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.

Tuesday, December 30, 2014

Last Shameless Self-Promotion of 2014: Marital Privilege (The Novel)

Christmas is now past and you’re wondering why you didn’t get exactly what you wished for from Santa Claus.  And what you really, really hoped would end up under the tree was a (still) new law-school-mystery-Catholic-drama novel by a Mirror of Justice contributor!


It’s not too late to get Marital Privilege and, if you go with the Kindle edition, still receive it in the year of its first publication date. 

And that’s also the last shameless self-promotion — for this year anyway.

Happy New Year All!

December 30, 2014 in Sisk, Greg | Permalink

An Act against Jesuits, Seminary Priests, and such other like disobedient Persons…


As I mentioned in my last post of December 24, I am working my way through Jessie Child’s God’s Traitors: Terror and Faith in Elizabethan England. Yesterday, I came across a reference in the Child’s book to an interesting but ominous statute enacted by Parliament in 1585 [27 Eliz. c. 2] severely regulating—by means of prosecutions for high treason, the imposition of onerous fines, the legal device of praemunire, and other mechanisms—the presence and apostolic work of Jesuits and other Catholic clergy trained elsewhere in Europe, along with “such other like disobedient Persons,” for “stir[ring] up and mov[ing] sedition, rebellion, and open hostility” within Elizabeth’s realm. [the English of the statute has been modernized] A digital copy of this legislation is HERE:  Download 27 Elizabeth c. 2. The title of this Act is duplicated in the subject line of this posting.

Upon reading the Elizabethan legislation dealing with Jesuits and other “papists”, I considered whether there may be parallels in which legislators and interest groups of today propose laws and regulations that have similar effects on the practice of the Catholic faith in the US and the other western democracies. This may be an item which those attending the Lumen Christi/Christian Law Professors Fellowship event that overlaps with the upcoming AALS conference being convened in our nation’s capital may wish to explore given the importance of libertas ecclesiae to many members of the mentioned gathering.

A major objective of the Elizabethan legislation was to compel the realm’s subjects to conform to the previous laws making the sovereign the supreme head of the church in England and to observe scrupulously other laws regulating religious belief and practices (practices including not only private devotion but also religious exercises in public life). Within the context of this goal, an underlying objective was to eradicate any element of “popery” involving any practice of the Catholic faith that would include the education of young persons. In reflecting upon the legal developments of the present age having an impact on any aspect of religious freedom (a topic frequently addressed by contributors to the Mirror of Justice), I think it vital to consider how the practice of Catholicism in the public square today, which includes the enterprise of education that employs the modifier “Catholic,” has been adversely affected by ongoing legal developments in the US and other democracies, e.g., what must be taught in Catholic schools of any level; what activities the faithful and their clergy can pursue in public life; what can be expressed from any pulpit that some may consider “hateful” and, therefore, prosecutable statements; the degree to which religious persons may engage in any aspect of public life (especially the right of free expression of ideas related to the common good) as urged by Catholic teaching.

The Elizabethan legislation gave several outs from prosecution for those who might otherwise be subjected to the statute’s enforcement. The first was to leave the jurisdiction “if the Winde Weather and Passage shall serve the same”. Thank goodness for the cooperation of the mercurial nature of the weather and tides! Another way to avoid prosecution and forfeiture of all possessions was to conform to the state religion where the temporal sovereign is the self-declared “supreme head”. But these “options” were as odious to English Catholics of the Elizabethan era as they would be to many of us today.

I would like to emphasize the portion of the Elizabethan statute that attempted to control education in such a fashion that only state-sanctioned education—which would of course undermine the competence of Catholic authorities and the presence of Catholic teaching—could be made available. An initial point about this element of the statute meriting attention is the will to control what is taught and what is forbidden to be taught. This was not simply a problem for Elizabethan times; it is of major concern today when Catholic institutions are pressured in some form or other to suppress the Catholic perspective and teachings or face the consequences that the regulators will decide. I can recall being present at faculty-appointments meetings where the suitability or unsuitability of candidates for teaching posts was discussed and where anyone “too Catholic” would likely be removed from further employment consideration. Another point worth considering here is what role, if any, do Catholic and Christian teachers of the law have in those matters dealing with the tack of curriculum development and the approaches to how substantive matters are to be taught? Clearly those of us who have taught law or continue to do so have many occasions to form intellectually and virtuously future lawyers, judges, legislators, regulators, and citizens so that laws concerning the authentic freedom of religion will not duplicate the grave harms present in the Elizabethan statute. Might we take a moment as we plan our instruction to consider the prophetic words of George Santayana: those who do not remember the past are condemned to repeat it?

Perhaps the words of Christopher Dawson, an Englishman and convert to Catholicism, might further inspire legal educators who consider themselves Catholic and Christian as they pursue their duty: “if Christians cannot assert their right to exist in the sphere of higher education [or any sphere, for that matter], they will eventually be pushed not only out of modern culture but out of physical existence.” Dawson further noted that his warning applied not only to those who live in totalitarian systems but also to those who live in the realms of the great western democracies.

As teachers of the law, we have an obligation to remind anyone with whom we come in contact about the dangers of the past that threatened libertas ecclesiae. If we do not, let us not look for scapegoats when we are condemned to repeat and experience these perils.


RJA sj


December 30, 2014 in Araujo, Robert | Permalink

Redemption is Not the Purpose of Punishment

An interesting piece by Theodore Dalrymple, concerning the punishment meted out to a London financier who dodged his commuter fare in an unprecedentedly and willfully systematic way. Dalrymple reacts to a column by the philosopher Nigel Warburton, who advanced (but ultimately rejected) certain arguments that the financier should not have been banned for life from working on London's equivalent of Wall Street ("the City") because that would stymie his "redemption." I think I agree with Warburton that the justice of a society is conceptually prior to the justification of punishment within that society. But it is also true that a society need not achieve perfect justice before engaging in punishment practices.

[E]ven if the redemption of the punished were the object of punishment, this would be false. There is always more than one route to earthly redemption and to being useful to other people. It cannot possibly be that a return to finance is the only way Burrows could prove he had turned over a new leaf. Indeed, a return to the City, at least at a level that he would find attractive or commensurate with his knowledge and experience, would resemble impunity more than an opportunity for redemption.

But at any rate redemption is not the purpose of punishment, for if it were there would be no crimes beyond its reach, no crimes so terrible that they could not be forgiven. Far from being generous, this kind of reasoning seems to me callous—lacking in imagination about just how terrible crimes can be, an almost wilful disregard of the history of the 20th century. And if a Christian were to object that no crime is beyond the Savior’s forgiveness, it should be recalled that His kingdom was not of this world. As for us, we are men, not saviors.

The second, and “more worrying” reservation in Warburton’s mind is that the punishment will be applauded by a populace already angry with, and envious of, financiers. Thus it would “deflect attention from greater inequalities that some in the square mile [“the City”] perpetuate.” Burrows “may be a scapegoat,” he writes.

This seems a destructive argument. It is true, of course, that there are far greater crimes than the one under discussion here. But just as there can be only one richest man in the world, so there can be only one worst criminal (or a few equal worst criminals) in the world—at least if the badness of crime can be measured on an analogue scale, which I very much doubt. It is no excuse for one man that another man has done something even worse. I cannot argue in my defense, when caught for speeding, that I know someone who drove twice as fast and got away with it, rendering any fine imposed on me an act of scapegoating.

In the end, the philosopher (whose touchstones in this piece are John Rawls and Thomas Piketty) comes down on the side of banning the bloody one-percenter. Still, it is worth noting that his two hesitations before lowering the boom—they are not his alone, I suspect—are based upon misunderstandings, first that the purpose of punishment is redemption of the punished, and second, that no one can be rightfully punished until justice is perfect[.]

December 30, 2014 in DeGirolami, Marc | Permalink

Monday, December 29, 2014

St. Thomas Becket and Magna Carta


Today is the Feast of St. Thomas Becket, murdered on this date in 1170. I've reposted below a post from 2012 with an excerpt from John Guy's fine biography of Becket.

And for those looking to learn more about medieval English law and its legacy, I commend the exhibit on Magna Carta now on display at the Library of Congress in Washington, including a rare viewing of the Lincoln Cathedral original of Magna Carta. It was Henry II's feckless youngest son John, of course, who was forced to issue Magna Carta in 1215. And the (likely) principal author of Magna Carta was Becket's successor as Archbishop of Canterbury, Stephen Langton, who, like Becket, was forced into exile in France by the King but returned to England to lead the struggle against an overweening monarch. Recall that the first clause of Magna Carta is: "That We have granted to God, and by this present charter have confirmed for us and our heirs in perpetuity, that the English Church shall be free, and shall have its rights undiminished, and its liberties unimpaired." ("In primis concessisse Deo et hac presenti carta nostra confirmasse, pro nobis et heredibus nostris in perpetuum quod Anglicana ecclesia libera sit, et habeat jura sua integra, et libertates suas illesas.")

From December 29, 2012:

A blog devoted to Catholic legal theory can hardly let pass today's Feast of St. Thomas Becket (c.1181-1170). Peter Glenville's 1964 film with Richard Burton as Becket and Peter O'Toole as Henry II is a classic. More recently, the eminent Tudor historian John Guy (author of a number of fine books on Thomas More) has written a splendid biography of Becket--a taste here:

For his attack on the church's claim of immunity from secular jurisdiction, Anglo-American lawyers and constitutional historians in the nineteenth century would put on rose-colored spectacles and reinvent Henry as a legal reformer avant la lettre, a pioneer of fair trials and equality before the law who paved the way for some of the most important clauses later incorporated into Magna Carta and the U.S. Constitution and Bill of Rights. In reality, however, his actions showed that the rights of the accused could always be overridden by political considerations and the king's will. Far from remodeling the legal system and the courts in the interests of justice and the common good, Henry sought to strengthen his own power. And far from being a pioneer of "equitable" or "impartial" justice, he happily presided over his own court in the Battle Abbey case and at Becket's trial for embezzlement and false accounting at Northampton, acting simultaneously as chief counsel for the prosecution, judge, and jury. In response, Thomas would prove that a middle-class Londoner could transcend his social origins and challenge a ruler who he believed was degenerating into a tyrant, but it would cost him his life. Thomas More would take a similar path in Henry VIII's reign, and it may be no coincidence that More's working library contained many of the same books as Becket's.

John Guy, Thomas Becket: Warrior, Priest, Rebel (Random House, 2012), p. 338.

December 29, 2014 in Moreland, Michael | Permalink

Wednesday, December 24, 2014

The Christmas Gift that Keeps Giving…


I apologize for my absence from this site for a bit, but some may find this truancy a blessing, but others may not. Nevertheless, I digress.

Tonight, we Catholics and many other Christians celebrate Christmas Eve. There was a time when Catholics in the United States celebrated this night with many of our fellow Americans and citizens and subjects around the world not only as a holiday but as a feast of the Church. But nowadays, this is less so. Christmas or the Holidays as Christmas is more popularly known these dys (which holidays, I am not sure: Lincoln’s Birthday? Ground Hog Day? Arbor Day? Etc.) seem[s] to be a celebration of something other than God’s gift of Himself for the salvation of humanity—God through His Son giving of Himself even unto death to rescue us from our sins in order that we might be with God forever. I was reminded of this loss after leaving the Dana Farber Cancer Institute yesterday following a long day of treatment and passing by the fashionable Chestnut Hill Mall near Boston where thousands were engaged in the frantic suit of buying gifts for family and friends. Mind you, buying gifts for loved ones is not the issue; but the fundamental reason of why we buy and exchange gifts in the first place is the issue. After all, there is something more to this celebration of Christmas (or the Holidays), is there not? Indeed, there is.

I was reminded of this today as my Jesuit Community buried another brother whose life and apostolic service to the Church and to the world were dedicated to this first principle of our faith and religious heritage just mentioned—remembering the reality of Christ. Yet, for many in the present age, this gift of Christ—God incarnate—is a strange notion or idea. But should it be? If this is a relevant and important question for us Christians, should it not also be, for us who subscribe to a project called Catholic legal theory, to address whether Catholic legal theory is an enterprise imbued with the celebration of Christmas and the gift that it is for not only the hereafter but also for our existence in this world and the universe that surrounds it? How do I answer my own question? Let me begin with this.

The other day I took up our colleague and friend’s, Michael Moreland’s, suggestion/recommendation about Jesse Child’s new book and read God’s Traitors, a remarkable book that deals with Catholicism in Elizabethan (the first of that name) times. After devouring this text, I was led to another book of a related topic, Faith and Treason (dealing with Catholicism in the subsequent reign of James I) published by Lady Antonia Fraser in 1996. As a consequence of reading and reflecting upon both texts, I came to realize how our sisters and brothers in Christ—and my own brothers in the Least Society of Jesus—had to navigate a perilous course in a country that was not only Christian but, at one time in its history, indisputably Catholic. I am not suggesting here that the United States or, for that matter the rest of the world, should be a theocracy or a nation with an established church—the Catholic Church in particular. But what I am arguing is that our present day political, economic, and social cultures have lost something toward which Catholic legal theorists can contribute a remedy for the common good—ah, yes, the common good—of each and every one of God’s creatures. But the contribution is more than an academic enterprise—it is a gift of one’s self to one’s friends whoever they may be. And this is a point that periodically emerges in the Childs and Fraser books.

Childs offers an insight about this when she discusses the anti-Catholic legislation of Elizabeth’s Parliaments and refers to a poem penned by a member of a recusant family that mentions a Ciceronian maxim: Honos alit artes—honor nourishes the arts. What if the law with which we of the Mirror of Justice deal with actually nourished and promoted honor—honor being the virtuous life that understands what is the essence of the human person and the role of public norms in guiding all human persons to embrace the search for the common good rather than the politically expedient or, worse, the political objectives of a self-referential elite whose will is strong but whose objective intellect capable of comprehending the intelligible reality that surrounds us is weak or nonexistent at all? I think this is a major role, a vocation, of the Catholic legal theorist not only for today but for every day. Moreover, it is a gift of self that is intended to be given time and again.

If my assumption has merit, might we of this Mirror of Justice community extend a gift for the rest of our fellow creatures in this season of holiday gift-giving—a gift of self and our intellects and labors, such as they are, that offers the hope and promise of Christ in concrete fashion so that, if I may borrow from Lady Fraser’s conclusion, we become a people whose motives are noble and whose actions are upright. In particular, may this gift of one’s self provide the environment for the making of and the living by laws that reflect lives of virtue, and serve as models of human existence that merit duplication by those whom we encounter in this world as we people of God prepare for the next.

A blessed Christmas to you all!


RJA sj


December 24, 2014 in Araujo, Robert | Permalink

An unfortunate verdict in Indiana and more ministerial-exception fights to come

I have blogged before (here and here) about the Herx case, which involves a discrimination lawsuit brought against the Catholic Diocese of Ft. Wayne-South Bend by a Catholic school teacher who was fired after she underwent in vitro fertilization.  In my view, the case (and others like it) should have been dismissed on ministerial-exception grounds.  As I see it, teachers in Catholic parochial schools -- whether or not they "teach religion" and whether or not they are ordained -- are "ministerial" employees for purposes of the constitutional rule.  

Unfortunately, the case was permitted to go to trial and the jury awarded nearly $2 million (more here).  The Diocese, apparently, will appeal and I hope the Seventh Circuit will apply the Court's Hosanna-Tabor decision in a way that is consistent with that decision's rationale and animating concerns. 

December 24, 2014 in Garnett, Rick | Permalink

Perry Dane on "Christmas"

Another re-posting from last Christmas, for those who missed it:

In my view, Prof. Perry Dane (Rutgers-Camden) is one of the more thoughtful and intriguing law-and-religion scholars in the country.  Here's a new piece of his, called "Christmas":

This paper, which is still in a very early form, looks again at the recurring problem of Christmas and the Constitution. Conventional Establishment Clause analysis of Christmas is built on three propositions: First, Christmas is in a sense two holidays: a Christian celebration of the birth of Jesus, and a secular winter holiday. Creches and the like are symbols of the religious Christmas, while trees and Santa Claus are among the trappings of the secular Christmas. Second, government participation in celebrating the secular Christmas is unproblematic. Third, celebrating the religious side of Christmas does risk violating the Constitution, but embedding the religious element in a secular context can mitigate the infirmity. 

Much of the criticism of current doctrine has honed in on the third of these propositions. I want to focus, however, on the premise of a "secular" Christmas on which the first two propositions of the doctrine are built. My argument is that the notion of a secular Christmas, and the assertion that the tree and Santa and so on are secular symbols of that secular Christmas, are both deeply problematic. More specifically, I argue that Santa and the like play a complex, rich, and tension-filled role in the "religious economy" of Christmas, and that we cannot begin to tackle the constitutional problem of Christmas until we unravel that complexity. Santa and the tree, even if they carry little or no propositional content, are "religious capital" - "cultural accessories" to the religious meaning of Christmas. And, paradoxically, they can also, under certain circumstances, take on downright anti-religious meaning. When the government adopts these objects and symbols and practices for itself, the effect is religiously and constitutionally complex. The solution to these problems, however, is itself neither obvious nor straightforward.

Check it out!

December 24, 2014 in Garnett, Rick | Permalink

The Christmas letters of Jean Bethke Elshtain

I posted about this last Christmas Eve, and it seemed worth doing again. John Carlson has a nice reflection, here, about the Christmas letters of Jean Bethke Elshtain (R.I.P.).  

December 24, 2014 in Garnett, Rick | Permalink

"Public Education", properly understood.

"'Public Education' Should Fund Any Education, Not Just Government Run Schools," Brittany Cortona writes.  I agree.  "Public Education" should refer to the end -- i.e., the education of the public -- and not one particular means or delivery mechanism.  Read the whole piece, and learn more about the very important school-choice litigation unfolding in Colorado.

December 24, 2014 in Garnett, Rick | Permalink

St. Thomas More's Prayer for Good Humor

Courtesy of Aleteia:

Grant me, O Lord, good digestion, and also something to digest. 
Grant me a healthy body, and the necessary good humor to maintain it. 
Grant me a simple soul that knows to treasure all that is good 
and that doesn’t frighten easily at the sight of evil, 
but rather finds the means to put things back in their place. 
Give me a soul that knows not boredom, grumblings, sighs and laments, 
nor excess of stress, because of that obstructing thing called “I.” 
Grant me, O Lord, a sense of good humor. 
Allow me the grace to be able to take a joke to discover in life a bit of joy, 
and to be able to share it with others.


December 24, 2014 in Garnett, Rick | Permalink