Mark's advanced list of CST literarure is a good start. Just a reminder that in addition to readings with a broad coverage of CST, there are a number of books that address applications of Catholic thought to particular questions/legal areas that should be included as well. The couple that jump to mind are:
Massaro and Shannon, Catholic Perspectives on Peace and War
Cortright and Naughton, Rethinking the Purpose of Business: Interdisciplinary Essays from the Catholic Social Tradition.
Mike's request for a reading list for folks interested in Catholic legal theory is an important one, and the list from his friend at Ave is a start, but I think the question has to approached in a more complicated manner.
First of all, many of the texts in that list (Plato, Aquinas, Augustine, etc.)are so foundational that they sit awkwardly, although they are obviously essential. I would start off by asking first what foundation should a a legal scholar have before even thinking about trying to do Catholic legal theory. The cornerstone of course is a a good education in the Western philosophical, jurisprudential and theological tradition, beginning of course with Plato and Aristotle, and then Augustine, Aquinas and then the next rank of Christian thinkers. We could argue all day about who else belongs in the "foundation" or "canon," but that would be pointless. Let's just say that tackling the kinds of issues we are interested in requires an awfully good education in philosophy and theology.
Second, I would not want to describe "Catholic legal theory" as coterminous with natural law. Natural law is both broader (having secular versions for example) and narrower (aspects of Catholic legal theory are based in moral theology, the casuistic tradition, Scripture and Catholic social teaching). In other words, understanding and use of natural law is necessary, but not sufficient.
Third, missing from the list presented is the vast literature on Catholic social teaching, which is absolutely essential to the application of Catholic perspectives to a broad range of social issues relevant to law. I'll list some texts below. I think a focus on natural law emanating from Ave and an emphasis on Catholic social teaching emanating from Villanova (or at least from me) suggests some broader differences in conceptualization of the basic questions.
Fourth, I'm on shaky ground here because of my relative ignorance of the subject, but it strikes me that Christian ethicists have long been wrestling with a problem similar to ours: is there a distinctive Catholic approach to law (ethics)? I think we need to be familiar with what's been done by those folks.
Fifth, we need to be familiar with what our Protestant and Reformed colleagues are doing with their traditions with respect to understanding law. Both the differences and convergences are instructive.
Sixth, Catholic political theory (e.g. Maritain, as suggested) is of obvious relevance to law, as is Catholic economic theory.
My list thus would be an "advanced reading list" that assumes pre-existing familiarity with what I have called the philosophical, jurisprudential foundation, as well as with Catholic doctrine (the Catechism, for example), and thus would not include that huge literature. It would include the texts on natural law previously suggested, as well as some Christian/Catholic political theory. It also would include some texts in Christian/Catholic ethics, but I would leave it to someone else to educate us on those. I would however offer the following:
CATHOLIC SOCIAL THOUGHT
O'Brien and Shannon, CATHOLIC SOCIAL THOUGHT: THE DOCUMENTARY HERITAGE
Dorr, THE OPTION FOR THE POOR: A HUNDRED YEARS OF CATHOLIC SOCIAL TEACHING
Mich, CATHOLIC SOCIAL TEACHING AND MOVEMENTS
Anything by David Hollenbach
CHRISTIAN/CATHOLIC POLITICAL THEORY
Murray, WE HOLD THESE TRUTHS
O'Donovan & Lockwood, BONDS OF IMPERFECTION
Same (eds), FROM IRANEUS TO GROTIUS: A SOURCEBOOK IN CHRISTIAN POLITICAL THOUGHT
Insole, THE POLITICS OF FRAGILITY
Douglas and Hollenbach (eds), CATHOLICISM AND LIBERALISM
OTHER CHRISTIAN TRADITIONS
Witte, LAW AND PROTESTANTISM
This is just an off-the-cuff list designed to keep the conversation rolling. I think another question triggered by Mike's request is one very important to me as a dean: where are we going to find the people who have the kind of foundation I've described, who are also grounded in Catholicism, and interested in applying all that in their teaching and scholarly careers?
I have not yet read Prof. Leitzel's paper, referred to in Rob's post, but it is hard to see how the robustness principle could be limited. Once one says that state action is justified based on the fact that actors make less than rational choices, that opens a broad sphere in which the state can act to protect one from the personal harms caused by one's irrational choices. Based on irrational choice and level of harm, one can argue that there is more justification for the government to regulate everyone's calorie content and diet than some of the vices Leitzel mentions. I'd also be worried about whose idea of "their own good" is being promoted. I'd be interested in hearing ideas for how the principle (which I agree with Rob is intriguing from the standpoing of promoting human flourishing) could be framed in a way that limits it.
The University of Chicago's James Leitzel has posted a new paper, From Harm to Robustness: A Principled Approach to Vice Regulation. Here's the abstract:
John Stuart Mill's harm principle maintains that adult behavior cannot justifiably be subject to social coercion unless the behavior involves harm or a significant risk of harm to non-consenting others. The absence of harms to others, however, is one of the distinguishing features of many manifestations of vices such as the consumption of alcohol, nicotine, recreational drugs, prostitution, pornography, and gambling. It is therefore with respect to vice policy that the harm principle tends to be most constraining, and some current vice controls, including prohibitions on prostitution and drug possession, violate Mill's precept. In the vice arena, we seem to be willing to accept social interference with what Mill termed self-regarding behavior. Does consistency then imply that any popular social intervention into private affairs is justifiable, that the government has just as much right to outlaw skateboarding, or shag carpets, or spicy foods, as it does to outlaw drugs? In this paper I argue that advances in neuroscience and behavioral economics offer strong evidence that vices and other potentially addictive goods or activities frequently involve less-than-rational choices, and hence are exempt from the full force of the harm principle. As an alternative guide to vice policy, and following some direction from Mill, I propose the robustness principle: public policy towards addictive or vicious activities engaged in by adults should be robust with respect to departures from full rationality. That is, policies should work pretty well if everyone is completely rational, and policies should work pretty well even if many people are occasionally (or frequently) irrational in their vice-related choices. The harm and robustness principles cohere in many ways, but the robustness principle offers more scope for policies that try to direct people for their own good, without opening the door to tyrannical inroads upon self-regarding behavior.
I glanced at the paper, and he seems to focus on the use of addictive drugs. In this context, his "robustness" principle as a justification for regulating irrational behavior seems to comport nicely with Catholic legal theory by equipping the state to cultivate an environment where authentic human flourishing can occur, rather than simply looking to maximize individual autonomy. I would become a bit more cautious, however, if the principle is used to justify more broadly any state regulation of behavior deemed irrational by the prevailing political culture.
As we start a new academic year, I invite my fellow bloggers and our readers to post their list of the 10-20 books that anyone interested in the development of Catholic Legal Theory should read. These books could be by Catholic, other religious, or secular authors. They could address theology, philosophy, science, or any other discipline. The list could even include fiction.
I've missed blogging the last few weeks because of family (parental) health issues and a Northern-California vacation; but I've enjoyed dipping into the others' discussions.
The Times has an interesting story on John Roberts' intellectual development,i.e. the crystallization of his conservatism at Harvard as an undergrad and law student in the mid and late 70s, when campus conservatives were viewed as political freaks and intellectual jokes. The quote that interested me is from Harvard lawprof (and leading critical-legal-studies theorist) Morton Horwitz, who didn't teach Roberts but recently read an undergraduate paper Roberts wrote on Daniel Webster's conservative philosophy.
It seemed apparent to [Horwitz, from reading the paper,] that Judge Roberts "was a conservative looking for a conservative ideology in American history."
"It was interesting to me how self-conscious it was in terms of his own discovery of where he stood," said Professor Horwitz, a self-described liberal. "My guess is he came to Harvard College with conservative prejudices and tried to educate those prejudices whenever he had the opportunity." Some students lose their prejudices, he said. "But others, especially the more intellectual types, actually educate their prejudices."
I think that Horwitz describes a real pair of phenomena that happen to students: those who just drop the the simplistic beliefs with which they came, and those who retain the basic beliefs but discover that there is more sophisticated foundation for them than they ever had known (and who perhaps develop a more sophisticated content to the beliefs as a result). I trust, though, that in speaking of "prejudices" he's not just referring to conservative beliefs, but to students' entering beliefs in general. Of course, in one sense having "prejudices" is not a bad thing and is inevitable -- our deepest beliefs about the world are underdetermined by pure reason and evidence (underdetermined not undetermined), and they reflect, in significant part, existential commitments that we make as individuals and in various communities. As a crit, you would think Horwitz would affirm that this is so for liberal beliefs as well as conservative beliefs. To that extent, "educating one's prejudices" could be something quite different -- and much more intellectually respectable -- than just finding confirmation for whatever silly thing one thinks. As to the silly things, we hope that students "lose their prejudices." But again, I'm sure that Horwitz allows that liberal as well as conservative beliefs can be silly, and that switching at college from a widespread middle-American conservatism to a widespread campus-based liberalism is often a case of switching prejudices (now in the bad sense of prejudices) rather than losing them.
The Eleventh Circuit has ruled, among other things, that a city cemetery's ban on "vertical grave markers" does not violate the First Amendment. This case, Warner v. City of Boca Raton, is the subject of an interesting book by the University of Chicago's Professor Winnifred Fallers Sullivan, "The Impossibility of Religious Freedom." (I am reviewing this book for Commonweal magazine). Thanks, again, to Professor Friedman for the link). I suppose the ruling that the ban does not violate the First Amendment is, in light of Smith, relatively unsurprisingly. As Sullivan describes, though, it appears that the United States District Court, and the Florida Supreme Court, read Florida's own Religious Freedom Restoration Act quite narrowly.
Apparently, while serving as Associate Counsel to President Reagan, John Roberts had occasion to comment on a proposed presidential speech referring to the "greatest nation God ever created." In Roberts's view, such a reference should be avoided, because "God creates things like heavens and the earth and the birds and the fishes, but not nations." (Thanks to Professor Friedman, at "Religion Clause", for the tip). On the other hand, Catholics tend to think in terms of the "common good", and to see even political communities as, in some way, playing an important role in authentic human flourishing. So, was Roberts wrong?
