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 28, 2014

Prof. Robert E. Rodes, Jr., R.I.P.

My friend and colleague, Bob Rodes -- who taught at Notre Dame Law School for nearly 60 years and who published in seven different decades -- died on Tuesday morning.  During his career, he wrote about church history, courtly love, workman's compensation, maritime law, religious freedom, liberation theology, symbolic logic, legal ethics, .  . . .  He had been working on (yet) another book, a collection of his articles on church-state relations.  Here is a very nice announcement and collection of reflections.   For an insightful and warm introduction and overview to Bob's work, check out this piece, written by his colleague and friend, Tom Shaffer, called "The Christian Jurisprudence of Robert E. Rodes, Jr."  Here is an excerpt from the announcement mentioned above, by my colleague Judge Kenneth Ripple:

His junior and senior colleagues relate remarkably similar stories about his deep and lasting impact on their lives. U.S. Seventh Circuit Judge and Professor Kenneth F. Ripple provided an apt metaphor in describing Bob’s impact on the Law School: “Every great institution has, as Scripture describes them, ‘living stones’ —individuals who, sometimes at great personal sacrifice, become the foundation of all the accomplishments that come afterward. At Notre Dame Law School, Professor Bob Rodes will always be a supporting part of the foundation of this very special law school. He loved his students; he loved his colleagues; and he loved what he called the ‘legal enterprise’ in which we all work together. He was the voice of the Spirit, always reminding us of our better selves.” . . .

November 28, 2014 in Garnett, Rick | Permalink

Wednesday, November 26, 2014

John Witte named Woodruff Professor at Emory

Prof. John Witte is one of the most prolific and important law-and-religion scholars now working, and he has been a wonderful friend and generous mentor to me and to many others.  This news, about his appointment to the very prestigious Woodruff Professorship (an honor he now shares with our own Michael Perry!), is wonderful.   From the press release:

John Witte Jr.—acclaimed teacher, prolific scholar and director of the Center for the Study of Law and Religion—has been named Robert W. Woodruff Professor of Law at Emory University School of Law.

Witte, an internationally recognized legal historian and expert on Christian jurisprudence, marriage and family law, religious liberty and human rights, came to Emory in 1985. He has spent the past 29 years breaking ground in the field of law and religion, while remaining committed to his first calling as a teacher. 

“The Woodruff professors are more than teachers and scholars of distinction; they serve a broad constituency that transcends individual departments and programs,” says Provost Claire Sterk. “As a leading authority on law and religion with an impressive body of scholarship, Professor Witte has earned a place among Emory’s most distinguished faculty.”

Witte has taught more than 5,500 students in courses such as criminal law, constitutional law, legal history, marriage and family law, religious liberty, human rights, and law and religion. Emory Law students have elected him Most Outstanding Professor 12 times. The Black Law Students Association has also elected him Most Outstanding Professor. More than 100 students have published books and articles under his supervision.

Emory University has recognized his teaching with two Crystal Apple Awards, the Emory Williams Distinguished Teaching Award, the Distinguished Faculty Lecture Award and the University Scholar Teacher Award, which was matched by a national award from the United Methodist Church Board of Higher Education.

Witte has delivered more than 350 public lectures around the world and is a regular keynote speaker at academic conferences. He has published 220 articles, 15 journal symposia and 27 monographs and anthologies, with five monographs under contract.

“Professor Witte’s writings and lectures have put him at the forefront of law and religion scholars around the world,” says Dean Robert A. Schapiro. “His work is known and praised by scholars of law, theology, philosophy, ethics, politics and history alike.” . . .

November 26, 2014 in Garnett, Rick | Permalink

Sunday, November 23, 2014

Pastor Johann Christoph Arnold on "God, Sex, and Marriage"

Pastor Johann Christoph Arnold of the Bruderhof cmmunities was among the featured speakers at the recent Colloquium on the Complementarity of Man and Woman in Marriage at the Vatican. Although Pastor Arnold's address did not attract the international publicity of some of the better known speakers, such as Chief Rabbi Lord Jonathan Sacks and Pastor Rick Warren, it was no less wonderful. A special edition of Pastor Arnold's book God, Sex, and Marriage was prepared for the Coloquium and distributed to all participants.  It is a book I highly recommend.  For the special edition, I had the honor of being invited to contribute a short Preface.  Here is the text (with a warning that it is no substitute for reading Pastor Arnold's splendid book!):



There are men and women of extraordinary wisdom and insight who transcend their particular communities and traditions to be teachers of mankind.  Plato was one.  So was St. Augustine.  So were Mahatma Gandhi and Mother Teresa of Calcutta.

Are there no longer such great-souled people?  Do they exist only in the past?

No.  Pope Francis is a teacher of mankind.  So is Chief Rabbi Jonathan Sacks of Great Britain.  So is the author of the small but powerful work you hold in your hands, Pastor Johann Christoph Arnold of the Bruderhof communities.

Pastor Arnold’s wisdom derives from more than just careful reflection on the moral and existential issues he addresses.  It is the fruit of a life lived in a community dedicated to Christ-like simplicity, love, and holiness.  What may strike the reader as unique and uniquely powerful insights are, in truth, the efflorescence of the accumulated wisdom of that very special community—a community of which Pastor Arnold is a spiritual leader and from which he draws strength and vision.

So what is so often the case with great teachers of mankind is true of Pastor Arnold:  It is his rootedness in a particular tradition and community of faith that enables him to offer the larger world a profound illumination—a body of wisdom that transcends every tradition and speaks to people of every community.

In Sex, God, and Marriage, Pastor Arnold shines a powerful light on truths about the dignity, beauty, and joy of properly ordered sexuality—sexuality ordered to the loving and fruitful communion of husband and wife in a permanent and exclusive covenant ordained by a loving and merciful God.  These are ennobling, life-giving, relationship-sustaining truths that have been obscured in recent decades and even centuries by vices ranging from harsh religious legalism to narcissistic me-generation expressive individualism.

The consequences, for all who have eyes to see, could not be clearer:  the normalization of promiscuity, cohabitation, and out-of-wedlock childbearing; the emergence of the divorce culture and societal acquiescence to large-scale family breakdown and fragmentation; a veritable plague of sexually transmitted infections and diseases; the appallingly widespread destruction in the womb of children who were “unplanned” and are “unwanted” products of sexual pleasure-seeking; the objectification of self and others and the broader coarsening of attitudes and sensibilities that is inevitable when people come to regard their own bodies and the bodies of others as instruments for pursuing personal gratification; and the sadness—particularly of the young, who had been told that “sexual freedom,” in the form of liberation from allegedly “outmoded” norms of sexual self-possession and restraint, would usher in the “Age of Aquarius.” Instead, our young men and women have been bequeathed a world of broken hearts and wounded relationships; fragmented families and fatherless children; AIDS and HPV; manipulation and sexual exploitation; abortion.

So where can we find “a more excellent way”?

Pastor Arnold, drawing on the riches of the Christian understanding of the relationships between God and man, man and woman, parents and children, and body and soul, knows that it is not to be found in a return to any form of legalism.  It is, rather, a misunderstanding of sex, God, and marriage to suppose that God established marriage exclusively as a means of procreation and restricted the value and permissibility of sexual congress to those circumstances in which husband and wife are seeking a child.  Likewise, it is a misunderstanding to suppose that God established sexuality for pleasure, but restricted the pursuit of its pleasure to the marital bond.

Rather, God designed sex to unite a man and woman in a uniquely comprehensive bond—one that extends the unity of hearts and minds that is present in any true friendship into the bodily plane where,  the sexual-reproductive complementarity of husband and wife enables them to, in the words of Scripture, “cleave to one another and become one flesh.”  Sex does indeed belong in marriage, and only in marriage, and marital communion must be open to the beautiful gift of new life; but it is not a mere means—whether to procreation, as great and wonderful a good as that is, or to pleasure.  Marriage, considered precisely as a one-flesh union—a conjugal bond—is an intrinsically valuable (and unique) form of personal communion.  It is inherently fulfilling of a man and woman, as a basic community of persons, to unite in the form of relationship that is ordered to procreation and would naturally be fulfilled by having and rearing children together.  And that is true, even if the blessing of children is not, in the circumstances, possible for them.

And yet, for most couples the gift and joy of children is indeed possible—if only they keep their hearts open to receiving little ones as the fruit and most complete fulfillment of their marital love.  Children should never be regarded as just another lifestyle choice, much less a burden; nor should we treat the care of children as drudgery.  And in caring for children, we must always place the child’s need for love above all else. As Pastor Arnold teaches, among our first duties to children is to preserve childhood itself by, among other things, protecting the innocence of children.

But now I am saying clumsily and in a complicated way what Pastor Arnold says so beautifully and simply.  So I will detain you no longer, gentle reader.  I leave you in the company of a teacher of mankind, a witness to hope, a friend of God.  His words will bless you.  Please let them guide you.


Robert P. George

Princeton University

November 23, 2014 | Permalink | Comments (0)

Great "Christ the King" resources from Fr. Barron

Available here.  I particularly liked this one, about the Cristero War.

November 23, 2014 in Garnett, Rick | Permalink

A short response to Greg Sisk regarding the President's speech and order

Like Greg, I think that a Catholic must be a Catholic before he or she is a partisan and that it is entirely appropriate for leaders to invoke Biblical themes and words in public-policy speeches (although there seems to me to be a clear and tiresome double-standard used by most commentators with respect to such invocations).  And, for what it's worth, I am inclined, at present, to think that the substance of the order is good policy.  We do need, and have needed for a while (as both President Bush and Sen. McCain believed), "comprehensive" and just immigration reform.  

I am not sure I'm on the same page, though, with respect to what I take to be Greg's suggestion that we can characterize the speech as "masterful" or make confident predictions about the President's political goodwill without first coming to some conclusions about the "legality of his executive order."  A well-delivered speech with inspiring content is, it seems to me, praise-worthy if it is delivered in the context of an act that the speech's deliverer believes, in good faith, to be lawful.  But, if delivered to defend an action that the deliverer believes or should know is not legally authorized, then it seems to me that even a speech that is excellent in terms of craft is not praise-worthy.    

Respect for the rule of law -- which, in our context, means respect for the structural features and limits in our Constitution and for the President's obligation, even if he or she is frustrated by Congress's failure to enact the legislation he or she would like to see enacted, to faithfully execute the laws Congress has made -- is, it seems to me, as "Catholic" a principle as is welcoming solidarity with the immigrant and the stranger.  (And again, to be clear, I believe that our immigration policies should be in keeping with this welcoming solidarity.)  

All that said, I do not yet have a firm view on the issue of the order's legality, but I do have serious concerns and questions.  And, I believe that even those of us who approve of the substance of the order should care, a lot, about whether the order really is within the President's constitutional authority.  We should be troubled -- conservatives and liberals, Catholics who embrace the Church's social teachings those of us who support immigration reform, all of us -- by what seems to me to be the widespread attitude that the "power" question does not really matter, as long as we like the policy, and that Congress's failure (or, shouldn't we say, decision not) to act somehow creates power in the Executive.      

November 23, 2014 in Garnett, Rick | Permalink

Christ the King, political theology, and Fr. Miguel Pro.

Today is the Solemnity of Christ the King.  In my experience, preachers in Catholic parishes don't know quite what to do with this Feast.  Usually, the day's "message" or "theme" has been (again, in my experience) something to the effect that we should ask if we are "putting Jesus first in our lives" (and, certainly, we should). 

And yet . . . especially in light of the emerging (and much needed) focus in the Church on religious liberty and the realities of both aggressive secularism and persecution, it's worth (re-)reading Quas Primas, the encyclical of Pope Pius XI that instituted the feast day in 1925, and remembering that this institution's purpose sounded more in political theology than in personal piety and devotion.  This feast -- which we celebrate, again, this Sunday -- is a reminder that government is not all, that there are things which are not Caesar's, and that everything, in the end, is "under God."

So . . . Here is a little Solemnity-appropriate reading:  Pope Pius XI's Quas Primas.  Great stuff.  "Viva Cristo Rey!"

UPDATE:  More, on Miguel Pro, S.J., here.

November 23, 2014 in Garnett, Rick | Permalink

Friday, November 21, 2014

Obama's Immigration Speech: Masterful

You shall not oppress or afflict a resident alien, for you were once aliens residing in the land of Egypt. (New American Bible, Exodus 22:20)

As anyone who has visited the Mirror of Justice knows, my political affiliation is Republican, which I believe is consistent with my Catholic values.  But when the two conflict, the principles underlying Catholic teaching must take priority.

So let me give credit where credit is due:  President Obama's speech last night was masterful.

I am not saying that I agree with the wisdom of his exercise of executive authority on this matter.  Nor do I mean here to come down on one or the other side of the debate on the legality of his executive order.

But, setting the means to one side for a moment, the substance and style of President Obama's address to the nation were admirable.  He was conversational, while also being eloquent.  He offered thoughtful points, not merely rhetoric, without dragging on at length (as he is wont to do).  He explained not only what he was doing, but also the many things he was not doing, exemplifying some measure of prudence.

He was generous toward those who disagree with him, not showing any of the petulance that some have perceived in the days since the Democratic defeat in the midterm elections.  He forthrightly addressed the difficult questions, not bypassing them.  He explained his reasoning on those issues, seeking to find a consensus path.  I do recognize that some will respond to the President's action by refusing thereafter to consider legislative immigration reform.  This would be a mistake of both strategy and policy.  There remains much work for the Congress to do on immigration.  President Obama has not preempted that work.  And he will prove, I believe, to be a willing partner in that political process from this point onward.

And President Obama spoke from the heart and reflected well on the American character.  His closing with Scripture -- the passage reminding the people of Israel to be generous with those who are strangers in the land for they were once strangers in a foreign land -- was right on the mark and should strike to the heart of every person of faith.  (I am saddened that some conservatives, I hope in the heat of the moment, have suggested that quoting the Bible was somehow out of bounds.  Recalling what Jesus told his disciples when they complained that some people not of their group were doing works in his name, we should celebrate when others send forth the Word of God.  Mark 9:38-40:  Jesus:  "For whoever is not against us is for us.").  I've set out above the passage from Exodus that President Obama used, from the New American Bible frequently used by Catholics.

But please, and I say this especially to my fellow Republicans who are understandably dubious about President Obama's policies and motivations, don't take my word for it.  Invest the very few minutes necessary to listen to the speech in its entirety and do so with an open heart before making a judgment.  For convenience, I link directly to it below:


November 21, 2014 in Sisk, Greg | Permalink

The interpretive significance of the Constitution's positivity in a classical natural law jurisprudence

At The Originalism Blog, a recent post by Mike Rappaport distinguishes among "three main arguments for originalism" and explores a hybrid approach "that views the original meaning as the law, not based on positivism, but based on a normative or idealized conception of the law."

The three main arguments for originalism Rappaport identifies are: "1. Originalism as an interpretive theory (the most accurate meaning of the original document); 2. Originalism as a normative theory (the most normatively desirable interpretation of the Constitution); and 3. Originalism as positivism (the original meaning is the law)." Later in the post, Rappaport links "the positivist theory" to a theory that relies on a "rule of recognition." This linkage makes clear that the third kind of argument in Rappaport's taxonomy really is "positivism" rather than simply about the original meaning of the Constitution being positive law. This distinction is important because positivism need not be the only game in town when it comes to jurisprudential frameworks for (1) understanding the Constitution as positive law, or (2) underwriting a positive-law-based argument for some form of constitutional originalism. 

In particular, it seems to me that classical natural law jurisprudence has the potential to provide a powerful set of arguments for something like what Steve Sachs has recently (and aptly) called "original-law originalism." To be clear, I do not contend that classical natural law jurisprudence on its own does (or can) prescribe anything nearly as specific as, say, original-law originalism. The idea instead is that classical natural law jurisprudence may be able to explain the kind of positive law that the Constitution is in a way that supports original-law originalism as a jurisprudentially superior approach to rival theories of constitutional interpretation. 

This post is but a stab at a start. Whether to continue this inquiry and how far to take it will depend on how well arguments that I have not yet worked out actually do work out. (For earlier analysis and discussion of some issues that I may touch on, see this exchange between Robert George and James Fleming published in 2001 in the Fordham Law Review: George essay, Fleming critique, George reply, Fleming surreply, additional comments by George).

A good place to begin is classical natural law theory's account of the law's authority. Finnis writes:

Natural law theory's central strategy for explaining the law's authority points to the under-determinacy (far short of sheer indeterminacy) of most if not all of practical reason's requirements in the field of open-ended (not merely technological) self-determination by individuals and societies. Indeed, the more benevolent and intelligent people are, the more they will come up with good but incompatible (non-compossible) schemes of social coordination (including always the 'negative' coordination of mutual forbearances) at the political level--property, currency, defence, legal procedure, and so forth. Unanimity on the merits of particular schemes being thus practically unavailable, but coordination around some scheme(s) being required for common good (justice, peace, welfare), these good people have sufficient reason to acknowledge authority, that is, an accepted and acceptable procedure for selecting particular schemes of coordination with which, once they are so selected, each member of the community is morally obligated to cooperate precisely because they have been selected--that is, precisely as legally obligatory for the morally decent conscience. (CWJF IV.5.114-14)

Situating the Constitution of the United States within this account, the moral obligatoriness of the Constitution takes the form of legal obligation to cooperate with the Constitution as the posited scheme of coordination for serving the common good.

(Note: References to the Collected Works of John Finnis will take the form "CWJF Volume.Chapter.Page(s).)

November 21, 2014 in Walsh, Kevin | Permalink

Programming note: Religious freedom and pluralism at Princeton

In a few days, I'll be joining what looks to be a fascinating group of scholars at Princeton's Program in Law and Public Affairs for a conference called "Religions, Rights, and Institutions."   I'm presenting on a panel called "Secular Carve-outs in a Religious World; Religious Carve-outs in a Secular World."  I expect to be challenged by several of the papers, including Mary Ann Case's "Why 'Live-And-Let-Live' Is Not a Viable Solution to the Difficult Problems of Religious Accommodation in the Age of Sexual Civil Rights" and Larry Sager's "Why Churches Can Discriminate".  Stay tuned!

November 21, 2014 in Garnett, Rick | Permalink

Jody Bottum on the new heresies and shunning

A perceptive essay, here, at The Weekly Standard.   Bottum observes (among other things) that the movement from "religious" to "spiritual" to secular has not -- far from it -- erased the impulse to cast out the heretic.  A taste:

Our social and political life is awash in unconsciously held Christian ideas broken from the theology that gave them meaning, and it’s hungry for the identification of sinners—the better to prove the virtue of the accusers and, perhaps especially, to demonstrate the sociopolitical power of the accusers. Moreover, in our curious transformation from an honor culture into a full-fledged fame culture over the past century, we have only recently discovered that fame proves just as fragile as honor ever was, a discovery hurried along by the lightning speed of the Internet. Twitter and Facebook may or may not be able to make someone famous, but they can certainly make someone infamous in the blink of an eye. And because sinners’ apologies never receive the same publicity as their sins, the Internet both casts its targets from the temple and leaves them out there, lost among the profanities.

November 21, 2014 in Garnett, Rick | Permalink