Author: Amy Uelmen

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Normative Jurisprudence and Cover’s “Obligation: A Jewish Jurisprudence of the Social Order”

My reading of Normative Jurisprudence coincided with a re-reading of one of my all-time favorite pieces, Robert Cover’s Obligation: A Jewish Jurisprudence of the Social Order (it is included in the wonderful reader by Howard Lesnick, Religion in Legal Thought and Practice that I assign for my “Religion and the Work of a Lawyer Seminar”).

In this very short essay, Cover opens up the categories of jurisprudence to recognize the integrity of religious systems of thought and the contribution that they can bring precisely in this integrity.  Asked to reflect on Judaism and human rights, he has the courage to say: “the categories are wrong”—because “Judaism has its own categories for expressing through law the worth and dignity of each human being.”  In his analysis, discussions about jurisprudence do not need to be stuffed into, or reduced to, the categories and frameworks of philosophical liberalism.  Within the field of jurisprudence, there is space to explore other “fundamental words” and the “fundamental stories” from which those words receive their force and meaning.

As he tells the “stories” behind two different key words, “rights” and “mitzvah” (obligation), Cover sets an appreciative, conversational tone.  Because each system of rhetoric has a differently “loaded, evocative edge,” each goes to the nub of different problems.  Each has strengths and weaknesses, but there is room and need for both—“Sinai and social contract both have their place.”

He concludes with a reflection on where the “loaded, evocative edge” is in his own personal and religious experience.  Scanning his own “privileged position” and the blessings in his own life, Cover concludes “it seems to me that the rhetoric of obligation speaks more sharply to me than that of rights.”

With Cover’s piece in the background, first a rhetorical appreciation for Robin’s work:  to me, her Normative Jurisprudence project has “feel” similar to Cover’s essay – a capacity to appreciate and engage the depth of common key questions, while at the same time respecting profound differences, and also realizing that systems of thought can converse without polarizing or collapsing into each other.

Second, a question about categories and frameworks, in light of the project “to develop a liberal and progressive natural law jurisprudence” (57): Considering Robin’s concerns about the moral obligations of legislators, and the question of what a legislator ought to do with the lawmaking power that one has (“We do not have a way of even asking, let along answering, what law that we currently lack legislators might have a positive moral duty to enact”) (37) – at what point might these kinds of questions and concerns in some sense push the project off the map of what is “liberal”?

Amy Uelmen

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Normative Jurisprudence and Catholic Social Thought

I’d like to start with appreciation not only for Robin West’s analysis but for the open and inviting tone with which she engages theorists across the political spectrum.  She invites progressive engagement with ethical natural law’s concerns with “what the law should be, what our ideals should be, how those ideals relate to our own understanding of both human nature and the human good, and how or whether actual law can be brought into alignment with that ideal,” – a conversation in which “conservatives and libertarians are already engaged.” (14)

Progressives, she submits, should get over their “squeamishness” (12), and seriously engage a movement that has been “the home of profoundly conservative and even fringe conservative claims” (15) – even if “the answers they have produced over the past one hundred years have not been attractive or conducive to liberal sensibilities” (16)  Her analysis of the ethical natural law current focuses for the most part on the work of influential legal theorists such as John Finnis and Robert George, whose work has been widely discussed also given the current political focus on questions of sexual relationships and ethics.

I’ll grant that the work of these authors is among the most developed in legal theory, and explicitly identified with “natural law”; and that current debates about sexual ethics are urgently important for the body politic, and for legal scholars in particular.  But given the scope of Robin’s important project – the hope to beef up substantive discussions about the extent to which law can align with our ideals about human nature and the human good – and to engage these questions “across the political spectrum” (16), when it comes to characterizing the Catholic intellectual tradition, it might be helpful to widen the circle of conversation partners.

I’d like to suggest that among scholars working this current of thought, conversations about law, human nature and the good reside not only in “the social conservative (and occasionally libertarian) right” (16) – but they run the full gamut of the political spectrum.  Many of the themes that Robin identifies as important for the normative jurisprudence project – human anthropology, human flourishing, and the relational nature of human experience, and consequently, the limitations of myopic economic analysis – have all been the subject of in-depth reflection in which the substantive content of the good is debated vigorously – often resolving in different ways the creative tensions between the Catholic social thought principles (e.g., subsidiarity, solidarity, private property and the universal destination of goods, and the common good).  In some applications, many of the answers have been attractive to liberal sensibilities.

The left-right contours of the debates over how to interpret and implement Benedict XVI’s 2009 letter on the economy, Caritas in veritate, are a good example of how discussions about the common good in labor relations, corporate structures, community economic development, and protection of the environment, are aligned with varying political leanings.

In her chapter on Legal Positivism, Robin quotes Matt Adler’s lament that lawyers do not pay enough attention to developments in academic moral philosophy, and she sets out a wonderfully thought provoking description of how lawyers reflexively shy away from moral argumentation regarding law (103-104).  I realize that my proposal to expand the interdisciplinary dialogue to include moral theology invites considerable complexity – and that especially in their contributions to legal theory, Catholic intellectuals may need to do a better job “translating” their presuppositions and the foundations of Catholic social thought framework.  But I do believe that it would bring an extremely rich and multi-layered contribution to discussions of how discussion of how social structures, including law, might align with a substantive conception of the good.

Amy Uelmen