Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Sunday, February 29, 2004

Review: Michael Novak, The Spirit of Democratic Capitalism

Michael Novak is probably the foremost Christian thinker on the economy. Any of his books reward study, but The Spirit of Democratic Capitalism is undoubtedly his magnum opus. In this classic text, which has now been updated and revised, Novak joins issue with theologians like Paul Tillich who contend that "any serious Christian must be a socialist." It appeared in a samizdat (underground) edition in Poland during the 1980s and had an obvious impact on the Solidarity movement. Its reasoned defense of democratic capitalism as being grounded in the humane values of the Judeo-Christian tradition also helped give a moral center to the neo-conservative movement.

In Democratic Capitalism, Novak addresses the consistency of capitalism with church teachings on wealth. Novak recognizes that church teaching has been hostile to capitalism, as with much else of modernity. Yet, Novak contends that arguments against capitalism serve mainly to give aid and comfort to the Leviathan state. Indeed, Novak persuasively (if controversially) attributes Christian opposition to capitalism to two main sources: ignorance and antique world views. Church leaders and theologians tend to have either a pre-capitalist or a frankly socialist set of ideals about political economy.

To be clear, Novak does not believe that faith should be subordinated to capitalism. To the contrary, he recognizes that the divine plan was that we should enjoy the fruits of the earth and of our own industry. He simply contends that capitalism is the best way Fallen humans have yet devised to obey the Biblical command that we are to be stewards of God's world. Novak never loses sight of the basic proposition that it was equally the divine plan that God should be worshiped, obeyed, and feared. The fear of the Lord, he would argue, is the beginning of capitalist wisdom, just as it is of any other kind of wisdom.

Not surprisingly, therefore, Novak's analysis has begun to impact the way the church - or at least a segment of it - thinks about capitalism. Granted, our fearless leader Mark Sargent thinks Novak is an outlier in CST. Granted also that some people have gone too far in claiming that Novak has prompted Pope John Paul II to embrace free market capitalism. Having said that, however, it is hard to deny that John Paul II’s encyclicals temper much of the hostility to capitalism expressed in some CST sources (such as the US Bishops' pastoral letter on economic justice). In my view, rather then embracing free market capitalism, what John Paul II has done is too create a big tent in which those of us who hold to the ideal of free markets, a free people, and a free Church can find a home. In my view, much of the credit for that development must go to Michael Novak and this classic text.

February 29, 2004 | Permalink | TrackBack (0)

Thursday, February 26, 2004

Laicism and Scarves

I wanted to jump in on Paolo and Rob's posts. I think the best parallel in the United States for what is going on in France regarding Muslim headscarves is our debate over the issue of Spanish language education in the public schools. For many Americans, the idea of the Spanish language competing with English in the public arena is a huge threat to American unity. English is one of the few things Americans have as a true unifying force and immigrants who choose to speak only Spanish (think Miami or Los Angeles), or who want to receive a bilingual education, generate a great deal of controversy. Since 1908, France has relied on laicism to manage contetious divisions within French culture. Until recently, that debate was dominated by issues that can be traced back to the role of the Catholic Church in French society. Laicism, however, is not well-equipped to handle the presence of a huge Muslim minority population, many of whom are now 3rd generation, though often marginalized, French citizens.

George Weigel thinks that France's resistance to war with Iraq is to some extent an "appeasement" of its Arab minority and more evidence of a general European unwillingness to "get tough" with threats to the international order, at least as those threats are defined by the United States. He seems to forget that the "Arabs" at issue in France are for the most part French citizens. and the nation is stuggling with the difficulty of integrating them in a way that is consistent with its commitment to its republican ideals and at the same time respects their right to free practice of their Muslim faith. A marginalized minority is easily radicalized. The Chirac government realizes what is at stake, and it has been scrambling to push "affirmative action" style programs to speed the integration of North Africans into mainstream French society.

The head scarf ban may seem like overkill to us, but radical Islam does present a real threat to France's stability. Paolo raised a very significant question at the end of his post. Must the "West" face the possibility that a society of unfettered religious freedom is unworkable? I won't attempt to answer that question here, but religious freedom understood in a cultural context informed by Christian humanism contains certain assumptions that not everyone shares.

February 26, 2004 | Permalink | TrackBack (0)

Wednesday, February 25, 2004

Future of Marriage conference

As was mentioned here a few days ago, the Notre Dame Journal of Law, Ethics, and Public Policy sponsored a symposium tonight on "The Future of Marriage." It was an excellent event, and I am proud of the Notre Dame Law School students who organized it. The panel featured speakers who represented a genuine diversity of opinion, the speakers were courteous to each other and to those members of the audience who asked questions, and the speakers were careful not to play to the crowd for easy applause. I was particuarly impressed at how Professor Andrew Koppelman -- a longtime proponent for gay rights and same-sex marriage -- made his case forcefully without castigating opponents' views as mere bigotry (and, indeed, he was critical of some audience members' efforts to do so). He was eminently fair, charitable, and hard-hitting all at once.

As I mentioned in my earlier post, I found Professor Paul Griffiths' argument particularly provocative. In a nutshell, Griffiths argued that (a) the dogmatic teaching of the Catholic Church about marriage and sexuality is true; (b) but America is a post-Christian, "pagan" culture, in which the practice of "marriage" bears no resemblance to that teaching; (c) indeed, even the practice of marriage among Catholics bears little resemblance to that teaching; (d) therefore, the Church ought to take steps to disengage Christian marriage entirely from American civil marriage; (e) this would enable the Church to re-discover, and re-build, authentic Christian marriage; (f) which would, in turn, serve as a powerful witness to our "pagan" culture when -- we can hope -- that culture comes to believe that it has missed the boat.

I need to think more about this argument. I worry that it underestimates both the "pedagogical" function of civil law and the asserted connections between Christian marriage, properly understood, and the common good. Still, the argument requires serious consideration. Congratulations, again, to the Journal for arranging a discussion that -- academic self-congratulation about "intellectual diversity" notwithstanding -- too rarely occurs in law schools today.


February 25, 2004 | Permalink | TrackBack (0)

French Laicism and Radical Islam (cont'd)

Yesterday I led a faculty-student forum on the French ban, and I was mildly surprised at the extent to which the students, religious and non-religious alike, took offense at the ban. (Those who defended it were outnumbered in the order of 10 to 1.) When it comes to discussing objective visions of morality, students' deeply entrenched devotion to value pluralism is a nearly insurmountable obstacle. But when it comes to issues of religious liberty, the students' worldview provides a formidable defense.

One obvious flaw in the French government's rationale was jumped on by students. Concern for religious minorities, especially Jewish students, is hardly well-served by seeking to make those students, along with the perceived instigators, invisible. Rather than embarking on an aggressive program of education or enforcement of the criminal law, France seems to be pretending that covering up religious identity will make it all go away. Obviously, religion-based persecution thrives even in the absence of religious garb. (As one student pointed out, when buses of Jewish students are pelted with rocks in Marseilles, it is highly doubtful that their yarmulkes are visible.)

In direct response to Paolo's post below, the ideology of certain Islamic extremists does not change my reaction. Such threats are best addressed through other measures. After all, if religious identity is allowed to flourish only in the absence of the majority's perception of a religion-driven threat, there's not much left to it. This goes back to my misgivings about hitching a particular conception of the moral anthropology to majority rule (below). It's entirely foreseeable that some jurisdictions would perceive certain Christian fundamentalist or Catholic groups as divisive and threatening to the social order, just as immigrant Muslims are perceived as threats in France today. If we justify the erasure of religious identity in France today, what is the limiting principle to foreclose its expansion tomorrow?


February 25, 2004 in Vischer, Rob | Permalink | TrackBack (0)

The Supreme Court disappoints

The Court has ruled, 7-2, in Locke v. Davey, that the State of Washington may deny scholarship funds to otherwise eligible college students if those students declare a major in theology. The opinion is available here. Professor Eugene Volokh has a short, and correct, critique up at his blog. Particularly disappointing was the brush-off given by the Court to the anti-Catholicism that surrounded, animated, and motivated the Washington provisions at issue. (For more, see the recent work of, for example, John McGreevy and Philip Hamburger). My article (link on the right) on the "Theology of the Blaine Amendments" goes into more detail about the case. In a nutshell, I believe that the Court has (a) uncritically embraced a sectarian version of "separationism" and (b) has authorized discrimination by state actors against those who take their religious faith seriously. I welcome other reactions, though.


February 25, 2004 | Permalink | TrackBack (2)

French Laicism and Radical Islam

The recent French efforts to ban the wearing of all "ostentatious" religious symbols (but especially Muslim headscarves) in schools has attracted criticism from Catholics, including the French bishops and the Pope, and it is tempting to take it for granted that it is another sorry chapter in the the story of what George Weigel recently referred to in an excellent First Things article as "Europe's Problem -- and Ours." But here's a discussion by Fr. Samir Khalil Samir, a Jesuit priest and influential Islamic studies scholar, that complicates the question a bit. Fr. Samir notes that "In reality, for those who are familiar with the Muslim world and its facets, today’s problem is not freedom of conscience. It is a socio-political problem. What kind of society is being sought after? There is an 'Islamicist' plan underway, which aims at visibly affirming Islamic life as different in all aspects... Whoever is opposed to this plan is intolerant and racist, as he does not respect the religions convictions of Muslims." A fuller discussion of the issue with Samir (in Italian) appeared recently in Avvenire, the newspaper ofthe Italian bishops, and another interesting discussion comes from Sandro Magister's regular column (which is very often worth reading, by the way). I do not know enough about the dynamics of Islam in Europe to judge whether Samir's assessment is sound, but it does give one pause, especially in light of yesterday's Al-Queda threat that the headscarf issue in France will be a rallying point for their organization and launching of yet more inhuman violence and hatred. I'd be interested in whether my co-bloggers have any views about the proposed French law and, more broadly, about whether the presence of violent Islamicist political ideology ought to qualify in any way the basic approach to religious freedom that you would otherwise favor and advance.

February 25, 2004 | Permalink | TrackBack (0)

Tuesday, February 24, 2004

Federal Marriage Amendment

This morning, President Bush announced his support for an amendment to the United States Constitution "defining and protecting marriage as a union of man and woman as husband and wife. The amendment should fully protect marriage, while leaving the state legislatures free to make their own choices in defining legal arrangements other than marriage."

Over at his blog, Yale Law School's Professor Jack Balkin notes that the President is "attempting to shape the issue in terms of what states may officially term 'marriage,' as opposed to preventing states from effectively giving same sex couples the bundle of rights enjoyed by married couples. This means that he cannot endorse the proposed FMA in its current form, because, as I have noted previously, it would also prevent states from passing civil unions or domestic partnership legislation. His strategy is to make the fight about semantics and symbolism rather than substance."

It is not clear to me that Professor Balkin's interpretation of the proposed FMA (the "Musgrave Amendment") is correct. (Here's the text). In any event, the President's action raises (again) the question posed by Rob a few days ago (and many others): In light of the Church's social teaching, but remembering also the fact of pluralism, how ought we to regard an amendment of the kind endorsed today by the President? What about this language (taken from the President's statement):

"Marriage cannot be severed from its cultural, religious and natural roots without weakening the good influence of society. Government, by recognizing and protecting marriage, serves the interests of all. . . .

America is a free society, which limits the role of government in the lives of our citizens. This commitment of freedom, however, does not require the redefinition of one of our most basic social institutions. Our government should respect every person, and protect the institution of marriage. There is no contradiction between these responsibilities. We should also conduct this difficult debate in a manner worthy of our country, without bitterness or anger."

Can we, for example, take seriously the claim that American governments generally act so as to "protect the institution of marriage"? Is it true that a "commitment [to] freedom . . . does not require the redefinition of one of our most basic social institutions," if it is the case that that "institution" -- as it is generally defined in positive law -- is difficult to square with our generally atomistic morality and its attendant understanding of "freedom"? Is Professor Griffiths right to observe (see below) that "in cases of this sort, public argument cannot resolve disagreement. This is not to say that there is no truth of the matter, or that there are no good arguments about it. It is only to say what is also true, which is that public argument will not succeed in producing consensus in this matter. To think that it could is to overestimate its capacities. Catholics should not, therefore, advocate the embodiment of the orthodox view in U.S. marriage law because we think there are persuasive public arguments about the question. There aren't"?


February 24, 2004 | Permalink | TrackBack (0)

Monday, February 23, 2004

Conference on Religious Values and Corporate Decision-Making

Earlier today I attended Fordham Law School’s Conference on Religious Values and Corporate Decision Making, put together by co-blogger Amy Uelman. The first panel was an all-star lineup of Russ Pearce, Brad Wendel, Steven Resnicoff, and our own Mark Sargent. They tackled the question, “Does Corporate Decision-Making Allow Room for Religious Values?”

A couple of themes might be of special interest to readers of this weblog:

First, Dean Sargent looked at lawyers’ moral complicity in the corporate scandals of recent times, emphasizing that the moral consciousness of lawyers must be understood sociologically. Building on the thesis of Robert Jackall's Moral Mazes, he argued that the social context of a corporation drives lawyers (and others) to pursue their own self-interest through the prevailing rules of the game, bracketing their own moral codes in the process. The dominant ethos of the corporation is pragmatism, with questions of right and wrong relegated to the sidelines, and, I think Mark would conclude, this ethos was responsible for the scandals much more than the lack of a personal moral code on the part of the primary corporate decision-makers.

Second, Professor Wendel expressed misgivings about the injection of religious values into corporate decision-making, taking a Rawlsian approach to the corporate context. Like the state, he identifies the corporation as an institution with a pressing need for coordinated action, and thus it must justify its action through widely agreeable reasoning. In response to (my) questioning, though, he clarified that, to the extent religious values are brought to bear on corporate decision-making in a transparent manner, there is no danger of coercion, as the investor can take her money elsewhere. In this regard, he would not see a problem with the explicit and open embrace of religious values by corporate decision-makers. Since Wendel seems to have been the designated naysayer on the panel, perhaps the gap between those who see a role for religious values in the corporation and those who do not is not so wide.

Or perhaps those who object to religion's entry into the corporate sphere see no reason to participate in a conference devoted to such a topic. I'm not familiar enough with the area to know what their argument would be. Provided that religious values are brought to bear in a transparent fashion, what is the objection to their entry? I can see why religious values may be inefficient or otherwise ill-suited to the corporate context, but is there any good-faith basis for precluding them categorically?


February 23, 2004 in Vischer, Rob | Permalink | TrackBack (0)

UK Bishops on Catholicism and Taxes

Amy Welborn has posted, at her excellent blog, a blurb about a "40 page booklet" issued by the "Catholic Church in Wales and England" called "Taxation for the Common Good." Here's a link to an article about the booklet. The article includes the following: "Taxes are very much based on the principles of solidarity, which is based on the commandment to love your neighbour," former Bishop Howard Tripp, Chairman of the Church's Committee for Public Life, told Reuters on Monday. Here's another article.

The Iowa Catholic Conference issued a similar statement a few months ago.

I'd welcome Professor Bainbridge's reactions!


February 23, 2004 | Permalink | TrackBack (0)

Kulturkampf in the Backwaters: Abstract

On the sidebar, I have added a link to my article, Kulturkampf in the Backwaters: Homosexuality and Immigration Law, which looks at a) the attempts to gain "family reunification" immigration benefits for same-sex partners and b) the granting of asylum to those who have been prosecuted/persecuted on the grounds of sexual orientation and/or homosexual conduct. This article does not explicitly contain a Catholic perspective (and there are no citations to Catholic sources), but it implicitly proceeds from a Catholic anthropology. Even though this article is silent on religion, some in the immigration scholar's community who liked my bibical reflection in Who is My Neighbor? (also linked on the right), cautioned me that publishing it would damage my attempt to get religious viewpoints taken seriously in the field.

To my fellow bloggers: Any thoughts on when the Catholic viewpoint ought to remain implicit and when it ought to be made explicit?

February 23, 2004 in Scaperlanda, Mike | Permalink | TrackBack (0)