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, November 30, 2006

Reinforcements for Manne

Mike Perry's colleague Bill Carney thought my critique of Henry Manne's position on Corporate Social Repsonsibility (CSR) was all wet. Here is his comment:

Sargent's quarrel with Manne's claim that CSR is pushed by enemies of

private enterprise is, apparently, that it's an attack on the messenger. He

has to ignore the public choice side of this phenomenon, which is often an

attempt by interest groups to capture benefits from corporations. I give

you organized labor's attack on Wal-Mart, which is only designed to raise

wages (the "living wage" campaign) and fringe benefit costs for Wal-Mart, to

make it easier for employers with higher cost union contracts to compete,

and raises the cost of goods for the poor (and everyone else). Others do

much the same thing. When Pacific Lumber was acquired by outsiders who were

expected to increase the harvest rate on old growth redwoods,

environmentalists attacked. Ultimately they achieved their goal not by

dissuading the new owners from cutting trees, but by getting the government

to buy the land from the new owners, who apparently didn't want to maintain

a scenic wilderness at private expense. It is, I think, in this sense that

Manne uses the word "socialist" -- to express the idea that forcing CSR on

corporations gives the "public" (more likely some interest group) a claim of

some kind of right to the corporation's property. I'm not sure we've

developed a term other than socialist to describe this.

The main attack on Manne's argument is that it's simplistic. Sargent then

goes on to concede that most CSR is done for profit-making motives, which

Manne has stated, I think. I'm not familiar with Catholic Social Thought on

the subject of the corporation, but to the extent that it goes beyond law

obedience and profit-maximizing, I'm on Manne's side. Any attempt to make

the corporation (read corporate management) accountable for something in

addition to profits dilutes the accountability of management, increases its

discretion, lowers profits, and increases the cost of capital for new and

existing enterprises. I wrote about this in the 1990 Cincinnati Law Review,

and I won't repeat the elaboration of those arguments here.

[Mark here] As you might expect, I'm not persuaded by this response. First, Carney does not address my criticism of Manne's tendentious assumption that anyone who buys into CSR despises capitalism and entrepreneurship in particular. Second, Carney points out that CSR arguments may be used by unions or other "interest groups" to capture benefits from corporations. Public choice analysis cuts both ways, however, as evidenced by the nonshareholder constituency statutes extracted from state legislatures by powerful local corporations to protect themselves from hostile takeovers. In other words, CSR can be used hypocritically by both sides. That does not mean, however, that the concept is nonsense; there is such a thing as the common good. Catholic social thought, of course, regards the ownership of private property as constrained by social obligations to an extent that Manne and Carney obviously would not accept. Third, my "concession" that much CSR activity represents an indirect way of maximizing profits does not mean that I buy into Manne's overall argument: a recognition that CSR is "good for business" opens up the possibility of dialogue between the private good and the common good that hardly seems to be countenanced by the Friedman/Manne hard line position. Third, Carney does not address my argument about how the minimalist law compliance approach actually may breed cynicism about law compliance and actually exacerbate illegal or antisocial behavior, and that this may be countered by a more positive approach to CSR. Finally, the Friedman/Manne/Carney view may not even be an accurate way of describing the way people running large corporations actually think about what they should be doing. Note the following observations in a new piece by Peter Haslam of Cambridge University:

doing business with purpose

With the death last week of the Nobel laureate Milton Friedman, business lost one of its brightest and most influential gurus. His saying ‘There’s no such thing as a free lunch’ has become part of popular English usage, but in business circles his name is associated with another dictum: ‘The social responsibility of business is to maximise profits.’

This idea, which has been dubbed ‘shareholder value’, has helped to provoke a vigorous reaction in the form of the ‘corporate social responsibility’ movement, which insists that business has responsibilities not only to shareholders but to stakeholders: customers, employees, suppliers, society at large and the environment.

Despite the obvious appeal of this argument, there are several reasons why Friedman’s point should not be too easily dismissed. After all, any good that business can do is dependent on it making a profit, and shareholder value obliges managers to put the interests of shareholders first rather than their own. Moreover, shareholder value is not so much the invention of business gurus as the product of our demands for the best return on our investments.

Nonetheless, there is a serious problem with shareholder value, though it’s not one we might expect: it conflicts with the way most business people think. According to recent research, the great majority of CEOs believe that corporations should balance their obligations to shareholders with those to wider society. Only one in six, in fact, agrees with Friedman on this score. None of the most admired companies regards shareholder value as its main purpose; and, paradoxically, companies that do focus on shareholder value perform less well than those whose first priority is to serve their customers.

What motivates most business people, evidently, is the sense that they’re providing something that people want or need. And will want or need again. And again. Business, it seems, is less about serving a remote share index than about creating and sustaining long-term relationships with people. Perhaps this reflects the nature of our universe: ultimately, true purpose and meaning are found not in the quantity of material returns but in the quality of relationships.

Business shoots itself in both feet, therefore, if it makes maximising profit its chief objective. Not only does it damage its reputation by convincing the public that it’s up to no good, it also reduces its shareholder value – two outcomes that Friedman would have been keen to avoid.

[Mark Again] I think these are very challenging arguments that "complexify" the question in a way that makes the lapidary Friedman/Manne position ultimately reductionist.


November 30, 2006 | Permalink | TrackBack (0)

From Peter Nixon at dotCommonweal

Sign of the Times?

The Washington Post reports that for the second time in one year, the Christian Coalition has named a new a leader and then removed him before he took office:

The Rev. Joel Hunter, pastor of a nondenominational megachurch in Longwood, Fla., said he resigned as the coalition's incoming president because its board of directors disagreed with his plan to broaden the organization's agenda. In addition to opposing abortion and same-sex marriage, Hunter, 58, wanted to take on such issues as poverty, global warming and HIV/AIDS.

"My position is, unless we are caring as much for the vulnerable outside the womb as inside the womb, we're not carrying out the full message of Jesus," he said in a telephone interview yesterday. "They began to think this might threaten their base or evaporate some of their support, and they said they just couldn't go there."

by J. Peter Nixon

November 30, 2006 in Perry, Michael | Permalink | TrackBack (0)

A bit more on "The Bishops and Human Sexuality"

I would like to thank Michael P. for drawing attention to the November 24th lead editorial from the National Catholic Reporter. It appears that the authors of the editorial disagree with the bishops on several major issues, and they, the editorial authors, need more clarity.

However, the editorial also raises its own important questions that call for more clarity on the part of its authors.

For example, the editorial’s suggestion that various bishops’ statements “tend[] to reduce all of human love to the act of breeding.” I am not so sure that this is an accurate characterization of what the bishops have stated. The bishops, and others, have discussed many aspects of human love that do not imply acts of breeding. Moreover, like many other people, I love to read books; I love to listen to Mozart, Bach, and Beethoven; I love my family. But these acts of human love are not acts of breeding. Perhaps the editors could have been more precise, more clear, in the point they were trying to make.

But there are other elements of this editorial that also require more precision and greater clarity, and these get to the heart of what is likely the motivation for the editorial. When all is said and done, the authors of this editorial disagree with the teachings of the Church as taught by the bishops. Several times within their editorial, the authors refer to “science” and “human experience.” I, for one, would like to know what is the “science” upon which they rely to substantiate their disagreement with the bishops. Their assertion about and reliance on “science” stands in need of clarification.

But in the meantime, I will offer a thought on the allegation about “human experience.” “Human experience” and powerful political lobbying may lead to the decriminalization of certain actions in specified contexts. For example, abortion and adultery and other extra-marital sexual activity were once crimes; but now, in some instances at least, they are not. That does not mean that they are no longer sins. That is a matter for God, not “science” and not “human experience”, to decide. I think the editors who wrote this editorial could have been more clear on this point. Finally, I should comment on the editorial’s remark about the lives of the “faithful.” Each of us who considers one’s self as a member of the faithful is a sinner. But, as sinners, we have the ongoing ability to seek God’s forgiveness and to amend our lives and to sin no more, as the Church teaches us. This, too, is human experience, but it seems to be the type of human experience that does not merit comment in this editorial.   RJA sj

November 30, 2006 in Araujo, Robert | Permalink | TrackBack (0)

Wednesday, November 29, 2006

Casseroles and the opposite of subsidiarity

I am grateful to a student in my seminar for this example of what Catholic social doctrine discourages, viz., a state that, if I may paraphrase the recent encyclical, bureaucratizes (and thereby reduces) personal charity.  http://www.washingtonpost.com/wp-dyn/content/article/2006/11/28/AR2006112801583.html

In Fairfax County, Virginia, soup kitchens aren't what they used to be, because the county decided not to concede power it wrongly assumes is its own to concede or not.  The Christians in the county appear to be appropriately dismayed, but they remain unable legally to do what the Gospel invites. 

November 29, 2006 in Brennan, Patrick | Permalink | TrackBack (0)

Bainbridge on faith-based investing

Steve B. writes:

Most mutual fund investors are familiar with the concept of socially responsible investing (a.k.a. values-based investing). A small chunk of that industry sector is comprised of faith-based investment funds, such as the Ave Maria funds that base their investment decisions on the social justice teachings of the Catholic Church. . . .

As an investor, I'm skeptical. . . .

As for whether persons of faith ought to suck it up and accept a lower rate of return in order to invest according to their beliefs and values, that's a post for another day.

November 29, 2006 in Garnett, Rick | Permalink | TrackBack (0)

Bishops & Democrats for Life on Amnesty and abortion

Here is a statement from the USCCB, joining Rep. Chris Smith (R) and Democrats for Life in urging Amnesty International not to squander its moral capital promoting an ersatz human right to abortion:

. . . The right to life itself is fundamental. It is the precondition of all other human rights, and its integrity depends on being acknowledged for every member of the human family regardless of race, age, gender, condition, or stage of development.

This principle is not particular to Catholic teaching. It is an insight of the natural law tradition of human rights, held in common by those of diverse religious backgrounds. Many of the great figures who advanced rights for the poor and marginalized also spoke out against abortion, including: Mohandas Gandhi, Susan B. Anthony, Elizabeth Cady Stanton, Dietrich Bonhoeffer, Archbishop Oscar Romero, Dorothy Day, Fannie Lou Hamer, and most recently, Mother Teresa of Calcutta. We find it incomprehensible that these prophets of progress would now have to be seen as enemies of a "basic" human right.

[E]ndorsing abortion would deeply divide human rights advocates, jeopardize the collaboration between Amnesty and the Catholic bishops, and impair work for social justice both at home and overseas. . . .

November 29, 2006 in Garnett, Rick | Permalink | TrackBack (0)

"Atheist fandango"

Here is a characteristically witty report, courtesy of Professor Tom Smith, on the recent "San Diego atheist fandango":

don't see why a biologist or astronomer has any more claim to speak about religion than any other reasonably intelligent person.  It seems quite the same thing as the bad habit so many Americans have of turning to movie actors for their opinions about politics.  Yet the ability to appear sad (or intelligent) when one really isn't, is hardly a qualification for opining about how to fight nuclear proliferation.  What poor, deluded apes we are sometimes.  I remember watching with growing horror some TV show years ago where Patick Stewart (a.k.a. Jean-Luc Picard) ran around outdoors and enjoyed the wilderness, or something like that.  When choosing his own words, instead of saying "Make it so" with unquestionable authority, he appeared to be a man who had never had a deep thought, or unbanal sentiment, in his life.  He was also wearing a hair piece.  One more idol bit the dust. 

As long as scientists are in the mood for educating people, perhaps they could start with themselves.  Many of them appear to need a class in Philosophy 101.  Or maybe Introduction to the Philosophy of Religion.  They would no doubt emerge with their atheism intact, but they might at least learn that most of the questions they impale themselves upon are philosophical questions, such as, Is there a God?  Can we know if there is a God?  Could the universe possibly be infinitely old?  Or even, Is it a waste of time to even ask questions such as these?  You don't see many philosophy PhD's blundering into conferences on the Higgs boson (which I think they are still looking for, but I for one have faith that it is there), because philosophers rightly think they would look like idiots if they did.  Yet famous scientists can stand up and say that religion must be stamped out, replaced by science, and so on and on, and expect to be taken seriously.  Then there are all the other questions, ones of culture and history I suppose, having to do with whether one would even want to live in a society from which religion had been eradicated by "education".  While living under the Taliban or the Spanish Inquisition would have been a nightmare, living in a land where Science had finally taken Its throne does not sound like any bargain either.

November 29, 2006 in Garnett, Rick | Permalink | TrackBack (0)

December 1, 2006
Stay the Course?
The Editors

Meeting last month in Baltimore, the United States Conference of Catholic Bishops (USCCB) issued a number of statements, including guidelines for the pastoral care of “persons with a homosexual inclination” and an instruction-titled “Happy Are Those Who Are Called to His Supper”-on who should or shouldn’t receive Communion.

Overshadowed in the media reaction to the guidelines and the bishops’ “hard saying” about Communion was Bishop William S. Skylstad’s “Call for Dialogue and Action on Responsible Transition in Iraq.” Skylstad is president of the USCCB and his statement on the war has much to recommend it. Dismissing the idea that there are only two options in Iraq, either “cut and run” or “stay the course,” Skylstad pleads for a “collaborative dialogue that honestly assesses the situation, acknowledges past difficulties and miscalculations, recognizes and builds on positive advances.”

These are sensible recommendations, necessary steps in bringing about a responsible resolution to a tragic and untenable situation. The USCCB would do well to adopt just as sensible a policy in confronting the laity’s doubts about church teaching on the meaning of human sexuality. For instance, 95 percent of married Catholics do not find the teaching on contraception persuasive. And how do the bishops respond? “Stay the course or get out of the Communion line” might be a rough paraphrase of the USCCB statements. Homosexuality is not a sin, write the bishops further, but engaging in homosexual acts is. Increasingly, Catholics find this distinction hard to square with what they know about homosexual persons. The bishops’ response? “Stay the course or get out of the Communion line.”

It is especially disappointing that before issuing their statements, the bishops didn’t bother to listen in any systematic way to either homosexual or married Catholics. If one’s syllogisms are all in order, why bother talking with people who possess such “inclinations,” or who have tried to reconcile the church’s teachings with actual marital life? Instead, the bishops stumbled on the brilliant strategy of reminding the faithful that in the church’s view, resorting to contraception and engaging in homosexual acts are equally “disordered.” Evidently, the bishops believe that equating homosexual acts with a sexual “sin” committed by 95 percent of married Catholics makes their pastoral guidelines “welcoming” to homosexual persons.

Echoing John Paul II’s idiosyncratic “theology of the body,” the USCCB’s statement on “Married Love and the Gift of Life” argues that the use of contraception introduces “a false note” into the spousal sexual relationship. By such acts, the bishops explain, you begin to make yourself “into the kind of person who lies.” When fertility is “suppressed”-rather than merely outwitted through the diagnostic calculations of Natural Family Planning (NFP)-the sexual act becomes “something less powerful and intimate, something more ‘casual.’” Married Catholics may be surprised to learn they are inveterate liars obsessed with having “casual” sex. What is not surprising is how unconvincing the argument for NFP remains. Why is it morally permissible to avoid pregnancy by using NFP, but “disordered” and an “intrinsic evil” to act on the same intention using a different contraceptive method? When the bishops can explain that, perhaps Catholics will resume listening to what they have to say about marital love.

Some outspoken conservative Catholics argue that it was the failure of the bishops to strongly affirm Humanae vitae, and not the teaching itself, that explains the encyclical’s rejection by the laity. Will the condemnation of contraception now be vigorously preached from the pulpit? If so, the effect may be the opposite of what is hoped for. Telling married Catholics that their sexual lives are seriously “disordered” will likely only increase their doubts about the church’s understanding of sexuality, while strengthening the growing moral solidarity felt between heterosexual and homosexual Catholics. Ironically, perhaps that is what the Holy Spirit has been up to at the USCCB. As the saying goes, God writes straight with crooked lines.

The point is that when “stay the course” and “cut and run” are the only alternatives in the battle over human sexuality, too many Catholics will opt for the latter. Just as Iraq requires, in Bishop Skylstad’s formulation, an honest collaborative dialogue-one that “assesses the situation, acknowledges past difficulties and miscalculations...and builds on positive advances”-so too is such a dialogue desperately needed between the laity and the bishops concerning the church’s teachings on sexual morality. The current situation, to adapt Skylstad’s words again, is indeed “taking a terrible toll,” and “moral urgency, substantive dialogue, and new directions” must be found. While “stay the course” is not an option, “cut and run” cannot become the default position. What Catholicism has to teach us about the meaning of sexuality should not be reduced to NFP.

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

Robert Miller, the Pope, and economic growth

Professor Robert Miller has some thoughts here, at the First Things blog, in response to Pope Benedict XVI's recent remarks on global development:

Speaking about the many people in the world who go hungry, Pope Benedict XVI says that we need “to eliminate the structural causes linked to the system of government of the world economy, which allocates the greater part of the planet’s resources to a minority of the population.” (See the ZENIT Daily Dispatch for November 12, 2006.)

In focusing on the allocation of goods, however, Benedict misdiagnoses the problem, which really concerns economic growth. Like most non-economists, he speaks as if the world’s stock of goods and services were fixed, the only issue being how properly to distribute them. In fact, the total amount of goods and services in the world has been increasing very rapidly for a long time. . . .

It is thus true, as Benedict says, that the greater part of the planet’s resources is enjoyed by a minority of the population, but this is because the greater part of those resources is produced by that same minority of the population. The world economy is not rigged in favor of the rich nations. South Korea did not get rich, and Zimbabwe did not stay poor, because the captains of industry and the Wall Street bankers met in a smoke-filled room and decided that they loved South Korea but hated Zimbabwe. The South Koreans got rich because they earned their riches and continue to do so, year in and year out. Zimbabweans are poor because they produce little—and less now than twenty years ago. People who produce wealth naturally think they are entitled to keep most of it for themselves and their children. I don’t dispute that such people ought to give away more of what they have, but we should be clear that they have this wealth in the first place because they are producing it themselves, not wrongfully taking it away from others.

When some people are producing a tremendous amount of wealth and others are producing little, it is fine, as a stopgap measure, to tell those producing much that they should share what they produce with those producing little. The immediate needs of the poor must be met. But any permanent solution to the problem requires that those producing little start producing more. The conditions needed to generate sustained economic growth are well known: political stability, transparent and just government, respect for the rule of law, strong property rights, free trade, free flows of capital, disciplined monetary policy, and an educated and hard-working population. Most people in the poor nations are willing to work hard, but the other conditions for economic growth rarely obtain in such nations. This is the fault, primarily, of their leaders—sometimes, it is true, aided and abetted by the governments of developed countries—who have largely prevented the emergence of the other factors needed for sustained growth. The tyranny of Zimbabwe’s Mugabe is a particularly spectacular example, but the conditions for economic growth are fragile, and pathological political, legal and economic regimes nowhere near as bad as his are quite sufficient to stifle economic growth.

In our fallen condition, such problems may be intractable. After all, we have it on good authority that we shall always have the poor with us. Still, we have to try to help when we can, and doing so begins with understanding clearly why the poor nations are poor. The problem is one of production, not distribution. Pretending otherwise only makes the problem harder to solve by obscuring its true nature.

November 29, 2006 in Garnett, Rick | Permalink | TrackBack (0)

Balkin's two abortion rights

In this post, and in this article, Professor Jack Balkin proposes and fleshes out the argument that we should think in terms of two abortion rights, not one:

The first right to abortion is a woman's right not to be forced by the state to bear children at risk to her life or health. The second right is a woman's right not to be forced by the state to become a mother and thus to take on the responsibilities of parenthood, which, in our society are far more burdensome for women than for men. Although the first right to abortion continues throughout pregnancy, the second right need not. It only requires that women have a reasonable time to decide whether or not to become mothers and a fair and realistic opportunity to make that choice. . . .

The state's interest in protecting unborn life is most compelling in the later stages of pregnancy. But letting states vindicate this interest when it is strongest is not necessarily inconsistent with the second right to abortion. When a woman's health and life are not at risk, the second right requires that women have a right to a fair and realistic opportunity to choose whether or not to become a mother, and in most cases this choice can usually be made in the earlier stages of a pregnancy. . . .

There's a lot more (about, among other things, the "discourse shaping" character of his approach).  Take a look.  For my own part, two quick thoughts:  First, it seems that Balkin's handling of the "first" abortion right does not say enough about what he means by "health."  Does he mean to say -- and, his discussion of self-defense might suggest that he does -- that the first abortion right is not timebound because women always have a right not to be forced to bear children at the risk to her life or physical health?  Or, would he incorporate into his first right the much more expansive understanding of "health" that seems to be at work in the Court's cases?

Second, I wonder if the discussion, or the analysis, change if, instead of asking when the interest of the state in protecting fetal life justifies limiting the exercise of the "second" abortion right, we ask instead about the point at which the moral claims of the unborn child -- his or her own moral claims, and not just the interests of the "state" -- justify such limits?

November 29, 2006 in Garnett, Rick | Permalink | TrackBack (0)