• Disputatio

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Bray on the (Roman?) Catholic Intellectual Tradition and the Common Law

Professor John Witte is a central figure in the coming of the field of law and religion. Together with Professor Harold Berman, whose Law & Revolution set the terms of the field as a distinctive discipline, Witte’s work has been seminal across a broad swath of critical questions. In some recent work, I describe Witte’s efforts as in some measure moved by a kind of counter-strict-separationism in the way that law and religion were viewed in the mid-20th century. His was, in its way, a project of reintegration.

Be that as it may, I want to highlight a wonderful new book of essays just published by Brill all reflecting on various of Witte’s contributions: Faith in Law, Law in Faith, co-edited by Professors Rafael Domingo, Gary S. Hauk, and Timothy P. Jackson. The essays in this book are all free to read, all available for download at the link above, so you have no excuse but to dive in. They include pieces by such giants as Professors R.H. Helmholz, Nicholas Wolterstorff, Mark Noll, and many other luminaries.

Of particular interest for us here at the Center and at The Catholic University of America in general is an essay by Professor Samuel Bray of the University of Notre Dame Law School, titled, When Catholicism Was Part of the Common Law: The Influence of the Catholic Intellectual Tradition, which Professor Bray first delivered as a talk at an event of the Center for Constitutional Originalism and the Catholic Intellectual Tradition with Professor John Stinneford and our own Professor Will Kamin.

Professor Bray’s core claim is that to the extent that the Catholic Intellectual Tradition is limited to Roman Catholic thinkers and sources, then its influence on the English (and by extension, the American) common law was comparatively limited, in light of the fact that the “common law was by and large developed by people who had taken an oath not to follow the commands of the bishop of Rome.”

Nevertheless, Bray writes, there are three important modes in which one can see the influence of the Catholic Intellectual Tradition on the common law, which he calls “inheriting, conversing, and generating.” I am going to quote a bit from his rich discussion of the “generating” modality of influence (omitting footnotes). In my own view, Bray’s points have great interest and suggest both a challenge and a rather great opportunity for us at the Center for Law & the Human Person and for the project of the recovery of classical legal thought.

The Roman and non-Roman sides both appealed to the scriptures and invoked the tradition of the early church. Each side thought that it would win the argument if it could only show that the other side had—to use a Newmanesque word long before its time—“developed” the doctrine. All agreed that whoever had not changed or augmented the deposit of faith was the truly catholic side.

So in Paris and Rouen, on the French side of the English Channel, the Catholic intellectual tradition was proceeding apace. And on the other side of the Channel, in London and Canterbury—by the lights of the English bishops and jurists—the Catholic intellectual tradition was also proceeding apace. The jurists in the Church of England considered themselves Catholic. The preface to the 1662 Book of Common Prayer says the revisers rejected any proposed changes that would strike at the doctrines and practices “of the whole Catholick Church of Christ.” The Church of England, including in its members the common law judges, prescribed the regular recitation of the Apostles’ Creed, Nicene Creed, and Athanasian Creed. These creeds refer, respectively, to “The holy Catholick Church”; “one Catholick and Apostolick Church”; and “the Catholick Faith” and “the Catholick Religion.” The Prayer for All Sorts and Conditions of Men, which is ordered for use four days a week, includes a petition for “the good estate of the Catholick Church.” Similar references can be found in the canons of the Church of England, Bishop John Jewel’s Apology, and Richard Hooker’s Laws of Ecclesiastical Polity.

In other words, if we are going to try to understand the jurists who developed the common law, we will find that they publicly identified themselves as “Catholic,” in the sense of being part of the universal church…

[T]he hallmarks of the Catholic intellectual tradition characterize leading thinkers before the Reformation as well as after its inception, in both Catholic and Protestant countries. It would be unimaginable to read the works of Saint Augustine and Francisco Suárez, along with the works of Richard Hooker and Johann Oldendorp, and not find in all of them “the integration of reason and revelation.” If I could put the point even more expansively, what Professor [John] Cavadini describes as the hallmarks of the Catholic intellectual tradition are simply the hallmarks of Mere Christianity. And perhaps, dear reader, you are aware of who wrote that book.

Allow me to put this a little more crisply. If we were to say the Catholic intellectual tradition means the Roman Catholic tradition, then there would be some influence on the common law. That influence would have two modes: inheriting and conversing. But in this view, the Catholic intellectual tradition would still have been viewed by the great common law judges as something apart. They could see it from where they stood. But it was in the distant past or in the distant present, across the waters of the English Channel.

Yet the contours of this intellectual tradition are not specifically Roman Catholic. All the great English jurists I mentioned would find themselves squarely within what could be called the Catholic, or catholic, intellectual tradition. In fact, given the cross-confessional argument and pollination in the early modern period, across the republic of letters, it is plausible to think that sharply demarcated “Catholic” and “Protestant” intellectual traditions are from a later time. Perhaps that time is even as late as the nineteenth century, with the rise of German universities and a resurgent papacy marked by skepticism of modernity…

In short, if we recognize a broader referent for the Catholic intellectual tradition, one that encompasses at least Western Christianity, the boundaries of the concept will prove less anachronistic. And then, once we allow the common law judges to fit within this tradition, the question asked at the start of this chapter receives a dramatic answer. We are face to face with the vast influence of Christianity on the common law.

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Bray on the (Roman?) Catholic Intellectual Tradition and the Common Law

Bray on the (Roman?) Catholic Intellectual Tradition and the Common Law

Will Haun

Will Haun is Senior Counsel at the Becket Fund for Religious Liberty, a nonprofit, nonpartisan law firm that defends religious liberty for all faith traditions. He is also a nonresident fellow at the American Enterprise Institute where he focuses on constitutional law. In law practice, Will has represented religious institutions, current and former elected officials, and businesses in courts nationwide, particularly in the U.S. Supreme Court and federal appellate courts. His writing on law and religion appears in various popular and scholarly publications, and he speaks on those topics at major universities. In addition to working at two international law firms, Will clerked for Judge Janice Rogers Brown on the U.S. Court of Appeals for the D.C. Circuit and Judge Claude M. Hilton on the U.S. District Court for the Eastern District of Virginia. He received his J.D., cum laude, from the Catholic University of America, Columbus School of Law, where he was a published member of the Law Review. He received his B.A. in political science, cum laude, from American University. He is a Knight of Merit in the Sacred Military Constantinian Order of St. George.

Carter Snead

Carter Snead is the Charles E. Rice Professor of Law and the Director of the de Nicola Center for Ethics and Culture at Notre Dame Law School. Professor Snead is one of the world’s leading experts on public bioethics with extensive research that explores issues relating to neuroethics, enhancement, human embryo research, assisted reproduction, abortion, and end-of-life decision-making. Professor Snead received his J.D. from Georgetown University and his B.A. degree from St. John’s College in Annapolis, Maryland.

Lucia Silecchia

Lucia Silecchia is the Associate Dean of Faculty Research and a Professor of Law who has taught at Catholic University’s Columbus School of Law since 1991. Professor Silecchia has written extensively in the areas of environmental law and ethics, elder law, Catholic social thought, legal education, law and literature, and legal writing. In December, 2016, she began service as an Expert to the Permanent Observer Mission of the Holy See to the United Nations, assisting on matters related to the elderly, people with disabilities and ecology. Professor Silecchia received her J.D. from Yale Law School. And her B.A. degree from Queens College (C.U.N.Y.).

Luis Perez

Luis J. Perez is a Partner at McDermott, Will & Emery in its Miami office and focuses his practice on mergers and acquisitions and corporate governance matters, including international transactions, for clients operating throughout the United States and Latin America. Mr. Perez is a member of the Council on Foreign Relations and is also a senior editor for the Harvard Advanced Leadership Initiative Social Impact Review. He received his J.D. from The Catholic University of America, Columbus School of Law and his B.A. degree from Rollins College.

Michael Moreland

Michael Moreland is University Professor of Law and Religion and director of the Eleanor H. McCullen Center for Law, Religion and Public Policy at Villanova University Charles Widger School of Law where he has taught numerous courses including Torts, Evidence, Bioethics and the Law, Advanced Torts, Constitutional Law II, Justice and Rights, and seminars in Law and Religion. As a renowned scholar in these fields, Professor Moreland has published articles in leading legal, public policy, and medical journals, and his chapters on law, ethics and religion have been featured in numerous books, including titles published by Cambridge University Press and Oxford University Press. Professor Moreland received his J.D. from the University of Michigan Law School, his M.A. and Ph.D. in theological ethics from Boston College, and his B.A. degree in philosophy from the University of Notre Dame.

Veryl Miles

Veryl Victoria Miles teaches Consumer Bankruptcy and Commercial Law courses at the Catholic University of America, Columbus School of Law, where she was previously Dean from 2005-2012. Much of her extensive scholarship has been devoted to the subject of consumer bankruptcy law as well as a range of issues regarding legal education and admission to the bar. Professor Miles is a graduate of Wells College in Aurora, New York, and received her J.D. from The Catholic University of America, Columbus School of Law.

Rev. Aquinas Guilbeau, O.P.

Rev. Aquinas Guilbeau, O.P., is University Chaplain and Director of Campus Ministry at The Catholic University of America. He previously taught moral theology of the Dominican House of Studies and served as Prior of the Priory of the Immaculate Conception in Washington D.C.. Father Aquinas’s scholarship focuses on Thomas Aquinas and the common good. He entered the Dominican Province of St. Joseph in 2005, and after several years of pastoral work, received his doctorate at the University of Fribourg (Switzerland).

David Crawford

David S. Crawford is Dean and Associate Professor of Moral Theology and Family Law at the Pontifical John Paul II Institute for Studies on Marriage and Family at The Catholic University of America. Dr. Crawford’s research has focused on natural law, gender identity, homosexuality, and the anthropological implications of modern civil law. He has an S.T.D., S.T.L., and M.T.S. from the Pontifical John Paul II Institute, a J.D. from University of Michigan Law School, an M.A. in writing from the University of Iowa, and B.A. from the University of Iowa.

Gerard V. Bradley

Gerard V. Bradley is professor of law at the University of Notre Dame, where he teaches Legal Ethics and Constitutional Law. He serves on the editorial board of the American Journal of Jurisprudence, which he formerly co-edited. Professor Bradley’s scholarly work focuses on the intersection of religious liberty, Catholic social teaching, and American law. He has written many books including Unquiet Americans: U.S. Catholics and America’s Common Good (St. Augustine’s Press, 2019). He received his B.A. and J.D. from Cornell University.

Erika Bachiochi

Erika Bachiochi is a Fellow at the Ethics and Public Policy Center and a Senior Fellow at the Abigail Adams Institute. Her scholarship focuses on feminist legal theory, Catholic social teaching, and Equal Protection jurisprudence. Ms. Bachiochi’s most recent book, The Rights of Women: Reclaiming a Lost Vision, published by University of Notre Dame Press in 2021, was a finalist for the Intercollegiate Studies Institute’s Conservative Book of the Year Award. She has edited two other books, and her writings have appeared in publications such as the Harvard Journal of Law and Public Policy, The New York Times, and The Atlantic. Ms. Bachiochi has a J.D. from Boston University School of Law, an M.A. from Boston College, and a B.A. from Middlebury College.

Helen Alvaré

Helen M. Alvaré is the Robert A. Levy Endowed Chair in Law and Liberty at Antonin Scalia Law School, George Mason University, where she teaches Family Law, Property Law, and Law and Religion. Her research focuses on marriage, parenting, non-marital households, and freedom of religion. She has published several books including Religious Freedom After the Sexual Revolution: A Catholic Guide with Catholic University of America Press in 2022, and Putting Children’s Interests First in American Family Law and Policy: With Power Comes Responsibility with Cambridge University Press in 2017. In addition to her scholarship, Professor Alvaré is a member of the Holy See’s Dicastery for Laity, Family, and Life and a board member of Catholic Relief Services. She holds a J.D. from Cornell University School of Law, an M.A. in Systematic Theology from Catholic University of America, and a B.S. from Villanova University.

William Rooney

William H. Rooney is the Lumen Legis Fellow of the Center for Law and the Human Person and a Lecturer at the Columbus School of Law at The Catholic University of America. His primary areas of scholarship and teaching are law in the Catholic intellectual tradition and antitrust law. Mr. Rooney aspires to contribute to the Center in collaboration with students, scholars, and practitioners and through his experience in philosophy, law, and economics. He is especially interested in studying the human person as the imago Dei who receives the light of all law from God, the Eternal Light, Creator, and Lawgiver. Mr. Rooney has been a lifelong student of the Catholic intellectual tradition and its intersection with law and economics. He has an M.A. in Philosophy from Holy Apostles College and Seminary, a J.D. from Yale Law School, a Diploma in Law from the University of Oxford, and a B.A. from the University of Notre Dame. Mr. Rooney is a former partner of Willkie Farr & Gallagher LLP and former co-head of Willkie’s Antitrust Practice Group and practiced antitrust law for over 30 years. Mr. Rooney is a Trustee of the Dietrich von Hildebrand Legacy Project and has collaborated with the Collegium and the Portsmouth Institutes.

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Louis Brown

Louis Brown is the Center’s Associate Director. Brown received a Juris Doctorate from Howard University School of Law. After law school, he first worked as a private practice attorney for a firm where he practiced labor law and commercial litigation. He later served as associate director of social concerns for a state Catholic conference. While at the conference, among other efforts, he advocated for life-affirming health care policy, co-led a legislative coalition in favor of housing non-discrimination legislation, advocated for in-state tuition for undocumented immigrants, and sought to protect the social safety net for the poor. Brown went on to become a Congressman’s legislative counsel and his liaison to the U.S. House Committee on the Judiciary. He also served as the Congressman’s primary health care staffer. 

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Marc DeGirolami

Marc O. DeGirolami is the inaugural St. John Henry Newman Professor of Law and Co-Director of the Center for Law and the Human Person. His publications include The Tragedy of Religious Freedom (Harvard University Press) and articles in the Yale Law Journal, Notre Dame Law Review, Washington University Law Review, Constitutional Commentary, Legal Theory, and the Boston College Law Review, among others. Before joining the Columbus School of Law in 2024, he was the Cary Fields Professor of Law and the Co-Director of the Mattone Center for Law and Religion at St. John’s Law School. He has also been a Visiting Professor and Visiting Fellow at Princeton University’s Department of Politics, as well as a Visiting Professor at Notre Dame Law School and The Catholic University of America Columbus School of Law. His professional experience includes service as an Assistant District Attorney in Cambridge, Massachusetts.

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Elizabeth Kirk

Elizabeth Kirk is the Center’s Co-Director and Assistant Professor of Law at The Catholic University of America Columbus School of Law. She joined the Columbus School of Law after serving as the Director and Kowalski Chair of Catholic Thought at the Institute for Faith and Culture at the St. Lawrence Catholic Campus Center at the University of Kansas. From 2005 to 2010, she served as the Associate Director of the Notre Dame Center for Ethics and Culture, an interdisciplinary center inspired by the teachings of St. Pope John Paul II and dedicated to bringing the Catholic moral, intellectual and cultural tradition to bear upon the formation of students. From 2012 to 2016, Kirk served as a resident fellow in cultural and legal studies at the Stein Center for Social Research at Ave Maria University.

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