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.

Monday, August 27, 2007

Inequality Revisited

We've had several discussions on this site about the possible problems with rising economic inequality, apart from increases in absolute levels of wealth.  I hope I'm not duplicating someone else's post here, but Cornell economist Robert H. Frank has come out with a great little paperback, entitled "Falling Behind," which makes a strong case that rising inequality can make people worse off, even when their standard of living is increasing in absolute terms.  Here's a link to the NY Times review.  The book is short and sweet, weighing in at a very readable 125 pages.  Frank brings together and distills a great deal of information to make his case.  (He has, for example, some wonderfully eye-popping charts contrasting the distribution of economic gains in the three decades after WWII with the distribution of economic gains in the last three decades of the 20th century.)  And his conclusions are very consistent, I think, with CST's insistence that inequality is an important concern in its own right.  Highly recommended.

UPDATE:  MOJ reader Patrick O'Donnell passed along these links to commentary on Robert Frank's latest book by Seton Hall law prof. (and also MOJ reader) Frank Pasquale over at Concurring Opinions.  Pasquale's commentaries are well worth reading, and I commend them to MOJ readers.  Pasquale takes issue with Frank's reliance on happiness surveys to make his argument that inequality makes people worse off.  I share Pasquale's basic concern, because I (like him) reject a subjectivist ethic and agree that envy is something to be discouraged.  Despite this (and I don't think Pasquale would disagree with me here), I think that Frank's argument ought to be recognized as an interesting and positive development within the field of economics because it takes neoclassical economic assumptions to task on their own subjectivist terms for neglecting an important dimension of human welfare (as they understand it).  I always like it when people are hoisted on their own petards, so kudos to Frank for that contribution.   But, even beyond that, I think the significance of the happiness data on which Frank relies may ultimately survive -- or at least be rehabilitated against -- Pasquale's important line of attack.  While envy might not be an edifying sentiment, it's a real and predictable one, and one whose incidence policymakers are justified in taking into account in crafting social policy.  Pasquale points towards objective consequences of inequality that he thinks are valid considerations for crafting social critique.  I agree with him that those consequences are real and important, but let's set them aside and focus on the more subjective consequences whose significance he questions.  Within a particular cultural context, or, given the breadth of Frank's data, a particular conception of (fallen) human nature, high degrees of inequality appear predictably to foster heightened degrees of envy and dissatisfaction within human socities.  And, in turn, those heightened degrees of envy (predictably) (1) foster materialist and consumerist arms races of the sort Frank describes, and (2) undermine social cohesiveness.  It seems to me that the (subjective) phenomena Frank is describing predictably yield (objectively) troubling social dynamics that are a proper subject of concern even for those of us who reject the notion that subjective feelings of happiness ought to be the central basis for evaluating social  structures.  I guess I'm saying that I agree with both Franks.  I agree with Frank Pasquale that what matters are objective criteria of human well being ,and I agree with Robert Frank that the  data on the relationship between inequality and subjective happiness is relevant.  These two positions are consistent, I think, because the subjective unhappiness/envy that arises from excessive inequality generates an objectively dysfunctional social order.

August 27, 2007 | Permalink | TrackBack (0)

Thoughts on Ave Maria Law School

X-posted from PB.com:

We the undersigned alumni and other members of the Ave Maria School of Law community past and present, hereby strongly oppose the actions of the school's administration and Board of Governors in ejecting Professors Stephen Safranek, Philip Pucillo, and Edward Lyons from our community. The administration and Board have disregarded these professors' academic excellence, Catholic sensibility, ethical integrity, and personal sacrifice. Their ejection, widely recognized as a purge of faculty that disagree with the administration and Board on issues of governance and decision-making processes, is gravely injurious to our school's mission, seriously damaging to its reputation, and inconsistent with the principles of a Catholic academic community. The injury is exacerbated by the direct harm caused to students who are enrolled in these professors' classes and who are entering the grueling federal judicial clerkship application process, a process whose deadlines are imminent and whose miraculous success for our community has been largely due to these professors' tireless and irreplaceable efforts. We therefore implore the administration and Board to fully reinstate these professors before the fall semester begins.

(HT: Leiter) This petition was prompted by employment actions by the administration against the mentioned faculty, which had elicited a prior statement by "a majority of the faculty of Ave Maria School of law," expressing their

... profound sorrow regarding the deplorable treatment of tenured Professor Stephen J. Safranek at the hands of the administration of Ave Maria School of Law. Dean Bernard Dobranski has initiated the process to terminate Professor Safranek's tenure and the School has now suspended him without pay (as of September 15, 2007) during the termination process. We believe that it is critical to publicly disassociate ourselves from and condemn the administration's conduct.

I have been reluctant to comment on the Ave Maria situation in the past, because I do not know all the facts. I am still unwilling to take sides. Yet, as a Catholic legal academic, I now believe that the currect situation at Ave Maria is bringing both Catholicism and Catholic legal education into disrepute. To put it in the economic terms I am most comfortable with, what started out as a local dispute is now generating negative externalities affecting all of us with an interest in Catholic legal education. One prays that the contesting sides will join together and prayerfully seek reconciliation.

August 27, 2007 | Permalink | TrackBack (0)

Koppelman on God and human rights

Over at Balkinization, Andy Koppelman has weighed in -- with this post, "The Partly Necessary God" -- to the Perry / Tamanaha / Vischer / Balkin / Araujo / etc. discussion on God and the morality of human rights.  (It strikes me that Andy's post works well in conversation with Michael Scaperlanda's, here.)

For starters, Andy takes it as having been "shown" that "religion isn't necessary to human rights" and also that religion is not "sufficient" for human rights (after all, "belief in God has sometimes produced massive human rights violations").  The latter point, certainly, is beyond dispute.  (It is, of course, not beyond dispute that theism has produced more or worse human rights violations than atheism.)  As for the former, I'm not sure.

I've never understood Michael's claim to be that "human rights" cannot exist, in positive law, or that they cannot be enforced through litigation or protected in law, without "religion."  As Andy puts it, referring to the "old gag about believing in adult baptism, all I can say is that 'I've seen it done.'"  One can litigate or decide well human-rights cases, and one can "believe" in human rights, and one can struggle and sacrifice for human rights, without being a theist.

But, I've understood (maybe I have him wrong) Michael's claim to be that "the morality of human rights" is one that proceeds from and -- to the extent it describes moral realities, rather than preferences or conventions -- depends on human-dignity claims that themselves depend on "religious" claims about the person.  That is, I understand Michael's point to be that, if it is not the case that, in some sense, we are created, sustained, and loved by God, then, at the end of the day, it is not the case that we have "human dignity" in the way that the "morality of human rights" assumes.  This point is not refuted, it seems to me, by the observation that some people believe in God, but disrespect human rights, or by the observation that some people disbelieve in God, and vindicate human rights.  The challenge, it seems to me, is to figure out whether what needs to be true in order for the morality of human rights to be founded in something other than preference or convention really is true. 

Now, one could concede this and still say that theism is not necessary, that -- say -- Kant will do.  (Assuming that Kantian morality does not itself depend on theism.)  And then, I guess, the question is whether we think that, all things considered, the theistic account of the foundations of the morality of human rights is, on the merits, more reasonable than the Kantian account.

At the end of the day -- and this was the point made several days ago by Rob -- the question remains whether it matters whether or not we should care whether or not the morality of human rights, as practiced and endorsed by non-theists, really requires theistic foundations.  Koppelman ends his post:

We should be grateful for allies, instead of complaining that my foundation is better than yours.

Maybe so.  Thoughts?

UPDATE:  Reader and law prof Chris Green writes: 

"The challenge, it seems to me, is to figure out whether what needs to be true in order for the morality of human rights to be founded in something other than preference or convention really is true."  Exactly right.

I've weighed in on Andy's last does-it-matter point a couple of times in the Balkinization threads here and here and here.  Here's a paraphrase of the last one: The general proposition that "believers and non-belivers should not attack the core beliefs of the other" (Tamanaha's restatement of Koppelman's admonition) seems self-referentially incoherent, at least if "attack" includes criticism, as it seems to in context.  That suggests that we shouldn't argue with each other about whether God exists. But that would only make sense if it doesn't matter much whether God exists, and lots of people have a core belief that (to put it mildly) it matters an awful lot whether God exists. So this suggestion itself seems to be attacking one of those people's core beliefs.

I also put up some thoughts on the Bainbridge blog here, defending at some length the thought that morality needs something like God that exists necessarily in order to undergird moral claims that are subject to challenge by hypothetical counterexample.

August 27, 2007 in Garnett, Rick | Permalink | TrackBack (0)

Law From a Catholic Lens

On the occasion of the publication of Recovering Self-Evident Truths:  Catholic Perspectives on American Law, Zenit interviewed Kevin Lee, MOJ friend and contributor to the book, on “Law From a Catholic Lens.”  What follows is a large excerpt of the interview.  For the full interview click here.

Q: Why is it necessary to ground an understanding of a legal system in a distinctively Christian anthropology?

Lee: It is not "necessary," in the sense that it is possible to create a legal system rooted in some other anthropology.

Much of contemporary American legal theory, for example, can scarcely be considered compatible with a Christian anthropology.

But I think Catholic anthropology has a contribution to make. It offers a unique understanding of the irreducible dignity of the person and the giftedness of the community.

Catholic thought affirms that human beings are creatures with particular natures, capacities and limitations.

We all have dignity as bearers of the "imago Dei," but we are also sinful and prone to weaknesses. We form communities naturally, through small acts of love and kindness, but that does not mean that we are not capable of meanness and selfishness.

The Anglo-American legal system could simply abandon its Christian roots as archaic or nonsensical, but doing that would mean abandoning our tradition and denying that tradition has anything to offer.

Anyone who would advocate that position would bear a heavy burden of proof.

Q: A number of scholars are rediscovering the Catholic influence on the formation of Western legal systems -- an influence that lasted well into the last century. Does the Catholic conception of reciprocal rights and duties, so long a part of Anglo-American law, continue to govern our legal system, or have individualistic and modern liberal theories such as those of John Rawls transformed American law?

Lee: There is no doubt that the contemporary Anglo-American legal system has been massively influenced by modern liberal democratic theories.

But, I don't think that Catholic thought is in total opposition to either modernity or liberalism. It is much more complex than that.

Modern liberals, like Catholics, are concerned with rights and justice.

For example, Pope John Paul II's passion for individual freedom against totalitarian rule found support among liberals.

The critique is more nuanced than a simple rejection of modernity and liberalism.

Q: What role does natural law play in Catholic legal theory? Is the natural law the "self-evident truths" that the American founders asserted governed political life?

Lee: Natural law is based on the belief that nature has rational purposes. It seeks to read moral precepts from such purposes as they are visible in nature.

Citing St. Paul's letter to the Romans, Christian natural law theorists have held that these precepts are based on self-evident foundational principles. But, it is a theory that is no longer widely accepted.

Modern science opposes the idea that there is any purpose to nature, moral or otherwise.

Contemporary secular philosophy largely denies moral truth altogether, and even contemporary Christian ethicists tend to look to virtue rather than law when speaking about morality.

Nonetheless, natural law theory still offers many insights and poses interesting questions.

For Christians, natural law theory has to be worked out in relation to the creation stories of Genesis. There are of course two antithetical natures for human beings in Genesis: one of eternal innocence and integrity, and the other of the fall and fragmentation.

The fall suggests a limit to our ability to gain moral knowledge from examining nature. It is possible to read the signs of nature correctly only if we understand the realities to which the signs refer.

But the fall impedes our capacity to know the ultimate reality because we no longer read the signs correctly. So a complete reading of the natural law will always elude our fallen, temporal selves.

Catholics typically have been more optimistic than Protestants in assessing the depth of our fallen nature. They have tended to argue that even the fall calls us to salvation because we can remember something of our pre-fallen state.

Protestants are more likely to see the fall as a complete forgetfulness of God that can only be healed by God's initiative. Nonetheless, Catholics and Protestants agree that we are deeply marked by the fall, and reason alone does not secure our ability to "read the signs" that tell of the purposes of nature.

That is why reason alone offers no sure guide to moral life. Benedict XVI has referred to the "pathologies of reason" to suggest this danger.

Christian moral theory must always be sensitive to excessive claims about the role that nature and natural reason can play in the moral life.

God's gifts of grace -- or example what St. Thomas called the infused virtues: faith, hope and charity -- are essential to the moral life, but they are typically discounted in natural law theories because they suggest limits to natural reason, and therefore moral knowledge is not self-evident.

August 27, 2007 in Scaperlanda, Mike | Permalink | TrackBack (0)

Sunday, August 26, 2007

Theism's Reasonableness and the Foundation of Human Rights

Robby George recommmends Grisez's in God? A Philosophical Preface to Faith for those interested in studying a compelling argument for the reasonableness of belief in God. 

In light of Brian Tamanaha August 21 post on Balkinization and in light of the comment made by Charles to a post on Steve Bainbridge's blog, I'll further clarify what I said in an ealier post, arguing that theists have a sturdier foundation for human rights than a-theists.

Is there a strong rational basis for human rights?  If so, what is it?

I agree with Brian T. that atheistic and materialistic foundations for human rights are tenuous.  How can there be a rational basis for inherent human dignity in an irrational universe?  There can't!

But, as Brian recognizes, there is a rational basis for inherent human dignity (which is the basis for universal human rights) if we were created by a certain type of God.  But, here is the stumbling block for Brian.  God's existence has not been proven.  From this he concludes, if I understand him correctly, that the theist's foundation for human rights is equally tenuous.  But, I think he requires too high a burden of proof - "a beyond a shadow of a doubt standard" - for God's existence.

If belief in God is reasonable, then theism (even by Brian's own logic, I think?) supplies a rational basis for human rights where atheism does not.  But, what if it is more reasonable (perhaps substantially more reasonable) to affirm God's existence than to deny it?  See Grisez.  Then it seems to me that the theist's foundation for human rights is sturdier still.

Now to Brian T's question of why does it matter?  Why do theists (like us at MOJ) risk alienating good, moral, human rights desiring atheists by insisting that theism provides a sturdier foundation for human dignity and rights than atheistic foundations?  First, we don't (or I don't) want to alienate any person of good will, theist or atheist.  We (I) desire and welcome fellow travelers from all walks of life and with all belief systems.  But, we (or at least I) do not think that a tenuous non-theistic (closed to special revelation and closed to general revelation - natural law) basis for human rights can protect the dignity of persons long term in the face of all the evil, selfishness, and unbridled desire for power and control in the world.  History has shown that even the sturdier (reasonable) theistic foundation has a hard time taming our disordered desire to treat other human beings as objects for our use and gratification.  An a-theistic foundation will have, I concluded, an even harder time and will ultimately fail because it cannot give a strong account of why a particular type of matter (the material that makes up a human being) ought to be respected in a solely materialistic universe. 

August 26, 2007 in Scaperlanda, Mike | Permalink | TrackBack (0)

Saturday, August 25, 2007

Pre-Enlightenment Jewish and Christian Foundations to Human Rights

Its not quite “later in the day,” but I am finally getting back to Rob’s response to Jack Balkin's post regarding the development of human rights.  Jack says:  For religion to ground universal human rights in the very attractive way that the previous discussion has assumed, that religion must be of a very special sort, and, I would suggest, it must be of a form that arises most commonly following the Enlightenment.”

I would like to suggest that history shows that the foundations for modern human rights were laid (both directly and indirectly) long before the Enlightenment. 

In the Old Testament, we see the idea planted that those outside the community and the marginalized within the community are to be treated with respect.  The duty toward the alien among them, the duty to leave some crop in the field to be gleaned by the poor, and the concept of a jubilee year where the economic playing field was leveled are all evidence that Israel had started to think about human rights in a way that transcended old boundaries (citizenship and class).

In the New Testament, we see this idea advanced through Christ who came for all human kind.  In Him there is no Jew or Greek, no woman or man.  The NT is full of references to the universal nature of human dignity.  One that sticks out and is particularly appropriate for lawyers is the dialogue between Jesus and a lawyer who asks Jesus who is this neighbor that must be loved like oneself.  In the story of the Good Samaritan, we see that the neighbor is one who is “other;” in fact, one who is an enemy of Israel.  Again, the seeds are their in the Gospels and the rest of the NT for the development of universal human rights.

Much of the rest of my remarks will come from Thomas Woods’ How the Catholic Church Built Western Civilization.  This is a book accessible by popular audiences but with good notes for those with an academic interest.  Some of it also comes from Harold Berman’s Law and Revolution.  What follows are just a few of Christianity’s contributions to human rights pre-Enlightenment.

  • The Investiture crisis a millennium ago, established two important principles that are necessary for the development of universal human rights:  1) a rejection of the totalitarian state and 2) the idea of separation of powers (here between state and Church).

  • I would suspect that the modern legal system provides a structure in which human rights can be protected.  Within the Church, with the development of canon law in the 12th century, our modern legal system began to take shape. 

    • A part of this development included introducing certain concepts of equality between men and women – for instance, a valid marriage required the free consent of both the male and the female and both could be punished for adultery.
    • Quoting Kenneth Pennington, Woods says “by 1300, European jurists ‘had developed a sturdy language of rights derived from natural law.  During the period from 1150 to 1300, they defined the rights of property, self-defense, non-Christians, marriage, and procedure as being rooted in natural, not positive, law.  By placing these rights squarely within the framework of natural law, the jurists could and did argue that these rights could not be taken away by human prince.’”

  • I would suspect that the university, with its commitment to learning, debate, reasoning, and inquiry, is a vital albeit indirect necessity for the development of universal human rights (and much else we hold dear today).  Universities grew out of the cathedral schools.  Woods says that “[e]ighty-one universities had been established by the time of the Reformation.”  53 of these had a papal charter.

  • Spanish conquest of the New World and the mistreatment of the native population led to great debate among theologians, philosophers, and others about the status of the native populations individually and as peoples, leading to de las Casas “Defense of the Indians” among other arguments for the humanity and dignity of that population. 

  • The emergence of international law and the rights of all grew out of or were deepened by these debates occasioned by the mistreatment of natives of the New World.  Vitoria, de Molina, and Domingo de Soto played important roles in developing this thinking.  Woods quotes de Soto:  “Those who are in the grace of God are not a whit better off than the sinner or the pagan in what concerns natural rights.”

This is just a taste of the development of human rights prior to the Enlightenment.  MOJ reader, Jonathan Watson, has suggested that those interested in further study look to “the scholarship of Kenneth Pennington, here - his website is a collection of very valuable thoughts / materials regarding human rights and procedural norms from the Middle Ages and Christendom - this and this might be good starting points” and to “Stephan Kuttner, Mario Bellomo, Brian Tierney, Charles Donahue, and Richard Helmholz.”  And, there is also Charles Reid at St. Thomas in Minnesota.

The idea of universal human rights did not appear out of no-where and into the heads of the Enlightenment intellectuals.  It was by and large an outgrowth of Judaic-Christian theology and philosophy.

A large question remains.  If the idea of human rights grew out of the church then why have Christians (and others) had such a bad track in recognizing and granting these rights?  The theological answer is “original sin.”  Our reason is fallible and this truth of “love your neighbor as yourself” has to be thought through and debated as new situations (the New World for instance) stretch our imagination.  And, our reason is often sacrificed at the altar of the passions.  We know what is right but our self-interest prevents us from doing what is right.  In speaking of slavery, Thomas Jefferson said, “I shudder to think God just.”  In other words, Jefferson knew slavery was wrong but he couldn’t bring himself to free his own slaves in his lifetime.

August 25, 2007 in Scaperlanda, Mike | Permalink | TrackBack (0)

The Foundation of Human Rights

Before returning to Rob’s response to Jack Balkin, I want to return to an earlier part of this thread.  (Rick has linked to the relevant posts).  I agree with Brian Tamanaha that it is the existence of God not one’s belief in God that supports the theists claim that his foundation for human rights is stronger than the atheist’s foundation.  If God is a mere figment of the imagination – a delusion – then the theist’s foundation for human rights collapses for two reasons. First, the reasons the theist gave for human rights would be false.  Second, if there is no God – if there is no design or purpose to the world or human life – then the theist and the non-theist are on similar footing facing the fact that all human rights regimes are merely human creations, none very sturdy because as a mere human creation it has no power to bind anyone else.

But, if God exists (or at least a particular type of God exists), then the theist has a sturdier foundation for human rights because God, as the Author of life, supplies external criteria from which we can perceive the inherent dignity of the human creature and begin to build a human rights regime fitting that creature.  Both special revelation (the Bible) and general revelation (through the natural law) – both faith and reason – can form, independently and together, the building blocks for human rights.  Since the inherent dignity of the human person is knowable by reason apart from special revelation even those who do no believe in God but who are open to the mystery of life and are not avowed materialists can subscribe to this foundation for human rights.

Brian T. raises an important objection:  The existence of God cannot (or at least has not) be proven.  Here is my tentative response to this objection.  I would agree that the materialist, because he has faith in a purposeless “creation,” will not find the theistic foundation of human rights convincing.  But, only a small percentage of the population faithfully adhere to this creed.  The hypothesis that God exists is a reasonable one.  In fact the hypothesis that the Jewish and Christian God exists is a reasonable one.  And, the vast majority of the people of the United States believe that this hypothesis is true.

Despite the fact that God’s existence has not been scientifically proven (it can’t because this is beyond the realm of science) or philosophically proven beyond a shadow of a doubt, the theistic foundation can and does provide a sturdier foundation for human rights although the materialist will not see it this way.

I look forward to receiving your comments on this.

August 25, 2007 in Scaperlanda, Mike | Permalink | TrackBack (0)

Friday, August 24, 2007

Yet More on "The Politics of God"

Lilla's piece continues to provoke comment.  (Previsous MOJ posts:  here, here, and here.)

This, today, from dotCommonweal, is certainly worth reading:  here.

August 24, 2007 in Perry, Michael | Permalink | TrackBack (0)

The Death Penalty

The Pontifical Council for the Evangelization of Peoples has issued a "dossier" on the The Death Penalty.  (Go to this post, at Vox Nova, for a link to the dossier.)  The dossier (I'm quoting the VN post) "describes the various faces of capital punishment around the world, reports which nations have abolitioned its use and which maintain it, and sketches the manner in which the Church understands that biblical and historical teachings on the death penalty require the element of practical states of affairs in evaluating the moral licitness of administering the death penalty."  FYI.

The Dossier ends with this quote from the USCCB: 

When the state in our names and with our taxes ends a human life despite having non lethal alternatives it suggests that society can overcome violence with violence. The use of the death penalty ought to be abandoned not only for what it does to those who are executed but for what it does to all of society”.

Both of these sentences are interesting.  I understand that the imposition of capital punishment could suggest, and could be taken to mean, that "society can overcome violence with violence."  It could also mean, though -- and, in my view, punishment ought to mean -- not so much that the punishment "overcome[s]" the crime, but that it expresses a moral judgment about the crime, thereby vindicating both the moral order and the dignity of the victim.  The question, it seems to me, is not whether the death penalty ("violence") "overcome[s]" homicide, but whether the death penalty is, or can be, the right vehicle for expressing the moral judgement that a just society should express in response to serious crime.

August 24, 2007 in Garnett, Rick | Permalink | TrackBack (0)

Not desiring, but still intending

Regarding Mother Teresa's dark night half-century of the soul, a reader kindly reminded me of this great quote from C.S. Lewis's The Screwtape Letters.  As Screwtape wrote to Wormwood,

"Our cause is never more in danger than when a human, no longer desiring, but still intending, to do our Enemy's will, looks round upon a universe from which every trace of him seems to have vanished, and asks why he has been forsaken, and still obeys."

August 24, 2007 in Vischer, Rob | Permalink | TrackBack (0)