Thanks to Rick for his posting on the Human Rights Committee action on the KL v. Peru matter. It is not a case as we understand them. Let me try to address a few of Rick’s important questions. The Committee was created by the 1966 International Covenant on Civil and Political Rights. It has a variety of functions that are spelled out in the instrument. One duty it has is to evaluate periodic reports that are filed by countries that are parties to the Covenant under Article 40 of the Covenant. That is pretty straight forward; however, the product of the evaluation is not particularly satisfying in many cases. In recent years, even some progressive countries have disagreed with the Committee’s conclusions about the comments they received on their compliance reports from the Committee.
The more interesting and less clear duty the Committee has is under Articles 41 and 42 of the Covenant. It can receive a “declaration” from one country that is a party to the Covenant that another country that is also a party is not fulfilling its obligations under the Covenant. I have tried to ascertain if that is what happened in the matter to which Rick refers, but I have not been successful. The Center for Reproductive Rights website and the UN websites are unhelpful in answering these basic questions. Does that tell me something? Yes. So I think that is what has happened: another country did report the matter of Peru and KL to the Committee. In any event, the Committee (or an ad hoc “Conciliation Commission” that the Committee can appoint under Article 42) investigates the complaint with the right of the “parties” to supply information. The Committee is not supposed to take action unless it has determined that “all available domestic remedies have been invoked and exhausted” and “in conformity with recognized principles of international law.” “Friendly resolution” of the matter is encouraged. The Committee then submits a report to the State parties concerned. I think that is what happened—a report was issued. Not a ruling. Not a decision.
Is this type of report “law”? I don’t think so, but after a while these reports pile up and they get quoted. When things get quoted time after time, they leave an impression. The Center for Reproductive Rights is aware of this phenomenon. After a while, they suggest that these reports reflect customary law.
My written presentation at the Villanova John Courtney Murray Conference this past September will offer some explanation of the process. It also offers an account of some of the methods used by the Center for Reproductive Rights in commandeering international bodies to further its political agenda of “reproductive rights” (including abortion) which the Center has concluded are “human rights.” That is hard to accept when one considers the implications of the “right to life” article in the International Covenant on Civil and Political Rights.
This brings me to Rick’s second question. I hope I am not dodging it here by saying this, but these folks—the Committee and the Center for Reproductive Rights—have a lot to learn about core principles of international law and authentic human rights. Having said that, they understand well a system, and they are exploiting it. In the meantime, human rights suffer. I fear they will continue to suffer under the irony of promoting “human rights” that exist only through skewed interpretations and clever political manipulations and not through sound legal interpretation and application of the rule of law.RJA sj
[I'll wait until Patrick has responded--he has told me he will be responding--and then I'll reply to Rick and Patrick on the bishops and the death penalty. Meanwhile, I thought MOJ-readers would be interested in this item:]
National Catholic Reporter November 18, 2005
Marriage between homosexuals is good for marriage
By ROSEMARY RADFORD RUETHER
In the current culture wars, we are constantly told by conservatives
that gay marriage would be a disaster for the ideal and institution of
(heterosexual) marriage. James Dobson, founder of the conservative evangelical
group Focus on the Family, has opined, “Barring a miracle, the family as
it has been known for more than five millennia will crumble, presaging the fall
of Western civilization itself.” Pope John Paul II judged same-sex unions
as “degrading” marriage. The Vatican declaration “Considerations
Regarding Proposals to Give Legal Recognition to Unions between Homosexual
Persons” (2004) stated, “Legal recognition of homosexual unions
obscure basic values which belong to the common inheritance of
mankind.”
But are these warnings that gay marriage poses a threat to marriage
true? Do they make either logical or empirical sense? At a time when fewer
Americans are marrying at all and many are divorcing, at a time when a third of
American households consist in single people, why is it a threat to marriage
that homosexual people are embracing marriage? Shouldn’t we find the large
numbers of people who are unmarried, often raising children as single parents,
the prime threat to marriage? What is remarkable about the current movement for
marriage among gay people is that they are asking for basically the same
institution and ideals of marriage as heterosexuals currently enjoy. They want
a publicly recognized sealing of a commitment to a lifelong monogamous union
with another person with whom they want to share their lives, an institution
that also carries with it certain legal rights, such as shared pensions and
health plans. Why is this a threat to marriage?
If marriage is not allowed for gay people, what is the alternative that
conservative Christians are demanding ? For some, gay people shouldn’t
exist at all; they can and should be converted to heterosexuality. But few
medical and psychological experts now share this view. Sexual orientation has
proved to be deeply embedded and not easily changed. Another alternative is
lifelong celibacy. But celibacy has generally been recognized in the Christian
tradition to be a special gift, not given to most people. Why should all gay
people be assumed to have this gift? If conservative Christians demand that
gays remain unmarried, but they are not capable of celibacy, what are we
saying? That they should be promiscuous, that they should have uncommitted
relations?
Two evangelical writers, Letha Scanzoni, author of the 1978 book Is
the Homosexual My Neighbor?, and David Myers, professor of psychology at
Hope College in Holland, Mich., have published a book this year arguing for gay
marriage from a Christian evangelical perspective, What God has Joined
Together: A Christian Case for Gay Marriage. In this book they argue that
marriage, in the sense of a permanent, lifelong, egalitarian, monogamous
relationship between two persons for mutual care and child raising, is a
fundamental human good. Couples in such relations are healthier and happier.
Children are best raised in a stable two-parent household. If this is good for
heterosexuals, then it is also good for homosexuals. Gay marriage does not
destroy marriage, but rather extends this same good way of life to
homosexuals.
The argument that opening marriage to gay people is a slippery slope
that will quickly lead to promiscuity, group marriage, polygamy and incest
makes no sense. Gay people and heterosexuals have both been promiscuous and
pursued various extramarital relations. The gay marriage movement is precisely
a rejection of casual and plural relations. It is an option for a committed,
monogamous relationship with one other beloved person for the rest of
one’s life. One of the remarkable things about the recent opening of
marriage to homosexuals, briefly in San Francisco and then in Boston, is the
number of gay people who came forward with great joy to seal officially what in
many cases had already been a committed relationship of 10, 20 or 30 years. Are
gay people “capable” of committed monogamous relationships? Obviously
so, at least as much as heterosexuals. What they are asking is for this
committed, monogamous relationship to be legally recognized as marriage.
Ms. Scanzoni and Dr. Meyers argue that accepting gay marriage, far from
threatening marriage, will confirm and strengthen the ideal of marriage itself
for all of us, heterosexuals and homosexuals. Gay marriage can be a positive
example for the many people in our society who hesitate and fear to embrace a
permanent monogamous and lifelong relationship, with its struggles as well as
its joys. Gay marriage should be embraced by Christians as pro-marriage, not
anti-marriage. In Ms. Scanzoni and Dr. Meyers’ words, “It can prompt
heterosexual men and women to appreciate marriage in a new way.”
Rosemary Radford Ruether is the Carpenter Professor of Feminist Theology
at the Graduate Theological Union in Berkeley, Calif.
Thanks much to Michael and Patrick for weighing in on the Bishops' latest statement re: capital punishment. As for Michael's conclusion that Patrick and I are down to the Bishops, 1-0 . . . I'm seeking a reply on the goal-scoring play.
Michael writes:
The retributive theory theory of punishment tells us whom we may punish (the guilty, not the innocent), but it does *not* tell us what punishment is justified. The retributive theory of punishment does not tell us, for example, that one who is convicted of torturing and then killing his victim may be tortured and then executed (by the state). Nor does it tell us that one who is guilty of murdering his victim may be executed. If one wants to justify executing a criminal, one must look beyond the retributive theory of punishment.
I disagree. The retributive theory speaks both to the distribution of punishment and to the character / amount of punishment. That is, (a) no one may be punished who does not deserve it, and (b) no one may be punishmed more than he or she deserves. Of course, that one deserves to be punished does not necessarily mean (though I think Kant thought otherwise) that one must be punished, or that one must be punished to the full extent of one's desert. But, I agree with Michael that there could well be criminals who deserve to be executed, and whom it might -- under some circumstances -- be justifiable to execute, but whom it would nevertheless be immoral to execute given our circumstances.
Michael continues:
According to the bishops' statement on the death penalty, there is no justification for executing a criminal, no matter how heinous his crime. Now, one may disagree with the bishops, but neither Rick nor Patrick has explained where the bishops' argument in this regard misfires. Indeed, neither has set forth for MOJ-readers the bishops' argument.
As I understand the statement, the bishops make their judgment -- i.e., "there is no justification for executing a criminal, no matter how heinous his crime" -- turn on the claim that (a) the death penalty does not deter and (b) there are non-lethal ways of "protecting society" from convicted murders. This suggests (I think) that the moral permissibilty of execution turns on such consequentialist concerns, and I do not think that it does.
A little later, Michael says:
Patrick then writes: " ... even John Paul II never said that the death penalty is always and everywhere disproportionate." I read John Paul very differently. But more importantly, E. Christian Brugger (like his mentor, John Finnis) reads him differently. See Brugger's Capital Punishment and Roman Catholic Moral Tradition (Notre Dame 2003).
Lord knows my friend John Finnis's brain is much, much bigger than mine. But, I do not think John Paul can be read as having said (even if he believed) that the death penalty is always and everywhere disproportionate. John Finnis believes, I think, that the death penalty -- insofar as it constitutes "intentional killing" -- is never permissible. My own, less-schooled view (for now) is that some intentional killings are, or can be, permissible.
Michael writes, responding to Patrick:
But that "fault is a necessary condition and proper basis of punishment" doesn't help us decide whether capital punishment is ever justifiable. Yes, only the guilty may be punished. That is not the contested issue. The contested issue--the question-in-chief--is whether the guilty may ever be executed.
Right. And, what are the reasons given for the bishops' conclusion (actually, I don't think this is their conclusion!) that the "guilty may [never] be executed"? It seems to me that the document should proceed in this way: (a) Even convicted murderers retain their human dignity; (b) the notion of human dignity constrains what may be done by the public authority to convicted murders; (c) punishments of criminals is justified, in accord with principles of retributive justice; and (d) the death penalty is morally permissible only if (i) it is consistent with principles of retributive justice and (ii) does not violate the dignity of the criminal. In my view, the bishops mistakenly suggest that the question lurking in (d) should be resolved by considering questions of deterrence and incapacitation.
I say, the Bishops' goal is called back. Rick and Patrick shoot . . . they score!
I would be interested in knowing the reactions of Rick, Michael, Patrick, and others to a few propositions concerning the death penalty:
1. Human life is a preeminent value, even when the life is not innocent (and no matter how un-innocent the life is). Therefore no one (including the state) should take human life for the purpose of ending the life. (The only justifications for killing are self-defense, defense of others, and analogous situations such as defensive war, where the intent is defense not killing.)
2. No life of any human person may reduced in its value to any act that the person has committed (however heinous). No act can exhaust the value of the actor's life. The death penalty logically reduces the value of the offender's life to one act he has committed.
3. Any capital punishment statute that makes the imposition of the penalty turn (in whole or in part) on the unlikelihood of the offender's rehabilitation -- as I believe every or almost every such statute in America does (correct me if I'm wrong) -- contravenes Christian notions of the possibility of redemption.
Do any of these propositions go wrong, and if so how? (I should say that I think all of them have power, although in ascending order -- although I agree with #1, I can see answers to it; #3 seems to me unanswerable; and I'd be interested in people's thoughts about #2.)
Tom
CLARIFICATION: There are probably statutory schemes, and there are certainly individual instances of capital punishment, in which imposition of the penalty does not turn on the question about likely rehabiliation in #3 above. But if the question about rehabilitation is submitted to the jury, proposition #3 would be that such submission as a basis for considering capital punishment is irreconilable with fundamentals of Christian teaching. That's the proposition I see as unanswerable.
No plausible construal of any transnational or international human right entitles a woman to an abortion in circumstances where the pregnancy does not threaten either her life or her physical health. Notice that in the case Rick called to our attention, a woman already had a right to a *therapeutic* abortion under *Peruvian* law. The decision concerned the obligations of a state (only) in such circumstances. As the press release noted: "Abortion is legal in Peru for therapeutic
reasons; however, because Peru failed to adopt clear regulations, women
whose health is endangered by such pregnancies are left at the mercy of
public officials. The petitioner in the case was denied access to the
procedure by the hospital’s director, and was compelled to carry the
fetus to term. She was forced to breast-feed for the four days the
infant survived."
Rick Garnett & Patrick Brennan, whom I love, are deeply confused about retribution and the bishops' recent statement on the death penalty.
The retributive theory theory of punishment tells us whom we may punish (the guilty, not the innocent), but it does *not* tell us what punishment is justified. The retributive theory of punishment does not tell us, for example, that one who is convicted of torturing and then killing his victim may be tortured and then executed (by the state). Nor does it tell us that one who is guilty of murdering his victim may be executed. If one wants to justify executing a criminal, one must look beyond the retributive theory of punishment.
According to the bishops' statement on the death penalty, there is no justification for executing a criminal, no matter how heinous his crime. Now, one may disagree with the bishops, but neither Rick nor Patrick has explained where the bishops' argument in this regard misfires. Indeed, neither has set forth for MOJ-readers the bishops' argument.
Patrick writes: "The proper question, from this angle, is whether the penalty of death is
disproportionte to a particular convict's culpability." But this is not the proper question for one who concludes, as the bishops do, that there is no justification for executing a criminal, no matter how heinous his crime.
Patrick then writes: " ... even John Paul
II never said that the death penalty is always and everywhere
disproportionate." I read John Paul very differently. But more importantly, E. Christian Brugger (like his mentor, John Finnis) reads him differently. See Brugger's Capital Punishment and Roman Catholic Moral Tradition (Notre Dame 2003).
Patrick then writes: "The Bishops' . . . focus on the
non-retributive grounds of punishment obscure the Church's teaching
that fault is (a necessary condition) and proper basis of punishment." But that "fault is a necessary condition and proper basis of punishment" doesn't help us decide whether capital punishment is ever justifiable. Yes, only the guilty may be punished. That is not the contested issue. The contested issue--the question-in-chief--is whether the guilty may ever be executed.
If you look at the Catechism of the Catholic Church, you'll find only a self-defense justification for some instances of capital punishment. But, as Brugger explains, capital punishment is *never* an instance of self-defense, because capital punishment is *always* the intentional killing of a human being; self-defense, by contrast, is *never* the intentional killing of a human being, even though some instances of self-defense foreseeably kill a human being. The Doctrine of Double Effect, etc.
The Center for Reproductive Rights is pleased. According to this press release, "the United Nations Human Rights Committee (UNHRC) decided its first abortion case, KL v. Peru. The decision establishes that denying access to legal abortion violates women’s most basic human rights. This is the first time an international human rights body has held a government accountable for failing to ensure access to legal abortion services. . . . The ruling specifically establishes violations to the right to be free from cruel, inhumane, and degrading treatment, privacy, special protection of the rights of a minor. It orders the Peruvian government to provide Llontoy with reparations, and to adopt the necessary regulations to guarantee access to legal abortion."
I'd appreciate comment from those MOJ-ers (and others) who are expert on these matters to inform us (a) whether this "ruling" is really a ruling, or more of an "opinion letter" (which was sought precisely to lay the groundwork for a later "ruling"); and (b) why the international-human-rights enterprise, as currently conducted, deserves Catholics' respect and endorsement.
Thanks to Rick for the prod to clarify my view of the Bishops' statements "A Culture of Life and the Penalty of Death." I didn't mean to communicate "enthusiam" for the document; indeed, I am in complete agreement with some of Rick's criticisms/reservations, and these lead me to give the document a grade of B- on a generous day. It was my disappointment with much of the rest of what the Bishops did recently in D.C. that led me to give thanks for their continuing, if in a clumsy and analytically-challenged way, their important work of opposing capital punishment in the United States. The curious thing about the U.S. Bishops today is that, with respect to so many issues, they're so slow to be Bishops. Take the recent meeting as a sufficient example. The liturgy should be at the top of their list of things to do right, but instead the annual meeting showed yet more unwillingess to move decisively to bring better liturgical texts into use. (One doesn't have to agree with me on the merits of the proposed translations to conclude that the "with all deliberate speed" approach to the liturty would leave our forebears rubbing their sacramental eyes). Similarly, the Bishops have decided to meet with politicians in aid of their forthcoming guidelines regarding the scandal to the faithful that prevents a minister from communicating politicians pursuing certain public courses. One would have thought that the Bishops would have come up with guidelines and then shared them with those whom they are intended for; instead, the Bishops are conculting non-expert laity on the matter of safeguarding the sacrament and the ecclesial communion. The Bishops' particular forms of embrace of lay ministry are another example from last week. They may be technically correct, as Cardinal Dulles seems to think; I couldn't presume to second-guess his Eminence. But there is also reason to believe that they reflect a growing crisis in confidence in the role of the ordained in the ministerial life of the Church (in the United States). One can agree with the Council's statements on the laity without welcoming the emergent theology of lay ministry.
It was in this (to me) depressing context that I welcomed the Bishops' fresh opposition to capital punishment. That said, the analytical problems inherent in what made its way into the Catechism aren't going away. If what Catechism advances is a prudential judgment about administering the death penalty today, neither the Roman Pontiff nor the U.S. Bishops have a privileged place in reaching this judgment; here they should defer to laity who are competent to judge what is necessary for the protection of the common good. I agree with Rick that the Bishops are, here again, insufficiently forthcoming about the fact that retribution is a doctrine of punishmeht that the Church (still) approves. The proper question, from this angle, is whether the penalty of death is disproportionte to a particular convict's culpability; even John Paul II never said that the death penalty is always and everywhere disproportionate. The Bishops' (and the Compendium's) focus on the non-retributive grounds of punishment obscure the Church's teaching that fault is (a necessary condition) and proper basis of punishment.
I recently discovered Jacques Maritain's last (1970) comment on capital punishment: "In my opinion it is only in the case of legitimate defense or of defensive war that the putting to death of a human being is not a sin of homicide, and capital punishment is in itself such a sin committed by society." Is this because he knows that society never will find it necessary to defend itself by killing a culpable malefactor? Or because death always and everywhere is disproportionate to human wrongdoing? Maritain certainly believed that civil authorities have the responsibility to punish culpable wrongdoers as justice demands.
Anyway, two cheers for the Bishops on capital punishment.
A proposed "national curriculum" for babies and toddlers in the U.K. provides a fascinating case study of how (not) to implement conceptions of the common good while honoring subsidiarity, family autonomy, and cultural pluralism.
My friend and colleague, Prof. Mary Ellen O'Connell, has posted on SSRN a new paper, "Affirming the Ban on Coercive Interrogation," that will likely be of interest. Here is the abstract:
Beginning in 2002, lawyers for the Bush Administration began producing the now infamous legal memoranda on the subject of interrogation. The memoranda advise interrogators that they can torture people without fear of prosecution in connection with the so-called "global war on terror." Much has been and will be written about the expedient and erroneous legal analysis of the memos. One issue at risk of being overlooked, however, because the memos emphasize torture, is that the United States must respect limits far short of torture in the conduct of interrogations. The United States may not use any form of coercion against persons detained in an armed conflict, nor may it engage in cruel, inhuman and degrading treatment at any time. The great effort of the memo writers to restrict torture to the most extreme conduct imaginable obscures the fact that the United States has wider obligations. Avoiding torture is not enough. Interrogators must also respect the broader restrictions on coercive, cruel, inhuman, and degrading treatment.
The legal prohibition has, first, moral, but also pragmatic underpinnings. Apparently some in the Bush Administration have become persuaded that torture, coercion, cruelty and abuse can be effective methods of interrogation and that the need for information outweighs the illegality and immorality of using such means. The weight of the evidence is firmly against the conclusion, however, that forceful interrogation is as reliable as non-forceful methods. Using unlawful means has been counter-productive in effectively responding to terrorism. The evidence on information gathering supports international law's absolute prohibition on torture, cruelty, and coercion.
I am not sure I agree with Mary Ellen's characterization of the Bush Administration's controversial memoranda, i.e., that they "advise interrogators that they can torture people without fear of prosecution in connection with the so-called 'global war on terror.'" In any event, check it out.
But are these warnings that gay marriage poses a threat to marriage
true? Do they make either logical or empirical sense? At a time when fewer
Americans are marrying at all and many are divorcing, at a time when a third of
American households consist in single people, why is it a threat to marriage
that homosexual people are embracing marriage? Shouldn’t we find the large
numbers of people who are unmarried, often raising children as single parents,
the prime threat to marriage? What is remarkable about the current movement for
marriage among gay people is that they are asking for basically the same
institution and ideals of marriage as heterosexuals currently enjoy. They want
a publicly recognized sealing of a commitment to a lifelong monogamous union
with another person with whom they want to share their lives, an institution
that also carries with it certain legal rights, such as shared pensions and
health plans. Why is this a threat to marriage?