There is a disturbing tendency among philosophers to think that their technical training—we're nothing more than logicians—qualifies them to speak with authority on every issue. In fact, the contribution of philosophy to public affairs is quite small, which is why few laypeople can name even one living philosopher. For those who are interested in such things, I recommend Richard A. Posner's book The Problematics of Moral and Legal Theory (Cambridge and London: Harvard University Press, Belknap Press, 1999).
Comments? Also, has anyone read this book from Judge Posner?
On November 18, 1966, the National Conference of Catholic Bishops issued On Penance and Abstinence, which outlined the national norms for penance and abstinence.
In regards to whether we can consume meat on Fridays, I quote the pertinent parts:
PART III : SACRED PLACES AND TIMES
Can. 1249 All Christ's faithful are obliged by divine law, each in his or her own way, to do penance. However, so that all may be joined together in a certain common practice of penance, days of penance are prescribed. On these days the faithful are in a special manner to devote themselves to prayer, to engage in works of piety and charity, and to deny themselves, by fulfilling their obligations more faithfully and especially by observing the fast and abstinence which the following canons prescribe.
Can. 1250 The days and times of penance for the universal Church are each Friday of the whole year and the season of Lent.
Can. 1251 Abstinence from meat, or from some other food as determined by the Episcopal Conference, is to be observed on all Fridays, unless a solemnity should fall on a Friday. Abstinence and fasting are to be observed on Ash Wednesday and Good Friday.
Can. 1252 The law of abstinence binds those who have completed their fourteenth year. The law of fasting binds those who have attained their majority, until the beginning of their sixtieth year. Pastors of souls and parents are to ensure that even those who by reason of their age are not bound by the law of fasting and abstinence, are taught the true meaning of penance.
Can. 1253 The Episcopal Conference can determine more particular ways in which fasting and abstinence are to be observed. In place of abstinence or fasting it can substitute, in whole or in part, other forms of penance, especially works of charity and exercises of piety.
I believe Sean captures the situation incorrectly when he calls the school, and associated religious organizations, “too dumb to read their own scriptures.” He re-tracts his caricature a bit when he offers this explanation for the school’s behavior: “maybe they want to persecute these people because they know it will get the persecuted into Heaven.”
How he can at once caricature the school’s administrators for being too dumb to read their own Christian scriptures but then lavish the compliment that the administrators are doing what they’re doing to earn the lesbian couple and their children places in heaven, is beyond reasonable. For one, to know how one gets to heaven—at least for these Christians—the Bible serves as their roadmap. A book, however, they’re too dumb to read. So the act of persecuting this family, which Sean caricatures as an act of virtue for these administrators, must then be merely coincidentally consistent with Christian scripture since the Christians are in this case “too dumb to read [it].”
Of course Sean isn’t being completely serious with the situation. The tension that results from his two statements then cannot be taken too seriously. I am definitely extending what Sean said if I assume that he takes the actions of the school’s administrators as inconsistent with Jesus’ teaching of tolerance, as Sean sees it, in the Gospels. An assumption, however, consistent with Sean’s entire post. More simply, I believe Sean was trying to point out a situation of hypocritical Christians. So the argument typically builds: 1) Christ preached tolerance; 2) to follow the teachings of someone means to assume them; 3) therefore, to follow Christ means to be tolerant. If someone can then point to an instance where a follower of Christ—err, a Christian—isn’t practicing tolerance, then he can be charged with hypocrisy, “the practice of professing beliefs, feelings, or virtues that one does not hold or possess.”
Sean quotes Matthew’s account: “Blessed are they who are persecuted for the sake of righteousness, for theirs is the kingdom of heaven” (Matt 5:10). From that Sean takes that Jesus taught tolerance over intolerance: “I'm not sure, but this Jesus guy seemed to think that intolerance was a bad thing.”
What Sean leaves out of his analysis is the full context of the portion he quoted. Matthew’s account of Jesus’ excortication has Jesus qualify those instances where those who are persecuted will inherit the kingdom of heaven—because it isn’t merely being persecuted that earns one a place in the kingdom. Jesus says, to repeat: “Blessed are they who are persecuted for the sake of righteousness, for theirs is the kingdom of heaven” (emphasis added). Jesus more accurately qualifies those who are persecuted for their righteousness. Mere persecution isn’t enough. It’s persecution because the person is righteous.
At this point we can debate whether Jesus considered lesbian parenting a righteous act, but that’d be missing the point. Suffice it to say, however, that the scholarly understanding of righteousness in this context—that is Matthew’s gospel—means conduct in conformity to God’s will. While some may not agree that two lesbian parents is not in conformity with God’s will, we can safely assume that the Christians who run this school hold homosexuality as inconsistent with Scripture, including the portion Sean quotes. From this, is intolerance not the valid conclusion?
More simply, what these school administrators have done in this case shouldn’t strike anyone as betraying the creed they profess. They’re not unaware of Jesus’ exhortation of the Beatitudes, they’re merely capturing what Jesus said in the context of the rest of Scripture. They’re not neglecting a portion, which Sean has tried pointed out.
Dan Kahan, of Georgetown’s Exploring International Law blog, posted a link to the AP coverage (with excerpts) of Justice Ginsburg’s recent remarks at a recent New York City Bar Association reception. The lecture, which was given by Mary Robinson, former president of Ireland, was in Justice Ginsburg’s honor. Justice Ginsburg remarked: “I will take enlightenment wherever I can get it…I don't want to stop at a national boundary.”
How can we interpret the justice’s remarks in light of the current debate on the matter of citing to foreign law. Truly, I don’t know how to interpret the justice’s mention of enlightenment. For one, I find it an interesting choice of words. If we assume the common usage of “enlightenment,” then the justice most probably meant learning, “education that results in understanding and the spread of knowledge.”
In her recent article, which I posted about here, Mary Ann Glendon suggested that this process of “learning” is selective, and I will add results-oriented: “The problem is not reference to foreign law: It is how foreign law is used by judges who usurp powers reserved under the Constitution to the people and their elected representatives, and whose desire to "learn" is limited to finding arguments in support of conclusions that have little constitutional warrant. The learning process of the foreign law enthusiasts, moreover, is selective.”
Glendon then quotes Scalia’s take that those who cite to foreign law are merely “looking over the heads of the crowd and picking out their friends.” That is to say, in light of Justice Ginsburg’s comment, that those who cite to foreign law are not so much open to the diversity of law on any topic but choose, instead, to focus on those foreign laws that lend support to a pre-determined result. This is explained by Glendon later in her piece that those who cite to foreign law ignore the diversity and difference in foreign laws: “They have shown no disposition to explore why most democracies take a different view from theirs on exclusion of illegally obtained evidence, regulation of abortion or separation of church and state.”
Given the diversity in and of foreign law, enlightenment to/of others’ ways is perhaps a pretext to add support not otherwise lent by our domestic law. That conclusion is, to be sure, quite cynical, but not improbable. As Glendon, whose expertise is in comparative law, suggests, there is a definite difference in the way other legal systems conceive the rules of evidence, regulate abortion, or how religion and government should interplay. Those justices who’ve taken to citing foreign law have not taken any care to account for the foreign law in opposition to their opinion/holding. A natural conclusion is that citing to foreign law, as it is practiced, is self-serving and results-oriented. This betrays the semantics of Justice Ginsberg’s comment, which referenced enlightenment, not a results-oriented endeavor.
The next topic I’m interested in exploring is how we can apply the idea of incommensurability to the relevance of foreign law to our legal system.
You can find a link to more information on the school's webpage, in the lower, middle of the page, under "Events."
Sean invited me some time ago to contribute weekly on the topic but I have only gotten the time today to begin. It's a modest beginning to a topic to which I hope to one day contribute substantively. Please visit! (And comment!)
"Twentieth-century moral philosophers have sometimes appealed to their or our intuitions; but one of the things that we ought to have learned from the history of moral philosophy is that the introduction of the word 'intuition' by a moral philosopher is always a signal that something has gone badly wrong with an argument."
Alasdair MacIntyre (1984). After Virtue. 2nd ed. Indiana: University of Notre Dame Press. 69.