Kalscheur responds

Fr. Greg Kalscheur offers this response to our comments on his new article, John Paul II, John Courtney Murray, and the Relationship Between Civil Law and Moral Law: A Constructive Proposal for Contemporary American Pluralism (see posts below):

Thanks to Rob and Rick for their helpful questions and comments on my article. Without trying to respond in detail to all the points they've raised, I do want to try to offer a few responsive thoughts.

First, a comment on Rob's suggestion that the approach I've outlined might feed into positivism more than I would admit. I actually see my project as solidly within the natural law tradition. John Finnis in Natural Law and Natural Right, for example, argues that the "central jurisprudential concern" of the natural law tradition lies in its desire to understand the relationship between positive law and moral principles. Natural law theory needs to take seriously human law in all its "positivity"; in fact, natural law theorizing seeks to explore the ways in which "sound laws, in all their positivity and mutability" are derived from moral principles (351). A central natural law claim is that the act of positing laws is "an act which can and should be guided by 'moral' principles and rules." (290) In other words, in considering whether the civil law conforms to the moral law, we can't just look to see whether the positive law embodies a given moral principle or prohibition; the moral principles governing good lawmaking are an integral part of the moral law to which the civil law must conform, and those moral principles may sometimes lead us to conclude that the civil law ought not incorporate a particular moral prohibition.

How much consent or consensus is necessary to support good lawmaking? I think that's going to depend on a range of factors, but the primary criterion has to be enough consent or consensus so that the law can be effective in achieving its ends with respect to actually promoting the common good. This probably isn't a satisfying answer, but I think Rob's image of a "sliding scale of consent based on prudential considerations" is the best way to think about it.

How that sliding scale might operate in different cases is relevant to the example of anti-discrimination laws that both Rob and Rick bring up. In his discussion of contraception and the limits of law, for example, Murray drew a contrast between the area of sexual morality, where he thought the pedagogical value of the law was pretty limited, and the area of racial equality. With respect to race, Murray thought that the law had a legitimate role to play in getting "ahead" of the public conscience. For him, the difference seemed to lie in the fact that racial equality concerned issues of justice and constitutional right that are not present in the case of contraception.

Like racial equality, abortion is a matter of public morality involving issues of justice and constitutional right. So shouldn't the law be able to get ahead of the public conscience in the context of abortion? There may be relevant differences between anti-discrimination laws and prohibitions of abortion. Even though anti-discrimination laws in the area of race and gender were initially controversial, and the extension of anti-discrimination norms into new areas continues to be controversial, I think there was and is a basic moral consensus in American society, reflected in the constitutional text of the equal protection clause, that human beings should enjoy equality under the law. Even though controversial in many places when civil rights laws were first enacted (and even though what "equality" means in various contexts continues to be controversial), there is a basic moral consensus on the underlying value, and the law is calling people to be faithful to that value. The law can effectively take the lead in educating resistant areas of society because there is basic agreement on the underlying value. Perhaps the moral aspirations of anti-discrimination law can be higher because they attempt to build on moral aspirations that already have a significant social and constitutional foundation. With respect to abortion, while all might agree that there is a basic moral consensus around the fundamental human right to life, whether or not (or at what point) the unborn are entitled to that protection remains the deeply contested moral issue in our society. The law may not be able effectively to call people to be faithful to the correct understanding of the answer to that moral question through a legal prohibition until there is more consensus. Pedagogical means other than legal prohibitions may have to be given priority as the most effective ways to clarify the public conscience on this issue.

I think Rick is right to call attention to the tension between Murray's insistence on the minimal moral aspirations of the law and Kaveny's more expansive view of the Thomistic pedagogical function of the law. As Rick suggests, I think these views have a relationship of complementary tension, not contradiction. Murray's writing tended to focus on legal prohibitions, so it might make sense to characterize his position as one that stresses the minimal moral aspirations of the criminal law, or the law in prohibitive mode. Kaveny's work provides an essential corrective and supplement to Murray's more limited view of the law. As Kaveny's work clearly shows, legal coercion may have a limited role in education to virtue, but law is more than police officer working through restraint and coercion. Positive law always includes a pedagogical component, and the legal structure as a whole has a role to play in expressing support for life and providing support for the virtues that sustain a culture of life.

Finally, a comment on Rick's concern about whether or not I subscribe to the (discredited) view that insists on non-religious, liberal public reason as a matter of political morality and rationality. Murray's work can be read with a Rawlsian public reason slant (see Leslie Griffin's interesting article, Good Catholics Should Be Rawlsian Liberals, 5 Southern California Interdisciplinary Law Journal 297 (1997), but I think my own conclusions run in the same vein as Michael Perry's. In order to be heard in ways that will actually help to shape the public conscience, how the religious voice participates in public discourse is important. Perry is right, I think, to draw on the work of David Hollenbach and David Tracy in arguing that religious symbols and concepts can possess insights and revelatory power that might illuminate experience in an accessible and intelligible way, even for those not sharing a religious faith commitment, through a public dialogue of mutual listening and speaking. My own sense is that the religious voice will be most effective in public dialogue when it flows from an openness to learning as well as teaching. Bryan Hehir's recent article in Church is also very helpful on this question of how the Church's moral vision can most effectively be brought into dialogue with the culture, especially in its discussion of the differing virtues of a pedagogical stance and a more prophetic stance. I wouldn't equate public accessibility and intelligibility with a Rawlsian understanding of public reason. Instead, what I'm calling for is a mode of public discourse that strives to invite people to a shared moral vision through dialogue, rather than a style that asserts we are in possession of a truth that ought to be enforced, even when others are unable to see that truth.

Thanks again to Rob and Rick for very helpful comments that will keep me thinking about all of this.