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.

Friday, September 18, 2020

Debating the Legalization of Physician-Assisted Suicide in the Covid Era

On Sep. 30, I'll be moderating a Murphy Institute program on the legalization of physician-assisted suicide that was originally scheduled for this past March.  So much about our world has changed since then, including the social context and political landscape of debate on this topic.  Please join us as we explore these issues, in a Covid-era, user friendly, free and travel-less webinar.

 
 

Hot Topics: Cool Talk - Physician Assisted Suicide

Wednesday, September 30

3:30-5:30pm CST

This is the rescheduled date for the program, originally planned for March 18.

Register

Assisted suicide is currently legal in ten jurisdiction in the United States: California, Colorado, District of Columbia, Hawaii, Montana, Maine (starting January 1, 2020), New Jersey, Oregon, Vermont, and Washington. Efforts are underway in many other states (including Minnesota) to enact similar laws. Join us in this extended edition of our Hot Topics: Cool Talk event series for a spirited but civil conversation about such laws between two advocates who take opposing views on this issue.

Registration is encouraged as space is limited.  An email reminder along with a link to join the webinar will be sent to the address provided at registration to those who register prior to 12pm on September 30.  The webinar link will also be made available on the event webpage.  

2.0 CLE credit approved.  This program is free and open to the public.

Speakers


John B. Kelly, Director of Second Thoughts MA: Disability Rights Advocates Against Assisted Suicide and New England Regional Director of Not Dead Yet.


Thaddeus M. Pope, Director of the Health Law Institute at Mitchell Hamline School of Law, co-author of The Right to Die: The Law of End-of-Life Decisionmaking, and director of the Medical Futility Blog.

 

[email protected]
https://www.stthomas.edu/murphyinstitute/

 
 

September 18, 2020 in Schiltz, Elizabeth | Permalink

"Law Like Love": Jeff Murphy, RIP

Following up on Marc's post, I was very sorry to learn of the passing of Prof. Jeffrie Murphy.  He was a wonderful scholar, deeply engaged with moral questions, and -- to me -- a kind and generous mentor when I started teaching Criminal Law (and since).  For several years now, I've been concluding my course with his "Law Like Love" essay.  Take a look.  Here's the SSRN abstract:

This is a transcript of the Kharas Distinguished Lecture that was delivered in March of 2004 at Syracuse University College of Law. John Rawls has famously said that justice is the first virtue of social and legal institutions. This lecture seeks to open a discussion of the question: What would law - particularly criminal law - be like if we regarded love (agape) as the first virtue of social and legal institutions? The lecture discusses punishment - including capital punishment - in a framework of love, and critically considers the claim frequently made that love-based forgiveness is inconsistent with capital punishment and perhaps with all punishment.

September 18, 2020 in Garnett, Rick | Permalink

Jeffrie Murphy RIP

Jeffrie Murphy, a wonderful philosopher of criminal law and ethics, has died. One of the many things about which he wrote insightfully and with penetration concerned the relationship of retributivism and Christianity, as in his excellent book, Getting Even: Forgiveness and Its Limits (see the final Chapter 9) (2003). 

Here is a little something from his book chapter, "Some Second Thoughts on Retributivism," in the collected volume of essays, Retributivism: Essays on Theory and Policy (Mark D. White, ed. 2011), which shows both the power and the danger of Murphy's distinctive (and, to my mind, highly persuasive) account of retributivism:

I moved away from regarding desert merely as legal guilt and also from regarding it as merely owing a debt. But I still had very strong retributivist intuitions--and was even prepared to defend some degree of vengeance and, in the book Forgiveness and Mercy that I joint authored with Jean Hampton, to defend an emotion that I called "retributive hatred." Gradually I began to realize that what had always really drawn me to retributivism was some version of Kant's idea of punishing not just wrongdoing, but human evil--vile deeds performed by people of "inner viciousness." I learned that such a notion had even found its way into American homicide law where phrases such as "cruel, heinous, and depraved" and "flowing from a hardened, abandoned, and malignant heart" occurred in statutes and in sentencing guidelines. This appealed to me.

Such a strong notion of just deserts is, of course, in some ways a secular analogue to traditional notions of divine justice--the judgment that God will administer in the Last Assizes. Indeed, Michael S. Moore (the legal philosopher, not the maker of propaganda films) defends a robust version of retributivism very like the one that I am sketching here but claims that if he believed in God, he would not be so concerned to organize secular systems of criminal law around retributive values. As an atheist, however, he sees no other way to target moral desert in punishment and regards this value as too important to leave unrealized. This analogy with divine punishment is interesting; but it should, I now believe, alert us to some dangers in thinking of secular punishment along these lines. It is not for nothing that we often find ourselves condemning people who--as we put it--"play God," and even Scripture famously teaches, "Judge not that ye be not judged."

The Living Bible, that wonderful source of unintended theological humor, once rendered (if I recall correctly) that biblical recommendation as, "Don't criticize, and then you won't be criticized." But the true point of the passage is surely not a prohibition against making any critical moral judgments at all, but is rather a caution against making final judgments of deep character to declare any fellow human being as simply vermin or disposable garbage--evil all the way down--and a legitimate object of our hatred.

September 18, 2020 in DeGirolami, Marc | Permalink

Thursday, September 17, 2020

Bishop Cordileone on "Americans’ right to worship is being denied by governments"

In today's Washington Post, Bishop Salvatore Joseph Cordileone of the San Francisco Archdiocese calls out the government of the City of San Francisco for its discrimination against religious worship, including the Catholic Mass, in its Covid-related restrictions.  The full piece is here.

St-Marys-Cathedral-SF-19

Bishop Cordileone strikes just the right balance, in my estimation, noting the legitimate role of government in establishing health regulations to protect the public during the pandemic, including safety rules for churches and worship services.  But he rightly objects to the city's heavier restrictions on churches and worship than on shopping and other economic activities.  And he reminds of our need for spiritual nourishment in the Mass, which cannot be fully obtained virtually. As he quotes one parishioner, “Why can I spend three hours indoors shopping for shoes at Nordstrom’s but can’t go to Mass?”

Bishop Cordileone recognizes that the reason for this constitutionally invalid mistreatment of churches is less likely to be malice toward religion and more likely to result from the apathy of a secular elite that increasingly dominates in governments.  Because they do not share a robust faith, they simply do not think of or regard religious worship as something important.  We must strongly resist that unlawful attitude.

He concludes with this:

All we are seeking is access to worship in our own churches, following reasonable safety protocols — the same freedoms now extended to customers of nail salons, massage services and gyms. It’s only fair, it’s only compassionate, and, unlike with these other activities, it’s what the First Amendment demands.

September 17, 2020 | Permalink

St. Robert Bellarmine (and Thomas Hobbes)

Here is a reprise of a post of mine from a few years ago about St. Robert Bellarmine on his memorial day, including a mention of the striking fact that Thomas Hobbes encountered Bellarmine from afar in Rome in 1614:

A few things for today's Memorial of Saint Robert Bellarmine (1542-1621), the Counter-Reformation Jesuit cardinal and one of the great political theorists in the Catholic tradition:

Pope Benedict XVI's reflection on Bellarmine's legacy as a doctor of the Church is available here.

My friend Matthew Rose published a brilliant paper on Hobbes and Bellarmine in the Journal of Moral Theology over the summer (available here at page 43). A bit from that:

In the pope’s private chapel on All Saints Eve in 1614, an elderly Robert Bellarmine joined a group of fellow cardinals and Pope Paul V for Vespers. At the time an advisor to the Sacred Congregation of the Universal Inquisition, Bellarmine could not have known he was being closely watched by a visitor, then in his late twenties, who would go on to compose the most important political treatise in the English language. The tutor to William Cavendish seems to have made a special point of bringing his pupil to see the Cardinal, whom his travel journals describe as a “little, lean old man” distinguished for his “rank” and “learning.”

Some thirty-five years later Thomas Hobbes would complete his observations of Bellarmine, granting him the distinction of being the only modern author identified by name in Leviathan.

….

Hobbes’s attack on Bellarmine is arguably the most mature expression of a debate between temporal and spiritual authority that had grown steadily in sophistication since the eleventh century. In the pages of Leviathan, it can for the first time be fairly described as a debate between the church and the fully modern state. Its most interesting feature is that, unlike previous iterations, it is not fundamentally about rival jurisdictions. Hobbes instead challenges Bellarmine with a rival account of Christianity itself, one that aims to show how classical forms of Christian theology need to be reformed by enlightened modes of thought. Hobbes argues that the pope’s “indirect power”—his alleged spiritual authority over temporal matters that involve man’s supernatural end—reflects a defective understanding of both revelation and reason.

Matthew Rose, "Hobbes contra Bellarmine," 4 Journal of Moral Theology 43 (2015), at 43, 45 (citations omitted).

And then this appreciation (qualified a bit later) from John Courtney Murray, SJ writing in Theological Studies:

An appreciation of Bellarmine's political theology must needs be generous; here it may also be brief. His defense of the permanent and absolute principles on which that theology rests was brilliant and effective. The essence of the "common cause" that he defended was, of course, the distinction of the two powers. Bellarmine gave it a newly luminous statement by his emphasis on the purely spiritual power of the Church, and by his elaboration of Thomistic political philosophy. In this respect he effected a doctrinal advance within the Church herself, by finally disposing of the confusions and exaggerations of the hierocrats. Moreover, out of this doctrinal synthesis, by analysis of its terms, he drew a newly effective statement of the second great principle that is part of the Catholic "common cause"; I mean the primacy of the spiritual power and the subordination of the temporal power. Here he did a service not only to the Church but to the spiritual freedom of mankind, in that he set a stern barrier to the tyrannical pretensions of royal absolutism. His doctrine shattered all three elements of the theory of "divine right": the exclusive rightness of the monarchical form of government, the belief in an individual monarch's inalienable right to govern, possessed independently of human agency, and the assertion of the irresponsibility of the king—his absoluteness. Here was a political as well as a theological achievement of a high order.

"St. Robert Bellarmine on the Indirect Power," 9 Theological Studies 491 (1948), at 532.

September 17, 2020 in Moreland, Michael | Permalink

A quick response to John Carr on "Faithful Citizenship" and the election options

John Carr has an essay in America called "I helped write the bishops' first document on Catholics and voting.  Here's why I'm voting Biden, not Trump."

I have great respect for Carr, his work, and his consistent practice of thoughtful, charitable engagement.  And, I have no interest in litigating his bottom-line conclusion, which I am entirely confident was reached after careful reflection, regarding his voting choice.  (I'll be voting, again, for Mitch Daniels, who would -- were it not for that narcissistic dunderhead Jon Huntsman -- be wrapping up an outstanding 8-year run as President.  Sigh.) 

I will note (I cannot help it) that, having followed Mr. Biden's career for many years, and recalling well -- among other things -- his craven position-changes, his plagiarism habits, and the serious damage he has done to the judicial-confirmation process, I see no evidence to support Carr's view that Biden "has the character, integrity and competence to serve" (unless, perhaps, he is judged against the pretty low standard of his opponent's "character, integrity, and competence").

Four quick things, though, regarding Carr's essay:  First, Carr appears to endorse the suggestion in Faithful Citizenship that there is at least a prima facie moral obligation to vote, in a presidential election, for one of the candidates on the ballot.  (Faithful Citizenship calls not voting an "extraordinary step.")  But, this suggestion is misplaced; indeed, with all due respect to the bishops, it seems clearly incorrect.  There is no obligation to vote, or even a presumption that one ought to, in any particular election.  Engagement in the life of the political community, and prudent efforts to cooperate with others for the common good, may and does take many forms.  See, e.g., my "Neither of the Above", from four years ago.

Second, Carr appears to endorse the (common) frame, or narrative, that, when it comes to issues that faithful and engaged Catholics should care about, it's only with respect to abortion that the Democrats currently fall short.  We should all be clear-eyed:  A Biden-Harris administration (that is, an administration staffed by the people whom that administration will appoint) will produce very bad policy on religious freedom, educational choice, higher-education regulation, a range of "cultural"/"moral" questions, etc.  Again, the point here is not to challenge Carr's bottom line.  But the "Catholics are not single-issue voters" observation is too often invoked in a way that neglects the fact (and it is a fact) that more than one Republican position (or, at least, the positions of "normal" Republicans) is better, from a Catholic point of view, than the Democratic one.

Third, Carr states that "we vote for candidates, not issues."  I agree, to be sure, that the character of our political leaders matters.  (This is one of the many reasons why Sen. Dole seemed so obviously preferable, to me, to Pres. Clinton in 1996.)  But, in terms of the bottom line, Carr is wrong.  We do not have a king.  In fact, we vote -- or, at least we should -- for administrations, appointees, congressional majorities, committee chairs, agendas, and policy outputs, not (simply) "candidates."

Finally, with respect to judges.  For me, and I suspect for others, among the most welcome outputs of the Trump administration has been the nomination and confirmation to the federal bench of judicial conservatives.  In my view, Catholics have good "Catholic" reasons for wanting judges who at least aspire to avoid legislating or policy-making and who, instead, confine themselves to (as best they can) interpreting and applying the laws and regulations that are enacted and promulgated by others.  Carr complains that these judges -- even if they vote to uphold abortion regulations -- "vote against voting rights, immigrant rights, workers’ rights, affirmative action and environmental justice" but, as I see it, this complaint is misplaced.  Even if Carr were right (and, about some, he might be) about the best policy answers in these areas, it is not the place of judges to vote "for" these various matters as such, but instead to interpret and apply the relevant positive law, which may, or may not, have the content Carr likes.

All that said, and again:  Our public life would be better if we had more John Carrs.

September 17, 2020 in Garnett, Rick | Permalink

Tuesday, September 15, 2020

Journal of Law and Religion - Volume 35, Issue 2 - Free to read until October 15, 2020

In this new issue of the Journal of Law and Religion, the forms and limits of religion and state interaction are explored from a variety of perspectives.

September 15, 2020 | Permalink

Friday, September 11, 2020

The Buddy System for Political Dialogue

In our current politically polarized terrain, when it comes to cross-party dialogue about the upcoming election, many people I know - on both sides of the aisle - are close to despair about having fruitful conversation with "the other side."  What if we change the frame - to ask how we might help each other to grow in charity in the way that we communicate our ideas?  This very short Catholic News Service piece offers a few ideas for how to implement a buddy system for political dialogue. 

Amy Uelmen

September 11, 2020 in Uelmen, Amy | Permalink

Meet the Notre Dame Law School Religious Liberty Initiative's First Student Cohort

Notre Dame Law School is hitting the ground running with our Religious Liberty Initiative. We’ve already assembled the first cohort of five students, who will be helping write a Supreme Court amicus brief this semester and providing research to lay the foundation for the strategic vision for the Religious Liberty Clinic.

Meet the first group of outstanding students participating in the Religious Liberty Initiative this year.

September 11, 2020 | Permalink

Thursday, September 10, 2020

My annual voluntary pledge to students, their parents, and my colleagues (feel free to join me)

With the new academic year now underway, I repeat my annual pledge to my students, their parents, and my fellow professors:

1) I will educate my students, never indoctrinate them.

2) When addressing controversial moral, political, and other questions, I will ensure that my students are exposed to the strongest arguments that have been advanced on the competing sides.

3) When it comes to such questions, my reading lists will include writings by the best scholars representing various perspectives.

4) When I advocate a particular view in class, I will acknowledge that there are reasonable people of goodwill who disagree and encourage students to consider their arguments before resolving the question in their own minds.

5) I will bear in mind that my role as a teacher is not to tell my students WHAT to think, but to encourage and help them to think more deeply, critically, and for themselves.

September 10, 2020 | Permalink