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.

Friday, May 27, 2022

Steve Smith, "The Church in the Twilight"

While I'm at it, here's a little notice for a new paper by Professor Steven Smith that may be of interest to MOJ readers, from the same conference organized by Professor Helen Alvaré as the one for which I wrote the paper below. Steve's paper is The Church in the Twilight and the abstract is below. It's well worth your time.

Writing in the 1970s, Robert Nisbet observed that we can observe in history “twilight periods”– the late Roman Republic, the late Roman Empire, the late Middle Ages– in which one form of civilization was collapsing and another form was emerging; and Nisbet believed that the West is currently in such a period. In recent years similar assessments have proliferated, coming from various points on the political spectrum. Such assessments are inherently speculative; nonetheless, they might naturally influence our political and cultural decisions: choices that might make sense when a society is growing and vibrant might make less sense in a period of decadence or collapse. In the area of religious freedom, more specifically, institutional religious freedom has in American history been secondary to or derivative of a dominant emphasis on individual religious freedom; and these priorities have been consistent with the individualism that has been a central and celebrated feature of Western civilization. But there is reason to think that this individualism now underlies some of society’s serious ailments. In this situation, it may be that institutional religious freedom– freedom of the church– should be the priority.

May 27, 2022 in DeGirolami, Marc | Permalink

Thursday, May 26, 2022

"The New Disestablishments"

A new draft paper, building on some work I've done on the nature of "establishment" today, its relationship to free exercise and exemption from general law, and particularly the idea of establishment as "regime" in classical political theory. One of the more controversial claims in the paper is that inquiries about "religion" as a legal category are no longer worthwhile from a scholarly perspective (though they continue of course to be highly necessary from a practical, lawyerly perspective), except as a way to conceive the shifting dynamics of power within the regime. Here's the abstract:

The individual has complete autonomy of choice respecting matters of sex, gender, and procreation. The findings of science as established by the knowledge class, together with the preferences of that class in this domain, should be imposed on everyone. These views reflect two central creeds of the new establishment. They, or statements like them, are the basis for policies across the nation touching many walks of life, from business to education, media, advertising, health care and medicine, and more.

Whether these propositions and others like them constitute a “religious” establishment is irrelevant. To be sure, there are arguments that it is religious. But the hypertrophy of the concept of religion in American law has made the legal category “religion” so malleable as to render it useless as an analytical tool. And, at any rate, religious belief responds to the world in which it is situated. When that world tells dissenting citizens that their beliefs are irrational, anti-scientific, and benighted—and, indeed, that their objections to new establishment creeds are discreditable because they are religious—dissenters may be forgiven for taking the world at its word. If these dissenting views are religious, it is the new establishment that has made them so and, in consequence, entangled itself in religious controversy.

Free exercise exemption has been thought a way to resist the new establishment. Yet the dynamics of resistance are ambiguous. Individual exemption—unless connected to a larger strategy—can validate and strengthen the new establishment, entrenching the supplicant position of the exempted. Many advocates of exemption do not object to this state of affairs. They insist that they have no interest in disrupting the new establishment. They are committed to it, too. Yet partisans of the new establishment are not wrong to sense possible danger from expanding rights of free exercise. These rights, if synthesized and organized, could become broader pockets and sub-communities of disestablishment. There is a continuum between free exercise and disestablishment. Dissenting positions on the family, education, religion, sex and gender, and others might be stitched together from the disaggregated set of free exercise exemption micro-victories to constitute challenges to the new establishment. To do that, however, would demand concerted action involving some mechanism other than exemption, and it is not plain that advocates of religious exemption are interested in that project. But the project may be coming whether they like it or not. Unlike the new establishmentarians, some free exercise advocates have not adequately appreciated (or do not wish to see) that the real fight is not about an individual exemption here or there, but about the future shape of the American establishment.

May 26, 2022 in DeGirolami, Marc | Permalink

Saturday, April 2, 2022

On C.S. Lewis' "Learning in War-Time"

Yesterday, a group of us from St. John’s gathered together to discuss C.S. Lewis’ famous sermon, “Learning in War-Time.” The event was one of our Reading Society gatherings at the Center for Law and Religion, and we were lucky to speak together with Mark Lanier of the Lanier Theological Library in Houston, Texas. Mark brought up the original draft of Lewis’ sermon, hand-written and, in fact, only very lightly edited. I have attached the first page of the original below.

One of many interesting insights one gains from the original is that at the very top, you can see a reference to “Deut XXVI:5 A Syrian ready to perish was my father.” This reference did not make it into the published lecture. But it is evocative of one of the themes of the sermon: the worth of seemingly frivolous or unwise activities (as learning and the pursuit of knowledge may at times seem to be) during a time of great danger, friction, and upheaval. The piece repays close and regular reading, for Christians and others alike. We were lucky to have the chance to reflect on it together.

April 2, 2022 in DeGirolami, Marc | Permalink

Tuesday, March 29, 2022

The Australia School and Politico-Theological Inquiry: Joel Harrison Responds

[In response to some thoughts I had posted about interesting developments in law and religion in Australia, Professor Joel Harrison had these illuminating observations, which he has given me permission to post. MOD]

In his blog post, Professor DeGirolami raises a possible emerging ‘Australian School’ – Australian-based scholars who are interested in Christian theological concerns and justifying religious freedom in light of this. Professor DeGirolami’s post spurred a few initial thoughts in response; I’m grateful he invited me to share them here.

First, although developing a theological jurisprudence is certainly not something unique to scholars in one place, is there something about Australia that may allow this to grow? One possible angle for reflection is on a ‘trans-Atlantic’ difference, and its continuing relevance to Australia. 

The trans-Atlantic difference puts me in mind of the theologians Stanley Hauerwas and John Milbank. Hauerwas the American is anti-Constantinian and sees the violence of the State as the primary thing to resist. Separation is necessary to maintain a prophetic difference – or even just survival of the Church as the Church. Although much indebted to Hauerwas, Milbank the Brit understands Christendom and Christianity as coterminous – Christianity means (complexly) instantiating a political-spiritual project. More broadly, and as generalisation, the boundaries of church and State discourse or what is a matter for theology and what is a matter for law are more blurred on one side of the Atlantic.         

Of course, Australia is not either country. It is a former colony and still part of the Commonwealth, but it also has a strong United States-flavour. Constitutionally it is sometimes described as having a ‘Washminster’ system, with its blending of federalism and responsible government. Culturally and politically, it can swing between looking to one country or the other.  

That said, I wonder whether it is still possible to have more of a ‘British’ sensibility in Australia and talk about cooperative arrangements between church and State, or even develop public debate in theological terms. We can add to this an ongoing relationship to First Peoples, who are partly recognised at State and federal level as maintaining a spiritual or metaphysical connection with the land, as judges of the High Court of Australia recently stated. Although Australia was not permitted to have an established church, this requirement was not opposed to a religiously infused culture and politics. That is not entirely dissimilar from the United States, but Australia perhaps historically went further – maintaining something of that British inheritance in a colonial context. To this day, for example, despite some voices in Australia saying otherwise, it is very difficult to claim a ‘Rawlsian consensus’ of public reason or even that this is something of significant debate.  

Second, this growth in theological concern takes place against an emerging culture war dynamic. Recent years in Australia have seen a remarkable shift. Matters that were previously uncontroversial – like a Catholic, Jewish, or Muslim school’s liberty to hire only members of the religious tradition – are now challenged. It is not difficult to find outright hostility to religious groups or at least non-comprehension. (In one example, an Australian rights group argued the State needed to protect nuns from the Catholic Church, which was infringing their right to private and family life.) This takes place against the backdrop of numerous parliamentary inquiries into religious liberty. Different lobby groups on both sides have sprung-up. With each new inquiry they have escalated their rhetoric, stating the opposing side poses an existential threat that demands immediate action (and presumably more funding and support). In this context, the turn to theological frames (often a version of postliberalism) can reflect an interest in finding resources beyond the culture war. 

It serves a critical function and a productive function. 

Critically, the turn to theology helps to unmask any continuing claims to neutrality. Most notably in the context of religious liberty debates, it helps us to understand how the appeal to autonomy as promoted within liberal frames is not divorced from a theological view – what it means to be free and how this understanding came to be, what the role of civil authority is in relation to this. A theological turn offers insight into our current context: different groups engaging in an agonistic discourse of incommensurable claims to liberty. 

Productively then, the turn to theology looks for an alternative. Thus, we see language of the common good, duty, virtue, solidarity, peace, and charity developed in aid of asking what the shape of a complex, good society should be. 

This raises a final important point that I think should shape any apparent ‘school’ interested in theological jurisprudence. Often religious liberty claims are framed as simply protecting a particular community’s own backyard: my liberty, my autonomy, my freedom from x. However, this turn to theology aims at something more – contemplating the future of our shared life. This is not a question simply for Australian-based scholars, of course.  But I’m certainly glad we splendidly named ‘young upstarts’ can make a contribution (and await criticism).

March 29, 2022 in DeGirolami, Marc | Permalink

Sunday, March 27, 2022

The Australia School

I'm back from a superb conference orchestrated by Professor Helen Alvaré at the Liberty & Law Center at George Mason Law School on some of the current and future challenges and prospects in law and religion. I'll have more to say about my paper, "The New Disestablishments," by and by, but for the present I will note that I was grateful for improving and insightful criticisms from the group, including those of Professor Fred Gedicks, who was my commenter.

One of the things that occurred to me at the conference was that it seems a new school of thought about religious liberty is emerging in some young upstart scholars, in Australia. I'm only just coming to learn of The Australia School, and so I am going to miss what are new and interesting scholars in it. Indeed, calling it The Australia School assumes some kind of unity of thought, and I am certainly not suggesting there is such unity. But at the very least, The Australia School will include scholars like Professor Joel Harrison and his Post-Liberal Religious Liberty: Forming Communities of Charity; Professor Alex Deagon (who presented at the conference) and his From Violence to Peace: Theology, Law and Community; and Professor Neil Foster, who has written about when it is and is not appropriate for courts to decide matters that impinge on religious doctrine. I am missing many, I'm sure (and apologize preemptively to those I have not discussed). I don't want to overgeneralize, but this is a blog post, and it would be boring not to offer at least some thematic observations about The Australia School. So are there any discernible themes? 

Both Harrison and Deagon are deeply interested in Christian theological concerns, and both offer justifications for religious freedom rooted in theological considerations. Both rely on the work of John Milbank--not identically, but substantially. Indeed, I have a review over here of Harrison's book, trying in summary form to describe the way Harrison reimagines religious freedom and devises justifications for it that are new and represent a different direction (with words of praise, though there was a criticism or two also!). Foster also is interested in the issue of the relationship of religious doctrine to civil power. And Deagon emphasizes issues of the unity of peaceful co-existence, also through a theological lens. Both the influence of Milbank on these scholars and their theological orientation are notable; I can discern only very few similarly oriented projects over in our corner of the world. One question I've been thinking about is just why. 

As I say, I'm just learning about The Australia School and there are likely many differences and disagreements already emerging within it. But it's a fresh and interesting development in the law and religion world. 

March 27, 2022 in DeGirolami, Marc | Permalink

Saturday, March 26, 2022

Purposive interpretation *as* judicial restraint: The Legal Process School as the end of a long era

Most people today tend to associate purposive interpretation--of statutes, say, but it could be of anything--with "judicial activism" and therefore an absence of judicial restraint. The alignments seem to be: textualist interpretation--->restrained interpretation; purposive interpretation--->activist interpretation.

But I'm learning that it was the view of some legal process theorists (Bickel, Wellington, Jaffe, maybe Fuller) that purposive interpretation promoted and was in the service of judicial restraint. As Neil Duxbury puts it in his article on the Legal Process school (Faith in Reason: The Process Tradition in American Jurisprudence): "As with the articulation of reasons, they [legal process theorists] argued, the purposive interpretation of statutes fosters judicial restraint. For such interpretation allows not the imposition of any old purpose onto a statute, but only 'a purpose which may reasonably be imputed to those who uttered the words.' [citation here to a 1957 piece by Bickel and Wellington]....Judicial discretion in the interpretation of statutes, [Jaffe] argued, should be exercised...where the Court is uncertain of the clear purpose of the statute."

In fact, one can see the view that purposive interpretation is an appropriate judicial function in constitutional adjudication of the 18th and 19th century quite regularly. But I was surprised to see it as still so fully embraced by the Process theorists. As sifting out, through reasoned elaboration, the principles the lawmaker intended for the law. And yet, this way of thinking is so different from the way many think about judicial restraint today. Something like the opposite way.

March 26, 2022 in DeGirolami, Marc | Permalink

Monday, March 14, 2022

Announcing the Sixth Biennial Colloquium in Law & Religion at St. John's Law School

The Center for Law and Religion, which Mark Movsesian and I co-direct, is delighted to announce the lineup for the sixth biennial Colloquium in Law and Religion, scheduled for Fall 2022. The Colloquium brings outside scholars and jurists to St. John’s to teach a seminar for selected students. 

This year’s Colloquium speakers are Judge Richard J. Sullivan of the U.S. Court of Appeals for the Second Circuit and Professors J. Joel Alicea (Catholic University School of Law), Nathan Chapman (University of Georgia School of Law), Nicole Stelle Garnett & Fr. Pat Reidy (Notre Dame Law School and Yale Law School student), Anna Su (University of Toronto Faculty of Law), and Nelson Tebbe (Cornell Law School).

For more information about the Colloquium, please contact Center Co-Directors Mark Movsesian and Marc DeGirolami.

March 14, 2022 in DeGirolami, Marc | Permalink

Wednesday, March 2, 2022

Conference: "Beyond 'Defensive Crouch' Religious Freedom"

I'm happy to be participating in this conference hosted by the Liberty & Law Center at George Mason Law School. I'll present a paper called "Traditionalist Disestablishments," a first step in combining my research interests in traditionalist constitutional interpretation with some of the developments occurring in law and religion at the moment. More soon on that. Here is the conference description:

In the United States today, religious individuals and institutions increasingly find themselves seeking exemptions from a wide array of laws and regulations burdening their free exercise. In this environment, it is important to ask about religion’s positive contributions to individuals and to society.
 
The Liberty & Law Center is therefore hosting a two-day conference on March 24 & 25, 2022 at the Antonin Scalia Law School in order to explore several urgent questions: what goods and values does religious exercise further, including institutional exercise; how religious exercise can not only serve but sometimes better promote the values of equality, dignity, and freedom valorized by the state; and how religious institutions might better understand and communicate the social worth of religion and religious freedom.
 
Findings will be presented in four panels over the course of two days. To view the agenda and detailed list of speakers, click here. For questions about the event, please email [email protected]. We hope you'll join us!

March 2, 2022 in DeGirolami, Marc | Permalink

Sunday, February 13, 2022

Conference on Catholic Perspectives on Criminal Justice Reform at U. Wisconsin, Sponsored by Lumen Christi and the Center for the Study of Liberal Democracy

I'm just back from an excellent conference organized by Professor Cecelia Klingele at the University of Wisconsin on Catholicism and Criminal Law and Justice. The conference was sponsored jointly by the Lumen Christi Institute and Wisconsin's Center for the Study of Liberal Democracy.

Together with fellow MOJ-er Patrick Brennan, we had a day of reflection and presentation of work concerning the theme. John Stinneford and I are having fun co-authoring a paper on "The Common Law, the Catholic Tradition, and the Criminal Law." We discuss the idea of tradition in Catholicism and the common law, the important concept of "culpa" or blameworthiness within both traditions, and its evolution across time. More soon on this paper.

February 13, 2022 in DeGirolami, Marc | Permalink

Friday, November 26, 2021

Breen and Strang Respond to Interlocutors on Catholic Legal Education

In 2020, the Journal of Catholic Legal Studies and the Center for Law and Religion at St. John's co-hosted a symposium on a draft book by Professors John Breen and Lee Strang: "A Light Unseen: A History of Catholic Legal Education." Deans of several Catholic law schools (including Rob Vischer), as well as other learned academics (including Rick Garnett), offered comments on the manuscript. Those comments were published by JCLS last year.

Professors Breen and Strang have now offered this thorough and very interesting reply, in the new issue of JCLS. Their remarks are well worth your time.

November 26, 2021 in DeGirolami, Marc | Permalink