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.

Thursday, August 8, 2013

Another Twitter Conversion

Like Rick below, I'm a latecomer to Twitter but have come around the past few months to seeing that old-fashioned blogging is giving way to it. So I'm at @MorelandMP.

Amicus Briefs in Town of Greece v. Galloway

Many of us were quick to criticize (and vindicated, I hasten to add) the Obama Administration's brief in Hosanna-Tabor v. EEOC, so I should be just as quick to praise the Solicitor General's brief in Town of Greece v. Galloway, the legislative prayer case that the Court will hear this upcoming term. The government argues that the Second Circuit's decision (per Judge Calabresi) holding unconstitutional the town's practice of legislative prayer should be reversed, though, as Lyle Denniston notes here, the SG's brief makes a narrow argument and avoids the thorny questions surrounding either the "limited public forum" doctrine or the application of the endorsement test to the case.

Those looking for a critical perspective on the endorsement test should consult this brief I have joined that was led by Gerry Bradley and aided by attorneys at Paul Hastings. Other signatories include our own Robby George, Helen Alvare, Hadley Arkes, George Dent, Matthew Franck, Mary Ann Glendon, and Steve Smith.

Orientation to the Mission of a Catholic Law School

One of our recurring topics here at MOJ is the mission of Catholic law school, and I'm always curious to see how different schools structure orientation programs so as to introduce students to the Catholic mission in a way that is informative and welcoming to 1Ls, many of whom are new to thinking about it. At Villanova, our incoming 1Ls have been given a reading (reproduced below) by Rick Garnett, which is an adaptation of some remarks Rick delivered to students at Notre Dame. Additionally, we will have an opening Mass (celebrated this year by Father Rob Hagan, OSA, the Associate Athletics Director at Villanova--and a lawyer, as it happens), welcoming remarks by the University President, Father Peter Donohue, OSA, and a panel on student resources in campus ministry with our Associate Vice President for Mission, Father Joseph Farrell, OSA.

Villanova is a Catholic and Augustinian university. The following are remarks by Richard W. Garnett, Professor of Law at the University of Notre Dame, that provide an insightful reflection on the mission of a law school at a Catholic university: 

The late Blessed Pope John Paul II observed that a Catholic university is “born from the heart of the Church.” And we who are blessed to be a part of a law school at a Catholic university like to think that our work is located, in turn, at the heart of a great Catholic university. A Catholic university is called to creativity, to exploration, to the search for truth, and to the transformation of the world. The work and mission of a Catholic law school are essential to this project. 

In our times, a great university must have a global focus – it must reach across boundaries and borders – and law is indispensable to any effort to unite citizens, leaders, scholars, and societies.

In today’s world, research and learning must be interdisciplinary – their aim must be to uncover illuminating connections – and law has always involved identifying the similar features of seemingly different cases and questions.

And, in our current context, it is crucial that the scholars and students be engaged with the world, and with what the Second Vatican Council called the “joys and the hopes”, as well as the “griefs and the anxieties,” of men and women everywhere. The study of law and the formation of lawyers are, necessarily, activities that engage us with the world, its challenges, and its opportunities. The work of a Catholic law school is both theoretical and practical; it involves critical reflection and careful application.

We believe that a great Catholic law school – that is, one that is meaningfully, distinctively, and interestingly Catholic – not only serves the needs of the profession and the community, it also plays an indispensable role in the high calling of a Catholic university.

As we see it, a Catholic law school is able to be a better law school, and to better form conscientious professionals and leaders, precisely because it is Catholic. It’s well known that law and lawyering get a criticism these days, and much of it is well deserved. Too often, law is seen as a “bag of tricks” to be manipulated by the powerful for their own ends; too often, lawyers are content to regard themselves as “hired guns” or as mere technicians; too often, the formulation of legal rules and policies seems driven simply by partisanship rather than wise and prudent consideration of real-world facts and the needs of the community.

At a Catholic law school, though, we can take comfort, and find inspiration, in the fact that our tradition has taught for centuries that law is an “ordinance of reason” and that its aim is the “common good.” Our faith provides a vision of what law, done right, is supposed to be, and really can be. It is not an exaggeration to say that the study and practice of law is elevated, for us, because we know that our human efforts to develop and implement just and efficient laws are reflections of – they participate in – the very mind of God.

Now, this might sound a bit grandiose or “high-falutin’.” As every lawyer knows, the legal enterprise is not only about philosophical reflections on the nature of justice or the splendor of truth; it’s also about the nuts and bolts of crafting arguments, reaching agreements, finding facts, and solving problems. We lawyers are inspired by the words of our patron saint, Thomas More, who notes – in Robert Bolt’s wonderful play, A Man for All Seasons – that God made men and women to “serve Him wittily, in the tangle of their minds.” The life of the mind is an arena for serving God, and we lawyers like to think that we have a special calling to supply the wits, and help unravel the tangle.

At a Catholic law school, three words, or themes, come up again and again in our conversations about how we should do what we do, how we can strengthen and enrich the wider university, and about what makes us different from the many other fine law schools. Those words are community, integration, and vocation.

We aspire to be not just a collection of individuals, but a true community of teachers, scholars, students, and professionals, united by a passion for justice. The Church has long taught, in its social doctrine, that the human person is social, and flourishes only in and through community. This is certainly true for law and lawyers. At a Catholic law school, our goal is to serve the common good – to put the law and our legal talents in the service of that good – and to do so in community. The word “community” for us expresses both how and why we “do law.” We invite our students not only to three years of technical training, but also to a shared enterprise, a learned profession, and a lifetime of relationships.

We also aim for integration. Too many lawyers are unhappy, and this is in part because they have been taught to radically compartmentalize, and dis-integrate, their lives. A Catholic university is committed to the idea that faith and reason work together – that they are, in the late Pope’s words – “like two wings on which the human spirit rises to the contemplation of truth.” Just as faith and reason can and must be integrated in the search for knowledge, it is also essential for professionals and students that their work, values, commitments, and loves be integrated and coherent. At a Catholic law school, we invite and try to inspire young lawyers to bring their values and religious faith to their studies, and then to carry them into their lives in the law. In our view, we cannot expect young lawyers to think deeply and well about law, justice, and the common good if we tell them to privatize their ideals, or to radically separate their fundamental moral commitments from their law practices. And so, we encourage our students to approach their vocations – as lawyers, spouses, parents, friends, and citizens – as whole persons. We challenge them to integrate their work, their beliefs, their values, and their activism. We urge them always to remember who they are, what they believe, where they came from, and to resist the temptation to “check their faith at the door” of their professional and public lives.

Finally, “vocation.” Many of us, when we hear the word, probably think either in terms of the clergy and religious life, or "vo-tech" classes. We mean something different, though, when we challenge our students to think of their lives in the law in terms of vocation, and calling. We are not naïve. We know that, for many, law is experienced more as a job, and less as an adventure. We know that plenty of people go to law school, and go into law practice, not because they heard a “call,” but because their parents expected it, or because lawyers in the movies seemed glamorous, or because they couldn’t think of anything else to do. Still, we propose to our students and graduates – and to our profession – that we should all wrestle with the question, “what would it mean for my time in law school, and for my life in the law, if I tried to think about the law as a vocation?” We challenge our students and colleagues to ask, “who is calling me, and what am I being called to do?” These are difficult questions to ask, yet alone to answer. Odds are, we won’t get instructions from a Burning Bush, or be blinded by a light on the road to Damascus, or even get the answer from a still, small voice in the night. Still, we try to listen.

Monday, August 5, 2013

Robert Bellah, RIP

As noted here in a tribute by Kieran Healy, the eminent sociologist Robert Bellah died last week. Bellah's most recent book, Religion in Human Evolution, was the subject of an interesting First Things symposium, including some tough criticism from Paul Griffiths and the faint praise from Thomas Joseph White that Bellah's book is "arguably the greatest work of liberal Protestant theology ever." But as Healy notes, Bellah's enduring intellectual influence was in his articulation of the idea of "civil religion" in American public life and--more profoundly, I think--in Habits of the Heart, which still often seems fresh and insightful almost three decades on. Along with such modern classics as Alasdair MacIntyre's After Virtue and Charles Taylor's The Sources of the Self, Habits of the Heart began the reappropriation of what was (reductively then) styled "communitarianism" but, at its best, was a grand (and Catholic) alternative to the torpor of 1970s liberal political theory. Here is a lovely post by Margarita Mooney on a recent conversation with Bellah, including this bit of reflection from her:

How do we recover a vision of the common good? Bellah told me he had just started reading Catholic teachings on human rights and the common good, beginning with one of the foundational documents of Vatican II, Gaudium et spes. Bellah was “utterly blown away” by the Gaudium et spes’s unflinching defense of human dignity combined with a robust vision of social justice. It’s hard, Bellah said, to avoid an individualistic or utilitarian vision of human rights, but Guadium et spes articulates how human rights and the common good reinforce each other. What do I think of Benedict XVI’s social encyclical Caritas in veritate, Bellah asked me?

Since I had previously read numerous of Benedict XVI’s books on Christology, theology, and secularization, I was already familiar with various themes of his thought which appear in Caritas in veritate: that truth is objective rather than relative, and that virtue must be both in the heart and in action. As such, the church’s mission of charity can never be private; the church’s mission of charity is public—it is oriented to the greater good of all, regardless of religious creed. Hence, the state and church are inter-dependent in their work for the common good, something that is hard for people to understand if they think religion must only be a private matter.

Thursday, July 11, 2013

The Libertas Project at Villanova Law

As reported at this story in the National Law Journal and here at the Villanova web site, Villanova Law has received a generous grant from the Templeton Foundation to launch The Libertas Project on religious and economic freedom. Starting in 2014, the project will bring leading scholars, judges, and policy makers to Villanova through conferences, workshops, and sponsored research. The project will seek to bring together concerns about religious freedom and economic freedom in a common framework that situates both topics amid a larger conversation about freedom, law, and virtue. Through the project, Villanova will aspire to broaden the academic and public appreciation for religious freedom as a human good, while also bringing the insights of religion to bear on conversations about economic freedom as an essential component of a free society.

Monday, June 3, 2013

Governor Tom Corbett's Commencement Speech at Villanova

I want to echo Lisa's comment below about the rich discussion during the symposium on St. Thomas More sponsored by the Murphy Institute and the Center for Thomas More Studies. Speaking of Thomas More, Governor Tom Corbett of Pennsylvania delivered the commencement address at Villanova Law a couple weeks ago and spoke about Thomas More and Abraham Lincoln as role models for lawyers. The address is well worth watching, which you can do at this link (starting at 21:00).

Tuesday, May 7, 2013

Catholicism and Liberalism: Raz or Rawls?

I apologize for light blogging of late, partly due to a lot of travel (including a wonderful visit to Scandinavia during the late winter) and administrative duties. A particular highlight was a visit to the Newman Institute for Catholic Studies at Uppsala in Sweden (English web site here), where the Jesuits are doing great work adjacent to the Swedish state university there. (The motto of the Institute is "Kan man tro på vetandet?," or "Can you believe in knowledge?"--a subtly Lonerganian tag.)

A few months ago, I participated in a panel on Cathy Kaveny's book Law's Virtues at the Brookings Institute moderated by Bill Galston and alongside EJ Dionne and Melissa Rogers from Brookings and Margaret Little from Georgetown's Kennedy Institute. The transcript of the event is here. As I noted in my remarks, while I like many of Cathy's moves in the book (emphasizing the pedagogical function of law and some detailed treatment of the ethics of voting, for example), I do have a deep reservation about the basic argument, namely that there is a convergence between Joseph Raz's account of autonomy and the concept of solidarity in Catholic social teaching. Razian autonomy and its attendant pluralism (according to which "incompatible forms of life are morally acceptable and they display distinct virtues, each capable of being pursued for its own sake," The Morality of Freedom, p. 396) are, it seems to me, difficult to square with Catholic views on the human good--or at least not without a great deal more by way of argument.

Indeed, I pointed out that there is a deep reservation from within liberalism on this matter. For that, I invoked Rawls--as interpreted by Martha Nussbaum in her paper "Perfectionist Liberalism and Political Liberalism (39 Philosophy and Public Affairs 3 (2011))--for the view that equal respect is, for this limited purpose, a preferable political, non-perfectionist alternative to Raz's view. As Nussbuam argues, Raz's view entails expressive subordination of those who reject his moral pluralism:

Expressive subordination is a form of religious establishment. The fact that Raz’s view is secular makes no difference to that conclusion. And it is wrong for the reason that religious establishment is always wrong: it offends against the equality of citizens. It tells them, to quote James Madison, that they do not all enter the public square “on equal conditions.” This conclusion apparently does not trouble Raz: if they do not accept the fact of pluralism and the ideal of autonomy, it is fine to treat them unequally. But it troubles me, as it troubled Larmore and Rawls. It is because many people think that Raz’s sort of comprehensive liberalism is the only viable form of liberalism that they also think that liberalism is not neutral about the good life, but is a form of religion in its own right. 35

Now, I'm not putting all of my bets in the end on either Razian autonomy or Rawlsian respect, but only making the point here that Rawls provides within the contours of liberal political theory a more adequate account and one more congenial (because so chaste in its aspirations) to some Catholic conceptions of politics.

The final question at the event came from Bill Galston, who (typically) asked the smartest question that went right to the heart of the issue:

GALSTON: Now, here's my question. And let me structure it in the following way. I'm going to address my question to Mike Moreland and after I've done that I'm going to invite Cathy to respond to his response. Then we'll see what happens.

KAVENY: That's like a pool shot.

GALSTON: A bank shot technically speaking. Okay. And back to this remarkable illegitimate offspring of Thomas Aquinas and John Locke, namely Joe Raz.

Now, you [Cathy] make an accurate and important point when you say Raz contends that the reason for protecting freedom stems not from the dearth of objective value but rather from a surfeit of such value. More specifically, he holds that the rationality for protecting freedom stems from the recognition there are a number of mutually incompatible but objectively worthwhile, morally worthwhile, ways of living one's life. All of which deserve protection precisely because they are objectively, morally worthwhile.

Now, as a student and devotee of Isaiah Berlin, I think I know where that comes from and I think I know where Raz got it. So, here's my question for Mike Moreland. From the Catholic standpoint as you understand it, what is the status of the proposition of morally worthwhile but mutually incompatible ways of life? Is that a proposition with which Catholic thought as you understand it is comfortable?

My answer at the end of the event was, to paraphrase, "no." But I'm grateful to Bill Galston, Cathy Kaveny, and the others at Brookings for the rich discussion.

Monday, May 6, 2013

Søren Kierkegaard

I was reminded by this excellent post over at Commonweal by my friend Scott Moringiello that yesterday was the bicentenary of the birth of the great Danish theologian Søren Kierkegaard. I visited Kierkegaard's grave while on a visit to Copenhagen a few months ago--as I joked with a friend, for the purpose of telling Kierkegaard he was right all along. Stepping back from the torrent of words (in law and otherwise) around us, there are a handful of indispensable authors for understanding the human condition, and Kierkegaard is, in my view, one of them. A bit from Kierkegaard's journals:

Christianity has been abolished somewhat as follows. Men have entrenched themselves more and more firmly in the fixed idea that Christianity's meaning should be in a trivial sense to make life easier and easier, the temporal easier and easier, something which again is consistent with the fact that the preaching of Christianity has for a long time been, in a trivial sense, an occupation, so these rascally preachers, for the sake of profit, have administered Christianity just as shopkeepers or journalists—nothing better on the market—and therefore the meaning of Christianity becomes in the trivial sense: to make life easier.

Thereby they have succeeded in completely abolishing Christianity, for Christianity is not some physical externality which remains even though untrue affirmations are made about it; no, Christianity is an inwardness which is transformed by the affirmations.

And since Christianity has been abolished this way, the whole realm of the temporal has also come to be muddled, with the result that it is no longer a question of a revolution once in a while, but underneath everything is a revolution which can explode at any moment.

And this is consistent with the fact that we have abolished Christianity as the regulating weight, as weight, of course, but as regulating weight.

It certainly is true, as I have pointed out somewhere else, that the more meaningless we make life, the easier it is, and therefore that life in one sense has actually become easier, not, as the pastors falsify, by means of Christianity, but by abolishing Christianity. But, on the other hand, this nevertheless has its difficulty; when a man or when a generation must live in and for merely finite ends, life becomes a whirlpool, meaninglessness, and either a despairing arrogance or a despairing disconsolateness.

There must be weight—just as the clock or the clock's works need a heavy weight in order to run properly, and the ship needs ballast.

Christianity would furnish this weight, this regulating weight, by making it every individual's life-meaning that whether he becomes eternally saved is decided for him in this life. Consequently Christianity puts eternity at stake. Into the middle of all these finite goals, which merely confuse when they are supposed to be everything, Christianity introduced weight, and this weight was intended to regulate temporal life, both its good days and its bad days, etc.

And because the weight has vanished—the clock cannot run, the ship steers wildly—and for this reason human life is a whirlpool.

Søren Kierkegaard’s Journals and Papers, ed. and trans. Howard V. Hong and Edna H. Hong, Volume I, pp. 437-38.

Monday, April 22, 2013

Chris Eisgruber and Lawyer-University Presidents

Congratulations to Chris Eisgruber--a fellow member of the law and religion guild--upon his election as the 20th President of Princeton University. Eisgruber's book (co-authored with Larry Sager) Religious Freedom and the Constitution (Harvard, 2010) has been a formidable contribution to the field (especially for those of us who disagree with aspects of it), and Chris has been a generous conversation partner at many law and religion gatherings.

This also continues an interesting story about lawyers being tapped for university presidencies. With some notable exceptions (Robert Maynard Hutchins and Kingman Brewster come to mind), it seems to me there was a longtime bias against JDs (or LLBs in a bygone era) serving as presidents of elite institutions, but there is a trend over the past few decades in the other direction--Lee Bollinger, James Freedman, and Derek Bok are just a few examples. Why? My guess is that it's a significant marker of the acceptance of legal scholarship as a research field in the wider academy and the skills that lawyers often bring to such administrative positions--and, of course, the talents of the individual candidates.

Thursday, March 21, 2013

Jason Brennan on Rawls

I've just finished a long slog with 75 1Ls through John Rawls's brilliant but maddening A Theory of Justice in an elective course on justice (I time it to coincide with Lent). Given the importance of distributive justice to much of what we discuss here at MOJ, I thought these comments by Jason Brennan at 3:AM Magazine were interesting--see especially his answer to the first question about Fairnessland and ParetoSuperiorland and what he says in the second answer about the shortcomings of legal guarantees. I do think there are some (not all, to be sure) interpretations of Catholic social thought that commit themselves (usually without the same level of philosophical rigor as Rawls) too quickly to a kind of Rawlsian fairness approach and would thereby be subject to the reservations Jason Brennan briefly signals here:

3:AM: You next turned to Rawls, probably the greatest liberal political philosopher since Mill. You worry that his theory of justice is paradoxical and that following his principles works against the poor, contrary to his intentions. Can you show how?

JB: I don’t want to get bogged down in Rawls exegesis, so I’ll simplify the issue at the expense of perfect accuracy. At various times, Rawls indicates that he thinks there’s a trade-off between long-term economic growth and distributional goals. If we intervene with social-democratic institutions in the attempt to help the poor, this will slow down growth in the long run. Rawls also seems to think that more free market institutions cannot realize the difference principle. Even if they were to help the poor, they don’t “aim” to help the poor, and so don’t count as realising justice. So, I ask readers to imagine two societies. One — Fairnessland – uses Rawls favored economic institutions, but has slower growth (2% a year for the least well-off class). The other — ParetoSuperiorland — uses laissez faire or welfare state capitalist institutions, but has faster growth (say 4% a year for the least well-off class). Thanks to redistribution, property allocation, and other interventions, the worst off in Fairnessland start off 50% richer than the worst off in ParetoSuperiorland. However, after 26 years of growth, the worst off in ParetoSuperiorland are much richer than the worst off in Fairnessland. It seems that if you really care about how well the poor are doing, in the long run, you must favour ParetoSuperiorland over Fairnessland. But, as I discuss in ‘Rawls’s Paradox’, Rawls seems to have certain controversial commitments — such as ideas about workplace democracy or about the relationship between institutional performance and people’s individual sense of justice — that commit him to favoring Fairnessland over ParetoSuperiorland. That seems wrong.

3:AM: Do you have a way of fixing this, or is there nothing for it but to abandon Rawls and look elsewhere?

JB: I find a lot to like in Rawls. Society is cooperative venture for mutual advantage. Everyone should have a stake in the rules of the game — the rules should be something we can all endorse. Property rights and other economics aren’t legitimate if they systematically leave large groups of people behind through no fault of their own. How well we do in life depends on the “rules of the game”, and if we think we can demand others play by the rules, they can in turn demand that the rules benefit them sufficiently to win their assent. Still, even at his best, Rawls is too strongly infatuated with the idea of legal guarantees. There is a difference between guaranteeing in the sense of rendering something inevitable (such as how quadrupling the minimum wage would guarantee rising unemployment) versus guaranteeing in the sense of issuing a legal declaration (such as when the Soviet Constitution of 1936 guaranteed free speech, privacy, and due process, or when Bush guaranteed no child would be left behind). A legal guarantee is no real guarantee. Many factors can and do disrupt, corrupt, or pervert legal guarantees. Legal guarantees are good only if they work. To give government the power to promote some valuable end does not automatically promote that end. In fact, sometimes, giving government the power to promote an end undermines that end. Finally, there is no guarantee that such legal guarantees will outperform other ways of generating the preferred goal. Sometimes, if people refuse to guarantee certain valuable outcomes, their refusal is part of what actually generates the valued outcome. As John Tomasi documents in his new book Free Market Fairness, and as I have complained elsewhere, Rawls doesn’t play fair when he assesses different kinds of regimes. He effectively compares property-owning democracy at the level of ideal theory with a not-very-charitable, non-ideal characterisation of more capitalistic regimes. At the very least, Rawlsians should admit that at the level of ideal theory, welfare state and even laissez faire capitalist regimes can satisfy Rawls’s theory of justice. In fact — and I say this as stringent critic of real-world command economies — I think even centralised, command economy socialism can satisfy Rawls at the level of ideal theory. One misuse of ideal theory would result from inferring that if some institutions are best under “ideal” conditions, then our real world institutions ought to come as close as possible to those institutions. Not so. Different conditions call for different tools. Ideal conditions might call for a wrench when non-ideal conditions call for a hammer. In other words, ideal theory is like designing cars on the assumption that they’ll never encounter slippery pavement, and will never be driven by bad drivers. If we had no such worries, we might not bother installing air bags. Here and now, though, we have compelling practical reason to not build cars like that. Analogously, if power didn’t corrupt, if people were invariably altruistic and omniscient, we might have reason to entrust government with a great deal of power. But if people are corruptible, if power is above all what corrupts, if people’s generosity depends very much on circumstances, and if relevant knowledge often is inaccessible to those who hold power, the kind of government we have reason to favour might not remotely be like that.