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.

Tuesday, October 24, 2006

Law & the Humanities

Sandy Levinson and Jack Balkin have posted their new paper, Law and the Humanities: An Uneasy Relationship.  From the abstract:

In 1930 legal professionals like Judge Learned Hand assumed that law was either part of the humanities or deeply connected to them. By the early twenty-first century, this view no longer seems accurate, despite the fact that legal scholarship has become increasingly interdisciplinary. Instead law has moved closer to the social sciences. This essay discusses why this is so, and why the humanities exist in an uneasy relationship with law and contemporary legal scholarship.

And from the paper itself:

To the extent that law school is like a school of divinity, law professors believe in the enterprise of law (including those suspensions of disbelief necessary to separate what is deemed “law” from what is deemed “politics”). Many will practice law or give legal advice to others, and all will seek to inculcate in their students the techniques of arguing to legal decisionmakers who are also internal to that enterprise. However, to the extent that law schools are “departments of law,” law professors need not practice law and may not particularly care whether one case or another is rightly decided from an internal perspective. Rather, their goal is to study law as a literary, cultural, economic, or social phenomenon. If, on occasion, they make arguments about what the law should be, reasoning will be largely from the standpoint of what would be good policy as distinct from what the law commands or requires.

Rob

Meet the New Boss (Same as the Old Boss?)

Have Democrats abandoned their efforts to rediscover the moral dimension of the abortion issue?  Consider this new interview with their leader, Nancy Pelosi:

Q:  I think the issues that brought you into politics were the environment and also choice. [You had] five children in six years, a Catholic background. . . Was embracing choice an issue with your family?

Pelosi: To me it isn’t even a question. God has given us a free will. We’re all responsible for our actions. If you don’t want an abortion, you don’t believe in it, [then] don’t have one. But don’t tell somebody else what they can do in terms of honoring their responsibilities. My family is very pro-life. They’re not fanatics and they’re not activists. I think they’d like it if I were not so vocally pro-choice.

I'm not even sure where to begin.  In the world according to Pelosi, whether abortion should be legal "is not even a question."  We should not outlaw abortion because God gave us free will.  (Under that logic, could anything be prohibited by law?)  We can effectively register our moral opposition to abortion by not having one.  And honoring responsibilities is an inescapably self-defined endeavor. 

If the Democratic leadership is not going to engage in meaningful soul-searching on the abortion issue, can we at least expect some competent media training?

Rob

Monday, October 23, 2006

God and Man at Harvard

In today's Washington Post, Notre Dame's president and provost applaud a Harvard committee's proposal that every student be required to take a course exploring the subject of "faith and reason."  They explain:

It's time for universities to explore the reasoning that is possible within a tradition of faith, and to help their students appreciate this possibility and the rich resources in great religious traditions. Such efforts would enhance the ability of those with faith to engage in thoughtful, reasoned and self-critical spiritual reflection.

I share their enthusiasm for any prospect of greater openness toward religious traditions at elite universities.  But it is not an unrestrained enthusiasm.  When I was entering the legal academy, I shared with one of my Harvard profs my interest in focusing on law and religion.  He responded, with the tone of someone who had just seen a unicorn, "You know, I've found that quite a few of my students are actually religious!"  If Harvard can find professors who can lead students to an understanding of the faith-reason dynamics from within a tradition, great.  But as a young, believing Christian (or Muslim or Jew), I'm not sure how I'd feel about having my tradition poked and prodded like an animal in the zoo.  Campuses can be brutally hostile to religious believers.  Would this reduce the hostility or just give it official academic cover?

Rob

Thursday, October 19, 2006

Freedom, Authority, Community

Earlier this week Greg Kalscheur quoted from John Courtney Murray's article, Freedom, Authority, Community.  If you'd like to read the whole article, you can do so here.

Rob

Wednesday, October 18, 2006

Bus Drivers & Conscience

I am expecting a significant backlash against claims of conscience, thanks in large part to cases like this one:

A city bus driver who complained about a gay-themed ad got official permission not to drive any bus that carries that ad, according to an internal memo confirmed Tuesday by Metro Transit.

It is important, though, to distinguish between voluntary accommodations of employees' conscience-driven requests and state-mandated accommodations.  The latter are much more problematic if we value a vibrant marketplace of moral norms.

Rob

Religious devotion as "a mark of separation"

I would guess that most of us on MoJ oppose the French ban on head scarves in schools, but what about Tony Blair's criticism of full-face veils?  Is the bully pulpit an acceptable mechanism for expressing (and likely promoting) public disapproval of minority religious practices?

Rob

Tuesday, October 17, 2006

Culture Watch: Parental Priorities

In the midst of a culture that seems headed in the wrong direction by many measures, it is important to recognize signs of authentic human flourishing, such as the continued investment of time by parents in building relationships with their kids.

Rob

A population problem?

As the US population surpasses 300,000,000, Richard Posner argues that overpopulation, despite the hysteria of doomsday predictions in the past, is a legitimate cause for concern.  Gary Becker disagrees.  One particularly provocative remark from the comments (not from either Posner or Becker) struck me:

The operative word is sustainability. If there are three-to-five billion people in the world who are dependent on aid from developed nations to live, and that past aid has not proven the ability to make these societies self-sufficient, is it ethical to continue the aid and watch the populations balloon, knowing that the aid is finite?

Rob

Monday, October 16, 2006

Kalscheur on Murray on Freedom

Earlier in our conversation on conscience and authority, Fr. Araujo quoted John Courtney Murray's observation that “[T]he Declaration [on Religious Freedom] nowhere lends its authority to the theory for which the phrase frequently stands, namely, that I have a right to do what my conscience tells me to do, simply because my conscience tells me to do it. This is a perilous theory. Its particular peril is subjectivism—the notion that, in the end, it is my conscience, and not the objective truth, which determines what is right or wrong, true or false.”

Boston College law prof and former MoJ-er Greg Kalscheur, S.J., offers the following supplement to this quotation:

Thanks to Bob Araujo for calling attention to the the discussion of conscience and freedom found in John Courtney Murray's commentary on the Declaration on Religious Freedom.  MOJ readers might also be interested in Murray's post-conciliar thoughts regarding freedom in the Church.  In a 1966 article entitled "Freedom, Authority, Community," Murray argued that "the classical conception of the vertical relationship of authority and freedom . . . needs to assume a more Christian and therefore more human form by standing forth in the living flesh and blood that is the Christian community.  More abstractly, the vertical relationship of command-obedience needs to be complemented by the horizontal relationship of dialogue between authority and the free Christian community.  The two relationships do not cancel, but reciprocally support, each other.  This more adequate understanding of the ecclesial relationship does not indeed dissolve the inevitable tension between freedom and authority.  But by situating this perennial polarity within the living context of community, it can serve to make the tension healthy and creative, releasing energies radiant from both poles for their one common task, which is to build the beloved community."  Murray's article can be found at pp. 209-21 of "Bridging the Sacred and the Secular: Selected Writings of John Courtney Murray, S.J. (edited by J. Leon Hooper, S.J., Georgetown Univ. Press, 1994).  It's a shame that Murray's death prevented him from articulating the "full theology of Christian freedom in its relation to the doctrinal and disciplinary authority of the Church" to which he alluded in fn. 58 of his commentary (previously cited by Bob).

Rob

Taxis as a Signal of What's to Come?

The airport taxi stand may be the next venue in the conscience wars, though this battle appears one-sided.  A Minneapolis airport official noted that the proposal to allow drivers to self-identify as not willing to transport passengers with alcohol triggered 500 comments from the public, not a single one of them supportive of the proposal.  Apparently in other cities, Muslim taxi drivers have not only refused to transport passengers with alcohol, but also passengers with seeing-eye dogs.  Daniel Pipes argues that accommodations in this area amount to the integration of Islamic law with state law.

I wonder: will the growing presence and visibility of Muslims make the public less amenable to religious accommodations across the board?

Rob