This week marks the 15th anniversary of the Mirror of Justice blog. Tempus fugit, and all that. I dug up my first substantive post, and I suppose I should not have been surprised that it was, like a lot of the things I've put up on this blog, about Christian "moral anthropology" and its implications for law and the legal enterprise:
One of our shared goals for this blog is to -- in Mark's words -- "discover[] how our Catholic perspective can inform our understanding of the law." One line of inquiry that, in my view, is particularly promising -- and one that I know several of my colleagues have written and thought about -- involves working through the implications for legal questions of a Catholic "moral anthropology." By "moral anthropology," I mean an account of what it is about the human person that does the work in moral arguments about what we ought or ought not to do and about how we ought or ought not to be treated; I mean, in Pope John Paul II's words, the “moral truth about the human person."
The Psalmist asked, "Lord, what is man . . . that thou makest account of him?” (Ps. 143:3). This is not only a prayer, but a starting point for jurisprudential reflection. All moral problems are anthropological problems, because moral arguments are built, for the most part, on anthropological presuppositions. That is, as Professor Elshtain has put it, our attempts at moral judgment tend to reflect our “foundational assumptions about what it means to be human." Jean Bethke Elshtain, The Dignity of the Human Person and the Idea of Human Rights: Four Inquiries, 14 JOURNAL OF LAW AND RELIGION 53, 53 (1999-2000).
We've covered a lot of ground these past 15 years - and not just, although it sometimes might have seemed like it, four presidential elections. We've had about 15,300 posts and (I estimate) about 5 million page-views. Bloggers have come and gone -- although more than a few of us have been on board the whole time -- and engagement and activity have waxed and waned with current events, the life of the Church, and the academic calendar. We've talked about current events and politics, sure, but at our best the blog was not another "blog about current events and politics (by people who happen to be Catholic law professors)." We've argued some, and thrown some elbows, but I like to hope that, all things considered, we've shed some light and not just "thrown some shade."
I continue to think it is the case -- it just has to be -- that the Christian proposal and story have something to say about law -- again, about the purpose and nature of law and the legal enterprise, not just the substantive content of particular enactments. There needs to be, I think -- and we should want there to be -- a meaningfully, interestingly "Catholic legal theory." Such a theory is -- or, at least, should be -- of interest and value to Catholics and non-Catholics alike. That we are Catholic should make a difference for how we teach, practice, study, understand, and craft law.
The flow (as well as the speed and, perhaps, the snarkiness) of the public conversation has changed over the last 15 years. Twitter wasn't around. Facebook, believe it or not, was launched on the same day as Mirror of Justice. (Arguably, we've done better at our mission than they have at theirs!) Legal practice, legal scholarship, and legal education have changed significantly, reflecting the ongoing Digitization of Everything. A lot that used to be said, in paragraphs, on blogs is now said, with a few words (or emojis or gifs) on Twitter.
It's not clear to me what the future holds for this blog-venture, or for blogging generally. I'd welcome others' thoughts! In the meantime, I want to say "thank you" to the many thousands of people who have checked in with MOJ over the years and to my co-blogging colleagues and friends. Let's all pray for the Church, for our vocation, and for each other.
Monday, January 28, 2019
For this Feast of St. Thomas Aquinas, I am reposting a bit from a homily delivered for this occasion at Blackfriars (Oxford) by my late friend Fr. Herbert McCabe, O.P.:
St. Thomas’s life was spent in asking questions (nearly all his major works are divided up explicitly into questions), and this meant seeking to answer them. A man is a saint, though, not by what he does and achieves, but by his acceptance of failure. A saint is one who conforms to Christ, and what Jesus is about was not shown in his successes, his cures and miracles and brilliant parables and preaching, but in his failure, his defeat on the cross when he died deserted by his followers with all his life’s work in ruins.
Now whatever his many other virtues, the central sanctity of St. Thomas was a sanctity of mind, and it is shown not in the many questions he marvelously, excitingly answered, but in the one where he failed, the question he did not and could not answer and refused to pretend to answer. As Jesus saw that to refuse the defeat of the cross would be to betray his whole mission, all that he was sent for, so Thomas knew that to refuse to accept defeat about this one question would be to betray all that he had to do, his mission. And this question was the very one he started with, the one he asked as a child: What is God?
....
“What is God?” It was the intellectual sanctity of Thomas that he here accepted defeat. Unlike so many theologians before and since, he could in no way answer this most important of questions. Right through his life he accepted this crucifixion of the mind; his whole life was devoted to talking about God, to theology, and yet he was intensely conscious that he knew nothing, that God is the ultimate mystery, that we are peering into the dark. In Christ, he says, we are joined to God as to the utterly unknown. The most we can do is peer in the right direction; and all theology is about doing that. But we can never answer our basic question with any use of language, by any thought. We will understand what is God only when we have been taken even beyond language and thinking, and God brings us to share in his own self-understanding. Thomas was not making a new discovery when, at the end of his life, he said that all his writings seemed like straw. He had lived with this knowledge all the time he was writing.
This, then, is the heritage Thomas has left to his [Dominican] brethren and to the Church: first, that it is our job to ask questions, to immerse ourselves so far as we can in all the human possibilities of both truth and error; then we must be passionately concerned to get the answers right, our theology must be as true as it can be; and finally we must realize that theology is not God, as faith is not God, as hope is not God: God is love. We must recognize that the greatest and most perceptive theology is straw before the unfathomable mystery of God’s love for us which will finally gather us completely by the Holy Spirit into Christ, the Word God speaks of himself to himself. Then, only then, is our first question answered.
God Matters (1987), pp. 236-37.
Here's a short video from Fr./Bishop Robert Barron on the Angelic Doctor, and if you haven't read Chesterton's Dumb Ox or Joseph Pieper's Guide, why not fix that?
Tuesday, January 22, 2019
As I suggested a few days ago -- it seems like forever, since it was before this weekend's Twitter-mob-unpleasantness regarding Catholic high school students from Kentucky at the March for Life -- the attacks on the school (and on schools like it) where Mrs. Pence teaches should be seen as part of a well-funded and coordinated effort to (a) pre-emptively back-foot judicial nominees and (b) weaken school-choice programs. A news story here in Indiana provides some confirmation for point (b). Some lawmakers (who oppose Indiana's pathbreaking school-choice program) have seized on a recent discrimination lawsuit in which a teacher at a Catholic high school was fired after it became known that she had legally married her longtime partner of the same sex. As the story notes:
The school and Archdiocese have said in public statements that employees must support the teachings of the Catholic Church, including marriage being “between a man and a woman,” and that the expectation is clearly defined in employee contracts.
Some lawmakers have announced their plan to exclude from participation in the school choice program schools that "discriminate" -- whether or not this discrimination takes the form of enforcing contractual provisions that reflect the schools' understanding of their religious mission. Such exclusion would (as it is intended to do) dramatically reduce the number of high-performing schools that participate in the choice program.
This ("Confusion About Discrimination"), from 7 (!) years ago, appears to continue to be relevant. Stay tuned.
Monday, January 21, 2019
In case you missed it in the haze of the New Year celebrations, here's an excellent analysis (by Notre Dame's Carter Snead and Mary O'Callaghan) of the case argued before the Supreme Court on Jan. 2, challenging Indiana's law prohibiting abortions based on a child's "race, color, national origin, ancestry, sex, or diagnosis or potential diagnosis of . . . Down syndrome or any other disability." (See 7th Circuit opinion in Planned Parenthood of Indiana and Kentucky v. Commissioner, Indiana State Department of Health striking down the law here.) Snead and O'Callaghan point out that the 7th Circuit's denial of the petition for an en banc rehearing of the case includes a strong dissent by Judge Easterbrook, who argues: "Using abortion to promote eugenic goals is morally and prudentially debatable on grounds different from those that underlay the statutes Casey considered."
Snead and O'Callaghan argue:
Judge Easterbrook is correct as a legal matter about the meaning of
Casey. More importantly, the ramifications of leaving this narrow question unsettled far outstrip those associated with interpretation of the Medicaid Act. Regardless of our nation’s polarized views on the policy and politics of abortion, it is clear that our Constitution does not include a right to abort children merely because of disfavored characteristics. The Seventh Circuit’s erroneous decision gets this basic legal question wrong, and leaves the most vulnerable populations among us, born and unborn, susceptible to the view that we have a “
moral duty” to eradicate them, that we are “
better off” without them, and that their value can be calculated in
dollars and cents.
ra
Thursday, January 17, 2019
Rick's post about the sexual morality rules at the school where Karen Pence teaches brought to mind this TAC piece by Tim Carney in which Nicole Stelle Garnett's co-authored book with Margaret Brinig plays an important role. Read all three together. Here's an excerpt from Carney:
Sure enough, low trust helped to predict Trump support in the early primaries. The core group of Trump voters in the GOP primary ... were by far the mostly likely to say people mostly just look out for themselves.
In elite family-filled suburbs where most people have college degrees, trust actually tends to be high, regardless of stereotypes about gated driveways. Where do we find trusting middle-class or working-class communities? Where most people go to church.
And when the churches start emptying, the trust starts shrinking. Researchers Margaret Brinig and Nicole Stelle Garnett looked into what happened where Catholic schools shut down for reasons that didn’t appear to be low attendance. Maybe the pastor was transferred and not replaced. Maybe the building had to be demolished. These neighborhoods, shortly after the school shut down, saw increases in public drinking, drug dealing, and drug use. Graffiti, litter, and abandoned buildings became more prevalent.
The news cycle being what it is, there is a story going around -- and being much remarked upon by Blue-Check-Twitter types -- the theme of which is surprise/shock/horror that the Christian school at which Mrs. Karen Pence has a policy of requiring staff and students to act in accord with a variety of familiar, traditional Christian norms regarding sexuality. (The story to which I linked, like most stories I've seen, says -- incorrectly -- that the school "bans" gay students and employees.)
Two things (at least) are worth noting about this: First, this story (and others like it) are tactical moves in an effort to "condition the environment" for situations when nominees to federal courts are revealed to have been involved with/sent their children to schools that have policies in place that reflect the abovementioned norms. Second, this story (and others like it) are tactical moves in an effort by opponents of school choice to -- having largely lost the battle over the "statist monopoly or parental choice?" debate -- cripple voucher and other school-choice programs by pushing legislatures (and enlisting business boycotts and pressure to push legislatures) to exclude from voucher programs those schools that "discriminate."
