In Ethics at the Edge of Law, Cathleen Kaveny follows in the footsteps of one of her teachers and mentors, Paul Ramsey, and engages in constructive, and at times critical, discourse with “nine modern moralists” whose work has inspired and challenged her own. In this discussion she serves as both interlocutor —posing questions—and mediator, posing questions and —bringing these other thinkers into discussion with the aspects of the common law which she believes will enhance, strengthen, or expand their own arguments and positions.

Kaveny’s commitment to discourse is not surprising: lawyers are talkative people. The popular parody (at least in legal circles) of the old Willie Nelson song “Mamas, Don’t Let Your Babies Grow Up to Be Cowboys”—insert “Lawyers” for “Cowboys”entitled “Mamas, Don’t Let Your Babies Grow Up to Be Lawyers”—reminds us that “they’re never at home, and they’re always alone, and they always have too much to say.”1 As Kaveny points out, a large emphasis of legal formation is on training lawyers in how to talk to each other in the present moment and how to engage in discourse with the vast engine of the common law stretching back over centuries and spanning the globe. The first-year law student must not only answer questions correctly on an exam but has to respond instantaneously to the truly terrifying first-year contracts professor’s probing questions on the cases at hand in the classroom. Through these exchanges students begin to learn how to enter into dialogue with the entire common law tradition – not only how to pick out not just the black-letter rules, but to see the place of the poor, the orphans, and “little old ladies” whom Kaveny so compellingly describes in the common law tradition. The junior attorney engaged in litigation practice not only learns how to write a brief or draw up a contract, but also how to talk before a judge to other lawyers in the foreign language of civil advocacy. Knowing how to talk to each other, in person or through documents, gives lawyers the ability to engage in ferocious advocacy for our clients, but then turn and walk out of the courtrooms at least respectful and respected colleagues, if not friends. The language of law, and the process of formation and enculturation into law, while far from perfect, provides a tradition-shaping discourse capable of richly contributing to the common good.

In the remainder of this reflection, I focus upon one insight about modes of discourse which arises in Kaveny’s book. I will argue that Kaveny’s description of how lawyers learn how to engage with the common law has much to teach theological ethicists about how we can and should talk to each other. Considering how to develop these appropriate approaches to public discourse is even more crucial for theological ethicists, since unlike lawyers, we do not have a common source of formation or shared training. Methodology, styles, and sources vary from school to school and generation to generation. There is no set canon of sources equivalent to the common law. Even within religious traditions the goal and approach of ethics is often disputed.

At times, it seems as if the center cannot hold, even (especially, perhaps) at a meetings of groups such as the Society of Christian Ethics. Yet I argue that Kaveny’s bridge-building between the common law and theologians models bridge-building between theological ethicists. By taking our cues from Kaveny’s interdisciplinary work, we can begin to determine how to more constructively talk to each other, not past each other, about our disagreements within our own discipline. Learning to talk to each other and taking the words of others seriously does not mean that we give up our opinions or our convictions. Rather, it means that we learn how to turn from arguing to advocacy.

Advocacy for lawyers is a question of both attitude and style. Lawyers are taught that being an advocate means learning how to integrate the facts of the case on the ground and the wrong being done with the precedents and principles of the tradition received from the common law, to tell a story that is “more complete and compelling” than that being offered by those advocating for a different position. In order to tell this story in the most compelling way possible, lawyers have to learn to listen to their opponents and integrate their arguments and claims in order to best explain their interpretation of the facts and the law. Through adopting this same approach, theological ethics would become more of a discipline of “mutual reason-giving” without sacrificing substance or conviction (79). As advocates, lawyers also always have to be aware of their audience. They often have to speak to both the judge (another trained legal professional) and the jury members, who usually lack a legal education. In a similar way, being advocates requires ethicists to consider how to communicate in a way which convinces a broad audience, not just academic peers. Learning how to advocate for our positions therefore requires communication that is not stifled in academic discourse. Clarity in language and abandonment of jargon would obviously enhance our conversation with the wider public as well as with each other.

Kaveny’s approach also provides a challenge for considering how we engage with the tradition as well as with each other. Kaveny describes how lawyers approach drafting briefs and oral advocacy as a tool for practical achievement based on responding to authority. This means that lawyers see their role not as determining whether or not an authoritative opinion is right on all points, but rather as helping shape its interpretation to make it better. She writes: “The opinion, itself one word in the continuing conversation of law, provides the raw material and the framework that enable the lawyer to exercise both creativity and judgment in proposing the next word” (19). To paraphrase St. Paul in Colossians 3:16, in legal formation the word of the common law comes to “dwell richly” in the lawyer, shaping the lawyer reciprocally as the lawyer shapes the word. How would discourse among ethicists be changed if we saw that part of our own formation as ethicists is to let the words of others dwell in our own hearts and transform us in the same way that we hope that our own words transform others? How much more effective would this make us as we sought to serve our dual ecclesial and academic communities? This approach would steer us away from anything approaching an ethics of domination or resistance, but rather an ethics characterized by mutuality directed toward a common goal. As Kaveny points out in law, this approach helps lawyers move beyond focusing only on “bottom-line” positions and litmus test answers. If consistently adapted it would orient theological ethics toward a discourse of formation which “would focus more on sources, methods, and intellectual and moral habits than on bottom-line positions” (30).

Kaveny also considers how learning to engage in the discourse of the common law teaches us to bring the atemporal universal and the historical particular together. The common law teaches us that “facts and rules are not only inseparable but also mutually interpreting . . . facts make a rule multi-dimensional” (70). In writing about the contract cases she loves, Kaveny she demonstrates how “the common law is constructed around the hopes, disappointment, and controversies of specific persons whose names give title to each case in the law books” (104). The stories of people are always attached to the cases, and it is their stories which make the rule comprehensible. Yet this focus on particulars does not prevent the judge from confidently developing a rule from these particulars that can govern other cases, and which is in turn faithfully connected to the general principles derived from all the other cases making up the reason of the common law. This question of how to bring the universal and particular, as well as the historical and contemporary, together is one of the challenges currently confronting theological ethics. In other words, as Kaveny writes in her discussion of witness statements and their impact on sentencing, we are not agreed as a community as to how we should “critically evaluate the role of experience in assessing the nature and gravity of a particular act from a moral perspective as well as to consider whose experience counts most in that assessment” (117). The common law law has the potential to teach ethicists how to think both with the particular facts and with the general rules. Otherwise, we will end up like the unfortunate 1L students Kaveny describes, careening between rigid legalism and pragmatic skepticism, either only thinking of rules or seeing the facts of each ethical case as too disparate to ever present a cohesive ethical claim beyond a specific context. Just like for lawyers, neither of these approaches provides enough ethical substance to find common ground for discourse and discovery. The same is true for ethicists. The rule-bound ethicist fails to pay close enough attention to the distinctions and differences among communities, and over-universalizes. The contextual ethicist working who only argues from the differences of each context and situation fails to offer any type of universal claim which can connect communities within the broader Christian community. In short, the rule-bound ethicist forgets that individual experiences do matter, while the ethicist working only from experience forgets about the unity to be found in the communion of the saints.

Finally, Kaveny takes her clue from the common law in her commitment to reading people as their best and most coherent selves. Just as the common law requires the presumption of innocence until proven guilty and contains the canon of leniency (which argues that an ambiguous criminal statute should always be interpreted in favor of the defendant) Kaveny consistently presents authors she respects in a favorable light and presents common law reasoning not as a rebuke but as a way to expand and build upon intellectual and theological foundations which she already admires. Just as the common law incorporates dissents and concurring opinions, keeping those voices and understandings current throughout the discourse and development of the tradition, Kaveny seeks to incorporate a wide range of prominent ethicists. At first glance, their differences might make them seem too discordant to be addressed in the scope of one work. However, Kaveny’s charitable yet critical reading demonstrates that each figure, in his or her own way, is a valuable and valued contributors in the tradition that constitutes theological ethics (79). If  all ethicists were to adopt her commitment to charitable readings of the intentions and commitments of others it would undoubtedly make all the other tasks described above much easier.

Clearly, then, Kaveny makes key contributions to the practice of theological discourse from the perspective of the common law, but her approach is not immune from critique. First, as her chapter on Walter Kasper demonstrates, there are limits to what questions and discussions the common law can inform. For example, in her analysis of Kasper’s proposals regarding communion for the divorced and remarried, Kaveny’s reliance upon the common law as a tool for analysis means that she is limited to discussing marriage primarily as a contractual arrangement, not a sacrament. While the contractual nature of marriage is undoubtedly an important aspect of Christian marriage which must be considered, sacramental understandings of marriage incorporate other transcendent elements which Kaveny does not consider. This lacuna shows that in situations involving the claims of the miraculous, there are limits to how much can be explained by drawing connections the connection between theology and the common law, the latter being by its very name and nature common.

Thus, although this chapter raises valuable questions, it leaves untouched other serious theological concerns. However, even this silence serves to demonstrate the importance of the common law-informed mode of theological discourse toward which I argue Kaveny is pointing us. It is especially in approaching these difficult questions which directly impact people’s lives and choices that learning to talk to each other regarding deeply entrenched beliefs and lived pastoral convictions takes on additional significance and importance.

Second, another concern might be raised regarding my development of Kaveny’s project for theological ethics. In ethics there is no authority with jurisdiction, like a judge, to rule in favor of one side or another and produce authoritative case law. Although the common law develops and grows, it always does so within a clear structure of precedent and authority which contemporary theological ethics lacks. However, to prove that developing these practices of discourse is possible even without judicial authority, I will turn to the common law myself to demonstrate just how powerful communal practices can be in serving as a way to establish ethical guidelines. In Dondi Properties Corp. v. Commerce Savings & Loan Ass’N, 121 F.R.D. 284 (N.D. Tex. 1988) the judges of the Northern District of Texas sat en banc to address continuing issues of bad faith, unprofessional conduct, and attorneys’ demands for sanctions of the opposing parties, which had repeatedly arisen in several cases before the judges in the district. In response to widespread and persistent failures by attorneys to conform to appropriate standards of conduct and to display respect for the opposing parties, the judges instituted new standards of conduct which went into greater specificity than the standards imposed in the Federal Rules of Civil Procedure.

However the judges did not devise their own standards from a blank slate or from the Federal Rules themselves. Rather, in the spirit of the common law, they turned to the “Guidelines of Professional Courtesy” and “Lawyer’s Creed” which had been adopted and developed by the local legal professionals of the Dallas Bar Association. By following these standards, the judges wrote that “attorneys who abide faithfully by the standards we adopt should have little difficulty conducting themselves as members of a learned profession whose unswerving duty is to the public they serve and to the system of justice in which they practice.”2 In adopting a similar approach to communally developing and articulating our own standards of courtesy and respect, perhaps theological ethicists, who are hopefully characterized by “unswerving duty to the public they serve” and who are devoted to a “system of justice” far greater than that practiced by contemporary American lawyers, might also advance our own “learned profession.” The hard work of the Dallas Bar Association in articulating these standards might provide a helpful model for ethicists as well.

Of course, to achieve this type of coherent approach to engagement, Christian ethicists must consider what exactly is our duty. As a starting point we could do far worse than returning to Kaveny’s work again. In her consideration of the case of Watts v. Watts, Kaveny reminds us that law has three functions: remedial, pedagogical, and channeling. Law therefore constitutes a tradition which not only forbids or permits, but which also “enables and encourages, or impedes and discourages” (49). Each of these three functions, she reminds us, must be served in addressing conflict between neighbors. One of the most important ends which Christian ethics can accomplish is to form people who can be reconcilers in these conflicts between neighbors, living out the love of Christ. Agreeing on these purposes of ethics would help Christians establish common ground as we seek together to remedy particular situations of injustice which destroy neighbor-love; to teach our students, the broader public, and each other; and to incentivize all of these groups (and ourselves) by the compelling nature of the stories we tell and the rules which guide and form us.

I

Cathleen Kaveny argues in Ethics at the Edges of Law that law has much to learn from Christian theological ethics and that Christian ethics could learn a good deal from law. As a law professor and not a theologian, I am presumably more qualified to assess the first of these claims. But that would be a bit too easy, because the first claim is quite obviously correct. It is a commonplace in American legal thought, after all, that legal discourse degenerates into barren formalism unless it is guided by insight and wisdom from outside law narrowly conceived. Hence law-and-economics, law-and-literature, law-and-whatever. And even non-Christians presumably might acknowledge that the Christian tradition embodies centuries of searching reflection on vital human questions. So it would be astonishing—wouldn’t it?—if such a tradition did not have insights that could be valuable to law. To be sure, Kaveny brings a lively mind and formidable learning to the subject, which is enriched in her treatment. Even so, the verdict seems pretty much foreordained.

By contrast, the second claim—namely, that Christian ethics has much to learn from law—seems potentially more provocative. And so, confessing my lack of qualifications, I offer some tentative thoughts on that claim.

II

How exactly, according to Kaveny, is law supposed to be helpful to Christian ethics? Sometimes the assistance lies in particular legal concepts—contractual reliance, the idea of a completed as opposed to a continuing offense—that she thinks are useful in clarifying one or another ethical problem. But the law’s contribution is also more general in nature. Some thinkers—Alasdair MacIntyre and Jeffrey Stout are prominent examples—hold that moral reasoning consists not so much in the deductive application of abstract first principles to particular cases, but rather in reflection on issues from within an intellectual tradition. This view raises a variety of questions. Can this sort of tradition-bound reflection yield right answers? Does it degenerate into relativism and arbitrariness?

Kaveny thinks the common law tradition sheds light on these questions. Common law reasoning, she thinks, is very much the kind of tradition-engulfed enterprise that MacIntyre and Stout describe. Such reasoning is neither purely deductive nor rigorously determinate. Even so, experience shows that such reasoning can be a fruitful and disciplined way of bringing human wisdom to bear on human controversies, yielding answers that participate to greater or lesser degrees in justice and rightness.

To my mind, Kaveny is generally persuasive on this point. Still, a critic’s job is not merely to praise but also to raise questions and objections. And so I will dutifully try to raise questions about Kaveny’s discussion.

III

Start with this question: on what assumptions would the kind of tradition-laden reasoning described by MacIntyre and Stout—and Kaveny—seem sensible and attractive? Here is one answer, generally congruent (I think) with a classic natural law position. Let us suppose, to begin with, that there is some kind of normative truth, or some kind of “objective” (for want of a better word) moral order. But we then qualify that supposition, in two ways. First, we humans do not have immediate access to the truth in its purity and fullness; we approach and perceive it, rather, as it is dimly manifest in the variety of experiences available to us mortals. And, second, the normative order is general in nature; it can be concretely embodied in any number of different “forms of life,” to borrow Wittgenstein’s phrase. (This second qualification resonates, I think, with the natural law concept of determinatio.)

On these assumptions, it seems, there would be good warrant to work respectfully within a tradition, because the tradition is a form of life—a way in which humans can live, and live with each other—that is grounded in moral truth. A tradition is in that sense a precious inheritance. And yet any given tradition is neither a perfect embodiment of the moral truth—it is subject to all of the vicissitudes of human fallibility and sinfulness—nor an exclusive embodiment of the truth. Just as communication can occur in a whole variety of languages, so the moral truth can be realized in a variety of different forms of life, or traditions.

The imperfection of a tradition supports its proponents in adopting a respectful but also critical attitude towards it. Some might carry that critical attitude to the point of rejection—rejection, that is, of the tradition’s normative authority. As it happens, this posture is familiar enough in our time, platitudinous even: tradition in itself counts for nothing, and we should instead try to live in accordance with truth, or “reason.” And yet on the conception presented here, that prescription is mere delusion. We mortals have no direct access to the pure truth; and even if we did, that truth would not tell us how to live except as embodied in particular forms of life, or traditions. Trying to live by truth outside of tradition would be like trying to communicate without resorting to the “socially constructed” conventions of English or Spanish or Latin.

This is an account of tradition, I believe, that might elicit our respect. But the account depends upon the assumptions noted above—namely, that there is a normative truth that is (imperfectly) embodied in and (imperfectly) discernible in tradition. Now imagine that this supposition is rejected. What will happen? What sense will reasoning-within-a-tradition make now? Consider two forms that this rejection might take.

IV

The first form of rejection is starker: a skeptic might simply deny that there is any sort of “objective” moral order. The world is nothing but random conglomerations of matter in motion. And we humans are biological organisms that have evolved through random natural selection. So the idea of an “objective” moral truth is at best a comforting metaphysical illusion. On this rigorously naturalistic and skeptical picture, a defense of tradition might nonetheless be attempted, perhaps on instrumentalist grounds: tradition might be presented as an evolved way of doing things that is likely (again because of natural selection) to be efficient or pragmatically efficacious. But even if this claim seems plausible, tradition in this view will lack the authority it has in the natural law version. And whenever a received tradition appears to conflict with instrumentalist prescriptions, the tradition must give way: any other conclusion would be simply irrational.

As it happens, this way of thinking is pervasive—most often assumed, occasionally articulated—in law today. And so the common law is misunderstood (as simply “judge-made law”), depreciated, and shunted aside in favor of “policy analysis.” Such at least is the familiar official position, and it is one that renders problematic Kaveny’s general claim about how law can provide useful instruction to Christian ethics. What sense would it make, after all, for a body of thought and practice (Christianity) that arguably does embrace the suppositions necessary for authoritative tradition to accept instruction in the value and use of traditional reasoning from a discipline (law) that does not accept those necessary suppositions?

And yet, as with baptism by immersion, we’ve seen it done. Kaveny’s chapters show, arguably, that law can provide valuable instruction to Christian ethics. So, how is this possible?

I tentatively offer two observations. First, the part of law that Kaveny typically appeals to with respect to the use of tradition is contract law. I myself have never taught contract law, so I cannot make the following claim with certainty, but it may be that there is more continuity and coherence in contract law than in other areas of law. And maybe the core purpose of that body of law, seeking as it does to facilitate consensual human interactions, naturally imports a kind of telos that makes reasoning-within-a-tradition a more viable possibility than it is in other fields of law.

Or maybe other fields also have their own intrinsic teloi—which leads to my second observation. As a historical matter, the makers of the common law tradition were very much committed to a natural normative order. Here is a classic statement by Blackstone: “This law of nature,” he explained, “being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. . . . No human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.”¹ Today, of course, few legal thinkers would be caught making any remotely similar statement. And yet, as I have argued at length elsewhere (and as Holmes lamented), lawyers, judges, and legal scholars today still talk and behave, to a remarkable extent, as if there were some transcendent law lying behind the arguments and decisions.² One of the great legal thinkers of the last century (and, perhaps not coincidentally, a leading contracts scholar) put it this way:

It is not too much to say that the judges are always ready to look behind the words of a precedent to what the previous court was trying to say, or to what it would have said if it could have foreseen the nature of the cases that were later to arise, or if its perception of the relevant factors in the case had been more acute. There is, then, a real sense in which the written words of the reported decisions are merely the gateway to something lying behind them that may be called, without any excess of poetic license, “unwritten law.”³

So perhaps contemporary lawyers do after all tacitly believe in the presuppositions necessary for authoritative tradition—their own protestations to the contrary notwithstanding. It is a confused situation, for sure. But maybe this is why law is still able to illuminate the workings of reasoning-within-a-tradition.

V

Now consider a different, less direct but potentially more threatening way in which the suppositions necessary to authoritative tradition might be rejected. Imagine a society in which nearly everyone believes in some moral truth; the problem is that people are separated into two (to keep it simple) contending camps that hold different and mostly antagonistic views of the nature and content of that moral truth. People interact and intermingle, and yet each camp inhabits, as James Davison Hunter put it, “a separate and competing moral galaxy.”⁴ Now how will the process of reasoning-within-a-tradition work out? Not well, one might think. Because what one camp reveres in the tradition, the other camp may deplore. And yet this is arguably the situation in America today, in the nation and perhaps within Catholicism as well. (As a non-Catholic, I can only observe from the outside.)

Such conditions seem to pose a serious challenge for Kaveny’s project. And my sense is that she is aware of that challenge but would prefer not to acknowledge it. This criticism may seem unfair, because in fact Kaveny repeatedly refers to the fact of polarization and “culture wars.” And yet she always seems to draw back from actual engagement.

Thus, in the first chapter, Kaveny makes the intriguing observation that John Noonan’s scholarly career reflected an optimism that Christian thought and secular thought were following similar and generally laudable trajectories. Much of Noonan’s work would be placed in serious question, she astutely observes, if that optimistic assumption is not correct (32–34). It is a crucial point, I think—and one as applicable to Kaveny’s own work as to Noonan’s. But having noted the issue, Kaveny moves on; she does not take up the obvious question.

The issue comes up again in the chapter on Paul Ramsey. Throughout the book, Kaveny respectfully draws on Ramsey’s insights. But her chapter specifically on Ramsey is mostly devoted to severe criticism of his later phase of (as she calls it) “Christian combativeness” (140). Reacting to developments such as Roe v. Wade, Ramsey came to view “secular law as an outright threat to the most important commitments of Christian ethics.” In this respect, Kaveny notes, his position anticipated John Paul II’s in Evangelium Vitae (146, 150).

At this point, an obvious, urgent question would seem to arise: What if Ramsey and John Paul were right? A lot would seem to hinge on the question—for Kaveny’s work, and for our society generally. And Paul Ramsey and John Paul were surely substantial enough figures to warrant respectful consideration of their views. And yet, puzzlingly, Kaveny does not ask, or address, that obvious question. Instead, she asserts repeatedly that Ramsey became a “harbinger” of conservative culture warriors (139–40, 146, 158–59)—as if this were in itself sufficient reason to dismiss this aspect of his mature thought. She then proceeds not to engagement but rather to diagnosis. Ramsey’s lamentable late phase is attributable, she thinks, to his “unwillingness to grapple straightforwardly with the relationship between sin and the law” (150).

I have no idea whether this diagnosis of Ramsey is cogent. Even if it is, the urgent question remains. Moreover, Kaveny’s diagnosis strikes me as ironic: one can think of another candidate close at hand for whom that sort of diagnosis seems very much on point.

VI

An unwillingness to engage with the question of cultural polarization, and with the very real possibility that Christian and secular trajectories are not parallel but rather in profound conflict, is to my mind the major shortcoming in this otherwise admirable book. Maybe I am just more pessimistic than Kaveny is—more sympathetic to the perspective of Ramsey and John Paul.⁵ Still, every book has its limitations, and this criticism should not preclude more general appreciation for a work that is erudite and thoughtful and—in most respects if not in this one—engaged and balanced in its treatment of a range of important thinkers and issues.

¹ William Blackstone, Commentaries on the Laws of England 41 (1979; first published 1765).

² Steven D. Smith, Law’s Quandary (2004).

³ Lon L. Fuller, Anatomy of the Law (1968), 92, emphasis added.

⁴ James Davison Hunter, Culture Wars: The Struggle to Define America (1991), 128.

⁵ See Steven D. Smith, Pagans and Christians in the City (2018).

It will perhaps be best to begin a reflection on Ethics at the Edges of Law with a confession about the traditions to which I, as an author, belong. Like Cathleen Kaveny, whose scholarship draws her toward the progressive possibilities that attend the Catholic moral tradition when that tradition is placed into constructive conversation with the Anglo-American legal tradition, my own work seeks to chart similar progressive trajectories, though—in my case—at the intersection of the Catholic moral tradition, queer theory, and critical race theory. I therefore greet Kaveny’s project both with a deep sympathy for the aspirations to which Kaveny sets it, as well as with a genuine enthusiasm for the creative insights she leaves us with. Yet, as I take my leave of the text, I find equally that one of the text’s most important lessons is one that Kaveny does not intend to teach at all. That lesson is that a certain insistence to think in terms of “traditions” may lead us, in fact, not only toward a false sense of the coherence of those very traditions, but also toward an inability to make sense of the various structural inequalities that those traditions perpetuate. One consequence, then, of thinking too closely along the lines of traditions is to think of our ethical world in ways that undertheorize the problems attending it. So, in this space, I’d like to think not only about the various advantages that thinking with a coherent notion of tradition gives us—a task which Kaveny executes masterfully—but also about the various dangers to which the very same thinking renders us liable.

The notion of tradition that Kaveny works with throughout is one that descends from Alasdair MacIntyre, according to whom a tradition can be understood more or less as an intergenerational argument extended over time about how best to realize the goods internal to that tradition. Yet, equally important to note about Kaveny’s work is that not only does she engage moral theology as a tradition, but she does so precisely in order to push that tradition as a progressive moral theologian. One example of this manner of proceeding—where she chooses to stay at the roundtable of the tradition even while seeking to move it forward—comes to fruition in her penultimate chapter, in which she discusses the communion of divorced and remarried Catholics. The argument here is important, and all the more so because it is based in the Christian value of mercy. Drawing Walter Kasper, Pope Francis, and the criminal law to this particular roundtable, Kaveny argues that our current understanding of the sin of adultery in the case of a remarried Catholic—namely, that every sexual act in the second marriage is an act of adultery against the former spouse—is inadequate to the actual reality of the persons involved. To continue in such a view would imply that a divorced and remarried spouse commits—and here we introduce the legal term—a “continuing offense” against the first marriage. But, as Kaveny argues, this is unhelpful on a number of levels. On one level, such a characterization seems to ignore what is being signaled by the civil divorce, namely that there is no longer any way to save the first relationship. The law recognizes—and, by implication, so should the Church—that the marriage has ended. When this aspect of the divorced and remarried Catholic’s situation is taken seriously, it then becomes easier to see, at another level, that if the divorced and remarried Catholic is committing any sin in divorcing and remarrying, adultery is not it, since adultery would imply deceit, physical and emotional betrayal, and exploitation of the innocent spouse (198), and these can hardly be said to be present once a Catholic has contracted a civil divorce, at least if the words are taken in their ordinary senses. In view of this argument, Kaveny offers that the Catholic tradition should recognize that the “sin” committed by a divorced and remarried Catholic is “completed” at the moment the spouse contracts a second marriage, thereby allowing the Catholic to repent and receive communion once again (202).

This style of doing Christian ethics is admirable in my view because it displays a desire to think with the tradition, which is no easy feat in a Church that is plagued with various manifestations of deadly secret-keeping, racism, sexism, patriarchy, and homophobia, among other grave sins. Such a style, moreover, plainly displays a faithfulness to the Church’s tradition that many traditionalists claim is not there. And yet, I’d like to maintain that even though we can regard Kaveny’s progressive style as one that we need in the tradition, her presentation of such a style comes with some unacknowledged dangers.

The problem, in fine, is that the desire to think in terms of “traditions” can lead to a premature closure of those traditions’ boundaries and, as a consequence, can lead to a similar loss of those traditions’ collective possibility to confront the structural evils by which they are beset. One example of this comes at a point where Kaveny offers the legal academy as a positive example for the theological academy. What Kaveny holds out for imitation by theologians is the common canon of texts that the legal academy studies, even as she remarks that each law school will maintain certain distinctive approaches to the law (30). This, in Kaveny’s view, is just what is missing in the preparation of moral theologians. Kaveny writes, “Yet an unwelcome by-product of the salutary expansion of the field of moral theology has been the loss of a common canon that characterizes the field, or a common set of sensibilities that characterizes its practitioners” (29).

To me, how to read this nostalgic loss-of-cum-desire-for a tradition seems worth interrogating. The most helpful way I can think of conducting such an investigation would be to begin with what Kaveny sees as the goal of such a reformation within graduate schools of moral theology. As Kaveny puts it, a common-canon approach to moral theology

would focus more on sources, methods, and intellectual and moral habits rather than on bottom-line positions. It would critically examine the primary texts that leading moralists draw from, the thinkers they hold up as insightful, and the care, attention, and respect they give to the tradition as a whole. In so doing, such an approach would attempt to create the basis for a common conversation, albeit one that is richer and more diverse than it was before the Second Vatican Council. (30–31)

As a theologian who does work at the intersection of queer studies and critical race studies, I have no objection to cultivating a richer and more diverse theological conversation. Indeed, for my part, I don’t see how our Church will survive without embracing such an option. But, given the state of our historical canon—which is so whitewashed that telling my students that Augustine was black comes as a sort of revelation to them—and given that our current intellectual environment (even post-Vatican II) is mired with homophobia, transphobia, and displays a persistent misunderstanding of how extensive white supremacy is, I am in no rush to draw up a common theological canon that takes its partial inspiration from another canon that is itself modeled on the (white, Anglo-American!) tradition of legal reasoning that defended slavery, deconstructed reconstruction, gave us Jim Crow, and now reemerges as the force that defends capital over labor while simultaneously incarcerating black bodies or creating shooting victims of them at the hands of private citizens who either stand their ground or who wear police uniforms and do the same thing.

It would be a misreading of my point to think that I am arguing that we shouldn’t aspire to a tradition that may, one day, reflect the diversity of God’s creation and realizes the equal dignity of all of us. My point is that today is not that day. That day is our eschatological tomorrow. Today, my point is that we have not gone far enough in educating ourselves about how our theological frameworks—whether composed by traditionalists or progressives, by men or women, by the dead or the living—continue to perpetuate the actual cultures of death that stand opposed to the Gospel of life. We do not, in other words, have a vantage point high enough to speak of “canons” within “traditions,” because we, the academic gatekeepers, have not yet done a good enough job of including all the voices that need to be heard in order to gain a sense of the whole from which a canon abstracts major figures. In my view, then, prudence demands that we think of cultivating diversity not within an intellectual framework that believes that in the near future we will arrive at the comfort of a canon; but rather, that we think of cultivating diversity from the posture of dis-ordering our canons, of dis-orienting our notion of tradition, of looking for truth and the voices that carry it from outside of the West and among the West’s victims. In this view, the canon becomes a part of our eschatological hope. Now, crucially, constitutive of such a realization is the observation that we do not really know what the boundaries of the “Catholic” tradition really are—or, at the very least, we need to maintain a sort of intellectual agnosticism about them. In other words, it’s not that we have the “tradition” and we’re expanding it; it’s that we don’t have it, and we want to find it. Otherwise, we risk introducing closure prematurely.

So (perhaps not without a touch of irony) to close, I’ll give one example of where I think we witness such premature closure in Kaveny’s text. After a discussion of how to enact justice for the victims of crimes, Kaveny offers that one route that we should not pursue is one that permits victim impact statements at sentencing proceedings. Her justification, ultimately, is that hearing victim’s stories belongs more properly in our legislative process rather than in our judicial process. “In my view,” Kaveny writes, “the experience of victims is most crucial in the development of statutory frameworks and the assessment of what [in] a city should be prohibited or permitted” (136). Why this closure of the judicial space? In Kaveny’s view, it is to protect against prejudicial proceedings against a defendant (135–36).

This is not something Kaveny recommends without compassion. In fact, as one reads the chapter, it is easily conceivable that Kaveny has in mind a situation where there is a perhaps poor black defendant. Kaveny writes,

While it proclaims equal justice for all, our legal system remains deeply socially stratified, particularly by race and economic status. In such a context, the use of victim statements poses too great a likelihood that victims will be sorted into categories based on social worthiness, and the fate of defendants will become even more dependent upon the relative rhetorical skills of the counsel. (135)

Kaveny’s suggestion is that we can best defend against the encroachment of structural evil in the courtroom by cordoning off a space—the courtroom—where we use assigned roles to mitigate these undesired effects (134–35). Victim-impact statements at sentencing proceedings, she maintains, would more than likely increase the likelihood of such an unwelcome encroachment. However, such an (en)closure of the judicial space appears to me premature to the extent that the potential success of Kaveny’s solution trades on a highly idealized notion of how justice in a courtroom occurs. As we know, the roles played by jurors in the United States have always been one of fact-finders who should ideally maintain no bias with respect to the arguments put before them. A review of US history, however, reveals that, first, such bias—especially racial bias—has persisted alongside calls for such role-playing neutrality, and that, two, one of the best ways we’ve discovered to dismantle the effects of such racism has been to break up all-white juries. The solution, in other words, has been to increase the presence of society’s victims in spaces of power, not only to insist on adherence to an ideal bequeathed to us by the tradition of what a courtroom space is supposed to be. Kaveny’s solution, by my reading, insists on the latter without insisting on the former.

Now, to be clear, Kaveny offers no argument against the racial integration of juries, and I have no reason to believe that she would oppose it. But my argument is not that Kaveny does. My argument is that, in deference to a tradition-based ideal about what the courtroom should be, her recommendation concerning victim-impact statements short-circuits the overall goal of justice when structural inequalities are taken into account. My argument, in other words, is that when we choose to fully recognize that our society is a white supremacist hetero-patriarchal capitalist society, we must appreciate that all of its institutions—judicial or otherwise—ultimately redound to the benefit of the white people, particularly straight white men. Because of this, it becomes all the more important that the voices of victims be placed into as many contexts as possible, whether this be realized in placing more of society’s victims onto our juries, or—in this case—this be realized by also allowing victims in sentencing proceedings to make impact statements. The solution is fundamentally additive in favor of increasing the presence of society’s victims.

One would misunderstand my point, however, if one chooses to limit my consideration of society’s victims simply to the identities of the various plaintiffs in criminal trials. Far from it: because the axes of oppression are not only racial, but are also based on sexual orientation, gender identity, socioeconomic status, immigration status, among others, there is, strictly speaking, no paradigmatic identity of a victim. Crucially, for my point, the identity of the victim is not always or only that of the plaintiff. When we take the reality of intersecting oppressions seriously, it becomes clear that one can be a victim-defendant just as one can be a victim-plaintiff. This is the reality of our complex world, and the only way these identities can become more apparent is through hearing their stories—through hearing how the crime, whether as perpetrator or victim, has impacted their lives. To insist otherwise—that, for example, we should only consider the victim to be the one who has undergone a crime in this instance or to consider the perpetrator to be the one who, in this instance, has unilaterally chosen to disregard the common good—is to simplify serving justice in such a way that justice becomes an even more distant goal. The lines between commutative and social justice in a world after feminist, black, and queer activism are not so clear. My proposal, therefore, is once again additive: in recognition of the fact that interlocking oppressions can produce victims who can identify either as the plaintiff or as the defendant in the same adversarial proceeding, we must recognize that the possibility of justice being served by the jury attends the ability to hear their stories, to hear how the crime has impacted each other. Victim-impact statements, in this more extended sense, represent a way toward this ideal of justice.

More than simply helping us realize the virtue of justice, I see this conviction as central to realizing the gospel message as well. For it is difficult for me to chart out any path to the reign of God where the voices of the victims are not centered as often as possible; where we refrain from disordering our systems, either because of nostalgia or because of a belief that the roles we should play in a system are the ones we actually do play. Of course we might hope to build that eschatological city tomorrow, but what is our organizing strategy at the intersection of law and moral theology when we do not sidestep the full weight of white supremacy, racism, and hetero/sexism today?

Introduction

The “ethics as the edges of law” about which Cathy Kaveny writes so eloquently are readily seen as the complex interaction of justice and love. I explore in this essay how two Christian authors (Karl Barth and Søren Kierkegaard) and two case studies (Bull in the Ring and the Drowning Family) can illuminate retribution and agape, even in contexts of epistemic ambiguity. I conclude with some brief reflections on the limits of deontology and how rules of rescue might be applied to immigration/emigration law. These reflections are largely inspired by Kaveny’s and my theological mentor, Paul Ramsey.

I. Karl Barth, Justice, and Bull in the Ring

A. Natural Law and Justice

Kaveny rightly stresses the extent to which Stanley Hauerwas agrees with Karl Barth’s rejection of natural law and related efforts to translate Christian ethics into or out of secular culture or universal reason (see her pp. 42–55). The distinctive gospel narratives of the life, death, and resurrection of Jesus must be unleashed from idolatrous servitude to democracy, capitalism, and any other temporal creed or institution. Like other critics of Hauerwas, I worry that he sometimes replaces Barth’s Christo-centricity with a problematic ecclesio-centricity. But I endorse Barth’s and Hauerwas’s shared conviction that Christianity (like Judaism) is fundamentally theocentric, rather than anthropocentric: founded on the holiness of God, rather than human eudaimonia. That said, Hauerwas is palpably disappointed that Barth let go of the pacifism he seemed to embrace after World War I and affirmed the justice of the war against Adolf Hitler and Nazism. That affirmation is indeed striking. Barth does not reluctantly endorse the necessity of the Allied response in World War II; he approximates what I have elsewhere called “the loving war tradition.”1 He insists that the war against fascism was actually a righteous cause willed by God and undertaken partly out of agapic concern for Hitler himself. As Barth says, “It would not have been good for Hitler himself if he had been allowed to run his course unhindered in 1939. It would not have been good for the German, the Italian or the Japanese people if the rest of the world had submitted to the senseless aspirations with which they entered the war. The war against them is in fact also being waged for them.”2

Hauerwas has contended that Christians should not talk so much about justice,3 but I want now to praise justice as a crucial ethical good. It remains subordinate to agape, in my judgment, but Paul Ramsey was correct to insist that it not be dismissed, much less ridiculed.4 Just actions and attitudes are often the instruments of love of neighbor (and God), as I hope to help show now via a case study.

B. Bull in the Ring

“Bull in the Ring” was a ritual my high school football team practiced every fall weekday in which one player was encircled by ten other players. The players on the outer ring were each assigned a number, and the coach would call out numbers one at a time and more or less at random. Upon hearing his number, the outer guy would run full speed at the guy in the center and put a block on him. The middle man, in turn, had to wheel around and try to “shed” the on-comer with a forearm shiver. Now, the unspoken rule was that if the man in the middle is knocked down by the initial collision, one is not to continue hitting him. He is to be allowed to stand back up and gather himself.

It happened one afternoon that an overweight, Jewish boy named Gottlieb was the ringed “bull.” The coach called out the number of Flanagan, a noted bully and anti-Semite. Flanagan charged and, predictably, flattened Gottlieb, but then he laughed and kept smacking “the Jew boy” as he tried to get up. This went on for a few minutes, with everyone, including the coach, looking on in silence. Suddenly, the biggest, strongest, and most amiable player on the team—named Hendershot—bolted at Flanagan and “cleaned” him, as we used to say. Hendershot then simply stood over Flanagan, as if daring him to try to stand. The latter literally crawled on his knees back to his place on the ring. The coach did not say anything, none of the players said anything, but I remember thinking: “Holy Mother of God, that is the most morally beautiful thing I have ever seen!” To this day, the incident remains my paradigm of (retributive) justice. I was not very good at football, but it did teach me some virtues.

One might be tempted to see this incident as flowing from and reinforcing a “male script” of status and domination—“bull in the ring,” for heaven’s sake!—but in fact it is just the opposite. Hendershot, like many on the outer ring, including myself, felt indignant at Flanagan’s effort to humiliate Gottlieb. What distinguished Hendershot was his taking robust action to stop the cruelty and bravado. I see no point in denying that his act was retaliatory, but it was entirely justified and even heroic. It constituted what we called at the time “instant karma,” in a context where no recourse to criminal law was plausible or even possible. Hendershot was a Christian, so here was a “disinterested” third party unwilling to be a bystander in the midst of ethnic injustice. Everyone present was aware of the subscript of religious bigotry, which made it all the more impressive to see a Gentile stand up for a Jew.

Anger can certainly become vindictive and counterproductive; like eros, ire is a volatile and potentially dangerous emotion. But, as Bishop Butler held, anger can also be a key goad to and expression of human solidarity. It depends on the circumstances and the details of motive, means, and consequence. If Hendershot had decked Flanagan in an effort to show off, if he had hit the bully and then run away, or if he had merely wanted to hurt or demean him, the morality of the affair would have been entirely different. What made it an object lesson was precisely that Hendershot had nothing to prove and turned Flanagan’s own behavior back upon him didactically. (Heaping “coals of fire” on others can sometimes prick their consciences, as Mahatma Gandhi demonstrated in India.) Everybody already knew that Hendershot was the best player on the team—no “status-injury” or “impotence” here—and his coming to Gottlieb’s rescue was designed both to save the victim and to edify the victimizer. As it turned out, it did exactly that. At the end of the practice, Gottlieb did not have to go to the infirmary, and Flanagan apologized to the whole team.

To echo a question Paul Ramsey used to ask his students,5 would Hendershot have been a better Samaritan if he had waited until the anti-Semitic assault were over? No. Was Hendershot’s action admirable only because it was inspired by concern for another? Would he have been base or culpable if he had retaliated in self-defense? This is less clear. Saint Augustine famously argued that war is just only if waged on behalf of innocent others, that violence in one’s own defense is libidinous or prideful.6 Should his first-person pacifism be applied to anger as well—call it “first-person serenity”—such that one may get mad in the cause of friends, neighbors, and even strangers, but never of oneself? Such a philosophy might go a long way toward curbing the abuses of anger, encouraging individuals to let insults and even attacks just “roll off.” Voluntary nonretaliation in one’s own case can be admirable and instructive, and Jains and Bodhisatvas make a formidable principle of it. Yet I cannot see the denial of personal anger as a categorical imperative, binding on everyone under all conditions. It may be an act of charity for a victim to forgive and to forego personal retribution, but forgiveness is not a right of the victimizer nor a requirement of justice. (Even Jesus does not always “turn the other cheek”; see John 18:22–23.) Leaving aside whether self-respect requires that one eventually “stand up for oneself and fight back,” the more pressing question is: What does love of neighbor demand from us?

II. Søren Kierkegaard, Love, and the Drowning Family

A. Supernatural Love and Preferential Desire

In Works of Love, Kierkegaard combines a paean on agapic love with a critique of social justice. I have discussed SK on justice at length elsewhere,7 so I focus here on his views on love. SK is deeply wary of preferential loves (eros, philia, storge) and directly contrasts them with “Christian love” or “true love.”8 He notes that “Christianity has misgivings about erotic love and friendship simply because preferential love in passion or passionate preference is actually another form of self-love.”9 Indeed, eros and philia are “the very peak of self-esteem, the I intoxicated in the other I”; even the most beautiful purely human love “has something thievish about it,” since it is centrally concerned with how the loved object’s perfections serve the interests of the lover.10 Amor sui also comes in for hard knocks, with SK pronouncing self-love “reprehensible” and declaring that “it is Christianity’s intention to wrest self-love from us human beings.”11 Kierkegaard contends that human beings are made by God to engage their Creator, their neighbors, and themselves with an unconditional and inclusive love that the New Testament calls agape. Such Christ-like love requires divine grace, but it takes it as a duty to God to “build up” the other without demanding reciprocity and even to the point of “sacrificing” the self.12 Everyone has equal access to this highest love, and everyone is equally the neighbor to be loved.13

Love the beloved faithfully and tenderly, but let love for the neighbor be the sanctifying element in your union’s covenant with God. Love your friend honestly and devotedly, but let love for the neighbor be what you learn from each other in your friendship’s confidential relationship with God!14

The Christian may very well marry, may very well love his wife, especially in the way he ought to love her, may very well have a friend and love his native land; but yet in all this there must be a basic understanding between himself and God in the essentially Christian, and this is Christianity.15

To love yourself in the right way and to love the neighbor correspond perfectly to one another; fundamentally they are one and the same thing.16

B. The Drowning Family

Imagine you are on a dock seeing your family off on a cruise you are unable to take. What would you do if the boat suddenly capsized, throwing your spouse and two children into the water fifty yards to your left and twelve strangers into the water fifty yards to your right? All of the stunned former passengers are drowning, but you have just enough time to save one group, but not both. How would you balance special relations to particular individuals dear to you with universal love of all neighbors? That is, who would you rescue and why? And how might Kierkegaard respond to these same queries?

Many students, often the majority of the women in the class, protest that it would be unnatural or even wicked not to prefer your spouse and children to perfect strangers. “Does not one’s status as spouse and parent carry with it specific duties to protect and care for one’s family members?” they ask. “Concrete relations matter more than general principles,” they insist. I point out that the dozen strangers outnumber the three family members and that the twelve are someone’s husband or father, wife or mother, son or daughter. I emphasize that, for Kierkegaard, “true love is self-denial’s love,”17 and I volunteer that he might well see saving the strangers as a form of bearing the cross in which a Christian subordinates his or her personal feelings to love the larger number of neighbors. Most telling of all, I remind the students that Jesus himself declared: “Whoever comes to me and does not hate father and mother, wife and children, brothers and sisters, yes, and even life itself, cannot be my disciple” (Luke 14:26). “Do we have a conflict here of familial justice and Christ-like love?” I ask, adding, “And how might the positive law look at a situation like this?” “Is saving anybody an appropriate legal mandate?” I then acknowledge that I myself would probably prefer my kin, but I grant that I could find it permissible (even supererogatory) for someone to take the more “selfless” tack.

That said, I accent the word “could” in the preceding sentence. In discussing the drowning family scenario, many of the limits of “quandary ethics” emerge, as identified by Hauerwas and Burrell and rehearsed by Kaveny (56–57 and 63–64). It quickly becomes apparent that crucial elements necessary for a wise judgment are missing: one’s particular motive, the character of the relation to one’s spouse, the ages and expectations of one’s children, a possible sense of the will of God, etc. If I were to rescue the strangers because I loathe my wife or am indifferent to my kids, for instance, that would not be virtuous. Alternatively, if I have discussed in advance such a tragic contingency with my wife and adult children and know that they would want me to save the strangers as fellow children of God, this could be a profound act of religious faith as well as human solidarity. Part of my point in raising the drowning dilemma is to highlight the problems with abstract or unusual cases, but I still defend the analytical exercise as having pedagogical value.

Jesus’ parables and allegories frequently focus our attention on a stark and simplified issue that requires a quick and decisive response, often in the context of uncertainty. We are invited to project ourselves into an imaginatively constructed scene, with some but not all relevant details given. Think of the parable of the Good Samaritan (Luke 10:25–37), in which the ambiguity of the identity of the man beaten, robbed, and stripped is part of the poignancy of the story. The Samaritan helps an unknown stranger who is quite likely a Jew and thus a member of an enemy tribe that hates him. The Samaritan’s decision is not an isolated choice, but rather an expression of his character and beliefs, yet we are not given an account of his motives as such or of the aftermath of the story. Consider also the parable of the Lost Sheep, in which the listener is asked to forget about numbers and to identify with the shepherd who leaves the ninety-nine and risks going after the one. There is a danger here of promoting “an impoverished and distorted understanding of human persons and the particularities of their lives,” as Kaveny puts it (63), but simplicity and vividness have their place. Even the need to “fill in the blanks” can serve a purpose if it moves us to scrutinize our own life narratives and how they balance justice and love.

Conclusion

The elusiveness of perfectly general laws and the correlative need for practical wisdom in both appealing to and departing from tradition is a central theme of Cathy Kaveny’s Ethics at the Edges of Law. One edifying upshot of the Bull in the Ring and the Drowning Family scenarios, together with the Good Samaritan and Lost Sheep parables, is recognizing the specific difficulty of generating a universal rule of rescue binding on all people at all times. Who and how to rescue or relieve (a.k.a. “redeem”) is the common motif of all four stories; and Jesus, Barth, and Kierkegaard can be read as radically demoting tribal and familial loyalties in favor of anonymous and needy neighbors. Our priorities in this regard are being explicitly tested today with reference to immigration law.

Putting our still divided house in order would mean, in my estimation: (1) reparations for slavery (forced immigration), (2) reform of elective abortion policy (the blocked immigration of needy refugees we ourselves have created), and (3) no “emancipating” the sick, the elderly, or “the unwanted” with the “resettlement” of active euthanasia (forced emigration from life). I do not have the space to argue for these three positions here, but I have done so in another context.18 Suffice it to say that, for Christians, there are duties of charity that transcend strict duties of justice without falling below them. As Paul Ramsey underscored towards the end of his career, for the followers of Jesus, there are obligations to save and serve others that the wider secular culture does not recognize morally or legally. I agree with Kaveny that the “sea change in Ramsey’s approach to the secular legal system [evident in his Ethics at the Edges of Life] . . . is attributable to Roe v. Wade,” its “giving women the unfettered choice to kill the unborn life within them” (146). For both Ramsey and Kaveny, the limits on a purely deontological ethic of rules do not leave religious believers with mere relativism or a crude worshipping of the god “Autonomy.”

With its emphasis on how Christian ethics might fruitfully engage US legal thought, Cathleen Kaveny’s Ethics at the Edges of Law might seem, at first glance, to have limited appeal to ethicists working outside of the jurisdiction of the United States. However, notwithstanding the exclusive focus on this context, both the general argument that Christian ethics has much to gain from a rigorous engagement with US legal theory, and the substantive debates through which this thesis is displayed, hold significant interest for scholars working in different legal jurisdictions and with alternative political arrangements vis-à-vis the relationship of religion to politics and vice versa.

There are many reasons why this precise intersection of Christian ethics and US legal theory has a resonance beyond the scope of the US jurisprudential context. In the first place, arguably, no other country has produced such a rich interdisciplinary reflection on the intersection of law, religion, and morals played out in a multidimensional legal system and in a pluralist religious context. The prominence of US scholars and themes in the field of theological ethics around the globe is also a factor, and although I cannot assess whether there has been a comparable dominance of US legal scholarship globally, American legal theory certainly has a considerable reach in the Anglo-Saxon world of common law. In recent decades one can see the formative significance of this interdisciplinary US-focused conversation most especially in relation to the issue of religious freedom, its limits, and the prospects for its realisation in democratic societies. This is a question that has dominated the engagement between the American legal tradition and Christian ethics in the United States for more than four decades, and it now has extensive currency around the globe. Moreover, its impact is particularly pronounced in relation to the contested issues of reproductive rights, marriage equality, and end-of-life decisions, especially where societies are grappling with the extent to which the religious or conscience-based objections of individuals and communities can be accommodated in the context of a pluralist polity, and where Christians have to decide how best their values are to be expressed in such a context.

In Europe and around the globe, much of the political discourse about religious freedom and trends in religious freedom litigation seem to be taking their cue from the United States, in both style and substance. This ensures that US legal and theological argumentation (and their interface) has an impact on the politics of religion internationally. For example, in Ireland in 2018, the presence and impact of transnational, US-based, interdenominational religious pro-life groups was a focus of comment and controversy during the campaign to repeal the 8th Amendment.1 Indeed it provides a particularly salient example of Olivier Roy’s explanation of how local expressions of religion, especially political expressions of religion, are transformed by both secularisation and globalisation.2 Thus in Ireland the debate about repealing the 8th Amendment has adopted a US-style framing of the issue in terms of the “culture wars”—terminology that only recently entered Irish political discourse. However, although it is new to the context, the “culture wars” motif was evident in the rhetoric and forms of organization during the Repeal the 8th Campaign itself (through 2017 and 2018), in the resistance and protest that accompanied the introduction of abortion services early in 20193 and is now visible in the emergence of new civil society organizations with a focus on protecting complicity-based conscience claims. Similar trends can be seen in the UK and Australia, and to a lesser extent in the European continental context.

This topic is central to Kaveny’s engagement with Paul Ramsey’s work in “Covenant Fidelity and Culture Wars” (ch. 6), and with Robert E. Rodes Jr. in “Juridical Insights and Theological Disputes” (ch. 7), but it is also a thread that runs throughout the entire book. However, Kaveny is not simply concerned with delineating where certain important lines can and should be drawn and by whom, although she acknowledges that these are important questions on which she has much to say. Rather via her unique approach, wherein she pursues a series of overlapping methodological and substantive conversations between US legal thought and the seminal works of major theologians, she sets the direction for a comprehensive political ethic that can better conceptualise the relationship between Christianity and the law, and ultimately between religion and politics. Thus, when Kaveny highlights how aspects of US legal theory can support the agendas of both Stanley Hauerwas and Jeffrey Stout this question of how Christians are to relate to the institutions of the state is centre stage. Additionally, when she engages the works of Gene Outka and Margaret Farley she is interested in demonstrating how the practice of law can assist theologians as they grapple with the twin demands of love and justice in the concrete circumstances of daily life.

Kaveny does not explicitly declare that her ultimate interest lies in developing a political ethic. Nonetheless, her uncommon sense of the ways Christian ethical analysis might be enriched by US legal thought, and of how particular culs de sac might be avoided, point to a comprehensive constructive task of a political ethic in the making—a political ethic that is compassionate and generous in its interpretations of the worldviews of “the other” and that has confidence in the shared deliberative practice of the legal tradition. Moreover, given how the rhetoric and politics of the US culture wars have been exported around the world, it is of interest to many that a less toxic, more productive account of the interface between Christian ethics and the institutions of a democratic state be articulated.

Kaveny’s analysis of the evolution of Ramsey’s thought, which has had such a formative influence in framing the parameters of what would later become “the culture wars,” is particularly enlightening in this regard. Much of Kaveny’s critique revolves around what she views as Ramsey’s flawed expectations of secular law in its didactic, punitive, and protective modes, expectations that were articulated through the lens of his increasingly pessimistic assessment of “the moral tenor” of American culture (especially in the medical field). Ramsey was committed to the view that secular law has an important role to play in forming a protective fence around certain moral values, but his increasing pessimism about American society’s commitment to those values led to his disenchantment with American positive law’s potential to provide the external basis for covenantal relationships. This negative assessment became the blueprint for social and religious conservatives in their approach to law and, according to Kaveny, Ramsey’s “three demands of secular law became the demands of conservative cultural warriors on matters such as abortion, homosexual relationships, and withdrawal of artificial nutrition and hydration and even contraception” (159).

As she reckons with Ramsey’s legacy, Kaveny opens a space wherein a different kind of conversation might be had about what Christians can expect from secular law and how the different functions of law might be understood today. For example, the view that secular law has an important role to play in forming a protective fence around certain moral values is widely shared, and not only by groups described as “the cultural warriors.” Advocacy on behalf of illegal immigrants to ensure that their basic rights under international law are respected, or for a living wage, or for a minimum threshold of social security and healthcare, also carries with it an expectation that secular law will provide a protective shield around certain vital (but often disputed or vulnerable) moral values. For Ramsey the temptation to wrongdoing operative in the medical and societal culture of the day was expressed in what he saw as a disregard for interests of “the useless, defective or dying” (161) and this temptation persists today, albeit in other environments and with different manifestations. Indeed, there are strong echoes between Paul Ramsey’s concern for Joseph Saikewicz (an institutionalized adult with a severe intellectual disability, who was the subject of a well-known end-of-life legal case, analysed by Ramsey—and in turn by Kaveny) and Giorgio Agamben’s analysis of the plight of millions of fellow human beings who, today, inhabit zones of indistinction. They may be migrants, or incarcerated, or the destitute who exist in a twilight world in our affluent and globalised cities across the world,4 but they too often fall into the category of “the useless, defective or dying.” Indeed, Ramsey’s anxiety that the subjectivity and dignity of the vulnerable might be erased via the institutions of the state, and that the law might fail to protect their interests, is a worry that many Christians and other citizens share. The concern of the culture warriors has been focused on the unborn, or individuals in a PVS, while for others the concern has been for the impoverished and the excluded who lack access to basic social goods. Their respective analyses of the values that are at stake on any given issue may differ, but their hope that love might transform law is often shared.

Kaveny draws on insights from legal theory and practice to challenge what she regards as Ramsey’s flawed expectations of the law and to insist that it is ill-advised and counterproductive to have too narrow or reductive a conceptualisation of the values to be protected or to fail to see their interconnections. She argues that Christian ethics must widen the horizon within which questions of law and policy are considered, that it must take a broader view of the nature of the questions requiring ethical analysis and that it must recognise that all ethical questions are ultimately questions of social ethics. These insights, together with the cumulative weight of her engagements with other theologians and legal scholars (i.e., Noonan, Hauerwas, Stout, Outka, Farley, Rodes, Kasper, Grissez, and Englehardt), create the foundation for a political ethic that, while being clear-sighted and rigorous in its analysis, is also generous in its assessments of the concerns of those with whom she disagrees.

The culture wars in the United States show no signs of abating, nor does the expansion of their influence overseas. In such an environment the temptation is retrenchment. Yet Ethics at the Edges of Law demonstrates that it is possible to envisage a political ethic that expands rather than forecloses the conversation, and where the encounter between theological ethics and legal theory can chart a path out of the current impasse.