Monday, July 25, 2016
In light of arguments by Robby George and others that we are in a neo-Gnostic age, Dov Fox and Alex Stein have posted a fascinating new paper, Dualism and Doctrine. Here's the abstract:
What kinds of harm among those that tortfeasors inflict are worthy of compensation? Which forms of self-incriminating evidence are privileged against government compulsion? What sorts of facts constitute a criminal defendant’s intent? Existing law pins the answer to all these questions on whether the injury, facts, or evidence at stake are “mental” or “physical.” This key assumption that operations of the mind are meaningfully distinct from those of the body animates fundamental rules in our law.
A tort victim cannot recover for mental harm on its own because the law presumes that he is able to unfeel any suffering arising from his mind, by contrast to his bodily injuries over which he exercises no control. The Fifth Amendment forbids the government from forcing a suspect to reveal self-incriminating thoughts as a purportedly more egregious form of compulsion than is compelling no less incriminating evidence that comes from his body. Criminal law treats intentionality as a function of a defendant’s thoughts altogether separate from the bodily movements that they drive into action.
This essay critically examines the entrenchment of mind-body dualism in the Supreme Court doctrines of harm, compulsion, and intentionality. It uses novel insights from neuroscience, psychology, and psychiatry to expose dualism as empirically flawed and conceptually bankrupt. We demonstrate how the fiction of dualism distorts the law and why the most plausible reasons for dualism’s persistence cannot save it. We introduce an integrationist model of human action and experience that spells out the conditions under which to uproot dualism’s pernicious influence within our legal system.
Sunday, July 10, 2016
I viewed last week's horrific violence through the lens of John Inazu's important new book, Confident Pluralism, in which he affirms the importance of certain constitutional commitments (focusing on the right of association and the public forum and funding requirements) and encourages the "civic aspirations" of tolerance, humility and patience. He explains:
Tolerance is the recognition that people are for the most part free to pursue their beliefs and practices, even those beliefs and practices we find morally objectionable. Humility takes the further step of recognizing that others will sometimes find our beliefs and practices morally objectionable, and that we can't always "prove" that we are right and they are wrong. Patience points toward restraint, persistence, and endurance in our interactions across difference.
Judging from my social media feeds and a few face-to-face conversations, the divergence in our perspectives on last week's events is nearly overwhelming. Even among those who are on the front lines protesting police actions, for example, there can be a substantial disconnect. In the Twin Cities, our local #BlackLivesMatter leaders -- already viewed as radical and counterproductive by many whites -- are under pressure for not being radical enough, accused of having embraced "white neoliberal" principles of activism (namely pacifism). That pressure was on display last night, as protests here turned violent. I imagine that many participants on both sides of the debate about police conduct toward blacks would not only place less importance on tolerance, humility and patience than John does, but they might deem those aspirations as unrecognizable given the stakes and nature of the debate.
John has been closer to the post-Ferguson conversations than I have, so I know that his analysis incorporates the current reality of race in our country. From my limited engagement with his framework, three questions present themselves:
1) Under what circumstances does the harm principle serve as a boundary on the aspiration to tolerance? E.g., #BLM protestors may recognize that many of their fellow citizens do not share their belief that blacks are often treated unfairly and with unjustified violence by police, but that recognition is hardly a first step toward tolerance of that disbelief. (A similar point could be made regarding disagreement re abortion.)
2) To what extent is a mutual willingness to learn relevant facts a precondition to humility as a worthy aspiration? When certain beliefs are subject to empirical verification, does that create any sort of burden of inquiry before humility is relevant? Do I need to exercise humility toward my fellow citizen who contends that the Earth is flat?
3) Are there historical conditions under which "patience" is better viewed as a civic vice than as a civic virtue?
Thursday, July 7, 2016
In the painful shadow of the Philando Castile and Alton Sterling shootings, I offer an essay over at America on why Catholic universities should be deeply engaged in today's racial justice struggle. Here's an excerpt:
Today’s university jeopardizes its ability to speak to today’s protestors when it departs from its mission of forming the person. Rising student debt and questionable employment outcomes have caused many families to approach college through a strictly economic lens. In addition there is increasing concern that the identification and cultivation of particular virtues represents a kind of moral paternalism. As a result more aspirational educational goals are pushed to the margins. The hollowing out of the university mission makes it difficult to engage meaningfully with today’s campus protesters. After all, they are not demanding better job training; they are demanding a more inclusive community. This is a deeply moral demand.
The Catholic vision of education has always been about formation—a relational endeavor that is best undertaken in communities marked by dialogue, interpersonal modeling and opportunities for reflection and growth. Knowledge has more than instrumental value, and the student experience aims at moral growth, not just professional preparation. This foundational orientation does not make answers to deep and difficult questions about diversity and inclusion easy, but it means that the deep and difficult questions are not distractions from the educational mission; they are why the church operates universities in the first place.
Saturday, July 2, 2016
The current Chronicle Review includes an interesting article by Hillsdale prof D.G. Hart suggesting that the widespread support of Donald Trump among "evangelicals" reveals longstanding sloppiness in political scientists' reliance on "evangelicals" as a relevant category. He notes that the broad category ignores the extent to which local congregations are isolated from each other because of deep religious differences:
[I]f evangelical identity was so thin that it could not overcome realities that prevented Pentecostals from worshiping with Presbyterians, how useful was it to explain the way believers participated in electoral politics? Both a Baptist and a Methodist might vote for the same Republican presidential candidate, but was that the product of religion? Too much of the literature on evangelicals and politics said, 'Yes.'
Hart suggests moving away from evangelicalism as a category and looking instead to church membership, noting data showing that Protestants who attend church regularly are much less likely to vote for Trump than are people who self-identify as "born again." More broadly, he wonders whether scholars "should simply take religion less seriously" in explaining a person's ideas or actions. He cites Fintan O'Toole's work arguing that religion was not the chief factor alienating Protestants and Catholics in Northern Ireland.
There has been much hand-wringing over the breakdown of commitment to the core principles that have guided evangelicals' political engagement. Maybe that commitment was more illusory than we thought, and maybe the perception of guiding principles reflects a past convergence of motivations that had less to do with faith than previously assumed. In other words, maybe "evangelicals" look more like "Catholics?"
Thursday, June 30, 2016
Most readers of MoJ are aware, I trust, that law schools have encountered a bit of rough sledding over the past several years. The New York Times recently published (yet another) feature on law school troubles, this time focusing on Valparaiso. The story included -- along with some questionable assertions -- profiles of struggling law grads that warrant serious reflection.
One other aspect of the story that cannot go unexplored is the headline -- "An expensive law degree and no place to use it." The suggestion that law degrees are "expensive" relative to the earning power they bring is a different story that I'll leave for the economists to sort out, though I agree that law schools need to be -- and are being -- more cognizant of cost than they were in the past. I'm more interested in the charge that many law grads have "no place to use" their degrees.
If, as the article asserts, the market for new lawyers is "saturated" -- a proposition that is highly contingent on geography, even when it comes to traditional JD jobs -- we need to think about the assumptions we make as to who can best utilize a legal education and how. What value do we bring, and to whom? For Catholic law schools, this is not just a matter of responding to market pressure, but of living out our mission. As John Paul II reminded Catholic intellectuals (and as Cardinal George later reminded Catholic university professors):
You too are solidly involved in a prophetical task of forming sensitive consciences capable of saying no to death, to hatred, to violence, to terror, to error, to evil, to degradation, but saying yes to the good, to the beautiful, to truth, to justice, to responsibility, to life, to peace, to love. You must take on your responsibility consciously. Your contribution in this field is a conspicuous and precious one. The young who have contact with you . . . let all these be aided by you to enter sagely and rationally into a vision of life in human society which promotes the common good of all.
Or as John Paul II explained in Ex Corde Ecclesiae, the Catholic university “assists each of its members in achieving wholeness as human persons.”
This warrants a much larger conversation, but for purposes of a blog post, I'll emphasize three implications:
1) The mission of Catholic legal education, and the strength of the particular law school communities that can be formed by that mission, position Catholic law schools to prepare students to thrive in the relationships that will distinguish the lawyers who achieve professional success in an increasingly commodified and routinized market for legal services.
2) Catholic law schools that integrate the analytical rigor of common law training with insights from Catholic social teaching can equip students -- especially international students -- for positions of influence that require more nuance than a categorical embrace of unfettered capitalism or socialism; and
3) Access to justice should be a rallying cry that finds fertile ground among the stakeholders of Catholic law schools, drawing support for scholarships and post-graduate fellowships aimed at addressing the need for lawyers among the poor and middle class, especially in small towns and rural areas across the country. To the extent that the market for lawyers has been "saturated" in some areas of the country, that's because the business model does not function in a way that permits legal needs to be met. Catholic law schools should be part of the solution.
In an increasingly regulated world that cries out for creative problem solving, there should always be a "place to use" a law degree in a way that provides a livelihood and advances the common good, and Catholic law schools should be leading the way forward.
I have argued against anti-Sharia laws in the U.S., but I have steered clear of debates about Sharia as applied in Muslim-majority countries. In light of outrageous examples of how Sharia is interpreted and enforced in some areas of the world today, fears about Sharia are a leading source of anti-Muslim sentiment. To the extent that Muslims favor Sharia, it is taken as evidence of Islam’s incompatibility with the premises of the American political system. But what if today’s Sharia-based governments are themselves misguided interpretations of Muslim history – not just in terms of the law’s content, but in terms of the legal order underlying the law’s application?
Asifa Quraishi-Landes has published her lecture, Islamic Constitutionalism: Not Secular. Not Theocratic. Not Impossible. She traces the “separation of legal authority in pre-modern Muslim lands that has all but disappeared today” between “siyasa, created by the rulers, and fiqh, created by the fiqh scholars.” As Muslim-majority countries emerged from colonial rule, they maintained a centralized, monistic legal order:
This colonialist mutation of legal-political systems in Muslim-majority lands has, sadly and ironically, created theocratic-leaning Muslim governments. But it is not the integration of religion and state that has caused these new Islamic theocracies. Rather, it is the integration of religion with legal monism that has created this phenomenon. . . . [W]ith independence in the twentieth century, many Muslims organized themselves into social and political organizations (often called “Islamism”) to remedy the wound of the colonialist purging of sharia in Muslim lands. But these Islamists operated with a rather stunning amnesia. Rather than looking to Islamic history for alternative arrangements of legal and political authority, they instead took the nation-state structure inherited from their European colonizers for granted, and simply concentrated their efforts on making that central state “Islamic.” . . . .
Muslim history shows that theocracy is not the inevitable result of every religious government, and secularism is not the only way to solve religious differences. For religious Muslims, it bases the legitimacy of state action directly on sharia principles. For secularists, it requires state lawmaking to be justified on something other than religious pedigree. It does this by articulating a model of government in which religious laws (fiqh) are only one of a two-part sharia-as-rule-of-law system, the other being state lawmaking based on human determinations of the public good (maslaha). This bifurcated system of law provides a way for a Muslim government to formally recognize fiqh rules without imposing them on those who do not want it.
The whole paper is worth reading.
Wednesday, June 29, 2016
I have always suspected that the movie "Wall-E" was a more accurate glimpse of the future than I care to admit -- how do we get our minds around a world in which technology has made systemic underemployment a permanent and growing reality? An experiment in Oakland is hoping to begin providing some answers from a public policy standpoint. For MoJ purposes, how does and should the Church engage this (apparent) social trajectory? The Church has taught the "value of work not only because it is always something that belongs to the person but also because of its nature as something necessary." (Compendium of the Social Doctrine of the Church para. 287) But how do we honor its necessity to human identity and meaning when it is no longer necessary to the economic functioning of society? Our political leaders are unlikely to provide much guidance in the near term -- bringing jobs back to the U.S. by negotiating "great deals" -- is not a long-term answer. In addition to the other grounds on which the Church has resisted certain technological innovations, should we also resist innovation that defies the commitment to work as a necessary expression of the human person's dignity? I think the answer to that is no (or we should have been protesting long before now), but here's the unavoidable question that follows: what is the role of work in an authentic anthropology of the human person when work is no longer economically necessary for a large portion of the population? If these questions have already been explored through the lens of Catholic intellectual tradition, I'd welcome pointers on where to find those conversations.
Wednesday, June 22, 2016
Yesterday Christian leaders gathered in New York at Donald Trump's behest. Aside from bizarre elements (e.g., Trump wondering whether he could bring us back to the day when attending Sunday School was "automatic"), the attraction of many Christian leaders and laity to Trump based on their understandable longing for safety in a dangerous world, particularly when the price of that safety is the abandonment of certain Christian values and principles, stands as a stark reminder that golden calves come in many forms.
Shortly after the Orlando massacre, I noted that Trump retweeted someone's undoubtedly heartfelt message imploring the candidate to "please make us safe." This simple retweet, to me, captures one (of many) disturbing element(s) of Trump's candidacy. He is inhabiting the biblical role of Aaron, playing on the people's fears and anxieties and offering a golden calf for their worship -- in this case, the idol is our own safety.
Though the dangers take new forms, we have lived in a dangerous world since the Fall. Political candidates can and should offer new ideas to address those dangers, but unrealistic promises that safety is achievable should be met with skepticism. A candidate's promise of safety rises to the idolatrous level, in my view, when the prescribed means of guaranteeing safety require us to reject the God-inspired lens through which we are called to view the world. Trump's statements and policy proposals regarding Muslims and Mexican immigrants, for example, are in significant tension with the Gospel's demand for solidarity and recognition of human dignity.
I do not mean to suggest that debates about stricter immigration policies or the consideration of religion's role in terrorism are categorically beyond the pale. The more obvious problem comes from stigmatizing groups -- as Trump frequently does -- instead of engaging ideas -- as Trump appears to avoid whenever possible.
On this front, John Inazu's important book, "Confident Pluralism," is instructive, especially chapter six. Building on insights from Erving Goffman and Lee Bollinger, John explains why confident pluralism "rejects stigmatizing others through our speech," but does require us "to distinguish between stigmatizing and causing offense."
Trump suggests that safety is achievable if we reject "political correctness" and demonstrate the courage to do what needs to be done to root out the dangerous "others" in our midst. It is an illusory promise of safety through a quite real imposition of stigma, and we should reject both the means and the ends. God calls us to faithfulness, not to safety.
Wednesday, September 16, 2015
For those who have not grown weary of the debate over Kim Davis, I have an op-ed on the topic in today's Minneapolis Star Tribune. I consider myself a strong supporter of the liberty of conscience, but I am troubled by her actions. Here's an excerpt:
I believe that our debates over conscience should focus on whether accommodating the claim of conscience would jeopardize access to a good or a service deemed essential (by the state) for full participation in society. Because of the importance of religious liberty and the unavoidable messiness of living in a world of moral conflict, I have objected when the state’s disregard of a provider’s claim of conscience appears to be animated by a desire to avoid potential affronts to a customer’s sense of dignity — for example, when the state penalizes a photo agency for refusing on religious grounds to shoot a same-sex wedding even though many other competent photographers are available. While I object to dignity-driven state prohibitions in the market for goods and services, an employer could legitimately decide that an employee’s conscience-driven refusal of service sends a message inconsistent with the moral claims embedded in the employer’s marketplace identity.
By the same token, the government should have some discretion to decide that its public officials must execute the full scope of the law and serve all members of the public legally entitled to a good or service. If the state of Kentucky wants to create an accommodation for Davis that still maintains full access to marriage for same-sex couples, I wouldn’t object. The problem is empowering Davis to decide on her own whether her denial of access is consistent with the public norms that the state wants to champion. If we value a vibrant moral marketplace, institutional actors, not just individual employees, must have a degree of discretion to shape their identities and messages within the marketplace. The government should have similar discretion.
Tuesday, September 8, 2015
Last week St. Thomas Law School's Murphy Institute co-hosted a conference with the Von Hugel Institute at St. Edmund's College of Cambridge University. At the conference dinner, I offered brief remarks on why such partnerships are so important:
My colleagues and I are grateful for the hospitality you’ve shown us, and for the time and effort you’ve invested in helping us organize this conference on the religious and moral dimensions of questions regarding the patentability of life products and processes. It is not often I feel almost apologetic explaining that we represent a 130-year old university, but by Cambridge standards, I feel obliged to reassure you that we are really here for the long haul and are not just a flash in the pan. This collaboration between our institutions is well-suited to the test of time for reasons that warrant at least a few moments of reflection.
The University of St. Thomas School of Law has a mission statement that dedicates us to “the integration of faith and reason in the search for truth through a focus on morality and social justice.” One of the many ways we try to live out that mission is through the work of the Terrence J. Murphy Institute for Catholic Thought, Law, and Public Policy. The Murphy Institute’s work, in turn, is greatly enhanced through institutional partnerships, such as the one we are building with the Von Hugel Institute here at St. Edmund’s College at Cambridge University. As a preface for my toast, I’d like to articulate three reasons why this partnership is so crucial to our work.
First, this partnership will produce a broader and richer conversation. As a gathered assembly of law professors, theologians, philosophers, practicing attorneys, and policy advocates, I hope we can agree that conversations matter; the conversation has intrinsic value that is not contingent on any particular outcome or lack thereof. Both the Murphy and Von Hugel Institutes are committed to bringing insights from the Catholic intellectual tradition into some of our most pressing legal and policy conversations – conversations where, too often, such insights are raised only on the margins, if acknowledged at all. By partnering, we can widen the circle of participation, expand our platform, and reach new venues.
Second, this partnership will produce insights of greater scholarly depth and real-world impact. The concepts we explore – human dignity, the preferential option for the poor, the universal destination of goods, solidarity, and subsidiarity, among many others – can fruitfully be engaged by individual scholars on their own initiative. But these concepts are sufficiently important to warrant sustained and serious engagement over generations of scholars – a quality of engagement that can best be facilitated by institutions. By partnering, we can leverage our distinctive strengths, pool resources, and tap into new circles of expertise and influence.
Third, this partnership can be a source of mutual encouragement, support and even accountability as we work to stay faithful to our missions. Higher education is not immune from the general pressure in our society to produce measurable outcomes in the most efficient way possible. There’s nothing inherently wrong with assessment or efficiency, but we need to be careful that this narrowing focus does not allow technical questions of “how” to obscure deeper questions of “why.” As we’ve already seen at this conference, our mission is the impetus for big questions. What does it mean for law if all creation is a gift? What is the nature of the human person, and why should the political community care? Is human dignity an infinitely malleable concept, or does it have an unshakeable core that can shed light on our most intractable conflicts and confusions? These are just a few of the questions that may fall out of favor within the surrounding academic and policy-making circles, but that we must continue to revisit if we are faithful to our founding visions.
Human beings have an infinite capacity to empower our insecurities to distract ourselves from the pursuit of truth. For academics, the recurring temptation is to chase prestige. We pursue cleverness for the sake of appearing clever. We strive to be the first to proclaim an idea, not because the idea is worth proclaiming, but because novelty can too often be invoked as a proxy for insight. Our mission is too important to let this happen. And so, if you raise your glasses with me, I’d like to toast the new partnership between the Murphy and Von Hugel Institutes; my hope is that the partnership will extend over many years and be marked by a collaborative, thoughtful, and bold stewardship of questions that may otherwise recede from view.