Girgis praises ND; describes his work in legal philosophy
Professor Sherif Girgis joined the faculty of Notre Dame Law School this fall as an associate professor in criminal law, jurisprudence, and religious liberty. Before coming here, he practiced law at Jones Day in D.C. and clerked for Justice Samuel Alito of the United States Supreme Court. He earned his J.D. from Yale Law School, a master’s degree in philosophy from the University of Oxford, and is completing his Ph.D. in philosophy at Princeton University, where he also did his undergraduate studies in philosophy.
He now serves as a faculty advisor for the Irish Rover, and so the Rover has the pleasure of introducing Professor Girgis to the broader Notre Dame community. This interview has been edited for length and clarity.
Rover: Professor Girgis, we’re very glad you’ve joined us at Notre Dame. What is so appealing about Notre Dame and its law school?
Girgis: It’s very hard to find a school that combines its level of excellence and international reputation with its level of Catholicism. Neither is perfect, but it’s an amazing degree of combination of both. That makes a difference not just for the Catholics, but for everybody who benefits from the Catholic atmosphere and ethos, and it also means that there’s no sense in which you’re in a ghetto or sheltered from a wide range of ideas. You are getting a very rigorous, serious, challenging education and also the ability to develop the Catholic intellectual tradition together with people who you’re not just fighting over first premises with all the time.
The Law School is a great microcosm of this. It’s very highly regarded; it has one of the best faculties. It is also probably the happiest law school I’ve ever come across. Dean Cole, when he was selling me on the school said, “I’ve seen law schools where everybody agrees with each other, but hates each other. And at this institution, at this law school, people disagree with each other, but love each other.” So, he’s saying there’s a real intellectual diversity, but there’s a real common bond as well.
The faculty socialize together, they care about each other, they raise their families together, and it’s a deeply supportive environment. It’s a place where people are happy and excited to be making a home as an institution, not trying to get out or climb higher. But it also commands the respect of its peers and even much-higher ranked institutions.
I think part of the reason it’s so good is that you have faculty here who could be at fancy Ivy League type places, and they’re here either because they’ve been discriminated against there or because they could move, but they really prefer the difference that Notre Dame and its Catholic identity make.
Rover: How do your legal and philosophical research interests integrate with each other? Or are they mostly distinct?
Girgis: There’s definitely overlap. In general, I like to work at the intersection of law and philosophy: areas where the law by its own right depends on philosophical concepts, or can fairly be developed in light of philosophical and moral reasoning. And in the areas where we turn a philosophical lens to the law itself, where we’re asking, “What is law fundamentally about? What is it for? What makes a norm a legal norm as opposed to some other kind of norm?” Those are the broad categories.
Particular areas have been religious liberty, where there’s been questions about moral justifications of giving special treatment for religion over other liberties. Criminal law relies on tons of concepts like intention and blameworthiness that moral philosophy has a lot to say about, and so some of the work has been there.
Similarly, philosophy helps us think about how we should reason about the law. So there is an ongoing debate about theories of legal interpretation: whether Catholics or natural law thinkers can be originalist and textualist, or whether those two things are in tension.
Rover: What interpretive philosophy do you espouse?
Girgis: I used to have very confident views about these issues, and then about five years ago when I started clerking, I started to wonder whether the neat theoretical categories that the debate is often conducted in are really apt.
Obviously, you have to give a moral argument for whatever theory of interpretation you think judges ought to apply. And that doesn’t necessarily mean that that theory will tell them to consult their own moral judgments in the way that a lawmaker can. You can have good natural law-based arguments for a division of labor in which judges do less consulting of the natural law than lawmakers do. That does serve real values: the natural law endorses rule of law, stability, prospectivity, settlements coordination, etc.
But where the legal sources are indeterminate, I think it makes sense to try to revert to your best understanding of the law’s aims, and, ultimately, of what would be justified aim. Because, by definition, the legal sources themselves don’t constrain the choice in those cases.
Jeff Pojanowski at Notre Dame and his co-author Kevin Walsh, in an article called “Enduring Originalism,” make a serious case for a natural law argument for originalism in our system in particular. The basic form of their argument is that natural law theory says that if you’re in a reasonably just system, you have a presumptive moral obligation to obey the positive law of that system. Our system actually has positive law on how judges should interpret statutes. And that law favors originalism, but it allows some other criteria of interpretation to come in at a certain stage.
They make a compelling argument for neither a “text-only” approach nor an absolutist approach, but a very strong presumption for following the text and history where they are determinate, and for using other tools of legal interpretation, tools that the positive law itself sanctions for use.
Rover: Thanks so much for your time. Do you have any final words for the Rover?
Girgis: It’s really important, not just for the people who agree with you, but for the people who disagree with you, that your views receive a serious hearing. You are defending the Catholic identity of Notre Dame, an act which doesn’t exclude non-Catholic faculty and students, but also makes sure that the Catholic intellectual tradition has a strong presence in the academic discussions and that the university adheres to Catholic principles.
We should not see any of that as being in tension with academic excellence, because of the points I started out with. There’s no place like Notre Dame that combines those two things as well. It’s really crucial to preserve them. And that needs to come from the faculty, from the staff, and from the administrators, but also from the students, and you guys are the frontlines of that.
Zef Crnkovich is a senior from Falls Church, Virginia, studying classics with a minor in constitutional studies. He greatly appreciates hot takes: please send them and other comments to firstname.lastname@example.org.
Photo credit: Professor Girgis lectures at a Students for Child-Oriented Policy event, November 15, 2021