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.

Wednesday, November 24, 2010

Criminal Law and Catholic Social Thought

For those who are interested in criminal law, the Ohio State Journal of Criminal Law is a relatively new peer reviewed periodical that publishes shorter and less heavily footnoted interventions than one generally finds in other legal journals.  In the latest issue, I've got a brief reaction piece to Professor Anders Walker's interesting article a couple of issues back.  Walker discusses the origins of the criminal law casebook as it largely exists today and offers some prescriptions for change to the course, among which are an increasing, if not exclusive, focus on case law and a concerted movement away from more theoretical discussion about the purposes, functions, and justifications of criminal prohibition and punishment.  As I note in my response, Walker's prescriptions are in keeping with much that is now in vogue in legal education reform, and I suggest some reasons for skepticism about what Walker advocates.  (For a very different response to Walker's article that, while touching on distinct issues, is more sympathetic to it and well worth reading, see Professor Chad Flanders's piece).  

The exchange got me thinking about the range of connections between Criminal Law and Catholic Social Thought, a seminar I just taught for the first time at St. John's.  One could approach the question of connections between the two in a number of ways: a first might be substantive -- for example, involving issues like the legal and moral propriety of the death penalty, or the range of reasons why it might be legitimate to punish someone.  Another might compare the ways in which ideas of "rights" as compared with ideas about "human dignity" shape the way that we think about the function of criminal law.  A third, if the course is approached more distinctly from the point of view of what "social justice" demands, might be to ask questions about whether criminal law is (or is capable of) providing it.  Yet another -- one that occurred to me as I read Russell Powell's post below -- is about the relationship of crucial terms like "complicity" in criminal law (what gives rise to accomplice liability) and "complicity" as it is used more commonly, or even from a theological point of view.

But the connection that I want to focus on here is more a meta-question.  It is the question of why it is that a course like Catholic Social Thought and the Law, or Criminal Law, ought to be worth studying at all in law school. 

In my CST course, we begin in the very first class with Ex Corde, in order to have a sense for what the reasons might be that a Catholic institution might want to offer the course.  And in a previous incarnation of the course, we also read an essay by Michael Oakeshott called, "The Study of Politics in a University."  In it, Oakeshott inquires after what University study ought to be all about, and concludes that the reason to study any particular subject in a University, as opposed to a vocational school, is not for the practical uses to which the information obtained in the course can be put but for the traditions of thought and inquiry to which it exposes students.  "There are large tracts of the human past," says Oakeshott, "arts and literatures, laws and customs, happenings in the world, the thoughts that men have entertained, their inventions and devices" that are "worth" studying for the richness that they can bring to a student's life, the layering and complexity that they can cultivate in an educated person.  Lawyers, no less than any other student, will profit from the engagement.

As I say in the piece, none of this is to deny that law school is in important respects a vocational school, and that people enter it in order to learn a professional trade.  It is undoubtedly true that close study of a particular jurisdiction's law for its immediate utility to a future client is a function of law school education -- and client service and employability is certainly a reason -- and an important one -- to offer criminal law (though I wonder very much whether it is a reason to require criminal law; for more on that, see my response).  But in other, and no less important, ways, the value of courses like criminal law and Catholic Social Thought lies elsewhere.  Catholic Social Thought partakes of the same quality that was perhaps in the eminent legal scholar Sanford Kadish's mind when he described what is worthwhile about the teaching and learning of criminal law.  "Almost liberal arts," he said.  If I might amend that only slightly, I'd say, "Different than liberal arts, but less in quality than in mood."  At the end of my response up above, I offer this thought about criminal law: "Criminal law, as much as any other legal subject, can awaken in students the realization that a substantial overlap between legal and liberal learning does, in fact, exist -- for them and, in teaching them, for us."

I think, and hope, that the same may be said for Catholic Social Thought.


DeGirolami, Marc | Permalink

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Great post, Marc. Thanks!

Posted by: Rick Garnett | Nov 24, 2010 2:55:19 PM

Thanks, Rick. Some of the approach to CST in my course is influenced by the structure I saw in your syllabus, for which I'm grateful.

Posted by: Marc DeGirolami | Nov 24, 2010 4:10:07 PM

I enjoyed your article in the Ohio State Journal. The foundation of it seems more Hobbesian than Catholic though. Though I thought it was well -reasoned, there seemed to be a conceptual jump precisely by way of the quote from Phillip Rieff --perhaps another example of "commentary by proxy". The numinous emotions in society that lie behind criminal sanction are not in the same category, it seems to me, as "creedal" matters, which you seem to be using Rieff to suggest. This is so even if they are attenuated or transmogrified by "modern casuistries", a delicious Rieffian description though it is. History seems to bear this analysis out. For just one example, the Code of Chivalry that was so influential in our shared culture, often ran counter to creedal assertions strictly considered, and which were codified in Canon Law at the period. Yet Code of Chivalry certainly produced very strong emotions and sanctions in the society at the period. By the way, one way to see the impetus behind the Pseudo-Isidorean decretals at an earlier stage was the attempt to create a canonical counter-weight to the increasing extreme secularization of moral sanctions and power in the hands of sovereigns and societal elites (i.e. not the "creedal" authorities, prelates), which tendency later achieved efflorescence in the quite non-creedal force of the Code of Chivalry. As has been noted by many, knightly morality was often quite different from creedal orthodoxy, even though knights were at the same times very pious. History is often a fine mirror for modern perplexities.

Posted by: Peter Paul Fuchs | Nov 25, 2010 3:29:36 PM

Mr. Fuchs, thank you for your comment, and for reading my article. It is a pleasure when people take the time to read one's work.

Whether the piece is "Catholic" or "Hobbesian" is not a question I am qualified to answer, though I feel fairly confident that Philip Rieff is neither.

As for "commentary by proxy," I'm afraid I'm often guilty of it, since other people generally have said the things I think better than I ever could.

Posted by: Marc DeGirolami | Nov 26, 2010 3:45:23 PM

Mr. DeGirolami,

Well, you are welcome, it was a good piece on a topic that interests me. The difference between a Catholic and Hobbesian viewpoint would be the following in terms of the history of ideas. The Catholic ethos at its best -- which I am sure you have a sense at this point I don't often think is achieved in the societies in which the Catholic Church is active -- represents a principled openness to the possibility of human intervention in the circumstances of life. Since it emphasizes Faith and Works, the primary datum of life cannot be just fear, because one can do something about that fear. Therefore religious belief is connected with the human ability to change the world in some way. By contrast Hobbes represents a extreme form of the negation of the that view. The world is seen as utterly corrupt, and only the strongest of powers can ensure any efficiency in the operation and safety of society. On this reading crime and punishment are strongly correlated with the passions, and religious beliefs (creedal matters) are even more strongly correlated with managing those passions in a societal context. It has often been overlooked in the history of ideas that Catholicism, again assuming a pretty high level of its operation, represents something quite different from this view. Namely the quite radical idea that human beings can correct something (certtainly not all) about society by way of appropriate action, which of course by the Church is strongly linked to fidelity in its core beliefs. Yet considered apart from that fidelity, for an analysis of the ideas simply , still Catholic beliefs are less in the fear-centered direction direction than a conception of society as Leviathan a la Hobbes. By the way, this connects with one of the most untold stories of European history. Though Jews caused paranoia and fear for centuries all over Europe, and especially in very Catholic places like Spain, this was strikingly different in the Papal States. One must ask why?? I think the only possible answer strongly correlates with the distilled essence of the Catholic ethos that would have been present there. At a high level, the Catholic ethos is less fearful, thus also less fearful of the Other, the Jew. But this very case also shows, of course thinking of Spain, that the high level is not always present.

Posted by: Peter Paul Fuchs | Nov 26, 2010 7:38:53 PM