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.

Wednesday, April 11, 2007

Skepticism About Lawyers as Prophets

In response to my Shaffer-inspired suggestion that Christian lawyers should function as prophets, Joe Knippenberg wonders:

Does this mean that Christian lawyers (or perhaps Christians simply) ought always and everywhere to be in an adversarial relationship with the powers that be? Should they never be "judges" or "kings," but only prophets? I mean that question somewhat seriously. A judge or a king has a responsibility for the less than savory work of administering a fallen human order; prophets don’t. Do we want to train lawyers who are "too good" for the normal workings of a secular state, who are so pure in their pursuit of justice that they’re perhaps impatient with the rule of (imperfect human) law?

Great point, and one with which I still struggle.  Two comments: first, I don't think the lawyer-prophet needs to be disconnected from the real world.  But I do think the lawyer-prophet needs to value her witness over the maintenance of power for power's sake.  That's one problem with mainstream evangelicalism's close association with the GOP (and with mainline Protestantism's close association with the Dems).  Second, while this is an important issue to explore, in practical terms, it's not a pressing one.  Perhaps I've been reading too much Hauerwas, but I'm inclined to doubt whether Christian lawyers will ever suffer from being always and everywhere adversarial with the powers that be.  Humans -- and lawyers especially -- are drawn to power like moths to flame.  Today prophets in the legal profession are few and far between.  One day an overabundance of separatist and subversive Christian lawyers might become a phenomenon that needs to be addressed, but we're nowhere near that point now.  In all likelihood, presenting our students with the prophetic model may heighten their skepticism (in a healthy way), but it won't trump human nature and marketplace dynamics.

A related criticism of the lawyer-as-prophet model, raised by one of my seminar students last year after reading Shaffer's essay, is that the biblical prophets were called individually and unmistakably by God to that role.  There is no professional class of prophets.  Is it possible to speak categorically of Christian lawyers and the substance of their calling?

What Can We Learn From Monica Goodling?

By invoking her Fifth Amendment privilege against self-incrimination in the wake of the US attorney firings, former DOJ official Monica Goodling has brought quite a bit of attention to her alma mater, Regent University Law School.  The New York Times, in reporting her recent resignation, deemed it newsworthy that Goodling attended a law school founded by Pat Robertson and a college (Messiah) which, The Times commented, describes itself as being "committed to an embracing evangelical spirit."  The Boston Globe has now profiled Regent, reporting that its graduates' employment prospects have flourished under the Bush administration and suggesting that the prospects have turned on ideology more than quality.  An excerpt:

As the dean of a lower-ranked law school that benefited from the Bush administration's hiring practices, Jeffrey Brauch of Regent made no apologies in a recent interview for training students to understand what the law is today, and also to understand how legal rules should be changed to better reflect "eternal principles of justice," from divorce laws to abortion rights.  "We anticipate that many of our graduates are going to go and be change agents in society," Brauch said.

For those of us trying to build Christian law schools, the challenge is to help form lawyers who will be agents of change in society yet still bear witness against the corrupting influence of individual and institutional power.  Putting aside questions about the substance of the "eternal principles of justice" that Regent grads might be pursuing, how do we seek to shape lawyers in order to have influence without becoming part of the problem?  I don't know Monica Goodling, but I have no doubt that she intended to do God's work when she joined DOJ.  The lasting impression she leaves to the wider world, though, is of having behaved unethically in service to a political power play.  It is more in keeping with Jerry Falwell's understanding of a Christian lawyer ("We'll be as far to the right as Harvard is to the left.") than Tom Shaffer's, who calls lawyers to look to the biblical prophets as models.  As Shaffer puts it, believers have

an odd political theology -- a political order called into being by God, which political order is subject to repeated (even perpetual) subversion, systematic subversion set up and perpetuated by God.  God's subversives are the Prophets -- disinherited from political legitimacy, protesting, pointing to a Lord who "decisively intrudes, even against seemingly impenetrable institutions and orderings." Put in place by God to make power uncomfortable, not just for tyrants but also for legitimate rulers, rulers the Lord put in place to begin with.

(15 St. Thom. L. Rev. 469)  In a marketplace where power and influence are the coveted commodities and prestige-driven rankings are king, how can an institution facilitate the formation of lawyers as prophets?

Tuesday, April 10, 2007

Should the Pope Be More Positive About Iraq?

Was Pope Benedict adopting an unduly Eurocentric and pessimistic view when he stated, in his Easter message, that "nothing positive comes from Iraq, torn apart by continual slaughter as the civil population flees?"  Michael Novak says yes, characterizing the Pope's remarks as "a low point."  The positive developments that Novak sees, it seems, are the fact that Shiite cities are now open for feast days, the fact that American troops allowed an anti-American protest to proceed on Sunday, and the fact that 200 newspapers and magazines are being published now that did not exist under Saddam.  I guess it's hard for Benedict to focus on the newspaper industry in light of the daily body count

Christianity as Covenant: Jewish Perspective(s)

In honor of Passover and Easter, San Diego law prof Maimon Schwarzschild comments on a recent book by Orthodox Jewish theologian Irving Greenberg suggesting that Jews should consider Christianity an authentic covenant.  He also links to an interesting review of the book by an intellectual journal of mainstream Orthodoxy.  An excerpt from the review:

The thrust of this book is . . . the existence of multiple (or at least two) covenants between God and humanity. At the very time when God called upon the Jewish people to undertake enhanced responsibility for the destiny of the world, He broadened the constituency of His covenantal love by sending a signal, or a group of signals, that launched Christianity. Greenberg’s argument for this position is multifaceted: God’s love is not limited to a single group; all human beings are created in His image; Maimonides pointed to a divinely guided eschatological purpose in the establishment of Christianity as a religion grounded in the Jewish scriptures; the inevitable moral, intellectual, and religious distortions that result from restricting election to a single group can be corrected by other groups with different emphases.

The first three of these points are fully valid, and there is considerable truth in the fourth as well. Since Maimonides regarded the establishment of any new religion as illegitimate and saw Christianity in particular as avoda zara, his assertion that it is part of a divine plan for spreading knowledge of Torah raises evident difficulties. But he did say this, so that there exists a precedent for maintaining that God wanted Christianity to develop (though probably not in the precise form that it has taken), and I see no principled objection to speculation that would broaden the range of divine motives beyond the one that Maimonides proposed. To apply the language of covenant, however, is not consonant with biblical teaching or Jewish tradition.

Monday, April 9, 2007

Martin Marty on "The Pope [i.e., Benedict XVI] and Reason"

Sightings  4/9/07

The Pope and Reason
-- Martin E. Marty

"Europe is the faith" and "the faith is Europe."  Hilaire Belloc, noted Catholic writer in the 1930s, looked out from England on the rest of Europe and uttered what was then still partly plausible.  Today "the faith's" memory remains overwhelmingly European.  The archives and libraries, cathedrals and chapels, pilgrimage sites and tourist attractions in Europe beckon more than do their counterparts in Latin America (which would come in second in numbers of Christians) or Asia or Africa.  Yet "memory" and "faith" are not exactly the same thing, and the empty cathedrals and the constant decline in church participation suggest that one must look elsewhere to find where and how "the faith" is prospering.

Onto this scene came Pope Benedict XVI, whose moves Jane Kramer, European correspondent for the New Yorker, has been observing, as in her much-discussed account "The Pope and Islam" (see References, below).  Kramer herself is, by assignment and instinct, "Eurocentric," but she is aware that other worlds and cultures and church cultures exist "out there."  Latin America, Africa, and Asia are precisely where the Catholic Church and other forms of Christianity, notably Pentecostalism, are surging, but they necessarily receive little mention in her piece.  At best, the pope looks beyond Western Europe to Eastern Europe, since his heart burns and he yearns for better relations with Orthodoxy.  Protestantism, in Kramer's account and Benedict's actions, does not seem to count for as much.

The proverbial elephant in the room for the pope is Islam, with which he has said he would like to engage in dialogue.  As Kramer tells it, he frustrates, and is frustrated by, Muslims, since those leaders with whom he would deal and the papacy with which they must deal are both closed systems, sure that they have an absolute hold on absolute truth.  This means that they have little to learn from each other, and turn more militant in order to hold loyalties.

One point on which Kramer focuses and which preoccupies others is the pope's basic approach to faith: He sees it grounded in reason of a particular sort.  Those (of us) who do not like to see faith dismissed as non-rational or even anti-reason can welcome that accent.  As Benedict's published speeches and the quotes in Kramer's article show, however, his "reason" derives from Greek philosophy fused with Western Catholic concerns, which he has mastered.  The pope's main concerns are to counter Europe's post-Catholic secularism and to help produce a trimmer, more assertive Catholicism that is sure of its identity.

One who is sympathetic with the pope's plight, given that agenda, might well question -- as Kramer does -- whether his definition of "reason" is itself so colored by the European experience that it must look almost philosophically sectarian to non-Christians, non-Catholics, and non-European-sectored Catholics.  What he means by reason is not what many "post-Vatican II" Catholics, as Kramer sees them, regard as inclusive.

Yes, the pope is Catholic, as the old saying goes, but "Catholic" implies "embracing the whole."  The pope frustrates those who contend that "the whole" does not derive only from Plato and Aristotle or Thomas Aquinas, super-magisterial though they may be.

References:
Jane Kramer's article "The Pope and Islam" appears in the April 2, 2007, issue of the New Yorker, and can be read at: http://www.newyorker.com/reporting/2007/04/02/070402fa_fact_kramer.

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Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.

Sunday, April 8, 2007

A response to Rick’s invitation

I would like to respond to Rick’s kind invitation to comment on Russell Shorto’s essay in today’s New York Times Magazine Keeping the Faith in which the author portrays the Pope as “the anti-secularist.” Mr. Shorto has undertaken an important project, but I think he could have done more in examining both the man he was reporting on (Joseph Ratzinger/Benedict XVI) and sources other than those who provided their own commentary and perceptions of the Pope. With regard to the man Mr. Shorter was reporting on, Papa Ratzinger has a long paper trail of articles and books from his scholarly pen and curial texts from his official pen that can be examined with detail and care. This kind of investigation does not seem to have been follow edin the preparation of Mr. Shorto’s essay. If such a study were done, there is no evidence to support that he did such a study. In his defense, I think Mr. Shorto read most or all of the Pope’s address that the latter gave in Regensburg last September, 2006. Unlike many commentators, Mr. Shorto’s remarks of the speech reflect his familiarization with what the Pope did say and did not.

With regard to his work as Prefect for the Congregation for the Doctrine of the Faith, Joseph Cardinal Ratzinger was responsible for a number of high-profile notifications and other disciplinary documents concerning the publications of several well-known authors. I am personally familiar with the Church’s concern about properly instructing readers, including the faithful, because the dozen or so articles and one book that I have worked on since I came to Rome to be a member of a Pontifical faculty have had to undergo review before permission was granted to proceed with publication. Each time I have set pen to paper (or fingers to computer keyboard), I have had to ask myself tough questions on how well and faithful was I exploring or commenting on ecclesial views on the issues that I was addressing. I frankly view this process no different than the one many American law professors use when they present in their first article footnote something along the lines: “I would like to thank the following for their helpful comments, criticisms, etc. on an earlier draft of this essay…” A major distinction between this procedure and the one that I have experienced is that I do not chose my reviewers. In any case, I would like to use these points as a segue to Mr. Shorto’s concluding paragraph in which he states:

Benedict may be right that the Catholic Church has a world-historic chance to transform Europe and bring about change. But the church’s own strictures could work against that. The paradox may be that for all his stylistic softening as pope, Joseph Ratzinger’s own labors through the decades, applying his life experience with such rigor to protecting and preserving the church, are precisely what prevent Europeans from reconnecting with their roots. “Think of the silencing of theologians in recent decades,” said Father Reese, the former editor of the Jesuit journal America. “The suppression of discussion and debate. How certain issues become litmus tests for orthodoxy and loyalty. All of these make it very difficult to do the very thing Benedict wants. I wish him well. I want him to succeed. But it seems everything he has done in the past makes it much more difficult to do it.”

I really wonder if honest debate and discussion have been silenced. The end result of notifications from the Pope’s former office, the CDF typically is a statement that the author’s views in a particular work or works do not conform to Catholic teachings. In some instances, the author may be instructed that he or she can no longer teach Catholic theology. The case of Fr. Charles Curran would be illustrative of this point. Under Cardinal Ratzinger’s tenure as Prefect of the CDF or as Pope, these are the sorts of conclusions reached in three recent disciplinary documents:

Theology arises from obedience to the impulse of truth which seeks to be communicated, and from the love that desires to know ever better the One who loves—God himself—whose goodness we have recognized in the act of faith. For this reason, theological reflection cannot have a foundation other than the faith of the Church. Only starting from ecclesial faith, in communion with the Magisterium, can the theologian acquire a deeper understanding of the Word of God contained in Scripture and transmitted by the living Tradition of the Church. Thus the truth revealed by God himself in Jesus Christ, and transmitted by the Church, constitutes the ultimate normative principle of theology. Nothing else may surpass it. In its constant reference to this perennial spring, theology is a font of authentic newness and light for people of good will. Theological investigation will bear ever more abundant fruit for the good of the whole People of God and all humanity, the more it draws from the living stream which—thanks to the action of the Holy Spirit—proceeds from the Apostles and has been enriched by the faithful reflection of past generations. It is the Holy Spirit who leads the Church into the fullness of truth, and it is only through docility to this “gift from above” that theology is truly ecclesial and in service to the truth. The purpose of this Notification is precisely to make known to all the faithful the fruitfulness of theological reflection that does not fear being developed from within the living stream of ecclesial Tradition.

The Congregation notes with satisfaction the steps already taken by the author and his willingness to follow the documents of the Magisterium, and trusts that his collaboration with the Doctrinal Commission of the Spanish Episcopal Conference will result in a text suitable for the formation of students in moral theology. With this Notification, the Congregation also wishes to encourage moral theologians to pursue the task of renewing moral theology, in particular through deeper study of fundamental moral theology and through precise use of the theological-moral methodology, in keeping with the teaching of the Encyclical Veritatis Splendor and with a true sense of their responsibility to the Church. In publishing this Notification, the Congregation for the Doctrine of the Faith is obliged to declare that the above-mentioned assertions contained in the book [which is named here along with its author identity] are judged to be serious doctrinal errors contrary to the divine and catholic faith of the Church. As a consequence, until such time as his positions are corrected to be in complete conformity with the doctrine of the Church, the Author may not teach Catholic theology.

Consistent with what has been presented, one can understand how, according to the author, any belief or profession of faith whether in God or in Christ cannot but impede one’s personal access to truth.  The Church, making the word of God in Holy Scripture into an idol, has ended up banishing God from the temple.  She has consequently lost the authority to teach in the name of Christ. With the present Notification, in order to protect the good of the Christian faithful, this Congregation declares that the above-mentioned positions are incompatible with the Catholic faith and can cause grave harm.

When I visited Mr. Shorto’s homepage moments ago, he has this brief passage on today’s essay in the New York Times Magazine which he entitles “Papal Pscyhe”:

On Easter Sunday I’ll have the cover story in the New York Times Magazine, about Pope Benedict XVI and his efforts to renew the Catholic Church in western Europe. In conversations with many people who know him (the Vatican declined interview requests with the Pope himself), I started to feel that I was getting a sense of the man. This is always a danger: how many of us really know our own family members, let alone someone we’ve never met? But in an odd way, it’s the very complexities and seeming contradictions of the man that led me to feel I was getting close. Here is one seeming contradiction that I was not able to put in the piece, because I couldn’t get enough sources on it. A respected church official—a Jesuit with close ties to the Curia—told me that on two separate occasions he has heard from Vatican insiders that the pope is open to the idea of ending the insistence on priestly celibacy. The reasoning is twofold: celibacy is not part of the origins of Christianity (it was instituted in the 12th century), and the church is suffering a dire shortage of priests, with officials in Latin America and Africa begging the Vatican to allow married men to serve. Of the several other church officials I queried on this point, none could confirm it, but on hearing it all said that it made some sense. Benedict cares deeply about the priest shortage, and as a theologian he knows the shaky ground on which the celibacy rule rests. When he called a gathering to revisit the issue last year, it was, according to my source, with this wish in mind. And yet the fact that the Vatican has in recent months only reaffirmed its policy of priestly celibacy also makes sense, according to the picture of Benedict’s personality that emerges from interviews. “He was a tireless enforcer when it was a matter of maintaining church policy, on abortion or homosexuality,” one source told me. “But he is also a fundamentally timid man, who won’t go out on a limb. If his colleagues aren’t willing to support such a bold move, he won’t make it.”

I’ll conclude by suggesting that these remarks from his home page may well reflect the perspectives of individuals that Mr. Shorto interviewed. However, they are the perspectives of those with whom he spoke and not those of the Pope. I doubt that Joseph Ratzinger, as priest, professor, bishop, prefect, or pope, was or is “a fundamentally timid man, who won’t go out on a limb.” Just look at what he has said and consider what he has done.   RJA sj

An Easter welcome

This piece, in the Washington Post, about the 2,000 or so adult converts being received this weekend in the D.C. area into full communion with the Catholic Church was, for me, a real heart-warmer.  So often, the stories about the Church involve scandal, decline, and vulnerability.  No doubt, these stories reveal a lot that needs to be taken seriously.  Still, in parishes large and small, all over the country, adults are following the Holy Spirit to Church.  It's a beautiful thing.

"Keeping the Faith"

The New York Times Magazine today has a cover story, "Keeping the Faith," which describes Pope Benedict XVI as the "anti-secularist" who "believes that the Roman Catholic Church in Europe faces a dire threat in secularism and that re-Christianizing the Continent is critical not only to the fate of the church but to the fate of Europe itself."  The piece is very long, but here is just a snippet from the early paragraphs:

Benedict is one of the most intellectual men ever to serve as pope — and surely one of the most intellectual of current world leaders — and he has pinpointed the problem of the age, as well as its solution, at the level of philosophy. His argument, elaborated in the years leading up to his election and continuing through his daily speeches and pronouncements, reduces to something like this: Secularism may be one of the great developments in history, but the secularism that holds sway in much of the West — that is, in Western Europe — is flawed; it has a bug in its programming. The mistaken conviction that reason and faith are two distinct realms has weakened Europe and has brought it to the verge of catastrophic collapse.

I'd appreciate others' reactions to the piece.

Resurrection and Justice

Wishing all a blessed Easter, one last Easter excerpt from the Education for Justice website (http://www.educationforjustice.org/)

Thoughts for Your Consideration

The data of Good Friday is not complete.
Another way of looking at things is possible.
The reality is bigger than at first expected.

The death of Jesus is not the last word or the end of the story.
Resurrection is the ultimate word of God about life and death.
In a world with lots of death, we are called to share Resurrection today.

Today’s letter to the Corinthians reminds us that something new is possible: “Let us celebrate the feast, not with the old yeast, the yeast of malice and wickedness, but with the unleavened bread of sincerity and truth.”

In the midst of awesome human problems and serious injustices, we believe something more is possible. We believe that resurrection is possible.

Change is possible. Growth is possible. Peace and reconciliation are possible. Something new is possible. Liberation for the poor and oppressed is possible. Social change is possible. Nations can work together for justice and peace. People can stand up and demand human rights. Society can provide health care for all. There is enough food so that everyone can eat. We can live in solidarity.

Our world knows the tragedy of divisions and hatreds between peoples and nations. Our world knows the scandal of poverty and economic injustice. More than ever, the world needs to experience resurrection.

More than ever we need a spirit that will help and heal the death, violence, and injustice of the world. More than ever we need to create a world where people are not oppressed by sinful structures. Peter in Acts reminds us that Jesus “. . . went about doing good and healing all those oppressed . . .” We are called to do the same.

An understanding of resurrection which does not address issues of justice is shallow and not consistent with the spirit of Jesus who lived, died, and rose to bring an end to all oppression and injustice.

Saturday, April 7, 2007

Georgetown Law Asserts its Catholic Identity?

I am always very hesitant to comment on this blog on the behavior of another law school for diplomatic reasons, but I am so astonished at what has just transpired at Georgetown that I must say a few things.

        First, this issue is old hat for us at Villanova. Several years ago, I prohibited the use of funds raised at a Villanova sponsored and supported auction to pay a student who would be doing "reproductive rights" advocacy at the leading supporter of such activism in Pennsylvania. While most students and alumni understood my rationale, some reacted with the kind of vitriol now being seen at Georgetown. We were attacked in the press and online, but the attack did give me the opportunity to articulate publicly why we could not endorse a type of action so fundamentally inconsistent with the Church's teachings. I drew a careful, casuistic treatment between situations  in which the academic freedom interest was strong, and the endorsement risk low, and cases (such as this non-credit bearing internship) in which the academic freedom interest was low and the endorsement risk very high. I was also assaulted with the "inconsistency" argument, ie, why don't we ban internships at the death-penalty-seeking DA's office, and didn't I really have some kind of one-sided political agrenda? My responses were very similar to Patrick Deneen's, so I won't belabor the fundamental/prudential distinction here.This was a Rubicon development for us -- after that everyone knew that I was serious about establishing Villanova Law's Catholic identity. In my opinion, a law school cannpot call itself Catholic without being willing to make very difficult decisions such as this one. Without them, it's all empty rhetoric. I wonder if this is a Rubicon for Georgetown Law?

Speaking of empty rhetoric: while I am grateful for Georgetown's decision, and very respectful of its dean's courage, I am very surprised by this decision. The only coherent argument that the complaining student makes is that she never had been given the slightest hint that Georgetown would do anything so "Catholic." As Dineen points out, she does have a point. As far as she knew (and was told), for Georgetown Law being "Catholic" or, more particularly, "Jesuit," meant pursuing a general social justice agenda through clinics, pro bono and internships essentially identical to those at other secular schools. This was, after all, the same law school where a former dean told a Catholic faculty candidate that Georgetown Law  " was not a 'Catholic' law school, but a law school in a Catholic university" (which at least showed a very Catholic capacity for onotological abstraction). Georgetown Law has long contented itself with having a couple of Jesuits on its 100 person plus faculty and supporting a splendid clinical program -- the epitome of what I have long called "Jesuit Lite" legal education: ie, if we are for "social justice" (with no reference to or even awareness of Catholic understanding of that term), teach ethics and jurisprudence (albeit with zero Catholic content), and strive to be "diverse" (like every other law school in the country) than we are in the "Jesuit Tradition," and let's not worry about all that other messy, embarassing Catholic stuff. Most of the other Jesuit law schools are the same. Recently, I gave a paper at another such school on what the preferential option for the poor means for the law (invited by the only faculty member with the slightest interest in mission.) I talked about how our clinic was inspired by St. Thomas of Villanova's dedication to the poor, how our subject areas reflected traditional Catholic pastoral concerns (asylum and migrant farmworkers), and our clinical faculty were engaged with Catholic social teaching. A clinical faculty member from the host school interrupted me to say that they were also doing wonderful things in their clinics (of which I had no doubt), but their inspiration was really "Jesuit," not "Catholic." At least the Jesuits in the audience had the good grace to look embarassed! Readers of this blog will undoubtedly remember John Breen's recent dissection of the empty claims of Jesuit law schools to meaningful engagement with the real Jesuit tradition let alone Catholicism in general. The problem is really systemic, and the persistant tendency to distinguish "Jesuit" from "Catholic", and to strip "Jesuit" of any meaningful content has allowed these schools to avoid serious engagement with their Catholic identity through cheap and deceptive rhetoric.

But I should not use this happy occasion to carp! Let us applaud Hoya Saxona, and hope this means that that Georgetown Law is at least thinking about what its Catholic identity really means.

A quick postscript: my wholesale criticism of Jesuit legal education should not in the least be read as disparaging what individual faculty at Jesuit schools are trying to do in the face of the hostility or indifference of their colleagues: Amy at Fordham, John Garvey and Rob Kalscheur at BC, John Breen at LoyolaCHI, Bill Quigley at LoyolaNO and Scott Wood at LoyolaLA as well as some others. They carry the torch bravely and imaginatively, and I have only gratitude and respect for them.

--Mark