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.

Monday, May 17, 2021

Our Common Human Nature at the Common Good Project

I spoke with the conveners of the Common Good Project at Oxford Law this past week on the priority of duties, virtue and the common good in Mary Wollstonecraft's theory of rights. Here's the basic claim I work through in the talk (and also one I take up in my new book):

I think that Wollstonecraft can specially help us to understand the common good today because the case she made for women’s rights in 1792 was based not upon liberal conceptions of pre-political, autonomous man (and I do mean man), as today’s claims for rights tend to be. Rather, her case was grounded in the common human nature women and men share, a nature she understood to be ordered to wisdom and virtue, human excellences that took their bearing, in her thought, from the singular wisdom and goodness of God.

You can watch it here.

May 17, 2021 in Bachiochi, Erika | Permalink

Saturday, May 15, 2021

Bess on "The Architecture of an Urbanist Natural Law Principle"

Longtime MOJ readers might remember that I am a fan of my colleague (and others') work connecting urbanism/architecture with Christian anthropological claims.  Here is a new essay by Bess, in the (great) Church Life Journal, called "The Architecture of an Urbanist Natural Law Principle."  Among other things, Bess engages Pope Francis's encyclical Laudato Si'.  Bess notes:

The fundamental anthropological assumption of Laudato Si’ is that the human being is most truly understood as an intermediate being, both part of and transcending the natural order. This mediating status affords human beings both objective privileges and objective obligations of stewardship, but a strong and pervasive obstacle hampers our stewardship.

Bess then works from this assumption to some "thoughts about an integral human ecology at a scale less-than-global, less-than-national, but greater-than-a-building: viz., the scale of an integral local human ecology, the scale of cities and their adjacent landscapes."  Check it out.


May 15, 2021 in Garnett, Rick | Permalink

Friday, May 14, 2021

Friedlander's illumination of the shades of Brennanism & a gesture toward Brennan's Rooneyism

A recent exchange on Twitter provides another fitting occasion to re-up this illuminating exposition of Justice William Brennan's "shadow theology" from a few decades ago: Joel E. Friedlander, Constitution and Kulturkampf: A Reading of the Shadow Theology of Justice Brennan, 140 U. Pa. L. Rev. 1049 (1992).

Friedlander situates Brennan as rejecting classical natural law jurisprudence even while invoking its "spirit":

Justice Brennan offers a distinctive approach to modern constitutional problems. To confront the necessities of the present he dispenses with the positivist tradition and looks further back into history. Rather than resuscitating the classical natural law tradition, he invokes its spirit. This approach creates its own difficult questions. Is any aspect of the law fixed or must all laws bend to conform to the given world? Can the "new jurisprudence" find answers in the social sciences as the old natural law jurisprudence found them in theology and philosophy? There is the new danger that Justice Brennan's jurisprudence masks itself in a tradition that is not its own, and that its principles are merely empty abstractions that hide a deep skepticism about the binding character of law.

Friedlander's exposition is an extended exploration of  "a vacuum in [Brennan's] sociology." In particular, Friedlander studies Brennan's "precept of progress in the service of unity." Departing from the classical natural law tradition, Brennan's outlook was shaped by his perception of "the constitutional ideal of libertarian dignity protected through law." This dignity, to be sure, is the dignity of the individual, not one that reflects a classical natural law conception of the common good. 

Friedlander notes Brennan's regular reliance on a 1964 ABA committee report: Miriam T. Rooney, Report of Committee on Comparative Jurisprudence and Legal Philosophy, 1964 A.B.A. Sec. Int'l & Comp. L. 195. In describing his own judicial outlook, Brennan ambiguously situates the "new jurisprudence" discussed in this 1964 report vis-a-vis "the philosophy of St. Thomas Aquinas." Here's Friedlander:

Justice Brennan confronts three distinct jurisprudential problems: a changing society, the legacy of positivism, and the inadequacy of positivist jurisprudence when confronted by social change. He is both attracted to and repelled by the model of law prior to the nineteenth century, when natural law theory was dominant. At that time "law was merged, perhaps too thoroughly, with the other disciplines and sources of human value." "Custom," says Justice Brennan, "was the cherished source of the common law." 

Justice Brennan does not specify why custom is an inadequate grounding for law today. Is it because discontinuities in legal theorizing have left us with a legal inheritance in which precedent is uninformed by the value of custom, or because a changing society cannot rely upon custom even if it were contained in our constitutional law? Justice Brennan suggests the latter: "Just as we have learned that what our constitutional fundamentals meant to the wisdom of other times cannot be the measure to the vision of our time; similarly, what those fundamentals mean for us, our descendants will learn, cannot be the measure to the vision of their time." 

Seeking wisdom and dismissing custom, Justice Brennan is not without other "sources of human value" upon which to draw. In both speeches, he quotes approvingly from a bar association report that traces the historical development of legal thought from positivism to sociological jurisprudence to the "New Realism" school and, finally, to a "new jurisprudence," which "[i]n a scientific age... asks, in effect, what is the nature of man, and what is the nature of the universe with which he is confronted .... Why is a human being important; what gives him dignity; what limits his freedom to do whatever he likes; what are his essential needs; whence comes his sense of injustice?"

Most interesting about this interrogative mode of jurisprudence is Justice Brennan's reaction to it. In two sentences remarkable in their tentativeness, he notes, "[p]erhaps some of you may detect, as I think I do, a return to the philosophy of St. Thomas Aquinas in the new jurisprudence. Call it a resurgence, if you will, of concepts of natural law-but no matter." This "new jurisprudence," like that of St. Thomas, is also in agreement with the Aristotelian and Platonic traditions.' In its concern for "seeing things whole ... [it] draws its validity from its position in the entire scheme of things." The answers to the posited questions are not discussed by Justice Brennan. The bar report from which Justice Brennan quotes does continue, however. It discusses two books based on a "Document... of the Holy Office ... , which underlines 'among the possible areas of harmonious cooperation with non-Catholic Christians, the joint vindication of ideas based on the natural law and the heritage common to all Christians.' "

Brennan's continued use of this report evidences one way in which important strands in American constitutional law—those represented by Brennan and Scalia, respectively—emerge out of the American Catholic experience of two New Jersey natives as filtered through post-WWII Catholicism and various camps surrounding Vatican II, Humanae Vitae, and so on. through the 60s, 70s, and 80s. 

Another New Jersey Catholic perspective at work in the report came from the report's author, Miriam Theresa Rooney. Born in Charlestown and educated at Girls' Latin High School in Boston, Rooney was one of the first women law professors in the United States and the founding Dean of Seton Hall Law School. "An American Catholic original," as a Seton Hall biographical sketch describes Rooney, calls to mind now the first words of the title of Joan Biskupic's biography of Scalia, "American Original." At the time of Rooney's 1964 committee report, Brennan was captaining important Warren Court decisions and Scalia was practicing law in Ohio; Brennan was putting together a coalition for Griswold v. Connecticut while Scalia was starting a family.

May 14, 2021 in Walsh, Kevin | Permalink

Tuesday, May 11, 2021

Video: What you need to know about the Supreme Court’s biggest religion case this term

The Supreme Court’s top religion case this term focuses on faith-based foster care services, but it may hold implications for a much wider variety of religiously motivated work.

In Fulton v. Philadelphia, justices have an opportunity to clarify when the government must accommodate religious objectors, a move that could make it easier for faith-based organizations to operate according to their beliefs.

Kelsey Dallas speaks with Lori Windham, senior counsel at Becket, about Fulton v. Philadelphia: https://www.deseret.com/faith/2021/5/9/22408153/what-you-need-to-know-about-the-supreme-court-biggest-religion-case-this-term-fulton-v-philadelphia

May 11, 2021 | Permalink

Friday, May 7, 2021

Program on Church, State & Society Announces 2021 Writing Competition Winners

The Program on Church, State & Society at Notre Dame Law School is pleased to announce the results of our first annual writing competition. Open to law students nationwide, as well as recent law graduates not yet practicing law, the competition seeks to encourage scholarship related to the intersection of church, state & society, and in particular how the law structures and governs that intersection. This year’s winners and honorees were selected from a pool of very impressive essays:


First place: Civics in Yiddish: State Regulation of Language Instruction in New York’s Private Schools

Author: Stephen Rutman

Institution: Fordham University School of Law


Second place: Qualified Immunity and Religious Liberty

Author: Jacob Tyler Young

Institution: University of Virginia School of Law


Third place: Catholic Social Thought and the Role of the Prosecutor

Author: Zachary B. Pohlman

Institution: Notre Dame Law School


Honorable Mention: The SBA; Saving Biblical Affiliates

Author: Roxanne Reinfeld

Institution: University of Saint Thomas


Honorable Mention: Can the Reasonable Person Be Religious?

Author: Jack Vallar

Institution: University of Virginia School of Law


Fordham University School of Law 2L, Stephen Rutman, was awarded first place for his essay, Civics in Yiddish: State Regulation of Language Instruction in New York’s Private Schools. “ I am honored by the selection of my paper by the Notre Dame Program on Church, State & Society. My paper evaluates the constitutionality of recently proposed rules to heighten enforcement of New York’s requirement that private and parochial schools provide instruction “substantially equivalent” to the instruction offered in surrounding public schools. This award reflects the importance of this issue, which could significantly affect religious parents’ rights to direct the education of their children. I am particularly grateful to the Fordham Urban Law Journal, which will be publishing this piece and to Professor Aaron Saiger, who advised me in the project,” said Rutman.

Professor Richard W. Garnett, the Paul J. Schierl/Fort Howard Corporation Professor of Law and Director of the Program on Church, State & Society judged the essays. "The Notre Dame Program on Church, State & Society is pleased and proud to be able to honor a group of student-scholars who have produced outstanding studies of timely and interesting religious-freedom topics.  Dozens of strong papers were submitted for consideration, and we are confident that all who submitted will enrich the law-and-religion conversation," said Garnett.

The Program on Church, State & Society hopes to continue the writing competition. Details will be announced this coming fall. The primary goal of our Program is to enhance the law school experience for all Notre Dame law students interested in issues related to law & religion and religious liberty. Current and prospective students can learn more about Program offerings by contacting Jonathan Hannah, JD at [email protected]


May 7, 2021 | Permalink

"Magisterial Discontents: A Symposium on Catholic Social Thought"

The Law and Liberty website has collected four essays on "the state of CST, and what we ought to make of its ideas."  Check them out.

May 7, 2021 in Garnett, Rick | Permalink

Wednesday, May 5, 2021

Former U.S. Ambassador to the Holy See Mary Ann Glendon to speak at ND Law School

I’m very excited to announce that we have rescheduled the inaugural Rice-Hasson lecture with Ambassador Glendon. 

Mary Ann Glendon, the Learned Hand Professor of Law, emeritus, at Harvard Law School and a former U.S. Ambassador to the Holy See, will be the inaugural speaker for the Rice-Hasson Distinguished Lecture Series at Notre Dame Law School on Wednesday, November 17, 2021.


May 5, 2021 | Permalink

Tuesday, May 4, 2021

Faggioli's partisanship

Regular MOJ readers probably recall that I think Prof. Massimo Faggioli (Villanova) tends to view matters through an overly ideological and/or partisan lens.  This recent piece, in Commonweal, supports my view, I think.  It's a dog's-breakfast, but the theme seems to be that the Catholic bishops in the United States should be saying more about election-related laws and, more important, saying things with which Prof. Faggioli agrees.  (Their asserted failure to do so is seen as Trumpy, money-ish, etc.)  The term "democracy" is used imprecisely, and tactically and, somehow, the concluding paragraph ends up with something about President Biden's pick for ambassador to the Holy See.

(Much) more interesting -- and Commonweal is the kind of venue that could do this -- would be informed discussion about what, exactly, "democracy" is, involves, and requires . . . and what Catholics committed to the Church's social teaching should think about it.  For example:  I am confident that Prof. Faggioli wants the (unelected) members of the Supreme Court of the United States to invalidate various legislative and executive decision.  (So do I.)  Is this "democratic"?  I infer that he thinks some counter-majoritarian features of American constitutional democracy are icky (e.g., the Senate).  Why?  Various legislative measure that require, say, presenting legally valid identification before voting are analogized to "the anti-liberal turn in Hungary . . . "  Really?

Then there's this, which is just silly:

The USCCB is an episcopate that is culturally and theologically a fruit of John Paul II’s pontificate, and, until the 1980s at least, it was receptive of the teaching of the Second Vatican Council on the Church and politics. Now we have to wonder what remains of Vatican II’s impact on Church-state relations, religious liberty, and political participation.

The USCCB's proposals and statements on these latter matters are, entirely, consistent with Dignitatis humanae.  What is not consistent with Vatican II is the emerging view, which Prof. Faggioli seems to endorse, that the Church should, in order to avoid being tarred as a "culture warrior", submit to unlawful regulation of her internal affairs.

May 4, 2021 in Garnett, Rick | Permalink | Comments (0)

Monday, May 3, 2021

Henry Garnet, S.J., RIP

On this day, in 1606, Henry Garnet, S.J. was hanged by St. Paul's Cathedral in London.  (The crowd reportedly pulled on his legs, during the hanging, so that he would die before the usual disemboweling.)  He was a student of Robert Bellarmine and had been, for some time, the head of the Jesuit mission in England, and he was executed for (in addition, of course, the offense of being a Jesuit in England) failing to reveal his (alleged) knowledge of some details of the "Gunpowder Plot."  (In Macbeth, Shakespeare mocks Garnet, by reference, as the "equivocator.")   Ora pro nobis. 

Father Henry Garnett



May 3, 2021 in Garnett, Rick | Permalink

Saturday, May 1, 2021

Q&A with Daniel Philpott

Daniel Philpott, Professor of Political Science at the University of Notre Dame and a faculty fellow of the Ansari Institute, is the recipient of the 2021 Religion and International Studies Distinguished Scholar Award.

The honor, given by the Religion and International Section of the International Studies Association, recognizes his pioneering contributions over 25 years as one of the earliest scholars of the “religious turn” in the study of international relations.

In this conversation, Philpott explores the topics that have animated his scholarship, including reconciliation, democratization, and religious freedom, as well as his international activist work on faith-based reconciliation.

Interview from Notre Dame’s Ansari Institute: https://ansari.nd.edu/news-events/news/a-q-a-with-faculty-fellow-daniel-philpott/

May 1, 2021 | Permalink