Many thanks to our newest member, Marc DeGirolami, for his November 3rd contribution “On the Idea of Doctrine.” It may be possible to consider that other disciplines such as economics, political science, literature, the physical sciences, etc. rely on doctrines, i.e., principles, canons, policies, guidelines, etc.
Here I express a different take from Marc when he suggests that these other disciplines may regard doctrine as an impediment. Might it be more the case that within these other disciplines the argument really is a disagreement over which doctrines should be recognized and which should not? Marc offers the distinction between dogma and doctrine, but it is quite permissible from the study of the meaning of language to consider the two synonymous. Nevertheless, I appreciate Marc’s offering the distinction as he explains it. Of course, the same kinds of disagreements to which he refers emerge in theology and law. For example, we need to take stock of doctrinal disagreements today that are prominent within the study of scripture, moral theology, and fundamental—systematic—theology. Within law, there is often the conflict between the positivist and natural law lawyers.
I agree with Marc that theology and law are surely prominent as disciplines having attachment to doctrine.
Being more familiar with law and theology, I strongly concur that doctrinal and dogmatic concepts are vital to both of these fields. One objective of my post today is to offer a suggestion that theology and civil law are historically related. In some ways, we can consider that law did emerge from theology when we consider the Jewish faith and ancient legal precepts. Within Christianity, it is clear that the Church’s teachings and practices provided a foundation for the development of European legal institutions. (The work of John M. Kelly and Harold Berman is illuminating in this regard.) For example, the civil courts of England emerged from the ecclesiastical courts. Within the realm of public international law, the natural law and theological works of Augustine, Aquinas, de Vitoria, and Suárez are important sources upon which the often-called “father” of international law, Hugo Grotius, relied.
I think an important common denominator for acknowledging the nexus today is found in the work of John Courtney Murray, S.J., where he stated in his “The Origins and Authority of the Public Consensus,” that there is a three-fold proposition crucial to legal theory and the natural law: (1) the human person is intelligent; (2) reality is intelligible; and, (3) this reality, as comprehended by intelligence, imposes upon the human will the obligation to formulate norms of action and abstention that accord to reality of intelligible nature.
Marc offers a good point that doctrine (and adherence to it) bespeaks of the relevance and significance of authority and of authoritative pronouncements. Indeed, both theology and law have authorities that determine what is orthodox and what is not. But do not learned societies and professional associations in other disciplines also provide a kind of authority which establishes a framework of commitment or a coordinating function to what is appropriate and what is inappropriate within the context of the discipline for which the authority speaks?
May I suggest that most, if not all, disciplines rely on a past that helps charter their present and future courses. Members of the disciplines, including theology and law, can and do make departures from what has taken place, e.g., the reversal of precedent in the law. But for all disciplines, to borrow an expression, is not the past prologue?
Welcome, again, Marc!
RJA sj
Thursday, November 4, 2010
Micah Watson, at Public Discourse, explains why we "can't help but legislate morality":
“You can’t legislate morality” has become a common turn of phrase. The truth, however, is that every law and regulation that is proposed, passed, and enforced has inherent in it some idea of the good that it seeks to promote or preserve. Indeed, no governing authority can in any way be understood to be morally neutral. Those who think such a chimerical understanding is possible could hardly be more wrong. For, in fact, the opposite is true: You cannot not legislate morality. . . .
To legislate, then, is to legislate morality. One can no more avoid legislating morality than one can speak without syntax. One cannot sever morality from the law. Even partisans of the most spartan libertarian conception of the state would themselves employ state power to enforce their vision of the common good. Given this understanding, the term “morals legislation” is, strictly speaking, redundant. The real question is not whether the political community will legislate morality; the question is which vision of morality will be enforced and by what sort of government.
Michael McConnell has posted on SSRN a new essay, "Schism, Plague, and Late Rites in the French Quarter: The Strange Story Behind the Supreme Court's First Free Exercise Case." Here's the abstract:
On November 9, 1842, Father Bernard Permoli performed an open casket funeral in the church of St. Augustin in the French Quarter of New Orleans, Louisiana. He blessed the body and offered the prayers specified by the doctrines and forms of the Roman Catholic Church. For this performance of the priestly function, he was prosecuted by the City, criminally convicted, and fined $50. The ceremony violated a city ordinance, passed thirteen days before, prohibiting open casket funerals at all “Catholic Churches” of the city, other than a designated mortuary chapel on the outskirts of town. After he was charged for the violation, Permoli filed an answer claiming the protection of the Free Exercise Clause of the First Amendment.
Thus began a case that went all the way to the United States Supreme Court. Under the name of Permoli v. Municipality No. 1 of the City of New Orleans, it was the first Supreme Court case in which a party invoked the protections of the Free Exercise Clause of the First Amendment. Unfortunately for Father Permoli, the Court rejected his argument, holding, in a unanimous opinion by Justice Catron, that the Free Exercise Clause does not apply to the acts of state and local governments. The case is now cited, along with Barron v. Baltimore, solely for the proposition that the Bill of Rights did not apply to the states prior to the Fourteenth Amendment. Except for that, the case has largely been forgotten.
That is a loss. Not only do the arguments in the case tell us a great deal about the state of free exercise jurisprudence in the antebellum period; the case itself is a darned good story.
The essay will appear, I'm proud to say, in a volume of "First Amendment Stories", which Andy Koppelman and I are editing. Coming soon to a bookstore near you!
Prof. Caron has new law-blog rankings up at TaxProf Blog. MOJ continues to do well, and to grow. Thank you! (And, tell your friends!).
In the same vein as the "I had an abortion" t-shirts, the latest trend is the #ihadanabortion hashtag on twitter. Both are designed to remove any stigma from the decision to have an abortion. Consider this explanation:
Just as always, not all feminists or pro-choicers agree with the concept. "Not sure what the #ihadanabortion hashtag is meant to accomplish," one woman tweeted. "Pro-choice is one thing but this just seems needlessly provocative." In response, someone wrote: "Why is saying #ihadanabortion 'provocative?' I had my wisdom teeth out. Is that needlessly provocative?
Apart from (but not entirely unrelated to) the debate over abortion's legality and constitutionally protected status, there is the question of stigma. If we ever arrive at the point where abortion is viewed as the moral equivalent of the removal of one's wisdom teeth, the pro-life movement will have failed in much starker terms than those presented by the Roe v. Wade regime.
Usha Rodrigues has posted a new paper, "Entity and Identity." Judging by the abstract, it should be of interest to those of us who care about associational life:
The function, indeed the very existence, of nonprofit corporations is under-theorized. Recent literature suggests that only preferential tax treatment adequately explains the persistence of the nonprofit form. This answer is incomplete. Drawing on psychology’s social identity theory, this Article posits that the nonprofit form can create a special "warm-glow" identity that cannot be replicated by the for-profit form. For example, a local nonprofit food cooperative is selling more than the free-range eggs or organic strawberries that Whole Foods and other for-profits market so effectively. The co-op offers community participation and an investment in local farms, a distinctive ethos that is incompatible with the profit motive. Ascribing a special meaning to the nonprofit form allows us to view afresh a variety of issues regarding the appropriate legal treatment of nonprofits.
Wednesday, November 3, 2010
A moment of pride and promise at Villanova Law! Kelly Ayotte, Villanova Law Class of '93, has been elected to the U.S. Senate. Ayotte is the first Villanova Law alum to serve as a U.S. Senator. We are very proud of Senator-elect Ayotte. Ayotte's election follows by a few days the great news of the inspiring appointment of John Gotanda as the next Dean of Villanova Law.
