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.

Sunday, May 31, 2020

A collection of "Public Discourse" papers on religious freedom, church-state relations, public authority, etc.

Public Discourse has collected, here, a number of articles relating to the ongoing and important conversation about religious freedom, church-state relations, integralism, liberalism, etc.  Authors include Thomas Pink, Robert Miller, Chris Tollefsen, Gerard Bradley, and others.  And, of course, our own Adrian Vermeule has been a prominent contributor to this discussion, here at MOJ and elsewhere.  Enjoy some good Sunday reading!

May 31, 2020 in Garnett, Rick | Permalink

Wednesday, May 27, 2020

"Lessons After the Lockdown: Public Health, Economics, and the Common Good"

This "webinar", brought to us by the Lumen Christi Institute, looks really good:

After two months of lockdown, nations across Europe and parts of the US are relaxing restrictions and facing new challenges. Where do we stand economically and socially? How might we have better protected the medically and economically vulnerable? How should we view the lockdown with its costs and benefits ethically? Our earlier event on "The Economic Costs of the Pandemic: Catholic Social Teaching and Economics in Dialogue,” provoked lively reactions. This event will consider what the principles of the common good, human dignity, justice, and solidarity mean in our present circumstances and how they ought to inform our prudential judgement going forward. Join as a panel of economists, theologians, and ethicists discuss lessons learned in the pandemic.

Useful preparation for the webinar might include Fr. John Jenkins's recent op-ed in The New York Times, regarding the University of Notre Dame's plans to re-open in August.  Among other things, he said:

The pivotal question for us individually and as a society is not whether we should take risks, but what risks are acceptable and why. Disagreements among us on that question are deep and vigorous, but I’d hope for wide agreement that the education of young people — the future leaders of our society — is worth risking a good deal.

Indeed, the mark of a healthy society is its willingness to bear burdens and take risks for the education and well-being of its young. Also worthy of risk is the research that can enable us to deal with the challenges we do and will face.

May 27, 2020 in Garnett, Rick | Permalink

Sunday, May 3, 2020

Henry Garnet, S.J., RIP

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, 2020 in Garnett, Rick | Permalink

Thursday, March 26, 2020

"Religious Liberty and the Common Good"

In National Affairs, William Haun has a worth-reading essay called "Religious Liberty and the Common Good."  He opens with this:

Legal and cultural debates involving religious liberty are converging toward a single question: whether free religious exercise is part of the common good, or what might now be called a society's overall well-being. While Americans have long debated how religious exercise should manifest in the public square, the need for a common good shaped by religious practice went unquestioned. But this has changed over the last generation. Now, American law and culture are questioning whether such debates are worthwhile.

My agreement with much of Haun's essay is, I suppose, overdetermined:  Tocqueville and Burke citations, the happy-warrior spirit of the Becket Fund, etc.  My take on the Smith decision, which Haun criticizes, is different -- not entirely, not the opposite, but different -- from his, though.  Among other things, Haun writes:

The Smith decision presumes a deep tension between religious exercise and the common good. . . .  For Smith, the superseding value is majoritarianism: Religious pluralism is good when democratic majorities decide it is worth their solicitude. 

This does not seem right to me.  Every (plausible) account of religious freedom imposes some limits on religious exercise.  The Second Vatican Council's Declaration on Religious Freedom -- the inspiration, in many ways, for the founding of the Becket Fund! -- refers several times to the "just demands of the public order" and assumes that these demands are among the conditions for flourishing that constitute the "common good" of a community.  To say (as the Smith decision does) that our particular Constitution did not allocate to judges the authority to revise politically accountable actors' determinations about what those demands are is not, it seems to me, either to make an idol (as opposed to a mechanism) of "majoritarianism" nor is it presume a "deep tension" -- as opposed to "the unavoidable occurence of occasional line-drawing exercises" -- between religious exercise and the common good.

In addition, it's not obvious that "religious pluralism" (by which Haun means, if I read correctly, the diversity in our society of religious views and commitments) is "good" so much as it is given, and its manifestations protected (not without limit, again) by our commitment to religious freedom, which is grounded in human dignity.  The extent to which manifestations of this pluralism may or should be regulated, or subordinated to the "just demands of public order" is a question that has to be answered by someone, and it does not seem to me that the Smith resolution of this matter is best interpreted as denying the importance -- the goodness -- of religion.

March 26, 2020 in Garnett, Rick | Permalink

Pope Francis marks the 25th anniversary of Evangelium Vitae

Putting aside the discomfort it causes when things that happened just yesterday turn out to have happened 25 years ago . . .  Here are Pope Francis's general-audience remarks on the occasion of the 25th anniversary of The Gospel of Life.  

March 26, 2020 in Garnett, Rick | Permalink

Wednesday, March 25, 2020

"Proxy Wars Over Religious Liberty"

In the latest/current issue of National Affairs (an excellent publication, IMHO), there's a good essay by Ryan Anderson called Proxy Wars Over Religion.  A bit:

The past decade has witnessed some intense battles over religious liberty. But when you consider the character of those battles, it's often hard to avoid the conclusion that both sides have treated religious liberty as the subject under debate in order to avoid the real points of dispute between them. The resulting political arguments have given us all the impression that religious liberty is more controversial with the American public than it really is, and therefore that the progressive enemies of religious liberty have the political winds at their back. To recover a clearer sense of the matter, we need to be more careful in what we expect of religious liberty and how we understand it. . . . 

This unwillingness to engage the substantive moral debates that actually divide us in the culture war leaves us fighting proxy wars over religious liberty. These wars confuse the issue, and put at risk our capacity to defend the rightful place and purpose of religious liberty. . . .

March 25, 2020 in Garnett, Rick | Permalink

What It Means To Be Human: The Case for the Body in Public Bioethics

Congratulations to my friend and colleague, Carter Snead, on his forthcoming (timely, important) bookWhat It Means To Be Human.  As longtime MOJ readers know [Ed.:  All too well, Rick; you never shut up about it.]  The issue of moral anthropology is at the heart and foundation of any plausible account of "Catholic Legal Theory."   Here's a blurb: 

The natural limits of the human body make us vulnerable and therefore dependent, throughout our lives, on others. Yet American law and policy disregard these stubborn facts, with statutes and judicial decisions that presume people to be autonomous, defined by their capacity to choose. As legal scholar O. Carter Snead points out, this individualistic ideology captures important truths about human freedom, but it also means that we have no obligations to each other unless we actively, voluntarily embrace them. Under such circumstances, the neediest must rely on charitable care. When it is not forthcoming, law and policy cannot adequately respond.

What It Means to Be Human makes the case for a new paradigm, one that better represents the gifts and challenges of being human. Inspired by the insights of Alasdair MacIntyre and Charles Taylor, Snead proposes a vision of human identity and flourishing that supports those who are profoundly vulnerable and dependent―children, the disabled, and the elderly. To show how such a vision would affect law and policy, he addresses three complex issues in bioethics: abortion, assisted reproductive technology, and end-of-life decisions. Avoiding typical dichotomies of conservative-versus-liberal and secular-versus-religious, Snead recasts debates over these issues and situates them within his framework of embodiment and dependence. He concludes that, if the law is built on premises that reflect the fully lived reality of life, it will provide support for the vulnerable, including the unborn, mothers, families, and those nearing the end of their lives. In this way, he argues, policy can ensure that people have the care they need in order to thrive.

In this provocative and consequential book, Snead rethinks how the law represents human experiences so that it might govern more wisely, justly, and humanely.

I've read the MS, and it's wonderful, in the tradition of Meilaender, Kass, MacIntyre . . . 

March 25, 2020 in Garnett, Rick | Permalink

Wednesday, March 18, 2020

"On the coronavirus, rapid aging, falling fertility, and Humanae Vitae"

An interesting piece by the always-perceptive John Allen:

Amid the scramble to find a cure for the coronavirus and, in the meantime, to enforce restrictive measures to try to slow down its expansion, there’s been relatively little attention to the underlying factors which may explain why some places have been harder hit, more quickly, than others.

One emerging hypothesis, however, is that there may be a correlation between declining fertility rates and rapidly rising elderly populations in many societies around the world, and the extent to which those societies have been impacted by the coronavirus.

For the Catholic Church, which has sounded alarms about declining fertility for decades, the situation could offer a grim confirmation of its diagnosis that a rapidly aging society places its future in jeopardy – though no one’s likely to celebrate that it’s required a global pandemic which, to date, has claimed more than 7,000 lives, to put the issue back on the table. . . .

Read the whole thing.

March 18, 2020 in Garnett, Rick | Permalink

Monday, March 2, 2020

"The Nuclear Family Was a Mistake"

It is, I realize, fashionable to roll one's eyes (or do worse!) over David Brooks's meaning-mongering, but . . . I thought this essay, "The Nuclear Family Was a Mistake", was a really good read.  (I'd also recommend Brad Wilcox's response.)  In more than a view places, Brooks touches on themes that resonate with Catholic anthropology.  For example:

As factories opened in the big U.S. cities, in the late 19th and early 20th centuries, young men and women left their extended families to chase the American dream. These young people married as soon as they could. A young man on a farm might wait until 26 to get married; in the lonely city, men married at 22 or 23. From 1890 to 1960, the average age of first marriage dropped by 3.6 years for men and 2.2 years for women.

The families they started were nuclear families. The decline of multigenerational cohabiting families exactly mirrors the decline in farm employment. Children were no longer raised to assume economic roles—they were raised so that at adolescence they could fly from the nest, become independent, and seek partners of their own. They were raised not for embeddedness but for autonomy. By the 1920s, the nuclear family with a male breadwinner had replaced the corporate family as the dominant family form. By 1960, 77.5 percent of all children were living with their two parents, who were married, and apart from their extended family.

Interestingly, many "progressives" who will (reflexively?) recoil from what might seem "conservative" in Brooks's piece also tend to support a political figure, Sen. Elizabeth Warren, who made many consonant points in her "controversial" 2004 book, The Two Income Trap.


March 2, 2020 in Garnett, Rick | Permalink

Friday, February 28, 2020

Manent on "Our Post-Liberal Predicament"

In the Church Life Journal, a great piece from Pierre Manent.  A bit:

I believe that the most precise way to designate what afflicts us, what troubles and demoralizes us, is to say simply: we no longer know what law is; we have lost the intelligence of law. The point is not to deplore that we disobey the law, that our morals are disordered, that the youth, as is often said, are without standards—all that is perhaps true, but the main point is that we no longer understand what the law is about. We no longer understand law according to its essence. We no longer understand law as the rule and measure of action. Our most urgent task is therefore to recover the intelligence of law as rule and measure of action. Thomas Aquinas is certainly the author who can best help us—Christians as well as non-Christians confronted with the loss of law’s meaning—to carry out this task, if only we make the effort to understand his work in its full amplitude. Our purpose is nevertheless not so much to expound Thomas’s restorative views as to examine our predicament more closely.

I have said that we have lost an understanding of law, or law’s intelligence. We have not lost it by inadvertence or negligence. We have lost it because we wanted to lose it. More precisely, we have fled from law. We are still fleeing from it. We have been fleeing from law since we took up the project—let us call it “the modern project”—to organize common life, the human world, on a basis other than law. We have been fleeing from the law since we undertook to regulate our actions otherwise than by law, to seek the rule of our actions elsewhere than in law. This is not a matter of a moment’s distraction or mistake. What is at stake is an immense enterprise to which we owe, for better and for worse, the driving and ordering of our common life over three or four centuries.

February 28, 2020 in Garnett, Rick | Permalink