Pat Smith

The Unwritten Law and the Order of the State

September 18, 2020September 19, 2020 Pat Smith

I have discussed elsewhere how St. Isidore of Seville’s Etymologies were hugely influential for later writers like Gratian and St. Thomas Aquinas. (The Etymologies were generally influential throughout the Middle Ages.) It is helpful, however, to see St. Isidore’s jurisprudence in action, especially when applied to a current problem. One of the preferred jurisprudential moves of liberalism is to reduce the order of the state to written law—written norms—and exclude from that order any unwritten law. St. Isidore (and, later, St. Thomas) demonstrate that such a move has no warrant in the classical legal tradition and, therefore, should be rejected outright. Indeed, the saints show clearly that the order of the state is far greater than whatever may be reduced to written law at any time.

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Recovering St. Isidore’s Etymologies in the Classical Legal Tradition

August 31, 2020August 31, 2020 Pat Smith

One of the most important sources in Christendom throughout the Middle Ages was St. Isidore of Seville’s Etymologies. A universal encyclopedia, the Etymologies was spread throughout Europe shortly after Isidore’s death and it remained an essential reference for scholars of all kinds thereafter. It has a special significance for the classical legal tradition, since writers like Gratian and St. Thomas Aquinas relied upon the Etymologies for their definitions of important legal concepts. Indeed, with an understanding of the Etymologies in mind, one can readily see how, for example, St. Thomas Aquinas developed the prevailing understanding of the natural law or insurrection. The Etymologies, therefore, is an essential component of the recovery of the classical legal tradition.

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Bostock and the tyranny of values

August 3, 2020August 4, 2020 Pat Smith

In a characteristically insightful essay, Vincent Clarke connects the textualism of Justice Neil Gorsuch’s majority opinion in Bostock v. Clayton County with the postmodern project of deconstruction, typified by the philosopher Jacques Derrida. Clarke observes that Derrida’s development of deconstruction was an attempt to make more effective Martin Heidegger’s attempt to demolish Western metaphysics. For Heidegger, metaphysics had to be destroyed to make room for a new approach to the experiences that became being. Derrida proposed a more effective mechanism for the same process. It is concerning, of course, from a theological and philosophical perspective to see postmodernism take hold in the Supreme Court. But there are other reasons for concern. Carl Schmitt’s 1959 lecture, The Tyranny of Values, argues that value philosophy runs to fill the void left by the destruction of metaphysics—with the gravest consequences for the state.

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DACA and Leadership

July 21, 2020July 21, 2020 Pat Smith

In Department of Homeland Security v. Regents of the University of California, 591 U.S. ____ (2020), Chief Justice John Roberts struck down the actions of the Department of Homeland Security revoking the prior administrative actions popularly known as “DACA” (“Deferred Action for Childhood Arrivals”). The DACA program, established in 2012 and expanded in 2014, allows individuals who came to the United States illegally as children to defer their deportation and, having done so, regularize their immigration status. The program came to include access to benefits. Shortly after President Trump took office in 2017, the Department of Homeland Security rescinded its DACA orders. The Supreme Court struck down these rescissions, not as exceeding the government’s power, but as failing to comply perfectly with the Administrative Procedure Act.

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The Ministerial Exception and the Church’s Jurisdiction

July 8, 2020July 9, 2020 Pat Smith

In Our Lady of Guadalupe School v. Morrissey-Berru, 591 U.S. ___ (2020), the Supreme Court, in a seven to two decision, expanded the so-called ministerial exception to employment laws. In a sense, the decision is a victory for Christians (and, indeed, believers of any stripe), especially in the wake of the expansion of Title VII in Bostock v. Clayton County. The flexible, totality-of-the-circumstances standard announced by the Court will undoubtedly provide ample protection to Catholic schools. But it is worth considering the distinction between the majority’s test and the approach advocated by Justice Clarence Thomas in his concurrence, especially if one rightly views “religious liberty” as the wrong way to think about these issues.

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Et sic utor pro me

July 3, 2020July 3, 2020 Pat Smith

In the ordinary gloss on a word in Gratian’s Decretum, D.10 c.1, one finds the phrase “Et sic utor pro me quo non utor contra me”—“And so I use for my sake what I do not use against myself.” Coming as it does in the context of Distinction 10, which is entirely about the relationship between imperial legislation and ecclesiastical law, the gloss seems to summarize the Church’s entirely pragmatic attitude toward civil law. Indeed, the pragmatism embodied by both D.10 c.1 and the gloss mentioned here seems almost modern, despite its great antiquity. Catholics today—especially Catholics considering primarily juridical questions, including the important question of the relationship between Church and state—may well find the Church’s historical pragmatism surprising.

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Don’t Let the Sunshine Fool You

June 29, 2020June 30, 2020 Pat Smith

Editor’s Note: This piece is part of the Ius & Iustitium series on the Supreme Court’s 5-4 decision in June Medical Services, L.L.C. v. Russo, striking down Louisiana’s abortion restrictions. The contributors to Ius & Iustitium will be offering short essays focusing on different aspects of the Court’s decision. A post collecting the essays will be published at the end of the series.

The 5-4 decision in June Medical Services, L.L.C. v. Russo is bound to satisfy no one. On one hand, the conservative Chief Justice John Roberts voted with the four liberal Justices to overturn Louisiana’s abortion restrictions. On the other hand, Roberts’s opinion, which as the narrowest concurrence is at least presumptively the controlling opinion, narrowly decides the case and represents in some respects a repudiation of the approach taken in Whole Woman’s Health v. Hellerstedt. On the whole, though, it is hard to see this as anything other than a major defeat for pro-life activists. The scope of the defeat, however, may not be fully apparent.

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Meditations on the emergency

June 24, 2020June 30, 2020 Pat Smith1 Comment

Today, it is common to discuss the state of emergency or the state of exception primarily with reference to the German jurist Carl Schmitt. One of his best known books, Political Theology (1922), begins with the pungent phrase, “Sovereign is he who decides on the exception.” But Schmitt is only one in a long line of jurists and philosophers—to say nothing of politicians—who have considered the problem of the emergency. Much of the fundamental work on the question was done, frankly, decades and centuries before Carl Schmitt. To discount the concept of the emergency or to attempt to conflate it with Schmitt’s problems (the most serious of which occurred for the most part after 1922) is, then, to depart from Catholic jurisprudence.

Consider the great discourse of Don Juan Donoso Cortés to the cortes on January 4, 1849. There one finds an important precursor to Schmitt’s Political Theology—a debt Schmitt frankly acknowledges at the end of his book. For Donoso, when society confronts mortal peril, if strict adherence to the law is sufficient to overcome the peril, then the law should be strictly adhered to. However, if such strict adherence to the law is not sufficient, then one must look beyond the letter of the law. This then is the emergency, articulated by a Catholic politician and political theorist beyond reproach.

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The tyrannical Lex Regia?

June 18, 2020June 30, 2020 Pat Smith

Fr. Thomas Crean and Prof. Alan Fimister have recently published their “manual,” Integralism (“C&F”). While the debates over integralism to date have centered on the subordination of the temporal power to the spiritual power, Crean and Fimister have an altogether more ambitious goal: they hope to present a coherent vision of Catholic politics, jurisprudence, and political economy. It would, however, be a mistake to think that they present a descriptive case. They have an agenda. There are numerous examples of this fact, but one of the clearest is their treatment of the civil law tradition compared to the common law tradition. A quick inspection of one aspect of their treatment, which takes up only a couple of paragraphs in their chapter on law, reveals not only their agenda but the manner in which they pursue it.

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