I agree with what appear to be the points of agreement between Mark and Rick. The issue isn't just Catholics borrowing from and benefiting from "law & econ" -- it's Catholics saying in the first place that the human vocation requires Catholics to specialize in, among other things, economics, and then doing that work in economics in ways that advance the fundamental concerns Christians have for life in this world (which, apparently, has something to do to advancing to the next). From Fred Lawrence's introduction to Longeran's Macroeconomic Dynamics (at p. lxxi): "Lonergan's deeply Christian anthropology sets his approach to democracy apart from the secularism of both liberalism and socialism. He had no doubt that God is at work in human history bringing about a divine solution to the problem of moral evil. But as a theologian he also thought this supernatural solution can only be fully transformative of human history with our free cooperation in the form of human creativity. Such creativity entails understanding the economic mechanism as both independent of and subordinate to the political domain. In his classses Lonergan often expressed his dissatisfaction with social ethicists' tendency to be content with 'vague moral imperatives' instead of figuring out how moral precepts can be derived from the immanent intelligibility of economic processes. So he often asked, Where were the Christian counterparts to the 'crazy old man' Karl Marx, sitting in the British Museum voraciously reading and relentlessly studying about political economy?" (I think I have some answers to that rhetorical question, and they include stonewalling). Catholics' special contribtions will include insisting that the economy serve people's true goods rather than merely satisfy their preferences.
Tuesday, December 28, 2004
In the British Museum?
Monday, December 27, 2004
Quandary Sings
I've just finished re-reading Steve Smith's Law's Quandary, and I can echo the enthusiasm of John Garvey's quote on the book's dustjacket: this is one of the best studies in jurisprudence I've read in a long time. (The other blurb on the jacket is by Michael Perry, and it, too, is just in its praise). I'd say Smith has hit the real nerve of the fundamental challenge facing Catholics doing general jurisprudence today (and well as for others committing lesser included offenses). Smith's mark is the "ontological gap," an unpaid debt of our legal practice that he earlier identified and searched, in somewhat different terms, at (among other places) 40 Boston College Law Review 1041 (1999): "Believing Like a Lawyer." What he's about exposing is the metaphysics our quotidian legal practice implicitly affirms and depends on while mainstream legal theory denies the same (and so much more). With the accustation of an "ontological gap" Smith fingers all the legal reality of which (according to Swift v. Tyson, for example) what the (wise) judges decide is (exactly) evidence. Smith chases the rabbit to its hole/hat. Which of the two is it? Smith's own reaction to what he has done to the rabbit includes cautious but acute invocation of the work of U. of Michigan's professor Joseph Vining concerning how (we) practitioners of Anglo-American law can and do get beyond the (pseudo-)problem of the ontological gap. I'm less confident than some that the Aristotelian-Thomistic tradition, as cast in the Suarezian and post-Suarezian terms that come down to us in the main, is the right way to go to solve the (real) contemporary problem Smith identifies, let alone that we "must" go there. My own view is that the working out of a critical realism (a la Bernard Lonergan SJ) is necessary to reverse the ontological sting inflicted by legal realism, etc. Many of the conclusions reached from the stance of critical realism will, I think, be the same as those reached from the more traditional starting points (Lonergan was innovative in his method but traditional in his conclusions), but the analysis may/should have a better chance of succeeding/persuading in this post-Kantian world. These are deep waters, but I should venture that Smith and Vining are onto something, both problem and solution.
Wednesday, December 22, 2004
Mere Brilliance
In aid of enjoying, and perhaps benefiting from, this hiatus between spasms of interviewing and recruiting new persons for our respective law faculties, I would recommend an article by Professor James Gordley of Boalt Hall: "Mere Brilliance: The Recruitment of Law Professors in the United States," 41 The American Journal of Comparative Law 367 (1993). Gordley is among those who have convinced me that our way of deciding whom to hire is hard to rationalize. Often the results of the process are brilliant, but the method seems hard to defend. I'll leave the article to speak for itself, hoping to entice readers with this (indicative) excerpt (375-76): "The interviewer is not likely to be impressed by the candidate's scholarly interests because usually the candidate does not yet know what they are. Any impression formed of the candidate's personality is likely to be discounted. The great dean of a great American law school was once introduced to an audience as a man so brilliant he didn't need a personality, and appointments committees recognize it is often so with great individuals. Where I work, we not only would appoint someone with the temper of Beethoven, the tact of Savanarola, the warmth of Captain Kidd, and the table manners of Genghis Khan, but I have seen it happen, although we lost the candidate to another school that made a better offer."
Monday, December 20, 2004
John 11:35
I am a Californian by birth and rearing, and I hear something regrettably familiar in what is reported from California. Would that Californians and others were always as concerned with justice as they appear to be when their responsibility is to sit in judgment of a criminal and his crime. Christians should want to be prompt to do justice. Justice is only part of the picture, however. We cannot be certain that Hell enjoys a population, but if it does, God regrets this as the unavoidable consequence of the justice that attends our created human freedom. The fascinating history of exegesis of John 11:35 reveals our human resistance to acknowledge that even our Saviour was moved to weep about human death itself. If Christians have a contribution to make to public discourse and decision concerning criminal punishment and death, justice is a worthy starting point. But with the lex talionis as available to the trigger finger as it is, I wouldn't be surprised if Christians didn't offer their best witness by mourning, as Jesus did, the consequences of justice, which lead to punishment, sometimes even to death. This is not the only necessary witness, of course. This is a both-and situation, to be sure -- but what I want to hear loud and clear is that Christians engaged in punishing (sometimes unto death) are engaged in a business that the God who desires the salvation of all must sorrow over. My friend Richard Schenk OP suggests that our duties as Christians to punish do not arise without the need to regret our assignment. As Thomas Aquinas teaches in his Commentary on John: "He wept in order to reveal to us that it is not blameworthy to weep out of compassion . . . . He wept with a purpose, which was to teach us that we should weep on account of sin . . . . "
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