I first came across Mirror of Justice 10 years ago while practicing at a firm in Washington—I was amazed to see that there existed a critical mass of smart, engaged legal scholars in an area called “Catholic legal theory” and followed the blog avidly. My decision to enter the legal academy was shaped partly by the conversation I saw taking place at Mirror of Justice, and, a few years ago, I eventually became a contributor.
Like Rob Vischer, I now have an administrative role that leaves little time for working on Catholic legal theory, though I think a lot about the nature of legal education at a Catholic university. As Rob indicates, Mirror of Justice appeared at a time when there were new law schools (such as his own at St. Thomas) opening with an intentional focus on mission and new conferences and workshops at several schools exploring the distinctive aspects of the identity of Catholic law schools. That period has now passed and there are now enrollment- and employment-outcome pressures facing all law schools—religiously-affiliated or not—that seem, understandably, to crowd out other priorities. That said, I have two brief thoughts about the ongoing salience of the “MOJ Project.”
First, Mirror of Justice was founded amid an era in which Catholic universities generally (and not only in law schools) were engaged in a renewed conversation about their religious identity. As is now, I think, widely recognized, the governance by members of sponsoring religious orders and a strong desire to move out of cultural and intellectual isolation had led Catholic colleges and universities to be somewhat complacent about their mission in the post-Vatican II era. The end of that period and the beginning of a renewed conversation were inaugurated by John Paul II’s Apostolic Constitution Ex Corde Ecclesiae in 1990 (the discussion of which was sometimes sidetracked by the debate over the relation of bishops to theologians) and publication of George Marsden’s The Soul of the American University in 1996. Marsden demonstrated that religious identity could (and did) disappear from universities over the course of the history of American higher education, and it became apparent to many that Catholic universities were heading down the same path previously traveled by Marsden’s case studies in secularization and the marginalization of religious identity.
The challenge, of course, was and still is how to respond to this historical situation. From that era came the creation of mission officers at many institutions, the development of mission-related courses (such as Catholic social thought and law-type courses) and programs (such as Catholic studies departments) at some schools, and discussion of how institutions should take into account their mission when hiring faculty and staff. All of those developments were important and praiseworthy, and Mirror of Justice was a manifestation of the same spirit.
But there has always lurked the danger of a kind of “extrinsicism” in some of these efforts, and I think the next challenge for Catholic institutions—and even blogs—is to find ways of overcoming it. I borrow the term from Michael Buckley, SJ, and his discussion of these matters in his book The Catholic University as Promise and Project (1999). (I served as Michael Buckley’s research assistant while I was in graduate school at Boston College during the composition of the book.) As Buckley puts it, this view “presents a vision of the Catholic university in which the religious and the academic, however interrelating and intersecting, are fundamentally extrinsic to one another. In no way does either bring the other to its own intrinsic or inherent completion” (11). And so in law schools and in legal scholarship, “religion” is added onto “law,” just as finance majors in most Catholic universities have to take (and resent) classes about “religion.”
The great Catholic university—and Catholic law school—of the future will seek ways in its institutional life to achieve the integration of faith and reason, the sacred and the secular, in new and creative ways. As Buckley wrote in an earlier essay that was later adapted for his book:
The fundamental proposition of the Catholic university is that the religious and the academic are intrinsically related. Any movement toward meaning and truth is inchoatively religious. This obviously does not suggest that quantum mechanics or geography is religion or theology; it does mean that the dynamism inherent in all inquiry and knowledge—if not inhibited—is toward ultimacy, toward a completion in which an issue or its resolution finds place in a universe that makes final sense, i.e., in the self-disclosure of God—the truth of the finite. At the same time, the tendencies of faith are inescapably toward the academic. This obviously does not suggest that all serious religion is scholarship; it does mean that the dynamism inherent in faith—if not inhibited—is toward its own understanding, toward its own self-possession in knowledge. In their full development, the religious intrinsically involves the academic, and the academic intrinsically involves the religious—granted that this development is de facto always imperfectly realized at best or even seriously frustrated. "The Catholic University and the Promise Inherent in Its Identity," in Catholic Universities in Church and Society: A Dialogue on Ex corde Ecclesiae, ed. John P. Langan, SJ (Georgetown University Press, 1993), 82.
Second, I am generally sympathetic to reforms in legal education that emphasize business literacy and experiential learning as a way to prepare our graduates for successful careers, as indicated by Villanova Law School’s strategic plan. I think Catholic law schools and the work of this blog might bring two other important pieces to the discussion of legal education, however.
One is an emphasis on student formation and discernment. As Christian Smith and his colleagues documented in Lost in Transition (2011), many young adults are detached from moral, political, and religious commitments that often leaves them without the resources to make sense of their lives and personal and professional choices. Catholic institutions and the tradition they inherit have a well-developed framework for engaging such questions, and I am excited to see how our institutions will find ways of educating the whole person and engaging our students from within that framework.
Finally, the Catholic law school and “Catholic legal theory,” while committed to preparing students for professional success, also appreciate the full context for law and legal institutions. We are educating souls, not merely imparting skills training for budding bureaucrats. And so at a time when humanistic legal education (and courses in areas such as legal history and jurisprudence) is being very much called into doubt, I hope this blog and our institutions can develop arguments for the importance of such an education--not to the detriment of professional skills and a successful career but because we are the bearers of a great tradition that insists on education as the formation of citizens and participation in God's own work.
Here is Fr. Araujo's reflection on MOJ's 10-year anniversary:
Nonus Adveniens (On the Coming Ninth)
I have just about reached my ninth anniversary of participation in this web log dedicated to the development of Catholic legal theory. Our maestro coordinator, Professor Rick Garnett, has asked the contributors to the Mirror of Justice to supply a brief anniversary submission during this month of February. Who am I to say “no”?
As one of the law teachers who struggles with the mantle of the joint enterprise of developing Catholic legal theory, I have seen that some of my past posts have veered from doing precisely this. But by the same token, I realize that in most of what I have said, I have attempted to capture something about the self-evident truths that are a part of our national legal fabric and beyond. As a public law lawyer, I have spent considerable time wrestling with questions that span national interests by looking at the universal common good as it might be served by the rule of law—a law that is made by human beings, but by human beings who think objectively and realize that there are universal principles and truths about the human person, human nature, and human society.
All of this seems to coincide with the natural law thinking that has been crucial to legal thinking for some time. Romans like Cicero and the Stoics along with some of the ancient Greeks seemed to have agreed. So did Aquinas, de Vitoria, and Suàrez. Perhaps even a few of our Founders did, too, although they were also influenced by the strong individualistic notions of the Enlightenment. Then came the world of realism and positivism.
Our project at the Mirror of Justice, I think, has been in large part an antidote to these latter developments that risk rather than promote the common good of which we often speak here as we might also take account of the notion of the general welfare and our posterity of which the Preamble to the Constitution speak.
It is clear that our American, western, and now global cultures are strongly influenced by an individualism and subjectivity that are fortified by what some seem to find attractive, i.e., legal positivism. Given the nature of our joint enterprise, the contributors to the Mirror of Justice have a broad responsibility to meet this challenge. I hope to address more of this subject in the future myself, and I pray that God will give me the strength to do this.
I started blogging at MOJ a month of so before the 2004 election, and so many of my early posts had to do with voting and conscience, a subject that will always continue to be part of our discussions. Although I have been an infrequent MOJ blogger of late, I remain convinced of the importance of the enterprise in which we have been engaged for the last ten years.
In his recent Apostolic Exhortation, Evangelii Gaudium Pope Francis, speaking about the inclusion of the poor in society, said that Jesus’ command to his disciples “You yourselves give them something to eat” (citing Mark) “means working to eliminate the structural causes of poverty and to promote the integral development of the poor, as well as small daily acts of solidarity in meeting the real needs which we encounter. The word ‘solidarity’ is a little worn and at times poorly understood, but it refers to something more than a few sporadic acts of generosity. It presumes the creation of a new mindset which thinks in terms of community and the priority of the life of all over the appropriation of goods by a few.”
The thrust of the Pope’s point is not limited solely to the problem of poverty. He expresses clearly in the document that because Christian conversion “demands reviewing especially those areas and aspects of life related to the social order and the pursuit of the common good,…no one can demand that religion should be relegated to the inner sanctum of personal life, without influence on societal and national life, without concern for the soundness of civil institutions, without a right to offer an opinion on events affecting society.”
Those of us involved in the MOJ project will doubtless continue to disagree about all sorts of issues - whether particular laws and policy positions are consistent with principles of Catholic Social Thought, whether a good Catholic can vote for a particular candidate, and so on. But we all proceed from the premise that we have a duty to help to create “a new mindset which thinks in terms of community and the priority of life of all” and that we cannot make decisions about law and public policy divorced from the teachings of our faith.
My first post, written on February 10, 2004 was titled “Anthropology and the Structures of Injustice.” In that post, I suggested that “A (maybe THE) major structure of injustice in our society is a malformed anthropology, which provides the foundation for many of the other structures of injustice.” I continue to think this.
A Chronicle of Higher Education (1/27/2014) article, “When I Was Young at Yale,” written by an English professor who co-taught a course with Richard Rorty at Virginia, where the objective of the course was “de-divinization,” supports my hypothesis. He writes: “We were out to wipe the highest aspirations of humanity off the blackboard—they were an encumbrance, a burden, a major inconvenience. Courage, compassion, the disinterested quest for ultimate truth: Let’s drop them. They were forms of oppression. They weighed people down.” Although this professor confessed to being “slow,” he finally realized that “If there were no ideals, or no creditable ideals, then the kids who were headed from Skull and Bones to Wall Street and the CIA were absolved, weren’t they? They didn’t have to be honorable; they didn’t have to seek the truth; they didn’t have to do what Auden told us all we had to try: ‘love one another or die.’ No, the kids from Yale [and, I would add, the rest of us] were free.”
I too am slow. I ended my first post with “We cannot force someone to accept our anthropology - our understanding of what it means to be human - but I think (like Rick) that there is good reason to raise the question and also hope (not to be confused with optimism) that this anthropological perspective will resonate with others. More on these two points later ...”
Ten years later, I continue to hope, but I am much less optimistic that this hope will be realized in the near term than I was a decade ago. Ten years ago, in my youthful (I wasn’t even 44 yet) naiveté, I imagined that the new springtime of the Church was just around the corner. I thought that if people understood the beauty of the Catholic Church’s teaching on the nature of the human person (instead of obsessing over and twisting a few aspects of this teaching), they would gravitate toward that worldview in large numbers at least philosophically. My co-edited book (with Teresa Collett), “Recovering Self-Evident Truths: Catholic Perspectives on American Law,” was an attempt to show that the Catholic Church had much to contribute to the discussion about labor law, immigration law, property law, contract law, etc.
My sense today (and maybe I am just an overly pessimistic nearly 54 year old) is that far from gaining traction, a Catholic anthropology is actually losing ground in the public sphere where debate is being shut down in the name of tolerance and diversity. I now expect a long winter before the coming spring.
I am grateful for Blessed John Paul II and Pope Benedict XVI and their sound philosophy and theology (I suspect that the Theology of the Body will take root in the long run) in the decades after Vatican II. Rational argument still needs to be made, and the two of them along with faithful theologians and philosophers, have kept the Church on solid intellectual ground. But, I sense a shifting of the wind, and I am equally grateful for Pope Francis with his emphasis on being a living witness to Christ’s love and mercy. I suspect that love and mercy showered on those who have lost hope will have a greater impact in the long term than any argument the best of us could make. As a result of my shift in emphasis from arguing with others to being present to others, I have become one poor correspondent on MOJ.
Here are some anniversary thoughts from Russ Powell:
A Reflection on Catholic Legal Theory
The role of the Church in law is dynamic. For the early Christian community, law was often a tool of oppression wielded by the state, though it was occasionally used to challenge arbitrary state power by leaders who had access to citizenship and education such as the Apostle Paul. Once states (particularly the Roman Empire) formally endorsed Christianity, making it the official religion, the Church’s approach to law shifted from a posture of critique to one of power and justification. Although states and the contexts in which they governed did not remain static, it is arguable that the Catholic Church generally continued to imagine law as a tool that it could legitimately use to encourage conformity with its teaching. The Reformation and the rise of modern nation states challenged this identification between states and the Catholic Church, gradually shifting the Church’s posture back to one of defense and critique. However, this was not a reversion to the marginalization of the early Church. Instead, it gave the Church the opportunity to consider and comment on the policy implications of its teaching, especially its social teaching, without the power to enforce its doctrine on states. Ideally this gives Church institutions and Catholic scholars freedom, objectivity and moral authority to proffer arguments for the appropriate place of law in fostering the common good. In this project, we rely on authoritative expressions of Church teaching, and we apply a variety of methods rooted in our tradition and the best of contemporary science and social science. If the Mirror of Justice is a fair example of the development of Catholic legal theory, it is obvious that it represents a diversity of views, which are sometimes in opposition. Even so, we rely on the same body of texts and traditions, and we endeavor to engage legal problems in ways that are faithful to our commitments to Christ and the Gospel. We strive to engage each other and the world in a spirit of humility, motivated by love.
What is the law of the People of God? It is the law of love, love for God and love for neighbour according to the new commandment that the Lord left to us. It is a love, however, that is not sterile sentimentality or something vague, but the acknowledgment of God as the one Lord of life and, at the same time, the acceptance of the other as my true brother, overcoming division, rivalry, misunderstanding, selfishness; these two things go together. Oh how much more of the journey do we have to make in order to actually live the new law — the law of the Holy Spirit who acts in us, the law of charity, of love! Looking in newspapers or on television we see so many wars between Christians: how does this happen?[ …] We must ask the Lord to make us correctly understand this law of love. How beautiful it is to love one another as true brothers and sisters. How beautiful! Let’s do something today. (Pope Francis I, 6/12/13)
Here is another Tenth Anniversary reflection, this one from Prof. Lisa Schiltz:
Many of my posts on MOJ have reflected my interest in feminist jurisprudence, in particular the concept of complementarity, and how that concept plays out in both Catholic teachings and legal theory. In Evangelii Gaudium, Pope Francis has now repeated Blessed John Paul II’s challenge to the Church to seriously consider the role of women in the Church, cautioning that issue presents “profound and challenging questions which cannot be lightly evaded.” (¶ 104).
In thinking about the role of MOJ in helping the Church meet this challenge, I find myself persistently puzzled by two particular questions. First, what is it about the format or process of blogging (or at least blogging at MOJ) that seems to come so much more naturally to men than women? This has been frequently discussed by some of us “MOJ chicks”, without any resolution.
Second, more generally, what is it (if anything) that blogging (or at least blogging at MOJ) can do for the Church, as a means of helping the Church address challenging questions such as the role of women, or any other of the topics that we regularly address? I presume the reason most of us blog here is that we think we are somehow helping the Church do some of its thinking with our blog posts. How effectively are we, in fact, doing this?
In thinking about both of these questions, I regularly find myself reflecting on the following passage from Joseph Cardinal Ratzinger’s essay “My Word Shall Not Return to Me Empty!”, in the collection of essays by Ratzinger and Hans Urs von Balthasar, Mary: The Church at the Source (Adrian Walker trans., Ignatius Press 2005) (1980) (at p. 16-17):
In my opinion, the connection between the mystery of Christ and the mystery of Mary . . . is very important in our age of activism, in which the Western mentality has evolved to the extreme. For in today’s intellectual climate, only the masculine principle counts. And that means doing, achieving results, actively planning and producing the world oneself, refusing to wait for anything upon which one would thereby become dependent, relying rather, solely on one’s own abilities. It is, I believe, no coincidence, given our Western, masculine mentality, that we have increasingly separated Christ from his Mother, without grasping that Mary’s motherhood might have some significance for theology and faith. . . . We treat the Church almost like some technological device that we plan and make with enormous cleverness and expenditure of energy. . . .
What we need, then, is to abandon this one-sided, Western activist outlook, lest we degrade the Church to a product of our creation and design. The Church is not a manufactured item; she is, rather, the living seed of God that must be allowed to grown and ripen. This is why the Church needs the Marian mystery; this is why the Church herself is a Marian mystery.
Ten years ago, when I was asked about joining a blog dedicated to Catholic legal theory, I confess that I wasn’t entirely sure what a blog was. And while I had some ideas about Catholic legal theory, even those were a bit murky. I’ve learned a lot about both in the past decade thanks to the merry band of bloggers and readers who have gathered here regularly.
Today I spend a lot more time thinking about Catholic legal education than Catholic legal theory. Ten years ago may seem like it was a high-water mark for law schools’ interest in Catholic legal theory – lots of well-attended conferences, new journals sprouting up, two new Catholic law schools that were intentional about building mission-centered programs, faculty hiring at several schools that suggested a high value on Catholic legal scholarship, etc. This burst of activity has plateaued over the past several years, but I do not think it represents diminished interest in Catholic legal theory as much as a recognition that legal education in general is in a period of profound challenge and change. The pressures that Catholic legal theory faces today in terms of maintaining traction and momentum in the U.S. legal academy are more about the pressures that U.S. legal education faces in general. Three come to mind.
1. It’s all about employment. Law schools have always cared about their graduates’ employment outcomes, but greater transparency and more granular data have now increased pressure to marshal all the assets of the law school in an effort to improve employment prospects. This often affects faculty hiring and the priorities of existing faculty. Teaching and writing in areas where there are jobs have become more of a focus. Hiring the candidate who wants to write on subsidiarity (e.g., me) may not be as attractive in the current environment.
2. Marketing Catholic identity to prospective law school applicants is insufficient, standing alone, to draw students. To be clear, Catholic identity is still a strong draw for some applicants, but they also need to know how that identity enhances their professional preparation.
3. Tighter budgets mean less money for travel, conferences, and journals.
These pressures are not necessarily bad things; they simply require Catholic law schools – and faculty at non-Catholic law schools who teach and write about Catholic legal theory – to be more intentional and creative in showing students (and administrators) why they should care about our shared project.
It will be fascinating to watch how this unfolds over the next ten years. A few very tentative predictions:
1. Faculty scholarship, including scholarship related to Catholic legal theory, will become more student-centered. Teaming up with interested students to work on research, including students in advocacy projects that flow out of research, and articulating the impact of research will become more prevalent. I know that all of this already happens at law schools, but I think the trend will accelerate. (Most) law schools cannot afford to devote significant resources to activities that are not noticed or appreciated by students. It is possible to include students more proactively in the Catholic legal theory project, and we will work on finding new ways to do so over the coming years. (At St. Thomas, our Murphy Institute for Catholic Thought, Law, and Public Policy has been doing a great job on this front.)
2. Catholic legal education will become more international. Catholic identity remains a strong draw in other parts of the world, especially Latin America.
3. There will be much more focus on whole-person formation. With the rise of MOOCs and more “accessible” methods of legal education, there will be a powerful story to tell about the distinction between formation and information transfer. Catholic legal education needs to lead on formation.
While there will be changes, the core of the Catholic legal theory project will, I hope, remain centered on the same question – what is the nature of the human person, and what does that mean for law? It is a conversation that we are privileged to engage, and I appreciate Rick’s stewardship of this unique venue over the past decade.
Ten years ago this week -- in early February, 2004 -- the "Mirror of Justice" blog went live, with this first "welcome" post:
Welcome to Mirror of Justice, a group blog created by a group of Catholic law professors interested in discovering how our Catholic perspective can inform our understanding of the law. Indeed, we ask whether the great wealth of the Catholic intellectual and moral tradition offers a basis for creating a distinctive Catholic legal theory- one distinct from both secular and other religious legal theories. Can Catholic moral theology, Catholic Social Thought and the Catholic natural law tradition offer insights that are both critical and constructive, and which can contribute to the dialogue within both the legal academy and the broader polity? In particular, we ask whether the profoundly counter-cultural elements in Catholicism offer a basis for rethinking the nature of law in our society. The phrase "Mirror of Justice" is one of the traditional appellations of Our Lady, and thus a fitting inspiration for this effort.
A few things about this blog and us:
1. The members of this blog group represent a broad spectrum of Catholic opinion, ranging from the "conservative" to the "liberal", to the extent that those terms make sense in the Catholic context. Some are politically conservative or libertarian, others are on the left politically. Some are highly orthodox on religious matters, some are in a more questioning relationship with the Magisterium on some issues, and with a broad view of the legitimate range of dissent within the Church. Some of us are "Commonweal Catholics"; others read and publish in First Things or Crisis. We are likely to disagree with each other as often as we agree. For more info about us, see the bios linked in the sidebar.
2. We all believe that faith-based discourse is entirely legitimate in the academy and in the public square, and that religious values need not be bracketed in academic or public conversation. We may differ on how such values should be expressed or considered in those conversations or in public decisionmaking.
3. This blog will not focus primarily on the classic constitutional questions of Church and State, although some of our members are interested in those questions and may post on them from time to time. We are more interested in tackiling the larger jurisprudential questions and in discussing how Catholic thought and belief should influence the way we think about corporate law, products liability or capital punishment or any other problem in or area of the law.
4, We are resolutely ecumenical about this blog. We do not want to converse only among ourselves or with other Catholics. We are eager to hear from those of other faith traditions or with no religious beliefs at all. We will post responses (at our editorial discretion, of course.) See "Contact Us" in the sidebar.
5. While this blog will be highly focused on our main topic, we may occasionally blog on other legal/theoretical matters, or on non-legal developments in Catholicism (or on baseball, the other church to which I belong.)
6. We will be linking to relevant papers by the bloggers in the sidebar. Comments welcome!
In the coming days, the MOJ bloggers will be putting up "anniversary" reflections, so stay tuned. And, in the meantime, thanks to all those -- we have had more than 3 million visits over the years -- who have made MOJ a part of their surfing routines.
Today at Public Discourse, my brilliant co-author and former student Sherif Girgis begins an important three part series of articles on the need for philosophical reflection and analysis in thinking and arguing about moral questions, including morally-charged questions of law and public policy.
Against the view advanced by a number of prominent contemporary Christian writers, Sherif argues that we cannot get along simply by relying on scriptural revelation or the tradition of the Church. As the headnote to today's article says "our natural moral knowledge in some ways precedes revelation and helps us to understand it." It should go without saying that in no way is this to claim that revelation is irrelevant or redundant. It is to argue, rather, that faith and reason really are, as Pope John Paul II famously said, "like two wings on which the human spirit ascends to contemplation of truth."
Sherif is a summa cum laude graduate of Princeton, where he won prizes for the best senior thesis in philosophy and the best senior thesis in ethics, as well as the International Dante Prize. He earned a graduate degree at Oxford University, where he was a Rhodes Scholar, and is currently completing a J.D. at Yale Law School, where he is an editor of the Yale Law Journal, and a Ph.D. in philosophy at Princeton.
The Oliver Wendell Holmes Devise lectures were delivered in 1960 by Francis Biddle. Published the next year in a slender volume Justice Holmes, Natural Law, and the Supreme Court, the lectures provide Biddle's defense of Holmes from "the assaults of certain Roman Catholic priests teaching in Jesuit law schools." A fair amount of the argumentative work done in the book is done by a simplistic reductive antithesis between "two points of view about the law and the proper approach to its application that are fundamentally opposed, and touch the roots of its life." These are the abstract moralism of Catholic natural law thinkers and the pragmatic empiricism of Justice Holmes. Biddle gets both of these schools of thought wrong, by simplifying natural law thinking and by denying some of the least defensible aspects of Justice Holmes's thought.
The impressions of Holmes that Biddle wishes to counter are that "Holmes was a cynic, who thought of law as nothing but the application of force; that he believed that morals, basically concerned, were but the expression of individual taste, and had nothing to do with law; and that he held that the proper function of a judge was to carry out what the majority had already decided, whether it was right or wrong." But these impressions are not far off the mark, if at all, as Albert Altschuler set forth in some detail in Law Without Values: The Life, Work, and Legacy of Justice Holmes.
Those studying Holmes are better served by Altshculer than by Biddle. But those interested in understanding a certain strain of anti-Catholic-intellectualism should check out Biddle. Here's a taste:
[Holmes] wished Malthus' teaching in its substance were more taken to heart. G.K. Chesterton, in his Victorian Age in Literature, probably because he was a Catholic, had to be contemptuous of Malthus; and Holmes wrote to his young friend Harold Laski that he was reminded of what Lord Melbourne had said--it had tickled him: "No one has more respect for the Christian religion than I have; but really, when it comes to intruding into private life---"
All good society rested on the death of men or on the prevention of the lives of a good many. So that when the Chief Justice assigned him the task of writing an opinion upholding the constitutionality of a Virginia law for sterilizing imbeciles he felt that he was getting near the first principle of real reform--although of course he didn't mean that the surgeon's knife was the ultimate symbol. . . . He was amused at some of the rhetorical changes in his opinion suggested by his associates, and purposely used "short and rather brutal words for antithesis," that made them mad. In most cases the difficulty was rather with the writing than with the thinking. To put the case well and from time to time to hint at a vista was the job. . . .
