Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Saturday, December 16, 2006

By Michael Perry

Unpublished Litany
Thomas Merton

It yawns at me the cavernous gulf.
Find, find the nuns and make them pray.
De ore Leonis, libera nos Domine; and
  again, De manu canis unicam meam.
Hand of the dog reaching out
  from under fur, lousy false dog.
What is to be done?
Miserere.

All the goats, all the dogs, all the
  blank cattle, all the brute cattle, all
  the horned cattle, all the snarl,
all the fake,
all the bellow,
all the monster,
one horn, one man's foot,
one beast's claw, one hen's eye,
one yak's tooth,
one of everything mister,
one of everything.

These are my opinions of today's cosmos.
St. Giles, defend
us.

Reflecting Modernity

By Elizabeth Kirk

I’d like to thank Rick Garnett for his kind invitation to join the conversation at Mirror of Justice, and apologize for my tardiness in jumping into these stimulating conversations.  I have many excuses, but I think they are better left unpublished.  So, let me simply express my hope that blogging will become less unnatural for me – and therefore more frequently practiced – as time goes on. 
As many of you know, I am on leave from Ave Maria School of Law (where fellow MOJ-er, Richard Myers, is my colleague) and am currently an Associate Director at the Notre Dame Center for Ethics and Culture.  As Rob so graciously acknowledged, the Center just wrapped up what I will humbly describe as an exceptional conference, Modernity:Yearning for the Infinite.  In an address to the Doctrinal Commissions of the Bishops’ Conferences of Latin America at Guadalajara, Mexico in 1996, then Cardinal Ratzinger explored the now-familiar theme of the “dictatorship of relativism” – described by him as the central problem for the faith in modern times.  Cardinal Ratzinger’s reflective words in the final paragraph inspired the title of our conference: “In man there is an inextinguishable yearning for the infinite.  None of the answers attempted are sufficient.  Only the God himself who became finite in order to open our finiteness and lead us to the breadth of his infiniteness responds to the question of our being.”  Our aim was to bring together a large number of respected scholars representing all the main academic fields, from Catholic, non-Catholic, and secular institutions, to engage in a spirited discussion of the the intellectual epoch we have come to call modernity.  In doing so, we were able to host a number of distinguished scholars and Rob rightly mentioned the lectures of Alasdair MacIntyre, Steven Smith and Peter Griffiths as particular highlights of the weekend.
The Center’s annual fall conference is distinguished by its interdisciplinary format, as it provides scholars from a wide variety of disciplines the opportunity to meet one another, to engage one another in intellectual discussion and debate and to share collegial conversation over meals – surely a foretaste of the heavenly banquet!  But, one of the unique aspects of the Center’s annual fall conference is the number of papers and talks delivered by scholars of all sorts – not only distinguished professional academics – but also students (graduate, undergraduate and sometimes even high school students), members of religious communities, homemakers and even a practicing attorney!  In addition to the 15 invited speakers, we had over 100 papers delivered regarding the impact of modernity upon work in philosophy, theology, law, literature, the arts, as well as other fields of intellectual inquiry and endeavor. 
The interdisciplinary nature of the conference being properly lauded, there were a fair number of legal presentations.  I will briefly mention a few.  Bruce Frohnen, Kevin Lee and Nora O’Callaghan, all of Ave Maria School of Law, and MOJ-er, Rob Vischer, participated in a panel discussion entitled, “The Crisis of Modern Law and Legal Theory.”   Richard Stith, of Valparaiso Univ. School of Law, spoke about the politicization of judicial interpretation in “Realists, Madmen and the Death of Law.”  Lee Strang, of Ave Maria, spoke on “The Enlightenment, American Legal Thought, and the Unfulfilled Quest.  George Smith, my former colleague at The Catholic University of America, presented “Biotechnology, Spirituality, Modern Science and Law: Shaping or Testing the New Modernity? (or, The Curse of the Itching Ears).”  Finally, John Stinneford, Univ. of St. Thomas School of Law, presented "Criminal Punishment in America": Modernity's Role in Vindicating and Undermining Human Dignity."  Abstracts of all conference papers are available here, and videos of the invited lectures will be posted on our website in the new year.
And what did that practicing attorney talk about?  In “Modernity and Imagination,” Aaron Potter argued that, in modernity, man has lost the sense that imagination represents something that is real. Rather than escape reality, or reject imagination, he hopefully called for a renewed discipline of the human imagination, which “exercised aright can lead us back to reality.”  Well said, and - coming from the trenches of a modern law firm - truly reflective of this rich and diverse conference.

Friday, December 15, 2006

Eduardo Penalver on Natural Law and the Constitution

By Michael Perry

To download/print, click here.

Restoring the Right Constitution?
EDUARDO M. PENALVER
Cornell Law School
Cornell Legal Studies Research Paper No. 06-048
Yale Law Journal, Vol. 116, 2007

Abstract:    
After years of relative neglect, the past few decades have witnessed a dramatic renewal of interest in the natural law tradition within philosophical circles. This natural law renaissance, however, has yet to bear much fruit within American constitutional discourse, especially among commentators on the left. In light of its low profile within contemporary constitutional debates, an effort to formulate a natural law constitutionalism is almost by definition an event worthy of sustained attention. In Restoring the Lost Constitution, Randy Barnett draws heavily upon a natural law theory of constitutional legitimacy to argue in favor of a radically libertarian reading of the Constitution. Barnett's important book, and the substantial commentary it has generated, may well help to generate interest in natural law constitutionalism. Unfortunately, his libertarian emphasis on unfettered rights of property and contract is likely to reinforce the notion that natural law theorizing is an activity best left to those on the rightmost end of the political spectrum. It would be a mistake, however, to understand Barnett's libertarian version of natural law constitutional theory as exhausting the possibilities of the tradition. Although Barnett's theory of constitutional legitimacy is infused with language drawn from the broader natural law framework, his "natural rights" theory, as he calls it, actually departs in significant ways from the classical natural law tradition. Moreover, there are substantial reasons to favor a version of natural law with implications for state power that are far more progressive than Barnett's. Nor does Barnett establish, as he attempts to do, that the Constitution itself somehow locks us into a commitment to his libertarian, natural rights version of natural law theory. Indeed, without changing much in Barnett's account, it is possible to convert his theory from one that supports the conservative goal of limiting the power of government, restricting it to the narrow task of facilitating or preserving property and contract rights, into one that justifies a far more progressive view.

       
 

Jewish Law in American Legal Scholarship

By Rick Garnett

If you are going to be at the AALS in DC on Jan 4, check out this fascinating program sponsored by the Section on Jewish Law , entitled "Emerging Applications of Jewish Law in American Legal Scholarship." Of particular interest will be a paper by my Villanova Law colleague Chaim Saiman on "Christian Legal Theory--A Rabbinic Perspective." I've had several discussions with Chaim about his paper, and he has some quite original thoughts about how fundamental differences in Jewish  and Christian thinking about moral theology influence our understandings of law. I think we are sorely in need of dialogue with our Jewish colleagues about our Catholic legal theory project -- we are both interested in how our religious faith influences the way we understand and do law, lawyering and legal scholarship, so the differences and similarities between the Catholic/Christian and Jewish perspectives on this question would be very interesting.

http://www.aals.org/am2007/thursday/jewishlawflyer.pdf

By Michael Perry

The 'greening' of institutional Christianity

By John L Allen Jr
Dec 15 2006 - 07:57   
          
All Things Catholic by John L. Allen, Jr.
  Friday, Dec. 15, 2006 - Vol. 6, No. 15 

When Pope Benedict XVI and Patriarch Bartholomew I of Constantinople met recently, the encounter was spun in a variety of ways: As an effort to reunite Eastern and Western Christianity; As an attempt to forge a united Christian front vis-à-vis Islam; Eeven as a bid to pool resources to combat runaway secularism in Europe.

What the meeting was not generally seen as -- though it easily could have been -- was an encounter between two outspoken environmentalists, struggling to stir the conscience of the world about a mounting ecological crisis.

While environmentalism has long been a cause more associated with the secular left, the increasingly intense engagement of both the patriarch and the pope, who cannot by any stretch of the imagination be seen as avant garde figures, suggests a broad "greening" of institutional Christianity.

[The whole piece by John Allen is well worth reading.  To do so, click here.]

Sisk on Judicial Decisionmaking

By Rick Garnett

Over at the Empirical Legal Studies blog, our own Greg Sisk is posting about "neglected variables in empirical research on judicial decisionmaking."  (See also here and here.)  Of particular interest will be Greg's discussion of "religion":

At this point, I turn more directly to shameless self-promotion, as religion as a variable has been and continues to be the focus of my current empirical interest in judicial decisionmaking. . . .

In my collaborative work with Michael Heise and Andrew Morriss, we focused upon various religion-oriented variables in studying religious liberty decisions.  Gregory C. Sisk, Michael Heise & Andrew P. Morriss, Searching for the Soul of Judicial Decisionmaking:  An Empirical Study of Religious Freedom Decisions, 65 Ohio St. L.J. 491 (2004).  During the past half century, constitutional theories of religious freedom have been in a state of great controversy, perpetual transformation, and consequent uncertainty.  Given the vitality of religious faith for most Americans and the vigor of the enduring debate on the proper role of religious belief and practice in public society, a searching exploration of the influences upon judges in making decisions that uphold or reject claims implicating religious freedom is long overdue.  Many thoughtful contributions have been to the debate about whether judges should allow their religious beliefs to surface in the exercise of their judicial role.  Yet much less has been written about whether judges’ religious convictions do affect judicial decrees, that is, whether religious beliefs influence court decisions, consciously or unconsciously.

In our comprehensive empirical study of federal circuit and district judges deciding religious freedom cases, the vitality of religious variables to a more complete understanding of judicial decisionmaking became abundantly clear.  Indeed, the single most prominent, salient, and consistent influence on judicial decisionmaking was religion—religion in terms of affiliation of the claimant, the background of the judge, and the demographics of the community, independent of other background and political variables commonly used in empirical tests of judicial behavior.  Thus, in light of the findings of this study, when searching for the soul of judicial decisionmaking in the legal or political sense, we concluded that researchers should not neglect the presence and influence upon the judicial process of matters that affect the soul in the theological sense.

Of course, if religious variables were to have an influence, one would expect it to emerge in cases that involve religious liberty.  Is there justification for studying religious variables in the context of other research questions?  Only time – and experimentation – will tell.

Thursday, December 14, 2006

Human Worth as Collateral

By Rob Vischer

  1. Northeastern law prof Rashmi Dyal-Chand has posted her paper, Human Worth as Collateral.  Here is the abstract:

Human worth has taken on a surprising new role: that of market asset. Specifically, lenders in radically different contexts are using their borrowers' human worth as collateral in loan transactions. The two examples of this new collateralization that I examine are credit card lending in the United States and microlending programs in the Third World. I conclude that the use of human worth in these two contexts is too similar to be coincidental. Rather, this new collateralization is a product of globalization. For those interested in the effect of law on globalization, this convergence in the market for credit teaches important lessons. In both the contexts I examine, the laws governing secured and unsecured lending fail to recognize human worth as collateral. For this reason, the new collateralization serves as a counter-example to the claimed centrality of the rule of law in economic development.

And here's an excerpt from the paper:

[L]enders in very different contexts have begun to collateralize human worth. I build my case on two examples. The first is the puzzlingly high level of unsecured lending to American consumers by means of the credit card, despite the ease of secured home equity lending. I conclude that this mystery is partly explained by credit card lenders' collateralization of human worth through the mechanism of credit reporting. The second example is the puzzlingly high level of unsecured lending to impoverished rural women in Bangladesh by means of the Grameen Bank's microlending program. I conclude that this mystery is also explained by the lender's collateralization of human worth, this time through the mechanism of peer lending.

I have not read the entire paper, but this line of inquiry seems to be rich with implications for Catholic legal theory.  For example, does bringing the language of human worth into the discourse provide a more robust -- and anthropologically authentic -- ground for criticizing predatory lending?

TOWARD A THEORY OF HUMAN RIGHTS

By Michael Perry

My new book has just been published by Cambridge University Press.  The title:  Toward a Theory of Human Rights:  Religion, Law, Courts.  The table of contents, introduction, and conclusion are available for download at SSRN (here).  This is the abstract I posted on SSRN:

Abstract:

Jurgen Habermas has remarked that “notwithstanding their European origins, . . . in Asia, Africa, and South America, [human rights now] constitute the only language in which the opponents and victims of murderous regimes and civil wars can raise their voices against violence, repression, and persecution, against injuries to their human dignity.” Nonetheless--and as philosopher John Searle recently wrote--“we [do not] have a clear theory of human rights. On the contrary, . . . the necessary work is just beginning.” My new book, Toward a Theory of Human Rights (Cambridge University Press), is an effort to contribute to that “necessary work”.

I pursue three inquiries in the book:

1. What is the morality of human rights — and can a secular worldview ground (embed, make sense of) that morality?

2. What is the relationship of the morality of human rights to the law of human rights? In addressing that question, I focus on three controversial issues: capital punishment, abortion, and same-sex unions.

3. What is the proper role of courts in protecting, and therefore in interpreting, the law of human rights--in particular, constitutionally entrenched human rights law? I give special attention to the Supreme Court of the United States.

For a fuller overview of the questions I address in the book, interested readers can download (below) the book's table of contents, introduction, and conclusion.

HARVARD REJECTS "REASON AND FAITH"

By Michael Perry

Chronicle of Higher Education
Thursday, December 14, 2006

Harvard Drops Religion Requirement From Proposed New Curriculum

By THOMAS BARTLETT

It looks as if Harvard University students won't have to take a religion course after all.

In October, a university committee called the Task Force on General Education released a proposal to overhaul Harvard's core curriculum. The most-talked-about change would require students to take a course in a category dubbed "Reason and Faith." At the time, Louis Menand, a co-chair of the committee, said the requirement would help students understand "rapid change and conflicts between reason and faith."

But in a letter about proposed curriculum changes that the committee sent to faculty members at Harvard this month, that category was dropped. The letter, which has not been made public, says the category is not needed because religion-related classes will be offered in other areas of the curriculum.

Views like those expressed in an essay by Steven Pinker, a Harvard professor who opposed the Reason and Faith requirement, may have played a role in derailing the requirement.

In his essay, published in The Harvard Crimson and adopted from comments he shared with the committee, Mr. Pinker, a professor of psychology, wrote that the requirement gave religion "far too much prominence."

In an e-mail message on Wednesday, Mr. Pinker called dropping Reason and Faith "an excellent change."

The committee has suggested that a new category, called "What It Means to Be a Human Being," replace Reason and Faith.

Neither Mr. Menand nor his co-chair, Alison Simmons, a professor of philosophy, could be reached for comment on Wednesday.

Final recommendations from the committee are expected to be released in January.

Wednesday, December 13, 2006

Judge bars naming adulterer

By Rick Garnett

This story, from the Telegraph, seems quite revealing: 

A cuckolded husband was banned by the High Court yesterday from naming a married public figure who conducted an affair with his wife.

In what is believed to be the first case of its kind, Mr Justice Eady granted the adulterer — who may be identified only as CC — an injunction against the betrayed husband, referred to as AB.

The judge suggested that even an adulterer might have a legitimate expectation of privacy. AB had wanted to expose CC in the media. . . .

In his ruling, the judge said: "There is a powerful argument that the conduct of an intimate or sexual relationship is a matter in respect of which there is 'a reasonable expectation of privacy'."

Is the "expectation of privacy" that an adulterer has -- let's assume that, subjectively, he has one -- really one that the law should regard as "legitimate" or reasonable?  Is it an expectation that the law should -- as law does -- help to create and protect?

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