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.

Wednesday, December 30, 2009

Response to Professor Kaveny

I owe Professor Kaveny a response.  Here it is.

Dear Cathy:

I appreciate the mostly friendly tone of your most recent comment.  I did not appreciate your earlier comment claiming that my critique of Michael P.'s Christmas Eve post was filled with insults.  It was not.  Although I took no pleasure in doing so, I felt it necessary to call Michael out for grossly caricaturing the views of people who did not share his opinions about sexual morality and ridiculing them rather than engaging their arguments.  Comparing people who dissent from liberal beliefs about sexual morality to racists who believe what they believe because they are saddled with a psychological aversion to things that are unfamiliar was a smear, and I said so. If what I said is true, you were way off base in describing it as an insult.  Was it true?  Have another look at Michael's Christmas Eve post.  Do you find nothing in the mode of caricature and ridicule there?  ("Black bonding sexually with white!  Yuk!")  Frankly, I don't see how you can miss it.

I also appreciate your saying that you've written to the New York Times about the name-callling ("Rambo Catholics,"  "ecclesiastical bullies") that I called attention to when Michael brought your name into the discussion.  You say that you provided context.  I want to make sure that MoJ readers know exactly what the context was.  Your colleague Mark Roche wrote a column for the New York Times in the run up to the 2004 presidential election claiming that voting for John Kerry was the right thing for Catholics and other pro-lifers to do, despite what he admitted was Kerry's very broad and deeply regrettable support for abortion.  Professor Roche is an excellent scholar and a fine man. (He was extremely kind and gracious toward me personally when Notre Dame was recruiting me to be Dean of its law school.)  His op ed piece was, however, poorly reasoned in my opinion, and Gerry Bradley and I, in a response published on NRO, pointed out its flaws.  You objected to comparing voting for pro-abortion politicians with voting for pro-slavery politicians.  Now it is right here that context matters.  Who introduced the analogy of abortion with slavery?  Professor Bradley and I would have been within our rights to do so, but we weren't the ones who did.  It was Professor Roche himself who introduced it.  It was he who said, in his op ed, that history will judge support for abortion "in much the same way that we view earlier generations' support for torture and slavery."  With Professor Roche's point in mind, Professor Bradley and I rehearsed in detail John Kerry's truly appalling record of support for abortion and its public funding.  We then asked:  "By what logic, then, does the author of the New York Times essay conclude that Catholics should vote for the United States Senate's most faithful supporter of what he says ought to be regarded, and some day will be regarded, as an injustice on a par with the evils of torture and slavery?"  Our answer was, by logic that is shoddy.  To defend this claim, we then addressed Professor Roche's argument point by point.  We did not call him names; we did not caricature his views; we did not resort to ridiculing him.  We engaged his argument and gave reasons for judging it to be very faulty indeed.  Readers needn't take what I'm saying on faith.  Here is Professor Roche's op ed: http://www.nytimes.com/2004/10/11/opinion/11roche.html?_r=1.  Here is our critique of his logic: http://www.nationalreview.com/comment/george_bradley200410120849.asp.

In my opinion, the key thing when it comes to drawing analogies between legally sanctioned grave injustices such as slavery and abortion is to provide arguments in support of the analogy.  Where I have drawn such analogies, I have tried to do that.  See for example my "Law, Democracy, and Moral Disagreement," Harvard Law Review, 110 (1997), pp. 1388-1406.  It is important not to use the analogies as excuses for resorting to name-calling and ridicule.  It is also important to note the limits of such analogies, since there are significant differences, as well as similarities, between injustices such as slavery and abortion. 

You've suggested that I read Russ Hittinger's book A Critique of the New Natural Law Theory.  In fact, I've done that.  In a post that crossed with yours I mentioned my critique of Russ's critique in chapter two of my book In Defense of Natural Law.  I also mentioned my respect for Russ as a scholar with whom I have had very productive exchanges---exchanges which became the foundation of a deep and abiding friendship.  I share your great respect for Alasdair MacIntyre (whom I consider to be one of the great philosophers of our time, and on whose work I have myself relied) and John Noonan, though I disagree with MacIntyre on some points and with Noonan on some deeper ones.  I join you in encouraging MoJ readers to read their works together with the works of Germain Grisez and John Finnis.  And I reiterate my invitation to you to debate the validity of Finnis's critique of Noonan on Aquinas's understanding of sexual morality.  I think that would be illuminating.

Your accusation (is it unfair to call it that?) that I or Finnis and Grisez pretend that "assertions" made in a "baritone voice" are arguments is one of those ex cathedra pronouncements that I would invite you to take responsibility for by providing evidence.  You hint that the evidence is the claim that basic human goods are self-evident.  But that won't do.  In the technical sense in which the most fundamental principles of practical reasoning (which are not, as you know, themselves moral norms) are self-evident (i.e., per se nota and indemonstrabilia, as Aquinas said), there is no implication that these principles cannot be (or should not be, or need not be) defended by arguments.  I go into quite a bit of detail about the nature and role of such arguments in chapters 2 and 3 of In Defense of Natural Law.

I will read your article "Toward a Thomistic Perspective on Abortion and the Law in Contemporary America."  I had not seen it.  Thanks for providing the link.  From other writings, I gather you think that President Obama's support for legal abortion and its public funding reflects the view of someone who, despite his own belief in the sanctity of human life in all stages and conditions, thinks that in a pluralistic democratic nation like ours, broadly legal, publicly funded abortion is the best we can do and we should therefore discourage abortion (since it is the taking of a human life) by means short of prohibiting it and take steps to reduce the number of abortions by enacting better economic and social welfare policies.  Have I got you right on that?  (I'm happy to be corrected.  I'd very much prefer not to be right.)  If I do have you right, I do not think your view squares with Obama's public record or the statements he has made over his years as an Illinois state senator, United States senator, and President.  Perhaps this is another point we could usefully debate on MoJ or in another forum.  Here is a link to an essay of mine (written before the presidential election) entitled "Obama's Abortion Extremism":  http://www.thepublicdiscourse.com/2008/10/133.
After the election, I had an exchange with Doug Kmiec about the President's record and views on abortion and embryo-destructive research at the National Press Club.  Here is a link to my remarks:  http://www.thepublicdiscourse.com/2009/05/214.  (The title given to them, which refers to Obama's "apologists," was not selected or approved by me. The word does not appear anywhere in my remarks. Those remarks treat Professor Kmiec with respect while challenging his views about the common ground available for pro-lifers to work with the President.)

You say I'm quite a Republican.  Well, the Republican Party certainly has its faults.  You know, I used to be quite a Democrat.  I worked for Governor Casey.  I helped with the speech he was denied an opportunity to deliver at his party's national convention.  I saw the buttons worn by delegates in good standing---lots of them---depicting Governor Casey dressed as the Pope and bearing vile anti-Catholic sentiments. I didn't feel very welcome in the Democratic Party.  Nor did Governor Casey.  He wanted his Party back.  I had the honor to be co-director of the issues committee for his presidential campaign before poor health brought it to a halt.  I think Bart Stupak is terrific. I've praised Kristen Day's efforts at "Democrats for Life."  I wish that both parties stood firmly against the killing of the unborn in abortion and embryo-destructive research.  I'd love to be able to be a Democrat again.  I hope we can count on you to work hard to shift the Party from its staunch support for abortion and embryo-destructive research so that millions of people who once regarded the Democratic Party as the protector of the "little guy," could return to the fold or at least think well of it again.

Happy New Year to you.

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