Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Tuesday, December 18, 2018

The death penalty, the development of Catholic doctrine, and judging doctrines and persons

The growing number of those who claim that Pope Francis is making a mess of things can hardly be accused of disrespecting the Roman Pontiff.  After all, it was Francis himself who in July 2013 famously said, "I want a mess."  I count myself among those who prudently suspect most of this Pope's "off the cuff" remarks of being more planned than spontaneous, much like the reliable presence of professional photographers when from time to time Cardinal Bergoglio took public transportation in Buenos Aires. Far from disrespecting the Pope, those who positively credit Francis with making a mess are guilty of sycophancy of an odd sort; messes are usually to be avoided, but this Pope's promoters are programatically pleased to attach themselves to his mess making.   

Disrespect and sycophancy aren't the only available postures, however.  A middle way would be respectfully to call upon Pope Francis to speak clearly and authoritatively on the matters of faith and morals that pertain to the exercise of the Petrine munus and otherwise to speak with the modesty befitting a monarch.  Previous Popes almost always knew how both things were to be done.  And the evidence (as collected by Henry Sire, for example) is that this Pope, author of that undefined novelty "synodality," does indeed see himself as a monarch, but some commentators have reasonably asked whether he isn't one masquerading, less and less successfully, as a populist in the Peronist model.  I remain of the traditional Catholic view that the Roman Pontiff is in fact constituted, by virtue of his office, as a monarch in his potestas, the current "mess" notwithstanding.

Which brings me to my present point, concerning Pope Francis's prepared statement and off-the-cuff remarks to the "International Commission against the Death Penalty" on December 17th.  The mess of confusion in what the Pope wrote and said does not allow us to pretend any longer that this Pope is not saying -- as clearly as he is likely to say it -- that he himself is in fact teaching a development of Catholic doctrine concerning the civil authority's right to execute persons.  But exactly what doctrine Francis has in mind, however, remains to be specified, and in specifiying it we should of course apply a hermeneutic of charity. 

Pope Francis himself helps by making unmistakably clear that sometimes the civil authority will have not only the right but also the duty to execute persons for the valid purpose of defending persons for whom the state is responsible.  This reaffirmation of the Church's teaching on self-defense is to be welcomed, even if it could have been accomplished in far more precise terms and concepts than the available texts and transcripts indicate.  But what Pope Francis seems now to have ruled out as always "inadmissible" is the state's executing a person for the purpose of applying a just (and therefore proportionate) penalty or punishment to a person duly convicted of a crime. 

What Pope Francis seems to be teaching is that, even when applied for the generally valid purpose of deterrence and to a duly convicted person to whom a proportionate penalty is due, the death penalty is always and everywhere immoral because it violates human dignity.  How executing in valid (and therefore proportionate) defense of persons is not a violation of human dignity, whereas executing a duly convicted wrongdoer as a punishment always and everywhere is a violation of human dignity, is an apparent contradiction that is not explained away.  Human dignity per se cannot be a good and sufficient reason not to kill a person if, as the Pope rather clearly states, self-defense, even including by killing a person, is sometimes both a right and a duty.

Setting this profound difficulty aside for the moment, I would like to conclude here with a different but deeply related line of inquiry, one that concerns Pope Francis's invitation, on December 17th in the remarks I have just been discussing, regarding how to judge (sic) those who in the past taught that the death penalty was in some cases morally acceptable:  

In past centuries, when the instruments available to us today for the protection of society were lacking and the present level of development of human rights had not yet been reached, recourse to the death penalty was sometimes presented as a logical and just consequence. Even in the Pontifical State this inhuman form of punishment has been resorted to, ignoring the primacy of mercy over justice.

This is why the new wording of the Catechism implies also assuming our responsibility for the past and recognizing that the acceptance of this form of punishment was the consequence of a contemporary mentality, more legalistic than Christian, which sacralized the value of laws lacking in humanity and mercy. The Church could not remain in a neutral position in the face of today’s demands to reaffirm personal dignity.

What are we to say about those persons, including the Popes, who accepted -- in the sense of authoritatively teaching the in-principle moral uprightness of -- the death penalty as, in Pope Francis's words, "the consequence of a contemporary mentality" (italics added)?  The then-contemporary morality was in fact, we are told by Pope Francis, immoral.  But how are we to think about the possible culpability of the Popes and everyone else (from the Fathers of the Church through and including Pope Benedict XVI) in teaching the in-principle morality of the death penalty as punishment?  It will not do to exonerate them, if indeed they need exonerating for holding and teaching allegedly objectively incorrect moral views, to say that their holding and teaching them was a "consequence" of the (defective) culture in which they lived.  It is the very possibility of human free choice, obviously, that makes moral assessment possible, and it would add the proverbial insult to injury to claim that our forebears weren't choosers but, in the relevant respect, "consequences."  What, after all, allowed Pope Francis the putative insight that the death penalty long approved by his Predecessors is, was, always has been, and always and everywhere will be in fact morally evil?

One set of answers to the complex questions about how to judge in the case of legitimate development of doctrine is provided by Judge John T. Noonan, Jr. (1926-2017).  Here is the crux of it:  "St Augustine and St. Thomas Aquinas were defenders of the lawfulness of human slavery and of the rightness of religious persecution.  Are we in a position to judge them as teachers of unjust doctrine?  It is evident, I believe, that if each generation is free to measure its predecessors morally, using the criteria now accepted, no one will escape condemnation.  We must be judged by the moral criteria we know.  Judgment of the status of past moral doctrine presents a different question." (Noonan, A Church that Can and Cannot Change, 200-01). 

Noonan thus suggests that persons should be judged by the moral criteria they knew, perhaps even the then-familiar "mentality," whereas doctrines must be judged, as Noonan elaborates in passages I have not quoted above, according to their conformity to the person of Christ.  But is it an exhaustive dilemma between persons-as-implementers-of-then-contemporary moral-criteria and doctrines-as-subjects-of-evaluation-according-to-transcendent-criteria?  I think not.  Those who press for valid development of doctrine are themselves engaging in morally praiseworthy, one might even say prophetic, witness.  But prophecy is risky business.  False prophets exponentially outnumber true prophets. 

What then of those who press for invalid "development" of doctrine?  The Catholic understanding is that valid development of doctrine occurs when what was implicit in the depositum Fidei is authoritatively made explicit.  In the face of a purported development that amounts in fact to no more than a comparatively attractive personal opinion, the judgment that cannot be blinked is that the purported doctrine, however attractive and no matter the sincerity of its proponent, is in fact false qua development of doctrine.  

The other judgment, however, concerns the culpability of the falsifier.  Here I think of something else Noonan wrote in the same vein, the valid development of doctrine:  "The Modernists took the idea of development and ran away with it.  Doctrine became the projection of human needs, changing in response to those needs. Control of doctrine by the objective content of revelation disappeared. . . . The Modernist position that human needs will shape doctrine carries the cost of eliminating any objective content; it is, as Pius X put it, 'the synthesis of all the heresies.'"  (Noonan, "Development in Moral Doctrine," 54 Theological Studies 662, 671-72 (1993) (citations, including to Pascendi (1907), omitted).  Noonan's touchstone, divine revelation in Scripture, of course establishes the moral rectitude of capital punishment in some circumstances.  See Edward Feser's work here

Even in December we can join Pope Francis in his prayer intention for this past October: "St. Michael the Archangel, defend us in battle."  The Modernists took the idea of development and ran away with it.

December 18, 2018 in Brennan, Patrick | Permalink

Thursday, November 29, 2018

The police in the chanceries

As most readers already know, the forces of "the state" in the form of police officers, even Texas Rangers, spent some twelve hours yesterday rooting around inside the Houston Chancery in what the same Chancery does not want to hear called a "raid."  The non-raid, prosecutorial action for records related to clergy sex was, as most readers also already know, of the home-base of the president of the U.S. Conference of Catholic Bishops, Cardinal DiNardo. 

This latest prosecutorial investigation of the Church for things having to do with clergy sex abuse is just one among a large and doubtless soon-to-grow number of similar legal actions across the country: at least fourteen states, the District of Columbia, and the U.S. Department of Justice in what could well become a nationwide investigation and prosecution.  That Pope Francis, acting through the Congregation for Bishops, recently directed the USCCB not to vote on its planned reforms "to hold bishops more accountable," as the agenda items were often described by the press, could conceivably end up having emphatically-unintended legal consequence in the possible federal case against the Church.  The Vatican's stated reason for disallowing the USCCB's planned vote was the meeting Pope Francis had already called for in in Rome in February to address "clergy sex abuse" and related issues on a universal scale. 

As to that "meeting," I am deeply sympathetic to the need for universal Church governance on these issues, and I hope Pope Francis, who after all is the man in charge, will finally provide the rules and enforcement that are necessary to begin to get the wrongs righted and the ship turned closer to the right direction.  I'm not immediately hopeful, however. 

Consider that when Archbishop McCarrick belatedly "resigned" from the College of Cardinals at the end of July, the Vatican's one promise was that McCarrick would be subject to a canonical trial for his alleged crimes.  But, as the Washington Post reported last week (Nov. 23), there is zero evidence that that trial, the mere public beginning of which could begin to repair some broken trust, will ever occur.  It may well occur, but who knows?  There is an easy, available, if imperfect, point of comparison in recent Church history.  When Pope Benedict's butler committed his crime ("aggravated theft"), the butler got a speedy, public canonical trial that the Vatican was eager for the world to witness and take note of.  At the very least, we can say that McCarrick is not getting anything resembling a speedy trial, and there are of course plenty of possible reasons, some of them sinister, for the slow, if any, progress in bringing McCarrick to canonical justice. 

Meanwhile, McCarrick is an old man (88),  and there is ample reason to suppose that the Vatican has little interest in having all the facts possibly at issue in his trial spread upon the record.  It's worth noting in this connection that those who wag their finger and point to Archbishop Vigano's violation of the pontifical secret rarely then draw the obvious practical conclusion that  Archbishop Vigano should be put on canonical trial.  As with McCarrick, can you even imagine what would come out in that court room for the world then to have to face?   Pope Francis will "not say one word" about Vigano's actions and un-refuted allegations, but he also will not cause his legal system at Rome to bring the law-breaking Archbishop to trial.  Why should not Vigano, like McCarrick, be tried for his alleged crime(s)?  (Of course, there is arguably good reason to conclude that Vigano should not be tried because in his case the positive law of the Church was displaced by the demands of higher law, but that's another question and it is emphatically not the position the Vatican has taken in not prosecuting Vigano).

All of which, along with so much more to the same effect in the recent news, brings me to my present point: "in the interest of public utility, crimes ought not remain unpunished" ("publicae utilitas intersit, ne crimina remaneant impunita").  This doctrine, first stated by Pope Innocent III in 1203, was an essential part of the Church's way of authorizing secular governments to create penal systems and punish criminals.  This new doctrine, as Richard Fraher has written, "helped to justify the [then] nontraditional punitive measures which communal governments enacted to ensure stability and curb violence in the new city-states."  Fraher continues:  "the motivation behind the development of the new criminal procedures . . . was the perceived need for efficient enforcement of the canon law, for the purpose of deterring deviant behavior."   And, lest anyone wonder, the historical record makes perfectly clear that deviant, criminal behavior by members of the clergy was crucial in the Church's decisions, as in 1203, sometimes to defer to the secular government in enforcing the criminal law.

Innocent III's accommodation of 1203 is just one example of the Church's out-sourcing some of the dirty work the Church, like the state, wanted, with good reason, to see done and done reasonably well, granted by all concerned that secular justice would fall short of the understood higher demands of higher law.  From Pennsylvania and New York and Texas and probably soon to California, the states are doing work the Church has long relied on them to do.

To be sure, however, what the states are doing today is done against a radically different Church-state "balance" than any Innocent III could have imagined in his worst nightmares.  But, as I have long insisted, at the heart of the problem has been the Church's refusal to follow and enforce her own law.  It wasn't groovy for "the Church of accompaniment" even to acknowledge the Church's legal power over her members, let alone to threaten penal remedies and sometimes enforce them.  But it was the "accompaniment" model that was at work when "Uncle Ted" was spiriting young men off to his long-notorious shore house.  

"The Church of accompaniment" failed us, all of us: the victims, first of all and foremost, but also all the rest of us who were owed a Church that was governed the way Christ intended his shepherds to safeguard the faithful.   So, while I am distressed by pictures of the police raiding one chancery after another, I am relieved and grateful to see the state starting to do for men, women, and children what the ministers of the Church have so miserably failed to do.  

"The Church has its own inherent right [nativum et proprium Ecclesiae ius] to constrain with penal sanctions Christ's faithful who commit offences."  CIC  can. 1311.  The U.S. bishops have acknowledged their awareness that "the McCarrick case" deeply troubles the American faithful, as it should.  When will the Church exercise the duty correlative to her right "to constrain with penal sanctions" in the case of McCarrick, appropriate sanctions not approached by his current life of comparatively comfortable exile in an obscure Kansas Friary?  Why exactly has McCarrick not been reduced to the lay state?  Only Rome can accomplish the available justice in the McCarrick case.  Will it?  McCarrick has still not so much as offered a public apology, only a denial.  

  

November 29, 2018 in Brennan, Patrick | Permalink

Thursday, September 6, 2018

Forgiveness no matter what (but not necessarily reconciliation)

Forgiveness is the demand of the Gospel that can be the hardest to meet, at least when forgiveness is undertaken with the seriousness of purpose the Gospel and most of the Christian tradition understand it to require.  But what constitutes the act we call "forgiveness?" I attempt to answer this question in a paper I have just posted, Forgiveness No Matter What: Justice and Love among Equals, the abstract of which appears below.   

My argument for forgiveness "no matter what" does not imply, let alone entail, that those who forgive as they should should also reconcile with those they forgive.  Current events make it timely to be clear on where forgiveness ends and the distinct question of reconciliation can begin.  With Pope Francis and a growing chorus of Catholic bishops asking now for forgiveness for the acts and omissions of  so very many bishops and priests having to do with the sexual abuse of children, vile and sometimes criminal acts and cover-ups, it bears emphasis that, on my account of forgiveness, forgiveness, although it is to be given no matter what, does not entail reconciliation. A victim who has managed truly to forgive his or her offender may nonetheless have good and sufficient reason to avoid anything like reconciliation with the offender, no matter how contrite or eager for reconciliation the offender may be.  Even victims who can bring themselves to forgive bishops who concealed sexual crimes may surely have the best reasons for insisting that the offending bishops be removed, by the Pope, from office and duly punished.  Forgiveness is a moral act of love among equals, and as such it is agnostic concerning the strictly prudential judgments that should determine how to interact, if at all, with forgiven offenders. 

 

FORGIVENESS NO MATTER WHAT: JUSTICE AND LOVE AMONG EQUALS

Abstract: This paper argues that, given an understanding of human persons as having good reasons to act for the natural happiness of which they are capable, forgiveness is properly defined as the extension of the due love of self of a person who has been offended to his or her offender, upon realizing that he or she has been offended. 

Every account of forgiveness presupposes some moral anthropology, and the teleological account of the human person made explicit here, with the help of the work of Thomas Aquinas and Alasdair MacIntyre, postulates a human function that in turn provides the person who would qualify himself as a rational agent good reasons for choice and action.  Those reasons include, when the rational agent has suffered an injustice in the form of an offense, choosing, on the one hand, to hate the injustice per se but, on the other, to love first himself and, by an extension of that love between persons who are by nature equals, his offender. The basic idea, pursued in conversation with a wide range of contemporary accounts of forgiveness, is that the obligation to forgive one’s offenders is unconditional exactly because it follows from the indefeasible good reasons a human person has to love himself or herself, even in the face of offense and any consequent misdirected desire to hate his offender.  

Forgiveness “no matter what” does not entail reconciliation with one’s offender; the self-loving forgiver may have good and sufficient reasons that in fact bar reconciliation with his offender, even the repentant and contrite offender.  But an offended person never lacks good and sufficient reason to love himself with (here in Aquinas’s terms) amor amicitiae and amor concupiscentiae, nor, upon reaching the correct judgment that he and his offender are moral equals, his offender with those same two forms of love.  Forgiveness involves willing the goods for one’s offender that escaped him when he chose to perpetrate the offense.

The analysis stresses the importance to forgiveness of what Harry Frankfurt called “second-order desires” because of the central place of forgiveness in preventing lives from going wrong because of misdirected desires, e.g., the desire to hate one’s enemy.  The analysis grapples with the implications of the inequality of persons’ capacities to form second-order desires and, further, to reach the judgment that we are essentially one another’s equals.  I also consider the place of grace, the divine gift by which the human person with a natural end is given also a supernatural end, in a complete economy of forgiveness. Finally, the paper suggests why modern nation states lack the important capacity to show offenders anything approximating the loving forgiveness by which those who have suffered injustice are bound back together with those who have done the injustice.

 

September 6, 2018 in Brennan, Patrick | Permalink

Monday, August 27, 2018

Our hope does not lie in better "leadership"

The current crisis in the Church, the one crystalized by Archbishop Vigano's epochal "Testimony" (which remains to be verified in the time-tested procedures and processes of the Church), has led lots of well-intentioned, good, prayerful, and hurt people to denounce failures of "leadership" in the Church.  And it is no doubt true, I think, that we have witnessed and are witnessing hour by hour a failure of leadership on the part of our Catholic bishops. 

But "leadership" is not a Catholic, nor even a theological, concept, and no manner or amount of better "leadership" will lead (sic) to solutions to the deep problems that are afflicting the Mystical Body of Christ.  The Church has always taught that the successors to the Apostles who are the bishops are entrusted by their consecration with three distinct but inter-related functions: to teach, to govern, and to sanctify. Cf. CIC No. 375.  Today and for more than a few decades, many of the bishops as individuals, the bishops as groups (such as national episcopal conferences), and the bishops as the college of bishops (cf. CIC 337) have failed the People of God in ways that, as the growing light reveals, are both abject and systemic.  What we we are witnessing but also suffering is not merely a failure of governance;  it is also cause and consequence of failures of teaching and sanctifying.

All I can think at this excruciating moment is that, along with the prayer and penance that are overdue and that are more needful than ever before, the solution must be sought in the exercise of the three true gifts of the office of bishop, not in more "leadership"or, its cousin, bureaucracy.  This is a time for prophecy, yes, but more immediately for fervent exercise of the office of bishop in all three of its aspects -- teaching, governing, and sanctifying, and all three starting with the Bishop of Rome, as Pope Francis has preferred to be called from the time of his election to the Chair of Peter.  The only true future for the pilgrim Church lies in orthodox teaching, just and effective governance, and the grace of the sacraments and prayer.  

 

August 27, 2018 in Brennan, Patrick | Permalink

Wednesday, July 4, 2018

The Blanshardians in our midst

Current events in our nation's capital make this Independence Day an especially opportune occasion to observe that Blanshardism is not finished.  By Blandshardism I mean, of course, the activities of those who believe what wrote in his best-selling book, American Freedom and Catholic Power nearly seventy years ago: "the Catholic problem is still with us." Albert Einstein, Bertrand Russell, and McGeorge Bundy were among the books most famous fans.  Following their master's lead, contemporary Blanshardians echo his call for a "resistance movement" to Catholics' "antidemocratic social policies."  A catalogue of Blanshardian grievances against Catholics and their Church is at hand in an article (here) I wrote several years ago. The article closes with Blandshard's agreeing with Hilaire Belloc that holding and adhering to the Catholic view of things about how this world is to be arranged and governed ensures "monstrous conflict" with those who prefer a state that is the agent of "the new morality" (a term I borrow from Edward Rubin). 

Of special salience in light of the aforementioned current events is the Blanshardian dogma that "overpopulation" encouraged by Catholic doctrine regarding human sexuality presents "the most basic and formidable threat to the future happiness of the human race."  It would be a grave mistake to underestimate the force driving this anti-human program.  Blandshard himself didn't shrink from aping the "three generations of imbeciles are enough" O.W. Holmes of Buck v. Bell in defending it: "Fortunately, neither the people nor the courts of the United States agree that there is anything necessarily wrong in depriving an insane or feebleminded person of the capacity to reproduce by a simple and relatively painless operation which does not even deprive him of the satisfaction of sex."  Here one does well to recall that Holmes's opinion in Buck, from which the Catholic Pierce Butler alone dissented, was joined by Stone, Brandeis, Taft, Sutherland, Van Devanter, Stone, and, of course, McReynolds. 

I am of the mainstream view that Buck v. Bell was wrong, but I am also of the view that Pierce v. Society of Sisters, a so-called "substantive due process" decision from which even Holmes did not dissent, and a decision contemporary neo-conservatives have a hard time justifying in terms of their judicial philosophy of choice, was and remains right.  Be that as it may, our Supreme Court's power and authority to set aside acts of the legislature on the ground that they are substantively deficient are not going away, and for that sufficient reason it makes good sense for the Senators to inquire into the substantive views of judicial nominees.  When the Senators do make those inquiries and make them openly, We the People can assess whether their own criteria for evaluating those views are Blanshardian, as they often are and will be, and then decide for ourselves if we will keep voting Blandsharians into high office.  Blanshardians usually beget Blanshardians.      

July 4, 2018 in Brennan, Patrick | Permalink

Monday, April 30, 2018

"Law's Abnegation" at Villanova Law

I am pleased to announce that MOJ's own Adrian Vermeule, John H. Watson Professor of Law at Harvard Law School, will deliver the keynote address at the annual John F. Scarpa Conference on Law, Politics, and Culture to be held at Villanova University Charles Widger School of Law on Friday, September 21, 2018.  The conference will focus on the topics and themes of Prof. Vermeule's Law's Abnegation: From Law's Empire to the Administrative State (Harvard University Press, 2018). There is something for everyone in Vermeule's searching account of law and how it works under our Constitution today.   
 
Details about the conference will be published in due course.  In addition to Prof. Vermeule, other speakers at the conference will include:
 
-- Jeff Pojanowski, Professor of Law, University of Notre Dame
-- Edward Rubin, University Professor of Law and Political Science, Dean emeritus, Vanderbilt     Law School
-- Colleen Murphy, Professor of Law and Professor of Philosophy, University of Illinois
-- Emily Bremer, Assistant Professor of Law, University of Wyoming College of Law
-- Adam White, Director, Center for the Study of the Administrative State, George Mason     University, and Hoover Institution.
-- Brian McCall, Merrill Professor of Law and Associate Dean, University of Oklahoma College     of Law
-- Patrick Brennan, Professor of Law and Scarpa Chair, Villanova University Charles Widger     School of Law

April 30, 2018 in Brennan, Patrick | Permalink

Wednesday, September 13, 2017

Beyond Childhood and Adulthood: A Multidisciplinary Conversation about Humanhood

The annual John F. Scarpa Conference on Law, Politics, and Culture will be held at Villanova University on Friday, October 27. All are welcome to attend, and there is no cost to attend except for those seeking CLE credit.  Details about registering for CLE credit will be posted on the Villanova School of Law homepage as the date of the conference approaches.

The conference, "Beyond Childhood and Adulthood: A Multidisciplinary Conversation about Humanhood," will focus on the new (not-yet-published) book by philosopher James Bernard Murphy, professor of government at Dartmouth, Humanhood: Beyond Childhood and Adulthood.  Many readers of MOJ will be familiar with Professor Murphy's earlier The Philosophy of Customary Law (Oxford 2014) and The Philosophy of Positive Law: Foundations of Jurisprudence (Yale 2007).  Here is a taste from the preface to the new book on which the conference will focus:

 

The study of a human life is intrinsically multidisciplinary. Although this book is framed by basic philosophical questions and arguments, I have drawn illustrative material from biology, psychology, political science, sociology, linguistics, biblical exegesis, anthropology, and literary theory. I have attempted to refer to studies reflecting major currents of scholarship in those fields. The questions we shall consider about the shape of a human life are timeless ones, but the empirical illustrations are undoubtedly time-bound. This book is thus perched between the eternal and the temporal, which is the story of every human life.

 

The timorous may stay at home!  

 

Professor James Murphy will deliver the keynote address, and the other speakers will include:

 

Shelley Burtt, Executive Director of the Camphill Foundation

Phillip Reynolds, Aquinas Professor of Historical Theology, Candler School, Emory University

Marya Schetman, Professor of Philosophy and member of the Law of Integrated Neuroscience, University of Illinois at Chicago

Harry Brighouse, Professor of Philosophy, University of Wisconsin-Madison

James Gordley, W. R. Irby Chair, Tulane University Law School

 

 

September 13, 2017 in Brennan, Patrick | Permalink

Friday, August 25, 2017

A Memorial for John T. Noonan, Jr.

My wonderful friend and former teacher, Robert H. Cole, has recently published (along with Boalt librarian Kathleen Vanden Heuvel) a memorial for John Noonan.  Bob and John were classmates at Harvard Law School, collaborators on the HLR, and then colleagues at Boalt Hall for decades.  I believe that Bob had a big role in enticing his friend John from Notre Dame to Berkeley (long before I was born!).  I thank Bob for giving us this moving appreciation of his late friend and especially for sharing his understanding, which I share, of John's impeccable integrity as a "locus of love." 

_________________

IN MEMORIAM John Thomas Noonan Jr. Milo Rees Robbins Professor of Law, Emeritus UC Berkeley 1926 – 2017 John T. Noonan Jr., a renowned scholar of remarkable vitality and moral purpose, a distinguished federal appellate judge, and an internationally influential Catholic layperson, died at his home in Berkeley on April 17, 2017, at the age of 90. He is survived by his wife of 49 years, the former Mary Lee Bennett, three children, John K. Noonan (Dixie), Rebecca Murray (Stuart), and Susanna Howard (Jim), seven grandchildren, and a sister, Mary Sabin. John Noonan was born on October 24, 1926, in Boston, Massachusetts, and grew up in nearby Brookline. In 1944, he graduated from Harvard College, which was on a wartime schedule, in two and a half years. He then spent a year at the University of Cambridge; earned an M.A. (1949) and Ph.D. (1951) in philosophy from Catholic University of America; graduated in 1954 from Harvard Law School, where he was book review editor of the Harvard Law Review; served a demanding year on the staff of the U.S. National Security Council; and then practiced law for six years at his father’s Boston firm. As a young lawyer, he had a formative experience as the elected chair of the Brookline Redevelopment Authority when it was the center of intense political conflict. He joined the law faculty at the University of Notre Dame in 1961, where he was editor of the highly regarded Natural Law Forum. Noonan came to Berkeley as a visitor in 1967 and was appointed professor of law that year. During almost 20 years on the faculty, he taught courses on professional responsibility and the role of lawyers, jurisprudence, and legal history, and was, among other interdisciplinary activities, chair of the Program in Religious Studies and the Committee on Medieval Studies. In 1985, he became emeritus after President Ronald Reagan appointed him to the United States Court of Appeals for the Ninth Circuit, sitting in San Francisco. He served for 31 years on that court, his last opinion being published in December 2016. He heard oral argument in 3,459 cases and authored 1,080 opinions, dissents, and memoranda decisions, all written by him in longhand on yellow pads. Among his many important opinions is a ground-breaking 1987 decision, Lazo-Majano v. Immigration and Naturalization Service, holding that a politically motivated sexual assault could be the basis for asylum for the victim. His 1995 decision, Compassion in Dying v. State of Washington, holding that Washington’s ban on assisted suicide was not unconstitutional, was affirmed by a unanimous U.S. Supreme Court. In 1999, he wrote a dissent in United States v. Kyllo, arguing that police use of a thermal imaging device to monitor a defendant’s home without a warrant violated the Fourth Amendment. In a 5-4 decision, the Supreme Court agreed with Noonan. In a controversial case in 1990, Noonan, sitting alone, issued a stay of execution for Robert Alton Harris, who was scheduled to die in California’s gas chamber. He held that Harris was entitled under the Constitution to a hearing on whether he had received competent psychiatric assistance during his trial. Ultimately, the Supreme Court allowed the execution, the first in California in 25 years. In an unusual action for a federal judge, Noonan wrote a scathing indictment of the Supreme Court’s decision in an op-ed for the New York Times. Noonan’s scholarly writing was prodigious, wide-ranging, and accessible. It was driven by beliefs in the importance of history, the moral importance of the subject itself, and the moral relation between scholar and reader in developing understanding. His first book, The Scholastic Analysis of Usury (1957), was the product of his dissertation; it focused on the process of development of moral, legal, and Church doctrine over time, setting something of a model for his later work. He wrote books on an impressive array of subjects, including abortion, contraception, euthanasia, marriage, divorce, religious freedom, slavery, bribes, the Magna Carta, and Shakespeare. Noonan’s 1965 book, Contraception: A History of Its Treatment by the Catholic Theologians and Canonists, was a turning point in his early career. It led to his appointment by Pope Paul VI as a consultant to the Papal Commission on Birth Control, which was at work in Rome at the time of the Vatican Council. This established him as a prominent Catholic layperson and led to his friendships with leading Catholic intellectuals. Brightly illuminating as all of his scholarship is, the book found contraception doctrine to be older, more nuanced, and less stringent than what had been generally thought. Although the liberal recommendations of the Noonan majority on the commission were not adopted, they have been influential. Persons and Masks of the Law (1976) is Noonan’s most intensive essay in jurisprudence. Quite appropriately, since it is concerned with the human beings behind formal systems of rules, it is deeply revealing of Noonan’s fundamental commitments to persons, their relationships, and to the power of historical understanding and candid thinking in promoting them. Persons illustrates the importance of the individuals who make and apply law as judges, help make it as lawyers, and are affected by it as litigants. The book takes its place in a never-ending history dating back to Aristotle of jurisprudential thought and judicial decisions exploring the tensions between formal rules, abstract principles, and structured roles on the one hand, all of which are necessary, and, on the other hand, the essential demands of humanity and the effects of laws on individuals in a context of social and moral realities. The book can be considered radical in its systematic argument that rules and the legal and social constructs that mask the humanity of participants are unduly dominant in legal thinking and legal education. Certainly, it is a legal philosophy quite at odds with that of the government that later appointed him to the federal bench. Writing some years later, he summed up his view of the personal in judging: “Americans are blessed with a much fuller literature on their judges’ lives, reflecting, I believe, an American appreciation of the truth that the law a judge makes is a projection of values that are inescapably personal – even while the judge labors to be impartial between the litigants and objective in his framing of the dispositive legal rule.” The Antelope: The Ordeal of the Recaptured Africans in the Administrations of James Monroe and John Quincy Adams (1977) was first intended to be an illustrative chapter in Persons and Masks of the Law, but became a separate and powerful case study of how the American legal system used the mask of property to conceal and obliterate the humanity of enslaved Africans and their descendants. The book follows the capture of the slave ship, The Antelope, and examines not only the decisions by United States courts, but also what happened to the people aboard the ship, both during and after their detention. Bribes: The Intellectual History of a Moral Ideal (1984) has been called Noonan’s masterpiece. The book shows that in early society the aim of giving gifts to powerful strangers was to elicit reciprocity and create social coherence. There was no crime of bribery. Instead, the wrongdoer was the powerful person who accepted gifts but did not grant the favors they were meant to engender. Noonan examines the social, theological, and psychological implications of bribes, focusing on historical instances of persons giving and receiving bribes, rather than on rules that abstractly define ‘bribery.’ He concludes that a bribe is a breach of the fidelity that alone distinguishes public office from raw power. Central to everything in Noonan’s life were his family and his Catholic faith and connections to the Church. No account of his life, however brief, can omit the central importance of Mary Lee Noonan. An art historian, she was his partner in every aspect of his life. Their relationship to each other and their family life were remarkably happy. A man of traditional tastes, Noonan was nevertheless a lifelong adventurer. At the start, he took a year at the University of Cambridge simply to read, travel, socialize, and interview the likes of T.S. Eliot and George Santayana. He devised a curriculum of personal tutorials in Catholicism with distinguished mentors to prepare himself for the Ph.D. program in philosophy; took a Ph.D. even as he knew he was destined for law; always sought out the most daunting thinkers. An appellate judge, he volunteered to sit as a trial judge, a challenging task, in order to understand the whole system better. He followed his humane interests all the way through to publishing books on whatever they led to, including writing on Shakespeare near the end of a lifetime in law. His close personal and intellectual relationship with his older Law School colleague, David Daube, a towering figure in Jewish and Roman law, must have been an adventure in itself to the scholar of Church law. This was a pattern of seeking out challenges necessary for a man who trusted his considered convictions. This particular kind of trust in oneself is a form of integrity. Integrity defined John Noonan: integrity, in that he lived and acted as virtuously as one can ask of fallible human beings; and integrity in the sense of the integration of one’s self across all of life’s various roles and interests. He internalized the Catholic ethics and social teaching that absorbed him throughout his adult years, he acted on his beliefs, and he trusted his convictions. As a judge, he treated the individuals who were litigants and lawyers as persons. His concern for persons informed his judicial sympathy for immigrants. His opposition to abortion was principled, not political, and was coupled with adamant opposition to the death penalty. Slavery, the ultimate denial of personhood, haunts much of his work. He taught ethics and insisted on ethical behavior from the lawyers in his court, his students, his law clerks, and the government officials in the lawsuits before him. His judicial opinions were issued under his name and so he, never his law clerks, wrote them. If issues arose that he thought were important, he would pursue them in scholarship. His delight in friendship was inextricable from his delight in intellectual discourse and both, as well as his profound commitment to family, were inextricable from a belief in the pervading presence of goodness. Perhaps, then, the key to John Noonan’s remarkable capacity to integrate and so actively realize all aspects of his life, from family, to social life, to educating us, to work, to moral well-being, is that he took himself seriously — not as ego or in some frivolous sense — but because it was his responsibility to take his endowments seriously as a person, as a locus of the love that he believed animates everything.

Robert H. Cole

Kathleen Vanden Heuvel 

August 25, 2017 in Brennan, Patrick | Permalink

Tuesday, April 18, 2017

Judge John T. Noonan, Jr., R.I.P.

John T. Noonan, Jr., judge of the Ninth Circuit since his appointment in 1985, has died.  He was 90.  A good and faithful servant of our Lord first, he was a jurist of great distinction and a legal historian with a breadth approached by none.  If you haven't read his book, Persons and the Masks of the Law, now is the time --  it shows how love works in law.  Please join me in praying for the happy repose of the soul of John T. Noonan, Jr., a man who unashamedly communicated love wherever he traveled.    

April 18, 2017 in Brennan, Patrick | Permalink

Friday, March 24, 2017

"The Demon in Democracy"

I've just finished reading Ryszard Legutko's The Demon in Democracy: Totalitarian Temptations in Free Societies (2016).  "Hostility to Christianity in modern liberal democracies raises the question," according to Legutko, "of how religion should manifest itself in public life."  After considering two "strategies," one "conciliatory" and the other "capitulary," Legutko continues:  

No doubt the basic objectives of Christianity remain outside politics, and it is these objectives that the churches and the faithful should pursue.  But this otherwise obvious statement fails to address one crucial fact: the growing infiltration of liberal democracy into religion.  Liberal democracy, like socialism, has an overwhelming tendency to politicize and ideologize social life in all its aspects, including those that were once considered private; hence, it is difficult for a religion to find a place in a society where it would be free from the pressure of liberal-democratic orthodoxy and where it would not risk a conflict with its commissars.  Even the issues generally thought to be remote from politics become censured by the punctilious scrutiny of those who watch over ideological purity.  To give an example:  the Vatican declaration Dominus Iesus sparked anger in many groups -- more among secular and even atheist than Protestant and Orthodox -- and the direct cause was the following sentence:  "Therefore, there exists a single Church of Christ, which subsists in the Catholic Church, governed by the Successor of Peter and by the bishops in communion with him"  (Ch. IV, clause 17).  Those who protested claimed to defend the non-Catholics who presumably could not -- in light of the Declaration -- achieve salvation, and thereby had their eschatological status unfairly diminished in relation to the Catholics.  Why the atheists were so indignant  about the fact that they would not achieve salvation, in which they did not believe, through God, whose existence they denied, can be explained only by a case of total subjugation of the mind by politics and ideology:  they did not see salvation as a theological problem but as the Catholic Church's political instrument, cleverly camouflaged by theological rhetoric, to justify her domination over other religious and nonreligious groups.  In addition, the sentence in question offended their egalitarian sensibility: salvation, like anything people desire that is not recognized as a human right and distributed equally, must have appeared to them ideologically suspect.  (165-66)

The Church, of course, does not teach that only Catholics can be saved, and Dominus Iesus does not remotely suggest such a thing.  For that reason, among others, I'm not at all convinced that "the basic objectives of Christianity remain outside politics."  Politics, as I understand it, can help but also can hinder people's capacity to do what God asks of them to be saved, and if Christianity has "objectives" at all, its transcendent objective is that all be saved (1 Tim. 2:4).  Christianity offers -- indeed, has a right -- to correct and transform politics exactly for the sake of the salvation of as many as possible.    

March 24, 2017 in Brennan, Patrick | Permalink