The Catholic Church claims a wide authority to make pronouncements on faith and morals, and have them respected by members of the church. The nature and extent of the respect to be accorded them is subject to considerable debate, some of it both extensive and acrimonious. It is claimed, to be sure, that certain pronouncements are infallible; if so, they are obviously beyond debate. But for most pronouncements no such claim is made. Furthermore, the question whether a given pronouncement is infallible or not is itself debatable, and can generally not be infallibly resolved.

We are confronted, therefore, with an array of assertions of varying provenance to which we are expected to give some measure of credence, even though we have no guarantee that they are true, or even that their authors are particularly well-informed. They take their authority from that of the church, which in its corporate capacity is the repository of God's Revelation, and the beneficiary of His guidance.

A people's laws are deeply imbedded in its culture. They embody its collective moral reflection, its common understanding of the terms on which human beings are to live together, its customs, its historical experience, and its aspirations for the future. It is perhaps to be expected that Americans should enshrine their constitutional documents, build courthouses like temples, deploy their laws with ruthless practicality, and not take kindly to the suggestion that their laws are less practical than they think. Or that Italians should maintain a legal system like an old palazzo, with imposing staircases you can lose your breath climbing, bizarre opening hours, a wing or two closed for restoration, and a few kindly people who will sometimes show you where the elevator or the back door is hidden.

It is the cultural range of the subject matter that makes the study of jurisprudence interesting. There are philosophies of law, some good, some bad, some indifferent, but philosophy does not exhaust the subject of jurisprudence, because major jurisprudential questions (for example, what is a corporation) are not philosophical. There are theologies of law also, but they do not exhaust the subject either. As Christopher St. Germain had a sixteenth century theologian point out to a law student, the law of God is not concerned with land titles. Granted, it would be possible to distribute land titles in such a way as to offend the law of God, but the point stands nevertheless. It would also be possible to build a theologically unacceptable house (say a firetrap), but that does not make architecture a branch of theology.

But let the brother of low degree glory in his high estate: and the rich, in that he is made low.—James 1:9-10

I am starting this paper after looking at the latest of a series of e-mails regarding people who cannot scrape up the security deposits required by the local gas company to turn their heat back on. They keep shivering in the corners of their bedrooms or burning their houses down with defective space heaters. The public agency that is supposed to relieve the poor refuses to pay security deposits, and the private charities that pay deposits are out of money. A bill that might improve matters has passed one House of the Legislature, and is about to die in a committee of the other House. I have a card on my desk from a former student I ran into the other day. She works in the field of utility regulation, and has promised to send me more e-mails on the subject. I also have a pile of student papers on whether a lawyer can encourage a client illegally in the country to marry her boyfriend in order not to be deported.

What I am trying to do with all this material is exercise a preferential option for the poor. I am working at it in a large, comfortable chair in a large, comfortable office filled with large, comfortable books, and a large—but not so comfortable—collection of loose papers. At the end of the day, I will take some of the papers home with me to my large, comfortable, and well heated house.

When I began telling my colleagues at Notre Dame that I had been invited to prepare a paper on religion and procedure, some of them said “How interesting,” and looked vague. Others, more forthright, came straight out and asked what on earth I was going to say. The reaction is understandable. Since God made everything, there is nothing that cannot be related to religion if you work at it, but procedure seems to be harder going than most things. It is all very well to talk about God ruling the world and the state exercising authority on His behalf. But God does not seem to have any procedure. It is fairly easy, if you go in for analogies of that kind, to think of God as a lawgiver, even as a judge. But to think of Him as a sheriff or a process server stretches most people's imaginations farther than they will comfortably stretch.

I first met John Noonan at a Law Review dinner when I was a year or so out of law school and he was a third year student. Chance placed us at the same table, and the conversation—naturally—proved to be more interesting than the speeches. When I came home and reported on the occasion to my wife, it developed that she was already acquainted with John Noonan. When they were teenagers, he had been a particularly suave and glamorous summer inhabitant of a beach resort where one of her friends also spent summers.

Not long after the Law Review dinner, John graduated and went to Washington, and we left Boston, first for New Jersey and then for Notre Dame. I heard nothing more of John until one day when Joe O'Meara, the formidable dean of the Notre Dame Law School, showed me an article from the 1955 volume of the Journal of Legal Education called Value References in the Teaching of Negligence. The author had looked at all the Torts casebooks he could find, and earlier editions of many of them; at all the relevant case write-ups from the Harvard Law Review and the Yale Law Journal; at a number of law school examinations; and at all the issue sheets used by Harvard's Board of Student Advisors in supervising their moot court, the Ames Competition. He had found the value concerns in great disarray, and not much relied on anyhow. It was clear that teaching about negligence involved analysis of rules and not much else. The author (of course, it was John) admitted reluctantly that neither philosophy nor theology nor social science provided any principles that would be of much use in deciding negligence cases, but he expressed a rather wistful hope that more facts might lead to a more effective application of values to these cases. “More facts” was to be a major distinguishing quality in the rest of his work.

In 1843, the Reverend Robert Baird, “an esteemed minister of the American Presbyterian Church,” sojourning seven years in Europe “for the prosecution of certain religious and philanthropic objects,” published a book for the benefit of the various Europeans who had addressed to him “innumerable inquiries … respecting his native country, and especially respecting its religious institutions.”