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.