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.

Saturday, August 31, 2013

President Obama should make the call, before making the call

Before finally making the call about what to do in Syria, I pray that President Obama will call President George W. Bush and request his advice on the bomb or missile attacks he is contemplating.  I know President Bush.  He is a good and gracious man.  He would take President Obama's call and give him the best advice he has, based on his own experience, including what he learned from his own mistakes. He would not hold it against President Obama that Obama has, for his own political reasons, demonized him and blamed him for . . . well, for just about everything his own administration has been criticized for.

I have never met President Obama, but I suspect that he and those close to him believe--quite wrongly--that President Bush is a dummy and that President Obama is vastly more intelligent.  He and they may therefore believe that President Obama has nothing to learn from President Bush.  That attitude in itself, if I am right about it, is reflective of the arrogance that got President Obama into this pickle in the first place.  "Pride" really does "goeth before a fall."  But I hope that President Obama will, on this occasion, with so much at stake for the people of the Middle East and for the world, swallow his pride and call President Bush. The unintended side-effects of an effort to punish Assad--an evil man, to be sure--while leaving him in power (so that radical Islamists among the rebel forces will not suddenly find themselves ruling a key country and controlling its state apparatus), could be catastrophic. According to the Washington Post, this is what President Obama's own military advisors are telling him. I suspect that President Bush would reinforce that advice, and perhaps offer some points of his own that President Obama should consider.

Of course, I cannot say with anything approaching certainty precisely what advice President Bush would give his successor. Just this week, while offering no public advice to Obama, Bush has noted that he "is no fan of Assad," and that if Obama moves forward with military action, he will "have the best military on earth backing him up." And, of course, I have no idea whether Obama would take Bush's advice, whatever it is. But this is a time for the current President to seek guidance wherever he can best get it, and I have no doubt that there is guidance to be had from the man who sat for eight years in the seat in which he is now sitting, and who made some decisions that turned out well and others that turned out badly.

It may be that President Obama will have to endure some embarrassment in order to do the right thing in the case of Syria. His rhetoric has placed him out on a limb. Climbing safely back may take personal humility of a sort that the current President has not previously displayed. Here, too, talking to President Bush might help. George Bush, knowing the burdens of the presidency, and being a man of deep faith, might just be able to assist Barack Obama, man to man, in developing the perspective he needs to do the right thing, even at the cost of some personal embarrassment.

August 31, 2013 | Permalink | Comments (0)

Torture as a Human Rights Issue

As many MOJ readers know, the position of Christians on torture--the position, that is, of those self-identified Christians who have declared a position on torture--has been quite mixed.  It is not the case that religious believers are generally unconditionally opposed to interrogational torture.  Evangelical Christian scholar David Gushee has lamented “the formation of a sizable and apparently permanent American Christian constituency for torture.”  David P. Gushee, “The Contemporary U.S. Torture Debate in Christian Historical Perspective,” 39 Journal of Religious Ethics 589, 595-96 (2011).  On the implications of Christian teaching for torture, see, in addition to the article by Gushee, Jeremy Waldron, “What Can Christian Teaching Add to the Debate about Torture?,” 63 Theology Today 330 (2006); Jean Porter, “Torture and Christian Conscience:  A Response to Jeremy Waldron,” 61 Scottish Journal of Theology 340 (2008).

I have just posted to SSRN a paper that may be of interest to some MOJ readers:  "Interrogational Torture as a Human Rights Issue:  A Brief Further Reflection on the Morality of Human Rights".  The paper is available for download here.  This is the abstract of the paper:

The morality of human rights consists not only of various rights recognized by the great majority of the countries of the world as human rights, but also of a fundamental imperative that directs “all human beings” to “act towards one another in a spirit of brotherhood.” The imperative — articulated in the very first article of the foundational human rights document of our time, the Universal Declaration of Human Rights (UDHR) — is fundamental in the sense that it serves, in the morality of human rights, as the normative ground of human rights. I have explained all this at length in an earlier paper, “The Morality of Human Rights” (2013), which I have posted to SSRN: http://ssrn.com/abstract=2274381.

In the earlier paper, I addressed (inter alia) this question: Why should one take seriously the normative ground of human rights; that is, what reason or reasons does one have, if any, to live one’s life in accord with the imperative to “act towards all human beings in a spirit of brotherhood”? In this brief paper — which serves as a kind of addendum to the earlier paper — I address a version of a related, followup question: Should we want governments always to “act towards all human beings in a spirit of brotherhood”, no matter what the consequences? Specifically, I address this question: Should we want governments never to subject a human being to torture, no matter what the likely consequences of not subjecting him (or her) to torture?

In the earlier paper, I explained that as the concept “human right” is understood both in the UDHR and in all the various international human rights treaties that have followed in the UDHR’s wake, a right is a human right if the rationale for establishing and protecting the right — for example, as a treaty-based right — is, in part, that conduct that violates the right violates the imperative to “act towards all human beings in a spirit of brotherhood”. Each of the human rights articulated in the UDHR and/or in one or more international human rights treaties is a specification of what, in conjunction with other considerations, the imperative is thought to forbid or to require. The right at issue in this paper — the right not to be tortured — is a specification of what governments must refrain from doing lest they violate the “in a spirit of brotherhood” imperative — lest they, in short, treat a human being inhumanely. Torturing a human being is an instance — indeed, a paradigmatic instance — of treating a human being inhumanely. The question-in-chief in this paper: Should we want governments never to subject a human being to torture, no matter what the likely consequences of not subjecting him (or her) to torture?

The conclusion I reach: Even if we assume that in some imaginable and sufficiently extreme circumstances it would be morally permissible — even, perhaps, morally obligatory — for government officials to subject a human being to interrogational torture, there are nonetheless conclusive reasons for lawmakers and treaty-drafters to make bans on torture exceptionless. It is optimal, all things considered, that laws and treaties do just what both the International Covenant on Civil and Political Rights and the Convention against Torture do: make the right against torture, even interrogational torture, nonderogable. There are conclusive reasons, that is, for laws and treaties to require that governments never violate the normative ground of human rights — that governments never violate the "in a spirit of brotherhood" imperative, that they never treat any human being inhumanely — even if we assume that it is not the case, as a moral matter, that governments should never violate the normative ground of human rights.

August 31, 2013 in Perry, Michael | Permalink | Comments (0)

Thursday, August 29, 2013

Syria: An Interventionist Questions This Proposed Intervention

I tend to be an interventionist when it comes to American foreign policy and our place and responsibility in the world.  In a dangerous world inhabited by tyrants who abuse their own people and threaten others, the one nation in the world with the greatest power to do something about it has a moral obligation to do something about it ― at least when it can do so effectively.

Of course, military force should be employed only when diplomatic efforts fail ― although diplomatic talks should not become mere cover for a tyrant to buy more time while continuing to massacre his people and shore up defenses against a military engagement.  And, to be sure, discretion and judgment are required, so as to be able to evaluate when the introduction of American force has a good chance of both immediate and long-term success or instead has the potential to make things worse.  I do appreciate that people of good faith and good judgment will make different calls, and indeed many on the Mirror of Justice would conclude that military intervention almost inevitably makes things worse.  Mindful of pragmatic concerns, I nevertheless think it often important to take direct action to achieve clear goals.  As I’ve said before, we should pray for peace ― but we should not accept the false peace of international indifference and passivity.

And I can provide the bona fides to demonstrate that my support for an interventionist foreign policy as a moral foreign policy has not been seasonal, depending on which party occupies the White House.  Being a Republican, I nonetheless praised President Clinton’s intervention for human rights reasons in Kosovo (questioning only the delay and the restriction to an air campaign as allowing too many more innocents to die before the end).  On the Mirror of Justice, I’ve supported President Obama’s intervention for humanitarian reasons in Libya, in a posting I openly titled “Thanking President Obama for Saving Lives in Libya.”  Again, my only criticisms were that the intervention was late in coming and was not sufficiently targeted to remove the tyrant (although fortunately that came later).

Indeed, as part of that earlier posting, I noted that near the end of his life, Pope John Paul II began to establish the case for military intervention for humanitarian reasons:

[A]n offense against human rights is an offense against the conscience of humanity as such, an offense against humanity itself. The duty of protecting these rights therefore extends beyond the geographical and political borders within which they are violated. Crimes against humanity cannot be considered an internal affair of a nation. . . .

Clearly, when a civilian population risks being overcome by the attacks of an unjust aggressor and political efforts and non-violent defence prove to be of no avail, it is legitimate and even obligatory to take concrete measures to disarm the aggressor. These measures however must be limited in time and precise in their aims. They must be carried out in full respect for international law, guaranteed by an authority that is internationally recognized and, in any event, never left to the outcome of armed intervention alone.

All that being said, I am quite uneasy with President Obama’s move toward military force being applied in Syria.  For the life of me (and I fear for the lives of many others in Syria and perhaps in the United States armed forces), I cannot figure out the actual substance of this President’s foreign policy toward Syria or how launching missile strikes or dropping bombs from planes for a couple of days will advance that policy.

Now if President Obama had a coherent Middle East foreign policy that promised to remove the tyrannical Assad regime and now had highlighted the atrocities against civilians including the use of chemical weapons as the immediate provocation for taking more direct steps toward that end, I might well be on board.  But he doesn’t, and he hasn’t.

And it may well be too late.  Two or three years ago, direct American support for the then-largely secular rebel movements might have toppled the Assad regime and replaced it with a moderate government that would resist radicalization and oppose terrorists.  But as the civil war has dragged on and on, as the United States and the so-called “international community” has dithered, and as the civilian population has been battered, slaughtered, and displaced, the opposition to Assad has become radicalized and increasingly composed of extremist elements affiliated with terrorists.

So why are we thinking about doing anything militarily at this point?

Is it just because President Obama feels the need to do something?  As K.T. McFarland writes, “It’s understandable that we want to ‘do something.’”  But that’s no justification for military action.

Is it because President Obama has laid down so many “red lines” that keep being crossed that he has boxed himself into a corner from which he cannot now escape?  George Will cynically writes that military intervention here “will not be to decisively alter events, which we cannot do, in a nation vital to U.S. interests, which Syria is not.  Rather, its purpose will be to rescue Obama from his words.”  Now I don’t share George Will’s view that it is not possible to “decisively alter events” (although it certainly is much more difficult now after years of delay).  But surely few believe that the limited military response that President Obama apparently is planning will actually change the course of events on the ground in Syria.

Is an air campaign over Syria designed to prevent the Assad regime from further use of chemical weapons?  That in itself would be a laudable goal.  But it is far from clear that a quick in-and-out air campaign could have that effect.  For one thing, the present thinking is that American forces could not target chemical weapons caches for fear of their accidental release.  Destroying helicopters might degrade the regime's ability to use chemical weapons, but probably not much.  Chemical weapons can be fired from small mobile missile launchers.  To truly be sure that we had eliminated chemical weapons, we probably need boots on the ground.  And President Obama will not take that bold step.  No one believes that option is even on the table.

In sum, I hear lots of strong words emanating from the White House about lines being crossed, and international law being violated, and messages needing to be sent.  But I hear very little that hangs together as a strategic policy for Syria generally or a specific plan of military action that makes a difference.  A couple of days of bombings simply doesn’t qualify.

So, for now at least and until a better policy and plan are articulated, count me as one interventionist who says ― not this time, not this place, and not for this reason.

August 29, 2013 in Sisk, Greg | Permalink | Comments (2)

Lest we forget.....

Over the past summer, I’ve been working on a fascinating project for the Minnesota Governor’s Council on Developmental Disabilities, which is working with the Twin Cities Public Television station to develop a “Disability Justice Resource Center” website  for lawyers and law students working on disability rights issues.   The Minnesota Governor’s Council itself already has an extremely robust website, with a wealth of resources for anyone interested in the history and current state of the disability rights movement.  Their two-part “Parallels in Time” presentation of the history of social attitudes toward people with disabilities and the rise of the disability rights movement starts from 1500 B.C., and is populated with fascinating pictures and videos.  The Minnesota Governor’s Council developed the “Partners in Policymaking ®” advocacy training program for people with disabilities and their family members over 25 years ago; since then it has been exported to over 35 states and a number of other countries.  (I participated in it in Indiana while I was teaching at Notre Dame.)  Their website has a number of fine (and free) on-line courses on disability advocacy, covering the history of the disability rights movement, independent living issues, education, and employment.

I kept thinking about this “Disability Justice Resource Center” project during yesterday’s celebration of the 50th anniversary of the March on Washington.  Much of the coverage of the events highlighted and analyzed how things have (or haven’t) changed for African Americans in the intervening 50 years.  The same sort of reflection is merited for people with disabilities, who continue to struggle to overcome both the challenges raised by their disabilities, and the challenges raised by social attitudes toward people with disabilities. 

 And these challenges are NOT limited to the subtle sorts of ADA challenges and biases alleged in many of the legal cases that tend to get the most media attention.  Case in point: the source of the funding for this particular project. In July 2009, three plaintiffs sued the State of Minnesota for its treatment of people with developmental disabilities at a facility in Cambridge, Minnesota. In December 2011, Federal District Court Judge Donovan Frank approved a settlement agreement that awarded the plaintiffs $2.9 million, shut down the treatment program, and required the State to “immediate and permanently discontinue the use of mechanical restraint (including metal law enforcement-type handcuffs and leg hobbles, cable tie cuffs, PlasticCuffs, FlexiCuffs, soft cuffs, posey cuffs, and any other mechanical means to restrain), manual restraint, prone restraint, chemical restraint, seclusion, and the use of painful techniques to induce changes in behavior through punishment of residents with developmental disabilities.  Medical restraint, and psychotropic and/or neuroleptic medications shall not be administered to residents for punishment, in lieu of adequate and appropriate habilitation, skills training and behavior supports plans, for the convenience of staff and/or as a form of behavior modification.”  After the settlement agreement funds were distributed to class members, Judge Frank ordered a cy pres fund be established for this project -- a public education campaign to break stereotypes about people with developmental disabilities.

A newspaper article about this settlement began as follows:

On Halloween night 1949, Minnesota Gov. Luther Youngdahl stood aside a bonfire outside Anoka State Hospital and, with fanfare, burned 359 straitjackets and hundreds of other restraints he said were sinister relics of a more barbarous time.

“By this action we say that we have liberated ourselves from witchcraft – that in taking off mechanical restraints from the patients, we are taking off intellectual restraint from ourselves,” the governor said.

Apparently, we forgot.

The more time I spend on this project, the more concerned I become that "we" are forgetting some of the most vulnerable among us.

August 29, 2013 in Schiltz, Elizabeth | Permalink

When former students return as hiring-committee members

Several times in recent weeks I enjoyed a (for me) new experience (but one that I know many other law-profs have had) -- former students (in these cases, students I taught during my first semester, in the Fall of 1999) were back on campus for on-campus interviews and meetings with current students.  I felt, well, (a) old ("Good Lord, was I teaching law in the 90s?"), (b) humble ("I cannot believe they let me teach law to this guy -- I didn't have a clue what I was doing.  Thank God it worked out for him!"), (c) proud ("Dang, this person seems happy in her vocation, and is thriving!  If I had anything to do with that . . . cool!"), and (d) grateful (both to the former students from coming by and re-connecting and to all those who made it possible for me to be in the position of helping with the students' education and formation).

August 29, 2013 in Garnett, Rick | Permalink | Comments (0)

"If you send your kid to private school, you are a bad person"

This piece, by Allison Benedikt (who also served up this little gem a while back), is -- on the one hand -- offensive, stupid, and scary for its statism.  On the other hand, she has a point (at least, I think one can extract this point from the piece):  *If* you send your child to a private school because you are fortunate enough to have the means to do so and you believe that a private school is more conducive to your child's development, safety, and happiness, but you oppose policies aimed at making it financially possible for parents who are not so fortunate and who have the same belief . . . well, I am not saying you are "bad", but you might have some soul-searching to do.

August 29, 2013 in Garnett, Rick | Permalink | Comments (1)

The March and Faith

It was an electric day here in Washington. This 50th anniversary of the March on Washington filled the city with energy as the participants and onlookers both reflected on the past and looked toward the future. So much has been and will be written about the day, that this post is in no way an attempt to capture the entirety of the day. Many will no doubt offer numerous and moving accounts with each having its own insight.

I would like to highlight one aspect of the news coverage of day that struck me as particularly relevant to MOJ and its mission. As a law professor at a religiously affiliated institution, I often encounter (as I am sure many here do) the argument that religion and faith have no place in policy, laws, or debate. Indeed, some have argued persuasively that a bias exists against religion, and indeed faith of any kind, playing any role in policy development. Professor Garnett noted a thread of this just days ago when commenting on some secular forces hijacking such public events.

However, as the country celebrated this March and its significance in a social movement, the prominent role spirituality and faith played in this day flies in the face of the position minimizing the integral role faith and faith based institutions can play. The power of faith goes far beyond the inspiring Dr. King, whose spiritual leadership soared throughout his work and transformed America. But the entire fabric of that day - from the biblical quotations, to the active role of organized churches, to the spiritual hymns that provided the background music – was fused with faith as a conductor of social reform. Even 50 years later the day began with prayer, progressed to a President invoking God as the source of dignity for all people, and continued with bells ringing from churches throughout the world. What is remarkable is not just that faith played such an integral role, but that it explicitly and openly did so in a public and prideful way.

To be sure many forces fuel and influence important social movements. Some of these forces are individual and others collective. Yesterday is a reminder of a portion of those forces. In a world perhaps resistant to any interplay between faith and policy, yesterday underscores that faith and faith institutions can play integral roles in the liberation of the oppressed and protection of the vulnerable. Faith can inspire; faith can fuel; faith can sustain; faith can guide…good stuff to remember for those of us fortunate to teach a generation of future lawyers, activists, and policy makers.

August 29, 2013 in Leary, Mary G. | Permalink | Comments (1)

The entirely predictable (and predicted) mainstreaming of polyamory

As anybody should have been able to see even as long as ten years ago, the project of mainstreaming polyamory is well underway.  Since there can be no ground of principle for rejecting multiple sexual partner relationships once the historic idea of marriage as the conjugal union of husband and wife is jettisoned in favor of the idea of "marriage" as sexual-romantic companionship or domestic partnership, it was "in the cards" (as social conservatives have been pointing out and candid social liberals have been acknowledging for at least a decade). Here's a sympathetic story about British polyamorists from the BBC (a reliable voice of the social liberalism in Britain).


August 29, 2013 | Permalink | Comments (0)

Delahunty on Tocqueville on Pantheism in America

You should not miss Robert Delahunty's most recent post exploring Alexis de Tocqueville's view that the logic of American democratic egalitarianism would eventually lead for many toward a religion of pantheism. And his prediction rings true in Ralph Waldo Emerson's transcendentalism and in Walt Whitman's poetry (I had forgotten the praise that Whitman lavishes on the stench of his own armpits). Just a small fragment of the post (but it's a treat to read it in full):

What about those democratic men and women who yield to the democratic “predisposition” and abandon Christianity? Here Tocqueville suggests that the “prevailing taste democratic nations have for general ideas” will lead them, not to the unity that some will find in Catholicism, but instead to pantheism:

Man is obsessed with the idea of unity. He seeks it in every direction; when he believes he has found it, he willingly rests in its arms. Not content with discovering that there is but one creation and one Creator in the world, he is still irritated by this primary division of things and he seeks to expand and simplify his thought by enclosing God and the universe in a single entity. If there is a philosophic system according to which things material and immaterial, visible and invisible within the world are to be considered only as the separate parts of an immense being who alone remains eternal in the continuous shift and constant change of everything which is within it, I shall have no difficulty reaching the conclusion that a similar system, although it destroys human individuality, or rather because it destroys it, will have secret attractions for men who live in a democracy.

Democracy at 521.

Tocqueville recoils from pantheism, even while admitting that it is “one of the most likely [metaphysical systems] to entice the human mind in democratic ages.” He denounces it as an idea that “naturally attracts and arrests [the] imagination [of democratic men] and nourishes their arrogance, while cosseting their laziness.” And he calls on all who are “smitten with the nobility of man” to “join forces and fight against this idea.” Id.


What evidence is there, we might ask, that the America of the present is tending toward pantheism?

The evidence, I believe, is not hard to find. Consider, e.g., our changing attitudes toward the environment. By this I mean, not primarily our concerns with pollution or resource depletion, but rather the much more fundamental changes in the ways we have come to think about man’s place in nature.

Ever since the Norwegian philosopher Arne Naess baptized it with a name in 1973, the “deep ecology” movement has exerted an influence on contemporary culture. See Arne Naess, The Shallow and the Deep, Long-Range Ecology Movement. A Summary, 16 Inquiry 95 (1973). The (originally) seven points in which Naess summed up “deep ecology” included discernibly egalitarian and pantheistic elements. Naess advocated the abandonment of “the man-in-the-environment image” and its replacement by “the relational, total-field image,” in which living organisms would be seen as “knots in the biospherical net.” He also urged “biospherical egalitarianism,” rejecting “anthropocentrism” in favor of “the equal right to live and blossom” for every form of life....Others have seen intimations of deep ecology in the works of such major thinkers as Martin Heidegger and the seventeenth century pantheist Baruch Spinoza.

Of course one might dismiss the deep ecology movement as culturally marginal and uninfluential. But do we not also see the signs of a kind of “practical pantheism” everywhere about us? Consider, e.g., our changing dietary habits (the preference for organic foods) or travel interests (eco-tourism). Let me conclude this essay by using what seems to me a particularly telling example: our changing burial practices.

Burial practices are especially revealing, I submit, because they indicate how a society implicitly thinks of human life, of death, of collective memory and individual fame, of an after-life, and of the relationship of the human body to the earth.

In his beautiful and moving book Last Landscapes: The Architecture of the Cemetery in the West (2003), Ken Warpole describes the recent, but growing, desire for “natural burial” in Britain and northern Europe. Proponents of natural burial, Warpole writes, “seek to create cemeteries that meld into the uncultivated landscape as quickly as possible, returning to a ‘state of nature’ as if the human presence on earth had never been.” At 191. And this, he rightly says, is “a presumption of astonishing radicalism”:

For the past 2,000 years at least, one of the principal functions of burial and funerary ritual – from the inscriptions and epitaphs in the Roman catacombs through to the cult of the headstone in the era of the Enlightenment – has been to leave, where possible, a permanent record for posterity of each individual life lived. Natural burial denies this function, at least with regard to any kind of design or inscription at the place of interment, though other forms of commemoration or record may take place elsewhere. This suggests that the strong desire to ‘be at one with nature’ and to leave no sign of burial behind is an unexpected and late-modern phenomenon, at least within Western culture, part of a new and unique kind of ecological consciousness, rather than a trace element of pre-historic or pagan belief systems.


Natural burial is philosophical pantheism woven deeply into the fabric and habits of a society. It expresses that society’s view of the inconsequentiality of the individual human being, and of its unconcern with the perpetuation of its own collective memory and identity. It is the handiwork of a society that sees human existence as merely a momentary perturbation of the natural order, an irritation on the earth’s surface. Ironically, the attitude of “letting be” that this kind of society displays in relation to nature is merely the photographic negative of the technological rationality that the deep ecology movement condemns as exploitative. If Tocqueville is to be believed, this is the type of society towards which we are drifting. Little wonder that he calls on all who believe in the “nobility” of man to oppose it.

August 29, 2013 in DeGirolami, Marc | Permalink | Comments (0)

Wednesday, August 28, 2013

Cavadini on Augustine on eros and marriage

Here's another Augustine-related link. This one is to "The Sacramentality of Marriage in the Fathers," by Notre Dame's John Cavadini. A short excerpt:

To Augustine’s mind, there is something naïve about a view of marriage that treats sexual desire as a relatively uncomplicated eros which education and ascetic living can easily channel into the pleasures of home and family. For Augustine, sexual desire as we know it now is anything but uncomplicated. To people accustomed to thinking that sexual desire and the pleasure it seeks are obvious and uncomplicated goods that contribute, in a straightforwardly positive way to the bonding and happiness of a married couple, Augustine’s views will look pessimistic. Yet Augustine would probably insist that it is simply realistic. Sexual pleasure is not a fixed quantity, unambiguously and obviously good as we experience it in a fallen world. 

August 28, 2013 in Walsh, Kevin | Permalink | Comments (0)