In a summer reading group in legal and political theory, my colleague Michelle Dempsey led us in a discussion of a paper by John Gardner on John Finnis on justice, which will appear in a festschrift for Finnis (co-edited by our own Robby George). Among the insights of the paper was a point brought home to me when reading Aquinas with students earlier this summer about the contrast between justice as primarily a moral virtue of persons and justice as a virtue of political institutions--the contrast between the way Aquinas works out his view of justice in the Secunda Secundae and the view taken by John Rawls at the outset of A Theory of Justice. Here's a bit from the conclusion to Gardner's paper:
Finnis stands up for the classical view that questions of justice arise first and foremost for each of us as ordinary moral agents, and only derivatively for political authorities and the like. Thus, contra Rawls, the question of what makes ‘social institutions’ just cannot be tackled without first tackling the question of what would make you or me just.
....
And yet, as Finnis also says, there may be a special connection between justice and the law, such that justice may strike us as the first virtue of the law, even though it strikes us as only one virtue among many for you and me, and perhaps not the one that we would most treasure among our friends and colleagues and travel agents and so forth. Why is a government department responsible for the workings of the legal system often called a ‘ministry of justice’? Why are law courts sometimes known as ‘courts of justice’? Why is legislation aimed at reform of the criminal process sometimes called a ‘criminal justice act’? Why not, for example, a ministry of kindness or a court of honesty or a criminal diligence act? Here is a good answer from Finnis:
[W]hether the subject-matter of [an] act of adjudication be a problem of distributive or commutative justice, the act of adjudication itself is always a matter for distributive justice. For the submission of an issue to the judge itself creates a kind of common subject-matter, the lis inter partes, which must be allocated between parties, the gain of one party being the loss of the other.
The point is that the bringing of a moral question before the courts is a way of guaranteeing its transformation into a question of justice even if there would, outside the courts, have been plenty of other (non-allocative) ways to approach it. If that is right, then we want our judges to be just people above all, even though we would not want our doctors or our social workers or our airline pilots, let alone our friends, to be just above all. I have explored this topic in considerable detail elsewhere, without at the time acknowledging, because without at the time being aware of, my debt to Finnis. His is a way of explaining, without condoning, the late twentieth-century tendency to think of justice as a topic for political and legal philosophers rather than for other moral philosophers. It allows us to see why Rawls began where he did, without agreeing that it was the best way to begin. For one may be led to imagine that justice is the first virtue of social institutions in general by taking an overly juridical view of social institutions, by thinking of society as a big law court and the rest of us as parties litigating for our fair shares of some social booty. Finnis does not make this mistake. But he certainly does help us to see how others come to do so.
My first time eating at a Chick-fil-A was back in the mid-90s when the chain opened a restaurant on the Harvard campus. (I'm guessing that wouldn't happen today.) I'm not willing to drive far enough to eat at one on August 1 in support of Mike Huckabee's "Chick-fil-A Day," but I do support the sentiment. It's OK for business owners and executives to have different views on a whole range of issues, including marriage, and for those views to be reflected in a company's marketplace identity. Let's not exaggerate the marketplace identity that Chick-fil-A is trying to cultivate, though.
Even Dana Milbank, while trying to take an "above the fray" tone in this op-ed for the Washington Post, gets it wrong. Milbank quotes from the controversial interview that the restaurant's president, Dan Cathy, gave to the Baptist Recorder. Cathy said:
“We are very much supportive of the family — the biblical definition of the family unit. We are a family-owned business, a family-led business, and we are married to our first wives.”
According to Milbank, "this implied that gay people (not to mention divorced people) had no business eating at Chick-fil-A."
Wait a second. How does expressing support for the traditional family imply that members of non-traditional families have no business doing business with Chick-fil-A? The very next sentence from Cathy, omitted by Milbank, was "We give God thanks for that." This doesn't sound like he's about to hang an "intact first marriages only" sign on the restaurant window; it sounds like an authentic expression of values in a spirit of thanksgiving.
I'm on record as supporting a morally diverse corporate landscape, and this is a great example of that. There is a price to pay, of course, and Chick-fil-A has to count the cost. (Some of the costs now being inflicted on the company can only be described as both absurd and ominous.) If folks want to boycott the restaurant, that's fine and in keeping with a time-honored American tradition. But let's not pretend that Chick-fil-A is out to divide and demonize its customers.
UPDATE: The folks at Get Religion weigh in on the media coverage.
From Steven Smith, at the CLR Forum blog:
We’ve been discussing on this blog the prospects for religious freedom, and factors that may affect those prospects. Here’s one factor that we haven’t really mentioned, but that I think will be crucial: the church. The fortunes of religious freedom, I would argue, have always been connected in close if complicated ways to the fortunes of the church. And this connection is likely to continue.
Indeed.
Today is the anniversary of Pope Paul VI's encyclical letter, Humanae vitae, which is dated July 25, 1968. Here's a bit from my colleague John Finnis's review of the encyclical ("Natural Law in Humanae Vitae," 84 LQR 467 (1968)):
“Philosophy cannot compel any love, but it can help to uncover the ultimate sources of significance of every man’s action, and to present these sources in a truer light, hoping that love will follow light. This, for the classical exponents of natural law, is the function of rational discussion, in which the participants are as ready to listen and meditate as to speak.”
Here is a link to a page the USCCB put together on the 40th anniversary, which includes some links to articles, etc. Here is the USCCB's statement on the occasion of the 25th anniversary. And, here is a pastoral letter that then-Bishop of Denver Charles Chaput did, on the 30th anniversary. A quote from that letter:
[I]n presenting the nature of Christian marriage to a new generation, we need to
articulate its fulfilling satisfactions at least as well as its duties. The
Catholic attitude toward sexuality is anything but puritanical, repressive or
anti-carnal. God created the world and fashioned the human person in His own
image. Therefore the body is good. In fact, it's often been a source of great
humor for me to listen incognito as people simultaneously complain about the
alleged "bottled-up sexuality" of Catholic moral doctrine, and the size of many
good Catholic families. (From where, one might ask, do they think the babies
come?) Catholic marriage -- exactly like Jesus Himself -- is not about scarcity
but abundance. It's not about sterility, but rather the fruitfulness which
flows from unitive, procreative love. Catholic married love always implies the
possibility of new life; and because it does, it drives out loneliness and
affirms the future. And because it affirms the future, it becomes a furnace of
hope in a world prone to despair. In effect, Catholic marriage is attractive
because it is true. It's designed for the creatures we are: persons meant for
communion. . . .
Over at Concurring Opinions, there are a couple of posts (here and here) that should interest MOJ readers. My friend John Inazu has a typically thoughtful piece in the Hastings Law Journal about Justice Ginsburg's religious freedom jurisprudence, focused on a forceful criticism of her opinion for the Court in CLS v. Martinez. The post at Concurring Opinions just prior to that is a short discussion of Justice Pierce Butler (a Catholic, as it happens) and his courageous dissent in Buck v. Bell, which provides a nice opportunity to point readers to the Vanderbilt Law Review article by former-Minnesota prof David Stras (now on the Minnesota Supreme Court) on Justice Butler's unduly neglected legacy.
