The National Catholic Review
M. Cathleen Kaveny
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It seems as if every complicated moral issue sooner or later becomes a legal issue, at least in the United States. Consider, for example, the recent tobacco litigation. The moral question is whether tobacco companies should profit by selling such a dangerous product. This moral question immediately generates numerous legal questions. For example, should we allow those harmed by smoking to sue the cigarette manufacturer under tort law? Does it matter if a smoker knew about the risks when he or she took up the habit? Suppose he or she was a minor at that time? Should states be able to recover from the tobacco companies the Medicaid dollars they have spent on persons who have died of lung cancer caused by smoking?

Or think about the controversies currently surrounding homosexuality. How do moral positions map onto legal ones? Is someone who thinks homosexual activity is immoral committed to believing it should be prohibited by the criminal law? At the other end of the spectrum, does consistency require the support of gay marriage by a person who believes that homosexual activity is not morally different from heterosexual activity? And what about people in the muddled middle? What should their legal stance be?

Law and morality intersect in many other matters of grave public concern, such as affirmative action, the death penalty and school choice. Nowhere have they become more hopelessly intertwined than in the case of abortion. Moreover, they are not likely to sort themselves out any more easily with respect to the fruits of the human genome project. But we must sort them out. Those of us who are committed to forging common ground on difficult issues of law and morality need to find our way between two opposite and equally damaging extremes. We should not make the mistake of assuming that law and morality are coextensive, on the one hand, or of maintaining that they should have as little as possible to do with each other, on the other. In very different ways, both mistakes can be traced to the same fundamental problem: ignoring the full range of ways in which moral considerations enter into wise lawmaking.

The first mistake is made by some activistsat all points on the political spectrumwho believe that the legal system should accurately mirror their normative vision of society in every respect. They treat any divergence between the two as an unfortunate compromise, to be overcome as soon as politically feasible. This approach, of which the Prohibition movement was a paradigmatic example, tends to reduce the moral analysis of lawmaking to scrutiny of the actual content of the legal norm at issue. Its fundamental problem is that it treats an act of law almost as if it were an act of magic. It assumes that by passing a law, we can bring about a desired state of affairs instantaneously, without any effort, cost or abuses.

But this is not the case. The legal system is administered by flawed individuals and institutions. It is applied to flawed individuals and institutions. Moreover, the law is not a collection of discrete elements, but a complicated and interlocking web. Moral analysis of the human activity of lawmaking must take into account far more than the moral content of the law in question, considered in the abstract. It must also consider how the law will actually function in the particular time, place and community that it purports to govern.

The opposite mistake is made by those who say that law has no business imposing or even promoting one or more particular visions of morality; that its purpose is simply to function as a police officer, by preventing people from being harmed without their consent. According to modern proponents of this view, which is heavily indebted to the 19th-century liberal philosopher John Stuart Mill, the law should ban neither harmless immoralities nor even harmful activities to which all participants have consented. This approach fails to grapple straightforwardly with the considerable influence that moral considerations do have on our views of what law is and our view of what it should be.

First, the legal theory of law as police officer may be an approach that has some plausibility with respect to criminal law, but it does not adequately explain many other areas of law that have a far greater impact on the lives of most people and that routinely encourage some life choices and discourage others. To take an everyday example, the tax system clearly prefers staid homeowners to more mobile apartment dwellers, although neither lifestyle actually harms anyone. Second, even in the context of criminal law, moral considerations enter into our common judgments in a way that liberal legal theorists find difficult to explain. Murder-for-hire and murder as a hate crime may not harm their respective victims any more than garden-variety homicides, but we judge them more severely and punish them more harshly.

If we are to find common ground on complicated issues of law and morality, we need to begin by refusing to oversimplify their relationship. In this regard, the Roman Catholic jurisprudential tradition has a great deal to contribute to the contemporary public conversation. Anchored in St. Thomas Aquinas’s theory of positive law, it provides a remarkably sophisticated and powerful way of analyzing the interaction between legal and moral concerns, even in a context so different from Aquinas’s own as the United States today. Drawing on that tradition, five key points need to be part of our collective deliberations about controversial legal-moral issues.

 

Promoting the Common Good

In the Catholic jurisprudential tradition, law is not merely a police officer. It plays an ultimately positive role; its goal is to enable human beings living in the same community to find their flourishing with one another. According to Aquinas, the ultimate purpose of law is to further the common good of the community that has enacted it. The Second Vatican Council describes the common good in the Pastoral Constitution on the Church in the Modern World as the sum of those conditions of social life which allow social groups and their individual members relatively thorough and ready access to their own fulfillment (No. 74).

A moment’s reflection suggests the wide range of activities and institutions that are necessary to promote the common good. We need ways of facilitating the manufacture and exchange of goods and services, ways of assuming responsibility for the procreation and education of children, ways of deciding which projects should get priority when we cannot fund them all and ways of insuring the orderly transfer of political power. The goal of the legal system, which makes possible and organizes all of these activities, is to channel human creativity, not to repress it. Drawing upon Aquinas, the contemporary natural law theorist John Finnis stresses that human law shapes, supports and furthers patterns of co-ordination in ways that would be desirable even in a world entirely unmarked by human sin.

 

Law as a Teacher of Virtue

The Catholic jurisprudential tradition understands that the common good of a community is not separable from the good of the individual human beings who belong to it. Consequently, Aquinas recognized that the ultimate point of law is to lead persons to virtue, not absolutely, but in respect to the particular community in which they live. Seeing law as a teacher of virtue is a second way in which the Catholic vision of the legal system is ultimately positive; its regulating vision is ultimately the flourishing of each person within the context of a flourishing community. Moreover, it is ultimately more respectful of the dignity of its subjects than the law as police officer view adopted by much liberal legal theory. A police officer doesn’t care why an individual doesn’t perform acts that violate the law; it is enough that he or she doesn’t do so. But the why has to be important to those who appreciate the pedagogical function of law, since a virtuous person does the right thing and refrains from doing the wrong thing, not by happenstance, but for appropriate reasons. If lawmakers respect the fact that law is a teacher of virtue, they will not simply cram legislation down the throats of unwilling citizens, but will take pains to communicate its rationale in a way that the public can understand and accept.

What virtues should the law try to inculcate? The primary concern of law is the virtue of justice, which calls for right relationships among the members of a community. Legal justice is concerned primarily with external actions, not with internal ones. The focus of the criminal law, for instance, is upon those acts that gravely harm the well-being of others, not upon those whose main effect is the erosion of the agent’s own character. But because human beings are integrated unities of body and soul, promoting justice requires that we pay significant attention to the other virtues as well. Many acts of violence are rooted in the vices of excessive ambition or anger, which are countered by the virtues falling under the headings of fortitude and temperance. There is no reason that the legal system as a whole should not encourage these virtues, perhaps through publicly funded programs of education and service, especially those targeted at young people.

Whose virtues should the law teach in a pluralistic society? This, of course, is the most difficult question. It cannot be avoided, however, by an attempt to devise a value-neutral legal system of the sort advocated by some liberal legal philosophers. Whether we like it or not, law always supports some visions of how we should live our lives together, while undermining others. We are far better off taking responsibility for what law teachesand arguing about what it should teachthan in denying its pedagogical effects altogether. Moreover, if we address the question forthrightly, we may find that we share more broad-based (although by no means unanimous) agreement about core elements of some virtues and vices than the warriors of the culture wars suggest.

 

The Limits of Law

Are there any barriers to the role of law in promoting virtue? Yes. In fact, there are both practical and moral limits upon the power of law to require good acts and prohibit bad ones. First, it costs money to pass laws, to publicize them and to enforce them. In some cases, the money may be better spent on other things.

Second, the actions required to deter and detect violations of the law are themselves subject to moral evaluation. In some instances, the concrete steps that a state would need to take in order to enforce a particular law are themselves morally repugnant. For example, in Griswold v. Connecticut (1965), the Supreme Court of the United States declared that a state law prohibiting the use of contraceptives by married couples was unconstitutional, because identifying violations of that law might require police officers to invade the privacy of the marital bedroom. As Vatican II teaches, there are also spheres of personal and social activity that lie entirely beyond the proper authority of the state. No government, for example, has the authority to compel religious belief or practice (Declaration on Religious Freedom, No. 2).

Third, it is important to remember that while law teaches virtue, its most basic lessons are for ordinary persons, not for saints. As we learned from our experiment with prohibition, it is disastrous to attempt to enforce laws, particularly criminal laws, that the vast majority of persons will not comply with voluntarily.

 

Many Different Types of Law

But not all law exerts its force with the same harshness as criminal law. Particularly in contemporary bureaucratic society, there are many tools that the law has at its disposal to implement a vision of a good society that do not immediately spring to the mind of non-lawyers. Moreover, precisely because law functions as a teacher, it can call persons to rise to a standard of behavior that exceeds what the criminal law can realistically require in a particular time and place. There are many ways in which law can promote acts that lead to personal and communal flourishing without actually requiring them, and can discourage acts that are inconsistent with such flourishing without actually prohibiting them.

In fact, criminal law is just a small sliver of the legal framework necessary to promote the common good. All the various components of that framework are infused with a normative vision. Constitutional law articulates a political society’s basic framework and core values. Corporate law allows persons to form entities (corporations) that will continue to pursue worthwhile purposes long after the original visionaries have left the scene. The institution of marriage is supported not only by laws regulating divorce, but also by laws governing inheritance. The probate law of the vast majority of states protects a surviving spouse against the deceased spouse’s attempts to disinherit him or her. By granting tax-exempt status to charitable corporations such as hospitals and schools, the community is in effect giving them a subsidy roughly equal to one-third their gross income.

Each of these bodies of law has its own way, with its own costs and benefits, of encouraging and discouraging behavior in order to advance the common good. Take, for example, the practice of surrogate motherhood, which many people judge to be morally problematic. One way to express that judgment is to enact a criminal prohibition against the practice. But the very same people who advocate this might recoil at the prospect of penalizing emotionally desperate couples and financially desperate surrogates. They might also believe that the scarce resources of the criminal justice system could better be directed elsewhere.

Criminal law, however, is not the only way of tackling the problem. We could also turn to contract law, which uses less intense but more flexible tools to discourage surrogate motherhood. In the celebrated Baby M case of 1985, for example, the New Jersey Supreme Court refused to enforce a surrogacy contract because it violated public policy. Unlike the criminal law, contract law does not interfere with surrogacy arrangements that are voluntarily brought to completion. It can, however, at least insure that no surrogate mother will be held to an agreement to terminate her parental rights until she has had the opportunity to see the face of the child she has borne.

 

A Holistic Approach

If we look at the American legal system, we will find ample evidence of how law can still function as a powerful moral teacher by holding up a compelling, integrated vision of our common life that inspires people to move beyond its strict requirements. For example, the Civil Rights Act, the Americans With Disabilities Act and the Family and Medical Leave Act do not simply impose isolated sets of mandates. They point holistically toward a society infused with the virtue of solidarity and move incrementally toward its realization.

In fact, all three make significant contributions to the culture of life so vigorously advocated by Pope John Paul II in his encyclical letter The Gospel of Life. Moreover, they all embody the same integrated jurisprudence for which the pope calls with respect to life issues in that same encyclical. He writes, It is not enough to remove unjust laws [authorizing and promoting abortion and euthanasia]. The underlying causes of attacks on life have to be eliminated, especially by ensuring proper support for families and motherhood.... It is also necessary to rethink labor, urban, residential and social services policies...so that it becomes effectively possible to take care of children and the elderly.

In these wise words, perhaps we can find the beginnings of common ground on the most controversial legal-moral issues of our time.

M. Cathleen Kaveny is an associate professor at Notre Dame Law School. She is also a member of the steering committee for the Common Ground Initiative. An earlier version of this article was published in the Common Ground Initiative Report.