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, March 21, 2013

Francis of Assisi

I hope one of the fruits of the election of Pope Francis will be (indeed, already has been) a renewed appreciation for Francis of Assisi--the real Francis of Assisi, not distortions of him to which every age, most especially our own, is inclined. To that end, I've been dipping into the recent biography of Francis by Augustine Thompson, OP. Here's a bit from Thompson's introduction:

In historical writing, I usually avoid suggesting what the past should mean for modern readers. But as many have asked me what I have learned from Francis, I will make some suggestions as to what he has taught me as a Catholic Christian. I am sure that he will teach each reader something different, so these reflections are purely my own. First, he taught me that the love of God is something that remakes the soul, and doing good for others follows from this; it is not merely doing good to others. Francis was more about being than doing. And the others whom the Christian serves are to be loved for themselves, no matter how unlovable, not because we can fix them by our good works. Second, rather than a call to accomplish any mission, program, or vision, a religious vocation is about a change in one's perception of God and creation. Above all, it has nothing to do with success, personal or corporate, which is something that always eluded Francis. Third, true freedom of spirit, indeed true Christian freedom, comes from obedience, not autonomy. And as Francis showed many times in his actions, obedience is not an abstraction but involves concrete submission to another's will. Freedom means becoming a "slave of all." Last--and I hope this subverts everything I have just written--there are no ready and clear roads to true Christian holiness.

Augustine Thompson, OP, Francis of Assisi: A New Biography (Cornell UP, 2012), x.

Wednesday, March 20, 2013

A Libertarian Win for the Benedictines

With the help of the Institute for Justice, the Benedictine monks of St. Joseph Abbey in Louisiana (who partly support themselves through making caskets) have won a challenge in the Fifth Circuit to a (rent seeking) Louisiana restriction on the sale of caskets to licensed funeral homes. As Eugene Volokh notes, this is another impressive win by IJ in a case challenging state economic regulations as lacking rational basis, notwithstanding the high level of deference to the government in such cases. The opinion by Judge Patrick Higginbotham is here.

Wednesday, March 13, 2013

Pope Francis

As I say in this Philadelphia Inquirer story, I'm delighted (and surprised) by the election of Cardinal Bergoglio. He has a remarkable range of experiences--university professor, Jesuit novice master and provincial, spiritual director, and bishop. And I could be wrong about this, but I believe he may be the first pope with graduate training in the natural sciences (a master's degree in chemistry). There will be much celebration in my home this evening: my wife is from Buenos Aires.

Monday, January 28, 2013

Aquinas on Teaching

As Rick notes, today is the great Feast of St. Thomas Aquinas (it's also the date of Henry VIII's death in 1547, but let's set that aside). Some words about Aquinas on teaching from one of Aquinas's Dominican brothers, Brian Davies, OP of Fordham:

Does Aquinas have advice for teachers? As a matter of fact, he does. And it is rather sensible. For, so he says on more than one occasion, teachers should proceed with an eye on the intellectual standing of their students.  “Knowledge”, he suggests in his Summa contra Gentes, “is acquired in two ways, both by discovery without teaching, and by teaching. Consequently teachers begin to teach in the same way as discoverers begin to discover, namely by offering to the disciples' consideration principles known by them, since all learning results from pre-existing knowledge”. In other words, Aquinas thinks that teachers ought to start from where their students are. He also thinks that they ought to express themselves clearly. In the Summa theologiae he alludes to the view that “it is the duty of all teachers to make themselves easily understood”. And this sentiment is very much echoed in the way in which Aquinas himself communicates. He is a model of lucidity, especially in the Summa theologiae which actually begins with some reflections on the business of teaching those in their early stages of study. The subject matter of the Summa theologiae is the entire scope of Christian teaching, and in a foreword to the work Aquinas expresses himself unhappy with much that he knows to be available on this. “Newcomers to this teaching” he says, “are greatly hindered by various writings on the subject, partly because of the swarm of pointless questions, articles, and arguments”. They are also, says Aquinas, hindered by the fact that available texts all too often pursue the interests of their authors rather than “a sound educational method”, which Aquinas takes to involve being “concise and clear, so far as the matter allows”.

It is not, of course, easy to be concise and clear. And it is hard to get to the truth of things. So Aquinas also has another piece of advice to offer those who go in for teaching. For in his view they need to cultivate a high degree of humility. In particular, so he says, they should remember that all that they have is given to them by God, including their learning and their skills at conveying it. According to Aquinas, and as he puts it in the Summa contra Gentes: “God by His intelligence is the cause not only of all things that subsist in nature, but also of all intellectual knowledge”. At one level Aquinas suggests that this conclusion ought to leave teachers feeling proud, for it implies that they share in God's work of bringing it about that learning occurs. Or, as he says in a lecture delivered in 1256: “The minds of teachers ... are watered by the things that are above in the wisdom of God, and by their ministry the light of divine wisdom flows down into the minds of students”. At another level, however, Aquinas reckons that teachers should realize that their role as divine instruments ought to remind them of their need of divine assistance. Aquinas himself always prayed before writing, just as he prayed when he ran into any kind of difficulty. In the lecture of 1256 he notes that teachers of theology might feel that they are just not up to their task. But, he adds, “no one is adequate for this ministry by himself or from his own resources” and one may “hope that God may make one adequate”. And, so I might add, if one considers this remark in the context of Aquinas’s writings as a whole, it should not be viewed only as a word to theologians. It is a comment he would have offered to all teachers.

"Aquinas and the Academic Life," 83 New Blackfriars 336, 342-43 (2002).

 

Wednesday, January 23, 2013

Exploring the Catholic Intellectual Tradition

Boston College has a new issue here of its regular publication "C21 Resources" that explores the Catholic intellectual tradition. The issue (edited by Father Robert Imbelli) includes excellent contributions from, among others, BC's own (and MOJ friend) Greg Kalscheur, SJ, CUA President and former BC law dean John Garvey, and the lovely and talented Anna Bonta Moreland on teaching and the Catholic intellectual life in Villanova's Department of Humanities.

Law's Virtues at Brookings

I will be a respondent at an event next week (Thursday, January 31) at the Brookings Institution on Cathy Kaveny's new book, Law's Virtues: Fostering Autonomy and Solidarity in American Society (Georgetown University Press, 2012) moderated by Bill Galston and alongside EJ Dionne and Melissa Rogers from Brookings and Margaret Little from Georgetown's Kennedy Institute. Details here.

Tuesday, January 22, 2013

Why Is There So (Relatively) Little Good Scholarly Work on Abortion?

A thought (or just a hypothesis) for the day: For a topic that has convulsed American law and politics since 1973, the abortion issue has produced a surprisingly meager scholarly literature. This came to me when I was selecting readings for a seminar in law and bioethics, which I teach from time to time--it turns out it's hard (at least much harder than I expected) to find good resources on the topic. I don't mean to suggest, of course, that there has been nothing worthwhile written on abortion. Judith Jarvis Thomson's article about the kidnapped violinist in "A Defense of Abortion" (1970) remains a classic pro-choice argument, and our own Robby George, his mentor John Finnis, and John Keown (another Finnis student) have produced powerful defenses of the pro-life position. Then-Professor John Noonan's edited collection The Morality of Abortion: Legal and Historical Perspectives (Harvard, 1970) includes Noonan's own "An Almost Absolute Value in History" and Paul Ramsey's "Reference Points in Deciding about Abortion." (Note that Thomson's article and the Noonan collection are all pre-Roe and now over 40 years old.) Will Saletan's Bearing Right (California, 2004) was an interesting read about the politics of the pro-life movement, Mary Ann Glendon's Abortion and Divorce in Western Law (Harvard, 1989) is a wonderful comparative study, and my colleague Joe Dellapenna published a 1300-page survey of the history of abortion, Dispelling the Myths of Abortion History (Carolina Academic Press, 2006).

I am leaving a lot out that I could mention from many quarters (McMahan, Kaczor, Beckwith, eg), but, even so, this strikes me as a relatively small output of literature for a topic of such prominence. Law review articles working through the weeds of legal doctrine on abortion strike me as less common than one might expect (Jessie Hill's, Naomi Cahn's, and Reva Siegel's work on the pro-choice side, Mark Rienzi's, Michael Paulsen's, and Helen Alvaré's work and articles such as Stephen Gilles's "Roe’s Life-or-Health Exception: Self-Defense or Relative-Safety?," 85 Notre Dame L. Rev. 525 (2010) on the pro-life side being notable exceptions--again, leaving out some other candidates). Why is this? Are the arguments on each side now so well-rehearsed and known that there is little new--since, say, the initial outburst of literature in the early 1970s--to say on the topic? Are the terms of the abortion debate (sanctity of life, equality, liberty, autonomy) themselves so intractable that, as Alasdair MacIntyre suggests in After Virtue, abortion is merely one manifestation of the incommensurability in moral argument that afflicts our culture? And so writing on the topic--certainly writing in the hope of persuading those readers who disagree--is usually not worth the effort?

Monday, January 14, 2013

Bishop Flores on the Year of Faith

I had the pleasure last year of traveling to McAllen, Texas and speaking to a gathering of the clergy of the Diocese of Brownsville followed by lunch with their bishop, Daniel Flores. Bishop Flores has a wonderful blog post here reflecting on the Year of Faith and overcoming discouragement (an especially worthwhile lesson for those of us working in legal education today):  

In this Year of Faith, we must strengthen our own sense of the victory of life and the power of Christ to break through the mesmerizing effect, this fascination the world has with the morose. Jesus says, “I have overcome the world.” Like lightning on a cloudy night, the victory that God wins through the passion, death and resurrection of Christ the Lord is the break-through of the power of life into a world darkened by the aggressive power of death. We must be reconfirmed in our faith because we do sometimes get discouraged. That too is part of the power of death, it's power to discourage. It is important to cultivate our faith in the victory of Christ and to invite the the light of the Lord’s life and his victory of life to take greater possession of each one of us.

This gift of faith we have received is the only hope of the world; it breaks through the culture of death. Out culture desperately needs an infusion of faith in the goodness of life. In this context, we can hear the Lord speak these words, “Take care little flock for I have overcome the world,” for we are often afraid. Sometimes we think we are outnumbered, but numbers never matter with God. What matters is the conviction of his grace working through those who do believe.

Monday, January 7, 2013

Tiebout Sorting and Public Education

In addition to the concerns voiced below by Rick and Marc to what was (apparently) Dean Chemerinsky's suggestion at the AALS session on education law that we should address inequality and segregation in K-12 education by creating large metropolitan-wide school districts, I would note that there is an at least debatable question about whether creation of metro districts would solve the problems of public schools (apart from the issues about private education that Rick and Marc have talked about already). For reasons I vividly recall studying in a seminar with Rick Hills and as summarized in this NBER research abstract by Caroline Minter Hoxby, there are substantial public finance arguments based on the Tiebout model that higher levels of geographic and financial centralization of public education make everyone worse off (subsidiarity!). See also the discussion of school finance in William Fischel's The Homevoter Hypothesis: How Home Values Influence Local Government Taxation, School Finance, and Land-Use Policies about why de-linking property values and public education spending has not turned out well (California is Exhibit A). I don't doubt that reforming K-12 education should be a social justice priority, only that some of the usual easy solutions (centralized state funding for education, larger districts) would be successful. Here is a bit from Hoxby's paper (though I gather part of Dean Chemerinsky's argument is that overruling Milliken v. Bradley and engaging in widespread busing would address some of what Hoxby argues here):

Choice among districts turns out to have little effect on the degree of segregation among students. The reason is that, empirically, the degree of racial, ethnic, and income segregation that a student experiences is related to the degree of choice among schools in a metropolitan area, but not to the degree of choice among districts. In other words, students are just as segregated in metropolitan areas that contain few districts as they are in metropolitan areas that contain many districts. Households sort themselves into neighborhoods inside districts; neighborhoods and schools are small enough relative to districts that district boundaries have little effect on segregation.

This result demonstrates how important it is to compare realistic alternatives. The realistic alternative to a metropolitan area with a high degree of choice among districts is not a metropolitan area in which all schools are perfectly desegregated and every student is exposed to similar peers. The realistic alternative is a metropolitan area with a low degree of choice among districts and a substantial degree of segregation among schools.

Wednesday, January 2, 2013

Reminder: 2013 Conference on Christian Legal Thought in New Orleans

A reminder for those attending the AALS in New Orleans that the 2013 Conference on Christian Legal Thought sponsored by the Lumen Christi Institute at the University of Chicago and the Law Professors' Christian Fellowship will take up the nature of law, based partly on a pending statement on the nature of law from a group of Evangelical and Catholic scholars. The schedule of speakers is below, and you can register here

Saturday, January 5, 2013, 1 PM to 6:15 PM
Wyndham Riverfront New Orleans
701 Convention Center Boulevard
New Orleans, LA 70130

Conference Topic: The Statement on the Nature of Law from Evangelicals and Catholics

1:15 PM – 2:45 PM: Session One: Christian Perspectives on the Nature of Law
Chair: Michael Moreland (Villanova University School of Law)

William Brewbaker III (University of Alabama School of Law)

Nora O’Callaghan (Loyola University Chicago School of Law)

David Skeel (University of Pennsylvania Law School)

2:45 PM – 3:00 PM: Coffee Break

3:00 PM – 4:30 PM: Session Two: Non-Christian Perspectives on the Nature of Law
Chair: Zachary R. Calo (Valparaiso University Law School)

Bruce Ledewitz (Duquesne University School of Law)

Dan Markel (Florida State University College of Law)

Seval Yildirim (Whittier Law School)

4:45 PM – 5:15 PM: Vespers

5:15 PM: Reception