Law’s Virtues: Fostering Autonomy and Solidarity in American Society
by cathleen kaveny
georgetown, 304 pages, $29.95
Emerging from that end of the political spectrum grown rather short lately on argumentation (and long on dismissive invective), Cathleen Kaveny’s Law’s Virtues is refreshingly intellectually engaging. Despite believing that both abortion and homosexual acts are intrinsically evil, Kaveny, an ardent supporter of the Democratic candidate in the last two presidential elections, offers sustained—if ultimately unsustainable—arguments for why someone holding such beliefs should support politicians like him. Not that she is hesitant to engage in mere rhetoric—rhetoric, that is, intended only to persuade rather than also to bring out the contours of some socio-ethical reality—but she does frequently say things that force one to think. Given her intellectual gifts and also her position as professor of both theology and law at a prominent Catholic university, the arguments of this book will very likely have an influence, especially in Catholic circles, during the presidential campaign season of 2016.
The book is arranged in three parts, titled “Law as a Moral Teacher,” “Life Issues and the Law,” and “Voting, Morality, and the Law.” Its larger argument runs roughly as follows: Preferable to Joel Feinberg’s libertarian legal theory is Joseph Raz’s positivistic theory, which emphasizes autonomy and solidarity. The latter corresponds more closely than do the presuppositions of the typical pro-life activist to the ethical-political theory of Thomas Aquinas, who cites repeatedly and approvingly Isidore of Seville’s maxim that “law shall be virtuous, just, possible to nature, according to the custom of the country, suitable to place and time, necessary, useful . . .”
If one follows Thomas’s lead, one will cast one’s votes with an eye primarily not toward issues—in particular, divisive issues such as abortion and the redefinition of marriage—but toward candidates who, one trusts, will do their best, within the present political context, to promote and protect the broad range of goods advanced by Catholic social teaching. For Thomas holds that not every immoral act ought to be prohibited by law: “Human law is framed for a number of human beings, the majority of whom are not perfect in virtue.” And so, rather than adopting a “law as police officer” approach—which Kaveny associates with Feinberg and with both the pro-life and pro-choice movements—we ought to conceive of “law as teacher.” This entails voting for candidates who give evidence of the four “C’s”: Competence, Character, Collaboration, and (the proper) Connections. Such candidates are more likely to pass laws that promote virtue and move society toward a more widespread sense of justice.
That, then, is Kaveny’s larger argument. How sound is it? Let us begin with her use of Thomas Aquinas. At one point she quotes his statement “Custom has the force of a law, abolishes law, and is the interpreter of law.” She then says: “Aquinas recognizes that even if the purpose of a law is sound, it cannot prevail if it ‘is not possible according to the custom of the country. . . . For it is not easy to set aside the custom of a whole people.’” This second quotation from Thomas (beginning “is not possible. . .”) comes from the same article as the first, although it is part of a different argument. In that argument, before saying that customs are not easy to set aside, Thomas paraphrases the relevant bit from Isidore’s maxim, quoted just above. Kaveny is in effect arguing that, since present custom in the United States favors (for instance) the killing of the unborn, remedying this situation should not be a political priority for Catholic voters.
The problem with this interpretation, however, is that the presupposition of the argument from which she takes the words “Custom has the force of a law,” etc., is that custom has these qualities only insofar as it is law and that all law “proceeds from the reason and will of the lawgiver”—that is, from God, who also operates through “the will of man, regulated by reason.” Needless to say, the custom of killing children in the womb does not proceed from reason and the will of God. As for the allusion to Isidore (whose maxim, incidentally, serves as the motto of her book), Kaveny ignores or is unaware of another remark of Isidore’s, which Thomas also quotes: “Let custom yield to authority: evil customs should be eradicated by law and reason.” It is true, as Kaveny reports, that Thomas says that, when custom runs afoul of law and reason, “it is not easy to set aside the custom of a whole people.” But even this way of stating the obvious implies that efforts should be made to set aside such a custom.
Moving away for the moment from Kaveny’s use of Aquinas, the division she describes between conceiving of the law as police officer and as teacher is a rhetorical device with little basis in socio-ethical reality other than her desire to distance herself from the pro-life movement while maintaining pro-life convictions. In Kaveny’s words, all culture “warriors,” whether pro-life or pro-choice, in effect hold that “the core purpose of the law is to harness the power of the state to protect one person against the harm another person might do.” She, by contrast, conceives of “the fundamental purpose of law as helping people to become respected and flourishing members of the community in which they live.” But is this division at all plausible? One can perhaps find pro-lifers who hold the position—or make the presupposition—she attributes to them, but are we really to believe that that idea characterizes the pro-life movement? How, then, does one account for the fact that one of today’s most prominent pro-life “warriors” is Mary Ann Glendon, a major thesis of whose 1987 book, Abortion and Divorce in Western Law, is that law teaches—and that laws based on the Supreme Court’s 1973 decision in Roe v. Wade teach the wrong thing?
But what really annoys Kaveny about the pro-life movement is its advocacy of “single-issue voting.” Here she does make a couple of substantive and important points. In the last part of the book, she criticizes certain theologians, bishops, and even a pope for too readily describing as “intrinsic evils” the things they urge others to vote against, often combining such language with the thesis that voting for politicians who favor such things amounts to “cooperation in evil.” Use of the first expression does not contribute greatly to moral clarity since there are intrinsic evils, such as many instances of lying, that ought not to be punishable by law. As Thomas Aquinas says, “human laws do not forbid all vices, from which the virtuous abstain, but only the more grievous vices, from which it is possible for the majority to abstain.” Regarding the second expression (“cooperation in evil”), Kaveny usefully points out that, given particular circumstances, a vote for a pro-choice politician may not constitute, in classical terms, cooperation in acts of abortion.
But neither of these salutary linguistic counsels entails that theologians and pastors ought not to teach that issues such as abortion and the redefinition of marriage are of primary—and preferential—importance for the Catholic voter. Interpreting the larger passage from which she takes Thomas’s remark about prohibiting “only the more grievous vices, from which it is possible for the majority to abstain,” Kaveny says, “In my judgment, in cases of conflict, the ‘possibility’ criterion trumps. A close reading of Aquinas suggests that it is never conducive to the common good to enact legal prohibitions, even criminal prohibitions, that are likely to be widely flouted.”
In fact, however, a close reading reveals that Aquinas immediately specifies a number of “more grievous vices” which ought especially to be prohibited by law: “chiefly,” he says, “those that are to the hurt of others, without the prohibition of which human society could not be maintained.” He mentions theft and murder, which we now know includes also lethal actions inflicted upon embryos or fetuses and effected any time after conception. Had he ever considered the statutory recognition of gay marriage, he would certainly have regarded that also as inimical to the maintenance of human society.
As for cooperation in evil, Thomas is notoriously taciturn in this regard, although at one point he does quote some verses of unknown origin: a list of ways in which (especially) those in positions of authority might be held responsible for evils that they themselves do not perform. The list includes: “by counsel, by consent, by flattery, . . . by silence, by not preventing, by not denouncing.” Such are not infrequently the failings of pastors and professors.
Kevin L. Flannery, S.J., is professor of philosophy at Pontifical Gregorian University.