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, March 31, 2005

The Teaching Authority of the Magisterium

In his post below (per Greg Sisk), Bob Kennedy refers to the criteria specified in Lumen Gentium 25.  I thought that MOJ readers would like to see the criteria.  A crucial question:  How determinate are the criteria--in particular, with respect to moral teachings?  Another crucial question:  What moral teachings now in serious dispute among faithful Catholics--including faithful Catholic theologians--satisfy these criteria?  In any event, here is  Lumen Gentium 25:

25. Among the more important duties of bishops that of preaching the Gospel has pride of place.[39] For the bishops are heralds of the faith, who draw new disciples to Christ; they are authentic teachers, that is, teachers endowed with the authority of Christ, who preach the faith to the people assigned to them, the faith which is destined to inform their thinking and direct their conduct; and under the light of the Holy Spirit they make that faith shine forth, drawing from the storehouse of revelation new things and old (cf. Mt. 13:52); they make it bear fruit and with watchfulness they ward off whatever errors threaten their flock (cf. 2 Tim. 4-14). Bishops who teach in communion with the Roman Pontiff are to be revered by all as witnesses of divine and Catholic truth; the faithful, for their part, are obliged to submit to their bishops' decision, made in the name of Christ, in matters of faith and morals, and to adhere to it with a ready and respectful allegiance of mind. This loyal submission of the will and intellect must be given, in a special way, to the authentic teaching authority of the Roman Pontiff, even when he does not speak ex cathedra in such wise, indeed, that his supreme teaching authority be acknowledged with respect, and sincere assent be given to decisions made by him, conformably with his manifest mind and intention, which is made known principally either by the character of the documents in question, or by the frequency with which a certain doctrine is proposed, or by the manner in which the doctrine is formulated.

Although the bishops, taken individually, do not enjoy the privilege of infallibility, they do, however, proclaim infallibly the doctrine of Christ on the following conditions: namely, when, even though dispersed throughout the world but preserving for all that amongst themselves and with Peter's successor the bond of communion, in their authoritative teaching concerning matters of faith and morals, they are in agreement that a particular teaching is to be held definitively and absolutely.[40] This is still more clearly the case when, assembled in an ecumenical council, they are, for the universal Church, teachers of and judges in matters of faith and morals, whose decisions must be adhered to with the loyal and obedient assent of faith.[41]

This infallibility, however, with which the divine redeemer wished to endow his Church in defining doctrine pertaining to faith and morals, is co-extensive with the deposit of revelation, which must be religiously guarded and loyally and courageously expounded. The Roman Pontiff, head of the college of bishops, enjoys this infallibility in virtue of his office, when, as supreme pastor and teacher of all the faithful--who confirms his brethren in the faith (cf. Lk. 22:32)--he proclaims in an absolute decision a doctrine pertaining to faith or morals.[42] For that reason his definitions are rightly said to be irreformable by their very nature and not by reason of the assent of the Church, is as much as they were made with the assistance of the Holy Spirit promised to him in the person of blessed Peter himself; and as a consequence they are in no way in need of the approval of others, and do not admit of appeal to any other tribunal. For in such a case the Roman Pontiff does not utter a pronouncement as a private person, but rather does he expound and defend the teaching of the Catholic faith as the supreme teacher of the universal Church, in whom the Church's charism of infallibility is present in a singular way.[43] The infallibility promised to the Church is also present in the body of bishops when, together with Peter's successor, they exercise the supreme teaching office. Now, the assent of the Church can never be lacking to such definitions on account of the same Holy Spirit's influence, through which Christ's whole flock is maintained in the unity of the faith and makes progress in it.[44]

Furthermore, when the Roman Pontiff, or the body of bishops together with him, define a doctrine, they make the definition in conformity with revelation itself, to which all are bound to adhere and to which they are obliged to submit; and this revelation is transmitted integrally either in written form or in oral tradition through the legitimate succession of bishops and above all through the watchful concern of the Roman Pontiff himself- and through the light of the Spirit of truth it is scrupulously preserved in the Church and unerringly explained.[45] The Roman Pontiff and the bishops, by reason of their office and the seriousness of the matter, apply themselves with zeal to the work of inquiring by every suitable means into this revelation and of giving apt expression to its contents;[46] they do not, however, admit any new public revelation as pertaining to the divine deposit of faith.[47]

March 31, 2005 in Perry, Michael | Permalink | TrackBack (0)

More on the Teaching Authority of the Church

I am pleased to pass along these comments from my colleague, Bob Kennedy, in the Catholic Studies program here at the University of St. Thomas:

"I have been reading some of the recent posts on the “Mirror of Justice” blog and I would like to offer a few quick comments on the discussion about the teaching authority of the Church. This discussion, I think, is likely to be widely renewed with the publication of Judge Noonan’s new book.

First of all, it is important that we keep in mind that there is not one question here but a whole set of questions. If we don’t articulate clearly what question we are discussing it is easy to become confused. I think this is happening with the MOJ posts.

The question of whether a faithful Catholic may dissent from some specific teaching of the Church (or the declarations of a bishop, for that matter) is quite distinct from the question of whether the Church may sometimes teach without the possibility of error. One might give an affirmative reply to both questions without contradiction.

I have not seen Judge Noonan’s new book but I believe I have read carefully everything he has written to date about the development of doctrine in moral theology. While he is rightly honored for a remarkable career, I think he is an unreliable guide on this issue.

The core of the issue has to do with the Church’s claim, defined at the First and Second Vatican Councils, that it enjoys a gift—the living guidance of the Holy Spirit—that guarantees that there have been, are, and will be occasions in which it does not and cannot err in what it teaches regarding faith and morality. To put it another way, the Church claims that sometimes it teaches with the authority of the Spirit so that what it teaches is true and can never afterwards be rightly repudiated or contradicted. Such doctrines are not subject to any form of development that would entail affirming a contradictory proposition.

The Second Vatican Council, in Lumen gentium 25, laid out a set of conditions that, when met, are a sure sign that a particular doctrine of the Church is genuinely taught under the guidance of the Spirit and therefore permanently irreformable. The doctrinal claims of the creeds of Nicaea, Constantinople, and Chalcedon, for example, would meet these criteria, as would, say, many of the doctrines of Trent on the sacraments. To be very precise, I think it is true to say that the satisfaction of these criteria does not (magically) create irreformability but is instead a sure sign of the presence of the Spirit. The Spirit may also be present on other occasions when the Church teaches but it is when these conditions are met that the Church is supremely confident of that presence.

A corollary of this conviction is that when the Church teaches without meeting these conditions, the doctrine taught is, in principle, subject to reform or even repudiation. The Church does not claim that its doctrines are of two types, one undeniable and the other suspect. Rather, there are some occasions on which the Church teaches with utter conviction that it does so with the unerring guidance of the Spirit, and other occasions on which its convictions about the truth of what it teaches range from almost certainly true to probable.

With this in mind, we can think about the development of doctrine in moral theology, and here is where Judge Noonan, in my view, does not guide us as well as he could.

Is it the case that the Church has sometimes in the past taught some proposition, “X,” on moral matters and later repudiated that proposition by teaching “not X”? The simple answer is yes, but since we have already conceded that a good deal of what the Church teaches is not taught in circumstances that met the criteria of irreformability, this answer is not very interesting. Or, to put it another way, it would be interesting if the Church made the claim that it always teaches irreformably on moral matters, but it makes no such claim. The examples that Noonan adduces of substantive changes in doctrine show nothing more than reformable doctrines are sometimes reformed.

His analysis would be interesting if he could present an example of a doctrine that was taught under conditions satisfying the criteria of LG 25 but which was later denied by the Church under conditions satisfying the same criteria. Perhaps he does so in his new book, but in over 30 years of writing about this subject he has not yet provided such an example. Quite honestly, I do not believe such an example exists.

So where are we? Well, faithful Catholics ought to accept the claim that the Church enjoys the gift of teaching irreformably, but they need not accept a claim (which in any event the Church does not make) that it always teaches irreformably. Since relatively few doctrines have met the criteria of LG 25 (though many might meet them at some point in the future), quite a few doctrinal claims are susceptible to closer examination. Between obedient acceptance and stern dissent there can be quite a broad opportunity for humble, open-minded review.

Bob Kennedy
University of St Thomas
Department of Catholic Studies"

March 31, 2005 in Sisk, Greg | Permalink | TrackBack (0)

Colorado Puts Religion in its Place

Today's installment in our ongoing coverage of the intensifying battle over health care providers and moral agency comes from Colorado, where the legislature has passed a bill that would require Catholic hospitals to provide information and referrals to rape victims that would allow them to "avoid pregnancy." 

The Denver Post's article (thanks to Open Book) provides a provocative angle from the start, evidenced by the opening line: "Gov. Bill Owens faces a test of his Catholic faith."  Apparently, this bill could only be objectionable to a Catholic politician.  Potential concerns over institutional autonomy are simply distractions, it seems, from the primary obstacle: Catholic hang-ups about abortion and contraception.

The Post's strange phrasing, however, is nothing compared to the terms of the legislative debate:

[D]uring debate on the floor of the House Tuesday, Rep. Jack Pommer, D-Boulder, said that the bill was about medicine, not religion.

"We don't take rape victims to a church," he said. "We take them to a hospital (which has) ... a commitment to provide the best and most complete treatment to anyone who shows up."

Usually politicians who seek the privatization of religion aren't so explicit about it.  Representative Pommer makes it plain that it would be permissible for the Catholic Church to adhere to its beliefs inside the physical church building itself, but once we step outside those walls, all bets are off.


March 31, 2005 in Vischer, Rob | Permalink | TrackBack (0)

Massachusetts Joins the "Gold Rush"

As I've noted previously (see here and here and here), there is a "gold rush" mentality taking over the stem cell research debate at the state level.  Now Massachusetts is joining the fray:

State senators overwhelmingly approved a measure yesterday promoting embryonic stem cell research in Massachusetts, dealing a defeat to Governor Mitt Romney by endorsing a research technique that involves the cloning of human cells. . . .

Many senators described yesterday's vote as historic, suggesting that Massachusetts is putting itself at the forefront of scientific efforts that could lead to cures of diseases such as Alzheimer's and Parkinson's. . . .

Soon after the 35-2 vote, Senate President Robert E. Travaglini said it ''sends a very clear message that we are serious about removing the cloud over this type of research that offers so much promise and hope to so many families that are afflicted with debilitating and degenerative diseases."


March 31, 2005 in Vischer, Rob | Permalink | TrackBack (0)

More on the Death Penalty and Deterrence

[Here is a post by Doug Berman of Oio State, from his blog Sentencing Law and Policy (click here):]

March 24, 2005

Concerns about (and blogsphere buzz on) DP paper

The Sunstein and Vermeule article that I posted here last night, which contends that capital punishment may be morally obligatory if it saves lives through its deterrent effect, is already generating blogsphere buzz.  In addition to Eugene Volokh's initial post here, there are now thoughtful discussions of the paper at Crooked Timber here (with lots of comments) and at Crescat Senentia here and at Mirror of Justice here and here. Because, as I noted before, this topic intrigues me greatly, I wish to weigh in by highlighting two concerns I have about the paper, one empirical and one normative:

1.  An empirical concern: are the data sound?  As Karl Keyes notes in this comment and as others in the blogsphere spotlight, Sunstein and Vermeule rely heavily on data which are shaky at best.  The authors concede that their arguments depend entirely on evidence that capital punishment deters, and that evidence is hardly conclusive.  (Next month at Ohio State, as detailed here, Columbia Prof Jeff Fagan is scheduled to give the annual Reckless Lecture on this topic, and his telling title is "Science and the Illusion of Deterrence in the Death Penalty: Cold Fusion All Over Again.")

2.  A normative concern: doesn't the argument prove too much?  Sunstein and Vermeule are focused on murders in their discussion of "a life-life tradeoff," but their claims would seem readily extended to other kinds of killings.  In my class discussions and in my own thinking, I find the deterrence arguments especially challenging when we consider drunk driving fatalities.  Statistics show over 17,000 alcohol-related driving fatalities each year (data here), and I have to think we could significantly reduce that number by executing just a few drunk drivers.  (Drunk driving seems like a much more deterrable crime than some other killings, and recent history suggests laws and public awareness can have a significant impact on alcohol-related driving fatalities.)  Are Sunstein and Vermeule prepared to argue that execution of drunk drivers is morally obligatory (at least in states like California, Florida, and Texas that have a high number of alcohol-related driving fatalities)?

In short, I ultimately found the Sunstein and Vermeule paper unsatisfying because they duck what I consider to be the really hard questions.

March 31, 2005 in Perry, Michael | Permalink | TrackBack (0)

Wednesday, March 30, 2005

A MOJ Reader Responds to Danforth

[I received these comments from a MOJ reader--and thought other MOJ readers would be interested in them.  -mp]

I followed your link to Senator/Ambassador Danforth's piece. While interesting I would also argue that it is at times intellectually incoherent.
He writes:  "It is not evident to many of us that cells in a petri dish are equivalent to identifiable people suffering from terrible diseases. I am and have always been pro-life. But the only explanation for legislators comparing cells in a petri dish to babies in the womb is the extension of religious doctrine into statutory law."
I wonder how Senator Danforth understood his work on the behalf of the unborn and against abortion.  Why was this not an "extension of religious doctrine into statutory law"?  And if it was not that, what was it?  What makes working against embryonic stem-cell research religious but working against abortion non-religious?  I, for one, think advocating against abortion and the intentional destruction of embryos (in petri dishes, test tubes, or where ever they may be) is of one piece and that piece is not a religious one.  That is the arguments against both abortion and embryonic stem-cell research are grounded in secular, rational reasons.  Put another way, reason demands that we refrain from abortion and from embryonic stem-cell research.
Now I will grant two things.  First, many people of good will don't see the argument against embryonic stem-cell research.  Second, many, nay most, of those arguing against such research are religious. Yet it does not follow from this that 1) the argument against such research is wrong and 2) that the reasons for prohibiting such research are religious.
There are other problems with the op-ed but I do think he misapprehends the arguments against embryonic stem-cell research and does so in a way that would call into question the justification for his own work against abortion.

March 30, 2005 in Perry, Michael | Permalink | TrackBack (2)

Senator Danforth

Senator Danforth has always struck me -- and still does -- as a serious, thoughtful, and decent person and public servant.  I was sorry, then, to learn from Michael that Danforth has joined the chorus of New York Times columnists who see in the Schiavo case and the stem-cell-research debate little more than the ambitions and political agenda of a political party in the grip of "conservative Christians."

Danforth's piece -- as one would expect from him -- lacks the bile and venom of recent pieces by Frank Rich ("It is a full-scale jihad that our government signed onto last weekend"); Maureen Dowd ("Are the Republicans so obsessed with maintaining control over all branches of government . . . that they are willing to turn the nation into a wholly owned subsidiary of the church?"); and Paul Krugman ("The Schiavo case is, indeed, a chance to highlight what's going on in America.  One thing that's going on is a climate of fear for those who try to enforce laws that religious extremists oppose.")  (As Rob has already discussed, Krugman regards as "extremists" -- as just a few steps removed from the Taliban or those who murder abortion providers -- pharmacists with religious scruples about abortion pills and those who think Democratic senators ought not to filibuster conservative judicial nominees.)

Two quick points:  First, Danforth is simply wrong -- not alone, but still wrong -- to assert that opposition to embryonic stem-cell research or to causing Ms. Schiavo's death by ending ANH is to impose a "sectarian agenda."  Neither Leon Kass nor Nat Hentoff, for example, are conservative Christians.  Second, Danforth states that "[w]hile religions are free to advocate their own sectarian causes, the work of government and those who engage in it is to hold together as one people a very diverse country."  "At its best, religion can be a uniting influence, but" -- he worries -- "in practice, nothing is more divisive."  I do not believe, though, that the standard according to which "religion" should be judged is whether or not it yields political unity and harmony.


March 30, 2005 | Permalink | TrackBack (2)

Religion and Politics ... Politics and Religion

John C. Danforth, a former U.S. senator from Missouri and an Episcopal minister (who resigned in January as U.S. ambassador to the United Nations), makes some interesting comments about the Republican Party in an op-ed in this morning's New York Times.   To read the piece, click here.

Michael P.

March 30, 2005 in Perry, Michael | Permalink | TrackBack (0)

Pharmacists and Political Anarchy

As I've noted previously, the battle over pharmacists' ability to take moral responsibility for their professional conduct continues to heat up.  Yesterday the Washington Post ran a front-page article on the issue, including the story of:

Neil T. Noesen, who in 2002 refused to fill a University of Wisconsin student's birth control pill prescription at a Kmart in Menomonie, Wis., or transfer the prescription elsewhere. An administrative judge last month recommended Noesen be required to take ethics classes, alert future employers to his beliefs and pay what could be as much as $20,000 to cover the costs of the legal proceedings. The state pharmacy board will decide whether to impose that penalty next month.

According to the New York Times' Paul Krugman, the trend toward "conscience" legislation to protect pharmacists like Noesen is another example of rampant religious extremism in this country:

The closest parallel I can think of to current American politics is Israel. There was a time, not that long ago, when moderate Israelis downplayed the rise of religious extremists. But no more: extremists have already killed one prime minister, and everyone realizes that Ariel Sharon is at risk.

America isn't yet a place where liberal politicians, and even conservatives who aren't sufficiently hard-line, fear assassination. But unless moderates take a stand against the growing power of domestic extremists, it can happen here.

So unless we use the coercive power of the state to force all pharmacists to make available all legal pharmaceutical products, we are inviting political assassinations and anarchy.  And Krugman styles himself a moderate?


March 30, 2005 in Vischer, Rob | Permalink | TrackBack (0)

Tuesday, March 29, 2005

More on the Bible and Jury Deliberations

Rob blogged about the recent decision from the Colorado Supreme Court, invalidating a death sentence after jury members consulted the Bible -- an actual, physical text -- during deliberations.  My reactions to the case, and to the dissent, are the same as Rob's.  Here's some language from the majority's opinion: 

We do not hold that an individual juror may not rely on and discuss with the other jurors during deliberation his or her religious upbringing, education, and beliefs in making the extremely difficult "reasoned judgment" and "moral decision" he or she is called upon to make in the fourth step of the penalty phase under Colorado law. We hold only that it was improper for a juror to bring the Bible into the jury room to share with other jurors the written Leviticus and Romans texts during deliberations; the texts had not been admitted into evidence or allowed pursuant to the trial court's instructions.

We expect jurors to bring their backgrounds and beliefs to bear on their deliberations but to give ultimate consideration only to the facts admitted and the law as instructed. The judicial system works very hard to emphasize the rarified, solemn and sequestered nature of jury deliberations; jurors must deliberate in that atmosphere without the aid or distraction of extraneous texts that could prejudicially influence the verdict.

The written word persuasively conveys the authentic ring of reliable authority in a way the recollected spoken word does not. Some jurors may view biblical texts like the Leviticus passage at issue here as a factual representation of God's will. The text may also be viewed as a legal instruction, issuing from God, requiring a particular and mandatory punishment for murder. Such a "fact" is not one presented in evidence in this case and such a "legal instruction" is not the law of the state or part of the court's instructions.

Thanks to Ann Althouse.


March 29, 2005 | Permalink | TrackBack (0)