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.

Sunday, September 18, 2005

More on the Murray conference

By Rick Garnett

Thanks much to Mark for his detailed post about Friday's John Courtney Murray conference at Villanova.  It was a treat to spend time in real-space conversations with so many MOJ folks, to hear and chat with Judge Noonan, to meet new people, etc.  Thanks also to Mark for his leadership and energy on this and so many other important matters.

For me, having Michael Baxter, Kathleen Brady, and Tom Berg -- who have written a lot and well on these matters -- in the group listening to my reflections on Murray, church autonomy, and the libertas ecclesiae principle was very helpful.

I hope that Tom Berg will post a version of his paper on Reinhold Neibuhr.

Kenneth Grasso gave a paper, "The 'fundamental ambiguity' of modern times:  John Courtney Murray on Catholicism, Modernity, and the American Proposition," that was particularly provocative, I thought.  Grasso argued (contra Baxter, perhaps?) that Murray was not as blind to those features of the American experience and founding that are in tension with Catholicism as many of Murray's friends and detractors have suggested.  That is, Grasso suggested, it is not really the case that Murray was under any cheerleader-type illusions about the providential nature of the American founding, or of America's constitution, or of contemporary liberal democracy.  In Grasso's telling, it is almost like Murray was a caricature of the Straussians, who have one message for public consumption and another for the elect.  It seemed to me that Grasso was contending that Murray's project was not a single-step one -- i.e., "show that America is providential and that Catholicism and American Democracy are compatible" -- but rather a two-step project of retrieval:  First, convince people to look to the founding, and to the authentic Western liberal tradition (as opposed to the Jacobin version of liberalism); second, emphasize (Berman-style) that the Western liberal tradition -- which the founders might not have got quite right -- really has its roots and foundation in the natural law tradition, the dignity of the human person, and the Freedom of the Church. 

Perhaps, if Professor Grasso is reading, he can tell us if I have this right.

I should also note that Susan Stabile provided a very clear and helpful explanation of how Murray -- given what we know of his role in the Massachusetts contraception debates -- would likely have approached the law-and-abortion matter.  That is, he would not have opposed regulating abortion on the ground that it was a matter of "private morality" -- he would clearly have thought it was a matter of "public morality" -- though he might nonetheless have had reservations about the wisdom of banning abortion.  (I suggested, in the Q & A, that whatever Murray's take on the "should abortion be banned?" question, he would -- I hope -- have supported overturning Roe, simply on rule-of-law and "it's better if people talk through hard problems" grounds.).

Religious tribunals in Canada

By Rick Garnett

I'm intrigued by this story, coming out of Canada, about "faith-based tribunals."  In my former life as a practicing attorney, I had some interactions with the workings of "beit din" tribunals, or rabbinical courts.  It appears, from the article, that the province of Ontario has "allowed Catholic and Jewish tribunals to settle family law matters on a voluntary basis since the adoption of the Arbitration Act in 1991.  The practice got little attention until some proponents of Sharia demanded the same rights."  Last week, though, the province's premier, Dalton McGuinty, announced that "he would ban all religious arbitration in Canada's largest province."

On Sunday, McGuinty said religious arbitrations "threaten our common ground," and promised his Liberal Party government would soon introduce legislation to outlaw them in Ontario.

"Ontarians will always have the right to seek advice from anyone in matters of family law, including religious advice," he told The Canadian Press. "But no longer will religious arbitration be deciding matters of family law."

Opponents of Sharia were thrilled by McGuinty's decision.

"I think our voice got heard loud and clear," said Homa Arjomand, a women's rights activist who organized a series of anti-Sharia protests worldwide last Thursday.

Anti-Sharia critics have said the country's 750,000 Muslims come from different backgrounds and strains of Islam and that women are not treated equally under the system, which they say runs counter to the Charter of Rights and Freedom, Canada's bill of rights.

I had a chance to study again Harold Berman's wonderful book, Law and Revoluion, which -- among other things -- emphasizes the integrated, pluralistic, polycentric nature of the Western legal tradition, which includes the canon law of the Church, the royal law of the major traditions, the urban law of newly emerging cities, feudal law, manorial law, the law merchant, etc.  If the "common ground" of the Western legal tradition has always been as rich, diverse, and varied as Berman shows, then I cannot help wondering why a liberal democracy today cannot make room for religious tribunals, so long as no one is compelled to employ them.

That said, I do not know enough about Sharia to know whose view -- and competing views are described in the story -- of it is the better one. 

Rick

John Courtney Murray Lives!

By Rick Garnett

I think the major conclusion of our program on the legacy of John Courtney Murray SJ for law and politics (held here at Villanova on Friday) is that Murray remains of considerable importance today for our thinking about the relationship between Catholicism and American Democracy, although there were lots of different opinions about the nature and extent of his relevance.  MOJers Rick Garnett, Patrick Brennan, Fr Araujo and Susan Stabile all participated as presenters or commentators and will, I'm sure, be continuing the discussion here on MOJ and by posting drafts of their articles (which will be published in the Journal of Catholic Social Thought.) But I'd thought I'd report a bit on some of the papers. We kicked off with a paper provocatively subtitled "Notes by an Anarchist on Murray's Conception of Law, Politics, the State and Religious Freedom," by Michael Baxter, a Notre Dame theologian and member of the Catholic Workers in South Bend. Mike displayed an impressive grasp of the law of Church and state, and more patience than I expected, in view of some of his earlier writings on Murray, for certain aspects of Murray's thought, notably the way Murray reads the First Amendment as a way of ensuring the libertas ecclesiae and regards the nonestablishment norm as acceptable so long as it is applied in an accomodationist manner. What he profoundly disagrees with, however, is Murray's argument for the providential nature of the American founding, which Baxter regards as incorporating the ideology of American exceptionalism and Protestant providentialism into a kind of Catholic providentialism, which is just wrong. Murray, he argued,  created a new myth in order to show that there was no conflict between being a Catholic and an American, and smoothed over conflicts between the radical Christian message and liberalism. This myth, Michael concludes, undermines the Church's fundamentally oppositional stance to the Leviathans of state and corporation. Rick Garnett picked up some of these themes in his typically excellent paper. He argued that the notion of the libertas ecclesiae, founded in the Investiture Controversy, not only is the root of the Western desacralization of the state and of constitutionalism, but of the belief that the Church has a vital, independent identity as an entity that has more than a merely private role in society.  The First Amendment, however, increasingly is read to treat religion as merely a matter of individual preference (and individual right), confining it to the private sphere, and constraining its influence on public debate and public action. Rick thus shows how much has changed since Murray tried to link the libertas ecclesiae with the First Amendment, when the legitimacy of the ecclesia as something that stands between the public power and the people was less in question than it is today. Murray thus presents an alternative reading of the First Amendment, and a more attractive one. On the same panel, Fr Robert Araujo emphasized Murray's method-- his commitment to reasoned discourse and to tolerance of discordant views (which underlined, of course, his influential views of religious freedom.) In responding to both Rick's and the Father's papers, I emphasized the new sharpness of the religious/secular polarities in current discourse, the non-negotiabilty claimed by some for certain moral positions, and the revived sense of tension between tradition and democracy, and wondered whether Murray's method, his instinct for agreement and his providentialism are still helpful today. In a subsequent post, I'll report on Judge Noonan's wonderful keynote speech. And I invite my fellow MOJers to chip in with reports or comments of their own. Ditto for our other participants as guest bloggers.

-Mark

Saturday, September 17, 2005

Abortion Revisited

By Michael Perry

New York Times
September 18, 2005

Under Din of Abortion Debate, an Experience Shared Quietly

By JOHN LELAND

This is worth reading ...  click here.
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Recommended Reading

By Michael Perry

New York Times
September 18, 2005

Forgetting Reinhold Niebuhr

By ARTHUR SCHLESINGER JR.

THE recent outburst of popular religiosity in the United States is a most dramatic and unforeseen development in American life. As Europe grows more secular, America grows more devout. George W. Bush is the most aggressively religious president Americans have ever had. American conservatives applaud his "faith-based" presidency, an office heretofore regarded as secular. The religious right has become a potent force in national politics. Evangelicals now outnumber mainline Protestants and crowd megachurches. Billy Graham attracts supplicants by the thousand in Sodom and Gomorrah, a k a New York City. The Supreme Court broods over the placement of the Ten Commandments. Evangelicals take over the Air Force Academy, a government institution maintained by taxpayers' dollars; the academy's former superintendent says it will be six years before religious tolerance is restored. Mel Gibson's movie "Passion of the Christ" draws nearly $400 million at the domestic box office.

In the midst of this religious commotion, the name of the most influential American theologian of the 20th century rarely appears - Reinhold Niebuhr. It may be that most "people of faith" belong to the religious right, and Niebuhr was on secular issues a determined liberal. But left evangelicals as well as their conservative brethren hardly ever invoke his name. Jim Wallis's best-selling "God's Politics," for example, is a liberal tract, but the author mentions Niebuhr only twice, and only in passing.

[Read on ...  Click here.]
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Lee on O'Donovan

By Rick Garnett

Kevin Lee, over at Lex Christi, has this thorough post -- more of a book review really -- of Oliver O'Donovan's new book, The Ways of Judgment.

In this work, O’Donovan builds on the very influential project he began in The Desire of the Nations (Cambridge, 1996) (Reviewed in First Things, Nov. 1997). In that book he sets out an agenda for political theology, wherein questions about the nature of politics are put into play by the concerns of Christian theology. In this new work, he focuses on developing a Christian political theory beginning from the political questions and searching the resources that Christianity has to offer to them. . . .

Lee writes:

One, no doubt controversial conclusion that O’Donovan argued in an earlier essay (“Government as Judgment” in Oliver and Joan O’Donovan eds. Bond of Imperfection (Grand Rapids, Eerdmans Publishing Company, 2004) 207-224) is that in judging a statute, a court is bound by an obligation to judge justly, even when that judgment is not derived from the Constitution or case law. Why? Because these sources of law are illegitimate when they are not just.

I have not read "Government as Judgment", but I'd want to know more about the criteria O'Donovan employs to decide whether "the Constitution or case law . . . are not just."  A judge, I take it, does judge "justly", even when applying a badly reasoned judicial decision, or an unwise provision of the Constitution, so long as that application is consistent with rule-of-law norms, broadly understood.  It also seems to me that a judge judges "justly" when he refuses to invalidate even an unjust (but enacted in a procedurally valid manner) law, if there are no legally sufficient grounds for invalidating that law.  Both of these judgments seem different than, say, actually applying, and giving force to, an unjust law.  I'd welcome Kevin Lee's view on this . . .    He continues:

I think the value of O’Donovan’s work for Christians who teaching law is the breadth of his thought. He can help Catholic see the need to move beyond the narrow confines of Catholic Social Teaching to embrace the fullness of the Catholic intellectual heritage, of which social thought is only a by product. At its root, the Christian faith is not a moral teaching at all. It was a modern project to attempt to view it as such. Catholic thought is an orientation toward the world that holds foundational beliefs for metaphysics, epistemology, moral theory, and political thought.

I think Lee is right that those of us engaged in thinking about Catholic legal education, and Catholic legal theory, need to be careful about reducing the Church's contribution to the Catholic Social Thought tradition.  There's a danger, I suppose, of falling into a trap where one group of us -- perhaps a more "left"-leaning group -- use CST and another group -- perhaps a more "right"-leaning group -- use St. Thomas.  Lee is right:  "the Christian faith is not a moral teaching at all. It was a modern project to attempt to view it as such. Catholic thought is an orientation toward the world that holds foundational beliefs for metaphysics, epistemology, moral theory, and political thought."

So . . . what should be our reading list for smart law students at Catholic law schools who seek to "embrace the fullness of the Catholic intellectual heritage"?   I know we've exchanged Catholic Legal Theory reading lists on this blog over the past few weeks, but what if we were, say, designing a required course for a meaningfully Catholic law school, and wanted five key texts.  What would they be? 

Rick

Friday, September 16, 2005

Conservative Christian Law Schools

By Michael Perry

[From PBS's "Religion & Ethics" program:]

Conservative Christian Law Schools
September 16, 2005   Episode no. 903
http://www.pbs.org/wnet/religionandethics/week903/feature.html

BOB ABERNETHY, anchor: Gay marriage and the words "under God" in the Pledge of Allegiance are two of many issues on which conservative Christians have strong views. Many of them want to change public policy and the law to better reflect their faith and, to that end in the last decade, they have founded three conservative Christian law schools. There are now more than 2,000 graduates of those schools at work in private practice and in government and politics. Lucky Severson reports.

UNIDENTIFIED PROFESSOR (praying): Heavenly Father, thou has placed me in a church which thy Son has purchased with his own blood.

LUCKY SEVERSON: It's abundantly clear that this is not your typical law school. Each and every class at Regent University School of Law in Virginia Beach begins with prayer. And it doesn't end there. This is Dean Jeffrey Brauch.

Dean JEFFREY BRAUCH (Regent University School of Law): We are adding something in addition to what you would get in another law school, and that is Christian thinking on the substance of law and Christian thinking on how to practice law.

SEVERSON: There are about 500 law students at Regent. They learn the law of the land and also a higher law, based on conservative Christian interpretation of biblical principles. If there's a conflict, some might even turn down cases because of their religious beliefs.

(to student Nicole Jocobo): So who is the ultimate judge, as far as you are concerned?

NICOLE JOCOBO (student, Regent University School of Law): God.

SEVERSON: Nicole Jocobo is a third-year student from Florida. Emily Joy Smith is also in her third year. She's from Georgia.

EMILY JOY SMITH (student, Regent University School of Law): I am going to view every perspective, every situation, every client that walks in my office through kind of glasses that are Christ-colored.

SEVERSON: Regent University was founded by Pat Robertson 20 years ago. The law school opened in 1996. Robertson says his overall plan was the Lord's idea -- a way to counter the country's drift toward what Robertson calls "unbridled hedonism" and restore society to what he says were its original Judeo-Christian values.

Reverend PAT ROBERTSON (founder, Regent University): The idea was to challenge the culture in the areas that are most important to people. The first, of course, was television, and then the theatre and journalism, and then, of course, beyond that was law, which has such a dramatic effect on everybody's lives.

SEVERSON: The law school boasts graduates working in all levels of state and federal government, also as judges, prosecutors, state representatives, lawyers for the FBI, CIA, and Justice Department. Former Attorney General John Ashcroft is now part of the Regent faculty.

Rev. ROBERTSON: I was just overwhelmed at the steamroller of the ACLU. And they were just getting away with murder. They were stripping our society of its religious symbolism all the way up and down the line.

SEVERSON: To combat the American Civil Liberties Union, Robertson founded the American Center for Law and Justice -- that's the ACLJ, not the ACLU. The ACLJ has argued and won several cases before the High Court, including the right to organize Bible clubs in public schools. Jay Sekulow, the chief counsel, has been asked by President Bush to help shepherd Judge John Roberts through the confirmation process. Sekulow considers himself a conservative Christian who thinks most law schools are too liberal.

JAY SEKULOW (chief counsel, American Center for Law and Justice): Oh, I think there was a huge need for law schools that have a conservative judicial philosophy to become players in the law school area and the law school arena and to be able to train law students.

SEVERSON: Regent was the first of the conservative Christian law schools but not the last. In Michigan, the Ave Maria Catholic Law School was recently granted accreditation. And the Reverend Jerry Falwell is awaiting accreditation for his new law school at Liberty University. Many conservative Christians see this as a way of getting their values put into law. Others say it's a troubling erosion of the separation of church and state.

Professor Marci Hamilton is a constitutional scholar at the Cardozo School of Law in New York. She clerked for Justice O'Connor and describes herself as a conservative Goldwater Republican and a very religious Presbyterian. She says she once believed in religious liberty at any cost but became disillusioned with abuses in the name of religion.

Professor MARCI HAMILTON (constitutional scholar, Cardozo School of Law): They found their religious power, a cadre of them, conservative Christians. They have decided that the culture doesn't reflect their values, and so they are going to use a law school to inculcate their values.

SEVERSON: Does that trouble you?

Prof. HAMILTON: It's deeply troubling. What they've done is they've now blurred the lines -- forget the separation of church and state.

Dean BRAUCH: It's one thing to have an institutional separation between church and state, which is very important, but it's another thing to say there should be a separation between faith and law or faith and policy. I'm pleased that some of our graduates are going to go and impact public policy through their careers, you know. I'm glad that one of our graduates is running for attorney general in Virginia and may well be the next attorney general in Virginia.

BOB MCDONNELL (candidate, attorney general, VA, campaigning): How are you doing, sir? I'm Bob McDonnell, running for attorney general.

SEVERSON: His name is Bob McDonnell. He's a former lieutenant colonel in the army and has served as a delegate in the Virginia General Assembly. McDonnell personifies the mission of his alma mater.

MCDONNELL: I always try to do the best I can and make sure that my votes reflect the will of the people. But when it comes to certain absolutes like the right to life, the right to individual liberty, or my belief in, you know, what marriage ought to be, I'm going to try to do what I think is the right thing. It may not always be popular, but I think people elect you to be a person of principle.

SEVERSON: And behind Bob McDonnell there are other Regent law students whose religious beliefs drives them to change social policy. Roger Byron, a Naval Academy graduate, plans to go into government, maybe politics.

ROGER BYRON (student, Regent University School of Law): I would approach ROE V. WADE in that -- whereas the Supreme Court did make a decision to apparently legalize abortion that in fact is not a proper law. While the Supreme Court may have said it is one, it does not necessarily mean that it is one.

Prof. HAMILTON: I think there is something wrong if the primary value in the institution is not the rule of law. It is one thing to produce lawyers who will pass the bar and will be representative of a legal society. It's another thing to graduate lobbyists with a certain agenda.

SEVERSON: Hamilton wrote a controversial book called GOD VS. THE GAVEL after arguing successfully before the Supreme Court that Congress had given religious organizations too much power.

Prof. HAMILTON: We've been let down by our legislators who have not been filters; rather, they've been openings for religious groups to get whatever they ask for. What we need is to remind legislators that everybody is served when the common good is served.

Rev. ROBERTSON: It sounds cliché to talk about the struggle for the soul of America, but I do think that struggle has been going on. And I believe the more traditional people of faith seem to be winning some battles in this.

Dean BRAUCH: It's not our sole mission to send people out who are going to affect public policy. I also want men and women who are going to be great lawyers who would have been there to say something when Arthur Anderson or Enron or Tyco or those cases or the decisions made in those situations came up.

SEVERSON: But Dean Brauch is clearly pleased with the school's role in social policy -- proud of the graduate leading the fight for a constitutional amendment banning gay marriage in Arkansas. Other grads are defending traditional marriage in California.

Dean BRAUCH: Four of our graduates were representing -- represented Terri Schiavo's parents and seeking to keep her alive. And so I was very glad that on that issue, protecting life, there were Regent students there.

Prof. HAMILTON: But what was most interesting about that event was we soon found out between 70 and 80 percent of the American people thought Congress should have stayed out of the issue. What that shows, in my view, is that the conservative Christians may well have been at the apex of their power.

SEVERSON: Pat Robertson believes that the Supreme Court nominations are of crucial importance.

Rev. ROBERTSON: Over a hundred years the impact of the Supreme Court decision will be vastly greater than the impact of Osama bin Laden. He's a temporary annoyance who we are going to get rid of.

SEVERSON: If John Roberts is confirmed as chief justice, he'll be presiding over issues of great concern to Christian conservatives.

Mr. SEKULOW: But, I think, what is realistic on the abortion debate at the Supreme Court of the United States is going to be probably the partial-birth abortion case. I think that one is going to be up there either this term or next.

Prof. HAMILTON: I don't think the court is going to need to hold ROE V. WADE unconstitutional. I don't think they will. But it is very possible that Justice Roberts would legalize a ban on partial-birth abortion, and once that's the line that's drawn, ROE V. WADE is really just a symbol; it's not a right.

SEVERSON: And if Judge Roberts is confirmed, Jay Sekulow will be arguing one of the first cases before the court involving anti-abortion protestors. And there are two more important cases involving parental consent for teenagers seeking abortions and assisted suicide coming up. Lawyers on both sides are working overtime, and in the thick of it are conservative Christian lawyers.
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China, Religious Prosecution/Persecution, and Asylum

By Michael Scaperlanda

Rick and Rob have written about the Fifth Circuit's Li case, which held that Li would not be persecuted based on his religion if he were returned to China where he would face prosecution if he worshipped in a non-state registered church. 

In the case, the Immigration Judge (IJ) found Li's testimony credible and corroborated by state department findings that the Chinese government allows religious groups to operate only if the group advocates the communist doctrine of socialism.  Based on these facts, the IJ concluded that Li, who worshipped outside of these state parameters, would be subject to persecution if returned to

China

.

The Board of Immigration Appeals (BIA) agreed with the IJ that Li's testimony was credible but reversed on the ground that Li faced prosecution and not persecution if returned to

China

.  The Fifth Circuit affirmed the BIA's decision, concluding that the BIA factual determination - that this is a case of prosecution not persecution -  was a reasonable one. 

I don't know how the case was argued, but it seems to me that the court was confused.  There were no factual issues in dispute. The only issue was the legal conclusion to be drawn from the facts: given the facts would Li face persecution (or prosecution) if returned?  And, that question turns on the interpretation of persecution. 

The BIA defines persecution as "harm or suffering that is inflicted upon an individual in order to punish him for possessing a belief or characteristic a persecutor seeks to overcome" in one of five areas ("on account of"), including religion.  Using this definition it seems clear that Li would suffer persecution if returned to

China

.  The Chinese government is interested in channeling all religion through state supervised filters and making these religions tools of the Communist propaganda machine.  It seeks, by inflicting harm and suffering, to overcome the religious beliefs of anyone who wants to worship outside this system.  This seems like a fairly classic case of persecution.

I don’t know how the case was briefed and argued, but it seems to me that the Fifth Circuit was confused not only about what constitutes religion but also what constitutes persecution and what constitutes a legal (rather than factual) question.  As troubling (or perhaps more troubling):  Why would the Department of Homeland Security appeal this case to the BIA?  I can understand them testing Li’s credibility before the IJ.  But, once Li is found credible, what interest does this administration have in seeing people like Li deported?

Michael S. 

Thursday, September 15, 2005

Missing the Point of Charity

By Rob Vischer

Borrowing a line from Milton Friedman, Ted Rall says that it's time to "starve the beast"; Rall is not talking about the government, but about the collection of "private charities used by the government to justify the abdication of its duties to its citizens."  He argues:

Disaster relief is too important to be left to private fundraisers, with their self-sustaining fundraising expenses, administrative overhead (nine percent for the Red Cross) and their parochial, often religious, agendas. It's also way too expensive. In the final analysis, after the floodwaters have receded and the poor neighborhoods of New Orleans have been razed under eminent domain, major charities will be lucky if they've managed to raise one percent of the total cost of Katrina. Congress, recognizing the reality that only the federal government possesses the means to deal with the calamity, has already allocated $58 billion--over 70 times the amount raised by charities--to flood relief along the Gulf of Mexico. As Bush says, that's only a "down payment."

Cutting a check to the Red Cross isn't just a vote for irresponsible government. It's a drop in the bucket compared to what you'll end up paying for Katrina in increased taxes.

Granted, in terms of popularity of likelihood of success, trying to make a case against giving money to charities compares to lobbying against puppies. The impulse to donate, after all, is rooted in our best human traits. As we watched New Orleanians die of thirst, disease and anarchic violence in the face of Bush Administration disinterest and local government incompetence, millions of us did the only thing we thought we could to do to help: cut a check or click a PayPal button. Tragically, that generosity feeds into the mindset of the sinister ideologues who argue that government shouldn't help people--the very mindset that caused the levee break that turned Katrina into a holocaust and led to official unresponsiveness. And it is already setting the stage for the next avoidable disaster.  (HT: CT)

I think it's safe to assume that Rall does not embrace the principle of subsidiarity.  Even if the efforts of the Red Cross, the Salvation Army, and other private groups could be written off as largely symbolic compared to the government action necessary to restore the Gulf Coast, they are vitally important symbols in our society.  Disaster relief of this magnitude must be primarily a collective, top-down endeavor, at least in terms of funding.  But to marginalize the bottom-up efforts of motivated individuals and associations to meet real needs that have arisen in their midst is to disconnect the citizenry from the suffering around them.  One way I explain subsidiarity is by pointing out that, even if we could prove that all children would eat more nutritious meals if they were bussed three times a day to a central government agency for feeding, few (I hope) would support such an endeavor.  It's not just whether children receive proper nutrition, but who provides it to them.  In New Orleans, I expect the government to do most of the heavy lifting through funds coercively (and justifiably) collected from taxpayers, but I also want an evacuee to come face to face with a volunteer who hands her a meal that has been purchased with the few dollars that my daughter's kindergarten class raised. 

Rob

Leiter responds re PhD's and interdisciplinary work

By Rick Garnett

A few days ago, a few of us posted thoughts (here, here, and here) regarding Professor Brian Leiter's suggestion that a "Ph.D. is essential" to do "competent, cutting edge work in interdisciplinary areas like law and economics, or law and philosophy, or law and psychology."  In response to the invocation, by Michael S. and Fr. Araujo, of the (apparent) contrary examples of Alasdair MacIntyre and Fr. Fredrick Copleston, Professor Leiter observes, via e-mail:

A generation or more ago, it was still common for philosophers, especially from the UK, to enter the profession without doctoral training.  The discipline of philosophy has changed, and this no longer happens (not even in the UK).  Since I was rather explicitly talking about the kind of background and skills required for interdisciplinary work *these days*, the case of philosophers who entered the field 40 or more years ago is neither here nor there.

I'm sure that Professor Leiter is correct that things have changed dramatically -- not only in the humanities, social sciences, and sciences, but in law as well -- in terms of the credentials and training that are expected of university-level teachers and scholars.  I guess I'm still not convinced, though, that a Ph.D. is "essential", as opposed to "valuable" or "helpful."  It seems to me that, these days, the best (not all) J.D. programs do about as well preparing the best law students to do serious academic work as do many (not all) Ph.D. programs.

Professor Stephen Feldman, by the way, published not long ago a fascinating essay, "Toy Story too", about interdisciplinary work and the "crisis of identity" among legal academics.  He compared law professors to Buzz Lightyear.  Here is the abstract: 

Law professors today must confront a crisis of identity. Since the post-Civil War era, legal academics have perceived themselves first and foremost as lawyers. They viewed their scholarship, which typically advocated for law reform, as a means of participating in the legal system. This self-identity is currently collapsing. An increasing number of legal academics instead view themselves primarily as university professors. This Article begins by tracing the historical development of the legal academic, focusing in particular on the importance of professionalization. The Article then explores the current crisis in the self-identity of law professors as they face a distant and largely uninterested legal profession of lawyers and judges. Finally, the Article looks to the future. If legal academics are to think of themselves chiefly as university professors rather than as practitioners, then they might carve out a new professional niche by becoming interdisciplinary experts.

In the course of exploring what it might mean to be an "interdisciplinary expert[]", Feldman cautions against the idea that "interdisciplinary" work must necessarily conform to the standards and practices internal to the "other" discipline.  At Notre Dame, we had a lively faculty colloquium about the paper a few weeks ago.  Check it out.

Rick

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