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.

Wednesday, September 28, 2011

Festivities and Changes

As many of you know, for me the last several months have been beautiful – but intense.  This past year the Focolare community in the US celebrated its 50th anniversary, and I went into hibernation to put together (with co-author Tom Masters) a book for the occasion, which responds to some of the "frequently asked questoins" about its approach and its mesh with local church and parish structures, and which discusses how its work fits into the framework of American culture:  Focolare: Living a Spirituality of Unity in the United States (New City Press 2011)

Right after those festivities I spent six weeks teaching (in italian!) in the Focolare’s relatively new interdisciplinary master’s program near Florence – the Sophia University Institute – a fantastic experience.  The summer then brought a major change – a move from the Bronx Focolare community house to the house in Washington DC, and from Fordham to a new job as a visiting lecturer at Georgetown Law School – where I am teaching seminars in "Catholic Social Thought and Economic Jutice" this fall, and "Religion and the Work of a Lawyer" in the spring.  Hopes are high that I will now have a little more time to blog!  Amy

September 28, 2011 in Uelmen, Amy | Permalink | TrackBack (0)

Tuesday, September 27, 2011

Catholic theologians' statement against capital punishment

Here (HT:  Grant Gallicho) is a letter, signed by a number of Catholic scholars and activists, called "A Catholic Call to Abolish the Death Penalty."  I agree with the letter's call.  That said, two quick thoughts:  First, my sense is that many death-penalty opponents are over-stating the matter when it comes to Troy Davis's factual guilt, and the "Georgia executed an innocent man" charge.  I do believe that our executive-clemency and other post-conviction review procedures are inadequate, but I am not sure it is warranted to charge massive and unfair breakdowns in this particular case.  The case, including the claimed new evidence, was carefully reviewed, several times.  (My own thinking is closer to Chuck Lane's, here.)  Of course, there is nothing remotely controversial or difficult about opposing the execution of innocent people; the challenge is to bear witness to the dignity of every human person by opposing the execution of people who are guilty of serious, awful crimes, as I still believe Troy Davis was (and as, for example, Timothy McVeigh was).

Second, I appreciate the fact that the theologians' letter calls specifically for legislative action to reform post-conviction procedures and abandon capital punishment.  As I've said elsewhere with respect to this issue, although I want our legislatures to end capital punishment, and have worked to bring about that end, I don't think the Supreme Court should presume to strike down capital punishment as unconstitutional.

September 27, 2011 in Garnett, Rick | Permalink | Comments (7) | TrackBack (0)

Another impending execution that the press should be talking about

In Iran, "Execution for Apostasy Seems Imminent."  More here.

September 27, 2011 in Garnett, Rick | Permalink | Comments (1) | TrackBack (0)

(Still) More on Natural Law and Judging: Baur replies to Arkes (and Arkes responds)

Prof. Michael Baur sends in this response (below) to a recent blog-contribution by Prof. Hadley Arkes:

In Book IV of his Republic (at 435a), Plato suggests that it is only through the jostling or rubbing together of our varying ideas and conceptions (much like the rubbing together of two dry sticks) that we can ignite the spark of insight and arrive at a true understanding of things.  I am deeply grateful for Professor Arkes’s thoughtful dialogical jostling, through which some very significant questions have emerged.  Let me now try to repay at least part of the debt that I owe. . .  

[UPDATE:  I've added Prof. Arkes's response at the end of Baur's post, after the jump] 

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September 27, 2011 in Garnett, Rick | Permalink | Comments (2) | TrackBack (0)

Mens Rea, Mistake, and the "Over-criminalization" Trope

It isn't too often that the subject of mens rea and mistake of fact and law appear in mainstream media accounts, but this piece in the Wall Street Journal is an exception.  The piece's main point is the erosion of mens rea in various new federal laws.  I have reservations about the current 'too-many-laws' trope.  I very much agree that some new laws are unnecessary and I also am generally uncomfortable with punishment practices which do not depend on a healthy dose of moral culpability as their primary justification.  But I think that there are pockets of under-criminalization as well as over-criminalization and that one needs to take the claim of over- or under-criminalization case by case.

The article also mixes together a number of issues which make the over-criminalization claim appear stronger than it is.  For example, it tells the story of a person who was convicted of possession of a weapon by someone previously convicted of a misdemeanor domestic violence offense.  The article says that this person "hadn't been told of the new law" and presents this fact as somehow unfair and further evidence of a new problem of over-criminalization.  But this is wrong.  It has long been the case that mistake of law is generally not a defense: ignorance of the law is no excuse.  There are exceptions to the rule, such as where a person is charged with a specific intent crime -- e.g., willfully failing to file tax returns.  In those circumstances, a mistake about whether the law applies to one's conduct does excuse, because the law itself requires a person to act "willfully."  But this is not such a crime.  It's simply possession of a gun, a general intent offense.  People are not required to be informed that specific laws exist which might apply to them (the law must be published, of course, to give them notice); they are required to make efforts to find out about the law on their own, and that is a perfectly sensible rule.  The fact that this guy didn't know about the law is his fault, and certainly not an indication of over-criminalization.

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September 27, 2011 in DeGirolami, Marc | Permalink | Comments (1) | TrackBack (0)

Monday, September 26, 2011

Further thoughts on the Pope’s Bundestag address

Thanks to Rick and Richard for their previous thoughts on the Pope’s address to the German Bundestag. Other commentators, such as our friend (and Rick’s colleague) Cathy Kaveny [HERE] CUA’s (emeritus) Fr. Joseph Komonchak [HERE] have also offered their thoughts at dotCommonweal.

Professor Kaveny relies on the work of Paul Ramsey in her commentary on the Pope’s address. She expresses sympathy with the Ramsey view that the “Catholic” understanding of natural law—perhaps attributable to the Pope—has been narrowed by the Catholic tradition. Interestingly, Ramsey argues that “if there are inflexibilities and claims of absolute certainty and finality in a theory of natural law... [they flow from] another point in Roman Catholic moral theology, namely, the claim that the natural law has been ‘republished’ in revelation, or given determinate and specific shape in Scripture as guarded  and interpreted by the positive teachings of the Church.” Cathy also notes that the common law tradition is a better model to avoid “shut[ing] down controversial questions prematurely, or attempt[ing] to have the last word in the public discussion” than the “manuals of moral theology.” She concludes by asking “how Ratzinger would respond to Ramsey.”

I think from what the Pope said at the Bundestag, he would argue that Ramsey misunderstands natural law theory as it has been developed by the Church; moreover, I think the Pope would disagree with the characterization that the Catholic perspective is narrowly defined by revelation and Scripture.

In his piece, Fr. Komonchak focuses a good deal on Benedict’s addressing of the ecology issues—the ecology of nature, and that of man. I am certain that Komonchak is on to something, but he concludes his observations by stating, in referring to human ecology discussed by the Holy Father at the Bundestag, “That we cannot reasonably and responsibly ignore crucial elements of the beings we are is, I think, the Pope’s point, and I think it needs stressing, [Araujo here: I share this view] but all the work lies in trying to determine which of the laws of nature yield precepts of the natural law. I think the Pope passes over this question.” I think Fr. Komonchak, if I understand his point correctly, is wrong in this last assertion. Pope Benedict is not talking about the law of nature yielding “precepts of natural law.” He is talking about something quite different.

The fundamental point the Pope argued deals with reason—that is, right reason, objective reason. And the Holy Father knows that it is in the nature of the human person to exercise his or her intellect in this fashion. Moreover, the importance and relevance of nature to the Pope’s address is that the human person, with the intelligence just described, can perceive and understand the intelligible world—ecology, if you will—that surrounds the person. In turn, the combination of human intelligence perceiving the intelligible reality that forms the surrounding ecology becomes the “true sources of law” as he states and elaborates.

He relies on St. Augustine’s observation that those who make and enforce law without justice (that is justice based on the methodology I have just described) are nothing more than bands of robbers. The Pope was not reticent to state that his fellow countrymen who ran Germany in the 1930s and throughout the Second World War were such bands. These “leaders” did not use their intelligence wisely; they did not perceive with intelligence the intelligible world, and hence, the laws they made and enforced were terribly flawed. This is why the Pope said,

If something is wrong in our relationship with reality, then we must all reflect seriously on the whole situation and we are all prompted to question the very foundations of our culture. Allow me to dwell a little longer on this point. The importance of ecology is no longer disputed. We must listen to the language of nature and we must answer accordingly. Yet I would like to underline a point that seems to me to be neglected, today as in the past: there is also an ecology of man. Man too has a nature that he must respect and that he cannot manipulate at will. Man is not merely self-creating freedom. Man does not create himself. He is intellect and will, but he is also nature, and his will is rightly ordered if he respects his nature, listens to it and accepts himself for who he is, as one who did not create himself. In this way, and in no other, is true human freedom fulfilled. Let us come back to the fundamental concepts of nature and reason, from which we set out.

Pope Benedict’s view is neither narrow nor restricted to revelation or Scripture. It is based on reason, right and objective and moral, which is a gift to be used wisely for one’s self and for others. He shares his fellow German, Heinrich Rommen’s view that the natural law is neither explicitly nor implicitly based on “Catholic Weltanschanung.” The view of man’s nature essential to the Pope’s address is that the human person cannot restrict one’s self to Hobbesian individualism where the human person is simply self-centered and self-concerned. What is the fundamental truth of human nature is that the person who uses his or her intelligence wisely and perceives well the intelligible reality will come to realize that the common good—the good of the self that is inextricably tied to the good of all—is essential to the making and enforcing of law that seeks that which is good and avoids that which is evil. And vital to this last enterprise is caritas—something which is not alien to Benedict’s public writing and addresses but is usually absent in the making of laws in the present age.

This is why Benedict relied on the illustration of the young King Solomon. He was offered anything by God, but he chose not success (power), wealth, long life, or annihilation of his enemies; rather he asked for a “listening heart” so that he might wisely govern God’s people with a loving care that pursues the good and avoids the evil that too often tempts those in power.


RJA sj

September 26, 2011 in Araujo, Robert | Permalink | TrackBack (0)

Pope Benedict's "Reflections on the Foundations of Law"

Richard Myers called our attention to the Pope's recent address to the Bundestag, "The Listening Heart:  Reflections on the Foundations of Law."  It strikes me that this talk warrants a lot more conversation and exploration and engagement, especially from we lawyers.  Contact your local Catholic lawyers clubs, Catholic law-students associations, etc., and dig into the lecture.  Here's just one bit:

. . . Unlike other great religions, Christianity has never proposed a revealed law to the State and to society, that is to say a juridical order derived from revelation. Instead, it has pointed to nature and reason as the true sources of law – and to the harmony of objective and subjective reason, which naturally presupposes that both spheres are rooted in the creative reason of God. . .

September 26, 2011 in Garnett, Rick | Permalink | Comments (1) | TrackBack (0)

Benedict XVI on Martin Luther

If there were any lingering doubt that Pope Benedict XVI has a deeply Augustinian sensibility, that was laid to rest in his meeting last Friday at the Augustinian monastery in Erfurt with the leaders of the Lutheran Church in Germany and by the Pope's praise (!) for Martin Luther:

As the Bishop of Rome, it is deeply moving for me to be meeting you here in the ancient Augustinian convent in Erfurt. As we have just heard, this is where Luther studied theology. This is where he was ordained a priest. Against his father’s wishes, he did not continue the study of Law, but instead he studied theology and set off on the path towards priesthood in the Order of Saint Augustine. And on this path, he was not simply concerned with this or that. What constantly exercised him was the question of God, the deep passion and driving force of his whole life’s journey. “How do I receive the grace of God?”: this question struck him in the heart and lay at the foundation of all his theological searching and inner struggle. For Luther theology was no mere academic pursuit, but the struggle for oneself, which in turn was a struggle for and with God.

“How do I receive the grace of God?” The fact that this question was the driving force of his whole life never ceases to make a deep impression on me. For who is actually concerned about this today – even among Christians? What does the question of God mean in our lives? In our preaching? Most people today, even Christians, set out from the presupposition that God is not fundamentally interested in our sins and virtues. He knows that we are all mere flesh. And insofar as people believe in an afterlife and a divine judgement at all, nearly everyone presumes for all practical purposes that God is bound to be magnanimous and that ultimately he mercifully overlooks our small failings. The question no longer troubles us. But are they really so small, our failings? Is not the world laid waste through the corruption of the great, but also of the small, who think only of their own advantage? Is it not laid waste through the power of drugs, which thrives on the one hand on greed and avarice, and on the other hand on the craving for pleasure of those who become addicted? Is the world not threatened by the growing readiness to use violence, frequently masking itself with claims to religious motivation? Could hunger and poverty so devastate parts of the world if love for God and godly love of neighbour – of his creatures, of men and women – were more alive in us? I could go on. No, evil is no small matter. Were we truly to place God at the centre of our lives, it could not be so powerful. The question: what is God’s position towards me, where do I stand before God? – Luther’s burning question must once more, doubtless in a new form, become our question too, not an academic question, but a real one. In my view, this is the first summons we should attend to in our encounter with Martin Luther.

Indeed, "he was not simply concerned with this or that." While spending a few weeks in Berlin on a fellowship a couple years ago, I took a day trip to Wittenberg to see the famous castle church door upon which Luther is supposed to have nailed his 95 theses and the wonderful Luther Museum at the former Augustinian monastery. While looking at Luther's own handwritten notes in the margins of his Bible, I couldn't help but marvel--notwithstanding some reservations about Luther and Luther's legacy--at the intense fervor that made a German Augustinian monk one of the central figures in world history, a fervor the Pope captures so well and so generously in these remarks.

September 26, 2011 in Moreland, Michael | Permalink | Comments (2) | TrackBack (0)

Conscience, Coercion, and Healthcare

At Public Discourse, Helen Alvare, Carter Snead, and Gerry Bradley add their voices to the many who are urging the Administration to re-think the proposed "interim final rule" regarding "preventative services."  A bit:

[T]hroughout American history, religious institutions have been the leading private providers of charitable, educational, and medical services to the poor, always serving those they felt were the most marginalized populations of their day—whether slaves or freed slaves, new immigrants, Native Americans, prisoners, or persons with AIDS. The quality and efficiency of their care, and the compassion with which it has been delivered, are often noted. Regularly, the populations served did not share the faith of the religious institutions who took up their cause

Given their solidarity with the dispossessed, religious leaders of every denomination have, throughout American history, also effectively led a variety of human rights’ movements, including the movements for abolition of slavery, for civil rights, for campaigns to end poverty, and for justice for immigrants, the elderly, those with disability, and the unborn. The presence of religious leaders and religious institutions in the public square—and not behind the walls of their monasteries, churches or homes—is an inescapable aspect of America’s history of progress and prosperity.

The proposed exemption disregards this history by limiting its application to employers who do little (or nothing) but preach to the convinced. . . .

September 26, 2011 in Garnett, Rick | Permalink | Comments (0) | TrackBack (0)

Lewis on "American Exceptionalism"

I appreciated this essay, in America, by C.U.A.'s Brad Lewis (who is visiting at Notre Dame this year), called "American Exceptionalism:  From a Political Theory to an Article of Faith."  Check it out.

September 26, 2011 in Garnett, Rick | Permalink | Comments (0) | TrackBack (0)