Symposium Introduction

Cathleen Kaveny has never liked one-sided conversations. Yet for far too long, she alleges, the conversation between Christian ethics and the American legal tradition has been painfully one-sided. Whereas Christian ethicists have reliably regarded philosophy as a privileged dialogue partner, they typically treat the field of law—on the rare occasions when they engage it at all—as if it possessed simply instrumental value. Often enough, she suggests, we theologians and ethicists proceed as if the substantive and interesting moral reasoning were reserved just for our disciplines, with the law merely a means for applying, and enforcing, moral judgments arrived at elsewhere (namely, by us). Rarely do we ask what we might have to learn from the legal tradition, or how it might inform our moral judgments. Indeed, to think too much like a lawyer is to invite the accusation of “legalism”—a point certainly not lost on Kaveny.

In Ethics at the Edges of Law: Christian Moralists and American Legal Thought, Kaveny seeks to redress this situation, and makes a powerful case for law as an indispensable conversation partner to Christian ethics. Drawing upon the tradition theory of Alasdair MacIntyre, she argues that the American common law constitutes a well-functioning moral tradition in its own right. That is, it amounts to an “applied and enculturated philosophy” (xv), an ongoing, embodied moral argument, with its own particular goods, virtues, and formative practices, as well as its own distinctive modes of practical reasoning. As such, the tradition of American common law is not so unlike the various theological traditions within which Christian ethicists more typically work. But the legal tradition has an additional dimension which Christian theology does not. Because it is tasked with the making and interpreting of law, and thereby with directing both the coercive power of the state and the behavior of concrete social actors, legal reasoning is uniquely accountable to the complexities of social reality. It is always tested by practice. And therein consists perhaps its greatest value for ethics.

A lawyer herself, as well as a Catholic ethicist, Kaveny is not content to pitch her argument in general or abstract terms; she recognizes her task as one of effectively demonstrating the law’s value for Christian ethics. The book’s three major sections accordingly correspond to three different kind of “demonstration.” In part 1, Kaveny shows how particular elements of the American common law tradition can develop and strengthen the constructive projects of three distinct sets of interlocutors: Catholic moral theologians committed to the authority of magisterial teaching; Protestant ethicists committed to maintaining the distinctiveness of Christian ethics without “withdrawing” from the world; and democratic theorists committed to interpreting democracy itself as a moral—and religiously plural—“tradition.” By contrast, in part 2, Kaveny uses individual legal cases to shed new light on the complex set of problems clustered together under the heading of “love and justice,” one of Christian ethics’ most abiding and vexed topics. Finally, in part 3, Kaveny employs specific insights from common law to clarify, and help resolve, several deeply contentious issues in both contemporary Christian ethics and the wider “culture wars”: the conflicts between religious liberty and non-discrimination against same-sex couples (and the larger issues of “church and state” entrained therein); the moral and ecclesial status of divorced and remarried Roman Catholics; and the widespread yet often contradictory polemics against “legalism” itself.

If Ethics at the Edges of Law is an argument for, and a demonstration of, two-way conversation between Christian ethics and the legal tradition, it is also profoundly “conversational” in another sense. Taking her cue from Paul Ramsey’s Nine Christian Moralists, Kaveny constructs each chapter as an engagement with a specific conversation partner: John Noonan, Stanley Hauerwas, Jeffrey Stout, Gene Outka, Margaret Farley, Robert Rodes Jr., Walter Kasper, Germain Grisez and H. Tristram Engelhardt Jr. (taken together), and finally Ramsey himself. Most of these figures represent interlocutors, in several cases mentors, with whom Kaveny has long been in dialogue. Though her individual engagements range from appreciative appropriation (Noonan, Rodes) to intensive critique (Ramsey), even in her strongest disagreements Kaveny’s attitude toward her conversation partners remains deeply respectful, grounded in a desire to understand and value the genuine insights in their positions. Particularly in the book’s later chapters, one senses her frustration with the polarized debates and stagnant impasses of the “culture wars,” both within and beyond the academy, and her desire to create space for more humane, productive, and rigorous conversation. Kaveny’s consistent ability to find resources in the legal tradition for enabling, and modeling, that better sort of conversation is no small part of what makes her larger case compelling.

The five contributors to this symposium bring further perspectives and fresh questions to the many conversations Kaveny has already begun with her book. Elisabeth Kincaid, in her opening essay, reflects on the issue of conversation itself, and specifically on the question of how Christian ethicists should talk to each other. In what ways, she asks, are the modes and contexts of discourse that inform Christian ethics like and unlike those of the legal tradition? And what does this comparison tell us about the promise and limitations of Kaveny’s project as a model for Christian ethicists’ own discourse? Among the key differences Kincaid identifies is the absence in Christian ethics of a defined authority structure analogous to that in the legal field, with its clearer shared canon of interpretive texts and its established hierarchy of authoritative interpreters (judges).

Questions of canon and authority lead directly to the next two contributions by Steven Smith and Craig Ford, both of whom challenge Kaveny on the subject of “tradition,” and which voices count within it. For his part, Smith greatly appreciates Kaveny’s MacIntyrean account of tradition-based reasoning, and her treatment of American common law as a moral tradition. Yet he also worries that Kaveny does not adequately reckon with the depth of conflict that exists both between the mainstream of contemporary American legal thinking and Christian ethics, and within the Catholic moral tradition itself. Furthermore, he argues, by attempting to move beyond the polarizations of the “culture wars,” Kaveny in effect fails to take seriously the possibility that one side might be right. If Smith’s critique reflects his sympathy for the “conservative” side of the culture wars, Ford’s offers a “progressive” counterpoint to it. While applauding Kaveny’s commitment to thinking within a tradition for distinctly progressive purposes, Ford contends that any attempt to define a tradition risks prematurely closing its boundaries, and thus excluding those historically marginalized voices from which that tradition might most need to hear. To Kaveny and those inclined toward her project, he directs a pointed question: might the white supremacy, patriarchy, and heteronormativity embedded within both of the traditions Kaveny valorizes demand not only an interrogating, but a “dis-orienting,” of the concept of tradition itself?

Our last two contributors carry the conversation in new directions. Timothy Jackson’s essay takes up the topic of Kaveny’s three middle chapters, namely, the relationship between love and justice. Bringing his own set of interlocutors (Barth and Kierkegaard) and exemplary cases to bear on Kaveny’s discussion, and recalling a variety of themes dear to Paul Ramsey (a beloved mentor to both Kaveny and himself), Jackson meditates on the limitations of general rules, the compatibility of agape and retributive justice, and the tensions between universal and particular obligations internal to love itself. Finally, in her closing response, Linda Hogan invites us beyond the immediate scope of Kaveny’s book to consider two larger questions raised by her project. Writing from a European and trans-national perspective, Hogan first asks what it might look like to carry the dialogue Kaveny has started between law and Christian ethics beyond the borders of the US legal system. Second, she wonders, to what extent does Kaveny’s project in Ethics at the Edges of Law amount to a political ethic, perhaps a political theology? In her own reflections on both questions, Hogan holds out hope that by initiating a richer conversation between law and theological ethics, Kaveny has given her readers—whatever their national context—important resources for beginning better conversations among ourselves, especially across the lines that divide us.

Elisabeth Kincaid

Response

Advocacy for Ethicists

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.


  1. See Bob Noone, “Mommas Don’t Let Your Babies Grow Up to Be Lawyers,” YouTube video, 3:50, uploaded September 3, 2015, https://www.youtube.com/watch?v=MNtkOrl6LYA.

  2. Dondi Properties Corp. v. Commerce Savings & Loan Ass’N, 121 F.R.D. 284, 288 (N.D. Tex. 1988).

  • Cathleen Kaveny

    Cathleen Kaveny

    Reply

    Response to Elisabeth Kincaid

    I am very grateful to Elisabeth Kincaid for her response for three reasons. First, Kincaid and I share a common vocational path. Both of us are lawyers who practiced for several years before entering the academy. Both of us have also subjected ourselves to the long and humbling path of earning a Ph.D. in ethics. She is deeply familiar with the two traditions I am trying to connect. Second, Kincaid’s response focuses on rhetoric, a subject whose relationship to law and ethics I believe is increasingly important. Third, and most important, Kincaid shares my worries about the increasing fissiparousness of the field of Christian ethics. While her remarks have not assuaged these worries about our field, I hope they have allowed me to map them with more precision.

    I have written extensively about the different types of religiously infused political rhetoric in my earlier book Prophecy Without Contempt: Religious Discourse in the Public Square.[1] Kincaid’s response to Ethics at the Edges of Law has prompted me to wonder if the discourse of Christian ethics merits similar scrutiny. What are the dominant rhetorical styles of Christian ethics today? I have come up with this provisional and doubtless partial list.[2]

    • The ethicist as judge. This seems to me to capture the style of the old style Roman Catholic moral manualists, who interpret and apply a fixed number of moral principles to address moral dilemmas, reaching more-or-less definitive decisions.
    • The ethicist as cartographer. This style invokes the typological approach of Ernst Troeltsch and H. Richard Niebuhr, and James Gustafson and his students. While striving to be fair and objective, the author’s own normative views are frequently embedded in the descriptions. It is no accident, for example, that most people who read “Christ and Culture” wants to place themselves in the category of “Christ transforming Culture.”
    • The ethicist as prophet. Common in liberationist approaches, this style characterizes ethicists denouncing economic, racial, and sex-based injustices, in statements, pamphlets, articles, and books. Yet the style also transcends the liberal and conservative divide; it is found in the work of many pro-life activists, as well as anti-climate change activists.
    • The ethicist as policy analyst. This approach is common in fields of applied ethics, such as nuclear ethics, health care ethics, economic ethics, and the ethics of climate change. It analyzes both the moral implications and practical consequences of various laws and policies.
    • The ethicist as storyteller. I mean to include here not only narrative theology and ethics, which in my view has been commended more than it has been practiced, but also many histories of ethics, whose normative point is encapsulated in their account of change and development.
    • The ethicist as social critic. Many Christian ethicists operate in the mode of public social critics, often employing immanent criticism in order to expose and address social problems without drawing upon controversial metaphysical views or transcendental methodologies.

    How do all these forms of rhetoric interact with each other? This is a question that I find deeply puzzling. I am not sure how they all intersect. Perhaps the discursive tensions contribute to the increasingly widespread sense that Christian ethicists are talking past each other. It is true that some forms of discourse may be more aligned than others. A cartographer can take account of prophetic discourse without engaging in it herself. A judge may incorporate narratives in justifying his judgment. Yet even in these cases, the alignment may be uneasy and even one-sided. Prophets might well resist being encapsulated into typologies, and narrative theologians might well resent the normative closure that judges impose on their stories.

    Where does advocacy fit into this account of rhetorical styles in Christian ethics? I am also not sure of the answer to this question. As Kincaid notes, legal advocates make a zealous case for their client’s interests. In so doing, they need to give as complete and compelling account of the controversy as they can, responding to their opponent’s objections in the process. Legal advocates do not assume the unbiased position of power of the judge, whom they hope to persuade. Nor do they take the sweeping, seemingly disinterested view of the field offered by the typologists. Furthermore, legal advocates typically don’t engage in prophetic indictment as usually practiced by ethicists. Fiery language risks alienating jurors and judges alike. Good advocates incorporate policy analysis, narratives, and social criticism. Yet they do so in single-minded pursuit of a goal: ensuring that their client receives a favorable resolution of their case.

    Kincaid is right to think that advocacy is a good way to describe the methodology I employ in my chapter on Walter Kasper. In fact, I almost considered him my “client” in writing it. Kasper argued that in some circumstances, Catholics who divorced and remarried without benefit of an annulment could receive communion. Since murderers are able to repent and receive communion, so too should those who violate their first marriages by contracting a second one. Kasper’s critics pointed out the weakness in this argument. The murder was a completed offense, so repentance was possible, while those in second marriages commit the ongoing sin of adultery. But many critics were not only sharp, they were vituperative. I wanted to come to his defense.

    My goal in the chapter was to help Kasper respond to critics by showing how Catholic moral thought could reasonably view the offense against a first marriage as a completed offense, thereby enabling repentance and the reception of communion. Precisely because it was a piece of quasi-legal advocacy, it was trying to make a narrow but strategically powerful point. Kincaid is right to note that I don’t consider sacramental marriage in the argument. My approach was collateral, not direct. Catholic doctrine of sacramental marriage does not operate independently of the notion of natural marriage, or the notion of marriage as a contract, which is indebted to Roman law. So, for example, sacramental indissolubility does not attach if the requirements of consent are not met. I am simply trying to draw on secular legal notions to argue that the sin against the first sacramental marriage is completed, clearing the way for a second, natural marriage that is neither sacramental nor sinful, like the Eastern Orthodox hold.

    Can ethicists effectively function as advocates? Kincaid perceptively identifies a key challenge. After contesting lawyers make their cases, an authoritative decision-maker issues a judgment. When judges decide questions of law, their decision enters the tradition, providing a new source of authority and a basis for new arguments over new questions. Old-fashioned Catholic moral theology worked that way. Magisterial documents provided authoritative texts and clear precedent, settling disputes along the way. Now, of course, disputes in the field of Christian ethics (or even moral theology) are not settled in that manner. They are settled, it seems, almost by electron field. A certain consensus seems to develop. Some questions are abandoned as other questions develop. I am not sure that is a good thing, because nothing prevents an old dispute from arising in a slightly different form years later.

    The field of Christian ethics needs to pay more attention to questions of discourse. What is the relationship between rhetoric and substance? How do our rhetorical choices as ethicists affect our capacity as communicators? Who do we think is our audience, and how do we need to frame our interventions so that they are best able to hear what we want to say?

    That set of questions about rhetoric brings us to a more fundamental issue: What are Christian ethicists, anyway? We may use the language of law—but we aren’t lawyers. We may offer opinions on controverted moral questions—but we aren’t judges. We may decry injustice—but we aren’t prophets. We may revere saints as role models—but we are not moral authorities by virtue of our own holiness. But we are teachers. We have been given native intelligence and training to draw on the resources of the tradition. We are blessed with the time to put both into conversation with other sources, in the hope of addressing the burning moral challenges of the time. As Christian ethicists, we help people absorb the world they experience into the world of the crucified and resurrected Jesus, whose story governs the biblical texts and gives life to the sacraments. We give our readers and students the intellectual tools (and moral tools?) they need in order to address the challenges they confront. We give them what we can, and we let them go in freedom, because we are not, in the end, judges, prophets, or authorities.

    [1] Cathleen Kaveny, Prophecy without Contempt: Religious Discourse in the Public Square (Cambridge, MA: Harvard University Press, 2016).

    [2] For a slightly different framework, see James M. Gustafson, “Varieties of Moral Discourse: Prophetic, Narrative, Ethical, and Policy,” in Calvin College and Calvin Theological Seminary, Seeking Understanding: The Stob Lectures 1986-1998 (Grand Rapids, MI: Wm. B. Eerdmans, 2001): 43-76.

Steven Smith

Response

Law and Ethics within a (Conflicted) Tradition

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).

  • Cathleen Kaveny

    Cathleen Kaveny

    Reply

    Response to Steven Smith

    Many thanks to Steven Smith for his constructive and critical engagement with Ethics at the Edges of Law. I greatly appreciate his incisive remarks. But I recognize that we are coming from very different perspectives, a fact that makes it harder for me to respond to his criticisms. I also wonder if we are talking past each other. He wants more direct engagement with the culture wars, and perhaps even more direct criticism of what he sees as secular threats to Christianity. But I don’t accept the culture war account of the world. And I think the best way to respond is not directly, but indirectly, by providing a different way of viewing things.

    Audiences and Purposes

    Smith suggests that one goal of this book is to make the case to secular law professors that they might profitably engage the Christian tradition. While I would be very happy if that was a result of the book, it wasn’t among my major purposes in writing it. If I were trying to make such a case, I would have written a very different book. I would have dedicated my chapters to a range of legal theorists and influential judges, showing how their work could be enhanced by engagement with aspects of Christian moral and political thought.

    Instead, I focused on a range of influential Christian moralists. Consequently, the purpose of this book is more accurately captured by the other goal that Smith identifies, which is to show Christian ethicists how they might profitably engage legal thought. He worries that this is a fool’s errand because the moral anthropology and epistemology of so much contemporary legal theory is hostile to Christian commitments. I just don’t share those worries. Christian ethicists have long been accustomed to fruitful engagement with secular philosophy, despite conflicting ultimate commitments. I don’t see why they can’t approach law in the same manner. The whole Constantinian project, after all, was built on fruitful albeit critical engagement with Hebrew scriptures, Greek philosophy, and Roman law. The key is to exercise discernment. Not everything can be accepted. But not all must be rejected.

    Moreover, as Smith emphasizes, I am trying to focus my fellow ethicists’ attention on case law, not legal philosophy. Most judges are not Nietzscheans. Even if they are, they tend to decide many cases in the same way as Christian judges do. Having clerked on the large and unwieldy US Court of Appeals for the Ninth Circuit, I was more impressed by the agreements than the disagreements. In most cases, judges coming from very different ideological perspectives agreed on the proper resolution. Their converging viewpoints exemplified a real-world Rawlsian “overlapping consensus.”

    By shifting attention to case law, I also wanted to move beyond methodology to practice. I have grown impatient with methodological throat-clearing in theology, perhaps because my era in graduate school was dominated by an obsession with methodological foreplay. For example, many scholars argued for the superiority of “narrative” theology and ethics without descending to the detail of actual narratives. I want to show, not just tell. I build my case for positive engagement between theology and law by accumulating a range of examples. To do so, I focused on concrete day-to-day disputes from the common law, rather than abstract disagreements about vague constitutional concepts such as “free exercise of religion.” I think highlighting the ordinary disputes successfully resolved by our legal system helps put the extraordinary disputes in some perspective. It thereby helps undermine, or at least complicate, the view that we are in the middle of a culture war. Which brings me to my next point.

    Culture Wars

    According to Smith, the biggest problem with the book is its “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.” I have three responses.

    First, I am afraid that Smith misreads me as a shrinking violet. Many of my columns in Commonweal have been devoted explicitly to resisting a culture war frame for religion and politics. My objections are at root theological—I think it’s dualist and that it leads to a new form of Donatism. But I have made plenty of ethical and political arguments as well. My first book, Law’s Virtues: Fostering Autonomy and Solidarity in American Life (Georgetown University Press, 2012), critiques the dichotomy between the culture of life and the culture of death, and argues for a more nuanced account of the relationship of law and morality in American society. My second book, Prophecy without Contempt: Religious Discourse in the Public Square (Harvard University Press, 2016), castigates the excesses of culture war rhetoric while retaining an important but limited role for prophetic indictment. My third book, A Culture of Engagement: Law, Religion, Morality (Georgetown University Press, 2016) engages in direct argument with conservative religious culture warriors on issues such as Obamacare. I have acquired my share of scars from participating in culture-war debates over hot-button issues. I wanted to do something different in this book.

    Second, I think Smith operates with an overly crude characterization of “Christian and secular trajectories.” What defines a “Christian” trajectory? What defines a “secular” trajectory? I don’t see either in their pure form, and I don’t expect to. On the one hand, (Catholic) Christianity encompasses natural moral knowledge, in part because of its strong doctrine of creation. On the other hand, up-to-date secularization theory recognizes that the background religious culture continues to exert an influence—secularized Islam is different from secularized Christianity. And I am not sure how secularized American culture is—70 percent of the population still identify as Christian. I suspect Smith thinks “Christian” views are conservative views on abortion, homosexuality, and gender roles, while “secular” views are liberal views on these matters. But all these issues are debated within Christianity, using sources internal to the tradition.

    Third, I think Smith has too narrow a notion of what it means to “engage with the question of cultural polarization.” I am engaging with that question, by attempting to destabilize its presuppositions. I don’t want to take a stand within the culture wars, I want to take a stand against the wars themselves. Consequently, my non-polemical style was deliberate. I am not making an abstract argument, but rather showing in some detail how there are many fruitful points of contact between common (not secular) culture and Christian ethics.

    Arguing with Ramsey

    Paul Ramsey was one of the most significant Christian ethicists of the twentieth century. Grappling with his work is not the easiest thing to do, because his thinking evolved over time and clarity of exposition wasn’t always one of his strong points. Tracing the evolution of his views of law is a major point of my chapter on his work; I trust that exegeting Ramsey constitutes a contribution to the field. Smith charges that I don’t respond to Ramsey’s arguments in Ethics at the Edges of Life. This charge puzzles me. As I noted in the chapter, Ramsey is very worried that incompetent patients may be subjected to invidious quality-of-life judgments in medical decision-making. He tries to protect them by putting up a fence: adopting a strict “medical indications” policy that is most reasonably read as eliminating virtually all non-medical factors in decisions about course of treatment. I responded that such a fence can do more harm than good to the very people he wanted to protect, such as Joseph Saikewicz. That argument may or may not be correct. But it is the sort of argument that Ramsey himself would find responsive to his concerns.

    As Smith notes, I argue that Ramsey’s arguments in Ethics at the Edges of Life anticipate the culture war arguments of the next generation. But let me be clear: I don’t think that if he lived today, Ramsey would be a culture warrior. Ultimately, his mind was too subtle for such a dualistic approach to reality. For example, Ramsey was pro-life, but he didn’t accept the view that a distinct human life begins at fertilization. The possibilities of twinning and combination in the very early embryo suggested to him that the early embryo have the necessary stability of identity to count as an individual person. His position made both pro-life and pro-choice activists unhappy. But Paul Ramsey was never one to toe anyone’s party line. For that reason, I have always admired him greatly, and consider him a role model to this day.

Craig A. Ford, Jr.

Response

Desiring Tradition at the Edges of Ethics and the Law

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?

  • Cathleen Kaveny

    Cathleen Kaveny

    Reply

    Response to Craig Ford

    Craig Ford has astutely noted that Ethics at the Edges of Law begins its argument for a fruitful relationship between Christian ethics and Anglo-American law by making a case that both should be viewed as tradition-based reasoning. That case is laid out in chapter 1, “Tradition and Development: Engaging John T. Noonan, Jr.” My basic claim is that Noonan’s writings “help show how both Anglo-American law and Roman Catholic moral theology have actually functioned as living traditions in the manner described by Alasdair MacIntyre: each is ‘an historically extended, socially embodied argument, and an argument precisely in part about the goods which constitute that tradition’” (3).1

    On the one hand, Ford appreciates tradition-based reasoning. On the other hand, he worries that it can lead to “premature closure of those traditions’ boundaries” and “loss of those traditions’ collective possibility to confront the structural evils” besetting them. Ford’s worries are important. I wonder if some of them can be assuaged by a thicker description of what is meant by “tradition.” According to MacIntyre, a tradition isn’t only a certain lineage of books and the arguments they contain—at most, they constitute its second-order reflection. A tradition is a three-dimensional form of life. It is characterized by certain practices, which enable its participants to develop the virtues that allow them to experience the goods internal to those practices. Institutions are also a key part of traditions—they pull together the external goods (money, power, and infrastructure) that allow fragile practices to continue through time. At the same time, love of these external goods can also corrupt the practices and its participants.

    Thinking about a tradition in a three-dimensional way, as fundamentally constituted by people engaging in practices, helps address the worry that traditions will prematurely close their boundaries. From the very beginning, for example, Christianity’s boundaries were porous. Jews, Greeks, and Romans mixed together. Eventually, the intellectual architecture of the Christian community incorporated elements of Hebrew scripture, Greek philosophy, and Roman law, in a sort of bricolage. It is true that some strands of the Christian tradition (e.g., the Amish) can insulate themselves, perhaps indefinitely, from broader social currents. But the whole Christian community, spread as it is around the globe, cannot do so. Those community members are the tradition-bearers. What is important, in my view, is that the second-order ethical reflection performed by moral theologians does not become isolated, narrow, and desiccated—and thereby fail to speak to or respond to the experience and needs of the actual community as it moves, constitutes, and reconstitutes itself through time.

    I am grateful that Ford appreciates the “progressive” nature of my appropriation of MacIntyre’s tradition theory. One of my objectives in this book is to show that MacIntyre’s work does not necessarily lead Christian theologians to hunker down in monastery-like communities semi-isolated from the world. I do not believe that is the case. In fact, I think MacIntyre’s Whose Justice? Which Rationality? (1988)2 must be read as a necessary supplement and corrective to After Virtue. In particular, it makes it clear that traditions move into error and correct themselves, borrow resources from other traditions to remedy their defects, and compete over long periods of time with respect to comparative epistemic and moral adequacy.

    At the same time, however, I am leery of the label “progressive.” It does not seem to me that either the Christian tradition or the American legal tradition can be said to demonstrate a firm and constant line of moral improvement. Sometimes, things get worse, for long periods of time. Racism, militarism, and sexism became entrenched practices for centuries in the Christian West. What is new is not always better, in either the church or the world. I think of the American eugenics movements in the early part of the twentieth century, which inspired the Nazis to implement their own diabolically murderous practices.

    My reflections on tradition give rise to two interrelated questions for Ford. First, what exactly does he think of the moral status of the Christian tradition, on the one hand, or the American legal tradition, on the other? Are they both irredeemably corrupt? I suspect that Ford does not believe that the Christian tradition is utterly bankrupt—he does, after all, identify as a Catholic Christian theologian. If my suspicion is correct, it gives rise to my second question: What then, is Ford’s own hermeneutic of tradition? How does he separate the wheat from the chaff in the Christian tradition? Is the touchstone the model of Jesus as presented in the New Testament? But we know that the first witnesses were not immune to sexism and racism, among other flaws. Is it a liberative ideal inspired by but not tied to the gospel? But if this gives him the case, what gives Ford the certainty that this liberative ideal is truly advancing freedom, rather than pursuing an illusion? More broadly, how, if at all, are our ideals judged by the gospel or the tradition?

    To put the point in another way: how do we know that a new movement or insight is actually “progressive” in the good sense? I think Ford is tacitly operating with a sophisticated notion of internal critique. He has made use of some aspects of the tradition to show that the developments he advocates are sound. As a Christian theologian, he has had to make an argument that the insights of queer theory and critical race studies both conform to and strengthen the core message of Jesus Christ. Moreover, he has to respond to counterarguments using the same sources. That is the work of the ethicist, as distinct from the prophet. It strikes me that words like “racism,” sexism,” and “homophobia” function in Catholic social ethics much like the term “intrinsic evil” functioned in the old manuals of moral theology. They are not premises, but hard-won evaluative conclusions of moral arguments based in tradition and experience.

    Does one have to reason within a particular tradition? No. One can advocate for conceptual or actual revolution. One can utterly reject the Gospels as the Good News of Jesus Christ. One can reject the entire American experiment. I myself want to distinguish between revolutionaries and radicals. Revolutionaries want to throw the whole system over. In contrast, radical theologians and legal scholars want creatively to tap into the roots of the tradition to argue for reform, even substantial and far-reaching reform. Martin Luther King was a radical, not a revolutionary, when he argued that the Declaration of Independence’s proclamation of the equality of all men was the key to reading the guarantees of the Constitution.

    I think both the Christian tradition and the American tradition are capable of being reformed, although both might require radical reform. There are resources in both for internal critique. Accessing and deploying those resources, in my view, requires some form of canon, because it is the canon that trains and enables the next generation to enter the discussion. One of the reasons I would like to see a (flexible) canon in the field of Christian ethics is to enhance the possibility of mutual conversation and even conversion among a broad range of Christian ethicists. I worry about the silos in our field. How do we talk to each other if we do not have a common language? And how do we respond to the fact that people tend to ignore what makes them uncomfortable or inarticulate? A capacious canon could help remedy the siloing problem.

    Ford refers to a canon as an “eschatological hope.” I think it is a practical tool in the ongoing struggle for peace and justice. The purpose of the canon in law school is to give budding lawyers the tools they will need to contribute to ongoing conversations about justice, policy, and law. Studying the building blocks of the legal tradition—criminal law, tort law, contracts, property, corporations, constitutional law—gives law students a basic grammar and vocabulary. They can combine it to form new bodies of law and to make new arguments on behalf of justice. So, for example, civil rights law has cut across and developed each and every one of these basic law school subjects. To put it another way, an effective campaign for civil rights in a three-dimensional living tradition would need to address injustices across all these areas of law.

    On my view, traditions are practical, not merely theoretical. That means they need not only to nourish good practices, but also to set up institutions that protect those practices over time. In so doing, they need to recognize and account for imbalances of power and what Christians recognize as human sinfulness. The criminal justice system isn’t designed simply to get to the truth of the matter. It tries to account for bias and disparities of power by putting its thumb on the scales in favor of the defendant; that is why prosecutors must prove their case beyond a reasonable doubt. But as Michelle Alexander, Bryan Stevenson, and others have shown, the criminal justice system is still riven by bias, particularly racism. Ford is right to note that much of my analysis of the use of victim impact statements was motivated by my concerns about their use in sentencing African Americans. I should have made those concerns more prominent in the text of my book. As I noted in a footnote (263n35), a study of two thousand murder cases prosecuted by the state of Georgia in the 1970s showed that those convicted of killing white victims were four times more likely to receive the death penalty than those convicted of killing black victims.

    In my view, allowing victim impact evidence in the sentencing phase of capital trials risks exacerbating disparities of race, social class, and income. Its prejudicial dangers outweigh its probative value. So my motive for arguing to limit such evidence comes not from a “highly idealized notion of how justice in a courtroom occurs,” as Ford suggests, but from a highly realistic—even pessimistic—sense of its grave dangers. I agree with Ford that we need to break up all-white juries. But limiting potentially inflammatory evidence is also a crucial step.

    Many thanks to Craig Ford for his perceptive response to my book. He has raised an enormously important question at the intersection of law and theology: What does it mean to find oneself reasoning in the context of a tradition—a deeply flawed set of practices, institutions, virtues and vices that is articulated, theorized, and defended by a morally inadequate and exclusive set of authors and texts? How does one respond to that challenge with incisiveness, hope, and humility?


    1. I am citing Alasdair MacIntyre, After Virtue, 3rd ed. (Notre Dame: University of Notre Dame Press, 2007), 222.

    2. Alasdair MacIntyre, Whose Justice? Which Rationality? (Notre Dame: University of Notre Dame Press, 1988).

Timothy Jackson

Response

Law and Love, Natural and Unnatural

Reflections after Reading Kaveny’s Ethics at the Edges of Law

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.”


  1. Jackson, The Priority of Love: Christian Charity and Social Justice (Princeton: Princeton University Press, 2003), 110.

  2. Barth, The Church and the War (Eugene, OR: Wipf and Stock, 1944/2008), 27.

  3. Hauerwas, After Christendom? How the Church Is to Behave If Freedom, Justice, and a Christian Nation Are Bad Ideas (Nashville: Abingdon, 1991).

  4. See Ramsey, War and the Christian Conscience (Durham, NC: Duke University Press, 1961), 178.

  5. Ramsey in “Principles of Christian Ethics,” a Princeton religion course I took as an undergraduate.

  6. St. Augustine, On Free Choice of the Will, trans. by Anna S. Benjamin and L. H. Hackstaff (Indianapolis: Bobbs-Merrill), book 1, chapter 5, pp. 10–12.

  7. Jackson, “Sanctity and Suffering: The Beatitude Paradox and the Sermon on the Mount,” in Church, Society, and the Christian Common Good, ed. Ephraim Radner (Eugene, OR: Cascade, 2017).

  8. Kierkegaard, Works of Love, ed. and trans. Howard V. Hong and Edna H. Hong (Princeton: Princeton University Press, 1995), 49 and 274.

  9. Kierkegaard, Works of Love, 53.

  10. Kierkegaard, Works of Love, 56 and 173.

  11. Kierkegaard, Works of Love, 57 and 17.

  12. Kierkegaard, Works of Love, 237, 268, and 274.

  13. Kierkegaard, Works of Love, 209–24.

  14. Kierkegaard, Works of Love, 64.

  15. Kierkegaard, Works of Love, 145.

  16. Kierkegaard, Works of Love, 22.

  17. Kierkegaard, Works of Love, 369.

  18. Jackson, Political Agape: Christian Love and Liberal Democracy (Grand Rapids: Eerdmans, 2015).

  • Cathleen Kaveny

    Cathleen Kaveny

    Reply

    Response to Timothy Jackson

    Many thanks to Timothy Jackson for his thoughtful and creative response to Ethics at the Edges of Law. As his remarks indicate, he was a few footsteps ahead of me on a path to teaching and scholarship in Christian ethics. We both did our undergraduate work at Princeton, where we studied with Paul Ramsey, and we both went on to do our graduate work at Yale—where I was fortunate enough to have Jackson as a professor. His seminar on epistemology remains one of the most useful courses I have taken in my life. Quite frankly, the only reason I did not include a chapter on his work in my book is that despite his accomplishments, I consider him an esteemed older brother, not a member of our common parental generation.

    I am grateful for Jackson’s response for two reasons. First, he squarely focuses on the theological issues I raise in the middle section of the book, which relate to questions of love and justice. Second, he recognizes the importance of casuistry, raising two fascinating scenarios that press our commitments and test the adequacy of our conceptual frameworks.

    Love, Self-Sacrifice, and Justice

    As students of both Paul Ramsey and Gene Outka, both Jackson and I were immersed in discussions of the nature of Christian love (agape). A key question at the time was whether self-sacrifice was an essential component of agape. Twentieth-century theologians who addressed this question tended to divide along denominational lines. Protestants like Anders Nygren tended to emphasize self-sacrifice, even self-abnegation, while Catholics such as Gerard Gilleman tended to see Christian love as not only compatible with personal flourishing, but as an essential component of it. Both Nygren and Gilleman were on the reading list for my comprehensive exams; I suspect they were also on Jackson’s exam reading list a few years earlier.

    After years of wrestling with this question, I have finally settled upon a view that is more in line with Catholic sensibilities than Protestant ones. The point of neighbor love is radical, active concern for the neighbor, with whom an agent shares an identity as a beloved child of God. Self-sacrifice is not intrinsically valuable. By making self-sacrifice too central, in my view, we risk perversely making anti-flourishing the new flourishing. Moreover, as feminist theologians have rightly noted, too much of an emphasis on self-sacrifice can reflect a lack of proper self-valuing, a failure to see that one is also made in God’s image and likeness. Protestants rightly worry that egoism and selfishness will interfere with neighbor love. I think an effective response to this worry can be found in the Augustinian insight that both proper self-love and love of neighbor are ordered to and united in love of God. That insight also points the way to true flourishing. Mother Teresa’s life was self-sacrificial, in the sense that she died to her own ego and comfort. Yet she is a saint because she re-ordered her loves and her priorities, and in the process found her own true good. I would say that Mother Teresa’s life was fundamentally a life of radical flourishing, not radical self-sacrifice.

    What is the relationship of love and justice? Thanks to Outka, I conceive that relationship as mediated through our obligations to a web of near and distant neighbors. Justice is what love does when confronted with the demands of both near and distant neighbors. Sorting out what that might mean was the focus of my reflection on the dispute between Sue Ann and James Watts, who separated after holding themselves out for many years as legally married without being so. How should their property be divided? The judges needed to appropriately resolve the conflict between these two parties—their near neighbors. But they also needed to formulate a rule that would respect the will of the legislature to privilege legal marriage and to allow people contemplating long-term romantic relationships to proceed with some knowledge of the consequences of their actions.

    Bull(y) in the Ring and the Drowning Family

    I agree with both Ramsey and Jackson: Love can require intervention to protect the vulnerable from unjust attacks. I see both the poetic justice and the disinterested love in Jackson’s fascinating account of the comeuppance of the anti-Semitic bully in the ring. Jackson notes that “at the end of the practice, Gottlieb did not have to go to the infirmary, and Flanagan apologized to the whole team.” All’s well that ends well. But I wonder if that just resolution was enabled by the prior relationships of respect and cooperation among the team members, who knew each other both inside and outside the ring. I am less willing to say that such interventions work to the benefit of the unjust aggressor when it comes to war. Barth’s remarks that the Second World War was good for Germany needs to be highly qualified in light of American atrocities, such as the fire-bombing of Dresden and Würzburg. Too many noncombatants die, even in a just war. Too much brutality is inflicted on those who are not responsible for the aggression. All is not well, because all does not end well, after any war.

    In recounting this story from his youth, Jackson is focused on the disinterested behavior of the hero, Hendershott. In reading the story, however, my focus was somewhat different. I kept asking myself, why didn’t the coach intervene? After all, it was his job not only to keep the students safe physically, but also to combat moral cancers like anti-Semitism. Jackson’s story focuses us on one dramatic interaction between three individuals: Gottlieb, Flanagan, and Hendershott. But this one interaction was shaped by social norms and role relations that are in part governed by those norms. Consequently, I think the tensions between love and justice, and self-love and neighbor love, are mediated and resolved in part by thinking about role relations. I suspect that Paul Ramsey adopted much the same insight when he used the concept of covenant fidelity to work out the requirements of agape in his later work.

    The concept of covenant fidelity and the idea of role relations help me in thinking about the scenario of the Drowning Family. Role relations and covenantal relationships help harmonize love and justice to contribute to the common good. Precisely because there are covenant relations involved, the parent on the dock has a general obligation to save his or her own family members first. The obligation is essentially one of duty, not one of feeling or preference. The obligation would remain the same even if one doesn’t particularly like one’s spouse or children and would prefer a new start in life. To recognize the priority of saving one’s immediate family members in an extreme situation does not prevent critiquing other forms of familial preference. We may owe our children support and education; we do not owe them a new BMW on their sixteenth birthday or even a trip to Europe when they turn eighteen.

    The idea of role-related obligations also helps identify a situation in which one might not have an obligation to save one’s family. Suppose the parent on the dock is also the captain of the sinking cruise ship. In this situation, he or she is duty-bound to make the decision that protects the well-being of the passengers considered as a whole. We may forgive him or her for putting her family first; at the same time, however, we will consider it a dereliction of duty.

    Jackson writes, “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.’” I am honored by the comparison and agree with the general point. I simply think that Ramsey’s focus on covenant fidelity and role relationships (parent-child, doctor-patient, teacher-student), can help ethicists and policy makers go a bit further than Kierkegaard takes us in resolving tensions between love and justice, as well as between self-regarding love and other-regarding love.

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