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.

Saturday, February 28, 2015

Randy Boyagoda on Fr. Neuhaus

Prof. Randy Boyagoda is the author of a new biography of Fr. Richard John Neuhaus, A Life in the Public Square.  I'm excited to read it.  Here is a bit of a preview, which ran the other day in the Wall Street Journal.   A taste:

Neuhaus . . . affirmed the core premise of Enlightenment political thought: the differentiation of public authority into separate, autonomous spheres that valued individual rights.

He argued that the strongest support for these rights came from the Judeo-Christian tradition’s foundational conviction: We are made in the image of God. Demanding absolute obedience to political dictates, whether in the name of God or something else, would undo centuries of political progress, and goes against God’s own gift of free will to every human person.

February 28, 2015 in Garnett, Rick | Permalink

Remembering Prof. Charles Rice

Richard beat me to it, but my friend and colleague Prof. Charles Rice -- a deeply good and generous man -- passed away this week.  It's almost as if this Notre Dame Law School legend -- he has probably taught half of our living alumni -- ducked out of the side exit, to avoid making a big scene, overshadowed in the press (though not, I feel confident, among the Heavenly Host) by Fr. Hesburgh's death.   (Learn more about his work and  life here.)

I first encountered Notre Dame through Charlie.  In the 1970s, my father -- then an Alaska lawyer -- attended a seminar at which Charlie presented on defending pro-life protesters.  Years later, when I was thinking about law school, Charlie contacted me (I've always assumed at my dad's suggestion) and was (as always) generous and helpful.  Later, when I started thinking about the legal academy, some of the most important people who shaped my decision were Charlie and his son-in-law, Seamus Hasson, founder of the Becket Fund and all-around religious-freedom hero.  

Charlie was, of course, a titan in the pro-life movement, both locally and nationally.  He was also a teacher beloved by many thousands -- some of whom agreed with his politics, many of whom I am sure did not -- who would always go the extra mile to help a student or graduate in any way.  He cared much more about decency and solidarity than about prestige and praise.  He welcomed me to Notre Dame and supported and encouraged me when I was getting started.  He wrote several books and piles of articles for a range of audiences.  Often overlooked, unfortunately, is a really good (and prescient!) book he did more than 50 years ago, The Freedom of Association.He was a boxer and a Marine.  He helped build a wonderful family.  God bless him.    

February 28, 2015 in Garnett, Rick | Permalink

Fr. Hesburgh on Newman, universities, Catholic universities, and theology

It's really hard to imagine putting the point better.  And, talk about timely!  Here's Fr. Ted, more than 50 years ago:

Someone asked me recently: "What is the great problem for the Catholic university in our modem pluralistic society?" I was obliged to answer that the modernCatholic university faces a dual problem. First, because everything in a pluralistic society tends to become homogenized, the Catholic university has the temptation to become like all other universities, with theology and philosophy attached to the academic body like a kind of vermiform appendix, a vestigial remnant, neither useful nor decorative, a relic of the past. If this happens, the Catholic university may indeed become a great university, but it will not be a Catholic university.

The second problem involves understanding that while our society is called religiously pluralistic, it is in fact, and more realistically, secularistic—with theology and philosophy relegated to a position of neglect or, worse, irrelevance. Against this strong tide, the Catholic university must demonstrate that all the human problems which it studies are at base philosophical and theological, since they relate ultimately to the nature and destiny of man. The Catholic university must strive mightily to understand the philosophical and theological dimensions of the modern problems that face man today, and once these dimensions are understood, it must show the relevance of the philosophical and theological approach if adequate solutions are to be found for these problems.


February 28, 2015 in Garnett, Rick | Permalink

A personal perspective on the place of theology in the core curriculum at Notre Dame

I second Rick's evaluations of the comments on the importance of theology in the core curriculum at Notre Dame by Cyril O'Regan ("excellent") and Michael Sean Winters ("very thoughtful and wide-ranging"). I'll add John Cavadini's essay (linked by Winters): "Why Study God? The Role of Theology at a Catholic University." If one accepts Cavadini's description of the significance of a theology department in a university, it should follow that at least one theology course must be part of the required course of study if any course is to part of a required course of study. Cavadini writes: 

[A] university community that accepts in its midst a theology department is not different simply because it accepts one more discipline than secular universities do. In accepting that discipline, a university isn’t just adding another element to the paradigm already in place at secular universities; it is accepting an altogether different paradigm of the intellectual life—a paradigm of intellectual culture as a dialectic between faith and reason, to use the traditional expression. Having a theology department means accepting a commitment to the intellectual life as oriented toward an “understanding” of something that integrates and transcends all the disciplines. Such an understanding keeps each discipline from closing in on itself and proceeding as if the truths it discovers were incommensurable with the truths discovered by other disciplines. It means openness to a conversation that necessarily transcends each discipline but is not merely “interdisciplinary.” If the disciplines converge at some point, it must be at a point “above” them all, in a discipline that has as its explicit object of study the mystery that transcends all other objects of study. Otherwise one must either force nondisciplinary solutions of questions onto the disciplines (e.g., claiming that faith is an adequate answer to scientific questions), or declare that knowledge is hopelessly fragmented into incommensurate disciplinary truths.

For an intellectual community operating within the paradigm Cavadini describes, it is hard to know what required courses--if any are to be required--should take precedence over courses in the discipline that "has as its explicit object of study the mystery that transcends all other objects of study."

On this subject, I speak from some personal experience, although not the experience of a student who took a required undergraduate course in theology. I did not attend a Catholic university as an undergraduate. As I approached the end of my undergraduate studies, however, I realized something important had been missing from my academic studies. And I sought to remedy that through graduate work in theology.

As an undergraduate at Dartmouth, I was fortunate to be part of a vibrant Catholic community at Aquinas House, where I could learn and grow exposed to the intellectual, personal, and spiritual guidance of chaplains, professors, and peers. But I had nothing in my formal coursework in which the professor by disciplinary commitment was committed to helping me to ask and answer questions about God. I did find professors who could and did help me in that regard (and it helped beyond measure that our lead chaplain had a philosophy Ph.D.), but such help was extra-curricular.

It was not until I pursued graduate study in theology at Notre Dame that "faith seeking understanding" was part of--indeed, precisely the reason for--the formal academic curriculum. That year of study was among the most formative years of intellectual development for me.  And it almost didn't happen. I was originally denied admission to Notre Dame's program for failure to satisfy the prerequisite requirements of a certain number of "religion" courses. I sought (and was eventually able) to use a combination of courses from other departments in which I had studied Aristotle and Aquinas (among others) to satisfy the prerequisites. Those courses seemed more foundational to the study of Catholic theology, in any event, than many of the offerings in Dartmouth's religion department. And my experience bore that out. With the exception of two religion courses that were atypical in various ways for the religion department (one on Augustine and another on Aquinas), my undergraduate courses in the philosophy, government, and history departments were, indeed, better preparation for the study of theology.

My theology courses were stocked full of valuable propositional content, but I found that their primary value in relationship to my studies more generally was to supply new horizons and new perspectives on everything else. With God no longer missing from the foreground of my academic study, matters appeared differently. The differences are difficult for me to describe precisely, but Cavadini's explanation of how "[a]n undergraduate course in theology is essentially different from, say, an undergraduate course in history" illustrates how such differences emerge: 

Why should undergraduates be required to take courses in theology? An undergraduate course in theology is essentially different from, say, an undergraduate course in history. Even if both courses use some of the same texts, they will use them in different ways. The history course will examine the circumstances of their production, the culture behind them, the social situation for which they provide evidence. But the point of a theology course is to find out about God, in and through the properly disciplined study of these texts. If a student asks a question about God in a history class, the instructor is free to answer, “That’s not a relevant question in this class” (or, as it was put to me somewhat indecorously in a class at the non-Catholic institution where I studied as an undergraduate, “Please leave your theological baggage at the door”). But for a theology instructor to reply in the same way would be to violate the very identity of one’s discipline. Students are right to ask about God, and all matters related to God, in a theology class, where the question is not finally “What influences were operating in Julian of Norwich’s social setting that caused her to have visions?” or “What did Thomas Aquinas think about God?”—though such questions are certainly and necessarily involved—but rather “How has this study helped me think about God and God’s self-revelation?”

There are undoubtedly many considerations that go into the determination of whether to have required courses, and what to require. But at a Catholic university, it seems to me that the core of a case for required theology coursework goes something like this: Undergraduates have theological questions. Theological questions deserve theological answers. At a Catholic university, those questions and answers can and should be addressed with theological discipline.

February 28, 2015 in Walsh, Kevin | Permalink

Friday, February 27, 2015

Professor Charles E. Rice, RIP

Professor Charles E. Rice, pro-life champion and long-time professor of law at Notre Dame Law School,  died on Wednesday. Here is a link to a book review I did of one of Charlie’s most recent books.  I wrote in that review--

"Charlie Rice is one of a kind. He has had a distinguished academic career, mostly at Notre Dame Law School; he is now Professor Emeritus of Law at Notre Dame. He has been a beloved teacher and mentor to thousands of Notre Dame students since he joined the law faculty there in 1969. He has authored many scholarly books and articles. He was the long-time co-editor of the American Journal of Jurisprudence, perhaps the leading scholarly journal devoted to the natural law. He has been active in the political arena. He co-founded the New York Conservative Party and has served as a consultant to various government agencies. He has also been an activist, particularly on pro-life issues.

This service on behalf of the pro-life cause has taken many forms. Perhaps the most important has been his effort to clearly articulate and defend the teachings of the Catholic Church on pro-life issues. He has done so in scholarly books. But perhaps equally important have been his efforts to defend Church teaching on issues such as contraception, abortion, assisted suicide, and the death penalty in more popular venues. He has written innumerable short essays and delivered countless speeches throughout the country on these topics."  

Charlie was a loyal son of the Church who will be missed terribly by those who knew him. 

Eternal rest grant unto him,  O Lord, and let perpetual light shine upon him. May the souls of the faithful departed, through the mercy of God, rest in peace. Amen.

February 27, 2015 in Myers, Richard | Permalink

Fr. Theodore M. Hesburgh, R.I.P.

Not just my own University of Notre Dame, but also American higher education and, in many ways, the country has lost a truly great and really good man, "Fr. Ted" Hesburgh.  You can learn a lot more about his work and life here.   And, the Washington Post's obituary is here.

Fr. Hesburgh was retired by the time I arrived at Notre Dame, but I did have the chance to meet and talk with him several times, including in connection with the University's education-reform efforts.  I remember him expressing surprise, and a bit of irritation, when I told him back in 2000 that vouchers and school-choice were still controversial and politically challenging.  "I thought L.B.J. and I took care of that back in 1965!", he said.  "There are a few details still being worked out," I assured him.  God bless Fr. Ted.

February 27, 2015 in Garnett, Rick | Permalink

"mailed irregularly"

Readers will recall Cardinal Kasper's rank racism on display at the Synod last fall.  The Cardinal outright denied that he'd engaged in racial stereotyping of the Church in Africa, but the recording of his vicious words gave the lie to His Eminence's denial.  Are we enlightened moderns comfortable with Cardinals who lie in public, especially about matters of great moral magnitude?   

Be that as it may, things just keep getting richer at Rome.  Now, it seems, Cardinal Baldiserri, general secretary of the Synod of Bishops, ordered the theft of books sent to participants in the Synod last fall.  The story is here. The Cardinal actually admits that the books were seized, and he attempts to justify their seizure on the ground that they were "mailed irregularly."  Pleading in the alternative, His Eminence also avers that the books' reaching the hands of their intended recipients would have "interfere[d] with the Synod," which is just what one would fear from a book titled Remaining in the Truth of Christ.  On the issue of truth, keep in mind that Synod's mid-term relatio was apparently drafted in advance of the "open" debates it was alleged to relate.  That's just how Pope Francis's "God of surprises" works.

Who will continue to defend the illusion of a climate of "openness" in the Church bequeathed to us by the Second Vatican Council and the clergy and hierarchy shaped by its "spirit"?


February 27, 2015 in Brennan, Patrick | Permalink

Charles Hammond on the Supreme Court's attention to "policy & expediency" (1827)

Lest anyone lamenting the state of affairs that now persists in constitutional adjudication at the Supreme Court think that we just need return to an earlier, purer time (and one also without law clerks given to verbosity), these 1827 reflections by Charles Hammond (occasioned by Ogden v. Saunders) may supply something of a corrective:

I wish to detract nothing from the high reputation of the judges of the Supreme court, either as men or as lawyers. I must, however, be permitted to express my opinion, that they have run into some very mischievous errors. One is the deep admixture of political expediency, which is infused into and pervades many of their decisions, especially in expounding the constitution. It was once a leading axiom, that justice was blind as to every thing, but the case immediately before her. She could neither see parties, nor look to future consequences. In the Supreme Court this axiom is not regarded. Justices there look with eagle eyes to the parties in the cause, and to the connection between the case to be adjudicated, and its most remote, and often improbable bearings upon the same, or other parties in different situations. Thus, in attempting to shape a decision in one case, so as to quadrate with all possible cases, policy & expediency become the principal topics of examination. And a judicial decision is made to bear a strong analogy to legislative enactment.

Another of these errors is the substitution of an elaborate train of reasoning, for brief and explicit decision. This is closely connected with the first error, and in a good degree originates in it. When a proposition is laid down, and either narrowed or extended with a view to remote and merely supposable consequences, all these must be explained. The probability that they may arise, the evils they may bring with them, the indispensable necessity of obviating these anticipated evils, must all be made out. Thus a legal opinion, instead of deciding the case in hand, is made to resemble the thesis of a student, and consists of hypothesis and inference, spreading over an almost interminable surface.

Charles Hammond, "Insolvent Laws," Cincinnati Gazette, March 27, 1827

February 27, 2015 in Walsh, Kevin | Permalink

Thursday, February 26, 2015

A Notre Dame Fumble

A sober and sobering analysis of Notre Dame's decision to grant benefits to same-sex partners, by three of the University's most distinguished scholars, John Finnis, Gerard V. Bradley, and Daniel Philpott.  The bottom line:

"If Catholic institutions extend benefits to same-sex couples, then our era will not only be historic because of the civil power’s endorsement of immoral sex. It will also turn out to be a historic moment in the extensive de-Catholicization of many institutions. It is worth stressing again: structural sin is difficult to contain. This would be a destructive loss made possible by these institutions’ own choice—their unforced, unnecessary, unjustified, and irresponsible choice—to treat same-sex couplings as marital simply because the civil power and the couples in question declared them so."

Read the entire statement:


February 26, 2015 | Permalink

Winters on theology requirements and Catholic universities

A few days ago, I linked to an excellent presentation by my colleague, Cyril O'Regan, on the place of theology in a Catholic university.   (Like O'Regan, I believe strongly that Notre Dame -- and other Catholic universities -- should not only continue with a meaningful Theology (not "religious studies" or even "Catholic studies") requirement but should, indeed, deepen and enrich such a requirement.)

At Distinctly Catholic, Michael Sean Winters has posted a very thoughtful and wide-ranging three-part series on this matter.  It's well worth a read by anyone interested in universities, Theology, and, well, life.   Among other things, he contends that "removing theology from that core curriculum not only endangers the other sciences, which are then invited to fill its gap with intellectual tools ill suited for the task, but that I fear what happens to a culture in which theology, philosophy and the humanities are driven to the sidelines by our cultural fascination with science and technique. If we do not school our young people in the humanities, theology and philosophy, they will never know how to respond to desire and never lift love beyond the sentimental."

February 26, 2015 in Garnett, Rick | Permalink