Mirror of Justice

A Burkean Function for CST in the Face of Ethical Pluralism

The Congregation for the Doctrine of the Faith’s Doctrinal Note on Some Questions Regarding the Participation of Catholics in Political Life raises the interesting problem of how Catholics should bring to bear Church teachings in a public square dominated by ethical pluralism:

A kind of cultural relativism exists today, evident in the conceptualization and defence of an ethical pluralism, which sanctions the decadence and disintegration of reason and the principles of the natural moral law. Furthermore, it is not unusual to hear the opinion expressed in the public sphere that such ethical pluralism is the very condition for democracy. As a result, citizens claim complete autonomy with regard to their moral choices, and lawmakers maintain that they are respecting this freedom of choice by enacting laws which ignore the principles of natural ethics and yield to ephemeral cultural and moral trends, as if every possible outlook on life were of equal value.

Those who see ethical pluralism as a justification for cultural relativism reject the notion that the truth of a moral norm can be established. At best, they regard moral norms as indeterminate “can’t helps.” Yet, the genuine immorality of an act is a necessary (but not sufficient) condition for the legitimacy of its legal prohibition. Because all conceptions of the good necessarily invoke non-derivable moral assumptions, we cannot avoid an inquiry into the morality of an act we propose to regulate.

To be sure, the truth of moral norms and their support in the community are necessarily intertwined. At the same time, however, truth and social support ultimately must be kept separate. Failing to do so leads inevitably the contractualist fallacy; namely, the position that moral norms are simply an agreement among members of society. Edmund Burke defined natural rights as not merely a matter of convention, but as “human custom conforming to divine intent.” Unconstrained contractualism, in contrast, makes lawmaking a mere popularity contest among competing political positions clothed in the language of rights. Inevitably, the lowest common moral denominator will prevail.

Catholic social teaching joins with other ethical systems in rejecting the contractualist approach to moral norms. As Pope John Paul II has observed, “if there is no ultimate guide truth to guide and direct political activity, then ideas and convictions can easily be manipulated for reasons of power.” At its worst, John Paul explained, contractualism thus leads to the sort of totalitarianism exemplified by Revolutionary France in which the state, embodying the “general will,” subjugated both faith and conscience. The social contract degenerated into nothing more than an accord among those who had the power to impose their will on others.

How shall the truth of a moral norm be established? Here I think Catholic social teaching provides a mechanism for doing so that is consistent with, but not dependent on, revealed truth. (Put another way, human reason is a means by which we refine our understanding of divine instruction. Edmund Burke contended, for example, that there are “eternal enactments of divine authority which we can endeavor to apprehend through the study of history and the observation of human character.”)

Although reason is a useful guide, it flirts with a grave danger; namely, the triumph of individual reason. Burke contended that individual reason could never fully comprehend the divine intent, although we grope towards it through history, myth, fable, custom, and tradition. Of these, tradition and custom are by far the most important.

The methodology of Catholic social teaching strikes me as a very Burkean one. Like Burke, Catholic social teaching puts a high value on tradition. The teaching evolves over time, but rarely radically. Instead, each new major document in the social teaching literature builds on its predecessors.

The Burkean nature of Catholic social teaching is important because it provides a solution for the risk of value disagreement in an ethically pluralistic public square and the resulting claims of cultural relativism. The prudent statesman respects tradition precisely because the enduring truths of what Burke aptly called “original justice” are revealed slowly, with experience, over time. As John Randolph put it, providence moves slowly, but the devil always hurries. The individual is foolish, but the species is wise. We thus turn aside from ancient usage at our peril; far better to profit from the wisdom of our forbearers. Catholic social teaching is an important source of the traditions of the communities of Western civilization, but also is beginning to make substantial contributions to the traditions of many Third World cultures.

Catholic social teaching thus serves as one of the repositories of tradition by which we can evaluate value disagreements grounded on human reason. Individual reason in today’s moral climate too often leads to mere values, which are purely matters of personal preference, lacking the moral force to bind others. In contrast, tradition emphasizes standards grounded on preferences that have been widely accepted over a very long period.

If I’m right about all this, it has important implications for those of us who bring to bear our own reason on the teachings of the Church. The function of human reason within a moral tradition is not a critical one, seeking to expose the tradition’s faults, but rather a respectful one, seeking to learn what the tradition offers. Burke, for example, approved of those who “instead of exploding general prejudices, employ their sagacity to discover the latent wisdom which prevails in them. If they find what they seek, and they seldom fail, they think it more wise to continue the prejudice [i.e., tradition or custom], with the reason involved, than to cast away the coat of prejudice and to leave nothing but the naked reason.”

None of this is to suggest that Catholic social teaching should be interpreted as being a faith-based version of the Republican party platform. Respect for tradition requires neither blind resistance to change nor a return to some idyllic past. Burke, the father of modern conservatism, was known in his own time as a reformer. Burke’s conservatism was expressed in his limitation of reform to clear and present social dangers and his resistance to reforms premised on abstract reason. It is this methodology – rather than any particular policy outcome – that I am commending to my fellow laborers in the Catholic social teaching vineyard.

Earth Day 2

Kaimi Wenger, who co-authors the group blog Times and Seasons , writes: "You may want to look at John Copeland Nagle, Playing Noah, 82 Minn. L. Rev. 1171. It discusses the idea of species preservation, using the example of Noah and what lessons we can take from him. (Not a specifically Catholic idea -- it's applicable to anyone within the Judeo-Christian tradition)."

Earth Day

The recent observance of Earth Day prompts me to ask my fellow bloggers and any readers to recommend sources (legal or otherwise) engaging questions of stewardship of our environmental resources from a Catholic perspective.

School choice as a moral versus legal right

If the parental "rights" underlying Rick's school choice argument (see below) emanate from a moral understanding of the human person in relation to society, rather than from a non-negotiable entitlement recognized within our legal system, I have no problem with such "rights talk." I do believe that a morality-driven conception of educational choice, in terms similar to those expressed by Rick, is a welcome and persuasive entry into the public debate over school vouchers. An argument framed in terms of moral rights, though, is far different than a request that courts recognize school choice as a legal right, whether conceived of as an aspect of religious liberty or otherwise.

I don't think we're left with a stark choice between parents as rights-holders (in a positive liberty sense) and an oppressive state monopoly, with no middle ground. Instead, I see parents operating within a meaningful sphere in which they are legally empowered to block state intervention into their children's education. Outside that sphere, they are politically empowered to win the hearts and minds of the surrounding community, probably through advocacy steeped in moral considerations, to secure a claim on public educational resources that is consistent with the common good. Certainly I'd rather have parents making choices for their own children than some faceless collective making choices for all children, but I do think that parents' power to choose must be understood against the background needs of the community, and I'm not sure that a legal right (as positive liberty) allows that sort of choice.

To the extent that Rick shares this conception of moral versus legal rights, at least in the school choice context, we are in complete agreement.

Rob

Vouchers and Parents

I share Rob's concern (below) about going too far down the "positive, unenumerated rights" road in the voucher context, or in any other. In my own post (more below!), I meant to say -- and I do believe -- that (fit, non-abusive, etc.) parents have a *moral* right to direct the education and upbringing of their children. And while I think there are strong arguments that the Fourteenth Amendment does, in fact, protect certain fundamental, unenumerated rights (via the PI Clause), Rob's hesitation to constitutionalize a right TO educational choice is quite reasonable.

I do not think I can agree, though, with the suggestion that building the school-choice argument on parents' moral rights -- and on family integrity -- takes us too close to the "individualist, autonomy-driven discourse of the surrounding legal culture." It seems to me that an argument emphasizing the importance of family integrity (as opposed to state monopoly) takes us *away* from excessive individualism. No?

Rick

An amoral vision of physicians

The state legislatures in Wisconsin and Michigan have recently passed bills providing that physicans have the freedom not to perform procedures to which they morally object, such as abortions, sterilizations, or procedures involving human embryos. In Wisconsin, the governor this week promised to veto the so-called "conscience clause." Governor Jim Doyle offered the bizarre justification that "[y]ou're moving into very dangerous precedent where doctors make moral decisions on what medical care they'll provide." I'm hoping he was misquoted, for I think it's a much more dangerous precedent to have the governor of Wisconsin explicitly calling for doctors to disconnect their own moral convictions from the medical services they provide. (History is filled with supporting examples, Nazi Germany being the most obvious.)

Governor Doyle's comment reflects, in my view, our legal system's tendency to elevate individual autonomy to absurd heights. Doctors, like lawyers, are seen not as independent moral agents, but simply as tools by which individual consumers can gain unfettered access to public goods like medicine and law. There is no room for judgment, on the provider's part, as to whether certain services are truly "good" -- if the consumer wants it, the provider is legally mandated to make it happen. The same individualism underlies the California Supreme Court's requirement that Catholic employers include contraceptives in their health care plans. (see earlier posts)

This trend is especially problematic for those of us who take subsidiarity seriously. If we want social problems to be addressed locally, those local agents must be empowered to act in ways that are consistent with their own fundamental convictions. If local agents are stripped of their power whenever their vision of public service defies the individualist presumptions of the governing legal regime, then the collective norm has trumped -- which is exactly the scenario that subsidiarity is designed to guard against.

Rob

School Choice: the new civil right?

While I consider myself a supporter of school choice, I am a bit leery of framing the argument for vouchers in terms of parental rights. Certainly parents do have the right to control the education of their children, as established by cases like Pierce and Yoder, but I've always understood this right as an example of negative liberty -- i.e., parents have the right to prevent the government, under most circumstances, from dictating the setting of their children's education. What Rick's admittedly powerful argument seeks to do (see his post and accompanying article, below), in my view, is turn this right into a positive liberty -- i.e., parents have the right to force the government to equip them with the means to educate their children in a setting of their choice. While, as a policy matter, I may look favorably on this outcome, I'm hesitant to endorse the means by which Rick seems to take us there.

My hesitation is difficult to articulate, but I think it has three aspects:

First, calling for the expansion of unenumerated constitutional rights is a path not to be lightly embarked upon, for obvious reasons.

Second, while parental prerogatives, especially freedom from government interference in the inculcation of religious values, are undoubtedly non-negotiable elements of subsidiarity and the Church's broader social teaching, I perceive a danger if we too readily adopt the individualist, autonomy-driven discourse of the surrounding legal culture, even though we may reflexively think that the individual autonomy of the parent is a good thing.

Third, as has been widely commented on elsewhere, rights-based discourse lends itself to a zero-sum contest of absolute power claims, and once certain claims are recognized, there is no going back. In this regard, parental rights, in their extreme form, could actually make pursuit of the common good more difficult by reducing our ability to balance competing, valid claims to scarce resources. Put more simply, there might be a good reason for a school district strapped for cash and struggling to maintain the vitality of its public schools to resist the blanket and/or immediate implementation of vouchers. But once we understand vouchers as a non-negotiable aspect of religious liberty, the school district's hands are tied, and the common good may effectively take a back seat to the parents' unfettered and constitutionally mandated autonomy.

I guess I'd prefer to let school choice be embraced or rejected by the people on the merits, not enshrined by the courts, tempting as the prospect might be.

Rob

The Reason(s) for Vouchers

Thanks to Rob for the links and summaries to his school-voucher-related scholarship. As Rob and I have discussed on several occasions, (and as I've argued in an article of my own) I believe that the school-choice argument needs to be framed not only in terms of competition, of academic success, or even of providing financial assistance to the poor. (To be clear: The benefits of competition, the academic strengths of many religious schools, and the urgent need to do a better job of educating children from low-income families are all good reasons, in my view, to support school choice). The argument for educational choice, and for religion-inclusive school-choice programs, also and importantly sounds in subsidiarity and religious freedom. Thus, while I agree that, in a world of financial scarcity and political realities, there are good reason to structure voucher programs in such a way that the needs of the poor are targeted first, I would not want to lose sight of the fact that parents have a fundamental right to direct and control the upbringing and education of their children and that the meaningful capacity to select and attend a religious school is essential to authentic religious freedom.

Rick

The Person in Community

Reading Rick's discussion about Randy Barnett's recent talk here at Notre Dame got me thinking about the relationship of Catholic social teaching to libertarian individualism. I am increasingly troubled by representations of Catholic understandings of individual liberty that seem to be rooted in a negative construction of rights and an understanding of the human person that proceeds from autonomous individualism. Although there has been an important shift in focus in Catholic social teaching to the person as a subject since Vatican II, this has led to a greater consideration of not only human freedom, but also of equality and participation. Equality and participation are inseparable from life in community in Catholic social thought, and this has consequences that libertarians and other Anglo-American liberals will not accept.

Indeed, one can never consider freedom in the Catholic context without being acutely award of the centrality of the social understanding of human personhood to Catholic theology. Human dignity is fully realized in community with others. Equality in community means that individuals have rights related to the participation in the life of a society that are not contractural in nature, but are central to their dignity as persons. We may, in other words, owe more to others and to the society at large than we choose to owe.

The necessity of government flows directly from human sociability and the essential realtion of sociablility to the dignity of the human person. The libertarian tendency to position government as a oppressive force, legitimate only when necessary to enhance the flourishing of individuals, strikes me as antaganistic to Catholic thinking. Government exists for Catholics to enhance our life in common, recognizing not only our dignity as individuals, but also our need for participation in communal structures that work to enhance and secure the common good.

In a pluralistic society like our own, Catholics will no doubt often find themselves in disagreement with certain choices made by the government and certain assumptions underlying various laws and policies. Yet, this is after all, is a wealthy, sophisticated participatory democracy, not a military junta, and what our government does is, or should be, affected by choices we make as citizens. When government action is used to limit individual liberty, Catholics should first ask why. Handing certain tasks over to a larger group within the society may be the only way to ensure to ensure meaningful equality and participation for all members of the community. Was this govrernment constraint on individual liberty necessary to enhance the flourishing and participation of weaker members of society? If, for example, education is necessary for social participation, it might be the obligation of all citizens to support public funding for schools, particularly if there are members of the society who would be denied an education if such funding were unavailable. Are there certain repressive economic or social structures within our society, perhaps due to unique culutural or historical experiences, that blind many individuals to certain kinds of injustices? If so, it may be our responsibility to support government programs that attempt to compensate for these injustices, assuming smaller groups within the society have shown themselves ineffective (or insufficiently effective) in addressing these problems.

Unfortunately, I think libertarian ideas are used in American political and social discourse (on both the right and the left) in ways that proceed from the a views of community and the claims on individual behavior that community creates, as necessary evils best. Nothing could be less Catholic. Our dignity, liberation, and redemption are bound up in life with others. When it comes to the individual and community for Catholics, it's both/and, not either/or.

Vince

Race, public opinion, and school choice

In the sidebar, I have posted two of my publications dealing with school choice. The first, Racial Segregation in American Churches and its Implications for School Vouchers, analyzes the impact that the segregated state of Christianity in America might have on any widespread implementation of school vouchers. Basically, I suggest that, to the extent voucher money is made available with few strings attached, churches that have not established their own schools will have the incentive to do so, allowing more students the opportunity to select a school that is affiliated with the church they attend. In a relatively recent survey, 90% of whites said that their congregations had few or no blacks, and 73% of blacks said that their congregations had few or no whites. In light of these statistics, I wonder whether aligning educational affiliation more closely with religious affiliation is necessarily a good thing, at least in terms of racial diversity. Catholic schools in the inner city have been at the forefront of integrating student bodies, I realize, but up until now they have been competing primarily against failing public schools, not against an array of start-up schools operated by Protestant churches. (Tom Berg argues that my concern is somewhat misplaced in his article, Race Relations and Modern Church-State Relations, 43 B.C. L. Rev. 1009 (2002).)

The second piece, Public Opinion and the Culture Wars: The Case of School Vouchers, reviews a recent book by one of the school voucher pioneers, Terry Moe, and applauds what I view as his middle-ground approach to school choice. He favors vouchers on a limited basis for financially needy students. Moe crafts his policy recommendations based in significant part on public opinion data, and I posit that such an approach may hold promise for some of our more polarized "culture war" debates.

I welcome comments/feedback on either piece.

Rob