Monday, January 12, 2015
I begin by thanking our friend and Mirror of Justice colleague Professor Michael Moreland for bringing to our attention news of the death of Walter Berns. He came to my undergraduate alma mater (Georgetown) to begin his late teaching career after I received my bachelor’s degree. I should like to have studied with him and learned from him. Several of my teachers who have also since gone home to God would speak enthusiastically about him to me thereby complicating my regret. One of the elements of Michael’s posting that caught my particular attention was the passage in which Berns brings up the matter of law and morality and whether there is a nexus between the two. On this subject I would like to offer a few thoughts today.
Berns, like others, was on to something. A little over a year ago I was to deliver the annual Murray Lecture at Loyola University Chicago in November of 2013. While the lecture was not delivered due to my having a prolonged hospitalization around that time, the editors of the Law Journal graciously published the lecture as they had done with all the previous Murray Lectures. The 2013 lecture was entitled “The Law as a Moral Enterprise”. I debated with myself if the title should have been “The Law Is a Moral Enterprise” but went with the designation chosen. The lecture is HERE: Download 46LoyUChiLJ293.
In the lecture, I wrestled with a notion that has attracted the attention of Berns and others, such as Lon Fuller and H. L. A. Hart. My view is that the law is frequently a moral enterprise if the adjective moral and the noun morality are understood to mean those matters involving human character and behavior necessitating a distinction and choice between what is right and what is wrong; what is good and what is evil. Those that rely on the position that you cannot legislate morality ever are, in my view, wrong. By way of illustrating my point, the civil laws dealing with murder, adultery, theft, and perjury require those who are subject to these laws to make distinctions between right and wrong; between good versus evil. These kinds of civil laws regulate the moral choices made by those subject to the law. By the way, the types of law just mentioned appear in the God’s law as well, but I digress.
But there are even some civil laws which, while facially neutral in a moral sense, nonetheless have a moral foundation if the analyst digs deeply enough to discover the connection. For example, civil laws necessitating that motorists drive their motor vehicles on the right side of streets having two-way travel (as they do in the US) or on the left side (as they do in the UK), at first blush, appear to be morally neutral. However, one can eventually see a moral element contained in these facially neutral laws which necessitate a choice between keeping the roads safe by mandating a uniform manner of travel. This choice is a moral one designed to protect people rather than to endanger people. Another example follows: while there is not much wrong in having a wee dram to drink at a social gathering and then to drive home, there is something terribly wrong in allowing motorists to drive while under the influence. Hence the civil law again requires the citizenry or subjects of the law to pursue the good and the right and to avoid the evil or wrong by limiting how much alcohol is consumed before taking to the wheel. These laws again deal with exercises necessitating people to make the moral choice.
As I intend to keep today’s post brief, allow me to conclude with a passage from the 18th century English polemicist and essayist who used the nom de plume Junius. In his January 1772 letter to the Lord Chief Justice Mansfield, he asserts the following in a passage dealing with the meaning and intent of the legislature,
To investigate a question of law, demands some labour and attention, though very little genius or sagacity. As a practical profession, the study of the law requires but a moderate portion of abilities. The learning of a pleader is usually upon a level with his integrity. The indiscriminate defence of right and wrong contracts the understanding, while it corrupts the heart. Subtlety is soon mistaken for wisdom, and impunity for virtue. If there be any instances upon record (as some there are undoubtedly, of genius and morality united in a lawyer) they are distinguished by their singularity, and operate as exceptions.
These words of Junius may well be a helpful catalyst useful for those of us who are interested in the law as teachers or practitioners or citizens; in the need to make good moral choices; in the desire to practice virtue; and, of course, in the pursuit of developing Catholic legal theory. With this in mind, the intersection of the moral and the legal may become more of the rule rather than the exception as hinted to by Junius.
Sunday, January 11, 2015
One of the disappointments of stepping down from the vocation of teaching is the infrequency of engaging students and fellow teachers about the elements that make a Catholic and Jesuit institution different from other law schools and universities which pursue or claim to pursue academic and institutional excellence. I am certain that this kind of discussion, or at least the need for it, has not dissipated in the current climate of legal education. Thus, I was intrigued by what Autumn Jones presented in her recent The Atlantic article entitled “The New Brand of Jesuit Universities.” [The link to the article is HERE.] Although the article presented many facets of higher education that rely on the modifiers “Catholic” and “Jesuit” which provoke and merit thought and discussion, the published perspectives of many of those interviewed for the Jones article were profoundly marred; hence, the nature of the enterprise of Catholic and Jesuit education was acutely misrepresented. If the perspectives offered in this article are the prevailing views of what Jesuit universities are and are not about, they will likely have, in time, an impact on most institutions of higher education which employ the moniker “Catholic.” If this is the case, then it will only be a matter of time for these views to have an impact on our Mirror of Justice project of developing Catholic legal theory.
Ms. Jones points out several times in her article that the charge of Jesuit universities is the desire, indeed, the necessity to think critically about everything discussed within the walls of the academy. One could well argue that this is the mission of all universities. However, does this really happen? I, for one, think that it does not. First of all, universities today—including those claiming to be Catholic and/or Jesuit—sustain a climate in which certain issues (for example: abortion; sexual and gender identity; sexual morality) which need to be discussed and debated are off limits. To borrow from one prominent American politician, certain matters are “sacred ground” and cannot be questioned. They can only be championed in spite of their dubious nature which often begs but infrequently produces critical thought and debate. A second matter follows: what can be questioned in the cultural milieu today without restraint are the teachings of the Church. This questioning is promoted in such a way that hinders exposition, objective discussion, or a faithful presentation of what the Church teaches and why she teaches what she teaches. While The Atlantic article contends that Jesuit universities are “a testament to the…willingness to confront rather than avoid difficult topics,” I contend that this is often not the case. My contention is based on the fact that I have taught or lectured at half of the Jesuit universities which sponsor law schools. If one were to try and engage others in an informed and objective presentation and discussion of these “difficult topics” on a Jesuit campus, he or she would likely be marginalized in a variety of ways. Someone close to me once tried in a respectful way to invite discussion and deliberation about the suitability of a drag show and a coming-out ball on a Jesuit campus; he was pointedly reminded that such matters were, in fact, off limits when he was summarily removed from the rotation of priests scheduled to celebrate the Eucharist in the university chapel. Third, the present cultural climate on many of these “difficult topics” sustains an atmosphere in which the “right” to abortion, the legitimacy of same-sex marriage, and the “right” of all to define for themselves (and everyone else) the nature “of existence, of meaning, of the universe, and of the mystery of human life” can never be questioned, critically or otherwise. These subjects are off the table. If you choose to raise them, you do so at your own peril. While the much-celebrated virtue of critical thinking requires patience, objectivity, and respect for and understanding of opposing views, it also mandates the inclusion of pressing issues that requires careful and courageous examination if the truth of the matter is to be sought.
At one point The Atlantic article discusses critical thinking within the framework of exploring variations in “religious ideology”. The choice of the word “ideology” is an interesting one. I would think that if the nature of critical thinking within the realm of Catholic and Jesuit education is being explored, the far better word would be “belief” rather than “ideology”. The term “ideology” might seem to equate tenets of faith, especially those of Catholicism as the subject of Jesuit universities is on the table, with political or other non-religious dogmas. One interviewee pointed out the importance for the members of the university to ask the “meaning questions” regarding faith; in this person’s estimation, the framework for doing this is to take the approach of “invitation Catholicism versus command Catholicism.” I do not think it is really a question of attempting to distinguish “invitation” from “command” Catholicism. Rather, it is a question of whether the Catholic faith and the Church’s teachings are (to borrow from the supporters of the More than a Monologue conference several of us discussed at this site a few years ago [further information HERE]) “clearly stated and articulately defended… in a spirit of dialogue that is proper to an academic setting… [noting that] the strength of these teachings will be quite convincing, based as they are on revealed truth.”
For those of us who have ventured into discussing matters dealing with truth and falsehood in the academic arena, we know that there can be perils of doing so especially in the academic culture of today. But if we also claim to follow Christ, must we not be afraid about doing this? Christ acknowledged that he is the way, the truth, and life; yet, many well-intentioned folks, including a good number of members of Catholic and Jesuit university communities, deny His claim. Taking stock of legitimate academic freedom, this is an odd response especially for those engaged in a work that uses the name of the Society of Jesus. I base this contention on what the Society of Jesus is or what it is supposed to be. Many of the voices quoted in The Atlantic article appear to be ignorant of the nature and raison d’être of the Jesuit order, which its founder Saint Ignatius of Loyola presented in the following manner in the Formula of the Institute (the foundational document of the Society of Jesus):
Whoever desires to serve as a soldier of God beneath the banner of the cross in our Society, which we desire to be designated by the name of Jesus, and to serve the Lord alone and the Church, His spouse, under the Roman pontiff, the vicar of Christ on earth, should…keep what follows in mind. He is a member of a Society founded chiefly for this purpose: to strive especially for the defense and propagation of the faith and for the progress of souls in Christian life and doctrine.
The means for accomplishing this purpose are subsequently outlined in the Formula of the Institute. One of the specific apostolates mentioned to achieve the purpose of the Society of Jesus is education which may well include the development of Catholic legal theory. This is the context in which Jesuit education is supposed to operate; however, it is not mentioned once by any of those interviewed by Ms. Jones. As one who dedicated a large portion of his life to assisting in furthering the purpose of the Society of Jesus, I am deeply saddened by most of the views expressed in her essay. The interviewees quoted in Ms. Jones’s article aver a variety of competing and contradictory alternatives to the authentic purpose of the Jesuit order and the apostolates sponsored by it for attaining the specified goal. A couple of these dubious alternatives argue that distinctive quality of Jesuit education is the mantra of “social justice”.
Without further definition (none is offered), this term that presumably characterizes Jesuit institutions is vacuous. Can you think of any institution of higher education that makes the claim that it is for social injustice? Probably not. If social justice is to mean anything for Catholic educational institutions, it must be presented within the framework of the justice of Christ. For the Jesuit institution more is required than the simple assertion that it is for “social justice”. Yet for many on Jesuit campuses the mere utterance of the mantra is sufficient to maintain its bona fides. At this stage, another question emerges from some of the views expressed in The Atlantic article: is there are substantive distinction between being Catholic and being Jesuit essential to explaining the Jesuit “brand”?
In 1994 David J. O’Brien touched upon the distinction between Catholic and Jesuit in his Conversations on Jesuit Higher Education essay entitled “Jesuit, Si, Catholic… Not So Sure.” The distinction O’Brien examined is evident in the opinions of several of those persons interviewed for The Atlantic article. As one employee of a “Jesuit” school asserted, “We hide the word ‘Catholic’ from prospective students… We focus on the Jesuit piece rather than the Catholic piece.” While such an attitude is antithetical to the definition of what it means to be “Jesuit” as defined by the Formula of the Institute, there it is nonetheless. This misapprehension about what is constitutive of Jesuit education is apparently held by some charged with the governance of these schools that rely upon the name “Jesuit”. As one member of a board of trustees was quoted, “We’re more concerned with the Jesuit way than with Catholicism.” Strangely this contradicts the Formula of the Institute; moreover, it disregards the valuable insight of Avery Cardinal Dulles who, in describing the nature of Jesuit higher education, stated that the Jesuit element must be “an intensification” of its Catholic element.
Another perspective found in The Atlantic article contends that “it’s ultimately out of the university’s hands as to whether it retains its Catholic identity… it’s up to the Catholic Church.” While it is true that competent ecclesiastical authorities have, under the law of the Church and the documents of the Second Vatican Council, the authority to determine who can and who cannot use the moniker “Catholic,” it is not the Church who really imposes the nexus; it is an exercise of the authentic freedom of the school itself to decide whether it wishes to be a Catholic institution or not. While it may seem to be Catholic insofar as it has religious symbols like crosses and crucifixes on the campus, it is finally the decision of the institution to live and express its Catholicism or not in everything that it does. If it asserts that it is Catholic, then it must affirmatively demonstrate that this is so by living and proclaiming the Good News and through adhering to two thousand years of authentic Catholicism. To borrow from the title of the article from The Atlantic, the brand name may be there; however, whether it is the genuine article or a counterfeit knock-off is up to the institution’s fidelity to the prescriptions set down by Saint Ignatius. Truth in advertising is vital to the authenticity of the claim that a school is Jesuit. If I may borrow from the Formula of the Institute, whosoever desires to serve as a Jesuit institution should keep what follows in mind: that the Jesuit order was founded for this purpose, which is “to strive especially for the defense and propagation of the faith and for the progress of souls in Christian life and doctrine.” I fear that in today’s climate many students, faculty, and administrators who believe they are a part of Jesuit education would find it difficult to endorse this essence of what it means to be Jesuit.
Let me conclude today’s posting with this thought. I think that Autumn Jones has done a great service by publishing her article upon which I have commented here. Her essay can serve as a catalyst for folks who are supportive of and concerned about the status of Jesuit and Catholic higher education to reflect critically upon what is at stake so that the enterprise of Catholic higher education may flourish. For those who believe that Christ is the Lord and Savior of the human person, let us not be afraid to follow Him rather than the sirens of the present age who think and claim that they are a part of the enterprise molded by Ignatius but, in fact, are not. Christ engaged the world for the particular objective of human salvation, and this purpose became that of Ignatius of Loyola. May this end be unambiguously reflected in the lives and work of those who follow the Son day after day on the campuses that claim to be Jesuit and Catholic. This work is not one of imposing but of proposing the objective for which the Jesuit order was established.
Tuesday, December 30, 2014
As I mentioned in my last post of December 24, I am working my way through Jessie Child’s God’s Traitors: Terror and Faith in Elizabethan England. Yesterday, I came across a reference in the Child’s book to an interesting but ominous statute enacted by Parliament in 1585 [27 Eliz. c. 2] severely regulating—by means of prosecutions for high treason, the imposition of onerous fines, the legal device of praemunire, and other mechanisms—the presence and apostolic work of Jesuits and other Catholic clergy trained elsewhere in Europe, along with “such other like disobedient Persons,” for “stir[ring] up and mov[ing] sedition, rebellion, and open hostility” within Elizabeth’s realm. [the English of the statute has been modernized] A digital copy of this legislation is HERE: Download 27 Elizabeth c. 2. The title of this Act is duplicated in the subject line of this posting.
Upon reading the Elizabethan legislation dealing with Jesuits and other “papists”, I considered whether there may be parallels in which legislators and interest groups of today propose laws and regulations that have similar effects on the practice of the Catholic faith in the US and the other western democracies. This may be an item which those attending the Lumen Christi/Christian Law Professors Fellowship event that overlaps with the upcoming AALS conference being convened in our nation’s capital may wish to explore given the importance of libertas ecclesiae to many members of the mentioned gathering.
A major objective of the Elizabethan legislation was to compel the realm’s subjects to conform to the previous laws making the sovereign the supreme head of the church in England and to observe scrupulously other laws regulating religious belief and practices (practices including not only private devotion but also religious exercises in public life). Within the context of this goal, an underlying objective was to eradicate any element of “popery” involving any practice of the Catholic faith that would include the education of young persons. In reflecting upon the legal developments of the present age having an impact on any aspect of religious freedom (a topic frequently addressed by contributors to the Mirror of Justice), I think it vital to consider how the practice of Catholicism in the public square today, which includes the enterprise of education that employs the modifier “Catholic,” has been adversely affected by ongoing legal developments in the US and other democracies, e.g., what must be taught in Catholic schools of any level; what activities the faithful and their clergy can pursue in public life; what can be expressed from any pulpit that some may consider “hateful” and, therefore, prosecutable statements; the degree to which religious persons may engage in any aspect of public life (especially the right of free expression of ideas related to the common good) as urged by Catholic teaching.
The Elizabethan legislation gave several outs from prosecution for those who might otherwise be subjected to the statute’s enforcement. The first was to leave the jurisdiction “if the Winde Weather and Passage shall serve the same”. Thank goodness for the cooperation of the mercurial nature of the weather and tides! Another way to avoid prosecution and forfeiture of all possessions was to conform to the state religion where the temporal sovereign is the self-declared “supreme head”. But these “options” were as odious to English Catholics of the Elizabethan era as they would be to many of us today.
I would like to emphasize the portion of the Elizabethan statute that attempted to control education in such a fashion that only state-sanctioned education—which would of course undermine the competence of Catholic authorities and the presence of Catholic teaching—could be made available. An initial point about this element of the statute meriting attention is the will to control what is taught and what is forbidden to be taught. This was not simply a problem for Elizabethan times; it is of major concern today when Catholic institutions are pressured in some form or other to suppress the Catholic perspective and teachings or face the consequences that the regulators will decide. I can recall being present at faculty-appointments meetings where the suitability or unsuitability of candidates for teaching posts was discussed and where anyone “too Catholic” would likely be removed from further employment consideration. Another point worth considering here is what role, if any, do Catholic and Christian teachers of the law have in those matters dealing with the tack of curriculum development and the approaches to how substantive matters are to be taught? Clearly those of us who have taught law or continue to do so have many occasions to form intellectually and virtuously future lawyers, judges, legislators, regulators, and citizens so that laws concerning the authentic freedom of religion will not duplicate the grave harms present in the Elizabethan statute. Might we take a moment as we plan our instruction to consider the prophetic words of George Santayana: those who do not remember the past are condemned to repeat it?
Perhaps the words of Christopher Dawson, an Englishman and convert to Catholicism, might further inspire legal educators who consider themselves Catholic and Christian as they pursue their duty: “if Christians cannot assert their right to exist in the sphere of higher education [or any sphere, for that matter], they will eventually be pushed not only out of modern culture but out of physical existence.” Dawson further noted that his warning applied not only to those who live in totalitarian systems but also to those who live in the realms of the great western democracies.
As teachers of the law, we have an obligation to remind anyone with whom we come in contact about the dangers of the past that threatened libertas ecclesiae. If we do not, let us not look for scapegoats when we are condemned to repeat and experience these perils.
Wednesday, December 24, 2014
I apologize for my absence from this site for a bit, but some may find this truancy a blessing, but others may not. Nevertheless, I digress.
Tonight, we Catholics and many other Christians celebrate Christmas Eve. There was a time when Catholics in the United States celebrated this night with many of our fellow Americans and citizens and subjects around the world not only as a holiday but as a feast of the Church. But nowadays, this is less so. Christmas or the Holidays as Christmas is more popularly known these dys (which holidays, I am not sure: Lincoln’s Birthday? Ground Hog Day? Arbor Day? Etc.) seem[s] to be a celebration of something other than God’s gift of Himself for the salvation of humanity—God through His Son giving of Himself even unto death to rescue us from our sins in order that we might be with God forever. I was reminded of this loss after leaving the Dana Farber Cancer Institute yesterday following a long day of treatment and passing by the fashionable Chestnut Hill Mall near Boston where thousands were engaged in the frantic suit of buying gifts for family and friends. Mind you, buying gifts for loved ones is not the issue; but the fundamental reason of why we buy and exchange gifts in the first place is the issue. After all, there is something more to this celebration of Christmas (or the Holidays), is there not? Indeed, there is.
I was reminded of this today as my Jesuit Community buried another brother whose life and apostolic service to the Church and to the world were dedicated to this first principle of our faith and religious heritage just mentioned—remembering the reality of Christ. Yet, for many in the present age, this gift of Christ—God incarnate—is a strange notion or idea. But should it be? If this is a relevant and important question for us Christians, should it not also be, for us who subscribe to a project called Catholic legal theory, to address whether Catholic legal theory is an enterprise imbued with the celebration of Christmas and the gift that it is for not only the hereafter but also for our existence in this world and the universe that surrounds it? How do I answer my own question? Let me begin with this.
The other day I took up our colleague and friend’s, Michael Moreland’s, suggestion/recommendation about Jesse Child’s new book and read God’s Traitors, a remarkable book that deals with Catholicism in Elizabethan (the first of that name) times. After devouring this text, I was led to another book of a related topic, Faith and Treason (dealing with Catholicism in the subsequent reign of James I) published by Lady Antonia Fraser in 1996. As a consequence of reading and reflecting upon both texts, I came to realize how our sisters and brothers in Christ—and my own brothers in the Least Society of Jesus—had to navigate a perilous course in a country that was not only Christian but, at one time in its history, indisputably Catholic. I am not suggesting here that the United States or, for that matter the rest of the world, should be a theocracy or a nation with an established church—the Catholic Church in particular. But what I am arguing is that our present day political, economic, and social cultures have lost something toward which Catholic legal theorists can contribute a remedy for the common good—ah, yes, the common good—of each and every one of God’s creatures. But the contribution is more than an academic enterprise—it is a gift of one’s self to one’s friends whoever they may be. And this is a point that periodically emerges in the Childs and Fraser books.
Childs offers an insight about this when she discusses the anti-Catholic legislation of Elizabeth’s Parliaments and refers to a poem penned by a member of a recusant family that mentions a Ciceronian maxim: Honos alit artes—honor nourishes the arts. What if the law with which we of the Mirror of Justice deal with actually nourished and promoted honor—honor being the virtuous life that understands what is the essence of the human person and the role of public norms in guiding all human persons to embrace the search for the common good rather than the politically expedient or, worse, the political objectives of a self-referential elite whose will is strong but whose objective intellect capable of comprehending the intelligible reality that surrounds us is weak or nonexistent at all? I think this is a major role, a vocation, of the Catholic legal theorist not only for today but for every day. Moreover, it is a gift of self that is intended to be given time and again.
If my assumption has merit, might we of this Mirror of Justice community extend a gift for the rest of our fellow creatures in this season of holiday gift-giving—a gift of self and our intellects and labors, such as they are, that offers the hope and promise of Christ in concrete fashion so that, if I may borrow from Lady Fraser’s conclusion, we become a people whose motives are noble and whose actions are upright. In particular, may this gift of one’s self provide the environment for the making of and the living by laws that reflect lives of virtue, and serve as models of human existence that merit duplication by those whom we encounter in this world as we people of God prepare for the next.
A blessed Christmas to you all!
Thursday, December 4, 2014
Media outlets have once again focused on the wave of sexual assault taking place on U.S. college and university campuses. The stories about the University of Virginia’s recent experience are illustrative of a national phenomenon. Of course the law has, through the Title IX provisions overseen by the Department of Education, been involved in the process. But is the fundamental purpose of these laws—to protect the young—really understood by all of those entrusted with the law’s execution?
Recently, I have been discussing these matters with Jesuit confreres who are on the respective campus committees of their schools that are attempting to assist these institutions in compliance with the Title IX provisions dealing with sexual assault. From discussions with these priests and friends, I think it safe to say that most schools are concerned about the need to comply with the civil laws. However, I question whether these committees in their entirety are looking at the root problems and the convergence of these problems that lead to campus climates where a combination of factors, not addressed by some interpretations of the law and therefore not addressed by the school committees, lead to the “perfect storms” of rampant sexual misconduct that bring great harm to many of our young people.
A friend of many of us here at the Mirror of Justice John Garvey, who is president of The Catholic University of America, has acknowledged that one of the underlying problems of these perfect storms is having young men and women live together in campus residence halls where their common life leads to sharing more than simply a roof overhead. Other elements of the perfect storms begin to enter the forecast, and these include: permissive attitudes about alcohol and other drugs on campus and, so-called, peer education programs that promote rather than deter sexual promiscuity. The forecast gets amplified by current trends to make toilet and shower facilities “gender neutral” so as to assuage the feelings of those students who “feel uncomfortable” with sex/gender assigned bathroom facilities. Another factor needs to be considered here: there are faculty and staff who find the sexual desires of students reflective of their own life choices. Consequently, some of these staff and faculty would not want to see their educational institutions make policy decisions pertaining to student housing and student life that contravene their own life-style choices.
All of these factors lead to the perfect storms of sexual assault that currently exist on American campuses and will likely continue to exist until the fundamental purposes of the moral law and the civil law are viewed in the light of protecting our young people from living and other institutional circumstances that are dangerous to their health and wellbeing.
I know for a fact that many of my colleagues in the academy will regard my perspective as old-fashioned and not with the times; however, my retort is that in spite of being old-fashioned and not with the times the principles that I would propose for student life—including separate housing for men and women, intolerance of on-campus alcohol and drug abuse, and a cessation of freshman orientation programs that teach our young on the intricacies of how to have “safe sex”—should have a noticeable and remedial impact on the campus culture of the present age that sustain the perfect storms bringing havoc to so many college students today. Trying to comply with laws in ways that avoid dealing with the root problems that lead to and sustain the perfect storms is not the way to go about protecting those entrusted to our care.
Monday, December 1, 2014
Today, the first of December, is a special day in the liturgical calendar of the Society of Jesus—the religious institute to which I belong. It is the feast of the martyrs Saints Edmund Campion, Robert Southwell, and companions. Of course the English and Welsh Church offered up a good number of members of other institutes, the secular priesthood, and the laity who would not compromise on their Catholic faith but, by the same token, did not betray their loyalty as subjects of the temporal realm. In spite of what the temporal powers demanded of them, they simultaneously remained true to the faith and their sovereign.
It could have been Campion and Southwell and their companions that Cardinal George had in mind when he recently figuratively (and, perhaps, literally) stated that he would likely die in his bed; his successor in prison; and the latter’s successor a martyr for doing what Saint Paul in the letter to Titus reminds all Christians to be their duty: to encourage others in sound doctrine and to refute those who oppose it. [Campion and some of his companions were teachers, and they understood the value of authentic academic freedom to search for and present in public fashion the truth of God.] While such talk may be dismissed as hyperbole in the present age, is it?
We do not have to look far today to see that there are still martyrs, usually folk from ordinary walks of life, who are dying for the Catholic faith and for no other reason. This has been the history of the Church since its beginning; the tradition continues because people like Campion and his fellow martyred Jesuits understood well that they joined the enterprise of the Society of Jesus for one purpose alone: to strive especially for the defense and propagation of the faith and the progress of souls in Christian life and doctrine.
This is evident from reading Campion’s apologia which Father Campion submitted to Queen Elizabeth I’s Privy Council after his capture and before his execution. [The apologia (oft referred to as “Campion’s Brag”) is HERE] His words do not betray any disloyalty to his sovereign, but they confirm the sincerity and profundity of his faith in Christ and His holy Church. The so-called Brag is worth studying carefully, but these words stand out for me and, perhaps, others:
…The expense is reckoned, the enterprise is begun; it is of God, it cannot be withstood. So the faith was planted: so it must be restored…
Saints Edmund Campion, Robert Southwell, and companions: pray for us!
Friday, November 7, 2014
Many of the Mirror of Justice community, amongst others, have been following the work of and reports about the 2014 Synod on the Family. While the pace of the Synod’s work and observations about the Synod may let up a bit over the coming year, it won’t disappear as the work of the Synod will continue. In addition, the Philadelphia Archdiocese’s World Meeting of Families scheduled for next year will or should intensify the labors of the Synod.
I was surprised that there was little if any public discussion about the 1983 Charter of the Rights of the Family in the 2014 Synod. From my perspective, the Charter, while a document from the past, is surely related to the purpose of the Synod on the family. The relevance and significance of the Charter to the work of the Synod are critical. Yet, not much, if any, mention and discussion of this important document occurred during the Synod. Thus, this posting is designed to alert the members of the Mirror of Justice community to the role the Charter should have in the continuing work of the Synod.
First of all, a few general remarks about the 2014 Synod are in order. I share with many the view that texts, even ambiguously drafted ones, are important because the meaning of words and the ideas they represent are significant. We lawyers and others interested in the law and (Catholic) legal theory should agree with this point. Hence, the documents that have been generated by and that will be further produced by the Synod are critical to the legal, political, social, economic, and cultural issues concerning marriage and family life.
In addition, when documents are drafted in one language, it is imperative that their translation into other languages be faithful to the original text, the intent of that text, and the objectives of that text. While my Italian language skills are imperfect, I think my command of that language is sufficient to state here that some of the English translations of various documents of 2014 Synod were flawed and thus misrepresented the gist of the original documents. I hope that the misrepresentations of the past caused by faulty translations not be repeated in the future work of the Synod for the texts that it will produce cannot afford mistranslations especially when the critical meaning of the original documents is at stake.
Second, I return to the important role of the 1983 Charter on the work of the Synod on the Family. The three-decades old deliberations behind and the preparation of the Charter were and remain significant. While the Charter was completed and promulgated a generation ago, its relevance to the present age and its concerns about the family have not been altered by the passage of time. So what does the Charter say? For those interested, its full text is HERE. For the convenience of Mirror of Justice contributors and readers, I will present some of its salient points here that are worth pondering as the work of the Synod continues.
The first point is that this document was produced by the Universal Church, that it, it is the work of the Holy See, the 1980 Synod of Bishops, and the bishops’ conferences around the world. Next, it was not prepared solely for the Church and her members; it is also addressed to all States, international organizations, institutions, and persons in order “to promote respect” for the rights of the family “and to secure their effective recognition...” In short, the Charter was prepared for all people of good will.
A second point about the text is its definition of family as being based on the institution of marriage which is “that intimate union of life in complementarity between a man and a woman which is constituted in the freely contracted and publicly expressed indissoluble bond of matrimony and is open to the transmission of life.”
A third point is the Charter’s accord with international documents such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights in the contexts of their definitions of marriage and the family—the basic cell or unit of society. The Charter further declares that as a natural society, the family pre-exists the State and all other communities and possesses rights that are inherent and inalienable.
A further point of concordance with international documents is the Charter’s reminder that States and international organizations have the affirmative responsibility of protecting the family through political, economic, social, and juridical measures.
The twelve substantive articles of the Charter elaborate upon its preambular principles I have just presented. These articles, moreover, are also in harmony with parallel principles found in international juridical and declaratory texts. However, one of these principles needs emphasis here, and that is that there is a natural complementarity that exists between man and woman that is essential to the relationship of spouses and the spouses’ dignity and rights. It appears that some of the participants at the 2014 overlooked this vital tenet; but it cannot be neglected without also ignoring the comprehendible reality of human nature.
A second principle from the substantive articles follows, and it is one that is frequently absent from many contemporary discussions or considerations of authentic human rights. This principle is the clear statement that human life is non-negotiable and must be respected and protected, absolutely, from the moment of conception onward. In this context, the Charter anticipates those who wish to make abortion access a “human right” by its stating that intentional abortion “is a direct violation of the fundamental right to life of the human being.”
As I have previously mentioned, the Charter deserves our careful reading and appreciation. Equally important is that the Charter demands the careful understanding and appreciation of the participants of the ongoing Synod on the Family. In its entirety, the Charter is also a pastoral document which enables Catholics and all people of good will to ensure the protection of the legitimate rights and responsibilities of families and each of their members.
As a number of folks have been asking me recently how I am doing on the health front, allow me to end today’s posting with this brief personal note containg some general information that is intended for the many wonderful people who have been praying for me. By the way, your prayers are deeply appreciated! I am now in my tenth chemotherapy; the first nine (including one clinical trial) have all ended in failure for one reason or another. The current therapy does not seem to be going well, but the doctors and I have agreed that a few more cycles are in order to ascertain whether I am receiving any benefit from this cocktail or not. Furthermore, another brain MRI done previously this week indicates that the lesion detected in my brain earlier this summer has grown considerably since its first detection; moreover, it appears that blood vessels in the vicinity of the lesion have also become enlarged and may be supplying the lesion with oxygen and nutrition that should be going elsewhere. I will have some more MRI work done this coming week along with another lumbar puncture to assess these developments in my central nervous system and to determine whether any cancerous B cells are present in my spinal fluid or not. These B cells have sometimes been detected in past lumbar punctures, but other punctures have been negative. Again, the point of this personal note is to thank all of you for your prayers for they are and remain vital to my wellbeing notwithstanding the challenges that I presently face. I can assure you of my own prayers for you in return. Let us also pray for our Church and for the ongoing work of the Synod.
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.