Law's Virtues

Fostering Autonomy and Solidarity in American Society

Cathleen Kaveny

• Publisher: Georgetown University Press
• Year: 2012
• ISBN:
  9781589019331
• Topic: Theology & Religion
• Subtopic: Christian Theology

Can the law promote moral values even in pluralistic societies such as the United States? Drawing upon important federal legislation such as the Americans with Disabilities Act, legal scholar and moral theologian Cathleen Kaveny argues that it can. In conversation with thinkers as diverse as Thomas Aquinas, Pope John Paul II, and Joseph Raz, she argues that the law rightly promotes the values of autonomy and solidarity. At the same time, she cautions that wise lawmakers will not enact mandates that are too far out of step with the lived moral values of the actual community.

According to Kaveny, the law is best understood as a moral teacher encouraging people to act virtuously, rather than a police officer requiring them to do so. In Law's Virtues Kaveny expertly applies this theoretical framework to the controversial moral-legal issues of abortion, genetics, and euthanasia. In addition, she proposes a moral analysis of the act of voting, in dialogue with the election guides issued by the US bishops. Moving beyond the culture wars, this bold and provocative volume proposes a vision of the relationship of law and morality that is realistic without being relativistic and optimistic without being utopian.

PART I

Law as a Moral Teacher

CHAPTER 1

Autonomy, Solidarity, and Law’s Pedagogy

A WOMAN WITH AN OBVIOUS DISABILITY making her way along Chicago’s Michigan Avenue in December 1970 would not have been simply enjoying the spectacle of one of the nation’s busiest commercial venues at the height of the Christmas shopping season. Whether she knew it or not, she also would have been engaged in an illegal act, for on the books of the Chicago Municipal Code at that time was an ordinance colloquially known as “the ugly law,” which provided that “no person who is diseased, maimed, mutilated or in any way deformed so as to be an unsightly or disgusting object or improper person to be allowed in or on the public ways or other public places in this city, or shall therein or thereon expose himself to public view, under a penalty of not less than one dollar nor more than fifty dollars for each offense.”¹ Cities such as Columbus, Ohio, and Omaha, Nebraska, had similar laws—and they were not repealed until the mid-1970s.²

Most of us today recoil at the ugly law’s view of persons with disabilities; to contemporary ears, the law’s title is an accurate, if ironic, reflection of the moral quality of the law’s expressed sentiments. But what, precisely, is objectionable about it? In my view, the salient objections can be grouped into three categories.

First, the ugly law places significant practical barriers in the way of persons with disabilities. It prevents them from going about their business; it dissuades them from living their day-to-day lives. If they nonetheless decide to attempt to do so, they risk being arrested, penalized, and publicly shamed for engaging in activities that most of us take for granted, such as going shopping, visiting friends, and attending worship services.

A second problem has to do with the normative presuppositions behind the ugly law—the concrete prohibitions and penalties are infused with a morally freighted vision of how human beings should live their lives together. The ugly law adopts a particular view of the value of an individual, conveying the message that it is important to be “normal”—to be aesthetically pleasing (or at least not disgusting) to others. In addition, it communicates a clear vision of the respective obligations of different groups of persons within the broader society. Those with disabilities have an obligation to stay out of the way—and out of the line of sight—of those who are “normal.” By contrast, “normal” persons have very few, if any, obligations to extend themselves in any way toward the mentally and physically challenged individuals who come across their paths. In the vision of reality inculcated by the ugly law, chance and accident can create a moral and social chasm between people. The random circumstances of one’s conception or birth (e.g., I was born with Down syndrome, you were not) or of one’s life (e.g., the drunken driver hit her but missed him) can determine whether one is deemed worthy to participate in the public life of the community.

Third, the broad ramifications of the message conveyed by the ugly law are also very troubling. Assume that the citizens of Chicago internalize the normative vision of the worth of persons with disabilities that is tacitly presupposed by the law. Does it not seem likely that those citizens will also apply the law’s norms even in contexts where the law does not explicitly govern? For example, how will so-called normal people relate to persons with disabilities in private settings? And how will persons with disabilities view themselves? If they do not have the right to walk the city streets in peace, will they ever be able to see themselves as anything but second-class citizens in other areas of their lives? Will they not be forced to confront internal and external pressures, sometimes subtle, sometimes overt, to make themselves invisible and to refrain from making any claims on the attention or concern of “normal” members of the community?

Thus the problem extends far beyond the fact that the ugly law tightly restricts the ability of persons with disabilities to go about their day-to-day lives; the deeper difficulty is the intrinsic messages that the law conveys about the relative worth of persons with disabilities. The effects of these messages are not limited to the streets of Chicago but can also influence interactions between people in many other contexts. Consequently, any adequate moral analysis of the ugly law must move beyond its concrete requirements and prohibitions to consider these wider ripple effects.

More generally, the example of the ugly law suggests that a crucial challenge facing those of us concerned about the relationship between law and morality is to find a way to grapple with the issue of law’s underlying normative vision in a manner that is both straightforward and sophisticated (incongruous as those qualities might seem). Always and everywhere, law teaches a moral lesson—it imbues a vision of how the members of a particular society should live their lives together. Political communities need to acknowledge the fact that law teaches and to take responsibility for what it teaches. Needless to say, in highly complex and pluralistic societies, deciding what values and virtues various bodies of law should embody and foster is a daunting task. I do not claim otherwise. But if citizens deliberately leave these questions about law unarticulated and unaddressed, we will only heighten the challenge of forging just political and civic communities.

In the remainder of this chapter I begin to grapple with the issue of how to take responsibility for law’s pedagogical function in the context of Western liberal democracies. My central case is the United States, although my argument could be extended by analogy to other developed countries marked by increased pluralism, complexity, and a commitment to the value of individual liberty. I set out in some detail the theoretical view of the relationship of law and morality that animates the more topically oriented chapters that compose the rest of the book. In a nutshell, I argue that the civil law can, should, and does function as a moral teacher, even in pluralistic societies such as the United States.

Let me begin by critically examining the components of a contrasting understanding of law that I will call “law as police officer,” which has become highly influential among Anglo-American legal theorists and in American society. This metaphor describes a strand of liberal legal theory that has its roots in the thought of John Stuart Mill.³ By “liberal legal theory” I mean any legal theory that holds individual liberty to be an overriding moral and social value. Consequently, in framing law, legislatures ought to exercise a “presumption in favor of liberty,” understood as the absence of coercion. Any infringement upon individual liberty requires a good reason. In the view of liberal legal theorists, then, “liberty should be the norm, coercion always needs justification.”⁴ This statement, of course, could be adopted by a wide range of legal theorists, including those who are not liberal. It needs to be supplemented by the recognition that liberal legal theorists not only place the bar of justification very high but also do not consider certain reasons for passing coercive laws to be legitimate in the first place.

Many advocates of the “law as police officer” approach contend that the law (particularly the criminal law) should generally be restricted to prohibiting actions that wrongfully harm other persons; in their view, it is morally inappropriate to use the tools of the criminal law to proscribe so-called harmless immoralities or to enforce community values. Taking as my conversation partner Joel Feinberg, whom I believe to be the most rigorous and interesting contemporary representative of this strand of liberal legal philosophy, I argue that the “law as police officer” approach is deeply inadequate.⁵ Drawing in part upon Thomas Aquinas’s understanding of the nature, purpose, and limits of positive law, I then sketch my own alternative understanding of “law as teacher.”

Before proceeding, let me emphasize that I mean the two labels of “law as police officer” and “law as teacher” to function as heuristic devices, not as comprehensive and exhaustive analytical categories. They are designed to focus the reader’s attention on the question of the fundamental purpose of human law. I do not mean to deny that roughly similar answers to that fundamental question exhibit great variety among themselves. For example, I do not suggest that liberal legal theory is homogenous; indeed, it is far from it. With its touchstone in the writings of the great twentieth-century Oxford legal scholar H. L. A. Hart, contemporary analytic jurisprudence has deeply probed interrelated issues such as (1) the differences between natural law theory and positivism; (2) the effects of subjectivist or constructivist accounts of moral values, on the one hand, and objective or intrinsic account of such values (whether based on rights or natural law), on the other; and (3) the relationship of law, morality, and liberty in a pluralistic society.⁶ Different positions on the first two issues can lead legal theorists to have different views on the third issue.

Moreover, as complicated as the discussion in Anglo-American jurisprudence may be, it is rivaled by the intricacies of the debate over what counts as a sufficiently “Thomistic” moral or legal theory. In this realm, significant topics include (1) whether and in what respect Aquinas’s moral theory has to be understood as a virtue ethic as well as an ethic of natural law; (2) the relationship of rights language to both the language of virtue and natural law;⁷ and (3) the manner and degree to which natural law ought to exert its influence on the human law.⁸

My purpose in this chapter is not to engage or even to survey these extensive bodies of literature but to develop my own constructive approach in dialogue with a few key conversation partners. 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.⁹ At the same time, I build upon and adapt Aquinas’s reflections on the purpose of human law in order to deal with the challenges of lawmaking in a political society such as the United States, which is very different from the political context in which he wrote. To take but one example, I argue that autonomy and solidarity are key virtues for American law to foster, precisely because they enable both individual and communal flourishing in pluralistic liberal democracies. I do not claim, of course, that my account is the only way to update Aquinas’s views on the purpose and limits of human law to deal with contemporary challenges.

LAW AS POLICE OFFICER

I believe that the metaphor of “law as police officer” best evokes the basic approach of much (but, as we will see, not all) contemporary liberal legal theory. In essence, this approach to the relationship between law and morality suggests that the role of the law as a teacher of virtue is extremely limited because law operates negatively rather than positively. Many liberal theorists would claim that law, properly understood, centrally functions like a police officer guarding the boundaries of a piece of property. The fundamental purpose of law, under this view, is to keep people from acting in ways that wrongfully harm others (or their property); in operating as a negative constraint, law is not concerned with inculcating a positive vision of the way that people should live and flourish together. According to liberal legal theorists of this sort, it would be no more appropriate for law to tell a member of the community which view of flourishing to adopt than it would be for the security guard protecting a property’s boundary to dictate to the adjoining landowner what type of lawn grass to grow.

Advocates of the “law as police officer” approach rely upon a key theoretical tool known as the harm principle, which posits that the coercive function of the law, particularly the sanctions of the criminal law, should be invoked only to prohibit behavior that constitutes a wrongful harm to someone else. Some liberal legal theorists, such as Feinberg himself, narrowly supplement the harm principle with an offense principle that permits lighter criminal sanctions to be used against seriously offensive public behavior.¹⁰ Nonetheless, the bulk of Feinberg’s interest and attention is devoted to a defense of the harm principle. According to Feinberg, a wrongful harm to another has two key characteristics: it is a setback to that person’s interests, and it is a violation of that person’s rights.¹¹ The way he develops each of these characteristics merits both attention and criticism.

As his choice of the word “interests” suggests, Feinberg adopts a subjectivist account of value. That is, in his view, human beings do not seek to promote or protect goods, goals, or states of affairs because they are objectively valuable; rather, the inverse holds: these goods, goals, and states of affairs are valuable because they are sought after and valued by human subjects. In other words, they are valuable because they have become the focus of a particular human being’s interest.¹² Because human beings adopt innumerable, diverse...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Acknowledgments
• Preface
• Introduction
• Part I Law as a Moral Teacher
• Part II Life Issues and the Law
• Part III Voting, Morality, and the Law
• Concluding Reflections
• Index