Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Monday, November 20, 2017

Garnett & Koppelman on Trinity Lutheran *Today* in Chicago

I'm looking forward to this event -- a discussion about the Trinity Lutheran case and its implications, with my friend Prof. Andrew Koppelman -- in Chicago today.  CLE credit is available.  If you're around, stop by!

November 20, 2017 in Garnett, Rick | Permalink

Tuesday, November 14, 2017

In City Journal: "Taking the Catholic out of Catholic universities"

A bracing, sobering read, here, about the state of Catholic higher education and some of the forces that are shaping it.  I share many of the author's concerns about many of the particulars mentioned, though I think it sweeps a bit too broadly in places and also neglects the good things that are happening -- and, in many respects, the Catholic-identity improvements that have happened in recent years -- at my own University of Notre Dame.  The author writes:

Still, despite all the evidence that most Catholic colleges and universities have lost their way, cause for hope exists in the flourishing of Catholic colleges—Christendom, Franciscan, Ave Maria, the University of Dallas, Wyoming Catholic, John Paul the Great, St. Thomas More College in New Hampshire, California’s Thomas Aquinas, and others—that remain committed to a Catholic identity.

I share this admiration for much of what's happening at these newer, smaller, intentional Catholic colleges.  At the same time, "cause for hope exists in the flourishing" of, e.g., the McGrath Institute for Church Life, ND Vision, Echo, the Alliance for Catholic Education, the Program on Church, State & Society, the Center for Ethics & Culture, the Tocqueville Program, etc.  As I've said before, if one cares about Catholic higher education (and, in my view, we all should), then one should care about, and pray for, Notre Dame (and not just the Fighting Irish!). 

November 14, 2017 in Garnett, Rick | Permalink

Monday, November 13, 2017

Law & Religion Moot Court competition at Touro

Touro Law Center is pleased to announce the Fifth Annual National Moot Court Competition in Law and Religion.  More info is available here

November 13, 2017 in Garnett, Rick | Permalink

Friday, November 10, 2017

Good, Evil, and Criminal Law: A Report from the Center for Ethics and Culture

As Marc mentioned the other day, the annual Fall Conference sponsored by the Notre Dame Center for Ethics & Culture is in full swing.  (It's always a wonderful event.)  I had the pleasure of moderating a panel of law-professor-Criminal-Law-profs, including our own Marc DeGirolami and Cecelia Klingele, and also MOJ-friends John Stinneford and Meghan Ryan.  It isn't always the case that multi-speaker panels actually cohere with each other, or with the panel's ostensible theme, but this one definitely did.

Meghan provided an overview and orientation of the various purposes and goals of punishment; John reflected on what exactly "punishment" is and the extent to which it is (or should be) connected to moral blameworthiness (and not merely social control); Marc discussed the different ways we have talked about, and talk about today, "evil" (with reference to, inter alia, Arent, Mill, and Stephen); and Cecelia rounded things out with some cautionary notes about the moves in Criminal Law and corrections in the direction of algorithm-driven risk-assessment and big-data-dependent predictive policing.  A good time was had by all! 

November 10, 2017 in Garnett, Rick | Permalink

Tuesday, November 7, 2017

A quick response to Stephen Schneck on "How Catholics Should Vote"

A few days ago, Stephen Schneck posted this reflection at U.S. Catholic.   Although I agree with most of what he writes, I have a few quibbles, too.  

First, under "Practice Politics," he writes "Catholic teachings insist on the importance of voting."  True, but I'd want to clarify that voting's "importance" does not mean that, in every election, Catholics are morally obligated to vote.  Not only are there many other ways to effectively "practice politics," it could also be the case that one communicates an important point by not voting.

Second, under Reflection 3 ("Discern the Common Good"), he writes:  

The measure for the common good is not military prowess, technology, or the Dow Jones Index; it is instead the quality of life of the least among us. In Catholic teachings citizens should vote with the least among us foremost in their minds.

It strikes me that this way of putting things is running together two distinct ideas:  First, it seems right that, as a matter of solidarity, we should take special care to practice politics in such a way as to protect the vulnerable.  The "common good," though, is usually defined in the Catholic Social Tradition (See Catechism para. 1906-09):

 "the sum total of social conditions which allow people, either as groups or as individuals, to reach their fulfillment more fully and more easily."26 The common good concerns the life of all. It calls for prudence from each, and even more from those who exercise the office of authority. It consists of three essential elements:

1907 First, the common good presupposes respect for the person as such. In the name of the common good, public authorities are bound to respect the fundamental and inalienable rights of the human person. Society should permit each of its members to fulfill his vocation. In particular, the common good resides in the conditions for the exercise of the natural freedoms indispensable for the development of the human vocation, such as "the right to act according to a sound norm of conscience and to safeguard . . . privacy, and rightful freedom also in matters of religion."27

1908 Second, the common good requires the social well-being and development of the group itself. Development is the epitome of all social duties. Certainly, it is the proper function of authority to arbitrate, in the name of the common good, between various particular interests; but it should make accessible to each what is needed to lead a truly human life: food, clothing, health, work, education and culture, suitable information, the right to establish a family, and so on.28

1909 Finally, the common good requires peace, that is, the stability and security of a just order. It presupposes that authority should ensure by morally acceptable means the security of society and its members. It is the basis of the right to legitimate personal and collective defense.

So, one of the conditions that makes up the common good is "the stability and security of a just order" and, relatedly, effective "collective defense."

Finally, Schneck writes that "[i]n Catholic teachings citizens should vote for the virtuous."  Not necessarily.  For starters, we don't always (to put it mildly) have that option.  It seems that this reflection is running together the importance of "policies that inculcate virtue" with a policy of "voting for the virtuous."  It could easily be, in any given election, that the prudent course -- the best way to secure policies that inculcate virtue and protect the common good -- is to vote for a particular candidate who is not particularly commendable in terms of his or her character.  Now, to be clear:  I do believe, and have for as long as I can remember, that "character matters."  (As I discussed about a year ago, here.)  A candidate's lack of virtue or a candidate's bad character will often be good reasons to vote against him or her.

Like I said . . . quibbles!     

November 7, 2017 in Garnett, Rick | Permalink

Upcoming event at Georgetown's Initiative on Catholic Social Thought and Public Life

I'm looking forward to joining Melissa Rogers and Bishop McElroy for a discussion at this event:

Faith, Common Good, and Democracy in a Time of Pope Francis and President Trump

Before his death 50 years ago, John Courtney Murray, S.J., the preeminent Catholic theologian on democracy and religious freedom, wrote that people: 

of all religions and of no religion must live together in conditions of justice, peace and civic friendship, under equitable laws that protect the whole range of human rights, notably including the right to religious freedom. It is therefore necessary for the Church to show the way to justice and peace in society…

The implications of Murray’s call to action in our polarized politics and challenged Church will be explored in a one-on-one conversation with Bishop Robert McElroy of San Diego, who authored the book The Search for an American Public Theology: The Contribution of John Courtney Murray (Paulist Press, 1989). The bishop will then be joined by former executive director of the White House Office of Faith-based and Neighborhood Partnerships Melissa Rogers and Professor of Law and Associate Dean at the University of Notre Dame Richard Garnett for further discussion of faith, the common good, and democracy. These panelists will answer several key questions:

  • What are the legacy and lessons of Murray’s groundbreaking work on faith and democracy? 
  • How are religious freedom and the common good threatened and advanced today?
  • How do these principles challenge us in a nation led by President Trump and in a Church led by Pope Francis?

John Carr, director of the Initiative on Catholic Social Thought and Public Life, will moderate the Dialogue.

November 7, 2017 in Garnett, Rick | Permalink

Wednesday, November 1, 2017

Some thoughts in the wake of Amy Barrett's confirmation

Yesterday, my friend and colleague, Prof. Amy Coney Barrett, was confirmed to the United States Court of Appeals for the Seventh Circuit.  I was pleased that a few Democratic senators -- including two Catholics, my own Senator Joe Donnelly and also Virginia's Tim Kaine -- supported her confirmation, as did hundreds of students, scholars, colleagues, and co-clerks.    

Prof. Barrett's record was glaringly distorted and misrepresented by interest groups.  The "Alliance for Justice" behaved particularly badly, and dishonestly.  Several of the senators who questioned her during her hearings also acquitted themselves, to put it mildly, poorly.  She was subjected to a particularly low and Dan-Brown-esque (and also factually inaccurate) piece in the New York Times, about her association with the People of Praise, written by a journalist who should have known better.  There is no doubt that, in some quarters, the fact that Barrett is a practicing Catholic, who has been public about the Faith's importance to her and who has reflected thoughtfully on its implications for her professional life, was a motivating factor for opposition, criticism, and attacks.  To their great credit, many who do not share Barrett's jurisprudential views, and do not (at all) support this President -- for example, Noah Feldman and Chris Eisgruber -- spoke out clearly and powerfully against the inappropriate attacks.

To be sure, these facts do not establish, technically speaking, a violation of the Constitution's ban on religious tests for federal office.  In addition, it is not the case (contrary to what was said by those who persisted in defending Barrett's attackers) that to criticize the tactics of those who opposed Barrett's nomination is to say that a judge's "personal views" are never relevant to her judicial work or to senators' decisions about whether to vote to confirm.

The judicial-confirmation process has been in bad shape, at least since Robert Bork's failed nomination, for a long time; I believe the deterioration accelerated after 2000 and is now perhaps as bad as it has ever been.  However, I suppose it would be strange if, in the midst of a larger politics that seems to be failing in many ways, our judicial-confirmation process were civil, healthy, and honest.  St. Thomas More, patron of lawyers and statesmen, pray for us!           

November 1, 2017 in Garnett, Rick | Permalink

Monday, October 30, 2017

Paul Julius Schierl, R.I.P.

I have the honor, at Notre Dame Law School, of holding the Paul J. Schierl / Fort Howard Corporation Chair.  A few days ago, Mr. Schierl died at the age of 82.  He lived a full, rewarding, and exemplarly life, in the law and in his community.  Read about him, his work, and his family here.  R.I.P. 

October 30, 2017 in Garnett, Rick | Permalink

Sunday, October 29, 2017

Remembering the English Reformation

Campion

October 29, 2017 in Garnett, Rick | Permalink

Hauerwas on the Reformation - It's "Over. So Why Are We Still Here?"

Stanley Hauerwas has an (as one would expect) provocative and someone idiosyncratic reflection up at the Washington Post.  (I'm assuming that, in keeping with the usual practice, Hauerwas didn't pick the particulars of the headline."  A bit:

Five hundred years after its inception, we are witnessing the end of the Reformation. The very name “Protestant” suggests a protest movement aimed at the reform of a church that now bears the name of Roman Catholicism. But the reality is that the Reformation worked. Most of the reforms Protestants wanted Catholics to make have been made. (Indulgences are no longer sold, for instance.) A few Protestant denominations might still be anti-Catholic (consider evangelical pastor Robert Jeffress’s claim, recently publicized, that Catholicism has Satanic origins ), but the original idea that Catholics adhere to a legalistic perversion of Christianity that does not admit the free grace of God is seldom seen, these days, as the Protestant difference from Catholicism. Over time, historians have helped us see that there was no one thing the Reformation was about, but that if there was a single characteristic at its heart, it was the recovery of the centrality of Christ for making sense of why Christians are not at home in this world. That emphasis turned out to be the overriding insight that shaped the work of Vatican II, meaning Catholics have overcome the major thrust of the Reformation.

That the Reformation has been a success, however, has put Protestantism in a crisis. Winning is dangerous — what do you do next? Do you return to Mother Church? It seems not: Instead, Protestantism has become an end in itself, even though it’s hard to explain from a Protestant point of view why it should exist. The result is denominationalism in which each Protestant church tries to be just different enough from other Protestant churches to attract an increasingly diminishing market share. It’s a dismaying circumstance. . . .

My own sense is that it's difficult to reduce or distill the Protestant Reformation (Revolt?) down to one "single characteristic" and so it is also difficult to pronounce with confidence who "won" or to say what "winning" would even be.  (A lot of early Protestants had a whole lot of practices and teachings in their sights - e.g., the veneration of Mary, the Sacraments, etc. - that still seem to be going strong.)  Still . . . interesting.

 

October 29, 2017 in Garnett, Rick | Permalink