Law's Virtues: Fostering Autonomy and Solidarity in American Society.

Hinze, Christine Firer

Law's Virtues: Fostering Autonomy and Solidarity in American Society. By M. Cathleen Kaveny. Washington: Georgetown University, 2012. Pp. xii + 292. $29.95.

In this valuable book Kaveny proposes a "new framework through which to view the relationship between troubling life issues and the realm of law in pluralistic liberal democracies such as the United States" (1). In addressing vexed subjects like abortion and euthanasia, K. prefers neither the "firewall" model favored by many social liberals that separates morality from law, nor the "enforcement" model favored by many social conservatives that legally bans immorality. By oversimplifying relations between public morality and law's functions, both models lead to unclear, ineffectual, even harmful policy-making. Working from a stance she describes as broadly Thomistic, K. promotes an alternative model of law as a "teacher of virtue." Isidore of Seville's seventh-century precis of good law as "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; and framed for no private benefit, but for the common good" (3, 30, 97) provides a larger grid that lends flexibility to K.'s analysis and arguments. As she navigates the complexities of legal theory, philosophical and theological ethics, and public policy, K. asks readers "to consider the proposals I make on their own terms and for the reasons I advance" (6).

Lawmaking in a pluralistic, often conflictual public arena is best pursued by strategies that are "optimistic about the effectiveness of moral pedagogy without being utopian, and realistic about moral disagreement without being relativistic" (2).

A pedagogical approach to law, K. believes, can help overcome "liberal-conservative culture-war impasses." The book models legal ethics as an exercise in phronesis and makes an appeal for a normatively committed jurisprudence that works patiently and incrementally to advance public morality on disputed matters.

Part I, "Law as Moral Teacher," addresses foundational questions concerning law's features and functions, the relationship between law and morality, and what and how law should "teach." In a pluralistic democracy, K. argues, the law ought to embody two paramount virtues: "autonomy" (understood in Joseph Raz's sense as a socially situated capacity for individuals to be part-authors of their own lives through decisions "to pursue one of a number of options for living that are widely recognized to be morally worthwhile," 129); and "solidarity" (in Pope John Paul II's sense as the willingness to act for the common good in light of an embrace of the responsibilities of interdependence, 7, 27-28). K. sees autonomy and solidarity, so understood, as modern instantiations of the Aristotelian-Thomistic virtues of prudence and justice (52-54).

In part II, K. demonstrates how her approach can help clarify and reframe moral, political, and legal debates surrounding contentious life issues like abortion, euthanasia/assisted suicide, and the sharing of genetic information. Part III parses the responsibilities of citizens and voters when faced with morally objectionable legislation or candidates holding mixed records on such legislation. Along with the opening chapters, chapter 3, "The Pro-Life Movement and the Purpose of Law," and chapter 10, "Voting and Complicity in Wrongdoing," showcase K.'s lawyerly, theological-ethical acumen, and ameliorative, division-bridging aims especially well.

The knotty problems of relating moral principles to law in a pluralist polity and of engaging with civility amid serious societal disagreements reverberate through this text. On the first problem, K. challenges thin-consensus legal minimalists to recognize law's moral and teaching functions. Against legal maximalists, she contends that "attending to the practical limits of the law in inculcating a moral message" is not a matter of selling out or "pragmatic resignation," but rather "an essential part of sound jurisprudence." Prophetic and pedagogical rhetoric and practice differ; the path from moral convictions to good law (in Isidore's sense) is neither straight, nor easily traversed. Even if it were possible to do so, "there are principled reasons why lawmakers should not attempt to legally impose a moral vision that is too far out of step with community values, particularly if the vision relies heavily on the criminal code for implementation" (2). Indeed, "no lesson plan can be effective if it outstrips the knowledge, abilities, and commitments of those it purports to instruct" (3).

On the second problem, K. is passionately convinced that intransigent antagonism and violent polemics do nothing to foster positive personal or cultural transformation. She thus challenges opposing camps to move beyond mutual dismissal and to join her in taking seriously "both the existence and good faith of fellow citizens who disagree with me on these important questions" (6). Her ultimate aim is "to sketch a view of law's moral pedagogy in a pluralistic society that can foster a culture of life without fueling the culture wars," in the hope that "more Americans will try to be teachers rather than warriors" (276).

K.'s project opens important further questions. How, specifically, can commitments to solidarity and autonomy guide wise lawmaking on contested public issues? What fruit might dialogue between K.'s work and the literatures of liberationist ethics or critical-theoretical jurisprudence yield? Finally, K. persuasively promotes a "pedagogical" over a "police officer" jurisprudential framework. But on divisive public issues, why would impasses over how and what law should teach be more readily avoidable than impasses about enforcement? Whatever their positions on the controversies K. treats, readers will be informed and stimulated by this learned and lucid book.

DOI: 10.1177/0040563915593486

Christine Firer Hinze

Fordham University, New York