Law's Virtues

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

CATHLEEN KAVENY
Copyright Date: 2012
Pages: 304
https://www.jstor.org/stable/j.ctt2tt4kn
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  • Book Info
    Law's Virtues
    Book Description:

    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.

    eISBN: 978-1-58901-933-1
    Subjects: Religion

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. ACKNOWLEDGMENTS
    (pp. ix-x)
  4. PREFACE
    (pp. xi-xii)
  5. Introduction
    (pp. 1-12)

    In this book i sketch a new framework through which to view the relationship between troubling “life issues” and the realm of law in pluralistic liberal democracies such as the United States. At present, many people who oppose practices such as abortion and euthanasia, including many Catholics, seem to assume the relationship between law and morality is limited to two antipodal options. On the one hand is the firewall model: personal opposition to such practices aside, the law should be morally neutral in order to avoid imposing one particular set of values upon the entire society. On the other hand...

  6. Part I Law as a Moral Teacher
    • CHAPTER 1 Autonomy, Solidarity, and Law’s Pedagogy
      (pp. 15-44)

      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...

    • CHAPTER 2 Law and Morality: Understanding the Relationship
      (pp. 45-70)

      It seems as if every complicated moral issue sooner or later becomes a legal issue, at least in the United States. Consider, for example, the recent tobacco litigation in which persons harmed by smoking and the states responsible for paying their costs sued tobacco companies for monetary damages.¹ The underlying moral question was whether tobacco companies should profit by selling such a dangerous product. This moral question immediately generated numerous legal questions. For example, why should we allow those harmed by smoking to sue the cigarette manufacturer under tort law? Does it matter if a smoker knew about the risks...

  7. Part II Life Issues and the Law
    • CHAPTER 3 The Pro-Life Movement and the Purpose of Law
      (pp. 73-96)

      Roe v. Wade has been the law of the land for about forty years, or about the average length of a woman’s reproductive span.¹ For an individual, forty years is the age of mature adulthood, of continued vigor combined with good judgment. Perhaps that is true of political movements as well. Perhaps the pro-life movement is just now reaching mature adulthood, coming into its own, ready to take responsibility not only for itself but also for the broader community that it is trying to teach and trying to serve. To take responsibility for the future, however, we need to come...

    • CHAPTER 4 Bad Pedagogy, Bad Law: What FOCA Is—and Isn’t
      (pp. 97-110)

      In chapter I argued that, even in a pluralistic liberal democracy such as ours, accounting for the function of law as a moral teacher is an important aspect of both theorizing about law and law-making itself. At the same time, the moral message of a law is not the only thing that matters. The law’s pedagogical function cannot be separated from other aspects of good law, such as its capacity to coordinate the activities of various groups and individuals, in large part by providing clear direction to those it purports to bind.

      Thomas Aquinas clearly recognizes that the pedagogical function...

    • CHAPTER 5 Genetic Information and Razian Autonomy
      (pp. 111-140)

      At a white house press conference held in June 2000, President Bill Clinton announced that the first draft of the sequencing of the entire human genome had been completed two years ahead of schedule.¹ His announcement marked a major milestone of the Human Genome Project (HGP), an international collaborative effort whose scientific goals included sequencing the three billion DNA base units in the human genome and identifying the estimated thousands of genes that are located on the twenty-three pairs of human chromosomes.²

      During the White House festivities President Clinton not only celebrated the scientific accomplishment but also looked forward to...

    • CHAPTER 6 Dying Gracefully
      (pp. 141-162)

      In november 1996, just two weeks before he died, Joseph Cardinal Bernardin finished his book The Gift of Peace, in which he offers his meditations on three widely publicized events that punctuated the last years of his life: the false accusation of sexual abuse and his eventual reconciliation with his accuser; the diagnosis of an extremely aggressive form of cancer and his initially successful medical battle, which won him fifteen months of remission; and finally, the return of the disease and his decision to live fully for the remaining span of time allotted to him.¹ Bernardin recounts how all three...

    • CHAPTER 7 Dying Well, Assisted Suicide, and Constitutional Law
      (pp. 163-186)

      Each year june 26 comes and goes peaceably and uneventfully at the Supreme Court of the United States. Tourists pose for photographs on the imposing marble steps while political reporters wait impatiently for the last decisions of the Court’s current term. The Capitol police and US marshals are always vigilant; nonetheless, the annual arrival of that particular day poses no special challenges to them. In short, June 26 in Washington, DC, is nothing like January 22, the anniversary of Roe v. Wade.¹ And therein lies an important jurisprudential lesson.

      On June 26, 1997, the Supreme Court handed down two historic...

  8. Part III Voting, Morality, and the Law
    • CHAPTER 8 Voting and Faithful Citizenship
      (pp. 189-218)

      In 2007 the united states conference of catholic bishops (USCCB) issued “Forming Consciences for Faithful Citizenship,” a guide for American Catholics to use in discerning their political responsibilities in the face of the upcoming 2008 national elections.¹ In 2011 the bishops reissued the same document for the 2012 elections, along with a new introductory note.² No one doubts that the ballots cast by Roman Catholics are key in determining the results of national elections in the United States, although their role as “swing voters” is often overstated.³ The actual impact of the bishops’ guide upon the political choices made by...

    • CHAPTER 9 Intrinsic Evil and Political Responsibility
      (pp. 219-242)

      In chapter 8 i argue that, in our American representative democracy, any moral analysis undertaken by voters must center on the candidates, whom voters need to evaluate in terms of their competence, character, collaborative potential, and political connections. This is not to say that issues are irrelevant—far from it. However, voters do need to evaluate issues in a strategic and action-oriented manner, not in an abstract way. Voters should prioritize issues not merely on the basis of their importance (meaning their significance within the basic political framework of the society) but also their urgency (meaning their immediate potential to...

    • CHAPTER 10 Voting and Complicity in Wrongdoing
      (pp. 243-270)

      In chapter 8 i sketch a moral account of the act of voting in the context of the American political system. In my view, the crucial aspect of most American elections is that they present voters with choices about candidates, not choices about issues. Consequently, the voters’ main task is to evaluate the various candidates in terms of their potential to serve the common good with competence and integrity. This is not to say that substantive issues do not matter. In casting their ballots, however, voters must not evaluate issues merely in the abstract but rather in concrete relation to...

  9. Concluding Reflections
    (pp. 271-278)

    In writing this book, I was motivated not only by specific intellectual questions but also by more diffuse goals, concerns, and worries. As I bring this work to a close, I want to summarize the former and articulate the latter more explicitly. I want to situate, in other words, my reflections on law’s pedagogical function in the broader context of law, religion, and politics in the contemporary United States.

    The overarching purpose of the volume is to make a case for the way in which law can and should function as a moral teacher, even in a pluralistic representative democracy...

  10. Index
    (pp. 279-292)