Thursday, November 12, 2009
I'm in beautiful Newark, where Seton Hall is hosting a marvelous conference titled Religious Legal Theory: The State of the Field. Most of the conversations are of direct interest to MoJers. In my own remarks, I tried to lay out some of the methodologies marking Catholic legal theory, distinguishing CLT that proclaims from CLT that describes, and distinguishing the prophetic from the pragmatic. I also described my hesitation when a newspaper reporter interested in my forthcoming book asked "So are you Catholic?" after we had discussed a couple of cases involving Catholic Charities:
Perhaps my fear is that the religious label, especially the Catholic label, will be an easy way to pigeon-hole me and more easily dismiss my opinions as pre-ordained conclusions dictated by the fact of my submission to an authority beyond reason, rendering them less authentic and even less human. In this regard, my hesitation likely reflects my own misconception of what it means to be a Catholic legal scholar and about what it means to be a Catholic. My faith should be the impetus to delve even more deeply into the heart of what it means to be human, to grapple unflinchingly with the reality of our existence. In a real sense, Catholic legal theory exhibits much of the same promise and peril of my own personal faith journey. When I use faith as an escape, when I toss off trite prayers to numb myself to the tragedy that unfolds around me, rather than praying to express and share in the depth of that grief, I am rightly dismissed by the grieving. Similarly, when I use faith in my scholarship as a bludgeon to wield against those who reject my worldview, or when I dress up my unsupported assertions as self-evident simply because they come from my faith tradition, I am rightly dismissed by those legal scholars who are authentically struggling with the question of how imperfect people should govern themselves in an imperfect world. The Catholic legal theory project has much to contribute to the legal academy, starting with the anthropological question of what it even means to be human. Our contribution depends not just on the relevance of our answers, but also on the humanity with which we extend those answers.
Being asked to reflect -- and articulate those reflections publicly -- on the Catholic legal theory project was a helpful impetus to step back and wrestle with the question, what is the difference, if any, between a Catholic doing legal theory and "Catholic legal theory?" A further impetus is David Skeel's articulation this afternoon of (evangelical) Christian legal theory, which sounded, as Skeel framed it, a lot different than Catholic legal theory -- i.e., directed toward an audience of one's co-religionists, best pursued as a side-interest to "regular" scholarship (at least pre-tenure), and still difficult to discern except on the margins of the legal academy. (On this last point, the rollicking response to Skeel's article on Christian legal scholarship continued today, with David Caudill's "On Skeel's Rhetorical Invention of a Failed Project.") A recurring issue for me is the extent to which Christian (or Catholic) legal theory needs to be explicit about its underlying religious commitments in order to fit within the genre (and should it even be a genre?). I also enjoyed listening to thoughtful papers from Bob Cochran, John Coverdale, John Nagle, Marc Poirer, and Sam Levine. More tomorrow . . .