Tuesday, April 26, 2005
More on Capital Punishment, By Way of Gerry Whyte
[Received this message from Gerry Whyte of Trinity College, Dublin:]
Further to your recent posting on MOJ, you might be interested in the following extract from a letter by a colleague, Professor Finbarr McAuley, in University College Dublin published in today's Irish Times:
[The] claim that the "last century was the first time the church...condemned the death penalty" is wrong by a margin of 800 years. The death penalty was roundly condemned by canon 18 of the Fourth Lateran Council in 1215.
Moreover, the inspiration for the Church's long-standing antipathy to all forms of blood punishment, including the death penalty, did not come from the human sciences ... but from [the] discipline of theology. The decisive argument had to do with the risk to the immortal soul believed to be associated with the shedding of human blood. Although this was a theological argument developed by the Latin fathers of late antiquity, it was taken up by the canon lawyers of the 12th and 13th centuries, who made it the cornerstone of the new concept of voluntary homicide.
Because the medieval canonists defined the mortal sin of homicide as including all forms of negligent and unjustified killing (as well as otherwise lawful killings done with an improper motive), Pope Innocent III, who convened the Fourth Lateran Council, decided that the only safe course was to ban priestly involvement in any procedure, whether judicial or surgical, which entailed the risk of wrongful killing thus defined, thereby effectively bringing to an end the centuries-old practice of trial by fire and water and inaugurating the Church's long and honourable association with an enlightened penology of rehabilitation.
... [It] is depressing, if sadly predictable, to learn that theological studies in the modern age do not appear to include an appreciation of the enduring contribution to legal civilisation made by the Catholic theologians and canon lawyers of the medieval period.
Is it any wonder that the new pontiff, himself a distinguished theologian, seems to view the blinding certainties of its practitioners with modified rapture? - Yours etc.,
Prof FINBARR McAULEY, Faculty of Law, UCD, Dublin 4.
April 26, 2005 in Perry, Michael | Permalink | TrackBack (0)
Capital Punishment
Surely there are few in any issues a blog devoted to the development of Catholic legal theory should be more concerned with than the morality of capital punishment. The article excerpted below, The Right to Life, will appear in the May 12th edition of The New York Review of Books. To print/read the entire piece, click here. Some excerpts follow:
In her book Dead Man Walking, published in 1993, Sister Helen
explained how she first became involved with condemned prisoners, and
she traces the cases of three men whom she accompanied, as their
spiritual adviser, through their final days and hours. It was a
best-selling and highly influential book, its arguments given wider
currency by the film starring Susan Sarandon in the role of Sister
Helen. This new book appears at a time when the death penalty system is
in crisis. In 2000 James Liebman of Columbia University School of Law
led a team which surveyed four and a half thousand death penalty cases
and found "reversible error" in 68 percent of them. In his words—which
seem the more true, five years on—the system is "collapsing under the
weight of its own mistakes."
...
After his death, Sister Helen took O'Dell's body to Italy for burial, and was granted an audience with John Paul II. This was the climax of her campaign within the Catholic Church, and she credits the O'Dell case with helping to change teaching which had stood since the days of Saint Thomas Aquinas. When she began campaigning, many individual priests and Catholic laypeople were abolitionists, but the hierarchy was not, and in Dead Man Walking she tells of her encounters with an obstructive prison chaplain who incarnated the conservative, misogynist status quo. After her letters, and her visit to the Vatican in the wake of the O'Dell case, Pope John Paul spoke out unequivocally against the death penalty, and the Catholic Catechism was altered. Unfortunately, it was altered by the removal of words that specifically endorsed capital punishment, rather than by the addition of words to exclude it. There is plenty here for theologians and Catholic lawyers to argue over, so the change may not be quite the lasting triumph that Sister Helen thought it.
Among the promoters of the death penalty, Sister Helen picks out
Justice Antonin Scalia of the US Supreme Court for special odium. He is
a prominent Catholic; how can he vote against the Church's teaching?
"My morality and religious beliefs have nothing to do with how I vote,"
he says, and he aims to keep "personal predilections, biases, and moral
and religious beliefs" out of the process of constitutional
interpretation. Where does he leave them, the reader wonders, when he
goes to work? Is there a sort of depository or a left-luggage office
where you check in your personal experience and judgment, while you
shrink yourself to a cog or spring in the great machinery of the law?
...
Even if you cannot stand behind every argument the author makes, The Death of Innocents
is a deeply convinced and deeply convincing book. Now we know what's
wrong: racial bias, bias against the poor, inept counsel, overzealous
prosecutors trying to make a name, self-serving judges, missing
witnesses, careless science, coerced confessions. Add in the use of
jailhouse informants, the propensity of police officers to lie, and
their evident inability to reason about the facts of a case, and you
have a recipe for the continuing conviction and death of innocent
people.
...
As Sister Helen sees it, attempts to make the penalty more consistent have failed. Yet where defects are only procedural, they could be remedied; given political will and a bottomless public purse, possibly they could be fixed. If the bureaucrats were wise and the system fair—if the process met tightly defined legal criteria of objectivity—would it be all right to have a death penalty? Many would say yes. Sister Helen is clear in her view. "I don't believe that the government should be put in charge of killing anybody, even those proven guilty of terrible crimes." This is what the world would like to hear America say. You do not have to be a Christian, or have any faith at all, to support Sister Helen's basic position: "Every human being is worth more than the worst act of his or her life."
The death penalty is not wrong because it is inconsistently
administered. If it were fairly administered, it would still be wrong.
Finally, the issue is moral; a nation so God-besotted should be able to
grasp that. When the government touches a corpse, it contaminates the
private citizen. A modern nation that deals in state-sponsored death,
becomes, in part, dead in itself; dead certainly, to the enlightened
ideals from which America derives its existence as a nation.
__________
Michael P.
April 26, 2005 in Perry, Michael | Permalink | TrackBack (0)
Monday, April 25, 2005
A Student Responds to Reflections on Steinfels, John Paul the Great, and the JPII Generation
I want to share this email that I received in response to my posting on Steinfels and Catholic youth:
April 25, 2005 in Scaperlanda, Mike | Permalink | TrackBack (0)
The "95-10 Initiative"
According to this account,a "national group of pro-life Democrats has joined pro-life Democratic members of Congress, adoption agencies and pregnancy centers unveil a package of legislation designed to significantly reduce abortion in the next 10 years."
Rick
April 25, 2005 | Permalink | TrackBack (0)
Why Law Schools Matter (A Lot)
In response to Rick's question, I'm not certain exactly how a Catholic university best harnesses or nourishes the importance of its law school, but recognition of the school's importance must be an unmistakable dimension of the relationship. Given Catholicism's focus on the common good, the law is the vehicle through which a Catholic university can best engage (and hopefully transform) society. Law is our common language. As explained by one scholar who has never passed up an opportunity to quote himself:
The story of the legal profession has been told through the religious imagery of the priesthood. While this analogy certainly has a bit of rhetorical flourish at its core, it reflects the widespread perception of the unifying, central role that the law plays in modern American society. Past eras may have looked to religion as the common framework under which everyday existence proceeds, but the law had long since usurped it. So while priests, as administrators providing access to that unifying framework in their role as mediators between God and man, were essential figures in the collective life of society, today their place has been taken by lawyers, who provide access to our common framework of legal rights and privileges.
Perhaps Al Pacino put it best in the otherwise forgettable movie, The Devil's Advocate, when, playing the role of Satan-as-law-firm-partner, he remarks to an associate, "We're the new priesthood, baby."
Rob
April 25, 2005 in Vischer, Rob | Permalink | TrackBack (0)
Conscience and Politics: Bush vs. Cuomo
Notre Dame philosophy prof John O'Callaghan offers the following response to my earlier post on the role of conscience in the politics of Jeb Bush and Mario Cuomo:
I thought your question Saturday, about whether there is any difference between Gov. Cuomo and Gov. Bush on the responsibilities of Catholic politicians given the deliberations of their consciences, very interesting. Granted the wisdom of avoiding judging the inner depths of anyone’s conscience, it seems that we can at least take what they say about their consciences as food for speculative discussion about the nature of conscience, and that is how I will act here. I will treat them as types rather than actual individuals. And for clarity’s sake let us suppose that Gov. Cuomo’s position was one of privately opposing abortion according to Catholic teaching as an intrinsically evil act, but publicly supporting it. In other words, suppose his public policy stance was not one of mere toleration of an evil that he was working to eliminate, but actual support in the public forum. (As time has lapsed and memory fades, I am a little wary of attributing that stark a position to the actual person, as he was very talented at “nuancing the problematic.” On the other hand, I don’t recall at all that his position was one of simply tolerating a policy he hoped in the future to eliminate. But here I’m just constructing ideal cases for the sake of the question.) One of your questions appears to be whether there is any real difference in the exercise of Gov. Cuomo’s conscience and Gov. Bush’s as Catholic politicians in fulfilling their duties as governors.
I think the answer to that question is yes. Gov. Cuomo struggled in his conscience over policies promoting intrinsically evil acts. Gov. Bush struggles in his conscience over a policy that does not promote an intrinsically evil act, however much it is an act that the Church teaches ought to be done in very rare circumstances, and however much it may be badly pursued in particular circumstances. The deliberations of their respective consciences are different, because the material content of those deliberations are different. We often have a temptation to separate the formal features of our practical reasoning from the material, akin to the way in speculative argument we may talk about the logical structure of an argument, modus ponens for example, as distinct from the content of that argument. In that sense we might say that the biologist and the chemist made the same argument, though one was talking about cows and the other numbers. With regard to conscience, abstracting away what the consciences are actually deliberating over, we might then be inclined to say that with respect to their consciences there is really not much difference between the two.
The charge of hypocrisy, for example, is the expression of our moral disapprobation toward purely formal features of our practical reasoning and action. You can call anybody a hypocrite because of the way his actions contradict his words. Doesn’t matter at all what the material contents of his words or actions are. A hypocritical shopkeeper versus a hypocritical murderer versus a hypocritical politician—they are all hypocrites. That’s probably why we find it so easy to condemn others for being hypocrites formally, but very difficult to do so for being any number of other things materially. We tend toward a soft relativism of material moral facts, and a hard moral absolutism about the formal features of practical reasoning—“who am I to judge?” versus “he’s such a hypocrite!”. Pope Benedict XVI analyzes a similar kind of separation of “free will” from the “truth” here.
In reality, though, we never actually argue practically in a purely formal way, as our arguments always have material content. Whom would we rather meet, a hypocritical shopkeeper, politician, or murderer?
So here is an analogy. Is there any significant difference in the struggles of conscience of someone promoting a policy of torture and someone pursuing a policy of removing children from their parent’s home? I think the answer to that is yes. Surely taking a child away from its parents is an act that can be good, and may be done, but presumably only in very rare cases. We want the person promoting the latter to struggle with an actual decision in particular circumstances as to whether this is the best thing to do here and now. Such a struggle would seem to be a sign of a good conscience, even if he is not doing a good job of it here and now; there is reason for hope. One finds oneself struggling in one’s conscience with decisions about taking children away from their parents as one exercising one’s responsibility for promoting the common good in a certain governmental role. The person may feel guilt over making a bad decision, though his actually having to make a decision at all here is not reason for feeling guilt ipso facto. In the case of the former, torture, we don’t want someone to be struggling with such a decision at all; that someone is engaged in such a struggle of conscience is not a good sign, nor does it give reason for hope. Is one struggling with one’s conscience in promoting torture exercising one’s responsibility for promoting the common good? No. They’ve lost sight of it. It is ipso facto a reason for feelings of guilt. The actual difference between the two is a difference between the exercise of prudence, even if badly carried out, and the exercise of what I called, following Aristotle, “cleverness” here.
So it strikes me that the difference in the material positions pursued makes a significant difference to what can be concluded from Gov. Bush’s remarks. Gov. Cuomo’s remarks provided evidence for attributing to him the view that good governance by a Catholic politician may involve promoting in public polices that facilitate acts one believes are intrinsically evil, like torture, slavery, and abortion. Gov. Bush’s remarks provide no such evidence for attributing that view to him.
At the end of the first book of the Republic, Plato considers a band of thieves, and the fact that they seem to need to act justly toward one another if they are to be successful in the injustice of their thievery directed at the larger community they live within—honor among thieves and all that. As the Republic winds on, however, we come to understand that such justice among thieves may have the appearance of justice, but it is no justice at all.
UPDATE: William & Mary law prof Eric Chason echoes these sentiments by drawing my attention to Pope Benedict XVI's earlier writing:
Reading your post about Cuomo and Bush (along with the thoughtful follow ups)brought to mind the confidential "Kerry letter" that was attributed to then Cardinal Ratzinger last summer. In particular,
"3. Not all moral issues have the same moral weight as abortion and euthanasia. For example, if a Catholic were to be at odds with the Holy Father on the application of capital punishment or on the decision to wage war, he would not for that reason be considered unworthy to present himself to receive Holy Communion. While the Church exhorts civil authorities to seek peace, not war, and to exercise discretion and mercy in imposing punishment on criminals, it may still be permissible to take up arms to repel an aggressor or to have recourse to capital punishment. There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
April 25, 2005 in Vischer, Rob | Permalink | TrackBack (0)
A Question about the Role of Law Schools in Great Catholic Universities
A few days ago, I had a very enjoyable conversation with a Notre Dame colleague -- who does not teach in our law school -- about the place of a law school in a university, particularly in a Catholic university that aspires to be "great." Many of us here at MOJ have thought, and written, about what it means, and why it might matter, to be a "Catholic law school." I'd like to invite reactions on a slightly different question -- one that necessarily points toward issues sounding in "Catholic legal theory" -- namely, what is the role of a law school in a Catholic university? Is there something about contemporary culture and institutions -- in America, particularly -- that suggests that any university hoping to be, work, and engage the world in a way that is distinctively Catholic must place special importance on the mission and flourishing of a law school? Any thoughts?
Rick
April 25, 2005 | Permalink | TrackBack (0)
Salt of the Earth
I took Peter Steinfel’s advice – to “get a clearer sense” of Pope Benedict XVI’s “vision of the world” and sense of his priorities, I spent the weekend reading Peter Sewald’s book-length interview with Cardinal Ratzinger, The Salt of the Earth: The Church at the End of the Millennium (Ignatius Press 1997). I was deeply impressed by the breadth of his sweeping vision, and—I would venture to say—his mystic depth. Below are a few of my favorites—but I’d encourage anyone who wants a window into what’s ahead to read the book. Topics include his personal biography and reflections on the “canon of criticism,” and current questions for the new millennium (institutional renewal, dialogue with other religions, dialogue with the world, etc.). Because the questions are posed by a secular journalist, the resulting text is frank, open, spontaneous, and very readable.
In response to the question, how many ways are there to God: “As many as there are people. For even within the same faith each man’s way is an entirely personal one. We have Christ’s word: I am the way. In that respect there is ultimately one way, and everyone who is one the way to God is therefore in some sense also on the way of Jesus Christ. But this does not mean that all ways are identical in terms of consciousness and will, but, on the contrary, one way is so big that it becomes personal for each man.” (32)
In response to a question about the public image of the Church as a severe and ossified tribunal: “ . . . one must also ask how the Church herself, instead of simply scolding the media, can properly adapt her public presentation. In the inner life of faith, where the real core of the faith is proclaimed, individual elements can be correctly related to one another, and in that case such prohibitions could have their proper place in a much larger and positive whole. . . . The Church has to consider how to establish the right proportion between internal proclamation, which expresses a common structure of faith, and how she speaks to the world, where only part of what she says will be understood.” (171-72).
On priesthood, he reflects that demands for women’s ordination are understandable when clericalism dominates, when “importance is attributed to the person of the priest . . . He is the real center of the celebration. In consequence, one has to say: Why only this sort of person? When, on the contrary, he withdraws completely and simply present things through his believing action, then the action no longer circles around him. Rather, he steps aside and something greater comes into view . . .” (176).
On the role of the Bishop: “The officeholder ought to accept responsibility for the fact that he does not proclaim and produce things himself but is a conduit for the Other and thereby ought to step back himself . . . he ought to be one who serves, who is available to the people and who, in following Christ, keeps himself ready to wash their feet. In St. Augustine this is marvelously illustrated. . . . he was really constantly busy with trivial affairs, with footwashing, and [he was ready] to spend his great life for little things, if you will, but in the knowledge that he wasn’t squandering it by doing so. That would, then, be the true image of the priesthood. When it is lived correctly, it cannot mean finally getting one’s hands on the levers of power but, rather, renouncing one’s own life project in order to give oneself over to service.” (192-93).
On a celibacy: “The renunciation of marriage and family is thus to be understood in terms of this vision: I renounce what, humanly speaking, is not only the most normal but also the most important thing. I forego bringing forth further life on the tree of life, and I live in the faith that my land is really God—and so I make it easier for others, also to believe that there is a kingdom of heaven. I bear witness to Jesus Christ, to the gospel, not only with words, but also with this specific mode of existence, and I place my life in this form at his disposal.” (195)
“History as a whole is the struggle between love and the inability to love, between love and the refusal to love. This is also, in fact, something we are experiencing again today, when man’s independence is pushed to the point where he says: I don’t want to love at all because then I make myself dependent and that contradicts my freedom. Indeed, love means being dependant on something that perhaps can be taken away from me, and it therefore introduces a huge risk of suffering into my life. Hence the express or tacit refusal . . . Whereas the decision that comes from Christ is another: Yes to love, for it alone, precisely with the risk of suffering and the risking of losing oneself, brings man to himself and makes him what he should be. I think that that is really the true drama of history . . . Yes or no to love.” (283)
Reflecting on the “substance” of faith: “The theology of littleness is a basic category of Christianity. After all, the tenor of our faith is that God’s distinctive greatness is revealed precisely in powerlessness. That in the long run, the strength of history is precisely in those who love . . .” (20)
April 25, 2005 in Uelmen, Amy | Permalink | TrackBack (0)
Martin Marty on Benedict XVI
Considering Pope Benedict XVI
-- Martin E. Marty
Back from relative hiding on mounts and in wastelands during a papal funeral and a papal election, I have returned to the real world. Asked frequently for my take on Pope Benedict XVI, I have this to offer:
-- Benedict XVI is a good choice of name. We wish him benediction.
-- I've tracked him since 1964 (at Vatican II) through his significant turn rightward around 1968, and find him consistent ever since. No surprises.
-- He is conservative. So? All the cardinals appointed by John Paul II are so. The issue is not "how conservative will he be?" but "how will he be conservative?" -- meaning how expansive, open, and interactive he may be with other Catholics, other Christians, other religions, and secular citizens.
-- As they did with John Paul II, Protestants will largely hold their fire, knowing that the profound and agonized criticisms will come from the pope's fellow Catholics.
-- Thus far, there have been more grumblings from the "Catholic right" about attacks from the "Catholic left" than there have been attacks. Not all Catholics bow low enough to please the right. But many lapse into respectful sullenness in a "give the pope a chance" posture. They will criticize when he gets going, when actions displease.
-- My own citizen-based grumbles: His intervention in the American political campaigns last year broke tradition, portended more involvement, and would have been greeted as a confirmation of non-Catholic Americans' worst fears -- except that many citizens, welcoming his positions, departed from their own long-standing "no papal intervention" traditions. As for world politics: Will his firm stand against contraception lead him to persist in condemning condoms, with no exceptions -- even, for example, in Africa, where that position contributes to many thousands of deaths?
-- Ecumenically this pope is a hard-liner against Anglican orders. He often regards believers who are not in the "papal obedience" orbit to be good individual Christians, though not really in churches as part of the one body of Christ. But two cheers from this Lutheran: he supported and no doubt rescued the 1999 "Joint Declaration" on justification between the Lutheran World Federation (which he wishes were a church) and the Vatican, and has made friendly-to-Luther noises since as early as 1966.
-- He's maybe a bit too ready to slap the adjective "infallible" in front of many current church teachings, for example, against the ordination of women. So far, infallibility has been invoked formally only two times, with a century between them: once in defining the Immaculate Conception and again in defining the Assumption of the Blessed Virgin. It would be nice to wait another hundred years before it's invoked again -- if it has to be used at all.
-- Was the selection of a Western European who met indifference and hostility on many Western fronts of Catholicism a sign that the cardinals have given up on Europe, or the expression of a desperate hope that he can turn things around? Wait and see.
-- There were too many claims that the politicking surrounding the election of the pope was the work of the Holy Spirit. Yes, Christians can believe it was in the end the Spirit's work -- but this came to be overstated. Hover now, as-if-winged Spirit.
April 25, 2005 in Perry, Michael | Permalink | TrackBack (0)
Sunday, April 24, 2005
JPII and the future of the Church: Reflections on Steinfels' Essay
Responding to Michael P's post, "Recommended Reading: Peter Steinfels," Jason Adkins blogging at the Seventh Age writes: "The religiosity of Catholic youth in America is actually exploding, but I would wager in the 18-35 demographic, not the teenage demographic." He isn't surprised by the lack of religiosity among those under 18 because they largely live a pampered life ("soft America") allowing them (for a time) to evade the great questions of purpose and meaning. Once these questions come to the fore, JPII and the Church provide answers in a beautiful and inspiring way.
I'll throw in my two cents on the possible disconnect between JPII's youth appeal and the religiosity of young American Catholics. My perception is that John Paul II inspired a core group of young Catholics who are now in love with Christ and His Church. This core group of Catholics will evangalize their peers, and if not their peers, their peers' children (if they have any). This core group will provide the priests and religious of the next generation. The vast majority of this core will not enter into religious life, but they will have larger than average families. In other words, it is way too earlier to taste-test the fruits of JPII's appeal to the youth.
April 24, 2005 in Scaperlanda, Mike | Permalink | TrackBack (0)