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.

Tuesday, December 29, 2009

Cathy Kaveny responds to Robby's "rebuke"

[This is what Cathy has to say:]

I can’t help but note the irony of Robby’s call for intellectual rigor and clarity at the end of a post that throws labels, accusations, and insults around as if they are cashmere sweaters on the final sale table at Saks.  But perhaps everyone is a bit crabby after Christmas.

But if you get past the petty insults, there is a serious question about current method in Christian ethics.  Since Michael apparently conscripted me into this discussion, and since Jean Porter apparently has the good sense not to read blogs over the Christmas holidays, let me offer a couple of remarks on the state of the field.

To put it bluntly: Germain Grisez’s work is not regularly read or studied, as far as I am aware, in any major doctoral program in moral theology or Christian ethics in the country–although it is read in seminaries.  Nor is it read, as far as I am aware, in any major doctoral program in philosophy in the country–including well-ranked programs in philosophy at Catholic university’s such as Notre Dame’s.  This, in my view, is a shame–I think that his analysis of intention, deeply indebted to Anscombe, is very insightful.  I also think some of the casuistry is very helpful.  It is always worthwhile on particular questions, thinking up against Germain Grisez–as my mentor, Paul Ramsey said. I have learned a great deal from Grisez, and written on him, even when I don’t ultimately agree with him.

But despite his  intelligence and dedication to the church, Grisez’s method is not widely seen as the way forward.  The general theme: if you accept the rules of his framework, and agree to play it, Grisez is very good. But most moral theologians–liberal and conservative--reject the entire framework as essentially responding to the controversies of the 1960s–not as a way forward.


A. Problems in basic philosophical method.  Many philosophers, including conservative Catholic philosophers, dispute the basic framework of Grisez’s account of the natural law, on two grounds.  First, they reject their acceptance of Hume’s sharp distinction between fact and value, which post-analytic philosophy has largely eroded. Second, many theologians and philosophers have called into question the idea that moral life should be defined in terms of a number of  “self-evident” basic goods, which are not permissible ever to intentionally attack.  The goods seem to be defined arbitrarily--at one point, “play” was taken out and “marriage” put in.  Further, the “goods” do not seem to be at all the same type of thing (marriage is a social institution, life is a physical state).  Finally, what counts as acting against a good seems to be defined arbitrarily.  Why does contraception act against the good of marriage but smoking a cigarette not act against the good of life?

Many people, including myself, think Grisez’s theory and proportionalism need to be understood together as ad hoc responses to the contraception brouhaha in the late 1960s.  Wider application of either theory isn’t seen as desirable or even feasible.  It’s time to move on from both.

B. Problems with natural law theory.  Grisez assumes an ahistorical account of human reason, which many natural lawyers question.  Moreover, he defends an understanding of natural law that is not as open to insights from the natural and social scientists as many natural lawyers believe ought to be the case.  The cutting edge work in natural law is attempting to incorporate the insights from neuroscience, evolutionary biology, and social psychology into the conception of human nature. Grisez’s project tends to isolate his normative framework from any serious challenge from empirical or social data.  To what degree does evidence about the marriage and mating habits of human persons around the world enter into our conception of human nature and natural morality?  One fault line between say, Margaret Farley and Grisez would be the way in which they consider it legitimate to make use of empirical data in formulating a conception of human nature and the natural in regard to sexual ethics.  Other challenges to Grisez within this framework include whether or not his deductive approach to the norms of natural law is appropriate, or whether a more inductive approach is more adequate (Cahn/Maritain)

B. Fit with the Catholic tradition. The “new” natural law thinkers break significantly with the tradition, in large part over the separation of facts and values.  This break is seen as a significant distortion of the tradition –and a great loss- not only by progressives but by (very different) conservative Catholic philosophers such as Alsadiair MacIntyre and Russell Hitginger.  MacIntyre’s later work (Dependent Rational Animals) trying to show the place of nature and a natural biology in any real Aristotelian account of natural law is extremely important.  Hittinger shows how far the natural law theory of Grisez/Finnis is from a more traditional Thomistic account. The criticism, in essence, is that Grisez is more Kantian than Aristotelian Thomist.  But there is no need to go to Kant if you don’t find Hume’s account compelling.

C. Move toward virtue theory. In philosophy and in theology, there has been a great move toward virtue theory, which places moral rules in a context of a) an account of human nature; and b) an account of human flourishing including social practices. This move transcends liberal and conservative distinctions.  No one calls Alasdair MacIntyre a liberal Catholic in philosophical circles, or Stanley Hauerwas a liberal Christian ethicist.  In specifically Catholic circles, I would suggest you read Romanus Cessario, OP–no one ever called Father Cessario a liberal.  Cessario’s work on virtue, however, is frequently read  and taught by both liberal and conservative virtue Catholic virtue theorists. Grisez’s and Finnis’s dismissal of the importance of virtue theory in general, or as the framework within which to interpret Aquinas, is seen as deeply unsound–and untrue to the texts–as any cursory review of the Summa Theologica will show.  To dismiss the importance of virtue in interpreting Thomas is about on a par with dismissing utility in interpreting Bentham.;

D.  Problems with Method in Theological Ethics.  Grisez is also not seen as helpful by many Catholic moralists because of several other reasons. He tends to treat scripture narrowly as a source of true propositions or commands–ignoring the developments that have been made by Catholic scriptural scholars in examining the way genre and context affect scriptural interpretation.  Many younger, conservative Catholic scholars want to integrate fuller uses of scripture into their ethical method. More generally, Grisez tends to treat theology as a matter of true propositions–ignoring the resourcement of less linear and deductive ways of doing theology from the Patristic period thanks to people like Congar and de Lubac, as well as the recent discussions about the relationship of context to dogma (in different ways, Sullivan and Dulles and Lindbeck). His understanding of sin, like Robby’s, tends to locate it in the emotions, and to leave human reason untouched.  That is seen by many theologians to be too rationalist, and to fail to account for the depths of the fall.  Conversely, his understanding of grace treats it as providing no epistemological help, but merely help to a weak will.  It doesn’t resonate with the best studies on grace, either historically or methodologically.


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