; Katherine Drexel; Frances Cabrini; and, Mother Theodore Guerin] to three men who have been beatified [John Neumann; Isaac Jogues; and, Rene Goupil—arguably, Canada can also claim Jogues and Goupil]. So, I am skeptical of the Times’ claim about unsung heroes and heroines. My point is that many people, men and women, lay and religious and clerics, have been unsung heroes and heroines of the Church in the U.S. So the point the Times wants to make is eclipsed by the facts of the Church’s history in the United States.

So we come to the matter of authority which is important to the Church and most other institutions, both temporal and legal and divine. I respect the Times’ claim to its own authority in the fields where it is competent, but its competence is not without limit for there are occasions when it likes to extend its authority to places where its competence is thin. This article to which Michael refers us is an illustration of this meta-competence.

In any event, I know from my chaplaincy to American women religious that many, not just some American women religious, are grateful that the Church’s Roman authorities are beginning to pay attention to the problems that exist within religious life in the United States. I think the concern concentrates largely on the fact that the idea of religious life has been compromised by some [this includes both male and female members of religious communities] who view themselves beyond the authority of the Church and of their own Constitutions. The Holy See is not, as the Times suggests, trying to push women or any religious back into “convents, wearing habits or at least identifiable religious garb” not “ordering” [the Times’ word] but, rather, reminding them that “their schedules” should focus on “daily prayers and working primarily in Roman Catholic institutions.” This is their charism that explains why these orders were founded and recognized in the first place. To “sojourn” is alien to what they are about and why these orders were established.

And, this is where St. Paul’s wisdom, to which I previously referred, comes into play. He reminds the faithful of the early Church that the time for being a stranger and sojourner is a thing of the past. Yet, the Leadership Conference of Women Religious appears to be focused primarily on an existence beyond the Church that entails sojourning to unspecified destinations. It would seem that some members of this organization’s leadership (of leadership) have forgotten St. Paul’s counsel. For example, in 2007 at the Leadership Conference of Women’s Religious, the keynote speaker, Sister Laurie Brink exhorted,

The dynamic option for Religious Life, which I am calling, Sojourning, is much

more difficult to discuss, since it involves moving beyond the Church, even beyond

Jesus. A sojourning congregation is no longer ecclesiastical. It has grown beyond the

bounds of institutional religion. Its search for the Holy may have begun rooted in Jesus as

the Christ, but deep reflection, study and prayer have opened it up to the spirit of the

Holy in all of creation. Religious titles, institutional limitations, ecclesiastical authorities

no longer fit this congregation, which in most respects is Post-Christian.

In her own words, Sister Brink claims that sojourning is still necessary. All right. But, beyond the Church? Beyond Christ? Beyond Christianity? My friends at MoJ, this is a problem of grand proportion. But the problem does not stop here.

As I read further on in the pages of the Leadership Conference of Women Religious’s website, numerous statements echoing the sentiments of Sister Brink proliferate. But I see no statements reflecting the views of many women religious who continue to labor for Christ, the Church, and God’s people in fidelity to their Congregations and Peter. The Times appears disinterested in the dissenting but not the faithful views.

I guess that is why the Times believes it has the self-conferred emancipation to describe Mother Mary Clare Millea, the head of her congregation and a principal in the Holy See’s examination of women religious in the United States, as “an apple-cheeked American with a black habit and smiling eyes”, and another American woman religious who “has urged [her] fellow nuns not to participate in the study”, as a “professor emerita of New Testament and spirituality at the Jesuit School of Theology at Berkeley, in California.” Perhaps the Times is also more interested in sojourning to a destination that becomes increasingly unclear but also uniformed by reporting this story about the Church and her authority in the fashion that it did.

 

RJA sj

 

A life “not worth living”?

 

I would like to follow up on Rick’s comment to Rob’s post regarding the recent Cahn-Carbone posting on Prawfsblawg.

 

I have read this posting, and it appears that the Cahn-Carbone argument rests in large part on the attempt to justify the abortion on the grounds that one person can determine that another’s life is not worth living. This justification is premised on the integrity and coherence of the rationale that one person has the right, the ability, the competence, etc. to conclude that another’s life is not or will not be worth living. This is flawed reasoning that is premised on a problematic subjectivity rather than objectivity.

 

I cannot agree with Cahn and Carbone that the parent can “profoundly appreciate” the value of the child’s life but nonetheless proceed to terminate the life of the child for the child’s “own good.” This decision is not based on logic but sophistry.

 

RJA sj

Thoughts and Action—Catholic Legal Theory

 

 

I am grateful to the previous interveners who have presented some important points regarding the role of Catholic legal theory in the daily work and lives of Catholic lawyers. I intend my small contribution today to complement what has already been presented.

I include myself amongst those who have questions, even suspicion, about some legal theories. In reading particular law review essays on “legal theory,” for example, I get the impression that their authors either have given little if any consideration to the application of what they have to offer, or if they have, they could only realize in practice what their theories espouse through a radical revolution in the economic, political, and legal structures and cultural institutions in which we exist today.

However, when it comes to Catholic legal theory, or at least what I think we are attempting to accomplish in this agora, I have a different outlook. While we may not often probe the ethical issues surrounding some aspects of the conduct of lawyers, such as reconciling work done and fees charged, we nevertheless do wrestle with fundamental issues that address the essence of the human person and his nature, the relation of the individual and the societies in which the individual exists, and the proper role that law may have involving these important matters that intersect the lives of everyone.

One individual who exemplifies this synthesis of theory development and practical application is Heinrich Rommen. As I page through his The State in Catholic Thought: A Treatise in Political Philosophy and The Natural Law: A Study in Legal and Social History and Philosophy, I encounter the mind of a great Catholic layman who was, as Russell Hittinger reminds us, not a theoretician so much as a practicing lawyer writing “in response to a political and legal crisis.” The crises of our day are different from those of the time in which Dr. Rommen wrote these remarkable and insightful texts. Nonetheless, I think that the contributors to the Mirror of Justice expend our humble efforts as Catholics to think about and write on what we understand to be the role of law in responding to the predicaments of the present age.

 

RJA sj

 

International Theological Commission on the Natural Law

 

 

Contributors and friends of the Mirror of Justice may recall that last December I posted a brief synopsis of the International Theological Commission’s (ITC) anticipated document on “The Search for Universal Ethics: A New Look at Natural Law.” [HERE ] The ITC recently issued the promised text; however, it is currently available only in Italian [HERE ] and French [HERE ].

 

I was speaking with a former member of the ITC the other day, and he was not sure that an English version would be in the works, but he hastened to add that a Spanish version is now in translation. That might suggest that the an English version will follow.

 

In the meantime, I hope that this simple overview might help those who consult this website be aware of the ITC’s important work that I believe has a bearing on the development of Catholic legal theory. The first point is the ITC’s recognition that natural law and its objective values provide an essential basis for universal ethics. The nexus between a universal understanding about ethical norms and the natural law cannot be stressed too much. Moreover, the ITC’s document mentions several times the dangers of the purely positive approach to law making and adjudication that emphasizes the subjective rather than the objective requirement for law which can lead to statism or worse. The essence and nature of the human person are crucial to the development the objective norms about which the text speaks.

 

While not mentioning the “mystery of life” passage of Casey v. Planned Parenthood, the ITC is nevertheless critical of the subjective approach that the leads to an exaggerated autonomy that dictates values which deem objective norms immaterial or irrelevant. The Casey approach that seems to magnify the importance of human dignity, in fact, undermines it because that which is due the person is subjectively rather than objectively determined. In short, the ITC acknowledges that while individuals are often different, there must be objective and universal norms knowable by the natural law that guarantee the existence and protection of one and all in their enjoyment of fundamental rights, or the suum quique—to each his or her due.

 

Another point emphasized by the ITC is that the law made by human society must rely on the “light of reason” to develop juridical principles that prefer the moral act over the immoral one. The reason here is not the “rationalistic” one but that based on the notion familiar with the Catholic intellectual tradition of “right reason.” For it is right reason that enables people from across the globe to understand better what is common to each human being regardless of culture, religion, ethnicity, etc. Importantly, the ITC concludes this text by noting that the Christian understanding of natural law must, sooner or later, take account of the teachings of Jesus Christ.

 

RJA sj

 

A reply to Rob on human dignity and the views of Anders Nygren

 

 

Thanks to Rob for his posting regarding the Lutheran bishop Anders Nygren’s work. Rob has asked the question regarding Nygren’s potential influence on Martin Luther King, Jr. I am not commenting on that influence because we do not have what King offered in response to Nygren nor his confession of Nygren’s influence on him, King. However, Rob asks the fair question regarding whether Nygren’s quoted passage reflects Catholic teachings and perspective regarding human dignity?

Rob believes the answer is “yes”.

I am unwilling to join Rob on this point—especially in the context of Nygren’s views on what he calls “creative love”.

Knowing that we are discussing human dignity, something discussed here at Mirror of Justice in the past, Nygren is quoted as saying, “The man who is loved by God has no value in himself; what gives him value is precisely the fact that God loves him.” I am not disputing Nygren’s point that God loves the individual human person. I am concerned about his statement the person “has no value in himself.”

This point made by Nygren does not coincide with that made by John Paul II who, relying on the work of Jacques Maritain, stated that the dignity that is due man is due him because he is man. This point does not correspond to Nygren’s perspective and his notion of “creative love”. The human person is indeed a part of God’s creation, but it is God who made each person in His image, and it is this image that commands respect, dignity regardless of that which makes one person different and distinct from the other. Nygren’s statement suggests that the person has no value until God decides to love him after his creation—if God decides to love him at all. John Paul II appears to suggest that God wanted to love man and, therefore, created him. God puts the love first. Nygren implies that God’s love of His creation came as an afterthought.

 

RJA sj  

Further thoughts on conscience in light of the Notre Dame commencement

I am sure that many readers of the Mirror of Justice would concur that a lot has been said on these pages concerning the question of conscience—both from Catholic and other perspectives—over the recent past. I have offered my occasional thoughts, and other contributors have as well. Having read the several addresses delivered at Notre Dame this past Sunday, in particular those of President Obama and Judge Noonan, I have concluded that a few more words are in order in light of what was said by these two individuals who spoke from their respective convictions.

At the outset, I think that it is important to keep in mind the distinction as to whether the subject of conscience is being addressed from a generic, secular perspective or one that is attuned to the development of Catholic legal theory. I am of the view that both perspectives have or can have a great deal in common, but since this is not a book or a scholarly law review essay, I haven’t the space here to elaborate fully the similarities and the differences. Having made this point, I would think that most would agree with my general contention. Both President Obama and Judge Noonan commented on conscience and its role in the res publicae, and what they had to say may sharpen rather than blunt what Catholic legal theory, or at least one version of it, has to propose on the topic.

President Obama offered just a few words on the matter. He said,

Let’s honor the conscience of those who disagree with abortion, and draft a sensible conscience clause, and make sure that all of our health care policies are grounded in clear ethics and sound science, as well as respect for the equality of women.

I ponder what he means by a “sensible conscience clause.” He offered no details at Notre Dame, but I hasten to add that his commencement address was not the forum in which to offer the particulars of what he meant. Nevertheless, I would very much like to know what he considers the necessary elements of his views on conscience protection, and I look forward with intense interest on the elaboration that he will probably offer in the future as the question of conscience continues to enter the public debate.

Judge Noonan offered considerably more. In what I hope is a careful and accurate editing of his address, here is what he said about conscience:

For half a century now, a great debate has gone on in this country about a matter touching the inviolability of human life in a mother’s womb, the rights of a woman with respect to her own body, the duties of doctors, the obligations of parents, and the role of government in a decision that is patently personal and significantly social.

The matter of this debate was too serious to be settled by pollsters and pundits; too delicate to be decided by physical force or by banners and slogans, pickets and placards; too basic for settlement to be based on a vote by judges. The matter was settled—so it seemed—thirty-six years ago. The settlement was still-born. Debate intensified. Debate is not now about to close. At its center are the claims of conflicting consciences.

By conscience, as you graduates of 2009 know, we apprehend what God asks of us and what the love of our neighbor requires. More than the voice of your mother, more than an emotional impulse, this mysterious, impalpable, imprescriptible, indestructible, and indispensable guide governs our moral life. Each one is different. You may suggest what my conscience should say, but you cannot tell me what my conscience must say.

That’s the rub when your moral vision is clear and the other fellow’s is cloudy. You become impatient, the more frustrated if the other fellow is a friend—an old friend or a potential friend. Why can’t he or she see it? To satisfy that frustration by shunning or denouncing your unseeing companion will accomplish little beyond expressing your own exasperation.

Help your cause by hurting your friends? No. What does work is prayer, patience, empathy, and the love that encircles the other person, a fellow creature attempting to do what he or she sees as right.

One friend [a reference, I believe, to Mary Ann Glendon] is not here today, whose absence I regret. By a lonely, courageous, and conscientious choice she declined the honor she deserved. I respect her decision. At the same time, I am here to confirm that all consciences are not the same; that we can recognize great goodness in our nation’s president without defending all of his multitudinous decisions; and that we can rejoice on this wholly happy occasion.

We can rejoice that we live in a country where dialogue, however difficult, is doable; where the resolution of our differences is done in peaceful ways; where our president is a man of conscience. We can rejoice with you, members of the Class of ‘09, as your voices join the dialogue and declare your own consciences on the urgent moral matters that will be settled only when they are settled right.

“Great is truth. It will prevail.” This scriptural text is inscribed on the Laetare Medal. Believing the Bible, sustained by this message taken from it, we can work together. Yes! We can work together, serenely secure in that trust that the truth will out.

 

I apologize for the lengthy quotation, but I think it essential to present what may have been Judge Noonan’s suggestion to President Obama regarding the contents of a “sensible conscience clause.” In my estimation, Judge Noonan was correct in saying that one person’s conscience cannot dictate what another’s should be. Thomas More made a similar observation almost five hundred years ago. In this regard, we can recall Louis Brandeis’s remark about the right to be left alone. The state has no business in interfering with a person’s conscience be it well-formed as I have discussed in previous postings or otherwise. This is not to say that a person who declares himself or herself Catholic can claim that one’s personal conscience is well-formed because of this right to be left alone. As the Judge himself stated, not all consciences are the same. In relation this point, Judge Noonan suggested that a person’s conscience should be in tune with something extending beyond the individual’s private thoughts when he stated that “we apprehend what God asks of us and what the love of our neighbor requires.” He concluded his address with a remark about the greatness of truth which he stated will ultimately prevail. But, what is the source of this truth, and what is its relation to conscience and what I have been attempting to argue regarding its proper formation?

Indeed, a part of conscience is a very private matter, for that is where each of us encounters the essential norms that are not of our own derivation but which we must nonetheless obey if we consider ourselves disciples of Jesus Christ and members of his body, the Church. Judge Noonan was on target when he pointed out that “conscience” is conscious of what God asks and what is due the neighbor. It is here, in conscience, where we who believe in God encounter God in the depth of our individual being. Often times the Church makes this point in her teachings on the natural moral law—the place where we encounter the law of God that is inscribed on our hearts. It is in this inner sanctuary where we find God’s law—God’s commandments engaging our individual being, permeating our essence, encountering us in the fabric of human existence. It is here where we engage and respond to the constant challenge of doing good and avoiding evil.

Conscience, for the Catholic, is not merely the act and response of how one feels about something that has a moral bearing. It is an exercise of reason—right reason where the individual as a disciple of Christ recognizes what is morally good and what is not and then chooses to do what is good and strives to avoid what is not. It is vital to understand that these elections are not purely autonomous but involve the engagement of the individual person with God speaking to the believer. I think it was Newman who said that conscience is God’s “messenger” or “herald.” Judge Noonan mentioned prayer and patience, and it is by prayer that we engage more deeply the message and the Messenger.

Conscience involves the exercise of personal dignity, but it does not stop there. It cannot, for inevitably it brings us in relation to God, to the world, and to our neighbor. Indeed, conscience must be sensible—as President Obama implied—but it cannot be what is convenient, what satisfies a group consensus, or what is necessary to achieve a political compromise. No, the “sensible” associated with conscience is much more. Inevitably, the “sense” associated with it must be inclined to the objective truth that I have previously addressed, and this Truth is God if we are discussing the conscience of the Christian. Otherwise, the Christian’s purported exercise of “conscience” is prone to be an application of subjectivity distant from God and what He asks.

As I mentioned in stating my agreement with Judge Noonan on this point, no person can dictate to another what his or her conscience should hold. However, what a person holds in conscience and how that conscience is formed do not guarantee that his or her conscience is well-formed. For the Catholic, one’s conscience is well-formed by the voice of God speaking to that person. And I believe that the way of testing this is to see whether the Catholic’s conscience is in tune with what God’s Church teaches.

It may be that I and some other members of the Mirror of Justice disagree on this. But for the Catholic’s conscience to be well-formed and for the moral judgments which he or she makes to be in accord with conscience’s proper formation, it is not self-revelation or self-opinion that is determinative, it is the encounter with the wisdom that God. God’s wisdom is available to us in prayer, in human interaction, and through the exercise of right reason. Again, I believe that Judge Noonan and I agree that no person can tell another what he or she must do in the exercise of conscience. But this means that that person’s exercise of the well-formed conscience is not based solely on personal autonomy.  Otherwise the person’s conscience may be in error. This does mean that another person or the state can interfere with his or her “inner voice,” but by the same token it does not mean that this person’s inner voice is correct and without error. The person may have a civil right to believe the error, but the error itself does not. Coming back to the person who, in the exercise of his or her civil right, is in error does not mean that this individual’s view and the subsequent exercise of conscience are consistent with the wisdom of God. It is not the civil authority that makes this determination, but God.

Conscience is a sanctuary from other persons and the state. But it is not a sanctuary from God. It is the ground upon which we, as individuals, meet Him and decide how to respond to what God asks. Conscience may well be the greatest defense a person can have against what the civil authority unjustly demands, but it is not an excuse to exclude one’s self from the mandate of God and the wisdom He offers to us all.

 

RJA sj