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i
Ethics at the
Edges of Law
Christian Moralists and
American Legal Thought
z
CATHLEEN KAVENY
1
iv
1
Oxford University Press is a department of the University of Oxford. It furthers
the University’s objective of excellence in research, scholarship, and education
by publishing worldwide. Oxford is a registered trade mark of Oxford University
Press in the UK and certain other countries.
1 3 5 7 9 8 6 4 2
Printed by Sheridan Books, Inc., United States of America
v
To the
Religion Department Lounge
1879 Hall
Princeton University
vi
vi
Contents
Preface ix
Acknowledgments xiii
Introduction xv
viii Contents
Conclusion 239
Notes 243
Index 285
ix
Preface
x Preface
Preface xi
Acknowledgments
The chapters in Ethics at the Edges of Law: Christian Moralists and American
Legal Thought wrestle with the writings of important contemporary scholars
in the field of Christian ethics, all of whom have taught me a great deal
about fundamental questions of love and justice. I thank my interlocutors
for the opportunity to engage their ideas and benefit from their wisdom,
not only in print but also in many face-to-face conversations over the years.
I would also like to extend my appreciation to colleagues at Duke
University, Princeton University, St. John’s University, the University of
St. Thomas, the University of Virginia, and Yale University for inviting
me to try out some of my ideas in conferences and colloquia they organ-
ized. Special thanks to friends at the University of Notre Dame (where I
taught for many years) and Boston College (my new home) for helping me
think more deeply about the intersection of theology and law, especially
Lisa Sowle Cahill, John Finnis, James Keenan, John Paris, John Robinson,
and Vincent Rougeau. I benefited enormously from the generosity of John
Coughlin, Michael Perry, and Jonathan Rothchild, who graciously provided
incisive comments on the entire manuscript. I am also indebted to William
Werpehowski for his wise advice. Lu Ann Nate, my assistant at Notre Dame,
was extremely helpful in the early days of the project. Daniel DiLeo, a gradu-
ate student in theological ethics at Boston College, provided insightful sug-
gestions as I brought the manuscript to completion. Some of the chapters in
this book are revised versions of my previously published essays, reworked
to contribute to a coherent whole. They are: “Listening for the Future in
the Voices of the Past: John T. Noonan, Jr. on Love and Power in Human
History,” Journal of Law and Religion 11, no. 1 (1994): 203–27, “A Response to
John T. Noonan, Jr.,” Proceedings of the Catholic Theological Society of America
54 (1999): 57–64, and “Development of Catholic Moral Doctrine: Probing
the Subtext,” University of St. Thomas Law Journal 1, no. 1 (2003): 234–52
(chapter 1); “Hauerwas and the Law: Framing a Productive Conversation,”
xvi
xiv Acknowledgments
Law and Contemporary Problems 75, no. 4 (2012): 135– 60 (chapter 2);
“Between Example and Doctrine: Contract Law and Common Morality,”
Journal of Religious Ethics 33, no. 4 (2005): 669–95 (chapter 3); “Erastian
and High Church Approaches to the Law: the Jurisprudential Categories of
Robert E. Rodes, Jr.,” Journal of Law and Religion 22, no. 2 (2007): 405–32
(chapter 7); “Mercy, Justice, and Law: Can Legal Concepts Help Foster New
Life?,” in George Augustin, ed., Marriage and Family: Relics of the Past or
Promise of the Future? (Mahwah, NJ: Paulist Press, 2015), 75–106 and “Mercy for
the Remarried: What the Church Can Learn from Civil Law,” Commonweal,
August 14, 2015. (chapter 8); and “What is Legalism? Engelhardt and Grisez
on the Misuse of Law in Christian Ethics,” The Thomist 72, no. 3 (2008):
443–85 (chapter 9). All citations to Scripture are from the New Revised
Standard Version, as accessed on the website BibleGateway.
I am very grateful to Cynthia Read, my editor at Oxford University
Press, for her support and patience. And I extend my heartfelt appreci-
ation to my friends and family for their encouragement—and their sus-
tained forbearance—as I brought this manuscript to completion.
xv
Introduction
xvi Introduction
Introduction xvii
legal cases and doctrines (part II), to an examination of how legal concepts
and categories can shed light on current problems and controversies in
Christian ethics (part III). Taken as a whole, the book aims to demonstrate
the substantive contributions that engagement with the law can make to
important discussions in different facets of the field.
xviii Introduction
Introduction xix
xx Introduction
Introduction xxi
ways of categorizing law. One can distinguish between criminal law, which
concerns norms whose violation is seen as an attack on the whole com-
munity, and civil law, which regulates the behavior between and among
members of that community. One can differentiate between federal law
and state law, as well as between common law and statutory law. Just as
Christian ethicists work in different subspecialties, so do legal scholars;
their work includes fields such as administrative law, constitutional law,
corporate law, international law, tax law, and trusts and estates. Just as
Christian ethicists operate with different foundational commitments, so
do legal theorists and judges. Some see the fundamental point of legal
norms as maximizing economic efficiency, while others maintain that its
purpose is to protect and expand the sphere of individual freedom. Just as
Christian ethicists adopt different methodologies, so do lawyers and legal
scholars. Some are strict constuctionists, emphasizing the “letter” of the
law, while others are comfortable allowing the “spirit” of the law to develop
organically over time.
In making a case for a more constructive and fruitful relationship
between Christian ethics and law, I cannot do justice to all areas or per-
spectives in legal studies, any more than I can do justice to all areas or
perspectives in Christian ethics. At the same time, I am committed to en-
gaging legal matters with some particularity, rather than remaining on
the level of generalities. So, I have repeatedly drawn from the areas of law
I know best: the common law of contracts, which I have taught to first-year
law students for over two decades, aspects of criminal law that are related
to my longstanding interest in the relationship of mercy and justice, and
facets of criminal procedure that help define distinct human acts for pur-
poses of moral and legal analysis.
I hope all these points of contact between law and Christian ethics are
fruitful and interesting. At the same time, the last thing I want to do is
imply that the legal topics and cases I draw on here exhaust the possi-
bilities for engagement. My earnest hope is that other scholars will build
many additional bridges, showing how concepts and cases from tort law,
insurance regulation, property law, and many other legal fields can both
enrich and challenge the ongoing work of Christian ethics.
xxi
xxi
PART I