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.

Wednesday, November 14, 2018

English translation of my interview in La Nuova Buss la Quotidiana (Italy) November 14, 2018

Question 1: Our society is defined as a "society of rights and freedoms", in which everyone can see legally recognized every will to obtain something (it is enough to desire something for it to be considered a right). Yet there has never been a more illiberal society than ours, in which it is enough to think that this approach to right and law is wrong to undergo trials or to be dismissed. Why?

RPG:  It is a mistake to define our society as merely “a society of rights and freedoms.” And it is nothing short of absurd to imagine that desiring something generates a right to it. The identification of true human rights and honorable liberties requires disciplined reflection on the nature, dignity, and goods of the human person and, relatedly, on the requirements of justice and the common good. That kind of reflection will reject the voluntarist theory of rights. It will conceive rights as protecting basic aspects of the well-being and fulfillment—the flourishing—of human persons. It will ground the right (and “rights”) in the good (and goods), rather than supposing that the right (and specific rights) can somehow be identified and rationally affirmed apart from reflection on the fundamental goods of human nature that rights, properly understood, protect.

When we understand and approach correctly the relationship between rights and human goods, we avoid falling into the illiberalism that is the fruit of the voluntarist conception of rights (and ethics generally) that is dominant today among secularist progressive elites. For example, when we understand the right of free speech as protecting the values of truth-seeking and democracy, we will have a greater respect for that right and a keener sense of its importance than is common today among the cognoscenti.  On this point, I would invite readers to see this statement I have released together with my friend and teaching partner Professor Cornel West:  https://jmp.princeton.edu/statement


Question 2: Why does the fact of recognizing certain rights based on the will and that, therefore, have nothing to do with the natural law, automatically produce the discrimination of the rights to life, to the freedom of expression of faith of other people?

RPG:  The voluntarist conception of rights is intellectually indefensible, indeed hopeless. It justifies nothing, but can provide a rationalization for anything. Where anything can be rationalized, the interests of those holding power will be served by dressing up their arbitrary exercises of will—even the most oppressive—in the language of ethics. Where, as in modern western societies, what Professor Mary Ann Glendon calls “rights-talk” enjoys special prestige, illiberal policies and activities (such as exposing unborn babies to the lethal violence of abortion and criminalizing the expression of dissent from unjust or otherwise morally unsound policies) will be defended in that language. What my great friend Rabbi Lord Jonathan Sacks says of the gross evil of anti-Semitism can be said any form of grave injustice: It will always be rationalized by its perpetrators in the language of the dominant discourse of the day.

Question 3:  We celebrate the declaration of human rights, whose language has also been assumed by the Church, but how come that since the Enlightenment proclaimed them, the right of life, social solidarity, the idea of the common good and the family weakened so much?

RPG:  It is a long and complex story—one that we must be careful to avoid oversimplifying. The best, most comprehensive account I know is in a forthcoming book by the American legal scholar Stephen Smith entitled Pagans and Christians in the City. I myself had the honor of providing a Foreword for Professor Smith’s book. He charts the collapse of formerly Christian cultures into modern forms of paganism as they gradually lost their sense of the transcendent and began searching for meaning—and, indeed, the sacred—in purely worldly (immanent) things. Emotivism, expressive individualism, “me-generation” ideas about sexuality and the recreational use of drugs, what the late Christopher Lasch labeled “the culture of narcissism,” are all consequences (as well as partial and further causes) of the loss of the sense of the transcendent. In the new religion of immanentism, such things as abortion, divorce, and promiscuity are defended as if they were sacraments because seeking personal “fulfillment” (i.e. gratification, the satisfaction of desire), especially in sex, has been sacralized. In this context, the family weakens along with all other social bonds. The idea of unchosen moral obligations—an idea upon which true solidarity critically depends—becomes unintelligible and is perceived as arbitrary imposition.


Question 4: What are the rights most in danger in the West and what effects does a world in which the natural law is violated produce?

RPG:  The right to life of the unborn child, the newborn child, the cognitively impaired or physically disabled individual, the frail elderly person—these are all in jeopardy. Similarly, religious freedom and the rights of conscience (together with the related right to freedom of thought and expression) are in peril, as are the rights of children to a morally healthy upbringing and the rights of parents to direct the upbringing and education of their children. Where will replaces reason, where disciplined inquiry into the goods of human nature and the dignity of the human person is cast aside in favor of the identification of wants or desires with reasons and even “rights,” the only question will be who has the power to impose his arbitrary will on others. The efforts of those on the left to impose their ideology will inevitably produce a backlash from the right. Civil discourse and respectful engagement between the disputants becomes impossible—and soon is not even regarded as desirable. Neither side seeks truth, but only victory—“by any means necessary.” We descend into a Nietzschean nightmare.


Question 5: Many are persuaded that it is no longer necessary to talk about natural law. They claim that the world can no longer understand this language, since nature is now misunderstood by modern reason. Do you think that the new generations are able to start from this or that the approach towards them should be different, and for example start from the goodness of the Creator to then understand the goodness of his law?

RPG:  Having taught thousands of intellectually gifted young men and women at Princeton and Harvard over a period of more than thirty-three years, I can tell you that there is a great hunger for authentic reason. We must not misunderstand or underestimate our young people! They are fully capable of reasoning about human nature, the human good, human dignity, and human destiny. They simply need to be invited and encouraged to do it. And they need a certain amount of guidance. Happily, we need not rely exclusively on ourselves to provide that guidance. The great teachers of mankind, from Plato and Aristotle, to St. Augustine and St. Thomas Aquinas, to Rev. Martin Luther King, Elizabeth Anscombe, and Mahatma Gandhi are there to help us and our sons and daughters.  And there are many other great thinkers—from East and West alike—who are available to assist. We begin the process of education simply be exposing our students to these teachers and intellectual role models. Many of my students first learn about the concept of natural law from reading Martin Luther King’s Letter from Birmingham Jail. It teaches them that there must be a “higher law,” a law of reason itself, above the merely human (or positive) law, if unjust laws (such as laws rooted in racism) are to be identified as unjust and condemned as such. Many first encounter the critique of the contraceptive mentality and population control by reading Gandhi. Many are first exposed to the philosophical defense of chastity by reading Anscombe. Those who read John Finnis’s work, especially when complemented by the writings of the Greek philosophers, Roman jurists, and medieval theologians, come to appreciate the intellectual power—and contemporary relevance—of natural-law theory. So, based on my own long experience as a teacher, I scoff at the idea that “the world can no longer understand” the language of natural law. Now, this does not mean that other approaches to instruction in ethics and political philosophy have no place or usefulness. On the contrary, I encourage theological approaches, for example, so long as they are not proposed as the only way to teach ethics, or the only way that students today can be reached. To propose that we must make a definitive choice between natural-law theory and theological approaches to morality and moral questions is to commit the fallacy of proposing false alternatives.

November 14, 2018 | Permalink

Tuesday, November 13, 2018

Disagreeing with the Washington Post editors about statutes of limitations

It is, of course, entirely sensible for Catholic and non-Catholics alike to be angry, even disgusted, at the way many bishops and other Church leaders have mishandled credible allegations of sexual abuse and exploitation by clergy.  However, one response to this mishandling that I believe is sometimes thrown around (not only by trial lawyers but recently and several times by The Washington Post) too cavalierly is lifting/extending/re-opening/etc. statutes of limitations on lawsuits and prosecutions. 

Certainly, it would be unjust to make changes to limitations periods in a way that only affected Catholic clergy or dioceses.   (See this 2005 Mirror of Justice post.) And, these limitations provisions generally have "built in" to themselves or are subject to judge-made tolling rules of various kinds.  The statutes' protections are not and should not be absolute.  But, it is important to remember, that -- like the procedural safeguards we use in all kinds of contexts, including cases involving very serious offenses -- these rules reflect and serve crucial, fundamental due-process and fairness values.  It seems to me that, if they are to be revised, any such revisions should proceed deliberately and fairly, with appropriate consideration of the goods they serve. 

November 13, 2018 in Garnett, Rick | Permalink

CEC Panel on Shield or Spear? The Power of Speech

Apropos of the exchange below concerning liberalism and Catholicism discussed by Rick and Adrian, and in particular with respect to Rick's suggestion that Michael Moreland might represent the missing Murray option, here is a discussion that Michael, Rick, and I had concerning the state of free speech in the US at the conference where all of the other thinking and talking was going on. 

It does not address the central issues of those other interactions directly. But it does so at least obliquely. You can get a sense for some of the range of that disagreement (but also for many areas of agreement) in the different positions that we each hold.

November 13, 2018 in DeGirolami, Marc | Permalink

New paper: "The Sickness Unto Death of the First Amendment"

I’ve posted a new draft, forthcoming in the Harvard Journal of Law and Public Policy: The Sickness Unto Death of the First Amendment. Here is the abstract.

The sickness unto death, in Søren Kierkegaard’s work of the same name, is the anxiety and despair an individual experiences in recognizing that the self is separated from what is collective, extrinsic, or transcendent. Something like this condition now afflicts the First Amendment. The sickness unto death of the First Amendment is that the spectacular success of free speech and religious freedom as American constitutional rights on premises of liberal, individual autonomy has been the very cause of mounting and powerful collective anxiety. The impressive growth of these rights has rendered them fragile, if not actually unsustainable, in their current form. Their unprecedented expansion has brought on an awareness of their emptiness in serving the larger, common political good. The yearning for political community and shared purpose transcending individual interest has in turn generated vigorous calls for First Amendment constriction to promote what are claimed to be higher ends — in some cases ends that were promoted by the hypertrophy of the First Amendment itself.

What binds these claims is the view that expansive First Amendment rights harm others or are more generally socially or politically harmful. In some cases, the same people who argued for the disconnection of free speech rights from common civic ends are now advocating free speech constriction to reconnect free speech to new ends said to be constitutive of the American polity. The same is true for religious freedom. But in a society that is deeply fractured about where the common good lies, imposing new limits on First Amendment rights in the name of dignity, democracy, equality, sexual freedom, third party harm, or any of the other purposes championed by the new constrictors is at least as likely to exacerbate social and civic fragmentation as to reconstitute it.

This paper describes the development of the First Amendment — and in particular of its ends and limits — through three historical periods. Part I concerns early American understandings, which conceived rights of free speech and religious freedom within an overarching framework of natural rights delimited by legislative judgments about the common political good. Part II traces the replacement of that framework with a very different one in the twentieth century, describing the judicial turn toward self-regarding justifications of speech that prioritize individual autonomy, self-actualization, and absolute anti-orthodoxy. The paper describes the crisis or despair of free speech and the coming of the First Amendment constrictors in Part III. It concludes briefly in Part IV by recapitulating the parallel paths of the rights of free speech and religious freedom. It is, in fact, remarkable that over the centuries, some of the most prominent justifications for and objections to the scope of these rights have proceeded pari passu and assumed nearly identical shape.

November 13, 2018 in DeGirolami, Marc | Permalink

More on the Fall Conference, liberalism, and integralism

Here is a substantial post, at the Semiduplex blog, addressing the panel discussion that closed the Notre Dame Center for Ethics & Culture Fall Conference.  I'm still (!) mulling over what I thought about the conversation, but I encourage MOJ readers to watch it (or read about it).  I did have a sense that there was a missing "voice" or perspective, although I'm not entirely sure how to describe the position or stance I'm thinking of.  (Maybe Maritain/Murray/Wojtyla?  Maybe Michael Moreland!)

November 13, 2018 in Garnett, Rick | Permalink

Sunday, November 11, 2018

Thomas Oden

When Whittaker Chambers abandoned communism, he said to his wife “you know, I am leaving the winning side to join the losing side.” When the late Thomas Oden, under the influence of his Jewish friend and academic colleague Will Herberg, abandoned liberal or progressive Christianity to return to Christian orthodoxy, he harbored in his heart no such lament.  He knew that the victory he wanted—the only victory that matters—had already been won. It had been won nearly two thousand years earlier when Jesus offered himself as a sacrifice on a Roman cross at Golgotha for the remission of our sins and was raised by his Father from the dead. Christ’s triumph over sin and death really was, as far as Tom Oden or any other orthodox Christian was or is concerned, the only victory that matters. And that means we can dispense with any thought of being on the right or wrong side of history—the thing theological progressives and, indeed, all progressives worry about—and instead focus our attention, as Tom focused his—once the scales had fallen from his eyes—on getting on the right side of truth, which is to say, getting oneself on to the side of the one who said “I am the way, and the truth, and the life.”

But siding with Jesus for Tom Oden, or for any of us, was and is a costly form of discipleship—especially for those who aspire to professional success in the culture of the contemporary academy.  This is true especially of the theologian. For in an environment of deep and bitter hostility to Christian orthodoxy, the theologian is suspect from the start—simply because of his or her academic field. The temptation for the Christian (or Jewish or other theologian) is to be “purer than the pure”—which is to say, more secular than the secular, more liberal than the liberal—lest one frighten the horses and be made an example of. And yet Tom was willing to take the risk and, if it came to it, make the sacrifice. He was willing to be scorned and rejected, to take up his cross, as it were, and follow Christ.

Why? How?

As an orthodox Christian, Tom possessed and richly exemplified the theological virtue of hope. That was the quality of character that helped enable him to recognize that he was in no sense “joining the losing side.” And yet, he was a realist, a man of the world. He knew that there would be costs to his discipleship, risks, sacrifices. He knew that embracing Christian orthodoxy would render him highly suspect among the very people on whose good opinion his professional standing, future, and prospects for success rested. He knew that his orthodoxy—or what came in his case to be known as paleo-orthodoxy—would cost him professional opportunities and relationships and even treasured friendships. Indeed, because he had, before his change of heart, been a theological liberal—and a well-known and highly credentialed partisan of, and activist for, theological liberalism—he knew he would be regarded not only as a "fundamentalist" but also as a turncoat, a betrayer, the very kind of person who gives theologians a bad name, and who renders them suspect, among their unbelieving academic colleagues.

Moreover, he knew he would lose the standing he had as something of a big wheel in such organizations as the World Council of Churches. These organizations, like many of the denominations associated with them, had done what Tom himself had done. They had retained the forms and institutional structures of Christianity but replaced the substance of the faith with dogmas and practices drawn from secularist ideologies, such as those developed and promoted by figures from Marx and Freud to Beauvoir and Marcuse. In the crucial domain of ethics they had, to a greater or lesser degree, embraced an essentially Benthamite utilitarian view under the label “situation ethics.” Pastoral practice became reduced to secular psychological counseling ("therapy") as Christian content was evacuated from it. Tom had been on board with all of this, but he turned against all of it when he experienced his midlife change of heart. Marx and Freud were replaced by Athanasius and Augustine. The situation ethics of Joseph Fletcher, Tom abandoned in favor of the demanding but ultimately liberating ethics of the Gospel of Jesus Christ.

When it came to pastoral practice—the field in which Tom had built his reputation in his early years--Tom stopped looking to Freud and Carl Rogers and instead turned to Nemesius, Vincent of Nerins, and Gregory the Great. Truly, in the case of what Tom candidly described as his conversion from a form of neo-paganism with a merely Christian veneer to faith in Jesus Christ, his guides—the tools used by God in His providence to bring home a prodigal son--were the early ecumenical councils and the fathers of the Church. The brilliant young man whose early interests were in existential theology of the sort exemplified in the de-mythologizing program of Rudolf Bultmann, came to be shaped intellectually and spiritually by the likes of John Chrysostom and Justin Martyr.

In his moving and remarkable memoir, A Change of Heart, Tom reflected on his intellectual and spiritual odyssey.

I went into ministry,” he said, “to use the Church to elicit political change according to a soft Marxist vision of wealth distribution and proletarian empowerment.”

"I was floating on the wave of secularization. Theologians were undertaking the ironic task of deconstructing the old religion in order to create a new religion. I functioned as a movement theologian, continuously shifting from movement to movement toward whatever new idea I thought might seem to be an acceptable modernization of Christianity.”

For this, Tom would reproach himself intensely. “I had,” he said, “drifted towards a Christ without a cross and a conversion without repentance.”

"Sadly, I had participated directly in the emasculating of many vitalities of the classic religious tradition I had received. In the early 1970s, I became a political penitent, keenly aware of the destructiveness of my former political history . . . I made effort to restore what had been damaged. Conscience required that I do what I could to repair the systems I had harmed."

It is important to understand that Tom did not repudiate every cause in which he had been involved in his earlier years. Above all, he continued to believe in and support the civil rights movement and its efforts to overcome a long and deplorable history of racial prejudice and injustice. He also continued to believe in what he would call “Christian feminism,” an approach to women and relations between the sexes that fully honored the dignity and equality of women while rejecting the sexual revolution and the radical feminism of figures such as Beauvoir and Friedan. In a section of his memoir entitled “Making Reparations,” he says:

"My past visions of vast plans for social change had irreparably harmed many innocents, especially the unborn. The sexually permissive lifestyle, which I had not joined but failed to critique, led to a generation of fatherless children. The political policies I promoted were intended to increase justice by political means but ended in diminishing personal responsibility and freedom. Many of the seemingly humane psychological therapies I had supported may have made people more miserable, less able to choose wisely or to seek the virtues required for happiness."

          Note the words “especially the unborn.” The increasing clarity of Tom’s perception of the inherent and equal worth and dignity of every member of the human family—irrespective of race, ethnicity, or sex, but also irrespective of age, size, stage of development, or condition of disability or dependency—was both a partial cause of his conversion and an effect. Abortion had become a central cultural and political issue in the years leading up to Tom’s change of mind and heart, and initially he supported the practice—something that he would soon regret and truly bitterly reproach himself for.

"Prior to the time of my turnaround, I had been teaching social ethics to young pastors. In classes I had been providing a rationale for their blessing convenience abortions. I had not yet considered the vast implications of its consequences for women, families, and society, but most of all for the lost generation of irretrievably aborted babies. When I tried to explain to God why I had ignored those consequences, the answer kept coming back to me:  no excuse. I had been wrong, wrong, wrong. The situation ethics on which those abortion arguments were made were unprincipled and careless of human life . . . I experienced an overwhelming wave of moral revulsion against the abortion-on-demand laws I had once advocated."

Tom made no excuses for himself. He offered no extenuating circumstances, no mitigating evidence. He was, he says, “wrong, wrong, wrong.” And for his delinquency, he had “no excuses.” Given such profound and sincere repentance, no Christian can doubt that God forgave Tom, and I’m sure that Tom, as I faithful Christian, knew he was forgiven. But he never stopped reproaching himself for the role he had played as an advocate of abortion in exposing unborn children to the lethal violence of deliberate feticide. And he bravely, selflessly, and resolutely sought to rectify the wrong he had done by becoming an advocate within his own denomination (the United Methodist Church) and more broadly for the right to life of the precious child in the womb.

          After his conversion from liberal to classical Christianity (a conversion Tom referred to simply as his conversion to Christianity), his scholarly work came increasingly to focus on the fathers of the Church, especially those from north Africa, such as Athanasius, Augustine, and Cyril of Alexandria. As far as he was concerned, the kind of “progress” in Christian theology that was worth making could best be made by recovering and developing the insights—especially pertaining to pastoral practice, or what Tom called “soul care”—of the great thinkers and teachers of the early Church. Tom also strongly believed in the importance of understanding and appreciating the contributions that Africans had made to the development of Christianity—from the very beginning. And he strongly encouraged African and African-American scholars and religious leaders to assist in the project of deepening our understanding and appreciation of African contributions to Christian theology.

          I’ve referred to Thomas Oden as “Tom” throughout this little reflection because he and I were friends. I got to know him in the early 1990s thorough the good offices of our mutual friend Richard John Neuhaus. I admired him for his intelligence, his integrity, his fierce devotion to truth, and his profound Christian witness. I am grateful to him for many kindnesses. Yesterday I had the pleasure of participating in a conference honoring him at Central Presbyterian Church in New York, where I offered the substance of this reflection. Eternal rest grant unto him, O Lord, and may perpetual light shine upon him.

November 11, 2018 | Permalink

Friday, November 9, 2018

Call for Papers: Notre Dame Center for Social Concerns Catholic Social Tradition Conference

Option for the Poor: Engaging the Social Tradition

2019 Catholic Social Tradition Conference 

March 21–23, 2019 | University of Notre Dame
The Option for the Poor conference will explore how the development and impact of this theological concept from the Latin American Church has been globally embraced by academics and practitioners to build a more just and humane world. If the moral test of society is how it treats vulnerable people, the signs of the times suggest there is significant room for improvement in communities around the world. By assembling experts in Catholic social ethics, the conference seeks to identify social issues and practical responses adequate to address the difficulty of resulting injustices.

Presenters should provide original and creative insights into the systemic problems faced by marginalized populations and how to address them through the lens of the Catholic social tradition. The Center for Social Concerns at the University of Notre Dame requests proposals and creative works regarding the development of the Catholic social tradition in the following areas:

— Historical development and critique of the social doctrine, and how Church mechanisms can support social change

— Identify present social issues and potential solutions in light of the Church’s teaching on the option for the poor

— How the Church can promote social action based on the option for the poor within today’s pluralistic society

Now accepting proposals for papers or creative works. Abstract is limited to 500 words. The deadline for submission is November 30, 2018.

More info here.

November 9, 2018 in Garnett, Rick | Permalink

Notre Dame Center for Ethics & Culture host debate on "Catholicism and the American Project"

[Our own Adrian Vermeule provides this report from the (always excellent) Fall Conference of the Notre Dame Center for Ethics & Culture:]

The Center for Ethics and Culture Hosts the Debate

Last weekend, at an extraordinarily rich and instructive conference hosted by the Center for Ethics and Culture at Notre Dame, the closing panel was a conversation among Patrick Deneen, Phil Munoz, Gladden Pappin and myself, acutely moderated by Carter Snead. The set theme was “Catholicism and the American Project.”

As the video of the discussion shows, each of the panelists interpreted this theme differently and thus began from a different point. Deneen took it to mean “Notre Dame and the American Project,” and began by discussing their relationship. Munoz took it to mean “The American Project and Catholicism,” and began with an explication of the (putative) liberal virtues of the Constitution of 1789. In different ways, both Pappin and myself took it to mean “The Catholic Church and the American Project” — Pappin beginning with a general account of integralism and its relationship to ecclesiology, myself with an attempt to explain Leo XIII’s providential vision for an integral Church in America, and his condemnation(s) of the errors of Americanism.

I won’t indulge myself in any more spoilers, but here is a good straightforward report by Rod Dreher, and a clarifying take from Pater Edmund Waldstein. Enjoy!

November 9, 2018 in Garnett, Rick | Permalink

Tuesday, November 6, 2018

Legal Spirits Podcast: "A British Version of Masterpiece Cakeshop?"

I'm pleased to announce that our Center's new podcast series, Legal Spirits, is underway!

In this first podcast, Mark Movsesian and I chat about the "British Masterpiece" case, Lee v. Ashers Baking Co. decided by the UK Supreme Court a few weeks ago, and we speculate about what its reasoning might suggest for future cases in the US of this kind.

Legal Spirits podcasts will address a broad range of interesting cases, issues, and ideas involving law and religion. Look for our next one about the recent 4th Circuit Establishment Clause cross case just taken by the Supreme Court, the consolidated The American Legion v. American Humanist Association/Maryland-National Capital Park and Planning Commission v. American Humanist Association.

November 6, 2018 in DeGirolami, Marc | Permalink