Journal of Christian Legal Thought Fall 2011

Journal of Christian legal thought

Vol. 1, no. 2fall 2011

The Scholar’s Calling 3

The Top and Bottom of the Ninth 5

A Beauty that Beckons to Us 7 Catholicism, Liberalism and Human Rights 9

JournalofChristianlegalthought fall2011

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Published by The Institute for Christian Legal Studies,

a Cooperative Ministry of

The Christian Legal Societyand

Regent University School of Law

The Mission of ICLS is:To train and encourage Christian law students, law professors, pre-law advisors, and practicing lawyers to seek and study Biblical truth, including the natural law tradition, as it relates to law and legal institutions, and to encourage them in their spiritual formation and growth, their compassionate outreach to the poor and needy, and the integration of Christian faith and practice with their study, teaching, and practice of law.

Editorial Advisory Board:William S. Brewbaker, IIIAssociate Dean andWilliam Alfred Rose Professor of LawUniversity of Alabama School of Law

Zachary R. CaloAssociate Professor of LawValparaiso University School of Law

Kevin J. LeeProfessor, Campbell University School of Law

C. Scott PryorProfessor, Regent University School of Law

Michael A. ScaperlandaGene and Elaine Edwards Chair of Family Law,University of Oklahoma College of Law

Robert K. VischerProfessor, University of St. Thomas School of Law

Editor in Chief:Michael P. SchuttAssociate Professor, Regent University School of LawDirector, Institute for Christian Legal Studies

Statement of PurposeThe mission of the Journal of Christian Legal Thought is to equip and encourage legal professionals to seek and study biblical truth as it relates to law, the practice of law, and legal institutions. Theological reflection on the law, a lawyer’s work, and legal institutions is central to a lawyer’s calling; therefore, all Christian lawyers and law students have an obligation to consider the nature and purpose of human law, its sources and development, and its relationship to the revealed will of God, as well as the practical impli-cations of the Christian faith for their daily work. The Journal exists to help practicing lawyers, law students, judges, and legal scholars engage in this theological and practical reflection, both as a professional community and as individuals. The Journal seeks, first, to provide practitioners and students a vehicle through which to engage Christian legal scholarship that will enhance this reflection as it relates to their daily work, and, second, to provide legal scholars a peer-reviewed medium through which to explore the law in light of Scripture, under the broad influence of the doctrines and creeds of the Christian faith, and on the shoulders of the communion of saints across the ages. Given the depth and sophistication of so much of the best Christian legal scholarship today, the Journal recognizes that sometimes these two purposes will be at odds. While the Journal of Christian Legal Thought will maintain a relatively consistent point of contact with the concerns of practitioners, it will also seek to engage intra-scholarly debates, welcome inter-disci-plinary scholarship, and encourage innovative scholarly theological debate. The Journal seeks to be a forum where complex issues may be discussed and debated.

Editorial Policy The Journal seeks original scholarly articles address-ing the integration of the Christian faith and legal study or practice, broadly understood, including the influence of Christianity on law, the relationship between law and Christianity, and the role of faith in the lawyer’s work. Articles should reflect a Christian perspective and con-sider Scripture an authoritative source of revealed truth. Protestant, Roman Catholic, and Orthodox perspectives are welcome as within the broad stream of Christianity. However, articles and essays do not necessarily reflect the views of the Institute for Christian Legal Studies, the Christian Legal Society, Regent University School of Law, or other sponsoring institutions or indi-viduals. To submit articles or suggestions for the Journal, send a query or suggestion to Mike Schutt at [email protected].

Journal of Christian legal thought

Vol. 1, no. 2 • fall 2011

ChristianlegalsoCiety Journalspring2011

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In his Reflections on the Psalms, C.S. Lewis shares A Word About Praising that I’ve always found fascinating. The basic pitch of this short chapter

is that all enjoyment spontaneously overflows into praise. One cannot have a good meal without saying, “Boy, that was good.” One cannot see a sunset without remarking, “Wow.” Lewis says that this inclination to praise can be suppressed through fear or shyness or whatever cause, but it is indeed our very nature to praise, and to praise spontaneously. He goes further: “Just as men spontaneously praise whatever they value, so they spontaneously urge us to join them in praising it: ‘Isn’t she lovely? Wasn’t it glorious? Don’t you think that magnificent?’”1 So not only do we naturally praise, we also naturally urge others to praise:

I think we delight to praise what we enjoy because the praise not merely expresses but completes the enjoyment; it is its appointed consummation. It is not out of compliment that lovers keep on telling one another how beautiful they are; the delight is incomplete till it is expressed. It is frustrating to have discovered a new author and not be able to tell anyone how good he is; to come suddenly, at the turn of the road, upon some mountain valley of unexpected grandeur and then to have to keep silent, . . . to hear a good joke and find no one to share it with.2

Consider that. We are created to praise. It is part of our nature as human beings to praise and to call others to praise. It is a natural outflow of what we see, of our experience of goodness, truth, and beauty. When we experience or learn something that is good or true or beautiful, we praise it, and we urge others to praise it. I suggest that one of the essential characteristics of the scholar’s calling is found in this truth about praise. Our calling as scholars is rooted in the intersection within us where enjoyment of learning and praise meet. Our love of learning is not fully


consummated, not fully complete, until it is shared with others. So the appointed consummation of our enjoyment in discerning goodness, truth, or beauty in the law is to praise it. So scholarship is really praise. We are learners created to seek things that we don’t know. When we find them, our natural inclination – for those of us who have the gift of learning, of curiosity, of seeking truth and goodness in the law—is to praise these things by telling others. Our natural inclination in our calling is to praise goodness, truth, and beauty in the law by writing about it, by sharing it with others – our students, our colleagues-- by kicking it around in community. If, then, Lewis is right about this inclination being rooted in human nature, then our failure to praise and urge others to do the same is to reject something essential in our nature. So if we are called as learners and we don’t praise what is good and beautiful in our learning, we reject our calling as human beings created in God’s image. In the Medieval world, this rejection would be called “sloth,” or acedia, a spiritual apathy that causes us to reject our calling and our duty.3 Aquinas defined sloth as considering a worthwhile good to be not worth pursuing. When we know there is something we are created to pursue, yet we are too spiritually lazy, too unengaged to pursue that good – that’s real sloth. I believe that Christian scholars have a real opportunity in these days of slothfulness to pursue and praise what is good and true and beautiful in the law. The deadly sin of sloth surrounds us. I see our work as Christian scholars as addressing sloth in one of three places, depending on where God has placed us. First, I see a calling to engage the sloth in the great thinkers of contemporary times. Some of the most prolific, unlazy, workaholic scholars in the West today are slothful in the Medieval sense. Richard Posner and Christopher Hitchens come to mind, for different reasons, as slothful in the classic

The Scholar’s Calling

By Michael P. SchuttEditor

continued on next page1 C.S. LewiS, RefLeCtionS on the PSaLmS 94-95 (1958).2 Id. at 95. 3 See JoSef PiePeR, LeiSuRe, the BaSiS of CuLtuRe (1948)


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sense. Both claim that ultimate goods – mysteries at the heart of the universe or the nature of the human person for example – are not worth talking or thinking about. Posner, for example, says because human beings are just clever animals (rather than created beings), we ought not to pursue some “deep mystery at the heart of the universe” in our jurisprudence. As a result, pragmatism is the preferred path of legal theory. We’re simply not created to pursue abstract and metaphysical truth.4 Posner is not lazy. He’s not evil. He’s one of the great legal minds of our time. But he’s missing the essential point of his calling – to actually pursue the deep mysteries at the heart of the universe, at least as they intersect with the law. Another example of contemporary acedia is Hitchens, who may be the greatest essayist of our times. Yet he writes that “God is not great” and that “religion poisons everything.” God is not worth pursuing.5 So he too is slothful in the medieval sense, despite his otherwise deep and prolific work. I think many Christian scholars are called to engage this sort of sloth in the world around us and urge others to pursue and praise truth, goodness, and beauty, rather than to reject it. Second, some are called to address the acedia in their students. We are not all teachers, but if the scholarly calling is to encourage others to praise what is praiseworthy, then teaching and scholarship go hand in hand. Perhaps for such a time as this: Despair is creeping into this generation of students. It is rampant among college and law students, especially those concerned with what they call “social justice,” human rights, and the civil polity. They look at the justice system and say “there can be no justice.” They look at the courts and say “there is no truth.” They despair of the ability of secular institutions to do what is good, or true, or right, or just. They despair of justice. Aquinas taught that it is acedia that leads ultimately to despair. If we say that this worthwhile good, the pursuit of justice, is not worth pursuing, then we become cynical about legal institutions and law. If we are totally cynical, we say that the good ends of just laws and just civil institutions are not worth pursuing. This is slothful. Our students need us as scholars and teachers to inspire them, to say there is a goodness, a truth, and a beauty, and while it cannot be reached perfectly in these temporal institutions, it is yet worth pursuing. Finally, we need to engage the sloth in our own work. We need to engage the acedia we see in our world and in our students, but we also need to address the spiritual apathy in our own teaching,

in our own scholarship, in our own writing. We often value pragmatism over truth. We tell our students that we are Christians, that we pursue truth, goodness, and beauty in the law. Yet we value busyness over contemplation, pragmatism over the truth, what’s easy over the difficult work of mining out these truths and speaking them. Sometimes we’re afraid to do it. Sometimes we’re afraid of what other colleagues will think of us. Our own fear, maybe our own apathy, and maybe even some old-fashioned laziness, keep us from doing the hard work of pursuing truth and the ensuing praise that it calls for. In short, our calling, in addition to learning to praise what is true and good and beautiful in the law, is also to address the creeping sloth in the world, in our students, and in our own lives.

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This view of the scholar’s calling is on display in two very different articles in this issue of the Journal. In The Beauty that Beckons To Us, Professor Kevin Lee calls us to examine the ordinary beauty of the law more carefully, even in our daily practice. In moving toward this end—and away from our law-yerly cynicism, he sketches an outline of Christian thinking about beauty as a way to illuminate ordi-nary life. Professor Zachary Calo tackles a more tradi-tional subject, human rights, and highlights the deep relevance of moral reflection to any theory of human rights. More specifically, Professor Calo examines the influence of Catholic social teaching in the development of distinctly Christian views of human rights, while demonstrating the tension between the various moral frameworks claiming to justify the very idea of human rights. Both pieces, then, urge us toward faithful praise of what is good in the law, and help us resist the sloth that can so easily characterize our lives and practice. I pray you will be encouraged as you read this issue.

Adapted from the keynote address to the Christian Legal Scholar’s Symposium at the 2008 Christian Legal Society National Conference. It is published in full at 7 Regent J. Int’l Law 25 (Spring 2009, No. 1).

________Mike Schutt is the director of the Christian Legal Society’s Law Student Ministries and the Institute for Christian Legal Studies, a cooperative ministry of CLS and Regent University School of Law. He is the author of Redeeming Law: Christian Calling and the Legal Profession (InterVarsity Press 2007) and is an associate professor at Regent University School of Law.

4 See RiChaRd a. PoSneR, Law, PRagmatiSm and demoCRaCy 4 (2003).

5 See ChRiStoPeheR hitChenS, god iS not gReat: how ReLi-gion PoiSonS eveRything (2007).


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The Ninth Circuit Court of Appeals encom-passes over one-third of the United State’s geographical area and nearly one-fifth of its

population. For better or worse, its legal influence reflects its geographical and population dominance. In the past two months, the Ninth Circuit has churned out a number of decisions with notewor-thy religious liberty implications that may spread to other circuits in the next few years. First, a favorable decision came from the Ninth Circuit in Intermountain Fair Housing Council v. Boise Rescue Mission Ministries, 2011 WL 4347029 (9th Cir., Sept. 19, 2011). The Boise Rescue Mission Ministries, a non-profit Christian organization, ran a residential drug treatment program that did not charge for its services but required its participants to be, or want to be, Christians. During the intense year-long program, participants were required to attend a broad range of Christian activities, includ-ing worship services, prayer groups, and Bible study, a requirement made known to all applicants for the program. Separately, the ministry’s two homeless shelters gave people a free place to sleep and eat. Open to persons of all faiths, the shelters encour-aged but did not require their guests to attend cha-pel services and morning devotions. The ministry was sued under the federal Fair Housing Act (FHA) for discrimination on the basis of religion by a woman who had avoided a jail sen-tence by agreeing to participate in the residential drug treatment program and by a man who had stayed at the homeless shelters. Both filed com-plaints with the federal Department of Housing and Urban Development, which dismissed the com-plaints for lack of evidence. They then filed suit but lost in the district court. On appeal, the Ninth Circuit held that the resi-dential drug treatment program and the shelters all fell within the FHA’s exemption under which reli-gious organizations that own or operate dwellings for a noncommercial purpose may give preference to, or limit use by, “persons of the same religion … unless membership in such religion is restricted

on account of race, color, or national origin.” 42 U.S.C. § 3607(a). Saying that the exemption must be construed narrowly, the court nonetheless ruled that the ministry could limit its drug treatment program to persons who shared its faith and could require its participants to become Christians in order to “graduate” from the program. Similarly, under the exemption, the homeless shelters could “prefer” guests who attended religious services. The alleged preference had been the practice of letting guests who attended services go first in the food line. The Ninth Circuit hit a home run in Boise Recue Mission but then went 0-for-3 in cases involv-ing religion at public schools and universities. In Alpha Delta Chi-Delta Chapter v. Reed, 648 F.3d 790 (9th Cir. 2011), the Ninth Circuit acknowledged that in Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010), the Supreme Court refused to decide whether a public university could apply a nondiscrimination policy to prohibit a religious group’s requirement that its leaders and members affirm its religious beliefs. Four justices would have decided the issue in favor of the religious groups and found that application of a nondiscrimination policy to restrict religious groups’ ability to choose their leaders violated the First Amendment. Only one justice, now retired Justice Stevens, stated that such a troubling application of a nondiscrimination policy was permissible. The remaining four justices explicitly stated they were not addressing that ques-tion. Despite acknowledging that the Martinez deci-sion did not mandate its result, the Ninth Circuit determined that a public university could exclude religious groups from campus by deeming their requirement that their officers and members agree with their religious beliefs to be “religious dis-crimination” in violation of the university’s nondis-crimination policy. The case was then remanded to determine whether the policy had been applied to other student groups and not just religious groups.

The Top and Bottom of the NinthBy Kimberlee Wood Colby

Senior Counsel, Center for Law and Religious Freedom

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Of course, the Ninth Circuit overlooks the critical fact that nondiscrimination policies are sup-posed to protect religious students from harassment on the basis of their religious beliefs not be used as an instrument to exclude religious groups from cam-pus. It is hard to think of anything more harassing than campus officials tossing religious groups off campus because they want to be religious. But the Ninth Circuit typically treads where other jurists fear to go. Indeed, Judge Ripple, sitting by designation from the Seventh Circuit, brilliantly elucidated the error of the majority’s reasoning when he wrote:

Most groups dedicated to forwarding the rights of a “protected” group are able to couch their membership requirements in terms of shared beliefs, as opposed to shared status. . . . Religious students, however, do not have this luxury—their shared beliefs coincide with their shared status. They cannot otherwise define themselves and not run afoul of the nondiscrimination policy. . . . The Catholic Newman Center cannot restrict its leadership—those who organize and lead weekly worship ser-vices—to members in good standing of the Catholic Church without violating the policy. Groups whose main purpose is to engage in the exercise of religious freedoms do not possess the same means of accommodating the heavy hand of the State. The net result of this selective policy is therefore to marginalize in the life of the institution those activities, prac-tices and discourses that are religiously based. While those who espouse other causes may control their membership and come together for mutual support, oth-ers, including those exercising one of our most fundamental liberties—the right to free exercise of one’s religion—cannot, at least on equal terms.1

The student group likely will appeal to the United States Supreme Court this fall. In the mean-

time, Judge Ripple’s opinion is a welcome supple-ment to Justice Alito’s brilliant dissent in Martinez, 130 S. Ct. at 3009, joined by the Chief Justice and Justices Scalia and Thomas, which explained why a wooden application of nondiscrimination policies to prevent religious groups from choosing their leaders according to their religious beliefs is view-point discrimination that violates religious groups’ freedom of speech. In C.F. v. Capistrano Unified School District, 2011 WL 3634159 (9th Cir., Aug. 19, 2011), a sophomore high school student in an Advanced Placement European History class was offended by the teach-er’s classroom comments about religion. For example, the teacher stated that peasants had been persuaded to oppose reforms that were in their best interest because of religion. As the teacher opined, “You have to have something that is irrational to counter that rational approach. … [W]hen you put on your Jesus glasses, you can’t see the truth.” The teacher criticized evidence for belief that God cre-ated the universe as the invocation of magic rather than science: “I mean, all I’m saying is that, you know, the people who want to make the argument that God did it, there is as much evidence that God did it as there is that there is a giant spaghetti mon-ster living behind the moon who did it….” The Ninth Circuit rejected the student’s Establishment Clause challenge to the teacher’s remarks finding the teacher had qualified immu-nity because the law was not clearly established. Usually eager to go where no other court has previously gone (see the Alpha Delta Chi case), the Ninth Circuit modestly concluded that “there has never been any reported case holding that a teacher violated the Establishment Clause by making state-ments in the classroom that were allegedly hostile to religion.” Somewhat self-contradictory, the court nonetheless offered its belief that “[e]ven state-ments exhibiting some hostility to religion do not violate the Establishment Clause” if the teacher’s conduct has a secular purpose, does not have the principal effect of inhibiting religion, and does not create excessive entanglement between government and religion. The court reluctantly conceded that “[a]t some point a teacher’s comments on religion might cross the line and rise to the level of uncon-stitutional hostility.” One wonders what level of hostility would be needed for the Ninth Circuit to find a teacher’s gratuitous anti-religious comments unconstitutional. Despite the loss, the student’s challenge, which has received some public atten-

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1 Judge Ripple concurred in the panel’s result because he believed that a prior Ninth Circuit opinion required the panel’s ruling. In reality, the panel’s claim that there was controlling intra-circuit authority was erroneous. Regardless of that error, Judge Ripple’s opinion is a lucid and succinct explanation of why nondiscrimination policies should not be interpreted to justify excluding religious groups from campus.

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Where is the beauty in my professional life?” seems a precious and inau-thentic question. We are skeptical of

beauty, as it is often a tool for marketers and huck-sters to divert attention from a lack of substance and taste. And we are aware that beauty is indifferent to morality. So beauty might seem an offbeat topic for discussion among legal theorists and practitioners. This should concern Christians. One of the most distinctively Christian claims is that there is beauty to Christ, and therefore whatever beauty means in this sense, it is a goal of Christian life. If we are cynical about this claim, then we are skeptical about the very core of Christian belief and practice. Therefore, Christians should carefully examine their attitudes toward beauty. Early Christian thinkers relate beauty to God through the concept of Being. For them, beauty was an attribute of God, who is the unity of all things. Earthly beauty is the participation in God’s perfect beauty, and it is distorted to the extent that it distracts from God. Pseudo-Dionysus’ Divine Names described beauty this way, and so did St. Augustine. Later, St. Thomas Aquinas reconfigured the neo-platonic orientation in Aristotelian terms, describing beauty as “wholeness, proportion and “light,” which are ontological features of all beings, finding perfection in God. These writings continue to influence theologians working from a variety of sectarian perspectives. In the twentieth century, theologians writing after the Second World War approached beauty anew. Karl Barth insisted that beauty is not reduc-ible to and cannot be exhausted by power. He rejected the idea that beauty was an instrument of deception, used by the powerful to oppress the weak. Barth stressed God’s use of beauty to con-vince and enlighten. Barth approached aesthetics by giving priority to the Gospel. Nicholas Wolterstorf has recently taken a similar position, arguing that “perceptual contemplation” must be subordinated to truth. He stresses that the emotional response to beauty in art can be transformative, but it must be carefully subordinated to Christ.

ABSTRACT

A Beauty that Beckons to UsBy Kevin Lee

Roman Catholic theologian Hans urs von Balthasar has also had a massive influence on theo-logians thinking and writing about beauty. He maintains that beauty holds an ontological signifi-cance—that is, “beauty” refers to some actual pres-ence and not merely a psychological state. Aesthetics is a way of speaking about the relationship between the creation and the Creator, which human beings have the faculty of perceiving. Later in the century, the postmodern think-ers, particularly Jean-François Lyotard, criticized modern thought for failing to appreciate the types of awareness that transcend “conceptualization.” While Lyotard was not Christian, his ideas have challenged theologians to find some ultimate or fundamental unity among the aesthetic, cognitive, and ethical that would not ultimately be revealed to be the will to dominate. This suspicion of truth and the good and the beautiful run strongly through our culture today as the presumptions of the postmod-ern have taken root. In response, John Milbank, the Anglican theologian, who is identified as the found-er of the Radical Orthodoxy movement, argues that postmodernity is simply a variant of the “ontology of violence,” describing causality in social relation-ships in terms of force and domination. In Christ, an alternative account of social causality is present. The will to dominant is subordinated to charity and this is ultimately more “real” than violence. While acknowledging this wide variety of Christian thinking about beauty and its relation to God, a few general points might be observed. For Christians, to speak of the beauty of Christ is to make reference to something more than a psychological state. An aesthetic judgment takes priority over what evokes it. There is a “giveness” to beauty that transcends language and description, as Immanuel Kant noted of what he called “the sublime.” In addition, beauty in the divine dimension crosses boundaries and will not be constrained by concepts. It cannot be reduced or entirely grasped by the mind. Beauty speaks with authority. It demands attention and a response to it.

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The Top and Bottom of the Ninth

Continued from page 6

tion, may have served as a useful wake-up call to many teachers to curb their classroom disdain for religion. Compare the Ninth Circuit’s handling of a teacher’s remarks that are critical of religion with its handling of a teacher’s pro-religious words in Johnson v. Poway Unified School District, 2011 WL 4071974 (9th Cir., Sept. 13, 2011). Twenty-five days after its Capistrano decision, the Ninth Circuit had no trouble finding that the law was “clear” that a school district does not violate a teacher’s first amendment rights “when it orders him not to use his public position as a pulpit from which to preach his own views on the role of God in our Nation’s history to the captive students in his mathematics classroom.” The Ninth Circuit then reversed the district court’s grant of summary judgment in favor of the teacher. Since 1982, a high school algebra and calculus teacher had displayed two large banners on his classroom walls. One banner was emblazoned in large letters with “In God we trust,” “One nation under God,” “God bless America,” and “God shed His grace on thee.” The other banner stated that: “All men are created equal, they are endowed by their CREATOR.” Despite the obvious origin of these phrases in our laws, patriotic songs, and the Declaration of Independence itself, the school principal ordered the banners removed because they “might make students who didn’t share that viewpoint uncomfortable.” While the teacher complied with the order to remove his banners, he noted that other teach-ers at other high schools in the district had signs that displayed a sectarian viewpoint. For example, one teacher displayed Tibetan prayer flags, one of which incorporated a small picture of Buddha, in her classroom; another exhibited a John Lennon poster with the lyrics to “Imagine”; another teacher

presented a poster that listed Mahatma Gandhi’s “7 Social Sins”; one poster pictured the Dalai Lama; and one teacher’s poster opined that “The hottest places in hell are reserved for those who in times of great moral crisis, maintain their neutrality.” The Ninth Circuit held that the school district had not violated the teacher’s First Amendment rights because the teacher’s speech in this context was actually the school’s speech, and therefore, could be restricted by school officials if they thought stu-dents might be offended. In a neat pivot, however, the Ninth Circuit then found that school officials did not violate the Establishment Clause by allow-ing the other posters with religious connotations to remain on display because nothing in the record suggested that those posters were used to endorse or inhibit religion despite their religious content. For example, the science teacher who displayed the Tibetan flags claimed such flags were like flags purchased by Mount Everest climbers and therefore were relevant to her classroom discussion of fos-sils found near Mount Everest. Unblinkingly, the Ninth Circuit accepted that “the flags are intended to stimulate scientific interest, not religious pressure (or even permissible religious discussion).” Quoting from the Declaration of Independence does not protect speech, but fossils near Mount Everest do. Perhaps if John Lennon had penned the Declaration, it would have been sufficiently politically correct to survive in the Ninth Circuit. Yet again, the Ninth Circuit leaves those who care about religious liberty speechless.

________Kim Colby has worked for the Center for Law and Religious Freedom since graduating from Harvard Law School in 1981. She has represented religious groups in numerous appellate cases, including two cases heard by the United States Supreme Court, as well as on dozens of amicus briefs in federal and state courts. She was involved in congressional passage of the Equal Access Act in 1984.


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ABSTRACT

Catholicism, Liberalism and Human Rights

By Zachary R. Calo

Human rights is the dominant moral cat-egory of modernity. As both a theoreti-cal concept and the basis of legal norms,

human rights shapes the way we think and talk about personhood, social justice, and political obli-gation. 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 cat-egory 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 of human rights. More specifically, the primary fault line concerns the role of religion and religious traditions as they relate to human rights. This tension has long been pregnant within the modern human rights movement, though it has received greater attention in recent years. Increased sociological awareness of the con-tinued relevance of religion, a questioning of the secular, and the engagement between Islam and the West, has generated new interest in the role of religion within political ideas and movements. This sensitivity, in turn, has opened space for exploring religious accounts of human rights, just as it has provoked an awareness of the ways in which there

is a secular tradition of human rights that rests on its own assumptions, methods, and anthropology. The plurality that resides within the liberal human rights tradition, particularly that located on the boundary of secularism and religion, is a necessary backdrop to engaging emerging debates about such significant topics as religious pluralism and religious law. It also must shape our reflections on founda-tional questions about the limits and possibilities of human rights law. This paper does not engage these broader con-tested issues but rather considers the background question of how religious traditions, in this case the social thought of the Catholic church, has engaged the idea of human rights and the liberal tradition more generally. In particular, this case study aims to illuminate the process by which Catholicism devel-oped a native human rights tradition and how, in turn, this tradition is distinguished from its regnant secular counterpart. While there is much within the Catholic tradition that is compatible with the secular liberal conception of human rights, the two traditions nevertheless stand at odds on matters of fundamental import. The Catholic church has therefore increasingly found itself trying to cooper-atively advance the cause of human rights while at the same time prophetically challenging the coher-ence and sustainability of the secular tradition. The church’s understanding of human rights more and more embodies a counter-narrative to the secular human rights tradition, as much as it represents a potential bedfellow. This tension between the Catholic and liberal human rights traditions will likely continue to expand, particularly given the growing divergence of opinion on religio-cultural issues. By considering the relationship between the Catholic and secular human rights traditions, this paper aims to texture and ultimately complicate our understanding of the idea and history of human rights, thereby bringing attention to the plural moral and political traditions that reside under the

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Catholicism, Liberalism and Human Rights

rubric of human rights. This is a story that can and should be retold from the perspective of other traditions, and it is a story that is now unfold-ing within strands of Islamic thought. The story outlined in this paper is thus one that is largely historical, and concerned with intellectual history at that, but equally one with profound implica-tions for thinking about how religious traditions, in both theory and practice, can relate to the broader human rights movement. Only by assessing the theological particularly of religious traditions can we begin to engage the idea of human rights in its prospective universality.

The article abstracted here is available in full at www.clsnet.org/journal/Fall2011/calo

________Zachary R. Calo is Associate Professor of Law at the Valparaiso University School of Law. He previously practiced banking and commercial law in Washington, DC. He holds a J.D. from the University of Virginia School of Law, a B.A. and M.A. in History from The Johns Hopkins University, a Ph.D. in U.S. Religious History from the University of Pennsylvania, and is a Ph.D. candidate in Religious Studies (Theological Ethics) at the University of Virginia. He has been a visiting fellow at the Brookings Institution, the Pew Forum on Religion and Public Life, and the Institute for Humane Studies. He serves on the Organizing Committee of the AALS Law and Religion Section and is a member of the Editorial Board of the European Journal of Law and Religion and the Journal of Christian Legal Thought. He has recently lectured on law and religion in South America, Europe and Asia, as well as throughout the United States, and his writings have appeared in such publications as the St. John’s Law Review, the Arizona State Law Journal, the Journal of Law and Religion, the Chicago-Kent Law Review, the Notre Dame Journal of Law, Ethics and Public Policy, and the Journal of Catholic Social Thought. He is currently at work on two books: Rev. John A. Ryan: American Catholic Liberal and The Legal Thought of Richard Hooker.

Finally, persons are beautiful. The dignity of the person is tied to our ability to see the true beauty of the person. This is an essential claim: the image of God (imago Dei) is experienced as beauty—as an unfathomable reality that exceeds comprehension. Modern thought that seeks to reduce the person to some definable essence does not escape the ontol-ogy of violence. Where then might one look for this sort of beauty in the day-to-day life of the lawyer? Perhaps not in a great crusade for justice, although there is certainly beauty in that. But these crusades are few and rare and not open to every area of law practice. For most lawyers and most of the time, the beauty of practice lies in the most ubiquitous and closest realities of our daily life. The most important events in our lives involve our perception of the beauty of others\ we encounter, and our ability to truly love and care about them. The beauty of the Cross calls on us to see that the detailed ordinariness of life is filled with promise and hope.

The article abstracted here is available in full at www.clsnet.org/journal/Fall2011/lee

________Kevin P. Lee is Professor of Law at the Norman Adrian Wiggins School of Law at Campbell University. Before joining the faculty at Campbell, Professor Lee was a member of the faculty at Ave Maria School of Law in Ann Arbor, Michigan. He began his legal career as a clerk for Judge Herbert J. Hutton, Jr., of the United States District Court for the Eastern District of Pennsylvania, and then worked for Braun Moriya Hoashi & Kubota in Tokyo, Japan. He has previously held teaching positions at New York Law School, the University of Chicago, and DePaul University. Professor Lee earned a Bachelor of Arts and Master of Arts with honors from Colgate University, a Master of Arts from the Divinity School of the University of Chicago, and a Juris Doctor with honors from New York Law School. He is completing his doc-toral dissertation and anticipates receiving a Doctorate in Ethics at the Divinity School of The University of Chicago in the near future. He is the author of several articles and book chapters on natural law and jurisprudence.

A Beauty that Beckons to Us


http://www.clsnet.org/journal/Fall2011/calo

http://www.clsnet.org/journal/Fall2011/lee


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19. To avoid useless knowledge; at the same time to be very sure that it is useless.

20. To avoid, at least during my novitiate, political disputations; religious polemics; all ephemeral causes of excitement; and all merely fashionable and light reading.

21. To dress fairly in the fashion, but never beyond my means, and studiously to shun foppery.

22. To avoid intimate association with young men of doubtful principles.

23. To pay cash for every thing, and rather to deny myself a present gratification than to be a debtor.

24. To regard as absurd and dangerous the opinion of some, that men of distinguished talents are never capable of much application.

25. To avoid all eccentricity; and to root out every idiosyncrasy.

26. To cultivate practical knowledge, and a business tact; but to be sure that I am well grounded in the theory.

27. To subdue my imagination, if too wild; to strengthen my judgment, if apt to be false, and to improve my memory, if naturally dull.

28. To rely mainly on my industry, however great may be my talents.

29. To take care of the unavoidable fragments of time, and to see that they are as few as possible.

30. To keep constantly in view the essential distinc-tion between reading and studying; two things often confounded; and, that as to elementary books, especially, the safest rule is multum legen-dum, non multa.

From David Hoffman, a CouRSe of LegaL Study (1846) (Wm S. Hein Reprint 1968).

I am resolved [Deo Juvente,]

1. To have a scheme of life.

2. To have a scheme of study.

3. To live temperately.

4. To rise early.

5. To apply myself to study.

6. To oppose indolence, and never to postpone to the morrow the duty of to-day.

7. To take exercise.

8. To adhere to my hours for sleep.

9. To be moderate in my amusements.

10. To note my daily deficiencies, and endeavour to correct them.

11. To avoid, rigidly, all studies on the Sabbath.

12. To preserve my health of body and mind, by a careful observance of all physical necessities and comforts.

13. To be moderate, but never mean, in my expenses.

14. To guard my mind from idle thoughts, and sensual images.

15. To reflect carefully, on the first of January in every year, on my past neglects, and to form all necessary resolutions.

16. To give due attention to my religious studies.

17. To give due attention to my classical studies.

18. To pay special attention to such necessary studies as I find myself particularly averse to.

A Student’s Resolutions

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The Journal of Christian Legal Thought is a publicaton of the Institute for Christian Legal Studies, a cooperative ministry of the Christian Legal Society and Regent University School of Law

Documents

Journal of Christian Legal Thought Fall 2011