Thursday, March 26, 2020
In National Affairs, William Haun has a worth-reading essay called "Religious Liberty and the Common Good." He opens with this:
Legal and cultural debates involving religious liberty are converging toward a single question: whether free religious exercise is part of the common good, or what might now be called a society's overall well-being. While Americans have long debated how religious exercise should manifest in the public square, the need for a common good shaped by religious practice went unquestioned. But this has changed over the last generation. Now, American law and culture are questioning whether such debates are worthwhile.
My agreement with much of Haun's essay is, I suppose, overdetermined: Tocqueville and Burke citations, the happy-warrior spirit of the Becket Fund, etc. My take on the Smith decision, which Haun criticizes, is different -- not entirely, not the opposite, but different -- from his, though. Among other things, Haun writes:
The Smith decision presumes a deep tension between religious exercise and the common good. . . . For Smith, the superseding value is majoritarianism: Religious pluralism is good when democratic majorities decide it is worth their solicitude.
This does not seem right to me. Every (plausible) account of religious freedom imposes some limits on religious exercise. The Second Vatican Council's Declaration on Religious Freedom -- the inspiration, in many ways, for the founding of the Becket Fund! -- refers several times to the "just demands of the public order" and assumes that these demands are among the conditions for flourishing that constitute the "common good" of a community. To say (as the Smith decision does) that our particular Constitution did not allocate to judges the authority to revise politically accountable actors' determinations about what those demands are is not, it seems to me, either to make an idol (as opposed to a mechanism) of "majoritarianism" nor is it presume a "deep tension" -- as opposed to "the unavoidable occurence of occasional line-drawing exercises" -- between religious exercise and the common good.
In addition, it's not obvious that "religious pluralism" (by which Haun means, if I read correctly, the diversity in our society of religious views and commitments) is "good" so much as it is given, and its manifestations protected (not without limit, again) by our commitment to religious freedom, which is grounded in human dignity. The extent to which manifestations of this pluralism may or should be regulated, or subordinated to the "just demands of public order" is a question that has to be answered by someone, and it does not seem to me that the Smith resolution of this matter is best interpreted as denying the importance -- the goodness -- of religion.
Wednesday, March 25, 2020
In the latest/current issue of National Affairs (an excellent publication, IMHO), there's a good essay by Ryan Anderson called Proxy Wars Over Religion. A bit:
The past decade has witnessed some intense battles over religious liberty. But when you consider the character of those battles, it's often hard to avoid the conclusion that both sides have treated religious liberty as the subject under debate in order to avoid the real points of dispute between them. The resulting political arguments have given us all the impression that religious liberty is more controversial with the American public than it really is, and therefore that the progressive enemies of religious liberty have the political winds at their back. To recover a clearer sense of the matter, we need to be more careful in what we expect of religious liberty and how we understand it. . . .
This unwillingness to engage the substantive moral debates that actually divide us in the culture war leaves us fighting proxy wars over religious liberty. These wars confuse the issue, and put at risk our capacity to defend the rightful place and purpose of religious liberty. . . .
Congratulations to my friend and colleague, Carter Snead, on his forthcoming (timely, important) book, What It Means To Be Human. As longtime MOJ readers know [Ed.: All too well, Rick; you never shut up about it.] The issue of moral anthropology is at the heart and foundation of any plausible account of "Catholic Legal Theory." Here's a blurb:
The natural limits of the human body make us vulnerable and therefore dependent, throughout our lives, on others. Yet American law and policy disregard these stubborn facts, with statutes and judicial decisions that presume people to be autonomous, defined by their capacity to choose. As legal scholar O. Carter Snead points out, this individualistic ideology captures important truths about human freedom, but it also means that we have no obligations to each other unless we actively, voluntarily embrace them. Under such circumstances, the neediest must rely on charitable care. When it is not forthcoming, law and policy cannot adequately respond.
What It Means to Be Human makes the case for a new paradigm, one that better represents the gifts and challenges of being human. Inspired by the insights of Alasdair MacIntyre and Charles Taylor, Snead proposes a vision of human identity and flourishing that supports those who are profoundly vulnerable and dependent―children, the disabled, and the elderly. To show how such a vision would affect law and policy, he addresses three complex issues in bioethics: abortion, assisted reproductive technology, and end-of-life decisions. Avoiding typical dichotomies of conservative-versus-liberal and secular-versus-religious, Snead recasts debates over these issues and situates them within his framework of embodiment and dependence. He concludes that, if the law is built on premises that reflect the fully lived reality of life, it will provide support for the vulnerable, including the unborn, mothers, families, and those nearing the end of their lives. In this way, he argues, policy can ensure that people have the care they need in order to thrive.
In this provocative and consequential book, Snead rethinks how the law represents human experiences so that it might govern more wisely, justly, and humanely.
I've read the MS, and it's wonderful, in the tradition of Meilaender, Kass, MacIntyre . . .
Wednesday, March 18, 2020
An interesting piece by the always-perceptive John Allen:
Amid the scramble to find a cure for the coronavirus and, in the meantime, to enforce restrictive measures to try to slow down its expansion, there’s been relatively little attention to the underlying factors which may explain why some places have been harder hit, more quickly, than others.
One emerging hypothesis, however, is that there may be a correlation between declining fertility rates and rapidly rising elderly populations in many societies around the world, and the extent to which those societies have been impacted by the coronavirus.
For the Catholic Church, which has sounded alarms about declining fertility for decades, the situation could offer a grim confirmation of its diagnosis that a rapidly aging society places its future in jeopardy – though no one’s likely to celebrate that it’s required a global pandemic which, to date, has claimed more than 7,000 lives, to put the issue back on the table. . . .
Read the whole thing.
Monday, March 2, 2020
It is, I realize, fashionable to roll one's eyes (or do worse!) over David Brooks's meaning-mongering, but . . . I thought this essay, "The Nuclear Family Was a Mistake", was a really good read. (I'd also recommend Brad Wilcox's response.) In more than a view places, Brooks touches on themes that resonate with Catholic anthropology. For example:
As factories opened in the big U.S. cities, in the late 19th and early 20th centuries, young men and women left their extended families to chase the American dream. These young people married as soon as they could. A young man on a farm might wait until 26 to get married; in the lonely city, men married at 22 or 23. From 1890 to 1960, the average age of first marriage dropped by 3.6 years for men and 2.2 years for women.
The families they started were nuclear families. The decline of multigenerational cohabiting families exactly mirrors the decline in farm employment. Children were no longer raised to assume economic roles—they were raised so that at adolescence they could fly from the nest, become independent, and seek partners of their own. They were raised not for embeddedness but for autonomy. By the 1920s, the nuclear family with a male breadwinner had replaced the corporate family as the dominant family form. By 1960, 77.5 percent of all children were living with their two parents, who were married, and apart from their extended family.
Interestingly, many "progressives" who will (reflexively?) recoil from what might seem "conservative" in Brooks's piece also tend to support a political figure, Sen. Elizabeth Warren, who made many consonant points in her "controversial" 2004 book, The Two Income Trap.
Friday, February 28, 2020
In the Church Life Journal, a great piece from Pierre Manent. A bit:
I believe that the most precise way to designate what afflicts us, what troubles and demoralizes us, is to say simply: we no longer know what law is; we have lost the intelligence of law. The point is not to deplore that we disobey the law, that our morals are disordered, that the youth, as is often said, are without standards—all that is perhaps true, but the main point is that we no longer understand what the law is about. We no longer understand law according to its essence. We no longer understand law as the rule and measure of action. Our most urgent task is therefore to recover the intelligence of law as rule and measure of action. Thomas Aquinas is certainly the author who can best help us—Christians as well as non-Christians confronted with the loss of law’s meaning—to carry out this task, if only we make the effort to understand his work in its full amplitude. Our purpose is nevertheless not so much to expound Thomas’s restorative views as to examine our predicament more closely.
I have said that we have lost an understanding of law, or law’s intelligence. We have not lost it by inadvertence or negligence. We have lost it because we wanted to lose it. More precisely, we have fled from law. We are still fleeing from it. We have been fleeing from law since we took up the project—let us call it “the modern project”—to organize common life, the human world, on a basis other than law. We have been fleeing from the law since we undertook to regulate our actions otherwise than by law, to seek the rule of our actions elsewhere than in law. This is not a matter of a moment’s distraction or mistake. What is at stake is an immense enterprise to which we owe, for better and for worse, the driving and ordering of our common life over three or four centuries.
Thursday, February 13, 2020
It's more than a little jarring, for me, to be reminded that blogs (or the Internet, or computers) have existed for 16 years, but there it is. Anyway, back in February of 2004, our merry band -- several whom are still with us! -- launched this blog, "dedicated to Catholic legal theory." My very first post was called "Law and Moral Anthropology" - theme I've returned to (probably too) many times over the years. Here's a bit, and I am not sure my thinking has changed much:
One of our shared goals for this blog is to . . . "discover how our Catholic perspective can inform our understanding of the law." One line of inquiry that, in my view, is particularly promising -- and one that I know several of my colleagues have written and thought about -- involves working through the implications for legal questions of a Catholic "moral anthropology." By "moral anthropology," I mean an account of what it is about the human person that does the work in moral arguments about what we ought or ought not to do and about how we ought or ought not to be treated; I mean, in Pope John Paul II's words, the “moral truth about the human person."
The Psalmist asked, "Lord, what is man . . . that thou makest account of him?” (Ps. 143:3). This is not only a prayer, but a starting point for jurisprudential reflection. All moral problems are anthropological problems, because moral arguments are built, for the most part, on anthropological presuppositions. That is, as Professor Elshtain has put it, our attempts at moral judgment tend to reflect our “foundational assumptions about what it means to be human." Jean Bethke Elshtain, The Dignity of the Human Person and the Idea of Human Rights: Four Inquiries, 14 JOURNAL OF LAW AND RELIGION 53, 53 (1999-2000). As my colleague John Coughlin has written, the "anthropological question" is both "perennial" and profound: "What does it mean to be a human being?” Rev. John J. Coughlin, Law and Theology: Reflections on What it Means to Be Human, 74 ST. JOHN’S LAW REVIEW 609, 609 (2000).
In one article of mine, "Christian Witness, Moral Anthropology, and the Death Penalty," I explore the implications for the death penalty of a Catholic anthropology, one that emphasizes our "creaturehood" more than, say, our "autonomy." And, my friend Steve Smith (University of San Diego) has an paper out that discusses what a "person as believer" anthropology might mean for our freedom-of-religion jurisprudence that fleshes out excellent article. I wonder if any of my colleagues have any thoughts on these matters?
Friday, February 7, 2020
I enjoyed this piece, "Friendship in a Time of Cyberattack," by my theorist-and-theologian friend (and fellow Duke Blue Devils fan!), Mike Baxter. Pope Francis, Guardini, Pieper, Berry, Simon, and MacIntyre all make appearances in Mike's discussion of friendship, time, technology, the university, and the polis. Here's just a little bit:
What the cyberattack did for us at Regis is open up the possibility of recognizing how our life and work together is so deeply dependent on digital technology and to consider the ways it could be enhanced by making ourselves less dependent on it. . . .
The cyberattack also created commonality between faculty and students, for we were in the same boat, with emails failing, assignments not posting, tests and exams running late. More importantly, there was a more personal touch to the interactions between students and faculty. Papers were graded by hand, in the penmanship of the grader. With no email, more students came by during office hours to ask about something. And there was a deeper sense that class was going to occur in the classroom, with everyone together, rather than dispersed through list-servers, online bulletin boards, and such. Finally, most importantly, it created common ground among faculty, for the simple fact that there was more time, what with fewer meetings, no department and college wide assessments to do, and so on; and with more time comes more conversations about what we are teaching and working on. An added factor here was that with on-line resources down, intellectual conversation is more likely to occur locally, which can be surprisingly fruitful. In other words, with our on-line capacities down, we were less able to have conversations with colleagues across the country and found ourselves drawn more into talking with colleagues down the hall or in the building across the quad.
In these (and other) ways we found ourselves gifted with the time and space for cultivating or renewing friendships in all the varieties and permutations discussed by Aristotle: utility, pleasure, among equals, among those older and younger, and, most importantly, true friendship, based on a common pursuit of the good. . . .
Thursday, January 30, 2020
Here is a short chapter I wrote -- a bit outside of my usual writing-area -- for a forthcoming volume called Christianity and the Criminal Law, on "Attempts, Complicity, Virtue, and the Limits of Law." The abstract:
The law and doctrines of criminal attempts and complicity illustrate the longstanding and fundamental tenet of Anglo-American criminal law that the blame and condemnation of the political community, which gives criminal punishment its distinctive character, attaches primarily to actors’ states of mind rather than to the harms they cause or results they bring about. This focus on blameworthy states of mind both reflects and has been shaped by the similar emphasis in Christian scripture, tradition, and moral teaching. And so, an examination of criminal attempts and complicity is an opportunity to explore Christianity’s influence on the theory, content, and operation of the criminal law. It also reminds us of a central Christian concern that is and has been located, for the most, outside the scope of the criminal law: Christian moral teaching not only enjoins the avoidance of wrongful acts, but also the cultivation and practice of virtue. A Christian life of discipleship, it has been said, “is not simply about performing certain types of actions. It is a vocation, a transformation of one’s very self.” However, this aretaic dimension of Christian morality and moral theology, unlike the nexus between culpability and choice, is difficult to find in the criminal law, which is inclined more toward proscribing acts than prescribing character, more toward forbidding bad conduct than facilitating good character, more toward deterring decisions than transforming selves. It is worth asking why.