Wrapping up Child Allowance & Abortion

Today, you’re the debate judge! Again the NRO (very graciously, and without the usual acrimony that accompanies these conversations) has responded to my blog in defense of reducing abortion by offering a universal child allowance. Here are the points that remain unaddressed. If you’re a debatey type, you can extend these arguments right across your flow as they say:

I. All the harms attached to a child allowance are attached to a child tax credit. You can’t oppose one and not the other by this metric of harms. We must conclude that the NRO opposes the reformocon child tax credit.

II. Many of the harms attached to a child allowance are also attached to private charity for mothers. The NRO concedes this:

First in both of her responses to me, Bruenig states that by providing assistance to pregnant women, pregnancy resource centers are, in effect, increasing the population of single mothers and undermining norms against pre-marital sex. To put it another way, if single mothers are carrying their children to term because of either a child allowance or because of assistance from a pregnancy resource center, the effect is the same. I see Bruenig’s point, but I disagree with her. When one receives assistance from a charity there is a greater norm of reciprocity and less of a chance of repeat behavior. That is why I was concerned about a child allowance providing additional income for each additional child that was born.

In other words, private charity very well might have identical impacts, meaning that it would be best not to support it. If it even caused a marginal increase, which by this author’s logic it would, it has caused an incredible moral harm. Therefore we must, by this author’s thought, view a child tax credit and child allowance as extreme immorality-increasers, and private charity as mild immorality-increasers. But why would we allow any immorality increase? Never has a calculus been delivered by which we can measure what amount of immorality is acceptable to reduce what amount of abortions. You, the judge, should therefore acknowledge that the NRO’s own plan (private charity) will result in their own harms.

More intriguing here is that the argument has changed from its first iteration. Originally we were to oppose a child allowance because it would create more single moms and therefore normalize pre-marital sex. But now the argument has shifted to repeat pregnancies–surely a single mom of one is no less harmful on normalization grounds than a single mom of two or three. The singleness is the problem, not the number of kids, or so the NRO argument would logically proceed. So I am not sure the repeat pregnancies issue relates to the original point whatsoever; it appears to rather be a new and discrete point, the significance of which is unclear.


III. A child allowance is a step toward a more humane policy on abortion. 61% of women who seek abortions have other children. By throwing women in jail for seeking abortion, we would be breaking up families; this is not pro-life. The NRO never shares their plan for how to reduce abortion; by their own lights, private charity would probably increase it to a degree. They only say this:

Bruenig concludes her most recent post by saying that “It is worth it to me to reduce abortion on the margins.” I agree. I would certainly support a policy that would reduce abortion at the margins. In fact, I would like to go beyond that and see all unborn children legally protected. I just disagree that a child allowance would help pro-lifers achieve that goal.

Tantalizing, and we are in agreement here! But this is not a policy plan. You, the judge, must therefore presume what policy lurks beneath this shell argument. Mine is on the table.

IV. Nudge theory makes my case, as I wrote in my original TAC piece. This author says:

However, both the 2005 Guttmacher study and the 2013 study that appeared in BMC Women’s Health allowed women to offer multiple reasons as to why they sought an abortion. Both studies did find that economic pressure certainly played a role in a significant percentage of women’s decisions to obtain an abortion. That said, since many women cited multiple reasons for having an abortion, both studies are less clear about how often economic pressures were the most important factor. Economics may not play as large a role as Bruenig surmises.

If we can knock out the most common reason, being too poor, we can also impact a variety of other cited reasons: lacking shelter, healthcare, unstable relationships, career worries, etc. We can also probably even push on relationship instability with regard to marriage, as I have written previously. What nudge theory teaches is that behavior is usually multivalent and that small nudges can push folks in directions opposite their original course. One famous example from the UK involves reducing suicide by making bottles of pills slightly smaller; we could very likely do the same for at least some abortions by making the financial burden of childbearing less extreme. This has always been my argument: that a child allowance would reduce abortion on the margins. It remains my argument. I hope you have found it at least a little promising, and that you’ve enjoyed this great debate!

Why Think on Legal Realism?

Last week I talked quite a lot about Christian legal realism and the Patristic view of private property ownership. If you hung in there with that ping pong match, much appreciated! And if not this post will still answer the question: why go on and on about the Patristic wisdom on property ownership?

Firstly, as Brad Littlejohn, wise man and editor of Political Theology Today, confirmed after last week’s debate, the Christian legal realist view of private property ownership is not a quirk of patristic thought. He is definitely the person to listen to on Aquinas, with whom I’ve done comparatively little. Brad locates the Christian legal realist impulse very distinctly in Aquinas, quoting from John Finnis:

“The moral or juridical relationships to such an entity that we call property rights are relationships to other people. They are matters of interpersonal justice. Arguments for founding property rights on alleged ‘metaphysical’ relationships between persons and the things with which they have ‘mixed their labour’, or to which craftsmen have ‘extended their personality’, are foreign to Aquinas.”

Brad concludes:

“Thus, to Pegobry’s insistent question as to whether, according to Ms. Bruenig, “under correct Christian ethics, all property is contingent and rights of property . . .  have only instrumental and not intrinsic value,” it must be answered, in Thomistic terms at least, “Yes, instrumental to the service of the common use of humankind.”  Indeed, it is difficult to conceive, within such a framework, of just what sort of “intrinsic value” such rights could have.”

In his longer meditation on his blog as to the broader implications of the motives of this debate, Brad points out that there are very real reasons to express concern with the tyranny of the state, the wrong use of property, and the question of desert. I agree with Brad on all these counts, and it’s why I want to expand here upon what the use of Christian legal realism is, in my thinking.

In my opinion, it is not Christian legal realism that occludes questions of orthodox approaches to state power, desert, and the right use of property. It is rather a non-Christian liberal ethic that superimposes itself onto Christian discourse and claims that all of these questions have already been spoken for. This liberal ethic re-imagines Christian attitudes to property in the image of its own non-Christian framework, and leads to an understanding of the Christian view of property that comes to be seen as ‘common-sensical’ even though it is a secular innovation on historical Christian thought. In this weird inverted world, historical Christian understandings of property — that is, the ones that belong to our long, rich tradition — are then viewed as quaint and outmoded, while the liberal approach to property, Christian in name only, casts itself as the obvious and dominant one. It is at this point that Christianity can be leveraged to support a liberal politics that is antithetical to its own mission and ethics.

And make no mistake: this is what has happened. There’s a reason Brad and I appear to be taking oddball positions here. The reason is that now, after many years of liberal imposition onto Christian thought, Christians now speak of property in the language of ‘rights.’ As Joan Lockwood O’Donovan points out, this wasn’t always so:

The concept of subjective rights, or rights ascribable to individuals and groups, has entered contemporary political and legal currency primarily through the liberal contractarian tradition. Consequently, the meanings of the term ‘rights’ cannot be properly ascertained in detachment from this theoretical context. For these meanings are embedded in a constellation of political-legal, philosophical and theological concepts with a complex history. Thus, to appraise the contemporary vocabulary of ‘rights’ is to appraise the dynamic theoretical complex that has given rise to it. If such an appraisal seeks its standard of judgement in the Bible, then it is bound to proceed theologically…

A close analysis of the history of the concept of subjective rights reveals a progressive antagonism between the older Christian tradition of political right and the newer voluntarist, individualist and subjectivist orientation. Whereas in the older tradition, God’s right established a matrix of divine, natural and human laws or objective obligations that constituted the ordering justice of political community, in the newer tradition God’s right established discrete rights, possessed by individuals originally and by communities derivatively, that determined civil order and justice

Not until the seventeenth and eighteenth centuries did the subjective rights of individuals supersede the objective right of divinely revealed and natural laws as the primary or exclusive basis of political authority, justice and law. These centuries dominated the transformation of the Western Christian tradition of natural law and natural right into a tradition of natural rights.

Emphasis mine. What O’Donovan is up to here, in her own words, is to “delineate the inherited theoretical content of the Western ‘rights’ tradition,” so that her readers can determine for themselves (not without later help from her husband Oliver) whether or not what we end up meaning when we talk about rights — including property rights — is consonant with Christian ethics. She points out that, through the adoption and use of the liberal language of rights, the content of those rights has come to be the main determining factor of political justice and law. In other words, where the Church fathers would have firstly considered the corporate human right to ultimate goods to try to understand the revealed matrix of obligations and duties that they would then infer to define political order, we now instead look to the content of ‘rights.’

So, okay — the idea of rights now dominates Christian political discourse in many venues (especially the popular); big deal, right? Maybe the liberal language of rights is a positive innovation that doesn’t interfere with underlying Christian commitments, one imagines. But the problem is that the language of rights is not empty (by this I mean neutral) rhetoric, but rather a piece of an overall liberal moral order; this is the ‘inherited content’ O’Donovan refers to. Using the language of rights, at least in the realm of property (where my concentration is) but likely in others as well, is therefore to import not only secular ideas into Christian thought, but also to import non-Christian morality and, by extension, to invite non-Christian ethics. Charles Taylor explains:

Now the modern idea of order, in contradistinction to the mediaeval Christian ideal, was seen from the beginning as for the here-and-now. But it definitely migrates along a path, running from the more hermeneutic to the more prescriptive. As used in its original niche by thinkers like Grotius and Pufendorf, it offered an interpretation of what must underlie established governments; grounded on a supposed founding contract, these enjoyed unquestioned legitimacy. Natural Law theory at its origin was a hermeneutic of legitimation.

But already with Locke, the political theory can justify revolution, indeed, make this morally imperative in certain circumstances; while at the same time, other general features of the human moral predicament provide a hermeneutic of legitimacy in relation to, for instance, property. Later on down the line, this notion of order will be woven into ‘redactions’ demanding even more ‘revolutionary’ changes, including relations of property, as reflected in influential theories, such as those of Rousseau and Marx, for instance.

Thus while moving from one niche to many, and migrating from theory into political imaginary, the modern idea of order also travels on a third axis, and the discourses it generates are strung out along the path from the hermeneutic to the prescriptive. In the process it comes to be intricated with a wide range of ethical concepts, but the resulting amalgams have in common that they make essential use of this understanding of political and moral order which descends from modern Natural Law theory.

Here ‘Natural Law’ refers to the emergent liberal doctrines of the seventeenth and eighteenth centuries, of which Locke is a major author. The point Taylor makes here is that what begins as descriptive — and what contemporary Christians might still feel tempted to view as simply descriptive, such as ‘property rights’ — actually becomes prescriptive over time, that is, comes to dictate ethics rather than describe political or social realities. Nowadays, when we talk about property rights, we do so in the way liberal theorists would have us do. We refer to contractarian and individualist terms, we view rights themselves as subjective (that is, tied to the subject, the person, not strictly related to the right use of creation and revealed obligations/duties) and we see the state as existing more or less to harmonize those conflicting rights claims. But this anthropology (that the subject or individual precedes in fullest terms society and corporate life, for instance) is not Christian, and the ethics that follow — for instance, that my right to property ownership should be politically protected while my obligations to others should have no political character — are not particularly grounded in the Christian tradition, either.

The result of all this is that the status quo in relation to property — that is, the way property now exists in our collective political imagination, as the claim of an intrinsically valuable right — conflicts essentially with a Christian construal. In practice, it means there are also contradictions in the Christian ethics of property use and ownership and the liberal ethics of the same. But because the liberal language of ‘property rights’ has insinuated itself so tightly into Christian discourse, it can be hard for Christians to see those contradictions, much less begin to imagine how to politically act on a different understanding of property. And so Christians wind up batted back and forth between the same old political options, none of them very appealing, all of them premised on the same flawed anthropology, and thus tending toward the same flawed practices.

So my hope with the legal realism stuff is to help to articulate an approach to property that is tenable in modern politics without submitting hook, line, and sinker to the liberal language of rights that has superimposed itself onto Christian discourse. I want to do this because I think it can help Christians act politically without the usual limitations that bracket the expression of Christian ethics in politics, e.g. the limitations that arise from uncritical acceptance of, say, the intrinsic good of property ownership via rights claims. And I think the legal realism discussion can help illuminate the degree to which the structures liberal political order so highly venerates are in fact within our control and subject to our moral judgment, not constitutive of it. We should therefore not be judged by the degree to which we promote, protect, or politically enshrine the alleged ‘intrinsic value’ in private property ownership, but should rather judge the political enshrinement of private property ownership by the degree to which it cooperates with a Christian anthropology and understanding of divine will for creation.

Or as Paul Bourget wrote, “one must live as one thinks, under pain of sooner or later ending up thinking as one has lived.” I think the legal realism point has the potential to cleanly and clearly illuminate some realities of property that are otherwise obscured, and to open up helpful conversations in the realm of Christian political engagement. To me, this is a helpful step toward freeing Christians and Christian thought up from liberal ethics of property that threaten to tamper with and occlude orthodox understandings of the divine will for humanity and creation.

**Quick notes: no, this doesn’t mean there’s nothing of value in the liberal rights tradition. No, this doesn’t mean that if the liberal rights-based theory of property isn’t consonant with Christian thought, then its opposite (usually conceived as communism) must be necessary.

Reducing Abortion on the Margins Redux

In my last post in response to the NRO’s critique of my American Conservative piece on using a child allowance to reduce abortions, I argued that a child allowance would be a humane response to the available data on poverty and abortion. I used polling data to argue that marriage is not less valued among the poor, but rather that it is less tenable. I also argued that Nordic countries like Sweden have seen their abortion rates rise as they have liberalized their economy and increased their poverty and child poverty rates. Lastly I argued that since the child allowance wouldn’t be means-tested but rather universal, it would not come with the harms associated with a means-tested program, and would instead host only harms identical (with respect to social outcomes re: single parenting and marriage) that a child tax credit would.

The NRO has responded again, now to my response. It is again a very kind and thoughtful response! I appreciate the calm, considered tenor of this debate, because as the author points out, arguments on this topic usually spiral into unhappiness quickly. The piece goes on:

I wonder if women would receive an increase in their allowance for each additional child they had. This would likely result in an increased number of children raised by single mothers and in a generally more promiscuous society.

Yes: the allowance would come per child. Countries with a child allowance (United Kingdom, various Scandinavian) have shown no increase in birthrates. Stable countries usually have lower birthrates, and universal social insurance programs are stabilizers. The child allowance would never be enough for a person to profit off of it. Therefore I doubt most women would go through the harm to work and relationships to intentionally increase the number of kids they had. On the other hand, I would rather a woman have a number of children than abort them. This is a bullet I’m willing to bite; all pro-lifers should be willing to bite it as well. We can’t be a culture that welcomes life only for well-off families.

The piece goes on:

I have additional concerns that there will be a crowding-out effect. Often when the government takes a more active role in solving a particular problem, private endeavors recede. I would hate to see pregnancy resource centers lose out on donations because the government is taking on a more active role in caring for mothers. Such centers attempt to alleviate the economic pressures of women facing crisis pregnancies.

I worry that this is not consistent with the piece’s internal logic. If extra resources cause single parenting and therefore encourage irresponsible sexuality, they do so whether they come from the state or the private sector. Dollars from a pregnancy center are no less spendable than dollars from the state. Therefore if you worry that a child allowance would encourage women to have promiscuous reproductive sex, then the same worry should extend to crisis pregnancy centers. That is, unless you intend crisis pregnancy centers would necessarily function less effectively than a child allowance, meaning that they have an element of ‘planned obsolescence.’ In that case, they are not quite as pro-life as a child allowance program would be, which is very curious given their mission! I am not sure I would mourn the loss of organizations that intend not to help very much.

On the other hand, if they do intend to help women give birth and raise kids, then they also bring the harms associated with any other program that would help women give birth and raise kids, like a child tax credit or child allowance. I suspect these harms, which relate to sexual mores, would not actually follow. (In fact, I imagine they precede as causal factors, not post-hoc outcomes.) But even if they did, they would be common to any program granting women greater resources for caring for children. Again, as pro-lifers, this is a potential we have to cope with. Carrying on:

Additionally, even though the U.S. economy was in poor shape during the late 2000s, the abortion numbers did not increase the way some had anticipated. Others have argued that the abortion-rate decline stalled, but it certainly did not increase during this time. Maybe economic pressures are responsible for fewer abortions than Bruenig thinks.

I can only go by the available data, which shows poor women have the greatest number of abortions, and that a majority of them give their financial unpreparedness as a reason for seeking abortion. I cannot estimate alternative reasons other than those they give. But I titled my last post ‘reducing abortion at the margins’ for a reason: I acknowledge a child allowance would not eliminate abortion. It would likely reduce it at the margins, which I still consider a win. It also has huge and obvious benefits for women who are poor and never considered abortion to begin with, which is the massive underwater iceberg bulwark of support for such a program. The abortion reduction would be, by the lights of most, a fringe benefit.

Which is to say, most people who support programs that give parents more money to raise kids aren’t as interested in the abortion reducing potential of such programs as I am. So the widespread support for, say, the reformocon child tax credit is unlinked with abortion generally, but as I pointed out above, would still host all the same harms the NRO is concerned with in terms of enabling moms to raise kids without dads, potentially proliferating the number of single mothers and thus impacting sex culture, and so forth. My question there remains very much open: what is the difference between a CPC, CTC, and child allowance? Why would the former help but the latter harm when they’re all doing the exact same thing, that is, ensuring moms money for taking care of kids?

I think that might remain a mystery. It appears rather to me that we’re looking at a disagreement over the perceived nature of the program as a ‘welfare’ program, which can elicit some conservative discomfort compared to identical private sector efforts or tax-based solutions with identical outcomes. In that case, please let me repeat: the child allowance would not be a welfare program proper, in the sense that it would not be means-tested like SNAP or TANF. It would be a universal program for all parents. Maybe that will help some warm up to it and maybe it won’t, but I still felt it was worth emphasizing.

It is worth it to me to reduce abortion on the margins. To me, this is a sure, stable way to do that which brings a host of benefits unrelated to abortion as well. I have yet to see a proposal that would function in the same way without bearing the same harms. Abortion is not an easy, monolithic thing to approach; it’s a varied and mosaic issue that will likely have to be chipped away at through many different means. But based on what data is available on women who have abortions and their reasons, I do think a child allowance would be a stable, reliable, robust response to the problems poor parents face, and I do not see a reason to imagine its unintended consequences would differ in any significant way from identical private or tax-based responses.

Reducing Abortion at the Margins

A little while ago I wrote a piece for The American Conservative arguing that, based on what women who have abortions tell us about their reasons and what their income tells us about their means, it’s likely that a child allowance program would reduce the number of abortions taking place. This approach wasn’t so popular with people who tend to be opposed to welfare in general, though I was happy to see quite a lot of self-identified conservatives express some warmth to the idea. But I still found some of the critiques credible, and wanted to address one in particular here. It’s from the National Review Online, very courteous, and consists of two basic arguments:

However, high welfare benefits might also either encourage or enable more single-parent families, and a large number single parent families would further reduce the stigma toward premarital or extramarital sex. This might create a more permissive sexual culture, and one where abortions would happen more often.

That critique I’ll address as argument #1. Here’s argument #2:

Most importantly, there is not one peer-reviewed study which shows that greater spending on welfare or other social programs reduces the abortion rate. Some analysts point to lower abortion rates in European countries which tend to have more generous public benefits for low-income earners. However, the abortion rate in many of these countries is rising, while the abortion rate in the United States has been falling. Pro-lifers should certainly advertise the excellent work pregnancy resource centers are doing in meeting the needs of many women facing unplanned pregnancies. That said, expanding welfare benefits is a strategy that probably will be less successful than advertised.

Let me get this out of the way: this program is no different than taking Mike Lee’s reformocon child tax credit, making it refundable, and making it monthly rather than annual. All harms that would come with a refundable tax credit come with this; there is no distinction there. Similarly, as I’ll expand on below, this is a universal program, not a means-tested welfare program just for poor people.

Argument #1 presumes two outcomes: firstly, that the poor women who have abortions would elect not to get married if they had greater means from welfare; secondly, that the proliferation of single-parent families leads to to tolerance of pre-marital and/or extra-marital sex. I’ll treat each of these in turn.

When we talk about welfare interfering with marriage, we are usually talking about means-tested programs that terminate when a couple combines resources. This is the only condition in which a welfare program could actively discourage marriage: if the couple, by getting married, would be facing a net reduction in income. (A phenomenon sometimes called “hustling backwards”, or the paradox by which a person winds up worse off due to small gains in life situation/income — it’s a failure of the welfare system’s structure.) But the program I suggest is a universal program. It would not be means-tested. If anything, a man would be tempted to marry the woman because she would have by nature of the child’s custody a kind of guaranteed income. Since the child allowance is cash and not in-kind benefits (like food or clothes) a mother would be using it very wisely to, say, pay rent, and a man who might otherwise be on the fence about marriage would likely see a decent incentive for sticking around, i.e. stability.

Romantic? Not really, but with policy we can’t inculcate goodness into people. All we can hope to do is encourage or discourage behaviors, and the child allowance would not discourage marriage. This brings me to the second portion of his argument: that more single-parent families would encourage pre-marital and/or extra-marital sex. I’m not sure this would be true. If we look at polls among the poor, we see that a nearly identical (within the margin of error) low percentage of people say they never want to get married. This is true of all income brackets. 8% of poor, 8% of mid-income, and 6% of high-income people say they never want to get married, with a +/- 3 pt margin of error. The rest are either previously married, already married, or want to get married. But the wealthiest have the biggest chunk of already-married people at 51%; this is because, as many studies have shown, poverty is very hard on marriage.

Thus: even though pre-marital sex is hardly looked askance at these days, most people still want to get married. It’s just that there are stressors on the lowest income bracket that make the prospect challenging, which is why marriage promotion programs have not been beneficial to poor women. Instability and stress make marriage an unattractive option for poor women and poor men. My guess would be that a child allowance would make marriage more attractive precisely because it would relieve poverty and provide some stability. But even if it didn’t encourage marriage, it does not appear it could discourage it.

A more permissive sex culture? I doubt it — as I pointed out, the reality of extra-marital and pre-marital sex is something we now live with, and a state endorsing strong family values by offering a child allowance doesn’t appear to be the sort of thing that would induce a whole lot of libertinism. But even if it would, I’ll also posit that a fully refundable child tax credit, the darling of many reformocons, would do the same thing. (Some reformocons, to be fair, would keep the credit nonrefundable; others believe it already is refundable and like that about it.) Conversely, according to this author, if every unwanted baby were aborted and we saw next to no single moms, we’d theoretically have a less permissive sex culture. Presented with those odds, I’ll take the reduction in abortion over the potential spread of a ‘permissive’ sex culture.

Now, on to argument #2. This argument states that we have no proof this will result in a reduction; I submit that. But based on what women say and where their incomes are located, it seems inevitable that there would be at least a marginal reduction in abortion. It is also true that some Scandinavian nations have seen abortion rise — as they have liberalized their economies, like Sweden. Since 1997, Sweden has increased its abortion rate from 18.4 per 1,000 women to 20.9 per 1,000 women. This rise is concomitant with the country’s march toward freer markets and decreased welfare regimes. Make of that what you will.

It is also the case that, if more single moms mean a more liberal sex culture, Crisis Pregnancy Centers are doing a bad thing. Yet the author praises them here. It appears he is caught, as we all are, in a challenging catch-22. I feel the best way out is to bite the bullet on a couple of issues: a child allowance wouldn’t end all abortion, and it isn’t the type of policy that punishes extra-marital sexual activity. But if it can reduce abortion at the margins, that is, allow the women who are pressured into abortion by their financial circumstances to make another choice, then I am willing to accept the blame for both of those things. That’s how strongly I feel about children being born.

Lastly, I want to make a distinct point here that I feel I under-made in my TAC piece. A child allowance to reduce abortions is in part an argument for particular means. I think these means are morally superior to punitive ones involving penalties, invasive or humiliating procedures, or fines. I think a child allowance program is more supportive of a total culture of life, for mom and baby, than the threat of jail or a transvaginal ultrasound or a whomping ticket. Since those who object to it regardless of its potential to reduce abortion usually don’t provide an alternative that would actually obviate their concerns (e.g. this author still supporting CPCs and reformocon tax credit regimes) I suspect that we’re really arguing about welfare itself. But in the event that we aren’t, I’d headline the question of truly moral means that are going to get us the society we want.

I’m grateful for this critique and found the article very nice to read. Hopefully this clears up my position on a few matters.

Response to “Contra Legal Realism”

Here is a post contra legal realism, arguing that:

The only thing that Bruenig’s exposition on “Christian” legal realism manages to demonstrate, with perfect simplicity and innocence, is that under this theory, even in a world ruled by men as wise and holy as Augustine minorities will end up despoiled and brutalized by the state. And that is sufficient to reject it.

The post accuses my scholarship of a touch of shoddiness and questions my faith; this is pretty typical of this author. But the meat of the argument is that if legal realism obtains, we are always in danger of the state deciding to administrate property ownership terribly, thus resulting in horrible despotic outcomes.

0.) I’m absolutely right about Augustine. Let’s just get that established straight out the gate. Oliver O’Donovan, Charles Avila, Robert Dodaro, etc all share this reading. It was also a feature of my dissertation my readers especially enjoyed and praised — these are full time Cambridge academics who spend their days immersed in the Patristics. So my scholarship is just fine; this really is Augustine’s position, and whether you wanna use proprietary terms to describe God’s relationship to creation, he does,so if one’s goodness can surpass his, go for it I suppose. But I am right on Augustine.**

1.) Legal realism is a descriptive theory. It describes how property actually exists in the world. This is why the author and I actually agree: states really are horrible stewards of property from time to time! For instance, look at the poor. Because of how property laws are set up, wealthy people can keep amassing their wealth for generations while the poor suffer, and the poor have no recourse but to hope the wealthy choose to slide a little their way.

Why is this schema terrible? It observes state conventions of ownership that are out of joint with the rights of persons to legitimate use of God’s creation. Therefore the state is acting unjustly. Augustine acknowledges that there are gradations of iniquity, as it were, when it comes to states; some create and maintain laws that respect the moral gravity of the human person, and some do not. The author is correct to say that states which fail to respect the dignity of persons through manipulative and abusive proprietary law are unjust. We’re living in one right now; see: all the children suffering in poverty who in some other state would have a little relief.

2.) So was Augustine right or wrong? This author points out that Augustine’s use of the state actually did strip people of their property. This makes it look like legal realism is the absolutely correct descriptive view: property that did belong to a set was then stripped and made not-theirs by the state’s decision about what laws to enforce. Augustine was right about property not because he was a Doctor of the Church, but because he had a functioning brain. The author does not seem to realize that pointing out that Augustine was successful in getting the state to change laws so that heretics could not hold property is a point in favor of the reality of legal realism, because it demonstrates quite clearly that ownership as we actually experience it in the real world is dependent upon such laws and their enforcement.

3.) Legal realism is not a normative theory. Observing that it obtains does not mean observing that it is ‘good’; it is neither ‘good’ or ‘bad’, but descriptive of how property works.  Augustine’s approach to the Donatists can be proven to be wrong by his own moral philosophy precisely because the fact that it featured an example of legal realism does not remotely reflect upon its rightness or wrongness. Were legal realism the normative theory this author thinks it is, I would be incapable of claiming both that Augustine’s behavior toward the Donatists is an example of legal realism and morally wrong; however, I can quite easily do both because the ‘legal realist’ tag is descriptive, inflecting no moral judgment whatsoever.

4.) Therefore you do not ‘choose’ whether or not to buy into the theory of legal realism; you argue whether or not it appears to be true. This can be done with a thought experiment: if I live under modern laws and I claim that I own you and therefore take you outside and beat you, I will be criminally prosecuted. If I live in ancient Rome and I claim that I own you and therefore take you outside and beat you, I only might be criminally prosecuted, because a set of laws exists in ancient Roman jurisprudence that allows me to really own you. The question becomes not whether you were harmed or not, but whether the relationship between you and me matches the criteria for ownership under the present Roman laws. If it does, the state will decline to take any action against me. If it does not, some action will be taken. This is because laws dictate property ownership by defining what the state will and will not intervene to enforce.

Does this mean ancient Roman slavery was a good? No, it was a grave moral evil, as all slavery is. But slavery is not a grave moral evil because it’s confused about who is actually property, it’s a grave moral evil because it involves states intervening to vastly neglect and abuse human dignity. This is a final point I’ll rest on: people who try to erect entire moral systems based on the idea of property always run into big time theological honk-ups because property simply isn’t a moral institution. Thus states that abusively play with property laws are evil, but so are individuals who similarly use existing property laws to carry out evil ends. This is why we should retain a clear-eyed and suspicious view of property ownership (as Christ himself did) to make sure our institutions respect primary moral goods in their creation and maintenance of property laws.

Addendum: There’s now a post following up to this one up on Patheos. In it there are two questions:

For example, I do not understand why Bruenig uses her description of Augustine’s legal realism as a retort to the desert theory of property, which is a normative, not a descriptive theory (that something is deserved cannot be a pure statement of fact–this is tautological). Bruenig is not simply correcting the record in re: a misrepresentation of Augustine’s view; she is clearly arguing that we should reject desert theory. But how does one reject a normative theory solely on the basis of a merely descriptive one, without imbuing it with normative implications or presuppositions?

The author did not read my entire post. My entire post separated Augustine’s view of property into two levels. It’s very clearly demarcated, even numbered. See for yourself here. The first level discusses divine proprietary theories; this is the normative level. The second discusses legal realist proprietary theories; this is the descriptive level. There are two because there is a gap between heavenly justice and earthly enactments of it. This is how Augustine (and I) can say legal realism is descriptively true and that it is layered over a divinely ordained plan for property that is normative.

As for labor-desert: it is sometimes normative and sometimes descriptive. Locke-types will periodically say labor-desert merely explains how an individual comes to own something. This is in fact the metaphysical change in property Locke is getting at with ‘labor mixing’, whatever the hoot that means. Then they will sometimes use it as normative, e.g. ‘the state ought to respect this condition as the one that confers ownership, because it’s good and wholesome’ or whatever. Augustine would agree with neither. I also do not agree with either use.

The second question is this:

The problem for me, to get down to it, is that there is nothing in what Bruenig writes here, or in the rest of her post, or in anything else I have read by her on the subject, that gives me the impression that Bruenig believes anyone could have a principled objection to–let’s say–a total redistribution of property.

Yes, I have no principled objection to this. If a Christian community wanted to live in this way, communally, that would be fine. If a community did not want to live in this way but could come up with another institutional way to make sure all needs were met, that would also be fine. I have no principled objection to any institution until they begin to harm/damage the apprehension of the worship of God and/or human flourishing; whether or not such institutions really do destroy flourishing or harm the apprehension of the worship of God is usually debatable, but the point is that legal realism itself is institutionally agnostic.

The author did not seem to realize why I mount a Christian legal realist argument so often. Here is why:

Me: We should make sure the poor are supported.

They: Why though?

Me: Christ commands it. [Normative theory of property]

They: Yes but not through the state.

Me: States can’t be just when they’re allowing their most vulnerable to be harmed.

They: But the state must rob me to get taxes.

Me: No, taxes are not robbery. [Legal realism.]

That is where the legal realist argument fits in: in a sequence of other arguments that are striving to evade the use of the state to provide some form of protection for the poor. It is not its own normative theory of property, but if you are not used to hearing objections such as the “state-as-thief” objection then I can see how you’d be confused by it. I can imagine one does not hear that objection often if they are in the habit of agreeing with libertarians because it’s one they tend to trot out when they’re backed into a corner morally. It is also possibly the case that the place of legal realism in a Christian understanding of property did not occur because there might be agreement on the normative point; the author now assures me he does not believe in absolute property rights, meaning the argument would be what the proper use of property is, rather than an immediate default to the idea that, regardless of outcomes, people have absolute rights to ownership the state simply can’t ‘interfere’ with.

I hope this clears things up.

**This passage has caused a lot of heartache for a lot of people — I’m surprised! But please take it just as it is: my security that, on this very narrow interpretive point, I’m not misleading you. I’m wrong about plenty of stuff plenty of the time; this is one very small area where I’m pretty sure I’m not. It’s not a blanket claim to constant rightness, nor any kind of claim that would legitimize the whole of everything I do. It’s just this one tiny point, which is still a bit much for some!

Dinesh D’Souza’s America: Imagine a World Without It

If you’re reading a review of Dinesh D’Souza’s America: Imagine a World Without Her, the film isn’t for you. America isn’t a film to be considered; it is not even a persuasion piece. The argumentation, such as it is, is far too thin and weary to even properly earn the label of propaganda, and the entire project drips with a vaguely self-aware déjà vu. The audience America is intended for has seen all of its tricks before, in so many Bill O’Reilly “history” books and weekend Civil War reenactments, where good ol’ boys swinging Stars n’ Bars roleplay a win Dixie couldn’t quite pull out in real life. It’s a movie designed to confirm the things a person already believes, with a little Rand Paul stumping thrown in for good measure – an all-time low of infotainment associations even for a dude named ‘Rand.’

America has been billed as a movie about what the world would be like without the United States of America, sort of like 2004’s A Day Without a Mexicanin reverse. And at the top of the film, as D’Souza’s weepy narration tracks over the computer generated dissolution of a number of American monuments, it does seem to flirt with the idea of being such a film. But it’s not. Instead, a sharp right turn takes D’Souza’s narrative to Howard Zinn’s A People’s History of the United States, from which he draws five theses he claims are insidiously peddled by Alinsky-inspired pinkos. Why would such pinkos peddle such theses? D’Souza argues that redistributive economic policies are only ever styles of reparations, and rely upon shame narratives to build up political support; to combat the specter of evils like welfare and universal healthcare, therefore, D’Souza must defeat the five-point myth of American suckdom.

The lies D’Souza must disabuse us of, in order: first, that the genocide of Native Americans happened in relation to the conquest of their land; second, that African slave labor was exploited to build the American economy; third, that Mexican territories were conquered to form the US southwest; fourth, that US wars abroad have involved imperial motives; fifth, that capitalism is bad. He goes to the trouble of listing these myths in text on what appears to be a massive parchment-esqe powerpoint slide, and the structure of the film is a methodical treatment of each in turn.

A generous assessment would be that what follows is more heat than light. In reality there is neither heat nor light, because D’Souza styles himself as an inquisitive but unbiased neocon Sherlock on a quest for the truth rather than a bullshit-busting insult comic a la libertarian superheroes Penn & Teller. He dissembles and equivocates, sure, but in a mealy-mouthed monosyllabic way that must appeal to conservatives too dumb for Douthat. There’s something a little limp and depressing about propaganda that can’t even pump you up, America falls into that category of squishy grease-soaked hype that’s spent too long under the heat lamp.

The argumentation itself is bad, laughably bad. Native Americans were bad treaty-keepers who were already killing each other, the brutes, a claim D’Souza curiously follows up with the assertion that they all died of disease anyway – just naturally, just like that, out of nowhere. As for African slaves, D’Souza is content to point out that some whites were indentured servants and some blacks owned slaves themselves; in the whacky world of Dinesh, racism has no legacy, only a distant past. Were Mexican territories conquered? Yeah, D’Souza submits, but then he gets a Mexican American to say that’s cool with him, and Ted Cruz shambles briefly on to bemoan the status of Texans under Mexican rule, which I guess coalesces into a weird unspoken just war theory. Watching America in an empty theater in Dallas (literally empty, only my husband and I on a Friday night) I couldn’t help but recall Ted’s stint as Texas solicitor general, a job he’d honored by trying to secure schools’ right to force the pledge of allegiance on kids, and wonder if I would’ve preferred Santa Anna instead.

As for US wars abroad, D’Souza supposes the torture of a Vietnam POW in the Hanoi Hilton made the whole thing even, and glosses over Iraq and Afghanistan in a couple of slick asides: we gave them democracy! His discussion of American capitalism is even stranger and more schizophrenic, dashing between clips of Michael Moore and Occupy and alighting briefly upon a black woman who used to be on welfare but then got off it because her friends told her it was ungodly. She then muses that she didn’t even know there were churches while she was on welfare. Just didn’t even know the Christian religion had institutional meeting places, no idea what all those buildings with crosses on top were, and D’Souza nods gravely along: this is what welfare does, the viewer intimates.

There are a handful of eccentricities per segment that I have no space to report, chief among them the assertion that Alexis de Tocqueville is a better historical source on Vietnam than Howard Zinn, that Saul Alinsky literally worshipped the Devil, that you just can’t trust Matt Damon. The climax of the film is a sad parade of D’Souza shamed and martyred in handcuffs for a crime he admits he committed, but suggests he was especially targeted for because, he claims, most people commit three felonies a day.

The film sputters out to some stock shots of blonde kids playing at Fourth of July parades interspersed with aerial shots of purple mountains majesty and amber waves of grain, all set to some Mumford & Sons. What did I just see, one wonders, and maybe the confusion is intentional, like a magician’s wild gesticulation to conceal sleight of hand. Because at the end of the day America isn’t really about history or narratives, it’s about arguing that any change in economic policy favoring the poor can only be traced back to people hating the United States of America. Keep your eye on the ball, and that’s what D’Souza is batting at.

Patristics, Property, Modernity

If you’re going to host a hoedown on Christian proprietary theories, you’re going to confront a certain list of people and Augustine is going to be among them. I got a great book recently called “Rediscovering Abundance: Interdisciplinary Essays on Wealth, Income, and Their Distribution in the Catholic Social Tradition.” I was pumped to see Augustine in the preface by Daniel Finn. Let me emphasize that it’s a good introduction and I have absolutely no problem with Finn’s thrust, which is to set up the reason we need to get a grip on matters of wealth and distribution in the peculiar age of industrial/post-industrial market capitalism. But I did notice that his use of Augustine in thinking about property mirrors the way a lot of writers use Augustine to think about property, that is, to say that his thoughts are vaguely ethically useful but no longer directly applicable given historical shifts in how we acquire wealth.

Here is Finn:

“Some sixteen hundred years ago, Augustine was urging his prosperous listeners to be generous toward the poor. Like the other Fathers of the early Church, he offered numerous reasons. Most important of these was that God as Creator gave the world to humanity in order that the needs of all be met. Another of the arguments he made is particularly telling. Augustine rebuked the wealthy by saying that they had “found” their wealth here; they did not “bring it with them” at birth. In Augustine’s day, of course, as throughout the pre-modern world, the wealthy were largely those who owned land. This is what provided them with the lion’s share of its annual produce and distinguished them from the ordinary working people of their era. Today we are aware that wealth is not simply “found” in the world, although it remains true that great wealth is frequently passed on in inheritance within families. In the modern world we are far more conscious of the role of human labor and ingenuity in the production of wealth.”

What Finn is getting at is more or less that Patristic wisdom on the nature of property isn’t exactly helpful anymore, and it’s a fair tack to take when you’re trying to occasion a book of essays reprising the intent of much Patristic writing, e.g. to articulate a Christian ethic of ownership.

But I’m still not sure this is a right reading of Augustine’s whole proprietary theory. Under Finn’s read, Augustine basically has a desert theory of wealth, that is, he believes entitlement to wealth arises through having come to deserve it somehow, and since the rich ‘find’ rather than ‘create’, they haven’t necessarily met the full requirements for just desert. But, Finn then posits, the relationship between creation, entitlement, and wealth is now no longer so obviously weak, because most wealth doesn’t come from sneaking up on a lemon grove and calling it yours as it once did. We really do labor and engineer our own stuff now, Finn appears to argue, with the correct exception for inheritance; therefore, in the Finn analysis, Augustine’s proprietary theory just doesn’t apply like it once did.

Yet there is a wrinkle. Augustine wasn’t a desert theorist. That is, he did not understand entitlement to wealth to arise through activities that make one deserving of them. This approach is sometimes called the “labor-desert” theory of ownership, and it’s Lockean. And yet here are Augustine’s thoughts* on that, From Letter 93:52:12:

“We disapprove of everyone who, taking advantage of the imperial edict, persecutes you, not with loving concern for your correction, but with the malice of an enemy. On the one hand, since every earthly possession can be rightly retained only on the ground of divine law, according to which all things belong to the righteous; or human law, which is the jurisdiction of the kings of earth, you err in calling those things yours which you do not possess as righteous persons and which you have forfeited by the laws of earthly sovereigns; and it is beside the point for you to plead, ‘we have labored to gather these things’, for you may read what is written: ‘the wealth of the sinner is laid up for the just.’”

Augustine’s worst episode was his use of Roman state force to strip the heretical Donatists of their property. In this letter, he’s responding from letters from the Donatists saying “please stop using Roman state force to strip us of our property, because we’ve worked for it and it is ours.” In other words, they’ve used a rudimentary labor-desert theory defense to explain to him why what he’s doing is bad. But he responds that there are actually two ‘layers’, if you will, to property ownership:

Layer 1: the Divine layer. Nobody has an absolute right to property because the earth is the Lord’s and the fullness thereof, and nobody’s claim can equal or supersede God’s. Instead we rely on his law, which is his gift: God gives the earth in common to all for the needs of all to be met. This layer of Augustine’s thought comes directly from his teacher Ambrose, who writes:

“Just as idolatry endeavors to deprive the one God of his glory, so also avarice extends itself into the things of God, so that, were it possible, it would lay claim to his creatures as exclusively its own — the creatures which he has made common for all. Hence God says through the Prophet: “Mine is the silver and mine the gold” (Haggai 2:8). Both are inimical to God, for both deny God the things that are his.”

Point of order, Ambrose is a complete beast. Augustine is sharp on property, but Ambrose will slap you right on your face. I mean how often do you see Haggai quoted ever? But that is just how Ambrose is. Anyway, the reasoning here is carried on quite clearly in Augustine’s proprietary theory: you cannot absolutely own privately, because to do so would be to seek a claim equal to or above God’s claim to all things. Instead we understand our relationship to God’s creation to be one of legitimate stewardship and the meeting of the needs of all. But Augustine does make space for private property ownership as we understand it.

Layer 2: the earthly layer. This is the way we handle property in the saeculum, the time between Edenic accord with God’s will and the eventual restoration of that accord. It is totally reliant upon our governing structures, the systems we create to order ourselves, whatever those may be. Here he explains, in his Tractatus in Iaonnis Evangelium 6:25-26:

“By what right does every man possess what he possesses? Is it not by human right? For by divine right ‘the earth is the Lord’s and the fullness thereof.’ (I Cor. 10:26). God has made the rich and poor of one clay: the same earth supports the poor and rich alike. But by human right, however, someone says, ‘this estate is mine, this house is mine, this slave is mine.’ By human right, therefore: that is, by the right of emperors.”

In other words, since we’re not paying attention to God’s wishes for property at this point (fallen and whatnot) we rely upon governing institutions to create and maintain their own proprietary systems. These bundles of rights are human creations; they are, as Augustine says, the rights of kings and emperors. This is the legal realist position that I have talked a lot about.

So in total, what Augustine is saying to the Donatists is: you have two shots at ownership. You can say you are entitled to something via divine law, or that you’re entitled to it by human law. Since you are not being righteous (i.e. you are heretics) you can’t claim divine entitlement, and since the state is telling you that the law now says you’re no longer entitled to what you have, you don’t have a human right to it either. Thus, Augustine says, quit trying to act like what is happening to you is not legit.

Now, I’m not advocating his tack here; it’s pretty well and rightly agreed this was a bad thing to do. Other pieces of his writing contradict his argument that only the righteous can access the divine plan for the common use of the earth by all, and I do think the pieces that contradict it are stronger than the pieces they oppose. They track a lot better with Ambrose as well. But the notion that only the righteous have access to the divine plan for creation is secondary to the notion that creation itself registers a claim on God’s part that prevent absolute ownership by humanity, which is the real meat of the setup at any rate.

But, it does prove that the Augustinian theory on property is emphatically not a liberal labor-desert theory. At its most full development, it’s more like a “Christian legal realism”, or a legitimate-use theory that provides strong directives for civil translation.  Thus I don’t agree that Augustine’s proprietary theory is too antiquated to make much modern use of. Augustine accounts for labor-desert theories and dismisses them with solid theology, and points toward a more complicated entitlement structure bound up with Christian ethics. Rather than old guys we should read to pay due reverence to, then, I think we can still read the Patristics for directly applicable theological proprietary wisdom today.

Fear, Death, Abundance


Like water, like a flood, and to what, wash you away? So it seems. I shared this cap last night, and some of the people who saw it felt it was a very legitimate sentiment because, in their words, the refugees currently congregated along the US border are “bringing violence with them.” For that reason some now fear for their families due to the refugee crisis.

Here’s one thing you can say about refugee crises: they are logistically complicated, not morally complicated. It is legitimately a logistical feat to come up with a way to gin up support for an unexpected population boom. But we do it all the time. Fellow Millennials: remember hearing about the Bosnian war between 1992 – 1995? The USA took 131,000 refugees during that crisis. Right now we’re dealing with 52,000. It is plausible we’ll eventually be looking at higher numbers; these, too, will not be unheard of: Vietnamese refugees numbered over 180,000, and Soviet refugees more than doubled that number.

None of these fluxes are ever easy. Sudden migrations are rough and they are roughest on the migrants; there’s a great documentary that covers the whole gamut of problems for a couple of Somali families called ‘Rain in a Dry Land‘ I’d recommend to get a sense of placement issues, poverty, culture shock, bureaucratic headaches and so on.  Adding to the complication of this situation is that the circumstances pushing people out of their homes in Honduras, Guatemala, etc. is heavily tied up in the drug trade, which the USCCB has already suggested we take a long, hard look at in our assessment of handling the crisis as a whole. I think that’s wise.

But the handling of refugees, especially child refugees, is still not morally complicated. This doesn’t mean there won’t arise moral complications in particular cases or for particular eventualities, but to say that, as it stands, the question of how to respond to the refugee kids we currently have at the border is not morally complicated. The morally upright thing to do is to mobilize our resources for dealing with refugees to protect these people from harm and to respect their human dignity. This is straightforward*.

But it’s not really amenable to the story the rightwing media likes to peddle, and they can’t miss a chance to ride their people-from-another-place hobby horse. So to introduce a level of moral complication — creepy-crawlies always thrive best in the shadows — they’re smearing the refugees coming to the US as dangerous. The language here is the language of moral hygiene, the suggestion is that they either bring violence like a contagion by their nature, or that they themselves are a kind of violent contagion. TeaParty.org has tagged every story related to the crisis ‘Invasion USA’ on their news blog. Hannity went and rode around in boats on the Rio Grande with Rick Perry and a ton of comically large guns. Seriously, look at this pair of doughy toads. Big 180 from Perry’s DREAM days, but I guess that’s what you’ve gotta do when you’re courting that sweet sweet Republican nomination.

Selling fear is how the rightwing nutcases keep their constituencies cowed and bilked out of money: be afraid of collapse, so buy into our cash-for-gold scams; be afraid of identity theft, so buy into our overpriced and underwhelming security systems; be afraid of refugee children, so donate to our campaigns so we can rescue you.

Remember those two kids Byron Smith murdered in Minnesota, after hanging out in his basement and waiting for them? In recounting the process of that murder, Smith claims Haile Kifer, eighteen, laughed at him when his gun jammed. The audio recording taken that day in his basement reveals no such laughter, only empty, sonorous silence, shattered by a series of gunshots. After the shot that ultimately ended Kifer’s life, Smith mutters to himself: “I’m safe now…I’m totally safe…I refuse to live in fear…I am not a bleeding-heart liberal.” I listened to the audio of the murders and his interviews with police to write a story on it, and the entire time these rightwing talking points kept cropping up (“bleeding heart liberal”, “not going to be a victim”) alongside these delusional, paranoid streaks of abject terror. Was he afraid? I think so. Should he have been? Of what, two unarmed teenagers? No. But everything he’d been told by the media he consumed made him absolutely demented with fear.

And why, for what? Fear sells. You can get people to tune in with fear. You can get people to do almost anything with fear: hold a gun to someone’s head and see what you can convince them to do. This works whether or not the gun is really loaded. Rightwing media has an unloaded gun, but how are their viewers supposed to know that?

Fear is antithetical to love; therefore it’s antithetical to the entire Christian ethical project. Take it from 1 John 4:

God is love, and those who abide in love abide in God, and God abides in them. Love has been perfected among us in this: that we may have boldness on the day of judgment, because as he is, so are we in this world. There is no fear in love, but perfect love casts out fear; for fear has to do with punishment, and whoever fears has not reached perfection in love. We love because he first loved us. Those who say, “I love God,” and hate their brothers or sisters, are liars; for those who do not love a brother or sisterwhom they have seen, cannot love God whom they have not seen. The commandment we have from him is this: those who love God must love their brothers and sistersalso.

Fear has to do with punishment: this reminds us that fear has to do with loss, diminishment, uncertainty. When you’re afraid of something, you aren’t certain. Loss is on the horizon, wavering like heat distortions rising off asphalt. It might come to pass and it might not, but you’re moved to self-defense by the prospect of loss. But love is about abundance, and abundance is about certitude. All of that which we associate with God — eternity, omnipotence, love — it’s all superabundant, overdetermined in both potential and meaning, as my teacher David Ford liked to say. Love isn’t thin, love isn’t frail. Love is rich, thick, always generative, always reliable. This is why it reproduces itself: the love God first extended to us should well up and spill forth and pass on to others and others and others; that’s the sense of John here.

On the other hand, fear encourages self-interest (because it has to do with uncertainty and loss) and in that way drives out love. In that way, it’s inimical to Christian ethics. (If you’re like: hey isn’t some fear good? then read Augustine’s commentary on the two types of fear.) The nutzo rightwing fear mongering brigade is, therefore, throwing a wrench in the constitution of a considered Christian ethical culture. So long as we’re steeped in fear, we can’t found ourselves in love. And as you can see from the fringey right response to the refugee crisis at the border, we can’t reason with love while we’re reasoning in fear: even charity takes on a veneer of abuse when fear has defeated the love of others and instilled a panicky, defensive focus on the self.

The solution here is going to be complicated; refugee crises are that way. They’re unique and nuanced and you just have to approach them case-by-case. But the situation itself is not morally complicated; this is the point Pope Francis made about it:

“A change of attitude towards migrants and refugees is needed on the part of everyone, moving away from attitudes of defensiveness and fear, indifference and marginalisation — all typical of a throwaway culture — towards attitudes based on a culture of encounter, the only culture capable of building a better, more just and fraternal world.”

Amen. It is not news to you I presume that rightwing media is a bunch of human hating garbage, but I hope it doesn’t have the final word here, or ever again. As in the Byron Smith case, the victims of this fear-mongering are usually the people who are most defenseless and easiest to abuse, that is, the young and the poor.

*Note: if you think it isn’t so straightforward but aren’t involved in the response the rest of the post details, obviously this is not about you. If you would like a post about you, that can be arranged for some ca$h.

Child License

Last night Matt and I tuned into Fox for some light evening viewing; they’ve got a libertarian program now, ‘The Independents.’ It’s a round-table situation that appears to be aimed at the youngs. They were talking about the spate of highly publicized arrests of parents for what appear to be fairly innocuous parenting decisions, such as leaving a twelve-year-old in a car for a few minutes and so forth. You can probably predict what the tack they took was: government overreach/overreaction into private matters, etc. And that seems pretty sensible to me in this case.

So: open and shut, clear case of the libertarian position being the sensible one, right? Not so fast. It appears libertarian reasoning can also be used to justify the exact opposite approach to parenting. At least, this is the argument of the folks over at Bleeding Heart Libertarians: they’ve got a plan to hand the power to grant or deny families over to states. It’s a real stunner. The post outlining the plan popped up in 2011, but we’ve been promised an elaboration in the coming weeks, so sit tight.

The plan is a “parenting license.” It’s not very clearly delineated, but here is the gist:

“The state should require parents to be licensed. That is, there is no moral right to raise a child, and we would do well to think of it as a privilege that the state grants and can refrain from granting to certain individuals. If you don’t like that way of putting it, I am comfortable with a weaker claim: whatever moral right to raise a child there might be is defeated when the parent-to-be is significantly likely to cause the child substantial and avoidable harm, or, of course, if the parent does cause the child such harm. Those that should be refused a license to parent a child are those who are likely, in parenting, to harm the child.”

K. Yet how do we justify state intervention here, especially since it would require such enormous oversight and invasion of privacy? I mean theoretically you could have your kid taken for choosing to live off the grid and refusing to participate in the whole licensing regime; this is usually a nightmare to libertarians! The article goes on:

I should be clear: I am not proposing a licensing requirement for pregnancy. I am not sure I would oppose such, but a parental licensing program is not a licensing program for pregnancy. With a parental licensing program, if you get pregnant, you go to get a license to raise the child or you decide to give up the child. You violate no law by becoming pregnant. Once pregnant, you violate no law until the child is born—and only then if you decide to raise it without getting a license. And perhaps you are allowed to take the licensing test multiple times if you fail at first. Perhaps you do so after taking parenting classes.

It is still not clear to me how any of this fits into a libertarian framework. The thin, tenuous claim to libertarian reasoning is that since children can’t consent to be parented and libertarianism is all about consent, the state should come in and impose a licensing regime neither parent or child consents to in order to see to the child’s best interest. If the parent refuses to involve herself in the licensing regime, the child is taken away — without the child’s consent. The entire consent argument is thus a wash; the rest is built on anticipated harms, not actual harms. If the reasoning is that the state should intervene anywhere people might be harmed, one can easily justify just about any form of intervention; after all, poverty might harm, so it’s best to totally obviate those harms, right?

Suffice to say you probably wouldn’t get much agreement there. But how would a policy like this shake out? Would it even be effective? On one hand, you’re shrinking the pool of carers (licensing can only decrease, not increase the total number of carers) but keeping the pool of kids at a constant. If you’re going to use the current system we use to handle abused kids, then you’re going to be using the foster care system, which means increasing the burden of care on an already notoriously overtaxed and rough system. Likewise the licensing regime can only destroy but never create or secure marriages; in fact, a woman would be smart not to marry under such a regime, as her husband’s success couldn’t help her if she failed and won’t matter if she passes, but a husband’s failure would void a wife’s right to raise a child even if she did pass. Therefore a husband is only a terrible risk and never an aid when it comes to the risky matter of a woman getting to keep her baby.

The biggest harm here would be to the poor. People with the money and time to pay into the test-gaming cottage industry would game the test, and people without the money and time would fail the test. In fact, the policy already includes a vague ‘means test’ that is aimed at taking children from the poor. The policy alludes fuzzily to ‘parenting classes’; we all know poor people working long hours and/or multiple jobs don’t have time to take off to attend arbitrarily enforced classes. So the net result here, through the ruination of families and arbitrary hoops invented by the licensing regime, would be to take children away from poor moms. That’s the impact.

Incidentally, that’s what makes the policy libertarian. Every time I (or anyone, including Vatican officials) criticize libertarians, the response is that there’s really no such thing as a libertarian proper, that libertarians come in all stripes, that the target is too varied and too infinitely fractured to ever actually hit. There’s no way to correctly characterize them; you’re always going to be at least slightly wrong, leaving something out. A standard definition does not exist. Libertarians are like the sun, you can only really get an impression, never a solid, definitive look.

I don’t think they’re lying or dissembling when they say that. I think they’re telling God’s honest truth. There is no one policy attitude that is libertarian; as this Bleeding Heart Libertarians policy proposal demonstrates, ‘libertarian’ is not predictive in terms of policy. Instead, libertarians appear to be bound together by a collective id, a murky, almost indescribable set of commitments and impulses. It might be expressed in terms of an intense devotion to procedural voluntarism, but you won’t always see those in the policy advocacy. What you will always see is a willful disengagement from an obligation to others, an intense individualism that views increasingly less-like-me sets of people with increasing disdain. Usually this puts the poor on the receiving end of bad policy, which is unintentional only in the fashion of Zizek’s Nazi functionary who gets off a a little on the horrific evil wrought by his just-doing-my-job duties. “It’s not that I’m targeting the poor, it’s just that this policy happens to harm them most of all! But it obtains because procedural voluntarism/whatever/something/anything.”

This, I think, is why there has lately been an uptick in Catholic objection to libertarianism; it’s not that there are a set of policies out there that must everywhere and always be promoted by Catholics, but rather that there’s an id Catholics shouldn’t participate in, an orientation of loves, if you will, that is ill-suited to the calling of Christianity. This tracks well with what Pope Francis has been saying about the free marketeers all along, and as usual, I’m pretty sure he’s nailed it.

Sleep Well

When I was a sophomore in high school my debate coach gave me John Patrick Shanley’s play Doubt: A Parable to read, knowing I was into its major themes. (For the unfamiliar: the title gives it all away. It’s set in a Catholic school in the 1960s, wherein it’s unclear whether or not a popular priest has molested a boy.) I liked it, but didn’t find it much to chew on mentally; I remember stewing on it for a couple of weeks and then deciding it was a bit of a one-note exercise. But there was an epigram at the top of the play billed as some culture’s parable that stuck with me:

The bad sleep well.

It’s also the title of a not-too-bad Japanese film meditating on similar themes; readers of Akutagawa’s In a Grove (filmic: Rashomon) will be familiar with the Japanese mastery of this particular brand of moral unease.

Now, the deeply religious often (and rightly) object to sentiments like these when they’re the opening gambit for some kind of moral relativism, but I mean to invoke the principle in thinking about policy. Consider the ever-great Leah Libresco:

I’ve been rooting for the cops to not catch the mother who abandoned her baby in a NYC subway station.  Turns out they did, and she’s facing a felony charge for abandonment of a child….The reason I’m feeling queasy about the trial is the poor incentives it creates for desperate parents.  Given her limited options, the woman picked a pretty good place to leave a child…I just don’t know how much use deterrents and harsh penalties are meant to be in cases like this.  Giving up your child is a very powerful natural deterrent already; the state has a very limited ability to meaningfully augment the consequences of this decision.  At a certain point, heavy penalties in these cases seem as futile as punishments for committing suicide (which has also been treated as a felony).  The state should be most focused on deterring murder, abuse, or very reckless forms of abandonment, rather than illegal abandonment.

Leah was pretty much savaged in the comments section, and not in the way women usually are in comments sections; it was easy to see how her readers objected to the notion of a criminal who had committed a crime against a child escaping justice. That’s heavily burdened language, of course: you could as easily phrase it as ‘the notion of a mother who had abandoned her child being left alone.’ Neither phrasing is wrong, but one envisions a certain set of solutions for a particular problem, and the other uses more constant, general terms, supposing (as Leah does) that some problems will obtain regardless of the legal incentives or disincentives we match with them.

Some problems will prevail because you can’t inculcate goodness into people. You can, however, institute order; the legal tools we have are therefore best understood as tools for the creation and maintenance of order. It is not as though order is a morally neutral state; obviously the debate over what constitutes a superior form of order compared to an inferior one is a moral argument, but the point is that the legal tools themselves create order on the macro level, and should not generally be expected to do so on the individual level.

So the question then becomes when looking at legal tools: what kind of a world are we trying to create? But I think this question very often becomes confused with: what kind of people would we prefer to create? There are two problems with this:

1.) People are often worse than their worst acts. I recall a time during college when I was in a grocery store on my own. I’m a small person (shorter than 5 feet, less than 100 pounds) and have a very young-looking face, which I forget. A guy approached me while I was leaning over looking at a lower shelf and told me I looked pretty. I laughed nervously (default response to everything) and the guy said some more stuff, speaking very slowly and softly. I registered that he was asking me if I were there by myself. It then began to slowly materialize that he thought I was a young child on my own, and was making some sort of play for my trust. Of course, I was about 21 years old, so the reality is that all he was guilty of was awkwardly hitting on a 21-year-old. But that wasn’t what he wanted to do; what he wanted to do was worse. Here, where people intend much worse than they actually manage, the law can’t help us.

2.) People are often better than their worst acts. We can probably all reflect on our own lives to fill in an example here, but Leah’s works as well: if a mother who recognizes she is not fit to parent attempts to leave her child to the community outside legal parameters, we can attempt to discipline her into personal moral betterment using the penal carceral system, but this seems to me to threaten to break a butterfly upon a wheel. There is some sound moral reasoning, as Leah indicates, in trying to give a child up among multitudes of people; it can be seen as the modern equivalent of knocking on the door of an abbey and leaving an infant behind. It isn’t a morally perfect act, but neither is it one that seems to me to indicate a deep or totalizing moral depravity.

Therefore I hesitate to see the penal system as one that’s terrifically useful when it comes to inculcating private virtue. Thus when responding to situations like the one Leah cites, I think it makes more sense to look at the totality of our legal tools and ask: what kind of world would I like to see? Certainly one in which this never happens, one of the qualities of which is a world made up of happy, strong families. Since we can’t have a world in which wrongs never happen, all we can do is seek to use the totality of our legal tools to make happy, strong family-making very much possible. The practice of throwing people in prison for long, non-rehabilitative sentences is a recipe for a lot of things — abuse, rape, recidivism, prison profiteering — but it isn’t much of a strategy for the creation or maintenance of strong, happy families.

This is why I am not generally sanguine about the take-a-key-and-lock-’em-up approach to all things I find objectionable, with abortion being my latest example. If what we want in the matter of abortion is mothers raising their kids, then what we absolutely don’t want is to relegate women who have/seek abortion to lengthy, abusive prison sentences, seeing as 61% of women who have abortions have other kids, and one can imagine catching a woman trying to have an abortion in a theoretical abortion-illegal world the throwing her in prison only to eventually separate her permanently from the infant we would’ve liked her to raise. In either circumstance, imprisoning mothers doesn’t give us the world we want. The same is true of Leah’s case: throwing the mother who abandoned her child in prison doesn’t put the family back together.

This is all very inductive. In some situations the use of a carceral system makes sense, though perhaps not one so deeply embedded in profiteering and abuse as ours. But what I’ve tried to sketch out roughly here is a hesitance to rely on disciplinary legal methods for dealing with problems of private virtue while ignoring the overall outcomes of those methods (long an argument in the prison abolition and anti-drug wars movements.) It places one in the strange moral position of navigating a kind of murky, mosaic response to things which are surely problems but are not so surely corrected with penal legal responses. In a lot of policy discourse it can make one appear sympathetic to acts they’re not sympathetic to, and it certainly doesn’t provide the black-and-white finality and moral certitude of advocating tough-on-crime type policies. I think a lot about how to handle issues like these, and I don’t sleep well on them.