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.

Tuesday, February 17, 2004

Teluk on John Paul II and Capitalism

If one accepted Tomasz Teluk's Tech Central Station column The Pope and Capitalism at face value, one would have to conclude that John Paul II is little short of a fellow traveller with the Mises bloggers:

[M]ore and more philosophers suggest that he has read Human Action by Ludwig von Mises, and that this magnum opus by the Austrian economist probably influenced the Pope in certain fragments of his early book, The Acting Person. The Pope's criticism of so-called "bureaucratic governance" is akin to Mises' "bureaucracy." The Pope's "personalism" is philosophically very close to the Austrian School, and is based on the same Aristotelian and Thomist traditions. ...
John Paul II reminds us that property rights are natural rights. He also underlines the significance of the freedom of human action and freedom of people's economic activities. The Pope reveals to us the change in the global economy. Wealth is no longer tied only to land, natural resources or capital. Knowledge, technology and know-how are important elements of contemporary fortunes.
On the question of ethics, John Paul II indicates the social context of the entrepreneurialism. The individual, the entrepreneur, satisfies societal needs. Building on that, the free market is the most effective way to use society's resources. In Centesimus Annus, the Pope refers to it either as business economy, market economy or free economy. The free market, he writes, is the best way to promote the welfare of families. But the Pope also criticizes materialism and consumerism - alien values to Christianity. He argues that profit is not the only economic goal. Company growth is the primary indicator of good business conditions, he says, but the human individual should be the most important element in economic activity.
The Pope exhibits a great depth of economic understanding. Free-market capitalism offers the antidote to bankrupting socialism. Capitalism, to be fair, should be based on Christian ethics. John Paul II says that democracy has many faults: politicians more often work for themselves, not the people. He criticizes the conception of the welfare-state. Interventionism and bureaucracy deprive people of the responsibility for themselves, thus promoting over-regulation of the market. The welfare-state wastes human energy and creativity. Bureaucracy serves the bureaucrats, not the society.
What are the state's functions? The reader can easily detect that the pope's ideas are close to the classical liberal conception of the state. Economic activity could not be effective without institutions. The main goal of the state is to guarantee laws and to secure individual property rights and liberty. Commentators underline that John Paul II allows a certain amount of intervention by the state, but the dialogue about liberalism is revolutionary in Roman Catholic social thought.
As a Catholic neoconservative with libertarian leanings, I wish Teluk was right. But he is not. Granted, Teluk is to be credited with acknowledging that John Paul's thinking on these issues is more complex than the simple libertarianism of Austrian economists. Yet, I think even with those caveats he still misconstrues the direction of John Paul's thought.

Consider the role of profit. Orthodox economics teaches that the social function of a business is profit maximization. In contrast, the Catechism damns profits with faint praise: they make possible the investments that ensure the future of a business and they guarantee employment." Granted, Pope John Paul II’s encyclical Centesimus Annus recognized a legitimate "role of profit," but merely "as an indicator that a business is functioning well." Hence, the recently revised Catechism further explains that: "Those responsible for business enterprises are responsible to society for the economic and ecological effects of their operations. They have an obligation to consider the good of persons and not only the increase of profits."

Or consider the Pope's discussion in Centesimus Annus of worker involvement in workplace governance. In the course of that discussion, the Pope asserts that someone "is alienated if he refuses to transcend himself and to live the experience of self-giving and of the formation of an authentic human community oriented towards his final destiny, which is God." This Papal dictum smacks of the Aristotelian error of monistic perfectionism; i.e., the view that there is one supremely valuable way of life. Indeed, the Pope appears to make the same error for which he condemned socialism; namely, the belief "that the good of the individual can be realized without reference to his free choice." Hence, even though he elsewhere claims the Church has "no models" to present, the Pope seemed to endorse codetermination - rather than entreprenurial capitalism - as the appropriate form of workplace governance.

In sum, I think Teluk is correct when he suggests that John Paul's work has begun a "dialogue about liberalism [that] is revolutionary in Roman Catholic social thought." John Paul II’s encyclicals temper much of what was said in the US Bishops' pastoral letter on economic justice, for example. Yet, to suggest that the Pope embraces "free-market capitalism" as "the antidote to bankrupting socialism" surely overstates the case. The Christian libertarian ideal of free markets, a free people, and a free Church remains one that much of Catholicism holds at arms-length, even though John Paul II has created a big tent in which those of us who hold to that ideal can find a home.

February 17, 2004 | Permalink | TrackBack (0)

Legislation, objective morality, and majority rule

Mike points out that it is up to the prudential judgment of the legislator whether or not to restrict behavior based on objective morality. I want to raise a related, but more skeptical line of inquiry: Given that the discernment of morality in the legislative realm is inherently driven by majority rule, shouldn’t that make Catholics leery of appealing to the legislature to adopt a morality-based conception of the common good where such adoption would limit others' ability to pursue contrary conceptions of the good? For those who believe in the moral anthropology’s objective truth, to what extent should their efforts be aimed at persuading their fellow citizens of this truth, as opposed to persuading the legislature to require their fellow citizens to abide by this anthropology whether or not they believe it to be true? Put more particularly, are American Catholics well-served in seeking top-down implementation of the common good on contested moral issues?

Certainly legislation always reflects some sort of moral vision, usually cast in terms of the avoidance of harm. Where the harm's existence is discernible only through the lens of disputed anthropological presumptions, though, legislative initiatives seem more problematic to me. When Catholics ask the legislature to adopt and enforce a particular conception of the common good, my concern is with what happens when the majority’s view of the common good no longer comports with the moral anthropology or perhaps even intrudes on Catholics’ own ability to act consistently with the moral anthropology. In Western Europe, we see that conceptions of the common good are largely up to majority vote. One recent outcome is France’s ban on religious garb in public schools.

So if America is perpetually doomed to follow Europe’s trends, is there an argument that Catholics’ own self-interest compels them, for example, to support, at least instrumentally, the Supreme Court’s morally agnostic reasoning in Lawrence v. Texas? If the majority’s conception of the common good is imposed on gays, what is to prevent a contrary conception from being imposed on Catholics in the future? (After Employment Div. v Smith, I’m not sure the Free Exercise Clause provides an easy answer.) We already see states requiring Catholic employers to cover prescription contraceptives and Catholic health providers to offer abortions. In states adopting school voucher programs, we’ll undoubtedly see a greater effort to secularize Catholic schools. It’s widely agreed among Catholics that they should try to carve out rights-based enclaves from the imposition of the majority’s conception of the common good in these areas, but shouldn’t Catholics be equally hesitant to impose their conception of the common good in areas where the majority’s view currently comports with the moral anthropology? Does the rapidly changing moral landscape suggest that our legislative agenda should reflect a robust moral pluralism, leaving the ultimate questions of the good (and corresponding conduct) to the marketplace of ideas, rather than the trump of government dictates?


February 17, 2004 in Vischer, Rob | Permalink | TrackBack (0)

Christianity and Criminal Punishment

Here's a link to the Murphy article I mentioned a few days ago, "Christianity and Criminal Punishment." It's well worth a look.


February 17, 2004 | Permalink | TrackBack (0)

Legislation, objective morality and the natural law

John Allen (The Word from Rome, 2/13/04 edition) alerts us to a timely discussion at the Congregation for the Doctrine of the Faith about natural law that is relevant to Rick's question and Michael's response below. Pope John Paul II is certainly right to point out not merely that natural law is in crisis, but especially that "Today, in consequence of the crisis of metaphysics, a truth written in the heart of every human being is no longer recognized in many sectors of opinion. This results, on the one hand, in the diffusion among believers of a morality with a fideistic character, and on the other, legislation comes to lack an objective reference, so that it’s based solely on social consensus, making it more difficult to reach a common ethical foundation for all humanity." Although I agree with Michael that Barnett is mistaken in failing to recognize how legislation ought to be oriented toward the objective truth of things, that response alone is an insufficient assertion in today's social context because mass culture is dominated by an understanting of reason that is so corrupted that we are made incapable of judging with conviction that morality can be objectively reasonable at all. Even some of my most seriously Catholic students sometimes have a hard time understanding what the reasonable basis of the natural law is. It is symptomatic of the deep inculcation of a mentality that separates faith from reason -- rather than being necessary to an open and intelligent judgment of reality, religion is ghettoized, reason is pulverized and morality becomes a function of the conventions of the powerful. There can be no natural law where man is the measure of all reality.

February 17, 2004 | Permalink | TrackBack (0)

Monday, February 16, 2004

Moral Objectivity and the Legislature: A Comment On Prof. Barnett's Quote

Rick’s February 11 post (“Legislative Moralism”) asks his fellow bloggers to comment on Professor Randy Barnett’s assertion that “a legislative judgment of ‘immorality’ means nothing more than that a majority of the legislature disapproves of this conduct.” (from Barnett’s working paper, “Justice Kennedy’s Libertarian Revolution”).

This quote seems to assume that the rightness or wrongness of certain actions is measured only by the subjective tastes and preferences of private individuals and groups. And, if morality cannot be judged by objective criteria, then we are hard pressed to justify vesting the majority with the authority to impose its own subjective morality on society through legislation.

There are several practical problems with this approach. Who counts as a rights bearer or a member of the community entitled to equal respect and dignity? An African-Americans held in slavery? A three month old fetus? An eight month old fetus? A two month old child? My elderly father? A dog? And, how do we decide who counts? Can (or should) the majority impose its own view of who counts on the rest of society? Also, what constitutes “amoral” harm that would justify majority interference with the preferences of the minority? Is adult incest “harmful?” What about beating a dog (assuming the dog is not a right’s bearing individual)? What about adult-child sex? People will and do disagree about what constitutes harm. If there are no objective criteria for preferring one person’s moral vision over another’s, are there objective criteria for preferring one person’s conception of membership or harm to another’s?

At a deeper level, underlying Barnett’s quote are liberal individualist anthropological assumptions. A Catholic perspective proposes an alternative anthropology, suggesting that there is an objective reality about the human person, that there are objective rights and wrongs, and that it is sometimes the responsibility of the state to step in and restrict objectively wrong or “immoral” behavior. To quote and paraphrase Rick, “in the Catholic tradition of moral realism, … ‘immorality’ has been thought to signal more than (mere) disapproval.” Calling something immoral means that is it is objectively disordered; that it will not and cannot lead to our own good or the good of the community. In other words, while the immoral act might lead to a short-term and deep-felt gratification, it will not lead to our long-term or true happiness.

So for example, a parent spending much needed grocery money on alcohol (to numb the pain of financial worry) or lottery tickets (to indulge the fantasy of relieving the financial stress) is acting in a way that is destructive to a) the parent, b) the children, and c) the community.

Whether we ought to legislate to restrict the immoral act is a separate question, one that depends on the prudential judgment of the legislator. The legislative majority might decide against legislation to restrict the objectively immoral act because the legislation would be hard to enforce, because it would involve the state in policing the elusive boundary between legitimate and illegitimate expenditure of a family’s funds, and/or because leaving the individual free to make his own decision (for good or ill) will more likely lead to his own moral growth. But, the legislature might decide, for instance, to ban the lottery in a particular state so as to relieve certain members of vulnerable populations of the temptation to indulge the get rich quick fantasy at the expense of their families. Whether or not the legislature acts in this hypothetical, the community can rightly judge the behavior as immoral - and this is more than a signal of (mere) disapproval. It is instead, a signal that the individual is acting in an objectively disordered way.

February 16, 2004 in Scaperlanda, Mike | Permalink | TrackBack (0)

Book Review of Peter Steinfels, A People Adrift

A People Adrift
The Crisis of the Roman Catholic Church in America

Peter Steinfels; Simon & Schuster, 2003, 377 pp. $26.00

A “crisis” is a turning point. Peter Steinfels uses the word in that sense in the subtitle to this extraordinary book, for he believes that “the Roman Catholic Church in the United States is on the verge of either an irreversible decline or a thoroughgoing transformation.” Catholics of every stripe would agree with that proposition. Many, however, would disagree with each other (and Steinfels) about the nature of that crisis and its proper resolution. The profundity, and bitterness, of that disagreement is one of the reasons why Steinfels describes American Catholics as “a people adrift,” caught in many apparently irreconcilable differences, and struggling to produce the leadership and unity needed for a positive transformation. Steinfels argues, however, that there are paths through those differences, and that the American Church’s crisis need not resolve itself into a “soft slide” toward European-style irrelevance.

Steinfels is unusually qualified to make that argument. Trained as an historian, his distinguished journalistic career has included serving as editor of Commonweal and writing the “Beliefs” column in the New York Times. He is intimately familiar with every major development and dispute in American Catholicism since Vatican II, and has written about most of them. In this book, he surveys the climate of opinion on the most important and contested issues: the Church’s always-controversial role in the American democracy, the meaning of Catholic identity in Catholic higher education and health care, the post-Vatican II struggles over the liturgy and catechesis, the reasons for the shrinking number of priests and nuns, and the uncertainty over the role of the laity in Church leadership. His discussion of these issues is always precise and analytical. He presents concisely but thoroughly, and with an unremitting fairness, the key arguments from across the ideological spectrum.

Steinfels is not, however, a dispassionate analyst or a neutral observer. His chapter on “Sex and the Female Church” is a devastating critique of the Church’s failure to respond to what he sees as world-historical change in the understanding of sexuality and the status of women. This failure, exemplified by what he views as the tragic error of Humanae vitae on contraception, has not only prevented the Church from developing a theology of the body that resonates with most of the faithful, but has led to the alienation of many Catholic women. Inflexible opposition to contraception in marriage, justified by rigid deductions from natural law and highly abstract philosophical principles, has led not just to massive rejection of the Church’s position by most Catholics, but has damaged its authority to speak on family life and deeply compromised its ability to treat homosexuals with dignity. Perhaps most ominous, the Church’s theology of contraception and sexuality has diminished its prophetic voice where it is most needed: as an advocate for human dignity against the moral threats of unrestrained biotechnology. Steinfels is not convinced by the argument that the tensions within the Church over sexuality and the status of women should or could be resolved by simple obedience to the truth of the Magisterium and a Catholic tradition that sets itself apart from a wounded modern culture. Steinfels insists that much defined as essential to the tradition is actually inessential, out of touch with the core of Catholic spirituality, and a source of unnecessary conflict and alienation.

His prescriptions for change, however, are cautious, incremental and sensitive to the pain and spiritual uncertainty associated with change in an institution where tradition plays such an unusually important role. While repudiating the arguments against female ordination, for example, he suggests that female membership in the deaconate may be a prudent first step. He believes that none of the arguments asserted by the Vatican and its conservative supporters in support of mandatory priestly celibacy are compelling, and that the requirement eventually should be abandoned. But he understands that such a change would require a wrenching, difficult transition to new structures for clerical formation and new ways of organizing priestly life. He urges careful study of the experience of Eastern Orthodox and other denominations with married priests as a prelude to any change. His genuine appreciation of the insights of Catholic feminist theology is muted, furthermore, by his dismay with tendencies toward a New Age-ish syncretism that is essentially post-Christian.

For all of his “liberal” convictions, Steinfels does not see mainline liberal Protestantism as a model for a transformed American Church, because he understands how that tradition is virtually withering away, and he thinks the Church should take very seriously conservative anxieties about the loss of Catholic identity. He sees hope for a renewal of that identity in the burgeoning growth in lay leadership: “[n]ew circumstances, new religious needs, and new spiritual energies have fused into an extraordinary innovation in American Catholic life.” And he sees a model for inspired clerical leadership in Joseph Cardinal Bernardin, whose Common Ground Initiative and eloquent articulation of the “consistent ethic of life” offered a way out of the bitter culture wars that have divided American Catholics since Vatican II.

Even though his Common Ground Initiative was attacked by Cardinal Law and others, and many conservatives have been brutally dismissive of Cardinal Bernardin’s image of the “seamless garment” of life, Steinfels sees in him the type of episcopal leadership needed to channel the energies of the laity and to preserve the centrality of the priesthood and the episcopacy to Catholicism.. Despite its critical and often pessimistic tone, A People Adrift ends with the image of Mary as “a sign of certain hope and comfort to the Pilgrim People of God.” As Steinfels knows, however, American Catholics are still searching for the new Bernardin. If one emerges, furthermore, many will find in his call for the establishment of common ground a betrayal of what they regard as core principles. The ideological cleavage among Catholics, perhaps best evidenced by the radically different interpretations by left and right of the sexual abuse scandal, suggests that the future may not bring a “soft slide” into irrelevance, but the bitterness of factionalization.

February 16, 2004 | Permalink | TrackBack (0)

Saturday, February 14, 2004

Mormons and Lord Devlin

Over at the "Times and Seasons" blog ("Quite possibly the most methodologically individualist, yet vegetarian, onymous Mormon group blog in history"), Nate Oman has a post that might be of interest to "Mirror of Justice" participants and readers. The post is a reflection on, among other things, the Hart-Devlin debate about the relationship between a society's morality and its criminal code. Oman contrasts the Devlin view with the "classical natural law tradition."


February 14, 2004 | Permalink | TrackBack (0)

Friday, February 13, 2004

Law and the meaning of our humanity

Thanks, all, for the very stimulating beginning! Since this is my first post, I thought I’d start with a couple of words about what I think our “experiment” is about, really. At some level, I don’t like the subtitle of our forum – “dedicated to the development of Catholic legal theory.” What I understand this discussion, and my work as a Catholic legal scholar, to be about is not “Catholic legal theory” so much as “legal theory” tout court. The Catholicity of it lies first in a commitment to all that is good and right and true – or, put another way, an openness to reality in the totality of its elements. Second, it lies in a conviction that He who is the meaning of all things, as he continues to be present throughout history in His Body (that is, the Church), is the only way to maintain that openness and thus the most complete way for humanity to even glimpse the unity of meaning of all reality and to remain in relationship with it. From that perspective, it would be a fundamental mistake to suggest that “Catholic” legal theory stands (or even could stand) alongside other “forms” or “modes” of legal theory with which it competes. That would perpetuate an understanding of reality, including the meaning of our humanity and its destiny, as essentially fragmented rather than unitary, which basically sells the store for the intellectual currency of modernity right from the start. In other words, my desire is not to develop Catholic legal theory, but to explore how the encounter with Christ, as illumined by the teaching and tradition of the Church, can make our understandings of law more intelligible, our judgments about it more reasonable, and our actions through law more fully human.

That finally brings me to the ongoing discussion below about philosophical anthropology (I would drop the “moral” from the label, which seems to me both redundant and a temptation to reduce the problem of human nature and law to moral questions in a narrow sense – even though I understand that’s not at all your intent, Rick). If a legal theory aspires to do what I described in the preceding paragraph, it must be able to offer an understanding of law that corresponds more fully to the totality of our human experience. This is true whether we speak in the language of classical natural law or Catholic Social Thought (I do not mean to suggest a dichotomy between them – merely that the vocabulary can be different at times). So, yes, I agree that good legal theory has to be about anthropology. But many centuries of legal thought have been devoted to eliminating those fundamental questions of the meaning of humanity from the scope of law, or at least to radically reducing the “answer” to those questions. If we are to renew legal thought on those grounds, it will take a long process of educating ourselves to have a genuine interest in and affection for our humanity, one that in turn provokes a sincere and open asking of the question of its meaning – because, to paraphrase Reinhold Niebuhr, nothing makes less sense than the answer to a question that is not asked.

February 13, 2004 | Permalink | TrackBack (1)

Thursday, February 12, 2004

The "Political Dimension"

Rob asks (below) whether the "divergence in emphases [suggested in Vince's and my earlier posts] also underlie the political split between left-leaning and right-leaning Catholics?" and also "does the Republican wing of the Catholic Church tend to emphasize anthropology first, action second, while the Democratic wing tends to emphasize action first, anthropology second?" I guess, for what it's worth, I'd say "no" to both questions.

I agree with Rob that President Bush often uses the language of subsidiarity, etc. And, this is good (I think). Still, each political "side" has -- as Vince pointed out -- "anthropological difficulties" (after all, both major parties inhabit our culture, and Catholic anthropology seems, increasingly, counter-cultural). Each party's platform arguably presents inviting targets for action (i.e., each party supports things we might oppose). And, each party's platform arguably contains or calls for some "actions" that a citizen hoping to act in a manner consistent with CST could support. For some of us, the sanctity of unborn life, or the fragility of religious freedom, might push in one direction; for others, questions about the use of military force or the just levels of social services and poverty relief might push in another. In any event, it is not at all clear that an emphasis on "action," or "confronting injustice," would necessarily push one to one party over another.

My original point about "moral anthropology" was certainly not to endorse navel-gazing quietism. Instead, the suggestion was (and is) simply that, if we are trying to think about a Catholic legal theory, as opposed to (for now) a program of political action, we might start with questions about what the person really is, and why it matters.


February 12, 2004 | Permalink | TrackBack (0)

Political Dimension

I wanted to follow-up on Rob's comments regarding the "politcal" leanings of those who support "action" or "anthropology." First, I think it is important for those of us who believe in a Christian anthropology to remember that we agree more than we disagree or, put another way, we are addressing issues based on a shared understanding about what is fundamentally true. There are, nevertheless, some important points of divergence when it comes to how we deal with the practical realities of living in the world.

I think both American political parties are deeply rooted in an anthropology of autonomy. At base, the Republican vision is one in which the individual needs to be set free from communal constraints so that personal freedom can be maximized in the economic/public sphere. This "freedom" justifies all kinds of inequalities in American society (and around the world) primarily in the service of an ever expanding market. It also helps explain the growing commodification of American life. These changes do not benefit the blue collar and middle-class people who have become Republican voters to the extent many of them believe (see e.g., Elizabeth Warren's The Two Icome Trap), but in order to woo those voters, the Republican party has, in my view cynically, taken a traditionalist position on cultural issues. This is simply a natural extention of the Southern Strategy.

The Democrats need individual autonomy to free individuals from communal contstraints in the cultural/private sphere. They were able to seize on the inability of American conservatives to deal with serious questions of social justice regarding race. Since then, however, the Democrats have allowed themselves to be captured by the idea that unfettered personal freedom is the highest good. We should all be able to live as we wish, and the state will clean up our messes. The cultural and economic insecurities of African-Americans, poorer immigrant groups, and others have given the Democrats a reliable base of voters who are actually more conservative on social issues than the party, but who are afraid to trust the Republicans. The primary beneficiaries of the social freedom offered by the Democrats are the cultural elites of the large cities and their suburbs--well educated professionals, etc. Indeed, the money elites of the Republican party are also key beneficiaries of the highly permissive culture championed by the Democrats.

So, I don't think either party presents a choice that a Catholic should feel good about, but I suppose individual Catholics might take a pragamtic view that one party is "less bad" than the other. Either way, the entire body of the social teaching stresses the need to confront structures of social, economic and cultural power that undermine human dignity, as we understand it in our tradition. In particular, Sollicitudo rei Socialis and Centissimus annus develop the concepts of structural sin, solidarity, and the priority of the poor that, when applied to American politics, show how broken our political system is. But human life is imperfect, and so are human institutions. Catholics live in the world and the credibility of the social teaching is rooted in its witness of a lived Catholic faith. In Evangelization in the Modern World , Pope Paul VI made this point: ". . . the first means of evangelization is a witness of an authentically Christian life, given over to God in a communion that nothing should destroy and at the same time given to one's neighbor with limitless zeal. . . modern man listens more willingly to witnesses than to teachers, and if he does listen to teachers, it is because they are witnesses."


February 12, 2004 | Permalink | TrackBack (0)