Why Catholic Legal Theory?

Dave over at The Disenchanted Idealist remains unconvinced as to the usefulness or importance of Catholic Legal Theory. Since I do believe said theory has an important role to play in contemporary discourse, I thought I'd pen a defense.

Complicating matters slightly is that the post that precipitated Dave's was my own attack on a CLT analysis of the Israeli/Arab conflict. So I'm not going to respond to those specific complaints, because I agree with them. But I will defend the enterprise as a general matter.

Dave's complaints can be grouped into two rough categories. First, that CLT does not offer novel normative analysis, second, that a theory being "Catholic" gives it no presumptive authority for non-believers. I'll address these in turn.

I. Novelty
A. CLT offers several novel insights of value to the larger community
For many years, law has been expressed as a monolith, one majestic legal edifice that could adequately encompass the normative commitments of all its residents. The rise of "Critical X" theories of law, whether Critical Race Theory, LatCrit, Black Feminism, or what have you, has seriously challenged this doctrine. Disciples of this school believe that rather than a single unified whole, law is an expression of a certain historical particularities which have "risen to the top" and suppress conflicting interpretations. Critical X seeks to provide a voice to the suppressed X.

In this paradigm, the unique contribution of CLT should be obvious: It provides a voice to Catholics in American and international law. Law and Catholic interests intersect over many areas, some obvious, some not. Unfortunately, America has a long tradition of anti-Catholic prejudice that needs to be grappled with. For example, the Blaine amendments the Court recently dealt with and upheld in Locke v. Davey were a byproduct of vicious anti-Catholic sentiment in the late 19th century. In fact, much of modern Church/State jurisprudence grows out of anti-Catholic prejudices manifesting themselves in the 1950s, as CLT scholar Thomas Berg has written. Berg's forceful advocacy of an "accommodationist" Church/State standard has swayed me away from my prior strict separationist stance.

But regardless of whether you agree with the particular policy prescriptions of CLT theorists, it remains clear that they offer a voice to a particular sub-group in American life that needs to be heard. I'm not sure why that doesn't qualify as a unique benefit, just like CRT gives voice to Blacks, and LatCrit gives voice to Latinos. We should exercise extreme caution when banishing a particular viewpoint from the city, and should take note when we determine that a given perspective is not worth our time to listen to.

B. Novelty isn't a prerequisite to usefulness
In other areas, Catholic Legal Theory may not be novel at all, in the sense that one could find similar non-Catholic justifications for the same policy decisions. But this is not the same as proving Catholic legal theory is useless or dangerous. First of all, noting that a given minority group concurs with a particular theory of justice or social order is useful information, even if they didn't think of it first. But beyond that, even if nobody else gets anything from it, CLT is important and useful for Catholics. It's a good thing when people who have a strong set of social commitments grapple with the implications of those commitments critically, rather than blithely asserting "well, I'm Catholic so of course I believe that..."

Call this the "it's not all about you" response. If Catholics can find a deeper and more vigorous expression of their ideals through CLT, I'm not sure why that isn't an independent benefit even if it doesn't do a whit for the rest of us. And even if they could find these new perspectives from other sources, there are definite advantages from seeing the arguments develop inside the faith. As Tommie Shelby notes "The transformation of...the political consciousness of any group...is more likely to come about if the new vision can be comprehended as an extension of, rather than a radical rupture with, traditional beliefs of the group." The vigorous debate and heterodoxy that CLT encourages is a boon. And by extension, it is good for outsiders to pay attention to these debates, so we can see the thought processes, values, and procedures that are leading to particular normative outcomes. In addition to allowing us to communicate better, it shows respect for the dignity of an alternative community and way of viewing the world--a must for anyone who seriously advocates post-modernism and pluralism.

II. Normative Strength
Dave also argues that there is no reason for a non-believer to give any additional weight to a "Catholic" perspective--either to accept it on those grounds, or reject on those grounds. That's all well and good (with the significant caveat that I think Catholic voices should get enhanced weight when talking about policies that impact them as Catholics, in a similar sense that we should give enhanced weight to racial minorities when discussing issues of racial hierarchy). However, the fact that the Catholic endorsement gives no additional metaphysical strength in no way impacts the usefulness of the theory, especially for post-modernists like Dave and I, because no theory can self-justify itself under an ahistorical and acontextual set of principles. The benefit of CLT isn't that it presents a worldview that is presumptively better than Liberalism or Communism or what have you, its that it presents another worldview which may be better than these things in a given context. It may shed light where other theories have blind-spots.

Of course, Catholicism likely does believe itself to be a capital-T truth--but that doesn't distinguish it from most secular philosophical schools. In an ideal world, perhaps people would abandon the fruitless search for foundations ("The Quest for Certainty", to use Dewey's words) and admit to contingency. But in the real world, the next best thing is a diverse array of capital-T truth candidates, all asserting their primacy. As long as they agree to live in harmonic pluralism, though, it doesn't really matter how they conceptualize themselves. The presence of several, even many, philosophical schools, each with their own contingent foundations, poses no threat to a post-modern view of philosophy, indeed, it is its very essence.

Meanwhile, anti-foundationalists like me can draw at will from this thousand-flower garden. The recognition that foundations are contingent does not mean that I reject any theory that has a foundation. This would be both fruitless and hypocritical. What it does mean is that I can take a given bundle of a priori normative commitments (say, the ones that undergird Catholicism, or Liberalism, or Marxism), and run with them awhile to see where they take me on a given topic. Sometimes they'll offer a useful solution, sometimes they won't. That's fine. But the people tilling the soil are what opens up these philosophical horizons. Hence, Catholic Legal Theory is not just dropping "Catholic" with a flourish over a secular structure. CLT allows us to examine the pragmatic upshot of following a particular set of values in a particular situation. And from a pragmatic perspective, if it works, why not go with it over any other equally contingent ideology?

So, to sum up. CLT has at least three independent benefits attached to it. First, it is useful when Catholics qua Catholics are implicated in the normative discussion (as in Church/State issues). Second, it is useful for Catholics, because it is qualitatively good for them to have frameworks for discussing a diverse array of issues within a value framework they already subscribe to (and by extension, the rest of us benefit from knowing the procedures this community uses to come to its own consensus'). Third, CLT elucidates the impacts of following a specific course in a specific context--important in a world where answers might not come from the usual sources and where we must look to a pluralistic community of many voices to find the best solution to vexing problems.

In the diverse garden of a post-modern world, surely there is room for the Catholic legal flower?