Mirror of Justice

Irony and Tragedy: Reply to Marc

Thanks, Marc, for the thought-provoking responses to my questions about irony and tragedy as approaches to understanding religious-liberty (and other) conflicts. Here are a few quick responses. A tragic diagnosis might be more accurate than an ironic one*/ on balance, or for some range of cases—say, the most difficult and vexing ones. That is, there’s surely some point where values and ways of life become incommensurable, no moral appeal to more general commonalities is sufficiently relevant or persuasive, and the only possibility is a pragmatic compromise that heads off worse harms. Both I and (as you mention) Niebuhr acknowledge that. And many of the pro-religious-exemptions arguments made by Berg-Esbeck-Garnett-Laycock-Wilson et al. are self-consciously pragmatic. The question, I think, is how quickly we should reach the conclusion that case-by-case compromise is all there is; or whether moral appeals to a sense of irony or humility can have any significant effect in meaningful cases of conflict. I think you’re saying “No they can’t,” and I have a few reactions.   

1. That seems to me too much of a blanket denial. As I see it (and I think as Niebuhr saw it), human beings have highly divergent beliefs and projects stemming from their different situations, experiences, and attitudes; but they also share certain commonalities at more general levels, and they have some capacity to recognize those commonalities. You say that “[t]he opposing sides [in religious-freedom disputes] are not making the same sorts of claims, because the claims they make about liberty or equality are grounded in very different views of the human good and of the moral life.” You say that they cannot accept in principle any liberty or equality claims of the other side, because “[t]he other side’s success inevitably detracts from the larger moral vision.”

     I doubt that this reflects our constitutional system—even in its reality, not just in its rhetoric—or that it could sustain that system. The same things could be said be said about even the most basic rights of religious freedom—or to pick a value that seems to be accepted across the constitutional spectrum today, the most basic rights of freedom of speech. The other’s side ability to congregate even in private, or to exercise the most minimal ability to express its views, also “inevitably detracts from the larger moral vision” of its opponents. Is it the situation that there is no commitment in principle to any shared meaning of freedom of speech, even at the core—that every protection of even the most basic ability to speak reflects no more than a case-by-case compromise? I concede that as the cases get “harder,” they become more difficult, and eventually impossible, to resolve through consensus principles; each side will point to a plausible general-consensus principle that supports its position, and the conflict cannot be fully resolved by either principle. But before we reach that point, it seems to me, there are many cases where a lot of people can say, “I disagree strongly with your underlying beliefs or views—I may even despise them—but I can see that you are asserting a legal claim that in principle falls in the same category as mine.”

Continue reading

Review of "Reading Law" by Justice Scalia and Bryan Garner

Commonweal has posted my review of Reading Law: The Interpretation of Legal Texts, by Justice Antonin Scalia and Bryan A. Garner. The piece is behind a paywall, I'm afraid. The review reflects on the nature and value of the canons of textual interpretation--the book's primary focus. Indeed, it might have been better if the canons had been the book's exclusive focus. The sections devoted to constitutional theory are not the best parts of the book. The review also discusses the sense in which--notwithstanding the skeptical criticism that has been leveled at them throughout the realist period and thereafter--the canons create something like a linguistic tradition for lawyers. Here is a fragment:

Some of the most interesting studies of law approach it as a distinctive tradition. And like many traditions, law has its own language which informs and suffuses the thought of those who think and speak through it. If the language of the law is not preserved—if it decays through lack of use, disregard, or skeptical dismissal as just so much transcendental nonsense—then the tradition of law dies as well . . . .The core aim of the book is to retrieve and systematize one of the law’s most important and enduring linguistic traditions—the canons of textual interpretation. The canons are not rules as much as rules-of-thumb, presumptions about the meaning of legal texts. Skill in legal interpretation involves the capacity to discern when a canon should, and should not, yield to countervailing considerations . . . .

Reading Law is, as the authors put it, a normative treatise that introduces the language of law to an audience for whom it is largely alien while offering a refresher course for attorneys and judges who have forgotten (or who never really learned) their canons. Like all treatises, the point is not to read through from front to back and I cannot recommend marching through the book’s 414 pages (that’s before the appendices). No one who isn’t looking for it will much miss the “Scope-of-Subparts Canon” explaining the relationship of subparts to parts, or the “Punctuation Canon,” which warns against “hostility to punctuation” and whose examples include various obscure nineteenth-century precedents involving the use of semicolons. But lawyers faced with interpretive problems will find in Reading Law a pathway to a set of linguistic precepts that structure and enrich the tradition of American law. That is a worthy contribution.

"Critiques of the New Natural Law Theory"

The most recent issue of the National Catholic Bioethics Quarterly (Spring 2013) is devoted to critiques of the new natural law theory (NNLT). The issue contains articles by Father Kevin Flannery SJ, Steven Long, and John Goyette and shorter essays by Fulvio Di Blasi, Matthew O'Brien, Michael Pakaluk, and Edward Feser. Many of the pieces focus on the NNLT's understanding of intention, an issue that has been featured in earlier discussions on Mirror of Justice of issues such as craniotomy and the treatment of ectopic pregnancies.  

Richard M.

Continue reading

"The World as it Could Be: Catholic Social Thought for a New Generation"

My friend, Fr. Thomas Williams, has a brand-new book out on Catholic Social Thought, called "The World as it Could Be."  Here's one blurb:

Providing insight and into the world's most pressing concerns--those of human rights, human dignity, and world peace--bestselling author and priest Thomas D. Williams adds his reassuring voice to the panoply of issues that call to question the meaning of faith. One of the most trusted and dynamic voices from the Catholic community and the official Vatican analyst for CBS News, Father Williams helps parishioners step back from today's controversies and understand Catholic teachings in a deeper way. Addressing the most heated debates ripped from national headlines and fervently discussed between Catholics--from abortion and capital punishment to the economy--Father Williams draws upon his years of teaching in this detailed yet accessible analysis of the moral dilemmas and political challenges that Catholics face every day. Examining these moral conflicts, and the often opposing forces of individual rights versus those of the community, Father Williams speaks to orthodox Catholics and non-Catholic observers alike in this examination of the Catholic faith, it's influence around the world, and what it teaches millions of followers about human rights and a better world.

The "Tournament of Novels" at First Things

My own mind tends to focus more on other tournaments during March but . . . the good folks at First Things are running their "Tournament of Novels" over at the First Thoughts blog.  Head over and vote (early and often) for Cormac McCarthy's Blood Meridian (and four others of your choice).  My four, for what it's worth, were The Brothers Karamazov, The First Circle, Silence, and The Power and the Glory.

A justified cavil from a reader

An MoJ reader has written to express agreement with what I posted about the Kennedys, but to "cavil" as he put it, on one point.  I said that JFK did not "even try" to impose his religion on himself.  The reader points out that none of us can say that definitively, since no one can read another's heart.  He's right.  I should have said that nothing in the historical record demonstrates efforts by Kennedy before or during his presidency to stop committing adultery---on moral grounds, at least. There was a point shortly before his election as President when he lamented to a confidant that it would be impossible, as a practical matter, to continue his womanizing while in the White House.  Very quickly after his inauguration, however, he discovered ways to keep it going.  There is much in the record to show that after acts of adultery he immediately began planning future such acts and making the arrangements necessary to pull them off without being exposed and damaged politically.

John Allen and Globalization

This is the seventh installment of our examination of John Allen’s book, The Future Church.This time, we consider with Allen the Church in relation to globalization.

Continue reading