Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

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Friday, April 24, 2015

Roundtable, "The Catholic Legal Theory Project: Concept and Goals"

The Scarpa conference is winding down with a Roundtable conversation, involving all ten (!) of the participants.  For starters . . . is there a tension between, on the one hand, talking about "creating conditions" for exploring ideas and, on the other, Patrick Brennan's critique of "dialogue" as that term is sometimes used.  Rob and Marc say, "not necessarily."  One can emphasize the importance of "exchange of ideas" in the educational context (and the law-school context) while at the same time sharing Patrick's concern that "dialogue" becomes, as he put it, the object of "worship" rather than a way of interacting and a means to or method for an end.

But, for the law, anyway . . . what is that end (Tom asks)?  Is it the goal or purpose of human law to bring people, in Patrick's words, to "salvation in Jesus Christ?"  It is, Patrick insists, to "create conditions" -- to the extent circumstances permit -- "conducive to the supernatural common good."  Shifting to law schools, Michael Moreland says that the project of Catholic law schools cannot be entirely a project of evangelization; academic excellence will and does matter.  At the same time, as John Breen and others emphasized, "academic excellence" should not be understood entirely apart from the Catholic mission and character of these schools. 

What is the role, post-2008, of the Catholic legal scholar, doing Catholic Legal Theory, at a Catholic law school?  (Dean) Rob Vischer takes this as an important and difficult question.  Our scholarship has to matter to (even if not only to) the student experience and students' success and outcomes.  Otherwise, it is difficult to justify the use of (in effect) students' resources to subsidize that scholarship.  Patrick responds by noting that no one forces students to pay for legal scholarship; they can attend schools where faculty are not expected to engage in scholarly activities and work.  (He then illustrates and elaborates with some stories about Henry Monahan.)   And, Marc and Lisa recalled ways in which their scholarship -- in Law and Religion, or in Catholic feminist theory -- enriched their teaching and relationships with children.

Tom Berg recalled to Rob Vischer the fact that he (Rob) had said in his own talk that the value of Catholic Legal Theory is that it is true.  That's reason enough -- more than! -- for faculty to engage in such scholarship.  And if a socialist can be expected to subsidize Law and Economics scholarship, there would not seem to be anything strange about expecting law students to pay also for the scholarship of those who are engaged by and with Catholic Legal Theory.  (Marc wonders, though, if a line of inquiry has to be true, or believed to be true, in order to be a worthy academic endeavor.)

Michael Scaperlanda shifted gears . . . what does this project mean outside the law schools, in practice and for practitioners?  A member of the audience suggested that maybe we should, in law schools -- in order to better prepare advocates -- spend more time understanding the actual substantive claims, including religious claims, that will often motivate clients.  As Kevin notes, though . . . it is not always the case (perhaps not even often the case) that the faculty in Catholic law schools are equipped to prepare students in this way.  Sounding a similar note, Michael Moreland warned about "extrinsicism" in the treatment or introduction of "Catholic" materials.  But again . . . what is the "impact" of Catholic Legal Theory on the practice of law?  Marc suggests there isn't much, in terms of how one files one's briefs, etc.  But . . . what about how one balances one's work and personal life, how one treats one's family and friends (and clients and co-workers)?  Here, the impact can be real and significant.  Patrick, recalling Judge Noonan's work and example, noted that Catholics have particularly good reasons for understanding and appreciating what law is and does to people (see Persons and Masks of the Law) and so he thinks that highlighting the human and personal dimensions of these materials is a good way to be a Catholic law teacher.

Now . . . what about Mirror of Justice?  What's it about?  What's it for?  What has it done and what could it do better?  (One suggestion:  More Chesterton!  Indeed.  And more cowbell?)  Does it have value and, if so, what it is?  Michael suggests that, perhaps, the blog sometimes lacks a focus (or when focus comes, it's on particular elections).  Susan hopes we can find more ways to get active discussion and dialogue going among the bloggers.  Rob wonders if the blog-form is being eclipsed by even more "short form" media -- A 500 word post takes a lot more time to write, and to read, than a 140 character Tweet.  John points out that, despite the blog's opening post, the substantive focus of the blog has perhaps narrowed (maybe in response to the times and events) to religious-freedom questions.  Lisa also recalled that part of the "original mandate" was not to zero in on First Amendment questions or "hot button" social issues.  Of course, as Marc pointed out ("pedantically," he says), the blog (like any blog) needs content.  ("Feed the beast!")  This need makes it the case that it's better for people to feel free to post -- and to actually post -- in a kind of free-form and fresh way.  Kevin observed that people sometimes miss the fact that blogs can be about "quick hits" or about stay-a-while engagement.  And . . . the content stays "out there," for a while, and people might find the thoughts we leave years later.

Thanks very much to Villanova, to John Scarpa, and to Patrick Brennan for hosting!


April 24, 2015 in Garnett, Rick | Permalink

Bishop Braxton on racial justice

Changes in laws and practices governing civil rights have often been advanced by members of the faith community, both lay and religious. In a speech given this week at Georgetown, Bishop Edward Braxton challenged Catholics to make our churches more welcoming to people of color, and for religious leaders “to take a more active role in bridging the racial divide, especially between young African-American men and white representatives of the law." More of Bishop Braxton's reflections on how the Church might foster racial unity--as well as his thoughts on recent officer-involved deaths of African American men--can be found in his recent pastoral letter The Racial Divide in the United States: A Reflection for the World Day of Peace 2015.  

April 24, 2015 | Permalink

Walsh on Marius Victorinus (!) at Mirror of Justice

Last but not least . . . Kevin Walsh on "Marius Victorinus at MOJ."  He opens with Judge Noonan's rule for dealing with religious-freedom scholarship and scholars, namely, that they and we are all situated persons with genealogies, histories, commitments, goals, etc.  So . . . Kevin blogs.  How is blogging -- at Mirror of Justice in particular -- relevant to "professing law"?

Kevin then did a close analysis of MOJ's opening post and "mission statement" and emphasized (drawing on, among other things, Ratzinger's Introduction to Christianity) the "Marian strand" of that mission.    And, he asked, why might it be important to a group of Christian law professors that St. Augustine was moved and inspired by the fact (see Confessions) that the philosopher Marius Victorinus became a Christian?  For us, as for Victorinus, the "idea alone" is not enough; he (and we) need the Church, which is not just an organizing principle for ideas.  And, maybe it matters to people -- those who read what we write or learn from us in classes -- that we participate (and are known to participate) in a community and that we "reflect some light into the dark places of this world."

Kevin closed with a nice remembrance of Dan Markel who -- in Will Baude's words -- "made you a little more fearless when he took your ideas seriously."  We can do that for each other (and he used his own area of federal jurisdiction as a possible example of where this can happen).


April 24, 2015 in Garnett, Rick | Permalink

Stabile on "Evangelii Gaudium and Catholic Legal Theory"

Susan's remarks on Evangelii Gaudium fit nicely with Michael Moreland's earlier talk on "Pope Francis and the Project of Catholic Legal Theory."  A crucial starting point:  Our work to develop a Catholic Legal Theory is not and cannot be separate from the Great Commission, from the mission of evangelization to which all Christians, like the Church, are called.

Susan starts with the word "joy" -- which appears more than 100 times in the document -- and reminds us that Pope Francis has insisted that all we do as Christians -- and this would include the development and study of Catholic Legal Theory -- must be animated by joy.  This is relevant to questions, for example, about how we do what we do.  Relatedly, we are called to be "beacons of hope in troubled times."

Also, it's not enough to learn or write about Christ; it is essential to encounter Him.  Another theme in the document is the communal, and not only the solitary, nature of that encounter.  So, do we Catholic legal scholars do all that we can and should to collaborate and cooperate?  Additionally, "who do we speak to, and how?"  We cannot speak only to ourselves, in small circles of friends.  We have to run the risks that come with face-to-face encounters with others, and the risks of suffering that can come as a result of personal attacks, and the risks of the distortion that will sometimes hamstring our efforts.

Another, unifying or overarching, theme:  Mercy, as the greatest of the virtues.  Justice is part of the picture, and must be tempered by mercy.


April 24, 2015 in Garnett, Rick | Permalink

DeGirolami on "Tradition and Catholic Legal Theory"

Marc DeGirolami -- very fittingly -- is talking about the subject of "tradition and Catholic Legal Theory."  He is focusing on a particular challenge, i.e., the fact that Catholic Legal Theory is often regarded, discussed, and presented as part of a "tradition" but . . . fewer and fewer people actually know what that particular tradition is or, indeed, what a(ny) "tradition" is.   "What do we mean by 'tradition' when we invoke it?"  Are we speaking sociologically, historically, normatively . . . ?

Another question:  How much skepticism should we introduce, in our work or to our students, regarding the very idea of tradition and its moral force?  Marc suggests a role for Catholic legal scholars, namely, that they can and should help students to appreciate that "tradition," actually, is not "utter bunk."  We have to create conditions in which the claims and goods of tradition can get a hearing.  We praise innovators -- destroyers! -- and not caretakers and stewards.  (RG:  Interesting that so many who profess to be unattracted to "tradition" are deeply attracted to "sustainability.")

More generally, Marc suggests, our work as law teachers should attend more to tradition in all courses and areas, not just Catholic Legal Theory.  Our law students are entering into a learned profession, after all, and that entering-into goes along with -- at least it should -- an appreciation of and commitment to a certain inheritance.  



April 24, 2015 in Garnett, Rick | Permalink

Berg on the "Relevance and Irrelevance of the Reformation . . ."

" . . . to the Catholic Legal Project, that is."  (We know about its relevance to the history and state of England . . . .  Give us back York Minster, Tom!)  Berg opens with a hat-tip to Admiral Stockdale -- "who am I, and why am I here?" -- and lays some groundwork (drawing from Hunter, Noll, and others) on the interesting and increases places of convergence -- especially with respect to moral and ethical questions -- between Catholics and at least some Protestants.  And (drawing from Massa, et al.) he talks some about some worldview-and-framing differences, including those having to do with communities and institutions, and with dialectic and analogy.

Thesis:  Catholicism is characteristically analogical and Protestantism characteristically dialectical, but both are and should be present in both.  (See this paper of Tom's for an earlier elaboration of something like this thesis in the context of a discussion about Murray and Neibuhr.)  Discussing "the market economy," or "unions," or "democracy," Tom provides examples of how these two forms or kinds of arguments can complement each other.

Tom closes with a discussion of his own area of (great) expertise, namely, the law of religious freedom.  Both distinctively Catholic and distinctively Protestant arguments and emphases are needed, he says, to provide strong and sufficient protections for religious freedom.  Catholic arguments are essential to the religious freedom of institutions and communities, Tom contends.  On the other hand, Protestant arguments might be comparatively more important when it comes to justifying exemptions and accommodations (from anti-discrimination laws, for example).




April 24, 2015 in Garnett, Rick | Permalink

Brennan on "Problematics of Catholic Legal Theory"

Patrick Brennan follows Michael's reflection on Francis with "Problematics of Catholic Legal Theory under the Roman Regime of Novelty (since 1965 or so)."  How does it happen, Patrick asks, that (a) we have a Pope who is enormously popular and that (b) serious observers like Ross Douthat are asking if we are in a crisis, and if "Pope Francis will break the Church"?  Patrick agrees that the Church is in crisis -- "autodemolition of the Church through relentless novelty" -- and understanding this crisis-context is essential to understanding, and doing, the Catholic Legal Theory project.

Many deny, or ignore, this crisis-context, in various ways and with various untenable explanations, rationalizations, or "spurious optimism."  Patrick bracingly presses the group to see, and understand, this context and to confront more clear-eyedly its implications and roots.  Or, quoting Pope Paul VI . . . "Enough!"  The novel "worship of dialogue" is a grave threat, Patrick warns, and can only distract and undermine Catholic Legal Theory (and much else).  The call, instead, is to evangelize and to "make disciples of all nations"; that is, to teach and to do so with authority.

In Patrick's view, the social and other problems that Catholic Legal Theory purports or aims to address can only be addressed constructively if those engaged in the project look back before the Second Vatican Council avoid the distortions of novelty.  The church-state and religious-liberty debates provide, he says, a good example of a context where such looking-back is seriously needed.  The world does need Catholic Legal Theory -- and the Church -- more than ever.

April 24, 2015 in Garnett, Rick | Permalink

Moreland on "Pope Francis and the Project of Catholic Legal Theory"

Next up, Michael Moreland on "Pope Francis and the Project of Catholic Legal Theory."  What contribution is he making to the Project?  He starts in a "negation" mode and warns about overstating the role and importance of the Pope or popes.  "Catholic Legal Theory" can be, but perhaps should not be, excessively refracted through or framed in terms of, the thought of the current pope.

That said . . . what about Francis?  What about the significance of  his being "Argentine," "Jesuit," "Spiritual Director and Religious Superior," "Francis," and "Post-Vatican II"?  Francis has sounded a theme, Michael suggests, of a "theology of encounter":  "Being a Christian is not the result of an ethical choice or a lofty ideal, but the encounter with an event, a person, which gives life a new horizon . . . ."  Pope Francis was also heavily influenced his thought by the experience of the Church in Argentina, and with Peronism, and with Argentinian anti-capitalism and by what Michael calls the Church's "historically fraught relationship to the state."  His role as a spiritual director in the Ignatian tradition is another formative influence:  He has written, for example, about the "fundamental realities" that "we recognize and abhor our sins and their roots in the spirit of the world, and we converse about all this with Jesus 'suspended on the Cross.'"

Michael also shows and talks about some particular paintings and works of art -- including his favorite painter, Chagall -- that have, in interesting ways, shaped and marked Pope Francis, in particular his Marian devotion.  For the future . . . (1) less speculative and more pastoral; (2) anti-liberal (economically); (3) reform from "the periphery"; and (4) new "source churches" in global Catholicism.   


April 24, 2015 in Garnett, Rick | Permalink

Scaperlanda on Catholic Legal Theory and "Assumptions Regarding Liberty"

Michael's talk is called "Challenging the Common Assumptions regarding Liberty."  He reflected on his nearly 3 decades of law teaching and talked a bit about the different courses he teaches, how he teaches them, and what Catholicism and/or Catholic Legal Theory contribute to them.  One of his courses is, in fact, "Catholic Legal Theory" and he sketched the structure and aims of that course and emphasized his efforts to get students to think about freedom, restraint, and liberty, and about how -- drawing on the classic movie Groundhog Day -- being the "sovereign chooser" is not really freedom.  One is more free when one chooses to live for others, and as a gift for others.  But, as Michael recounts, many of his students are afraid to "judge," evaluate, or rank different choices -- in part because of fears about the reality of human frailty and the inevitability of human failure.




April 24, 2015 in Garnett, Rick | Permalink

Schiltz: Who are we talking to, and should they listen?

Next up is Lisa Schiltz, whose paper is called "'You Talkin' to Me?'  Who Are We Talking to?  And Why Should They Listen to Us?"  If Rob was looking at the current landscape, and John was reminding us about the past, Lisa's focus is on the future and, in particular, the future of faculty scholarship in Catholic Legal Theory.

During the past 10 years, three big things have happened:  The collapse of the legal market and its effects on law schools' priorities and budgets; the explosion of the Internet (smartphones, text, social media, etc.) as the primary mode of communication; and a change of the relationship between the Church and the world (one that is marked by, Lisa suggests, a loss of confidence -- and of interest -- in the enterprise of bringing the thought of, say, John Paul II to bear on contemporary issues, questions, and debates).  These three things have caused, or contributed to, something of a retreat from the Catholic Legal Theory project.

However, as Lisa reminds us, one thing that has not changed is the responsibility -- one that the Compendium characterizes as "urgent" -- that Catholic legal scholars and law teachers -- as called lay people in the Church -- have to and in the world.  So, with this responsibility in view . . . what and how should we think about the three changes mentioned earlier?  First, we should be good stewards, and appreciative of those who make possible our scholarly work, and not self-indulgent.  Next, what about blogging, and blogging (etc) as opposed to (and in competition with) traditional legal scholarship?  (She draws from Carr's, The Shallows:  What the Internet Is Doing to Our Minds and talks a bit about the way our means and modes of expression and communication are changing what and how we think.  As she does, I feel sheepish about live-blogging.  And yet . . . .)



April 24, 2015 in Garnett, Rick | Permalink

Breen on "Catholic Legal Theory in Catholic Law Schools: Past and Present"

John Breen (along with Lee Strang) has been doing a lot of interesting and important work on the history of Catholic legal education in the United States.  Now, in his talk, he is presenting some of that work to the group, helping explain how Catholic Legal Theory has, in fact, been instantiated in the structures, practices, and curricula of actual Catholic law schools, past and present.  

He emphasizes, among other things, that -- generally speaking -- Catholic law schools in America were not explicitly founded in order to be vehicles or homes for Catholic Legal Theory, but instead to be means of advancement for Catholic immigrants and to enhance the "prestige" of the various then-new Catholic universities.  But, over time, calls came -- at least at some schools -- for a more distinctively Catholic legal education, and these calls tended to emphasize St. Thomas Aquinas and jurisprudence.  For a few decades, many Catholic law schools were requiring Thomistic jurisprudence courses.  But, by the early 1960s, for various reasons, the Neo-Thomistic "proposal" had "failed" and, at most places, there was a "loss of a distinctively Catholic jurisprudence in the curriculum."   (I had not appreciated the fact that, between 1965 and 1975, the number of law students doubled or thought much about the connection between this development, on the one hand, and the distinctively Catholic character, mission, or curriculum of Catholic law schools, on the other.)  John closes with thoughts inspired by and drawn from Philip Gleason's Contending With Modernity and with questions about what it is (if anything) that could replace Neo-Thomism as the organizing "intellectual architecture" for distinctively Catholic law schools.  Could "Catholic Social Thought" do the job?  John is skeptical.


April 24, 2015 in Garnett, Rick | Permalink

Vischer on Catholic Legal Theory and Catholic Legal Education . . . in tough times

Rob's talk is called "How Should Catholic Legal Theory Matter to Catholic Legal Education in a Time of Retrenchment."  He's asking about Catholic Legal Theory's connection to legal education in three ways:  As a distinctive feature of a law school that helps (or not) to attract applicants and students; as a lens or topic for faculty research; and as an aspect of the curriculum.  Drawing on his own experience as the dean of a Catholic law school -- an intentionally Catholic law school -- Rob is not confident that Catholic legal theory, or a school's Catholic mission more generally, does much work in attracting students (especially in the current difficult times) and he also doubts that faculty research in this field does or can do much to boost rankings or appeal to students concerned about skills, practical matters, and graduating "practice ready."  And, in the curriculum, he discusses (drawing on his experience with St. Thomas's required justice course), it's difficult to incorporate Catholic Legal Theory -- at least explicitly.  It's often seen as not practical, not relevant, and not sufficiently determinate (or perhaps too determinate).

So . . . why should Catholic law schools care about Catholic Legal Theory?  Perhaps because, he suggests, we believe it's true.    And also, explains, because it helps give faculty a sense of their work as vocation and as having a pastoral dimension.

Catholic Legal Theory matters, even in an era of retrenchment, in part because Catholic *law schools* matter, to the common good and not only to those schools' immediate stakeholders.

April 24, 2015 in Garnett, Rick | Permalink

Today at Villanova: The Scarpa Conference on Law, Politics, and Culture

Prof. and MOJ-er Patrick Brennan is welcoming a nice crowd to today's conference, "Catholic Legal Theory:  Aspirations, Challenges, and Hopes."  A moving (for me) journey down memory lane, as Patrick reads the invitation / introduction that launched this blog, more than 11 years ago.  Next up:  Our own Lisa Schiltz, John Breen, and Rob Vischer.   Here's the (wonderful) program.

This morning, a group of us had Mass in Villanova's lovely chapel which features the "Mirror of Justice" stained-glass window that has, for many years, decorated the Mirror of Justice webpage.

April 24, 2015 in Garnett, Rick | Permalink

Thursday, April 23, 2015

Remarks at BYU Commencement

Here is the text of an address I gave today at Brigham Young University's commencement:

* * *

I wish to express my gratitude to the trustees, administration, faculty, and students of BYU for the invitation to be with you for this great celebration of the academic achievements of the men and women who are graduating today, and for the honor you are conferring on me.  And I offer my heartiest congratulations to the graduates and to the families whose love and support sustained them through these years of study.

There are traditions of thought that propose a radical separation of faith and reason.  “What,” they ask, “has Athens to do with Jerusalem?”  Although notable Christians, from Tertullian to Kierkegaard, have associated themselves with such traditions, they have not gained ascendancy in the larger Christian community. The mainstream of Christianity, while fully cognizant of what theologians describe as “the noetic effects of sin”—that is, the way in which our fallenness not only weakens the human will but also darkens the intellect—proclaims the harmony of faith and reason, and the need for faith to seek and be informed by understanding.

In the words of Pope John Paul II, the philosophy professor who became Pope and who has now been canonized as a saint, “faith and reason are the two wings on which the human spirit ascends to contemplation of truth.”

The “two wings” are not two separate but equal ways or paths to truth.  Just as both wings are necessary, and must be in working order, for the dove or eagle to fly, both faith and reason are necessary for the intellectual and spiritual quest and for the intellectual and spiritual life. And faith and reason do not work separately or independently of one another, but rather together.  Faith and reason mutually entail and require each other. They cannot truly exist—faith cannot truly be faith, reason cannot truly be reason—wholly apart from one another.

This helps to explain why Christianity has built not only majestic cathedrals in which to worship but also great universities in which to study and learn.  The very idea of a university is religious and indeed Christian in its inspiration, conception, and fundamental content.  The greatest modern reflection on the idea of a university—what a university is, what it does, why it does it, how it should do it—is the work of an eminent Christian thinker, John Henry Cardinal Newman.

And today more than ever we need universities that are true to Newman’s vision, universities in which faith and reason work in harmony, accomplishing what could never be accomplished by faith or reason apart from each other.

It is commonly said that universities exist for three purposes:  the creation of knowledge; the preservation of knowledge; and the transmission of knowledge. And this is certainly true. Across the range of disciplines in the arts, sciences, and professional fields, universities should be pursuing these important goals. But there is an additional purpose, and that is what I call the appropriation of knowledge. And it is in respect of this goal that the significance of faith in the cause of learning becomes clearest.

Our aim as scholars and students must be not merely to acquire knowledge, but also to explore, as deeply as possible, its larger, lasting, and even cosmic significance.  We and our students must aspire not merely to know the truth about this or that or the other object of inquiry, but to grasp its meaning.  When we speak, as we rightly do, of viewing or understanding something “in the light of faith,” it is the existential meaning and moral and spiritual significance of our knowing that we are describing or pointing to.  This is what I mean by the appropriation of knowledge; and the true appropriation of knowledge is possible, only against the horizon (or, as we might say, “in the light”) of faith.

For this crucial reason, though it is not the only reason, Mormon or Catholic or Protestant, or Jewish, or Muslim colleges and universities must be more than simply secular universities with religious symbols in the classrooms, or prayers before classes and other events, or lots of religious activities on campus. Faith must play a key role in the intellectual life of the college or university. Faith must inform the curriculum and help to shape the questions we explore in our courses and scholarly research.

A pitfall to avoid is the aspiration of a religious university to be “the Mormon Harvard” or “the Catholic Princeton,” at least where that aspiration entails mimicking the professional norms, standards, practices, and goals of universities that have opted for a more or less thoroughgoing secularism.  Especially in areas of the humanities and social sciences where matters of human deliberation, judgment, choice, and action are grist for the intellectual mill, the questions raised and the modes of inquiry and analysis employed should never slavishly imitate what is going on in the leading secular institutions.  The consequence of such mimicry will be—you can count on it—the abandonment of that part of the mission of the university that concerns the appropriation of truth.  The putatively value-free, purely external description of facts will become the leading object of scholarly pursuit—and will soon come to be regarded as the only valid object of scholarly pursuit—with the assessment of their meaning and moral and spiritual significance pushed to the margins as if these matters were outside the scope of rational inquiry and therefore beyond the bounds of legitimate scholarly labor.

When faith becomes irrelevant to the intellectual mission of religiously affiliated academic institutions—when the fundamental standards by which scholars judge themselves and their institutions are the so-called professional standards of the secular intellectual culture, detached from the spiritual mission of the church with which the university is affiliated—religion will soon come to be perceived as at best an extracurricular campus pursuit and at worst an obscurantist intrusion into the house of intellect.  In the latter case, religious authorities will come to be perceived as having no legitimate role in the governance of the institution and will be resented if they so much as raise questions about curricular matters or the research agendas of faculty members.

What I am describing is no mere theoretical possibility:  It has happened to many colleges and universities that were once religiously affiliated and to more than a few that continue to have at least nominal religious affiliation, whether Catholic or Protestant.  The sad story is told brilliantly, and at length, in the book The Dying of the Light, written by Fr. James Burtchaell, the former Provost of the University of Notre Dame.  But for those universities that have remained faithful, including this distinguished institution, secularization is by no means inevitable. Nor is it the case that a decision to resist secularization inevitably undermines the capacity of such institutions to command respect in the larger intellectual culture.  A Brigham Young or a Notre Dame needn’t choose between religious fidelity and the respect of peer institutions, and it certainly need not choose between fidelity to its religious mission and academic excellence.

The deeper questions of meaning and significance cannot be permanently laid aside, even in secular institutions.  Human nature itself is an impediment to that happening.  We human beings long for the truth, and desire its full appropriation. We cannot permanently be satisfied with conceptions of intellectual life and inquiry that place the deepest questions out of bounds and off limits.  Already one perceives, not just in the humanities but also in the social sciences and even the natural sciences, a sense of lack, even a bit of a guilty conscience, for the marginalization of questions of meaning and moral and spiritual significance.  Perhaps without being fully conscious of it, some in secular colleges and universities have a sense that their institutions need to be more like Brigham Young. So this is no time for faith-based colleges and universities to be sloughing off what makes them not only different but in an important respect superior.

Excellence is the aspiration and rallying cry of all universities. But there are competing understandings of the standards of excellence—what is to count as excellence.  The excellence of BYU consists in no small part in its devotion to the appropriation of truth, its dedication to exploring the larger, lasting, and even eternal meaning and significance of what we know or can discover.  This dedication is itself the fruit of rootedness in a great tradition of faith; guidance from wise and devoted trustees; the intellectual and pedagogical gifts of a distinguished and devout faculty; and the extraordinary generosity of faithful LDS families who are moved by love of God and neighbor to support an institution of higher learning dedicated to the integration of faith and reason.

My prayer is that BYU will, by the grace of almighty God and with his abundant blessings, always remain faithful to its mission.  For me, it is an exceptionally high honor to be joining the ranks of its honorary alumni.  Thank you.

Robert P. George


April 23, 2015 | Permalink

Francis Cardinal George, O.M.I.: The Model for a Modern Bishop

Francis George at microphone

Thanks to Rick for the invitation to remember Francis Cardinal George, O.M.I., Chicago’s Archbishop Emeritus, who died on Friday following a long battle with cancer.  His funeral Mass takes place today at Holy Name Cathedral.  Because of his illness, the Cardinal’s death was not unexpected, but it remains an enormous loss, to his family and the people who knew him, to the Catholic community, and, I would suggest (though they may not appreciate it), to those who work to shape American society and culture.

I was fortunate to know the Cardinal, and to work with him and for him through the Lumen Christi Institute, Loyola University Chicago, and the Catholic Conference of Illinois.  Francis Eugene George was a genuinely humble man with a gentle manner and a keen wit.   Although his public demeanor was serious and restrained (as befits his office and the issues he was often called upon to address) in private he exuded real warmth and a playful sense of humor.

George was widely regarded as having possessed a stunning intellect, a reputation that was well deserved.  He was easily the intellectual equal or superior of anyone I have known in university life, whether as a student or professor.  Like the best academics, he had an extraordinary ability to synthesize different strains of thought, and to offer some new insight.  I can honestly say, that whenever he spoke in public I always learned something new that was of value.

There is a view (popularized by some) that draws a distinction between bishops who are “doctrinal” and those who are “pastoral.”  Doctrinal bishops are rigid, uncaring overseers who value rules over people, whereas pastoral bishops care for people and their relationship with God even at the expense of doctrines and rules.  This is a false dichotomy, and Cardinal George gave proof to the lie.  He steadfastly held to the faith of the Church, with heart and mind, and he shared the truth of the Gospel with those in his charge, but he did so with the deft touch of a loving pastor.  George’s predecessor, Joseph Cardinal Bernadin (may his memory be eternal) had the reputation for being a good pastor, but following the formal program of an event at a parish or school he was quickly out the door.  What is not widely known outside Chicago is that at those same kinds of events George was often the last person to leave the room.  He spent extensive time visiting with people, listening to them, making himself available as a genuine pastor.

The Church teaches that the role of a bishop is to teach, sanctify, and govern the local church (diocese or eparchy) with which he is entrusted (Catechism of the Catholic Church ¶ 873).  Francis Eugene George fulfilled these responsibilities in the context of leading a large metropolitan see in an atmosphere marked by an increasingly aggressive secularism.  In this he served as a model for bishops in the United States today.  Here I wish to highlight three quotations from his tenure as archbishop that show these qualities.

1.  Teaching was something that came naturally to Francis George, having served as a professor at Creighton University and elsewhere early in his career.  When he was appointed to serve as Archbishop of Chicago, following the death of Cardinal Bernadin, he came to Chicago to meet with archdiocesan officials, and the first thing he did was to go and pray before the Blessed Sacrament (a move that in many ways set the tone for his entire tenure as archbishop).  After meeting with various administrators he held his first press conference with the Chicago media.  There one reporter characterized George as a “conservative” and his predecessor as a “liberal” and then asked George whether he would be able to reach out to everyone the way that Bernadin did.  George very graciously responded that Cardinal Bernadin was blessed with a gift for reaching people who found themselves at different places in life, and in different places with respect to the Church.  He prayed that he would have the same ability in his ministry as archbishop.  But he also made clear that the role of the bishop is to call people to Christ, and we come to know Christ and to be in intimate relationship with him through the faith of the Church that Christ established “And the faith is not ‘liberal’ or ‘conservative.’  The faith is true.  And so I will preach the faith as Cardinal Bernadin preached it and taught it.  There will be no difference in substance, although there may be some difference in style.”  (Part of the quote can be found here.  A more recent statement of the same theme can be found here).

The idea that religions (all religions, not just Catholicism) make truth claims is at the foundation of modernity’s struggle with religious faith.  It is so much easier to dismiss religion, to marginalize it when it is understood as mere sentimentality, or when it is relativized as a purely private belief, or when it is framed within the lens of politics.  And indeed, if this accurately describes what religion is all about, it’s hard to explain why it can’t be more malleable, why it can’t accommodate itself entirely to the current realities (“facts on the ground”) and the spirit of the age.   But a religious claim that is more than a feeling – a truth that is not of one’s own making, a truth that is received – calls for a change on the part of the recipient.  One simply cannot live one’s life as before.  Francis Cardinal George knew the truth and he insisted on using the language of truth when speaking of the faith.  He did not succumb to the language of politics or psychology.  That, combined with his own personal surrender to this truth, is an enduring model for how bishops should speak and act in the contemporary American context.

2.  As the above story conveys, George took the sacral role of bishop very seriously.  Another story makes the point even more forcefully.  Early in his tenure as archbishop he paid a visit to Mundelein Seminary, the archdiocesan seminary located in a suburb north of Chicago and named for its founder, the City’s most famous archbishop, George Cardinal Mundelein.  During his tour of the campus, Francis George was shown the chapel where the seminarians gathered for Mass and he noticed something was missing.  “Where are the kneelers?” he asked.  His host informed him that some seminarians felt uncomfortable kneeling, and that as a community they decided instead to show respect for God by standing.  Such a response reflects a lamentable understanding of the history behind the practice of kneeling during the Eucharistic prayer in the Roman Rite (which goes back prior to the Council of Nicea), and its meaning in contemporary culture (viz. Standing may be a sign of respect, as when a soldier stands at attention before a superior, or when the courtroom stands when a judge enters.  But it is also a commonplace posture that expresses indifference, or the routine of the work-a-day world, as in standing on the platform while waiting for the train, or in line at Starbucks.  Kneeling, by contrast, is a posture of prayer that is biblical in its origin and reserved for God.).  In response, George, who walked with a noticeable limp due to a debilitating case of polio, got down on his knees and said “Look, I’m a cripple.  If I can kneel then you can too.”

George knew the ancient wisdom of the Church, lex orandi, lex credendi, and he wanted his priests and the people under his pastoral care to be formed in the faith that reflects the relationship of between creatures and the Creator – a relationship in which we should express love, adoration, thanksgiving, and repentance, not the tedium of the work-a-day world.  He sought to do the same with all Catholics in the United States, leading the reforms begun under Liturgiam Authenticam, bringing to people’s lips “words of praise and adoration that foster reverence and gratitude in the face of God’s majesty, his power his mercy and his transcendent nature” (¶ 25).  He knew that only by being formed by the apostolic faith in the liturgy of the Church could the people of God then be equipped to evangelize the culture, to bring Christ to the world.  Lex orandi, lex credendi.

3.  A bishop is also charged with the responsibility of governing his diocese, a role that Cardinal George took seriously.  He was a genuine pastor (shepherd) who gave his flock the freedom to roam, not a CEO who dictated every move they made.  Indeed, at a gathering at DePaul University, I recall him saying how it is not the role of the bishop to decide where the people of God should go, only to ensure that the path taken was consistent with the faith.  Normally, the Lord’s flock choose to go where they will, and the bishop’s crosier – the shepherd’s staff – is used only to keep them from becoming mired in the mud of sin or jumping off the cliff of heterodoxy.  The bishop also uses his staff to protect his people from the wolves that prowl about and seek to do them harm.  Of course these wolves – people opposed to the freedom of the Church and the substance of what the Church teaches – are also our neighbors, fellow citizens, and government officials, and so the defense offered by a bishop must be offered in charity, and measured in tone while not shirking from the truth.  

In this, Cardinal George excelled, leading his brother bishops in the Church’s opposition to the Obama administration’s health care reform measure that included federal subsidies for abortion, and the subsequent HHS mandate requiring employers to provide contraception/abortifacient coverage.  In Chicago he also defended the freedom of any citizen to support the traditional understanding of marriage as a union between one man and one woman.  When the president of Chick-fil-A spoke out in favor of traditional marriage, Rahm Emanuel, the Mayor of Chicago, said that such views did not reflect “Chicago values” (here and here) and that people who espoused them could be denied business licenses. The Cardinal quickly recognized the totalitarian impulse in this posture and appealed to the traditional understanding of freedom and limited government that has defined the American experience (here): “I was born and raised here, and my understanding of being a Chicagoan never included submitting my value system to the government for approval.  Must those whose personal values do not conform to those of the government of the day move from the city?  Is the City Council going to set up a ‘Council Committee on Un-Chicagoan Activities’ and call those of us who are suspect to appear before it?”  May George’s successor and all his brother bishops and all the laity have the same courage to speak truth to power, to live the faith with integrity, and to bear witness to Christ as his disciples in the world.

May the Lord in his great mercy welcome his servant, Francis Eugene George, into the paschal feast of heaven.

April 23, 2015 | Permalink

Weigel on "Wolf Hall" . . .

. . . and its "up-market anti-Catholicism."  

. . . Britain’s literary high culture is still in thrall to the Whig view of British history, and seems oblivious to the deep transformation that’s taken place in English Reformation studies since Eamon Duffy’s extraordinary book, “The Stripping of the Altars,” was first published in 1992. There, Duffy demonstrated beyond cavil what Simon Schama alluded to in his Financial Times article on the BBC version of “Wolf Hall:” that Henry VIII was a proto-totalitarian who, with his Protestant heirs, imposed his version of Christianity on England against the will of the great majority of plain folk, who stubbornly clung to the old faith until the overwhelming power of the state extinguished most of English Catholic life, and “anti-popery” got set in cultural concrete as modern nation-building went forward in Britain—often funded by expropriated Catholic properties.

Protestant anti-Catholicism in the U.K. has long since been superseded by secular anti-Catholicism, but the cultural afterburn remains virtually identical: to the Hillary Mantels of 21st-century Britain, Catholicism is retrograde, priggish, obsessive, fanatical, and, well, un-English[.]

April 23, 2015 in Garnett, Rick | Permalink

Wednesday, April 22, 2015

CLT: A discussion at Villanova

One last reminder that those interested in the "Catholic legal theory" project will have the opportunity to hear several MOJ contributors tackle the project's aspirations, hopes, and challenges this Friday, April 24, at Villanova Law School.  The program for the event is here:  Scarpa Conference.  The event is open to the public, and CLE credit (including one in Ethics) will be available to attorneys who register and attend.  

A good and rewarding time is sure to be had by all, as I expect that the unity in diversity that animates the project will be enveloping.  

April 22, 2015 in Brennan, Patrick | Permalink

Tuesday, April 21, 2015

Movsesian on "Wolf Hall"

Mark Movsesian has a good post about "Wolf Hall" and what it says about the state and future of religious freedom.   He ends with this:

In its biased portrayal of More, British history’s great example of religious resistance to state orthodoxy, Wolf Hall is sending its audience a message: Don’t think this man was at all admirable. He was a dangerous head case. And, by extension, be careful of his analogues today, who continue to oppose religious fanaticism to tolerance, reason, and progress. Cromwell, and pragmatic people like him who protect us from the forces of reaction, are the real heroes.


It’s a powerful message, and one with increasing influence. Perhaps this explains why PBS is advertising Wolf Hall as “a historical drama for a modern audience.” The fact that this hatchet job on Thomas More appears in an impeccably well-done BBC production—surely the gold standard in upper-middle class entertainment—shows how fast our culture is changing, and how much work defenders of religious liberty have before them.

A good companion-read might be Paul Horwitz's The Hobby Lobby Moment.  

American religious liberty is in state of flux and uncertainty. The controversy surrounding Burwell v. Hobby Lobby Stores, Inc. is both a cause and a symptom of this condition. It suggests the unsettled nature of one of the central elements of the church-state settlement: the accommodation of religion. Beyond that, Hobby Lobby -- both the Supreme Court decision itself, and the public controversy that has surrounded the contraception mandate litigation -- raises a host of other issues: the interpretation of the Religious Freedom Restoration Act, the status of reproductive rights, the disputed relationship between religious liberty and LGBT rights, and the changing nature of the commercial marketplace. More broadly, the Hobby Lobby controversy says much about the relationship between law and social change. 

This article explores these issues. Although it analyzes the opinions in the case, its primary focus is on Hobby Lobby as a "moment": as a stage in the life-cycle of both church-state law and the social and legal meaning of equality. An analysis of the "Hobby Lobby moment" suggests that the legal and social factors that turned a "simple" statutory case into the blockbuster of the Term lay largely outside the four corners of the opinion itself. The Hobby Lobby decision speaks to these larger controversies but does not resolve them. 

After examining the legal dispute and the decision in Hobby Lobby, this article discusses the legal and social sources of the controversy that surrounded it. Legally, it finds a rapid dissolution of consensus around a key aspect of church-state law: the accommodation of religion, which has become a foregrounded subject of legal and social contestation. This contestation has been driven or accompanied by significant social change of various kinds. The article focuses on two areas of social change that figure prominently in the Hobby Lobby moment. First, although the Hobby Lobby decision itself involved an important social issue -- women's reproductive rights -- I argue that the larger controversy surrounding the case had much to do with the rise of LGBT rights and same-sex marriage and their relationship to religious accommodation. Second, I argue that the controversy involved changing views concerning the nature of the commercial marketplace itself. The paper concludes with some observations about what the "Hobby Lobby moment" teaches us about the relationship between law and social change.

April 21, 2015 in Garnett, Rick | Permalink

The quality of mercy…


As a student in the public school system—I was known by my confreres who were able to attend Catholic schools as a publican—high school English classes brought the need to read and memorize passages from Shakespeare’s plays, be they history, tragedy, or comedy. One passage that I had to memorize and recite was from “The Merchant of Venice”: Portia’s “the quality of mercy” address, Act IV, Scene 1. In the play, Shylock seeks the legal remedy to which he is entitled: a pound of Antonio’s flesh, but neither a drop of his blood nor an ounce more of his flesh than a pound. If Shylock sheds even the slightest amount of Antonio’s blood or takes even the slightest excess of his flesh, all that he owns will be forfeited under the laws of Venice.

Portia reminds all that the law is the law and is to be followed, but even the highest temporal authority must remember the authority of God, which includes His mercy, which tempers the law. God’s mercy is free; as Portia says, “it droppeth as the gentle rain from heaven.” As mercy is an attribute of God, Himself, the temporal authorities would do well to reflect God’s mercy in the justice they administer—for “mercy seasons justice.” Portia reminds Shylock that, if justice be his plea, “in the course of justice none of us should see salvation: we do pray for mercy, and that same prayer doth teach us all to render the deeds of mercy. I have spoken thus much to mitigate the justice of thy plea…”

In some ways, the recent film “The Judge” displays some of Shakespeare’s lessons about justice and mercy. When Judge Palmer awards mercy to a young trouble-maker, this decision returns to haunt him when he, the judge, is accused of killing the young trouble-maker by running him over with his Cadillac. Lessons of justice and mercy continue throughout the film, but I shall be no plot-spoiler.

The themes of justice and mercy also punctuate Pope Francis’s recent Bull, Misericordiae Vultus, issued on Divine Mercy Sunday—the Second Sunday of Easter. Indeed, the pope has addressed in abundant fashion God’s mercy, but—and this is a point less reported in many media outlets—he has also abundantly addressed sin and the imperative that the sinner must acknowledge one’s sins to receive God’s abundant mercy. As the Holy Father states, “All one needs to do is to accept the invitation to conversion and submit one’s self to justice during this special time of mercy offered by the Church.” If one were to think and say that Francis is divorcing God’s mercy from the need of the sinner to be penitent and confess one’s sins, this view of the papal bull would be erroneous. As the Pope reminds us, our Lord and Savior Jesus Christ came not to call the righteous but sinners. Matthew 9:13. “Jesus is bent on revealing the great gift of mercy that searches out sinners and offers them pardon and salvation.”

But, to receive God’s mercy, pardon, and salvation, one must first acknowledge one’s commissions and omissions that constitute sin. As Pope Francis also asserts, “anyone who makes a mistake must pay the price. However, this is just the beginning of conversion, not its end, because one begins to feel the tenderness and mercy of God. God does not deny justice. He rather envelopes it and surpasses it with an even greater event in which we experience love as the foundation of true justice.” Before the Prodigal Son received his father’s mercy and forgiveness, the son confessed: “Father, I have sinned against heaven and before you; I am no longer worthy to be called your son.” Luke 15:21. Without this acknowledgement on the part of the sinner that one has sinned, how can the quality of mercy drop upon him or her as the gentle rain from heaven?


RJA sj

April 21, 2015 in Araujo, Robert | Permalink

Saturday, April 18, 2015

The wisdom of Cardinal George

The sad news of Card. George's death led me to read again some of his always wise words.  For example:

[I]n the Church today, there are voices on the left that resent the Church's teaching about many issues, particularly sexual morality, and therefore resent the bishops who uphold it.  There are voices on the right that say that they embrace the teaching but resent bishops who do not govern the the Church exactly as they say bishops should.  But the nature of episcopacy is to be free to act in Christ's name as pastors of the Church.  Bishops cannot be co-opted by state authority or political power, nor by pressure groups within the Church, lest the bishops fail in their office.

Francis Card. George, OMI, The Difference God Makes 205 (2009).

April 18, 2015 in Brennan, Patrick | Permalink

Cardinal George


I thank Rick for his kind invitation to offer personal thoughts about Francis Cardinal George, OMI. In my almost five years in Chicago, I would see the cardinal from time to time on business matters—mostly regarding the Church in public life, Catholic education, and religious freedom subjects—at his residence or at his office, which was across the street from mine. These meetings were filled with his intelligence. Like Thomas More, the cardinal knew that God created the human person to engage God in the tangle of His mind.

But there was another aspect of the cardinal’s life that few people would have seen. He and I both received our cancer treatment and evaluation at the Loyola University Medical Center. On several occasions, our encounters were simple passings-by in the halls of the Bernardin Cancer Center of the Loyola medical center. On those junctures, there would be from him the friendly “how’s it going?” However, on one Thanksgiving week, we met in the same radiology imaging lab. I was waiting for an MRI when the cardinal entered. He was going to have a CAT scan. We spoke not about business matters addressing public life or religious freedom but about being Christians and priests. The ultimate issue of what is it all about came up.

His Eminence offered a simple and yet brilliant response. His answer to the question focused on salvation. As priests, our responsibility was and remains to help others on their paths to the salvation offered by Christ. But, as mere pilgrims, he mentioned that we, too, were on that same general path and not to forget it. I am confident he found his path without much difficulty and is now in the warm embrace of God. The cardinal mentioned that our suffering, especially from the same general disease we shared, was a gift to help us understand better what our human existence is about and the goal that is our destiny. He found the road that took him home to God. Aware of my own sinfulness, I still struggle to do the same.


RJA sj


April 18, 2015 in Araujo, Robert | Permalink

Friday, April 17, 2015

Cardinal George, R.I.P.

I just learned from Commonweal that Francis Cardinal George has died.  Here is the Chicago Tribune obituary.  God bless him.

When I was a visiting law professor, at the University of Chicago's law school, in 2007, I taught a class on "Catholic Social Thought and the Law."  It was a wonderful experience.  And, a highlight was our first meeting, over lasagna in the student lounge, at which Cardinal George was the guest speaker and participant.  That he took the time to come and inspire a group of law students meant a lot to the students, and to me.

I know that some other MOJ-ers knew Cardinal George well, and I hope others will share some more worthy thoughts about him, his work, his thought, and his gifts.  

April 17, 2015 in Garnett, Rick | Permalink

Tocqueville on "countercultural" churches

Peter Lawler has this essay, at the Imaginative Conservative, called "Tocqueville on Keeping Our Countercultural Churches."  Very interesting.  Here's a bit:

The danger in democracy is that Christian churches lose their capacity to be genuinely countercultural—or teach the truth that will be neglected “on the street” in middle-class democracy. And so the separation of church and state is to keep the church from being corrupted by excessive concern with endlessly egalitarian justice and the logic of the market. The separation is for the integrity of the church by limiting the claims for truth and morality of the democratic “social state,” which includes the democratic state.

But it’s both futile and even un-Christian to think that there could be, in the modern world, a state that favors or properly appreciates the church. Orestes Brownson, the greatest American Catholic thinker ever, said all the church should need and want from America is freedom to pursue its evangelical mission. That means, of course, that Americans should understand political freedom to be freedom for the church, for an organized body of thought and action. And we can see that the church flourished in America in the relative absence of politicized intrusion or corruption for a very long time.

The danger now, as always, is that the individualistic yet highly judgmental democracy—our creeping and creepy mixture of progressivism and libertarianism—will seek to impose its standards on our countercultural churches. 

April 17, 2015 in Garnett, Rick | Permalink

Wednesday, April 15, 2015

Mad Men, Religion, and Law: What If Religion Were Like Advertising? – Just Ask Planned Parenthood!

Mad Men Logo

April 5th, Easter Sunday, marked the return of the AMC series Mad Men for the second-half of its seventh and final season.  I confess to being a fan of the show, a television drama that tells the story of a Madison Avenue advertising agency across the span of the 1960s.  The writing and acting are strong, and the fashion and art direction faithfully reproduce the look and feel of the era.  Moreover, the epoch making events of the 1960s (the Kennedy and King assassinations, the Apollo 11 moon landing) and the political and cultural struggles that defined the decade (civil rights, Vietnam, women’s liberation, the sexual revolution, recreational drugs, and the counter-cultural lifestyles of both urban beatniks and commune-bound hippies) serve as a backdrop and source of thematic content for the lives of the characters who inhabit the world of the Sterling Cooper ad agency.

As a young child in the 1960s I recall some of this background – Bobby Kennedy’s assassination, the moon landing, my parents attending an anti-war rally – such that the show evokes, not a sense of nostalgia, but a searching recollection of earlier days that linger on the edge of memory.  No doubt the show has inspired a similar response in other viewers (together with genuine nostalgia for an older generation), a quality which, I suspect, accounts for some of its popularity.

Mad Men has become something of a social phenomenon, partly for reasons that are emblematic of the superficiality of our culture: the physical beauty and attractiveness of the cast members, a certain fascination with style, and the dynamic whereby that which was once irredeemably “retro” again becomes genuinely “hip.”  But the show is in fact deserving of serious attention in that it provides a kind of portrait that accounts for the world in which we live today.  The characters that inhabit the world of Mad Men reflect the disordered desire of the age – the pursuit of happiness conceived in terms of the acquisition and consumption – of things, people, and experiences – a pursuit that is ultimately vapid and lifeless, and so invariably leads to frustration and despair.  This mistaken understanding of happiness (and the use of human freedom to attain happiness) can have a corrupting influence not only on the culture generally, but on religion specifically – a point that I hope to bring into relief by highlighting two recent letters issued as part of Planned Parenthood’s religious “ministry” to its abortion patients.  In closing I draw some contrasts between advertising, religion (properly understood) and law.

The central character in Mad Man, Donald Draper, is the creative director at the Sterling Cooper ad agency – a man whose advertising imagination seems fueled by talent, cigarettes, cocktails and sex.  When we are first introduced to Don he is married with a wife and two children in Ossining, and a mistress in the Village.  Don’s theme, and one might say the theme of the 1960s as the decade progressed, is set in an early episode.  Rachel Menken, a client (with whom Draper later has an affair) is somewhat taken aback by Don’s brazen cynicism about life and love.  “For a lot of people love isn’t just a slogan,” she insists.  In response Draper doubles down (see the video here):

By “love” you mean a big lightening bolt to the heart, when you can’t eat, and you can’t work, and you just run off, and you get married, and you make babies.  The reason why you haven’t felt it is because it doesn’t exist.  What you call “love” was invented by guys like me to sell nylons.

You’re born alone and you die alone, and this world just drops a bunch of rules on top of you to make you forget those facts, but I never forget.  I’m living like there’s no tomorrow because there isn’t one.

Despite the suave appeal with which this epicurean nihilism is delivered, several characters come to see this as a dead end.  Joan Harris, the office manager and onetime mistress of one of the name partners, rejects the proposal of Bob Benson, a young executive and closeted gay man who needs a spouse to complete his cover.  Although he offers comfort and financial security for Joan and her child, she is adamant that she wants love and not simply “some arrangement.”

Similarly, Peggy Olson, Don’s former secretary and creative protégé, has risen to the top of the profession.  Despite the success of her career, and notwithstanding the meanderings of youth and the sexual experimentation of the era, Peggy longs for a relationship of real love and serious commitment – one that manifests itself in marriage and children.  “What did I do wrong?” she tearfully asks Don during one late night brainstorming session (see the video here).  “You’re doing great” he assures her, which, judged by his own standards of domestic success, is not untrue.

In the recently aired season opener, Peggy refuses to sleep with a guy on the first date.  When her companion remarks that she is “so old fashioned” she tells him that she’s “tried new fashioned” but intimates that it just doesn’t work. 

Despite these dissenting views, Don’s morbid, albeit stylish, philosophy dominates the lives of various characters on the show who do indeed live as if there were no tomorrow.   Roger Sterling, the endlessly charming and philandering name partner of the agency, divorces his wife of over twenty years for his then secretary, whom he also later divorces, experimenting with LSD and orgies with twenty-somethings.  Younger functionaries within the agency fair no better.  Trudy Campbell, the wife of Pete, an ambitious young account executive, experiences a similar emptiness notwithstanding their growing material success.  “Is this all there is?” she asks, despairing that she already knows the answer.  Even after the couple have a child and leave Manhattan for a house in Westchester, Pete, seduced by what the culture tells him (a culture that he helps to create through his work at the agency), pitifully concludes “I have nothing.”

Pete thinks he has nothing because he has been taught to want everything.  Advertising is a dynamo that fuels a ceaseless pattern of consumption, an insatiable drive to acquire more and more.  Draper stokes the embers of an undying lack of satisfaction in making a pitch to a potential client, encouraging them to switch agencies (see the video here):

You’re happy with 50 percent?!  You’re on top and you don’t have enough.  You’re happy because you’re successful, for now.  But what is happiness?  It’s a moment before you need more happiness.  I won’t settle for 50 percent of anything.  I want 100 percent.  You’re happy with your agency?!  You’re not happy with anything!  You don’t want most of it!  You want all of it!  And I won’t stop until you get all of it!

Perhaps not surprisingly, the most poignant ad campaigns debuted by the copywriters on the show focus not on satisfaction of the insatiable.  They focus on the themes of family, commitment, stability, and fidelity – not the new values of the Space Age, the pill, and rock and roll, but the “old fashioned” values that helped to build the country and that sustained it over time.  The irony of the show reflects a post-post-modern sensibility.  We know that society cannot do without the family (which is betrayed at so many turns) but we mock it anyway, claiming that its demands are unrealistic and inevitably end in hypocrisy (though perhaps cognizant that our mocking helps to make this domestic failure a self-fulfilling prophesy).

At the end of the first season (see the video here), Don delivers a powerful campaign for the new Kodak slide-projector naming it "The Carousel.”  He movingly describes how it “lets us travel the way a child travels – round and round and back home again, to a place where we know we are loved.”  In the closing scene of the episode Don “turns round” and “comes back” to his wife and children at the family home, only to find them no longer there.

In the hands of an artful copywriter, two sisters dividing a Popsicle is not the equal allocation of a consumer item (see the video here), but the ritual of sharing at the heart of every family: “Take it, break it, share it, love it.”

When the agency is in danger of losing the Heinz Beans account, Don and Meagan (his former secretary and second wife) turn to the family once again (see the video here).  “We’re all so busy, and we rush around, and it will probably always be like that,” Megan explains, “but a mother and child and dinner.  That’ll never change” – a story that gives rise to the slogan “Heinz Beans . . .  Some Things Never Change.”

Similarly, in the mid-season finale of the seventh and concluding season, Peggy delivers the winning campaign for Burger Chef (see the video here).  The real world American dinner table is, she says, a place of conflict between the generations, “with the TV always on and Vietnam playing in the background . . . and you’re starving, and not just for dinner.”  But Burger Chef is clean and safe, where families can truly come together.  “There may be chaos at home,” she says, “but there’s always ‘Family Supper at Burger Chef.’”

The dissonance between the ads that Don crafts for his clients and the reality of his own family life and background eventually catch up to him, building to a kind of self-hatred.  In pitching a campaign to sell Hersey’s chocolate bars (see the video here), Don fondly recalls how his father would tussle his hair and reward him for cutting the lawn with a treat from the local candy store, and how the Hersey’s bar that he chose is now always identified with his father’s love.  The story is a complete fabrication – a yarn of faux sincerity meant to rope the client and its customers in.  The viewer of earlier episodes knows the story is false, but now the lie becomes public as Don is moved to expose his true identity.

Don’s whole life has been a lie.  Don Draper is in fact Dick Whitman, an awkward, impoverished farm boy from West Virginia whose father was a drunk and whose mother was a prostitute who died in childbirth.  His widowed step-mother sought help from her sister who raised him in a whorehouse in Pennsylvania.  Wounded in Korea, he assumed the identity of another soldier, killed in battle, stealing his dog tags.  He builds a new life as Don Draper, but this American success story is only faintly Gatsby-esque.  He does not seek to “romp like the mind of God,” only to use his agile mind to impress the client and land the next account.  Nor is he driven by the great love of a Daisy Buchanan or any one woman, only the momentary pleasure of many women.  He is a serial adulterer – bedding the freelance artist who works for the agency, bedding his daughter’s elementary school teacher, bedding the female client and the male client’s wife, bedding the firm’s consumer research consultant, bedding his secretary (two of them), bedding the upstairs neighbor.  Like the world of advertising, Don’s life is forever in flux, but the one constant is that his libido always makes copy.

Peggy, Don’s apprentice, learns to tell the big lie as well – the lie that bestows a new identity and makes possible a new life.  Among all her co-workers, Don alone discovers that Peggy has had a child out-of-wedlock, and visits her in the maternity ward of the sanatorium.  Don tells her to “do whatever they say to get released” so that she can move on with her life.  “This never happened,” he assures her.  “It will shock you how much this never happened.”

Lives built on lies are truly mad indeed.  Although I may be proven wrong with the concluding episodes, I tend to think that the ultimate theme of the series is an elaborate play on the words of the show’s title.  “Mad Men” doesn’t simply refer to the Madison Avenue address of New York advertising executives. Rather, those whose job it is to generate support for this product or that, to engage in the art of manufacturing desire for the acquisition and consumption of things, are truly mad.  The substance of their lives is triviality.  Their job is to spin lie after lie – even when artfully mixed with some measure of beauty and truth.  Those whose job it is to seduce others are themselves seduced – not by the individual messages that they spin, but by the message implicit in all of them: You will be happy only in having more – more money, more things, more power, more sex, and one more drink. Their lives are hollow – a tragic nothingness masquerading as something, as deep as the ink on the page, as sincere as the glossy smile of a magazine cover, as permanent as the thirty-second spot aired in prime-time. 

The opening credits do more than simply hint in this direction (see the video here): The dark silhouette of the main character arriving with his briefcase at the office, transposed with various ad campaigns, as the world collapses and he descends, falling into oblivion – the suicide plunge from a Manhattan office tower of an advertising executive gone mad.  The images of his work and the chaos of his life drift past, but instead of colliding with the pavement below the silhouetted figure then appears on the office sofa, cigarette in hand, unfazed, cool beyond words.  Truly mad indeed.

What does all this – what does the world of advertising – have to do with religion and with law?

John Paul II eloquently diagnosed the malady at the heart of a consumerist culture.  It involves “a direct appeal . . . to [people’s] instincts – while ignoring in various ways the reality of the person as intelligent and free – then consumer attitudes and lifestyles can be created which are objectively improper and often damaging to [their] physical and spiritual health.” (Centesimus Annus ¶ 36).  Sadly, the outstanding feature of the developed countries in the West is “an excessive promotion of purely utilitarian values, with an appeal to the appetites and inclinations toward immediate gratification” (¶ 29).  The danger in a society of this sort is that it lacks “a correct scale of values” (¶41) such that its members come to believe that a style of life “is presumed to be better when it is directed toward ‘having’ rather than ‘being’ and which wants to have more, not in order to be more but in order to spend life in enjoyment as an end in itself.” (¶ 36). 

The proper response to this phenomenon is not so much legal as it is cultural.  Indeed, in a society that values a robust right to freedom of expression, the legal response to advertising must be somewhat circumspect.  Although occasions for regulation (i.e. “false advertising” as in the case of fraud and other forms of misrepresentation) do exist, these must be narrowly defined. 

The cultural problem is at its zenith when the appeal to “appetites and inclinations toward immediate gratification” becomes commonplace, indeed, when it becomes commonsense.  Here, Don Draper’s explanation of advertising in the pilot episode is most telling (see the video here):

Advertising is based on one thing: happiness.  And do you know what happiness is?  Happiness is the smell of a new car.  It’s freedom from fear.  It’s a billboard on the side of the road that screams with reassurance that whatever you’re doing, it’s O.K.  You are O.K.

The strategy of affirming the individual in his or her life choices (whether it involves a new car, a brand of deodorant, or a younger spouse) applies even where the product or service promoted is lethal, like Lucky Strike cigarettes (a signature account for Sterling Cooper), or, although not part of the Sterling Cooper portfolio, so far as we know, abortions courtesy of Planned Parenthood. 

Draper’s description of the essence of advertising as personal affirmation – “You are OK” – is eerily similar to the idea of religion present in two recent letters (see the links below) that Planned Parenthood has offered as part of its “ministry” to women who are contemplating abortion and women who are post-abortive.

The first letter, from Planned Parenthood’s “Clergy Advisory Board,” states that the purpose of the letter is “to support you in your decision.”  It assures women that “there are clergy and people of faith from all denominations who support women making this complex decision.”  In other words, you can be confident that “You are OK” in choosing to abort your child because other people think you are OK.   The letter tells women: “Allow yourself to be at peace with your decision.  God loves you and is with you no matter what you decide.  You can find strength, understanding, and comfort in that love.”  And if a twinge of doubt creeps in, no worries.  You will be affirmed.  “If you’d like to speak with a clergy person, your local Planned Parenthood health center can refer you to someone who will [sic] be supportive of you and your decision.”

The second letter, from Planned Parenthood’s “Religious Affairs Committee,” likewise states that its purpose is to support the woman “in whatever course you choose.”  Given the fact that Planned Parenthood clinics actually have abortion quotas to meet their operating budgets (a fact established based on internal Planned Parenthood documents and the testimony of former clinic workers, see here, here and here) they are (like any good business) likely to be more supportive of some courses of action rather than others.  Indeed, the letter is in no way concerned with women who choose to give birth.  Rather, the entire purpose of the letter is to affirm the woman who has had an abortion or who is contemplating one, but who may have misgivings because of her religious faith.

To that end, the second letter treads deeper into theological waters than the first – at least as deep as a theology of self-affirmation will go.  It boldly declares that “the decision to have an abortion will not threaten your relationship with God.”  “God is not angry with you and will not punish you for any choice you have or might make.”  Instead, the letter postulates: “If you have thoughtfully decided to have an abortion then you should be at peace with your decision.”  The person must be affirmed even when her own conscience may indicate otherwise.  Thus, the letter says that experiencing sorrow, doubt, depression over an abortion “does not mean that your decision was a bad one” only that you are a “sensitive person.”

Of course God (at least the God of Judaism and orthodox Christianity) does love and affirm every person, even women who have abortions.  But this love and affirmation does not extend to every action undertaken by the person. This is because some actions are sinful – they impair the good of individuals, they cause others to suffer injustice, and they constitute a rejection of God’s love.  John Paul II famously made this very point in speaking directly to women who are post-abortive.  He bluntly states that “what happened was and remains terribly wrong,” but the tragic choice of abortion does not preclude God’s love.  By confronting what happened and “fac[ing] it honestly” God stands ready “to give you his forgiveness and his peace in the Sacrament of Reconciliation” (Evangelium Vitae  ¶ 99).  The person who engages in sin is not OK, but the offer of God’s loving mercy carries with it real hope and the promise of transformation.

By contrast, a God who offers only self-affirmation, a God who doesn’t teach the sinner, a God who doesn’t challenge the individual, a God for whom truth is irrelevant –for whom there is no moral truth, no good and evil, only the sanctity of “choice” – is a God made in our own image – a God fashioned by advertising executives, a God for Mad Men.  “Whatever you’re doing, it’s OK.  You are OK.” 

Father Alexander Schmemann, the famous Russian émigré, Orthodox priest, and longtime professor at St. Vladimir’s Seminary, perfectly captured this “Gospel of Self Affirmation” to which both Don Draper and Planned Parenthood give voice (here):

Now in our own day . . . it is always in the name of good, of freedom, of concern for mankind that people are enslaved and murdered, deceived, lied to, slandered and destroyed.  “Every evil screams out only one message: ‘I am good!’” And not only does it scream, but it demands that the people cry out tirelessly in response: "You are good, you are freedom, you are happiness."

Religion, at least the Christian religion, is not like advertising.  Advertising is about seduction.  Religion – at least the Christian religion – is, as Chesterton said, “a romance,” “a love affair.”  It is the great love story – God’s courtship of humanity.  It is the sacrifice of the Bridegroom for his bride, the Church.  And this, despite our inconstancy, our infidelity, our serial adultery – chasing one false idol after another that, once unveiled, always reveals an image of the idolater – it shows us an image of ourselves that says “Whatever you’re doing, it’s OK.  You are OK.”

Law, like religion – traditional religion, or religion that is not post-modern – does not scream “You are OK.”  Although (as per H.L.A. Hart), not every law is a command, not every legal ordinance is a “primary rule.”  Still, the law instructs and directs.  It distinguishes right from wrong to preserve justice and defend the public order.  And to those who violate its dictates the law says: “You are not O.K.  You harmed another.  You violated the public trust.  You must now render to the individual who has been injured and to the community as a whole that which is due, that which your transgressions failed to satisfy.”

While religion, at least the Christian religion, is not like advertising, it is like law: “You shall not kill.”  It is like law because Christianity (like Judaism) is fundamentally about a relationship with God.  The rules of Christian morality reflect principles meant to preserve and foster that relationship in its integrity.  “If you love me you will keep my commandments” (John 14:15).

Of course, we all desire some affirmation, and Christianity affirms the human person repeatedly, and in a profound way.  “You are a child of God!  You are God’s beloved!”  But this affirmation is an acknowledgement of the truth of our inmost being, our most basic identity and thus our only true desire.  It is not an affirmation of our ephemeral desires for the next girl or boy, the next drink, the next client, the next thing.  Indeed, desire for a person without love (i.e. real love, the gift of self for the benefit of the beloved) is not desire for a person, but a thing, an instrument, and thus only a distraction.

There is, in man, says John Paul, a “contradiction in his heart between the desire for the fullness of what is good and his ability to attain it, and above all, the need for salvation which results from this situation” (Centesimus Annus ¶ 13).  “You have made us for yourself O Lord, and our hearts are restless, until they rest in you” (St. Augustine, Confessions, bk. 1).  Only an infinite love can satisfy an infinite desire.

April 15, 2015 | Permalink

Catholic Legal Theory: In Person

The Ninth Annual John F. Scarpa Conference on Law, Politics, and Culture will be held at Villanova Law on Friday, April 24, 2015.  The topic of this year's conference names the project that has for more than a decade animated this blog: Catholic legal theory.  The conference program is here.  We'll see what "the God of surprises" has in store!

I am exceedingly grateful that a number of the longtime contributors to this blog will be speaking at the conference, which is open to the public.  For the benefit of those who can't attend, conference speakers may later share their contributions here on MOJ. 

April 15, 2015 in Brennan, Patrick | Permalink