November 05, 2013
Review of "Reading Law" by Justice Scalia and Bryan Garner
Commonweal has posted my review of Reading Law: The Interpretation of Legal Texts, by Justice Antonin Scalia and Bryan A. Garner. The piece is behind a paywall, I'm afraid. The review reflects on the nature and value of the canons of textual interpretation--the book's primary focus. Indeed, it might have been better if the canons had been the book's exclusive focus. The sections devoted to constitutional theory are not the best parts of the book. The review also discusses the sense in which--notwithstanding the skeptical criticism that has been leveled at them throughout the realist period and thereafter--the canons create something like a linguistic tradition for lawyers. Here is a fragment:
Some of the most interesting studies of law approach it as a distinctive tradition. And like many traditions, law has its own language which informs and suffuses the thought of those who think and speak through it. If the language of the law is not preserved—if it decays through lack of use, disregard, or skeptical dismissal as just so much transcendental nonsense—then the tradition of law dies as well . . . .The core aim of the book is to retrieve and systematize one of the law’s most important and enduring linguistic traditions—the canons of textual interpretation. The canons are not rules as much as rules-of-thumb, presumptions about the meaning of legal texts. Skill in legal interpretation involves the capacity to discern when a canon should, and should not, yield to countervailing considerations . . . .
Reading Law is, as the authors put it, a normative treatise that introduces the language of law to an audience for whom it is largely alien while offering a refresher course for attorneys and judges who have forgotten (or who never really learned) their canons. Like all treatises, the point is not to read through from front to back and I cannot recommend marching through the book’s 414 pages (that’s before the appendices). No one who isn’t looking for it will much miss the “Scope-of-Subparts Canon” explaining the relationship of subparts to parts, or the “Punctuation Canon,” which warns against “hostility to punctuation” and whose examples include various obscure nineteenth-century precedents involving the use of semicolons. But lawyers faced with interpretive problems will find in Reading Law a pathway to a set of linguistic precepts that structure and enrich the tradition of American law. That is a worthy contribution.
August 04, 2013
"Critiques of the New Natural Law Theory"
The most recent issue of the National Catholic Bioethics Quarterly (Spring 2013) is devoted to critiques of the new natural law theory (NNLT). The issue contains articles by Father Kevin Flannery SJ, Steven Long, and John Goyette and shorter essays by Fulvio Di Blasi, Matthew O'Brien, Michael Pakaluk, and Edward Feser. Many of the pieces focus on the NNLT's understanding of intention, an issue that has been featured in earlier discussions on Mirror of Justice of issues such as craniotomy and the treatment of ectopic pregnancies.
October 10, 2011
"The World as it Could Be: Catholic Social Thought for a New Generation"
My friend, Fr. Thomas Williams, has a brand-new book out on Catholic Social Thought, called "The World as it Could Be." Here's one blurb:
Providing insight and into the world's most pressing concerns--those of human rights, human dignity, and world peace--bestselling author and priest Thomas D. Williams adds his reassuring voice to the panoply of issues that call to question the meaning of faith. One of the most trusted and dynamic voices from the Catholic community and the official Vatican analyst for CBS News, Father Williams helps parishioners step back from today's controversies and understand Catholic teachings in a deeper way. Addressing the most heated debates ripped from national headlines and fervently discussed between Catholics--from abortion and capital punishment to the economy--Father Williams draws upon his years of teaching in this detailed yet accessible analysis of the moral dilemmas and political challenges that Catholics face every day. Examining these moral conflicts, and the often opposing forces of individual rights versus those of the community, Father Williams speaks to orthodox Catholics and non-Catholic observers alike in this examination of the Catholic faith, it's influence around the world, and what it teaches millions of followers about human rights and a better world.
March 08, 2011
The "Tournament of Novels" at First Things
My own mind tends to focus more on other tournaments during March but . . . the good folks at First Things are running their "Tournament of Novels" over at the First Thoughts blog. Head over and vote (early and often) for Cormac McCarthy's Blood Meridian (and four others of your choice). My four, for what it's worth, were The Brothers Karamazov, The First Circle, Silence, and The Power and the Glory.
March 07, 2010
A justified cavil from a readerAn MoJ reader has written to express agreement with what I posted about the Kennedys, but to "cavil" as he put it, on one point. I said that JFK did not "even try" to impose his religion on himself. The reader points out that none of us can say that definitively, since no one can read another's heart. He's right. I should have said that nothing in the historical record demonstrates efforts by Kennedy before or during his presidency to stop committing adultery---on moral grounds, at least. There was a point shortly before his election as President when he lamented to a confidant that it would be impossible, as a practical matter, to continue his womanizing while in the White House. Very quickly after his inauguration, however, he discovered ways to keep it going. There is much in the record to show that after acts of adultery he immediately began planning future such acts and making the arrangements necessary to pull them off without being exposed and damaged politically.
March 01, 2010
John Allen and Globalization
This is the seventh installment of our examination of John Allen’s book, The Future Church.This time, we consider with Allen the Church in relation to globalization.
Allen begins his discussion illustrating the Janus-faced leviathan of globalization with descriptions of two Indian teen-aged girls, one wealthy and the other poor. It is a fact that while the past few decades have brought wealth and prosperity to many formerly impoverished countries, there remains a global underclass that is poor, famine stricken, disease-ridden, and oppressed. Allen notes that “1.2 billion people still live on less that $1 a day. Half of the planet lives on less than $2 a day.” Allen suggests that it has become increasingly evident that the world trade regime cannot be relied upon to provide a solution to the problems of global poverty and social injustice.
He wonders whether Catholics can make any difference to a world that seems at times out of control. Looking to Fr. John Coleman’s 2005 collection of essays, Globalization and Catholic Social Thought, he looks for structure in the list of eight core Catholic social principles that Coleman develops: (1) Human rights rooted in the theological claim that the human person bears the image of God (imagio dei); (2) The social nature of the human is intrinsic to human existence; (3) Individual rights must be balanced with the common good; (4) Solidarity, or a concern for others that goes beyond what justice requires; (5) The preferential option for the poor, or giving the most attention to the most vulnerable; (6) Subsidiarity, the opposition to excessive centralization and bureaucratization, and the unjustified intrusion of the State; (7) Catholic theories of justice in three modes: communicative, distributive, and social; and (8) Integral humanism, which reflects the Catholic concern for the whole person—the belief that human beings flourish both in spirit and materially.
Allen applies these principles to six “fronts” in the globalization debates.
(1) The gap between rich and poor. Allen discusses loan forgiveness and, in particular, the Millennium Project, in this section.
(2) Global conflict and the Arms Race. Allen suggests that global arms trade increases the number of civil wars around the world.
(3) Human Trafficking. It is estimated that up to two million people (80 percent women) are victims of trafficking each years.
(4) Corruption. According to South Korean democracy advocate, Jong-sung You , Protestant populations are less tolerant of corruption than Catholic populations. This is particularly relevant to African nations where corruption is widespread. Developed nations might help by boycotting corrupt regimes. Catholics can be instrumental in encouraging governments to reject corruption.
(5) Migrants and Refugees. This topic was discussed in a previous chapter.
(6) The Internet. Internet usage continues to grow, and wired connectivity is bringing telecommunication to remote regions for the first time. Yet experts also warn of a growing digital divide. Allen notes that “only 3.6 percent of Africans use the internet, a thin elite atop a vast ‘unplugged’ majority.” (279)
What it Means?
Allen offers some predictions with varying degrees of confidence.
1. Tension between the Local and Universal. Struggles to maintain cultural identity. In many cases, the Church can contribute to a recovery of local tradition, while also maintaining a commitment to the universality of its message.
2. More favorable attitude toward the United Nations. It is likely that the Catholic Church’s anti-poverty, peace and sustainable development goals will be furthered through traditional UN structures.
3. Growing tensions with the American-style capitalism. Here, Allen quotes Pope Benedict XVI, “The conviction that the economy must be autonomous, that it must be shielded from ‘influences’ of a moral character, has led man to abuse the economic process in a thoroughly destructive way.”
4. “Horizontal Catholicism” is the term that Allen uses to describe the growing influence on the Church’s public role of non-hierarchical and decentralized organizations and affiliations. Although he does not specifically mention the importance of social networks and viral distributions, the connection seems clear.
1. A Nuncio to Standard and Poor’s. Allen correctly argues that political theology will be of greater concern as the Church struggles to deal with the emerging political forms and actors of the new globalism. Contemporary transnational corporations, influenced by global capital flows and still nascent governmental structures (like the WTO), are not yet well understood by Catholic social thought. Allen suggests, following Coleman, that the market itself might provide some structures for self-regulation. He looks to Standard and Poor’s bond ratings as an example of a “global policy network” that “does a pretty good job of regulating the bond market.” This was obviously written before the collapse of the bond market and the finger-pointing at rating agencies that became a “part of the problem.”
2. Financial Accountability in the Church. More modern accounting and auditing of Church finances is badly needed, according to Allen.
3. Multi-National Corporation theology. Allen suggests the need for a theological understanding of the multi-national corporation that leaves behind the Marxist/capitalist dialectic polemics. The new MNCs are new to human experience. They are vastly powerful aggregations of wealth and influence, responsive to forces that are not well understood (as the global financial crisis indicates). And, they are growing in political influence, gaining power through political processes as well as markets. Traditional legal analysis of corporate speech may miss the subtly of the threats posed by MNCs (as Rick points out in his recent post). Allen suggests that a careful, theologically informed, consideration of the nature of the MNC is urgently needed.
Dynamic Diplomacy and Disinvestment. Catholicism is the majority or near majority religion in many nations, and notably in the African Great Lakes region. Catholics can exercise political and economic influence, either through formal structures or decentralized, informal associations and market behavior. This could lead to more dynamic interaction between the Church and governments in areas such as diplomacy, and in markets through selective investments.
Avignon in Africa. Might a pope someday relocate temporarily in Africa? It is possible, Allen says.
I think Allen is correct to point out both the newness and potential dangers of the new globalization. This new phase of human development must be met with caution and thoughtful investigation of the current situation. The way ahead must be rooted in a proper understanding of the human person—one which moves beyond the nineteenth century anthropologies that gave rise to Marxism and neo-classical market capitalism. And we need to better understand the pathologies of globalization so that we might respond to them. This is an area where Catholics can contribute their efforts, drawing from the heart of their religious traditions to explore and speak to this new world. Some questions;
1. Do we need to give greater attention to the destabilizing influences of globalization on families, both in developing and developed nations?
2. Is the "autonomy" that Selya Benhabib has described as the emerging "cosmopolitan norm" ultimately incompatible with a Catholic conception of the person? (This seems likely to me). Will that ultimately create conflicts in cooperating with the United Nations?
3. What sorts of structural changes are needed in the global trade and finance regimes to promote social justice? And, what resources do Catholics have to bring about these changes?