I am pleased to announce that a book I have co-edited with Bob Cochran, Christianity and Private Law, has been published by Routledge in its Law and Religion series and commissioned by the Center for the Study of Law and Religion at Emory. The book leads off with a Foreword from John Witte, an Introduction from Bob Cochran and me, and survey chapters by James Gordley and Brent Strawn. The rest of the book engages property, contracts, and torts from a range of theologically-informed views. In the torts section, Jeff Pojanowski and I have a chapter on "The Moral of Torts" on what a natural law perspective might bring to some debates in contemporary tort theory. Below are an excerpt from John Witte's Foreword and the Table of Contents.
“Private law” is a common phrase for Europeans who readily divide the legal world into public, private, penal, and procedural law categories, building in part on ancient Roman law, medieval canon law, and modern civil law. “Private law” is a less common term for Anglo-American common lawyers. They are more familiar with several discrete legal subjects that Europeans gather under the canopy of private law – contracts, property, and torts at the center of the canopy, associational law, family law, testamentary law, civil procedure, remedies, and other topics nearer the periphery. In both civil law and common law lands, private law focuses on the voluntary and involuntary legal relationships between private parties, whether individuals or private groups. The laws of the state – sometimes the laws of other non-state associations, too – facilitate and support those private relationships, articulate and vindicate interests and expectations that emerge from them, and offer remedies for harms that result from misfeasance, non-feasance, or breach of duty by another. The editors and several chapter authors do a fine job defining and defending “private law” as a category, and drawing interesting relationships between contracts, torts, and property which are the main subjects treated in these pages.
“Christianity” comprises all manner of Christian ideas and institutions, norms and habits that are shaped by the familiar quadrilateral of Scripture, tradition, reason, and experience. Distinct Catholic, Calvinist, Lutheran, Anglican, Anabaptist, and Evangelical voices, both historical and contemporary, come through in these pages, as does the powerful new Jewish voice of Michael Helfand. The authors variously trace, describe, interpret, and critique the discrete contracts, property, and torts topics assigned to them. Opening chapters in each of the four sections are devoted to biblical and traditional Christian teachings. They underscore the depth, nuance, and complexity of Christian engagement with these fundamental private legal relationships. Constructive and critical chapters later in each section highlight and illustrate the enduring value of these traditional Christian teachings for addressing discrete modern private law questions. At the heart of many of these Christian reflections on torts, property, and contracts is the fundamental biblical question about how to love all of our neighbors – even our enemies and others who hurt us. Do we “turn the other check” to the tortfeasor? Do we give aid and comfort to the stranger in imitation of the Good Samaritan? Do we give our “second coat” to the thief who has stolen our first? How do we responsibly acquire and use, have and hold, share and steward our property? How do we balance freedom and fairness in contract? It is just price or just market price that sets the bargain? Do we sue, arbitrate, or mediate our private conflicts, given the biblical injunction to “Go tell it to the church”? And how do we judge and reason through the private law conflicts in a way that balances justice and mercy, rule and equity, principle and prudence? These and many other questions have inspired centuries of deep thought by Christian jurists and judges who have variously drawn on biblical, theological, jurisprudential, historical, and natural law arguments to work out their legal systems. That rich world of Christian perspectives on private law is nicely illustrated in these authoritative but accessible chapters that will edify novices and experts alike.
Table of Contents
- Introduction
- John Witte, Jr. (Emory) – Foreword
- The Editors – Introduction
- James R. Gordley (Tulane) - Christian Origins of Private Law
- Brent A. Strawn (Duke) - Biblical Understandings of Private Law
- Property
- David W. Opderbeck (Seton Hall) - Christian Thought and Property Law
- William S. Brewbaker III (Alabama) - Augustinian Property
- Richard H. Helmholz (Chicago) - Religion and English Property Law: 1500-1700
- Adam J. MacLeod (Faulkner) – Property and Practical Reason
- Paula A. Franzese and Angela C. Carmella (Seton Hall) – Housing and hope: private property and Catholic social teaching
- Contracts
- Wim Decock (KU Leuven, Belgium) - Contract Law in Early Modern Scholasticism
- David S. Caudill (Villanova) - Private Law in Christian Perspective: The Example of Dooyeweerd on Contracts
- Scott Pryor (Campbell) - Destabilizing Contract: A Christian Argument For Revitalizing Unconscionability
- Val D. Ricks (South Texas) – Christianity, Freedom, and the Doctrine of Consideration
- Michael A. Helfand (Pepperdine) - Privatization and Pluralism in Dispute Resolution: Promoting Religious Values through Contract
- Torts
- Michael P. Moreland (Villanova) and Jeffrey A. Pojanowski (Notre Dame) – The Moral of Torts
- David F. Partlett (Emory) – Christianity and Tort Duties
- Nathan B. Oman (William & Mary) – Christianity’s Quarrel with Civil Recourse Theory
- Robert F. Cochran, Jr. (Pepperdine) - Tort Law and Intermediate Communities: Catholic and Calvinist Theories
Tuesday, December 29, 2020
St. Thomas Becket was martyred at Canterbury Cathedral 850 years ago today. Here are some suggestions to mark the feast:
The McCullen Center at Villanova was pleased to co-sponsor a recent lecture for the occasion by Rowan Williams on the legacy of the conflict between Henry II and Becket for the law of church and state, and it is available here.
Some previous entries from me about Becket and Magna Carta, John Guy's 2012 biography, and G. K. Chesterton on Becket are here, here, and here.
For those interested in the historical background to the legal conflict that led to Becket's assassination, I highly recommend Anne Duggan's 2004 biography (in addition to Guy's accessible biography). More detailed coverage of the canonical and jurisdictional issues is available in papers by her late husband Charles Duggan, especially "The Significance of the Becket Dispute in the History of the English Church," Ampleforth Journal 75 (1970): 365-75 and "The Becket Dispute and the Criminous Clerks," Bulletin of the Institute of Historical Research 35 (1962): 1-28, both of which are reprinted in Canon Law in Medieval England: The Becket Dispute and Decretal Collections (London: Variorum Reprints, 1982). Finally, Beryl Smalley's The Becket Conflict and the Schools: A Study of Intellectuals in Politics in the Twelfth Century (Oxford: Basil Blackwell, 1973) is a splendid work of intellectual history and discussion of the figures advising Becket such as Herbert of Bosham and John of Salisbury.
Tuesday, October 27, 2020
I share the joy of so many of my colleagues across MOJ-world upon the confirmation of Justice Amy Coney Barrett. As those of us who know her could attest and now the country has seen, Justice Barrett is a remarkable combination of intelligence, generosity of spirit, and judicial temperament. The nation is fortunate indeed to have such a person in high office.
I participated recently in a podcast (available here) about Justice Barrett's confirmation hearing hosted by the National Constitution Center with Kate Shaw from Cardozo and moderated by Jeff Rosen, the President of the NCC. I was also on a webinar (available here) about the Supreme Court hosted by the Union League of Philadelphia with Michael Gerhardt from UNC-Chapel Hill, who served as a special counsel to Senator Dianne Feinstein (D-CA) for the confirmation hearing.
One last note about the confirmation process over the past few weeks and civil discourse. Notwithstanding the efforts of some to attack Justice Barrett personally and reprise the confirmation hearing for her nomination to the Seventh Circuit, Senate Democrats focused their opposition to Justice Barrett on the forthcoming case about the Affordable Care Act—figuring (probably correctly) that a big culture war fight over Justice Barrett's faith might be catnip for the progressive left but politically detrimental for Democrats. And while opposition to Justice Barrett’s confirmation on the basis of the ACA case is legally fatuous, it at least had the marginal benefit of highlighting differences in judicial philosophy and the separation of powers between Congress and the courts.
Friday, September 25, 2020
That's the title of a piece I've written (here) for National Review Online rebutting some of the more egregious arguments in this piece by Massimo Faggioli. The introduction:
My Villanova University colleague Massimo Faggioli has an online contribution at Politico about Judge Amy Coney Barrett arguing that as “a Catholic scholar” he thinks it is fine “to ask questions about Barrett’s religious beliefs.” Along the way, he sets up and knocks down a series of strawman arguments, engages in pernicious dual-loyalty arguments that are a longstanding staple of anti-Catholic (and anti-Semitic) bigotry in American public life, and asserts gratuitously that “Amy Coney Barrett is not Catholic like John F. Kennedy was Catholic.”
Thursday, September 17, 2020
Here is a reprise of a post of mine from a few years ago about St. Robert Bellarmine on his memorial day, including a mention of the striking fact that Thomas Hobbes encountered Bellarmine from afar in Rome in 1614:
A few things for today's Memorial of Saint Robert Bellarmine (1542-1621), the Counter-Reformation Jesuit cardinal and one of the great political theorists in the Catholic tradition:
Pope Benedict XVI's reflection on Bellarmine's legacy as a doctor of the Church is available here.
My friend Matthew Rose published a brilliant paper on Hobbes and Bellarmine in the Journal of Moral Theology over the summer (available here at page 43). A bit from that:
In the pope’s private chapel on All Saints Eve in 1614, an elderly Robert Bellarmine joined a group of fellow cardinals and Pope Paul V for Vespers. At the time an advisor to the Sacred Congregation of the Universal Inquisition, Bellarmine could not have known he was being closely watched by a visitor, then in his late twenties, who would go on to compose the most important political treatise in the English language. The tutor to William Cavendish seems to have made a special point of bringing his pupil to see the Cardinal, whom his travel journals describe as a “little, lean old man” distinguished for his “rank” and “learning.”
Some thirty-five years later Thomas Hobbes would complete his observations of Bellarmine, granting him the distinction of being the only modern author identified by name in Leviathan.
….
Hobbes’s attack on Bellarmine is arguably the most mature expression of a debate between temporal and spiritual authority that had grown steadily in sophistication since the eleventh century. In the pages of Leviathan, it can for the first time be fairly described as a debate between the church and the fully modern state. Its most interesting feature is that, unlike previous iterations, it is not fundamentally about rival jurisdictions. Hobbes instead challenges Bellarmine with a rival account of Christianity itself, one that aims to show how classical forms of Christian theology need to be reformed by enlightened modes of thought. Hobbes argues that the pope’s “indirect power”—his alleged spiritual authority over temporal matters that involve man’s supernatural end—reflects a defective understanding of both revelation and reason.
Matthew Rose, "Hobbes contra Bellarmine," 4 Journal of Moral Theology 43 (2015), at 43, 45 (citations omitted).
And then this appreciation (qualified a bit later) from John Courtney Murray, SJ writing in Theological Studies:
An appreciation of Bellarmine's political theology must needs be generous; here it may also be brief. His defense of the permanent and absolute principles on which that theology rests was brilliant and effective. The essence of the "common cause" that he defended was, of course, the distinction of the two powers. Bellarmine gave it a newly luminous statement by his emphasis on the purely spiritual power of the Church, and by his elaboration of Thomistic political philosophy. In this respect he effected a doctrinal advance within the Church herself, by finally disposing of the confusions and exaggerations of the hierocrats. Moreover, out of this doctrinal synthesis, by analysis of its terms, he drew a newly effective statement of the second great principle that is part of the Catholic "common cause"; I mean the primacy of the spiritual power and the subordination of the temporal power. Here he did a service not only to the Church but to the spiritual freedom of mankind, in that he set a stern barrier to the tyrannical pretensions of royal absolutism. His doctrine shattered all three elements of the theory of "divine right": the exclusive rightness of the monarchical form of government, the belief in an individual monarch's inalienable right to govern, possessed independently of human agency, and the assertion of the irresponsibility of the king—his absoluteness. Here was a political as well as a theological achievement of a high order.
"St. Robert Bellarmine on the Indirect Power," 9 Theological Studies 491 (1948), at 532.
Tuesday, July 14, 2020
It's freedom of the church month (or year!) here at Mirror of Justice. I have a piece today on the First Things web site, "Defending the Freedom of the Church," discussing the church autonomy principle in Our Lady of Guadalupe v. Morrissey-Berru, the institutional religious freedom argument in Little Sisters of the Poor v. Pennsylvania, and some thoughts about the implications of the cases all by way of St. Thomas Becket, Harold Berman, John Courtney Murray, Doug Laycock, and our own Rick Garnett.
