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.

Wednesday, September 18, 2013

Reflections from the City of God: On Excellence in the Two Cities

Excudent alii spirantia mollius aera,                                                                              

(credo equidem), vivos ducent de marmore voltus;                                            

orabunt causas melius, caelique meatus                                                              

describent radio et surgentia sidera dicent:

tu regere imperio populous, Romane, memento                                                          

(hae tibi erunt artes) pacique imponere morem,                                                      

parcere subiectis et debellare superbos.

When I was a kid, these lines were an ending of sorts. We read them in 11th grade Latin, at year's end, Publius Vergilius Maro and they represented the culmination of the first half of the Aeneid. True, several of us continued on to read Books 7-12 in our senior year, but the second half is something of a long walk down the hill (and I always had a soft spot for Turnus and couldn't get too excited about his defeat). It's this section of Book VI (lines 847-853)--in which the ghost of father Anchises discloses to Aeneas what the special arts and excellences of the Roman are to be--that was the peak moment. It was satisfying to us not only as an explanation for all of the trouble that the hero of the story seemed to be taking and enduring but also as an inspiring affirmation of political virtue and the excellence of civic governance writ large: to impose the habit of peace, to spare (or, one might say, to tolerate) the subjugated, and to tame the proud!

It is really quite unnecessary to study "politics" as a discrete subject in high school, or even in college, since the study of abstract political ideologies is often simply a truncated version of the study of the political tradition and heritage of a particular society. And if you want to learn about the "political theory" of an empire that continued to think itself deeply committed to its republican past, you can find it all in Vergil. Other people, he says, might make pretty arts and crafts, but this is what you want from your politics.

These lines came back to me as I read some of the Preface of Book I of the City of God, in which Augustine Augustine notes the obstacles that he faces in laying out the aim of the work.

For I am aware what ability is requisite to persuade the proud how great is the virtue of humility, which raises us, not by a quite human arrogance, but by a divine grace, above all earthly dignities that totter on this shifting scene. For the King and Founder of this city of which we speak, has in Scripture uttered to His people a dictum of the divine law in these words: "God resisteth the proud but giveth grace unto the humble." But this, which is God's prerogative, the inflated ambition of a proud spirit also affects, and dearly loves that this be numbered among its attributes, to "Show pity to the humbled soul,/ And crush the sons of pride." And therefore, as the plan of this work we have undertaken requires, and as the occasion offers, we must speak also of the earthly city, which, though it be mistress of the nations, is itself ruled by its lust of rule.

Book I is, in fact, loaded with Vergil; Vergil's poetry itself illustrates the excellence of the City of Man. Later in Book I, it is almost as if Augustine is speaking to the hundreds upon hundreds of generations of young Latin students to come: "There is Vergil, who is read by boys, in order that this great poet, this most famous and approved of all poets, may impregnate their virgin minds, and may not readily be forgotten by them," after which he proceeds to engage in some close textual reading of and interlocution with Vergil. All of this, of course, is meant to counter the claims of those who argued that the Romans got what was coming to them by abandoning the Roman gods and embracing Christ (those that embraced him, that is). And as for "parcere subiectis," Augustine argues that, in fact, the Romans did no such thing. To the contrary: "[A]mong so many and great cities which they have stormed, taken, and overthrown for the extension of their dominion, let us be told what temples they were accustomed to exempt, so that whoever took refuge in them was free." I.6. In this book, then, Augustine punctures the Vergilian rhetoric of the Augustan age extremely effectively--"[a]ll the spoiling, then, which Rome was exposed to in the recent calamity--all the slaughter, plundering, burning, and misery--was the result of the [Roman] custom of war." I.7. What was novel, and what showed itself in the comparatively gentle behavior of the barbarians, was truly to spare the subjugated who (whether godly or not, whether deserving--by man's lights--or not) sought sanctuary in the Christian "temples."

The eminent Augustine scholar R.A. Markus puts it this way in his magisterial volume, Saeculum: History and Society in the Theology of St. Augustine:

In Augustine's mature view the radical vice of Greek philosophy as of Roman political ideology was the belief in the possibility...of perfection through the polis or the civitas. 'God resists the proud, but to the humble He giveth grace': the scriptural sentence quoted at the opening of the City of God was to Augustine's mind the most fundamental comment on classical pretensions to human self-determination, as expressed in Vergil's line, quoted in dramatic juxtaposition, on the historic mission of Rome....Here is Augustine's final answer to the illusion of a teleiosis through rational and human means; and it is the more poignant for being a repudiation of a heritage which, as we have seen, had some power over his mind in his youth. (84)

And not only over Augustine's mind! The political program, and the power, of Rome is beguiling and attractive indeed. It holds enduring appeal to young people--as it did for me and my friends in high school, and as it still does. There are, I suppose, several reasons that one reads Vergil rather than Augustine in high school (to the extent that either is read at all in high school). But one of them, perhaps the most important, is that the excellence of the City of Man is so easy and approachable (as texts millennia old go), while the excellence of the City of God is so distant and so difficult. The excellence of humility is so much harder to appreciate and embrace than the excellence of dominion--especially, it seems to me, for the young. The excellence of the City of God holds little of the immediate and prepossessing appeal of the splendors of Rome.

But perhaps a little Augustine in the relatively early educational years, as a counterpoint to Vergil, might cast politics in a mellower light for the rising generations.

Monday, September 16, 2013

Radio Program on God and Government

Here is a radio program where I recently appeared as a guest called "Interfaith Voices." The program is organizing a substantial series for the next several months on "God and Government" whose aim is to explore church-state relations in different countries.

This episode kicks the series off and considers the United States and Canada. There was a broad spectrum of views represented: the other guests are Professors Jacques Berlinerblau (Jewish Civilization, Georgetown) and Lori Beaman (Classics and Religious Studies, University of Ottawa). The editing process cut out some of the more interesting disagreements, but what remains gives a strong flavor of the discussion.

Friday, September 13, 2013

Reflections from the City of God: On the Dilemmas of the Judge

This week's selection from the City of God comes again from Book XIX, this time from Chapter 6. The City of Men context is the broad theme elaborated in Chapter 4--that though the virtues of this life are "its best and most useful possessions," they are in the end only constant reminders of the miseries of this life and cannot be the final good: "Salvation, such as it shall be in the world to come, shall itself be our final happiness." The immediate chapters that follow Chapter 4 represent particular ruminations on and applications of the theme. Chapter 6 considers "the error of human judgments when the truth is hidden."

The problem for judges in the earthly city is that they are required to pass judgment but that they "cannot discern the consciences of those at their bar." Their judgments are therefore "melancholy and lamentable." All the more so because judges are driven to use coercive methods to compensate for their ignorance of the truth, which in turn drives the innocent to confess falsely, "[a]nd when he has been condemned and put to death the judge is still in ignorance whether he has put to death an innocent or a guilty person....[C]onsequently he has both tortured an innocent man to discover his innocence, and has put him to death without discovering it." Augustine paints a dark picture of justice in the earthly city in this chapter.

The problem, moreover, is not one of the specific coercive methods used by the judicial systems in particular earthly cities (though several sources note Augustine's opposition in several letters to torture and capital punishment). As Oliver O'Donovan puts it: "We shall miss the point of this if we confine ourselves to observations about the barbarous laws of evidence which obtained in the late empire....For [Augustine] it is a universal problem about judicial process everywhere. It is a guess as to which party is lying and which telling the truth, and any inquisitorial process adopted to reduce the element of hazard may backfire and defeat its own ends." Oliver O'Donovan, "The Political Thought of City of God 19," in Bonds of Imperfection: Christian Politics, Past and Present 70 (2003).  An interesting feature of Augustine's discussion about torture in this context is that it emphasizes consequentialist considerations--the trouble with torture that Augustine targets here is that it does not assist, and in fact may be counterproductive, in ascertaining the truth. See Henry Chadwick, Augustine of Hippo: A Life 140 (2009). And yet, the problem of the elusiveness of truth is not resolved by a refusal to give judgment. Thus arises the dilemma: the necessity to give judgement in the earthly city together with the knowledge that ignorance of the truth will infect the judgment.

I was especially struck by Augustine's focus in the very last part of this selection not on the substance of the judgment, or on the methods to be used in judging, but on the mood or cast of mind that the dilemmas of the judge ought to inspire in him ("wise" is not an honorific here). Augustine is interested in what the miseries of judgment do for the character of the judge--and what they ought to do--as he contemplates the fulfillment of his duties (his "necessities") in the earthly city:

If such darkness shrouds social life, will a wise judge take his seat on the bench or no? Beyond question he will. For human society, which he thinks it a wickedness to abandon, constrains him and compels him to this duty. And he thinks it no wickedness that innocent witnesses are tortured regarding the crimes of which other men are accused; or that the accused are put to the torture, so that they are often overcome with anguish, and, though innocent, make false confessions regarding themselves, and are punished; or that, though they be not condemned to die, they often die during, or in consequence of, the torture; or that sometimes the accusers, who perhaps have been prompted by a desire to benefit society by bringing criminals to justice, are themselves condemned through the ignorance of the judge, because they are unable to prove the truth of their accusations though they are true, and because the witnesses lie, and the accused endures the torture without being moved to confession. These numerous and important evils he does not consider sins; for the wise judge does these things, not with any intention of doing harm, but because his ignorance compels him, and because human society claims him as a judge. But though we therefore acquit the judge of malice, we must nonetheless condemn human life as miserable. And if he is compelled to torture and punish the innocent because his office and his ignorance constrain him, is he a happy as well as a guiltless man? Surely it were proof of more profound considerateness and finer feeling were he to recognize the misery of these necessities, and shrink from his own implication in that misery; and had he any piety about him, he would cry to God: "From my necessities deliver Thou me."

Delahunty's Series on Tocqueville and Religion

I've noted some of Professor Robert Delahunty's superb posts on Tocqueville before, but now that he has completed his series, I thought to aggregate them all in one place. For those with an interest in Tocqueville's thought, they are well worth exploring:

Wednesday, September 11, 2013

Justice Scalia Praises the Separation of Church and State

Justice Scalia recently gave some remarks at the Lanier Theological Library in Houston, Texas, remarks that have been reported and commented on in several places. Ostensibly the speech was about whether capitalism or socialism is more consistent with Christian virtue.

But I was there and heard the lecture in its entirety; and it sounded to me like Justice Scalia lavished praise on the separation of church and state. One consistent theme repeated several times by the Justice--at both the beginning and the end of the talk--was the patent unimportance of the titular subject. For the Christian, Justice Scalia said, the choice of one's political ideology (the choice between capitalism and socialism, for example) is about as consequential as the choice of one's toothpaste. One does not choose a political ideology either to become a better Christian or to inspire greater Christian virtue in others, and certainly not to inspire Christian virtue in government. Christ was not interested in government or its machinations. These are all issues that ought to be small beer for the Christian. 

The lecture was cleverly keyed to sound pleasingly evangelical notes. When you're in Texas, after all, you'd better swear you hate the Redskins, and Justice Scalia knew well enough to say so. The Justice emphasized a familiar and important set of ideas that has long supported one hoary strain of the American separation of church and state with deep Christian roots: that the cities of God and man are and forever will remain apart. 

After which, in response to an audience question about the area of law done greatest disservice by the Supreme Court, he thought for a moment, and replied, "The Establishment Clause." Christian law and politics watchers, take note.

Event on The Tragedy of Religious Freedom in NYC

For those of our readers close by Manhattan, I hope you might consider joining me on the evening of September 25 at the Harvard Club of New York City (27 W. 44th Street) for a discussion of The Tragedy of Religious Freedom. The event begins at 8:00 pm. My friend and colleague, Mark Movsesian, will be the master of ceremonies.

Please stop by and say hello.

Sunday, September 8, 2013

Bartrum Reviews "The Tragedy of Religious Freedom"

Ian Bartrum (UNLV Law) has posted a very generous review of The Tragedy of Religious Freedom (forthcoming in the Journal of Church and State). I wish I could say that I disagreed with the sharp and smart criticisms of the book in Ian's review; but actually, I found myself quite in agreement with them. Still, I hope you will forgive me for quoting from a not-so-critical section:

DeGirolami's is a thoughtful and sophisticated meditation on the protean relationship between law and faith in a society committed to religious freedom. His intellectual and cultural influences are broad and rewarding; his style is rich and accessible; and his critique of both theoretical foundationalism and skepticism is profound and compelling. The Tragedy of Religious Freedom is an important book that will undoubtedly influence and enrich this discussion for years to come. 

Friday, September 6, 2013

Reflections from the City of God: On the Miseries of Just Wars

I am blessed to be on sabbatical this semester. In addition to beginning several new writing projects, I City of Men thought it might be good to take on some meaty reading projects. One of these projects will be to read through St. Augustine’s City of God and to become familiar with some of the secondary literature related specifically to his political thought. In connection with that project, I hope to post a weekly reflection from the City of God that is relevant to our discussion at the Mirror of Justice.

I’m confident that I will say nothing original about Augustine’s political thought. Indeed, I am sure that many readers of this blog know much more about Augustine than I will learn in these few months and well beyond that. I know that several writers here know more about Augustine than I ever will. But because I have been enjoying what I have read so far, and because what I have read relates in various ways to many of the questions we consider here, and because it may be a pleasure for readers to see some of Augustine’s words again before their eyes (and a pleasure for me to re-write them), and simply for the joy that comes in replowing well-tilled fields, I thought to give it a try. Those of our readers who are Augustine scholars or otherwise knowledgeable: please let me know in the comments what secondary literature I ought to be reading (my friends on MOJ have already been generous in this respect). I am reading the Marcus Dods translation (would that I could read it through in Latin, but as Dods–writing in 1871–said, “[T]here are not a great many men nowadays who will read a work in Latin of twenty-two books”).

Here is a passage from of the famous Book XIX on the miseries of war, including of just war:

But the imperial city has endeavored to impose on subject nations not only her yoke, but her language, as a bond of peace, so that interpreters, far from being scarce, are numberless. This is true; but how many great wars, how much slaughter and bloodshed, have provided this unity! And though these are past, the end of these miseries has not yet come. For though there have never been wanting, nor are yet wanting, hostile nations beyond the empire, against whom wars have been and are waged, yet, supposing there were no such nations, the very extent of the empire itself has produced wars of a more obnoxious description–social and civil wars–and with these the whole race has been agitated, either by the actual conflict or the fear of a renewed outbreak. If I attempted to give an adequate description of these manifold disasters, these stern and lasting necessities, though I am quite unequal to the task, what limit could I set? But, say they, the wise man will wage just wars. As if he would not rather lament the necessity of just wars, if he remembers that he is a man; for if they were not just he would not wage them, and would therefore be delivered from all wars. For it is the wrongdoing of the opposing party which compels the wise man to wage just wars; and this wrongdoing, even though it gave rise to no war, would still be matter of grief to man because it is man’s wrongdoing. Let everyone, then, who thinks with pain on all these great evils, so horrible, so ruthless, acknowledge that this is misery. And if anyone either endures or thinks of them without mental pain, this is a more miserable plight still, for he thinks himself happy because he has lost human feeling.

One striking feature of this paragraph is the ubiquity of misery in all matters related to war. The misery not only of the initial wrongdoing that leads to war, and not only of war itself, but also of the waging of just war in response to (in fact, ‘compelled’ by) the existence of miserably wrongful conduct. The misery of waging war, even in a just cause, and the misery of not doing so.

Thursday, August 29, 2013

Delahunty on Tocqueville on Pantheism in America

You should not miss Robert Delahunty's most recent post exploring Alexis de Tocqueville's view that the logic of American democratic egalitarianism would eventually lead for many toward a religion of pantheism. And his prediction rings true in Ralph Waldo Emerson's transcendentalism and in Walt Whitman's poetry (I had forgotten the praise that Whitman lavishes on the stench of his own armpits). Just a small fragment of the post (but it's a treat to read it in full):

What about those democratic men and women who yield to the democratic “predisposition” and abandon Christianity? Here Tocqueville suggests that the “prevailing taste democratic nations have for general ideas” will lead them, not to the unity that some will find in Catholicism, but instead to pantheism:

Man is obsessed with the idea of unity. He seeks it in every direction; when he believes he has found it, he willingly rests in its arms. Not content with discovering that there is but one creation and one Creator in the world, he is still irritated by this primary division of things and he seeks to expand and simplify his thought by enclosing God and the universe in a single entity. If there is a philosophic system according to which things material and immaterial, visible and invisible within the world are to be considered only as the separate parts of an immense being who alone remains eternal in the continuous shift and constant change of everything which is within it, I shall have no difficulty reaching the conclusion that a similar system, although it destroys human individuality, or rather because it destroys it, will have secret attractions for men who live in a democracy.

Democracy at 521.

Tocqueville recoils from pantheism, even while admitting that it is “one of the most likely [metaphysical systems] to entice the human mind in democratic ages.” He denounces it as an idea that “naturally attracts and arrests [the] imagination [of democratic men] and nourishes their arrogance, while cosseting their laziness.” And he calls on all who are “smitten with the nobility of man” to “join forces and fight against this idea.” Id.

....

What evidence is there, we might ask, that the America of the present is tending toward pantheism?

The evidence, I believe, is not hard to find. Consider, e.g., our changing attitudes toward the environment. By this I mean, not primarily our concerns with pollution or resource depletion, but rather the much more fundamental changes in the ways we have come to think about man’s place in nature.

Ever since the Norwegian philosopher Arne Naess baptized it with a name in 1973, the “deep ecology” movement has exerted an influence on contemporary culture. See Arne Naess, The Shallow and the Deep, Long-Range Ecology Movement. A Summary, 16 Inquiry 95 (1973). The (originally) seven points in which Naess summed up “deep ecology” included discernibly egalitarian and pantheistic elements. Naess advocated the abandonment of “the man-in-the-environment image” and its replacement by “the relational, total-field image,” in which living organisms would be seen as “knots in the biospherical net.” He also urged “biospherical egalitarianism,” rejecting “anthropocentrism” in favor of “the equal right to live and blossom” for every form of life....Others have seen intimations of deep ecology in the works of such major thinkers as Martin Heidegger and the seventeenth century pantheist Baruch Spinoza.

Of course one might dismiss the deep ecology movement as culturally marginal and uninfluential. But do we not also see the signs of a kind of “practical pantheism” everywhere about us? Consider, e.g., our changing dietary habits (the preference for organic foods) or travel interests (eco-tourism). Let me conclude this essay by using what seems to me a particularly telling example: our changing burial practices.

Burial practices are especially revealing, I submit, because they indicate how a society implicitly thinks of human life, of death, of collective memory and individual fame, of an after-life, and of the relationship of the human body to the earth.

In his beautiful and moving book Last Landscapes: The Architecture of the Cemetery in the West (2003), Ken Warpole describes the recent, but growing, desire for “natural burial” in Britain and northern Europe. Proponents of natural burial, Warpole writes, “seek to create cemeteries that meld into the uncultivated landscape as quickly as possible, returning to a ‘state of nature’ as if the human presence on earth had never been.” At 191. And this, he rightly says, is “a presumption of astonishing radicalism”:

For the past 2,000 years at least, one of the principal functions of burial and funerary ritual – from the inscriptions and epitaphs in the Roman catacombs through to the cult of the headstone in the era of the Enlightenment – has been to leave, where possible, a permanent record for posterity of each individual life lived. Natural burial denies this function, at least with regard to any kind of design or inscription at the place of interment, though other forms of commemoration or record may take place elsewhere. This suggests that the strong desire to ‘be at one with nature’ and to leave no sign of burial behind is an unexpected and late-modern phenomenon, at least within Western culture, part of a new and unique kind of ecological consciousness, rather than a trace element of pre-historic or pagan belief systems.

Id.

Natural burial is philosophical pantheism woven deeply into the fabric and habits of a society. It expresses that society’s view of the inconsequentiality of the individual human being, and of its unconcern with the perpetuation of its own collective memory and identity. It is the handiwork of a society that sees human existence as merely a momentary perturbation of the natural order, an irritation on the earth’s surface. Ironically, the attitude of “letting be” that this kind of society displays in relation to nature is merely the photographic negative of the technological rationality that the deep ecology movement condemns as exploitative. If Tocqueville is to be believed, this is the type of society towards which we are drifting. Little wonder that he calls on all who believe in the “nobility” of man to oppose it.

Wednesday, August 28, 2013

Josef Pieper's Allegory of the Black Bread

Josef Pieper was a German philosopher of the post-war period who worked in the Thomistic Pieper philosophical tradition. Perhaps his best known and most widely read essay (Pieper often wrote relatively short and accessible essays rather than longer-form books) is Leisure, The Basis of Culture (1948), in which Pieper argued that the disposition toward leisure allows us more fully to take part in and enjoy the world. Leisure in Pieper’s account did not mean any cessation of work or “down-time” in which one could be idle for the instrumental purpose of doing more effective work later. Instead, leisure was a condition of the mind that allowed a person a certain silence in which he could perceive and then celebrate the splendors of creation.

I am now reading Pieper’s essay, Tradition: Concept and Claim (originally published in 1970, but Tradition Concept and Claim developed from a lecture given in 1957). In it, Pieper discusses the idea of tradition in a distinctively sacred key. For Pieper, by far the most important variety of tradition is “sacred” tradition, because the reasons to value tradition have not so much to do with a tradition’s being handed down as with the source of the tradition. Those that handed down the tradition as an initial matter were closest to the divine source of the tradition, and it is for that reason that the tradition has value.

Pieper’s is a bracing account of tradition because it differs so completely from the ways in which tradition generally is conceived and discussed today, in law and elsewhere, including by supporters of the influence and importance of tradition in these spheres. He allows that there are “secular” traditions but these are not really at all the traditions in which he is interested; secular traditions are instrumentally valuable (they enable life to “run along with less friction”) but not intrinsically valuable.

An interesting problem arises for Pieper when there is an admixture of sacred and secular traditions–or, Black Bread more precisely, when people employ a variety of secular traditions in order better to preserve, uphold, and transmit the sacred tradition. In responding to the problem, Pieper offers an allegory–the allegory of the black bread:

In my grandparents’ day, it was a settled custom in peasant households that the father had to slice the bread for suppertime. If he was beginning to cut a new loaf, he made the sign of the cross over it with the knife. It was done, as I saw many times as a child, almost casually, even furtively, but it was never omitted. Things have changed since then. We no longer bake those enormous loaves of black bread, which really needed a grown man to master them. Now we have machines to slice the bread, and most of the time the bread comes from the store or factory already sliced. In a word, this beautiful tradition too has passed away. It does not take much imagination to see how many themes are present here for a truly pessimistic cultural critique (“machines replacing humans,” “urbanization,” “the collapse of the family,” and so forth).

Nevertheless, we can ask whether this kind of change is simply deplorable. Is it legitimate to speak in a more or less precise sense of a “loss of tradition” here? The answer to this question is made more complicated by the fact that here the purely technical process was clearly linked with elements of the sacred tradition. It seems to me that we could really talk about a “loss of tradition” and a “break with tradition” if the change affected the family’s order, and most of all what was meant by the holy sign of the cross; that is, such language is appropriate when that which is lost stands in more or less direct connection with the traditum, which alone must be unconditionally preserved. It is common for the essence of what must be preserved to become overgrown by and entangled with the concrete forms of historical life, and a change in the outer may very well threaten the pure preservation of the essence, so that anyone who carelessly discards or makes light of the “outer” traditions commits a dangerous act. A student of ethnology once told me that in a group that was driven out of its homeland, religious commitment might possibly grow looser to the same degree that the group moves away from baking its rolls in a certain way. Of course, the question remains open what is the cause here and what the effect, and whether we are not dealing with an extremely complex total process.

Tradition: Concept and Claim, 40.