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.

Wednesday, December 29, 2004

Tsunamis and the Moral Anthropology: Paths of Reconciliation

In addition to Susan's and Rick's posts, I've received many thoughtful responses to my earlier post on the seemingly inescapable tension between a theologically grounded moral anthropology and the tsunamis in Asia. Ralph the Sacred River directs our attention to the following quote from Richard Swinburne:

A theodicist is in a better position to defend a theodicy such as I have outlined if he is prepared also to make the further additional claim — that God knowing the worthwhileness of the conquest of evil and the perfecting of the universe by men, shared with them this task by subjecting himself as man to the evil in the world. A creator is more justified in creating or permitting evils to be overcome by his creatures if he is prepared to share with them the burden of the suffering and effort.

Patrick O'Hannigan at the Paragraph Farmer offers a string of worthwhile observations, and then challenges the premise of my post:

Earthquakes are neither moral nor immoral, and to ask whether God is "culpable" for them is to presume a prosecutorial stance that didn't work for Job and won't work for us, either. Moreover, the Christian worldview is anchored in the person of Jesus; it's not an abstraction subject to disproof by tidal waves, Nazis, Stalinist famine, molested children, or shocking numbers of legally aborted babies.

Live By Not Lies suggests that:

In each of Vischer’s models the basic assumption is that God’s role is to keep us safe and prosperous. Yet, that makes God subject to us. He becomes the one who fulfills our needs and wants. When he does not do this then God in that model is not being God. God becomes dead as Nietzche says he is. Yet, when we understand the teachings of Jesus, we see that his message was not one of telling us who God is, as much as telling us who we are in light of the existence of God.

John DiGregorio focuses on the far-reaching consequences of free will, proposing that:

one of the consequences of Original Sin was the loss of our ability to understand how to live on the home God created for us. My guess is that earthquakes rumbled and volcanoes erupted and tornadoes spun wildly before The Fall, but human creatures, still living in the beatific vision, understood how to live with these natural phenomena. How? I can't imagine. I'm too filled with concupiscence to properly imagine Paradise. Why would God allow the decision of one man, Adam (who was probably one of many men), to bring death (even the death of complete innocents) permanently into the world? I think God takes the true freedom he gives us very seriously and there is no true freedom without true, and lasting, consequences--both for good (when we follow God's will) and for bad (when we choose to sin).

Teresa Collett wisely recommends John Paul II's apostolic letter on suffering. Not suprisingly, C.S. Lewis and Peter Kreeft are other sources of wisdom commonly cited in the responses.

None of these are likely to do the heavy lifting demanded by those who do not find faith in God to be otherwise tenable, but they may help illuminate the path of reconciliation for those who know both God and tsunamis to be unmistakable elements of their lived realities.


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

Tuesday, December 28, 2004

Recommended Reading

In the current issue of the Journal of Law and Religion, John Coons has an interesting, insightful review of Jeremy Waldron's God, Locke, and Equality (Cambridge, 2002).  The cite:  19 J. L. & Rel. 491-98.  Coons is professor of law emeritus at UC Berkeley--and, with our co-blogger Patrick Brennan, author of By Nature Equal:  The Anatomy of a Western Insight (Princeton, 1999).

Michael P.

December 28, 2004 | Permalink | TrackBack (0)

Solum on Posner on Religion

Over at the Legal Theory Blog, Larry Solum has posted some eminently click-on-the-link-worthy reactions to Judge Posner's thoughts on religious arguments in public life -- and, in particular, to Posner's take on Rawls and "public reason."  Take a look.


December 28, 2004 | Permalink | TrackBack (0)

In the British Museum?

I agree with what appear to be the points of agreement between Mark and Rick. The issue isn't just Catholics borrowing from and benefiting from "law & econ" -- it's Catholics saying in the first place that the human vocation requires Catholics to specialize in, among other things, economics, and then doing that work in economics in ways that advance the fundamental concerns Christians have for life in this world (which, apparently, has something to do to advancing to the next).  From Fred Lawrence's introduction to Longeran's Macroeconomic Dynamics (at p. lxxi):  "Lonergan's deeply Christian anthropology sets his approach to democracy apart from the secularism of both liberalism and socialism.  He had no doubt that God is at work in human history bringing about a divine solution to the problem of moral evil.  But as a theologian he also thought this supernatural solution can only be fully transformative of human history with our free cooperation in the form of human creativity.  Such creativity entails understanding the economic mechanism as both independent of and subordinate to the political domain.  In his classses Lonergan often expressed his dissatisfaction with social ethicists' tendency to be content with 'vague moral imperatives' instead of figuring out how moral precepts can be derived from the immanent intelligibility of economic processes.  So he often asked, Where were the Christian counterparts to the 'crazy old man' Karl Marx, sitting in the British Museum voraciously reading and relentlessly studying about political economy?"  (I think I have some answers to that rhetorical question, and they include stonewalling).  Catholics' special contribtions will include insisting that the economy serve people's true goods rather than merely satisfy their preferences.   

December 28, 2004 in Brennan, Patrick | Permalink | TrackBack (0)

Mark's Reply about Law and Economics

I appreciate Marks' detailed response to my thoughts about "law and economics," and I am happy to say that I agree (I think!) with every thing he says.  Mark says, for example:  "The difficulty . . . is the radical extension of economic concepts such as utility maximization, rational choice and social welfare as prescriptive, normative devices into the traditional province of political philosophy and jurisprudence."  I would add, by way of friendly amendment, only that the word "radical" is important here.  That is, it seems to me quite appropriate for "economic concepts such as utility maximization, rational choice, and social welfare" to enter conversations in the "traditional province of political philosophy and jurisprudence"; these concepts should not supplant those conversations, though.

Perhaps Mark disagrees, but it does strike me that concepts like efficiency and cost-effectiveness do have important moral content, in this sense:  In a world (like ours) of scarcity, and given our obligations to good stewardship and solidarity, it is not only unwise, but also wrong, to badly misuse or waste resources.  (This is true not only when we are talking about environmental policies, but also about legal rules and doctrines).  If the tools of "law and economics" -- and that is all they are -- can help us avoid this wrong, then it seems to me that we should welcome and employ them.

Again, Mark and I are on the same page, when he states, that the "determined refusal to meditate upon ends . . . distinguishes th[e] prescriptive, normative aspect of the law and economics enterprise from the tradition of which Catholic legal theory is a part."  My suggestion is only that our Catholic enterprise -- which does "meditate on ends" -- nonetheless not only may, but should, employ law-and-economics in the way and for the reasons discussed above.  One implication of this claim, I think, is that a Catholic law school should not avoid or belittle "law and economics", but should instead try hard to produce lawyers and scholars who know "law and economics" -- and its limits.


December 28, 2004 | Permalink | TrackBack (0)

Theodicy and Tsunamis

Here is an essay, "How Can Religious People Explain Something Like This?", in the Guardian, that tackles the question to which Rob and Susan have been speaking.  The author, Martin Kettle, asks:

[I]t is hard to think of any event in modern times that requires a more serious explanation from the forces of religion than this week's earthquake. Voltaire's 18th-century question to Christians - why Lisbon? - ought to generate a whole series of 21st-century equivalents for all the religions of the world.

Certainly the giant waves generated by the quake made no attempt to differentiate between the religions of those whom it made its victims. Hindus were swept away in India, Muslims were carried off in Indonesia, Buddhists in Thailand. Visiting Christians and Jews received no special treatment either. This poses no problem for the scientific belief system. Here, it says, was a mindless natural event, which destroyed Muslim and Hindu alike.

A non-scientific belief system, especially one that is based on any kind of notion of a divine order, has some explaining to do, however. What God sanctions an earthquake? What God protects against it? Why does the quake strike these places and these peoples and not others? What kind of order is it that decrees that a person who went to sleep by the edge of the ocean on Christmas night should wake up the next morning engulfed by the waves, struggling for life?

From at least the time of Aristotle, intelligent people have struggled to make some sense of earthquakes. Earthquakes do not merely kill and destroy. They challenge human beings to explain the world order in which such apparently indiscriminate acts can occur. Europe in the 18th century had the intellectual curiosity and independence to ask and answer such questions. But can we say the same of 21st-century Europe? Or are we too cowed now to even ask if the God can exist that can do such things?

I agree with Kettle that we are all obligated to take seriously the challenges that real-world-facts present to even our most cherished beliefs.  And, it would take an awfully uncurious Christian to pretend that death-dealing disasters like this week's tsunamis do not raise questions and even doubts.  At the same time, it seems to fair to ask that those, like Mr. Kettle, who challenge Christians, on the occasion of such disasters, to re-examine their foundational beliefs in a benign, personal, providential God be no less willing to look critically at their own foundational premises, which might -- on examination -- prove no less vulnerable in the face of the hard "facts."


Update:  Here is another take -- from a blogger who is "worr[ied]" about the MOJ bloggers -- writing in response to Rob's post.

Update:  Amy Welborn also links to Rob's post, and there are lots of comments.

December 28, 2004 | Permalink | TrackBack (1)

Response to Rick: Throwing the Law & Econ Baby Out With the Dishwater?

Rick raises the interesting question of whether I am throwing the (useful) Law & Econ baby out with the dishwater. I guess I need to be more precise about what aspect of Law & Econ I see as in conflict with the intellectual tradition of which Catholic Legal Theory is a part. I certainly have little quarrel with the descriptive, analytical elements of economics. Many of those elements -- the concept of efficiency, rent-seeking, the principal-agent problem, the prisoners's dimemma etc. -- "ought to be in the toolkit of any self-respecting social or political theorist," as the political philosopher Don Herzog has put it. And certainly there is nothing in the Aristotelian-Aquinian tradition which would preclude the appropriate use of such concepts. There is indeed nothing Catholic about inefficiency (although those of us in Catholic universities may wonder!). The difficulty, however, is the radical extension of economic concepts such as utility maximization, rational choice and social welfare as prescriptive, normative devices into the traditional province of political philosophy and jurisprudence. Many others have criticized severely the accuracy of the utility maximization principle as a means of modeling human behavior(see, eg, Amartya Sen, "Rational Fools: A Critique of the Behavioral Foundations of Economic Theory," 6 Phil & Pub. Affairs 317 (1977)), so I won't belabor that here (though, see also, Don Herzog, "Externalities and Other Parasites". 67 U. Chi. L. Rev. 895 (2000), "[T]here is no reason to cast utility maximization, or preference satisfaction or the methodical pursuit of self interest, or any such category as the really real, the motor driving human action.") What I want to point out is that economics' assumption that ends (or preferences) are essentially irrelevant, or matters of indifference, and that all that matters is finding ways of satisfying preferences efficiently, is what flies in the face of our tradition, particularly when the assumption is applied to legal problems outside of market contexts. And L & Econ theorists are entirely aware of this conflict, indeed they trumpet it. See for example, Louis Kaplow and Steven Shavell, Fairness Versus Welfare (2002), where it is argued that the pursuit of morally-based notions of fairness rather than welfare results in a pernicious reduction of individuals' well-being (or utility), and sometimes results in everyone being worse off (in terms of their own utility). Posner's critique of Rawls and Dworkin and other academic philosophers I think shares some of this, as does the argument he makes in the Leiter post quoted by Mike Perry below. All the things Posner lists are disfavored, not because they are intrinsically bad or evil, but because there are social norms or conventions that have defined them as such. In economist's terms, they are just preferences shared by lots of people. It is this determined refusal to meditate upon ends that distinguishes this prescriptive, normative aspect of the law and economics enterprise from the tradition of which Catholic legal theory is a part. I'm not making an argument here about which is right or wrong. I am just saying they are different, and that this difference is not obliterated by the usefulness of many economic concept as tools of analysis. I agree with Rick on their usefulness, but that does not diminish my sense of conflict on a different level.


December 28, 2004 | Permalink | TrackBack (0)

Economics or Christology?

For what it's worth:  When Bernard Lonergan came to decide how to spend his last intellectually productive years, he was deciding between Christology and economics, the latter of which had been an interest of his for four decades.  The result of the decision he made is volume 15 in Collected Works of Bernard Lonergan: Macroeconomic Dynamics: An Essay in Circulation Analysis.  Some of his earlier work in economics is collected in vol. 21 of the CW: For a New Political Ecomony.  In part II ("Healing and Creating in History") of vol 15 (at p. 105) Longergan writes: "If we are to escape [the collapse of our civilization], we must demand that two requriements be met.  The first regards economic theorists; the second regards moral theorists.  From economic theorists we have to demand, along with as many other types of analysis as they please, a new and specific type that reveals how moral precepts have both a basis in economic process and so an effective application to it.  From moral theorists we have to demand, along with their various other forms of wisdom and prudence, specifically economic precepts that arise out of economic process itself and promote its proper functioning."  What made Lonergan's particular approach to economics possible and exigent, he explained, was his discovery that the Thomistic tradition he inherited had been closed and static; Lonergan's economics has as its aim the expansion of being in (salvation) history.  For Lonergan, any adequate Christian political theory must include an economics aimed at efficient creation and just distribution of all the goods necessary for human life and increase.      

December 28, 2004 | Permalink | TrackBack (0)

A Response (or at least some thoughts) to Rob

I've spent a lot of time thinking about the tsunami disaster over the last day or so, which, as Rob suggest in his reference to the Christmas season, is particularly poignant as we gaze upon the creche, and even more so today as we celebrate the feast of the Massacre of the Innocents.  (More than 10,000 of those killed....probably a lot more....have been children.)

Rob's post says if we want our project to be taken seriously we must try to offer an explanation of a world in which tsunamis rip children from their mother's arms.  I'm not sure it is possible to offer an explanation that would be accepted by the critics.

It is true, as Rob suggests, that many people view an appeal to the mystery of God as a cop-out.  Yet part of understanding and accepting that we are creations of God is understanding and accepting that we are not God and that there are things we will never understand.  Things like this disaster may fall into that category. (If there is a better answer to this than mystery of God, I've yet to find it.  Death, disease and destruction that are the product of individual and group sin are easy to understand.  I don't know how to make sense of this and I agree with Rob's criticism of the other common response about creation falling with humanity.  If others have better explanations, I'll be grateful to hear their thoughts.)  Part of God's invitation to us is: will you walk with me even if you don't understand. 

Now, I fully accept that is difficult to make the foregoing persuasive to someone without belief.  But the reality is what it is, and we can't simply make up something more acceptable.

I don't think, however, that the fact that natural disasters cause the death of many people prevents us from insisting on the theologically grounded dignity of the human person.  Our dignity comes from being created in the image of God, and our creation in God's image is not changed by the fact that God lets innocents be killed, as God allowed God's own innocent Son be killed.  And God weeps along with us at their deaths and at the suffering of those left behind.


December 28, 2004 in Stabile, Susan | Permalink | TrackBack (0)

Tsunamis and the Moral Anthropology

The tsunamis that have spawned mind-boggling human suffering across Asia represent perhaps the most difficult challenge to the anthropological presumptions driving the project that we've undertaken on Mirror of Justice. How can we insist on the theologically grounded dignity of the human person when the natural order itself appears to defy such dignity? Nature's challenge is especially poignant during this Christmas season, as the divine concern for humanity promised by the Incarnation seems relatively meaningless given the utter absence of concern embodied in the shifting of the earth's plates deep under the ocean.

Clinging to a belief in an all-knowing, all-powerful, all-good deity appears hopeless in the wake of these deadly waves. Invoking human free will offers little help, as the earthquake (unlike all war, much famine, and many diseases) is not causally related to any human act or omission. Chalking it up to the mystery of God is understandably seen as a cop-out. Another common response is to insist that creation fell along with humanity, and this world is obviously not as God desired. But why would God have wired the earth itself to unleash death and destruction once humanity rejected Him? Murder is a human creation; plate tectonics are not. Is not God culpable for earthquakes? And if God is culpable, is not the entire Christian worldview proved to be the illogical relic portrayed by critics?

It seems to me that if we want a moral anthropology rooted in the Incarnation to be taken seriously, we must try to offer an explanation of a world in which tsunamis rip children from their mothers' arms. This is an age-old question, but it must lie at the heart of any effort to engage a culture made skeptical of our "Catholic legal theory" project, at least in part, by pervasive human suffering seemingly caused by the God we embrace.

So I'll ask readers and co-bloggers: What do we have to say for God (and ourselves)?


December 28, 2004 in Vischer, Rob | Permalink | TrackBack (1)