In a post below I suggest that judges often do what theologians do when they arrive at legal judgments by applying principle to specific issues within a given set of precedents.
Ed Whelan at NRO offers this run down of Judge Sonia Sotomayor's judical philosophy, quoting her with his own emendations:
Sotomayor argues, “It is our responsibility”—the responsibility of lawyers and judges—“to explain to the public how an often unpredictable system of justice is one that serves a productive, civilized, but always evolving, society.” She identifies—and treats as equally legitimate—four “reasons for the law’s unpredictability”: (a) “laws are written generally and then applied to different factual situations”; (b) “many laws as written give rise to more than one interpretation”; (c) “a given judge (or judges) may develop a novel approach to a specific set of facts or legal framework that pushes the law in a new direction”; and (d) the purpose of a trial is not simply to search for the truth but to do so in a way that protects constitutional rights.
Let's make some changes and see how this might apply to theology:
The theologian argues, “It is our responsibility”—the responsibility of theologians—“to explain to the faithful how an often unpredictable system of thinking about revelation is one that serves a productive, civilized, but always evolving, Church.” The theologian identifies—and treats as equally legitimate—four “reasons for theology's unpredictability”: (a) “revelation is written generally and then applied by theologians to different factual situations”; (b) “many revelations as written give rise to more than one interpretation”; (c) “a given theologian may develop a novel approach to a specific set of facts or interpretative framework that pushes revelation in a new direction”; and (d) the purpose of theological thinking is not simply to search for the truth but to do so in a way that protects fundamental revelation.
This is not entirely wrong, I think. Judges use the Constitution as their "revelation." Theologians use scripture, creation, and the unique revelation of Christ as theirs. Judges produce "ways of thinking about the Constitution" that become binding on lower courts. Theologians have the magisterium. Judges have to apply not only the law but the higher court's reasoning to specific cases. Theologians do the same thing when they apply magisterial interpretation to both settled and novel facts in order to reach the right conclusions.
My only worry here--for both the law and for theology--is the notion of the "novel approach." We've seen the disastrous results of this play out in both the courts and the Church. However, Thomas' use of Aristotle was quite novel and very controversial when he started teaching at the University of Paris. His approach directly challenged and upset the long-settled neo-Platonism of the academy. In fact, his approach was roundly condemned by Church authorities and his academic colleagues. Of course, Thomas' approach never led him to deny any of the truths of revelation nor did he challenge the authority of the Church to teach the faith conclusively.
Perhaps the lesson here is that novel approaches to researching, developing, and teaching the truth of the Constitution/revelation are fine so long as they do not pretend to be the Constitution/revelation itself. There's a big difference between what is revealed and how it is understood. For theologians, revelation is closed. Our understanding of what has been revealed continues to develop because we are limited creatures grasping at divine truth. I'm not sure the same applies to the judges and the Constitution.
Ed Whelan at NRO offers this run down of Judge Sonia Sotomayor's judical philosophy, quoting her with his own emendations:
Sotomayor argues, “It is our responsibility”—the responsibility of lawyers and judges—“to explain to the public how an often unpredictable system of justice is one that serves a productive, civilized, but always evolving, society.” She identifies—and treats as equally legitimate—four “reasons for the law’s unpredictability”: (a) “laws are written generally and then applied to different factual situations”; (b) “many laws as written give rise to more than one interpretation”; (c) “a given judge (or judges) may develop a novel approach to a specific set of facts or legal framework that pushes the law in a new direction”; and (d) the purpose of a trial is not simply to search for the truth but to do so in a way that protects constitutional rights.
Let's make some changes and see how this might apply to theology:
The theologian argues, “It is our responsibility”—the responsibility of theologians—“to explain to the faithful how an often unpredictable system of thinking about revelation is one that serves a productive, civilized, but always evolving, Church.” The theologian identifies—and treats as equally legitimate—four “reasons for theology's unpredictability”: (a) “revelation is written generally and then applied by theologians to different factual situations”; (b) “many revelations as written give rise to more than one interpretation”; (c) “a given theologian may develop a novel approach to a specific set of facts or interpretative framework that pushes revelation in a new direction”; and (d) the purpose of theological thinking is not simply to search for the truth but to do so in a way that protects fundamental revelation.
This is not entirely wrong, I think. Judges use the Constitution as their "revelation." Theologians use scripture, creation, and the unique revelation of Christ as theirs. Judges produce "ways of thinking about the Constitution" that become binding on lower courts. Theologians have the magisterium. Judges have to apply not only the law but the higher court's reasoning to specific cases. Theologians do the same thing when they apply magisterial interpretation to both settled and novel facts in order to reach the right conclusions.
My only worry here--for both the law and for theology--is the notion of the "novel approach." We've seen the disastrous results of this play out in both the courts and the Church. However, Thomas' use of Aristotle was quite novel and very controversial when he started teaching at the University of Paris. His approach directly challenged and upset the long-settled neo-Platonism of the academy. In fact, his approach was roundly condemned by Church authorities and his academic colleagues. Of course, Thomas' approach never led him to deny any of the truths of revelation nor did he challenge the authority of the Church to teach the faith conclusively.
Perhaps the lesson here is that novel approaches to researching, developing, and teaching the truth of the Constitution/revelation are fine so long as they do not pretend to be the Constitution/revelation itself. There's a big difference between what is revealed and how it is understood. For theologians, revelation is closed. Our understanding of what has been revealed continues to develop because we are limited creatures grasping at divine truth. I'm not sure the same applies to the judges and the Constitution.
Father Philip --
ReplyDeleteI know this is your territory, but I am unconvinced that revelation is "written generally." Most often it is specific, even highly specific. Christ is not just unique but literally nonesuch. Systematic theology is the act of rational beings trying to distill universals from the very particular.
On my territory, I would suggest you are not seeing the crucial similarities and distinctions between constitutional law and the common law. The starting point of legal reasoning is usually a particular issue: a "case or controversy" in constitutional parlance. The Constitution supplies rules to the particular situation.
(Indeed, there is a guiding principle that statutes at variance from the common law are to be "strictly construed." This arose because English judges regarded the acts of Parliment as self-serving deviations from the traditional and proven norms.)
By contrast, the common law begins with the particular situation and aims to intuit rules from case-by-case experience.
The commonality does not lie in the origin of the rules (one is from parchment; the other from experience) but from the ubiquitous experience of conflict. Law "advances" as we line up one set of interests against others. The human capacity for conflict seems infinite, so the series of conflict is never ending. All legal rules -- be they constitutional or not -- are thus always under pressure. Jesus Christ may be the same yesterday, today, and tomorrow, but no (other) law can say that.
Please forgive if my remarks are a bit harsh. My ecclesial community is presently ruled by one who dismisses doctrine as "putting G-d in too small a box." Her remark puzzles me, as our faith has understood the Lord of all did not despise the small box of a zygote.
All the best.
Lou,
ReplyDeleteWhat I mean by "written generally" (too vague, I know) is two things: 1) written for everyone not just a specific group and 2) not written to cover every single possible human difficulty or problem. I don't mean to say that there are no specific revelations...I think Christ himself counts as pretty specific!
I'm not remotely qualified to challenge your understanding of how the law works. My comments in the post come from my limited experience reading court decisions...I'm a rank amateur, so I'll take your point. My guess, however, is there is a lawyer out there who will disagree with you...thus making my point that how the conflict gets framed is vital to how the law is applied to a case. :-)
My sympathies to you for having to suffer one of Brights of the Church who has decided that her god is freer from manipulation b/c she's removed him from The Box and put him on a leash.