Thursday, June 30, 2016
Most readers of MoJ are aware, I trust, that law schools have encountered a bit of rough sledding over the past several years. The New York Times recently published (yet another) feature on law school troubles, this time focusing on Valparaiso. The story included -- along with some questionable assertions -- profiles of struggling law grads that warrant serious reflection.
One other aspect of the story that cannot go unexplored is the headline -- "An expensive law degree and no place to use it." The suggestion that law degrees are "expensive" relative to the earning power they bring is a different story that I'll leave for the economists to sort out, though I agree that law schools need to be -- and are being -- more cognizant of cost than they were in the past. I'm more interested in the charge that many law grads have "no place to use" their degrees.
If, as the article asserts, the market for new lawyers is "saturated" -- a proposition that is highly contingent on geography, even when it comes to traditional JD jobs -- we need to think about the assumptions we make as to who can best utilize a legal education and how. What value do we bring, and to whom? For Catholic law schools, this is not just a matter of responding to market pressure, but of living out our mission. As John Paul II reminded Catholic intellectuals (and as Cardinal George later reminded Catholic university professors):
You too are solidly involved in a prophetical task of forming sensitive consciences capable of saying no to death, to hatred, to violence, to terror, to error, to evil, to degradation, but saying yes to the good, to the beautiful, to truth, to justice, to responsibility, to life, to peace, to love. You must take on your responsibility consciously. Your contribution in this field is a conspicuous and precious one. The young who have contact with you . . . let all these be aided by you to enter sagely and rationally into a vision of life in human society which promotes the common good of all.
Or as John Paul II explained in Ex Corde Ecclesiae, the Catholic university “assists each of its members in achieving wholeness as human persons.”
This warrants a much larger conversation, but for purposes of a blog post, I'll emphasize three implications:
1) The mission of Catholic legal education, and the strength of the particular law school communities that can be formed by that mission, position Catholic law schools to prepare students to thrive in the relationships that will distinguish the lawyers who achieve professional success in an increasingly commodified and routinized market for legal services.
2) Catholic law schools that integrate the analytical rigor of common law training with insights from Catholic social teaching can equip students -- especially international students -- for positions of influence that require more nuance than a categorical embrace of unfettered capitalism or socialism; and
3) Access to justice should be a rallying cry that finds fertile ground among the stakeholders of Catholic law schools, drawing support for scholarships and post-graduate fellowships aimed at addressing the need for lawyers among the poor and middle class, especially in small towns and rural areas across the country. To the extent that the market for lawyers has been "saturated" in some areas of the country, that's because the business model does not function in a way that permits legal needs to be met. Catholic law schools should be part of the solution.
In an increasingly regulated world that cries out for creative problem solving, there should always be a "place to use" a law degree in a way that provides a livelihood and advances the common good, and Catholic law schools should be leading the way forward.
In his opinion dissenting from denial of cert in Storman's, Justice Alito wrote that "If this is a sign of how religious liberty claims will be treated in the years ahead, those who value religious freedom have cause for great concern." To which Michael Sean Winters responds, "Bosh." I'm afraid, though, that Alito is right, and Winters gets it wrong, on this one. Winters frames the issue in terms of his underlying view that it is a mistake to see for-profit corporations as having religious freedom. He writes, "The claim [in Storman's] rests not only upon a certain valuation of religious freedom but as well on a certain understanding of a corporation."
I understand Winters's argument that we should "draw a clear line between the religious rights of our religious organizations and the rights of secular corporations." I've made a similar argument myself. Here, though, nothing about Storman's and the claim presented in that case actually turn on this point. The issues on which review was sought have to do with (a) whether the government should be able to target religiously motivated conduct for regulation and, relatedly, (b) whether the government's willingness to accommodate or exempt some claimants from generally applicable laws creates a presumptive obligation to extend similar solicitude to religious claimants. As it happens, that issue was presented in this case by a corporate entity -- a drugstore and grocery -- but that fact was not relevant to the arguments made by the claimants, and the dissenting justices, for review. (We don't know if it was relevant to the decision by the other justices not to vote for cert.)
That the Court allowed to stand the lower-court ruling could mean -- we'll see how other courts read it -- that that ruling stands as authority for the proposition that governments may treat religious claims for exemptions worse than others or may selectively single out religiously motivated conduct for regulation. This is why, given the current political controversies, the case is -- as Justice Alito said -- "cause for great concern" and, indeed, "ominous."
Again -- there's room for reasonable arguments about whether our religious-exemptions regime should treat non-profit and religious corporations differently than for-profit ones. (Currently, given Hobby Lobby, that distinction should not matter very much for RFRA purposes, though.) I'm nervous about any suggestion that religious-freedom, or "religion", is something to be excluded from the business, commercial, and economic worlds but, again, there's room for discussion on this. That said, Justice Alito's concerns about the implications of Storman's are well founded, not "bosh."
Here's Dan, at the "Lawfare" blog, with "Culture War or Common Heritage? On Recent Critics of Global Religious Freedom". Dan is reviewing two new books that have been getting a fair bit of notice, Elizabeth Shakman Hurd's Beyond Religious Freedom: The New Global Politics of Religion (Princeton, 2015) and Saba Mahmood's Religious Difference in a Secular Age: A Minority Report (Princeton, 2016). Here's a bit:
Hurd’s and Mahmood’s commitments and criticisms ring strikingly similar. Both books bear the footprints of the late French philosopher Michel Foucault on every page. Both authors also draw heavily upon the analysis of the contemporary anthropologist, Talal Asad, whom Foucault influenced in turn. From these fonts flow four tenets shared by Hurd and Mahmood.
The first is a characteristically postmodern rejection of universals. Both authors actively doubt what the human rights conventions assert: that religious freedom is a universal right, belonging to every human being and every religious community. There cannot be religious freedom because there is no such thing as religion. . . .
The second tenet, also exuding Foucault, is that the promotion of religious freedom (or religious minority rights) is a projection of power. . . .
Their third shared tenet is that modern religious freedom and the notion of religion on which it is based are products of developments in Western history, especially the Protestant Reformation and the Enlightenment. . . .
Fourth and finally, each makes the normative judgment that the West ought not to export religious freedom (or religious minority rights). . . .
If Hurd and Mahmood are right, then the rise of religion policy in the West – the promotion of religious freedom, religious minority rights, and religious forces that favor democracy, tolerance, peace, reconciliation, humanitarian aid, women’s rights and the like are misbegotten and ought to be abandoned. Are they right?
Well . . . read Dan's essay and find out!
A return trip to Patrick's first two posts on his new paper (McLaw & McRestroom), as prompted by his third (McFixity), reminds me of something people who deal with me regularly know: Sometimes you have to say something to me three times before it begins to sink in! To the extent we have had a failure of communication, I acknowledge my McStake.
This reminds me of a challenge we all need to be reminded of in the life of the law, which is the challenge of listening for law. Were it not for Patrick (and Steve Smith), I would have given up long ago on trying to understand Joseph Vining, whom Steve (in a passage quoted by Patrick) has described as "one of the most provocative but elusive legal thinkers of our time." I haven't yet ... haven't fully understood Vining, that is, but also haven't yet given up on trying, perhaps because I partially understand him.
Other readers of MOJ will surely have more success, more quickly, than I have. So here's an extended quotation from Vining (as quoted by Patrick in his Locating Authority paper):
There is always an enormous difficulty, an enormous struggle in law particularly, to recall and keep in mind that language is evidence of meaning, not meaning itself. The struggle comes from the thirst to know, for closure, that can always be slaked for the moment by illusion, but at a cost and often a terrible cost. The difficulty, the struggle, is the difficulty of listening, and it is a person one listens to--only a person, whom one approaches in good faith, which includes faith that there is a person to be heard. Axiomatic elimination of the person, at least from conscious presence in the reasoning mind, is a way of cutting short the struggle, stopping the work of listening. It is precisely the elimination of the person that permits one to think of rules not as linguistic evidence but as having a real existence of their own. . . . So there is always the temptation in law to approach a statute as if its words had meaning in themselves and by themselves -- the authoritarianism sometimes shown by those devoted to maintaining the supremacy of democratic politics and legislative authority. . . .
Okay. But as my jurisprudent co-author, Jeff Pojanowski, suggested in a series of tweets responding to McFixity (yes, this the world we live in, I just wrote that), there may be room in an intentionalist metaphysics for a practical ethic of presumptive textualism. This is but one reason why it is important to distinguish theories of adjudication from theories of law, even while recognizing that how one interprets a law depends on what kind of law it is.
I worry more about the likes of a pseudo-Lonerganian like William Brennan than an actual Lonerganian like Patrick Brennan. One reason to worry about the latter at all, though, is that one can easily misread P to underwrite a constitutional jurisprudence of W. (Believe this because you've seen it done!) And so I'll conclude with a point I should have reminded myself of earlier: When Patrick writes of "common law method," and uses words like "potentially progressive and cumulative," today's readers should not assume these words mean what today's readers probably think those words mean, but should instead read more of Patrick's work to determine what those words actually mean.
June 30, 2016 | Permalink
I have argued against anti-Sharia laws in the U.S., but I have steered clear of debates about Sharia as applied in Muslim-majority countries. In light of outrageous examples of how Sharia is interpreted and enforced in some areas of the world today, fears about Sharia are a leading source of anti-Muslim sentiment. To the extent that Muslims favor Sharia, it is taken as evidence of Islam’s incompatibility with the premises of the American political system. But what if today’s Sharia-based governments are themselves misguided interpretations of Muslim history – not just in terms of the law’s content, but in terms of the legal order underlying the law’s application?
Asifa Quraishi-Landes has published her lecture, Islamic Constitutionalism: Not Secular. Not Theocratic. Not Impossible. She traces the “separation of legal authority in pre-modern Muslim lands that has all but disappeared today” between “siyasa, created by the rulers, and fiqh, created by the fiqh scholars.” As Muslim-majority countries emerged from colonial rule, they maintained a centralized, monistic legal order:
This colonialist mutation of legal-political systems in Muslim-majority lands has, sadly and ironically, created theocratic-leaning Muslim governments. But it is not the integration of religion and state that has caused these new Islamic theocracies. Rather, it is the integration of religion with legal monism that has created this phenomenon. . . . [W]ith independence in the twentieth century, many Muslims organized themselves into social and political organizations (often called “Islamism”) to remedy the wound of the colonialist purging of sharia in Muslim lands. But these Islamists operated with a rather stunning amnesia. Rather than looking to Islamic history for alternative arrangements of legal and political authority, they instead took the nation-state structure inherited from their European colonizers for granted, and simply concentrated their efforts on making that central state “Islamic.” . . . .
Muslim history shows that theocracy is not the inevitable result of every religious government, and secularism is not the only way to solve religious differences. For religious Muslims, it bases the legitimacy of state action directly on sharia principles. For secularists, it requires state lawmaking to be justified on something other than religious pedigree. It does this by articulating a model of government in which religious laws (fiqh) are only one of a two-part sharia-as-rule-of-law system, the other being state lawmaking based on human determinations of the public good (maslaha). This bifurcated system of law provides a way for a Muslim government to formally recognize fiqh rules without imposing them on those who do not want it.
The whole paper is worth reading.
My colleague, Mark Movsesian, has a very interesting essay updating the Henry Adams original. The essay connects in important ways to our Center's Tradition Project at St. John's, the first leg of which will occur this fall. A bit:
Like Adams’s dynamo, too, the Smartphone represents forces essentially destructive of tradition. In the civilization of the dynamo, Adams wrote, people found it impossible to honor or even to understand the claims of the past. In his essay, Adams recalled visiting the cathedral of Amiens with the American sculptor Augustus Saint-Gaudens. Adams noticed that Saint-Gaudens seemed unmoved by the spiritual power of the place—by the power of the Virgin, who had made the cathedral possible. Gibbon had felt the energy of Gothic cathedrals when he visited them in the eighteenth century, and had condemned it; Ruskin had praised it in the nineteenth. But by the twentieth, people no longer felt the energy at all. Saint-Gaudens admired the dignity of the architecture and the beauty of the sculptures, but perceived no meaning in them: “The art remained, but the energy was lost even upon the artist.”
The Smartphone likewise acts as a solvent on tradition, including religious tradition. Tradition depends on community—more precisely, on a community that sees itself as existing through time, an idea that is captured in the Christian tradition by the communion of saints. Such a community has claims on the individual by virtue of the fact that it has existed before him and will continue to exist after him. The individual is not completely submerged in the community; that would be a kind of totalitarianism. But he cannot create an entirely new world for himself, either. He draws his identity though his participation in a pre-existing, and in significant respects unchanging, order.
The Smartphone draws the user out from that sort of community. True, the Smartphone can promote a certain kind of community, a network of contacts who share interests, ideologies, even religious convictions. But it favors ephemeral interactions with strangers. It’s very easy to add people to your Contacts list—and just as easy to remove them and replace them with others. More important, the Smartphone encourages the user to spend his time in a virtual world he has curated all for himself. Not to mention the relentless, rapid updating of information to which the Smartphone has accustomed us. What claims can tradition have in a culture that values immediacy over everything else, and that has come to expect an update every five minutes?
Wednesday, June 29, 2016
Kevin's welcome reply to my recent paper arguing that Catholics especially, but all other reasonable people of good will as well, should reject McLaw, A Catholic Way to Cook a Hambuger? [You Bet], ignores the point I had hoped to make, preferring instead to make another point, a point no one I aimed to be in serious conversation with would deny. Yes, of course, human law, and therefore human lawmakers, must make choices not dictated by higher law; it's called determinatio of higher law by human law, as we all know. Two versus three or thirteen senators -- not a matter of natural (let alone divine positive) law! Even so, I would contend that my argument against textualism should have purchase with those who do not share my higher law starting point.
My argument against textualism addresses something altogether different from the need for human lawmakers to make determinatio. My argument goes to the fact that textualism's original (and personal) sin is designedly and systematically to discard the possibility of law *exactly* by substituting *probability* for *actual meaning*, that is, by substituting schedules of probable meanings for the (perhaps elusive) meanings promulgated by the (admitted) lawmaker. I readily grant, of course, that sometimes schedules of probable meanings are the best available *surrogate* for the lawmaker's actual meaning, but textualism, by its own boast, doesn't bother to stop and genuflect before the lawmaker as it processes by in favor of the expedient that is probability.
To repeat, the arbitrariness inherent in textualism that I identified in my argument has nothing to do with whether the number of senators is two rather than three, but with, rather, whether judges or legislators can licitly -- that is, legally -- decide (or collude) to make the legal meaning of "two," or "three," "stationary source," or "the judicial Power" be a function of recorded (or speculative?) probabilities. The compressed argument against textualism in my present paper presupposed (with benefit of citations) earlier papers of mine, beginning with Brennan, "Realizing the Rule of Law in the Human Subject," 43 Boston College Law Review 227 (2002). See also Brennan on "Avoiding the Authoritarianism of 'Textualism'" 83 Notre Dame Law Review 761 (2008)
My position, in sum, is that human lawmaking must be isomorphic with the method of human intelligence (because human intelligence in good working order is methodical, not episodic), or else divinely inspired; otherwise it's just better or worse authoritarianism; and, furthermore, that law is what the lawmaker means the law to be (assuming it is for the common good, etc.), not what interpreters interpolate via probabilities about meanings, except to the extent that such interpolations are, contingently, the very best the interpreter can deliver in aid of making what the lawmaker promulgated effective. Textualism is a remote second best, if that, but certainly not the higher road.
I have always suspected that the movie "Wall-E" was a more accurate glimpse of the future than I care to admit -- how do we get our minds around a world in which technology has made systemic underemployment a permanent and growing reality? An experiment in Oakland is hoping to begin providing some answers from a public policy standpoint. For MoJ purposes, how does and should the Church engage this (apparent) social trajectory? The Church has taught the "value of work not only because it is always something that belongs to the person but also because of its nature as something necessary." (Compendium of the Social Doctrine of the Church para. 287) But how do we honor its necessity to human identity and meaning when it is no longer necessary to the economic functioning of society? Our political leaders are unlikely to provide much guidance in the near term -- bringing jobs back to the U.S. by negotiating "great deals" -- is not a long-term answer. In addition to the other grounds on which the Church has resisted certain technological innovations, should we also resist innovation that defies the commitment to work as a necessary expression of the human person's dignity? I think the answer to that is no (or we should have been protesting long before now), but here's the unavoidable question that follows: what is the role of work in an authentic anthropology of the human person when work is no longer economically necessary for a large portion of the population? If these questions have already been explored through the lens of Catholic intellectual tradition, I'd welcome pointers on where to find those conversations.
What is the contribution of human positive law, fixed as posited, to the common good of a political community?
Until reading the paper, I had not paid sufficient attention to how it proceeds by weaving together an array of insights from a decade of Scarpa Conferences at Villanova Law. Although mention of this enterprise is at the center of the abstract, it is not until I read the paper that I appreciated how it is also at the center of this particular writing project.
The paper has seven parts, aptly titled Parts I through VI, followed by Part VII, Conclusion. As its title indicates, the paper is both about judging and about law. The two are related, of course, but they are also distinct.
For now, I'd like to focus on a single claim about an evil of textualism made at the end of Part VI, right before the beginning of the end of the paper. To understand this claim in context, though, it is useful to consider the three last paragraphs of Part VI together. Patrick writes:
I do not seek a perfect constitution. It would be a fool’s errand, because among us humans the good always is under construction (or destruction). I seek instead a constitution that optimizes legal and thus cultural conditions for constructing the good. Any constitution worthy of its supporters/subjects should assist those it rules by assisting them to perfect both themselves and the common good. (A point more or less clear already with Aristotle, but lost on modernity). To grasp this is to call for a constitution interpreted according to the common law method, with due modification, and this exactly because that method is isomorphic with the method of human intelligence itself, in that it is methodical and therefore potentially progressive and cumulative. Methodism with a small-c must be recovered and sustained if we are to escape McLaw.
Justice Scalia contended that our Constitution once was, and should again be, “rock solid.” Such would be McLaw: rock solid. Dynamic human intelligence, by contrast, is a rock on which to build exactly because it allows knowledge, both theoretical and practical, to “make [its] slow, if not bloody entrance.”
There are no cosmic guarantees that knowledge will make an entrance (we remain at liberty to elect nescience and evil), and meanwhile McWorld through its agent McLaw does violence to human potential, and specifically to our potency for social obedience to divine law, by attempting to stop history by the currently enacted rules (which fallible humans enacted fallibly). Textualism is an antidote that reduplicates but also radicates the evil: arbitrary fixity. One could do worse than the common law judge ridiculed by Scalia as “Mr. Fix-it.” For example, Judge Ronald McDonald, Mayor McCheese, the Hamburglar, and the rest of McWorld at play.
The "evil" here is "arbitrary fixity." Missing from this assessment is an acknowledgment of how some human positive law, fixed as posited, contributes to the common good of a political community. We have, for example, two houses of Congress, not one or three. We have one President, not two consuls. We have judges with life tenure, not fixed terms. Citizens of one state traveling into another are entitled to the privileges and immunities of citizens of that state, not to be treated as complete foreigners. The Constitution is to be amended in some ways, apparently to the exclusion of others. The Constitution is supreme law, not to be treated as foreign law by state judges. And we could add to this list, generated thus far by picking one (arbitrarily fixed?) feature from each of the first six Articles of the Constitution.
There is a sense in which we can describe these as "arbitrary" fixities. We reasonably could have chosen otherwise. But we needed to choose. And we continue to benefit as a political community by legal technology that treats those choices as fixed in place. Reason did not fully specify the choices to be made. But reason required that choices be made. And once made, the result of those choices need to be fixed in place in order to achieve the full benefits of the kind of constitutive choices made and promulgated through the constitutional text.
All of this is part of the straightforward natural law case for a particular kind of human positive law. It appeals is both Catholic and catholic.
I have not said anything yet in this conversation about judging. But I can at least observe that how to judge in accordance with the Constitution as law depends on what kind of law the Constitution is. This is one of the main points of the recent paper, Enduring Originalism, that Jeff Pojanowski and I have written. (Currently at 99 downloads ... free paper about the classical natural law foundations of positive-law originalism for the 100th downloader!)
As in this post, so in that paper, we do not say much about the activity of constitutional adjudication. But as we think through what we can and should say, we will have to think carefully about Patrick's proposed Methodism.
Tuesday, June 28, 2016
I've read commentary by some on the pro-life side who contend that the decision represents only a minor set-back. Charlie Camosy, for example, says it's not the "decisive setback . . . it seems to be." I hope he's right, but I fear he's too optimistic. It's not simply that Justice Breyer and his colleagues decided that the regulations in question didn't do enough to protect women's health to justify the burden they thought the regulations imposed on the abortion right. More troubling is what seems to me the fact that the so-called "undue burden" standard has been racheted up (just as, in my view, "strict scrutiny" was racheted down in the college-admissions case last week). And, even though Justice Kennedy had said for a majority in the partial-birth-abortion case, a decade ago, that the state has an interest in protecting fetal life and respecting the dignity of the unborn child throughout pregnancy, he joined Justice Breyer's opinion which I predict will be read by many as holding that, before viability, the state's only legitimate regulatory interest is protecting the health of women obtaining abortions. We'll see.