I note that this university was founded in 1888 by Most Rev. William O'Hara, the first Bishop of Scranton, and that one of your chief benefactors of late has been a Brennan, and thus the imposing presence of Brennan Hall here on the campus. Being a Brennan and my mother an O'Hara, I am delighted to be invited to the other side of the world to honour your new university president, Fr Kevin Quinn SJ, though any blood relationships to your founders or benefactors might need to be traced back to The Bog. Your motto Religio Mores Cultura grounds all our reflections upon ourselves and upon the world which we serve.
Down under, in the southern hemisphere it is spring. Last week I took a stroll past your US embassy in Canberra, the Australian national capital. Your embassy is a very imposing, fortressed Georgian red brick complex. To quote the embassy blurb: 'The observer is provided a glimpse of the charm and stately beauty of Colonial Williamsburg that was a fountainhead of liberty and freedom in the life of the new American republic.' On the fence of the embassy, the golden spring sunlight at dusk was illuminating the almost 3,000 small flags placed commemorating those who died in that tragic event of September 11 ten years ago, including more than 300 foreign nationals from more than 50 countries, 10 of whom were Australians. The sea of Stars and Stripes was dotted with flags of other nations whose nationals had perished alongside yours. America's greatest onshore tragedy has reverberated throughout the world. Here at Scranton, your links to September 11 are not just to New York City and the Capitol but also to Shanksville, 250 miles from here, where United Airlines Flight 93 came down. Ten years on, our societies are still wrestling with finding the balance between individual human rights and national security in this new global configuration. While espousing religious freedom, we know that some express their religious beliefs with contempt for others, and we face afresh the limits on religious freedom and freedom of conscience. The relationship between religion, culture and morals is freshly contested. Your friends from other lands hope and pray that the American mix of idealism and pragmatism will ensure that your ideals are strengthened through this reconfiguration, and your pragmatism rewarded with workable protections for all in the community. Last week, President Obama wrote to the Australian Prime Minister saying, 'In the decade since the attacks, we have had no more steadfast partner than Australia in our effort to defeat terrorists in Afghanistan, in Bali, in the Middle East and in South East Asia.' Like all friends, lets hope we can learn from each other even critically, and not just support each other uncritically as we confront the great moral quandaries and challenges of our Age.
I am one of those Jesuits from elsewhere in the world who has profited much from knowing American Jesuits and their collaborators both onshore and offshore. One of my very formative life experiences was spending a few months in a large refugee camp on the Thai Cambodian border in 1987. There were 100,000 Khmer in Site II camp. I went to look at the human rights situation there. On arrival, one of my housemates, American Mary Sutphin, warned me as I was about to drive off in a car: 'Be careful, it takes a while to get used to driving on the wrong side of the road.' I replied: 'Mary, I've never driven on any other side of the road.' Though we speak the same language, we come from very different backgrounds and life experiences. The authorities were not minded to admit a Jesuit lawyer into the camp for the purpose of scrutinising human rights violations. So I was assigned to teach a management course to the refugees. My mentor was an American Jesuit, Ron Anton. He armed me with an American management text book. Being one page ahead of the students with Management 101, I asked them to list those resources which were plentiful, relatively scarce, and rare — pointing out that management was largely focused on the best harnessing of relatively scarce resources. They were able to list only two plentiful resources in the camp — air and human beings. Everything else, including the water was rare and had to be rationed, and usually corruptly. There was nothing relatively scarce to manage. We had to revise the textbook fairly radically for local conditions.
Our Jesuit Refugee Service team was headed by a very charismatic French Jesuit Pierre Ceyrac. One day the shelling and exchange of fire came close to the camp and all us volunteers were called out. Having headed out of the camp, our convoy of NGO vehicles was lined up stationary on a remote Thai country road. In the opposite direction came Fr Pierre in his old beat up Toyota. He was smoking his French cigarettes, demanding entrance to the camp. The UN and Thai authorities were unwilling to admit him, but he insisted. He stayed the night. The rest of us did not get back inside the camp for some days. The Georgetown Medical Team members were furious with Fr Pierre — and for good reason. They said he could give no practical help in the camp if it were to be shelled. And if he were injured, there would be a risk that the international NGOs including the doctors would not be allowed back into the camp for weeks. With a French existential hunching of the shoulders, he surmised: 'What else could I do? I had to be with the women and children.' He had accompanied the refugees for ten years. He did not want to abandon them in their hour of need. His presence that night was almost sacramental. It transformed the quality of his presence to the refugees on all those other days when the shelling was far distant. Fr Pierre was right. So too was the Georgetown medical team.
I have been a regular visitor to Jesuit universities here in the US. One of things I enjoy most about you Americans is that you love conversation and public disputation about contested moral and ethical issues. You are relentless in your inquiry whether Fr Pierre was more right than the Georgetown Medical Team. You concede that there might be another side of the road on which to drive. You are open to adapting your management principles to previously unimagined real life situations. But in all these instances, it requires dialogue and the risk that your critics will think you are too fixated on 'process' and 'status' — two words that always give you away, whatever your accents. You often think the law must require an answer to political and moral quandaries.
I first met your new President Fr Kevin Quinn SJ at Georgetown Law Center where we were both mentored by Frs Bob Drinan SJ and Ladislas Orsy SJ, having been inspired by the writing of Fr John Courtney Murray SJ who wrote:
The spiritual order of society is founded on truth — on the true view of man, his dignity, his duties and rights, his freedoms and obligations. This order must be brought into being under fidelity to the precepts of justice, whose vindication is the primary function of the public power as well as the primary civic duty of the citizenry. This order needs to be animated and perfected by love; for civic unity cannot be achieved by justice and law alone; love is the ultimate force that sustains all humans living together. Finally, this order is to achieve increasingly more human conditions of social equality, without any impairment of freedom.
I think that quote of Murray could keep most of us going for a lifetime, or at least for three or four years study at Scranton. To me, Drinan was the epitome of the modern American Jesuit committed to the faith that does justice — passionately active on the international stage espousing human rights, testing the limits of church involvement in politics at home, and not afraid of conflict. Orsy had that refined European touch but with a fierce independence, turning church teaching about human rights and human dignity back on the Church itself, insisting on due process within the life of the Church community. In his latest book, Orsy proposes 'that in the quadrangle of every university a monument should be erected dedicated to the 'Anonymous Inquiring Students' who keep the teachers' minds fresh'. That might be the first building project for President Quinn!
Having known Fr Quinn at Georgetown and at Santa Clara, I am delighted to come as a visitor and to honour him at his inauguration as Scranton president by reflecting on human rights and the contemporary challenge offered by Fr Adolfo Nicolas SJ, Superior General of the Jesuits, who has urged Jesuit universities to promote depth of thought and imagination, re-discovering universality, and being places of learned ministry which mediate between faith and culture.
In Mexico last year many of us gathered from Jesuit universities around the world under the leadership and inspiration of the late Fr Paul Locatelli SJ to hear Fr Nicolas put before us three major challenges in response to what he calls the pervasive 'globalisation of superficiality' by which we can be 'overwhelmed with such a dizzying pluralism of choices and values and beliefs and visions of life, then one can so easily slip into the lazy superficiality of relativism or mere tolerance of others and their views, rather than engaging in the hard work of forming communities of dialogue in the search of truth and understanding'. Fr General told us:
First, in response to the globalization of superficiality, I suggest that we need to study the emerging cultural world of our students more deeply and find creative ways of promoting depth of thought and imagination, a depth that is transformative of the person. Second, in order to maximize the potentials of new possibilities of communication and cooperation, I urge the Jesuit universities to work towards operational international networks that will address important issues touching faith, justice, and ecology that challenge us across countries and continents. Finally, to counter the inequality of knowledge distribution, I encourage a search for creative ways of sharing the fruits of research with the excluded; and in response to the global spread of secularism and fundamentalism, I invite Jesuit universities to a renewed commitment to the Jesuit tradition of learned ministry which mediates between faith and culture.
So how can those of us inspired by the Jesuit tradition help to make human rights and religion friends, not foes? How can we form communities of dialogue in the search of truth and understanding about human rights and their limits, and about the place of religion in the State and in society? The trouble with much human rights discourse is that it is too readily reduced to assertions just about individual rights and non-discrimination. Human rights discourse needs to be more subtle when it comes to a conflict of rights situation or when the law is having to consider the public interest or the common good as well as individual liberties. In the public square, human rights discourse is usually conducted against a backdrop of presumed atheism and without much serious consideration for the rights of religious freedom and conscience.
The challenge to the contemporary Jesuit university is: providing a truly Catholic ambience where every intellectual idea about human rights can be examined from all sides, espousing human dignity in the light of the Church's tradition. Human rights and religion can only enhance each other when studied and lived in a vibrant Jesuit university committed to learning, service and research. Their friendship can be cultivated even in the midst of culture wars.
When Director of the Jesuit Refugee Service in the newly emerging nation of East Timor in 2001, I accompanied Bishop Belo, the Nobel Peace Prize winner, at the mass which was offered in thanks for the contribution by the departing Australian peacekeepers. At the end of the mass, Major General Peter Cosgrove, the head of the Australian Army, spoke. The burly Australian commander was accompanied by a translator who was a petite Timorese religious sister in her pure white habit, replete with veil. Before them was the usual international media scrum which accompanies such events in countries overrun by the UN and international NGOs. Cosgrove recalled his first visit to the cathedral three months earlier when he was so moved by the singing that he realised two things: the people of East Timor had not abandoned their God, and God had not abandoned the people of East Timor. His words surprised me, and I knew that this speech would not be reported back in Australia. Down under, we don't do religion in public this way. It was unimaginable that an Australian military leader would give such a speech back in Australia. If Cosgrove were a US General, we would expect it.
Many citizens wanting to contribute to the shaping of law, public policy, and conversation in the public square come to the task with their own comprehensive worldview. For some, that view is shaped not just by their culture and intellectual peers but also by their religious tradition and beliefs. Just because they do not often talk about such tradition and beliefs outside their own circle of family and friends does not mean that these tradition and beliefs are left at home once the individual steps into the public square. When launching his foundation on 'Faith and Globalisation', the retired British Prime Minister Tony Blair observed that his former press secretary, Alastair Campbell, was fond of saying, 'We don't do God.' Blair clarified that Campbell 'didn't mean that politicians shouldn't have faith, just that it was always a packet of trouble to talk about it.'
Whether or not our comprehensive worldview is shaped by religious influences, it informs the development of values which the individual expresses and lives out in their own specific cultural context. From those values, one is able to articulate principles which underpin informed and considered decision making about laws, public policies and public deliberation on contested social questions.
We can practise politics, that art of compromise in the public square where laws and policies are determined in relation to the allocation of scarce resources or in relation to conflicts where there is no clear resolution either in principle or by the exercise of legitimate authority. Public policy can include the allocation of preferences by the State extended to individuals who can avail themselves of state benefits while avoiding state burdens. Laws can include the dictates of the State enforceable against individuals who fail to comply voluntarily.
A year or so ago, to the disapproval of some of my family and friends I agreed to appear on television with the ubiquitous atheist Christopher Hitchens. As I said to family and friends at the time, it is part of my day job. Someone has to do it. Something crystallized for me that night when a young member of the television audience said:
Hello Comrades. Can we ever hope to live in a truly secular society when the religious maintain their ability to affect political discourse and decision making on issues such as voluntary euthanasia, same-sex unions, abortion and discrimination in employment?
The TV compere and Hitchens were clearly simpatico with this approach, as were many in the audience, but I was dumbstruck, wondering how can we ever hope to live in a truly democratic society when secularists maintain their demand that people with a religious perspective not be able to claim a right to engage in the public square agitating about laws on issues such as voluntary euthanasia, same-sex unions, abortion and discrimination in employment? We have just as much right as our secularist fellow citizens to contribute in the public square informed and animated by our worldview and religious tradition. We acknowledge that it would be prudent to put our case in terms comprehensible to those who do not share that worldview or religious tradition when we are wanting to win the support and acceptance of others, especially if we be in the minority. But there is no requirement of public life that we engage only on secularist terms. And we definitely insist on the protection of our rights including the right to religious freedom even if it not be a right highly prized by the secularists.
One of my US role models, Fr Bryan Hehir put it well when reflecting on John Courtney Murray's mode of engagement in the public square. Hehir said:
I am deeply interested in, but not yet convinced by, the argument that a more explicitly theological style of assertion, using religious symbols to interpret and adjudicate justice claims, is more appropriate to the questions faced by the Church in the United States today. To specify both my interest and my skepticism, it is necessary to distinguish the need for shaping 'the mind of the Church' (as a community and an institution) regarding social questions from the task of projecting the perspective of the Church into the societal debate about normative questions of social policy.
Hehir concluded:
In brief, faced with both greater interdependence and an expanding framework of human-rights claims, I do not think we can do better than the style of public discourse found in We Hold These Truths and Pacem in Terris.
The Oxford academic John Finnis in his new book of essays Religion and Public Reasons identifies three types of practical atheism: that there is no God, that God is unconcerned with human affairs, and that God is easily satisfied with human conduct or easily appeased or bought off. He reminds us that 'neither atheism nor radical agnosticism is entitled to be treated as the 'default' position in public reason, deliberation and decisions. Those who say or assume that there is a default position and that it is secular in those senses (atheism or agnosticism about atheism) owe us an argument that engages with and defeats the best arguments for divine causality.' Though it might be prudent and strategic to suggest that religious accommodationists carry the onus of persuasion in a public square with a secularist prejudice, might there not be a case for arguing that the representatives of the more populist, majoritarian mindset in the public square need to be more accommodating of religious views?
Professor Finnis, a Catholic but making a point equally applicable to all faith communities, says, 'Outside the Church, it is widely assumed and asserted that any proposition which the Catholic Church in fact proposes for acceptance is, by virtue of that fact, a 'religious' (not a philosophical, scientific, or rationally grounded and compelling proposition), and is a proposition which Catholics hold only as a matter of faith and therefore cannot be authentically willing to defend as a matter of natural reason.'
For Finnis, much of what John Rawls in his Political Liberalism describes as public reason can be equated with natural reason. Whereas Rawls would rely only on an overlapping consensus not wanting to press for objective reality of right and wrong, Finnis would contest that the only content of an overlapping consensus would be that which can be objectively known through natural reason.
In 2008 the Archbishop of Canterbury Rowan Williams gave an insightful address at the London School of Economics pointing out that rights and utility are the two concepts that resonate most readily in the public square today. But we need concepts to set limits on rights when they interfere with the common good or the public interest, or dare I say it, public morality — the concepts used by the UN when first formulating and limiting human rights 60 years ago. These concepts are no longer in vogue, at least under these titles. We also need concepts to set limits on utility when it interferes with the dignity of the most vulnerable and the liberty of the most despised in our community. Addressing the UN General Assembly to mark the anniversary of the UN Declaration of Human Rights (UNDHR), Pope Benedict XVI said, 'This document was the outcome of a convergence of different religious and cultural traditions, all of them motivated by the common desire to place the human person at the heart of institutions, laws and the workings of society, and to consider the human person essential for the world of culture, religion and science...(T)he universality, indivisibility and interdependence of human rights all serve as guarantees safeguarding human dignity.' It would be a serious mistake to view the UNDHR stipulation and limitation of rights just as a western Judaeo-Christian construct. Then again it would be hard to envisage its formulation without a deep drawing on the western Judaeo-Christian tradition engaged intelligently and respectfully with other traditions.
Mary Ann Glendon's A World Made New traces the remarkable contribution to that document by Eleanor Roosevelt and an international bevy of diplomats and academics whose backgrounds give the lie to the claim that any listing of human rights is a Western culturally biased catalogue of capitalist political aspirations. The Frenchman Rene Cassin, the Chilean Hernan Santa Cruz, the Christian Lebanese Adam Malik and the Chinese Confucian Peng-chun Chang were great contributors to this truly international undertaking. They consulted religious and philosophical greats such as Teilhard de Chardin and Mahatma Gandhi. Even Aldous Huxley made a contribution. It was the Jesuit palaeontologist Teilhard who counselled that the drafters should focus on 'man in society' rather than man as an individual.9 The drafters knew that any catalogue of rights would need to include words of limitation. The Canadian John Humphrey who was the Director of the UN secretariat servicing the drafting committee prepared a first draft of 48 articles. The Australian member of the drafting committee Colonel Hodgson wanted to know the draft's underlying philosophy. Humphrey refused to answer, replying 'that the draft was not based on any particular philosophy; it included rights recognised by various national constitutions and also a number of suggestions that had been made for an international bill of rights'. In his memoirs, Humphrey recounts: 'I wasn't going to tell him that insofar as it reflected the views of its author — who had in any event to remain anonymous — the draft attempted to combine humanitarian liberalism with social democracy.' It is fascinating to track the different ways in which the committee dealt with the delimitation of rights. Ultimately Article 29 provided:
Everyone has duties to the community which enables him freely to develop his personality.
In the exercise of his rights, everyone shall be subject only to such limitations as are necessary to secure due recognition and respect for the rights of others and the requirements of morality, public order and general welfare in a democratic society.
So here in the heart of the modern world's most espoused declaration of human rights came an acknowledgment that we all have duties and not just rights, duties to the community which, perhaps counter-intuitively, enable us to develop our personalities. At the Commission, it was said that 'morality' and 'public order' were 'particularly necessary for the French text, since in English, 'general welfare' included both morality and public order'. At one stage it was suggested that the term 'public order' was too broad, permitting the grossest breach of human rights by those committing arbitrary acts and crimes in the name of maintaining public order. The commission considered the substitution of 'security for all' for 'public order', similar to the 28th article of the American Declaration of the Rights and Duties of Man, but decided to stay with the more jurisprudentially certain European term 'public order'. But also we have the acknowledgment that individual rights might be limited not just for the preservation of public order and for the general welfare of persons in a democratic society, but also for morality — presumably to maintain, support, enhance or develop morality in a democratic society. Sixty years later, these words of limitation might not sit with us so readily, but they still have work to do.
Once we investigate much of the contemporary discussion about human rights, we find that often the intended recipients of rights do not include all human beings but only those with certain capacities or those who share sufficient common attributes with the decision makers. It is always at the edges that there is real work for human rights discourse to do. On one of my recent trips to Cambodia, I met a woman concerned for the well being of a handful of children who had both cerebral palsy and profound autism. There are more than enough needy children in Cambodia. It is not surprising that religious persons often have a keen eye for the neediest, not only espousing their rights but taking action for their well being and human flourishing. Speaking at the London School of Economics on 'Religious Faith and Human Rights', Rowan Williams, the Archbishop of Canterbury boldly and correctly asserted:
The question of foundations for the discourse of non-negotiable rights is not one that lends itself to simple resolution in secular terms; so it is not at all odd if diverse ways of framing this question in religious terms flourish so persistently. The uncomfortable truth is that a purely secular account of human rights is always going to be problematic if it attempts to establish a language of rights as a supreme and non-contestable governing concept in ethics.
No one should pretend that the discourse about universal ethics and inalienable rights has a firmer foundation than it actually has. Williams concluded his lecture with this observation:
As in other areas of political or social thinking, theology is one of those elements that continues to pose questions about the legitimacy of what is said and what is done in society, about the foundations of law itself. The secularist way may not have an answer and may not be convinced that the religious believer has an answer that can be generally accepted; but our discussion of social and political ethics will be a great deal poorer if we cannot acknowledge the force of the question.
Once we abandon any religious sense that the human person is created in the image and likeness of God and that God has commissioned even the powerful to act justly, love tenderly and walk humbly with their God, it may be very difficult to maintain a human rights commitment to the weakest and most despised in society. It may come down to the vote, moral sentiment or tribal affiliations. And that will not be enough to extend human rights universally. In the name of utility, the society spared religious influence will have one less impediment to limiting social inclusion to those like us, 'us' being the decision makers who determine which common characteristics render embodied persons eligible for human rights protection. Nicholas Wolterstorff says, 'Our moral subculture of rights is as frail as it is remarkable. If the secularisation thesis proves true, we must expect that that subculture will have been a brief shining episode in the odyssey of human beings on earth.'
In his 1789 Letter to the Quakers, George Washington said, 'I assure you very explicitly, that in my opinion the conscientious scruples of all men should be treated with great delicacy and tenderness: and it is my wish and desire, that the laws may always be as extensively accommodated to them, as a due regard for the protection and essential interests of the nation may justify and permit.'
Professor Martha Nussbaum's recent book Liberty of Conscience provides a rich textured treatment of the place of religion in the public square. In her characteristic writing mode, she shares personal anecdotes - this time her conversion from Christianity to Judaism on the occasion of marriage; she treats deftly the classics, and then delves into philosophical reflection on US jurisprudence. This time she reflects on the agonising dilemma of Sophocles' Antigone when the State in the person of her uncle Creon has announced that she may not bury her brother, killed attacking the city. Her religion dictates that she must bury her brother. She speaks of Creon's alarming rigidity: 'He has defined public policy in a way that favours the interests of most people in the city. In the process, however, he has imposed a tragic burden on one person. The great Athenian statesman Pericles boasted that fifth century democratic Athens did things better, refusing on principle to put people in such dreadful predicaments. Athens, he said, pursues the good of the city, but not by requiring its citizens to violate the 'unwritten laws' of their religions.'
She nicely posits the Lockean position of state neutrality whereby 'the state is free to regulate matters concerning property or health or safety even when they bear on religious organisations — so long as it does so impartially' against the more subtle treatment of the seventeenth century American Roger Williams, founder of Rhode Island, who espoused religious accommodation with the declaration, 'It is the will and command of God that (since the coming of his Sonne the Lord Jesus) a permission of the most paganish, Jewish, Turkish, or antichristian consciences and worships, bee granted to all men in all nations and countries'.
Nussbaum concedes that there may be a need for religion to bear some burdens 'if the peace and safety of the state are really at stake, or if there is some other extremely strong state interest. But it seems deeply wrong for the state to put citizens in such a tragic position needlessly, or in matters of less weight. And often matters lying behind laws of general applicability are not so weighty; sometimes they come down to a mere desire for homogeneity and an unexamined reluctance to delve into the details of a little known or unpopular religion'.
In his book Conscience and the Common Good, Robert K Vischer points out that we need to consider not just the relationship between the citizen and the state. We also need to make space in society for individuals of good conscience to form associations freely and to act on conscience individually and collectively without unwarranted interference by others who in good conscience act and live differently. We need consider only the law abiding Muslim community which wants to rely on some aspects of Sharia law when governing their own internal affairs or the Catholic hospital which reserves the right to provide what it regards as morally appropriate services while being in receipt of taxpayer funds for some service delivery. What do we say to the wedding photographer who does not wish to provide his services to same sex couples? Or to the church adoption agency which prefers to make children available for adoption to a family unit constituted by an adult male and an adult female? Or to the pharmacist who conscientiously objects to providing the morning after pill? As Vischer says:
At least from today's vantage point, it seems easier to have rooted for conscience in traditional cases, which tended to involve the courageous individual standing up to the oppressive and impersonal state. In the current wave of conflicts, not only is the cause of conscience often represented by individuals or organisations committed to moral claims that appear outdated and regressive, but, in addition, the claims are brought to bear against sympathy-inspiring individuals who seek equal treatment after longstanding marginalisation by society. In our rights-soaked legal culture, it is easy to choose sides against the state; less so against those battling discrimination.
I daresay many civil libertarians are little worried about the nuances of conscience because they share the view of Oxford academic Julian Savulescu that, for example, doctors' consciences should be left at the door in the name of patient autonomy. Doctors are simply there to provide a service as if they are automatons. In his recent article 'Conscientious objection in medicine', Savulescu commences with a literary reference — not to Sophocles' Antigone but to Shakespeare's Richard III. When Richard III roused from his dream he made his declaration:
Let not our babbling dreams affright our souls: conscience is but a word that cowards use, devised at first to keep the strong in awe: Our strong arms be our conscience; swords our law.
Savulescu quotes only the sentence: 'conscience is but a word that cowards use, devised at first to keep the strong in awe'. Here is the context. During Richard's dream the night before going into battle, he confronted the eleven ghosts of those he had callously murdered including the Ghost of Prince Edward, son to King Henry VI who proclaimed 'Let me sit heavy on thy soul to-morrow! Think, how thou stab'dst me in my prime of youth. At Tewksbury: despair, therefore, and die!' And the Ghost of King Henry VI who proclaimed 'When I was mortal, my anointed body by thee was punched full of deadly holes. Think on the Tower and me: despair, and die! Harry the Sixth bids thee despair, and die!'
Hardly the model for the discerning medical practitioner; and hardly the literary quote likely to evince sympathy for the primacy of conscience, a non-derogable human right. For those who want swords to be their law, there is every reason to view conscience as a word used only by cowards. It is those sorts of people who demand that conscience be left at the door. It is only by discarding conscience at the door that one can argue: 'Doctors who compromise the delivery of medical services to patients on conscience grounds must be punished through removal of licence to practise and other legal mechanisms'.
Martha Nussbaum's concluding chapter in Liberty of Conscience is titled with a question: 'Toward an Overlapping Consensus?' She makes the point that laws do matter as 'good laws and institutions set limits on people's ability to act on their intolerant and inegalitarian views'. She describes Roger Williams' challenge to the new colonies: 'that they find, and learn to inhabit, a shared moral space, without turning that space into a sectarian space that privileges some views over others'.
Nussbaum finds hope in John Rawls' notion of overlapping consensus whereby those holding different religious and secular comprehensive doctrines can live together on terms of equal respect 'agreeing to share a 'freestanding' ethical conception in the political realm, and agreeing, at the same time, to forgo the search for the dominance of any one comprehensive doctrine over the others'. Those who think that conscience is but a word cowards use are unlikely to forgo the search for dominance of their comprehensive doctrine over others. We still have much more work to do if we are to take seriously in law and policy Nussbaum's 'respect conscience principle' and her 'accommodation principle'. Our protection of human rights for all will be much enhanced if we are better able to provide 'protected space within which citizens may act as their conscience dictates' and if we can acknowledge that 'sometimes some people (usually members of religious minorities) should be exempted from generally applicable laws for reasons of conscience'.
Robert Drinan was a Jesuit priest and lawyer who served 10 years in Congress before the Vatican finally got its way, insisting that he resign. Drinan first met the Kennedy clan in 1964. He joined a group of leading moral theologians down at the Kennedy compound at Hyannis Port. His biographer Raymond Schroth says 'they hoped to come up with a stance on abortion acceptable to both Catholic teaching and the public at large'. A decade before Roe v Wade, this group proposed 'that the translation of a rigorously restrictive ethic of abortion into law was unlikely to be enforceable or achieve its positive goals without significant social evils.' The issue was to dog Drinan all his public life. Before going into public life, Drinan tried to clear a path about the legal and moral complexities of abortion. Writing in Theological Studies in 1970, he said:
This author has no easy solutions or ready options for the Catholic legislator, jurist, or spokesman on the question of abortion and the law. Perhaps the central issue was described in the reasoning of John Courtney Murray SJ, who, while not addressing himself to the question of abortion, wrote as follows about the criminal law: 'The moral aspirations of law are minimal. Law seeks to establish and maintain only that minimum of actualized morality that is necessary for the healthy functioning of the social order ... It enforces only what is minimally acceptable, and in this sense socially necessary ... Therefore the law, mindful of its nature, is required to be tolerant of many evils that morality condemns.'
On 4 June 1996, long after his departure from Congress Drinan decided to publish an opinion piece in the New York Times in support of President Bill Clinton's veto of the Partial Birth Abortion Ban Act. Church leaders went ballistic. At the insistence of the New England provincial of the Jesuits, he retracted almost a year later, stating, 'I withdraw those statements and any statement that could be understood to cast doubt on the church's firm condemnation of abortion — a doctrine that I today accept.'
A strong opponent of the Vietnam War, Drinan became interested in running for Congress. His great backer was Jewish businessman Jerome Grossman who knew Drinan to be a good friend of Israel. Grossman thought Drinan would deliver 'the Catholic vote' for the Democratic Party in Massachusetts. Drinan needed to convince his religious superiors in Rome. There has been a long running controversy whether Drinan did have approval to run from the then Superior General Pedro Arrupe. Arrupe properly left the matter for determination by the Jesuit superiors here in the US. Schroth says, 'It is reasonable to conclude ... that Arrupe did not want Drinan to run. In fact, Arrupe said publicly on several occasions that, although he strongly urged Jesuits to fight for justice, he did not think they should participate in partisan politics as candidates for office, that the party politician priest would not be free to be the priest-prophet.' Each of the five times he came up for re-election to Congress, Drinan had first to renegotiate the permission from his superiors. Time ran out in 1979 after Pope John Paul II had insisted that priests not serve in government in Nicaragua. Finally it was the pope who insisted that the Jesuit superiors instruct Drinan not to run for a sixth term. Drinan who had spent much time as Congressman agitating international human rights, having moved the first motion of impeachment against President Nixon for the unauthorised bombing of Cambodia on 31 July 1973, accepted the decision and said:
I am grateful to have had these opportunities as a moral architect. I can think of no other activities more worthy of the involvement of a priest and a Jesuit. I am proud and honoured to be a priest and a Jesuit. As a person of faith, I must believe there is work for me to do which somehow will be more important that the work I am required to leave.
Drinan confided to a young Jesuit that he was 'hurt, bitter and confused'. Looking back on his congressional career, even his friends would concede that he was not always the greatest political strategist. For example, the bombing of Cambodia was not the issue on which the American people would move to impeach their president. His long time friend, House majority leader Tip O'Neill said, 'Morally, Drinan had a good case. Publicly, he's always been proud that he was the first member of Congress to file for impeachment. But politically he damn near blew it.'
In 1995, I first met Robert Drinan in Johannesburg, South Africa. The US government had funded his trip there and he was giving a round of lectures on human rights. I then attended his international human rights course at Georgetown. After treating any topic, he would turn to me in a half mocking tone and ask, 'And how do you deal with this down under, in Australia?' Initially, I thought he was an American imperialist convinced that the United States always found the best way of addressing any human rights question. While the US had the answers, the rest of us were playing catch up. But over the course of the semester, I realised that Drinan who had travelled the globe extensively had no preconceived notion about the best way. Much depended on the local circumstances. There were principles to espouse and to act upon in the search for any solution.
Senator Edward Kennedy and House Speaker Nancy Pelosi were the chief political mourners at his funeral. The preacher Fr John Langan SJ observed:
Any society built on the practice of rights is not so sweetly transcendent as the holy mountain of feasting and joy which Isaiah summons up for us; it is not so intimately and delicately responsive as the virtue of charity or agape which St Paul commends to us. But it is essential to the realisation of the common good in a world which is marked by enormous human diversity and intermittently intense social conflict. It is a reality which protects those of us who are neither beasts nor angels from our own worst impulses and from the harms which others would do to us. It is not the realm of the best but of the imperfect good and the necessary.
In her eulogy Nancy Pelosi said; 'Father Drinan lived and legislated according to the expansive view of the gospel, believing that it had something to teach about the whole range of public policy, from war and peace to poverty and justice to how we treat our children and parents. It was because of his faith that he was one of our greatest champions of human rights.'
Schroth asks: 'To what degree had Drinan answered the question: Can a priest successfully be an elected politician? Drinan would say yes. The pope said no. Jerome Grossman... says today that the answer is no — the roles are basically incompatible. Except for Drinan. He was a special case, chosen for a special mission — to stop the Vietnam War. He did a great job, said Grossman, but he should be the last of his kind.' This Australian Jesuit lawyer agrees. I am one Jesuit lawyer who learnt much from Bob Drinan in his strivings to bridge the gap between idealism and pragmatism — enhancing human rights and respecting human dignity in the midst of cultural, philosophical and religious diversity. He made mistakes; we all do. He was hurt and scarred in the public square; almost anyone who ventures in there is. He maintained a simple faith and a profound pride in the Jesuits; let's hope we can too.
In May this year, we Australian Catholics were treated to the early retirement of one of our most pastoral bishops, William Morris. Overseeing a large country diocese with very few and ageing priests, he knew he needed to provide for the day when there would be not enough priests to celebrate mass. He had written to the diocese indicating that several responses 'have been discussed internationally, nationally and locally' including the ordination of women and the recognition of other churches' orders. He invited discussion while remaining 'committed to actively promoting vocations to the current celibate male priesthood and open to inviting priests from overseas'. When quizzed by the media, he said he 'would ordain single or married women and married men if church policy changed'. The Vatican sent a Visitator who complied a confidential report which has never been shown to the bishop or his consultors. After visitation, all but three priests of the diocese wrote to Rome in support of Morris's pastoral leadership. So too did all the Pastoral Leaders and all members of the Diocesan Pastoral Council.
One of the unfortunate aspects of this affair is that no church official is in a position to inform the people of God about the due process which was followed, the case against the bishop, and the justice of the decisions made by curial officials leading to the recommendation made to the Pope that Morris be relieved of his office as bishop. Anyone questioning the process or decision is placed in the invidious position of being seen as one insufficiently trustful of the papacy. One can be a great defender and advocate for the papacy and still be a strong advocate for due process especially when administrative or judicial type functions by curial officials may result in a pastor being relieved his office without satisfactory explanation to his flock.
In his recent commentary on the Regulations for the Examination of Doctrines, Ladislas Orsy says:
The virtue of justice, as integrated with faith, hope and love among Christians, is a powerful factor in forging unity in the community. For this reason, it is never enough to do justice, it must be done publicly. The people should see that justice is done.
Of course, prudence and discretion may require some confidentiality. When it is needed, so be it. But when there are no greater values in jeopardy, openness should be the rule. A trial is never about one single individual: the accused is a member of a community of believers. Whether he is guilty or not, the community nurtured him and suffers with him. It is fair, therefore, that the community should be informed in a prudent manner.'
Vatican II's dogmatic constitution on the Church, Lumen Gentium, describes the Church as the people of God. Many of the people of God anxious to respect the human dignity of all and to ensure that the Church be as perfect a human institution as possible now think that natural justice and due process should be followed within the Church, while always maintaining the hierarchical nature of the Church and the papal primacy. Of course, there are some who question the papal primacy or the need for an ordained hierarchy, but they are not our concern here. The question for the contemporary Catholic is: can we assent to the teaching of Lumen Gentium without having a commitment to due process, natural justice and transparency in Church processes and structures thereby maximizing the prospect that the exercise of hierarchical power and papal primacy will be for the good of the people of God, rather than a corrosive influence on the faith and trust of the people of God?
It is no longer appropriate for Church hierarchs to claim that notions of transparency, due process and natural justice are antithetical to the hierarchical nature of the Church or to the primacy of the papacy. The primacy is not to be exercised arbitrarily or capriciously; and defenders of the Church will want to go to great lengths to ensure that the papal office is not perceived to be exercised without sufficient regard to the circumstances and evidence of a case.
The laity, the religious, the presbyterate and the bishops in some nations are sure to have a heightened 21st century notion of justice, transparency, and due process. This heightened notion is a gift for the contemporary Church. It is one of the works of the Spirit. The Church of the 21st century should be the exemplar of due process, natural justice and transparency — purifying, strengthening, elevating and ennobling these riches and customs of contemporary Western societies which are the homes and social constructs for many of the faithful, including those most directly impacted by the decision to force the early retirement of Bishop Morris.
While there can be little useful reflection and critique of the final decision of Pope Benedict to force the early retirement of Bishop Morris, there is plenty of scope to review the processes and the evidence leading to the submission of the brief for dismissal provided by curial officials to the Holy Father. Those officials acted primarily on written complaints by a small minority of the faithful and of the presbyterate of the diocese, the report of the Visitator, and the responses provided by Bishop Morris who was unable to cite the complaints or the report. There has been a resulting confusion about the pastoral effectiveness of Bishop Morris. His fellow bishops have been happy to attest publicly to his pastoral gifts. They said:
We appreciate that Bishop Morris' human qualities were never in question; nor is there any doubt about the contribution he has made to the life of the Church in (his diocese) and beyond. The Pope's decision was not a denial of the personal and pastoral gifts that Bishop Morris has brought to the episcopal ministry. Rather, it was judged that there were problems of doctrine and discipline, and we regret that these could not be resolved. We are hopeful that Bishop Morris will continue to serve the Church in other ways in the years ahead.
And yet Bishop Morris was led to believe that the visitator's report and the anonymous complaints alleged 'flawed' and 'defective' pastoral leadership.
Due to a lack of due process, natural justice and transparency, the papacy has been harmed, the standing of the Vatican curia has been harmed, the public standing of the Australian Catholic Bishops Conference further undermined, and the confidence of the Australian Church in the public square compromised. The Church cannot credibly proclaim a message of social justice in a pluralist democracy when its own processes fall so demonstrably short of ordinary community standards of justice.
In countries like the United States and Australia, the church's voice in the public square risks becoming a clashing cymbal. Our fellow citizens are more interested in our actions and structures for justice, rather than our disembodied utterances. This is where a university like Scranton has an abiding mission and task. John Courtney Murray says:
The public consensus is the property of the studium. This is the institution that, together with the Church, stood between the People and the Princes, the men of power who bore the responsibility of using their power in the high service of justice and freedom of the people. It is the function of the University, which has care both for the princes and the people, to see that this duty is wisely performed, chiefly by defining what justice is, and what the freedom of the people requires in changing circumstances. The University assembles these definitions and requirements into the public consensus, whereby the prince's use of his power in respect of the people may be judged, directed and corrected.'
Who are the persons of reason to whom both the people and the princes might look for judgment? With his characteristic lack of gender inclusiveness, Murray a man of his times answers with a kernel of eternal truth wrapped in the language of the day: 'all one can say is that they are the men who have a 'care', but who are not 'interested parties'.'
The great Sinologist Simon Leys (Pierre Rykmans) when contemplating Newman's Idea of a University, once called to mind Gustave Flaubert when he was writing to his friend Ivan Turgenev: 'I have always tried to live in an ivory tower; but a tide of shit is beating at its walls, threatening to undermine it.' The tide of which he speaks is the torrent of abuse one receives from outside the university about its elitist character as an ivory tower and its non-utilitarian output. Leys thinks we should be unapologetic about our place in the ivory tower of learning:
Democracy is the only acceptable political system; yet it pertains to politics exclusively, and has no application in any other domain. When applied anywhere else, it is death — for truth is not democratic, intelligence and talent are not democratic, nor is beauty, nor love — nor God's grace. A truly democratic education is an education that equips people intellectually to defend and promote democracy within the political world; but in its own field, education must be ruthlessly aristocratic and high-brow, shamelessly geared towards excellence.
He invokes Zhuang Zi, a Daoist philosopher of the third century BC 'and one of the most profound minds of all time': 'People all know the usefulness of what is useful, but they do not know the usefulness of the useless.' Leys taught Chinese studies to our last Australian Prime Minister Kevin Rudd when he was an undergraduate. Rudd recalls that Leys stopped midsentence in class one day and asked, 'What are we doing at university?' Having heard the utilitarian responses of his students, Leys said simply, 'We are doing only two things: learning to think, and then thinking'. May the combination of religio, mores et cultura sustain you all here at Scranton during the forthcoming Quinn era and may this campus be a privileged place where religion and human rights walk hand in hand for the well being of persons and societies here, faraway downunder, and all places in between. Fr Kevin Quinn, I invite you to take on your mantle of university presidency recalling the words of your beloved, late President at Santa Clara, Paul Locatelli SJ: 'We must challenge the illusion of privilege and isolated individualism. We must bind ourselves emotionally and functionally to others and to the earth.' Let this be a campus where religion and human rights have nothing to fear from each other, each being indispensible to truth and the dignity of all.
Fr Frank Brennan SJ is professor of law at the Public Policy Institute, Australian Catholic University and adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University. Text is from Fr Brennan's Scranton University Inauguration Lecture, 13 September 2011.