Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Friday, June 23, 2017

Justice Declaration

Earlier this week, Christian leaders gathered in Washington to express their support for criminal justice reform.  With Attorney General Sessions putting the brakes on the developing bipartisan consensus that we face an incarceration crisis in our country, it is reassuring to see conservative Catholic and evangelical leaders stepping up to affirm that "our over-reliance on incarceration fails to make us safer or restore the people and communities who have been harmed."  The initiative is another reminder that Prison Fellowship (founded by Chuck Colson after he served his time for Watergate) remains one of the most effective Christian ministries today, particularly in its capacity to draw conservative Christians' attention to issues that do not often appear on voter scorecards.  You can read the "Justice Declaration" here.

June 23, 2017 in Vischer, Rob | Permalink

Thursday, June 22, 2017

The Rage of Henry VIII

 

A short note on the feast-day of the martyr-saints John Fisher and Thomas More: I believe that the spiritual biography of Henry VIII has yet to be written, and may never be. There are a number of good secular and political biographies, and those are important and worthy. To understand the deep tap-roots of Henry's part in the English reformation, however, would in my view require a treatment of his spiritual degeneration. Perhaps syphilis and kingship and the Tudor character explain it all. Perhaps, however, something worse was at work.

Consider the nature of Henry's rage. When Paul III made Bishop John Fisher a Cardinal, seeking to protect him -- what decent Christian would lay hands on a Prince of the Church? -- the effect was the opposite of the intention. As the Catholic Encyclopedia recounts, "Henry forbade the Cardinal's hat to be brought into England, declaring that he would send the head to Rome instead." Who, or perhaps I should say what, could speak with such flippancy and relish of beheading a venerable priest? Who or what is so wicked and yet so childish?

Another example: I remember vividly a tour of Christchurch Priory in Dorset, the former domain of the Countess of Salisbury, a peeress in her own right, relative of kings and the last of the great Plantagenets. She is perhaps better known to Catholics as the Blessed Margaret Pole, gruesomely martyred by Henry in the Tower for refusing to abjure her son, Cardinal Reginald Pole, the last Catholic Archbishop of Canterbury. (I do not say "for the crime of refusing to abjure" because Henry in his urgency bypassed regular judicial procedure). The Countess was seventy years old, was hacked to death, and was buried in the Tower graveyard because Henry refused to allow her to be buried in her own chantry chapel at Christchurch Priory. Who or what could be so bitterly vengeful against an old lady, whose great fault was to be a faithful and loving mother?

Indeed, our tour guide at Christchurch Priory showed us the Countess' partially despoiled chantry chapel, and recounted -- English localities have very long memories indeed -- that Henry's men had come with specific orders to deface the decorations within the chapel, even the ones not visible from the ground. (The tale is confirmed by a letter from the King's Commissioner). Who or what would care to deface what is visible only to God? "What rough beast, its hour come round at last..."

The spiritual biography of Henry, then, would have to comprehend the nature and source of the malevolent rage that consumed him. A model might be Patricia Snow's explanation for the cold gleeful fury at the heart of Hilary Mantel -- and the Culprit might well turn out to be the same in both cases.

 

June 22, 2017 | Permalink

Tuesday, June 20, 2017

Prof. Philip Hamburger on the Blaine Amendments and Anti-Catholic Prejudice

Over at First Things, Prof. Philip Hamburger lays out the history, context, and meaning of the so-called Blaine Amendments and their relevance to the pending Trinity Lutheran case.  Here's a bit:

In fact, the Blaine Amendments are among the clearest examples in the nation’s history of a state establishment of religion—and the only reason they have not been recognized as such is that they establish a theologically liberal vision of religion. The formal establishment of relatively orthodox churches came to an end in the early nineteenth century, and the Blaine Amendments mark the political ascendancy and establishment of theological liberalism—an establishment not of any particular, let alone orthodox church, but of a vision of individual spirituality unimpeded by ecclesiastical authority.

This theological vision is now so pervasive that judges barely recognize the Blaine Amendments as having established a distinctive religious point of view. But this is the reality, and the amendments are thus unconstitutional in ways that go far beyond the questions raised in Trinity Lutheran.

If the courts are to be taken seriously on questions of religious liberty, they cannot whitewash theological prejudice and the resulting discrimination. For approximately 75 years, the Supreme Court has enforced the Constitution’s religion clauses against the states—often razing to the ground relatively innocuous practices. The Blaine Amendments, however, still stand as monuments to theological animosity and discrimination. A constitutional accounting is long overdue.

June 20, 2017 in Garnett, Rick | Permalink

Monday, June 19, 2017

The Freedom of Speech at SCOTUS today

It's a "Captain Obvious"-level obvious point, but the Court handed down two cases today -- Matal v. Tam and Packingham v. North Carolina -- that seem entirely consistent with the Justice-Kennedy-era Court's highly libertarian, regulation-skeptical approach to the First Amendment's Freedom of Speech.  Although there were some concurring opinions, it's striking that, at the end of the day, the free-speech claimant won in both cases unanimously. It strikes me as plausible that the justices are sending signal to those who have been suggesting recently that the First Amendment does not protect offensive, hurtful, divisive, or "hateful" speech and, perhaps, mean to shape the debate about speakers, speech, protests, etc., on public-university campuses.   Justice Kennedy wrote, in his concurring opinion (joined by three of the Democratic appointees):

The danger of viewpoint discrimination is that the government is attempting to remove certain ideas or perspectives from a broader debate. That danger is all the greater if the ideas or perspectives are ones a particular audience might think offensive, at least at first hearing. An initial reaction may prompt further reflection, leading to a more reasoned, more tolerant position. Indeed, a speech burden based on audience reactions is simply government hostility and intervention in a different guise. The speech is targeted, after all, based on the government’s disapproval of the speaker’s choice of message. And it is the government itself that is attempting in this case to decide whether the relevant audience would find the speech offensive. 

As many Prawfs readers will know, groups of law professors weighed in on both sides of the case (see, e.g., here and here).

June 19, 2017 in Garnett, Rick | Permalink

Friday, June 16, 2017

Fast-Tracking ACA Reform

I'm not sure what the most effective response to the dearth of civil, respectful political debate in our country is, but I certainly don't think the answer is to quelch all dialogue.  But that seems to be exactly what the Republican leadership in the Senate is doing with its response to the House's American Health Care Act.  As this Washington Post article reports, Senator McConnell has invoked the fast-track procedure that will bring the bill right to the floor for a vote, without any committee hearings.  The bill itself is being negotiated in private, with the expectation that it would be released within 24 hours of a vote, leaving nobody who might want to undertake a thoughtful examination of these important issues with any time to do so.  I don't pretend to understand all the details of the complexities of the ACA or its reform, but I am seeing desperate appeals from disability advocacy groups (like this from the National Down Syndrome Congress, and this from The Arc), describing the devastating effect the changes to Medicaid currently in the House bill, and likely to be in the Senate bill, will have on services to people with disabilities.  If you don't have a family member with a disability, have you heard anything at all about this aspect of ACA reform?

This really isn't any way to run a country, is it?

June 16, 2017 in Schiltz, Elizabeth | Permalink

Monday, June 12, 2017

Why the anti-Sharia movement is (at least in the U.S.) anti-Muslim

I have an op-ed in the Minneapolis Star-Tribune explaining why it is difficult, in light of current American law, to interpret Saturday's nationwide "anti-Sharia" marches as anything other than anti-Muslim.  An excerpt:

The religious terms of an agreement do not and should not prevent courts from enforcing it. Just as the rule of law is not threatened when courts apply canon law in handling a bankruptcy case for an archdiocese or enforcing an arbitration agreement based on biblical principles, the rule of law is not threatened when Muslim litigants order their lives in keeping with their faith.

 

The most recent anti-sharia initiatives reflect a change in strategy — instead of forbidding courts from considering sharia law, they prohibit the enforcement of any foreign law that would result in the violation of a constitutional right. These new laws are of no practical effect — we do not need new statutes to tell judges not to violate the constitutional rights of litigants. (That’s what the Constitution is for.)

 

These newer initiatives may be without practical effect, but they’re not meaningless. They — like the marches convened on Saturday — are packed with meaning that is not lost on Muslim Americans. The aim of these efforts is not legal reform — it is fearmongering.

Feedback, as always, is welcome.

June 12, 2017 in Vischer, Rob | Permalink

Political Leadership in 2017 (a/k/a Defining Deviancy Down)

Senator Kirsten Gillibrand is the latest reminder of an unfortunate lesson the Democrats have drawn from President Trump's election: show your populist streak by swearing more in your speeches.

Jeet Heer now argues in the New Republic that we need more of this, not less: 

The new wave of swearing isn’t the cause of a breakdown in civility, but a symptom of a national crisis. These are dire times in the U.S. The president is a manifestly unfit kleptocrat who may have obstructed justice, but he’s not going to be impeached anytime soon because he has the support of his party. The only proper response is a full-scale attack on the political system, which requires rallying the public by letting them know just how foul things are—a task best accomplished with foul language. Trump represents an existential threat to American democracy. In this state of emergency, there’s no room for wimpy euphemisms and lofty rhetoric.

Lovely.  Nothing is off limits, of course, because we have never faced such an existential threat to our political system!  A leader could invoke "the better angels of our nature" in 1861 because that leader probably knew nothing about national division and discord.  If that leader had ever encountered a Trump-sized threat, he'd have been invoking fewer angels and dropping more F-bombs.  And why raise a hand to stop the demolition of traditional norms of civility -- norms that, I feel obliged to point out, bear no culpability for the economic dislocation at the root of our current "anti-establishment" moment -- when we can grab a sledgehammer and join in the fun?

Well, at least the election has caused Democrats to rethink their litmus test on abortion rights.  Oh wait

June 12, 2017 in Vischer, Rob | Permalink

Sunday, June 11, 2017

Also For Trinity Sunday: The Identification of the God of the Philosophers with the God of Revelation

Rublev Holy Trinity

I appreciate the point of Kevin Walsh's post for Trinity Sunday (here) in which he quotes Catherine Mowry LaCugna's book God For Us: The Trinity and Christian Life, and her contention that an adequate response to the fundamental questions posed by late modern thought "cannot [be] answer[ed] by taking refuge in the classical metaphysical properties of God," and that the only appropriate response "is for Christian theology to start afresh from its original basis in the experience of being saved by God through Christ in the power of the Holy Spirit.  The only option for Christian theology, in other words, is to be trinitarian."

I wholly agree with LaCugna's injunction that Christian theology must be thoroughly trinitarian.  And, while I confess that I have not read her book (so she very well may address this in the text) I think that her dismissal of the Church's teaching concerning the inner life of God  -- what she calls "the nonsoterialogical doctrine of God" -- is mistaken.  We must be prepared to give an account for our reason for hope (1 Peter 3:15) to explain what we mean when we say that we are "saved by God through Christ in the power of the Holy Spirit."  That is, we must be prepared to say what we mean by "God," "Christ," and "Holy Spirit." 

To reflect on "the classical metaphysical properties of God, such as omnipotence, omniscience, omnibenevolence, impassibility, incorporeality, and simplicity" is not to "take refuge" in a metaphysics divorced from God's self-disclosure to the people of Israel and in Jesus Christ.  Rather, it represents the Church's effort to know God, and to explain how the Christian God differed from the gods of the ancient world, whether Zeus, or Osiris, or some other god. 

As Joseph Ratzinger explains in his Introduction to Christianity (a beautiful and erudite reflection on the Apostles Creed that he wrote shortly after the Council), in the milieu of the pagan world, the early Church "boldly and resolutely made its choice and carried out its purification by deciding for the God of the philosophers and against the gods of the various religions" (p. 94).  Against the "deceit and illusion" of the ancient religions, the Church declared "When we say God, we do not mean or worship any of this;  we mean only Being itself, what the philosophers have exposed  as the ground of all being, as the God above all powers -- that alone is our God" (p. 95).

This movement was "the movement of the logos against myth" (Id.).  This choice was the choice of truth over custom, that is, over a preserved ritual that was "devoid of reality" and "divorce[d] from truth" (p. 97) -- for all that remained of pagan cosmology, after being subject to the critique of the philosophers, was custom "as mere furniture and outward form of life" (Id.).  Here Ratzinger quotes Tetullian who articulated the Church's position "with splendid boldness": "Christ called himself truth, not custom" (Id.).

Yet in deciding for the logos, for truth, for the God of the philosophers, the Church did not opt for a lack of religion -- for a lack of relationship, for an arid philosophical belief.  As Ratzinger explains:

"By deciding in favour of the God of the philosophers and logically declaring this God to be the God who speaks to man and to whom one can pray, the Christian faith gave a completely new significance to this God of the philosophers, removing him  from the purely academic realm and thus profoundly transforming him.  This God who had previously  existed as something neutral, as the highest, culminating concept; this God who had been understood as pure Being or pure thought, circling round for ever closed in upon itself without reaching over to man and his little world; this God of the philosophers, whose pure eternity and unchangeability  had excluded any relation with the changeable and transitory, now appeared to the eye of faith as the God of men, who is not only thought of all thoughts, the eternal mathematics of the universe, but also agape, the power of creative love.  In this sense there does exist in the Christian faith what Pascal experienced on the night when he wrote on a slip of paper which he henceforth kept sewn in the lining of his jacket the words" "Fire. 'God of Abraham, God of Issac, God of Jacob', not 'of the philosophers and scholars'."  He had encountered the burning bush experience, as opposed to a God sinking back completely into the realm of mathematics, and had realized the the God who is the eternal geometry of the universe can only be this because he is creative love, because he is the burning bush from which a name issues forth, through which he enters the world of man.  So in this sense there is the experience that the God of the philosophers is quite different from what the philosophers had thought him to be, though he does not thereby cease to be what they had discovered; that one only comes to know him properly when one realizes that he, the real truth and ground of all Being, is at one and the same time the God of faith, the God of men." (pp. 99-100).

June 11, 2017 | Permalink

Friday, June 9, 2017

For Trinity Sunday, God For Us (book excerpt)

I recently had occasion to revisit God For Us: The Trinity & Christian Life, by Catherine Mowry LaCugna. I thought I'd share a brief excerpt in anticipation of the upcoming Trinity Sunday:

Christian theism has been severely criticized of late because it is said to be projective (Feuerbach, Freud); sexist, patriarchal, and clerical (feminism); bankrupt (atheism; death of God); static (process thought); ideological (liberation theology); nonreferential (analytic philosophy). In effect, these critiques testify to the deleterious outomce of the Christian doctrine of God that is in many respects secular, constructed out of philosophy, not out of the self-revelation of God in Christ. The root of the nonsoteriological doctrine of God is its metaphysics of substance: the pursuit of what God is "in se," not what God is 'in Godself' or 'by Godself.' All of the critiques of classical theism cry out for soteriology: Can we believe in God after Auschwitz? Can a male savior save women? Does God's justice prefer the rich and powerful? Can God respond to petitionary prayer? Does belief in God inhibit the full development of human persons? Does God predetermine the fate of individuals, and is freedom illusory? All these questions are at base questions about the character, the 'who' of God. Theology ought to be able to answer them. Theology cannot answer them by taking refuge in the classical metaphysical properties of God, such as omnipotence, omniscience, omnibenevolence, impassibility, incorporeality, and simplicity, since these are the very attributes that seem dubious. The only option is for Christian theology to start afresh from its original basis in the experience of being saved by God through Christ in the power of the Holy Spirit. The only option for Christian theology, in other words, is to be trinitarian.

June 9, 2017 in Walsh, Kevin | Permalink

Thursday, June 8, 2017

Sen. Sanders Seeks to Establish Universalism

Professor Kathleen Sullivan once wrote that the First Amendment's provisions on religious freedom and equality reflect "a substantive recognition that there is more than one path to heaven and not as many as once thought to hell." To which Michael McConnell responded: "That is not the disestablishment of religion. It is the establishment of Unitarian-Universalism." (From The Bill of Rights in the Modern State 124 n.50 (U. Chicago Press 1992).

That phrase applies to Bernie Sanders' criticism of Russell Vought, nominee for deputy director of the Office of Management and Budget, for having posted online statements that Muslims "stand condemned" and "do not know God because they have rejected Jesus Christ his Son." From Huff Po:

Such a statement is “indefensible, it is hateful and Islamophobic, and an insult to over a billion Muslims throughout the world,” Sanders told the room. He asked Vought, who sat facing him, if he thinks his past comments are Islamophobic.

“Absolutely not,” replied Vought, a former vice president of the conservative Heritage Action for America. “I’m a Christian, and I believe in a Christian set of principles based on my faith. That post … was to defend my alma mater, Wheaton College, a Christian school that has a statement of faith that includes the centrality of Jesus Christ for salvation.”

Sanders interjected, “Do you believe that people in the Muslim religion stand condemned?” ...

“Senator, I’m a Christian ... ,” Vought began again.

“I understand that you are a Christian!” Sanders shouted. “There are other people of different religions in this country and around the world. In your judgment, do you think that people who are not Christians are going to be condemned?”

Vought said he respects all people and repeated that he wrote his post based on being a Christian. That was it for Sanders.

“I would simply say, Mr. Chairman, that this nominee is really not someone who is what this country is supposed to be about,” Sanders said, gathering up his papers. “I will vote no.”

Believing that one's religion is the only way to God is quite common and surely should not in itself disqualify someone from office. Making that alone the basis for disqualification violates the principles of the Free Exercise Clause, the Religious Test Clause (for federal offices like those in OMB), and the Establishment Clause--by, as McConnell pointed out, establishing universalism as the only permissible religious opinion for federal officials. 

(As I understand the context of Vought's views, he was defending Wheaton College's decision to fire Larycia Hawkins, a professor, for stating that Muslims "worship the same God" as Christians do. In that context Vought, a Wheaton alum, argued that the college could fire her because one cannot worship the same God--not even deficiently--without approaching God through Christ. My own views on that question, expressed here on MOJ, are almost certainly closer to Prof. Hawkins's than to Mr. Vought's. But the issue is not which view of God and salvation is theologically accurate; it is whether Vought should be disqualified from this office for his view.) 

Religious beliefs criticizing or condemning other faiths are relevant in some cases. It would be relevant if Vought had written that Muslims as a group cannot  be trusted as citizens because of their religion (claims we unfortunately see all too often). But that form of criticism/condemnation concerns civil status and participation, not religious salvation. The civil equality of religions under the First Amendment does depend upon officials avoiding blanket statements that members of a faith cannot be trusted as citizens, because it's short step from such statements to treating people unequally in civil matters. (Probably a short enough step to justify voting against any nominee who wrote that Muslims can't be trusted.) But Vought said that Muslim citizens are entitled to equal respect; he made clear, in his post and his attempts to answer Sanders, that he was speaking about theological not civic matters--about the nature of God, worship, and the way to salvation. And the First Amendment rests upon bracketing such theological disputes, neither punishing nor favoring people for their varying views. Without such bracketing, those with non-pluralistic beliefs on ultimate matters will themselves face civil restrictions and discrimination. A belief that another person is condemned in an ultimate sense might lead one to mistreat or disrespect them in civic matters, but surely not necessarily so. People with such non-pluralistic theological beliefs live and work with others respectfully day after day in myriad settings (partly because they believe that it is not a matter of comparative merit--that all, even nominal Christians, are condemned in an ultimate sense unless they rely on Christ).

If the nominee is to be working in a field where his or her attitude toward another faith is relevant, even a publicly expressed belief about ultimate matters could well interfere with performing the job. You certainly could vote against confirming an ambassador to Saudi Arabia who expressed Vought's view about Muslims and salvation. But unless I greatly misunderstand things, beliefs about ultimate salvation are irrelevant to ability to do the work of the OMB. Thus to vote against someone for OMB is simply a penalty on his belief, a bare religious test for a federal office, and a statement that universalism is the orthodox view on religious salvation.

Fear and prejudice toward Muslims is a significant problem in our country. But the resistance to it should take the form of guaranteeing civic equality, and countering true hate, not imposing disabilities solely for views about theological matters. Belief that a religion is false, and cannot lead one to God or ultimate salvation, can coexist with respect for the equal dignity of its members. If we assume that the two cannot coexist, we will start reinjecting the government into controversies about ultimate matters that our religious-freedom tradition has wisely sought to avoid.

June 8, 2017 in Berg, Thomas, Current Affairs | Permalink

Tuesday, June 6, 2017

JPII distinguishing nationalism and patriotism at the UN in 1995

In trying to understand Steve Bannon's outlook recently, I found myself wondering how it cohered with Catholic teaching about nations and peoples. That teaching, I think, is easier to understand than Bannon's outlook, if only because one must rely on reporting about Bannon. In any event, an important Catholic perspective on nationalism can be found in John Paul II's October 5, 1995 Address to the United Nations.

I was a sophomore in college that fall, and I remember one of my college chaplains remarking that Pope John Paul II's observations about the rights of nations were important. So I went and looked it up this evening. It's worth reading. 

Extended excerpt after the jump:

Continue reading

June 6, 2017 in Walsh, Kevin | Permalink

To Rob: It's Much Worse Than You Think

Of course Rob is right just below to put serious questions to the view that we are resolutely not to judge when it comes to professional and other cultural values, and not to "impose" "our" values on law students as we acculturate them into the legal profession.

He is right because law is all about values and their imposition on others. Law may not be command pure and simple, but much of it is command. And even the part that is not command presupposes and incorporates moral views and dispositions at every level, to include evaluations of the proper scope of moral disagreement within the profession and the culture at large. If you are not interested in good (i.e., moral) governance, law is not for you. There is no line between the values that a law instantiates that are "moral" and those that are not. They are all moral.

The trouble is that anti-legal moralism dies very hard, dating all the way in our own tradition from the fight between Stephen and Mill and right on through to the present, a fight that the legal moralists have been widely proclaimed to have lost. Many students, in particular, have been raised on a soft and not well thought-through moral libertarianism that forces and reinforces all kinds of morality onto and into students--but does so sub silentio with the pretense of not being a morality at all. That ostensible moral libertarianism in law--itself a legal moralism--infuses much of the law, including, very much, the doctrines of the First Amendment (but many others too), and much of the instruction in law school. It's time we stopped talking about moral neutrality--in law and in law school--and started talking about the way the law, and the way that law schools, do, and should (two different sets of discussion), privilege certain moral positions and downgrade others.

But that will require a good deal more than forcing clinic and other offerings--most of which do, in fact, reflect very specific ideological commitments and which are, as John McGinnis has put it, "enterprises of political action"--down the throats of students pro bono publico. It will require, first, turning a highly critical eye on the existing frameworks, and, second, forging a shared sense of pro bono publico from the fragments one can see adumbrated in the disagreement between Rob and his interlocutor.

June 6, 2017 in DeGirolami, Marc | Permalink

Monday, June 5, 2017

Imposing on law students' "moral independence"

DePaul law prof Julie Lawton has posted a new article, “Teaching Social Justice in Law Schools: Whose Morality is It?” Professor Lawton argues that “requiring law student participation in pro bono and legal clinics serving the indigent, as a condition of their graduation, is an improper imposition of my personal social justice morality upon my students.”  She explains:

When there are a limited number of legal clinics at each law school and the majority of those legal clinics are serving low to moderate-income clients, mandating legal clinics is akin to mandating participation in social justice issues, similar to mandatory pro bono service. This mandate of social justice service suggests an unwarranted imposition on a student’s moral independence.

An imposition on “a student’s moral independence?” I always assumed that one core purpose of a profession is to identify and maintain prudent impositions on its members’ “moral independence.”  If independence from such fundamental (I thought) moral claims as serving the poor is a virtue to be cultivated among our students, should we also avoid requiring them to participate in any exercise that may risk inculcating within them a respect for the rule of law or commitment to personal integrity?  And should we be urging the ABA to pull back from its insistence on imposing particular views on the wisdom of confidentiality, competence, diligence, and candor?

Should law faculty proceed carefully when teaching contested moral and political issues to make sure that students are exposed to the best arguments on all sides? Absolutely.  That's a worthy pedagogical objective to ensure that we're training critical thinkers who are effective advocates.  It's not about equipping our students for lives of "moral independence," whatever that means.  Navigating our biases effectively as teachers does not mean that a law school needs to avoid staking out a position on the basic moral norms that contribute to the animating vision for a particular school or the profession as a whole. We should be explicit and deliberate in discerning and conveying those basic moral norms.  This is (I hope) obvious for those of us who work at Catholic law schools, but the conversation about moral norms shouldn't be absent from non-religious law schools either.  Such conversations are a big part of what it means to be a profession.

June 5, 2017 in Vischer, Rob | Permalink

Some thoughts on today's church-plan case

Today, the Supreme Court handed down a unanimous ruling, in a case called Advocate Health Care Network v. Stapleton, interpreting a particular provision of the federal employee-benefits statute, ERISA. Justice Kagan's opinion is a clear, engagingly written, concise, and technically sound example of the judicial craft. It also vindicates Congress's important effort to protect the religious freedom of religious hospitals, charities, and social-welfare institutions and has clear implications for ongoing debates about these institutions' religious liberties, about the freedom of conscience in the healthcare context, and about the separation of church and state.
 
The provision at issue in Monday's ruling had a clear purpose: to respect the important contributions that religious institutions, including hospitals, make to the common good and to keep government officials out of the business of deciding which institutions are 'really' religious and which are not.  Congress was affirming the bedrock principle that religious freedom and exercise are not limited to private prayer or weekend worship; rather, they include providing care to the sick, the poor, and the vulnerable.
 
For several years, activists and class-action lawyers have worked to convince courts to interpret Congress's effort narrowly, in a way that would have imposed significant costs on religious institutions and undermined their faith-inspired social-welfare activities.  The Court's decision both affirms and embraces Congress's sound judgment, decades ago, to prevent regulators from trying to enforce a line between what 'churches' do in private and what religious institutions do in the public square.
 
Increasingly, it is being argued that the distinctive mission and character of religious institutions should lose legal protection when these institutions are involved in providing health care, or work to provide adoption services or foster care, or cooperate with government to solve problems of poverty, human trafficking, education, and so on.  Many believe that these institutions should not be allowed to object, as a matter of religious conscience to -- for example -- providing abortions or abortion referrals.  And while it is primarily the job of Congress and other legislators to protect these institutions' religious-conscience rights, today's decision by the Court is a welcome and well-crafted vindication of one such effort.

June 5, 2017 in Garnett, Rick | Permalink

"When the Ku Klux Klan Tried to Shut Down Religious Schools"

A helpful reminder from Prof. Thomas Kidd about the context of the Pierce v. Society of Sisters case and, let's be candid, about the roots of too much of today's opposition to school choice.  My only quibble might be with the headline, given that the Klan had no problem with "religious" public schools (i.e., the "public" schools of the day were not, in today's terms, "secular").

June 5, 2017 in Garnett, Rick | Permalink

Thursday, June 1, 2017

Remembering the Logos at the Heart of the University

This week, the Wall Street Journal published an op-ed by Bret Weinstein, a biology professor at Evergreen State College. Weinstein tells the now familiar tale of irascible student protests (responding to his pleas for reasoned debate about race on campus). This portion of his piece is especially noteworthy as a general critique of the structure of the modern university and what it has wrought for today's students (emphasis mine): 

[T]he protests resulted from a tension that has existed throughout the entire American academy for decades: The button-down empirical and deductive fields, including all the hard sciences, have lived side by side with “critical theory,” postmodernism and its perception-based relatives. Since the creation in 1960s and ’70s of novel, justice-oriented fields, these incompatible worldviews have repelled one another. The faculty from these opposing perspectives, like blue and red voters, rarely mix in any context where reality might have to be discussed. For decades, the uneasy separation held, with the factions enduring an unhappy marriage for the good of the (college) kids.

One could get discouraged as this news becomes the new normal at college and universities around the nation. So, in these final days of Easter, I wanted to pass along reasons for hope:  new—and old—voices, offering not critique of the current climate so much as alternatives ripe for revitalization. (I well acknowledge that I spend much of my day alone in my home study, entirely free of university shenanigans or the pressures that come with tenure-seeking, etc. And, happily, the latter part of my days is spent with my children who are blessed to be receiving a first-rate classical education at St. Benedict's outside of Boston - where we were recently encouraged by George Weigel's remarks on these topics at our annual auction.) 

In The Idea of the University, Cardinal Newman beautifully articulates the very purpose of such an institution, implicitly devastating the silo-ing of disciplines about which Weinstein insightfully casts much of the blame for today's woes:

It is a great point then to enlarge the range of studies which a University professes, even for the sake of the students; and, though they cannot pursue every subject which is open to them, they will be the gainers by living among those and under those who represent the whole circle. This I conceive to be the advantage of a seat of universal learning, considered as a place of education. An assemblage of learned men, zealous for their own sciences, and rivals of each other, are brought, by familiar intercourse and for the sake of intellectual peace, to adjust together the claims and relations of their respective subjects of investigation. They learn to respect, to consult, to aid each other. Thus is created a pure and clear atmosphere of thought, which the student also breathes, though in his own case he only pursues a few sciences out of the multitude. He profits by an intellectual tradition, which is independent of particular teachers, which guides him in his choice of subjects, and duly interprets for him those which he chooses. He apprehends the great outlines of knowledge, the principles on which it rests, the scale of its parts, its lights and its shades, its great points and its little, as he otherwise cannot apprehend them. Hence it is that his education is called "Liberal." A habit of mind is formed which lasts through life, of which the attributes are, freedom, equitableness, calmness, moderation, and wisdom; or what in a former Discourse I have ventured to call a philosophical habit. This then I would assign as the special fruit of the education furnished at a University, as contrasted with other places of teaching or modes of teaching. This is the main purpose of a University in its treatment of its students.

In recent years, Bishop Barron has explored with characteristic intelligence and aplomb just how the intelligibility that grounds all reality makes the search for knowledge and truth even possible, across all disciplines. I'd especially recommend this 2011 lecture at the University of St. Michaels, but all of his lectures are top-shelf.

The Lumen Christi Institute has recently made available online a lecture at the University of Chicago by Professor Jared Ortiz. It is an admirably clear exploration of classical liberal education, especially as he compares the traditional approach with the more recent Great Books revival. Ortiz recounts his own transformation at Chicago under the tutelage of Leon and Amy Kass (who “trained his loves”), as well as Paul Griffiths. Ortiz, like Bishop Barron, points to Christ the Logos as the principal of all intelligibility, and thus suggests, in conclusion, that the liturgy ought to properly be at the 'heart' of the 'core' curriculum.  

Finally, I'm about half way through Senator Ben Sasse's book, The Vanishing American Adult. It's excellent - but what is especially encouraging to me is that this learned statesman, en route (one hopes) to a presidential bid in coming years, would pen a book devoted entirely to the rearing and education of young children. A topic once considered essential by the most influential thinkers in history (Plato, Aristotle, and Rousseau come immediately to mind) was strangely downgraded more recently. Sasse, a Yale-trained historian, well understands that the intellectual and moral formation of the young is the most crucial work of a civilization that hopes to persist (and thrive!). Here’s a taste of the book in an interview with Bill Kristol. But read the book – and be heartened that a man concerned about these important matters sits in the upper chamber of Congress. I am. 

June 1, 2017 in Bachiochi, Erika | Permalink

Tuesday, May 30, 2017

A Conversation with Cardinal Peter Turkson

If you are in the DC area tomorrow evening, you might be interested in attending a Conversation with Cardinal Peter Turkson, the head of the new Vatican Dicastery for Integral Human Development, on "Vatican Perspectives on Care for Creation, Economic Injustice, the Refugee Crisis, and Peace." Details and registration are here.  John Carr, Director of Georgetown University's Initiative on Catholic Social Thought and Public Life, has organized this public event in connection with a convening of US Academic Centers on Catholic Social Thought.  Should be a very interesting couple of days in DC!

May 30, 2017 in Schiltz, Elizabeth | Permalink

A disquieting observation about the Fourth Circuit's en banc immigration decision

The typical law student has a tendency to think he or she has performed worse on exams perceived as harder and better on exams perceived as easier. But often the opposite is the case. Thinking that one may have done poorly because the examination seemed so hard is sometimes a sign that one has performed well.

One of my law school professors (I think it was Dan Meltzer, but I'm not sure) gave an explanation of this phenomenon that made sense to me. Exams seem hard when the exam-taker has perceived the hard issues raised by the exam. Exams that seem easy may only seem that way because the exam-taker has missed the hard issues entirely.

I'm reminded of this phenomenon in reading the Fourth Circuit's en banc immigration decision. The decision seems legally wrong for reasons set forth in Judge Niemeyer's dissenting opinion, the government's briefs, and online writings by Josh Blackman, Ilya Shapiro, Marc DeGirolami, and others. Go find and read those if you are interested in the technical legal analysis. But don't forget that good legal analysis often is technical.

Most troubling to me, though, is the seeming confidence of the majority opinion that comes through in the language it uses as it deploys modern Establishment Clause doctrine. The reason that is troubling is traceable to one of the best law review articles I've read.

In *A Political History of the Establishment Clause,* 100 Mich. L. Rev. 279 (2001), John Jeffries and Jim Ryan offer precisely what their title suggests. Go ahead and read it. It will probably make you miserable if you really care about the law part of constitutional law. But it will also make you wiser.

If you're an anti-anti-Catholic, you might also--and appropriately--be more worried about judicial decisions finding Establishment Clause violations.

May 30, 2017 in Walsh, Kevin | Permalink

Thursday, May 25, 2017

Serving Students with Disabilities in Catholic Schools

One of the greatest privileges of serving on the Board of the National Catholic Partnership on Disability is learning from my talented and committed fellow board members.  Two of them (Michael J. Boyle, Director, Andrew M. Greeley Center for Catholic Education, School of Education, Loyola University Chicago, and Pamela R. Bernards, Director for Professional Development, National Catholic Educational Association) have just published a fantastic white paper entitled One Spirit, One Body:  An Agenda for Serving Students with Disabilities in Catholic Schools, available here.

Some interesting findings:

Despite the fact that private schools are not required to legally comply with the least restrictive environment mandates of the Individual with Disabilities Education Improvement Act (IDEIA), there is evidence to show that Catholic schools are responding to the Church’s challenge to serve students with disabilities.

The principle findings of the USCCB (2002) study, Catholic School Children with Disabilities, found that nationally, 7 percent of children enrolled in Catholic schools are children with disabilities, compared to 11.4 percent enrolled in public schools. When comparing disability types, Catholic schools enroll a greater percentage of children diagnosed with hearing impairment or deafness, developmental delay, speech/language, uncorrected vision impairment or blindness, traumatic brain injury, and other health impairments than public schools (USCCB, 2002: p. 11). Huppe (2010) notes that other disability categories such as mental retardation, autism, and emotional disorders have a “significantly lower representation in Catholic schools than in public schools.”

Boyle and Bernards offer great suggestions for dealing with some of the challenges of including students with disabilities in Catholic schools.  They acknowledge the tension felt by many Catholic schools between wanting to serve students with disabilities and the financial burdens of doing so, but remind us that:

. . .the United States Catholic Bishops have stated:
Costs must never be the controlling consideration limiting the welcome offered to those among us with disabilities, since provision of access to religious functions is a pastoral duty (USCCB, 1998, p.2).
“The focus on the inequities in funding between public and private schools often provides an opportunity to justify the inability to provide services for children with special needs” (Moreau, Weaver, R. Davis, S. Landers M. 2006). However, the failure to serve students with disabilities in Catholic schools may actually be “due to an underlying belief on the part of many Catholic educators that children with special needs would be better served elsewhere” (Moreau et al., 2006). In many instances, it has been an assumption that the responsibility for the education of students with disabilities lies in the public school domain, whereas Catholic education encompasses so much more than just academic preparation. Catholic education offers spiritual formation, a faith community and a sense of belonging to the larger church which cannot be replicated within the public school setting. Certainly, the Bishops have noted the value in the interaction between those individuals with disabilities and those without. In such an interchange, “it is often the person with a disability who gives the gift of most value” (USCCB, 1998). Educating individuals with disabilities within the Catholic school setting helps those without disabilities to see the real world reflected in their school, creates a sense of normalization that disability is a part of life and helps to minimize the stigma of disability.

 

May 25, 2017 in Schiltz, Elizabeth | Permalink

Wednesday, May 24, 2017

Call for Papers: "Building Institutions for the Common Good: The Purpose and Practice of Business in an Inclusive Economy"

My colleagues at the Ryan Institute have put out a call for papers for a conference next summer that is sure to be of interest to many MOJ readers.

The Tenth International Conference on 
Catholic Social Thought and Business Education

and

The Sixth Colloquium on Christian Humanism in Business and Society

 

"Building Institutions for the Common Good:

The Purpose and Practice of Business in an Inclusive Economy"

 

University of St. Thomas

St. Paul - Minneapolis, Minnesota

June 21-23, 2018

The common good is a prominent principle and one of the pillars of the Catholic social tradition.  Its origins in Judaism and Hellenistic philosophy were taken up by the early Christian community and reinforced by Christ's commandment of charity, forgiveness, and service. As suggested by its ancient roots, the principle is not exclusive to Christian faith; other religions and philosophical traditions uphold it too. Still, sharing an appreciation for the concept does not remove the important work about the meaning of the common good and its operational and institutional significance in business.  

Scholarly reflections on the common good vary in correspondence with the whole range of existing philosophical, economic, political, and social positions. This is certainly true among leading voices in the development of Catholic social thought -- Jacques Maritain, Neo-Thomism, civil economy, personalism, and Catholic liberalism, among others. What has not been as developed is a tradition of thought that engages the common good with the purpose and practice of business.  This conference is set out to make a contribution in this area.  

As business and its impact have moved into virtually every country and culture on the planet, so have questions about its role in regard to human well-being and to what society holds in common. This makes the common good a subject for reflection in the education of all future business professionals.  There may be as well a particular opportunity and benefit for reflecting on the common good in the context of business education in Catholic universities. Uniquely prepared to address the idea of the common good from a theoretical perspective, Catholic business education is also uniquely positioned to reflect on it as a moral principle for leaders and as an aspirational principle for a business mission.    

This conference on "Building Institutions for the Common Good: The Purpose and Practice of Business in an Inclusive Economy" welcomes participants from multiple disciplines and perspectives ready to engage in a constructive dialogue on the common good and how a growing number of people can participate in the market economy and finance in an equitable, stable, and sustainable way. We take the common good within the Catholic social tradition as our starting point in this discussion.

We are looking for papers in three tracks: broad, organizational and theoretical treatments of the common good; the common good in relation to individual disciplines (marketing, personnel management, strategy, etc.); and curriculum design, materials, and pedagogical approaches for addressing the common good in a business context.

Track One - Exploring the Common Good, Its Meaning and Its Capacity to Inspire and Sustain Ethical Institutions

It is relatively easy to criticize what does not work and even necessary to do so. The much more challenging task is to build a humane and flourishing society. Catholic social teaching has examined property, free and ethical markets, businesses, the rule of law, and the legal protection of workers as some of the institutions that are essential in creating institutions that work. However, the best institutions falter if they are undercut by a lack of individual conscience and social virtue. Thus, Catholic social teaching also repeats demands for virtuosity: structures and institutions alone are not capable of solving the problems that beset society

Topic areas:

  • Theological and philosophical visions of the common good;
  • Markets and the common good;
  • The purpose of business and the common good;
  • Property and the common good;
  • Law and the common good;
  • Interrelation of the common good with other principles of Catholic social teaching;
  • Business and its social and moral frameworks;
  • Business, family life, and the common good;
  • Social value and the responsibility of business;
  • The common good in business ethics;
  • Religious and wisdom traditions on the common good;
  • Philosophy of business and the common good.

Track Two - Exploring the Common Good and Its Relevance for Specific Fields of Management

Principles that are discussed on an abstract level can remain bloodless and unsubstantial. Not infrequently the abstract principles, like the common good, become clear by application in concrete circumstances. We welcome papers that explore the meaning and relevance of the common good in specific fields of management and business, especially (but not exclusively) if they discuss the institutional dimension in fields such as the following:

  • marketing;
  • strategy and governance;
  • managing people in the organization;
  • finance;
  • operations;
  • compliance and regulation.

Track Three - Providing Curricular Materials, Processes, and Ideas that Reflect the Significance and Practical Wisdom of Business and Leadership Reflection on the Common Good

Topic areas:

  • Case studies that address breaches and/or success in managerial efforts to create business cultures that address social justice and institutionalize approaches that work;
  • Experiential exercises that examine the question of the common good;
  • Video or computer-based approaches that enhance teaching about the common good;
  • Literature and cross-disciplinary activities that highlight questions of the common good.

In the area of curriculum development, we are specifically looking for syllabi, background notes, and teaching notes that engage the Catholic social tradition and the disciplines of business and liberal education. For examples, please see

http://www.stthomas.edu/cathstudies/cst/curriculum-dev/biz-ed/


Call for Paper Proposals:  

The selection committee is looking for submissions that engage one of the three tracks described above.   Please send a one to two-page single spaced proposal which includes the following: thesis/purpose, outline of paper as well as a one paragraph biography that includes institutional position and affiliation, recent publications, research interest, practical experience.  The best papers will be published. Papers eligible for publication must be in English. Presentations in workshops must also be delivered in English. 

Call for Abstracts and Workshops:

In addition to the classic formula for presentations (max. 25 minutes each: about 15 minutes for the presentation itself and 10 minutes for discussion), workshops in groups may also be proposed, with brief talks and an immediate discussion of ideas. We will admit arguments that seek to find connections between the other participants and small groups already engaged in a specific topic. Presentations of professional activities and educational experiences are also welcome. 

Conference Background Papers and Annotated Bibliography:

Conference background papers and an annotated bibliography for this meeting will be available for your reference by June 1, 2017 at http://www.stthomas.edu/cathstudies/news/commongood/. The annotated bibliography will be periodically updated.

 

Send proposals by November 1, 2017 to: Fr. Martin Schlag at cathsocial@stthomas.edu.

Conference Organizers:

  • The John A. Ryan Institute, University of St. Thomas
  • MCE (Markets, Culture and Ethics) - Research Centre of the Pontifical University of the Holy Cross, Rome
  • The Veritas Institute, University of St. Thomas

Conference Registration fee: $350. Registration will begin October 1, 2017 at http://www.stthomas.edu/cathstudies/news/commongood/.

 

 

May 24, 2017 in Schiltz, Elizabeth | Permalink

"Objection to Conscience: An Argument Against Conscience Exemptions in Healthcare"

That's the title of a paper posted to SSRN by Alberto Giubilini (of "After-Birth Abortion" fame).  Here's the abstract:

I argue that appeals to conscience do not constitute reasons for granting healthcare professionals exemptions from providing services they consider immoral (e.g. abortion). My argument is based on a comparison between a type of objection that many people think should be granted, i.e. to abortion, and one that most people think should not be granted, i.e. to antibiotics. I argue that there is no principled reason in favour of conscientious objection qua conscientious that allows to treat these two cases differently. Therefore, I conclude that there is no principled reason for granting conscientious objection qua conscientious in healthcare. What matters for the purpose of justifying exemptions is not whether an objection is ‘conscientious’, but whether it is based on the principles and values informing the profession. I provide examples of acceptable forms of objection in healthcare.

This is, I think, the way things are going.  Those who acquire the power to (re)define the "principles and values informing the profession" will, increasingly, do so in a way that renders un-"acceptable" Christian commitments and practices and excludes those with such commitments from the professions (including law).  

If you haven't read Legutko, I suggest you do.

May 24, 2017 in Garnett, Rick | Permalink

Tuesday, May 23, 2017

Dugan reviews Dreher's "Benedict Option"

My friend and former student Conor Dugan has this review up, at Catholic World Report, of Rod Dreher's The Benedict Option.  It's worth a read.  I think Conor's does a better job than most reviews of "getting" what (it seems to me) Dreher is proposing.  In keeping with what many of us here at MOJ have been writing for years, Conor hones in on the centrality of anthropology:

The first chapters of The Benedict Option are largely diagnostic, an assessment of where we are and how we got here. Contrary to critics of the book, Dreher’s diagnosis is not overly pessimistic or declinist (nor is it, as one virtue-signaling academic claimed, a lament for a white-Christianity that is no longer), but realistic. Indeed, while I can understand criticisms of Dreher’s proposal for how we ought to respond to the barbarism that we face, for the life of me, I cannot understand how people can reject his assessment of the world as it is now. We might not like it, but the portrait Dreher paints seems largely accurate. ...

We've forgotten what nature is—the sheer givenness of nature and its intrinsic meaning and intelligibility. As Pope Benedict stated beautifully in his last Christmas address to the Curia as Pope:

[T]he attack we are currently experiencing on the true structure of the family, made up of father, mother, and child, goes much deeper. While up to now we regarded a false understanding of the nature of human freedom as one cause of the crisis of the family, it is now becoming clear that the very notion of being – of what being human really means – is being called into question. . . . [S]ex is no longer a given element of nature, that man has to accept and personally make sense of: it is a social role that we choose for ourselves, while in the past it was chosen for us by society. The profound falsehood of this theory and of the anthropological revolution contained within it is obvious. People dispute the idea that they have a nature, given by their bodily identity, that serves as a defining element of the human being. They deny their nature and decide that it is not something previously given to them, but that they make it for themselves.

May 23, 2017 in Garnett, Rick | Permalink

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