Mirror of Justice

Call for Papers: "Religion and School Choice"

More information about the Journal of School Choice special issue is here.  Spread the word!

Rowan Williams and Richard Dawkins oppose new Catholic schools

Wow.  I suppose we should welcome the candor, when a celebrity atheist and the former Archbishop of Canterbury (i.e., a prelate of a religious institution founded in order to suppress and expropriate the Roman Catholic Church) oppose allowing Catholic schools to open and expand.  You know, because it would be "divisive" to respect religious freedom.

"The New Law of the Child"

There's a new paper posted on SSRN, that's forthcoming (sigh) in the Yale Law Journal, called "The New Law of the Child."  Here's the abstract:

This Article sets forth a new paradigm for describing, understanding, and shaping children’s relationship to law. The existing legal regime, which we term the “authorities framework,” focuses too narrowly on state and parental control over children, reducing children’s interests to those of dependency or the attainment of autonomy. In place of this limited focus, we envision a “new law of the child” that promotes a broader range of children’s present and future interests, including children’s interests in parental relationships and nonparental relationships with children and other adults; exposure to new ideas; expressions of identity; personal integrity and privacy; and participation in civic life. Once articulated, these broader interests lay the foundation for a radical reconceptualization of the field of children and law. We propose a new tripartite framework of relationships, rights, and responsibilities that aims to transform how law treats children and their interactions with others. The framework addresses children’s needs for state and parental control in many instances while also moving beyond those concerns to foster children’s interests in the here and now.

So far, it's (basically) the same move we've encountered before, perhaps most notably from James Dwyer, which involves expanding the basket of rights and "interests" the pursuit and protection of which is invoked to justify expanding state power over children's lives at the expense of parents' natural rights.  I hope all those who read the paper will also read Melissa Moschella's new book, "To Whom Do Children Belong?" or, if they are pressed for time, this golden-oldie of mine:

Many States exempt religious parents from prosecution, or limit their exposure to criminal liability, when their failure to seek medical care for their sick or injured children is motivated by religious belief. This paper explores the question what, if anything, the debate about these exemptions says about the state's authority to override parents' decisions about education, particularly religious education. If we accept, for example, that the state may in some cases require medical treatment for a child, over her parents' objections, to avoid serious injury or death, should it follow that it may regulate, or even forbid, a child's religious training or religious-school education to prevent an analogous, though perhaps less tangible, harm? 

The Supreme Court famously proclaimed, in Pierce v. Society of Sisters, that parents enjoy a fundamental right to direct and control the education of their children, but do we really accept, or even understand, the premises, foundations, and implications of this pronouncement? Recent calls for a thicker liberalism and for the harnessing of education to create truly liberal citizens make it all the more important that we take Pierce seriously. And if we do, it is suggested that state functionaries, guided and restrained by a proper humility about their authority and competence, should override parents' educational decisions only to prevent harm, carefully defined, to a child. The problem is, how do we define harm. This paper proposes that the content of religious instruction, traditions, or beliefs should not be viewed as harmful in the sense necessary to justify government second-guessing or supervention of parents' decisions about such instruction. In a free society, one that values religious freedom, the state should not entertain, let alone enforce, a belief that children would be better off without religious faith.

"How Christians Respond to Persecution" - a new volume from the "Under Caesar's Sword" project

More info is here.  Congrats to my Notre Dame colleague Dan Philpott for his great work on this project.

"The Dignity of Politics: A Panel Discussion" (March 27 in Chicago)

Yet another great event coming up from the good people at The Lumen Christi Institute.  Check it out!

Liberalism and Christianity at Harvard Law

The much-anticipated Liberalism and Christianity conference, sponsored by the Harvard branch of the Thomistic Institute, took place at the Harvard Museum for Natural History this past weekend.  Though more than a few were kept away by severe weather on Friday -- including Helen Alvare who was to give one the principal talks, and Patrick Deneen, whose new book was on the lips of many -- the conference drew more than 300 participants (including a hearty portion of really smart undergrad and graduate students who asked most of the questions). 

Remi Brague, the noted French historian of philosophy and professor emeritus at the Sorbonne, kicked the conference off with his keynote "Made Free for Freedom." His talk, inspired by St. Paul's "Christ has made us free for freedom" was a walk from biblical antiquity into modernity, with a focus on the primacy of freedom for both. The trouble with liberalism is not liberty, he said, but liberty as an 'ism' --an aim in itself. The ancients (he called upon St. Paul, Plotinus, and Augustine) understood freedom as sought for the sake of the Good. This view was not one laid out in argument (before Augustine), but substantively presumed. In modern times, of course, the Good is dropped and freedom--as liberation--becomes a goal in itself. 

This quote from T.S. Eliot's Idea of a Christian Society captures much of his talk (and was the high point, in my mind): "[liberalism] is something which tends to release energy rather than accumulate it, to relax, rather than to fortify. It is a movement not so much defined by its end, as by its starting point; away from, rather than towards, something definite. Our point of departure is more real to us than our destination..."

Fr. Dominic Legg, OP (graduate of Yale Law and incoming director of the Thomistic Institute) opened the next morning with a marvelous presentation of St. Thomas on law. He especially sought to distinguish St. Thomas' account of justice as first in God and particularly in God's divine intellect, as up and against later voluntarist conceptions of law. During the Q/A, he recommended a book that 15 years ago had changed his life (and is one of my very favorite books of all time), Servais Pinckaers' Sources of Christian Ethics. Fr. Pinckaers, also a Dominican, describes masterfully the movement from Thomas to Ockham to our current misunderstanding of freedom. This movement was the basic content of the first part of Fr. Legg's presentation.

I was especially interested to hear that Fr. Legg has discerned in Thomas a theory of individual rights. Most, he said, think the creation of individual rights is from the Enlightenment (including Deneen and Hanby, but prior to them, my teacher, Fr. Ernest Fortin). But Thomas has a such theory, even if it is a different conception of individual rights from that of the various Enlightenment thinkers. Thomas thought that what is due someone in justice is a subjective 'ius' (right) that an individual possesses and can assert. These rights, however, are never abstracted from the common good or a teleological ordering of the person and community toward God. Rights are merely a function of justice, directed to the common good, not the whole of it. But, acknowledging what is due individuals is part of what makes a city just. Rights are thus indispensable to a just regime. 

Importantly, he noted that Enlightenment thinkers (and those in their wake) may have thought they were dispensing with the "good," but that every rights claim is aiming at some conception of the good, even if smuggled in under claims of neutrality (ie, Rawls). The problem is not so much rights then but the underlying vision of the good that is is deeply contested in our society. That question -- concerning the substantive conception of the good underlying each theory (or claim) of rights -- is the real conversation we should be having. Bravo!! I will post his paper on Thomas on rights when I acquire it. 

The next portion of the day was when Helen was to have spoken, on the family no less. I think this explicit family perspective was definitely lacking, and Helen was the best person for the job. Hopefully she will publish the remarks she had prepared (and I will post). In her place, and to the great interest of participants, Harvard's Adrian Vermeule and Notre Dame's Phillip Munoz offered contrasting perspectives on liberalism, and on its influence over the American Founding. Adrian pulled from his deeply intelligent and thought-provoking review of Deneen's book in American Affairs.  (Instead of trying to summarize it in this already long post, I will just suggest strongly that you read it in full.) Phillip, in addition to stirring the audience to laughter several times (boy, is he funny), also offered evidence that the Founders did not, on the whole or in the majority, share the view of liberalism that can fairly be imputed to Hobbes and Mill. Their shared view, rather, was that natural law -- thick on the deeply Christian ground in those days -- bounds and constrains natural rights. If there was a detente between the two panelists, it was in the view that liberalism ala Hobbes is quite wrong-headed, but that perhaps the Founders were up to something else. Bravo on this score as well! 

In an effort to end this post, I'll skip Candace Vogler's talk on JS Mill and sex and gender, and head right for the final panel. Adrian was seated there too (as per original plans), joined by Rusty Reno and Princeton's Margarita Mooney. Reno offered a sophisticated response to Vogler's presentation of Mill, suggesting that though Mill wanted to encourage self-cultivation and self-possession (goods in themselves), his form of liberalism qualified by the harm principle tends to provide more advantages to the talented/well-off than the untalented and more disadvantaged otherwise. This is a theme of Rusty's and a really important one. The experiments in living that Mill endorsed (eg, alternative family structures) provide opportunities that the talented/wealthy seem to roll with, but that when embraced across society, lead to disastrous outcomes, especially for the poor. It's also one thing to redistribute economic advantages, say, through tax policy, but it is very difficult to redistribute cultural advantages. And, without a Christian impulse, the elite perhaps see no reason to sacrifice (apart from money) to the untalented. (The proof positive of this analysis can be seen in Richard Reeves' new book, Dream Hoarders.) Rusty then concluded that the true source of decadence is our unregulated sexual culture, and that we ought to engage in a moral project of cultural re-regulation. Hear, hear! [Original misspelling corrected.] 

Margarita Mooney spoke of the importance of including other -isms in our critique (social Marxism and Freudianism) which she judged, calling upon the work of Augusto Del Noce, have influenced our modern situation perhaps as much as liberalism. She also thought it essential to report on the truly positive good people are doing - building new schools, starting new movements, changing their lives. Her important practical comments were taken up in a more spiritual bent by the exquisite concluding remarks of Fr. Thomas Joseph White, O.P. I cannot begin to do these final remarks justice, so will post when I hear they are available.  

 

Justice Kennedy's opinion is "nuts," and other non-disqualifying commonplaces about AMK outputs

Senator Tammy Baldwin and her staff are attacking a district court nominee in Wisconsin based on critical comments he made about Justice Kennedy in a blog comment and a couple of radio interviews. The focal point of the attack on nominee Gordon Giampietro is criticism of the opinions in Obergefell v. Hodges and Lawrence v. Texas:

"Senator Baldwin believes serious questions remain about whether this nominee would be able to serve as a fair and impartial judge on a federal court," Baldwin spokesman John Kraus said.

Kraus focused on Giampietro's comments on the U.S. Supreme Court's decision on same-sex marriage. In 2015, Giampietro said of Justice Anthony Kennedy's ruling, "It's not really legal reasoning" and added that Kennedy "went off the rails years ago" in a decision striking down sodomy laws.

“This nominee for a lifetime appointment to the court attacked a majority decision from the Supreme Court, written by Justice (Anthony) Kennedy, and said it could be ignored," Kraus added. He said Giampietro should have made this information available to the nominating committee. 

Really? C'mon. There's nothing disqualifying about attacking "a majority decision from the Supreme Court," especially one authored by Justice Kennedy. It's as American as America itself.

Conveniently, Mitch Berman and David Peters at Penn have just posted to SSRN a new paper about Justice Kennedy. They defend him as a principled jurist. But to set up their defense, they collect criticisms in Part I. Here are some evaluations of aspects of a range of AMK opinions for the Court:

• Parents Involved is "cryptic." (Jonathan Fischbach) 
• LULAC is "bizarrely unclear." (Michael S. Kang) 
• Boumediene is "Kafkaesque." (Robert J. Pushaw, Jr.)
• Casey is "unintelligible." (Michael Stokes Paulsen)
• Lawrence is "remarkably opaque" (Cass Sunstein) & "almost incomprehensible" (Steven Calabresi).
• Abbasi is "wholly unsubstantiated," "staggeringly wrongheaded" and, "for lack of a better word, nuts." (Stephen I. Vladeck)
• Alden is "not only intellectually insupportable ... but ... simply wrong" (Louise Weinberg); also, "nothing short of fanciful" (Daniel Meltzer). 
• Citizens United is "simplistic" and "preposterous." (Ronald Dworkin)
• Gonzales v. Carhart "refuses to take Casey and Stenberg seriously.” (Ruth Bader Ginsburg)

Senator Baldwin and her staff might not recognize all the names here (I don't), but these critics plainly represent a wide range of views on other matters. Whatever one thinks of particular opinions, Justice Kennedy has at one time or another driven almost all of us to conclude he's "gone off the rails" in some respect or another. This doesn't disqualify. It just shows that we're paying attention.

"Against Marriage: An Egalitarian Defence of the Marriage-Free State"

I have to admit, when I first clicked on, and then started reading, this review of Clare Chambers's Against Marriage (OUP 2017), I was confident that it was a kind of Larry-Solum-level-genius parody of contemporary Rawlsian political-liberalism moves.  Alas, it's not.  Both the review (and, assuming the review is accurate, the book) take what I can only regard as a dangerous, even tyrannical turn.  For example, "Chapter 6 distinguishes the marriage-free state from the marriage-free society and considers the circumstances under which the state might be justified in intervening in private marriages. Here Chambers clearly distinguishes her own position from a libertarian one by focusing on the state's role in preventing harm to vulnerable populations and to ensuring discriminatory practices are prohibited in the private sector."  And, "[t]he latter chapter balances the need to protect women's (and children's) rights with the need to protect religious freedom, deftly arguing that religious freedom cannot include the right of religious leaders to discriminate against members of their own religion."  Is this really what's coming?  Is this what "liberalism" is coming to (or, perhaps, as Patrick Deneen would argue, it's always what it was or was on the way to becoming).