Thursday, November 2, 2006

Ecumenical Reactions to Sulentic on Catholic Social Thought as a Source of Ethics Distinct from Law

Alison Sulentic (Duquesne) has posted Now I Lay Me Down to Sleep: Work-Related Sleep Deficits and the Theology of Leisure (Notre Dame Journal of Law,Sulenic Ethics and Public Policy, Vol. 20, p. 749, 2006) on SSRN.  I have some comments following the abstract:

This Article considers whether Catholic social thought can sustain public policies in favor of rest and renewal with a force comparable to the contribution it has made to other workplace rights. In particular, the Article traces the theological contributions of John Paul II and Josef Pieper. The Article provides an overview of the clinical knowledge concerning sleep deficits in relationship to current practices in scheduling shift work. Finally, the Article suggests that the right to rest is ill-protected by statutory laws such as the Americans with Disabilities Act. Moreover, relying on fear of tort liability as a tool to motivate employers to adopt rest-friendly policies is a strategy fraught with too many contingencies to seem entirely reliable. The practice of virtue, as understood in the Catholic social thought tradition, requires more of an employer than simply choosing business practices that meet minimum requirements of local law or that prove to be effective instruments to achieve a particular end. Instead, the values of Catholic social thought require employers to take a leap of faith by creating humane work schedules not because they are legal or useful but because they respect human dignity. In sum, while arguments grounded on the desire to avoid liability or to achieve efficient goals may prove persuasive, Catholic social thought supports these arguments by refocusing attention on the party on whom all work depends: the human person - someone, not something.

It's interesting to read the work of legal scholars explicating Catholic social thought, and there are quite a few, including Mark Sargent, Susan Stabile, Amelia Uelmen and Professor Sulentic.  It is, for me, a happy juxtaposition with the comments on my earlier post about teaching ethical argument. The title, taken from a post over at PEA Soup, did not reflect my own view whether a skeptical argument equals a sophistic argument.  But the substance of the comment, which appears to be defending a skeptical, anti-foundationalist approach to ethics generally, demonstrates the uncomfortable position in which I find myself, philosophically and ethically speaking.  For better or worse (but mainly because I grew up in a liberal Jewish tradition), I don't find intellectual satisfaction in as secure a source of ethics as those writing in the area of Catholic Social Thought, even if I am wholly sympathetic to the outcomes.  In Law as Rationalization, I tried to walk the line between dogma and skepticism, looking as much as possible for, as Dan Markel so kindly put it, a heterodox and secular acknowledgment of some foundation - some First Cause - out there somewhere that helps explain the different between law and ethics.  We pragmatic idealists can never satisfy the skeptics that we are not, at heart, religionists, nor explain to the religionists why we just don't take the last step and put a name to the First Cause.  But Professor Sulentic's abstract certainly appeals to the Kantian in me.

[Jeff Lipshaw]

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I think you misunderstood the purpose of my earlier comments. It wasn't that I was "defending a skeptical, anti-foundationalist approach to ethics generally" but that (1) such a position is not mere sophistry, and (2) until you can at least engage the skeptical, anti-foundationalist in a rational discourse, you will always leave your foundational arguments open to attack.

At some point, if the skeptical, anti-foundationalist wishes to do anything more than just drip acid on the foundationalist claims, he or she will need to figure some way of articulating a basis for ethics.

Within the religious sphere, I think various Buddhist traditions could help out with a moral or ethical vision that is anti-foundationalist in nature, though I'm not sure how these ideas would transfer to the legal ethics field.

Nonetheless, I think there is a case to be made for legal ethics without resorting necessarily to foundationalist theories.

Posted by: Lee | Nov 2, 2006 10:44:18 AM

If "foundational" in this sense means a thinking, acting personal God, you may be right in the characterization of Eastern religions, but I don't know enough to say. I keep a copy of the Tao around, and it seems true of that. But I'd argue that there is still a "first cause" notion in there, and hence it is foundational, even if not centered around God in the Western sense.

Posted by: Jeff Lipshaw | Nov 2, 2006 11:41:09 AM

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