October 07, 2013
On Coherence and Confusion
Today is the feast of Our Lady of the Rosary, formerly known as Our Lady of Victory. The memorial commemorates the victory of the Holy League against the Ottoman Empire on this date in 1571. The Christian victory over the superior Ottoman forces was an important milestone in preserving, at least for a while, the Christian identity of Europe. Today the Board of Trustees of Loyola Marymount University (LMU) may vote on the whether the university’s health coverage for staff and faculty maintains or jettisons elective abortion coverage. This vote is a different milestone which will substantively affect the Catholic identity of LMU.
Some within the temporal media have chimed in the matter of LMU’s crossroads. For example, yesterday, October 6, 2013, The New York Times in an article by Ian Lovett, entitled “Abortion Vote Exposes Rift at a Catholic University,” begins by mentioning that not three weeks have passed since Pope Francis asserted that the Church is obsessed with abortion, but the author cites the pope with his words, “We have to find a new balance.” The New York Times did not mention that within hours of his La Civiltà Cattolica interview being published and from which these words were taken, the Holy Father addressed the International Federation of Catholic Medical Associations and discussed the matter of abortion in greater depth. If one were truly interested in what Pope Francis has to say about abortion, I would think it relevant to consider in coherent fashion his statements on this, or any, subject so that a brief, perhaps casual remark could be put into its proper context.
In remarks of September 20, Pope Francis exhorted the members of the Catholic Medical Associations to be witnesses and diffusers of the culture of life. Well, this same exhortation should apply to any institution that uses the moniker “Catholic.” As the pope explained, being Catholic entails a great responsibility, in accordance with the Christian vocation to culture, to remind others of the transcendent dimension of human life that bears the divine imprint of God’s creative work. In order not to leave any ambiguity in the meaning of his words, Pope Francis further asserted that, “Every child who, rather than being born, is condemned unjustly to being aborted, bears the face of Jesus Christ, bears the face of the Lord, who even before he was born, and then just after birth, experienced the world’s rejection.”
Coherent explanation is important to the law as it is to presentation of news and opinion. In the law, a segment of the law ought not to be read and applied out of the context of the rest of the same law or laws that relate to the same subject matter under in pari materia. But coherence is also important to informing the public of important matters of general concern that affect the common good, and the issue of abortion is one of these matters. To suggest, as The New York Times does, that matters of “academic freedom” and “social justice” are at stake if the Trustees of LMU discard elective abortion coverage from the health care plan is incoherent and confuses this important decision that goes to the soul of what LMU is and is not. Regarding academic freedom, there is little attention paid to the freedom of LMU to remain true to its Catholic nature. It seems that only the freedom of those who are not faithful Catholics is worth protecting. When it comes to the matter of “social justice,” does “social justice” demand the continuance of the snuffing out of innocent human life? Since 1973, there have been over fifty million abortions attributed to the United States. This is for me, and I am sure for others, a genuine concern about social justice, but this factor is also relegated to important facts not worth mentioning by some in the temporal media.
If today’s vote is a “symbolic battle for the university’s soul” as The New York Times suggests about the LMU vote, then perhaps Our Lady of Victory will bless her faithful sons and daughters at LMU with the wisdom necessary to confront the challenges of this struggle which are more than symbolic.
October 05, 2013
So What Is Papa Bergoglio Really Saying
Once again another Pope Francis interview hits the temporal media with the La Repubblica interview written by Eugenio Scalfari, a well educated man who left the Church but desires to engage the Holy Father. It is clear from the La Repubblica publication that the Pope's comments were not recorded digitally or in notes but in a mental reconstruction by Senor Scalfari. Once again, the temporal press is taking elements of the interview out of a much deeper context so their selective emphases distort what the Pope actually said, some of which has a bearing on juridical and ecclesial issues, particularly the social teachings of the Church which are of interest to many in the Mirror of Justice community.
The United States Assistancy has an interesting publication called the "Studies in the Spirituality of Jesuits." The current issue, which came out today, has the first of a two-part publication of some of Father Bergoglio's writings as Jesuit Provincial and formator. These writings are translated and edited by Father Philip Endean, SJ of the British Province. Philip and I are friends even though we don't always agree on certain points. But agreement on everything is not essential to authentic friendship. Father Endean has done an important service in this translation project by showing what underpins the contemporary expressions of Pope Francis that are hitting the press today. I have just read the first installment of the translations of some of the early Bergoglio writings, and the contrast on some matters between Father Ratzinger and Father Bergoglio appear from time to time. But what demonstrates a union of the minds of this two men who became the Vicar of Christ is their mutual concern about sin, salvation, and elitism or self-referentialism.
The Assistancy has kindly made Father Endean's most helpful work available HERE . I am confident that readers will find Father Bergoglio's past words informative and indicative of who he is and where he's going.
September 28, 2013
The Law, Rules, and Salvation
A few days ago I suggested that I would return to a brief comment on Pope Francis's recent interview on which others here at the Mirror of Justice have previously commented. I think that the pope's words have a bearing on the law as it is a system of rules or precepts. Interestingly, some commentators have focused on what the pope called "small-minded rules," but then not all rules, not all laws--be they of God or of Man--are small-minded. The pope also reminded priests of the need to offer in their homilies the need to address what he calls "the first proclamation": salvation. In view of these points, here is a homily for this weekend that brings together particular messages from sacred scripture and the pope's words:
Amos 6:1, 4-7
Wasting, self-indulgence, and complacency—while not necessarily evil—are not good attributes for any person to pursue. This is something about which the prophet Amos reminds us. This is one way to the road to sin, and sin exiles as from God as the prophet further suggests. In sin, we fall from God’s grace because we become absorbed in our own interests that may not be the things of God. Sin leads to a fall, a fall that damages the soul because we engineer a chasm between ourselves and the God of mercy and forgiveness. Yet there is still hope…
I was reminded of the significance of the fall and of hope on Friday morning as I was attempting to cross Michigan Avenue near the Chicago Water Tower. Intent on reaching the pedestrian light before it was too late, I did not realize that my left foot caught on the uneven pavement, and I was destined for a bruising fall. Here I was a sinner whose mind was on other matters but falling once again; yet, I was pulled from a more painful experience by three kind souls who were attentive enough to realize a fellow pilgrim in distress. The fall was broken by the hope displayed by those who came to my aid and helped save me from more serious consequences.
This episode of a modest form of a kind of salvation history recalls Saint Luke’s account of the rich man Dives and the chasm he established between himself, Lazarus, and Abraham. Dives was not intentionally cruel to the poor Lazarus or to anyone else. He simply did not see anyone else, including God. Lazarus is not real to the rich man because of the self-indulgence with which Dives surrounded himself. His whole life centers on himself.
The world of Dives can be summarized in this fashion: It is all about ME! The great chasm, the separation, is self-inflicted by Dives. He does not quite get the picture: no one forced him to do this. He chose this path himself. Abraham reminds Dives of this. Then Dives begins to wonder and worry about his five brothers—will they share the fate of Dives? It seems that Abraham is callous to Dives request to help the brothers. But this is not correct, for Abraham is telling Dives that they have had and continue to have warnings about the proper way to live one’s life in this world. All they must do is pay attention.
Hence the reference to Moses and the prophets: those who are inclined to sin nonetheless have warnings. All they need to do is pay attention to them, but do they? Will they? The answers to these questions depend on their openness to the God’s mercy and forgiveness. But first they must realize that they alone are causing themselves to sin. This realization was at the very core of Pope Francis’s candid interview with Fr. Antonio Spadaro a fellow Jesuit. Pope Francis returned to the reality of his own sinfulness.
But unlike Dives, Francis turns to the mercy and patience of God to receive what the pope calls the “spirit of penance.” Pope Francis, unlike Dives, realizes that even for the sinner—one who acknowledges his intentional wrongdoing before God and man—is the recipient of salvation.
Unlike Dives who was self-centered, Francis has shown the way that Christ, the One who came to save us from our sins, is and must be at the center of human existence.
What gets the human person back on track to God by turning from self-indulgence is thinking with God and His Church—God’s holy people. Francis warns that this is not thinking with the misguided populism that often captures the minds of those who live in the present moment; rather, it is thinking and acting in accord with those who seek the path to greater holiness and, therefore, proximity to God in their lives.
Francis’s words about “small-minded rules” have been misinterpreted and misappropriated. These “rules” have been confused with fundamental teachings of the Christian faith that are inextricably tied to human salvation. We need to be mindful that first and foremost Christ has come to save us from our sins and sinful tendencies. What leads us to this realization is not “small minded” in any fashion. To intensify the significance of the centrality of this principle of faith, Francis spoke of the importance of the sacrament of penance and reconciliation. Our good confession must be handled by a good confessor—not one who is too rigorist and not one who is too lax. With exuberant rigor, we may miss the mercy of God; with laxity, we may miss the fact that we have sinned and, like the woman in John’s Gospel who had sinned, that we are asked by God, through the confessor, to go and sin no more. The sacrament is not designed to condemn; rather, the sacrament was established to reform so that we sin less and less and seek authentic holiness more and more.
As Pope Francis properly noted, the sacrament of confession is not a “torture chamber” but a place that incubates and intensifies holiness. When we realize that our free will is better suited to directing ourselves to what we ought to do rather than to what we want to do, the mercy of God to absolve us from any defiance we have committed becomes all the more clear. The chasms we have generated by sin become crossable by the grace of God and His tender mercy. But when we ignore God’s mercy and beckoning to Him, we become like Dives separated from God and His holy people by the deepening chasm of sin. But the gulf can be forded when we acknowledge the wrongdoing that seemed at one time so attractive and excusable.
This is the message of salvation that Christ brought into this world; this is the reality of God’s self-gift and His suffering for our sins. All that is needed for the salvation to become complete is the redirection of our human will to embrace God’s mercy and forgiveness and to sin no more. But even if we cannot absolutely guarantee that we will sin nor more, may we at least seek to sin no more by not forgetting to ask God’s help to thwart whatever temptations come our way!
All that is needed is faith and adherence to what God asks. With that as our disposition: God will surely help us with the rest. For as the Psalmist reminds us: blessed are those who keep the faith, who hope in God, and who exercise caritas. Then will God’s protection and salvation be at hand!
September 23, 2013
On Universals and Particulars
First of all, I should like to thank Lisa for her kind, generous words in her recent posting “International Perspectives on Family” regarding last week’s conference in Rome that celebrated the 30th anniversary of the Charter of the Rights of the Family (the Charter).
As one of the key presenters of a formal paper (yes, Lisa, I think they will be published—but anyone wishing to see my final draft can request a PDF copy from me), I had to think long and hard about how a major document of the Church intersects not only domestic law principles but international law principles as well.
In doing so I reached a conclusion that I have arrived at probably thousands of times before that there is a connection between human law made by states and natural law reasoning. This became evident once again when I saw parallels between the laws of many national legal systems, several international texts, and the Charter.
The essence of the parallels is how human intelligence that thinks objectively (beyond its comfort zone, if you will) in comprehending the intelligible reality of specific matters can develop normative principles (laws) that are fitting and just not only for a particular place but for all places and all peoples. This claim reveals the truth about the basic structure and substantive content of the Charter.
I think this realization also reflects a further truth about law in general. While different legal cultures need to respond to the issues that are pressing upon that culture, there are, nonetheless matters which are of concern for all people and that necessitate universal norms. The Charter and its substantive content demonstrate this, as do the Universal Declaration of Human Rights and several important international human rights instruments of the latter half of the 20th century. All of these texts rely to a large extent upon the objectivity of natural law reasoning.
Here is where an important element needs to be introduced about the Catholic take on law. Like Lisa, I saw at this conference members of the faithful from virtually every continent who, in spite of their particular concerns back home, largely agree on the need for universal principles designed to promote and protect the fundamental unit of society—the natural family. In this context I reflected on how often I have heard some American Catholics who are, when all is said, very kind and decent people, nonetheless claim that the American (i.e., USA) church is very different from all others because of the uniqueness of the polity in which we live. Well, in some ways, this can be said of all the local churches around the world including those of the several hundred dioceses of the United States. But still, in spite of these differences, there is a need to acknowledge through the application of objective reason that these local and particular differences cannot and must not interfere with the universality of fundamental Church teachings which are of significance to all persons regardless of where they are in the world. The truth of this claim became all the more clear as the conference of which Lisa and I were a part reached its conclusion on midday Saturday.
Again, I extend to Lisa my profound gratitude for her thoughtful words, and I look forward to the publication of the several formal papers delivered at this conference.
On a seemingly different but not unrelated matter, I hope to offer my reflections on Pope Francis’s interview of last week. It was interesting for me, at last week’s conference, to see how others around the world comprehend the pope’s lengthy interview, and how it has been perceived by influential members of our American culture. Again, I hope to tackle this chore soon and to contribute to the thread begun by Rick, given our dedicated purpose of developing Catholic legal theory.
September 07, 2013
The Use of Force: Fasting and Prayer
Pope Francis issued a letter on September 4 addressed to President Vladimir Putin of the Russian Federation who is hosting the G20 that has gathered at St. Petersburg for their periodic summit. [the letter is HERE]
The Holy Father follows the efforts of his predecessors of modern times beginning with Benedict XV (who was the Roman Pontiff during the First World War) who have exhorted the pursuit of peaceful means of resolving disputes—even disputes commenced by tyrants. It is important to recognize the international juridical elements of their pleas and how these Vicars of Christ, including Francis, emphasize uniform elements in their respective requests and pleas geared to avoiding the use of force. Their counsel brings a different dimension to the so-called Just War theory.
Interestingly, Pope Francis begins with a short discussion about economic issues, but as Popes John Paul II and Benedict XVI have emphasized in a number of their respective annual World Day of Peace messages, economic issues have a direct role in the stabilization of peace or its disruption.
A second important element—a point emphasized by both Benedict XV and Pius XII in their respective interventions during the two world wars—is to search for and use peaceful means for resolving disputes, for they have a far better hope of maintaining a just peace than does the use of force.
A third point follows: Francis, like his predecessors, is not naïve about the use of force and its existence and practice in the contemporary age. Therefore, if force is regrettably used, all efforts must be exercised to ensure that those adversely affected by any use of force or military conflict be protected with the necessary humanitarian aid so those who are the victims of the use of this force will suffer minimally, if at all.
In the meantime, those of us who are able to do so are encouraged to fast and pray for the wisdom of God which is the most effective means of resolving disputes and of promoting a lasting reconciliation.
August 24, 2013
But there is a coherent jurisprudential argument…
Like Patrick, I was surprised by Jody Bottum’s claim that there is no coherent jurisprudential claim against same-sex marriage (SSM). Since as early as 2000, a number of folks (on both sides of the SSM question) have been willing to engage in discussion and debate about the meaning of marriage. I am one of those members of this group, and I am joined by colleagues and friends here at the Mirror of Justice who have been willing to discuss the meaning of marriage in public forums.
Over these past thirteen years, a number of us have continued to express our desire to engage those with different perspectives on the nature of marriage and why the Church’s teachings on this important institution of civil society are correct. What I have also experienced is that there are supporters of SSM who are willing to debate the topic, but there are some—perhaps many—who are not. It appears that for them there is no need to discuss or debate: they are right because they are right and that’s all there is to it; there is no need for debate. Period.
Mr. Bottum, whose writing I have admired in the past because of his careful analysis and generally measured language, has made a remarkable departure from his previous modus operandi. Asserting that contempt against the Church and its authorities is deserved, he contends that the earned ridicule is based on “loony, pie-eyed judgment” leading the Church and her shepherds “to engage in a sex-based public-policy debate they are doomed to lose.” It seems that Mr. Bottum is of the view that the Church has initiated this particular debate (if in fact there really is a debate), but most of the time it is those whose radical and often totalitarian ideas raise the subject of sex, sexual orientation, gender identity, SSM, etc. and, in doing so, confound objective reason comprehending intelligible reality. But these individuals for the most part are not interested in healthy democratic debate because they are intent on foisting on the public “the things we share” but really don’t share.
I can just imagine that if someone who is opposed to the concept of SSM wrote and published essay employing the tone sometimes used by Mr. Bottum in his Commonweal essay, many would express outrage about the insensitivity and wrongfulness of such an attack. Where is the outrage now? Should there be outrage? Mr. Bottum and his supporters apparently do not think so.
Five years ago, I was invited to present a paper at a conference on SSM. I know the conveners well, and they labored valiantly to invite a balanced set of speakers with very different views on the meaning of marriage to address the issue of SSM. Interestingly, most of the SSM supporters who were invited to participate—all expenses paid—declined the invitation. I was looking forward to engaging some of the SSM supporters on the topics of equality and equal protection which are frequently employed by SSM advocates to justify their position. Sadly, the several SSM supporters who do rely on the equality argument, as I call it, chose not to attend and therefore would not participate. I cannot speculate why they declined the opportunity to engage me and others in discussion and deliberation, but it struck me and others that they did not want to debate the subject on a level playing field. Perhaps my impression is flawed, but I don’t think so. The hope of the organizers of the conference was to have a spirited, honest, and respectful discussion on “things we share,” but this aspiration was hindered. Honest and open debate has always been an essential element of robust democracy and the legal institutions essential to democracy. But recognition of this point does not surface in Mr. Bottum’s discourse on things we Americans presumably share.
This brings me to another point that I have already addressed on this site, and that is the emergence of a problem addressed more than half a century ago by individuals such as Jacob Talmon and Christopher Dawson. The problem is totalitarian democracy. For those unfamiliar with the entity, it is a despotic form of governance that emerges from the efforts of the members of a political and social elite who use the forms of democracy to construct a political institution where there is no departure from the unbridled will of the elite who are intent on controlling most, if not all, aspects of public and even private life. Such a political institution is contrary to the ideals of the American people and to which Mr. Bottum pays lip service but not genuine commitment. I would very much like to participate in the things that we presumably share with Mr. Bottum and with those folks with whom I cannot agree on all counts. But I do not fear meeting and engaging them in a respectful fashion which gets us closer to understanding the truth of human nature and the desirability of the good over evil; virtue over vice; and right over wrong. That is what democracy and the common good are all about. However, the totalitarian democrat is interested in none of this because the only thing that can be shared with him or her is that person’s view and no other.
This is not good for the law of a democracy, but, to borrow from Blessed John Paul II, it may be all right for a thinly disguised totalitarianism that calls itself a democracy.
August 09, 2013
Another Welcoming Address (hypothetical) at Law School Orientation
Thanks to Michael M. for his posting, with his substantive commentary, of Rick Garnett’s address on the mission of a law school at a Catholic university. I hope to offer a few other considerations to my friends who contribute to the Mirror of Justice and to our readers who are interested in the same topics addressed by Rick and Michael as we enter the Vigil of another academic year in which fresh faces and minds begin legal studies at a time when many folks properly raise and attempt to answer questions about lawyers, the law, and legal education. I hasten to add that this draft address will never be given by me. Perhaps one day it will be delivered, with many needed improvements I am certain, by someone else who shares my interests and concerns about the law and legal education which opts for the modifier “Catholic”. I further preface this draft address by giving it a slightly narrower twist from Rick’s in that my target is the fourteen law schools that have some affiliation with universities that rely on the duals monikers “Catholic” and “Jesuit”. In this context, I rely on the point made by then Father Avery Dulles, who studied the law for a year at Harvard before he was called to military service at the beginning of World War II. The argument he made in 1999 was that the second modifier, “Jesuit”, must mean an intensification of the first, “Catholic.” After all, as a Jesuit and lawyer and law teacher, I am confident that I have something to say about legal education in an institution which in some fashion relies on “the Jesuit tradition” (or something like this) that is rarely, if ever, defined. So, here goes:
In the name of the Father, and of the Son, and of the Holy Spirit, Amen!
Welcome ladies and gentlemen; welcome friends. Welcome to ________ School of Law. For many of you, the formulaic words I just uttered will be strange to you; for others, you have heard them before; and, for still others, you use them in the prayer that you have been offering to God for a long time. They are words that were used often by Saint Ignatius of Loyola the founder of the Society of Jesus, the Catholic religious order commonly referred to as the Jesuits. Moreover, they are words frequently used by the men of the Society of Jesus who founded schools, colleges, and universities across the globe over the past five centuries. But the Catholic Church is no stranger to education, including higher education. After all, the roots of the oldest, major European universities were in some fashion or other founded by people of the Church and for the Church.
I am sure that most of you might recall that somewhere in the promotion literature of this law school, you read and may even recall some reference to the Jesuits and their tradition in tertiary education. Moreover, I am confident that you were told that this education would be substantively different from that which you would have obtained had you matriculated at some other law school. I am also certain that in your time here, you will on occasion run into the term Jesuit again. But what does it mean? In particular, does it mean anything to you and to your education? Furthermore, what is really different about the education that you will receive here? Skeptics, including some of your professors and classmates, may suggest that reliance on the word “Jesuit” is a best an artifact of or, at worst, an impediment to the reason why you are here. And without any real clarity, you’ll be told that the distinction of the education to be had at this institution is different, but the reasons for the difference will often be ambiguous.
So, please allow me to explain what is or should be the distinction of this school, and let me offer an explanation why I think the skeptics are wrong. The reason for this school needing to take a different tack is that I think and believe that this institution is much more—or should be much more—than the Ivy League, big state university, or other famous private or public law school to which you may have gone or wanted to go but were not invited to attend. So, where do I begin in offering the distinction and the explanation proving that the skeptics shouldn’t be dubious?
Let’s start with history, something with which most of you are familiar. I am a student of history, but as you will soon discover, all lawyers who wish to be good at the craft of the profession need to be good historians in order to understand fully their clients, the specific cases on which they will be working, and the law itself. Research into the background of all of these items I just mentioned requires rigorous historical investigation. When it comes to the law, you may be surprised to find out that it, too, started a long time ago. Let’s begin with the ancient civilizations of the Near East. The Decalogue of the Old Testament has provided major contributions to our civil law of the present day in spite of the protests of some civil libertarians that there can be no connection between the things of God and those of Caesar. If you doubt me, just look at Commandments IV through X and then consider where, not if, they appear in the law that you will be studying. I realize that Commandment VI is disregarded by many in our society today, but it still is and should remain good law for people of good will. There are other major elements of the civil law of today that are rooted in the religious beliefs of our ancestors that many of us accept and follow today.
Since many of you are probably interested in rights—human rights—you may be surprised to discover that they, too, are rooted in the work of people of faith such as the sixteenth century Dominican priest, Francis de Vitoria, and the Jesuit who continued in his footsteps, Francis Suárez. These two fellows understood well that the human person is a citizen of two cities, to borrow from Saint Augustine of Hippo, viz., the City of God and the City of Man. Moreover, they also realized that what each and every human being can rightfully and objectively claim as his or her fundamental right is not a creation or gift of the state but of God. Rights inhere in the dignity of the human person. They are not something which the civil law gives; for whatever it gives, it can take away without any real question or doubt. Authentic rights are ingrained in the nature of the human person. As the person preexists the state, so, too, do the rights of the human person.
But with rights that are authentic come responsibility. This is something that many “experts” of the law fail to grasp today, but if they do, they are reluctant to admit this.
Everyone likes freedom or liberty, but not everyone thinks about the duties that tether the rights we claim to their responsible exercise. Sooner or later you will encounter in your legal studies the 1992 U.S. Supreme Court decision of Planned Parenthood v. Casey. The plurality of justices who drafted the interesting definition of liberty contained in this decision offered an exaggerated and subjective understanding of human freedom when they asserted that each person can determine without any outside influence what his or her freedoms are.
But this recent definition excludes something critical, i.e., the fact that the exercise of freedom must be objective if it is to mean anything that is durable. Objectivity, not subjectivity, makes us realize that we share a world with all of God’s creation that includes our fellow human beings. So, if you or I claim something as “my rights”, should we not consider that it is something that the other person should also be able to claim? But if my claim and your claim are directed in a head-on collision, what can prevent the clash? The answer is: responsibility. What I seek for myself is something that my neighbor should also be able to pursue if it is genuine to the dignity of all members of the human family.
This brings me to a second important item that should be a part of any aspiring lawyer’s education at this school which claims to be “Jesuit”: what is the law about? Does it have a nature? My answers to these two inextricably related questions is that the law is a mechanism of the societies in which we live—local, regional, national, and global—that must ensure the preservation of right relations between and amongst all the members of these societies. But how do we know what is needed to constitute what is right in our human enterprise of relationships, those planned and those that are not? You will hear an occasional reference in your legal careers, which begin today, to the natural law. Many will dismiss it as a relic of the past that is responsible for all sorts of problems such as the justification for slavery and the oppression of certain peoples based on sex, religion, race, ethnicity, etcetera. This dismissal is nonsense. Without the natural law, we would not have the means of objective reasoning that is essential to the law; moreover, we would not have the republican democracy that we have, but not seem to ignore, in the United States. The natural law is the use of objective reason by the intelligent mind to comprehend the intelligible reality that surrounds us so that our law-making will lead to norms that are just and proper because they are our tools of civil society to ensure the restoration and preservation of right relations amongst all peoples—local, regional, national, and global.
Thirdly, you will hear much about justice and its derivative “social justice” in your time in law school and your legal career thereafter. Moreover, you will often hear that this institution of social justice is what makes this school different from others because social justice is at the core of our school’s existence. Well, that’s all well and good, but let me ask you if you have ever heard any university and its law school proclaim that it is for injustice or, more particularly, social injustice? Of course not! But rarely, if ever, will you hear a coherent explanation of what justice and social justice mean and are all about. It is assumed that we all know what we are talking about when we employ these important and powerful concepts. But it is hard to imagine that political parties, nongovernmental organizations, lobbies, citizens’ groups, and individuals whose views on the law and the meaning of life are so dramatically opposed can use these terms to mean the same thing. Let me offer an explanation of what justice and social justice are and should be about.
I have already tipped my hand on the issue of justice: right relationship between and amongst people. What does this mean? It does not mean that I get or you get what we want as individuals. It does mean that we receive what is our due that is objectively determined by the reasoning process essential to the law, it administration, and its adjudication. In the search for justice we use the intelligence God has given to us so that it can be employed by virtuous people to assess and decide what is right and what is wrong; what is good and what is evil; what is worthy and what is vice. This is the path to determining what is due the person and his or her neighbor.
The matter of social justice concerns the recognition and practice of virtues by citizens and their societies that are essential to good governance and good law. What are virtues in case some of you don’t know? Well, the theological ones are faith, hope, and charity. These virtues are something that the Framers of our legal institutions in this country understood well. But they also understood that the cardinal virtues are also vital to the project we call the human or civil law. These cardinal virtues are: courage (the ability to stand up to pressure by doing what we ought to do and to avoid doing what we ought not do); prudence (the wisdom, the sagacity to comprehend what is at stake and what is needed to resolve problems we face with equity); forbearance (the ability to avoid the temptation to seek the self-satisfaction of revenge and retribution when mercy is needed to temper our judgment); and, finally, justice (the ability to comprehend what is due to each person as an individual and as a member of societies).
There are many other things that should be presented, discussed, and, yes, even debated by reasonable people of good will in their law school years, but the topics I have identified today are essential as you begin your career in the law at this school that likes to call itself Catholic and Jesuit. Questions will be a major part of your life here at ________ School of Law, so you are quite right to ask why should my proposals offered today be a part of your formation?
My answer is preliminary but, I think, also promising. If you consider what I have said here today, you will be a better lawyer because you will be a better person who understands more fully what you, society, and the law are about. It takes a better human being who comprehends the dual citizenships of which I spoke earlier to pursue this enterprise we call the law. When this comprehension seeps into your daily routine, you will have an increasingly better grasp of who you are, what life is all about, where you and your fellow human beings are going, and why we need a legal system that serves, not dictates the lives of God’s greatest creation—the noble human person and the societies of human persons.
Father Ignatius understood these matters well. And with God’s help, may you comprehend them, too!
May God abundantly bless each of you not only during your course of studies here at _______ School of Law but also during the rest of your lives in the law, this great gift of human society that our loving Creator has given us and for which we have a measure of considerable responsibility as lawyers through our ability to comprehend what He asks of us!
July 30, 2013
The Feast of Saint Ignatius of Loyola Redux
Readers of the Mirror of Justice may recall that two years ago on the Feast of Saint Ignatius of Loyola I posted at this site a pivotal segment of the Formula of the Institute by which the Society of Jesus was recognized by the Holy See back in the mid-sixteenth century. The link to my previous posting is HERE. A principal reason for posting then was to help readers understand why there is a Society of Jesus. The myths abound, but it is good to know the reality.
Since July of 2011 when I last posted on the subject of the feast, some things relevant to this memorial which the Church celebrates on July 31 and to the role of the Society of Jesus in the world (including the realm of education) have changed—whether for the better or not, I shall leave for another day. But one major change is clear as we have our first Jesuit pope, who is and remains a son of Father Ignatius. In spite of what others may argue or suggest, he remains a Jesuit until he is dismissed from the Society. I do not see any reason to justify this.
Still, I am asked by the curious, the faithful, and the skeptical a similar question: “So, what do you think of the Jesuit pope?” I think the intention underlying this question is to extract my impression of what the pope will do. My fundamental answer is based on the reason why Father Ignatius established a religious institute which was approved by Pope Julius III in 1550 under the Formula of the Institute. Here are some of the critical details that go into the formulation of my answer.
1. A man enters the Society of his own free will—because he desires to serve and follow Christ as a Soldier of God beneath the banner of the Cross. Once a member, regardless of his grade within the order, a Jesuit must continue to serve God and the Church with fidelity. Because he is a soldier, he may well face hostility from those forces pitted against God and the Church, but still he must serve the Triune God and the Church.
2. In particular, the Jesuit’s service to God and the Church is under the direction of the Roman Pontiff or whoever the pope appoints as his delegate. Since the current pope is a Jesuit, it is clear that this pledge of service which follows Pope Francis is not to serve himself personally but to attend with diligence and fidelity the office he holds which necessitates aiding God and the Church in whatever way he can.
3. The pope’s Jesuit service (and this applies to all members of the Society) can manifest itself in a multitude of contexts; however, there is one central objective of the order, i.e., to strive (a strong transitive verb) for two things: (a) the defense and propagation of the Catholic faith, and (b) the progress of souls in Christian life and doctrine. The tenets of the Catholic faith which Jesuits are called to defend and propagate (not sacrifice and frustrate) are revealed by God’s truth and the long history of teachings that the Church has established upon God’s truth. The progression of a person’s Christian life is to be accord with God’s truth as contained in the doctrines the Church has recognized over two thousand years. In this fashion, souls make progress by avoiding sin and seeking Christian virtue.
4. While the particular ministries for achieving the objectives of the Society of Jesus are diverse (education is a principal one), it is clear that another element of what the pope must do is to preserve, protect, and offer vigorously the sacraments of the Church. One of the sacraments is confession (the sacrament of reconciliation). It is through this sacrament that a penitent expresses his or her responsibility for offending God and the neighbor by freely choosing to sin. Yet, sin can be forgiven if the penitent seeks God’s mercy and forgiveness through the Church’s ministers who are competent to offer this sacrament. Pope Francis surely is a member of this group of ministers of this sacrament as he has already demonstrated on numerous occasions.
5. The sacrament of reconciliation is crucial the Church, her members, and the Society of Jesus because, as the Constitutions of the Society of Jesus note, the end of the Society is directed toward the salvation of souls—not only of the subject Jesuit but also of our fellow human beings whom we serve in many ways. The sinner is and must be loved; however, this does not translate into loving the sin as well. To the contrary, the sin must be identified and explanation offered as to why it thwarts God’s plan for human salvation. The reason why salvation is necessary is because of the existence of Original Sin and the commission of our own sins. Sadly, with our free will, sin is not a relic of the past, and this is something that Pope Francis has not forgotten and will continue to teach us even as he continues to reach out to all of us who sin. The sinner is not identified by who he or she is; the sinner is identified by what he or she does; what he or she fails to do; or, what he or she thinks of doing.
So, when the media, Jesuits, Catholics, and anyone else offer opinions about what the pope will do or what he should do, the authentic answer to this and related issues must be viewed through the lens of why the Society of Jesus exists. It does not exist to agree with popular culture; it does not exist to confirm the opinions of any elite; it does not exist to rationalize the license of freedom untethered by the responsibility for the common good and obeying God and His laws which is a duty of all Christians. The Society of Jesus does exist for the salvation of souls and saving the human person from sin. That is what Pope Francis is about because that is what a Jesuit is about.
July 14, 2013
Another Observation about Hollingsworth
I have been reading again the two marriage decisions issued by the Supreme Court recently, i.e., United States v. Windsor and Hollingsworth v. Perry. Previously, I offered several remarks on Hollingsworth on this site, but now I see a reason to add another thought about the Proposition 8 case, its influence on Windsor, and what Justice Alito said in his dissenting opinion in Windsor.
In Windsor, Justice Alito notes at page 15, footnote 7 of his dissenting opinion that the Brief of the Constitutional and Civil Procedure Professors, amici curiae, asserted in their Hollingsworth brief that Judge Walker’s “factual findings are compelling and should be given significant weight.” This brief continued by stating that “Under any standard of review, this Court [the Supreme Court of the United States] should credit and adopt the trial court’s findings because they result from rigorous and exacting application of the Federal Rules of Evidence, and are supported by reliable research and by the unanimous consensus of mainstream social science experts.” [Italics added by RJA sj] Several of these claims by law professors cited by Justice Alito are untenable. Why do I make this observation?
First of all, one of Judge Walker’s findings (with references to the supportive testimony; in particular one deponent’s statement that the “Catholic Church views homosexuality as ‘sinful’”) was that: “Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.” Fact Finding, N. 77, p. 101.
The more I consider what these colleagues in the teaching profession have indirectly said about religion (Catholicism, in particular) by urging adoption of Judge Walker’s findings and the shadow that their arguments about his findings cast, I appreciate all the more what Justice Alito said regarding these contentions: “Only an arrogant legal culture that has lost all appreciation of its own limitations could take such a suggestion seriously.”
I will put aside the issue of sinfulness mentioned in Judge Walker’s findings since I do not think Federal judges or other civil officials should decide whether any act is sin or sinful. Making this determination falls outside of the civil official’s competence. Catholic teaching informs us that any sexual activity—be it hetero- or homosexual—outside of marriage that is the union of one man and one woman is also sinful. But whether this religious belief harms co-habiting male and female partnerships is a dubious claim to make. There are occasions where sin and wrongful doing under the law coincide. For example, lying is a sin. We had a discussion about this at the Mirror of Justice some time ago. But lying, e.g., perjury, is also an offense under the law. In such a case, a court dealing with lying is not looking at the act of lying as a sin but, rather, as an offense against the civil code or common law. While not having the authority to address the sin, the court has the jurisdiction to address the purported crime and civil wrong.
Consequently, judges do have the competence to decide if something is right or wrong, i.e., consistent or not, with human behavior that is a subject of the law. In this context, let me parse the rest of the Judge Walker’s finding, relevant to this posting, that “Religious beliefs that gay and lesbian relationships are… inferior to heterosexual relationships harms gays and lesbians.” The issue of considering inferiority may well fall within the competence of a court as the judge(s) may raise the question of equality, equal protection under the law, and due process when one status may be considered inferior to another. So the next issue to consider is this: how does this matter of “inferiority” harm homosexual couples? Should we consider whether there is a qualitative and objective distinction between the two? Making this consideration is essential to whether or not there really is harm that needs to be addressed by the law.
In order to assess the merits or lack thereof of the inferiority argument, it is essential to consider whether the heterosexual couple and the homosexual couple are different in any meaningful, substantive way. Why? Well, one indisputable fact that did not make it into the findings of fact of the District Court helps shed understanding on the nature of this distinction: the complementarity of the sexes which is manifested in their sexual activity. This is a relevant fact upon which Judge Walker did not comment or recognize in this finding, but there is an implicit assumption in his finding that hetero- and homosexual couples are the same in every respect. But they are not.
But then, one might next ask: why should complementarity matter? It matters because two persons of the opposite sex (and who are of physical, biological maturity) have the capacity or the potential for the capacity to do something which the same-sex couple cannot do. In this regard, the same-sex couple is, in fact, “inferior.” It does not mean that they are necessarily less human or less deserving of legal protection on matters where the fact of complementarity of the sexes is not relevant (e.g., can they be denied the right to register to vote? No.), but when it comes to the issue of sexual complementarity having a bearing on marriage, there is a difference which makes one couple “inferior to”, i.e., different from, the other. As I have argued at the Mirror of Justice and elsewhere before, the accuracy and the truth of this distinction can be demonstrated with the following hypothetical: planet A and planet B are respectively colonized by humans; opposite-sex couples are sent to planet A, and same-sex couples are sent to planet B. I shall assume that neither group has the means of assisted reproductive technologies. In one hundred years we return to both planets. Will both still be populated? The answer is clear: No, only planet A will be. Why? The answer remains in the fact of the distinction between the two kinds of couples. While both kinds may have love and commitment, only those sent to planet A will be able to sustain the human race due to the complementarity of the sexes.
The religious person relying on faith alone might not make this observation; but the religious person who pays attention to objective reason can, does, and must contend that this distinction bears a vital difference between the two kinds of couples. But so can any other person, lay or expert, who makes the distinction based on objective reason that is crucial to rigorous and exacting applications of collecting data and evidence reach the same conclusion about this important difference between same-sex and opposite-sex couples. To contend, as the law professors cited by Justice Alito, that Judge Walker’s finding results “from rigorous and exacting application of the Federal Rules of Evidence, and [is] supported by reliable research and by the unanimous consensus of mainstream social science experts” is suspect, to say the least. While I tend to shy away from language employed by Justice Alito, I do not shy away from the logic and truth that undergirds his point.
The criticism and condemnation of religious persons for asserting that there is a difference between opposite-sex and same-sex couples is wrong; objective reality, which is the subject of “rigorous and exacting” fact-finding, demonstrates without question that those who make this distinction are making a truthful statement that is not only relevant but also vital to the law. To say otherwise is the real harm.
July 07, 2013
A homily for the Sunday after the Fourth of July
Luke 10:1-12, 17-20
This past week we prepared for a wonderful annual celebration—our Nation’s Independence. Events: reunions, parades, fireworks. A remembrance of those who preceded us—their sacrifices for future generations: for liberties, for freedoms, for self-determination—all in accord with the self-evident truths about the human person noted by Thomas Jefferson in the Declaration of Independence. Also, for many of us, we observed the second Fortnight for Freedom, which reminds us of our first liberty: the free exercise of our faith. We celebrate these and other issues—AND we reflect on the tribulations and triumphs that have made us and our country. Our nation’s story is a story of suffering and success; coincidentally, this is the story that Isaiah relates. The end of Isaiah’s prophecy proclaims that God’s People are once again in right relation with him and one another—hence prosperity abounds. God has blessed them abundantly. But that was not so, for many of the people had removed themselves from God.
This is the context surrounding the conclusion of Isaiah’s prophecy. Even though God’s people had, on their own accord, drifted from God—even apostatizing—God forgives and welcomes back home to Jerusalem the leadership of His people who had been abducted to a distant and foreign land.
Think of the ancient Hebrew slaves and the domination of Egypt over them. This is an important theme upon which Isaiah dwells—Jerusalem was ransacked and its leadership abducted. BUT, peace and prosperity were restored; God’s people and their leadership were restored to live and to prosper once they recognized and repented their turning against God and what He asked of His people.
Some other important points need to be considered regarding their story. When they remained in right relation with God, and one another, God blessed them in this independence. They exercised their freedom wisely. But, when they sought to do their own thing—cut themselves off from God and from one another, they did not prosper. They faced disaster in the kind of independence—from God—that made them focus only on what they wanted for themselves. They did not see the plight of others. They did not see God nor did they understand their vital relation with him!
So, what is independence; what is self-determination for us? How do we best understand it in the terms of who we are, people of a great Nation, and people of God? It is God who helps us understand better what our authentic human nature is, and what it means to be independent.
Saint Luke’s Gospel provides another forum for considering this.
Here are the seventy-two who are being sent off to evangelize after receiving their commission. They are told that there is much work and so few to engage in it—the harvest is bountiful, but the laborers are few. Through our baptism, we follow these seventy-two. We have also been charged with the duties associated with proclaiming the good news in a variety of ways. We encounter people and a culture that is not always receptive to God’s ways—something that often gets prominence whenever certain elements of society pursue a wrong course of action.
By way of example: the full page advertisement of Freedom from Religion Foundation in the July 4th issue of the NYT. These folks celebrated the “Godless Constitution”—and relied on the slogan “in reason we trust.” This is misguided; this is wrong. Washington, Adams, and Madison, on whom they rely in the advertisement were men of faith. Even Jefferson, who is also quoted, insisted that religion be taught at the University of Virginia, which he founded. Another element to consider is this: the American Constitution Society of (the ACS for short) a few years ago published a booklet containing three founding documents of our nation: the Declaration of Independence, the Constitution, and the Gettysburg Address (150th anniversary of the Battle of Gettysburg was commemorated this past week).
For Lincoln’s address the ACS left out the phrase “under God.” Why? It took people like Professor Robbie George of Princeton University to notice that something important to Lincoln was missing from the ACS publication of the Gettysburg Address. Perhaps the ACS, like the Freedom from Religion Foundation, also think and assert that the nation and its fundamental law are Godless. For starters, they ought to reread Jefferson’s Declaration very carefully wherein he, Jefferson, refers to our Creator who gave us inalienable rights which are components of the self-evident truths also mentioned by Jefferson.
In this context, the new encyclical, Lumen Fidei has something quite relevant to the theme of today’s scripture readings. In N. 26, Pope Francis (with assistance from Pope Benedict XVI) asks an important question: “Can Christian faith provide a service to the common good with regard to the right way of understanding Truth?” Of course, ours is a faith of reason—a reason that is objective, unlike that of the American Constitution Society or the Freedom From Religion Foundation. So what is there to do, if anything, by us, God’s present day laborers? Fidelity in God’s truth—that is what there is to do, and, as in the time of Jesus, more laborers are needed. But we might be a good starting group!
Nevertheless, we must be mindful that there has been and will continue to be opposition to the truth of God. Those who remained faithful to God’s ways in the past experienced PRESSURE. How about our time? Will those of today, who also remain faithful, experience the same pressure? It seems that we are constantly reminded by the skeptical that religion might be tolerated, but only if religion remains a private matter and out of the public square. But this is not what God’s people are called to do: i.e., to be faithful only in private but not in public. Be assured, my friends, that God doesn’t abandon us in our times of need when we strive to remain faithful and serve him in our daily lives; so, let us be bold by seeking, proclaiming, and living the truth of God in the light of our faith even though there is pressure to do otherwise. That is a part of what Francis has asked of us because that is what God has asked and continues to ask of those who freely respond to be his laborers in the present age.
These thoughts give us an opportunity to reflect on how we can take up our call with the seventy-two. Sometimes in great ways, but most of the time in small ways, God, through the Son, asks us to go out amongst the wolves of our time. We are asked to encounter a culture, a people who have gone astray, BUT to remind them that the kingdom of God is at hand—the kingdom in which every person reflects the greatness of God through the joyful gift of life that can only be bestowed by God.
But how do we do this? How do we know what it is that God asks of you or me? Jesus—filled with God’s wisdom— shows us God’s ways of greatness that lead us to that authentic human destiny that makes us FREE from and INDEPENDENT of the Shackles of the Slavery of our misdirected ways—ways that make us want things that remove us from the nobleness of God that can also be a part of our human nature.
Jesus—wants to place a yoke on us. Not a yoke of slavery, but a way of life that binds us to one another and to God. This yoke is not heavy, the burdens it generates are bearable—they are easily maintained because, as Matthew indicates, Jesus is there to help us support whatever burden may be produced. YES, we are independent in many ways, ways that make us the agents of the gift of free will given to us by our Creator. But in the exercise of this great gift, we must also see how we ARE INTER-DEPENDT on one another and with God—for this too is part of our authentic human nature and our part of our heritage as patriotic Americans. But when temptations lure us away from this nature, prayer is needed.
May our prayer for one another and for ourselves be that we are open to God’s revelation that the meek and humble—not the superficially powerful—see and adopt in their lives. For, filled with the Peace of Christ and the Wisdom of God, we are truly independent because we rely on our interdependence with HIM who saves and whose divine image we bear.
With this as our guide, let us join the seventy-two in their, and our, search for God’s peace to those places where God’s harvest is abundant but where He needs more workers—more disciples! God has given us the benefit of discipleship in our baptism; may we not respond to one who is so generous to us?
And with this as our proper attitude, we can see that the few in number will continue to grow, and with this it will be possible to ensure that God’s harvest will be all the greater. My dear sisters and brothers, are we free for this commission? Our presence here at the Eucharist suggests that we are, so may we continue to be mindful that there is no greater independence than to follow the Lord!