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, November 30, 2010

Judge Posner on “Contraception and Catholicism”

Thanks to John Breen for his posting yesterday on Judge Posner’s web log entry on “Contraception and Catholicism.” I found many of the comments offered by third parties to the judge’s presentation illuminating, but I shall try my best to make a few relevant and different observations here.

First of all, the judge offers little evidence demonstrating that he really understands religion, in general, and Catholicism, in particular. I appreciate the fact that he often writes from a law and economics perspective, and I have read with great interest his important work on the relationship between these two disciplines. However, I think the judge is mistaken in making too much of a parallel between religious beliefs and “institutional strategies”, and between the Church and “a huge corporation.” A corporation’s investment is in the manufacturing of a product and the increase in wealth for the business. By contrast, the Church’s investment is not in “institutional strategies” of “a huge corporation” but in the salvation of souls and their union with God. He makes further references to competition by the Church and its confrontation with paganism, secularism, and other religions, but this is not what the Church is really about or what it really does. The Church is not in the competition business; it is in proclaiming the truth. Consequently, he misses the point of the Church’s true mission, i.e., the salvation of souls.

I realize that the judge is the author of a much heralded book entitled Sex and Reason. It is clear that his book offers personal perspectives on human sexuality and human sexual relations. Some of his book presentation views human sexual relationships through the lens of economic theory. While I will let others test the soundness of these theories, I think he is wrong in his concluding assertion made in his web log post: “Why sex plays such a large role in Catholic doctrine is a deep puzzle...”

Sex does play a role, and an important role at that, in the Church’s teachings, but to suggest as Judge Posner does that it plays “such a large role in Catholic doctrine” demonstrates his unfamiliarity with Catholic doctrine. For starters, we might consider looking at the role of sex in the Catechism of the Catholic Church and the Compendium of the Social Doctrine of the Church. Both volumes say a lot about sex, and while both texts’ treatments on sexual issues are important, it would be erroneous to conclude that their discussions about sex are disproportionate and at the core of every discussion. They are not. He fails to take stock of many other matter that the Catechism and the Compendium address and which do not concern sex, sexual practices, or sexual relations. To claim that sex plays “such a large role in Catholic doctrine” is, quite simply, hyperbole on his part. Once again, the advice of St. Augustine comes into the picture: tolle lege, take up and read—take up and read what the Church teaches and why she teaches.

If the judge thinks that sex plays “such a large role in Catholic doctrine” and that this “is a deep puzzle,” he might want to step back and consider our western society of today to see how sex plays a much larger role in contemporary culture and society than it does in the Church’s teachings. The Church, because of Her teaching authority that was entrusted by Christ, has the right to respond to what culture does to people and how cultural norms can endanger their salvation. So if it seems that the Church is addressing sex in a disproportional manner, Judge Posner might first pause to consider how society, in fact, views, treats, and celebrates sex perhaps much more than it should. If he thinks the Church is fixated on sex, he should really consider how sexual issues permeate and consume so much of contemporary society today through music, television, film, drama, and advertising. If he were to pursue such an investigation, he should see that the Church’s treatment of and attention to sex is proportionate but it is the culture’s treatment of it that is disproportional.

The final matter I’ll comment on here concerns his contention that,

The biggest problem that the Church faces in backing off its traditional condemnation of contraception is a potential loss of religious authority, which is no small matter in a hierarchical church. In 1930, responding to the Anglican Church’s rescission of its prohibition of contraception, Pope Pius VI  made an “infallible” declaration unequivocally reiterating the Catholic Church’s age-old prohibition of the practice, and his declaration was repeated by subsequent popes well into the 1990s. Were the Church now to repudiate that doctrine, it would undermine papal authority. Infallible papal pronouncements would be seen as tentative, revisable, like Supreme Court decisions, which have the force of precedents but can be and occasionally are overruled.

One concern with Judge Posner’s understanding of “the biggest problem that the Church faces” is the mistakes he makes about easily verifiable facts on the ecclesial issues that he addresses in this paragraph. For example, he makes reference to Pius VI who addressed contraception and related matters in 1930; but Pius VI was not pope in 1930. Pius VI was pope from 1775 to 1799. It also seems that the judge might be referring to the encyclical Casti Connubii, which was written by a much later Pope Pius, i.e., Pius XI in 1930. It is also possible that the judge may have been thinking about Paul VI’s encyclical of Humanae Vitae of 1968 if the judge were focusing primarily on the Roman numeral VI. In any case, the judge’s facts are skewed, and this does not help him succeed in proffering a convincing argument.   

The judge concludes by stating that, “The Pope [Benedict] may thus have opened Pandora’s Box.” If any box belonging to Pandora were opened, as Judge Posner states, it was not unbolted by Benedict XVI.


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Araujo, Robert | Permalink

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