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.

Saturday, December 29, 2012

Helplessness

"[T]he liberal constitutional State is completely confused with respect to its character and behavior. It cannot reason. It cannot hear the messages of nature spoken by organic corporations. It cannot see society’s final spiritual end or justly coordinate men as they actually are, body and soul. It has no effective head to administer its accidental, arbitrary, and willful laws. Lacking intelligence, it must increasingly resort to force to survive, even though this unintelligent use of force must contribute mightily to its own destruction. If it tries to appeal to the support it has from 'the majority' of traditional-minded people, it is nonetheless not appealing to justice, but only to force of numbers, a force indeed that a party can manipulate better than the State can. In point of fact, the history of liberalized constitutional states is one of helplessness, lack of confidence, and paralysis, making any decisive action, whether just or arbitrary, impossible."  John Rao, available here , at page 58.

Does the situation of helplessness and of ever-increasing resort to force described by Rao remind you of our nation's present predicament?  Maybe just a litte?  Guns, murders, budgets, "fiscal cliff," bickering . . . .

Thomas Becket

A blog devoted to Catholic legal theory can hardly let pass today's Feast of St. Thomas Becket (c.1181-1170). Peter Glenville's 1964 film with Richard Burton as Becket and Peter O'Toole as Henry II is a classic. More recently, the eminent Tudor historian John Guy (author of a number of fine books on Thomas More) has written a splendid biography of Becket--a taste here:

For his attack on the church's claim of immunity from secular jurisdiction, Anglo-American lawyers and constitutional historians in the nineteenth century would put on rose-colored spectacles and reinvent Henry as a legal reformer avant la lettre, a pioneer of fair trials and equality before the law who paved the way for some of the most important clauses later incorporated into Magna Carta and the U.S. Constitution and Bill of Rights. In reality, however, his actions showed that the rights of the accused could always be overridden by political considerations and the king's will. Far from remodeling the legal system and the courts in the interests of justice and the common good, Henry sought to strengthen his own power. And far from being a pioneer of "equitable" or "impartial" justice, he happily presided over his own court in the Battle Abbey case and at Becket's trial for embezzlement and false accounting at Northampton, acting simultaneously as chief counsel for the prosecution, judge, and jury. In response, Thomas would prove that a middle-class Londoner could transcend his social origins and challenge a ruler who he believed was degenerating into a tyrant, but it would cost him his life. Thomas More would take a similar path in Henry VIII's reign, and it may be no coincidence that More's working library contained many of the same books as Becket's.

John Guy, Thomas Becket: Warrior, Priest, Rebel (Random House, 2012), p. 338.

Chicago's "unfortunate, tragic milestone"

This is horribly sad. NBC is reporting that Chicago has just recorded its 500th murder in the year 2012. Rahm Emmanuel, the mayor, says this is "an unfortunate and tragic milestone." That, I submit, is an understatement. Why is the country not in an uproar? Why is Chicago not in an uproar? Have we become inured to the violence in Chicago and other cities with appallingly high murder rates? Have we stopped asking why so many people hold human life in such contempt? The country was rightly shocked and outraged by the killing of school children in Connecticut. That was unpseakably evil. But where is the outrage about what happens virtually every day and night in Chicago and places like it? Many of the victims of these atrocities are children, too. What I am asking for is not lip service from politicians, or cheap, gimmicky, feel good, faux solutions. We need a serious national conversation about the deep sources of the problem. Perhaps this "unfortunate, tragic milestone" will be the occasion for such a conversation. I certainly hope so. It is long overdue.

Thursday, December 27, 2012

An outstanding piece on Catholic schools and the "new evangelization"

This piece, by Detroit's Archbishop Vigneron, is wonderful.  Read it, share it with everyone you know, and commit yourself to doing all you can to strengthen and sustain Catholic schools and their mission.  A bit:

I also believe that in order to re-launch Catholic school education, fulfilling the

mission Our Lord is calling us to fulfill through our schools, we need to become

agents of a fundamental renewal of our Catholic schools.  Here I look to the great

scholar Alcuin, who was the schoolmaster of Charlemagne and a very significant reformer

of Catholic education around the turn of the 9th Century and one of the leading lights of

the Carolingian Renaissance.  Alcuin’s efforts at launching a new education project

bore great fruit, reshaping Christian culture over 1000 years ago.

 

Today,  we’re Alcuin.  Christ is calling us “(to) put out into deep water” in the work of

renewal.  We must be “deep” in our selfexamination, “deep” in the changes we are

willing to make for the sake of our mission, and “deep” in the boldness with which we

will launch out into a new way of educating our children.  Half-measures will not be

sufficient to do the job.  Our schools need our commitment, our self-investment, and

our resolve if they are to become the instruments of the New Evangelization Christ

wants them to be.  Our children need what we have to offer in our schools, which is to

say they need Jesus, and woe to us if we fail them.  Jesus himself expects this of us, and

we cannot disappoint him.  I am resolved to spend the rest of my time as Archbishop of

Detroit working to strengthen our schools.  I know that you join me in that resolve,

because we know that nothing less than our children’s salvation is at stake.

7 Lk 5:4.

 

"Religious Exemptions and the Liberal State"

Here is Stanley Fish's "Christmas Column," "Religious Exemptions and the Liberal State."  The piece is, among other things, a reflection and reaction to Brian Leiter's new book, Why Tolerate Religion?  As Fish puts Brian's question:  "Does the undoubted centrality of religion in the lives of its adherents suffice to justify exempting it from generally applicable laws?"  Fish ends his discussion with this:

If Leiter is right and religion is no different from any other comprehensive doctrine (John Rawls’s term), why should there be a religion clause? There is of course a standard historical answer to that question. The desire for religious freedom motivated those Europeans who came to North America in the 17th century. It makes sense that the founding document of their new nation should protect the individual from state-sponsored religious discrimination (the Free Exercise clause) and protect the state from becoming an appendage of religion (the Establishment Clause). Leiter, however, is not interested here in the history of the matter. He is seeking, as he says repeatedly, a principled philosophical justification of the special treatment religion seems to receive in the Constitution. He doesn’t find one and comes to conclusions that render the religion clause largely superfluous.

He thus participates in a project inaugurated by the first important establishment clause case of the modern era, Everson v. Board of Education (1947), a case in which the majority shifted the focus from the question of whether public funds were being expended for religious purposes to the question of whether public funds were being distributed evenhandedly to religious and secular institutions alike. A religion clause issue became an equal treatment issue. In dissent, Justice Rutledge complained that by so reasoning the majority ignored “the religious factor … thereby leaving out the only vital element in the case.” Ignoring the religious factor or generalizing it out of sight has been the approved strategy of religion clause jurisprudence ever since. In fact it might be said that the purpose of religion clause jurisprudence, a purpose Leiter joins, is to ensure that the religion clause causes as little trouble as possible.

 

Matt Milliner responds to Mark Lilla on Gregory's "Unintended Reformation."

Here.  We've talked a fair bit about Gregory's book  here at MOJ, and so I think Milliner's piece will be of interest.  

UPDATE:  Howard Kaintz, at The Catholic Thing, has an engaging review of Gregory here.

NCR's Person of the Year: Chief Justice Roberts

Find out why here.  A bit:  

From federal budget debates echoing with catch phrases like "subsidiarity" and "common good," to a vice presidential contest between two members of the faith, it's clear: Catholics are engaged in the larger culture like no other time in the nation's history. We help shape national conversations and hold influential posts that affect lives across the country in profound ways.

Our choice for person of the year acknowledges this growing reality. Decisions made by him and his court, which currently includes a total of six Catholics, altered in a fundamental manner the way in which U.S. politics are conducted, ensured that a major policy goal of the U.S. church for almost a century will be implemented, and limited civil law's reach into the personnel policies of religious institutions.

For 2012, our person of the year is John Roberts, chief justice of the Supreme Court of United States of America. . . .

Our person of the year comes from the Catholic milieu, formed and educated in its institutions. He is reserved and circumspect in public, has a reputation for being a family man and an active Catholic who attends his children's sporting events. His wife, Jane, also a lawyer, is active in such nonprofits as Feminists for Life (which gave qualified approval to the court's health care ruling) and the environmental group Citizens for Affordable Energy and, in the recent past, as a member of the advisory board of the Washington Home and Community Hospices.

Roberts does not hide his religious affiliation, but he also demonstrates that while religious attachment may provide a philosophic underpinning for decisions with ethical significance in public service, it doesn't guarantee unanimity of thinking or consensus on such issues. . . .

 

 

Wednesday, December 26, 2012

Prophecy and Gift

 

During the holy season of Advent Christians, but especially Catholics, are reminded of the role of prophecy in faith as we read or hear many of the daily readings that are taken from the prophecy of Isaiah. Prophecy has a multi-faceted role for people of faith. One dimension of prophecy’s function is to foretell of things that are to happen in the future, but another is to ask the believer if the tenets of faith have been forgotten, put aside, or intentionally ignored when evidence suggests that these precepts are not a part of the believer’s life.

During Advent, we Christians often hear readings from Isaiah’s prophecy, and the several functions of prophecy come into play. Thus, we are reminded of the coming of Christ. But why should this happen? The answer is clear to the believer: because I have sinned—I have turned intentionally from God and what He has asked of me. But there is hope for rectification of this. And this is where the dimension of gift comes into play.

Christ is the gift of God Himself for the remission of sins and for the salvation of many—the many who hear the voice of the prophet and acknowledge that there is something amiss in one’s life because the believer has turned from God and His ways. In essence, the Giver is the gift because as Saint John’s Gospel reminds us, God so loved that world that He gave His only son so that we might live with God forever.

As we progress through Christmastide, we are continuously reminded of this inextricably related prophecy and gift. We are also simultaneously reminded of the many gifts we have received in our lives, in spite of the disappointments and difficulties which confront us, and the need to thank God and the many kind people He sends our way to help shoulder the burdens of disappointment and difficulty.

In this regard I thank the many kind people who have written to me informing me of their prayers in view of the health complications which I have been facing—lymphoma and its metastasizing in the central nervous system. But even in this difficulty I find the reminder of prophecy and gift and take hope knowing that both apply to me, too, if I take the time to acknowledge this. Of course, we all face the same destiny in our human existence: this life will assuredly come to an end so that the eternal one may begin. I have come to realize that my own recognition of this inevitable and universal human destiny has a bearing on what each one of us who are believers does in his or her earthly life. In this regard, I pray that God will offer me some time to attempt to offer a few simple and humble thoughts that have a bearing on what we at the Mirror of Justice do in our human lives as teachers and as promoters/developers of Catholic legal theory. Of course, it probably need not be said, but I shall say it nevertheless: these two earthly tasks have a relationship with God’s prophecy and the gift that He has given us.

A blessed and joyous Christmastide to you all.

 

RJA sj

 

Tuesday, December 25, 2012

Reflections on the Meaning of Christmas and the Real War Against It

Rabbi Michael Lerner writes that Christmas and Chanukah share a spiritual message: that it is possible to bring light and hope in a world of darkness, oppression and despair. With regard to Christmas in particular, he says: “Christianity took the hope of the ancients and transformed it into a hope for the transformation of a world of oppression. The birth of a newborn, always a signal of hope for the family in which it was born, was transformed into the birth of the messiah who would come to challenge existing systems of economic and political oppression, and bring a new era of peace on earth, social justice and love. Symbolizing that in the baby Jesus was a beautiful way to celebrate and reaffirm hope in the social darkness that has been imposed on the world by the Roman empire, and all its successors right up through the contemporary dominance of a globalized rule of corporate and media forces that have permeated every corner of the planet with their ethos of selfishness and materialism.”

Fox News and their ideological compatriots denounce what they describe as a War on Christmas. But John Brueggemann, writing in Lerner’s Tikkun (see here), is not moved by the crocodile tears of Fox News. Nonetheless, he is concerned about the real war on Christmas: “There is a war under way. But it is not about whether a Christmas tree can be mounted here or there. It is about whether the market will define the sacred. Advent invites Christians to do exactly the opposite of what the Christmas shopping season urges: slow down, get ready for something out of the ordinary, look to the most important promises of God and neighbor, and ponder what gifts we have to offer. For Christians, Jews, Muslims and other people of faith seeking a different sense of time and a different future for the world, we share a common cause in facing this threat together.”

I went to a solstice celebration the other night. Rabbi Lerner makes sense of that celebration, “Radical hope is also the message of Christmas. Like Chanukah, it is rooted in the ancient tradition of a winter solstice celebration to affirm humanity's belief that the days, now grown shortest around December 23rd, will grow long again as the sun returns to heat the earth and nourish the plants.  Just as Jews light holiday lights at this time of year, so do Christians transform the dark into a holiday of lights, with beautiful Christmas trees adorned with candles or electric lights, and lights on the outside and inside of their homes.”

It seems to me that Christmas is best understood not as a day of enforced holiday cheer or a day to focus on how we might or might not enjoy our material gifts, but a day of thanks for our lives, a day to recall that we are obligated not to treat the gift of our lives as pointless, and a day to reflect upon how we might bring more light to the lives of others.

 

Monday, December 24, 2012

The intelligent part

By way of reply to Rick's agreeable disagreement with me, my point was that the ideal is for intellectus to rule, indeed to rule and measure.  To clarify and amplify my earlier point, the ideal is for the human ruling mind to be measured and ruled by higher law, both natural and divine, and thus to create human law to give effect to higher law.  Separation of powers and checks and balances are certainly better than some alternatives -- and they can indeed sometimes deliver human law that gives effect to higher law, but they are not the ideal.  

Not only that.  I don't doubt that some people embrace separation of powers and checks and balances out of "humility and caution," but others, including many of the Framers, embraced them exactly because they denied the ideal on pseudo-philosopohical and pseudo-theological grounds.  They denied, more specifically, that we can know what man is, and not knowing what man is, we do not know that he enjoys an intellectus that can know the higher law that is a participation in the Eternal Law. What such nescient and denying Framers were left with was (to borrow a phrase from Russ Hittinger) "a thermodynamics of power."  And what that has delivered, more than two hundred years later, is Lawrence, a legally enforceable right not to be ruled and measured, but to invent yourself (limited only by the harm principle). That is not intellectus at work, it's pure voluntas.  

I don't suggest that Lawrence was inevitable, only that, though neo-cons don't like to admit as much, it reflects core elements of many of the Framers' Lockean commitments; for them, the question of man's summum bonum is (as Pangle says of it for Locke) "perfectly idle."  To repeat, checks and balances may in certain circumstances be a way to give effect to higher law, but it is not the ideal.  And its essential defect is this: with checks and balances as the fundamental organizing principle, what we have is a state that in a self-conscious and principled way cannot think, it can only bicker.  Yes, individual members of our government can think, at least in principle; but the fruits of their intellectus then get thrown into that thermodynamics of power.  

A Christian king can think, if only we could find one.  We cannot find one because we have a Constitution that rejects the ideal.  

I have addressed some of these issues here, and I address others among them in a forthcoming paper 'The Pursuit of Happiness' Comes Home to Roost: Same-Sex Union, the Summum Bonum, and Equality.