Tuesday, August 26, 2014
Various news sources are speculating about the case of the former papal nuncio to the Dominican Republic, Josef Wesolowski, who is alleged to have sexually abused children and youth in the country where he served. Much of this speculation, often accompanied by misleading headlines of various articles, is just that, opinion and conjecture. There is not a whole lot of appreciation or analysis of the law of the Church and of nations that applies to this case.
Let’s start with the law of the Church. All things being considered, it appears that the Holy See acted as expeditiously as any sovereign would be obliged to do in reining in its natural person subject, i.e., Josef Wesolowski, through the exercise of the nationality principle (Wesolowski held and used a diplomatic passport of the Holy See). This is not the law of the “Vatican” or the Church or Holy See but the law of nations, i.e., public international law. Along with complementary norms of the Code of Canon Law, this principle of the law of nations would explain Wesolowski’s recall to Rome and the initiation of due process against him—a principle which applies to all sovereigns temporal and spiritual. It is the principle of personal jurisdiction which has led to his dismissal from the clerical state, i.e., his laicization. Some commentators do not understand the significance of this element of the juridical process. As a cleric, I can assure anyone that this is a legal event of profound legal, ecclesiastical, and moral significance. To many non-clerics, it may seem nothing or a mere tap on the wrist. In reality, it is something of momentous significance.
In the further exercise of due process, Wesolowski has appealed the decision resulting in his laicization. Of course, many defendants—be they engaged in civil or criminal proceedings—have the juridical right to appeal most decisions that are unfavorable to them. Mr. Wesolowski has exercised this right as it is the right of any defendant. Due process does not stop with the initial decision in most contested matters, nor does it stop with Wesolowski’s laicization.
Mr. Wesolowski has allegedly committed wrongs against his victims and against his priestly state that has led to his laicization, but he has also committed crimes against the law of the sovereign that issued his nationality as a diplomat. As long as he was a recognized diplomat, he enjoyed diplomatic privileges and immunities against the receiving country, i.e., the Dominican Republic, under public international law. The Holy See is a party (1964) to the Vienna Convention on Diplomatic Relations (1961) which specifies that diplomats are protected from virtually all law enforcement in the country where they serve. As Article 31 of the Convention states, “A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.” The Convention does have exceptions to this principal rule, but they do not seem to apply to the Wesolowski case.
If things get complicated for the diplomat because of actions that are covered by Article 31 of the Convention, he or she can be recalled by the sending state (here, the Holy See) or declared persona non grata by the receiving state (here, the Dominican Republic) and expelled. It is not appear that the Dominican Republic expelled Wesolowski, but it is clear that the Holy See recalled him and brought the initial legal action against him in the form of laicization and the removal of his diplomatic immunity.
It must be remembered who and what are protected by the doctrine of diplomatic immunity: it is for the protection of the sending sovereign (the Holy See). While the diplomat can benefit from the protection of diplomatic immunity, the doctrine does not subsist principally for the protection and convenience of the individual diplomat himself or herself. It exists under international law for the sending state which sent the diplomat so as to augment the efficient performance and functioning of diplomatic missions.
The legal doctrine of diplomatic immunity raises further issues about additional due process matters. This is clear from Article 32 of the Convention which posits that, “The immunity from jurisdiction of diplomatic agents… may be waived by the sending State” and the waiver ‘must be express.” But it is the sending State, here the Holy See, that makes this call. As the Holy See has stripped Wesolowski of his diplomatic immunity, it appears that further legal proceedings in the Vatican are pending against him. It would therefore be premature to suggest at this stage that Mr. Wesolowski has escaped justice that includes justice and its due process in the Dominican Republic and his native Poland. As his immunity has been purged, Mr. Wesolowski is subject to additional due process of law by any competent legal authority which has a rightful claim of jurisdiction over him. This could mean the legal authorities of the Holy See and the Vatican City State or the Dominican Republic or his native Poland.
One final point needs to be made now even though many more things can and need to be said about this case. There may be some plaintiffs’ counsel who will see the legal actions taken by the Holy See and the Church against Mr. Wesolowski as presenting an opportunity to sue the Holy See in the courts of the temporal authorities for the wrongs allegedly committed by him. I am confident that the Holy See and the Church will rely on the principles of public international law that have protected other sovereigns from liability from the wrongs perpetrated by their diplomats who committed grave wrongs against the citizens of receiving states and betrayals of the service to which Wesolowski pledged himself on behalf of the Holy See and the Church. Here one cannot dismiss the good will exercised by the Holy See with any competent legal authority concerning the means of redressing the wrongs he allegedly committed. They have apparently caused great wrongs against the people of the Dominican Republic, and they have also caused great offense against the Holy See and the Church, both of which have the legal right to proceed against him. To contend that only the Dominican Republic and her people have been wronged and the Holy See and the Church have not would generate a new injury; but this last injury has redress in the law of nations, too.
Wednesday, July 2, 2014
Amidst instant opinion analyses and surrounded by Supreme Court surveys, it might be helpful to step back even further and consider more enduring questions. To that end, I've collected below links to the John Courtney Murray Chair Lectures delivered by MOJ's Fr. Robert Araujo, S.J. at Loyola University Chicago School of Law.
As an invitation to enter into Fr. Araujo's Murray-grounded explorations of some of the perennial problems of law, morality, and their grounding in reason, consider Fr. Araujo's answer to the question of how Murray addressed the challenging era in which he lived. The opening paragraphs of Fr. Araujo's inaugural lecture:
Charles Dickens began his Tale of Two Cities with the memorable line, “It was the best of times; it was the worst of times.” Dickens’ great saga takes us back and forth between two very different worlds, one in England and the other in France, during the bloody turmoil of the French Revolution. The juxtaposition of such diverse places existing in parallel fashion suggests something about the times in which Fr. John Courtney Murray lived—in a world of depression, of two global wars, and of a new kind of tension called the Cold War. And how did he address the challenging era in which he lived? It may have been Murray’s training as a theologian that made him understand the best and worst of his times; it may have been the fact that he was a lawyer’s son who understood the importance of the rule of law in governing a society of ordered liberty; it may have been his priesthood which helped him put all of the tumult of his life and times into context. But he was largely a man of hope who was fortified jointly by reason and faith. Perhaps he took to heart Saint Augustine and realized that he was a citizen of—a participant in—two cities: the City of God and the City of Man.
In essence, the dual citizenship concept suggests that Murray was both a contributing member to the public square and an ardent American citizen. But he was also a faithful Catholic and obedient son of the Church. For some individuals, it is hard to imagine that such a person could exist, yet this is how he served the common good and the public interest during his relatively brief life. But because of his formation as an American and a Catholic, Murray demonstrated that American Catholics can simultaneously be faithful members of the Church and contributing members of the American republican democracy. Indeed, their greatest contribution to our democracy may be in recalling America to the understanding of the human person and human institutions that animated the founding of the country—an understanding whose greatest expositors include Fr. Murray, John Paul II, and Benedict XVI.
Friday, June 20, 2014
Upon reading Kevin Walsh’s posting yesterday on Constitutional and scriptural interpretation and mystic writing, I revisited work that I have done with the interpretation of legal, scriptural, and ecclesiastical texts over the past four decades. My interest in careful legal interpretation began during my time as a young lawyer working for a Federal regulatory agency. The horizon of interpretation expanded when I changed gears and entered the Jesuit order. My theology studies necessitated careful parsing of scripture and ecclesiastical documents. My graduate legal studies and subsequent teaching enabled me to return my love of legal interpretation. When the opportunity arose to pursue graduate legal studies, I chose to write my dissertation on developing a coherent method of using and evaluating legislative history in statutory interpretation. I realized that most textual interpretation, regardless of the genre of writing, has certain common denominators. One of them is that words are important because they convey important meanings; therefore, relating the words of a text or communication to one another is critical to the interpretative enterprise. Another one is to be familiar with the entire corpus of texts that has a bearing on the issue under examination—for all the ideas conveyed in all the relevant documents’ words again mean something that is essential to good interpretation. If the reader/interpreter is only familiar with a portion rather than the entirety of applicable texts, the interpretation can very well be incomplete. If, on the other hand, one fails to read any of the relevant texts but assumes the nature and, therefore, the meaning of their content, the interpretation of the texts and their application to human existence will be flawed.
In addition to Kevin’s posting, some of my other reading yesterday included the June 13, 2014 issue of Commonweal magazine. Of the many interesting articles published in this edition, the one written by Mollie Wilson O’Reilly entitled “The U.S. Sisters & the Holy See: A Culture of Encounter in Action?” (HERE) has a bearing on my present posting’s theme.
Ms. O’Reilly rhetorically asks why the Holy Father hasn’t intervened in the CDF’s doctrinal assessment of the Leadership Conference of Women Religious—or, as she presents the issue, “Why hasn’t Pope Francis stepped in to get the Vatican of the nuns’ backs?” Of course, no one is on the “nuns’ backs” literally or figuratively. It is easy to reach certain conclusions that every member of the Church is the same in the eyes of God. After all, each is a sinner but loved by God nonetheless. All that the sinner needs to do in his or her life is to reciprocate that love by acknowledging one’s own sins and sinful tendencies and asking for God’s mercy and forgiveness. But does this mean that everyone is equal in all other respects that concern the nature of the Church? Are we not different in some fundamental ways whether we are bishops, clerics, religious, or lay? Today, largely based on a false understanding of equality, many think that the Council established and promulgated norms which empower the faithful to minimize or ignore the teachings of the Church as reflected in the hierarchical offices of the Church. Is this in fact what the Council concluded? After all, the Council emphasized the notions and subsequent doctrines of dialogue and conversation of peers, did it not? Or did the Council conclude that the relationships amongst the People of God are different? Would the Council’s documents help answer these and related questions raised by Ms. O’Reilly? Would these texts also address concerns about the propriety of the doctrinal assessment? My point for today focuses on Ms. O’Reilly’s twice-made assertion that the LCWR’s actions which are the subject of the doctrinal assessment are consistent with the Second Vatican Council—or, as she says, “the vision” of the Council. Ms. O’Reilly’s article argues that the LCWR is in keeping with “the vision of Vatican II.” But is this a proper and correct claim? How and where do we find “the vision” of the Council? From my point of view, this issue is akin to that of the legal interpreter who is in search of the intent and purpose of the legislator.
In responding to the issues I have just raised, I should be obliged to answer them. In doing so, I am further obliged to conduct a careful reading of the applicable texts of the Second Vatican Council so that solid answers about the conclusions—“the vision”—of the Council may be ascertained as it pertains to the doctrinal assessment.
Among its many tasks and accomplishments, the Council acknowledged the importance and renewal of religious life for men and women who are members of the many and diverse religious communities that observe the evangelical councils of poverty, chastity, and obedience. Through its own citation of elements of the conciliar texts, the CDF, in its 2012 Doctrinal Assessment published on the LCWR, acknowledges and relies upon the work of the Council regarding religious and consecrated life in the Church.
What the Council concluded about religious life and any other matter falling within its work cannot be assumed—for any assumption about the Council’s conclusions can be filled with peril if the conciliar texts are not carefully examined. By reading the crucial texts judiciously, any reader can understand what the Council said and why the Pope, bishops, the CDF, and many of the faithful had and continue to have concerns about the LCWR. Whether there were and remain grounds for the assessment of the LCWR and who has the legitimate authority to conduct the assessment can be verified by ecclesial texts that are the record of our faith. When “the vision of Vatican II” as it applies to the deposit of faith is at stake, the relevant conciliar documents should contain and express “the vision.” This is the only way in which anyone can come to distinguish between the authentic vision of the Council and a mirage of the Council.
So, what do the texts of the Council say about the matters at the heart of the LCWR doctrinal assessment and of the related concerns of the pope and bishops, the faithful, and the LCWR about the assessment? To understand “the vision” of the Council as applicable to the LCWR/CDF issues and CDF doctrinal assessment, one should be familiar with the relevant documents on authority in the Church and on religious life which include: the Dogmatic Constitution on the Church, Lumen Gentium (LG) and the documents on bishops (Christus Dominus) (CD) and religious life (Perfectae Caritatis) (PC).
Chapter III of LG discusses the hierarchical structure of the Church with a special emphasis on the bishops. There has been much discussion, debate, and criticism about the Church’s hierarchical nature, the Petrine Office, the collegiality of the bishops, and the primacy of Peter (the pope). The Council reiterates that all the Church’s bishops are the successors of the Apostles and, therefore, are the shepherds of the Church. But they are not shepherds alone for their vital unifying force is the Roman Pontiff, the successor of Peter, the permanent and visible source and foundation of the unity of faith and communion. The pope is fortified in his office and primacy by the teachings of the Church as formulated by LG, N. 22.
In the twenty-first century, we witness on several fronts—those of clerics, the members of religious congregations, and the laity—sources of error which become the specific responsibility of bishops to address with charity, wisdom, and authority. A source of recent error, contested by the LCWR, is some of the activities of the LCWR and particular members of the organization. In this regard, a critical passage of Lumen Gentium needs to be recalled:
In matters of faith and morals, the bishops speak in the name of Christ and the faithful are to accept their teaching and adhere to it with a religious assent. This religious submission of mind and will must be shown in a special way to the authentic magisterium of the Roman Pontiff, even when he is not speaking ex cathedra; that is, it must be shown in such a way that his supreme magisterium is acknowledged with reverence, the judgments made by him are sincerely adhered to, according to his manifest mind and will. His mind and will in the matter may be known either from the character of the documents, from his frequent repetition of the same doctrine, or from his manner of speaking. LG, N. 25.
The clarifications offered by LG about matters intersecting the LCWR doctrinal assessment are complemented by the Decree Concerning the Pastoral Office of Bishops in the Church (Christus Dominus, or CD). The first chapter of this decree speaks directly to the issues about which this posting is concerned. The Council recalls how Jesus sent the apostles into the world to glorify God and to build up the Body of Christ, the Church. As St. Peter’s successor, the pope is charged with the overarching duty of protecting the faithful who are Christ’s people. With this commission comes “supreme, full, immediate, and universal authority over the care of souls by divine institution.” CD, N. 2. As the first bishop, the pope is solemnly charged with the care of and the common good of the universal Church and of all the churches within it. In essence, the primacy of Peter is the primacy of the pope. This primacy belongs to no one else.
A principal duty of each bishop is to be a teacher of the Gospel to all within his territorial jurisdiction—“let them teach with what seriousness the Church believes these realities should be regarded.” CD, N. 12. The responsibilities of the episcopal teaching office cannot be taken lightly nor should it be ignored.
Good teaching is an acquired skill necessitating patience, diligence, and perseverance. Every bishop is primarily responsible for ensuring that the faithful and all others understand the doctrine of the Church—especially on those matters dealing with “the human person with his freedom and bodily life, the family and its unity and stability, the procreation and education of children, civil society with its laws and professions, labor and leisure, the arts and technical inventions, poverty and affluence.” CD, N. 12.
But the Pope and the bishops are not the only ones who labor for Christendom and the Church; after all, they require helpers in the furtherance of the work entrusted to them by Christ. The group of workers relevant to my discussion in this posting is the LCWR. Two texts of the Council quickly apply to this group of the faithful. The first is, once again, LG which addresses the evangelical counsels of poverty, chastity, and obedience that have long been the cornerstone of religious life in the Church. The counsels are instruments which make the men and women religious effective collaborators of those to whom hierarchical office has been entrusted. LG, NN. 44-45. The evangelical counsels also provide the structure for vigorous apostolic or contemplative life that serves the welfare of the entire Body of Christ, the Church. Through the fraternal association that is inherent in the counsels, the “militia of Christ” is reinforced. LG, N. 43.
The Council fathers expressed with clarity that religious life is not some middle ground or hybrid entity between lay and clerical life; rather, it draws from both of these groups to serve as witness of the gift of the evangelical counsels in the prayer and work of the Church and by a special bond to God through the exercise of the gifts of apostolic or contemplative life as overseen by the competent authorities of the Church. LG, N.43. Hence, it is the duty of the ecclesiastical hierarchy to regulate the practice of the evangelical counsels for they have a momentous bearing on the Church and her welfare. LG, N. 45. In short, the life of the evangelical counsels consecrates the person fully in service to and for the welfare of the Church and God’s people in diverse but rich ways. LG, N. 44. Moreover, the counsels are a means to ensure that men and women religious maintain their dedication to their vocations and to those individuals who are competent ecclesiastical authorities. LG, N. 45.
Today there is evidence, some of it cited by the CDF doctrinal assessment, that some members of the LCWR, by word or by deed, distance themselves and their activities from these competent ecclesiastical authorities. The potential for this happening was recognized by the Council fathers who emphasized that it is the proper duty of the ecclesiastical hierarchy to regulate the practice of the evangelical counsels and those who profess vows or in some other fashion follow the evangelical counsels. LG, N. 45. Thus, members of the religious institutes are obliged to “show reverence and obedience to bishops” because of their pastoral authority in the local churches where the religious institutes work and pray for the “need for unity and harmony in the apostolate.” LG, N. 45. To claim that “conscience” entitles anyone to depart from the Church’s authentic teachings that are essential to following Christ is a perilous course that hinders the work to which men and women religious are called to perform in fulfillment of their individual and corporate ministry.
The Decree on Religious Life, PC, acknowledges how the Church profits from the diversity of experiences, charisms, and talents which each of the religious institutes presents to the People of God. PC, N. 1. But if these gifts are to flourish, it is essential that men and women religious remain uniformly faithful to the original spirit of their institutes as appropriately adapted to the “changed conditions” of the modern world. PC, N. 2. Otherwise the justification for their existence becomes ambiguous or, worse yet, irrelevant.
Although the Council urged renewal of religious institutes that would include the abandonment of outdated laws and customs, PC, N. 3, it was simultaneously noted that the approval of the Holy See to the renewal process is essential due to the nature of its office. PC, N. 4. This principle is consistent with both the hierarchical structure of the Church and the Church’s need for universality. Renewal does not mean reinventing or compromising the faith and the moral life that must accompany the faith. By living, working, and praying in fidelity to the Church and the charism of their respective institutes, men and women religious are able to serve the Church with their entire selfless being by a vigorous practice of particular virtues that include obedience, humility, fortitude, and chastity. PC, N. 5. Daily prayer and the Eucharist are therefore essential to the vitality of religious life as they cultivate a stronger bond with the universal Church’s mission. PC, N. 6. As with priestly formation, religious formation must be accomplished by selecting directors, spiritual fathers, and instructors who “are carefully chosen and thoroughly trained.” PC, N. 18.
While this is a bird’s eye view of the relevant conciliar texts that have a bearing on “the vision” of the Council as it applies to the LCWR doctrinal assessment, my presentation, first and last, takes account of what the Council actually said about the pope, the bishops, and religious institutes and their organs regarding the issues presented and charges made in Ms. O’Reilly’s article. The relationship of the persons who hold the offices and statuses discussed here are a part of “the vision” of the Second Vatican Council. Indeed, if “American women religious draw their remarkable strength in part from a half-century’s experience living out the vision of Vatican II” as the O’Reilly article contends, the authenticity and durability of this strength must be established on what the Council actually said and not what it did not.
Thursday, June 5, 2014
Cambridge University Press has just published a new sourcebook entitled Religion, War, and Ethics. The project took place under the guidance of Greg Reichberg and Henrik Syse, both of the Peace Research Institute of Oslo. The religious perspectives include: Judaism, Catholic Christianity, Eastern Orthodox Christianity, Protestant Christianity, Sunni Islam, Shi’ite Islam, Hinduism, Buddhism, Chinese and Korean traditions, Japanese traditions, and the Sikh tradition. Dr. Reichberg wrote the historical background of the Catholic tradition chapter, and I wrote the section dealing with contemporary sources. Unlike some anthologies where the authors simply write their contributions without any contact with the other contributors, we met as a group on a number of occasions to discuss one another’s chapters. In doing so, I believe we came to a better understanding of our own individual traditions as well as the others included in this project. As the publication is over seven hundred pages, this book will hopefully be a good research tool for theorists as well as those responsible for making and executing official government policies.
Monday, May 12, 2014
Sunday’s print edition of the Boston Sunday Globe has an interesting article by Professor Paula Monopoli who teaches at the University of Maryland’s Carey School of Law. The complete essay is entitled “Bail out law schools, but only with strings attached.” The online edition of her essay is here. For readers of the Mirror of Justice, I point out that the print edition of this issue of the Globe has many challenging articles on the evolution and status of tertiary and post-tertiary education of the present age.
In commenting on the current state of legal education, Professor Monopoli opines that law schools as the one-time “cash cows” of many universities are now dependent on their mother institutions for economic survival. She notes, and I largely agree with her on this point, that the dramatic modifications of legal education over the last several decades which have moved from large classroom courses to small seminars and clinical instruction have clearly increased expenses. While I am not opposed to seminars and clinics, I do not think that large courses should have been dispensed with as they have been on many fronts in today’s legal education. Moreover, I think that there is a Catholic take on what legal education could and should still be doing that has an influence on the problems which Professor Monopoli brings to light.
First of all, many if not most law schools have abandoned the fundamental core curriculum of year-long 1L courses of property, contracts, torts, civil procedure, and Constitutional law or criminal law. Most have been abbreviated to semester-long courses. Considering the nature of the law and the time needed to think about the law’s essence—to say nothing of learning something about good legal reasoning—is much harder to do in the abbreviated courses. Similar things have happened to core courses in the second and third year which may be highly recommended today but not necessarily required.
I hasten to add here that I am not endorsing the traditional curricula simply because they were traditional. My endorsement of the traditional curricula goes deeper. No matter how bright, how eager, and how zealous to serve humanity, law students need both skills, intellectual development, and the cultivation of moral bearings that can come from a well-administered traditional legal education. To be called on at random in order to address issues and postulate about how far a judicial opinion, statute, or regulation can be interpreted is a life-long skill that was too easily and quickly dismissed. To do these things in front of one’s teacher and a class of a hundred, more or less, students was not intended to be a form of humiliation but, rather, a technique to explain and advocate a well, objectively reasoned principle that could serve the common good. Moreover, the fact that a student has already recited once does not mean that the same person won’t be called on again. In their practicing lives, lawyers must always be prepared to learn, think, explain, and serve.
Professor Monopoli says in her article a few words about the development of faculty, too. She opines that there is a need for something beyond the JD degree for a prospective law teacher. While she does not offer much detail in this regard nor does she mandate that all faculty must have a Ph.D., she argues that there is a need for some kind of increased intellectual development. In this context, she suggests the development of “academic research skills like empirical methods.” This or other work in “statistical analysis would add intellectual rigor.” These are particular ways of training legal academics, but I suggest that there are other important, perhaps even vital, formation attributes that she does not mention.
These would include faculty who are well-read in the history and philosophy of law. Why do we have laws for civil society? What should they be promulgated to do? Are they merely a means to control, or are they methods for bringing the indispensable order to the liberty we all desire? Too many lawyers, judges, legislators, administrators, and law faculty argue or suggest that law and morality are separate institutions. With this last proposition I disagree. The law is, first and last, a moral enterprise that helps people, in spite of their differences, to live harmoniously, peacefully, prudently, honestly, charitably, and fraternally. When the law, its making, its administration, and its adjudication do this, the common good is near.
Another challenge for legal education which claims to be Catholic is the pressing need to ask the big question of “what’s it all about?” By not being timid to raise this issue, teachers and students who will enter some aspect of the legal profession will realize that the human person has a destiny other than the secular good-life, nirvana-on-earth which is often the standard offering found in today’s legal academy. If this question is pursued with regularity, such a legal education would be worth offering and pursuing. If it is not, the attraction of going to law school becomes less evident and, therefore, less appealing in the present climate.
A lot more can and needs to be said about these and related matters, but I shall stop here for today.
Alas, the advance of my cancer has necessitated my departure from the post-tertiary education tasks of the work and duties of American and Catholic law school and the accompanying university life, but perhaps there are those who find merit in what I have said and are willing to give it another try. If they do, perchance there will be no need for bailing out their schools.
Friday, April 4, 2014
Following up on our friend and good colleague Robert George’s contribution addressing the firing of the Mozilla Chairman, Brendan Eich, for exercising his Constitutionally protected rights to the detriment of no one, I would like to offer a simple complementary follow-up today to reawaken the responsibility of public duties held by Catholics and all people of good will. History informs us of our duties in public life.
In the law, history plays a prominent role as it does in so many other human enterprises. Members of society in general, and this includes Catholics, must keep in mind the lessons of the past so that the same mistakes and tragedies will not be repeated in the present day. In 1947, Christopher Dawson (about whom I have written before) discussed the issue of Catholics (and, I think, all people of good will) and the dangers of their remaining passive in the face of public duty. As he said, “they prove false to their own temporal mission, since they leave the world and the society of which they form a part to perish.” There is growing evidence that over the years we Catholics and other people of good will have trusted our leaders, neighbors, and fellow workers with their agendas about the nature of public life and have failed to respond out of right and duty. A part of this evidence is that the teachings of the Church that advance the common good and therefore the commonweal are no longer not only not welcome but not permitted. Timidity rather than embracing the counsel of Sacred Scripture, “be not afraid,” describes us accurately. The Eich firing is an illustration of the totalitarian juggernaut which indecorously brands him “anti-gay” when, in fact, he made a contribution to a particular political cause joining the ranks of many other fellow Americans who concluded that Proposition 8 was a cause they wished to support out of right and duty as citizens.
The law is a part of politics and public life in our society, but there is also mounting substantiation that not all views are welcome in public debate concerning the progress of law and legal regimes; moreover, there is clear indication that some views will be stamped out because they stand in reasoned opposition to the views held by others. In the current political and evolving legal climate that is taking our nation and our world in a dangerous direction, Dawson has further wisdom that serves as a catalyst to reawaken our public duty. Although he was speaking principally of developments in the academy of the late 1950s, his words apply to public life (including politics and law) as well:
[I]f Christians cannot assert their right to exist in the sphere of higher education, they will eventually be pushed not only out of modern culture but out of physical existence. That is already the issue in the Communist countries, and it will also become the issue in England and America if we do not use our opportunities while we still have them. We are still living internally on the capital of the past and externally on the existence of a vague atmosphere of religious tolerance which has already lost its justification in contemporary secular ideology. It is a precarious situation which cannot be expected to endure indefinitely, and we ought to make the most of it while it lasts.
Totalitarian juggernauts are malevolent, but they have a powerful will and they can prevail, even if only for a time, and eradicate any and all opposing views. This is why it is all the more important for all people of good will today, including faithful Catholics who believe and live what Christ’s Church teaches, to take seriously the thought of Edmund Burke that for evil to prevail in the world, all that is necessary is for good people to do nothing.
Monday, March 31, 2014
This past Sunday, March 30, The New York Times published an op-ed piece by Bruce Ackerman, the well-known professor of law and political science who has taught at Yale for many years. Ackerman’s contribution to the ongoing Constitutional debate was published under the title “Dignity Is a Constitutional Principle.” The focus of his opinion essay is on the same-sex marriage issue. The essence of his thesis, echoing the perspectives on human dignity found in cases such as Windsor v. United States and Lawrence v. Texas (relying on Planned Parenthood v. Casey: “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.”), is that laws prohibiting same-sex marriage are unconstitutional as they constitute an “assault on human dignity.” Professor Ackerman concludes his essay by quoting the Biblical Golden Rule cited by Senator Hubert Humphrey in the debate surrounding the passage of the Civil Rights Act of 1964: “Do unto others as you would have them do unto you.”
As an aside, it appears that Biblical references do not get automatically excluded from political and legal debate if they serve the interest, in some fashion, of the goal of the speaker who might otherwise argue that such a reference runs afoul of the Establishment Clause of the First Amendment. But let me return to my fundamental point for today.
Both Professor Ackerman and the resources upon which he relies do not define the important term dignity. Does an important term like this one which is used for advancing Constitutional claims require a sound definition so that when the term is used in political and legal discourse its meaning is clear to all who use it? Or is it assumed that the term needs no definition because there is universal understanding and acceptance of the term’s import? As friends and readers of the Mirror of Justice may recall, I, for one, think the clear and agreed meaning of language is critical to civilization and to the law that is a servant instrument of civilization. If the meaning of crucial language used in legal and political debates remains ambiguous, our legal and political discourse will be pointless.
If it is assumed that dignity is that which is due to anyone’s views, regardless of whether the views possess objectively reasoned merit, we are in trouble. We are in trouble because the position of the most aggressive totalitarian will be equal in dignity to the position of the most virtuous saint. If language’s meaning is relevant to legal theory, what is the Catholic take?
One can begin with a general understanding that human dignity has to do with qualities of the possessor that are worthy, have worthiness, and have worth. Worth (the root word used along with two of its derivatives in the previous sentence) means that there is honor in the holder who claims the dignity. Worth means that there is character or standing of a person in respect to that person’s moral and intellectual qualities and abilities. Jacques Maritain offered helpful insight about the sense of human dignity when he defined it this way: it “means nothing if it does not signify that by virtue of the natural law, the human person has the right to be respected, is the subject of rights, possesses rights. There are things which are owed to man because of the very fact that he is man. The notion of right and the notion of moral obligation are correlative.”
The first sentence presents the fundamental role of the natural law in defining dignity. I consider that natural law is the exercise of objective human intelligence comprehending the intelligible reality of the universe, which includes the nature of the human person. The third sentence of Maritain’s formulation is also crucial because human dignity is nothing if the claim to rights that are aligned with human dignity ignores the complementary and correlative moral responsibility that must attend all rights claims. These thoughts are absent from Professor Ackerman’s op-ed in yesterday’s Times. Although he cloaks his dignity argument in equality claims, he does not mention that while everyone is equal in certain fundamental ways (hence the equality between races in the contexts of voting and public accommodation) not everyone shares the same talents or interests. Hence, people do have differences that distinguish them from one another without these differences assaulting their human dignity and without undermining the importance of human dignity in rights discourse.
The op-ed article presents the view that there are no differences between opposite-sex unions and same-sex ones. Nonetheless, the distinction that many people still make between opposite-sex and same-sex couples demonstrates the need to consider legitimate distinctions when the topic of human dignity is under discussion. The rhetoric that these two kinds of relationships are the same for the purposes of marriage and human dignity does not, in fact, make them the same. Dignity may well be a Constitutional principle when it concerns the fundamental equality of humans on the basis of thoughts that correspond to the Maritain formulation. But it is not a Constitutional principle when the dignity/equality argument fails to consider and acknowledge the differences between people that are acknowledged not by human caprice but by objective intelligence comprehending the intelligible reality of differences in the nature and essence of the human person. Authentic human dignity is based on the truth about the human person and not the falsehood of political claims and the rhetoric used to justify these false claims. Objectively reasoned distinctions are critical to understanding equality claims and human dignity when they are considered Constitutional principles. Politically popular claims that do not take account of the reality of our objective intelligence that acknowledges authentic human nature do not advance but, rather, impede human dignity. Moreover, opinion polls siding with views that claim to be “on the right side of history” do not always serve authentic democracy, especially when they simply confirm the empty promises of a totalitarian regime.
Sunday, March 16, 2014
Thanks to Rick for bringing to our attention the recent article in The Economist entitled “What’s gone wrong with democracy.” I have not read Prof. Philpott’s book to which Rick also referred, but I hope to do so soon. However, I recently completed Erik Larson’s In the Garden of Beasts, which is an account of Ambassador William E. Dodd’s experience as the U.S. ambassador to Germany from 1933 to the end of 1937.
When Amb. Dodd returned to the U.S. in early 1938, he delivered an address in New York City and warned Americans and the world how democracy was in peril. It was not necessarily in peril solely because of totalitarian regimes like those of National Socialism in Germany or Soviet Communism in Russia. The source of the problem identified by Dodd went to democracy itself. As he said in his speech, even though humanity was in great danger of an impending disastrous world conflict, “democratic governments seem not to know what to do.” He was aware of the failure of the U.S and the great European democracies to respond to Hitler’s early threats even though there was ample warning. Thus, in Dodd’s estimation, “Western civilization, religious, personal and economic freedom are in grave danger.” (Those who argue that the Mirror of Justice addresses too frequently the issue of religious liberty today should take note.)
Dodd argued that the antipathy of the United States was attributable to the government itself and “certain privileged business groups” who let the crisis that led to World War II happen. Today I would add a third attributable source to this group who allow crises to emerge and prosper: those special interest groups who claim to represent everyone but, in fact, represent their own narrow and often valueless and amoral interests. Has The Economist article changed the analyses of Dodd’s insight?
From my perspective, if offers some solid evaluation of the problems which democracy must face if it is to survive, but it is also off the mark on other of its assertions.
The first point of value in The Economist article focuses on the desire for “rules-based democracy.” This is vital to democratic institutions if the rules (laws) that the democracy promotes and promulgates emerge from objective human intelligence that comprehend intelligible reality and serve the common good. But when the rules a democracy promotes are based not on this formula but on self-interest that denies the existence of objective intelligence and the common good, democracy can easily become a thinly-disguised totalitarianism as Christopher Dawson warned in the early 1950s and as Blessed John Paul II presaged in 1991 in Centesimus Annus.
A sustainable democracy, as The Economist claims the U.S. was, takes hard work of those members of society who are simultaneously its members. Benjamin Franklin was asked a question at the conclusion of the Constitutional Convention in 1787 by a Mrs. Powel, “What, Dr. Franklin, have we got, a republic or a monarchy?” Franklin’s pithy response was: “A republic if you can keep it.” Franklin’s response asserts that republican democracy is the work of everyone who is a member of the polis. It is not the preserve of the state—which ought to be a servant rather than master of the people who are governed—or of special interests; rather, it is the right and responsibility of all the members of the polity. And herein resides the problem which The Economist article attempts to address.
As the article implies, once crises are over, everybody—with the exception of the technocrats and special interests—seem to go on holiday. But democracy is and remains the work of the governed less they become the subjects of present-day overlords. The words of Lincoln at Gettysburg remind us that the government of the United States is “of the people, by the people, and for the people.” But if the people should lose interest in their right and duty to govern themselves, then many of the problems raised by The Economist emerge with growing ferocity because the government as defined by Lincoln has perished.
A major source of the challenges for democracy, according to the article, is that people are satisfied with receiving benefits from a welfare state but are not interested in contributing to the ruling of the state. Oddly, the article argues that present day China may be an attractive alternative to democracy. While the Chinese regime, as the article states, is obsessed with control, it pays close attention to public opinion. As the authors posit, “Many Chinese are prepared to put up with their system if it delivers growth.” The state has delivered growth, but that growth is now in decline. What will the state deliver in the future if this trend continues as it likely will? Public opinion is not the effort that promotes a durable democracy.
Ironically, the parallels between the problems identified by the article concerning Western democracy and the alleged solutions of China are the same: give the populace what they want right now. Democracy is hard work, the work of those who are simultaneously the governed and the governor. Bread and circuses did not work for Rome nor will this solution work for China, the U.S., or any other nation that calls itself a democracy. One Chinese academic referred to by the article argues that democracy is destroying the West. But this is not true. It is an imposter of democracy that is generating the problems which are corroding the cherished values that must be associated with self-governance.
The Economist further contends that “individual rights and independent judiciaries” are vital to stable and thriving democracy. To an extent, there is some truth to this claim, but more is needed for the claim to be true for the long run. Rights are a popular item for discussion today, but too many advocates for them forget about or even deny the correlative responsibilities that must accompany the claim to rights if the rights that are championed are to be durable. Moreover, rights are self-evident and the gift of the Creator and the source of human dignity. They cannot be the gift of the state, of some political party, or of a special interest. If they are, then they are gossamer. In addition, hard questions need to be addressed about what makes the judiciary independent? Independence from special interests and the power of a totalitarian state is a desirable thing, but independence from the accountability of objective intelligence that must comprehend the intelligible reality of human nature and the world so that the common good can be advanced is not desirable if the noble institution of self-governance is to survive.
I now find myself living in a part of the U.S. that calls itself the Cradle of Liberty. There once was a great sense of pride in this label because the region was a crucible of participation in the common life of the res publica in which the members of society were free to express their opinion and make their substantive contribution. Today, however, if one departs from the thinking of a one-party state where any departure from its orthodoxy is viewed as treason or bigotry, the end of democracy is not only near, it has arrived and taken up residence from which it seemingly cannot be saved. The desire to offer well-formulated objective reasons for alternatives to the product of governance may benignly be dismissed as some form of eccentricity; however, it can just as easily be treated as a new enemy of the state. The “micro-powers” of which the article discusses are not only evident in the world of international law and politics and the operations of NGOs and transnational lobbyists; they are also present in the backyard of local and regional politics in the U.S.
The article is on target when it mentions that the greatest challenge to democracy is from within the democracy itself. As the comic strip character Pogo said: we have met the enemy, and he is us. This is what Dodd contended in 1938; what Christopher Dawson identified as a growing problem in the early 1950s; and what John Paul II discussed in 1991. “[L]iv[ing] from day to day, indulging in the pleasure of the moment” is antithetical to good governance especially if it terms itself a democracy. The stability of such a democracy is only that of an edifice made of cards: impressive to look at but inherently unsound when even the smallest disturbance is present. The clear antidote is participation and responsibility. As was attributed to Edmund Burke, all that evil needs to triumph is for good people to do nothing. Apathy of the events of the day is a recipe for chaos and disaster. And that is where the Catholic academic who participates in the development of Catholic legal theory has and must exercise a responsible role in addressing the problems raised in The Economist article.
As teachers of the law we prepare the lawyers of tomorrow who will be leaders of their communities as practitioners, legislators, administrators, and judges. They are also citizens; they are members of the self-governed. What values do we inculcate in them? What kind of reasoning do we offer to them? What models of our own behavior do we present for their consideration? Our influence to alter the course that may lead to the end of democracy is not insignificant. We are not reformers; rather, we are renovators of the most durable form of governance yet established: the governance of, by, and for the people themselves. From our responsible participation, may others learn well, for the once cherished institution of democracy is at stake.
Saturday, March 1, 2014
A number of my friends here at the Mirror of Justice have recently addressed a variety of issues (e.g., the Arizona RFRA-styled legislative proposal just vetoed by the governor; new articles and editorials in America magazine discussing laws that are “crimes” and the Church’s attitude toward same-sex attraction and sexual activity; religious freedom; the role of government and law in society; etc.) dealing with the pressing questions that provide forums for the presentation of differing views on human sexuality and the legal protection that these views merit or may merit. A subtext pertaining to these issues from a legal perspective is the political idea and ideal of equality and the reality of equality. A further subtext is the role of religion—particularly Catholicism—in these issues and the discussions and debates that surround them.
It is assumed by some participants in the current political and academic debates on these matters concerning human sexuality that any difference in treatment or status between same- and opposite-sex is prima facie unlawful because it is discriminatory. But the notion of discrimination needs to be considered carefully so that it is understood accurately by society in general and by the law in particular. This is where the vocation of teaching and the discipleship based on Catholic thought have a crucial role to play.
The teachings of the Catholic Church condemn discrimination that is unjust (that’s a big modifier that will need more attention somewhere else, perhaps in another posting at this website). Why does the Church use in her teachings this crucial modifier? It would be illogical to condemn all discrimination across the board because human civilization and human nature rely on proper, i.e., just, discrimination. Those of us who are or who have been teachers discriminate in many ways. We discriminate in the evaluation of faculty candidates when we hire some but not others. We discriminate when we make substantive distinctions between and among student papers and final exams. We discriminate when we exercise our role in faculty governance by deciding which proposals before us we accept and which we reject. But these discriminations are not unjust because they are warranted, or should be, by substantive merits or their absence. In spite of some student protests, not all students will receive an A. Despite their aspirations, not all candidates for faculty positions will be offered teaching posts.
Yet, discrimination is not restricted to the world of the academy. Discrimination is exercised legitimately throughout human civilization when people make decisions about what cut of meat they can afford at the super market, or how big of an addition to their home will their budget permit, or how large a contribution, if any, can they make to alma mater. The list of discriminations that are admissible, perhaps even meritorious, goes on and on.
Nonetheless, some participants in the present day disputes concerning human sexuality press the argument that any difference of treatment between same-sex-this and opposite-sex-that is unlawful because some people are being treated differently from others. Therefore, such differing treatment is discriminatory and may very well be based on bigotry.
But this is not so because these claims are untrue.
They are untrue because the objective intellect, not political will and the might that often accompanies the will, comprehending the reality of the nature of the human person, human physiology, and biological differences can demonstrate that there are dispassionate distinctions separating and distinguishing the worlds of same-sex and opposite-sex. It is not bigotry to make this claim. Neither is it religious or other superstition. Rather, it is reality grasped by the objective and impartial intellect that makes and supports the distinction. But in the minds and resulting positions of some, the reasoned distinctions made between same-sex and opposite sex are impermissible because they are, from the outset, “bigoted” or “unlawful” without the need for further comment or justification.
This last point describes a vast element of the political and, therefore, legal world that we inhabit today and the supporting mentalities that faithful Catholics encounter that are forcing a dramatic and perilous change in the law and civilization. Thus, it is the duty of the Catholic teacher who remains true to the faith to point out with reason, with humility, with respect, and with resolve that this that claims about unlawful discrimination based on different treatment between same-sex and opposite-sex are wrong. It may well be that the time for the faithful Catholic teacher to pursue this responsibility is growing short, but the duty remains as long as these overwhelming errors persist. This duty can and should be welcomed where authentic dialogue exists. However, another hallmark of the present age is the attitude that relies largely on the success of one’s position, not because of reasoned argument but because of political clout and little else.
Thursday, January 30, 2014
Today, Pope Francis, S.J., had an audience with a delegation from Notre Dame. Rick, I am sure you are basking in this honor!
The Holy Father offered instructive words intended not only for Notre Dame, but for all persons involved with Catholic higher education. This would surely include legal education and the enterprise which is pursed at the Mirror of Justice. The major theme of the pope’s address is presented in these words of his,
In my Exhortation on the Joy of the Gospel (Evangelii Gaudium, hereinafter EG), I stressed the missionary dimension of Christian discipleship, which needs to be evident in the lives of individuals and in the workings of each of the Church’s institutions. This commitment to “missionary discipleship” ought to be reflected in a special way in Catholic universities (cf. EG, 132-134), which by their very nature are committed to demonstrating the harmony of faith and reason and the relevance of the Christian message for a full and authentically human life. Essential in this regard is the uncompromising witness of Catholic universities to the Church’s moral teaching, and the defense of her freedom, precisely in and through her institutions, to uphold that teaching as authoritatively proclaimed by the magisterium of her pastors. It is my hope that the University of Notre Dame will continue to offer unambiguous testimony to this aspect of its foundational Catholic identity, especially in the face of efforts, from whatever quarter, to dilute that indispensable witness. And this is important: its identity, as it was intended from the beginning. To defend it, to preserve it and to advance it!
I have two brief points to make of these words of the pope.
The first is that they have a tremendous bearing on the work and debates that take place here at the Mirror of Justice. After all, the discipline and study of law, certainly within the context of efforts directed at developing Catholic legal theory, involve moral issues; thus, those who pursue legal education from and in a Catholic perspective ought to be concerned about the Church’s moral teachings (including their propagation and defense) and the Church’s freedom to pursue those engagements with civil society that the Church chooses to engage. This responsibility is unambiguous and cannot be compromised—no matter how inconvenient; no matter what pressures may be faced.
The second point is much closer to home for me. While our Holy Father was addressing a distinguished delegation from a highly regarded school founded by the Congregation of the Holy Cross, I am quite confident that he did not exempt from the application of his exhortation the twenty-eight colleges and universities founded by his (and my) religious order, the Society of Jesus. There is no question that these institutions also have a crucial role in “the uncompromising witness… to the Church’s moral teaching, and the defense of her freedom, precisely in and through her institutions, to uphold that teaching as authoritatively proclaimed by the magisterium of her pastors.” It may be that there are some within the Jesuit network of higher education institutions who are willing to compromise on such matters, but I know that there are dedicated, faithful people who view such compromise as a betrayal of one’s duty as a disciple of Christ. Pope Francis is clearly one of them, for he recognizes that the unambiguous witness of the Christian cannot compromise on any matter central to the Catholic faith.
Time will tell to what extent his words and the sentiments they carry are shared within the world of Jesuit higher education.