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Kevin Lee on the Church and Legal Culture

Buies Creek, North Carolina, Aug. 27, 2007 (Zenit) - Much ink has been spilled over the supposed implications of having five Catholic justices sitting simultaneously on the U.S. Supreme Court.

But beyond speculation about what results this development may produce in specific cases such as abortion, there has been little discussion of what a uniquely Catholic understanding of American law actually means and how it may apply in the various substantive areas of law.

A new book, "Recovering Self-Evident Truths: Catholic Perspectives on American Law," (CUA Press), attempts to fill this void by explaining the theological and philosophical considerations that are foundational to a Catholic understanding of the law.

Kevin Lee, a professor of law at Campbell University, and author of the chapter titled "The Foundations of Catholic Legal Theory: A Primer," shared with us the contours of a distinctively Catholic understanding of law, and how Catholics may productively contribute to the law's development.

Q: What does it mean to offer a Catholic perspective on American law? Is it simply a critique of legal institutions like feminist legal theory, or does it offer something more?

Lee: A Catholic perspective must be concerned with what it means to be committed to Christ and to his Church.

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So a Catholic perspective on American law means considering what law looks like from within that commitment.

It involves a critique of institutions and theories, but it also requires critical reflection on the patterns of meaning that shape and are shaped by the law and the legal system.

Q: Why is it necessary to ground an understanding of a legal system in a distinctively Christian anthropology?

Lee: It is not "necessary," in the sense that it is possible to create a legal system rooted in some other anthropology.

Much of contemporary American legal theory, for example, can scarcely be considered compatible with a Christian anthropology.

But I think Catholic anthropology has a contribution to make. It offers a unique understanding of the irreducible dignity of the person and the giftedness of the community.

Catholic thought affirms that human beings are creatures with particular natures, capacities and limitations.

We all have dignity as bearers of the "imago Dei," but we are also sinful and prone to weaknesses. We form communities naturally, through small acts of love and kindness, but that does not mean that we are not capable of meanness and selfishness.

The Anglo-American legal system could simply abandon its Christian roots as archaic or nonsensical, but doing that would mean abandoning our tradition and denying that tradition has anything to offer.

Anyone who would advocate that position would bear a heavy burden of proof.

Q: A number of scholars are rediscovering the Catholic influence on the formation of Western legal systems -- an influence that lasted well into the last century. Does the Catholic conception of reciprocal rights and duties, so long a part of Anglo-American law, continue to govern our legal system, or have individualistic and modern liberal theories such as those of John Rawls transformed American law?

Lee: There is no doubt that the contemporary Anglo-American legal system has been massively influenced by modern liberal democratic theories.

But, I don't think that Catholic thought is in total opposition to either modernity or liberalism. It is much more complex than that.

Modern liberals, like Catholics, are concerned with rights and justice.

For example, Pope John Paul II's passion for individual freedom against totalitarian rule found support among liberals.

The critique is more nuanced than a simple rejection of modernity and liberalism.

Q: What role does natural law play in Catholic legal theory? Is the natural law the "self-evident truths" that the American founders asserted governed political life?

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Lee: Natural law is based on the belief that nature has rational purposes. It seeks to read moral precepts from such purposes as they are visible in nature.

Citing St. Paul's letter to the Romans, Christian natural law theorists have held that these precepts are based on self-evident foundational principles. But, it is a theory that is no longer widely accepted.

Modern science opposes the idea that there is any purpose to nature, moral or otherwise.

Contemporary secular philosophy largely denies moral truth altogether, and even contemporary Christian ethicists tend to look to virtue rather than law when speaking about morality.

Nonetheless, natural law theory still offers many insights and poses interesting questions.

For Christians, natural law theory has to be worked out in relation to the creation stories of Genesis. There are of course two antithetical natures for human beings in Genesis: one of eternal innocence and integrity, and the other of the fall and fragmentation.

The fall suggests a limit to our ability to gain moral knowledge from examining nature. It is possible to read the signs of nature correctly only if we understand the realities to which the signs refer.

But the fall impedes our capacity to know the ultimate reality because we no longer read the signs correctly. So a complete reading of the natural law will always elude our fallen, temporal selves.

Catholics typically have been more optimistic than Protestants in assessing the depth of our fallen nature. They have tended to argue that even the fall calls us to salvation because we can remember something of our pre-fallen state.

Protestants are more likely to see the fall as a complete forgetfulness of God that can only be healed by God's initiative. Nonetheless, Catholics and Protestants agree that we are deeply marked by the fall, and reason alone does not secure our ability to "read the signs" that tell of the purposes of nature.

That is why reason alone offers no sure guide to moral life. Benedict XVI has referred to the "pathologies of reason" to suggest this danger.

Christian moral theory must always be sensitive to excessive claims about the role that nature and natural reason can play in the moral life.

God's gifts of grace -- or example what St. Thomas called the infused virtues: faith, hope and charity -- are essential to the moral life, but they are typically discounted in natural law theories because they suggest limits to natural reason, and therefore moral knowledge is not self-evident.

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Q: G.K. Chesterton and many other commentators have said that the American Declaration of Independence is a very Catholic document. Why would they make such a claim when all but one of the signatories were Protestants?

Lee: I believe Chesterton was referring to the presumption of equal dignity that he saw in the declaration and in the ethos of the American democracy. Equal dignity is part and parcel of the distinctly Catholic reading of Genesis that I referred to earlier.

Because Catholics affirm that the dignity of human beings is intrinsic and therefore independent of variable traits, it is equal among all persons.

Catholics affirm that human beings have an intrinsic dignity that is not contingent or alienable, that all human beings share equal dignity in the "imago Dei." That's a distinctively Catholic view.

It is not found in Locke, for example, who related human dignity to the contingencies of consciousness. I think that's what Chesterton had in mind.

Q: You argue that Pope John Paul II left an important legacy for those seeking to explore what the Catholic intellectual tradition may offer modern legal systems. Can you elaborate?

Lee: John Paul II was one of the greatest Christian thinkers of the last century.

His thought offers a unique Catholic approach to modernity. His philosophical project sought to be a modern science of human experience.

But, his work is also fully theological. For him, the point of philosophy is to live with divine wisdom. He offers a rich theological anthropology for thinking through difficult questions about matters such as the nature of moral value, the experience of moral meaning, and the scope of human agency and responsibility.

His work strikes out against the modes of human self-creation that are common in scientific and technological thinking. His insights into moral experience, human dignity, freedom, philosophy and wisdom are all hallmarks of the depth and substance of his thought.

I think we are only beginning to understand his importance both as Pope and as scholar. His legacy will continue to grow for a long time to come.