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.

Thursday, September 30, 2004

Catholic Identity as Political Hardball

I'm hoping that undecided Catholic voters will not limit their research of the presidential candidates to the predictably less-than-helpful insight offered by the GOP in its website, "Kerry Wrong for Catholics." The site gathers some of the more egregious quotes from Kerry on abortion, but also suggests that Catholics should reject Kerry because he opposed elements of the Bush Administration's homeland security efforts, and because he has taken communion at a Protestant church. Not surprisingly, there's no mention of just war, the preferential option for the poor, the death penalty, etc. I also confess to feeling a bit squeamish as I explored the GOP's "Catholics for Bush" website, which prominently features a "photo album" apparently designed to bolster Bush's Catholic-friendly aura. There are photos of Bush giving a medal to the Pope and plenty of photos of Bush standing with priests and the Knights of Columbus. I generally defend a visible role for religious values and language in our political life, but this struck me as a bit ham-handed. Are we to think that Kerry would refuse a photo op with the Pope? More troubling was the prominence given a photo of Bush praying. I certainly believe that prayer is a valuable element of our politicians' lives, including the public aspects of their lives when events warrant. But deliberately choosing to advertise that fact ("Our President prays in public!") on a campaign website brought to mind Matthew 6:5-6:

When you pray, do not be like the hypocrites, who love to stand and pray in the synagogues and on street corners so that others may see them. Amen, I say to you, they have received their reward. But when you pray, go to your inner room, close the door, and pray to your Father in secret. And your Father who sees in secret will repay you.

Nevertheless, my discomfort with both websites pales in comparison with the revulsion expressed by James Carroll (of Constantine's Sword fame), whose column in the Boston Globe laments the websites' effort to twist Kerry's sincere religious devotion. Carroll portrays the election of Kerry as its own sort of religious contest:

Today, some Catholics, including many bishops, repudiate the theology of the Second Vatican Council, and they are the ones most determined to stop Kerry from being elected. Having a Vatican II Catholic as president of the United States would be a blow against those who hope to roll back the reforms begun at that council. More than that, Kerry's positions on a range of issues, from abortion to the death penalty to the centrality of social justice, mark him not as a renegade Catholic but as one of that increasingly large number of faithful Catholics who understand that moral theology is not a fixed set of answers given once and for all by an all-knowing hierarchy but an ongoing quest for truths that remain elusive.

Needless to say, of all the labels that folks seek to affix to Kerry given his pronouncements on abortion, "Vatican II Catholic" is probably not at the top of the list. But it is Bush himself that pushes Carroll to the brink of reality:

Bush sponsors "faith based" social projects to disguise his agenda of dismantling structures of government that provide basic human needs. Bush cites religion as a way of justifying a politics of exclusion -- wanting America to be a place that bans gay people, keeps women subservient, suspects religious "outsiders" (whether Muslims or atheists). Such religion is the ground of the "us versus them" spirit that defines Bush's foreign policy.

Even in a GOP platform that is, in my view, wildly over the top, I have not seen any reference to banning gays or keeping women subservient. Please correct me if I'm wrong.

Carroll finishes with a flourish of what can only be considered theological malpractice in the cause of political partisanship:

Bush uses religion to justify his penchant for violence, which is manifest in nothing so much as his glib use of the word "evil." Once an enemy is demonized, transcendent risks can be taken to destroy that enemy. We see this apocalyptic impulse being played out in Iraq today. If in order to obliterate "evil" it proves necessary to obliterate a whole society -- so be it. A divinity seen as willing the savage murder of an only son as a way of defeating evil is a divinity that blesses an America that destroys Iraq to save it.

This last sentence, of course, raises some issues bigger than the upcoming election. Is Carroll suggesting that God did not send Jesus as the atoning sacrifice for humankind? Or just that it's an unfortunate truth given its role in justifying future sacrificial violence? And who exactly is using the death of Jesus as an argument for invading Iraq?

In any event, the public square, at least in this election, is assuredly not a religion-free zone. That's a healthy development, albeit an imperfect, frequently messy one.


September 30, 2004 in Vischer, Rob | Permalink | TrackBack (1)

Wednesday, September 29, 2004

Greg Kalscheur, SJ

The October 4th issue of AMERICA was in my mail today--and, hey, there's a nice picture of Greg Kalscheur on the back of the issue, in an ad for Jesuit vocations. Take a look.

September 29, 2004 in Perry, Michael | Permalink | TrackBack (0)

Fundamentals and the Judiciary

Yesterday Justice Scalia gave a speech at Harvard in which he stated that issues like abortion and assisted suicide are "too fundamental" to be decided by the judiciary. I am sympathetic with that view; the problem, of course, is distinguishing those issues from issues that may be "too fundamental" to be left to majority rule. Certainly our embrace of rulings like Brown v. Board of Education may be distinguished as necessary protection for a disfavored minority, but there are less clear grounds for distinction when we advocate for a more robust and unmistakably anti-majoritarian judicial protection of rights of association or religious exercise, for example. Is the ability of Catholic Charities to resist state compulsion to provide contraceptives "too fundamental" for judicial resolution -- i.e., under Scalia's view, shouldn't we let the citizens of California construct their own conception of reproductive freedom? Or shouldn't we let the citizens of New Jersey determine whether the Boy Scouts should be allowed to discriminate based on sexual orientation? The list goes on, of course; the point, I think, is that we have to be careful when we embrace "the people" as the final arbiter of "fundamental" social controversies. Leaving the definition of the common good up to the one-size-fits-all trump of collective determination might prove riskier than it seems.


September 29, 2004 in Vischer, Rob | Permalink | TrackBack (0)

Update on Journal of Catholic Social Thought Conferences

I wanted to bring everyone up to date on the conferences planned by the Journal of Catholic Social Thought this fall at Villanova.

Our conference on "Principles and Practices of Subsidiarity: the Meanings of Subsidiarity for the Law" is the second of our annual conferences on Catholic Social Thought and the Law, and will be held at the Villanova Conference Center on Friday, October 8. Among the speakers are MOJ blogistas Rob Vischer, Paolo Carrozza and yours truly. The four panels are "Subsidiarity and the Liberal State," Subsidiarity and the Bureaucratic State," "Subsidiarity and the Corporation," and "Subsidiarity and Federalism." For an agenda and registration info check here.

Our second conference of the fall is entitled "Catholic Social Teaching and Racism,"and will be held on November 18-19. This is an interdisciplinary conference, including political scientists, theologians, philosophers and sociologists as well as legal academics. Speakers include Albert Raboteau and Douglas Massey of Princeton, Anita Allen and John DiIulio of Penn, Mary Jo Bane of Harvard and other luminaries. This will be an important conference that will demonstrate CST's usefulness for understanding and critiquing racism. For more info check here.

Anyone with questions about these conferences should feel free to contact me.

September 29, 2004 | Permalink | TrackBack (0)

Tuesday, September 28, 2004

More on Human Rights and Mainline Churches

The mainline-dominated National Council of Churches has objected to the Institute for Religion & Democracy's study suggesting anti-Semitism as a possible motivating factor for mainline churches' foreign policy pronouncements. (See Steve's post below for details on the study.) Christianity Today does not find the objections entirely persuasive.


September 28, 2004 in Vischer, Rob | Permalink | TrackBack (2)

Human Rights Commentary by Churches

Via my friend and colleague Eugene Volokh, I learned of a report by the Institute for Religion & Democracy on Human Rights Advocacy in the Mainline Protestant Churches. Herewith an excerpt:

Research Design
We analyzed human rights criticisms made by four mainline Protestant denominations (the United Methodist Church, the Evangelical Lutheran Church in America, the Episcopal Church and the Presbyterian Church U.S.A.) and two ecumenical bodies (the National Council of Churches and World Council of Churches) over a period of four years (2000-2003) to determine which nations were criticized for human rights violations and why. We used the 2004 human rights assessments published by Freedom House as a benchmark for human rights in nations analyzed. A given church statement or document was considered to have criticized human rights in country X when, in the context of a discussion of human rights in country X, it passed negative judgment on specific current policies or actions of the government of X.
Overall, criticisms of Israel amounted to 37 percent of the 197 human rights criticisms offered by the churches during those years, only slightly higher than the 32 percent of criticisms leveled at the United States. The remaining 31 percent of criticisms were shared by twenty other nations. For every one criticism of any other foreign nation, one criticism was made of the United States and one of Israel. Nearly all churches demonstrated this focus on the United States and Israel in their legislative actions, their statements, their news sources, or all three.
As a result, nearly three out of four human rights criticisms were made of nations designated as free (mostly the United States and Israel) by the Freedom House assessments. Those rated not free totaled 19 percent of criticisms, while partly free nations totalled only 8 percent of criticisms. Of the fifteen worst human rights offenders in the world, only five were criticized by the churches during the four year period studied.
Regions like the Middle East (apart from Israel) and Central Asia (former Soviet republics) were the most notable areas ignored by the churches in their human rights advocacy. Partly free nations, where church influence might be most effective in widening the limited civic space already open to indigenous Christians and other citizens, received the least attention.
The 40-odd page report is well worth reading; it makes a pretty damning document. Not surprisingly, the authors of the report infer that anti-Jewish animus explains at least part of what's going on. In doing so, they rely a little too much for my taste on anecdotes rather than the raw data. Personally, by analogy to the legal concept of disparate impact, I'd be prepared to draw that inference from the data even without the supporting anecdotes. If anything, the anecdotes thus serve to provide ammunition for discrediting the report.

In any case, as someone who crossed the Tiber from one of the mainstream churches studied in this report, I must say I'm not surprised. In my experience, dealing with the bureaucracy of the PCUSA was more like dealing with a bunch of left-leaning politicos than people of faith. As the report suggests, at least part of the problem stems from the moral relativism and political correctness that pervades these denominations:

Without a strong sense of absolute moral standards based on the Scriptures and natural law, these church leaders may not be intellectually equipped to counter the self-serving arguments of dictators. By contrast, they feel more confident in criticizing the United States and Israel because those two nations share a common liberal democratic culture that values human rights, and therefore both can be subjected to criticism under the standards of that culture.
One of the things that most attracted me to Catholicism was the confident belief in moral absolutes expounded by church leaders like Pope John Paul II and Cardinal Ratzinger. Having said that, however, I do see a lot of political correctness in many parishes and dioceses. Indeed, some of what I see resembles the report's description of attitudes among mainstream Protestant church leaders:
Mainline church leaders often look for a U.S.-supported or -imposed government which oppresses a people. In the case of Israel, the template seems to fit the situation. Mainline church leaders see Israel as a bastion of Western imperialism, supported by U.S. funds and foreign policy. They see the Palestinians as the people oppressed by the policies of both Israel and the United States. This is not, however, the pattern that generally emerges in most conflicts, which is possibly why situations like those in China, North Korea, Burma, or Central Asia—to note just a few examples—generally receive little attention. When U.S. policy cannot be blamed, the mainline denominations seem less interested in speaking up for the victims. ... This template is, in fact, anti-American in its assumptions. It sees American intervention overseas as inherently destabilizing and conflict-generating. It assumes American foreign policy to be driven primarily by colonialist, imperialist, or capitalistic motivations. And it rejects without due consideration the public justifications offered by the U.S. government for its policies.
It would be fascinating to see a comparable study of Vatican and UCCB pronouncements. Does our Church exhibit the same bias in its pronouncements as the mainstream Protestant churches? And, if so, why?

September 28, 2004 | Permalink | TrackBack (0)

Monday, September 27, 2004

The Role of Theology in Developing the Corporation

I just finished reading a very interesting paper by USC law and economic professor Timur Kuran, Why the Islamic Middle East Did not Generate an Indigenous Corporate Law.

ABSTRACT: Classical Islamic law recognizes only natural persons; it does not grant standing to imagined, juristic persons. This article identifies self-reinforcing processes that kept Islamic law from developing a concept of legal personhood indigenously. Community building being central to Islam's mission, the early promoters of Islam had no use for a concept liable to facilitate factionalism. In subsequent centuries the typical Muslim-owned commercial or financial enterprise was too small, and too limited in scope, to justify lobbying for advanced organizational forms; and Muslim rulers made no attempt to supply the corporate form of organization, because in the absence of merchant organizations they saw no structures worth exploiting for their own ends.
The argument is quite interesting in general, but I found it especially useful because it addresses some work I've been doing on the role theology played in the development of the modern Western corporation. Today, of course, we regard the corporation's legal personhood as little more than a useful legal fiction. But where did the concept of a juristic person come from? I believe that the Christian doctrine of the Church as the Bride of Christ made it possible to conceptualize an entity that initially had a morally and then later a legally cognizable existence separate and distinct from its members. The question, of course, is whether this history (assuming I'm right) has any continuing legal content other than being a useful fiction. At the moment, I'm not convinced it does. Concepts of a real corporate personhood strike me as far too mystic to be useful in legal scholarship. But I'm prepared to be corrected.

September 27, 2004 | Permalink | TrackBack (0)

Sunday, September 26, 2004

The (Increasingly Catholic) Evangelical Mind

In the current issue of First Things (article not available on-line), Mark Noll, perhaps the leading evangelical scholar today, revisits the thesis of his landmark book, The Scandal of the Evangelical Mind. Ten years after its publication, Noll writes that he is "more hopeful now about Christian thinking by evangelicals." "Because evangelicals tend to disregard tradition," Noll explains, "we are liable to miss the rich contributions that other strands of faithful believers have made to interpreting and applying the multitudinous biblical words that are so potent for the life of the mind. But this can change." The first "source of hope" Noll points to in this regard is "the increasing engagement between evangelicals and Roman Catholics," which has "contributed dramatically to improved evangelical use of the mind":

The exchange between these two traditions is probably more important to Catholics for reasons other than intellectual, but the life of the mind is where evangelicals benefit most. While evangelicals offer Catholics eagerness, commitment, and an ability to negotiate in a culture of intellectual consumerism, Catholics offer evangelicals a sense of tradition and centuries of reflection on the bearing of sacramentality on all existence.

Whenever evangelicals in recent years have been moved to admonish themselves and other evangelicals for weaknesses in ecclesiology, tradition, the intellectual life, sacraments, theology of culture, aesthetics, philosophical theology, or historical consciousness, the result has almost always been selective appreciation for elements of the Catholic tradition.

Noll's optimism is tempered, though, by his recognition that "common, generic evangelicalism and the activist denominations that make up evangelicalism do not possess theologies full enough, traditions of intellectual practice strong enough, or conceptions of the world deep enough to sustain a full-scale intellectual revival." Perhaps in acknowledgment of the substantive indictments that tend to be made across the evangelical/Catholic divide, he reminds us that "tradition without life might be barely Christian, but life without tradition is barely coherent."


September 26, 2004 in Vischer, Rob | Permalink | TrackBack (5)

"The Autonomist Manifesto"

Regular MOJ readers know that several of us are interested in questions of urban planning, land-use policy, etc. So, consider spending a few minutes with this article by John Tierney in today's New York Times magazine: "The Autonomist Manifesto (Or, How I Learned to Stop Worrying and Love the Road)".

The article is a gold mine, and includes discussions of some really interesting things being done with highway design, toll-road policy, etc. -- particularly in San Diego.

Here's a quote:

Americans still love their own cars, but they're sick of everyone else's. The car is blamed for everything from global warming to the war in Iraq to the transformation of America into a land of strip malls and soulless subdivisions filled with fat, lonely suburbanites. Al Gore called the automobile a ''mortal threat'' that is ''more deadly than that of any military enemy.'' . . .

I sympathize with the critics, because I don't like even my own car. For most of my adult life I didn't even own one. I lived in Manhattan and pitied the suburbanites driving to the mall. When I moved to Washington and joined their ranks, I picked a home in smart-growth heaven, near a bike path and a subway station. Most days I skate or bike downtown, filled with righteous Schadenfreude as I roll past drivers stuck in traffic. The rest of the time I usually take the subway, and on the rare day I go by car, I hate the drive.

But I no longer believe that my tastes should be public policy. . . .

Like Tierney -- and like many other academic / "BoBo" / Jane Jacobs-loving types -- I prefer smaller, older houses; sidewalks; mixed-use development; density; etc. I also find mind-numbingly tedious the hectoring of many "anti-sprawl" types, whose opposition to suburbs seems to stem as much from snobbery toward "those people" who live in them as it does from real data or a principled embrace of a strong community ethos. Tierney challenges many assumptions -- particularly unexamined environmentalist dogmas like "we are losing too much farmland", or "commute times are getting longer and longer" -- that are not challenged often enough.

Discussing a group of theorists he calls the "autonomists", Tierney writes:

These thinkers acknowledge the social and environmental problems caused by the car but argue that these would not be solved -- in fact, would be mostly made worse -- by the proposals coming from the car's critics. They call smart growth a dumb idea, the result not of rational planning but of class snobbery and intellectual arrogance. They prefer to promote smart driving, which means more tolls, more roads and, yes, more cars.

Drawing on authorities ranging from Aristotle to Walt Whitman, the autonomists argue that the car is not merely a convenience but one of history's greatest forces for good, an invention that liberated the poor from slums and workers from company towns, challenged communism, powered the civil rights movement and freed women to work outside the home. Their arguments have given me new respect for my minivan. I still don't like driving it, but now when the sound system is blaring ''Thunder Road'' -- These two lanes will take us aaanywhere -- I think Bruce Springsteen got it right. There is redemption beneath that dirty hood.

If I remember correctly, Alan Ehrenhalt made a similar point in his wonderful book, "The Lost City: The Forgotten Virtues of Community in America."

Now, I would not endorse the argument that "because automobiles and sprawl both reflect and enable autonomy, automobiles are therefore good." Still, I'm chastened by observations like this:

Intellectuals' distaste for the car and suburbia, and their fondness for rail travel and cities, are an odd inverse of the old aristocratic attitudes. The suburbs were quite fashionable when only the upper classes could afford to live there. Nineteenth-century social workers dreamed of sending crowded urbanites out to healthy green spaces. But when middle-class workers made it out there, they were mocked first for their ''little boxes made of ticky-tacky'' and later for their McMansions. Land Rovers and sports cars were chic when they were driven to country estates, but they became antisocial gas-guzzlers once they appeared in subdivisions.

I'd welcome others' reactions. . . .


September 26, 2004 | Permalink | TrackBack (1)

Saturday, September 25, 2004

More on Catholic Health Plans

Chiming in about today's story in the New York Times about Catholic-friendly health-care plans: Right up there, in the "silliness" department, with Ms. Kissling's complaint about "substandard" care (see Rob's post below), is this nugget from Representative Pete Stark: "Medical care is a science. Getting medical care and religion mixed together is just as bad as getting church and state mixed together."

Of course "medical care is a science." But "science" is never just science: Questions about, for example, what constitutes "medical care", about what "science" should or may do, about how to deliver and fund "medical care", etc., are precisely the kinds of questions to which religion speaks. And, to pretend that questions about the application, conduct, and distribution of "science" are themselves merely technical, scientific questions is, well, silly.

On another front, I suppose these plans will soon be challenged on the ground that they impermissibly "endorse" or "advance" religion, and are not simply permissible (and praiseworthy) "accommodations" of faith.


September 25, 2004 | Permalink | TrackBack (0)