Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Tuesday, June 11, 2019

To Fr. Jim Martin, a good and kind man--and my friend

Dear Fr. Jim: Twitter is probably not the best place for the discussion I’d like to have, but I would like to make a few points here in defense of Pope Francis and of the teachings of the Church that are strongly reinforced in the recent document about which you, in your laudable compassion, have expressed reservations and concern.

Among the greatest achievements of Christianity is its thoroughgoing rejection of the separation of self and body that one finds in, for example, Platonism, Cartesianism, and (most pertinently) various forms of gnosticism—ancient and modern. The temptation to embrace such separation is perennial, but the Church has always resisted it and borne faithful witness to the unity of the human person—body and spirit. We human beings are not “ghosts in machines.” We are our bodies (whatever else we are) and do not merely “inhabit” them and use them as extrinsic instruments of the supposed “real self,” considered as the psyche, spirit, or soul. The body, male or female, far from being a subpersonal object to be used and even manipulated by the “self” or “person,” is part of—an irreducible aspect of—the personal reality of the human being.

This understanding of the human person—this philosophical anthropology—undergirds the moral truths proclaimed by the Church, including (among many others) those pertaining to marriage and sexual morality, and to the sanctity of human life. To reject it is to cut the rug out from under those truths. It is this anthropology that is at stake in the debate over sexual or gender identity. To affirm that the human person is his or her (male or female) body is by no means to suggest that persons who experience gender dysphorias “do not exist.” Nor is it to suggest that such persons are anything less than bearers of profound, inherent, and equal dignity, precious brothers and sisters who deserve to be not only respected, but loved and cherished.

To respect, love, and cherish a person, however, does not require us—and sometimes does not permit us—to endorse their philosophical or ideological beliefs or, a fortiori, to affirm choices they may make in light of those beliefs. A standard rhetorical move one encounters when one makes this point is the claim that a person’s “truth” (especially the truth about his or her “identity”) is established by his or her “lived experience.” But experience (including “lived experience”) is not self-validating. To suppose otherwise is to fall into a form of subjectivism that Christianity, Judaism, Islam, and, indeed, all sound philosophy firmly rejects. Our feelings are real, but they do not determine reality—even the reality of one’s identity as a human being. A dysphoria, whether it is a gender dysphoria or a dysphoria of another type, may cause a person sincerely—and intensely—to feel that he or she is something other than what he or she is, but it cannot make him or her into what he or she feels he or she is. Feelings are indeed subjective; but fundamental anthropological truths are objective.

Of course, to disrespect someone who experiences a dysphoria of any type, including a gender dysphoria, is wrong. To ridicule, mock, or taunt someone who is trying to deal with a dysphoria, is cruel and grotesque. It is, indeed, unChristian and, to be bluntly judgmental, sinful. And this is true irrespective of whether an individual who experiences a dysphoria deals with it in a way that we believe (or the Church teaches) does justice to our obligations to the truth about the human person and his or her identity. I have always praised and commended you for defending the humanity and dignity of all people--including those who self-identify as “sexual minorities,” including those who identify as transgender. But I hope that you will also, particularly in your one-on-one pastoral ministry and in your public commentary, found your work on the truths proclaimed by the Church about our embodied nature as male and female.

We would have compelling reasons to affirm these truths—and to join Pope Francis in rejecting gender ideologies that reject or compromise them—even if we were not Catholics. Sound philosophy is sound philosophy. But as Catholics we have additional reasons to attend to these truths and to join in their proclamation—even when bearing witness to them is difficult and risky, as it has become in our day when basic anthropological and moral truths proclaimed by the Church are unpopular among the powerful and influential. And if I may say so, these truths must be at the foundation of a priest’s or a deacon’s pastoral care of Catholics who experience, and so often struggle deeply with, gender dysphorias. It is critical for those providing pastoral care to speak truth—the whole truth—in love, even when truth, or aspects of the truth, are unwelcome and perhaps off-putting. To withhold the truth, even out of a sense of compassion, is not truly to love the person to whom one is ministering. The truth, we as Catholics believe, is liberating and life-giving, even when it is hard to hear and hard to live up to. The pastoral and the truthful are in the same “hylomorphic” unity as body and spirit. They are inseparable—and any attempt to separate them will, in the end, prove to be something far worse than a mere failure. And the highest price will be paid by those who most badly needed to hear the whole truth proclaimed. -- Yours faithfully, Robby

June 11, 2019 | Permalink

Freedom of Religious Institutions in Society

The Freedom of Religious Institutions in Society (FORIS) Project is a pathbreaking, multi-country initiative funded by the John Templeton Foundation to examine the meaning and impact of institutional religious freedom and promote its findings among policymakers, scholars, and journalists around the world.

The first public event was held on May 29th in Washington, D.C.

You can watch the archived footage at this link: https://www.religiousfreedominstitute.org/rfievents/freedom-of-religious-institutions-in-society

June 11, 2019 | Permalink

Thursday, June 6, 2019

Religious Freedom in Retreat: Canada’s Courts versus Physicians’ Liberties

This Law & Liberty article by Michael Wagner is an interesting read about the increasing adversity that Christian healthcare providers face in Canada. 

June 6, 2019 | Permalink

Tuesday, June 4, 2019

Hittinger's essay on the Four Basic Principles of Catholic Social Doctrine

Rick and Kevin have both recently blogged about Russell Hittinger's essay, which you can read here: http://www.pass.va/content/dam/scienzesociali/pdf/acta14/acta14-hittinger.pdf

Hittinger invites us to think about the Four Principles by writing the following:

Why did the term ‘social’ come to the fore in Catholic teaching and thought? In order to answer this question, it is necessary to consider the four basic principles which orient the proceedings of this Academy: dignity of the person, solidarity, subsidiarity, and common good. Notice that, while all four principles presuppose the human person, the last three are specifically and irreducibly social. The dignity of the human person cannot be interpreted on the premise of methodological individualism – namely, that social unities and relations among members can be reduced to nonsocial properties of members or composites thereof. Indeed, whether there are real social entities instantiating real social relations amongst their members is the first and most abiding question.

June 4, 2019 | Permalink

Monday, June 3, 2019

The times in which we live

I've recently been re-reading parts of Martha Nussbaum's The Therapy of Desire: Theory and Practice in Hellenistic Ethics.  Its treatment of many of the topics and themes within the book's scope is outstanding, on a par with the quality I associate with her magisterial book, The Fragility of Goodness: Luck and Ethics in Greek Tragedy and Philosophy.  Turning the page in the former book yesterday, I was jolted when I reached footnote thirty-one on page 372, specifically this sentence: 

The substantial literature on the possible differences between Zeno and Chrysippus is summarized in Inwood (1985).  Substantial contributions are Pohlenz (1938, 1970), Voelke (1965), Rist (1969), Llloyd (1978). 

The jolt came from recalling that I had read the other day that Rist, John, favorably cited by Nussbaum (in that footnote and elsewhere), had recently been banned from entering pontifical universities worldwide. There, then, was John Rist, now the ecclesiastical "criminal," still lurking in Nussbaum's footnote as an example of first-rate, "substantial," contemporary work on Greek philosophy.   

According to Rist himself, as I proceeded to discover on the Internet, he went to fetch his car at the Augustinianum, across the street from the Bernini colonnade where he had been conducting research and supervising a graduate student, and was denied access.  Rist had received no advance notice, let alone a hearing.  As far as Rist and others have been able to make out, the offense for which he was banned was his being a signatory of the "Open Letter" accusing Pope Francis of the delict of heresy.  

I don't know Professor Rist personally, although years ago I had the pleasure of interacting with him at a couple of academic conferences, where he was much appreciated by everyone for his vast learning and generosity of mind.  Some years earlier, Rist had been teaching at the University of Toronto when I was a student there and in the Pontifical Institute of Mediaeval Studies, and I heard him lecture many times great erudition, insight, and care.  During the years I was in Toronto, in addition, Rist and I also attended the same parish served by the Toronto Oratory, where I saw him at prayer Sunday after Sunday.  Now Rist has been uncivilly banned from pontifical faculties.  Will Rist's status as "emeritus" at The Catholic University of America, where he taught after retiring from the University of Toronto, soon be removed?  

The Open Letter has many shortcomings, in my estimation, but the fact of Rist's having been banned from pontifical faculties, and without so much as notice or a hearing -- let alone something that would satisfy Mathews v. Eldridge! -- constitutes part of the puzzle of how things are going for some faithful Catholics in the Catholic Church today.   Perhaps the Open Letter was imprudent, perhaps it was even very imprudent, though I doubt that.  But what are the good and sufficient reasons, both of fact and of ecclesiastical law, that John Rist, a scholar of impeccable academic achievement and a faithful Catholic, is no longer permitted to go about his scholarly work the way he was until the week before last?  No reasons have been publicly adduced.  The Open Letter obviously struck a nerve somewhere, yet we can hope that the tolerance and desire for "encounter" promoted by the Holy Father will be extended to Professor Rist.

The process-less exclusion of Professor Rist from Catholic institutions of higher learning sadly provides arms to those who wish to find fault with the Church, something Professor Nussbaum herself has occasionally done.  Sadly, Rist's lawless exclusion finds some support in the remarkable ultramontanism, recently remarked upon by Philip Lawler, of Pope Francis's Veritatis Gaudium No. 26.2 (2018).  

June 3, 2019 in Brennan, Patrick | Permalink

Hittinger on "Reading the Tradition" the "Roman way"

Rick blogged last month about Russell Hittinger's essay, The Coherence of the Four Basic Principles of Catholic Social Doctrine: An Interpretation. In an introductory section "On Reading the Tradition," Hittinger distinguishes three contributing strands of theology, philosophy, and social science. He identifies the varying emphasis given to these different strands over time as a source of complexity. The whole concluding paragraph of this section is worth quoting in full:

Finally, the project is complex because all three factors – the theological, philosophical, and social scientific – are given different emphasis over the course of decades since 1878. The tradition is not only multi-disciplinary, but internally multi-faceted as one pope introduces new themes even while circling back upon the work of his predecessors. It is the Roman way to introduce new considerations while at the same time tightening their connection to the preceding tradition. Old things are made to look new, and new things look old. John Paul II referred to the scribe trained for the kingdom, who is compared to ‘a householder who brings out of his treasure what is new and what is old’ (Mt. 13:52). This is not mere pious sentimentality. The Pope meant it as a hermeneutical principle suitable for reading the tradition of social doctrine. Someone who reads the magisterial documents as bits of ‘news’ or as ad hoc pieces of Church policy on a particular social issues will understanding something, but not very much.

June 3, 2019 | Permalink

Friday, May 31, 2019

Five Insights Christianity Brings to Politics

This article by Michael Matheson Miller at Law & Liberty is a great introduction to the Christian tradition and how it intersects with politics. As the author notes, Christianity is not a political program yet it gives us a certain way of thinking about the state and the role of politics.

The summation of the Common Good is especially worth reading, as "Common Good" is becoming more difficult to define with more people using the phrase, often from a secular point of view:

The Common Good

The third major element of a Christian vision of government is the commitment to the common good. The common good consists of the political and the social conditions that enable individuals, families, and communities to “reach their fulfillment.”

It is important to note that the common good does not equal the good of the state. Individuals are not simply cogs in the machine of the state. Further, the community cannot be reduced to the political community. This is a common error. Nor does common good equal the greatest good for the greatest number. It is not simply more efficiency or more pleasure. It is rooted in a rich concept of the good life, always keeping in mind the eternal destiny of the person.

The state plays an important role in promoting the common good but cannot do everything. Its main role is in helping to create the conditions where people can flourish and to assist when necessary. As Thomas Aquinas explains, “It is contrary to the proper character of the state to impede people from acting according to their responsibilities—except in emergencies.”

May 31, 2019 | Permalink

Thursday, May 30, 2019

The Medieval Church and Modern Liberty

This great article by Paul Rahe at Hillsdale College explores some of the Christian roots of modern liberty.  

May 30, 2019 | Permalink

Tuesday, May 28, 2019

The History of Religious Freedom

Robert Louis Wilken recently posted this web exclusive on First Things about the history of religious freedom. Wilken notes the landmark decisions in the United States that have shaped the issue and then points out how Christianity has wrongly been branded intolerant and an enemy of religious freedom:

More recently, in a March op-ed in the Washington Post, historian and political commentator Robert Kagan wrote: “Only with the advent of Enlightenment liberalism did people begin to believe that the individual conscience, as well as the individual’s body, should be inviolate and protected from the intrusions of state and church.” Kagan reflects the conventional view that religious freedom was the accomplishment of the Enlightenment. Like others, he assumes that by the end of the seventeenth century the fanaticism of religious believers gave way to the cool reason and skepticism of philosophers, and this in turn led to ideas about toleration and religious freedom.


What is missing in these accounts is the contribution of Christianity. Many believe that Christianity is inescapably intolerant, and that only with the decline of religious faith in western society did liberty of conscience take root. But a more careful examination of the historical record shows that Christian thinkers provided the intellectual framework that made possible the rise of religious freedom.


Already in the ancient world, Christian writers argued (against their Roman persecutors) that religion could not be coerced. Religious belief by its very nature must be free. They also adapted and modified the understanding of conscience received from ancient philosophers, who understood conscience as a moral knowledge of one’s past actions. Christian thinkers, influenced by the use of the term “conscience” in the writings of the apostle Paul, began to see conscience not simply as knowledge of one’s past actions, but as a pedagogue of future action. To take one example: In the sixteenth century, when Protestant magistrates forced monks and sisters to abandon monastic life to embrace the teachings of the reformers, the abbess of a Franciscan community of sisters in Nuremberg told the city council: We hope that you will not apply pressure “in matters that concern conscience” and “force us to act against our wills to confess what the authorities want us to say.”


Of equal importance in the development of liberty of conscience were the writings of Christians who developed the view that civil authority and religious belief must be kept separate. They appealed to the medieval distinction of two powers—one religious, the other political (pope and emperor)—what is sometimes called the two swords. Ultimately, the distinction of realms goes back to the words of Jesus: “Render unto Caesar the things that are of Caesar and to God the things that are of God.”

May 28, 2019 | Permalink

Justice Thomas's important reminder re: abortion and eugenics

In his opinion concurring in the Supreme Court's summary reversal of the Seventh Circuit's (clearly incorrect) ruling invalidating an Indiana law requiring appropriate disposal of fetal remains, Justice Clarence Thomas provided an important and timely, even if (for some) uncomfortable and unwelcome reminder about the inescapable connections between Planned Parenthood and the rise of the abortion-rights movement, on the one hand, and eugenics and discrimination, on the other.  Scroll down to p. 13 of the Court's order list to read his powerful opinion.  He ends with this: 

The Court’s decision to allow further percolation should not be interpreted as agreement with the decisions below. Enshrining a constitutional right to an abortion based solely on the race, sex, or disability of an unborn child, as Planned Parenthood advocates, would constitutionalize the views of the 20th-century eugenics movement. In other contexts, the Court has been zealous in vindicating the rights of people even potentially subjected to race, sex, and disability discrimination. . .

Although the Court declines to wade into these issues today, we cannot avoid them forever. Having created the constitutional right to an abortion, this Court is duty bound to address its scope. In that regard, it is easy to understand why the District Court and the Seventh Circuit looked to Casey to resolve a question it did not address. Where else could they turn? The Constitution itself is silent on abortion.

May 28, 2019 in Garnett, Rick | Permalink