Posted on by Marc O. DeGirolami · 2 Comments

Koritansky’s “Thomas Aquinas and the Philosophy of Punishment”

I am very excited to read this new book by Peter Karl Koritansky (University of Prince Edward Island), Thomas Aquinas and the Philosophy of Punishment (CUA Press 2011).  My own view is that punishment theory and punishment policy might greatly benefit from a historical turn, rediscovering (or, often enough, discovering for the first time) the richness and depth of perspectives on punishment which have, for one reason or another, been forgotten in the historical firmament or perhaps even ignored altogether.  Thomas Aquinas is neither forgotten nor ignored, but this is one of the only full-length book treatments of his thought about punishment of which I am aware, and it is certainly the only one which connects directly to the present debate about punishment theory and punishment practice today.  Cool.  The publisher’s description follows.  — MOD

Thomas Aquinas and the Philosophy of Punishment explores how Aquinas’s understandings of natural law and the common good apply to the contemporary philosophical discussion of punitive justice. It is the first book-length study to consider this question in decades, and the only book that confronts modern views of the topic.

Peter Karl Koritansky presents Thomas Aquinas’s theory of punishment as an alternative to the leading schools of thought that have dominated the philosophical landscape in recent times, namely, utilitarianism and retributivism. After carefully examining each one and tracing its roots back to Immanuel Kant and Jeremy Bentham, Koritansky concludes that neither approach to punitive justice is able to provide a philosophically compelling justification for the institution of punishment. He explains how St. Thomas approaches the same philosophical questions from a markedly different set of assumptions rooted in his theory of natural law and his understanding of the common good.

Not without its own difficulties, Aquinas’s approach offers a rationale and justification of punishment that is, Koritansky argues, much more humane, realistic, and compelling than either contemporary school is able to provide. Koritansky distinguishes his reading of the Angelic Doctor from that of other interpreters who tend to conflate Aquinas’s teaching with various aspects of recent thought. A final chapter considers the death penalty in John Paul II’s Gospel of Life and debates whether current Catholic teaching about the death penalty conflicts with Aquinas’s arguments in favor of the death penalty.

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The Constitutionality of “Operation Restore Our Community”

The City of Bay Minette, Alabama, recently attempted to institute “Operation Restore Our Community,” a new alternative sentencing program.  The program allows first-time non-violent misdemeanor offenders the option to attend church in a place of worship of their choice, in lieu of serving time in prison and/or paying a fine. Offenders who choose this option are required to meet with a pastor and the police department weekly. (It is unclear if the ROC program offers other additional sentencing options, but for purposes of this post I will assume the options are limited to church or jail.)

Though scheduled to begin earlier this month, the legal team behind the program agreed to re-evaluate it in response to a cease-and-desist letter from the ACLU. Last Monday the Bay Minette City Council voted to submit the program to the Alabama Attorney General’s office for review.  Bay Minette Police Chief Michael Rowland believes the program is legal, but many others have raised constitutional concerns.  Read more

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Shulman on History and Discerning the Content of the Religion Clauses

The Journal of Law and Religion (Vol. XXVII, Hamline University School of Law, St. Paul, MN.) will soon publish The Siren Song of History: Originalism and the Religion Clauses, by Jeffrey Shulman of the Georgetown Law Center.  The article surveys three recent historical studies of the constitutional framers and their religious convictions; based on the studies, Shulman argues that historical research fails to discern in the spirituality of the founders enough coherent, unitary content to formulate an adequate originalist  interpretation of constitutional religious freedom.

At the outset, Shulman asserts, “[W]e are all originalists now”—meaning, in his view, that originalism has become a keystone to litigating freedom of religion questions.  Through his reviews, Shulman seeks to call into question this perceived judicial susceptibility to originalist-historical interpretation of the First Amendment.  He does so by arguing that history does not disclose a thorough, consistent enough picture of the founders’ religiosity to endow the Religion Clauses with “something determinate enough to serve a heuristic purpose in legal controversy.”

To illustrate his argument,  Shulman reviews The Forgotten Founders on Religion and Public Life (Daniel L. Dreisbach et al. eds., Notre Dame 2009) (see Professor DeGirolami’s discussion here), a collection of biographical outlines of under-acknowledged “founders” and their views on the relationships between religion, law, and society.  Among those outlines, the collection sketches Thomas Paine’s deism; the “quirky individual religion” of Benjamin Rush, a Philadelphia physician; and the moderate Anglicanism of first attorney-general, Edmund Randolph.

For further discussion of  The Forgotten Founders and the other two books Shulman surveys in The Siren Song, please follow the jump. Read more

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Balancing (Ethically) Government Healthcare Spending

This month, Oxford University Press publishes Prevention vs. Treatment: What’s the Right Balance? (Halley S. Faust & Paul T. Menzel eds.).  The volume collects essays by, among others, lawyers and religious ethicists on the proper balance between preventative and curative care in government health spending.  The collection is of particular relevance in this time of increased government healthcare  regulation and the possibility of real nationalized healthcare in the United States.  It  offers both legal and spiritual-ethical guidance as to how government should structure its healthcare-spending priorities.  See OUP‘s description below:

Everyone knows the old adage, “an ounce of prevention is worth a pound of cure,” but we seem not to live by it. In the Western world’s health care it is commonly observed that prevention is underfunded while treatment attracts greater overall priority. This book explores this observation by examining the actual spending on prevention, the history of health policies and structural features that affect prevention’s apparent relative lack of emphasis, the values that may justify priority for treatment or for prevention, and the religious and cultural traditions that have shaped the moral relationship between these two types of care.Economists, scholars of public health and preventive medicine, philosophers, lawyers, and religious ethicists contribute specific sophisticated discussions.
Please follow the jump for further description from OUP. Read more
Posted on by Mark Movsesian

Religion and Occupy Wall Street

From the Atlanta Journal Constitution, an interesting piece on the presence of religion  in the Occupy Wall Street movement. As you might expect, the movement has kept its distance from organized religion — these are not people who are fond of institutions — but at least some of the protests have embraced an inclusive, interfaith sort of spirituality. At Boston’s OWS site, for example, there’s a “Spiritual Space” tent with a statue of Buddha,  a picture of Jesus, and a sign pointing toward Mecca. Is this just a bit too fuzzy, or a reflection of higher consciousness? Read and decide for yourself. — MLM

Posted on by Marc O. DeGirolami

Pontifical Council for Justice and Peace’s Note on Financial Reform

This is a powerfully expressed statement by the Pontifical Council for Justice and Peace on the current financial maladies facing the world.  All of the recommendations warrant sustained thought, and most are well beyond my capacity to assess.

One thing that I did not remember is the call of Pope John XXIII in Pacem in Terris for a “true world political authority” to emerge to serve the common good of humanity.  This vision is taken up by the Council, which talks about the need for “a supranational Authority” to take charge of these matters in light of what is seen as a movement toward greater globalization.  The Council’s recommendations are cautious in this respect, but they are striking nevertheless.  It also seemed to me, especially after Mark’s post below, that thoughts about a global authority reflect a quite Catholic way to envision the issue of human authority, to be contrasted with the more Protestant view of state sovereignty described and championed by Vattel and others.  These old fights never really die.  — MOD

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Robinson on Rationalizing Religious Exemptions

Zoe Robinson (DePaul University College of Law) has posted Rationalizing Religious Exemptions: A Legislative Process Theory of Statutory Exemptions for Religion. The abstract follows. – ARH

This Article proposes a new theory of religious liberty in the United States: it hypothesizes that a person’s religious freedom is dependent on their political power. Following the Supreme Court’s 1990 decision of Employment Division v. Smith, the legislature has sole control over the enactment of accommodations and exemptions from laws of general application for religious adherents. This Article argues that post-Smith accounts of religious liberty and pluralism fail to systematically analyze the relationship between religious liberty and legislative exemptions. To this end, the Article proposes a unique public choice model that hypothesizes that legislative accommodations and exemptions may result from a complex process in which legislators weigh the gains derived from the prospective exemption or accommodation – in terms of constituent voting support – against the costs borne. By modeling legislative accommodations as the result of benefit-maximizing behavior, the Article is proposing a significant paradigm shift that postulates a new, and unasked, question: whether the legislature is overly responsive to majoritarian interests at the expense of minority religious liberty.

Posted on by Mark Movsesian · 3 Comments

Is Sovereignty Protestant?

I spent last weekend participating in an interesting Federalist Society/Liberty Fund colloquium, “International Law, Foreign Law, and the Constitution.” Some of readings for the colloquium discussed the development of the concept of sovereignty in international law. It’s striking how closely the concept relates, historically, to the Protestant Reformation. The great theoreticians of sovereignty were mostly, though not exclusively, Protestants seeking to provide an intellectual grounding for the Westphalian system, people like Grotius and Vattel, though Vattel is more an Enlightenment than a Christian thinker, it seems to me. Even Bodin, the 16th Century French writer credited with the first comprehensive theory of sovereignty, was a crypto-Protestant, at least according to the Tudor secret police.

The core components of Westphalian sovereignty were the equality and independence of states. Each state had an equal right to govern itself and no state had the right to meddle in another’s internal affairs. The non-interference principle extended especially to religion. According to Vattel, for example, the Law of Nations, a set of rules derived from natural law, prohibited attempts to impose the “true faith” on a state from the outside. In fact, Vattel argued, even peaceful missionary work was prohibited, unless the local government allowed it. (Vattel made an exception for the Twelve Apostles; they had resisted the state’s attempts to silence them, he conceded, but they could perform miracles). Sovereignty, presented as a matter of natural law, greatly assisted the Protestant Reformers, who were seeking a principled, “neutral” justification for resisting the Catholic Church’s assertions of universal jurisdiction. It takes a natural law to beat a natural law.

Protestants and Catholics don’t fight about these things so much anymore, but one can see a similar pattern in contemporary disputes about international human rights. Even though contemporary human rights law tends to speak in a secular idiom, it’s hard to miss the strong religious, natural law aspect of some of its key concepts, such as “human dignity.” International human rights advocates assert that these concepts are universally true and must apply as a matter of law everywhere. States that resist, in turn, often assert their sovereignty, and their position is often a moral one: “You can’t impose your norms here, because this is our country, and we have the right to decide.” Sovereignty thus continues to serve its historical function as a mechanism for resisting centralized moral authority in a fight about ultimate value. – MLM

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Levine on Jewish Law and Tragic Choices in the Holocaust

Samuel J. Levine (Touro Law Center) has posted Jewish Law from Out of the Depths: Tragic Choices in the Holocaust. The abstract follows. – ARH

This article is from the author’s remarks at the Second Annual Holocaust Remembrance Lecture at Washington University. In the article, the author explores the phenomenon of fidelity to Jewish law and morality amidst the horrors of the Holocaust. History records some of the remarkable efforts of Jewish communities and individuals who, in the face of unimaginable conditions, in ghettos and concentration camps, continued to turn to the teachings of Jewish law and ethics for lessons and guidance. The questions and answers that were presented—a portion of which have survived in written form—span all areas of life: from ritual and holiday observance, to commercial law, to domestic relations, to—literally—daily questions of life and death.

Posted on by Marc O. DeGirolami

Justice Kagan

This is a pleasant piece on Justice Kagan, where the Justice discusses her Jewish background, an interesting upcoming Supreme Court case peripherally involving religion, and a hunting trip with Justice Scalia. — MOD