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, February 9, 2010

When is a Catholic doing legal theory doing "Catholic legal theory?"

I've just posted a new paper with that title on SSRN.  Here's the abstract:

What does it mean for me to be a Catholic doing legal theory, even when I am not self-consciously trying to do “Catholic legal theory?” One simple response is methodological: I might be describing the Christian tradition, I might be proclaiming its truth, I might be speaking prophetically to power, or I might be speaking pragmatically about reasonably debatable methods by which to cultivate the common good. At different points, if I want to contribute to the full flowering of the Catholic legal theory project, I hope that I do all of these. At a deeper level, articulating what I do as a Catholic legal scholar must also account for what I do as a legal scholar. One concern is that the religious label, especially the Catholic label, will be an easy way to pigeon-hole me and more easily dismiss my opinions as pre-ordained conclusions dictated by my faith tradition, rendering them less authentic and even less human. In reality, though, my faith should be the impetus to delve even more deeply into the heart of what it means to be human, to grapple unflinchingly with the reality of our existence. When I use faith as an escape, when I toss off trite prayers to numb myself to the tragedy that unfolds around me, rather than praying to express and share in the depth of that grief, I am rightly dismissed by the grieving. Similarly, when I use faith in my scholarship as a bludgeon to wield against those who reject my worldview, or when I dress up my unsupported assertions as self-evident simply because they come from my faith tradition, I am rightly dismissed by those legal scholars who are authentically struggling with the question of how imperfect people should govern themselves in an imperfect world. The Catholic legal theory project has much to contribute to legal scholarship, starting with the anthropological question of what it even means to be human. (This essay is based on a presentation at Seton Hall’s conference, “Religious Legal Theory: The State of the Field” in November 2009.)

Any feedback readers have will be welcomed enthusiastically.


Vischer, Rob | Permalink

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There's so much to discuss but I should read your book before attempting to delve into any details! And I concur with virtually everything you say here. But I’m interested in your thoughts on the following:

First, I agree that the awakening and cultivation of conscience is “relational,” and thus “subject to continual shaping by the person’s experience of, and exposure to, sources of moral influence,” hence we sometimes speak of individuals who have acted in a way that seems utterly bereft of all conscience. So, while conscience may be a capacity or potential we all possess by virtue of being human, its purpose and exercise is dependent on processes of intimate socialization, beginning with the family, encompassing various customs and traditions, including religious and sometimes non-religious worldviews. And it seems true that, at least in the West, the understanding of conscience has been tied in some way or another to natural RIGHTS, which serves to color the exercise of conscience in strongly individualist terms (cf. Gandhi’s individualism, which was articulated in the context not of rights but duties and obligations that fall under the rubric of dharma). Traditions, customs, and worldviews serve as signs, pointers and the like, but the joys and burdens of self-discovery are by definition intrinsic to an individual quest, however much the quest takes place groups and communities of various type and size. I’m wondering if your reasons here for speaking of conscience as “relational” in the aforementioned sense are nonetheless fully compatible with the claim that conscience qua conscience is, in the end, not relational but individual in the way one speaks, after Kant, of moral autonomy (which has nothing to do with understanding individuals as acting in a vacuum, atomistically, etc.), in other words, in the end, one’s choices or decisions are wholly one’s own, which accounts for our basic notions of moral responsibility or accountability and liability in individualist terms. It seems the proper exercise of conscience must show cognizance of and be sensitive to the myriad forms of social relations in pluralistic social order, as well as be subject to some kind of generalizability or universalization condition tied to clearly if only minimally recognized ethical and moral principles that transcend (in an Hegelian sense)—or are shared by sundry—communities and traditions (as was the case during the civil rights movement). If the latter are lacking, subjecting claims of conscience to the marketplace seems quite reasonable if not unavoidable.

By (re-)affirming a more robust conception of individualism (one, I would argue, found in large measure in the Liberal tradition, especially but not only with Mill, as Appiah explains in The Ethics of Identity), I think we get a better sense of what it means to give metaphysical and ontological priority to the individual in the sense that a society or collectivity of any sort is no more than an aggregate of individuals, the group’s fundamental purpose being to serve the (spiritual, moral and psychological) developmental needs and purposes of individuals. Thus the common good is, in the first and last sense, forged in the crucible of individual freedom (or dignity) (of course all of the conditions for self-development cannot be provided by the voluntary efforts of individuals, hence the role of government). It is the individual human being who decides which ethical values are absolute. It is individuals who objectively realize values in the world, even if in concert with and for others, and so forth. It is just this sort of individualism that permits us to make the important distinction between one’s “received” community or tradition, and one's “chosen” community or tradition (bearing in mind that there are ‘choices’ and there are choices), the latter dependent upon attaining a developmental threshold that itself is, in turn and part, dependent on having reached the “age of reason,” a point at which the “relational” aspect of conscience is intrinsic to ethical individualism. And here is where I part company with Liberals and agree with the late David L. Norton* in opting for a “eudaimonistic” conception of individualism, a conception that a Sandel or MacIntrye would probably find hard to countenance:

“for classical liberalism there is nothing obligatory in an individual’s choice of this or that community or tradition, whereas for eudaimonism there is in the case of each person the RIGHT community and tradition, which he or she is required to endeavor to find as part of the inherent moral obligation of self-discovery and self-actualization. [....] Accordingly for every person there is a ‘natural community’ comprising those others who recognize, appreciate, and can utilize his or her worth in their own self-actualizing enterprises. The obligation of the individual to relate to this community is identical with the inherent moral obligation of self-actualization; her choice of herself is her choice of this community; and the choice(s) must be true commitment(s) if it (they) is to fulfill her inherent moral obligation. The effect of this is to ground both choices in self-knowledge and to support the teaching of common sense that commitments by persons who ‘know their own minds’ are trustworthy.”

In short, perhaps the various meanings of “individualism” warrant more clarification (not unrelated to my comment over at the Legal Ethics Forum on the other paper).

Apart from the above, your reflections on the questions and dilemmas faced by a Catholic legal theorist strike me as virtually identical to those I’ve had when thinking about what it means, in light of my own (somewhat idiosyncratic and inconsistent) religious worldview, to teach religious worldviews to students in a public educational institution.

*Please see his book, Democracy and Moral Development: A Politics of Virtue (1991).

Posted by: Patrick S. O'Donnell | Feb 9, 2010 2:53:07 PM

Incidentally, there's an oft-cited passage from the Analects (2.4) of Confucius that, I think, could be plausibly said to capture the "relational" and developmental dimensions of conscience:

The Master said, 'From fifteen, my heart-and-mind was set upon learning; from thirty I took my stance; from forty I was no longer doubtful; from fifty I realized the propensities of tian* (tianming); from sixty my ear was attuned; from seventy I could give my heart-and-mind free rein without overstepping the boundaries.'

*There's a brief introduction to this concept here (scroll down, as the terms are in alphabetical order): http://ratiojuris.blogspot.com/2009/11/power-introductionpart-3b-i.html

Posted by: Patrick S. O'Donnell | Feb 9, 2010 8:29:37 PM

Thanks Patrick -- I do need to check out the Norton book especially.

Posted by: rob vischer | Feb 11, 2010 11:28:15 AM