Mirror of Justice

McLaw

Here , below, is the abstract of a paper  I recently posted on SSRN: "A Catholic Way to Cook a Hamburger: The Catholic Case Against McLaw."   It owes much to my fellow contributors to MOJ over these many years, but none of them is responsible for its content, of course.  It also owes a great deal to the late Justice Antonin Scalia, whom I would like to thank across the chasm for all that he did to make us think harder about law, especially by inviting respectful disagreement.  

 

Is there a "Catholic way" to do law? Catholics aiming to be respectable in the eyes of those who defend the U.S. Constitution as "the supreme Law of the Land" are at pains to convince us that the answer is no. This article argues that the answer is yes, and it does so in conversation was someone, Justice Antonin Scalia, who was certain that the answer was no. It does so, more specifically, in a discussion centered around Justice Scalia's infamous claim, made during a visit to Villanova University School of Law, that just as there is no "Catholic way to cook a hamburger," there is no "Catholic way" to judge.

This article, written as an invited contribution to a volume celebrating the 60th anniversary of the Villanova Law Review, celebrates, in turn, the ten years of the annual John F. Scarpa Conference on Law, Politics, and Culture, at Villanova. Its carefully circumscribed account of and argument for a Catholic way to do law is developed through conversation with some of the dozens of jurists, jurisprudes, philosophers, theologians, and political scientists who have spoken or written under the aegis of the Scarpa Conference; they include Martha Nussbaum, Geoff Stone, Henry Paul Monaghan, Richard Garnett, Paul Kahn, Jesse Choper, Kristin Hickman, John Finnis, Kent Greenawalt, Jane Schacter, Joseph Vining, Judge John T. Noonan, Jr., James Boyd White, Lee Bollinger, Jeremy Waldon, Rick Hills, Bill Eskridge, John Ferejohn, Gillian Metzger, John Manning, Avery Cardinal Dulles, and William Cardinal Levada, to name but a few.

To put the article's thesis epigrammatically, McWorld (to borrow Benjamin Barber's term) begets McLaw, but legal method that is isomorphic with the method of human understanding, which is the essence of Catholic legal method, generates not McLaw but true law, that is, progressively and cumulatively better ordinances of reason for the true common good. As Justice Souter wrote for an 8-1 Court in United States v. Mead (2001), from which Justice Scalia dissented, "Justice Scalia's first priority over the years has been to limit and simplify." But, as Joseph Vining, whose work figures centrally in my defense of a Catholic legal method, has both observed and contended, "law leaves nothing out," "not person, nor present, nor freedom, nor will, nor madness, nor the individual, nor the delight of a child, nor the eyes of a fellow human being, nor our sense of the ultimate, in its effort to make sense of our experience and make statements that are consistent and understandable in light of it all."

 

"Every serious consideration of limited war . . . ."

Michael Perry's welcome remembrance of Fr. Daniel Berrigan's witness reminded me of something John Courtney Murray wrote late in We Hold These Truths: "A friendly critic, Professor Julian Hartt of the Yale Divinity School, had this to say: 'Father Murray has not, I believe, clearly enough come to terms with the question behind every serious consideration of limited war as a moral option, i.e., where are the ethical principles to fix the appropriate limits?  Where, not what?: can we make out the lineaments of the community which is the living repository (as it were) of the ethical principles relevant and efficacious to the moral limits of warfare?' This is a fair question."  A fair question, indeed.

Commenting on Murray's own ensuing judgment that the "American consensus" he invoked no longer obtained, even then, Michael Baxter concludes as follows:  "In the years since Murray's death, Catholic social ethicists in the United States have dedicated themselves to pursuing Murray's agenda.  But the American consensus remains as elusive as it was in Murray's day; indeed, more elusive.  With time, this will no longer point to the plausibility of  Murray's compatibility thesis, but rather to its implausibility."  A fair conclusion?  One awaits countervailing evidence.

What ought "we" do while we wait for the consensus to appear?  Vote in every next general election ad absurdum?  The Catholic positions defended by Murray on contentious issues, such as nuclear weapons and abortion, have never prevailed in public discourse, let alone in law.  The "where?" question, half-answered by Murray, looms larger as every political cycle passes and the returns thereof veto any hope of actualizing Murray's imagined consensus.  The natural law never was what the consensus-mongers said it was, and meanwhile the human deficit in effective ability to implement the natural law grows greater as religion is reduced by law, at least for law's purposes, to the efficacy of incense.  

 

 

"Christianity and the New Spirit of Capitalism"

The Eleventh Annual John F. Scarpa Conference on Law, Politics, and Culture will be held on Friday, November 11, 2016, at Villanova University School of Law.   Yale's Professor Kathryn Tanner will deliver the keynote address on "Christianity and the New Spirit of Capitalism," the topic of her Spring 2016 Gifford Lectures. Professor Tanner's attention to the Christian moral norms that should govern any economy parallels teachings of Pope Francis that have disconcerted many Catholics.   

Other speakers at the Conference will include:

Mary Hirschfeld (Assistant Professor of Theology and Economics, Villanova University)
Robert Hockett (Edward Cornell Professor of Law, Cornell Law School)
Joseph Kaboski (Singer Foundation Professor of Economics, Notre Dame)
Patrick Byrne (Professor of Philosophy, Boston College)
Andrew Yuengert (Professor of Economics, Pepperdine University)
Jesus Fernandez-Villaverde (Professor of Economics, University of Pennsylvania)
Brian McCall (Merrill Professor of Law, University of Oklahoma)

Details about the Conference schedule will be announced in due course. Please mark your calendars for November 11, 2016.

The Expressive Power of Law

The expressive power of law defies capture by those inclined  ("caused"?) to reduce compliance with (or obedience to) law to either deterrence or "legitimacy."  I recommend in this vein Richard McAdams's The Expressive Powers of Law: Theories and Limits (Harvard 2015), a book that can be read especially profitably in tandem with Fred Schauer's The Force of Law (Harvard 2015).  Schauer's careful argument for the place of coercion in law's efficacy is somewhat overstated, in my view, and McAdams's account, while doing too little to expose the place in law of reasons for action per se, does a fine job of both demonstrating and refusing to exaggerate law's power of suggestion.  With dignitary harms multiplying as causes of action, it's timely to clarify whether the operation of law's expressive power that does not lead to compliance should nonetheless a cause of action make.        

Building in the Divine Style: Christian constitutionalism

Saints weren't born saints, and anyone who has become a saint has done so with lots of help.  There is a regrettable  tendency in our political culture and its institutions  to limit the help as a normative matter  to what goes on in private, if at all.  

In the Catholic tradition, however, the entire socio-political order, including the state, was -- and should be -- understood to have its service to perform in helping to bring people to the natural and the supernatural common goods.  Getting to heaven should not be despite humanity's best efforts at building impeding social barricades -- quite the opposite!  The state and the Church should cooperate with each other, without confusing one with the other, for the sake of the salvation of souls.  

One of the principal arguments for withdrawing the socio-political structure from a role in helping people to realize the supernatural common good is the assertion, popularized by Fr. Murray, that the state is a "know nothing" when it comes to the supernatural.  The state need not, however, be a know-nothing.

In the paper linked here, "An Essay in Christian Constitutionalism: Building in the Divine Style, for the Common Good(s)," I answer the question "What would a Christian constitution, in a predominantly nation, look like?"  The paper was prepared for a conference at Rutgers University School of Law, at which Islamic and Jewish answers to the same question, mutatis mutandis, were discussed.  

My paper argues that true Christian constitutionalism, that is, Catholic constitutionalism, is a project of building in the divine style, to which there is no real alternative over the long arc of history. 

"We often hide . . . ."

A blog dedicated to Catholic legal theory is surely an apt forum in which to explore the causes and consequences of lawlessness in the Catholic Church.  Today's lesson comes to us from the Diocese of St. Petersburg, where His Excellency Robert Lynch has served as Ordinary since 1996.  First, a little background.  

Yesterday, Bishop Lynch took to his blog (here), "For His Friends," to celebrate his ordination yesterday of five new priests for the Diocese, the largest class of ordinands there since 1991.  I join Bishop Lynch in giving thanks for these new priests of Jesus Christ, all of whom began their studies for the priesthood during the pontificate of Pope Benedict XVI.  Here, in part, is what Bishop Lynch had to say to his new priests yesterday:

We don’t teach what we believe as well as we should. We rely perhaps too heavily on old methods of communication and put too much reliance on traditional vestige, hierarchy of orders and judgment. We often hide in the clothes of the past as well as some of the ideas of the past, disregarding the fact that to today’s younger generation not only are these things devoid of meaning and anachronistic but also some can suggest tendencies that may not otherwise be present.

Talk about weird!  What "tendencies that may not otherwise be present" is the Bishop talking about at an ordination?  Moving on (because there is nothing to see here), to whom does the Bishop refer as "hid[ing] in clothes of the past?"  Is the simple choice to wear the traditional vestments of the Roman Rite to "hide?" And don't forget that "some . . . ideas of the past" are also apparently a refuge for those wishing to "hide!"  

Was the Archbishop of Miami, His Excellency Thomas Wenski, "hid[ing]" when he celebrated a Pontifical Solemn High Mass according to the Usus Antiquior (here)?  Those who have had the privilege of spending time with Arbishop Wenski, who "rides a Harley" (here), can attest that he is no "hid[er]."  His public stances on disputed matters of policy have been courageous, and he frequently celebrates Mass in Haitian Creole.  

If anyone had any doubt about Bishop Lynch's agenda at the ordination and otherwise, his letter in this link gives it all away.  His Excellency has a long history of despising the Traditional Latin Mass (see here), and his letter of April 20, included in full in the link above, virtually breathes contempt for the faithful devoted to the Traditional Mass.

But I said this post was to be about lawlessness, and indeed it is.  Bishop Lynch's endless tactics and strategies for making the traditional Latin Mass all but unavailable in his Diocese are in clear violation of the juridical norms set out by Pope Benedict in Summorum Pontificum (here).  Pope Benedict made clear that he knew that many Bishops were impeding the celebration of the Traditional Mass under the indult permission allowed since 1984 in Quattuor abhinc annos by Saint Pope John Paul II, and for that very reason Summorum removed Bishops from the loop, so to speak.  The permission of the local Bishop is not required for the celebration of the Traditional Latin Mass in public (or in private).  Bishop Lynch's specious logic for suppressing the celebration of the Traditional Latin Mass where it is now celebrated and for consolidating its celebration in the Vietnamese Mission parish has the support of no Roman legal norms currently in force.  We are witnessing unvarnished antinomianism.  I do hope that the good people of the Diocese of St. Petersburg will receive due relief and remedy from the Pontifical Commission Ecclesia Dei, but I am not hopeful.

Why am I not hopeful?  Consider these words that Bishop Lynch also spoke to the ordinands he cautioned not to "hide:"

Style your ministry after Pope Francis. Ever the teacher, he is a master of the use of the gesture which captures the hearts of the world. Why, because he acts like most of us think Christ would act. He speaks with authority only when he has to but with wisdom and understanding and openness. He doesn’t hide behind rich vestments and vestiges of power and privilege but leads by example using words only when absolutely necessary. When Raul Castro can suggest that this Pope is truly an ambassador for God, we least of all,  should never take him for granted.

Did every Pope until Francis "hide?"  And is it true that Pope Francis "use[s] words only when absolutely necessary?"  But who am I to judge?  

"He knows very well what he is doing"

Archbishop Victor Manuel Fernandez, the theologian widely acknowledged to have been the lead ghostwriter of Pope Francis's much-praised apostolic exhortation Evangelii Gaudium, recently gave an interview that is remarkable for the crudity of its categories, the tendentiousness of its contentions, and, above all, what it portends for the silent lambs.  The Archbishop's way of talking about the Church is so far from what one would expect from a serious theologian and vir Ecclesiae, it's difficult, for me at least, not to despair at the significance of this man's being one of the advisors on whom the Holy Father is reputed to rely the most.  

The interview is here, and those who care about how we should love the Bride of Christ should be scandalized by the mentality it bespeaks and the future it all but promises.  Keep in mind that its all-but-named target at one point is the recent and utterly unprecedented suggestion (here) by Cardinal Muller, Prefect of the Congregation for the Doctrine of the Faith, that a new role for the CDF would be to provide a "theological framework" for this pontificate.  As readers will recall, Cardinal Muller was one of Pope Benedict's last senior appointments in the Roman Curia.

The point Archbishop Fernandez is keenest to drive home is that there will be "no turning back:"

The pope goes slow because he wants to be sure that the changes have a deep impact.  The slow pace is necessary to ensure the effectiveness of the changes.  He knows there are those hoping that the next pope will [] turn everything back around.  If you go slowly it's more difficult to turn things back. . . .

 

[Interviewer] :When Francis says he will have a short pontificate doesn't this help his adversaries?

The pope must have his reasons, because he knows very well what he's doing. [SIC]  He must have an objective that we don't understand yet.  You have to realize that he is aiming at reform that is irreversible.  If one day he should intuit [sic?] that he's running out of time and doesn't have enough time to do what the Spirit is asking him, you can be sure he will speed up.

So, to recap: The Pope will go slowly to make irreversible changes until he "intuits" that he needs to hurry up if he's to succeed in making irreversible changes.  

Now, as the larger context of the interview makes unmistakable, Pope Francis of course doesn't commit the mistake of thinking that all in the Church is changeable.  Acknowledged as unchangeable, in fact, are the existence of the Petrine office and of the College of Bishops.  And so:

The Roman Curia is not an essential structure.  The pope could even go and live away from Rome, have a disastery in Rome and another one in Bogota, and perhaps link-up by teleconference with liturgical experts that live live in Germany.  Gathered around the pope, in a theological sense, is the College of Bishops in order to serve the people."  

This concatenation of wild possibilities gives a new image to ultramontanism.  But ultramontanist it is, despite the cultured veneers provided by a newly minted theology of papal popularity.  According to Archbishop Fernandez over and over in the interview, the decisive fact is that "the people are with him" "and not with his few adversaries."  "[M]ost of the People of God love Francis."  

And why shouldn't they?  Here comes perhaps the most breathtaking part of a tightly integrated interview that is indeed programmatic in the extreme.  It comes in the explanation of why there is "no turning back:"  "If and when Francis is no longer pope, his legacy will remain strong."  Why, other than nostalgia?  

[T]he pope is convinced that the things he's written or said cannot be condemned as error. Therefore, in the future anyone can repeat those things without fear of being sanctioned.  And then the majority of the People of God with their special sense will not easily accept turning back on certain things.  [emphasis in the preceding par. added]

[Interviewer:] Don't you see the risk of 'two Churches'?

No.  There's a schism when a group of important people share the same sensibilities that reflect those of a vast section of society.  Luther and Protestantism came about this way.  But now the overwhelming majority of the people are with Francis and they love him.  His opponents are weaker than what you think.  Not pleasing everyone does not mean provoking a schism.

[Interviewer:]  Isn't this idea of the pope having a direct rapport with the people something risky, while the Church's ecclesiastical class feels marginalized?

But the Church is the People of God guided by their pastors.  Cardinals could disappear, in the sense that they are not essential.  The pope and the bishops are essential.  Then again, it is impossible that everything a pope does and says will please everyone.  Did everyone like Benedict XVI?  Unity does not depend on unanimity.

[Interviewer:] Do you think a conclave would re-elect Francis today?

I don't know, possibly not.  But it happened . . . .

 

Yes, it happened.  But the creeping infallibility asserted with arresting breadth and clarity in the quoted language should cause the faithful  -- whether they consider themselves liberals, conservatives, or, better, just plain Catholic -- to sit up and pay attention and, I dare say, to object.  

For example, Pope Francis has never purported to speak ex cathedra, and so how can it be that in his own view, as reported by a most-trusted advisor, nothing he has "said" -- and he says a lot -- can possibly be in error, such that what he has "said" necessarily can be "repeated" ad libitum by the "People of God."

There are changeable elements in the Church visible, and those can indeed be changed.  There are unchangeable elements in the Church visible, and those cannot be changed.  What, then, is the point of the "they love Francis" populism in service of a creeping infallibilism?  Well, perhaps a confusing of the changeable and the unchangeable?  What does it mean to "hurry up," as the Archbishop said Francis would, to make "irreversible" changes in what is, ex hypothesi, changeable?  The truly unchangeable cannot be changed, even by a Pope in hurry.  The authentic theology of the sensus fidelium (cf. Archbishop Fernandez's "special sense," above) is not about the success of demagoguery and Machiavellian politics in the Domus Sanctae Marthae, not about the large numbers who "love [Francis]" and how comparatively few and "weaker" are Francis's "adversaries." Nonetheless, Archbishop Fernandez is more or less content to contend as follows: "This pope first filled St. Peter's Square with crowds and then began changing the Church."      

As the Archbishop insisted, Pope Francis "knows very well what he's doing."  

So much for "extraterritorial" rights

I recalled the other day (here) Jacques Maritain's observation that "it was five hundred years ago that we began to die."  Maritain made that observation in 1927 (in Primaute Du Spirituel, which was published in English in 1930 under the title The Things That Are Not Caesar's), so by now it's been nearly six hundred years since the patient began to die.  Maritain promptly changed his tune from the one he sang in 1927, of course, and, without benefit of Tradition, defended throughout the rest of his long life a state no longer formed and united on the basis of  "a common profession of faith" but, instead, on the basis of a "minimal unity"  (Integral Humanism 262, 261 (1934-35; Eng. 1996)).  Maritain supposed that such a minimal principle of unity would be more than enough to protect the human person's "extraterritorial " rights and privileges, that is, those that correspond to the rights of God.  In 1966, however, reading the "signs of the times" (so to speak), Maritain cautioned that "the great reversal" of which he had been the advocate depended upon this: that "it is no longer the human which takes charge of defending the divine, but the divine which offers itself to defend the human (if the latter does not refuse the aid offered."  (The Peasant of the Garonne 4 (1966; Eng. 1968)).  Is it the divine defending the human that Pope Francis has in mind when he would have us genuflect before man (see here), while he himself does not genuflect or kneel before the Blessed Sacrament (at least not in public)?  Can humans who do not take charge of defending the divine right anticipate that the divine will succeed in offering aid to humans, whose existential freedom of choice remains intact, after all?  Even in 1934-35 Maritain recognized that "[t]he Christian knows that the State has duties to God and that it should collaborate with the Church."  (Integral Humanism, 265).  Does "the Christian" any longer "know[]" as much?  If not, what will become of those "extraterritorial" rights and privileges?  Well, just look around at how "the great reversal" is working out its own internal logic one issue (or several) at a time, more and more often in courts of law -- this "territory" at the expense of higher "territory."

Grandstanding

If I were a legislator (which would never happen, because I would never be elected to anything -- though I was in fact elected class president many times back in the day), I would never vote in favor of killing people as punishment.  But the Catholic prelates who like to oppose the death penalty have not made the case, at least not that I've seen, that death is *never* proportionate punishment.  The argument about "self-defense" is a separate matter, even if the Catechism confuses the two.  It's easy to grandstand against capital punishment, but it's difficult, at best, to show that Catholic moral theology condemns capital punishment per se.

"All tolerance ends here"

Whenever I have occasion to size up the worthiness of particular examples of professional advocacy for "healing" in a "polarized" Church (e.g., here), I have to ask what the advocates do and what they advocate (if only implicitly) with respect to the Traditional Latin Mass.  Many lovers of "unity" love little more than to vilify Catholics who are devoted to the Mass as it was celebrated until its reform by committee in the 1960s.  The tolerance necessary for unity often runs out when it comes to how Catholics prayed until they were forced to stop praying that way, as Cardinal Ratzinger saw:

For fostering a true consciousness in liturgical matters, it is also important that the proscription against the form of  liturgy in valid use up to 1970 should be lifted. Anyone who nowadays advocates the continuing existence of this liturgy or takes part in it is treated like a leper; all tolerance ends here. There has never been anything like this in history; in doing this we are despising and proscribing the Church's whole past. How can one trust her at present if things are that way?  [Ratzinger, Spirit of the Liturgy (2000)].

Opponents of polarization in the Church should ask themselves if they are living in the spirit of openness required by Pope Benedict XVI almost eight years ago in the motu proprio Summorum Pontificum.  The current Roman Pontiff's derision of those devoted to the traditional liturgy is too well-documented to need demonstration here, and so the following paragraph from Pope Benedict's remarkable letter accompanying Summorum is more timely than ever for those of us who would seek unity in the Church: 

I now come to the positive reason which motivated my decision to issue this Motu Proprio updating that of 1988. It is a matter of coming to an interior reconciliation in the heart of the Church. Looking back over the past, to the divisions which in the course of the centuries have rent the Body of Christ, one continually has the impression that, at critical moments when divisions were coming about, not enough was done by the Church’s leaders to maintain or regain reconciliation and unity. One has the impression that omissions on the part of the Church have had their share of blame for the fact that these divisions were able to harden.  This glance at the past imposes an obligation on us today: to make every effort to enable for all those who truly desire unity to remain in that unity or to attain it anew.  I think of a sentence in the Second Letter to the Corinthians, where Paul writes: “Our mouth is open to you, Corinthians; our heart is wide.  You are not restricted by us, but you are restricted in your own affections.  In return … widen your hearts also!” (2 Cor 6:11-13).  Paul was certainly speaking in another context, but his exhortation can and must touch us too, precisely on this subject.  Let us generously open our hearts and make room for everything that the faith itself allows.