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 20, 2008

Theology in Public Reason and Legal Discourse

By Susan Stabile

MOJ friend Russ Powell, of Seattle University School of Law, has just posted to SSRN a working paper, Theology in Public Reason and Legal Discourse: A Case for the Preferential Option for the Poor.  Here is the abstract:

"There is a strange disconnect between the formal understanding of the separation of religion from government in the United States and the almost ubiquitous use of religious language in political discourse, not to mention the web of complicated religious motivations that sit on or just below the surface of policy debates. This paper presents an argument for the relevance of the principle of the "preferential option for the poor" from Catholic social thought in public reason and legal discourse in order to explore the possible advantages of making the veil between religion and the secular state more permeable. As a case study, it proposes dialogue between Catholicism and complementary secular thought, including standpoint theory, outsider methodology, and law and economics to explore possibilities for more effectively ensuring justice for the poor and marginalized. (An earlier version of this article was presented at Law, Culture and the Humanities at Georgetown Law Center in 2007.)"

I heard Russ present this paper at Seattle's March 7 symposium on Religion, Pluralism and the Law (about which I posted here) and am very much looking forward to reading the piece.  It can be downloaded here.

An Easter thought

By Rick Garnett

From Pope Benedict XVI's Spe Salvi:

Man is worth so much to God that he himself became man in order to suffer with man in an utterly real way—in flesh and blood—as is revealed to us in the account of Jesus's Passion. Hence in all human suffering we are joined by one who experiences and carries that suffering with us; hence con-solatio is present in all suffering, the consolation of God's compassionate love—and so the star of hope rises.

Wow!  To paraphrase Bill McGurn, this is a "pope who knows how to pope."

"God and Man in China"

By Rick Garnett

Bret Stephens writes, in the Wall Street Journal:

The violent protests in Tibet that began last week and have since spread across (and beyond) China are frequently depicted as a secessionist threat to Beijing. But the regime's deeper problem in the current crisis is neither ethnic nor territorial. It's religious. . . .

Check it out . . .

An Easter Reflection and Catholic Legal Theory

By Robert John Araujo, SJ

            

Early in the New Year of 2008 I posed several questions about our project of Catholic Legal Theory and end times—end times not in the context of final world conflagration, but in the sense of the destiny of the human being. In short, my posting [HERE] was designed to raise questions and a potential discussion about the role that Catholic Legal Theory may play in matters eschatological and soteriological. At that time, I mentioned that I would not be offering answers, and no one else came forward with any thoughts in response to my posting. Now that we are at the beginning of the Easter Triduum, I thought I would provide readers with a few thoughts on the matters that I raised in my January post.

I would like to begin with the question Pilate poses to Jesus: “What is truth?” (John 18:38) It would appear that truth and the law have something in common in that witnesses called to testify pledge that they will bear witness to the truth, the whole truth, and nothing but the truth (so help them God). Jesus reminds us that he is the way, the truth, and the life—and no one goes to the Father except through Jesus. (John 14:6) Somehow, the truth of human existence and human destiny is that God sent His only son so that we who believe in Him will be saved and be granted eternal life. (John 3:16-18) Disciples are called to testify to this truth, and I suppose this would include we who call ourselves Catholic Legal Theorists.

During these next several days, we have an abundance of rich opportunities to reflect on the meaning of these passages from the Gospel of St. John in the context of our lives as people of faith, as disciples of Christ, and as those who have some opportunity through our calling to assist others in considering God’s truth about human destiny. I am not suggesting that it is the role of Catholic Legal Theorists to advocate for theocratic governance, but I am proposing that Catholic Legal Theorists, through their writing, teaching, and lecturing, can exercise a role in which the law that is enacted, enforced, and adjudicated might be disposed to complementing this truth about human nature and human destiny. While an imperfect institution, the law nevertheless can be a means by which more members of the human family have the opportunity to meet this truth and to fulfill the corresponding destiny that accompanies it—even if the only truth that can be realized is partial, i.e., there is something beyond the present moment toward which civil society can properly attempt.

In particular, we Catholic Legal Theorists might consider how our positions, callings, and responsibilities in life enable us to assist those with whom we work—be they students, colleagues, practitioners, jurists, legislators, administrators, or citizens (to mention a few pertinent categories)—in acknowledging that there just might be something beyond the present moment in which a purer form of justice—right relation with one another and right relation with God—is an objective worth seeking through the mechanisms of the law that we help shape and implement.

Considering the holy season in which we find ourselves and our belief in the one who came to save us all, might we be resolved to assist ourselves and others in the pursuit of this truth that is of God and His son? And if this be our resolution, surely the one whom we commemorate and celebrate in the event of Easter may well be disposed to take care of the rest so that the hope and promise of this season is fulfilled and the truth He is will be accepted by more of our fellow pilgrims in this world as we await and prepare for the next.

A blessed Easter to one and all.     RJA sj

Can the Law Educate? If so, how?

By Michael Scaperlanda

I received the following from a law student, and I think the student's profound questions go to the heart of our project at MOJ.  Can the law educate?  How can it educate?  How should it account for human weakness, sin, and the Fall?  I would hope that MOJ authors and readers of all political stripes will take a stab at an answer.

Here is the email:

I just got done reading this article by David Mamet (a playwright who uses the word "f--k" anytime he needs a syllable filled in) about his conversion from liberalism to conservativism.

Reading the article, the thing I'm struck by most is just how quietly reasonable the whole thing is. I mean, essentially what he says is that liberals are always forgetting that people are too fallen for government to do much since everyone seeks his or her self interest. Why should we not create a system in which each person pursuing his or her self interest (what they will do anyway) will create the best outcomes?

I actually kind of buy all of that. I do believe that that is how people will behave most of the time (if any one thing is plainly universal, it’s the fall). BUT a Thomistic view of the law is precisely that law SHOULD be a school (contra Mamet) and not just a marketplace; that it has a teaching mechanism about what is valuable and what is good; that this mechanism is invaluable in helping people to rise above this base self interest and become good.

So then, realizing that this is no small question, what to do? It seems wise to create a system that accounts for human beings acting as we know they will act (concupiscence dictates that, this side of paradise, we can count on this truth). But if that action is not the way people should act, is it good to create a system that relies on and glorifies this self-interest seeking? And is it good to sacrifice law's educational role in order to create a system that works relatively well? Do we expect people to act in accord with original sin, as Mamet suggests, or do we give opportunities for them to rise above it, realizing it may not happen at all?

A final note about how flawed our system of self interest is. I just got done reading a case for Business Associations about Henry Ford. Turns out Ford wasn't worried about profits, but really just wanted to make cars affordable, give people jobs at good wages, and get cars into every home. He got sued by his own shareholders for not seeking his own - and, as a result, their - interest. And they won, despite the fact that they were making tons of money anyway.

Anyway, this juxtaposition (knowing how people will act v. teaching them not to act that way) really struck me. And I'm not sure what to do with it. Any thoughts would be appreciated.

Paul Scofield RIP

By Michael Scaperlanda

LONDON (AP) — Paul Scofield, the towering British stage actor who won international fame and an Academy Award for the film "A Man for All Seasons," has died. He was 86.

Scofield died Wednesday in a hospital near his home in southern England, agent Rosalind Chatto said. He had been suffering from leukemia.

Scofield made few films even after the Oscar for his 1966 portrayal of Tudor statesman Sir Thomas More. He was a stage actor by inclination and by his gifts — a dramatic, craggy face and an unforgettable voice that was likened to a Rolls Royce starting up or the rumbling sound of low organ pipes.

Even his greatest screen role was a follow up to a play — the London stage production of "A Man for All Seasons," in which he starred for nine months. Scofield also turned in a performance in the 1961 New York production that won him extraordinary reviews and a Tony Award.

"With a kind of weary magnificence, Scofield sinks himself into the part, studiously underplays it, and somehow displays the inner mind of a man destined for sainthood," Time magazine's said.

Actor Richard Burton, once regarded as the natural heir to Laurence Olivier and John Gielgud at the summit of British theater, said it was Scofield who deserved that place. "Of the 10 greatest moments in the theater, eight are Scofield's," he said.

Scofield was an unusual star — a family man who lived almost his entire life within a few miles of his birthplace in southern England and hurried home after work to his wife and children. He didn't seek the spotlight, gave interviews sparingly, and at times seemed to need coaxing to venture out, even onto the stage he loved.

For the rest.

Wednesday, March 19, 2008

More on the California homeschooling decision

By Rick Garnett

Several of us blogged, a few weeks ago, about the decision of a California state court involving homeschooling.  Over at "On the Square", Joe Knippenberg has this detailed post and update.  A taste:

In the end, there’s no good substitute for a law that explicitly acknowledges and civilizes the right of parents to educate their children at home, subjecting homeschooling to reasonable regulation to see that children are prepared for productive lives as citizens. I have no doubt that the vast majority of homeschooling families could produce results that are more than satisfactory.

I also have no doubt that a law generally providing for homeschooling—religious or secular—is preferable to an arrangement that requires judges or educational administrators to examine a family’s religious beliefs in an effort to determine whether they justify a free-exercise exemption from compulsory attendance laws. More than anything else, we don’t want access to legal rights or privileges dependent upon a secular official’s theological or doctrinal determinations. That sounds too much like establishment.

My advice to California homeschoolers is to return to the first principles of republican self-government. That means recurring first to the politically responsible branches and above all to the legislature. Make the case for amending California’s compulsory education law to accommodate the rapid growth—in the state and across the nation—of homeschooling. Build coalitions. In the face of likely opposition from teachers’ unions, it won’t be easy. But think of it as a lesson in active and responsible citizenship. Your kids will appreciate it.

Gorbachev prays at St. Francis's tomb

By Rick Garnett

I thought this story was fascinating.  Peter Robinson writes:

Whenever Ronald Reagan would mention his suspicion that Mikhail Gorbachev was a secret believer, everyone on the White House staff would scoff, thinking the president naive. When I had the opportunity to speak to Gorbachev a couple of years ago, however, I found myself concluding that Reagan had been onto something after all. Why, I asked, had Gorbachev refrained from putting down the revolution of 1989, just as Khrushchev had put down the Hungarian Revolution of 1956 and Brezhnev had put down the Prague Spring of 1968? "Because of something I shared with Ronald Reagan," Gorbachev replied. "Christian morality."

Now the last leader of the Soviet Union has spent half an hour on his knees at the tomb of St. Francis. From the London Telegraph:

Mikhail Gorbachev...has acknowledged his Christian faith for the first time, paying a surprise visit to pray at the tomb of St Francis of Assisi.

Accompanied by his daughter Irina, Mr Gorbachev spent half an hour on his knees in silent prayer at the tomb.His arrival in Assisi was described as "spiritual perestroika" by La Stampa, the Italian newspaper.

"St Francis is, for me, the alter Christus, the other Christ," said Mr Gorbachev. "His story fascinates me and has played a fundamental role in my life," he added.

"We deem it the central revelation of Western experience," William F. Buckley wrote in 1960, "that man cannot ineradicably stain himself, for the wells of regeneration are infinitely deep."

"Corporate Religious Speech"

By Rick Garnett

My student at Notre Dame Law School, Julie Baworowsky, has posted on SSRN an interesting paper which she wrote for my Freedom of Speech course.  The paper is called "From Public Square to Market Square:  Theoretical Foundations of First and Fourteenth Amendment Protection of Corporate Religious Speech."  It engages, among other things, the work of MOJ-er Rob Vischer, and touches on many of the conversations we've had here over the years about institutional autonomy and associational freedom.  Check it out . . .

Words of Shame, Hard Truth, and Even Anger are Not the Same as Words of Hate

By Greg Sisk

For Catholics, and especially for those of us who are lawyers, we always remember the words of St. Thomas More as he was led to his execution: “I die the King’s good servant, but God’s first.” A Catholic certainly may and indeed should be a patriot, but he or she may never elevate nation above God or blind his or her eyes to national sin.

Thus, it is right and proper to express shame when it is warranted. We all are ashamed of our national history of racism. We all are ashamed that the most dangerous place for a baby in this country is in his or her mother’s womb. I think we all should be ashamed that our nation abandoned the people of southeast Asia in the spring of 1975, condemning millions to death, hundreds of thousands to exile, and millions more to tyranny. I think we all should be ashamed that when genocide stalked through Rwanda in 1994, our nation (and the rest of the world as well) did nothing. I’m sure we all could add further to this Hall of Shame. To love our country and to be proud of America does not mean that we deny or forget the occasions on which we were ashamed of our country.

In this same way, and on these same subjects, we as people of faith are called to speak the truth, including saying hard things about the path our nation has taken, statements that may not always be well-received by our listeners. In so doing, we of course have to be careful not to assume that our opinion is always consonant with the Truth. We must maintain some humility. And we must always resist any temptation toward deception or manipulation. If for tactical political reasons we tell lies designed to generate malice against our political opponents, we sin greatly. Whether the lie is that all liberals are traitors to their country or that a white supremacist government manufactured the AIDS virus to kill blacks, we cannot tolerate the lie and must speak forcefully against it.

Even the righteous anger of the prophet has its place, to serve as a catalyst, to make it impossible to hide from the truth or remain silent. But anger, like fire, is a dangerous tool, that must be used sparingly and always with careful control. For anger so easily may descend into hatred. The person whose constant companion is anger will likely fall into one or the other sins of despair or hate.

And hatred is something very, very different from any other form of expression. Hate is so destructive and so contrary to our Faith that it cannot be justified and should not be presented as tolerable or understandable.

In that respect, consider the following statement by Dr. James Cone of New York’s Union Theological Seminary:

Black theology refuses to accept a God who is not identified totally with the goals of the black community. If God is not for us and against white people, then he is a murderer, and we had better kill him. The task of black theology is to kill Gods who do not belong to the black community. . . . Black theology will accept only the love of God which participates in the destruction of the white enemy. What we need is the divine love as expressed in Black Power, which is the power of black people to destroy their oppressors here and now by any means at their disposal. Unless God is participating in this holy activity, we must reject his love. (Quoted in William R Jones, "Divine Racism: The Unacknowledged Threshold Issue for Black Theology", in African-American Religious Thought: An Anthology (Cornel West & Eddie Glaube, eds., 2004)

How should we read these words, if not as words of anger that have devolved into hatred? Rev. Jeremiah Wright credits Cone as the one who “systematized” the black liberation theology that Wright has espoused (here and here). Given that context, and having heard Rev. Wright’s words broadcast around the nation and remembering the earlier episode of his embracing of Minister Farrakhan of the Nation of Islam as “truly epitomizing greatness,” should this not merely be denounced but also disowned?

In powerful contrast with the disappointing and dispiriting remarks to which we recently have been exposed, we have the words of Martin Luther King Jr.:

I’ve seen too much hate to want to hate myself; hate is too great a burden to bear. I’ve seen it on the faces of too many sheriffs of the South—I’ve seen hate. In the faces and even the walk of too many Klansmen of the South, I’ve seen hate. Hate distorts the personality. Hate does something to the soul that causes one to lose his objectivity. The man who hates can’t think straight; the man who hates can’t reason right; the man who hates can’t see right; the man who hates can’t walk right. And I know now that Jesus is right, that love is the way. And this is why John said, “God is love,” so that he who hates does not know God, but he who loves at that moment has the key that opens the door to the meaning of ultimate reality.

Now those are words to live by!

Greg Sisk

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