The common good of constitutional democracy: essays in political philosophy and on Catholic social teaching

Eight: Rawlsian Public Reason, Natural Law, and the Foundation of Justice: A Response to David Crawford

EIGHT rawlsian Public reason, natural Law, and the foundation of Justice A Response to David Crawford a “Benign interpretation of Liberalism” In his article “Recognizing the Roots of Society in the Family, Foundation of Justice,”1 David Crawford has provided a very valuable account of human society as founded in the family union, which on its turn is based on the marriage between two persons of opposite sex. The marital union, Crawford argues, is the expression of human beings’ bodily constitution: individual human persons are constituted as sexually differentiated as male or female. In genuinely Aristotelian tradition, he moreover affirms that human society is not formed simply by “individuals,” but by “men” and “women,” mutually ordered to each other to form the basic social community called “marriage,” which by its nature is reproductive. As such they form the basis of society, that is, its “first and vital cell.” Crawford stresses that it is precisely in the family where the notion of justice arises and is most basically learned, and that any public endorsement of a conception of justice and the corresponding institutions must be rooted in, and in a way reflect, the anthropology implied in the structure of what he calls the “familial person.” His “familial anthropology” is not only inscribed in the structure of the human body. As a theologian, Crawford also gives it a Trinitarian-Christological foundation that he under265 1. Communio 34 (Fall 2007): 379–412. 266 rawlsian Public reason, natural Law & Justice stands as a cultural proposal, which, being a theological doctrine, is not to be “juridically impose[d]” on civil institutions, but “to be judged ... according to its intrinsic merits” (403). Crawford wants to show that, because of its voluntarist and procedural concept of justice, liberalism—as he understands it—is essentially opposed to such a cultural proposal that contains a “comprehensive” view of the good, the person, and the family. Liberalism, he claims, is instead pure proceduralism; it tries to conciliate and to legally protect and promote any individual preference, endorsing therewith individualism as a publicly valid anthropology and conception of the good that is intrinsically hostile to a true conception of the family as proposed by him. With this, Crawford concludes, liberalism contradicts its own principle of being neutral and of abstaining from publicly recognizing and promoting a determinate conception of the good. In developing his proposal, Crawford concedes a central place to the evaluation of my, as he says, “critical engagement and qualified appropriation of Rawls’ notion of ‘public reason,’” as contained in my 2005 Natural Law Lecture at Notre Dame Law School.2 Crawford tries to show that, though referring to natural law, I do not succeed in avoiding the shortcomings and errors of liberal proceduralism, and that my conservative “benign interpretation” of liberalism does not surmount the central flaw of all liberal conceptions: their incapacity of rooting the public conception of justice in a sound anthropology. A sound anthropology, on the contrary, will express a substantial and comprehensive notion of the good, such as the anthropology of the nuptial character of the human body and the “familial person” with its Trinitarian-Christological foundation, as developed in Crawford’s article. After a first reading, I was somewhat embarrassed because I agree with most of what Crawford says in his article about anthropology and the family as the fundamental and vital cell of society. I not only agree with it, but thirty years ago as a young philosopher and then a layman, I wrote a book on the family, defending its origin in natural law and arguing that it was the basic cell of society and a “school of the virtues,” including first of all justice.3 The book did not become what one usually calls “an editorial suc2 . This is published as chapter 7 of the present volume. It was originally published as “The Political Ethos of Constitutional Democracy and the Place of Natural Law in Public Reason: Rawls’ ‘Political Liberalism’ Revisited,” American Journal of Jurisprudence 50 (2005): 1–70. 3. See my Familie und Selbstverwirklichung. Alternativen zur Emanzipation (Cologne: Verlag Wissenschaft und Politik, 1979). rawlsian Public reason, natural Law & Justice 267 cess.” Besides other unquestionable defects, it too sharply contrasted with the mainstream ideology of the late seventies, which was putting individual “emancipation” above the engagement in marital bonds and the good of the family life. Yet, despite of this lack of success, I have never changed my...