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, July 28, 2005

David Hart on the "Anti-Theology of the Body"

By Rick Garnett

Check out this essay, "The Anti-Theology of the Body," by David Hart, in the latest issue of The New Atlantis.  Here is a tantalizing bit:

The difference between John Paul’s theological anthropology and the pitilessly consistent materialism of the transhumanists and their kith—and this is extremely important to grasp—is a difference not simply between two radically antagonistic visions of what it is to be a human being, but between two radically antagonistic visions of what it is to be a god.

Here is the conclusion:

It may well be that the human is an epoch, in some sense. The idea of the infinite value of every particular life does not accord with instinct, as far as one can tell, but rather has a history. The ancient triumph of the religion of divine incarnation inaugurated a new vision of man, however fitfully and failingly that vision was obeyed in subsequent centuries. Perhaps this notion of an absolute dignity indwelling every person—this Christian invention or discovery or convention—is now slowly fading from our consciences and will finally be replaced by something more “realistic” (which is to say, something more nihilistic). Whatever the case, John Paul’s theology of the body will never, as I have said, be “relevant” to the understanding of the human that lies “beyond” Christian faith. Between these two orders of vision there can be no fruitful commerce, no modification of perspectives, no debate, indeed no “conversation.” All that can ever span the divide between them is the occasional miraculous movement of conversion or the occasional tragic movement of apostasy. Thus the legacy of that theology will be to remain, for Christians, a monument to the grandeur and fullness of their faith’s “total humanism,” so to speak, to remind them how vast the Christian understanding of humanity’s nature and destiny is, and to inspire them—whenever they are confronted by any philosophy, ethics, or science that would reduce any human life to an instrumental moment within some larger design—to a perfect and unremitting enmity.

Rick

Interesting Conference at Notre Dame

By Rick Garnett

Here's the announcement for this Fall's conference sponsored by the Notre Dame Center on Ethics and Culture:

NOTRE DAME CENTER FOR ETHICS AND CULTURE
2005 ANNUAL FALL CONFERENCE
“JOY IN THE TRUTH: THE CATHOLIC UNIVERSITY IN THE NEW MILLENNIUM”

SEPTEMBER 29-OCTOBER 1, 2005
UNIVERSITY OF NOTRE DAME

Joy in the Truth: The Catholic University in the New Millennium is a conference whose mission is shaped by Pope John Paul II’s words from the opening of his 1990 apostolic constitution on Catholic universities, Ex Corde Ecclesiae:  "Without in any way neglecting the acquisition of useful knowledge, a Catholic University is distinguished by its free search for the whole truth about nature, man, and God. The present age is in urgent need of this kind of disinterested service, namely of proclaiming the meaning of truth, that fundamental value without which freedom, justice and human dignity are extinguished (no. 4).

Philip Gleason, Professor Emeritus of History at the University of Notre Dame and author of the seminal Contending with Modernity: Catholic Higher Education in the Twentieth Century, will inaugurate the conference with a keynote address on Thursday evening, September 29 at 7:30 p.m.  The conference will conclude with a festive banquet on Saturday evening, October 1, featuring remarks by the recently inaugurated President of the University of Notre Dame, Rev. John Jenkins, C.S.C.  The conference, running from September 29 ­ October 1, will bring together scholars representing all the main academic fields to discuss a broad range of issues relating to the way in which the Catholic University can best respond to the Church's call for a renewal of Catholic institutions of higher learning. The conference will also be enriched by the experience and wisdom of participants from other kinds of Christian institutions, and from secular institutions as well.

Our invited speakers are—

Bishop John D’Arcy (Diocese of Fort Wayne-South Bend)
Rev. Matthew Lamb (Ave Maria College)
Robert Sloan (President Emeritus, Baylor University)
John Finnis (Notre Dame/Oxford)
John Cavadini (Notre Dame)
Ralph McInerny (Notre Dame)
Helen Alvaré (The Catholic University of America)
David Lyle Jeffrey (Baylor University)
Rev. Kevin Wildes, S.J. (President, Loyola University, New Orleans)
Don Briel (University of St. Thomas, St. Paul, Minnesota)
Rev. Wilson Miscamble, C.S.C. (Notre Dame)
Don Schmeltekopf (Baylor University)
H. Tristram Engelhardt, Jr. (Rice University)
Michael Beaty (Baylor University)

Among the themes to be discussed by both the invited speakers and by those who submitted proposals are —

-       Academic freedom
-       The Catholic University and ecclesiastical governance
-       The distinct approaches to higher education found within various Catholic intellectual traditions
-       The distinction between Protestant and Catholic approaches to higher education
-       The enduring influence of seminal figures such as Augustine,
Aquinas, Francis of Assisi, Bonaventure, Ignatius Loyola, John Paul II, Newman, Maritain, and Edith Stein
-       The Catholic character of particular disciplines such as law, philosophy,
theology, and the arts
-       The connection between Catholic social teaching and Catholic higher education
-       New curricular initiatives
-       The “shadow curriculum” that haunts Catholic universities
-       The value of Great Books programs to Catholic higher education
-       What Christian universities can learn from Nietzsche

There will also be panels devoted to—
-       What Catholic universities can learn from non-Catholic ones
-       Transforming university administration into ministry
-       Duquesne’s doctoral program in Rhetoric as a model for Catholic
education for service
-       St. Louis University’s Micah House as a model for integrating faith, curriculum and social justice
-       Luigi Giussani and the risk of education
-       Love of knowledge as an intellectual virtue

We expect several hundred people to come to Notre Dame this fall to attend Joy in the Truth.  The total number of presentations will once again top the 100 mark.

History

Inspired by Pope John Paul II’s insistent call to activate a great campaign in
support of a new Culture of Life, the Notre Dame Center for Ethics and Culture launched in the Jubilee Year of 2000 what would turn out to be our annual fall conference and the flagship of our conference program. By promoting a “Culture of Life,” the Center takes as its mission the practical embodiment of the ethical and cultural vision expressed in Pope John Paul II’s Encyclical Letters, Veritatis Splendor, Centesimus Annus, Evangelium Vitae, and Fides et Ratio. At the core of this moral vision is a passionate commitment to the inherent worth of every human life from conception to natural death, the compatibility of faith and reason, and the connection between truth and genuine human freedom.

Sponsored by a generous grant from the Maas Family Excellence Fund, the
Center’s fall conference began as a triennial conference series dedicated to the proposition that the ideals expressed by the Magisterium of Pope John Paul II are the best antidote to our current cultural maladies. The series started, accordingly, with a conference entitled A Culture of Death (2000), which was devoted to the diagnosis of the precise nature of our current cultural maladies. It was followed by A Culture of Life (2001), which reflected more positively on the elements of a genuine renewal of culture. In a conference entitled From Death to Life: Agendas for Reform (2002), the triennial series concluded with more intense deliberation on the practical means of building a new Culture of Life.

Due to the huge success of this triennial series, the Center committed to
making the fall conference an annual event. So, once again with the generous
sponsorship of the Maas Family Excellence Fund, the conference series continued with Formation and Renewal (2003), where attention was given to the sources of moral, intellectual and spiritual formation available to a culture marked by a loss of meaning and direction. The 2004 conference, Epiphanies of Beauty: The Arts in a Post-Christian Culture, considered the role played by the arts in helping make manifest the full truth of the human person.

Throughout these first five conferences the Center has been very proud to
sponsor major addresses by a host of prominent contemporary thinkers,
including: Francis Cardinal George, Alasdair MacIntyre, John Noonan, Sr. Helen Prejean, George Weigel, Ralph McInerny, Marvin O’Connell, Michael Baxter, Helen Alvaré, Ralph Wood, Tristram H. Engelhardt, Stanley Hauerwas, Margaret Monahan Hogan, David Lyle Jeffrey, Thomas Hibbs, Joseph Bottum, Thomas Gordon Smith, Jorge Garcia, Laura Garcia, Barbara Nicolosi, Gregory Wolfe and Gerry Bradley.

This is not even to mention the scores of scholars from across the academic
spectrum and also outside of academia who deliver contributed papers to the conference each year—a number that now regularly tops the 100 mark! In
accepting proposals the Center takes special care to include graduate and
undergraduate students, and we are especially proud that each fall one or two high school students deliver their first professional paper at the conference.

But beyond providing a venue for academic discussion of the highest
caliber, the Center’s annual fall conference has also aimed to be a place where those sharing a broadly similar outlook on ethical and cultural issues can gather in a friendly atmosphere in order to build a genuine community of scholars. Such community is fostered not only by the formal discussions, but also by the shared meals and other opportunities between sessions to form personal and professional relationships.

Additional Information

The cost of the conference includes a continental breakfast and a served lunch and dinner.  All conference sessions and meals will be held at Notre Dame’s McKenna Hall.  For more information on “Joy in the Truth: The Catholic University in the New Millennium,” please visit our web site at
>http://ethicscenter.nd.edu. 

Stephen Smith on Catholic lawyers

By Rick Garnett

Our own Steve Brainbridge mentioned the article a few weeks ago (I think), but I thought I'd put in another plug for Stephen Smith's essay, "Cultural Change and Catholic Lawyers."  For all you law students out there (there are some out there, I hope!), this is must-reading.

Rick

Bradley Lewis on the Common Good

By Rick Garnett

Time and again on this blog, we've returned to the notion of the Common Good, and to the importance of defining properly that notion.  (Here, for example, is an earlier post about Paolo Carozza's very helpful take on the matter).  So, I'm happy to pass on the news that Catholic U.'s philosopher Bradley Lewis -- who has been visiting this summer at Notre Dame -- has a very helpful paper, "The Common Good in Classical Political Philosophy," which is forthcoming in a symposium on "The Professions and the Common Good," to be published in Current Issues in Catholic Higher Education.  (Unfortunately, I don't have a link to the essay, but I'm sure Professor Lewis would be happy to send copies).  Like Carozza, Lewis emphasizes that "[t]he good of individual persons and other groups is in an important way constitutive of the common good."  I was also struck by the claim that "[t]he common good is served . . . by particular goods being maintained by particular persons and by the common good as a whole being a separate and distinct material concern."

Maybe Vince, who also writes on this subject, has some thoughts?

Rick

50 Years of Ralph McInerny

By Rick Garnett

Here is a nice tribute to Notre Dame's legendary and beloved Thomist, teacher, and mystery novelist, Professor Ralph McInerny.

Wednesday, July 27, 2005

Tamanaha on Civil Disobedience by Judges

By Rob Vischer

As a follow-up to my earlier post, my friend and former colleague Brian Tamanaha, one of today's leading voices on the rule of law, agrees that civil disobedience by judges is an option, but probably not the best one:

I see no conceptual reason why judges cannot commit civil disobedience. They can be conscientious objectors to the law like anyone else, though they must be prepared to be fired as a result, because they have taken an oath to abide by the law which they will have violated.

As you indicate, it perhaps makes a stronger point than the alternatives. I would only add that, with respect to integrity of conduct and belief, it seems to me that the resignation alternative has more to commend it. By resigning they do not violate their oath to law and they do not commit the moral wrong. By civil disobedience, they act consistent with the moral view but violate their oath to the law. You should remember that the party before the court has legal rights as well, which the judge will be knowingly trampling (however well meaning), and the idea that the appellate court can step in is not a complete solution, especially when time is of the essence.

Perhaps you also underestimate the signal given by resignation. Quitting one’s job is a protest to the system that exacts a high personal cost; in contrast, civil disobedience imposes the immediate cost on the party before the court, and will likely result in a sanction to the judge that is less than being out of a job. Which of these two positions raises a more dramatic protest as a matter of personal conscience?

Rob

The Government's Views on the Content of Religion

By Rick Garnett

One of my favorite blogs is run by the University of Wisconsin's Prof. Ann Althouse.  A few days ago, she had a post called "When government says what the 'true religion' is," commenting on Prime Minister Tony Blair's recent statement in the wake of the 7/7 bombings that the "moderate and true voice of Islam" needs to be "mobili[z]ed."  Ann asks, "how can [Blair] say what the true interpretation of a religion is?"  Similar questions were raised, a few months ago, by Eugene Volokh, regarding a proposed sex-education curriculum in Montomery County, Maryland.   The proposed curriculum supplied "facts" -- including "facts" about religion -- designed to counter certain prevalent "myths" about homosexuality.

What should we think of Blair's comments?  On the one hand, it seems hard to deny that liberal governments have a strong interest in the content and development of religious traditions and doctrines.  (I wrote an article about this interest a few years ago).  In fact, it seems to me that liberal governments have an interest in convincing people -- whether they belong to the religion in quiestion or not -- that the religion in question really teaches in accord with liberal values.  After all, religion matters to many people, and it shapes the citizens on whose judgment democratic governments purport to rely.  It is better, then, that religions inculcate some values, commitments, and loyalties rather than others.  As I wrote in my article,"Governments like ours are not and cannot be 'neutral' with respect to religion’s claims and content.  [T]he content, meaning, and implications of religious doctrine are and have long been the subjects of government power and policy. Secular, liberal, democratic governments like ours not only take cognizance of, but also and in many ways seek to assimilate—that is, to transform—religion and religious teaching."  On the other hand, there's the longstanding maxim that governments like ours should not -- and perhaps even may not -- take "cognizance" of religion, or "entangle" themselves with religion.

What do people think?  Would it be wise or wrong [or unconstitutional?] for a government to undertake, as a matter of policy, to push the doctrines of a particular religion in a government-approved direction, or to support a particular government-approved faction within a religious tradition, in order to serve what the government regards as the common good?

Rick

Paulsen on the obligations of a pro-life judge

By Richard Myers

I think the best article I've read on this topic is a typically brilliant article by Mike Paulsen. The article is entitled "Accusing Justice: Some Variations on the Themes of Robert M. Cover's Justice Accused" and it was published in Volume 7 (1989) of the Journal of Law and Religion at pages 33-97.  Another very good treatment of this topic is the paper by Russell Hittinger on "Thomas Aquinas on Natural Law and the Competence to Judge." This paper is included in a chapter of a book that I co-edited on "St. Thomas Aquinas and the Natural Law Tradition: Contemporary perspectives" (Catholic University of America Press 2004). A shorter version of Hittinger's paper is included as chapter 4 of his book "The First Grace" (ISI Books 2003).

Richard

Law and (Liberation) Theology

By Michael Perry

I haven't yet read this--just saw the cite and thought I'd call MOJ readers attention to it.

Liberation Theology and the Law. Articles by Rhonda V. Magee and William W. Bennett. 3 Seattle J. for Soc. Just. 587-673 (2005).

mp

Civil Disobedience and the Catholic Judge

By Rob Vischer

There is at least one loose end that remains to be tied up from our discussion of the Catholic judge.  A few days ago I indicated that a Catholic judge called to implement an immoral law faced four options: apply the law as given, resign, recuse, or engage in civil disobedience.  One reader called the prospect of civil disobedience for a judge "absurd," and he may be right.  But I won't concede the point without a bit more exploration.

Let's suppose that a Catholic judge hears a motion from a minor seeking permission to obtain an abortion without parental consent.  The judge finds that there is not sufficient cause to grant permission, and denies the motion.  The appellate panel -- comprised of judges who consistently seek to maximize reproductive rights -- rules that the lower court abused its discretion and remands for further proceedings.  If the lower court now has no viable legal or factual basis on which to deny the motion, would Catholic legal theory deem it permissible for the judge to issue the following ruling?

Under state law as interpreted by the court of appeals in this case, this 15 year-old child is entitled to terminate the life of her unborn child without even notifying her parents, making a tragic situation even more tragic.  Such an outcome is not acceptable in a legal system that purports to value both family and life.  Here, the law acts to eviscerate both.  I cannot facilitate such an outcome.  The motion is denied.

The judge undoubtedly would be subject to sanction, and the appellate court would step in and grant the motion.  The system remains intact, but a strong message of dissent has been registered.  Recusal, by contrast, simply suggests that the judge has a personal hang-up or bias toward the case -- i.e., it's the judge's problem, not society's.  At a minimum, such an act of civil disobedience by a judge seems more consistent with the rule of law than a judge's instrumentalist manipulation of law to pursue her own moral or religious ends.  The former challenges the law overtly and can be addressed through established legal procedures, the latter subverts law covertly and corrodes the rule of law from the inside out.

I admit, scenarios justifying such acts are exceedingly rare (the Jim Crow South is another potential context), and depending on our view of Catholic legal theory, possibly non-existent.  It's fairly easy to see that deference to the rule of law is not an absolute value for Catholic legal theory in a place like Nazi Germany, where the rule had been thoroughly and irredeemably corrupted.  But in contexts where the rule of law, in broad terms, is still viable, are there any specific instances where the threat of injustice is so great that a judge would be justified in temporarily stepping out of her role as an agent of the law to become a (vocal) dissenter from the law?

Note that I'm not asking whether Catholic legal theory would ever require such a stance (I don't think it would), but whether such a stance is among the permissible options.  In other words, does Catholic legal theory's embrace of the rule of law forbid civil disobedience by a judge?

Rob

UPDATE: My friend and former colleague Michael Simons reminds me that in 1997, Judge Sprizzo (S.D.N.Y.) acquitted two abortion protestors in a self-confessed act of "judicial nullification."  Here's the story, along with Michael McConnell's perspective on the case. 

And Greg Kalscheur, S.J. recommends Robert Cover's Justice Accused: Antislavery and the Judicial Process (1975), in which Cover considers different judicial approaches to enforcing the Fugitive Slave Act.

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