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.

Friday, September 29, 2006

For Robert Araujo and Others

Thanks so much to Robert for his post.  Robert pointed out that he and other non-subscribers to TNR are unable to access the article, so let me post it here in full.  (I hope I'm not breaking any copyright laws!)

(This seems an opportune moment to emphasize again that the fact I post something does *not* mean that I agree with it.  I post things I think will be of interest to MOJ-readers.)

What Benedict really said.

Paleologus and Us

by David Nirenberg
Post date: 09.28.06
Issue date: 10.09.06

qFaith, Reason, and the University: Memories and Reflections"--the title seems an unlikely one for a papal speech that has triggered protests, even violence, across large parts of the Muslim world. Benedict XVI's remarks, made on September 12 at the University of Regensburg, where he was once a professor, have been denounced by the parliament of Pakistan, protesters in India, Iraq's Sunni leadership, the top Shiite cleric of Lebanon, the prime minister of Malaysia, and the president of Indonesia, among many others. Less verbal critics (that is putting it much too politely) have thrown firebombs at churches in the West Bank and murdered a nun in Somalia. In Turkey, where the pope is scheduled to visit in November, the deputy leader of the governing Islamic party characterized Benedict's thinking as dark and medieval, the result of a Crusader mentality that "has not benefited from the spirit of reform in the Christian world," and predicted that "he is going down in history in the same category as leaders such as Hitler and Mussolini." 

It is the rare homily, and certainly the rare academic talk, that triggers firebombs and comparisons to Hitler. So what did the pope actually say? At the center of the storm are a few lines of his remarks, quoted from the "dialogue with a Muslim" that the Byzantine emperor Manuel II Paleologus claimed to have had in the winter of 1391-1392:

Show me just what Muhammad brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached.... God is not pleased by blood.... Faith is born of the soul, not the body. Whoever would lead someone to faith needs the ability to speak well and reason properly, without violence and threats. ... To convince a reasonable soul, one does not need a strong arm, or weapons, or any other means of threatening a person with death.

Muslim anger has concentrated on the first words of the papal citation, about Muhammad's essential inhumanity. In response to this anger, the papal palace duly announced that His Holiness's respect for Islam as a religion remains undiminished. Vatican spokesmen insisted that the offending line was incidental to the pope's broader message, and that he was not endorsing the medieval emperor's views, but simply quoting a historical text to make a historical point. In his extraordinary expression of regret on September 17, the pope himself adopted this position, declaring that "these were in fact quotations from a medieval text, which do not in any way express my personal thought." "The true meaning of my address in its totality," Benedict continued, "was and is an invitation to frank and sincere dialogue, with great mutual respect." Many in the First World will be inclined to accept the pope's clarification. Though few of them will say it openly (except perhaps Silvio Berlusconi), the violence following Benedict's comment will only confirm for them the legitimacy of his portrait of Islam. Hasyim Muzadi, the head of Indonesia's largest Muslim organization, was right to warn his coreligionists that a violent response to Benedict's words would only have the effect of vindicating them.

Still, we need to ask why, if the medieval text is so incidental to Benedict's argument and he does not endorse its meaning, he cited it at all. It was certainly not owing to the text's originality. The emperor's attack on Muhammad as a prophet of violence is among the oldest of Christian complaints (we might even say stereotypes) about Islam and its founder. Already during Islam's early conquests in the seventh century, Christians were suggesting that its spread by the sword was sufficient proof that Muhammad was a false prophet. Of course we cannot blame medieval Christians conquered by Islam for characterizing it as a violent religion, any more than we can blame medieval Muslims for later failing to appreciate the claims of Christian crusaders that their breaking of Muslim heads was an act of love. The history of the alliance of monotheism with physical force is both venerable and ecumenical. The question is, why in our troubled times did Benedict choose to bring the world's attention to the unoriginal words of this Byzantine emperor? 

One answer is that Turkey has long been on the pontiff's mind. Readers may recall then-Cardinal Ratzinger's interview with Le Figaro in 2004 in which he commented that Turkey should not be admitted to the European Union "on the grounds that it is a Muslim nation" and historically has always been contrary to Europe. Courtesy Bibliotheque NationaleLike Ratzinger, Manuel II Paleologus also worried about keeping the Turks out of Europe. As the antepenultimate emperor of Byzantium and the last effective one (he ruled from 1391 to 1425; Byzantium fell in 1453), he spent his life fighting--sometimes in the Muslim armies, but mostly against them--in the final great effort to keep Constantinople from becoming Istanbul. He traveled across Europe as far as London in a vain attempt to awaken the Latin West to the growing threat to European Christendom in the East. And he wrote letters and treatises (such as his Dialogue With a Muslim) against Islam, rehearsing for his beleaguered subjects all the arguments against the religion of their enemies. For all these reasons, history remembers the emperor Manuel as an exemplary defender of Christian Europe against Islam. In 2003, in fact, there appeared a German translation of Dialogue With a Muslim, and the book's editor states in his preface that the work is being published in order to remind today's readers of the dangers that Turkey poses to the European Union. The pope may have been making a similar point.

The emperor may serve the pope as a historical allegory, but the specific meaning of his words is useful as well. It is true that Manuel's sentence about Muhammad's inhumanity is incidental to Benedict's arguments. It was doubtless included for the simple reason that it opened the portion of the text that Benedict wanted to use. (Fortunately, he did not quote the preceding paragraphs of Manuel's treatise, which present Muhammad's teachings as plagiarisms and perversions of Jewish law.) But the medieval emperor's claim that Islam is not a rational religion--"To convince a reasonable soul, one does not need a strong arm"--lies at the heart of the pope's lecture, and of his vision of the world. That vision should be a disturbing one, not only for Muslims but for adherents of other religions as well.

In order to understand why, we need to unpack the pope's learned thesis, which will be immediately intelligible to connoisseurs of German academic theology and to almost no one else. (The pope's website promises that footnotes are forthcoming.) Simply put, the theological argument is this: Catholic Christianity is the only successful blend of "Jewish" obedience to God (faith) with Greek philosophy (reason). This marriage of faith and reason, body and spirit, is what Benedict, following a long Christian tradition, calls the "logos," the "word of God." 

The pope chose to make his point about the special greatness of his own faith through the negative example of Islam, which he claims has not achieved the necessary synthesis. Like Judaism, Islam in his view has always been too concerned with absolute submission to God's law, neglecting reason. It was to make this point that Benedict invoked his reading of Manuel II Paleologus, which he supplemented with an allusion to the claim by Ibn Hazm (systematically misspelled by the Vatican as Hazn) that an omnipotent God is not bound by reason. Like Manuel, Ibn Hazm (994-1064) is an interesting authority for Benedict to have chosen. He, too, lived through the collapse of his civilization, in his case the Muslim Caliphate of Cordoba. He, too, produced a defense of his faith against its rising foes, though his took the form not of a dialogue but of a massive history of religions, charting the eternal struggle of the godly against the evils of Judaism and Christianity. This view of history, together with his adherence to a Zahiri sect of Islam that emphasized obedience to the literal meaning of the Koran, have led some contemporary commentators to see in Ibn Hazm a precursor to modern Islamism. He thus serves the pope particularly well as an example, but he can scarcely be called representative of medieval Islam. 

The role of Islam in Benedict's argument is important, but it is worth noting that it is not the only religion the pope finds deficient in reason. Even within Christianity, the marriage of faith and reason has often been strained by attempts at what Benedict calls "de-Hellenization," or de-Greeking. Luther's move toward faith, for example, occasioned his attack on the Catholic philosophical movement known as Scholasticism. This meant that much of Protestant Christianity became unbalanced, inclining too far away from "Greek" reason and toward "Jewish" faith, while the Catholic Church strove to safeguard the proper balance. And of course there have been movements inclining too far in the opposite direction, the most important of these being the triumphant "scientific" or "practical" reason of modernity.

All these systems of thought fail to make sense of man's place in the world insofar as they fail to achieve the necessary balance between faith and reason. That balance, Benedict explains, was born in the New Testament, which "bears the imprint of the Greek spirit, which had already come to maturity as the Old Testament developed." It was disseminated and preserved over the centuries through the Catholic Church in western Europe. Indeed, for Benedict, the "inner rapprochement between Biblical faith and Greek philosophical inquiry" is really a European phenomenon: "Christianity, despite its origins and some significant developments in the East, finally took on its historically decisive character in Europe. We can also express this the other way around: this convergence ... created Europe and remains the foundation of what can rightly be called Europe." The pope concedes that not all aspects of the Christian synthesis, brokered in the particular culture of Greco-Roman Palestine and consummated in that of Catholic Europe, need to be "integrated into all cultures." But the marriage of faith and reason does, for it is now universal, fundamental to "the nature of faith itself."


In sum, the pope's essay is a declaration of the ongoing and universal truth of Catholic dogma: exactly what we should expect from the vicar of St. Peter. What we should not do, however, is confuse this declaration for an adequate description of Islam, medieval or modern. Any Islamic historian, any historian of religion, could easily object that Benedict has his history wrong. It is easy to show that Islam, too, was heavily influenced by Greek philosophy: indeed, the Catholic West would not have known much of that philosophy without the Islamic transmission of the ancient texts in Arabic translation. Aquinas learned his Aristotle from Muslim philosophers such as Averroës and Avicenna (as did Maimonides). And what kind of historian, what kind of serious intellectual, pretends to characterize a religion as vast and diverse as Islam with a single quotation from an embattled medieval Christian polemicizing against it? Insofar as the pope's job description is not that of historian but defender of the Catholic faith, such objections are to some extent beside the point. Still, we might have hoped for more from a learned leader at a time when the Western world is desperately in need of greater knowledge about Islam and its history. 

There is another problem. Benedict's plea for Hellenization draws on a German philosophical tradition--stretching from Hegel's The Spirit of Christianity through Weber's sociology of religions to the post-World War II writings of Heidegger--whose confrontations of Hebraism with Hellenism contributed to, rather than prevented, violence against non-Christians on a scale unheard of in the Muslim world. We may grant that such an intellectual dependence is hard to avoid, given the deep and abiding influence of this theological and philosophical tradition on the modern humanities and social sciences. From a Eurocentric point of view, we might even concede the pope's well-worn claim that, as Heine put it in 1841, the "harmonious fusion of the two elements," the Hebraic and the Hellenic, was "the task of all European civilization." 

What we cannot accept without contradiction or hypocrisy is the pope's presentation of the speech as an invitation to dialogue. It is true that the talk concludes with an invitation: "It is to this great logos, to this breadth of reason, that we invite our partners in the dialogue of cultures." But it also concludes with the claim that "only through [rationality of faith] do we become capable of that genuine dialogue of cultures and religions so urgently needed today." The bulk of "Faith, Reason, and the University" is explicitly dedicated to the thesis that European Catholicism has effectively mixed faith and reason in the logos, and that other religions, specifically Islam, have not. Forget for a moment the historical inaccuracies (not just about Islam, but about other religions as well) in such a statement, and focus only on the logic. What kind of invitation begins by denying its guests the qualifications for attendance at the party? The pope's "invitation" at Regensburg was not to a "dialogue of cultures" at all. What he was advocating was a kind of conversion, or at least a convergence of all religions and cultures toward a logos that is explicitly characterized as Catholic and European.

Just like Manuel's medieval "dialogos" with a Muslim (the Greek title of the emperor's treatise means "controversy" or "debate" rather than "dialogue" in our modern sense), Benedict's lecture was a polemic posing as a dialogue. Some among the faithful will rejoice that Benedict, once known as "the Rottweiler" for his dogged defense of doctrine as a cardinal, has bared his teeth as pope. But his speech must not be mistaken for something more noble or more ecumenical than the articulation of Catholic dogma that it was, even if the extreme response in certain quarters of the Muslim world casts it in a more sympathetic light. There are no champions of dialogue in this story. In the harsh universe of religious polemic, there rarely are.

David Nirenberg is a historian and professor in the Committee on Social Thought at the University of Chicago, and the author of Communities of Violence: Persecution of Minorities in the Middle Ages (Princeton University Press).

September 29, 2006 in Perry, Michael | Permalink | TrackBack (0)

A Preliminary Response to Professor Nirenberg's Remark

I would like to thank Michael Perry for his important and interesting post of Mr. Grant Gallicho’s discussion of Professor David Nirenberg’s New Republic essay on Pope Benedict XVI’s Regensburg address. Unfortunately, both the MOJ and Commonweal links to the Nirenberg essay require a subscription to the New Republic. Because of this block, I cannot comment properly on all that Professor Nirenberg has argued. However, his statement that was contained in the Gallicho and Perry postings, “What we cannot accept without contradiction or hypocrisy is the pope’s presentation of the speech as an invitation to dialogue,” has provoked me to investigate what, if anything, did the Holy Father say about dialogue with Islam prior to Regensburg? If Benedict XVI did say something, would it provide an essential context in which we can better understand the import of his remarks made on September 12, 2006?

As it turns out, the Pope on at least three prior occasions presented his appeal to the Muslim world for dialogue with the Church and the West. Moreover, his previous invitations also expressed grave concerns about the dangers faced by believers when their religious freedom is challenged or threatened. Such an atmosphere is inconsistent with true religious belief and the desire for sincere dialogue between Christians and Muslims.

For example, in his December 1, 2005 address to the Ambassador of Algeria to the Holy See the Pope Benedict stated in part:

“As I have already had the opportunity to say, the Catholic Church intends to pursue an open and sincere dialogue with believers of other religions in search of the true good of many and of society. I therefore rejoice at knowing the quality of the relations maintained in your Country between the Catholic Community and the Muslim Community. An encounter in truth between the believers of the different religions is a demanding challenge for the future peace in the world and requires great perseverance. To overcome ignorance and reciprocal prejudices, it is important to create bonds of trust between peoples, especially through the sharing of daily life and work done together, so that the free expression of differences in belief are not a cause of mutual exclusion but rather an opportunity to learn to live together with mutual respect for the identity of the other.”

On August 20, 2005 when attending the World Youth Day in Cologne, he addressed a Muslim group with these words:

“Dear friends, I am profoundly convinced that we must not yield to the negative pressures in our midst, but must affirm the values of mutual respect, solidarity and peace. The life of every human being is sacred, both for Christians and for Muslims. There is plenty of scope for us to act together in the service of fundamental moral values. The dignity of the person and the defence of the rights which that dignity confers must represent the goal of every social endeavor and of every effort to bring it to fruition. This message is conveyed to us unmistakably by the quiet but clear voice of conscience. It is a message which must be heeded and communicated to others: should it ever cease to find an echo in people’s hearts, the world would be exposed to the darkness of a new barbarism. Only through recognition of the centrality of the person can a common basis for understanding be found, one which enables us to move beyond cultural conflicts and which neutralizes the disruptive power of ideologies… Past experience teaches us that, unfortunately, relations between Christians and Muslims have not always been marked by mutual respect and understanding. How many pages of history record battles and wars that have been waged, with both sides invoking the Name of God, as if fighting and killing the enemy could be pleasing to Him. The recollection of these sad events should fill us with shame, for we know only too well what atrocities have been committed in the name of religion. The lessons of the past must help us to avoid repeating the same mistakes. We must seek paths of reconciliation and learn to live with respect for each other’s identity. The defence of religious freedom, in this sense, is a permanent imperative, and respect for minorities is a clear sign of true civilization… Teaching is the vehicle through which ideas and convictions are transmitted. Words are highly influential in the education of the mind. You, therefore, have a great responsibility for the formation of the younger generation. I learn with gratitude of the spirit in which you assume your responsibility. Christians and Muslims, we must face together the many challenges of our time. There is no room for apathy and disengagement, and even less for partiality and sectarianism. We must not yield to fear or pessimism. Rather, we must cultivate optimism and hope. Interreligious and intercultural dialogue between Christians and Muslims cannot be reduced to an optional extra. It is in fact a vital necessity, on which in large measure our future depends.”

Finally, on February 20, 2006, in his address to the Ambassador of Morocco to the Holy See, the Pope offered these words:

“[Y]ou stressed your Country’s contribution to the dialogue between civilizations, cultures and religions. For her part, in the present international context with which we are familiar, the Catholic Church remains convinced that to encourage peace and understanding between peoples, it is urgently necessary that religions and their symbols be respected and that believers not be the object of provocations that wound their outlook and religious sentiments. However, intolerance and violence as a response to offences can never be justified, for this type of response is incompatible with the sacred principles of religion; consequently, we cannot but deplore the actions of those who deliberately exploit the offence caused to religious sentiments to stir up acts of violence, especially since such action is contrary to religion. For believers, as for all people of good will, the only path that leads to peace and brotherhood is that of respect for the religious convictions and practices of others, so that the practice of the religion a person has freely chosen may be guaranteed to each one.”

It seems from his earlier statements that the Pope is devoted to authentic dialogue based on mutual respect. Moreover, he does not hesitate to state that there are forces in the world that, in the name of religion, use compulsion rather than debate to make their point and achieve their objectives. And these tactics, in his estimation, are counterproductive to genuine dialogue. This point was reiterated in his Regensburg address when he recited the passage from the Qu’ran: “There is no compulsion in religion.”

I wonder if Professor Nirenberg had read and reflected on these earlier statements of Pope Benedict? If he did, should he have made the assertion that questions the Pope’s sincerity?    RJA sj

September 29, 2006 in Araujo, Robert | Permalink | TrackBack (0)

Robert George's Response to Post on Abortion as a Moral Tragedy

Here is Robert George's thoughtful and thought-provoking reply to my post on abortion as a moral tragedy:

Thanks for your lastest posting explaining why you are presenting as a point of agreement between pro-life Democrats and Republicans the proposition that abortion is a moral tragedy.

One problem, as I see it, is that the shared belief that abortion is a tragedy, and even a moral tragedy, is a point of agreement between pro-lifers (irrespective of party) and most people (though, to be sure, not all) who regard themselves as pro-choice. I know almost no one that believes that abortion is a good thing. Most pro-choice politicians and many activists even go so far as to say that they are "personally" opposed to abortion. (I don't know a single Catholic pro-choice politician who fails to say this or something very much like it.) Such people oppose abortion, even while supporting its legality and in most cases even claiming that abortion is a woman's right, because (one must assume) they regard it as not a good thing. They wish, no doubt sincerely, that women contemplating abortion would choose a different option.

To say that abortion is a "moral tragedy," and to mean by saying it that abortion is not to be taken lightly and, indeed, that it is not a good thing (and even a morally bad one), is not necessarily to embrace the pro-life position. What makes pro-life Democrats (like Ben Nelson) pro-life, and distinguishes them from their self-identified pro-choice colleagues (like Teddy Kennedy), is that they say more than that. A central feature of what they perceive as bad about abortion--a feature with direct implications for the question of whether abortion may legitimately be permitted by a political society--is that abortion is a grave injustice against a vulnerable member of the human community. So, they believe, not only is it the case that there is no right to abortion; the child in the womb has a right to be protected by public authority against deliberate acts of violence.

In my own experience with pro-life Democrats (for many years I was one of the breed myself), they don't disagree with pro-life Republicans about the injustice of abortion or the right of the unborn child to legal protection against direct killing or other forms of unjust homicide. So the fundamental point of agreement is much richer than what is captured by the idea that abortion is a moral tragedy.

Perhaps it will illuminate things to consider how (1) pro-choicers (of either party), (2) pro-life Republicans, and (3) pro-life Democrats would respond to the following question: Is the embryonic or fetal offspring of human parents a human being possessing inherent dignity and a corresponding human right to the equal protection of the laws? Pro-choicers would say "no." (Some would say--absurdly--that the human embryo or fetus is not yet alive; others would say--almost equally absurdly--that the embryo or fetus, though a living being, is not yet human; still others would say--incorrectly, in my view, though not absurdly--that the embryo or fetus, though a living human being--i.e. an individual member of the species Homo sapiens--is not yet a "person" bearing a right to life. A few would say, with the philosopher Judith Thomson, that the fetus is, or may well be, a person with a right to life, but may legitimately be evicted by a pregnant woman from her body as a sort of uninvited guest, even if fetal death is a certain consequence.) Pro-life Republicans would give the opposite answer: they would say "yes." How would pro-life Democrats come down? Would they answer "no" or "yes"? (Note that the question--the central question dividing those of us who are pro-life from those who are pro-choice--logically does not admit of a third possible answer; if the answer is anything other than "yes," it must be "no.") My guess is that most pro-life Democrats would say "yes." I would be surprised if there are many self-identified pro-life Democrats who would answer the question by denying that the child in the womb is anything less than a human being with equal fundamental human rights.

I think that many, if not most, pro-life Democrats would agree with pro-life Democrat (and Notre Dame dean) Mark Roche, who argued (in an article written, ironically, to encourage Catholics to support pro-choice Democratic presidential nominee John Kerry) that "history will judge our society's support of abortion in much the same way we view earlier generations' support of torture and slavery - it will be universally condemned." We condemn earlier generations' support for slavery not (merely) as a moral tragedy, but as a grave injustice of extraordinary magnitude. In the days of slavery, however, there were people who were personally opposed to slaveholding, and who would not themselves own slaves, who nevertheless supported "the peculiar institution" as a "necessary evil" or a "tragic necessity." (Indeed, there were even some slaveholders--such as Jefferson--who viewed slavery as a moral tragedy.) Of course, those who held this position could not be counted as abolitionists or supporters of racial equality. (Some, I'm sure, hoped for the day when social conditions and economic developments would cause slavery's extinction. Among these, perhaps, were people who favored economic reforms and other public policies aimed at eliminating the cause of slavery without using the corecive force of the law to ban it.) At the same time, among those of whatever party who fully believed in racial equality and who viewed slavery as a profound injustice that no decent polity could permit, it would not capture their fundamental point of agreement to say that they shared the view that slavery was a "moral tragedy." As in the case of pro-life Democrats and pro-life Republicans today, their fundamental agreement was, I believe, richer than what is captured in that phrase.

September 29, 2006 in Uelmen, Amy | Permalink | TrackBack (0)

Thursday, September 28, 2006

Academic Blogging

(O.K., maybe the relevance of this to CLT is a bit of a stretch.  But it is:  1.  about blogging;  2.  about academics who blog;  3.  about the effect of controversial blogging on tenure & appointments;  4.  about conservative v. liberal bloggers; and  5. about controversy generated by positions on contemporary Middle Eastern politics, so arguably relevant to Pope Benedict's Regensburg remarks.)

There's an interesting editorial in the Sep/Oct issue of the Yale Alumni Magazine about Yale's decision not to hire Juan Cole, a professor of Modern Middle Eastern history.  It raises the issue of the effect of blogging on academic tenure and appointments decisions. 

Do those who live by the blog die by the blog?

In April, Juan Cole, a professor of modern Middle Eastern and South Asian history at the University of Michigan--Ann Arbor, whas turned down for an appointment at Yale in contemporary Middle Eastern politics.  This kind of event doesn't ordinarily stir up excitement in the wider world.  But it became a hot topic in the blogosphere, because Cole himself is an eminent blogger.  "Everyone who is anyone reads his blog,"  writes NYU professor Siva Vaidhyanathan in the Chronicle of Higher Education.  Apparently, everyone who reads Cole's blog thought Yale rejected him because of it.

Cole has an impressive c.v.  He has written, edited, or translated 14 scholarly books, many of them for prestigious academic presses.  But on his blog, Informed Comment, he is an unrelenting critic of the war in Iraq and the Bush administration, and several conservative bloggers were outraged that Yale would consider him for tenure.  The blog Little Green Footballs called Yale's interest "almost unbelievable."  John Fund of WallStreetJournal.com called Cole "hothead" and "intolerant."

The faculty of two departments voted to hire Cole.  But at Yale, senior tenure decisions must pass three levels of committees.  Cole failed the second level:  the Tenure Appointments Committee in the Humanities, composed of two deans and nine tenured faculty, voted him down.  Now it was the liberal bloggers' turn for outrage.  "Neoconservative zealots . . . screwed professor Juan Cole out of a job"  (Majikthise).  "This reaction reeks of fear"  (Whiskey Bar).

There's no way of knowing if those who reviewed Cole were influenced by their political views.  Politics are strictly dissallowed as critera for hiring at Yale.  But academics are human.  It would be surprising if nobody on those committees was influenced, consciously or unconsciously, by feelings about Cole's outspoken stands.  It would be surprising if nobody at all wondered about the consequences of hiring a controversial public figure.

. . .

The Cole affair may help push academia to define how it feels about blogs.  Cole's blog is opinionated but erudite;  he translates Arabic and Persian sources and comments on theology.  But academics haven't reached consensus yet on how to weight blog posts in evaluating scholarship. (It's not clear how, or whether, Yales' committees assessed Cole's blog.)  As more and more academics engage in blogging, universities will have to decide whether blogging matters.

UPDATE:  My colleague, Elizabeth Brown, adds:  "You may be interested in a posting by J.B. Ruhl, the Matthews & Hawkins Professor of Property at the Florida State University College of Law, on his thoughts regarding the “Hierarchy of Legal Scholarship” here:  http://jurisdynamics.blogspot.com/2006/09/hierarchy-of-legal-scholarship.html   Basically Ruhl, like Brian Leiter (who Rick Garnett commented upon in his MoJ post here: http://www.mirrorofjustice.com/mirrorofjustice/2006/09/leiter_on_blogs.html ), thinks that blogs (while lots of fun) have zero value as scholarship. 

Ruhl thinks the most valuable contributions to legal scholarship are empirical studies of law’s impact on society.  Ruhl’s rankings have generated a lot of comments among other law bloggers."


September 28, 2006 in Schiltz, Elizabeth | Permalink | TrackBack (0)

Response on Point One: Abortion as a Moral Tragedy

I’d like to continue (one point at a time) the conversation with Robert George on possible points of agreement between pro-life democrats and pro-life republicans. On my first point, he writes: "Regarding point one, I do not think it captures the key point of agreement to describe abortion as a ‘moral tragedy for all the people directly involved and for society as a whole.’"

I’d like to explain why I emphasize as a separate point of agreement that both see abortion as a moral tragedy for this reason: it is exactly on this point that there’s a tendency to talk past each other. At times the democrats’ struggle over the question of whether abortion should or should not be legal is characterized as an indication that they take the problem lightly, or that they see abortion itself as a good thing for society. I will not hesitate to admit that in some cases that may be true. But I would like to see if we can reach agreement on this point: when pro-life democrats focus intensely on the prudential dimensions of practical political solutions, including the limits of legal regulation, that doesn’t necessarily mean that they don’t believe that abortion is a moral tragedy. Can we agree that pro-life democrats and pro-life republicans are on the same page in seeing abortion as a moral tragedy even if they may disagree about the prudential and political dimensions of the role and limits of legal regulation?

September 28, 2006 in Uelmen, Amy | Permalink | TrackBack (0)

More on Benedict on Islam

[This item of interest from dotCommonweal:]

Dialogue or monologue?

September 28, 2006, 12:17 pm
University of Chicago historian David Nirenberg dissects the pope's Regensburg lecture at the New Republic. A sample:

Benedict's plea for Hellenization draws on a German philosophical tradition--stretching from Hegel's The Spirit of Christianity through Weber's sociology of religions to the post-World War II writings of Heidegger--whose confrontations of Hebraism with Hellenism contributed to, rather than prevented, violence against non-Christians on a scale unheard of in the Muslim world. We may grant that such an intellectual dependence is hard to avoid, given the deep and abiding influence of this theological and philosophical tradition on the modern humanities and social sciences. From a Eurocentric point of view, we might even concede the pope's well-worn claim that, as Heine put it in 1841, the "harmonious fusion of the two elements," the Hebraic and the Hellenic, was "the task of all European civilization." 

What we cannot accept without contradiction or hypocrisy is the pope's presentation of the speech as an invitation to dialogue.

For the rest of his analysis, click here.

September 28, 2006 in Perry, Michael | Permalink | TrackBack (0)

Skeel on Christian Legal Scholarship

Penn law prof David Skeel has posted a new paper, The Unbearable Lightness of Christian Legal Scholarship.  Here is the abstract:

When the ascendency of a new movement leaves a visible a mark on American law, its footprints ordinarily can be traced through the pages of America's law reviews. But the influence of evangelicals and other theologically conservative Christians has been quite different. Surveying the law review literature in 1976, the year Newsweek proclaimed as the "year of the evangelical," one would not find a single scholarly legal article outlining a Christian perspective on law or any particular legal issue. Even in the 1980s and 1990s, the literature remained remarkably thin. By the 1990s, distinctively Christian scholarship had finally begun to emerge in a few areas. But even today, the scope of Christian legal scholarship is shockingly narrow for such a nationally influential movement.

This Essay argues that the strange trajectory of Christian legal scholarship can only be understood against the backdrop of the fraught relationship between religion and American higher education starting in the late nineteenth century. As the nation's modern research universities emerged in the 1860s and 1870s, leading reformers began to promote nonsectarian, scientific approaches to education. Within a few decades, these trends hardened into a hostility to religion that has not disappeared even today. But the disdain did not run in one directions only. For much of the twentieth century, American evangelicals absented themselves from American public life. The few theologically conservative Christians who remained in legal academia operated under cover, a stance reflected in the absence of Christian legal scholarship except on church-state issues and in a handful of other areas.

The first half of the Essay is devoted to this historical exegesis and to a survey of current Christian legal scholarship. The essay then shifts from a critical to a more constructive mode, from telling to showing, as I attempt to illustrate what a normative, and then a descriptive, Christian legal scholarship might look like. Normatively, I outline a Christian theory of criminal and civil liability that implies a far more limited role for the secular law than the standard "law as morality" perspective suggests. My descriptive theory begins with a puzzle; call it the Bono puzzle. In both England and the U.S., the recent debt relief campaign and related movements have deep Christian roots, but the Christian influence has manifested itself very differently on the two sides of the Atlantic. I argue that the relative lack of theologically conservative Christian enthusiasm for debt relief in the U.S. stems from evangelicals' historical distrust of activism on social issues, which dates back to the evangelical confrontation with modernity in the late nineteenth century. Only through the work of high profile norm entrepreneurs like Bono has it been possible to overcome the presumption against intervention. Although the apparent shift in the norm against intervention on social issues has focused on debt and poverty in Africa, the shift could have dramatic feedback effects on U.S. politics.


September 28, 2006 in Vischer, Rob | Permalink | TrackBack (0)

Robert George's Response to Points of Agreement

Robert George offers the following response to my earlier post:

I'm writing in reply to your Mirror of Justice posting on points of agreement between pro-life Democrats and what you characterize as "the republican party line." I agree that identifying points of agreement between pro-lifers in the two parties would be helpful and constructive. Thanks for initiating the discussion.

May I raise a question or two and make some proposals for revising the three possible points of agreement you suggested?

Regarding point one, I do not think it captures the key point of agreement to describe abortion as a "moral tragedy for all the people directly involved and for society as a whole." The problem is that this leaves out of the description the grave injustice of directly killing an unborn child, as well as the sin against fundamental equality involved in denying to embryonic and fetal members of the human family elementary legal protections afforded to everyone else. Many self-identified "pro-choice" people regard abortion as a tragedy-even a "moral" tragedy. Their difference with "pro-life" people is that they do not regard the deliberate taking of fetal life, or the failure to protect the developing child against the abortionist's lethal assault, as an injustice-a violation of the child's right to life. Therefore, I think a proper formulation of this point of agreement between pro-life democrats and republicans would focus on the thing that defines them as pro-life (and distinguishes them from those who are not), namely, the belief that deliberate feticide and its legal permission are profoundly unjust.

On point two, much depends on what you mean by "principal" in the claim that most pro-life people agree that the criminal law is "too blunt" to be the "principal" instrument for the regulation of abortion. Is the suggestion that most pro-lifers oppose criminal prohibitions of abortion? If so, I'm sure this is incorrect. My Princeton colleague Russell Nieli has carefully studied polling on abortion going back to Roe v. Wade. Of course, the results of individual polls come out differently depending on how the survey questions are framed, but he reported in a lecture here that a stable consensus exists in the United States that most abortions should be illegal. I don't recall the exact estimates he reported, but it was something along the lines of 55-60% of Americans believe that 80-90% of abortions that actually occur ought to be prohibited by law. Of course, the percentages would be still higher if the samples were restricted to self-identified pro-life citizens, rather than to the adult population as a whole. (Majorities exist for legal abortion in the "hard cases," but these account for only a fraction of the abortions in the United States.. It also seems to be the case that many Americans have an exaggerated impression of the frequency of medical indications for abortion. They think that abortion is medically "necessary" far more often than it is.)

On point three, I agree that most pro-lifers think that legally prohibiting abortion is only part of what needs to be done. Sound policies would not merely declare abortions to be illegal; they would effectively deter illegal ("underground") abortions. Such policies would rely on vigorous law enforcement against illegal abortionists and at the same time seek to depress the demand for their services by providing support and alternatives for expecting mothers whose circumstances might drive them to contemplate abortion as a solution to problems that pregnancy presents for them. Pro-life Democrats emphasize the need to bring care and compassion to mother and child alike, and this is a point on which Republicans (including the vast number who, like myself, are former Democrats who shifted their allegiance primarily because of the Democratic Party's decision to embrace the cause of legal abortion) can enthusaistically agree.

September 28, 2006 in Uelmen, Amy | Permalink | TrackBack (0)

International Religious Freedom report

The U.S. Dep't of State's International Religious Freedom report for 2006 is available here.

September 28, 2006 in Garnett, Rick | Permalink | TrackBack (0)

Urban Tragedy

Michael J. Petrilli writes, on National Review Online, about the tragedy of urban Catholic schools closing.  As he suggests, it is not these urban schools that need closing.

The closures have little to do with the quality of education that these schools provide. Two decades of studies have shown them to be effective, especially for poor and minority children. Rather, broader demographic trends are to blame. Simply put, most Catholics have left the urban core for homes in the leafy suburbs, and urban parishes have dried up in their wake. No parishes, no parish subsidies, no parish schools — yet thousands of needy children remain downtown. On top of that, the schools’ pipeline of affordable teachers has run dry. Once upon a time, most Catholic-school instructors were members of religious orders, requiring little or no cash compensation; now there are more nuns over age 90 than under age 50 in the U.S., and only five percent of the schools’ teachers come from religious orders. Lay teachers must be paid a decent wage, pushing Catholic-school tuitions out of reach for many poor families.

Meanwhile, in some of the same poor neighborhoods where effective Catholic schools are getting the axe, failing public schools remain open, seemingly resistant to reform.

Wasn’t the “accountability movement” supposed to change that?

In a similar vein, I wrote, in this USA Today op-ed:

We might well sympathize with those for whom the closing of a parish is painful because of family memories or ethnic traditions, or those who must now find a new school. And maybe we regret the loss of a few older, attractive buildings. In the end, though, why shouldn't the reaction of outsiders simply be, "Oh well, that's life"?

Why should we care?

For starters, urban Catholic schools and their teachers do heroic work in providing education, hope, safety, opportunity and values to vulnerable and marginalized children of all religions, ethnicities and backgrounds. Similarly, Catholic hospitals have long cared for underserved and disadvantaged people in both urban and rural areas, and helped to fill glaring gaps in the availability of health care. It is too easy to take for granted these and similar contributions to the common good. We should remember that, as these institutions fold, the burdens on and challenges to public ones will increase.

We might also care about the closings for slightly more abstract but no less important reasons. In a nutshell: It is important to a free society that non-government institutions thrive. Such institutions enrich and diversify what we call "civil society." They are like bridges and buffers that mediate between the individual and the state. They are the necessary infrastructure for communities and relationships in which loyalties and values are formed and passed on and where persons develop and flourish.

Catholics and non-Catholics alike can appreciate the crucial role that these increasingly vulnerable "mediating associations" play in the lives of our cities. Harvard University Professor Robert Putnam and others have emphasized the importance of "social capital," both to the health of political communities and to the development of engaged citizens. In America's cities, it has long been true that neighborhood churches and schools have provided and nurtured this social capital by serving as places where connections and bonds of trust are formed and strengthened. As Joel Kotkin writes in his recent book, The City: A Global History, healthy cities are and must be "sacred, safe and busy." If he is right, Catholic parishes, schools and hospitals help make America's cities great.

September 28, 2006 in Garnett, Rick | Permalink | TrackBack (0)