Thursday, February 13, 2020
It's more than a little jarring, for me, to be reminded that blogs (or the Internet, or computers) have existed for 16 years, but there it is. Anyway, back in February of 2004, our merry band -- several whom are still with us! -- launched this blog, "dedicated to Catholic legal theory." My very first post was called "Law and Moral Anthropology" - theme I've returned to (probably too) many times over the years. Here's a bit, and I am not sure my thinking has changed much:
One of our shared goals for this blog is to . . . "discover how our Catholic perspective can inform our understanding of the law." One line of inquiry that, in my view, is particularly promising -- and one that I know several of my colleagues have written and thought about -- involves working through the implications for legal questions of a Catholic "moral anthropology." By "moral anthropology," I mean an account of what it is about the human person that does the work in moral arguments about what we ought or ought not to do and about how we ought or ought not to be treated; I mean, in Pope John Paul II's words, the “moral truth about the human person."
The Psalmist asked, "Lord, what is man . . . that thou makest account of him?” (Ps. 143:3). This is not only a prayer, but a starting point for jurisprudential reflection. All moral problems are anthropological problems, because moral arguments are built, for the most part, on anthropological presuppositions. That is, as Professor Elshtain has put it, our attempts at moral judgment tend to reflect our “foundational assumptions about what it means to be human." Jean Bethke Elshtain, The Dignity of the Human Person and the Idea of Human Rights: Four Inquiries, 14 JOURNAL OF LAW AND RELIGION 53, 53 (1999-2000). As my colleague John Coughlin has written, the "anthropological question" is both "perennial" and profound: "What does it mean to be a human being?” Rev. John J. Coughlin, Law and Theology: Reflections on What it Means to Be Human, 74 ST. JOHN’S LAW REVIEW 609, 609 (2000).
In one article of mine, "Christian Witness, Moral Anthropology, and the Death Penalty," I explore the implications for the death penalty of a Catholic anthropology, one that emphasizes our "creaturehood" more than, say, our "autonomy." And, my friend Steve Smith (University of San Diego) has an paper out that discusses what a "person as believer" anthropology might mean for our freedom-of-religion jurisprudence that fleshes out excellent article. I wonder if any of my colleagues have any thoughts on these matters?
Friday, February 7, 2020
I enjoyed this piece, "Friendship in a Time of Cyberattack," by my theorist-and-theologian friend (and fellow Duke Blue Devils fan!), Mike Baxter. Pope Francis, Guardini, Pieper, Berry, Simon, and MacIntyre all make appearances in Mike's discussion of friendship, time, technology, the university, and the polis. Here's just a little bit:
What the cyberattack did for us at Regis is open up the possibility of recognizing how our life and work together is so deeply dependent on digital technology and to consider the ways it could be enhanced by making ourselves less dependent on it. . . .
The cyberattack also created commonality between faculty and students, for we were in the same boat, with emails failing, assignments not posting, tests and exams running late. More importantly, there was a more personal touch to the interactions between students and faculty. Papers were graded by hand, in the penmanship of the grader. With no email, more students came by during office hours to ask about something. And there was a deeper sense that class was going to occur in the classroom, with everyone together, rather than dispersed through list-servers, online bulletin boards, and such. Finally, most importantly, it created common ground among faculty, for the simple fact that there was more time, what with fewer meetings, no department and college wide assessments to do, and so on; and with more time comes more conversations about what we are teaching and working on. An added factor here was that with on-line resources down, intellectual conversation is more likely to occur locally, which can be surprisingly fruitful. In other words, with our on-line capacities down, we were less able to have conversations with colleagues across the country and found ourselves drawn more into talking with colleagues down the hall or in the building across the quad.
In these (and other) ways we found ourselves gifted with the time and space for cultivating or renewing friendships in all the varieties and permutations discussed by Aristotle: utility, pleasure, among equals, among those older and younger, and, most importantly, true friendship, based on a common pursuit of the good. . . .
Thursday, January 30, 2020
Here is a short chapter I wrote -- a bit outside of my usual writing-area -- for a forthcoming volume called Christianity and the Criminal Law, on "Attempts, Complicity, Virtue, and the Limits of Law." The abstract:
The law and doctrines of criminal attempts and complicity illustrate the longstanding and fundamental tenet of Anglo-American criminal law that the blame and condemnation of the political community, which gives criminal punishment its distinctive character, attaches primarily to actors’ states of mind rather than to the harms they cause or results they bring about. This focus on blameworthy states of mind both reflects and has been shaped by the similar emphasis in Christian scripture, tradition, and moral teaching. And so, an examination of criminal attempts and complicity is an opportunity to explore Christianity’s influence on the theory, content, and operation of the criminal law. It also reminds us of a central Christian concern that is and has been located, for the most, outside the scope of the criminal law: Christian moral teaching not only enjoins the avoidance of wrongful acts, but also the cultivation and practice of virtue. A Christian life of discipleship, it has been said, “is not simply about performing certain types of actions. It is a vocation, a transformation of one’s very self.” However, this aretaic dimension of Christian morality and moral theology, unlike the nexus between culpability and choice, is difficult to find in the criminal law, which is inclined more toward proscribing acts than prescribing character, more toward forbidding bad conduct than facilitating good character, more toward deterring decisions than transforming selves. It is worth asking why.
Tuesday, January 14, 2020
This Wall Street Journal piece -- which is, I gather, a condensed version of a forthcoming book -- "Saving Democracy from the Managerial Elite", by Michael Lind, is worth a read and might well be of interest to MOJ readers and people interested in Catholic approaches to "the social question." A lot of it echoes things that (many) others have been saying lately -- Chris Arnade, Rusty Reno, Tim Carney, J.D. Vance, Robert Putnam, etc., etc. Two things that struck me (in a good way) were (1) Lind's recognition that, even in the context of this debate, it makes sense to distinguish between public-employee unions and private labor unions, given that the former tend increasingly to reflect and advance the interests of those Lind calls "the managerial elite" at the expense of less mobile and credentialed people and (2) his implicit (I wish it were explicit!) acknowledgement that getting past some of our current polarization and pathologies will require policies that make it possible for traditional religious believers to have meaningful access to alternatives to "public school monopolies" for the education of their children.
Friday, January 10, 2020
My friend and colleague Gerard Bradley has a Public Discourse essay up, which is worth a read, called "Learning from Integralism." A bit:
[T]he First Amendment stipulates that the truth or falsity of putatively revealed propositions is beyond the scope of authoritative resolution by those with care of our political society. The First Amendment does not say, or suppose, or even suggest that all such propositions are in reality somehow equally true (or false), or that they have at most the “truth” of poetry, or that all such alleged revelations are fantastical or mere human projections. Not at all: the First Amendment was ratified by a population that took the tenets of natural and revealed religion most seriously. It has been supported by countless Americans—notably including America’s Catholics—since. By recognizing and affirming the truths of natural religion—including the truth that a divine entity created what there is and sustains it in being out of providential care for humanity—America’s political leaders implicitly endorsed the entailment that such a divine entity would communicate somehow with humankind. They endorsed, in other words, the proposition that genuine revelation is not only possible, but likely.
Monday, January 6, 2020
Here is an interesting opinion piece, by Thomas Hibbs, which discusses (among other things) the work of my Notre Dame colleagues at the Lab for Economic Opportunities. A bit:
We all understand poverty is a problem, one that can seem intractable and inevitable. But what if the way we have approached poverty has been wrong for years, for generations even?
There’s evidence it might be.
The traditional model of the American social service industry has long been a one-size-fits-all approach that treats the symptoms of poverty — transportation, child care, food insecurity — but does nothing to address the cause. The result traps the poor in a never-ending cycle of dependency and stigma, creating repeat customers.
That scathing indictment comes not from a critic of the war on poverty but from one of its most passionate advocates.
Thursday, December 19, 2019
Jon Hannah already noted the good news that the Supreme Court has agreed to review the Ninth Circuit's (misguided) rulings in St. James School and Our Lady of Guadalupe school. In each of these cases, the Ninth Circuit adopted a very narrow version of the "ministerial exception," which was unanimously confirmed to be constitutionally required by the Supreme Court in the Hosanna-Tabor case. Here is an amicus brief, filed on behalf of a number of church-state scholars (including MOJers Michael Moreland and me), urging the Court to grant cert. (and reverse). From the "summary of the argument":
In Hosanna-Tabor, this Court affirmed that the
ministerial exception protects the autonomy of
religious organizations to select those who perform
significant religious functions, including religion
teachers and others who help transmit the faith. Both
history and precedent show that the First
Amendment forbids the government from
“interfer[ing] with the internal governance of the
church.” Hosanna-Tabor, 565 U.S. at 188. And to
protect the right of religious autonomy, religious
organizations must have the freedom to “control . . .
the selection of those who will personify [their] beliefs”
or “teach their faith.” Id. at 188, 196. The ministerial
exception embodies this principle by prohibiting the
government from imposing sanctions on religious
organizations for the hiring and firing of key religious
personnel, including religion teachers.
In the decision below, the Ninth Circuit
misconstrued the ministerial exception in two ways.
First, it misread Hosanna-Tabor as adopting a set of
mechanical requirements that must be satisfied in
every case for the ministerial exception to apply.
Second, it failed to recognize that the core purpose of
protecting religious autonomy requires applying the
exception to all employees who have significant
The Ninth Circuit’s decision not only departs from
this Court’s precedent and the history underpinning
the ministerial exception, but also conflicts with every
other Circuit to address this issue.
Friday, December 6, 2019
For many (Ed.: Many!) years, we at MOJ have highlighted the importance for law and legal theory of attention to philosophical and moral anthropology -- that is, to an understanding of what human persons really are and are for. It's about five years old now, but my friend and colleague Christian Smith's The Sacred Project of American Sociology is a great way to enter the conversation on this crucial subject (especially his appendix on "critical realist personalism").
Meaningful school choice is endorsed clearly in the Church's social teachings. And, it enjoys strong public support, according to a new poll.
Particularly striking is the fact that large numbers of Democratic voters -- indeed, pretty much the same numbers as on the Republican side -- express support for school choice. And yet, it is a near article-of-faith among the Democrats' leadership and activists (in particular, the public-employee-union-members base) that choice-and-opportunity-enhancing measures must be opposed and resisted. A political-market failure, it appears.
Saturday, November 30, 2019
A recent issue of Commonweal includes a short piece by Max Foley-Keene called "Equality Isn't Cheap." Among other things, the author compares the "Nordic Welfare Model" to the "basic-security" model and argues that:
[a] welfare regime based on means-testing and income targeting . . . necessarily divides those who receive benefits from those who don’t. That leads non-recipients to grumble about having to subsidize an underclass of moochers, while recipients are subject to dehumanizing stigma. Such programs tend to be socially divisive and politically unstable. In contrast, universal programs promise to transcend existing economic cleavages and create broad social solidarity, because everyone benefits; this solidarity, in turn, helps protect universal programs from political attack.
He concludes by calling for "a politics that recognizes the satisfaction of social needs as a communal responsibility, that builds broad solidarity around preserving public goods, and that doesn’t fret over spending some cash."
Readers can decide for themselves whether the model Foley-Keene discusses is (in the United States) feasible or morally attractive. I did want to note, though, that from a Catholic perspective -- and notwithstanding the common view that the model or something like it is consistent with, or even supported by, the Church's social teachings -- it cannot be that the state assumes for itself the provision, and "crowd[s] out" non-state providers, the "basic necessity" or "social benefit" of "education." This is because parents have the moral, and in justice the legal, right to direct and control the education of their children and religious communities have the right to operate schools. As is stated in Dignitatis humanae:
Government, in consequence, must acknowledge the right of parents to make a genuinely free choice of schools and of other means of education, and the use of this freedom of choice is not to be made a reason for imposing unjust burdens on parents, whether directly or indirectly. Besides, the right of parents are violated, if their children are forced to attend lessons or instructions which are not in agreement with their religious beliefs, or if a single system of education, from which all religious formation is excluded, is imposed upon all.