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.

Tuesday, November 17, 2015

A stunningly unfair attack on religious exemptions . . . and the creeping danger of "scare quotes"

In today's New York Times, there's this from Katherine Stewart (author of “The Good News Club: The Christian Right’s Stealth Assault on America’s Children."  Nice.)  According to Ms. Stewart, the longstanding practice in the United States of accommodating religion through exemptions turns out, actually, to be part of a plan to create a theocracy and, maybe, commit genocide.  Here's one of the more measured passages in the piece:

 When they hail religious liberty, they do not mean the right to pray and worship with other believers. Instead, the phrase has become a catchall for tactical goals of seeking exemptions from the law on religious grounds. To claim exception from the law as a right of “religious refusal” is, of course, the same as claiming the power to take the law into one’s own hands.

I suppose that the re-branding of religious freedom as "religious refusal" will be useful to the efforts and goals of some.  Of course, to claim exemption is not to "take the law into one's own hands" but is instead to invoke the law's protections; it is "the law" itself which has provided for the (legal) right to claim the exemption.  (To say this is not to say that religious freedom is a gift or concession or is not a human right; it's simply to point out that, again, in this country, our positive law itself provides a mechanism for claiming religion-based exemptions from the positive law.  As it should.)

I'm reminded of this quote, which a friend shared with me a few days ago:

"There are many ways of bracketing the normativity of normative concepts: . . or by ironically desiccating even the values of one's own culture, putting 'scare quotes' around value terms and sucking out their normative juices so that there can be no claim on one's life."
William Lad Sessions, Honor for Us: A Philosophical Analysis, Interpretation and Defense (Bloomsbury Academic, 2010)

November 17, 2015 in Garnett, Rick | Permalink

In Search of Civil Discourse

Randall Smith's two-part Public Discourse essay on our superficial and yet increasingly contentious civil discourse is well worth the read. His diagnosis is rich in reasoning borrowed from Alasdair MacIntyre, but even more compelling is his suggested course of remediation. He calls for a strong appreciation for "the logic of ordinary language" and the principles of classical rheteric--but also, importantly, for intellectual humility. How I wish we saw more of this across the board: 

We should want to be questioned by others, the way Socrates and his compatriots questioned one another repeatedly—about the strength of our arguments, about the ways in which we are using our words, and about our presuppositions. There is no doubt that “such waltzing is not easy,” to borrow a line from the poet Theodore Roethke. It can only be achieved by instilling in our students a love of the truth and the intellectual humility necessary for fruitful argument.

We are all limited. We all have presuppositions, many of them unexamined. And we can rarely predict the full scope of the consequences any of our proposals will have. This is why engaging with others is not only helpful, it is essential. And yet, to engage with others fruitfully, we cannot begin by dismissing them as unworthy of our rational attention.

We would be better off recognizing that what so often happens with all our proposals, no matter which side of the ideological divide we are on, is that we see clearly the good we want to achieve. What we don’t see as clearly, given the finite character of human imagination and our inability to see all the consequences of our actions, are the trade-offs and unintended consequences we don’t intend. This is where our intellectual sparring partners could do us a great service, if we let them, and if we could approach each other in good will. They may see precisely the problems that our own elaborate intellectual constructions are hiding from us.

So instead of merely “unmasking” the “hypocrisy” of others, what we should be cultivating self-awareness about are the potential weaknesses and limitations of our own proposals. This sort of humility differs from the moral relativism that tries to insist my position is no better or more true than anyone else’s. That attitude merely exacerbates the postmodern obsession with unmasking....

I often wonder at people who set up a straw man only to knock it over and then declare victory. How much better to have faced your opponent at his strongest and to have convinced him by the wisdom of your arguments and your witness to the truth of your position. It is perhaps better still to have learned from him the places where your own argument was weak. Best of all would be for both to have guided one another a step closer to the truth of things.

And then this on compromise: 

“Compromise” need not be a dirty word. It should involve the effort to search out what are the deepest and most important goods that one’s opponent is seeking. Compromise can be the art of seeing whether the goods that my opponent is seeking and the goods I am seeking can be reconciled and preserved, if not fully, then at least partially...

He concludes: 

If we want things like “peace” and “justice,” then these words had better stop being mere slogans we use to beat our opponents over the head with. “Peace” and “justice” begin with us and how we treat our opponents. To find them, we must achieve what the poet Wilfred Owen called “the tenderness of patient minds,” and resolve to listen carefully, judge fairly, and speak charitably,especially about those with whom we disagree.

I couldn't agree more. 

November 17, 2015 in Bachiochi, Erika | Permalink

Monday, November 16, 2015

Coddling in Higher Ed vs Classical Education

So glad Mike posted Ross Douthat's provocative piece on the university earlier today. The Atlantic published an equally insightful article in September entitled, "The Coddling of the American Mind." In it, constitutional lawyer and President/CEO of the Foundation for Individual Rights in Education, Greg Lukianoff, and social psychologist and NYU professor, Jonathan Haidt, look beyond the myriad ways in which "trigger warnings" and the like are short-circuiting the university's authentic mission to teach college students to search for truth among competing ideas. Instead they focus on the consequences of this new ethic to the students' emotional well-being, concluding that this sort of "vindictive protectiveness" is simply bad for mental health. 

Here is the list of "cognitive distortions" they analyze throughout the article, offering plentiful examples from universities across the country. (This list is included at the end of the piece.)

1. Mind reading. You assume that you know what people think without having sufficient evidence of their thoughts. “He thinks I’m a loser.”

2. Fortune-telling. You predict the future negatively: things will get worse, or there is danger ahead. “I’ll fail that exam,” or “I won’t get the job.”

3. Catastrophizing.You believe that what has happened or will happen will be so awful and unbearable that you won’t be able to stand it. “It would be terrible if I failed.”

4. Labeling. You assign global negative traits to yourself and others. “I’m undesirable,” or “He’s a rotten person.”

5. Discounting positives. You claim that the positive things you or others do are trivial. “That’s what wives are supposed to do—so it doesn’t count when she’s nice to me,” or “Those successes were easy, so they don’t matter.”

6. Negative filtering. You focus almost exclusively on the negatives and seldom notice the positives. “Look at all of the people who don’t like me.”

7. Overgeneralizing. You perceive a global pattern of negatives on the basis of a single incident. “This generally happens to me. I seem to fail at a lot of things.”

8. Dichotomous thinking. You view events or people in all-or-nothing terms. “I get rejected by everyone,” or “It was a complete waste of time.”

9. Blaming. You focus on the other person as the source of your negative feelings, and you refuse to take responsibility for changing yourself. “She’s to blame for the way I feel now,” or “My parents caused all my problems.”

10. What if? You keep asking a series of questions about “what if” something happens, and you fail to be satisfied with any of the answers. “Yeah, but what if I get anxious?,” or “What if I can’t catch my breath?”

11. Emotional reasoning. You let your feelings guide your interpretation of reality. “I feel depressed; therefore, my marriage is not working out.”

12. Inability to disconfirm. You reject any evidence or arguments that might contradict your negative thoughts. For example, when you have the thought I’m unlovable, you reject as irrelevant any evidence that people like you. Consequently, your thought cannot be refuted. “That’s not the real issue. There are deeper problems. There are other factors.”

The authors offer a few solutions, one of which is to educate incoming students in methods of cognitive behavioral therapy. Those with a Catholic imagination who are teaching in and leading Catholic universities would, I think, be able to come up with far better.

But the formation in mind and character that college students need to respectfully engage and evaluate competing ideas must start much earlier. Classical schools today--Catholic and Protestant, primary and secondary--are taking this effort very seriously. Here's the aspirational list we offer in our Academic Vision at St. Benedict's, a K-6 Catholic classical school I helped to found in South Natick, MA. 

So, what might children educated in the Catholic classical tradition look like?

They are able to discern beauty—in writing, in art, in music.

They are captivated by great books and the engaging characters and stories therein, rather than feel the need always to be entertained by electronic stimuli.

They can engage and take interest in ideas and principles, and the lifelong search for truth, rather than being consumed only by the acquisition of things.

They have an understanding of the historical context in which they live, instead of a bias toward the present and a false idea that moral progress is inevitable.

They can stand up and articulate the bedrock principles of Western civilization and of the American experiment in ordered liberty, rather than believing that assertion of feeling constitutes authentic argument.

They understand how characters are formed and good leaders borne, rather than being pulled by cultural trends and what’s popular.

They can disagree with others without being disagreeable.  

In a word, classical (or “liberal”) education helps one become free to pursue the truth and so become the person God intends them to be.

If schools like St. Benedict's can really do this--indeed, they are springing up across the country and showing excellent results--we will be offering to the Western world the building blocks of a cultural renaissance.  It is one that is much needed.

November 16, 2015 in Bachiochi, Erika | Permalink

Douthat on Universities and a Challenge for Catholic Higher Education

I thought this "student-protesters-have-a-point" piece in the New York Times yesterday by Ross Douthat was especially insightful amid these fraught times on campuses. As Douthat puts it in his quick summary of the history of American higher education:

Over this period the university system became increasingly rich and powerful, a center of scientific progress and economic development. But it slowly lost the traditional sense of community, mission, and moral purpose. The ghost of an older humanism still haunted its libraries and classrooms, but students seeking wisdom and character could be forgiven for feeling like a distraction from the university’s real business.

Fast forward to the contemporary university, Douthat writes, and "the university’s deeper spirit remained technocratic, careerist and basically amoral."

But it seems to me there is an opportunity here for Catholic universities to respond to this challenge. Some of the most interesting passages (in Chapter Three, for example) of Laudato si' speak to the concern about technocracy run amok, and--at their best--Catholic universities maintain a commitment to the liberal arts and humanistic learning (even in professional schools of law and business!) that leavens the loss of moral purpose of the university. It may be that Catholic universities can help give the university back to itself. To do so would entail discerning those trends in the modern university that have been destructive of the aims of higher education (pick your favorites) and providing a witness to the possibility of something better--a stronger sense of community, moral and intellectual seriousness, and student formation for a life worth living.

November 16, 2015 in Moreland, Michael | Permalink

"The Present and Future of Religious Freedom" event in Chicago

Details here.  Come see/hear our fellow MOJ-er Michael Moreland and super-lawyer Noel Francisco on Dec. 10.

November 16, 2015 in Garnett, Rick | Permalink

"For Freedom Set Free" at Notre Dame This Weekend

I am fortunate to be spending this academic year on leave at Notre Dame as the Mary Ann Remick Senior Visiting Fellow in the Center for Ethics and Culture and teaching a seminar in the Law School. This weekend features the Center for Ethics and Culture's annual conference, and the theme for this year is freedom. Highlights include plenary talks by Remi Brague, Alasdair MacIntyre, Thomas Pink, Father Martin Rhonheimer, and Father Julián Carrón. The undercard includes a panel on religious freedom with Father Thomas Joseph White, OP, Rick Garnett, and yours truly. Full details are here.

November 16, 2015 in Moreland, Michael | Permalink

"Pursuit of Felicitas": A Defense of the Liberal State

This piece, by Andrew Latham, is well worth a read.  Here's a bit:

In recent years, conservative Aristotelian-Thomists like Patrick Deneen and Alasdair MacIntyre have made the argument that a moral philosophy entailing a substantive account of human happiness or fulfillment is simply incompatible with the American liberal-democratic political order. They are convinced that America’s foundational liberal philosophical principles are in their very DNA corrosive of the traditions and institutions necessary for the realization of final ends inherent in human nature.

While there may have been a time in our history when liberalism and eudaimonism could fruitfully coexist in the United States, they argue, that time has long passed. In the current “postliberal” era, liberalism’s core commitments to “anthropological individualism” and the historicity of human “nature” have evolved to the point where they have rendered liberalism not only incompatible with eudaimonism but positively hostile to it.

While on balance I share many of these concerns, I think the liberal state deserves continued support for one simple reason: In my judgment, the full working out of the liberal principles that Deneen, MacIntyre, and I find so problematic has not yet progressed to the point where the liberal state has decisively mutated into a postliberal behemoth bent on imposing its liberal values on all its subjects. There are firewalls, institutional and philosophical, that continue to check the unfolding of this historical process, and Americans in particular continue to enjoy enormous freedom to pursue their final ends as they understand them. . . .

I am inclined to agree.  But, read the whole thing . . . 

November 16, 2015 in Garnett, Rick | Permalink

Fred Zacharias Prize in Professional Responsibility

The winners have  been selected for the sixth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.  The Prize will be awarded to Elizabeth Chamblee Burch, for Judging Multidistrict Litigation, 90 NYU L. Rev. 71 (2015), and Morris A. Ratner, for Class Counsel as Litigation Funders, 28 Geo. J. Legal Ethics 271 (2015).

The Prize will be awarded at the AALS Annual Meeting in New York in January.

November 16, 2015 in Garnett, Rick | Permalink

"Virtue, Freedom, and the First Amendment"

I've recently posted this paper, Virtue, Freedom, and the First Amendment. Here is the abstract.

The modern First Amendment embodies the idea of freedom as a fundamental good of contemporary American society. The First Amendment protects and promotes everybody’s freedom of thought, belief, speech, and religious exercise as basic goods — as given ends of American political and moral life. It does not protect these freedoms for the sake of promoting any particular vision of the virtuous society. It is neutral on that score, setting limits only in those rare cases when the exercise of a First Amendment freedom exacts an intolerable social cost.

Something like this collection of views constitutes the conventional account of the First Amendment. This essay offers it two challenges. First, the development of the First Amendment over the past century suggests that freedom is not an American sociopolitical end. It is a means — a gateway out of one kind of political and legal culture and into another with its own distinctive virtues and vices. Freedom is not a social solution but instead gives rise to a social problem — the problem of how to allocate a resource in civically responsible ways, so as to limit freedom’s hurtful potential and to make citizens worthy of the freedoms they are granted. Only a somewhat virtuous society can sustain a regime of political liberty without collapsing, as a society, altogether. Thus the First Amendment of the conventional account has not maximized freedom for all people and groups. It has promoted a distinctive set of views about the virtuous legal and political society.

Second, the new legal culture promoted and entrenched by the conventional account is increasingly finding that account uncongenial. In fact, the conventional account is positively harmful to its continued flourishing. That is because the new legal culture’s core values are not the First Amendment freedoms themselves but the particular conceptions of political and social equality and individual dignity that the conventional account has facilitated and promoted. Proponents of the new legal culture in consequence now argue for aggressive limits on First Amendment freedoms.

One prominent group has invented a new legal category: “enumerated rights Lochnerism.” These scholars denigrate any First Amendment resistance to multiplying forms of expansive government regulation in the service of egalitarian aims as retrogressively libertarian. Another group argues for novel limits on the First Amendment in the form of balancing tests that would restrict speech that injures the dignity of listeners and religious exercise that results in vaguely defined and vaguely delimited harms to third parties. What unites these critics is the desire to swell features of the Court’s post-New Deal Fourteenth Amendment jurisprudence, and particularly the law concerning sex as a civil right, by protecting progressively expansive conceptions of equality and individual dignity. The critics see the conventional account of the First Amendment as an obstacle in the path of progress.

Part I of this essay presents the conventional account of the First Amendment in three theses. It then critiques the conventional account in Part II by offering three revised theses, developed through the somewhat unusual route of exploring the First Amendment thought of the late political theorist and constitutional scholar, Walter Berns. Freedom, for Berns, gave rise to a problem — the problem of making men sufficiently virtuous to merit their freedom. It was a problem that he thought had been ignored or even forgotten by defenders of the conventional account of the First Amendment.

But the problem of virtue and freedom has been remembered. Part III argues that contemporary defenders of the new legal culture have remembered the problem just as their own cultural and legal mores are ascendant. The new civic virtues — exemplified in multiplying anti-discrimination regulations for the protection of thickening conceptions of equality and individual dignity, particularly as those concepts relate to sexual autonomy — are those that were fostered by the conventional account of the First Amendment in tandem with significant components of the Supreme Court’s post-New Deal Fourteenth Amendment jurisprudence. And those civic virtues are already informing new criticisms of the conventional account and arguments about new limitations on the scope of religious freedom and freedom of speech. Berns’s arguments about freedom and virtue, it turns out, are highly relevant today since progressive opinion is no longer committed to First Amendment “absolutism.”

The essay concludes with two speculations. First, it seems we are no longer arguing about whether to restrict freedom, but for what ends. If that is true, then those arguments should neither begin nor end with egalitarian and sexual libertarian fervor. Second, there is no account of the First Amendment that maximizes freedom for everyone — for all persons and groups. There is only the society that America was before the rise of the conventional account of the First Amendment and the society that it is becoming after it.

November 16, 2015 in DeGirolami, Marc | Permalink

Saturday, November 14, 2015

"The Warden" by Trollope: An Exceptional Law and Religion Novel

Here's perhaps something of a light distraction from various present horrors. I have written about Anthony Trollope here before, one of the greatest and most unjustly neglected (at least in the United Trollope, The Warden States) novelists of the Victorian period. But particularly for those interested in law and religion, may I recommend "The Warden"--the first of Trollope's Barsetshire Novels--as one of the greatest little novels I've read in years. A few notes on the plot:

The story concerns a will by one John Hiram, who establishes in the 15th century a "hospital" (really a kind of sanatorium) for the care of several bedesmen (needy pensioners). An Anglican churchman--the warden--is given the care of this hospital, with an attendant salary. But over the years, as the property increases in value, so does the warden's income, which by the time of the story sits at a very comfortable 800 pounds. The warden at the time of the telling, Septimus Harding, is a kind, gentle, caring, and honorable man who takes exceptional care of his charges. Nevertheless, a question arises about Mr. Harding's entitlement under the will to so generous an income. A reform-minded young man named John Bold (who also happens to be the suitor of Mr. Harding's daughter) begins to make inquiries--with the utmost good faith--about the nature of the original bequest. And this unleashes a bitter contest between the local archdeacon and the reformers (as well as other unscrupulous and nasty types) about the propriety of the income of the wardenship at Hiram's Hospital.

Part of what makes the novel so good is the delicacy with which the characters are drawn. Unlike in Dickens, where the characters are perhaps a bit too often either the purest angels or the rankest devils, Trollope's novel is populated with characters who have doubts about what is right. Mr. Harding himself is a deeply good man, but also one with sincere and real qualms about the justice of the matter. As Trollope puts it, Mr. Harding was far less concerned to be proved right at law than to be right.

Though their lives are entirely comfortable, many of the bedesmen are lured into joining a law suit when the promise of 100 pounds a year is dangled in front of them by an exploitative lawyer who strikes the appealing notes of self-righteousness in combination with legal entitlement. In the end, after his name is repeatedly dragged through the mud by the local press, the warden resigns and the bedesmen don't see a cent. In a touching scene at the end of the novel, as the warden is leaving the hospital, he says goodbye to a bedridden bedesman who is destined to die within the week, "poor old Bell":

"I've come to say goodbye to you, Bell," said Mr. Harding, speaking loud, for the old man was deaf.

"Are you going away, then, really?" asked Bell.

"Indeed I am. And I've brought you a glass of wine; so that we may part friends, as we lived, you know."

The old man took the proffered glass in his shaking hands, and drank it eagerly, "God bless you, Bell!" said Mr. Harding; "good bye, my old friend."

"And so you're really going?" the man again asked.

"Indeed I am, Bell."

The poor old bed-ridden creature still kept Mr. Harding's hand in his own, and the warden thought he had met with something like warmth of feeling in the one of all his subjects from whom it was the least likely to be expected; for poor old Bell had nearly outlived all human feelings. "And your reverence," said he, and then he paused, while his old palsied head shook horribly, and his shriveled cheeks sank lower within his jaws, and his glazy eye gleamed with a momentary light; "and your reverence, shall we get the hundred a year, then?"

How gently did Mr. Harding try to extinguish the false hope of money which had been so wretchedly raised to disturb the quiet of the dying man! One other week and his mortal coil would be shuffled off; in one short week would God resume his soul, and set it apart for its irrevocable doom; seven more tedious days and nights of senseless inactivity, and all would be over for poor Bell in this world; and yet, with his last audible words, he was demanding his moneyed rights, and asserting himself to be the proper heir of John Hiram's bounty! Not on him, poor sinner as he was, be the load of such sin!

There is so much more in this superlative story of law, rights, religion, justice, reform, tradition, personal frailty, and the complicated nature of human motivations and character. One of the very best.

November 14, 2015 in DeGirolami, Marc | Permalink