Bologna Revisited

What is the mission of a Catholic law school, and how do we achieve it? Fr. Michael Buckley’s book The Catholic University as Promise and Project sets out”very artfully, to my mind”the ecclesial context in which lawyers in Catholic universities should think about the religious dimensions of the institutions they are, willy-nilly, building up, tearing down, or neglecting, as the case may be. The title of the book also helpfully suggests the proper method in exploring this vital issue. “Promise and Project”: The promise must be specified before the project can have a chance of succeeding.

Lest this exploration remain, as they say, at the level of abstraction, let me make a concrete claim my point of departure: Erie v. Tompkins (1938) was wrongly decided. On the surface, the issue in this landmark case concerned the body of the law on which a federal (as opposed to a state) court should reach its judgment. The Supreme Court of the United States held in Erie that the lower federal courts had erred when they decided liability in this tort case according to what had long been known as “general law” or “common law.” In deciding according to such law, the lower courts had dutifully followed the venerable case of Swift vs. Tyson (1842), in which the Supreme Court established the federal statutory duty of federal courts, when deciding cases in which there was neither federal law nor state statute law on point, to decide cases according the federal courts’ own judgment of what the general law was or should be, even to the point of ignoring the state supreme court’s holdings as to the general law in that state. According to Erie , however, the lower courts should have decided according to the “local” law of Pennsylvania, the state in which the incident in question occurred.

Right below the surface of this apparently arcane dispute was the all-important question of whether general law is, as it had been thought for millennia to be, truly law . Writing for the majority, Justice Brandeis declared the coming theory of law by quoting from the gold standard of twentieth-century American jurisprudence, Mr. Justice Holmes: “[L]aw in the sense in which courts speak of it today does not exist without some definite authority behind it . . . . The authority and only authority is the State.” The general law stretching back to the time, indeed to the very language, of Cicero turned out, at a stroke of the Brandeisian-Holmesian pen, not to be law at all, for it lacked the authority of a modern state. No state, no law.

Heavens. Lurking in the midst of a technical disquisition on the law to be followed by federal courts is a theory of the City of Man, in other words, of man, the state, and who is God. My sampling, moreover, confirms that many who teach Erie today do so more or less in the spirit of Judge Henry Friendly, who waxed rhapsodic in his famous essay “In Praise of Erie ”: “[ Erie ’s] complementary concepts . . . seem so beautifully simple, and so beautifully simple, that we must wonder why a century and a half was needed to discover them, and must wonder even more why anyone should want to shy away once the discovery was made.”

Thus Friendly. But can a Catholic say amen to that, at least not without hesitating long and then doing a lot of distinguishing?

In answer to Friendly I can suggest a number of reasons to shy away from Erie ’s logic, the chief of these being enthusiastic commitment to the jurisprudential method Judge Noonan identifies as “the preferred approach of that nascent and vigorous Catholic culture” that was born in Bologna in the mid-twelfth century. This approach, which consisted of “collecting authorities, critically comparing them, and challenging their conclusions” is not a quaint foreign tradition of merely academic interest, but is in fact “a common Anglo-American patrimony.” It was this patrimony that Louis Dembitz Brandeis and those for whom he spoke wished to discredit and demolish.

Let me be clear. I do not suggest that there exists “a Catholic position” on Erie . No straight line runs rail-like from Nazareth to the exact source of the liability in tort, if any, of the Erie Railroad Co. The Catholic tradition of reflection on the City of Man, however, raises questions that might lead to different results from a jurisprudence according to which law is all and only what the civil authority declares. Specifically, the method from Bologna assumes that there exists”or, to assert the point denied by the jurisprudence of Erie , there should exist”a ius commune , that is, a truly common law that transcends the acts of legislatures or even the decisions of courts within particular jurisdictions.

Yet how many experts in Federal Courts have even heard of the ius commune ? Some, but not enough. How many contemporary law professors are in control of the “method of collecting authorities, critically comparing them, and challenging their conclusions?” Some, but most people today live in flight from authority and authorities. In order not to be insufficiently provocative, I would add that textualism, too, though championed by great jurists whom I respect, is in derogation from the best of the legal tradition I have in mind. The principal announced aim of the textualism advocated by Justice Scalia is to keep things simple, yet things were acknowledged as far from simple at Bologna. But these are just examples, which could be multiplied, and none of them is dispositive of the more basic point: Catholics sometimes ask different questions and, therefore, sometimes reach different answers.

With this in mind, we can return to our main question. What is the mission of a Catholic law school, and how do we achieve it? Judge Noonan asserts that “the law studies are the same whatever the denominational label of the school,” but I suggest that, in limning the distinctive Bolognese tradition, he himself to some extent contradicts this assertion. After all, the Civil Procedure lecture that challenges Erie on Bolognese grounds is fundamentally different from the one that rhapsodizes with Judge Friendly. Bolognese students-become-judges might well feel compelled by elementary legal logic to overturn Erie . And, short of such a radical shift in pedagogical perspective, there is at least the possibility that law students will be given the opportunity to discover the Bolognese dialectical method.

But how will students be able to make this discovery? Here I shall be blunt: Personnel is policy. On this point, Noonan is incisive:

I see no point in pretending that it does not make a difference what religion the faculty professes . . . The main attraction of a Catholic law school should be the historical, jurisprudential, and ethical dimensions . . . . There are Protestants and Jews and agnostics who would be attracted to such a school. It would be a mistake to exclude them. It would be equally a mistake to ignore the likelihood that only a body the core of which is Catholic will have the concerns and commitments that perpetuate the connection with theology, philosophy, and history that constitute the school’s Catholic character.

I could hardly agree more, though I would propose two friendly amendments.

First, it’s not just that some non-Catholics will be attracted to what is uniquely on offer in a Catholic law school. I would say (in the words of Fr. Buckley) that “[s]uch a community must also include within itself all that passes for knowledge, all human traditions and cultures as well as the academic freedom which makes open discussion possible. Without the active presence of all these various traditions, it would be neither a university nor of service to the Church in promoting the relationship of the gospel ‘to all human culture.’”

Second, it will not be sufficient for the Catholic “core” to be baptized, confirmed, professing, and Mass-going. To continue the Catholic legal tradition they must be steeped in the methods, questions, and answers of that tradition, which means they cannot have narrowly technical legal educations. On the traditional view, it is philosophy, along with theology, that teaches the necessary conditions for framing law. Philosophy and theology are, in Kant’s phrase, “architectonic discipline”; they provide knowledge that brings order to the vast assemblage of other knowings. In any authentically Catholic law school, then, philosophy will, as Noonan says, occupy an “unchallenged place.”

Even if you agree with all that I have said, there remains a hard question. How to accomplish the promise sketched? What to do? Here I shall be even more blunt. Some problems require top-down solutions, others bottom-up remedies, and when it comes to Catholic law schools who aren’t yet shouldering parts of the project necessary to reach their promise, there’s no one-size-fits all approach. But it is always the case that someone or some group must say, on behalf of the People of God: This “Catholic university” through its schools has unique work to do. Judging by what seems to be going on or not going on in most of the nominally Catholic law schools in the United States today, this isn’t being said much, either by the laity or by the clergy. When the entrenched faculty do not call for fulfillment of the promise of a Catholic law school, then only the administration, which is replaceable by the president and board, in conjunction with the faculty, is in position to break the logjam.

But here we must identify and face the risk that all our good works will by misadventure be undone by ourselves. The supreme law in the Church is charity. Our efforts to identify our mission and to find and recruit people who will care about it must always be marked by respect for all concerned, even as we marshal our forces to live by our Christian convictions as builders of authentically Catholic law schools. Community prayer, both Catholic and ecumenical, must punctuate and animate the life of the community. Without it, the builders labor in vain.

And we must not build in vain. It is well to remember that, as James Brundage demonstrates in his magisterial book The Medieval Origins of the Legal Profession , the medieval law school and its methods were not add-ons to the university but, rather, the very prototype of the university, right alongside and in healthy competition with the school of theology and its methods. And this is not merely the occasion for nostalgia, because, I submit, the necessary and sufficient conditions of saying what is law for us humans have remained essentially unchanged in the intervening millennium. The scriptural confirmation of the reality of a natural law written on our hearts underscores the importance of measuring our man-made legal artifacts against that higher law. Any viable contemporary method for doing this will represent a variation on the Bolognese legacy that we are called to reappropriate.

Patrick McKinley Brennan is the John F. Scarpa Chair in Catholic Legal Studies and professor of law at Villanova University School of Law.