Over the past several months, a good deal of public discussion has appeared in various media sources, including web logs, about the perceived surplus of lawyers, the present cost of legal education, and the declining applicant pools of would-be law students who are reassessing the economics of investing large sums of money on legal education. I would think that most of the contributors to the Mirror of Justice have heard and participated in discussions about these topics formally and informally at our respective institutions.
I, for one, do not view any form of higher education as a market-driven economy. I often respond negatively when education is passed off as the equivalent of some product or merchandise in which the purveyor, i.e., the educational institution, needs to find its “market” in order to be successful. I realize that there are important economic elements of education in general and of higher education, including legal education, in particular. But I think it unwise to make important decisions about education as if it were a market only seeking to survive, especially in difficult economic times.
I also realize that many educational institutions, including law schools, like to portray themselves a filling some kind of niche in the world of higher education. As a member of a religious order that founded over several dozen institutions of higher learning in the United States, over half of them with law schools, I often hear my confreres in the order and my lay colleagues assert that “our” schools have the niche of meeting the needs of “social justice,” and it is “social justice” that is the raison d’être of and for these law schools. If this line of reasoning and justification is to be followed, then it is “social justice” which enables these institutions to attract students and faculty to join their ranks. I find a similar justification offered by other institutions that were founded by other religious orders or dioceses and choose to use the moniker “Catholic”.
But is “social justice” really the element that makes Catholic legal education distinctive and attractive to future students and faculty? What is “social justice”—what constitutes it? While I am at it, are there law schools which are for “social injustice”? Frankly, I find the term “social justice” being susceptible to many different, often conflicting definitions and thus realize it difficult to justify the distinctiveness of a law school that identifies itself as Catholic by relying on this nebulous term. Moreover, I have seen definitions of “social justice” that would include practices or beliefs which are antithetical to the Church’s teachings, e.g., abortion, same-sex marriage, euthanasia, some kinds of bio-medical experimentation. No, I don’t think “social justice” is the real element that makes a law school one that can call itself distinctively Catholic.
If there is, in fact, a declining interest in attending law school these days, is there something that can make a law school Catholic in fact knowing that it must also prepare students to become good practitioners of what is supposed to be a noble profession?
Indeed there is. Of course it would be found in an institution that is not ashamed of Catholic teachings, many of which have a direct or indirect bearing on the law. As laws and legal education deal with many of the same issues—e.g., labor-management issues, regulation of economic markets, the use of force, the role of sovereignty in the international order, just compensation in wages and in reparations (damages), criminal matters, health care regulation, etc.—why should a law school that relies on the modifier “Catholic” not be motivated to allow these great teachings to inspire the direction in which its curriculum is formed and taught?
Or is the temptation really to be just like everyone else? If this is the case, then there really is nothing that makes a Catholic law school really distinctive. And if there is nothing distinctive about it in regards to the substantive content of its curriculum and its outlook, then is there any reason to think it will fare better than other law schools given the current climate of the decreasing interest in obtaining a legal education?
RJA sj
Sunday, March 20, 2011
I recently came across an announcement for a four-session colloquium that will take place on four successive dates running from September to October 2011 that should be of interest and concern to the contributors and readers of the Mirror of Justice. Members of the academic communities at Fordham University, Fairfield University, Yale Divinity School, and Union Theological Seminary are sponsoring this program which is entitled “More Than A Monologue: Sexual Diversity and the Catholic Church.” Information about this program is hosted on a web log at Fairfield University which is available here. As readers and contributors are aware, we at the Mirror of Justice have frequently addressed issues related to topics concerning human sexuality in the past. I am reasonably confident that we will continue to do so in the future.
The conveners of “More than a Monologue” state that they “are coming together to change the conversation [and perhaps the teachings] about sexual diversity and the Catholic Church.” Apropos of this, the web log further indicates that:
For too long, the conversation on lesbian, gay, bisexual and transgender issues in the Roman Catholic Church has been only a monologue — the sole voice being heard is that of the institutional Catholic Church. We must engage in more than a monologue by having a 21st century conversation on sexual diversity, with new and different voices heard from.
The four sessions that will be offered are entitled: (1) Learning to Listen: Voices of Sexual Diversity and the Catholic Church; (2) Pro-Queer Life: Youth Suicide Crisis, Catholic Education, and the Souls of LGBTQ People; (3) Same-Sex Marriage and the Catholic Church: Voices from Law, Religion, and the Pews; and, (4) The Care of Souls: Sexual Diversity, Celibacy, and Ministry.
Many of us who contribute to the Mirror of Justice have previously addressed most, if not all, of these issues with a variety of perspectives.
The organizers of this program also claim that “This series will show the variety of viewpoints on issues of sexual diversity among Catholics.” As just pointed out, they also claim that “the sole voice being heard is that of the institutional Catholic Church.”
I wonder if this is an accurate description of the program and the situation which its organizers describe. First of all, many of the currently advertised speakers are well known for their views on human sexuality and their criticism of or disagreement with Catholic teachings. I cannot see how they contend that “the sole voice being heard is that of the institutional Catholic Church.” Moreover, the modifier “institutional” in describing the Catholic Church is problematic. In the hope that there is more to this program than is currently advertised, I realize that there may be other speakers not listed on the web site who may very well explain the Church’s position on these neuralgic issues and why she teaches what she teaches. However, the diverse voices that are currently billed on the website are not really known for supporting the Church’s teachings on human sexuality, yet, as I have stated, their views and their works are well known and well publicized. It is a misrepresentation to imply that their voices are not heard on these critical issues since the only voice heard is that of “the institutional Catholic Church.”
If the organizers of “More than a Monologue” intend on presenting more than a monologue, I look forward to hearing about who will be the speakers scheduled to explain with fidelity the “what” and the “why” of the Church’s teachings. As the program is currently structured, I do not see this being any part of their offer. If I may borrow from Clara Peller, where’s the debate? Is it conceivable that the sponsors are more interested in convincing the audiences that the Church’s teachings are wrong and their challenges are correct? If so, a monologue will suit the cause.
RJA sj
Tuesday, March 1, 2011
Earlier today Rob posted a notice of the recent action taken by the High Court of Justice, Queen’s Bench Division directed against a Christian couple and quoted from N. 93 of the approved judgment in Eunice and Owen Johns v. Derby City Council on the suitability of observant Christians to be foster carers (parents) in the UK. The full decision is here [Download Johns_Approved_Judgment]. Later on in N. 102, the court raises the question of the status of the freedom of religion and the refusal of the would-be foster parents to compromise the tenets of their Christian faith. The court holds that there is only a “qualified” right founded on religious freedom [the court’s italics] based on the authorities upon which it, the court, relies. The court then asserts that there are other interests at stake, and this “will be particularly so where a person in whose care a child is placed wishes to manifest a belief that is inimical to the interests of children.” (My italics)
So, the court holds and imposes the view that Christian beliefs which do not embrace homosexuality are “inimical to the interests of children.” I would suggest that the court, for whatever reason or no reason, overlooks other law that is applicable to this case. In this age when international law is often relied upon to help direct judicial decision-making, the court in Johns v. Darby City Council fails to acknowledge the fact that the UK is a party to both the 1966 International Covenant on Civil and Political Rights (ICCPR) and the 1966 International Covenant on Economic, Social, and Cultural Rights (ICESCR). Article 18(4) of the ICCPR states that “The States Parties [here the UK] to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.” Article 13(3) of the ICESCR presents an almost identical requirement “to ensure the religious and moral education of their children in conformity with their [the parents] own convictions.” It would then seem that the High Court of Justice failed to take stock of pertinent law to which the UK is bound assuming that foster carers hold the status of legal guardians.
The justifications for these provisions of the two 1966 Covenants are found in the working papers of the Universal Declaration of Human Rights where the drafters of the declaration knew that they had to preserve the rights of parents regarding the moral and religious education of their children which had first been compromised and then eviscerated by National Socialism. It appears that the High Court of Justice failed to take stock of this as well.
So what does Catholic legal theory have to say about all this? In 1965, one year before the ICCPR and the ICESCR were finalized, the Second Vatican Council in Dignitatis Humanae Personae, the Declaration on Religious Liberty, stated that,
Parents, moreover, have the right to determine, in accordance with their own religious beliefs, the kind of religious education that their children are to receive. Government, in consequence, must acknowledge the right of parents to make a genuinely free choice of schools and of other means of education, and the use of this freedom of choice is not to be made a reason for imposing unjust burdens on parents, whether directly or indirectly. Besides, the rights of parents are violated, if their children are forced to attend lessons or instructions which are not in agreement with their religious beliefs, or if a single system of education, from which all religious formation is excluded, is imposed upon all. N. 5.
Additionally, in 1983, the Pontifical Council for the Family issued the Charter on the Rights of the Family, and it had this to say about the issues found in the Johns case:
a) Parents have the right to educate their children in conformity with their moral and religious convictions, taking into account the cultural traditions of the family which favor the good and the dignity of the child; they should also receive from society the necessary aid and assistance to perform their educational role properly. b) Parents have the right to freely choose schools or other means necessary to educate their children in keeping with their convictions. Public authorities must ensure that public subsidies are so allocated that parents are truly free to exercise this right without incurring unjust burdens. Parents should not have to sustain, directly or indirectly, extra charges which would deny or unjustly limit the exercise of this freedom. c) Parents have the right to ensure that their children are not compelled to attend classes which are not in agreement with their own moral and religious convictions. In particular, sex education is a basic right of the parents and must always be carried out under their close supervision, whether at home or in educational centers chosen and controlled by them. Article 5
It would seem, then, that if the court were to revisit the issues in this case, it would need to take account of the two 1966 Covenants. Moreover, if a Catholic family were to find itself in the situation confronting the Johnses, they would also be guided by the principles of Dignitatis Humanae Personae and the Charter of the Rights of the Family.
RJA sj
Wednesday, February 16, 2011
A couple of days ago The New York Times ran an editorial entitled “More Shame” in which it critiques the Roman Catholic Church—especially its hierarchy—on the ground that children are still at risk of being victims of sexual abuse. The journal relies on the recent grand jury report from Philadelphia which notes, amongst other items, that as recently as the 1990s, children are still being sexually assaulted and abused by clerics and laity.
The editorial advances three important points about this tragic situation. The first is that children remain at risk in spite of either good intentions or due to mismanagement of the assignment of “credibly accused priests” to new assignments. I cannot argue about the importance of raising the gravity of this matter knowing that children remain at risk. The problem cannot be responsibly addressed unless action is taken against all “credibly accused” persons—not just priests.
The second point advanced by the editorial pertains to recommended action of the Archdiocese to remove “credibly accused priests from ministry and financing truly independent investigations.” But, again, why limit this action to “credibly accused priests”? Why not make the exhortation holistic and remove all credibly accused persons? Or is it that only clerics alone deserve such action? If so, the problem will continue to plague us and future victims.
This brings me to the editorial’s third point regarding the grand jury’s recommendation that the Pennsylvania civil statute of limitations on sexual abuse claims be suspended for two years. The editorial urges that all states do the same. Otherwise, “[t]here will be no justice or healing until all victims’ voices are heard and the church [sic] finally shows true accountability.” My point is why restrict the impact of this comment and the presumed suspension of statutes of limitations to the Church? It is clear that those members of the Church who have defiled themselves by sexually assaulting and abusing children are but a small percentage of those responsible for the tragedy and the horror, the sin and the crime. According to the National Association to Prevent Sexual Abuse of Children [NAPSAC], there are over 39 million survivors of childhood sexual abuse in the U.S. today. It is clear that a small percentage of these cases is attributable to the misconduct of Church members. Should we not be concerned about the remaining majority of juvenile sexual abuse cases if “true accountability” is the goal? I reply in the affirmative. That is why NAPSAC has argued that abuse claims which have been barred in the past—such as those against public school systems—also benefit from statutory reform. Unfortunately The New York Times’s editorial places the blame only on the Church. This may help some victims; however, the large majority will be denied the “true accountability” which this journal of opinion claims to pursue.
RJA sj
Sunday, February 13, 2011
I have recently started my first read of Nigel Simmond’s 2007 book Law as Moral Idea. Professor Simmonds is Reader in Jurisprudence at Cambridge University’s faculty of law where he is also Director of Studies in Law. So far, it is a fascinating and illuminating read. On the plus side, Simmonds takes to task a number of prominent contemporary legal theorists who maintain the H.L.A. Hart dichotomy of law and morality. As Simmonds argues, “Only in the union of legality and justice is either idea fully realizable.”
One of the drawbacks of his impressive work, however, is his strong reliance on Kant and Hobbes as sources of theory that link law and morality. They are relevant, but they are not the only voices who should be considered in such an important discussion. It strikes me that many Catholic theorists of earlier and present-day periods have contributed much to this debate. However, they are conspicuous by their absence in Professor’s Simmonds discussion.
One thing that I can do besides offer a lament is to intensify my work in prominently featuring the (Catholic) voices that argue and justify the necessary link between law and morality.
RJA sj
Wednesday, February 9, 2011
As one who teaches a fall seminar to law and graduate philosophy students entitled Natural Law & Natural Rights, I am in debt to our friend and colleague Robby George and his collaborators who have initiated a new on-line resource available at the Witherspoon Institute entitled: Natural Law, Natural Rights, and American Constitutionalism. Having looked over the site and its contributions, I know I shall find this project an important and rich resource for my work and that of my students. In the words of one of other other good friends and colleagues, Rick Garnett, check it out!
RJA sj
