A Reply to Rob’s “‘Powerful Lobbies’ and Natural Law”

I would like to begin by thanking Rob for his thoughtful and probing post yesterday critiquing my earlier post on Democracy and the Constitution. Moreover, I am grateful for his expression of consensus with some of the points I raised. However, Rob presented two questions with arguments that challenge claims, which I proposed, about the natural moral law and its role. In the collegial spirit of developing Catholic Legal Theory, I would like to respond to his two points in this posting.

In his first reproach, he argues that the “specter of ‘powerful lobbies’ is too frequently invoked” as a critique of “citizens in association” attempting to persuade their government of the justness of their cause so that the state may “adopt their vision of the good.” Unfortunately, web logs such as Mirror of Justice are not the best vehicle for making the detailed argument necessary to support positions on issues that are not acceptable by all. Therefore, I will do my best to offer additional justification for my critique of the efforts of “powerful lobbies.” I begin with yesterday’s first reading from the Prophet Jonah for the daily Mass. Jonah is charged by God to go and teach to the citizens of Nineveh about their wickedness. This is a task that Jonah is initially reluctant to take up. He knows he must teach and preach to show the citizens of Nineveh the distinction between good and evil, between right and wrong. The task of Jonah is also part of the commission of developing Catholic Legal Theory that can help discipline the authority of human law so that those subject to it embrace the good and avoid evil and understand the difference between what is right and what is wrong. This is easier said than done because it is important, in making these distinctions between good and evil/right and wrong, to have a clear understanding of the standard to be employed in making such determinations. Is it a purely human standard that is relied upon to make these distinctions and employ them in public life once they are identified? If so, that becomes a problem for every person and for the communities in which they exist. Society ends up with competing and conflicting subjective standards used to identify and justify what is desirable and what is not.

An illustration of this problem is found in the dicta of Justice Kennedy in his opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey: “At the heart of liberty is the right to define one’s own concept of existence, of meaning of the universe, and the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” [Casey at 851] This phrase is indicative of the difficulty that surfaces when a purely subjective standard for determining what is good and what is not regarding issues of concern to public life and the common good is followed. Rob contends that the “citizens in association” (that I termed “powerful lobbies”) are simply trying to persuade their government. I respectfully disagree that this is the objective in many cases because a demand is made that society accept and adopt their subjectively determined standard that is often an exercise of pure positivism. There is little or no objective standard by which these “citizens in association” and the rest of society determine the “concept of existence”, the “meaning of the universe”, or what “the mystery of life” is all about. This problem is intensified when competing visions of the good based on this subjective determination are in conflict and competition with one another.

The natural moral law, on the other hand, offers an important objective standard to determine what is good and what is not; to define what is right and what is not. By encouraging one to consider objectively what is right and what is wrong; what is good and what is evil, citizens and the societies have a far greater understanding of not only rights but also their corresponding duties. This synthesis of rights and responsibilities is crucial not only to developing the law but also to achieving the common good. This synthesis is absent in the subjective standard that Rob appears to be endorsing in his critique of the natural moral law. But, it is the objective standard which minimizes, and quite possibly eliminates, the conflict between competing and conflicting claims which Rob identifies as “their vision of the good.” It may be “their vision,” but it is flawed with the limitations characteristic of subjectively determined goals.

Rob’s second criticism is raised in the context of a practical application of the natural moral law in Lawrence v. Texas, which, by the way, relied, in part, on Justice Kennedy’s earlier quoted dicta from Casey. Rob appears to argue that it is not the duty of the law to determine what consenting adults may or may not do in private. But my actual point about the role of the natural moral law is not that it must declare certain private, consenting activities as crimes (although it may); rather, it must not be expected to endorse certain private, consenting activities (or unconsenting, as is the case in abortion) as lawful. Rob further notes that the natural moral law is indeterminate, at least in part, because it “does not do a whole lot to overcome the disagreement” that exists within society over issues such as abortion, homosexuality, same-sex marriage, etc. While it may not have the authority of the state to impose particular legal requirements, it retains the capacity to instruct citizens and government officials on what the state should do or refrain from doing regarding these subjects over which disagreement exists. The fact that there is disagreement should not prevent anyone, including Catholic Legal Theorists, from making their contribution to the debate over the questions of right versus wrong, good versus evil that permeate these issues. This is true persuasion and not imposition.

In contrast, the proponents of Roe, of Lawrence, of Planned Parenthood have imposed and not persuaded. It is not the natural moral law that is indeterminate; it is, rather, the subjective standard emanating from Casey that is indeterminate and will continue to foster deep divisions within society—and that is what is not “particularly helpful” in guiding our legal framework.   RJA sj