Gerard Bradley on the Common Goods of Common Concepts

The Notre Dame School of Law's Professor Gerard V. Bradley spoke at the Archdiocese of Denver's Respect Life Conference on October 28, 2006. Alas, I'm only now getting around to recording my notes. Bradley discussed the interplay between law and culture, especially the legal regime instituted by Roe v. Wade.

He said that two of the most vital questions of law and life are: "Who is my neighbor"? To whom do I owe justice?

The idea of equality goes out the window if one manipulates who counts as equal. everyone gets treated equally, but we get to decide who "everyone" is.

Bradley spoke of Roe "cutting people off from society" because they inhibit the flourishing of the community. With consistency, he also noted that Thomas Aquinas made a similar argument for the death penalty, saying

For this reason we observe that if the health of the whole body demands the excision of a member, through its being decayed or infectious to the other members, it will be both praiseworthy and advantageous to have it cut away. Now every individual person is compared to the whole community, as part to whole. Therefore if a man be dangerous and infectious to the community, on account of some sin, it is praiseworthy and advantageous that he be killed in order to safeguard the common good, since "a little leaven corrupteth the whole lump"

Bradley also noted the necessity of abortion to the success of feminism in the workplace. He pointed out that the Supreme Court reasoned against overturning Roe v. Wade precisely because it would hinder women's equaltiy:

The Roe rule's limitation on state power could not be repudiated without serious inequity to people who, for two decades of economic and social developments, have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.
-Planned Parenthood vs. Casey

Bradley held that the question "when do people begin?" should be same question as "When do people begin for purposes of legal protection?" The dualism between legal persons and real persons is ultimately pernicious, enabling the subjection of the weak to the strong.

His most insightful commentary came, I believe, when he examined how common conceptions can be common goods. He concentrated on marriage and the impact of its changing definition over time:

Think, for example, of what happened about forty years ago, about '65-'70. If you can remember that long ago, you know that there was a revolution in American law. It was called the "No Fault Divorce" revolution. In the space of literally about six years, we went from a national pattern of divorce only for fault(abandonment, adultery, cruelty mental or physical). It probably was true that you had what amounts to a mutually agreeable divorce, where one or the other party, probably the husband, would lie in court and admit some abuse that didn't really happen.

Be that as it may, the law was divorce only for fault. Within about seven years or so, that was just gone.
Now think about that.

Even those people after this revolution--if you have kids or grandkids who are twenty today, how hard is it for them to come to actually believe and stand with the proposition of the faith "Marriage is permanent." The law changes rapidly, divorce becomes more common, divorce is nobody's fault, and it's OK for the kids too, we told ourselves.
Now it's a pattern. It's not as if the law is making anyone get a divorce, but the understanding that marriage is not permanent, not unconditional, that understanding is now our common property.

The debate about same-sex marriage is a similar kind of thing. People who are advocates of same-sex marriage say, "you don't have to marry the same sex, just let others."

What's at stake in that debate is whether marriage will have a definitional standing in our legal culture, of having any necessary relationship with kids. When you say men can marry men, women can marry women, a man can marry a woman too, but they'll all be married. That means they'll all get involved with marriage, and given what we do know, that a lesbian couple and a gay couple can't have children of their own, that means marriage is no longer intrinsically, that is, necessarily, about children. That's what's at stake in the same-sex marriage debate. That's the part of it that affects all of us.
I fear that I give this same presentation twenty years from now, my example won't be divorce, but kids and marriage. I'll say to you then, think about your kids or grandkids who are twenty-two. Do they understand that marriage is a procreative relationship? A conjugal union?

They might grow up in a society in which people grow up and get married, and it's clear that not only because of same-sex marriage but for other reasons too, that kids really are optional. Some parents do it, some don't, it's for them to judge, it's what they want.

Now that's what affects all of us. Make the legal change, you change the definition of marriage in law--divorce, kids, same-sex marriage--that becomes a common cultural property before long.

Bradley also critiqued a few strategies for reducing abortion.

First is the school which says "Change the culture; then the law, educate, then legislate." This attitude, as well as the view adovcating the opposite order, suffers from a chicken-egg problem, thinking it has to be one first, then the other.

"We have to educate, change the culture, and attack the root causes of abortion" goes a pro-choice, and even some pro-life arguments.

But what are the root cause of unwanted pregnancies?

Not fornication, nor even a lack of personal responsibility

Rather, the root cause of abortion demand is people who have sexual relations, but nonetheless have no interest in having children.

Bradley also held that the idea that pregnancies, as things go, are either wanted or unwanted, is also a root cause. To think that pregnancies are called into being, and a pregnancy not consciously called into being is therefore terminable, is at last to think against humanity. Children are "begotten, not made," unexpected and undesigned gifts rather than simply extensions of adult plans.

Bradley, himself a father, referred to his own life: "I have eight kids. Let's put it this way: I'm not so sure the kids I have are the kids I wanted." The habit of pregnancy at-will cannot be sustained without compromising the nature of parenthood and unconditional love.