Continuing in the vein of the crisis in the Church, the larger context includes the breathtaking (but not entirely surprising) decline in Christianity's place in the world in the decades immediately ahead. The global projections, made by the Pew Research Center, are here For example, by 2050 Christians will lose their majority in the population in the following countries (among several others): Republic of Macedonia, Australia, United Kingdom, France, New Zealand, and the Netherlands. If current trends continue, Muslims will outnumber Christians after 2070. In the United States, the Christian population will decline from 78.3% in 2010 to 66.4% in 2050.
All of these and the many other developments reported by Pew will be greeted by many as good news indeed, but only Christians indifferent to the unique saving power of Christ cannot but be troubled by the diminishing presence and action of Christians in a world whose daily headlines already reveal a scandalous lack of Christian ways of doing and of forbearing.
My principal thesis at the recent Scarpa Conference was that the Church is in crisis (not in "springtime") and that worthwhile Catholic legal theory must start from the facts of crisis (not of the false facts cultured by the spurious optimism that says, for example, that closing parishes by the dozen is the way to ensure a "lively" Catholic future), if it is to be relevant (as it surely should seek to be):
My contention, then, is that the Church is in crisis and that the various denials (which I have just cataloged and refuted) are variously untenable. My further contention is that Catholic legal theory worthy of the task must start from, or at least work toward, agreement that the Church is in crisis, and not more or less idly await the adventitious intervention of the paradoxically predictable “God of surprises.” My still further and more specific contention, as I have already indicated, is that it’s the Roman regime of novelty since 1965, summed up under the crisis-occluding monicker “God of surprises,” that is the biggest impediment to genuinely Catholic theorizing about law. An institutionalized expectation of an orchestrated series of surprises is a counter-incentive to work with the inheritance the Church bequeathed to us until the Second Vatican Council became, alas, the alpha-point of ecclesiastical history.
Perhaps the biggest novelty, at least relevant to Catholic legal theory, is that false summum bonum called “dialogue.” Worship of “dialogue” is so far-flung today, more so than Mass-attendance, that we need to be reminded to recognize that (as Romano Amerio explains), “the word dialogue represents the biggest change in the mentality of the Church after the council, only comparable in importance with the change wrought by the word liberty in the last century. The word was completely unknown and unused in the Church’s teaching before the council. It not does occur once in any previous council, or in papal encyclicals, or in sermons or in pastoral practice. In the Vatican II documents it occurs 28 times.” (Amerio, Iota Unum, at 347). Which, I might add, is twenty-eight times the number of times the Social Kingship of Christ is mentioned in the documents of the same Council. And what did Christ command his disciples to do? To go and make disciples of all nations (Matt. 28:19), that is, to evangelize, and “[i]n Scripture, evangelization proceeds by teaching not by dialogue. Christ’s last command to his disciples was matheteuein and disaskein, which literally means make disciples of all nations.” (Id. at 351) Not only does the concept of dialogue lack scriptural foundation, it rests upon the mistaken assumption that all are capable of dialogue. As Socrates taught, on matters of gymnastics, one should consult an expert on gymnastics, etc. (Id. at 349) The Church is in sole possession of the authority to teach as Christ did at Matthew 7:29: “with authority.” In 1971 in presenting the Holy See’s “Instruction on Dialogue” to the press, Cardinal Konig explained that “dialogue puts the partners on an equal footing.” (Id. at 355 n.17) Q.E.D. So much for “with authority.
As Rick Garnett was careful to note here and here, there is indeed a place for dialogue, indeed a moral exigence for it. My stated objection to "dialogue" was that it has eclipsed, in much of we hear from ministers of the Church and from many others who have followed their lead, the ultimate goal of the Christ's Mystical Body: the salvation of souls, which is not the outcome of dialogue but of discipleship, and discipleship is the fruit of successful evangelization. Dialogue is sometimes, indeed often, a necessary and desirable means, but it's not the end.
My focus at the conference was on the "auto-demolition" -- the self-destruction -- of the Church, and I do indeed believe that that phenomenon is the one most to be feared. But I certainly agree with John Breen (here) and others that the troubles in the Church are also traceable to "cultural" influences. But that only leads me to observe that (as the young Jacques Maritain once wrote), "it was five hundred years ago that we began to die." The Church's long-diminishing influence on the culture has had its disastrous effect, including in Vatican II's insistence that the Church must conform herself to the culture in various ways. The Church that should transform the culture is being transformed by the culture (in part) because of her very own failure to transform that culture into one that seeks, rather than seeks to destroy, the Church. The result is that culture is every day having its way with the one thing that could tell it (the culture) to straighten up and fly right. (Cf. Leo XIII, Letter Testem Benevolentiae to the Archbishop of Baltimore, 1899). If we hadn't begun to die five-hundred years ago, the culture would more help than hinder the evangelizing work of the Church today.
We are in what Bernard Longeran referred to as the long cycle of decline. Which is why I also said at the conference that today the world needs the Church in her fullness "more than ever" (though I recognize that that need was, in some deeper sense, always already infinite).
I'll close for now with some bracing words from Pope Paul VI, who had his good days and his bad days:
Enough of internal dissent within the Church! Enough of a disintegrating interpretation of pluralism! Enough of Catholics attacking each other at the price of their own necessary unity! Enough of disobedience described as freedom!
So spoke, in 1975, the Pope who had solemnly closed the Second Vatican Council just a decade earlier, anticipating that "new springtime" that would turn out to be a winter the likes of which the Church in her long history has hardly ever seen. I have never tried to count the number of times Paul VI tried to console himself late in life by publicly stating "We have kept the Faith," but I'm sure someone somewhere has done that little-consoling research.
Friday, May 1, 2015
Today I had the privilege of participating in a conference, Reconsidering Access to Justice, hosted by Texas A&M Law School. My role was to offer comments on a great new paper presented by David Luban. In his paper, David explores the “discourse of optimism,” which he uses to refer to the view that "new technologies are revolutionizing the delivery of legal services to such a degree that we might foresee a technical fix to many of access to justice problems." He is hesitant to embrace this optimism fully, noting that a human legal adviser has several qualities that even the most sophisticated machine cannot replicate, including emotional intelligence, moral give-and-take, and creativity. He then discusses the relationship between legal justice and social justice in ways that are insightful and productive, as his longtime readers will expect.
In my response, I focused on the promise of technology in the quest to address access to justice problems. I'll post just a brief excerpt that captures my main point:
I am not confident that the market is effective in distinguishing legal needs that do or do not require the assistance of a lawyer; even in the corporate sector, I think we’re likely to see costs – both to the client and the broader society – from a reduced reliance on lawyers in the pursuit of perceived greater efficiencies. And if corporations don’t always make the call that is in their long-term best interests because of short-term financial considerations, why do we think the poor will fare better? Especially when the broader society is eager to latch on to cheaper technological short-cuts that allow us to avoid adequate funding of legal services?
Of course, our alarm over these trends is a function of our assessment of the value proposition presented by lawyers. Whether it’s representing the marginalized individual or the powerful corporation, if we presume that lawyers bring nothing else to the table beyond legal information or scalable technique, clients have no reason to expect something more, and there’s no reason for alarm when the “something more” fades from view. And as Richard Susskind reminds us, the strictly technical tasks can be disaggregated and divided among the lowest bidders, short-circuiting any role that would require coherent – much less comprehensive – knowledge of the client and her overarching needs and interests, thereby making the “something more” even more elusive. It’s a cycle that feeds on itself.
I write “potentially” because lawyers still have something to say about their future, even if it proves to be only on the margins. But to speak into the future, we need to answer a more fundamental question about who we are in the present, who we are as professionals. As law schools, can we train trusted counselors who, as David Luban puts it, exhibit emotional intelligence, moral give-and-take, and creativity? The public we serve – poor and rich alike – should care very much that we can and do.
I express my debt to my friends John Breen (a much-missed colleague) and Patrick McKinley Brennan for their thoughtful recent postings and exchanges that emerge from the recent Scarpa Conference generously hosted by Patrick and Villanova. I have a few thoughts, which are in need of great elaboration, that I modestly add to theirs—and someday, the good Lord willing, I shall accomplish this task. But the nature of a web log is to be brief (even when a posting has to be divided as I do with this one). Today, I set out some thoughts with the hope that they may trigger additional reflections by other Mirror of Justice contributors and this site’s readers. Perhaps what I offer today may also offer supplementary grist for the mills of our Catholic Legal Theorist minds.
Both Patrick and John speak of crisis—may I add crises—which education in general and Catholic (including legal) education face today. Whether the directors of education, including teachers, are aware of these crises remains an open question. However, there is very little evidence to suggest that most educators truthfully comprehend the crises which confront the educational enterprise of today. John refers to the fascinating address delivered by the late Fr. Robert J. Henle, S.J., former president of Georgetown University. Fr. Henle arrived at Georgetown during my senior year of college (1969-70); he remained in that post whilst I was a Georgetown law student (1970-73). In 1997, I had the honor of being a visiting professor at St. Louis University School of Law. At least once a week, I had the honor to celebrate Mass for and with the infirmed Jesuits who lived at Fusz Pavilion, the Jesuit infirmary of the then Missouri Province. Fr. Henle was one of the concelebrants who would not be denied exercising his priesthood notwithstanding his physical blindness and his permanent confinement to a wheelchair. After the first or second Mass that I celebrated for the infirmed, Fr. Henle called me over and said: “You’re new here, aren’t you?” I replied in the affirmative and told him what I was doing at Saint Louis U. for the semester. I then said, “Fr. Henle, I have two of your autographs!” He quickly responded by saying, “Ah, you’re a graduate of Georgetown!” He seemed pleased. But he would also confess a bit of disappointment that, in retrospect, he could see that mistakes were made in his leadership of Georgetown that may well have provided a nurturing environment for the crises of which John and Patrick address.
Fr. Henle and I then began a series of short discussions over the rest of the semester. It became clear to me that Fr. Henle was, as John mentioned, conscious of the transformation that education, particularly education that uses the moniker “Jesuit,” was undergoing. His awareness of this led him to teach a course in Thomistic-based jurisprudence at Saint Louis’s Law School, after he left Georgetown, for as long as he could. I don’t think anyone replaced Fr. Henle by offering such a course once he had to step down due to his mounting infirmity. It struck me that Fr. Henle intended to ask the unasked questions of his law students that few if any other teachers were willing to or cared to raise. His questions became a catalyst for those that I asked of myself and, then, of my students and colleagues who were willing to listen to them.
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Thursday, April 30, 2015
As so many generous contributors to MOJ have already recorded here, the Ninth Annual Scarpa Conference, held at Villanova Law last week, offered a welcome opportunity to ponder, probe, and pray about (and for) that for the sake of which those engaged in "Catholic legal theory" are laboring. I remain overwhelmed by the gifts that true generosity of intellect and spirit delivered one week ago.
MOJ has served for more than a decade now as a crucible for refining both questions and answers about what Catholics who care about the common good, and therefore about law, should be doing. My own sense, reached with sadness but openness, is that true care for the common good today cannot shrink from acknowledging that the Church labors in the throes of a crisis. We can (and must) debate and determine the sources and causes of the crisis, but crisis it is, and any refusal to acknowledge the crisis for what it is should be prepared to demonstrate, beyond a reasonable doubt, how (with a few exceptions) the unwinding of the institutional Church from shore to shore gives witness to that "new springtime" one hears about all the time. I comprehend that souls can be saved even as institutions collapse, but where, exactly, is the evidence of spring in the visible life of the Catholic Church in the United States?
My principal point at the recent conference at Villanova was that Catholic legal theory worth its salt must recognize and fathom, first, what the culture needs, for the salvation of souls, and, second, how the Church's ministers must re-shoulder a burden that was sidelined by a bizarrely elitist preference (since 1965 or so) for "dialogue" instead of evangelization undertaken in the fullness of charity.
Catholic legal theory must start from what the world needs, and my submission is that what the world needs from the Church is, first (and last), a Church who cares more visibly and effectively for the salvation of souls, rather than so much about (say) equal wages for equal work (no doubt a matter of great importance for the jurisdiction of the civil ruling authority). In my view, Catholic legal theory isn't worth the name Catholic unless it be about saving souls, and the salvation of souls begins, if at all, in this world and under its principalities.
In his paper at the recent Scarpa Conference, Patrick Brennan (here) bracingly argued that the Church is in crisis, engaged in a process of “autodemolition . . . through relentless novelty,” a process that has been ongoing since the Second Vatican Council through to the papacy of Pope Francis. In his paper Patrick noted how even Pope Paul VI recognized this crisis, concluding that “the smoke of Satan had entered the temple of God.” Patrick urged Catholics today to eschew the "spurious optimism" that so often greets the facts that demonstrate this crisis.
My assessment of the Council may differ somewhat from Patrick’s (e.g. it has, I believe born genuine fruit) but this is not to deny that the faith has been in crisis during the post-conciliar era, and this notwithstanding the remarkable efforts of Paul’s successors, John Paul II and Benedict XVI. A variety of factors account for this crisis, the most significant of which is (I believe) the catastrophic failure in catechesis that took place in the wake of the Council – a failure that affected both those directly subjected to it and their progeny.
Paul VI was not the only one to recognize that a crisis was in the works. In conducting some archival research for our book on the history of Catholic law schools, Lee Strang and I came across a newspaper article reporting on a speech given by, Rev. Robert J. Henle, S.J., president of Georgetown University, to an alumni dinner in early 1971, an article that was circulated among Jesuit university administrators. Father Henle’s remarks plainly indicate that Catholic educators knew they were dealing with a crisis:
When we accepted freshman in our Catholic colleges 20 years ago, we assumed they were, for the most part, solid in their faith. They were Christians in practice and belief, and they recognized sin even whey they committed sin. Our problem in the colleges and universities was to put intellectual substance into their belief, to ground it and found it rationally, to give them an intellectual control over their internalized system of values.
But we can no longer do this. We have to assume that it doesn’t make any difference what Catholic high school they come from or what Catholic homes they come from. We have to assume that the majority of our freshman come to us already with a crisis of faith.
Our task is not to elaborate the faith into a rational system, to give it substance, to expand it, or increase it. Our problem is a missionary problem: to reestablish the faith, reestablish their belief, to help the young people find and internalize a sound system of values for themselves. The present problem of Catholicism with regard to most of our young people is to reestablish some belief in fundamental values and to work toward some kind of a basic consensus with regard to values. The conflict which our young people have seen in their parents between a secular set of values, money, the good life, the Playboy philosophy, and a religious set of values (Mass on Sunday, Christian words, statements) has been devastating to many of our young, and they move in both directions.
So we have in this country, and in the Western world, a real crisis with regard to fundamental convictions. I doubt very much that we can find any period in history in which this was true to the same extent. It is perfectly true that in the middle of the 16th century the confusion about religious faith, due to the Protestant Reformation and the Counter-Reformation, was widespread in Europe. But even underneath that kind of difficulty were some fundamental Christian and moral acceptances that Lutherans, Catholics, Calvinists, Presbyterians and Anglicans would all accept. I don’t think we have any kind of unified acceptance anymore. This is one of our very basic problems that is going to haunt us for a long, long time and for which none of us has yet found an adequate counter-ploy. We are working at it, there is hope, but we really haven’t found a way to handle this position.
It appears that, in 1971, Father Henle attributed the crisis primarily to cultural forces rather than to the innovations introduced by the Council, but he still saw it as a crisis that undermined the practice of the faith. To recognize the crisis is one thing. It is, however, worth pondering whether the steps taken by Georgetown and other Catholic universities in response to this crisis (the “counter-ploy” to which Henle refers) were well chosen: the method of “dialogue” that Patrick bemoans in his paper in contrast to the clear but loving presentation of the faith in its integrity together with the intellectual tradition that supports it. And indeed, it is well worth pondering whether the choice of methods now practiced work to correct this crisis or to sustain it.
Prof. Carl Esbeck has a thoughtful piece up at Public Discourse called "Redefining Marriage Would Erode Religious Liberty and Free Speech Rights of Citizens and Churches." A bit:
. . . [A] decision declaring state marriage laws void for animus would disparage those religious organizations and persons who believe deeply in marriage. Such a decision would stigmatize them as bigots akin to racists. That stigma would impede their full participation in democratic life, as their beliefs concerning marriage, family, and sexuality are placed beyond the constitutional pale. Because religious people cannot renounce their scriptural beliefs, a finding of animus would consign believers to second-class status as citizens whose doctrines about vital aspects of society are deemed presumptively illegitimate. The misattribution of animus would deprive believers and faith communities of their rights to the free exercise of religion, free speech, and democratic participation. Assaults on religious liberty, already under pressure, would intensify. . .
I made a similar suggestion in Commonweal, in this piece, after the Windsor decision.
One of the highlights of the year at Notre Dame is always the Notre Dame Center for Ethics & Culture's Fall Conference. Here is a link to the Call for Papers for this year's gathering, the theme of which is "Freedom." (I'm for it.)
