It is easy to assume that ethics and law stand in a dichotomy: ethics as theoretical and law as practical. Assuming a jurisprudential tradition authorized by and grounded in a state apparatus, law can be understood as engaging the world directly (even creating and structuring the world), while ethics engages the world indirectly through its role in shaping law. For legal and theological scholar Cathleen Kaveny, this framework is inadequate. In her latest book, Ethics at the Edges of Law: Christian Moralists and American Legal Thought, she argues that ethicists should not think of their discipline as a way of theorizing “the good” and law as a means of practically achieving it. Instead, she proposes that law can actually talk back to ethics. Law should be understood as a way of discerning the reality of the world and more appropriate ways of living in it. She describes ethics and law as analogous disciplines that, when done well, exhibit similar characteristics. To do either well requires a nuanced reading of history and tradition, with the understanding that past norms and practices can neither be ignored nor be directly transposed into present contexts. Both ethics and law do more than tell us how to live. Both legal and ethical arguments should be understood as “advocacy, not only of a particular conclusion or result but also of a certain way of viewing the world that supports and surrounds it” (19). Kaveny is not only interested in pointing out formal similarities but proposes that ethicists should consider law (and specifically Anglo-American traditions of jurisprudence) as a potential source of correction and critique for ethical debates.
In Part 1, “Narratives and Norms,” Kaveny argues that the tradition of common law is a useful source for reflection on practices of ethical reasoning and debate. This reflection is meant to uncover “ad hoc correlations between Christian ethics and secular morality” (xviii). Practitioners of the former, being the book’s target audience, are encouraged to consider the methodologies of the latter as at least potentially salutary. Part 2, “Love, Justice, and Law,” describes the entanglement of law and ethics and attempts to “broaden the horizon within which questions of law and policy are considered” (161). Part 3, “Legal Categories and Theological Problems,” provides concrete examples of how insights from jurisprudence can constructively intervene in theological and ethical debates to provide useful ways of thinking about moral problems.
Kaveny argues so convincingly for the commensurability of law and ethics that the reader may begin to question the nature of the distinction between these disciplines. In what sense is ethics “at the edges of law” rather than coextensive with it? Kaveny maintains at least a formal distinction between them, describing them as “mutually illuminating” conversation partners (90). The distinction seems natural enough when law is associated with the official political institutions tasked with regulating social practice. However, it seems at times that Kaveny is thinking about law instead as a more general practice of discernment and critique. When Kaveny claims that “concepts, approaches, and even substantive doctrines borrowed from secular law can assist the work of Christian ethicists in reflecting on the shape of a well lived life,” she does not seem to be implying that secular law can serve as a corrective for Christian ethics because its source holds greater authority, but that engagement with jurisprudence will refine the ethicist’s own practice (213).
If law is understood as a provisional practice of describing and critiquing the world, and of naming the ways that our forms of social life fall short of the ends of justice, then perhaps this artificial distinction collapses. Perhaps the modes of jurisprudential reasoning that Kaveny commends seem so appropriate to the discipline of ethics because they refer us to a commonality that has been disfigured by the association of the one with state power and the other with a kind of theorizing removed from the practice of living in the world. “Ethics” and “law” name processes that are concerned not only with rules for how to live in the world but with descriptions of the world that promote particular forms of social life. Ethics is at the edges of law insofar as law is considered the domain of judges, police, and legislators. If we take seriously Kaveny's argument that legal reasoning should not be limited to legal institutions, then we might go further and interrogate the relationship between ethics and law at the edges of the state. Doing so might help us also consider the ways that the distinction maintained here between “ethics” and “law” is related to the secularist distinction between “religion” and “politics.” What insights might be gained from thinking about the modes of legal reasoning in the Islamic tradition of shari’a or the Jewish tradition of halakhah and their complex relationship to state power? Ethics at the Edges of Law is a sophisticated plea for ethicists to take law seriously in their pursuit of justice, with implications that extend far beyond simple adjustments to method or approach.
Nathaniel Grimes is a doctoral student in Christian Ethics in the Department of Theology and Religious Studies at Villanova University.
Nathaniel Grimes
Date Of Review:
September 22, 2018
