MacIntyre, Strauss, and Some Voegelin

The latest podcast episode from The Josias provides an overview and discussion of Alasdair MacIntyre’s most famous work, After Virtue. Joel the Host, with his guest Pater Edmund Waldstein, are generally sympathetic toward MacIntyre while also pointing out his knack for broad (though compelling) generalizations and intellectual zingers. Joel the Host, at points, indicates that he has some reservations about After Virtue, though time constraints prevent him from exploring those. What’s clear, however, is that MacIntyre’s thought is important, or at least important for a certain brand of conservative Catholic intellectual who is unwilling to double-down on Thomism and disregard MacIntyre as either unnecessary or uninteresting. Part of this may be due to the fact that MacIntyre is now himself a Catholic, which means he is “safe” compared to two other towering critics of modernity, Leo Strauss (atheistic (?) Jew) and Eric Voegelin (unorthodox (?) Protestant). Voegelin, certainly more than Strauss, had the pleasure of running in Catholic intellectual circles back in his day, though unlike Strauss, Voegelin never had the luxury of developing a school of ardent disciples to spread his good news to the four corners of Anglophone academia. Strauss, for his part, never interfaced directly with Catholics, though he acquired a number of influential Catholic students, including Frs. Ernest Fortin and James Schall. Moreover, a number of Strauss’s students went on to teach at Catholic colleges and universities, including the University of Notre Dame. Even if it requires some effort to tease out a Straussian influence on contemporary conservative Catholic thinking, it certain exists and, perhaps, warrants closer inspection.

Joel the Host and Pater Edmund make mention of Strauss in their discussion of MacIntyre, highlighting the fact that MacIntyre is ultimately a historicist while Strauss is not. (I will leave to the side any discussion of Strauss’s “true teaching”; his anti-historicism, even if a ruse, remains influential to this day.) By “historicism” I mean the idea that all modes of thought, including moral philosophy, are historically contingent, thus transitory. Even great thinkers can never escape their age and it is all but impossible to adjudicate between the ethical claims of the ancient Greeks as compared to the ethical claims of the modern Taliban. According to Pater Edmund’s reading of MacIntyre, however, it is still possible to adjudicate the claims of different historical periods and/or cultural contexts, though it remains important to recall historical context at all times. Strauss and his students would likely reject this compromise, noting that while it is clear norms and conventions shift throughout time and locale, there is always a true understanding, a true teaching, to be grasped that transcends history and culture. Besides, in Strauss’s mind, historicism per se is self-defeating insofar as it claims all modes of thought are contingent yet professes to furnish a teaching on the nature of thought that is true at all times and under all circumstances. This is why, according to Strauss, radical historicists such as Martin Heidegger are so much more difficult to wrestle with: instead of professing a universal teaching available to all men at all times and in all places, they profess a revelation available only at an absolute moment. Before Heidegger, all men were confined to a certain darkness.

I contend that Strauss’s anti-historicism, regardless of the man’s “true beliefs,” is much more congenial to the Latin Catholic intellectual tradition than MacIntyre’s soft (compromised?) historicism. That is to say, Thomists of the Strict Observance and their intellectual forebears (including St. Thomas Aquinas himself) would be far more inclined to take up with Strauss’s adherence to the possibility of pure, universal knowledge than any notion which confines thought as attaining, at best, to an expression of “truth” that is and will always be contingent on time and place. Sure, St. Thomas thought there were gaps and errors in the works of Aristotle, but he sought to correct them in the light of either later philosophical insights, or the inerrancy of revelation. Aquinas did not reduce Aristotle to a man who was doomed by the truth of history to achieve nothing more than packaging certain Athenian intellectual prejudices into his philosophy. Aristotle, right or wrong, had something to say to all men at all times and in all places, and only after a thoroughgoing understanding of his thought would it be possible to judge whether or not he delivered truths beyond doubt unto the ages of ages.

None of this is to say that Catholics should bolt to the works of Strauss and cast aside their lightly-read copies of After Virtue. There remains good reasons for not accepting Strauss at face value, particularly his attempt  to burn away all trace of metaphysics from great thinkers whom Strauss determined were trying to evade prosecution by popular prejudices. Voegelin may have more to say to Catholics today than he’s given credit for, though his body of work is exceedingly difficult to penetrate and there is very little resembling a “definitive statement” in Voegelin’s many writings. He was a man caught in a constant quest to discover the order of history, and he detested the idea that his work should be ever calcified into a “doctrine.” Rather, Voegelin hoped that his efforts would light the intellectual flames of others who would build upon, revise, and ultimately overcome his work by drawing closer to the truth as more and more materials and discoveries from around the world informed the science of politics. With rare exception, this never really happened and probably never will.

And so MacIntyre, as I said, remains a safe option for a certain style of Catholic, though not a particularly interesting one.

Toward Glorious Times

If Sam Kriss can return to web-logging by ironically referring to himself as an “idiot” after being #MeToo’d out of social media for being a sexual predator, I believe I am entitled to leap back in the ring after five of some of the most hectic months of my life.

For the past month or so, I have been quietly observing—and occasionally participating in—an online group dedicated to those who were once a part of, but have since left (or at least distanced themselves from), the Eastern Orthodox Church. As I am sworn to secrecy regarding the membership of the group and the information shared, I cannot get into specifics. What I will say (and this should come as little surprise to anyone who has followed “things Orthodox”), there is much that is rotten “out East.” No, Orthodoxy (at least in the West) does not have the same highly concentrated, visible scandals as those which currently afflict the Catholic Church, but it is not difficult to find credible tales of spiritual, psychological, and even physical/sexual abuse in the Orthodox Church. The problem of “guruism,” a problem recognized by the late Fr. Alexander Schmemann, runs rampant in Ameri-doxy and far too many priests, unequipped with any formal training, believe they have the authority and ability to direct their flocks like serf-holding nobility. This problem is distinct from the “cult of personality” phenomenon too often seen in Catholic circles, particularly around the figure of the pope. Sure, Orthodoxy has its own personality cults, but those tend to be far less insidious than the cleric-as-oracle or monk-as-prophet phenomena which so easily set the stage for abuse in the Orthodox Church. Due to Orthodoxy’s powerful “last outpost” narrative whereby all other Christianities are marginalized to the point of being characterized as demonic delusions, many souls burned by the false promises of the Eastern Church find themselves turning not to Catholicism or some form of Protestantism after Orthodoxy, but rather to agnosticism if not full-blown atheism. A soul that falls away from Orthodoxy is not picked back up by another confession, but rather resigns itself to a disquieting nothingness that must, at a certain level, feel comforting compared to the overbearing spiritual manipulation that proceeds largely unnoticed behind parish doors.

Not that Catholics don’t have plenty to lament over themselves. However, given the mountain of commentary on the ongoing abuse crisis (most of it trash) that is already floating around in cyberspace, I see no pressing need to contribute to it.

As some of you may know, in my “free time” I do a bit of consumer protection work, specifically debt defense for consumer, medical, and student loan debt. Though sometimes inadequate to the task, there exists a number of federal and state laws intended to protect consumers from abusive and deceptive debt-collection practices. While some attorneys go into this line of work in the hopes of scoring a “big one” against a larger debt collector, perhaps in a class-action context, I have found a great deal of professional comfort in taking on collectors and their attorneys one case at a time. The harsh reality is that 98% of consumers being sued on an alleged debt never have representation and nearly 80% default, that is, fail to respond to the legal complaint issued against them. This sad situation encourages debt-collection firms to file thousands upon thousands of auto-generated lawsuits, many of which fail to meet state and/or federal legal standards. Instead of fighting, however, consumers are apt to just throw the lawsuits in the trash, defaulting, and then eventually coming to learn that their wages and/or tax returns are being garnished. While it is never too late to fight back, it’s much easier to stop collectors on the front end than look for remedies on the back end. If you or someone you know is staring down the barrel of a collection action and/or garnishment, please know that help is available. While I operate out of Michigan, you can find debt-defense attorneys all over the country through the National Association of Consumer Advocates.

And speaking of consumer defense, in the past people have challenged my adherence to Catholic social principles by saying that they are unrealistic and are only workable in the context of a Catholic confessional state—the sort which is unlikely to reappear on the timeline at any point in the foreseeable future. Maybe. However, it is important to understand that even in a suboptimal socio-political context, it is still possible for all persons, regardless of class or station, to effectuate Catholic social principles in their daily lives. As an attorney, I can think of no better way to do this than to come to the assistance of those being exploited by an immoral, usury-based economic ordo that often runs roughshod over the most vulnerable populations in society. No, the laws of the United States are not properly configured to uphold the full panoply of Catholic social principles, but there are avenues available under statutory and common law to defend individuals from unlawful and immoral practices. Seeking economic justice is a good in and of itself, even if there are costs and setbacks. Even lawyers otherwise disinclined from pursuing this line of work full time can still get involved through legal aid organizations or just answering the call of a needy potential client, regardless of their primary practice area. It is one way to put principles into practice, and I would encourage all attorneys to put some time and effort into it.

With all that said, I have no plan for what the next iteration of this blogging endeavor will look like. Given my full plate, I doubt I will be able to post as often as I did several years ago. If you are new to this web-log, I encourage you to scan through the archives to get a sense of what my writing is all about. (I apologize in advance for all of the broken links; I assure you that the internal content which they connect to is still available.) If you are a longtime reader, then please let others know I am “back at it.” What that means in practice…we’ll see.

The Ecclesiastical Politics of Inevitability and Eternity

In his latest book, The Road to Unfreedom, Timothy Snyder contrasts what he calls “the politics of inevitability” with “the politics of eternity.” In Snyder’s words, the former is “a sense that the future is just more of the present, that the laws of progress are known, that there are no alternatives, and therefore nothing really to be done.” This form of politics is acutely known in both the United States and Europe, albeit with different nuances and emphases. The politics of eternity, which in Snyder’s opinion lie at the heart of Vladmir Putin’s Russia, “places one nation at the center of a cyclical story of victimhood. Time is no longer a line into the future, but a circle that endlessly returns the same threats from the past.”

Transplanted to an ecclesiastical context, I wonder if it isn’t too much to say that the Catholic Church, with its internalization of liberal premises during the last century embraces the politics of inevitability while the Eastern Orthodox Church, a large segment of which is beholden to Putinism, labors under the politics of eternity. Eastern Orthodoxy’s narrative of victimhood, which is often applied as readily against Muslims as it is Catholics, has become one of its distinguishing features in the last century or so. The Orthodox, and the nations in which they hold denominational control, have no particular responsibility for native corruption, material scarcity, and social disorder; “the Latins” in 1204, “the Turks” in 1453, the “Uniates” in [insert every year here] have entered into a pan-national, trans-historical conspiracy to erode the integrity of God’s one Holy and Apostolic Church and those secular powers duty-bound to protect it.

As for the politics of inevitability, it has been commonplace—at least up until the reign of Pope Francis—for Catholics to turn a blind eye to the problems in the Church and society on the belief that they will work themselves out. Because Christ promised to St. Peter that he was the rock upon which the Church was to be built and “the gates of hell will not prevail,” everything from a decades-long sex scandal to a banalized liturgy to a collapse in sound catechesis are interpreted as mere bumps on the road to a Church just as accustomed to speaking human rights-jargon as it is preaching the Gospel. The Catholic Church, now tasked with being the world’s largest NGO, is present to cheer on and support the inevitable triumph of liberal democracy, freedom of conscience, economic flourishing, and so on and so forth. Just as sure as Christians once believed Christ will come again, the Catholic Church instills an intramundane eschatology among its faithful where the light of liberalism will finally illumine all.

Francis’s pontificate has not overshadowed the Catholic politics of inevitability, at least not wholly. While certain conservatives in the Church may be having buyer’s remorse over Francis’s election and are starting to wonder if the new ultramontanism that swept the Church during John Paul II’s reign was a good idea or not, by and large they believe that better is around the corner. The next pope, perhaps a prelate from “Holy Africa,” shall come to power and correct the errors and the Franciscan papacy. It’s not that Francis is a “bad pope” (for there can be no such thing!) or a “heretic” (what’s that?); it’s just that his “style,” his “charisma,” and his “lack of sophistication” concerning theology and doctrine have sown confusion—the sort that can still be disposed of quite easily and without any significant harm being inflicted to the Mystical Body of Christ.

The politics of eternity, the only politics the Eastern Orthodox seem willing to embrace on a mass scale, may keep their communion ostensibly safe from theological, spiritual, or intellectual trends that could upset their comfortable calcification, but at what cost to the Great Commission? With the exception of some minor incursions into the geographic west (Europe and America), the vast expanses of the world constitute a hostile “other” that threatens Orthodoxy’s wellbeing. For Orthodoxy, now is the time for its particular churches to rally together under the protectorate of a single, state-backed ecclesiastical juggernaut (namely the Russian Orthodox Church) rather than tolerate new assertions of autocephaly. The Ukrainian question, for instance, is about more than the historic rights of the Ukrainian Church; it is about the soul of Orthodoxy itself, including its willingness to accept being true to itself while no longer denying its position as both an heir of and contributor to what may still be called “Western Civilization.”

Should the Orthodox ever break free of their politics of eternity, it is doubtful they will immediately submit to the politics of inevitability. Orthodox history, which is inextricably bound up with the history of Mediterranean, Slavic, and Arab peoples, harbors a harsh realism deep in its bosom; nothing is truly inevitable except the Second Coming and nothing is more impossible than the return of Byzantium. Can Orthodoxy overcome this tension in its character if it ever gets past the politics of eternity? Yes, it can, and the likelihood of it doing so appears, at least at this moment, equal to the chances of Catholicism shifting away from inevitability to what one Cistercian monk called “the politics of nostalgia.”

Metternich on Freedom of the Press

We are certainly not alone in questioning if society can exist with the liberty of the press, a scourge unknown to the world before the latter half of the seventeenth century, and restrained until the end of the eighteenth, with scarcely any exceptions but England–a part of Europe separated from the continent by the sea, as well as by her language and by her peculiar manners.

– Klemens von Matternich, “Confession of Political Faith” (1820), in Memoirs (1881).

Freedom of the press and its annoying sibling, freedom of speech, are today perceived to be cornerstones of a healthy liberal society (if any liberal society can, in fact, be deemed healthy). The idea, which has taken on new vitality in the digital age where every man with Internet access allegedly has “a voice,” is that people have an inherent right to express themselves regardless of talent, training, or temperament. While most who made it out of middle school should know that the right to one’s opinion does not mean a right to having it respected or even not laughed at, there are still far too many adults who accept, on faith more than anything else, that the unhindered expression of thought conveys a vaguely understood good for humanity. Even those who do not accept such nonsense still maintain that while it is no loss that Ben the Baker is restrained from pontificating on politics or Ernie the Economist ought to keep his mouth shut on art, who decides who speaks, when, and under what conditions? Censorship may not be evil per se, but men are evil and will use the power to silence others for their own personal advantage. Better, then, to have a very low signal-to-noise ratio in print, on blogs, and on television than dare allow any authority, spiritual or temporal, to police speech.

The great Austrian diplomat Klemens von Matternich didn’t see it this way, of course. He lived at a time when there was still a glimmer of hope that the revolutionary forces of liberalism, secularism, and nationalism could be thwarted. By 1848, the battle was all but lost and Matternich saw himself going from Austria’s top statesman to a political exile. The Holy Alliance of Austria, Prussia, and Russia, one of the chief accomplishments of Matternich’s storied career, had some success in quelling rebellion throughout Continental Europe, though rampant distrust of Russian actions in Western Europe coupled with inconsistent policies toward nationalistic movements (e.g. Greek independence), soon fractured the various alliances against liberalism that Matternich and others constructed throughout the first half of the 19th century.

In the hopes of stomping out the flames of revolution before they could spread, Matternich advocated for tighter strictures on the press. He knew all too well the dangers of the printing press–dangers that first manifested themselves in the lead-up to the Reformation centuries earlier. Pay no mind to Protestant polemics. It was not the printing of the Bible that undermined the “superstitions” and “heresy” of Catholicism; it was the dissemination of false interpretations of Holy Scripture, including the pernicious and untenable belief in sola scriptura, that poisoned the Corpus Mysticum. By the 19th century, the publication of religious heresy was matched in volume by the printing of what Matternich saw as political heresy, namely the overthrow of the natural order of monarchs, religious institutions, and the imperial system as a whole. Believing, with perhaps more empirical evidence than we recognize today, that some peoples were meant to rule while others had to be ruled, the nationalistic fervor that spread across Europe during Matternich’s lifetime was an abomination, one that Matternich and the imperial powers of his time were ultimately unable to put down.

Today, the liberty of the press and freedom of speech are less the agents of macro-level political revolution and more the pretty playthings of capitalists and other liberal ideologues who seek to dismantle the last vestiges of decency in morality in the name of power and profit. Liberalism, secularism, and, in a modified sense, nationalism are no longer seen as revolutionary but normative. If there is still a revolution to be had, it is against the possibility of restoration, and that will only be successful if truth is diluted with such a frightening volume of error that there will be little hope ever distilling the former from the latter. Matternich, during his time on earth, likely could not comprehend such a catastrophe, for despite his own personal shortcomings, he no doubt believed that the Church and the intellectual fruits of Christendom would continue to witness for the truth, empowering those with eyes to see and ears to hear to halt and eventually overcome the revolution. But since when does the Church bother to speak the truth? What remains of Christendom but some chapters in history books?

The Exceptionalism of the Ukrainian Greek Catholic Church

Last week, in writing on Greek Catholicism, I made passing mention of the “exceptionalism” of the Ukrainian Greek Catholic Church (UGCC) (my ecclesiastical homeland). Misunderstood by a couple of individuals as an expression of chauvinism blind to the trials and hardships of the UGCC, I nearly felt compelled to defend myself before realizing that to certain Catholic ears, any thoughts that fail to heap praise on Latin, Scholasticism, and “the Mass of all time” will always be subject to needless, even thoughtless, scrutiny.

To recognize the exceptional status of the UGCC is not to exalt the Byzantine Rite over the Roman, to denigrate the subtle complexity (or complex subtlety) of Scholastic theology, or to privilege the icon over the statue. Rather, recognizing Ukrainian Catholicism’s peculiar vibrancy—and announcing that recognition—is to recognize that despite the great trial the Universal Church finds herself suffering, there is reason for hope. The UGCC spent a majority of the past century undergoing a living martyrdom at the hands of various ideological factions, including atheistic communism. Unlawfully suppressed in 1946 by the Russian Orthodox Church acting in concert with Soviet authorities, Greek Catholicism nearly died out in Ukraine, the spark of its flame being kept alive underground and in the diaspora. The liberation of its leader, Patriarch Iosif Slipyj, in the 1960s ensured the Ukrainian Church’s continuation, though it would take decades before the Vatican finally supported its sister church despite continuing calls by ecumenists to appease the Russian Orthodox.

Now, during the reign of Pope Francis, fears have resurfaced that the UGCC will again take a backseat to a new form of ecumenical outreach toward Russia—fears that, for the time being, have been overshadowed by ongoing Vatican capitulation to communist China. And yet still, the UGCC, under the rule of Patriarch Sviatoslav, presses ahead in a Ukraine beset by its own crisis and a larger Catholic world where Greco-Catholics have long endured a ghetto existence. In the Anglophone world, the UGCC recently released Christ Our Pascha, a comprehensive catechism that expresses the unchanging truths of the Church in a Byzantine-Slavic vernacular. Slowly but surely, new studies are emerging on the history of the UGCC and its unique patrimony which assist both in helping Greco-Catholics reclaim their heritage and Latin Catholics in appreciating the particularity within universality that is part of the genius of Catholicism.

What makes the UGCC exceptional, particularly at this moment, is that instead of looking to accommodate Church doctrine to the world, she seeks to reshape the world in line with doctrine. Recently, Patriarch Sviatoslav took to Ukrainain TV to promote the Church’s social teaching, including the teachings of Pope Leo XIII in Rerum Novarum. Knowing that Ukrainian society is in need of moral leadership, the UGCC is there to remind the citizenry that what they need above all else is God. Neither Western liberal nor secular nationalism will bring peace and prosperity to Ukraine, and the Church must never become the handmaid of the state—a lesson the Russian Orthodox Church, lacking as they do an authentic integralist tradition, has never internalized.

Adding to this exceptionalism is the Ukrainian Church’s internal push to restore its patrimony without sacrificing in full the mutual enrichment it has received from its Western orientation. Granted, this process has not always been as neat and clean as some have hoped. It is important to recall that the project of “de-Latinization” and restoration began under the watchful eye of Metropolitan Andrei Sheptytsky and even he knew that a “big bang” solution was neither feasible nor desirable. While the Latin Church has flirted with the ideas of restoring its own sense of the sacred through the re-introduction of the traditional Latin Mass and the abandonment of liturgical innovations, it has not, as of yet, been able to pull off this feat. If anything, traditional Latin Catholics are finding themselves forced to return to the bunkers in the hopes of weathering the current ecclesiastical storm introduced during the last five years.

None of this is to say that the UGCC doesn’t face genuine problems. The Ukrainian diaspora, particularly in the United States, is ageing and missing one, if not two, generations of adherents, lost to conversion, intermarriage, or apostasy. Moreover, Greco-Catholic orthodoxy has not always been able to withstand the machinations of neo-modernism and certainly the ethno-nationalist problem has yet to be resolved in full. Yet there is much in the UGCC that all Catholics, regardless of their particular church affiliations, can admire, if not emulate. Catholics of all stripes, who truly believe that the Church must breathe with both lungs, should pray for the growth of Greco-Catholicism, not just in Ukraine, but around the world. In turn, Greek Catholic Christians, fierce in upholding the universality of the Church, should petition Our Lord and His Blessed Mother for an end to the present crisis and the restoration of all things in Christ.

Lawyering Beyond Convention

Note: This post first appeared at the “Legal News” section of The Maul Law Group website. For more of my ongoing posts on law and related topics, please visit over there.

Giambattista Vico, writing in chapter two of his De Antiquissima, observed: “An esteemed jurist is, therefore, not someone who, with the help of good memory, masters positive law, but rather someone who, with sharp judgment, knows hw to look into cases and see the ultimate circumstances of facts that merit equitable consideration and exceptions from general rules.”

Most lawyers today, for better or worse, needn’t master positive law; they have numerous subscription databases at their fingertips for that. That hasn’t made them better jurists, at least not in the Viconian sense. Attorneys no less than judges are beholden to what the retired federal judge and scholar Richard Posner called “the law made me do it” conception. That is, lawyers will look at the positive law (statutes, cases, or both) and too often believe that a “right answer” emerges from it, even if that answer is not right for their clients. Judges, not wanting to reason through difficult problems dynamically, will look for an easy escape hatch, such as flat textualism or an over reliance on precedents (precedents which may have been formed in different contexts than case at issue).

Some will want to brush this concern to the side, arguing that law should be neither a dynamic nor an innovative profession, but a static and predictable one. Certainly, predictability is a virtue in any legal system. However, lawyers and layman alike place too great of a premium on it. The truth is that the application of many rules, even at the lower-court level, is always fraught with uncertainty due to the different temperaments, interests, and sophistication of judges. Even in Michigan, what flies in a judge’s court in one county crashes and burns in another. Lawyers who recognize this and adjust tactics accordingly tend to be more successful across the board, but many in and out of the legal profession are, understandably, left with a sense that this degree of variance is a legitimate problem that ought to be rectified.

Maybe, but how likely is that to happen? Michigan, like many states in the Union, has an elected judiciary and most voters have neither the time nor the inclination to research judicial candidates thoroughly. An appointed judiciary wouldn’t necessarily solve the predictability problem either as those appointments will be made by an official or officials with varying policy preferences and judicial goals. (For more on this problem, see my 2014 article in Bridge magazine.)

Circling back to lawyers in particular, how should they reasonably face a situation where the law does not appear to be “on the side” of their clients? Appellate attorneys are naturally better situated than those who tough it out at the trial level to get the law shifted in their clients’ direction, but that doesn’t mean trial-court lawyers have to accept the constraints of “the law made me do it” approach to both lawyering and judging. Numerous Michigan statutes are open-ended, vague, and poorly worded, and binding interpretations on what they mean are few and far between. Lawyers, in concert with judges, may love to say they “start with the text,” but that’s not entirely true; they likely start with what they want and look to see if the text confirms or denies it. Or, more dismally, some do start (and end) with the text, thinking—wrongly—that their personal take on the words and that take alone should guide them toward an outcome than may be suboptimal for their clients.

Perhaps it’s too much to hope that attorneys are all that interested in these and related matters. It stands to reason than most people go to law school and pass the bar not to wrestle with the “meta” problems of law and representation, but to make a (hopefully good) living. Fine. But professional pursuits need not come at the sense of introspection. When it comes to how best to service clients, thinking about law in a three-dimensional manner, including the way in which we believe the legal system ought to function, can pass on considerable benefits to those attorneys are charged to represent (and represent zealously).

Writings on Law

As many of you have surely notice, my writing on here has been sporadic over the past few months. In addition to my full-time job, I also handle legal cases on the side for The Maul Law Group, located in West Michigan. As part of my service to the firm, I am starting to contribute writings on legal topics that I come across during my practice. I have, from time to time, written on legal topics here, though that will be changing going forward.

If you are so inclined, please click over to the Maul Law “Legal News” section and don’t hesitate to share your thoughts, especially if you are in the legal profession. Remember: sharing and clicking material from Maul Law helps raise the firm’s search profile which in turn helps us attract new business.

For those of you who have been reading me for years, hopefully you agree that the time has come in my life to purchase a yacht. Your help is appreciated

Saturday Scribbling on Greek Catholicism

Because I am not particularly interesting, I avoid blogging about myself these days. I save all of my autobiographical reflections (a.k.a. things I overhear in West Michigan Christian coffee shops) for Twitter. As most of my blog readers know by now, I am Greco-Catholic and have spent the bulk of my religious life, from childhood to my late 37th year, in and around Eastern Christianity. The biggest “break” I took from this reality was roughly between 2011-13 when I found myself attending the traditional Latin Mass on a regular basis. My tiny parish, St. Michael Ukrainian Catholic Church, in Grand Rapids, MI has undergone serious trials in the last couple of years, not the least of which being the loss of its pastor due to serious health complications. With only visiting priests available, typically on Saturday evenings, it has been a challenge to get my family there and to keep them focused when all they want to do is wind down for the night. That’s on me. What is also on me is a lack of serious participation in the life of my parish and really local Catholic life as a whole. To say that life is “contradictory” and “confused” would be a bit of an understatement, though perhaps it is like that all over. With few exceptions, West Michigan Catholicism, when it is ostensibly “conservative” or even “traditional,” is largely reflective of peculiarly American religiosity. Think of John Paul II/Benedict XVI-style theological sensibilities blended with neoliberal economics, Calvinist iconoclasm, and a frightening dose of “Prosperity Gospel” thinking. Liberal West Michigan Catholicism, as far as I can tell, looks like liberal Catholicism plain and simple; there’s nothing terrifyingly special about it.

As I have written about before, the experience of being Greek Catholic, especially in my younger years, has never been easy. Not “Catholic enough” for Latins and “traitors” to the Orthodox, there’s an ever-present temptation to pick a side and cease being altogether. American Orthodoxy may be splintered and insular, but if feels like a more sensible home from time to time. The Roman Catholic Church, by virtue of its size, is a wonderful place to hide out; there’s no beating it for the ease in which one can find a parish, a Mass, a quiet “way of life” and be perfectly anonymous. The great exception to that route is traditional Latin Catholicism which, despite its expansion over the last decade, remains on the peripheries of the Church in most parts of the world (and most dioceses in the United States). It’s unfortunate, then, that traditional Latin Catholics typically don’t get along with their Eastern brethren for a variety of chauvinistic reasons. There is a part of me that really believes both sides have a lot more in common than they think.

I was to give a talk in Phoenix the other week at the local chapel of the Society of Saint Pius X entitled, “Eastern Catholicism: A Mansion with Many Rooms.” Hopefully I will be deliver that talk someday, either out west or closer to home. I had wished, given my audience, that I could find some ways to bridge the gap in understanding between the Eastern Catholic world and traditional Latin Catholicism, highlighting where the two convergence spiritually and liturgically, while not suppressing the legitimate diversity present among the various Catholic traditions out there. My secondary goal was to disentangle the meaning of Eastern Catholicism by laying out in as simple terms as I am capable of the array of particular churches, rites, and traditions that make up the Eastern Catholic fold. Too often it is assumed that Eastern Catholicism is a monolithic entity or that even Eastern churches sharing the same rite, like the Ukrainians and the Melkites, don’t have legitimate differences which reflect the historic flowering of Christianity throughout the Eastern world.

Though it has not been posted yet, an English-language news story is coming summarizing a recent interview given by the Ukrainian Catholic Patriarch Sviatoslav on Christian social ethics, particularly Leo XIII’s teaching on just wages from Rerum Novarum. It is a testament to what I believe is the exceptional status of the Ukrainian Greek Catholic Church (UGCC) that it has been able to both reintroduce its Byzantine patrimony and hold fast to right-oriented contributions of Latin theology and doctrine through the saintly leadership of Andrei Sheptytsky and Iosif Slipyj up to the present day. I say this not to put the UGCC on a pedestal or deny that as a church it faces its own struggles and contradictions, but to call attention to its ongoing commitment to authentic catholicity after decades of intense persecution. I pray there is something all Catholics can learn from that.

Criminal Law on a Tuesday

In a working paper available via SSRN, Bernard Harcourt, a professor of law at Columbia, presents three essays on criminal justice, including a provocative piece comparing the sentencing of Daryl Hamm to death in Alabama to the “show trial” grand jury hearings of Darren Wilson, the police officer responsible for shooting Michael Brown. Harcourt argues that these “verdicts” are illusionary; they fail to get to the truth and instead use the legal process to mask raw political decisions. Even the venerable New York Times was duped, declaring the Grand Jury decision to not deliver a bill of an indictment a “verdict” when, in fact, no trial had taken place, no witnesses were called through the adversarial process, and no neutral trier of fact was present. Yet today many Americans believe that Wilson was “acquitted” of any wrongdoing because the legal process, as orchestrated by a politically driven prosecution team, says so.

David Bentley Hart once provocatively declared that all human law is a fiction, and he’s right. Even the laws that we have, the ones we can look up on Lexis and Westlaw, are little more than an expression of particular ideological interests with only scant interest in aligning with any higher notion of justice, natural or divine. Even if one wishes to ground law in something a bit less “exalted,” such as history or tradition, consider for instance how rickety the “Anglo-American legal tradition” has become. Michigan, for example, has an ever-growing list of so-called strict liability offenses whereby no intent is required, which flies in the face of an aspect of Anglo-American criminal law that has been present since at least the days of Judge Blackstone. Scant attention is paid to this, as this reality both benefits prosecutors and only impacts the “criminal elements” of society.

Tell a layman this and should gasp. And the only reason lawyers would go unfazed is because most don’t care. As noted, prosecutors adore strict liability offenses; it makes their job easier. Defense attorneys, at a certain level, may not be a big fan of them, though the more strict liability offenses there are, the greater chance someone will be ensnared by one and need legal assistance. (Never mind, of course, that assistance comes with one hand tied behind its back.) The public at large, constantly made fearful of crime around every corner, don’t have a powerful incentive to seek reform to the criminal code to ensure that strict liability offenses are minimized, or disposed of altogether. Many states, in order to rectify this problem, have passed statutes imputing general intent on all crimes, though Michigan is not one of them. Sure, the Michigan Supreme Court has said that strict liability offenses are “generally disfavored,” but that has not stopped the legislature from passing more or the courts from enforcing them.

Returning to Harcourt, there is more going on in criminal law than just the use of procedure to mask politics broadly. There are specific political economic interests at stake. Municipalities depend on criminal sanctions to fill their coffers and meaningful reforms which would reduce dangerous behavior are rarely taken. For instance, consider criminal sanctions for driving while intoxicated. All automobiles could, in theory, be equipped with so-called blow-and-go equipment that would make a driver pass a sobriety reading before activating the car. Although some would find a way to evade these measures, the vast majority of those inclined to “risk it” and drive intoxicated would be prevented from getting on the roads. Similarly, measures restricting the late-night sale of alcohol and the operation time of bars would also substantially reduce the risk of drunk driving, and yet they are not taken. Why? Because drunk driving offenses bring in revenue, both to the local municipality, but the state, along with the legal profession as a whole. Moreover, restrictions on alcohol and alcohol sales are said to have adverse economic consequences for stores and bars; never mind that what they are peddling contributes to people making poor decisions with deadly consequences.

Could the system be otherwise? Certainly, but not likely. In other forums, Harcourt has called for greater civic engagement as a means to both exposing power structures and generating meaningful reforms in accordance with justice (albeit an ill-defined sort of justice). But those who are most likely to wind up on the wrong side of criminal law are those least likely to head to the polls, sign petitions, engage in protests, or use print and online media to make their positions known. It would be nice to hope that those in power or “those in the know” will, out of the goodness of their hearts, take steps to ameliorate the plight of under-represented persons who are routinely subject to the inequities of the criminal justice system, but hope is only meaningful when placed in its proper context, which is always theological. At the practical level, hope means very little; a willingness to act is crucial. But from whence does that willingness come? Who is answering that question?

About Last Night

Many sophisticated arguments have been made for and against the application of the death penalty, most consequentialist and some deontological. In Catholic circles, debate over the death penalty recently heated up after Pope Francis condemned the practice outright. That pronouncement, like so many pronouncements of this Pontiff, appeared to conflict with the Church’s prior teaching on the matter, which recognizes the permissibility of the death penalty while allowing that there may be prudent reasons for civil authorities to refrain from using it. In the United States, the death penalty is legal in 31 states, though four currently have a moratorium on the practice. This term, the Supreme Court of the United States will hear arguments about why the death penalty should be abolished under the Punishments Clause of the Eighth Amendment. That clause, rightly or wrongly, has come to be interpreted in line with our “evolving standards of decency,” an elastic measuring stick that I, as a tender (and naïve) youth of 27, criticized in my first foray into legal scholarship as historicist.

Last night, the state of Alabama attempted to put to death Doyle Lee Hamm for the murder of a motel clerk in 1987. Hamm, who has cancer, is at risk for his execution by lethal injection to go awry because of the damage to his veins. In short, there is a high risk that Hamm’s veins will rupture during the execution procedure, sending lethal chemicals into his flesh and leading to a protracted, torturous death.

Despite numerous petitions on his behalf, the 11th Circuit Court of Appeals determined, based on affidavits submitted by Alabama, that the execution could still proceed so long as certain procedures were in place, including using veins in Hamm’s lower extremities rather than his arms. In a last ditch effort to save Hamm from a potentially excruciating execution, his attorney, Columbia law professor Bernard Harcourt, appealed to the Supreme Court to review the 11th Circuit’s ruling. After granting a brief stay, the Court voted 6-3 to deny cert, thus paving the way for Alabama to carry out the execution. For 2 1/2 hours, Alabama officials attempted to find veins on Hamm capable of receiving the lethal injection; they could not. And so, less than half-an-hour before the death warrant was set to expire, the execution was called off.

What went on during those 2 1/2 hours remains a mystery. Only Hamm and those officials and correctional officers present know for sure. Hamm’s attorneys, family, and the media were not present, which is why an emergency motion was filed and granted today in federal district court. According to the order, Hamm is supposed to receive a full medical evaluation tomorrow with an official hearing on Monday which, inter alia, will allow those present, including Hamm, to give an official accounting of last night’s events. The district court has also ordered that no evidence from the aborted execution is to be disposed of, including Hamm’s clothing. What the examination, hearing, and physical evidence will reveal is anyone’s guess, though there is a high likelihood that Hamm was stuck repeatedly with a needle for more than two hours before the debacle was called off.

Distressingly, Hamm’s case received scant mainstream media attention until the execution was almost underway. The Washington Post started covering the matter late last night, noting that the Supreme Court had rescinded its stay and highlighting the risks involved with executing a cancer-stricken man. Aside from a handful of Catholic commentators and outlets that stand firmly against the death penalty in all circumstances, those “enlightened young Catholics” who routinely stock up their moral capital by chasing after causes they think will win them credibility among mainstream Leftists were silent. Why? Perhaps because Hamm, a man who far too many in America would deride as “poor white trash,” wasn’t “hip” enough to care about. Similarly, the most unsettling aspect of Hamm’s case, namely the years of legal malfeasance that have kept him on death row, isn’t “shocking” or “immediate” enough to generate Facebook “Likes” and re-Tweets. Or maybe, just maybe, the routine injustices attendant to America’s penal culture is an acceptable byproduct of a larger system of policing and surveillance meant to secure the essential promise of liberalism, the essential promise that so many “illiberal Catholics” refuse to let go of, namely an unserious life of entertainment, etc.