Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

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

Thursday, October 26, 2017

Center for Civil and Human Rights Announces 2018 Prize for Outstanding Scholarship

 

The Center for Civil and Rights (CCHR) at the University of Notre Dame, in partnership with Notre Dame's Journal of International and Comparative Law, announces its 2018 Prize for Outstanding Scholarship.
 

Submissions are now being accepted for papers investigating the intersection of International Human Rights Law and Catholic Social Teaching. Authors may approach the subject from a variety of perspectives, the goal being to illuminate the relationship between the two bodies of thought. Preference will be given to papers that make use of Convocate, CCHR’s online research portal for simultaneous examination of documents from both disciplines.

The winning submission will be published on Convocate, and the winner will be invited to publish in the Journal of International and Comparative Law. The competition winner will also receive a $1,000 cash prize.

More on Convocate can be found here.

 

Eligibility

Submissions will be accepted from any faculty member, scholar, graduate or post-graduate student, both domestically and internationally.

 
Submission Deadline

Submissions must be received by 11:59 p.m. on Friday, April 6, 2018.

The winning submission will be announced by April 30, 2018.
 

Submission Guidelines

Topic: The intersection of International Human Rights Law and Catholic Social Teaching

10,000 – 15,000 words

Bluebook footnote format strongly preferred
 

Authors must submit, along with their papers, the following:

Name

Email address

Short title of paper

Abstract

Keywords

Inquiries may be directed to Kevin Fye at kfye1@nd.edu.

October 26, 2017 in Garnett, Rick | Permalink

Paolo Carozza on "the true Benedict Option"

My friend and colleague, Prof. Paolo Carozza, shared with me the address he delivered a few years ago at Benedictine College.  It is a very thoughtful reflection on the life and witness of St. Benedict and his relevance to our times.  Among other things, he engages some of what Rod Dreher has been arguing, in his The Benedict Option and elsewhere.

I particularly liked this:

God has written into the world “an order and a dynamism that
human beings have no right to ignore,” [Pope Francis] tells us . . . .  And thus the proper
attitude for us to strive for in the face of this fact must be one of “gratitude and
gratuitousness, a recognition that the world is God’s loving gift.”  It is
quite countercultural today to insist that reality and the world of meaning are not
wholly constructed by us. And nevertheless it is true that the things that most
correspond to the destiny of our lives are not the ones we “make”, and still less the
ones we “possess” or that we “consume”. Instead we have to allow ourselves to be
made by, possessed by, and consumed by a passion for truth and beauty and
goodness.


Beginning again, the beginning of a new year institutionally, the beginning of
a new stage in life, the new beginning of hope in a world that has lost its way, begins
with our own hearts. If we allow ourselves to be made and possessed and consumed
there, we will witness the transformation of the very heart of the world.

October 26, 2017 in Garnett, Rick | Permalink

Monday, October 23, 2017

Conference: "Here I Stand: Conscience, Reformation, and Religious Freedom Across the Centuries"

This event, sponsored by the Religious Freedom Research Project at Georgetown's Berkley Center, looks to be really good.  If you're in Washington, D.C. on Nov. 1 . . . check it out! (RSVP required.)  Here's the blurb:

On October 31, 1517, Martin Luther published his Ninety-Five Theses urging sweeping religious reforms and catalyzing the Protestant Reformation. The Reformation unleashed an intensified focus on freedom of conscience, with dramatic social and political consequences. It fostered new notions of religious liberty as well as new frameworks for civic life. At the same time, the Reformation built upon centuries of Roman Catholic and Eastern Orthodox theologies of conscience, dignity, and freedom in ways that are not always understood.

This symposium will explore these dynamics, but also examine how Christianity per se has unleashed distinctive and powerful principles of conscience and freedom across its 2,000-year history, even in the face of what Pope Francis has called the “ecumenism of blood”—the severe religious persecution affecting numerous Christian and non-Christian communities around the world.

The line-up of speakers and presenters is really impressive, and the keynote address is by the great Robert Louis Wilken.

October 23, 2017 in Garnett, Rick | Permalink