|Michael Scaperlanda on a Person-Centered System
NORMAN, Oklahoma, 13 FEB. 2005 (ZENIT)
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
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, Marํa, is "The Journey: A Guide for the Modern Pilgrim"
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
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
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
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
The Catholic legal theorist must grapple with the question of how the
law and legal systems can best serve the development and flourishing of
the human person
who is created in God's image and revealed to us in the person of
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
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
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
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
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. ZE05021327