Sunday, November 22, 2009

Shark in the Cities

Over the weekend, the the Murphy Institute for Catholic Thought, Law and Public Policy at the University of St. Thomas Law School in Minneapolis hosted a conference entitled "Realism in Christian Public Theology: Catholic and Protestant Perspectives." It was an interdisciplinary conference bringing together law professors, theologians, ethicists and political scientists. I spoke on Friday, presenting a paper entitled "Christian Realism, Subsidiarity and the Economic Crisis."

The point of the paper is that the economic crisis - or really any crisis - presents a danger for the makers of law and policy. They may overreact both in terms of "fighting the last war," i.e., overemphasizing whatever is thought to be the present danger, or in seeing the crisis as an opportunity to remake society, i.e., to usher in a Kingdom on earth.

My argument is that there are two important theological concepts that can at least help us avoid this. The first is the Catholic notion of subsidiarity. i.e., the idea that a higer order should not do what a lower one can do for itself. I qualify that idea by arguing that subsidiarity is not simply a principle of jurisdiction but a recognition of the moral importance of human agency. Law and policy should help people and the associations that they form exercise freedom and creativity. It is, I argue, intertwined with the notion of solidarity, i.e., the imperative of concern for all persons.

This can have implications for both "liberal" and "conservative" positions. If we are to have George W. Bush's Ownership Society, ownership must be more than a theoretical possibility. Social assistance that is conservative must also be compassionate.

Health care reformers ought to remain mindful of the need for innovation and the moral value of individual choice and of human life. Efforts to fight global warming should not forget that much of what has improved the quality of our environment was not developed by centralized command and direction.

The second helpful theological concept is Christian Realism, a broad and sometimes amorphous body of thought associated with the Lutheran theologian Reinhold Niebuhr. I take two things from Niebuhr. The first is the call for Christians (but this could apply to persons of other faiths as well) to engage the world but to do so as they find it and not as they wish to be. The second is to recognize that human beings are sinful and broken and that efforts to, in the words of Bill Buckley, "immanentize the eschaton" are almost certain to fail and likely to bring unforseen danger.

Again, there are lessons for both conservatives and liberals. We ought to have known that efforts to create democracy in countries that had never been democratic would be harder than we expected. This is not to say that the wars in Iraq and Afghanistan were necessarily wrong, but we should have expected the unexpected.

On the other side of the aisle, President Obama claims that Niebuhr is his favorite philospher and he seems to understand the tension in Christian Realism between the call for engagement and the admonition to humility. But, as William Schambra explains in the inaugural issue of the journal National Affairs, Obama also seems to be what Daniel Patrick Moynihan called a "Policy President." He is in the tradition of early twentieth century Progressives who believed that "everything is related to everything" and that, as a consequence,"there are no social interests about which the national government does not have some policy or other."

Just as importantly, the policy approach eschews the notions of divided government and limited powers - as well as the rough and tumble of politics - because it will tend to prevent finely tuned comprehensive reform driven by technical experise. As Schambra puts it:

Echoing Moynihan's understanding of the implications of the policy approach, Obama suggests that tackling only isolated pieces of the problem, or trying to solve only one problem at a time, will merely introduce further distortions into what should be treated as a unified and coordinated system. A comprehensive policy approach will enable us to take maximum advantage of natural- and social-science expertise, displacing expensive or ineffective local practices by spreading system-wide those programs that have proven to be more effective and less expensive, as documented by thorough research and experimentation.


Of course, the "top down" nature of this approach raises subsidiarity concerns. But Realism also suggests that we view it with a critical attitude. During the campaign, President Obama suggests that we could create a Kingdom right here on earth. Realism suggests otherwise.

This doesn't mandate any particular policy approach. As the Popes have frequently said, the Church has no models to propose and God is neither a Democrat nor a Republican. Perhaps Obamacare - or something like it - can be justified in these terms. My modest suggestion is that subsidiarity and Christian Realism are useful heuristics.

Cross posted at Marquette University Law School Faculty Blog.

18 comments:

Brian said...

Eric Voegelin coined the term immanetize the eschaton.

Just ask Chris Wolfe, he loves the book in which this term appeared.

Anonymous said...

"University of St. Thomas Law School"? You mean Gableman no longer has the distinction of graduating from the worst law school in Minnesota? Tell me when this shop opened -- is is accredited? How are the poor dopes that marticulate here going to get jobs when recent graduates of real law schools are still hunting?

Dad29 said...

Regardless of who coined the phrase, it's a very good description of Progressive policies.

Brian said...

I know, but I can't help but point out the rarest of rare occasions where I know something the Shark doesn't about an author.

Anonymous said...

I think you left out that Christians are to first follow what scripture teaches and are to do what is right. Since Christians remain silent our problems have grown, terribly.

Jesus only provided health care to show people who He is. Our government should not be trying to do the same thing.

Rick Esenberg said...

Anon

St. Thomas is actually a pretty good school and has been fully accredited for some time now. It is a new and it has a very strong Catholic mission. It has, because of that mission, attracted a strong faculty and, I think, a very strong student body.

Incidentally, Hamline is probably not the worst

Anonymous said...

Your hyperpole knows no bounds.

Anonymous said...

Rick -- There are apparently now four law schools in the Twin Cities -- Minnesota, Billy Mitchell, Hambone, and now St. Thomas. Where are the poor suckers paying the big bucks to study law at St. Thomas going to find jobs when the kids who just graduated from the "real" law school (Minnesota) earlier this year can't find jobs?

William Tyroler said...

Incidentally, Hamline is probably not the worst

Damning with faint praise. In any event, it'd be hard to demonstrate. The University of Minnesota is undeniably in a class by itself, but how is it possible to distinguish the remaining three? They have comparable class profiles (LSAT, undergrad GPA), which for that matter aren't all that different from Marquette's. If you value USN rankings, you'd say that Hamline fares worst, because it's in the 4th Tier, while UST and WM are in the 3rd. If you look at the perhaps obscure but nonetheless objective measurement of law review ranking, then Mitchell comes out well ahead of the other two. Of course, there's the payoff window, and Mitchell comes off significantly better than its competitors with respect to median private sector starting salary. No doubt other datapoints result in a different pecking order, the larger point simply being that each of these 3 is basically a local law school.

All in all, though, anon 9:27 probably has it right. There's a glut of lawyers, made much worse by the recession, and it's really hard to see why UST saw the need for a 3rd local law school in a relatively small metropolitan area.

Anonymous said...

"...it's really hard to see why UST saw the need for a 3rd local law school in a relatively small metropolitan area."

Au contraire, it's easy to see why the folks at St. Thomas opened their unnecessary and lower-tier school: they figured it was an easy way to make some $$$ for an otherwise relatively undistinguished academic backwater.

What do you need to open a law school? A few blowhards to pontificate in front of a classroom of students who couldn't get into a "real" law school and who are able to pay for the privilege of doing so. You don't need expensive equipment, and you don't even need to hire "real" professors -- you can find local lawyers willing to take a small paycheck for the "honor" of becoming a professor.

This model worked when (arguably) we needed more lawyers (and that point is definitely arguable!), but it is a non-starter in today's economy when large law firms are downloading partners (check out the big firms here in Milwaukee in that regard!) and almost no one is hiring. Want proof? Many of the big law firms aren't hiring students for summer work anymore -- they are "mothballing" their summer associate programs. Who needs more lawyers, and what will the poor students at the lower-rung private law schools do to pay back the massive debts they are accumulating?

John Foust said...

"Hamline is probably not the worst..."

I think last time you followed that with "He'll do just fine."

Anonymous said...

From the University of St. Thomas Law School web site:

"Direct Costs: Actual tuition for first year law students for the 2009-2010 academic year at the University of St. Thomas School of Law is $34,472. Tuition is based on enrollment of 31 credit hours at a tuition rate of $1,112 per credit. Required fees for 2009-2010 total $284. This includes a Technology Fee of $159 and a Student Activity Fee of $125."

Let me get this straight... You spend over $100K on tuition and fees alone (not counting living expenses and books) to enter a job market where the number of openings for newly-minted lawyers is virtually non-existent? How you going to pay back that hundred grand, kid?

Rick Esenberg said...

Wow, I post on a paper that I presented and I get a lot of grief directed at the host school. One of the reasons that I like UST is that it is not just another law school, but has a distinctive mission and a faculty doing interesting stuff - or at least stuff that is interesting to me. There are a handful of "bottom half" schools that have an energy and a model that separates them from the pack and suggests that they may fill a niche. I think UST is one of them. It is trying to form lawyers in a different way. This is not to suggest that schools like Marquette do not seek to provide education in accordance with their Catholic identity (they - or at least we - do), but I think UST goes at in a way that is just a bit different. I don't know that I like it better than what we do, but I think it is worth someone trying to do.

If you want a comparable example of a "non-presigious" school associated with more "liberal" causes (and I would call UST rigorously Catholic rather than conservative), I'd offer Vermont Law School as a center for environmental law.


And, Foust, campaign issues aside, he actually has done fine.

Anonymous said...

UST isn't just "bottom half" -- it's "bottom quarter" at best. Again, when the market for newly-minted law schools has gone to pot (and when recent graduates from real law schools are still looking for jobs), what service does this diploma mill provide to the suckers who enroll there?

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