• Disputatio

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Enfolded in Care: Aquinas & Contemporary Family Law

I was honored to participate recently in the Pontifical Academy of Social Sciences Workshop entitled “Aquinas’ Social Ontology and Natural Law in Perspective: Insights for and from the Social Sciences.” It was a tremendous privilege as the first day of the conference took place at Fossanova Abbey, where St. Thomas Aquinas died 750 years ago, on his dies natalis. The second day of the conference was held at the Casina Pio IV, a patrician villa in Vatican City and home to the Pontifical Academies of Sciences and Social Sciences. 

I was asked to give a presentation on the challenges in contemporary family law in light of Aquinas’ social ontology and the natural law. Here is an excerpt from my paper, “Enfolded in Care: Challenges to Parental Rights in Contemporary Family Law” (citations are omitted for ease in reading):

For a child to be “enfolded in care,” then, is to be nestled within the conjugal union and subject to the authority of the domestic order (and ultimately within the political and ecclesial orders as well) which itself is subject to the teleological order of the natural law and justice. To be “enfolded in care” is to be part of a real, integral, and indissoluble whole that is far richer and more profound than a simple grouping of individuals who interact through the happenstance of genetic relations or through chosen and dissolvable acts and whose goods are expressed only as individual rights often in conflict with one another. 

In contemporary discourse, as we are more and more disconnected from this deeper reality, we are left only to speak of parental “rights” such as when the Church affirms the “essential and inalienable right” of parents to direct their child’s education. Of course, this is true and important to both expect parents to fulfill their obligation and to defend their freedom to do so in law. And yet, much has been written about the impoverished language of rights, and you get a glimpse of it here by comparing these two ways of speaking about the parent/child relationship: “parental rights” which risks reducing everything to a binary power struggle between State and individual (or worse between parent and child), or to be “enfolded in care.” 

What is the relation of human law to the “givenness” of this domestic order? …. First, because the family is not a perfect society (i.e., it is not self-sufficient, having everything in it sufficient for human life), it needs the assistance of the polity to flourish. …. Second, the assistance rendered by human law to the family must be based on what is fitting for its object, namely the common good, which contains and perfects the goods of the human person and the family. Thus laws pertaining to domestic relations must “respect and protect the social form and ends of marriage and family.” …. A third point: there are limits to the competence of human law. Aquinas admits that laws may change according to changed circumstances or customs, but human law cannot violate natural law. Thus, as Pope Leo XIII states in Rerum Novarum, human law cannot “abolish the natural and original right of marriage, nor in any way limit the chief and principal purpose of marriage.” It is thus beyond the competence of the political order to contravene the natural order of the family, or to perform functions that are proper to the family, as the larger order respects the proper functioning of the subsidiary order as an integral participant in the common good.

While a robust Thomistic realism cannot ignore naively the “world as it really is,” neither can it refrain from pointing out its errors. ….

Those of us called to labor in the vineyard of the law must continually try to recover, as Pope John Paul II exhorted us to do, “the basic elements of a vision of the relationship between civil law and moral law, which are put forward by the Church, but which are also part of the patrimony of the great juridical traditions of humanity.” At a minimum, we must resist the further deterioration of the law where we can.

Here, the social sciences are necessary to preserve law’s grasp on reality, and to identify fresh ways of describing reality that correspond to human experience. Indeed, this is the goal of the social sciences: to identify, describe, and analyze the social nature of the human person. …. 

But, without a teleology or relational framework, social science data itself can be manipulated for partisan purposes and can fail to direct us to the authentic common good. We must resist instrumentalizing social science or even the features of natural law, shorn of their ontological richness. Rather the disciplines together must seek ways to communicate the truths of the human person and of marriage and of the family in a way that is winsome and appealing, and yet is still in connection with our most enduring traditions and with the truest realities.

My contribution will appear as a chapter, along with the other symposium papers, in a forthcoming book. 

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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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