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, November 29, 2013

The Social Kingship of Christ: A Question for Patrick

On the Feast of Christ the King, Patrick quoted Fr. Aidan Nichols, OP: "[P]ublicly recognising divine revelation is an entailment of the Kingship of Christ on which, despite its difficulties in a post-Enlightenment society, we must not renege." Patrick continues: "I agree with Fr. Nichols's judgment, of course, but I have to wonder whether any other contributor to this blog also agrees.  Enthusiasts of the First Amendment's agnosticism will have a hard time on this one." 

Right after the above quote, Fr. Aidan says:

Where the ethos of society is such that an elected legislature may be trusted to regard the Judaeo-Christian tradition as normative, the Church should be accorded her rightful place as “mother and mistress”. (The Edwardian priest-novelist Robert Hugh Benson’s The Dawn of All will give you the idea.) Where that is not possible there should at least be, in the former Christendom, a recognition of the historic role of the faith in forming the human patrimony.

Patrick, you have given this much more thought than I have, but it seems to me that these are the money lines for our situation.  I assume you agree with me that the ethos of our society is not such that the elected legislature can be trusted to regard the Judaeo-Christian tradition as normative. If so, then we can and should fight for a) our religious freedom along with the religious freedom of others (the agnostic position) and b) a recognition that Christendom played an historic role in forming the human patrimony.  The EU's refusal to give recognition to this patrimony in its proposed Constitution gave rise to Joseph Weiler coining the phrase Christophobia.

By my reading, in the American context this would not be considered First Amendment agnosticism but would be considered First Amendment realism.  Do you agree Patrick? Or, what am I missing?

November 29, 2013 in Scaperlanda, Mike | Permalink

The Culture Wars and Beyond: A response to Jody and Rick

In responding to our current cultural situation, two questions are paramount: 1) How am I called to respond? and 2) What is my judgment of the current situation?  These questions underlie the argument between Jody Bottum (here) and Rick Garnett (here).

In a recent Patheos essay, Jody writes: Forget the culture-wars crap. It was a fight worth having, back in the day when there was enough Christendom left to be worth defending. ... Start, instead, with re-enchnatment." I don't understand how we benefit from a house divided.  Why can't God be calling Jody to get out of the culture wars and focus on re-enchantment of the world through literary means while simultaneously calling Rick to fight for the legal rights for the unborn and religious freedom for all?  I don't see it as an either/or but a both/and according to our unique call.

What we hear and how we answer will be influenced, I suspect, by our assessment of the current state of our culture. The Christian who believes that we live in a truly post-Christian culture where Christian understandings of the human person, of reason, of truth, of goodness, and of beauty fail to get any traction might conclude that his or her time is better spent re-enchanting the world with beauty to provide an opening to the human heart that - when expanded - will be more open to the Good News and all that the Gospel entails. On the other hand, the Christian who believes that arguments on behalf of the unborn (or the poor, or the immigrant) and arguments for religious freedom can still gain traction in our culture, will, if called to do so, continue to make those arguments vigorously in the public square, our courthouses, and legislative assemblies.  

It seems to me that there is room for both/and!


November 29, 2013 in Scaperlanda, Mike | Permalink

A reader's response to Bottum's response to Garnett

A MOJ reader send in these comments:


In Mr. Bottum’s last response, I think he misses the mark on a couple of points, particularly here:



"The first is thinking that advances in law and policy have any permanence: The pendulum swings, political gains are reversed, the House changes hands, and then what do we do? As for the second mistake, we wander into magical thinking when we suppose that law and policy can drive culture more than a little, when the culture is resistant." 




I don't know anyone of serious intellectual heft--particularly not you, Professor Garnett--who thinks that advances in law and policy have any permanence, and certainly not in the arena of the culture war. But advances they are, and advances they will remain so long as they are vigorously defended.

Second, I don't agree that it is "magical thinking" to suppose that law and policy can drive culture "more than a little" where it is resistant. Historical examples abound in our country or elsewhere of a change in law driving a shift in culture. Depart from the culture wars for a minute, and look to two recent examples: seat belts and recycling. I'm too young to remember the seat belt push (a telling admission of my youth, since states only began enacting them in the 80s and 90s), but reading about it and discussing it with a college professor who used it as an example in teaching the Nichomachean Ethics leaves me with the impression that our attitude towards seat belt use today is directly a product of that legal campaign, and not an inherent widespread cultural desire to change.

The same point applies to recycling: we feel a discomfort if forced to discard glass and plastic in the regular trash. Why? There has been a cultural push, but I'd argue that it's equally the response to laws incentivizing recycling. People become attuned to the goal of the law and become uncomfortable when unable to comply--not because of a fear of punishment, but because the law creates the impression that a thing is good and desirable.

Even if one disagrees with my examples, the idea that the law has a strong role in shaping personal character and perceptions of morality is not a new invention. The idea has appeared in Western philosophical thought for millennia, starting at a minimum from Aristotle and renewed in turn by the Romans, St. Thomas, and some of America's own founders. I don't wish to make this a pure argument from authority, but I also don't believe they were engaging in magical thinking.

As to the rest of Mr. Bottum's argument, I don't find anything serious to disagree with, though I'm not entirely certain what his point is by the end. With regard to the serious pro-life intellectuals engaged in the legal battles of the culture war, I've never met one who seemed prone to believing that the process was the point. Perhaps Jody's experience is different. But at least among those who approach these issues with intellectual seriousness, I have seen legitimate outrage, not ginned-up outrage. It may be fatigue-inducing to write philosophical responses to the Women's Studies faculty again and again, seemingly falling on deaf ears except among an already-willing audience, but it remains important. 




Not least, it remains important because it shows--so long as such arguments are advanced charitably and in good faith--that there is an intellectual seriousness and philosophical depth to the Faith and its Teachings that allows it to stand its ground against all the errors of modernism. The early Apostles stood on both sides of this argument, illuminating Christ's love for the world through martyrdom and engaging the Jews and Romans as serious intellectuals. I don't think it's about preaching social ethics rather than living the love of Christ. Each is necessary to the existence of the other.

"And he entered the synagogue and for three months spoke boldly, arguing and pleading about the kingdom of God; but when some were stubborn and disbelieved, speaking evil of the Way before the congregation, he withdrew from them, taking the disciples with him, and argued daily in the hall of Tyran′nus."




November 29, 2013 in Garnett, Rick | Permalink

Thursday, November 28, 2013

President Adams's Proclamation for a Day to Fulfill "The Duties of Humiliation and Prayer"

Here is President John Adams’s 1798 Proclamation For a National Fast, which he issued on March 23 of that year and prescribed for the month of May. Two things are striking to me about the proclamation, though of course they are not unique to this particular proclamation.

First, days of public prayer are closely associated in the mind of Adams (and likely in the minds of his audience) with “humiliation”–that is, with the recognition of the limits of human power, with humility, and with the need and desire for guidance beyond oneself to set to the affairs of governance wisely. It has longed seemed to me that this was the principal function of legislative and other public prayer. Is is an irony of history that these kinds of prayers have now come to signify, in the minds of many of their opponents, something like the opposite of “humiliation.”

Second, note the emphasis on fasting. The idea behind such days was not to gorge on as much food as one could hold down, or to acknowledge one’s own comfortably sated life, or to revel in the capacity to spend lots of money on entirely useless nonsense on “Black Friday.” It was to thank God for one’s gifts by abstaining from consumption.

Now, if you will all excuse me, I’m off to stuff the turkey and, then (Grace having been said) myself. A very happy Thanksgiving to all of our writers and readers.

As the safety and prosperity of nations ultimately and essentially depend on the protection and blessing of Almighty God; and the national acknowledgment of this truth is not only an indispensable duty, which the people owe to him, but a duty whose natural influence is favorable to the promotion of that morality and piety, without which social happiness cannot exist, nor the blessings of a free government be enjoyed; and as this duty, at all times incumbent, is so especially in seasons of difficulty and of danger, when existing or threatening calamities, the just judgments of God against prevalent iniquity, are a loud call to repentance and reformation; and as the United States of America are at present placed in a hazardous and afflictive situation, by the unfriendly disposition, conduct, and demands of a foreign power, evinced by repeated refusals to receive our messengers of reconciliation and peace, by depredations on our commerce, and the infliction of injuries on very many of our fellow-citizens, while engaged in their lawful business on the seas;—under these considerations, it has appeared to me that the duty of imploring the mercy and benediction of Heaven on our country, demands at this time a special attention from its inhabitants.

I have therefore thought fit to recommend, and I do hereby recommend, that Wednesday, the 9th day of May next, be observed throughout the United States, as a day of solemn humiliation, fasting and prayer; that the citizens of these States, abstaining on that day from their customary worldly occupations, offer their devout addresses to the Father of mercies, agreeably to those forms or methods which they have severally adopted as the most suitable and becoming; that all religious congregations do, with the deepest humility, acknowledge before God the manifold sins and transgressions with which we are justly chargeable as individuals and as a nation; beseeching him at the same time, of his infinite grace, through the Redeemer of the world, freely to remit all our offences, and to incline us, by his Holy Spirit, to that sincere repentance and reformation which may afford us reason to hope for his inestimable favor and heavenly benediction; that it be made the subject of particular and earnest supplication, that our country may be protected from all the dangers which threaten it, that our civil and religious privileges may be preserved inviolate, and perpetuated to the latest generations, that our public councils and magistrates may be especially enlightened and directed at this critical period, that the American people may be united in those bonds of amity and mutual confidence, and inspired with that vigor and fortitude by which they have in times past been so highly distinguished, and by which they have obtained such invaluable advantages, that the health of the inhabitants of our land may be preserved, and their agriculture, commerce, fisheries, arts, and manufactures, be blessed and prospered, that the principles of genuine piety and sound morality may influence the minds and govern the lives of every description of our citizens, and that the blessings of peace, freedom, and pure religion, may be speedily extended to all the nations of the earth.

And finally I recommend, that on the said day, the duties of humiliation and prayer be accompanied by fervent thanksgiving to the bestower of every good gift, not only for having hitherto protected and preserved the people of these United States in the independent enjoyment of their religious and civil freedom, but also for having prospered them in a wonderful progress of population, and for conferring on them many and great favors conducive to the happiness and prosperity of a nation.

November 28, 2013 in DeGirolami, Marc | Permalink

Tuesday, November 26, 2013

Bottum responds to Garnett on enchantment and engagement

I am very glad to report that Jody Bottum wrote up a response to my post from the either day, about the importance of staying engaged in the perhaps-tiring, in-the-trenches efforts to secure better legal protections for vulnerable people.  Here is the response, in full: 

We do have to worry a little, Rick, about class and professional assumptions here in a discussion of abortion and the culture wars.
Not to poison the well, but you’re a lawyer (and more than that: a law professor, rearing up future generations of lawyers). Why is it a surprise that the pro-life cause looks like a legal argument? The admirable Robby George is a lawyer, and the great Hadley Arkes teaches jurisprudence, and . . . and . . . . The university-professor legal types have dominated this discourse for a long, long time (admittedly with a little help from the Thomistic philosophy faculty, for whom it was a short step from discussing natural-law problems to discussing the logical shortcomings of Casey v. Planned Parenthood).
Not that other kinds of people miraculously avoid falling down the well of professional assumptions. I’m a cut-rate poet and a down-market mystic, and lo-and-behold! I find myself drawn to solutions that call on the poetry of God’s mystical creativeness in the world. However often we pick up a shoe to drive a nail or grab a dime to turn a screw, our tools tend to shape the things we try to build with them.
And yet, I will say this: In the struggle against abortion, you law professors have had the public-intellectual part in your hands for forty years. So how’s it going? Some advances, yes, and a trending of public opinion in the right direction, however murderously slowly. Remember back as late as the early 1990s, when it was common to hear praise for the actual legal reasoning in Roe? It is now routine to find even feminist law professors admitting that Roe was a slurried mess of a constitutional decision, despite its arrival at their desired result. I was there in those days, Rick, and know that the change is due entirely to the efforts of pro-life legal analysts.
But perhaps we should, in a confessional mode, ask ourselves from time to time how many babies we have actually saved. The various Born-Alive acts served to clarify the contradiction—as the Marxists used to say, and as Hadley Arkes intended—of pro-abort thinking. Still, that new clarity was not the motor for declining abortion rates, except perhaps under some theory of the psychological effect of realizing the incoherence of abortion rhetoric. I don’t tend to such Platonic knowledge-ethics myself—Gosh, I’ve been logically self-contradictory all this time; I must change my life!—but even under that un-Pauline moral theory, the connection is pretty abstract. Don’t you find yourself disturbingly sobered, Rick, by the fact that, for all our pro-life work and constant commitment, Philadelphia’s serial killer Dr. Gosnell quite possibly did more to advance the pro-life cause than you or I have ever managed?
Yes, law and policy (to use your nice hendiadys) can save lives, which is why I vote a straight pro-life ticket; offered the choice, I’ll vote for a rabid Socialist dog-catcher, if he’s pro-life, before I’ll vote for a candidate of my own economics and political party, if he sounds like a squish about killing babies.
But there are two mistakes here we can make. The first is thinking that advances in law and policy have any permanence: The pendulum swings, political gains are reversed, the House changes hands, and then what do we do? As for the second mistake, we wander into magical thinking when we suppose that law and policy can drive culture more than a little, when the culture is resistant.
After reading your commentary, Rick, I want to cry, But what about the people on the sidewalk outside the abortuaries? What about the counseling centers? What about the little old ladies in mantillas telling their beads against this evil? What about those urging us to look and see—for God is alive, magic is afoot, and the infant in the womb bears the face of the one through whom all was made?
Perhaps I misread you, when I hear you saying that only your law-and-policy ways of fighting abortion count. But then, I think you over-interpret me when I say to forget the culture-wars crap. Maybe you think I’m being willful, to find in your rhetoric a diminishment of the spiritual. But then, I think you willfully over-read me when you run to accuse me of encouraging despair on the life issues, the most obviously metaphysical of our current evils, from my suggestion that social ethics is a fallow field. The defense of the unborn, as Pope Francis writes in his new Evangelii Gaudium, “involves the conviction that a human being is always sacred and inviolable”—and notice his consistent pattern of preferring sacral terms to legal.
It is true that I’m not going to gin up an outrage anymore about the awful things they’re doing in the Women’s Studies department at Southwestern North Dakota State University (SNDSU)—the very model of a culture-wars issue over the last forty years. Someone recently leaked to me Laurence Tribe’s internal Harvard memo to Dean Elena Kagan in response to an article I wrote almost a decade ago about plagiarism in one of his books. The memo is full of juicy tidbits, including Tribe’s throwing under the bus one of his most faithful student acolytes. But I just couldn’t bring myself to care enough about Harvard law school to write up the culture-wars attack I would once have.
And how is that to give up the fight? Continue your work, Rick, by all means. But would you feel we’ve betrayed the unborn if, before all that, we mentioned that hymns to God are sung in the trees and rivers? That the graves will give up their dead? That existence itself figures the Trinity, in how we live and move and have our being? That Christ was crucified and yet he rose again?
Murder is an old, old story, our friend Leon Kass once remarked. His point was that we must resist acts that redefine the human process (designing our descendents by cloning embryos for implantation and eventual birth, for example) even more than we resist acts that simply kill (cloning embryos for destructive medical research), however vile they may be.
I think I know what Kass meant and even why he said it. But it’s just a little too cold-blooded for me. Hyper-rationalism is not our friend here, and neither is “the myopia of a certain rationalism” that Pope Francis just noted. As we fight over process, we can begin to think process is the point—when saving babies is the point of the pro-life fight, thereby participating in part of God’s plan to save our souls.
Forgive me then, Rick, if I continue to propose that ordinary prayer and everyday awareness of the reality of God are more likely to find willing ears—if I preach the metaphysics of Christianity rather than the law-and-policy-betrayed social ethics of tattered old Christendom. In fact, you’ve joined me on this side of things before. Why not again?
Thoughts welcome, from readers and other MOJ-ers.

November 26, 2013 in Garnett, Rick | Permalink

Fr. Aidan Nichols, Quas Primas, the Social Kingship of Christ, etc.

"[P]ublicly recognising divine revelation is an entailment of the Kingship of Christ on which, despite its difficulties in a post-Enlightenment society, we must not renege."  Thus writes Fr. Aidan Nichols, OP.  I agree with Fr. Nichols's judgment, of course, but I have to wonder whether any other contributor to this blog also agrees.  Enthusiasts of the First Amendment's agnosticism will have a hard time on this one.   

The context of Fr. Nichols's statement is here, an exchange titled "Did Vatican II Usher In Our Secular Age?"  It's worth a very careful read.  I admire the authors' efforts to liberate Dignitatis Humanae from the Murray-inspired misreading that dominates the scene and attempts to distort doctrine.  

Christ's Kingship isn't *just* "in the end" (Cf. here): it is NOW.  "[W]e must not renege," as Fr. Nichols reminds us.  I agree with Rick Garnett (here), the culture wars must continue.  Charity and justice require that the Church be militant -- charitably and justly -- to adjust the culture and shape its direction for the common good, including public recognition and worship of Christ.  

Fr. Nichols's interlocutor, Moyra Doorly, has some trenchant things to say about the regnant hatred of the Church.  Christophobia is the diagnosis that comes to mind.


November 26, 2013 in Brennan, Patrick | Permalink

Court grants cert in HHS Mandate cases

As expected, the Court agreed to consider HHS mandate cases. The Court agreed to review the Hobby Lobby and Conestoga Wood cases.  http://www.supremecourt.gov/orders/courtorders/112613zr_ed9g.pdf

November 26, 2013 in Myers, Richard | Permalink

The "Joy of the Gospel"

Pope Francis has issued an Apostolic Exhortation entitled EVANGELII GAUDIUM. 

The Pope presents the "Joy of the Gospel" in its wholeness, which has been the theme of his pontificate from the very beginning.  Among many other things, including our obligations to the poor and the duty to establish and maintain just economic, political, and legal orders, the exhortation addresses the proper understanding of marriage--explicitly rejecting the "emotional bond" conception of "marriage" that underwrites revisionist ideas such as no-fault divorce and same-sex unions--and the obligation to defend the life of the child in the womb. Anyone who feared or hoped that Pope Francis intended to change (which would not be possible) or soft-pedal the Church's teachings on these matters might want to note carefully what he says.

On marriage:  "The family is experiencing a profound cultural crisis, as are all communities and social bonds. In the case of the family, the weakening of these bonds is particularly serious because the family is the fundamental cell of society, where we learn to live with others despite our differences and to belong to one another; it is also the place where parents pass on the faith to their children. Marriage now tends to be viewed as a form of mere emotional satisfaction that can be constructed in any way or modified at will. But the indispensable contribution of marriage to society transcends the feelings and momentary needs of the couple. As the French bishops have taught, it is not born 'of loving sentiment, ephemeral by definition, but from the depth of the obligation assumed by the spouses who accept to enter a total communion of life'”.

On the sanctity of human life:  "Among the vulnerable for whom the Church wishes to care with particular love and concern are unborn children, the most defenseless and innocent among us. Nowadays efforts are made to deny them their human dignity and to do with them whatever one pleases, taking their lives and passing laws preventing anyone from standing in the way of this. Frequently, as a way of ridiculing the Church’s effort to defend their lives, attempts are made to present her position as ideological, obscurantist and conservative. Yet this defense of unborn life is closely linked to the defense of each and every other human right. It involves the conviction that a human being is always sacred and inviolable, in any situation and at every stage of development. Human beings are ends in themselves and never a means of resolving other problems. Once this conviction disappears, so do solid and lasting foundations for the defense of human rights, which would always be subject to the passing whims of the powers that be. Reason alone is sufficient to recognize the inviolable value of each single human life, but if we also look at the issue from the standpoint of faith, 'every violation of the personal dignity of the human being cries out in vengeance to God and is an offence against the creator of the individual.'"

The complete text of the exhortation in English translation has been posted on the Vatican website.

HT to Patrick Langrell

November 26, 2013 | Permalink | Comments (0)

Monday, November 25, 2013

A brief reflection in response to an outrage in Argentina

At First Things, I offer in response to the recent outrage in Argentina a brief reflection on "our elder brothers in faith": 


November 25, 2013 | Permalink | Comments (0)

"Boring and Doomed": On the (continued) importance of engagement

In this piece, at Patheos, Jody Bottum returns to one of the themes that ran through his recent and much-discussed Commonweal piece on same-sex marriage.  The piece is called "Preaching Social Ethics:  Boring and Doomed."  "Christianity is fundamentally a metaphysics[,]" the piece states.  "Christendom is mostly an ethics. Our trouble these days is that Christendom is broken."

As with the Commonweal essay, it seems to me that this piece says some important things that are true . . . but also some things that are potentially misleading.  Certainly, as Jody writes (with more flair than I'm able to muster), Christianity is not just about what we are and are not supposed to do; it's about what and Who is.  But, Jody closes with this:

Forget the culture-wars crap. It was a fight worth having, back in the day when there was enough Christendom left to be worth defending. But such as American Christendom was, the collapse of the Mainline has brought it to an end. Start, instead, with re-enchantment: Preach the word of God in the trees and rivers. The graves giving up their dead. The angels swirling around the Throne. Existence itself figuring the Trinity, in how we live and move and have our being. Christ crucified and Christ resurrected. All the rest can follow, if God wants.

I realize it's kind of the thing these days to declare one's weariness with, or to announce the futility and wrongheadedness of, "culture-wars thinking."  And, again, such declarations are understandable.  Christians should not be happy about warmaking and the nastiness, division, snark, and pain that attend today's politics and controversies are nothing to be happy about.  Far better, and far more pleasant, to relish the world's enchantment than to argue about the ministerial exception or to complain about the latest silliness (or worse) being imposed on our children by the Edu-blob. 

Still, I think it is important to distinguish between (a) giving up on complaining about the coarsening of culture and (b) giving up on the important work of moving law and policy in a direction that better protects vulnerable people. Such movement is, in some places, possible and it saves lives.  Everyone who knows and reads Bottum's work knows that he is deeply committed to human dignity and to the pro-life cause, but there's a danger, I fear, that some will hear him to be saying that working for this kind of right-direction movement in the law is "crap."  
Yes, there are failures of metaphysics at the root of the problems that are often seen to be "culture" problems.  There are also constitutional and legislative and executive failures.  Our current abortion-law regime reflects a flawed "metaphysics," but also sloppy constitutional interpretation and misguided politics.  This side of Heaven, I don't think it is an option for pro-lifers to walk away from responding to the latter. The fight to improve - to the admittedly limited extent we can - our positive laws so that they better protect the vulnerable is not inconsistent, it seems to me, with appreciating the deeper roots of the problem. 
This Pope, it seems to me, has not suggested that Christians settle for unjust laws and murderous policy. (If he did, in any event, he would be wrong to do so.). Sure, we should be winsome and attend to witnessing, not merely arguing. But to just walk away because we would rather (as we both would) write about other things hardly seems the lesson of the Good Samaritan. 

November 25, 2013 in Garnett, Rick | Permalink