Inaugural Lecture Series - Spring 2005
“The University and the Human in a Pluralistic Age”
Celebrating the Inauguration of the Rev. Kevin Wm. Wildes, S.J., as 16th president of Loyola University New Orleans, October 15, 2004
Autonomy, Solidarity, and Law’s Pedagogy1
M. Cathleen Kaveny, J.D.
Associate Professor of Law, University of Notre Dame
April 13, 2005.
Professor M. Cathleen
Kaveny joined the Notre
Dame Law School faculty as
an associate professor in 1995
and was named the John P.
Murphy Foundation Professor
of Law in 2001. Kaveny
teaches contract law to first-year
law students. She also
teaches a number of seminars
which explore the
relationship between
theology, philosophy, and law.
Kaveny has published more
than 40 articles and essays in
journals and books
specializing in law, ethics, and medical ethics. She also
serves on the advisory board
of the university’s Erasmus
Institute, created in 1997 to
focus on reinvigorating the
role of religiously-based
intellectual traditions in contemporary scholarship.
This lecture will explore the ways in which law can be understood as a deeply humanistic discipline. Citing examples from the Americans with Disabilities Act, in conjunction with St. Thomas Aquinas’ understanding of the pedagogical function of law, this lecture will illustrate the manner in which positive law can inculcate a normative view of human society, human flourishing, and the nature of our obligations to one another. This normative view can draw upon, and contribute to, discussions in philosophy, sociology, psychology, and theology.
A person with an obvious disability making his way along Chicago’s Michigan Avenue in December 1970 would not simply have been enjoying the spectacle of one of the nation’s busiest commercial venues at the height of the Christmas shopping season. Whether he knew it or not, he also would have been engaged in an act of civil disobedience. On the books of the Chicago Municipal Code at that time was an ordinance colloquially known as “The Ugly Law.” It provided that:
“No person who is diseased, maimed, mutilated or in any way deformed so as to be an unsightly or disgusting object or improper person to be allowed in or on the public ways or other public places in this city, or shall therein or thereon expose himself to public view, under a penalty of not less than one dollar nor more than fifty dollars for each offense.” 2
Similar laws could be found on the books in cities such as Columbus, Ohio,3 and Omaha, Nebraska.4 They were not repealed until around 1973 or 1974. 5
Most of us today recoil at the view of persons with disabilities expressed in the Ugly Law; to contemporary ears, its name is an accurate, if ironic, reflection of the moral quality of the sentiments that it expresses. But what, precisely, is objectionable about it? In my view, the salient objections can be grouped in three categories. First, the Ugly Law places significant practical barriers in the way of persons with disabilities. It prevents them from going about their business, it dissuades them from living their day-to-day lives. If they decide to attempt to do so nonetheless, they risk being arrested, penalized, and publicly shamed for engaging in activities that most of us take for granted, such as going shopping, visiting friends, and attending church.
A second problem with the Ugly Law has to do with the normative presuppositions of the message it sends. More specifically, its concrete prohibitions and penalties are infused with a morally freighted vision of how human beings should live their lives together. The Ugly Law adopts a particular view of the value of an individual, conveying the message that it is important to be “normal”—to be aesthetically pleasing (or at least not disgusting) to others. In addition, it also communicates a clear vision of the respective obligations of different groups of persons within the broader society. Those with disabilities have an obligation to stay out of the way—and out of the line of sight—of those who are “normal.” In contrast, “normal” persons have very few—if any—challenged individuals who come across their paths. In the vision of reality inculcated by the Ugly Law, chance and accidents can create a moral and social chasm between people. The circumstances of one’s conception or birth (e.g. I was born with Down’s Syndrome, you were not) or of one’s life (e.g., the drunken driver hit her, but missed him) can determine whether one is deemed worthy to participate in the public life of the community.
Third, the broad ramifications of the message conveyed by the Ugly Law are also very troubling. Assuming the citizens of Chicago internalize the normative vision of the worth of persons with disabilities presupposed by the law, how will they act in contexts not explicitly governed by it? For example, how will so-called “ normal” people relate to persons with disabilities in schools, in restaurants, in hospitals? How will persons with disabilities view themselves? If they do not have the right to walk the city streets in peace, how will they ever be able to see themselves as anything less than second-class citizens in other areas of their life? Will not they be forced to confront pressures both internal and external, sometimes subtle, sometimes overt, to make themselves invisible, to refrain from making any claims on the attention or concern of “normal” members of the community?
Thus the problem with the Ugly Law extends far beyond the fact that it tightly restricts the ability of persons with disabilities to go about their day-to-day lives; it also encompasses the broader messages that it conveys about the relative worth of persons with disabilities. The effects of these messages are not limited to the streets of Chicago, but can influence interactions between people in many other contexts. Consequently, any adequate moral analysis of the Ugly Law Moral must move beyond its concrete requirements and prohibitions to consider these broader ramifications.
More generally, I think, the example of the Ugly Law suggests that a crucial challenge facing those of us concerned about the relationship between law and morality is to find a way to grapple with the issue of law’s normative vision in a straightforward and sophisticated manner. Always and everywhere, law teaches a moral lesson—it imbues a vision of how the members of a particular society should live their lives together. We need to find a way, first, to acknowledge the fact that law teaches, and second, to take responsibility for what it teaches. Needless to say, in highly complex and pluralistic societies, deciding what values and virtues various bodies of law should embody and foster is not an easy task. I do not claim that it is. But the task of forging political and civic communities in the contemporary context will not be any easier if we deliberately leave these questions unarticulated and unaddressed.
In the remainder of this essay, I will attempt to begin identifying and grappling with the issue of how to take responsibility for law’s pedagogical function in the European and American contexts, marked as they are by increased pluralism, complexity, and a commitment to the value of individual liberty. First, I will critically examine the components of a metaphor of law that has become highly influential among Anglo-American legal theorists, which I will call “Law as Police Officer.” This metaphor is a shorthand way of describing a strand of liberal legal theory6 that has its roots in the thought of John Stuart Mill.7 Advocates of this approach contend that the law (particularly the criminal law) should only be used to prohibit actions that wrongfully harm other persons; in their view, it is morally inappropriate to use the tools of the criminal law to enforce community values or prohibit so-called “harmless” immoralities. Taking as my conversation partner the writings of Joel Feinberg,8 whom I believe to be the most rigorous and interesting recent representative of this school of thought, I will argue that the Law as Police Officer metaphor is seriously inadequate.
Second, I will discuss the implications of a contrasting metaphor that is rooted in St. Thomas Aquinas’s Treatise on Law: Law as Teacher, particularly law as teacher of virtue.9 In proposing such a vision of law, Thomas is no ivory-tower idealist. His theory is quite capable of accommodating the fact that legal systems are not designed for communities of saints—or even for communities whose members are in agreement regarding the nature, distinguishing features, or the existence of sainthood. At the same time, however, Thomas maintains that one of the functions of the positive law is to facilitate the moral growth of those subjected to its strictures. From my perspective, it is the striking combination of moral realism and moral aspiration that is the most compelling feature of Aquinas’s legal theory, and which makes it a useful source of insight in addressing the contemporary situation. In addition, it is precisely this combination that allows us to highlight significant points of contact between Aquinas’s work and that of contemporary legal theorists, even liberal legal theorists. More specifically, I will suggest that bringing Aquinas’s legal theory into critical conversation with the work of the contemporary Oxford legal theorist Joseph Raz, particularly his book The Morality of Freedom,10 yields a number of fruitful avenues for considering how law can function as a moral teacher even in societies that value individual autonomy.
Law as Police Officer
In my view, “Law as Police Officer” is the metaphor that best evokes the basic approach of much (but not all) contemporary liberal legal theory. In essence, this approach to the relationship of law and morality suggests that the role of the law as a teacher of morality is extremely limited, and essentially negative in its operation. Properly understood, law should function like a police officer guarding the boundaries of a piece of property. Its purpose is to keep people from acting in ways that wrongfully harm others, not to inculcate a positive vision of the way that they should live and flourish together. According to liberal legal theorists of this sort, it would be no more appropriate for the positive law to tell a member of the community which view of flourishing to adopt than it would be for the security guard protecting the boundaries of his neighbor’s property to tell him what type of grass to grow on his lawn.
The key theoretical tool used by advocates of the Law as Police Officer approach is known as the “harm principle;” its basic claim is that the coercive function of the law, particularly the criminal law, should almost never be invoked to prohibit behavior that does not constitute a wrongful harm to someone else. According to Feinberg, a wrongful harm to another has two key characteristics: 1) it is a setback to that person’s interests that is at the same time 2) a violation of that person’s rights.11 The way that he develops each of these characteristics merits both attention and criticism.
As his choice of the word “interests” suggests, Feinberg adopts a subjectivist account of value. On his view, human beings do not seek to promote or protect goods, goals, or states of affairs because they are valuable; rather, these goods, goals, and states of affairs are valuable because they are sought after and valued by human beings. In other words, they are valuable because they have become the objects of a particular human being’s interest.12 Because human beings adopt a wide variety of diverse goals as their ultimate interests, it is impossible for the legal system to commit itself to protecting the ultimate interests of each and every person within the society. Instead, the legal system must focus on safeguarding what Feinberg calls “welfare interests;” the various aspects of life that people need to have in place as necessary means for their attempts to realize their own particular ultimate interests. Welfare interests are generally the same for the vast majority of persons; they include a predictable span of life, health, absence of pain and disfigurement, financial security, and freedom.13
To trigger the possibility of a legal prohibition, however, it is not sufficient that an action be harmful to a person’s interests; it also must be a violation of his rights. In other words, the law should concern itself only with setback to a person’s interest that are also wrongful.14 People frequently suffer from a variety of setbacks to their interest that are not wrongful. For example, if I harm you in self defense, your interest in a predictable span of healthy life may be set back substantially; nonetheless, you have not been wronged. If one professional tennis player beats another in a tournament, the loser’s interest in victory is obviously compromised. Nonetheless, she is not wronged, provided that the contest was fair.
Virtually no legal theorist of any theoretical stripe would argue that either the harm suffered by an unjust aggressor or by the loser in a fair contest constituted a wrong to them. For Feinberg, however, there is a crucial way in which actions that are both arguably morally wrong in themselves and harmful to another person can have their character as a legal wrong erased from them: if the victim consents to the behavior that caused the harm. The “volenti” maxim says that if an individual is harmed as a consequence of an action to which he consented (his own action or the action of another), it is not a violation of his rights. It may be morally wrong, for example, for a sadist to beat a masochist; if, however, the masochist consents, he is not “wronged” in a way that justifies criminal punishment of the sadist’s action.15
What are the practical implications of the “Law as Police Officer” approach? First and most importantly, it entails that in the vast majority of cases, activities that do not count as “wrongful harms” should not be prohibited, particularly by the criminal law. Why? For a conjunction of two reasons. To all liberal legal theorists, liberty has a fundamental value that overrides nearly every other value. Moreover, to liberal legal theorists such as Feinberg, the coercive power of the government, particularly when exercised through the arm of the criminal justice system, constitutes the most severe threat to individual liberty. Feinberg writes: “The threat of legal punishment enforces public opinion by putting the nonconformist in a terror of apprehension, rendering his privacy precarious, and his prospects in life uncertain. The punishments themselves brand him with society’s most powerful stigma and undermine his life projects, in career or family, disastrously.”16 Consequently, the legitimate targets of the awful power of the criminal law must be limited to actions that wrongfully harm others.
On this basis, Feinberg argues that there are a number of categories of behavior that do not justify criminal prohibition. As I noted above, these include the category of harmful behavior to which the person harmed has consented.17 Also included are a number of other activities, such as arguably immoral behavior that is not harmful to another person. For Feinberg, this category includes any and all consensual sexual behavior. Feinberg draws upon his subjectivist conception of value to combat the obvious objection that moral corruption—sexual or otherwise—constitutes a real harm to the person corrupted. In his view, corruption is only a harm to those who have developed a prior ultimate interest in being a good person. Moreover, if such persons engage in corrupting behavior, the ensuing harm to their character does not count as wrongful because they consented to the actions that produced it.
Feinberg also argues that it is also wrong criminally to prohibit what he calls “free-floating evils”—moral evils that do not constitute “a personal harm, offense, or exploitative injustice” to an identifiable person or group of persons. The category of free-floating evils includes the violation of social and religious taboos, evil and impure thoughts, wanton squishing of bugs or other small wiggling creatures in the wild, and the extinction of a species.18 Feinberg also identifies a number of free-floating evils connected with social change, such as the extinction of a national or cultural group, drastic changes in moral or aesthetic climate, and general environmental ugliness or drabness.19
As the subtitle of his four-volume series indicates, Feinberg’s project is explicitly concerned only with “the moral limits of the criminal law.” He does not explicitly treat other branches of the legal system, such as contract law, administrative law, corporate law, or the law of property. Nonetheless, the normative import of his work seeps beyond the specific realm of the criminal law to affect the action-guiding function of all spheres of the legal system. More specifically, the fundamental presuppositions of his theory suggest that the strictures developed by all areas of the law should leave the greatest possible scope for individual choice. Moreover, the subjectivist account of value Feinberg adopts also implies that in all of its branches, the law should avoid adopting or imposing any theory of value to the greatest extent possible. Feinberg’s theory gives the state has no obvious theoretical justification for using less extreme means of coercion than the criminal law to deter anything other than wrongful harms.
The view of law adopted by the Law as Police Officer Approach is compelling in a number of respects: it recognizes that the tools of the government can be a dangerous and destructive force if they are used incorrectly. It also places at the center of our attention the disparity in power between the individual and the government. Finally, it honors the fact that many socially beneficial insights began as highly controversial propositions advanced by individuals or small groups under conditions which led them to fear for their personal safety and freedom at the hands of a more conservative majority. Nonetheless, I also believe that Feinberg’s approach to accommodating these aspects of human social interaction also has substantial costs associated with it. More specifically, I think that his approach can be critiqued both with respect to its underlying political values and with regard to the coherence and power of the theory of law that he develops around those values.
A main difficulty with Feinberg’s approach stems not so much from the fact that he values human freedom, but from the impoverished manner in which he defines it. Feinberg depicts freedom as if it had three primary characteristics: First, freedom is primarily negative in nature; an agent can be called free if no other agent, particularly the state, impedes him from acting in the manner in which he wishes. Second, freedom is almost exclusively oriented toward the future. According to Feinberg, it is more important for the state to insure that one agent is not prevented from doing what he wants to do in order to bring into existence the future he has imagined for himself than for it to protect the fruits of another agent’s past exercise of freedom. Third, as Feinberg understands it, freedom is primarily individualistic. The entities around whom freedom revolves are individuals; broader groups, such as families, churches, and nations are largely presented as threats to freedom rather than constitutive safeguards and expressions of it.
In my view, each of these three features of Feinberg’s view of freedom merits criticism, not from a perspective opposed to freedom, but one committed to a more adequate understanding of its nature. The necessary critique is an internal rather than an external one; it can and has been made by legal theorists who share Feinberg’s commitment to the preeminence of the value of liberty, such as Joseph Raz. First, Raz points out, the ultimate point of negative freedom is positive freedom; the agent’s freedom from the restrictions and requirements of others only bears fruit when the agent grabs hold of that opportunity in a positive way, in order to help shape his own identity and place his imprint upon the circumstances under which he will live. In Raz’s terms, the point of negative freedom is positively to allow an agent to become a “part author” of his own life.20
Raz’s argument also suggests that it is possible—indeed preferable—to justify the protection of liberty without adopting Feinberg’s subjectivist account of value or interest. In other words, one does not have to ground the protection of a wide range of freedom in Feinberg’s twin claims that 1) there is no value, nor any way of life that can be said to have value, apart from the fact that someone exists who values it; and 2) any activity, item, or way of life is to be treated as valuable if someone values it. Instead of arguing that the reason for protecting freedom stems from a dearth of objective value, Raz contends that the reason we need to protect human freedom stems from a surfeit of it. More specifically, Raz contends that the rationale for protecting freedom stems from the recognition that there are a number of mutually incompatible but morally worthwhile ways of living one’s life, which deserve protection precisely because they are morally worthwhile.21
Second, in my view, Feinberg is wrong in suggesting that autonomy is relentlessly forward-looking; in fact, autonomy or freedom also includes a backward-looking component. People exercise their autonomy in part by working together to found institutions, to create communities, and to implement their vision of the good life together. Consequently, these collective artifacts cannot be construed solely as a threat to autonomy in the manner that Feinberg frequently seems to suggest.22 They also constitute its fruits and merit protection as such. I do not mean to suggest, of course, that there can never be any tension between freedom and the accumulated weight of custom, tradition, and institutional values. My only point is that to present their relationship as an absolute dichotomy is to go too far. Both those who defend the institutions to which they have dedicated their lives and those who wish to modify or even demolish the same institutions in order to create room for new projects can justify their claims by invoking the importance of autonomy. The former focus on its backward-looking elements, while the latter emphasize the aspects of autonomy that are forward-looking.
A third problem with Feinberg’s approach is that it fails to acknowledge a social component to both the exercise and protection of autonomy, even with respect to its forward-looking component. More specifically, it is a mistake to construe autonomy only in a way that places it in opposition to tradition, community, and culture. Most obviously, it is impossible to preserve a political community committed to autonomy unless that commitment is collectively passed down from generation to generation. Doing so requires constant efforts to articulate the moral value of autonomy in new contexts, and to communicate the rationale for giving it political protection even in situations where restrictions on freedom seem to be the most practical and efficient way of organizing civil life.23
In addition, the exercise of freedom on the part of the individual cannot exist without significant social commitment. Raz argues that individual autonomy has three fundamental requirements: 1) the raw mental capacity to make and carry out choices; 2) freedom from attempts at manipulation as well as coercion on the part of other people; and 3) a range of morally worthwhile choices from which to choose.24 Feinberg’s theory can account for some aspects of the second requirement; he cannot account for the remainder of Raz’s requirements for enabling individuals to exercise autonomy. Most basically, a society committed to raising children to become autonomous members of community will have to ensure that they are raised in a stable and nurturing environment, so that they are physically and psychologically equipped to assume responsibility for their adult lives. It will need to provide children with high quality education that not only refrains from manipulating them, but also gives them the tools to recognize manipulation on the part of others.
In addition, a society that values autonomy must foster the development of a sufficient range of morally worthwhile options from which persons may choose as the matter from which they shape their own identities. The vast majority of options possessed of sufficient attractiveness to shape a whole life require whole groups to develop and maintain them; they cannot be chosen by isolated individuals. For example, there is no law that explicitly prohibits a young boy from aspiring to the profession of “medieval knight.”25 Nonetheless, that option is not available to him, because the broader social context that undergirded that role, as well as the particular understanding of honor, virtue, and loyalty that animate it, have long faded into the past. A young boy can wish he were a medieval knight, or even go to great lengths in pretending to be one. He cannot, however, actually become the genuine article. Many of the professions which shape an individual’s identity in the contemporary world also require elaborate social structures to maintain them. One cannot become an auto mechanic, a radiation oncologist, an astronaut, a race car driver, or a nuclear power plant operation without the existence of a particular range of socially supported practices, institutions, and values. One cannot even become a “wife” or a “husband” without the existence of the social institution of marriage.
Raz’s three conditions for the exercise of autonomy point beyond the rather stark image of the individual constructing his own identity in isolation to a richer vision of the person situated in and interacting with a community in order to develop an identity that draws equally upon his unique talents and motivations and the opportunities provided by the broader society. They press us to move beyond an artificial opposition between individual self-fulfillment and communal claims and commitments. Alternatively, shifting to the language of Catholic social teaching, they press us on to move from individualism to solidarity.
In my view, the virtue of solidarity as understood in contemporary Catholic thought has three fundamental components, which correspond to and supplement Raz’s conditions for true human autonomy in ways that are very illuminating. First, solidarity requires us to meet the basic needs of each person, not only as an abstract chooser, but as a being who is an integrated unity of body and soul. Second, solidarity requires us to recognize the nature of each person as essentially social, drawing them out of isolation and into the community in a healthy way and preparing them to function within it in a way that leads to the flourishing of both the individual and the community. Third, solidarity requires us to provide vehicles through which each person can contribute to the community through the expression and development of his own talents and interests. Needless to say, this third requirement must not be interpreted in a way that reduces the individual to a cog in the machine dominated by the collective; “contribution to the community” must be understood in a way that takes full account of the often painful need to critique and reform the structures and norms of a community for its ultimate benefit and the benefit of those living within it. Nonetheless, it presses us to recognize that human flourishing generally requires the development of some ultimately positive, even if at times difficult and complex, relationship between individuals and the broader communities to which they belong.
Law as Moral Teacher
Is there a way of understanding the nature and function of positive law that can accommodate the complicated relationship between individual freedom and communal values and opportunities in a way better than Feinberg’s approach of “Law as Police Officer”? I believe that there is a better model, which is encapsulated in the phrase “Law as Moral Teacher.” This model recognizes that the law does far more than set up “fences” that protect each citizen’s freedom from invasion by another. Instead, it recognizes, emphasizes, and takes responsibility for the fact that positive law communicates something to its subjects about the ways in which they should and should not go about living their lives. I believe that the jurisprudential challenge currently facing us is to take responsibility for the law’s pedagogical function in contemporary societies in a realistic and nuanced way. Always and inevitably, the law teaches. What should be its lessons?
In my view, the legal theory articulated by St. Thomas Aquinas in the Summa Theologica provides us with significant assistance in addressing this question. Aquinas describes the purpose of positive law in the following manner:
“It is evident that the proper effect of law is to lead its subjects to their proper virtue, and since virtue is that which makes its subject good it follows that the proper effect of law is to make those to whom it is given, good, either simply or in some particular respect.” 26
Thomas goes on to explain that the purpose of human law is to make its subjects good with respect to the values of a particular government, a particular political community.27
For example, he would argue that the legals systems of both Nazi Germany and contemporary Belgium aim to make their subjects “good” in a formal sense, although the material content of “goodness” in the two regimes varies substantially. Consequently, the Law as Teacher approach recognizes the intimate connection between legal theory and political theory. In many cases, the most urgent object of critique and reform is not the existence or lack of existence of particular laws, but the fundamental values of the political system enacting those laws to further its own vision of the polis and the good citizen who lives within it.
The fact that Thomas understands positive law as a teacher, and more specifically, as a teacher of virtue, does not mean that he perceives the coercive and regulatory aspects of the political community to operate in the same manner as a Sunday morning catechism class in a nice suburban community, designed to produce pious and well-behaved citizens. Thomas is far too realistic about the unwieldiness of human nature, as well as the inevitable clumsiness of the tools provided by positive law, to make such a mistake. He fully recognizes that there must be both practical and moral limitations on the power of positive law.
Both sorts of limitations are evident in a key passage Thomas quotes from Isidore of Seville, which articulates the range of qualities that a good law must demonstrate:
“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.” 28
The requirement that the law be “according to the custom of the country,” for example, indicates that governmental officials should not use the law as a tool to implement their own vision of the perfect community, without any regard for the particular practices to which their subjects have become accustomed in living their lives. The stricture that law be “suitable to place and time” expresses sensitivity to the fact that, in some cases, different rules are appropriate to guide behavior in different circumstances. It also allows that different modes of enforcing the same rule may be called for in different times and places. The mandates that the law be “necessary” and “useful” focus our attention on both the practical nature of law and the costs of enacting and enforcing it. Law is not merely the window-dressing of power; it should not be enacted merely to serve as a verbal monument to the influence of the lawgiver. At best, an unnecessary or useless law will be left unenforced, thereby eroding the general respect for law present within the community. At worst, it will be enforced—creating resentment that the limited resources of the legal system are used in such a senseless manner. Finally, the demand that law be clearly expressed reminds lawmakers that the primary purpose is to guide the action of its subjects in a way that furthers the common good; a law whose requirements are delineated only in a vague manner may encourage persons to engage in actions that impede rather than promote the worthy objectives of the lawgiver.
In addition to the practical limitations, Isidore’s list of criteria also points to a number of important moral limitations with which sound law must comply. First, in saying that law must be “possible to nature,” Isidore hints at a requirement that Thomas articulates in a far more explicit manner. The strictures of the criminal law should be designed for ordinary persons, not for saints. The law is a moral teacher, but its course is not advanced; it offers only the most elementary lessons in the ways of virtue. Aquinas states, for example, that a primary purpose of the criminal law is to provide those who are too obstinate to be trained by friends and family with a forceful introduction to the rudiments of virtue, which largely consist in restraining from the major vices.29
In my view, a rich, Thomistic vision of Law as Teacher can account for many of the most persuasive aspects of Feinberg’s vision, particularly his insight that the tools of the criminal law must be used sparingly. In fact, Aquinas and Feinberg would likely be in agreement that it would be a mistake to invoke the strictures of the criminal law against most of the items on Feinberg’s list of “freefloating evils.” However, in Aquinas’s framework, it would be a mistake not because, or not only because, the actions in question are not wrongful harms, but because it would violate Isidore’s criteria for good law to do so—whether or not they are wrongful harms. With respect to some of Feinberg’s examples, it is hard to determine how the government would detect and prosecute such an action, such as the wanton squishing of a small bug in the wild. In other cases, it is not clear why it would be justifiable to devote the scarce resources of the criminal justice system to defining and prosecuting such an offense such as an instance of general environmental ugliness or drabness.
More importantly, the pedagogical concern of Law as Teacher of Virtue presses us to ask what enforcement of certain prohibitions would do not only to the alleged perpetrator, but also to the police officers and governmental attorneys charged with detecting and prosecuting the actions in question. For example, Feinberg worries about the psychological and emotional damage done to those charged with having had “impure thoughts,” or those who are arrested for performing certain consensual acts in private.30 The Law as Teacher approach would share those worries. It would also, however, have room to express concern about how the actual mechanics of detecting, arresting, and prosecuting such behavior would affect the character of those charged with doing so on behalf of the state. What kind of habits, what kind of relationship with other people, would they develop in the course of doing their jobs?
Those who advocate a Thomistic view of Law as Teacher must, of course, be prepared to articulate and defend the range of virtues they believe the law should teach. According to Thomas, the major concern of the positive law must be ius, or the right. Its focus is not the inner disposition of the acting agents, but instead, the external situation of right relations that ideally would be produced when such agents act virtuously. Consequently, the law targets its strictures on actions that disturb the appropriate situation of right relations between various members of society, not on actions primarily affecting the character of the agent.31
At the same time, on Thomas’s account, the law has a gravitational thrust that extends beyond the basic requirements of right relation or ius. Although the law’s coercive energies are generally triggered only by violations of justice, its pedagogical message must emphasize the importance of the other cardinal virtues as well, because people who lack those virtues even in the most rudimentary form are the most likely to violate the norms of justice. For example, in the first instance, excessively daring people lack the virtue of fortitude. While such a deficiency is bad for their character, it does not in itself fall within the sphere of the positive law. However, excessively daring persons are often prone to taking disproportionate risks, thereby unjustly inflicting harm upon others.32 In short, while the strictures of law must be focused on violations of justice, the moral message animating and supporting them must encompass and promote the three other cardinal virtues as well. The web of right relationships mandated by ius cannot be promoted and protected by a citizenry which lack prudence, fortitude, and continence.33
The cardinal virtues, of course, mark the character of a virtuous person who lives in any time and place, although the precise shape they take (as well the particular vices opposed to them) can vary substantially across eras and cultures. In my view, however, in countries such as Belgium and the United States, the law also needs to teach and support two virtues particularly appropriate to our time and place. These virtues are autonomy (understood in Joseph Raz’s terms) and solidarity (understood in the terms of Catholic social teaching). Without denying the existence of significant tensions between the two virtues, bringing Catholic social thought into conversation with the work of perfectionist liberal legal theorists such as Joseph Raz may highlight ways in which they are mutually necessary. I think that Pope John Paul II hints at this mutual necessity in the following passage from Sollicitudo Rei Socialis:
“[Solidarity] is not a feeling of vague compassion or
shallow distress at the misfortunes of so many people, both
near and far. On the contrary, it is a firm and persevering
determination to commit oneself to the common good; that is
to say to the good of all and of each individual, because we
are all really responsible for all.”34
The Mutuality of Autonomy and Solidarity:
The Americans With Disabilities Act
In my view, the conception of Law as Teacher, rather than that of Law as Police Officer, explains some of the most important pieces of legislation enacted in the United States in the second half of the 20th century, including the Civil Rights Act,35 the Family and Medical Leave Act,36 and the Americans with Disabilities Act.37
In my view, all three pieces of legislation share four important characteristics. First, they all adopt an attitude toward the function of law that is both normative and holistic; each gestures toward a vision of how the citizens of the United States should live their lives in common. None of them narrowly targets a disjointed set of wrongful harms in the manner contemplated by the Law as Police Officer model. Second, they do not attempt to penalize the subjects of the law for failing to exhibit the full range of relevant virtues. As Aquinas recommends, they generally limit requirements and proscriptions to specified external actions; they do not extend their coercive force to reach the full range of internal acts that a fully virtuous person would manifest. Third, at the same time, each piece of legislation signals the hope that the subjects of the law will move beyond mere compliance with the external requirements of the law to appreciate the broader vision of community that it wishes to encourage. Fourth and finally, that broader vision of community exemplifies the fruitful relationship between autonomy and solidarity.
In order to explain more fully what these four key features of the Law as Teacher approach can involve in a concrete situation, I will take as my example the Americans with Disabilities Act, which was passed in 1990. While it is an American law, European countries are also taking significant steps in the same direction, so that much of my analysis of the ADA could be applied to corresponding laws in other countries.38
The purpose of the ADA is encapsulated in its name; rather than calling it the Disabled Americans Act, its sponsors chose the title “The Americans with Disabilities Act.” In so doing, they emphasized the law’s paramount goal of encouraging Americans to see the whole person before they see the disability when they encounter fellow citizens in wheelchairs, unable to see or hear normally, or unable to perceive and process information in the way that most people do. Like any good teacher, the ADA begins by reflecting upon the status of persons with disabilities in the contemporary United States. In its section on “Findings and Purposes,” the ADA states that: “some 43,000,000 Americans have one or more physical or mental disabilities, and this number is increasing as the population as a whole is growing older.”39
It also finds that:
“individuals with disabilities are a discrete and insular
minority who have been faced with restrictions and
limitations, subjected to a history of purposeful unequal
treatment, and relegated to a position of political
powerlessness in our society, based on characteristics that are
beyond the control of such individuals and resulting from
stereotypic assumptions not truly indicative of the individual
ability of such individuals to participate in, and contribute
to, society.” 40
In light of this situation, the ADA goes on to state its fundamental purpose, claiming that “The Nation’s proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals.”41
Note how closely the ADA’s goals correspond to Raz’s requirements for autonomy, particularly his second and the third requirements. Individuals with disabilities are not to be coerced or manipulated; ideally, they should achieve a level of independence with respect to their living and working arrangements that will prevent them from being utterly dependent upon the whims, wishes, and good will of others. Moreover, in calling for “equality of opportunity,” and “full participation,” the ADA clearly recognizes that persons with disabilities need a range of worthwhile options from which to choose if they are to exercise their autonomy in a fruitful manner.
Note, as well, the intimate connections between autonomy and solidarity with respect to the purposes of the ADA; it presupposes both that persons with disabilities need the assistance of the community in order for their autonomy to develop and flourish, and that the community will benefit from the exercise of their talents in turn. In contrast, the negative conception of freedom generally associated with the Law as Police Officer approach is virtually absent from the ADA. While that conception has a certain initial plausibility in the case of able-bodied persons, it is completely unpersuasive in the case of persons with disabilities. Moreover, once we see the way in which autonomy and solidarity can be mutually supportive in the case of such persons, we may reconsider the case of so-called “normal persons,” newly appreciating the ways in which flourishing of their autonomy also requires the support and contribution of the community.
The particular mandates of the ADA must be understood in light of its general purposes. They are not isolated prohibitions or requirements, but fundamental planks in an integrated program that articulates and partially implements a vision of the common good that precludes the marginalization of persons with disabilities. The ADA covers two basic aspects of social existence: employment and accommodation in public facilities. In the employment context, the general rule provides that no employer shall discriminate against “an otherwise qualified individual with a disability.” This requirement, however, is not merely a negative prohibition against discrimination; it also encompasses a positive requirement that the employer “make reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee”—except if accommodation is going to cause undue hardship.42
It is necessary, but not sufficient, to enable persons with disabilities to take their place in the work world. It is also essential to allow them to participate more generally in the public sphere, to become active and visible parts of the common life of the community. Subchapter 2 of the ADA requires those who operate public transportation to adopt plans to insure they have equal access. Subchapter 3 imposes significant obligations on private entities who operate public accommodations and services. By “public accommodation,” the ADA means to include all the business establishments most people patronize as part of their day-to-day lives: hotels, restaurants, movie theaters, laundromats, hairdressers, museums, parks, and the offices of doctors, and other professionals.43 It prohibits such establishments from discriminating against persons with disabilities— including by providing them with less-than-equal services and separating them from persons who have no disabilities. It also requires them to remove physical barriers that prevent such persons from having access, unless doing so would fundamentally alter the nature of their establishments, result in an undue burden upon their business, or the required alterations cannot readily be achieved.
The enforcement mechanisms of the ADA are modeled on those included in the Civil Rights Acts; they include equitable relief, including injunctive relief, as well as monetary damages. Unlike the Civil Rights Acts, the ADA does not impose criminal penalties for the most egregious violations of the law, but there is no reason the legislature could not amend the law to incorporate them at some later date, if they were deemed necessary to deter the worst forms of discrimination against persons with disabilities.
While the ADA is animated by and communicates a normative vision about the place of persons with disabilities within the broader community, it does not attempt to immediately realize each and every element of that vision by using the coercive force of the law. The world it mandates, in contrast to which it aspires, is not a perfect world. For example, the ADA includes no requirement of affirmative action on behalf of persons with disabilities. It does nothing to change the fact that governmental employment services for adults with disabilities frequently focus on those who suffer from the least severe problems, and who therefore are likely to count as “success stories” in the annual report of the relevant agencies without much effort on their part.
Nonetheless, the ADA does teach, gesturing beyond its requirements to its aspirations. Taken together, its three prongs attempt to bring into existence a culture where “normal” persons are more accustomed to seeing persons with disabilities in public places and have overcome any sense of uncomfortableness with respect to encountering and interacting with them. That in turn may encourage us to begin looking beyond their disabilities to see their very real abilities, which could be of great benefit to the broader community. Once this stage is reached, those who are legally bound by the ADA’s strictures (and those who are not) may find themselves willing to go beyond the law’s strict requirements in order to begin realizing its ultimate goals. In other words, the ADA points us toward, and attempts to teach us to participate in, an expansive vision of economic and social participation of persons with disabilities, a vision that the law itself only partially instantiates.
The vision, I think, is diametrically opposed to the vision animating the Ugly Law, with which I began this essay. It is one of autonomy, generally understood in Joseph Raz’s terms, and of solidarity, generally understood in the terms of Pope John Paul II. To close with his words:
“Solidarity helps us to see the “other”—whether a
person, people or nation—not just as some kind of
instrument, with a work capacity and physical strength to be
exploited at low cost and then discarded when no longer
useful but as our “neighbor,” a “helper” (cf. Gen 2:18-20), to
be made a sharer, on a par with ourselves in the banquet of
life to which all are equally invited by God.” 44
________
Notes
1 This article is a slightly revised version of an essay I published in Louvain Studies (winter 2002).
2 Chicago Municipal Code, sec. 36034 (repealed 1974).
3 Columbus, Ohio General Offense Code, sec. 2387.04 (1972).
4 Unsightly Beggar Ordinance, Omaha, Nebraska Municipal Code of 1941, sec. 25 (1967).
5 See Marcia Pearce Burgdorf and Robert Burgdorf, Jr., “A History of Unequal Treatment: The Qualifications of Handicapped Persons as a Suspect Class Under the Equal Protection Clause,” Santa Clara Lawyer 15:4 (1975) 855-910.
6 By “liberal legal theory,” I mean any legal theory that gives priority to individual liberty. As will become clear as this essay progresses, liberal legal theorists have developed a number of very different ways articulating the meaning, requirements, and limitations of “individual liberty.”
7 John Stuart Mill, On Liberty (1859).
8 Joel Feinberg, The Moral Limits of the Criminal Law (New York: Oxford University Press.”, Harm to Others (vol. 1, 1984), Offense to Others (vol. 2, 1985), Harm to Self (vol. 3, 1986), and Harmless Wrongdoing (vol. 4, 1988).
9 Thomas Aquinas, Summa Theologica, I-II, qq. 90-108
10 Joseph Raz, The Morality of Freedom (Oxford: Oxford University, 1986).
11 Feinberg, Harmless Wrongdoing, xxvii-xxix.
12 Feinberg, Harm to Others, ch. 1.
13 Feinberg, Harm to Others, 37.
14 Feinberg, Harm to Others, ch. 3
15 Feinberg, Harm to Others, 115-118.
16 Feinberg, Harm to Others, 4.
17 Feinberg, Harm to Others, 115-118.
18 Feinberg, Harmless Wrongdoing, 20-25.
19 Feinberg, Harmless Wrongdoing, ch. 29.
20 Raz, The Morality of Freedom, 410.
21 Raz, The Morality of Freedom, 396.
22 See, e.g., Feinberg, Harmless Wrongdoing, ch. 29.
23 It is far more difficult to be committed to autonomy and civil rights in war time than in times of peace. For example, in World War II, the United States government decided to inter a number of Japanese-Americans in detainment camps in order to prevent them from assisting the enemy. See Korematsu v. United States, 323 U.S. 214 (1944). In the current era, there are no doubt some who believe it would be expedient and efficient to place restrictions on those of Arab descent in order to combat the threat of terrorism. Only a robust moral commitment to the importance of individual dignity and autonomy will act as an effective counterweight against such beliefs.
24 Raz, The Morality of Freedom, ch. 14.
25 The theorist who has most vividly made this point is Alasdair MacIntyre. See his Whose Justice? Which Rationality? (Notre Dame: University of Notre Dame, 1988).
26 Aquinas, Summa Theologica, I-II., q.92, art. 1.
27 Aquinas, Summa Theologica, I-II, q. 92, art. 1.
28 Aquinas, Summa Theologica, I-II, q. 95, art. 3.
29 Aquinas, Summa Theologica, I-II, q. 96, art. 2.
30 See, e.g., Feinberg, Harmless Wrongdoing, 155.
31 Aquinas, Summa Theologica, I-II, q. 96, art. 2 and 3, and II-II q. 58 arts. 8
and 9.
32 See Aquinas, Summa Theologica, II-II q. 58 art. 9.
33 Ibid.
34 Pope John Paul II, Sollicitudo Rei Socialis (Boston: Pauline Books & Media,
1987) no. 38.
35 Civil Rights Act of 1964, Pub.L.No. 88-352, 78 Stat. 241 (codified as amended in scattered sections of volumes 28 and 42 of the United States Code) and Civil Rights Act of 1968, Pub.L. No. 90-284, 82 Stat.73 (codified at 25 U.S.C. secs. 1301-1341 (1994) and in scattered sections of volumes 18, 28, and 42 U.S.C.).
36 Family and Medical Leave Act of 1993, Pub.L.No. 103-3, 107 Stat. 6 (codified as amended at 2 U.S.C. secs. 6om-on; 3 U.S.C. secs. 2601, 2631,
2651 (1994)).
37 Americans with Disabilities Act, (ADA) Pub.L.No. 101-336, 104 Stat. 328 (1990) (as amended in scattered sections of 42, 47, and 29 U.S.C.).
38 Article 26 of the Charter of Fundamental Rights of the European Union calls for the integration of persons with disabilities, recognizing their right to “benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community.” Article 13 of the Treaty of Amsterdam has given priority to the battle against all kinds of discrimination, including discrimination on the basis of disability. Council Directive 2000/78/EC (27 November 2000) establishes a general framework to fight discrimination, and calls for the social and economic integration of elderly and disabled people.
39 ADA, sec. 12101(1).
40 ADA, sec. 1201 (7).
41 ADA, sec. 1201 (8).
42 Needless to say, what constitutes an “undue hardship” is a heavily litigated issue, as is who falls into the category of “an otherwise qualified individual with a disability.”
43 ADA, sec. 12181(7).
44 Pope John Paul II, Sollicitudo Rei Socialis, no. 39.
