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, July 29, 2011

Leo XIII, "the line of development," public worship, and "prophetic criticism"

By Patrick McKinley Brennan

Further to Rick's question about Leo XIII's understanding of the *meaning* of the "two there are" thesis, I am reminded of that touching line of Pius IX (related by Cardinal Ferrata in his memoires), which Rick and I have discussed: "My system and my policy have had their time; but I am too old to change.  My successor will have to do it."  Leo XIII certainly did change course, but not quite in the way the Murray revision insists. He affirms two powers, but not in splendid isolation from each other.  Consider, for example, the following from Leo's Apostolic Letter of March 19, 1902, written at the very end of his long pontificate:  "[S]ociety, in its foolhardy effort to escape from God, has rejected the divine order and revelation; it is thus withdrawn from the salutary efficacy of Christianity, which is manifestly the most solid guarantee of order, the strongest bond of fraternity, and the inexhaustible source of all private and public virtue.  This sacrilegious [sic] divorce has resulted in bringing about that trouble which now disturbs the world.  Hence it is the pale of the Church which this lost society must re-enter, if it wishes to recover its well-being, its repose, and its salvation. Just as Christianity cannot penetrate into the soul without making it better, so it cannot enter in public life without establishing order. . . .  If it has transformed pagan society . . . so, after the terrible shocks which unbelief has given to the world in our days, it will be able to put that world again on the true road, and bring back to order the States and peoples of modern times.  But the return of Christianity will not be efficacious and complete if it does not restore the world to sincere love of the one Holy Catholic and Apostolic Church."  Thus Leo.  And regarding "the line of development" George Weigel discerns from Leo forward to Benedict XVI, it needs to include acknowledgment of such as the following, from Pope St. Pius X's Consistorial Allocution of Nov. 9, 1903: "We do not conceal the fact that We shall shock some people by saying that We must necessarily concern ourselves with politics.  But anyone forming an equitable judgement clearly sees that the Supreme Pontiff can in no wise violently withdraw the category of politics from subjection to the supreme control of faith and moral confided to him."

It's all part of the tradition, and, with E.A. Goerner toward the end of his Peter and Caesar, I believe that the tradition points beyond Murray, et al., etc., to a deeper "integrism or integralism" (Goerner, 263) that perhaps involves not just law ("the canonsists") but true "public worship" (273 sqq.)  Goerner of course goes on to raise the need for "prophetic criticism" that will chasten the integralists' temptations toward externalia (268), but Goerner's conclusion is worth serious reflection: "Neither integrism nor prophetic criticism by itself is wholly Christian.  The Christian community needs both spiritual styles in order to be fully itself" (272).  Would George Weigel agree?  I suspect Leo would agree, at least with due qualification.

 

 

Wednesday, July 20, 2011

How the mind must work?

By Patrick McKinley Brennan

Here is how Steve Shiffrin insists the mind must work -- it's an exhaustive trllemma that he liberally asserts: "People either need to accept forced arguments, follow deliberative intuitions, and/or be comfortable with ambiguity."  

Steve thus offers three and only three epistemic possibilities. I am not persuaded.  The consequences of the argument, in the context Steve means to address in his post, are the reality of "human rights." Needless to say, there are additional important consequences that would follow from alternative possible resolutions of Steve's trilemma.

Steve's first possibility = "accept forced arguments."  The meaning of this proposition is unclear, but surely no one reasonably defends "accepting" what is "forced."  

Steve's second possibility = the actual possibility of "deliberative intuitions."  The question on this is the one Lonergan raised: Are there "intuitions" that *I* can validate? Lonergan's own recovery of his own epistemic functioning discarded the reality of intuition.  He could only validate experience, understanding, judgment, and love.  I cannot do better.   

The final possibility Steve offers = "comfort[] with ambiguity."  I have intellectual reason to prefer clarity concerning the conditions of judgment based on understanding and rooted in data, and full scope for probable but precise judgments.  

Monday, June 27, 2011

Christian Perspectives on Law: Cases and Materials

By Patrick McKinley Brennan

Speaking of important books coming out in law and religion . . . .  Please pardon the (intended) slight immodesty, but a book of possible interest and value to those engaged in matters discussed on MOJ is officially on the way.  A number of MOJers and friends of MOJ may recall that, back in January, 2011, at the annual meeting co-sponsored by the Law Professors' Christian Fellowship and the Lumen Christi Institute in San Francisco, I outlined the manuscript on which Bill Brewbaker (U of Alabama) and I were at work: Christian Perspectives on Law: Cases and Materials.  I am happy to report that the book will be published by Foundation Press.  

The animating principle of the book, which is intended for classroom use (in law schools and beyond), is that Christian theology and philosophy are (at least) every bit as able to provide a critical perspective on law as literary theory, queer theory, analytic jurisprudence, economics, and the rest can offer.  Christian thought -- not economic theory or sociological jurisprudence -- is the "lens" Bill and I mean to offer on law and legal practice.  We intend, moreover, to make the scope of the Christian perspective we offer as wide as possible, with clear indications of where we discern that individuals and groups across the Christian spectrum agree or disagree.   

The comments Bill and I received back in January and shortly thereafter were extraordinarily helpful and encouraging of the value of the project, and we're drafting with all of them in mind.  We aim to produce a book that is useful to as many potential teachers in this area as possible. The start-up costs for a course like this are huge, which is why we are not only writing the book but also preparing a teachers' manual that will be quite elaborate.

Please email Bill and/or me with suggestions, ideas, etc.  Our devout hope is that a serviceable book of this sort will increase the frequency with which the Christian perspectives on law are offered, both in Christian law schools and elsewhere.  We are grateful to the editors of Foundation Press for their willingness to publish a book that Hart & Wechsler, whatever their amazing strengths and contributions, never could have imagined.  

Monday, June 20, 2011

the layman keeps things under surveillance

By Patrick McKinley Brennan

I am by no means the first to mention this, but the widening phenomenon of blogging bishops is really getting me down.  If a bishop has an expertise on, say, Shakespeare, beef bourguignon, or golf, for example, then I perceive no necessary problem with his blogging about it, though I can imagine some questions that could be raised.  My immediate concern is with bishops' undertaking -- or appearing to undertake -- to exercise their teaching office through the medium of the blog.  It's not electronic media per se that I'm concerned about; it's the blog format in particular.  Eduardo's link to Archbishop Dolan's blog prompted me to check it out.  The comments in reply to the Archbishop's statement there begin with things like "Mr. Dolan," and it gets much, much worse.  By "worse" I don't refer to the fact of disagreement as such; the disagreement was to be anticipated, alas.  The problem I have in mind is this: the way the dialogue is conducted -- indeed, invited -- confirms the hoped-for perception by many that the bishop's voice is one among countless equal voices in the usual sort of chatter that is familiar on blogs.  I concede that the Church's authoritative teachers have difficult choices to make about how to use modern media to advance the work of the Word Incarnate, but I'm increasingly doubtful that authoritative teachers' blogging about, say, the just wage or the nature of marriage will do more to advance the Church's teachings on either of those questions than it will do to undermine the authority with which the Church in fact teaches.  I have great admiration for Arch. Dolan.  When I have been around him, I have been impressed by the strength of his exercise of his teaching office.  I hope I am wrong about the long-term effects of the blogging.  Though it involves a more serious venue, I would note that the Holy Father himself, by reducing himself to the status of a mere interviewee in the recent book Light of the World, created considerable difficulties concerning what the Church was teaching there, if anything, on the topics the Holy Father discussed with Mr. Seewald.  Those who seek the Church's authoritative teachings will not have reason to believe they find them in blog exchanges or in interviews, and it is perfectly plain that many of those commenting on Arch. Dolan's blog already treat his voice as just one among an endless babel.  Which reminds me of something I read recently about where Ockhamism leads in terms of ecclesiology:  "Under these conditions, it would be more frank to say, as Luther would say later, that there is not and there cannot be any doctrinal authority in the Church other than the letter of the Bible as clarified by the Holy Spirit.  Ockham only goes part of the way.  He maintains the principle of authority, but so well ruins the substance of it that its recognition is nothing other than an occasion to organize a distrust, suspicion, and, if need be, the revolt of the Christian in the face of it.  The doctor teaches, controls, and condemns the pontiff.  The layman keeps things under surveillance and, if necessary, punishes the doctor, the cleric, the bishop, or the pope.  In the name of the faith, one justifies an anarchic and disordered activism of the entire ecclesiastical body, and the logic of the system forbids any institution within it whatsoever from controlling it efficaciously.  If there were any reforming ferment that Ockham set into motion in the Church, it was indeed through his theory of the doctrinal magisterium that, while claiming to safeguard the principle of all traditional institutions, irremediably undermines the base of them." 

Wednesday, June 15, 2011

Please don't speak ill of the dead

By Patrick McKinley Brennan

It is true, as Michael Moreland mentions, that Martha Nussbaum has taken to complimenting Jacques Maritain as the first "political liberal," by which she means that he was Rawlsian before Rawls himself invented "a theory of justice."  My own attempt to come to the late Maritain's defense is here.  Nussbaum's spirited reply to my attempt to situate Maritain at an appropriate distance from the principle of the priority of the right over the good can be found at 54 Villanova Law Review 696-99 (2009).  I confess that I do think there is *something* to Nussbaum's claim (which probably goes to some aspects of Maritain's political philosophy that don't in the end stand up to proper scrutiny), but I consider it demonstrable that Maritain intended to deny and did deny the legitimacy of the basic political strategy that Rawls (and others) would later pursue.  The author of the following passage is not Rawlsian at heart:  "I distrust any easy and comfortable friendship between believers of all denominations.  I mean a friendship that is not accompanied, as it were, by a kind of compunction or soul's sorrow; just as I distrust any universalism which claims to unite in one and the same service of God, and in one and the same transcendental piety -- as in some World's Fair Temple -- all forms of belief and all forms of worship."  (Maritain, On the Use of Philosophy, 38).  To be sure, the later Maritain did deny that the civil ruling authority could properly privilege the place of the Catholic Church in the state (pace Ottaviani!), but he certainly never limited the aims of law to what would pass the test of the two basic principles of justice. In relevant respects, Maritain's account of the natural law as the source and limit of the positive law is quite traditional, which assures that he is no political liberal.  

Tuesday, June 14, 2011

Less subject?

By Patrick McKinley Brennan

Living, as we do, under a diminished sense of the ontology of groups, even of the Church, it is all too easy to conclude that groups are not bound by the obligations to God that bind individuals.  In the period leading up to the Council that delivered Dignitatis humanae and its important celebration of the inviolability of individual conscience, good Catholics continued to recognize that the state was no less obligated to honor God than individuals were.  In a lecture at the Pontifical Lateran Universtiy in March of 1953, Cardinal Ottaviani made the point in these terms:  "Men living together in society are not less subject to God than they are as individuals, and civil society, no less than individual human beings, is in debt to God, 'who gave it being and maintains it, and whose ever-bounteous goodness enriches it with countless blessings.'  [Immortale Dei].  Accordingly, as it is not lawful for any individual to neglect his duties to God and to the Religion according to which God wills to be honored, in the same way 'states cannot without serious moral offense conduct themselves as if God were non-existent or cast off the care of religion as something foreign to themselves or of little moment.' [Immortale Dei]."  J.C. Murray, of course, had important things to say by way of criticism of the traditional view espoused by Card. Ottaviani, and E.A. Goerner, in his towering book Peter and Caesar (1965), has some appropriately harsh things to say about how some pursue the Ottaviani (= traditional) line without adequate attention to particulars, among other faults (pp. 153-72).  Goerner, though, goes on to advocate the indispensability of striving "to Christianize politics" (p. 269).  Goerner's argument remains a timely warning against a too-ready embrace of Murray's colonizing historicism.

 

 

Saturday, June 4, 2011

"Concession" or Ius Divinum

By Patrick McKinley Brennan

Unlike Michael, Rob, and Rick, I'm not at Princeton to study "institutional conscience."  I am, however, close enough to take my friend Rick's bait thrown from New Jersey.  Rick writes that "in a democracy, requests for 'conscience'-based exemptions from validly enacted regulations, are almost always requests for concessions, for toleration, and not claims of right."  I don't see it that way.  Imagine a validly enacted law (statute or constitutional amendment) that forbade the availability of wine, with no exception being made for wine intended solely for sacramental use.  Would the Church, in asking the state to permit the availability of the matter of the sacrament necessary to the worship that is God's by divine right, be asking for a mere concession?  Democratically pedigreed enactments cannot reduce what is God's by right, though obviously they can impede -- and historically often have impeded -- individuals' and groups' giving God what is His by right.  Sure, it may -- or may not, frankly -- be prudent to couch requests for the liberty of the Church in terms of concessions, but under the surface of the request for concession is claim of right that democracy is powerless to diminish.  The concession theory that comes down to us from Hobbes is an attempt to make the civil authority into that false "mortal God" that has little or no room for the Church.  Our Lord, however, didn't say, "Hoc facite in meam commemorationem si Caesari placet." He said, "Hoc facite."

 

Sunday, May 15, 2011

The individual mandate and the common good

By Patrick McKinley Brennan

I have posted a considerably revised version of my recent paper, "The Individual Mandate, Sovereignty, and Ends of Good Government: A Reply to Professor Randy Barnett," which is forthcoming in the University of Pennslyvania Law Review.  The paper does not attempt to determine whether the individual mandate is a prudent piece of legislation under the current circumstances.  Instead, it tries, among other things, to show why the libertarian arguments against the mandate are inconsistent with a Catholic account of the principles of law and government.   These include -- without running afoul of the principle of subsidiarity (properly understood) -- leading the people to particular goods, which can, in turn, be referred to a common good.  Law is always ordered to a common good: "Operations are indeed in particulars.  But those particulars can be referred to a common good, [which is common] not with the community of a species or genus, but with the community of a final cause, according to which a common good is called a common end."  ST I-II 90.2 ad 2 

Thursday, May 5, 2011

More on John Finnis and others at Villanova Law

By Patrick McKinley Brennan

As previously announced, the sixth-annual John F. Scarpa Conference on Law, Politics, and Culture, to be held at Villanova Law on Friday, September, 30, 2011, will be dedicated to exploring and celebrating the work of John Finnis, Professor of Law and Legal Philosophy in the University of Oxford and Biolchini Family Professor in the University of Notre Dame.  As readers of MOJ will be aware, Oxford University Press will soon publish five volumes of Prof. Finnis's collected papers and a new edition of his now-classic 1981 bookNatural Law and Natural Rights.
 
The Conference's other speakers are a suitably distinguished and varied group:
 
-George Christie, James B. Duke Professor of Law, Duke University School of Law
-Michelle Madden Dempsey, Associate Professor of Law, Villanova University School of Law
-John Keown, Rose M. Kennedy Professor of Christian Ethics, Georgetown University
-Frederick G. Lawrence, Professor of Theology, Boston College
-Mark Murphy, McDevitt Professor of Religious Philosophy, Georgetown University
-Fr. Martin Rhonheimer, Professor of Philosophy, Pontifical University of the Holy Cross (Rome)
-Michael J. White, Professor of Law and of Philosophy, Arizona State University
Please mark your calendars for September 30, 2011.  All of the many topics and themes on which Prof. Finnis has worked will be fair game for dialogue at the Conference.

Friday, April 29, 2011

Fr. Rhonheimer is coming to Villanova Law

By Patrick McKinley Brennan

I'll take the occasion of Rich Myers's mention of Sandro Magister's (fascinating) story on the "hermeneutic of reform" and religious liberty to issue another invitation to visit Villanova.  We've got great Catholic programming going on at Villanova!  As previously announced, the sixth-annual Scarpa Conference will celebrate and explore the work of John Finnis, someone who needs no introduction here.  Prof. Finnis will deliver the keynote address at the conference.  What hasn't been announced until now is that Fr. Rhonheimer will also speak at the conference.   A complete list of the speakers will be announced soon.  The date of the conference is September 30, 2011.

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