Mirror of Justice

As Mirror of Justice contributors and readers may recall, I indicated prior to the Easter Triduum that I would be spending time during the quiet of Holy Saturday thinking about recent posts that reveal the division amongst our approaches to issues that most of us believe we contribute to from a Catholic perspective.

It is clear to me that most of our MOJ contributors do not shy away from addressing the controversial issues of the day that frequently divide our country and our world. Some may think that because we have dedicated our efforts in this project of developing perspectives on Catholic Legal Theory that we share common beliefs that are essential first principles pertaining to Catholic teaching. In fact, we do not always express unanimity but frequently disclose the same ruptures that exist within our society on the hot button issues such as abortion, marriage, etc. Surely by addressing the moral aspects of these and other sensitive issues we seem to participate in the national and international debate that separates rather than unites.

In part, our division appears to be attributable to whether we accept the truth or not about particular claims advanced by the Church—or as some of our friends here at MOJ sometimes argue, the institutional Church. For me, there is one Church that is Catholic and apostolic. It has local elements or churches, but there is one Church of which these local ones are constitutive elements. The matter of truth is on my mind as I reread the Passion according to St. John proclaimed on Good Friday and focus on the encounter between Jesus and Pilate and the skepticism of the latter who asks, “What is truth?” For me, the truth is what Jesus told Pilate and others and what has been continued in the Church for almost two thousand years. I believe that there are truths about us, our human nature, our human essence. As you might gather, I am not a fan of William of Ockham. However, I have come to see that for others here at MOJ, different views of the relation between essence and existence are probably held and are certainly expounded. This is an element of the evidence that, even though we contribute in a friendly and often spirited way, we do not proceed with the same vocabulary and grammar in mind, i.e., from the same first principles.

Recently, I was taken to task for the grammar and vocabulary I used in addressing elements of the SSM debate and the recent Varnum decision issued by the Iowa Supreme Court. I have gone back and read several times the critiques offered about my views and the positions I expressed. I regret that what I said triggered the responses that were forthcoming, but I take this opportunity to reiterate what I presented earlier about that decision. I respectfully disagree with Susan in particular. Apparently, we read the decision differently and reach contrary conclusions about its discussion regarding religion. When I reread the Varnum opinion, I continue to be troubled by the justices’ suggestion that a religious perspective on the marriage question is unconstitutional. I don’t think they see the possibility that the religious perspective can present moral views that are not only theological (and therefore may be problematic in a constitutional sense) but also based on right reason (and therefore not problematic in a constitutional sense). I think it does not occur to the judge using secular reasoning to see the incoherence of prohibiting moral reasoning (that may resonate with a religious community) with which he or she disagrees but of accepting moral reasoning (that may also resonate with another religious community) with which he or she does agree. This very thing happened in Webster (Stevens, J.) as I mentioned earlier, and it happened again in Varnum. In both cases, the judges disagreeing with certain religious views said that the state could not allow religious views to intersect official decision-making. Ironically, they did not see the fault in their own references to other “religious” views that coincided with their conclusions. It is difficult to accept the strict separation argument Justice Stevens and Justice Cady proffer when it is only some religious views (those that don’t fit with their respective conclusions) that are to be excluded while acknowledging that other religious views (those that coincide with their respective conclusions and to which they each referred) coincide with their own. If it is a religious view, then it should not be reflected in their decision, period. To put it bluntly, this is not impartial decision-making that is essential to the judicial process, it is sophistry.

In short, why do I take the positions that I do? I labor to rely on a grammar and vocabulary that has been in the Church for a long time. I gather that some of my other friends and MOJ contributors rely on other vocabularies and grammar more consistent with John Rawls than with John the Evangelist. Nonetheless, I was surprised by the particular rebuke concerning the will-versus-the-intellect distinction I that I presented last week when I discussed Varnum. I assumed that the vocabulary and grammar upon which I relied in presenting my thoughts on Varnum was shared by most, if not all MOJ contributors. However, I have come to realize that I was mistaken in this assumption. So, what to do to make it clear to my friends and colleagues here at MOJ with whom I occasionally disagree? I propose to be more clear about the sources of my vocabulary and grammar in the hope that it is or can be the grammar with which my MOJ fellow contributors also share. Here today, I offer some thoughts from Heinrich Rommen who has had considerable influence on my thinking when it comes to many issues that bring together legal reasoning and Catholic teachings—thoughts which are reflective of the grammar and vocabulary that I consider essential to talking about Catholic Legal Theory:

It has already been shown how in moral philosophy this thesis of the will as the nobler faculty led, and had to lead, through Duns Scotus to Ockham, i.e., to the most one-sided moral positivism, for the doctrine of the will as the nobler faculty is itself the root of nominalism. But nominalism, directed only to the individual, particular thisness, to the existence which is related to the will, arrives in its extreme forms at the denial of the clear and distinct knowability of the essences of things, of the essence which is related to the intellect. The universals are but vocal utterances. Reality, since in its quiddity it is not unmistakably knowable for us, is likewise not the measure of our knowledge. The order of being cannot of itself become a norm of the will; the absolute, omnipotent will of the Supreme Being can alone become that.The entire doctrine of the eternal law and natural moral law is undermined by such a view. Just as the theory of will in municipal and international law cannot admit a law beyond the positive one (or, more precisely stated, beyond the factual will as a persisting act), so Ockham, for instance, could not admit a morality that does not have its first, proximate, and sole norm in omnipotent will, in the absolute power of God. If, then, the idea of God and therewith the supreme personal will are lost to sight or rejected, nothing is left as the source of norms but the concrete will of the earthly lawmaker. Or, as in the case of Spinoza, the deep impulses of nature (here taken as contrasted with mind) are regarded as the natural norm. The biological as well as materialistic ethical systems and theories of law have here their roots.From this it follows that the doctrine of the priority of the intellect over the will in God as well as in man is a prerequisite of the possibility of a natural moral law and hence of the natural law in the narrower sense.

I sincerely look forward to our continuing contributions and discussions about these matters.

A blessed Eastertide to one and all!

RJA sj