2. What sort of language can we use to articulate appropriately and effectively the demands of the moral law in a religiously pluralistic society? Can we find some way to articulate the demands of the moral law in a way that can be understood across eligious traditions? 3. Does the use of religious language or a theological foundation for the moral law constitute an improper attempt to smuggle theological beliefs into the civil law of a uralistic society 4. Does the use of legal coercion as a means to shape culture improperly infringe on the right to freedom of conscience? Does such a reliance on legal coercion fail to observe with sufficient care the distinction between the sphere of culture and the political/juridical sphere? 5. Would a more consistent adherence to Thomistic legal theory -focusing on law as a tool to educate for virtue- afford a more fruitful way approach to the law in the context of American pluralism than the rights-based approach of evangelium vitae? Would a more thoroughgoing Thomistic approach better allow us to draft laws that honor the moral claims made by the inviolability of the most vulnerable in society while also respecting the moral limitations of those who must respect those claims under difficult circumstances? 59 S6 See J. Bryan Hehir, Get a(Culture of) Life: The Pope's Moral Vision, 122 COMMONWEAL 8-9 (May 19, 1995). Hehir draws a contrast between John XXlll's philosophical treatment of human rights in Pacem in Terris(which provides much of the immediate foundation for John Paul Irs discussion of the a tension here between this vision and secular pluralistic culture which the encyclical never oice a e relationship between civil law and moral law)and John Paul Ils use of biblical imagery and theological reflection in Evangelium Vitae: " Unlike John XXXlIr's moral appeal to civil society.., John Paul calls upon all to enter into the rich symbolic discourse of the Scriptures to find direction for moral See Leslie C Griffin, Evangelium Vitae: Abortion, in CHOOSING LIFE, supra note 8, at 159-73 By relying primarily on a theological rationale rather than a natural law argument, Griffin reads Evangelium Vitae to be asking Catholic lawmakers and jurists "to inscribe their religious beliefs into the law of the United States. "While the church may be entitled to impose its theological doctrine on the faithful, Griffin concludes that"theological doctrine should not be imposed on non-Catholics by the state and politicians, not even by Catholic politicians. Id at 171 See Hollenbach, supra note 55, at 42-43(arguing that Evangelium Vitae fails to address the question of the relationship between laws educative role in shaping culture and the right to freedom of conscience and fails to observe with sufficient care the distinction between the sphere of culture and the political/juridical sphere)."IT]he linkage between civil freedom and adherence to truth as a political/juridical question is quite different from the fulfillment of freedom through attainment of a full vision of the human good on the level of culture. Id at 43 See Kaveny, The Limits of ordinary Virtue, in CHOOSING LIFE, supra note 41, at 132-49 Kaveny summarizes her critique of the jurisprudence of Evangelium vitae in this way: The Pope emphasis on rights language and exceptionless moral norms has hindered his ability to address the fundamental jurisprudential question raised in implementing the culture of life within a legal system: in drafting law, how do we honor the moral claims made by the inviolability of the most vulnerable members of the human community, even while recognizing the moral limitations of those who must respect those claims in very difficult situations? Id at 141
10 2. What sort of language can we use to articulate appropriately and effectively the demands of the moral law in a religiously pluralistic society?56 Can we find some way to articulate the demands of the moral law in a way that can be understood across religious traditions? 3. Does the use of religious language or a theological foundation for the moral law constitute an improper attempt to smuggle theological beliefs into the civil law of a pluralistic society?57 4. Does the use of legal coercion as a means to shape culture improperly infringe on the right to freedom of conscience? Does such a reliance on legal coercion fail to observe with sufficient care the distinction between the sphere of culture and the political/juridical sphere?58 5. Would a more consistent adherence to Thomistic legal theory – focusing on law as a tool to educate for virtue – afford a more fruitful way approach to the law in the context of American pluralism than the rights-based approach of Evangelium Vitae? Would a more thoroughgoing Thomistic approach better allow us to draft laws that honor the moral claims made by the inviolability of the most vulnerable in society while also respecting the moral limitations of those who must respect those claims under difficult circumstances?59 56 See J. Bryan Hehir, Get a (Culture of) Life: The Pope’s Moral Vision, 122 COMMONWEAL 8-9 (May 19, 1995). Hehir draws a contrast between John XXIII’s philosophical treatment of human rights in Pacem in Terris (which provides much of the immediate foundation for John Paul II’s discussion of the relationship between civil law and moral law) and John Paul II’s use of biblical imagery and theological reflection in Evangelium Vitae: “Unlike John XXXIII’s moral appeal to civil society . . . , John Paul calls upon all to enter into the rich symbolic discourse of the Scriptures to find direction for moral choice. There is a tension here between this vision and secular pluralistic culture which the encyclical never acknowledges.” Id. at 13. 57 See Leslie C. Griffin, Evangelium Vitae: Abortion, in CHOOSING LIFE, supra note 8, at 159-73. By relying primarily on a theological rationale rather than a natural law argument, Griffin reads Evangelium Vitae to be asking Catholic lawmakers and jurists “to inscribe their religious beliefs into the law of the United States.” While the church may be entitled to impose its theological doctrine on the faithful, Griffin concludes that “theological doctrine should not be imposed on non-Catholics by the state and politicians, not even by Catholic politicians.” Id. at 171. 58 See Hollenbach, supra note 55, at 42-43 (arguing that Evangelium Vitae fails to address the question of the relationship between law’s educative role in shaping culture and the right to freedom of conscience and fails to observe with sufficient care the distinction between the sphere of culture and the political/juridical sphere). “[T]he linkage between civil freedom and adherence to truth as a political/juridical question is quite different from the fulfillment of freedom through attainment of a full vision of the human good on the level of culture.” Id. at 43. 59 See Kaveny, The Limits of Ordinary Virtue, in CHOOSING LIFE, supra note 41, at 132-49. Kaveny summarizes her critique of the jurisprudence of Evangelium Vitae in this way: “The Pope’s emphasis on rights language and exceptionless moral norms has hindered his ability to address the fundamental jurisprudential question raised in implementing the culture of life within a legal system: in drafting law, how do we honor the moral claims made by the inviolability of the most vulnerable members of the human community, even while recognizing the moral limitations of those who must respect those claims in very difficult situations?” Id. at 141
Il. The Moral Aspirations of the Law Are Minimal: John Courtney Murray on the Relationship of law and morality Although answers to those questions are beyond the scope of my analysis in this presentation, I believe that the social theory of John Courtney Murray, S J. may provide some assistance to legislators, jurists, and legal scholars attempting to negotiate the complex and morally precarious balancing act" involved in trying to maintain a proper relationship between the moral law and the civil law. Murrays theory, rooted in the ancient and medieval natural law tradition, but with a decidedly American slant, calls us to keep in mind"the proper distinction between law and morality and between public and private morality. The care with which Murray develops these distinctions makes his theory a promising foundation from which to explore the questions raised by the Popes call to recover the basic elements of a vision of the relationship between civil law and moral law in a religiously pluralistic society A. The Experience of religious Pluralism and the American Consensus The American experience of religious pluralism provides one of the key starting points for Murray's theory. Murray defines pluralism as " the coexistence within the one political community of groups who hold divergent and incompatible views with regard to eligious questions- those ultimate questions that concern the nature and destiny of man within a universe that stands under the reign of God. 65 This sort of pluralism was"the native condition of American society, and it gave rise to a new project in social and or the public philosophy of America 65the American Proposition-the public consensus This public consensus responds to the special difficulties that religious pluralism presents to a people desiring to achieve a real civil society. As an intellectual experience, religious pluralism can produce confusion and distrust, because, if each particular eligious group speaks out of its own particularity, there is no common universe of discourse. Moreover, the different histories of the groups making up a religiously pluralistic society give rise to different styles of thought and interior life. Because pluralism is a reality that is not going to go away -"it is written into the script of history we need to find some way to contain the structure of conflict embedded in the confusion and distrust that can lie just beneath the surface of civic amity in a pluralistic 60 Id at 133 I Quinn, Whose Virtue? Which Morality? The Limits of Law as a Teacher of virtue, in CHOOSING LIFE, supra note 8, at 152 Id(emphasis in original) HN COURTNEY MURRAY. S.J. WE HOLD THESE TRUTHS: CATHOLIC REFLECTIONS ON THE AMERICAN PROPOSITION 9(1960)hereinafter MURRAY, WE HOLD THESE TRUTHSI Id at 10 id. at 8 See id at 27-3
11 II. The Moral Aspirations of the Law Are Minimal: John Courtney Murray on the Relationship of Law and Morality Although answers to those questions are beyond the scope of my analysis in this presentation, I believe that the social theory of John Courtney Murray, S.J. may provide some assistance to legislators, jurists, and legal scholars attempting to negotiate the “complex and morally precarious balancing act”60 involved in trying to maintain a proper relationship between the moral law and the civil law. Murray’s theory, “rooted in the ancient and medieval natural law tradition, but with a decidedly American slant,”61 calls us to keep in mind “the proper distinction between law and morality and between public and private morality.”62 The care with which Murray develops these distinctions makes his theory a promising foundation from which to explore the questions raised by the Pope’s call to recover the basic elements of a vision of the relationship between civil law and moral law in a religiously pluralistic society. A. The Experience of Religious Pluralism and the American Consensus The American experience of religious pluralism provides one of the key starting points for Murray’s theory. Murray defines pluralism as “the coexistence within the one political community of groups who hold divergent and incompatible views with regard to religious questions – those ultimate questions that concern the nature and destiny of man within a universe that stands under the reign of God.”63 This sort of pluralism was “the native condition of American society,”64 and it gave rise to a new project in social and political theory that Murray identifies as the American Proposition – the public consensus or the public philosophy of America.65 This public consensus responds to the special difficulties that religious pluralism presents to a people desiring to achieve a real civil society. As an intellectual experience, religious pluralism can produce confusion and distrust, because, if each particular religious group speaks out of its own particularity, there is no common universe of discourse. Moreover, the different histories of the groups making up a religiously pluralistic society give rise to different styles of thought and interior life. Because pluralism is a reality that is not going to go away – “it is written into the script of history” – we need to find some way to contain the structure of conflict embedded in the confusion and distrust that can lie just beneath the surface of civic amity in a pluralistic society.66 60 Id. at 133. 61 Quinn, Whose Virtue? Which Morality? The Limits of Law as a Teacher of Virtue, in CHOOSING LIFE, supra note 8, at 152. 62 Id. (emphasis in original). 63 JOHN COURTNEY MURRAY, S.J., WE HOLD THESE TRUTHS: CATHOLIC REFLECTIONS ON THE AMERICAN PROPOSITION 9 (1960) [hereinafter MURRAY, WE HOLD THESE TRUTHS]. 64 Id. at 10. 65 See id. at 8. 66 See id. at 27-35
Murray contends that the path to a "more civilized structure of dialogue"can be found, and that it is to be located in the American consensus. The consensus" is his way of talking about the"truths we hold in common"; truths rooted in "a natural law that makes known to all ofus the structure of the moral universe in such wise that all of us are bound to it by a common obedience. This consensus facilitates the civil conversation that the fact of religious pluralism can hinder The consensus or public philosophy furnishes the basis of communication between the government and the people and among the people themselves. It furnishes a common universe of discourse in which public issues can be intelligently stated and intelligently Moreover, this consensus is political and constitutional. It embraces a whole constellation of principles bearing upon the origin and nature of society, the function of the state as the legal order of society, and the scope and limitations of government. " Free government"-perhaps this typically American shorthand phrase sums up the consensus. A free people under a limited government puts the matter exactly. It is a phrase that would have satisfied the first whig, St. Thomas Aqul shore Leaving aside the question of whether or not St. Thomas would be comfortable sitting on the Whig side of the aisle, it is clear that Murray' s understanding of social and political theory is rooted in the Thomistic natural law tradition. He compiles, for example, a list of political principles that he contends emerge from natural law principles supported by the following set of ideas IT]he idea that government has a moral basis; that the universal moral law is the ation of society; that the legal order of society-that is, the state-is subject to judgment by a law that is not statistical but inherent in the nature of man; that the eternal reason of God is the ultimate origin of all law, that this nation in all its aspects-as a society, a state, an ordered and free relationship between governors and governed-is under God These are the ideas that constitute the consensus which first fashioned the american people into a body politic and determined the structure of its fundamental law, and, in Murrays view, these founding principles of the American Republic coincide with"the principles that are structural to the Western Christian political tradition 67 Id at 51(emphasis added) 63 MURRAY, WE HOLD THESE TRUTHS, supra note 63, at 8 69 Id at 43 no See infra notes 76&77 and accompanying text 7 MURRAY, WE HOLD THESE TRUTHS, supra note 63, at 53. Murray recognized that it was possible that"widespread dissent from these principles might develop, and noted that, "[if that evil day should come, the Catholic community would find itself as the guardian of the"ethical and political idiom shared by "the Fathers of the Church and the Fathers of the American Republic. Id 72 Id at 53-54
12 Murray contends that the path to a “more civilized structure of dialogue” can be found, and that it is to be located in the American consensus. The “consensus” is his way of talking about the “truths we hold in common”; truths rooted in “a natural law that makes known to all of us the structure of the moral universe in such wise that all of us are bound to it by a common obedience.”67 This consensus facilitates the civil conversation that the fact of religious pluralism can hinder: The consensus or public philosophy furnishes the basis of communication between the government and the people and among the people themselves. It furnishes a common universe of discourse in which public issues can be intelligently stated and intelligently argued. 68 Moreover, this consensus is political and constitutional. It embraces: a whole constellation of principles bearing upon the origin and nature of society, the function of the state as the legal order of society, and the scope and limitations of government. “Free government” – perhaps this typically American shorthand phrase sums up the consensus. “A free people under a limited government” puts the matter more exactly. It is a phrase that would have satisfied the first Whig, St. Thomas Aquinas.69 Leaving aside the question of whether or not St. Thomas would be comfortable sitting on the Whig side of the aisle, it is clear that Murray’s understanding of social and political theory is rooted in the Thomistic natural law tradition. He compiles, for example, a list of political principles that he contends emerge from natural law,70 principles supported by the following set of ideas: [T]he idea that government has a moral basis; that the universal moral law is the foundation of society; that the legal order of society – that is, the state – is subject to judgment by a law that is not statistical but inherent in the nature of man; that the eternal reason of God is the ultimate origin of all law; that this nation in all its aspects – as a society, a state, an ordered and free relationship between governors and governed – is under God. 71 These are the ideas that constitute the consensus which “first fashioned the American people into a body politic and determined the structure of its fundamental law,” and, in Murray’s view, these founding principles of the American Republic coincide with “the principles that are structural to the Western Christian political tradition.”72 67 Id. at 51 (emphasis added). 68 MURRAY, WE HOLD THESE TRUTHS, supra note 63, at 87. 69 Id. at 43. 70 See infra notes 76 & 77 and accompanying text. 71 MURRAY, WE HOLD THESE TRUTHS, supra note 63, at 53. Murray recognized that it was possible that “widespread dissent from these principles might develop”, and noted that, “[i]f that evil day should come,” the Catholic community would find itself as the guardian of the “ethical and political idiom” shared by “the Fathers of the Church and the Fathers of the American Republic.” Id. 72 Id. at 53-54