Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Monday, November 23, 2015

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November 23, 2015 in Garnett, Rick | Permalink

A gloomy thought . . .

From James Kalb, in his recent First Things essay, "Technocracy Now":  "It is of limited use to push specific causes when the entire basis of public life is so radically defective."




November 23, 2015 in Garnett, Rick | Permalink

Stith on "Facing the Unborn"

A few months ago, Richard Stith had a really thoughtful essay in First Things called "Facing the Unborn."   This really jumped out at me:

Michael Kinsley, writing in 2006 in theWashington Post, expressed his utter bewilderment at opposition to embryonic stem cell research. “I cannot share, or even fathom, [the anti-research] conviction that a microscopic dot—as oblivious as a rock, more primitive than a worm—has the same human rights as anyone reading this article. . . . Moral sincerity is not impressive if it depends on willful ignorance and indifference to logic.”

What's so, so wrong with Kinsley's statement is that it simply is not the case that we are talking, in this context, about something that is "a microscopic dot -- as oblivious as a rock, more primitive than a worm"; that's not what even the smallest and youngest human person is.  (For a smarter elaboration of this point, check out Robby George's and Chris Tollefsen's Embryo:  A Defense of Human Life.)


November 23, 2015 in Garnett, Rick | Permalink

Sunday, November 22, 2015

On the Feast of Christ the King

In my experience, preachers in Catholic parishes don't know quite what to do with the Feast of Christ the King.  Usually, the day's "message" or "theme" has been (again, in my experience) something to the effect that we should ask if we are "putting Jesus first in our lives" (and, certainly, we should). 

And yet . . . especially in light of the emerging (and much needed) focus in the Church on religious liberty and the realities of both aggressive secularism and persecution, it's worth re-reading Quas Primas, the encyclical of Pope Pius XI that instituted the feast day in 1925, and remembering that this institution's purpose sounded more in political theology than in personal piety and devotion.  This feast -- which we celebrate, again, this Sunday -- is a reminder that government is not all, that there are things which are not Caesar's, and that everything, in the end, is "under God."

This one-page bulletin insert, "That He Would Reign in Our Hearts," put out this year by the USCCB, does a good job, I think, of tying together the "public" and "private" dimensions of the Feast. 

Viva Cristo Rey!

And, on that note, some great resources from Fr. Barron are available here.  I particularly liked this one, about the Cristero War.

November 22, 2015 in Garnett, Rick | Permalink

Saturday, November 21, 2015

Syrian Refugees, National Security, and Catholic Legal Theory

A few correspondents have asked me (paraphrasing) "why haven't you blogged about the boiling debate over whether or not the United States should exclude Syrian refugees in the wake of the attacks on Paris and why haven't you written in response to the controversial things being said, done, and proposed by some politicians and candidates?"  Some of these correspondents seemed curious; some others seemed to be leveling an accusation of some kind.

I do not know as much as I should about the law and policy relating to immigration and asylum.  I'd welcome my fellow MOJ-ers who do to weigh in.  My own view is that the "debate" that's been happening in my Twitter feed, on Facebook, on op-ed pages, and in the public square has been, for the most part, frustrating, unedifying, and simplistic.  

It seems pretty clear to me that (a) ISIS (etc.) pose a serious national-security threat, one that our government and other governments should take very seriously and respond to with both prudence and resolve; (b) the United States should -- the attacks in Paris notwithstanding -- welcome refugees (of all faiths and none) from conflicts in Syria and elsewhere, after appropriately careful screening and investigation, in appropriately managed numbers, and state governors and other politicians should not grandstand or engage in demagoguery about excluding (or worse!) refugees; (c) that it is not xenophobic or racist, but rather entirely reasonable, to take seriously and to respond intelligently to the possibility that some people will exploit the refugee crisis and attempt to use refugee status for bad purposes; and (d) that it is not an "un-American" "religious test" to place special (again, not exclusive) emphasis on providing a safe refuge for religious minorities who are the victims and targets of persecution because of their religion.  (One more:  It also seems clear to me that arguments that take the form of "If you/we do [something about which I wish to express disapproval] then you/we will be doing exactly what ISIS wants you/we to do" are overused.)

I'd welcome, as always, others' perspectives.  I'm reminded of the careful and balanced approaches to the immigration issue that folks like Mary Ann Glendon and Michael Scaperlanda have proposed over the years.

November 21, 2015 in Garnett, Rick | Permalink

"For Freedom Set Free" Conference at Notre Dame Center for Ethics & Culture

One of the highlights of the academic year at Notre Dame is the Center for Ethics & Culture's annual Fall Conference, which is going on now in snowy South Bend.   Ably led by my good friend and colleague Carter Snead, the Center's contributions to Notre Dame's mission are incalculable.   To pick out just one highlight, last night featured a pointed and provocative back-and-forth between Fr. Martin Rhonheimer and Dr. Thomas Pink on Dignitatis Humanae, coercive authority, doctrinal development, and other good stuff.  (Watch it here.)

Later this afternoon, MOJ-er Michael Moreland and I are participating in this panel:

Religious Liberty: Theory and Freedom of the Church
"The Infrastructure of Religious Freedom," Richard Garnett (University of Notre Dame)
"When Is a Religious Institution a Religious Institution?" Michael Moreland (Villanova University)
"Religious Freedom and the Secular State: Natural Law and Natural Ends," Rev. Thomas Joseph White, O.P. (Dominican House of Studies)
Conference Center Lower Level

Come say hello!

November 21, 2015 in Garnett, Rick | Permalink

Friday, November 20, 2015

Arkes, Franck, natural law, the Constitution, and judging . . . again

Returning to a subject that has often been addressed here at Mirror of Justice:  There's a lively exchange going on, in various places, between Prof. Hadley Arkes and Matthew Franck on (among other things) the extent to which federal judges, in the course of interpreting the particular legal text that is the Constitution of the United States, may, should, or inevitably must interpret and apply the natural law.   

As I've written here many times (here, for instance), I do not agree with Prof. Arkes's position on this question.  

November 20, 2015 in Garnett, Rick | Permalink

Thursday, November 19, 2015

A misplaced and unwarranted criticism of Catholic University of America (and, yet again, on public-sector unions)

At dotCommonweal, Anthony Annett has this post, "Catholic University's Business School Again," in which -- in the course of making some entirely sensible points about the tension between certain forms of "libertarian" "individualism" and Catholic Social Teaching -- he lodges what I think are some unfounded and in places unfair criticisms of Catholic University and its President, John Garvey (full disclosure:  Pres. Garvey is a friend and mentor of mine).  

First, Anthony objects to the fact that, at Catholic University's Business School, there was on display a poster that included an image of the headline of this op-ed, which Pres. Garvey co-authored a little while back and which defends (quite persuasively, in my view) the University's decision to accept a $1 million contribution from the Charles Koch Foundation to hire researchers on the role of "principled entrepreneurship."  The headline included this subtitle: “This Catholic university won’t cave to demands made by the liberal social justice movement.”  Anthony then writes:  "I am well aware that op-ed authors don’t often write their own titles and subtitles. But do Garvey and Abela seem remotely embarrassed by this title? Not in the slightest."  

This seems quite unfair to me.  As we all know (and many of us who have written for newspapers have been frustrated by this), the titles to our op-eds are very rarely written by us.  There's absolutely no reason to think Pres. Garvey and then-Dean Abela wrote this subtitle and there's no evidence provided for the suggestion that they were or are unbothered by it.  How, exactly, were they supposed to manifest their embarrassment or irritation?  And, in any event, Pres. Garvey has a long and productive history as a scholar and a public intellectual (I mention him, and not Dr. Abela, only because I don't know the latter or his work) and that history does not provide any reason to think that Pres. Garvey has any reservations about the fact that -- as Anthony writes -- "'[s]ocial justice' is central to Catholic social teaching, and its tenets are non-negotiable."  (Indeed, that history is rich with reasons to think otherwise.)

Anthony writes later:

And in a speech in Bolivia this summer, Pope Francis had this to say: “Working for a just distribution of the fruits of the earth and human labor is not mere philanthropy. It is a moral obligation. For Christians, the responsibility is even greater: it is a commandment. It is about giving to the poor and to peoples what is theirs by right. The universal destination of goods is not a figure of speech found in the Church’s social teaching. It is a reality prior to private property.”

This is the very antithesis of the Kochs’ ideology. It is highly traditional Christian teaching. But would Garvey and Abela view these as demands coming from the “liberal social justice movement”?

Whatever the flaws (and I concede the flaws, of course) in "the Kochs' ideology" (and putting aside, for now, the near-obsession in some quarters with "the Koch Brothers" and the tendency to allow the mere invocation of their name to function as an argument) there is, again, no reason to suggest that Garvey and Abela would dismiss the words of Pope Francis, or the traditional content of Catholic Social Teaching, as "coming from the 'liberal social justice movement.'"  Again, it just doesn't seem fair.  If one thinks that CUA should turn down money from the Koch Brothers because they hold some unsound views . . . fine.  But the arguments that Garvey and Abela made for adopting a different conclusion are reasonable and do not remotely rest on or reflect a "libertarian" rejection of Catholic Social Teaching's tenets. (They do reflect, I suppose, an assumption that the role of "principled entrepreneurship" in a market economy is an important and worthy topic . . . and they are right.  Catholic Social Teaching certainly permits, and I think it supports, what John Paul II called a "market" or "free economy" -- which is, obviously, a well-regulated, humane economy that recognizes the important limits on the domains of markets.) 

Finally, Anthony takes issue with Garvey's and Abela's brief discussion of the Koch's opposition to public-sector unions' activities, and writes:

Garvey and Abela pull out the favored talking point that the Church has never spoken explicitly about unionization in the public sector. But neither has it said anything explicitly about unionization in any other sector! A natural right to association does not cease to be a natural right because the employer is public rather than private.

As I've written here at MOJ many (many, many) times, it is not, at all, the case that the Church's teachings on labor, the dignity of work, and the natural right of association entail support for, say, closed-shop arrangements and the details of collective-bargaining agreements between public-employee unions and state and local governments.  Of course public employees have the right to associate and of course they and their work are dignified.  It simply does not follow, though, that there are not important and policy-relevant distinctions to be drawn between the relationship between governments and public employees, on the one hand, and the relationship between private employers and their employees, on the other.

I am not disagreeing with Anthony's premise that, sometimes, the appropriate response by a Catholic university to a donation from a bad actor, or to funding that comes with unacceptable conditions, should be to say "no, thank you."  This could be a good way, sometimes, to bear witness to the Truth.  But I do think, again, that this post was needlessly unfair to Pres. Garvey and to then-Dean Abela. 

November 19, 2015 in Garnett, Rick | Permalink

Barry Sullivan on Access to Information and Catholic Social Thought.

This paper looks interesting:

Access to Information: Citizenship, Representative Democracy, and Catholic Social Thought

Barry Sullivan

Loyola University Chicago School of Law

November 4, 2015

From Democracy, Culture, Catholicism: Voices from Four Continents (Fordham University Press 2015)


This essay discusses the relationship among government transparency, human dignity, democratic theory, and Catholic social teaching. The essay argues that citizens in democratic societies such as the United States have a right to the information necessary to make informed decisions about public policy and those they elect to enact such policy. The citizen’s claim to such information is based on the belief that each citizen is respected and dignified as a human person when able to participate in this democratic form of governance and decision-making. This right, and the dignity it is based on, finds support in and through the insights offered by Catholic social teaching and in the work of the French philosopher Jacques Maritain. The difficulty arises, the essay maintains, when the Church supports human dignity and transparency as applied to others, but not to itself. That stance compromises its effectiveness in promoting the democratic right to information and the rights to respect and dignity.


November 19, 2015 in Garnett, Rick | Permalink

Wednesday, November 18, 2015

A very disturbing development in Australia:

The story is here:

Archbishop Anthony Fisher OP has denounced as “astonishing” and “alarming” the prospect of a Catholic bishop being dragged before a tribunal simply for stating the Catholic view on marriage, suggesting that it would constitute a betrayal of freedoms long valued in Australian democracy.

The archbishop made the remarks in the wake of news that Archbishop Julian Porteous of Hobart might be hauled before Tasmania’s anti-discrimination tribunal for distributing a booklet explaining Catholic teaching on marriage to families within Catholic schools. . . .

What's most "alarming", I suppose, is that it really isn't all that "astonishing" (with all respect to Archbishop Fisher), given all the givens, that some would seek to employ antidiscrimination laws in this way.  I imagine we'll see more of this, even if not in the United States (given our -- for now -- more "libertarian" free-speech doctrines).

November 18, 2015 in Garnett, Rick | Permalink