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Indictment and Deliberation in Late Modernity

GUSTAVO MAYA

Few writings today about law and moral theology rival Cathleen Kaveny’s mastery of both. In this she resembles John T. Noonan Jr., to whom she dedicates Prophecy without Contempt. Noonan has made a career of carrying out historical inquiry on matters of great religious, ethical, and legal importance, and in so doing he has shed light on our own, often contentious, theological and political debates. Kaveny, in my view, is up to something similar. In Prophecy without Contempt, Kaveny traces the history of the jeremiad in the U.S. to help us locate the limits of prophetic indictment in political debate. On her account, the rhetorical form of the jeremiad has been separated from the original covenantal context within which it developed. Rather than recalling members of the community to faithful adherence to its covenant with God, the jeremiad gradually became a means of denouncing others with whom one disagrees on morally and politically controversial matters. One of the problems with this development, according to Kaveny, is that prophetic indictment of the kind expressed by the jeremiad is strong medicine. She refers to it as moral chemotherapy. Its overuse destroys the body politic and blocks appeal to our normal modes of practical deliberation. Prophetic indictment ought to be used sparingly, and Kaveny develops criteria to help guide our use. This is a welcome contribution at a moment when thoughtful political deliberation is on the decline, derailed by our overheated culture wars. Much of what Kaveny has to say is illuminating and persuasive. In what follows, I want to identify some issues relating to one of the central distinctions of the book: prophetic indictment versus practical deliberation.

At various moments throughout the argument, the two strategies appear to be mutually exclusive. One either engages in prophetic indictment or practical deliberation. If one attempts to use both, prophetic indictment, like a strong spice, inevitably overpowers the whole so that the outcome is more indictment than deliberation. What’s more, these strategies can congeal into identities. Prophets engage in prophetic indictment, deliberators in practical deliberation. Often prophets and deliberators have difficulty understanding and talking to one another, says Kaveny. I wonder, however, if these strategies and identities can be so cleanly distinguished and if they are necessarily at odds. Take, for example, Martin Luther King’s “Letter From a Birmingham Jail.” Kaveny rightly holds King up as an exemplar of rhetorical and political excellence. But doesn’t King make use of both strategies? On my reading, King’s prophetic indictment is the result of a process of practical deliberation. Evidence of injustice was gathered, negotiations were had, and when negotiations failed the civil rights protesters prepared themselves for non-violent direct action. Direct action created tension in order to make visible injustices that normally lay hidden from view, though often in plain sight for those with eyes to see. In jail for his civil disobedience, King’s letter was a response to a group of white Protestant ministers opposed to his tactics, though they professed to be for his cause. The letter provided an account of his and others’ deliberations.

It seems to me that King’s example demonstrates the possibility of prophetic indictment and practical deliberation working together. I don’t think Kaveny would disagree. At other moments in her argument, she appears to assume as much. She tells us that prophetic indictment can awaken us from our moral slumber in ways that actually contribute to our practical deliberations. This possibility is also implicit in her application of just war criteria to prophetic indictment, what Kaveny calls ‘just prophecy theory.’ Whereas just war criteria are a means of evaluating the justice of the use of force by one nation against another, when applied to prophetic discourse the criteria aid the kind of moral deliberation, characteristic of the Aristotelian and Thomistic traditions, Kaveny commends in chapter 6. Indeed, Prophecy without Contempt is itself moral deliberation about prophetic indictment, with the aim of influencing the deliberations of would-be prophets as they participate in politics.

Kaveny’s argument thus relies on a tighter connection between the two categories than she acknowledges. This is important because, in drawing too sharp a distinction between these categories, Kaveny can be misread as unmooring prophetic indictment from deliberation. I don’t think that is the proper interpretation of her argument. The problem occurs, however, when communicative strategies become identities, so that those who indict become prophets and those who deliberate become deliberators. Because Prophecy without Contempt is a work of moral deliberation and Kaveny, at times, appears to identify as a deliberator, the deliberators seem to come out ahead. Allowing these modes of communication to congeal into mutually exclusive identities also has the unintended effect of disconnecting prophets from their practical deliberations, as would be the case with King. The opposition of indictment and deliberation, of prophet and deliberator, probably made much more sense in the original covenantal context of the jeremiad. If one takes oneself to be speaking for God, as colonial preachers did, then it’s understandable if one were led to believe that human deliberation played no role in the process. In such contexts, indictment and deliberation operated separately. But as the basis of our national community began to secularize and shift from a covenant with God to the Declaration of Independence and the U.S. Constitution, deliberation played a more prominent role. Kaveny narrates this story of secularization and shifting sources but doesn’t spell out how this affected the competing modes of discourse that figure so centrally to her story. Do the different bases of values and norms entail differing relations with indictment and deliberation? One would think so. Perhaps Kaveny can clarify for us how the secularized covenant alters the balance between prophecy and deliberation.

If this is all so, then perhaps Kaveny should have loosened up the sharp dualism between prophetic indictment and practical deliberation. She’s right to worry about the disingenuous use of one strategy under the guise of the other. She’s also right to highlight the dangers and harms caused by over-reliance on prophetic indictment. Chemotherapy for a cold would be foolish and, potentially, deadly. Prophecy should be used selectively. Kaveny forces us to think more critically about these issues, and for that we’re all in her debt. But I don’t think indictment and deliberation are as opposed as they sometime appear to be in the book. At their best, they inform and support each other. Prophetic indictment can shake us from our conformity. It can help us see what we could not see before. Practical deliberation with its distinction-drawing and weighing of considerations can help us provide reasons for the judgments to which we arrive. These two have often worked together in our most successful movements for “liberty and justice for all,” whether abolition, women’s suffrage, or civil rights, to name a few.


Gustavo Maya is a PhD candidate at Princeton University in the program in Religion, Ethics and Politics. Prior to Princeton, Maya received a B.A. from Fresno Pacific University, an M.Div. from Princeton Theological Seminary, and a J.D. from U.C. Berkeley. His dissertation examines Cesar Chavez and the farm worker movements he helped to galvanize in the late 20th century.

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