Monday, October 6, 2014
Over the last two days, various editions of The New York Times have published an article by Christopher F. Schuetze entitled “A Bigger World of International Law.” This intriguing article discusses the growing interest in the study of international law across the globe; however, it mentions the prevailing role and influence of certain universities—especially Oxford, Cambridge, and east coast universities in the United States—in this critical educational enterprise. While Mr. Schuetze notes that the field of public international law “is gradually spreading globally,” a small number of universities in Europe and the US “hold a disproportionate sway when it comes to training the international-law elite.” In my own post-JD legal education, I pursued graduate legal studies at Oxford under the late Sir Ian Brownlie, then the Chichele Professor of Public International Law. He was a great legal theorist and superb teacher, but he was also an accomplished legal practitioner who thoroughly comprehended the inextricable nexus of legal concepts and their application to the people’s of the world in the context of the rule of law.
To this day I am grateful for the experience of learning under Sir Ian for I saw under his tutelage that it is not simply where public international law is taught that makes it a worthy pursuit but, more importantly, what is taught given the vital subject matter. This is the challenge to all those who are involved in the teaching and learning of public international law today; in particular, it is a challenge to those who teach law in the Catholic academy as my friends and colleagues who teach in institutions that rely on the moniker “Catholic” possess a substantial opportunity to mold what is taught about public international law.
In the early twentieth century the Canadian-born American practitioner and legal academic James Brown Scott recognized the significant contributions to public international law made by the sixteenth century Dominican Francis de Vitoria and Jesuit Francis Suàrez. It was not so much the “where” but the “what” that was important to Scott. In addition to circulating his own commentaries on these early fathers of public international law, Scott was instrumental in having their works published by the joint effort of Oxford University Press and the Carnegie Endowment for International Peace in the Classics of International Law series.
Due to the influences of Brownlie and Scott, I saw a need some years ago to bring students to an awareness of the de Vitoria- Suàrez contributions not only to public international law but to the idea of natural human rights. In order to take action on this need, I taught at several different institutions a course I dubbed as “Natural Law and Natural Rights.” It was ambitious in the sense that it required a good deal of reading each week; however, in studying with Sir Ian, I realized that reading a sizable corpus of primary sources every week was and remains essential to the task. As my course evolved, I came to the further realization of the bond between the work of the early Catholic pioneers of public international law and the evolution of American republican democracy. Should anyone be interested in seeing how my syllabus and reading list matured, I would be pleased to share these texts with anyone who may inquire. And who may be interested? Surely those of the Mirror of Justice community who support the view that there is such a thing as Catholic legal theory that is relevant to teaching law and to contributing to the rule of law. While most institutions that are considered part of the Catholic academy may not be viewed as members of “the international law elite,” to borrow from Mr. Schuetze’s phrase, international law is taught in these schools, and they are in an excellent position to provide those interested in this important subject matter with something of far greater substance than the name of the institution, i.e., the “what” is to be taught, which has a critical bearing on the progress of public international law and the durability of the rule of law.
Friday, October 3, 2014
Thanks to our friend and colleague Robert George for his post yesterday on the evolving difficulties facing Gordon College as it strives to live by Christian moral principles in a hostile climate. As a son of the greater Boston area who has returned home, I have been following closely the pressure that public and private institutions have been putting on Gordon College to disavow Christian morality and embrace whatever are the acceptable standards of the present age—as whimsical as they are. Professor George’s post about the travails of Gordon College also asks what we Catholics are prepared to do to assist fellow Christians in the face of peril. After all, as Martin Niemöller argued in his lectures about the threats posed to Jews, Socialists, Unionists, and anyone else who posed counterpoints to National Socialism, those seeking the capitulation of Gordon College may similarly seek the capitulation of other Christian institutions, including the Church herself, to do the bidding of the secular but untethered culture as Professor George notes.
However, Catholic institutions are already targeted by the sirens of the present age as was noted by Professor John Breen in his recent post about the California institutions that use the moniker “Jesuit” in the context of the HHS mandate and other state-controlled requirements for health insurance. Further evidence of the contra-Catholic campaign is found in the local Boston press. Back on September 1 of this year, James Carroll, a frequent opinion contributor to the Boston Globe, published an op-ed piece entitled “Abolish Vatican Statehood.” In his opinion, Mr. Carroll vigorously argues a position regarding the Wesolowski case on which I commented in late August [HERE] for “denying” the Vatican statehood. I will be amongst the first to concede that Mr. Carroll and many others hold the views he expressed, but these views are both misinformed and in error. [In the way of offering some background on why I take this position, readers may wish to consult my essay on “The International Personality and Sovereignty of the Holy See” Download 50CathULRev291 International Personality and Sovereignty of the Holy See].
Today, the Boston Globe by way of its lead editorial, “Vatican Trial for Abuse Suspect Undercuts Zero-Tolerance Goal” contends that “the church [sic] still seems stuck in the habit of protecting clergy members from secular criminal justice systems”. If anyone is stuck anywhere, it just might be the Globe by its failure to acknowledge the number of Catholic clergy who have faced criminal prosecution in civil tribunals in recent years. The Globe editorial implies that the “Vatican trial” of Josef Wesolowski furthers the alleged injustice, i.e., protecting clergy from the rule of law, due process, and justice. Is there a sound basis for the Globe’s allegations and arguments? My answer is “no.” The contentions presented by Globe in support of its questionable position are erroneous. Nonetheless, they offer evidence that pressure is on the Catholic Church to amend her ways that suit the culture of the present age that is often reflected in the opinions heralded by the Globe. Let me briefly explain why this is the case.
First of all, there is an implicit notion in the Globe editorial that only “secular” criminal justice systems are legitimate. Why should this be true if some other juridical systems that are not “secular” are capable of applying impartially respected legal principles in the context of due process that furthers the application of justice? The Holy See has been, is, and will be a sovereign power and member of the law of nations—just like the United States—which owes obligations to fellow sovereigns and natural persons but also owes obligations to the rule of law including its own.
The Globe editorial, nevertheless, appears ever so confident in making a shaky claim that, “the Vatican’s decision to handle Wesolowski in its own justice system is hardly a guarantee that justice will be done.” This is an extraordinary claim; moreover, there is nothing offered by the Globe other than its insinuation that the Holy See will not be true to the rule of law, due process, and the obtaining of justice for all involved. The Globe simply asserts that only “secular criminal justice systems” are the only competent judicial bodies because only they can send the message of “zero tolerance for perpetrators of abuse.” It strikes me that what the Holy See has done so far regarding Mr. Wesolowski sends a message in stark contrast to that offered by the Globe.
By making its claims about the juridical mechanisms of the Holy See, the Globe fails to take account of the fact that sending states, in this case the Holy See, have the first crack at their diplomats who have allegedly committed criminal acts in the receiving states consistent with the law of nations. If there is any doubt about this, we might refresh our recollections of the matter involving American Raymond Davis who allegedly killed two Pakistani nationals in Pakistan in early 2011. The United States insisted that he was an American diplomat (in the words of President Obama, “our diplomat”; moreover, Secretary of State Kerry sought the release of Mr. Davis with the promise that the U.S. Department of Justice would “investigate” the matter) although there is evidence suggesting that he was at the time a CIA operative (see more HERE). Throughout the Davis controversy, the United States maintained that Mr. Davis, like Mr. Wesolowski, enjoyed diplomatic immunity under the terms of the Vienna Convention on Diplomatic Relations. Other Americans on diplomatic mission for the United States have been protected by the Vienna Convention on Diplomatic Relations, e.g., the 1998 case involving Mr. Douglas Kent who allegedly hit a young Russian with his car; Mr. Kent was protected from Russian prosecution by his diplomatic immunity (the case also involved other questions about whether Mr. Kent was acting within the scope of his official duties and therefore immune from civil suit).
From these illustrative cases involving American diplomats or those argued to be American diplomats, it would seem that the United States has used diplomatic immunity to protect its citizen-employees. The Globe does concede that the Holy See stripped Mr. Wesolowski of his diplomatic immunity which makes him liable to due process. In addition, it is clear the United States has relied on its courts or other judicial organs when foreign sovereigns have protested the use of diplomatic immunity used to protect Americans from the criminal processes of the receiving state. On this point, it is relevant to recall the evolving concept of “complementarity” in international law which recognizes that the state principally involved in serious international criminal matters has the initial right and obligation to apply its law to its citizens who have been alleged to have committed an offense in the territory of the receiving sovereign.
This is precisely what the Holy See has done regarding Mr. Wesolowski. Furthermore, there is no indication that the Holy See has refused to turn Mr. Wesolowski over to the authorities of the Dominican Republic and Poland once the Holy See’s prosecution has been completed.
So, to suggest as the Globe editorial does that justice can only be done in a “secular criminal justice system” ignores the rule of law itself which the Holy See seems presently to be following. In addition, the Globe presumes without any further justification that the judicial bodies of the Vatican cannot “guarantee that justice will be done.” This is not a rational argument based on objective intelligence comprehending the intelligible reality of the situation which has emerged so far in the Wesolowski case. Rather, it seems to be a means of pressuring the Holy See to do things the ways which further the interests of the Boston Globe but sacrifice Christian morality and general justice.
If this is the case, then the “new orthodoxy” to which Professor George refers is already on the steps of the Church and the message of no dissent from this orthodoxy, notwithstanding what the law of nations and the rule of law otherwise suggest, is loud and clear. To argue, as the Globe does, that the only “legitimate” organs are secular ones that are “outside the Vatican” furthers the transparency of my point.
Thursday, October 2, 2014
Prior to stepping down from the Murray Chair at Loyola University Chicago, I had a plan to develop the nexus between virtues and the law particularly in working on future installments of the lecture series that accompanied the Chair. I think our friend and colleague Kevin Walsh picked up on this some time back. Another dimension of my plan was the desire to continue examining this theme in the Murray Lectures for another twenty years or so—after all, longevity runs in my family’s genes. The latter part of the plan was defeated when I had to prematurely step down from the Murray Chair last December. This does not affect the first part of the plan and the hope that others may recognize some merit in the objective that I had identified. I think this objective is has an important role to exercise in the development of Catholic legal theory.
Reinforcing my view about the objective just mentioned was something I recently came across in my bedtime reading. One of my reading projects of late is C. S. Lewis’s The Screwtape Letters, first published in 1942 mid-way through the Second World War. In one of his letters to Nephew Wormwood, Screwtape counsels his young relative about this mission of evil in the world (something that was on Lewis’s mind and probably on many other people’s minds during the War). Screwtape emphasizes that their “real business” for the father of the underworld is twofold: to undermine faith and to prevent the formation of virtues.
The community of judges, lawyers, law students, law professors, and others who read the Mirror of Justice and who acknowledge merit in this website’s vocation might see how Screwtape’s own objective is one of the very things for which the Mirror of Justice offers a critical antidote especially when the link of Christian faith and the cultivation of virtues are things which the present age often ignore.
Wednesday, September 17, 2014
Today the Universal Church celebrates the optional feast of Saint Robert Bellarmine—a Catholic intellectual, a faithful priest, and prudent but courageous member of the Society of Jesus. He understood well Father Ignatius’s declaration that the purpose of the Least Society is to strive to defend and propagate the faith and to assist souls in Christian life and doctrine. But, really, is this not the calling of everyone who claims to follow Christ knowing that he or she is a citizen of two cities—the City of God and the City of Man? I hold and profess the view that all Christians, including those who advance Catholic legal theory, are, in one fashion or another, called to similar purpose as was Robert Bellarmine, who was trained in both theology and juridical science (like your humble correspondent). One other important element of Christian life needs to be recounted here as we consider today’s feast observing the life and death of Bellarmine: the Feast of the Exaltation of the Holy Cross which we celebrated this past Sunday. As I was celebrating the Eucharist, I prayed very slowly the words of the Collect: “O God, who willed that your Only Begotten Son should undergo the Cross to save the human race, grant, we pray, that we, who have known his mystery on earth, may merit the grace of redemption in heaven…” This prayer is intensified by the Gospel reading for the feast from Saint John that includes the oft-prayed passage of John 3:16. I am certain these principles of the Catholic faith were an ever-present guiding star of Robert Bellarmine in all that he accomplished and all that he tried to achieve in Christ’s name.
While Bellarmine was a learned man, a bishop, and a cardinal, he was first and last a humble servant of his and our Church who followed Christ in simplicity. Like our current Holy Father, Francis, he was attracted to the plainness of life lived by Saint Francis of Assisi. For us Jesuits, we are reminded how Father Ignatius states in his autobiography how he would like to be as Dominic or as Francis (of Assisi). But Father Ignatius’s exhortation is not limited to Jesuits; I am convinced it applies to all who follow Christ or claim to do so.
Returning to the nexus between the life, discipleship, and the work of Robert Bellarmine, I am certain that he continues to show those of us who dedicate our lives to Catholic legal theory how to seek in our apostolic service the pressing need to meet the grave challenges of our present age with prudence, courage, and fidelity. We cannot take for granted that all we meet and with whom we may labor are practitioners of the same virtues. One essential tool of which I have spoken often in the past, given the vineyards in which we work, is the need for the Catholic Christian to be mindful of the gifts of objective intelligence given to us by the Creator to comprehend the intelligible reality of the world and of the universe. Using these gifts wisely and without reservation should enable those of us who teach human law, as it is intersected by God’s law (we can never get away from our dual citizenship, now, can we?), to do so in a fashion the replicates the way of proceeding utilized by Robert Bellarmine throughout his life. He, too, lived in an age of skeptics fueled by a world of corruption, vainglory, and power-over-right, but he was not deterred from seeking out and collaborating with his fellow disciples and people of good will in his striving for the defense and propagation of the faith and assisting souls in Christian life and doctrine.
May we profit from his example not only on this day but for all the days of our lives.
Saint Robert Bellarmine, pray for us! Amen.
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.