Mirror of Justice

Forgive Us Our Trespasses: A Brief Lenten Reflection on the 'Debt Deflation of the Soul'

The analogy is perhaps a bit strained, but only a bit: That posture which many of us take as bright, shining, miraculous but nevertheless blemished beings at Lent is not altogether unlike that which many non-wealthy folk take as fabulously creative and value-adding, while nevertheless liability-burdened, beings during debt deflations like that which our national economy's experienced since 2008.

In both cases, ordinarily vital, bouyant and energetic creatures, freighted with obligations that can never be fully repaid, necessarily hunker down and go quiet for a time. And in both cases, there is something profoundly healthy and natural, rather like inhaling and exhaling - like breathing - in this cycling between inwardness, self-reassessment and pecatum-purging on the one hand, outwardness, self-giving and action-in-the-world on the other. Few if any can put the point better than did Lao-tzu, Heraklitos or, especially, the Ecclesiast: there is indeed 'a time to every purpose/ under Heaven.'

But there might also appear to be an important difference between the two cases, at least on the surface of things. For in the Lenten case, after the tomb comes the rising. Easter Sunday follows Ash Wednesday and Good Friday as a matter of divine course, quite irrespective of what we as responsible agents might do. The debt is forgiven no matter the merit.

New life and resumed growth in the sphere of temporal economic activity, it might be thought by contrast, need not follow as a matter of course. Retrenching citizens who hunker down under debt overhang can drain economies of their lifeblood indefinitely for year after collectively unnecessary year, laying waste to lives, livelihoods, even peace and stability. Such is one lesson that the theory of longterm underemployment equilibria and liquidity traps, as well as the recent 'lost decades' experience of Japan and the less recent global experience of the 1930s and -40s, all make plain. Any counterpart to this in 'the spirit realm' would require that there be no Easter Sunday reliably following Good Friday in that way day follows night.

I'd like to suggest, however, that beneath the surface of things the two cases still bear a deep inner unity. For just as the temporal debt deflation requires the collectively focussed, determined, and concentrated work of 'Jubilee'-style debt-restructuring and -forgiveness as well as public investment to trim back the overhang from both ends, reopen the door and jolt people back to employment-productive activity, so does full emergence from Lent require both (a) an act of forgiveness and (b) active appropriation by all of us as individuals and as faith communities of the resurrection gift.  (To hold off or hold out on that active appropriation, I suspect, is what the Medievals had in mind in describing the sin of despair - a full theologico-categorical counterpart, it would seem, to the temporal economic category of deflation-prolonging depressed 'animal spirits.')  

Easter Sunday might well follow Ash Wednesday and Good Friday as a matter of divine course, then, but there is neither anything 'automatic' or 'mechanical' about it, nor anyone who grows in response to it without zestfully seizing and acting upon it. In that sense, for each of us, both our and another's responsible - and indeed responsive - agency is as needful in the 'divine economy' as it is in the temporal.

Let us, then, remain inward-turned and self-cleansing for as long as is needed in both spheres right now. But let us also, soon, vigorously act upon what we thus learn and receive when the time comes - as surely it will, come this spring.

Incidentally, although I have mentioned and linked here to the Way Forward piece on our ongoing debt deflation before, I've recently learned there's a video version of the same. It stems from an event in DC late last year at which my co-authors Dan Alpert and Nouriel Roubini and I shared the podium with the redoubtable Liaquat Ahmed, Bruce Bartlett, and Leo Hendry. Also present were a host of great American public servants like Senator Don Riegle, as well as such luminaries as Dean Baker, NPR's Marilyn Geewax, and PBS's Hedrick Smith. Interested readers can view it here.

A restorative Lenten season to all.

Live-blogging from Malibu: Steve Smith on secular legitimacy

Steve Smith presented a paper on the secular paradigm of legitimacy:

What makes a government legitimate?  Elements of tradition, public display, and effectiveness, but will also be made in light of intellectual premises that prevail in that society -- divine right, consent of the governed, etc.  That is the paradigm of legitimacy.  We've moved from a Christian paradigm to a secular paradigm.  In a pluralist society, legitimacy paradigms depend on strategies of assimilation and marginalization.

Does a secular paradigm require that criteria of legitimacy be secular (e.g., consent of the governed), or that the government be secular in order to be legitimate?  Today society practices strategies of assimilation to inculcate secularism (e.g., through public schools), but proponents have made use of other strategies, including the neutrality strategy (i.e., government is neither favorable nor unfavorable to religion, but simply neutral), which tends to marginalize religion by pushing it to the private sphere.  In many parts of the world, including the U.S., religion has not cooperated with the secular paradigm, and secularization has not proved to be irresistable. 

The secular paradigm is in serious distress.  For example, though Rawls might fit comfortably within a largely secularized culture, it does not fit with a pluralist but still religiously vibrant culture.  His favored position doesn't fit the world as it actually is.

What do we have to look forward to?  A paradigm in crisis can recover, and an ailing paradigm can persist until another one comes along.  It is possible that our most fundamental commitment is to making sure that the government is based on the consent of the people, rather than to making sure that the government is secular.  Relationship between religion and democracy has been reassessed in places like Iraq; may also ultimately be reassessed in a place like America.

Live-blogging from Malibu: Calo responds

Zachary Calo offers a second response to Prof. Hunter:

Prof. Hunter's account of Christians being in the world offers important models for Christians engaging the law in a world of intensifying and unstable pluralism.  In the absence of any shared moral meaning, law just becomes a weapon in the culture wars.  But the problem of pluralism goes deeper than this, for post-secularity challenges the idea that law possesses a universal meaning.  Legal universalities that were developed in modernity depended on severing law from religion.  Now post-secularity undermines these foundations of the modern legal project.  Legal modernity remains resistant, though, and post-secularity may not have penetrated the modern legal imagination to the extent that Hunter believes it has. 

Post-secularity has shown how legal modernity has subsisted on inherited intellectual and cultural capital.  Question is not whether there should be more or less secularism, but how to give law meaning.  Theology might offer itself as an alternative legal imaginary, emerging in the space afforded by pluralism.  Hunter's "faithful presence" -- i.e., that Incarnation is the only adequate reply to the current condition, inhabiting the world rather than trying to change the world -- is an intriguing model.  Law creates and preserves space for culture.  Law is not just about power, but also about contextualizing the meaning of power.  The problem is not with power as such, but with lack of cultural resources to exercise it properly.  The task of Christian theological jurisprudence is to relocate law and law's meaning within a theological jurisprudence.  Law is oriented for, and ultimately consummated by, grace.  Law is grounded in a basic act of trust, in the meaningfulness of creation, and the possibility of justice. 

Live-blogging from Malibu: Brennan responds

Patrick Brennan responds to Prof. Hunter's paper:

Law is not just about power.  It's also about authority, which is legitimate power, and it's up to human action to make it legitimate by deriving it from sources beyond law itself that are relatively independent and objective.  Hunter takes a minimalist view of the natural law, relegating it to one footnote, and noting that people have found it very difficult through the centuries to know the natural law.  Indeed.  Historically the Church has taught that the divine law is available to assist us in our understanding of the natural law, which can be difficult to ascertain due to our fallen state.  So we need institutionalized sources of understanding the natural law and the good.  The Church, through the Magisterium, provides such a source, making it possible for humans to access the natural common good and the supernatural common good.  Expanding the realm of the possible requires us to take seriously the possibility of reinfusing our law with the insights of the Judeo-Christian tradition.  It may seem like a long shot, but one of the heresies under which we live is that the notion that "the supernatural is finished."  If we have hope, that hope should lead us to recover the sources of authority in our living, and allow those sources of authority to unfold in human law. 

Live-blogging from Malibu: James Davison Hunter on the common good

This morning at Pepperdine's fabulous religious legal theory conference, we are kicking off with what promises to be a productive exchange on law, religion, and the common good featuring James Davison Hunter, Patrick Brennan, and Zachary Calo.  What a better time for some weekend live-blogging?

Prof. Hunter kicks things off.  Here is a (very) rought outline of his comments:

The shared narrative of secularization drives both conservatives and liberals, leading them to approach the relationship of law and religion as zero-sum game.  But now we are seeing the debunking of the secularization thesis, and this may change the terms of the debate about the relationship between law and religion.

Post-secularity brings us to recognition that secularity is not a value-neutral proposition.  The distinctions between law and religion as separate spheres are overdrawn.  The state cannot be neutral toward the public good, and the secular is not neutral; it is also a particular normativity.  Tension, conflict, and violence are inherent to pluralism, and the state always takes sides.  Difference tends to be absorbed into new working agreements about the common good.

Arguably the most important way pluralism expands today is in moral and metaphysical differences -- e.g., abortion.  They are metaphysical because they are rooted in different worldviews.  Can late modern American society aborb differences as deep as these?  We don't know yet.  The state no longer plays role of limiting or containing pluralism; now is a free agent whose patronage is intensely sought after by the parties.  Conflict is between those who have competing understandings of the good society, and the battle envelops the First Amendment.  Progressives want a broad definition of religion for Establishment purposes and a narrow definition for Free Exercise purposes; conservatives want the opposite for both.  The First Amendment battle is geared toward what consensus over the good will look like.

Two possible directions that we can take: 1) We will see a hardening of the lines of conflict, with laws less a tool of justice and more a way of forcing compliance.  2) The alternative would be to recognize that power of state is unstable and unsustainable source of social order.  Because state is clumsy instrument rooted in coercion, it will never address the human elements that make these problems poignant in the first place.

For law to be about more the power, current conflation of public and political must be disentangled.  Law itself may not be able to offer this path, but law, policy, and politics must protect space where culture, in its generative capacity, is free to do its work.  We would need broader understanding of religion for both Establishment and Free Exercise purposes.

Oscar Watch

On the heels of Mary Leary's powerful reminder of how our culture of celebrity worship can obscure and undermine our vision of the dignity of the person (particularly of women), I sort of hate to admit where I've spent last Saturday  & will be spending tomorrow -- my traditional best-picture Oscar nominee movie watching marathon with my son.  But, that being said, here are a couple of random observations about Catholic (and even one legal) aspects of this year's nominees.

First, my son & I both agree that this year's slate of nominees is remarkable for its relative wholesomeness -- many of the movies focus on the importance of the bonds of love, and the overwhelming importance of families in our lives.  Though many of the families portrayed are broken in various ways, the brokenness tends to be acknowledged by the characters as a bad, rather than celebrated as a good, and the ideal of the family toward which so many of the characters are striving in these movies tends to be something very compatible with the Catholic notion of family.

Second, though Tree of Life does appear to be profoundly suffused with Catholicity -- except maybe towards the end where I think it might veer into new-agey-ness (though one of my students who is currently exploring entering the Benedictine order disagrees with me there) -- I think it's a terrible movie.  It might be a great graduate school seminar, but it's a tedious movie.

Third, I enjoyed The Descendents much more than I expected.  I was entranced by the movie's theme of stewardship and our responsibility for what (and whom) we are given to care for in this world.  And what Catholic lawyer wouldn't be tickled by a movie that uses the Rule Against Perpetuities to help make the point that the things (and people) entrusted to us are given to us for a limited time?

Fourth, The Artist is a perfect jewel of a movie.  Yes, it's a silent, black & white movie.  But it's a magnificent piece of art, and utterly, thoroughly charming.

Finally, what Oscar-related post of mine would be complete without a reference to the nun who kissed Elvis, Mother Dolores, the Hollywood starlet who gave up fame and her fiance to answer God's call to the cloistered life of the Benedictine Abbey of Regina Laudis?  Well this year, she's going to actually be at the Oscars!  Her story is the focus of an Oscar-nominated best documentary short film:   God Is the Bigger Elvis.  Oh, wouldn't it be a grand sight to see her striding down that Red Carpet in full habit?

A Different Spin on Dignity, the Church, and the Government

There has been much discussion lately, deservedly so, of the need for the government to reflect a level of morality, or at least respect deeply held religious beliefs with respect to fundamental issues of life. Indeed, much of the discourse regarding threats to religious freedom in the last several weeks has included dialog around women, their rights, their dignity, and the dignity of all life. This is an important discussion in which we see tension between media messaging, governmental actions, and some of the teachings of the Catholic Church.

I would like to turn that discussion to another area. Here the government's criminal law and the Church stand together. If this week is any example, together they wage a battle, perhaps a losing one, with our culture of violence. This too involves issues of dignity, autonomy, and life itself – it is the dark world of domestic violence.

The Commonwealth of Virginia finds itself the setting for two dramatic domestic violence sagas. The Commonwealth and all of metropolitan Washington have been following the trial of George Huguely who was convicted this week of second degree murder for the killing of his former girlfriend and fellow University of Virginia classmate, Yeardley Love. In so doing, the jury concluded that Huguely caused her death by blunt force trauma to her head after he violently put a hole through her bedroom door and physically attacked her. His statement to the police, while minimizing the violence, included an admission to kicking in her door, shaking her, and holding her to the floor to "calm her down." The case included a history of violence and threats by Huguely against Love. Consequently, it has been a "teaching moment" for parents of young girls about the dangers of domestic violence and the realities of the often overlooked area of teen dating violence. This tragic story has been a reminder of need to recognize the signs of a violent relationship and to intervene to protect the victim.

This is an area on which the Church and the government stand together. The state condemned the defendant's actions and pursued justice against Huguely despite his privileged life. If Henry Hart is correct and a conviction is "the moral condemnation of the community," the jury did so as well. In 1995, John Paul II in his Letter to Women clearly condemned violence against women as an affront to their inherent dignity.

When it comes to setting women free from every kind of exploitation and domination, the Gospel contains an ever relevant message which goes back to the attitude of Jesus Christ himself. Transcending the established norms of his own culture, Jesus treated women with openness, respect, acceptance and tenderness. In this way he honored the dignity which women have always possessed according to God's plan and in his love. As we look to Christ at the end of this Second Millennium, it is natural to ask ourselves: how much of his message has been heard and acted upon?

Well, if the other Virginia story is any measure, not much of this message has been heard.

Virginia also is the home of popular singer Chris Brown, currently in the middle of his 5 year probation for felony assault of his then girlfriend, the even more popular singer, Rihanna. In 2009 he pled guilty to severely beating her which, according to the search warrant affidavit in the case, included attempting to force her from a vehicle, shoving her head against a window, repeatedly punching her in the face, biting her, choking her to such an extent that she began to lose consciousness, and threatening to kill her. Again, here the government stood behind the dignity of women by pursuing felony criminal charges against Brown, notwithstanding his prominence. Yet half way through that probation, the Grammy's have featured him and honored him. Furthermore, he and Rihanna have leaked remixes of songs in which they collaborate together. Rihanna's remix is particularly disturbing, and too explicit for this blog. Suffice it to say NPR described the lyrics as "blurr[ing] the line between pleasure and pain, and could be interpreted as alluding to Brown's assault of her."

From this carnage, parents attempt to act upon John Paul II's 17-year-old message and resurrect a teaching moment. Such a moment can lead to powerful opportunities to help protect girls from the dangers of domestic violence, to help them recognize that it affects even the most famous and privileged, and to engage bystanders in appropriate responses. However, the culture provides an alternative message. These two extremely popular performers (not to mention the industry behind them) contribute to a different dispatch to their teen followers: rather than end the violent relationship – continue collaborating, dismiss the violence against women, exploit the scandal, and reinforce gendered stereotypes that suggest such violent assaults are at best excusable and at worst somehow the fault of the victim. Given this kind of culture, is it any wonder that a college student quoted in the NPR story referred to this recent collaboration as indicating "love?" Even more disturbing, teens assembling for a fall 2011 Brown concert in Baltimore, Maryland blamed the "incident" on Rihanna's. Baltimore…not far from where Yeardley Love attended high school. No doubt several will wonder, what is the harm? One measure of the result of this social messaging is this: after the Grammy win- several documented tweets from young women stating, "Chris Brown can beat me."

So as we wrestle with these tensions between government and people of faith, it is a reminder that, even when on the same side of an issue, such solidarity is not enough to affect change. We must also combat the social messages that perpetuate the lack of dignity afforded to all. February's role as Teen Dating Violence Awareness Month is brought all the more sharply into focus with these examples of how far our society still has to progress in order to ensure the life and dignity of our young women. Perhaps we would do well to remember and share John Paul II's words in Mulieris Dignitatem, that "woman cannot become the "object" of "domination" and male "possession.""

 

 

Another District Court Finds DOMA Unconstitutional

Yesterday, Disctrict Court Judge Jeffrey White granted the plaintiff's summary judgment motion and ordered OPM to enroll the same-sex spouse of a federal court employee in its benefit program in a 43-page opinion finding DOMA to be unconstitutional on equal protection grounds. White was a George W. Bush appointee.

See http://seattletimes.nwsource.com/html/nationworld/2017573133_gaymarriage23.html and --- F.Supp.2d ----, 2012 WL 569685 (N.D.Cal.)

HHS vs. OWS: On the Prudence in First Amendment Jurisprudence

One of the loveliest upshots of that Friday and weekend work with the New York Fed that I mentioned two days ago has been the opportunity that it has afforded to spend time with, get to know, and ultimately join some of the banking and economic policy committees of the OWS movement.  (Zuccotti Park is but two blocks from the Fed and my little Wall Street apartment.)  In this connection, like very many people across America and the world, I thought Mayor Bloomberg's 'crackdown' on the movement this past November wrong-headed.  One upshot of that conviction was this OpEd published in the New York Daily News at the time, a longer rendition of which was posted on Dorf on Law here. 

It strikes me now that there is an instructive analogy to be drawn between that case and the case of the first rendition of the HHS's mandate - 'Mandate 1.0' - that we've all discussed here over the past several weeks.  The link has to do with the 'prudence' one might hope to find in such government actions as sometimes implicate First Amendment jurisprudence or the values given expression in that jusrisprudence.  Pursuant to this prudence, wise government functionaries accommodate exercises of First-Amendment-implicating freedoms even when not, strictly speaking, constitutionally required to do so.  Why do we hope, as I put it, to find this form of prudence in government decisions?  I think there are are least two complementary reasons.  One is that our political society at large often learns much from that 'witness' which is the flowering and flourishing of 'alternative' takes on many practices and lifeways that majorities have come to take for granted.  Another is that individual citizens often grow and flower as human souls both through witnessing and through participating in such experiments - recapitulating, in their less fateful and momentous but nevertheless important ways, the transformative experience of the 'upper room.'   

For my part, I've found the inspiringly earnest, insistently pluralistic, and above all the determinedly democratic egalitarian culture that flowered in Zuccotti Park a particularly salutary case in point - so starkly so that I very much hope those who are reading this post will read the descriptions provided in the two articles linked to above.  (The full length version at Dorf on Law includes brief description of the 'Tree of Life' at which multiple faiths were officially represented and honored in Zuccotti, including that of the many members of the Catholic Worker movement who were present throughout the 'occupation.')  But likewise important cases in point are, quite often, the lifeways and worldviews lived and given 'witness' by the healthcare-providing, education-supplying, and other institutions founded by our many faith communities.  Hence my provisional welcoming, along with that by many others, of the HHS's recent announcement that Mandate 2.0, once more fully specified, will indeed be accommodative.  I await that further specification as eagerly as I do the return of the 'Occupiers' to Zuccotti Park come this spring.   

 

On the Importance of Vatican City

David Quinn writes, in The Independent:

Many people no longer seem to have a clue why the Catholic Church should also have a state that is called the Holy See. Some of us seem to imagine it is purely for reasons of vanity.

But only someone lacking the faintest knowledge of church history could think such a thing because all down the centuries rulers have sought to bend popes to their will. . . .