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Is Sovereignty Protestant?

I spent last weekend participating in an interesting Federalist Society/Liberty Fund colloquium, “International Law, Foreign Law, and the Constitution.” Some of readings for the colloquium discussed the development of the concept of sovereignty in international law. It’s striking how closely the concept relates, historically, to the Protestant Reformation. The great theoreticians of sovereignty were mostly, though not exclusively, Protestants seeking to provide an intellectual grounding for the Westphalian system, people like Grotius and Vattel, though Vattel is more an Enlightenment than a Christian thinker, it seems to me. Even Bodin, the 16th Century French writer credited with the first comprehensive theory of sovereignty, was a crypto-Protestant, at least according to the Tudor secret police.

The core components of Westphalian sovereignty were the equality and independence of states. Each state had an equal right to govern itself and no state had the right to meddle in another’s internal affairs. The non-interference principle extended especially to religion. According to Vattel, for example, the Law of Nations, a set of rules derived from natural law, prohibited attempts to impose the “true faith” on a state from the outside. In fact, Vattel argued, even peaceful missionary work was prohibited, unless the local government allowed it. (Vattel made an exception for the Twelve Apostles; they had resisted the state’s attempts to silence them, he conceded, but they could perform miracles). Sovereignty, presented as a matter of natural law, greatly assisted the Protestant Reformers, who were seeking a principled, “neutral” justification for resisting the Catholic Church’s assertions of universal jurisdiction. It takes a natural law to beat a natural law.

Protestants and Catholics don’t fight about these things so much anymore, but one can see a similar pattern in contemporary disputes about international human rights. Even though contemporary human rights law tends to speak in a secular idiom, it’s hard to miss the strong religious, natural law aspect of some of its key concepts, such as “human dignity.” International human rights advocates assert that these concepts are universally true and must apply as a matter of law everywhere. States that resist, in turn, often assert their sovereignty, and their position is often a moral one: “You can’t impose your norms here, because this is our country, and we have the right to decide.” Sovereignty thus continues to serve its historical function as a mechanism for resisting centralized moral authority in a fight about ultimate value. – MLM

Posted on by Marc O. DeGirolami

New Issue of the Journal of Catholic Legal Studies

The Journal of Catholic Legal Studies at St. John’s University School of Law (which I am privileged to advise) has just published its new issue, which contains a symposium dealing with the question, “Whom Should a Catholic Law School Honor?” and a book symposium on Professor Robert Vischer’s Conscience and the Common Good: Reclaiming the Space Between Person and State (CUP 2009).  — MOD

Posted on by Marc O. DeGirolami

Legal Indictments and Indictments of Other Kinds

When someone is indicted in criminal law, the meaning of the indictment is that a grand jury has found that it is more probable than not that the accused has committed a specific criminal offense.  An indictment is an accusation by the government.  The accused cannot be brought to trial without it.  One ought to take note of an indictment, but one ought also to recognize that different standards of proof govern indictments than criminal trials and that little in the way of evidence is often needed to obtain an indictment.  Lastly, there is generally no opportunity to present exculpatory evidence or make any pre-trial motions in the indictment process.  The indictment is the prosecutor’s instrument alone.  I know that many readers will know this, but I thought it might be useful to clarify the specific and limited quality of a legal indictment since Bishop Finn was indicted under a Missouri statute.  I believe, but am not sure, that the statute is section 210.115.1 of the Missouri Code, which states:

When any . . .  minister . . . has reasonable cause to suspect that a child has been or may be subjected to abuse or neglect or observes a child being subjected to conditions or circumstances which would reasonably result in abuse or neglect, that person shall immediately report or cause a report to be made to the division in accordance with the provisions of sections 210.109 to 210.183 . . . .

One of the reasons that I think it important to emphasize the particular and somewhat arcane legal meaning of an indictment is because of columns like this one by Anthea Butler, a professor of religion at the University of Pennsylvania, who titles her piece, “Bishop Finn-dicted For Protecting Pedophile Priest.”

Professor Butler properly notes the fact of Bishop Finn’s indictment, but then makes some statements which, at least from a legal perspective, are not sound.  She claims, for example, that “the indictment is another warning shot aimed at the enclave of the Vatican.”  The expression of symbolic minatory messages is not the purpose of a legal indictment.  She connects the indictment to “[c]hanges to the liturgy” which she believes “have many up in arms[.]”  Again, liturgical preferences have nothing at all to do with this indictment.  She claims that “Cardinals and Bishops like Philadelphia’s Bishop Chaput can only whine about how terrible the press is, without being accountable for the actions that have caused the press to scrutinize the church so intensely.”  If this is a reference to the indictment of Bishop Finn, I’m afraid it is misplaced.  “Cardinals and Bishops like Philadelphia’s Bishop Chaput” had no legal duty to report child abuse under the Missouri statute.

And Professor Butler concludes with this: “The church does not need another plan; what’s needed is action and more indictments to get the attention of an institution that has sacrificed children to protect its rotten hierarchy. I for one cannot wait for the real purge of tainted clerics to happen.”  Once again, Professor Butler’s excitement for the coming purge and the issuance of “more indictments” has nothing to do with the legal indictment of Bishop Finn.

Obviously Professor Butler is interested in indictments of other kinds — political, social, cultural, religious — but these are not legal indictments, and I think it important to keep the difference clearly in view.  — MOD

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Infernal Obsolescence

This is an interesting piece by J. Peter Nixon about how traditional views of hell are increasingly seen as tiresome, motivationally inefficacious, and generally outré.  The story neglects an important piece of the banalization of hell, of course.  From Sartre’s No Exit — as you remember, the scene is a drawing room decorated in Second Empire furnishings (which I’ve always kind of liked, though to Sartre’s modernist taste, it looked “rather like a dentist’s waiting room”) in which three people are trapped with nothing but each other.  — MOD

Garcin: Will night never come?

Inez: Never.

Garcin: You will always see me?

Inez: Always.

Garcin: This bronze.  Yes, now’s the moment; I’m looking at this thing on the mantelpiece, and I understand that I’m in hell.  I tell you, everything’s been thought out beforehand.  They knew I’d stand at the fireplace stroking this thing of bronze, with all those eyes intent on me.  Devouring me.  What?  Only two of you?  I thought there were more; many more.  So this is hell.  I’d never have believed it.  You remember all we were told about the torture-chambers, the fire and brimstone, the “burning marl.”  Old-wives’ tales!  There’s no need for red-hot pokers.  Hell is — other people! 

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Duffy’s “Ten Popes Who Shook the World”

Historian Eamon Duffy (Cambridge) is justly famous for his magnificent book, The Stripping of the Altars: Traditional Religion in England, 1400-1580, in which he detailed the situation of English Catholicism at the hands of the Tudor monarchy during the Protestant Reformation.

He will soon publish Ten Popes Who Shook the World (Yale UP 2011), which looks to be a wonderful treatment of several of the most important popes in history.  Unlike some other books about the papacy which have recently been published, this is sure to be a serious, though still readable, study.  I only wish that Duffy had included Pope Leo XIII.  As my old students in Catholic Social Thought and The Law will remember, Leo XIII was a deeply important and influential pope.  The publisher’s description follows.  — MOD

The Bishops of Rome have been Christianity’s most powerful leaders for nearly two millennia, and their influence has extended far beyond the purely spiritual. The popes have played a central role in the history of Europe and the wider world, not only shouldering the spiritual burdens of their ancient office, but also in contending with – and sometimes precipitating – the cultural and political crises of their times. In an acclaimed series of BBC radio broadcasts Eamon Duffy explored the impact of ten popes he judged to be among ‘the most influential in history’. With this book, readers may now also enjoy Duffy’s portraits of ten exceptional men who shook the world.

The book begins with St Peter, the Rock upon whom the Catholic Church was built, and follows with Leo the Great (fifth century), Gregory the Great (sixth century), Gregory VII (eleventh century), Innocent III (thirteenth century), Paul III (sixteenth century), and Pius IX (nineteenth century). Among twentieth-century popes, Duffy examines the lives and contributions of Pius XII, who was elected on the eve of the Second World War, the kindly John XXIII, who captured the world’s imagination, and John Paul II, the first non-Italian pope in 450 years. Each of these ten extraordinary individuals, Duffy shows, shaped their own worlds, and in the process, helped to create ours.. Each of these ten, Duffy shows, was an extraordinary individual who helped shape the world we know today.

Posted on by Mark Movsesian

Liveblogging Forum 2000: Religion and Human Rights

Forum 2000‘s  first law-and-religion panel, “Religious Law and Human Rights,” took place this afternoon, chaired by Prince El Hassan bin Talal of Jordan.  Prince Hassan opened the panel by speaking of the need for a real “bill of rights” for the “West Asian/North African” region, one that includes the right to be free from religious discrimination.  Michael Melchior, the Chief Rabbi of Norway, followed.  He noted the size of the audience that had gathered to hear the panel and said it reflected a new interest among intellectuals and policymakers in religion as a social phenomenon.  “God,” he said, “has returned to history.”  All religions, he continued – speaking of the Abrahamic faiths – have both totalitarian and dialectical impulses; we need to “minimalize the former and maximalize the latter,” and predicted that religious and political leaders have only a limited window of opportunity to accomplish this.  Journalist Shahira Amin from Egypt spoke about her doubts that the Arab Spring will usher in a secular society.  Although Egypt is historically a moderate society, she said, present-day Egyptian Islam is becoming radicalized as a result of Wahhabi influence.  Discrimination against Coptic Christians is a problem. She noted, though, that the Muslim Brotherhood has been speaking in more moderate terms since the revolution, perhaps in an attempt to appear politically responsible.  Tibetan Buddhist scholar Geshe Tenzin Dhargye spoke of the two key ethical principles in Buddhism, the laws of causation (karma) and non-harming behavior, and how they would inform a Buddhist approach to law and society.  In the final presentation, Bishop Václav Malý of the Catholic Archdiocese of Prague argued that Christianity provided the philosophical roots for human rights, “at least in Europe.”  Although people have now forgotten those roots, as a historical matter it was the Christian concept of Imago Dei that implied human dignity and freedom, including freedom of conscience and religion. He ended by saying that the Catholic Church in the Czech Republic does not favor a confessional state, but a pluralist state in which people with different religious and philosophical commitments, including non-religious commitments, can peacefully co-exist.  – MLM

For those not fortunate to be liveblogging from Prague, a live feed to Forum 2000 can be found here. – ARH

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Religious Freedom as the Problem of the Future

John Allen has a thoughtful column today about religious freedom as the dominant issue for the future of Catholicism.  He identifies three historical movements which have thrust religious liberty into the foreground: (1) the secularization of Western nations, and the concomitant sense in which Western states will become increasingly hostile to Catholicism and Christianity generally; (2) the reality that increasingly large numbers of Catholics come from the southern hemisphere, where they face dire threats to life and limb (and I take the point about the ministerial exemption that Allen makes); and (3) the shift from Judaism to Islam as Catholicism’s primary interlocutor.  Here’s a bit from Allen’s discussion of the last shift.  — MOD

As Islam becomes the paradigmatic relationship, however, Catholic psychology has begun to shift. Today, Catholics are less inclined to assume that the problem lies on their side of any inter-faith dialogue; they’ve become more inclined to point to distortions and excesses on the other side as well. That’s a prescription for a more balanced and substantive, but also more combustible, form of dialogue.

By far, the most common area where one sees this new Catholic willingness to push back is religious freedom, and not just in the relationship with Islam. It also surfaces, for instance, in the dialogue with Hinduism, given the alarming spread of Hindu nationalism and radicalism in some regions of India. The worry is that violent anti-Christian pogroms that broke out in the state of Orissa in 2008 may be a preview of coming attractions.

Posted on by Marc O. DeGirolami

The Red Mass and Washington Churches

Today marks the first day of the Supreme Court’s 2011 term, and some of the Justices noted it yesterday by attending the Red Mass at the lovely Cathedral of St. Matthew the Apostle (image at right).

Here is an interesting looking book by Thomas A. Tweed (University of Texas) about another Washington D.C. church, America’s Church: The National Shrine and Catholic Presence in the Nation’s Capital (OUP 2011).  It brings back memories from my short stint at The Catholic University of America a couple years back.  The publisher’s description follows.  — MOD

The National Shrine in Washington, DC has been deeply loved, blithely ignored, and passionately criticized. It has been praised as a “dazzling jewel” and dismissed as a “towering Byzantine beach ball.” In this intriguing and inventive book, Thomas Tweed shows that the Shrine is also an illuminating site from which to tell the story of twentieth-century Catholicism. He organizes his narrative around six themes that characterize U.S. Catholicism, and he ties these themes to the Shrine’s material culture–to images, artifacts, or devotional spaces. Thus he begins with the Basilica’s foundation stone, weaving it into a discussion of “brick and mortar” Catholicism, the drive to build institutions. To highlight the Church’s inclination to appeal to women, he looks at fund-raising for the Mary Memorial Altar, and he focuses on the Filipino oratory to Our Lady of Antipolo to illustrate the Church’s outreach to immigrants. Throughout, he employs painstaking detective work to shine a light on the many facets of American Catholicism reflected in the shrine.

Posted on by Marc O. DeGirolami

Maureen Dowd’s Column Today

It’s clear enough that Maureen Dowd disagrees with several of Justice Scalia’s views: abortion, co-ed college dorms, capital punishment, and attendance of the Justices at the Red Mass are among them (though I don’t think that Justice Scalia has expressed any public view on the last of these, though I may be wrong). It’s not exactly clear to me whether she disagrees with Catholics expressing their views as such, or disagrees with the subjects about which they choose to express themselves, or disagrees with the positions that they stake out, or all three.

Just a quick note on the complex doctrine of cooperation in evil. Read more

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Calo on Catholicism, Liberalism and Human Rights

Zachary Calo (Valparaiso) has posted Catholicism, Liberalism and Human Rights, on SSRN.  The abstract follows. — MLM

Human rights is the dominant moral category of modernity. As both a theoretical concept and the basis of legal norms, human rights shapes the way we think and talk about personhood, social justice, and political obligation. Yet, it is also the case that there is no one account of human rights, but rather competing traditions of human rights that strive for primacy. Human rights, in short, is a deeply contested category through which different moral visions aim to shape institutions and policies. In spite of the label, human rights claims are not universal, either methodologically or substantively. Rather, under the umbrella of human rights is located a constant struggle between the universal and the particular. How this tension unfolds, and whether it does so in a constructive or disruptive manner, is one of the foundational questions that must be engaged in coming years.

In the past, the tension between universality and particularity was considered most commonly in the context of cultural relativism, with particular attention given to the ways in which human rights was a western construct that could not adequately account for different forms of communal values. This issue remains important, though this paper advances the claim that the most significant point of tension is not between human rights values and non-human rights values, but rather a tension within the idea human rights. More specifically, the primary fault line concerns the role of religion and religious traditions as they relate to human Read more