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.

Saturday, August 27, 2005

Mike Schutt's additions to the booklist

Mike Schutt has these recomendations:

1. Augustine, City of God

2. A.P. D'entreves, Natural Law

3. O'Donovan and O'Donovan, From Irenaeus to Grotius: A Sourcebook on
Christian Political Thought

I'll also take this opportunity to remind our readers of his fine bibliography, Law and the Biblical Traditon:  Select Bibliography for Christian Law Students, and another bibliography, The Catholic Dimensions of Legal Study:  The Catholic University Law School Annotated Bibliography.

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

Interesting church-property case

This news story describes a recent ruling by a federal bankruptcy judge that -- contrary to the arguments of the Diocese of Spokane -- the Diocese owns the parishes and schools in the diocese, and that these properties are therefore available to the Diocese's creditors, including sex-abuse victims.  The Diocese had "argued that the properties belong to individual parishes, not to the diocese, and therefore were not subject to liquidation."

In her ruling, [Judge] Williams tackled thorny church-state issues that are being closely watched nationwide. Among the most important: whether civil law would trump church law on the issue of who owns parish property.

Under Catholic Church law, individual parishes own their property. And while the bishop holds legal title to parish property and schools, the church considers such property to be held in trust for the benefit of parishioners. The diocese argued that any decision to the contrary would violate the church's First Amendment rights in that the state essentially would be forcing the bishop to violate church law.

In her ruling, . . . the bankruptcy judge said [Bishop] Skylstad had voluntarily entered into bankruptcy court. She said that though the dispute did involve a church, the case was not an internal church dispute and therefore civil law took precedence.

Further, she said it was not a violation of the First Amendment to apply federal bankruptcy law or state law to determine what property the diocese owns.

I tend to be a church-autonomy hawk.  Still, this ruling -- as described in the article, anyway -- seems right.  I'm not an expert in this area, but I'm inclined to think that, having cast the finances -- and perhaps the future -- of the Diocese before the bankruptcy court, Bishop Skylstad can hardly complain that the bankruptcy court is doing what bankruptcy courts do.  (Thanks to Amy Welborn).

Do others disagree?


Update:  Professor Friedman reports, at "Religion Clause", on another interesting church-autonomy / no-entanglement case, involving New York's divorce law and Jewish marriage law, and on yet another one, involving judicial resolution of collective-bargaining disputes involving Catholic schools.

August 27, 2005 | Permalink | TrackBack (1)

Cuomo on Roberts and Religion

Here is Mario Cuomo's L.A. Times op-ed, "Put a little faith in Roberts:  Go ahead, ask him about his religious beliefs.  As long as he puts the Constitution first, there should be no problem." 

Well, not to be too flip, but there actually would be a problem -- wouldn't there be? -- if Roberts "put the Constitution first," ahead of his "religious beliefs".  Cuomo's real point, of course, is this:

The question about Roberts' beliefs in effect asks whether he would impose his own personal test, religious or otherwise, on his reading of the Constitution: Would he say he might ignore his oath to support the Constitution if faced with an overriding personal belief?

Now, as Gov. Cuomo knows full well, there is zero chance that Judge Roberts will say -- or that Judge Roberts believes -- he should "impose his own personal [religious] test . . . on his reading of the Constitution."  Presumably Gov. Cuomo -- as much as he frustrates me, I have no doubt that he is a decent man -- strongly believes that being a public official does not excuse acting wrongly (lying, cheating, stealing, etc.).  So, why does Cuomo think the question should be asked?  Payback, apparently.  Here is Cuomo's opening:

FOR MORE THAN 20 years, some conservative clerics and politicians have bitterly criticized Catholic public officials for refusing to use their office to "correct" the law of the land. They demand that Catholic officials make political decisions reflecting their religious belief that abortion is tantamount to murder and work to overturn Roe vs. Wade and other laws that make abortion legal.

Most of the targeted officials have been Democrats such as Ted Kennedy, Gerry Ferraro and John Kerry. But now that Judge John G. Roberts Jr. — their candidate — has been nominated for the U.S. Supreme Court, the shoe is on the other political foot. Conservatives are outraged that another Catholic public official might be considered deserving of the same criticism. They demand that Roberts not be asked about personal beliefs, including religious ones, because it would amount to a "religious test" prohibited by the Constitution.

So, Cuomo -- like E.J. Dionne, in his own recent editorial piece -- contends that consistency somehow requires "conservative" Catholics not to object to questioning about Roberts's religion, becuase they have (he says) "bitterly criticized Catholic public officials for refusing to use their office to 'correct' the law of the land" and have "demand[ed] that Catholic officials make political decisions reflecting their religious belief that abortion is tantamount to murder[.]"  Cuomo wants Roberts to be asked about religion, because he thinks it unfair that he (and Senator Kerry, and Mayor Rudy G., and Rep. Ferraro, etc.) were challenged by co-religionists.

I imagine it is comforting for Gov. Cuomo to imagine that he and Judge Roberts are similarly situated, and that his own support for abortion rights (and his opposition even to regulations of abortion that might be permissible under Roe and Casey) is not meaningfully distinguishable from, say, Justice Roberts's decision to vote in accord with the fact (and it is a fact) that the Constitution permits the death penalty, notwithstanding its immorality.

But the complaint of "conservatives" about politicians like Cuomo has not been -- at least, in my view, it should not have been -- that these politicians have not "ma[d]e political decisions reflecting their religious belief that abortion is tantamount to murder[.]"  It has been that (a) they are making political decisions that do not provide the protection to unborn children that justice -- not "religious belief[]" -- requires and (b) that they have, for political expediency, embraced a reading of the Constitution that is mistaken.  Roe v. Wade was wrongly decided, not because it conflicts with Catholic teaching, but because it cannot be squared with the Constitution's text, history, and structure.

It is also sad to hear Gov. Cuomo characterizing Catholics' opposition to abortion as reflecting nothing more than their "personal" "religious beliefs."  After all, the Catholic claim is not that abortion's wrong-ness is revealed, or a mystery of the Faith.  The Catholic claim that abortion is wrong -- which Gov. Cuomo refuses to support politically -- is not different from the Catholic claim that race discrimination is wrong.  These are moral claims, yes -- and maybe all moral claims are, in a sense, "religious" -- but I assume Governor Cuomo has no objection to political actors trying to use their office to bring about a more just, moral society (e.g., the Civil Rights Act, the Social Security Act, etc.).  The premise for Governor Cuomo's "I can't impose my personal religious beliefs on the Constitution" is, and has been for two decades, that the Constitution actually requires an near-unlimited abortion license.  But, it doesn't.  If we were talking about a conflict between religious belief and, say, the requirement that Representatives have attained the age of 25 years -- if we wondered whether Roberts's religion would compel him to require the seating of a 16 year old -- then the potential for that conflict might be worth exploring.  But we are not.

Finally, the whole "would Justice Roberts put his oath to the Constitution above his faith?" question is misconceived, in my view.  In an honest world, Roberts would say, "What a strange question.  Of course the Faith comes first.  No, I certainly would not, in exercising my office, culpably cooperate with evil.  But there is nothing about my oath to uphold the Constitution, properly understood, in my capacity as an appellate judge, that is remotely likely to conflict with my moral obligations or religious commitments.  The same cannot be said for you, though, Senator.  After all, you are responsible for many of the laws that I am charged with interpreting."

Am I being unfair to Gov. Cuomo?  Am I letting Roberts off too easy?


August 27, 2005 | Permalink | TrackBack (0)

Friday, August 26, 2005

Popular by Contract

Given our ongoing discussion of Pat Robertson's bizarre behavior this week, it bears noting that he appears to be even less of a spokesperson for evangelicals than we might think, as he is no longer dependent on attracting or keeping viewers with his espoused take on the world.  Christianity Today reports that:

Television and televangelism usually work through viewership. A show with few viewers won't stay on the air: On commercial television, no advertisers will buy space. In religious broadcasting, no donations will come in. But Robertson hasn't needed viewers for almost a decade. He has contractual obligations.

Many people have complained about the 700 Club to cable channel ABC Family, which airs it. But ABC Family has no choice. It is obligated under contract to air it. (The FCC may not be able to do anything, either)

In 1988, Robertson sold the Family Network to Fox for $1.9 billion.  Not bad, when you consider the channel was originally launched in 1977 through the donations of viewers who had been promised a Christian alternative to "secular" television, then taken public in 1992. CBN got $136 million from the sale. Robertson's Regent University got another $148 million. Robertson personally received $19 million, and the rest went to the Robertson Charitable Remainder Trust, which will fund CBN after Robertson and his wife die.

But the money wasn't the biggest part of the deal: Fox Family was required to air The 700 Club three times a day—and, if Fox sold the network, the obligation to air The 700 Club had to be part of that deal, too.

Cable World reported in 2001 that Robertson turned down hundreds of millions of dollars to renegotiate. Largely due to frustration that the 700 Club had disrupted its programming, Fox sold the network to the Walt Disney Company in 2001 for $3 billion and $2.3 billion in debt. Now ABC Family is obligated to air the program three times a day.

Hopefully reality will give folks pause before they attribute Robertson's "leadership" to the desires and inclinations of evangelicals (much less Christians more broadly).


August 26, 2005 in Vischer, Rob | Permalink | TrackBack (0)

Just War and the Leaderless State

Jonathan Watson offers another consideration to Steve's analysis of just war theory as applied to the assassination of Hugo Chavez:

although the just war analysis on assassination of Chavez looks at him as a confluence of two people (individual and leader), the proportionality idea needs an additional thought. My consideration is of him as a leader in a position of power. Whenever the leader of a country dies while in office, there is naturally a time of confusion while the power vacuum is filled. When the transition is planned for, such as is the case in the United States, where we have ready successors and electors to fill the gap if necessary, that time of confusion is short and tends toward the orderly. However, when the electoral are questionable, the leader holds power either through Machiavellian or other power politics, or succession is unplanned and unexpected, chaos could result.  In my (short) experience, such chaos often results in the deaths of innocents, as well as economic depression. This should be taken into account in any just war discussion on assassination.

Jonathan also has three more entries for our Catholic legal theory book list:

Christopher Lasch, The True and Only Heaven: Progress and Its Critics

Christopher Lasch, The Culture of Narcissism: American Life in an Age of Diminishing Expectations

Gratian, The Decretum, Treatise on Law


August 26, 2005 in Vischer, Rob | Permalink | TrackBack (0)

Congrats to Gerard Bradley

My colleague, Gerard Bradley -- who is, among other things, the director of Notre Dame's Natural Law Institute and co-editor (with John Finnis) of the American Journal of Jurisprudence -- is to be honored at this year's Annual Convention of the Fellowship of Catholic Scholars with the Cardinal Wright Award.  Gerry is a great friend, colleague, scholar, and citizen, and the award is richly deserved.


August 26, 2005 | Permalink | TrackBack (0)

Puritan Revolution and the Law of Contracts

I just received a copy of Professor Scott Pryor and Glenn Hoshauer's article, Puritan Revolution and the Law of Contracts, published as part of a symposium on the 150th anniversary of Hadley v. Baxendale, 11 Texas Wesleyan Law Review 291 (2005). 

I haven't yet read the article but thought I would share with you part of the abstract:  "Most legal historians have ignored the impact of the Protestant Reformation and the rise of Puritianism on the development of the common law. ... The Authors conclude that Puritan theology was irrelevant to assumpit and consideration ... [T]he Puritan emphasis on discipline - personal, social, and ecclesiastical - [however] represents an independent source of inluence on the development of the common law of contracts.  The disciplined life grew in cultural significance with the Reformation and the subsequent process of confessionalization. ..."

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

Another book for the list

OU law grad and self-described member of the "Rick Garnett fan club," Jason Reese, suggests reading Joseph de Maistre, especially On Sovereignty.

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

Thursday, August 25, 2005

Robertson, Chavez, and Just War Theory

I hasten to acknowledge at the outset that the only claim I have to expertise on the international law of the use of force and/or Catholic just war theory is two years of law school service on the Virginia Journal of International Law and having had one of the leading experts on that field as law school roommate and best man. Hence, I may be all wet on the following (although I tried to avoid that by being as inconclusive as possible!). But I offer it up as a start to turning the discussion from the question of whether Robertson is a crackpot to the merits of the underlying proposal.

There is an interesting discussion in the comment thread to a post on my personal criticizing Pat Robertson's comments about Hugo Chavez in which some folks are debating the Christian morality of war versus assassination. I've directed those folks to Marvin Olasky's thoughtful op-ed on the subject, but I wanted to flag it here as raising issues of Catholic just war theory.

Olasky opines:

The televangelist should have remembered Spiderman's message that "with great power comes great responsibility." By his blurting, Robertson aided Venezuelan autocrats such as Vice President Jose Vicente Rangel, who sarcastically said that assassination advocacy was "very Christian" and went on to argue that "religious fundamentalism is one of the great problems facing humanity." ...

... it's hard to see either general or specific biblical warrant for his fatwa. In general, as Paul wrote to Timothy, Christians are to pray "for all people, for kings and all who are in high positions."

Hugo Chavez is an evil tyrant, but so were many Roman emperors -- and Paul told Romans to "bless those who persecute you. ... Repay no one evil for evil, but give thought to do what is honorable in the sight of all." Last time I looked, "assassin" was not on the general list of honorable callings. Wartime is different, but last time I looked, we weren't at war with Venezuela.

Applying Old Testament history to current politics is sometimes exegetically tricky, but the wartime assassinations in Judges 3 and 4 -- Jael hammering a tent peg into Sisera's brain, Ehud the left-handed man thrusting his sword into the fat belly of the king of Moab -- also do not provide warrant for taking out Hugo Chavez. Nor do any of Christ's words or deeds suggest a WWJA (Who Would Jesus Assassinate?) list.

... God is the God of history. He raises up leaders and strikes them down. The Christian goal is to follow biblical principles, including "just war" ones, and not to create new orders. Christians who are careless bring dishonor to God's name by making many believe there is no difference between the pre-eminent religion of peace and the many religions of violence.

Olasky's comments suggest that the right inquiry would be to ask whether just war theory justifies assassinations. As Catholics, of course, I assume we would all agree with that, albeit focusing specifically on the Augustinian position.

First, here's an analysis arguing that assassination of political leaders during wartime is not inconsistent  with (secular) just war theory.

... what if the leaders are removed from the area of hostilities? Are they fair game? International law says they are. Therefore, the idea of assassination being morally wrong loses all meaning during war because the political leaders are legitimate targets. The moral equivalency of the "assassin" is the same as that of the coalition soldier fighting in the desert. It is the dysfunctional agreement during war: both sides try to kill the other side's forces, including the leaders.

I assume from Olasky's apparently careful phrasing that he would agree. On the other hand, however, here is a source positing that some will question that claim:

Political leaders such as Saddam Hussein or Fidel Castro, some have argued, are different: they are not obviously combatants, even where he has ultimate control over the military. Similar difficult questions concern countries where the commander of the military is a civilian, as in the United States. The question is of course further complicated by the problem of assigning combatant status at all when there is not a state of war, especially as regards the problem of terrorism, which takes place in what William Banks calls the “twilight zone between war and peace” (671).

Yet, even if just war theory would permit assassination of enemy leaders during wartime, does it follow that it permits peacetime assassinations of the leader of a state with whom we are at war? The second source cited above opines:

... it appears that the policy of assassination or targeted killing, though it may be morally legitimate in certain limited circumstances, must in general be considered impermissible under the Just War Doctrine. The principle of respect for human life does not in general allow premeditated, extrajudicial killings of specific individuals. Only in urgent situations or extreme circumstances, where there is no other means to avoid a given imminent harm, can assassinations be permitted. And to the extent the target is a political rather than a military leader, the presumption against assassination must be even stronger.

Presumably, those presumptions would have even more force in peace than in war, or at least I infer that Olasky would so conclude.

On the other hand, as Eugene Volokh notes, albeit without specific reference to the just war tradition, perhaps assassination would be licit as an alternative to war. As such, of course, the assassination would have to satisfy the core precepts of a just war (I've taken the list of element of Catholic just war from this source):

  • Just cause. War is permissible only to confront "a real and certain danger," i.e., to protect innocent life, to preserve conditions necessary for decent human existence and to secure basic human rights.
  • Competent authority. War must be declared by those with responsibility for public order, not by private groups or individuals.
  • Comparative justice. In essence: Which side is sufficiently "right" in a dispute, and are the values at stake critical enough to override the presumption against war? Do the rights and values involved justify killing? Given techniques of propaganda and the ease with which nations and individuals either assume or delude themselves into believing that God or right is clearly on their side, the test of comparative justice may be extremely difficult to apply.
  • Right intention. War can be legitimately intended only for the reasons set forth above as a just cause.
  • Last resort. For resort to war to be justified, all peaceful alternatives must have been exhausted.
  • Probability of success. This is a difficult criterion to apply, but its purpose is to prevent irrational resort to force or hopeless resistance when the outcome of either will clearly be disproportionate or futile.
  • Proportionality. This means that the damage to be inflicted and the costs incurred by war must be proportionate to the good expected by taking up arms.

As applied to Chavez, the analysis presumably would run as follows:

Just cause. What is the "real and certain danger"? As far as I can tell, Chavez is no saint, but there does not yet seem to be any real threat to innocent life or basic human rights.

Competent authority. Note that the competent authority here, namely the President, is bound by (although presumably could exempt himself from) executive orders banning assassination of foreign leaders.

Comparative justice. It's hardly clear that Chavez has done anything to us or his own people to justify an intentional extra-judicial targeted killing.

Right intention. Again, what's the just cause?

Last resort. We barely seem to be engaged with Chavez these days, let alone exhausting all alternatives to war.

Probability of success. Who knows? But they tried to kill Castro for years with often humorous failure to show for it.

Proportionality. Again, what has Chavez done that would justify taking him out?

In sum, even if assassination can sometimes be justified either in the context of or as an alternative to just war, it hardly seems that the Chavez case rises to the necessary level.

August 25, 2005 | Permalink | TrackBack (0)

Booklist continued

Professor Patrick Quirk has a few suggestions to add to our booklist:

1. Etienne Gilson, The Christian Philosophy of St. Thomas Aquinas

2. Jude P. Dougherty, Western Creed, Western Identity

3. Gray et al., the Philosophy of Law, An Encyclopedia (2 vols)

4. Pinckaers O.P., Morality: The Catholic View

5. Nichols O.P., Catholic Thought Since the Enlightenment

6. Father Copleston's voluminous work on the history of philosophy

7. Simon Lee, Law and Morals

8. Glendon, A Nation Under Lawyers

August 25, 2005 in Scaperlanda, Mike | Permalink | TrackBack (0)