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.

Tuesday, March 5, 2013

More articles for thoughtful reflection

The more thoughtful reflection about "where we are and whither we are tending," the better.

http://www.campusreform.org/blog/?ID=4646

http://www.vexnews.com/2013/03/big-love-greensparty-polyamorists-push-for-equality-in-marriage-act/

"Poll Shows Disconnect Between U.S. Catholics and Church"

This is an informative news report--the occasion for thoughtful reflection.  Here

another symposium on Pope John Paul II and the Law

Rick's recent posts remind me of a a conference held in the fall of 2006 at Ave Maria School of Law on "Pope John Paul II and the Law." The Ave Maria Law Review later published the papers by (in order of appearance) George Weigel, Father Robert Araujo SJ, Father Kevin Flannery SJ, Jane Adolphe, Ed Peters, Gerry Bradley, Richard Myers, James Eyster, and Howard Bromberg. For links to the articles, see  here and here  

Richard M.

 

"The Journey Home"

My friend and former student, Conor Dugan, has a nice essay at Front Porch Republic, on his recent move back to East Grand Rapids from Washington, D.C.  I'd suggest sharing it with all the law students whom you know . . .

The Jurisprudential Legacy of John Paul II

Following up on my recent post ("John Paul II and the LAw:  A First Try"), a reader helpfully called my attention to this symposium issue, published a few years ago by the Journal of Catholic Legal Studies (out of St. John's University), dedicated to the "Jurisprudential Legacy of John Paul II."   It contains loads of good stuff, including contributions from five (!!) different MOJ contributors.

Monday, March 4, 2013

Reform—legal and ecclesiastical

 

Since Benedict XVI announced his vacation of the Petrine Ministry, many commentators have been voicing numerous views about the “need” to reform the Church. While I am sure that many of the motivations for these sentiments have been pure, I wonder if there is clarity about what the speakers really mean when the raise the issue of “reform”. I will address the subject of ecclesiastical reform in a moment after I first offer a comment about legal reform and what makes it different from ecclesiastical reform.

Most contributors and readers of the Mirror of Justice will acknowledge that the law is often the subject of reform. In some instances this reform is the product of desuetude of existing laws because the subject matter addressed by the law no longer exists. As the law is out of date, it is in need of change. So the law is reformed to reflect this. In other circumstances, reform is necessitated because the law must take account of new things—e.g., technological development—that did not exist when the norms addressing the general subject matter were first promulgated. This second circumstance is evident when property rights are discussed in the context of technology and intellectual property. In a third category, the claim for reform comes from elements of society who want to mold society in their image and argue that the law is an engine for social change. An illustration of this would be the move for the law to recognize same-sex marriage. In this context, we see the human intellect being challenged by a strong human will; the will or desire demands that the intellect conform to its yearning. A fourth category illustrating another kind of legal reform is the situation in which the development of norms and their reform reflect a testing of whether the intellectual processes of the original promulgation sufficiently took stock of the intelligible reality necessitating the promulgation of norms in the first place. In this fourth circumstance, the questions dealing with the proposed reform often focus on whether the intellectual process understood well the needs for which the norms were being developed in the first place and whether there is a need to reconsider the justifications, the objectives, or both for the law now.

These circumstances address some of the validations offered for the reform of the law. But what about the Church?

I have been looking over many of the recent claims made by pundits who are asserting that now is the time to “reform” the Church given the papal conclave that is about to begin and given the qualities that are deemed by some as essential for the new pope. I find that while the word “reform” is often employed by these analysts, I doubt that the speakers mean the same thing. For example, I can see that some advocates for “reform” of the Church are interested in changing fundamental teachings of the Church, particularly in the realm of human sexuality. Related to this claim for reform but of a more general nature is the voice that argues that there is a pressing need for “reform” because the Church is less interested today in confessing sins than she is in liberating consciences, if I may borrow from the title of one recent book on the subject. Consequently, the Church’s teachings must reflect this shift. Still, another group sees Church “reform” as mandating dramatic changes to the Petrine Ministry, the office of bishops, and the office of the priesthood. In addition, there are “reformers” who argue that the “institutional Church” must acknowledge the equality of the magisterial office of theologians with the teaching authority of bishops.

In looking over this list of reasons that are used to validate the call for ecclesiastical reform, I realize that each of these categories is not hermetically sealed from the others; in short, different “reformers” may well share some or all of these arguments for reform. However, these “reformers” tend to have one thing in common: they want to change the status of offices and/or amend Church teachings. None of them really acknowledge or discuss the reform of the human person as the one means of reforming the Church, and I think this is essential to any sincere and holy desire for “reform” of the Church. Why do I offer such an argument?

My explanation begins with the reason why Christ came into the world in the first place and founded the Church on the rock, Peter: to save us from our sins. In the world of the present age, we often hear phrases like “social sin” and “the evils of institutions” being identified as the sources of the problems which the world and its people face. This is wrong, because it is the sins of persons and the evils which persons introduce into the institutions they establish that are at the source of the grave difficulties which the Church and the world face. Until this element of intelligible reality is acknowledged as the essential source of any credible claim for reform of the Church, the clarion for transformation will be flawed. So I end today’s posting with a call for prayers that will be of assistance for authentic reform:

The first prayer is for the cardinals who will elect the new pope: may they put aside whatever individual flaws they have—and we all have them—so that they might elect a holy, humble, and wise man who understands well the nature of the Church and the great demands of the Petrine Ministry.

Second, let us pray for the many places in the world where the Church suffers persecution and other threats. In this latter regard of threats, we should pray for the Church in the United States.

Finally, let us pray for our own reform as members of the People of God that we will heed Christ’s teachings that lead us away from sin and strive for the path of virtue and holiness. Surely this last petition will be heard by God who will strengthen us in this holy desire. And with this, true reform of the Church will follow.

 

RJA sj

 

Roll Tide!

Yes, I said it . . . Roll Tide!  Alabama just joined the ranks of states that have embraced choice-based education reform with an exciting new tax-credit program.  Financial assistance for kids attending Catholic school in Alabama . . . I think of this as Fr. Coyle's revenge against Hugo Black!

Me at the Anti-Defamation League's Brodsky Conference

Tomorrow evening, I will be on a panel hosted here in Manhattan by the Anti-Defamation League, as part of its annual Edward Brodsky Legal Conference.  The panel will be moderated by Noah Feldman (Harvard); my co-panelists are David Barkey (ADL), John Malcolm (Heritage Foundation), and Louise Melling (ACLU).

The subject of the panel is “The Boundaries of Religious Freedom: Mandates, Choices, and Liberties,” sort of in the MOJ wheelhouse.  Here’s some more information.  If you have time to come, please say hello.

Sunday, March 3, 2013

Natural Law as an "uncompromising demon breathing down the neck"

A longtime MOJ reader wrote, regarding my recent post which took note of David Hart's critique of the "new" natural law, to recommend Leszek Kolakowski's 2001 essay "On Natural Law" (included in the recently released collection of essays entitled Is
God Happy?
), which the reader said "provides a more realistic and useful understanding
of natural law."  And, he passed along this excerpt:

"…Moral intuition is also a kind
of experience, different from sense perception – and neither of them
infallible.

 

Our belief in natural law is not
impaired by the fact that the results of this intuition are not necessarily
identical in everyone’s mind, always and everywhere, nor by the fact that
centuries were needed before people recognized the good and evil of their
various actions and institutions – before they admitted, for example, that
torture is evil and equality before the law good.  This has also been the
case with many discoveries in empirical science: it took centuries before
people realized that their ordinary intuitions were wrong: that the sun does
not revolve around the earth, or that a force is not necessary to cause
movement, or that events are never absolutely simultaneous.  All these
erroneous beliefs were natural and understandable.  So why should we not
accept that the principles and norms of natural law reveal themselves to us
gradually: that we must go through a process of growth before we understand
certain moral truths and laws and recognize them as such?  (Although it
should be said that since antiquity there have been people who preached those
principles and norms with full conviction – without, however, gaining universal
approval.)

 

There is no reason to accept the
nihilistic doctrine that because various contradictory norms have been accepted
and applied at various times and in various places, they are all, in terms of
Reason, equally justified, which is to say equally groundless.  While
belief in natural law does not – I repeat – require belief in the existence of
God as a necessary premise, it does require the belief in something that
one might call the moral (in addition to the physical) constitution of Being –
a constitution that converges with the rule of Reason in the universe. 
All the evils of the human world, its endless stupidity and suffering, cannot
impair our belief in natural law in this sense.  Two other realms of
intuition – perception and mathematics – also require suppositions that cannot
be proved but are indispensable for the knowledge we acquire by these
intuitions.  Our life as rational creatures occurs in a realm that is
constructed with the aid of various non-empirical but fundamental courts of
appeal, among them truth and goodness.  Nor need our belief in natural law
be impaired by the fact that it is not universally observed.  This fact
was well known to Seneca and Cicero, to Gratian and Suarez, to Grotius and
Kant, but it did not weaken their conviction that the rules of natural law are
valid, no matter how often they are violated.

 

Natural law does not, of course, allow
us to infer from it the details of any constitution or civil or penal
code.  It does not allow us to infer, for instance, whether or not capital
punishment or voluntary euthanasia is permissible, whether proportional or a
majority voting system is better, whether or not monarchy can be a good thing,
whether property rights should have priority over other rights in case of
conflict, whether censorship can be recommended on moral grounds, and so
on.  Nevertheless, natural law erects barriers that limit positive
legislation and do not allow it to legalize attempts to infringe the
indestructible dignity that is proper to every human being.  Natural law
is built around human dignity.  Thus it invalidates legislation that, for
instance, admits slavery, torture, political censorship, inequality before the
law, compulsory religious worship or the prohibition of worship, or the duty to
inform the authorities about the non-conformity of people’s political
views.  Within these limits various constitutions and various codes are
possible; natural law does not dictate their details.

 

    The barriers mentioned above are usually
    accepted today in the legislation of civilized countries, but we must keep in
    mind that they are relatively recent; that they are not recognized everywhere;
    and that in many places where they are present in constitutions they remain
    mere words on paper.  Natural law should be like an uncompromising demon
    breathing down the neck of all the legislators in the world."

Kahn on martyrdom's threat to the state

From Paul Kahn's "Putting Liberalism in Its Place" (link): 

The Western state actually exists under the very real
threat of Christian martyrdom:  a threat
to expose the state and its claim to power as nothing at all.  In the end, sacrifice is always stronger than
murder.  The martyr wields a power to
defeat his murderer, which cannot be answered on the field of battle.