Kevin Lee on the Church and Legal Culture
Buies Creek, North Carolina, 26 Aug. 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 ZENIT the contours of a distinctively Catholic understanding
of law, and how Catholics may productively contribute to the law's
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.
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
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
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?
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
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
God's gifts of grace
or example what St. Thomas called the infused virtues: faith, hope and
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.
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
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
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
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
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