Mirror of Justice

Kevin Lee of Ave Maria sent me this thoughtful comment on our reading list question. I think he may have got me wrong on the distinction I made between the natural law focus of the Ave list and the Villanova (or my) emphasis on CST. I did not mean to suggest that the natural law emphasis is inappropriate, misguided or less than central. It is certainly something we intend to develop here at Villanova. I was simply struck by the absence of CST texts in the previous reading list. The relevance of such texts to a Catholic understanding of law strikes me as hard to deny. As a practical matter, furthermore, they provide a very direct and focused approach to a whole host of policy and legal questions. I thus certainly agree with Kevin that CST needs to be understood in the context of the magisterial teaching; but would he agree that CST is an essential part (or even an important part) of a Catholic legal education?

Kevin's comments follow from here:

I read with interest the lists of readings that have been posted. Thanks to all of you for your thoughtful work. Personally, I resist making lists like this because I fear that they can promote pride (if not dissembling) on the part of the lister, and triumphfulism on the part of the reader who, having worked through the list, feels inclined to consider himself a master of the subject. Nonetheless, I thought a few comments might be warranted.

1. I think Mark may be confused about the differences between Ave Maria’s and Villanova’s approaches. At Ave Maria, we (or rather I, since I can only speak for myself) focus on natural law in the fullness of the tradition. Since I agree with Mark that natural law cannot stand apart from the context of the fullness of the Catholic intellectual tradition, I think he may misunderstand our (my) approach. Let me explain my way of approaching natural law thinking.

As I see it, natural law is best understood as a particular kind of moral theory: one that locates the difference between moral and immoral actions, persons, or character in principles discerned to be immanent in nature. On this description, there are many forms of natural law, from Cicero’s natural law writings to some modern moral theorists who attempt to validate their claims through moral psychology.

Catholic natural law holds an important place in the Catholic intellectual tradition. It is distinguished by its relationship to Scripture, in particular to Exodus 3:14 (where God names himself to Moses as the God of Being). In The Spirit of Medieval Philosophy, Etienne Gilson showed convincingly that what has been distinctive about Catholic philosophy has been its concern with Being in light of this Scriptural verse. The resulting form of philosophical enquiry is known as metaphysics or ontology. During the medieval period, Catholic natural law philosophy sought to explore the moral meaning immanent in Being understood as the creation of a sovereign God. This is what John Paul II had in mind when he wrote: "There is need of a truly metaphysical philosophy of nature, able to go beyond empirical evidence in such a way that seeking the truth, it arrives at something absolute, ultimate and grounded" (Fides et Ratio 83).

This distinguishes Catholic natural law thinking from both modern philosophy and much of liberal Protestant thought because these related developments have tended to be much more skeptical about the ability to discern valid moral principles immanent in nature. Protestants and moderns share a common heritage in thinkers like Duns Scotus, who argued that God too was a part of Being—another being among many, instead of the source and sustainer of Being. This was a problem because it made God an object in nature that could be studied through reason by the human mind, like any other object. Many philosophers concluded that moral principles could be discerned without reference to God or Scripture. Reason alone could lead to moral truth. Indeed, all moral truth could be known through an exploration of practical reason without a need for metaphysical speculation. Moral knowledge is a matter of nature alone. No grace is needed, nor is any particular conception of human nature. The problem presented to natural law theory today is finding a way to speak of metaphysics and ontology to a culture that has lost faith in human ability to know the truth of reality as such. In my work, I try to explore the resources of hermeneutical philosophy (esp. Paul Ricoeur) for the interpretive project at the root of natural law thinking.

All of these subtleties are lost on contemporary analytic legal theory. It coarsely seeks to understand the phrase "natural law" through the project of analytic jurisprudence, which is to find the divisions between law and other sorts of normative claims (esp. moral claims). Among analytic legal theorists, the phrase "natural law" is applied to any legal theory that claims that law derives its authority, at least in part, from its morality. This is a descriptive claim rather than a normative claim, and so it is not inconsistent in analytic legal theory to be both a natural law theorist and an emotivist (i.e., to argue that moral intuitions are nothing other than emotional states and therefore the difference between moral and immoral is simply a subjective preference). Although it is rare, one can hold that as a matter of fact law derives its legitimacy from subjective preferences.

I believe that a properly Catholic theory of law should be a natural law theory in both senses: it should be a legal theory that asserts that law derives its authority in part from its morality, and it should locate the source of that morality in principles immanent in Being itself. In some respects, this means that a Catholic theory of law must reject the project of analytic legal theory, since its project is to make conceptual divisions which Catholic thought finds to be more detrimental than useful. John Paul II had this in mind when he wrote: "Perspectives on life and the world, often of a scientific temper, have so proliferated that we face an increasing fragmentation of knowledge. This makes the search for meaning difficult and often fruitless." (Fides et Ratio 81). For this reason, I do not focus my writing on questioning "what is the idea of law as such?" or "what makes a legal proposition valid?" but on understanding the meaning of the rule of law in American democracy. The former questions tend to contribute to fragmenting knowledge, while the later focus moves toward an exploration of how the law, as it is promulgated and lived , is relevant to a meaningful human existence. In sum, as a Catholic legal theorist, I want to understand how Catholic teaching about Creation and Salvation shape a coherent view of the meaning and potential of the rule of law in American democracy.

In doing this sort of work, I have turned to twentieth century theology. As I see it, contemporary theology has been shaped in large degree by questioning the nature of the relation between nature and grace. Important theologians, like Henri de Lubac, Hans Urs von Balthasar, and the new Holy Father, wrestled with this issue in the first half of the twentieth century. Informed through thinkers like Karl Barth of the Lutheran convergence with National Socialism in Nazi Germany, they argued that Christian political theory needs to remain independent from nature—to accept grace as its means for maintaining a critical distance from secular political associations. It is interesting to me that none of their work was mentioned in any of the lists. Their work needs to be read today by all of us who are interested in Catholic legal education because it holds deep implications for the nature of the relation between Christ and the formal institutions of secular culture, such as the rule of law. Without such distance, the Church can become co-opted by the political Left or Right. For me, this means maintaining a broadly focused approach to natural law, fully informed and conformed to the teaching of the Church as keeper of the diakonia of truth.

If this sort of breadth is not sought at Villanova, then I must confess that I don’t really understand their approach at all. I would think that just as natural law cannot be understood without the fullness of the tradition, the Catholic Social Teaching cannot be understood apart from the whole of the magisterial teachings, of which the natural law is a part. My suspicion is that there is actually very little difference between us.

2. Next, while I agree with Mark that some books are too obviously foundational to warrant listing, it is surprising how infrequently some of them are read. Take for instance St. Augustine’s de trinitate. It is from this masterful work of Christian moral psychology that St. Thomas Aquinas quotes Augustine’s most famous natural law proclamation: "A law that is unjust seems like no law at all." How often is it read, and reread? Also, it is surprising how infrequently Scripture is cited. There are many jokes that point out that Catholics do not known the Bible, and sadly there is some truth to them. So, let's go ahead and list the ones we find most useful.

3. I would concur that Oliver O’Donovan (who is Anglican, by the way) is indeed a wonderfully stimulating writer. I read his Desire of the Nations some ten years ago, and I am now reading his latest work, The Ways of Judgment. I would recommend these over the Bonds of Imperfection, inasmuch as they present his project more systematically and in a more fully developed form. I would also recommend John Milbank’s Theology and Social Theory, which kicked off the so-called radical orthodoxy movement. It is a rich and engaging text, and Milbank is indebted to de Lubac for much of his approach. And, since we are discussing non-Catholics, I would also encourage the reading of Paul Tillich and Reinhold Neibuhr. Their work set the gold-standard for public theology in the United States during a time when Catholic intellectuals were still mostly marginalized from the mainstream. And, lastly I have to plug just about everything that my dissertation advisor, Jean Bethke Elshtain, has written. She will be giving the Gifford Lecture in Scotland this winter. The topic is sovereignty. I'm sure another insightful and wise book will result.

--Kevin Lee via Mark