Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Sunday, July 31, 2005

Ferguson, Krugman, Britain & France

Here are two, possibly complementary, op-eds -- one by Niall Ferguson about the apparent decline in religion (or, religiosity) in Britain, and the other by Paul Krugman on the state of things related to work and family in France.  Ferguson writes:

Why have the British lost their historic faith? Like so many difficult questions, this seems at first sight to have an easy answer. But before you blame it on "The Sixties" - the Beatles, the Pill and the mini-skirt - remember that the United States had all these earthly delights too, without ceasing to be a Christian country. To be frank, I have no idea what the answer is. But I do know that it matters.

Chesterton feared that, if Christianity declined, "superstition" would "drown all your old rationalism and scepticism". When educated friends tell me that they have invited a shaman to investigate their new house for bad ju-ju, I see what Chesterton meant. Yet it is not the spread of such mumbo-jumbo that concerns me half so much as the moral vacuum our dechristianisation has created. I do not deny that sermons are sometimes dull and that British congregations often sing out of tune. But, if nothing else, a weekly dose of Christian doctrine will help to provide an ethical framework for your life. And I certainly do not know where else you are going to get one.

Over the past few weeks we have all read a great deal about the threat posed to our "way of life" by Muslim extremists like Muktar Said-Ibrahim. But how far has our own loss of religious faith turned this country into a soft target - not so much for the superstition Chesterton feared, but for the fanaticism of others?

Echoing an argument that some have pressed here at MOJ, Krugman writes:

The point is that to the extent that the French have less income than we do, it's mainly a matter of choice. And to see the consequences of that choice, let's ask how the situation of a typical middle-class family in France compares with that of its American counterpart.

The French family, without question, has lower disposable income. This translates into lower personal consumption: a smaller car, a smaller house, less eating out.

But there are compensations for this lower level of consumption. Because French schools are good across the country, the French family doesn't have to worry as much about getting its children into a good school district. Nor does the French family, with guaranteed access to excellent health care, have to worry about losing health insurance or being driven into bankruptcy by medical bills.

Perhaps even more important, however, the members of that French family are compensated for their lower income with much more time together. Fully employed French workers average about seven weeks of paid vacation a year. In America, that figure is less than four.

So which society has made the better choice?

There are some disputable factual premises doing a fair bit of work in Krugman's piece, but -- putting those aside -- the point is a provocative one.


July 31, 2005 | Permalink | TrackBack (0)

Friday, July 29, 2005

Kmiec on Catholic Judges

Here is Pepperdine law prof (and former Notre Dame law prof!) Doug Kmiec, in the Wall Street Journal, writing (I think) sensibly about Catholic judges, recusal, Roberts, etc.:

Yes, the late Pope John Paul II admonished Catholic public officials to work legislatively to limit abortion--something that even most Democrats proclaim to be doing at least during general elections. But there is not one iota of church teaching demanding that a judge or justice exceed the scope of his office to undo, on solely religious grounds, the public law of abortion or any other matter.

In this supposed controversy it is fitting to recall St. Thomas More, known to history for resigning the chancellorship of England when he failed to persuade Henry VIII not to declare himself head of the church. More is revered as a martyr for dying "the King's good servant, but God's first." But as the patron saint of lawyers and statesmen, More is far better remembered for his earnest efforts, at every turn, to avoid inescapable conflict among law, faith and public duty.

Judge Roberts listens carefully to the questions he is asked, and the extreme premise of Sen. Durbin's question--as reported--was a judicial action requiring an immoral act. One would hope that all Americans, Catholic or otherwise, would recuse themselves from that.


July 29, 2005 | Permalink | TrackBack (1)

Liberal governments and support of religion

A few days ago, in a post called "the Government's view of the content of religion," I asked (among other things), "[w]ould it be wise or wrong [or unconstitutional?] for a government to undertake, as a matter of policy, to push the doctrines of a particular religion in a government-approved direction, or to support a particular government-approved faction within a religious tradition, in order to serve what the government regards as the common good?"

Check out this very detailed and thoughtful post, at the Positive Liberty blog, by Jonathan Rowe, responding to my thoughts.  I don't necessarily with (what appear to be) Rowe's assumptions about the views and wants of "religious conservatives", but he really gets to some very important and interesting questions.


July 29, 2005 | Permalink | TrackBack (0)

What can a judge do?

Thanks to those who have been adding their insights to the questions about judges, especially Catholic ones, and their judicial responsibilities to uphold the rule of law in the exercise of their duties. I am not suggesting that Judge Gee of the old Fifth Circuit provides answers to this problem, but he does offer some words worth taking into consideration. As a member of the Fifth Circuit, he upheld a District Court Decision critiquing an affirmative program that worked its way to the Supreme Court under Title VII of the Civil Rights Act. When the Supreme Court reversed the District and Circuit Courts and remanded the case back to the Fifth Circuit, the latter court issued its decision Download judge_gee_weber.doc . Judge Gee had these words to offer regarding what could be done with a decision that he found “profoundly wrong”:

Obedient to the mandate of the Supreme Court, we vacate the trial court’s judgment, as well as ours affirming it, and remand the cause to that court for further proceedings in conformity with the opinion above.

Then, speaking for himself, he offered these thoughts:

For myself only, and with all respect and deference, I here note my personal conviction that the decision of the Supreme Court in this case is profoundly wrong.

That it is wrong as a matter of statutory construction seems to me sufficiently demonstrated by the dissenting opinions of the Chief Justice and of Mr. Justice Rehnquist.  To these I can add nothing.  They make plain beyond peradventure that the Civil Rights Act of 1964 passed the Congress on the express representation of its sponsors that it would not and could not be construed as the Court has now construed it.  What could be plainer than the words of the late Senator Humphrey defending the bill against the charge that it adumbrated quotas and preferential treatment that “the title would Prohibit preferential treatment for any particular group . . . .”? The Court now tells us that this is not so.  That it feels it may properly do so seems to me a grievous thing.

But sadder still tragic, in my own view is the Court’s departure from the long road that we have travelled from Plessy v. Ferguson, toward making good Mr. Justice Harlan’s anguished cry in dissent that “(o)ur Constitution is color-blind, and neither knows nor tolerates classes among citizens.”  I voice my profound belief that this present action, like Plessy, is a wrong and dangerous turning, and my confident hope that we will soon return to the high, bright road on which we disdain to classify a citizen, Any citizen, to any degree or for any purpose by the color of his skin.

Though for the above reasons I think it gravely mistaken, I do not say that the Court’s decision is immoral or unjust indeed, in some basic sense it may well represent true justice.  But there are many actions roughly just that our laws do not authorize and our Constitution forbids, actions such as preventing a Nazi Party march through a town where reside former inmates of concentration camps or inflicting summary punishment on one caught redhanded in a crime.

Subordinate magistrates such as I must either obey the orders of higher authority or yield up their posts to those who will.  I obey, since in my view the action required of me by the Court’s mandate is only to follow a mistaken course and not an evil one.

One of the difficulties judges and the rest of us face is how to make the distinction between the “mistaken course” and an “evil one.” This brings up the point about material and formal cooperation on which Ed Hartnett is working. Judge Gee does not mention recusal as an option, but he does mention resignation. That is an extreme measure that may lead to a good and virtuous person leaving an office in which he or she should remain. But, I think what Judge Gee did by putting into the public record his concerns and his justifications for them reveals that there are alternatives, besides recusal and resignation, to what a judge can do in a case where he or she concludes that some higher human authority, be it a legislature or another judge, is “profoundly wrong.” RJA sj

July 29, 2005 in Araujo, Robert | Permalink | TrackBack (0)

Civil Disobedience and Judicial Power

Immigration lawyer Chuck Roth offers the following reflections on my earlier query regarding civil disobedience and the Catholic judge:

In our legal system, it is the role of judges to say "what the law is." In our judicial system, to rule that the law says X when in fact you know that it says Y is, in effect, a lie.  One cannot do evil that good should come of it.  Lies are immoral.  So at the level of legal analysis, you cannot willfully misstate the law, even to achieve a good end like saving a life.

I think the Judge Sprizzo example is inapposite.  Juries find not only facts, but (implicitly) decide that their sense of justice does not preclude conviction.  I see jury nullification as a crucial part of the jury's raison d'etre, as a democratic check on the political branches.  Thus, I don't view jury nullification as a lie.  Because Judge Sprizzo was acting as judge and jury, he assumed the powers of jury nullification as well.  As such, it was no lie for him to decline to convict, precisely because he was acting as jury, not judge.  So I support what he did; but that tells us about the role of a jury, not the role of a judge.

Here is an example of civil disobedience for a Judge.  A Court of Appeals judge is on a three-judge panel, and dissents, admitting that settled law calls for the conclusion reached by the majority, but refusing to consent to it.  This would not be a lie, because it acknowledges the reigning law.  But it would be a conscientious refusal to conform to that law. 

But what if two judges on the panel felt morally obligated to dissent?  This is the same circumstance as a District Court judge, on remand from the Court of Appeals, required by law to order, e.g., the destruction of fertilized eggs.  It seems to me that power changes the equation.  It is part of the nature of civil disobedience that one must be in a position of submitting to power, not wielding it.  In being civilly disobedient, one respects the law, recognizes its authority, and submits to punishment.  But where disobedience becomes so powerful as to overmaster the law, it is not susceptible to punishment, and thus cannot recognize the law's authority by submitting to legal penalties.

If it is correct to conclude that civil disobedience requires a situation of relative powerlessness, it follows that Judges can only be civilly disobedient when in the dissent.
All that being said, civil disobedience is not the only option in the face of injustice endorsed by authority.  As your citation of Garrison suggests, revolution is another alternative.  And I would see the act of a judge wielding power in disobedience to higher appellate authority (either as a Dist Ct judge, or in a majority) as revolution.  There may be circumstances - e.g., Bonhoeffer and Hitler - where one is morally permitted, perhaps even obligated, to rebel.  But in starting a revolution, as with any just war, one would have to carefully and prudently consider the likely effects as well as the causus belli.  So the question becomes: is the legal system so far gone as to require revolution?  Fr. Neuhaus seems (seemed?) to think so.  I am dubious, as, it sounds, are you.

July 29, 2005 in Vischer, Rob | Permalink | TrackBack (0)

Thursday, July 28, 2005

David Hart on the "Anti-Theology of the Body"

Check out this essay, "The Anti-Theology of the Body," by David Hart, in the latest issue of The New Atlantis.  Here is a tantalizing bit:

The difference between John Paul’s theological anthropology and the pitilessly consistent materialism of the transhumanists and their kith—and this is extremely important to grasp—is a difference not simply between two radically antagonistic visions of what it is to be a human being, but between two radically antagonistic visions of what it is to be a god.

Here is the conclusion:

It may well be that the human is an epoch, in some sense. The idea of the infinite value of every particular life does not accord with instinct, as far as one can tell, but rather has a history. The ancient triumph of the religion of divine incarnation inaugurated a new vision of man, however fitfully and failingly that vision was obeyed in subsequent centuries. Perhaps this notion of an absolute dignity indwelling every person—this Christian invention or discovery or convention—is now slowly fading from our consciences and will finally be replaced by something more “realistic” (which is to say, something more nihilistic). Whatever the case, John Paul’s theology of the body will never, as I have said, be “relevant” to the understanding of the human that lies “beyond” Christian faith. Between these two orders of vision there can be no fruitful commerce, no modification of perspectives, no debate, indeed no “conversation.” All that can ever span the divide between them is the occasional miraculous movement of conversion or the occasional tragic movement of apostasy. Thus the legacy of that theology will be to remain, for Christians, a monument to the grandeur and fullness of their faith’s “total humanism,” so to speak, to remind them how vast the Christian understanding of humanity’s nature and destiny is, and to inspire them—whenever they are confronted by any philosophy, ethics, or science that would reduce any human life to an instrumental moment within some larger design—to a perfect and unremitting enmity.


July 28, 2005 | Permalink | TrackBack (0)

Interesting Conference at Notre Dame

Here's the announcement for this Fall's conference sponsored by the Notre Dame Center on Ethics and Culture:



Joy in the Truth: The Catholic University in the New Millennium is a conference whose mission is shaped by Pope John Paul II’s words from the opening of his 1990 apostolic constitution on Catholic universities, Ex Corde Ecclesiae:  "Without in any way neglecting the acquisition of useful knowledge, a Catholic University is distinguished by its free search for the whole truth about nature, man, and God. The present age is in urgent need of this kind of disinterested service, namely of proclaiming the meaning of truth, that fundamental value without which freedom, justice and human dignity are extinguished (no. 4).

Philip Gleason, Professor Emeritus of History at the University of Notre Dame and author of the seminal Contending with Modernity: Catholic Higher Education in the Twentieth Century, will inaugurate the conference with a keynote address on Thursday evening, September 29 at 7:30 p.m.  The conference will conclude with a festive banquet on Saturday evening, October 1, featuring remarks by the recently inaugurated President of the University of Notre Dame, Rev. John Jenkins, C.S.C.  The conference, running from September 29 ­ October 1, will bring together scholars representing all the main academic fields to discuss a broad range of issues relating to the way in which the Catholic University can best respond to the Church's call for a renewal of Catholic institutions of higher learning. The conference will also be enriched by the experience and wisdom of participants from other kinds of Christian institutions, and from secular institutions as well.

Our invited speakers are—

Bishop John D’Arcy (Diocese of Fort Wayne-South Bend)
Rev. Matthew Lamb (Ave Maria College)
Robert Sloan (President Emeritus, Baylor University)
John Finnis (Notre Dame/Oxford)
John Cavadini (Notre Dame)
Ralph McInerny (Notre Dame)
Helen Alvaré (The Catholic University of America)
David Lyle Jeffrey (Baylor University)
Rev. Kevin Wildes, S.J. (President, Loyola University, New Orleans)
Don Briel (University of St. Thomas, St. Paul, Minnesota)
Rev. Wilson Miscamble, C.S.C. (Notre Dame)
Don Schmeltekopf (Baylor University)
H. Tristram Engelhardt, Jr. (Rice University)
Michael Beaty (Baylor University)

Among the themes to be discussed by both the invited speakers and by those who submitted proposals are —

-       Academic freedom
-       The Catholic University and ecclesiastical governance
-       The distinct approaches to higher education found within various Catholic intellectual traditions
-       The distinction between Protestant and Catholic approaches to higher education
-       The enduring influence of seminal figures such as Augustine,
Aquinas, Francis of Assisi, Bonaventure, Ignatius Loyola, John Paul II, Newman, Maritain, and Edith Stein
-       The Catholic character of particular disciplines such as law, philosophy,
theology, and the arts
-       The connection between Catholic social teaching and Catholic higher education
-       New curricular initiatives
-       The “shadow curriculum” that haunts Catholic universities
-       The value of Great Books programs to Catholic higher education
-       What Christian universities can learn from Nietzsche

There will also be panels devoted to—
-       What Catholic universities can learn from non-Catholic ones
-       Transforming university administration into ministry
-       Duquesne’s doctoral program in Rhetoric as a model for Catholic
education for service
-       St. Louis University’s Micah House as a model for integrating faith, curriculum and social justice
-       Luigi Giussani and the risk of education
-       Love of knowledge as an intellectual virtue

We expect several hundred people to come to Notre Dame this fall to attend Joy in the Truth.  The total number of presentations will once again top the 100 mark.


Inspired by Pope John Paul II’s insistent call to activate a great campaign in
support of a new Culture of Life, the Notre Dame Center for Ethics and Culture launched in the Jubilee Year of 2000 what would turn out to be our annual fall conference and the flagship of our conference program. By promoting a “Culture of Life,” the Center takes as its mission the practical embodiment of the ethical and cultural vision expressed in Pope John Paul II’s Encyclical Letters, Veritatis Splendor, Centesimus Annus, Evangelium Vitae, and Fides et Ratio. At the core of this moral vision is a passionate commitment to the inherent worth of every human life from conception to natural death, the compatibility of faith and reason, and the connection between truth and genuine human freedom.

Sponsored by a generous grant from the Maas Family Excellence Fund, the
Center’s fall conference began as a triennial conference series dedicated to the proposition that the ideals expressed by the Magisterium of Pope John Paul II are the best antidote to our current cultural maladies. The series started, accordingly, with a conference entitled A Culture of Death (2000), which was devoted to the diagnosis of the precise nature of our current cultural maladies. It was followed by A Culture of Life (2001), which reflected more positively on the elements of a genuine renewal of culture. In a conference entitled From Death to Life: Agendas for Reform (2002), the triennial series concluded with more intense deliberation on the practical means of building a new Culture of Life.

Due to the huge success of this triennial series, the Center committed to
making the fall conference an annual event. So, once again with the generous
sponsorship of the Maas Family Excellence Fund, the conference series continued with Formation and Renewal (2003), where attention was given to the sources of moral, intellectual and spiritual formation available to a culture marked by a loss of meaning and direction. The 2004 conference, Epiphanies of Beauty: The Arts in a Post-Christian Culture, considered the role played by the arts in helping make manifest the full truth of the human person.

Throughout these first five conferences the Center has been very proud to
sponsor major addresses by a host of prominent contemporary thinkers,
including: Francis Cardinal George, Alasdair MacIntyre, John Noonan, Sr. Helen Prejean, George Weigel, Ralph McInerny, Marvin O’Connell, Michael Baxter, Helen Alvaré, Ralph Wood, Tristram H. Engelhardt, Stanley Hauerwas, Margaret Monahan Hogan, David Lyle Jeffrey, Thomas Hibbs, Joseph Bottum, Thomas Gordon Smith, Jorge Garcia, Laura Garcia, Barbara Nicolosi, Gregory Wolfe and Gerry Bradley.

This is not even to mention the scores of scholars from across the academic
spectrum and also outside of academia who deliver contributed papers to the conference each year—a number that now regularly tops the 100 mark! In
accepting proposals the Center takes special care to include graduate and
undergraduate students, and we are especially proud that each fall one or two high school students deliver their first professional paper at the conference.

But beyond providing a venue for academic discussion of the highest
caliber, the Center’s annual fall conference has also aimed to be a place where those sharing a broadly similar outlook on ethical and cultural issues can gather in a friendly atmosphere in order to build a genuine community of scholars. Such community is fostered not only by the formal discussions, but also by the shared meals and other opportunities between sessions to form personal and professional relationships.

Additional Information

The cost of the conference includes a continental breakfast and a served lunch and dinner.  All conference sessions and meals will be held at Notre Dame’s McKenna Hall.  For more information on “Joy in the Truth: The Catholic University in the New Millennium,” please visit our web site at

July 28, 2005 | Permalink | TrackBack (0)

Stephen Smith on Catholic lawyers

Our own Steve Brainbridge mentioned the article a few weeks ago (I think), but I thought I'd put in another plug for Stephen Smith's essay, "Cultural Change and Catholic Lawyers."  For all you law students out there (there are some out there, I hope!), this is must-reading.


July 28, 2005 | Permalink | TrackBack (0)

Bradley Lewis on the Common Good

Time and again on this blog, we've returned to the notion of the Common Good, and to the importance of defining properly that notion.  (Here, for example, is an earlier post about Paolo Carozza's very helpful take on the matter).  So, I'm happy to pass on the news that Catholic U.'s philosopher Bradley Lewis -- who has been visiting this summer at Notre Dame -- has a very helpful paper, "The Common Good in Classical Political Philosophy," which is forthcoming in a symposium on "The Professions and the Common Good," to be published in Current Issues in Catholic Higher Education.  (Unfortunately, I don't have a link to the essay, but I'm sure Professor Lewis would be happy to send copies).  Like Carozza, Lewis emphasizes that "[t]he good of individual persons and other groups is in an important way constitutive of the common good."  I was also struck by the claim that "[t]he common good is served . . . by particular goods being maintained by particular persons and by the common good as a whole being a separate and distinct material concern."

Maybe Vince, who also writes on this subject, has some thoughts?


July 28, 2005 | Permalink | TrackBack (0)

50 Years of Ralph McInerny

Here is a nice tribute to Notre Dame's legendary and beloved Thomist, teacher, and mystery novelist, Professor Ralph McInerny.

July 28, 2005 | Permalink | TrackBack (0)