Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, November 10, 2004

The Possibility of a Christian Jurisprudence

In an earlier post Rick reported on a Christian Jurisprudence project that he is participating in through Emory's Law and Religion Program.  In that post, he said:  "Several of the participating scholars, though (Professor Milner Ball, in particular), expressed doubts about the very possibility of "Christian Jurisprudence" -- about, as I understood it, both the possibility of "jurisprudence" being "Christian" and about the possibility that "Christianity" contains "jurisprudence.""

Rick:  Could you briefly outline the case against the possiblity of jurisprudence being Christian and the possibility that Christianity contains a jurisprudence?

Thank you, Michael S.

The Death Penalty

Michael links below to an article, which appears in a recent issue of America, about the death penalty.  The author concludes -- after setting out the relevant passages from the Catechism -- that "all American Catholics who accept Church teaching must be opposed to the death penalty as it is used in the United States today" and that "it is simply not possible to be a faithful Catholic and support the use of the death penalty in the United States."  However -- and this is, I think, interesting -- the author grounds this conclusion not on arguments about whether or not (in the Catechism's terms) "non-lethal means are sufficient to defend and protect people's safety from the aggressor" but on the author's characterization of the process through which capital sentences are collaterally reviewed (or not) in federal courts.  In the author's view, the current system of review -- including the courts' procedural-bar doctrines, and the limitations imposed by law on successive petitions -- does not (in the Catechism's words) "guarantee a full determination of the accused party's identity and responsibility."

In response to Michael's question (below):  I oppose the death penalty (though I remain troubled, or perhaps just confused, by the way the Catechism handles the issue -- treating it, it seems to me, more as a self-defense issue than a punishment issue).  And, I share many of the concerns expressed by the author of the piece to which Michael links about our death-penalty-review process.  That said, I believe that the author overstates his case in contending that every faithful Catholic must accept his characterization of the capital-sentence-review process and his conclusion that the process does not "guarantee a full determination of the accused party's identification and responsibility." 

I do not understand the Catechism to be stating that no Catholic can support a criminal-sentencing system that is imperfect.  Nor would I think it within the competence of the Church and its teachers to determine definitively whether a particular collateral-review regime "guarantee[d] [such a] determination."  This is -- to respond to Michael's invitation -- a "prudential" judgment, it seems to me.  (I am, again, open to the possibility that the death penalty is unjustifiable and unsupportable in the United States for other reasons.)

Rick   

Tuesday, November 9, 2004

The Catechism, the Death Penalty, and the United States

Can one who accepts the Roman Catholic Catechism's position on the death penalty plausibly conclude that imposition of the death penalty is, or can be, morally legitimate in the United States?  For a negative answer, see this article  from the November 1st issue of AMERICA, titled No to the Death Penalty:  The Requirements the Catholic Catechism Sets for Use of the Death Penalty Are Not Met in the United States.  If the author is right, there is no room for a "prudential" judgment that (1) accepts the Catechism's position but (2) concludes that imposition of the death penalty is, or can be, morally legitimate in the United States.  What do you think?

Michael P.

McConnell for Chief Justice

Stuart Buck recently voiced his support of Michael McConnell for Chief Justice when the current Chief resigns. Any reaction?

Marty on the War, Cost, and Choices

I appreciate Michael's posting of Martin Marty's recent "Sightings" discussion.  I also appreciate Professor Marty's willingness to acknowledge that "[a]dmittedly, national security is an urgent issue and demands plenty of 'investing,' and there were and are 'values and morals' issues on the Iraqi scene.  But when it comes to all 'investing,' we have to ask which values-and-morals causes must suffer at the expense of those we choose and support with our votes."  Often, arguments to the effect that "the money spent in Iraq could be [better] spent on ____" seem to assume the premise that the money being spent in Iraq is being spent to no moral or beneficial purpose.  As Marty recognizes, though, we're not faced at present with a "waste money on nothing or instead feed the poor" choice, but with a "spend money on security and stability [and, I would argue, on the spreading of democracy and the liberation of the oppressed], or spend more domestically" choice.  And, as I hope Professor Marty would concede, reasonable and faithful people can disagree about this choice.  (It is worth noting, also, that Professor Marty's essay assumes that the money being spent on the present wars in Afghanistan and Iraq would be available for teachers, college scholarships, etc., even if we were not at war.  This is, in my judgment, a mistaken assumption; but for the wars, I suspect the government would be spending less, rather than engaging in heavy deficit spending).

Rick

More from Martin Marty

[When I taught at Northwestern University Law School, I was, for a while, a member of a reading group at the University of Chicago Divinity School that included Martin Marty, David Tracy, and Robin Lovin.  What a privilege!  I often find that I want to share Martin Marty's reflections with others.  Hence, this posting.]

Sightings  11/8/04

Iraq Costs
-- Martin E. Marty

Monday Sightings chose to do little sighting of religious issues in the campaign this year.  But not for lack of topics.  Commentators tell us that citizens lined up "faith-basedly" in the recent election to vote their "values and morals" -- mainly the anti-gay marriage ones, they concluded.  Other citizens, in both parties, sputtered in frustration, trying to get some motion going on issues of war, peace, and justice.

Now realism will begin to soak in, as it would have also for the supporters of the losing candidate.  He would have inherited the burden of the Iraq war, with little vision of how to lift it.  Realists mention the deaths of an estimated 100,000 Iraqi people and over 1,100 sacrificed American lives.  Many are making use of data served up by the National Priorities Project (NPP) website, www.costofwar.com.  The National Priorities Project feeds figures that, according to critics of the way the war began and is being prosecuted, should fit somewhere into the nation's "values and morals" calculus.  Exit-pollers say it evidently did not rate highly.

Consult the running clock and the spinning adding machine that appear on the NPP web site and you will find this column to now be out of date.  When I wrote it Saturday, the war had cost $143,785,479,679.00.  Now cut that figure down to bite size.  My little town of Riverside has 8,895 people.  Our share of the war cost thus far is $6,550,556.36.

Suppose our "faith-based values and morals" had led us to put such funds to work in other areas.  Pre-school?  The U.S. could have allotted 19,044,076 for children to attend a year of Head Start.  Health care is a religious justice issue.  For the cost of the war so far, we could have insured 86,047,783 children nationwide for a year.  That would translate to 3,225 tots in Riverside (if we had that many children here).

For the current cost of the war, the U.S. could have hired 2,490,336 new teachers and paid them for a year.  This would give my little Illinois suburb a super-abundance of 113 new teachers next year, and, we presume, roughly the same amount for each year of this war, which has no end in sight. 

We might also like to make higher education available for more Americans.  Had we not entered the war in Iraq, we'd have been able to send 6,970,423 people to four-year colleges and paid for all four years.  There'd be 1,123 such scholarships in my burg.  Or we could have built 1,294,697 new housing units, 59 of them in Riverside.

Looking globally, as churches are called to do, the cost of the war could have funded all global anti-hunger efforts for five years, or all AIDS programs on the African continent for 14 years, or we could have immunized every child in the world for 47 years. 

Admittedly, national security is an urgent issue and demands plenty of "investing," and there were and are "values and morals" issues on the Iraqi scene.  But when it comes to all "investing," we have to ask which values-and-morals causes must suffer at the expense of those we choose and support with our votes.  We are likely to have to do that asking of ourselves for the years of the Iraqi war to come.

The NPP dollars-clock says that by now the cost of the Iraq war to each American household has been $2043.00.  Our great grandchildren can take care of that, while we vote on issues more urgent than war.

Martin E. Marty's biography, current projects, upcoming events, publications, and contact information can be found at www.illuminos.com.

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Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.

Monday, November 8, 2004

Is "Christian Jurisprudence" Possible?

I participated this weekend in the kick-off session of a new research project sponsored by the Law and Religion Program at the Emory School of Law.  The project involves several dozen legal scholars, theologians, and ethicists from the Roman Catholic, Protestant, and Orthodox traditions, and aims at producing a body of work that "retrieves" and "re-engages" "Christian Jurisprudence."  Several of the participating scholars, though (Professor Milner Ball, in particular), expressed doubts about the very possibility of "Christian Jurisprudence" -- about, as I understood it, both the possibility of "jurisprudence" being "Christian" and about the possibility that "Christianity" contains "jurisprudence" -- and these doubts prompted fascinating discussions that, I expect, will continue throughout the project's life.   

Given my own involvement in a blog "dedicated to the development of Catholic legal theory," I suppose I have a stake of sorts in the possibility of "Christian Jurisprudence."  Any thoughts?

Rick

The Second Part of "Nothing is Lost"

Not suprisingly, several responses to Professor Outka's "nothing is lost" argument focus on the first prong, the notion that the innocent person would die anyway.  While that is the more interesting side of the question, it is worth observing that the second prong is hardly unassailable either.  The second part of the "nothing is lost" argument is that other innocent life will be saved." 

I'm not an expert on the state of stem-cell research, but my understanding from what I have read is that the best we can say is that further stem-cell research offers the potential to save or improve lives.  Many of the values of the research discussed - faciliating drug testing, aiding in treatment in Parkinsons, arthritis and burns - while very beneficial, do not rise to the level of saving an innocent life and many of the benefits discussed are, as of now, possibilities only. 

Even if one is willing to accept the nothing is lost argument at its tightest - an innocent life lost for an innocent life saved - do we really want to stretch the argument to say that the "benefit" side of the equation is satisfied by something that may (or may not) improve (rather than save) the lives of some in the future.

Susan

Sunday, November 7, 2004

"Nothing is Lost" -- Really?

In defending embryonic stem cell research, Professor Outka (see Michael's post) embraces the "nothing is lost" argument, under which the intentional killing of an innocent life is justified if the innocent will die in any case, and other innocent life will be saved. This defense encompasses not just research on embryos, of course, but also research on concentration camp inmates, death row prisoners, even terminally ill patients. Thankfully, Professor Outka resists the argument's full impact, applying it only to anencephalic infants and embryos. The key, for Outka's analysis, is the embryo's "perpetual potentiality." In light of this status, the "nothing is lost" argument can carry the day with minimal moral fallout.

I certainly prefer Outka's grudging and narrow concession on life's sanctity to the across-the-board utilitarian exuberance of folks like Peter Singer. But there is still a disturbing cost-benefit mindset that underlies his analysis, and I'm not sure he faces it in all its starkness.

First, what precisely is the morally relevant object of the frozen embryo's potentiality? The embryo is not potential life -- it is life, albeit static and (relatively) simple. So what trait does the embryo lack that would make the difference for Outka? He mentions self-awareness a lot -- is self-awareness what makes life sacred? Why? Where is the line that lets us treat the frozen embryo as an instrument, rather than as an end in itself? (The "nothing is lost" principle can't circumvent this line of inquiry unless we're willing to defend experiments on death row inmates.) Outka tries to make us believe that we're not conceding much on the moral front under his approach, but it seems we're still blurring the fundamental boundary afforded by treating all human life as inherently (not instrumentally) valuable.

Second, Outka laments the state of affairs under which "excess embryos" are a given. But if he really believes that we, as a society, should do what we can to alleviate this problem, how can he propose that we harness our medical advancements to the continuation of the problem? If embryonic research is embraced by society as the path to ending much human suffering, the embryos churned out in reproductive therapy will no longer be viewed as "excess," but rather as a key pipeline of human progress.

Rob

Human Life: Location-Dependent?

Fr. Robert Araujo, S.J., a law prof at Gonzaga, offers these thoughts in response to Michael Perry's posting of the Outka and Cadley pieces on embryonic stem cell research:

First of all, there are life advocates who are quite aware of the political, social, economic, legal, and moral issues that are at stake. I am intrigued by the language that uses formulations like "potential life", "living cells", and "the need to help innocent and suffering people." I was taken by Ms. Cadley's reference to scripture, including the Psalms. She apparently has not yet reached Psalm 139, but if she has, she did not indicate this. I may be viewed as one of those ideologues who promotes the "theology of the few." But, it is essential for anyone who enters the debate on whether to ban or endorse embryonic stem cell research to be mindful of the nature of the subject that is at the core of the debate.

The scientific methodology involved with embryonic stem cell research is indeed complex regardless of whether the source of the stem cells is from aborted children (some would argue fetuses or tissue), in vitro fertilized embryos, or cloned embryos. But the reality of what the researcher is about to take apart is quite simple: it is a human life. It is not a cell or cluster of cells, it is not a potential human being, it is something that you and I were in the continuum of our unique human development. Our lives started and continued. The lives of the "donors" of stem cells have also started. Why is it that their lives may be sacrificed? Many advocates who support embryonic stem cell research do not identify and do not discuss this utilitarian problem, but there it is staring us in the face.

There is often heard from supporters of stem cell research that the embryo (it does not matter if the embryo was formed by cloning or by in vitro fertilization) will never be implanted in a womb; therefore, one need not be concerned about the "potential" human life that will be sacrificed in medical research that may help lives that now exist. This argument from the geography of the embryo's location must fail. A similar rationale was used in Dred Scot. But Dred Scot was always who he was regardless of whether he was in a slave state or a free state. A human embryo is always a unique human regardless of whether it is in a Petrie dish, a cryogenic preservation unit, or a womb. Its geographic location does not enhance or detract from its fundamental nature as a human life in the early stages of life's continuum.

Another important point to make about the nature of the embryo and the stem cells that are constitutive of each embryo is this: the removal of the stem cells necessitated by the research to which Outka and Cadley refer inevitably and irrevocably leads to the death of the embryo. I never cared much for Monty Python skits, but one sticks out in my mind that illustrates well the grave moral concerns associated with embryonic stem cell research as it currently exists: one day an official from the organ donor bank visits a residence of a prospective donor and inquires whether Ms. Smith is home; indeed she is and she answers the door. The organ donor bank representative then says, "Ah, good, we're here for your liver!" But, Ms. Smith protests, and a robust debate ensues. Finally, the official says, "Well, there must be another reason why we can't have your liver?" Ms. Smith responds in the affirmative and says, "Yes, I'm using it!" The same goes for the embryo whose stem cells are being targeted for extraction: the embryo needs its stem cells because its life is dependent on them, too.