The Second Annual John F. Scarpa Conference on Law, Politics, and Culture will be held at Villanova on October 16, and it's now possible to register for the event by clicking here http://www.eventbrite.com/event/68959259
This year's topic is "The Judicial Office in Our Constitutional Democracy: Avoiding Dogmatism on a Disputed Question." Justice Antonin Scalia will deliver the keynote address, and the other speakers include Professors Paul Kahn (Yale), Jean Porter (Notre Dame), James R. Stoner, Jr. (LSU), and Jeremy Waldron (NYU).
The early returns suggest that the event is going to fill up, so please register early (and tell your friends)!
The schedule for October 16 is as follows:
8:00-8:45 a.m. - Registration/Continental Breakfast
8:45 a.m. - Welcome: Father Peter Donohue, OSA, President of Villanova University
8:50 a.m. - Welcome: Dean Mark Sargent, Villanova University School of Law
9:00 a.m. - Textualism and Democracy
Jeremy Waldron
University Professor, New York University School of Law
Commentator:
Professor Catherine Lanctot
Professor of Law, Villanova University School of Law
Moderator:
Professor Chaim Saiman
10:00 a.m. - Break
10:15 a.m. - Determination and Deduction: How Aquinas Might Distingquish the Work of the Legislator from the Work of the Judge
James R. Stoner, Jr.
Professor of Political Science, Louisiana State University
Commentator:
Professor Michael Moreland
Assistant Professor of Law, Villanova University School of Law
Moderator:
Visiting Professor Kevin Walsh
11:15 a.m. - Meaning, Intention, and the Purposes of Law: Judicial Interpretation in a Natural Law Context
Jean Porter
John A. O’Brien Professor of Theology, University of Notre Dame
Commentator:
Michael J. White
Professor of Law and Professor of Philosophy, Arizona State University
Moderator:
Professor Robert Miller
12:15 p.m. - Lunch (boxed lunches served in Bartley Hall)
1:10 p.m. - Keynote Address: The Role of Catholic Faith in the Work of a Judge
Hon. Antonin Scalia
Associate Justice, Supreme Court of the United States
Introductions by Dean Mark Sargent and Professor Steve Chanenson
Moderator:
Professor Steve Chanenson
2:15 p.m. - Break
2:30 p.m. - Sovereignty and Our Supreme Court: A Holy Alliance?
Patrick McKinley Brennan
John F. Scarpa Chair in Catholic Legal Studies, Villanova University School of Law
Commentator:
Paulina Ochoa Espejo
Assistant Professor of Political Science, Yale University
Moderator:
Professor and Associate Dean Doris Brogan
3:30 p.m. - Charisma and the Foundations of Judicial Authority
Paul Kahn
Ralph R. Winner Professor of Law and the Humanities and Director, Orville H. Schell, Jr., Center for International Human Rights
Commentator:
Penelope Pether
Professor of Law, Villanova University School of Law
Moderator:
Professor Tiffany Graham
4:30 p.m. - End
4:45 p.m. - Mass, St. Thomas of Villanova Church
Friday, August 10, 2007
I recently had a chance to begin -- and I'm only about a quarter of the way through the almost 550 pages of -- Walter F. Murphy's Constitutional Democracy: Creating and Maintaining a Just Political Order (Johns Hopkins, 2007). Mary Ann Glendon describes the book as a "masterpiece," and I have every reason to believe that she is, as so often happens, spot on. The argument of the first part of the book is developed through an imagined colloquy among a group of select individuals whose task it is to draft a constitution for a nation that is just emerging from a phase of rule by a tyrannical junta. Sometimes the literary device rankles a little, but on the whole I think it's a smashing success, especially as it allows the "voice" of the lefty Jesuit in the group to emerge and make a series of impressions. This "worker priest," Fr. Atilla Gregorian SJ, wants the constitution to reflect and advert to "the dignity of the human person." Many others in the drafting group suspect that there's no there there in said "dignity." Still others are of the view that there's way too much that's spooky in the vaunted "dignity."
As I say, I'm not nearly done with the book, but I hasten to recommend it, especially to those of us who frequently find ourselves talking up "the dignity of the human person" for purposes of shaping thinking about law and society. Sometimes Murphy gives at least this reader reason to resist Gregorian's rhetoric; at other times Gregorian seems to say exactly what needs saying. Even the popes who can't be suspected of being crypto-Kantians (e.g., Pius XII) spoke frequently and passionately of the dignity of the human person, but of course they did so with the benefit of a metaphysical scaffolding that it's not clear Fr. Gregorian would affirm.
Wednesday, May 16, 2007
Brian Tamanaha says he and I agree about Aquinas. I'm not sure we do, but I'll leave that for another day. Brian's account places an emphasis on coercion that I think occludes what, on Aquinas's account, makes law obligatory.
Now, to the matter at hand. I'll stipulate that Brian is right that the rule of law requires that "lawyers for the Justice Department must bind themselves by their own will to abide by and enforce the law." Brian's next claim, in the immediately succeeding sentence, is that the "systematic ideological vetting in the hiring of Justice Department lawyers poses a serious threat to this crucial aspect of the rule of law." But which "crucial aspect" is he referring to? The question, which I take to call for an empirical answer, is whether those who enter after a process of "systematic ideological vetting" are in fact, or are likely to be, successful in "bind[ing]" themselves to abide by and enforce the law. If the answer be in the affirmative, then I'm not sure what the worry is with respect to "filling the Department with lawyers who will apply the law in a manner that furthers ideological goals." If the people getting hired at Justice don't follow the law, that's not a threat to the rule of law, that's a failure of the rule of law. If the people getting hired at Justice are following the law, then, pro tanto, the rule of law is secure.
Now, let me be clear. First, I do think that prudence dictates against some of what I understand the DOJ to have been up to with respect to hiring. But I wouldn't leap, as Brian seems to, to the worry that the rule of law is threatened when people are given preference for their political views and commitments. There may be things to object to in the process that the DOJ has apparently recently used, but I don't think "the rule of law" is is lost or on the ropes until you can say that people aren't following -- or, perhaps, are about not to follow -- the law. To acknowledge the elephant in the room, Article III judges get nominated in part because of their political and moral commitments. The question going forward is always whether, as an empirical matter, each individual judge is following the law. Why is the issue importantly different at DOJ? Second, with respect to what officials at DOJ do in the interstices of or the open-textured spans of "the law," Congress could seek to affect it by requiring that appointments by politically balanced, on the model of the "independent commissions." But, becasue Congress hasn't sought to do so, and because so far forth the evidence seems to be that the appointees are following the law and interpreting it in a way that is consistent with our traditions of interpretation, there is no loss of, nor a demonstrable threat to, the rule of law. Again, I'm not saying the "screening" we're hearing about was prudent. In the end, I suspect Brian of trying to get too much from "the rule of law," perhaps in part because objections that sound in prudence may require a moral or political theory that is contestable in a way that Brian thinks "the rule of law" is not. The "rule of law" seems a strange weapon with which to attack "ideological bias" that has not been demonstrated to lead to lawlessness or unlawfulness.
Tuesday, May 15, 2007
Rob beat me to Tamanaha over at Balkanization, but now I have even more say, though I'll try to keep it brief. As far as the relevant context goes, Aquinas is not the ally against the Bush administration that Tamanaha makes him out to be. Aquinas does think that the prince/legislator (the English Dominicans' translation of the Summa theologiae that Tamanaha relies on, the standard translation, renders the Latin word "princeps" and the like as "sovereign," but this is a seriously misleading mistranslation, a function, I'm afraid, of the time at which the learned translators were at work), should follow the law, even though no one can legally coerce him to do so. But does the screening of Justice Department applicants entail a disregard of, or a call to disobey, the law? As such, no. Tamanaha's recent work has worried about the pouring of ideological agendas into the skins of the rule of law, but the question about the Justice employees who get appointed is simply whether in their work they are following the laws set down. The screening may raise people's worries that they'll be incapable of following the law that has been laid down, but that's another matter.
One should add, of course, that Aquinas's point in q. 96 art. 5, from which Tamanaha quotes, is not that the princeps cannot change the law or act beside the letter of it. At the end of the reply to obj. 3 of 96.5, Aquinas writes "Again the princeps is above the law, in so far as, when it is expedient, he can change the law, and dispense in it according to time and place." In the next question, 96.6, Aquinas further spells out the conditions under which someone who is under the law can act beside the letter of that law. The permission, shaped and limited by the law's necessary commitment to the common good, is impressive, especially from the perspective of the flat-footed textualism or originalism that some conservatives and others insist is the remedy for our cultural woes.
Tamanaha writes that "the ultimate guarantor of the rule of law is the power to threaten and exert violence." Aquinas does not agree. On Aquinas's account, the reasonableness of the law is a necessary condition of its being binding, and its reasonableness comes from, among other sources, its being in the interest of the common good. This alignment with and contribution to the common good, this "reasonableness," is, of course, no part of the account of Hobbes, whom Tamanaha identifies as Aquinas's ally. For Aquinas, what we might call "the rule of law" occurs focally in the the prince's or his subjects' free conformity to the reasonable dictate of the prince, that is, the person charged with the common good of the community. When force -- even lawful force -- has to enter, in some sense the rule of law has broken down or failed.
In sum, or so it seems to me: Vague worries about the arrival of ideology that threatens "the rule of law" are a distraction from the clean questions put by Aquinas: Are the officials operating within their grant of authority under the laws set down, that is, the reasonable ordinances put in place for the common good? The reason why we shouldn't talk about "sovereigns" in this context is that, when that portentous word is used, there's inevitably an (at least) implicit claim that one can be above the directive force of the law. On Aquinas's account, if the law be reasonable, that is, if it be a genuine law, no one is above its directive force, even if no one is in position lawfully to impose it through coercion.
Thursday, May 10, 2007
I don't believe what I wrote "certainly (sic) suggests" that "Professor Kaveny's writing" on the subject of abortion merits excommunication. But, just to dispel any doubt, I did not then, nor do I now, know of any ground that would justify the Church's declaring Professor Kaveny excommunicated. No, we're all in this together, at least for now. I've long held Cathy Kaveny in very high regard, something she, but perhaps not Eduardo, would have every reason to know. I just disagree with her from time to time, and she with me, and there's no surprise or evil in that. Concocting a reading of my post according to which I am so presumptuous as to suggest that our partner in dialogue should be excommunicated is pure silliness.
In what I wrote I linked to Pope Benedict's recent comments on the possible declaration by Mexican bishops of the latae sententiae excommunication of Mexico's elected officials who had voted to decriminalize first-trimester abortions. I did so in order to provide a cutting-edge context in which to evaluate the principle Kaveny had recently advanced in her editorial in Commonweal, and I quoted that principle (I did not give a "summary" of the editorial to which I also linked) according to which the Court "would highlight the humanity of unborn life while recognizing that secular law should not require a woman to sacrife her fundamental integrity to carry her baby to term." The part of that principle that I've now italicized is really very far from anything the Church is saying about the principles that should guide decision-making and political choices that bear on abortion. Professor Caveny seeks with the principle to acknowledge and serve simultaneously two sets of "core values." But again, "core values" is a not-so-subtle way of taking one's attention of the Church's principle, indeed that of the natural moral law, according to which it is a grave moral evil intentionally to take innocent human life. Eduardo says Kaveny "is talking about abortion to protect the health or life of the mother." Is that really all she is talking about with her concept of "secular law" that treats as "fundamental" something other than the basic principle that good is to be done and pursued and evil avoided? Kaveny suggests that her principle would be a step toward a "workable compromise." I understand the de facto need for incrementalism in undoing Roe in the immediate future, but I don't think the Church bids us have our eye on a "compromise" premised in part on the "fundamental" advanced by Kaveny.
Since I don't have any reason to believe Professor Kaveny should be excommunicated, I don't need to reach Eduardo's question about whether I'm not edging toward endangering "academic freedom." But, just to be clear about this too, let me say that I adhere to the Church's norms regarding who is fit to teach in Catholic colleges and universities. It's not really about whether "[I] would stop there." There are norms, and putatively Catholic colleges and universities should adhere to them, and they should do so in a spirit of unity and charity. Those norms, for their part, are deeply infused with and shaped by the Church's perennial judgment of the importance of scholars seeking the truth in freedom. I'm sure, though, that there are some conceptions of "academic freedom" that are out of place in Catholic places of higher learning. I suppose one might even under some circumstances have to choose between "Catholic" and "academic freedom."
Wednesday, May 9, 2007
Anyone giving serious consideration to Cathlen Kaveny's remarkable editorial on Carhart (http://www.commonwealmagazine.org/article.php3?id_article=1926) will do well to consider at the same time Pope Benedict's recent remarks on the automatic excommunication of the Mexican politicians who supported the legalization of first-trimester abortion (http://news.yahoo.com/s/ap/20070509/ap_on_re_ca/pope_mexico_1). Professor Kaveny recommends an American legal regime that "would highlight the humanity of unborn life while recognizing that secular law should not require a woman to sacrifice her fundamental physical integrity to carry her baby to term." In pondering that recommendation in the context of the Church's contrary insistence, I keep coming back to Maritain's acute observation that today "It is no longer the human which takes charge of defending the divine, but the divine which offers itself to defend the human."
Wednesday, April 25, 2007
You won't want to read the second installment of vol. 52 the Villanova Law Review that has just become available online and in print. Don't even consider glancing at the intellectual product of Villanova's first annual Scarpa Conference on Law, Politics, and Culture, the topic of which was "From John Paul II to Benedict XVI: Continuing the New Evangelization of Law, Politics, and Culture." Please don't let your curiosity lead you to our very own Rick Garnett's "Church, State, and the Practice of Love" or Amy Uelmen's ""Reconciling Evangelization and Dialogue Through Love of Neighbor." And since no one will be tempted by Cardinal Dulles's keynote address "The Indirect Mission of the Church to Politics," there's no risking in mentioning it here.
And while I'm at it, please don't mark your calendar for the next Scarpa Conference on Law, Politics, and Culture that will be held at Villanova on October 16, 2007. You certainly won't want to hear Justice Scalia, or Paul Kahn (Yale), or James Stoner (Louisiana State), or Jean Porter (Notre Dame), or Jeremy Waldron (NYU) on "The Judicial Office in Our Constitutional Democracy: Avoiding Dogmatism on a Disputed Question."
