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.

Friday, May 25, 2012

How Law is Like a Settling House

Paul Horwitz has a very nice post in response to Rick's discussion of Employment Division v. Smith.  Paul recognizes that there are ways to reconcile Smith and Hosanna-Tabor, but he puts together a nifty argument that there are some deeper tensions between the two decisions as well as interesting questions about the relationship of institutional and individual free exercise.

For years before we moved to New York, my wife and I lived in a lovely old nineteenth century townhouse in Boston.  We lived there for about 5 years, and in those years, we noticed gradual shifts in the house's structure, particularly the higher up you went.  The joints between walls would move, overlap -- settle, settle, settle.  The floor would slowly develop a ridge or a depression.  The stairs would gradually slant left, except at the bottom where they straightened out.  An unexpected feature of this process was that settlements in one direction could also slow down, or even reverse course.  Guests who visited only once in a while would not notice these micro-shifts.  Appreciating these changes required the perspective of time.     

In a recent talk that Mike McConnell gave over at St. John's, he said something along these lines: when there is an instability in the law, the likeliest outcome is that over time -- sometimes over a very long time, depending on the quality of the tension -- the law will resolve the instability in one or another direction.  Those shifts are signs of the law settling, and the process of that settling continues without ending point, sometimes changing directions.  Maybe the instability that Paul recognizes will give rise to doctrine over the next 50-100 years that shifts, settles, reshifts, and resettles.  


DeGirolami, Marc | Permalink

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Thanks for the post, Marc. I agree of course on the general course of doctrine, and I think both your book and my next one address this to some extent. I should say, although I think it was obvious in my post, that my intervention was friendly and intended as much to make myself think about these issues as to urge Rick to do so. And I should add, from a broader perspective, that it seems to me that these discussions, along with interest in Hosanna-Tabor and in "freedom of the church," and recent work by Brian Leiter and Micah Schwartzman, itself represents a return to a recurring theme in law and religion scholarship: namely, how we deal with claims of "conscience," individual and/or institutional.

Posted by: Paul Horwitz | May 25, 2012 10:53:03 AM