The Catholic University of America's Columbus School of Law has a very helpful "annotated bibliography" of materials relating to the "Catholic Dimensions of Legal Study," here.
Monday, March 5, 2012
Catholic Legal Bibliography
Sunday, March 4, 2012
Bowman and Winters on the mandate
Matt Bowman, at Catholic Vote, and Michael Sean Winters, at Distinctly Catholic, are having a conversation that will likely be of interest to many MOJ readers about the mandate, the promised so-called "accommodation," religious freedom, politics, and lots of other good stuff. Check it out.
Mark Rienzi's "Mirror of Justice" lecture
It's not just the title of the lecture that's good. Check out CUA law professor Mark Rienzi's lecture (video here), "Religious Liberty, Free Speech, and the Fight for Life."
Concerns about Conscience?
Nathaniel Peters asks, at First Things, "Should Christians Be Wary of Conscience Talk?" (Others have suggested that, for example, the deployment of "conscience talk" by the Bishops, in their efforts to resist the unjust HHS contraception-coverage mandate, puts them in a position of sounding more "Protestant" than "Catholic.") Worth a read.
Bradley on "Retribution and Overcriminalization"
My friend and colleague, Gerry Bradley, has a new paper up, called "Retribution and Overcriminalization," at the Heritage Foundation's site. Here is the abstract:
From the ever-expanding number of federal criminal laws to prison sentences that are too numerous or too long, there are many promising bases for criticizing overcriminalization. One such basis, however, has yet to be fully considered: the fact that too many criminal offenses today are malum prohibitumoffenses—that is, they criminalize conduct that is morally innocuous—and do not contain an adequate mens rea (criminal-intent) element. In order to limit the growth of laws criminalizing morally innocuous conduct—a development that, in turn, would curb overcriminalization—the U.S. legal community would be well-served to explore the concept of retribution and the manner in which it provides an account of how punishing those convicted of criminal offenses is morally justified. Punishment without a firm basis in retribution is unjust and therefore should be avoided.
Bradley makes points, I think, that are particularly important for Catholics to engage. Too often, "retribution" is rejected, or pushed to the side, by Catholics in discussions of criminal justice, perhaps because it seems -- if not correctly understood -- mean, harsh, unforgiving, etc., etc. In fact, though, retribution is central to a Christian understanding of the nature of, justifications for, and limits to punishment.
Shinar & Su on Analogies Between Foreign and Religious Law
Adam Shinar and Anna Su, both SJD students at Havard Law School, have written a provocative paper, Religious Law as Foreign Law in Constitutional Interpretation. Unfortunately only the abstract is available at present, but those wishing to see the paper in full should contact the authors. The abstract is below, followed by some little thoughts about the piece.
This article challenges the conventional understanding of the separation of church and state by arguing that there is no analytical or constitutional problem with using religious law for the purpose of constitutional interpretation. We situate our arguments within the context of the broader debate on the use of foreign law in constitutional interpretation, and the more recent controversy surrounding the proposed bans on the use of religious law in U.S. state courts. By examining the arguments for and against the use of foreign law, we show how they equally apply to the use of religious law. More importantly, we conclude that differences between foreign law and religious law are, at best, differences of degree rather than kind, and thus do not militate against the use of religious law in constitutional interpretation. The article demonstrates that religious law can be used, and in fact, has already been used by the Supreme Court for four limited purposes, none of which, we argue, offends the principles underlying the Establishment Clause.
The paper begins by considering several criticisms that are made of the use of foreign law in constitutional adjudication — relevance, selectivity and accuracy, and political legitimacy – and it argues that each of these criticisms is equally applicable conceptually to religious law. The paper then addresses each of these criticisms as applied to foreign/religious law; it takes a quite strong view that each of the criticisms misfires.
The most interesting and effective part of the paper (for me) deals with the possible Establishment Clause distinction between reliance on foreign law and reliance on religious law. The authors write:
[N]otwithstanding the recent shift from the strict separationist view that was the logical byproduct of the Jeffersonian wall to the accomodationist view that started with the move to the endorsement theory of the Clause, it did not stop the often obscured fact that the Supreme Court has regularly referred to religious laws in its decisions. Thus, the Court could cite both the New Testament and Mosaic Law in interpreting the Treason Clause, the Sixth Amendment, the Fourth Amendment,the Due Process Clause,and also for prescribing guidelines for criminal sentencing. In the controversial case of Miranda v. Arizona,the Court traced the roots of the privilege against self-incrimination, and cited the teaching of Maimonides, a 13th century rabbi and one of the greatest exponents of Jewish law, tounderscore its historical importance.
The authors then list four possible uses to which religious law might be put in a judicial opinion — to show historical genesis, as interpretive reinforcement, for evidentiary purposes, and as persuasive authority. They claim that none of these uses – even the last — is problematic under the Establishment Clause.
Friday, March 2, 2012
The Catholic Church's Mediating Role in Cuba
Here's a very interesting piece about the relations between Cuba and the Catholic Church. It highlights the mediating role that the Church has taken with the Castro regime, and how taking "the long view" seems to have been both shrewd and effective in various political and cultural ways. A bit:
When Pope Benedict XVI visits Cuba next month, he will once again reinforce a strategy that the Vatican has allowed the local Catholic Church there to pursue for more than three decades: diligently avoid any political confrontation with the Castro regime, collaborate with Havana to combat the U.S.-led embargo, and support the Cuban government's incremental economic reforms. In exchange, the Church has been able to maintain a certain amount of autonomy on the island, allowing it to rebuild its presence and position for the possible post-Castro economic boom times to come.
It is a controversial balance. Cubans in the exile community vigorously criticize the Church because they think Church leadership on the island should challenge the dictatorship. But the Vatican takes the long view. Rather than overtly push for change, the Church has come to pursue a strategy of "reconciliation." It has inserted itself as mediator between the regime and its most daring opponents, both those imprisoned and those out in the streets. The Church is present and persistent, but it is nonpartisan. The attitude harkens back to the ostpolitik it practiced during the Cold War -- in most communist countries, especially in those where Catholics were a minority, clergy hunkered down, ministered to the faithful, and survived. Today, in countries ranging from Albania and Montenegro to Romania and Ukraine, Catholic communities are thriving.
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