Amy and Richard have been most helpful in developing issues about Catholic law schools. Surely we must look at Ex Corde Ecclesiae, but I also think Fides et Ratio is an important text to consider. I also believe that the CDF’s document on Catholics in Political Life is relevant to our discussion on defining what is essential to Catholic legal education. A number of Conciliar texts including Lumen Gentium and Gaudium et Spes also play an important role in the investigation and discussion. This list is not intended to be exclusive one, simply an identification of some relevant Church documents that have a bearing on the matter. Amy raises the interesting and important point about whether we should consider identifying a variety of models rather than determining the “best” model of Catholic legal education. I am not sure that identifying and discussing models, however, is the right question. I assume that there are different models for Catholic law schools. To aid the discussion, MOJ readers may wish to look at John J. Fitzgerald’s helpful article in the October 2002 issue of Crisis magazine on this point. He examines several schools: Ave Maria, Saint Thomas (Minnesota), Catholic University of America, Notre Dame, Boston College, and Georgetown. [Here] Do these models really help us understand what makes a law school a Catholic law school? There may well be a variety of models to consider, but is there something at the essence of the institution which says: here is a Catholic law school. Surely curriculum, perspectives, the identity of teachers and students, speakers, publications, sponsored or recognized student organizations, and other issues are at play. It could also be that different models contain this essence. But, when all is said, are there essential characteristics at the heart—perhaps the soul—of the institution which determines whether it is a Catholic law school or not? If that is the right question, I look forward to participating in developing a response with MOJ friends. RJA sj
Tuesday, November 8, 2005
Catholic Law Schools: Models and Essence
Catholic Law Schools: Response to Richard
Thank you, Richard. A few thoughts to continue our conversation on Patricia Levefere’s National Catholic Reporter piece on Catholicism and Teaching Law.
I’m going to back Tom Shaffer – I think that both Ex Corde and the “religious lawyering” movements are expressions of something broader and deeper—a “sign of the times” that we need a deeper integration, a deeper unity, between the life of the soul, the human spirit, intellectual endeavors, and professional life. Because I see the project as much vaster, I think the jury’s still out on whether it will succeed.
Nonetheless, I agree that Ex Corde is a good text to work with for discussions about Catholic identity. No.13 sets out these criteria: “Every Catholic University, as Catholic, must have the following essential characteristics”:
1. a Christian inspiration not only of individuals but of the university community as such;
2. a continuing reflection in the light of the Catholic faith upon the growing treasury of human
knowledge, to which it seeks to contribute by its own research;
3. fidelity to the Christian message as it comes to us through the Church;
4. an institutional commitment to the service of the people of God and of the human family in their
pilgrimage to the transcendent goal which gives meaning to life"
What might this mean for Catholic law schools? I think these criteria can point in a variety of directions. For example, in accord with (3) – one might say that no Catholic law school should be without a vehicle for advocacy against the death penalty, in accord with recent clarifications in the catechism. Or in accord with (4) no Catholic law school should be without a clinic or other concrete manifestations of service to the poor – that’s absolutely essential.
I agree with Richard that the example of professors is important – but I think the question of whether liturgy or practices such as Eucharist adoration should be a focal point depends greatly on the make-up of the student body. For example, reading no. 39: “When the academic community includes members of other Churches, ecclesial communities or religions, their initiatives for reflection and prayer in accordance with their own beliefs are to be respected.” On this basis, one could also say that at least in certain regions, it is essential for a Catholic university to have respectful space for prayer for Jews and/or Muslims.
I guess what I’m really getting at is that especially at schools that have been around for more than ten years, we are working with a variety of histories, cultural contexts, student populations, and social commitments. For this reason, we will be drawing out a variety of applications. I believe Ex Corde leaves plenty of room for the art of discerning how to be a Catholic law school in any given context.
This is not an exact analogy, but I think the reflections on ecumenism in John Paul II’s Crossing the Threshhold of Hope are a helpful literary key. In response to the question of why the Holy Spirit permitted so many divisions within the Church, John Paul II draws out the “more positive answer”: “Could it not be that these divisions have also been a path continually leading the Church to discover the untold wealth contained in Christ’s Gospel and in the redemption accomplished by Christ? Perhaps all this wealth would not have come to light otherwise. . . . It is necessary for humanity to achieve unity through plurality, to learn to come together in the one Church, even while presenting a plurality of ways of thinking and acting, or cultures and civilizations.” (p.153).
Could we not say, in something of an analogy, the law schools that are at this point working with the reality of incredibly diverse faculties and student bodies have the opportunity to develop distinct gifts and examples for Catholic legal education? For example, I think one of the most important gifts we can give students in New York is the example – even “witness” – of how Catholics can be in respectful and open dialogue with people of other religions and cultures, and in that context to reflect on how the Catholic intellectual tradition might shed light on the various problems they will face in practice. (See Ex Corde no. 37. “In its service to society, a Catholic University will relate especially to the academic, cultural and scientific world of the region in which it is located.”).
Or to back up for a second to a broader question: does anyone disagree that there should be a variety of models for Catholic legal education? At times I feel like we get stuck in attempts to delineate the “best” model—or to highlight certain “baselines” that may work at a school being built up from scratch, but would be unrealistic in schools with more complex histories on their shoulders. If we agree on this, then I’d like to push the point that variety is a good thing. Working with John Paul II’s ecumenism analogy, it is a vehicle for putting into relief “wealth which would have not come to light otherwise….” And in this spirit of respect for variety, we can actually learn from each other and recognize that different schools will contribute to the conversation in different ways.
Thoughts?
Amy
Monday, November 7, 2005
Moral Quietism, in Response to Richard and Rick
In accusing Justice Scalia (along with Andrew Sullivan) of "moral quietism," I meant to be mischievously provocative (in Justice Scalia's own grand tradition). I certainly don't believe that he would want the Church's shepherds (a) to be silent in all cases involving moral questions. And I don't even believe that he would want the Church's shepherds (b) to be silent in all cases involving moral questions where it has moral propositions to advance that are unpopular but it is not willing yet to label those moral truths as fundamental and non-negotiable. However, (b) is precisely what he argued concerning the death penalty. He did not argue just that the Church shouldn't make opposition to the death penalty a non-negotiable teaching; that would be a quite defensible argument. Rather, he argued that if it is not a non-negotiable teaching, then the Church should not advance it as a moral teaching at all, and beckon Catholics to follow it, if it would be unpopular and Catholic officials following it would have trouble getting elected as a result.
My problems with this position are two-fold. First, I can't imagine that Justice Scalia (or anyone else) would consistently apply it. There are lots of moral issues on which the Church has something to say that is morally important and valuable, and on which both Catholics and their fellow citizens ought to be challenged, but that doesn't rise to the level of non-negotiable teaching. And after all, the permissibility of the state taking life as a penalty is a far more basic moral question than whether section 106 of the Something or Other Act ought to have a cost-benefit standard or a best-available-technology standard -- the kind of question on which the Church can indeed exceed its competence and call its moral seriousness into question by crying wolf too much. For these reasons, I don't think that Richard's and Rick's worries about the absolutizing of mere "policy positions" are implicated by the Church taking a basic moral stand against the death penalty.
This, it seems to me, is the fundamental flaw in Justice Scalia's argument. It looks to be premised on there being two rigid categories of moral-political questions: a few non-negotiable ones, on which the Church's leaders should advance the Church's beliefs zealously, and others, on which the Church's leaders should stay quiet as a matter of prudence (meaning "caution") if the moral position that they are convinced follows from the faith is unpopular. Stated in that way, the position may seem like a caricature, but I think that has to be the logic underlying Justice Scalia's position that the Pope and bishops should not be setting forth opposition to the death penalty. The question of how fundamental are various moral teachings in Catholic thought surely must be more nuanced than this. BY THE WAY: This is a good juncture at which to suggest that our April 2006 conference at St. Thomas on "Public Policy, Prudential Judgment, and the Catholic Social Tradition" will be a great opportunity to explore these issues, and to encourage the submission of academic paper proposals for that conference.
Moreover, in response to both Richard and Rick, I would hope that the Church would be able to explain to people that -- as with any other sophisticated moral outlook on the world -- Catholic moral reasoning does not just consist in a few rigidly binding principles with everything else morally up for grabs. If people can't or won't understand that fact about Catholic moral reasoning, then the prospects for the Church's contributions to American public life really are quite dim.
ONE SUPPLEMENTAL THOUGHT: If there is a prudential concern that pushing Catholic officials toward flatly opposing the death penalty may make them unelectable, there is also a prudential argument that cuts the other direction. Susan Stabile mentions it at the end of her piece on abortion and John Courtney Murray's thought. Opposition to the death penalty as part of a "consistent ethic of life" may increase the Church's credibility with many Americans on life issues such as abortion and euthanasia: it may convince people, for example, that the anti-abortion position is not rooted in a desire to confine women only to traditional roles. Of course for a lot of people this "consistency" won't change their views -- and I don't mean to reopen the general debate on the advisability of a "consistent ethic of life" -- but one should weigh in the potential that a "consistent life" position can bolster the Church's moral credibility among moderate Americans of good faith.
Tom
Where Ought Christians, Including Catholics, to Stand on This?
The New York Review of Books
November 17, 2005
CRIME & PUNISHMENT
By John Harding, Reply by Hilary Mantel
In response to The Right to Life
(May 12, 2005)
To the Editors:
I read Hilary Mantel's penetrating review of Sister Helen Prejean's book, The Death of Innocents [NYR, May 12], the night before conducting an oral hearing of a life-sentence prisoner in a prison in the west of England. The man, now aged forty-six, had committed a gruesome murder of his next-door neighbor's wife, masturbating himself once the woman was dead. He was twenty-two at the time, deep in drink and self-loathing, nursing anger at his own violent upbringing at the hands of a sexually abusive father.
Now, twenty-four years later, having completed a range of challenging courses, including a sex offender treatment program, discipline, psychology, and probation staff in the prison have written a series of positive reports, recommending that he is ready to move to open prison, in preparation, maybe, two years down the line, for release on life license under probation supervision.
He is not exceptional. Each year in England and Wales some two hundred lifers are released after the tariff or punishment period of their sentence, set by a judge, has expired. At the end of the tariff period, their cases are reviewed every two years by a parole board, consisting of a judge, a psychiatrist, and an independent member, at an oral hearing to test whether they can be safely transferred from secure to open prison and from open to the community under license. The test for release is whether the prisoner still represents a risk to life and limb.
In England and Wales there are approximately five thousand lifers in prison, most of whom will be released under license; there are less than thirty lifers in the system serving a whole-life tariff. By contrast, in the United States, one in four of the 130,000 lifers in state prisons or federal institutions are serving life without the prospect of parole. The reason for this appears to be not more crime in the United States but the result of longer mandatory sentences and a more restrictive parole policy.
The irony is that most released lifers do well, get jobs, settle down with a new partner, and stay out of trouble. Why? Most have matured over a period of ten to twenty years in prison, have got themselves an education, taken responsibility for their past including the devastating impact of their homicidal behavior on the victim and his family, and are acutely aware that one false move could lead to a return to prison. Less than 2 percent of the released group commit a grave offense after release.
Containment is not enough. Whilst the truly dangerous will always need to be locked up, perhaps for a lifetime, the majority of lifers have the capacity, given the opportunity by a legislature and an informed public, to mature, face the consequences of their past, and start to lead responsible lives once more. Is Europe, or indeed England and Wales, so different in respect of what we do about the ultimate crime and punishment that we cannot learn from each other?
John Harding
Parole Board Member for England and Wales
Visiting Professor in Criminal Justice Studies, Hertfordshire University
Winchester, England
Hilary Mantel replies:
I'm indebted to John Harding for widening the terms of the debate. "Lock 'em up and throw away the key" doesn't amount to a penal policy, and it's dismaying to find US advocates of the abolition of capital punishment—even those who are as compassionate and informed as Sister Helen Prejean—offering the prospect of whole-life imprisonment as a kind of consolation prize to a worried public. I concede that the prospect of killers being released to kill again is terrifying, and that there will always be some prisoners who, in any jurisdiction, must never be released. But what should concern the public more immediately is that basic defects in the criminal justice system have been revealed by close examination of capital cases. Again and again, the mechanism for establishing the facts of a case is shown to be flawed. If this is true for cases where the death penalty is demanded, it is likely to be true for all homicide cases; and for lesser cases as well?
On the question of whole-life sentences, the figures John Harding quotes speak for themselves. Surely, there are very few human beings wholly incapable of redemption? At least, it seems the mark of a civilized society to think there are not. How, except by inhuman rigor, do you contain a prisoner who has no hope? What does a prison look and feel like, if it has abandoned the function of rehabilitation and is devoted only to shutting away people who are regarded as dangerous animals?
I felt tempted to add into my original review a passage which said, "there is another way of doing things," and of course it's the way that John Harding describes. But I didn't want to divert from the main topic, or sound like a smug Brit. After all, there's plenty wrong with our penal system, and we are not immune to pressure from "public opinion" whipped up by tabloid newspapers. But our judges and lawyers are not dependent on people-pleasing to keep their jobs; they don't have to run for election and satisfy the ill-informed knee-jerk retributionists. It's all a bit of a puzzle for democrats, I think.
Subsidiarity and a "Color-Blind" Society
The ongoing riots in France seem to carry lessons for our understanding of cultural pluralism and subsidiarity. An article in today's London Times notes that:
Under the ethnically colour-blind “French model”, the immigrant workers who came in the 1950s and 1960s from the former colonies in North and black Africa were to be regarded as equal citizens. They and their descendants would take advantage of the education system and generous welfare state to assimilate with “white” France. To promote the idea of assimilation, neither the State nor any other body publishes statistics on ethnic or national origin. . . . Laws supposed to promote integration and oppose multiculturalism, such as the ban on Muslim headwear in schools, have often heightened resentment and the feeling of exclusion. This has in turn fed the rise of Muslim radicalism, which has now become the dominant creed of the young in the French ghettos.
France has always deemed its model superior to the Anglo-Saxon approach of diversity, which has enabled ethnic minorities to retain strong bonds in cultural and religious communities. France calls this “comunitarism” and says that it promotes ghettos, exclusion, poverty, race riots and religious extremism that can ultimately lead to actions such as the London bombings.
It seems that subsidiarity would call for a middle ground to be explored in which a subcommunity's economic integration with society is achieved without purporting to negate the cultural or social characteristics that define the subcommunity. Perhaps the Anglo-Saxon approach has too often tended toward economic isolation, and the French approach toward cultural negation. And France's color-blind approach may be doubly problematic, as it ultimately brings economic isolation as well given the futility of the cultural task -- i.e., Muslim communities will remain different from the surrounding culture in important ways, and unless economic policy takes account of those differences, the cultural enclave can become an economic island. Obviously, easy answers are hard to come by, but it seems that subsidiarity should be one component of the question.
Rob
on moral quietism: another response to Tom
I have a couple of thoughts on this. I don't think that Justice Scalia means to articulate a broad doctrine of Christian timidity. In fact, most of his writing about the role of judges is that that they shouldn't be promoting a moral agenda because that is the responsibility of those who have direct input on the democratic process. So, judges ought to be quietist, but other political actors should not. I don't think Justice Scalia at all has in mind the idea that the faithful ought to privatize the moral views that they hold. Justice Scalia's comments are more directed at the hierarchy. (Perhaps he is thinking about Vatican II's exhortation that it is the responsibility of the laity to build up the temporal order.) Even here, his view doesn't seem to be that the hierarchy should not be making moral statements or should not be trying to influence the moral development of the faithful. He seems to be objecting to "creeping infalllibility"--where non-binding moral teachings are treated as such because that would he says, in the matter of the death penalty, drive Catholic out of public service.
Although some of his language is more sweeping than I am suggesting here, I don't think that it is appropriate to charge Justice Scalia with advocating some broad-ranging doctrine of moral quietism or Christian timidity.
Richard
Scalia, the Church, and Moral Quietism: A Response to Tom
Like Tom, I think that several of Justice Scalia's arguments in his Pew Forum speech (which I remember well, in part because I was present at the event) are not convincing. (In particular, I think that Justice Scalia's argument that if the death penalty is immoral, Catholics must resign from the bench, is quite weak). And, I agree with Tom that the Church should not stay its teaching hand -- on a matter where the Church has a clear message to impart and that is not so technical or fact-bound that the Church's leaders probably lack the necessary expertise or competence -- simply because most people (or even most Catholics) will disagree. Tom continues:
[T]he very fact that the Pope didn't claim his anti-death-penalty exhortations were formally binding is all the more reason, it seems to me, to encourage them as moral statements. The Pope took a moral stand and invited others to join him on that path solely on the basis of his arguments, without suggesting that those arguments were ecclesiastically binding.
Justice Scalia's logic seemed to be that unless the Church is ready to label a public moral issue as one of those very few that are foundational or non-negotiable, then it should make no moral statements at all on the issue that would be politically unpopular (and thus "imprudent"). I always found that to be a strikingly extreme position of Christian timidity (and probably -- though theologians can correct me on this -- a degraded notion of "prudence").
I largely agree, but do have these concerns: "Non-binding" moral arguments, made by bishops who are (Catholics believe) the successors to the Apostles and charged by Christ with teaching and guarding the faith, are (I worry) likely to be (a) misunderstood by those who hear them as "pronouncements" or "dictates", or (b) misused by Bishops (and bishops' conferences) seeking to promote a particular policy position by exploiting their position and moral authority, or (c) misused by those who happen to agree with the arguments, but couldn't care less about the Bishops and their teaching role. These are not reasons for "quietism", but they are reasons (it seems to me) for caution.
Catholic law schools
Thanks to Father Araujo and Amy for their insightful reflections on this topic. I want to make a brief comment prompted by Amy's thoughts.
I have mentioned this before when we have had these discussions. I think the place to start is with Ex Corde Ecclesiae. (I disagree with Tom Shaffer about this. I think Ex Corde and the lengthy debate about its implementation played an enormous role in stimulating discussion about the nature of Catholic universities and law schools. I think that Ex Corde has thus far largely failed to change the direction of most Catholic insitutions.)
The orientation provided by Ex Corde is critical. The first universities were "born from the heart of the Church." Law schools that want to be a part of this great and noble tradition ought to view themselves as Catholic insitutions. They do not inhabit some space between the Church and the world of (secular) legal education. As a Catholic institution, a Catholic law school ought to be an "authentic human community animated by the spirit of Christ."
I am increasingly of the view that the presence of a Catholic community is really essential. We tend to focus on the curriculum and this is certainly of great importance. It is important to have a jurispridence class where students can learn about the natural law tradition. It is important, we believe, to make a more systematic attempt to bring the richness of the Church's reflections on law and morality to bear on every course we teach. But, it is not enough that a student has an opportunity to learn something about the Catholic intellectual tradition or that the student has the opportunity to attend Mass. (Princeton is not a Catholic school just because Robby George is on its faculty; the University of Illinois is not a Catholic school because the Newman Center there has Mass several times a day.) The institution itself needs to be Catholic. I think it is really important that the institution has a rich liturgical life. Here at Ave Maria, we have a Mass of the Holy Spirit to begin the academic year. We have a Respect Life Mass in October. We have Mass three times a day and Eucharistic Adoration, etc., etc. These things are not on the periphery of the school, although they are obviously optional. It is important that the students see that faculty participate in these activities. I remember how important it was to me in college to have professors who took their Christian faith seriously. It sends a message that is most likely more powerful than our words when the students see their professors trying to integrate faith and reason in their professional work and trying, certainly imperfectly, to live out their faith in their family life and in everything else they do.
In order to have a Catholic community that sends these messages, the law school must have more than a critical mass of Catholics, if that is meant in the sense described in Grutter and Gratz. There must be a majority of Catholics on the faculty, and most likely in the student body as well. This should not be exclusive. One of the more interesting things to me about our short history here at Ave Maria is that we have attracted a relatively large number of Mormons. They are as enthusiastic about our mission as the Catholics. I think, and they have said this many times, that the Mormon students appreciate the links we try to draw between faith and reason and law and morality, and that they enjoy the community here (even though they don't obviously share fully in the liturgical life) and especially the community's support for family life.
Richard
The Rise of Identity-Based Jurisprudence (?)
Today's Washington Post has an article on the coming Catholic Supreme Court, containing a complaint from the Feminist Majority Foundation that non-Catholics and non-believers are now underrepresented on the Court. This is, of course, a dangerously silly perspective on the Court, but doesn't this complaint make a certain degree of sense given the current public discourse? After all, President Bush himself advertised the relevance of Harriet Miers' religion to her nomination, and Tom DeLay's successful recusal motion in his criminal case simply takes the President's Miers defense to the next outlandish step. In the Post article, Gerry Bradley may further this trend with his comment about the Catholic justices' "moral traditionalism, a position which is surely in line with their Catholic faith and which they hold, I should think, at least partly due to their faith." And USC poli sci prof Howard Gillman also comments that many conservative Catholics went into the legal profession "because they felt the constitutional jurisprudence of the country was not reflecting their values," and that he thinks we're "seeing the fruits of those efforts now."
Am I overstating this trend of legal instrumentalism effectuated through judicial identity? (Dennis Hutchinson, for example, is quoted in the article for the notion that judicial ideology trumps church doctrine.) If the trend is real, does it simply represent the overdue articulation of the fact that judicial identity has driven jurisprudence all along, or have the culture wars brought us to a new, starker stage of identity-based jurisprudence?
Rob
The Sullivan/Scalia Position in Favor of Moral Quietism
I agree with Rick that Andrew Sullivan is over the top in his blog post attacking Catholic leaders for taking moral stands and applying them to public officials is over the top -- including Sullivan's warning that such stands "unwittingly breathing new life into anti-Catholic prejudice, and new force behind the exclusion of Catholics from public life in a pluralist democracy."
Interestingly, though, Justice Scalia made a similar argument to Sullivan's in his Pew Forum speech on the death penalty a few years ago, criticizing the Pope and bishops for taking a stand against the death penalty:
I do not think it would be a good thing if American Catholics running for legislative office had to oppose the death penalty. Most of them would not be elected. If American Catholics running for governor had to promise commutation of all death sentences, most of them would never reach the governor’s mansion. I do not think it would be a good thing if American Catholics were ineligible to go on the bench in all jurisdictions imposing the death penalty, if American Catholics were subject to recusal when called for jury duty in capital cases.
I find it ironic that the church’s new, albeit non-binding, position on the death penalty, which if accepted would have these disastrous consequences, is said to rest upon, of all things, prudential consideration. Is it prudent when one is not certain enough about the point to proclaim it as an article of faith – and with good reason given the long and consistent Christian tradition to the contrary? Is it prudent to effectively urge the retirement of Catholics from public life in a country where the federal government and 38 of the states, comprising about 85 percent of the population, believe the death penalty is sometimes just and appropriate?
Now I acknowledge that Justice Scalia's argument is that when you are changing the historic position, and not yet willing to call the change a bedrock requirement, then you should consider these "prudential" factors. But the very fact that the Pope didn't claim his anti-death-penalty exhortations were formally binding is all the more reason, it seems to me, to encourage them as moral statements. The Pope took a moral stand and invited others to join him on that path solely on the basis of his arguments, without suggesting that those arguments were ecclesiastically binding.
Justice Scalia's logic seemed to be that unless the Church is ready to label a public moral issue as one of those very few that are foundational or non-negotiable, then it should make no moral statements at all on the issue that would be politically unpopular (and thus "imprudent"). I always found that to be a strikingly extreme position of Christian timidity (and probably -- though theologians can correct me on this -- a degraded notion of "prudence"). I'm surprised that more conservatives didn't criticize him for the argument; it seems to me that people let their substantive support for the death penalty (and for Justice Scalia overall) obscure the implication of his position.
Tom
Recent Posts
Categories
Monthly Archive
StatCounter
PageViews
Since February 19, 2008
