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, October 17, 2007

Anderson on WHO-Guttmacher Study

I didn't get any takers here, but Ryan Anderson takes a crack over at First Things at the question I asked in the wake of the WHO-Guttmacher Study.  As I read his thoughtful post, he suggests that a  consequentialist approach to the decision whether "there ought'a be a law" may not be appropriate or decisive in all moral contexts, or, perhaps, consequentialist considerations are muted in certain contexts.  His post provides a lot of food for thought. 

I do have a question, though, about a passing analogy he makes to slavery.  Anderson asks:

What if during the early days of abolition people claimed that the results of outlawing the slave trade wouldn’t reduce the number of slaves but would only have deleterious effects on those slaves who now would be transported on the black market? I doubt that any of us would consider this a reason not to start down the road of criminalizing slavery and emancipating slaves.


I'm not sure I fully buy the analogy here.  Slavery is, at least in substantial part, a legal (status) relationship.  As such, a law outlawing slavery would, in some substantive sense, be guaranteed to be effective in that it would immediately transform the legal status of the former slaves.  Now, Anderson is right of course that such a law might drive relations of involuntary servitude underground or might simply lead slavery to be replaced by new legal institutions (e.g., debt peonage) that make former slaves even worse off in some respect, or perhaps no better off (although this is certainly contestable, since one might plausibly argue that even the most destitute and dependent free person is better off than the legally enslaved).  The analogous question to the one I asked would be whether these consequences would be worth paying for the abolition of legal slavery. (As an aside, at least one feature of abortion makes me think it  would to be harder to stamp out than slavery, and that is that, unlike slavery, all parties involved (with the exception of the fetus, who cannot speak for him or herself) consent to the procedure.  As with other consensual vices -- prostitution and drug sales spring to mind -- this dimension might make enforcement of laws prohibiting abortion very challenging in a free society.)  I think the ultimate answer would depend, at least in part, on whether we thought the hypothetical consequences of outlawing slavery were really beyond our control, but I'm not sure it's absurd to suggest that they would be at least relevant to the question whether (or perhaps how) to abolish slavery.

For a different take on this question than Anderson's, take a look at this post over at Catholic blog Vox Nova.

"Civilizing Authority"

Run, don't walk, to . . . an internet bookseller and get Patrick Brennan's new edited volume, "Civilizing Authority:  Society, State, and Church."  It's just great.  Or, as I put it in my (first!) back-cover blurb, "An education and a delight, Civilizing Authority is like participating in a rich and provocative conversation, about questions that are both timely and timeless, among learned friends."  Contributors include Patrick Brennan, J. Budziszewski, Jack Coons, Avery Cardinal Dulles, Russ Hittinger, Tom Kohler, Steve Smith, Glenn Tinder, Joe Vining, and Michael White.  Wow!

SCHIP, "Pro-Life," and "Prudence"

Thanks to Rick for posting Ryan Anderson's article on SCHIP.  I agree that whether to support the SCHIP expansion is a question with significant elements of prudence and should not be a litmus test for whether one is a "good Catholic" or a "good Christian."  But that doesn't mean there aren't moral and policy reasons why pro-lifers and Christians, among other citizens, should exercise their judgment in favor of this bill to make children's health care available to more modest-income families.  (Like Mr. Anderson, I'm not an expert on this; my comments are based on general knowledge and on learning from the nonpartisan website factcheck.org and links from it.)

First, Mr. Anderson's statement of the SCHIP issues largely reflects Republican characterizations, some of which are inaccurate or misleading and to which Factcheck has correctives that are worth reading.  Second, it's really too much to hear the President oppose the expansion on the ground that it may benefit some families with incomes up to $83,000 in one or two states, when his own coverage proposal -- a fixed income-tax deduction for a family at any income level who buys health insurance -- "would disproportionately increase coverage among higher income groups," according to the consulting-firm report that the administration itself quotes (see near the end of the Factcheck.org page).  According to that report (see Figure 3 at that link), the percentage increase in coverage among families making more than $100,000 a year (38.6 percent) will be double or greater the increase among families making less than $40,000 (19.1 percent for incomes in the 30s, less for lower incomes) -- yet the President criticizes the congressional bill for not "focus[ing] on serving children from families below" the $40,000 level!  As is usually the case, the choice of a tax deduction as the means to deliver benefits disproportionately helps those in higher tax brackets.  By contrast, under the congressional bill, according to the Urban Institute study quoted in Mr. Anderson's article, SCHIP will still preserve 70 percent of its benefits for children in families under $41,300 yearly income (figuring a four-person family) -- hardly "a welfare program for the middle class" as Mr. Anderson claims.  In the light of this contrast, I'm not so confident as Mr. Anderson that everyone in the debate is focused on helping the poor.  Where is the administration proposal that focuses on expanded coverage for the modest-income family?

Finally, Mr. Anderson raises a colorable concern that the term "pro-life" will be diluted if it is applied to more than just "opposition to legalized abortion coupled with support for mothers facing crisis pregnancies."  But there are of course colorable (at least colorable) arguments the other way, which he ignores: that expanding the range of policies in a "pro-life" agenda will recognize the various economic and social factors and conditions that affect women's decisions whether to abort, and that the broader view can increase the credibility of the pro-life position among those not already committed to it.  At the least, Mr. Anderson should not, in a post calling for tolerance of opposing viewpoints, accuse those who adopt the broader pro-life view of "charg[ing] to eviscerate" the term pro-life.

Tom

Duquesne and Planned Parenthood

We've had discussion on this blog at various times and in various contexts regarding Catholic Universities and their sponsorship of certain speakers and events.  The New York Times reported this morning that a Pittsburgh public radio station stopped running messages from Planned Parenthood becuase Duquesne University, the licence holder of the radio, determined that Planned Parenthood was "not aligned with our Catholic identity."  The article appears here.

From the article, it appears that Duquesne founded the public radio station 58 years ago.  During a pledge drive, the following message was run: "Support for DUQ comes from Planned Parenthood, providing comprehensive sexuality education, including lessons on abstinence.  Planned Parenthood: Their mission is prevention."

Leave aside whether the message is an accurate statement of Planned Parenthood's mission, since that does not appear to be the issue.  Rather, the question raised is "whether the station's news content is independent and, ultimately, whether the station should separate itself from Duquesne."  The station has received a significant number of calls and e-mails objecting to its decision to stop running the ads and questioning its "editorial integrity."

I'm interested in the views of others on this.  It seems to me that the debate about what kind of speakers a Catholic university should have on campus and/or should honor is different from the question of what content is appropriate for a public radio station as to which the Catholic university is a licence holder.  I'm not making a statement about how either should be resolved (although I confess my general leaning is always in favor of more speech rather than less), but I do think they are different questions and I tend to think there should be less control exercised over a public radio station than in other situations.

Tuesday, October 16, 2007

Finn on the Self-Interest Conundrum

Susan, picking up on your exchange with Sr. Margaret John on self-interest, folks might find food for thought on this in Dan Finn’s recent book, The Moral Ecology of Markets.  I think it’s a terrific resource for all of us who are working with the economic implications of CST.

On page 56, Finn describes the distinction between psychological egoism (“all human action is inevitably egoistic, oriented toward the benefit of the actor . . . ‘Each of us is always seeking his own greatest good, whether this is conceived as pleasure, happiness, knowledge, power, self-realization…’”); and ethical egoism (the moral argument that “an individual’s one and only basic obligation is to promote for himself the greatest possible balance of good over evil.”).  He then outlines a number of problems with psychological egoism, including the underlying tautology— “If every conceivable human action can be explained by self-interest, then self-interest explains nothing.” (57); the distortions entailed in a description of the world “that cannot distinguish saint from sinner, martyr from murderer, altruism from selfishness” (57); and the challenges that it poses for common understanding—most people have trouble absorbing that “technical economic notion of self-interest can include concerns for others.” (57).  Finn concludes: “Leading a moral life is difficult and at various times requires the subordination of one’s interest to those of others.” (57)

Later he discusses two examples: first, presented with the choice of whether to buy dented cans of beans, leaving the good cans for other customers, he notes: “the self-interested thing to do is to buy undented cans, while the neighborly thing to do is to buy the dented cans.” (109).  But in a context where customer complaints may generate systematic improvement in production or delivery, refusing to buy the dented might actually be a service to the common good (or at least efficiency): “Self interest need not result in harmful effects for others.  It can … actually lead to a more careful husbandry of the goods of the Earth.” (111).  In contrast, faced with the dilemma of whether to buy a cheaper rug made by child slave-labor, one may not have the same hope for systematic change. The difference between the two examples “is in the institutional framework within which these two chains of events occur.” (112).  Thus it is futile to look for “a simple rule based on the intention of the actor to determine whether narrowly self-interested action is good or bad.” (113). 

            By way of probing the insights of Sr. Margaret John, here’s my question for Finn: Could this tangle all boil down to a natural law argument about teleological nature of human beings?  Is the reason that most people have trouble absorbing a notion of self-interest that includes others because of a widespread philosophical foundation of individualism?  If that is the case, is that a reason not to push the boundaries on this argument?  If a more relational vision of the self is at the foundation of the analysis, might that shift a sense of when one’s interests are “subordinated”?  Could a relational understanding of the self run parallel to how interest over time (long range interest) adds complexity to the analysis?  Might it actually be more neighborly to refuse to buy dented cans, communicate one’s concern, and push for a systematic change in packing procedures?  Is the bean example in tension with the list of concerns about psychological and ethics egoism?  Might a more robust image of the relational self (eg, the self not essentially in tension with others) make the moral life less “difficult”? 

Amy

Pro-Life, but against S-Chip expansion?

A group called "Catholics United" criticizes "ten members of Congress whose opposition to the State Children’s Health Insurance Program (SCHIP) have compromised their pro-life voting records."  Here is the full release. “Building a true culture of life requires public policies that promote the welfare of the most vulnerable,” said Chris Korzen, executive director of Catholics United. “At the heart of the Christian faith is a deep and abiding concern for the need of others. Pro-life Christians who serve in Congress should honor this commitment by supporting health care for poor children.”

Here is Ryan Anderson's response, "A Hijacking in Progress."  Anderson writes:

I'm no health-care expert, but it seems to me that that there are legitimate arguments on both sides of the debate over this bill. Those who think a single-payer, federally funded health insurance program is ultimately the way to fix American health care will likely support the expansion of S-chip as a step in that direction. Those who think that this expansion will reduce competition in the health care market and create too many additional entitlements that the federal government can't fund (as millions of middle-class families who previously paid for private insurance for their kids opt in for this "free" one) have opposed it. This is what some of the congressmen that Catholics United is targeting have said--they support reauthorizing S-chip as it currently is, but the Democrats' plan for its expansion is a mistake. . . .

The pro-life jabs are particularly distasteful and destructive. They are nothing more than gross moral equivocation and the intentional hijacking of language. If every poverty-fighting bill under the sun becomes a "pro-life" bill, then the words lose all meaning. According to its website, Catholics United is a pro-life group dedicated to protecting the 1.3 million Americans killed every year by abortion. Yet it is leading the charge to eviscerate the clear meaning that the words "pro-life" have had in the American context for the past generation: opposition to legalized abortion coupled with support for mothers facing crisis pregnancies.

But no one is against health care for poor children. In this debate there is no pro-poor and anti-poor.  Everyone is pro-poor.  There simply are different ways of being pro-poor: one way emphasizes federal programs and nationalized care, and one favors private initiatives and community empowerment. Extending federally-subsidized state-run health insurance to children in families making eighty-thousand dollars a year is one way among many to meet the needs of children.  Drawing largely from Catholic Social Doctrine, the principle of subsidiarity, the autonomy of the family, and John Paul II's moral critique of the welfare state, I happen to think it's a mistaken way. But I won't call you a bad Catholic or anti-life if you disagree.

Holy Hoops

It's almost time, friends.  No, I'm not talking about Fall Break, the feast of St. Margaret of Scotland, or (shudder) the first presidential primaries.  I'm talking about college basketball.  A good time, then, for this review, "Holy Hoops", by Jason Byassee, of Will Blythe's (misguided, of course) To Hate Like This Is to Be Happy Forever: A Thoroughly Obsessive, Intermittently Uplifting, and Occasionally Unbiased Account of the Duke-North Carolina Basketball Rivalry (HarperCollins, 2006).  Here's the opening of the review:

The air has turned. The heat is gone, cool is here, cold is coming. This can only mean one thing: college basketball is on its way.

In advance of this quasi-liturgical season (at least for those reared in North Carolina, Kentucky, Indiana, and other enlightened places) let us ponder matters metaphysical. I have evidence for the existence of a merciful God. Proof, almost: Duke and North Carolina have never met in a men's basketball Final Four. How could heaven compare to the joy of winning such an apocalyptic contest, or hell to losing it? If bonfires and naked revelry erupt when the two meet in regular season games, what manner of destruction and mayhem would accompany a title game between the two?

Now, what's the connection to Catholic legal theory?  Hmmm.  Well, Coach K. is a Polish Catholic from Chicago.  And, of course, all things pertaining to the true, the good, and the beautiful ought to be within our purview here at Mirror of Justice.  Finally, there is some God-talk in the review.

Another reflection on capital punishment

This is not a direct response to Susan’s postings regarding capital punishment, but it is presentation of some views that I believe constitute one Catholic legal theory approach to this important issue. I have been working on this [Download moj_death_penalty.doc ] for some time. My views may help others in their consideration of the status of the death penalty wherever it still exists.   RJA sj

Monday, October 15, 2007

More on the Death Penalty

Mike Schutt offers this follow-up to my prior post on the death penalty and our creation in the image of God:.

"1. I do understand the point on the alteration in the way we read the OT; yet, it is clear that God is saying that murderers, at least *then*, where to be put to death because human beings are created in the image of God (again, Gen. 9:6).  Unless anthropology has changed, the imago Dei is still the reason it was instituted in the first place, I think. 

"2. So, the question is, I guess, how do we find out the *now*?  The Gen 9 passage is not part of the Mosaic law that is so difficult to interpret and apply in light of Christ's death and resurrection.  Yet even the Sermon on the Mount (a portion of which you quote in the eye for an eye passage) points not to a relaxation of the OT Mosaic law, but a *higher* standard for meeting the demands of God (for salvation).  It speaks nothing to the civil law, other than to say it is not God's standard, perfection is, and it does not advocate abolishing the civil laws, though of course Christ's death does change much of the Mosaic covenant.  Do you know of an argument or position  that addresses the Noahic covenant or the death penalty in light of the NT?  I am not acquainted with arguments regarding treatment of this particular passage or a theological position that would say that the Noahide passages are no longer ap plicable.

"3.  To the contrary, Romans 13 speaks of the civil ruler "not bearing the sword in vain" as God's "instrument of wrath."  In the face of lack of contrary evidence regarding Genesis 9, I don't see an imago Dei argument. 

"4.  I would like to explore the possibility that the incarnation may change how we act upon human beings created in the image of God, and the possibility that the Incarnation fundamentally alters the OT approach.  I'm not sure it can work, given the explicitness of the passage, but I do understand what you're saying.

"I am not saying that I don't understand the prudential and administrative arguments for abolishment or moratorium-- I'm just trying to get a clear picture of the basis of the imago Dei position and the Catholic theological approach to the Genesis and Romans passages."

Any reactions to Mike's observations?

Death Penalty and Imago Dei

In a recent post on the UN's call for a global moratorium on the death penalty, I stated my belief that "the death penalty is inconsistent with Catholic Social Thought.  The dignity of the human person, our creation in God's image, demand that we seek alternatives to the death penalty."  MOJ-friend Michael Schutt sent the following in response:

"I'm wondering two things.  At bottom, my issue is with the imago Dei being the foundation of opposition to the death penalty, when Scripture teaches that human dignity that comes from being created in God's image is the foundation for the death penalty (Genesis 9:6: "Whoever sheds the blood of a human, by a human shall that person's blood be shed; for in his own image God made humankind.")   So . . . I have two questions, if you can help:

"Is there any interaction with this passage, that you are aware of,in the current thinking in RC circles?  Rick Garnett's excellent piece from a few years' back (which takes the same position that you do)does not mention it.  It's not as if this is an obscure part of the Mosaic law-- it's in the Noahic covenant, not Mosaic, and one that theologians see as generally applicable today based on God's promise never to flood the world again.

"In Evangelium Vitae, JP II does start with the principle of imago Dei, but later expressly says that it is only absolute as to "innocent persons" (para. 57).  He has to go further than the imago Dei in order to build a case against the death penalty.  It seems his clearestnprinciples are based on state "protection" of society and rooting criminal justice theory in rehabilitation and behavior modification (para. 56) (rather than, say retribution).  In fact, he concludes his discussion by quoting the Catechism:">"If bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons, public authority must limit itself to such means, because they better correspond to the concrete conditions of the common good and are more in conformity to the dignity of the human person".  That "IF" says it all:  the death penalty would be permissible if necessary to defend society; therefore it is not absolutely--only conditionally-- rooted in the imago Dei, but is instead rooted in a particular theory of the state and of criminal justice.

"It seems to me if the imago Dei compels the death penalty, it cannot be the reason to abolish it.  I don't think that this is the teaching of the Church, but it seems to be what many Roman Catholics are saying.  Since I'm jumping on a one-sentence post of yours, I understand that I may be completely missing the boat.  But I think this has implications for a host of other things that RCs and evangelicals talk past each other about. >Any thoughts?"

I offered the following initial quick reply to Mike's queries:

First, although I haven't seen discussion of this passage in the Catholic discussion about the death penalty, I obviously don't believe that our creation in God's image compels the death penalty.  The Incarnation changes radically how we read Old Testament laws. (Think of Matthew 5:38 - "you have heard it said an eye for an eye, but I say...") and I think our understanding of what it means to be created in the image of God has to be informed by Christ's becoming human.  A different way ot saying that is that the dignity of the human person "flows directly from the doctrine of the Incarnation itself" in the words of Michael Himes.
Second,  I don't read the Pope's statements re the death peanlty as merely suggesting a "particular theory of the state and of criminal justice."  My own view has been that some of hte Church's statements about the death penalty reflect the fact it feels the need to couch things in a way that don't suggest its prior position was in error.  Evangelium Vitae accepts there is no situaiton in the modern world that would justify the death penalty although it doesn't quite come out and say so. But what it does say does make clear that not having the death penalty is more in conformity with the dignity of the human person and common good than having the death penalty.
Any thoughts from others?