Abstract
Early in Aquinas’s treatise on law, he answers the specific question of the ‘effects’ of law in this way: ‘It is evident that the proper effect of law is to lead its subjects to their proper virtue: and since virtue is “that which makes its subjects good”, it follows that [law’s] proper effect … is to make those to whom it is given good’ (Summa Theologiae I-II, Q. 92, Art. 1, citing Aristotle; quoted in Kaveny, p. 29). That is so of all kinds of law, among them human law. This works by giving us, externally, the training in right conduct that we need to the end of ‘the perfection of virtue’; this is ‘the disciplina of [human] laws’ (ST I-II, Q. 95, Art. 1). There is nothing more central in Aquinas’s way of seeing the role of human law than this disciplinary conception.
It is surprising, then, that there is relatively little discussion directly of this specific aspect of Aquinas on law amidst the great wealth of recent writing in this field, for example by John Finnis and Jean Porter. The same is so of the most prominent authors of an earlier generation, Jacques Maritain and John Courtney Murray. Two books that form exceptions to this are Robert George’s Making Men Moral (1993) and Mary Keys’s Aquinas, Aristotle and the Promise of the Common Good (2006).
Cathleen Kaveny’s Law’s Virtues is another exception. At first it is surprising that Kaveny mentions Making Men Moral only in passing (although she refers to other work by George); also there is no reference to Keys. Yet, as the extent of the differences from that book emerges, the surprise diminishes. Kaveny says that she is proposing ‘a third way’, between a ‘firewall’ view, in which law is to be neutral among different conceptions of value, and an ‘enforcement’ model, in which the point of law is to proscribe immoral practices (p. 1). She might see George’s book as defending the latter.
To articulate this third way, Kaveny presents Aquinas’s disciplinary view in terms of law as ‘moral teacher’ or ‘teacher of virtue’ and of law’s ‘pedagogical function’. It is not her purpose to engage extensively in scholarship about interpretation of Aquinas (as she makes clear, p. 18) or indeed to seek fully to justify this conception. But it forms the book’s foundation: ‘My approach is broadly Thomistic in that I take my central theme from Aquinas’s view that the major purpose of law is to lead human beings to virtue’ (p. 18).
On this foundation Kaveny places a ground floor: Aquinas’s recognition of some important limits to the practical capacity of law actually to do that. Two are most significant for her argument overall. First, law can lead people to virtue only gradually and, therefore, it does not suddenly ‘lay upon the multitude of imperfect men the burden … that they should abstain from all evil’, as he puts it. Attempting this would only be counterproductive: ‘these imperfect ones, being unable to bear such precepts, would break out into yet greater evils: thus it is written “He that violently bloweth his nose, bringeth out blood”’ (ST I-II, Q. 96, Art. 2, citing Prov. 30:33; cf. Kaveny p. 59). The second is related: the force of custom can be so great that, even when a customary practice is contrary to natural law and virtue, it can render the pedagogical role of law practically impossible. ‘For it is not easy to set aside the custom of a whole people’ (ST I-II, Q. 97, Art. 3; quoted on p. 60).
Kaveny’s attention to this last point reflects a consciousness evident throughout the book of how much context matters for what lawmakers should do in practice to enable law to fulfil its teaching role—and for what citizens, including church leaders, should demand of them. She is writing quite specifically for the contemporary USA, and she proposes two virtues that the law needs to and could manage to teach in that context. One is autonomy. To some it will sound odd to label this a virtue at all, but she takes up the conception at the centre of Joseph Raz’s perfectionist liberalism, in which autonomy names the practice of being ‘part author’ of one’s own life by exercising freedom positively in morally worthwhile ways. She holds that this is an aspect of the virtue of prudence required in a pluralist, liberal society. In an unusual juxtaposition, the second virtue is solidarity as described by Pope John Paul II. This is an aspect of justice, she says, and can supplement and develop Raz’s position, not least because it ‘requires us to recognize the nature of each person as essentially social’ (p. 28).
Along the way she engages critically with Joel Feinberg’s anti-perfectionist liberalism, in which the harm principle is claimed to justify almost all that law should do. She contrasts this ‘law as police officer’ view with ‘law as teacher of virtue’, arguing that the former cannot account for some of the ways in which law quite properly does operate in the USA. She gives the Americans with Disabilities Act (1990) as an extended example: this was not only harm-preventing but also pedagogical; moreover it has been effective in contributing to the formation of autonomy and solidarity.
All the above comes in Part I of Law’s Virtues. At the outset Kaveny has indicated, gently but clearly, that she takes a pro-life stance. In the rest of the book, Parts II and III, she takes up Part I’s conception of law to examine ‘troubling “life issues”’ (p. 1), specifically abortion, genetics and euthanasia. I shall later have some quite basic questions to pose about Part I, but I happily say now that each of Parts II and III is a tour de force.
Part II begins with a lament that, ever since Roe v. Wade, both sides in the abortion controversy have tended to assume the ‘law as police officer’ approach. Activists seek, in line with their respective views of the status of the foetus, either to entrench or to overturn the ruling. She argues that ‘law as moral teacher’ opens up other possibilities. She proposes a ‘vulnerable person’ standard in law to supplement that of the ‘reasonable person’, and argues for a legal pedagogy of solidarity with those who meet it, including the unborn. These are ‘the most vulnerable’ yet they are ‘entirely dependent upon those only slightly less vulnerable … women facing crisis pregnancies’ (p. 85). Such pedagogy is slow, and Kaveny argues convincingly that the practical limits that Aquinas recognised to what ‘law as moral teacher’ can achieve mean that—as in the frontier town of Deadwood (her example)—lawmakers cannot immediately outlaw immoral practices that are widely regarded as acceptable. ‘The order of practicality demands a multifaceted strategy to protect [the right to life] in Western liberal democracies where abortion has long been legal and widely used’ (p. 91).
Passing over Kaveny’s highly informed discussion of the first fruits of genetic medicine—which seems a little out of place because the practical limits of law do not receive much attention—her line of argument about the end of human life broadly parallels that on abortion. A chapter entitled ‘Dying Gracefully’ is affecting, rigorous and compelling in its exposition of ‘the Catholic approach to end-of-life decision making’ (p. 147). Within this Kaveny shows that both autonomy (in the Razian sense) and solidarity continue to matter to the end. ‘Suffering, in essence, is a blow to the fruits of Razian auto-nomy; alleviation from suffering generally is facilitated by the exercise of solidarity as understood by Pope John Paul II’ (p. 157).
There being no single ruling on euthanasia or assisted suicide equivalent to Roe v. Wade (a welcome state of affairs, she thinks), Kaveny gives close attention in the next chapter to a series of less prominent judgments. Almost uniquely in the book, this discussion does not travel well outside the US context because much turns on the relation of state and federal levels of government. Nevertheless the ‘importance of practical experience in making good law’ (p. 164) remains an underlying theme. Moreover, ‘American Christians who endorse the tradition’s rejection of assisted suicide and euthanasia have a task … [to] show our fellow citizens that, in many if not all situations, solidarity is an effective and appropriate response to suffering’ (p. 172). Only then, she implies, can the case for proscription of those practices be credible.
Kaveny is plainly a faithful Catholic Christian; nowhere, I think, does the book show or imply dissent from the Magisterium. Yet in Part III she very carefully takes to task some American Bishops, indeed the US Bishops’ Conference, for both lack of moral-theological cogency and political unrealism in some recent contributions to public debate around life issues, especially abortion.
First there is a rare and welcome analysis of what is involved in voting in a democratic election. (Why is there not more literature in Christian ethics on this most basic practice of citizenship?) Possibly because of the lack of material with which to engage, Kaveny’s treatment is rather underdeveloped—or at least applicable only to presidential or mayoral elections. Her case that voters should focus on candidates’ ‘competence, character, collaborative potential, and political connections’ (p. 219), rather than on single issues however morally clear-cut these are in principle, is broadly persuasive. But she gives no consideration to party platforms. Is US politics really so non-ideological that voters need not give much priority to assessing the whole raft of each party’s policies, including whether these cohere?
In the remaining two substantive chapters, Kaveny argues convincingly that two pieces of terminology that have become prominent in some Catholic contributions to election debate about abortion, ‘intrinsic evil’ and ‘complicity in wrongdoing’, cannot bear the rhetorical weight placed on them. Both these terms make excellent sense in the context of moral theology but when taken up as ‘prophetic’ speech they frequently mislead. Moreover, political strategies generally associated with them are often completely unrealistic. In light of such critique the purchase of Kaveny’s main thesis becomes clearer: it is the patience and practicality required by Aquinas’s recognition of limits to law’s capacity to fulfil its pedagogical role quickly which the pro-life movement, even at its highest levels, needs to learn.
Kaveny’s book certainly coheres. She argues succinctly and is a pleasure to read. But there are some questions the book does not address adequately, large questions to do with its foundation. For one, does the way she presents Aquinas’s position as ‘law as moral teacher’ actually do justice to his text? In Aquinas’s responsio directly on the usefulness of human law, we find a somewhat more authoritarian conception than Kaveny puts across. The external restraint that law imposes leads to fear of punishment; it is this that constitutes the disciplina of law, a coercing practice that ‘teaching’ does not seem adequately to translate (ST I-II, Q. 95, Art. 1). As I noted earlier, Kaveny’s purpose is not detailed discussion about how to read Aquinas—but this is needed to support her foundation.
More basically, second, was Aquinas right theologically to take up that essentially Aristotelian conception of human law’s function? Kaveny assumes the rightness of that position rather than seeking to defend it directly. To the extent that Law’s Virtues forms a case for it, this is through the coherence and workability (one might say) of the perspective that the book as a whole gives. But there are at least two theological reasons for questioning it. One is biblical. It is precisely law as paidagogos, as external ‘disciplinarian’ (
Although not articulated in relation to Aquinas’s disciplinary conception, Oliver O’Donovan’s account of ‘government as judgment’ can be seen as one reconceptualisation along such lines. Kuyperian Calvinism’s view of law as to effect ‘public justice’ can also. Perhaps more precisely than either of these, so can John Courtney Murray’s conception of government as to effect ‘public order’. Implicit in some main texts of Catholic Social Teaching is what can be seen as a developed version of this: a view of government acting through law to establish the social preconditions for the common good—a kind of infrastructure. Kaveny’s assuming of the Thomistic disciplinary view means she does not consider such possibilities.
It is Kaveny’s foundation, then, that needs support. There is not a parallel problem, however, with what I earlier called the ground floor she places upon it: Aquinas’s clear grasp of the practical limits upon the capacity of human law to fulfil its role rapidly. While I have doubts about whether that support work can be done, I suspect that one could lift much of the construction that Kaveny’s book represents, including this ground floor, and locate it on a firmer foundation.
Cathleen Kaveny has written a very good book. Many of its arguments, especially in Part II and Part III, are highly important for enabling Christians, especially Catholics, to move forward on some of the most neuralgic issues in liberal societies. Yet rather more is needed to show that ‘law as moral teacher’ really can constitute a secure base beneath them.