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.

Thursday, October 27, 2016

A nice interview with Prof. Adrian Vermeule about becoming Catholic

A few months ago, Prof. Adrian Vermeule (Harvard) came into full communion with the Catholic Church.  (He was confirmed at the University of Notre Dame's Log Chapel.)  Here is a really nice interview with Adrian about the journey and decision:   Download Vermeule article  Check it out.

October 27, 2016 in Garnett, Rick | Permalink

Wednesday, October 26, 2016

"Swiss Christian nursing home must allow assisted suicide"

Story here.  A bit:

A Swiss court has ruled that a Christian nursing home must either permit
assisted suicide on its premises or give up its charitable status.

The nursing home, which is run by the Salvation Army, the UK-based
Christian charity, lost a legal challenge to new assisted suicide rules.

The regulations, introduced about a year ago, compel charities caring for
the sick and elderly to offer assisted suicide when a patient or resident
requests it.

The nursing home objected on the grounds that the law violated the core
religious beliefs of the Salvation Army and that it represented an affront
to freedom of conscience.

But the Federal Court rejected the complaint of the home, which is
situated in the canton of Neuchatel, and ruled that individuals have the
right to decide how and when they would like to end their lives.

According to a report on Swiss Radio In English, the judges said the only
way the home could avoid its legal obligations to permit assisted suicide
was to surrender its charitable status. . . .

Expect more of this, and on our side of the Atlantic, too.  The court's basic "move" is one that I think we can expect regulators and legislators to adopt (and activists to demand) in a variety of contexts where religious institutions' religiously motivated practices and commitments conflict with policy, especially in the bioethics and antidiscrimination contexts.

October 26, 2016 in Garnett, Rick | Permalink

Alfred the Great

For those thinking back fondly to the days when a nation's leaders spent time translating Augustine and Boethius, note that Alfred the Great died on this date in 899 (there's a nice short piece on Alfred here by A Clerk of Oxford). Alfred is, of course, one of the great figures in English legal history on account of his compilation of laws in the domboc. For an interesting discussion of Alfred's use of Christian sources in the prologue to his legal code, see this article by Michael Treschow, which ends on this hopeful note:

If Alfred was for the Victorians a mirror or icon of their own self-regard, of their empire, of their civic piety, he is becoming for us a mirror of our suspiciousness, of our mistrust of public virtue and piety, indeed of our disdain of anything that claims to be good. But let us be wary of any easy or hasty reduction of Alfred’s image to an opportunistic, even Machiavellian, guise. This prologue’s public use of piety reads as no mere calculated display. Reverence for the king of Wessex is beside its point. Its real work is to present Scripture that it may search the hearts of its readers and direct them to serve not themselves but live in charity with their neighbour — especially in the practice of public life. It allows that the good of the state is a harmony of love and justice. It allows that the state can seek to be gracious through obedience to basic principles of revealed truth.

October 26, 2016 in Moreland, Michael | Permalink

Glendon on Tradition

For those on MOJ and beyond thinking about tradition and the law, I can't commend to you enough Mary Ann Glendon's fine collection of her own essays, Traditions in Turmoil, published in 2006.

From the Author's Preface: "Nearly all of these essays [] were written when demographic turbulence was at its height...[when] legal, social, and religious [traditions] were in a state akin to which students of complex adaptive systems call 'the edge of chaos.'" And then: "The edge of chaos is a scary place, but it is also charged with potency." More:

As a living tradition moves forward, it is laden with the accumulated accidents and inventions of the men and women who have gone before--a cargo of useful ideas and practices that await development, and a jumble of outworn artifacts that might well be left behind. Future generations will judge whether our own period of stewardship has burdened or enriched their inheritance, whether we have advanced or hindered the conditions for human flourishing. 

The clarifying lens from within which Glendon writes many of the book's essays, that I hope will be brought to bear on the new and important work at the Tradition Project, is that provided by Jesuit philosopher, Bernard Lonergan. Glendon ends the book's Preface with this:

It seems to me that no one has better suggested the spirit in which citizens, scholars, and members of a pilgrim Church should confront the challenges of traditions in turmoil than the philosopher Bernard J. F. Lonergan: "There is bound to be formed a solid right that is determined to live in a world that no longer exists. There is bound to be formed a scattered left, captivated by now this, now that new possibility. But what will count is a perhaps not numerous center; big enough to be at home in both the old and new; and painstaking enough to work out one at a time the traditions to be made." That is the spirit in which I have tried to work, and I hope it is reflected in these essays.

Professor Glendon read Lonergan with the great Father Flanagan at Boston College when she first began teaching at BC Law in the 1980s. The experience deeply influenced Glendon's own uncanny and inspiring ability to distinguish carefully points of progress--"insight"--from within times of decline, and to hold both in her learned and fertile mind simultaneously.  

The first essay of the collection, "Tradition and Creativity in Culture and Law," was the 1992 Erasmus Lecture, published in the November issue of First Things that year. And it's a great place to start. A sneak peak: 

The idea that tradition is antithetical to creativity of the human sort is what I propose to examine and challenge along with its usual underlying assumptions that tradition is necessarily static, and that the essence of creativity is originality. To anyone with a scientific bent, my project will seem to be an exercise in the obvious. For in the history of science, as Stephen Toulmin, Thomas Kuhn, and others have made clear, nearly every great advance has been made by persons (typically, groups of persons) who simultaneously possess two qualities: a thorough grounding in the normal science of their times, and the boldness to make a break with the reigning paradigm within which that normal science takes place. My concern, however, is the progress of antitraditionalism in the human sciences, where what counts as an advance, or creativity, is more contestable, and where many eminent thinkers now devote much of their energy to attacking the traditions that have nourished their various disciplines.


I shall confine my attention here to the field with which I am most familiar, namely the law, though this may vex the spirit of Erasmus, who seems to have had a rather low opinion of lawyers, calling them “among the silliest and most ignorant of men.” Erasmus might have been amazed, however, if he could have known the degree to which lawyers themselves, and especially teachers of lawyers, would one day come to exhibit disdain for their own craft, and to disavow openly the ideals of their traditions. I say tradition s , for, where Americans are concerned, there are three of them involved: the common law tradition that we inherited from England, the tradition of American constitutionalism, and the craft tradition of the profession.

Do read the whole thing. But a jump to the Lonerganian conclusion: 

[T]he fact remains, as Aristotle pointed out long ago, that dialectical reasoning is the only form of reasoning that is of much use in “the realm of human affairs,” where premises are uncertain, but where, though we can’t be sure of being right, it is crucial to keep trying to reach better rather than worse outcomes. It is time for lawyers and philosophers alike to recognize that common law reasoning is an operating model of that dialectical process, and that its modest capacity to guard against, and correct for, bias and arbitrariness is no small thing. Over time, the recurrent, cumulative, and potentially self-correcting processes of experiencing, understanding, and judging enable us to overcome some of our own errors and biases, the errors and biases of our culture, and the errors and biases embedded in the data we receive from those who have gone before us. As Benjamin N. Cardozo once put it, “In the endless process of testing and retesting, there is a constant rejection of the dross.”

And so, by a long and circuitous route, I come back to the proposition with which I began: that human creativity is inescapably dependent on what has gone before. This is not a very remarkable proposition. Perhaps what ought to seem remarkable is only the extent to which so many practitioners of the human sciences seem to want to ignore it.


October 26, 2016 in Bachiochi, Erika | Permalink

Justice Clarence Thomas on the duty not to despair

I've long thought--along with many others--that Justice Clarence Thomas is one of the most under-appreciated Justices in the history of the Supreme Court of the United States.

Lately, his twenty-fifth anniversary of joining the Court has brought forth a range of commentaries. Not all are worth reading for insight into Justice Thomas as much as they are for insight into authors, editors, and their imagined audiences.

Typical of the under-appreciative genre is Jeffrey Toobin's short New Yorker column: Clarence Thomas's Twenty-Five Years Without Footprints. It might have been more revealing of the editors' evident lack of perspective if they headlined it Invisible Justice. But as Ann Althouse explains, this headline is bad enough.

USA Today's story is better and more detailed, though the headline seems somewhat negative: After 25 years, Clarence Thomas still dissents. Most people may think Justice Thomas's persistent dissent a bad thing, but I happen to find it encouraging.

When go along to get along is not an option, the alternative is alienation. A peculiar form of alienation that we risk, and that Justice Thomas's persistence bucks us up against, is the sense that legal reasoning just doesn't matter to the Supreme Court in certain cases. It's the kind of alienation I--and many others--experienced in the months surrounding Obergefell v. Hodges.

This kind of alienation, whether experienced on the right, left, top, or bottom, corrodes our constitutionalism. But Justice Thomas's patient persistence provides a constructive counter-example. 

If you want to understand Clarence Thomas better, a good way to start is by taking his own words seriously. My Grandfather's Son is a great read. But you don't have to wait to get your hands on the book. Just browse on over to the website for one of my favorite podcasts, Conversations with Bill Kristol.

Kristol's conversation with Justice Thomas is worth listening to or viewing. But that can also take time you may not have, in which case you should read the transcript. Here's an exchange that stood out to me as of potential interest to MOJ readers:

KRISTOL: I talk to young people, as you do, and a lot of ones, especially who are more on my side of the political spectrum are sort of depressed these days – and the last term of the Court and what – the constitutional moment seems to have passed, and are we ever going to get back to real constitutionalism, limited government, and a good understanding of the separation of powers and the Constitution in our country? I don’t know. I’m not sure I do a very good job of reassuring them. I do usually cite the dissents that then get vindicated years or decades later, whether it’s Justice Harlan or Justice Scalia or you.

What do you say? Obviously, you’re doing your job as a Justice, so you’re worrying most about getting it right, but are you encouraged, and how do you encourage young people? What is your sort of general view of the current state of constitutional self-government in America? Not so much the Court, but the broader question, you know? You’ve thought a lot about this and spoken a lot —

THOMAS: You know, I don’t know if I’m the – I don’t know. I’m more concerned about other things – the academy, the culture, the state of education.

KRISTOL: Do you feel sometimes that we’re swimming awfully upstream here against awfully big institutions and forces?

THOMAS: I think we are required to swim upstream no matter what it is; I think it’s a matter of principle no matter – My grandfather was that sort of person, that no matter what others were doing or how bad it looked, we had things we were supposed to do.

I think we are required to do what is right despite how bad things look. I don’t know whether or not, I think it was when I was a kid – I’m Catholic, and one of the great sins was to despair. I think that it’s hard to get up in the morning as a despairing person.

You have to be hopeful. You know, I just look around as I was riding to the studio to do this and coming across Pennsylvania Avenue. When I came here in 1979, the prime interest rate in the country was around 20 percent. We were immersed in the Iranian hostage situation. You had inflation that was double digit. It was the era of malaise – I always say “mayonnaise.” I was riding a bus down Pennsylvania Avenue, commuting to Capitol Hill where I worked. Those days Pennsylvania Avenue was open all the way through, and I couldn’t afford to drive a car or anything in.

And the world changes; things change in your life. Was I in a position to despair then? Absolutely. Things weren’t really looking good. But you are obligated not to despair. Now, about our country? Yeah, things may not look good, but we are obligated not to despair. Do I know what the outcome is going to be? No.

Do I know that we are going to be vindicated? No. But that’s not why you do it. You don’t do it to necessarily persuade, to feel that you’re going to persuade other people – you do it because it’s right. I think we are obligated to do that. Do I hope that, at some point, it becomes the, sort of the prevailing view? Yes. But I have no guarantee, and I don’t do it on the condition that I win.

October 26, 2016 in Walsh, Kevin | Permalink

Tuesday, October 25, 2016

Call for Papers: "Public Life and Religious Diversity"

This conference, scheduled for Fall 2017 at Oxford, should be of interest to MOJ readers.  I hope some MOJ bloggers and readers will submit proposals!

Panels – call for papers

We invite proposals for presentations in the following panel sessions:

  • Andrew March, chair: Private and public ethics. Possible topics include: controversies about forms of establishment, the limits of legislation, exemptions for economic, cultural, and social institutions.

  • Stephen Macedo, chair: Religious diversity and education. Possible topics include: controversies about separation and integration in education, curriculum debates, the nature and limits of public authority, and student and parental freedom.

  • Lisa Fishbayn and Sylvia Neil, chair and discussant: Gender, sexuality and religion. Possible topics include: controversies over reproductive rights, marriage, sexual culture, religious feminisms, religious justifications of discrimination.

  • Jocelyn Maclure, chair: Accommodation of religious diversity in democratic polities. Possible topics include: religion as justification of legislation, exemptions, legal recognition; questions of democratic majoritarianism.

We also welcome proposals for papers that aim to explore new research avenues related to religious diversity and public life. Possible topics include: the ethics and politics of interfaith relations; concepts of religious moderation, extremism, fundamentalism, radicalization; public ethics in contexts of antagonism or separation

October 25, 2016 in Garnett, Rick | Permalink

The Martyrs of the English Reformation

On this date in 1970, Paul VI canonized 40 martyrs of the English Reformation, including Anne Line, 10 Jesuits, and an Augustinian friar (John Stone). Among the Jesuit martyrs are Edmund Campion, Henry Walpole (a lawyer who appears to have been brought to conversion by witnessing the execution of Campion in 1581), Robert Southwell, and Thomas Garnet. John Finnis and Patrick Martin have argued ("Another Turn for the Turtle," Times Literary Supplement, April 18, 2003) that the martyrdom of Line inspired Shakespeare's poem "The Phoenix and Turtle." A bit from their piece:

[Henry] Garnet, the Jesuit superior in England, reported Ann’s execution to Rome with priestly words of consolation and edification. This poem’s way of proceeding is different. More reticent, artificed, opaque and resonant than our discussion may suggest, it makes no display of Catholic belief, or even of common Christian hope for life beyond death: there is resting “to eternity”. But the poem’s Reason, while insistent that Love—pre-eminent to Jesuit teachers, as Faith to the Protestant—“hath reason” even where “reason hath none”, does not permit itself Garnet’s confidence: that Ann Line died a saint to (or through) whom, not for whom, one should sigh one’s prayers. “Death is now the Phoenix’ nest”: no retailing here of pagan-Christian phoenix allegories of rebirth and immortality. There is loss which, though not annihilating, is irreversible: from “now” on, “Truth may seem but cannot be . . . Truth and beauty buried be”.

And in a recent review in the TLS by Anna Whitelock of a book by John Guy on the later years of the reign of Elizabeth I, Whitelock notes the role of the Queen herself in all of this--gruesome reading, but a caution against whitewashing English history:

For many readers it will doubtless be Guy’s vivid account of Elizabeth’s cruel methods against Catholics or suspected traitors and the climate of terror amid economic crisis and political and social discontent that is most striking and unfamiliar. Guy convincingly argues that Elizabeth sanctioned, and even encouraged, the activities of the notorious Catholic-hunter and rackmaster Richard Topcliffe, who tortured suspects in a “strong room” in his house in Westminster. Indeed, “strong archival evidence exists that she knew him personally, thoroughly approved of his activities and received reports directly from him rather than through intermediaries”. The smoking gun which proves her acquiescence in some of Topcliffe’s worst atrocities lies buried in Burghley’s papers. When the Jesuit priest Robert Southwell was arrested in 1592, Topcliffe wrote to tell Elizabeth how the prisoner was shackled to the wall in his “strong chamber” and had responded to interrogation “foully and suspiciously”. Topcliffe sought the Queen’s permission to “enforce” the prisoner “to answer truly and directly”, by stretching him out against the wall using “hand gyves” (iron gauntlets). Although the Queen’s reply to Topcliffe’s letter was not written down, the fact that he proceeded with the torture methods he had described and with no further warrant as the law required, is in Guy’s view “chilling proof that she gave her consent in the full knowledge of what he was about to do. Topcliffe would not have dared to act as he did had the Queen forbidden it, and she was far from squeamish”. Moreover, when, after a two and a half years of solitary confinement in the Tower of London, Robert Southwell was finally brought to the gallows at Tyburn, Elizabeth specifically ordered that he be forced to endure extra suffering, and after being hanged, Southwell should be cut down while fully conscious and disembowelled. This was no one-off. Ten years earlier, she had issued similar orders when William Parry, a failed assassin, made the journey to Tyburn. After just one swing of the rope he was cut down from the gallows on Elizabeth’s order and while he was still fully conscious, had his heart and bowels ripped from his body with a meat cleaver. Finally, after he had let out a “great groan”, his head and limbs were severed from the corpse and the head set on London Bridge as a warning to others of the “terrible price of treason”. So much for Good Queen Bess.

October 25, 2016 in Moreland, Michael | Permalink

Tradition as part of what it means to be fully human

Tradition is difficult to pin down. The tension between tradition and reason that Michael and Marc have probed a bit in their recent posts is just one of many tensions between tradition and something else. Consider, for example, the tension between tradition and text; or tradition and innovation.

Also, tradition might be thought to be valuable for different purposes. For instance, we might value tradition because it provides access to an original source of revelation, say, or something else that is to be handed down unchanged. Or we might value tradition, instead, because what has survived to be passed along has features that have enabled it to stand the test of time. We might not know just what those features are while still attributing a tradition's endurance to beneficial features iwe don't fully appreciate (like the practice of leaving rocks in fields that Marc mentioned).

During the first meeting of the Tradition Project, one of the contributions to the conversation over these various features of tradition that I found most helpful was the identification of tradition as part of what it means to be human. We are all born into a world we don't and can't fully understand. We are all going to die. And we are all trying to live a meaningful life in between our birth and our death. Tradition helps us to do that. And it does so in ways that reason alone cannot. 

This organizing idea of tradition as an aspect of the human condition raises the question of what it means to be human. One of my takeaways from the Tradition Project is that to be human is to be both more and less than we think we are when we reason. Yes, we have reason. But we are also animals, on the one hand, and open to transcendence, on the other. As sensual, rational, and spiritual beings, participation in traditions is part of what it means to live a fully human life.

October 25, 2016 in Walsh, Kevin | Permalink

Remembering Fr. Araujo

This past weekend marked the first anniversary of the death of our friend and colleague, Fr. Robert Araujo.   I'm pleased to report that an edited volume of essays -- Priests, Lawyers, and Scholars -- about his work and the themes he explored is in progress.  Stay tuned!


October 25, 2016 in Garnett, Rick | Permalink

Monday, October 24, 2016

A Thought For Michael on Tradition and Reason

Thanks to Rick and Michael for their posts about our gathering this past weekend. It is certainly my and Mark's hope that the conference will produce fruitful reflection about the various ways in which tradition can be conceptualized and about how it interacts with law and politics.

Just one brief thought in reaction to Michael's fine post about tradition and reason. I agree with him that the pitting of reason and tradition against one another is a mistake, but a very common one. The more difficult question is how best to describe the relationship between them. Here's something I wrote on this question a while back (in preparation for the conference, and for just the question Michael poses), but which is much more in the nature of a speculation than an answer: 

If I dress with a coat and tie every time I teach a class, that is not enough for my sartorial selections to be traditional. It is still not enough if it can be shown empirically that others before and after me have made the same choices. What makes the choice traditional is the social or cultural meaning of my dressing this way. The choice of dress evinces a social awareness of continuity with the past and is pursued intentionally, because of some normative power within the long-standing practice (because dressing with a coat and tie is neat, or because it is professional, or because it is elegant, or because predecessors whom I admire dressed in this fashion, and so on [MOD edit: or because the choice signals something to students about the authority of those past choices]). I dress in this way intentionally to retransmit the past to the present because I believe there is value both in the choices of the past and in their continuity. This self-consciously and normatively chronic quality is probably not the only element comprising the traditionalist view; but it is an important one.

Some might say that the existence of any substantive reasons deprives the practice of dressing with a coat and tie of its traditionalism, because traditionalism implies that a belief or practice is transmitted mindlessly or without any reason. But this strikes me as altogether wrong. In an old essay, Samuel Coleman once gave the following example:

Turkish farmers leave the stones on their cultivated fields. When asked why, they say that is the way it has always been done and that it is better that way. In point of fact, it is. When U.N. agronomists, after considerable exhortation, persuaded some young Turks to remove the stones from their fields, their crops suffered. Apparently the stones help condense and retain the dew in the arid climate, but this was unknown. It may have been known to the originators of the custom, for there is evidence that it was known in biblical times. This apparent fact had been forgotten, while the practice persisted.

Was the practice of laying stones not a tradition when the reason for it was known and passed on? Did it become a tradition only when the reason was forgotten? Is it now no longer a tradition because of the adventitious intervention of the U.N.? The practice itself, as understood by the practitioners of it, is unchanged. No, says Coleman, “we would avoid all sorts of muddle if we did not speak of traditions being transmuted into non-traditions by confirmation of the proposition believed or the practice followed.” There can be, and often is, reason in tradition.

October 24, 2016 in DeGirolami, Marc | Permalink