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, February 28, 2005

Catholic Politicians and Moral Responsibility (Torture)

As a further contribution to the ongoing discussion about the responsibilities of Catholic politicians, of both parties and from both ends of the spectrum, and with particular attention to the question of torture and the provocative piece by J. Peter Nixon in Commonweal, I post below (with his permission) some additional thoughts by Prof. John O'Callaghan of Notre Dame. [Note also Professor O'Callaghan's mention of the upcoming conference here at the University of St. Thomas School of Law on Pro-Life Progressivism, which promises to be most interesting and rewarding investment of scholarly attention.]

"Here is a nice piece in Commonweal. The author revisits the question of the role that Catholic teaching should play in the lives of Catholic voters. This return to the question after the election is welcome. One of the points I tried to make in my own post on this question, Sacred Monkeys, just prior to the election, is that very often Catholics only think about these issues as the election cycle heats up. As a result, our reflection is quite often hurried and thus weakened in the heat of the moment. But questions involving the governance of the common good are important enough that we should be reflecting upon them regularly, and when we are not caught up in the maelstrom of our political passions during an election.

I think that the case of the Attorney General and torture is a very good one for the author to raise, and for us to reflect upon. We are accustomed to thinking mostly of abortion and its political ramifications. When in Veritatis Splendor* the pope included torture among abortion and other types of action that may never be done in any circumstance or for any goal, it never occurred to me that in this day and age I would have to face the possibility of my own country engaging in it as a result of government sanction. One ought not to be naive, and think isolated instances of torture will not take place in wartime, just as murder, theft, and all sorts of other crimes are committed by our troops as rare and isolated events. It is, among other things, why we have the Judge Advocate General. But the extent to which some of the abuses that have taken place may have been sanctioned by our government is appalling. I recall that when the scandal broke I thought, as I continue to think, that the Secretary of Defense should resign or be fired because these things happened under his watch. It was enough that they happened on the scale that they did. At that point I did not dream that some of them may have been officially sanctioned, or that there would have been any policy and legal discussions of our government in which they were even contemplated. So much for my own naivete.

I think the author is correct to point out that Catholic Republicans should have raised a voice of concern, if not outright rejection of a candidate for Attorney General involved in the government sanction of some forms of torture. One might of course claim that what was argued was that the various types of acts do not count as torture, and therefore no one was actually advocating what they understood to be torture as such. But this is where we have to recall that with regard to most types of human action neither law nor conscious inner intention creates their kind and moral character, but has to reflect it. The corsair may claim that he is merely testing the sharpness of his blade on the sailor's neck. But of course we know that he is wrong in the "merely." These Republicans lost the opportunity to demonstrate that they are not in the back pocket of their party in the way in which pro-abortion Catholic Democrats are in their own.

In charity, one would want to point out that the Republican party does not have a thirty year history of supporting government sanctioned torture, does not have a plank in their platform supporting torture, does not have a history of a litmus test for national office involving the support of torture, does not have leaders appearing at pro-torture conventions seeking political and financial support, and does not yet have numerous Catholic politicians abdicating their responsibility for political leadership while privatizing their opposition to torture. To the best of my knowledge neither of the senators mentioned said, "I am personally opposed to torture, but...." In addition, the response of the government and the Republican party to this scandal was not to suddenly start advocating all these things, but to correct the abuse. As the Center for Ethics and Culture's Alasdair MacIntyre has argued at length, one of the features of a healthy tradition is its ability to engage in self-critque, and reform in the face of the problems that arise within it. I think it is fair to say that on abortion, there is little or no such health in my own Democratic party. These sorts of differences should also weigh upon our political judgments. And yet one fears that here on the confirmation of the Attorney General, given his role in the formation of policy that allowed for torture, the failure of Catholic Republicans to even raise an eyebrow could be the first step down the road to their own pathology.

If there is a place where I think the author stumbles it is where he simply throws in "collective action-progressive taxation, Social Security, labor unions," and so on. Neither what he wrote before this point, nor after, appears to justify simply throwing these issues in for good measure. It was a concern of my Sacred Monkeys that this sort of move expressed a tendency toward a kind of policy utilitarianism where we lump in all political questions together, as if they differ only in degree, and weigh them for what we perceive to be the optimal benefit. In the Catholic case we end up with a kind of vague sense of overall fit with Catholic teaching, or to pursue the famous metaphor a rather dull, drab, and undistinguished seamless garment, rather than something that is vibrant, colorful, and distinctive, in which absolute commitment to the protection of the life of the innocent is not simply part of the weave, but, rather, the thread that is woven. As I see it, these other questions are matters of political prudence quite distinct from such matters of principle as abortion and torture. It was after all the New Democrats under the leadership of Bill Clinton who tried to make the Democratic party as indistinguishable as possible from the Republicans on these types of issues, ending welfare as we know it, increasing the number of federal crimes punishable by death, and so on, in order to gain political power. "Meet the new boss. Same as the old boss." We won't be fooled again.

Happily, I think I will try to address that tendency at "Can the Seamless Garment be Sewn? The Future of Pro-Life Progressivism". Little did I think that when I wrote my doctoral thesis "Mental Representation: St. Thomas and the De Interpretatione" that the love of wisdom would lead me here.

Such is love.

John [O'Callaghan]

*"Whatever is hostile to life itself, such as any kind of homicide, genocide, abortion, euthanasia and voluntary suicide; whatever violates the integrity of the human person, such as mutilation, PHYSICAL AND MENTAL TORTURE AND ATTEMPTS TO COERCE THE SPIRIT; whatever is offensive to human dignity, such as subhuman living conditions, arbitrary imprisonment, deportation, slavery, prostitution and trafficking in women and children; degrading conditions of work which treat labourers as mere instruments of profit, and not as free responsible persons: all these and the like are a disgrace, and so long as they infect human civilization they contaminate those who inflict them more than those who suffer injustice, and they are a negation of the honour due to the Creator".(Veritatis Splendor #80) "

Originally posted on the blog for the Notre Dame Center for Ethics and Culture [link here].

February 28, 2005 in Sisk, Greg | Permalink | TrackBack (0)

Gay Marriage, Academic Freedom, and the Church's Language

Following up on Michael's post, here is more coverage of the controversy sparked by the choice of language used to condemn gay marriage in Pope John Paul II's latest book.  (Thanks to CT for the link.)  The author asserts that:

The Pope condemns the Third Reich for removing the rights of Jews and holding them up to contempt, but in his condemnation of homosexual unions and his associating them with evil, he could be accused of contempt for the civil rights of another community.

The Church, of course, would defend its opposition to full equality for gays within the political sphere on the ground that even notions of political equality must be constrained by an authentic conception of the human person.  But can meaningful distinctions be drawn in non-religious terms between the claims of gays and members of minority religions to full participation in the political life of the community?  Or is the Pope's labeling of gay marriage (and civil unions, I assume) as "evil" akin to Bishop D'Arcy's vision of academic freedom (posted earlier by Rick):

Freedom in the Catholic tradition, and even in the American political tradition, is not the right to do anything. Freedom in the Catholic tradition is not the right to do this rather than that. That would be an entirely superficial idea of freedom. Freedom in the academy is always subject to a particular discipline. It is never an absolute. The parameters of the particular discipline guide research.

Freedom is the capacity to choose the good. In “Ex Corde Ecclesiae,” John Paul II makes it clear that a Catholic university “guarantee its members academic freedom, so long as the rights of the individual person and of the community are preserved within the confines of the truth and the common good.”. . . It is in opposition to the highest understanding of academic freedom. For freedom which is not linked to truth is soon extinguished.

However appealing this vision of human freedom might be, it certainly is not a vision that is accessible to members of the academic community who do not share in the Church's conception of the human person.  Stated bluntly, the Bishop's explanation amounts to saying, "Of course you're free to explore new ideas, as long as those ideas comport with the Truth."  And exactly who defines the Truth, including every nuance and new application, in a rapidly changing world?  I am not contesting the authority of a Catholic school to limit the freedom of its employees in order to maintain and protect its institutional identity, but I am contesting Bishop D'Arcy's insistence that limiting freedom to the pursuit of Church-defined "Truth" can be equated with "academic freedom."

So both episodes leave me with a sense of skepticism toward the compatibility of the chosen language with the broader accessibility of Catholic social thought.  Can we construct generally accessible portrayals of gay marriage as "evil" without sacrificing the moral anthropology's central grounding in human dignity?  And can we define academic freedom as extending only to the limits defined by a religious conception of reality?  Are these instances where the day-to-day implementation of Catholic social thought has not caught up with the aspirational norms driving the Church's engagement with the world?


February 28, 2005 in Vischer, Rob | Permalink | TrackBack (0)

Religion and Liberalism

[Thought this item would be of interest to readers of this blog.]

Sightings  2/28/05
Conservative Hopes for Liberalism
-- Martin E. Marty

Sightings likes to look both right and left.  Few magazines in our library or mailbox are liberal, but the sometimes somewhat liberal New Republic, which celebrates its ninetieth anniversary this very day, is here with an issue dedicated "To Liberalism!  Embattled ... And Essential."  The authors of eight articles on the subject are very hard on what remains of liberalism, and offer rather modest signals of hope for tomorrow.  Religious language and themes run through many of these articles.

Peter Beinart reminds us that "great causes and missionary impulses that rouse citizens to engage with the world" -- old liberal themes -- have largely passed to conservative mission-minders.  Jonathan Chait asks us to "imagine that God were to appear on Earth for the unlikely purpose of settling, once and for all, our disputes over economic policy," presenting irrefutable empirical data that conservatives were correct.  "How would liberals respond?" Chait asks.  They would bow down and change.  Suppose, on the other hand, that God's empirical data agreed with the liberals' claims.  Conservatives would be unmoved; they believe in certain dogmas, no matter what the situation, claims liberal-chiding Chait.

Martin Peretz joins so many others these days in wishing that "the most penetrating thinker of the old liberalism, the Protestant theologian Reinhold Niebuhr," could reappear -- though heirs of those to and for whom Niebuhr spoke would not listen because he "held a gloomy view of human nature."  No spokesperson has succeeded him as philosopher-theologian for liberals.  Someone should come along and wake them up.  Leon Wieseltier speaks of his own "Augustinian heart," and criticizes another author for "his sunniness about salvation" from economic problems -- a limiting factor today.

E. J. Dionne, who for years has fused religious themes with moderate liberal economic and political philosophy and concerns, anchors the issue with a long altar call worth the price of the issue: " Faith Full: When the Religious Right Was Left."  He, too, wishes for a Reinhold Niebuhr to infuse liberalism with now-neglected Augustinian views of original sin.  Dionne's historical sweep is impressive.  Today's media has stood in awe of evangelicalism as a phalanx devoted to anti-abortion, anti-gay, anti-stem-cell research, pro-school prayer, pro-gun, pro-death penalty, pro-war concerns.  Such portrayals present a distorted picture, and the many dimensions of evangelicalisms also suggest other issues.  And they have different, usually unknown or overlooked, histories.

Dionne is concerned that the new assertiveness by political evangelicals has helped drive liberals into secular(istic) positions, postures, and camps.  And he shows why, if that is the case, these are futile situations to be in -- situations that also obscure the religious ancestry of modern political liberalism.  The "Social Gospel" was part of the program of both William Jennings Bryan-type progressive-conservatism and liberal Christian social activism.  The same goes for Catholicism, whose Bishop's Program of 1919 pioneered New Deal measures.  And, of course, liberal Protestantism was then in the vanguard.

Look to your roots, Dionne seems to be saying to evangelicals, Catholics, and liberal Protestants alike.  The current growths and branches do not reflect those roots very well.

Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.

February 28, 2005 in Perry, Michael | Permalink | TrackBack (0)

Sunday, February 27, 2005

Language, Diologue, and the Problem of Calling Something Evil

Rob raises an important in his post Gay Marriage as an "Ideology of Evil," in which he  says "In today's culture, my fear is that such labels close off any further potential conversation on a key societal trend ...  as these labels produce headlines that support a caricature of the Church as an unthinking, anachronistic institution."  I agree with Rob that this presents a problem, but I suspect that those who want to support a caricature of the Church will be able to do so no matter what language is used because any sophisticated and nuanced argument will provide fodder for those who a) disagree and b) don't want to expend the time or the energy to engage in thoughtful dialog.

The Church (including the current pontiff) teaches that every person has a right to emigrate and that country's that can handle immigration should allow generous immigration.  Yet, in Laborem Excercens, Pope John Paul II suggests that "emigration is in some aspects an evil."  In what sense is it evil?  Is it a physical evil?  Is it a moral evil?  In all circumstances or only in some?  If it is a moral evil in at least some circumstances, what is the culpability of the emigrant in a given circumstance.  The use of the language is shocking for modern ears that think of evil in terms of the holocaust. 

With Rob, I would welcome more discussion on this issue of language.  How can the Church with its 2000 years of finely tuned language dialog with a culture that a) is often unfriendly to its message, b) is used to arguments being made in 30 second increments, c) and receives its information through the filter of a media quick to caricature (whether intentionally or out of ignorance), especially where the precise language doesn't resonate with modern common understanding of that language?   

February 27, 2005 in Scaperlanda, Mike | Permalink | TrackBack (0)

Saturday, February 26, 2005

"Catholic" Politicians? Not too impressive!

February 25, 2005

Catholic Politicians

J. Peter Nixon

[For the complete article, which I recommend, click here.  Excerpts follow.]


Given that the Catechism of the Catholic Church condemns torture as “contrary to respect for the person and for human dignity,” one might have thought that the Gonzales nomination would have provided Catholics who supported Bush with an opportunity to show their commitment to values that transcend partisan loyalties. If opposition to torture as an instrument of national policy is not a “nonnegotiable” Catholic teaching, it is fair to ask what is. Given the president’s solicitude for the Catholic vote, one wonders what would have happened if Catholics who had supported him had come together to oppose the Gonzales nomination.

But many prominent Catholics apparently had no problem throwing their support behind Gonzales. Senator Sam Brownback (R-Kans.), a favorite of Catholic conservatives and a possible 2008 presidential contender, asked no questions about torture during Gonzales’s nomination hearing. Senator Rick Santorum (R-Pa.) voted to confirm Gonzales without expressing a word of concern about his record. Catholic supporters of the war in Iraq, such as Rev. Richard John Neuhaus and George Weigel, were oddly silent about the Gonzales nomination, despite the demonstrable damage that the torture scandals have done to the foreign-policy goals they champion.

Catholic Democrats inclined to rejoice in this line of analysis should be wary of casting the first stone, as they are often no more willing than their Republican counterparts to challenge their own party on issues close to the core of Catholic social teaching. The list of Catholic Democrats with national ambitions who abandoned earlier prolife views is long: Ted Kennedy (D-Mass.), Mario Cuomo, Dick Gephardt, Tom Daschle, Dennis Kucinich (D-Ohio). Many of these Democrats have long resorted to boilerplate statements that they are “personally opposed” to abortion. But when they trumpet their prochoice voting records, raise millions from the abortion lobby, declare that Roe v. Wade is “sacred ground,” and oppose even the most minimal protections for the unborn, it is hard not to see their personal opposition as essentially meaningless. Last November’s elections do seem to have initiated a conversation among Democrats about their rigid adherence to abortion rights (see William J. Byron’s “Prolife and Prochoice,” February 11, 2005), but it remains to be seen whether this conversation will lead to anything more than rhetorical repositioning.

[Again, for the whole article, click here.]

February 26, 2005 in Perry, Michael | Permalink | TrackBack (1)

Michele Pistone, CST, and the Migration of Skilled Workers

Our own Amy Uelmen as director of Fordham's Institute on Religion, Law, and Lawyer's Work organized a terrific conference titled "Immigration Law & Policy in Light of Religious Values.  At the conference, which took place yesterday, Michele Pistone continued to develop her work on the benefits to sending countries of what has traditionally been known as "brain drain."  Although the CST recognizes a right to emigrate, it has also discouraged emigration of highly skilled workers from developing countries on the assumption that these highly skilled workers can best contribute to the development of their countries by staying put.  Michele challenges this assumption, suggesting (backed with data) that emigration of highly skilled workers (what she calls STEP OUT migration) actually can aid in the development of the sending country.

Michele's project is important, I think, on two levels.  First, if CST's teaching on brain drain/step out migration is based on faulty assumptions, it ought to be corrected to reflect the actual effect of such migration.  Second, Vatican II expressly acknowledges the sphere of lay experts in working within CST.  Much of this work will be directed outward by engaging the world in a prudential manner with this rich tradition.  But, as Michele suggests, some of this work will be to inform the church of the economic, sociological, and legal realities, correcting false assumptions if need be.  Any comments?  Michele, do you want to add anything?


February 26, 2005 in Scaperlanda, Mike | Permalink | TrackBack (0)

Friday, February 25, 2005

Engineering Eden

The St. John's Journal of Legal Commentary held its annual symposium today, entitled, Engineering Eden: Investigating the Legal and Ethical Dilemmas of Modern Biotechnology.  It gathered a group of terrific speakers  who raised important questions with respect to minority health care disparities, stem cell research, human cloning and the question of humanness vs. personhood.  The proceedings will appear in a forthcoming issue of the Journal.


February 25, 2005 in Stabile, Susan | Permalink | TrackBack (0)

Religious Lawyering

Law profs Brad Wendel (Cornell), John Dzienkowski (Texas), and John Steele (a lecturer at Boalt) have started a legal ethics blog.  Today they've posted an interview with me about the integration of faith and legal practice.  I'd welcome feedback from readers and co-bloggers.


February 25, 2005 in Vischer, Rob | Permalink | TrackBack (0)

Thursday, February 24, 2005

Frozen Embryo = Person = Who Cares?

An Illinois judge's recent ruling that a frozen embryo qualifies as a "person" under the state's Wrongful Death Act need not worry abortion rights supporters, according to Rutgers law prof Sherry Kolb:

[Y]ou might still believe that abortion should be legally permissible. You could take the view that an abortion kills a person but only in the way that refusing to donate blood or a kidney to someone who needs your blood or your kidney kills a person.

As I have argued in a different column, at least prior to viability, it is impossible to refuse to lend one's body to another person (which is largely what pregnancy is all about) without killing that other person. Given that fact, the law cannot fairly coerce women to take their pregnancies to term, while at the same time leaving fathers and other relatives free to refuse to donate an organ or blood.

Nevertheless, she still faults the judge's reasoning:

When a child (or even a developing fetus after a certain point) dies, a person with characteristics such as sentience has lost something that he or she previously had. That loss stands in addition to that of the family members who mourn for the child.

In contrast, when an embryo is discarded by mistake, the only ones who lose are other people -- just as only other people lose when a couple decides not to have intercourse (and thus not to produce a child who could have been a wonderful person).

Read the rest here.


February 24, 2005 in Vischer, Rob | Permalink | TrackBack (0)

Wednesday, February 23, 2005

Larry Solum on Virtue Ethics at Notre Dame

University of San Diego law professor (and legal-theory blogger) will present a paper, "Virtue Jurisprudence:  An Aretaic Theory of Law" at the Notre Dame Law School's faculty-colloquium series on Wednesday, March 2.  Here's the abstract for the paper:

Contemporary legal theory in the United States has been dominated by the realist paradigm. The extreme version of realism is captured by the slogan of the critical legal studies movement: “Law is politics!” Other heirs to the realist tradition (including normative law and economics, the legal process school, legal pragmatism, and so forth) coalesce around what we might call the instrumentalist thesis—the point of legal institutions (especially courts) is to use the law as an instrument to achieve the goals of some normative theory (such as welfarism or deontology ) or a political ideology (of the left, right, or center). There are, of course, opposing tendencies in contemporary legal theory. Some neoformalists emphasize the duty of adjudicators to follow the law and give the parties what they are due; in a rough and ready sort of way, these neoformalists adopt a deontological perspective on legal theory that competes with the consequentialism of contemporary neorealists.

In this paper, I sketch an alternative direction for contemporary legal theory, an approach that I call “virtue jurisprudence.” My core idea is quite simple. In moral theory, virtue ethics offers a third way—an alternative to the deontological and consequentialist approaches that dominated modern moral philosophy until very recently. What would happen if we transplanted virtue ethics into normative legal theory? This paper offers the sketch of an answer to that question.


February 23, 2005 | Permalink | TrackBack (0)