The second annual Scarpa Conference will be held on October 16, 2007, in Villanova University's Connelly Center. Its topic will be "The Judicial Office in Our Constitutional Democracy: Avoiding Dogmatism on a Disputed Question." Please mark your calendars, and please spread the word to others who might be interested. All are welcome. Details about registration will be available as the time approaches. Mark Sargent and I hope to have the opportunity to welcome lots of MoJers and friends-of-MoJ to Philadelphia and Villanova for what promises to be a rich discussion and perhaps colorful discussion of a deeply important and widely debated cluster of issues in (Catholic) legal theory.
Justice Antonin Scalia will deliver the keynote address. Also presenting papers at the Conference will be Professor Paul Kahn, Professor Jean Porter, Professor James R. Stoner, and Professor Jeremy Waldron.
Paul Kahn is the Robert W. Winner Professor of Law and the Humanities and Director, Orville H. Schell, Jr. Center for International Human Rights at the Yale Law School. Professor Kahn is the author of Legitimacy and History: Self-Government in American Constitutional Theory; The Reign of Law: Marbury v. Madison and the Construction of America; The Cultural Study of Law: Reconstucting Legal Scholarship; Law and Love: The Trials of King Lear; Putting Liberalism in Its Place; and Out of Eden: Adam and Eve and the Problem of Evil.
Jean Porter is the John A. O'Brian Professor of Theology at The University of Notre Dame. Professor Porter is the author of Natural and Divine Law: Reclaiming the Tradition for Christian Ethics; Nature and Reason: A Thomistic Theory of Natural Law; Moral Action and Christian Ethics; and The Recovery of Virtue: The Relevance of Aquinas for Christian Ethics.
James R. Stoner, Jr., is Professor of Political Science at Louisiana State University. Among his many writings are Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism and Common Law Liberty: Rethinking American Constitutionalism.
Jeremy Waldron is University Professor at New York University. He was previously University Professor at Columbia University. Professor Waldron came to Columbia from Princeton University, where he was the Laurance S. Rockefeller Professor of Politics. Among Waldron's books are God, Locke, and Equality: Christian Foundations of Locke's Political Theory; The Dignity of Legislation; Law and Disagreement, and The Right to Private Property.
SECOND ANNUAL SCARPA CONFERENCE
IN CATHOLIC LEGAL STUDIES
The Judicial Office in Our Constitutional Democracy:
Avoiding Dogmatism on a Disputed Question
Aristotle taught that ideally we should prefer to be ruled by the animate justice of the wise man, but prudentially we must prefer judges who give effect to written law. Thomas Aquinas agreed: "Since . . . the animate justice of the judge is not found in every man, and since it can be deflected, it was necessary, whenever possible, for the law to determine how to judge, and for very few matters to be left to the decision of men." Aquinas taught, furthermore, that faced with an unjust law, the judge must refuse to proceed to judgment. The judge was to be a twice-measured measure - first by the written law, then by justice. Contemporary Catholic social doctrine is in accord.
From a range of starting points, many contemporary legal and political theorists reject a justice-based limitation on the judicial function. From the left, the leading argument is that "justice" is inevitably only a cover for politics, with the result that the judge should not be empowered to substitute her politics for that of the majority. From the right, the predominant argument is that a proper commitment to democracy requires a democracy-forcing judicial office. Justice Antonin Scalia has urged a "dogmatic democracy."
The Second Vatican Council (1962-65) was, remarkably, silent on the topic of democracy. Although Catholic social teaching since the Council has offered encouragement to those working on behalf of democracy, it has consistently denied that a democratic pedigree is sufficient to justify legislation or judicial judgment. The Compendium of the Social Doctrine of the Church (2004) warns against theories of political legitimacy that would exempt the products of democratic process from institutional moral scrutiny.
How are we to define, so as to be able to legitimate, the judicial office in our constitutional democracy? "The judicial power is neither a platonic essence nor a pre-existing empirical classification," Paul Bator observed. "It is a purposive institutional concept, whose content is a product of history and custom distilled in the light of experience and expediency." In the spirit suggested by Bator, the Second Annual Scarpa Conference in Catholic Legal Studies will inquire into how to determine the metes and bounds of the judicial office, with special attention to its relationship to democratic legitimacy and to the unique demands of the modern administrative state.
By bringing the perspectives of the Catholic tradition into dialogue with those of contemporary Anglo-American jurisprudence and political theory, the Conference will provide an opportunity to develop fresh critical perspectives on the "purposive institutional concept" that, as a matter of fact, shapes the judicial practice that in turn decides the directions that we can or cannot take in this democracy. If the majority loses sight of the demands of justice, natural law, and natural right, does political morality or constitutionalism demand that the judge refrain from going beyond the positive law? In the long run, can we be "dogmatic" about democracy?