My first encounter with Catholic Legal Theory (CLT) last night wasn't particularly inspiring. Citing no evidence whatsoever, Robert Araujo
asserts that "Most if not all of the valiant laboring for peace in this troubled region does not seem to acknowledge the fact that both contingents involved in the conflict fear each other." Furthermore, as he understands it,
Fear—particularly the fear of difference—is a compelling driving force that can lead one people, and their respective government, to consider another people as an object—“the other.”... [It is] the sense of difference that fuels the fears underlying the conflict. Rather, the diplomats (guided by the Catholic perspective on the international order) should emphasize what can easily bridge the differences—for example, a common hope in the future that the children of today can look forward to a tomorrow in which the present strife is replaced with cooperation where such things as agricultural and industrial trade, cultural exchange, and regional security become routine. This is possible if each side’s fears of the other are put aside. This course is also demonstrative of the common good, which reveals that the destinies of two peoples are inextricably related. Strife for one will inevitably mean strife for the other; but, peace and prosperity for one will ensure the same for the other.
In response, David Schraub
pointed out that
the idea that a foreign conflict might represent a prisoners dilemma--and that thus the route out lies in a restoration of trust--is not exactly a shocking revelation. As for the idea that focusing on the positives of mutual cooperation rather than mutual hate, didn't Golda Meir already comment several decades ago that "Peace will come when the Arabs will love their children more than they hate us"?
Furthermore, to assume that the Israelis/Jews act the way they do because they fear "difference" is to fundamentally miss the point.
Israel reacts the way it does because, from their perspective, losing does not mean that it loses a sliver of territory or more land than they'd like. Losing means getting rounded up and shot, gassed, or otherwise slaughtered. This is the trauma you're dealing with.
This should be clear to anyone that's spoken to Israelis or Jews that hew to the Israeli party line. It's something I've
written about before, albeit not on this blog. One could make an argument that the fear of demographic death ("the Arabs are outreproducing us! In 50 years, we'll be a minority in our own state!") boils down to a fear of difference, but I don't think that it's a particularly useful framework for the conflict as a whole. I wrote this in response to David's post:
I think you're basically right that he didn't say anything novel, and I think you correctly identified the source of most Israelis'/Jews' fear. I just think that it's amusing that 1) there's such a thing as "Catholic Legal Theory" and 2) someone thinks it can explain a conflict between Jews and Muslims.
I also doubt that a legal theory based on lowercase-c catholic (i.e. universal) values can really understand difference all that well, since assuming that your values are universally aspired to is a good way to disguise, ignore, and generally misunderstand the other. Uppercase-c Catholicism in particular doesn't deal with diffrence very well (the technical term for differences with the Pope's beliefs is "heresy"). And now that I think about it, the last time the Catholics were heavily involved in that region, it didn't go so well, either. The Crusades arent' exactly anyone's favorite historical period.
Was I a little harsh? Perhaps. But I can't imagine many things that are more arrogant than asserting that International Relations theory, game theory, the entire diplomatic establishment, the political leadership of every country involved, and the citizens on both sides fundamentally misunderstand the conflict
because they're analyzing it from the wrong religious perspective. Particularly when the alternative theory which turns out to be totally unoriginal and largely wrong. It would be hard to find a better example of my point that the best
way to misunderstand difference is to start from the axiom that one's own beliefs should be universal. I submit that no belief system capable of supporting crusades, inquisitions, and torture as mechanisms for spreading itself can understand difference very well (if those methods are no longer seen as God's will, is it because the infallible Church was wrong before or because God changes his mind?). There's a reason that the best understanding of difference comes from postmodernists and their allies: even if there
are universal values, people can't agree on them, so clinging to one's own capital-T Truth is a good way to misunderstand the other. David Schraub didn't address my comments directly, but he did say that "Catholic Legal Theory is actually very vigorous and very interesting." I took his word for it, and so I did a bit of reading and wrote up this response. He didn't point to any specific examples, so it's likely that CLT has said some incredibly brilliant things and I just didn't find them. Still, I think I have a good enough sense of it to write a post on the parts I've seen so far.
CLT definitely seems preferable to the legal theories of the radical evangelical right, but I'm not seeing any brilliant insights, either. Based on my (very limited) research, the key element of CLT
seems to be "the dignity of the human person and respect for the common good." I'm all for that, as I've
written before. I think it should be fairly uncontroversial that "community [i]s indispensable for human flourishing" and that "authentic freedom" is a good thing. " And I'm an atheist. Thus, I'm not sure what CLT has to add. Like
Kobayashi Issa David Giacalone,
I wonder[] what the Church could teach American lawyers, when — due to its reading of Truth and morality — it has structured its own government as an absolute monarchy, with no right to free expression, no admission of women to its leadership positions, and (as with priest pedophilia) the use of coverups to preserve its image and authority, rather than transparency. We now can add to that list the creation of an underclass of Church members, prevented from serving as ministers (and therefore as leaders) due to their God-given “tendencies,” rather than their actions.
Basically, it seems like the good elements of CLT can be found elsewhere, and forcing a distinctively Catholic element onto the ideas I've seen so far has seemed confusing and unproductive at best. That's not to say that they won't have anything interesting or useful to say as a result of their Catholicism. With a few exceptions like the Talmudic tradition and perhaps law itself, there aren't many systems of thought that have struggled more intensely or for a longer period of time with the nature of the law than the Church. In fact, I'd be surprised if Catholicism
didn't have something useful to say on the subject, just as I'd be surprised if Buddhism's introspective tradition didn't
have anything useful to say about psychology. Still, I'm confident that there are issues on which Catholic teachings are worthless and even dangerous
, and people are going to have an extremely difficult time convincing me to adopt a particular position simply because a Catholic theologian or scholar supports it
. To quote
Issa's Giacalone's response to the Vatican's prejudicial circular reasoning on gay priests,
With all due respect, I do not believe that this mixture of metaphor, mysticism and mystery can in any way help create better lawyers, or has anything to offer legal thinkers — except, perhaps as the sort of extra-legal personal beliefs that ought not to be brought into either legislation or adjudication. In response, Patrick Brennan would surely point out to me -- as he said at MOJ — that the question of who can become a priest is not a matter of law or legal theory, but is a matter of “theology,” and “sources of officia and munera.” That simply doesn’t wash. The Church surely has much to “teach” the American legal system and its lawyers by example, when it is deciding on the rights of its members, the selection of leaders, or the due process to be afforded in deciding the status of individuals. These subjects are surely “distinctively Catholic” applications of Truth and morality...
Unless they can convince other legal thinkers that the Church’s positions on topics such as gay priests do not taint whatever guidance it can give on other topics, CLT advocates are going to have a hard time being taken seriously for having a unique, coherent and useful legal philosophy.
If CLT ends up being (or being seen) as a group of legal professionals espousing nice social theories about how to help the poor and help individuals flourish, it would almost surely be more effective dropping the “Catholic” and working within broader social and academic groups with similar interests — infiltrating, cooperating, rather than preaching. It is a conceit to believe that others do not have an equal commitment to those causes.
And it's a conceit to believe that others--particularly experts and others that believe that they have access to a capital-T Truth that flatly contradicts Catholic teachings--don't understand their own affiars. Like I said earlier, it's quite likely that over the last 1500 years some Catholics have produced tremendously useful ideas that should be given more thought. I'm not going to reject an idea just because it's rooted in Catholic doctrine. But I don't think that people should accept them for that reason, either. And if the posts I looked through are any indication, there's a danger of that with CLT.
I'd be happy if someone can prove me wrong, though. I'm certainly not going to pretend to be an expert on something I hadn't heard of until several hours ago. Am I missing something?
Tags: christian, dave, disenchantedidealist, ideology, israel, legal, terror, violence, war
