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.

Wednesday, July 20, 2005

Judge Roberts, Roe, and Casey

I am not sure that I agree with Rob that Roberts' full quote regarding Roe forecloses my nuanced reading.  Fully and faithfully applying Casey (unlike Carhart), gives a judge a lot of latitude in determining what is or is not an undue burden on the so-called right to an abortion, as we see in the disagreement between Kennedy on the one hand and Souter and O'Connor on the other over the partial birth abortion question.  Given the fact that laws coming before the circuit court will likely be limitations (not prohibitions) on abortion, raising the issue of whether the limitation or restriction is an undue burden, couldn't a judge who disagreed with Roe fully and faithfully apply Casey and reach the conclusion that very few laws create an undue burden?

Michael S.

Judge Roberts and the Rule of Law

Rob offers three possibilities as to why pro-life groups are lining up behind Roberts when they had reservations about Gonzales given Roberts' confirmation testimony:  "Roe v. Wade is the settled law of the land. ... There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent."  I'd like to tease out the third possibility and ask my fellow bloggers and readers a question.  Rob's third possibility was "Do pro-lifers assume that Roberts was being disingenuous during his confirmation hearing?"  Is it disingenuous to answer in the way Judge Roberts answered given the fact that Roe's issue (defined as can a state or DC outlaw abortion) will not come before the DC Circuit as long as Roe is on the books?  If the issue is what restrictions can be placed on abortion, Roe is not the settled law having been supeceded in large measure by Casey (which allows a judge opposed to the consitutional abortion license leeway) and Carhart.  Could it be the Judge Roberts, in answering the question before the judiciary committee, was following in the footsteps of St. Thomas More?  In "A Man for All Seasons," More's daughter Margaret informs More of the oath, and she is surprised when More responds that he will take it if he is able.  He wanted to look at the words, suggesting that words matter, and if he can escape imprisonment and martyrdom by signing the oath, he will.  What do you think?  Is it possible that Roberts was following More's lawyering footsteps and parsing his words carefully but not disingenuously?

Michael S.

Friday, July 1, 2005

A reader responds to 10C question

I follow the Mirror of Justice blog with interest, and saw your recent post concerning religious and governmental institutions, and their spheres of operation. May I suggest the following historical and legal sources? I encountered them during my education at Catholic University School of Law, and in personal reading.
  • Kenneth Pennington, Law and Norms Without a State - Here
  • Jacques Maritain - Man and the State
  • Any St. Thomas Aquinas on State Government
May I also suggest that a more precise definition of "allegiance" might be required? For instance, it might be said that it is required that secular government both draw basic norms from natural law; secular government because this forms the baseline for varied people, and religious where the tenants of natural law are confirmed (or at the very least, uncontradicted) by revealed or divine law. Another way of defining allegiance would be to indicate, as did the Centurion did, that the secular government has power over a people only because it is given that power from above. It is worthwhile to note that until the 18th century, custom and natural law (here, meaning transnational norms of the ius commune) had a higher place on the heirarchy than promulgated law.
                      Sincerely,
                             Jonathan Watson
Thank you Jonathan for responding.

10C Questions

When did "secular" come to mean "neutral" or "agnostic" in legal and political theory?  What good sources track this development?  What good sources explore the idea that "secular government" and "religious institutions" operate in separate spheres and possess a degree of autonomy from one another but that both owe their foundation and their allegiance to God and must operate consistently with His commands.  In other words, what good sources (historically and contemporary) argue that "secular" cannot be "agnostic" or "neutral" between theism or atheism as a matter of the foundations of government although it might be neutral in the granting of benefits or the imposition of burdens in particular cases?

Thanks, Michael

Wednesday, May 18, 2005

The Cultural Meeting of East and West

This new association of scholars may be of interest to some of our readers.

You are invited to join a newly founded society

THE CULTURAL MEETING OF EAST AND WEST:

THE OCCIDENT AND ISLAM

INTERNATIONAL ASSOCIATION OF SCHOLARS

MISSION STATEMENT:

“Human Interests, progressively globalizing, call for breaking the barriers and bridging the gaps between the great cultures – especially the Occident and Islam - toward harmonization of existential concerns while preserving cultural identity. 

The aim of our association of scholars from various fields of inquiry is to elaborate the foundation for such a cultural harmonization and to establish new links of communication.  The reaching of common roots in the Human Condition in-the-unity-of-everything-there-is-alive* may set us on the way. 

            All scholars interested in participating in this enterprise are invited to join.” 

Founding Committee:

Acting Director:  Dennis Logue, Professor of Economics, Dean, University of Oklahoma, Norman

Associate Director:  Alexander W. Schimmelpenninck, Publisher, Vice President, Springer-Verlag, The Netherlands

Program Coordinator:  Anna-Teresa Tymieniecka, Professor of Philosophy, President, World Phenomenology Institute

Honorary President:  Seyyed Hossein Nasr, University Professor, George Washington University

Assessors: 

-Grahame Lock, Professor of Political Science at Queens College, Oxford and

Radboud University Nijmegen, The Netherlands

-Salahaddin Khalilov, Professor of Philosophy, Rector, Azerbaijan University

-Hendrik S. Houthakker, Professor Em. of Economics, Harvard University

For all information please contact:

The Executive Committee of CMEW

1 Ivy Pointe Way

Hanover, New Hampshire  03755, USA;  Fax: 802-295-5963

* Cf. The introduction to The Passions of the Soul in the Metamorphosis of Becoming, the first book of the book series: ISLAMIC PHILOSOPHY AND OCCIDENTAL PHENOMENOLOGY IN DIALOGUE, Springer, 2003. 

Steffen Johnson on Filibustering Judicial Nominees

Steffen Johnson makes a compelling case for ending the practice of filibustering judicial nominees in his op-ed, How Filibusters Drain Quality.  Here is a sample:

"Beyond the issue of who controls the presidency or the Senate, filibustering judges is plainly a bad idea. It enables the minority party to blackball any nominee with any record of distinction, since any nominee worth his or her salt will have offended one or another interest group in the course of prior government or academic service. This means the courts will be filled with undistinguished, inoffensive "moderates" rather than a diverse group of the most talented judges from both parties."

Monday, May 16, 2005

Russell Shaw on Catholic Journalism

Several recent posts have dealt with the responsibilities of Catholic journalists arising from the resignation of America's editor, Fr. Reese, S.J.  Russell Shaw provided his analysis in Friday's Wall Street Journal:

"[E]diting a religious magazine is, for a priest, analogous to preaching a homily. Catholics rightly expect to hear their church's teaching expounded from the pulpit, and they have the same right to find it upheld in the pages of a Catholic journal edited by clerics and published by a religious order. Parallels are easy to find in other fields. Junior officers do not have the right to lecture the troops on the folly of the strategy and tactics devised by senior officers. Diplomats are not free to criticize their governments' policies before their foreign counterparts. And public officials of the church have no right to undermine its authoritative doctrine and policy in the eyes of the Catholic people.

That doesn't mean marching in lockstep. Differences in approach and emphasis are welcomed, and there is ample room for spirited debate over truly open questions, such as the conditions under which capital punishment is allowable. But the fundamental obligation, for the editors of America and other such publications, is to represent the church faithfully and to convey its teachings loyally."

For the full article, click here.

Wednesday, April 27, 2005

The Conversation Continues: The Church, AIDS, Condoms, and ACC basketball

Mike C. has written a very thoughtful post arguing that the Church should exercise it prudential judgment and not condone (or even turn a blind eye to) condom use as a means to fight AIDS.

He has also challenged Rick and coach K to join the ACC basketballblog.

Tuesday, April 26, 2005

Blogger doesn't understand my logic on the Church, AIDS and Condoms

Mike C. says that he doesn't understand my logic in my post entitled The Church, Condoms, and AIDS.  I posted my response as a comment on his blog.

Call for Papers: "Justice for All" conference at Duquesne Law School

Dear Mirror of Justice bloggers and readers,

I am a professor at Duquesne University School of Law.

Our Law School, together with the Wecht Institute for Law and Forensic Science, will be holding a conference entitled "Justice for All" in November 2005. Given the nature of the Wecht Institute and its emphasis on forensics, a large part of the conference will be devoted to forensic science and its use in relation to the "Justice for All" act.

However, the conference will also include a separate component on religious, moral and ethical reflections on the death penalty and the law.

Since Duquesne is a Catholic university, we are very interested in Catholic scholarship in this area, but we also welcome and encourage contributions from other faith traditions. If you are interested in learning more about the conference or making a presentation about the conference, please feel free to contact me at [email protected] or to telephone me at 412-396-4994.

Alison Sulentic