Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Wednesday, August 14, 2013

On Elshtain: "Moral Anthropology, Social Ontology, and Authentic Human Freedom"

More than three years ago, I gave a paper at a conference -- one of a series exploring and celebrating the work of Jean Bethke Elshtain -- called "Public and Private:  Feminism, Marriage, and Family in Political Thought and Contemporary Life."  The paper was called "Moral Anthropology, Social Ontology, and Authentic Human Freedom."  If you are interested, I've posted it here:  Download Elshtain paper  Here are a few paragraphs:

In a short, 1999 essay – one that influenced strongly my own thinking – called “How Should We Talk?”, she suggested that the ongoing debate about the role of religion and religious believers in democratic politics should not proceed without attention to “anthropological issues” and “presuppositions.”  Unfortunately, the anthropology that “underwrite[s] modern liberal contractarianism,” she noted,is one that “sees us as essentially free standing, self-possession, self-defining, and self-naming creatures.  We relate to others to the extent it seems expedient, prudential and part of self-interest, rightly understood.  Of course, there is love and family commitment, but the tendency is either to bracket these as the exception that proves the rule or to bring the family, too, under the wings of an anthropology that distorts it profoundly.”

She developed this point – and this concern – in a review, also published in 1999, of Michael Perry’s then-recent book, The Idea of Human Rights.  Claims of, and talk about, “human rights” are, she insisted, founded necessarily on “certain anthropological presuppositions.”  Some presuppositions are capable of sustaining the human-rights project but – she warned – some might not be.

“A view of a primordially ‘free’ self haunts the modern rights project,” she wrote, contrasting that view with the one proposed in Catholic social teaching.  The latter
view sees human persons as “intrinsically, not contingently, social.  We are born to communion, to relationality. .. .  Rights . . . are lodged in an ontology of human dignity[ and this] dignity of the self cannot be dehistoricized and disembodied as separate from the experiences of human beings as essentially, not contingently, related to others.”

If we hope to understand, protect, and nurture the role, calling, rights, and dignity of women – and the family, and the political community – we must try to understand the person, who is, in Tom Shaffer’s words, “the noblest work of God—infinitely valuable, relentlessly unique, endlessly interesting.”  Like Elshtain, though, I worry that much of our legal, political, and constitutional discourse rests on a superficially appealing but incomplete and ultimately unworthy account of what it means to be human.  . . .

Today, most constitutions aim to protect authentic human freedom by “entrenching” human rights, and putting them beyond the reach of ordinary politics.  This is a good idea and a sound practice.  But it is not enough.  Human rights and human flourishing depend not only on enforceable constraints on government but also on the pluralistic structure of the social order, a structure in which, Elshtain has taught us, the family – neither entirely public nor entirely private – is both protector
and protected.

And so, it all comes together:  Law is “of, by, and for” the people – for real human persons.  The project of promoting persons’ flourishing – their real goods – will, necessarily, proceed on the basis of some assumptions – “anthropological” assumptions – about “what it means to be human”, about who and what people are and what they are made for.  The project’s chances of success are improved – this side of heaven, it can only have chances – if these assumptions are true.

One assumption that is true, and that constitution-makers (and all of us) ignore at their peril, is that persons are social and situated.  They live, thrive, and are
formed in families.  The law will, accordingly, do what it can to attend to the health of families.  In so doing, though, the law – the state –must stay its hand, and have its hand stayed.  And families (like some other forms of human association)  have a role to play – a constitutional role – and a job to do in staying, even as we should hope they might benefit from, the state’s hand.


Garnett, Rick | Permalink


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" the anthropology that “underwrite[s] modern liberal contractarianism,” she noted,is one that “sees us as essentially free standing, self-possession, self-defining, and self-naming creatures."

The "essentially" bit here is, I think, completely wrong for many of the most important versions of liberalism, including contractualist/contractarian kinds. It's certainly false for Rawls, at least in Political Liberalism and even arguably in his earlier work, and also wrong, I think, for people like Habermass. I think it's also wrong for Scanlan. I can't say for sure about people like David Gauthier, but this would also be wrong for someone like Gerald Gauss. It's also wrong for many liberals who are not contractarians (Richard Rorty, at least.) In truth, I don't see anyone for whom it's clearly a right account. So, while she might have had some good ideas, this "essentially" bit is really a straw-man.

Posted by: Matt | Aug 14, 2013 11:00:37 PM

Note: I initially posted, but have deleted, an off-the-cuff and unhelpful comment in response to Matt's comment, above. I should not have, given the hopes I have for this blog, and so I have deleted the comment.

Posted by: Rick Garnett | Aug 15, 2013 9:22:12 AM

We exist in relationship, because Love exists in relationship, and we have been created in The Image and Likeness of God.

Posted by: Nancy | Aug 15, 2013 4:29:29 PM