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.

Thursday, December 9, 2010

What Does It Take to Be a “Public Intellectual” When Commenting on the Catholic Church? – Not Much: Richard Posner’s “Contraception and Catholicism”

Most people, especially people who see themselves as intellectuals, are prudent enough not to write on subjects about which they know nothing.  And those writers bold enough to comment on things about which they have only a passing familiarity – comments that will be read and scrutinized by others well-versed in the subject – are usually wise enough to do their homework before making their opinions known. 

Over time it has become common place for lawyers not trained as professional economists to write about economics and to make use of economic analysis in their discussion of legal rules.  Richard Posner has, of course, been at the forefront of the scholarly movement known as Law and Economics since its inception.  And while his conclusions are not without controversy, no one would doubt the seriousness with which he has approached the subject.  Indeed, Posner and others who have engaged in this discourse clearly saw the need to roll up their sleeves and gain a measure of competence in the field before writing. 

What then explains Richard Posner’s recent blog entry (here) entitled “Contraception and Catholicism”?  In it Posner reacts to reports of what Pope Benedict XVI allegedly said in his recent book length interview with Peter Seewald, Light of the World (see here).  Obviously Posner’s post is a blog entry and not a scholarly article.  Still, the carelessness, the lack of serious engagement, indeed, the casual ignorance with which it is written is staggering – not at all what one would expect from a person who sees himself as a “public intellectual” let alone  the standard bearer for all who would claim such a title.  (See here). 

Where does Posner go wrong? 

1.  Let’s start with the most glaring errors.  Posner states that “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.”  As others, including my colleague Robert Araujo, S.J., have pointed out (see here), this sentence contains one error after another.  The Anglican Church did not so much rescind “its prohibition” against contraception as it did separate itself from the historic teaching of all of Christendom.  Pope Pius VI died in 1799 and so could not have authored a document in 1930.  Posner seems to have in mind either Pope Pius XI who authored the encyclical Casti Connubii in 1930 or Pope Paul VI who authored the encyclical Humane Vitae in 1968.  Both documents address the morality of contraceptive practices.  Neither document invoked the doctrine of papal infallibility.  

Posner has now acknowledged some of these errors in a subsequent post (here). The point, however, is that not only was Posner’s original post riddled with errors in this and other passages (e.g. Posner’s description of “the ban on sexual activity and marriage of priests and nuns” as a feature of “Catholic doctrine”), but that these mistakes would be deemed wholly unacceptable in a student paper submitted by a freshman . . .  a high school freshman.  Is Judge Posner incapable of conducting basic research on the Internet?  Were his law clerks and research assistants unavailable to help him?  Or is it that “public intellectuals” are excused from having to grasp and convey basic facts where the Catholic Church is involved?  In the original post Posner acknowledged that he comes to the subject as an “outsider.”  One would think that this would be all the more reason to work to get things right from the start. 

2.  Posner confidently remarks that sexual morality plays “a large role in Catholic doctrine” but that why it plays such a large role “is a deep puzzle.”  Again, as Father Araujo and others have pointed out, sexuality doesn’t play such a “large role” in Catholic morality as even a cursory glance at the Catechism of the Catholic Church would reveal.  While sexual morality is surely integral to the Church’s understanding of the human person, so is telling the truth to others and responding to the needs of the poor.  Posner seems to suggest that the Church is somehow obsessed with sex, when the truth of the matter is that such an obsession can genuinely be found in the secular media, and in the media’s perspective on the Church (see here and here).  This view of the Church is also, sadly, perpetuated by some dissenting Catholics who have captured the attention of the secular media (see here and here). 

Again, the point is that Posner feigns a basic knowledge of his subject matter when he hasn’t bothered to do so much as a Google search.  Instead, Posner demonstrates that the depth of his understanding of the Church doesn’t go beyond the front page of the New York Times.  Indeed, it doesn’t extend below the fold. 

3.  Perhaps the most troubling aspect of Posner’s blog entry is that he appears not to have read the very passage from Pope Benedict’s book that prompted him to post his blog entry in the first place.  Posner says that “Apparently [Benedict] gave the example of a male prostitute’s using condoms (although there is some question whether the male sex of the prostitute might just have been a mistake in translation), and this puzzled people because the traditional objection to contraception is that it prevents procreative sex, and male prostitutes service homosexuals and homosexual sex is not procreative.”  Here it seems that Posner is simply commenting on accounts of what the Pope said and accounts of reactions to what he allegedly said. 

Not everyone is a polyglot.  Moreover, in an era of globalization and in commenting on a truly global institution like the Catholic Church, the need to rely on the translations of others is plainly understandable.  This, however, does not excuse Posner’s decision to base his commentary on accounts of reactions to the Pope’s remarks.  Had Posner bothered to read an authoritative translation of what Benedict actually said in its entirety (see here) Posner might not have claimed (as he did in the post) that Benedict was making a “first, albeit hesitant, step back from the proscription of contraception.”  Reading what the Pope actually said would have shown even an outsider that Benedict was not approving the use of condoms by male prostitutes or anyone else.  Indeed, Benedict clearly stated that the Church does not regard condom use “as a real or moral solution” to combating the spread of AIDS.  Rather, he suggested that such a decision may reflect a kind of moral progress in that the individual who chooses to act this way may be thinking of someone other than himself.  (See here and here).  As Benedict said, “there can be, nonetheless, in the intention of reducing the risk of infection, a first step in a movement toward a different way, a more human way, of living sexuality.” 

Indeed, if Posner had bothered to read what the Pope actually said in its entirety he might have learned something insofar as Benedict’s remarks criticize the notion of sex as a unit of utility that informs Posner’s post.  As Benedict says, what is wrong in the contemporary view of sex is “the attitude of no longer seeing sexuality as the expression of love, but only a sort of drug that people administer to themselves.” 

4.  The bulk of Posner’s post is concerned with the Church as an “institution” and its treatment of contraception within the framework of its sexual morality.  Posner tells us that he “want[s] to consider the institutional as distinct from doctrinal considerations that might explain the history of orthodox Catholic views of contraception.” 

Here Posner seems to imagine that there is such a thing as an abstract, neutral and wholly generic “institution.”  This is, to put it bluntly, a futile project – something akin to trying to examine the modern business corporation “institutionally” but apart from the profit motive, or a sports team apart from the desire to win games, or an orchestra apart from the goal of performing music in public.  It is possible to engage in such an analysis, but doing so will also entail a kind of falsification of the subject under study. 

Put another way, although there are certain features that “institutions” share in common, there is no such thing as a wholly neutral institution –  an organization divorced from the very idea that defines it as such and to which it constituents are drawn.  Thus, even if it is conceded that the Church is an institution (a quite uncontroversial claim) or a “huge ‘corporation’” (as Posner more provocatively claims) one must ask “What kind of institution?  What kind of corporation?”  By precluding answers such as “a doctrinal institution,” “an evangelical corporation” or even, more modestly, “an entity that believes in a kind of moral realism,” “an institution that ascribes truth values to certain moral claims” Posner’s inquiry is bound to come to grief.  Thus, it should come as no surprise that Posner finds “peculiar” the Church’s insistence on priestly celibacy (Nb, at least in the Roman rite) and the ban on women’s ordination since the current shortage of priests would, he says, “be greatly alleviated if priests could marry and women could become priests.” 

Surely every institution exercises prudential judgment in seeking to advance its mission, but the goals, purposes and (in the case of the Church) truth claims that make up that mission define the way in which this prudential judgment is exercised.  To assume that these goals, purposes and claims are simply an impediment to an otherwise pragmatic way of thinking is to misunderstand the nature of the institution in a profound way.  Moreover, far from being a neutral, descriptive model, this understanding of institutions conceals a deep-seated ideology.  Thus, Posner portrays the Catholic Church as a victim of its own teaching, boxed in, unable to “backtrack” from its condemnation of artificial contraception because of its belief in papal infallibility and the ability of people to control their sex drives. 

This deeply flawed understanding of the Church as an institution accounts for Posner’s discussion of how the Church came to regard sex in general and contraception in particular.  Posner describes the Church as “a vast ‘corporation’” with “hundreds of millions of ‘customers.’”  He says that the Church “reached its present size, wealth, and influence in a competitive environment, where it had first to confront paganism and Judaism, and later Protestantism and secularism.”  But in trying to win converts in such an environment, why would it embrace sexual mores that were highly demanding, relative to the Hellenic culture that it inhabited?   Posner’s answer is twofold.  First, these sexual mores were a matter of product differentiation.  That is “accepting the pagan view would have resulted in a failure to differentiate Christianity from paganism, and perhaps reduce Christianity’s appeal to women.”  Second, as “a middle course between Christian extremists . . . and pagans, “the Church’s teaching on sex was a “compromise position” that “sex was proper as long as it was oriented toward its proper function, which, the Church held, was procreation within marriage.”

It is true that the Church’s teaching on sex and contraception has developed over the past two millennia, but it would be wrong to depict this development as a “compromise” in the sense of a bargain struck, as the product of concessions given in exchange for gains sought.  Posner does not bother to consider how the Church can value both virginity and nuptial love, conjugal pleasure and sexual continence.  Doing so would tax the limits of his supposedly neutral paradigm of pragmatic institutional thought.

From Posner’s perspective one can just imagine an early Church “board meeting” down in the catacombs, the participants discussing product differentiation relative to Judaism and the cult of Apollo.  One can just imagine one of the more “institutionally” minded members of the Church’s flock noting that “We have a definite competitive advantage over other religions with the promise of everlasting life and perpetual bliss in the sight of God, and we’re looking at enormous potential growth in the emerging markets of Gaul and Germania, but we stand to lose our growing market share in Rome and in the provinces if we don’t drop all this stuff about being willing to suffer rape, torture, crucifixion, and being devoured by lions in the Coliseum for the sake of the faith.  It’s bad for business.  Oh, and by the way, can we tone down all this talk of consuming Jesus’ Body and Blood when we’re eating the bread and drinking the wine?  Asking people to believe something so preposterous is really going to limit our marketability.”  Right.

Just as a broken clock tells the correct time twice a day Posner manages to say something true.  He notes that “Catholics use contraception at the same rate as non-Catholics” and that the Church’s “proscription of contraception is so widely ignored, and so anachronistic given today’s sexual mores, as to invite derision.”  This is true, and it presents an enormous challenge to the Church today, but it is not a challenge that will be met by abandoning the very values that define the Church as such, no matter how pragmatic such a strategy may appear to an outsider.  That Posner believes that the Church is deserving of derision – that the Church’s teaching is wrong as a normative matter – is certainly a legitimate position in today’s culture.  But Posner should simply say this rather than drape his disagreement with the Church in the purportedly neutral garment of institutional analysis. 

What conclusions can be drawn from all of this? 

From reading Richard Posner’s “Contraception and Catholicism” it seems that, when commenting on the Catholic Church at least, basic research is unnecessary.  One can say whatever one wants, no matter how uninformed, no matter how asinine.  Confronting the Church’s moral claims directly is likewise unnecessary when one can feign a neutral analysis on the institutional level. 

Indeed, from Posner’s post one gathers that all that is needed to be a “public intellectual” is a computer, a famous name, an opinion and the hubris to publish it. 


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Brilliant. Thank you for taking the time to pen such an excellent response.

Posted by: Fr. Josh Miller | Dec 9, 2010 3:00:32 PM

Excellent points. I would have to say that Judge Posner's essay does him no credit. It was posted on a web site that features him and Professor Gary Becker of the University of Chicago. I don't know how much of this view Professor Becker shares.

I commented on their web site, limiting my comment to the economics of the issue of condom use in Africa. One point that the Holy Father has made repeatedly, and made in the interview in question, has to do with a common fallacy in economic thinking, which is to ignore what is called the Law of Composition: that what is true of the individual is not necessarily true of the group. For example, when you or I go to the store to shop we take the posted prices are given and for us they are, but if the group consists of all the curtomers for some item, then their aggregate demand determines the price.

The application in the condom case is that there are two questions dealing with the transmission of the HIV virus: one is the likelihood of transmission as the result of a single sex act and the other is the frequency of transmission in a population within a given span of time.

Condoms can very easily lower the frequency of transmission per act but raise it per month. It is unnecessary for me to make this point here because we are all familiar with how this works, but I mention it because it makes a point about the Judge's thinking. He really is a very informed economist. To have made such a logical error on the economics is rather shocking. It suggests that he has let his personal preferences viz-a-vis the Church override his economic mind on this subject.

In commenting on this matter on the Judge's web site I went on to point out that in some cases the motive for promoting condom use in Africa is not so much to stop the spread of AIDS as it is to stop the spread of Africans.

Posted by: Joel Clarke Gibbons | Dec 10, 2010 8:40:02 AM

What Father Josh Miller said, although I would add (and begin with) where Richard Posner goes wrong and thus his most glaring error is his failure to understand that The Catholic Church's moral claims on the use of contraception are grounded in The Truth of Love. Sexual Love and sex are not the same, for Love is not possessive, nor does it serve to manipulate.

Posted by: Nancy D. | Dec 10, 2010 8:43:14 AM

F.Y.I.- interesting interview by Mike Wallace with Margaret Sanger.


Posted by: Nancy D. | Dec 10, 2010 11:47:17 AM

Judge Posner is an example - I know others - of a person knows nothing about the Church except what he has read in the newspaper. The sort of ignorance you see in his posts is the result. I agree though that one would think he is smart and savvy enough to know what he doesn't know.

At a more fundamental level though, what would one expect from someone who sees everything through the prism of economics? The discipline of economics is particularly ill-suited to explain the Church. How, for example, can economics explain a vow of poverty?

When Judge Posner had up what I believe was his earliest version of his post about contraception, I posted a comment that pointed out a number of errors in one paragraph in particular. Judge Posner revised the paragraph and deleted my post, without acknowledging having done so.

Posted by: Dan | Dec 10, 2010 12:28:12 PM

see Jeane L. Schroeder "JUST SO STORIES:POSNERIAN METHODOLOGY" 22 Cardozo L. Rev. 351 (2001) " (Posner's) assertion that a vision of 'economic reality' predicts pricing in markets is used is used to argue that the same vision of economic reality will also explain sexual, political and and other activity and, therefore, the law should be such and such. The just so story of Posnerian jurisprudence does not merely try to justify the status quo, as did Kipling's. It also aims to justify changing the world in accordance with Posner's personal idealogy."

Posted by: James Farina | Dec 13, 2010 12:27:52 PM