Mirror of Justice

Steve Shiffrin, Rest in Peace

I'm very sorry to note that Professor Steve Shiffrin has died. Steve was the author of some wonderful work in law and religion and the freedom of speech, well known to many of us at Mirror of Justice and from which I learned a great deal. He was also a kind and generous man. He was, as my colleague Mark Movsesian writes, "a scholar of the first rank who remained humble and helpful to everyone. A rare combination of virtues. May he rest in peace."

Bray on the Catholic tradition (or is it the catholic tradition?) and the Common Law

Permit me to flag a very interesting article by Professor Samuel Bray: The Influence of the Catholic Tradition on the Common Law.The piece (drawn, I believe, from a talk on the same subject that Sam gave at Catholic University of America, Columbus School of Law, at the Center directed by Kevin Walsh and Joel Alicea) discusses three ways in which Catholic thought shaped the common law tradition. One of the difficulties in such a project, Sam says, is that the common law tradition is largely a post-16th century English phenomenon, when the role of Catholicism was, shall we say, diminished. Here is the abstract of the piece, followed by a few little on-the-fly reflections:

This essay considers the influence of the Catholic intellectual tradition on the common law. As a preliminary matter, the essay notes that the term "Catholic intellectual tradition" is of recent vintage, though its referent is much older. It identifies three mechanisms of influence: inheriting, conversing, and generating. For inheriting, the essay notes that some common law doctrines, such as the Chancellor's conscience, were inherited from the Catholic intellectual tradition. For conversing, the essay notes the conversation across confessional boundaries in early modern Europe, which was facilitated by the use of Latin and scholastic curricula well after the Reformation. This point, while familiar to early modern intellectual historians because of revisionist work over the last quarter century, may be surprising to legal scholars. Finally, for generating, this essay shows that the common law judges, by their own lights, were participants in the Catholic intellectual tradition. This is demonstrated, for example, by analysis of Chief Justice Vaughan's opinion in Thomas v. Sorrell (1673/4). When this intellectual tradition is viewed without anachronistic narrowness, its influence on the common law is substantial.

The piece is short, sweet, and full of great learning and insight. I highly recommend it. One rapid thought on the "anachronistic narrowness" point quoted above in the abstract. On what he calls the "generative" influence of Catholic thought on the common law, Sam argues very interestingly that the division of Catholic Intellectual Tradition from Protestant thought is likely of relatively recent vintage (say, the 19th century or so, especially in the resistance of the Church to modernity during that period), and that the common lawyers of the early period of the common law did think of themselves as working from (and perhaps even within) the Catholic Intellectual Tradition. One might call it instead the catholic intellectual tradition that is, Sam suggests, the tradition that had influence on the early common law--the Western Christian or Christian apostolic tradition unbound by today's anachronistic divisions.

There are some comparatively small questions I had about some of Sam's more specific claims. He says, for example, that each "side"--"Roman" and "non-Roman"--argued in "Newmanesque" fashion that "whoever did not change or augment the deposit of faith was the truly catholic side." But is this really a full description of the disagreements that were themselves generated in and just after the period Sam surveys? There are not too many people in this world who would like more to believe that everybody is actually, deep down, a traditionalist (perhaps Sam is one). But disagreements about tradition and development (a/k/a change), it seems to me, eventually led to Cardinal Newman's own position, decisions, and intellectual contribution. I wonder whether they materialized quite as late as Sam suggests.

Nevertheless, in highlighting one of Sam's perhaps more controversial points above, I want to emphasize that Sam seems to me quite correct on all three influences with respect to the thought of learned commentators such as Coke, Hale, St. German, and others (perhaps even as late as Mansfield and Blackstone, for example), as well as judges such as the one who wrote the lead opinion in cases like Thomas v. Sorrell (1673/4). "[G]iven the cross-confessional argument and pollination in the early modern period across the republic of letters," Sam contends, "it is plausible to think that sharply demarcated “Catholic” and “Protestant” intellectual traditions are from a later time." As I say, just when that "later time" began is difficult to determine, as Sam properly acknowledges (the 19th century seems quite late, indeed), but at least as to the earlier common law writers, his view seems (to this admitted non-expert in English legal history) persuasive. Check out this very fine piece.

Statius On What Authors Hope and Fear

Authors hope and fear for their work. Will it endure? Will it be forgotten? Will it be read and considered, or crumble away as if it never had been written?

Here is the Roman poet, Statius--a magnificent writer in his own right, but today largely forgotten--at the conclusion of his masterpiece, the Thebaid (concerning the travails of the Seven Against Thebes), with a lovely reflection on these perennial anxieties:

Wilt thou endure in the time to come, O my Thebaid, for twelve years object of my wakeful toil, wilt thou survive thy master and be read? Of a truth already present Fame hath paved thee a friendly road, and begun to hold thee up, young as thou art, to future ages. Already great-hearted Caesar deigns to know thee, and the youth of Italy eagerly learns and recounts thy verse. O live, I pray! nor rival the divine Aeneid, but follow afar and ever venerate its footsteps. Soon, if any envy as yet o’erclouds thee, it shall pass away, and, after I am gone, thy well-won honours shall be duly paid.

"The horror of the Same Old Thing"

From Chapter 25 of Lewis's The Screwtape Letters:

The horror of the Same Old Thing is one of the most valuable passions we have produced in the human heart--an endless source of heresies in religion, folly in counsel, infidelity in marriage, and inconstancy in friendship. The humans live in time and experience reality successively. To experience much of it, therefore, they must experience many different things; in other words, they must experience change. And since they need change, the Enemy (being a hedonist at heart) has made change pleasurable to them, just as He has made eating pleasurable. But since He does not wish to make change, any more than eating, an end in itself, He has balanced the love change in them by a love of permanence. He has contrived to gratify both tastes in them in the very world He has made, by that union of change and permanence which we call Rhythm. He gives them the seasons, each season different yet every year the same, so that spring is always felt as a novelty yet always as the recurrence of an immemorial theme. He gives them in His Church a spiritual year; they change from a fast to a feast, but it is the same feast as before.

Now, just as we pick out and exaggerate the pleasure of eating to produce gluttony, so we pick out this natural pleasantness of change and twist it into a demand for absolute novelty...The demand is valuable in various ways. In the first place it diminishes pleasure while increasing desire. The pleasure of novelty is by its very nature more subject than any other to the law of diminishing returns. And continued novelty costs money, so that the desire for it spells avarice or unhappiness or both. And again, the more rapacious this desire, the sooner it must eat up all the innocent sources of pleasure and pass on to those the Enemy forbids. Thus by inflaming the horror of the Same Old Thing we have recently made the Arts, for example, less dangerous to us than, perhaps, they have ever been, 'low-brow' and "high-brow' artists alike now being daily drawn into fresh, and still fresh excesses of lasciviousness, unreason, cruelty, and pride...

But the greatest triumph of all is to elevate this horror of the Same Old Thing into a philosophy so that nonsense in the intellect may reinforce corruption in the will. It is here that the general Evolutionary or Historical character of modern European thought (partly our work) comes in so useful. The Enemy loves platitudes. Of a proposed course of action He wants men, so far as I can see, to ask very simple questions; is it righteous? is it prudent? is it possible? Now if we can keep men asking 'Is it in accordance with the general movement of our time? Is it progressive or reactionary? Is this the way that History is going?' they will neglect the relevant questions. And the questions they do ask are, of course, unanswerable; for they do not know the future, and what the future will be depends very largely on just those choices which they now invoke the future to help them make. As a result, while their minds are buzzing in this vacuum, we have the better chance to slip in and bend them to the action we have decided on. And great work has already been done. Once they knew that some changes were for the better, and others for the worse, and others again indifferent. We have largely removed this knowledge. For the descriptive adjective 'unchanged' we have substituted the emotional adjective 'stagnant.' We have trained them to think of the Future as a promised land which favoured heroes attain--not as something which everyone reaches at the rate of sixty minutes an hour, whatever he does, whoever he is.

"Do You Wish To Know? Notes on a New Humanism in Legal Education"

Here is the text [UPDATE: and the video] of a talk I was delighted to give a few weeks ago for the inaugural conference of the Center for Law and the Human Person at Catholic University School of Law, ably directed by Elizabeth Kirk. A bit of a manifesto, I'm afraid, which I offer here now on the 19th anniversary of Mirror of Justice, a forum that has meant a great deal to me.

 

Do You Wish to Know? Notes on a New Humanism in Legal Education

March 14, 2023

A center for law and the human person is a center devoted to considering questions about humanity, about human nature, about what is good and bad for human beings. About what their ultimate ends are. About who humans are and what they should do.

Such a center, I will claim, is not only about these central questions concerning humanity, but also about the disciplines that have come to be known as the humanities, and the way that the humanities contribute to the formation of fully human beings—in the case of the center, fully human beings who also happen to be lawyers.

What would such a center pursue as part of its core humanistic mission?

Here there are some major challenges that such a fledgling center would confront. There is some bad news. Familiar bad news, perhaps, but bad news nonetheless worth reviewing. The humanities—the study of language (ancient and modern), history, philosophy, literature, the arts, and, on some understandings, religion and theology—are in free fall. The numbers of undergraduates majoring in these fields is shrinking dramatically. Dramatically, in fact, does not do the shrinking the barest justice.

Such is the lack of interest in the humanities that many colleges are eliminating humanistic study altogether. These include Catholic colleges, like Marymount University in Virginia, which recently announced the cutting out of humanistic learning. But not only Catholic colleges. Colleges, religious and secular, are doing away entirely with majors in these subjects, and they are also reducing humanistic study drastically. If these reports are credited, there simply is no longer even the minimal student interest in them necessary to sustain departments or self-standing courses.

And this is not an issue only for what are regarded as less elite institutions. An article in The New Yorker just a few weeks ago observed that over the last decade, humanities majors have dropped at an average rate of 50% at schools like Ohio State, Arizona State, Tufts, Notre Dame, Columbia, and Harvard. In fact, Harvard’s numbers are particularly striking. In 2012, the number of humanities majors at Harvard was 20%. In 2022, it was 7%. The numbers are forecasted to fall even more after that. Good economic times, bad economic times, and everywhere in between, the numbers continue to decline.

The explanations are many and sufficiently plentiful that one can insist on whichever reason one might prefer. Some say that the advent of technology like iPhones and social media (Twitter, TikTok, Instagram, and so on) has made the activity of the reading of humanistic books superfluous or uninteresting. There is surely some truth to this, a truth from which I do not exempt myself. I know (to my shame) that I am reading fewer books today than I read even ten years ago. I am consumed with my own phone. As a recent NY Times piece on what is wrong with the humanities put it, “The answer to any question, ‘What is Wrong…” is or ought to be, ‘I am wrong.’” The line was Chesterton’s, actually.

It has also been claimed that the language of centuries past is increasingly inaccessible or impenetrable to today’s generations of students, who prefer and are accustomed to a different way of communicating more suited to current circumstance. Again, there is also some truth here. I have found that a good meme can do as much to make, say, Marbury v. Madison memorable as can close attention to its elegant but difficult text.

Others say that economic concerns predominate. College is extremely expensive, and only becoming more so. Most students are required to take on crushing loans. Those loans put great pressure on students to find employments that are immediately remunerative, so that they can then proceed to even more well-paying work later.  The humanities are not seen as safe bets in an environment of such pressure. Employers are not looking for history or language majors. The skills taught by history professors in history departments are not seen as marketable. They do not distinguish a candidate as desirable, as they once did.

In a related development, witness the meteoric ascent of STEM fields. At Princeton University, where I am visiting this semester, a gigantic new engineering program is being constructed—a colossus that will dwarf the existing educational structures and that will, I am told, drive a massive expansion in Princeton’s student admissions in the coming years. Just as humanities majors have precipitously declined, so, too, have Computer Science majors and other applied science majors exponentially grown. The current Secretary of Education, Miguel Cardona, has emphasized repeatedly that colleges and universities must “meet the needs of the economy,” and those needs are connected overwhelmingly to education in STEM fields, not the humanities.

And universities, here and abroad, have become, as Adrian Pabst puts it in a recent piece in the New Statesman, “managerially controlled and market driven.” College and university administrators (some of whom, I hasten to add, are lovely, lovely people, Dean Payne), whose rise in numbers and power within the universities has often been remarked, tend to see the function of the university in these terms as well. They are liable to ask questions like (as one administrator did recently ask me), “Why are you assigning Plato in your free speech and free inquiry class? What does that offer the students?” What, indeed, when a STEM-exclusive education can produce marvels such as ChatGPT, which, some say, makes humanistic study even more useless and anachronistic than it was already.

And, of course, a final explanation for the collapse of humanistic learning is internal. Humanities professors themselves increasingly disdain or even are ashamed of the learning and the knowledge that form the core of their own disciplines. Classical languages departments at the most elite universities have begun to do away with requirements in the very languages that constitute their discipline. A Latin major with no Latin. English departments rename themselves something else—anything else—mortified by the learning that constitutes their own field. As one Harvard English professor put it in the New Yorker piece, “One of the tragedies of the British Empire is that everyone read Dickens, so we must read him too.” Not exactly a ringing endorsement of Dickens, though that is about the best that one can hope for in the way of defense. Small wonder that large numbers of students flee such disciplines. This is the death of learning, as the title of a recent book by John Agresto puts it, “not by murder, but by suicide.”

I do not intend to pick among these explanations or spend much more time surveying reasons. Probably they all have some explanatory role. I want instead to think about effects. About what this collapse means. After all, one might reasonably ask, so what? What difference does it make that many fewer students are interested in these subjects? Disciplines come and go in the history of human thought. Astrology was once studied in universities. Alchemy was, too.

Academic disciplines can become extinct, and there need not be any regret at their dying. Or they can transform themselves into something else. Psychiatrists today are trained to be chemists where once they were trained to be psychoanalysts. English departments can become social media studies departments. And, at any rate, the appetite for the study of Assyrian or Linear B or even the Romance Languages probably never was all that high to begin with. Perhaps it should not be.

The death spasms of the humanities are only to be regretted, and efforts to resuscitate them undertaken, if we can conclude that there is something of worth in them, that they continue to contribute something of value. That requires a defense of some kind. An apology, one might say, for the humanities. So…do they? The author of the New Yorker article that I mentioned observed: “scholars have begun to wonder what it might mean to graduate a college generation with less education in the human past than any that has come before.”

That author might have consulted a law professor or two for answers. After all, we get lots of undergraduates right after their college years, so that if there are effects of the moribund humanities to see, we might be likely to see them.

Continue reading

"The Role of Tradition in Constitutional Law"

Here's the video of a panel with Professors Ernie Young, Kevin Walsh, and me, discussing what I think of as a long-existing, though now emerging, method of constitutional interpretation and law. We all brought different perspectives to the matter, and it was fun to talk together. The program is part of Professor Joel Alicea and Professor Walsh's Project on Constitutional Originalism and the Catholic Intellectual Tradition at The Catholic University, Columbus School of Law. I enjoyed the conversation and questions very much.

 

 

Inaugural Conference of the Center for Law and the Human Person at CUA

I am delighted to be participating in this conference at Catholic University of America, Columbus School of Law, next Tuesday, together with fellow MOJ-ers Profs. Mary Leary  and Lisa Schiltz, as well as Prof. Carter Snead. The conference inaugurates the new Center for Law and the Human Person, directed by Elizabeth Kirk. The theme of the conference is "Rightly Ordered Law and the Flourishing of the Human Person."

The title of my talk is "Notes on a New Humanism in Legal Education." I'm told the conference will be recorded, but if you are in DC, please register at the link and do stop by and say hello! I'll have more to say about the substance of my talk soon.

MacIntyre on Reconceiving the Contemporary University

From "Reconceiving the University and the Lecture," in Three Rival Versions of Moral Enquiry 230-31.

The preliberal modern university was a university of enforced and constrained agreements. The liberal university aspired to be a university of unconstrained agreements and hence its abolition of religious and moral tests, and hence also, so I have argued, its present endangered state. Such reformers as those who propose some version of the Great Books curriculum ignore the fundamental character of our present disagreements and conflicts, presupposing possibilities of agreement of a kind which do not at present exist. What then is possible? The answer is: the university as a place of constrained disagreement, of imposed participation in conflict, in which a central responsibility of higher education would be to initiate students into conflict. In such a university those engaged in teaching and enquiry would each have to play a double role. For, on the one hand each of us would be participating in conflict as the protagonist of a particular point of view, preserving and transforming the initial agreements with those who share that point of view and so articulating through moral and theological enquiry a framework within which the parts of the curriculum might once again become parts of the whole. The second task would be to enter into controversy with other rival standpoints, doing so both in order to exhibit what is mistaken in that rival standpoint in the light of the understanding afforded by one's own point of view and in order to test and retest the central theses advanced from one's own point of view against the strongest possible objections to them to be derived from one's opponents. So systematically conducted controversy would itself contribute to systematically conducted moral and theological enquiry, and both would inform that teaching in which students were initiated into both enquiry and controversy.

On the other hand, each of us would also have to play a second role, that not of a partisan, but of someone concerned to uphold and to order the ongoing conflicts, to provide and sustain institutionalized means for their expression, to negotiate the modes of encounter between opponents, to ensure that rival voices were not illegitimately suppressed, to sustain the university -- not as an arena of neutral objectivity, as in the liberal university, since each of the contending standpoints would be advancing its own partisan account of the nature and function of objectivity -- but as an arena of conflict in which the most fundamental type of moral and theological disagreement was accorded recognition.

Some Memories of Kent Greenawalt

Professor Kent Greenawalt, longtime faculty member at Columbia Law School and eminent scholar in many areas--criminal law, jurisprudence, constitutional theory, free speech, and, of course, law and religion--has died. Many of us at Mirror of Justice knew him and his work well. Others will and should reflect on his greatly distinguished career, one combining service at high levels of government, projects of legal reform (particularly in criminal law), and great scholarly achievement in law and letters. I wanted to offer here some of my memories about Kent in my own life.

For me, Kent was a mentor and friend since I got to know him in the summer of 2006. In those days, he was the first and best advisor I had concerning subjects that I had just begun to study and learn about, someone who immediately invited me into his life when many others would not. He was reserved, gentle, patient, kind, but also deeply penetrating and critical (often of my work, and in the best ways) as we discussed ideas, projects, and papers together. I used to joke with him that my study at Columbia ought really to go by a separate degree name, Greenawalt Studies. That proved largely right. Some of the best teachers are the best because they make their students want to know about the teacher and their work--to learn through the mediating structure of the teacher. So it was for me with Kent. His interests became my interests, and I learned about criminal law and constitutional law through the medium of his articles, books, and our many conversations. I also learned and took from Kent a commitment to breadth and to writing in a variety of disciplines as inclination dictated.

One of Kent's signature course offerings was a seminar, whether in legal interpretation or the religion clauses or something else, at his home. He would provide tea, coffee, and crumpets of various kinds (usually huge, powdered donuts), and we all would sit around his living room overlooking the Hudson River, hunched over various easy chairs, couches, rugs, and the like, and talk together. It was an experience akin to what 16th century Italian salon exchanges must once have been like. I am not the first to observe that among his many gifts, Kent's particular excellence as a teacher was the capacity to listen exceptionally closely and deeply to what was being said. I think that one of the benefits of this virtue was the consequent capacity to slice the ideas being expressed into finer and finer shavings, so that each fragment could be examined and thought about on its own. In reflecting back on this way of thinking and teaching, it has occurred to me that it was particularly effective not only for understanding difficult ideas, but also for achieving mutual understanding and perhaps even partial agreement where there was initially only total disagreement--and even hostility. Kent reflected the virtues of keen listening in his scholarship and his scholarly exchanges as well. But I should add that it was also a different time in scholarship about subjects like the religion clauses than it now is, and I have wondered whether this method can work, or can work in the same way, today. 

As for his scholarly achievements, as I mentioned, I will leave that for others to reflect upon, with this one exception. It was an important part of Kent's intellectual contribution, developed over his scholarly life and across several disciplines, that law is best understood in a kind of ongoing inductive process–not by drawing hard dividing lines between legal concepts and categories but instead by asking careful questions, revolving, deepening, and developing in a kind of concentric upward spiral that penetrated through to the truth, about how the law works itself out in the real world. "From the bottom up," as the title of one of his books of essays puts it.

It was a humane, cultivated, fair-minded, decent, deeply civilized method of scholarly inquiry befitting a man of the same high qualities. I was always struck by this approach to scholarly inquiry, perhaps even to life, attempting in various poor ways to model its virtues as I could, but never as the master did. It’s a method of writing and public engagement that I’ve been delighted to see in other humane and highly literate scholars and friends—in Paul Horwitz’s thought, for example (Paul, also a student of Kent’s, offers his remembrances here some of which are similar to mine but some of which are different), and Steve Smith’s work as well, different as these scholars are from one another and, in turn, from Kent.

In later years, after I became an academic, it was a great joy for me to have Kent speak at the Law and Religion Colloquium that I regularly co-teach with Mark Movsesian (on that occasion, actually, the Colloquium was co-hosted and co-taught with Michael Moreland and his students at Villanova). Kent continued to show our students what a true scholar all'antica was like, passing on his example of that elegant and worthy tradition to them. I knew that he had fallen ill in more recent years and regretted that we had not seen one another as often as I would have liked. I will miss him.

May he rest in peace.

"Public-Private Drift"

Here's a new paper of mine, Public-Private Drift, examining the growing proclivity to blend public law and private law in order to mold behavior and coerce it into certain ideological grooves. The paper explores the phenomenon in a variety of contexts today. Here is the abstract:

The public law/private law divide is back. Scholars with a broad range of theoretical commitments are attempting to rediscover or reestablish the division. This paper approaches the public-private law problem by describing what it calls “drift.” Drift is the tendency of what is thought traditionally to be private law to become public (public drift), and the tendency of what is thought traditionally to be public law to become private (private drift). Though it is possible to distinguish public and private drift conceptually, drift is in practice a unified phenomenon: public and private drift go together. Drift is manifested not only in formal, legal developments, but also in the informal processes by which public law frameworks now influence private ordering, private rulemaking, and private relationships, as well as the way private authorities have been entrusted with the responsibility to implement those public law frameworks.

This paper’s perspective on the public-private debate is explanatory. It accepts that many people perceive or believe American law to be in some sense divided into public and private domains, without endorsing that perception or belief. It does so in order better to describe the coming of drift. Even if one were skeptical about the conceptual purity of public and private law, one might nevertheless believe that what is public and private is a question of more and less, of greater and lesser degrees, and that there can be periods of relative stability in these categories and relative disruption. The paper describes various contemporary examples of drift, explains drift’s comparative ascendancy today, and speculates about possible future developments for drift.

The upshot is that drift in public and private law may not be driven primarily by anything innate or conceptually necessary in the disciplines believed to constitute private or public law. Drift is instead a political byproduct, the issue of social and cultural anxieties concerning the absence of anything like a common political project. The paper deliberately selects examples of drift that exhibit what would be conventionally described as conservative and progressive valences (in the meteoric rise of public nuisance, in the strategy of statutes like Texas’ S.B. 8, in the mixed public-private response to COVID-19, in the controversies about social media speech control, and others) to illustrate the universality of the phenomenon. Drift is a response to a perceived political void or emptiness in which public-private partnerships of powerful actors emerge to fill the void, capture the institutions of power, and coerce people’s behavior into certain ideological grooves. Drift is, in sum, a reaction to social fragmentation that ironically and unhappily exacerbates the pathologies that provoke it in the first place.