Legal Commentary

In an earlier post, I blogged about the course that I taught this spring at Catholic University -- "Social Justice and the Law: Introduction to Catholic Social Thought" and some of the possibilities and challenges that it presented.  I want here to discuss how I approached the course, what worked, and what did not.

But before getting to that, I want to respond briefly to Professor Kmiec's kind and generous intervention in the comments to my earlier post.  I am grateful indeed that he has corrected the record about a few of the features of the course when he was Dean -- I ought to have checked with him on matters historical!

I also want to respond to the close of his comment, where he writes that I did not enjoy the "decanal enthusiasm and collegial effort" that the course mustered during his deanship. 

I do so with a little decanal enthusiasm of my own.  Dean Miles was enormously supportive of my ideas for the course in just the right way -- befitting exactly the new and somewhat experimental direction in which I thought to take the course.  Indeed, it is fair to say that I could not have done what I did with the course -- I could not have tried the direction that I tried -- without the gentle guidance and enthusiasm that she offered. 

I was also pleased to see Professor Kmiec mention by particular name Professor Pennington, Professor Wagner, and Fr. O'Brien.  Each of these wonderful colleagues offered resources and supports of all kinds, as did many others.  Each did so, as did the Dean, with abiding tolerance and wisdom -- recognizing that they were dealing with a headstrong novice who wanted to strike out on his own with the course a bit (nervous as he was about the results).  I could not have asked for more from these friends. 

Now to those results.

The fundamental problem for me was how to decide what substance to give the course.  Of course, there are centuries of rich history and thought from which to draw, but the crucial difficulty was to achieve a scaffolding or structure in which the course could be taught coherently within its one-credit limits.

I decided on the following general structural feature: I would embrace the conflict.  Faced with what I saw as the essential contestability of the idea of social justice, I would make the focus of the course precisely that contestability.  The course would be one in various ideas of social justice and their relationship with various legal inquiries, and their irreconcilable conflict would be my binding substantive theme -- my structuring principle.  Catholic intellectual views about social justice on a variety of subjects would be contrasted with opposing positions.

I drew some of the topics for the syllabus from a course taught by Professor Rick Garnett (who was gracious enough to share his scaffolding with me), and who (I recently discovered from Rick) in turn drew from a syllabus conceived by Professor Patrick Brennan (this was an appropriately non-novel approach to suit my pre-dispositions).  Topics included the idea of human dignity; the relationship of politics, religion, and morality; the practice of law and ideas of social justice; and family, society, and the state.

But I added two features to the course, one substantive and one procedural, to reflect the theme that I had chosen.  First, we spent two sessions on what I described as "meta-issues."  These dealt primarily with what it is that "social justice" means, and with what it might have to do with a legal education.  I included readings that probed -- sometimes in indirect ways -- the nature of legal education, and how it seemingly sits astraddle a number of different kinds of education -- university, liberal, vocational, practical, and so on.  Stanley Fish's latest effort ("Save the World on Your Own Time") made an appearance, as did an old essay by Michael Oakeshott entitled "The Study of 'Politics' in a University" -- whose skepticism about the study of the "science" of politics now seems dated but whose criticisms might well be applied to innovatory fields of academic inquiry such as "social justice."  The aim was to confront directly what a course like "Social Justice and the Law" was doing in a first year curriculum -- why have it at all?  Is it a topic that can be studied academically?  And what does it say about a school that it has such a course -- and is that something worth having?

The second feature was procedural.  For almost all of the subjects that we considered, I aimed to have widely divergent -- but ideally, directly opposing -- viewpoints represented in the readings.  So, for example, in the section on human dignity, I included readings by Professor Jean Bethke Elshtain (who writes as a Catholic, very much in favor of human dignity as a valuable ideal) and Professor Steven Pinker (vehemently against, as in his recent essay in The New Republic).  In one of the classes on reliance on religious reasons in political judgment, I included readings by Professors Robert George, Geoffrey Stone, and Kent Greenawalt -- very much a Catholic view, very much a non-Catholic view, and very much a carefully complex view.  I tried to balance intellectual probity with accessibility to the extent that I was able within the temporal confines of the course (difficult, given my ambitions for it -- more on that below).

The driving force was to cultivate a sense of the tensions and conflicts of social justice.  I wanted students to feel the pain and struggle -- my pain and struggle -- in the face of the confrontation with such an unbearably large set of subjects -- which are the self-same subjects about which the Catholic Church has agonized over the centuries.  Stuart Hampshire's little gem of a book, "Justice is Conflict" served as a kind of model for my approach -- for what I hoped my students would get out of the course and, in teaching them, for what I hoped for myself. 

The primary success of the course was that a not shameful number of the students actually seemed to enjoy it.  They appeared, as a general matter, stimulated. 

The primary failure: As Professor Vischer points out so artfully, this project was too ambitious given the time constraints.  The most common criticism that I received was that the time had already passed by the time that the lather had begun to foam up on any single idea.  While I hope this did not engender resentment, as Rob suggests it might, I am fearful that it may have.  On the other hand, I agree with Professor Kmiec's observation that the course served merely to introduce students to a set of inquiries and thoughts -- just a little taste.  If they enjoyed that amuse bouche, a full banquet and more is available to them.  If not, not.