Mirror of Justice

What Would Aquinas Say ... About Posner?

Here is an except from what Richard Posner says today in his first posting as guest blogger for Leiter Reports:

"Well, much or even most morality seems based, rather, on instinct, emotion, custom, history, politics, or ideology, rather than on widely shared social goals. Think of the absolute prohibition of infanticide in contrast to the far more tolerant view of even late-term abortions. Think of the prohibition of bullfighting, cock fights, and cruelty to animals generally. Think of the rejection in our society of the Islamic punishment code, public nudity, polygamy, indentured servitude, chain gangs, voluntary gladiatorial combat, forced redistribution of wealth, preventive war, torture, the mutilation of corpses, sex with corpses, sex with nonobjecting animals, child labor, duelling, suicide, euthanasia, arranged marriages, race and sex discrimination. Are there really compelling reasons for these unarguable tenets of the current American moral code? One can give reasons for them, but would they be anything more than rationalizations? They have causes, that history, sociology, or psychology might elucidate, but causes are not reasons."

Michael P.

"Our project" and Law & Econ

Mark beat me to the punch (below), and has called MOJ readers' attention to Judge Posner's post on religious arguments in politics.  I appreciate Mark's comments, and look forward to others'.  Mark concludes with a question-and-comment:

What . . . would Posner make of our project? I think there is a fundamental conflict between [Catholic legal theory and?] law & economics (pace Steve Bainbridge), whether the Posnerian pragmatic version or the many utilitarian versions, because the basic assumption is that meditation upon the nature of the good is a fool's errand, and certainly unrelated to the way people actually behave, and that the best we can do is maximize welfare, ie peoples' preferences. This seems to me fundamentally at odds with the Artistotelian/Aquinean tradition of which both Catholic moral theology and Catholic Social Thought are a part, and on which we must draw in formulating a Catholic understanding of law.

I hope Mark will correct me if I was mistaken in assuming that the "fundamental conflict" he identifies is, in fact, between "law & economics", on the one hand, and Catholic legal theory, or Catholic social thought, on the other.  I could not agree more with Mark that the "Artistotelian/Aquinean tradition" is and must be at the heart of our project, as is "meditation upon the nature of the good."

But . . . it is not clear to me (as it seems to be to many Catholic thinkers) that "law and economics" is in "fundamental conflict" with this tradition, or with such meditation.  Yes, "law and economics" can pull us down the wrong track, when practitioners purport to move from (a) the fact that economic analysis is not about the good, but about efficient ways to maximize utility and satisfy preferences, to (b) the conclusion that law is not about the good.  But there is more (much more, I think) to "law and econ" than this. 

What's more, I think it is imperative that Catholics (and others who want to keep "the Good" -- and not just goods -- at the heart of the conversation) engage with, and in, "law and economics."  It is, I believe, a mistake for Catholics (of any "stripe") to write off this methodology.  In my view, there is nothing virtuous, or Catholic, about waste and inefficiency.  To be sure -- our moral commitments to solidarity, subsidiarity, etc., will and should often lead us to sacrifice efficiency, or to eschew wealth-maximization, in order to do right and achieve the Good.  But even the hardest of hard-core Catholic Social Democrats should, all things being equal, prefer smart, efficient, and effective policies and doctrines to ones that -- however well-intended or nice-sounding -- turn out to be wasteful and ineffective.  "Law and economics", well practiced, can -- it seems to me -- help us to be better stewards, and therefore better promoters of the common good.

But Mark and Steve B. can set me straight. . . .

Rick

Governor George W. Bush and the Death Penalty

Sister Helen Prejean, author of Dead Man Walking, has written a very disturbing essay--"Death in Texas"--about Governor Bush's (and Albert Gonzales's) record with respect to capital punishment.  (Notice, in the essay, the way Bush responds to a plea from Pope John Paul II to commute the death penalty imposed on Karla Faye Tucker.)  Click here to print/read the essay.

Michael P.

Of Blurbs and Books

This is the blurb I wrote for the back cover of Steve's Smith's new book, Law's Quandary:

"Smith's treatment of the issues he addresses is outstanding.  His discussion is consistently probing, thoughtful, and imaginative.  Smith's range of reference is impressively broad--yet I never had the sense that he was trying to impress.  His clarity--aided by his wonderfully engaging, and occasionally humorous, conversational style--is exemplary.  But the enviable clarity/accessibility of Smith's writing should not obscure just how penetrating--I am tempted to say, brilliant--his commentary is.  It may sound faintly ridiculous to say this, but I thought that this book was a jurisprudential page turner."

Michael P.

Quandary Sings

I've just finished re-reading Steve Smith's Law's Quandary, and I can echo the enthusiasm of John Garvey's quote on the book's dustjacket: this is one of the best studies in jurisprudence I've read in a long time.  (The other blurb on the jacket is by Michael Perry, and it, too, is just in its praise).  I'd say Smith has hit the real nerve of the fundamental challenge facing Catholics doing general jurisprudence today (and well as for others committing lesser included offenses).  Smith's mark is the "ontological gap," an unpaid debt of our legal practice that he earlier identified and searched, in somewhat different terms, at (among other places) 40 Boston College Law Review 1041 (1999): "Believing Like a Lawyer."  What he's about exposing is the metaphysics our quotidian legal practice implicitly affirms and depends on while mainstream legal theory denies the same (and so much more).  With the accustation of an "ontological gap" Smith fingers all the legal reality of which (according to Swift v. Tyson, for example) what the (wise) judges decide is (exactly) evidence.  Smith chases the rabbit to its hole/hat.  Which of the two is it?  Smith's own reaction to what he has done to the rabbit includes cautious but acute invocation of the work of U. of Michigan's professor Joseph Vining concerning how (we) practitioners of Anglo-American law can and do get beyond the (pseudo-)problem of the ontological gap.  I'm less confident than some that the Aristotelian-Thomistic tradition, as cast in the Suarezian and post-Suarezian terms that come down to us in the main, is the right way to go to solve the (real) contemporary problem Smith identifies, let alone that we "must" go there.  My own view is that the working out of a critical realism (a la Bernard Lonergan SJ) is necessary to reverse the ontological sting inflicted by legal realism, etc.  Many of the conclusions reached from the stance of critical realism will, I think, be the same as those reached from the more traditional starting points (Lonergan was innovative in his method but traditional in his conclusions), but the analysis may/should have a better chance of succeeding/persuading in this post-Kantian world.  These are deep waters, but I should venture that Smith and Vining are onto something, both problem and solution.                     

Smith, Posner and More

Have any of my co-blogistas read Steven D. Smith's "Law's Quandry?" I hear it's terrific, but have only seen a fairly brief note on Larry Solum's blog. For any one who has read it, I'd be interested in your thoughts on how it might relate to our evolving conception of a Catholic legal theory. Another question along those lines: Richard Posner is guest blogging over at Brian Leiter's blog. He has a very interesting first post on faith-based discourse in the supposedly secular polity in which he takes on the Rawlsian exclusion of such discourse on the ground that democracy is not an academic seminar in which only "public" reasons may be asserted: it is a system through which the public can express its preferences to and through its elected representatives. So if religious sentiments and arguments are dominant in the electorate, there is no principled basis for excluding them in public debates and decisionmaking. A typically pragmatic argument by Posner. Brian's post introducing Posner is also very good, succinctly analyzing Posner's critique of academic philosophers such as Rawls and Dworkin on pragmatic, skeptical grounds (see his Holmes Lectures from a few years ago). What, then, would Posner make of our project? I think there is a fundamental conflict between law & economics (pace Steve Bainbridge), whether the Posnerian pragmatic version or the many utilitarian versions, because the basic assumption is that meditation upon the nature of the good is a fool's errand, and certainly unrelated to the way people actually behave, and that the best we can do is maximize welfare, ie peoples' preferences. This seems to me fundamentally at odds with the Artistotelian/Aquinean tradition of which both Catholic moral theology and Catholic Social Thought are a part, and on which we must draw in formulating a Catholic understanding of law. Forgive my amateur philosophical ramblings, but these questions strike me as relevant to this blog's central project.

Hope everyone had a merry Christmas!

-Mark

Democrats De-emphasizing Abortion?

A former student of mine passes on this story, "Democrats Weigh De-Emphasizing Abortion as an Issue," from today's New York Times:

In interviews and public appearances since Election Day, Democratic officials have said that the party should open its doors to abortion opponents and that candidates should make abortion a less central focus of future campaigns.

Party leaders said they were not abandoning their fundamental support for abortion rights, but said Democrats should consider accepting some restrictions that enjoy popular support - like parental notification when teenagers receive abortions.

The story included this noteworthy quote by Donna Brazile:

"All these issues that put us into the extreme and not the mainstream really hurt us with the heartland of the country," said Donna Brazile, a Democratic Party leader who managed Al Gore's campaign in 2000. "Even I have trouble explaining to my family that we are not about killing babies."

Rick

Can an Educator Be Pro-Life?

Here is a story from the BBC (thanks to Amy Welborn), discussing some of the concerns being raised about the U.K.'s new education secretary:  "Scientists have expressed concerns that [Kelly's] religious views could hamper vital scientific research.  Ms Kelly, who is Catholic, is reported to be 'pro-life' and has opposed embryo research." 

I wish this were surprising.  Apparently, it is not enough that religious faith has been radically privatized; now, even the existence of "private" religious commitments disqualifies one from meaningful participation in the "public" square.  I'm reminded of the recent (and continuing) controversies in the United States over appointees to the federal judiciary, and of the claims advanced by many who oppose President Bush's nominees that pro-life, religious nominees should not be confirmed because they cannot be trusted to keep their faith "private."

To be clear:  I can certainly imagine some religious beliefs that, if sincerely held, would make it difficult for the believer to perform responsibly as the education secretary for (or a judge in) a large, secular nation.  I can also imagine some religious beliefs that, in my view, would get in the way of doing science, as I understand that enterprise.  But I cannot help being surprised that a commitment to the humanity and dignity of unborn children is such a belief.

Rick 

The Becker-Posner Blog

Well, for those who continue to doubt the existence, or even the possibility, of blogs with serious intellectual heft, there's now the "Becker-Posner Blog," operated by -- you guessed it -- big-brains Gary Becker and Richard Posner.  So far, the discussion has focused on Global Warming, Preventative War, and Pharmaceutical Patents.  Just another day in the blogosphere . . .

Rick

"Left2Right" and "Christian America"

This new blog, "Left2Right," strikes me as an interesting enterprise.  Here's how the group of several dozen politically-left-leaning-but-apparently-interested-in-respectful-dialogue academics describes the project:

We're a bunch of academics, mostly philosophers but also some lawyers, political scientists, and economists.  We're interested in liberal ideas, though we are probably far from unanimous about what "liberal" means, and our being interested in liberal ideas doesn't entail that each of us subscribes to all of them.  We think that political debate in this country has deteriorated into a shouting match, a food fight, a flame war -- call it what you will.  We'd like to consider whether liberal ideas should be somehow reconsidered -- in some respects revised, in others perhaps merely re-stated -- with the aim of increasing the overall ratio of dialog to diatribe in the American political forum.  Some of us will be trying out various ways of re-thinking and re-formulating those ideas; others may end up arguing that such attempts are unnecessary, even counter-productive.  And in the course of our discussion, there will be plenty of digressions and asides of the sort that naturally occur at the margins of a group discussion.

Now, much of what gets said in Left2Right's comments-boxes is, in a view, disappointingly tedious and smug.  Still, the bloggers' own posts seem, generally speaking, quite provocative and engaging.  Here's a particularly interesting one, by philosopher Don Herzog, reflecting on the significance and implications of the claim that America is (or should be) a "Christian nation":

A while ago I wondered what would change if we publicly affirmed that this is a Christian nation.  My dilemma shapes up this way.  I don't want to believe that the people urging that are doing right-wing identity politics, slinging around vacuous slogans; I assume they want concrete policy change, not feel-good gestures.  But on the other side, I don't want to believe that the people urging that are what I'd style extremists who might think, for instance, that a public university could fire me as a faculty member if I couldn't demonstrate that I was a Christian in good standing.  (If there are people who'd do that, I'd argue against them.  Strenuously.  Not just label them extremists.  But hey I'd do that too.  Any port in a storm.)  So I keep looking around for some position that skirts the horns of that dilemma.

Check it out.

Rick