Law’s Virtues: Fostering Autonomy and Solidarity in American Society

305 Pages·2012·14.113 MB·English

by  Cathleen Kaveny

Law’s Virtues
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Selected Titles from the
Moral Traditions Series
James F. Keenan, SJ, Editor
The Acting Person and Kinship Across Borders:
Christian Moral Life A Christian Ethic of Immigration
Darlene Fozard Weaver Kristin E. Heyer
Aquinas, Feminism, and Living the Truth: A Theory of Action
the Common Good Klaus Demmer
Susanne M. DeCrane
Loyal Dissent: Memoir of
Aquinas on the Emotions: a Catholic Theologian
A Religious-Ethical Inquiry Charles E. Curran
Diana Fritz Cates
The Origins of War:
Catholic Moral Theology in the
A Catholic Perspective
United States: A History
Matthew A. Shadle
Charles E. Curran
Overcoming Our Evil: Human
The Church and Secularity:
Nature and Spiritual Exercises
Two Stories of Liberal Society
in Xunzi and Augustine
Robert Gascoigne
Aaron Stalnaker
Creative Conformity: The
Prophetic and Public: The Social
Feminist Politics of US Catholic
Witness of US Catholicism
and Iranian Shi’i Women
Kristin E. Heyer
Elizabeth M. Bucar
The Sexual Person: Toward a
The Critical Calling: Reflections on
Renewed Catholic Anthology
Moral Dilemmas since Vatican II
Todd A. Salzman and Michael G. Lawler
Richard A. McCormick, SJ
The Social Mission of the US Catholic
Defending Probabilism: The Moral
Church: A Theological Perspective
Theology of Juan Caramuel
Julia Fleming Charles E. Curran
Family Ethics: Practices for Christians Theological Bioethics: Participation,
Julie Hanlon Rubio Justice, and Change
Lisa Sowle Cahill
John Cuthbert Ford, SJ:
Moral Theologian at the End United States Welfare Policy:
of the Manualist Era A Catholic Response
Eric Marcelo O. Genilo, SJ Thomas J. Massaro, SJ
Law’s Virtues
l
Fostering Autonomy and Solidarity
in American Society
Cathleen Kaveny
Georgetown University Press / Washington, D.C.
© 2012 Georgetown University Press. All rights reserved. No part of this book may be
reproduced or utilized in any form or by any means, electronic or mechanical, including
photocopying and recording, or by any information storage and retrieval system, without
permission in writing from the publisher.
Library of Congress Cataloging-in-Publication Data
Kaveny, Cathleen.
Law’s virtues : fostering autonomy and solidarity in American society / by Cathleen
Kaveny.
p. cm. -- (Moral traditions)
Includes bibliographical references and index.
ISBN 978-1-58901-932-4 (pbk. : alk. paper)
1. Law--Moral and ethical aspects--United States. 2. Law and ethics. I. Title.
KF380.K38 2012
174’.30973--dc23
2012003150
This book is printed on acid-free paper meeting the requirements of the American
National Standard for Permanence in Paper for Printed Library Materials.
20 19 18 17 16 15 14 13 12 9 8 7 6 5 4 3 2
First printing
Additional Praise for Law’s Virtues
“Through an impressive analysis that draws on her scholarly training in law and theol-
ogy, Kaveny argues for a more nuanced view of how law can function as a moral teacher
in a pluralistic society, reminding us that good lawmaking is practical, not merely
theoretical, and the laws we make must teach lessons to ordinary people, not saints.”
—Vincent Rougeau, dean, Boston College Law School
“Cathleen Kaveny, a moral theologian and law professor, writes this book from the
perspectives of a pro-life commitment and acceptance of some moral teaching func-
tion for law, and a deep respect for our pluralistic representative democracy with its
recognition of individual freedom. Her scholarly, thoughtful, well-written, balanced
exposition of the complex issue of the role of law and its application to the burning
issues of abortion, euthanasia, and genetics is must reading for all those interested in
this contemporary discussion.”
—Charles Curran, Elizabeth Scurlock University Professor of Human Values,
Southern Methodist University
“Law’s Virtues is an important and timely book. As the United States faces another
presidential election, the fundamental questions Kaveny addresses about the relation-
ship among law, moral theology, and political action will loom large before the public.
In lucid prose she explicates a convincing, broadly Thomistic theory of “the law as
teacher” and applies that theory to such vexing questions as abortion, euthanasia, and
genetic testing. Moreover, she provides a truly traditional understanding of such mis-
understood and frequently abused terms as “intrinsic evil” and “immoral cooperation.”
Kaveny helps us to understand what it means for voting to be a moral act, and how to
navigate our way through the culture wars using sound theology as a compass. This will
be an important book to read during this election season and in the years to come.”
—Daniel Sulmasy, MD, PhD, University of Chicago
“True to the title of the book, the author aims to model ways to think of law as a teacher
of virtue in a pluralistic society, thereby melding Aquinas’s classical reflection on virtue
with the rich way legal theorist Joseph Raz assesses autonomy, enriched by John Paul
II on solidarity. A tall order executed elegantly in prose accessible to all while deftly
clarifying distinctions, expressly to counter the way ethical tools (like “intrinsically
evil”) have been harnessed to misleading rhetorical use in “culture wars” rather than
used to illuminate taxing ethical issues. This painstaking study of the ways ethics and
law intersect invites an illuminating exchange between theory and practice to guide
citizens in voting as well as ethicists in assessing.”
—David Burrell, C.S.C., Hesburgh Professor Emeritus in Philosophy and
Theology, University of Notre Dame
To my parents,
Gerald Kaveny and Valerie Goulet Kaveny,
who taught all their children the importance of both autonomy and solidarity.
Contents
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Acknowledgments ix
Preface xi
Introduction 1
Part I Law as a Moral Teacher 13
Chapter 1 Autonomy, Solidarity, and Law’s Pedagogy 15
Chapter 2 Law and Morality: Understanding the Relationship 45
Part II Life Issues and the Law 71
Chapter 3 The Pro-Life Movement and the Purpose of Law 73
Chapter 4 Bad Pedagogy, Bad Law: What FOCA Is—and Isn’t 97
Chapter 5 Genetic Information and Razian Autonomy 111
Chapter 6 Dying Gracefully 141
Chapter 7 Dying Well, Assisted Suicide, and Constitutional Law 163
Part III Voting, Morality, and the Law 187
Chapter 8 Voting and Faithful Citizenship 189
Chapter 9 Intrinsic Evil and Political Responsibility 219
Chapter 10 Voting and Complicity in Wrongdoing 243
Concluding Reflections 271
Index 279
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Acknowledgments
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The publication of any book is the fruit not only of the author’s
autonomy but also of the solidarity and support extended to her by stu-
dents, colleagues, friends, and family. The University of Notre Dame has
offered me an unparalleled environment in which to consider questions at
the intersection of religion, morality, and law. Many thanks to Harrison St.
Germain, Esther Terry, and Craig Iffland, my research assistants; and Lu Ann
Nate, my administrative assistant. I am particularly grateful to Patti Ogden,
research librarian at Notre Dame Law School, who read through the entire
manuscript and made many valuable editorial suggestions.
I consider it an honor for this book to appear in the distinguished Moral
Traditions series published by Georgetown University Press. I am grateful
to Bill Werpehowski for suggesting to me that this would be an ideal home
for my manuscript. Anyone who knows Jim Keenan, the series editor, will
immediately grasp how helpful his energy and enthusiasm can be to an author
struggling to bring a manuscript to completion. Richard Brown, the director
of the press, has been extremely kind, patient, and helpful throughout the
process of publication.
The topics considered in this book have engrossed my attention for many
years, and have benefited tremendously from conversations in the hall and
over the lunch table with my law school colleagues, especially John Coughlin,
John Finnis, and John Robinson. Talking about our disagreements has been as
fruitful for me as considering the convergences in our thought.
I am profoundly grateful for the longstanding personal and professional
encouragement of four distinguished scholars and loyal friends: Gerhard
Böwering, Margaret Farley, Vincent Rougeau, and Robin Darling Young.
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