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.

Tuesday, April 27, 2010

"Morality, Rationality, and Natural Law"

Public Discourse today published a short essay of mine entitled "Morality, Rationality, and Natural Law."  It is a slightly expanded version of a contribution I made to a Templeton Foundation symposium on the question: "Does Morality Depend on Reasoning?"  The editors of Public Discourse added a headnote that simply says:  "We should prefer natural law thinking to utilitarianism---here's why."  That's not a bad summary of what I seek to show.  Here's my opening paragraph:

If moral norms, including those prohibiting such evils as murder, rape, torture, enslavement, and genocide, are what they purport to be—namely, principles for guiding human choices and actions—then there must be a point to abiding by them; they must have some rational basis. Do they? What could provide such a point and basis?

Here's a link to the essay:  http://www.thepublicdiscourse.com/2010/04/1273

April 27, 2010 | Permalink | TrackBack (0)

David Forte on Hadley Arkes

A Ministry to Those Who Reason


by David Forte of Cleveland State University School of Law


Reason and truth brought Hadley Arkes to the Church.  And the Church has brought him to Christ.  On Saturday last, April 24, Hadley received the Sacraments of Initiation.   In the presence of other great persons who have made the journey, Hadley Arkes completed one pilgrimage, and began another.  On that day, I believe, the angels sang, and St. Thomas laughed with joy.


Hadley Arkes has embraced the institution that has married faith and reason more intimately than any in human history.  The moment of his entrance into the Church brings into epiphany what Professor Arkes has been spending all of his life doing: ministering to those who reason.  He has never entered a debate to debate, much less to “win.”  Rather, he prepares for contests by seeking to understand, and he enters the lists seeking to persuade. 


At the celebratory reception following the baptism, Hadley generously asked me, among other friends, to say a few words, and I noted that the Lord too ministered to those who reason.  Many see Christ’s debates with the Pharisees as moments of rhetorical triumph for him.  But I aver that Christ sought instead to persuade and convert.


Take the story, for example, of the woman taken in adultery as related in John’s gospel (8:2-11).  Whatever the debate over the provenance of the story, or of the biblical typology of “writing in the dust,” the existential moment was fraught with drama.  In what was clearly a preplanned maneuver, the scribes and the Pharisees interrupt Jesus’ teaching to the crowds by thrusting the accused woman before him and demanding whether he would affirm Moses’ teaching on stoning for adultery, even though all knew that no one could be put to death without Roman approval.  Christ was being asked to choose between Moses and Caesar.


But what the Pharisees conceived to be a debate became for Christ an opportunity for conversion.


Before reason can find its voice, the passions must be calmed.  Christ stoops down and writes something mysterious on the ground.  The gesture distracts and diffuses the emotions of the moment.  The question to him is repeated.  He then rises and chooses not between Moses and Caesar, but by reason looks to save the life of the woman and the souls of her accusers.  In a statement as universalizable as any moral philosopher could utter, He states, “Let him who is without sin among you be the first to throw a stone at her.” 


After the truth is spoken, it needs be considered and reflected upon.  Jesus stoops down again and continues writing,  Then the key moment arrives—the moment of choice, the moment of metanoia.  It is one thing for the mind to assent to a proposition.  It is another for the will to act upon it.  As John Paul II was reported to have told penitents as they were about to leave the confessional, “Now, go choose!”  Or as Abraham Lincoln understood, “As I would not be a slave, so I would not be a master.”  There is a difference between the mind saying that a particular woman is the one I should spend my life with and plighting one’s troth.


They—the scribes and the Pharisees—make their choice: “But when they heard it, they went away, one by one, beginning with the eldest.”  The one with the authority acts first.  He does not continue the argument.  He does not try to save face.  He chooses, humbly in fact, to affirm the dignity of the accused woman, for, under the Mosaic Law, without accusers, there is no crime.  He departs the scene, and the others follow, “one by one”—each individually changed—leaving the woman innocent under the law.  Christ has ministered to those who reason.


How unnumbered are Hadley Arkes’s students, and his other auditors and readers, who have assented to the reasoned truth he proffers and have likewise acted to affirm the dignity of human life.  How rich has been his ministry to those who reason.


For all of his adult life, Hadley Arkes has followed in the steps of the Master.  He now walks along side of Him.

April 27, 2010 | Permalink | TrackBack (0)

Mahoney, immigration, language

Like Eduardo and others -- including, apparently, Cardinal Mahoney -- I think the recently enacted Arizona law is misguided.  Rob asks about the appropriateness of Mahoney's language condemning the bill.  I have to admit (and, of course, this might reflect badly on me) that I thought the language was in-bounds.  This, in particular, seemed sensible to me:

What led the Arizona legislature to pass such a law is so obvious to all of us who have been working for federal comprehensive immigration reform: the present immigration system is completely incapable of balancing our nation's need for labor and the supply of that labor. We have built a huge wall along our southern border, and have posted in effect two signs next to each other. One reads, "No Trespassing," and the other reads "Help Wanted." The ill-conceived Arizona law does nothing to balance our labor needs.

A fair critique of the Arizona law can recognize, it seems to me, that the national government is failing badly at dealing with the problem of, and costs associated with, illegal immigration . . . and that people in states like Arizona are being forced to bear a disproportionate share of those costs.  And so I was glad that Mahoney did not, in a sweeping and unfair way, simply attack all of those who support the law as racists or nativists.  (I suppose I should say that this defense does not reflect any great respect for the way that Cardinal Mahoney has performed as a bishop.)

That said, I'll defer to Michael S., who (unlike me) actually knows, writes, and studies about immigration.

UPDATE:  Well, thinking more about it, and re-reading Mahoney's statement, I feel differently.  Rob's concerns ring true; the statement goes too far, with the Nazi and Soviet bits, I now think.  I'd delete my initial post, but that would be too easy, since it would hide my too-hasty initial reaction.

April 27, 2010 in Garnett, Rick | Permalink | TrackBack (0)

Arizona Immigration Law

[Cross posted at dotCommonweal] Cornell Clinical Law Professor and conservative blogger William Jacobson argues that the Az. immigration law is not racist and does not encourage racial profiling.  He says:

The law does not authorize unlawful stops, but only permits verification of immigration status once a lawful stop has been made (emphasis mine):

11-1051 B. For any lawful contact made by a law enforcement official or a law enforcement agency of this state of a law enforcement official or a law enforcement agency of a county, city, town or other political subdivision of this state where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation….

Of course, to say that the law “only permits verification … once a lawful stop has made” is true, as long as, by “permits,” you really mean “requires.”  (The law says that, once a reasonable suspicion arises, a reasonable attempt “shall be made” to determine immigration status.  And failure to comply with the law opens local law enforcement agencies up to citizen lawsuits.)

Moreover, Jacobson’s assurance that the “law does not authorize unlawful stops”  is only comforting if you ignore the breadth of the category of “lawful stops.”  It is perfectly lawful for a police officer to simply approach  you on the street or in the grocery store  or enter a bus you are riding and, for no apparent reason, engage you in conversation.  Once he does, anything you say or do that gives him “reasonable suspicion” that you are an illegal immigrant requires him to force you to show your proverbial “papers.”  And, once that occurs, if you can’t demonstrate with the documents you have on your person that you are a lawful immigrant, so much the worse for you, as this story seems to show.  No, a drivers’ license is not enough.

More importantly, neither the law (nor Jacobson) makes any effort to explain what exactly would constitute “reasonable suspicion” that a person is an illegal immigrant apart from (or at least not in addition to) phenotype and accent.  To argue that this law is not an open invitation to racial profiling of Latinos without offering an explanation of how else a reasonable suspicion of illegal immigration status might arise is not much of a defense at all.

April 27, 2010 | Permalink | TrackBack (0)

Cardinal Mahony on the Arizona immigration law

I believe that the new Arizona immigration law is a bad idea on several levels.  Cardinal Roger Mahony obviously agrees that it's a bad law, and I wonder about what others think about how he expressed his opposition to the law.  Start with this: Could a Catholic legislator vote in good conscience for the new Arizona immigration law?  If so, did Cardinal Mahony go too far in the language he used to condemn the law?  I'm interested in how we understand a bishop's responsibility to speak out on issues of concern to the Church, particularly on matters of prudential judgment.  If Catholics can disagree in good conscience about the extent to which the new law respects human dignity and the social order, and about whether it is a prudent exercise of state power, should a bishop's comments reflect that capacity for disagreement?  Or should a bishop feel empowered to speak just as forcefully and unequivocally on matters of prudential judgment as on matters of non-negotiable Church teaching?

April 27, 2010 in Vischer, Rob | Permalink | Comments (4) | TrackBack (0)

Newdow on Scalia on the Establishment Clause

Michael Newdow has posted his paper, Question for Justice Scalia: Does the Establishment Clause Permit the Disregard of Devout Catholics?  Here's (an excerpt of) the abstract:

In June 2005, Justice Antonin Scalia contended that 'the Establishment Clause...permits the disregard of devout atheists.' This statement is extraordinary inasmuch as it appears to reverse an inexorable (albeit, at times, wandering) trend toward true equality. . . . Finally, in Part III, Justice Scalia’s brand of analysis is applied to his own Catholicism. It is shown that the United States of America was born of a literal hatred for Catholics, which was pervasive and persistent. One may well conclude, therefore, that under his approach, the Establishment Clause permits the disregard of his own religion.

April 27, 2010 in Vischer, Rob | Permalink | Comments (5) | TrackBack (0)

Monday, April 26, 2010

Reading Amy Uelmen

A friend of mine, at the University of Chicago, passed on this helpful link, where many of our own Amy Uelmen's wonderful writings (and of others, who form a context for Amy's reflections) are collected.  Take the day off . . .

April 26, 2010 in Garnett, Rick | Permalink | TrackBack (0)

"The Permanent Scandal of the Vatican"

I thought that this essay, by Jody Bottum, captured well another sense in which "the Catholic Church" and "scandal" are connected:

The day the Antichrist is ripped from his papal throne, true religion will guide the world. Or perhaps it’s the day the last priest is gutted, and his entrails used to strangle the last king, as Voltaire demanded. Yes, that’s when we will see at last the reign of bright, clean, enlightened reason—the release of mankind from the shadows of medieval superstition. War will end. The proletariat will awaken from its opiate dream. The oppression of women will stop. And science at last will be free from the shackles of Rome. 

For almost 500 years now, Catholicism has been an available answer, a mystical key, to that deep, childish, and existentially compelling question: Why aren’t we there yet? Why is progress still unfinished? Why is promise still unfulfilled? Why aren’t we perfect? Why aren’t we changed? 

Despite our rejection of the past, the future still hasn’t arrived. Despite our advances, corruption continues. It needs an explanation. It requires a response. And in every modernizing movement—from Protestant Reformers to French Revolutionaries, Communists to Freudians, Temperance Leaguers and suffragettes to biotechnologists and science-fiction futurists—someone in despair eventually stumbles on the answer: We have been thwarted by the Catholic Church. . . .

 . . . There must be a reason for the unfulfilled promise of modern sex and modern life. There must be a mystical, magical key that will unlock the door to paradise. Why have we been thwarted? Why aren’t we there yet? 

The Catholic Church, of course. That’s the answer.

I'm reminded of the scene, in the film "Gladiator", when the (usurping) emperor, Commodus, says to Maximus ("father to a murdered son," etc.), "What am I going to do with you? You simply won't... die."  Sounds like Chris Hitchens . . . 

April 26, 2010 in Garnett, Rick | Permalink | TrackBack (0)

Media coverage reflections...



Thanks to Rob for his commentary and juxtaposition of the Clark Hoyt “Questioning the Pope” (The New York Times, April 24) and Ross Douthat’s “The Pontiff and the Press” (The New York Times, April 21). As is the case with Rob, I am not surprised by the Hoyt piece’s conclusion.

I have stated in the past that sexual abuse of and sexual misconduct with children by anyone is sinful and probably criminal. I also find that the media often do provide an important service to the public by bringing to our attention this plague so that it can be stopped. Most members of the Church have learned some hard lessons in this regard, and I think we’ll be learning some more in the future. But I also hope that the rest of society, including the media, will learn that no one can victimize anyone else, especially children and pretend that these sins and crimes never happened.

Having said this, I think Mr. Hoyt and those who agree with him on the focus of his article need to be asked some additional questions. One of them concerns the role of plaintiffs’ counsels in trying cases in the media—or, more accurately, turning over sensitive documents (probably from discovery) to reporters and other media representatives who may not understand the context or the language in which they are written. This has happened before, and I think it likely to happen again. This is a matter—a grave problem in my estimation—that he quickly dismisses.

Elsewhere, Mr. Hoyt raises a good and obvious question presented by others: “why it (the Times) isn’t giving equal effort to sex abuse in public schools, or in other religions”? But he avoids answering the question he poses, and instead he contends that “it would be irresponsible to ignore the continuing revelations.” It seems that these “continuing revelations” only involve Catholics. I would suggest that, in addition to what happened in cases involving Catholics and sexual abuse and sexual misconduct, it would be irresponsible to ignore the continuing revelations from sources such as the Department of Education’s 2004 report [Download US Dept of Education Educator Sexual Misconduct] synthesizing literature on educator sexual misconduct that include by extend beyond the Church. Tragically, what this report contains is about the present day and the victimization of young people that Mr. Hoyt’s remark dismisses.

His journal, The New York Times, and the Church sometimes share the same or similar perspectives on important issues. However, there are other occasions when the two do not because of different values or different motivations. For example, during the Second World War, the Times praised the efforts of Pope Pius XII; however, in the late 1990s, this influential member of the media ignore its past reporting and was vocal in its criticism of Papa Pacelli without taking stock of what it had said of him a half century earlier. Why, I ask? New values?

On another front, the Times, while generally complimentary of Paul VI’s October 1965 address to the General Assembly of the United Nations, had to criticize him in an editorial published shortly after the pope’s UN intervention by calling the pope’s concerns about artificial birth control “an unnecessarily narrow, old-fashioned interpretation of natural law doctrine.” I, and I know many others, did not then and do not now find Paul VI’s words to be “unnecessarily narrow” or “an old-fashioned interpretation of natural law doctrine.” But, how to explain the disagreement with the Times? A different set of values, perhaps—the pope’s based on the foundation of an objective moral order; and the Times’, well, some other source, I gather.

I hope I am wrong, but I see accumulating evidence that this gulf between the Church’s teachings and the values will continue to grow with the positions of some in the influential media outlets. Should the gulf of values continue to expand, I pray that the Church and her members will stay to serve as counterpoints to the views and values of a contemporary culture that condemn only some sins and crimes but not all others.


RJA sj


April 26, 2010 in Araujo, Robert | Permalink | TrackBack (0)

The past month of media coverage . . .

If you haven't read this weekend's assessment by the New York Times' public editor of the newspaper's coverage of Pope Benedict and the sex abuse crisis, you should.  (The conclusion -- Surprise! -- is that the paper has behaved responsibly.)  I still think Ross Douthat has had the best and most concise advice:

I think the last month’s worth of press coverage would have played out very differently if Rome had greeted the [original Munich] story, not with circle-the-wagon defensiveness, but with a clear, “bucks stop here” statement from the pope that 1) took responsibility, as the head of the Munich archdiocese at the time, for mistakes made by his subordinates, 2) acknowledged that the Vatican bureaucracy had been too slow, in the past, to reckon with the crisis, and 3) summarized in detail the labor that’s been done during this pontificate to come to grips with the scandals. . . .

April 26, 2010 in Vischer, Rob | Permalink | Comments (0) | TrackBack (0)