The Limits of Law: Cathleen Kaveny on Law’s Virtues
In past posts on this blog I’ve presented Calvin’s argument that the government cannot simply punish all forms of immorality. The civil law cannot directly correspond to the moral law. The government’s toleration of a particular action does not imply its approval of that action. The classic example for this argument, which Calvin discusses in multiple places, is Jesus’ interpretation of the Jewish Torah’s law of divorce. The Torah permits divorce but as Jesus points out, “In the beginning it was not so.” Although divorce is unjust, the Law permitted it due to the hardness of men’s hearts, and regulated it to ensure that men treated their wives with at least a modicum of justice.
In her recent book Law’s Virtues, Cathleen Kaveny, a professor at Notre Dame Law School, tries to work out the implications of this principle as it is articulated by Thomas Aquinas. She argues that it is not sufficient to say that a good law must promote virtue in the persons whom it is seeking to regulate. We must also recognize that law itself must conform to certain virtues, or principles. She presents this point through a statement of Isidore of Seville, as quoted by Thomas Aquinas:
Law shall be virtuous, just, possible to nature, according to the custom of the country, suitable to place and time, necessary, useful; clearly expressed, lest by its obscurity it lead to misunderstanding; framed for no private benefit, but for the common good.
Kaveny emphasizes in particular the principles, which she thinks cultural warriors on both ends of the political spectrum often ignore, “possible to nature” and “according to the custom of the country.” Of course, she doesn’t think custom is the sole standard for civil law. As Thomas Aquinas argued quite clearly, civil law must be at least consistent with natural law or it becomes simply a perversion of law, even no law at all. Nevertheless, Kaveny thinks we need to take the customs and potentialities of a society much more seriously than we do.
She explains the limits of law in terms of four principles. First, enacting and enforcing laws costs money. Governments must always take into account whether the financial cost of a particular law outweighs its benefits to society.
Second, a law is unjust if its enforcement requires unjust action on the part of the government. As Aquinas says, government cannot prohibit and punish all evil, because to do so would require it to trample upon much that is good. In Kaveny’s words, “In some instances, the concrete steps a state would need to take to enforce a particular law are themselves morally repugnant.”
Third, we must remember that civil law has to be designed for ordinary persons (sinners), not for saints. It needs to be realistic or the impossibility of obeying it will lead to the collapse of the credibility of law itself.
Finally, Kaveny points out, we need to remember that criminal law is only “a small sliver of the legal framework necessary to promote the common good.” There are many more ways in which a state can express approval or disapproval of a particular action, in which it can encourage or discourage a certain practice, than through criminal law. And again, to stress the fundamental principle, permission does not imply sanction.
It’s a helpful argument, and overall, I really like Kaveny’s approach. But of course, the question arises, what about fundamental human rights, like the right to life? Can a government ever permit the unjust taking of innocent life based on the principles of law Kaveny articulates? Kaveny does an excellent job demonstrating that there are indeed circumstances in which a government has to tolerate certain immoral practices, including unjust killing, simply because it is impossible for the government to enforce a prohibition of those practices. Her main example here comes from the Wild West, in which no civil authority had a sufficient monopoly over the use of force to prevent settlers from having the right to protect themselves and their property, despite the violent abuses to which that right led.
I think Kaveny is correct on the basis of the above cited principles that sometimes it is wise and even virtuous for government to leave certain actions, including sometimes killing, unpunished, and that this does not implicate the government in sanctioning such murder. At the same time, I worry that Kaveny places too much emphasis on the authority of custom.
In the end, however, custom has the last word. ‘Custom has the force of a law, abolishes law, and is the interpreter of the law.’ Aquinas recognizes that even if the purpose of a law is sound, it cannot prevail if it ‘is not possible according to the custom of the country…. For it is not easy to set aside the custom of a whole people.’
It appears that Kaveny is talking about more here than simply the physical impossibility of a government enforcing the right to life, or even than the fact that in some cases a government would have to be unjustly invasive into people’s lives to enforce its prohibition of murder. She is talking about what is deemed acceptable according to the relative customs of a people. Does this include racially oppressive custom, the custom of economic exploitation, or permissive custom relative to sexuality and privacy? Perhaps I’m misunderstanding Kaveny here (I haven’t yet read the whole book). I hope so. But I’m not satisfied with her argument that criminal law should not always seek to secure fundamental rights.
Perhaps I’ve simply been too immersed in the lecture I gave yesterday on the German Protestant Church’s response to the Holocaust. But I’m inclined to think that when we are talking about rights as fundamental as the right to life, only the principles of possibility and justice should constrain a government in its responsibility to protect the weak. A government that tolerates the custom of a society when it permits the murder of those human beings it refuses to recognize as persons (whether on the basis of race, health, age, slave status, or birth) has forgotten that its fundamental obligation is not to the people but to God, from whom the right to life is derived.
Posted on March 22, 2013, in Law, Rights, Thomas Aquinas and tagged Calvin, Cathleen Kaveny, Isidore of Seville, Law's Virtues, Torah. Bookmark the permalink. Comments Off on The Limits of Law: Cathleen Kaveny on Law’s Virtues.