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, December 29, 2005

Is Remorse Overrated?

Emory's Martha Duncan has posted her new article, "So Young and So Untender": Remorseless Children and the Expectations of Law.  (HT: Solum)  I'm not sure what to make of the thesis, but it sounds intriguing:

This article employs psychology, sociology, and literature to investigate the expectation of remorse in the juvenile and criminal justice systems. More specifically, it presents seven in-depth case studies of juveniles who were charged with murder or attempted murder and whose apparent lack of remorse played a salient role in the legal process. Through these case studies, the article challenges the law’s assumption that any decent, redeemable person, regardless of age, will exhibit sorrow and contrition after committing a heinous crime.

Beyond challenging the courts’ ability to interpret the emotional state of a juvenile, the article questions the validity of remorse as a predictor of future character. Drawing on Biblical and literary examples and the psychoanalytic theory of the superego, the article suggests that remorse, as the most agonizing form of guilt, may actually undermine the ability to “turn one’s life around” and begin anew.


December 29, 2005 in Vischer, Rob | Permalink | TrackBack (0)

Wednesday, December 28, 2005

Non-AALS DC Conference

Every year the Law Professors' Christian Fellowship sponsors a conference during the AALS annual meeting. Last year's confab in San Francisco was on the topic of "Taking Christian Legal Thought Seriously."  This year's will be held in DC on Saturday January 7 from 1130am to 600pm at the Washington Hilton at 1919 Connecticut Ave, and will be co sponsored once again by the Lumen Christi Institute. I assume you can register at the door for the $35 fee, which covers lunch. The first panel, which begins at 100pm, is entitled "The Faithful Judge: How Can a Judge Be Faithful to Both Christ and the Law?". The speakers are John Garvey (BC), Ken Starr (Pepperdine) and Steffen Johnson (US Office of Legal Counsel), and the moderator is yours truly. The second panel is at 315pm on the topic of "A Christian and Legal Response to Katrina: Race, Environment and the Role of Government." The speakers are John Nagle (ND), Vince Rougeau (ND), Rob Vischer (St.T), and the moderator is Amy Barrett (ND).  I hasten to point out that three of the speakers/mods are present or past MOJ-ers. Kudos to John Breen (another MOJ vet), Bob Cochran and John Nagle for putting together this interesting program. This program is open to all (with $35!), regardless of whether you are attending the AALS.


December 28, 2005 | Permalink | TrackBack (0)

Australasia Bishops back celibate gay priests

Thought that this small item from The Tablet (12/10/05) would be of interest to MOJ-readers.

Australasia Bishops back celibate gay priests.

AUSTRALIA’S CATHOLIC bishops have welcomed the Vatican’s instruction on homosexual men seeking ordination, while endorsing those priests who are homosexual and faithful to their vows of celibacy.

In a brief but carefully worded statement issued after their recent plenary meeting in Sydney, the bishops said that while the document – officially released last Tuesday but leaked to The Tablet the previous week – repeated matters previously addressed by the Vatican, “we welcome the clarification that the Church does not see as fit candidates for priestly ordination men who are homosexually active, those who have deep-seated homosexual tendencies and those who support gay culture.”

However, the bishops noted that the document did not call into question “the validity of the ordination and the situation of priests in whom homosexual tendencies emerged either before or after ordination. It makes clear that all priests are called to live a life of chastity.”

The president of the bishops’ conference, Archbishop Francis Carroll of Canberra and Goulburn, told The Tablet that the bishops wanted to reassure priests in the light of the Vatican’s instruction. “We had a pastoral concern for priests already ordained who may acknowledge that they are homosexual and certainly did not want them to feel in any way threatened,” he said. He added that he did not believe any priests would have felt any threat to their continuance as priests if they were doing their best to live celibate lives.

“Some of the earlier speculation would have had us believe that it would have been a severer document than it has turned out to be,” he said, adding that the document outlined what was already in place in Australian seminaries.

Michael Kelly, a gay Catholic writer and activist, wrote in Melbourne’s The Age newspaper on 29 November that the instruction was just the latest stage in the Vatican’s campaign to halt the progress of civil and spiritual liberation for gay people. “This campaign has revealed an ugly side of the Church, a side that rejects modern science and psychology, forbids dialogue, and uses power as a blunt instrument of control,” he said.

A poll earlier this year found that three-quarters of Australia’s Catholics do not believe homosexuality is immoral.

Mark Brolly, Melbourne

December 28, 2005 | Permalink | TrackBack (0)

Eavesdropping and "omniscience"

I like The Revealer, but Jeff Sharlet's claim (linked to here by Rob) that the recent reporting (not "revelations"; there is, I think, a bit of a "shocked, shocked!" quality to many of the critics' reactions) about the Administration's electronic eavesdropping on conversations thought to involve persons connected with an international terrorist organization (is this "domestic spying"?) reveals a widespread "acceptance of omniscience as a legitimate aim of government" is a bit of a stretch.  It does not reflect a misplaced or idolatrous desire for "omniscience" for an electrician to want to know everything he possibly can about the ancient and possibly dangerous wiring in my house before he works on it.  And -- putting aside, for the moment, the policy, legal, and military merits of the Administration's eavesdropping -- it does not seem to reflect a misplaced hunger for omniscience for government to want information that, it is reasonably argued, is essential to carrying out a task that everyone believes is at the heart of its obligation to the common good.

For two good posts on the legal and constitutional issues, read Orin Kerr and Cass Sunstein.

December 28, 2005 | Permalink | TrackBack (0)

Tuesday, December 27, 2005

The Theology of Domestic Spying

The Revealer's Jeff Sharlet writes:

The ongoing revelations of the Bush administration's domestic spying don't make for a religion story, but the disclosures do echo theological concerns. At issue is omniscience, the government's power to know whatever it wants about whomever it wants. Bush expanded that power and defends doing so. So far, so political. The theology comes in the mainstream liberal response.

At first glance, it seems to be outrage. But look again. Here's Newsweek's Jonathan Alter on "Hardball": "The critics of the president in this case are not trying to weaken national security. It's not that we're eavesdropping, it's how we're eavesdropping..."

Imbedded in this statement is the acceptance of omniscience as a legitimate aim of government. The only remaining argument is over the social contract that shapes the government's acquisition of information. But since we're talking about potential omniscience here, a better term than social contract might be "covenant." Biblical language is necessary to describe potentially biblical power. And since Bush's critics have been so cowed by the need to fight "the enemy" -- an abstract figure, rarely named -- that they accept the implicit premises of the covenant of omniscience, if not the precise terms, isn't Bush correct to respond out of the whirlwind? "Where were you when I defended the nation?"

That's the theological trap mainstream liberals have walked into. The only way out is to re-think the theology; or better yet, to scrap it all together and accept a government that isn't all-knowing.


December 27, 2005 in Vischer, Rob | Permalink | TrackBack (0)

Mashed or Latkes?

The wonderful religion-in-media blog Get Religion has an interesting post exploring our culture's tendency to embrace inclusiveness to the point of absurdity, exemplified by the press coverage of the first night of Hanukkah falling on Christmas for the first time since 1959.


December 27, 2005 in Vischer, Rob | Permalink | TrackBack (0)

Cultural Strata and Christian America

Guest-blogging for Andrew Sullivan, Ross Douthat laments the cultural status of religious America:

America has a lowbrow culture that's still pretty religious, but whose religiosity tends to be, well, lowbrow - a lowest-common-denominator mix of self-help spirituality and New Age mush. And the highbrow culture, meanwhile, isn't religious at all: it's not anti-religion, exactly, but it definitely considers religious belief an oddity and an anachronism, and orthodox Christian belief dangerously close to fanaticism. Which is one of the reasons that most religiosity in America is so lowbrow - because the highly intelligent people who might elevate the level of religious discourse have their faith leeched out of them by their immersion in the highbrow, in its assumptions and its prejudices. And the people who complain about this - about how we don't have any more Reinhold Niebuhrs, and isn't it a tragedy? - tend to be exactly the people who in an earlier era would have been the Niebuhrs, but who now partake of what Richard John Neuhaus once called "the pleasures of regretful unbelief."

What we need, then - and by "we" I mean Christians, though I obviously think there would be benefits to non-Christians as well - is a more highbrow Christianity, and one that doesn't prostrate itself on the altar of political correctness, as token highbrow Catholics like Garry Wills are wont to do. Perhaps "culture war" is the wrong word to use in this context, since we don't necessarily need more Christians making the case against same-sex marriage, or pushing all their chips into the battle over courthouse displays in Alabama. We need more Christians writing good novels and essays and doctoral theses, and television shows and movies and music - all of which might inter alia make the case for a Christian understanding of, say, sexuality, but which would be primarily works of art and intellect and not polemics, creating a cultural space rather than just a political movement.

We can't expect any favors: The doors of highbrow American culture have been closed against that sort of thing for decades now, and you can't expect the New Yorker or the New York Times to just throw them open - why should they? They're content with the world they've made, in which Philip Pullman is a hero, C.S. Lewis is a sad "prisoner" of his religious belief, science is always under assault from fundamentalism and monotheism is an easy whipping boy for all of history's ills. Christians keep insisting that this world has it all wrong, of course, but it's not enough to say it - we need to show them.

Richard John Neuhaus responds:

Douthat is right, of course, but there is more to be said on this. (When isn’t there?) Lowbrow, anti-intellectual, and downright vulgar Christianity in the public square is an embarrassment. But, in defending the constitutional rights of religion in public, one has no choice but to defend what shows up to be defended. In coming to the aid of those suffering from anti-religious discrimination, I have often wished for a better quality of victim. You don’t always get to choose your battles, or your allies.

I confess to having little patience with Christians of fastidious taste who don’t want to be associated with “them.” So much do they want to distinguish themselves from “them” that they usually end up on the other side. The deeper cultural, historical, and theological reality is that “they” are us. Not all their causes are ours. But their cause (if not always their way) of witnessing to the lordship of Christ in the face of a sub-pagan highbrow culture is ours.


December 27, 2005 in Vischer, Rob | Permalink | TrackBack (0)

Monday, December 26, 2005

Becker-Posner on Capital Punishment and Deterrence, Con't

For those of you interested in the discussion about whether capital punishment deters murder (here and here),  Becker-Posner continue to opine ... though it seems to me from reading their interesting Christmas Day posting (here) that they still have not read the Donohue-Wolfers paper (here).  Well, once the paper is published (as soon it will be) in the Stanford Law Review, few lawyer-economists will not have read it.

Just to be clear:  The Donohue-Wolfers paper doesn't argue that capital punishment does not deter; rather, it argues that econometricians cannot say, based on the data that is available or is likely to become available, that capital punishment reduces the incidence of murder ... or that it increases the incidence of murder ("the brutalization effect").  According to Donohue-Wolfers, econometricians *can* say that whether capital punishment reduces the incidence of murder or, instead, increases it, the effect is very small.

December 26, 2005 in Perry, Michael | Permalink | TrackBack (0)

Kitzmiller on the Content of Religious Belief

I appreciate the posts by Rick and Amy about the Kitzmiller intelligent design ruling, and I simply want to underscore how remarkable I found Judge Jones' statement that:

Both Defendants and many of the leading proponents of ID make a bedrock assumption which is utterly false. Their presupposition is that evolutionary theory is antithetical to a belief in the existence of a supreme being and to religion in general.

I know many folks for whom evolutionary theory is antithetical to their religious beliefs.  At a minimum, evolutionary theory requires a certain substantive interpretation of divine revelation.  This does not mean that the case should have come out differently, but it does make me wary of an effort to erase by judicial fiat a tension that is very real.  Imagine if the Court in Dale v. Boy Scouts had written, "The Boy Scouts falsely assume that allowing openly homosexual leaders is antithetical to their objective of developing morally straight young men."  Now I agree that such a statement is accurate, but it strikes me as a contested extralegal normative claim that is no business of the judiciary to be making.  To probe this area more deeply, be sure to read Rick's thoughtful article, Assimilation, Tolerance, and the State's Interest in the Development of Religious Doctrine


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

Sunday, December 25, 2005

God so loved the world

When all the gifts have been opened and the holiday feast consumed, when all the relatives and friends have gone home and the day has come to an end, this startling reality remains:

God so loves us that not only were we created in God's image, but God became human, like us in all things save sin.   The theologian Michael Himes once observed that "the great mystery hidden from all generations and revealed in the Incarnation is God's secret ambition.  From all eternity God has wanted to be exactly like you and me.  This is the ultimate statement of the goodness of being human, the rightness of humanity.  The immense dignity of the human person is at the heart of the Christian tradition because it flows directly from the doctrine of the Incarnation itself.  Indeed, the Incarnation is the highest compliment ever paid to being human."

Blessings to all on this Christmas night.

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