Friday, May 19, 2017
Earlier today, the Lumen Christi Institute hosted a planning session at Loyola University Chicago School of Law. Participants included Michael De Chevalier, Judge Tom Donnelly, Rick Garnett, Dick Helmholz, Tom Kohler, Thomas Levergood, David Lyons, Michael Moreland, Jeff Pojanowski, Adrian Vermeule, and myself. The purpose of the meeting was to begin the process of planning an ambitious project: a series of events and other gatherings aimed at building an intentional community of legal academics who have a greater knowledge of and appreciation for the Catholic intellectual tradition, and so are able to engage that tradition in their work as legal scholars.
There was a general consensus at the meeting that these readings highlight two ideas of immense importance that the Catholic intellectual tradition has to offer law toady: a correct understanding of the human person and of human reason.
To aid the discussion, I prepared a memo on the anthropological question. At Rick’s suggestion I have posted it below and hope that readers find the points made and the questions posed to be of some value.
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- “Every system of law reflects certain foundational assumptions about what it means to be human.” John J. Coughlin, O.F.M., Law and Theology: Reflections on What It Means to Be Human From a Franciscan Perspective, 74 St. John’s L. Rev. 609 (2000). Coughlin is not alone in rendering this judgment. Political liberals, such as Isaiah Berlin have likewise said with respect to liberty, that the judgment to restrict certain action “depends on how we determine good and evil, that is to say, on our moral, religious, intellectual, economic and aesthetic values; which are, in their turn, bound up with our conception of man.” Isaiah Berlin, Two Concepts of Liberty, in Isaiah Berlin, Liberty 181 (Henry Hardy, ed. 2002). Others, of course, dispute this claim, or contend that a minimalist understanding of human nature is all that law requires – what Michael Sandel derisively referred to as the “unencumbered self.” See Michael J. Sandel, Democracy’s Discontent: America in Search of a Public Philosophy 6 (1996),
- Despite whatever rhetorical gloss may accompany it, the dominant answer to the question “What does it mean to be a human being?” that underlies American law today is that man is simply a material being: one that eats, and sleeps, and copulates, and defecates. There is no “meaning” to human life or to the universe. There is no transcendence beyond this, other than the desire for “freedom” to realize one’s material desires. From this desire is derived the view that law, when it is exercised in a legitimate fashion, is solely designed to enhance, or secure the fulfillment of man’s material needs and desires. The question of the reality of human freedom and its relationship to law is in fact glossed over. Freedom is simply assumed to exist, and the implications of a thorough-going materialism are largely ignored.
- In God, Philosophy, Universities: A Selective History of the Catholic Intellectual Tradition (2009), Alasdair MacIntyre writes: “One of the tasks of Catholic philosophers now, therefore, has to be that of following the injunction of John Paul II in Fides et Ratio to do philosophy in such a way as to address the deeper human concerns that underline its basic problems, without sacrificing rigor or depth” (p.176). In Fides et Ratio John Paul II argues that the contemporary project of philosophy is to “verify the human capacity to know the truth, to come to a knowledge which can reach objective truth by means of an adaequatio rei et intellectus to which the Scholastic Doctors referred” (FR ¶ 82). He also stresses “the need for a philosophy of genuinely metaphysical range, capable, that is, of transcending empirical data in order to attain something absolute, ultimate, and foundational in its search for truth” (FR ¶ 83).
MacIntyre maintains that Catholic philosophy must respond to the Nietzschean claim that all uses of philosophical argument and the conclusions reached “are unrecognized expressions of and masks concealing a will to power” (p. 177). An adequate response to this charge must give “an account of their philosophical arguments and conclusions that warrants the claim that they have sufficiently good reasons for advancing those arguments and defending those conclusions” (Id.). The substance of such an account is “what is it to be a human being” (Id.). Moreover, “any adequate account of what it is to be a human being will explain how and why human beings are capable of the relevant kind of self-knowledge” (Id.). Furthermore, if Catholics succeed in offering such an account, they would be in a position “to engage with the contentions of the whole range of contemporary major philosophical positions incompatible with and antagonistic to the Catholic faith” (p. 178).
What is the answer to the question “What is it to be a human being?” offered by the leading schools of jurisprudence in the contemporary academy?: Law and Economics? Legal Realism/Critical Legal Studies? Feminism? Legal Positivism? Do these various schools of jurisprudence adequately respond to the Nietzschean challenge? Or do they succumb to it?
- In Centesimus Annus (1991), John Paul II confronts a philosophical and political system then dominant in the West, namely, socialism. He states that “the fundamental error of socialism is anthropological in nature,” subordinating the individual to “the functioning of the socioeconomic mechanism,” eliminating the personal responsibility of man “in the face of good and evil” and so reducing man “to a series of social relationships [in which] the concept of the person as the autonomous subject of moral decision disappears” (CA ¶ 13). Pointedly, John Paul observes, “from this mistaken conception of the person there arise both a distortion of law [sic], which defines the sphere of the exercise of freedom, and an opposition to private property” (Id.).
- We may, perhaps, think about how the Catholic intellectual tradition can be brought to bear on different aspects of law through the lens of “culture” that John Paul II proposes in Centesimus Annus ¶ 24. He begins by noting that capitalism, as practiced in much of the West actually “agrees with Marxism, in the sense that it totally reduces man to the sphere of economics and the satisfaction of material needs” (CA ¶ 19). Contrary to the shared materialism of these two competing political systems, “it is not possible to understand man on the basis of economics alone” (CA ¶ 24). Rather, “[m]an is understood in a more complete way when he is situated within the sphere of culture through his language, history, and the position he takes toward the fundamental events of life, such as birth, love, work, and death. At the heart of every culture lies the attitude man takes to the greatest mystery: the mystery of God. Different cultures are basically different ways of facing the question of the meaning of personal existence. When the question is eliminated, the culture and moral life of nations are corrupted” (Id.).
How does American law conceive of and respond to “the fundamental events of life”: birth, love, work, death? How do our law and legal institutions respond to the mystery of God? What is the answer to the fundamental events of life posed by the leading schools of jurisprudence in the academy today?: Law & Economics? Legal Realism/Critical Theory? Feminism? Legal Positivism?
- Coughlin flushes out what he describes as a Franciscan anthropology (pp. 624-626) which, he says, in contrast to the anthropology evidenced in Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992), “teaches that true freedom subsists not in the assertion of individuality alone, but from participation and solidarity with others in a common endeavor” (p. 625). This anthropology “offers the law the insight that legal relationships need not be defined exclusively in terms of individual rights” but that these freedoms must be balanced with responsibilities (Id.). He notes that “[a] system of law that is primarily concerned with individual rights may not readily enhance the goal of supporting family life” and that the language of individual rights “may result in a legal culture that seems hostile to the family unit” (p. 626).
In what other ways does the materialist anthropology implicit in American law distort law and so fail to support the human person and the common good of society?