Mirror of Justice

If you live in Utah . . .

. . . go vote on Tuesday for school choice (and social justice, and religious freedom, and common sense, . . . ).  If you live near Utah, move there, enjoy the best skiing in the world, and vote for school choice, one of the relatively few issues about which "there can be no debate."

Immigration Policy and Catholic Social Teaching

MOJ readers in the New York area will be interested in a program entitiled: Immigration Policy and Catholic Social Teaching: Can We Work it Out?, to be held on Tuesday, November 13, at The Church of St. Ignatius Loyola.  The program is being co-sponsored by the Church of St. Ignatius Loyola and the Woodstock Theological Center at Georgetown University, and will explore the question of "[h]ow do we link our Catholic Faith with its venerable tradition of social teachings to the challenges that the immigration debate in our country poses for us."  The co-hosts for the program are Gerald R. Blasczcak, S.J., Pastor of St. Ignatius Loyola and Gasper F. Lo Biondo, S.J., Director of the Woodstock Theological Center, and the panelists are Donald Kerwin, Director of Catholic Legal Immigrant Network, Inc. of the USCCB and Carmen Maquilon, Program Director at Catholic Charities Immigrant Services, Diocese of Rockville Center.  The program, which begins at 7:30 p.m. will be held in Wallace Hall at the Church of St. Ignatius Loyola, 980 Park Avenue (between East 83 and 84 Street), New York, New York.

More on Immorality vs. Illegality

In response to my post re-raising Eduardo's questions on the Church's teachings on the legality of abortion and certain abortion-practices, MOJ friend John Breen wrote to me about two recent articles of his that will soon be available on SSRN: John Paul II, the Structure of Sin and the Limits of Law (forthcoming in the St. Louis University Law Journal) and Modesty and Moralism: Justice, Prudence and Abotion - A Reply to Skeel and Stuntz (forthcoming in the Harvard Journal of Law and Publis Policy).  He writes:

"In the latter half of the first piece, I address the historical record regarding the incidence of abortion prior to the state reform efforts in the late 1960s and early 1970s and Roe. Without settling on a definitive number, the available empirical evidence effectively refutes the claims of those who maintain that legalization had no effect on the frequency of the procedure. Indeed, Planned Parenthood's own numbers show that both the abortion ratio (the number of abortions per 100 known pregnancies in a given year) and the abortion rate (the number of women per 1000 between 15-44 years of age having an abortion in a given year) steadily climbed in the years following Roe, and that the actual number of abortions per year likewise steadily increased following Roe, surpassing even the exaggerated estimates of annual abortions prior to Roe advanced by abortion advocates.

"In the second piece I restate some of this critique. Beyond this, however, I also argue against those (including many Catholic commentators) opposed to any use of criminal sanctions in the regulation of abortion. Those who argue for a "culture first" approach also frequently advocate for the use of law in its non-coercive dimension, for a greater allocation of resources directed toward women with unexpected and unwanted pregnancies. Although I support such measures because solidarity demands that we support such women and their children (both born and unborn) I also show that it is unlikely that greater financial resources will have little effect on the incidence of abortion. A comparison of abortion rates and ratios in other developed countries (such as Sweden, Canada, England, and France) that have far more elaborate social service networks, strongly suggests that such measures will have only a marginal effect. Instead, I argue for a multi-faceted approach in which culture and law (including both the criminal law and law in its non-coercive dimensions) are employed in support of unborn human life and pregnant women and mothers.

"As for Eduardo' hypothetical, if true - if law has no effect on the frequency of the practice - it would, I dare say, be the first instance of that in the history of jurisprudence.  Indeed, even the much maligned legal apparatus known as Prohibition was (as modern scholarship conrfirms) was successful in that it significantsly reduced the amount of alcohol consumed by Americans by upwards of 40 percent.  of couse this raises a host of prudential questions: Would a reduced incidence of abortion be worthwhile even though absolute compliance with the law would not be achieved? Accordingly, I take up the subject of prudence and its relationship to justice at length in the second piece."

The New Atheists

Theodore Dalrymple, an atheist himself, has a great review of the recent flood of angry-about-religion books that have been discussed here on MoJ and elsewhere.  An excerpt:

Lying not far beneath the surface of all the neo-atheist books is the kind of historiography that many of us adopted in our hormone-disturbed adolescence, furious at the discovery that our parents sometimes told lies and violated their own precepts and rules. It can be summed up in Christopher Hitchens’s drumbeat in God Is Not Great: “Religion spoils everything.”

What? The Saint Matthew Passion? The Cathedral of Chartres? The emblematic religious person in these books seems to be a Glasgow Airport bomber—a type unrepresentative of Muslims, let alone communicants of the poor old Church of England. It is surely not news, except to someone so ignorant that he probably wouldn’t be interested in these books in the first place, that religious conflict has often been murderous and that religious people have committed hideous atrocities. But so have secularists and atheists, and though they have had less time to prove their mettle in this area, they have proved it amply. If religious belief is not synonymous with good behavior, neither is absence of belief, to put it mildly.

In fact, one can write the history of anything as a chronicle of crime and folly. Science and technology spoil everything: without trains and IG Farben, no Auschwitz; without transistor radios and mass-produced machetes, no Rwandan genocide. First you decide what you hate, and then you gather evidence for its hatefulness. Since man is a fallen creature (I use the term metaphorically rather than in its religious sense), there is always much to find.

The thinness of the new atheism is evident in its approach to our civilization, which until recently was religious to its core. To regret religion is, in fact, to regret our civilization and its monuments, its achievements, and its legacy. And in my own view, the absence of religious faith, provided that such faith is not murderously intolerant, can have a deleterious effect upon human character and personality. If you empty the world of purpose, make it one of brute fact alone, you empty it (for many people, at any rate) of reasons for gratitude, and a sense of gratitude is necessary for both happiness and decency. For what can soon, and all too easily, replace gratitude is a sense of entitlement. Without gratitude, it is hard to appreciate, or be satisfied with, what you have: and life will become an existential shopping spree that no product satisfies. 

Benedict on Pharmacists

As I've written elsewhere, I'm skeptical about whether a pharmacist should be legally empowered to invoke a right of conscience against her employer.  I fear that such a right might short-circuit the possibility of a moral marketplace and the potential for pharmacies to operate as a sort of mediating structure.  The marketplace approach has plenty of critics, of course, and I welcome the challenges they present, though I'm given pause by the fact that the critics now apparently include Pope Benedict.

(Im)morality versus (il)legality and the Law (of abortion)

Both Susan and Eduardo have raised an interesting and important issue involving the questions surrounding the Guttmacher-WHO study and its bearing on the law and law-making. I am grateful to them for their calling attention to this subject. Before I get into the substance of this posting, I think it important to remember that the Guttmacher Institute was founded by Alan F. Guttmacher, a former president of the Planned Parenthood Federation of American and a leader in the International Planned Parenthood Federation. He subsequently founded the Institute named after him in 1968 to provide research, policy analysis and education in the areas of “reproductive health, reproductive rights and population.” The Institute, PPF and the IPPF all have horses in the legal races involving “reproductive health, reproductive rights and population.” It is conceivable, so to speak, that the Institute would have more than a passing interest in laws dealing with abortion and related matters in the US and abroad.

Now, let me come to Susan’s point, and I believe that made earlier by Eduardo, about law-making that would criminalize abortion “but not reduce the incidence of abortion, but only make abortions more dangerous”; for them, this raises the “connection between views on morality and views on legality.” Both Susan and Eduardo have properly put their queries in the context of Catholic legal theory.

Here is the approach of one Catholic legal theorist (if I may call myself such):

Let us first begin by considering the duties of the law-maker (for us in the US, this means state legislatures, Congress, judges, and administrative agencies) that relate to abortion. The law-maker can make a law that criminalizes abortion, legalizes abortion, or regulates abortion. The law-maker may say nothing about morality in positing the law (statute, judicial decision, or regulation) made on the subject.

Moreover, the law-maker may be urged to conclude by the lobbyist or the litigant that the law made must be divorced from moral considerations. This argument has run a thread throughout jurisprudential debate for some time. Two examples would be the Hart-Fuller debates and the disagreements between the Kelsen school and the Rommen/Voeglin schools. Yet, when all is said and done, there frequently are discussions about morality and its nexus with the law and law-making when debates about tax laws, labor laws, education laws, environmental laws, and criminal laws (just to mention a few) occur. The Guttmacher Institute mentions, by the way, on its website that it executes its mission, in part, by “testifying before federal and state legislative bodies and in court cases.” Well, this is participating in the law-making process, and we can readily see what their aspirations are for law-making outcomes regarding abortion and where moral considerations don’t fit into the process.

And what about Catholic legal theory? There is nothing wrong or unusual with introducing moral considerations into debates that occur when law is being made. But, for the Catholic legal theorist I think this would be not only expected but would be compulsory. Moreover, I am confident that Catholic legal theory would have much to offer the law-maker who is positing law addressing the legality or regulation of abortion. And what might this be?

The moral considerations underpinning Catholic legal theory would enable the law-maker to consider more or all rather than some of the issues that must inevitably intersect abortion laws. Today so much of the law in this country pertaining to abortion permits abortion—with few restrictions—and bases the justification on Constitutional requirement (which I submit results from an erroneous interpretation in the Roe progeny), the argument from privacy, and, more recently, the argument from equality. The focus of abortion law seems to be on the welfare of the mother only. This becomes patent when judges, state and Federal, scrutinize legislation and regulation looking for the “essential” health exception clause to protect the mother only.

Catholic legal theory, in contrast, begins to look at other welfares, too. The mother’s health and welfare are surely important; but so is the health and welfare of the child whose life will be snuffed out should the abortion proceed. But it is also vital to recognize that the mother has other issues that are often ignored or dismissed as long as she can be allowed to terminate her pregnancy. What might these issues be? Well, informed consent is a place to start. Does she really know what is about to happen? Does she really understand what is inside her womb? Would she want to have an abortion if she could see her child? (Ultrasound imaging would provide her with this critical information.) Has she been provided with education about effective parenting skills? Is pre and post-natal care available for her and her child to ensure good health for both? Catholic legal theory would also provide for the welfare of the father? Where is he? Should provision not also be made for encouraging his responsibility for the life he helped promote by developing among other things his parenting skills? It seems that the law-maker is not restrained from including these provisions relating to these matters as well. Cannot the law-maker provide for orphanages, foster care, and adoption services for children whose birth parents will not or cannot properly care for the raising of the child?

Indeed, the law-maker can provide for all these things and more.

But the critic may well argue that the additional elements will cost money. The Catholic legal theorist can respond by reminding the critic that laws addressing defense, environment safeguards, historical preservation, criminal justice, wildlife protection, etc. (all of which have moral considerations) also cost money. But in spite of their cost, laws are made to advance these interests and protections. Why can the law not do the same to preserve young human life and the lives of those responsible for its conception? This is the response of one Catholic legal theorist.   RJA sj

Abortion and Hypotheticals

MOJ reader, Josiah Neele, e-mailed me in response to my post about Eduardo's questions to express the view that Eduardo's hypotherical questions lack practical relevance because, "[c]ontrary to the Guttmacher-WHO study, legalizing abortion does increase the number of abortions performed."  He writes:

"Granted, working through the implications of a hypothetical situation can be useful even if you konw the situation does not obtain.  But not always.  Justinian, apparently, thought that homosexuality caused earthquakes.  No doubt if homosexuality did cause earthquakes, this would have some serious public policy implications.  But is it really worth taking the time and effort to figure out what those implications might be?  I think not.  the same goes, I think, for Prof. Penalaver's questions."

Implicit in my prior post is the conviction that addressing Eduardo's "if" question is a worthwhile expenditure of time given the centrality of the question of the relationship between morality and law to our collective effort to articulate a Catholic legal theory.  But Josiah's e-mail prompts me to wonder whether others view the question as a hypothetical not worth pursuing in the absence of more clarity regarding what the data shows. 

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Poverty and Human Development

The Council of Science Editors organized a "Global theme Issue on Poverty and Human Development" in order to encourage research on the subject and to disseminate that research to the widest possible audience.  Science journals were invited to simultaneously publish articles on poverty and human development on October 22, 2007.  The result was 750 articles published in 235 science journals from 37 countires on a broad range of topics relating to the impact of poverty on health, the challenges of porviding adequate medical care to the poor, and the ability of various health initiatives to reduce poverty.  MOJ readers engaged in analyses of poverty and health will want to check out the Council's website (here), which describes the project and contains a partial list of the articles published.  The Council has urged the journals to make the global theme published articles available to the public for free; some can be accessed online from the Council's website. 

Immorality vs. Illegality of Abortion

A couple of weeks ago, Eduardo raised some questions prompted by the Guttmacher-WHO study on abortion.  He asked whether if making abortion illegal would not reduce the incidence of abortion, but only make abortions more dangerous, would that give cause to rethink, not the  morality of abortion, but the connection between views on morality and views on legality.  More broadly, he asked whether Catholic legal theory requires a particular legal conclusion regarding the morality of certain abortion practices, divorced from a consideration of the effects of whatever action it is concluded must be taken.

I don't know if Eduardo has received any private responses to his inquiries, but I have been disappointed not to see anyone publicly (at least here) take a stab at these questions, which I think are important and difficult ones.  The question of the (im)morality of abortion is an easy one.  But the question the law ought to do in the face of that immorality raises a host of prudential considerations.  I think if we are going to advance the debate on abortion in a meaningful way, we need to give greater consideration to questions such as those raised by Eduardo.   

Friendship: Quests for Character, Community, and Truth

This past weekend, I had the pleasure of attending an interdisciplinary conference at

Baylor

University

entitled Friendship: Quests for Character, Community, and Truth, which was organized by the Baylor’s Institute for Faith and Learning.

The developing friendship and dialogue between Catholics and Protestants was everywhere present.  The panel I chaired included a paper by Paul Martens (a philosopher and a Protestant) entitled “Friendship, Preference, and Protestant Paranoia:  Or Why is Agape Insufficient.”  This paper was placed on dialogue with a paper presented by Cynthia Nielsen entitled “A Glimpse at Christocentric Friendship in the Heartbeat of Hans Urs von Balthasar,” allowing for a working through of some of the differences between a Lutheran and Catholic view of love and friendship, universals and particulars.  These differences were brought into bold relief by Shawn Floyd in a paper in which he explored the difference between God’s love for all and his preferential friendship for some who in a sense merit friendship by their response to His grace.  It is a testament to the conference organizers that this panel (as well as so many others) worked so well together.

The “law” contribution came from a Scaperlanda but not me.  Chris Scaperlanda, a 2L at the

Univ.

of

Texas

(yes, I am the proud papa), presented a paper entitled “Law and Friendship:  Toward Virtue and the Common Good.”  His friend, Yale Divinity Master’s student, Andrew Litschi, was on the same panel with his paper:  “The Privatization of Friendship within Modern America.”  Both did an excellent job, and if I get their paper abstracts, I’ll post them later.

There were many great papers, and I will just mention one more before turning my attention to the keynote speakers.  Patricia Murphy, St. Augustine Seminary of

Toronto

gave a very thoughtful and thought provoking talk on Acedia or sloth.  In today’s world, the vice of sloth is often thought of as laziness (a sort of resting).  We value “doing” over resting.  Murphy argues that things were very different for Aquinas.  Resting in God’s friendship was highly valued and the vice of acedia was a sort of restlessness or flight from His friendship.

The two keynote speakers were Robert Putnam and Paul Griffiths.  I arrived too late on Thursday to hear Putnam, author of “Bowling Alone” give his lecture on “Faith and Friendship:  Initial Findings from a New National Survey.”  Those who were in attendance, considered it excellent and thought provoking.

Paul Griffith’s well received lecture was entitled “Befriending the Religious Other:  Why Love is Easier than Friendship.”  Although often difficult in practice, Jesus’ command to love is universal, extending to all human beings.  Friendship is different.  We are not called to be friends with every human being on the planet.  Time, language, and geography, to name just three obstacles, limit our capacity for friendship.  And, while differences can enhance, sharpen, and give life to friendship, extreme differences between individuals can serve as obstacles to friendship.  For the Christian, any person who does not share the view that Jesus is the pivotal figure in history and that Jesus’ birth, life, death, and resurrection was the pivotal moment in history is a religious “other.”  From the Christian perspective, Griffiths suggested that the religious “other” could be subdivided into Jews, Muslims, what he calls pious pagans (Hindus, Buddhists and, others), and secular pagans (those who don’t ask and seem disinterested in ultimate questions).

Griffiths

described some of the obstacles to befriending the religious “other,” suggesting that the commonalities in the three monotheistic religions make it easier for the Christian to overcome the obstacles to friendship with our Jewish and Muslim brothers and sisters.  The greatest obstacles, he suggests, are situated between the Christian (and other religious persons) and the non-religious person –the secular pagan- because the worldview of (and even the questions asked by) each are so fundamentally and at the core different.  There was much more to this provocative paper, and if I get an abstract, I will post it so that Paul can put it in his own words.