Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, October 8, 2007

"Powerful Lobbies" and Natural Law

I appreciate Fr. Araujo's reminder that a just social order requires prudence not only on the part of the judiciary, but also by other government officials and private citizens.  I also agree that the courts cannot always be blamed for overreaching or social engineering since they can't simply ignore claims brought by groups who are pursuing their own social agendas.  Nevertheless, I have a couple of comments.  First, the specter of "powerful lobbies" is too frequently invoked, in my view, as an easy means of condemning instances in which citizens in association seek to persuade the legal/political authorities to adopt their vision of the good.  Often, it is true, the proposed vision of the good is grounded more in the self-interest of those doing the proposing, rather than in some more authentic attempt to cultivate the common good.  But are the citizens (and their associations) who are behind challenges to laws calling for the arrest of adults for consensual sexual conduct in the privacy of their homes really a "powerful lobby" that needs to be resisted?  Can't they just as easily be portrayed as voices for limited government and human dignity, standing up against majorities on behalf of the marginalized?  In the early part of the last century, should citizens concerned about state laws closing down Catholic schools have waited until they could convince their neighbors, one by one, that such laws are unjust, or should they have brought a constitutional claim to strike down the laws?  Do those parents, teachers, and schools fall into the category of "powerful lobbies," or are they exempt because their action is brought on behalf of the "natural moral law?"  And since few litigants believe that they are advocating against the "natural moral law," wouldn't this be the exception that ate the rule?

Second, how would the natural moral law play out in the case of Lawrence v. Texas?  It's not obvious to me why the natural moral law would support the state's efforts to criminalize sexual conduct between consenting adults in private.  At the very least, it seems highly debatable.  And that's why, in my view, invocation of the natural moral law as a guiding framework in our legal system is not particularly helpful: when all reasonable people reach agreement on its content (e.g., slavery, genocide), the natural moral law appears to reflect the conclusions we've already reached.  At times when disagreement on an issue is widespread (e.g. abortion and same-sex marriage), then the natural moral law's own indeterminacy does not do a whole lot to overcome the disagreement.  Unless we're willing to invest ultimate interpretive authority in an institution (e.g., the Church) that lies beyond the reach of majority opinion, I'm not sure what the natural moral law adds to the conversation.

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Vischer, Rob | Permalink

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