A serial killer of children was executed in Iran, with the victims' family members participating in a slow and brutal process of stabbing, flogging, and hanging. Eugene Volokh embraces this approach:
I particularly like the involvement of the victims' relatives in the killing of the monster; I think that if he'd killed one of my relatives, I would have wanted to play a role in killing him. Also, though for many instances I would prefer less painful forms of execution, I am especially pleased that the killing — and, yes, I am happy to call it a killing, a perfectly proper term for a perfectly proper act — was a slow throttling, and was preceded by a flogging. . . . I am being perfectly serious, by the way. I like civilization, but some forms of savagery deserve to be met not just with cold, bloodless justice but with the deliberate infliction of pain, with cruel vengeance rather than with supposed humaneness or squeamishness. I think it slights the burning injustice of the murders, and the pain of the families, to react in any other way.
Putting the question of capital punishment to the side, is there any basis in Catholic legal theory for seeking to inflict pain in our punishment of criminals? According to the Compendium of the Social Doctrine of the Catholic Church (para. 402), the state "has the twofold responsibility to discourage behaviour that is harmful to human rights and the fundamental norms of civil life, and to repair, though the penal system, the disorder created by the criminal activity." And in correcting the offender, punishment is to encourage "the re-insertion of the condemned person into society," and foster "a justice that reconciles, a justice capable of restoring harmony in social relationships disrupted by the criminal act committed." (para. 403)
Given these objectives, is punishment to be as painless (physically, mentally, and spiritually) as possible, or in fulfilling its duty to discourage improper behavior, especially monstrous behavior, does pain have a place?
[MOJ readers may be interested in this disturbing story:]
Cleft lip abortion done 'in good faith'
James Meikle, health correspondent Thursday March 17, 2005 The Guardian
Doctors
and health officials will consider whether more guidance on abortions
is needed following the decision of the Crown Prosecution Service not
to prosecute two doctors who authorised a late abortion on a foetus
with a cleft lip and palate.
Jim
England, the chief crown prosecutor for West Mercia, said the doctors
believed, in good faith, that there was a substantial risk the child
would be seriously handicapped. "In these circumstances, I decided that
there was insufficient evidence for a realistic prospect of conviction
and that there should be no charges against either of the doctors," he
said.
The
inquiry began after a legal challenge over a previous decision by
police not to charge the doctors involved in the abortion carried out,
in 2001, on an unnamed woman from Herefordshire who was more than 24
weeks pregnant.
Joanna
Jepson, 28, now at St Michael's Church, Chester, but then a trainee
vicar, found out about the procedure in 2002 when studying abortion
statistics and suggested that it amounted to unlawful killing.
Yesterday
Ms Jepson said: "While I'm disappointed about the CPS's decision to
drop the case, I am pleased the case has raised the issue of late-term
abortion and the plight of disabled babies in late-term pregnancy. It
has exposed grave discrimination and I will be seeking legal advice."
She
said she might try to get clarification from the courts about whether
unborn children in the third trimester have got human rights and what
constituted "serious handicap".
She
might consider whether to re-open a judicial review of the first
decision not to prosecute. This was stayed after police decided to
conduct a second inquiry into the case, admitting the initial decision
was not based on a full investigation.
Ms
Jepson was born with a congenital jaw defect, uncorrected until her
teens, and her brother has Down's syndrome. Her lawyers had argued that
a cleft palate could not be considered as a severe disability.
The
prosecutor's decision coincides with heated debate over whether the
24-week limit on terminating pregnancy should be reduced. The 1967
Abortion Act allows for later termination if two doctors decide a child
would be seriously handicapped.
The
Department of Health would not comment on the case but the Royal
College of Obstetrics and Gynaecology said it knew the doctors "were
acting in good faith and within the current legislation," adding: "We
now need to consider whether further guidance is needed."
Ann
Furedi, chief executive of the abortion care organisation Bpas, said:
"This is very good news. We were very concerned at the prosecution
because this situation arose because somebody who had nothing to do
with the particular case took this case to court claiming an offence
had been committed."
She
added: "Rather than leap into court or the papers, we need to take
stock of the circumstance in which women and doctors make decisions
around abortion."
The Cleft Lip and Palate Association accepted the CPS verdict.
"Our
concern was that if it was beyond all doubt that all it was a cleft lip
and palate, then we could not understand why a decision to terminate
had been taken," said the chief executive, Gareth Davies.
Hereford County Hospital's management, where the abortion was performed, reported "many expressions of support" for staff.
Archbishop Chaput, of Denver, has an excellent op-ed in the Denver Post, explaining and defending the Church's position with respect to "conscience clauses", Catholic hospitals, and state-law mandates regarding the provision of contraception.
State Rep. Fran Coleman recently criticized the Catholic Church for "preaching" to her because, although she is Catholic, she represents people of all faiths. She took issue with Catholic resistance to portions of HB 1042, which would require hospitals in the state to provide emergency contraception for women who are raped. . . . At a minimum, Catholic hospitals - which provide their services based on moral and religious convictions about the dignity of the human person - should not be obligated to perform or refer for procedures which violate Catholic teaching. This doesn't involve "preaching" to anybody. It involves fidelity to principle and conscience - the same principles and conscience that animate Catholic service to the poor.
Rick Garnett has referred to my work on human rights a few times--in particular, to my book The Idea of Human Rights (Oxford 1998). I am now working on a new book on human rights, the (tentative) title of which is Human Rights as Morality, Human Rights as Law: Toward a Theory of Human Rights. The first chapter of the book will soon be published as an essay in a symposium issue of the Emory Law Journal. The abstract of the essay is below. If you would like to download and read the essay, click here and then download from SSRN. Abstract:
In the midst of the countless grotesque inhumanities of the twentieth
century, there is a heartening story: the emergence, in international
law, of the morality of human rights. The morality of human rights is
not new; in one or another version, the morality is very old. But the
emergence of the morality in international law, in the period since the
end of World War II, is a profoundly important development.
The
International Bill of Rights, as it is informally known, consists of
three documents: the Universal Declaration of Human Rights(UDHR), the
International Covenant on Civil and Political Rights, and the
International Covenant on Economic, Social, and Cultural Rights. The
UDHR refers, in its preamble, to "the inherent dignity . . . of all
members of the human family "and states, in Article 1, that "[a]ll
members of the human family are born free and equal in dignity and
rights . . . and should act towards one another in a spirit of
brotherhood." The two covenants each refer, in their preambles, to "the
inherent dignity . . . of all members of the human family" and to "the
inherent dignity of the human person--from which, the covenants
insist, "the equal and inalienable rights of all members of the human
family . . . derive." As the International Bill of Rights makes clear,
then, the fundamental conviction at the heart of the morality of human
rights is this: Each and every human being--each and every
member of the species Homo sapiens sapiens--has inherent dignity;
therefore, no one should deny that any human being has, or treat any
human being as if she lacks, inherent dignity. To say that all human
beings have inherent dignity is to say that one's dignity inheres in
nothing more particular than one's being human; it does not inhere, for
example, in one's "race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other
status." According to the morality of human rights, because every human
being has inherent dignity, no one should deny that any human being
has, or treat any human being as if she lacks, inherent dignity. The
conviction that every human being has inherent dignity--and that
therefore no one should deny that any human being has, or treat any
human being as if she lacks, inherent dignity--is so fundamental to
the morality of human rights that when I say, in this Essay, the
morality of human rights, I am referring to this conviction. An act
(whether of commission or omission) or a policy violates a human being,
according to the morality of human rights, if the rationale for the
action or policy denies that the human being has, or treats her as if
she lacks, inherent dignity. The morality of human rights holds that
every human being has inherent dignity and is therefore inviolable: not
to be violated, in the sense of "violate" just indicated.
The
morality of human rights responds to what is perhaps the most basic of
all moral questions: Which human beings are inviolable--all, some, or
none? Moreover, the morality of human rights is, for many secular
thinkers, problematic, because it is difficult--perhaps to the point
of impossible--to align the morality of human rights with one of the
secularist's reigning intellectual convictions, what Bernard Williams called
Nietzsche's thought: "[T]here is, not only no God, but no metaphysical
order of any kind . . . ."
In this Essay, I elaborate a
religious ground for the morality of human rights. I then pursue the
question whether there is a nonreligious (secular) ground for the
morality of human rights. Along the way, I comment critically on the
positions of John Finnis, Ronald Dworkin, Martha Nussbaum, and Richard
Rorty.
This Essay, which is being published in a symposium
issue of the Emory Law Journal, is part of a larger work in progress--a book--tentatively titled Human Rights as Morality, Human Rights as
Law: Toward a Theory of Human Rights.
Law professors Chip Lupu and Bob Tuttle -- two of the Nation's leading church-state scholars -- have posted a detailed analysis of the D.C. Circuit's opinion in the Notre Dame / Americorps case.
Father Johansen has just published an excellent article on the Terri Schiavo case. See here. Father Johansen will be discussing the Terri Schiavo at the University Faculty for Life annual meeting, which will be held at Ave Maria School of Law from June 3-5, 2005. I will post more details about that conference when the conference schedule is available. The UFL website, which is here, contains information about that conference.
Putnam was wrong about bowling and community, as anyone who knows one of the greatest films of all time can tell you. The Coen brothers' classic "The Big Lebowski" is a hymn to the community formed by The Dude, Walter and Donny, bowlers who ultimately triumph over The Nihilists ("We believe in NOTHING, Lebowski!".) The Dude, one of the authors of the Port Huron Statement ("the original, more radical one"), would have an iPod, but he would never bowl alone.
Bradley Lewis has two interesting posts (here and here) over at the Notre Dame Center for Ethics and Culture "Forum." This observation, in particular, seems right to me:
It seems to me that the basic problem here is to see politics in the categories of individualism and collectivism and to identify the Catholic tradition with collectivism. Individualism run amok (as sometimes seems to be the goal of many political "conservatives"--an odd thing on its face: what's "conservative" about that?) is often vicious, but so is collectivism. The question one should ask from the perspective of the Catholic intellectual tradition is what protects and promotes the common good, understanding the adherence to basic moral norms as itself partly constitutive of that very common good. This leaves a great deal for Catholic citizens and politicians to argue about when it comes to policy, without confusingly assimilating questions of doctrine to those of prudence.
The always eloquent if sometimes maddening Leon Wieseltier has an essay in the latest New Republic, called "God Again." Here is his report on the recent oral arguments in the Ten Commandments cases:
It was amusing to watch the conservatives at the lectern argue that the monument of the Ten Commandments on the grounds of the state capitol in Austin deserves the protection of the Court because it is the historical, and even the secular, symbol of a common heritage; and encouraging to discover that the justices were having none of this Christian casuistry. They seemed all to agree that the Decalogue is a religious expression, which plainly it is. None of them seemed especially horrified by this fact, at least in these settings. A reasonable distinction between the acknowledgment of religion by the state and the establishment of religion by the state was in the air, and none of the justices wished government to be hostile to religion. I will be surprised if the Court orders the slab of pious stone in Texas, or the framed commandments that hang in courthouses in Kentucky, removed.
And here are his concluding thoughts:
As an illustration of an acceptable display of the Ten Commandments on government property, some of the justices pointed to the figure of Moses on the marble frieze on the upper wall of their own courtroom, carved after pencil sketches by Cass Gilbert, the building's Beaux-Arts architect. (Moses appears also on the eastern pediment outside the building.) There the prophet stands, facing the bench, and holding in his hands the revealed law, inscribed in Hebrew and in gold. By a miracle of political convenience, only the second tablet appears, the one with the non-theological instructions. As I pondered this sculpture, I saw that it represents not a victory for the believers, but a defeat for them. For here is the son of Amram, fresh from his meeting with God at Sinai, newly in possession of the exclusive and immutable law, alongside Hammurabi and Menes and Solon and Confucius and Octavian. (And opposite Mohammed and Napoleon and John Marshall.) He is a lawgiver among lawgivers, no more. This is a fine iconographical program for the court, but it is decidedly not what the devout have in mind. On the south wall of America's most significant courtroom, the Ten Commandments have not only been celebrated, they have also been relativized. I reflected sweetly upon the inevitability with which the multiplicity of beliefs in an open society condemns absolutists to an exasperated existence. Pluralism protects them, but it also discomfits them. And their discomfiture is one of democracy's beauties.
