Wednesday, November 28, 2012
Sherif Girgis, Ryan Anderson, and I recently had an op ed piece in the Wall Street Journal defendng the idea of marriage as a conjugal union. Here's a link:
The piece is a kind of precis of our new book What is Marriage? Man and Woman: A Defense (Encounter Books). The book develops and strengthens the argument we originally advanced in our article "What is Marriage?" in the 2010 volume of the Harvard Journal of Law and Public Policy. The book has a website here: http://whatismarriagebook.com/.
Following on earlier posts about the Duke Law and Contemporary Problems symposium on Stanley Hauerwas and law, the issue also includes a colloquy between Stanley and his former student Jeff Powell, then at DOJ's Office of Legal Counsel and now back on the Duke faculty. Among the many interesting observations, here are two bits. First, Stanley on the relation between law and moral practices, with some important implications, I think, for how law is taught in a Catholic university:
Now I thought at the time that lawyers resisted the charge that the law reflects politics or morality as a way to save what they were learning as skills of the law that gave them a sense of identity in a world in which moral identity was very ambiguous. They believed, “The law has an integrity that the rest of my life does not, and I’ll be damned to let it be ruined by recognizing that it reflects a community’s politics or morality.” So the law becomes an end in itself. That will kill you.
So fundamentally, if you are to be able to live out the life of the law you are going to need a more determinative community than the law, and that I worry is very hard to find. One of the temptations will always be to think that you can replace that community with theory. Theory is always a useful, imaginative exercise, but it’s not going to be sufficient unless you have a much more determinative set of practices that surrounds the law.
Second, in the Q&A, Charlton Copeland (Miami) asked the following question about liberalism (in the political theoretical, not politically partisan, sense), with Stanley's response below:
CHARLTON COPELAND: How might we avoid the shame that can result from being dependent upon the liberal state? If one were to read at least some of your work, there might be the sense of sadness for those whose lives or safety depend upon the liberal state in some important respects. How do we struggle though the sadness and not somehow let it become shame for those who depend upon the liberal state?
HAUERWAS: My problem has never been liberals. My problem has been Christians who are liberals and who don’t know it. I expect liberals to be liberals, and I’m deeply grateful for many of the kinds of developments that Stephen Macedo names. It’s good that we live in a social order where at least you have some legal recourse if you are arbitrarily arrested. The world as I found it is pretty damn good. But I need to name, as part of my service to it, what I take to be some of the profound challenges to our being able to live well together as human beings within the liberal rhetoric of our time.
Take abortion, for example. The real question is whether we as a people are confident enough in our lives to want to pass life on to future generations. Do we have such goods that compel our own lives that we think it sufficient to bring new life into the world, to say we want you to enjoy what we enjoyed? When I used to teach at Notre Dame, they had a course on marriage and family. Parents wanted the course in the curriculum to ensure that their kids would not do what the parents were afraid their kids were going to do when they went to college, but what they had already done in high school. I usually started the course with a question: What reason would you give for yourself or someone else to have a child? Students would answer that children are the manifestation of our love. Or that children are a hedge against loneliness. Or that we have children to please the grandparents. It’s amazing how inarticulate we as people are about what it means to have children, which I think can be a very basic moral presumption for any social order. And I think Christians can have something to say about that, and that would be of service within a liberal social order. If you think you are having children for your own happiness, good luck.
My friend, neighbor, and colleague, Patrick Deneen, recently wrote a thoughtful essay in First Things (subscription required) called "Unsustainable Liberalism," the thesis of which is that "liberalism's contradictions are unsustainable and we must see man and nature anew." Another friend, neighbor, and colleage -- Phillip Munoz -- has an also-thoughtful response, here, at Public Discourse: "Why Social Conservatives Should Be Patriotic Americans: A Critique of Patrick Deneen." Munoz concludes:
Rather than trying to create something new, I would direct us to the more modest task of recovering something we have unfortunately lost. America’s true liberal heritage is not to be found in Hobbes or Rawls, but rather in the natural rights philosophy of our founding fathers and in the natural rights statesmanship of Abraham Lincoln.
In our natural rights tradition, we can find a commitment to truth and a profound respect for nature and the natural order created by God. I also believe it offers our best hope for a more sustainable liberalism.
Check out both . . .
As Michael previously mentioned, on Tuesday the Columbus School of Law at the Catholic University of America, made an important announcement:
After an 18-month-long national search, The Catholic University of America has named Daniel F. Attridge of the Washington, D.C., office of Kirkland & Ellis LLP as dean of the Columbus School of Law. The managing partner of Kirkland's Washington, D.C., office since 1998 and a partner in the firm since 1985…
This is a wonderful moment for the Columbus School of Law, founded in 1897. The official announcement is here and National Law Journal article is here.
As we all know, this is a critical point in time for legal education. Such an appointment, in my view, is an excellent one for Catholic University for the objective reasons mentioned both in the announcement and the news coverage. It is also exciting for the more intangible reasons important to a law school that is interested both in academic excellence, as well as mission.
At various times here at MOJ we have discussed, and no doubt will continue to do so, the meaning, purpose, and value of an authentically Catholic law school. Within that context, there is some agreement that a law school in the Catholic intellectual tradition is one which reflects the highest academic and professional standards, as well as a commitment to something more profound. In the words of Judge Noonan in his 1992 Essay, A Catholic Law School, it "encourage[es] such a fusion of the responsibilities of the lawyer and the love of Christ."
In my view, the selection of Mr. Attridge reflects that wonderful combination that separates the Catholic law school from the secular institution. Not only does he have a record of significant distinction in the profession, as objectively indicated in the building of Kirkland into a firm with a global reputation for excellence. He also brings a commitment to certain "core values" of education and faith. Thus, he demonstrates that such achievements – such "responsibilities of the lawyer," need not be separate from the commitment to something greater. For, again in the words of Judge Noonan, "a Catholic law school . . . must indeed be aware of its roots in faith if it is to be aware of its own vocation."
Tuesday, November 27, 2012
I was attracted to Tocqueville’s understanding ofAmerican lawyers because I thought he made clear why, if you were interested in "ethics," the law was and is a crucial resource for locating matters of significance in American society. The conflicts and arguments surrounding the law, therefore, can be illuminating for understanding how the moral convictions of Americans work. Thus Tocqueville’s observation, "There is hardly a political question in the United States which does not sooner or later turn into a judicial one." But it turns out that most political questions are moral questions in disguise. So I was attracted to the law because I thought the law exemplified how moral convictions entail a politics and how politics and the law manifest our most significant moral commitments.
Put as directly as I can, I was and continue to be fascinated by the law because it is just so damned interesting. One of the reasons the law is interesting is that its processes manifest a rationality that does not need a ground. For, if Tocqueville is right, American law is a law without a bottom. That is, it is a law without a bottom unless you think the Supreme Court is a bottom. So American law remains one of the paradigmatic places you can go to see the moral convictions of the American people displayed. Those convictions may not be my convictions, but the convictions that make me a Christian mean I cannot afford to ignore my neighbor.
I've long been fascinated by Rowan Williams, though his writing can be tough to penetrate. This new book appears to be a helpful guide to his "Lenten theology." As one reviewer notes:
[P]erhaps there are seasons in the church's earthly pilgrimage in which a theology of Lent requires special emphasis. Maybe the low notes of penitence and apophaticism need, at times, to be sounded more than do the joyous strains of Christmas or Pentecost. If our time is indeed, as Charles Taylor has dubbed it, "a secular age" in which the shiny promises of prosperity and certainty have become impossible for many would-be believers to accept, then perhaps we need a Lenten theology as an antidote. Perhaps we need to be reminded of the difficulty, and not just the clarity, of the gospel we preach. If so, there's no better Lenten theology than that of Rowan Williams.
Steve Smith has posted an enjoyable and thoughtful short essay (written with his distinctive grace and humor) about the implications of the developments in neuroscience for our legal understanding of the person (including our understanding of various issues in criminal law). With an interesting qualification, his general sense is, there are no major destabilizing implications -- hence his genial complacency. Here's a fragment involving that qualification, on the issue of whether neuroscience will affect our views about the intrinsic worth of the human person (footnotes omitted):
A better understanding of how the brain works and how it causes or correlates with mental states does not in itself tell us anything about whether persons have intrinsic worth, so far as I can see. Neither does an account of how persons may have evolved from other organisms. But it is possible that by giving more cachet to a naturalistic approach to understanding, advances in neuroscience and evolutionary psychology might contribute to the ascendancy of a worldview– or as I sometimes put it, an “ontological inventory" -- in which things like intrinsic value don’t register. In this way, it is conceivable that neuroscience might for some people undermine belief in intrinsic value in the same way that for some people science undermines belief in God– not by scientifically demonstrating that God (or intrinsic value) aren’t real, but by promoting and reenforcing a vocabulary and conceptual framework, or ontological inventory, in which these things just don’t figure.
Some people will find this loss of faith in soul and intrinsic value invigorating; they will feel that their new-found skepticism is an indication of their tough-mindedness, or of their keeping up with current knowledge. Fine. The sad thing, I think, is when someone announces this loss of faith regretfully, because the sacrifice is, so far as I can see, pretty much gratuitous.
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