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.

Thursday, February 28, 2013

An interesting conversation about (the new) natural law

In the latest issue of First Things, David Bentley Hart (an amazing writer, in my view) has a piece called "is, ought, and nature's laws" in which he rejects "the attempt in recent years by certain self-described Thomists, particularly in America, to import this [natural-law] tradition into public policy debates, but in a way amenable to modern political culture. What I have in mind is a style of thought whose proponents (names are not important) believe that compelling moral truths can be deduced from a scrupulous contemplation of the principles of cosmic and human nature, quite apart from special revelation, and within the context of the modern conceptual world. This, it seems to me, is a hopeless cause."

Hart concludes:

To put the matter very simply, belief in natural law is inseparable from the idea of nature as a realm shaped by final causes, oriented in their totality toward a single transcendent moral Good: one whose dictates cannot simply be deduced from our experience of the natural order, but must be received as an apocalyptic interruption of our ordinary explanations that nevertheless, miraculously, makes the natural order intelligible to us as a reality that opens up to what is more than natural. 

There is no logically coherent way to translate that form of cosmic moral vision into the language of modern “practical reason” or of public policy debate in a secular society. Our concept of nature, in any age, is entirely dependent upon supernatural (or at least metaphysical) convictions. 

R.J. Snell responds, here and here, contending -- among other things -- that Hart is attacking a "straw man", because John Finnis's account of natural law is not as Hart describes it.  I'm painfully aware that I'm not close to being competent to referee this debate.  If I have it right, Snell's claim is that the Finnis (et al.) account of natural law does not involve deriving, or "reading off", moral truths from "nature"; it has to do, instead, with (underived) principles of practical reason.  With respect to these princples, Snell writes, "[n]either are they innate, although they are self-evident; grasping them entails 'no process of inference' but rather an 'act of non-inferential understanding.'”  He adds:

Rather than Hart’s “clear commands” for “any rightly attentive intellect,” contemporary natural law requires sophisticated casuistry, which perhaps explains why moral theologians most persuaded by physicalism sometimes accuse contemporary natural law theorists of permissiveness, since natural law theory readily admits the complexities and vagaries of the agent’s intentions. 

Read it all.  (And, maybe also Russell Hittinger.)


February 28, 2013 in Garnett, Rick | Permalink | Comments (4)

"Disaster Coming": An interview with Jonathan Last about demography, etc.

An interesting (and sobering) interview with Jonathan Last, over at National Review, about demography and his book, What To Expect When No One is Expecting, here.  A bit:

[C]hildren are — as high-minded economist types will note — both public and private goods. And society can’t function very well, or for very long, without a certain number of them being born. So whatever people decide to do at the individual level, there are macro effects to consider. I would just note that it’s a little weird that certain types of people are happy to consider the macro effects of individual behavior when it comes to smoking, or drinking soda — but say that we’re not allowed to notice these things when it comes to kids. I mean, it’s only the entire future of Western civilization we’re talking about.

February 28, 2013 in Garnett, Rick | Permalink | Comments (0)

"Could the Next Pope Learn from Benedict?"

[That's the subtitle.  The title:  "Shock Therapy".  Written by Peter Steinfels, former editor of Commonweal and former religion editor of the New York Times.]

By resigning, Pope Benedict served the church well. He has spared it another prolonged period of mounting disarray. He has "humanized" the papacy, as Joseph Komonchak and others have pointed out. He has jolted the church into allowing that something generally considered unthinkable for centuries is really not beyond doing after all. And he has set the stage for his successor to do likewise.

That is important. The Catholic Church needs shock therapy. True, among the world's 1.2 billion Catholics, millions of saints are leading lives of prayer and charity so ardent, brave, sacrificial, creative, and enduring that they bring tears to normal eyes. They are the best of us—and then there are the rest of us. Except in parts of Africa, the much-heralded growth of Catholicism is simply in line with the growth in population—or not even that. Latin American Catholics are increasingly turning to Pentecostalism or drifting away from religious practice and affiliation altogether, although not yet to the extent occurring in Europe and North America. It would be comforting to think that what might be lost in numbers is being gained in depth, but as Catholic identity, floundering in a sea of alternative visions, weakens from generation to generation, that seems unlikely.

The church needs shock treatment, and until the mini-shock of his resignation, Benedict, to the relief of many, did not seem like the man to administer it. Ratzinger, yes; Benedict, no. What shocks have come during his papacy were usually by blunder rather than intention. Evaluations of his tenure have balanced the pros and cons of his deeds according to the lights of the balancer. What is still untallied, except for his failure to unmistakably demand accountability in regard to clerical sexual abuse, is what has remained undone. Underlying conditions like the limitations, in numbers, quality, and age, of the clergy or the massively eroding credibility of church teachings on sexuality are no better than when he took office in 2005. Much of the hierarchy deludes itself with slogans in search of substance like “The New Evangelization,” or rationalizes inaction with the familiar alibi, “The church works in centuries.” In fact, history teaches that the church often suffers for centuries from its failure to act during critical passages.

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February 28, 2013 in Perry, Michael | Permalink | Comments (3)

Wednesday, February 27, 2013

The Family of Nations


I follow several of my friends here at the Mirror of Justice today by commenting on Pope Benedict’s final General Audience exhortation. He spoke of the nature of the Church, and he spoke of the family of nations. I think the two topics he addressed are connected.

During the pontificate of the “war pope” Benedict XV, Papa della Chiesa would often speak of the family of nations. In one of his allocutions concerning the need for a “league of nations” which he supported, he mentioned that the better term would be the family of nations. I think Benedict XV had in mind a place where the peoples of the worlds could come together as a sort of family and address their concerns about peace, natural justice, and right order in the world. States are instruments of but not the peoples themselves; they are the ones who are the true members of the family of nations. I was reminded of this all the more when I recalled that my college advisor from 1968 to 1970, Dr. Jeane Kirkpatrick, told me and my classmates about a sign she often saw in her beloved France which said something like, “republics come and republics go, but Duron Paints stay on forever!” In essence, the point was that governments and political parties are transient things, but there are some things which endure. Surely peoples, the nations, the gens fall into the latter category. It is the peoples not the states who are the true elements of the family of nations. In this context, one is reminded of another expression that used to be recited at papal installations: “Sic transit gloria mundi!”

I think it no coincidence that Benedict XVI spoke of the family of nations today. Their states may come and go, but the peoples who constitute the family of nations will go on in spite of what happens to the temporal authorities of the world. The people go on while governments come and go. This is where his many references to the Church and her nature come into play and it intersects with but is not precisely the same as the family of nations. In one of his remarks, he stated that “the Church is—not an organization, not an association for religious or humanitarian purposes, but a living body, a community of brothers and sisters in the Body of Jesus Christ, who unites us all. To experience the Church in this way and almost be able to touch with one’s hands the power of His truth and His love, is a source of joy, in a time in which many speak of its decline.”

Here the Holy Father was referring to the union of Christ and His people—the vine and His branches. We branches grafted onto the vine of Christ receive our life, our wisdom, and our energy from Him. The will we exercise should also be formed not by our selfish desires but by our discipleship as followers of Christ. The Holy Father suggested this when he said today, “Loving the Church also means having the courage to make difficult, trying choices, having ever before oneself the good of the Church and not one’s own.” It is this manner of understanding the Church that can positively affect the family of nations. Political parties and government institutions come and go, but the Church and the family of nations continue notwithstanding the obstacles that both meet.

In his final general exhortation to the Church and to the family of nations, Benedict XVI has helped us chart a course for tomorrow and for thereafter. While he will no longer be with us as Peter, he will remain with us in prayer. It was suggested by Thomas More that prayer is a good way to govern, and I will add to govern the Church and the family of nations.


RJA sj


February 27, 2013 in Araujo, Robert | Permalink | Comments (1)

Pope Benedict XVI's last General Audience

From this morning:

Dear Brothers and Sisters, I offer a warm and affectionate greeting to the English-speaking pilgrims and visitors who have joined me for this, my last General Audience. Like Saint Paul, whose words we heard earlier, my heart is filled with thanksgiving to God who ever watches over his Church and her growth in faith and love, and I embrace all of you with joy and gratitude.

During this Year of Faith, we have been called to renew our joyful trust in the Lord’s presence in our lives and in the life of the Church. I am personally grateful for his unfailing love and guidance in the eight years since I accepted his call to serve as the Successor of Peter. I am also deeply grateful for the understanding, support and prayers of so many of you, not only here in Rome, but also throughout the world.

The decision I have made, after much prayer, is the fruit of a serene trust in God’s will and a deep love of Christ’s Church. I will continue to accompany the Church with my prayers, and I ask each of you to pray for me and for the new Pope. In union with Mary and all the saints, let us entrust ourselves in faith and hope to God, who continues to watch over our lives and to guide the journey of the Church and our world along the paths of history.

I commend all of you, with great affection, to his loving care, asking him to strengthen you in the hope which opens our hearts to the fullness of life that he alone can give. To you and your families, I impart my blessing. Thank you!

February 27, 2013 in Scaperlanda, Mike | Permalink | Comments (0)

Collateral Effects of Papal Transition

With all the discussion regarding Pope Benedict's resignation and who his successor should be, some interesting pieces can be missed. I would like to draw attention to just two of them that address some of the collateral issues related to the change in Church leadership and governance. First is this Washington Post article discussing, among a wide array of somewhat tangentially related issues, how the Vatican has seemed to change its policy regarding the role of Cardinals who have been accused of wrongdoing. The second, an analysis piece in the National Catholic Reporter, discusses the effect of a change in Church leadership on the ongoing dispute between the Vatican and the Leadership Conference of Women Religious. Whether one agrees with the analysis or not, both are worth a read to help underscore the dimension of potential change.

February 27, 2013 in Leary, Mary G. | Permalink | Comments (1)

Against Calling on Government to Shape Souls

My colleague, Professor Charles J. Reid, Jr., a master wordsmith and prominent scholar of medieval history, has been reborn of late as a vigorous advocate for what he calls “a robust American government.”  In a blog post previously appearing on Huffington Post and now re-published in the winter edition of the St. Thomas Lawyer, Professor Reid calls for a much enlarged federal government with an even larger agenda.

More pointedly, Professor Reid accuses those of us who resist government encroachment of singing a “sickening refrain.”  He labels the Reaganesqe question about the wisdom of reliance on the State as the answer to societal ills as producing “toxic words” that “inject[] poisons into the American body politic.”

Locke-treatisesBecause the American and Lockean tradition of limited government does not deserve Professor Reid’s pejorative as “petty, crankish, small-minded,” I feel compelled to offer a rejoinder.

And because Professor Reid advocates an über-activist vision of national government that he would task for “the betterment of men’s hearts,” I issue a warning about the perils of over-zealous faith in the State.

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February 27, 2013 in Sisk, Greg | Permalink | Comments (3)

More on Fr. Benedict Ashley, O.P.

I am posting, with permission, an introduction -- written by Mark Latkovic (who was close to Fr. Ashley and wrote his dissertation on him) -- to Fr. Ashley's biography:

A very long life – such as the remarkable one that our author has lived – does not guarantee that the individual has used those many years well.  Benedict M. Ashley, O.P. has used his many years – almost a century now – to advance the Kingdom of God as a priest philosopher-theologian.  But before turning his life to Jesus Christ (he was be baptized in 1938) and entering the Dominican Order in the 1940s (he was ordained in 1948), Ashley was a follower of Marx, not the Master.  His autobiography, Barefoot Journeying, could very well be titled From Socialism to the Savior.  In these pages you will find Ashley’s “conversion story” told in both prose and poetry.  It is good that these many poetic writings are included, because they give us great insight into the mind and heart of a man who started off with the hope of being a novelist and poet while at the University of Chicago in the early 1930s. . . .

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February 27, 2013 in Garnett, Rick | Permalink | Comments (0)

Tuesday, February 26, 2013

The Tale of Psychic Sophie: Denouement

Back in December, I wrote a couple of posts about "Psychic Sophie," --  Part I and Part II -- the "spiritual counselor" who was classified as a "fortune-teller" by Chesterfield County and in consequence was deemed to be violating various County zoning ordinances and a licensing requirement.  Psychic Sophie's free speech, free exercise, and RLUIPA complaint was dismissed by the US District Court for the Eastern District of Virginia, and she appealed to the Fourth Circuit.

Things did not sound very good for Psychic Sophie at oral argument, and, as Kevin Walsh reports, the Fourth Circuit affirmed the grant of summary judgment for the County today.  From Kevin's post about the opinion:

With respect to the definition of religion, Judge Duncan distinguishes between “personal and philosophical choices consistent with a way of life,” on one hand, and “deep religious convictions shared by an organized group deserving of constitutional solicitude,” on the other hand. The court determined that Moore-King’s practices fit in the philosophical-not-religious category: “That a wide variety of sources–the New Age movement, the teachings of Jesus, natural healing, the study of metaphysics, etc.–inform and shape Moore-King’s ‘inner flow’ does not transform her personal philosophical beliefs into a religion any more than did Thoreau’s commitment to Transcendentalism and idealist philosophy render his views religious.”

From a practice perspective, it may be worth noting that Chesterfield County prevailed even though the court knocked down its lead defense to the free-speech claim. That defense rested on two premises, both of which the panel rejected: “(1) fortune telling is inherently deceptive; and (2) inherently deceptive speech warrants no protection under the First Amendment.”

The problem of the legal definition of religion only occasionally vexes courts, and the Supreme Court has never said anything definitive about it for constitutional purposes (Yoder may offer "guidance," as the court says, but its guidance is not definitive -- and I don't mean that in the least as a criticism of Yoder).  Judge Arlin Adams's Third Circuit concurring opinion in Malnak v. Yogi many years ago is certainly worth reading as a classic period opinion of the late 1970s on the subject, but it seems to me that the Fourth Circuit's approach is quite different (different times).

One final note.  Writing for the panel here, Judge Duncan said this: "Yoder teaches that [Psychic Sophie] must offer some organizing principle or authority other than herself that prescribes her religious convinctions, as to allow otherwise would threaten 'the very concept of ordered liberty.'  Yet [she] forswears such a view when she declares that instead of following any particular religion or organized recognized faith, she 'pretty much goes with [her] inner flow, and that seems to work best.'"  But, taking care not to "belittle" Psychic Sophie's beliefs, the court seems to hold here that a self-referential religion of one will not receive protection under the Constitution or RLUIPA.  

Perhaps the "Eisenhower principle" has its limits.

February 26, 2013 in DeGirolami, Marc | Permalink

Some funny Lutherans' contribution to the "Who should be pope?" conversation

Michael P. has called our attention to some suggestions from E.J. Dionne and Elmore Leonard regarding the question who should be the next pope.  (Why Elmore Leonard missed the obvious choice -- Raylan Givens -- is a mystery to me.)  A funny video making the rounds, from "Lutheran Satire", might enrich the conversation further.

February 26, 2013 in Garnett, Rick | Permalink | Comments (0)