Smith, Posner and More

Have any of my co-blogistas read Steven D. Smith's "Law's Quandry?" I hear it's terrific, but have only seen a fairly brief note on Larry Solum's blog. For any one who has read it, I'd be interested in your thoughts on how it might relate to our evolving conception of a Catholic legal theory. Another question along those lines: Richard Posner is guest blogging over at Brian Leiter's blog. He has a very interesting first post on faith-based discourse in the supposedly secular polity in which he takes on the Rawlsian exclusion of such discourse on the ground that democracy is not an academic seminar in which only "public" reasons may be asserted: it is a system through which the public can express its preferences to and through its elected representatives. So if religious sentiments and arguments are dominant in the electorate, there is no principled basis for excluding them in public debates and decisionmaking. A typically pragmatic argument by Posner. Brian's post introducing Posner is also very good, succinctly analyzing Posner's critique of academic philosophers such as Rawls and Dworkin on pragmatic, skeptical grounds (see his Holmes Lectures from a few years ago). What, then, would Posner make of our project? I think there is a fundamental conflict between law & economics (pace Steve Bainbridge), whether the Posnerian pragmatic version or the many utilitarian versions, because the basic assumption is that meditation upon the nature of the good is a fool's errand, and certainly unrelated to the way people actually behave, and that the best we can do is maximize welfare, ie peoples' preferences. This seems to me fundamentally at odds with the Artistotelian/Aquinean tradition of which both Catholic moral theology and Catholic Social Thought are a part, and on which we must draw in formulating a Catholic understanding of law. Forgive my amateur philosophical ramblings, but these questions strike me as relevant to this blog's central project.

Hope everyone had a merry Christmas!

-Mark