Catholic Jurisprudence: The Good, the Bad, and the Future

This spring, I taught a seminar in Catholic jurisprudence.  The main text was Recovering Self-Evident Truths:  Catholic Perspectives on American Law.  The final assignment required students to write a reflection paper on the class.   One student - a top student at OU and a self-described agnostic - wrote the following reflection, which shows the importance of our project - especially the questions that we raise.  Although his criticisms fall directly on me as book editor and symposium organizer, they provide food for thought for all of us as we continue this work of developing Catholic legal theory today.

Here is a tag paragraph.  You can read the full text below (Tom Berg get a "shout out" half way through).

In my opinion, Catholic jurisprudence stands uniquely poised to gain widespread support over the next several years.  At a time in our country’s history when our legal/political culture is characterized by increasing polarization and extreme viewpoints, Catholic theory offers a voice of reason that even non-Catholics can appreciate.  The trick, of course, is getting people to listen.

 

            When I was enrolling for classes last semester, I knew that I wanted to take a two-hour seminar course.  With the rest of my schedule in place, I had the choice of Catholic Jurisprudence or Products Liability.  Products liability is one of my favorite legal subjects, so why did I choose the Catholic jurisprudence seminar?  I am, as you know, not Catholic.  Indeed, I am the only admitted agnostic in the class.  Thus, I had several reservations: Would I understand the material?  Would I find anything convincing?  Would I be disinterested or even hostile?

            It is precisely because of these questions that I chose to take the course.  I wanted to deviate from traditional law school classes and expose myself to something completely new—to get out of my “comfort zone,” so to speak.  I wanted to think, but, for the first time in the last three years, not only “like a lawyer.”  I also wanted to explore the “law,” that abstract entity to which I will be devoting a significant portion of the rest of my life, on a deeper level.  I hoped that by taking a course on Catholic jurisprudence, I would force myself to learn something new and thereby become more “complete” as a lawyer and as a person.

            So, were my expectations met, and did I get what I wanted out of the course?  In short, yes and no.  On the one hand, I have thought about things that have not really been on my radar screen since the beginning of law school.  I have also learned to ask questions of fundamental importance regarding the foundations of our legal system and the values reflected in our laws.  On the other hand, I still do not really know what “Catholic jurisprudence” is.  Though Recovering Self-Evident Truths is fairly explicit with regard to Catholic social thought and moral anthropology—important foundations for Catholic legal theory—the book feels incomplete with respect to articulating an actual legal theory and the practical ramifications of such a theory.  In the remainder of this paper, I will discuss what was effective about the course, its shortcomings, and some suggestions regarding future developments for the seminar and Catholic legal theory in general.

A.  The Good

            Upon reading the first couple of chapters of Recovering Self-Evident Truths, I quickly realized that I was not in a normal law school class.  The readings took me back to my undergraduate philosophy days.  I have to admit, I initially responded with skepticism.  Although I found the material interesting, I questioned why we would be reading any of this stuff in a law school class.  How was this in any way relevant to the law or jurisprudence?

            It was not long before I discovered that law school itself was partly responsible for my inability to fully appreciate the relevance of the material.  In just a few short years, I had gone from thinking like a “normal person” to thinking like a lawyer.  Because of my experiences in law school, I came to this class looking for bright-line rules and answers, not broad moral, theological, and anthropological principles.  My approach to the law was threefold: (1) learn the rule, (2) learn the policy justifications behind the rule, and (3) apply the rule to different fact scenarios.  I never really thought much about the foundations for principles that lawyers uncritically accept.  For instance, if someone had asked me why a criminal defendant is entitled to the assistance of counsel, I would have immediately invoked some talismanic phrase such as “due process” or “fundamental fairness.”  But I would not have asked where these ideas came from, why we should value them, or how answering the first two questions might help us interpret and apply the concepts.  My legal education had not trained me to ask these kinds of questions, perhaps because they have little utility in terms of the bar exam.

            My eye-opening moment—that is, the point at which I realized why this seminar is structured the way it is and why the book begins the way it does—occurred the first time we discussed the idea that our rights are destined to be eroded if we cannot give real reasons for protecting them.  For some reason, framing the issue that way radically altered my view of the importance of this course.  It made me realize that legal “rights” not grounded in some sort of objective truth are no more secure than a house built on a shaky foundation.  If mere subjective preferences are the only reason we protect criminal defendants, then how can we guarantee that their rights will always be protected?  Indeed, how can we even forcefully argue that those rights should always be protected?  Why should we not simply dispense with those rights when we determine that it would be more convenient for society to avoid spending time and resources for the benefit criminal defendants?

            Catholic jurisprudence begins with the premise that we must confront the tough, foundational questions before we can have a meaningful conversation about the law.  Without a proper understanding of the nature of the human person, it is impossible determine what the purpose of the law should be and how the law should resolve the conflicts that inevitably arise when the exercise of one person’s perceived rights interferes with another person’s perceived rights.  Although Recovering Self-Evident Truths begins to answer some of the questions about the nature of the human person by providing insight into Catholic moral anthropology—which basically posits that human dignity derives from the fact that human beings were created in the image of God—these answers were not the most valuable aspect of the seminar for me.  Rather, the most important thing that I took away from the course was the fact that I need to ask the questions in the first place.

This realization has already given me a deeper, richer appreciation of the law and its relationship to those whom it governs.  But it has also made the law more intimidating in some ways.  I can no longer look at the law as a convenient set of principles that can be mechanically applied in different situations without any consideration of the foundations of those principles.  Instead, I know that I will spend the rest of my legal career wrestling with the difficult questions that we only began to touch on in this class.  For that reason, I may look back years from now and say that this was the best class that I took in law school.  While I will forget the majority of what I learned in my substantive law courses after the bar exam, I doubt that I will ever stop trying to develop my views on the nature of the human person and questioning whether the law comports with those views.

Another (somewhat related) high point of the seminar was our focus on the relationship between the private self and the “public conversation.”  Catholic jurisprudence directly challenges the idea that people should have to leave their religious views behind when they participate in discussions of law and public policy.  A public conversation in which people are forced to divorce themselves from their most deeply held beliefs is hollow.  I realize that now, but before we delved into this idea—which we labeled “empty pluralism”—I would have referred to the absence of religion in the public sphere as “neutral.”

The Catholic approach to the public conversation issue is compelling and should find favor with many non-Catholics.  Essentially, Catholics steer a reasonable middle course between the extreme secularists who would exclude all private religious beliefs from the public conversation and the extreme fundamentalists who would use the law to impose their private religious beliefs on everyone else.  The Catholic view, at least as I understand it, is that religion must be a genuine part of the public conversation, but that religious viewpoints should not imposed on the public from the top down.

The Ten Commandments symposium that we held at the law school in February provides a wonderful example of how this plays out in the real world.  On one end of the spectrum was Peter Irons, who would exclude virtually all religious displays from the public sphere for fear that any public acknowledgment of religion constitutes a government endorsement.  On the other end were the fundamentalists, who would place religious displays on public property for the purpose of signaling the government’s endorsement and sending a message of disfavor to nonadherents.  But in the middle was Thomas Berg, who took a thoughtful, rational approach to the issue and won widespread praise for his “reasonableness.”  I suspect that Professor Berg’s lecture typifies the Catholic approach to difficult issues involving the intersection of public life and private beliefs.  If so, I am strongly in favor of “reorienting the public conversation”—a theme that we discussed at length over the course of the seminar

B.  The Bad

            Perhaps calling this section “the bad,” is a bit too strong.  I do not think that there was anything “bad” about this seminar or Catholic jurisprudence in general.  I do, however, feel that there was one overarching weakness with the course and the book.  Specifically, we spent a great deal of time discussing the foundations and premises for Catholic legal theory, but I still do not have a good sense of what, exactly, Catholic legal theory is or how it applies in concrete situations.  Perhaps this is because Catholic jurisprudence is still getting off the ground and remains largely undeveloped, or perhaps space limitations in the book and time limitations prevented us from focusing on these issues.  Whatever the reason, because the purpose of this final reflection paper is to provide honest feedback about the seminar, I would be remiss if I did not briefly discuss my only real criticism of the course.

When we got to the substantive law chapters in the second part of Recovering Self-Evident Truths, I expected to discover how principles of Catholic jurisprudence would resolve current legal issues or suggest ways the law should be changed.  Instead, it seemed like most of the authors reiterated the foundational concepts discussed in earlier chapters of the book and raised questions about different areas of the law without ever taking the next step and applying Catholic legal theory to actually tackle those questions.  To the extent that authors did go beyond merely raising questions, they generally spoke in broad terms without taking well-defined and strong positions on specific legal issues.  I found this quite frustrating in light of the power and definitiveness of the first half of the book.

This is not to say that the substantive law chapters were uninteresting or unimportant.  I was just disappointed at how “academic” they were.  While I have a tremendous appreciation for theory and discussions of the abstract, I feel like an important element of concreteness was missing from the course and the book—and perhaps from Catholic jurisprudence in general.

C.  The Future

            In my opinion, Catholic jurisprudence stands uniquely poised to gain widespread support over the next several years.  At a time in our country’s history when our legal/political culture is characterized by increasing polarization and extreme viewpoints, Catholic theory offers a voice of reason that even non-Catholics can appreciate.  The trick, of course, is getting people to listen.

            Recovering Self-Evident Truths demonstrates that Catholic legal theory rests on a solid, objective foundation.  Therefore, Catholic jurisprudence is off to a promising start and has tremendous potential.  But before this project can rise to prominence, Catholic legal scholars will have to work together to develop and refine the movement.  The virtue of any strong legal theory is that it can be applied to concrete situations.  Take, for example, the law and economics school.  Judge Richard Posner’s opinions in every area of the law demonstrate how economic analysis can be applied in particular scenarios to reach a result.  While we can debate the merits of law and economics theory, we cannot debate that it has become a firmly established jurisprudential approach with broad support.  In order for Catholic jurisprudence to have this kind of influence in the legal community, it will need to provide a more defined framework for addressing legal issues.  It will need to come down from the ivory tower of academia and offer practical solutions to real legal problems.

Because I have neither the wisdom nor the vision to develop a long-term success strategy for Catholic legal theory, I will close with a few suggestions for the seminar.  First, never change the way class is conducted.  It was wonderful to hear so many different viewpoints without anyone ever being ridiculed or disparaged for their opinions.  The discussion was more open and honest than in most classes.  Second, I really feel that Recovering Self-Evident Truths needs a chapter on constitutional law.  I know that the publisher does not want the book to be any longer, but surely one of the chapters could be replaced with a constitutional law chapter.  That area of law seems too important not to be discussed, especially considering that a majority of the current Supreme Court Justices are Catholics.  Finally, you might consider adding some supplemental materials that touch on the substantive law areas in more detail.  I can envision a book (or perhaps a packet that you would compile) in which Catholic scholars with differing views on important legal issues explain how principles of Catholic jurisprudence lead to their resolutions of the issues.  This would not only help address the concreteness problem that I discussed above, but would also help students understand Catholic legal theory better by highlighting areas of disagreement and the reasons for the disagreement.  Of course, this would require discussing fewer areas of substantive law and assigning less reading from Recovering Self-Evident Truths, but I think that the tradeoff would be worth it.

I sincerely enjoyed this class and would definitely recommend it over every other seminar that I have taken.  As I noted above, the most valuable aspect of the course for me was the fact that it drew my attention to issues that I had been overlooking since I started law school.  The seminar represented only the beginning of my journey to resolve those issues, but if I had not taken it, I might not have even known what questions to ask.