Thursday, September 27, 2007

That Was Quick

As reported in this past Tuesday's "Hoya" newspaper, the Dean of the Georgetown Law Center has reversed his decision, reached earlier this year, to ban Law Center funding for summer internships at organizations that advance causes antithetical to Catholic teaching, and in particular, pro-choice organizations. I discussed this decision previously here, and the decision was expectedly widely publicized, discussed, decried, and protested against by students and faculty in the Law Center.

The Hoya reports that the Law Center will no longer consider "the mission of each organization when determining grants provided by a student-run organization to students for summer internships." In other words, the Law Center is going to treat each organization "neutrally," without inquiring into its mission and whether it is in keeping with the Jesuit and Catholic character of Georgetown.

This outcome was almost inevitable: the policy of weighing against certain organizations was going to be challenging from the outset. It would have required the Law Center to be discriminating, and to develop a set of standards and criteria by which to adjudge whether certain organizations' missions were in keeping with Catholic doctrine. It would have required an articulation of which portions of the doctrine required firmer enforcement than others, and whether certain iterations of potentially disapproved organizations might be more acceptable in certain situations than others. In short, it would have required the thing that modern Law (ironically) rejects: judgment, or phronesis. Such judgment is rejected by the Lockeian, Kantian, Rawlsian universalism of our current jurisprudence and political philosophy, and places like the Law Center are the most vociferous purveyors of this universalist philosophy. The statue of blindfolded Justice is no longer a symbol of disinterest, but a portrayal of literal blindness to particularity and rejection of the need for judgment. This is ironic, of course, because justice (as Aristotle and Aquinas tell us) cannot be blind to particularlity: a universally applied decision is in practice always unjust, because human beings and history always demand attention to particulars.

Judgment succumbs to those forces that Tocqueville rightly diagnosed as being at the heart of modern democracies: the rejection of distinctions and forms, the revulsion against discrimination and boundaries, the abolition of mediation and the eschewal of divisions. What can begin as the righteous opposition to unjust discrimination easily becomes indignation of all forms of distinction. Thus, the rightful rejection of laws against miscegenation becomes the rejection of laws that defend marriage of one man and one woman. The justified fight against racial discrimination becomes the crusade against any judgments that threaten our self-esteem, leading to a culture in which every child receives a trophy after the season and grade inflation is rampant (and these are hardly the most pernicious forms that this impulse takes). Tocqueville rightly predicted history would become the story of forces, rejecting the idea that history was made by great men and women; poetry would become populated by ordinary people, not heroes or models, an anticipation of the poetry of Whitman; and religion would become pantheistic, collapsing the divide between heaven and earth so that the sacred and the profane became one. He also told us that all political problems would become judicial problems, in the main because we would reject the messy realm of politics for the winner-take-all universalism of the courts.

The Law Center would have had to engage in the now-discredited but noble practice of casuistry in order to maintain this policy. Casuistry - a word that today bears almost total negative connotations - is the effort to apply judgment to specific cases in light of the background presupposition that there are general moral and natural laws. The application of those universal moral laws must take into consideration the specificity of human circumstance and individual contingency, and thus leads to a certain variability of judgment that inevitably reflects the varying character of circumstance and the inexactness of moral and ethical judgment. It was the very variousness of casuist outcomes that led to its eventual discrediting in the eyes of modern universalism. Nevertheless, undertaken with reflection, seriousness, and prudence, casuistry is exactly what the Law Center needed to embrace in order to seriously attempt to enforce the ban against immoral internships (let's call them what they are). And, in the end, the Dean of the Law Center realized that he was not up to the task - as modern lawyers generally, as a rule, are not. So, he succumbed, as it could easily be predicted, to the ease and laziness of "universalist neutrality." While it cannot said that this outcome is surprising, it might be wondered why, in the first place, he went down a path which he might have realized would have made extraordinary demands upon his faculties of judgment and fortitude to make discriminations. I am tempted to conclude that his reversal does more damage to future prospects for the reinvigoration of ancient forms of judgment than if he hadn't stepped into those waters without the prudence he so clearly lacked.

1 comment:

Editor said...

"I am tempted to conclude that his reversal does more damage to future prospects for the reinvigoration of ancient forms of judgment than if he hadn't stepped into those waters without the prudence he so clearly lacked."

Ouch! Pretty hard on old Aleinikoff, there.