I've posted a new chapter on the practical, including U.S. constitutional, consequences of taking seriously the Thomistic thesis that the natural law is our participation in the eternal law and is, therefore, a real law, one from which no rational person, not even the human lawmaker we sometimes mistakenly call sovereign, is exempt. This chapter consolidates and continues some of my earlier work aimed at showing that a natural law account of human law does not per se lead to what is commonly referred to as judicial activism. My account does, though, exalt the role of the human lawmaker in a way that will perhaps be disturbing to those, such as Justice Scalia, who tend in the direction of a kind of democratic fundamentalism: in leading the multitude to the common good, the lawgiver is doing something God-like. (Was this perhaps the hidden premise of Justice Stevens's justification of the rule of Chevron? I think we know the answer).
Those who were present at the Law and Religion Roundtable at Brooklyn Law this past June saw an early version of this chapter. In response to the helpful comments of several at the Roundtable (especially Andy Koppelman, Kent Greenawalt, Nelson Tebbe, and Steve Shiffrin), I have sharpened my account of why and how the eternal law provides the nonnegotiable definition of all law, including human law. My account still won't satisfy those who wish to call an unjust "law" a law, but I think I've done better now at showing why Thomas was right -- and why even those of us in the Anglo-American jurisprudential tradition would do better -- to call such a thing a mere "document."
Update: The original link I provided didn't work. I believe the problem's been corrected.
Monday, September 27, 2010
In the Dogmatic Constitution on Divine Revelation, (Dei Verbum), the fathers of the Second Vatican Council taught that "insight grows into what has been handed down" (no. 8) or, as another translation has it, "there is a growth in the understanding of the realities and the words which have been handed down." The phenomenon under discussion, when it occurs, is what is sometimes referred to as "doctrinal development." Whatever we call the phenomenon, it occurs, as the Council continues (no. 8), "through the contemplation and study made by believers, who treasure these things in their heart (cf. Lk. 2:19, 51), through the intimate understanding of spiritual things they experience, and through the preaching of those who have received through episcopal succcession the sure gift of truth."
I mention this because of this piece of moral theology and church (of England) teaching by Rowan Williams. Damian Thompson asks the right question: Would Pope Benedict ever -- think especially about his candor in the press conferences on the airplanes -- reply to a most important question, concerning what some regard as gay rights, with a "pass"? Williams has an impossibly hard job, a fact that is underscored yet again by this serious man's dodging a serious doctrinal question with a "pass."
Authority is made of sterner -- and subtler -- stuff, as John Noonan's work on "doctrinal development" has shown.
Thursday, September 23, 2010
I've long wanted to understand more deeply what was at issue when Jacques Maritain and Charles De Koninck famously disagreed about the nature of the common good (and the individual person's relation thereto). The recent translation, by Ralph McInerny, and publication, by the University of Notre Press, of The Writings of Charles De Koninck (2009) have been a great help (to me). This link, to a blog I recently discovered and like a lot, states the terms of the debate with remarkable economy.
Thursday, September 16, 2010
A transcript of the Holy Father's press conference on the plane earlier today is already available
here. It contains the Pope's most decisive language yet on the failures of Church officials to stop the abuse and on the priority of healing of victims. There is also very strong language about what must be done with the abusers themselves, language that I suspect will raise some eyebrows on account of its denial of the operation of "free will" in certain relevant situations. In all, though, this State Visit, which is also a pastoral visit, is off to a very promising start, as this thematic money-quote suggests: "Where there is anti-Catholicism, I will go forward with great courage and joy." Can't beat that.
Wednesday, September 15, 2010
Back in early August, I raised some questions (
here,
here, and
here) concerning what bad theology of the Mass and made-up liturgies mean for Catholic thought about the state, civil society, the work of being human, and so forth. Today I stumbled across a fascinating psychological study, co-authored by the always interesting Paul Vitz (emeritus in psychology at NYU) and his son, that has now
shown that part of what accounts for the liturgical "creativity" that seems to be almost everywhere in evidence is -- lo! -- the celebrant's narcissism. Check out their account! In a culture in which self-definition by self-assertion is the principal cultural and moral problem, it is not surprising that self-assertion would reorient even the sanctuary during Mass. In such a culture, it is correlatively even more needful that the liturgy exemplify how self-definition by self-assertion is the problem to be overcome, not the omega point of human history. This is not about Latin, lace, or the location of the celebrant's seat per se, but rather our respective orientations in the action of the liturgy and who's at the center of the act of worship.
Monday, September 13, 2010
Robby George invites us to ask where the danger actually lies when candidates for jobs in the legal academy reveal (or not) what they hold as true. I'll answer (and I know it's only a partial answer) with a true story. I've taught at several law schools, and one of them once interviewed someone who was then recently first in his class at one of the top three or so law schools in the US. He was also then a recent clerk to one of the "conservative" Justices of the Supreme Court. He also brought to the table heaps of other sterling credentials and an engaging way that portended excellent teaching and great citizenship. I attended his job talk, and was impressed. Many other colleagues were impressed. Other colleagues were opposed, though, and one visited me in my office. She tried to explain that the job talk was deficient. I offered my reasons for thinking it was very good, certainly far, far above our "standard." She countered that the candidate "appeared nervous." I asked why this mattered; I also said I didn't see any nervousness (though, of course, entry-level candidates *should* be nervous, as this story illustrates). Emboldened, she went on to aver that the candidate was nervous because of his own insecurity about the "conservative" quality of the thesis of his talk. I'm not myself sure the views he defended were recognizably (or in any way truly) "conservative" (or liberal or any other category like the one invoked), but they certainly weren't popular locally. For whatever reason, no offer of employment ever issued to said candidate. He now teaches at a far better law school than the one at which I then taught.
When the person I have in mind interviewed at my then law school, he was married (to a woman). Later, he divorced and came out of the closet as a gay man. When I once mentioned that development to an earlier opponent of the candidate whose trajectory I've just described, the response was that if that change had occurred earlier, an offer of employment would have been much easier to make.
QED
Wednesday, September 8, 2010
Damian Thompson in the
Telegraph offers some telling data and insights about how incitement to religious hatred sometimes comes to pass. Could any educated person in good faith reject the corrections Thompson makes to Tatchell's "account"? The further question, then, is the source and motive for the misprepresentations Thompson calls out. Any number of possible answers comes to mind, though some more than others.
