Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Monday, January 21, 2019

Supreme Court review of Indiana law prohibiting abortion based on race, sex, or diagnosis of disability

In case you missed it in the haze of the New Year celebrations, here's an excellent analysis (by Notre Dame's Carter Snead and Mary O'Callaghan) of the case argued before the Supreme Court on Jan. 2, challenging Indiana's law prohibiting abortions based on a child's "race, color, national origin, ancestry, sex, or diagnosis or potential diagnosis of . . . Down syndrome or any other disability." (See 7th Circuit opinion in Planned Parenthood of Indiana and Kentucky v. Commissioner, Indiana State Department of Health striking down the law here.)  Snead and O'Callaghan point out that the 7th Circuit's denial of the petition for an en banc rehearing of the case includes a strong dissent by Judge Easterbrook, who argues:  "Using abortion to promote eugenic goals is morally and prudentially debatable on grounds different from those that underlay the statutes Casey considered."
Snead and O'Callaghan argue: 

Judge Easterbrook is correct as a legal matter about the meaning of Casey. More importantly, the ramifications of leaving this narrow question unsettled far outstrip those associated with interpretation of the Medicaid Act. Regardless of our nation’s polarized views on the policy and politics of abortion, it is clear that our Constitution does not include a right to abort children merely because of disfavored characteristics. The Seventh Circuit’s erroneous decision gets this basic legal question wrong, and leaves the most vulnerable populations among us, born and unborn, susceptible to the view that we have a “moral duty” to eradicate them, that we are “better off” without them, and that their value can be calculated in dollars and cents.

January 21, 2019 in Schiltz, Elizabeth | Permalink

Thursday, January 17, 2019

Karen Pence's new school, Catholic school closings, social trust, and how we got Trump

Rick's post about the sexual morality rules at the school where Karen Pence teaches brought to mind this TAC piece by Tim Carney in which Nicole Stelle Garnett's co-authored book with Margaret Brinig plays an important role. Read all three together. Here's an excerpt from Carney: 

Sure enough, low trust helped to predict Trump support in the early primaries. The core group of Trump voters in the GOP primary ... were by far the mostly likely to say people mostly just look out for themselves.

In elite family-filled suburbs where most people have college degrees, trust actually tends to be high, regardless of stereotypes about gated driveways. Where do we find trusting middle-class or working-class communities? Where most people go to church.

And when the churches start emptying, the trust starts shrinking. Researchers Margaret Brinig and Nicole Stelle Garnett looked into what happened where Catholic schools shut down for reasons that didn’t appear to be low attendance. Maybe the pastor was transferred and not replaced. Maybe the building had to be demolished. These neighborhoods, shortly after the school shut down, saw increases in public drinking, drug dealing, and drug use. Graffiti, litter, and abandoned buildings became more prevalent.

January 17, 2019 in Walsh, Kevin | Permalink

Regarding the controversy surrounding Mrs. Pence's new Christian School employer

The news cycle being what it is, there is a story going around -- and being much remarked upon by Blue-Check-Twitter types -- the theme of which is surprise/shock/horror that the Christian school at which Mrs. Karen Pence has a policy of requiring staff and students to act in accord with a variety of familiar, traditional Christian norms regarding sexuality.  (The story to which I linked, like most stories I've seen, says -- incorrectly -- that the school "bans" gay students and employees.)

Two things (at least) are worth noting about this:  First, this story (and others like it) are tactical moves in an effort to "condition the environment" for situations when nominees to federal courts are revealed to have been involved with/sent their children to schools that have policies in place that reflect the abovementioned norms.  Second, this story (and others like it) are tactical moves in an effort by opponents of school choice to -- having largely lost the battle over the "statist monopoly or parental choice?" debate -- cripple voucher and other school-choice programs by pushing legislatures (and enlisting business boycotts and pressure to push legislatures) to exclude from voucher programs those schools that "discriminate."   

January 17, 2019 in Garnett, Rick | Permalink

Legal Spirits Podcast: Prayer in a School Board Meeting

Mark Movsesian and I have this podcast as part of our Legal Spirits series, concerning a prayer practice at school board meetings in Chino Valley, California. The 9th Circuit panel struck down the practice, holding it as outside the ambit of Town of Greece v. Galloway. In connection with the en banc court's refusal to rehear the case, there was a subsequent statement by Judge O'Scannlain (and joined by 7 active judges on the 9th Circuit) severely criticizing the panel's decision and discussing the definition and scope of the tradition of legislative prayer marked out by Town of Greece.

We talk all about it in the podcast.

January 17, 2019 in DeGirolami, Marc | Permalink

Saturday, January 12, 2019

Elly Brown on Viewpoint Diversity, Civil Dialogue, and Conversion

I recently posted here at Mirror of Justice remarks offered by Allison Berger in connection with Princeton University's "She Roars!" alumnae reunion. I am now posting remarks at the same event by Elly Brown, another Princeton alumna. Elly was one of the top students of her year, graduating summa cum laude in Politics and earning various other awards and distinctions. As an undergraduate, she was a leader in Princeton Pro-Life and the Anscombe Society (Princeton's student group advocating chastity and sexual integrity). In her remarks, Elly discusses her efforts to promote civil dialogue with supporters of abortion and others with whom she disagrees and makes some valuable points about truth-seeking and conversion--including her own conversion to Catholicism. 

Remarks of Elly Brown

I would like to begin with a poll. I’m sure that all of us are aware of online comment sections under articles or posts on social media. I am curious: how many of you think that these comment sections are a reflection of the liberal arts ideal of thought diversity and the free exchange of ideas? Why do we not find this to be the case? After all, comment sections often represent a diverse array of viewpoints. Still, it seems that something is missing, and that mere viewpoint diversity is not enough. I argue that comment sections do not live up to the liberal arts ideal because they do not view persons as truly persons – that is, those having an intellect and a will, who are more than the summation of whatever views they are currently expressing. Comment sections dehumanize, reducing interlocutors to the views of the “enemy,” to someone who must be taken down. I further argue that if a University does not have a fuller picture of the human person in addition to viewpoint diversity, the University is nothing more than a real-life comment section, with the “enemy” mindset that we so often find online.

Thankfully, Princeton in many ways has overcome this comment section, enemy mindset, though there are certainly areas for improvement as well. For the remainder of my talk, then, I would like to lay out some of the specific ways – taken from my own experience as a Princeton student – that Princeton has indeed lived up to the liberal arts ideal, and then draw from these experiences concrete proposals that could lead to more improvement.

First, I have witnessed many successes at Princeton regarding thought diversity on women’s issues. In the larger public sphere, the comment section mentality is often experienced most acutely surrounding women’s issues. Often, women are dehumanized and expected to hold a specific predetermined set of beliefs on social and political issues, with little regard to their underlying humanity and the fact that they have intellects that can guide them to their own conclusions. Furthermore, women who disagree with this predetermined set of beliefs are too often viewed as the enemy to be taken down. The tendency for this mindset is perhaps greatest when it comes to the issue of abortion. As president of Princeton Pro-Life my first through third years at Princeton, I felt the consequences of this mindset to a certain degree. Many expressed confusion about why I would take up such a role, since being a pro-life woman leader seemed to be an inherent contradiction working within the comment section framework, anyway.

One of my main projects as president was overcoming this mindset of viewing others – especially other women – as the enemy for holding differing viewpoints on these hot button issues. To do so, Princeton Pro-Life began collaborating with the Women's Center, which generously accepted multiple offers to host and co-sponsor our events. My first year, the Women's Center co-sponsored a lecture on the ethics of abortion and women’s rights. My sophomore year, the Women*s Center co-hosted a “Pro-Life, Pro-Woman” open house to discuss pro-life feminism with the broader campus community and find points of agreement among students with diverse viewpoints. Later, Princeton Pro-Life and the Women's Center jointly hosted a screening of the documentary “Pro-Life Feminist” featuring Destiny Herndon-De La Rosa – the president of New Wave Feminists, which was kicked out of the Women’s March for being pro-life. After the film screening, the Women's Center held a discussion about the film and how those of differing viewpoints can collaborate to improve women’s lives and uphold human dignity. All of these efforts brought together segments of campus that may have otherwise viewed each other as enemies for having different views. By having these conversations, participants saw each other not as enemies, but as human beings mutually seeking the good.

These successes notwithstanding, there are ways the University could do more to encourage more of these humanizing discussions. Primarily, the University could encourage centers (such as the Women*s Center and Carl A. Fields Center) to intentionally and more often host discussion with the aim of bringing together diverse viewpoints in order to similarly overcome the enemy mentality. Doing so would reduce campus discord surrounding contentious issues and foster fruitful and productive discussion beyond the comment section practice of merely trying to defeat the other side.

Another encouraging feature of Princeton that is a testament to its viewpoint diversity is the ubiquity of conversions – including my own. By conversion, I refer not only to religious conversion, but also philosophical and political conversion, as well as more small-scale changes in perspective. Conversion can be a scary word, but in practice, it really amounts to a receptivity to the truth and whatever destination to which it takes you. I myself converted to Catholicism, as well as changed my mind on a number of contentious political and social issues. At Princeton, though, my convert status made me the norm, not the exception. I witnessed the conversions – big and small – of many if not most of my friends and classmates, which indicates the receptivity on the part of others to hearing arguments and an openness to being persuaded by good ones. The openness to conversion on the part of my peers is the antithesis of the comment section mentality, because it displays a willingness to move beyond the category of enemy when considering views other than one’s own.

To further encourage this culture of conversion, I propose that professors and preceptors should more explicitly teach their students the importance of charity – a willingness to consider an argument in the best light and fully understand it before attacking or critiquing it. I admit, being a charitable student and scholar is not always easy. My own natural scholarly tendency is to locate the enemy and attack. However, explicitly encouraging students to be charitable in the classroom will certainly translate into a greater respect for the diverse viewpoints of others.

In short, based on my experiences as a student, there is much to celebrate at Princeton. In many ways, Princeton successfully fights the comment section mentality and fosters a culture that not only tolerates but respects diverse views. And with a more intentional focus on fostering humanizing campus-wide discussions as well as the virtue of charity, Princeton can do even better.

January 12, 2019 | Permalink

Friday, January 11, 2019

Pappin on Rosenblatt, "Liberalism Against the Church"

Add to the conversation on liberalism, Catholicism, integralism, etc., this First Things review, by Gladden Pappin, of Helena Rosenblatt's The Lost History of Liberalism.  He concludes with this:

The political development of Europe,” Pierre Manent once wrote, “is understandable only as the history of answers to problems posed by the Church.” The Lost History of Liberalism reinforces Manent’s observation even while Helena Rosenblatt colors the goals of early liberalism in golden hues. However noble early liberalism’s project of moral improvement may have been, its self-perception always included the specific aim of overthrowing the Church. As that institution has suffered under liberal advances, so has the morality and liberality that liberals claim they want to secure.

Though this is hardly its intention, The Lost History of Liberalism offers a counterpoint to the hopes of Catholics seeking rapprochement with liberalism. In spite of her best efforts to make liberalism’s interest in public morality stand on its own two feet, Rosenblatt shows that liberal public morality is always in opposition to the accounts of morality and public life offered by the Church. Liberals have never been seriously interested in the ways Catholics have sought to make peace with liberalism. The more liberals return to their roots, the more apparently shared ground will give way. The future lies in anti-­ecclesiastical liberal ressourcement on the one hand, and anti-liberal ­ecclesiastical ressourcement on the other. 

As one of those who continues to resist some aspects of the current Catholic (and other) critiques of liberalism (properly understood, which is to say, as I understand it!), I have to say this is bracing stuff. Stay tuned!

January 11, 2019 in Garnett, Rick | Permalink

The Peter Steinfels article on the PA grand-jury report

I am very glad that Commonweal published this piece by Peter Steinfels ("The PA Grand-Jury Report:  Not What It Seems").  The article should be required reading for Catholics and non-Catholics, journalists and citizens.  Peter makes, among other things, some of the points I tried to make (but he makes them better) in this post ("Disentangling the Crisis") a few months ago.  It's a long read, but -- again -- a must-read nevertheless.

My sense is that many Catholics are reluctant to take issue with reports and news stories about clerical abuse and episcopal cover-ups, for fear of seeming to minimize or excuse the grave wrongs committed by some. This reluctance is understandable. And yet, it is very important that Catholics and others be told the truth and understand what did, and what did not (or, what might not have) happen.  Here's a bit, from near the end:

What does the report document? It documents decades of stomach-churning violations of the physical, psychological, and spiritual integrity of children and young people. It documents that many of these atrocities could have been prevented by promptly removing the credibly suspected perpetrators from all priestly roles and ministry. It documents that some, although far from all, of those failures were due to an overriding concern for protecting the reputation of the church and the clergy and a reckless disregard for the safety and well-being of children. It also documents that a good portion of these crimes, perhaps a third or more, only came to the knowledge of church authorities in 2002 or after, when the Dallas Charter mandated automatic removal from ministry. It documents, well before 2002, many conscientious attempts to determine the truth of accusations and prevent any further abuse, often successful though sometimes poorly executed or tragically misinformed. It documents significant differences between dioceses and bishops and time periods in the response to allegation of abuse. It documents major changes in vigilance and response in some dioceses during the 1990s and, as far as the evidence shows, dramatic changes after 2002.

What does the report not document? It does not document the sensational charges contained in its introduction—namely, that over seven decades Catholic authorities, in virtual lockstep, supposedly brushed aside all victims and did absolutely nothing in the face of terrible crimes against boys and girls—except to conceal them. This ugly, indiscriminate, and inflammatory charge, unsubstantiated by the report’s own evidence, to say nothing of the evidence the report ignores, is truly unworthy of a judicial body responsible for impartial justice.

Why the media were so amenable to uncritically echoing this story without investigation, and why Catholics in particular were so eager to seize on it to settle their internal differences, are important topics for further discussion.

January 11, 2019 in Garnett, Rick | Permalink

Thursday, January 10, 2019

Prof. Marcus Cole to be Dean of Notre Dame Law School

Announcement here. This is a great "get" for Notre Dame, and a testament, I think, to the importance of our aspiration, mission, and calling to be a meaningfully and interestingly great Catholic law school.  Stay tuned!  

January 10, 2019 in Garnett, Rick | Permalink

Wednesday, January 9, 2019

Allison Berger on Princeton, the Madison Program, and Viewpoint Diversity at Princeton and Beyond

When Allison Berger was graduated from Princeton, she was honored by the University with a "Spirit of Princeton" award for her outstanding contributions to campus life. Ms. Berger returned to Princeton recently to participate in a panel discussion hosted by the James Madison Program in connection with the University's "She Roars!" alumnae reunion. Other speakers at the reunion included Supreme Court Justices Sonia Sotomayor and Elena Kagan. I am posting Allison's remarks here because I believe she makes important points that are relevant to campus life everywhere--not just at Princeton. -- Robert George

Remarks of Allison Berger

    I was not planning to attend "She Roars!" until the Madison Program stepped in to make this weekend representative and inclusive of Princeton women of all political beliefs, so the Madison Program’s efforts to host this morning's events are already one example of why Princeton is so special.

And this is really a very special treat for me personally - the Madison Program was a primary reason that I applied to Princeton as my first choice college, remarkably now five years ago, and the first “out of class” lecture that I attended my freshman fall was a lecture hosted by the Madison Program with Philip Hamburger asking whether administrative law is unlawful. So I feel like things have really come full circle with being here today.

I want to start by talking about a few ways in which Princeton is not special when it comes to viewpoint diversity. Figure it is best to get the bad news out of the way first and I also think these shortcomings serve to highlight just how impressive and important the strengths Princeton does have are.

The fact of the matter is that on a social and interpersonal level among students, it is not easy to be an outspoken conservative. There are many people who will not be very nice to you at all. A few examples.

My freshman spring, I wrote an opinion piece for our campus conservative magazine, The Princeton Tory. It happened to be about the importance of open and civil discourse on college campuses. A few days after the magazines were distributed to every dorm room on campus, I came back to my room on the third floor of Forbes College and found a copy of the Tory shoved through and hanging off the handle of my doorknob. I pulled it off the knob and found that it was open to the article I had written. To be clear about what happened here, someone read or saw my article in the Tory and in response decided to look up where I lived on campus and send some sort of message to me by piercing my article through my door handle.

Two years later, during my junior spring, I was confronted by a belligerent, intoxicated male student while standing on Prospect Avenue outside my eating club. He looked at me and said “hey, you’re that girl who does all the conservative bleep,” and in a further expletive ridden tirade, yelled at me about how everyone hates me and all the conservatives on campus and that we should just shut up and go away. Substitute any other identity for “conservative” in that stream of abuse and that individual could very well have found himself the subject of a diversity and equity investigation.

In the Princeton ‘meme’ Facebook group, which is a collection of student-generated images captioned with inside jokes about campus life, conservative events and groups I was involved with were the subject of ridicule on at least four occasions, two times of which my full name appeared in the post.

Sometimes students would get into big Facebook political debates, spanning hundreds of comments, typically prompted by a conservative student posting an opinion noncontroversial to at least 50% of America but that was wildly disturbing to most students in the Orange Bubble. On more than one occasion during these online debates, students from the campus left wrote that they were going to screenshot and save the comments that conservatives posted with the threat they would forward the comments to future employers or reporters if anyone ran for or was nominated for public office. So don’t be surprised if 36 years from now, scribbles in high school yearbooks have been replaced by the Facebook comment wars waged by procrastinating Princetonians.

And the disturbing examples continue, from concerted and coordinated efforts by progressive upperclassmen to hose [exclude, black ball] conservative underclassmen from their eating clubs simply for the sin of speaking openly about their views to the vicious ad hominem attacks and accusations of racism or sexism hurled against students who publish conservative articles in campus publications. And there are many more examples but which are not my story to tell.

These things get to you. It is very upsetting to be called a racist or a sexist, or in my case as a woman, a traitor to my gender. The result is that there were many instances during my time at Princeton when my conservative friends and I would be discussing issues and someone would say they wanted to post something on Facebook or write an article or make a certain point at dinner, but in the next breath add that it was not worth dealing with the outrage that would follow or the risk to their campus reputation as simply a good person.

This is bad. And by the way - many people in the broader conservative mediasphere often dismiss campus leftists as “snowflakes” who cannot handle engaging with opposing views. But I don’t think this gives these students enough credit for what their goals are. Yes many demonstrate an inability to engage substantively and respectfully with different opinions, but many also demonstrate zero interest in doing so. Their goal is rather to intimidate conservatives into staying quiet and not adding their voices to the marketplace of ideas, where they could very well change some hearts and minds.

The Princeton administration and all University stakeholders should care about fixing this. The University is fundamentally failing in fostering free and open discourse if the learning that is meant to take place here in and out of the classroom is not as diverse and robust as it could be because some conservatives are too intimidated by the social repercussions that result from voicing their opinions.

After the 2016 presidential election, this campus went into a state of shock, like most campuses around the country did. My classmates could not believe that Donald Trump had won, most likely because they had never talked to or heard of anyone planning to vote for Trump. I never heard students who voted for Trump tell anyone other than a handful of like-minded friends that they had done so, let alone have a full and robust discussion about why. So it is no wonder that students were so shocked when Trump won. And no wonder it was so easy for many of them to respond by characterizing all Trump voters as white supremacist deplorables, rather than including the guy or girl who lives on your floor, brushes his or her teeth next to you each morning in the hall bathroom, and is also concerned about lowering taxes, protecting the unborn, and nominating originalists to the Supreme Court.

Now here’s the good news. The situation I just described could be worse. A lot worse. And it is a lot worse at most other universities around the country. While the treatment of Princeton conservatives is not fair, not right, and not pleasant, to my knowledge it has never turned violent. That seems like a low bar but it is a bar that Middlebury Professor Allison Stanger, still suffering the effects of injuries sustained when Charles Murray spoke at Middlebury in March 2017, would wish her campus had met. To my knowledge there has never been a speaker prevented from speaking on Princeton’s campus or shouted down when they arrived. Berkeley and Brown are among the institutions that have had such incidents.

So despite all of the social challenges I mentioned, there is a strong and vibrant conservative minority at Princeton and there is a strong and vibrant contingent of liberal students who engage respectfully and substantively with conservatives and maintain the basic assumption that we are decent people of goodwill.

Why is it that Princeton has succeeded in this regard when so many of our peers have failed?

One of the answers is Professor George and the James Madison Program. Professor George and the scholars he brings to campus through the Visiting Fellows program serve as excellent role models to campus conservatives of the best way to discuss our views in a respectful and courteous way. Professor George was always available as a mentor and guide to offer advice about the best way to respond to difficult campus events, which helped Princeton conservatives raise our game and go high when the progressives went low.

The lectures that the Madison Program hosts always feature robust Q&A sessions and provide an example to all students, conservative and liberal alike, for how to grapple with difficult issues in a thoughtful way. These lectures on American ideals and institutions also serve as an important reminder that celebrating the achievements of oft-vilified “dead white men” like Madison, Jefferson, and Hamilton is still a worthy and indeed essential academic pursuit.

The Madison Program also serves a social and community building function. Some of my favorite afternoons and evenings as an undergraduate were spent attending one of the teas or dinners that the Madison Program hosted with visiting speakers or scholars. These were attended by students of all backgrounds, class years and political beliefs and were another way for students to connect and engage. I am not one to believe in so-called “safe spaces,” but this campus should be welcoming and respectful of all students, and the work of the Madison Program is essential to ensuring that Princeton ‘be made safe for discourse,’ to borrow the phrasing of the also vilified Woodrow Wilson.

The example the Madison Program sets has been spreading around campus and is best exemplified in the book selection that Professor Eisgruber made for this year’s “pre-read,” a tradition he began of assigning each incoming freshman to read a book over the summer that would be discussed during Orientation. This year’s book, titled “Speak Freely,” is by Princeton Professor Keith Whittington and argues for the importance of open discourse. For the first time, the pre-read was distributed to all Princeton students, not just the incoming freshmen, which reflects that President Eisgruber understands how important this is to the lifeblood of the University. In my opinion, this should be the pre-read book every year. If tradition dictates that a new book be chosen each year, it should be replaced by a session during Orientation on the importance of campus discourse. I have to say, I was a Peer Academic Advisor for 3 years and so was involved with Orientation each of those years. It is a busy week but if the school can set aside time for all students, including religious and abstinent students, to learn how to respectfully ‘exile’ their roommate for the night, it can also set aside time for all students to learn how to respectfully engage their peers in discourse for the rest of their lives.

In closing, I would sum up my time as an outspoken Princeton conservative by saying what doesn’t kill you makes you stronger. There were some very unpleasant times, but many more incredibly rewarding ones, like one day last year when a freshman came up to me while I was walking to class, introduced himself, and told me that I was the reason he had decided to attend Princeton, because he had heard me speak at a debate our campus political union, Whig-Clio, held during visiting weekend and wanted to attend a school where people felt free to speak their minds like I had.

I left college as conservative as I was when I arrived but now even more confident in why I hold the opinions I do and in my ability to defend and articulate those beliefs. I learned so much from constantly being challenged by people who disagree with me. I can only conclude that it is a real shame that many of my liberal classmates were so successful in preventing themselves from having the same learning experience I did.

January 9, 2019 | Permalink

Tuesday, January 8, 2019

The Achievement of John Finnis

The Achievement of John Finnis

(from John Keown and Robert P. George, editors, Reason, Morality, and Law: The Philosophy of John Finnis)

Robert P. George


“There are human goods that can be secured only through the institutions of human law, and requirements of practical reasonableness that only those institutions can satisfy.”


With these words, John Finnis, while still in his late 30s, began his masterwork, Natural Law and Natural Rights—the book that would not only revive scholarly interest in the venerable, but deeply misunderstood, idea of natural law and natural rights, but also powerfully challenge dominant ways of thinking among philosophers of law and moral and political philosophers in the analytic tradition.[1]

Future intellectual historians will no doubt present the book, together with Professor Finnis’ other philosophical writings, as part of the broad revival in more or less Aristotelian approaches to moral and political thinking that gained prominence beginning in the late 1970s.  And they will be right to do so.  Like Elizabeth Anscombe, David Wiggins, Philippa Foot, Alasdair MacIntyre, and many others, Finnis adopted or adapted Aristotelian methods to overcome the defects of utilitarian and other consequentialist approaches to ethics, on the one side, and Kantian or purely “deontological” approaches, on the other.

Like utilitarians, and unlike Kantians, these thinkers (who can be called neo-Aristotelians) hold that ethical thinking must be deeply linked to considerations of human well-being or flourishing—Aristotle’s eudaimonia.  But such thinking, they maintain, cannot treat the human good as subject to aggregation and calculation in a way that could somehow render coherent and workable a norm directing people to choose the option (or act on the rule) that will, for example, produce the “greatest happiness of the greatest number” or the “net best proportion of benefit to harm overall and in the long run.”  So, like Kantians, they reject the belief that ethics is a matter of technical reasoning (or “cost-benefit analysis”) aimed purely and simply at producing the best possible consequences.  Unlike Kantians, however, they also reject the idea of a purely deontological ethics, with its reduction of moral thinking to the domain of logic.  To be sure, they accept the idea of morality as a matter of rectitude in willing, but they argue that morally wrongful choosing is not merely a matter of inconsistency in thought.  Rather, immorality consists in choosing (and thus willing) in ways that are contrary to the good of human persons.

A critical moment—one might say the critical moment—in Finnis’ intellectual biography occurred when, nearly fifteen years before the publication of Natural Law and Natural Rights, he encountered the work of Germain Grisez.  It was Grisez’s “re-presentation and very substantial development” of Aquinas’ understanding of the first principles of practical thinking, the understanding articulated in the ‘treatise on law’ of the Summa Theologiae, that made it possible for Finnis to deploy with the rigor rightly demanded in the analytical tradition of philosophy an Aristotelian approach to problems in philosophy of law and moral and political philosophy.[2]  According to Grisez and Finnis, Aquinas correctly understood that the underived (per se nota and indemonstrabilia) first and most basic principles of practical reason direct human choosing and acting towards intelligible human goods—the various irreducible aspects of human well-being and fulfillment which provide more-than-merely-instrumental reasons for action—and away from their privations.  These first principles (and the basic human goods to which they refer in directing our choosing and acting—friendship, knowledge, critical aesthetic appreciation, skillful performances of various types, etc.) are not themselves moral norms.  (Knowledge of them is moral knowledge incipiently, but only incipiently.)  Rather, they guide and govern all coherent practical thinking, whether it results in morally upright action (e.g., visiting an ailing colleague in the hospital simply as an act of friendship) or immoral action (e.g., telling a lie to protect the reputation of a friend who has done something disgraceful).

Moral norms, whether general ones, such as the Golden Rule (“do unto others as you would have them do unto you”), or more specific ones, such as the prohibition of lying even to protect the reputation of a friend, are specifications of the obligation to honor the dignity of all human persons (including oneself) by respecting human well-being in its fullness—i.e., the basic goods of human persons considered integrally.  And so what Grisez and Finnis, who (together with Joseph M. Boyle, Jr.) would later collaborate extensively in developing the moral theory pioneered by Grisez, call “the first principle of morality” enjoins us to choose and otherwise will in ways that are compatible with a will towards integral human fulfillment.[3] And just as the various “basic human goods” are specifications of the first and most general principle of practical reason, which Aquinas formulates as “good (bonum) is to be done and pursued and bad (malum) is to be avoided,” the various moral norms which we strive to live by and transmit to our children are specifications of the first and most general principle of morality. These norms of morality governing human choosing are not mere projections of feeling or emotion, nor are they imposed upon reason extrinsically; rather, they are the fruit of reasoning about the human good and its integral directiveness, and are, in that sense, as Finnis says, requirements of (practical) reasonableness

When Finnis arrived in Oxford in the early 1960s as an Australian Rhodes scholar holding an LL.B. from the University of Adelaide, he was fortunate to be able to write his doctoral dissertation (on the idea of judicial power) under the supervision of Herbert Hart, holder of the University of Oxford’s Professorship of Jurisprudence and the preeminent Anglophone legal philosopher of his time.  Hart had recently published his own masterwork, The Concept of Law.[4]  Much of what Finnis would go on to achieve in legal and political philosophy would be rooted in critical engagement with Hart’s thought.  This was an engagement that Hart welcomed.  Indeed, in his role as editor of the prestigious Clarendon Law Series of Oxford University Press, Hart would commission Finnis (who in the mid-60s became his colleague on the Oxford law faculty) to write Natural Law and Natural Rights, even specifying the title.  While resisting most of Finnis’ criticisms of his work, Hart had a keen appreciation of the power of his young colleague’s intellect and the force of his arguments.

Although Hart’s sympathies tended to run in a moderate empiricist and to some extent utilitarian direction, there is a sense in which his work (especially The Concept of Law) prefigured the Aristotelian revival.  Despite his firm commitment to what he regarded as “legal positivism”—which he understood as a strict commitment to the “conceptual separation of law and morality”—Hart was a severe critic of Jeremy Bentham’s externalist and reductionist view of law (or the concept of law).  Bentham supposed that the social phenomenon (or set of phenomena) we know as “law” is best understood on the model of “orders backed by threats”—orders issued by a sovereign who is habitually obeyed, but who obeys no one.  On this understanding, laws function as causes of human behavior. They do not create obligation, at least in the normal, normatively flavored sense of that word.  Rather, they merely oblige—by way of threats of punishment for non-compliance.  They oblige in the way that an armed bandit obliges a victim to turn over his wallet when villain points a loaded pistol at victim’s head and says “your money or your life.”

Now, Hart’s objection to Bentham’s account was not moralistic; rather, he argued that it failed descriptively—it did not “fit the facts.”[5]  In particular, it did not account for the ways in which laws characteristically function in the lives of citizens and officials as frequently providing certain types of intelligible reasons for action, what he would later describe as “content-independent peremptory reasons.”[6]  To “fit the facts” an account of law must pay attention to the practical point of laws and legal institutions, and draw the distinctions between various types of laws and their various functions.  But this, in turn, required the legal theorist, or descriptive sociologist[7] of law and legal systems, to adopt what Hart called “the internal point of view,” that is, the practical viewpoint of citizens and officials for whom the laws provide reasons for acting by, among other things, enabling them individually and/or collectively to pursue certain objectives and accomplish certain goals (e.g., transporting themselves on the highways, getting married, creating a binding commercial contract, establishing a charitable trust).[8]

Thus, Hart’s “concept” (and philosophy) of law, having identified and adopted the internal point of view, begins to move away from the voluntarism (law as will) that lies at the heart of Benthamite legal positivism, and toward a recognition of law as rationally grounded—that is, as providing reasons that guide choosing.  Law (and laws), according to Hart, cannot be reduced to causes of human behavior, nor can it accurately be described as the sheer imposition of (the) will (of a sovereign).  It is characteristically (though not always) reasoned and reasonable.  At least, it is capable of being so, and will be so in the central or “focal” cases in which law functions in the ways that make it intelligible as a product of human deliberation and judgment in the first place.  And yet, Hart himself drew short of committing himself to any such conclusion.  He wished to retain the core of legal positivism even while jettisoning Bentham’s externalism (and strict voluntarism) and reductionism.  It was precisely for this drawing short, this refusal to identify fully reasonable (i.e., just) law as the focal case of law, and the point of view of the morally motivated legal official and citizen as the focal case of the internal point of view, that Finnis criticized the otherwise powerfully compelling philosophy of his teacher.

For Finnis, the focal case of a legal system is one in which legal rules and principles function as practical reasons for citizens as well as judges and other officials because of people's appreciation of their virtue and value, i.e., their point.  Aquinas's famous practical definition of law as an ordinance of reason directed to the common good by the persons and institutions having responsibility for the care of the community here has its significance in descriptive legal theory.  As Finnis observes,

"if we consider the reasons people have for establishing systems of positive law (with power to override immemorial custom), and for maintaining them (against the pull of strong passions and individual self-interest), and for reforming and restoring them when they decay or collapse, we find that only the moral reasons on which many of those people often act suffice to explain why such people's undertaking takes the shape it does, giving legal systems the many features they have—features which a careful descriptive account such as H.L.A. Hart's identifies as characteristic of the central case of positive law and the focal meaning of "law," and which therefore have a place in an adequate concept (understanding and account) of positive law."[9]

Yet, as I have noted, Hart himself, in The Concept of Law and elsewhere, refused to distinguish central from peripheral cases of the internal point of view.  Thus, he treated cases of obedience to law by virtue of "unreflecting inherited attitudes" and even the "mere wish to do as others do" as indistinguishable from morally motivated fidelity to law.[10]  These "considerations and attitudes," like those which boil down to mere self-interest or the avoidance of punishment, are, Finnis argues, "diluted or watered-down instances of the practical viewpoint that brings law into being as a significantly differentiated type of social order and maintains it as such.  Indeed, they are parasitic upon that viewpoint."[11]

Now, this is not to suggest that Finnis denies any valid sense to Hart’s insistence on the "conceptual separation" of law and morality.[12] It is merely to highlight the ambiguity of the assertion of such a separation and the need to distinguish, even more carefully and clearly than Hart did, between the respects in which such a separation obtains and those in which it does not.  Still less is it to suggest that belief in natural law or other forms of moral realism entail the proposition that law and morality are connected in such a way as to confer upon judges as such plenary authority to enforce the requirements of natural law or to legally invalidate provisions of positive law they judge to be in conflict with these requirements.  The scope and limits of judicial power is a separate issue—one that has been the focus of criticism of Hart’s jurisprudence by another of his eminent former students, Ronald Dworkin, who has faulted Hart’s positivism for excessively narrowing the authority of judges and other officials to bring moral judgments to bear in the enterprise of legal interpretation.[13]  Finnis has not signed on to Dworkin’s critique of Hart’s jurisprudence—a critique that is sometimes regarded as proceeding from a natural-law vantage point of its own—and parts of Finnis work suggest reasons for believing that Dworkin’s critique is in important ways misguided.  For Finnis, the truth of the proposition lex iniusta non est lex is a moral truth, namely, that the moral obligation created by authoritative legal enactment—that is to say, by positive law—is conditional, rather than absolute.  The prima facie moral obligation to obey the law is defeasible.  Finnis does not claim that unjust laws are in no legitimate sense laws,[14] nor does he argue that judges enjoy as a matter of natural law some sort of plenary authority to invalidate or even to subvert or ignore laws that they regard (even reasonably regard) as unjust.

We see, then, that Finnis takes on board Hart’s key insights deriving from his critical engagement with Benthamite legal positivism and pushes them to their logical conclusions—conclusions that move legal philosophy beyond legal positivism, even in its comparatively modest Hartian iteration, into a recognition of law as, in a meaningful sense, connected with reason’s quest for justice and the common good (law as reason and not merely will).  In the process, he strikes a blow against a familiar caricature of natural law whose wide acceptance (including, incidentally, by Hart himself as well as by Hans Kelsen and others) had provided apparent grounds for its quick dismissal by serious scholars and students of jurisprudence.

The achievement of John Finnis goes well beyond his signal contributions to philosophy of law.  It certainly includes his work with Grisez and Boyle in developing the understanding of practical reasoning and moral judgment that has come to be known, problematically, as the “new”[15] natural law theory and (not unrelatedly) his critical writings against moral skepticism, utilitarianism and other forms of consequentialism in ethics, and ethical theories that purport to lay aside considerations of human well-being in identifying norms of conduct for the moral life.[16] It also includes significant work in political philosophy, some of it directed to pulling the rug out from under the most influential forms of “liberal” political theory of our time, namely, those “anti-perfectionist” theories (often underwriting an ideology of expressive and/or possessive individualism), such as the theory of justice and “political liberalism” advanced by the late John Rawls, proposing that political decisions may not legitimately be based on controversial ideas of what makes for or detracts from a valuable and morally worthy way of life, or that in decisions pertaining to constitutional essentials and matters of basic justice, liberty may not legitimately be limited except on the basis of “public reasons” (where the concept of a public reason strictly excludes reasons drawn from “comprehensive” philosophical and religious views—however reasonable those “comprehensive views” may be).[17]

Finnis’ contributions in political philosophy go beyond the criticism of major works by influential contemporary liberal thinkers, such as Rawls, Dworkin, and the late Robert Nozick.  Natural Law and Natural Rights, especially chapters VI-XI, constitutes a major affirmative contribution to thought about (1) justice and its requirements, (2) the content (and scope) of the political common good; (3) rights, including human rights, and their identification; (4) the rational grounds for honoring legal and political authority and recognizing legal and political obligation; and (5) the nature and social functions of law.  In all of these areas, his analysis and prescriptions are notable not only for their analytical rigor and precision, but for their attention to the complexities of the subject matter.  (For example, Finnis carefully explores, in Natural Law and Natural Rights VII.4, the relevance of (a) need, (b) function, (c) capacity, (d) desert, and (e) consideration of who may have created or at least foreseen and accepted a risk of loss or harm, in analyzing problems of distributive justice.)  In all of these areas, what was originally presented in Natural Law and Natural Rights has been expanded, deepened, and in various ways enriched by papers Finnis subsequently published, most of which are included in the five volumes of Collected Essays of John Finnis published in 2011 by Oxford University Press.  Taken together, the chapters of the book and the various essays represent an important and distinctive contribution to the contemporary debate about the selection of political principles and the proper design and healthy functioning of political institutions.

In normative ethics and political theory, Finnis has been a force second to none in defending the moral inviolability of human life in all stages and conditions and the norm against making the death or injury of a human being the precise object of one’s choosing.  And so he has written powerfully against abortion, infanticide, euthanasia, and the intentional (including the conditional) willingness to kill or maim noncombatants (including captured or subdued enemy soldiers) even in justified wars (whether the weapons used are nuclear or conventional).  Similarly, he has been a leading voice in defense of the historic understanding of marriage as a conjugal partnership—the union of husband and wife.  In many cases, his views have put him at odds with the socially liberal orthodoxy prevailing in the universities and other intellectual sectors of the culture; in a few, they have placed him in dissent from what are regarded today as conservative positions. Like his hero Socrates, in an analogy his commendable humility would cause him vehemently to reject, he has followed arguments wherever they lead, and has never hesitated to state and defend a view because it flies in the face of the intellectual, moral, or political dogmas of the day.  The accolades and honors that have come his way were not purchased by conformity to allegedly enlightened opinion or by silence in regard to what he judges to be its grave defects.  His powerful and very public dissent could hardly have been contrived to gain him a personal chair in Oxford or election as a Fellow of the British Academy.    In this, as in so many other ways, he has always been an inspiration to those of us fortunate enough to have been his students and to young scholars in the various fields of his interest and influence who know his work and the witness to the unconditional pursuit of truth it represents.

And this takes us to one last area of his interest and influence, an area in which the truths pursued are truths about ultimate things.  While still a young philosopher, in a milieu dominated by the secularism he had hitherto shared—and one that was already showing signs of hostility to dissent—he made the move from secularism to (Catholic) Christianity, under the influence of classic philosophers as well as Christian saints. It was not that he came to faith and therefore saw the world differently.  If anything, the reverse was true.  The closed horizon of secularism artificially constrained the questions which, pursued with Socratic relentlessness, undermine secularism itself and inaugurate a journey of faith that might well lead to the rational affirmation of spiritual realities and an openness to entering into some form of communication and friendship with a transcendent source of meaning, value, and indeed all that there is. It was, in other words, reflection on the world—and the manifold orders of intelligibility (the natural, the logical, the moral, the technical) in which it presents itself to us and yields to our questioning and investigating—that led John Finnis to conclude that there are more things to be understood (and engaged) than can be immediately perceived with the senses or accounted for by empirical inquiry or technical analysis.  Like so many other notable modern philosophers who have made the journey from secularism to Catholicism—Jacques Maritain, Gabriel Marcel, Elizabeth Anscombe, Alasdair MacIntyre, Michael Dummett, Peter Geach, Nicholas Rescher—it was reason and reasoning that brought him to faith.

Faith was not to be, for Finnis, purely a matter of personal piety detached from his exertions as a philosopher.  It could not be, since the lines of questioning that must be pursued in practical philosophical disciplines—ethics, political philosophy, philosophy of law—will, unless for no adequate reason we choose to cut them off, take us to the deepest questions of meaning and value.  Reason itself—if it is anything more than a computational power—is a spiritual capacity, one that is not reducible solely to material and efficient causes. And reason cannot be a merely computational power if it is indeed capable of grasping more-than-merely-instrumental reasons for action (and their integral directiveness)—reasons (including moral norms) that are capable of guiding choices that are truly free.  And if we are indeed rational and free creatures—i.e., persons, beings whose fundamental makeup (nature) is oriented to deliberation, judgment, and choice—then we are not merely material, but also spiritual creatures—creatures whose integral good includes not only our bodily (biological) health, but our intellectual, moral, and spiritual well-being as well.  Obviously, these anthropological facts, if facts indeed they are, cannot but be highly relevant to questions of ethics, political philosophy, and philosophy of law, as well as to theology (including, centrally though not exclusively, of course, moral theology).

Finnis’ work in moral theology prompted the highest authorities of the Catholic Church to summon him to service on its most important theological council, the International Theological Commission.  There he worked especially on the philosophical and theological currents that were washing away the concept of intrinsically morally wrongful acts.  In his own voice, and not purporting to speak for the Commission, he published a small but lastingly valuable book on the subject entitled Moral Absolutes.[18] Here, in my view, we have a supreme example of the value of rigorous philosophical work marshaled in the cause of understanding the data of revelation and illuminating and enriching the teachings of faith. The work vindicates the claim famously advanced by Pope John Paul II in the opening sentence of his encyclical letter Fides et Ratio:  “Faith and reason are like two wings on which the human spirit ascends to contemplation of truth.”  The truth-seeking achievements of John Finnis have been made possible by his willingness to use both wings.


[1] John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 2nd edition published in 2011).

[2] Germain Grisez, “The First Principle of Practical Reason:  A Commentary on the Summa Theologiae, 1-2, Question 94, Article 2,” Natural Law Forum, Vol., 10 (1965), pp. 168-196.  In the Preface to NLNR, on p. vii, Finnis acknowledges his intellectual debt to Grisez, noting that “[t]he ethical theory advanced in Chapters III-IV and the theoretical arguments in sections VI.2 and XIII.2 are squarely based on my understanding of his vigorous re-presentation and very substantial development of the classical arguments on these matters.”

[3] This development is discussed intensively in Joseph Boyle’s essay herein, in Finnis’ response to it, and Grisez’s essay too.   In NLNR, Finnis did not formally articulate the first principle of morality—something he accounts as a “failure” in the post-script to the book’s 2nd edition (see p. 419).  This was, however, soon rectified in his writing, as a result of collaboration with Grisez and Boyle in the refinement and development of their “new” natural law theory.  As Finnis points out, in 1983 “openness to integral fulfillment” is accorded the status of the “master principle of morality” in Finnis’ Fundamentals of Ethics (Oxford and Washington, DC:  Oxford University Press and Georgetown University Press, 1983), pp. 70-74, 120-124, and 1511-152.  A more formal articulation of the principle first appears in Germain Grisez, Joseph M. Boyle, Jr., and John Finnis, “Practical Principles, Moral Truth, and Ultimate Ends,” American Journal of Jurisprudence, Vol. 32 (1987), at pp. 126-129.

[4] H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961); 2nd edition published in 1994.

[5] Hart, Concept of Law, p. 78.

[6] H.L.A. Hart, Essays on Bentham (Oxford: Clarendon Press, 1982), Ch. 10.

[7] On the very first page of The Concept of Law Hart invites the reader to regard the book as an exercise in “descriptive sociology.”

[8] As Finnis points out, Hart in The Concept of Law, “gives descriptive explanatory priority to those who do not ‘merely record and predict behavior conforming to rules’, or attend to rules ‘only from the external point of view as a sign of possible punishment’, but rather ‘use the rules as standards for appraisal of their own and others’ behavior’.”  NLNR, p. 12, quoting Concept of Law, pp. 95-96.

[9]  John Finnis, “The Truth in Legal Positivism” in Robert P. George (ed.) The Autonomy of Law: Essays on Legal Positivism (Oxford: Clarendon Press, 1996), pp. 195-214, at 204.

[10] Hart, Concept of Law, p. 198.

[11] Finnis, NLNR, p. 14.

[12] See generally Finnis, “The Truth in Legal Positivism.”

[13] Finnis comments on Dworkin’s critique, in Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977), of the “positivism” of Hart and Joseph Raz in an illuminating end note to Chapter Two of NLNR, arguing that the debate “miscarries” because Dworkin “fails to acknowledge that their theoretical interest is not, like his, to identify a fundamental ‘test for law’, in order to identify (even in the most disputed ‘hard cases’) where a judge’s legal (moral and political) duty really lies, in a given community at a given time. Rather, their interest is in describing what is treated (i.e., accepted and effective) as law in a given community at a given time, and in generating concepts that will allow such descriptions to be clear and explanatory, but without intent to offer solutions (whether ‘right answers’ or standards which if properly applied would yield right answers) to questions disputed among competent lawyers.”

[14] Ibid.

[15] The substance of the account of natural law offered by Finnis et al. is hardly new.  Its core can be found in Aquinas, and much of that, in turn, Aquinas draws from Aristotle.  It is true that Finnis, Grisez, and others have developed the Thomistic theory of natural law in various ways, and articulated the theory in a modern philosophical idiom.  But to develop a theory is not to reject it.  It is, rather, to accept its substance and draw out its further implications.  That is what they have done by, for example, showing how reflection on the integral directiveness or prescriptivity of the principles of practical reason that are presented by Aquinas enables us to identify moral principles and norms that distinguish options for choice that are fully in line with all that reasonableness demands from options that, in one way or another, fall short or afoul of the full demands of practical reasonableness.

[16] See especially Finnis, Fundamentals of Ethics.

[17] See John Rawls, A Theory of Justice (Cambridge, MA:  Harvard University Press, 1971); John Rawls, Political Liberalism (New York: Columbia University Press, 1993); Robert Nozick, Anarchy, State, and Utopia (Oxford: Oxford University Press, 1974); Ronald Dworkin, A Matter of Principle (Cambridge, MA: Harvard University Press, 1985).

[18] John Finnis, Moral Absolutes: Tradition, Revision, and Truth (Washington, DC:  Catholic University of America Press, 1991).

January 8, 2019 | Permalink

Monday, January 7, 2019

The Supreme Judge for the Catholic World

"To judge" is a term used in many ways, and, as a result of that lack of univocity, we need to be careful when assessing the merits or demerits of particular examples of judging (or judgment).  It is fashionable in some quarters to posture as eschewing all judging or judgment, but the anti-judging posture simpliciter is unsustainable.  Judgment of various kinds is obviously a necessary achievement on a regular basis for a life of tranquil order or even the avoidance of the edge of chaos.

Judges, as in courts of law, do judge, but legislators and private persons also judge.  For example, I, a private person, judge that torture of the innocent is always and everywhere wrong; no legal consequences attach to my private judgment but it is nonetheless what we refer to as a judgment.  A judge acting as a judge, however, judges, for example, not only that the defendant did a legally proscribed act (actus reus) but also that he did it with the requisite fault (mens rea), and, under certain specified circumstances, the consequence called punishment will by judicial action (sentencing) attach to that legal judgment.  Unless our whole system of penal law were unthinkably to be transmuted into a regime of strict or absolute liability, its operation depends upon judgments of both acts and, to my present point, persons and, specifically, their fault vel non.  I would just add that a system of penal law that eliminated structured and limited judgment of the fault of duly accused persons in favor, instead, of universal strict liability would present its own, profound moral problems.  

The preceding, about the necessity of judgment to civilized living, is background to our present, real-life predicament.  On the one hand, the line for which Pope Francis is most likely most well known is "Who am I to judge?" On the other hand, however,

the Roman Pontiff is the supreme judge for the entire Catholic world; he renders judicial decisions personally, through the ordinary tribunals of the Apostolic See, or through judges he has delegated.

 CIC 1442.  The person who as Pope publicly undermined his own capacity "to judge" is at the same time (as long as he remains Pope) unalienably the supreme judge for the Catholic world:  "Romanus Pontifex pro toto orbe Catholico iudex est supremus."

Before proceeding, let me anticipate the objection that it is canon law and the Roman-legal way of thinking, not the tension I have identified between the role of the "supreme judge" and the particular supreme judge who ponders "Who am I to judge?" that constitutes the problem.  But it is canon law, duly articulated and justly enforced, that constitutes the problem?  I submit that it is not, something Raymond of Penafort (whose feast the Church celebrates today) very much appreciated.   A worthy system of law, such as the canon law of the Church over the centuries, is vital to the just and effective, not to mention virtuous, functioning of a (complete) society.  The opposing point of view usually says that love is be preferred to law in the Church.  Indeed, but the priority of love in the Church rather calls for law than displaces law.

It is well known and easily documented that many of the active minds behind what we call "Vatican II" wished to divest the Church of the inheritance of Roman law in the canon law.  These tended, by the way, to be the same minds, such as Marie-Dominique Chenu OP, who wished to eliminate Latin as the liturgical language and also sought to downplay in Catholic theology the treasure of Greco-Roman discovery of the logos.   As I have commented here before, however, if the Church had not been functionally talked out of her own system of law and its just enforcement, the incidence of crime and other wrongdoing in within the Church herself in recent decades would surely have been orders of magnitude lower.  The canon law has remained on the books (though of course much weakened in relevant respects between the Code of 1917 and the Code of 1983), which is why  my saying "talked out of her own system of law" is somewhat hyperbolic, but the evidence is irrefutable that canonical crimes by prelates, for example, have gone by and large un-prosecuted.  

But enter a gaping exception.  This week includes what is to-date the most famous, indeed epochal, exception to the don't-prosecute prelates rule.  The Wall Street Journal and other sources are reporting that this very week, at long last, Archbishop McCarrick is finally getting the canoncial trial Pope Francis promised would be held when he accepted Archbishop McCarrick's resignation from the College of Cardinals this past June.  I have no competence, let alone any wish, to try to prejudge (sic) the result of the ongoing trial.

What I do wish to underscore is that the man who very successfully adopted the anti-judging stance for all the world to see and celebrate is the man who nonetheless will be, will-nilly, the "supreme judge" in McCarrick's case. It does not matter to the exercise of that supreme jurisdiction that McCarrick seems to have found personal favor with Cardinal Bergoglio and then Pope Francis.  Francis cannot recuse himself from being the supreme judge in McCarrick's case because, just as the Pope is the supreme legislator in the Church (which of course does not mean that his power is absolute), so, too, is he the supreme judge, irrespective of any bias of which he cannot rid himself.   This perhaps startling claim is the consequence of the theological doctrine summarized as follows in Canon 331, a canon Pope Francis himself has not been shy about formally invoking (e.g., with respect to his own role in ratifying the results of the 2015 Synod (cf. Can. 343)):

The bishop of the Roman Church, in whom continues the office given by the Lord uniquely to Peter, the first of the Apostles, and to be transmitted to his successors, is the head of the college of bishops, the Vicar of Christ, and the pastor of the universal Church on earth.  By virtue of his office he possesses supreme, full, immediate, and universal ordinary power in the Church, which he is always able to exercise.  (emphasis added)

We should pray for Theodore McCarrick and for his supreme earthly judge.  It is to be hoped that McCarrick will receive a just trial and, if he is justly found guilty under canon law, a just penalty.  These will depend upon judgments of his acts but also of his culpability.  And thereafter there remains also the possibility of mercy.

Now enter the "Pope of Mercy."  People who are likely to be reading these words will know that this Pope has made his mark on the media and the world, including many Catholic faithful, by styling himself as more merciful than others, including his predecessors.  The most recent example of Francis's unique mercy came with his revision of the Catechism of the Catholic Church to declare that the Church now considers capital punishment to be always and everywhere "inadmissible," a topic I recently discussed here. Pope Francis seems to have judged (sic) all previous popes to be deficiently merciful on the question of capital punishment (and, for that matter, related penological policies and practices).

The rub, however, is as follows.  Even the "Who am I to judge?" and uniquely merciful Francis cannot help acknowledge the necessity of judgment.  Consider this from Francis's less-than-merry "Christmas Greetings" to the Roman Curia during Advent (sic) 2018: "To those who abuse minors I would say this: convert and hand yourself over to human justice, and prepare for divine justice."  Justice, both human and divine, presupposes and depends upon judgment.  

So far, to the best of my knowledge, not one man among the hierarchy has responded to the Pope's ominous Christmas imperatives to hand themselves over to the police.  In fact, the very recent news is that Pope Francis did not know that he had just a few months ago given (and continues to give) cover in the Vatican (as an "Assessor" in high Vatican finances) to one of his protege bishops from Argentina who is publicly accused of sexual abuse of his seminarians.  It sometimes seems that Pope Francis has very bad prudential judgment about whom to bring close to himself in exercising his ministry, thereby unintentionally multiplying the consequences of the "Who am I to judge?" policy.

We all await the divine judgment: Pope Francis got that right.  And we should await that judgment with the "fear and trembling" that the Catholic tradition always until recently taught and preached.  But Pope Francis also got right that he himself has a ministerial role that concerns judgment that, subject to ultimate and assured eschatological rectification, must be made in the here and now, sometimes by civil authorities but sometimes by ecclesiastical authorities.  We must not forget, come what may in the McCarrick trial and otherwise, that Pope Francis is the supreme judge "pro toto orbe Catholico."  Even the "God of Surprises,"a favorite of Pope Francis's, seems at this point unlikely to make the McCarrick problem go away.  We therefore await the judgment of this Pope as the supreme judge for the Catholic world, including Archbishop McCarrick, keeping in mind that the Code of Canon Law (1983) concludes by reminding those called to judge under its force that "the salvation of souls . . . must always be the supreme law in the Church."  CIC 1752.     

January 7, 2019 in Brennan, Patrick | Permalink

Sunday, December 30, 2018

2018 Heritage Foundation "President's Essay"

Each year, the President of the Heritage Foundation invites a thinker in the conservative tradition to write an essay to be published under Heritage's auspices as the "President's Essay." Past essayists include Whittaker Chambers, Michael Novak, Russell Kirk, Friedrich Hayek, Midge Decter, William F. Buckley, Jeane Kirkpatrick, Norman Podhoretz, James Q. Wilson, and Ryan T. Anderson. I'm grateful to Heritage's President Kay Coles James for inviting me to write the 2018 essay. It has now been published. Here is the text.


Returning to Our Principles

2018 Heritage Foundation President’s Essay

Robert P. George

The United States of America is a great country. It has achieved remarkable things. It has proven that republican government--government not only of the people (which all government is) and for the people (which all decent government is, even that of a benign despot) but by the people--can indeed "long endure." Our nation's record is not perfect and should not be whitewashed. Slavery and racial and other injustices are, alas, part of our story. But they are not the whole story. The efforts of our people--acting in deeper fidelity to our founding principles--to right historical wrongs and secure "liberty and justice for all" are also part of the story. And there is more.

The United States has created hitherto unimaginable prosperity and provided millions upon millions of people with unprecedented opportunities for economic and social advancement. It has welcomed immigrants--in astonishing numbers--and enabled them to become Americans--as truly and fully American as the descendants of those who came to North America on The Mayflower. It has defeated tyrants and tyrannies that have credibly sought nothing short of world domination.

And yet Americans are uneasy, unhappy, worried. Many are disaffected. At the extremes, small radicalized factions embrace violence against political opponents. Some stop short of endorsing violence but deploy a rhetoric of demonization that if unchecked will surely corrode the civic friendship--what Lincoln in his first inaugural address called "the bonds of affection"--on which the success of republican democracy vitally depends. Incivility in politics is scarcely something new, but some today regard it as a virtue. That is new. Even some who claim the mantle of conservatism seem to have been lured into an attitude of tribalism and identity politics. How should true conservatives understand our problems, and what should we propose to do about them?

As a conservative, I believe that at the heart of our woes is what has so often been at the heart of our woes whenever we have had woes, going all the way back to the original sin of slavery: infidelity to our nation's founding principles. Those principles include our formal constitutional commitments as well as the moral and cultural norms, practices, and understandings upon which those commitments depend. America is great. And the promise of America remains great. But in many crucial areas we have indeed gone astray. If America is to be true to herself, and if she is to fulfill her promise, things must be turned around.

Because our founding principles are true and good, they are demanding. It is not easy to live up to them, and we will never do so perfectly. Temptations to infidelity will always be with us. All the unsavory qualities of human nature that James Madison identified in the 10th Federalist Paper--and more--make it a challenge for us frail, fallen, fallible human beings to "hold fast to the right," in the words of the old hymn. We must summon the best in ourselves to overcome the weakest and worst in us if we are to resist temptations to sacrifice justice, virtue, honorable liberties, and the authentic demands of the common good for the sake of this or that shiny object: security, comfort, ease, being looked after, being protected from the possibility of failure, having special or dominant status--you name it.

If we are to overcome our woes, if we are to renew our great nation in the only way that our nation ever can be renewed--by returning to our first principles--then labor and sacrifice will be required of all of us. We must restore our national commitment to limited government and the rule of law. This will include the restoration of the constitutional separation of powers and the recovery of the principles of federalism. In particular, our national government must be returned to its constitutional status--to which even liberal jurists and constitutional scholars pay lip-service, even today--as a government of delegated and enumerated (and thus limited) powers.

More broadly, we must demand respect for what political philosophers call "the principle of subsidiarity." This principle of justice demands that government and other higher associations avoid taking over tasks that can be performed well by individuals and small associations, beginning with families, religious communities, and other institutions of civil society. If liberty and justice are to prevail, if the common good is to be realized, it is these "mediating" associations--Edmund Burke's "little platoons," which Alexis de Tocqueville celebrated for their crucial role in undergirding American democracy--that must bear primary responsibility for the health, education, and welfare of our people and for transmitting to each new generation the values, virtues, and skills necessary for individuals to lead successful lives and function as citizens in a free, democratic political order.

Government, especially central government, must stop usurping the authority, violating the autonomy, and damaging the integrity of these mediating structures. For example, government needs to respect the right of parents to direct the upbringing and education of their children, including their education on matters of sexuality and sexual morality. We cannot tolerate sex education programs--especially ones from which parents are forbidden to withdraw their children--that expressly or implicitly promote secular progressive dogmas about sexuality, morality, and marriage in defiance of the beliefs of parents and families. It is similarly intolerable when government--in hiring, licensing, contracting, or accreditation--discriminates against religious or other individuals and institutions because of their "traditional" beliefs about, for example, marriage, sexual morality, and the sanctity of human life.

Of course, there are legitimate roles for government to play. Often public health, safety, and morals and other aspects of the common good, including the protection of basic rights, require state action--laws, policies, or programs. But here the principle of subsidiarity demands that power must be exercised by the level of government closest, most responsive, and most accountable to the people over whom it is exercised. What can be done well by local government should be done by local government, not by the states. And what cannot be done well by local government, but can be done by the states, should not be done by the federal government.

We must also restore the democratic element of our republican constitutional system by reversing the outrageous usurpations of legislative authority routinely committed by the executive and by the courts. That reform would be right because it would make our government more faithful to the Constitution. It would also enable us to make critically needed gains in the direction of restoring in law and culture even more fundamental principles, beginning with the sanctity of human life in all stages and conditions; marriage as the conjugal union of husband and wife; and respect for religious freedom and the rights of conscience--including the rights of parents and families.

Social liberalism is riding high, having established itself as the dominant ideology in the elite sectors of the culture--in the media, in academia, in the entertainment industry and the corporate world, and in many professions. Social liberalism also benefited massively from eight years of aggressive promotion by a president who was willing to breach the constitutional limits of executive power at every turn in order to weave his socially "progressive" values into the fabric of our law and public institutions, including the military. But what was done can--albeit with difficulty--be undone. It is a matter of political will: The willingness to "pay any price and bear any burden" to do what is needed for moral-cultural renewal.

Conservatives must banish the thought that we can surrender on moral and cultural issues, letting the Left secure and consolidate its victories--even on the question of marriage--even while we achieve lasting victories of our own on limited government, economic reform, and national security. To give a sense of why that is the case, let me quote Jasper Williams, the fiery preacher who spoke at Aretha Franklin's funeral. Speaking of the importance of the marriage-based family and of the fundamental moral values that must be in place if families are to form, flourish, and play their critical role in the transmission of competency and virtue, Pastor Williams said:

As the home goes, so goes the street. As the street goes, so goes the neighborhood. As the neighborhood goes, so goes the city. As the city goes, so goes the state. As the state goes, so goes the nation.

His highly "politically incorrect" comments threw the Left into apoplexy. But what he said was true. The success of everything else in society--the educational system, the legal system, the political system, the private sector, the economy--rests vitally on moral foundations.

Conservatives understand that John Adams was right when he said that "our Constitution was made for a moral and religious people and is wholly inadequate to the government of any other." And the reason Adams was right is that our Constitution is, to borrow a phrase from Hayek, "a constitution of liberty," and liberty can never be sustained where immorality flourishes. A licentious people, a people given to appetite and vice, a people who come to accept or even tolerate the "if it feels good, do it" pseudo-principle of "Me Generation" social liberalism, a people who lose their sense of the need for virtue and the soul-shaping importance of the institutions of civil society--beginning with the family--will rapidly become a people no longer fit for freedom or capable of governing itself.

Now, none of this is to gainsay the importance of economic policy. Economic and moral reform must go hand in hand--indeed, the economic reforms we need have profound moral dimensions. Corporate welfare and crony capitalism (in the form of, for example, regulations preventing upstarts from competing with large firms that can more easily absorb compliance costs) undermine the proper functioning of the market-based economy and are blights on the honor of our nation. Moreover, there is a problem of plutocracy, which the Left derides while frequently taking advantage of, and the Right sometimes denies and more often ignores, supposing that the cultural and political power of big business is just the free market doing its thing.

Donald Trump's victories in the 2016 Republican primaries and in the presidential election--like Bernie Sanders' remarkably strong challenge to Hillary Clinton in the Democratic primaries--were driven to a considerable extent by legitimate economic grievances. Economic inequality is not in itself unjust, and any truly effective effort to eliminate it would give us tyranny in no time flat. But justice does require that we maintain fair terms of competition and cultivate conditions for large-scale upward economic and social mobility. A sound truly market-based system will be one in which upstart firms can compete fairly with the big dogs, and hard work, initiative, and the willingness to take investment risks are rewarded. Sound economic policies, by generating prosperity, redound to the benefit of the entire nation--including the poor. This remains true if we break things down into fiscal, monetary, tax, and regulatory policies. Everyone is made better off when money is sound, taxes are reasonably low, inflation is restrained, employment opportunities expand, capital is available, there is genuine market competition, government spending is reasonable, and there is decent wage growth. Everyone is made better off when environmental and other regulatory policies are sensible and evidence-based, and not driven by fads, junk science, alarmism, or corruption.

An urgent matter that most politicians wish to ignore but conservatives know can no longer be ignored is entitlement reform. The federal government's obligations under Medicare and Social Security threaten to bankrupt the nation unless we put them on firmer financial footing. Doing that will require courage--a virtue that is always in short supply among politicians. A true conservative, however, will exemplify it and provide the leadership in this area that America desperately needs.

In the area of national security, a renewed sense of American exceptionalism--one that would be massively advanced by moral reform and re-dedication to our constitutional principles--would serve us well. American exceptionalism is often misunderstood. It is not a claim that we, as Americans, are superior people. Rather, it is a claim that the principles of our founding are unique and valuable principles. It is an affirmation that the American people are not bound together as a nation by blood or soil but rather by a shared commitment to a moral-political creed: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, and among these are life liberty and the pursuit of happiness." This creed is what has rallied Americans in the past to the defense of our country. It can once again strengthen us to stand up to the evildoers who threaten us, and it can inspire us to make the sacrifices that--make no mistake--will have to be made if we are to defeat them.

Despite the successes of General James Mattis and his forces, too often unjustly overlooked, "Islamic State" extremists have confidence that they will ultimately prevail over us, despite our overwhelming military power, because they believe in something and we believe in nothing; because they are spiritually and morally rigorous and we are soft and self-indulgent; because they are willing to fight and die and we are not. Our survival against them depends entirely on whether these beliefs about us are true or false. If they are true, then we are doomed, and doomed with us is the noble experiment in morally ordered liberty bequeathed to us by those who, at the beginning, pledged their lives, fortunes, and sacred honor to establish the regime of republican government that is our precious patrimony. The conservative movement in our time must prove them false.

About the Author

Robert P. George holds Princeton University's celebrated McCormick Professorship of Jurisprudence and is Director of the James Madison Program in American Ideals and Institutions. He is also a Visiting Professor at Harvard Law School. He has served as Chairman of the U.S. Commission on International Religious Freedom and on the U.S. Commission on Civil Rights and the President's Council on Bioethics. He was a Judicial Fellow at the Supreme Court of the United States, where he received the Justice Tom C. Clark Award. A Phi Beta Kappa graduate of Swarthmore College, he holds the degrees of J.D. and M.T.S. from Harvard University and the degrees of D.Phil., B.C.L., and D.C.L. from Oxford University, in addition to twenty honorary degrees. He is a recipient of the U.S. Presidential Citizens Medal, the Honorific Medal for the Defense of Human Rights of the Republic of Poland, and the Canterbury Medal of the Becket Fund for Religious Liberty. His most recent book is Conscience and Its Enemies.

December 30, 2018 | Permalink

Saturday, December 29, 2018

G.K. Chesterton on St. Thomas Becket

Reposting from 2015:


A reflection for today's Feast of Saint Thomas Becket:

Becket was a type of those historic times in which it is really very practical to be impracticable. The quarrel which tore him from his friend's side cannot be appreciated in the light of those legal and constitutional debates which the misfortunes of the seventeenth century have made so much of in more recent history. To convict St. Thomas of illegality and clerical intrigue, when he set the law of the Church against that of the State, is about as adequate as to convict St. Francis of bad heraldry when he said he was the brother of the sun and moon. There may have been heralds stupid enough to say so even in that much more logical age, but it is no sufficient way of dealing with visions or with revolutions. St. Thomas of Canterbury was a great visionary and a great revolutionist, but so far as England was concerned his revolution failed and his vision was not fulfilled. We are therefore told in the text-books little more than that he wrangled with the King about certain regulations; the most crucial being whether "criminous clerks" should be punished by the State or the Church. And this was indeed the chief text of the dispute; but to realise it we must reiterate what is hardest for modern England to understand—the nature of the Catholic Church when it was itself a government, and the permanent sense in which it was itself a revolution.

It is always the first fact that escapes notice; and the first fact about the Church was that it created a machinery of pardon, where the State could only work with a machinery of punishment. It claimed to be a divine detective who helped the criminal to escape by a plea of guilty. It was, therefore, in the very nature of the institution, that when it did punish materially it punished more lightly. If any modern man were put back in the Becket quarrel, his sympathies would certainly be torn in two; for if the King's scheme was the more rational, the Archbishop's was the more humane. And despite the horrors that darkened religious disputes long afterwards, this character was certainly in the bulk the historic character of Church government. It is admitted, for instance, that things like eviction, or the harsh treatment of tenants, was practically unknown wherever the Church was landlord. The principle lingered into more evil days in the form by which the Church authorities handed over culprits to the secular arm to be killed, even for religious offences. In modern romances this is treated as a mere hypocrisy; but the man who treats every human inconsistency as a hypocrisy is himself a hypocrite about his own inconsistencies.

Our world, then, cannot understand St. Thomas, any more than St. Francis, without accepting very simply a flaming and even fantastic charity, by which the great Archbishop undoubtedly stands for the victims of this world, where the wheel of fortune grinds the faces of the poor. He may well have been too idealistic; he wished to protect the Church as a sort of earthly paradise, of which the rules might seem to him as paternal as those of heaven, but might well seem to the King as capricious as those of fairyland. But if the priest was too idealistic, the King was really too practical; it is intrinsically true to say he was too practical to succeed in practice. There re-enters here, and runs, I think, through all English history, the rather indescribable truth I have suggested about the Conqueror; that perhaps he was hardly impersonal enough for a pure despot. The real moral of our mediæval story is, I think, subtly contrary to Carlyle's vision of a stormy strong man to hammer and weld the state like a smith. Our strong men were too strong for us, and too strong for themselves. They were too strong for their own aim of a just and equal monarchy. The smith broke upon the anvil the sword of state that he was hammering for himself. Whether or no this will serve as a key to the very complicated story of our kings and barons, it is the exact posture of Henry II to his rival. He became lawless out of sheer love of law. He also stood, though in a colder and more remote manner, for the whole people against feudal oppression; and if his policy had succeeded in its purity, it would at least have made impossible the privilege and capitalism of later times. But that bodily restlessness which stamped and spurned the furniture was a symbol of him; it was some such thing that prevented him and his heirs from sitting as quietly on their throne as the heirs of St. Louis. He thrust again and again at the tough intangibility of the priests' Utopianism like a man fighting a ghost; he answered transcendental defiances with baser material persecutions; and at last, on a dark and, I think, decisive day in English history, his word sent four feudal murderers into the cloisters of Canterbury, who went there to destroy a traitor and who created a saint.

G.K. Chesterton, A Short History of England (1917), 76-79.

December 29, 2018 in Moreland, Michael | Permalink

Tombs on Becket

Something in honor of the martyrdom of the great saint, from Robert Tombs's superb The English and Their History 68-69 (2015):

Henry [II's] policy of asserting the legal rights of the Crown did not make him popular. Eyres were sudden, frightening descents that not only tried legal cases, but generally asserted royal power, including by aggressive imposition of higher taxes and feudal exactions. Mere suspicion brought ordeal by water or hot iron. Royal justice also led to a clash with the Church, when in the Constitutions of Clarendon (1164) Henry legislated for political control over the Church, including royal jurisdiction over those clergy (and bogus clergy) who committed crimes. This caused an angry breach with his close friend and trusted chancellor, Thomas Becket, whom he had made Archbishop of Canterbury in 1162, and who had unexpectedly become an intransigent defender of ecclesiastical privilege. Their trial of strength culminated in Becket's murder on 29 December 1170 in Canterbury Cathedral.

December 29, 2018 in DeGirolami, Marc | Permalink

Friday, December 21, 2018

"Law and Love": Call for Proposals (from Zach Calo)

Law and Love Project Description

Drawing on jurisprudential, theological, and philosophical sources, this project explores the relationship between law and love.  In particular, it seeks to understand how the category of love can inform our understanding of the meaning, foundation, and ends of law.  Other recent projects have explored the relationship between law and love, including essays in Agape, Justice, and Law (Cochran and Calo, eds., Cambridge) and Law, Religion and Love:  Seeking Ecumenical Justice for the Other (Babie and Savić, eds., Routledge).  This project builds on such recent work, while also inviting particular reflection on the fundamental normative connective between law and love.  In brief, the aim is to work towards developing the outlines of a theological jurisprudence organized around the category of love, focusing above all on the application of resources from within the Christian intellectual tradition.   

We will convene a one day working group at the University of Notre Dame Australia (Sydney) on Saturday 20 July 2019.  It is expected that participants will have prepared papers in advance to be distributed and discussed by the group.  Our expectation is that these papers will be subsequently published in an edited volume.

Please send a brief proposal (200-300 words) to Zachary Calo ([email protected]) and Joshua Neoh ([email protected]) by 1 April 2019.

December 21, 2018 in Garnett, Rick | Permalink

Wednesday, December 19, 2018

Senators take aim at the Knights of Columbus

The Knights of Columbus -- the 125+-year-old Catholic fraternal and good-works organization -- is, it appears, in the minds of some U.S. Senators, an extremist and unworthy organization.  Good grief.   Here are the written answers to questions from senators provided by Brian Buescher, who has been nominated for a seat on the U.S. District Court.  Sen. Mazie Hirono asked (inter alia) if he "intend[ed] to end [his] membership with this organization to avoid any appearance of bias" (because the Knights took the "extreme position" of supporting California's Proposition 8 -- which, of course, was supported by a majority of the voters in the relevant election).  And, Sen. Kamala Harris asked if he was "aware that the Knights of Columbus opposed a woman’s right to choose when [he] joined the organization", as if there were something remarkable about the fact that the Knights have a position on the abortion question that is held by tens of millions of Americans.

The rapidity with which mainstream (even if minority) views are being re-cast as somehow disqualifying for public service -- or even public life -- is quite something.  

December 19, 2018 in Garnett, Rick | Permalink | Comments (0)

Populism and "the Constitution" in Dickens

From "Bleak House" (chapter 16, "Tom-all-Alone's"):

It must be a strange state to be like Jo! To shuffle through the streets, unfamiliar with the shapes, and in utter darkness as to the meaning, of those mysterious symbols, so abundant over the shops, and at the corners of streets, and on the doors, and in the windows! To see people read, and to see people write, and to see the postmen deliver letters, and not to have the least idea of all that language—to be, to every scrap of it, stone blind and dumb! It must be very puzzling to see the good company going to the churches on Sundays, with their books in their hands, and to think (for perhaps Jo DOES think at odd times) what does it all mean, and if it means anything to anybody, how comes it that it means nothing to me? To be hustled, and jostled, and moved on; and really to feel that it would appear to be perfectly true that I have no business here, or there, or anywhere; and yet to be perplexed by the consideration that I AM here somehow, too, and everybody overlooked me until I became the creature that I am! It must be a strange state, not merely to be told that I am scarcely human (as in the case of my offering myself for a witness), but to feel it of my own knowledge all my life! To see the horses, dogs, and cattle go by me and to know that in ignorance I belong to them and not to the superior beings in my shape, whose delicacy I offend! Jo's ideas of a criminal trial, or a judge, or a bishop, or a government, or that inestimable jewel to him (if he only knew it) the Constitution, should be strange!

December 19, 2018 in DeGirolami, Marc | Permalink

Tuesday, December 18, 2018

The death penalty, the development of Catholic doctrine, and judging doctrines and persons

The growing number of those who claim that Pope Francis is making a mess of things can hardly be accused of disrespecting the Roman Pontiff.  After all, it was Francis himself who in July 2013 famously said, "I want a mess."  I count myself among those who prudently suspect most of this Pope's "off the cuff" remarks of being more planned than spontaneous, much like the reliable presence of professional photographers when from time to time Cardinal Bergoglio took public transportation in Buenos Aires. Far from disrespecting the Pope, those who positively credit Francis with making a mess are guilty of sycophancy of an odd sort; messes are usually to be avoided, but this Pope's promoters are programatically pleased to attach themselves to his mess making.   

Disrespect and sycophancy aren't the only available postures, however.  A middle way would be respectfully to call upon Pope Francis to speak clearly and authoritatively on the matters of faith and morals that pertain to the exercise of the Petrine munus and otherwise to speak with the modesty befitting a monarch.  Previous Popes almost always knew how both things were to be done.  And the evidence (as collected by Henry Sire, for example) is that this Pope, author of that undefined novelty "synodality," does indeed see himself as a monarch, but some commentators have reasonably asked whether he isn't one masquerading, less and less successfully, as a populist in the Peronist model.  I remain of the traditional Catholic view that the Roman Pontiff is in fact constituted, by virtue of his office, as a monarch in his potestas, the current "mess" notwithstanding.

Which brings me to my present point, concerning Pope Francis's prepared statement and off-the-cuff remarks to the "International Commission against the Death Penalty" on December 17th.  The mess of confusion in what the Pope wrote and said does not allow us to pretend any longer that this Pope is not saying -- as clearly as he is likely to say it -- that he himself is in fact teaching a development of Catholic doctrine concerning the civil authority's right to execute persons.  But exactly what doctrine Francis has in mind, however, remains to be specified, and in specifiying it we should of course apply a hermeneutic of charity. 

Pope Francis himself helps by making unmistakably clear that sometimes the civil authority will have not only the right but also the duty to execute persons for the valid purpose of defending persons for whom the state is responsible.  This reaffirmation of the Church's teaching on self-defense is to be welcomed, even if it could have been accomplished in far more precise terms and concepts than the available texts and transcripts indicate.  But what Pope Francis seems now to have ruled out as always "inadmissible" is the state's executing a person for the purpose of applying a just (and therefore proportionate) penalty or punishment to a person duly convicted of a crime. 

What Pope Francis seems to be teaching is that, even when applied for the generally valid purpose of deterrence and to a duly convicted person to whom a proportionate penalty is due, the death penalty is always and everywhere immoral because it violates human dignity.  How executing in valid (and therefore proportionate) defense of persons is not a violation of human dignity, whereas executing a duly convicted wrongdoer as a punishment always and everywhere is a violation of human dignity, is an apparent contradiction that is not explained away.  Human dignity per se cannot be a good and sufficient reason not to kill a person if, as the Pope rather clearly states, self-defense, even including by killing a person, is sometimes both a right and a duty.

Setting this profound difficulty aside for the moment, I would like to conclude here with a different but deeply related line of inquiry, one that concerns Pope Francis's invitation, on December 17th in the remarks I have just been discussing, regarding how to judge (sic) those who in the past taught that the death penalty was in some cases morally acceptable:  

In past centuries, when the instruments available to us today for the protection of society were lacking and the present level of development of human rights had not yet been reached, recourse to the death penalty was sometimes presented as a logical and just consequence. Even in the Pontifical State this inhuman form of punishment has been resorted to, ignoring the primacy of mercy over justice.

This is why the new wording of the Catechism implies also assuming our responsibility for the past and recognizing that the acceptance of this form of punishment was the consequence of a contemporary mentality, more legalistic than Christian, which sacralized the value of laws lacking in humanity and mercy. The Church could not remain in a neutral position in the face of today’s demands to reaffirm personal dignity.

What are we to say about those persons, including the Popes, who accepted -- in the sense of authoritatively teaching the in-principle moral uprightness of -- the death penalty as, in Pope Francis's words, "the consequence of a contemporary mentality" (italics added)?  The then-contemporary morality was in fact, we are told by Pope Francis, immoral.  But how are we to think about the possible culpability of the Popes and everyone else (from the Fathers of the Church through and including Pope Benedict XVI) in teaching the in-principle morality of the death penalty as punishment?  It will not do to exonerate them, if indeed they need exonerating for holding and teaching allegedly objectively incorrect moral views, to say that their holding and teaching them was a "consequence" of the (defective) culture in which they lived.  It is the very possibility of human free choice, obviously, that makes moral assessment possible, and it would add the proverbial insult to injury to claim that our forebears weren't choosers but, in the relevant respect, "consequences."  What, after all, allowed Pope Francis the putative insight that the death penalty long approved by his Predecessors is, was, always has been, and always and everywhere will be in fact morally evil?

One set of answers to the complex questions about how to judge in the case of legitimate development of doctrine is provided by Judge John T. Noonan, Jr. (1926-2017).  Here is the crux of it:  "St Augustine and St. Thomas Aquinas were defenders of the lawfulness of human slavery and of the rightness of religious persecution.  Are we in a position to judge them as teachers of unjust doctrine?  It is evident, I believe, that if each generation is free to measure its predecessors morally, using the criteria now accepted, no one will escape condemnation.  We must be judged by the moral criteria we know.  Judgment of the status of past moral doctrine presents a different question." (Noonan, A Church that Can and Cannot Change, 200-01). 

Noonan thus suggests that persons should be judged by the moral criteria they knew, perhaps even the then-familiar "mentality," whereas doctrines must be judged, as Noonan elaborates in passages I have not quoted above, according to their conformity to the person of Christ.  But is it an exhaustive dilemma between persons-as-implementers-of-then-contemporary moral-criteria and doctrines-as-subjects-of-evaluation-according-to-transcendent-criteria?  I think not.  Those who press for valid development of doctrine are themselves engaging in morally praiseworthy, one might even say prophetic, witness.  But prophecy is risky business.  False prophets exponentially outnumber true prophets. 

What then of those who press for invalid "development" of doctrine?  The Catholic understanding is that valid development of doctrine occurs when what was implicit in the depositum Fidei is authoritatively made explicit.  In the face of a purported development that amounts in fact to no more than a comparatively attractive personal opinion, the judgment that cannot be blinked is that the purported doctrine, however attractive and no matter the sincerity of its proponent, is in fact false qua development of doctrine.  

The other judgment, however, concerns the culpability of the falsifier.  Here I think of something else Noonan wrote in the same vein, the valid development of doctrine:  "The Modernists took the idea of development and ran away with it.  Doctrine became the projection of human needs, changing in response to those needs. Control of doctrine by the objective content of revelation disappeared. . . . The Modernist position that human needs will shape doctrine carries the cost of eliminating any objective content; it is, as Pius X put it, 'the synthesis of all the heresies.'"  (Noonan, "Development in Moral Doctrine," 54 Theological Studies 662, 671-72 (1993) (citations, including to Pascendi (1907), omitted).  Noonan's touchstone, divine revelation in Scripture, of course establishes the moral rectitude of capital punishment in some circumstances.  See Edward Feser's work here

Even in December we can join Pope Francis in his prayer intention for this past October: "St. Michael the Archangel, defend us in battle."  The Modernists took the idea of development and ran away with it.

December 18, 2018 in Brennan, Patrick | Permalink

A bad misstep by the Ninth Circuit in a ministerial-exception case

Opinion hereInside Higher Ed commentary here.  The ruling is, put simply, nuts.  (Or, put more gently, "entirely incompatible with Supreme Court precedent.)  The Ninth Circuit acknowledged that:

[The fifth-grade teacher's] contract stated that she would work “within [St. James’s] overriding commitment” to Church “doctrines, laws, and norms” and would “model, teach, and promote behavior in conformity to the teaching of the Roman Catholic Church.” St. James’s mission statement provides that the school “work[s] to facilitate the development of confident, competent, and caring Catholic-Christian citizens prepared to be responsible members of their church[,] local[,] and global communities.” According to the school’s faculty handbook, teachers at St. James “participate in the Church’s mission” of providing “quality Catholic education to . . . students, educating them in academic areas and in . . . Catholic faith and values.” The faculty handbook further instructs teachers to follow not only archdiocesan curricular guidelines but also California’s public-school curricular requirements.

It is very difficult to see this ruling as anything other than an effort to ignore Hosanna-Tabor.  It's hard to be too confident that this mistake will be corrected en banc (given the Circuit), but it should be.  A fifth-grade teacher at a parochial school is a "minister", within the meaning of that decision.

December 18, 2018 in Garnett, Rick | Permalink

Monday, December 17, 2018

"The End of a Walking Dead Doctrine?"

Here is my contribution to a symposium sponsored by the good folks at SCOTUSblog on the upcoming memorial-cross case.  Here are the opening grafs:

About four and a half years ago, here at SCOTUSblogcommenting on the Supreme Court’s then-recent decision in Town of Greece v. Galloway, I noted that it had been a while since the justices “had shared with us their intuitions, impressions, aruspicies, and auguries – that is, what Justice Breyer calls their ‘legal judgment’ – in a clean-and-straightforward Establishment Clause case involving ‘religion in the public square.’” Well, they have been asked to do it again.

One of the questions presented in The American Legion v. American Humanist Association is “whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross.” That the question is posed this way says a lot, but not much that is complimentary or edifying, about the state of First Amendment doctrine. After all, and obviously, the monument at issue in Bladensburg, Maryland’s Veterans Memorial Park does not just happen to be “shaped like” a cross any more than the name of California’s largest city just happens to “sound like” one of the titles of the Blessed Virgin Mary. It is, in fact, a cross – a 40-feet-tall Latin cross that, for nearly a century, has recalled and honored 49 local soldiers who, as its original donors put it, “have not died in vain.” The memorial is constitutional not because its troubling resemblance may be excused but because – the lower court’s speculations about the semiotics of shrubbery-placement notwithstanding – it is not an “establishment of religion.” A judicial doctrine, precedent or “test” that says otherwise is, for that reason, unsound. . . . 

Comments and criticism welcome!

December 17, 2018 in Garnett, Rick | Permalink | Comments (0)

Richard Ekins's "Judicial Power Project"

I wanted to direct a little notice to the very fine "Judicial Power Project" run by Professor Richard Ekins. The project has put together a few very interesting programs. Here are two:

First, an online collection of essays, the lead piece of which is by John Finnis ("Judicial Power: Past, Present, and Future"), and subsequent responses by various distinguished jurists, with a reply by Professor Finnis.

Second, an online symposium on a new book by Paul Yowell, Constitutional Rights and Constitutional Design: Moral and Empirical Reasoning in Judicial Review. The book's core claims concern the mismatch between the empirical judgments made by judges in constitutional rights cases and the institutional capacity of courts to make such judgments. The online symposium contains responses by several prominent legal scholars and judges, including Professors Adrian Vermeule and Erin Delaney, as well as Professor Ekins himself.

December 17, 2018 in DeGirolami, Marc | Permalink

Friday, December 7, 2018

The Tradition Project, Part III: The Value of Tradition in the Global Context

Next week, the third and final conference of the Tradition Project kicks off in Rome: "The Value of Tradition in the Global Context." The conference is the product of the joint labor of three institutions: LUMSA University in Rome (with our colleague Monica Lugato taking the lead), Villanova's Eleanor H. McCullen Center for Law, Religion, and Public Policy (ably stewarded by our MOJ colleague, Michael Moreland), and the Center for Law and Religion at St. John's Law School (directed by Mark Movsesian and me).

This session will feature a public address, on December 12, by Associate Justice Samuel A. Alito, Jr., of the United States Supreme Court, and four private workshops on the conference themes, ranging over the political, cultural, and legal dimensions of the role of tradition in the world today. Rick Garnett and Adrian Vermeule will be in our number as well. Here is the program.

December 7, 2018 in DeGirolami, Marc | Permalink

Monday, December 3, 2018

Perry Dane on Corporations

MOJ readers know that I'm interested in the role and rights of religious institutions. (See, e.g., this and this.)  I also think that Prof. Perry Dane (Rutgers) is one of the most interesting law-and-religion scholars working.  So, I suppose it's a bit "overdetermined", as they say, that I'm recommending this paper of his:

This essay on Corporations is a chapter in an upcoming volume on economic theology edited by Stefan Schwarzkopf.

The secular study of corporations has long regularly focused on three sets of concerns: (1) Is the idea of corporate “personhood” only a convenient shorthand for a complex set of relationships among human beings or are corporations in some important sense “real entities” with rights, duties, interests, or even intentions of their own? (2) How do the various aspects of corporate personhood differ from the qualities of human personhood? (3) What are the proper purposes or missions of for-profit and not-for-profit corporations?

This essay examines these perennial questions through a distinctive theological lens. It considers, among other topics, doctrines in Jewish and Islamic law about the religious meaning of secular corporations, debates about the spiritual worth and moral responsibilities of for-profit corporations, and ideas in several faith traditions about the ontological status of religious communities.

The essay also discusses the role of the fraught idea of “idolatry” in conversations about corporations. And it ends by looking to Buddhist philosophy, contemporary neurological research, and secular theories of public choice and group decision-making to question the reigning assumption that there is a fundamental difference between “natural persons” such as human beings and “artificial persons” such as corporations.

December 3, 2018 in Garnett, Rick | Permalink

Sofia Carozza on Advent, neuroscience, and "Locke's Lonely Liberalism"

Sofia Carozza, a neuroscience-and-theology major at Notre Dame, has this very interesting reflection in the Church Life Journal on Advent, neuroscience, and "Locke's Lonely Liberalism."  Just a bit:

. . . Neuroscience alone shows us that our development and flourishing takes place through relationships of love. But in providing a corrective to Locke, developmental neuroscience is well supplemented by a Thomistic account of the human person. Such an account is particularly helpful when the development of the virtues is understood through the interpretive key of “second-person relatedness.”[9] This Thomistic concept, as argued by Andrew Pinset, is the idea that the “I” is formed in dialogue with the “you,” in an irreducible dialectical relationship. Second-person relatedness begins between the child and her parents, a relationship in which she starts to develop the human virtues and gain agency as a moral individual. However, Pinset argues that second-person relatedness is a continuum of relationship that extends even to the child’s connection with God. Through this divine I-Thou relationship, she experiences friendship with God and is thus bestowed the theological virtues.

This account of the human person accords well with neuroscience research. . . .

December 3, 2018 in Garnett, Rick | Permalink

Saturday, December 1, 2018

Feast of Edmund Campion and the English martyrs

Several years ago, our own Fr. Robert Araujo, S.J. (RIP) posted this, about Campion and other English martyrs:

Today, the first of December, is a special day in the liturgical calendar of the Society of Jesus—the religious institute to which I belong. It is the feast of the martyrs Saints Edmund Campion, Robert Southwell, and companions. Of course the English and Welsh Church offered up a good number of members of other institutes, the secular priesthood, and the laity who would not compromise on their Catholic faith but, by the same token, did not betray their loyalty as subjects of the temporal realm. In spite of what the temporal powers demanded of them, they simultaneously remained true to the faith and their sovereign.

It could have been Campion and Southwell and their companions that Cardinal George had in mind when he recently figuratively (and, perhaps, literally) stated that he would likely die in his bed; his successor in prison; and the latter’s successor a martyr for doing what Saint Paul in the letter to Titus reminds all Christians to be their duty: to encourage others in sound doctrine and to refute those who oppose it. [Campion and some of his companions were teachers, and they understood the value of authentic academic freedom to search for and present in public fashion the truth of God.] While such talk may be dismissed as hyperbole in the present age, is it?

We do not have to look far today to see that there are still martyrs, usually folk from ordinary walks of life, who are dying for the Catholic faith and for no other reason. This has been the history of the Church since its beginning; the tradition continues because people like Campion and his fellow martyred Jesuits understood well that they joined the enterprise of the Society of Jesus for one purpose alone: to strive especially for the defense and propagation of the faith and the progress of souls in Christian life and doctrine.

This is evident from reading Campion’s apologia which Father Campion submitted to Queen Elizabeth I’s Privy Council after his capture and before his execution. [The apologia (oft referred to as “Campion’s Brag”) is HERE] His words do not betray any disloyalty to his sovereign, but they confirm the sincerity and profundity of his faith in Christ and His holy Church. The so-called Brag is worth studying carefully, but these words stand out for me and, perhaps, others:

…The expense is reckoned, the enterprise is begun; it is of God, it cannot be withstood. So the faith was planted: so it must be restored…

Saints Edmund Campion, Robert Southwell, and companions: pray for us!

Don't miss the chance today to (re)read "Campion's Brag"!

December 1, 2018 in Garnett, Rick | Permalink