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, December 21, 2012

The NRA: "Be afraid. Be very afraid."

Consider my colleague Greg Sisk's call for us to embrace -- with God's help -- the best in ourselves and our society:

"[A]ttention to moral character and cultural healing is imperative if we take seriously the calling to create the best environment for human thriving.  And, at present, we have ample reason to doubt that American culture is bringing out the best in our people."

Then consider the NRA's call for an armed guard in every school, along with the stark rationale offered by Wayne LaPierre:

The truth is that our society is populated by an unknown number of genuine monsters — people so deranged, so evil, so possessed by voices and driven by demons that no sane person can possibly ever comprehend them. They walk among us every day. And does anybody really believe that the next Adam Lanza isn’t planning his attack on a school he’s already identified at this very moment? How many more copycats are waiting in the wings for their moment of fame . . . while provoking others to try to make their mark? A dozen more killers? A hundred? More? How can we possibly even guess how many, given our nation’s refusal to create an active national database of the mentally ill? And the fact is, that wouldn’t even begin to address the much larger and more lethal criminal class: Killers, robbers, rapists and drug gang members who have spread like cancer in every community in this country. . . .

I call on Congress today to act immediately, to appropriate whatever is necessary to put armed police officers in every school — and to do it now, to make sure that blanket of safety is in place when our children return to school in January.

Is LaPierre asking us to embrace the best in ourselves and our society?  These remarks reflect the power of fear, but they do not reflect a Catholic understanding of engagement with the world.  I have a hard time imagining John Paul II teaching us that the answer to gun violence is more guns because "our society is populated by an unknown number of genuine monsters."  I don't resent gun ownership, but I struggle to reconcile the rhetoric in which gun rights are sometimes embedded -- fear of the other, withdrawing behind the power of the gun, simplistic responses to evil -- with the call of solidarity and the exhortation to "be not afraid."

December 21, 2012 in Vischer, Rob | Permalink | Comments (17) | TrackBack (0)

2013 Conference on Christian Legal Thought

In conjunction with the annual meeting of the AALS in January, the 2013 Conference on Christian Legal Thought sponsored by the Lumen Christi Institute at the University of Chicago and the Law Professors' Christian Fellowship will take up the nature of law, based partly on a pending statement on the nature of law from a group of Evangelical and Catholic scholars. The schedule of speakers is below, and you can register here--$30 gets you an afternoon of enlightening conversation and a lavish cocktail reception. I hope to see many MOJ readers there.

Saturday, January 5, 2013, 1 PM to 6:15 PM
Wyndham Riverfront New Orleans
701 Convention Center Boulevard
New Orleans, LA 70130

Conference Topic: The Statement on the Nature of Law from Evangelicals and Catholics

1:15 PM – 2:45 PM: Session One: Christian Perspectives on the Nature of Law
Chair: Michael Moreland (Villanova University School of Law)

William Brewbaker III (University of Alabama School of Law)

Nora O’Callaghan (Loyola University Chicago School of Law)

David Skeel (University of Pennsylvania Law School)

2:45 PM – 3:00 PM: Coffee Break

3:00 PM – 4:30 PM: Session Two: Non-Christian Perspectives on the Nature of Law
Chair: Zachary R. Calo (Valparaiso University Law School)

Bruce Ledewitz (Duquesne University School of Law)

Dan Markel (Florida State University College of Law)

Seval Yildirim (Whittier Law School)

4:45 PM – 5:15 PM: Vespers

5:15 PM: Reception

December 21, 2012 in Moreland, Michael | Permalink | TrackBack (0)

Pope Benedict XVI on being created male and female

From the Holy Father's recent Christmas Address to the Roman Curia:


"The Chief Rabbi of France, Gilles Bernheim, has shown in a very detailed and profoundly moving study that the attack we are currently experiencing on the true structure of the family, made up of father, mother, and child, goes much deeper. While up to now we regarded a false understanding of the nature of human freedom as one cause of the crisis of the family, it is now becoming clear that the very notion of being – of what being human really means – is being called into question. He quotes the famous saying of Simone de Beauvoir: “one is not born a woman, one becomes so” (on ne naît pas femme, on le devient). These words lay the foundation for what is put forward today under the term “gender” as a new philosophy of sexuality. According to this philosophy, sex is no longer a given element of nature, that man has to accept and personally make sense of: it is a social role that we choose for ourselves, while in the past it was chosen for us by society. The profound falsehood of this theory and of the anthropological revolution contained within it is obvious. People dispute the idea that they have a nature, given by their bodily identity, that serves as a defining element of the human being. They deny their nature and decide that it is not something previously given to them, but that they make it for themselves. According to the biblical creation account, being created by God as male and female pertains to the essence of the human creature. This duality is an essential aspect of what being human is all about, as ordained by God. This very duality as something previously given is what is now disputed. The words of the creation account: “male and female he created them” (Gen 1:27) no longer apply. No, what applies now is this: it was not God who created them male and female – hitherto society did this, now we decide for ourselves. Man and woman as created realities, as the nature of the human being, no longer exist. Man calls his nature into question. From now on he is merely spirit and will. The manipulation of nature, which we deplore today where our environment is concerned, now becomes man’s fundamental choice where he himself is concerned. From now on there is only the abstract human being, who chooses for himself what his nature is to be. Man and woman in their created state as complementary versions of what it means to be human are disputed. But if there is no pre-ordained duality of man and woman in creation, then neither is the family any longer a reality established by creation. Likewise, the child has lost the place he had occupied hitherto and the dignity pertaining to him. Bernheim shows that now, perforce, from being a subject of rights, the child has become an object to which people have a right and which they have a right to obtain. When the freedom to be creative becomes the freedom to create oneself, then necessarily the Maker himself is denied and ultimately man too is stripped of his dignity as a creature of God, as the image of God at the core of his being. The defence of the family is about man himself. And it becomes clear that when God is denied, human dignity also disappears. Whoever defends God is defending man."

December 21, 2012 in Brennan, Patrick | Permalink | TrackBack (0)

On Robert Bork on Law, Culture, and Public Morality

At a Federalist Society forum in 2008, I was invited to offer some thoughts on Robert Bork's book Slouching Toward Gomorrah, as part of a panel discussion devoted to the arguments advanced by Judge Bork in the book.  Here, in tribute to him, I'm reprinting my reflections.  "May eternal rest be granted unto him, O Lord, and may perpetual light shine upon him."

When Slouching Toward Gomorrah appeared, it bore on its dust jacket a few words of mine praising the book and its distinguished author: “The ideological triumph of liberalism among American elites, far from bringing the individual and social enlightenment it promised, has produced unprecedented decay. The principal victims of this decay are the poorest and most vulnerable among us, those most in need of a healthy culture. Bork courageously and boldly states these truths. A judge as wise as Solomon has become a prophet as powerful as Isaiah.”

That is what I thought then, and I believe it even more firmly now. It was not that I agreed with everything that Judge Bork said in the book. I strongly dissented, for example, from Judge Bork’s attitude of suspicion toward the natural rights teaching and equality doctrine of the Declaration of Independence, though it must be said that even in the chapters of Slouching in which he articulates the grounds of his skepticism about the Declaration, I found characteristically Borkian flashes of insight and many important truths.

What seemed to me most prophetic about the book was its profound appreciation of the character- or soul-shaping role of culture and its deadly accurate description of, and warning about, the ways in which the triumph of liberal ideology among American elites was corroding public morality and damaging the interests of all of us, but especially the poorest and most vulnerable among us. This is our common interest in maintaining a social environment—a moral ecology, as I have elsewhere described it—that is more or less conducive to virtue and at least minimally inhospitable to what the great British jurist Patrick Devlin referred to as “the grosser forms of vice.”

I have in my own writings, both before Slouching and after, offered philosophical criticisms of what I regard as the illusion of moral neutrality that is the centerpiece of much liberal and libertarian legal and political theory, political theory of the sort that has been championed by the late John Rawls, for example, by Ronald Dworkin, and the late Robert Nozick. I’ve tried to illustrate the many ways in which beliefs, attitudes, and choices are shaped in any society—not just in ours—by the framework of understandings and expectations that, to a considerable extent, constitute for better or worse a society’s public morality and would do so even in the strict libertarian’s utopia.

I’ve sought to show that the acts of private parties, even the apparently private acts of private parties, can and often do have public consequences; indeed, sometimes very extensive and profound public consequences. It will come as no surprise, then, that I found Judge Bork’s refocusing of our attention on public morality to be valuable and even prophetic.

Of course, the next question, for those of us who see things as Judge Bork and I see them is, the hard one: “What do we do about it?”

Truth be told, in the period from roughly the middle 1960s to the publication of Slouching Toward Gomorrah in the mid-1990s there had been very little serious scholarly attention given to public morality and its decline. Concern about public morality seemed to disappear, at least from the scholarly literature, except as an item of ridicule. Even as public morality was quickly eroding, virtually no attention was paid to the question of what might be done to rebuild a decent moral ecology.

So the question is, what are the legitimate and illegitimate means of upholding or restoring public morality? What is likely to work, and what is likely to prove futile or even to do more harm than good? We can all think of ways in which the effort to rebuild public morality could go awry. And, of course, there are some people who believe that any effort to rebuild public morality would do more harm than good, or at least any use of the law toward that end.

But that brings us, of course, to the next question, what is the role and what are the limits of law in the establishment and maintenance of public morality or a moral ecology that assists us in our own lives and in bringing up our children to be decent and honorable people? Now here Judge Bork and I break from our strict libertarian friends. We do think that law and public policy can play a constructive, albeit limited, role in protecting not only public health and safety but public morals as well.

Judge Bork, in Slouching, was even willing to cause scandal and outrage by putting in a good word for censorship. Now I myself would never support the censoring of ideas and arguments, however evil and revolting the causes in which they are advanced. I would defend, for example, Larry Flynt’s right to advocate a free market in hard-core pornography, and even his right to encourage pornography as a tool of personal and social liberation—as vile an idea as I think that is. At the same time, I would have no objection in principle and can think easily of circumstances under which I would be willing to support forbidding Flynt, by law, from producing and distributing his smut. If there is a case against shutting down operations like Hustler, it is merely a prudential case, not a case based on natural rights, liberty, equality, or justice, or so it seems to me.

In my own criticisms of John Stuart Mill’s “harm principle,” for example, or of modern and contemporary defenses of that principle and its application to some of the issues that people who think about public morality are concerned about, I’ve made the argument that there is no ground of moral principle on which Mill’s position can be defended, although in the case of any proposal to use the mechanism of the law, especially in its coercive aspects, to forbid wrongdoing, there are always a range of prudential questions that have to be asked and answered. And sometimes the weight of argument as a matter of prudence will militate against using the force of law, other times, perhaps, for it.

Take, for example, the drug prohibition debate. Now it seems to me that there is no compelling moral argument for a right to use hallucinogens and other mind-impairing drugs on a recreational basis. However, it seems to me that critics of drug prohibition have made a serious case for their view on prudential, as opposed to moral, grounds. I don’t myself find it in the end to be a persuasive case, but I can understand why many people do. They have been persuaded that the social costs imposed by drug prohibition are so high, that we would be better off decriminalizing at least some commonly used drugs.

In any event, I think that’s where the argument has to be made. It is not a question of whether people have a right to do immoral things like use cocaine or LSD, but rather a question of whether the effort to use the coercive force of the law will be futile or even counterproductive—whether it will do more harm than good by, for example, encouraging police corruption or the development of black markets, or leading to the prohibition of legitimate things that might fall under too sweeping a prohibition.

In the area of censorship, or example, there are arguments having to do with whether efforts to ban pornographic material that really does deserve to be banned will lead to the banning of material—literature, art, movies—that actually does have important literary and artistic merit. Now that’s not necessarily to say that the prudential argument always comes down against prohibition. It is only to say that someone considering what his position ought to be on the question, whether as a policymaker or a citizen of a democratic society, needs to consider carefully the weight of prudential arguments on the competing sides. It is not a knockdown, for example, even to prove that if we prohibit Hustler, there will, in some circumstances in some parts of the country, be prohibitions of literature that actually should not be prohibited because it is not truly obscene. The question of what the default position should be is itself a matter for argument and prudential judgment. It requires us to consider what damage is being done, especially to our young people, in a culture in which pornography flows as freely and flourishes as it does in our society today.

Let me conclude these remarks with a brief comment about the role of law and government in upholding public morality in circumstances where it does have a legitimate role, where it passes not only the test that I think it will always pass so long as what it’s prohibiting is actually something wicked, but even where it passes all the tests of prudence. And that comment is this, that the role of law and government is always secondary and subsidiary. The primary role, it seems to me, in this area is played by the institutions of civil society—families, churches and other religious bodies, organizations such as the Boy Scouts—that are concerned fundamentally with character formation and which by working closely with individuals can actually do a good job of inculcating a sound understanding of morality and promoting virtue. Despite the fact, that is to say, that public morality is indeed a public good, its maintenance depends far more on contributions of private institutions, beginning with the family, than on the institutions of law and government, and we go wrong on the non-libertarian side if we invert them and ascribe to government and law the primary role. Where families, churches, and other institutions of civil society fail, or where they’re unable, perhaps because of legal impediments, to play their parts properly, laws will hardly suffice to preserve public morals. Ordinarily, at least, law’s role is supportive. That’s what I mean by secondary, subsidiary. Its role is to support families, churches, and the like in the task of forming honorable and decent people and good citizens.

And of course, finally, the point that cannot be stressed often enough: Law goes wrong when it displaces those institutions of civil society, when it undermines or pushes aside the church, the family, other character-shaping institutions, and substitutes itself for them, forcing them in a sense to abdicate their own responsibilities.

At the same time, while we must be aware of a usurpation of familial or religious authority by government, it’s also important to note that the role of law upholding public morality, even though it is subsidiary, is itself undermined by families, by religious communities, churches and other religious institutions, when they abdicate their primary responsibility, or even worse, when they promote false and morally destructive practices.

December 21, 2012 | Permalink | TrackBack (0)

Thursday, December 20, 2012

Changing Not Only Laws, But Hearts

Trying to climb this mountain of wickedness is like trying to climb a glass wall with your bare hands. What happened there is pure evil, and evil, unlike common badness, gives an ordinary mind no foothold.

Megan McArdle, Daily Beast (Dec. 17, 2012).

Now that a decent interval has been observed since the atrocity in Connecticut, the members of our Mirror of Justice family — as people of faith and well-educated legal scholars — are asking “what do we do now?”

Many have proposed new gun-control laws or increased funding for mental health care as the answer.  I am willing to support every reasonable proposal in that regard — and likely would refrain from objecting to quite a few less-than-reasonable proposals.  I do fear, however, that too many are deluding themselves if they really believe that a truly effective and comprehensive political or legal solution is feasible.  What happened in Connecticut — and elsewhere — may or may not represent a failure of law and politics.  But such atrocities surely do reflect a failure of character and culture.

Encouraging moral deliberation in our society and being committed to changing the American culture of death is much more difficult work than passing a new set of laws or initiating or expanding government spending programs.  Our mission cannot be quantified by a check-list; it is more painstaking and demands more of us personally than a political campaign or legislative agenda; it insists that we be patient, perhaps never knowing in this life how the seeds we plant will grow.

Fortunately, that harder — and more important — work connects directly to our particular vocation as people of faith teaching future problem-solvers, policy advocates, legislators and judges, and community leaders and, for most of us, doing so in an environment where faith and moral reasoning are valued and lived out each day.

With respect to the immediate political or legal proposals, Professor James Alan Fox writes in the Chronicle of Higher Education this week:

Sensible gun laws, affordable mental-health care, and reasonable security measures are all worthwhile, and would enhance the well being of millions of Americans. We shouldn’t, however, expect such efforts to take a big bite out of mass murder. Of course, a nibble or two would be reason enough.

Continue reading

December 20, 2012 in Sisk, Greg | Permalink | Comments (0) | TrackBack (0)

The case for guns

I appreciate -- and have learned from -- the comments made in response to yesterday's post about Catholics and gun control.  One category of response is relatively straightforward: this sort of law can't be crafted in a way that will be effective.  I get that, and I'll defer to others with more expertise than I have to sort out that debate.  Two other categories of response intrigue me. 

The first amounts to variations of "owning and shooting weapons like these is a hobby that is highly valued by many Americans."  True enough.  My friends and family members who own guns enjoy them, and I have no doubt that they will continue to use them safely.  But what if a hobby also presents a readily foreseeable likelihood that the misuse of the item on which enjoyment of the hobby is premised will cause widespread death and bodily harm?  Chicago has long banned the sale of spray paint; many cities, including my own, ban its sale to minors.  This has made it more difficult for my 12 year-old daughter to enjoy her hobbies, none of which involve (as far as I can tell) "tagging" the property of others.  I think the spray paint ban is entirely reasonable even though it infringes on others' ability to enjoy their hobbies.  Graffiti presents nowhere near the public problem that gun violence presents.  I'm not saying that the Bushmaster enthusiast's interests carry no weight in the analysis; I'm just skeptical that those interests should carry as much weight as some seem to assert.  (Again, I'm assuming for the sake of this argument that such laws could, in fact, be efficacious in preventing at least some gun violence.)

The second category of response simultaneously looks back to our proud history of rugged American individualism and forward to either a post-apocalyptic or totalitarian future.  It boils down, in my estimation to, "Sometimes you just may need to kill a lot of people in a relatively short time frame."  (How often does a large group of people invade someone's home?)  I am a big fan of Niebuhrian realism, but this line of argument seems to veer into outright cynicism not just about the future of civilization, but also about the Christian's place in it.  Christians should work toward a tolerable justice, of course, but there's a strain of "self-survival at all costs" to this line of argument as well, and I'm not yet sure what to make of that.

December 20, 2012 in Vischer, Rob | Permalink | Comments (22) | TrackBack (0)

NDPR on Interpreting Suárez

A major task for Catholic legal theory, I think, is to recover and appropriate figures from the tradition who are today neglected, misinterpreted, and forgotten. So I was pleased to come across this review in the Notre Dame Philosophical Reviews of a new and promising collection of essays from Cambridge University Press on the great Spanish Jesuit scholastic Francisco Suárez (1548-1617)--even if Suárez took some wrong turns, the wrong turns are themselves important for understanding the Catholic legal tradition. Here's a bit from the review:

[Thomas] Pink concludes his chapter on "Action and freedom in Suárez's Ethics" with a section on "The Hobbesian Critique" which serves to bring into relief the fundamental differences that account for the shift from the Scholastic view that freedom is constituted by law to the modern view that it is limited by law. Pink, in discussing the positions Suárez takes within the broader Scholastic, practical-reason-based approach, also draws helpful contrasts between Suárez's distinctive views and arguments and those of influential contemporaries such as Vasquez and Punch. Finally, [Terence] Irwin's chapter on "Obligation, rightness, and natural law: Suárez and some critics" gives an extremely sensitive, in-depth examination of key texts, showing contra Finnis and Pink that Suárez has a coherent theory of obligation, that his sense of 'obligatio' as distinct from duty fits at least some contemporaneous uses, and that his view is not inconsistent with Aquinas'. Both chapters will be of great interest to historians of philosophy, ethicists and political philosophers alike. Indeed, all chapters in this volume are well-executed and will appeal to more than one type of reader.

December 20, 2012 in Moreland, Michael | Permalink | TrackBack (0)

Wednesday, December 19, 2012

No, it was not the Vatican.

I've blogged here before about Christopher Ferrara's epochal achievement Liberty, the God that Failed. Below, from my Foreword to the book, is food for thought about where the escalating licence for violence comes from -- and where it does not come from:

"The truth, though, is that the period in which the Catholic religion has been severed from the state, either completely or in large part, has been the bloodiest in human history. Some 27,000 died effecting liberty from the English Crown, and, as Ferrara demonstrates, we must also face 2 million dead in the French revolution (“inspired by the American example”), the genocide of 300,000 Catholics in the Vendee by the Jacobin regime, 3 million dead following the fall of the Jacobin and Thermidorian regimes, 600,000 dead in the Civil War in America, 16 million dead in World War I (fought to make Europe “safe for democracy”), 7 million dead in the Bolshevik democides, 70 million dead in World War II, 20 million dead in genocides, including 6 million Jews, and so it goes on and on. Just who imposed all of this suffering? No, it was not the Vatican."

December 19, 2012 in Brennan, Patrick | Permalink | TrackBack (0)

Firearms and the Peace of Christ

In reviewing the posts and comments on MOJ and elsewhere on the question of what a Catholic position on regulation of firearms in the contemporary situation would look like, one thing -- the one thing necessary, in my view -- is consistently missing.  What hardly gets a mention is that Catholics are obligated, so the Church teaches, to seek to realize the peace of Christ in this fallen world.  And Catholics also believe, or they should believe, that the peace of Christ is possible only in the reign of Christ.  I'm not suggesting that it's especially helpful to approach this regulatory issue by asking "What would Jesus do?", but asking that question as a partial starting point wouldn't be an unhelpful corrective, either.  The end game here, so to speak, isn't, say, protecting the liberties enjoyed by Englishmen in 1688. The proximate end-game is a world blessed by social structures that reflect the Gospel, for that is the sort of culture that helps souls reach The One Who Matters. It is not in the least surprising that a nation that came into being thanks to muskets in revolution against a king who was no real tyrant cannot now think clearly about where guns belong.

As His birthday approaches, we might do well to recall that the Prince of Peace should be our guide and measure -- yes, even in public.

December 19, 2012 in Brennan, Patrick | Permalink | TrackBack (0)

Robert Bork, RIP

Robert Bork died this morning at the age of 85 (notice from the University of Chicago Law School here). I noted just a few weeks ago the 25th anniversary of the Senate's rejection of Bork's nomination to the Supreme Court and some commentary on the legacy of the battle over his nomination. By any measure, Judge Bork lived a full life--service in the Marine Corps at the end of World War II, an academic career at Yale, private practice at Kirkland & Ellis, and government service as Solicitor General and a federal court of appeals judge. Bork was also an adult convert to Catholicism (he discussed his conversion in an interview here). In recent years, I would occasionally encounter Judge Bork and his friend Walter Berns dining at the University Club in Washington--anyone who wondered whether Western civilization is in a state of utter collapse needed only spend a few minutes with them to have such doubts put to rest. But Judge Bork had a lighter side, evinced in this 1996 piece on the benefits of a well-made dry martini to help put things in perspective. May he rest in peace.

December 19, 2012 in Moreland, Michael | Permalink | TrackBack (0)