From Law or Religion to Law and Religion
Which comes first: law or religion? Students entering the law and religion program at Emory are given a choice of whether to start their studies in law or theology. Does it make a difference whether and why people enter through either the law or the religion door? Do those who begin in law turn to religion for something beyond the law? How do minds trained to “think like a lawyer” respond to non-legal concepts, such as grace, sin, atonement, redemption, and mercy? Do those who enter through religion become disheartened when they turn from divine narratives to the dramas, discord, and generally adversarial realm of the courtroom? Does their study of law give them theoretical or practical grounding for pursuing work in religion, whether in ministry, social service, or some other capacity? How do the two groups end up relating law and religion in their lives? How does the law or religion question end up being reconciled in the diverse vocations and pedagogies of the law and religion field?
Cathleen Kaveny's most recent book, Ethics at the Edges of Law, is dedicated, specifically, to the proposition that law can serve as an apt conversation partner for religious ethics, particularly Christian ethics and moral theology.Footnote 1 Kaveny's three-part argument for this proposition examines, first, “how engagement with secular law can illuminate the general methodological commitments of Christian ethics”; second, “how the meaning of the key theological concepts of love, justice, and sin can be sharpened in conversation with legal cases and doctrines”; and, third, “how legal concepts and categories can shed light on current problems and controversies in Christian ethics” (xvii). The trajectory Kaveny sketches is one in which the field of religious ethics should seek to engage and appropriate law. A careful reading of Kaveny's book, however, suggests that the relationship is really one of mutual benefit,Footnote 2 and that the study of law, for those inclined to view it through a religious lens, may also benefit from the study of religious ethics.
In some ways, the argument that religious ethics could benefit from consideration of law is an easy sell. Divinity students often manifest what seems to be a natural interest in and affinity for the law. Once, while teaching a course titled “Law, Religion, and Social Change,” I became concerned about how easily students of religion and divinity seemed to fall under the sway and lure of law. They seemed impressed with the normative power of law to articulate social values and social justice. However, the point of the course was to show that law, often an inherently conservative and reactionary force, sometimes needs a good push from other social and political entities—not the least of which are religious leaders and laity who call for justice and change. Law students, on the other hand, even if they enter law school with the loftiest of humanitarian and social justice aspiration, are hit early on with the limits of law and the way in which law can be a rather blunt hammer for ordering social life. The pedagogical and professional fields of law and religious ethics have also both undergone considerable change and even crisis moments in recent years, buffeted by economic downturns and quantitative and ethnographic turns that have at times proven challenging for normative inquiry. The time is ripe for considering the interrelation and possibilities for mutual reinforcement of law and religious ethics.
Tradition, Narrative, and Authority
Kaveny structures her book around lessons of law for religious ethics in chapters dedicated to particular theorists in both law and religion who have defined the field of Christian ethics. The first section seems designed, at a pedagogical level, to challenge some of the bedrock assumptions that new students of law and religion might share, along with the general public, in their study of law. Students who may initially engage law in a rather static and positivistic way—looking to what “the law says”—are challenged to appreciate the dynamism and development of the law, as well as the narratives underlying the law and its authority. The study of the law becomes a way to “question authority,” in the immortal phrase of resistance and revolution, looking to how the law both shapes and is shaped by society.
Tradition and Development
The first chapter, devoted to the thought of the Roman Catholic canon law expert and distinguished United States federal appellate court judge John T. Noonan, Jr. (d. 2017), takes up questions of tradition and development and how the Roman Catholic Church “could and did change its mind about important moral issues” (4) over time. Understanding the way in which tradition and development interact is important not only in canon law, but also in common law systems, which develop through judicial interpretation of the law. This process of interpreting law and theology forward is one that Kaveny identifies as involving a “faithful creativity” (19) with the past, and this becomes the first key lesson that Kaveny takes from Noonan.
A second lesson, which gets to questions of the narrative of law, is the importance of “honoring the particularity of each person's life circumstances” but also of “formulating generally applicable norms that promote the common good” (5). Crucial here, for both Noonan and Kaveny, is the imperative in law to attend to and redress real harm amidst its rules and dictums. As Kaveny observes, “Human persons have an ultimate reality that human rules do not. So does human pain. The sight of it should force a judge at least to reconsider the adequacy of the categories used by any rule to classify persons” (14). There are shades of President Obama's famous criterion of empathy in judicial appointments here.Footnote 3 In common law systems, this concern is often addressed judicially through concepts and courts of equity. As Kaveny puts it, “earthly judges can never afford to ignore the particularity of the person standing before them. In the end, if a judge must err, it is better to do so in favor of the person rather than the rule. Equity trumps law” (14). In Kaveny's analysis, Noonan's concern for the “personas” of the law is an adjunct to the first lesson on tradition and development.
The importance of history and persons for law comes together in what Kaveny identifies as the “multi-faceted historicity” of Noonan's approach to law and religion. As Kaveny describes it, in Noonan's understanding, law, theology, and ethics are “historical enterprises because the persons who engage in these activities are historical beings” (6). It is an understanding that we today live in “community and conversation with the dead” in which the “shape of our minds and hearts is informed by the ideas and purposes of our forebears, much as the shape of our bodies is informed by their genetic material” (66). Even so, there is room for, even requirement of, change and innovation. As Kaveny argues, “We manifest our fidelity to the persons of the past not in slavish repetition of old formulas but rather in sensitively attempting to discern the core purposes of traditional doctrine and in creatively applying it to a new situation. Such a process requires us both to understand and to judge our predecessors. In sifting through their thought, we must separate insights of enduring value from the rough bundle of time-bound presuppositions and failures of will and vision that trap them” (6–7). In exemplifying this “faithful creativity,” Noonan's work struggles against both “treating the past as a mythical golden age” and the “temptation to portray the great sins of bygone eras as performed by monsters, not human beings” (7).
This focus on tradition and development may seem overly theological and somewhat parochial to the Catholic moral tradition, but in what becomes a characteristic feature of all of the chapters, Kaveny gleans from Noonan's writing important connections and implications for law and the training of future lawyers. Specifically, Kaveny observes, “the first year law curriculum does not teach students a discreet set of rules and facts to be regurgitated on an exam, but a series of ways of thinking and arguing, a series of ways of identifying and approaching relevant questions within a normative context. In other words, law students are not taught to be passive recipients of knowledge; rather, they are taught to be active participants in an ongoing practice” (27). Indeed, Kaveny observes,
In the first year of law school, therefore, men and women embark upon the path of becoming virtuous in the practice of law. The initial step upon that path plunges them into a massive intellectual and existential uncertainty. They fear that there is no right answer, that everything is up for grabs, that any position can be defended or attacked, that arbitrariness rules the day. They see no rhyme or reason to the decisions that are made, to the way cases are resolved. … The point of the first semester of law school is to teach students that studying law is about learning what it means to make arguments within the context of a living tradition. (28)
The aim of legal pedagogy is such that “[i]deally, by the end of their legal education, law students will have transcended both the fear of radical uncertainty and the embrace of skepticism. They will have taken their place as members of the ancient and venerable guild of lawyers, having internalized its important standards and thereby become competent to argue in good faith for its ongoing extension and revision” (29). This commitment to training students in active participation in an ongoing tradition of virtuous practice is something that Kaveny sees as missing from the study of moral theology—but some might see it lacking in legal pedagogy, as well.
Narratives and Norms
Moving from Catholic jurist John Noonan to the thought of Protestant theologian Stanley Hauerwas, Kaveny's inquiry might seem poised for a marked shift, particularly over questions of natural law and virtue on which there are distinct Catholic and Protestant perspectives. But Kaveny quickly shifts the discussion to broader concerns about the religious neutrality of the public square in modern liberal democracies and the place of judgment and narrative therein. Hauerwas is known for emphasizing, throughout his voluminous theological writings, the distinctiveness of the Christian narrative and community. Hauerwas is known as a “narrative theologian,” Kaveny explains, because “he resists treating moral norms in isolation from character, narrative, and tradition” in a way that makes him a “natural conversation partner in the common law tradition” (37), since the common law tradition deals centrally with the facts and narratives of particular cases. The legal vehicle through which Kaveny approaches this conversation is the field of contract law, a pedagogical staple of the first year of legal studies
How does Hauerwasian narrative theology add to the study of contract law? A key way is the positive and constructive role that contract law—indeed, law in general—can play in allowing people to order themselves as communities and society. Law is, after all, not always about sanctions and prohibitions. As Kaveny observes,
When most people think of legal norms, they think of the requirements and prohibitions of the criminal code. Lawyers know, however, that what the law enables and encourages, or impedes and discourages, is at least as important as what it straightforwardly requires or prohibits under the threat of penal sanctions. The law has a channeling function, highlighting certain activities as worthwhile … and marking career paths that can lead to achieving them. Much of the law curriculum, in fact, deals with bodies of law that are essentially positive in function. (49–50)
In the process of making contracts, the channeling function inherent in acts of promising and keeping promises is paramount. Here, Kaveny argues that narrative theology “would not limit its moral evaluation of promise-making and promise-keeping to the moment of commitment,” but would instead “view that obligation in a broad temporal frame that relates past, present, and future” in a way that would enrich the meaning and act of entering into a contract (60). Kaveny further argues, with respect to the contract law doctrine of reliance, “Reflecting upon the legal concept of reliance might also allow Christian ethicists more firmly to situate individual actions in a communal context for purposes of evaluating their moral import, particularly with respect to the potential for vulnerability they create” (60). Here, the focus on individual narrative becomes crucially situated within a community, becoming not merely a declarative assertion of the individuals, but a dialogue about what we owe to one another in a good society. There is, importantly, a corroborating context for narratives, which can then be taken at more than mere face value or bald assertions of will.
The “narrative” and related “ethnographic” turns have overtaken many fields in recent years, including religious ethics. But the Hauerwasian focus on narrative, combined with a focus on the structure of contract, can perhaps avoid some of the potential pitfalls of too great a reliance on uncorroborated “narratives.” Narratives are importantly shaped, and necessarily circumscribed, by the sort of cultural evidence that can come from a broader and more specific understanding of the circumstances, concerns, and communities from which narratives emerge. This situation of individual narratives in community narratives and broader cultural narratives can serve as a check against a too uncritical reliance on narratives themselves as indicia of truth, absent some form of corroboration. By what criteria should people's narratives be validated and verified? Who can assess their validity? How much can we rely on people's bare narratives, outside of the larger social contract and legal system? How can we trust the system to protect us when our reliance turns out to be misplaced? These are the kinds of questions we must ask when relying on narratives, both in law and in religion, especially in a world prone to privileging data points and ethnography over their normative substructure.
Democratic Virtues and Judicial Authority
Turning to the work of the notably secular religious ethicist Jeffrey Stout, Kaveny distills, for the law and religion fields, further important observations about the relationship between different types of authority and between certainty and cynicism in law, politics, and religious ethics. Kaveny describes Stout's recent work as a “powerful case for the viability—and the virtue—of American constitutional democracy,” showing how the American democratic heritage is underplayed by both secular liberal philosophers like John Rawls and “new traditionalist” religious ethicists, such as Stanley Hauerwas and the philosopher and virtue theorist Alasdair MacIntyre (62). Kaveny observes, “Stout maintains that the American democratic heritage offers us an honorable and well-functioning moral and political tradition that “inculcates certain habits of reasoning, certain attitudes toward deference and authority in political discussion, and love for certain goods and virtues, as well as a disposition to respond to certain types of actions, events, or persons with admiration, pity, or horror” (62). Such observations may have added salience in the context of American political culture today, riven as it is said to be by dissension and polarization.
The question that Kaveny asks of Stout's writings on democracy, as with Noonan's on law in the book's initial chapter, is the following: “What is the role of authority in American democratic culture” (75)? In considering the meaning of authority, Kaveny distinguishes between what she terms “extrinsic authority” and “intrinsic authority” (76). Extrinsic authority is based on external position or power: As Stout argues, “Where the default position in a given community is that the ethical judgements of those in ecclesial or political office are correct, we have a pattern of deference to one kind of authority. The authoritarian extreme is reached whenever such a default position is treated as indefeasible and the authority is treated as self-interpreting” (76). Intrinsic authority is that demonstrated by someone meeting Stout's description of the competent judge as “someone who has become adept at the patterns of approval and disapproval essential to a social practice involving kinds of things taken to be worthy of love or admiration” (76). Ultimately, Kaveny sees Stout as aiming at ensuring that intrinsic authority has a “prominent place within the American democratic tradition,” without giving “too prominent a role to extrinsic authority,” in a way that risks morphing into the “hallmark of an undemocratic and authoritarian tradition” (76). The problem with extrinsic authority, Kaveny argues, invoking Alasdair MacIntyre's notion of the extrinsic and intrinsic goods of practices, is that “extrinsic authority can threaten the integrity of the practices whose life it purportedly sustains, particularly if those who exercise that authority are not competent judges of the goods internal to those practices, or if they are moved less by love of those internal goods than by desire for external goods such as money, power, and prestige” (77). These are important concerns in a world in which authoritarianism is said to be on the rise.
Concerned to preserve both democracy and tradition, Kaveny goes on to address the question of “how to structure extrinsic authority in a way consistent with democratic values” in the American legal system (78). This involves, first of all, accepting on some level the “necessity of extrinsic authority in a democratic society,” particularly through respect for the “task of judges” (78) in the common law system. The selection of judges who embody a balance of extrinsic and intrinsic authority and balance of respect for both authority and democracy is no small task. This explains, for example, why heated debates can accompany the appointment of justices to the bench of the Supreme Court of the United States. Of the connection between judicial authority and democratic virtue, Kaveny argues that “in our legal system, judges are lawyers, which means they have received significant socialization in the practices of the law” and that ideally, “lawyers who become judges are chosen because they exhibit the virtues that enable them to appreciate and identify the goods internal to the practices of law” (78). By this criterion, there are problems, for example, when a prospective judge appears to be grounded more in partisan political vendettas than in virtuous and unbiased practices of law and judging.
The discussions that emerge, particularly when judicial appointments are pending, often center on judicial philosophy—whether judges are originalist, textualist, living constitutionalist, or inclined toward some other jurisprudential philosophy. There are also often questions by legal and political conservatives about whether judicial nominees fall into the category of “judicial activists,” maligned by conservatives as purveyors of “judge-made law.” But the common law system is, in fact, premised on judge-made law, ideally by judges who take their role seriously and strive to practice it virtuously. In the tenor of these conversations, it often seems that “judicial activists” are often simply judges who by philosophy, politics, or other inclination might come to a different decision than that of the individual or entity making the accusation. Nevertheless, the prospect of politicized law and courts can be a shocking realization for those who come to law school beaming with admiration for the loftier aspects of the law and the weight and certainty of judicial decisions.
But on these points of judicial philosophy and authority, the pedagogical lessons also loom large. Kaveny observes that “a major function of the first semester of law school is to dispel not only the expectation of such certainty but also the desire for it. First, students learn that common law judges do not only interpret the law; they also make it. They see that ‘the law of the case’ is not delivered from on high, but is simply one judge's account of the obligations of commutative justice as they apply to the contesting parties before the bench” (73). For Noonan's critics, the prospect of sowing doubt about the authority of the church was especially problematic, and, so, there can be problems of doubt and uncertainty in the legal system. A Hauerwasian narrative approach can seem equally perilous, since it requires a capacity to hear a range of narratives and decide which ones count, legally and morally. The value of Stout's work on democracy and tradition, in Kaveny's description, can seem equally daunting for students of law and ethics, as Stout “attempts to disabuse his readers of both moral foundationalism and moral skepticism” (73). As a pedagogical matter, Kaveny points out, “At the end of the first semester, most students have given up their expectation that the law offers them certainty. In fact, many have swung to the opposite extreme, adopting a deep cynicism toward legal reasoning that holds there is no way of rationally evaluating the competing arguments that may be raised in connection with a legal case” (73). But cynicism alone cannot stand, which is why there must be a search for other values in law—ones that Kaveny identifies in her book's second section.
Love, Justice, Compassion, and Culture Wars
Opening part two with a chapter on the work of Protestant theological ethicist Gene Outka, Kaveny shifts from the genesis of norms and narratives in law and religion to the particular theological norms of love and justice. The standard narrative for addressing these concerns in the Christian tradition has been the parable of the Good Samaritan, with its question: Who is my neighbor? Outka is known for his classic discussion of love as agape, a theocentric notion of selfless and impartial love reflective of the way that God loves humanity. God's agapic love and the potential for humans to emulate it is central to the Christian tradition, but it carries the risk of being so abstract, universalistic, and laden with potential for abuse and victimization if not balanced by healthy self-regard, that it becomes unworkable as a model for human relationships.
Private Promises, Public Contracts
As with Hauerwas, contract law is the rubric through which Kaveny explores the interrelation of love and justice in Outka's theological ethics. Against what is, perhaps, the popular image of contract law as the rough-and-tumble area of hard bargains and purely transactional justice. As Kaveny observes,
Contract law's basic premise is that the widespread practice of making and keeping promises of exchange allows all involved to bring into being a future that they conceive to be better for themselves and those with whom they are associated. Individual autonomy is honored within the framework of contract law. It is not, however, honored in isolation. Rather one agent's autonomy is always situated within a broader context that includes the autonomous decision making of other agents, particularly that individual's contracting partner. Furthermore, autonomy is not seen as an abstract value. Even a cursory examination of the case law reveals its status as a crucial instrument of pursuing individual and social well-being. (96)
Indeed, even though contract law is often immediately associated with business and commercial contracts, the marriage law case that is the focus of Kaveny's discussion is equally obvious evidence that contracts govern even our most intimate relationships—though resort to the law in legal marriage and divorce also injects a dimension of publicity that is often unacknowledged when discussing marriage, which is both an intimate and a legal relationship. As Kaveny puts it, “contract law is based upon the public recognition of private promises. This society has decided that the exchange of reliable promises by private persons is so important to the well-being of the whole community that the government, in the form of its judicial branch, regularly devotes public resources to managing private disputes” (97).
This public dimension of contract law, through such contractual principles as the doctrine of reliance intersects with Outka's observation that “human beings are not isolated monads, but are social beings” (100). As Kaveny describes it, “Reliance is the relational counterpart of a promisor's autonomous commitment; it is incorporated as one plank of the promisee's practical reasoning about the future” (100). This relationship between autonomy and sociality has broader public and social implications. As Kaveny maintains, “Our autonomous choices are not of interest merely to ourselves, but also to our neighbors. They not only predict them from afar, but they also attempt to secure them by folding them into binding agreements. And they do so because they want to build upon them in the course of exercising their own autonomy and pursuing their own well-being” (100). The accretion of our autonomous choices as individuals gives rise in this way to customs and social scripts, which become the fabric of trust that constitutes and shapes our societies. In his recognition of the limits of autonomy, Outka offers a covenantal ethic through which to view contract and commitment through the lens of agapic love.
Compassion and Justice in Victim Impact Statements
One of the most timely and compelling chapters in Kaveny's book—especially writing this review the week after the controversial confirmation of Justice Brett Kavanaugh to the United States Supreme Court, following accusations that he attempted to rape a young woman when both were teenagers—is the chapter on victim impact statements and Catholic theologian Margaret Farley's theological ethics of compassion. Compassion, with love, turns out to be another theological virtue, worth importing into the law and its study. Kaveny frames the chapter around another notorious accusation of rape at Stanford University, in this case a crime for which Stanford student and championship swimmer Brock Turner was found guilty.Footnote 4
Notably, in the Stanford case, the victim was allowed to give a lengthy victim impact statement in which she detailed the attack and its effect, stating at one point,
I want to show people that one night of drinking can ruin two lives. You and me. You are the cause, I am the effect. … You knocked down both our towers, I collapsed at the same time you did. Your damage was concrete; stripped of titles, degrees, enrollment. My damage was internal, unseen, I carry it with me. You took away my worth, my privacy, my energy, my time, my safety, my intimacy, my confidence, my own voice, until today. (116)
From the other side of the criminal proceeding, Turner's father wrote a letter arguing for leniency in his son's sentencing, observing as follows:
As it stands now, Brock's life has been deeply altered forever … He will never be the same happy go lucky self with that easy going personality and welcoming smile. … These verdicts have broken and shattered him and our family in so many ways. His life will never be the one that he dreamed about and worked so hard to achieve. That is a steep price to pay for 20 minutes of action out of his 20 plus years of life. (116)
Kaveny notes, particularly, the response to the phrase “20 minutes of action” by victims’ rights advocates, “who saw it as a shockingly cavalier description of a brutal attack with lifelong effects on the victim,” as contrasted with the perpetrator's father's “pleading that his son's entire identity and future not be entirely defined by this one deplorable action” (116).
In Kaveny's view, the admission of victim impact statements in criminal sentencing raises the issue of the “role and relative priority of experience in moral decision making” which resonates strongly with Farley's inquiries into the “role of experience in moral discernment” (117)—the capacity for decision making and discernment being key pedagogical goals of the study of law and ethics. As Kaveny further notes regarding Farley's method, “It requires reflection upon the nature of moral discernment, as well as sensitivity to the blind spots in our ongoing tradition of moral discernment. The answer to the question whose experience counts turns in part on whose experiences has been unjustly excluded from the moral and cultural conversation thus far” (117). What Farley's method suggests to Kaveny about the admission of victim impact statements at criminal trials is the need to realize the ways that the “dignity of all human beings presses us to consider the legitimate needs of both the victim and the defendant” (120). Those who argue for exclusion of victim impact statements argue that their admission “undermines justice by shifting the attention away from the background, circumstances, and character of the person about to be sentenced” (120). Those who argue for admission of victim impact statements “believe the laudable concern for defendant's rights has occluded the dignity and needs of the victim” (120).
Throughout the chapter, the emphasis on solicitude toward victims who fit particular categories of purity and innocence is one that Kaveny wants to critique, and she finds in Farley a useful partner. Farley's framework of compassion would extend to both victim and perpetrator. As Kaveny describes it, “Farley emphasizes that mercy toward wrongdoers cannot undermine justice. To the extent that it is rooted in God's mercy, however, human mercy must never write off the possibility of repentance, forgiveness, and redeemed relationship. No matter what an individual has done in the past, he or she retains dignity as a child of God” (124). This leads Kaveny to observe of the fact pattern of the typical college sexual assault and the search for both pure victims and monstrous perpetrators, “A young woman who gave an inebriated consent to a sexual relationship at a fraternity party may not be a ‘pure’ victim. … Yet that does not mean that we withhold either our sympathy from her or our critical scrutiny from the man who took advantage of her vulnerability. At the same time, morally critical scrutiny of the assailant's actions cannot mean indifference to his fundamental welfare, either” (124). Ultimately, Kaveny maintains, “We can insist that he be appropriately punished while taking steps to ensure that the punishment does not degrade his humanity or deprive him of an opportunity to set his life on a better course” (124).
But there is another problem with victim impact statements, akin to the problems raised by the interdisciplinary turn to narratives mentioned above. The role of personal experience can be a double-edged sword. It can, Kaveny observes, “provide a secure foundation upon which to build analogical and imaginative extensions of empathy,” but it can also “impose a virtually impregnable barrier to compassion” (126). The problem, Kaveny continues, is that “[i]f we uncritically treat our own experiences as normative, we can be tempted to discount the vision and voices of other persons with other experiences. We can disregard their suffering, telling ourselves that if they had only behaved more like we do, it could have been avoided” (126). This can have particular effects in courtrooms—sometimes in ways that distort or even thwart justice. Compassion, thus, should not be accepted uncritically or at face value. As Kaveny argues,
Compassion is always a dialogue between the self's view of the other's situation and the other's own view of that situation. In exercising compassion we attempt to “walk a mile in the shoes of the other,” but this attempt can easily shift into a moment of judgment rather than fellow feeling. We can override their own feelings, by attributing to them what we would have felt in their place—a projected experience that is ultimately highly misleading. Sometimes we put ourselves in the shoes of another—but not in their bodies, minds, and hearts. We try out their situations—but not their selves. (129)
These concerns about individuals’ capacity for compassion, in concert with larger social issues, prompt Kaveny to concede that, for all the power and emotion of victim impact statements, those who recommend against their use have the “better of the ethical and political argument” (135). The problem with victim impact statements, Kaveny argues, is that “[w]hile it proclaims justice for all, our legal system remains deeply socially stratified, particularly by race and economic status. In such a context, the use of victim statements poses too great a likelihood that victims will be sorted into categories based on social worthiness, and the fate of defendants will become even more dependent upon the relative rhetorical skills of their counsel” (135). In the narrative contest that constitutes a criminal trial, the weaknesses of too great a reliance on narrative becomes apparent, and injustice may be the result.
Love and Justice
From Farley and compassion, Kaveny moves to Paul Ramsey and “culture wars.” The title of Kaveny's book, in fact, is adapted from Ramsey's book Ethics at the Edges of Life. Kaveny describes how Ramsey, a Protestant ethicist known mostly for his work on just war theory and bioethics became a “harbinger of the culture wars that fully inflamed certain segments of American Christianity a quarter of a century after it was published” and how “the strategies he recommended in the mid-1970s became key elements of the conservative playbook over the next several decades” (139–40). As seems often to be the case with theorists in the normative fields of law and religion, Ramsey is one who evolved through several phases in his long career: (1) a “love and justice” period, (2) a “creation and covenant” period, and (3) a “Christian combativeness” period, by Kaveny's account (140). Revisiting this trajectory, Kaveny argues that Ramsey was “not always this sort of culture warrior” and that he “did not always view the secular legal system as implacably hostile to Christian moral norms,” but rather was “at the vanguard of American theological ethicists who have taken the law seriously and even sympathetically as an intellectual conversation partner” (140). Tracking the evolution of a particular theorist's thought over time can have pedagogical value for students of law and ethics seeking to make their own arguments.
It appears, by Kaveny's account, that Ramsey's “love and justice” period contained the seeds of its own demise—for what prompted Ramsey's final turn toward “cultural conservatism” and “combative Christianity” was, in Kaveny's description, a “notable pessimism about the possibility of Christian love's transforming justice” (146). The problem that Kaveny sees as leading to Ramsey's shift is an “unwillingness to grapple straightforwardly with the relationship between sin and the law, and in particular with the role of human law in trying to corral sinful men and women into some sort of functioning political community” (150). Rather, Kaveny argues, “The ius civilis—that is a community's positive law—needs to take into account both the goodness of creation and the reality of sin and selfishness. Human beings commonly act from mixed motives. They are morally weak. The law cannot ask too much of them” (151). The question is one of how much the law can demand of human beings, while retaining any measure of effectiveness. Kaveny argues that in his early career, Ramsey grasped both the importance of “redemptive righteousness beyond the law and the good in law itself” and how the “law cannot aim at making saints”—how redemptive righteousness could not be a “direct aim or goal of the legal system” but could be a “transforming pressure” on lawmakers and judges opening up “graceful possibilities” (151). Kaveny agrees with Ramsey's sense that it is “inappropriate for the law to demand behavior that is beyond the capacity of almost all the citizenry, especially on pain of punishment,” but her concern is that Ramsey's early period reflected a view of love transforming justice that was “too easily and uncritically transposed into love transforming law” in a way that would lead to “raising the legal bar,” instead of recognizing that “in some circumstances, love will dictate leaving the requirements of law at a mercifully low level,” so as not to punish disproportionately or unduly (152).
There were problems, as well, with Ramsey's intermediate “covenant and creation” period. Here, Kaveny quotes Ramsey's own quotation of theologian Reinhold Niebuhr's well-known observation: “Man's capacity for justice makes democracy possible; man's propensity to injustice makes democracy necessary” (154). In such a situation, Ramsey issues three demands of secular law: “First, the law needs to be didactic; it needs to proclaim the morally correct course of action. Second, it needs to be punitive; it needs to condemn and punish serious violations of moral norms. Third, the law needs to protect socially threatened values by constructing a network of rules and regulations that function as a protective fence” (158). It is a concise formula, and one that roughly tracks the classic three uses of law articulated in the Christian tradition. Even so, Kaveny argues, “In my view, all three demands fall short of the mark for much the same reason: each of them treats an act of law almost as if it were an act of magic, capable of instantaneously bringing about a desirable situation or eliminating an undesirable one. Yet a legal decree, in and of itself, has no practical effect. It has to be integrated into the decision making of the law's subjects, who need to be able to factor its command or prohibition into their life plans in some workable way” (159–60). Kaveny thus cautions Ramsey against the view that “law alone” is sufficient, since “moral proclamation is not enough for moral pedagogy” (160).
In the case of what Kaveny characterizes as Ramsey's late-career “combative Christian” commitment to protection of human life at its beginning and end in the issues of abortion and euthanasia, she argues that “it is understandable that Ramsey would want to protect the equal value of human life by constructing a fence around it” (160). But, she continues, “once we start thinking in practical terms, putting a fence around one value often leaves other values insufficiently protected” (160). In end-of-life cases in bioethics for example, Kaveny raises questions about Ramsey's recommendation that life-prolonging treatment be provided to all regardless of cost and how such treatments will be made accessible on an equal basis to all in a society marked by pervasive inequality. In the case of abortion, it might also be necessary to consider what a policy of forcing women to bear unplanned and perhaps unwanted children might mean in terms of guaranteeing public and private forms of economic and social support to them in raising their children, which more and more women are choosing over adoption.
Categories, Wrongdoing, and the Problem of Legalism
The final three chapters in Kaveny's book examine the work of three late law and religion theorists—the Catholic theorists Robert E. Rodes, Jr. (d. 2014) and Germain Grisez (d. 2018) and the Eastern Orthodox ethicist H. Tristam Engelhardt (d. 2018)—as well as Cardinal Walter Kasper, president emeritus of the Pontifical Council for Promoting Christian Unity. Writing largely in practical fields of bioethics and marriage and family ethics, these four thinkers have left practical as well as theoretical legacies in the field of law and religion.
Relating Law and Theology
In the writings of Rodes on a range of matters in Christian jurisprudence, Kaveny finds compelling the argument that “important theological concepts have an inescapable juridical dimension that must be recognized and addressed if the concepts are to be rightly understood” (171). Kaveny maintains that Rodes is “not attempting to reduce theology to law, any more than he attempts to reduce law to theology,” but that he does suggest that “greater sensitivity to the ways in which theological claims can function rather like legal claims will assist the religious community in grappling with them appropriately” (171). In much the same vein, while Kaveny's book sets out to argue that theology and religious ethics can be informed by law, the reverse also turns out to be true. On this point of mutual benefit, Kaveny maintains, “Theology, in other words, is conscripted to provide additional strength, purpose, and richness to legal studies. But as I have argued in Ethics at the Edges of Law, there is no reason that the process of interdisciplinary enrichment cannot go the other way” (171). Indeed, she argues, “the sort of analysis characteristic of the legal profession can provide additional focus, precision, and nuance to theological studies” (171). Rode's work involves a number of sets of categories for understanding the force of normative claims of law and theology that shed light on the interrelatedness and distinctness of the two disciplines.
Mercy and Moral Action
Kaveny's analysis of the writings of Cardinal Walter Kasper, said to have influenced the thinking of Pope Francis in recent years on mercy and whether divorced and civilly remarried Catholics can receive communion, is assisted by an understanding of secular law on questions of “when wrongdoing begins, when it ends, and how people can put it behind them and move on with their lives.” Secular courts, in other words, “have something to teach us about the practice of mercy” (193). Drawing on the biblical teachings of Jesus, Kaveny argues, “As Jesus's conduct throughout Scripture reveals, his main concern is not to promote purity but instead to protect the vulnerable” (207). These concerns for mercy and vulnerability, in turn, can be applied to the issue of divorce and civil remarriage in a way that limits the period of wrongdoing and repentance for the first marriage to afford a moral freedom and “plank of salvation” (212) through restoration to the sacraments.
Legalism, Casuistry, and the Common Good
The final chapter on the thought of Catholic natural law theorist Germain Grisez and Eastern Orthodox ethicist H. Tristam Engelhardt notably addresses the specter of “legalism,” a problem in both law and theology. Here, Kaveny maintains, “The general consensus that legalism is unhelpful in a Christian moral framework is not matched by a corresponding consensus about either the exact definition of legalism or the precise impediments it poses to sound moral analysis. In part, this is because Christianity rejects not only legalism, but antinomianism” (213). Christianity has a “complicated and ambivalent” relationship with law (213). As Kaveny observes, “Distinguishing proper respect for the law, especially the moral law, from improper use of it or reliance upon it, especially the moral law, especially with regard to salvation, has occupied the attention of many a Christian theologian from apostolic times until the present day” (214). Engelhardt's solution is a “‘noetic’ approach to theological ethics” emphasizing “mystical union with God as the ultimate ground of moral knowledge” that is a challenge to more rationalistic Western Christian traditions, such as casuistry (214). Grisez's method, on the other hand, was to “retrieve, reform, and refurbish” the very casuistic tradition that Engelhardt has rejected” (214). But by Kaveny's account, neither denies the “relevance of norms, principles, and rules to Christian life” (215). “Neither is antinomian,” Kaveny insists, importantly (215).
Kaveny unites the thoughts of Engelhardt and Grisez through an analysis of Saint Thomas Aquinas's definition of law, a key aspect of which is ordination to the common good. Kaveny quotes the Second Vatican Council document Gaudium et spes on the definition of the common good. It is here that religious ethics may be able to assist law, given its long history of debates over the “appropriate balance between protecting the good of the individual and safeguarding the good of the many in promoting the common good” (225). Indeed, Kaveny's reflections in all four books reviewed in this symposium—Law's Virtues, A Culture of Engagement, Prophecy without Contempt, and Ethics at the Edges of Law—illustrate the centrality to both law and religious ethics, in our often secular, individualistic, and fragmented age, of the attention to the common good. It is an idea powerfully described by Saint Thomas Aquinas as amounting to the final, but not the least, of the three precepts of the natural law, residing in our humanity as “an inclination to good … a natural inclination to know the truth about God, and to live in society … for instance, to shun ignorance, to avoid offending those among whom one has to live, and other such things.”Footnote 5 Know the truth, live in society, shun ignorance, avoid offense—all important lessons for our age.
Law and Religion Pedagogy in “Interesting Times”
Kaveny's concerns for the pedagogy of law and religion, which run throughout her analysis of the nine theorists discussed above, come in what might be described as interesting times, according to the oft-cited but apparently apocryphal ancient Chinese curse. Every reading of a book informs different readers in different ways, and for this reader, Kaveny's synthesis of law and religious ethics was inevitably read through the lens of challenges that have faced both fields in recent years. Indeed, the fields of law and religious studies have changed markedly in the last two decades in ways that make Kaveny's observations about pedagogy in law and religion that much more salient.
The field of religious studies, in particular, underwent a seismic shift with the 9/11 terrorist attacks.Footnote 6 All of a sudden, religion was on the public mind like never before. Religion departments in the United States and Europe hired more scholars of Islam, Hinduism, Buddhism, and other non-Western religions. There was a public need to know, and the field of religious studies was determined to meet that need. But religious studies also had to justify itself as a largely interdisciplinary field at the intersection of textual studies, historical studies, social scientific studies, normative studies, and other fields—and as a secular field of study in a world increasingly characterized—globally, and sometimes almost paradoxically—by both rising secularism and religious resurgence. To a large degree, religious studies did what the then new field of law did when law schools were set up in the late nineteenth century—it “scienced” up. In religion, there was a notorious split between the more social science–oriented field of religious studies and the more normative, theological, and scripture-linked biblical studies—which led in 2003 to a divorce, later reconciled, between the field's the two primary scholarly organizations, the American Academy of Religion and the Society of Biblical Literature.Footnote 7
In the midst of these shifts in the field of religious studies, it was the normative subfields of theology, philosophy of religion, and ethics that seemed to suffer the most. In terms of numbers of faculty openings as a measure of the field, studies commissioned by the professional associations showed a steady reduction in faculty positions in the normative studies fields of theology, philosophy of religion, and ethics from 2001 to 2010.Footnote 8 In fact, the decline in the normative subfields began in 2002, after the “tech bust” and the 9/11 attacks, and thus preceded the 2008 global economic recession that affected religion and other humanities departments across the board—so the diminution seemed to be about more than just money.Footnote 9 Positions in the more social scientific areas of the field continued to grow, as did those in Islamic studies, non-Western religions, and “global Christianities” of the developing world.Footnote 10
It might be argued that the normative subfields of theology, philosophy of religion, and ethics also suffered from their position squarely in the middle of battles that led to the disciplinary split in religious studies. The normative fields are among the most interdisciplinary subfields of the already interdisciplinary field of religious studies. Religious ethics borrows significantly from other fields—philosophy, history, political theory, literature, social sciences, art and aesthetics, and other disciplines—in accomplishing its core tasks of understanding how people of faith make meaning of their lives and live out their values in that light. There have also been important recent calls for normatively infused ethnographic and narrative approaches in the field.Footnote 11
This sense of the connectedness between law and religion, fact and value, nomos and narrative, is the basis for Kaveny's early observations in Ethics at the Edges of Law that law and religious ethics might be apt conversation partners. But religious ethics pursues its investigations in a context in which lip service is often paid to interdisciplinary study, even as interdisciplinarity remains poorly implemented in practice. And ethics can seem all too easily left to philosophy, political theory, practical theology, and other fields. Thus, oddly, in an era marked by terrorist attacks, war, growing economic inequality, medical and technological developments, ongoing debates over sex, gender, and family, and many other issues that might be informed by religious ethics, normative inquiry into the interdisciplinary dimensions of these began to be sidelined in the first decade of the twenty-first century as the field of religious studies underwent restructuring and reduction.
In light of these recent developments and findings, Kaveny's suggestion that the field of religious ethics pay more attention to law could be seen as the tossing of a legal life preserver to a flailing religious ethics field—even as the strength of the legal field's prestige and capacity for self-preservation has itself been in doubt. Indeed, the field of law has also been lately in crisis,Footnote 12 as automation, global outsourcing, and related forces, transformed what was often a quasi-scholarly field of research, document mining, and wordsmithing into a field that needed fewer lawyers. The contraction of the legal field, particularly after the 2008 recession, prompted significant downsizing and restructuring of many law schools and programs, with greater focus on technologies that were transforming the field and clinical programs to prepare lawyers more directly for the practice of law, even as the field of legal practice was also shrinking.Footnote 13 Large law firms are, as ever, the biggest employers of new lawyers, but they are also hiring fewer new lawyers and declining partnership to more of them. The services of big firms are being directed more toward the affluent sectors of society that can afford them. The legal field has begun to speak of the practice of law eventually being confined to “boutique” firms and services, with the rest of society left to fend for themselves with do-it-yourself law apps and forms.Footnote 14 Meanwhile, public defenders and other law services for the less well-off continue to diminish, and economic inequality increasingly translates into legal inequality for those of lesser means.Footnote 15
In the midst of these concerns about the pedagogy and profession of law—the kinds of concerns that often prompt an inward focus on practical training rather than interdisciplinary inquiry—there have still been calls for law not to cast off its humane and liberal dimensions.Footnote 16 Those who argue for more liberal and interdisciplinary approaches in legal pedagogy point to the importance of information and methodologies from many sources in addressing and solving the complex social and political problems of which law is an integral part. For example, in considering proposals to shorten the law school curriculum to two years, law professors Erwin Chemerinsky and Carrie Menkel-Meadow argued, “If law school were of just two years’ duration, the first things to be cut would be clinical education and interdisciplinary courses, which are the best innovations since we went to law school in the 1970s. We agree that legal education could benefit from further innovation, but not in the ways many of the critics advocate. Law schools need to teach a greater diversity of subjects to improve legal judgment and decision-making.”Footnote 17 Indeed, they further argued, “Law school faculties, in their teaching and their scholarship, must deal with the emerging problems of the 21st century. Law schools need to develop new courses to provide students with the expertise to deal with the crucial problems of our time in fields like banking law, national security, conflict resolution, food safety, internet law and migration policy. There should be ‘problem-based’ seminars in fields such as public health, homelessness, environmental habitat regulation and world peace.”Footnote 18
Law programs that provide instruction in judgment and decision making on ethical problems should be the order of the day, and in this sense, Kaveny's book points to new ways forward through traditions, narratives, norms, and values that have increasingly seemed to get short shrift in our more social scientific and quantitative world. Interdisciplinary inquiry of this sort at the intersection of law and religion, as well as other fields of the liberal arts and social sciences, can help legal practitioners connect their work to broader understandings and narratives of tradition, democracy, authority, and change. It can prompt lawyers to connect their work to principles of love, justice, compassion, and mercy. It can temper tendencies toward narrow legalism and specialization and toward purely technical or transactional approaches to law. These are all ways in which legal pedagogy can benefit from a conversation with religious ethics.
In the end, while Kaveny's book and its conceptually rich mining of the disciplines of law and religious ethics is directed, in the first instance, toward the revitalization of the field of religious ethics, Kaveny's many reflections on legal pedagogy suggest that interdisciplinary approaches can benefit the study of law, as well. Law and religion, in this sense, can mutually benefit each other. Religious ethics can humanize law, but law can also give some pragmatic and policy heft to projects in religious ethics. In a time of social and political polarization, when politics and religion are still regarded as unacceptable topics for polite conversation in some circles, the underlying normative commitments of the fields of law and ethics seem, perhaps paradoxically, more crucial. The texts, traditions, and social science methodologies of the larger field of religious studies are important, but ethics in tandem with law is where the proverbial rubber meets the road, and we must step away from the purely descriptive realm of religious studies into the edgier realm of norms and narratives, values and virtues—all of which are captured in the other of Kaveny's volumes reviewed in this symposium, the most recent being Ethics at the Edges of Law.
