Mirror of Justice

John Finnis

While much of the country was anticipating the conclusion of “American Idol,” I was waiting for the arrival of the five volumes of The Collected Essays of John Finnis from Oxford University Press. I’m just now starting to dip into the essays, which gather the highlights of Finnis’s writings since 1967. One is immediately struck by the extraordinary range of topics on which Finnis has written over that period--philosophy of law, of course, but also issues in bioethics, political theory, moral philosophy, moral theology, and history. MOJ readers will be especially interested in the essays in Volume III, Human Rights and the Common Good, which take up John Rawls, immigration, theories of punishment, just war theory, euthanasia, abortion, and marriage. Even those who disagree with him must acknowledge that Finnis's work--preeminently Natural Law and Natural Rights but also his other books and these essays--is among the towering achievements in Catholic intellectual life over the past 50 years. (By the way, now would be a good time to make your plans to attend the conference at Villanova Law on September 30th of this year celebrating Finnis's work.)

I’ll post some thoughts here as I work through the volumes over the coming weeks and months, but I was especially taken by these final words of Finnis's Introduction to Volume V, Religion and Public Reasons. (Each volume's dustjacket has a painting associated with Finnis's native Adelaide, South Australia. The dustjacket for Volume V is the painting below by S.T. Gill, View of Lake Torrens, 22 August):

The gaze of the intrepid Horrocks and Gill into an immensity of distance can be taken as one icon of the interest and attitude we call religion. Another, certainly, is the Baconian search for forms buried deeper by far in physical matter than had been suspected by the late Aristotelian tradition of transmitting science through teaching rather than investigation and replication. And another is the gaze of an Aquinas, awake in the priory chapel in the earliest morning hours to adore the eternal God hidden, as he believed, under the appearances of a wafer of wheat flour, and to make himself ready for the public work of collaborating in understanding everything that matters, and reasoning about truths and other goods.

 

 

History of (Legal) Ideas

I came across this elegant reflection by Isaiah Berlin about the nature of intellectual history.  From "Russian Intellectual History," an essay collected in The Power of Ideas, 68-69:

What is intellectual history?  It is not a clear and self-explanatory concept.  Such terms as 'political history', 'economic history' and 'social history', however vague their frontiers, however much they may overlap with one another, are not in this sense obscure.  They denote accounts of what certain more or less definable groups of human beings have done and suffered, of the interaction between their members, of the deeds and destinies of those individuals who have been influential in altering the lives of their fellows in certain specific ways, of the interplay between them and external nature or other groups of human beings, of the development of their institutions -- legislative, judicial, administrative, religious, economic, artistic -- and so on . . . . But what is intellectual history?  A history of ideas?  What ideas and conceived by whom? . . . . What is the subject of such speculations and disagreements?  If not the specific ideas that belong to specific disciplines, then what?  General ideas, we shall be told.  What are these?  This is much more difficult to answer . . . .

By 'general ideas' we refer in effect to beliefs, attitudes and mental and emotional habits, some of which are vague and undefined, others of which have become crystallised into religious, legal, or political systems, moral doctrines, social outlooks, psychological dispositions and so forth.  One of the qualities common to such systems and their constituent elements is that, unlike a good many scientific and common-sense propositions, it does not seem possible to test their validity or truth  by means of precisely definable, agreed criteria, or even to show them to be acceptable or unacceptable by means of widely accepted methods.  The most that can be said of them is that they are to be found in that intermediate realm in which we expect to find opinions, general intellectual and moral principles, scales of value and value judgments, mental dispositions and individual social attitudes -- everything that is loosely collected under such descriptions as 'intellectual background', 'climate of opinion', 'social mores', and 'general outlook[.]' . . . . It is this ill-defined but rich realm and its vicissitudes that histories of ideas or 'intellectual histories' supposedly describe, analyse, and explain.

With this stylish, though of necessity imprecise, definition in mind, whom do you think are the leading intellectual historians of law -- not just legal historians, but historians of legal ideas (they may be the same, but they may not be)?

"Catholic Conservatives and the Common Good"

This essay, by Stephen White, is relevant to, well, many of the posts and conversations here at MOJ over the years.  Let's put aside whether we agree, or not, with the essay's policy-related conclusions, and think instead about this paragraph, which strikes me as insightful and important:

Unlike political ideologies of the Right and Left, personalist and communitarian principles are not fundamentally opposed, but complementary. Libertarians and socialists may adhere to incompatible ideologies, but for Catholics, the common good is never “in tension with” (let alone opposed to) the dignity and proper autonomy of the individual person. Subsidiarity is not “balanced against” solidarity. The erosion of solidarity always endangers subsidiarity. In the absence of subsidiarity, solidarity is smothered by dependence upon the state. The dignity of the individual can never be sacrificed in the name of collective utility, and no true individual good can be legitimately won at the expense of the common good.

A "Winn" for Educational Pluralism

The lovely and talented Nicole Stelle Garnett explains (and praises), in the Yale Law Journal's "Pocket Part", the Court's recent decision in Winn, in which the Justices rejected (on "standing" grounds) a (frivolous) Establishment Clause challenge to Arizona's very important and successful tuition-tax-credit program.

"Memory and Punishment"

This is a very interesting paper by Professor O. Carter Snead with the above title.  The paper provides a superb overview of developments in the science of memory alteration, offers a "humanistic" account of the nature of memory (with fitting citations to Proust), and then comments in interesting and insightful ways on the relationship between various traditional functions of punishment and the centrality of memory in their operation.

What Professor Snead says with respect to retribution is especially interesting.  Retribution, in any of its multiple constituent manifestations, depends on a "true and fit" memory on the part of both offenders and jury (at 1246 and following).  Memory modifications (for offender or juror), says Professor Snead, may make the punishment less deserved either because less true to the event and the relevant background or less "fit" to those circumstances.  I found the concept of "fittingness" difficult, but very important.  Professor Snead argues that memory modification might disturb the fittingness of a punishment, but I suppose one would have to know something about the defendant and the jurors (and the community) in order to decide.  If, for example, we were dealing with an affectively stunted individual, perhaps we would want to calibrate memory according to some sort of community scale of fittingness.  Likewise if we were dealing with an individual whose memory was exceptionally keen -- beyond the general sense of fittingness.  Again, if we are interested in a general notion of fittingness along the lines that Professor Snead suggests, perhaps calibration would be in order in such a case as well?

These are just little thoughts.  Take a look at Professor Snead's terrific piece on a deeply interesting subject.

Utilitarianism

Bernard Williams, John Rawls, and Philippa Foot did a lot over the last half of the twentieth century to make utilitarianism a shady philosophical neighborhood to hang out in, but they’re all dead now. Peter Singer has a review in the TLS (not available online) of Derek Parfit’s new and long-anticipated book (in two volumes and 1400+ pages), On What Matters, which Singer writes is “the most significant work in ethics since Sidgwick’s masterpiece [The Methods of Ethics] was published in 1873.” (Really? More important than On the Genealogy of Morals or A Theory of Justice?) Parfit, so far as I can tell, holds an idiosyncratic version of utilitarianism that is a convergence of modern moral theories ("climbing the same mountain on different sides"). I’ve also been having an exchange over at the Catholic Moral Theology blog with Charlie Camosy about the conference at Oxford on Singer and Christian ethics that Rob Vischer posted about earlier. Suffice to say I think Charlie and I have a disagreement about whether and to what extent there are deep and ineliminable contradictions between consequentialist moral theories (including utilitarianism) and Christian ethics, but to quote Foot: “no decision is more important for practical ethics than that by which we come to embrace or reject utilitarianism.”

School Prayer Pieces

This is a provocative short piece by Professor Bruce Ledewitz commenting on a genre of recurring controversy this time of year (this year, it was Louisiana) and on the legacy of Lee v. Weisman.  In his work, Professor Ledewitz has been grappling with the issue of how secular and religious frameworks might be combined to create something new. 

Also, and as it has been a Steve Smith fest here of late (the Oklahoma conference sounds wonderful), I'd like to get on board and point folks to a related article of Steve's involving the school prayer decisions of the 1960s.

An alliance of shared values... But what are the shared values?

 

During May 24 and 25, President Obama engaged the world and, in particular, the English people during his trip to Europe. During his time in the United Kingdom, he participated in a state dinner with Queen Elizabeth [here], delivered an address to the Houses of Parliament at Westminster Hall [here], and conducted a joint press conference with the Prime Minister, David Cameron [here].

During each of these occasions, the President talked about concurrences between the peoples of the United States and the United Kingdom. He rightly and properly acknowledged the social, economic, cultural, and, yes, legal ties between the peoples of his host country and the United States. In my own modest efforts in the classroom, I attempt to remind future lawyers of the indebtedness we Americans owe to the genius of the English rule of law and its legal system and the human laws which they have generated. Of course, I have always been intrigued by the expression attributed to John Adams that we are a nation of laws, not men, and I believe the origin of this expression is based on what we in the United States have inherited from our legal heritage from across the Atlantic Ocean. Of course there is a questionable side to Adams’s words if his expression is viewed to mean that the law is first and people are second, i.e., the human person is the subject of the law and not the master of it. From the perspective from which I consider the matter, the preferable meaning of Adams’s formulation is that the law, as a system of reasoned and objective moral norms, is equally applicable to one and all and protects each from the appetite of the other; hence, the law is servant rather than the master of the human person, all human persons regardless of their condition or location. In short, it is in this second understanding of Adams’s words that the person is protected from the whims and the caprice of his or her fellow travelers in this life.

The President used an important set of words to describe the heritage we share with the British people: there is an alliance of “shared values”, and he spoke of this common legacy on the three occasions to which I have referred. Queen Elizabeth helped define the values when she commented on the “honesty and hard work, courage and fair play, tolerance and curiosity, loyalty and patriotism, and of the sturdy alliances an enduring convictions with which ...[the United States] had met past challenges and would meet future ones.” Our President graciously responded by noting and acknowledging “the union of hearts based upon convictions and common ideals.” He elaborated a bit on this point by further stating, “Our relationship rests on common language, common history, common adherence to the rule of law, the rights of men and women – the very ideals born in this nation.” At Westminster Hall, the President additionally stated that, “Our relationship is special because of the values and beliefs that have united our people through the ages.”

But what are those ideals? What are those shared values? On what principles are they based? What constitutes the “rule of law” to which there is a “common adherence”? What is the foundation of this special alliance? Indeed, our President elaborated by speaking of a robust economy in which all have a role; he emphasized a protected environment in which future generations can flourish; he spoke of the determined need to withstand the bullies and thugs who threaten all peoples through terrorist enterprises. But there is more to what underpins the ideals and values shared by the two nations.

What is missing from the President’s definition of the alliance of shared values is the crucial role of the virtuous citizenship that must be combined with a solid understanding of the nature and essence of the human person. I do not think that the President intentionally omitted this, but it is clear he did not include these two matters in his addresses delivered in the United Kingdom earlier this week. I find that much of what the President said could effortlessly bring comfort to the autonomous individual who is isolated from others in his or her cocoon of liberty fortified by separation from virtue and the understanding of what is the human person and why is he here on this planet.

So what is it that is so important about the virtuous citizen? He or she treasures the freedom about which the President spoke, but this person also recognizes that the rights and claims that attend this freedom must surely be accompanied by a healthy understanding of responsibilities and obligations to all others who have the right to make and perfect the same claims.

The virtuous citizen, I suggest, would be cognizant of this. The virtuous citizen would know that what has made the rule of law established by the “alliance of shared values” so admired in many places throughout the world is the recognition of what is authentically just—to each person his or her due, and the further recollection of what is justice—right relationship between and among all members of the human family. The virtues of humility, prudence, courage, hope, fidelity, wisdom, and others make this recognition and recollection essential elements of human existence and the actions which ensue from this existence.  

The President did speak of the importance of human dignity to the shared values and ideals. But this dignity must be founded not on what powerful and influential pressure groups say it is but rather on what right reason establishes it to be. Sometimes this conclusion is contrary to what the culture insists. Illustrations of this point are found in human history associated with these shared ideals. But, the examples of Thomas More and John Fisher quickly come to mind. As Jacques Maritain defined it in 1943, human dignity is that which is due the person simply because he or she is human. With this point about dignity in evidence, the virtuous citizen would acknowledge that the core of the shared values of which the President spoke must necessarily incorporate the non-derogable right to life and continued existence by every member of the human family if human dignity is to have substantive meaning; moreover, these values must come to the aid and protection of the fundamental unit of every human society, viz. the nuclear family.

Without recognition of these points, the shared values of which the President frequently mentioned can be negatively influenced by human whim and caprice as I have already stated. The circumstance where these values are compromised by human fancy would be the very sort of thing of which Blessed John Paul II taught can make a democracy a thinly disguised totalitarianism. The President appeared to acknowledge something about the beliefs of the virtuous citizen when he said, “It has been the values that we must never waver in defending around the world – the idea that all beings are endowed by our Creator with certain rights that cannot be denied.” The virtuous citizen knows from where his or her being originated and that he or she is not the only one who was so created.

Let us pray that our President and the other civil leaders who heard him will understand the truth about the shared values of which he frequently spoke and incorporate them in the heart of their labors. When this happens, we will know that our civil leaders are also virtuous citizens for whom mere consensus about solutions to the grave or pressing issues of the day that confront the human family is insufficient for the common good of all who have been “endowed by our Creator with certain [and inalienable] rights that cannot be denied.”

 

RJA sj

 

The Poor, The House Budget, Catholic Politics, and the Absence of Serious Dialogue

New York Archbishop Timothy Dolan, President of the U.S. Conference of Catholic Bishops has written a letter to Rep. Paul Ryan that was interpreted in many circles as supporting the Ryan House budget, a budget that supports the rich at the expense of the poor. For a discussion of the various positions taken by Catholic blogs, see Mark Silk’s discussion at Spiritual Politics. In an update, Silk mentions that Michael Sean Winters tells us all we need to know in the New Republic about this issue.

The essay by Winters contains a rich discussion about Dolan and Church politics. Winters concludes, “Dolan will not stand by while the GOP eviscerates those programs that assist the poor and the vulnerable. The Catholic Church, with its vast array of hospitals, shelters, and schools, knows firsthand how nutritional and educational and health programs really do make a difference in the lives of the poor. Most importantly, at the heart of the Church is a gospel that instructs the faithful to care for ‘the least of these’ and sets such care as the price of admission to sanctity and to heaven. No matter how Paul Ryan tries to convince himself that Rome and Rand can be reconciled, they can’t. Ayn Rand despised the poor. The Church is called to treasure them.”

But Winters also observes that “Traditionally, the Catholic Church has been a strong advocate for the poorest sections of society and the social welfare programs designed by government to provide for them. But for years, conservatives have been trying to undo this stance.” Despite the conservative efforts, the U.S. Bishops have continued to lobby against the House budget and to argue that the budget should not be balanced “on the backs of the poor.” Despite this, Winters suggests that Dolan feels some pressure to make those on the left and the right feel comfortable. Winters does not discuss why Dolan feels this pressure or where the pressure comes from. Yes, Michael Novak and other conservatives have argued against a strong governmental role, but Novak’s power comes, if and only if, it resonates with a powerful force among the Bishops. The Bishops have been prepared to ride roughshod over liberals on issues that the Bishops feel strongly about. If the Bishops have been prepared to lobby in ways that are critical of conservative policy, why does Dolan feel pressure to speak in more muffled terms in a more public setting?

Although Winters’s discussion of the politics is rich, I come away disagreeing with Silk: Winters does not tell us all we need to know.

In discussing Ryan’s budget, Rick Garnett says, “One does not have to like Ayn Rand (and I don't), or to be a "Catholic neo-con", to think that (a) it is both profoundly immoral and stupid to continue accumulating debt burdens at our current rates, (b) deep cuts in spending are required, and (c) these cuts require more than the usual promises of increased attention to "waste, fraud, and abuse" and "corporate loopholes" and will have to touch popular social-welfare programs (and defense spending).  Winters is right, of course, to say that Rand's vision is less attractive (because it is unsound) than is Pope Benedict's; but this fact does not eliminate the need to attend more seriously than, say, Sen. Reid has been willing to do to the need to cut spending and to design carefully any tax increases so as to avoid stunting growth.”

I agree with Rick that our accumulation of debt is unsustainable at current rates (though I think spending cuts in the middle of a recession are dangerous - see discussions by Reich and Krugman). I agree that not a lot of money is to be found in combating “waste, fraud, and abuse.” I primarily regret that it is not possible for politicians (despite Commission reports) to have a serious debate about how to reduce the debt.

Republicans with few noble exceptions generally refuse to entertain discussion of tax increases, elimination of corporate loopholes (despite Rick’s implication, there is a lot of money here; the question is what implications for the economy would there be in closing them – an issue that should be looked at on a case-by-case basis), and serious reduction of defense spending. Democrats refuse to entertain the possibility that some parts of social welfare programs need to be adjusted to cut costs and they themselves have also been captured by corporations (though often different corporations than the Republicans), and they have hardly distinguished themselves in calling for defense cuts or the kind of tax increases needed (in the long run tax increases for the middle class will be needed - a lot of money can come from the rich, but not enough and spending cuts will not suffice).

I do not agree (Rick did not directly speak to this), however, that support of the poor needs to be reduced in order to balance the budget.  I think the Catholic Bishops are right in opposing the balancing of the budget on the backs of the poor.

Religion and Belief

Reading John Breen's post made me think about how much has changed since Michael Polanyi confronted the scientism of the early twentieth century. In those days phrenologists were still feeling the bumps on peoples' heads. The scientism of that period was reductive and speculative, as Husserl points out in his unfinished work, The Crisis of European Science. Philosophers were uncritically embracing the untested promise of the natural sciences during that period without questioning the underlying presumptions. Husserl turned to Cartesian skepticism as a palliative to the naive presumptuousness of philosophers. He wanted philosophers to question everything. 

I do not believe that human minds can, ultimately, be explained in material terms alone. But the challenges posed by science today are not as easily blunted as they were in Polanyi's time. Today, neuroscience in particular is more sophisticated and subtle than it was 100 years ago, and it needs to be very carefully considered. Its claims run deep into the traditional understanding of what it means to be a human being, and it has the potential to alter some traditional beliefs and settle some ancient debates.

John points out in the passage he quotes from Polanyi that attention must be given to knowing what we can "know and prove and what we cannot." This is right, of course, and it means that the details of the neuroscience claims must be carefully considered: Has consciousness itself been explained? No. Despite books that claim to do just that. But, neuroscience is expanding human self-understanding at an enormous rate, and it is challenging some philosophical ethics precisely because of what it can prove. Mostly, these issues have little bearing on our lives, but they intrude and overtake us when we are faced with difficult choices about how a loved one with, say, brain cancer ought to be treated--when the options one faces force a choice between cognitive capacity and extended life or between the capacity for moral judgment and severe, life-threatening seizures.

Paul Griffiths made a comment at the Oklahoma conference about religion being a fairly recent concept, or at least the contemporary usage of the term. It is easy to uncritically accept an Enlightenment understanding of religion, even as we question the wisdom in doing so. Years ago I encountered a similar thought to Griffiths' comment in the writings of Wilfred Cantwell Smith, who was director of the Center for the Study of World Religions at Harvard Divinity School prior to Diana Eck. Smith, in several books, argued that religion is a modern western concept (and some would say "colonial"), and that the equation of religion with belief is a misleading reduction. Faith is not simply a commitment to an unwarranted belief, but the outworking of people trying to live rightly and artfully in the world by putting their "heart on" (to have trust in) a certain way of life. I point this out not because I think Smith had the final word on this topic, but because any attempt to negotiate between scientific naturalism and religion must include an understanding of the nature of the truth claims made on all sides. And throughout the twentieth century the nature of religious truth-claims has been debated. The devil is in the details.