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.

Tuesday, May 7, 2024

Some responses to Anthony Annett on Social Democracy and Catholic Social Thought

A little while ago, Anthony Annett had an essay in Commonweal called "The Theology of Social Democracy," the thesis of which was that "Catholic social teaching guides us beyond neoliberalism."  Put aside doubts one might have about whether "neoliberalism" has agreed upon content or is, instead, a protean epithet used to dismiss all views that have some consonance with human nature and experience; it is certainly the case that Catholic social teaching (correctly understood) guides us beyond "-isms" generally.

By "social democracy" Annett means "an economic system predicated on the belief that an economy must be underpinned not only by property rights but also by economic rights. More concretely, in a social democracy, the government supplies public goods, uses the welfare state to protect people from adverse economic circumstances, and promotes unions to make sure that workers can bargain for their fair share of economic progress."  Fair enough.  It is not controversial, even in the most "neoliberal" crannies of the Catholic intellectual and scholarly space, to note that the Church's proposals regarding the policy implications of the truth about the human person resonate with at least some aspects of "social democracy" and challenge some aspects of its alternatives.  It is true, as Annett writes, that the "Catholic social teaching forged a middle path between free-market libertarianism and socialist collectivism" (and, to be clear, statism).  There is much in Annett's essay about the "common good", "subsidiarity" (which is often misunderstood), and "integral human development" that is both timely and sound.

But, Annett's piece is undermined by a lot of straw-manning and factual mistakes.  He writes, for example, "[Social democracy] can be contrasted with the approach of free-market economics or economic libertarianism. Under those two systems, the only rights recognized are property rights. A free-market system might allow for a minimal social safety net to prevent outright destitution, but nothing more than that." But, there are no "systems" in the world where "the only rights recognized are property rights."  And, there are no market economies that provide "nothing more than" the minimal social safety net he describes.  There are no economic systems -- certainly, despite Annett's suggestions to the contrary, the United States is not such a system -- where the "free market" is not pervasively regulated.  Indeed, the economic system in the United States is acknowledged by those who examine the matter to be, in many ways, more regulated than the systems in some countries that Annett would characterize, I suspect, as "social democracies."

Annett claims that, in the Catholic tradition, "economic rights [are] the central rights, even before civil and political rights", but this is not supportable (and the sources he cites do not support the claim). His statement that, since the rise of "neoliberalism", "productivity and economic growth have been slower" is false (so long as one does not blame "neoliberalism" for the fact that the second war, and the rebuilding that followed, eventually ended).  He contends that one of the "pillars" of operationalizing Catholic social teaching and social teaching is "complete decarbonization" but has nothing (realistic or fact-tethered) to say about how this might happen, globally, so long as the PRC is uninterested in the project and so long as billions of people living in developing nations are not likely to welcome outsiders' edicts that they accept non-growth.  He calls for more labor-union power (again, this is a call that resonates with much in 20th century Catholic social thought) but says nothing about the fact that, in the United States anyway, the unions largely represent high-earning public-sector workers whose demands and expectations are costly to lower-income people not employed by governments.  (He also neglects the fact that, in the United States today, public-employee unions stymie reforms that Catholic social teaching calls for clearly, such as school choice.)  And, he overlooks the fact that the economic "system" he praises, in mid-century America, depended crucially on a labor force that was limited by the relative absence of competition from women, from immigrants, and from workers in developing countries.  There can be no welfare state of the kind Annett calls for without meaningful enforcement of boundaries, both geographical and communal.  The challenge of such enforcement is not mentioned in Annett's essay.

Annett concludes by saying that, to accomplish the changes he envisions, "[t]he political Left would need to return to its working-class roots, moving away from the politics of culture and identity—the politics favored by educated elites. The political Right, meanwhile, would need to rediscover the successes of Christian democracy, and turn away from neoliberalism and climate-change denialism."  There's something to this, I think (again, "neoliberalism" isn't really a thing and doubts about the feasibility anytime soon of global decarbonization does not make one a climate-change denier).  The key thing, it seems to me, is to appreciate that Catholic social teaching (correctly understood) is not "separate" from "social issues", "life issues", etc.  The Church's proposals are, at bottom, about the nature and destiny of the person - they are not just about economic arrangements and systems, and the proposals that do bear on such arrangements and systems are inseparable from those that bear on (e.g.) religious freedom, educational pluralism, and constitutional arrangements that constrain governments. 

Anyway . . . check it out.

May 7, 2024 in Garnett, Rick | Permalink | Comments (0)

Call for Papers: Annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility

Submissions and nominations of articles are being accepted for the fifteenth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.  To honor Fred's memory, the committee will select from among articles in the field of Professional Responsibility with a publication date of 2024.  The prize will be awarded at the 2025 AALS Annual Meeting in San Francisco.  Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: [email protected].  The deadline for submissions and nominations is September 1, 2024.

May 7, 2024 in Garnett, Rick | Permalink

Friday, May 3, 2024

Henry Garnet, S.J., R.I.P.

On this day, in 1606, Henry Garnet, S.J. was hanged by St. Paul's Cathedral in London.  (The crowd reportedly pulled on his legs, during the hanging, so that he would die before the usual disemboweling.)  He was a student of Robert Bellarmine and had been, for some time, the head of the Jesuit mission in England, and he was executed for (in addition, of course, the offense of being a Jesuit in England) failing to reveal his (alleged) knowledge of some details of the "Gunpowder Plot."  (In Macbeth, Shakespeare mocks Garnet, by reference, as the "equivocator.")   Ora pro nobis. 

Father Henry Garnett

May 3, 2024 in Garnett, Rick | Permalink

Henry Garnet, S.J., R.I.P.

On this day, in 1606, Henry Garnet, S.J. was hanged by St. Paul's Cathedral in London.  (The crowd reportedly pulled on his legs, during the hanging, so that he would die before the usual disemboweling.)  He was a student of Robert Bellarmine and had been, for some time, the head of the Jesuit mission in England, and he was executed for (in addition, of course, the offense of being a Jesuit in England) failing to reveal his (alleged) knowledge of some details of the "Gunpowder Plot."  (In Macbeth, Shakespeare mocks Garnet, by reference, as the "equivocator.")   Ora pro nobis. 

Father Henry Garnett

May 3, 2024 in Garnett, Rick | Permalink

Friday, April 26, 2024

Cavadini on "Research and the Catholic Intellectual Tradition"

It's by John Cavadini (Notre Dame) so "self-recommending," etc., but I also highly recommend this piece at Church Life Journal.  In particular, it should be a must-read for all administrators and leaders and benefactors and faculty of Catholic universities that might be tempted to imagine that the path to flourishing, or "relevance", is to relegate "Catholic" stuff to residential life and campus ministry, or to water down Catholic universities' mission, character, and charism to vague and unobjectionable nice-words like "sustainability", "inclusion", and "justice".  As many of us have said, many times, on this blog over the last 20 (!) years, a Catholic university is only interesting if, and to the extent that, it is Catholic.  And, as every reasonable and informed observer knows, but as many still need to be reminded, there is no dissonance between the well-functioning (correctly understood) of a university and the (meaningfully) Catholic intellectual tradition.

April 26, 2024 in Garnett, Rick | Permalink

Monday, April 22, 2024

Cyril O'Regan on the Legacy of Benedict XVI

My colleague at the University of Notre Dame, Cyril O'Regan, has a great essay up at Church Life Journal on "The Legacy of Benedict XVI".  Here's a bit:

A fundamental element in speaking the truth is to expose the systemic inhospitality of the modern secular state towards Christianity that can at inopportune moments verge into open hostility. This is not to say that the secular world is always wrong in its criticisms of the behavior of the Church that has at times been both reprehensible and scandalous (e.g. the sex abuse crisis) and that the secular world has not been justified in pointing to the way in which the Church—similar to most worldly institutions—is too often guided by the instinct of self-preservation and self-reproduction. For Benedict, as for John Paul II, the world can provide moments for Christian self-inspection and ample opportunities for repentance. Still, overall, for Benedict, the “neutrality” of the modern secular world is as a matter of fundamental principle “armed”: it constructs the Catholic Church as irredeemably authoritarian both in its basic structure and in its public performance towards the world; as substituting an irrational faith for reason, which if objectionable in itself becomes more objectionable as it serves to sponsor violence. Further, it constructs the Church as recommending ways of thinking that straightjacket free inquiry (thereby making it incomprehensible how the university came into being under the tutelage of Catholicism) and engender unfree forms of living contrary to genuine human flourishing.

For Benedict, to respond critically to secular modernity is first to avoid being provoked by it; it is to exercise discernment and discriminate between what is hale and harmful in it; what can be sanctioned by reason understood against the backdrop of its full philosophical amplitude and what in it agrees with the Wisdom (reason as both substantive and holistic) that Christianity attempts both to honor and perpetuate. Demonization of secular modernity is reaction-formation, thus hostage to what it would deny as well as betraying a lack of confidence in the ultimate persuasiveness of truth it would proclaim. Benedict understands that the dominant narrative of secular modernity, to the effect that everything valuable concerning the ratification and protection of human rights depends upon reason’s critique of and separation from Christianity, is entirely self-serving, and deliberately ignores the insights bequeathed to it by the Christian tradition.

April 22, 2024 in Garnett, Rick | Permalink

Wednesday, March 13, 2024

Mark Rienzi on the Transgender Cases at SCOTUS

Mark Rienzi (CUA and Becket) has shared with Mirror of Justice the following report and analysis:

Transgender cases hit SCOTUS

This week, the Supreme Court is set to consider several cases dealing with the hot-button topic of gender transitions for minors.  Although this has been a major political firestorm for the last couple of years, SCOTUS has largely stayed out of the fray.  The Bostock decision established the right for transgender employees to be free from certain types of discrimination on the job. The Court has so far avoided ruling on Title IX’s application to transgender students, dismissing one case as moot and waiting to weigh in on state laws requiring students to play on sports teams aligned to their natal sex, not current gender identity.

But sooner or later, the Court will have to weigh in on the limits of Bostock, as well as the national controversies over how far parents, schools, and doctors should go in supporting gender transitions for minors.

A trio of cases at Friday’s conference presents a surprising contrast in how state officials handle these issues.

First, the Solicitor General and a group of parents, represented by the ACLU, have asked the Court to consider challenges to laws banning medical transition procedures for minors. Tennessee and Kentucky (along with numerous other states) have banned such procedures, and the challenges to their laws have now reached the court. The A­­CLU has asked the Court to consider its parental rights argument. The SG has taken a different tack, asking the Court to focus on whether the bans violate the Equal Protection Clause as an impermissible sex-based classification.  The states have argued there is not yet a circuit split, citing the Eight Circuit’s pending en banc decision on a similar law in Arkansas. Whether the Court takes this set of cases or waits for a later opportunity, it seems inevitable that the nationwide controversy will eventually end up at SCOTUS.

A third petition raises a troubling question of parental rights in Indiana. Indiana is among the states that have banned such medical procedures for minors, but state officials nonetheless removed a teenager from his parents’ custody because they refused to use his preferred pronouns and agree to treat him as a girl. In M.C. and J.C. v. Indiana Dep’t of Child Services, Mary and Jeremy Cox have appealed the state’s decision to remove their teenage son from their home and place him in a home where “she is [ac]cepted for who she is.” The state refused to return the teen to his parents, even after an investigation showed that all allegations of abuse and neglect were unsubstantiated. The court pointed to an eating disorder and reasoned that, if the child were returned to his legally fit parents, he would experience distress due to the disagreement over gender. That was grounds to keep him out of his parents’ home until he turned 18.

The Coxes kept appealing, hoping their son might come home, but Indiana and its courts refused to return the child.  Now they have asked the Supreme Court to review their case, hoping to overturn a decision that could continue to have dire consequences for their family and put them at risk of further state intervention for their younger children. Our team at Becket is proud to represent them. But Indiana, confoundingly, continues to defend the decision. The state reasons that because it succeeded in keeping A.C. from his parents until he turned 18, his case is now moot. It’s a dangerous argument that would set a dangerous precedent nationwide: parents lose their legal recourse against state officials who take a teen away, since teens will soon reach the age of majority and their cases will be moot, too.

It’s not just Indiana. California and Minnesota have passed laws which allow state courts to take jurisdiction over minors for the purpose of allowing them to receive medical interventions for their transitions. Maine is considering a similar law. Washington state has passed a law that allows teens to effectively emancipate themselves by going to shelters which will help facilitate social and medical transitions—it’s then up to the state, not the parents, how long the teens can stay. The state doesn’t even have to notify the parents of the child’s whereabouts.

The Supreme Court will soon have to decide the rights of loving parents who don’t support a child’s desire to engage in a social or medical transition.  It should do so now, not years from now, when more families have been torn apart. And the Coxes’ case presents an unusually strong scenario: the state admits the parents are fit, so there are no overlapping issues about state law on abuse. The fact that A.C. has turned 18 makes the case an especially clean vehicle—there is no danger of changed circumstances once the Court grants cert. 

These disturbing cases will only continue to multiply until, and unless, parental rights are established. Loving families should not have their children removed because the parents disagree with state officials about gender.

March 13, 2024 in Garnett, Rick | Permalink

Friday, February 16, 2024

Duncan on School Choice and Religious Freedom

Prof. Rick Duncan (Nebraska) has a new paper up called "Why School Choice Is Necessary for Religious Liberty and Freedom of Belief."  Amen!  Here's a bit:

Education is not value-free; indeed, it is value-laden. And in a country as divided as ours, we no longer share common values and common truths. We have competing versions of what is good, what is true, what is fair, what is just, what is morally good, and what is beautiful. Moreover, we are at odds over the most important question in life—whether God exists and whether His Word is relevant to a quality education.  And a one-size-fits-all K–12 curriculum cannot possibly serve all these competing versions of the good life. Although I think competition is always good for the quality and efficiency of any product or service, my argument in this Article is not about higher standardized test scores or better mastery of subjects and skills. My perspective is based on First Amendment values of freedom of religion, thought, and belief formation. In other words, I believe that school choice is necessary for religious liberty and for freedom of thought and belief. If religious and intellectual autonomy are to survive and thrive in a deeply divided, pluralistic nation such as ours, parents must be free to choose an appropriate education for their children, without having to sacrifice the benefit of public funding of education. To put it succinctly, educational funds should be directed to children and their parents, not to strictly secular government schools.

I tried to make a similar argument, a (long!) while back, in this paper, "The Right Questions about School Choice: Education, Religious Freedom, and the Common Good."  Time flies!

February 16, 2024 in Garnett, Rick | Permalink

Sunday, February 4, 2024

20 Years of Mirror of Justice

This weekend, the Mirror of Justice blog turned 20 years old.  Here is a link to our first post (authored not by me, as the link suggests, but by Mark Sargent):

Welcome to Mirror of Justice, a group blog created by a group of Catholic law professors interested in discovering how our Catholic perspective can inform our understanding of the law. Indeed, we ask whether the great wealth of the Catholic intellectual and moral tradition offers a basis for creating a distinctive Catholic legal theory- one distinct from both secular and other religious legal theories. Can Catholic moral theology, Catholic Social Thought and the Catholic natural law tradition offer insights that are both critical and constructive, and which can contribute to the dialogue within both the legal academy and the broader polity? In particular, we ask whether the profoundly counter-cultural elements in Catholicism offer a basis for rethinking the nature of law in our society. The phrase "Mirror of Justice" is one of the traditional appellations of Our Lady, and thus a fitting inspiration for this effort.

A few things about this blog and us:

1. The members of this blog group represent a broad spectrum of Catholic opinion, ranging from the "conservative" to the "liberal", to the extent that those terms make sense in the Catholic context. Some are politically conservative or libertarian, others are on the left politically. Some are highly orthodox on religious matters, some are in a more questioning relationship with the Magisterium on some issues, and with a broad view of the legitimate range of dissent within the Church. Some of us are "Commonweal Catholics"; others read and publish in First Things or Crisis. We are likely to disagree with each other as often as we agree. For more info about us, see the bios linked in the sidebar.

2. We all believe that faith-based discourse is entirely legitimate in the academy and in the public square, and that religious values need not be bracketed in academic or public conversation. We may differ on how such values should be expressed or considered in those conversations or in public decisionmaking.

3. This blog will not focus primarily on the classic constitutional questions of Church and State, although some of our members are interested in those questions and may post on them from time to time. We are more interested in tackiling the larger jurisprudential questions and in discussing how Catholic thought and belief should influence the way we think about corporate law, products liability or capital punishment or any other problem in or area of the law.

4, We are resolutely ecumenical about this blog. We do not want to converse only among ourselves or with other Catholics. We are eager to hear from those of other faith traditions or with no religious beliefs at all. We will post responses (at our editorial discretion, of course.) See "Contact Us" in the sidebar.

5. While this blog will be highly focused on our main topic, we may occasionally blog on other legal/theoretical matters, or on non-legal developments in Catholicism (or on baseball, the other church to which I belong.)

6. We will be linking to relevant papers by the bloggers in the sidebar. Comments welcome!

It is, I suppose, cringe-inducingly obvious to note that a lot has changed since February of 2004. (There were a lot of back-and-forth postings about the Bush v. Kerry election!) A fair bit of the conversation among law-types has migrated to Twitter, Substack, etc. And yet, blogs survive (and, in some well-known cases, continue to thrive). 

It continues to be my view -- as I tried to express in this very early post of mine, and in a lot of posts since -- that at the heart of any "Catholic legal theory" has to be the Christian proposal about moral anthropology, that is, about what it means and why it matters to be human.  As I said in this short essay, "persons" are "the point of the law."

Ad multos annos!



February 4, 2024 in Garnett, Rick | Permalink

Sunday, January 28, 2024

"The Servant Lawyer"

One of the legal academy's true treasures, Bob Cochran, has a new book out, called The Servant Lawyer:  Facing the Challenges of Christian Faith in Everyday Law Practice.  Cochran draws not only on his own crucial body of work on religious lawyering, but also on the thought and legacy of our mutual friend and mentor, Tom Shaffer. 

Here's the blurb from that huge Bezos website:

Most lawyers, from Wall Street to the county seat, spend their days drafting documents, negotiating with other attorneys, trying cases, researching the law, and counseling clients. How does this everyday law practice relate to Jesus' call to follow him in servanthood?

With decades of experience in the law office, courtroom, and classroom, Robert F. Cochran Jr. explores Jesus' call on lawyers to serve both individual clients and the common good. Cochran pulls back the curtain with stories from his own career and from the legal community to address a wide range of challenges posed by law practice, including counseling clients, planning trial tactics, navigating tensions with coworkers, and handling temptations toward cynicism and greed. This honest and accessible book

  • shares wisdom from an experienced practitioner and master teacher
  • addresses real-world situations and relationships experienced by most lawyers
  • charts the way toward a truly Christian practice of everyday law

For students considering a career in law as well as for seasoned attorneys, The Servant Lawyer casts an encouraging vision for how lawyers can love and serve their neighbor in every facet of their work.

Check it out!

January 28, 2024 in Garnett, Rick | Permalink