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.

Monday, June 28, 2004

Fetal Pain Legislation

Today's Chicago Tribune has an interesting column on the logic of those opposing the Unborn Child Pain Awareness Act, which would require that "a patient who is 20 or more weeks into a pregnancy . . . be advised of the scientific evidence that the fetus experiences pain during an abortion. Her doctor would have to offer anesthetics for the fetus. The doctor would also be free to state his or her views on the subject." To the columnist, the decency of the proposed legislation is obvious, whether or not one believes that abortion should be outlawed:

One of the most dramatic medical advances of recent years has been the use of surgery to correct birth defects--before birth. Surgeons can operate on fetuses in the womb for a variety of conditions, from life-threatening tumors to spina bifida. When they operate, it may surprise you to learn, they provide anesthesia not only to the mother but also to the fetus.

Or maybe it doesn't surprise you. Maybe it seems obvious that fetuses can feel pain long before they emerge into the world. But some people wish you wouldn't think about that fact.

In truth, [the Act is not anti-choice because] it would have no effect whatsoever on a woman's right to end a pregnancy. All it would do is recognize that if a fetus is going to be destroyed, there's something to be said for doing it in the most humane way possible.


June 28, 2004 in Vischer, Rob | Permalink | TrackBack (0)

Sunday, June 27, 2004

Wrongful dis-affiliation?

Here's a story from the Boston Herald:

"The spiritual teacher stripped of her Christian Science affiliation after refusing to repent for marrying her lesbian partner of 10 years is now considering suing.

'I have three names of attorneys that were recommended and I just feel like that maybe I should call one of them,' Kathleen Clementson, 62, said from her Florida home yesterday.

Clementson married Suzanne Nightingale, 49, in a private morning ceremony May 20 on a beach in Brewster, three days after state law granted gay and lesbian couples the right to apply for licenses.

When a wire service picture of their vows circulated through the country, Clementson was soon reprimanded by the church board who ordered her to repent. When she refused, she was stripped of her teaching credentials and her membership."


June 27, 2004 | Permalink | TrackBack (0)

Parisi on "Positive, Normative, and Functional Schools in Law and Economics"

Here (thanks to Larry Solum) is the abstract to Francesco Parisi's latest paper, one that I imagine will be of interest to many Mirror of Justice folks (Parisi is a Roman Catholic law professor):

"During its relatively short history, the law and economics movement has developed three distinct schools of thought. The first two schools of thought, often referred to as the Chicago or positive school and the Yale or normative school, developed almost concurrently. The functional school of law and economics, which developed subsequently, draws from public choice theory and the constitutional perspective of the Virginia school of economics to offer a third perspective which is neither fully positive nor fully normative. Various important methodological questions have accompanied the debate between these schools concerning the appropriate role of economic analysis in the institutional design of lawmaking and the limits of methods of evaluation of social preferences and aggregate welfare in policy analysis. These debates have contributed to the growing intellectual interest in the economic analysis of law."


June 27, 2004 | Permalink | TrackBack (0)

Disturbing news about threats to religious freedom

According to this story:

"Massacres and murders in the name of religion declined around the globe in 2003 but in countries including China and North Korea religious persecution is still widespread, an international Catholic charity said on Friday.

'Last year we may have seen a drop in headline-grabbing religious violence, but I wouldn't call it a trend,' said Attilio Tamburini of Aid to the Church in Need (ACS), at a presentation of the group's annual report on religious freedom.

'We also saw a maintaining of the brutal situation of oppression in many countries like China and 2004 could be worse in other countries with fundamentalism on the rise,' said Tamburini, director of the ACS's Italian operations."


June 27, 2004 | Permalink | TrackBack (0)

Garry Wills: Biblical Fundamentalist

Thank you Michael P. for this post. Until reading it, I did not know that Garry Wills is a biblical fundamentalist.

Michael S.

June 27, 2004 in Scaperlanda, Mike | Permalink | TrackBack (0)

Theology and Abortion

[Thought this would be of special interest--from this morning's New York Times. --Michael]

The Bishops vs. the Bible


Catholic bishops recently met and sought the best way to enforce "church teaching" with Catholic politicians who fail to oppose laws that allow abortion. Some critics of the bishops see this as a violation of the separation of church and state. Both sides are working from misconceptions. Abortion is not a church issue, so what the bishops have to say about it cannot be an intrusion of the church into state concerns. Abortion is, admittedly, a moral issue — but not one that can be settled by theology or by religious authority.

Modern "right to life" issues — abortion and contraception — are nowhere mentioned in either Jewish or Christian Scripture. Pope Pius XI said they were, in his encyclical Casti Connubii (1930), where Onan's "spilling his seed on the ground" (and the reason for his punishment by God) was interpreted as preventing conception and birth. Yet no scholar of Scripture accepts that reading of Genesis 38:9 anymore; it is read as referring to levirate marriage duties. The Vatican now agrees with this interpretation. Even in his own sphere, the revealed word of God, the pope could be wrong.

Some, deprived of the Onan text, say that abortion is forbidden by the scriptural commandment "Thou shalt not kill." But that commandment does not cover all human life. My hair and fingernails, while growing, are alive with my own human life. Semen and ova have human life even before their juncture. They continue to have it after mingling — for example, the fertilized ovum that does not lodge itself in the wall of the womb. Yet no attempt is made to retrieve such "dead" detritus and give it decent burial.

So "right to life" as a slogan is a question-begging term. The command not to kill is directed at the killing of persons, and the issue in abortion is this: When does the fetus become a person? The answer to that is not given by church teaching. Even St. Thomas Aquinas, who thought that a soul was infused into the body, could only guess when that infusion took place (and he did not guess "at fertilization"). St. Augustine confessed an agnosticism about the human status of the fetus.

Natural reason must use natural tools to deal with this question — philosophy, neurobiology, psychology, medicine. When is the fetus "viable," and viable as what? Does personality come only with responsibility, with personal communication? On none of these do the bishops have special expertise. John Henry Newman said, "The pope, who comes of Revelation, has no jurisdiction over Nature."

The evidence from natural sources of knowledge has been interpreted in various ways, by people of good intentions and good information. If natural law teaching were clear on the matter, a consensus would have been formed by those with natural reason. The fact that the problem is unsettled by them does not mean that a theological authority can be resorted to. An invalid authority (theology) does not become valid faute de mieux.

Church authorities have not acted on their own claims. Aborted fetuses, if they are persons, should be baptized, just as infants are, and buried in consecrated ground. But that has not been regular church practice. If abortion kills a person, then the woman who undergoes an abortion should be punished as a murderer — and the worst kind of murderer, a filicide. Church authorities have not demanded such punishment.

"Tradition" does not give an answer where Scripture is silent. Augustine condemned abortion, not because of the status of the fetus, but because it meant that sex was used for reasons other than procreation, which he thought always wrong. He condemned, for that reason, sex after menopause, during infertile periods, during pregnancy — a ban church authorities long ago lifted.

Nothing I have said is a defense of abortion. There are strong arguments from natural reason to oppose it, including a presumption in favor of personhood where the possibility exists. That they are not so strong as to command general assent does not free anyone from the duty of considering those arguments seriously, and of making a decision in conscience based on that consideration.

All I am saying is that the bishops have no special mandate from their office to supplant the individual conscience with some divine imperative. For them to say that this is a matter of theology is, simply, bad theological reasoning. If they, as citizens, wish to express their opinion on the natural-reason arguments, they have every right to do so. But that does not give them the right to deny others the same kind of arguing, on the same grounds. The subject of abortion is not a matter of church-state relations, since the bishops as church authorities have nothing distinctive to contribute to the discussion.

Garry Wills, adjunct professor of history at Northwestern University, is the author of "Why I Am a Catholic."

June 27, 2004 in Perry, Michael | Permalink | TrackBack (1)

Friday, June 25, 2004

Further thoughts on Autonomy, (Not) Separatism

Thank you Rob for clarifying your position. And, I agree with much of what you say, especially: “Catholic teaching's transformative power is most clearly evidenced within the human person, not the legislative corridors. So far from proposing that we separate from society, I propose that we invest ourselves more deeply in it -- we should be targeting the hearts and minds of our neighbors, not with the aim of capturing the mechanisms of collective power, but with the aim of changing lives.”

I want to tease out the arguments and their implications a little further.

First, Rob suggests that “that we seek to turn intolerant liberalism into a conception of governance more in keeping with value pluralism.” This language of “value pluralism” strikes me as a concession to cultural relativism – you have your values and conceptions of the good (common or not) and I have mine, but we mutually agree to give each other a sphere of autonomy to develop our non-privileged conception of the good. This public (as distinct from “state”) viewpoint can allow only a very thin conception of the individual, and ultimately, as I argue elsewhere, cannot, in the long term, support a system that respects the dignity and freedom of the human person. What is needed, IMHO, is a publicly recognized thicker conception of the human person, a realistic anthropology of the human person that will also support a system that respects the dignity and freedom of the human person. Joseph Carens, in his book, “Culture, Citizenship, and Community: A Contextual Exploration of Justice as Evenhandedness, makes a case (at least in my reading of the book) that liberalism develops (and can develop in healthy ways) within cultures that have thick conceptions of the human person so long as a respect and a measure of freedom is provided to those with different visions of the good.

Second, addressing Rob’s points three and four, I agree with him to a large extent. In Paragraph 17 of Gaudium et Spes, the Church says: “It is, however, only in freedom that man can turn himself towards what is good. … For God willed that man should ‘be left to his own counsel’ so that he might of his own accord seek his creator and freely attain his full and blessed perfection by cleaving to him. Man’s dignity therefore requires him to act out of conscious and free choice, as moved and drawn in a personal way from within, and not by blind impulses in himself or by mere external constraint. Man gains such dignity when, ridding himself of all slavery to the passions, he presses forward towards his goal by freely choosing what is good.” Like Rob, and for the same reasons, I view attempts to use state power to limit and/or prohibit abortion as fundamentally different from attempts to use state power to criminally prohibit same-sex sodomy (or contraception, etc).

Third, so often discussion of imposing or proposing Catholic perceptions of the common good center narrowly on whether to seek state sanctioned punishment of specific acts that constitute individual moral weakness or failure. But, as Rob implicitly articulates, there is so much more to the Catholic proposal. In fact, his vision of subsidiarity, grounded in Catholic anthropology, is a proposal that he desires, if I understand him correctly, to have adopted or at least respected by juridical authorities. In his recent post, Vince writes: “Why does American culture see human beings as disposable? Why do we worship material comfort and personal perfection, and damn those who can't keep up or who are inconvenient, to marginalization, despair, and in some cases, death?” Much of the work needed to turn this situation around and build a Culture of Life involves, as Rob points out, non-legal prophetic speaking aimed at changing hearts and lives. But, there is a limited role for Catholic legal theory to propose structures, institutions, and particular laws that will make it easier to see the humanity of others. Se for example, Rick's recent post on the possibilities of the New Urbanism and the unintended effects of suburbanization.


June 25, 2004 in Scaperlanda, Mike | Permalink | TrackBack (0)

Thursday, June 24, 2004

More on the Death Penalty

I wanted to add to Michael Perry's previous post by taking a more pragmatic look at the Church's emergent teaching on the death penalty in light of the political and social realities that exist in the United States. Assume, arguendo, that Church teaching does not forbid the use of the death penalty in certain limited circumstances. Is there any way to argue that the social and political conditions of the United States fit any possible understanding of these limed circumstances? Given that we have one of the highest incarceration rates in the world, the United States seems quite capable of keeping dangerous people in prison. I cannot think of a circumstance in which life in prison without parole (or multiple life sentences) would not provide adequate protection to the public from a criminal in this country, no matter how heinous his or her crime. What, then, justifies the participation of American Catholics in the maintenance, promotion, and extention of a system of capital punishment?

I don't think this situation is as different from abortion as some would like to claim. The foundational principle in both issues is that intentional killing is wrong. There is no exception to this rule that applies to use of capital punishment in the United States, just as there is no exception to intentionally killing a child in utero. To say that abortion is never permissable but because capital punishment might be sometimes, somewhere, in theory it is okay to support candidates and political parities that champion the use of the death penalty strikes me as not seeing the forest for the trees. In this regard, is Justice Scalia really all that different from John Kerry? I don't think so.

Why does American culture see human beings as disposable? Why do we worship material comfort and personal perfection, and damn those who can't keep up or who are inconvenient, to marginalization, despair, and in some cases, death?


June 24, 2004 | Permalink | TrackBack (0)

More on the Church and Capital Punishment

This posting is a followup to my posting on June 12, 2004, about the Church and Capital Punishment.

In Lent of this year, 45 U.S. Catholic bishops from 12 southern states issued the fourth of their planned six statements on criminal justice. For the statement, see 34 Origins 63-64 (June 10, 2004).

The bishops begin by quoting a November 2000 statement of the U.S. Catholic bishops: "We are guided by the paradoxical Catholic teaching on crime and punishment: We will not tolerate the crime and violence that threaten the lives and dignity of our sisters and brothers, and we will not give up on those who have lost their way. We seek both justice and mercy...." (Emphasis added.)

The 45 bishops then declare, later in their statement: "A Catholic approach never gives up on those who violate laws. We believe that both victims and offenders are children of God. Despite their very different claims on society, their lives and dignity should be protected and respected. We seek justice, not vengeance. We believe punishment must have clear purposes: protecting society and rehabilitating those who violate the law...."

If anyone thinks that capital punishment can be reconciled--even if only "in principle"--with "not giving up on those who have lost their way", please indicate how it might be done. If anyone thinks that capital punishment can be reconciled--even if only "in principle"--with what the 45 bishops call the "Catholic approach" of "protecting and respecting" the lives of the offenders (as well as those of the victims), please indicate how it might be done.

Let me say again that as between, e.g., John O'Callaghan (Notre Dame, Philosophy) and E. Christian Brugger, Brugger seems to me to offer the more compelling reading of John Paul II's present theology, and of the Church's emergent theology, of capital punishment. (The 45 bishops are surely not out in front of John Paul II on this issue, are they?)

I worry that for too many, the position that there is there is room for prudential disagreement among Catholics with respect to the morality of capital punishment but not with respect to the morality of abortion is little more than an instance of politically inspired wishful thinking. Cf. Justice Scalia's statement that he is happy that opposition to capital punishment is not mandatory for Catholics because that would disqualify Catholics from being judges and "I like my job."

John Kerry supports, if not abortion, "abortion rights". George Bush supports (to say the least) capital punishment. What is a conscientious Catholic voter to do? I understand that Cardinal Ratzinger has said in a letter to the U.S. Catholic bishops that it would be wrong to back a candidate specifically because he or she supported abortion rights; but, according to Cardinal McCarrick, Ratzinger also "left open the possibility that a voter could legitimately decide to support a pro-abortion candidate, based on that person's overall platform."


June 24, 2004 in Perry, Michael | Permalink | TrackBack (1)

Autonomy, Not Separatism

In light of Michael Scaperlanda's thoughtful response to my previous post, I'd like to clarify what I mean when I propose that we shift the focus of cultural engagement from top-down impositions of the common good to carving out spheres of communal autonomy in which alternative visions of the good can operate.

First, I agree with Michael that intolerant liberalism cannot allow alternative visions of the good; we see this not only in the newspaper column that sparked my previous post, but in the Catholic Charities case, not to mention even more blatant instances like the French ban on religious garb in schools. I don't propose that we just cloister ourselves and allow this strain of liberalism to run free, but rather that we seek to turn intolerant liberalism into a conception of governance more in keeping with value pluralism. (In this regard, William Galston's value pluralism is more promising than John Gray's).

Second, hesitating to enforce the common good through the imposition of collective norms does not suggest that we separate from society. Indeed, I think cultural engagement can be more robust when those doing the engaging speak prophetically, rather than from the seat of power. Catholic teaching's transformative power is most clearly evidenced within the human person, not the legislative corridors. So far from proposing that we separate from society, I propose that we invest ourselves more deeply in it -- we should be targeting the hearts and minds of our neighbors, not with the aim of capturing the mechanisms of collective power, but with the aim of changing lives.

Third, this conception of the common good is not simply a concession to political reality, but reflects a fundamental premise of subsidiarity, in my view. Subsidiarity calls for the localization of authority in society. For this localization to have any real-world significance, local bodies must have the freedom to defy the surrounding society's conception of the good; otherwise, local bodies are only given power to act as agents of the collective.

Fourth, I do not mean that contested moral questions are never an appropriate subject for state action. Indeed, some contested moral questions can only be answered at the state level. Abortion is an example where the question is not so much whether an individual will be precluded from pursuing alternative visions of the good, but whether certain individuals have standing even to enter into the pursuit of any vision of the good. If we don't answer the question at the state level -- opting instead to give individuals freedom to abort or not abort as they see fit -- that question of standing has already been answered conclusively in the negative.

But on other contested moral questions -- the criminal prohibition on same-sex sodomy, for example -- creating binding legal norms based on one vision of the good is clearly inappropriate, in my view. Bringing the coercive power of the state to bear on citizens who dissent from that vision not only implicates the dignity of those citizens, but it turns subsidiarity into an empty vessel by eviscerating the localizing impetus, validating local authority only to the extent that it comports with an anthropologically authentic conception of the good. Because the validation will hinge on whatever conception of the good is held by those in power, we're back to the problem of subsidiarity as simply a cover theory for the collective to use local agents to pursue its (and only its) vision of the good.


June 24, 2004 in Vischer, Rob | Permalink | TrackBack (1)