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.

Wednesday, November 30, 2005


By way of a first answer to the question of Michael Perry, whom I love: If the Church "ruled" that "persons of African ancestry could not be ordained," Patrick would be shocked, awed, and confused.  But, mercifully, the same Patrick doesn't and won't have to confront that crisis; the Church won't so "rule[]."  And, for the record, I have taken no position here (or elsewhere) on whether gay men (people?) are in fact called by God to the ministerial priesthood; my position is that on this question I (shall) seek to accept the answer given by the Church.  For the sake of the discussion, however:  Was there a non-discrimination norm seeking to bind Christ when he called the apostles to their priestly ministry?  Does Christ's exemplary charity entail or reveal that God cannot or does not, on account of an equality-of-equal-service norm, call some (but not others) to such (holy) office?  The Church doesn't (and, to my knowledge, never has) taught that ethnicity is part of what Christ taught about His holy priesthood.  That the Church would now -- in a world that more and more denies the essential and consequential difference between homosexuality and heterosexuality which the Church continues to affirm-- speak afresh to sexuality's part in the ministerial priesthood is as it should be.  Susan S. is of course right that the documents sounding in terms of "homosexuality" are of compartively recent genesis; whether the Church's teaching on homosexuality as such is a flash in the pan is another question, which I referenced with my observation that new wrongs call forth new declarations of (new) rights.  Returning to the question of the ministerial priesthood in particular:  "Discrimination is the wrong issue/question, as concerns the life of the Church as we're discussing it here; the sources of officia and munera are the heart of the matter, as I see it."  The Church's teaching on homosexuality should not be a cause for our surprise, whatever one may think of the teaching; the recent Instruction as it concerns the necessary conditions for admission to (the seminary leading to) ministerial priesthood is a matter that will be well debated by competent theologians in service of the Church. 

November 30, 2005 in Brennan, Patrick | Permalink | TrackBack (1)

Engaging the Culture, Engaging the Church

I appreciate the humility underlying Michael S.'s conception of his role as "helping the world see through the Church's eyes," but it triggers in my mind a broader question as to what the proper scope and limits of the Catholic legal theory project are.  Is the project simply to engage the legal culture with the Church's truth claims?  Or are we also to engage the Church with truths discovered -- or at least helpfully articulated -- by the legal culture?  Maybe the eligibility requirements for the priesthood are not readily amenable to insights derived from lives in the law (other the lawyer's natural inclination to hold up the current policy to the logic of past teachings), but won't there be other areas where legal theorists will have something to say, not just from the Church, but to the Church?  I'm not just talking about prudential judgment regarding the application of theological claims to the legal system.  For example, the political theory insights of John Courtney Murray and others produced some dramatic shifts in the Church's stance on religious liberty -- shifts that encompassed the theological claims underlying religious liberty, not just the implementation of fixed theological claims in the political culture.  So while Catholic legal theorists are not necessarily equipped to enter into the ongoing theological discourse within the Church, don't claims grounded in legal theory have the potential to shift theological discourse? 

To be clear, I don't quibble with the thrust of Michael S.'s reflection, and I don't think the Catholic legal theory project should ever become the let's-make-Catholic-legal-theory-more-like-liberal-legal-theory project, but isn't the bridge we're constructing between the Church and the legal culture open to traffic in both directions?


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

Christianity and the Legal Enforcement of Morality

[Another item of interest to MOJ-readers:]

Christianity and the (Modest) Rule of Law

University of Pennsylvania Law School
Harvard Law School

University of Pennsylvania Journal of Constitutional Law, Forthcoming                  
Harvard Public Law Working Paper No. 124


Conservative Christians are often accused, justifiably, of trying to impose their moral views on the rest of the population: of trying to equate God's law with man's law. In this essay, we try to answer the question whether that equation is consistent with Christianity.

It isn't. Christian doctrines of creation and the fall imply the basic protections associated with the rule of law. But the moral law as defined in the Sermon on the Mount is flatly inconsistent with those protections. The most plausible inference to draw from those two conclusions is that the moral law - God's law - is meant to play a different role than the law of code books and case reports. Good morals inspire and teach; good law governs. When the roles are confused, law ceases to rule and discretion rules in its place. That is a lesson that many of our fellow religious believers would do well to learn: Christians on the right and on the left are too quick to seek to use law to advance their particular moral visions, without taking proper account of the limits of law's capacity to shape the culture it governs. But the lesson is not only for religious believers. America's legal system purports to honor the rule of law, but in practice it is honored mostly in the breach. One reason why is the gap between law's capacity and the ambitions lawmakers and legal theorists have for it. Properly defining the bounds of law's empire is the key to ensuring that law, not discretion, rules.

[To download/print, click here.]

November 30, 2005 in Perry, Michael | Permalink | TrackBack (1)

"We are not Protestants, After All."

Steve Bainbridge asks, in his posting below:  "To what extent is it proper for a Catholic to dissent from non-infallible but presumably magisterial teaching?  We are not Protestants, after all."

No, but neither are we mindless.  As John Noonan said,  "the record is replete with mistakes--the faithful can't just accept everything that comes from Rome as though God had authorized it."   What mistakes, you ask?  Well, you may want to begin here:  Robert McClory, Faithful Dissenters:  Stories of Men and Women Who Loved and Changed the Church (2000).

For those who, like Steve, want to think about this issue, Father Bernard Hoose's writings are a good place to begin:  Bernard Hoose, "Authority in the Church," 63 Theological Studies 1207 (2002); Bernard Hoose, Authority in Roman Catholicism (2002).  See also this collection, edited by Father Hoose:  Authority in the Roman Catholic Church (2002).

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

Capital Punishment Revisited

[The following will be of interest to many MOJ-readers.]

No, Capital Punishment is Not Morally Required: Deterrence, Deontology, and the Death Penalty

Harvard Law School

Stanford Law Review, Forthcoming                  
Harvard Public Law Working Paper No. 125          


Cass Sunstein and Adrian Vermeule have argued that, if recent empirical studies claiming to find a substantial deterrent effect from capital punishment are valid, consequentialists and deontologists alike should conclude that capital punishment is not merely morally permissible, but actually morally required. While there is ample reason to reject this argument on the ground that the empirical studies are deeply flawed (as economists John Donohue and Justin Wolfers elaborate in a separate essay), this response directly addresses Sunstein and Vermeule's moral argument. Sunstein and Vermeule contend that recognition of the distinctive moral agency of the government and acceptance of "threshold" deontology (by which categorical prohibitions may be overridden to avoid catastrophic harm) should lead both consequentialists and deontologists to accept the necessity of capital punishment. This response demonstrates that neither premise leads to the proposed conclusion. Acknowledging that the government has special moral duties does not render inadequately deterred private murders the moral equivalent of government executions. Rather, executions constitute a distinctive moral wrong (purposeful as opposed to non-purposeful killing), and a distinctive kind of injustice (unjustified punishment). Moreover, acceptance of "threshold" deontology in no way requires a commitment to capital punishment even if substantial deterrence is proven; rather, arguments about catastrophic "thresholds" face special challenges in the context of criminal punishment. This response also explains how Sunstein and Vermeule's argument necessarily commits us to accepting other brutal or disproportionate punishments, and concludes by suggesting that even consequentialists should not be convinced by the argument.

[To download/print, click here.]

November 30, 2005 | Permalink | TrackBack (0)

Two questions

Two questions re the Congregation's recent instruction on "persons with homosexual tendencies" and the priesthood:

  1. Is this to be regarded as infallible teaching? Based on my understanding of infallibility, I assume the answer is no.
  2. If this is not infallible teaching, to what extent is it doctrinally licit for a Catholic to dissent? (I'm thinking here especially of Eduardo's comment that he "vigorously" dissents "from many Church teachings on sexuality, and on gay sexuality in particular.") To what extent is it proper for a Catholic to dissent from non-infallible but presumably magisterial teaching? We are not Protestants, after all.

I'm genuinely curious and interested in getting a discussion going. Rather than taking the liberty of opening the comments section here, however, I've crossposted these questions over at my personal blog and opened the comments section for discussion. Feel free to come over.

Because this is a highly sensitive issue, combining religion and sexuality, however, the usual requirements that comments be civil and relevant to the topic at hand will be enforced with special ruthlessness. In particular, the topic is not whether the Congregation made the right decision; the question is whether good Catholics can dissent from that decision and, if so, how. Thread hijacking will not be tolerated!

November 30, 2005 | Permalink | TrackBack (0)

Benedict(s) on Usury

Andrew Sullivan is beating up on Pope Benedict, as he is wont to do:

Benedict XVI's latest enthusiasm is, apparently, the "infamy of usury". The original formal condemnation of usury - i.e. interest-bearing loans - emerged at roughly the time the Church also created the formal doctrines condemning Jews and "sodomites" in the early medieval era, so it is not surprising Benedict would seek to re-emphasize it. He recently honored the National Anti-Usury Consultancy, and described interest-bearing accounts as a "social plague," and all financial interest as something that "annihilates the life of the poor." If you are versed in the ancient anti-Semitic tropes of the medieval Church, you will be unsurprised by this language. Just so all you Catholics with 401ks and interest-bearing bank accounts: according to this pope, you are enmeshed in evil. Welcome to the club. By the way, does the Vatican earn interest?

And Mark Shea is beating up on Sullivan, as he is wont to do:

Sullivan, like so many cradle Catholics, is of course largely ignorant of Scripture and it's repeated condemnation of lending money at interest. He is also ignorant of the facts pointed out by C.S. Lewis:

There is one bit of advice given to us by the ancient heathen Greeks, and by the Jews in the Old Testament, and by the great Christian teachers of the Middle Ages, which the modern economic system has completely disobeyed. All these people told us not to lend money at interest: and lending money at interest - what we call investment - is the basis of our whole system. Now it may not absolutely follow that we are wrong. Some people say that when Moses and Aristotle and the Christians agreed in forbidding interest (or 'usury' as they called it), they could not foresee the joint stock company, and were only thinking of the private moneylender, and that, therefore, we need not bother about what they said. That is a question I cannot decide on. I am not an economist and I simply do not know whether the investment system is responsible for the state we are in or not. That is where we want the Christian economist. But I should not have been honest if I had not told you that three great civilizations had agreed (or so it seems at first sight) in condemning the very thing on which we have based our whole life. (Mere Christianity)

Sullivan could, of course, have bothered to find that out before making such an ignorant comment. But that would have interfered with his flat-footed portrayal of Benedict as a conspiracy theorist at war with International Jewish Bankers. And, of course, it would get in the way of his rhetorical linkage of "sodomites" and the Jew who (we all know) the evil FuhrerPope seeks to persecute.

In the interests of promoting light rather than heat, let me suggest that what both parties could use is a recognition of the highly nuanced and contextual history of the treatment of usury in Catholic theology.

To begin with, to answer Andrew's question "does the Vatican earn interest," we turn to the venerable Catholic Encyclopedia, where we learn:

The Holy See admits practically the lawfulness of interest on loans, even for ecclesiastical property, though it has not promulgated any doctrinal decree on the subject. See the replies of the Holy Office dated 18 August, 1830, 31 August, 1831, 17 January, 1838, 26 March, 1840, and 28 February, 1871; and that of the Sacred Penitentiary of 11 February, 1832. These replies will be found collected in "Collectio Lacensis" (Acta et decreta s. conciliorum recentiorum), VI, col. 677, Appendix to the Council of Pondicherry; and in the "Enchiridion" of Father Bucceroni.

Interestingly, that article also instructs that while an earlier pope of Benedict's name (i.e., Benedict XIV) issued an encyclical against usury, which "was promulgated after thorough examination,' that encyclical was "addressed only to the bishops of Italy, and therefore not an infallible Decree."

Some scholars contend that the Church's teaching on usury evolved over time in response to the demands of a modern capitalist economy. The section on usury in Judge John Noonan's A Church That Can and Cannot Change: The Development of Catholic Moral Teaching is a good example of this line of argument.

In a review of Noonan's book, however, Avery Cardinal Dulles cogently argues that:

The biblical strictures on usury were evidently motivated by a concern to prevent the rich from exploiting the destitution of the poor. But when capitalists of early modern times began to supply funds for ventures of industry and commerce, the situation became different. Moralists gradually learned to place limits on the ancient prohibition, so as to allow lenders fair compensation for the time and expenses of the banking business, the risks of loss, and the lenders’ inability to use for their own advantage what they had loaned out to others.

These concessions do not seem to me to be a reversal of the original teaching but rather a nuancing of it. The development, while real, may be seen as homogeneous. In view of the changed economic system the magisterium clarified rather than overturned its previous teaching. Catholic moral teaching, like contemporary criminal law, still condemns usury in the sense of the exaction of unjust or exorbitant interest.

Likewise, David Palm observes:

On what specific principles is interest-taking moral or immoral? This was at the heart of the question of usury. Eventually the morality of interest-taking came to be understood as intrinsically bound up in the nature of the thing lent and the impact (or lack thereof) on the person lending it. It is immoral to take interest on the loan of a thing that is completely consumed by its use, for which one has no other use, and for which one incurs no loss by lending it.  ...

... it became clear that money in more modern economies—with competitive markets and almost unlimited opportunities for profitable ("fruitful") investment—did not suffer from the same tendency to be "unfruitful" as it had before. In the face of this change, the Church defined what is meant by usury. Session X of the Fifth Lateran Council (1515) gave its exact meaning: "For that is the real meaning of usury: when, from its use, a thing which produces nothing is applied to the acquiring of gain and profit without any work, any expense or any risk."

... A loan that was usurious at one point in history, due to the unfruitfulness of money, is not usurious later, when the development of competitive markets has changed the nature of money itself. But this is not a change of the Church's teaching on usury. Today nearly all commercial transactions, including monetary loans at interest, do not qualify as usury. This constitutes a change only in the nature of the financial transaction itself, not in the teaching of the Church on usury. "Still she maintains dogmatically that there is such a sin as usury, and what it is, as defined in the Fifth Council of Lateran "(ibid., 263).

In sum, Benedict XVI likely was not condemning all lending of money at interest, but rather simply unjust or inequitable interest charges.

November 30, 2005 | Permalink | TrackBack (0)

My two cents worth ...

I may be as dumb as I look--or dumber--but it seems to me that Eduardo's comments are compelling  ... and that Patrick's response doesn't touch it. Discrimination--that is, unjust discrimination, unloving discrimination, ignorant discrimination--is precisely what is at issue.  (Would Patrick say, if the magisterium ruled that persons of African ancestry could not be ordained, that "[d]iscrimination is the wrong issue/question, as concerns the life of the Church as we're discussing it here; the sources of officia and munera are the heart of the matter, as I see it.")

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

Consistency and Continuity

A couple of people have made reference to the consistency or continuity of Church teaching on homosexuality.  I think it important to keep in mind the time period we are talking about.    The teachings being referenced in this thread were all written within the last 30 years, which in the life of the Church is not very long.

In thinking about the period, it may be useful to remember that prior to the 1970s, homosexuality was viewed as an illness.  It was only in 1973 that the American Psychiatric Association took homosexuality off of its list of medical disorders and in 1974 (shortly before the first of the Vatican documents cited) that the American Psychological Association took it off of its list of mental disorders.

I've already expressed  my disappointment with the most recent document.  I agree with those who thinkg it treats homosexuals as inferior.  I'm also not convinced that the document's position that all those with deep seated homosexual tendencies are thereby completely unfit for the ministry of the priesthood, regardless of their ability to lead celibate lives and regardless of their commitment to the Church's sexual teachings, is consistent with the prior documents.

November 30, 2005 in Stabile, Susan | Permalink | TrackBack (0)

Officia, munera

Eduardo's post appeared while I was drafting my last.  I have to run, but first I'd just say in haste that, in my view, the Church's unequivocal affirmations of the equal dignity of all persons are in no way undermined by her affirmation that, by divine law, natural law, or other valid law, certain (categories of) persons have (and others do not) particular offices or functions.  The fundamental and unalterable equality of persons frees us to appreciate individuals' particular (and sometimes sacred and elevated) roles in the community.  Discrimination is the wrong issue/question, as concerns the life of the Church as we're discussing it here; the sources of officia and munera are the heart of the matter, as I see it.

November 30, 2005 in Brennan, Patrick | Permalink | TrackBack (0)