Wednesday, February 8, 2017
Tuesday, February 7, 2017
John Allen has a piece on what he calls Pope Francis's "puzzling" remarks on religious freedom in China. Here's a bit:
In the English translation provided by El Pais, here’s what the pope is quoted as having said: “In China, churches are crowded. In China they can worship freely.”
In the original Spanish, the pope’s statement wasn’t quite that bald. What he said was, “En China las iglesias están llenas. Se puede practicar la religión en China,” which translates as, “In China the churches are full … one can practice religion in China.”
There is, of course, a big difference between saying religion can be practiced someplace, which can imply despite difficulties and dangers, and claiming that one can “worship freely” there.
Nevertheless, the fact that Pope Francis appeared to suggest that the climate for religious freedom in China is basically positive likely will irritate, even outrage, people who know the reality, and who have been working on behalf of the country’s religious minorities.
I hope there will be some clarification coming from the Holy See, or ideally from the Holy Father himself. It is not merely puzzling, but simply false, to state that "[i]n China they can worship freely." (Not only is the freedom of religion -- correctly understood to include religiously motivated action in the public square -- not protected, not even the mere "freedom of worship" is in fact respected.) The Spanish statement -- "one can practice religion in China" -- is, I suppose, technically true, in the sense that one can always practice religion in totalitarian or tyrannical societies . . . if one is willing to be punished for it. Allen concludes:
Of course, Francis may be engaged in that time-honored Vatican strategy of playing the long game, playing down provocative rhetoric in order to advance the relationship with Beijing, ideally affording Rome greater leverage to achieve positive change. Further, the pope may be concerned that Christians on the ground in China would be the ones to pay the price should he indulge in finger-pointing and denunciations.
Still, those Catholics in China these days behind bars, or who fear ending up there, may be forgiven for wishing that, once in a while, their pope would speak publicly and clearly about their sacrifice.
Whenever that day may be, it certainly wasn’t the El Pais interview.
It certainly wasn't.
Thursday, February 2, 2017
If you're a lawyer in need of an optimism boost about your chosen profession, I have an op-ed in today's Star-Tribune that might help:
[I]n the end, Americans like to poke fun at lawyers only until they need one. Few of us will ever sue the president of the United States. Much of our work takes place in a small office, a crowded courtroom, or across the table from a client who may be feeling scared, hopeless, and invisible. If we take the rule of law seriously, we must be cognizant not only of an overreaching executive branch, but of an overreaching landlord, employer, business partner, or prosecutor.
Lawyers, at their best, help remedy disparities before the law. Those disparities can stem from imbalances in political power, social standing, financial resources, or information. At a time in U.S. history when we cannot seem to agree on much, committing to a level playing field before the law may be a great place to start.
Today I presented a lecture at St. Joseph's University titled "Catholic Universities and our Polarized Nation." I focused on how we can model the concept of civil friendship on campus and beyond. Among several attributes of a commitment to civil friendship, I highlighted the need for coherence in our political engagement:
Citizens may disagree on a given issue, but even those who do should be persuaded of the internal logic and consistency of the worldview and values that animate our positions. If critics perceived that Catholics were willing to move heaven and earth to stop same-sex marriage, but were not willing to lift a finger to roll back no-fault divorce laws, the perception would be that our objective is not to defend the institution of marriage, but rather to keep gays out of it. Opponents of Trump who deemed him unfit for office because of his treatment of women but rushed to defend President Clinton against the women who accused him of sexual misconduct are vulnerable to charges of incoherence and hypocrisy. A lack of coherence in our political engagement doesn’t just make our advocacy less effective – it promotes cynicism, suggesting that politics is just about power, not about reason or principle.
The prompted a line of questioning from students and faculty after the lecture, asking how our media consumption can promote cynicism and make coherence more difficult. One student even asked me which sources I rely on for news if I'm trying to maintain a nuanced, evenhanded understanding of events. In these and other exchanges, I have observed a strong desire among students to be engaged with the world but confused about how to sort through media perspectives/bias in ways that don't boil down to picking a side. The delegitimizing effect of (real or perceived) bias is exacerbated by the social media platforms through which we are encountering the news -- every link served up with a snarky comment thread. In past decades, we may have been too naïve in our consumption of news; now, we're raising a generation inclined to believe that everyone reporting the news has an angle, so our choices are either to stop paying attention or choose camps and stay there. I think we need to devote sustained attention to this problem -- not just the problem of media bias, but the problem of reacting to media bias by dismissing "mainstream" sources of news as tainted to the point of worthlessness. This problem did not begin with Donald Trump, but he is taking it to a new level with sweeping #fakenews pronouncements. (Promoting widespread distrust in our institutions may prove to be the most destructive legacy of President Trump. Can #fakelaw be far behind #fakenews?)
Savvy media consumption is key to a coherent worldview and the cultivation of empathy for those with different perspectives and life experiences. If we're going to tackle our society's polarization head-on, that will have to be at the center of the conversation.
Michael has already quoted a passage from Judge Neil Gorsuch's chapter in the Finnis festschrift (Reason, Morality, and Law (Keown & George, eds. 2013)). Here's another one that caught my attention (419-20):
Not only does Finnis help us to see that the traditional intent-knowledge distinction in law bears analytical power overlooked by its critics. He also helps expose the undergirding normative reasons for the law's traditional cognizance of intention. He reminds us, for example, that some of the law's harshest punishments are often (and have long been) reserved for intentional wrongs precisely because to intend something is to endorse it as a matter of free will--and freely choosing something matters. Our intentional choices reflect and shape our character--who we are and who we wish to be--in a way that unintended or accidental consequences cannot. Our intentional choices define us. They last, remain as part of one's will, one's orientation toward the world. They differ qualitatively from consequences that happen accidentally, unintentionally....
This is a view, of course, that has long and deeply resonated through American and British jurisprudence, and indeed the Western tradition. It is precisely why the law treats the spring gun owner who maims or kills intentionally so differently from the negligent driver whose conduct yields the same result. As Roscoe Pound once put it, our "substantive criminal law is," at least at minimum, "based upon a theory of punishing the vicious will. It postulates a free agent confronted with a choice between doing right and doing wrong."
And then from Professor Finnis's reflection on Judge Gorsuch's chapter (564-65), which comments interestingly on the tendency of tort law to wipe out the distinction between intention and foreseeability:
The underlying point is that--put at its briefest--what is intended so figures in the acting person's proposal that it is adopted--chosen and made his or her own, as end and/or means--in the adopting of the proposal, whereas the side effects, however foreseeable and foreseen and perhaps very 'directly' caused, are not adopted, but only accepted or permitted.
Wednesday, February 1, 2017
The Lewis and Clark Law Review, with the guidance of Professor Jim Oleske, has put together a very nice symposium on Law and Religion in an Increasingly Polarized America. Very interesting papers by Kathleen Brady, Kent Greenawalt, Jessie Hill, Andy Koppelman, Ron Krotoszynski, Chip Lupu and Bob Tuttle, Jim Oleske, and Robin Wilson.
I've got a piece in there too, Religious Accommodation, Religious Tradition, and Political Polarization, which takes a somewhat critical look at the religious accommodation regime from, as it were, the other side.
So, this is 2017: A few days after issuing an incompetently executed, morally dubious, and in many ways misguided executive order on immigrants and refugees, the president nominated an outstanding and unassailable jurist to succeed Justice Antonin Scalia. . . .
It is unfortunate, in a way, that the nomination of such a fine judge comes in the context of a silly prime-time announcement ceremony, in the midst of other controversies, introduced by such a clunky, self-referential speech by the president. Judge Gorsuch is a gifted, eloquent writer and a thoughtful, careful judge. He will not regard himself as beholden to the president who nominated him but will instead, I am confident, do his best to decide in accord with the law and his own formation, education, and values. . . .
I've written a brief take for First Things on the Gorsuch nomination, "Gorsuch After Scalia."
Here's the opener:
The president’s introduction of Judge Neil Gorsuch to the nation as his nominee for the Supreme Court vacancy left by Justice Antonin Scalia’s death gave us a lift we sorely needed. Finally, something to be at peace about in our public life.
And a bit from the middle:
In my (pre-election) Supreme Court round-up for this journal last year, “The Court After Scalia,” I suggested that “no new justices for a spell might be better than adding anyone who could make it through our rotten confirmation process.” I was wrong. Judge Gorsuch can and will make it through, and the Court will be better with him on it. The biggest reason why someone of his caliber and judicial character can get confirmed now, though, is that the balance of the Court will not be altered by his confirmation but simply reset to where it was before Justice Scalia’s death. If the next opening comes from a vacancy left by Anthony Kennedy, Stephen Breyer, or Ruth Bader Ginsburg, the wheels may yet come off the wagon.
I am delighted by the President's nomination last evening of Judge Neil Gorsuch to the Supreme Court. Judge Gorsuch and I overlapped in our service in the Bush Administration, and we have kept in occasional touch since he left DC to go on the Tenth Circuit in 2006. I've used his superb book, The Future of Assisted Suicide and Euthanasia (Princeton UP, 2006), several times when teaching seminars on bioethics issues (the book's origins are in a doctoral dissertation at Oxford under the mighty John Finnis). Among the book's many virtues (especially for teaching with it) are the ways in which Judge Gorsuch so fairly and honestly lays out the arguments on all sides of the issues he explores.
For now, I wanted also to mention an essay Judge Gorsuch contributed to a Festschrift for John Finnis. The essay takes up the important question of intention in criminal law and torts, and it is a powerful argument against utilitarian bases for liability (Gorsuch uses Richard Posner's discussion of spring gun cases such as Bird v. Holbrook and Glanville Williams's work on criminal law). A bit here:
[T]here are still other normative justifications for the special emphasis the law places on intentional conduct. One has to do with human equality. When someone intends to harm another person, Finnis encourages us to remember, “[t]he reality and fulfillment of those others is radically subjected to one’s own reality and fulfilment, or to the reality and fulfilment of some other group of persons. In intending harm, one precisely makes their loss one’s gain, or the gain of some others; one to that extent uses them up, treats them as material, as a resource.” People, no less than material, become means to another’s end. To analyze Bird v. Holbrook as the challengers to extant law would have us, we ask merely whether superior collective social consequences are produced by ruling for the plaintiff or defendant. On this account, there is nothing particularly special about the individual. Like any other input or good, it gives way whenever some competing and ostensibly more important collective social good is at stake. But it is exactly to prevent all this that the law has traditionally held, in both crime and tort, that one generally ought not choose or intend to harm another person, and that failing to observe this rule is a particularly grave wrong. This traditional rule “expresses and preserves each individual person’s…dignity…as an equal.” It recognizes that “to choose harm is the paradigmatic wrong; the exemplary instance of denial of right.” It stands as a bulwark against those who would allow the human individual to become nothing more than another commodity to be used up in aid of another’s (or others’) ends.
Neil M. Gorsuch, Intention and the Allocation of Risk, in Reason, Morality, and Law 413, 420 (John Keown and Robert P. George, eds., 2013) (citations omitted).