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, November 28, 2012

Law and Practices, and Why Have Children?

Following on earlier posts about the Duke Law and Contemporary Problems symposium on Stanley Hauerwas and law, the issue also includes a colloquy between Stanley and his former student Jeff Powell, then at DOJ's Office of Legal Counsel and now back on the Duke faculty. Among the many interesting observations, here are two bits. First, Stanley on the relation between law and moral practices, with some important implications, I think, for how law is taught in a Catholic university:

Now I thought at the time that lawyers resisted the charge that the law reflects politics or morality as a way to save what they were learning as skills of the law that gave them a sense of identity in a world in which moral identity was very ambiguous. They believed, “The law has an integrity that the rest of my life does not, and I’ll be damned to let it be ruined by recognizing that it reflects a community’s politics or morality.” So the law becomes an end in itself. That will kill you.

So fundamentally, if you are to be able to live out the life of the law you are going to need a more determinative community than the law, and that I worry is very hard to find. One of the temptations will always be to think that you can replace that community with theory. Theory is always a useful, imaginative exercise, but it’s not going to be sufficient unless you have a much more determinative set of practices that surrounds the law.

Second, in the Q&A, Charlton Copeland (Miami) asked the following question about liberalism (in the political theoretical, not politically partisan, sense), with Stanley's response below:

CHARLTON COPELAND: How might we avoid the shame that can result from being dependent upon the liberal state? If one were to read at least some of your work, there might be the sense of sadness for those whose lives or safety depend upon the liberal state in some important respects. How do we struggle though the sadness and not somehow let it become shame for those who depend upon the liberal state?

HAUERWAS: My problem has never been liberals. My problem has been Christians who are liberals and who don’t know it. I expect liberals to be liberals, and I’m deeply grateful for many of the kinds of developments that Stephen Macedo names. It’s good that we live in a social order where at least you have some legal recourse if you are arbitrarily arrested. The world as I found it is pretty damn good. But I need to name, as part of my service to it, what I take to be some of the profound challenges to our being able to live well together as human beings within the liberal rhetoric of our time.

Take abortion, for example. The real question is whether we as a people are confident enough in our lives to want to pass life on to future generations. Do we have such goods that compel our own lives that we think it sufficient to bring new life into the world, to say we want you to enjoy what we enjoyed? When I used to teach at Notre Dame, they had a course on marriage and family. Parents wanted the course in the curriculum to ensure that their kids would not do what the parents were afraid their kids were going to do when they went to college, but what they had already done in high school. I usually started the course with a question: What reason would you give for yourself or someone else to have a child? Students would answer that children are the manifestation of our love. Or that children are a hedge against loneliness. Or that we have children to please the grandparents. It’s amazing how inarticulate we as people are about what it means to have children, which I think can be a very basic moral presumption for any social order. And I think Christians can have something to say about that, and that would be of service within a liberal social order. If you think you are having children for your own happiness, good luck.


Moreland, Michael | Permalink

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