Over at Concurring Opinions, there is a very interesting "symposium" going on about Linda McClain and Jim Fleming's important new book, Ordered Liberty. My own first contribution, called "Mutual Adjustment as Merely Congruence Delayed" is here. Among other things, I wrote:
At the end of the day, and at the end of the book, I suppose there’s no avoiding the fact that I continue to have doubts about “constitutional liberalism” as Jim and Linda present and defend it; I continue to think that the Constitution is best regarded primarily, and more prosaically, as a mechanism for (limited-purpose and limited-reach) lawmaking, the operation of which is constrained by “negative” rights-protections; I think that the claims of families, associations, and churches to remain out-of-sync with current political majorities, or with liberalism more generally, are even stronger than Jim and Linda acknowledge; and I think that those scholars who “are preoccupied with the limited institutional capacities of courts” are, well, probably right to be so. But, it probably does not add much to this symposium simply to report my hard-headedness or general reservations.
So, a more focused thought on a particular part of the book: In Chapter 6 (“Conflicts between Liberty and Equality”), Linda and Jim use four familiar cases (Roberts, Dale, Bob Jones, and Christian Legal Society) to “illustrate the struggles between the formative projects of civil society and government and between competing visions of diversity and pluralism.” Fair enough — these case do indeed illustrate these struggles. But, at the end of the chapter, and at the end of book, I didn’t feel like I had been given or had found what I thought was promised, i.e., “a framework for resolving clashes of rights so as to promote ordered liberty and equality citizenship for all.” That is, despite the use of the term “mutual adjustment”, it did not appear to me that what was presented in the concluding pages and paragraphs of the chapter was so much a “framework” for resolving the described clashes through pluralism-appreciating “adjustment” as it was a declaration that the ultimate and to-be-desired resolution of these clashes in favor of the “liberal” position will often be facilitated by “prudential” “interim” strategies like religious exemptions. To be told by the liberal-constitutional state that — not to worry — it is willing to go slow in bringing dissenting or just different associations into congruence will not, I imagine, be very comforting to those who wonder why that state assumes it has the legitimate authority to insist on congruence now or later.
- See more at: http://www.concurringopinions.com/archives/2013/03/mutual-adjustment-as-merely-congruence-delayed.html#sthash.MbEEWvpx.dpuf
I've been thinking some about Pope Benedict's "legacy" for the MOJ "Catholic Legal Theory" project, and coming to the conclusion that identifying, exploring, engaging, and embracing this legacy are tasks beyond my capability. A little help?
In the meantime, here's a post I did, about 8 years ago, during our last sede vacante:
John Paul II and the Law: A First Try
I'm sure that many of us are reflecting on the effect that the Holy Father had on our faith and lives, and thanking God for the gift of his ministry and example. It also makes sense, here on MOJ, for us to consider what the Pope's work and thought might mean for law and legal theory. A few thoughts:
First, many of the Pope's writings focus on the importance of culture as the arena in which human persons live, thrive, and search for truth. His was not a reductionist Christianity -- one in which the choices and hopes of persons drop out of the analysis, and are replaced merely by one "dialectic" or another. Nor is Christianity merely a matter of a rightly ordered interior life. We are precious and particular, bearing the "weight of glory," but also social, relational, political -- and cultural. And, he recognized, law both shapes and is shaped by culture.
Second, the Pope returned again and again to the theme of freedom. Certainly, for lawyers -- and particularly for lawyers living and working in our constitutional democracy -- questions about the extent to which law can and should liberate (and, perhaps, liberate-by-restraining?) are appropriately on the front burner. It's fair to say that John Paul II proposed an understanding of freedom -- and of its connection with (T)ruth -- that contrasts instructively with the more libertarian, self-centered understanding that seems ascendant in our law (particularly our constitutional law) today.
Third, I imagine we will be working out for decades the implications of the Pope's proposal that the God-given dignity of the human person, and the norm of love, richly understood, should occupy center-stage in our conversations about morality -- rather than utilitarian calculations, historical movements, or supposed categorical imperatives. This proposal seems particularly powerful when it comes to the matter of religious freedom.
Finally, there is the (perhaps, at first) surprising fact that, at the end of the 20th Century, it was a mystical Pope who "stepped up" and reminded a world that had been distracted, or perhaps chastened, by reason's failures, and had embraced a excessively modest, post-modern skepticism, of the dignity and proper ends (without overlooking the limits) of reason.
There's a lot more to say, of course. I would, for what it's worth, encourage any MOJ readers who work with or advise law journals to consider commissioning essays, or even symposia, on John Paul II's jurisprudential legacy.
"An Essential Element of Strong Friendship Is Ongoing Conversation"
VATICAN CITY, FEB. 29, 2008 (Zenit.org).- Here is the address Mary Ann Glendon, the new ambassador of the United States to the Holy See, gave today upon presenting her credentials to Benedict XVI.
* * *
Your Holiness,
It is a distinct honor and pleasure to present to you my credentials as Ambassador Extraordinary and Plenipotentiary of the United States of America to the Holy See. I extend warm greetings from President George W. Bush and the American people. I am grateful to President Bush for the opportunity to represent him and my country to the Holy See.
Your Holiness, in your message for the celebration of the World Day of Peace this year, you wrote “We do not live alongside one another purely by chance; all of us are progressing along a common path as men and women, and thus as brothers and sisters.” The United States of America believes that strong alliances, friendships and international institutions enable us to advance along that path through shared efforts to promote freedom, prosperity, and peace. We recognize a privileged place in such a partnership for the Holy See whose strong moral voice resonates in the hearts of men and women throughout the world.
* * * The United States and the Holy See have collaborated in recent years on many projects to protect and enhance the dignity of the person. The United States is particularly proud of its initiatives to tackle trafficking in human beings. U.S. funded programs have provided anti-trafficking training and support to hundreds of women religious in Europe, Africa, Asia and South America. Similar programs for ...
Your Holiness, poverty, hunger and disease continue to plague too many regions of our world. For the United States, these are not only humanitarian issues but concerns that affect regional stability and security. We are striving, therefore, to provide impoverished nations with the economic and social tools that will empower them to seize hold of their own destiny. The United States is leading the struggle against global poverty with strong education initiatives and with humanitarian assistance programs like our new Millennium Challenge Account which are geared toward strengthening democracy, transparency, and the rule of law in developing nations. The United States is also in the forefront of efforts to combat global hunger. Today, more than half the world's food aid comes from the United States. In his State of the Union address, President Bush referred to an innovative proposal to provide food assistance by purchasing crops directly from farmers in the developing world, in order to build up local agriculture and help break the cycle of famine. The United States is also confronting the infectious diseases that are taking such a toll in developing nations. We are working to cut the number of malaria-related deaths in 15 African nations. Through the President’s Emergency Plan for AIDS Relief, the United States is treating 1.4 million people. We can and will bring healing and hope to many more.
Your Holiness, the United States is an instrument of hope in the world because its people are compassionate and generous. That is why we are eager to work in partnership with the Holy See to enhance the lives of all the world’s people, but in particular, those who are caught up in the despair that comes from poverty, hunger and disease. Your Holiness, in your encyclical "Spe Salvi," you reminded us that “our lives are involved with one another, through innumerable interactions they are linked together. No one lives alone.” It is our commitment to this essential human solidarity that inspires the compassionate actions of the United States in and for the human family.
Today, the NYT -- in keeping with its usual pattern of reporting and commentary regarding the Catholic Church (which, in my view, is one that involves providing and generously stocking a forum for people to complain, sometimes in an informed way, sometimes not, about the Church) -- ran this op-ed by Paul Elie (the author of a wonderful book, The Life You Save May Be Your Own), "Give Up Your Pew For Lent," which contends that "if the Pope can quit, Catholics can, too."
Because I so admired Elie's book, this piece made me sad (when a similar bit from, say, Maureen Dowd would have been just irritating). In several places, Elie purports to be speaking for "American" Catholics and about how "we" feel about "our" church, and about the many ways in which ("we" think) it has let us down. So, for example, for "us", "it has been 'all bad news, all the time' since Benedict took office in 2005." Well, this is just nonsense. Re-read Deus caritas est and Spes salvi. Watch again video from his visits to the United States, or his address in Parliament. There's been bad news and there have been challenges, for sure, and big ones -- though I imagine different Catholics would come up with different lists of what those challenges and bad news have been -- but, "all bad news, all the time?" So much so, in fact, that we're urged to "resign" -- if only for a time? I'm sure Mr. Elie is accurately reporting his own state-of-mind, and it is what it is, but it isn't mine, and it isn't all, or -- I suspect -- even most "American Catholics'".
Particularly off was Elie's citation of Flannery O'Connor -- about whom he certainly knows more than I do! -- in connection with his suggestion that taking a "time out" from the Church would "let us begin to figure out what in Catholicism we can take and what we can and ought to leave." I'm pretty sure that O'Connor would have had some tasty and tart responses for the suggestion that this "figuring out" -- depriving the pews of the honor of our presence so that we can decide what in Catholicism is worthy of a people like us -- is something that Catholics go in for.
But, putting all that aside . . . there's no avoiding the fact, it seems to me, that the Times thinks it's part of its job to keep the complaints about the Church flowing and visible (without, at the same time and in similar ways, serving as a complaint-conduit about other communities and institutions). So . . . why should any of us (liberal, conservative, whatever) support it? Even if we agree with the complaints?
In the latest issue of First Things, David Bentley Hart (an amazing writer, in my view) has a piece called "is, ought, and nature's laws" in which he rejects "the attempt in recent years by certain self-described Thomists, particularly in America, to import this [natural-law] tradition into public policy debates, but in a way amenable to modern political culture. What I have in mind is a style of thought whose proponents (names are not important) believe that compelling moral truths can be deduced from a scrupulous contemplation of the principles of cosmic and human nature, quite apart from special revelation, and within the context of the modern conceptual world. This, it seems to me, is a hopeless cause."
Hart concludes:
To put the matter very simply, belief in natural law is inseparable from the idea of nature as a realm shaped by final causes, oriented in their totality toward a single transcendent moral Good: one whose dictates cannot simply be deduced from our experience of the natural order, but must be received as an apocalyptic interruption of our ordinary explanations that nevertheless, miraculously, makes the natural order intelligible to us as a reality that opens up to what is more than natural.
There is no logically coherent way to translate that form of cosmic moral vision into the language of modern “practical reason” or of public policy debate in a secular society. Our concept of nature, in any age, is entirely dependent upon supernatural (or at least metaphysical) convictions.
R.J. Snell responds, here and here, contending -- among other things -- that Hart is attacking a "straw man", because John Finnis's account of natural law is not as Hart describes it. I'm painfully aware that I'm not close to being competent to referee this debate. If I have it right, Snell's claim is that the Finnis (et al.) account of natural law does not involve deriving, or "reading off", moral truths from "nature"; it has to do, instead, with (underived) principles of practical reason. With respect to these princples, Snell writes, "[n]either are they innate, although they are self-evident; grasping them entails 'no process of inference' but rather an 'act of non-inferential understanding.'” He adds:
Rather than Hart’s “clear commands” for “any rightly attentive intellect,” contemporary natural law requires sophisticated casuistry, which perhaps explains why moral theologians most persuaded by physicalism sometimes accuse contemporary natural law theorists of permissiveness, since natural law theory readily admits the complexities and vagaries of the agent’s intentions.
An interesting (and sobering) interview with Jonathan Last, over at National Review, about demography and his book, What To Expect When No One is Expecting, here. A bit:
[C]hildren are — as high-minded economist types will note — both public and private goods. And society can’t function very well, or for very long, without a certain number of them being born. So whatever people decide to do at the individual level, there are macro effects to consider. I would just note that it’s a little weird that certain types of people are happy to consider the macro effects of individual behavior when it comes to smoking, or drinking soda — but say that we’re not allowed to notice these things when it comes to kids. I mean, it’s only the entire future of Western civilization we’re talking about.
I am posting, with permission, an introduction -- written by Mark Latkovic (who was close to Fr. Ashley and wrote his dissertation on him) -- to Fr. Ashley's biography:
A very long life – such as the remarkable one that our
author has lived – does not guarantee that the individual has used those many
years well. Benedict M. Ashley, O.P. has
used his many years – almost a century now – to advance the Kingdom of God as a
priest philosopher-theologian. But
before turning his life to Jesus Christ (he was be baptized in 1938) and
entering the Dominican Order in the 1940s (he was ordained in 1948), Ashley was
a follower of Marx, not the Master. His
autobiography, Barefoot Journeying,
could very well be titled From Socialism
to the Savior. In these pages you
will find Ashley’s “conversion story” told in both prose and poetry. It is good that these many poetic writings
are included, because they give us great insight into the mind and heart of a
man who started off with the hope of being a novelist and poet while at the
University of Chicago in the early 1930s. . . .
Michael P. has called our attention to some suggestions from E.J. Dionne and Elmore Leonard regarding the question who should be the next pope. (Why Elmore Leonard missed the obvious choice -- Raylan Givens -- is a mystery to me.) A funny video making the rounds, from "Lutheran Satire", might enrich the conversation further.
According to this editorial in the Virginia Pilot, a bill that would prohibit (more here, at Religion Clause) public institutions, that recognize student organizations generally, to discriminate against groups that exercise their right to "determine that ordering the organization's internal affairs, selecting the organization's leaders and members, defining the organization's doctrines, and resolving the organization's disputes are in furtherance of the organization's religious or political mission and that only persons committed to that mission should conduct such activities" is itself "discriminatory" and should be rejected. According to the Pilot, "[t]axpayers should not be required to support groups that don't open membership to all classes of taxpayers. Such groups are permitted to exist, but if the groups demand purity through exclusivity, they should do so on their members' own dimes."
In my view, the expressed concern about "taxpayers" is something of a red herring. The issue here (as in the Christian Legal Society case) is one of recognition and equal access; any financial "subsidization" is almost certainly de minimis. The bigger problem with the Pilot's complaint -- as I try to explain in this paper -- is that there isn't necessarily anything wrong (there isn't necessarily any reason for "taxpayers" to worry) with groups "discriminating" or being "exclusive" in their membership.
Here is a very helpful page, which gathers a lot of information about the interesting (and, I think, troubling) case in Canada called Loyola High School and John Zucchi v. Michelle Courchesne, in her capacity as Minister of Education. The question (way-simplified) is whether Loyola High School (which is Catholic) can be required to offer the standard "Ethics and Religious Culture" classes, given that the content of those (government-mandated) classes is (Loyola claims) contrary to the school's Catholic mission and character. Prof. Douglas Farrow is on the case, and here is his expert report.
