Fr. Greg Kalscheur offers this response to our comments on his new article, John Paul II, John Courtney Murray, and the Relationship Between Civil Law and Moral Law: A Constructive Proposal for Contemporary American Pluralism (see posts below):
Thanks to Rob and Rick for their helpful questions and comments on my article. Without trying to respond in detail to all the points they've raised, I do want to try to offer a few responsive thoughts.
First, a comment on Rob's suggestion that the approach I've outlined might feed into positivism more than I would admit. I actually see my project as solidly within the natural law tradition. John Finnis in Natural Law and Natural Right, for example, argues that the "central jurisprudential concern" of the natural law tradition lies in its desire to understand the relationship between positive law and moral principles. Natural law theory needs to take seriously human law in all its "positivity"; in fact, natural law theorizing seeks to explore the ways in which "sound laws, in all their positivity and mutability" are derived from moral principles (351). A central natural law claim is that the act of positing laws is "an act which can and should be guided by 'moral' principles and rules." (290) In other words, in considering whether the civil law conforms to the moral law, we can't just look to see whether the positive law embodies a given moral principle or prohibition; the moral principles governing good lawmaking are an integral part of the moral law to which the civil law must conform, and those moral principles may sometimes lead us to conclude that the civil law ought not incorporate a particular moral prohibition.
How much consent or consensus is necessary to support good lawmaking? I think that's going to depend on a range of factors, but the primary criterion has to be enough consent or consensus so that the law can be effective in achieving its ends with respect to actually promoting the common good. This probably isn't a satisfying answer, but I think Rob's image of a "sliding scale of consent based on prudential considerations" is the best way to think about it.
How that sliding scale might operate in different cases is relevant to the example of anti-discrimination laws that both Rob and Rick bring up. In his discussion of contraception and the limits of law, for example, Murray drew a contrast between the area of sexual morality, where he thought the pedagogical value of the law was pretty limited, and the area of racial equality. With respect to race, Murray thought that the law had a legitimate role to play in getting "ahead" of the public conscience. For him, the difference seemed to lie in the fact that racial equality concerned issues of justice and constitutional right that are not present in the case of contraception.
Like racial equality, abortion is a matter of public morality involving issues of justice and constitutional right. So shouldn't the law be able to get ahead of the public conscience in the context of abortion? There may be relevant differences between anti-discrimination laws and prohibitions of abortion. Even though anti-discrimination laws in the area of race and gender were initially controversial, and the extension of anti-discrimination norms into new areas continues to be controversial, I think there was and is a basic moral consensus in American society, reflected in the constitutional text of the equal protection clause, that human beings should enjoy equality under the law. Even though controversial in many places when civil rights laws were first enacted (and even though what "equality" means in various contexts continues to be controversial), there is a basic moral consensus on the underlying value, and the law is calling people to be faithful to that value. The law can effectively take the lead in educating resistant areas of society because there is basic agreement on the underlying value. Perhaps the moral aspirations of anti-discrimination law can be higher because they attempt to build on moral aspirations that already have a significant social and constitutional foundation. With respect to abortion, while all might agree that there is a basic moral consensus around the fundamental human right to life, whether or not (or at what point) the unborn are entitled to that protection remains the deeply contested moral issue in our society. The law may not be able effectively to call people to be faithful to the correct understanding of the answer to that moral question through a legal prohibition until there is more consensus. Pedagogical means other than legal prohibitions may have to be given priority as the most effective ways to clarify the public conscience on this issue.
I think Rick is right to call attention to the tension between Murray's insistence on the minimal moral aspirations of the law and Kaveny's more expansive view of the Thomistic pedagogical function of the law. As Rick suggests, I think these views have a relationship of complementary tension, not contradiction. Murray's writing tended to focus on legal prohibitions, so it might make sense to characterize his position as one that stresses the minimal moral aspirations of the criminal law, or the law in prohibitive mode. Kaveny's work provides an essential corrective and supplement to Murray's more limited view of the law. As Kaveny's work clearly shows, legal coercion may have a limited role in education to virtue, but law is more than police officer working through restraint and coercion. Positive law always includes a pedagogical component, and the legal structure as a whole has a role to play in expressing support for life and providing support for the virtues that sustain a culture of life.
Finally, a comment on Rick's concern about whether or not I subscribe to the (discredited) view that insists on non-religious, liberal public reason as a matter of political morality and rationality. Murray's work can be read with a Rawlsian public reason slant (see Leslie Griffin's interesting article, Good Catholics Should Be Rawlsian Liberals, 5 Southern California Interdisciplinary Law Journal 297 (1997), but I think my own conclusions run in the same vein as Michael Perry's. In order to be heard in ways that will actually help to shape the public conscience, how the religious voice participates in public discourse is important. Perry is right, I think, to draw on the work of David Hollenbach and David Tracy in arguing that religious symbols and concepts can possess insights and revelatory power that might illuminate experience in an accessible and intelligible way, even for those not sharing a religious faith commitment, through a public dialogue of mutual listening and speaking. My own sense is that the religious voice will be most effective in public dialogue when it flows from an openness to learning as well as teaching. Bryan Hehir's recent article in Church is also very helpful on this question of how the Church's moral vision can most effectively be brought into dialogue with the culture, especially in its discussion of the differing virtues of a pedagogical stance and a more prophetic stance. I wouldn't equate public accessibility and intelligibility with a Rawlsian understanding of public reason. Instead, what I'm calling for is a mode of public discourse that strives to invite people to a shared moral vision through dialogue, rather than a style that asserts we are in possession of a truth that ought to be enforced, even when others are unable to see that truth.
Thanks again to Rob and Rick for very helpful comments that will keep me thinking about all of this.
Sunday, June 6, 2004
I've read Fr. Greg Kalscheur's paper (see Rick's link to the paper below) and highly recommend it to anyone interested in the sort of conversations occurring on this weblog. Since Fr. Kalscheur is tackling the fundamental stance of Catholicism toward the governing legal order, he is by necessity proceeding at a fairly high level of generality. Readers of his analysis of John Courtney Murray, for example, could find support for any range of positions on the hot-button "culture war" issues of the day, depending on their ideological inclinations coming in. That said, Fr. Kalscheur ably makes the case that these issues should be engaged primarily by persuading our neighbors of the truth of our moral claims, rather than convincing legislators to impose our moral claims on the neighbors as if they were undeniably true; he notes that "for law to be effective as a moral guide, some level of consent as to the goodness of the law must be obtained."
I am largely sympathetic with this approach, but I'm wondering if it feeds into the positivist line of legal reasoning more than Fr. Kalscheur admits. If the moral law is to be incorporated into the civil law only where there is sufficient consent as to the law's morality, what non-pedagogical role is the moral law really playing? In other words, if a law has been enacted in a democracy, we can presume that there is a certain level of consent as to the law's morality. If a law is enacted based on an erroneous understanding of the moral law, but the law cannot be corrected until there is sufficient consent that the correction accurately reflects the moral law, it seems that the function of the moral law is only pedagogical.
Further, Fr. Kalscheur takes for granted that the faith community will adhere to the moral law; the only question is whether they subject the surrounding society to the moral law. I'm not sure if the premise can be taken for granted any longer -- that is, it seems to me that much of the faith community's engagement with the legal order will by necessity be focused on ensuring its autonomy to abide by the moral law. In this sense, appealing to the hearts and minds of our fellow citizens will not always be sufficient. Witness what happened in California, where the legislature rejected the Church's reasoned, publicly accessible argument as to why Catholic Charities should not be forced to provide contraceptives to its employees. We are now left not with the question of whether the Church can or should enforce the moral law on the rest of society, but how it came to pass that the Church is no longer permitted to obey the moral law itself. As individualism and consumerism increasingly become enforced collectively in American law, I believe there will be less hand-wringing over whether the Church is prudent to seek to impose moral truth claims through the law, and more focus on making claims to autonomy through the law. Pessimistic as it sounds, we may be seeing more defense, less offense.
Finally, in response to Rick's comment (below) that Fr. Kalscheur's approach seems to contemplate at least some hesitation before advocating anti-discrimination laws, for example, I agree that pluralism cuts a broad, bipartisan swath. Morally laden visions of the good can never be jettisoned from the collective articulation of binding norms of conduct; we just tend to think of certain background moral claims as amoral because they are so widely accepted and unquestioned. Anti-discrimination laws are based on the moral claim that individuals should not be excluded from participating in society based on characteristics like race, gender, etc. This is a fairly uncontroversial proposition in modern American society, and so it meets Fr. Murray's (and presumably Fr. Kalscheur's) consent-based criterion of melding the moral law with the civil law. At the time the initial anti-discrimination laws were passed, though, I'm not sure if the requisite consent was there, in which case, I'd be interested in Fr. Kalscheur's answer. The answer is undoubtedly wrapped up with the level of consent that is needed, and on that I'm unclear: Is it a bare majority (which would seem to suggest that if we democractically can get a provision of the moral law enacted into the civil law, that's enough) something more (which may mean that the criminalization of abortion is off-limits), or something less (which would basically open up all of the "culture war" issues to legislative or judicial action)? Or is it a sliding scale of consent based on other prudential considerations?
In any event, Fr. Kalscheur's paper gives us a lot to wrestle with and discuss -- I welcome others' views.
Rob
Friday, June 4, 2004
Once again I'm struck by the stark difference in the public expression of religious sentiment in Europe and the United States. The democractically elected heads of state in Europe have repeatedly rejected the Vatican's requests to include a descriptive reference to the continent's Christian heritage in the new EU Constitution. It is obvious that those heads of state would be subject to immediate recall votes if they took that stance over here, as evidenced by the public outrage over Los Angeles County's decision to remove a barely visible cross from the county seal in the face of a (groundless, in my view) lawsuit threat from the ACLU. Of course, expecting countries like France to allow the collective expression of a particular religion's positive contribution to history may be a pipe dream, since the French won't even allow individual students to express a particular religion's contribution to the make-up of their own identities.
Rob
Thursday, June 3, 2004
The project American Catholics in the Public Square has produced a new collection of essays, American Catholics, American Culture: Tradition and Resistance. The opening essay by John McGreevey concludes with two lessons drawn from Catholicism's history of civic engagement in the United States:
The first lesson bears directly on the question Steve asked as to whether "any theory of constitutional interpretation that validates Roe v. Wade constitutes material cooperation with evil." McGreevey cautions that "Catholics eager to engage the issues of the day must not reflexively dismiss reforms or programs that seem to spring from suspicious sources. The anti-Catholicism of many American abolitionists, precisely because they held views about individual autonomy antithetical to powerful Catholic traditions, was real. But those same abolitionists also understood the inhumanity of slavery more profoundly than all but a few Catholics." Where possible, our criticism of the validity of political or legal theories must be a separate endeavor from our responses to the particular problematic (or noble) practices the theories are used to justify.
The second lesson highlights a primary source of the discomfort that many of us have with the bishops' pronouncements on pro-choice politicians and communion. McGreevey argues that "[t]he most effective Catholic witness to Christian values in the public sphere has come through placing single issues in a more systematic framework. In this regard I find Cardinal Bernadin's 'consistent ethic of life' compelling, and not, as is frequently alleged, a way for liberal Catholics to dodge the wrenching issue of abortion. Instead, such a framework -- and again the contrast with discussion about birth control is stark -- may ultimately persuade a vast, skeptical and largely non-Catholic public that the Catholic social and sexual ethic does not rest upon opposition to women's equality."
By appearing to elevate abortion as the singular determinant of an individual's standing within the faith community, the bishops leave themselves wide open to charges of crass election-year politics. I realize that the issue has in many ways been forced upon them given the religious identity and public positions of the election-year candidates, but the middle way alluded to by Michael may have been more within reach if the bishops had responded to the predicament with a broader acknowledgment and invocation of relevant Church teaching; this may have minimized the rampant cynicism that has greeted the bishops' narrowly focused and admittedly GOP-friendly pronouncements.
Rob
Wednesday, June 2, 2004
As the product of an evangelical upbringing, I took interest in the New York Times catching up to the increasingly harmonious Catholic-evangelical relationship. The Times' attention is triggered by evangelical support for the conservative Catholic line on the communion controversy, which the paper attributes to a broader cultural alliance in opposition to rampant individualism. You can read the article here. Christianity Today, the leading magazine of evangelicalism, offers an intriguing response to the Times' article here. Not surprisingly, the periodicals offer different takes on whether doctrinal or culture war developments are driving the rapprochement. What's not in dispute is that relationship promises to shape religion's engagement with American culture for years to come.
Rob
Friday, May 28, 2004
I'm generally a proponent of a "marketplace of ideas" approach when it comes to the moral shaping of a secular, pluralist society. That is, we should hesitate before bringing the trump of state power to bear on contested visions of the good, instead encouraging, by word and example, our fellow citizens to cultivate moral virtues. This approach presumes, however, that modern Americans are open to outside moral influence. I'm wondering if that even holds true for Catholics anymore. A just-released survey shows that 66 percent of American Catholics say the bishops should not publicly pressure Catholic lawmakers on the abortion issue, and a whopping 87 percent say the bishops' comments on abortion would have no influence on their ultimate voting decision. (When non-Catholics are included, the latter response falls to 85%, so I guess the bishops carry more authority among non-Catholics these days!)
From teaching ethics to law students, I know that the sin of all sins today is to purport to sit in judgment of someone else, so I could have guessed that the poll numbers would be trending in the direction of our unique brand of American hyper-individualism on all things moral, but the numbers themselves are still surprising.
Rob
Wednesday, May 26, 2004
For those interested in subsidiarity, I have just posted in the sidebar an article I wrote at the outset of the Bush Administration titled Subsidiarity as a Principle of Governance: Beyond Devolution. The article arose out of my discomfort with the frequent and (in my view) one-dimensional invocation of subsidiarity by purveyors of "compassionate conservatism." I argued that subsidiarity's call for local bodies to take primary responsibilty for social problems presumes that such bodies will be equipped with the necessary resources, financial and otherwise, to carry out their responsibilities effectively, and that higher bodies, especially the federal government, will need to play a significant role not only in the process of empowerment, but will bear ongoing responsibility in those areas where the necessary empowerment is impractical. In several policy areas, I identified a disconnect between subsidiarity's premise and the Bush Administration's reflexively devolutionary stance toward government power. Certainly the landscape of government power, including the power sought and wielded by the Bush Administration, has changed remarkably since 9/11, but the basic thrust of the article remains valid, in my estimation.
Rob
