I caught on C-SPAN the other night this speech (video here, text here) by George Will, which was delivered earlier this month at Washington University under the auspices of the Danforth Center on Religion and Politics. I admire much about Will, though there is always plenty to disagree with in an author who has been writing regularly and prodigiously since 1974 (!), and I think his best work reflects an earlier American Toryism in such books as Statecraft as Soulcraft: What Government Does (1983) and the collected essays in The Pursuit of Virtue and Other Tory Notions (1982). Will is himself not a religious believer, as he discusses somewhat autobiographically in the talk (philosophical trivia: Will mentions his father, Frederick Will, a longtime member of the Philosophy Department at the University of Illinois and also a friend and colleague of moral philosopher James Wallace, father of David Foster Wallace). But Will thinks religion serves an important purpose in American politics, expressed in his thesis:
Religion is central to the American polity because religion is not central to American politics. That is, religion plays a large role in the nurturing the virtue that republican government presupposes because of the modernity of America. Our nation assigns to politics--to public policy--the secondary, the subsidiary role of encouraging, or at least not stunting, the flourishing of the infrastructure of institutions that have the primary responsibility for nurturing the sociology of virtue. 13
I worry, however, that the rest of the talk expands upon a basically instrumental and peculiarly modern (see the praise of Hobbes at pages 25f that will surely cause panic among some of my MOJ colleagues) conception of religion and politics that is too theologically austere to sustain itself, even if I am sympathetic in some respects to what Will says on, for example, natural rights (but then note the debatable anti-perfectionist conclusion to this line of argument):
They [the Founders] understood that natural rights could not be asserted, celebrated and defended unless nature, including human nature, was regarded as a normative rather than a merely contingent fact. This was a view buttressed by the teaching of Biblical religion that nature is not chaos but rather is the replacement of chaos by an order reflecting the mind and will of the Creator.
This is the Creator who endows us with natural rights that are inevitable, inalienable and universal--and hence the foundation of democratic equality. And these rights are the foundation of limited government--government defined by the limited goal of securing those rights so that individuals may flourish in their free and responsible exercise of those rights.
A government thus limited is not in the business of imposing its opinions about what happiness or excellence the citizens should chose to pursue. Having such opinions is the business of other institutions--private and voluntary ones, especially religious ones--that supply the conditions for liberty.
In short, read or watch the talk for its engaging and provocative presentation of a certain kind of "American-establishment-constitutional-conservative-natural rights-liberalism," but then ask what it leaves out.
Augustine was preoccupied throughout his life by questions about beginnings and origins, so here is some food for thought on New Year's Eve and in light of today's Gospel reading from John 1:1-18:
In the beginning was the Word: the Word was with God and the Word was God. He was with God in the beginning. Through him all things came into being, not one thing came into being except through him.
What has come into being in him was life, life that was the light of men; and light shines in darkness, and darkness could not overpower it.
A man came, sent by God. His name was John. He came as a witness, to bear witness to the light, so that everyone might believe through him. He was not the light, he was to bear witness to the light.
The Word was the real light that gives light to everyone; he was coming into the world. He was in the world that had come into being through him, and the world did not recognise him. He came to his own and his own people did not accept him. But to those who did accept him he gave power to become children of God, to those who believed in his name. who were born not from human stock or human desire or human will but from God himself.
The Word became flesh, he lived among us, and we saw his glory, the glory that he has from the Father as only Son of the Father, full of grace and truth.
John witnesses to him. He proclaims: 'This is the one of whom I said: He who comes after me has passed ahead of me because he existed before me.'
Indeed, from his fullness we have, all of us, received -- one gift replacing another, for the Law was given through Moses, grace and truth have come through Jesus Christ. No one has ever seen God; it is the only Son, who is close to the Father's heart, who has made him known.
Why, I beseech Thee, O Lord my God? I see it in a way; but how to express it, I know not, unless it be, that whatsoever begins to be, and leaves off to be, begins then, and leaves off then, when in Thy eternal Reason it is known, that it ought to begin or leave off; in which Reason nothing beginneth or leaveth off. This is Thy Word, which is also "the Beginning, because also It speaketh unto us." Thus in the Gospel He speaketh through the flesh; and this sounded outwardly in the ears of men; that it might be believed and sought inwardly, and found in the eternal Verity; where the good and only Master teacheth all His disciples. There, Lord, hear I Thy voice speaking unto me; because He speaketh us, who teacheth us; but He that teacheth us not, though He speaketh, to us He speaketh not. Who now teacheth us, but the unchangeable Truth? for even when we are admonished through a changeable creature; we are but led to the unchangeable Truth; where we learn truly, while we stand and hear Him, and rejoice greatly because of the Bridegroom's voice, restoring us to Him, from Whom we are. And therefore the Beginning, because unless It abided, there should not, when we went astray, be whither to return. But when we return from error, it is through knowing; and that we may know, He teacheth us, because He is the Beginning, and speaking unto us.
A blog devoted to Catholic legal theory can hardly let pass today's Feast of St. Thomas Becket (c.1181-1170). Peter Glenville's 1964 film with Richard Burton as Becket and Peter O'Toole as Henry II is a classic. More recently, the eminent Tudor historian John Guy (author of a number of fine books on Thomas More) has written a splendid biography of Becket--a taste here:
For his attack on the church's claim of immunity from secular jurisdiction, Anglo-American lawyers and constitutional historians in the nineteenth century would put on rose-colored spectacles and reinvent Henry as a legal reformer avant la lettre, a pioneer of fair trials and equality before the law who paved the way for some of the most important clauses later incorporated into Magna Carta and the U.S. Constitution and Bill of Rights. In reality, however, his actions showed that the rights of the accused could always be overridden by political considerations and the king's will. Far from remodeling the legal system and the courts in the interests of justice and the common good, Henry sought to strengthen his own power. And far from being a pioneer of "equitable" or "impartial" justice, he happily presided over his own court in the Battle Abbey case and at Becket's trial for embezzlement and false accounting at Northampton, acting simultaneously as chief counsel for the prosecution, judge, and jury. In response, Thomas would prove that a middle-class Londoner could transcend his social origins and challenge a ruler who he believed was degenerating into a tyrant, but it would cost him his life. Thomas More would take a similar path in Henry VIII's reign, and it may be no coincidence that More's working library contained many of the same books as Becket's.
John Guy, Thomas Becket: Warrior, Priest, Rebel (Random House, 2012), p. 338.
In conjunction with the annual meeting of the AALS in January, 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--$30 gets you an afternoon of enlightening conversation and a lavish cocktail reception. I hope to see many MOJ readers there.
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)
A major task for Catholic legal theory, I think, is to recover and appropriate figures from the tradition who are today neglected, misinterpreted, and forgotten. So I was pleased to come across this review in the Notre Dame Philosophical Reviews of a new and promising collection of essays from Cambridge University Press on the great Spanish Jesuit scholastic Francisco Suárez (1548-1617)--even if Suárez took some wrong turns, the wrong turns are themselves important for understanding the Catholic legal tradition. Here's a bit from the review:
[Thomas] Pink concludes his chapter on "Action and freedom in Suárez's Ethics" with a section on "The Hobbesian Critique" which serves to bring into relief the fundamental differences that account for the shift from the Scholastic view that freedom is constituted by law to the modern view that it is limited by law. Pink, in discussing the positions Suárez takes within the broader Scholastic, practical-reason-based approach, also draws helpful contrasts between Suárez's distinctive views and arguments and those of influential contemporaries such as Vasquez and Punch. Finally, [Terence] Irwin's chapter on "Obligation, rightness, and natural law: Suárez and some critics" gives an extremely sensitive, in-depth examination of key texts, showing contra Finnis and Pink that Suárez has a coherent theory of obligation, that his sense of 'obligatio' as distinct from duty fits at least some contemporaneous uses, and that his view is not inconsistent with Aquinas'. Both chapters will be of great interest to historians of philosophy, ethicists and political philosophers alike. Indeed, all chapters in this volume are well-executed and will appeal to more than one type of reader.
Robert Bork died this morning at the age of 85 (notice from the University of Chicago Law School here). I noted just a few weeks ago the 25th anniversary of the Senate's rejection of Bork's nomination to the Supreme Court and some commentary on the legacy of the battle over his nomination. By any measure, Judge Bork lived a full life--service in the Marine Corps at the end of World War II, an academic career at Yale, private practice at Kirkland & Ellis, and government service as Solicitor General and a federal court of appeals judge. Bork was also an adult convert to Catholicism (he discussed his conversion in an interview here). In recent years, I would occasionally encounter Judge Bork and his friend Walter Berns dining at the University Club in Washington--anyone who wondered whether Western civilization is in a state of utter collapse needed only spend a few minutes with them to have such doubts put to rest. But Judge Bork had a lighter side, evinced in this 1996 piece on the benefits of a well-made dry martini to help put things in perspective. May he rest in peace.
Archbishop Charles Chaput of Philadelphia has an interesting and thoughtful piece at Public Discourse--partly a review of Travis Curtwright's new book, The One Thomas More (CUA Press, 2012)--on Thomas More and his legacy, including lessons for dealing with the HHS mandate.
Upon the passing of Senator Daniel Inouye of Hawaii (a war hero from WWII, leaving Senator Frank Lautenberg of New Jersey the sole remaining WWII veteran in Congress), Senator Pat Leahy of Vermont becomes the President pro tempore of the Senate and, I believe, the first Catholic to hold the position. Indeed, if Senator John Kerry is nominated and confirmed to be Secretary of State, the four offices in line of succession to the presidency will all be held by Catholics: Vice President Joe Biden, House Speaker John Boehner, Senator Leahy, and Secretary Kerry.
CORRECTION: David Gibson notes over at dotCommonweal that Senator Allen Ellender of Louisiana was President pro tem of the Senate (from 1971-1972). Ellender was baptized a Catholic but later listed himself as a Presbyterian and belonged to no church in his adult life. See Thomas Becnel, Senator Allen Ellender of Louisiana: A Biography (LSU Press, 1995), 149-50. But I take the modification to my earlier post.
Anabaptists have--not surprisingly--been plaintiffs in some prominent free exercise cases. See Wisconsin v. Yoder and U.S. v. Lee. Right here in Pennsylvania, a Mennonite-owned cabinetmaking company has filed suit against the HHS contraceptive mandate (Philadelphia Inquirer story here).
Following on earlier posts about the Duke Law and Contemporary Problems symposium on Stanley Hauerwas and law, the issue also includes a colloquy between Stanley and his former student Jeff Powell, then at DOJ's Office of Legal Counsel and now back on the Duke faculty. Among the many interesting observations, here are two bits. First, Stanley on the relation between law and moral practices, with some important implications, I think, for how law is taught in a Catholic university:
Now I thought at the time that lawyers resisted the charge that the law reflects politics or morality as a way to save what they were learning as skills of the law that gave them a sense of identity in a world in which moral identity was very ambiguous. They believed, “The law has an integrity that the rest of my life does not, and I’ll be damned to let it be ruined by recognizing that it reflects a community’s politics or morality.” So the law becomes an end in itself. That will kill you.
So fundamentally, if you are to be able to live out the life of the law you are going to need a more determinative community than the law, and that I worry is very hard to find. One of the temptations will always be to think that you can replace that community with theory. Theory is always a useful, imaginative exercise, but it’s not going to be sufficient unless you have a much more determinative set of practices that surrounds the law.
Second, in the Q&A, Charlton Copeland (Miami) asked the following question about liberalism (in the political theoretical, not politically partisan, sense), with Stanley's response below:
CHARLTON COPELAND: How might we avoid the shame that can result from being dependent upon the liberal state? If one were to read at least some of your work, there might be the sense of sadness for those whose lives or safety depend upon the liberal state in some important respects. How do we struggle though the sadness and not somehow let it become shame for those who depend upon the liberal state?
HAUERWAS: My problem has never been liberals. My problem has been Christians who are liberals and who don’t know it. I expect liberals to be liberals, and I’m deeply grateful for many of the kinds of developments that Stephen Macedo names. It’s good that we live in a social order where at least you have some legal recourse if you are arbitrarily arrested. The world as I found it is pretty damn good. But I need to name, as part of my service to it, what I take to be some of the profound challenges to our being able to live well together as human beings within the liberal rhetoric of our time.
Take abortion, for example. The real question is whether we as a people are confident enough in our lives to want to pass life on to future generations. Do we have such goods that compel our own lives that we think it sufficient to bring new life into the world, to say we want you to enjoy what we enjoyed? When I used to teach at Notre Dame, they had a course on marriage and family. Parents wanted the course in the curriculum to ensure that their kids would not do what the parents were afraid their kids were going to do when they went to college, but what they had already done in high school. I usually started the course with a question: What reason would you give for yourself or someone else to have a child? Students would answer that children are the manifestation of our love. Or that children are a hedge against loneliness. Or that we have children to please the grandparents. It’s amazing how inarticulate we as people are about what it means to have children, which I think can be a very basic moral presumption for any social order. And I think Christians can have something to say about that, and that would be of service within a liberal social order. If you think you are having children for your own happiness, good luck.
