This article is the first essay of a series on the interplay between dominant thought and Latino issues. It focuses on critical social justice through an exploration of the phenomenon of the sixteenth century apparition of Our Lady of Guadalupe to an Amerindian, Juan Diego. It is dedicated to la Virgencita, and its goals are to elucidate some personal challenges for all professionals, especially those who are “other,” through a critical analysis of the story of the dark skinned Madonna; to draw an understanding of how dominance affects society; and to suggest conclusions concerning the role of a law school wishing to be friendly to Latinas/os, and/or one dedicated to Mary.

There are three popular schools of thought about the origins of the phenomena of the Virgen de Guadalupe. One is that the autochthonous people invented her in order to facilitate the continuation of their devotion to the goddess Tonantzín. Another is that the Spaniards invented her in order to reach the autochthonous population who had largely resisted conversion before the apparition.

It is both an honor and a pleasure to be asked to participate in this festschrift for my friend and colleague, Robert E. Rodes, Jr. Since I joined the Notre Dame Law School faculty in 1998, Bob has been an inspiration to me in so many different ways, and in my opinion, he exemplifies the best tradition of an American man of letters. It is a rare American law school that can boast a faculty member whose interests range from medieval French and English law to modern civil procedure, legal ethics, poverty law and liberation theology. But we at Notre Dame have all this in Bob, and it is through these wide-ranging interests that I found not only intellectual common ground with him, but also a mentor and a friend.

It just so happens that Bob and I received our undergraduate and law degrees from the same institutions, Brown University and Harvard Law School. Although our experiences at both places were separated by almost forty years, I like to think that our shared educational provenance links us in a special way. In addition, for the last five years or so, we have belonged to the same parish and, more often than not, we attend the same mass. This has offered our professional relationship the wonderful counterpoise of the fellowship of our parish community, and it has given me and my wife, Robin, a chance to spend more time with Bob's delightful wife Jeanne, to whom he has been married over fifty years.

In his essay, Professor Bassett traces the roots of the “myth of the nomad,” a myth which was used to justify the dispossession and destruction of Native Americans by colonial settlers. Bassett's primary focus is on a careful exposition of the sources and uses of the myth. The historical evidence he presents is persuasive and interesting, and his analysis is often thought-provoking.

I find myself, however, in some disagreement with Bassett over the function this type of work serves. While Bassett recognizes that “[w]e are all creators of myths,” he insists that we should “bring to light” the myths in the law and expose their “insidious uses[s].” As Bassett observes, the first-year property course offers numerous opportunities for the unmasking of such myths. Bassett seems to suggest that we view his fascinating essay as one such attempt to “demythologize the law.”

It is not possible, nor would it be desirable, to “demythologize” the law. The law is constructed upon, and often even constituted by, myths. The effort to eliminate those myths would produce legal concepts that were far less human, and probably no more humane. Our task, as both teachers and scholars, should be to recognize and evaluate the myths we use, but not necessarily to abandon them. Bassett's essay offers a fine beginning for this project of understanding.

On January 5, 2006, the American Association of Law Schools Section on Professional Responsibility hosted a section meeting on the Professional Responsibility and the Religious Traditions. The purpose of the meeting was to introduce law professors to a deeper understanding of the influence of religious traditions on the shaping of the modern understanding of the role of the lawyer in social life, their viability as traditions for critique of professional norms and practices, and the expectations these traditions set for the ethical behavior of lawyers, particularly those who come out of these traditions.

The conference began with the assumption that, before secular rules of professional responsibility came to regulate American lawyers, their religious traditions provided a rich body of narratives, values and rules about the nature of the lawyer's calling, his or her role in society, and expectations for ethical conduct. The organizing assumption of the program was that these traditions of professional responsibility, while they share many common assumptions, also interpret the lawyer's role and responsibilities in distinctive ways.

Icons of river frost
weep in the bleak fields
of the Republic.
Ghost Dance songs sweep the plains;
the eucharistic moon wanes.
All the trees are bare.

Judge John T. Noonan, Jr., the honoree of this festschrift, is a major figure in both legal studies and religious studies, and so it is especially fitting that the Journal of Law and Religion publish these essays in his honor. This essay will serve as an introduction to Noonan's works and to the essays collected herewith.

John Noonan's activities in connection with secular law are fairly well known. He has served with distinction as United States Circuit Judge on the Court of Appeals for the Ninth Circuit since 1985. In addition to serving on the bench, he has taught for nearly thirty years at Boalt Hall, the law school at the University of California at Berkeley, and twice been a visiting scholar at the Institute for Advanced Study in Princeton. Earlier he was Professor of Law at the University of Notre Dame Law School, and throughout his career he has served as a visiting professor at other distinguished law schools including Stanford and Harvard, his alma mater.

The Article 9 religious freedom jurisprudence of the European Court of Human Rights most basically concerns the question of religious pluralism. The “principle of pluralism seems to be the main—the core—principle” guiding the Court's religious freedom jurisprudence, argues one of the Court's judges. Assessing the Court's work in the area of religious freedom therefore requires considering its treatment of pluralism, which is the concept most often employed to interpret Article 9 of the European Convention on Human Rights. The Court's approach to religious pluralism is still heavily indebted to the decision in Kokkinakis v. Greece, a 1993 case involving a Jehovah's Witness who had been repeatedly arrested and jailed for violating Greece's prohibition on proselytism. In the majority opinion finding that Mr. Kokkinakis's Article 9 rights had been violated, the Court writes the following:

In affirming that the First Amendment Religion Clauses are one of America's great contributions to Western civilization, the Williamsburg Charter appropriately looks to our nation's rich heritage of religious liberty. Like the Declaration of Independence, the Charter is a consensus document that recognizes human dignity and the importance of moral values that transcend the state. It eloquently invokes many of the historic principles that influenced the Founders in creating the republic, including inalienable rights, liberty of conscience, government by popular consent, the danger of centralized governmental power, the role of religion as a source of civic virtue, and the evils resulting from an established church. The Charter also emphasizes the close connection between civil and religious liberty.