John Noonan on Theology, Morality, and Law

One of the beneficial side effects of the controversy surrounding Notre Dame Graduation --2009 is that people might get more interested in the work of John T. Noonan, Jr., a Catholic jurist and legal scholar whose contributions to both the bench and the academy are prodigious.If you want to get to know his thinking, I would start with two books, one focusing on theology, and one focusing on law. He delivered the Erasmus Lectures at Notre Dame several years ago, and they resulted in a book entittled A Church that Can and Cannot Change: The Development of Catholic Moral Teaching. The book makes use of his enormous topical studies of development in moral doctrine, from usury to contraception, to religious liberty.The second book, on the relationship of law and morality in the context of the common law tradition is entitled Persons and Masks of the Law - about the tension between the necessary impartiality of law as "no respecter of persons" and the danger that law can be used to mask the humanity of vulnerable people. A historian, Noonan makes his point through case studies of instances where great judges had used the law to create "masks."On the bench, Judge Noonan has dealt with many interesting issues, in which his strong pro-life views have sometimes intersected. Here is his response to the motion for him to recuse himself from sitting on an abortion protester case because he is a Catholic and a strong critic of Roe v. Wade. He was involved in the collateral appeal of Robert Alton Harris, the first person to be executed in California after a hiatus of many years. He wrote a very moving article about the case in the Stanford Law Review--it is riveting, I think.How to situate John Noonan's work? I myself think that his work provides the concrete evidence that demonstrates the truth of Alasaidr MacIntyre's tradition theory with respect to theology and to law. A tradition, according to MacIntyre, is a historically extended argument about the goods internal to that tradtion, the practices that sustain those goods, and the virtues necessary to appreciate them. Here's my own take on the "big picture" of Noonan's work. Reading MacIntyre and Noonan together is what shaped my thinking on tradition..

Cathleen Kaveny is the Darald and Juliet Libby Professor in the Theology Department and Law School at Boston College.

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