Lee on O'Donovan

Kevin Lee, over at Lex Christi, has this thorough post -- more of a book review really -- of Oliver O'Donovan's new book, The Ways of Judgment.

In this work, O’Donovan builds on the very influential project he began in The Desire of the Nations (Cambridge, 1996) (Reviewed in First Things, Nov. 1997). In that book he sets out an agenda for political theology, wherein questions about the nature of politics are put into play by the concerns of Christian theology. In this new work, he focuses on developing a Christian political theory beginning from the political questions and searching the resources that Christianity has to offer to them. . . .

Lee writes:

One, no doubt controversial conclusion that O’Donovan argued in an earlier essay (“Government as Judgment” in Oliver and Joan O’Donovan eds. Bond of Imperfection (Grand Rapids, Eerdmans Publishing Company, 2004) 207-224) is that in judging a statute, a court is bound by an obligation to judge justly, even when that judgment is not derived from the Constitution or case law. Why? Because these sources of law are illegitimate when they are not just.

I have not read "Government as Judgment", but I'd want to know more about the criteria O'Donovan employs to decide whether "the Constitution or case law . . . are not just."  A judge, I take it, does judge "justly", even when applying a badly reasoned judicial decision, or an unwise provision of the Constitution, so long as that application is consistent with rule-of-law norms, broadly understood.  It also seems to me that a judge judges "justly" when he refuses to invalidate even an unjust (but enacted in a procedurally valid manner) law, if there are no legally sufficient grounds for invalidating that law.  Both of these judgments seem different than, say, actually applying, and giving force to, an unjust law.  I'd welcome Kevin Lee's view on this . . .    He continues:

I think the value of O’Donovan’s work for Christians who teaching law is the breadth of his thought. He can help Catholic see the need to move beyond the narrow confines of Catholic Social Teaching to embrace the fullness of the Catholic intellectual heritage, of which social thought is only a by product. At its root, the Christian faith is not a moral teaching at all. It was a modern project to attempt to view it as such. Catholic thought is an orientation toward the world that holds foundational beliefs for metaphysics, epistemology, moral theory, and political thought.

I think Lee is right that those of us engaged in thinking about Catholic legal education, and Catholic legal theory, need to be careful about reducing the Church's contribution to the Catholic Social Thought tradition.  There's a danger, I suppose, of falling into a trap where one group of us -- perhaps a more "left"-leaning group -- use CST and another group -- perhaps a more "right"-leaning group -- use St. Thomas.  Lee is right:  "the Christian faith is not a moral teaching at all. It was a modern project to attempt to view it as such. Catholic thought is an orientation toward the world that holds foundational beliefs for metaphysics, epistemology, moral theory, and political thought."

So . . . what should be our reading list for smart law students at Catholic law schools who seek to "embrace the fullness of the Catholic intellectual heritage"?   I know we've exchanged Catholic Legal Theory reading lists on this blog over the past few weeks, but what if we were, say, designing a required course for a meaningfully Catholic law school, and wanted five key texts.  What would they be? 

Rick