It should be obvious that the project here, "Catholic legal theory," requires or depends upon, if it is to be (even) coherent, several reliable (if contestable) definitions. One of those defintions pertains to "law" and, derivatively, "legal." The Catholic tradition isn't impoverished when it comes to the question of what it takes for something to stand as law or legal. In the (correct) view of that holy tradition, what the civil legislature does that fails to serve the common good also fails, for that reason, to be law in the full or focal sense of "law" (and therefore can and, subject to the control of the virtue of prudence, must be disobeyed in circumstances in which disobedience would serve the common good). Also in the view of that same holy tradition, law is not only, or in the first instance, the deliverance of the civil authority. There is always and earlier the higher law, that of Christ the King. Given Christ's kingship over all, His higher law (authoritatively interpreted by the Church) must serve as the governing norm if the civil polity is to seek the common goods, earthly and eternal. Law, even Christ's, doesn't exhaust the field, however. Mercy and forgiveness have their respective places in the divine economy, thank God, but they do so because the same God first (and thereafter His civil viceregents) ordered humanity to the common goods. Mercy and forgiveness, in their true respective senses, depend upon an antecedent architecture in which the legisator has truly legislated (necessarily for the common goods). It's high time certain discussants of the current predicament, including those souls dissecting, promoting, etc., the incessant (and oddly ultramontanist) soundbites issued from a guesthouse at Rome, recall that the human mind is in virtue of Creation itself a legally "measured measure." Forgiveness, therefore, is (as it were) graciously parasitic on law. Thank God for His forgiveness, but first for His law.
Wednesday, December 10, 2014
Law?
Monday, December 8, 2014
Herbert McCabe, OP on the Immaculate Conception
We often remark here at Mirror of Justice that the central questions of Catholic legal theory are those of human anthropology and human nature. (Even if, like Elizabeth Anscombe, I'm not at all sure that [modern] reflection on "the self" is a meaningful or important philosophical question, see Faith in a Hard Ground: Essays on Religion, Philosophy, and Ethics at p. 67.) On what it means for said human nature to be redeemed, here is an excerpt from a homily by my late friend Herbert McCabe, OP on today's feast:
In Mary the redemption reaches down to the roots. In us it is not yet radical, but through our death in Christ and our resurrection in him it is to become so. So far we are only sacramentally redeemed, in the sacramental death and resurrection of baptism - this is something real, it is not merely play-acting, but it is only sacramental, it is not yet in our flesh. The redemption of Mary is pre-sacramental, she does not need baptism or Eucharist, she needs Christ only and has him in her existence in her very flesh. For this reason her redemption, which is pre-sacramental, is a sign and foretaste of the post-sacramental, the life of the risen body, the future kingdom. Her Assumption is the beginning of the resurrection of all who are taken up into Christ’s resurrection.
This, then, is how we are to cash the doctrine of the Immaculate Conception. This is the difference in practice that the doctrine makes. We are not to look for this difference in the biography of Our Lady, in her character or in her behaviour. In this sense the doctrine is not about that. It is not, for instance, about the fact that she committed no sin. You could hold, as Thomas Aquinas did, that she was sinless and still deny, as he did, the Immaculate Conception. The Immaculate Conception does not make that sort of difference to Mary; it did not make any noticeable difference to her - as I have suggested there is no reason to suppose that she knew about it. What it makes a difference to is our understanding of what it means for her to be redeemed and therefore what it will eventually mean for us to be redeemed. To assert this doctrine is to assert the mysterious fact that our holiness will not stop short of the roots of our being, that we too are to become radically holy.
And this is a strange doctrine. At the moment we are forgiven sinners; we are forgiven but we are people who have been sinners, we have been subject to the sin of the world, moreover we have at times opted for the sin of the world. Both things are true: we have contrition for our sins even as we celebrate our forgiveness. Being realistic and honest and therefore contrite about our sins is the sign and result of our being forgiven. (That is why confession is an important part of the sacrament of Penance.)
What we celebrate on the feast of the Immaculate Conception is that Christ’s love for us brings us further than this. What he wants for us is not just that we should be forgiven sinners but that we should be as though sin had never been. Redemption for us will involve a rebirth from an immaculate conception. Our redemption will not just be the successful end of a journey, the triumphant culmination of the history of man, but in some utterly mysterious way we will be freed from our history, or our history will be taken up into some totally new pattern in which even our sins become part of our holiness. We will somehow be able to accept them as God accepts them. There will be no more sorrow for sin, no more remorse over the past, no more contrition; we will be radically and totally free: ‘And all things shall be well and all manner of things shall be well ... when the fire and the rose are one’ (God Matters, pp. 213-14).
Timely (and timeless?) wisdom from Justice Brennan
From his concurring opinion, in McDaniel v. Paty (1978):
That public debate of religious ideas, like any other, may arouse emotion, may incite, may foment religious divisiveness and strife, does not rob it of constitutional protection. . . . The mere fact that a purpose of the Establishment Clause is to reduce or eliminate religious divisiveness or strife does not place religious discussion, association, or political participation in a status less preferred than rights of discussion, association, and political participation generally.
Adherents of particular faiths and individual churches frequently take strong positions on public issues including . . . vigorous advocacy of legal or constitutional positions. Of course, churches, as much as secular bodies and private citizens, have that right. . . .
The State's goal of preventing sectarian bickering and strife may not be accomplished by regulating religious speech and political association. The Establishment Clause does not license government to treat religion and those who teach or practice it, simply by virtue of their status as such, as subversive of American ideals, and therefore subject to unique disabilities . . . . Government may not inquire into the religious beliefs and motivations of officeholders -- it may not remove them from office merely for making public statements regarding religion, or question whether their legislative actions stem from religious conviction . . . ..
In short, government may not, as a goal, promote "safe thinking" with respect to religion, and fence out from political participation those, such as ministers, whom it regards as overinvolved in religion. Religionists, no less than members of any other group, enjoy the full measure of protection afforded speech, association, and political activity generally. The Establishment Clause, properly understood, is a shield against any attempt by government to inhibit religion as it has done here . . . . It may not be used as a sword to justify repression of religion or its adherents from any aspect of public life. . . .
Our decisions under the Establishment Clause prevent government from supporting or involving itself in religion, or from becoming drawn into ecclesiastical disputes. [n26] These prohibitions naturally tend, as they were designed to, to avoid channeling political activity along religious lines, and to reduce any tendency toward religious divisiveness in society. Beyond enforcing these prohibitions, however, government may not go. The antidote which the Constitution provides against zealots who would inject sectarianism into the political process is to subject their ideas to refutation in the marketplace of ideas, and their platforms to rejection at the polls. With these safeguards, it is unlikely that they will succeed in inducing government to act along religiously divisive lines, and, with judicial enforcement of the Establishment Clause, any measure of success they achieve must be short-lived, at best.
Oral argument before Tenth Circuit panel to be held this morning in the Little Sisters of the Poor mandate challenge
A three-judge panel of the United States Court of Appeals for the Tenth Circuit will hear oral argument this morning in three cases brought by religious nonprofits seeking relief under RFRA and the First Amendment from compliance with the federal government's contraceptives mandate. These three cases are Little Sisters of the Poor v. Burwell, Southern Nazarene University v. Burwell, and Reaching Souls International v. Burwell. The three judges are Judge Scott M. Matheson, Jr., Senior Judge Monroe G. McKay, and Senior Judge Bobby R. Baldock.
Of these three cases, the Little Sisters of the Poor case is probably the highest profile because the Little Sisters' case was only of only two in which religious nonprofits who sought preliminary relief were without it by late afternoon on New Year's Eve 2013. Justice Sotomayor's grant of temporary relief to the Little Sisters that evening , followed by the full Court's provision of such relief a few weeks later, was covered by national press. (The other case was Notre Dame's, but Notre Dame did not seek the same emergency Supreme Court relief that the Little Sisters sought.)
Although the complaint was filed over a year ago, this morning's hearing is the first time that lawyers for the Little Sisters of the Poor (as well as two Christian Brothers entities with whom the Little Sisters offer a health benefits plan) will appear in a courtroom with government lawyers to argue in person. Everything else has been done on paper.
The arguments were originally scheduled for September, but ended up being moved back to today. As the Little Sisters have noted: "December 8th is the feast of the Immaculate Conception, the patroness of the United States and our Congregation’s patroness. Little Sisters around the world renew their vows each year on the feast of the Immaculate. Please be assured of our prayers for you on this beautiful feast day."
This kind of correspondence is not without precedent. The Supreme Court heard oral arguments in Hobby Lobby on March 25, the Feast of the Annunciation. (Admittedly, the Catholic Church does have many feast days.) In any event, even if you can't make it to the Byron White United States Courthouse in Denver this morning, please keep the Little Sisters, Christian Brothers, and their lawyers in your prayers. (If you're Catholic, you can do this while discharging your duty to attend Mass on this holy day of obligation.)
Sunday, December 7, 2014
Martha White Price, UST Law: "Why I Fell in Love with Rural Legal Practice"
There is a crying need for lawyers in rural areas, especially the rural Midwest. Despite the opportunities there to serve people, opportunities available in a tight job market, students often are reluctant because they wonder whether the practice will be satisfying. Here is a wonderful piece from St. Thomas law student Martha White Price (class of 2015) on why it is satisfying. Martha currently clerks in the public defender's office for Owatonna, MN (population 25,600) and surrounding rural areas, doing highly substantive legal work. She concludes her article:
Volunteering to clerk in a rural area was a game changer for my law school career. I encourage every law student to give it a shot. Even if you don’t fall in love like I did, you will certainly sharpen your skills, make friends, and help people who desperately need it.
I hope her experience inspires other students. MOJ-ers, I encourage you to pass this--or some experience like it--on to your students.
America the Supranational
The recent edition of Modern Age includes a welcome symposium devoted to "American Foreign Policy." The essay contributed by James Lucier, "former staff director of the U.S. Foreign Relations Committe," stands out. Lucier presses for the US Constitution on the ground that it recognizes that "man is a fallen creature and ... human nature will never change." It's true, of course, that human nature will never change. It's also true that we humans are all fallen creatures. What Mr. Lucier refuses to acknowledge, because he is out to defend the Anglo-American legal indifference to salvation, is the power of the supernatural. Lucier rages that under civil (as opposed to common) law, "[t]he right of the individual is subordinated to the order of the common good." The priority of the common good should have been clear to Mr Lucier, but his preference for "the individual" (his term) triumphed.
MOJ and Father Robert Barron’s Reflections on the New Evangelization (Part 2)
Some months ago I published a post (here) in which I recounted two of the seven themes on the New Evangelization that Father Robert Barron addressed in a lecture at the Union League Club in Chicago sponsored by the Lumen Christi Institute. (An earlier version of the talk that Father Barron delivered can be found here). These first two themes were to (1) “lead with beauty” rather than goodness or truth and (2) a warning not to “dumb down Catholicism” but to explore the riches of the Catholic intellectual tradition and to share it with others. In the prior post I tried to connect these themes to the MOJ project and the work of Christian law professors. Here I take up the third of Father Barron’s themes concerning the New Evangelization.
3. Preach with New Ardor
The injunction to “preach with new ardor” comes from Pope John Paul II. In March 1983 the Pope addressed the Latin American Bishops Conference (“CELAM”) gathered in Port-a-Prince, Haiti. He said that the Church needed a “New Evangelization that is new in ardor, new in method, and new in expression.” (The quotation can be found here). The new evangelization is not new in content in that the Church passes on the faith in its integrity as she has received it. Although our understanding of the faith deepens through the process of development over time, “Jesus Christ is the same yesterday, today, and forever” (Heb. 13:8). However, the New Evangelization is new in that it is a self-conscious encounter with modern men and women in their contemporary culture and circumstances.
The need for ardor, Barron said, goes back to Aristotle’s comment in the Rhetoric that people only really listen to an “excited speaker” – to someone genuinely convinced of the importance of that which he or she is trying to communicate.
I think we have all encountered the truth of this in the classroom – whether as students or teachers. Enthusiasm can be infectious and indifference breeds indifference.
The source of this ardor is the good news, the glad tidings of the Christian message: Jesus Christ is risen from the dead! Declaring this good news is evangelization, and evangelization is, as Paul VI declared in Evangelii Nuntandi (¶ 14), the Church’s reason for being: “She exists in order to evangelize.” This good news is not a myth or a literary device or a symbol of the fulfillment of human longing. It is a fact in human history. Proclaiming the historical fact of Jesus’ bodily resurrection has proven to be a stumbling block to some men and women of every age, but this astounding and radical claim is the heart of the Gospel message.
Expressing ardor for the Gospel as a law professor (whether as a teacher in the classroom, as a scholar, or as a faculty colleague) is a delicate matter full of risk – risk of ridicule (because religion is viewed in the contemporary academy as anti-intellectual, and Catholicism in particular is seen as corrupt, patriarchal and misogynist), and risk of being misunderstood (i.e. where the ardor of conviction is taken as intolerance for the views of others). The law school classroom is for teaching students the substance of the law, the skills of legal analysis, and the various theories behind law. Because law is a normative discourse, teaching the law invariably involves discussions of a normative nature. Still, one shouldn’t see the law school classroom primarily as a platform for teaching theology, scripture, or catechesis, although there are occasions when this will and ought to take place as anyone who has taught a course on Catholic social thought and the law, the Bible and the law, or canon law can attest.
Rather, the ardor for the faith should be apparent to students and colleagues alike in what one holds to be true and how this is reflected in how one lives his or her life. Because “[m]odern man listens more willingly to witnesses than to teachers” the “first means of evangelization is the witness of an authentically Christian life” (Evangelii Nuntandi ¶ 41). The hope is that others will see one’s faith not as a badge of cultural identity or family heirloom all but forgotten and safely ignored, but as a thing of beauty – as something that inspires ardor, as something worth living for and (if need be) dying for.
Here Father Barron reminded the audience that, at its root, Vatican II was a missionary council. Its primary aim was not the reform of the Church but the “Christification” of the world. The Council did, of course, institute several reforms (most notably the liturgy) and laid the groundwork for several others (e.g. the Synod of Bishops). Some of these reforms were begun under Paul VI and John Paul II, but others may only now be brought to fruition (i.e. Pope Francis’ reorganization of the Roman Curia). The point of all these institutional changes is to not to help the Church conform to the world and its times, but to make the Church a more apt vehicle for the proclamation of the Gospel.
I would add that, consistent with Vatican II, it is incumbent on those institutions that identify themselves as “Catholic” to reflect this ardor for the Gospel. Too often, it seems, Catholic institutions see their professed identity as a burden to be endured rather than a joy to be celebrated. At least, that is what I have generally observed in my study of American law schools operating under Catholic auspices. (There are, of course, a few discrete exceptions).
These law schools regard their affiliation as so many rocks that act as ballast to be tucked away, out of sight in the hold of the ship – ballast that weighs them down and keeps them from moving “forward” at the desired pace. True, ballast is something that that must be carried, but in the case of a genuine Catholic identity the burden is light (cf. Matt. 11:30). It is a weight that does not impede but enables. It keeps the ship from listing on a calm day, and steadies it in stormy seas.
Not a millstone (Luke 17:2), it is the pearl of great price (Matt. 13:46). It is also both a lodestone and the North Star (the immanent and the transcendent) that gives the school a sense of direction. It alerts passengers and crew alike “This is who we are and where we are going” but leaves the specific route to its current occupants.
That some in contemporary culture will reject this identity (“pearls to swine” Matt. 7:6), that some will walk away is to be expected (John 6:60-65). That some colleagues in the academy will think less of a school because it overtly and meaningfully identifies itself as “Catholic” is an inevitable part of the price of discipleship. But many wander through Chartres cathedral or Sainte Chappell and stare up in amazement for a few moments and then walk away. But some lookup and want to know more, and the Church in her ardor must be prepared to share the good news that she has learned with joy.
I suspect that Barbara Armacost and Rob Vischer will address at least some of these themes at the Law Professors Christian Fellowship-Lumen Christi Institute program at the University Club in Washington, D.C. on January 2, 2015 on “The Vocation of a Christian Law Professor” (see here). It will be interesting to hear what they have to say.
Mourning The New Republic--at Slate!
At Slate, media professor David Greenberg mourns the effective death of The New Republic, which he attributes not so much to digital-media economics as to the fact that the magazine's one-time "heterodox liberalism--the willingness (indeed the eagerness!) to test liberal thinking from within the liberal family—is now being squeezed":
Internet journalism has made it easy to find opinions that confirm one’s own beliefs and flatter one’s prejudices... The left and the right are retreating into cocoons of information and opinion, on cable TV and social media....
[The end of TNR is regrettable because:] Conservatives need a liberal magazine that’s unpredictable enough to make them want to read it. Liberals and leftists need a magazine that will prod them to question their beliefs, and revise or strengthen them.
I'm glad Slate was willing to publish a piece that scores a bullseye on exactly what's wrong with ... Slate. I'm refusing to read the comments to the piece, but I can only imagine they will validate everything Greenberg says about Internet readers expecting "cocoons of [confirming] opinion."
Saturday, December 6, 2014
Forgiveness
In a world in which whatever doesn't violate the harm principle goes, forgiveness is a mostly idle concept. In the real world, however, where we sin in all kinds of ways and degrees that elude Mill's impoverished and arbitary norm, forgiveness is the gift of life. Literally. Forgiveness, often mistakenly analyzed as an optional piece of supererogation, is required by the very requirements of proper self-love itself, and it is therefore required without condition. The refusal to forgive works an abominable self-annihilation. The free and respectful granting of forgiveness liberates. Forgiveness does not entail reconcilation -- forgiveness is sufficient unto itself, as all of us who have been forgiven by the Divine Judge should be quick to announce. I argue the (controversial) case for UNconditional forgiveness here
Friday, December 5, 2014
The Story of Miracles, Blessings, and a Possible Future Saint as Told at a Faith-Based University
One of the regular themes of the Mirror of Justice is the distinct value of religiously-affiliated higher education, most particularly in the law school environment. The following story does not involve legal education but does illustrate the small miracles and serendipitous (read: divine) encounters of people of faith that we see again and again in faith-based educational settings. God’s ways may be mysterious, so it is hardly surprising that we are more likely to perceive those ways at a faith-based school where we are open to those mysteries.
My daughter Katie is a sophomore at Notre Dame. Football Saturdays, of course, are a legendary part of the Notre Dame experience. When the Fighting Irish play at home, a host of visitors come to campus. On the Saturday of a recent home football game (we won’t say anything more about the game itself — it suffices to say it was a game in the second half of the season), my daughter was walking to the stadium with her two roommates, Jackie and Maddy. They happened upon a tailgate party hosted by a young couple to raise funds for the Cystic Fibrosis Foundation. Intrigued by this tailgate with a purpose, because Jackie has cystic fibrosis, the group of three Notre Dame sophomores stopped to talk with the hosts. 
They learned that the couple running the Cystic Fibrosis Foundation — one a graduate of Notre Dame and the other of St. Mary’s — had been blessed only three weeks earlier with the birth of a daughter, Nora. But Nora was diagnosed with cystic fibrosis and soon was in critical condition as her bowel accidentally had been perforated. Jackie told the parents that, like their little new daughter, she too had the condition, presenting to them an in-the-flesh example of a successful young woman at a leading national university who was joyfully overcoming cystic fibrosis. The smiles grew larger all around, even as the tears began to flow. Truly Providence had brought these five people together, blessing both the three Notre Dame students and Nora’s parents.
But the Notre Dame bond ran still deeper, as another spiritual stage had been set. The mother of the new-born with cystic fibrosis mentioned that, when her little daughter was going into surgery with little chance of survival, she had invoked the help of an American candidate for beatification, Father Solanus Casey and had asked his followers around the world the join in prayer for Nora. Venerable Solanus (or Barney) Casey, who had been a beloved priest in Detroit with a heart for the sick, lived from 1870 to 1957. Indeed, the mother emphasized she had been careful to invoke the help only of Solanus Casey and had asked recipients of her email message to do the same.
Displaying the photograph proof, Nora’s mother had touched a Father Casey relic to the baby’s cheek and then watched the baby’s face transform from an expression of pain to one of bliss. Little Nora survived and continues to slowly recover, contrary to the expectations and beyond the explanations of her physicians. (Support for the family by generous donors is most appreciated: here.) Nora’s mother is submitting the evidence of this miracle to the Vatican in support of Father Casey’s cause. 
As this small group of students and Nora’s parents celebrated God’s grace together, Nora’s parents were amazed to find how well informed my daughter Katie was about subject of beautification in general and about leading American candidates in particular. As a freshman seminar last year, Katie had studied American saints and conducted research on the cause of American candidates for beatification or canonization. As Katie has told her seminar professor, Kathleen Sprows Cummings, having been able to study the subject in that class allowed Katie to share more fully in that beautiful moment with Nora’s parents on the Notre Dame campus months later. This meeting ended with the parents showing Katie, Jackie, Maddy, and Mikey pictures of Nora smiling (and, yes, as a further miracle, she was able to smile even at such a young age) while holding the relic of Blessed Father Casey. Keep Nora and her parents in her prayers and continue to seek the intercession of Father Casey.
God of course moves in the lives and experiences of those who rely on Him while attending non-religious schools, and the power of the divine breaks through any attempted line of separation. God meets us wherever we are faithful. But through the spiritual environment created, the deliberate development of a faith-based curriculum, and the faithful intentionality of event-planning, religiously-affiliated schools are uniquely open to the movement of God.
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