10 comments

  1. Modestinus,

    I discovered your blog a year or two ago, and it has quickly become a staple of my internet-reading addiction. You have in the past written about legal theory and the ubiquity of economic liberalism in the American legal academy. So, I was wondering if you could grant me some advice.

    I’m currently a 1L marching through my first semester of classes, and I’ve been dismayed at the pervasiveness of Law and Economics thinking in my textbooks (the Hand formula, efficiency analysis, etc.). It is particularly troublesome in Torts, where economic analysis seems to make a mockery of restorative justice.

    What are some resources for discerning a Catholic approach to legal theory? Specifically, what are alternatives to L&E that a Catholic can espouse?

    More generally, how does a Catholic engage the legal system in a secular, liberal democracy? (OK, that’s probably too broad; I just want to know where to start looking.)

    1. Those are not easy questions, and indeed they are the same ones that I have wrestled with over the years myself.

      L&E is the dominant paradigm in the legal academy, though it has had less of an impact on contracts and torts than some of its espousers claim. Which torts text are you using? It sounds to me like it is more favorable toward the Posnerian theory that he first developed with “A Theory of Negligence” back in the early 1970s. Even though he later converted to the L&E movement, Richard Epstein’s early article, “A Theory of Strict Liability,” and his subsequent pieces which he developed in the 1970s on strict liability in torts is a good corrective to Posner’s excesses, though Epstein doesn’t seem to be as full-throated for strict liability these days as he used to be. At its core, Epstein is concerned about corrective justice, and I found his “you break it, you buy it” approach to torts far simpler and more manageable than the tradeoffs associated with Posner and other L&E tort writers.

      For a Catholic perspective, that’s not easy, mostly because so little has been written. I think it’s incumbent on all good Catholic lawyers to at least have a grasp of Aquinas’s Treatise on Law from the Summa, along with some basic familiarity with both the classic/Roman legal tradition and natural-law theory. No, none of those “things” are in vogue, but sometimes one has to inoculate themselves from nonsense.

      For a good example of someone who is engaged in legal academic writing from a definite Catholic perspective, look at the works of Brian McCall. You can find a good sample here:

      http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=663056

      Included in that list of papers is one which reflects on Quas Primas and the ongoing Law & Economics debate.

      Let me see if I can think about your questions a bit more. But that’s a start.

      1. You guys really need to emulate the tradition of scholarly religious jewish lawyers. There are enough Catholic lawyers floating around that you should be able to develop a useful school of Catholic legal though (that is, Catholic thought that usefully comments on the present legal world. Not “hurr durr, natural law”).

  2. Thanks for your initial thoughts. My Torts text is “Torts: Cases and Questions” by Farnsworth and Grady. While it gives some space to alternative approaches to L&E, such as a short treatment of Wright’s “Hand, Posner, and the Myth of the ‘Hand Formula'”, it seems clearly to favor the kind of cost-benefit analysis advocated by Posner.

    I will look into Epstein (hah, whenever my course load allows, of course). I actually just returned from asking my professor why strict liability didn’t apply more often in negligence cases. As she knows vastly more than I, her answers were mostly satisfying, but I still have doubts. Epstein should be clarifying, as I barely know what I’m talking about half the time.

    I’d love it if you’d share any additional thoughts, either in this thread (which I apologize for highjacking with an off-topic question) or via email. Also, I’d be quite glad for more posts on the law, as you work through your thoughts on a Catholic approach to legal practice and theory in the US.

  3. I beg your forgiveness if I repeat myself, but it seems to me the great issue in defending CST against economic liberals within the Church (and against Orthodox economic liberals by extension) lies in the erroneous assumption that these documents exist in a vacuum. “God said, ‘let Leo be'”, and so on.

    We must rescue the concept of CST from being a handful of twentieth century documents and Rerum Novarum, and point to the long tradition on which they rest. That CST is an expression of that tradition, rather than an invention of its own, is its strength (indeed, it is the strength of the magisterium as a whole). It is only by re-expressing the connexion between Papal teaching documents and the teachings of the Fathers that we stand a hope of encouraging obedience to them. And, frankly, St Basil’s sermon to the rich is rather more rhetorically effective – and inescapable – than the diplomat’s subclauses of modern Vaticanese. I hope you will permit me to make a quotation from it:

    “Naked did you not drop from the womb? Shall you not return again naked to the earth? Where have the things you now possess come from? If you say they just spontaneously appeared, then you are an atheist, not acknowledging the Creator, nor showing any gratitude towards the one who gave them. But if you say that they are from God, declare to us the reason why you received them. Is God unjust, who divided to us the things of this life unequally? … But, as for you, when you hoard all these things in the insatiable bosom of greed, do you suppose you do no wrong in cheating so many people? Who is a man of greed? Someone who does not rest content with what is sufficient. Who is a cheater? Someone who takes away what belongs to others. And are you not a man of greed? are you not a cheater? … The silver that you keep hidden in a safe place belongs to the one in need. Thus, however many are those whom you could have provided for, so many are those whom you wrong.”
    (Translation is from here: http://bekkos.wordpress.com/2009/10/08/st-basil-on-stealing-from-the-poor/ ; the full text is given in translation here: http://bekkos.wordpress.com/st-basils-sermon-to-the-rich/ )

    Incidentally, in reading the article by Storck you link to, I find the following sentence deeply troubling:
    “The rationale for this assertion is clear, for social doctrine concerns human behavior, and in this case primarily concerns the complex field of economic activity.

    “Human behaviour is oeconomic activity” seems to me to be a notion not only reductive, but ridiculous, if not dangerous and to be condemned in the harshest terms.

    1. I am not sure your construction of Storck’s words is entirely fair here. I think what he is saying is that the social doctrine of the Church is directed primarily at that significant and complex facet of human behavior which is economic activity — broadly understood. Given his depth of knowledge of CST, I am pretty confident that Storck knows that for the popes, “economic activity” is not just market-based exchanges, but also concerns household management.

      I would also add here — and this is no knock against Storck — that CST is more than just the “economic encyclicals,” though they are obviously important. I would argue that they have to be read in conjunction with documents such as Quas Primas, Notre Charge Apostolique, and Mediator Dei. In fact, since it is its 150th anniversary, folks really should go all the way back to the Syllabus Errorum.

  4. It’s probably worth noting that those Orthodox vested in classical liberalism are disproportionately American/western Europeans. The Arab Orthodox have a long tradition of socialist political stances. Post-Soviet Russians view things like free secondary education and healthcare as basic government services.

    You’ll only see Orthodox promoting things like classical liberalism if you look among ex-protestants still in love with the GOP, or among ROCOR attendees (official motto: “No, seriously, fuck the communists.”). The Greek-Americans have been demographically Democrats since the 60’s.

  5. This would be a good place to start:
    “Socialism is the realization in the social realm of the commandment of love…
    Orthodoxy cannot defend the capitalist system, for it is founded on the exploitation of labor.”
    – page 173, the Orthodox Church, by Sergius Bulgakov.

    1. Funny. I owned all of Bulgakov’s major theological works in English (the ones published by Eerdmans at least), but I never picked up what is probably his most widely read book. Now I am ashamed, mainly because this would have been a useful launching pad for a discussion I had about Bulgakov some time ago.

      It’s worth noting that Pahman has used Bulgakov in a rather disingenuous way to prop up some of his “Orthodox social thought” writings.

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