Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Monday, January 29, 2018

Cloned monkeys and moral anthropology

As I proposed in my very first MOJ post, nearly 14 years (!) ago, and as I've contended in a few articles over the years (e.g., here and here), answering pretty much all questions about legal institutions and doctrines requires, in the end, engaging with big questions of moral anthropology, e.g., what does it mean to be a person and why does it matter that one is a person?  What is the nature, and what is the destiny, of the person?  These questions were, of course, at the very heart of the work and pontificate of Pope St. John Paul II.  I wrote once:

“Are human beings different from meat?” A recent book review opens with the complaint
that this is “[a]n example of the worst type of modern philosophical question”; a question that, “[f]or
those among us who have never been invited into Socratic dialogue by, say, a porterhouse, . . . is
dumb in ways rarely thought possible before.”2
The reviewer is right, of course—the question is
“dumb.” Then again, we might wonder if this “worst kind” question is really all that different from
the Psalmist’s own: “Lord, what is man . . . that thou makest account of him?” (Psalms 143:3) The
question, it turns out, is both perennial and profound: “What is man, and why and how does it

Well, here comes news from China about the (alleged) cloning of a monkey in China, prompting the headline, "How can we be special if we're just a bundle of cells?"  How, indeed?

January 29, 2018 in Garnett, Rick | Permalink

A Review of "Before Church and State" by

Here, thanks to the University Bookman site, is William Borman's review of Andrew Willard Jones's bookBefore Church and State:  A Study of Social Order in the Sacramental Kingdom of St. Louis IX.  Fascinating stuff.  A bit:

The thesis of Jones’s book is simple: everything that we thought we knew about the Middle Ages is fundamentally mistaken, and the study of the Middle Ages in modern times has frequently, indeed almost always, amounted to the study of modern preconceptions and prejudices about the past. . . .   The main obstacle to our understanding of the medieval world, indeed, appears to be our understanding of our own world, and our routine application of modern conceptions to a past in which they do not belong. We have ignored or discarded the concepts proper to our area of study. Instead of looking at the microbe through the microscope, we have effectively been studying the lens.

Many examples of Jones’s thesis are provided, with much detail. Here are a few: “secularism” did not exist; the distinction between “temporal” and “spiritual,” or between “church” and “state,” did not exist; peace in temporal matters was peace in spiritual matters, and vice versa; the “state” itself did not exist, nor did “sovereignty,” nor “law”; “violence” is not a necessary characteristic of society but a disrupter of it, for society is peace; and governance is not determined, as Weber thought, by a “monopoly on force.” . . .

Check it out.


January 29, 2018 in Garnett, Rick | Permalink

Monday, January 22, 2018

January 22 Day of Prayer for the Legal Protection of Unborn Children

From the USCCB:

The over 56 million abortions since the 1973 decisions of Roe v. Wade and Doe v. Boltonreflect with heartbreaking magnitude what Pope Francis means by a “throwaway culture.” However, we have great trust in God’s providence. We are reminded time and again in Scripture to seek the Lord’s help, and as people of faith, we believe that our prayers are heard.

The General Instruction of the Roman Missal (GIRM), no. 373, designates January 22 as a particular day of prayer and penance, called the "Day of Prayer for the Legal Protection of Unborn Children”: “In all the Dioceses of the United States of America, January 22 (or January 23, when January 22 falls on a Sunday) shall be observed as a particular day of prayer for the full restoration of the legal guarantee of the right to life and of penance for violations to the dignity of the human person committed through acts of abortion.”

As individuals, we are called to observe this day through the penitential practices of prayer, fasting and/or giving alms. Another way to take part is through participating in special events to observe the anniversary of Roe v. Wade. Call your local diocese or parish to find out what events might be taking place in your area.

January 22, 2018 in Garnett, Rick | Permalink

Friday, January 19, 2018

A misleading report on Catholic hospitals

The "Public Conscience / Private Rights Project" at Columbia Law School is, in my opinion, an activist/lobbying enterprise, funded largely by ideologically motivated sources, that should not be housed in an academic institution of Columbia's stature.  But, put that aside.  The Project is touting a new "report", "Bearing Faith:  The Limits of Catholic Health Care for Women of Color."  I heard about the "report" in an email with the Onion-esque headline, "New Report Reveals Pregnant Women of Color More Likely to Receive Religiously Restricted Reproductive Health Care in Many US States." 

Good grief.  For decades, orders of Catholic women religious sacrificed heroically and made it their vocations to build institutions and provide health care in low-income, immigrant, and underserved communities.  And now there are "reports" suggesting that the animating, inspiring faith of these women -- which has implications, no surprise, for the institutions' willingness to perform abortions on those they serve -- is some kind of racist, oppressive miasma.  What a world. 

January 19, 2018 in Garnett, Rick | Permalink

It's out! "Essays in Honor of Robert J. Araujo, Jr."

Congrats, and thank you, to Fr. Hendrianto!  Fr. Araujo . . . a great priest, lawyer, scholar, and friend.  R.I.P.


January 19, 2018 in Garnett, Rick | Permalink

The Mortara Case, Pio Nono, Statism, Parents, etc.

In part because of the upcoming Steven Spielberg movie, and in part because of Fr. Romanus Cessario's review in First Things of Edgardo Mortara's memoir, and in part because of the renewed interest on the part of a number of accomplished scholars and thinkers (Deneen, Legutko, Vermeule, etc.) in the nature, foundations, and future of liberalism, there has been a boomlet of 21st century digital debate over the Edgardo Mortara case.  The case was hugely important in 19th century America in shaping perceptions not only of the Church and the papacy but also of Catholic schools and, it's fair to say, by shaping American anti-Catholicism it also shaped American church-state law.  Today, it also tees up questions about political theology and theory, the nature of the sacraments, the anti-Semitism of many Catholics, the natural rights of parents, Italian nationalism, etc.

On the one hand, it seems pretty strange -- and, perhaps, more than a little regrettable (Matthew Franck, in this piece, calls it a "needless quarrel")-- that this case (which, in my view, has to be judged, as Rusty Reno put it at First Things, as a "stain on the Catholic Church") is the topic of the moment.   Yes, the evidence as I understand it is that Mortara came to love Pope Pius IX and his own vocation to the priesthood and, yes, as Fr. Cessario wrote, "baptism configures a person to Christ, leaving something permanent in the one baptized."  Still - it was both immoral and illegitimate for the relevant authorities to take him away from his parents.  It was, among other things, as Robert Miller explained, an abuse of state power.  (I've seen some comments on Twitter criticizing Miller for framing his critique of the Mortara case in terms of "statism."  The complaint seems to be that Miller is reducing or conflating the wrong of unjustly taking Mortara from his parents to/with a libertarian critique of government action generally.  I don't think that's what Miller was doing at all.  "Statism" is a thing, after all -- it's not "constitutional governments promoting the common good" -- and it's bad.)

I'm inclined to agree with Franck that "Pius was wrong in the Mortara case—grievously so, as Miller’s main argument demonstrated—for venerable Catholic reasons he should have understood even in his own day, reasons having no connection with the modern liberal project that the integralists (rightly or wrongly) attribute to the anti-Christian secular enlightenment."  That is, I think it's important to note that the reasons Pope Pius was wrong are not simply that he didn't play by Rawls's (or any other left-liberal) rules; it's not (I hope!) the case, as Pat Smith charges, that the basis for criticisms of Mortara's removal is merely "comfortable, bourgeois liberalism" or a timid and naive attachment to Murray, Maritain, Dignitatis humanae, etc. 

For some more reactions, here is Rod Dreher and here is Nathaniel Peters.  And, of course, I invite other MOJ-ers to weigh in!


January 19, 2018 in Garnett, Rick | Permalink

Thursday, January 18, 2018

A reasonable and welcome decision to enforce conscience-protection rules

Read more here. It's strange that critics see something strange or ominous in a decision to have the Civil Rights Division allocate some resources to enforcing some important civil-rights laws -- which is, of course, what healthcare conscience protections are.  Division should allocate resources to make those protections meaningful.  The critics of this announcement are wrong to frame these protections in terms of "discrimination" or "disapproval."  Instead, they represent a sensible way of accommodating and respecting diversity and pluralism in the public square.  Once again, we see the widespread "confusion about discrimination" - for more on that, go here!

Contrary to the as-per-usual misleading complaint by Planned Parenthood (quoted in the linked-to story), the decision does not "impose a broad religious refusal policy" but simply remedies the previous administration's failure to follow longstanding policy.

January 18, 2018 in Garnett, Rick | Permalink

Monday, January 15, 2018

Pecknold on Augustine, liberalism, "compromise", etc.

Following up on my last post about Thomas Joseph White's piece, here's a short op-ed from Prof. Chad Pecknold, on what St. Augustine has to say about Catholic strategy in a "liberal era."  A bit:

For St. Augustine, the City of God on pilgrimage in this world is the only common good united to the highest good, and the Catholic Church gives us the “true attachment” (vera religio) to it. So it is only in communion with the Catholic Church that individuals, communities, peoples, cities, nations, can be properly “attached.” However, Augustine’s integralism also provides a realistic measure for the Catholic to judge regimes as more or less ideal, on a scale. In Augustine’s “alternative” definition of a republic, he argues that Catholics can and will need to use the relative peace of cities whose orders will be judged better or worse according to their “common objects of love.” That is, in non-ideal regimes, Augustine encourages the integralist to help move his neighbours from low to high, from loving vice to loving virtue, from self-centred order to God-centered order. . . .

I'm (still) sympathetic to the view that American-style constitutional democracy - correctly understood and practiced -- is ("relative[ly]" speaking) a more-ideal non-ideal regime.  But, of course . . . I could be wrong! 

January 15, 2018 in Garnett, Rick | Permalink

"The Metaphysics of Democracy"

Like a lot of people in the social-media-sphere these days, I'm reading and thinking about "liberalism", democracy, Catholicism, political theology, statism, integralism, pluralism, . . . papal kidnappings, etc.  I hope other MOJ-ers will weigh in on some of the various posts and essays that have been attracting a lot of attention.

This particular piece, "The Metaphysics of Democracy," by Thomas Joseph White, O.P., in the February issue of First Things, was of particular interest to me this weekend.  Here's a bit:

Liberalism began as a political project that sought to curtail the role of religion in public life. Religious impulses haven’t proven easy to expel, however, even in secular societies. Contemporary secular liberalism aspires to be a universal project that supplants traditional religion and relegates it to the private sphere. Paradoxically, this process frustrates the spiritual desires of many modern secular people, who are unsatisfied with thin consumerism and wish to participate in something greater than themselves. Their mounting rejection of the liberal project has precipitated a crisis, one felt most acutely in the political realm. It has taken the form of a resurgent nationalism, an inchoate response to the suppression of faith that is inadequate and perhaps dangerous. We need to address the weakness of liberal modernity differently, which means metaphysically. No doubt, an appeal to metaphysics strikes many as strangely abstract and inconsequential. Politics is the realm of action, and people want to see church leaders, politicians, lawyers, and columnists fighting for religious causes. One can sympathize with this instinct, but it ignores the deeper problem. The dispute over metaphysics was the concrete issue from the beginning. It always has been. . . .

I have tended to the view -- and, certainly, I might well have been mistaken -- that "liberalism" can (and should) be regarded and engaged as something (relatively) thin and procedural -- as involving "articles of peace, not of faith."  Many smart people -- Legutko, Deneen, Vermeule, etc. -- are calling this view into question.  We'll see . . . .

January 15, 2018 in Garnett, Rick | Permalink

Friday, January 12, 2018

Perry Dane on "Establishment and Encounter"

I always learn from Prof. Perry Dane's work.  Here is a recent paper his, posted at SSRN:

One of the great puzzles in the law of “religion and law,” considered normatively, is the profound and dramatic diversity, even among Western nations, of the basic norms governing religious establishment and disestablishment and the institutional, financial, and expressive relationships between religion and state. One challenge, then, is to articulate a sort of normative minimum that respects that diversity but also provides a language by which we might begin to assess specific religion-state dispensations. The principles of liberal democracy, including religious liberty, are one important pillar in constructing that normative minimum. But this essay argues that we also need to look elsewhere, to a different perspective that is both older and broader than the discourses of democracy and rights. In that view, religion and state are distinct sovereign realms engaged in an existential encounter. The encounter can take various forms. Nevertheless, church and state must, in a deep sense, respect each other’s essential independent dignity. The church should not subsume the state, and the state should not subsume the church. With this master idea in mind, we can at least begin to appraise specific religion-state dispensations by the spatial metaphors at their heart. Thus, both American separationism – with its metaphor of a “wall” between church and state – and English religious establishment – which has been described as taking the form of an “interlocking jigsaw” – fare well, at least in principle. But French laïcité, whose roots go back in part to a different metaphor – “The State is not in the Church, but the Church is in the State” – does not.

Perry's use of the term "encounter" reminds me of my former colleague and mentor Bob Rodes's use of "nexus" and "dialogue" in the church-state context.  I wrote a short paper about Rodes's approach here:

The idea of church-state separation and the image of a wall are at the heart of nearly every citizen's and commentator's thinking about law and religion, and about faith and public life. Unfortunately, the inapt image often causes great confusion about the important idea. What should be regarded as an important feature of religious freedom under constitutionally limited government too often serves simply as a slogan, and is too often employed as a rallying cry, not for the distinctiveness and independence of religious institutions, but for the marginalization and privatization of religious faith. 

How, then, should we understand church-state separation? What is the connection between separation, well understood, and religious freedom? What is the place, or role, of religious faith, believers, and institutions in the political community governed by our Constitution? With respect to these and so many other interesting and important questions, the work of Professor Robert Rodes has been and remains a help, a challenge, and an inspiration. 

This essay is an appreciation, interpretation, and application of Professor Rodes's church-state work. In particular, it contrasts the church-state nexus that he has explored and explained with Jefferson's misleading but influential wall metaphor. After identifying and discussing a few of the more salient features of this nexus, it closes with some thoughts about how the leading themes in Rodes's law-and-religion writing can help us better understand and negotiate one of today's most pressing religious freedom problems.

January 12, 2018 in Garnett, Rick | Permalink