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, August 13, 2013

Jean Bethke Elshtain and "Legal Moralism"

Below Rick notes the passing of Professor Jean Bethke Elshtain, an important and distinctive voice in political and moral theory. My Catholic Social Thought students will remember her essay on human dignity, “The Dignity of the Human Person and the Idea of Human Rights: Four Inquiries,” which begins as an exploration of Professor Michael Perry’s work and then branches off into its own territory.

One of my favorite Elshtain essays is “The Perils of Legal Moralism,” published in the Journal of Law and Politics in 2004 and delivered as the Meador Lecture at the University of Virginia–a lecture on religion and law. I am on record as expressing skepticism about the epithet “legal moralism,” which is often said to mean implausible things that no serious person could possibly believe (e.g., the view that morality and legality should actually be co-terminous, or that all “sins” should be criminalized) and then promptly hurled at those whose moral views differ from those of the author.

But Professor Elshtain’s essay takes a subtle approach to the question of legal moralism, describing it more as a tendency or a cast of mind than as a fully worked out theoretical position. Legal moralism in her essay is the tendency to believe that the only way to have a moral life is through law: “Responsible citizenship means that moral adults can realize a life of freedom understood as ordered liberty–of both self and society. But, as a society, we seem to think people are stuck rather permanently in a stage of moral infancy or, at best, adolescence, as we rush to “make a law” to cover every contingency, thereby blanketing all of life with a moralistic mandate.” Here is a useful example of the legal moralist cast of mind and the way in which it stunts and deforms a society’s moral life:

Another AP story, this time out of South Dakota. A “teen-ager who flipped up his middle finger and mouthed the f-word several times at a school official was properly convicted of disorderly conduct, the state Supreme Court majority ruled.” The story makes it clear that the boy and his brother dogged the principal and his family as they were leaving a grocery store. In a pick-up truck, the boys followed the van driven by the principal for about a mile before veering off. What is fascinating about this case is that, rather than focusing on the potential dangers of following another vehicle through traffic–although in South Dakota there isn’t very much of that–or the danger of cutting off the car driven by the principal in the grocery store parking lot, it was the rude gesture that incurred censure. I am not a free speech absolutist, but it seems strange to charge the teenager for a gesture and for mouthing an admittedly rude word and equally strange for his defense to call the word and gesture a form of “free speech”–legal moralisms from both sides, in other words, as the ante is upped. In the process, speech is trivialized and rude teen behavior is treated as an actionable offense in the legal sense rather than as the occasion for some serious intervention by responsible adults: a legal occasion rather than a teaching occasion, let’s say.

Viewed as an orientation or a cast of mind, legal moralism’s greatest flaw is its tendency toward mapping out the moral life by codifying it. A society in which the legal moralist cast of mind is ascendant has great difficulty understanding and processing true goodness and true evil:

We are all wary of those who go outside the code or go too far, even in an undeniably “good” direction. Who among us could really live the life of Blessed Mother Theresa of Calcutta, going into the filthy, urine and fecal saturated gutters of New Delhi to pluck dying untouchables from what bade to be their deathbeds in order to care lovingly for them in their last days on earth? We admire–but from a safe distance. Something in us tells us that this is going too far; our codes don’t require this sort of thing. So we invent categories like “supererogation” for those who go beyond what the code requires.

At the other end of the scale of possibility, we have great difficulty dealing with evil when it walks among us or stalks us from afar. What Taylor calls ‘Providential Deism,’ a one-sided “definition of Christianity” took over in the West–a kind of “liberal, sanitized Christianity” which knows not how to deal with suffering or sin or evil.

Quoting Charles Taylor, Elshtain writes that “‘modern nomolatry’–the idolatry of the law–'dumbs us down, morally and spiritually.'”

I cannot do justice to the entire essay in this post. It contains other insights about codified ethical systems, the role of religion, and many other matters. Here's the conclusion:

Alexis de Tocqueville, in his masterwork, Democracy in America, sees the law, as well as religion, as essential to democracy’s decent functioning. Lawyers have a concern with proper order and formalities as one way to achieve a certain distance from the tumult and from ill-considered passions. Years of study, Tocqueville opines optimistically, breed in lawyers an intimate feel for a complex form of knowledge. Lawyers, in other words, form an epistemic community of sorts. A problem emerges if a comprehensive ideology or code is thrown over the law, occluding or short-circuiting its unique function and practices.

Law concerns people in their concreteness. It speaks to this moment, that event, that body, that person holding a gun. It speaks to our highest aspirations for human decency and rights and these, too, involve, not abstract, but flesh and blood human beings with whom we share a community, a nation, a fragile globe. Human rights are about blood and bones and rotting corpses and speaks directly to such realities. The law must make thick and thin distinctions of the sort comprehensive moralisms disdain. Interestingly enough, this understanding of the concrete role of the law meshes with the emphasis in Christian theology on the concreteness of being a member of a community of the faithful. [Dietrich] Bonhoeffer, again, is instructive. What Christians profess, he insisted, is not some metaphysical abstraction but a concrete belief in a God-man who died a very human death. If we fly to the heavens or to the metaphysical ether too quickly, we lose the moralities and ethics that are the very heart of the matter, for citizens and for religious believers alike.

Rest in peace.


DeGirolami, Marc | Permalink


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