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, June 25, 2014

Irony and Tragedy: Practicalities

This is the second of two posts responding to Tom's post below about irony and tragedy. In the first, I tried to lay out what I perceive as some of the conceptual differences between a tragic and an ironic approach generally with some application to more theoretical issues in the interpretation of the religion clauses. In this one, I try to address some of the challenges that Tom poses about the resources (or lack thereof) that tragedy might draw on for practical purposes.

Tom argues that irony has various practical advantages over tragedy inasmuch as it provides a resource for issuing challenges and for striking deals. He raises the arguments that he and others have been making on behalf of religious exemptions as examples of the critique from irony. And he suggests that a tragic view may not offer the same kind of practical resource because it often denies that the values advocated by one side in a conflict are commensurable with the values championed by the other side.

These are all fair points. Tom is right that tragedy opens up the domain of incommensurable values. Tom is also right that the tragic view will be far less amenable as a resource for the sorts of critiques that he argues have been important.

But I wonder very much whether the ironic critique is…true.

Continue reading

June 25, 2014 in DeGirolami, Marc | Permalink

Theologians comment on "money in politics"

As part of the Auburn Applied Theology series, a new collection of short essays, called Losing Faith in our Democracy, is out.  The report is billed as a "theological critique of the role of money in American politics," and the contributions come from Protestant, Catholic, and Jewish theologians.  I have not read the essays, though I quickly skimmed the ones by William Cavanaugh and Charlie Camosy, which I recommend.

My own view is that, generally speaking, the "there's too much money in politics" claim is more often asserted than established -- how much, after all, is the right amount?; that the urge to regulate campaign speech, spending, and contributions usually reveals and implements a goal of securing an advantage for one's preferred political outcomes; that complaints about the role of "corporations" or about the "fiction" that "corporations are people" too often fail to deal with the reality that not only big businesses but also charities, unions, tribes, churches, political parties, and interest groups also use the corporate form; and that claims about the "distorting" effects of money on politics usually pay insufficient attention to the many other ways in which the content and quantity of political speech and activism are shaped, inflated, dampened, and distorted.  But, like the man says, "that's just me, I could be wrong."  (I should not, by the way, that the above observations do not apply to the Cavanaugh and Camosy essays in the report, which raises important issues.)   

June 25, 2014 in Garnett, Rick | Permalink

Irony and Tragedy: Concepts

Thanks to Tom for his post and his very good questions. Tom and I have been having this discussion for a good while and it is a pleasure to talk together again. Several years ago, Tom put together a wonderful conference on Niebuhr, Christian realism, and law at the University of St. Thomas. I wrote a paper for that conference that I never published on the differences between tragedy and irony, and Tom’s post made me look back at it.

My thoughts about Tom’s post are in two posts. The first post concerns the conceptual difference between tragedy, comedy, and irony as I understand the terms. The second post addresses some of the more concrete practical challenges and questions Tom poses.

This post is long, as is the next one. For the impatient reader, the quick version is that I am a tragedian and not an ironist because I believe that tragedy better describes the nature of conflict in the world, or at least in that corner of the world that Mirror of Justice contributors sometimes think about, the law of religious freedom. Deep and true conflict, and not simply the appearance of conflict that awaits the ironist’s clever harmonization, is our condition. The tragic perspective helps us to appreciate the true breadth of the chasms that separate us—chasms that, in our day, are expanding. And that is why, much as I appreciate the virtues of the ironist, and much as I admire the efforts of Tom, Rick, Doug Laycock, Robin Wilson and others to reach the sorts of agreements Tom mentions, I believe that those agreements are at best temporary, pragmatic settlements. That is not to denigrate them at all: indeed, I believe that Niebuhr himself took little more than a series of pragmatic micro-deals to be the concrete political expression of his ironic Christian realism. Negotiating conflict sensibly is no small feat. But, to the extent they have been achieved (which is, regrettably, not often enough), those agreements are not larger victories of principle. They do not tell us much at all about the commensurability of the clashing values. And their fragility and evanescence is some evidence that tragedy, not irony, is the deep force at work. Though I do believe that the tragic view has something to say about conflict resolution—something different than what the ironist says—the reason to be a tragedian is not to resolve conflict but to perceive as completely as possible the nature and depth of our divisions. They are very great.

Concepts.  What are we talking about in using these terms? Let me focus first on Niebuhrian irony, and then contrast it with a tragic view.

Continue reading

June 25, 2014 in DeGirolami, Marc | Permalink

IRS admits guilt in a gross act of abuse of power

Perhaps the politicization of the IRS was inevitable. In any event, the agency is now completely out of control and has become an active threat to the integrity of our political system and the liberty and privacy of the American people. Our nation should move as expeditiously as possible to a different system of taxation for funding the federal government, one that does not create so many opportunities for the abuse of power. I do not have settled views as to which of the various alternatives would be most suitable; nor, I believe, do most Americans. It strikes me as time for a national debate on the subject. I would very much like to hear the strongest arguments for and against the different options.

The IRS has agreed to pay $50,000 in damages to the National Organization for...
Washington Free Beacon

June 25, 2014 | Permalink

Tuesday, June 24, 2014

Neglect of Foreign Policy is Never Benign: A Lesson From Iraq

On the Mirror of Justice, we will never reach common ground on whether the invasion of Iraq under President George W. Bush was a terrible mistake or a difficult necessity.  We will not agree about whether the exit of troops from Iraq according to a timetable set by President Barack Obama was a welcome end to combat (for Americans anyway) or a reckless step that risked reversal of any progress that had been achieved in that country.  And we certainly will not reach anything approaching a consensus about what the United States should do now, if anything, by way of military, diplomatic, and international measures, while more and more of Iraq falls under the dominion of brutal terrorists.

Iraq-CIA_WFB_MapLet us, however, pause for a moment in our debates about general Iraq policy in the past and specific policy responses to the current crisis.  Surely as Catholic thinkers, we can jointly reaffirm that benign neglect in foreign policy is not an option.  Indeed, neglect is never truly benign.

Yes, we will continue to disagree among ourselves on what form of engagement is most consistent with our values and most prudential in operation.  But we can and should endorse affirmative, meaningful, and continuous engagement by the United States in some way with the rest of the world, most definitively including troubled regions.  As a matter of national self-interest, dedicated attention to events beyond our borders is crucial.  But it is also demanded by our moral commitment to the greater good and to the dignity of every person across the globe.

Those of us privileged to participate on the Mirror of Justice are all over the map on questions of foreign policy.  We hold a wide range of views on whether and when the United States should intervene with military power in troubled regions around the world.  We do not share a common belief in the wisdom or efficacy of international institutions on matters of world and regional security.

But I believe I can say with confidence that none of us advocates a withdrawal into isolationism or would accept an “America First” attitude, in which we would avert our eyes to the suffering of those afflicted by unrest or oppression in faraway places.  “Live and Let Die” was a catchy title for a James Bond film (and the accompanying Paul McCartney song).  Catholic concepts of public responsibility and human dignity leave no room for such abdication.

Now Barack Obama is hardly the first President to appreciate that foreign affairs do not top the list of concerns for most Americans, who will always put bread-and-butter issues first (for good or ill).  And seldom do events overseas prove to be decisive in American elections.  While public dissatisfaction with President George W. Bush’s handling of the war in Iraq played a minor role in President Obama’s election victory in 2008, the financial crisis and economic collapse were the deciding factors.  As the 2012 campaign demonstrated, the Obama team understood that domestic matters usually will lead in political calculations.  Moreover, then-state-Senator Obama had consistently opposed the war in the Iraq and called for early withdrawal, an opposition that was a more significant element in his nomination victory over Hillary Clinton.

In sum, President Obama’s “eager[ness] to put Iraq in America’s rearview mirror,” as Peter Beinart puts it, was understandable.

Fatigue, however, is not a policy.  Believing that a particular policy of engagement was a mistake does not justify substituting a new policy of non-engagement.  While weariness about a nagging problem naturally leads to avoidance, disregard usually proves counterproductive or even dangerous.  More often than not, we'll find the ignored problem thrust back into our faces, at a most inopportune time and more bothersome than before.

As Peter Beinart explains in a pointed but well-balanced analysis in The Atlantic today (here), President Obama has largely ignored Iraq, not only in military terms but also in diplomatic and other ways.  Beyond withdrawal of troops, he has been delinquent in setting and energetically pursuing a positive Iraq policy.  Importantly, the issue is not whether the policy is right but whether there really was any policy at all.  Those responsible for foreign policy within the administration, and especially those in the diplomatic corps, have warned repeatedly that indifference and diplomatic apathy could bring deterioration in Iraq.  But to do something more concerted would have “meant investing time and energy in Iraq, a country [the Obama Administration] desperately wanted to pivot away from.”  And so we arrived where we are today.

The unraveling situation in Iraq proves once again that neglecting troubles is likely to produce the opposite of what we desire — a crisis that cannot be ignored.  And if the unfolding human tragedy were not enough to demand our attention, the rise in power and resources of an organized terrorist bloc is unlikely to be confined to the region of Syria and Iraq.  If we were to suffer another horrific terrorist attack on American soil, traced back to the terrorist forces rising in Iraq, a future President may have to consider sending American troops back into the deserts of Mesopatamia.  Let us pray that day does not come.

Again, like the American people generally, the Mirror of Justice community remains sharply divided on questions about the wisdom of military policies inIraq under the last two administrations.  But that disagreement should not overshadow an agreement on the need for vigilance and perseverance, whatever may be the policy formulation.  We surely have learned again the lesson that withdrawal and inattention leave us in a world of hurt.  At the very least, let us hope the lesson of neglect in foreign policy learned in Iraq does not come too late for the future of Afghanistan.

June 24, 2014 in Sisk, Greg | Permalink


Hearty congratulations to Mark Movsesian and our own Marc DeGirolami on their success in creating at St. John's University a center that would go on, in a very short time from its founding, to host a rich conference on law and religion at Rome, indeed in the Vatican. Wow!  It's amazing what a Catholic educational institution can do when its members are given the freedom institutionally to raise and address the serious questions that actually matter for the salvation of souls.  

Turning to the particulars of the event itself, I do wonder how to resolve the ambiguities in the following quoted words spoken by Pope Francis in introducing the conference:

He called religious freedom “a fundamental right of man.” It is “not simply freedom of thought or private worship,” but “the freedom to live according to ethical principles, both privately and publicly, consequent to the truth one has found.”

As I say, there are ambiguities in the quoted words.  Is it in fact morally required -- or even allowed -- of states that they permit or facilitate the "public[]" exercise of "the truth one has found"?  Of course not.  Because a soul, even an earnest seeker, might have "found" "truth" that is in fact a dangerous falsehood, even on Mill's account.  So, is the Pope asserting that the *public* "freedom" he mentions is in fact limited to *true* "ethical principles"?  Okay, then, but what gloss does the Pope intend, if any, on Dignitatis and the Catechism on "public order" and the "common good," respectively?     

June 24, 2014 in Brennan, Patrick | Permalink

Reflections on "International Religious Freedom and the Global Clash of Values"

Following up on my post below, I thought to add a few thoughts about some of the themes that emerged from the presentations on international religious freedom at our conference in Rome.

The keynote address was delivered by the Berkley Center’s Tom Farr, whose primary claim was that in order for international religious freedom to thrive as a human right, we need a deeper grounding--both principled and pragmatic--of the importance of the right of religious freedom as both an anthropological reality and as a practical necessity. I had the honor of moderating Tom’s talk and asked him whether in this particular climate what was needed was a thicker account of religious freedom or instead an (even) thinner account. He gave a thoughtful answer reflecting both the need for deep structures of justification and the difficulty of achieving consensus about them.

The first panel concerned the politics of international religious freedom and included the United States Ambassador to the Holy See, Ken Hackett, the United Nations Special Rapporteur on Freedom of Religion or Belief, Heiner Bielefeldt, and Pasquale Annicchino of the European University Institute. It was in Dr. Bielefeldt’s talk that a useful tension began to emerge among some of the speakers--between those who were bullish or optimistic about the prospect that international law can effectively promote religious freedom and those who were a little more skeptical. Dr. Bielefeldt falls into the more optimistic camp--a good thing indeed, given his position. He emphasized the difference between the promotion of religious freedom in order to advance civic peace, on the one hand, and its promotion in order to vindicate a basic human right, on the other. Here I was reminded of the controversial “civic peace” justification in the American law of religious freedom and that Rick has written about so well.

The second panel dealt with comparative perspectives on international religious freedom. The perspectives compared included those of the member states of the Council of Europe and of Italy specifically. I was particularly interested in Marco Ventura’s lucid presentation about the difference between divergent and convergent approaches to religious freedom among and across European member states. Professor Ventura described the move toward convergence and argued for even greater convergence than has already been achieved. I had some questions about this coming from a country that has also struggled with the issue of convergence and divergence in the constitutional law of religious freedom. Again, the tension between globalism and regionalism was in evidence in a slightly different way.

The third panel concerned Islamic and Christian perspectives on international religious freedom, and included presentations by Abdullahi Ahmed An-Na’im, Olivier Roy, and Nina Shea. Here the primary point of tension involved the causes or roots of religious persecution of these two major religious groups. And here, too, there was skepticism, principally from Professor An-Na’im, about the efficacy of human rights regimes to protect religious freedom. “There was a world before international human rights, and there will be a world after international human rights,” he said.

In all, a very rewarding set of presentations.

June 24, 2014 in DeGirolami, Marc | Permalink

Pope Francis Opens Our Conference With Remarks on Religious Freedom

My colleague, Mark Movsesian, has the report. I will have a bit more on the substance of the conference shortly (and then on to Tom!).

Suffice it to say that it was a great honor to meet Pope Francis and to hear his thoughts about the condition of religious liberty around the world. When the Pope's talk is translated, I will make it available here. And here is an English-language video report on our audience and the Pope's statement about religious freedom and our conference.

June 24, 2014 in DeGirolami, Marc | Permalink

Monday, June 23, 2014

Tragedy, Irony, and Religious Freedom

For several years Marc and I have had occasional discussions about whether the conflicts in religious liberty—and perhaps in many other areas of constitutional law or public policy—are best perceived through the lens of a “tragic vision.” Marc’s excellent book argues that judges should have a sense of tragedy in that they recognize that state-religion disputes involve incommensurable values all of some worth, meaning that decisions in many cases unavoidably require the sacrifice of some goods. Continuing the analogy to dramatic genres, he contrasts the tragic sense with the comic sense, in which there is one metric of good by which outcomes and resolutions can be judged (and in a comedy things come out harmoniously in the end). Marc reacts, rightly I think, against the tendency of many church-state analysis to make tough questions seem simple, which inevitably involves giving short shrift to valid interests and claims on the other side.

Let me suggest, as I have to Marc over the years, that the sense of irony is as important as, or maybe more important than, the sense of tragedy. I don’t mean “irony” in the current sense of smirk, snark, detachment, or hipness. I loved David Letterman from the beginning, but this is more serious business. I mean it in the sense developed by Reinhold Niebuhr in The Irony of American History (1952), in which he argued that America, although in the moral right overall in fighting against Communism, would fall (indeed, had already fallen) into some of the same vices at its foes, because it did not practice humility and self-examination. Niebuhr described the biblical vision in which human “pretensions [to goodness] are the source of the ironic contrasts of strength leading to weakness, of wisdom issuing in foolishness,” and “virtue turning into vice”:

Continue reading

June 23, 2014 in Berg, Thomas | Permalink

Reese and Winters on the upcoming ENDA-type executive order

The White House is, according to reports, working on an executive order that would ban sexual-orientation discrimination by federal contractors.  Fr. Tom Reese and Michael Sean Winters have detailed posts at NCR discussing the matter.  

June 23, 2014 in Garnett, Rick | Permalink