Saturday, September 22, 2018
I enjoyed this piece in The Atlantic, on the importance and vulnerability of America's "social infrastructure." Here's a taste:
Social infrastructure is not “social capital”— the concept commonly used to measure people’s relationships and networks—but the physical places that allow bonds to develop. When social infrastructure is robust, it fosters contact, mutual support, and collaboration among friends and neighbors; when degraded, it inhibits social activity, leaving families and individuals to fend for themselves. People forge ties in places that have healthy social infrastructures—not necessarily because they set out to build community, but because when people engage in sustained, recurrent interaction, particularly while doing things they enjoy, relationships—even across ethnic or political lines—inevitably grow.
The author's focus is on "physical places." So, when he talks about churches, it is in terms of their being places where people (physically) gather, etc.: "Nonprofit organizations, including churches and civic associations, act as social infrastructure when they have an established physical space where people can assemble, as do regularly scheduled markets for food, clothing, and other consumer goods." This is fine, so far as it goes, but in some of my own work, I've tried to explore the "infrastructural" role that churches play as (quoting Paul Horwitz) "First Amendment Institutions." Take a look, here, here, and here.
For a different "take" than the one by Adrian Vermeule and Gladden Pappin, which I posted the other day ("China and the Vatican: Principles for the Rationally Ignorant Catholic"), see this piece, by George Weigel. Weigel contends, among other things, that the "deal" being discussed would represent a deeply regrettable failure to learn lessons from the failure of the 1933 Reichskonkordat and would violate the Church's law which states that "no rights or privileges of election, appointment, presentation, or designation of bishops are conceded to civil authorities."
Thursday, September 20, 2018
The following post was co-authored by our own Adrian Vermeule and Prof. Gladden Pappin (Univ. of Dallas):
China and the Vatican: Principles for the Rationally Ignorant Catholic
Gladden J. Pappin and Adrian Vermeule
There is news that the Vatican is on the verge of finalizing an agreement with the government of the People’s Republic of China, restoring official relations that were severed in 1951. The terms are as yet unclear, but the reports indicate that, in broad outline: the PRC government will recognize the Holy Father as the head of all Chinese Catholics; bishops will be chosen through a joint approval process, in which the Chinese government will propose nominees and the Vatican will have, at a minimum, veto power and possibly some exercise of choice; the so-called underground churches will be recognized; and a group of seven excommunicated bishops, validly consecrated though without papal mandate, yet who have requested regularization, will be legitimated and restored to their sees. (Again, these provisions are as yet not finally settled, but the precise details are not critical for our analysis.)
What is the busy, ill-informed Catholic to make of this? Denunciations have been swift from the neoconservative Right of American Catholicism, who speak of Pope Francis’s surrender to Communism and abandonment of the underground churches, and who seethe about the failures of Ostpolitik. Yet these denunciations have an odd time-capsule quality to them, as though it is always 1989, even though the Chinese regime has clearly evolved away from “Communism” per se to a kind of neo-Confucian authoritarianism. They are also oddly selective, overlooking the long, complicated, varied history of concordats between the Vatican and various regimes. One suspects at a minimum that matters are more complex than the neoconservative view suggests. In particular, there seem to be real trade-offs or even dilemmas, in this space, among competing aims, goals and principles—political, ethical and diplomatic. How to think about all this, without any real expertise?
We are not China hands. Indeed, the fact that we lack the competence or information to evaluate the first-order merits of the arrangement, relative to the feasible alternatives, is (for us) fully rational, in the sense that it is too costly (at least in an opportunity-cost sense) to acquire the relevant expertise. We are rationally ignorant Catholics. But we can at least suggest some principles of low-information rationality—heuristics or rules of thumb—that are useful in such situations.
Who decides? A simple idea is that rather than attempting to evaluate the difficult trade-offs that afflict all first-order policy choices in this area, one should attempt to identify who is best positioned to evaluate those trade-offs. Here is a simple schema, merely for purposes of illustration. One might defend the Vatican’s decision by observing that “one should not allow the perfect to become the enemy of the good.” One might oppose it with the rejoinder “the good must not become the enemy of the still better.” Life teaches that sometimes one of these maxims is apt, sometimes another, depending upon circumstances. Which is most relevant here? It is highly plausible that the Vatican, which has a worldwide perspective on these matters, is better positioned to decide.
Dueling experts. Another strategy of low-information rationality is to rely on expert opinions. In principle, this is extremely helpful in such situations. The problem for the rationally ignorant Catholic, however, is that there are dueling experts in this space, and it is difficult to perform a meta-evaluation of their knowledge. In administrative law, the typical response to this is to say that where credible experts disagree, a decision-maker may rationally rely on any one of the competing views. In this sense, it is hardly unreasonable for the Vatican to listen to those of its experts who counsel some form of compromise with the regime.
Rationality review. A related point is best explained by analogy to rational-basis review in law, which is a typical approach to situations in which the decision-maker has information or competence that the evaluator lacks. The Supreme Court recently invoked a form of rationality review in Trump v. Hawaii to evaluate executive action bearing on foreign policy and security, as the Vatican’s diplomatic decision here surely does. The bedrock principle of rationality review is that the decision-maker should uphold the relevant action if any rational grounds for it can be identified or even conjectured.
Here there is a mistake that Western observers may easily commit. The circumstances of churches under liberalism easily lead to a confusion of appropriate standards for evaluating the relations of sovereign powers. Religious agents in liberal regimes can, within narrowing limits, take actions (e.g., establishing churches, distributing propaganda) immediately on the basis of sincerely held beliefs—behavior explained by thick or belief-driven models of rational behavior. Sovereign powers engaged in treaty-making negotiations act with considerable external constraints not captured by the thick-rationality models instinctively used by commentators in countries with liberal policies toward sects. Viewing bargaining with suspicion may itself result from a liberal model of interaction among sects.
To make matters more complicated, negotiations between the Holy See and civil governments also do not fit the two-level-games model often used to analyze international agreements with reference to both international and domestic concerns. Instead a polycentric model of China-Holy See negotiations would be needed to describe the multiple levels at which games occur in dealings between an “ecclesiastical polity” and a state, as well as the different arenas of choice affected by any final concordat. Negotiation over concordats and similar ecclesiastical-political conventions adds several levels of action (each with interaction effects) beyond, say, the recent U.S.-Mexico trade agreement.
An account of the distinct, intersecting levels of negotiation would require a much longer treatment. “Citizenship” or membership in the Church functions differently from citizenship in a civil regime. But while ecclesiastical and civil citizenship are easily distinguished in liberal political contexts (in which the liberal polity takes no official cognizance of ecclesiastical status), nonliberal regimes frequently give rise to questions of overlap and exclusion: Who are members of the Catholic Church in China? What civil status is accorded to such members? What is the jurisdictional structure of the Church in China, and how does it relate to existing quasi-ecclesiastical bodies established by the state but frequently in the context of valid sacramental order? On top of this, any negotiation between China and the Vatican is implicitly triangular given the disputed status of the Republic of China.
In this extraordinarily complicated context, we can imagine a number of rational grounds for a concordat between the Holy See and China. Rational does not mean there are no trade-offs or even tragic dilemmas, nor does it necessarily entail a maximization of some welfare function. We use it in a relaxed sense, meaning just that a roughly reasonable authority could think that, on balance, prudence weighs in favor of an agreement. Consider the following possibilities:
— Circumstances of evangelization. One might think that Christianity is exploding in China, that Protestantism is ahead in this race, that the main obstacle to Catholic evangelization is the problem of the Church’s status, and that it is best to regularize that status—even in a distinctly nonideal way—in order to allow the pace of Catholic evangelization to quicken. By the same token, if Catholic evangelization is bound to quicken in any event, the Church may perceive an increasing urgency to seize the means of clerical formation for the sake of that continued evangelization.
— Departure from prior conditions. During the initial, post-1951 period of the intense persecution of Chinese Catholics, practice of the Catholic faith went underground. In the long period following the establishment of the Chinese Patriotic Catholic Association, however, there is not a one-to-one mapping of “members of the Catholic Church” onto either unregistered Catholic churches or to the CPCA exclusively. Here the complexity of negotiations turns on the Church’s claim of jurisdiction over the baptized, with the added fact that it has not presumed ordinary faithful in the CPCA to be schismatic. The Church has thus continued to claim, by virtue of their baptism, jurisdiction over Catholics in the CPCA, yet lacks the ordinary exercise of that jurisdiction—an incoherent and intolerable situation requiring resolution.
— Resolution of original errors. Relations between the Holy See and China were severed in 1951 by China and not by the Holy See. The Holy See had established relations with the Nationalist government on Taiwan, and so it was rebuffed (for this reason among others) by the Communist Chinese government and its internuncio was expelled. Given that the Chinese government has sought the restoration of relations, in various ways, from the early 1980s onward, the possibility of resolving an original error may suggest to ecclesiastical negotiators the prudence of reaching an agreement. Further, failure to seek resolution of the original error for which it disclaimed responsibility could be perceived by Vatican negotiators as taking ownership of the original condition.
— Divergent evaluation of trade-offs. Perduring political institutions, of which the Church is a salient example, evaluate trade-offs differently than civilian religious actors. Even in ancien régime France, for example, the Church consented to royal prerogative in episcopal appointments governed by the Concordat of Bologna and signed in 1516 by King Francis I and Pope Leo X. The concordat, however, specified certain preconditions likely to lead to benign selections, and also reserved a veto power to the pope. (Ironically, the Church did not enjoy noninterference in episcopal appointments till after the Loi de séparation of 1905.) What citizens of liberal democracies view as a departure from the norm may be viewed by negotiators as a departure from a recent norm or even the revival of an older arrangement, with which the Church as an institution has centuries of experience. Accordingly, from the Church’s uniquely long-term perspective, any potential concordat with China may be more easily understood with reference to preliberal European concordats.
— “It is more important that the applicable law be settled than that it be settled right”—so that it can be unsettled later. Even on a more contemporary view, the Church currently tolerates and has recently tolerated a civil role in the selection of bishops. In 1966, the Vatican agreed to a concordat with François “Papa Doc” Duvalier of Haiti concerning the civil government’s role in the nomination of bishops. It was precisely this first agreement that, after the death of “Papa Doc,” eventually led to the Church’s liberty in selecting its own bishops. At present the Church already acknowledges a role for the government of Vietnam in the selection of bishops, an arrangement which may be seen by negotiators as sufficient precedent for reaching such an accord. Combining the two examples, Vatican negotiators may consider the value of recent examples (with unsavory regimes) not well known to a Western audience, as well as the value of establishing some agreement which would, in turn, be open to future modification.
— Ideal and nonideal decision-making. Although some commentators have cast the resolution of relations between China and the Holy See in terms pejorative to the current pontificate, negotiators may eventually conclude that the necessity outlined by previous popes (e.g., the Letter of Benedict XVI to the Catholic Church in China, Pentecost 2007) has come due. Since the reopening of negotiations between China and the Holy See in 1987, the apparent direction of civil liberties in China, and consequently also of the libertas ecclesiae, has changed. The consolidation of CPC rule under Xi Jinping suggests that unrealistic hopes of unilateral Chinese state liberalization may at least be rationally discounted against the urgency of resolving jurisdictional problems for Chinese Catholics. Diplomatic actors may rely on multiple criteria in evaluating potential consequences, whereas strident critics pick out a single dimension and absolutize it to preclude the possibility of negotiation. Put differently, the neoconservative critics often seem to assume that the alternative to the Vatican policy is some ideal of Chinese capitulation. Given that there is no evidence whatsoever that such an ideal can be attained, however, the Vatican faces a choice between distinctly nonideal futures.
— Recognition regimes. A question often neglected by American writers concerns the role of the Church in sovereignty recognition as well as the Church’s needs in the same sphere. China’s desires for sovereignty recognition are well known; by the same token, the Holy See’s diplomatic mission in Taipei is, at least in part, an accident of events belonging to a different political context. While the Holy See’s ability to offer sovereignty recognition may appear to be a minor aspect of ecclesiastical function within a liberal religious context (in which liberal principles have obviated the need for and the effects of recognition regimes), negotiators may view it as essential for operation in nonliberal regimes, and nonliberal regimes may value political recognition by the Church. In the context of disputed sovereignty, diplomatic recognition may have high exchange value and low cost for multiple diplomatic actors, particularly in the case of negotiations modeled as polycentric games.
— Foresight. Rather than being a relic of a Cold War past, it is possible that the nonliberal “political theology” of the Chinese regime is a harbinger of a more frequent tension between the Church and newly religiously assertive civil powers. While a future exchange of agreements between sovereign powers may no longer be between the Church and Catholic political agents, earlier historical examples of diplomacy between the Church and civil powers may hold the key for understanding an agreement between the Vatican and China. By the same token, such an agreement may reflect a calculation about the growing tendency toward religiously assertive civil powers (for example, the Philippine government under Duterte). Paradoxically, concessions regarding episcopal appointments may reflect a return to jurisprudence from before the secular abandonment of episcopal appointments to ecclesiastical interest.
Our aims in advancing these conjectures are limited. We don’t know, or even assert, that the foregoing claims about the Vatican’s posture vis-à-vis China are true. Certianly, none of this is to claim that the Vatican’s emergent China policy is just clearly correct, in a first-order sense. Our point is that there are ample grounds to believe that the policy is entirely rational, given nonideal circumstances. We don’t know whether it is ultimately right, but we also doubt that the neoconservative critics know either, and its rightness or wrongness will ultimately be determined by unpredictable circumstances. In this sort of uncertain environment, reliance on strategies of low-information rationality suggests that, for Catholics, a broad measure of deference to Vatican decisions is sensible.
St. Francis Xavier, pray for us. 圣方济各 沙忽略, 请为我们祈祷。
Public Discourse has published my colleague Prof. Vincent Phillip Munoz's recent remarks at the U.S. Department of Justice Forum on Free Speech in Higher Education. Well worth a read. Here's a bit:
I am sometimes asked whether academic freedom exists at a Catholic university such as Notre Dame. I have never been at a university that offers more academic freedom, and I have been a faculty member at a large state research university and a small private elite liberal arts college. As a Catholic university, Notre Dame is committed to the unity of faith and reason. Indeed, because God is understood to be the author of all that is true, the university is confident in and can offer reasons for its commitment to seeking the truth.
Universities are either committed to truth-seeking through reasoned inquiry, or they are committed to something else. If they are committed to truth-seeking, free inquiry and free speech will be safeguarded. If they are committed to something else—be it social change or overcoming historical oppression or job training or whatever—that something else will inevitably trump free inquiry and free speech if and when it requires it. It’s not that complicated.
Wednesday, September 19, 2018
Here, at Public Discourse. A bit:
[T]he Constitution is at the center of American political and legal life, so properly interpreting the Constitution is of crucial importance. Americans of all stripes invoke the Constitution to support their differing legal and political positions. Originalism’s capacity to provide a coherent method to answer these fundamental constitutional questions depends, as I described in my article, on whether it has successfully navigated its intellectual transformation.
Thursday, September 13, 2018
Thanks to Richard Reinsch, at Law & Liberty, for including this short piece of mine in today's symposium on "the Catholic Church's crisis." A bit:
. . . [I] is clear, and it is crucial, that – in accord with due process, of course, and in keeping with important safeguards like statutes of limitations – alleged crimes be investigated, that criminal offenses be punished, that victims are compensated. This is true for bishops and clergy no less than it is for politicians and police or for laymen and citizens. It seems no less clear and crucial that not only repentance and penance but also reform and a reckoning are needed in the Church leadership, structures, and processes.
At the same time, calls for “accountability” should reflect careful thinking about the questions “accountable to whom?” There are matters over which secular political authorities and public officials have no power or say. . . .
Tuesday, September 11, 2018
Longtime MOJ readers know that a number of us are big fans of Shusaku Endo's (complicated, haunting, fascinating) novel, "Silence." I was glad to see it featured the other day on one of my favorite podcasts, John Miller's "Great Books." Check it out. (I was intrigued by Miller's guest's "take" on the novel, which was clearly a product of her Protestant lenses. I wonder if other Catholic readers will have a similar impression.)
Here's the press release. Nutshell:
Dismissal of a Catholic doctor from a managerial position by a Catholic hospital due
to his remarriage after a divorce may constitute unlawful discrimination on grounds
The requirement that a Catholic doctor in a managerial position respect the Catholic Church’s
notion of marriage as sacred and indissoluble does not appear to be a genuine, legitimate and
justified occupational requirement, which is nevertheless a matter for the German Federal Labour
Court to determine in the present case.
However, it is for the Bundesarbeitsgericht to determine whether IR has established that, in the light of the
circumstances of the case, there is a probable and substantial risk that its ethos or its right
of autonomy will be undermined.
Monday, September 10, 2018
Over at Distinctly Catholic, Michael Sean Winters links to a funny bit at The Onion and then tosses a bit of off-color snark at MOJ, and a post of mine, regarding my view (expressed zillions of time here) that "it is not the case that the Church's social teachings -- including her teachings on the dignity of work and the rights of workers -- require, or even recommend, support for public-sector unionism (as it exists today, in today's legal and regulatory context)."
Contrary to what Winters says, I have never said that "the church's teaching that workers have a right to organize does not extend to public sector workers because the church never specifically said it so extends." What comes before and after "because" in Winters's sentence is wrong. I think that all workers have a right to "organize" (and, as it happens, the Church has long so taught). I do believe that it is a distortion of the Church's social teachings to think that those teachings "require, or even recommend, support for public-sector unionism (as it exists today, in today's legal and regulatory context)." And, I think this "because" not because public-sector unionism wasn't mentioned in Rerum Novarum, but because public-sector unionism (as it exists today, in today's legal and regulatory context) is, all things considered, contrary to the common good.
Winters ends his little jab with what I suppose is intended to be a funny comparison but it seemed more than a little inappropriate (not to mention inapt) to me. Readers should, of course, decide for themselves.
Thursday, September 6, 2018
Thanks to the merry band of happy religious-freedom warriors at the Becket Fund! Full story here. (I was honored to co-file an amicus brief with our own Tom Berg and others . . .).
Recent news and events have many religious-freedom defenders reeling and angry (understandably). But the "freedom of the Church" proposal has never rested on a premise or claim that the Church's leaders, ministers, and members do not sometimes do awful things.