It was a while in the making, but Brennan and Brewbaker's Christian Legal Thought: Materials and Cases will be published momentarily -- that is, any day now -- by Foundation Press, well in time for Fall adoption. Here is Foundation's description of the book:
This text examines law and legal institutions through the broad lens of Christian thought, both Catholic and Protestant. The book addresses methodological issues in Christian legal scholarship (What makes legal thought “Christian”?); the relevance of Christian theological doctrines—such as creation, the Christian conception of the human person, the kingdom of God, and the natural and divine laws—for reflection on law; the significance of historical context for Christian legal thought; Christian reflection on important jurisprudential issues and concepts, such as equality, justice, rights, and the rule of law; and Christian perspectives on various legal subjects, such as contracts, torts, and property. The point of the book is less to prescribe what a Christian legal theory should entail in the way of outcomes than to use the Christian faith as a lens through which to understand, and reflect critically upon, law and legal institutions.
Here is where the book's table of contents can be viewed and complimentary copies requested from the publisher.
It was a joy and an honor to collaborate with my dear friend and MOJ-friend Bill Brewbaker, William Alfred Rose Professor of Law at the University of Alabama School of Law, in writing this book. The process itself was inspiring to the authors, and both Bill and I hope that the finished product reveals something of what the breadth of Christian thought offers to those who think or believe that law is something we should care about and that la should, in turn, convey our care to this needy world of ours. Not a book about "law and religion," Christian Legal Thought: Materials and Cases is a book, for use in law school and other classrooms, about what Christianity, Catholic and Protestant, can tell us -- and has already told us -- about the ends and the limits of law. The book does not shy away from differences between Catholic and Protestant thought, nor from historical and ongoing disagreements internal to the Catholic tradition or to the several Protestant denominations discussed; it does, however, look for common ground both among Christians and between Christians and contributors to our (legal) culture who are not Christians.
I'll blog later more about the topics and themes of the book than the table of contents can reveal. For now, though, I'd like to thank, on Bill's and my own behalf, all those MOJ bloggers, MOJ friends, and MOJ readers, as well as many, many others, for the guidance and encouragement they gave us in what turned out to be a more challenging project than we had imagined at its outset. The book's index records just some of many familiar names, many of them familiar from MOJ itself, whose work in the Christian-legal-thought vineyard we have tried to harvest for the purposes animating our book. We will be grateful to receive suggestions, as well as notices of omission or of corrigenda, for the next edition. The current edition is obtainable not only from Foundation but also, of course, from here.
Finally, at least for now, I should add that Foundation will be publishing a thick Teacher's Manual to accompany the book. Although running a little behind the book in the production schedule, the Manual will be out very soon. We wrote the Manual with the goal, among others, of making it easier for those who otherwise might hesitate to offer a course in Christian legal thought.
In America magazine, Bill McGarvey has an optimistic essay suggesting that the Trump administration is inspiring a defense of institutions that the public had long taken for granted:
The good news? These unprecedented executive actions [by President Trump] have inspired equally unprecedented public outrage. Countless people—men, women, young, old, from every imaginable background—have taken to the streets to protest. People who have never been activists before are getting involved. In this time of institutional diminishment, it has taken the threat to stable institutions that we take for granted for millions to awaken and rise up in their defense.
I hope he's right, but I think it's too early to tell. One concern I have is that the political movement that ultimately wins out over President Trump's populist nationalism will build on Trump's political strategy and simply replace his substantive policy ideas and worldview. Trump succeeded, in part, by promoting a cynical view of institutions, which, in his rhetoric, are largely indistinguishable from "the establishment." Will the Democratic Party's next standard-bearer beat out his or her rivals with a full-throated defense of institutions, or by using Trump's tactics ("the system is rigged") to accomplish different policy goals while doubling down on cynicism toward institutions? The case for institutions may be too nuanced to get much oxygen in a political climate where outrage will be the dominant element for the foreseeable future.
Prof. Bradley Lewis (CUA) shared with me what I thought was an excellent (and succinct) discussion of the concept of "the common good" in modern Catholic Social Thought. Download Lewis on the Common Good (1). Highly recommended.
John Allen has a piece on what he calls Pope Francis's "puzzling" remarks on religious freedom in China. Here's a bit:
In the English translation provided by El Pais, here’s what the pope is quoted as having said: “In China, churches are crowded. In China they can worship freely.”
In the original Spanish, the pope’s statement wasn’t quite that bald. What he said was, “En China las iglesias están llenas. Se puede practicar la religión en China,” which translates as, “In China the churches are full … one can practice religion in China.”
There is, of course, a big difference between saying religion can be practiced someplace, which can imply despite difficulties and dangers, and claiming that one can “worship freely” there.
Nevertheless, the fact that Pope Francis appeared to suggest that the climate for religious freedom in China is basically positive likely will irritate, even outrage, people who know the reality, and who have been working on behalf of the country’s religious minorities.
I hope there will be some clarification coming from the Holy See, or ideally from the Holy Father himself. It is not merely puzzling, but simply false, to state that "[i]n China they can worship freely." (Not only is the freedom of religion -- correctly understood to include religiously motivated action in the public square -- not protected, not even the mere "freedom of worship" is in fact respected.) The Spanish statement -- "one can practice religion in China" -- is, I suppose, technically true, in the sense that one can always practice religion in totalitarian or tyrannical societies . . . if one is willing to be punished for it. Allen concludes:
Of course, Francis may be engaged in that time-honored Vatican strategy of playing the long game, playing down provocative rhetoric in order to advance the relationship with Beijing, ideally affording Rome greater leverage to achieve positive change. Further, the pope may be concerned that Christians on the ground in China would be the ones to pay the price should he indulge in finger-pointing and denunciations.
Still, those Catholics in China these days behind bars, or who fear ending up there, may be forgiven for wishing that, once in a while, their pope would speak publicly and clearly about their sacrifice.
Whenever that day may be, it certainly wasn’t the El Pais interview.
If you're a lawyer in need of an optimism boost about your chosen profession, I have an op-ed in today's Star-Tribune that might help:
[I]n the end, Americans like to poke fun at lawyers only until they need one. Few of us will ever sue the president of the United States. Much of our work takes place in a small office, a crowded courtroom, or across the table from a client who may be feeling scared, hopeless, and invisible. If we take the rule of law seriously, we must be cognizant not only of an overreaching executive branch, but of an overreaching landlord, employer, business partner, or prosecutor.
Lawyers, at their best, help remedy disparities before the law. Those disparities can stem from imbalances in political power, social standing, financial resources, or information. At a time in U.S. history when we cannot seem to agree on much, committing to a level playing field before the law may be a great place to start.
Today I presented a lecture at St. Joseph's University titled "Catholic Universities and our Polarized Nation." I focused on how we can model the concept of civil friendship on campus and beyond. Among several attributes of a commitment to civil friendship, I highlighted the need for coherence in our political engagement:
Citizens may disagree on a given issue, but even those who do should be persuaded of the internal logic and consistency of the worldview and values that animate our positions. If critics perceived that Catholics were willing to move heaven and earth to stop same-sex marriage, but were not willing to lift a finger to roll back no-fault divorce laws, the perception would be that our objective is not to defend the institution of marriage, but rather to keep gays out of it. Opponents of Trump who deemed him unfit for office because of his treatment of women but rushed to defend President Clinton against the women who accused him of sexual misconduct are vulnerable to charges of incoherence and hypocrisy. A lack of coherence in our political engagement doesn’t just make our advocacy less effective – it promotes cynicism, suggesting that politics is just about power, not about reason or principle.
The prompted a line of questioning from students and faculty after the lecture, asking how our media consumption can promote cynicism and make coherence more difficult. One student even asked me which sources I rely on for news if I'm trying to maintain a nuanced, evenhanded understanding of events. In these and other exchanges, I have observed a strong desire among students to be engaged with the world but confused about how to sort through media perspectives/bias in ways that don't boil down to picking a side. The delegitimizing effect of (real or perceived) bias is exacerbated by the social media platforms through which we are encountering the news -- every link served up with a snarky comment thread. In past decades, we may have been too naïve in our consumption of news; now, we're raising a generation inclined to believe that everyone reporting the news has an angle, so our choices are either to stop paying attention or choose camps and stay there. I think we need to devote sustained attention to this problem -- not just the problem of media bias, but the problem of reacting to media bias by dismissing "mainstream" sources of news as tainted to the point of worthlessness. This problem did not begin with Donald Trump, but he is taking it to a new level with sweeping #fakenews pronouncements. (Promoting widespread distrust in our institutions may prove to be the most destructive legacy of President Trump. Can #fakelaw be far behind #fakenews?)
Savvy media consumption is key to a coherent worldview and the cultivation of empathy for those with different perspectives and life experiences. If we're going to tackle our society's polarization head-on, that will have to be at the center of the conversation.
Michael has already quoted a passage from Judge Neil Gorsuch's chapter in the Finnis festschrift (Reason, Morality, and Law (Keown & George, eds. 2013)). Here's another one that caught my attention (419-20):
Not only does Finnis help us to see that the traditional intent-knowledge distinction in law bears analytical power overlooked by its critics. He also helps expose the undergirding normative reasons for the law's traditional cognizance of intention. He reminds us, for example, that some of the law's harshest punishments are often (and have long been) reserved for intentional wrongs precisely because to intend something is to endorse it as a matter of free will--and freely choosing something matters. Our intentional choices reflect and shape our character--who we are and who we wish to be--in a way that unintended or accidental consequences cannot. Our intentional choices define us. They last, remain as part of one's will, one's orientation toward the world. They differ qualitatively from consequences that happen accidentally, unintentionally....
This is a view, of course, that has long and deeply resonated through American and British jurisprudence, and indeed the Western tradition. It is precisely why the law treats the spring gun owner who maims or kills intentionally so differently from the negligent driver whose conduct yields the same result. As Roscoe Pound once put it, our "substantive criminal law is," at least at minimum, "based upon a theory of punishing the vicious will. It postulates a free agent confronted with a choice between doing right and doing wrong."
And then from Professor Finnis's reflection on Judge Gorsuch's chapter (564-65), which comments interestingly on the tendency of tort law to wipe out the distinction between intention and foreseeability:
The underlying point is that--put at its briefest--what is intended so figures in the acting person's proposal that it is adopted--chosen and made his or her own, as end and/or means--in the adopting of the proposal, whereas the side effects, however foreseeable and foreseen and perhaps very 'directly' caused, are not adopted, but only accepted or permitted.
The Lewis and Clark Law Review, with the guidance of Professor Jim Oleske, has put together a very nice symposium on Law and Religion in an Increasingly Polarized America. Very interesting papers by Kathleen Brady, Kent Greenawalt, Jessie Hill, Andy Koppelman, Ron Krotoszynski, Chip Lupu and Bob Tuttle, Jim Oleske, and Robin Wilson.
Like Kevin, I have a short piece up at First Things on the Gorsuch nomination. A bit:
So, this is 2017: A few days after issuing an incompetently executed, morally dubious, and in many ways misguided executive order on immigrants and refugees, the president nominated an outstanding and unassailable jurist to succeed Justice Antonin Scalia. . . .
It is unfortunate, in a way, that the nomination of such a fine judge comes in the context of a silly prime-time announcement ceremony, in the midst of other controversies, introduced by such a clunky, self-referential speech by the president. Judge Gorsuch is a gifted, eloquent writer and a thoughtful, careful judge. He will not regard himself as beholden to the president who nominated him but will instead, I am confident, do his best to decide in accord with the law and his own formation, education, and values. . . .
