Thanks to Rick for his faithful posts of the presentations at Friday's Scarpa conference. It was a wonderful gathering at so many different levels and I am grateful to Patrick Brennan and our other friends at Villanova for hosting us.
As Rick described in one of his posts, my contribution to the day was a talk on Evangelii Gaudium and Catholic Legal Theory. As I said during my presentation, Pope Francis' Apostolic Exhortation offers a series of thoughts that I think help inform our effort to develop a Catholic Legal Theory and provides us with some significant themes that can help us reflect on what should be our foci and how we engage in this task.
I posted my remarks on my webpage, and you can read them here. I always think I will have more time than I do when I present at conferences, so not everything that appears in the text made it into my talk. But hopefully those interested in our project who were not able to be with us might find something of benefit in it.
The Scarpa conference is winding down with a Roundtable conversation, involving all ten (!) of the participants. For starters . . . is there a tension between, on the one hand, talking about "creating conditions" for exploring ideas and, on the other, Patrick Brennan's critique of "dialogue" as that term is sometimes used. Rob and Marc say, "not necessarily." One can emphasize the importance of "exchange of ideas" in the educational context (and the law-school context) while at the same time sharing Patrick's concern that "dialogue" becomes, as he put it, the object of "worship" rather than a way of interacting and a means to or method for an end.
But, for the law, anyway . . . what is that end (Tom asks)? Is it the goal or purpose of human law to bring people, in Patrick's words, to "salvation in Jesus Christ?" It is, Patrick insists, to "create conditions" -- to the extent circumstances permit -- "conducive to the supernatural common good." Shifting to law schools, Michael Moreland says that the project of Catholic law schools cannot be entirely a project of evangelization; academic excellence will and does matter. At the same time, as John Breen and others emphasized, "academic excellence" should not be understood entirely apart from the Catholic mission and character of these schools.
What is the role, post-2008, of the Catholic legal scholar, doing Catholic Legal Theory, at a Catholic law school? (Dean) Rob Vischer takes this as an important and difficult question. Our scholarship has to matter to (even if not only to) the student experience and students' success and outcomes. Otherwise, it is difficult to justify the use of (in effect) students' resources to subsidize that scholarship. Patrick responds by noting that no one forces students to pay for legal scholarship; they can attend schools where faculty are not expected to engage in scholarly activities and work. (He then illustrates and elaborates with some stories about Henry Monahan.) And, Marc and Lisa recalled ways in which their scholarship -- in Law and Religion, or in Catholic feminist theory -- enriched their teaching and relationships with children.
Tom Berg recalled to Rob Vischer the fact that he (Rob) had said in his own talk that the value of Catholic Legal Theory is that it is true. That's reason enough -- more than! -- for faculty to engage in such scholarship. And if a socialist can be expected to subsidize Law and Economics scholarship, there would not seem to be anything strange about expecting law students to pay also for the scholarship of those who are engaged by and with Catholic Legal Theory. (Marc wonders, though, if a line of inquiry has to be true, or believed to be true, in order to be a worthy academic endeavor.)
Michael Scaperlanda shifted gears . . . what does this project mean outside the law schools, in practice and for practitioners? A member of the audience suggested that maybe we should, in law schools -- in order to better prepare advocates -- spend more time understanding the actual substantive claims, including religious claims, that will often motivate clients. As Kevin notes, though . . . it is not always the case (perhaps not even often the case) that the faculty in Catholic law schools are equipped to prepare students in this way. Sounding a similar note, Michael Moreland warned about "extrinsicism" in the treatment or introduction of "Catholic" materials. But again . . . what is the "impact" of Catholic Legal Theory on the practice of law? Marc suggests there isn't much, in terms of how one files one's briefs, etc. But . . . what about how one balances one's work and personal life, how one treats one's family and friends (and clients and co-workers)? Here, the impact can be real and significant. Patrick, recalling Judge Noonan's work and example, noted that Catholics have particularly good reasons for understanding and appreciating what law is and does to people (see Persons and Masks of the Law) and so he thinks that highlighting the human and personal dimensions of these materials is a good way to be a Catholic law teacher.
Now . . . what about Mirror of Justice? What's it about? What's it for? What has it done and what could it do better? (One suggestion: More Chesterton! Indeed. And more cowbell?) Does it have value and, if so, what it is? Michael suggests that, perhaps, the blog sometimes lacks a focus (or when focus comes, it's on particular elections). Susan hopes we can find more ways to get active discussion and dialogue going among the bloggers. Rob wonders if the blog-form is being eclipsed by even more "short form" media -- A 500 word post takes a lot more time to write, and to read, than a 140 character Tweet. John points out that, despite the blog's opening post, the substantive focus of the blog has perhaps narrowed (maybe in response to the times and events) to religious-freedom questions. Lisa also recalled that part of the "original mandate" was not to zero in on First Amendment questions or "hot button" social issues. Of course, as Marc pointed out ("pedantically," he says), the blog (like any blog) needs content. ("Feed the beast!") This need makes it the case that it's better for people to feel free to post -- and to actually post -- in a kind of free-form and fresh way. Kevin observed that people sometimes miss the fact that blogs can be about "quick hits" or about stay-a-while engagement. And . . . the content stays "out there," for a while, and people might find the thoughts we leave years later.
Thanks very much to Villanova, to John Scarpa, and to Patrick Brennan for hosting!
Changes in laws and practices governing civil rights have often been advanced by members of the faith community, both lay and religious. In a speech given this week at Georgetown, Bishop Edward Braxton challenged Catholics to make our churches more welcoming to people of color, and for religious leaders “to take a more active role in bridging the racial divide, especially between young African-American men and white representatives of the law." More of Bishop Braxton's reflections on how the Church might foster racial unity--as well as his thoughts on recent officer-involved deaths of African American men--can be found in his recent pastoral letter The Racial Divide in the United States: A Reflection for the World Day of Peace 2015.
Last but not least . . . Kevin Walsh on "Marius Victorinus at MOJ." He opens with Judge Noonan's rule for dealing with religious-freedom scholarship and scholars, namely, that they and we are all situated persons with genealogies, histories, commitments, goals, etc. So . . . Kevin blogs. How is blogging -- at Mirror of Justice in particular -- relevant to "professing law"?
Kevin then did a close analysis of MOJ's opening post and "mission statement" and emphasized (drawing on, among other things, Ratzinger's Introduction to Christianity) the "Marian strand" of that mission. And, he asked, why might it be important to a group of Christian law professors that St. Augustine was moved and inspired by the fact (see Confessions) that the philosopher Marius Victorinus became a Christian? For us, as for Victorinus, the "idea alone" is not enough; he (and we) need the Church, which is not just an organizing principle for ideas. And, maybe it matters to people -- those who read what we write or learn from us in classes -- that we participate (and are known to participate) in a community and that we "reflect some light into the dark places of this world."
Kevin closed with a nice remembrance of Dan Markel who -- in Will Baude's words -- "made you a little more fearless when he took your ideas seriously." We can do that for each other (and he used his own area of federal jurisdiction as a possible example of where this can happen).
Susan's remarks on Evangelii Gaudium fit nicely with Michael Moreland's earlier talk on "Pope Francis and the Project of Catholic Legal Theory." A crucial starting point: Our work to develop a Catholic Legal Theory is not and cannot be separate from the Great Commission, from the mission of evangelization to which all Christians, like the Church, are called.
Susan starts with the word "joy" -- which appears more than 100 times in the document -- and reminds us that Pope Francis has insisted that all we do as Christians -- and this would include the development and study of Catholic Legal Theory -- must be animated by joy. This is relevant to questions, for example, about how we do what we do. Relatedly, we are called to be "beacons of hope in troubled times."
Also, it's not enough to learn or write about Christ; it is essential to encounter Him. Another theme in the document is the communal, and not only the solitary, nature of that encounter. So, do we Catholic legal scholars do all that we can and should to collaborate and cooperate? Additionally, "who do we speak to, and how?" We cannot speak only to ourselves, in small circles of friends. We have to run the risks that come with face-to-face encounters with others, and the risks of suffering that can come as a result of personal attacks, and the risks of the distortion that will sometimes hamstring our efforts.
Another, unifying or overarching, theme: Mercy, as the greatest of the virtues. Justice is part of the picture, and must be tempered by mercy.
Marc DeGirolami -- very fittingly -- is talking about the subject of "tradition and Catholic Legal Theory." He is focusing on a particular challenge, i.e., the fact that Catholic Legal Theory is often regarded, discussed, and presented as part of a "tradition" but . . . fewer and fewer people actually know what that particular tradition is or, indeed, what a(ny) "tradition" is. "What do we mean by 'tradition' when we invoke it?" Are we speaking sociologically, historically, normatively . . . ?
Another question: How much skepticism should we introduce, in our work or to our students, regarding the very idea of tradition and its moral force? Marc suggests a role for Catholic legal scholars, namely, that they can and should help students to appreciate that "tradition," actually, is not "utter bunk." We have to create conditions in which the claims and goods of tradition can get a hearing. We praise innovators -- destroyers! -- and not caretakers and stewards. (RG: Interesting that so many who profess to be unattracted to "tradition" are deeply attracted to "sustainability.")
More generally, Marc suggests, our work as law teachers should attend more to tradition in all courses and areas, not just Catholic Legal Theory. Our law students are entering into a learned profession, after all, and that entering-into goes along with -- at least it should -- an appreciation of and commitment to a certain inheritance.
" . . . to the Catholic Legal Project, that is." (We know about its relevance to the history and state of England . . . . Give us back York Minster, Tom!) Berg opens with a hat-tip to Admiral Stockdale -- "who am I, and why am I here?" -- and lays some groundwork (drawing from Hunter, Noll, and others) on the interesting and increases places of convergence -- especially with respect to moral and ethical questions -- between Catholics and at least some Protestants. And (drawing from Massa, et al.) he talks some about some worldview-and-framing differences, including those having to do with communities and institutions, and with dialectic and analogy.
Thesis: Catholicism is characteristically analogical and Protestantism characteristically dialectical, but both are and should be present in both. (See this paper of Tom's for an earlier elaboration of something like this thesis in the context of a discussion about Murray and Neibuhr.) Discussing "the market economy," or "unions," or "democracy," Tom provides examples of how these two forms or kinds of arguments can complement each other.
Tom closes with a discussion of his own area of (great) expertise, namely, the law of religious freedom. Both distinctively Catholic and distinctively Protestant arguments and emphases are needed, he says, to provide strong and sufficient protections for religious freedom. Catholic arguments are essential to the religious freedom of institutions and communities, Tom contends. On the other hand, Protestant arguments might be comparatively more important when it comes to justifying exemptions and accommodations (from anti-discrimination laws, for example).
Patrick Brennan follows Michael's reflection on Francis with "Problematics of Catholic Legal Theory under the Roman Regime of Novelty (since 1965 or so)." How does it happen, Patrick asks, that (a) we have a Pope who is enormously popular and that (b) serious observers like Ross Douthat are asking if we are in a crisis, and if "Pope Francis will break the Church"? Patrick agrees that the Church is in crisis -- "autodemolition of the Church through relentless novelty" -- and understanding this crisis-context is essential to understanding, and doing, the Catholic Legal Theory project.
Many deny, or ignore, this crisis-context, in various ways and with various untenable explanations, rationalizations, or "spurious optimism." Patrick bracingly presses the group to see, and understand, this context and to confront more clear-eyedly its implications and roots. Or, quoting Pope Paul VI . . . "Enough!" The novel "worship of dialogue" is a grave threat, Patrick warns, and can only distract and undermine Catholic Legal Theory (and much else). The call, instead, is to evangelize and to "make disciples of all nations"; that is, to teach and to do so with authority.
In Patrick's view, the social and other problems that Catholic Legal Theory purports or aims to address can only be addressed constructively if those engaged in the project look back before the Second Vatican Council avoid the distortions of novelty. The church-state and religious-liberty debates provide, he says, a good example of a context where such looking-back is seriously needed. The world does need Catholic Legal Theory -- and the Church -- more than ever.
Next up, Michael Moreland on "Pope Francis and the Project of Catholic Legal Theory." What contribution is he making to the Project? He starts in a "negation" mode and warns about overstating the role and importance of the Pope or popes. "Catholic Legal Theory" can be, but perhaps should not be, excessively refracted through or framed in terms of, the thought of the current pope.
That said . . . what about Francis? What about the significance of his being "Argentine," "Jesuit," "Spiritual Director and Religious Superior," "Francis," and "Post-Vatican II"? Francis has sounded a theme, Michael suggests, of a "theology of encounter": "Being a Christian is not the result of an ethical choice or a lofty ideal, but the encounter with an event, a person, which gives life a new horizon . . . ." Pope Francis was also heavily influenced his thought by the experience of the Church in Argentina, and with Peronism, and with Argentinian anti-capitalism and by what Michael calls the Church's "historically fraught relationship to the state." His role as a spiritual director in the Ignatian tradition is another formative influence: He has written, for example, about the "fundamental realities" that "we recognize and abhor our sins and their roots in the spirit of the world, and we converse about all this with Jesus 'suspended on the Cross.'"
Michael also shows and talks about some particular paintings and works of art -- including his favorite painter, Chagall -- that have, in interesting ways, shaped and marked Pope Francis, in particular his Marian devotion. For the future . . . (1) less speculative and more pastoral; (2) anti-liberal (economically); (3) reform from "the periphery"; and (4) new "source churches" in global Catholicism.
Michael's talk is called "Challenging the Common Assumptions regarding Liberty." He reflected on his nearly 3 decades of law teaching and talked a bit about the different courses he teaches, how he teaches them, and what Catholicism and/or Catholic Legal Theory contribute to them. One of his courses is, in fact, "Catholic Legal Theory" and he sketched the structure and aims of that course and emphasized his efforts to get students to think about freedom, restraint, and liberty, and about how -- drawing on the classic movie Groundhog Day -- being the "sovereign chooser" is not really freedom. One is more free when one chooses to live for others, and as a gift for others. But, as Michael recounts, many of his students are afraid to "judge," evaluate, or rank different choices -- in part because of fears about the reality of human frailty and the inevitability of human failure.
