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Erastian and High Church Approaches to the Law: The Jurisprudential Categories of Robert E. Rodes, Jr.
Published online by Cambridge University Press: 24 April 2015
Extract
It is a great honor for me to have been asked to contribute to this issue of the Journal of Law and Religion focusing on the work of my colleague and friend, Robert E. Rodes, Jr. In June 2006, Professor Rodes celebrated his fiftieth anniversary as a member of the faculty of Notre Dame Law School. His long career has marked him as a founding father of interdisciplinary scholarship at the intersection of faith, law, and morality—the very sort of scholarship which this journal is dedicated to fostering and preserving.
The topics that Professor Rodes has considered over the years are wide-ranging; for example, he has written insightfully on both sexual ethics and economic justice. The methods that he has used are diverse; he has deftly deployed the tools of historiography as well as logic. Moreover, the normative stances that he has taken defy location on the normal liberal/conservative spectrum as it plays itself out in American political life. He has argued in favor of a legal system that would encourage a more traditional sexual morality, while emphasizing the need to compassionately accommodate those whose lives do not conform to its strictures. He has also maintained the importance of assessing social and economic structures from the perspective of the most marginalized members of the society, without succumbing to romantic illusions that technology, progress, or the dynamism of history will eliminate class stratification and its ensuing divisions of humanity into the “haves” and the “have nots.” His writings at the intersection of law and religion reflect neither the Democratic Party nor the Republican Party at prayer—and neither party at a town hall meeting, for that matter.
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References
1. See e.g. Rodes, Robert E. Jr., On Law and Chastity (Carolina Academic Press 2006)Google Scholar.
2. See e.g. Robert E. Rodes, Jr., Law, History, and the Option for the Poor, 6 LOGOS (USA) 61(1985).
3. See e.g. Robert E. Rodes, Jr., This House I Have Built: A Study of the Legal History of Establishment in England (series) (consisting of Rodes, Robert E. Jr., Ecclesiastical Administration in Medieval England: The Anglo-Saxons to the Reformation (U. Notre Dame Press 1977)Google Scholar; Rodes, Robert E. Jr., Lay Authority and Reformation in the English Church: Edward I to the Civil War (U. Notre Dame Press 1982)Google Scholar; Rodes, Robert E. Jr., Law and Modernization in the Church of England: Charles II to the Welfare State (U. Notre Dame Press 1991))Google Scholar [hereinafter Rodes, This House I have Built].
4. See e.g. Rodes, Robert E. Jr. & Pospesel, Howard, Premises and Conclusions: Symbolic Logic for Legal Analysis (Prentice Hall 1997)Google Scholar; Rodes, Robert E. Jr., De Re and De Dicto, 73 Notre DameL. Rev. 627 (1998)Google Scholar.
5. See e.g. Rodes, On Law and Chastity, supra n. 1.
6. See e.g. Rodes, Robert E. Jr., In Defense of Liberation Theology, 170 Am. 18 (02 5, 1994)Google Scholar.
7. For more information, see Ryan, T., Nicene Creed, in New Catholic Encyclopedia vol. 10, 354 (Marthaler, Bernard L.et al. eds., 2d ed., Thomson/Gale 2003)Google Scholar.
8. Roman Catholics generally recite the Nicene Creed during the Liturgy of the Word in Sunday Mass. The most commonly used text is as follows:
NICENE CREED:
We believe in one God, the Father, the Almighty,
maker of heaven and earth, of all that is seen and unseen.
We believe in one Lord, Jesus Christ, the only Son of God,
eternally begotten of the Father,
God from God, Light from Light, true God from true God,
begotten, not made, one in Being with the Father.
Through him all things were made.
For us men and for our salvation he came down from heaven:
by the power of the Holy Spirit
he was born of the Virgin Mary, and became man.
For our sake he was crucified under Pontius Pilate;
he suffered, died, and was buried.
On the third day he rose again in fulfillment of the Scriptures;
he ascended into heaven and is seated at the right hand of the Father.
He will come again in glory to judge the living and the dead,
and his kingdom will have no end.
We believe in the Holy Spirit, the Lord, the giver of life,
who proceeds from the Father and the Son.
With the Father and the Son he is worshiped and glorified.
He has spoken through the Prophets.
We believe in one holy catholic and apostolic Church.
We acknowledge one baptism for the forgiveness of sins.
We look for the resurrection of the dead,
and the life of the world to come. [Amen.]
Nicene Creed, http://catholic-resources.Org/ChurchDocs/Mass.htm#Word (accessed Mar. 23, 2007).
9. Shaffer, Thomas L., The Christian Jurisprudence of Robert E. Rodes, Jr., 73 Notre Dame L. Rev. 737, 738 (1998)Google Scholar (quoting a recorded conversation of the symposium on Mar. 25, 1995).
10. Rodes, Robert E. Jr., Pilgrim Law 11 (U. Notre Dame Press 1998) [hereinafter Rodes, Pilgrim Law]Google Scholar.
11. Id. at 11-12.
12. For example, Rodes's understanding of the way in which social structures, including legal structures, ought to incorporate an “option for the poor” is deeply influence by socialist political philosophy, see Djilas, Milovan, The New Class: An Analysis of the Communist State (Praeger 1957)Google Scholar, as well as by Christian liberation theology, see Gutierrez, Gustavo, A Theology of Liberation: History, Politics, and Salvation (Orbis Books 1973)Google Scholar.
13. Rodes, supra n. 3.
14. Rodes, Pilgrim Law, supra n. 10.
15. Id. at 11.
16. Id. at 11-12.
17. Id. at 12.
18. Id.
19. Id. at 12-13.
20. Id. at 13.
21. Id.
22. See e.g. Rodes, Robert E. Jr., What O'Clock I Say: Juridical Epistemics and the Magisterium of the Church, 14 J.L. & Religion 285 (1999–2000)CrossRefGoogle Scholar [hereinafter Rodes, What O'Clock I Say?]; Rodes, Robert E. Jr., On Juridical Elements in Theology, 28 Louvain Stud. 113 (2003)CrossRefGoogle Scholar [hereinafter Rodes, On Juridicial Elements in Theology].
23. Rodes, On Juridical Elements in Theology, supra n. 22, at 114.
24. Rodes, What O'Clock I Say, supra n. 22, at 286.
25. Rodes, Pilgrim Law, supra n. 10, at 140-144.
26. Rodes, On Juridical Elements in Theology, supra n. 22, at 122.
27. Id.
28. Id.
29. Id. at 125.
30. Id. at 123.
31. Id.
32. Id. at 130.
33. Id.
34. Id.
35. Id. at 131.
36. Id.
37. Id. at 131-132.
38. Id. at 123.
39. Id.
40. Id.
41. Id. at 125.
42. Id. at 126.
43. Id.
44. Id.
45. Id. at 126-127.
46. Rodes, Pilgrim Law, supra n. 10, at 6-7.
47. Id. at 7.
48. Id. at 6.
49. Id.
50. Rodes notes that a good example of such harmony is civil rights legislation. “The same statutes and judicial decisions that produced injunctions, contempt citations, and reinstatement with back pay, and cease and desist orders made people who practiced discrimination with impunity ashamed of themselves or at least defensive.…” Id. at 7.
51. Id.
52. Id. at 8.
53. Id. at 8.
54. Id. at 9.
55. Rodes describes the origin of this label in the following way:
The vision of the church as sharing the historical vicissitudes of the rest of society I call Erastian. Erastus (1524-83) was a Swiss theologian who taught that the church had no proper coercive jurisdiction independent of the civil magistrate. His name became attached to those Anglicans who were content with the substantial role played by Crown and Parliament in the affairs of their Church.
Id. at 141.
56. Rodes, Robert E. Jr., Pluralist Christendom and the Christian Civil Magistrate, 8 Cap. U. L. Rev. 413, 418 (1979)Google Scholar [hereinafter Rodes, Pluralist Christendom].
57. Rodes, Pilgrim Law, supra, n. 10, at 141.
58. Id. at 142.
59. Id.
60. He notes that “[t]he term was originally applied to those Anglicans who saw the polity and autonomy of the church as divinely established, or who stressed the sacramental and liturgical aspects of the Christian life rather than the personal and evangelical aspects.” Id. at 141.
61. Id.
62. Id. at 142.
63. Rodes, Pluralist Christendom, supra n. 56, at 418.
64. Rodes, Pilgrim Law, supra n. 10, at 143.
65. Djilas, supra n. 12.
66. For a succinct summary of the influence of Djilas on Rodes's work, see Schaffer, supra n. 9, at 742-746.
67. Rodes, Pilgrim Law, supra n. 10, at 153.
68. Id. at 153-154.
69. Id. at 156.
70. Id. at 157.
71. Id. at 154.
72. Aquinas, Thomas, Summa Theologica vol. 2Google Scholar, 993, pt. I-II, q. 91, art. 1 (Fathers of the English Dominican Province trans., Christian Classics 1981).
73. Id. at 996, pt. HI, q. 91, art. 2.
74. Id. at 1013-1017, pt. I-II, q. 95.
75. Id.
76. Rodes, Pluralist Christendom, supra n. 56, at 417.
77. It seems to me that the position of Australian Bishop Anthony Fisher, O.P., reflects this sensitivity to the moral stance of the broader culture. See Fisher, Anthony, Cooperation in Evil: Understanding the Issues, in Cooperation, Complicity & Conscience: Problems in Healthcare, Science, Law, and Public Policy 27 (Watt, Helen ed., Linacre Centre 2005)Google Scholar [hereinafter Fisher, Understanding Cooperation in Evil].
78. As a technical term of moral theology, “cooperation with evil” is generally used to describe a situation in which one agent (the “cooperator”) faces a situation in which his or her act will somehow contribute, in a subordinate way, to a morally unacceptable action plan designed and controlled by someone else (the “principal agent”). For a good introduction to me categories of the matrix used by traditional moralists, see Fisher, Anthony, Co-operation in Evil, 44 Cath. Med. Q. 15 (02 1994)Google Scholar.
79. Compare Fisher, Understanding Cooperation in Evil, supra n. 77; with M. Cathleen Kaveny, Tax Lawyers, Prophets, and Pilgrims: A Response to Anthony Fisher, in Cooperation, Complicity & Conscience: Problems in Healthcare, Science, Law, and Public Policy, supra n. 7 at 65. In Rodes's terms, Bishop Fisher could be understood as adopting more of a High Church approach to cooperation with evil, while I could be seen as adopting more of an Erastian approach to the question of cooperation with evil.
80. For a modified Erastian viewpoint mat makes this argument, see Glendon, Mary Ann, Abortion and Divorce in Western Law ch. 1 (Harv. U. Press 1987)Google Scholar.
81. For a passionate High Church viewpoint that makes this argument, see Harte, Colin, Changing Unjust Laws Justly: Pro-Life Solidarity with The “Last and Least” (Cath. U. Am. Press 2005)Google Scholar.
82. Wen, Patricia, Archdiocesan Agency Aids in Adoptions by Gays, The Boston Globe A1 (10 22, 2005)Google Scholar.
83. Id.
84. Agencies that provide adoption services need a license from the Massachusetts Department of Early Education and Care. 102 Code of Mass. Reg. 1.03 (1) (2005) provides that
The licensee shall not discriminate in providing services to children and their families on the basis of race, religion, cultural heritage, political beliefs, national origin, marital status, sexual orientation or disability. A statement that the program does not discriminate on these bases shall be made part of the written statement of purpose where required.
Operating without a license is not an option. Id. at 1.03 (2) (“No persons shall operate or purport to operate a program licensable by the Office of Child Care services without a license or approval.”).
85. Congregation for the Doctrine of the Faith, Considerations Regarding Proposals to Give Legal Recognition to Unions Between Homosexual Persons Pt. III, sec. 7, ¶ 3 (June 3, 2003) (available at http://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_20030731_homosexual-unions_en.html):
As experience has shown, the absence of sexual complementarity in these [homosexual] unions creates obstacles in the normal development of children who would be placed in the care of such persons. They would be deprived of the experience of either fatherhood or motherhood. Allowing children to be adopted by persons living in such unions would actually mean doing violence to these children, in the sense that their condition of dependency would be used to place them in an environment that is not conducive to their full human development. This is gravely immoral and in open contradiction to the principle, recognized also in the United Nations Convention on the Rights of the Child, that the best interests of the child, as the weaker and more vulnerable party, are to be the paramount consideration in every case.
86. Wen, Patricia, Church Reviews Role in Gay Adoptions, The Boston Globe B2 (11 4, 2005)Google Scholar.
87. Statement of the Massachusetts Catholic Conference on Behalf of Archbishop Sean P. O'Malley (Boston), Bishop George W. Coleman (Fall River), Bishop Timothy A. McDonnell (Springfield), and Bishop Robert J. McManus (Worcester) (Mass. Cath. Conf. Feb. 28, 2006) (available at http://www.macathconf.org/06-Bishops%20Statement%20on%20Adoption%20FINAL%2002-28.pdf). The key paragraph reads as follows:
Because of the Church's teaching, Cadiolic agencies may not provide adoptions to same sex couples. Hence we intend to seek relief from the regulatory requirements of the Commonwealth on this issue. We do this in the hope that we will be able to continue focusing our attention on serving children in need of adoption, and to do so in a way which does not conflict with Catholic teaching and practice. We are asking the Commonwealth to respect the Constitutional guarantee of religious freedom and allow the Catholic Church to continue serving children in need of adoption without violating the tenets of our faith.
Id. at ¶ 4.
88. Wen, Patricia, Bishops to Oppose Adoption by Gays, The Boston Globe A1 (02 16, 2006)Google Scholar.
89. Id.
90. Wen, Patricia, Seven Quit Charity Over Policy of Bishops, The Boston Globe A1 (03 2, 2006)Google Scholar. Later, an eighth member resigned as well. Wen, Patricia, In Break from Romney, Healy Raps Gay Adoption Exclusion, The Boston Globe B4 (03 3, 2006)Google Scholar.
91. Wen, Patricia, Bishops Dealt Setback in Pursuit of Gay Adoption Exemption, The Boston Globe B3 (02 17, 2006)Google Scholar.
92. Wen, Patricia, Bishops' Gay Ban May Cost Millions: Private Donors Wary of Adoption Policy, The Boston Globe A1 (03 5, 2006)Google Scholar.
93. Wen, Patricia, Catholic Charities Stuns State, Ends Adoptions, The Boston Globe A1 (03 11, 2006)Google Scholar.
94. Hehir, J. Bryan & Kaneb, Jeffrey, Statement of Catholic Charities, Archdiocese of Boston, On Adoption Programs ¶ 3 (03 10, 2006) (available at http://www.rcab.org/News/releases/2006/statement060310-2.html)Google Scholar.
95. Viewed from a financial perspective, adoption services constituted only a small portion of the portfolio of Boston Catholic Charities. In the fiscal year 2005, its total revenue was $37 million; its reimbursement for adoption services comprised only $1 million. Catholic Charities, Archdiocese of Boston, Catholic Charities of Boston to Transition Adoption Placement Services to Child & Family Services (Apr. 28, 2006) (available at http://www.ccab.org/whats_new.htm#adoption_transition).
96. Wen, Patricia, “They Cared for the Children”: Amid Shifting Social Winds, Catholic Charities Prepares to End its 103 Years of Finding Homes for Foster Children and Evolving Families, The Boston Globe A1 (06 25, 2006)Google Scholar.
97. A Globe Conversation with Archbishop O'Malley, transcript, The Boston Globe Question 7 (03 19, 2006) (available at http://www.boston.com/news/local/massachusetts/articlcs/2006/03/19/omalley_transcript)Google Scholar.
98. Goodridge v. Mass. Dept. Pub. Health, 440 Mass. 309, 798 N.E.2d 941 (2003).
99. From this perspective, same-sex marriage is not so much wrong as impossible—a contradiction in terms. See e.g. May, William E., On the Impossibility of Same-Sex Marriage: A Review of Catholic Teaching, 4 Natl. Cath. Bioethics Q. 303 (2004)CrossRefGoogle Scholar.
100. Editorial, Abandoned Children, 100 Commonweal 5 (Mar. 24, 2006) (available at http://www.commonwealmagazine.org/article.php3?id_article=1566&var_recherche=...abandoned+children) claims that “both the bishops and the Massachusetts legislature are wrong”—the legislature for not granting an exemption to Catholic Charities in the first instance, and Catholic Charities for not continuing to provide adoption services despite the refusal of the exemption.
101. Rodes, Pilgrim Law, supra n. 10, at 12-13.
102. Id.
103. See Commonweal, supra n. 99, at 5 (explicitly acknowledging this point about the track-record of the traditional family).