Mirror of Justice

Tradition and Reason

I was among the participants in the inaugural meeting this past weekend of the Tradition Project sponsored by the Center for Law and Religion at St. John’s University School of Law (with thanks to the hard work and hospitality of Mark Movsesian and Marc DeGirolami). It was a rich conversation over a couple of days on the place of tradition in law and politics, both in our formal sessions and in our social gatherings. A few initial thoughts about the project, with more to come as I continue to think about what we discussed.

One topic I kept coming back to was the supposed dichotomy (or at least tension) between “tradition” and “reason” one encounters in discussions of tradition (recalling Edmund Burke’s line about “wisdom without reflection”). On a crude formulation of this view, one either does “what has always been done” in a reflexively deferential way or subjects all decisions to a hard, calculating test of reason. That seems to me a poor way to understand the possible place of tradition in law.

The better view, I think, is to appreciate that rationality (including legal reasoning) is inescapably embedded in a tradition, even when the “tradition” is an emancipation from tradition itself. In the discussion I moderated on the American religious tradition, we read, among other things, pieces by Nathan Hatch and John McGreevy illustrating the ways in which American Christianity has a long tradition of rejecting certain forms of tradition (not least Catholicism) and placing an emphasis on “thinking for oneself.” This, in turn, has shaped in historically complex ways how the American religious, political, and legal traditions interact.

I’ve mentioned before (here) how much I think John Henry Newman’s treatment of tradition and argument might help us tackle some of these problems. Apart from straightforward demonstrations of, say, mathematics and logic, we come to arguments with a background constellation of beliefs and practices—a “tradition.” Achieving clarity about the traditions (even if one of emancipation from tradition) we bring to legal arguments is an important first step that the Tradition Project has undertaken.

"The Tradition Project" Meeting

On Thursday and Friday, I had the pleasure and privilege of participating in a roundtable conference kicking off "The Tradition Project" (more information about the project is available here and here), which is a research project of the Center for Law and Religion at St. John's University and is being coordinated by MOJ-friend Prof. Mark Movsesian and our own Marc DeGirolami.  

What a treat!  For other reports on this gathering, see Paul Horwitz's post at Prawfsblawg and Rod Dreher's detailed reports at his own blog (here and here).  There were (in addition to a keynote lecture by Prof. Michael McConnell) a series of Liberty-Fund-type discussions on, e.g., the idea of "tradition," the American religious tradition, the American political tradition, tradition and the common law, and tradition and the Constitution.

For me, flying home from the event, two questions kept re-presenting themselves:  First, is "tradition" -- or, more accurately, is a "tradition" -- something that we inherit and pass on, or something that we, in a sense, "inhabit" -- is it an heirloom, or the air we breathe?  Second, do traditions have authority (and if so, why?) or is more that they are valuable and useful resources, that would be foolish to turn down absent some good reasons for thinking they are not, for some reason or in a particular case, valuable and useful?

Other MOJ-ers were at the gathering, and I'll look forward to their thoughts! 

Lyman Johnson on corporate legal theory

At the Washington & Lee symposium honoring his work, Lyman Johnson offered a luncheon keynote reflecting on what he found when he entered the world of corporate law teaching thirty years ago. Corporate law was experiencing enormous upheaval, particularly via the hostile corporate takeover movement.  This movement received the support of the Chicago law-and-economics school, a reductionist interpretation that drained the corporate institution of its humanity and left it as a nexus of contracts.  This view did not account for real harms to employees, local communities, and others.  The Delaware judiciary, unlike federal actors, could not avoid weighing in, and the judges used traditional tools (including fiduciary duties) to stabilize the corporate landscape.  Lyman has spent much of his career explaining, teaching, and criticizing these materials.

His scholarship is premised on the belief that people everywhere crave meaningful work as a key element of human flourishing.  In his remarks, he highlighted ongoing themes of his scholarship, including corporate purpose and the relationship of religious faith to corporate law.  He believes that a pluralistic approach to corporate purpose is preferable to the economically reductionist view of shareholder wealth maximization.  He has helped point out that shareholder wealth maximization is not legally required.  Directors must enhance monetary goals for the purpose of benefiting shareholders, but that is not maximization. We should favor a diverse business ecosystem over a business monoculture.  This debate remains crucial, as reflected by a Wells Fargo employee's recent lament that the company's culture was "soul crushing."

Lyman wondered why criticism of corporations comes primarily from the left.  Conservatives (of which he is one) should care deeply about corporate culture and the elevation of profit over other considerations.  At the corporate theory level, people are regarded simplistically as individuals, not as fully formed persons who can behave sacrificially, not just selfishly.  There is a profound dissonance between what we expect of ourselves in life generally and what is demanded in business.  The belief in a shareholder wealth maximization norm has a prescriptive and pedagogical function, shaping corporate culture in powerful ways as rampant self-aggrandizement is rewarded.

The dominant corporate law paradigm does not pay much attention to the corporate body in favor of focusing only on shareholders and directors.  He believes we need to reclaim the corporation itself as a subject of study for corporate law.  Like other groups, corporations can have commitments that are not equivalent to the commitments of its individual members.  The corporation should be respected as a distinct person.  It would be helpful to have a rule requiring the corporation to state its purpose clearly, providing an understanding to all stakeholders of its corporate identity.

He closed by underscoring the value of collaboration in our work, praising the contributions of his friend and frequent coauthor, David Millon.

Corporate Governance and Purpose at Washington & Lee

Today I'm at Washington & Lee for a corporate law symposium in tribute to the scholarship of David Millon and (my St. Thomas colleague) Lyman Johnson.   Both Lyman and David have together expanded our understanding of corporate purpose and social responsibility, and Lyman especially has done tremendous work exploring the religious dimension of corporate law (a subject I'll explore this afternoon).  The opening panel addresses theoretical perspectives on the corporation.

Matt Bodie (St. Louis U Law) kicked things off by recounting how Lyman and David have created a countervailing ethos to the dominant shareholder primacy theory, focusing more on norms than on straight law.  They keep posing the question, what norms should be operative when we think about the corporation?  Matt wants us to move beyond norms and think about real shifts in power within the corporation, giving employees some of the traditional rights of corporate governance.  Shareholder primary is based on more than a norm -- it's a function of power given that shareholders have voting rights, so a stakeholder theory grounded in norms rather than power won't go very far.  Neither labor law nor contract are mechanisms by which employees will participate meaningfully in corporate governance -- e.g., voting rights, board participation. He also suggests that employers should owe certain fiduciary duties to employees.

Eric Orts (Wharton) expressed gratitude for Lyman and David serving as champions of humanism in the corporate law field and alerting us to the dangers of adhering to a single outlook (economics).  He explained how David's work helped bring attention to the wealth distribution effects of corporate law -- we cannot focus solely on its wealth maximization effects.  David has also argued that limited liability acts as a kind of subsidy to corporations, which raises questions about the corporation's contributions to society.

Alan Palmiter (Wake Forest Law) presented his paper, "Corporate Governance as Moral Judgment."  Science tells us that we have no idea how we make moral judgments; such judgments are not based on rationality.  As Lyman and David have encouraged, socially responsible investment and boards' focus on sustainability are increasing, but changes are likely not induced by rational arguments.  We make moral judgments instinctively and emotionally, then our reasoning is motivated by those judgments.  As Jonathan Heidt argues, intuitions come first, strategic reasoning second. So how do we shift corporate focus?  Perhaps by shifting perceptions of risk, adding moral vectors (e.g., caring or sacred), and introducing moral modelers.

Leo Strine (Chief Justice, Delaware Supreme Court), citing Berle and Orwell, noted that, if we want the world to be what we want it to be, we have to be clear-eyed about what it is. He objects to Hobby Lobby and Citizens United as bad corporate law decisions that do not do anything to alter the existing concentration of power with equity holders. He respects the consciences of Hobby Lobby's owners, but not to the extent that they should be empowered to override the publicly mandated benefit packages of their employees. He encourages us to think about power.  When we cite companies like Hobby Lobby and Cracker Barrel, we're still supporting the maximization of the interests of equity holders -- we're not broadening traditional corporate law to consider other stakeholders.  The money that is in the system makes it very difficult to address important externalities through regulation. If we want to change the world of corporate law, we need to do more than raise the consciousness of independent directors; we need to push for real solutions.  E.g., he's a fan of statutes creating benefit corporations. 

Don't forget: You can follow MOJ on Twitter!

Why settle for just the blog when you can join the MOJ tweeps, too!  

On the Wikileaks "Catholic Spring" emails

As MOJ readers probably know, among the DNC emails hacked and leaked by Wikileaks (story here and here and here) are some exchanges among Clinton insiders that, among other things, call for a "Catholic Spring" and that express pretty clear disdain for "conservative" Catholics.  Our own Robby George commented on these exchanges, in the Wall Street Journal, here.

A number of politically-left-leaning Catholics have pushed back against the idea that there's anything particularly troubling or anti-Catholic about these emails, including Michael Sean Winters (here), Anthony Annett (here), E.J. Dionne (here), and -- one of the participants in the exchange -- John Halpin (here).  These and other commentators contend that, for example, the emails " tell a far more interesting tale about the struggles inside the Catholic Church in the period before the ascendancy of Pope Francis" (Dionne), that they simply reflect a "react[ion] in a private email to the arguments of leading conservatives who often misuse Catholicism to defend their agenda" (Halpin), that their discussion of a "Catholic Spring" should be seen as highlighting "the genuine need for a corrective balance" and "a call for something very much like the agenda of Pope Francis" (Annett), and that one participant's charge that "the right-wing attempt to co-opt Catholicism for the Republican Party [has] been a bastardization of the faith" is, well, right.

Certainly, it is not news that politically-left-leaning Catholics believe that politically-right-leaning Catholics are focusing too much on abortion at the expense of other issues, are insufficiently critical of the Republican Party (or insufficiently attached to the Democratic Party), are "co-opting" the Catholic Social Tradition and various bishops for "right-wing" purposes, etc.  In my view, these beliefs are unwarranted (or, at least, held with a confidence and fervor that the facts do not justify).  Nor, really, is it news that political-left operatives and activists like the people involved in this email exchange regard many of the teachings and practices of the Catholic Church with bemusement, if not contempt.  (See, e.g., Halpin: "They must be attracted to the . . . severely backwards gender relations.")  It's not news that Catholics are divided not only about the political implications of the faith but, more fundamentally, about what (and who decides what) "the Faith" is.

So, since it's all old news, maybe Winters is right that the "Catholic email scandal is no scandal" (indeed, maybe it's a no-doubt-unintended compliment!).  In my view, though, it should be troubling -- to "progressive" Catholics as well as others -- that political operatives like John Podesta, who has been associated with Clinton campaigns and administrations for decades, admits that his organization set up (with funding from the Koch Brothers . . . I mean, George Soros) groups with the purpose of promoting a "revolution" -- a "Catholic Spring" -- "in which Catholics themselves demand the end of a middle ages dictatorship and the beginning of a little democracy and respect for gender equality in the Catholic church."  This is not a call for dialogue among Catholics about how best to live out the faith; it's strategy-and-tactics about how to co-opt and marginalize an opposing force.

This is not, contrary to the suggestions of some, simply a call for the full spectrum of the Catholic Social Tradition to be proposed to our politics, in the public square.  The exchange was not just an intra-Catholic discussion about the possibility of changes in Church practices under Pope Francis, or a thoughtful corrective to the selective misuse or blinkered use by some "conservatives" of Catholic Social Teaching.  The nature of the "revolution" to be hoped for, funded, and supported is to make the Catholic Church more like the Center for American Progress imagines itself to be (I say "imagined" because contemporary progressives' attachment to "democracy" is, well, complicated.)   

Just as a reminder:  Here's Sandy Newman, sounding pretty much like Paul Blanshard or Loraine Boettner:

There needs to be a Catholic Spring, in > which Catholics themselves demand the end of a middle ages dictatorship and > the beginning of a little democracy and respect for gender equality in the > Catholic church. Is contraceptive coverage an issue around which that could > happen. The Bishops will undoubtedly continue the fight. Does the Catholic > Hospital Association support of the Administration's new policy, together > with "the 98%" create an opportunity? > > Of course, this idea may just reveal my total lack of understanding of the > Catholic church, the economic power it can bring to bear against nuns and > priests who count on it for their maintenance, etc. Even if the idea isn't > crazy, I don't qualify to be involved and I have not thought at all about > how one would "plant the seeds of the revolution," or who would plant them. > Just wondering . . .

"The economic power it can bring to bear against nuns and priests who count on it for their maintenance, etc."  No, this isn't just a call for Catholic Social Thought in the public square.  It's ignorant, and it should be offensive . . . to "progressives" and "conservatives" alike.

Christianity Today: Speaking Truth to Trump

From Christianity Today (full article here):

What Trump is, everyone has known and has been able to see for decades, let alone the last few months. The revelations of the past week of his vile and crude boasting about sexual conquest—indeed, sexual assault—might have been shocking, but they should have surprised no one.

Indeed, there is hardly any public person in America today who has more exemplified the “earthly nature” (“flesh” in the King James and the literal Greek) that Paul urges the Colossians to shed: “sexual immorality, impurity, lust, evil desires, and greed, which is idolatry” (3:5). This is an incredibly apt summary of Trump’s life to date. Idolatry, greed, and sexual immorality are intertwined in individual lives and whole societies. Sexuality is designed to be properly ordered within marriage, a relationship marked by covenant faithfulness and profound self-giving and sacrifice. To indulge in sexual immorality is to make oneself and one’s desires an idol. That Trump has been, his whole adult life, an idolater of this sort, and a singularly unrepentant one, should have been clear to everyone.

And therefore it is completely consistent that Trump is an idolater in many other ways. He has given no evidence of humility or dependence on others, let alone on God his Maker and Judge. He wantonly celebrates strongmen and takes every opportunity to humiliate and demean the vulnerable. He shows no curiosity or capacity to learn. He is, in short, the very embodiment of what the Bible calls a fool.

Some have compared Trump to King David, who himself committed adultery and murder. But David’s story began with a profound reliance on God who called him from the sheepfold to the kingship, and by the grace of God it did not end with his exploitation of Bathsheba and Uriah. There is no parallel in Trump’s much more protracted career of exploitation. The Lord sent his word by the prophet Nathan to denounce David’s actions—alas, many Christian leaders who could have spoken such prophetic confrontation to him personally have failed to do so. David quickly and deeply repented, leaving behind the astonishing and universally applicable lament of his own sin in Psalm 51—we have no sign that Trump ever in his life has expressed such humility. And the biblical narrative leaves no doubt that David’s sin had vast and terrible consequences for his own family dynasty and for his nation. The equivalent legacy of a Trump presidency is grievous to imagine.

Why Dems should worry about the state of the GOP

Michael Gerson's op-ed on the "pathetic" state of the GOP is spot-on.  I won't attempt an excerpt - you should read the whole thing.  The GOP's collapse as a principled, idea-driven party this election cycle should be cause for concern to liberals, not just conservatives.  Our political culture is so much more focused on winning than on governance, though, that it seems many on the left will continue to see the sorry state of the opposition as cause for glee rather than deep concern.

Our country needs a strong center-right party, and I am hopeful that one will emerge from the ruins. But we have to be candid in acknowledging the ruins before building again. I'm not making a point about the candidates' relative merits (though I have my own views on that topic as well). My point is that the country is better off with a strong center-right party that champions the ideals, priorities, and virtues that have been associated with the GOP over the past few decades. Even those who are on the left should recognize that we're stronger as a nation with an opposition party that pushes back with a different but principled perspective. If the GOP nominee would have been a person who upheld that tradition, Hillary would not be coasting to victory right now. Political parties are important counterweights that make the opposition's ideas better, align ultimate policy more closely with public opinion, and help avoid overreach in governance. That's obviously not happening this year.  And there really isn't any comparison between the candidates on this front: Hillary is nowhere close to my first choice, but she hasn't played the same type of corrosive role in upending the Dems' traditional positions and priorities that Trump has within the GOP.  Trump seems incapable of carrying on an idea-driven conversation for more than 30 seconds, and that will result in a Clinton administration implementing ideas that have faced little or no reasoned opposition on the national stage.  That's bad news for her presidency and for the country. 

The Pioneer Institute releases study on Common Core and Catholic schools

In collaboration with the American Principles Project, the Boston-based Pioneer Institute has released the study, "After the Fall: Catholic Education Beyond the Common Core," written by scholars Anthony Esolen, Dan Guernsey, Jane Robbins, and Kevin Ryan. The purpose of the study, as stated in the Executive Summary, is to take "a critical look at the issues and principles behind the Common Core movement and, in particular, the standards’ effect on and suitability for Catholic schools." It's a robust 40 page version of the 2013 letter more than one hundred Catholic scholars addressed to the nation's bishops concerning the implementation of Common Core in diocesan schools (coordinated by Robbie George and Gerry Bradley). More than half of the dioceses, including Boston, have adopted Common Core. 

The study presents and then refutes the most popular arguments in favor of the program in Catholic schools and then proposes an authentically Catholic alternative:  liberal arts education.  The study beautifully and effectively exhorts Catholic schools to retrieve their inheritance of virtue-based character education and the "soul-shaping and soul-expressing power" of great literature, among the many merits of classical Catholic education. 

From the study's preface, by Ambassadors Raymond L. Flynn and Mary Ann Glendon:

Realizing that combining humanities and the arts with religious instruction aids spiritual development, Catholic schools have traditionally provided a classical liberal-arts education that generations of grateful parents and students have prized. Through tales of heroism, self-sacrifice, and mercy in great literature such as Huckleberry Finn, Sherlock Holmes, and the works of Charles Dickens, Edith Wharton, Dante, and C.S. Lewis, they seek to impart moral lessons and deep truths about the human condition. The moral, theological, and philosophical elements of Catholic education that are reinforced by the classics have never been more needed than they are in this era of popular entertainment culture, opioid epidemics, street-gang violence, wide achievement gaps, and explosive racial tensions.

 

Common Core, on the other hand, takes an approach that is contrary to the best academic studies of language acquisition and human formation. It drastically cuts the study of classical literature and poetry, and represents what Providence College English Professor and Dante scholar, Anthony Esolen, calls a strictly utilitarian view of mankind, “man with the soul amputated.” It is devoid of any attention to “the true, the good, the beautiful.” It eliminates the occasions for grace that occur when students encounter great works that immerse them in timeless human experiences. Instead, it offers stones for bread in the form of morally neutral “informational texts.” The basic goal of Common Core is not genuine education, but rather the training and production of workers for an economic machine. We see this in the reduced focus on classic literature, and in the woeful mathematics standards that stop short of even a full Algebra II course – giving students just enough math for their entry-level jobs. The goal is “good enough,” not academically “excellent.”

...

All students ought to read Dante, Shakespeare, and Flannery O’Connor; those who do are better for it, regardless of whether they plan to become philosophers or welders. All students ought to study, or at least be given the opportunity to study, mathematics that allow them a sustained and detailed scientific investigation of creation. But Common Core seems to view “overeducating” students as a waste of resources, or, as its proponents say, “human capital.” In what looks like an effort to define human beings as mere objects or beasts, it aims to provide everyone with a modest, utilitarian skill set...

 

As the influence of religion diminishes, for the sake of our civilization itself, it becomes more urgent than ever to find ways to provide children with the fundamental intellectual, spiritual, and moral ideals necessary for humans to flourish. But Common Core moves in the opposite direction. Sterile informational texts and workforce training will not help children to learn how to be good human beings. And no free society can survive for long without cultivating character and competence in its citizens and public servants.

 

Common Core’s shift away from the moral and cultural patrimony of Western Civilization comes at a most unfortunate time, when increasing marginalization of religion in our society is taking a severe toll on the moral culture that sustains our American democratic experiment. Religion plays a pivotal role in sustaining our freedoms, upholding the rule of law, creating a culture of compassion for the disadvantaged, and fostering social cohesion. Even the professed atheist Jürgen Habermas recognized that Western culture cannot abandon its religious heritage without endangering the great social and political advances grounded in that heritage.

 

Kevin Ryan and Mary Ann Glendon sit on the Board of Trustees and Advisory Board, respectively, of my children's school--the first classical Catholic school in the Boston area, founded in 2013. St. Benedict's, and other schools like it, are a true education in freedom, and parents are catching on:  we will outgrow our current site this coming year. As the Pioneer Institute study shows, and Hillsdale education professor Jeff Lyman discussed in a presentation to the school community last night, once a student's natural faculties are perfected in the study of the liberal arts, that student can go on to learn anything -- even contributing in a meaningful way to the "workforce" (the be all and end all of Common Core)! But, far more essentially, the student educated in the classical Catholic tradition will learn what it means to be a human being with an eternal destiny--and, as such, how to live a virtuous life and thereby contribute to the common good. The timing of this study, in light of the abject moral failings of our presidential candidates, could not be better. 

Learned Hand's "Spirit of Liberty" Address

As we contemplate the days ahead, it's well worth rereading this great judge's brief remarks on liberty, delivered in 1944 in New York's Central Park, where more than a million people, including 150,000 newly naturalized citizens, gathered for "I Am an American Day." Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.

Here's the whole thing: 

We have gathered here to arm a faith, a faith in a common purpose, a common conviction, a common devotion. Some of us have chosen America as the land of our adoption; the rest have come from those who did the same. For this reason we have some right to consider ourselves a picked group, a group of those who had the courage to break from the past and brave the dangers and the loneliness of a strange land. What was the object that nerved us, or those who went before us, to this choice? We sought liberty; freedom from oppression, freedom from want, freedom to be ourselves. This we then sought; this we now believe that we are by way of winning. What do we mean when we say that first of all we seek liberty? I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it. And what is this liberty which must lie in the hearts of men and women? It is not the ruthless, the unbridled will; it is not freedom to do as one likes. That is the denial of liberty, and leads straight to its overthrow. A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few; as we have learned to our sorrow.

 

What then is the spirit of liberty? I cannot define it; I can only tell you my own faith. The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the mind of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, near two thousand years ago, taught mankind that lesson it has never learned but never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest. And now in that spirit, that spirit of an America which has never been, and which may never be; nay, which never will be except as the conscience and courage of Americans create it; yet in the spirit of that America which lies hidden in some form in the aspirations of us all; in the spirit of that America for which our young men are at this moment fighting and dying; in that spirit of liberty and of America I ask you to rise and with me pledge our faith in the glorious destiny of our beloved country.