Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Monday, May 22, 2017

Natural Law, Welfare Economics, and Administrative Law: Comments on Helmholz

Lumen Christi recently hosted an excellent event on Richard Helmholz's most recent book, "Natural Law in Court." In addition to Helmholz, the other panelists were Michael Moreland (moderating) and Jeff Pojanowski.

I post here the written version of my comments on the book in raw, unedited form. Lumen Christi will also release a video of the event. The written comments do not include my sense (delivered orally) that the book accomplishes the near-impossible by presenting the caselaw of late-medieval Piedmont, for example, in a way that is elegant and readable, indeed absorbing.

Pojanowski, in a tweet the morning of the event, and without having seen my remarks, teased that I would offer a natural-law defense of the administrative state. If I am to be condemned in any event, I might as well be hanged for the full sheep, and I think I'll take the lamb as well.

*****

Dick Helmholz says that "insofar as this book has a unifying theme," it is that "practical limitations repeatedly stood in the way of natural law's dictates." What exactly are these "practical limitations"? Dick clearly sees them as extrinsic to the natural law, and variously refers to them as "practical," "pragmatic," having to do with "consequences," resting on "public utility" or the "good of the community" and so forth. It is not wholly clear in what sense they are supposed to be an antonym of the natural law.

I want to suggest a somewhat different way of thinking about this, which is that the "practical" limitations Dick refers to are themselves solidly grounded in and indeed part of the natural law. If that is right then Dick has, perhaps surprisingly, undersold the natural law with this thesis. That is, the legal arguments he codes as practical limitations of the natural law are themselves a working-out of commitments within the natural-law tradition. The claims of lawmaking in the service of overall public utility themselves have unimpeachable natural law credentials. Indeed, at the end I will venture to suggest that something like judicial deference to the reasoned policy choices of lawmakers is itself an entailment of natural law theory.

Let me offer two ways of cashing out the suggestion that these practical limitations are themselves part of the natural law. The first way sounds in welfare economics, the second way sounds in (what we would today call) administrative law.

As to welfare economics, in many of the cases Helmholz discusses, the courts applying "practical reasoning" are reaching results, and indeed offering arguments, that can be understood comfortably in welfare-economic terms. Welfare economics is, of course, a moral theory, one that rests upon simple axioms claimed to be accessible to the natural reason of all.

Let me give one example of such an axiom: the Pareto principle, which in its weakest form says (I will simplify for present purposes) that a policy or legal rule improves upon the status quo ante if and only if it makes at least one person better off, and no one worse off. There are odd and rather contrived cases in which the principle may not hold, but there are also odd and rather contrived cases in which lying seems like a great idea. In the normal central cases, natural reason suggests that lying is a bad idea and also suggests that weak Pareto is almost necessarily correct.

A standard example of the importance of the Pareto principle involves the usury laws Dick discusses throughout. In one example, courts upheld an Italian statute allowing moderate rates of interest on a loan. As Bentham would later argue, such a rule makes both borrower and lender better off, if the alternative is not a zero-interest loan, but no loan at all. Indeed risky borrowers with little capital are most advantaged by allowing a positive rate of interest on loans. If we stipulate no third-party effects from a commercial transaction between these two parties, then - as Bentham argued - the transactors are better off and no one is worse off. Pareto.

Now there might in fact be third-party effects, and there is a kind of standard conversation to have about what theory of value to plug into the Pareto principle - what exactly do we mean by "better off"? - but the principle in itself is entirely agnostic as among theories of value; it doesn't necessarily presuppose or require, for example, a subjective and hedonic theory of value, although it is frequently discussed as though it does. In any event, my point is different. I don't care whether the laws allowing interest were in fact justifiable on Pareto grounds.

My suggestion rather is that courts allowing such laws, out of concern for the welfare of parties, were doing natural law squarely as it has been understood in the tradition. The Pareto principle, when adopted by a judge or other official as a criterion of social choice, is almost literally "law," at least in Aquinas' sense, because it is an "ordinance of reason for the common good." Where the principle is satisfied, the common good is necessarily enhanced. It is natural law because, again in Aquinas' words, "the first principle of the natural law is that good should be done and pursued, and evil avoided" and the principle aims to do just that.

In other cases, of course, the Pareto Principle doesn't hold. A nice example from Dick's book is the case of the ducal decree of Piedmont that made a city responsible for the losses suffered by a monastery within the city limits. In this sort of case, the losses will fall somewhere, so it is impossible to make someone better off without making someone else worse off.

Here I come to my second perspective. For these difficult cases, Dick gives us, what I can only call, at the risk of some anachronism, an administrative-law approach. That is, a running theme of the book is that in hard cases of this sort, where there is no escape from conflicting claims, courts imposed upon the relevant non-judicial actors a different sort of natural-law obligation sounding in procedural terms: an obligation to offer reasoned justifications for policy making, with a view to the common good. That is, as I read Dick, courts required nonjudicial actors to articulate some reasoned basis for their policy choices, one justified by reference to some rational conception of the common good.

In the case of the Piedmontese monastery, although the city argued that it was contrary to the natural law to hold them liable without fault, the lawyers defending the ducal decree carried the day by arguing, in Dick's words, that the natural law prohibition "applied only to statutes enacted without a good reason. This decree was not one of those." The reason given was that where no actual wrongdoer could be identified, to give the monastery no compensation at all would allow crime to go unredressed. Is that last argument a natural-law argument or a "pragmatic" argument? It seems impossible to put it only in one category or the other. As with the hypostatic union of the divine and human natures in Christ, it is both fully the one and fully the other. In that sense, I think Dick may be undercounting the natural-law arguments in the cases and even understating the influence of natural law.

Finally, although this is not explicit in Dick's text, and I would like to hear his thoughts on it, one gets the sense that courts might uphold the actions of lawmakers in such cases even if the reasoned justification advanced by the lawmakers was not necessarily the same one that the courts would have adopted if forced to make all decisions themselves. Here we have something like "deference" to nonjudicial actors, avant la lettre.

This shouldn't surprise us; I think deference of a sort is built right into the heart of natural law theory. The idea of the determinatio rests on the thought that ordinances of reason for the common good may be underspecified, such that there are multiple reasonable ways of carrying natural-law obligations into execution. Suppose a city, or a noble, has a natural-law obligation to provide a hospital for the poor in the territory. But there are many reasonable ways of carrying out this reasoned purpose to promote the common good, and if they are sensible courts will not interfere with any choice within the realm of the reasonable. As John Finnis puts it:

"A determinatio, if it is just and fit to be authoritative, must have a rational connection to principles of practical reasonableness. But that rational connection is like an architect’s decisions about dimensions; they must be rationally connected to the terms of the commission but these terms, while excluding various options, leave many options entirely open .... [such that] the choice is entirely free."

When lawmakers make choices of this sort -- what I have elsewhere called "rationally arbitrary" choices -- they are completing and fulfilling the natural law project, not overriding it with extrinsic "pragmatic" considerations. Indeed, I would be prepared to argue, but on a different occasion, that when lawmakers exercise this sovereign prerogative of reasoned-but-arbitrary free choice, they most nearly resemble God the Creator.

May 22, 2017 | Permalink

Friday, May 19, 2017

What Does It Mean to Be a Human Being?: Anthropology and Law

Lumen Christi Institute

Earlier today, the Lumen Christi Institute hosted a planning session at Loyola University Chicago School of Law. Participants included Michael De Chevalier, Judge Tom Donnelly, Rick Garnett, Dick Helmholz, Tom Kohler, Thomas Levergood, David Lyons, Michael Moreland, Jeff Pojanowski, Adrian Vermeule, and myself. The purpose of the meeting was to begin the process of planning an ambitious project: a series of events and other gatherings aimed at building an intentional community of legal academics who have a greater knowledge of and appreciation for the Catholic intellectual tradition, and so are able to engage that tradition in their work as legal scholars.

As a prelude to our discussions, we read two short works: an article by John Coughlin on Christian anthropology (here), and Pope Benedict XVI’s address to the Bundestag in 2011 (here).

There was a general consensus at the meeting that these readings highlight two ideas of immense importance that the Catholic intellectual tradition has to offer law toady: a correct understanding of the human person and of human reason.

To aid the discussion, I prepared a memo on the anthropological question. At Rick’s suggestion I have posted it below and hope that readers find the points made and the questions posed to be of some value.

***                              ***                              ***                              ***

  1. “Every system of law reflects certain foundational assumptions about what it means to be human.” John J. Coughlin, O.F.M., Law and Theology: Reflections on What It Means to Be Human From a Franciscan Perspective, 74 St. John’s L. Rev. 609 (2000). Coughlin is not alone in rendering this judgment. Political liberals, such as Isaiah Berlin have likewise said with respect to liberty, that the judgment to restrict certain action “depends on how we determine good and evil, that is to say, on our moral, religious, intellectual, economic and aesthetic values; which are, in their turn, bound up with our conception of man.” Isaiah Berlin, Two Concepts of Liberty, in Isaiah Berlin, Liberty 181 (Henry Hardy, ed. 2002). Others, of course, dispute this claim, or contend that a minimalist understanding of human nature is all that law requires – what Michael Sandel derisively referred to as the “unencumbered self.” See Michael J. Sandel, Democracy’s Discontent: America in Search of a Public Philosophy 6 (1996),
  1. Despite whatever rhetorical gloss may accompany it, the dominant answer to the question “What does it mean to be a human being?” that underlies American law today is that man is simply a material being: one that eats, and sleeps, and copulates, and defecates. There is no “meaning” to human life or to the universe. There is no transcendence beyond this, other than the desire for “freedom” to realize one’s material desires. From this desire is derived the view that law, when it is exercised in a legitimate fashion, is solely designed to enhance, or secure the fulfillment of man’s material needs and desires. The question of the reality of human freedom and its relationship to law is in fact glossed over. Freedom is simply assumed to exist, and the implications of a thorough-going materialism are largely ignored.
  1. In God, Philosophy, Universities: A Selective History of the Catholic Intellectual Tradition (2009), Alasdair MacIntyre writes: “One of the tasks of Catholic philosophers now, therefore, has to be that of following the injunction of John Paul II in Fides et Ratio to do philosophy in such a way as to address the deeper human concerns that underline its basic problems, without sacrificing rigor or depth” (p.176). In Fides et Ratio John Paul II argues that the contemporary project of philosophy is to “verify the human capacity to know the truth, to come to a knowledge which can reach objective truth by means of an adaequatio rei et intellectus to which the Scholastic Doctors referred” (FR ¶ 82). He also stresses “the need for a philosophy of genuinely metaphysical range, capable, that is, of transcending empirical data in order to attain something absolute, ultimate, and foundational in its search for truth” (FR ¶ 83).

MacIntyre maintains that Catholic philosophy must respond to the Nietzschean claim that all uses of philosophical argument and the conclusions reached “are unrecognized expressions of and masks concealing a will to power” (p. 177). An adequate response to this charge must give “an account of their philosophical arguments and conclusions that warrants the claim that they have sufficiently good reasons for advancing those arguments and defending those conclusions” (Id.). The substance of such an account is “what is it to be a human being” (Id.). Moreover, “any adequate account of what it is to be a human being will explain how and why human beings are capable of the relevant kind of self-knowledge” (Id.). Furthermore, if Catholics succeed in offering such an account, they would be in a position “to engage with the contentions of the whole range of contemporary major philosophical positions incompatible with and antagonistic to the Catholic faith” (p. 178).

What is the answer to the question “What is it to be a human being?” offered by the leading schools of jurisprudence in the contemporary academy?: Law and Economics? Legal Realism/Critical Legal Studies? Feminism? Legal Positivism? Do these various schools of jurisprudence adequately respond to the Nietzschean challenge? Or do they succumb to it?

  1. In Centesimus Annus (1991), John Paul II confronts a philosophical and political system then dominant in the West, namely, socialism. He states that “the fundamental error of socialism is anthropological in nature,” subordinating the individual to “the functioning of the socioeconomic mechanism,” eliminating the personal responsibility of man “in the face of good and evil” and so reducing man “to a series of social relationships [in which] the concept of the person as the autonomous subject of moral decision disappears” (CA ¶ 13). Pointedly, John Paul observes, “from this mistaken conception of the person there arise both a distortion of law [sic], which defines the sphere of the exercise of freedom, and an opposition to private property” (Id.).
  1. We may, perhaps, think about how the Catholic intellectual tradition can be brought to bear on different aspects of law through the lens of “culture” that John Paul II proposes in Centesimus Annus ¶ 24. He begins by noting that capitalism, as practiced in much of the West actually “agrees with Marxism, in the sense that it totally reduces man to the sphere of economics and the satisfaction of material needs” (CA ¶ 19). Contrary to the shared materialism of these two competing political systems, “it is not possible to understand man on the basis of economics alone” (CA ¶ 24). Rather, “[m]an is understood in a more complete way when he is situated within the sphere of culture through his language, history, and the position he takes toward the fundamental events of life, such as birth, love, work, and death. At the heart of every culture lies the attitude man takes to the greatest mystery: the mystery of God. Different cultures are basically different ways of facing the question of the meaning of personal existence. When the question is eliminated, the culture and moral life of nations are corrupted” (Id.).

How does American law conceive of and respond to “the fundamental events of life”: birth, love, work, death? How do our law and legal institutions respond to the mystery of God? What is the answer to the fundamental events of life posed by the leading schools of jurisprudence in the academy today?: Law & Economics? Legal Realism/Critical Theory? Feminism? Legal Positivism?

  1. Coughlin flushes out what he describes as a Franciscan anthropology (pp. 624-626) which, he says, in contrast to the anthropology evidenced in Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992), “teaches that true freedom subsists not in the assertion of individuality alone, but from participation and solidarity with others in a common endeavor” (p. 625). This anthropology “offers the law the insight that legal relationships need not be defined exclusively in terms of individual rights” but that these freedoms must be balanced with responsibilities (Id.). He notes that “[a] system of law that is primarily concerned with individual rights may not readily enhance the goal of supporting family life” and that the language of individual rights “may result in a legal culture that seems hostile to the family unit” (p. 626).

In what other ways does the materialist anthropology implicit in American law distort law and so fail to support the human person and the common good of society?

May 19, 2017 | Permalink

Prof. Michael Hernandez on religiously-affiliated law schools

Courtesy of Paul Caron, here's a new paper from Michael Hernandez (Regent) called "In Defense of Pluralism:  Religiously Affiliated Law Schools, Olympianism, and Christophobia."  The abstract:

Daniel Webster observed that “Christianity, general, tolerant, Christianity, Christianity independent of sects and parties” was the foundation of our liberties and legal system. In the spirit of this tradition, I have explained in my scholarship that the law must zealously guard religious liberty for all, while the substance of law should be based on principles of truth knowable by and accessible to all and not on principles unique to one faith. In other words, a Christian-based jurisprudence does not inherently involve the imposition of uniquely Christian principles and, thus, is not theocratic. This Essay responds to direct challenges to religiously affiliated educational institutions and explains why a principled pluralism rooted in the enduring traditions upon which this nation was built must include accommodating the right of religiously affiliated institutions to act in accordance with their faith principles.

Timely and important.

May 19, 2017 in Garnett, Rick | Permalink

Thursday, May 18, 2017

Time Magazine heard about our conference

Apropos our upcoming Anglo-Russo comparative tradition and traditionalism conference, it seems Time Magazine has a late developing interest as well.

But I'm afraid the conference is closed to the media. 

Time Magazine

May 18, 2017 in DeGirolami, Marc | Permalink

Wednesday, May 17, 2017

Tomorrow in Chicago: "Natural Law in Court"

As Rick noted, I'll be part of an event in Chicago tomorrow sponsored by the Lumen Christi Institute with Adrian Vermeule and Jeff Pojanowski on Richard Helmholz's book Natural Law in Court: A History of Legal Theory in Practice. Details here. I noted a couple years ago a review by John Goldberg of the book when it was published, and the event should be an interesting exploration of the themes in the book as well as a celebration of the remarkable career of Dick Helmholz.

May 17, 2017 in Moreland, Michael | Permalink

Tuesday, May 16, 2017

How Should a Law School's Religious Affiliation Matter in a Difficult Market?

I've posted a new paper that might interest MoJ readers, How Should a Law School's Religious Affiliation Matter in a Difficult Market?  Put simply, I aim to help deans and faculty "explain why prospective students who are told repeatedly that law school is a risky proposition should care that our law schools have religious affiliations."

Here's the abstract:

For religiously affiliated law schools, a broad and deep understanding of professional formation should lie at the heart of our reason for being and should grow out of our own religious traditions, allowing us to educate the whole person. Articulating and cultivating this deeper understanding of professional formation is essential for deans of religiously affiliated law schools today as we seek to demonstrate the connection between our religious identity and the value proposition our schools offer to our current and prospective students.

Feedback is welcome.

May 16, 2017 in Vischer, Rob | Permalink

Movsesian Interviews Dreher

Rod Dreher's recent book, The Benedict Option, is an interesting meditation on the future for Christians in what he describes as a post-Christian culture and society. In this extended, candid, and far-ranging interview, my colleague, Mark Movsesian, discusses the book's claims with Rod and much else that may interest MOJ readers. A bit:

Movsesian: I wonder if we could talk about tradition, which runs like a red thread through your book. You argue that it’s necessary for Christians to return to tradition in order to resist “liquid modernity,” which denies the value of all attachments and identities except those individuals freely choose for themselves. In liquid modernity, the only thing that has meaning is momentary individual choice. This is quite destabilizing for individuals and for society; that’s where tradition can be helpful.

As co-director of the Tradition Project, I have sympathy for your view! But I think there’s a paradox about tradition in a pluralist society like ours. In such a society, tradition is itself a matter of individual choice; there’s no avoiding it. Tradition is just one available option among many for an individual to choose; in the end, each of us is free to choose tradition or to reject it; to choose it and then reject it; or to choose some aspects of it and not others. This is true even of people brought up in a tradition—like the kids attending classical Christian schools today. What do you make of this paradox?

Dreher: There’s no escaping it. I am quite aware of the near-absurdity of my own personal case: a 50-year-old man raised a nominal Methodist, a convert to Catholicism in my mid-20s, converting to Orthodox Christianity at 39, and having moved around the country a great deal for my career, writing a book in praise of tradition. Yet … what else is there? Charles Taylor says that we all live in a secular age, which he defines as the awareness of the possibility that we don’t have to live the way that we do. We cannot escape choice.

This is why our St. Benedict, if we are to have one, must be new and very different, as MacIntyre said. The first Benedict emerged in a West that was still new to Christianity. Now we have been through the Christian era, and can’t un-see what we have seen. And the consciousness of an ordinary person living in the 21st century can hardly be compared to the way a 6th century layman saw the world conceptually and imaginatively. This point hardly needs elaboration, but it conditions any approach to tradition we make today.

To bring this discussion down to earth, I think a lot these days about my late father and sister, who were in most respects traditionalists without knowing what they were doing. That is, they assumed that the rural way of life they had in south Louisiana was going to continue forever. They were quite intelligent, but they strongly rejected as alien anything that challenged their way of seeing the world. That meant rejecting me, and the things that I loved and stood for, though I didn’t realize how thorough this rejection was until I returned to south Louisiana after my sister’s 2011 death. My dad died in 2015. The family has not held together, for various reasons – and this was something I never expected. I deeply admired the unselfconscious traditionalism that my dad and sister represented. They didn’t theorize this stuff; they lived it. But I can see in retrospect that they believed that force of their iron wills was sufficient to ward off all threats to the things they valued most, especially family and place. It was a tragic mistake. Their rigidity, by which I mean their unwillingness to adapt and to change certain things that needed to be changed for the sake of holding on to the things that really mattered the most – that was the fundamental flaw that doomed the entire thing. They thought that stoically preserving their fortress-like outer walls would keep the interior safe. They were wrong.

It’s heartbreaking and tragic in the fullest sense of the word, and a very Southern tragedy too.  But I try to learn from what happened. I suspect I’ll spend the rest of my life trying to learn from what happened. Right now, I think the most basic lesson is the need for discernment in our approach to tradition. There is no substitute for it. We have to know what we have to change so we can conserve what is essential. This is hard.

On the more optimistic side, though, I believe that we are starting to see more and more people realizing that the future is not determined. Yes, I think we have to be aware of all that is against us in post-Christian modernity, but we also have to be aware that God can surprise us – and we can surprise ourselves. I mean, look, Napoleon closed the monastery in Norcia, St. Benedict’s hometown,  after at least eight centuries of constant presence there. For nearly 200 years, there were no monks. And then, at the turn of the millennium, a handful of American Benedictines who wanted to live in the old Benedictine way re-opened it. Now they have a thriving community of 16 monks. The average age is 33. Who could have expected that?

In The Benedict Option, I quote one of those monks, Father Martin Bernhard, who left the Texas Hill Country to follow his calling to Norcia. When I visited him there in early 2016, I told him that they are a sign of contradiction to the modern world. He smiled, and said that anybody could do something out of the ordinary if they are willing “to pick up what we have lost and to make it real again.”

The monk told me, “People say, ‘Oh, you’re just trying to turn back the clock.’ That makes no sense. If you’re doing something right now, it means you’re doing it right now. It’s new, and it’s alive! And that’s a very powerful thing.”

God knows it will not be easy to revive traditional Christian life and practices. But again: what else is there?

May 16, 2017 in DeGirolami, Marc | Permalink

Tradition and Traditionalisms Compared: A Joint Program of The Tradition Project and the Post-Secular Conflicts Project

I'm pleased to announce this conference, to be held in Trento, Italy on June 12-13, which my colleague, Mark Movsesian, and I are putting on jointly with Professor Kristina Stoeckl of the University of Innsbruck, Professor Pasquale Annicchino of the European University Institute, and Professor Marco Ventura, the Head of the Religious Studies Program at the Fondazione Bruno Kessler.

The conference will compare tradition and traditionalism in the Anglo-American and Russian historical experience (for those who do not know Professor Stoeckl's very fine book on Russian Orthodoxy and human rights, allow me to recommend it), and we're happy to have MOJ denizens Moreland and Vermeule joining us. There is something fitting about American and Russian scholars descending on the Dolomites and the locus of the Concilium Tridentinum to discuss and reflect on the respective traditions that they study.

May 16, 2017 in DeGirolami, Marc | Permalink

Friday, May 12, 2017

A Retreat on Prosecutorial Discretion and a Return to Retrograde Imprisonment Practices

Incarceration_timeline-clean.svgWith incomplete but meaningful progress on wrongful convictions and sentencing reform, a partial return to the traditional expectations of prosecutorial discretion in the interests of justice was a distinctive mark of the Obama Department of Justice. Then-Attorney General Holder began to address the problem of over-incarceration for non-violent offenses by encouraging federal prosecutors to press charges that were tailored to the culpability and circumstances of the defendant, reserving lengthy prison terms for violent criminal and drug kingpins. A bipartisan consensus has been emerging that decades-long prison sentences for low-level drug offenders were contrary to justice, undermined community stability, foreshadowed lifelong problems with the criminal justice system, and imposed massive costs on taxpayers.

Alas, the increasingly retrograde Department of Justice under Attorney General Sessions has swept all of this away and retreated to an unthinking and morally unjust policy of charging defendants with the most serious crimes carrying the highest sentences that can pass the low threshold of probable cause. As the Washington Post reports today, Sessions contends that this allows more flexibility to prosecutors  who would be “un-handcuffed and not micromanaged from Washington.” In fact, the Trump political surrogate-cum-Attorney General -- has ordered federal prosecutors to “charge and pursue the most serious, readily provable offense.” So now, contrary to a morally thoughtful system of justice and every study of what works in criminal justice, we retreat to a failed policy that has embarrassed our country with the highest rate of incarceration anywhere in the world and which will destroy more lives and families, impairing rehabilitation and restoration to communities. And just like the doltish “wall,“ we're all going to end up paying for this in ways monetary and otherwise.

Incarceration_rates_worldwide

Sessions argues that “[w]e are returning to the enforcement of the laws as passed by Congress, plain and simple.” But as I wrote on the topic four years ago (full post here):

No legal, moral, or professional obligation requires a prosecutor -- wielding the awesome power of government to subject a person to captivity -- to charge someone whenever a plausible case can be made that he or she has committed a crime, much less to seek the highest charge (with the highest attendant sentence) that the facts could support.  Indeed, there was a time when a prosecutor, as a matter of wise discretion, would choose not to file a charge at all, when the circumstances were extenuating or a criminal solution was not in the best interests of all of those involved in an episode.

 

May 12, 2017 | Permalink

Misunderstanding religious liberty and the freedom of the Church

Over at Commonweal, Prof. Massimo Faggioli (Villanova) has a piece  ("Continental Drift") that is, among other things, critical of Catholic bishops in the United States for their religious-liberty stance and activities.  Prof. Faggioli writes:

[T]here’s a gap in time between American Catholicism and the pontificate of Francis—not just the six- or nine-hour differences in time zones but what seems like a six- or nine-century difference in historical time. Institutional American Catholicism is longing for a relationship to a political power that is more medieval than modern or postmodern, hoping for protection from the persecution it feels in having lost cultural hegemony. This can be seen in the medieval understanding of religious liberty that has obtained since the beginning of the legal fight against certain provisions of the Affordable Care Act eight years ago. It resembles libertas Ecclesiae, the “freedom of the Church” to rule on the faithful as subjects, more than it does the concept of religious liberty laid out in Dignitatis Humanae, which is based on the freedom of conscience of the individual believer. It is an example of the “interrupted reception” of Vatican II in the U.S. Church. Vatican II tried to deal with the end of Tridentinism; its rejection brings us back not to Trent but even earlier, to a medieval Christendom as the past to which Roman Catholics ought to refer as the golden age.

This quote reflects both a mistaken view of the Church's "medieval" "relationship to . . . political power" and a mischaracterization -- indeed, a caricature ("to rule on the faithful as subjects") -- of what the Church in America has been seeking in the current American context.  The Council did not, contra Prof. Faggioli's suggestion, set the "freedom of conscience of the individual believer" against the freedom of the Church.  There's this (emphasis added):

This Vatican Council declares that the human person has a right to religious freedom. This freedom means that all men are to be immune from coercion on the part of individuals or of social groups and of any human power, in such wise that no one is to be forced to act in a manner contrary to his own beliefs, whether privately or publicly, whether alone or in association with others, within due limits.

The council further declares that the right to religious freedom has its foundation in the very dignity of the human person as this dignity is known through the revealed word of God and by reason itself.  This right of the human person to religious freedom is to be recognized in the constitutional law whereby society is governed and thus it is to become a civil right.

It is in accordance with their dignity as persons-that is, beings endowed with reason and free will and therefore privileged to bear personal responsibility-that all men should be at once impelled by nature and also bound by a moral obligation to seek the truth, especially religious truth. They are also bound to adhere to the truth, once it is known, and to order their whole lives in accord with the demands of truth. However, men cannot discharge these obligations in a manner in keeping with their own nature unless they enjoy immunity from external coercion as well as psychological freedom. Therefore the right to religious freedom has its foundation not in the subjective disposition of the person, but in his very nature. In consequence, the right to this immunity continues to exist even in those who do not live up to their obligation of seeking the truth and adhering to it and the exercise of this right is not to be impeded, provided that just public order be observed.

And, there's this:

The freedom or immunity from coercion in matters religious which is the endowment of persons as individuals is also to be recognized as their right when they act in community. Religious communities are a requirement of the social nature both of man and of religion itself.

Provided the just demands of public order are observed, religious communities rightfully claim freedom in order that they may govern themselves according to their own norms, honor the Supreme Being in public worship, assist their members in the practice of the religious life, strengthen them by instruction, and promote institutions in which they may join together for the purpose of ordering their own lives in accordance with their religious principles.

Religious communities also have the right not to be hindered, either by legal measures or by administrative action on the part of government, in the selection, training, appointment, and transferral of their own ministers, in communicating with religious authorities and communities abroad, in erecting buildings for religious purposes, and in the acquisition and use of suitable funds or properties.

Religious communities also have the right not to be hindered in their public teaching and witness to their faith, whether by the spoken or by the written word. However, in spreading religious faith and in introducing religious practices everyone ought at all times to refrain from any manner of action which might seem to carry a hint of coercion or of a kind of persuasion that would be dishonorable or unworthy, especially when dealing with poor or uneducated people. Such a manner of action would have to be considered an abuse of one's right and a violation of the right of others.

In addition, it comes within the meaning of religious freedom that religious communities should not be prohibited from freely undertaking to show the special value of their doctrine in what concerns the organization of society and the inspiration of the whole of human activity. Finally, the social nature of man and the very nature of religion afford the foundation of the right of men freely to hold meetings and to establish educational, cultural, charitable and social organizations, under the impulse of their own religious sense.

In recent years, the rights of religious communities set out above have, in various ways, become more vulnerable and, in some cases (as in the previous Administration's position in the Hosanna-Tabor case) been attacked.  The Catholic bishops in America have been correct (and entirely in keeping with the religious-freedom views of Pope Francis and his predecessors) in defending these rights and nothing about this defense sets them against the religious freedom of individual believers.

  

May 12, 2017 in Garnett, Rick | Permalink

Thursday, May 11, 2017

Prof. Gerard Bradley on religious freedom and the common good

My colleague, Prof. Gerard Bradley, has a thoughtful piece up at Public Discourse, called "Religious Liberty and the Common Good."  Here's a bit:

A key pillar of the common good as it pertains to religious liberty, then, is a strict duty to respect by each person of every other person’s freedom in religious matters. Another is the softer—affirmative, circumstantially qualified—obligation to do what one can to protect others from coercion, pressure, manipulation, and unworthy persuasion....

Described in this way, freedom of religion might sound like a strikingly negativeliberty. And indeed, freedom from force and manipulation is essential to religious liberty. But it is not the whole of it. Not nearly.

Unless it is suffused with the right cultural stuff, a scheme overridingly committed to each person’s free quest for religious truth is likely to derail into an enabler of individual self-invention and individuality for its own sake. Where it happens (and I think it is happening in America right now) this devolution into subjectivity is acidic. It corrodes the undercarriage of genuine religious liberty, especially the essential notion that religion is about objective truth. Plainly put, a culture that has lost its belief that religion is about the truth of reality has decapitated religious liberty....

May 11, 2017 in Garnett, Rick | Permalink

Wednesday, May 10, 2017

A short primer on the Blaine Amendments

The Federalist Society has put up a short animated primer on the Blaine Amendments, featuring a law professor who, clearly, has a face for radio.   For more on the Trinity Lutheran case, go here.

May 10, 2017 in Garnett, Rick | Permalink

Panel discussion in Chicago: "Natural Law in Court"

If you are in or near Chicago, don't miss this event on May 18:  Michael Moreland, Adrian Vermeule, and Jeff Pojanowski -- what a line-up! -- will be discussing Richard Helmholz's new book, Natural Law in Court:  A History of Legal Theory in Practice.  More info:

Join us for a reception and panel discussion of the recent book by R. H. Helmholz, Natural Law in Court: A History of Legal Theory in Practice (Harvard University Press, 2015). Copies of the book will be available for purchase.

Until very recently, lawyers in the Western tradition studied natural law as a part of their training, and the task of the judicial system was to put its tenets into concrete form, building an edifice of positive law on natural law’s foundations. Although much has been written about natural law in theory, surprisingly little has been said about how it has shaped legal practice. Natural Law in Court asks how lawyers and judges made and interpreted natural law arguments in England, Europe, and the United States, from the beginning of the sixteenth century to the American Civil War.


SCHEDULE:

5:15PM   Registration and Reception

6:15PM   Program

7:30PM   Close

May 10, 2017 in Garnett, Rick | Permalink

Tuesday, May 9, 2017

Fordham Event on "Religious Liberty in a Pluralistic World"

On May 16, I'll be one of the panelists at an event on Fordham's Manhattan (Lincoln Center) campus, entitled "And Justice for All? Religious Liberty in a Pluralistic World." My terrific co-panelists are Sr. Carol Keehan, executive director of the Catholic Health Association; Asma Uddin, of the Center on Islam and Religious Freedom; Ani Sarkissian, professor at Michigan State specializing in global issues of religion, politics, and religious freedom; and moderator Vince Rougeau of Boston College. The sponsor is Fordham's Center for Religion and Culture. If you're in NYC, come to Lincoln Center from 6-8 p.m. for a symphony of contrasting and complementing themes!

May 9, 2017 in Berg, Thomas, Current Affairs | Permalink

Monday, May 8, 2017

Link to video of recent Douthat/West conversation

Here is the link to the recent Murphy Institute conversation between Ross Douthat and Cornel West on "Christianity and Politics in the U.S. Today."  We've edited the wide-ranging 2-hour conversation down to a manageable hour, including highlights such as: an analysis of recent U.S. military interventionism in light of Christian principles; a fascinating debate about whether the term "white supremacy" is applicable to any situation other than the relationship between blacks and whites in the United States; Ross Douthat asking Cornel West:  "What about sex?", and the ensuing discussion; and the moving and thoughtful response to a young Latina woman's request for advice to her generation about dealing with the perception of increased racism, discrimination, and xenophobia. 

Minnesota Public Radio will be broadcasting the conversation as part of their MPR News Presents series, tomorrow (May 9) at both noon and 9 pm (CST).  That link is here.

May 8, 2017 in Schiltz, Elizabeth | Permalink

Deneen on Social Contract Theory and the American Founders

From Patrick Deneen's essay, "Ordinary Virtue," in his collection of essays, Conserving America: Essays on Present Discontents 52-55 (2016) (footnotes omitted):

When one thinks back on those men who moved the nation to declare independence, cool reflection forces one to think not of how much they stood to gain by gaining independence from England--for it's not obvious that many, if any, stood to gain much at all--but how much they stood to lose by committing this act of treason in the eyes of England....

These were men with a great deal to lose--including, for most, significant fortunes by the standards of those days....What is all the more remarkable was their willingness to pledge their lives--which several did lose in the course of the revolution. The signers were keenly aware of the likelihood of execution for signing the Declaration....

The willingness to pledge their lives for the sake of independence is remarkable especially because the first part of the document is based extensively on the philosophy of John Locke. Locke famously argued that political community was the result of a social contract that people formed in the State of Nature. Because the State of Nature is eventually so disadvantageous to individuals--perhaps not as awful as Hobbes' conception of the state of nature, who described it as "nasty, brutish, and short," but not a condition that ultimately accords human beings with sufficient guarantees of security, much less justice--natural men sacrifice some of their natural freedoms to form a government that will act as an impartial judge and protector of the contracting agents. The government is charged with preserving the rights of citizens--among them "life, liberty, and property" in Locke's version--and when government encroaches too much on these rights, then we reserve the right to revolt against that government, and revert back to a State of Nature to form a new social contract.

What one has to notice is that there is a basic tension in the basic fabric of this theory. Social contract theory is based on the premise that we value, above all, self-preservation--even more than we value our total liberty, since we give up some liberties from the State of Nature in order to institute a government that can protect our lives from the depredations of others. Hobbes, for one, so feared reversion back to the State of Nature that he concluded that government could demand anything of its citizens except to force anyone to be willing to die....Locke is a bit more ambiguous about what conditions would justify outright revolution, but the conditions have to be much worse than the worst conditions of the State of Nature. And yet, for the men who signed the Declaration, this was clearly not the case--their lives were not personally in danger before they declared independence, and their lives suddenly were in grave peril afterwards.

Liberal theory has always had a bit of a hard time dealing with this conundrum, that is, how to call on the willingness to sacrifice even one's life for the sake of one's core principles of liberty, since liberalism itself places a very high premium on self-preservation. Under such a set of philosophical presuppositions, how can one be encouraged to value liberty even more than self-preservation? Tocqueville noticed this difficulty during his visit to the United States in the 1830s, remarking that democratic citizens had a tendency to justify every act in terms of self-interest, even those acts that might be justifiably construed as inspired out of generosity, sacrifice and duty, even the willingness "to sacrifice a part of their time and their wealth to the good of the state." Tocqueville surmised that, over time, the language of self-interest would exert a formative influence upon democratic man's self-understanding: "for one sometimes sees citizens in the United States as elsewhere abandoning themselves to the disinterested and unreflective sparks that are natural to man; but the Americans scarcely avow that they yield to movements of this kind; they would rather do honor to their philosophy than to themselves."

May 8, 2017 in DeGirolami, Marc | Permalink

Friday, May 5, 2017

Fake Law

Though that could certainly describe President Trump's "Executive Order on Religious Liberty" issued yesterday, I have something different in mind in this article. A bit:

Welcome to the rise of fake law. Just as fake news spreads ideologically motivated misinformation with a newsy veneer, fake law brings us judicial posturing, virtue signaling, and opinionating masquerading as jurisprudence. And just as fake news augurs the end of authoritative reporting, fake law portends the diminution of law's legitimacy and the warping of judges' self-understanding of their constitutional role. 

May 5, 2017 in DeGirolami, Marc | Permalink

Thursday, May 4, 2017

Manent on the Necessity and Insufficiency of the Principle of Free Speech

Here's something else from Pierre Manent in a little book of his originally published as Situation de la France and translated as Beyond Radical Secularism (p.55):

In the present configuration of things, the demand for freedom of opinion and expression without restriction, as essential as it may be, as I have repeated, is not sufficient to prepare us adequately for the challenges that await us. This demand, as I have explained, is not even sufficient to produce a sufficiently enlightened freedom. The abstract principles of modern politics may be products of long experience, but they are not by themselves capable of producing the community of life and experience that they help so usefully to organize. Their abstraction, as I emphasized in discussing secularism, tends to distance us considerably from the experience that they are supposed to distill, to make us forget the meaning of this experience, and to give the illusion that we have only to apply them in order to live together freely and happily.

May 4, 2017 in DeGirolami, Marc | Permalink

The Religious-Liberty Executive Order

The term "nothing burger" gets overused, I think, but it seems to apply pretty well to today's Executive Order.  While I confess to feeling snarky about all the hysterical pre-denunciations we were getting from the usual Salon/Vox/Slate scare-quotes crowd that turned out to be wasted outrage, it's difficult to avoid feeling frustrated by the fact that some serious questions and issues are ignored by the order out of, it appears, a fear of the (inaccurate) "license to discriminate" charge. 

Yes, Americans who embrace our constitutional tradition of respecting religious liberty and the role of religious believers in public life will welcome, naturally, the Executive Order's declaration that the Administration is committed to protecting religious liberty.  The guidance it calls for from the Attorney General could also have positive effects, assuming that this guidance includes reminding all federal agencies about the demands of the Religious Freedom Restoration Act and other statutory provisions.  And, this Order would appear to be entirely safe from legal challenge ... because it doesn't do anything. 
 
With respect to the enforcement of the Johnson Amendment, it is already the case that the relevant agencies and officials are highly deferential to churches and religious leaders, especially when it comes to what's said in the context of sermons and homilies.  And while it is a good thing -- and long overdue -- that the Administration apparently intends to craft a more reasonable and inclusive religious exemption from the contraception-coverage mandate, such regulatory relief was already probably on its way, eventually, as a result of the Supreme Court's decisions.
 
As I see it, it is unhealthy and even dangerous for the well being of the human right -- everyone's human right -- to religious freedom that it seems "baked into the narrative" that (a) "religious freedom" means "a license to discriminate" and so is bad and (b) that "religious freedom" is something that gets manipulated by politicians so as to appeal narrowly to a subset of political conservatives.  
 
 

May 4, 2017 in Garnett, Rick | Permalink

Quick Reaction on the Trump Religious Liberty EO

President Trump issued his executive order on religious liberty today, with a good-sized rollout featuring the Little Sisters of the Poor etc. There was much fear on the left and hope on the right. However, the order itself has little or no effect in concrete terms. It avoid issues concerning LGBT rights and religious liberty; it concentrates only on the Johnson Amendment and the contraception mandate.
 
The order's first section is a general statement in favor of religious liberty, which will be comforting to religious conservatives but has no operative effect.
 
On the Johnson Amendment--concerning withdrawal of tax benefits for organizations that endorse a candidate for office (e.g. through an official statement by a clergy leader)--all the order does is forbid IRS action against a religious organization in a situation that "has not ordinarily been treated" as a case of endorsing a candidate. In other words, don't treat religious organizations any worse than secular organizations. But there's no pattern of cases in which that's happened. This just confirms the status quo, under which the IRS has not been going after churches or anyone else for candidate endorsements. In theory, it might even allow the IRS to start going after both equally--although that seems very unlikely in this adminstration.
 
On the contraception mandate, all the order says is that HHS and other relevant agencies should "consider issuing amended regulations, consistent with applicable law, to address conscience-based objections." The Supreme Court already ordered something similar in the Zubik/Little Sisters case. And Trump's order gives no direction on what the the new regs should do. The agencies will likely give the objectors some relief, assuming that his agency appointees set the course. But the executive order adds little to that.
 
Religious conservatives will take comfort from the generally positive attitude toward their religious liberty claims. But in its operative effects, this nowhere goes out on a limb for them. The issues concerning LGBT/religious-liberty conflicts remain, and this gives little indication Trump will go out on a limb on those. (Admittedly, he could be trying to take smaller steps first.)
 
ADDENDUM: It should be noted that in the Rose Garden ceremony, the President stated, with no tone of irony in his voice, that "We will never ever stand for religious discrimination. Never ever." This from the President whose travel-ban executive order began with the campaign pledge (never withdrawn) of a "total and complete shutdown of all Muslims entering the United States."

May 4, 2017 in Berg, Thomas, Current Affairs | Permalink

Happy English Martyrs Day!

Saints Margaret Clitherow and Thomas Garnet (inter alia), pray for us!

May 4, 2017 in Garnett, Rick | Permalink

Wednesday, May 3, 2017

Confident Pluralism in Corporate Legal Theory

I've posted a short essay in tribute to my colleague Lyman Johnson that may be of interest to MoJ readers, especially those who have enjoyed John Inazu's recent work on pluralism.  Here's an excerpt:

Lyman has been a prime mover in bringing pluralism to corporate legal theory. He embraces the pluralist label, noting its importance as to both corporate form and corporate purpose. Relying on work regarding mediating structures, Lyman notes that there is "no reason why, with respect to business corporations, there cannot be a pluralism of market-oriented entities designed to advance different purposes," recalling Robert Nisbet’s emphasis on how mediating structures grow out of "shared ‘communities of purpose.’" He insists that "the law should facilitate, not impede, the design of ever more refined firm structures." Pluralism is important to his work.

But Lyman is not just a corporate legal theory pluralist; he’s also a Christian. In his calling as a Christian law professor, it matters not just that he champions pluralism, it matters how he does so. 

May 3, 2017 in Vischer, Rob | Permalink

Tuesday, May 2, 2017

Save the Date: Sir Roger Scruton Keynotes The Tradition Project, Part II

Tradition Project

It may be a little early, but as calendars tend to fill up, please save the date for Sir Roger Scruton's keynote address for the second part of The Tradition Project, which will focus on "Tradition, Culture, and Citizenship." Sir Roger will open our conference with a lecture on the evening of Thursday, November 2, 2017, at the New York Athletic Club. Further details will be forthcoming in the fall. Please write to me or Mark Movsesian if you are interested in attending the lecture.  

For more about Part II of The Tradition Project, see this post. And for an illuminating treatment of Sir Roger's thought across the decades, see this recently published piece in The New Criterion.

May 2, 2017 in DeGirolami, Marc | Permalink

"A Bipartisan Case for School Choice"

Prof. Melissa Moschella has this essay up over at Public Discourse.  Definitely worth a read, and definitely a helpful reminder that the case for school choice is as much about social justice, religious freedom, and fairness as it is about efficiency and competition.  A taste:

There is no such thing as a completely value-neutral education. In the absence of vouchers, low-income parents are effectively forced to send their children to a public school, even if they object to the values directly or indirectly promoted in that school. And given that public schools are constitutionally required to be non-religious, the fact that only public schools can receive public educational funding effectively means that the government is favoring non-religion over religion. This places a substantial burden on religious parents, many of whom believe that they have a serious religious responsibility for the religious education of their children, by making it financially difficult or even impossible to send their children to a religious school.

Therefore, turning [Justice] Stevens’s argument on its head, we could say that the public schools’ monopoly on public educational funds is actually in tension with bothof the First Amendment’s religion clauses. The absence of some sort of voucher program (at least for low-income students) is in tension with the Establishment Clause because it promotes secularism in children’s formal education. It is also in tension with the Free Exercise Clause because it places a substantial burden on the ability of parents to fulfill one of their most serious religious duties.

May 2, 2017 in Garnett, Rick | Permalink

Friday, April 28, 2017

My (video) conversation with John Allen, Jr. on "Drinks with John" about religious freedom

This was fun.  John Allen is even nicer in "person" than he is sharp in print.  Check it out!

April 28, 2017 in Garnett, Rick | Permalink