The Internal Stratification of Thomistic Juridical Realism (Popović & Schouppe)

In Natural Law & Thomistic Juridical Realism: Prospects for a Dialogue with Contemporary Legal Theory, Petar Popović draws on the scholarship of Jean-Pierre Schouppe to present a three-level account of Thomistic juridical realism. In Chapter 2, “The Realistic Conception of Right and Juridicity,” Popović includes a section titled “The Internal Stratification of Thomistic Juridical Realism.” The three levels identified by Popović (via Schouppe) in this section are:

  1. “adherence to the methodology of Thomistic realism” (103):

    On this level, a legal theory cannot yet be qualified as juridical realism in any sense, since here it subscribes only to Thomistic openness to things-as-they-really-are, in contrast to any position that would deny the validity of this cognitive approach. Schouppe labels this type of theory as ‘realism in a philosophical sense,’ or ‘moderate philosophical realism.’ (103)

  2. “juridical realism in a broad sense, or objectivism” (103):

    The authors who adhere to the postulates of Thomistic realism make an additional claim at this level: human moral and relational nature is imbued with objective normative content (i.e., the natural moral law). This natural law is the antecedent criterion for the legitimacy of the juridical domain, more precisely of subjective rights and positive law. Schouppe remarks that that authors who remain on this second level usually subscribe to a vision wheren the ius is primarily defined as a subjective claim-right, and they generally acknowledge that human relationality somehow contains the ‘primary objective criteria’ of justice. (103)
    I would like to further this claim. The theories of the authors on the second level share a peculiar progression of arguments, which goes like this: if particular phenomena of the juridical domain — positive law and enactments of subjective rights — are in conformity with the natural moral law, then they legitimately constitute obligations of juridical justice. At this level, the juridical due — the obligation of juridical justice — is constituted only after the moral domain of natural law has already determined the content of positive law and subjective claim-rights through legislation or other means of positing the social sources of law. In the case of natural rights, according to this line of argument, the standard of legitimacy of claim-rights is inscribed exclusively in the moral status of the given aspect of human nature (i.e., in the moral res). The theories of Jacques Maritain, John Finnis, and Henry B. Veatch may be situated on this level given their understanding of the juridical domain as, essentially, a structural extension of prior, metajuridical, objective moral norms. (103-04)

  3. “juridical realism in the strict sense” (104):

    The third level, which Schouppe calls ‘juridical realism in the strict sense,’ gathers the theories of those authors who ‘climb’ the first two levels of the spiral stairway, but these authors also endorse certain specific claims proper to the third level. The first claim is that the essential definition of ius is already provided by Aquinas and that it still constitutes the primary meaning of that which is juridically right. On this third level, therefore, the right is the object of the virtue of justice. The juridical due is established whenever a thing (res) is owed in justice to its titleholder. This basic feature of juridical realism in the strict sense implies that certain things, including natural human goods delineated in the moral domain, are already juridical goods, on the basis of their being owed in justice to their titleholder. Besides certain aspects of arguments advanced by Hittinger, Brock, and to some degree, Simon and Rommen, none of the authors from the first chapter have clearly articulated or endorsed this central feature of a realistic conception of right and juridicity. Villey and Hervada, however, as we are about to see, have fully subscribed to all the claims of the juridical realism in the strict sense. (104-105)

Based on this stratification, the “central feature of a realistic conception of right and juridicity” is that “the right is the object of the virtue of justice,” such that “[t]he juridical due is established whenever a thing (res) is owed in justice to its titleholder.” Popović identifies two authors who fully subscribe to this claim: Michel Villey and Javier Hervada. Four other authors have embraced certain aspects of Thomistic juridical realism in the strict sense, according to Popović: Russell Hittinger, Stephen Brock, Yves Simon, and Heinrich Rommen. Among those who have not embraced this third level of Thomistic juridical realism, Popović refers back to theorists from a prior chapter: H.L.A. Hart, Ronald Dworkin, John Rawls, and Joseph Raz. Also among those who have not embraced Thomistic juridical realism in the strict sense are the theorists Popović places firmly in the second section: John Finnis, Jacques Maritain, and Henry Veatch. If one looks back to the first chapter, other sources that partially embrace or show openness to the third-level understanding of Thomistic juridical realism are: Ralph McInerny, Jean Porter, and the International Theological Commission document, In Search of a Universal Ethic: A New Look at the Natural Law (2009).

adjudication-related considerations in Sheetz v. El Dorado

The Supreme Court’s recent decision in Sheetz v. El Dorado County (2024) features a unanimous opinion for the Court by Justice Barrett and separate concurring opinions by three other Justices (Sotomayor joined by Jackson; Gorsuch solo; and Kavanaugh joined by Kagan and Jackson). These separate opinions address themselves in different ways to the narrow scope of what was decided in the opinion for the Court.

The question presented was whether conditions imposed on building permits are exempt from regulatory takings scrutiny because they are imposed pursuant to legislation rather than administratively. The Court answers this question “no.”

Sotomayor (joined by Jackson) wrote separately to note that there is an antecedent question, one not addressed by the Court, which is “whether the permit condition would be a compensable taking if imposed outside the permitting context.”

Gorsuch wrote separately both to note that the Court’s opinion did not address another question and also to suggest that this question had an easy answer. This was the question “whether the Nollan/Dolan test [i.e. the test that governs the Takings Clause inquiry in this context] operates differently when an alleged taking affects a ‘class of properties’ rather than ‘a particular development.’” The easy answer to this question, implied Gorsuch, was “no.”

If this question was so easy, why didn’t the Court address it? It appears that at least three Justices have a different view than Gorsuch. Kavanaugh (joined by Kagan and Jackson) concurred “to underscore that the Court has not previously decided—and today explicitly declines to decide—whether ‘a permit condition imposed on a class of properties must be tailored with the same degree of specificity as a permit condition that targets a particular development.’” The reason to underscore the limited nature of the Court’s decision, presumably, is to prevent others from reading that opinion to have resolved the issue.

From this brief description of the scope of the opinions, the question naturally arises how the Court decided to calibrate the breadth or narrowness of this opinion. The answer to this question is not something that one tries to answer as a matter of constitutional interpretation. The answer turns instead on the nature of the judicial function within the particular place in the judicial hierarchy occupied by the Supreme Court of the United States, together with a justice’s understanding of how best to carry out that function as a single individual on a multimember appellate court with jurisdiction that is both limited and discretionary. To the extent that these kinds of understanding are informed by a distinctive theory, that would be a theory of adjudication rather than a theory of interpretation or law.

Pope Francis’s Remarks to International Federation of Catholic Universities

On January 19, 2024, Pope Francis was scheduled to deliver “a lengthy address” to the International Federation of Catholic Universities. Because he was a “bit short of breath,” he instead got right to the point of what he was going to say and then let his prepared text speak for itself. Here’s what he said viva voce:

I was planning to deliver a lengthy address, but I am a bit short of breath; as you can see, this cold is not going away! I am giving you the text so that you can read it for yourselves. I thank all of you for this meeting and for all the good that our Catholic universities do by communicating knowledge, the word of God and an authentic humanism. Never tire of persevering in the splendid mission of Catholic universities. It is not their confessional status that gives them their identity: that is one aspect, but not the only one. It is perhaps that clear humanism which makes people realize that human beings have values and that these need to be respected. This is perhaps the finest and greatest thing about your universities. Thank you very much.