Mirror of Justice

A Conversation with Cardinal Peter Turkson

If you are in the DC area tomorrow evening, you might be interested in attending a Conversation with Cardinal Peter Turkson, the head of the new Vatican Dicastery for Integral Human Development, on "Vatican Perspectives on Care for Creation, Economic Injustice, the Refugee Crisis, and Peace." Details and registration are here.  John Carr, Director of Georgetown University's Initiative on Catholic Social Thought and Public Life, has organized this public event in connection with a convening of US Academic Centers on Catholic Social Thought.  Should be a very interesting couple of days in DC!

A disquieting observation about the Fourth Circuit's en banc immigration decision

The typical law student has a tendency to think he or she has performed worse on exams perceived as harder and better on exams perceived as easier. But often the opposite is the case. Thinking that one may have done poorly because the examination seemed so hard is sometimes a sign that one has performed well.

One of my law school professors (I think it was Dan Meltzer, but I'm not sure) gave an explanation of this phenomenon that made sense to me. Exams seem hard when the exam-taker has perceived the hard issues raised by the exam. Exams that seem easy may only seem that way because the exam-taker has missed the hard issues entirely.

I'm reminded of this phenomenon in reading the Fourth Circuit's en banc immigration decision. The decision seems legally wrong for reasons set forth in Judge Niemeyer's dissenting opinion, the government's briefs, and online writings by Josh Blackman, Ilya Shapiro, Marc DeGirolami, and others. Go find and read those if you are interested in the technical legal analysis. But don't forget that good legal analysis often is technical.

Most troubling to me, though, is the seeming confidence of the majority opinion that comes through in the language it uses as it deploys modern Establishment Clause doctrine. The reason that is troubling is traceable to one of the best law review articles I've read.

In *A Political History of the Establishment Clause,* 100 Mich. L. Rev. 279 (2001), John Jeffries and Jim Ryan offer precisely what their title suggests. Go ahead and read it. It will probably make you miserable if you really care about the law part of constitutional law. But it will also make you wiser.

If you're an anti-anti-Catholic, you might also--and appropriately--be more worried about judicial decisions finding Establishment Clause violations.

Serving Students with Disabilities in Catholic Schools

One of the greatest privileges of serving on the Board of the National Catholic Partnership on Disability is learning from my talented and committed fellow board members.  Two of them (Michael J. Boyle, Director, Andrew M. Greeley Center for Catholic Education, School of Education, Loyola University Chicago, and Pamela R. Bernards, Director for Professional Development, National Catholic Educational Association) have just published a fantastic white paper entitled One Spirit, One Body:  An Agenda for Serving Students with Disabilities in Catholic Schools, available here.

Some interesting findings:

Despite the fact that private schools are not required to legally comply with the least restrictive environment mandates of the Individual with Disabilities Education Improvement Act (IDEIA), there is evidence to show that Catholic schools are responding to the Church’s challenge to serve students with disabilities.

The principle findings of the USCCB (2002) study, Catholic School Children with Disabilities, found that nationally, 7 percent of children enrolled in Catholic schools are children with disabilities, compared to 11.4 percent enrolled in public schools. When comparing disability types, Catholic schools enroll a greater percentage of children diagnosed with hearing impairment or deafness, developmental delay, speech/language, uncorrected vision impairment or blindness, traumatic brain injury, and other health impairments than public schools (USCCB, 2002: p. 11). Huppe (2010) notes that other disability categories such as mental retardation, autism, and emotional disorders have a “significantly lower representation in Catholic schools than in public schools.”

Boyle and Bernards offer great suggestions for dealing with some of the challenges of including students with disabilities in Catholic schools.  They acknowledge the tension felt by many Catholic schools between wanting to serve students with disabilities and the financial burdens of doing so, but remind us that:

. . .the United States Catholic Bishops have stated:
Costs must never be the controlling consideration limiting the welcome offered to those among us with disabilities, since provision of access to religious functions is a pastoral duty (USCCB, 1998, p.2).
“The focus on the inequities in funding between public and private schools often provides an opportunity to justify the inability to provide services for children with special needs” (Moreau, Weaver, R. Davis, S. Landers M. 2006). However, the failure to serve students with disabilities in Catholic schools may actually be “due to an underlying belief on the part of many Catholic educators that children with special needs would be better served elsewhere” (Moreau et al., 2006). In many instances, it has been an assumption that the responsibility for the education of students with disabilities lies in the public school domain, whereas Catholic education encompasses so much more than just academic preparation. Catholic education offers spiritual formation, a faith community and a sense of belonging to the larger church which cannot be replicated within the public school setting. Certainly, the Bishops have noted the value in the interaction between those individuals with disabilities and those without. In such an interchange, “it is often the person with a disability who gives the gift of most value” (USCCB, 1998). Educating individuals with disabilities within the Catholic school setting helps those without disabilities to see the real world reflected in their school, creates a sense of normalization that disability is a part of life and helps to minimize the stigma of disability.

 

Call for Papers: "Building Institutions for the Common Good: The Purpose and Practice of Business in an Inclusive Economy"

My colleagues at the Ryan Institute have put out a call for papers for a conference next summer that is sure to be of interest to many MOJ readers.

The Tenth International Conference on  Catholic Social Thought and Business Education and The Sixth Colloquium on Christian Humanism in Business and Society   "Building Institutions for the Common Good: The Purpose and Practice of Business in an Inclusive Economy"   University of St. Thomas St. Paul - Minneapolis, Minnesota June 21-23, 2018 The common good is a prominent principle and one of the pillars of the Catholic social tradition.  Its origins in Judaism and Hellenistic philosophy were taken up by the early Christian community and reinforced by Christ's commandment of charity, forgiveness, and service. As suggested by its ancient roots, the principle is not exclusive to Christian faith; other religions and philosophical traditions uphold it too. Still, sharing an appreciation for the concept does not remove the important work about the meaning of the common good and its operational and institutional significance in business.   Scholarly reflections on the common good vary in correspondence with the whole range of existing philosophical, economic, political, and social positions. This is certainly true among leading voices in the development of Catholic social thought -- Jacques Maritain, Neo-Thomism, civil economy, personalism, and Catholic liberalism, among others. What has not been as developed is a tradition of thought that engages the common good with the purpose and practice of business.  This conference is set out to make a contribution in this area.   As business and its impact have moved into virtually every country and culture on the planet, so have questions about its role in regard to human well-being and to what society holds in common. This makes the common good a subject for reflection in the education of all future business professionals.  There may be as well a particular opportunity and benefit for reflecting on the common good in the context of business education in Catholic universities. Uniquely prepared to address the idea of the common good from a theoretical perspective, Catholic business education is also uniquely positioned to reflect on it as a moral principle for leaders and as an aspirational principle for a business mission.     This conference on "Building Institutions for the Common Good: The Purpose and Practice of Business in an Inclusive Economy" welcomes participants from multiple disciplines and perspectives ready to engage in a constructive dialogue on the common good and how a growing number of people can participate in the market economy and finance in an equitable, stable, and sustainable way. We take the common good within the Catholic social tradition as our starting point in this discussion. We are looking for papers in three tracks: broad, organizational and theoretical treatments of the common good; the common good in relation to individual disciplines (marketing, personnel management, strategy, etc.); and curriculum design, materials, and pedagogical approaches for addressing the common good in a business context. Track One - Exploring the Common Good, Its Meaning and Its Capacity to Inspire and Sustain Ethical Institutions It is relatively easy to criticize what does not work and even necessary to do so. The much more challenging task is to build a humane and flourishing society. Catholic social teaching has examined property, free and ethical markets, businesses, the rule of law, and the legal protection of workers as some of the institutions that are essential in creating institutions that work. However, the best institutions falter if they are undercut by a lack of individual conscience and social virtue. Thus, Catholic social teaching also repeats demands for virtuosity: structures and institutions alone are not capable of solving the problems that beset society Topic areas: Theological and philosophical visions of the common good; Markets and the common good; The purpose of business and the common good; Property and the common good; Law and the common good; Interrelation of the common good with other principles of Catholic social teaching; Business and its social and moral frameworks; Business, family life, and the common good; Social value and the responsibility of business; The common good in business ethics; Religious and wisdom traditions on the common good; Philosophy of business and the common good. Track Two - Exploring the Common Good and Its Relevance for Specific Fields of Management Principles that are discussed on an abstract level can remain bloodless and unsubstantial. Not infrequently the abstract principles, like the common good, become clear by application in concrete circumstances. We welcome papers that explore the meaning and relevance of the common good in specific fields of management and business, especially (but not exclusively) if they discuss the institutional dimension in fields such as the following: marketing; strategy and governance; managing people in the organization; finance; operations; compliance and regulation. Track Three - Providing Curricular Materials, Processes, and Ideas that Reflect the Significance and Practical Wisdom of Business and Leadership Reflection on the Common Good Topic areas: Case studies that address breaches and/or success in managerial efforts to create business cultures that address social justice and institutionalize approaches that work; Experiential exercises that examine the question of the common good; Video or computer-based approaches that enhance teaching about the common good; Literature and cross-disciplinary activities that highlight questions of the common good. In the area of curriculum development, we are specifically looking for syllabi, background notes, and teaching notes that engage the Catholic social tradition and the disciplines of business and liberal education. For examples, please see http://www.stthomas.edu/cathstudies/cst/curriculum-dev/biz-ed/ Call for Paper Proposals:   The selection committee is looking for submissions that engage one of the three tracks described above.   Please send a one to two-page single spaced proposal which includes the following: thesis/purpose, outline of paper as well as a one paragraph biography that includes institutional position and affiliation, recent publications, research interest, practical experience.  The best papers will be published. Papers eligible for publication must be in English. Presentations in workshops must also be delivered in English.  Call for Abstracts and Workshops: In addition to the classic formula for presentations (max. 25 minutes each: about 15 minutes for the presentation itself and 10 minutes for discussion), workshops in groups may also be proposed, with brief talks and an immediate discussion of ideas. We will admit arguments that seek to find connections between the other participants and small groups already engaged in a specific topic. Presentations of professional activities and educational experiences are also welcome.  Conference Background Papers and Annotated Bibliography: Conference background papers and an annotated bibliography for this meeting will be available for your reference by June 1, 2017 at http://www.stthomas.edu/cathstudies/news/commongood/. The annotated bibliography will be periodically updated.   Send proposals by November 1, 2017 to: Fr. Martin Schlag at [email protected]. Conference Organizers: The John A. Ryan Institute, University of St. Thomas MCE (Markets, Culture and Ethics) - Research Centre of the Pontifical University of the Holy Cross, Rome The Veritas Institute, University of St. Thomas Conference Registration fee: $350. Registration will begin October 1, 2017 at http://www.stthomas.edu/cathstudies/news/commongood/.

 

 

"Objection to Conscience: An Argument Against Conscience Exemptions in Healthcare"

That's the title of a paper posted to SSRN by Alberto Giubilini (of "After-Birth Abortion" fame).  Here's the abstract:

I argue that appeals to conscience do not constitute reasons for granting healthcare professionals exemptions from providing services they consider immoral (e.g. abortion). My argument is based on a comparison between a type of objection that many people think should be granted, i.e. to abortion, and one that most people think should not be granted, i.e. to antibiotics. I argue that there is no principled reason in favour of conscientious objection qua conscientious that allows to treat these two cases differently. Therefore, I conclude that there is no principled reason for granting conscientious objection qua conscientious in healthcare. What matters for the purpose of justifying exemptions is not whether an objection is ‘conscientious’, but whether it is based on the principles and values informing the profession. I provide examples of acceptable forms of objection in healthcare.

This is, I think, the way things are going.  Those who acquire the power to (re)define the "principles and values informing the profession" will, increasingly, do so in a way that renders un-"acceptable" Christian commitments and practices and excludes those with such commitments from the professions (including law).  

If you haven't read Legutko, I suggest you do.

Dugan reviews Dreher's "Benedict Option"

My friend and former student Conor Dugan has this review up, at Catholic World Report, of Rod Dreher's The Benedict Option.  It's worth a read.  I think Conor's does a better job than most reviews of "getting" what (it seems to me) Dreher is proposing.  In keeping with what many of us here at MOJ have been writing for years, Conor hones in on the centrality of anthropology:

The first chapters of The Benedict Option are largely diagnostic, an assessment of where we are and how we got here. Contrary to critics of the book, Dreher’s diagnosis is not overly pessimistic or declinist (nor is it, as one virtue-signaling academic claimed, a lament for a white-Christianity that is no longer), but realistic. Indeed, while I can understand criticisms of Dreher’s proposal for how we ought to respond to the barbarism that we face, for the life of me, I cannot understand how people can reject his assessment of the world as it is now. We might not like it, but the portrait Dreher paints seems largely accurate. ...

We've forgotten what nature is—the sheer givenness of nature and its intrinsic meaning and intelligibility. As Pope Benedict stated beautifully in his last Christmas address to the Curia as Pope:

[T]he attack we are currently experiencing on the true structure of the family, made up of father, mother, and child, goes much deeper. While up to now we regarded a false understanding of the nature of human freedom as one cause of the crisis of the family, it is now becoming clear that the very notion of being – of what being human really means – is being called into question. . . . [S]ex is no longer a given element of nature, that man has to accept and personally make sense of: it is a social role that we choose for ourselves, while in the past it was chosen for us by society. The profound falsehood of this theory and of the anthropological revolution contained within it is obvious. People dispute the idea that they have a nature, given by their bodily identity, that serves as a defining element of the human being. They deny their nature and decide that it is not something previously given to them, but that they make it for themselves.

Natural Law, Welfare Economics, and Administrative Law: Comments on Helmholz

Lumen Christi recently hosted an excellent event on Richard Helmholz's most recent book, "Natural Law in Court." In addition to Helmholz, the other panelists were Michael Moreland (moderating) and Jeff Pojanowski.

I post here the written version of my comments on the book in raw, unedited form. Lumen Christi will also release a video of the event. The written comments do not include my sense (delivered orally) that the book accomplishes the near-impossible by presenting the caselaw of late-medieval Piedmont, for example, in a way that is elegant and readable, indeed absorbing.

Pojanowski, in a tweet the morning of the event, and without having seen my remarks, teased that I would offer a natural-law defense of the administrative state. If I am to be condemned in any event, I might as well be hanged for the full sheep, and I think I'll take the lamb as well.

*****

Dick Helmholz says that "insofar as this book has a unifying theme," it is that "practical limitations repeatedly stood in the way of natural law's dictates." What exactly are these "practical limitations"? Dick clearly sees them as extrinsic to the natural law, and variously refers to them as "practical," "pragmatic," having to do with "consequences," resting on "public utility" or the "good of the community" and so forth. It is not wholly clear in what sense they are supposed to be an antonym of the natural law.

I want to suggest a somewhat different way of thinking about this, which is that the "practical" limitations Dick refers to are themselves solidly grounded in and indeed part of the natural law. If that is right then Dick has, perhaps surprisingly, undersold the natural law with this thesis. That is, the legal arguments he codes as practical limitations of the natural law are themselves a working-out of commitments within the natural-law tradition. The claims of lawmaking in the service of overall public utility themselves have unimpeachable natural law credentials. Indeed, at the end I will venture to suggest that something like judicial deference to the reasoned policy choices of lawmakers is itself an entailment of natural law theory.

Let me offer two ways of cashing out the suggestion that these practical limitations are themselves part of the natural law. The first way sounds in welfare economics, the second way sounds in (what we would today call) administrative law.

As to welfare economics, in many of the cases Helmholz discusses, the courts applying "practical reasoning" are reaching results, and indeed offering arguments, that can be understood comfortably in welfare-economic terms. Welfare economics is, of course, a moral theory, one that rests upon simple axioms claimed to be accessible to the natural reason of all.

Let me give one example of such an axiom: the Pareto principle, which in its weakest form says (I will simplify for present purposes) that a policy or legal rule improves upon the status quo ante if and only if it makes at least one person better off, and no one worse off. There are odd and rather contrived cases in which the principle may not hold, but there are also odd and rather contrived cases in which lying seems like a great idea. In the normal central cases, natural reason suggests that lying is a bad idea and also suggests that weak Pareto is almost necessarily correct.

A standard example of the importance of the Pareto principle involves the usury laws Dick discusses throughout. In one example, courts upheld an Italian statute allowing moderate rates of interest on a loan. As Bentham would later argue, such a rule makes both borrower and lender better off, if the alternative is not a zero-interest loan, but no loan at all. Indeed risky borrowers with little capital are most advantaged by allowing a positive rate of interest on loans. If we stipulate no third-party effects from a commercial transaction between these two parties, then - as Bentham argued - the transactors are better off and no one is worse off. Pareto.

Now there might in fact be third-party effects, and there is a kind of standard conversation to have about what theory of value to plug into the Pareto principle - what exactly do we mean by "better off"? - but the principle in itself is entirely agnostic as among theories of value; it doesn't necessarily presuppose or require, for example, a subjective and hedonic theory of value, although it is frequently discussed as though it does. In any event, my point is different. I don't care whether the laws allowing interest were in fact justifiable on Pareto grounds.

My suggestion rather is that courts allowing such laws, out of concern for the welfare of parties, were doing natural law squarely as it has been understood in the tradition. The Pareto principle, when adopted by a judge or other official as a criterion of social choice, is almost literally "law," at least in Aquinas' sense, because it is an "ordinance of reason for the common good." Where the principle is satisfied, the common good is necessarily enhanced. It is natural law because, again in Aquinas' words, "the first principle of the natural law is that good should be done and pursued, and evil avoided" and the principle aims to do just that.

In other cases, of course, the Pareto Principle doesn't hold. A nice example from Dick's book is the case of the ducal decree of Piedmont that made a city responsible for the losses suffered by a monastery within the city limits. In this sort of case, the losses will fall somewhere, so it is impossible to make someone better off without making someone else worse off.

Here I come to my second perspective. For these difficult cases, Dick gives us, what I can only call, at the risk of some anachronism, an administrative-law approach. That is, a running theme of the book is that in hard cases of this sort, where there is no escape from conflicting claims, courts imposed upon the relevant non-judicial actors a different sort of natural-law obligation sounding in procedural terms: an obligation to offer reasoned justifications for policy making, with a view to the common good. That is, as I read Dick, courts required nonjudicial actors to articulate some reasoned basis for their policy choices, one justified by reference to some rational conception of the common good.

In the case of the Piedmontese monastery, although the city argued that it was contrary to the natural law to hold them liable without fault, the lawyers defending the ducal decree carried the day by arguing, in Dick's words, that the natural law prohibition "applied only to statutes enacted without a good reason. This decree was not one of those." The reason given was that where no actual wrongdoer could be identified, to give the monastery no compensation at all would allow crime to go unredressed. Is that last argument a natural-law argument or a "pragmatic" argument? It seems impossible to put it only in one category or the other. As with the hypostatic union of the divine and human natures in Christ, it is both fully the one and fully the other. In that sense, I think Dick may be undercounting the natural-law arguments in the cases and even understating the influence of natural law.

Finally, although this is not explicit in Dick's text, and I would like to hear his thoughts on it, one gets the sense that courts might uphold the actions of lawmakers in such cases even if the reasoned justification advanced by the lawmakers was not necessarily the same one that the courts would have adopted if forced to make all decisions themselves. Here we have something like "deference" to nonjudicial actors, avant la lettre.

This shouldn't surprise us; I think deference of a sort is built right into the heart of natural law theory. The idea of the determinatio rests on the thought that ordinances of reason for the common good may be underspecified, such that there are multiple reasonable ways of carrying natural-law obligations into execution. Suppose a city, or a noble, has a natural-law obligation to provide a hospital for the poor in the territory. But there are many reasonable ways of carrying out this reasoned purpose to promote the common good, and if they are sensible courts will not interfere with any choice within the realm of the reasonable. As John Finnis puts it:

"A determinatio, if it is just and fit to be authoritative, must have a rational connection to principles of practical reasonableness. But that rational connection is like an architect’s decisions about dimensions; they must be rationally connected to the terms of the commission but these terms, while excluding various options, leave many options entirely open .... [such that] the choice is entirely free."

When lawmakers make choices of this sort -- what I have elsewhere called "rationally arbitrary" choices -- they are completing and fulfilling the natural law project, not overriding it with extrinsic "pragmatic" considerations. Indeed, I would be prepared to argue, but on a different occasion, that when lawmakers exercise this sovereign prerogative of reasoned-but-arbitrary free choice, they most nearly resemble God the Creator.

What Does It Mean to Be a Human Being?: Anthropology and Law

Earlier today, the Lumen Christi Institute hosted a planning session at Loyola University Chicago School of Law. Participants included Michael De Chevalier, Judge Tom Donnelly, Rick Garnett, Dick Helmholz, Tom Kohler, Thomas Levergood, David Lyons, Michael Moreland, Jeff Pojanowski, Adrian Vermeule, and myself. The purpose of the meeting was to begin the process of planning an ambitious project: a series of events and other gatherings aimed at building an intentional community of legal academics who have a greater knowledge of and appreciation for the Catholic intellectual tradition, and so are able to engage that tradition in their work as legal scholars.

As a prelude to our discussions, we read two short works: an article by John Coughlin on Christian anthropology (here), and Pope Benedict XVI’s address to the Bundestag in 2011 (here).

There was a general consensus at the meeting that these readings highlight two ideas of immense importance that the Catholic intellectual tradition has to offer law toady: a correct understanding of the human person and of human reason.

To aid the discussion, I prepared a memo on the anthropological question. At Rick’s suggestion I have posted it below and hope that readers find the points made and the questions posed to be of some value.

***                              ***                              ***                              ***

1. “Every system of law reflects certain foundational assumptions about what it means to be human.” John J. Coughlin, O.F.M., Law and Theology: Reflections on What It Means to Be Human From a Franciscan Perspective, 74 St. John’s L. Rev. 609 (2000). Coughlin is not alone in rendering this judgment. Political liberals, such as Isaiah Berlin have likewise said with respect to liberty, that the judgment to restrict certain action “depends on how we determine good and evil, that is to say, on our moral, religious, intellectual, economic and aesthetic values; which are, in their turn, bound up with our conception of man.” Isaiah Berlin, Two Concepts of Liberty, in Isaiah Berlin, Liberty 181 (Henry Hardy, ed. 2002). Others, of course, dispute this claim, or contend that a minimalist understanding of human nature is all that law requires – what Michael Sandel derisively referred to as the “unencumbered self.” See Michael J. Sandel, Democracy’s Discontent: America in Search of a Public Philosophy 6 (1996),

2. Despite whatever rhetorical gloss may accompany it, the dominant answer to the question “What does it mean to be a human being?” that underlies American law today is that man is simply a material being: one that eats, and sleeps, and copulates, and defecates. There is no “meaning” to human life or to the universe. There is no transcendence beyond this, other than the desire for “freedom” to realize one’s material desires. From this desire is derived the view that law, when it is exercised in a legitimate fashion, is solely designed to enhance, or secure the fulfillment of man’s material needs and desires. The question of the reality of human freedom and its relationship to law is in fact glossed over. Freedom is simply assumed to exist, and the implications of a thorough-going materialism are largely ignored.

3. In God, Philosophy, Universities: A Selective History of the Catholic Intellectual Tradition (2009), Alasdair MacIntyre writes: “One of the tasks of Catholic philosophers now, therefore, has to be that of following the injunction of John Paul II in Fides et Ratio to do philosophy in such a way as to address the deeper human concerns that underline its basic problems, without sacrificing rigor or depth” (p.176). In Fides et Ratio John Paul II argues that the contemporary project of philosophy is to “verify the human capacity to know the truth, to come to a knowledge which can reach objective truth by means of an adaequatio rei et intellectus to which the Scholastic Doctors referred” (FR ¶ 82). He also stresses “the need for a philosophy of genuinely metaphysical range, capable, that is, of transcending empirical data in order to attain something absolute, ultimate, and foundational in its search for truth” (FR ¶ 83).

MacIntyre maintains that Catholic philosophy must respond to the Nietzschean claim that all uses of philosophical argument and the conclusions reached “are unrecognized expressions of and masks concealing a will to power” (p. 177). An adequate response to this charge must give “an account of their philosophical arguments and conclusions that warrants the claim that they have sufficiently good reasons for advancing those arguments and defending those conclusions” (Id.). The substance of such an account is “what is it to be a human being” (Id.). Moreover, “any adequate account of what it is to be a human being will explain how and why human beings are capable of the relevant kind of self-knowledge” (Id.). Furthermore, if Catholics succeed in offering such an account, they would be in a position “to engage with the contentions of the whole range of contemporary major philosophical positions incompatible with and antagonistic to the Catholic faith” (p. 178).

What is the answer to the question “What is it to be a human being?” offered by the leading schools of jurisprudence in the contemporary academy?: Law and Economics? Legal Realism/Critical Legal Studies? Feminism? Legal Positivism? Do these various schools of jurisprudence adequately respond to the Nietzschean challenge? Or do they succumb to it?

4. In Centesimus Annus (1991), John Paul II confronts a philosophical and political system then dominant in the West, namely, socialism. He states that “the fundamental error of socialism is anthropological in nature,” subordinating the individual to “the functioning of the socioeconomic mechanism,” eliminating the personal responsibility of man “in the face of good and evil” and so reducing man “to a series of social relationships [in which] the concept of the person as the autonomous subject of moral decision disappears” (CA ¶ 13). Pointedly, John Paul observes, “from this mistaken conception of the person there arise both a distortion of law [sic], which defines the sphere of the exercise of freedom, and an opposition to private property” (Id.).

5. We may, perhaps, think about how the Catholic intellectual tradition can be brought to bear on different aspects of law through the lens of “culture” that John Paul II proposes in Centesimus Annus ¶ 24. He begins by noting that capitalism, as practiced in much of the West actually “agrees with Marxism, in the sense that it totally reduces man to the sphere of economics and the satisfaction of material needs” (CA ¶ 19). Contrary to the shared materialism of these two competing political systems, “it is not possible to understand man on the basis of economics alone” (CA ¶ 24). Rather, “[m]an is understood in a more complete way when he is situated within the sphere of culture through his language, history, and the position he takes toward the fundamental events of life, such as birth, love, work, and death. At the heart of every culture lies the attitude man takes to the greatest mystery: the mystery of God. Different cultures are basically different ways of facing the question of the meaning of personal existence. When the question is eliminated, the culture and moral life of nations are corrupted” (Id.).

How does American law conceive of and respond to “the fundamental events of life”: birth, love, work, death? How do our law and legal institutions respond to the mystery of God? What is the answer to the fundamental events of life posed by the leading schools of jurisprudence in the academy today?: Law & Economics? Legal Realism/Critical Theory? Feminism? Legal Positivism?

6. Coughlin flushes out what he describes as a Franciscan anthropology (pp. 624-626) which, he says, in contrast to the anthropology evidenced in Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992), “teaches that true freedom subsists not in the assertion of individuality alone, but from participation and solidarity with others in a common endeavor” (p. 625). This anthropology “offers the law the insight that legal relationships need not be defined exclusively in terms of individual rights” but that these freedoms must be balanced with responsibilities (Id.). He notes that “[a] system of law that is primarily concerned with individual rights may not readily enhance the goal of supporting family life” and that the language of individual rights “may result in a legal culture that seems hostile to the family unit” (p. 626).

In what other ways does the materialist anthropology implicit in American law distort law and so fail to support the human person and the common good of society?

Prof. Michael Hernandez on religiously-affiliated law schools

Courtesy of Paul Caron, here's a new paper from Michael Hernandez (Regent) called "In Defense of Pluralism:  Religiously Affiliated Law Schools, Olympianism, and Christophobia."  The abstract:

Daniel Webster observed that “Christianity, general, tolerant, Christianity, Christianity independent of sects and parties” was the foundation of our liberties and legal system. In the spirit of this tradition, I have explained in my scholarship that the law must zealously guard religious liberty for all, while the substance of law should be based on principles of truth knowable by and accessible to all and not on principles unique to one faith. In other words, a Christian-based jurisprudence does not inherently involve the imposition of uniquely Christian principles and, thus, is not theocratic. This Essay responds to direct challenges to religiously affiliated educational institutions and explains why a principled pluralism rooted in the enduring traditions upon which this nation was built must include accommodating the right of religiously affiliated institutions to act in accordance with their faith principles.

Timely and important.

Time Magazine heard about our conference

Apropos our upcoming Anglo-Russo comparative tradition and traditionalism conference, it seems Time Magazine has a late developing interest as well.

But I'm afraid the conference is closed to the media.