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Monday, May 04, 2009

Social Justice Agonistes

In an earlier post, I blogged about the course that I taught this spring at Catholic University -- "Social Justice and the Law: Introduction to Catholic Social Thought" and some of the possibilities and challenges that it presented.  I want here to discuss how I approached the course, what worked, and what did not.

But before getting to that, I want to respond briefly to Professor Kmiec's kind and generous intervention in the comments to my earlier post.  I am grateful indeed that he has corrected the record about a few of the features of the course when he was Dean -- I ought to have checked with him on matters historical!

I also want to respond to the close of his comment, where he writes that I did not enjoy the "decanal enthusiasm and collegial effort" that the course mustered during his deanship. 

I do so with a little decanal enthusiasm of my own.  Dean Miles was enormously supportive of my ideas for the course in just the right way -- befitting exactly the new and somewhat experimental direction in which I thought to take the course.  Indeed, it is fair to say that I could not have done what I did with the course -- I could not have tried the direction that I tried -- without the gentle guidance and enthusiasm that she offered. 

I was also pleased to see Professor Kmiec mention by particular name Professor Pennington, Professor Wagner, and Fr. O'Brien.  Each of these wonderful colleagues offered resources and supports of all kinds, as did many others.  Each did so, as did the Dean, with abiding tolerance and wisdom -- recognizing that they were dealing with a headstrong novice who wanted to strike out on his own with the course a bit (nervous as he was about the results).  I could not have asked for more from these friends. 

Now to those results.

The fundamental problem for me was how to decide what substance to give the course.  Of course, there are centuries of rich history and thought from which to draw, but the crucial difficulty was to achieve a scaffolding or structure in which the course could be taught coherently within its one-credit limits.

I decided on the following general structural feature: I would embrace the conflict.  Faced with what I saw as the essential contestability of the idea of social justice, I would make the focus of the course precisely that contestability.  The course would be one in various ideas of social justice and their relationship with various legal inquiries, and their irreconcilable conflict would be my binding substantive theme -- my structuring principle.  Catholic intellectual views about social justice on a variety of subjects would be contrasted with opposing positions.

I drew some of the topics for the syllabus from a course taught by Professor Rick Garnett (who was gracious enough to share his scaffolding with me), and who (I recently discovered from Rick) in turn drew from a syllabus conceived by Professor Patrick Brennan (this was an appropriately non-novel approach to suit my pre-dispositions).  Topics included the idea of human dignity; the relationship of politics, religion, and morality; the practice of law and ideas of social justice; and family, society, and the state.

But I added two features to the course, one substantive and one procedural, to reflect the theme that I had chosen.  First, we spent two sessions on what I described as "meta-issues."  These dealt primarily with what it is that "social justice" means, and with what it might have to do with a legal education.  I included readings that probed -- sometimes in indirect ways -- the nature of legal education, and how it seemingly sits astraddle a number of different kinds of education -- university, liberal, vocational, practical, and so on.  Stanley Fish's latest effort ("Save the World on Your Own Time") made an appearance, as did an old essay by Michael Oakeshott entitled "The Study of 'Politics' in a University" -- whose skepticism about the study of the "science" of politics now seems dated but whose criticisms might well be applied to innovatory fields of academic inquiry such as "social justice."  The aim was to confront directly what a course like "Social Justice and the Law" was doing in a first year curriculum -- why have it at all?  Is it a topic that can be studied academically?  And what does it say about a school that it has such a course -- and is that something worth having?

The second feature was procedural.  For almost all of the subjects that we considered, I aimed to have widely divergent -- but ideally, directly opposing -- viewpoints represented in the readings.  So, for example, in the section on human dignity, I included readings by Professor Jean Bethke Elshtain (who writes as a Catholic, very much in favor of human dignity as a valuable ideal) and Professor Steven Pinker (vehemently against, as in his recent essay in The New Republic).  In one of the classes on reliance on religious reasons in political judgment, I included readings by Professors Robert George, Geoffrey Stone, and Kent Greenawalt -- very much a Catholic view, very much a non-Catholic view, and very much a carefully complex view.  I tried to balance intellectual probity with accessibility to the extent that I was able within the temporal confines of the course (difficult, given my ambitions for it -- more on that below).

The driving force was to cultivate a sense of the tensions and conflicts of social justice.  I wanted students to feel the pain and struggle -- my pain and struggle -- in the face of the confrontation with such an unbearably large set of subjects -- which are the self-same subjects about which the Catholic Church has agonized over the centuries.  Stuart Hampshire's little gem of a book, "Justice is Conflict" served as a kind of model for my approach -- for what I hoped my students would get out of the course and, in teaching them, for what I hoped for myself. 

The primary success of the course was that a not shameful number of the students actually seemed to enjoy it.  They appeared, as a general matter, stimulated. 

The primary failure: As Professor Vischer points out so artfully, this project was too ambitious given the time constraints.  The most common criticism that I received was that the time had already passed by the time that the lather had begun to foam up on any single idea.  While I hope this did not engender resentment, as Rob suggests it might, I am fearful that it may have.  On the other hand, I agree with Professor Kmiec's observation that the course served merely to introduce students to a set of inquiries and thoughts -- just a little taste.  If they enjoyed that amuse bouche, a full banquet and more is available to them.  If not, not.         

Posted by Marc DeGirolami on May 4, 2009 at 07:16 PM | Permalink

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And the just war tradition?

I would have thought that the Stoic contribution to natural law and the (minimialist) conception of natural law found later in, say, Grotius, is much more interesting and relevant than "natural law" in either Judaism or Islam. The "natural law" conception doesn't seem to me to be that prominent to date in Islam. for example, save for the notion of "fitrah," which has not been highly developed, although it certainly has potential for further elaboration with regard to Shari'ah. It seems especially noteworthy that we have a theistic tradition of natural law alongside a secular or humanist tradition of same and thus potential for much common ground for a "natural law" ethics. Several contemporary philosophers, like Allen Buchanan in his attempt to articulate a moral theory (foundations) of international law (the chief moral goals of which are justice and peace both among and within states), end up with something that is very close to natural law (for instance, he outlines the basic structure of a Natural Duty of Justice). However, when I broached this possibility in correspondence with him, he agreed, but said he hesitated to label his theory this way owing to its theistic (especially Catholic) connotations and associations. This common ground seems particularly important today in international (especially criminal) law with regard to the role of jus cogens norms.

Posted by: Patrick S. O'Donnell | May 5, 2009 2:28:07 AM

Gratitude for an Idea Well Nourished & A Brief Recollection of the Idea's Beginning

Marc's detailed recounting of his course coverage is perhaps one of the happiest moments a former dean could be given. His attention to detail and counterpoint is the embodiment of Catholic intellectual effort at its very best -- within the limited time permitted, of course. I am especially delighted to learn of the Dean's support for Marc's work -- which reassures me, as I mistook Marc's earlier post to suggest he felt somewhat at sea with the freedom of content and without other colleagues to compare materials. Yes, the course is but a small moment in the overall law school experience, but like all inspired small moments, longlasting, and inspiring of conversation, friendship, and further inquiry about the truth of the human person seeking to self-govern in a universe where in times of terror or great economic distress that does not always seem possible. And, of course, acquaintance with the Catholic intellectual tradition, even among students coming from Catholic college and secondary school, cannot always be assumed.

For what it may be worth; I was able to locate one of the original drafts of the course description from Fall 2000 I think as well as a "core" list of topics the "founders" thought useful. Makes one appreciative of a living Constitution -- oops, did I say that?

Description in Fall 2000:

An introduction to the study of law within the framework of Catholic social teaching and legal philosophy. This first year course presents an introduction to Catholic social teaching and legal philosophy, especially as it relates to the juxtaposition of natural and positive law. Topics include: the interrelationship between law and morality; the concept of justice and the structure of government as an authoritative law giver. Throughout the course, encyclical and other Catholic writing is examined to consider subsidiarity, marriage and the family, issues pertaining to the preservation of life, the punishment for crime, the rectification of civil harm, the responsible ownership of property, the importance of work, personal obligations to the poor, matters of equality, the resolution of international dispute, and the limits of freedom. Finally, students are introduced to the life of St. Thomas More, the patron of lawyers.

List of core ideas (different reading assignments from different instructors assumed and encouraged with this list being thought of as a useful template or sketch only. Where a given encyclical is thought useful to reference or assign, it is listed.)

1. An introduction to Catholic Social Teaching: the Human Person as the end and purpose of the law and every social organization

Centesimus Annus (The Hundredth Year-New Things-One Hundred Years Later)

2. What is law? - Distinguishing Natural and Positive Law

3. What is morality? And its Relationship to Law.

Veritatis Splendor


4. Natural Law in non-Catholic traditions, with a special focus on Judaism and Islamic thought


5. Family & The Social Liberties (Herein of Subsidiarity)

Familiaris Consortio

6. Work & Economic Justice -- including the preferential option for the poor

Laborem Exercens


7. Constitutionalism- What is Justice?

8. A man for all seasons (St. Thomas More) The structure of Government

9. The relationship between church & state (Freedom of Religion)

Dignitatis Humanae

10. Property & the idea of private ownership and environmental responsibility; care and stewardship obligations

11. Communications - Freedom & the limits of truth and the freedom to speak

Miranda Prorus

12. Racial Equality

12. Gender Equality

Muleris Dignitatum

14. Life - abortion/euthanasia/capital punishment/cloning

Evangelium Vitae (The Gospel of Life)

15. International Dispute -- Peace & The obligation to love one's enemy

Posted by: Douglas Kmiec | May 5, 2009 1:23:52 AM

Patrick, not the writings of Day & Maurin themselves, and there was far less on labor than I would have liked (there was far less on everything than I would have liked). But they did hear mention of the name Dorothy Day and liberation theology in an altogether too short section on the economic order. And I also commended to them and had on reserve what I think is an excellent introductory piece on Day by Professor David Gregory, in an anthologgy edited by John Witte and Frank Alexander.

Posted by: Marc DeGirolami | May 4, 2009 10:34:36 PM

Did the Catholic Worker perspectives of Dorothy Day and Peter Maurin make an appearance? And liberation theology and praxis (of the Comunidades de Base)?

Posted by: Patrick S. O'Donnell | May 4, 2009 10:09:04 PM

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