Beyond the Rules

What do debates over the Church teaching on the death penalty, the communion controversy, and legal ethics students struggling with the implications of Enron all have in common?

Last night here at Fordham as part of our Catholic Lawyers' Program we kicked off our three-part series “Catholics & the Death Penalty” series with a discussion about the lawyers' roles - featuring Kings County DA Charles J. Hynes and the New York Capital Defender, Kevin Doyle. As Hynes has in some cases sought the death penalty, and Doyle is an outspoken opponent – and both are devoutly Catholic - I had anticipated something of a debate. Instead, they agreed, in large part, that the death penalty is bad policy and a waste of resources. Where they differed – and this was fascinating – was in how they thought about religion’s application to their professional life. Hynes’ principle reason for not applying recent Church reflections on the death penalty? The Pope’s statements haven’t been clear enough – they leave, in some sense, a “loophole” for “rare” cases. He’s waiting for a clear pronouncement of a hard and fast rule.

Similarly, I think much of the communion controversy debates have had a similar focus – on the “floor” of what crosses the line into mortal sin. Even those who respond with “single issue” concerns (eg, why peg just abortion?) are also prone to this – the focus is still on defining the negative rules.

All of this brought me back to conversations two years ago with my large legal ethics class. As they attempted to sort through the implications of Enron, what struck me was their focus on the line which is not to be crossed – and their apparent sense that as advocates they have an obligation to dance as close as possible to that line so as to obtain the maximum benefit for their clients.

Thinking about the task before us – that of developing “Catholic legal theory” – I used to think that the linchpin was simply to get folks to become familiar with the documents of Catholic Social Thought, and the implications would be evident, or would at least get a conversation going. Now I’m beginning to think that the even more challenging task is to get folks to move beyond a negative-rule-oriented lens which is focused largely on how to avoid sin (or a violation of the rules) toward some appreciation of the much larger, more positive, and certainly more constructive vision of how we can cooperate with God’s plans for humanity.

The task is formidable – and made harder by the fact that our case law and our culture are prone to define religion as another set of rule-based obligations to fulfill. (eg, take a look at the fascinating Second Circuit opinion in Seeger, 326 F.2d 846 – defining religion as “bowing to external commands”).

This is not to say that rules are not important, and that the Bishops are not right to point out what does cross the line into sinful material cooperation with evil. But if the general conversation stays there, don’t we risk losing sight of the much larger endeavor to which our faith calls us? If we’re constantly looking at the “floor” we may never even glimpse that “heaven and earth are full of your glory,” as we say in every mass.

Amy