Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Saturday, March 31, 2007

Income Inequality, Revisited

I've been on the road for the better part of the last three weeks.  I don't think anyone at MOJ has yet blogged on this:

New York Times

March 29, 2007

Income Gap Is Widening, Data Shows

Income inequality grew significantly in 2005, with the top 1 percent of Americans — those with incomes that year of more than $348,000 — receiving their largest share of national income since 1928, analysis of newly released tax data shows.

The top 10 percent, roughly those earning more than $100,000, also reached a level of income share not seen since before the Depression.

While total reported income in the United States increased almost 9 percent in 2005, the most recent year for which such data is available, average incomes for those in the bottom 90 percent dipped slightly compared with the year before, dropping $172, or 0.6 percent.

The gains went largely to the top 1 percent, whose incomes rose to an average of more than $1.1 million each, an increase of more than $139,000, or about 14 percent.

The new data also shows that the top 300,000 Americans collectively enjoyed almost as much income as the bottom 150 million Americans. Per person, the top group received 440 times as much as the average person in the bottom half earned, nearly doubling the gap from 1980.

Prof. Emmanuel Saez, the University of California,  Berkeley, economist who analyzed the Internal Revenue Service data with Prof. Thomas Piketty of the Paris School of Economics, said such growing disparities were significant in terms of social and political stability.

“If the economy is growing but only a few are enjoying the benefits, it goes to our sense of fairness,” Professor Saez said. “It can have important political consequences.”

[To read the whole article, click here.]

March 31, 2007 in Perry, Michael | Permalink | TrackBack (0)

Benedict, CST, Labor and the Market

The Pope recently made the statements about labor excerpted below in this clip from ZENIT. MOJ readers may find them relevant to our ongoing discussion of CST and the market and the tensions between CST and economic liberalism. Law profs and lawyers will also recognizae their obvious implications for lawyers struggling between the demands of practice and the Catholic sense of time, the purpose of labor and human flourishing, as Amy Uelmen, Cathy Kaveny and others have explored so eloquently.


Pope Calls for Revaluing Human Side of Work
Sends Message to Young Professionals in Forum

VATICAN CITY, MARCH 30, 2007 (Zenit.org).- In a message sent to young professionals gathered to analyze the world of labor, Benedict XVI appeals for a revived appreciation of the human dimension of work.

The Pope's appeal was sent to participants in the 9th International Youth Forum, organized by the Pontifical Council for the Laity, on the theme "Witnesses of Christ in the Labor World" being held in Rome through Sunday.

Three hundred 20- to 35-year-olds from about 100 nations are participating in this encounter.

The Holy Father points out in his message: "The process of globalization going on in the world has brought on a need for mobility, which obliges many young people to emigrate and live far away from their birthplace and from their families.

"This generates a disquieting sense of insecurity, with indubitable repercussions on the ability not only to imagine and adopt a plan for the future, but also to concretely commit oneself to marriage and to the formation of a family."


"In a context of economic liberalism conditioned by market pressure, by competence and competitiveness," the Pontiff underlined "the need to value the human dimension of labor and to guarantee the dignity of the human person."

"The final reference point of any human activity can be only the individual, created in the image and likeness of God," he added. "Work is part of God's project for the human being" and implies "a participation in his creative and redemptive work."

Benedict XVI continued: "Therefore, every human activity should be a motive and a place of growth for the individual and for society, a development of personal 'talents' that must be valued, a service oriented toward the common good, with a spirit of justice and solidarity.

"For the faithful, moreover, the ultimate finality of labor is the building up of the Kingdom of God."

To face these "complex issues," the Pope proposed Catholic social doctrine as a reference point for the young professionals.

"Today, more than ever, it is urgent and necessary to proclaim the 'Gospel of work,' to live as Christians in the world of labor and to become apostles among workers," the Holy Father asserted. "But to complete this mission one must stay united to Christ with prayer and an intense sacramental life, and with this objective, to value Sunday, the day dedicated to the Lord."

-- Mark

March 31, 2007 | Permalink | TrackBack (0)

Catholic Legal Theory and Final Things (end times)

Since its inception, the Mirror of Justice has examined in varying degrees many legal issues through the lens of Catholic Legal Theory (CLT). If CLT were an ambiguous notion several years ago, MOJ postings have made strides in clarifying what it is, is not, and might be. Through the course of presentations and debates, nuanced examinations on questions involving corporate governance, law and economics, conscience, religious liberty, capital punishment, slavery, the common good, solidarity, subsidiarity, and justice (to mention but a few topics addressed on this site) have been examined through the perspectives of contributors who, in one form or another, claim participation in the CLT project.

Today, as we approach the beginning of Holy Week, I would like to raise something that may have previously escaped our corporate and individual studies: the relation between CLT and end things or end times—eschatology to use the ecclesiastical and theological term. In the context of our preparation for Easter and the powerful reminder that Christ lived, died, and was resurrected in God’s plan for human salvation, does the law, does CLT have a role in all this? Well, I suppose for many lawyers, judges, law students, law makers, law enforcers, and the citizenry at large, my question may have little or no meaning. But for those who participate in CLT, should it not?

It would seem that any academic project having a foundation in the Catholic faith would at some point be concerned about human destiny, individual and communal. As the Eighth Psalm reminds us, “what is man that you are mindful of him, and the son of man that you care for him?” From a Catholic theological perspective, this text from the Old Testament about human nature leads us to the view that each person’s destiny is tied to union with God forever as is emphasized by Saint John’s Gospel—“For God so loved the world that he gave his only-begotten Son, that whoever believes in him should not perish but have eternal life. For God sent the Son into the world, not to condemn the world, but that the world might be saved through him.” As I ponder the meaning of all this and the questions dealing with end things and times, I would like to suggest that human law and certainly human law as understood, studied, explained, and molded by CLT does have a role in God’s plan for human destiny.

I begin with a presupposition that CLT views the law not as an end in itself but as a means to promoting something else that deals with human nature and our relation to God and to one another. If this premise has merit, then should we not think that the telos of the law is more than just good governance by the authority of the rule of law that protects people and makes them more responsible to one another? I tentatively submit that the role of the law from a CLT perspective might have something to do with maximizing—in the context of human authority and contribution—God’s promise of salvation and union with Him insofar as human beings can make a contribution to God’s plan. Let me take by way of illustration the question of capital punishment. While we may agree that a convicted person has unquestionably committed such a grievous crime to which a death penalty may apply according to the civil law, does not or should not CLT argue that some other punishment (which still protects society from the further mischief of the convicted) not involving death is more appropriate so that the justly convicted may be given the maximum opportunity to offer contrition and seek God’s forgiveness before his or her end time is met? Would not legal regimes dealing with the “right to life” (abortion, health care, nutrition, etc.) as understood from a CLT perspective be inclined to ensure that everyone has the maximum opportunity to live and lead a productive life so that he or she again has the highest opportunity to meet God properly prepared when his or her end time approaches?

The degree to which consideration about the end times and end things enters the discussion of any legal issue will vary, I think. But Holy Week might just give us the opportunity to consider this matter that I have raised. In the meantime, may the contributors and readers of MOJ have a blessed Holy Week and celebrate a joyous Easter!   RJA sj

March 31, 2007 in Araujo, Robert | Permalink | TrackBack (0)

Friday, March 30, 2007

Subsidiarity's ambiguities

I appreciate Rob's recent queries about the cash value of my understanding of the principle of subsidiarity.  Before I can turn to Rob's three points, there's a threshold issue.  My paper is a deliberate attempt to apply the principle as understood in the Church's social doctrine to a concrete social problem of contemporary America.  Where would the Church's principle get us in terms of allowing poor parents to give their children the education they (and the Church) judge that they should have.  I may well be wrong in my understanding of the magisterium's teaching about the principle (indeed, on reason to steer clear of subsidiarity in trying to advance the discussion in Catholic terms is that the term has been used in too many senses, including by the popes), but there are texts to consult, parse, interpret, and, of course, judge for whether or not they articulate a true principle.  I think I do affirm as true the principle as articulated in the magisterial teachings, and I would add that Rob's version of the principle seems to me different from the magisterium's.  For purposes of the present discussion, however, let's leave behind what the magisterium has said about subsidiarity.  Let's just ask what people mean by subsidiarity and whether those propositions are true.

If we're not talking about the Church's understanding of the principle, then what are our sources for saying what the principle is/means.  Common usage?  I would agree with Rob that in common usage, the principle is (roughly) that ruling authority should devolve to the lowest level at which it can be exercised competently.  But is this true?  Is it true that power should devolve to the lowest level at which it can be exercised competently?  Rob seems exclusively to be asking whether the principle is "helpful" or useful.  I'm asking whether it is true.  Of course, I do believe that the true is both useful and helpful, in a very deep sense, but there's no guarantee of its convenience or utility.

My answer to my last question is no.  That is, there does not exist a true moral principle that calls for the devolution of power to the lowest level at which it can be exercised competently. 

Why?  As I see things -- that is, I affirm as true that -- we confront a world in which ruling authority is always already distributed, at least in potency. Subsidiarity, furthermore, is a derivative principle that describes the relations that do or should obtain among those ruling authorities.  The common conception of subsidiarity as calling for devolution makes the assumption that ruling authority starts at the top (in "the state") and should then be made to devolve according to a criterion of competence/efficiency.  The conception of subsidiarity I am affirming as true proceeds from a prior judgment that authorities are plural and primordial to begin with, never the sole possession of the sovereign state, then it then to parcel out and downward.  From the prior judgment, about ruling authorites that are already out there (at least in potency), I derive the the principle of subsidiarity that provides a norm for relations among those authorities.

But it's that prior judgment that is the stumbling block for most people, I suspect.  So, to take Rob's third point, a sufficient reason that the state shouldn't force the Church, as a condition of assisting in any adoptions at all, to assist with adoptions to same-sex couple, is that to do so would be to trench on the Church's ruling authority that the Church posssesses not as a concession of (or conditional devolution from) the state.

The question is always whether there is, at least in potency, genuine ruling authority.  When there is, subsidiarity kicks in, if you will.  So, what about Rob's second point, concerning "local empowerment?"  The question I would ask about a local group is whether it is posessed, at least in potency, of genuine ruling authority.  I would reach different judgments about trade unions that seek just wages and well-organized lnych mobs.  I'm sure job would too, but my point is that "local empowerment" is not a freestanding norm.   

On the principle I affirm as true, authority derives, in part, from conformity with the true and the good.  So, finally, with respect to Rob's first point, I'm not making an argument in favor of "imposing truth claims."  Communities that possess genuine authority must in fact co-exist with other communities, according to judgments of "prudence," but not every group we have to co-exist with is possessed of genuine authority.  The world stage is ample evidence of this.  Power is different from authority.

I suspect Rob and I disagree, at least in part, about the contents of the ontology that precedes the possible operation of the principle fo subsidiarity.  Some of what I affirm as the contents of that ontology I reach based on the contents of Christian revelation, some on basis of natural morality.  Which leads me back to one issue in Rob's third point.  I don't believe that the Church's affirmation of a right to religious liberty contains a right to conduct that violates natural morality.   It may be prudent to tolerate such conduct, and of course -- and this is the point -- we argue argue even among friends about the contents of natural morality, but this much at least, I think, is true:  the Church teaches that there is a naturally accessible morality that is binding on all rational humans. 

Perhaps it's at the level of this last claim that our disagreement begins.  On the position I'm taking, it is because we -- individuals and socieities have naturally- and supernaturally-given functions to perform that we can have genuine authority, and it is from the marvelous plurality of such authorities -- from schools, families, Church, unions, etc. -- that the principle of subsidiarity is derivative.  Rob worries (point two) that if people agree about morality and act accordingly, subsidiarity will go out of business.  On my position, a world of morally upright actors would contain authorities beyond numbering, and subsidiarity would faciliate their interaction.   

There's much more to say about this (especially about this notion of "functions"),  and I'm conscious of not having done justice to Rob's points.  It's amazing how much two people who both want to use the word subsidiarity to benign purposes can disgree about.  I know I agree with Rob that very often the "lowest level" will in fact be where ruling power should be located -- but we get there by very different routes, and my route depends an an ontology of authority that Rob probably won't find acceptable.  Again, there's a lot more to be said about this, some of which is in long text of my "Harmonizing Plural Socieities" paper.  (Btw, thanks, Rob, for your respectful attention to the paper).  On authority specifically, there's more -- from a different angle, however -- in my "Locating Authority in Law" paper, which is posted on the right here.


March 30, 2007 in Brennan, Patrick | Permalink | TrackBack (0)

religious liberty and truth

Rob asked about the relationship between religious liberty and truth and wondered why truth doesn't limit the operation of religious liberty. I think Dignitatis Humanae does make it clear that religious liberty must be understood in light of and is limited by the objective moral law. According to Father Brian Harrison, Dignitatis Humanae's reference to the objective moral law was inserted after an intervention by then-Archbishop Karol Wojtyla. This linkage between freedom and truth was a key theme for Pope John Paul II throughout his pontificate, in particular in Vertitatis Splendor.

The Catechism (at 2108-2109) makes this point in this way: "The right to religious liberty is neither a moral license to adhere to error, nor a supposed right to error, but rather a natural right of the human person to civil liberty, i.e., immunity, within just limits, from external constraint in religious matters by political authorities. This natural right ought to be acknowledged in the juridical order of society in such a way that it constitutes a civil right. The right to religious liberty can of itself be neither unlimited nor limited only by a 'public order' conceived in a positivist or naturalist manner. The 'due limits' which are inherent in it must be determined for each social situation by political prudence, according to the requirements of the common good, and ratified by the civil authority in accordance with 'legal principles which are in conformity with the objective moral order.'"

Dignitatis Humanae did not endorse Casey-style reasoning about individual moral autonomy.

Richard M.      

March 30, 2007 in Myers, Richard | Permalink | TrackBack (0)

Thursday, March 29, 2007

"Law and the Catholic Social Tradition" update

This quarter, I am teaching a course called "Law and the Catholic Social Tradition."  (I posted the syllabus here, a few days ago.)  What I thought would be a small seminar has grown quite a bit; it looks like we'll have about 30 in the "seminar." 

On Tuesday, Chicago's archbishop, Cardinal George, was generous enough to join us for dinner at the Law School, and to share his thoughts on the Compendium generally, and the "CST and the law thing" more generally.  On Wednesday, we had our first meeting, and I am excited and optimistic about the class.  The students are a very diverse and, it appears, engaged group.  I suspect that I will be sharing some of their thoughts with MOJ readers in the weeks to come, so stay tuned. . . .

March 29, 2007 in Garnett, Rick | Permalink | TrackBack (0)

Brennan on Subsidiarity

I recommend reading Patrick Brennan's article in the current Journal of Catholic Legal Studies titled Harmonizing Plural Societies.  Of particular interest to me is his criticism of my past explications of subsidiarity.  I have written that:

If we claim that subsidiarity renders localization in a particular context valid only to the extent that the local body’s approach contributes to the common good, as defined by the truth claims of the moral anthropology [of the Church], we have emptied subsidiarity of its real-world meaning. If localization’s validity is measured against a standard derived from a contested vision of the good, subsidiarity becomes a simple prop, justifying whatever vision of the good happens to hold sway in the political and legal spheres.

Patrick counters that:

As understood in the tradition of Catholic social thought subsidiarity is not a principle that justifies subversion of claims on behalf of universal truths about the good for human and group persons.  Magisterial Catholic social thought affirms plural societies and their respective authorities, and it does this on the ground that each possesses a munus proprium, a share in the divine rule, which, as the ontological principle subsidiarity attests, is irreducibly its own in concert with other genuine societies. . . . Any genuine authority is a share in divine providence, and the legitimacy of its exercise depends upon its being ordered to the good of individuals, group persons, and the common good.

I'm in no position to quibble with Patrick's reading of the Magisterium, but his criticism prompts one comment and two questions.

First, I don't read subsidiarity to justify the subversion of any truth claims; rather, I read subsidiarity to justify a degree of hesitation before imposing truth claims on unwilling subcommunities.  Maybe this is a function of prudence, not subsidiarity, but I guess I have a hard time separating subsidiarity in operation from judgments grounded in prudence.

Second, if subsidiarity only contemplates the devolution of authority to the extent that the authority is exercised in keeping with the Church's understanding of the common good, of what practical relevance is subsidiarity?  To me, subsidiarity is helpful because it calls for local empowerment, even if the local bodies refuse to abide by the majority's norms.  Catholic social thought aims to bring the majority's norms in line with the moral anthropology, but if we succeed in that endeavor, then is subsidiarity no longer a pressing concern?  In other words, we'll invoke subsidiarity to justify excusing ourselves from conforming to unjust societal norms; but once we render the societal norms just, subsidiarity is no longer a justification for subcommunities who disagree with our norms?

Third, if the Second Vatican Council was right on the question of religious liberty -- not just as a matter of prudence, but as a substantive vision of the good -- why shouldn't the good also encompass the freedom of subcommunities to pursue their own erroneous conceptions of the moral life?  For example, I believe that Massachusetts is wrong, based in large part on the principle of subsidiarity, to force Catholic Charities to provide adoption services to same-sex couples.  If the policy was reversed and Catholic Charities was allowed once again to discriminate, should the Church turn around and seek to ban a secular non-state agency from including same-sex couples in their services?  Assume, for the sake of the argument, that the only evidence of "harm" resulting from same-sex adoption is that children will grow up less likely to believe that homosexuality is immoral.  In other words, assume that there is no evidence that the children's well-being is negatively impacted other than well-being as defined in the Church's own (contested) moral claims.  Just as religious liberty facilitates "harm" -- it allows children to be raised without any exposure to the Gospel, for example -- why shouldn't subsidiarity facilitate "harm" -- allowing subcommunities to pursue lives in defiance of the Church's moral teaching?  To make a rambling inquiry (hopefully) more concise: why does Truth limit subsidiarity's operation, but not religious liberty's operation? 

March 29, 2007 in Vischer, Rob | Permalink | TrackBack (0)

Wednesday, March 28, 2007

Dobson Being Dobson

When James Dobson talks, it makes me think that maybe John Rawls' "public reason" requirement is not such a bad idea.  Dobson is skeptical of Fred Thompson's possible presidential run because:

"Everyone knows he's conservative and has come out strongly for the things that the pro-family movement stands for," Dobson said of Thompson. "[But] I don't think he's a Christian; at least that's my impression," Dobson added, saying that such an impression would make it difficult for Thompson to connect with the Republican Party's conservative Christian base and win the GOP nomination.

Mark Corallo, a spokesman for Thompson, took issue with Dobson's characterization of the former Tennessee senator. "Thompson is indeed a Christian," he said. "He was baptized into the Church of Christ."

In a follow-up phone conversation, Focus on the Family spokesman Gary Schneeberger stood by Dobson's claim. He said that, while Dobson didn't believe Thompson to be a member of a non-Christian faith, Dobson nevertheless "has never known Thompson to be a committed Christian—someone who talks openly about his faith."  "We use that word—Christian—to refer to people who are evangelical Christians," Schneeberger added.

March 28, 2007 in Vischer, Rob | Permalink | TrackBack (0)

More on Conscience

The Los Angeles Times provides an overview of the recent controversies in Minneapolis over Muslims' claims of conscience in the workplace. 

March 28, 2007 in Vischer, Rob | Permalink | TrackBack (0)

Blankenhorn v. Carpenter

In the Weekly Standard, David Blankenhorn has an article on same-sex marriage based on his new book, The Future of Marriage.  He argues that:

When it comes to the health of marriage as an institution and the legal status of same-sex unions, there is much to be gained from giving up the search for causation and studying some recurring patterns in the data . . . . It turns out that certain clusters of beliefs about and attitudes toward marriage consistently correlate with certain institutional arrangements. The correlations crop up in a large number of countries and recur in data drawn from different surveys of opinion.

Dale Carpenter responds here and here.  Though Carpenter describes Blankenhorn's book as "deeply wrong," he also calls it "probably the best single book yet written opposing gay marriage."

March 28, 2007 in Vischer, Rob | Permalink | TrackBack (0)