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.

Monday, February 9, 2015

Recognizing the "culture of rationalism" at work

Michael Moreland's recent post "Liberal Political Theory and the Family" helpfully notes how the framing of the questions in what seem to be two bona fide exemplars of Rawlsian investigation make various perspectives supplied by Catholic social theory "all but impossible to entertain." Another reaction to the review is to recognize the similarity in orientation toward reasoning about the family in the academy and in the federal judiciary. 

Take these two paragraphs from the middle of the review: 

Before turning to some critical comments it is worth being absolutely clear what the book is trying to do and what it is not doing. One could ask several normative questions about the family. In the present context three are salient. The first is why there should be families, or, in other words, why anyone should be permitted to act as a parent. The second is that of who gets to be a parent, and the third is that of who gets to be the parent of some particular child.

Brighouse and Swift are mainly concerned with the first question and least concerned with the third question, except inasmuch as they doubt that biological provenance — being the progenitor of a child — gives an adult a decisive claim to be the parent of that child. They thus offer some responses to arguments that purport to show that a progenitor has a right to a child. Otherwise they principally stick to the principal issue of ‘whether there should be “parents” at all’. It is, on their account, ‘a separate and further question which adults should parent which children’ (p. 49).

Some questions about these paragraphs: Who do these people (both reviewer and reviewed) think they are and what do they think they are doing? From where do they believe they have acquired the moral resources to enable their investigation? What supplies the active principle to enforce an answer to their passive-voice question: "Why [should anyone] be permitted to act as a parent?" Put another way, by whose permission is anyone to "be permitted" to be a parent? 

There are unthreatening and intellectually interesting answers to these questions of mine, as well as of theirs. And the activity of critical normative reflection on basic social structures can be a worthwhile activity. But there is reason to worry when reading sentences like these in close proximity to similar sentences written by those exercising the coercive power of government authority in authoritative proclamations. See, for instance, the resemblance between this kind of philosophizing about the family and judicial opinionating about marriage in federal courts in recent times.

In addressing the "reasons" for defining the legal institution of civil marriage to require one man and one woman, "moral" arguments are purportedly sidelined even while John Stuart Mill and his nephew Lawrence make an appearance. Judicial moralizing about the instrumental rationality of the institution of marriage in the name of "constitutional law" characterizes the opinions from beginning to end.

We have here fresh evidence of what Steven Smith has dubbed a "culture of rationalism." Smith argues that judicial decisions on certain matters of constitutional law in the United States reflect an indirect academic influence through inculcation of a culture of rationalism. "This rationalism," he writes, "has three components:"

[A] discourse that clings to the vocabulary of instrumental rationality; a perpetual roving commission that seeks to ferret out views or decisions based on tradition, faith, and emotion; and, finally and most decisively, an attitude of deference to the opinions prevalent among an educated class of citizens.

"This is the culture," Smith continues, "within which judges live and move and have their being:"

It largely sets the boundaries of what they can and cannot think and can and cannot say, and hence determines what the lawyers who address judges can and cannot think and say.

I would that it were otherwise but better not to understand it otherwise than it is.


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