The work of the late Jean Bethke Elshtain reflects a commitment to careful, accurate, grounded descriptions of reality. To be sure, Elshtain was as deft and comfortable as a theorist ought to be with abstractions. Yet she always remembered that abstractions are, in a sense, tools, and that they are useful and illuminating only to the extent that they capture and reflect the particular, the everyday, and the lived experiences of real persons.
To “think really honestly”—as Elshtain called us all to do—we must speak as accurately as we can. Thus, as Professor Arlene Saxonhouse has explained, Elshtain corrected a feminist critique of language by insisting that “everyday, ordinary language infused with moral terms”—language that captures the fact that we are “situated creatures with particular and shared histories”—can be liberating, not oppressive. And Elshtain appreciated, as Professor William Galston once noted, that “theorists must engage with reality,” using “public language,” in a “spirit of generosity and inclusion.” Elshtain’s “social feminism,” he observed, is “based on the concrete lived reality of women” and on the centrality to that reality of their “historic mission,” namely, the “protection of vulnerable human life.”
My colleague at Notre Dame Law School, Professor Thomas Shaffer, proposed that ethics is “valid only to the extent that it truthfully describes what is going on.” The same thing is true, Elshtain’s work proclaims, of political theory and feminist discourse. We must “truthfully describe what is going on” with respect to the nature and destiny of real men and women. Our theory and law must reflect and protect what Pope John Paul II called the “moral truth about the human person."
This truth is the aim and subject of “moral anthropology,” a topic about which Elshtain’s work has much to teach us. By “moral anthropology,” I mean an account of what it is about the human person that does the work in moral arguments about what we ought or ought not to do and how we ought or ought not to be treated. Every interesting problem that ethics, political theory, or law confronts is, then, an anthropological problem. Every attempt at solving such a problem will reflect foundational assumptions about what it means to be human.
These assumptions matter. If they are inaccurate or incomplete—if they are untruthful—then we have little reason for confidence in the analysis and conclusions that follow.
Elshtain appreciated, in her political theory and in her “social feminism,” the importance of an accurate understanding of “what it means to be human.” We cannot think well about what it means for men and women to flourish and be free if we don’t know what—and who—they really are.
Consider, then, what C.S. Lewis wrote, in The Weight of Glory:
There are no ordinary people. You have never talked to a mere mortal. Nations, cultures, arts, civilizations—these are mortal, and their life is to ours as the life of a gnat. But it is immortals whom we joke with, marry, snub, and exploit—immortal horrors or everlasting splendours.
Elshtain understood the significance of this anthropological and theological fact for politics, ethics, and law. In a 1999 essay called “How Should We Talk?” she suggested that the ongoing debate about the role of religion and religious believers in democratic politics should not proceed without attention to “anthropological issues” and “presuppositions.” Unfortunately, the anthropology that “underwrite[s] modern liberal contractarianism,” she argued, is one that
sees us as essentially free standing, self-possessing, self-defining, and self-naming creatures. We relate to others to the extent it seems expedient, prudential and part of self-interest, rightly understood. Of course, there is love and family commitment, but the tendency is either to bracket these as the exception that proves the rule or to bring the family, too, under the wings of an anthropology that distorts it profoundly.
She developed this concern further in a review of Michael Perry’s The Idea of Human Rights. Claims of and talk about “human rights” are, she insisted, founded necessarily on “certain anthropological presuppositions.” Some presuppositions are capable of sustaining the human-rights project but—she warned—some might not be.
“A view of a primordially ‘free’ self haunts the modern rights project,” she wrote, contrasting that view with the one proposed in Catholic social teaching. The latter view sees human persons as “intrinsically, not contingently, social. We are born to communion, to relationality.” Accordingly, Elshtain believed that rights “are lodged in an ontology of human dignity” and that this “dignity of the self cannot be dehistoricized and disembodied as separate from the experiences of human beings as essentially, not contingently, related to others.”
As Elshtain pointed out, much of our legal, political, and constitutional discourse rests on a superficially appealing but incomplete and ultimately unworthy account of what it means to be human. This account was captured well in the “mystery passage” of the joint opinion in the Supreme Court’s 1992 decision in Planned Parenthood v. Casey: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” This account, as Elshtain observed in the 1999 review of Perry, is “impoverished.” At the same time, there is no getting around the fact that it is also “so deeply entrenched that . . . it is simply part of the cultural air we breathe.”
However, as Elshtain’s work illustrates, there is another “moral anthropology” worth embracing and proposing, one that emphasizes not so much our autonomy and self-sufficiency as our dependence and incompletion. We are not merely agents who choose; we are people who belong. We live in a state of “reciprocal indebtedness,” in what Professor Gilbert Meilaender once called an “in between” place, “between the beasts and God.” Our dignity and “greatness,” as John Paul II put it, is founded less on self-sovereignty and authorship of our destiny than on our “being creatures of a loving God” toward whom “the only proper and adequate attitude is,” therefore, “love.”
Along with this concept of moral anthropology, Elshtain’s work is also remarkable for its development of the idea of “social ontology.” I am referring here to the role and reality of social forms, groups, institutions, and associations. Human persons are situated and flourish in families. Elshtain always remembered this, and she refused to reduce the family to a mere contract or to import into the family the distorting language of political power.
The family is constitutive. It is not—again, in Professor Galston’s words—“simply instrumental to our social, or economic, or civic life.” Families, he has emphasized, “affect politics in two ways: by generating specific needs that the political system is challenged to meet; and by safeguarding a sphere that enjoys, or should enjoy, substantial immunity from the direct exercise of political power.” Families, then, play a structural role in promoting human flourishing and freedom by “limiting the reach of the state.” The family is “political” in the sense that it is one of the associations in which persons—and therefore citizens—are formed and in the sense that it helps to enforce a line that should constrain the temptation to what Galston calls “political totalism.”
Elshtain’s work reminds us that although the family is not “the mere creature of the state,” it does play a role in the ongoing enterprise of American constitutionalism as a “structural device” to preserve human freedom. Constitutionalism depends for its success on the existence and activities of the non-state authorities and associations in which persons are formed, and the family is one of these.
Today, most constitutions aim to protect authentic human freedom by entrenching human rights and putting them beyond the reach of ordinary politics. This is a good idea and a sound practice. But it is not enough. Human rights and human flourishing depend not only on enforceable constraints on government but also on the pluralistic structure of the social order, a structure in which, Elshtain has taught us, the family—neither entirely public nor entirely private—is both protector and protected.
Law is “of, by, and for” the people—for real human persons. The project of promoting persons’ flourishing—their real goods—will, necessarily, proceed on the basis of some “anthropological” assumptions about what it means to be human, about who and what people are, and about what they are made for. The project can only succeed if these assumptions are true.
One assumption that is true, and that the work of Jean Bethke Elshtain reinforces again and again, is that persons are social and situated. They live, thrive, and are formed in families. The law will do what it can to attend to the health of families. In so doing, though, the law—the state—must stay its hand, and have its hand stayed. And, as Elshtain reminded us, families have a role to play in staying, even as we should hope they might benefit from, the state’s hand.
Richard W. Garnett is Professor of Law and the Director of the Program on Church, State & Society at Notre Dame Law School.