Mirror of Justice

Pope Benedict XVI on "Church, State & the Practice of Love"

Here is a short essay I wrote, for a conference at Villanova, a million (well, 15) years ago, on Pope Benedict's encyclical Deus caritas est and church-state relations:

In his first encyclical letter, Deus caritas est, Pope Benedict XVI describes the Church as a community of love. In this letter, he explores the organized practice love by and through the Church, and the relationship between this practice, on the one hand, and the Church's commitment to the just ordering of the State and society, on the other. God is love, he writes. This paper considers the implications of this fact for the inescapably complicated nexus of church-state relations in our constitutional order. The specific goal for this paper is to draw from Deus caritas est some insight into what is a fundamental and - at present - the most pressing challenge in church-state law, namely, the preservation of the Church's moral and legal right to govern herself in accord with her own norms and in response to her own calling. It asks, what does the new Pope's work and thinking, about the future and present state of the Church and her organized practice of love, suggest about the appropriate content and vulnerable state of the rights and independence of religious groups - and of the freedom of the Church?

Pope Benedict and the Law: From the MOJ archives

In addition to Marc's two recent and helpful posts, here are a few items from the MOJ archives that might be worth (re!)reading, as we reflect on the gift of the late Pope's life and work:

"Pope Benedict and the New Evangelization" (here)

"Another Garnett on Solidarity and Suffering" (here)

"'The Pope Is a Liberal'" (here)

"Pope Benedict on 'Following the Prevailing Winds'" (here)

"Benedict XVI, Deus Caritas Est, and the Role of the Church in Public Life" (here)

"Benedict XVI on Martin Luther" (here)

"A Mortgage on the Church" (here)

"Pope Benedict XVI on Religious Communities' Freedom and 'Equality Legislation'" (here)

"Pope Benedict XVI's Visit with Youth with Disabilities" (here)

"Forgiveness:  Pope Benedict's Legacy?" (here)

"Ambassador Glendon's Address to Pope Benedict XVI" (here)

"Catholic Legal Thought:  Live at the Dubliner!" (here)

"'Patricipation in the Eternal Reason of God'" (here)

Pope Benedict XVI's Legal Thought

Like all MOJ readers and bloggers, I am sure, I am reflecting on the life, work, example, thought, and witness of the late Pope Benedict XVI.  Of course, I am not qualified to provide anything resembling a worth-reading reflection on these matters -- I suggest reading a lot of Cyril O'Regan, for starters -- but I did want to remind readers of a very helpful volume, edited by my friends Prof. Marta Cartabia and Prof. Andrea Simoncini, called Pope Benedict's XVI Legal Thought:  A Dialogue on the Foundation of Law.  Contributors include (in addition to the editors) Mary Ann Glendon, Andrea Pin, Joseph Weiler, John Witte, and many others.  

Here is the blurb from That Web Site:

Throughout Pope Emeritus Benedict XVI's pontificate he spoke to a range of political, civil, academic, and other cultural authorities. The speeches he delivered in these contexts reveal a striking sensitivity to the fundamental problems of law, justice, and democracy. He often presented a call for Christians to address issues of public ethics such as life, death, and family from what they have in common with other fellow citizens: reason. This book discusses the speeches in which the Pope Emeritus reflected most explicitly on this issue, along with the commentary from a number of distinguished legal scholars. It responds to Benedict's invitation to engage in public discussion on the limits of positivist reason in the domain of law from his address to the Bundestag. Although the topics of each address vary, they nevertheless are joined by a series of core ideas whereby Benedict sketches, unpacks, and develops an organic and coherent way to formulate a “public teaching” on the topic of justice and law.

Caritas in Veritate, paragraph 73

One more reflection from Benedict XVI from me today, this one from perhaps my own favorite of his writings, Caritas in Veritate. This is from the section on the challenges of technology:

Linked to technological development is the increasingly pervasive presence of the means of social communications. It is almost impossible today to imagine the life of the human family without them. For better or for worse, they are so integral a part of life today that it seems quite absurd to maintain that they are neutral — and hence unaffected by any moral considerations concerning people. Often such views, stressing the strictly technical nature of the media, effectively support their subordination to economic interests intent on dominating the market and, not least, to attempts to impose cultural models that serve ideological and political agendas. Given the media's fundamental importance in engineering changes in attitude towards reality and the human person, we must reflect carefully on their influence, especially in regard to the ethical-cultural dimension of globalization and the development of peoples in solidarity. Mirroring what is required for an ethical approach to globalization and development, so too the meaning and purpose of the media must be sought within an anthropological perspective. This means that they can have a civilizing effect not only when, thanks to technological development, they increase the possibilities of communicating information, but above all when they are geared towards a vision of the person and the common good that reflects truly universal values. Just because social communications increase the possibilities of interconnection and the dissemination of ideas, it does not follow that they promote freedom or internationalize development and democracy for all. To achieve goals of this kind, they need to focus on promoting the dignity of persons and peoples, they need to be clearly inspired by charity and placed at the service of truth, of the good, and of natural and supernatural fraternity. In fact, human freedom is intrinsically linked with these higher values. The media can make an important contribution towards the growth in communion of the human family and the ethos of society when they are used to promote universal participation in the common search for what is just.

From the conclusion of Pope Benedict XVI's 2006 Regensburg Address

To mark the occasion of his passing, and to remember this wonderful address. May he rest in peace. 

In the Western world it is widely held that only positivistic reason and the forms of philosophy based on it are universally valid. Yet the world's profoundly religious cultures see this exclusion of the divine from the universality of reason as an attack on their most profound convictions. A reason which is deaf to the divine and which relegates religion into the realm of subcultures is incapable of entering into the dialogue of cultures. At the same time, as I have attempted to show, modern scientific reason with its intrinsically Platonic element bears within itself a question which points beyond itself and beyond the possibilities of its methodology. Modern scientific reason quite simply has to accept the rational structure of matter and the correspondence between our spirit and the prevailing rational structures of nature as a given, on which its methodology has to be based. Yet the question why this has to be so is a real question, and one which has to be remanded by the natural sciences to other modes and planes of thought - to philosophy and theology. For philosophy and, albeit in a different way, for theology, listening to the great experiences and insights of the religious traditions of humanity, and those of the Christian faith in particular, is a source of knowledge, and to ignore it would be an unacceptable restriction of our listening and responding. Here I am reminded of something Socrates said to Phaedo. In their earlier conversations, many false philosophical opinions had been raised, and so Socrates says: "It would be easily understandable if someone became so annoyed at all these false notions that for the rest of his life he despised and mocked all talk about being - but in this way he would be deprived of the truth of existence and would suffer a great loss". The West has long been endangered by this aversion to the questions which underlie its rationality, and can only suffer great harm thereby. The courage to engage the whole breadth of reason, and not the denial of its grandeur - this is the programme with which a theology grounded in Biblical faith enters into the debates of our time. "Not to act reasonably, not to act with logos, is contrary to the nature of God", said Manuel II, according to his Christian understanding of God, in response to his Persian interlocutor. It is to this great logos, to this breadth of reason, that we invite our partners in the dialogue of cultures. To rediscover it constantly is the great task of the university.

"Constitutional Thomism: A Modest Proposal"

Over at The European Conservative, my friend Fr. S. Hendrianto, S.J., has posted an essay called "Constitutional Thomism:  A Modest Proposal", which -- among other things -- engages Adrian Vermeule's Common Good Constitutionalism project.  Here's a bit:

Constitutional Thomism is not concerned with governmental structures or constitutional interpretation so much as with the arrangement and distribution of offices. It focuses on examining the concept of a “best regime” ruled by a philosopher-king who holds office with practical wisdom while not devolving into a tyranny. Constitutional Thomism is compatible with modern constitutional democracy because both are centered on the art of statesmanship. Under Constitutional Thomism, statesmen rule through wisdom but do not force the citizenry to obey them. These statesmen must understand the instability, impatience, inattention, envy, and ignorance that plague the souls of their citizens, and counteract the restlessness of the soul. At the same time, the statesmen must also be able to lead their citizens to an understanding of the common good, not only in the temporal sense, but fullest sense—the seeking of God. By promoting the common good to their people, the statesmen will also foster statesmanship among the multitude. 

Merry Christmas! T.S. Eliot's "Animula," First Part

Merry Christmas, MOJ family! Here's the beginning of T.S. Eliot's "Animula" (little soul), about the child's life of wonder as it comes into and makes its early way in the world.

'Issues from the hand of God, the simple soul'
To a flat world of changing lights and noise,
To light, dark, dry or damp, chilly or warm;
Moving between the legs of tables and of chairs,
Rising or falling, grasping at kisses and toys,
Advancing boldly, sudden to take alarm,
Retreating to the corner of arm and knee,
Eager to be reassured, taking pleasure
In the fragrant brilliance of the Christmas tree,
Pleasure in the wind, the sunlight and the sea;
Studies the sunlit pattern on the floor
And running stags around a silver tray;
Confounds the actual and the fanciful,
Content with playing-cards and kings and queens,
What the fairies do and what the servants say.

Podcast on New Year's Day, New York Blue Laws, and the Establishment Clause

And speaking of culture warriors, usually around this time of year one sees the standard, angry Establishment Clause challenge to a Christmas tree or nativity scene positioned in the wrong place, or a Stabat Mater sung in the wrong school concert. I'm sure those are also being pursued, according to the culture warrior tradition.

But this year, there is a different kind of Establishment Clause complaint in New York. The wasted remnant of an old blue law, which has been dismembered bit by bit over the years, is not making bar owners' spirits bright. Eris Evolution, a hipster bar in Brooklyn whose name recalls the Greek goddess of misery and discord, would like to serve alcohol from 4-8AM on January 1. But it happens to be a Sunday this year. 

Mark and I chat about an EDNY district court opinion in the case denying an injunction to the bar, now up on appeal, in our last Legal Spirits podcast of the year. 

More "culture warrior" sloganeering, on religious exemptions

Paul Moses has a piece up at Commonweal, "Conscience, Contracts, & Covenants", about the recently argued 303 Creative case at the Supreme Court and about the more general question of religious-freedom-related exemptions from public-accommodations laws.  Obviously, the question is tricky, because it is implausible either that (a) justice requires that anyone who invokes "conscience" as a reason for violating a public-accommodations law should be exempted or (b) public-accommodations laws should be applied entirely without regard to the religious commitments of those who are affected.

Disagreeing with the U.S. Bishops' reservations about the recently passed Respect for Marriage Act, Mr. Moses quotes Pope Francis's Amoris laetitia, and then writes, "Francis wasn’t urging the bishops to be culture warriors. He was calling on the Church to do more to realize and express the beauty of a sacramental marriage, rather than to impose rules on others."  Again:  Far too often, the "culture warrior" epithet is directed at anyone who observes that unjust laws are being enacted or that various regrettable culture trends are in motion.  It is not "culture warrior"-ing for the bishops to defend religious exemptions, and it is a misreading of the Holy Father -- who, obviously, understands that Christians today cannot expect positive law alone to communicate persuasively the soundness of the Christian understanding of marriage -- to read him as ruling out such a defense.

Gehring's (and Kaveny's) "Culture Warrior" Canard

John Gehring has published, in NCR, a long piece describing the career and views of Leonard Leo.  (I am quoted in the piece.)  Leo, it turns out, is both a practicing Catholic and a political conservative, and he has been successful as an institution builder and fundraiser.  He's connected, in various ways, with the Becket Fund, the Federalist Society, Catholic University's business school, etc.  Some, including Gehring and several sources, are troubled by the fact that Leo's causes tend to be on the conservative side of various debates, and also by the possibility that he is "reshaping" Catholic University.  Such a reshaping would run counter, it appears, to what some regard as the natural order of things, namely, that higher education -- including Catholic higher education -- is and must be homogenously progressive.

A theme in the piece is the charge that Leo and others are "culture warriors", using organizations like The Federalist Society and "originalist" constitutional arguments in their partisan efforts.  Near the end, Prof. Cathleen Kaveny, who was on the faculty at Notre Dame Law School for about 15 years, is quoted:

"It's an approach that is far more evangelical and fundamentalist than Catholic," Kaveny said. "If Catholics approached the Bible the way these originalists view the Constitution, we would be fundamentalists."

A former law professor at the University of Notre Dame, Kaveny watched as the school transformed and she glimpses a potential similar effort at Catholic University with Leo's influence.

"At Notre Dame Law School, they narrowed the notion of Catholic hiring to mean hiring a certain kind of Catholic who is committed to the culture wars," Kaveny said. "They hired very committed and talented people, and the money followed. It took 30 years, but they played the long game. And it was successful."

Prof. Kaveny should know better than to make the familiar, but inapposite, comparison between originalism as an approach to the interpretation of a written piece of positive law and "fundamentalism" as an approach to Scripture.  She is certainly correct, though, that, during her tenure at Notre Dame Law School and mine, the institution hired a great many "committed and talented people", from the best programs and firms in the country, in no small part because the school, unlike nearly every other, declined to discriminate against practicing Catholics or people who might have clerked for Republican-appointed judges.  Indeed, Kaveny herself was brought to the faculty, and promoted, as part of the John Garvey-led (and successful) effort to use Notre Dame's Catholic character as a brand-enhancer and program-strengthener.  Of course, the claim that the "notion of Catholic hiring" was "narrowed" in the way she suggests is false -- the law faculty is easily the most balanced in the United States (and also in the University) -- as even a casual review of faculty hires over the last 25 years will confirm.

It's common, in publications like NCR, for "culture warrior" to used as a discussion-blocking epithet (though never against enthusiasts and activists on the political left).  It appears to mean little more than "someone who thinks that Roe v. Wade was wrongly decided and that religious freedom is an important human good", or "someone who takes notice of various cultural developments and trends."  Or, in a piece like Gehring's, it simply denotes "someone who is pursuing an understanding of the common good that does not align with my political team's."