Sunday, April 3, 2005
I'm sure that many of us are reflecting on the effect that the Holy Father had on our faith and lives, and thanking God for the gift of his ministry and example. It also makes sense, here on MOJ, for us to consider what the Pope's work and thought might mean for law and legal theory. A few thoughts:
First, many of the Pope's writings focus on the importance of culture as the arena in which human persons live, thrive, and search for truth. His was not a reductionist Christianity -- one in which the choices and hopes of persons drop out of the analysis, and are replaced merely by one "dialectic" or another. Nor is Christianity merely a matter of a rightly ordered interior life. We are precious and particular, bearing the "weight of glory," but also social, relational, political -- and cultural. And, he recognized, law both shapes and is shaped by culture.
Second, the Pope returned again and again to the theme of freedom. Certainly, for lawyers -- and particularly for lawyers living and working in our constitutional democracy -- questions about the extent to which law can and should liberate (and, perhaps, liberate-by-restraining?) are appropriately on the front burner. It's fair to say that John Paul II proposed an understanding of freedom -- and of its connection with (T)ruth -- that contrasts instructively with the more libertarian, self-centered understanding that seems ascendant in our law (particularly our constitutional law) today.
Third, I imagine we will be working out for decades the implications of the Pope's proposal that the God-given dignity of the human person, and the norm of love, richly understood, should occupy center-stage in our conversations about morality -- rather than utilitarian calculations, historical movements, or supposed categorical imperatives. This proposal seems particularly powerful when it comes to the matter of religious freedom.
Finally, there is the (perhaps, at first) surprising fact that, at the end of the 20th Century, it was a mystical Pope who "stepped up" and reminded a world that had been distracted, or perhaps chastened, by reason's failures, and had embraced a excessively modest, post-modern skepticism, of the dignity and proper ends (without overlooking the limits) of reason.
There's a lot more to say, of course. I would, for what it's worth, encourage any MOJ readers who work with or advise law journals to consider commissioning essays, or even symposia, on John Paul II's jurisprudential legacy.
Rick
UPDATE: George Weigel, one of the Pope's biographers, has a nice essay on the Wall Street Journal's web site. He expands, in particular, on my first point, emphasizing the place of history and culture in the Pope's thinking:
The key to the freedom project in the 21st century, John Paul urged, lay in the realm of culture: in vibrant public moral cultures capable of disciplining and directing the tremendous energies--economic, political, aesthetic, and, yes, sexual--set loose in free societies. A vibrant public moral culture is essential for democracy and the market, for only such a culture can inculcate and affirm the virtues necessary to make freedom work. Democracy and the free economy, he taught in his 1991 encyclical Centesimus Annus, are goods; but they are not machines that can cheerfully run by themselves. Building the free society certainly involves getting the institutions right; beyond that, however, freedom's future depends on men and women of virtue, capable of knowing, and choosing, the genuinely good. 
That is why John Paul relentlessly preached genuine tolerance: not the tolerance of indifference, as if differences over the good didn't matter, but the real tolerance of differences engaged, explored, and debated within the bond of a profound respect for the humanity of the other. Many were puzzled that this Pope, so vigorous in defending the truths of Catholic faith, could become, over a quarter-century, the world's premier icon of religious freedom and inter-religious civility. But here, too, John Paul II was teaching a crucial lesson about the future of freedom: Universal empathy comes through, not around, particular convictions. There is no Rawlsian veil of ignorance behind which the world can withdraw, to subsequently emerge with decency in its pocket.
There is only history. But that history, the Pope believed, is the story of God's quest for man, and man then taking the same path as God. "History" is His-story. Believing that, Karol Józef Wojtyla, Pope John Paul II, changed history. The power of his belief empowered millions of others to do the same.
In today's lead editorial in the New York Times, we read:
The pope would certainly never have wanted his own end to be a lesson in the transcendent importance of allowing humans to choose their own manner of death. But to some of us, that was the exact message of his dignified departure.
As is so often the case (at least, in my experience) in conversations about morality and the end of life, the editorial writer seems to confuse the Pope's acceptance of suffering and death with joy and dignity with "choos[ing] [one's] own manner of death." The way the Times puts it -- "the transcendent importance of choosing" -- suggests that Justice Kennedy is moonlighting as an editorial writer. I imagine the Pope heard a call -- the invitation to a "good and faithful servant" -- and had no promethean illusions about control, autonomy, and "choice."
The editorial also illustrates, again, the common failure to distinguish between choosing and causing death, on the one hand, and refusing treatment, on the other. The concerns at issue in the Schiavo case had to do not with the fact that she died -- or even, frankly, with her right to refuse necessary treatment -- but with the possibility that, as some saw it, she was killed.
To be fair, the editorial ends on what I'm sure was intended to be a positive note: "His embrace of each person's innate dignity was his touchstone, allowing him to shape our times even as he railed against them." Even here, though, the writer just does not get it. The Pope's relation with "our times" and the culture was not so adversarial; he did not merely "rail" against the times. He embraced the world, and loved the young, and proclaimed constantly a message of optimism and hope. His criticisms were not, as the Times seems to believe, the scolds of a curmudgeonly reactionary; they were the exhortations of a loving parent or faithful friend, who suspects that his loved ones are capable of doing better.
Rick
