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Book Preview – Secular Law As Close Conversational Partner For Christian Ethics (Cathleen Kaveny)

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Cathleen Kaveny. Ethics at the Edges of Law: Christian Moralists and American Legal Thought. New York: Oxford University Press, 2018. Hardcover. 328 pages. ISBN-10: 0190612290.

Ethics at the Edges of Law: Christian Moralists and American Legal Thought is dedicated to the Lounge in the Department of Religion at Princeton University, where I earned my A.B. degree. By the dedication, I meant to refer not simply to a place, but rather, to point more fully to the relationship among persons that the place fostered and sustained. Professors, grad students and undergraduate students like me regularly gathered in the Lounge, where we were partners and participants in an ongoing informal conversation about the most pressing issues of the day.

Very often, the text was the front page of the New York Times. Conversations were interdisciplinary, rigorous and vigorous. Yet they were also charitable. Participants put the best face on an interlocutor’s argument before critiquing it. Looking back now, I see that the professors were teaching us how to deliberate and discern by modeling best practices of deliberation and discernment. The continuing conversation of the Lounge remains in my heart and in my mind as the counterpoint and antidote to the contemporary culture wars.

My undergraduate years at Princeton were the time at which I first became interested in doing interdisciplinary work at the border of law, ethics, and religion. I was a religion-politics “bridge” major, very interested in applied ethics. (My senior thesis was on the morality of nuclear deterrence). As I pondered the decision to go to graduate school for a Ph.D. in religious ethics, Paul Ramsey remarked that if he could do it all again, he would get a J.D. as well. So I thought, why not? School’s been good to me—why not try for twenty-third grade!

My interest in the intersection of law, ethics, and religion remains strong many years later. But as Ethics at the Edges of Law testifies, it has taken somewhat different shape over the years. While I was an undergraduate, I was interested in law instrumentally, treating it as the discipline in which one applied insights delivered by ethical analysis.

Was abortion or euthanasia morally acceptable? If so (or not) what should the law do about it? When I was in graduate school and law school, I absorbed the “church and state” problematic as it has been structured by the debates about the scope and meaning of the Establishment Clause and the Free Exercise Clause of the First Amendment. Very often, negotiating the problematic seemed no easier than sailing between Scylla and Charybdis. Viewed through the lens of church/state matters, law and religion were at best friendly adversaries.

As I moved into academia myself, however, I began to see the relationship of law and religion in different and more intellectually generative way. Highly influenced by Alasdair MacIntyre’s tradition theory, and influenced as well by my four years clerking and practicing law, I began to see the American legal tradition, particularly the common law, as a well-functioning MacIntyrean normative tradition—as a historically constituted argument about the goods and practices that make up the tradition. I began to see more possibilities for cross-fertilization. Legal traditions, like religious traditions, are forced to deal with questions pertaining to development of doctrine.

What was (or seemed to be) a good way of organizing society a hundred years ago is now perceived as inadequate, misguided, morally unacceptable, or even nothing short than a moral travesty. How do we affirm the good and correct elements of social and legal traditions, while repudiating and replacing the bad elements? Judges, like theologians, are always wrestling with matters of continuity and change in the context of a normative tradition.

As I thought more about the relationship of law and religious ethics, I began to suspect that the secular law might be as fruitful a conversation partner for religious and theological ethicists as philosophy can be. Law, in a sense, is applied and enculturated philosophy. It not only articulates, but puts into practice, fundamental normative judgments about why human beings are important, what counts as human flourishing, and how we should live our lives together. In putting those judgments into practice, it also tests them. What seems like a good idea for organizing society in a seminar room may prove to be utterly disastrous when actually implemented. At the very least, implementation may reveal significant flaws or gaps in the corresponding theory.

The argument of Ethics at the Edges of Law is developed in three parts. The book moves from a discussion how engagement with secular law can illuminate the general methodological commitments of Christian ethicists (Part I), to a consideration how the meaning of the key theological concepts of love, justice, and sin can be sharpened in conversation with legal cases and doctrines (Part II), to an examination how legal concepts and categories can shed light on current problems and controversies in Christian ethics (Part III). Taken as a whole, the book aims to demonstrate the substantive contributions that engagement with the law can make to important discussions in different facets of the field.

More specifically, the nine chapters in this book are meant to illustrate how engagement with the law can illuminate and extend the work of important contemporary religious moralists on a range of topics. The figures I have chosen to engage represent some variety and breadth with within the realm of Christian ethics, which is my own specialty within the broader field of religious ethics.

Some are Protestants (Stanley Hauerwas, Gene Outka, Paul Ramsey); some are Catholics (John Noonan, Margaret Farley, Robert Rodes, Walter Kasper, and Germain Grisez). One critically engages Christian ethics from the perspective of non-believer (Jeffrey Stout), and another belongs to the Orthodox tradition (Tristram Engelhardt). Some are theological progressives (Farley and Kasper), some are conservative (Grisez and Ramsey). Some emphasize the importance of a distinctively Christian morality (Hauerwas, Engelhardt), while others press for a more universal perspective (Farley, Outka).

The legal cases and topics I have used as conversation partners also reflect my own particular background and training. Many cases are from contract law. For two decades now, I have been teaching contracts to first-year law students, and I have found it to be a wonderful field to engage theological ethics, for two reasons. First, human beings make and break promises to each other all the time.

The Biblical idea of God’s great covenant with humanity has shaped and been shaped by the many covenants, great and small, that human persons contract with each other. Second and more generally, the narratives of promise, betrayal, and call for redress that populate the casebooks resonate with the turn in religious ethics to questions of character, narrative, and virtue. But I also draw on cases from criminal law, a realm which I regularly encountered while clerking for the Hon. John T. Noonan, Jr. on the U.S. Court of Appeals for the Ninth Circuit. Moreover, I have found that criminal law has been forced to grapple with the concrete tension between mercy and justice in specific ways that can help advance theological reflection.

I recognize, of course, that the figures I engage do not exhaust the field of Christian ethics, much less the field of religious ethics. I also see very clearly that the particular legal topics in the book constitute only a very small part of the legal field. My hope is to jump-start a broader conversation between law and religious ethics. I would be delighted if other scholars, with different interests, will pursue the nexus between law and religious ethics by focusing on many other important figures in the field. I think the intersection of law and ethics is a growing field.  I am delighted to follow a new generation of ethicists whose work in this area I eagerly anticipate, including John Carter (Boston College), Andrew Forsyth (Yale), Elisabeth Kincaid (Notre Dame), and Gustavo Maya (Princeton). All have training in law as well as theological ethics. And all are incorporating their legal training into their ethical reflections in ways that are eye-opening and fruitful for continued conversation.

Cathleen Kaveny holds joint positions in the Department of Theology and the School of Law at Boston College.  She is also president of the Society of Christian Ethics.  Prof. Kaveny has published over a hundred articles and essays, in journals and books specializing in law, ethics, and medical ethics. She serves on the masthead of Commonweal as a regular columnist. Her book, Law’s Virtues: Fostering Autonomy and Solidarity in American Society, was published by Georgetown University Press in 2012. It won a first place award in the category of “Faithful Citizenship” from the Catholic Press Association. She is currently completing a book entitled Prophecy without Contempt: An Ethics of Religious Rhetoric in the Public Square.

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