Tuesday, May 23, 2017
My friend and former student Conor Dugan has this review up, at Catholic World Report, of Rod Dreher's The Benedict Option. It's worth a read. I think Conor's does a better job than most reviews of "getting" what (it seems to me) Dreher is proposing. In keeping with what many of us here at MOJ have been writing for years, Conor hones in on the centrality of anthropology:
The first chapters of The Benedict Option are largely diagnostic, an assessment of where we are and how we got here. Contrary to critics of the book, Dreher’s diagnosis is not overly pessimistic or declinist (nor is it, as one virtue-signaling academic claimed, a lament for a white-Christianity that is no longer), but realistic. Indeed, while I can understand criticisms of Dreher’s proposal for how we ought to respond to the barbarism that we face, for the life of me, I cannot understand how people can reject his assessment of the world as it is now. We might not like it, but the portrait Dreher paints seems largely accurate. ...
We've forgotten what nature is—the sheer givenness of nature and its intrinsic meaning and intelligibility. As Pope Benedict stated beautifully in his last Christmas address to the Curia as Pope:
[T]he attack we are currently experiencing on the true structure of the family, made up of father, mother, and child, goes much deeper. While up to now we regarded a false understanding of the nature of human freedom as one cause of the crisis of the family, it is now becoming clear that the very notion of being – of what being human really means – is being called into question. . . . [S]ex is no longer a given element of nature, that man has to accept and personally make sense of: it is a social role that we choose for ourselves, while in the past it was chosen for us by society. The profound falsehood of this theory and of the anthropological revolution contained within it is obvious. People dispute the idea that they have a nature, given by their bodily identity, that serves as a defining element of the human being. They deny their nature and decide that it is not something previously given to them, but that they make it for themselves.
Monday, May 22, 2017
Lumen Christi recently hosted an excellent event on Richard Helmholz's most recent book, "Natural Law in Court." In addition to Helmholz, the other panelists were Michael Moreland (moderating) and Jeff Pojanowski.
I post here the written version of my comments on the book in raw, unedited form. Lumen Christi will also release a video of the event. The written comments do not include my sense (delivered orally) that the book accomplishes the near-impossible by presenting the caselaw of late-medieval Piedmont, for example, in a way that is elegant and readable, indeed absorbing.
Pojanowski, in a tweet the morning of the event, and without having seen my remarks, teased that I would offer a natural-law defense of the administrative state. If I am to be condemned in any event, I might as well be hanged for the full sheep, and I think I'll take the lamb as well.
Dick Helmholz says that "insofar as this book has a unifying theme," it is that "practical limitations repeatedly stood in the way of natural law's dictates." What exactly are these "practical limitations"? Dick clearly sees them as extrinsic to the natural law, and variously refers to them as "practical," "pragmatic," having to do with "consequences," resting on "public utility" or the "good of the community" and so forth. It is not wholly clear in what sense they are supposed to be an antonym of the natural law.
I want to suggest a somewhat different way of thinking about this, which is that the "practical" limitations Dick refers to are themselves solidly grounded in and indeed part of the natural law. If that is right then Dick has, perhaps surprisingly, undersold the natural law with this thesis. That is, the legal arguments he codes as practical limitations of the natural law are themselves a working-out of commitments within the natural-law tradition. The claims of lawmaking in the service of overall public utility themselves have unimpeachable natural law credentials. Indeed, at the end I will venture to suggest that something like judicial deference to the reasoned policy choices of lawmakers is itself an entailment of natural law theory.
Let me offer two ways of cashing out the suggestion that these practical limitations are themselves part of the natural law. The first way sounds in welfare economics, the second way sounds in (what we would today call) administrative law.
As to welfare economics, in many of the cases Helmholz discusses, the courts applying "practical reasoning" are reaching results, and indeed offering arguments, that can be understood comfortably in welfare-economic terms. Welfare economics is, of course, a moral theory, one that rests upon simple axioms claimed to be accessible to the natural reason of all.
Let me give one example of such an axiom: the Pareto principle, which in its weakest form says (I will simplify for present purposes) that a policy or legal rule improves upon the status quo ante if and only if it makes at least one person better off, and no one worse off. There are odd and rather contrived cases in which the principle may not hold, but there are also odd and rather contrived cases in which lying seems like a great idea. In the normal central cases, natural reason suggests that lying is a bad idea and also suggests that weak Pareto is almost necessarily correct.
A standard example of the importance of the Pareto principle involves the usury laws Dick discusses throughout. In one example, courts upheld an Italian statute allowing moderate rates of interest on a loan. As Bentham would later argue, such a rule makes both borrower and lender better off, if the alternative is not a zero-interest loan, but no loan at all. Indeed risky borrowers with little capital are most advantaged by allowing a positive rate of interest on loans. If we stipulate no third-party effects from a commercial transaction between these two parties, then - as Bentham argued - the transactors are better off and no one is worse off. Pareto.
Now there might in fact be third-party effects, and there is a kind of standard conversation to have about what theory of value to plug into the Pareto principle - what exactly do we mean by "better off"? - but the principle in itself is entirely agnostic as among theories of value; it doesn't necessarily presuppose or require, for example, a subjective and hedonic theory of value, although it is frequently discussed as though it does. In any event, my point is different. I don't care whether the laws allowing interest were in fact justifiable on Pareto grounds.
My suggestion rather is that courts allowing such laws, out of concern for the welfare of parties, were doing natural law squarely as it has been understood in the tradition. The Pareto principle, when adopted by a judge or other official as a criterion of social choice, is almost literally "law," at least in Aquinas' sense, because it is an "ordinance of reason for the common good." Where the principle is satisfied, the common good is necessarily enhanced. It is natural law because, again in Aquinas' words, "the first principle of the natural law is that good should be done and pursued, and evil avoided" and the principle aims to do just that.
In other cases, of course, the Pareto Principle doesn't hold. A nice example from Dick's book is the case of the ducal decree of Piedmont that made a city responsible for the losses suffered by a monastery within the city limits. In this sort of case, the losses will fall somewhere, so it is impossible to make someone better off without making someone else worse off.
Here I come to my second perspective. For these difficult cases, Dick gives us, what I can only call, at the risk of some anachronism, an administrative-law approach. That is, a running theme of the book is that in hard cases of this sort, where there is no escape from conflicting claims, courts imposed upon the relevant non-judicial actors a different sort of natural-law obligation sounding in procedural terms: an obligation to offer reasoned justifications for policy making, with a view to the common good. That is, as I read Dick, courts required nonjudicial actors to articulate some reasoned basis for their policy choices, one justified by reference to some rational conception of the common good.
In the case of the Piedmontese monastery, although the city argued that it was contrary to the natural law to hold them liable without fault, the lawyers defending the ducal decree carried the day by arguing, in Dick's words, that the natural law prohibition "applied only to statutes enacted without a good reason. This decree was not one of those." The reason given was that where no actual wrongdoer could be identified, to give the monastery no compensation at all would allow crime to go unredressed. Is that last argument a natural-law argument or a "pragmatic" argument? It seems impossible to put it only in one category or the other. As with the hypostatic union of the divine and human natures in Christ, it is both fully the one and fully the other. In that sense, I think Dick may be undercounting the natural-law arguments in the cases and even understating the influence of natural law.
Finally, although this is not explicit in Dick's text, and I would like to hear his thoughts on it, one gets the sense that courts might uphold the actions of lawmakers in such cases even if the reasoned justification advanced by the lawmakers was not necessarily the same one that the courts would have adopted if forced to make all decisions themselves. Here we have something like "deference" to nonjudicial actors, avant la lettre.
This shouldn't surprise us; I think deference of a sort is built right into the heart of natural law theory. The idea of the determinatio rests on the thought that ordinances of reason for the common good may be underspecified, such that there are multiple reasonable ways of carrying natural-law obligations into execution. Suppose a city, or a noble, has a natural-law obligation to provide a hospital for the poor in the territory. But there are many reasonable ways of carrying out this reasoned purpose to promote the common good, and if they are sensible courts will not interfere with any choice within the realm of the reasonable. As John Finnis puts it:
"A determinatio, if it is just and fit to be authoritative, must have a rational connection to principles of practical reasonableness. But that rational connection is like an architect’s decisions about dimensions; they must be rationally connected to the terms of the commission but these terms, while excluding various options, leave many options entirely open .... [such that] the choice is entirely free."
When lawmakers make choices of this sort -- what I have elsewhere called "rationally arbitrary" choices -- they are completing and fulfilling the natural law project, not overriding it with extrinsic "pragmatic" considerations. Indeed, I would be prepared to argue, but on a different occasion, that when lawmakers exercise this sovereign prerogative of reasoned-but-arbitrary free choice, they most nearly resemble God the Creator.
May 22, 2017 | Permalink
Friday, May 19, 2017
Earlier today, the Lumen Christi Institute hosted a planning session at Loyola University Chicago School of Law. Participants included Michael De Chevalier, Judge Tom Donnelly, Rick Garnett, Dick Helmholz, Tom Kohler, Thomas Levergood, David Lyons, Michael Moreland, Jeff Pojanowski, Adrian Vermeule, and myself. The purpose of the meeting was to begin the process of planning an ambitious project: a series of events and other gatherings aimed at building an intentional community of legal academics who have a greater knowledge of and appreciation for the Catholic intellectual tradition, and so are able to engage that tradition in their work as legal scholars.
There was a general consensus at the meeting that these readings highlight two ideas of immense importance that the Catholic intellectual tradition has to offer law toady: a correct understanding of the human person and of human reason.
To aid the discussion, I prepared a memo on the anthropological question. At Rick’s suggestion I have posted it below and hope that readers find the points made and the questions posed to be of some value.
*** *** *** ***
- “Every system of law reflects certain foundational assumptions about what it means to be human.” John J. Coughlin, O.F.M., Law and Theology: Reflections on What It Means to Be Human From a Franciscan Perspective, 74 St. John’s L. Rev. 609 (2000). Coughlin is not alone in rendering this judgment. Political liberals, such as Isaiah Berlin have likewise said with respect to liberty, that the judgment to restrict certain action “depends on how we determine good and evil, that is to say, on our moral, religious, intellectual, economic and aesthetic values; which are, in their turn, bound up with our conception of man.” Isaiah Berlin, Two Concepts of Liberty, in Isaiah Berlin, Liberty 181 (Henry Hardy, ed. 2002). Others, of course, dispute this claim, or contend that a minimalist understanding of human nature is all that law requires – what Michael Sandel derisively referred to as the “unencumbered self.” See Michael J. Sandel, Democracy’s Discontent: America in Search of a Public Philosophy 6 (1996),
- Despite whatever rhetorical gloss may accompany it, the dominant answer to the question “What does it mean to be a human being?” that underlies American law today is that man is simply a material being: one that eats, and sleeps, and copulates, and defecates. There is no “meaning” to human life or to the universe. There is no transcendence beyond this, other than the desire for “freedom” to realize one’s material desires. From this desire is derived the view that law, when it is exercised in a legitimate fashion, is solely designed to enhance, or secure the fulfillment of man’s material needs and desires. The question of the reality of human freedom and its relationship to law is in fact glossed over. Freedom is simply assumed to exist, and the implications of a thorough-going materialism are largely ignored.
- In God, Philosophy, Universities: A Selective History of the Catholic Intellectual Tradition (2009), Alasdair MacIntyre writes: “One of the tasks of Catholic philosophers now, therefore, has to be that of following the injunction of John Paul II in Fides et Ratio to do philosophy in such a way as to address the deeper human concerns that underline its basic problems, without sacrificing rigor or depth” (p.176). In Fides et Ratio John Paul II argues that the contemporary project of philosophy is to “verify the human capacity to know the truth, to come to a knowledge which can reach objective truth by means of an adaequatio rei et intellectus to which the Scholastic Doctors referred” (FR ¶ 82). He also stresses “the need for a philosophy of genuinely metaphysical range, capable, that is, of transcending empirical data in order to attain something absolute, ultimate, and foundational in its search for truth” (FR ¶ 83).
MacIntyre maintains that Catholic philosophy must respond to the Nietzschean claim that all uses of philosophical argument and the conclusions reached “are unrecognized expressions of and masks concealing a will to power” (p. 177). An adequate response to this charge must give “an account of their philosophical arguments and conclusions that warrants the claim that they have sufficiently good reasons for advancing those arguments and defending those conclusions” (Id.). The substance of such an account is “what is it to be a human being” (Id.). Moreover, “any adequate account of what it is to be a human being will explain how and why human beings are capable of the relevant kind of self-knowledge” (Id.). Furthermore, if Catholics succeed in offering such an account, they would be in a position “to engage with the contentions of the whole range of contemporary major philosophical positions incompatible with and antagonistic to the Catholic faith” (p. 178).
What is the answer to the question “What is it to be a human being?” offered by the leading schools of jurisprudence in the contemporary academy?: Law and Economics? Legal Realism/Critical Legal Studies? Feminism? Legal Positivism? Do these various schools of jurisprudence adequately respond to the Nietzschean challenge? Or do they succumb to it?
- In Centesimus Annus (1991), John Paul II confronts a philosophical and political system then dominant in the West, namely, socialism. He states that “the fundamental error of socialism is anthropological in nature,” subordinating the individual to “the functioning of the socioeconomic mechanism,” eliminating the personal responsibility of man “in the face of good and evil” and so reducing man “to a series of social relationships [in which] the concept of the person as the autonomous subject of moral decision disappears” (CA ¶ 13). Pointedly, John Paul observes, “from this mistaken conception of the person there arise both a distortion of law [sic], which defines the sphere of the exercise of freedom, and an opposition to private property” (Id.).
- We may, perhaps, think about how the Catholic intellectual tradition can be brought to bear on different aspects of law through the lens of “culture” that John Paul II proposes in Centesimus Annus ¶ 24. He begins by noting that capitalism, as practiced in much of the West actually “agrees with Marxism, in the sense that it totally reduces man to the sphere of economics and the satisfaction of material needs” (CA ¶ 19). Contrary to the shared materialism of these two competing political systems, “it is not possible to understand man on the basis of economics alone” (CA ¶ 24). Rather, “[m]an is understood in a more complete way when he is situated within the sphere of culture through his language, history, and the position he takes toward the fundamental events of life, such as birth, love, work, and death. At the heart of every culture lies the attitude man takes to the greatest mystery: the mystery of God. Different cultures are basically different ways of facing the question of the meaning of personal existence. When the question is eliminated, the culture and moral life of nations are corrupted” (Id.).
How does American law conceive of and respond to “the fundamental events of life”: birth, love, work, death? How do our law and legal institutions respond to the mystery of God? What is the answer to the fundamental events of life posed by the leading schools of jurisprudence in the academy today?: Law & Economics? Legal Realism/Critical Theory? Feminism? Legal Positivism?
- Coughlin flushes out what he describes as a Franciscan anthropology (pp. 624-626) which, he says, in contrast to the anthropology evidenced in Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992), “teaches that true freedom subsists not in the assertion of individuality alone, but from participation and solidarity with others in a common endeavor” (p. 625). This anthropology “offers the law the insight that legal relationships need not be defined exclusively in terms of individual rights” but that these freedoms must be balanced with responsibilities (Id.). He notes that “[a] system of law that is primarily concerned with individual rights may not readily enhance the goal of supporting family life” and that the language of individual rights “may result in a legal culture that seems hostile to the family unit” (p. 626).
In what other ways does the materialist anthropology implicit in American law distort law and so fail to support the human person and the common good of society?
May 19, 2017 | Permalink
Daniel Webster observed that “Christianity, general, tolerant, Christianity, Christianity independent of sects and parties” was the foundation of our liberties and legal system. In the spirit of this tradition, I have explained in my scholarship that the law must zealously guard religious liberty for all, while the substance of law should be based on principles of truth knowable by and accessible to all and not on principles unique to one faith. In other words, a Christian-based jurisprudence does not inherently involve the imposition of uniquely Christian principles and, thus, is not theocratic. This Essay responds to direct challenges to religiously affiliated educational institutions and explains why a principled pluralism rooted in the enduring traditions upon which this nation was built must include accommodating the right of religiously affiliated institutions to act in accordance with their faith principles.
Timely and important.
Thursday, May 18, 2017
Apropos our upcoming Anglo-Russo comparative tradition and traditionalism conference, it seems Time Magazine has a late developing interest as well.
But I'm afraid the conference is closed to the media.
Wednesday, May 17, 2017
As Rick noted, I'll be part of an event in Chicago tomorrow sponsored by the Lumen Christi Institute with Adrian Vermeule and Jeff Pojanowski on Richard Helmholz's book Natural Law in Court: A History of Legal Theory in Practice. Details here. I noted a couple years ago a review by John Goldberg of the book when it was published, and the event should be an interesting exploration of the themes in the book as well as a celebration of the remarkable career of Dick Helmholz.
Tuesday, May 16, 2017
I've posted a new paper that might interest MoJ readers, How Should a Law School's Religious Affiliation Matter in a Difficult Market? Put simply, I aim to help deans and faculty "explain why prospective students who are told repeatedly that law school is a risky proposition should care that our law schools have religious affiliations."
Here's the abstract:
For religiously affiliated law schools, a broad and deep understanding of professional formation should lie at the heart of our reason for being and should grow out of our own religious traditions, allowing us to educate the whole person. Articulating and cultivating this deeper understanding of professional formation is essential for deans of religiously affiliated law schools today as we seek to demonstrate the connection between our religious identity and the value proposition our schools offer to our current and prospective students.
Feedback is welcome.
Rod Dreher's recent book, The Benedict Option, is an interesting meditation on the future for Christians in what he describes as a post-Christian culture and society. In this extended, candid, and far-ranging interview, my colleague, Mark Movsesian, discusses the book's claims with Rod and much else that may interest MOJ readers. A bit:
Movsesian: I wonder if we could talk about tradition, which runs like a red thread through your book. You argue that it’s necessary for Christians to return to tradition in order to resist “liquid modernity,” which denies the value of all attachments and identities except those individuals freely choose for themselves. In liquid modernity, the only thing that has meaning is momentary individual choice. This is quite destabilizing for individuals and for society; that’s where tradition can be helpful.
As co-director of the Tradition Project, I have sympathy for your view! But I think there’s a paradox about tradition in a pluralist society like ours. In such a society, tradition is itself a matter of individual choice; there’s no avoiding it. Tradition is just one available option among many for an individual to choose; in the end, each of us is free to choose tradition or to reject it; to choose it and then reject it; or to choose some aspects of it and not others. This is true even of people brought up in a tradition—like the kids attending classical Christian schools today. What do you make of this paradox?
Dreher: There’s no escaping it. I am quite aware of the near-absurdity of my own personal case: a 50-year-old man raised a nominal Methodist, a convert to Catholicism in my mid-20s, converting to Orthodox Christianity at 39, and having moved around the country a great deal for my career, writing a book in praise of tradition. Yet … what else is there? Charles Taylor says that we all live in a secular age, which he defines as the awareness of the possibility that we don’t have to live the way that we do. We cannot escape choice.
This is why our St. Benedict, if we are to have one, must be new and very different, as MacIntyre said. The first Benedict emerged in a West that was still new to Christianity. Now we have been through the Christian era, and can’t un-see what we have seen. And the consciousness of an ordinary person living in the 21st century can hardly be compared to the way a 6th century layman saw the world conceptually and imaginatively. This point hardly needs elaboration, but it conditions any approach to tradition we make today.
To bring this discussion down to earth, I think a lot these days about my late father and sister, who were in most respects traditionalists without knowing what they were doing. That is, they assumed that the rural way of life they had in south Louisiana was going to continue forever. They were quite intelligent, but they strongly rejected as alien anything that challenged their way of seeing the world. That meant rejecting me, and the things that I loved and stood for, though I didn’t realize how thorough this rejection was until I returned to south Louisiana after my sister’s 2011 death. My dad died in 2015. The family has not held together, for various reasons – and this was something I never expected. I deeply admired the unselfconscious traditionalism that my dad and sister represented. They didn’t theorize this stuff; they lived it. But I can see in retrospect that they believed that force of their iron wills was sufficient to ward off all threats to the things they valued most, especially family and place. It was a tragic mistake. Their rigidity, by which I mean their unwillingness to adapt and to change certain things that needed to be changed for the sake of holding on to the things that really mattered the most – that was the fundamental flaw that doomed the entire thing. They thought that stoically preserving their fortress-like outer walls would keep the interior safe. They were wrong.
It’s heartbreaking and tragic in the fullest sense of the word, and a very Southern tragedy too. But I try to learn from what happened. I suspect I’ll spend the rest of my life trying to learn from what happened. Right now, I think the most basic lesson is the need for discernment in our approach to tradition. There is no substitute for it. We have to know what we have to change so we can conserve what is essential. This is hard.
On the more optimistic side, though, I believe that we are starting to see more and more people realizing that the future is not determined. Yes, I think we have to be aware of all that is against us in post-Christian modernity, but we also have to be aware that God can surprise us – and we can surprise ourselves. I mean, look, Napoleon closed the monastery in Norcia, St. Benedict’s hometown, after at least eight centuries of constant presence there. For nearly 200 years, there were no monks. And then, at the turn of the millennium, a handful of American Benedictines who wanted to live in the old Benedictine way re-opened it. Now they have a thriving community of 16 monks. The average age is 33. Who could have expected that?
In The Benedict Option, I quote one of those monks, Father Martin Bernhard, who left the Texas Hill Country to follow his calling to Norcia. When I visited him there in early 2016, I told him that they are a sign of contradiction to the modern world. He smiled, and said that anybody could do something out of the ordinary if they are willing “to pick up what we have lost and to make it real again.”
The monk told me, “People say, ‘Oh, you’re just trying to turn back the clock.’ That makes no sense. If you’re doing something right now, it means you’re doing it right now. It’s new, and it’s alive! And that’s a very powerful thing.”
God knows it will not be easy to revive traditional Christian life and practices. But again: what else is there?
Tradition and Traditionalisms Compared: A Joint Program of The Tradition Project and the Post-Secular Conflicts Project
I'm pleased to announce this conference, to be held in Trento, Italy on June 12-13, which my colleague, Mark Movsesian, and I are putting on jointly with Professor Kristina Stoeckl of the University of Innsbruck, Professor Pasquale Annicchino of the European University Institute, and Professor Marco Ventura, the Head of the Religious Studies Program at the Fondazione Bruno Kessler.
The conference will compare tradition and traditionalism in the Anglo-American and Russian historical experience (for those who do not know Professor Stoeckl's very fine book on Russian Orthodoxy and human rights, allow me to recommend it), and we're happy to have MOJ denizens Moreland and Vermeule joining us. There is something fitting about American and Russian scholars descending on the Dolomites and the locus of the Concilium Tridentinum to discuss and reflect on the respective traditions that they study.
Friday, May 12, 2017
With incomplete but meaningful progress on wrongful convictions and sentencing reform, a partial return to the traditional expectations of prosecutorial discretion in the interests of justice was a distinctive mark of the Obama Department of Justice. Then-Attorney General Holder began to address the problem of over-incarceration for non-violent offenses by encouraging federal prosecutors to press charges that were tailored to the culpability and circumstances of the defendant, reserving lengthy prison terms for violent criminal and drug kingpins. A bipartisan consensus has been emerging that decades-long prison sentences for low-level drug offenders were contrary to justice, undermined community stability, foreshadowed lifelong problems with the criminal justice system, and imposed massive costs on taxpayers.
Alas, the increasingly retrograde Department of Justice under Attorney General Sessions has swept all of this away and retreated to an unthinking and morally unjust policy of charging defendants with the most serious crimes carrying the highest sentences that can pass the low threshold of probable cause. As the Washington Post reports today, Sessions contends that this allows more flexibility to prosecutors who would be “un-handcuffed and not micromanaged from Washington.” In fact, the Trump political surrogate-cum-Attorney General -- has ordered federal prosecutors to “charge and pursue the most serious, readily provable offense.” So now, contrary to a morally thoughtful system of justice and every study of what works in criminal justice, we retreat to a failed policy that has embarrassed our country with the highest rate of incarceration anywhere in the world and which will destroy more lives and families, impairing rehabilitation and restoration to communities. And just like the doltish “wall,“ we're all going to end up paying for this in ways monetary and otherwise.
Sessions argues that “[w]e are returning to the enforcement of the laws as passed by Congress, plain and simple.” But as I wrote on the topic four years ago (full post here):
No legal, moral, or professional obligation requires a prosecutor -- wielding the awesome power of government to subject a person to captivity -- to charge someone whenever a plausible case can be made that he or she has committed a crime, much less to seek the highest charge (with the highest attendant sentence) that the facts could support. Indeed, there was a time when a prosecutor, as a matter of wise discretion, would choose not to file a charge at all, when the circumstances were extenuating or a criminal solution was not in the best interests of all of those involved in an episode.
May 12, 2017 | Permalink