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.

Sunday, January 6, 2008

Philip Bess responds to Greg Sisk (read this!)

MOJ-friend Philip Bess sends in the following, in response to Greg's recent post, and as part of our ongoing conversation on suburbs, growth, and the like (Greg?  Others?):

My thanks to Greg Sisk for his kind words and thoughtful response to 
my reflections upon urban design and natural law; and also to my 
friend and colleague Rick Garnett for originally bringing these 
reflections to Professor Sisk's attention. . . . 

By way of explanation at the outset, I should mention 
that the monograph link that Rick provided to Professor Sisk was a 
draft that underwent subsequent development prior to its eventual 
publication last year in my book Till We Have Built Jerusalem.  The 
argument published there is essentially the same as the one to which 
Professor Sisk was responding, except that the key proposition / 
hypothesis that in the former draft was stated as "Human beings 
should make settlements in accordance with the Urban Transect" (and 
that was stated this way in the link Rick provided to MOJ), was 
restated in the published essay as "Human beings should make mixed-
use walkable settlements."  I reformulated the proposition primarily 
because the newer phrasing is a simpler way to state the general 
principle, but also because there seems to be a great deal of 
controversy and confusion among lay people about the nature of and 
the claims to be made for the idea of the Rural-to-Urban Transect.   
Better therefore, I have come to think, not to confuse matters at the 
outset by focusing upon the Transect per se as a possible natural law 
precept, and instead to use the simpler revised formulation.

For a more recent and extensively illustrated on-line discussion of 
these ideas, see my June 2007 contributions to the late lamented blog 
"Right Reason" here.

Professors Sisk's objections notwithstanding, I stand by my 
contention that human beings should make mixed-use walkable 
settlements, for all the reasons I have stated in my essay. 
Unfortunately, Professor Sisk doesn't really engage any of these 
reasons, in particular my critique of post-WWII sprawl and its 
(perhaps) unintended consequences as unjust and unsustainable.  But 
let me respond briefly to several of Professor Sisk's specific 
objections.

1)  "I was not convinced...that all persons of a well-formed Catholic 
conscience are required to bow before the 'Urban Transect' as an 
infallible moral proposition."

Fair enough; but this is a mis-characterization of what I was hoping 
to accomplish in my essay.  However, since Professor Sisk is not the 
only reader who has reacted in this way, I will simply state here 
that it has never been my contention that making walkable towns and 
neighborhoods is as evident a natural law imperative as, say, the 
admonition not to harm the innocent or the admonition to love one's 
neighbor.  Rather, the idea that walkable mixed-use settlements are a 
moral imperative because they satisfy a genuine human need is one 
that for most moderns requires some extended reflection upon and 
observation of such settlements.  And this is because the idea that 
there might be a moral imperative to make walkable mixed-use 
settlements---like the relatively recent historic articulation of 
subsidiarity as a natural law imperative---is an idea that simply 
never occurred to anyone until human beings in the modern era began 
to make human settlements differently, with less than happy 
consequences.  Nevertheless, tone is important; and if what I have 
written suggests I am imagining myself more like Amos or Jeremiah or 
even Pius IX than a poor student of Socrates and Aristotle, I'll try 
to work on that.

2)  "Professor Bess overstates the virtues of high demographic 
density, while neglecting the potential underside of the union of all 
dimensions of human life in a single geographic setting."

Professor Sisk makes an unwarranted leap in logic common to many 
critics of New Urbanism, presuming that New Urbanists are saying 
things that in fact we do not say.  I do happen to think that, to a 
certain point, density has its virtues; but I don't recall stating---
let alone over-stating---such in my essay.  But here I must make two 
important points I cannot state strongly enough:  First, the whole 
idea of the Rural-to-Urban Transect, and particularly the Urban T-
Zones 3 and 4, is precisely to acknowledge the variety and validity 
of walkable mixed-use settlement patterns of demographic densities 
low and high.  Specifically, Professor Sisk errs in suggesting that 
the Transect does not include and will not permit single-family 
dwellings with yards.  (Typical Transect diagrams themselves 
illustrate this point, and deserve a closer look.)  Second, it simply 
does not follow that because New Urbanists think it good that towns 
and city neighborhoods contain within themselves and in pedestrian 
proximity the most important daily activities of human beings, that 
therefore New Urbanists advocate---or even expect---that everyone who 
lives in such a town or neighborhood will or should spend all of his 
or her time only in their town or neighborhood.  I too value human 
freedom (including easy mobility); and when I argue that human beings 
should make walkable mixed-use settlements I am not thereby proposing 
to tell individual human beings how they have to live their lives, 
except insofar as all of our lives are constrained by the demands of 
justice (however difficult it is to achieve proximate justice in any 
human setting at any time).

3)  "[T]he 'mixed-use walkable settlement' strikes me as one viable 
option out of many...."

This is an apparently (classic) liberal thought that, for all its 
good intentions, upon closer examination is really not so liberal a 
thought.  For one thing, it is not legal in most parts of the United 
States to build mixed-use walkable settlements as-of-right.  Mixed-
use walkable settlements typically require special and time-consuming 
Planned Unit Development permit processes that are an economic 
disincentive to their creation.  (Far from trying to impose 
traditional towns and neighborhoods upon the world, many if not most 
New Urbanists would be more than happy simply to have a legal level 
playing field, and to let the market decide if traditional urbanism 
has a future.)  Furthermore, in terms of justice, there really is no 
moral equivalence between a walkable mixed-use environment where it 
is convenient and safe to drive, and a single-use suburban 
environment where it is inconvenient and dangerous to walk.  Setting 
aside post-1945 suburbia's aesthetic, environmental and cultural 
sustainability issues---the latter of which is belied by the 
pervasive phenomenon of suburban NIMBYism---the physical form of 
post-1945 suburbia is "viable" only if one has access to a car.   
However, if one is too old or too young or too infirm or too poor to 
drive, post-1945 suburbia manifestly is not "viable."

4)  "Professor Bess's vision. . .is too narrow to be realistic and 
is largely incompatible with the modern world.  [He] takes a 
historically-contingent demographic pattern dating to ancient times 
and anachronistically drops it into the modern world of dynamic 
economic and social arrangements....  The "walkable settlement" 
emerged in primitive times, in which by necessity the average person 
was born, lived, married, worked, reproduced, and died within a few 
square miles. . . . The high density mixed-use walkable 
settlement of the primitive and medieval worlds was one of social 
and economic stagnation....  Human progress has not been measured by 
how small is the span within which one can walk from hearth to 
workplace....  The economic opportunities created by this market 
specialization, with its diversification of production and geographic 
locations, are manifold and multifold, including allowing more 
people than in prior generations to be devoted to such academic 
pursuits as writing about natural law and land-use planning."

I find this to be Professor Sisk's most interesting and substantive 
objection.  My argument is that human beings should make walkable 
mixed-use settlements because such settlements are in accordance with 
the social and embodied nature of human beings, and will help us to 
flourish.  Professor Sisk's counter-argument, that walkable human 
settlements are "a historically-contingent demographic pattern," 
suggests that he thinks one of two things:  either 1) that 
modernity---no; more precisely, post-1945 sprawl patterns of human 
settlement---has in some fundamental way changed our social and 
embodied human nature for the better; or 2) that human nature and 
human flourishing are not in some essential way related to our 
bodies.  But again, let us suppose (though not too cavalierly) that 
mechanical means of transport are genuine goods, are not a fleeting 
("historically contingent?") aberration, and will be with us for the 
long term.  Why would it still not be good to make walkable mixed-use 
settlements in which bicycles and cars and trains and airplanes are 
conveniences that *supplement* walking, rather than to make single-
use settlements that require mechanical means of transport for every 
one of life's everyday activities?  Furthermore, what is 
"anachronistic"---not least economically---about beautiful low-rise 
mixed-use walkable towns like Savannah and Santa Barbara and 
Cooperstown and Galena; and great low-rise city neighborhoods like 
Boston's Beacon Hill, North End and Back Bay, or Chicago's Lincoln 
Park (where real estate prices alone indicate their economic value)?   
As to the alleged economic and cultural stagnation of pre-modern 
walkable cities:  Are we talking about Bruges?  Venice?  Florence? . . .

Economic cycles come and go, and even these 
aforementioned places have had economic downturns.  But one point of 
building beautiful and durable mixed-use walkable places is that such 
places are able to endure physically through shifting economic 
cycles; they may not be good neighborhoods now, but they have the 
potential to be renewed.  In contrast, we can all be certain that the 
poorly built subdivisions and shopping malls of suburban sprawl have 
no long term economic value.  This being the case, one question to 
consider is this:  Are the choices and consumer goods afforded by the 
modern economy worth the price of a culture in which permanent things 
either have no value or are unable to be represented and embodied in 
a durable public realm of buildings and spaces?  Finally, regarding 
the goodness of the modern economy that allows me to be a professor 
instead of a farmer: I am not ungrateful for this.  Nevertheless, 
questions remain about whether the modern economy is just and 
sustainable; and also about what we lose even if it is.  One of the 
questions some of us ask ourselves in the graduate program at the 
Notre Dame School of Architecture is whether the modern economy 
necessarily precludes built environments that are durable and 
beautiful; and if so, whether the modern economy is worth it, and 
whether there are alternatives.

5)  "Professor Bess mistakenly translates a contested preference for 
a certain approach to community development into an absolute moral 
precept. In general, I am skeptical of any argument that presents a 
position on a political or social issue, not merely as an attempt to 
persuade others that the author's vision is attractive or at least 
preferable to others, but as an absolute moral principle to which 
fealty is demanded by all persons of good conscience. I simply do not 
accept that the Sierra Club's political platform for land use 
planning is grounded upon an infallible moral principle to which I as 
a Catholic must pledge allegiance, akin to my faithful acceptance of 
the the Immaculate Conception."

I hope that my response to point #1 above makes clear that my intent 
is not to demand but rather to persuade; and that my argument itself 
explains---if not to all convincingly---why contemporary patterns of 
human settlement deserve more attention both from moral philosophers 
and from all persons of good will than they generally tend to 
receive.  I must also gently reject the identification of my argument 
with those of the Sierra Club.

6)  "[A]t the right stage in my life, I may again move to an urban 
setting that includes the advantages of community that the New 
Urbanism advocates. But I make no pledge to do so. Instead, I cherish 
the freedom to make the choice that is right for us when the time 
comes and defend that same freedom for others. On this subject, as 
on others, I strongly believe that a conception of Catholic Social 
Thought that does not leave ample room for liberty is hollow, fails 
to connect with the inherent dignity of the human person, and will 
not resonate with the faithful."

I hear a hint that Jerusalem really is the object of Professor Sisk's 
desire!  If so, I would simply encourage him to consider that the 
walkable mixed-use forms of traditional towns and city neighborhoods 
advocated by New Urbanists are not necessarily so lacking in personal 
freedom and economic vitality as he insists---and that maybe they're 
even good for children!  (Speaking anecdotally---my anecdote not to 
be mistaken for an argument---the best thing my wife and I have ever 
done together was to raise our three children in the same walkable 
mixed-use Chicago neighborhood.)  One of the many appeals of the 
tradition of Catholic Social Thought is that it does recognize a 
plethora of goods that often exist in tension, and attempts to order 
them with respect to the good for the human person over the course of 
a whole life and from generation to generation to eternity.  Liberty 
is one of those goods; but so too are solidarity and the ethic of 
stewardship.  It is because these goods are sometimes in tension, and 
also both to respect the inherent dignity of the human person and to 
"resonate with the faithful," that I have tried to present arguments 
for why making mixed-use walkable settlements---of varying 
densities---is a genuine human good, and why post-war patterns of 
single-use zones of suburban development are not.  It is not because 
the suburban ideal does not promise some genuine goods; it is rather 
because, by virtue of its appeal to a too narrow individualist / 
consumerist notion of human well-being and the unjust consequences of 
its physical and social form, the post-war suburb cannot ultimately 
deliver those goods, at least not equitably.  People sometimes do 
move to suburbia reluctantly, often for the sake of their children's 
education; and as a general rule, parents should indeed be free to do 
what they must with respect to the well-being of their families.   
Nevertheless, it is a mistake to idealize the expedient.  The long 
testimony of western culture---of both Athens and Jerusalem---is that 
human beings are made to live and do flourish in cities.  Part of my 
purpose is to simply ask the faithful to reconsider that long 
testimony in light of our recent voluntary and not-so-voluntary 
post-1945 suburban exile.  I am not without gratitude for the 
present, nor without hope for the future; but I am less disposed than 
Professor Sisk to view post-war patterns of human settlement and the 
"choices" they represent as the apex of cultural achievement, or even 
a sign of human progress, let alone as our necessary destiny.

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