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.

Sunday, February 9, 2014

Gratitude, hope, and a couple of thoughts on MOJ at 10

As one of the latest-added contributors to Mirror of Justice, I suppose it makes sense that I am among the last to post on the blog’s tenth anniversary. Who knows what the next ten years may hold for this blog? Given the continual changes in how legal analysis of the sort we offer is produced and consumed (e.g., Twitter did not come around until a couple years after this blog was started), it is hard to say. Rather than offer predictions, then, I would instead like to express my gratitude and hope.

Above all, I am grateful for the people of Mirror of Justice, by which I mean the entire Mirror of Justice community—not just the contributors but the blog’s regular readers and occasional visitors. As someone who has drifted from occasional visitor, to more regular reader, to commenter and “Friend of MOJ,” to contributor, I have long appreciated Mirror of Justice, and from a number of perspectives. Speaking personally, the perspectives from which Mirror of Justice has made the biggest difference for me were my former perspective from outside the legal academy looking in and contemplating whether to leave my firm, and my perspective now as an untenured law professor still trying to figure out the right mix of topics to write about and the best angles to approach them from. These perspectives have helped me to appreciate the personal courage and intellectual equanimity that I have observed on Mirror of Justice over the last ten years. 

We all fall short of our aspirations sometimes (some of us more than others!), and blogs present spiritual dangers of their own. But this blog has been a more substantial source of sustenance for me than so much else that is out there. I am grateful for the many labors of love that have been lavished on Mirror of Justice in the last decade. They are evidence of the truth of Pope Benedict’s observation in Caritas in Veritate that “[l]ove—caritas—is an extraordinary force which leads people to opt for courageous and generous engagement in the field of justice and peace.” 

Continuing to take my cues here from Caritas in Veritate, I am convinced that careful thinking about the law can provide “a service to charity enlightened by truth” and can “help give credibility to truth, demonstrating its persuasive and authenticating power in the practical setting of social living.” One of my hopes for Mirror of Justice is that it can provide that kind of thinking, with charity at its core.

Careful thinking about the law can, of course, take many forms. And just as there are many ways that it can be done well, there are also many ways in which it can go wrong. May God bless all efforts to get it right.

And now for something more specific: The inescapably controversial character of many of the topics appropriately addressed on a blog of this sort presents obvious difficulties with respect to both caritas and veritas. As someone who controverts (maybe too often), I do not believe that controversy in itself is an evil to be avoided. But I have often wondered how this blog might best be used for construction and not just criticism. Others’ tenth anniversary reflections have prompted a couple of thoughts along those lines that I’d like to conclude by sharing.

First, the concept of “Catholic legal theory” remains something of a difficult concept for me to grasp. Michael Moreland’s discussion of the danger of “extrincism,” together with reflecting about a project on Judge Posner and Judge Wilkinson that Marc DeGirolami and I have been working on for a while now, leads me to think that “Catholic legal theory” may not provide the best label for what Mirror of Justice may best be able to offer. In the essay quoted by Michael Moreland in his post, Michael Buckley contends that “the dynamism inherent in all inquiry and knowledge—if not inhibited—is toward ultimacy, toward a completion in which an issue or its resolution finds place in a universe that makes final sense.” That contention seems correct, and it should affect how we think about a blog devoted to “Catholic legal theory.” Perhaps we can do a better job at Mirror of Justice by not conceiving of the project as one of developing “Catholic legal theory,” as if this were one legal theory alongside others out there. With respect to constitutional law, for example, “Catholic legal theory” need not take the form of any one of the types of “Cosmic Constitutional Theory” criticized by Judge Wilkinson in his book of that title. Instead, we should recognize that Catholic thinking supplies something even more cosmic—knowledge and beliefs about the cosmos itself, and about the place of law in that cosmos. And just as one can navigate neighborhoods in one's town or city without thinking explicitly about the cosmos as a whole (consider commuting, for instance), one can navigate neighborhoods of the law without thinking explicitly about the cosmos as such. And maybe it would be worthwhile for us to do more of that: think as Catholics (or as Catholics would think) about various neighborhoods of the law, but without conscioulsy tying this thinking into anything explicitly Catholic.

The second thought, which stands in some tension with the first, is that it would be helpful to more directly address the jurisprudential underpinnings of American law from the point of view of Catholic thought. I hesitate to suggest this because theoretical jurisprudence has never been one of my strong suits. I am much more comfortable dealing with doctrine and probing the particularities of cases than I am in deciding who is right as between Jules Coleman and Ronald Dworkin. But I am convinced more than ever that neglect of the natural law tradition has left American legal thought unstably oscillating between impoverished positivism and impassioned emotivism. If I were stronger in jurisprudence, I could explain better what I was trying to say in that last sentence. But because that is not my strong suit, I will just say this: Read all of the opinions in Windsor and the lower court decisions purporting to “apply” it/them. 

I do not think that better natural law reasoning or more perspicuous “Catholic legal theory” will make a difference today or tomorrow or any time soon in American constitutional law. If that were the case, a majority of the Supreme Court would have had the sense to at least recognize, as Justice Alito explained in dissent, that the Windsor majority was taking sides in “a debate between two competing views of marriage.” But I do think that the natural law tradition and Catholic thinking about the law more generally can help us recognize American constitutional law’s positivity for what it is, which would be no small thing. Or so I posit.


Walsh, Kevin | Permalink