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.

Monday, December 10, 2012

Subsidiarity. Who knew?

By Patrick McKinley Brennan

I've been really gratified -- and quite surprised  -- by the hundreds of downloads of my new (and admittedly not-sexy) chapter on subsidiarity in the tradition of Catholic social doctrine.  Who knew that subsidiarity would attract more readership than, say, the individual mandate and contraception?  God only knows.  

One important point to make about subsidiarity in Catholic social doctrine is that it is not a consequentialist position.  I was reminded of this recently when I read fn. 5 on p. 163 of Nick Wolterstorff's The Mighty and the Almighty: An Essay in Political Theology (CUP 2012). Wolterstorff accurately observes that many Catholics defend subsidiarity on consequentialist grounds.  To reduce the social order to the counting of consequences is, however, to make the very mistake the Church was resisting and condemning when she authoritatively formulated the ontological principle of subsidiary function.  Subsidiarity is not checks-and-balances by another name.  It is a statement about the natural right of naturally social persons and their upright associations.  We can recall that the American revolution was defined "more than anything else by its rejection of the fundamental metaphysical and methodological assumptions of the medieval Scholastic tradition" (Feser, Locke [2007], 9).  True subsidiarity, including its acknowledgment of hierarchy among societies, is hard for Locke's heirs to understand.  Maritain's rendering of subsidiarity as "the pluralist principle" hides the layeredness of society that subsidiarity affirms.  

 

Wednesday, December 5, 2012

The catholicity of subsidiarity

By Patrick McKinley Brennan

I recently mentioned here my new chapter "Subsidiarity in the Tradition of Catholic Social Doctrine," which soon thereafter was noted here by the Acton Institute and, even more recently, here by the Acton Institute's Jordan Ballor.  Ballor's engagement with the paper is substantive, and I am grateful for it.  I would, though, like to offer a clarification.  Ballor writes, "And pace Brennan, it is not clear to me that there is one univocal version of subsidiarity, at least as it arises out of the early modern period."  The "pace" is unnecessary.  I do not contend that subsidiarity is a univocal term; indeed, as Ballor also reports, the very point of the book to which my chapter is a contibution is a "comparative" perspective on subsidiarity.  My assigned task in writing the chapter was to tell the what subsidiarity means in Catholic social doctrine, period.   I agree with Ballor that other traditions have affirmed something more than superficially similar to subsidiarity as it is understood in the tradition of Catholic social doctrine ("sphere sovereignty" comes to mind), which is exactly what one would expect of what is (as Catholic social doctrine affirms) an "ontological principle."  I am happy to agree with Ballor concerning the small-c catholicity of subsidiarity, while also defending the proposition that the account of subsidiarity articulated in Catholic social doctrine is the best on offer.  I look forward to reading Ballor's work on subsidiarity. 

Thursday, November 29, 2012

Subsidiarity

By Patrick McKinley Brennan

I have a new paper on subsidiarity here.  The paper is a chapter in what I believe will be the first English-language, book-length, comparative study of subsidiarity. My topic is subsidiarity in Catholic social doctrine, the place where the neologism "subsidiarium" originated.  Subsidium, meaning help, is a Latin word in use since Roman times, but the new word subsidiarium denotes a plural social order that is derivative of social justice.  Subsidiarity is the way the common good is to be achieved.  

Talk of the common good "seem[s] unintelligible (even proto-fascist) to many contemporary Westerners" (John Rist, Real Ethics [Cambridge, 2002], 207), but subsidiarity, one of the basic principles of Catholic social doctrine, is about how the common good is to be achieved.  Subsidiarity is not about smallness per se, devolution, or even "mediating" institutions that balance power or perhaps limit the state.  It is about respecting the ontology of group persons: respecting associations, and helping them as necessary, as they refer their internal common goods to the overall common good.  

Thursday, October 25, 2012

"How about neither?"

By Patrick McKinley Brennan

In response to my recent observation about the false dilemmas that pile up when Christians try to do politics without sufficient benefit of the Good News, I received the following from one of my favorite former students:

 

Thanks for pointing out some of the false dilemmas regarding American politics in Mr. Weigel’s article.  As someone who served, and knows others who serve and are getting worn down by the non-stop deployments, this false dilemma struck me most:


“Do you want to live in an America that is respected throughout the world for being just as well as strong, an America that supports others’ quest for freedom? Or are you resigned to living in a world where jihadists murder American diplomats, tear down the U.S. flag, and raise the flag of radical Islam over U.S. embassies with impunity?”

 

How about neither?  As you suggested, the Gospel is instructive, particularly the Beatitude:

 

“Blessed are the meek; for they shall possess the land.”

 

Or put another way in Chesterton’s critique of Kipling:

“He admires England, but he does not love her; for we admire things with reasons, but love them without reasons. He admires England because she is strong, not because she is English. . . In a very interesting poem, he says that—‘If England was what England seems’ --that is, weak and inefficient; if England were not what (as he believes) she is--that is, powerful and practical-- ‘How quick we'd chuck 'er! But she ain't!’”

 

 

Wednesday, October 24, 2012

Be careful what you ask for

By Patrick McKinley Brennan

Over at First Things, George Weigel asks "What Kind of Country Do You Want?"  A "fair question," as they say.  Weigel's answer, however, strikes me as a series of false dilemmas.  We would do better, I think, to "dream up" or, mirabile dictu, even reappropriate some basic Catholic principles that are not so cramped as the ones to which American Catholics, both "liberal" and "conservative," too often confine themselves.  We needn't blunder on preferring our political system and its possible permutations to Christ and his beautiful demands.  Is there going to be any true peace before the reign of Christ?  The separation-of-powers and all the rest of the modern "solution" just aren't up to the stated task of neutralizing the public effects of original and personal sin. The only true solution is a complete embrace of all the ways by which government is legitimated and vindicated through its *serving* all.  Christ is the servant of all, and service is the mark of good government.  That's the sort of "country" I "want" -- one that serves all!  It's the one I believe the Gospel demands. Weigel and I agree about many of the results to be desired and sought in the political realm, but I resist the claim, whether by Weigel or others, that we can realize the promises of the Gospel without tethering politics to the same Gospel.                 

Tuesday, October 23, 2012

"The Mighty Work of Making Nations Happy"

By Patrick McKinley Brennan

Here is the abstract of a paper I have forthcoming in the Pepperdine Law Review:

 

"This article is an invited response to James Davison Hunter’s much-discussed book To Change the World: The Irony, Tragedy, and Possibility of Christianity in the Late Modern World (Oxford University Press, 2010). Hunter, a sociologist at UVA and a believing Protestant, claims that law’s capacity to contribute to social change is 'mostly illusory' and that Christians, therefore, should practice 'faithful presence' in the public square rather than seek to influence law directly. My response is that it is, in fact, law’s stunning ability to alter and limit available choices that makes it an object of deservedly fierce contest. The wild protest over the recent enactment of a 'Christianized' constitution in Hungary is illustrative. Hunter worries that law is too much just about power. I agree with Hunter’s argument that for law to represent more than power, it must be linked to a realm that is not reducible to politics. Hunter indefensibly downplays, however, the role of the natural law and of the Church in establishing such an apolitical realm. Hunter’s thesis provides an opportunity to reconsider the modern orthodoxy according to which the ideal is for the state to be 'separate' from the Church. The conscience of a free people is not all the spiritual authority there is – and more is needed."

 

The paper is an argument against what John Rao has referred to as "the grand coalition in favor of the status quo."  The work of making nations happy isn't just a matter of living by the preferences enacted into law by elites, a fact worthy of reflection in the twilight of this election season.    


 

Monday, October 8, 2012

The Founders in their own words: the "artificial scaffolding" of Christian belief

By Patrick McKinley Brennan

"And the day will come when the mystical generation of Jesus by the supreme being as his father in the womb of a virgin will be classed with the fable of the generation of Minerva in the brain of Jupiter. But we may hope that the dawn of reason and freedom of thought in these United States will do away [with] all this artificial scaffolding."

— Thomas Jefferson to John Adams, 11 April 1823, Adams-Jefferson Letters, Lestor J. Cappon, ed., II, 594 

Friday, October 5, 2012

The Church is not a bomb shelter

By Patrick McKinley Brennan

Here's the abstact of a new paper, 'Religious Freedom,' the Individual Mandate, and Gifts: On Why the Church is Not a Bomb Shelter, that I recently posted:

"The Health and Human Services' regulatory requirement that all but a narrow set of "religious" employers provide contraceptives to employees is an example of what Robert Post and Nancy Rosenblum refer to as a growing "congruence" between civil society's values and the state's legally enacted policy. Catholics and many others have resisted the HHS requirement on the ground that it violates "religious freedom." They ask (in the words of Cardinal Dolan) to be "left alone" by the state. But the argument to be "left alone" overlooks or suppresses the fact that the Catholic Church understands that it is its role to correct and transform society, not merely to be left alone in a gilded cage. This paper uses the HHS mandate as a vehicle by which to clarify the Catholic understanding of the ideal -- but currently mostly unachievable -- relationship between Church and state: the state should receive its principles from the Church, not the Church from the state. Social justice and subsidiarity disallow a state that reduces the Church to the status of a bomb shelter. Leviathan is happy to have the Church out of sight and out of mind."

The paper can be reached here.  Its argument proceeds by unpacking the place of the respective munera of associations, above all the Church in her many manifestations such as schools and hospitals, and of individuals.  The concept of munus (of which munera is the plural) conjoins the Aristotelian notion of function and the theological notion of vocation.  The bottom line is that munera are gifts to be given, not possessions to kept in a bunker.  The world thinks of the state's sovereignty in terms of power; Catholic social doctrine understands the state to be in service to all. 

The privatization of "religion"?

By Patrick McKinley Brennan

I find the following two recent statements by the estimable Cardinal Dolan impossible to reconcile.

Statement 1, the more recent statement, is this:

"I am worried that we may be reducing religious freedom to a kind of privacy right to recreational activities, reducing the practice of religion to a Sabbath hobby, instead of a force that should guide our public actions, as Michelle Obama recently noted, Monday through Friday."  The context is here.

 

Statement 2, the somewhat earlier statement, is as follows:

"That’s all it’s really about: religious freedom.

It’s not about access to contraception, as much as our local newspaper—surprise!—insists it is. The Church is hardly trying to impose its views on society, but rather resisting the government’s attempt to force its view on us.

Vast and unfettered access to chemical contraceptives and abortifacients—all easier to get, they tell me, than beer and cigarettes—will continue. If you think it’s still not enough, then subsidize them if you insist. Just don’t make us provide them and pay for them!"  (emphasis added)  The context is here.

Statement 2 sure sounds like a plea to privatize the Catholic religion.  The alternative would be for the Church to teach, as a "force . . . that guide[s] our public actions," that no one should engage in conduct that violates the moral law.  When, instead, the claim is that what it's "all . . . about" is "religious freedom" and nothing more, the Church ceases to be a force that guides our public actions.  It's not just about "religious freedom," however.  It's also and fundamentally about the Church's divine mission to correct and transform society.

Friday, September 28, 2012

original intent -- and why law is not a "message in a bottle"

By Patrick McKinley Brennan

Marc DeGirolami rightly wonders who *still* defends orginal intent originalism.  I do, including in this recent paper.  As I see it, all of the alteratives amount to giving the lawmaker less than his due. Messages in bottles are, at best, information; they are not laws.  Law is in the mind of the lawmaker (and promulgated), not black marks on a scrap in a bottle.
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