Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Tuesday, December 13, 2016

On Bach's "Lutheran Mass"

Here's a fun article on J.S. Bach's magnificent Mass in B minor, one of the magisterial and final pinnacles of his oeuvre, and yet in some ways puzzling. What, after all, was a faithful Lutheran doing setting an entire Roman Catholic Mass--a Missa Tota?

And for performances, stay away from the trendy and the faux HIP (Historically Informed Performances). Someday I will write a rancorous essay entitled, "Historically Informed Performances: The Living (and oh so HIP) Originalism of Classical Music."

Instead savor the magnificently moody and measured performances of Furtwängler and Scherchen. Or, if you can't get ahold of those, this version conducted by Herbert von Karajan will do.



Here is an enjoyable exchange of comments over at our Center site on this post that I wanted to share with readers here, reflecting a range of jurisprudential and musicological views--the excellent Frank Cranmer of Law and Religion UK, my colleague Mark Movsesian, and then a response from me.


On historically-informed performance, I’m afraid we must disagree.

All those incredibly s-l-o-w, turgid performances of Handel and Bach, muddy, Romantic English organs (maybe they built better ones in the States), oversized symphony orchestras producing completely the wrong balance – we’ve been there and I, for one, don’t want to go back.


Originalism makes less sense in music than in law, I’d agree, because law involves power. And sometimes a contemporary take on early music works, like Respighi’s Birds and Ancient Airs and Dances. But as a presumption, I’d go with the clarity of Originalism in music on aesthetic grounds, over gushy late-Romantic reinterpretations. Where’s your sense of tradition?


Frank, a pleasure to see you here. It seems that both you and my comrade in arms are as one on this matter. But he has a very Puritanical streak in matters of art (and food, I should add) that runs deeply against my grain. And I cannot agree that the ascetic and rather precious technicality of HIP performances is really at all close to what Bach intended. So I suppose I regard myself as the true traditionalist. It’s like the difference between originalist theory today and the actual jurisprudence of Joseph Story or John Marshall. Very few real similarities.

Oh well. De gustibus non est disputandum–in law and in art.

December 13, 2016 in DeGirolami, Marc | Permalink

Friday, December 2, 2016

The High Church Temptation

Among the many interesting features of church-state political and social relations probed by Anthony Trollope in his novels are the various temptations to which adherents of the several Anglican groupings in mid-19th century England might become prone. The following passage from "Barchester Towers," which tells of the early scholarly and ecclesiastical career of one Reverend Francis Arabin (now rector of a small parish called St. Ewald's), describes very effectively one of the chief temptations for High Churchmen...eventual collapse into Roman Catholicism. Note, in particular, Trollope's reference to Sir John Henry Newman (and his favorable comments about schismatics!).

And what of Low Church temptations? In what might those consist? That is for another post. Here is Trollope on the Rev. Arabin (from Chapter XX):

He had been a religious lad before he left school. That is, he had addicted himself to a party in religion, and having done so had received that benefit which most men do who become partisans in such a cause. We are much too apt to look at schism in our church as an unmitigated evil. Moderate schism, if there may be such a thing, at any rate calls attention to subject, draws in supporters who would otherwise have been inattentive to the matter, and teaches men to think upon religion. How great an amount of good of this description has followed that movement in the Church of England which commenced with the publication of Froude's Remains!

As a young boy Arabin took up the cudgels on the side of the Tractarians, and at Oxford he sat for a while at the feet of the great Newman. To this cause he lent all his faculties. For it he concocted verses, for it he made speeches, for it he scintillated the brightest sparks of his quiet wit. For it he ate and drank and dressed, and had his being. In due process of time he took his degree, and wrote himself B.A., but he did not do so with any remarkable amount of academical éclat. He had occupied himself too much with high church matters, and the polemics, politics, and outward demonstrations usually concurrent with high churchmanship, to devote himself with sufficient vigour to the acquisition of a double first. He was not a double first, nor even a first class man; but he revenged himself on the university by putting firsts and double firsts out of fashion for the year, and laughing down a species of pedantry which at the age of twenty-three leaves no room in a man's mind for graver subjects than conic sections and Greek accents.

Greek accents, however, and conic sections were esteemed necessaries at Balliol, and there was no admittance there for Mr. Arabin within the lists of its fellows. Lazarus, however, the richest and most comfortable abode of Oxford dons, opened its bosom to the young champion of a church militant. Mr. Arabin was ordained, and became a fellow soon after taking his degree, and shortly after that was chosen professor of poetry.

And now came the moment of his great danger. After many mental struggles, and an agony of doubt which may well be surmised, the great prophet of the Tractarians confessed himself a Roman Catholic. Mr. Newman left the Church of England, and with him carried many a waverer. He did not carry off Mr. Arabin, but the escape which that gentleman had was a very narrow one. He left Oxford for a while that he might meditate in complete peace on the step which appeared to him to be all but unavoidable, and shut himself up in a little village on the sea-shore of one of our remotest counties, that he might learn by communing with his own soul whether or no he could with a safe conscience remain within the pale of his mother church.

Things would have gone badly with him there had he been left entirely to himself. Every thing was against him: all his worldly interests required him to remain a Protestant; and he looked on his worldly interests as a legion of foes, to get the better of whom was a point of extremest honour. In his then state of ecstatic agony such a conquest would have cost him little; he could easily have thrown away all his livelihood; but it cost him much to get over the idea that by choosing the Church of England he should be open in his own mind to the charge that he had been led to such a choice by unworthy motives. Then his heart was against him: he loved with a strong and eager love the man who had hitherto been his guide, and yearned to follow his footsteps. His tastes were against him: the ceremonies and pomps of the Church of Rome, their august feasts and solemn fasts, invited his imagination and pleased his eye. His flesh was against him: how great an aid would it be to a poor, weak, wavering man to be constrained to high moral duties, self-denial, obedience, and chastity by laws which were certain in their enactments, and not to be broken without loud, palpable, unmistakable sin! Then his faith was against him: he required to believe so much; panted so eagerly to give signs of his belief; deemed it so insufficient to wash himself simply in the waters of Jordan; that some great deed, such as that of forsaking everything for a true church, had for him allurements almost past withstanding.

December 2, 2016 in DeGirolami, Marc | Permalink

Wednesday, November 23, 2016

Out With the Old, In With the New!

I have said before that if you are interested in law and religion, you must read Anthony Trollope. I can't think of many authors who are more intimately concerned with the quotidian working out of church-state arrangements. As Hawthorne once put it, "Trollope's novels are solid, substantial, written on the strength of beef and through the inspiration of ale and just as real as if some giant had hewn a great lump out of the earth and put it under a glass case, with all its inhabitants going about their daily business and not suspecting they were being made a show of."

Trollope's Barsetshire Novels in particular are concerned with political and cultural change, or "evolution," within the Anglican Church in English nineteenth century life. Here is a wonderful passage from "Barchester Towers" in which a "new man" representative of the progressively liberalizing episcopacy (Mr. Slope) informs an "old man" (Mr. Harding) about the changes coming to the Church and to English life more broadly:

"You must be aware, Mr. Harding, that things are a good deal changed in Barchester," said Mr. Slope.

Mr. Harding said that he was aware of it. "And not only in Barchester, Mr. Harding, but in the world at large. It is not only in Barchester that a new man is carrying out new measures and casting away the useless rubbish of past centuries. The same thing is going on throughout the country. Work is now required from every man who receives wages; and they that have to superintend the doing of work, and the paying of wages, are bound to see that this rule is carried out. New men, Mr. Harding, are now needed, and are now forthcoming in the church, as in other professions."

All this was wormwood to our old friend [Mr. Harding]. He had never rated very high his own abilities or activity; but all the feelings of his heart were with the old clergy, and any antipathies of which his heart was susceptible, were directed against those new, busy, uncharitable, self-lauding men, of which Mr. Slope was so good an example....

Mr. Harding was not a happy man as he walked down the palace pathway, and stepped out into the close. His preferment and pleasant house were a second time gone from him; but that he could put up with. He had been schooled and insulted by a man young enough to be his son; but that he could put up with. He could even draw from the very injuries, which had been inflicted on him, some of that consolation, which we may believe martyrs often receive from the injustice of their own sufferings, and which is generally proportioned in its strength to the extent of cruelty with which martyrs are treated....But the venom of [Mr. Slope's] harangue had worked into his blood.

"New men are carrying out new measures, and are carting away the useless rubbish of past centuries!" What cruel words these had been; and how often are they now used with the heartless cruelty of a Slope! A man is sufficiently condemned if it can only be shown that either in politics or religion he does not belong to some new school established within the last score of years. He may then regard himself as rubbish and expect to be carted away. A man is nothing now unless he has within himself a full appreciation of the new era; an era in which it would seem that neither honesty nor truth is very desirable, but in which success is the only touchstone of merit. We must laugh at every thing that is established. Let the joke be ever so bad, ever so untrue to the real principles of joking; nevertheless we must laugh--or else beware the cart. We must talk, think, and live up to the spirit of the times, and write up to it too, if that cacoethes be upon us, or else we are naught. New men and new measures, long credit and few scruples, great success or wonderful ruin, such are now the tastes of Englishmen who know how to live.

November 23, 2016 in DeGirolami, Marc | Permalink

Tuesday, November 15, 2016

Liberal Anglicanism Emerges: Religion, Politics, and the Academy (Trollope's View in "Barchester Towers")

Here's an interesting description by the great novelist, Anthony Trollope, of the changing profile of the Anglican churchman (by name, in this case, Dr. Proudie) in chapter III of his wonderful novel, "Barchester Towers," the second of The Barsetshire Novels--and in specific the causes and effects of Anglican liberalization in early nineteenth-century England (when parallel, though not of course identical, liberalizations were occurring to Anglicanism in the United States--see, e.g., Virginia). I found especially interesting the admixture of religion, politics, and academics in the creation of this liberal Anglicanism:

Some few years since, even within the memory of many who are not yet willing to call themselves old, a liberal clergyman was a person not frequently to be met. Sydney Smith was such, and was looked on as little better than an infidel; a few others also might be named, but they were 'rarae aves,' and were regarded with doubt and distrust by their brethren. No man was so surely a tory as a country rector--nowhere were the powers that be so cherished as at Oxford.

When, however, Dr. Watley [MOD: the Irish social reformer] was made an archbishop, and Dr. Hampden some years after regius professor [MOD: Renn Hampden, who famously squabbled with John Henry Newman, and eventually became the Regius Professor of Divinity at Oxford], many wise divines saw that a change was taking place in men's minds, and that more liberal ideas would henceforward be suitable to the priests as well as to the laity. Clergymen would be heard of who ceased to anathematise papists on the one hand, or vilify dissenters on the other. It appeared clear that high church principles, as they were called, were no longer to be surest claims to promotion with at any rate one section of statesmen, and Dr. Proudie was one among those who early in life adapted himself to the views held by the whigs on most theological and religious subjects. He bore with the idolatry of Rome, tolerated even the infidelity of Socinianism, and was hand and glove with the Presbyterian synods of Scotland and Ulster. 

Such a man at such time was found to be useful, and Dr. Proudie's name began to appear in the newspapers. He was made one of a commission who went over to Ireland to arrange matters preparative to the working of the national board; he became honorary secretary to another commission nominated to inquire into the revenues of cathedral chapters; and had something to do with both the regium donum and the Maynooth grant.

It must not on this account be taken as proved that Dr. Proudie was a man of great mental powers, or even of much capacity for business, for such qualities had not been required in him. In the arrangement of those church reforms with which he was connected, the ideas and original conception of the work to be done were generally furnished by the liberal statesmen of the day, and the labor of the details was borne by officials of lower rank. It was, however, thought expedient that the name of some clergyman should appear in such matters, and as Dr. Proudie had become known as a tolerating divine, great use of this sort was made of his name. If he did not do much active good, he never did any harm; he was amenable to those who were really in authority, and at the sittings of the various boards to which he belonged maintained a kind of dignity which had its value.

November 15, 2016 in DeGirolami, Marc | Permalink

Tuesday, November 8, 2016

O tempora, o mores!

According to Sallust, on this date in 63 BC, Cicero delivered his first oration to the Senate against Lucius Sergius Catilina (Catiline), the corrupt Roman politician who was up for election and who, in Cicero's view, was in large measure responsible for the degradation and ultimate destruction of the republic. 

...iam intelleges multo me vigilare acrius ad salutem quam te ad perniciem rei publicae

November 8, 2016 in DeGirolami, Marc | Permalink

Friday, October 28, 2016

Dreisbach, "Reading the Bible With the Founding Fathers"

I’m very pleased to give this notice of Professor Daniel L. Dreisbach’s new book, Reading the Bible With the Founding Dreisbach bookFathers, which will be published by Oxford University Press in December. Professor Dreisbach is one of the most important scholars of religion in the founding generation. His earlier book, Thomas Jefferson and the Wall of Separation Between Church and State, as well as his edited volumes, Religion and Politics in the Early Republic: Jasper Adams and the Church-State Debate, and The Forgotten Founders on Religion and Public Life, offer vital and erudite insight about the relationship of church and state in the early republic. This volume looks to be essential reading for anyone interested in this area. Here's the description.

No book was more accessible or familiar to the American founders than the Bible, and no book was more frequently alluded to or quoted from in the political discourse of the age. How and for what purposes did the founding generation use the Bible? How did the Bible influence their political culture?

Shedding new light on some of the most familiar rhetoric of the founding era, Daniel Dreisbach analyzes the founders’ diverse use of scripture, ranging from the literary to the theological. He shows that they looked to the Bible for insights on human nature, civic virtue, political authority, and the rights and duties of citizens, as well as for political and legal models to emulate. They quoted scripture to authorize civil resistance, to invoke divine blessings for righteous nations, and to provide the language of liberty that would be appropriated by patriotic Americans.

Reading the Bible with the Founding Fathers broaches the perennial question of whether the American founding was, to some extent, informed by religious-specifically Christian-ideas. In the sense that the founding generation were members of a biblically literate society that placed the Bible at the center of culture and discourse, the answer to that question is clearly “yes.” Ignoring the Bible’s influence on the founders, Dreisbach warns, produces a distorted image of the American political experiment, and of the concept of self-government on which America is built.

October 28, 2016 in DeGirolami, Marc | Permalink

Thursday, October 27, 2016

Michael McConnell, "Tradition and the Constitution"

Rick, Michael, and Kevin have written several fine posts about the Tradition Project conference that our Center for Law and Religion hosted last weekend (thank you also to Erika for her very interesting post). Here is a story with some further details of the gathering, which collects their and other reflections on the conference.

And here is Professor Michael McConnell's lecture, "Tradition and the Constitution":



October 27, 2016 in DeGirolami, Marc | Permalink

Monday, October 24, 2016

A Thought For Michael on Tradition and Reason

Thanks to Rick and Michael for their posts about our gathering this past weekend. It is certainly my and Mark's hope that the conference will produce fruitful reflection about the various ways in which tradition can be conceptualized and about how it interacts with law and politics.

Just one brief thought in reaction to Michael's fine post about tradition and reason. I agree with him that the pitting of reason and tradition against one another is a mistake, but a very common one. The more difficult question is how best to describe the relationship between them. Here's something I wrote on this question a while back (in preparation for the conference, and for just the question Michael poses), but which is much more in the nature of a speculation than an answer: 

If I dress with a coat and tie every time I teach a class, that is not enough for my sartorial selections to be traditional. It is still not enough if it can be shown empirically that others before and after me have made the same choices. What makes the choice traditional is the social or cultural meaning of my dressing this way. The choice of dress evinces a social awareness of continuity with the past and is pursued intentionally, because of some normative power within the long-standing practice (because dressing with a coat and tie is neat, or because it is professional, or because it is elegant, or because predecessors whom I admire dressed in this fashion, and so on [MOD edit: or because the choice signals something to students about the authority of those past choices]). I dress in this way intentionally to retransmit the past to the present because I believe there is value both in the choices of the past and in their continuity. This self-consciously and normatively chronic quality is probably not the only element comprising the traditionalist view; but it is an important one.

Some might say that the existence of any substantive reasons deprives the practice of dressing with a coat and tie of its traditionalism, because traditionalism implies that a belief or practice is transmitted mindlessly or without any reason. But this strikes me as altogether wrong. In an old essay, Samuel Coleman once gave the following example:

Turkish farmers leave the stones on their cultivated fields. When asked why, they say that is the way it has always been done and that it is better that way. In point of fact, it is. When U.N. agronomists, after considerable exhortation, persuaded some young Turks to remove the stones from their fields, their crops suffered. Apparently the stones help condense and retain the dew in the arid climate, but this was unknown. It may have been known to the originators of the custom, for there is evidence that it was known in biblical times. This apparent fact had been forgotten, while the practice persisted.

Was the practice of laying stones not a tradition when the reason for it was known and passed on? Did it become a tradition only when the reason was forgotten? Is it now no longer a tradition because of the adventitious intervention of the U.N.? The practice itself, as understood by the practitioners of it, is unchanged. No, says Coleman, “we would avoid all sorts of muddle if we did not speak of traditions being transmuted into non-traditions by confirmation of the proposition believed or the practice followed.” There can be, and often is, reason in tradition.

October 24, 2016 in DeGirolami, Marc | Permalink

Wednesday, October 12, 2016

How Rights Are Like Taffy

I have this short reflection over at the Liberty Law blog, which picks up a little bit on some things I've thought about at MOJ before. This is my own contribution of sorts to the symposium at the Law and Religion Forum that we are hosting on Professor Phillip Muñoz's fine paper, "Two Concepts of Religious Liberty," and the set of posts it has generated. A bit:

Exemption from laws interfering with such interests might be granted as a matter of legislative grace, but were not constitutionally compelled. The constitutional right of religious freedom was intended to protect a natural right, and like other natural rights, its authority was supreme until precisely the point where its natural limits ran out. Beyond that point, the authority of the state to protect the peace and the rights of others was supreme.

Muñoz is not the first to make this general claim, though he supports it with some important new evidence. Indeed, the claim has been made by, among others, Professor Philip Hamburger in his fine 2004 essay, “More Is Less,” and the general idea can be made to apply to rights of all kinds. The greater the coverage of the right, the more likely that the right will conflict with other interests that a government might wish to protect, and the more qualified the right may become.

As Hamburger puts it:

If a right is defined with greater breadth, will this necessarily stimulate demands for a diminution of its availability? Surely not. Nonetheless, the danger may be inherent in every attempt to expand a right, for at some point, as the definition of a right is enlarged, there are likely to be reasons for qualifying access.

The danger, moreover, is not only that more coverage means greater opportunity for conflict with governmental interests at the periphery of the right. It is that by conceiving of natural rights broadly, and as by their nature in a kind of perpetual give-and-take with governmental interests, even the core of the right becomes negotiable. By and by, we become accustomed to thinking of natural rights just in this way—as just one more set of interests to be balanced by the government as it pursues its own purposes. Rights, in sum, are like taffy. They may be chewy and tough out of the wrapper, but as you stretch them out they become ever thinner, and ever weaker.

Some have contested this general account. Professor John Inazu, for example, has argued that the rights-confinement claim ignores the cultural context within which some rights grow more powerful while others decline. Free speech, after all, seems as powerful as ever, while religious freedom declines. But the ambit of both has expanded greatly over the last century, which suggests that the latter has declined for reasons other than rights-expansion.

I wonder, though, whether rights-expansion and cultural devaluation may be mutually supportive rather than mutually exclusive explanations for the decline of a right. Free speech, for example, has both grown exponentially as a right over the last several decades and has itself come under threats of all kinds in more recent years, as the government plays an ever larger role in the life of the citizenry. In that sense, we could say that more is more, because every inch gained is a gain for the right, and every inch lost is a gain for the state.

October 12, 2016 in DeGirolami, Marc | Permalink

Monday, October 10, 2016

Response to Tom

I appreciate Tom's response to the quoted paragraphs I posted from Legutko's book. I did intend them to be in conversation with Tom's post, just as I have made arguments at Mirror of Justice in the past in conversation with his posts regarding many of the points he makes below. We may not agree about a few things, but we do agree about others. I'll just mention a few of the agreements (one of which is a tentative agreement) before noting a possible disagreement.

Tom and I agree that churches and religious institutions have made social contributions in the past and continue to make them today. Tom and I also agree that churches and religious institutions should be permitted to continue to make these contributions notwithstanding their standing athwart various moral, cultural, and political values supported by the broader secular society.

I think, but am not as sure, that we also agree that any time churches and religious institutions must justify the sorts of contributions they make to the broader secular world, there is a danger that in so justifying themselves, they may feel pressure to compromise as to certain of their core beliefs. That can occur not only, as Tom writes, under such circumstances as when "Catholic colleges drop...major religious elements in order to be eligible for federal funding." It can also occur more subtly, as when a religious institution vying for a particular contract knows that it is less likely to obtain that contract unless it soft-pedals, or moderates, its views on particular political, moral, or cultural issues of interest both to it and to the broader secular polity. It might happen in the context of tax and other fiscal exemptions. Under circumstances which, as Tom said, religious freedom is not an accepted premise, but a premise that needs to be justified by religious institutions' contributions to secular society, it seems only reasonable to suppose that an increasingly secularizing society will want to see justifications that match up with its own premises concerning the public good. That might very well be dangerous both for religious freedom and for the continuing survival of the religious organizations' contributions to the social sphere. And that, I believed, was one of the points made in the paragraphs I quoted--that the twin dangers of conciliation and capitulation must be minded. One stratagem to circumnavigate this problem might be for the religious organization to focus its energies on ostensibly "nonpolitical" or "noncultural" issues. I doubt it is an effective stratagem, however. More importantly, though there may be a difference in pursuing secular aims and justifying one's aims in secular terms, keeping these two projects conceptually pure may be rather challenging over time.

Tom and I may disagree about what he has described as "the middle" and the sorts of arguments that are likely to persuade it. Those disagreements have been rehearsed in other posts, but they are relevant here, too. In fact, I took it to be a premise of Tom's post that as American society becomes more secular, the middle itself will shift, and therefore the sorts of arguments that will be persuasive to it will shift, too. Those arguments will need to be made, more and more, in the language of secularism and within the accepted premises of what makes for a "social contribution" and what does not, and less and less in a language which takes it as a premise that religious freedom is intrinsically good. Tom and I may also disagree, in that case, about the likelihood of the dangers of conciliation and capitulation that face religious institutions as those changes persist.  

October 10, 2016 in DeGirolami, Marc | Permalink