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Neoliberal Capitalism in Bangladesh: The Violence of "Free Markets"

At least 3,000 people are believed to have been in the building on Rana Plaza at the time the building collapsed. More than 380 bodies had been recovered by Monday morning. Hundreds are still missing. And with every day that passes, the chances of finding survivors grows dimmer.

The deadly incident in Savar has already been called the worst industrial accident in the country’s history. It serves as a reminder that nothing has changed when it comes to the inhumane conditions under which clothes are made in Bangladesh for European and American textile companies and clothing chains. And the same can be said about the culture of corruption that is rampant in Bangladesh, the abundance of illegally procured construction permits and the lax attitude factory owners take toward safety standards. — Hasnain Kazim, Nils Klawitter and Wieland Wagner, from their piece for Der Spiegel (April 29, 2013), available here.

The disaster refocused attention on the dangers facing workers in the booming Bangladeshi garment industry, ramping up calls for stricter regulation. Western brands whose labels were found in the wreckage faced new pressure to sign on to a safety agreement.

“Brands can no longer justify any further delay.... The lack of action demonstrated by brands amounts to criminal negligence,” Ineke Zeldenrust of the Clean Clothes Campaign said in a statement Monday.—From the Los Angeles Times (April 30, 2013)

These tragedies could not have come at a worse time for major retailers that purchase garments from these factories. For months the International Labor Rights Forum and other labor rights groups have encouraged garment retailers to sign a binding agreement that would create a system of rigorous inspections, transparency and oversight. Thus far, they have had limited success, with only the parent company of Tommy Hilfiger and Calvin Klein brands and one German retailer signing on.

The agreement, the Bangladesh Fire and Building Safety Agreement, would establish a nine-member Oversight Committee, with four members appointed by Bangladesh and international labor groups, four members appointed by business representatives chosen by companies sourcing from Bangladesh, and one member mutually chosen by the other eight. Corporations that sign on to the MOU would help fund the costs of improving fire and safety standards in the factories where they source their supplies. [….]

A key provision in the Agreement is binding arbitration. Specifically, the Agreement requires the Oversight Committee to develop a plan for the implementation and administration of the Bangladesh fire and safety program that includes “[a] process for binding and legally enforceable arbitration of disputes between parties to this MOU with respect to this MOU and the program….”

In other words, labor unions and participating corporations would sign a binding agreement to improve the working conditions of Bangladeshi garment workers, and any corporation that failed to comply with its funding or other obligations under the MOU could be the subject to international arbitration enforceable under the New York Convention in that corporation’s home country. [….]—Roger Alford at Opinio Juris (April 26, 2013)

“The Terror of Capitalism,” Vijay Prashad, CounterPunch (April 26-28, 2013)

“On Wednesday, April 24, a day after Bangladeshi authorities asked the owners to evacuate their garment factory that employed almost three thousand workers, the building collapsed. The building, Rana Plaza, located in the Dhaka suburb of Savar, produced garments for the commodity chain that stretches from the cotton fields of South Asia through Bangladesh’s machines and workers to the retail houses in the Atlantic world. Famous name brands were stitched here, as are clothes that hang on the satanic shelves of Wal-Mart. Rescue workers were able to save two thousand people as of this writing, with confirmation that over three hundred are dead. The numbers for the latter are fated to rise. It is well worth mentioning that the death toll in the Triangle Shirtwaist Factory fire in New York City of 1911 was one hundred and forty six. The death toll here is already twice that. This ‘accident’ comes five months (November 24, 2012) after the Tazreen garment factory fire that killed at least one hundred and twelve workers.

The list of ‘accidents’ is long and painful. In April 2005, a garment factory in Savar collapsed, killing seventy-five workers. In February 2006, another factory collapsed in Dhaka, killing eighteen. In June 2010, a building collapsed in Dhaka, killing twenty-five. These are the ‘factories’ of twenty-first century globalization – poorly built shelters for a production process geared toward long working days, third rate machines, and workers whose own lives are submitted to the imperatives of just-in-time production. Writing about the factory regime in England during the nineteenth century, Karl Marx noted, ‘But in its blind unrestrainable passion, its wear-wolf hunger for surplus labour, capital oversteps not only the moral, but even the merely physical maximum bounds of the working-day. It usurps the time for growth, development and healthy maintenance of the body. It steals the time required for the consumption of fresh air and sunlight…. All that concerns it is simply and solely the maximum of labour-power that can be rendered fluent in a working-day. It attains this end by shortening the extent of the labourer’s life, as a greedy farmer snatches increased produce from the soil by reducing it of its fertility’ (Capital, Chapter 10).

These Bangladesh factories are a part of the landscape of globalization that is mimicked in the factories along the US-Mexico border, in Haiti, in Sri Lanka, and in other places that opened their doors to the garment industry’s savvy use of the new manufacturing and trade order of the 1990s. Subdued countries that had neither the patriotic will to fight for their citizens nor any concern for the long-term debilitation of their social order rushed to welcome garment production. The big garment producers no longer wanted to invest in factories – they turned to sub-contractors, offering them very narrow margins for profit and thereby forcing them to run their factories like prison-houses of labour. The sub-contracting regime allowed these firms to deny any culpability for what was done by the actual owners of these small factories, allowing them to enjoy the benefits of the cheap products without having their consciences stained with the sweat and blood of the workers. It also allowed the consumers in the Atlantic world to buy vast amount of commodities, often with debt-financed consumption, without concern for the methods of production. An occasionally outburst of liberal sentiment turned against this or that company, but there was no overall appreciation of the way the Wal-Mart type of commodity chain made normal the sorts of business practices that occasioned this or that campaign. [….]

In the Atlantic world, meanwhile, self-absorption over the wars on terror and on the downturn in the economy prevent any genuine introspection over the mode of life that relies upon debt-fueled consumerism at the expense of workers in Dhaka. Those who died in the Rana building are victims not only of the malfeasance of the sub-contractors, but also of twenty-first century globalisation.”

Vijay Prashad’s latest book is The Poorer Nations: A Possible History of the Global South (London: Verso, 2012).

Addendum: See too this timely Forum discussion at Boston Review: Can Global Brands Create Just Supply Chains? The lead article addressing the question of corporate responsibility with regard to industrial workers involved in the geography of global manufacturing is by Richard M. Locke.

MARRIAGE EQUALITY: How I Changed My Mind

From 2003 to early 2009, I wrote a series of historically-grounded papers that reached the common conclusion that marriage equality represented a radical departure from the western tradition of marriage and so, for that reason, should be rejected as a matter of public policy.  I have now changed my mind regarding this conclusion.  While there is no question that marriage equality represents a dramatic departure from what has gone before, I can now find support within our western tradition for expanding the definition of marriage to embrace loving, committed same-sex unions.

Let me begin with my professional background:  I am a lawyer and an historian.  These two sides of my brain co-exist in what I like to think is, for the most part anyways, a creative tension.  The lawyer side of my brain considers public policy issues in the urgency of the present.  The historian's training, however, summons me always to look at the deep picture, to appreciate what has come before, and it was this innate conservativism that long governed my instincts on marriage equality.  In my historical writings on the subject, I made essentially three arguments:  (1)  In the few instances in which same-sex marriage was debated on the historical record, it was rejected; (2)  a principal reason for this rejection, furthermore, was because marriage was about procreation, and only procreative relationships should therefore be recognized as marriage; and (3)  public policy should remain within these tightly-drawn boundaries, because any departure would be likely to result in arbitrary line-drawing.

The historical record on same-sex marriage is a surprisingly deep one.  So far as I can tell, it was discussed for the first time in the first and second centuries of the common era when the Emperor Nero engaged in a same-sex marriage with a galley slave during a lavish festival stage-managed by his praetorian prefect, Tigellinus.  The ancient authors were unremittingly harsh on Nero for this action.  Tacitus turned his ferocious irony on Nero, blaming him for the Great Fire at Rome, while Juvenal simply mocked him and those who later tried to emulate him.

Twelve centuries later, the canon lawyer Hostiensis raised the subject of same-sex marriage once again.  Hostiensis is one of those figures, well known to specialists but who has simply vanished from the popular historical understanding.  A scholar with a virtuoso's talent at raising and answering challenging questions, Hostiensis asked whether it was ever possible for a man to marry a man.  He answered in the negative and did so in order to read into his legal definition of marriage the developing theology of unnatural acts found in the scholastic writers.

His analysis would be repeated and expanded by other writers, also well-known to specialists but forgotten by nearly everyone else.  Antoninus of Florence mooted this question in the fifteenth century and Johannes Brunellus in the sixteenth.  Echoes of this mode of thought can still be found in the magisterial documents of the Catholic Church.

And if this line of thought represented one element of my own perspective, the procreative dimension of marriage represented the other.  Secular and religious sources, it seemed, converged on this point of agreement.  The Emperor Augustus decreed that marriage had to have a procreative dimension and where procreative intent was excluded from marriage, the Roman state itself might impose penalties.

The theologian St. Augustine, four centuries later, had much more to say on this point.  Marriage, he insisted, had to be procreative.  Where two parties took steps affirmatively to frustrate the natural fruitfulness of marriage their union could not be called marriage.  It was invalid and amounted to a sham.

Early American lawyers and judges were inheritors of this tradition.  Indeed, nineteenth-century marriage law had a profound Augustinian structure to it.  St. Augustine, after all, had argued that not only did marriage exist essentially for procreative purposes, but also that it was necessarily exclusive and permanent.  That is, those who strayed from their marital obligations should be punished for adultery or for fornication, while simultaneously divorce should be granted, if at all, only for a few narrowly defined causes.

These three essential marital properties had been bedrock teaching from the time of St. Augustine, through the medieval canonists, up to the eccesiastical courts of early modern England.  Early American jurists borrowed many of their matrimonial categories directly from the English ecclesiastics and almost without conscious reflection made this framework the superstructure around which they constructed their own marital theories.

American marriage law was dominated by this vision of marriage until the 1950s and 1960s, when the law began to shift fundamentally.  Adultery and fornication, while still seen as moral wrongs, ceased to be prosecuted as crimes.  No-fault divorce meanwhile eroded the law's commitment to marital permanency by greatly expanding opportunities to depart from marital commitment.  Finally, the Supreme Court's right of privacy cases, beginning with Griswold v. Connecticut, severed the connection between marriage and procreation.

This is a story I repeated in several iterations in my writing between 2003 and 2009.  The record seemed compelling.  It seemed self-evident that the conservative side of this debate had the mandate of history if not of heaven.

But I now recognize that I had merely told the story of how we got where we are and contented myself with the conclusion that that story, standing alone, provided sufficient guidance for future decision-making.  But I appreciate now something that I did not appreciate seven and eight years ago, when I commenced my writing on this topic.  I needed a more expansive historical vision in order to speak normatively.  The story I told was a static account.  I needed to identify the dynamic element within the history of marriage.

And that dynamic element is love -- enduring commitment to the personhood and welfare of another human being.  Love has been a central feature of the marital ideal for nearly as long as people have written about marriage.  Babylonian poetry recites the story of Dumuzi and Inanna, two adolescents, highly anthromorphized deities, who flirtatiously courted and wed.  Teasingly, joyously, with all the warmth and playfulness of youth, they ease themselves into a loving marriage.

In the Hebrew Scripture, we find the Song of Songs.  I have always doubted the imputation of this book to King Solomon.  It is an erotic celebration of love, told from the woman's perspective.  Christians have always felt the need to spiritualize this book, to make its explicit sexuality an allegory, but this I think is a mistake.  It is a book about love, passionate marital love, and it is found in the Bible.  And then there is St. Paul who in his letter to the Ephesians advises Christian spouses to love each other sacrificially, as Christ so loved the Church.

St. Augustine belongs to this tradition also.  When he wrote his treatise On the Good Of Marriage, he commenced with the words:  "Every individual belongs to the human race, and by virtue of his humanity, is made a social being.  In addition, the person possesses a strong aptitude for friendship."  Yes, procreation was a defining element of marriage for St. Augustine, but so also was companionship.  In the end, it is because we are social beings who know how to love that marriage becomes an appropriate means of procreation.  Love comes first, for St. Augustine, then procreation.

Great modern secular writers, too, have explored the importance of love and marriage.  One of the earliest, and among the most profound, was Mary Wollstonecraft, in her many works of fiction.  She could mourn the misery that comes when marriage is severed from the longings of the heart.  But she celebrated warm-hearted love, too, in whatever strange corner of human experience it might be found.  The women writers of the nineteenth century knew this too.  Elizabeth Cady Stanton argued for consensual divorce not to provide an easy escape valve from marriage but as a way of ensuring that love and marriage might always and everywhere remain perfectly matched.

And it is safe to say that since 1960s, American society has witnessed a sea change in the area of marital theory.  Where once marital theory rested securely on Augustinian premises, the rise of artificial birth control and the right of privacy cases have shifted the foundations.  Marriage today, as a matter of public understanding, can only be grounded on love and commitment, not procreation.  As a Catholic, I still understand marriage, in my faith tradition, to unite the procreative and affective ideals.  As an American citizen, however, I also know that I belong to a diverse and creative world where a new set of public norms is even now coming into being.

And these new norms are love-based.  I feared for a long time the confusion that might result from marriage grounded solely on affection.  How do we determine what to honor with the term "marriage" and what human relationships should be characterized merely as "friendship?"  The former, esteemed by the State, carries with it legal rights and duties.  The latter, privately respected, confers no public recognition.  But how do we demarcate one from the other?

I can see now that that boundary line must be in the strength of commitment shared by two loving hearts.  I have personally witnessed successful same-sex relationships.  The response of the gay community to the AIDs crisis, particularly in the 1980s, stands as further vivid testimony to the strength and power of sacrificial, self-giving love.  For AIDs brought forth truly heroic demonstrations of love and new conceptions of family.  Susan Sontag captures these related phenomena brilliantly in her short story, The Way We Live Now.  We find there the many faces of love, as a concentric circle of friends gathers, hovers, retreats, and congregates once again, all of them trying to comfort their dying friend.

Marriage equality is a new departure in history, but that does not mean we lack all guidance from the past.  History, in the form of the story of love itself and the vast treasure-house of human experience that relates to it, can serve as our steady guide.

Who Cares about the Poor

April’s Harper’s Index reports that only 42% of American women believe they have a personal responsibility to help the poor. The report is even more disappointing for American men. Only 27% believe they have a personal responsibility to help the poor. The source for these statistics is Environics Research.

I am not sure what to make of this. In any given year approximately three quarters of American families give money to charities though it is not clear what percentage of these families give money to the poor. We do know that 75 million American give no money to charities of any kind.

In any event, most politicians obviously think the public does not care much about the poor. The poor are denigrated by Republicans and largely ignored by Democrats. I have no confidence that political leaders will cultivate concern about the poor. And such leadership certainly will not come from those who preach the prosperity gospel.

If the public does not care about the poor, you have to wonder what religious leaders have been doing or why they have been ineffective. I am an ex-Catholic, but I am praying for the success of Pope Francis.

 

Discovering Milner Ball: A Theologian of Hope

As I continue my work on a writing project focused on William Stringfellow, I have been greatly encouraged by a growing band of companions on the way. Recently Frank Alexander, law professor at Emory University and director of their Center for the Study of Law and Religion, sent me a wonderful packet of material related to Stringfellow. Among these was a remarkable essay and tribute to the work of Milner S. Ball, a theologian and for many years a professor of law at the University of Georgia. I have just finished an exhilarating essay of Ball's, entitled "Don't Die Don Quixote: A Response and Alternative to Tushnet, Bobbitt, and the Revised Texas Version of Constitutional Law." I confess that it both fascinates and dumbfounds me--Ball's thought is, for this theologian at least, an alternate universe: close to the ground of contemporary constitutional law theory, full of references to Karl Barth, Bonhoeffer, Augustine, and William Shakespeare, and advocating for a utopian form of scholarship wedded to a preferential option for the poor. Why have we in theological circles never heard of him? (well, I think I know some of the reasons why, which are the same reasons why Stringfellow is not more widely known in academia as well). 

 

In any case, perhaps some Religious Left Law readers will smile knowingly at my belated discovery of Ball. If so, I will be delighted to hear their own impressions of this most amazing theological-legal voice. For now, I simply want to share a passage from another essay of Ball's that I found cited in a tribute to Ball by Erica Hashimoto, now also teaching at U. of Georgia (Hashimoto's piece, Reflections on Hope, is a quite lovely tribute to Ball, her teacher).  From the essay "The City of Unger", Ball writes, in words I find all too relevant to today's struggles, 

My generation is tempted to think that the irony of innocence savaged and destroyed is a description of necessary reality...We are lured by the belief that serious commitment to a just world means that sooner or later our hearts will be broken.... Other less classic temptations exist. One is the upbeat mythology ...do deals and abandon the realities of mass suffering for bold, unapologetic acquisitiveness. Another temptation is to give up and do nothing.... If we refuse these temptations, it is because we catch glimpses of another, more authentic possibility. The facts yield no ground for optimism, and yet we snatch from them intimations of more and better. The facts yield no ground for optimism, and yet we snatch from them intimations of more and better. We are led to suspect the penultimacy of current events and to anticipate the ultimate. Our suspicions draw nourishment from several sources, including surprises, exceptions, and experiments that spring up, against the odds...

In Milner Ball's poetic stagings of the interrelationship of law, hope, and theology we can see just such "glimpes' and "intimations" of something more and better. Like Stringfellow, Ball was deeply suspicious of those who claimed themselves to be "religious," so to call this something more and better a specifically religious claim would miss his point. Stringfellow said that to be holy was not to be better, or more religious than others, but to be nothing more than utterly human. Like Kierkegaard's knight of faith, the holy person will not look much different from the beggar on the street. Ball, in his reading of Toni Morrison's Beloved, says this, following closely Baby Suggs' non-religious mysticism of love: 

"In the religion it thus adopts, the Word, although incorrespondent, becomes nonetheless accessible-in words and in hearts speaking beyond the need for words. The incorrespondent Word, the wholly other, is contextually, particularly human. Her religion-religion adopted by the Word-is determinative of who she is as a human and of how she is human. It cannot occupy an isolated sphere either metaphysical or private. It gives her humanity and life instead of rescuing her from either."

This is a vision quite close, I think,  to what William Connolly calls, following Foucault, a "political spirituality," or what John D. Caputo has called a "religion without religion." Mysticism of the left, it is roomy enough for a circus tent full of misfits. May its tribe increase!

 

 

 

Locating the Dignity of the Dead

“Even those who think that death is a continuation, and not an ending, can benefit from contemplating the implications of annihilation. That annihilation would be bad for them explains why it is important to live forever: it is the only way to avoid the evil of annihilation. If, on the other hand, annihilation would not be bad for them, the question arises as to why they value the prospect of immortality.”—Steven Luper [1]

“The human species is only partly natural. It is the only species about which that can be said.”—George Kateb [2]

“Philosophers tend to think that precision is always important, but they have known since Aristotle that that may not always be wise. Sometimes the quest for precision blinds us to certain insights that we can as yet only formulate haltingly; sometimes it blinds us to the importance of pursuing certain questions (and linking them to other questions) even when there is not yet an answer in sight.”—Jeremy Waldron [3]

At Concurring Opinions a couple of weeks ago, Professor Taunya Banks penned a delightfully provocative post titled “Fortune’s Bones: Is There Dignity after Death?” Banks introduces three different historical cases: the 1995 Body Worlds exhibit by Gunther von Hagens; the skeleton of an enslaved man (whose name was Fortune) who died in 1798 and was being studied by the anthropology faculty and students at Quinnipiac University; and perhaps the best known of the three, the story of Henrietta Lacks as recently discussed by Rebecca Skloots in her book The Immortal Life of Henrietta Lacks (2010), that together raise for her the question of whether or not the concept of dignity can be applied to deceased individuals, in other words, “Is there dignity after death?” The following paragraphs conclude her discussion, followed by my attempt to address her question:*

[….] “Scientists and anthropologists might argue that the cases of Fortune and Mrs. Lacks are distinguishable from Gunther von Hagens’ Body Worlds exhibit because the educational value is clearer in the former than the latter. They might also argue, as one Johns Hopkins researcher told me, that the HeLa cell is not part of Mrs. Lacks but has morphed into something quite different.[4] Thus it does not matter that her family consider the cell to be a living part of their deceased family member. Still others like academic Stephen Bates ask whether human corpses are different from skeletons or human cells. (Prenates, Postmorts and Bell-Curve Dignity, Hastings Center Reps. 2008) The more human-looking the remains, Bates writes, the more concerns about dignity seem to arise.

According to my colleague Leslie Henry, there are strong arguments for dignity after death as well as some laws that arguably recognize some type of dignitary interest. Physicians usually are required to secure consent from the deceased’s next of kin before using a cadaver to teach medical students. There are statutes that penalize the desecration of grave sites (beyond trespassing). There also is the Native American Graves Protection and Repatriation Act (NAGPRA) which required federal agencies to return ‘cultural items’ including human remains, to the descendants of Indian tribes and Native Hawaiian organizations. Granted none of these laws directly touch on the cases of Fortune and Mrs. Lacks.

In the end I offer no suggestions. But I am concerned because too often the people denied dignity in death, were also denied dignity in life.”

*           *           *           *           *           *           *

I’ve been pondering Professor Banks’ thoughtful and moving post for some time now and have arrived at the point at which temerity prompts me to share my tentative thoughts on (explicit and implicit) questions raised by her piece. I think it is true that there is something to the notion of a “dignitary interest” with regard to the dead (as individual persons). This is not my preferred term, however, as it suggests the decedent herself has post-mortem “interests,” which is eminently arguable and, I believe, not true.[5] But if we understand this dignitary interest as having something to do with the attitude and respect of the living toward the decedent as a previous embodiment or incarnation of transcendent value, a value which transcends sentience conceived entirely in naturalist or materialist terms (yet see the non-reductionist naturalism of Grant Gillett cited below which attempts to finesse or overcome this distinction), then it’s possible to articulate a stipulative or précising definition which allows for the possibility (in some sense) of “disrespecting the dead” but not harming them. It is not that the dead person’s bones or cremated ashes, or some scientific sample of cells, as such, that incarnates the transcendent value of dignity; so we cannot speak, literally at least, of “continuing assaults on the dignity of the deceased.” Rather, with death, it is our memory of the fact that a person, with a unique narrative history, a person of intrinsic dignity and incomparable value or worth has passed, and death, as the converse of life, is an occasion for our individual and collective reflection on—as remembering, commemorating, and honoring—the precious nature of personhood, the powerful concept of dignity, and the nature of human normative agency. Our treatment of a dead person’s remains will reveal our ability to respect and to honor, and is therefore symbolic of, a human being who, for a brief period of time, was locus of the dignity of humanity in his or her own person, an individual who was, at one time, the incarnation of transcendent value.

In addition to or apart from recognizing the expressed preferences of the decedent about what to do with her remains, or attempts at inferring the wishes (e.g., by way of immediate family, closest friends, or end-of-life caregivers) of the decedent, and sans any traditional burial or after-death treatment and (ritualistic) practices associated with a decedent’s worldview, I think we might somehow express, reveal or evoke something of the dignitary attitude of respect in the manner in which we respond to the death of an individual and treat their remains. Such expression can come not only from those who knew or were close to the decedent, but also from those whose task is to handle the remains. We might, for example, mandate a period of memory and commemoration for the decedent that recognizes an individual of incomparable worth, of inherent dignity has died (regardless of whether such dignity was respected in the person’s lifetime or what kind of life that person lived; hence, again, this is not about any post-mortem interest as such), and deserving of acknowledgment and remembrance if only for this reason. I believe the manner in which we handle the remains can and should be the occasion for honoring or celebrating the dignity of personhood, for ritual remembrance of the respect owed humanity in the individual person. The remains can become the occasion or means whereby we honor the transcendent value of dignity that we failed (or may have failed) to recognize and respect during the person’s lifetime. This demonstration of respect I imagine to be very close—similar or analogous—to the Confucian understanding of the proper performance of li.[6] As Banks notes in her second paragraph above, there are some legal rules for particular situations or occasions that can be viewed as (directly or indirectly) permitting or encouraging demonstration of this respect. 

   The question then becomes whether or not we can find some means whereby we generalize such an attentive and focused demonstration of dignitary respect for all decedents, perhaps through engagement in a (secular) ritual celebration or honoring of the dead person in a way that affirms and reinforces our belief in human dignity and the incomparable value of normative human agency. After Stephen Darwall, this takes the form of recognition respect, distinguished from appraisal respect insofar as the former lacks the latter’s conceptual connection to merit and esteem: “Recognition respect concerns, not how something is to be evaluated or appraised, but how our relations to it are to be regulated or governed.” Following the performance of such a secular ritual (at least in the case of those whose wishes are not known or whose worldview does not prescribe some kind of funeral service), which might be as simple as a published or public proclamation (that speaks to the dignity and inviolability of the human person), perhaps in conjunction with or followed by a period of time in which the remains are not in any way disposed or used for scientific research, the decedent’s remains—be they bones and teeth, cremated ashes, or simply cells—could then be buried, scattered, or enlisted for scientific research. At this point in time, that part of ourselves which belongs indissolubly to the natural world (for a ‘transcendental’ or non-reductionist naturalist like Grant Gillett, this ‘part’ would be a human being absent the narrative ‘space’ of reason and will) and by which we make sense of the notion of embodiment, can now return to the natural world (including the natural world as understood in the sciences), no longer a locus of transcendent value in the form of human dignity. This (so to speak) return to the natural world upon the fulfillment of such conditions represents one point along the continuum of dignitary respect for the dead, for the living, and for those who follow us as loci of transcendent dignity. To leave our “human world” and return to the greater natural world is something the psalmist and secularist, the Muslim and the man-in-the-street, the Daoist and the Buddhist, can alike appreciate in a language that connotes spiritual, metaphysical and aesthetic sensitivity and sensibilities in speaking to the grandeur, the sublimity, the harmony, proportion, and beauty of nature. (Bear in mind that things are a bit different in the case of Mahāyāna Buddhism because, after Nāgārjuna, nirvāṇa and saṃsāra are said to be ‘not different’ when viewed from the ultimate nature of the Dharmakāya, for an individual can attain nirvāṇa in this lifetime by following the Buddhist path. Their duality is only (a) conventional (truth), for if they were ultimately different (or expressed an absolute truth) this would be impossible. By implication, this speaks to the conventional duality of life and death as well, hence a ‘return’ to nature is only true conventionally speaking, and thus for any of us who have not had the requisite spiritual realization that establishes the non-difference between nirvāṇa and saṃsāra…or life and death, it will appear as absolutely true. Something comparable to this might also be the case in Daoism.) But as a condition of this return to nature, a ritual or solemn acknowledgement of transcendental dignity and intrinsic inviolability of the human person in reference to the decedent, including a proscribed period in which the decedent’s remains are not to be used for any educational or scientific purposes, could go some way toward communicating the all-important value of human dignity and our respect for the nature of personhood as indicative of the manner in which our species transcends the natural world.

Now, for various reasons, some of them of Kantian provenance or inspiration, showing respect for such dignity has been taken to mean acknowledging the person’s (normative) human agency (as a capacity), in the sense that the ways of being (a) human (animal) distinguishes us from our nonhuman animal relatives. This means honoring both our “being” and “willing.” David Luban, who prefers a naturalistic and non-metaphysical account of dignity—albeit one with “ontological heft”—believes Kant was speaking more about “willing” than “being,” but I think he’s mistaken on this point. In any case, Luban’s discussion of dignity is largely intended for legal ethicists (although it has wider value outside that application, as he himself suggests and demonstrates), and in this context he speaks of the lawyer listening to the client’s “story,” every person having a “story” to tell insofar as they are “authors” in some measure or another of their lives (and, as characters, part of the narrative accounts of at least some of those with whom they have interacted over the course of their lives). These stories revolve around “meaning” of various kinds, however inarticulate or disturbing we might, as outsiders, find them to be (think of those accused of the most heinous crimes), for to “have a story,” Luban writes, “means being the subject of experience, and it means existing in a web of commitments, however detestable or pathetic those commitments may be.” Luban’s naturalistic rendering of dignity appears unable to account for how we might accord dignitarian respect toward the decedent, after all, the author of the story, the subject of the experience, is no longer with us. And yet he or she may become a character or even protagonist in the stories of those who survive and follow the decedent, for we are, as has been said “inveterate story tellers” (folk psychological theory, say, like that proffered by Daniel Hutto, is here quite useful in accounting for this fact). These stories could be seen as functioning to remind us what it means to be human, involving questions of individual and collective identity, memory, and meaning, for example.[7] In short, we treat the dead with respect (more about this in a moment), as a reminder to the living what it means to live a human life, for death is a vivid and insistent reminder of the value and beauty of life (human and non-human), a value and beauty that becomes part and parcel of the best stories we tell. Luban’s approach might be filled out or simply supplemented with recent work in narrative ethics and narrative metaphysics, especially if we should want to employ it for treating the question of “dignity after death.”

May Catholic Supporters of Marriage Equality Receive Communion?

Can a Catholic who upholds marriage equality receive Holy Communion?  This was the question put to Archbishop Allen Vigneron of Detroit, who answered in the negative, declaring that Catholic supporters of marriage equality should refrain from the Eucharist.  They "deny the revelation of Christ entrusted to the Church," the Archbishop said, and added:  "This sort of behavior amounts to publicly rejecting one's integrity and logically bring[ing] shame for a double-dealing that is not unlike perjury."

On April 12, however, retired Detroit Auxiliary Bishop Thomas Gumbleton contradicted Vigneron and reassured Catholics: "Don't stop going to Communion. You're okay."

So, in this Motor City clash, who is right?  To resolve this question in absolute terms, we need to know more about what Archbishop Vigneron was thinking.  It is possible that he meant only to address Catholics who believe that marriage equality is a settled matter of ecclesiastical law and doctrine.  That is, he may have been speaking to Catholics who wish to have local parishes perform same-sex marriages as a matter of internal Church practice.

But it is more than likely he had something else in mind.  And that was to speak to Catholics who believe that secular society should adopt an expansive understanding of marriage, embracing both heterosexual and homosexual unions so as to accommodate the needs of a rich and diverse nation.  Clearly, one of the Archbishop's principal sources for his statement, the Detroit canonist Ed Peters, had this in mind when he wrote that "[t]he Catholic Church has the right and duty 'always and everywhere to announce moral principles, even about the social order, and to render judgment concerning any human affairs insofar as the fundamental rights of the human person or the salvation of souls requires it.'"

Well, OK, then, where to start? American marriage law has never conformed precisely with the Catholic understanding of marriage.  Never. To be sure, early American marriage law possessed a religious character, derived variously from Anglican canon law and the cultural Calvinism that defined sexual mores for much of American history.  But even when American marriage law was distinctly Christian, it was never distinctively Catholic.

And that is certainly true today, as marriage has grown increasingly secular in the post-World War II era.  What about divorce?  The Catholic Code of Canon Law teaches that an essential property of marriage is its "indissolubility" (c. 1056).  From the very beginning of American history, however, secular courts have been in the business of decreeing divorces and permitting persons to move freely to new spouses, a process that greatly accelerated with the enactment of no-fault divorce in the 1960s and 1970s.

Surely, we would expect to see bishops and archbishops vigorously defend this essential property of marriage by reminding Catholics that they should not support a legal regime that permits divorce.  Perhaps Catholic lawyers who have a family-law practice should never take a divorce case?  Perhaps Catholic judges should resign from the bench?  Perhaps Catholics in the pews should be called upon to ask their legislators to repeal American divorce law?  Ireland, until the 1990s, did not have secular divorce courts, relying instead upon ecclesiastical tribunals.  Perhaps our own secular law of divorce needs to be rolled back.  That, at least, is where Ed Peters' logic would lead.

And what about contraception?  In 1965, in the case of Griswold v. Connecticut, the United States Supreme Court recognized access to artificial means of contraception as a constitutional right.  This constitutional doctrine stands squarely athwart the Church's teaching on contraception as it is expressed in Humanae Vitae.  Perhaps Catholic jurists should demand Griswold's reversal.  Rick Santorum, at least, seems to think that should be done.  And when Griswold is reversed, the old laws against contraception should be once again be enforced.  Again, the same logic that would ban supporters of marriage equality from Communion could be extended to cover all those who refuse to support the reinstatement of the old contraception prohibition.

What of in vitro fertilization?  Once again, must Catholics rally to outlaw most forms of in vitro fertilization?  And must Communion be used to police this political cause?  What of pre-nuptial agreements made in contemplation of divorce?  Should these also be outlawed?  The list could be extended.

The point in saying all of this, of course, is to stress that on matters of divorce, contraception, and even in vitro fertilization, Catholics have reached a modus vivendi with the larger secular society.  Catholics truly believe in the indissolubility of marriage.  That, for Catholics, is what makes marriage sacred.  And even while most Catholics practice contraception at some point in their lives, they also, most of them anyway, acknowledge that opposition to contraception is part of their Church's teaching.  Same goes for in vitro fertilization.  Most Catholics appreciate the moral dilemmas posed by this practice.  But Catholics by and large do not try to outlaw these practices as a matter of secular law,  nor do bishops try to use Communion as a means of enforcing this sort of political agenda.

If the Catholic Church and secular society can achieve co-existence on these points, why not on marriage equality?  If a Catholic can believe that a secular divorce law is allowable, even though it is opposed to an essential property of marriage, how is that different from a Catholic who believes that secular law should adopt marriage equality, even if it does not conform to the Catholic understanding of marriage?

What this line of questioning is really calling for is a searching re-examination by Catholic thinkers of Church/State and Church/Society relations.  What does it mean for the Catholic Church to exist in a world that is authentically pluralistic?  These are questions, however, that should be considered in another post, on another day.

Cross-Posted at http://www.huffingtonpost.com/charles-j-reid-jr/may-catholic-supporters-of-marriage-equality-receive-communion_b_3094338.html

Political Advocacy and Academic Freedom

On Saturday, Ross Douthat wrote about the conflict between a neutral and impartial press and a press out to advocate for social justice. I was reminded of those who have what I think is a shriveled sense of the role of academics and the nature of scholarship.

There are many, but Larry Alexander (77 U.Colo.L.Rev. 883 (2006)) has an excellent statement of what might be the dominant view (though his essay is marred by a myriad of unsupported or thinly supported conclusions about political advocacy in the contemporary university, conclusions that may or may not be correct). Alexander maintains that an academic follows arguments and evidence where they lead regardless of whether they support his political goals. He contrasts this with the political advocates who know the conclusions they wish to reach and cast about only for arguments and evidence that supports their views. These characterizations are framed by a guarded (if I read him correctly) admission that normative scholarship is properly a part of university life.

Alexander describes normative argument as a branch of philosophy and asserts that there are well established standards for judging normative discourse that do not depend on one’s normative commitments. I agree that normative discourse generally can and should be evaluated without regard to one’s normative commitments and that there are well established standards for doing so, but I do not agree that normative arguments are a branch of philosophy. Rather philosophy as a discipline has a certain style of normative argument. Law school scholarship is filled with normative argument; it usually is not philosophic in character; and philosophers would be less competent to judge it than law professors. The same is true of other disciplines though I think a significant problem with the university is that there is not enough normative argument particularly in political science departments.

I have given Alexander a narrow reading on the role of normative argument in the university, and he might well agree with what I have said. My main issue is what appears to be a narrow reading of academic. I do not deny that the impartial academic described by Alexander is one form of academic. I also agree that professors who employ only arguments that support their position while ignoring arguments on the other side are engaged in shoddy scholarship. But political advocacy can be excellent scholarship when it is good advocacy. It simply does not matter whether the scholar started out with a political conclusion in mind or got to the conclusion in the course of solving a puzzle. Indeed, I suspect that most of the best normative scholarship has been produced by the committed rather than the puzzle solvers, mainly because I think most scholarship gets started by a strong commitment or intuition rather than by a scratch of curiosity – though I have started projects from both perspectives.

Alexander argues that political advocates do not deserve academic freedom. But this loses sight of an important argument for academic freedom. It is highly desirable for scholars to publish their work based on their independent views rather than to have it controlled by a central administration. In a democratic society, it is particularly important to have political arguments developed in an independent way.  Alexander wants depoliticized scholarship and hiring. I agree that scholars should generally be hired regardless of political view, but in a society where sound bites and televised shouting pass for political discourse, we need more well-argued political advocacy – not less. 

Religious Worldviews: Characteristics

I think the presence of most if not all of the following “characteristics” helps us clarify what we often (and perhaps should) mean by the term “religion” or religious worldview (these might even serve as criteria for identifying ‘religion’ for legal purposes). It is capable of encompassing both “Western” and “Eastern” religious traditions, theistic and nontheistic worldviews, as well as many new (although not necessarily ‘New Age’) religions. The assumption here is that there is no readily or agreeably identifiable “essence” to religion, even if we often focus on certain dimensions or characteristics, say, a core set of beliefs (as a central set of truth-claims), the “transcendence” of religion, certain sorts of religious experience: of the “numinous” or “mystical” or “revelatory” and so forth. Our next task would be to identify what it means to cleave to a non-religious worldview.*

1. Belief in supernatural beings (spirits, gods, etc.), God, or a supreme divine principle or force (in the latter case, comprehensive or ‘holistic’ in structure).

 2. A distinction between sacred and non-sacred (or ‘profane’) objects, space, and/or time.

3. Ritual acts centered upon or focused around sacred events, places, times, or objects. This includes such activities as worship, prayer, meditation, pilgrimage, sacrifice (vegetable, animal, or human; literal or figurative), sacramental rites, lifecycle rituals, and healing activities.

4. A moral code (ethics) or “way of life” believed to be sanctioned by the gods or God, or (in an informal sense: logically) derived from adherence to the divine principle or force.  (There is no assumption here that morality need be religious, indeed, morality is conceptually distinct from and independent of religion.)

5. Prayer, worship, meditation, and other forms of “communication” or attunement with the gods, God, or the divine principle or force.

6. A worldview that situates, through (usually mythic) narrative, the individual and his/her community and tradition within the cosmos, world, and/or history. It is a significant, if not primary source of one’s identity, both in its individual form and group aspect. The worldview articulates the meaning—makes sense of—the group’s cultural traditions: its myths, history, rituals, and symbols. This often involves treating questions of the meaning of life and death (and what, if anything, follows death for a human being), of suffering and evil, of what philosophers term questions of personal identity, of humanity’s relation to the cosmos and natural world, its relation to nonhuman animals and perhaps a “spirit” world or “other worlds.” The worldview articulates the fundamental values of a religious community so as to affirm its most important values and/or its “ultimate value.”

7. Characteristically religious emotions or attitudes associated with that thought to be of divine provenance or endowed with “spiritual” power: a peculiar form of awe and fear, “dread” or angst, existential anxiety, sense of mystery, adoration, reverence, love, devotion, hope, a sense of guilt or shame, serenity, compassion, bliss, etc.

8. A more or less total organization or structuring of one’s life or individual lifeworld based on an understanding (hence interpretation) of the religious worldview (the ‘lifeworld’ may include beliefs, values, and practices not directly linked to or associated with a religious worldview). This understanding does not necessarily coincide with the normative pictures painted by those with religious authority or the “official” worldview of the religion, indeed, it may be rather idiosyncratic or even cognitively crude or fairly sophisticated, psychologically and philosophically speaking. Prima facie evidence reveals the religious adherent believes in or is attempting to live in accordance with the worldview.

9. A social group wherein personal and collective—cultural—identity is forged by the aforementioned factors.

10. Artistic or creative expressions related to any of the above characteristics.

We might keep in mind that the sort of analytical clarity sought in philosophical circles or the desiderata of semantic legal precision may not be applicable if by that is meant a definition (or something very close to a definition) of religion. Why? The late B.K. Matilal provides one reason from the philosopher A.N. Whitehead:

“Insistence on clarity at all costs is based on sheer superstition as to the mode in which human intelligence functions. Insistence on hardheaded clarity issues from sentimental feeling, as it were, a mist cloaking the perplexities of fact.”

* This list of characteristics is inspired by and in part follows that first provided by William P. Alston in the volume he edited, Religious Belief and Philosophical Thought: Readings in the Philosophy of Religion (Harcourt Brace Jovanovich, 1963): p. 5.

Addendum: In response to a comment to this post, I thought the following might be of interest: There has long been a recognition among anthropologists, sociologists, and historians (and even a few political scientists) that nationalism is often intertwined with religion and that nationalist and political ideologies frequently possess religious or religious-like characteristics: the radical break with tradition sought in the French Revolution resulted in a new political culture filled with rhetoric, symbols, images, and festivals with mythological and religious precedent or resemblance. The cases are varied and widespread: Zionism in Palestine, Maoist Marxist-Leninism in China (which functioned like a state religion), and what Robert Bellah famously (or infamously in some quarters) defined as “civil religion” in this country, to cite several of the more conspicuous examples. In the words of my teacher and mentor in the study of religions, Ninian Smart, “It is a not uncommon observation that modern nationalism functions like a religion.” So too the late Marxist historian Eric Hobsbawm notes in his work on “nations and nationalism,” the “links between religion and national consciousness can be very close, as the examples of Poland and Ireland demonstrate,” and as is often noted today with regard to Islam in the Arab world. Yet we should also point out, with Hobsbawm, “that the prevalence of transnational religions, at all events in the regions of the world in which modern nationalism developed, imposed limits on religio-ethnic identification.” Finally, again with Hobsbawm, and perhaps indicative of the complexities of the historical entanglement of religion and nationalism, sometimes religious conversion has led to the creation of two distinct nationalities: “for it is certainly Roman Catholicism (and its by-product, the Latin script) and Orthodoxy (with its by-product, the Cryllic script) which has most obviously divided Croats from Serbs, with whom they share a single language of culture.”

William Stringfellow: Patron Saint for Religious Left Law?

Here at the Episcopal Church at Cornell, a number of us have been getting more and more excited exploring the bracing theological vision of William Stringfellow, who was a lay theologian and lawyer by training, close friend of Daniel Berrigan (Berrigan was at Stringfellow's house when the FBI 'caught' him for his anti-war activities), and biblical theologian of the highest order.

 

In the sixties when he visited the United States and was given a tour of Harlem where Stringfellow did much of his theological/legal work,  Karl Barth declared that Stringfellow was the voice to whom American Christians ought to be listening. 

More recently, Rowan Williams, one the finest English language theologians of our time, suggested that Stringfellow, who had a mere semester's worth of formal theological training, was one the most important American theologian of the past fifty years, a writer of "astonishing originality and power." 

 

Significantly, Stringfellow's work has been even more influential among legals minds. Anthony McThenia, retired professor of law at Washington and Lee Law School, is one of Stringfellow's greatest interpreters, editing a remarkable volume entitled Radical Christian and Exemplary Lawyer. In that volume is, among others, a wonderful essay by Emily Fowler Hartigan of St. Mary's Law School in San Antonio on the profound and lasting impact Stringfellow's thought has had on her own practice of law. 

Stringfellow is not easy--he is prophetic and at times overwhelmingly so, and he was a quite complicated man. Openly gay, a defender of the Episcopal Bishop James Pike at his heresy trial in the 60's, and a resolutely biblical theologian who rarely discussed more scholarly forms of thought, he thought that if you wanted to find Jesus, you should go to hell first to look for him! 

 

But for those of us who believe that the practice and study of law has theological, political, and ethical implications, for those of us who are progressive yet unwilling to hand the language of religion over to the voices of nationalist, exclusionary, and politically reactionary forces, we could hardly ask for a more powerful interlocutor. Here at Cornell where Stringfellow's papers are housed, a number of us, including faculty, are beginning to think the time is perfectly ripe for a rediscovery of this remarkable voice--a thinker who was committed to thinking about the law in all its messiness and richness; the practice of law as more than a job. It is, he thought, a vocation, and we might hope that  this will continue be a topic for conversation for all who believe that the law has healing resources to convey. 

 

 

Congratulations to our friends at Mirror of Justice!

Our friends at Mirror of Justice are now--a little belatedly--celebrating the 9th Anniversary of MOJ.  A hearty congratulations!

DOMA, Federalism, and the Need for Deliberation on the Left

When Justice Kennedy suggested that he might vote to invalidate DOMA on the ground that the Constitution does not give the Congress the power to define the family, many liberals were cautioned to be careful of what you wish for. In the current political constellation, liberals favor a strong Federal government with generous interpretations of the powers conferred by the Constitution. This is understandable given the conservative attempt to block the New Deal and the Southern emphasis on state’s rights which served as a proxy to enable continued race discrimination. Of course, it is integral to liberalism to support strong legislative power to enforce the Civil Rights Amendments. And the Court’s stingy interpretation of section five of the fourteenth amendment strikes me as a betrayal of clear constitutional principles. (You would almost think the Civil War was never fought).

But the favoring of strong commerce power seems to me to be less integral to liberalism or the left and more a product of path dependence. I am not suggesting that the Federal government should not have the power to regulate the national economy and I regard the conservative claim that Congress lacked power under the commerce clause to enact the Affordable Care Act to be indefensible (even though the claim was accepted by five of the Justices). But I think the Court was right to say that Congress lacked power to outlaw the possession of a gun near a school. It may play well to the folks back home to know that their congressman opposes guns near school, but the commerce clause argument wrongly assumes that federal intervention is needed for a local law enforcement problem while relying on remote commercial effects.

For those who think it is a mark of the left to demand centralization, I would merely observe that the Students for a Democratic Society and Gandhi were strong proponents of decentralization. I doubt many conservatives would regard them as fellow travelers.  

"If the Church Is Serious About Welcoming Gays..."

That's the title of an op-ed in this morning's Times.  Here.

The Change in Catholic Thinking About Jews and Judaism

With permission from George Conk, I am posting his review of From Enemy to Brother first posted at Blackstone Today here.

There is one other event which transcends the limits of the year, since it is measured in centuries and millennia in the history of this city and of this Church. I thank Divine Providence that I was able to visit our "elder brothers" in the faith of Abraham in their Roman Synagogue! Blessed be the God of our fathers! The God of peace!

Pope John Paul, II December 31, 1986 

How did this epochal change of understanding and its particular expression of brotherhood come to pass, this official, and personal Papal renunciation of centuries of Christian disparagement of Jews and Judaism?  John Connelly, UC Berkeley historian, finds its roots in the efforts of Catholic intellectuals - largely converts - from the border regions of northern and central Europe.  In his much lauded  intellectual history From Enemy to Brother Connelly justifies his subtitle `The Revolution in Catholic Teaching on the Jews 1933 - 1965'.
It is a brilliant intellectual history locating the origins of the change in Austrian and central European Catholic intellectuals who fought Nazi racism and sought to respond appropriately to the Holocaust.  The struggle was not a liberal repudiation of racism nor was it a simple repetition of "love your neighbor".  It yielded an epochal theological embrace - that Judaism is the root, and Christianity a branch grafted to the root.  They finally accomplished a revolution at Vatican II, abolishing the "mission to the Jews" and transforming the relation of Christian to Jew as an ecumenical one of equals, not of evangelist to stranger.

At the center of the narrative are Johannes Osterreicher - an Austrian Jewish convert and Karl Thieme - a Protestant convert - as intellectual sparring partners struggle against Nazi racism, and then `anti-judaism' to find a basis for resolving the ancient conflicts of Jews and Christians.  They developed their theology rooted in Paul - the self-described Apostle to the Gentiles.  In his letter to the Romans Paul affirmed God's loyalty to the Jews, but not without ambiguity:

In respect to the gospel, they are enemies on your account; but in respect to election, they are beloved because of the patriarchs. For the gifts and the call of God are irrevocable.  [Romans 11]

This yielded Nostra Aetate, the great Vatican II statement of respect for other religions and repudiation of anti-semitism and embrace of the Church's Judaic "root" to which Gentiles are "grafted", concluding:

We cannot truly call on God, the Father of all, if we refuse to treat in a brotherly way any man, created as he is in the image of God. Man's relation to God the Father and his relation to men his brothers are so linked together that Scripture says: "He who does not love does not know God" (1 John 4:8).
No foundation therefore remains for any theory or practice that leads to discrimination between man and man or people and people, so far as their human dignity and the rights flowing from it are concerned.

The Church reproves, as foreign to the mind of Christ, any discrimination against men or harassment of them because of their race, color, condition of life, or religion. On the contrary, following in the footsteps of the holy Apostles Peter and Paul, this sacred synod ardently implores the Christian faithful to "maintain good fellowship among the nations" (1 Peter 2:12), and, if possible, to live for their part in peace with all men, so that they may truly be sons of the Father who is in heaven. 

Though generally laudatory, Garry Wills, in the New York Review of Books, lamentsthat Connelly   did not write a biography of John nee' Johannes Osterreicher.   Wills would have done better to confess a personal preference for biography.  But I, like Michael Winter, in a review at NCR online find Connelly's account of the exegetical history to be  compelling.  And I agree with Connelly's student Gene Zubovich.  He writes at U.S. Intellectual History Blog that Connelly has produced  an exciting intellectual history which opens new avenues of exploration - including the remarkable observation that in the Church's triumph over racism and anti-Judaism liberalism was not a force, but rather the shock of the Holocaust demanded reconciliation of its horrors with a Christian eschatology to which I, like other moderns, have payed little heed.

Pope Francis and Museum-Piece Catholicism

Jaroslav Pelikan once called tradition the living faith of the dead and traditionalism the dead faith of the living. I am reminded of this pithy observation as I watch right-wing Catholics react to Pope Francis' warm-spirited evangelization. The comments on Rorate Caeli (in Latin, "let the heavens fall like the dew"), were frightening in their intensity. Speaking of the pope's decision to wash the feet of women convicts on Holy Thursday, one commentator wrote: "Wonder why he didn't wait until tomorrow [Good Friday] to stick a spear in the side of the Bride of Christ?" Another commentator added, using bold print: "Francis is being OPENLY DEFIANT to Tradition in the Church." (See Comments section to "The Official End of the Reform of the Reform -- By Example," Rorate Caeli, March 28, 2013).

It is this idea of tradition that is worth considering. According to the Catechism of the Catholic Church, the "living transmission" of the message of salvation is "called Tradition, since it is distinct from Sacred Scripture, though closely connected to it" (paragraph 77).

The right-wing furor over the pope's foot-washing puts into stark relief two ways of viewing Tradition. The first approach is that of the commentators on Rorate Caeli. Tradition is fixed and unchanging. What was done yesterday must be done today, and tomorrow, and the day after that, world without end, Amen. The role of priests and the hierarchy on this model is not unlike museum curators. They preserve the past, seal it in glass cases, reverence it, bring it out on special occasions, surrounded by pomp and glory. And it is the duty of the laity to gaze on with due admiration at the delicacy and the intensity of these wonderful old masterworks.

Nowhere is this reverence for a fixed and unchanging past on better display than among ecclesial conservatives in today's Catholic Church. Mass must be exactly as it always was. The priest must chant. Communion must be on the tongue. Women must wear headscarves. And only men may have their feet washed at the Holy Thursday because, well, Pope Pius XII decreed it. But this idea of the fixed and unchanging Church goes far beyond the details of liturgical celebration. Just look at the debates over moral teaching.

The language of the Catechism, however, cautions against static conceptions of Tradition. After all, it refers to the "living transmission" of practice and doctrine. The adjective "living" insists upon a dynamic application of Tradition. It is tradition that is adaptive and forward-looking, not enclosed and self-referential.

And indeed, if we look at Church history we do not find static, changeless, timeless truths but a dynamic response to changing conditions. Consider just one fundamental issue: the composition of the Christian New Testament. The Bible was not automatically known to the first Christians. It was developed incrementally, in stages, through reflection, discussion, disagreement and debate over the first four hundred years of Church history.

Important theologians, still respected and revered by the Church, relied on books that are not considered canonical today. Clement of Alexandria (c. 150 - c. 215) made use of the Gospel of Thomas and the Traditions of Matthias. The Acts of Paul and Thecla, the legendary account of Paul's travels with his feminine companion Thecla, was invoked by a number of orthodox writers. St. Ambrose, that paragon of proper belief and practice, presided over his diocese from the Cathedral Church of St. Thecla and recommended to the nuns of his diocese the life of St. Thecla as a model of virginal dedication. Other orthodox writers meanwhile, rejected books now considered canonical. Thus the sainted fourth-century bishop Gregory Nazianzus maintained that the Book of Revelations was not biblical and should therefore be excluded from the Scriptures.

The point of this historical exercise is to demonstrate that even on big issues -- and no question is larger than defining what counts as Scripture -- tradition played the leading role in determining what got in and what was omitted. It was a messy, dynamic process. Tradition was not handed down in a single moment of radiant light on Calvary, but was developed by Christian communities trying to learn the authentic Word of God for themselves and to shape their lives accordingly. Tradition is not static, but dynamic.

The same phenomenon repeats itself in the area of moral teaching. John Noonan has shown how Church doctrine developed in areas like usury (see his book, "The Scholastic Analysis of Usury"). In the early middle ages, the Gospel verse instructing us "to lend freely, asking nothing in return" was taken literally as forbidding all interest on loans. In the high middle ages, canonists and theologians invented legal fictions that allowed for the taking of moderate interest where it could be shown that the money lent otherwise had productive value. And by the time we reach the 18th and 19th centuries, even the fictions disappeared as moral theologians, learning from the experience of Christian merchants, concluded that the taking of interest was not sinful but a necessary part of commercial life. It was not a crime, but an engine of prosperity for many people.

Pope Francis grasps this. He understands that tradition is a continually unfolding process and that individuals are not passive observers but must play a role in the constant renewal and re-creation of what it means to be Church. Nothing can ever be handed on exactly, because historical context is constantly shifting, altering our vantage point and making all things fresh. It is this deep self-awareness that makes him so very appealing to such a large audience of Catholics and non-Catholics alike.

And it is this openness to revision that so deeply threatens what the conservatives take to be the eternal verities. When he declined the elaborate vestments at his first appearance on the balcony of St. Peter's, when he asked for the crowd's blessing, when he referred to himself modestly as the "Bishop of Rome," he was symbolically altering the way people look at the papal office. And if we view how the papacy can change, conservatives fret, then there is nothing that can't be accommodated to fit the temper of the times. Hence the alarm at washing the feet of women -- and Muslims -- on Holy Thursday.

The Church cannot be all change, all flux, lacking all core or conviction. But at the same time, the Church has been most alive when it has been swept by change -- whether that be the ascertainment of the Books of Scripture, the founding of the great religious orders, like the Franciscans and the Jesuits, or the shifts in Church teaching brought about by the Second Vatican Council. Who knows, perhaps we are once again about to experience an exciting time of change?

Cross-posted at: http://www.huffingtonpost.com/charles-j-reid-jr/pope-francis-and-museum-piece-catholicism_b_3010868.html