Seldom has this country needed moral discernment and legal wisdom as much as it does now. The courts, the rule of law, and standards of common decency find themselves under persistent assault from the executive branch of the federal government, often with the tacit or expressed approval of a large portion of the citizenry. Cathleen Kaveny’s collection of essays, Ethics at the Edges of Law, provides abundant practical wisdom about pressing issues by showing how the legal tradition can serve as a source of insight for Christian ethicists and for the morally serious general public as well. Those of us who seek inspiring examples of how careful and articulate thinking can advance the quality of public life should be grateful for books like Kaveny’s.
The overall argument of Ethics at the Edges of Law takes the form of demonstration through a series of dialogical engagements between Kaveny, representing the legal tradition, and mostly Christian ethicists, some of whom, like her own mentor John Noonan, were also jurists. Kaveny’s own work has for many years straddled the boundary between legal and ethical discourse, so she is an ideal interlocutor. And she has chosen very astute dialogue partners: one secular ethicist (Jeffrey Stout), one Eastern Orthodox (H. Tristram Engelhardt Jr.), three Protestants (Gene Outka, Stanley Hauerwas, and Paul Ramsey); and five Catholics (John T. Noonan Jr., Margaret Farley, Robert E. Rodes Jr., Germain Grisez, and Cardinal Walter Kasper). The book derives much of its intellectual energy from Kaveny’s ability to represent sympathetically the ideas of this wide variety of ethicists and to bring to bear upon them the resources of the American legal tradition in a way that is both critical and constructive. Taken together, these elaborate encounters show convincingly that the law, as Kaveny says, “can illuminate and extend the work of important religious moralists on a range of topics.”
Kaveny divides the nine essays into three sections of three essays each. Part I, which includes conversations with the works of Noonan, Hauerwas, and Stout, will interest mainly specialists in the fields of Christian ethics and jurisprudence. These three essays explore the many implications of the fact that both Christian moral reflection and American legal thought and practice constitute “traditions” in Alasdair MacIntyre’s sense of the term: they are socially embodied arguments extended over time. This similarity between Christian ethics and legal thought, once noticed and explicated, not only underscores the deeply historical dimension of both fields; it also provides the foundation for using legal methods of analysis to enrich Christian ethical ideas and methods. The best work within both traditions features a kind of dialectic between the irreducible particularities of given cases or situations and the general rules, themselves subject to development and change, which govern these seemingly disparate enterprises. Exclusive or excessive attention to one or the other of the two poles of this dialectic almost invariably results in bad law or faulty ethical judgment.
The three essays in Part II, engaging the work of Outka, Farley, and Ramsey, concern themselves in one way or another with the complicated relationship between love and justice. The first of the three, titled “Neighbor Love and Legal Precedent,” may be of most interest to the general reader: because of the salience of the issue that it examines, and because Kaveny is at her best here, showing how Christian ethics and legal thought can inform and strengthen each other. Since the essay is, in this sense, the most finely balanced of the nine and something of a model of interdisciplinary work, it is worth examining in some detail.
Kaveny’s examination of Outka’s account of Christian love and its relationship to justice proceeds through an extensive discussion of a textbook case in contract law, Watts v. Watts, decided by the Wisconsin Supreme Court in 1987. Sue Ann and James Watts had lived together as if they were married for more than a decade before their relationship broke down. They had two children together, filed joint income-tax returns, and shared some of the burdens of managing James’s landscape business. Upon dissolution of this “marriage-like” relationship, Sue Ann claimed that she deserved to be treated as though she were a divorced spouse, entitled to an equal part of the couple’s property under the Wisconsin Family Code. The trial court dismissed her claim on the grounds that she was never legally married and Wisconsin had, by statute, explicitly refused to sanction common-law marriages. The Supreme Court eventually ruled that Sue Ann had grounds for her claim of a breach of (implied) contract and remanded the case to the trial court, allowing it to go forward on grounds other than Wisconsin divorce law. In the end, Sue Ann recovered over $100,000—about a half a million less than she would have recovered with an even property division under Wisconsin divorce law.