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.

Friday, June 17, 2016

Percy on "Man as a wayfarer", "A Canticle for Leibowitz", anthropology . . . and Justice Kennedy?

By Rick Garnett

From "Diagnosing the Modern Malaise" (1985):

Christendom began to crumble, perhaps most noticeably under the onslaught of a Christian, Soren Kierkegaard, in the last century.  Again I am not telling you anything new when I suggest that the Christian notion of man as a wayfarer in search of his salvation no longer informs Western culture.  In its place, what most of us seem to be seeking are such familiar goals as maturity, creativity, autonomy, rewarding interpersonal relations, and so forth.

It's all anthropology . . . Or, as Percy says in "Rediscovering 'A Canticle for Leibowitz'" (1971):

[T]he mystery has to do with conflicting anthropologies, that is, views of man, the way man is.  Everyone has an anthropology.  There is no not having one.  If a man says that he does not, all he is saying is that his anthropology is implicit, a set of assumptions which he has not thought to call into question. . . .  One still hears, and no one makes much objection to it, that "man is made in the image of God."  Even more often, one hears such expressions as "the freedom and sacredness of the individual."  This anthropology is familiar enough.  It is in fact the standard intellectual baggage of most of us.  Most of the time it doesn't matter that this anthropology is a mishmash, disjecta membra. . . .

Thursday, June 16, 2016

Hand-down days and constitutional law in the cave

By Kevin C. Walsh

There's nothing like a hand-down day at the end of June to amplify a particular kind of anxiety in those who worry, with Justice Alito, about "the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation." 

One way of getting at the problem is to think of decision-day "analysis" as constitutional law in the cave. Are we not like the prisoners who "assign prestige and credit to one another, in the sense, that they rewarded speed at recognizing the shadows as they passed, and the ability to remember which ones normally come earlier and later and at the same time as which other ones, and expertise at using this as basis for guessing which ones would arrive next"? (The Republic, 516c-d.)

For those interested in more developed thoughts along these lines, check out Steven Smith's trenchant assessment of our constitutional law, The Constitution in the Cave (available in both a McGeorge Law Review version and a First Things version). 

Okay, it's 9:59, so off to SCOTUSBlog I go. 

Wednesday, June 15, 2016

Will OT 2015 be remembered as The Term of No 5-4s?

By Kevin C. Walsh

In updating some slides for a Rotary Club presentation, I didn't see any 5-4 opinions for the Court this entire Term. For obvious reasons, the Term will end that way as well.

(Note: My source is the Supreme Court's "slip opinions" page. I just went through and scanned quickly for the vote spread in the slip opinions released before Justice Scalia's death on February 13. If I missed anything that should count as a 5-4 opinion for the Court, please let me know. The closest I saw was Campbell-Ewald v. Gomez, which was 6-3 on the judgment, but Justice Thomas concurred only in the judgment. Also, is anyone aware what 5-4 action there has been this term on the "shadow docket"?)

The 4-4 and 5-3 cases are the most obvious candidates for cases that took shape originally as 5-4 cases. But you can't estimate just from the resulting vote split, as it is most likely that the 8-0 decision in Zubik v. Burwell took shape before oral argument as a 5-4 case. We may see other examples of this going forward, as well.

Index of Pope Emeritus Benedict's General Audiences

By Elizabeth Schiltz

Among the many delightful people associated with Notre Dame's Center for Ethics and Culture that I got to spend time with in Rome over the past week is Ken Hallenius, Communications Specialist.  Ken has created a very cool index linking to all of Pope Benedict XVI's general audience reflections.  He has organized them by topic, such as "Prayer", "Faith", "Holy Women", "Doctors of the Church". 

Ken also brought to my attention this excellent essay by Amy Wellborn, very critical of the Vatican's framing (but not the act) of the recent elevation of Mary Magdalenes’ July 22 memorial to a feast.   Wellborn discusses the book she wrote about Mary Magdalene a few years ago (now out of print, but perhaps to be made available in digital form soon). 

Percy on Science, Scientism, and the Nature of the Person

By Rick Garnett

From "From Facts to Fiction" (1966):

If the first great discovery of my life was the beauty of the scientific method, surely the second was the discovery of the singular predicament of man in the very world which has been transformed by this science.  An extraordinary paradox became clear:  that the more science progressed, and even as it benefited man, the less it said about what it was like to be a man living in the world. . . .  After twelve years of scientific education, I felt somewhat like the Danish philosopher Soren Kierkegaard when he finished reading Hegel.  Hegel, said Kierkegaard, explained everything under the sun, except one small detail:  what it means to be a man living in the world who must die.

Walker Percy on Christianity and Narrative

By Rick Garnett

From "How To Be an American Novelist in Spite of Being Southern and Catholic" (1984):

The Christian ethos sustains the narrative enterprise in ways so familiar to us that they can be overlooked.  It underwrites those very properties of the novel without which there is no novel:  I am speaking of the mystery of human life, its sense of predicament, of something having gone wrong, of life as a wayfaring and a pilgrimage, of the density and linearity of time and the sacramental reality of things.  The intervention of God in history through the Incarnation bestows a weight and value to the individual human narrative which is like money in the bank to the novelist.

Tuesday, June 14, 2016

New England Jesuits Oral History Program: Fr. Robert J. Araujo, S.J.

By Rick Garnett

Our dear friend and MOJ colleague, Fr. Araujo, left behind -- among other things! -- a really nice interview, with Fr. Paul Kenney, S.J., which has been preserved thanks to the New England Jesuits Oral History Program.  You can get it here (and you should!).  Among (many) other things, Fr. Araujo reflects in the interview on his participation in the Mirror of Justice project over the years.  Check it out.

Reno on "The Loving Intellect"

By Rick Garnett

Rusty Reno wrote, recently:  

What does it mean to be an intellectual? The word comes from the Latin word for understanding, intellego. Lego has dense, multifaceted meanings: to choose, select, collect, and gather. It also means to read. When inter gets added, which means “between,” we get a compound meaning, something like “to read between the lines.” Intellego translates the Greek wordkatanoesis, which can be translated as “knowing across.” If we put these clues together, we come up with a basic working definition of an intellectual. He is someone who can see the differences between things (choosing) and the connections between them (collecting). He attends to reality as it presents itself, but penetrates deeper as well. An intellectual can read not just words and books, but reality and the world. He knows the stories things tell or the ideas they express. In the case of the Christian intellectual, he knows how reality directs us towards the logos, which is the person of Christ.

The goal of the intellectual life, therefore, is to see things as they are, in themselves and together. The fullest kind of knowing knows across as well as about, among as well as in. The same applies to reading, the lectio in the word “intellectual.” We are always reading across words; we read individual words in relation to the others. Discerning an ­argument or message requires synthesis, a “­knowing across.” . . .

Nice.

Berger on "The Good of Religious Pluralism"

By Rick Garnett

Is "pluralism" a given, to be "dealt with" or "managed" -- or, is it a good thing in itself?  The answer depends, I suppose, on what we mean by "pluralism."  With the question in mind, here's an interesting essay by Peter Berger, in First Things, called "The Good of Religious Pluralism."  (The essay summarizes Berger's recent book, The Many Altars of Modernity.) Here's a bit:

Secularization theory was not completely false; it was a massive exaggeration of what was a correct insight. It is beyond dispute that secular discourse, probably originating in modern science and technology, has transformed human life. (One such transformation: In premodern societies, almost half of all children died before age five; today most children, even in poor countries, live to adulthood.) The distinguished Canadian philosopher Charles Taylor wrote a big book with the title A Secular Age (2007). He gives a rich description of what he calls the "secular frame," a view of the world without religious transcendence. But he exaggerates the degree to which this discourse has pushed religion to the margins. We don't live in a secular age; we live in a pluralist age.

This pluralist age has important implications for religion, but they are different from those of secularity. We can speak of two pluralisms. The first concerns the fact that many religions and worldviews coexist in the same society. This is not unique to the modern era. The second kind of pluralism involves the coexistence of the secular discourse with all of these religious discourses. This pluralism, which is uniquely modern, has tended to accentuate the first kind, the pluralism of religions and worldviews. When I'm sick and my doctor is Jewish or Hindu, our shared secular vocabulary gives us a commonality that makes our religious differences something almost scandalous. How is it that we can agree on medical and other scientific or technical questions, yet not on ultimate matters?

There are some people who avoid the scandal of pluralism because they operate exclusively within a secular or a religious discourse (say, atheist Swedish sociologists, or Russian monks who practice the perpetual Jesus Prayer). However, most people of faith today manage to operate within both discourses. The question is not whether this can be done; we know that millions of people do it. The interesting question is how they do it.

Russell Moore on "culture warrioring"

By Rick Garnett

In the April 2016 issue of First Things, there's a short notice in Rusty Reno's "Public Square" section on Russell Moore's new book, "Onward:  Engaging the Culture Without Losing the Gospel."  As Reno describes, Moore proposes an alternative both to the older, "Moral Majority" notion of "taking back" "Christian America" and to the almost-certainly-naive notion that it's possible and necessary to "move beyond" the "culture wars."  "As [Moore] knows, we can't avoid them. . . .  The battle is coming to us, even if church leaders wish to avoid controversy."  Moore:  "If we do not surrender to the spirit of the age -- and we must not -- we will be thought to be culture warriors.  So be it.  Let's be Christ-shaped, Kingdom-first culture warriors."  I take it that "Christ-shaped" means, necessarily, charitable, humble, merciful, etc.  

Interestingly, almost a year ago, Moore warned his fellow Protestant Christians about Donald Trump and the costs of endorsing or embracing his campaign:  

Jesus taught his disciples to “count the cost” of following him. We should know, he said, where we’re going and what we’re leaving behind. We should also count the cost of following Donald Trump. To do so would mean that we’ve decided to join the other side of the culture war, that image and celebrity and money and power and social Darwinist “winning” trump the conservation of moral principles and a just society. We ought to listen, to get past the boisterous confidence and the television lights and the waving arms and hear just whose speech we’re applauding.

Here, Rod Dreher compares Moore's stance and tone to his own "Benedict Option" work.

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