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.

Friday, November 18, 2011

Usury Revisited

A while back I had some thoughts about usury as existing in a somewhat unique position from a historical point of view.  Professor Bainbridge had a nice response to my post.  And this is a more recent and also very thoughtful post by John Schwenkler, discussing a piece by Elizabeth Anscombe, Faith in a Hard Ground, in which she comes down very strongly opposed, that I did not know.

November 18, 2011 in DeGirolami, Marc | Permalink | Comments (9) | TrackBack (0)

Matthew Rose on Karl Barth on Secular Politics

Following on the discussion below about the limits of the state, my friend and Villanova colleague Matthew Rose writes the following in his splendid book Ethics with Barth: God, Metaphysics, and Morals (Ashgate, 2010), which provides a Catholic reading of the great twentieth century Swiss theologian Karl Barth and here makes a powerful case for the place of secular politics in an adequate political theology:

[O]ne might suggest there is an implicit deference paid to the kingship of Christ wherever a politics views itself critically and at a distance. The state announces its penultimacy, in Bonhoeffer’s useful term, when it boasts of no ambition to achieve absolute consensus or perfect harmony among citizens. By putting itself on endless trial, by conceding it must be limited in its claims and open-ended in its decisions, by seeking peace over perfection, and by refusing to be a site of ultimate loyalty, a secular politics affirms its own servanthood and bears implicit witness to God.

For Barth, then, it is precisely in and through its secularity—its incapacity to take responsibility for word and sacrament; its inability to define a full account of human flourishing; its repudiation of any salvific powers—that a politics discloses “not I, but one greater than I.” It is precisely in the recognition of its own impermanence and imperfect justice that the political discloses itself as a way station in a journey toward the end of human history. A secular state that respectfully shrinks from questions of theological truth does not therefore indicate theological insouciance or, worse yet, dissemble its own thinly-veiled totalitarianism. In its confession that it cannot bestow ultimate meaning or provide final consolation, secular politics instead (tacitly) acknowledges that there can be no easy correlation between the broken middle of the saeculum and the new Jerusalem. On Barth’s view, the secular state indicates (if unwittingly) that after Christ there is no other all-decisive political event for which the world must await with fear or an optative sigh. It discloses (if unknowingly) that no government can be seen as God’s chosen instrument for the salvation of humankind or as indispensable for the unfolding of his providential plan. Secular politics pay silent homage to God by its professed incapacity to embody the promise of the kingdom proclaimed and inaugurated in Christ. Human governments, an influential political theologian [Oliver O'Donovan] recently wrote, are instead “marked for displacement for when the rule of God in Christ is finally disclosed. They are Christ’s conquered enemies; yet they have an indirect testimony to give. . . . Like the surface of a planet pocked with craters by the bombardment it receives from space, the governments of the passing age show the impact of Christ’s dawning glory" (pp. 166-67).

November 18, 2011 in Moreland, Michael | Permalink | Comments (2) | TrackBack (0)

Holiday Music

My colleague, Mark Movsesian, has an amusing post about a concert planned for the "holiday season."  Careful and excellent scholars like Daniel Dreisbach, Vincent Phillip Muñoz, and Donald Drakeman have persuaded me that, in addition to his other discretions, Jefferson was rather cagey and nuanced about the quality of his beliefs in the separation of church and state.  At the very least, I don't recall any of his writing on this score involving the righteousness of marital infidelity, so the binding theme of the concert is not clear to me.  I suppose those who attend should not expect to hear any masses, and few oratorios, chorales, and cantatas as well.

November 18, 2011 in DeGirolami, Marc | Permalink | Comments (0) | TrackBack (0)

Thursday, November 17, 2011

"Keeping Faith"

I'm conducting a series of interviews with Princeton faculty colleagues representing different traditions of religious faith for our campus newspaper The Daily Princetonian. The series is entitled "Keeping Faith." The first two (of six) interviews have now been published.

Here is a link to the interview with my Muslim colleague Amaney Jamal, a wonderful scholar of Middle Eastern politics: http://www.dailyprincetonian.com/2011/11/10/29278/.

Here is a link to the interview with Harold James, an eminent economic historian and Catholic convert: http://www.dailyprincetonian.com/2011/11/17/29376/.

Coming up are interviews with religion scholar Martha Himmelfarb (Judaism), physicist Shivaji Sondhi (Hinduism), engineering professor Paul Cuff (LDS), and religious ethics scholar Eric Gregory (Protestant).

November 17, 2011 | Permalink | TrackBack (0)

The Social Kingship of Christ: Metaphysical, not Political*

I'm not sure if this makes me a neo-con or a classical liberal or something else, but my friend and colleague Patrick Brennan already knows that I do not think that the doctrine of the Kingship of Christ--which we will celebrate this weekend--has the political implications with respect to the competence of the state that Patrick implies it does in his post. What Patrick regards as a "contingently incompetent" constitutional arrangement in our American regime seems to me an essentially sound basis for limiting the jurisidiction of the state with regard to religious doctrine and was affirmed by the teaching of the Second Vatican Council in Dignitatis Humanae that it is "completely in accord with the nature of faith that in matters religious every manner of coercion on the part of men should be excluded" (Para. 10). The state must, of course, foster religious freedom, and the coercive power of the state does extend to public order (including public morality). But (only) the temporal common good is the end of political society, a Catholic via media between the alternatives of secularism and theocracy.

* A play on John Rawls's claim that his theory of "justice as fairness" was "political, not metaphysical."

November 17, 2011 in Moreland, Michael | Permalink | Comments (3) | TrackBack (0)

Snead & Wardle (and Newman) on Stem Cell Research

Yesterday's Murphy Institute program on "Embryo Rights and Stem Cell Research" with Carter Snead & Lynn Wardle was (not surprisingly, given the speakers) excellent.  We'll be posting the video here soon.  I was particularly intrigued by Lynn's discussion of the contrast between the firm and explicit statements made by LDS religious authorities on abortion, and their failure to make any sort of statement about stem cell research.  His speculation about the reasons for this included an explanation of Mormon beliefs on the importance of the intellectual work that men and women are expected to do in trying to work through a particular topic before their minds are ready to receive God's revelations about that topic.  Lynn suggested a number of other possible explanations, but this one particularly intrigued me -- that there might just still be too much uncertainty about the possibilities and dangers of this sort of research for us to be ready to hear (and correctly understand) what God might be trying to tell us about this topic.

The discussion made me think about the Blessed John Henry Newman's writings about the interplay between faith and reason.  One of my favorites is one of his pre-conversion Oxford Sermons (Number 15), in which he precedes an exploration of the interplay between faith and reason with an introduction asserting the Virgin Mary as its paradigm.  Mary, he argues, is “our pattern of Faith.”  Her fiat, her complete acceptance of the truth of the Angel Gabriel’s message about the child she was being asked to bear, her absolute and total “be it unto me according to thy word,” is the paradigm of faith for all of us.  She received an impression of a divine truth through a revelation more vivid and powerful than most, and she accepted it fully, almost instantaneously. 

However, Newman continues, “Mary’s faith did not end in a mere acquiescence in Divine providences and revelations:  as the text informs us, she ‘pondered them.’” Newman highlights the many instances in which the Scriptures explicitly note that Mary actively reflected on things that others were saying about Jesus and on Jesus’s actions – at the adoration of the shepards at the Nativity, at the finding of Jesus in the Temple arguing with the doctors, and at the wedding at Cana.  In this pondering, this reflection, this application of reason to the truth of Jesus’ divine nature that she had accepted at the Annunciation, Mary is our pattern of Faith both in our reception of divine truths and in our natural response to this reception --- our reflection upon it.  Newman emphasizes:  "She does not think it enough to accept, she dwells upon it;  not enough to possess, she uses it;  not enough to assent, she developes it; not enough to submit the Reason, she reasons upon it;  not indeed reasoning first, and believing afterwards . . . , yet first believing without reasoning, next from love and reverence, reasoning after believing."

       In the area of stem cell research, there seems to be so much pressure to accept the position suggested as one possiblity by Lynn -- we haven't yet figured enough out about the science, so we're not yet in a position to understand what God might be trying to reveal to us.  In contrast, the Catholic position seems to be -- the more we learn from science, the more we come to understand all the ways in which the fundamental position that life begins at conception is proven to be true, again and again -- Carter's talk was a wonderful articulation of that position. 

    This morning I heard this story on MPR:  "Scientists and security specialists are in the midst of a fierce debate over recent experiments on a strain of bird flu virus that made it more contagious. The big question: Should the results be made public?  Critics say doing so could potentially reveal how to make powerful new bioweapons."  It struck me as a fascinating example of a situation where the "scientific imperative" to always forge ahead with any sort of scientific research, regardless of the dangers or collateral cost -- was being seriously questioned, even by members of the scientific establishment.  The possibility of millions of  -- already born -- humans being killed by rogue viruses is seen as a serious threat.  Too bad the reality of millions of -- not yet born -- humans being killed in the pursuit of the elusive rewards of embryonic stem cell research isn't being taken as seriously.

November 17, 2011 in Schiltz, Elizabeth | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 16, 2011

More on “More than a Monologue”

Readers of the Mirror of Justice will recall that I have previously written [HERE, HERE, and HERE] on the four-institution project sponsored by Fordham University, Fairfield University, Yale Divinity School, and Union Theological Seminary. Although the conveners of this project asserted that they wanted “to change the conversation about sexual diversity and the Catholic Church” by presenting “the variety of viewpoints on issues of sexual diversity among Catholics,” the Archbishop of New York and the Bishop of Bridgeport expressed their concerns to the heads of two of the convening institutions regarding the appearance of the program that dissent from rather than support and defense of Catholic teachings was the nature of the presentations. However, these bishops were assured that “the conferences, while sensitive to the experiences of the participants, will not be a vehicle for dissent.”

As I indicated in a previous posting, I heard most of the presentations delivered at Fordham, Fairfield, and Yale, and it was my initial conclusion that these conferences were, in fact and whether intended or not, a criticism or questioning of the Church’s teachings on critical matters dealing with faith and morals. One of these presentations concentrated on same-sex marriage and was billed as a keynote address, and its content justifies and intensifies my earlier conclusion.

Although the speaker claims to be Roman Catholic, she noted her “wrestling” with the Church’s teachings on homosexual activity (not orientation). Her substantive disagreements with the Church’s teachings in the context of sexual activity and marriage are patent and were presented in three parts.

The first part argues that homosexual activity is moral, and this conclusion directly conflicts with the Church’s fundamental teachings; moreover, the author acknowledges this contradiction. However, she defends her case by arguing that homosexual couples can be and are open to the gift of life from God—just in a different way than heterosexual couples. But if one disregards this crucial difference, then, according to the keynoter, homosexual persons are on the same plane as pregnant and postmenopausal women and infertile men. The biological distinction of male and female enters neither her imagination nor her reasoning. A major point of her argument here is that couples, regardless of their sexual orientation, can be open to the gift of life through adoption—and as we have seen, this constitutes another conflict with Church teachings regarding whether same-sex couples should adopt children.

But the keynoter continues: the sexual relations that can exist between all couples, regardless of their orientation, provide the physical satisfaction that can sustain any “kin-like tie[] and childrearing partnerships.” She takes to task “the bishops” who are not open to “the truth of human sexuality” through “the sexual experience of faithful Catholics of all sexual stripes.” But experience is not the same as truth about the nature and essence of the human person.

Still for her, homosexual activity “can be open to and serve life in precisely the same way that the biologically infertile, heterosexual activity” is because “the biological openness to the possibility of procreation is not essential to good sex” and “love-making need not be inseparably connected to potentially baby-making activity in order for it to be morally good.”

In an effort to buttress her argument, the keynote speaker insists that homosexual activity is complementary—not as it is with opposite-sex couples’ sexual activity without artificial contraception but as it is with opposite-sex couples who do practice artificial contraception. This is a problem in regard to Catholic teaching. But it is not a problem for the keynoter because for her the notion of complementarity must be understood not in the context opposite sex but in the context of apposite sex—that is, sex that is apt for love-making and “forging bonds through the mutual sharing of sexual delight.” This, too, is a problem.

The speaker then combines the “moral” and “complementary” arguments to substantiate her first part claim by concluding that homosexual acts are normative because they are natural—natural if natural means anyone can do anything with anyone else and call it normal, natural, complementary, and moral. It is clear that the objective reasoning that undergirds the Church’s teachings is absent in the keynoter’s position. What is present in her position is nominalism, subjectivism, historicism, and relativism.

The second part of her presentation is that “official Catholic teaching” about same-sex marriage (SSM) is wrong. In large part her perspective relies on that assertion that since SSM is being accepted and adopted by some temporal authorities, the Church’s position must be in error. She further suggests that since the Church has been complicit in allowing same-sex civil unions, it is in no position to oppose SSM. Yet, civil unions are also new and have also been opposed by the civil authorities for a long time as they have by the Church. There is implied but unproven in her argument that the Church looked the other way regarding civil unions, but in fact the Church did not ignore them; it opposed them as well. The keynoter also contends that differential treatment by the Church for “queer folks” did not begin until 1992. Yet she is mistaken because she fails to mention what the Vatican said in 1983 in the Charter on the Rights of the Family regarding marriage and sexual union. Moreover, she fails to acknowledge that the first civil unions (not marriages) for same-sex couples were not available until the year 2000—long after the Church and some civil authorities expressed their concerns about them. Furthermore, up until very recent times within the last dozen years, both the Church’s teachings and the civil norms regarding marriage were comparable, a point she overlooks. Nor does she acknowledge the passage of the Federal Defense of Marriage Act which became the law of the land in 1996.

While the marriage question is a most important issue for the Church in the present age, so are all issues that attack authentic human dignity and the common good; consequently her claim that the “Pope has identified the marriage equality movement as more dangerous to life than hunger, war and tyranny” is a claim that cannot be substantiated.

One further argument she makes which I will tackle today is that “marriage equality will not unduly violate religious liberty.” With the Defense of Marriage Act presently under court challenge and with Judge Vaughan Walker’s unsettling remarks about religion in the context of the Proposition 8 litigation, methinks that the keynoter needs to revisit her insecure claim that the SSM campaign and all its associates, whatever they may be, are not a threat to religious freedom and libertas ecclesiae. If wedding photographers and justices of the peace can be brought to heel on these matters, it is just a matter of time before the members of the Church and the Church herself are also brought into legal and political forums to account for their opposition to SSM. The keynoter would do well to become familiar with the recent discussion presented by Jane Robbins and Emmett McGroarty [HERE] on what is happening to religious liberty today including the SSM context.

The third and final part of the keynote address is that marriage equality is good because it promotes the common good by encouraging love and mutual assistance. This would be accomplished by marriage equality reducing “the social stigma and internalized shame associated with being gay.” But she fails to take stock of the Church’s teachings which make the important distinction between just and unjust discrimination; moreover, she overlooks the positions taken by the Church nationally and universally regarding the sinner who is loved and the sinner who persists in sinning. The key to her third part is that for marriage equality to become “normalized,” the Church’s teachings will have to change. Otherwise “homophobia” and “heterosexism” will remain. So, once opposition to SSM withers, love and the “common good” will prevail. However, this will necessitate that today’s dissent from Church teachings and the heterodoxy that accompanies dissension will have to replace the Church’s views and moral teachings. In essence, what is heterodox must become orthodox, and what is orthodox must become heterodox.

While the organizers of this conference assured two bishops that the Church’s teachings would “be clearly stated and articulately defended” in “More than a Monologue”, something happened in the execution of the plan. Thus, the Church’s teachings were not presented in a convincing way; moreover, the revealed truth upon which they rest was put aside. The promised dialogue did not materialize. What did materialize was a direct challenge to the Church’s teachings.

As Desi Arnaz would sometimes say in his role as Ricky Ricardo, “There’s gonna be some explainin' to do!”


RJA sj

November 16, 2011 in Araujo, Robert | Permalink | TrackBack (0)

Tuesday, November 15, 2011

A follow-up to Rob

Having just read Rob’s post, I cannot disagree with much of his assessment of Laurie Goodstein’s piece today in The New York Times.

I don’t have much to add either other than to underscore the point that the Goodstein article is not really news reporting but rather is an effort designed to put pressure on faithful Catholics—meaning those who believe in and live the Church’s teachings. “The bishops” (a phrase which Ms. Goodstein over-uses—she utilizes it twelve times; I wonder if I could use in this posting “The Times” twelve times to offer a similar displeasure, but I digress) probably would not have to exercise as much of their teaching authority on the neuralgic issues if “The Times” and other media and cultural outlets didn’t focus on the morally problematic by promoting it as the morally desirable and righteous. The shepherds of the Church are doing their job and they must continue to do so.

As far as the assertion that the successors of the Apostles are speaking “in hushed tones” on the other important issues of the day, this is simply not true. One need only read diocesan newspapers containing pastoral messages or regularly view the USCCB’s webpage for starters to know that the assertion of Faith in Public Life is flawed. Ah, but if “The Times” doesn’t report these matters, then the bishops must be speaking “in hushed tones.”

I fear “The Times” would like to see the shepherds of the Church abandon their important and essential teaching office. But I don’t think they will do this. The pressure on them to do this exists without doubt as it exists on many of the faithful who work in the temporal world to bring the Good News to everyone.

Yet the members of the Church must not lose faith; neither must they be afraid even of “The Times.” Right now the pressure on the Church is subtle, but it is also becoming less so.

Hence all the faithful need to recall the dangers posed by the “enlightened culture of the day” highlighted by Christopher Dawson many years ago when he noted that if Christians cannot assert their right to exist, “they will eventually be pushed not only out of modern culture but out of physical existence.” He knew that the totalitarian state of the first half of the twentieth century was capable of doing this. But he also forecast that the western democracies possessed the capacity to do the same.

“The bishops” are doing what they are called to do to see that this does not happen. Clearly this annoys those who would like to see the Church that Christ gave us disappear. But the shepherds are meeting their charge and guarding their flock with grace, prudence, and courage. Nolite timere!


RJA sj


November 15, 2011 in Araujo, Robert | Permalink | TrackBack (0)

The rather-larger-than-asserted competence of "the state"

Rick is surely right when he reports that the Kingship of Christ is a theological doctrine that Catholic preachers by and large don't know how to handle.  Even many of those who grant that Christ reigns now as King take the position, implicitly or occasionally explicitly, that, like Elizabeth II, Christ reigns but does not rule. Some defend the proposition that there are zones that are not ruled by Christ, on the ground that sometimes secularity is "healthy."  As I was saying the other day at the marvelous conference on "Radical Emancipation: Confronting the Challenge of Secularism" sponsored by Notre Dame's Center for Ethics and Culture," however, the absence of the Gospel is never a good.  To be absolutely clear, non-Christians must never be forced to embrace the Christian religion, but this does not entail that socio-political life should not be blessed by the leaven of the Gospel.  The penetration of civil society by the principles of the Gospel is a good to be pursued -- and it is, indeed, a good that Christ the King commands. Here is what Card. Ratzinger said in 1984 on the question of the basis on which the state should be formed and shaped:  "The state must recognize that a funadmental system of values based on Christianity is the precondition for its existence."  (Church, Ecumenism & Politics, 207, emphasis added).  It's a worthy question why the Holy Father recently said something rather less to the Bundestag.

Many leading American Catholic neo-cons are embarrassed by the doctrine of the social Kingship of Christ.  If you have any doubt about that, listen to the silly things George Weigel, Jodi Bottum, and Raymond Arroyo say (and observe the awkward body language and snark on their faces) in this discussion on EWTN .  Weigel concludes by asserting that "The state does not have the capacity to make the judgment that Christ is King."  But this is patently absurd, at least taken as a statement about states as such.  As I've argued before, surely a group of Catholics founding a state would be competent to install leaders who would be competent to recognize what their installers recognize, viz., the Kingship of Christ.  To be sure, many states, including our own, are contingently incompetent to recognize the Kingship of Christ and its social consequences, but the fulfillment of such an unfortunate contingency does not lay a finger on the traditional Catholic teaching that Christ is King over political society.  Nor does the Second Vatican Council alter that teaching.  See Par. 2105 of the Catechism of the Catholic Church.  How could it?  Jodi Bottum claims in the video that "Christ is king of we [sic] as individuals."  It is by nature (and supernature) that we associate, however, and I cannot understand the claim that, when we do in fact associate in political society to achieve the natural common good, Christ pro tanto loses his jurisdiction.  Bottum is right that this is an "unAmerican idea," but that's hardly a fatal condition.        

November 15, 2011 in Brennan, Patrick | Permalink | TrackBack (0)

The NYT on the bishops' concern for religious liberty

Here's a deeply cynical article in the New York Times on the bishops' new religious liberty committee (mentioned here by Rick).  A few points bear noting:

First, focusing on religious liberty is not simply a "recasting" of the Church's existing opposition to abortion and SSM.  These are related but distinct issues.  I'm pretty sure that the bishops are not dropping opposition to abortion or SSM from their agenda, and supporting the religious liberty cause does not require consensus on the merits of abortion or SSM. 

Second, I don't think it's fair to say that abortion and SSM have now "eclipsed" poverty and economic injustice as important issues to the bishops.  I don't think there's any comparison between the amount of resources the bishops devote to combating poverty versus combating abortion or SSM.  The fact that more of the bishops' teaching platform has been devoted to abortion and SSM in recent years may not reflect changes in relative importance as much as changes in social circumstances.

Third, the suggestion that the bishops' teachings on politics and morality have "been met with indifference even by many of their own flock" does not necessarily follow from the cited statistic that only 16% of Catholics had heard of the document, "Forming Consciences for Faithful Citizenship."  I'm guessing that the statistics for documents issued by the bishops to address economic injustice would not be much rosier.  The implication that Catholics care less about the bishops' teaching on an issue like religious liberty than on an issue like poverty needs more evidentiary support.

Finally, I tend to be leery of cherry-picked quotes to close off an article.  They often seem to be carefully chosen laundering devices to allow the expression of the author's own opinion without (explicitly) violating journalistic standards.  So the article ends with this: “The bishops speak in hushed tones when it comes to poverty and economic justice issues, and use a big megaphone when it comes to abortion and religious liberty issues.”  This is an unfairly sweeping statement, especially as the final word in a "news" article.  To take one of many examples: Archbishop Nienstedt, no shrinking violet on SSM and abortion, was front and center over the summer in opposing the GOP's efforts to balance the Minnesota state budget through draconian cuts to social services.  It didn't sound too hushed to me.

November 15, 2011 in Vischer, Rob | Permalink | Comments (17) | TrackBack (0)