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Asking the Right Questions: Harnessing the Insights of Bernard Lonergan for the Rule of Law*

  • Patrick McKinley Brennan

Extract

“We cannot endow people with intelligence. Intelligence fundamentally is this capacity to ask questions, and this capacity is entirely from nature.”

My concern here is the rule of law, in all its operations. I select the unexpected word “operations” in order to telegraph a difference from much other natural law jurisprudence. The rule of law is not just a battery of operations; however, failure to appreciate the place of operations in the rule of law leads to a straw-man rule of law—and we know too well the fate of straw men. It is flesh-and-blood men and women whose operations bring about the rule of law, if a rule of law there is to be.

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*

The germ of this essay was the author's lecture as the inaugural holder of the Chair for the Culture of Law, Intercultural Forum for Studies in Faith and Culture, Pope John Paul II Cultural Center, Washington, D.C., 9 September 2004. The Terence J. Murphy Institute for Catholic Thought, Law, and Public Policy of the University of St. Thomas (Minnesota) co-sponsored the Chair's lecture series. I am grateful to Reverend Richard Schenk O.P., then-Director of the Intercultural Forum, for both his kind invitation to hold the Chair and his unfailing encouragement throughout my semester at the Center, to Most Reverend Donald Wuerl for his encouragement of the Chair, and to Reverend Monsignor William Kerr, Executive Director of the Cultural Center, for his warm hospitality. For helpful comments on the penultimate draft of this essay, I am pleased to thank Steven Smith and James Boyd White.

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1. Lonergan, Bernard, Lecture 7: The A Priori and Objectivity, in Collected Works of Bernard Lonergan, Volume 5: Understanding and Being 156, 164 (Morelli, Elizabeth A. & Morelli, Mark D. eds., 2d ed., U. Toronto Press 1990). The claim that this capacity is “entirely” from nature is subject to the qualification, as Lonergan's elaborated statement reveals, that nature already includes grace that transforms nature while eluding the eye of the naturalist. See Grace and Freedom: Operative Grace in the Thought of St. Thomas Aquinas, in Collected Works of Bernarad Lonergan (Crowe, Frederick E. & Doran, Robert M. eds., U. Toronto Press 2000). What Lonergan says of the child is as true of the adult the child might (or might not) become: “If a child never asks questions, you [and here Lonergan might have said “reality”] “cannot teach him. You class him as retarded or lower than retarded. There has to be something with which to start ….” Lonergan, Bernard, Lecture 1: Self-appropriation and Insight, in Collected Works of Bernard Lonergan, Volume 5: Understanding and Being 3, 56 (Morelli, Elizabeth A. & Morelli, Mark D. eds., 2d ed., U. Toronto Press 1990).

2. See Stone, Martin, Focusing the Law: What Legal Interpretation is Not, in Law and Interpretation: Essays in Legal Philosophy 31 (Marmor, Andrei ed., Clarendon Press 1995).

3. Schlag, Pierre, The Problem of the Subject, 69 Tex. L. Rev. 1627, 1638 (1991).

4. Vining, Joseph, From Newton 's Sleep 223 (Princeton U. Press 1995).

5. See Smith, Steven D., Law 's Quandary (Harv. U. Press 2004).

6. Brennan, Patrick McKinley, Realizing the Rule of Law in the Human Subject, 43 B.C.L. Rev. 227, 249 (2002).

7. Id. at 240.

8. Lonergan, Bernard J.F. S.J., Insight: A Study of Human Understanding 221 (Phil. Lib. Inc. 1970).

9. See e.g. Glendon, Mary Ann, A Nation Under Lawyers: How the Crisis in the Legal Profession Is Transforming American Society 291 n. 19 (Harv. U. Press 1994); Glendon, Mary Ann, Knowledge Makes a Noisy Entrance: The Struggle for Self-Appropriation in Law, in Lonergan Workshop Volume 10 119 (Lawrence, Fred ed., Scholars Press 1994) [hereinafter Glendon, Knowledge]; Granfield, David, The Inner Experience of Law: A Jurisprudence of Subjectivity (Cath. U. Am. Press 1988); Kohler, Thomas C., The Integrity of Unrestricted Desire: Community, Values, and the Problem of Personhood, in Autonomy and Order: A Communitarian Anthology 57 (Lehman, Edward W. ed., Rowman & Littlefield 2000); Rev.Araujo, Robert John S.J., Method in Interpretation: Practical Wisdom and the Search for Meaning in Public Legal Texts, 68 Miss. L.J. 225 (1998). Some of the author's own earlier efforts at this are Brennan, supra n. 6; Brennan, Patrick McKinley, Meaning's Edge, Love's Priority, 101 Mich. L. Rev. 2060 (2003) [hereinafter Brennan, Meaning's Edge]; Brennan, Patrick McKinley, Political Liberalism 's Tertium Quiddity: Neutral “Public Reason,” 43 Am. J. Juris. 239 (1998).

10. See Lonergan, supra n. 8, at 9.

11. George, Francis, Law and Culture in the United States, 48 Am. J. Juris. 131, 146 (2003).

12. Gary Lawson, with his suggestion that what “the law” is has to be proved just as much as what “the facts” are has to be proved, is an exception awaiting development. Lawson, Gary, Proving the Law, 86 Nw. U. L. Rev. 859 (1992).

13. S. Pacific Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting).

14. Lonergan, Bernard J.F. S.J., A Second Collection (Ryan, William F. S.J. & Tyrrell, Bernard J. S.J. eds., Westminster 1974) (paraphrase of Lonergan on p. 5 of unpaginated introduction by Tyrrell and Ryan).

15. White, James Boyd, The Edge of Meaning 101 (U. Chi. Press 2001). Some reservations about whether White in fact allows “the question” its full scope are raised at Brennan, Meaning 's Edge, supra n. 9, at 2078-2083.

16. Hart, H.L.A., The Concept of Law 139 (2d ed., Clarendon Press 1994).

17. Lonergan, supra n. 8, at xxviii.

18. Id. at 412.

19. Id. at xviii.

20. On transcendental argument, see the sources cited at Brennan, supra n. 6, at 275, n. 178.

21. Vining, supra n. 4, at 344.

22. Steven Smith reads Vining's work similarly. See Smith, supra n. 5, at 171.

23. Lonergan, supra n. 8, at 332.

24. Lonergan, Bernard, Philosophical Positions With Regard to Knowing, in Collected Works of Bernard Lonergan, Volume 6: Philosophical and Theological Papers 1958-1964, at 214, 224 (Croken, Robert C.et. al. eds., U. Toronto Press 1996).

25. Lonergan, supra n. 8, at 366.

26. Id. at 9.

27. Id. at 331.

28. Kohler, supra n. 9, at 62. 29.

29. The objectivity of human knowing … rests upon an unrestricted intention and an unconditioned result. Because the intention is unrestricted, it is not restricted to the immanent content of knowing, to Bewusstseinsinhalte; at least, we can ask whether there is anything beyond that, and the mere fact that the question can be asked reveals that the intention which the question manifests is not limited by any principle of immanence. But answers are to questions, so that if questions are transcendent, so also must be the meaning of corresponding answers. If I am asked whether mice and men really exist, I am not answering the question when I talk about images of mice and men, concepts of mice and men, or the words, mice and men; I answer the question only if I affirm or deny the real existence of mice and men …. The possibility of human knowing, then, is an unrestricted intention that intends the transcendent, and a process of self-transcendence that reaches it. The unrestricted intention directs the process to being; the attainment of the unconditioned reveals that at some point being has been reached. So, quite manifestly, a grasp of dynamic structure is essential to a grasp of the objectivity of our knowing. Without that dynamism one may speak of concepts of being, affirmations of being, even the idea of being; but unfailingly one overlooks the overarching intention of being which is neither concept nor affirmation nor idea …..

Collection, in Collected Works of Bernard Lonergan vol. 4, 213214 (Crowe, Frederick E. & Doran, Robert M. eds., U. Toronto Press 1988).

30. Lonergan continues:

“It is to be attained only by attaining authentic subjectivity to seek and employ some alternative prop or crutch invariably leads to some measure of reductionism. As Hans-Georg Gadamer has contended at length in his Wahrheit und Methode, there are no satisfactory methodical criteria that prescind from the criteria of truth. Lonergan, Bernard J.F., Method in Theology 292 (Seabury Press 1979).

31. Lonergan, supra n. 8, at 636.

32. Id.

33. Id. at 221.

34. The quoted expression is Lonergan's. See Flanagan, Joseph, Quest for Self-Knowledge: An Essay in Lonergan 's Philosophy 136137 (U. Toronto Press 1997).

35. David Burrell, C.S.C., Analogy and Philosophical Language 242 n. 33 (quoting Michael Novak) (Yale U. Press 1973).

36. Vining, supra n. 4, at 17.

37. Lonergan, supra n. 8, at 186.

38. Bernard Lonergan, supra n. 30, at 4.

39. Id. at 17. The place of tradition in law, as a potentially self-correcting body of progressive and cumulative insights into valuable human living, is developed from a Lonerganian angle in Glendon, Knowledge, supra n. 9, at 119.

40. Lonergan, supra n. 30, at 16.

41. Id. at 18.

42. Tracy, David, Plurality and Ambiguity: Hermeneutics, Religion, Hope 27 (U. Chi. Press 1987).

43. Id.

44. Id. at 18.

45. Lonergan, supra n. 8, at 332.

46. See Flanagan, supra n. 34, at 228-229.

47. See Brennan, supra n. 6, at 280-283.

48. See id. at 283-288, 299-305.

49. Lonergan, supra n. 30, at 37.

50. Id. at 39.

51. Lonergan's appropriation of what is going on when we know and choose value is far more subtle than this presentation can suggest. A fine study of the development of Lonergan's understanding of the root of ethics is Crowe, Frederick E. S.J., An Exploration of Lonergan 's New Notion of Value, in Appropriating the Lonergan Idea 51 (Vertin, Michael ed., Cath. U. Am. Press 1989).

52. If the point is not at least plausible to the reader, nothing further that could be said here is likely to change his or her mind. But what is said here can be a beginning of a change of mind. See infra Part IV.

53. See Lonergan, supra n. 30, at 48-50; Lonergan, supra n. 8, at 596-598.

54. Lonergan, supra n. 30, at 49.

55. Novak, Michael, Bernard Lonergan: A New Approach to Natural Law, 41 Proceedings Am. Cath. Phil. Assn. 246, 247248 (1967).

56. Örsy, Ladisias, Theology and Canon Law: New Horizons for Legislation and Interpretation 154 (Liturgical Press 1992).

57. Crotty, Kevin M., Law 's Interior: Legal and Literary Constructions of the Self 90 (Cornell U. Press 2001).

58. Vining, supra n. 4, at 128.

59. As Joseph Flanagan observes:

To live freely, therefore, is not to live in an arbitrary way, but to live in the critically judged, critically evaluated way that you ought to live. The paradox of freedom is that to live freely is to live in an obligatory way. But it is you who obliges yourself. Your own intelligence obliges you, as does your self-evaluating self; you command yourself to be and to behave in truly worthwhile ways. In other words, there arises a spontaneous desire to maintain a consistency between your knowing and your doing.

Flanagan, supra n. 34, at 201.

60. Hart, Henry M. Jr. & Sacks, Albert M., The Legal Process: Basic Problems in the Making and Application of Law (Tentative, Ed. 1958).

61. Kohler, supra n. 9.

62. Örsy, supra n. 56, at 45-46.

63. Vining, supra n. 4, at 246.

64. See White, James Boyd, Justice as Translation: An Essay in Cultural and Legal Criticism 96 (U. Chi. Press 1990).

65. Bator, Paul M., The Constitution as Architecture: Legislative and Administrative Courts Under Article III, 65 Ind. L.J. 233, 265 (1990).

66. See Brennan, Patrick McKinley, Law, Natural Law, and Human Intelligence: Living the Correlation, __Cath. U. L. Rev.__(forthcoming 2006) (identifying limits on the judge's responsibility to implement the natural law).

67. See Lonergan, Bernard J.F. S.J., Dialectic of Authority, in A Third Collection: Papers by Bernard J.F. Lonergan, S.J. 5, 11 (Crowe, Frederick E. S.J. ed., Paulist Press 1985).

68. Vining, Joseph, The Authoritative and the Authoritarian 218 (U. Chi. Press 1986).

69. Lonergan, Bernard, Time and Meaning, in Collected Works of Bernard Lonergan, Volume 6: Philosophical and Theological Papers 1958-1964, at 106 (Croken, Robert C.et al. eds., U. Toronto Press 1996).

70. Flanagan, supra n. 34, at 205-206.

71. Id. at 212.

72. Lonergan, supra n. 69, at 202-203.

73. Flanagan, supra n. 34, at 200.

74. Lonergan, Bernard J.F. S.J., First Lecture: Religious Experience, in A Third Collection: Papers By Bernard J. F. Lonergan, S.J. 115, 121 (Crowe, Frederick E. ed., Paulist Press 1985).

75. See Flanagan, supra n. 34, at 222-223.

76. Scalia, Antonin, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175 (1989). See Scalia, Antonin, Common-Law Courts in a Civil Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law 3, 25 (Gutmann, Amy ed., Princeton U. Press 1997) (“Of all the criticisms leveled against textualism, the most mindless is that it is ‘formalistic’ The answer to that is, of course it's formalistici The rule of law is about form.”) See also Brennan, supra n. 6, at 306-318.

77. For an example of how this works out in a particular and notorious case, see Brennan, supra n. 6, at 305-318.

78. See Merrill, Thomas W., Textualism and the Future of the Chevron Doctrine, 72 Wash. U. L.Q 351, 371372 (1994).

79. Vining, supra n. 4, at 76. See Brennan, supra n. 64 (arguing for the openness of legal discourse and system on the basis of the requirements of natural law and practical reason).

80. Tracy, supra n. 42, at 60.

81. Id. at 19.

82. Glendon, Mary Ann, Comment, in A Matter of Interpretation: Federal Courts and the Law 95, 113 (Gutmann, Amy ed., Princeton U. Press 1997).

83. Powell, H. Jefferson, A Community Built on Words: The Constitution in History and Politics 209 (U. Chi. Press 2002).

84. Vining, supra n. 4, at 240.

85. Id. at 76.

86. Brueggemann, Walter, The Endless Task of Interpretation, 53 Mercer L. Rev. 1019, 1026 (2002).

87. Vining, supra n. 4, at 75-76.

88. It bears repeating that this openness does not entail or even that everything is always up for grabs: People living by the question are methodical. See also Powell, supra n. 83, at 204-213 (summarizing the author's judgment of what is currently “settled” in American Constitutional theory and practice, including the modes of argument that are allowed and disallowed). Much in the “jurisprudence of subjectivity” as I have developed it consists with the position set out by Perry, Michael in Perry, Michael J., The Authority of Text, Tradition, and Reason: A Theory of Constitutional “Interpretation” 58 S. Cal. L. Rev. 551 (1985). However, Perry's position there does not recognize (the need for justification from) the transcultural norm that is the pure question.

89. Tracy, supra n. 42, at 11.

90. White, Michael J., Partisan or Neutral? The Futility of Public Political Theory 81 (Rowman & Littlefield 1997). See id. at 81-121.

91. de Lubac, Henri S.J., Augustinianism and Modem Theology 296 (Sheppard, Lancelot trans., Herder & Herder 1969).

92. “By the divine gift of somehow sharing in God's life {per gratiam}, [friendship with God] can have its real beginnings here and now {hie in praesenti}, for any of us.” Finnis, John, Aquinas: Moral, Political, and Legal Theory 331 (Oxford U. Press 1998).

93. See Brennan, Patrick McKinley, Jacques Maritain (1882-1973), in The Teachings of Modern Christianity: On Law, Politics, and Human Nature vol. 1, 75 (Witte, John Jr. & Alexander, Frank S. eds., Colum. U. Press 2006).

94. Lonergan, supra n. 8, at 191 -203, 218-242.

95. See Lonergan, supra n. 30, at 107, 130-131, 338.

96. Biblia Sacra iuxta Vulgatam Clementinam (Colunya, A. et Turrado, L. eds., Biblioteca De Auctores Cristianos Matriti MCMLXXXV Septima editio (author's translation)).

97. Lonergan, Bernard J.F. S.J., Christology Today: Methodological Reflections, in A Third Collection: Papers by Bernard J.F. Lonergan, S.J. 74, 77 (Crowe, Frederick E. S.J. ed., Paulist Press 1985).

* The germ of this essay was the author's lecture as the inaugural holder of the Chair for the Culture of Law, Intercultural Forum for Studies in Faith and Culture, Pope John Paul II Cultural Center, Washington, D.C., 9 September 2004. The Terence J. Murphy Institute for Catholic Thought, Law, and Public Policy of the University of St. Thomas (Minnesota) co-sponsored the Chair's lecture series. I am grateful to Reverend Richard Schenk O.P., then-Director of the Intercultural Forum, for both his kind invitation to hold the Chair and his unfailing encouragement throughout my semester at the Center, to Most Reverend Donald Wuerl for his encouragement of the Chair, and to Reverend Monsignor William Kerr, Executive Director of the Cultural Center, for his warm hospitality. For helpful comments on the penultimate draft of this essay, I am pleased to thank Steven Smith and James Boyd White.

John F. Scarpa Chair in Catholic Legal Studies and Professor of Law, Villanova University School of Law, Villanova, Pennsylvania.

Asking the Right Questions: Harnessing the Insights of Bernard Lonergan for the Rule of Law*

  • Patrick McKinley Brennan

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