NORMAN, Oklahoma, FEB. 13, 2005 (Zenit.org).- For almost 100 years, secular schools of legal philosophy — especially legal realism and legal positivism — have been dominant within the legal academy and the judiciary.
These have led to laws and practices inimical to religious practice and traditional morals. But now, Michael Scaperlanda and a growing number of lawyers and law professors are developing a response to this phenomenon through something called Catholic legal theory.
Rooted in the dignity of the human person and respect for the common good, it is a reapplication of the Catholic intellectual tradition to a new context.
Scaperlanda holds the Edwards Family Chair in Law and is associate dean for research at the University of Oklahoma College of Law.
He is the co-editor of a forthcoming book exploring Catholic perspectives on areas of American law. His latest book, co-authored with his wife, María, is «The Journey: A Guide for the Modern Pilgrim» (Loyola).
Q: What is Catholic legal theory?
Scaperlanda: Catholic legal theory is an ongoing project of Catholic law professors, legal philosophers and others to participate in drawing on the Catholic intellectual tradition to build a culture that values the dignity of the human person, sees the community as indispensable for human flourishing, and seeks authentic freedom for the person within the community.
Catholic legal theory focuses, as you might imagine, on the ways that law and legal systems can aid or impede the building of a culture of life. At this level of abstraction, Catholic legal theory exists as a unified body.
When we move from the abstract to the concrete, I suspect that several Catholic legal theories will emerge as different scholars — with various ideologies and prudential judgments — attempt to work out the role of the state and its relation to the person in the formation and policing of the community.
Q: Is it different from natural law theory?
Scaperlanda: Catholic legal theory is broader than natural law theory.
Natural law theory uses philosophical reason, apart from Revelation, to attempt to arrive at the range of right answers about the good of the person in community.
Since, as St. Paul says in Romans 2:15, every person has the law written on their heart, a Catholic legal theorist can rely on the use of natural law to reason together with non-Christians on how society’s laws and legal systems ought to be structured for the good of the person. Catholic legal theory certainly uses natural law concepts as part of its project.
Catholic legal theory also uses divine Revelation — sometimes explicitly, sometimes not — as a critical component in the attempt to reflect on how the law and legal systems can serve humanity. I would argue that Paragraph 22 of «Gaudium et Spes» provides the key text: «The truth is that only in the mystery of the incarnate Word does the mystery of man take on light. … Christ … fully reveals man to man himself and makes his supreme calling clear.»
The Catholic legal theorist must grapple with the question of how the law and legal systems can best serve the development and flourishing of this creature — the human person — who is created in God’s image and revealed to us in the person of Christ.
Q: Isn’t it imprudent or impolite to make an appeal to divine Revelation when talking about law in a pluralistic society and to secular audiences?
Scaperlanda: The Catholic legal theorist should act prudently and with charity, but the exercise of these virtues does not require strict separation of God-talk from law-talk.
Robust pluralism requires allowing each person to engage the broader community in dialogue from the very core of her being. Only an impoverished and superficial pluralism would mandate that the religious person ignore the central part of her being as the price for full admission to the society.
Of course, merely providing proof texts from the Bible or the Church’s magisterium will be ineffective when talking with those who reject the authority of these texts.
Buried deep beneath the corrupting influence of original sin and further covered beneath a lifetime’s accumulation of sin and hurt, there is within each of us some glimmer of that original goodness. Since Catholicism proposes that Christ — the Way, the Truth and the Life — reveals the human person to himself, Catholic legal theory can gain currency among some non-Catholics and nonbelievers because it appeals to this original goodness by proposing a more human way of constructing law and legal theory.
Q: Why is there a need for Catholic legal theory?
Scaperlanda: Western society currently is engaged in a dangerous move, attempting to build a civilization with a thick conception of rights upon a foundation that insists on a very thin conception of the human person. This is a house built on sand if there ever was one, and the unstable structure is bound to collapse.
What do I mean by this? The founding generation in the United States recognized as self-evident the right of human persons to «life, liberty and the pursuit of happiness.» These rights were viewed as inalienable because they were endowed not by men, but by the Creator.
The founding generation also knew that this magnificent creature was easily susceptible to corruption and so they devised a system of separation of powers and checks and balances to minimize the potential for mischief among the governing class.
They had what I call a thick — or thicker — conception of the human person.
Western society today correctly sees that the human person is worthy of dignity and liberty. And, in positive ways, we enjoy a greater equality of rights and liberties today than when the United States was founded.
At the same time, our society is currently engaged in an experiment to see if we can maintain this thicker concept of liberty while denying its source and foundation. Marginalizing God and an understanding of the person as a creature created in God’s image, the current narrative privatizes conceptions of the human person and human goods. Instead of a public narrative about our origins, purposes and destiny, each individual becomes a sovereign self-creator.
This anthropology was articulated by the United States Supreme Court in the case of Planned Parenthood v. Casey in the infamous «sweet mystery of life» passage found in the opinion: «At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.»
Under this regime, it is a violation of the individual’s liberty for the community to draft laws reflecting its own thick conception of the human person.
The experiment cannot succeed. A house cannot stand without a foundation. Secularist liberal theory is attempting to build more rooms onto the house while simultaneously destroying its foundation.
This is not the case of shoring up a cracked foundation or moving the house to a new location with a different foundation. There is no pretense of a foundation at all, just a naive optimism that the house will not fall.
Catholic legal theory offers a powerful corrective lens through which to see the fatal defects in the secularist liberal project, while offering a reasonable alternative for the development of a secular legal system in a pluralistic society.
Q: Is Catholic legal theory a new phenomenon?
Scaperlanda: Yes and no.
No, in the sense that our Western legal tradition is built upon a Catholic synthesis of Athens and Jerusalem as developed in Catholic cultures throughout Europe over the last 2,000 years. Protestant reformers, Enlightenment thinkers, moderns and postmoderns were all working within this synthesis.
Yes, this is a new phenomenon in the sense that at this particular time in history and probably in reaction to
the radical secularization experiment described above, there seems to be a renaissance of Catholic legal thought.
Catholic legal theorists are currently working in several Catholic and secular institutions. On an institutional level, a few Catholic law schools in the United States are renewing their commitment to the Catholic intellectual tradition, and two new Catholic law schools have recently been created with this mission in mind.
Additionally, Villanova University recently inaugurated the Journal of Catholic Social Thought and last year a number of legal scholars started a Web log, «Mirror of Justice,» which is devoted to the development of Catholic legal theory.
Q: How can Catholic lawyers aid academics in helping foster Catholic legal thought within the profession and the legal system?
A: First, by doing the things that a Catholic lawyer would normally do. Prayerfully and faithfully putting Christ at the center of one’s life; excelling as a lawyer and viewing a legal career as a vocation given by God; living a life of integrity in the practice; befriending clients and challenging them to live lives of integrity.
Many clients want to do the right thing and just need a little nudge. Catholic lawyers should spend some time representing the poor and the marginalized. Solidarity with society’s «throwaways» can be transformative in unimagined ways.
Second, practicing lawyers can foster Catholic legal thought and the building of a culture of life by making themselves more fully aware of the profoundly destructive effects of the secularist anthropology that has thoroughly saturated our legal system.
Lawyers who are firmly rooted in a Catholic understanding of the human person, the community, and the good can work, often in small and seemingly insignificant and incremental ways, to put our civilization on a firmer foundation.
By way of example, the lawyers who attacked the injustice of apartheid in the United States didn’t make a frontal attack on segregation laws at first. By challenging wage disparities between black and white teachers and by challenging racial discrimination in graduate schools, these lawyers pushed the conversation slowly toward a new understanding of equality and an end to segregation.
Lawyers practicing in most any area of the law can make arguments designed to nudge the law and the legal system toward a more human foundation, at least so long as the arguments are consistent with the rightful goals of the client.
