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.