When Villanova reformed its 1L curriculum a few years ago, we introduced a series of 1L electives that includes international law, statutory interpretation, the regulatory state, and criminal procedure. Patrick Brennan and I designed (and co-taught the first time it was offered) a course entitled "Justice and Rights" that we hoped would serve as an introduction to some major themes in moral and political philosophy tailored for law students (and not duplicate what they might get in an upper-level elective in jurisprudence).
In its initial incarnation, we read, in order, chunks of Thomas Hobbes's Leviathan, John Locke's Second Treatise, John Stuart Mill's On Liberty, John Rawls's A Theory of Justice, and Aristotle's Nicomachean Ethics and Politics, along with a series of Supreme Court cases that pose, however imperfectly, a set of issues about, well, justice and rights (Heller v. DC, Grutter v. Bollinger, Lawrence v. Texas, Plyler v. Doe, San Antonio v. Rodriguez, and Kelo v. New London). I know that law students won't need to know, say, the difference between Hobbes's and Locke's social contract theories in order to pass the bar exam, but I do think that reading these texts, thinking about them, and writing a series of papers on the issues they raise is a distinctive way for a Catholic law school to provide a humanistic legal education that can improve students' reading and writing skills while also providing the opportunity to reflect on some larger questions. And, so far, many students have responded with enthusiasm.
I'm wondering what MOJ readers think a good course of this kind would look like. I've thought about reading more Rawls, not so much because I'm a committed Rawlsian but because A Theory of Justice and Political Liberalism have such a significant bearing on the way that justice and rights are understood in contemporary law. Or I know there are rich texts in the tradition that we neglect entirely--Plato's Republic, Augustine's City of God, selections from Aquinas, Bentham's Principles of Morals and Legislation, Kant's Doctrine of Right, etc., along with a whole host of potential contemporary authors. I'd be grateful for any suggestions.
Villanova Law hosted its annual Scarpa Conference (under the direction of our own Patrick Brennan) last Friday, which was an exploration and celebration of the work of John Finnis on the occasion of the publication by Oxford University Press of five volumes of The Collected Essays of John Finnis and a second edition of Natural Law and Natural Rights. In addition to my Villanova colleague Michelle Madden Dempsey, papers were also presented by George Christie (Duke), Father Martin Rhonheimer (Sancta Croce), Fred Lawrence (Boston College), Mark Murphy (Georgetown), Candace Vogler (Chicago), Michael White (Arizona State), and John Keown (Georgetown). John Finnis concluded the day with a keynote address that responded to each of the papers by way of a chapter-by-chapter recital of the topics in Natural Law and Natural Rights. As John Keown noted in his presentation, Finnis's widespread contributions to the field of bioethics and law would alone suffice to secure his reputation. But Finnis also single-handedly rehabilitated natural law in contemporary jurisprudence in Natural Law and Natural Rights and has made important contributions to fundamental moral theology, moral philosophy, political theory, and the interpretation of Thomas Aquinas, and he's now working on a project that will significantly change our understanding of the historical setting of Shakespeare. This is how I concluded my response to Candace Vogler's interesting paper on absolute moral norms:
Writing in 2009 about Elizabeth Anscombe in the context of a review of two books of Anscombe’s collected essays and relevant here to the topic of Professor Vogler’s paper on the relation of theology to moral philosophy, Professor Finnis wrote:
Since the faith has realities, not myth, for its object, and since everything that can be inquired into is what it is by virtue of God’s actuality, one’s inquiries and every other element in one’s intellectual life – whether elements on which faith bears or elements remote from the faith – can be pursued with confidence that they will not contradict faith and if successful will have brought one a little closer to understanding what is really so. That is the free and diligent way in which Anscombe carried out the work that is widely and reasonably judged the twentieth century’s outstanding English Catholic philosophical achievement. (Collected Essays of John Finnis, Volume II: Intention and Identity, "Anscombe on Spirit and Intention")
So also that is the free and diligent way in which John Finnis has carried out his work, which we rightly gather to celebrate today.
Today at Public Discourse, I offer some reflections on the South Carolina Republican presidential forum where I had the privilege of being one of the questioners. I asked each of the candidates a question about the authority of Congress, pursuant to the power delegated to it by Section Five of the Fourteenth Amendment, to protect the unborn by enacting legislation enforcing the Section One due process and equal protection rights of persons. Of course, such legislation would represent a direct challenge to the ruling of the Supreme Court in Roe v. Wade. So my question invited candidates to state a position on the issue of judicial supremacy. In my Public Discourse essay, I note that
[n]othing in the Constitution itself confers upon the Supreme Court supremacy in constitutional interpretation. Even those founders, such as Hamilton, who interpreted the document as implying a power of judicial review (the Constitution does not expressly confer such a power) did not interpret that power as establishing the supremacy of the judicial branch over the others. Nor is judicial supremacy consistent with the structure or logic of the system of government established by the Constitution. It is true that under Article III of the Constitution the Supreme Court is supreme over the “inferior” federal courts, but that does not mean that its usurpations of the powers assigned by the Constitution to other branches of government, when they occur, must be treated by the president and Congress as beyond challenge.
Abraham Lincoln could not have been clearer in his rejection of judicial supremacy or more forceful in his denunciation of it as a mortal threat to republican government—government by and for the people, the type of government for which Lincoln was willing to fight a bloody civil war. The issue presented itself in his era in the context of a decision remarkably like Roe v. Wade. That was the Supreme Court’s ruling in the case of Dred Scott v. Sandford, denying the authority of Congress to restrict slavery in the federal territories and depriving blacks, even free blacks, of the rights of citizenship. Like Roe, Dred Scott was a case of extravagant judicial overreaching. It lacked any basis in the text, logic, or original understanding of the Constitution. It was a gross usurpation of the power of the people acting through their elected representatives in Congress.
In his First Inaugural Address, with the threat of Southern secession and civil war looming, Lincoln went out of his way to confront the Supreme Court on the issue:
[I]f the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased, to be their own rulers, having, to that extent, practically resigned their Government, into the hands of that eminent tribunal.
For anyone interested, here is a link to my essay: http://www.thepublicdiscourse.com/2011/10/4055
Sunday, October 2, 2011
It's clear enough that Maureen Dowd disagrees with several of Justice Scalia's views: abortion, co-ed college dorms, capital punishment, and attendance of the Justices at the Red Mass are among them (though I don't think that Justice Scalia has expressed any public view on the last of these, though I may be wrong). It's not exactly clear to me whether she disagrees with Catholics expressing their views as such, or disagrees with the subjects about which they choose to express themselves, or disagrees with the positions that they stake out, or all three.
Just a quick note on the complex doctrine of cooperation in evil, which I am sure many have discussed here at MOJ over the years, and about which many here will know much more than I.
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