Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

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Saturday, September 20, 2014

RALS: Religious Identity in a Time of Challenge for Law Schools

[cross-posted from Creo en Dios!

Yesterday I participated in the biennial conference of Religiously Affiliated Law Schools (RALS, for short), conveniently located this year at University of St. Thomas law school. The theme of the conference was Religious Identity in a Time of Challenge for Law Schools.

We covered many topics over the course of the day, including employment and student well-being, scholarship, and the relationship between justice and mercy.

Part of the joy of this conference is the fellowship among those of us who see our faith as an integral part of our lives of law professors, both in and and outside of the formal sessions of the conference. That leads to our deep concern with helping our students discern with God who they will be in the world after they graduate law school and our commitment to model for our students how our faith impacts our professional identity.

One of the statements made early in the day that troubled me is that evidence shows that people enter law school more other-oriented than they leave law school. IF that is the case, law school is doing something drastically wrong and we should be deeply troubled. (In fact, I said during my talk yesterday afternoon that if that is the case for religiously-affiliated law schools, then we should close our doors and stop what we are doing.)

I hope it is not the case that our law students leave more self-centered and with less concern for others than they arrive at law school. But evidence like that cited yesterday should cause all of us who train professionals to reflect on whether we are doing enough to help people grow in their other-orientation and how we might more effectively do so.

September 20, 2014 in Stabile, Susan | Permalink

Wednesday, September 17, 2014

Dreher on Phil Bess, "faith, reason, and urban design."

Catholic "new urbanist" and classical architect Philip Bess is a dear friend and colleague, and I know I've mentioned his work here at Mirror of Justice many times (and, from time to time, vented my friendly frustration with some of the more preening and irritating aspects of some new-urbanist writing).  (Buy his "Til We Have Built Jerusalem" here, after reading my First Things review!)  Here, Rod Dreher interviews Bess and discusses his work.  

Dreher's praise of Bess's work is well-deserved.  That said, in my view, Dreher is a bit too hard on those conservatives who have appropriate reservations about "new urbanist" plans, proposals, and ideology.  So long as "new urbanism" is reasonably seen as travelling moer comfortably with hipster aesthetics and environmental-apocalypse fantasies than with Bess's Aristo-Thomist invocations of the conditions for authentic human flourishing . . . and so long as "new urbanists" appear not-too-keen on large families and relatively uninterested in where the churches and parochial schools fit in to their ideal built environmetns . . . a little skepticism -- even of the friendly kind -- is in order.

September 17, 2014 | Permalink

The Virtues of Consumer Law

I just came across an interesting Call for Papers for the 15th Conference of International Consumer Law, to be held in Amsterdam next summer.  The theme of the conferences is "Virtues and Consumer Law."

Proposals on the following possible topic areas are identified as being especially encouraged, presumably because they represent the "virtues" contemplated by the conference organizers.  Setting aside some qualms I have about the very first one, this struck me as a very interesting list of 'virtues' in this particular field of law.  

- Self-realization (in tourism, air travel or entertainment sector);

- Faith (in public and/or private enforcement of consumer law, in collective redress);

- Curiosity (in e-commerce, telecommunication sector or on innovation and consumer law);

- Compassion (towards vulnerable consumers, in medicine or in clinical trials);

- Frugality (in the banking sector or in financial contracts);

- Fairness (against unfair commercial practices and/or misleading advertising, against unfair contract terms, in protection of SMEs, through good faith and fair dealing);

- Trust (through data protection, on privacy and security issues, through product safety and/or product liability, from behavioural economics perspective);

- Forgiveness (through mediation or ADR);

- Self-development (through education, through services, through consumer sale contracts);

- Hope (against overindebtness, through clean-slate doctrine, by way of insurance).

September 17, 2014 in Schiltz, Elizabeth | Permalink

Caledonian Peronism and Majoritarianism: Two Thoughts about Scottish Independence

Those of us from an Irish Catholic background are inevitably reserved, to say the least, about British Unionism. But as Rick pointed out last week, the prospect of Scotland voting tomorrow to secede from the United Kingdom seems extraordinarily foolish and may, as argued here by Walter Russell Mead, usher in an era of wider political instability that we will all soon regret (and some of the damage may already be done). Two offhand thoughts on this eve of the referendum:

First, rather than a modern domesticated version of Robert the Bruce, the Scottish nationalist movement today seems more a Caledonian variant of Peronism—socially progressive, yes, but also a brew of authoritarianism, economic populism, and class resentment (see Tom Gallagher's piece earlier this summer). Many voting for Scottish independence tomorrow have hopes of creating a Scandinavian welfare state utopia shorn of retrograde English capitalism, but they are more likely to get economic stagnation, debt crises, currency instability, and political turmoil. And as John Haldane wrote here, none of this will be good for the Catholic Church or for religious liberty.

Second and as a matter of political and legal theory, there is something odd about the bare majoritarianism at work in tomorrow’s vote. 50% plus one of Scottish citizens age 16 and older (well, those who live in Scotland—Scots living in other parts of the UK can’t vote in the referendum) can decide to form an independent country and abrogate the 1707 Act of Union with England—and that result binds 50% minus one of Scots. Jeremy Waldron elegantly argues in The Dignity of Legislation (Cambridge UP, 1999) against the arbitrariness of majoritarianism and the legitimacy of Locke's "physics of consent" by majority rule. Fair enough as to normal politics—popular voting for candidates or legislative majorities. Ultimate questions of sovereignty, though, seem to me to require an account of authority and a background political culture that majoritarianism alone can’t provide--a problem rarely (and fortunately so) posed in the modern state. As Tyler Cowen wrote this morning, crudely posing certain questions and asking the people to resolve them (here by bare majority rule) threatens any political order, and independence "might just be a question which should not be asked in such a blatant form." And as he wrote presciently some months ago, "If a significant segment of the British partnership wishes to leave, and for no really good practical reason, it is a sign that something is deeply wrong with contemporary politics and with our standards for loyalties.”

September 17, 2014 in Moreland, Michael | Permalink

The Feast of Saint Robert Bellarmine, SJ

 

Today the Universal Church celebrates the optional feast of Saint Robert Bellarmine—a Catholic intellectual, a faithful priest, and prudent but courageous member of the Society of Jesus. He understood well Father Ignatius’s declaration that the purpose of the Least Society is to strive to defend and propagate the faith and to assist souls in Christian life and doctrine. But, really, is this not the calling of everyone who claims to follow Christ knowing that he or she is a citizen of two cities—the City of God and the City of Man? I hold and profess the view that all Christians, including those who advance Catholic legal theory, are, in one fashion or another, called to similar purpose as was Robert Bellarmine, who was trained in both theology and juridical science (like your humble correspondent). One other important element of Christian life needs to be recounted here as we consider today’s feast observing the life and death of Bellarmine: the Feast of the Exaltation of the Holy Cross which we celebrated this past Sunday. As I was celebrating the Eucharist, I prayed very slowly the words of the Collect: “O God, who willed that your Only Begotten Son should undergo the Cross to save the human race, grant, we pray, that we, who have known his mystery on earth, may merit the grace of redemption in heaven…” This prayer is intensified by the Gospel reading for the feast from Saint John that includes the oft-prayed passage of John 3:16. I am certain these principles of the Catholic faith were an ever-present guiding star of Robert Bellarmine in all that he accomplished and all that he tried to achieve in Christ’s name.

While Bellarmine was a learned man, a bishop, and a cardinal, he was first and last a humble servant of his and our Church who followed Christ in simplicity. Like our current Holy Father, Francis, he was attracted to the plainness of life lived by Saint Francis of Assisi. For us Jesuits, we are reminded how Father Ignatius states in his autobiography how he would like to be as Dominic or as Francis (of Assisi). But Father Ignatius’s exhortation is not limited to Jesuits; I am convinced it applies to all who follow Christ or claim to do so.

Returning to the nexus between the life, discipleship, and the work of Robert Bellarmine, I am certain that he continues to show those of us who dedicate our lives to Catholic legal theory how to seek in our apostolic service the pressing need to meet the grave challenges of our present age with prudence, courage, and fidelity. We cannot take for granted that all we meet and with whom we may labor are practitioners of the same virtues. One essential tool of which I have spoken often in the past, given the vineyards in which we work, is the need for the Catholic Christian to be mindful of the gifts of objective intelligence given to us by the Creator to comprehend the intelligible reality of the world and of the universe. Using these gifts wisely and without reservation should enable those of us who teach human law, as it is intersected by God’s law (we can never get away from our dual citizenship, now, can we?), to do so in a fashion the replicates the way of proceeding utilized by Robert Bellarmine throughout his life. He, too, lived in an age of skeptics fueled by a world of corruption, vainglory, and power-over-right, but he was not deterred from seeking out and collaborating with his fellow disciples and people of good will in his striving for the defense and propagation of the faith and assisting souls in Christian life and doctrine.

May we profit from his example not only on this day but for all the days of our lives.

Saint Robert Bellarmine, pray for us! Amen.

 

 

RJA sj

September 17, 2014 in Araujo, Robert | Permalink

Tuesday, September 16, 2014

Steve Smith: "Die and Let Live: The Asymmetry of Accommodation"

An important, even if not uplifting, essay by Prof. Steven Smith:

In culture war battles over same-sex marriage, one group of scholars (“the moderators”) offers what is held out as a “live and let live” truce: same-sex marriage would be legalized, qualified by exemptions to protect groups and individuals who oppose same-sex marriage on religious grounds against liability or legal sanctions. The appeal of this proposal lies in part in its implicit claim to symmetry. The compromise– namely, same-sex marriage with religious exemptions-- is said to respect the legitimate interests of each side. Consequently, the moderators view both religious conservatives and secular egalitarians who decline to embrace the compromise as intransigent, and as unreasonably attempting to “impose their values” on others.

This essay criticizes the moderators’ implicit claim of symmetry. In fact, neither rejection of same-sex marriage nor legalization qualified by exemptions is equally respectful of each side’s interests. Both sides understand this fact, and they understand that it is better to be in a position of granting accommodation than to be in need of accommodation. In addition, the parties face different risks if they find themselves in a politically subordinate position and hence in need of accommodation. The final section of the essay considers the likelihood that either party, if politically dominant, will be inclined to accommodate the other party. While emphasizing that the question is inherently speculative, the essay argues (contrary to much academic opinion) that Christian conservatives have both the intellectual resources and the historical experience to support an attitude of tolerance. Whether secular egalitarianism has these toleration-supportive ingredients is more uncertain

September 16, 2014 in Garnett, Rick | Permalink

Call for Papers: "The Scope of Religious Exemptions"

The Bowling Green Workshop in Applied Ethics and Public Policy will take place in Bowling Green, Ohio, April 17th-18th, 2015. The keynote speakers are Robert Audi (University of Notre Dame) and Andrew Koppelman (Northwestern University).

Those interested in presenting a paper are invited to submit a 2-3 page abstract (double-spaced) by November 15th, 2014. We welcome submissions in all areas in applied ethics and philosophical issues relevant to this year’s conference theme: the scope of religious exemptions. We are especially focused on papers that address normative questions about religious exemptions, including the moral-philosophical justifications for religious exemptions and how often and to whom religious exemptions should be granted. We will consider multiple approaches to the topic, not merely in political philosophy and political theory, but normative ethics, metaethics and applied ethics.

More information is here.

September 16, 2014 in Garnett, Rick | Permalink

"Telling the Truth about Aleksandr Solzhenitsyn"

Over at Law & Liberty, there's a podcast with Daniel Mahoney about Aleksandr Solzhenitsyn, his work, his reception, his legacy, etc.  Here's part of the intro:

Comes now the great Daniel J. Mahoney, author of penetrating intellectual biographies of Bertrand de Jouvenel, Raymond Aron, and Charles de Gaulle, among other books, to discuss his latest work, The Other Solzhenitsyn. Mahoney, co-editor of The Solzhenitsyn Reader, provides us in this discussion a tremendous introduction to the Russian dissident writer’s corpus of writings and a rebuttal to his many critics.

We might say that most western writers who, from their position of faux outrage, frequently critique their governments, societies, and cultures have Solzhenitsyn envy, earnestly desiring that their work could perform something even close to the role of the Russian anti-communist writer par excellence. Not that they admire Solzhenitsyn’s political and moral philosophy, and his belief that freedom is ultimately born of spiritual commitment, but that no one will ever say of their work that it put a “sliver in the throat of power.”  Such was the praise given Solzhenitsyn after the publication of One Day in the Live of Ivan Denisovich in 1962. . . .

Whenever those polls and quizzes asking for "lists of 10 books that changed your life" or "that stayed with you" circulate on Facebook, Ivan Denisovich is always one of my ten.  (I wrote on of my college-application essays on his Cancer Ward and remember clearly buying "Warning to the West" at a bookstore in Cambridge, MA during a Spring Break visit to a friend there.  Yes, I am a geek.)  

Solzhenitsyn was, of course, a hero to the anti-communists in the United States during the Cold War, but his popularity waned as he turned his critical idea to western materialism, consumerism, etc.  Also, many critics today see him as "anti-democratic, theocratic, and pro-Putin, to name a few[.]"  In the podcast, Mahoney discusses and responds to these critics' claims.

September 16, 2014 in Garnett, Rick | Permalink

Viability, dependency, and abortion

James Mumford has a thoughtful piece in The Telegraph ("It's time to rethink our attitude to abortion") that engages the widespread but (he thinks, and I agree) misplaced emphasis placed on the "viability" of unborn children in abortion law and in the abortion debate.  Here's a bit:

But why should being capable of being born alive – being able to survive the onset of breathing and oral feeding – be the make-or-break threshold? Viability may have solidified as a legal concept, but the science shows that in reality it’s a moving target. . . .

More fundamentally, what feminist thinkers have shown is the fact that viability constitutes a profound category mistake. Human beings arrive in the world in a state of radical dependency. To insist they reach a stage of independence before we confer rights upon them is to assume, in the words of feminist political philosopher Seyla Benhabib, a "strange world" in which "individuals are grown up before they are born". . . .

Mumford's piece resonates strongly, I think, with what many of us here at MOJ (and many others, too) have said about the content of the Church's "moral anthropology," i.e., that it provides an account of the human person, of human dignity, and of human destiny that is not built on autonomy and self-sufficiency so much as on dependence and relationships.  (For an essay of mine that touches on this account, go here.)  

September 16, 2014 in Garnett, Rick | Permalink

Monday, September 15, 2014

Freedom of Religion and the Freedom of the Church: My Response

Over at Law & Liberty, I have a reply posted to the three very thoughtful responses authored by Donald Drakeman, Paul Horwitz, and John Inazu.  Here's the reply (and you can access the original piece and the responses there).  A bit:

. . . Drakeman’s [response] serves to underscore the importance of insisting that there is more to religious freedom than an accommodations-and-exemptions regime. After all, such a regime always and inevitably (and understandably) involves the balancing, by the state, of the costs and benefits, to and for the state, of accommodations and exemptions. A political community that loses sight of the many ways that religious institutions’ and actors’ religious and religiously motivated activities serve the common good is going to be less likely to accommodate and exempt. It is important, then, to emphasize that a moral and legal commitment to religious freedom also involves an appreciation and (enforced) respect for the limited but still real “autonomy” of religious institutions and actors as well as for the limits on the state’s regulatory authority. . . .

Paul Horwitz – whose important book, First Amendment Institutions, has both shaped and challenged my thinking about the subject under discussion – is right to remind readers that “religious institutionalism” is “not necessarily a libertarian position”; it does not require or even invite “disdain for the state”; it is does not reflect or imply “complete skepticism about or outright hostility to government.” It does, I think, necessarily involve (as Horwitz says) the ungrudging acceptance – indeed, the welcoming – of non-state authorities and of occasional “incongruence” (to borrow Nancy Rosenblum’s term) between, on the one hand, the rules that govern and the goals that move the liberal state and, on the other, the practices and values of non-state groups, communities, associations, and institutions. As my colleague, Robert Rodes, has put it, there is a “nexus” between religious and political authorities that involves both cooperation and contestation, mutual support and resistance. . . .

. . . Inazu . . . expresses some doubt – friendly doubt, I think, but doubt nonetheless – about the “constitutional” and especially the “theological” limits on what I called the “translation, not transplantation” of the “freedom of the church” into present day law and practice. He writes, “The freedom of the church is first and foremost a theological argument. Some theological arguments are at least partially translatable; indeed, we have seen examples of this kind of translation unfold within American law through concepts like conscience and forgiveness. But other theological concepts are less susceptible to translation from the theological perspectives out of which they emerge.” I take the point, but would respectfully maintain that Inazu is underestimating the political, legal, and social dimensions of the idea and therefore overestimating the theological limits to translation. To be sure, Christians and Christianity have an account of what “the Church” really is that is not political and that is about the “reality of Jesus Christ”, not “the special nature of ‘religion.’” They – we – are called to bear witness to that reality and not to – in Inazu’s words – “domesticat[e]” it or make it more suitable to moderns or comfortable to liberals. Nevertheless, I continue to think that there is plenty of content in the “freedom of the church” idea, argument, proposal, and struggle that is not only translatable to, but urgently needed for, the this-side-of-Heaven project of ordering our lives together.

September 15, 2014 in Garnett, Rick | Permalink