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.

Monday, April 18, 2016

Great news: Notre Dame scraps plans for "liberal arts college" collaboration with China

The story is here.  For almost two years now, I've been very nervously awaiting the outcome of the decision-making process regarding the proposal to set up a "liberal arts college" in cooperation with the government in the PRC.  From the start, I thought (and said) that the proposal was not an attractive or defensible one, that it would involve close collaboration in real violations of academic freedom and human rights, and that it would compromise not only the University's integrity as a Catholic institution but as a university dedicated in a particular way to the liberal arts and the pursuit of truth through open inquiry.  In any event, the outcome and news are good.

Pray for the suffering Church in China.

April 18, 2016 in Garnett, Rick | Permalink

Notre Dame legend, Prof. David Solomon, to retire

Prof. David Solomon -- a longtime professor of philosophy at Notre Dame -- is retiring at the end of this semester.  (Here's a very nice tribute to him that appeared the other day in the campus newspaper.)  It's impossible to overstate the importance of Prof. Solomon's contributions not only to the formation and education of thousands of Notre Dame students but also to the University's Catholic character and mission.  Among other things, Prof. Solomon was the founding director of the Notre Dame Center for Ethics & Culture, which has been for nearly 20 years a center of vibrant inquiry and engagement on issues ranging from bioethics to J.R.R. Tolkien.  The Center's annual Fall Conference is, for many of us, among the highlights of the academic year.  

When I first came to Notre Dame, in 1999, I met Prof. Solomon through a mutual friend and colleague and, pretty quickly, my daily ritual included a bagel and coffee with David and a few others at Lula's, South Bend's initial effort at a campus-y coffee shop.  My first daughter spent a lot of time, as a baby, crawling around under the tables there and wiping crumbs on Prof. Solomon.  He welcomed and inculturated my wife and me into the University community and his love for and dedication to the place were inspiring and infectious.  It's very hard to imagine life at the University without him, his wit, and his generosity.  If you care about Catholic higher education -- and all MOJ readers should -- then you have good reasons to be grateful to David Solomon.  

UPDATE: This tribute by Fr. Bill Miscamble is excellent.  A bit:

David has loved being a teacher and a philosopher and his labors have allowed him to seek the good and to touch the lives of many students. Of course, as a philosopher he has emphasized the role of the intellect, but this has never been done by him at the expense of the heart. No doubt over time he has come to appreciate ever more deeply and in the manner of St. Thomas that love must have the final word, for only love can truly complete the intellect’s knowledge. He has given of himself for his students, his colleagues, and his friends and Notre Dame is a much better place because of him.

April 18, 2016 in Garnett, Rick | Permalink

Sunday, April 17, 2016

"Conversations" with Kristol . . . and Robert George (on history, Unger, Hegel, etc.)

I really enjoy Bill Kristol's "Conversations" podcasts.  Some of my favorites (I listen when "running") have been with Mitch Daniels, Justice Alito, and Leon & Amy Kass.  And now, there's the latest, which features our own Robby George.  It's really good.  Check it out.

Here's a bit, from the transcript, on "history":

GEORGE: It’s a tough challenge, but things always seem impossible until people do them. We are still, even those of us who are conservatives, to some extent in the grip of the Hegelian-Marxist idea that there are laws of history and society that generate outcomes quite independently of what individual actors or people organize together do. Now, that’s a really stupid view.

KRISTOL: Somehow deep in the modern world. Progress goes in one direction, more or less.

GEORGE: Just think of how much traction folks on the Left get out of accusing their adversaries of being on the wrong side of history. Many of their adversaries are actually concerned about that. They’re worried about being on the wrong side of history, as if history were endowed with the powers of judgment with God to determine what’s right and what’s wrong, separate the sheep from the goats on the last day, so to say. But of course, history – this is why I say it’s stupid – history is an impersonal sequence of events. It has no power to judge than a rock outcropping or a golden calf. It’s just literally an idol.

KRISTOL: It’s a powerful idol. Bill Buckley doesn’t get enough credit for standing athwart history. That was a very important thing just to say. He didn’t believe history had a movement either, I don’t think. But he thought it was important to show people that a young, well-educated, intelligent, fun-loving person could say no. You know, one forgets just in the mid-50s how bold that was, I think, and how much people did believe in a sort of decayed version of Hegelian-Marxist history with a capital H.

GEORGE: We’re still in its grip today. Can I say one more word about that, Bill, before you move on? You’ll probably find it surprising that I was not taught this view, but strongly reinforced in this view when I was a student at Harvard Law School by a leftwing professor. It was actually Roberto Unger who strengthened my belief in the radical contingency of history and my skepticism about the Hegelian-Marxist idea of a progressive history because although he was on the Left, he was a radical anti-Marxist when it came to the idea of laws of history and society. Radically skeptical about them, as well he should be. And you know, I don’t agree with various other aspects of his thought – on this, I think he was absolutely right – but he was a very strong influence on me.

KRISTOL: That’s interesting. I remember he was such a prominent – considered far on the Left in a way. Radical Left, as you say. More radical than Marxist almost.

GEORGE: And some people both on the Left and the Right just regarded him as a very sophisticated Marxist. When he himself said, “No, I’m not that. You’ve misunderstood me,” people were puzzled.

There was an exchange he had in the University of Minnesota Law Review years ago after his first book was published, Knowledge and Politics, when Tony Kronman who later became a very prominent law professor, Dean of Yale Law School. Tony Kronman in a review of Knowledge and Politics just identified Unger as a sophisticated sort of Frankfurt School Marxist. Unger wrote back in saying, “No, you’ve completely misunderstood me.” Kronman couldn’t understand, and Unger said, “The thing that you most misunderstood me about is I can’t be a Marxist because I do not believe in a dialectic of history. I don’t believe in the inevitability of anything. I believe in the radical contingency of history. That idea is much more comfortably categorized as a Catholic idea.” Unger himself was not a believer. But he said, “That’s much more easily categorized as, say, a Catholic idea than as a Marxist idea.”

April 17, 2016 in Garnett, Rick | Permalink

Friday, April 15, 2016

Sex and Gender in the Literature

Last week I participated in an intense and deeply informative conference on "gender theory," co-sponsored by the Catholic Women's Forum at the Ethics and Public Policy Center and the Catholic Information Center. We heard from a scientist, historian and economist, as well as philosophers, theologians, and lawyers. Should these papers be published--and that is the hope--I will be sure to post here. But in the meantime, I wanted to post a few excellent resources for anyone trying to make sense of what has become a leading--and confusing--issue today. 

Here is a collection of studies drawn from scientists and researchers on sex differences in the brain, posted yesterday on MercatorNet, originally published in the journal, The Family in America. A few money quotes: 

. . . The truth is that virtually every professional scientist and researcher into the subject has concluded that the brains of men and women are different. . . . [T]he nature and cause of brain differences are now known beyond speculation, beyond prejudice, and beyond reasonable doubt.

As a result, “There has seldom been a greater divide between what intelligent, enlightened opinion presumes—that men and women have the same brain—and what sciences knows—that they do not.” Therefore, they proclaim in frankness, “It is time to cease the vain contention that men and women are created the same."

And this one is especially interesting: 

Given that cultures are different and that male and female differences are demonstrated to varying degrees in different cultures, where would you imagine gender differences between male and female to be most pronounced?

In traditional, developing cultures, where men and women have to depend on each other for daily survival, where today’s food is collected, prepared, cooked, and consumed today?

Or . . .

In modern cultures that are more technologically, economically and politically advanced, where men and women have the resources and cultural freedoms to become and do what they desire?

It appears that when they enjoy greater freedom—financially, politically, and culturally—men become more stereotypically masculine and women more stereotypically feminine. This is, however, most true for women.

The New York Times summarized the findings of personality tests in more than 60 different countries and cultures: “It looks as if personality differences between men and women are smaller in traditional cultures like India’s or Zimbabwe’s than in the Netherlands or the United States.” The New York Times concludes: “The more Venus and Mars have equal rights and similar jobs, the more their personalities seem to diverge."

I'd also recommend UVA professor Steven Rhoades 2005 book, Taking Sex Differences Seriously, and Leonard Sax's Why Gender Matters? Additionally, this paper by Sister Prudence Allen, the learned philosopher and author of the three-volume series The Concept of Woman (Vol 3 available in November 2016), is very helpful as a historical-philosophical approach. She also has an excellent, clarifying chapter in Not Just Good, but Beautiful, the collection of presentations of the Humanum colloquium in Rome last year. 

The Holy Father has strongly opposed what he calls "gender ideology" in a number of documents, including Laudato Si and now Amoris Laetitia. Here is #56 in the latter:

Yet another challenge is posed by the various forms of an ideology of gender that “denies the difference and reciprocity in nature of a man and a woman and envisages a society without sexual differences, thereby eliminating the anthropological basis of the family. This ideology leads to educational programmes and legislative enactments that promote a personal identity and emotional intimacy radically separated from the biological difference between male and female. Consequently, human identity becomes the choice of the individual, one which can also change over time”[Quoting the Relatio Finalis, 2015]. It is a source of concern that some ideologies of this sort, which seek to respond to what are at times understandable aspirations, manage to assert themselves as absolute and unquestionable, even dictating how children should be raised. It needs to be emphasized that “biological sex and the socio-cultural role of sex (gender) can be distinguished but not separated”. On the other hand, “the technological revolution in the field of human procreation has introduced the ability to manipulate the reproductive act, making it independent of the sexual relationship between a man and a woman. In this way, human life and parenthood have become modular and separable realities, subject mainly to the wishes of individuals or couples”. It is one thing to be understanding of human weakness and the complexities of life, and another to accept ideologies that attempt to sunder what are inseparable aspects of reality. Let us not fall into the sin of trying to replace the Creator. We are creatures, and not omnipotent. Creation is prior to us and must be received as a gift. At the same time, we are called to protect our humanity, and this means, in the first place, accepting it and respecting it as it was created. 

I've shared some of my take on all this here at MOJ, and also in Mary Hasson's book, Promise and Challenge, from the first gathering of the Catholic Women's Forum. First Things is due to publish another article soon. 

April 15, 2016 in Bachiochi, Erika | Permalink

Wednesday, April 13, 2016

Alice Paul: “Abortion is the Ultimate Exploitation of Women”

Yesterday, President Obama designated the “Belmont-Paul Women’s Equality National Monument” in Washington, D.C.  This is the building that not only served as the headquarters of the Women’s Party beginning in 1929, but was the home for such early leaders of political rights for women as Alice Paul.


Not surprisingly, while President Obama justly sang the praises of such giants in the struggle for human dignity as Alice Paul, the historical narrative was decidedly slanted to fit current liberal political themes.  Scrubbed from the historical record and never mentioned in President Obama’s speech was the courageous and consistent stance that Alice Paul took against abortion over the decades, speaking up when others promoted the Equal Rights Amendment and womens equality as supposedly linked to abortion “rights.”

Just a few months ago, Marjorie Dannenfelser of the pro-life Susan B. Anthony List wrote in Time magazine (here): “Many of today’s feminists see abortion as one of the touchstones of their movement. Yet many of the early leaders of the women’s suffrage movement in the U.S. believed that the rights of mother and child are inextricably linked and that the right to life and the right to vote are rooted in the inherent dignity of each human person.”

Alice Paul would have emphatically agreed.  Living until her 90’s and the 1970s, Alice Paul called it like it is, saying that “Abortion is the ultimate exploitation of women.”

April 13, 2016 | Permalink

McConnell on the Religious Non-Profits' (and Administrations) supplemental arguments

Mark Silk says that the religious non-profits "caved" in the contraception-coverage-mandate litigation.  I think he's quite wrong.  As Michael McConnell shows, here, the matter is far more complicated.  And, the latest round -- far from showing that the Little Sisters et al. were overreaching (or, as some persist in mistakenly insisting, distracted or pulled off course by their lawyers).  Conclusion:

On a highly polarized issue, the Supreme Court deserves credit for seeking a solution that protects the rights of religious parties under RFRA while still accomplishing the government’s goal of free access to contraception. The Little Sisters have always said they simply want to be left alone to carry out their good works without violating their religious beliefs. Their supplemental brief proves the point, showing that there is no inherent conflict between their religious beliefs and the government’s goals. The government’s brief seems to acknowledge the handwriting on the wall. Because it can use a less restrictive means to accomplish its interests, it must.

April 13, 2016 in Garnett, Rick | Permalink

Quick Takes on "Amoris Laetitia"

Like (I strongly suspect) the vast majority of commentators who have commented publicly on the new apostolic exhortation, I have not read Amoris Laetitia carefully and in its entirety.   I've read a fair bit of commentary, though . . . which reminds me of one of my favorite bits from the (wonderful) film, Metropolitan:

Audrey Rouget: What Jane Austen novels have you read?

Tom Townsend: None. I don't read novels. I prefer good literary criticism. That way you get both the novelists' ideas as well as the critics' thinking. With fiction I can never forget that none of it really happened, that it's all just made up by the author.

Anyway, three "quick takes":

First, the document is too long.  It just is.  (Another film reference . . . "too many notes.")  It's length makes it less likely that it will have the pastoral and evangelical effects that I believe the Holy Father wants it to have.  Few lay people will read the whole thing and -- I strongly suspect -- not even all conscientious, well-meaning, pastorally-minded priests will read the whole thing, either.  This means that the document's "message" will, unfortunately, be in no small part a function of spinners and quote-hunters, whose goals in spinning and quote-hunting might not be the same as Pope Francis's.  

Second, as I've noted on some other occasions, regarding the reactions among commentators to Pope Francis's statements and writings, I'm seeing -- and, to be clear, it might not be a representative sample -- a disappointing amount of "this document is great because it's making those I disagree with politically and in the Church uncomfortable and angry."  I understand, entirely, the appeal of schadenfreude but if one's analysis, evaluation, and reception of the document are simply a function of that emotion, then it could well be that it is one, and not one's opponents, who doesn't "get" Pope Francis.  

Third, and more substantively.  I share the concern -- and not, I feel confident, because my "heart" is particularly "hard" on these matters -- that the document is making so much (again, in the limited parts I've read) of the importance of not letting "rules" get in the way of mercy, accompaniment, invitation, evangelization, etc., that it will be read as suggesting that the truths and goods that the Church's "rules" reflect and serve are themselves the obstructions and stumbling blocks.  It is, for example, the Truth about the Eucharist, and not only a rule about receiving it, that is implicated in debates about whether those who are in second civil marriages may receive it.  (To say this is not to be the "pharisee," nor is it to disagree with the Holy Father that the Eucharist “is not a prize for the perfect, but a powerful medicine and nourishment for the weak.")

One more thing:  As someone who hates "Valentine's Day" (as it is celebrated in the United States), I wish the Holy Father had given it a big, fat anathema.

April 13, 2016 in Garnett, Rick | Permalink

"Taking the Long Way" with Yuval Levin

Thanks to my colleague Phillip Munoz and Notre Dame's Tocqueville Program I was able to enjoy a great workshop/symposium on Yuval Levin's outstanding essay, "Taking the Long Way:  Disciplines of the Soul are the Basis of a Liberal Society."  (One reason I like it so much is that it said, better, a lot of the things I said in this 2001 law-review article, "The Story of Henry Adams's Soul"!).  Here's a bit from Yuval's piece:

This view of the common good as balanced or coordinated self-interest was facilitated by modern political philosophy’s lowering of the goals of social life. Modern thinkers since Machiavelli and Hobbes have tended to assert that the purpose of society is simply to meet our basic needs for security in our person and property and our desire for liberty in all other things. This minimal view allows us to hope that an arrangement of institutions, incentives, and interests that keeps us out of each other’s hair will be enough. The market economy, too, is premised on the notion that if all we want is prosperity and comfort, then we should be able to achieve those in spades without having to argue about moral premises too much.

In reality, however, such hopes are possible because we presuppose the existence of a human being and citizen capable of handling a remarkably high degree of freedom and responsibility. We do not often enough reflect on how extraordinary it is that our society actually contains such people. A population of citizens generally capable of using their freedom well, not the American Constitution or the market system, is the greatest modern achievement of our civilization. That achievement is the prerequisite for liberalism, whether progressive or conservative, not only at its origin but in every generation. Thus the dangerous impoverishment of our political culture today: The idea of liberty that both progressives and conservatives generally articulate takes the person capable of freedom for granted without pausing to wonder where he might come from.

Read the whole thing!

April 13, 2016 in Garnett, Rick | Permalink

Pope warns of "polite persecution disguised as progress"

Story here.  And, he is certainly right to do so.  I realize, of course, that in some quarters, talk like this -- words like "persecution" -- are seen as overblown, paranoid, or needlessly inflammatory (perhaps excessively "prophetic").  And, to be sure, many suffer (as the Pope acknowledged in his remarks) extremely impolite -- violent, lethal -- persecution for their faith.  Still:

However, he added, there is also a “polite” persecution that “takes away from man and woman their freedom, as well as their right to conscientious objection.”

“Jesus has named the head of this ‘polite’ persecution: the prince of this world. And when the powerful want to impose behaviors, laws against the dignity of the son of God, they persecute them and go against God the Creator. It is the great apostasy,” the pope said.

Pope Francis said that although Christians are besieged by persecution, Jesus will always remain close.

“The Lord has promised that he will not be far from us: ‘Beware, beware! Do not fall for the spirit of the world. Beware! But go forward, I will be with you,'” he said.

I suppose some might say that the Pope is falling into a "culture warrior" mentality here?  I would not.  What's happening to, say, the Little Sisters of the Poor is not -- not even close -- what's happening to Christians in the Middle East and in China.  But, it's naive (or worse) to imagine that, in the United States and elsewhere, the Pope is wrong when he says that "Christians must beware of a 'polite' persecution that is cloaked in a disguise of 'culture, modernity and progress,' Pope Francis said."  

April 13, 2016 in Garnett, Rick | Permalink

Monday, April 11, 2016

Doctrine by Footnote?

I have only read the first 28 pages of Amoris Laetitia--and do intend to read the rest "patiently and carefully" as the Holy Father instructs us to in the Exhortation's introduction. Admittedly, however, upon hearing of the controversy stirred up by a few footnotes in Chapter 8, I raced ahead to see what all the fuss was about...as though doctrine could be taught...changed!?...via footnote? But then, am I the only one for whom footnote 4 of Carolene Products came rushing to mind? 

Recall that in US v. Carolene Products Company (1938), the Supreme Court upheld a public health and safety regulation as presumptively constitutional law-making on the part of the federal government as within its power to regulate interstate commerce. (The Court had repudiated Lochner  just a year earlier.) But the Court dropped footnote four, laying claim to other types of legislation for which a more probing scrutiny would ensue. Footnote four would eventually become legal doctrine. 

Of course the parallel between the Exhortation and Carolene Products fails as to the substantive contents of the text and footnotes, and it's inapt to compare the development of doctrine in the the Church with the development of jurisprudence by the US Supreme Court. But what I am struck by is the confidence with which notable Catholics eager to see the full dismantling of the Church's sexual teachings believe they have found their foothold in the Exhortation--and perhaps in the footnotes specifically! (And some Catholics hoping to see tradition upheld have agreed that the debate about the document's meaning takes place in a footnote...with some quite sure of it!) 

Even for a centuries-old faith, this is a first. 




April 11, 2016 in Bachiochi, Erika | Permalink