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, June 18, 2018

Comey and Moral-Theology Debates

     I'll make this a quick post, without detailed analysis or links to supporting news stories. The Inspector General's Report for DOJ seems to confirm that Jim Comey decided to disregard department rules by commenting in July 2016 on the decision not to prosecute Hillary Clinton. (Having then commented in July, he felt he had to notify Congress in October that the investigation had been  reopened.) Giving him the benefit of the doubt, he decided to disregard the rules because he thought that: (a) there was a leadership void at the top of the Department (Attorney General Lynch's partial withdrawal, although not recusal, from the case); (b) Clinton was going to be elected President; and (c) failing to comment on the decision--and failing to give notice of the (briefly) reopened investigation--would undermine her credibility as president by opening the door for  people to argue that the department had given her favoritism and a whitewash. We now know that Comey substantially erred in predicting the consequences of his acts, and perhaps in analyzing the state of the election in the first place.

      It seems possible for this episode to become an example used in ethics courses, religious (moral-theology) or secular, to explore issues concerning deontological versus consequentialist (or proportionalist) ethics. One major criticism against the latter is that we lack the ability--at least, we overestimate our ability--to predict the consequences of actions. Thus we should stick with rules that reflect either deductions from foundational premises or (in rule-consequentialism) the accumulated wisdom about what consequences will likely follow. Comey's misjudgment, then,could serve as a dramatic example for this argument.

     Of course, that doesn't end the debate about "following the rules." There still may be cases in which the rules must be disregarded, even if Comey was wrong to think this was one of them. Segregation and civil disobedience present a strong example where positive law had to give way to higher-law principles. But I don't know if even Comey claims this was that sort of case (although his book, which I haven't read, is called A Higher Loyalty).

     But this also doesn't end the debate over "rules vs. consequences." There are, of course, many times in which two concrete but conflicting rules both might apply to a situation; we have to decide what the scope of each rule is. Some moral theorists, like R.M. Hare in Moral Thinking, have identified this as the function of consequentialism/utilitarianism: to resolve conflicts between prima facie duties.

     The previous two paragraphs are just ruminations by a non-expert in moral philosophy and moral theology. The main point I wanted to make is that Comey's misjudgment might be used, in ethics/moral-theology education or debates, as a prime example of the problem of uncertainty in predicting consequences. Comey's errors in prediction, and thus in judgment, were very substantial--but I don't think they were so substantial that they keep his actions from being a useful example.

June 18, 2018 in Berg, Thomas, Current Affairs | Permalink

Saturday, June 16, 2018

"Masterpiece Cakeshop and Protecting Both Sides," at Take Care Blog

Expanding on our previous analysis of Masterpiece Cakeshop at SCOTUS Blog, Doug Laycock and I now have a piece up at the Take Care blog. As many MOJ readers know, the Supreme Court found the state adjudicators had displayed impermissible  "hostility" to the bakers' religious beliefs, as shown by (1) over-the-top statements by commissioners about Phillips' belief and position and (2) the state's differential treatment of three other bakers who were allowed to refuse to make a cake with an anti-same-sex message on it, while Phillips was not allowed to refuse to design a cake celebrating a same-sex wedding.

In our Take Care piece, among other things, we (1) discuss how the Court's use of decision-makers' statements in Masterpiece should/could affect the analysis on Trump's travel ban, with the blatant anti-Muslim statements leading up to it;  (2) answer defenses that have been offered for the different treatment of the two sets of bakers; and (3) defend a broader reading of the leading free exercise cases, Lukumi and Smith--one that goes beyond prohibiting clear animus toward, or targeting of, religion. Here's some of the first point:

Trump’s anti-Muslim hostility was particularly unambiguous; and with a presidential order only one person’s intent is at issue, which makes his statements even more probative than those of an individual on a multi-member body. We do not know if the Court will so rule. The immigration context adds doctrinal complications; and if the majority believes that it should infer bad motive only from statements by adjudicators, not policymakers, an executive order falls in the latter category. But the Court is willing to infer discriminatory motive from legislative statements in race- and sex-discrimination cases under the Equal Protection Clause; it’s hard to see why religious-discrimination cases should be different.

       It is vital in today’s circumstances to condemn official hostility to any religion. In polarized America, too many people show tolerance for conservative Christians but not for Muslims. But that does not justify intolerance the other way; Masterpiece was right to condemn hostility toward Phillips’ traditionalist beliefs.


June 16, 2018 in Berg, Thomas, Current Affairs | Permalink

Friday, June 15, 2018

Some Confusions about “Classical Liberalism,” Progressivism, and Necessity


    A prominent strand in defenses of “classical liberalism” is the suggestion that there is no necessary transition from classical liberalism (understood to be good) to progressive liberalism (understood to be bad). Yes, to be sure, liberals may betray the true doctrine, resulting in a corrupted and distorted version of liberalism, one in which liberation projects are enforced upon dissenters. But it is not inevitable that such a transition should occur. Whether it does occur is a matter of free choice, guided by right reason. If liberty is properly understood in relationship to natural right among free and equal citizens, there need be no such slippage to authoritarian, liberty-restricting progressivism.

    The remedy for progressive excess, on this view, is the renewal of a kind of civic virtue — the political virtue that respects the equality-in-liberty of all, especially “religious freedom,” while nonetheless insisting that natural law and divine law ought to be respected by all, even if none are to be compelled to respect it. In an Americanist version, this civic virtue is said to be the virtue envisioned by the Declaration and by the Founders, and embodied, albeit imperfectly, in the Constitution of 1789. The Founders show that it is perfectly possible, as logical matter, to combine public liberalism based on the consent of the governed with a commitment to natural rights and natural virtues, understood to include both the right and duty to worship Nature’s God.

    I think there are several conceptual confusions here. Dispelling these confusions is not in itself sufficient to refute the view I have described, but the indispensable first step is to ask the right questions. As it stands, the view is not coherently formed.

    First, there is a confusion between two very different counterfactuals (a confusion that has, incidentally, frequently bedeviled discussions of economic history).  I will illustrate with the American case. One counterfactual is what would have occurred if the requirements of civic virtue had been followed since 1789. An entirely different counterfactual is what would happen if civic virtue were renewed today. Defenses of Americanist liberalism often skip back and forth between these two distinct counterfactual baselines, even in the same paragraph or sentence. The result is that two entirely different propositions are often conflated:

    (1) If citizens had been virtuous starting from 1789, the evils of progressive liberalism would not have occurred.

    (2) If citizens would be virtuous in 2018, the evils of progressive liberalism could be undone.

    Of course, both propositions could be true, both false, or only one true. But it is a mistake to defend (1) and to think one has thereby also defended (2). The latter is much more difficult to defend than the former. Undoing X is almost always more difficult than never doing X in the first place. Suppose that it is true that the ills of liberalism do not necessarily follow from the Founding, as suggested by proposition (1). It isn’t at all clear what the cash-value of that observation might be in 2018, if it is also true (denying proposition (2)) that those ills cannot now be undone by some sort of “return to the principles of the Founders.”

   A second confusion is between necessity and structural propensity in politics. Illustrations are legion, both in markets and nonmarket settings. There is a structural propensity for littering in public parks, because of the Tragedy of the Commons. It’s not strictly necessary - we could all just be more virtuous! - but it’s a real propensity all the same. It is irrelevant that there exist possible worlds in which, despite the conditions of the Tragedy being satisfied, virtuous norms ensure that no littering occurs. Those worlds are sufficiently few, and sufficiently difficult to reach from a world without virtuous norms, that one cannot simply gesture in their direction and think that one has offered an argument.

   Put differently, talk of “necessity” obscures the main issue, which is the structural stability of classical liberalism. Of course one can imagine logically possible worlds in which virtuous classical liberals practice tolerance in just the right ways. The problem, however, is that those worlds — however imaginable — tend not to stick around for very long, for systemic reasons diagnosed by Maurice Cowling, Karl Popper, Carl Schmitt, and other theorists of liberalism (some of them liberals themselves). Classical liberalism licenses and in many ways structurally encourages the widespread view — indeed the fervent quasi-religious conviction — that the defense of liberty itself requires repression of those who reject liberalism’s premises. Under particular conditions, that repression will become severe, even if it is not logically necessary that it occur. The repression of dissenters from liberalism is a systematic, structural propensity. Exhortation to virtue is no more likely to solve the structural problem than is exhorting oligopolists to refrain from tacit collusion and price-fixing. One must instead break up the structure that predictably — even if not necessarily — produces the relevant ills. 

    In this way, classical liberalism resembles a soap bubble. The issue isn’t whether virtuous classical liberalism can exist, but for how long, and how robust or fragile it is when buffeted by environmental conditions. In the closely related context of theological liberalism, Cardinal Newman argued that liberalism was an unstable half-way house between atheism and Rome. Mutatis mutandis, that is the argument that needs responding to, not the straw men of logical possibility and necessity.


    Adrian Vermeule


(Some material in this post previously appeared on Twitter).

June 15, 2018 | Permalink

Thursday, June 14, 2018

A Point of Contact, and an Agenda for Further Study: Thoughts in Response to Rick

Like Rick, I have been enjoying the ongoing ferment about liberalism and the American founding/experiment/project. It's a fun time to listen to what people have to say on the question and hear different points of view. I don't have fixed views on the genealogical doubts that Rick raises (curious to hear from others on that front), though I am in agreement that the diagnostic program--still in its infancy--is an exciting one that offers a lot for the scholar of law or politics who is interested in it.

In the spirit of fostering that program, I wanted to note a point of contact between Phillip and his targets. Phillip says this in his piece

One might accept this defense of our Founding principles yet still press an aspect of the “radical” Catholics’ third criticism — that American liberalism, whatever its original character, has produced a decadent and deplorable legal and moral culture. One might contend that even if the Founders accepted natural law, moral duties, and limits on rights, their account of freedom has proved to be too thin. It provides too much freedom for bourgeois, comfortable self-preservation, what moral theologian Servais Pinckaers calls “freedom for indifference,” and insufficient cultivation of “freedom for excellence.”

An honest assessment of America and our history must acknowledge that there is something to this criticism. The Founders held that the primary purpose of government is to secure natural rights. They believed that a just political order would preserve freedom for its citizens but that it would not command its citizens to use their freedom well.

I'd put the point perhaps slightly differently. It isn't so much that government "would not command its citizens to use their freedom well." It is that government, in at least ostensibly abjuring any interest in the substantive uses of freedom, would neglect this feature of freedom--its affective side--and would in consequence foster, never quite expressly but nevertheless relentlessly, a particular and quite non-neutral understanding of the point of the freedoms it protects. An understanding that would be internalized and entrenched over centuries, whatever the natural rights view defended by Phillip and the likes of Thomas West (whose book is very interesting) may have once looked like.

One might derive from this point of contact (if such it is) between Phillip and the "radicals" a specific research program focusing on different streams of intellectual history during the founding period (e.g., in the church-state context, but certainly not only there) with an eye specifically on the development of the idea of freedom in the subsequent decades and centuries. It may turn out both that the founding generation's ideas about the uses of freedom were quite varied (just as varied as ours are) and that there are reasons for the dominance of certain of these ideas and the recessiveness of others over the centuries.

June 14, 2018 in DeGirolami, Marc | Permalink

Munoz, "Defending American Classical Liberalism"

In recent years, a number of important and interesting critiques of "liberalism", many rooted in the Catholic tradition of social and political theory, have been proposed by leading scholars and thinkers like Patrick Deneen, (our own) Adrian Vermeule and Marc DeGirolami, Ryszard Legutko, Michael Baxter, Rod Dreher, William Cavanaugh, David Schindler, Michael Hanby, etc., etc.  My colleague in Political Science, Phillip Munoz -- a scholar of the American founding -- has written a response.   Check it out.

I tend to agree with many of the critics' diagnoses of the present situation, but to disagree with the stronger genealogical claims (i.e., "what looks like today's illiberal progressivism is really the working-out of liberalism's key premises").  I tend to endorse (cling to?) the Murray-esque view that a relatively thin, primarily procedural liberalism leaves plenty of room for real human flourishing and the freedom of the Church.  But . . . I could be wrong.  I'd welcome others' reactions to Munoz's piece!


June 14, 2018 in Garnett, Rick | Permalink

Wednesday, June 13, 2018

A note about the Georgetown conference on "polarization" in the Church

I was scheduled to attend, but then -- unexpectedly, and to my regret -- had to miss, the recent conference at Georgetown, "Overcoming Polarization in a Divided Nation Through Catholic Social Thought."  (Learn more about the conference, and watch some video, here.)  At Distinctly Catholic, Michael Sean Winters -- who did participate -- shares some reactions.

I think Winters is right to remind us both that "polarization" is not new nor is it worse than it has ever been.  I also share the view that "civility" -- as important as it is -- needs to be discussed and thought about in the larger context of moral (and the morality of) argument.  (See, e.g., Murray:   "[S]ociety is civil when it is formed by men locked together in argument."  And he's wrong (though many other commentators are, too) to suggest that the fact Merrick Garland is not an Associate Justice somehow establishes which of the two dominant parties is more ruthless or determined in its efforts to secure its policy and other aims, especially with respect to judges, but put that aside.  I want to focus on one thing in particular, he said with respect to Prof. Helen Alvare's presentation.

[T]here remains a point of confusion that must be addressed. In the public session, Professor Helen Alvaré, law professor at George Mason University, said that she always thought the dichotomy between "social justice Catholics" and "pro-life Catholics" was a false one, because all of her pro-life friends work at soup kitchens or undertake similar work on behalf of the poor. God bless them. But, Catholic social teaching, while it commends opportunities for charity of the kind Alvaré described, also demands more. It demands justice. It demands that we look at, say, the economy through the lens of Catholic moral teaching and reach moral and anthropological conclusions based on our teaching rather than merely swallowing the dominant Hayekian ideology about markets that is so popular on the right and can be found in the classrooms of the Catholic University of America's business school.

The claim about "dominant Hayekian ideology" is misplaced (because no such "ideology" is "dominant" at CUA or anywhere else; the debate is about the extent, content, and efficacy, not the existence, of economic regulations) but the point about "justice" is worth underscoring.  Winters points out that more than personal charity directed toward the poor is required by the Church's social teachings, and that sounds right.  By the same token, though -- and I suspect Winters would not disagree -- more than support for policies that, one hopes, will result in fewer women becoming pregnant and choosing abortion is required by those teachings, too.  What is "demand[ed]" here is also "justice," and - contrary to the recent suggestion by Fr. Reese -- a "new strategy" that gives up on building a just legal regime, one that recognizes the equality and protects the dignity of each person, is not an attractive one.   

June 13, 2018 in Garnett, Rick | Permalink

"Irish Catholic Hospitals 'Will Have To Perform Abortions'"

The news, given the givens, is probably not all that surprising.   Still, there's something not a little bit . . . chilling about the tone of the PM's diktat.  "It will not, however, be possible for publicly-funded hospitals, no matter who their patron or owner is, to opt out of providing these necessary services which will be legal in this state," for example.  Well, it certainly is and would be "possible" for Catholic hospitals not to be forced to facilitate acts they (reasonably) regard as gravely wrong.  And this:

Mr Varadkar added: "That legislation will allow individuals to opt out based on their consciences or their religious convictions but will not allow institutions to do so.

"So, just as is the case now in the legislation for the Protection of Life During Pregnancy Act 2013, hospitals like for example Holles Street, which is a Catholic voluntary ethos hospital, the Mater, St Vincent's and others will be required, and will be expected to, carry out any procedure that is legal in this state and that is the model we will follow."

The tone's a mix between a bureaucrat in a dystopian novel and a scolding kindergarten teacher.  

So . . . how will/should the Church respond?

June 13, 2018 in Garnett, Rick | Permalink

Catholic Hospitals in Ireland Will Be Required to Perform Abortions

Amazing news from Ireland, hot on the heels of the repeal of Ireland's pro-life provision. The movement from what was prohibited to what is required was...rather rapid. The classical liberal moment lasted about two weeks.

June 13, 2018 in DeGirolami, Marc | Permalink

Tuesday, June 12, 2018

Fr. Justin Brophy on "The Practice of Catholicism and Modern Identity."

In Notre Dame's (excellent) Church Life Journal is an essay by my former student, Fr. Justin Brophy, O.P., called "The Practice of Catholicism and Modern Identity."  Here's a taste:

We are products of our zeitgeist more than we sometimes understand or admit. The Gospel of Jesus Christ transcends time and place, but Catholics themselves are not immune from the influences of the period in which they are born. Simply by virtue of living in the contemporary age, modern Catholics are presented with a set of peculiar difficulties that either explicitly or implicitly affect the practice of their faith.

One of the greatest challenges pressing believers today is what Benedict XVI called the “dictatorship of relativism.”[1] A prevalent part of our worldview is certainly the idea that no objective moral truths exist or that all moral truths are historically conditioned. But relativism is not the only trial modernity presents and further difficulties arise in the response to the relativist mindset. This essay is an attempt to understand one such challenge: a type of intellectualism that I find common among Catholics who come or return to the faith after a period of searching. That is, for many persons who come to the Church to escape the modern predicament, the only criterion against which they can evaluate the answers the Church offers to modern existential questions is their own autonomous judgment. . . .

Even though Christianity cannot completely accommodate itself to any age, the preceding considerations show that in fact all of us are unavoidably creatures of modernity. This is nowhere more evident than in the way many of us come to embrace the practice of faith for ourselves in the modern world.

Perhaps such a realization will also lead to an increase in charity during our disputes with one another. We are all moderns of one sort or another. We are more similar to each other than we are different—and this is to say nothing of our common identity in baptism.

Our faith is not just a set of ideas. It is a relationship with God, who in his very reality is relational, and who has held out a new relationship with us through Jesus. Human beings find meaning and purpose in developing personal relationships with God, Jesus, and each other. While this seems obvious on its face, these relationships can be difficult to realize in the modern predicament. Fear is major impediment to developing such relationships, when encumbered by the intellectualism of the modern age.. . .

June 12, 2018 in Garnett, Rick | Permalink

Murray, "The Return to Tribalism"

I recently read both Patrick Deneen's Why Liberalism Failed and Jonah Goldberg's The Suicide of the West.  Good times.  In the latter, I came across mention of a John Courtney Murray piece that I'd read before but forgotten.  It's called The Return to Tribalism and, on re-reading, it seems both prescient and timely.  Here's a bit:

I suggest that the real enemy within the gates of the city is not the Communist, but the idiot. Here I am using the word "idiot" not in its customary, contemporary vernacular usage of one who is mentally deficient. No, I am going back to the primitive Greek usage; the "idiot" meant, first of all, the private person, and then came to mean the man who does not possess the public philosophy, the man who is not master of the knowledge and the skills that underlie the life of the civilized city. The idiot, to the Greek, was just one stage removed from the barbarian. He is the man who is ignorant of the meaning of the word "civility."

What is our contemporary idiocy? What is the enemy within the city? If I had to give it a name, I think I would call it "technological secularism." The idiot today is the techno-logical secularist who knows everything. He's the man who knows everything about the organization of all the instruments and techniques of power that are available in the contemporary world and who, at the same time, understands nothing about the nature of man or about the nature of true civilization. . . .

June 12, 2018 in Garnett, Rick | Permalink