At the urging of my pals Mary Ann Glendon and Joseph Weiler, I accepted an invitation to speak (in a tag-team partnership with Mary Ann) at the 30th annual "Meeting for Friendship of Peoples" hosted by Communion & Liberation in Rimini, Italy. The meeting, which I had often heard about but never before attended, is quite remarkable. Over the course of a week, several hundred thousand people crowd into an Italian beach town to hear academic and religious lectures, attend concerts and other performances, and socialize. Mary Ann and I were assigned the topic "Elementary Experience and Natural Law." I'm revising my reflections on the subject to present as a lecture at the University of St. Thomas Law School in a few weeks, but in case MoJ readers are interested, here are the opening paragraphs of my presentation.
One’s knowledge of natural law, like all knowledge, begins with experience (one might even say “elementary experience”) but it does not end or even tarry there. Knowing is an activity—an intellectual activity, to be sure, but an activity nonetheless. We all have the experience of knowing. But to know is not merely to experience. Knowing is a complex and dynamic activity. The role of experience in the activity of knowing is to supply data on which the inquiring intellect works in the cause of achieving understanding. Insights are insights into data. They are, as Bernard Lonergan brilliantly demonstrated by inviting readers to observe and reflect on their own ordinary intellectual operations, the fruit of a dynamic and integrated process of experiencing, understanding, and judging.
So what are the data supplied by experience that are at the foundation of practical judgments, that is to say, insights that constitute knowledge of natural law? They are the objects of intelligibly choice worthy possibilities—possibilities that, inasmuch as they provide reasons for acting of a certain sort (that is, more-than-merely-instrumental reasons), we grasp as opportunities.
In our experience of true friendship, for example, we grasp by what is ordinarily an effortless exercise of what Aristotle called “practical reason” the intelligible point of having and being a friend. We understand that friendship is desirable not merely for instrumental reasons—indeed a purely instrumental friendship would be no friendship at all—but above all for its own sake. Because we grasp the intelligible point of having and being a friend, and we understand that the fundamental point of friendship is friendship itself, and certainly not goals extrinsic to friendship to which the activity of friendship is merely a means, we reasonably judge that friendship is intrinsically valuable. We know that friendship is a constitutive and irreducible aspect of human well-being and fulfillment, and that precisely as such friendship provides a reason for action of the sort that requires for its intelligibility as a reason no further or deeper reason or sub-rational motivating factor to which it is a means.
The same is true if we shift our focus to our experience of the activity of knowing itself. In our experience of wonder and curiosity, of raising questions and devising strategies for obtaining correct answers, of executing those strategies by carrying out lines of inquiry, of achieving insights, we grasp (by what is again for most people in most circumstances an effortless exercise of practical reason) the intelligible point of searching for truth and finding it. We understand that knowledge, though it may have tremendous instrumental value, is intrinsically valuable as well. To be attentive, informed, thoughtful, clear headed, careful, critical, and judicious in one’s thinking and judging, is to be inherently enriched in a key dimension of human life. We reasonably judge the activity of knowing, then, to be an intrinsic (or “basic”) human good—a constitutive and irreducible aspect of our flourishing as human beings. Like friendship and a number of other types of activity, knowledge provides a reason for choice and action that requires for its intelligibility as a reason no further or deeper reason or sub-rational source of motivation to which it is a means.
Knowledge of natural law, then, is not innate. It does not swing free of experience or of the data provided by experience. Even when it is easily achieved, practical knowledge (i.e., knowledge of natural law) is an achievement. It is an event—a temporal event. It is something that happens—or perhaps it would be better to say it something that is done—at a point in time by virtue of human acting. It is the fruit of insights which, like all insights, are insights into data, data which are supplied by experience. The insight—the knowledge—that friendship or knowledge itself is intrinsically humanly fulfilling is ultimately rooted in our elementary experiences of the activities of friendship and knowing, Apart from those experiences, there would be no data on which practical reason could work to yield understanding of the intelligible point (and, thus, of the value) of friendship or knowledge and the judgment that these activities are intrinsic fulfillments of the human person and, as such, objects of the primary principles of practical reason and basic precepts of natural law.
Of course, not all practical knowledge is moral knowledge, though all moral knowledge is practical knowledge—it is (or centrally includes) knowledge of principles for the direction and guidance of action. Yet knowledge of the most fundamental practical principles directing action towards the basic human goods and away from their privations, though not strictly speaking knowledge of moral norms, is foundational to the generation and identification of such norms. That is because moral norms are principles that guide our actions in line with the primary practical principles integrally conceived. Norms of morality are entailments of the integral directiveness or prescriptivity of the various aspects of human well-being and fulfillment that together constitute the ideal of integral human flourishing. So, if the first principle of practical reason is, as Aquinas say, “the good (bonum) is to be done and pursued, and the bad (malum) is to be avoided,” then the first principle of morality is that “one ought always to choose and otherwise will in a way that is compatible with a will towards integral human fulfillment.” And just as the first principle of practical reason is specified, as Aquinas makes clear, by identifying the various irreducible aspects of human well-being and fulfillment (namely, friendship, knowledge, aesthetic appreciation, skillful performance, religion, and so forth), so too the first principle of morality is specified by identifying the norms of conduct that are entailed by an open-hearted love of the human good (that is, the good of human persons) taken as a whole.
"After Al-Qaeda killed nearly 3,000 Americans, eight years ago on Friday, we went to war and spent hundreds of billions of dollars ensuring that this would not happen again. Yet every two months, that many people die becaue of our failure to provide universal insurance."
Read Kristof's op-ed here. Among the anamolies of our system Kristof points out is that those without insurance who are sick would do better if they were in prison, because courts have ruled that prisoners are entitled to health care. He gives an example of one 20-year old who refused parole because staying in prison was the only way she could get treatment for her cervical cancer.
We can debate methods, but Kristof is right that the central issue is a moral one. "The first question is simply this: Do we wish to be the only rich nation in the world that lets a 32-year-old woman die because she can't get health insurance. Is that really us?"
Doing nothing is not an option.
Saturday, September 12, 2009
Thank you Susan for your insights into health care reform. Last month, after reading Michael Pollan's Omnivore's Dilemma, I suggested that one way to control health care costs in the US would be to reform agricultural policy. A couple of days ago, Michael Pollan had an op-ed in the NYT advocating this approach. Here's a taste:
No one disputes that the $2.3 trillion we devote to the health care industry is often spent unwisely, but the fact that the United States spends twice as much per person as most European countries on health care can be substantially explained, as a study released last month says, by our being fatter. Even the most efficient health care system that the administration could hope to devise would still confront a rising tide of chronic disease linked to diet.
That’s why our success in bringing health care costs under control ultimately depends on whether Washington can summon the political will to take on and reform a second, even more powerful industry: the food industry.
According to the Centers for Disease Control and Prevention, three-quarters of health care spending now goes to treat “preventable chronic diseases.” Not all of these diseases are linked to diet — there’s smoking, for instance — but many, if not most, of them are.
* * *
The American way of eating has become the elephant in the room in the debate over health care.
HT: David Bell
UPDATE: Coincidentally, Susan's Creo en Dios post today also mentions the misuse of food.
My subject line was the unofficial title for the symposium held yesterday at Villanova Law: "Sovereignty's Seductions: Reconciling Conflicting Claims to Govern." The symposium grew out of a conversation my wonderful colleague Ann Juliano and I carried on, over several years, about whether it makes sense to try to decide any important politico-legal issues in terms of "sovereignty." I was skeptical, but Ann, who teaches Indian Law, made lots of good points about why sovereignty is indeed what one should call what tribes should be seeking from the U.S. government. Our goal in convening the symposium was to bring into a common conversation people who talk about sovereignty in a wide range of generally disjointed areas. Because of scheduling difficulties, a couple of the perspectives we had hoped to include (international, theology proper) weren't in the end represented. But that didn't get in the way of a fabulously successful discussion of a topic about which (to paraphrase one of the presenters) "there is still amazingly much to say."
The day was supposed to begin with remarks by Kevin Gover, director of the Smithonian's Museum of the American Indian and former Assistant Sectretary of the Interior for Indian Affairs, but at the last minute illness prevented him from attending. Doug Endreson, a pracitioner of Indian law in D.C. and an adjunct at Columbia Law School (and, like Kevin Gover, formerly my colleague at ASU) started us off with a masterful account of the phases and direction of Indian law in the U.S. Doug emphasized that even during periods when Indian interests have not succeeded in the Supreme Court, many tribes have made huge strides forward in terms of effective self-governance and community prosperity. Kate Struve, of Penn Law, went next, and she offered a rich account the myriad consequences of tribes' frequently having their interests determined in the courts of another sovereign. Hope Babcock, of Georgetown Law, spoke third, and her focus was the use, since John Marshall's trilogy of Indian law cases, of legal fictions to fix the place of Native interests in American law. This presentation offered lots of insights, coming out of Lon Fuller's work, on the broader place of fact and fiction in forming legal doctrine and practice. Where Endreson is optimistice, Babcock is straightforwardly pessimistic. The contrast couldn't have been sharper or better articulated. The fourth speaker was Don Doernberg, of Pace Law, and he developed the fascinating theme that because knowledge is power, putative sovereigns are having a harder time of it in this world of Twitter (where "Twitter" stands for all the instantaneous communication that dominates our lives). The instant availability of knowledge is making government more accountable to the governed, which, Doernberg argued, defeats claims to "sovereignty." Responsible and responsive governors are not the stuff of which Leviathan is made! MOJ's own Greg Sisk went last (but was not least), and he developed a strong account of why the common good calls for -- rather than, as I tend to think, forbids (or counsels against) -- federal sovereign immunity. For me, the principal issue is that when the the governor (I won't call him "sovereign") disobeys the law (and then claims immunity from suit under that law), this is inconsistent with the governor's showing the positive law the respect it deserves (as, by hypothesis, an ordinance of reason, for the common good, promulgated by one who has care of the community). Sisk's way around my objection, as I see it, is to take an ontologically lighter view of the status of the positive law. While I don't assume that judges have the power to craft remedies for violations of the positive law (that is itself a question of positive law, not of the natural law), I do take the (natural law) position that the positive law governs -- that is, its preceptive force holds with respect to-- even the behavior of the one who posits it (unless and until he withdraws it). I hope Greg will add his two or three cents not only the issues but on the tenor and topics of the whole day. Thanks to all who participated!
The five papers will be published in a forthcoming issue of the Villanova Law Review. I look forward to reading them with the care they deserve.
As an aside, I would add that this strikes me as event that exemplifies some of the distinctive contribution "Catholic law school" can make. I don't make the silly suggestion that this conversation could not have occurred at Rutgers or Iowa. Of course it could have. We had similar conversations at ASU during my eight years there, thanks in part to the presence there of the estimable Michael J. White. But in this case it occurred at Villanova, and it did so in part because of the intellectual space provided for the purpose of introducing Catholic views into the conversation. The symposium grew out of an organic intellectual inquiry and disagreement in which the Catholic view (as I understand it: "God alone is sovereign," as Maritain said) was in dialogue with a view in which God is not available (to be sovereign or anything else). "Catholic law schools" are uniquely positioned, through their faculty members who ask and answer the questions that define and guide the Catholic tradition, to test and try the other views that are on offer in the culture at large. This can happen sporadically in other institutions. It should be a defining feature of and regular occurrence in the life of a Catholic law school. Why is that so controverisal (or, as the case may be for others, negligible)?
Michael Scaperlanda directs us to a recent WSJ op-ed and asks what problems there might be to the author's suggestion of a market-based approach and whether such an approach is inherently at odds with Catholic Social Teaching.
I think the short answer is that if we could obtain a fully competitive private market and provide some back-up for those persons still unable to afford to purchase insurance in the now-more-competitive (and therefore presumably less expensive) insurance market, there would be no reason to complain from the standpoint of Catholic Social Teaching. Let me say a few words about both pieces of that suggestion.
First, I think any hope of achieving a fully competitive market requires doing away with the tax-favored status of employer plans. I suspect the author of the op-ed knows this and waffles on the issue because he knows how politically unacceptable such an idea would be. As we all know from the debates on health care reform, significant numbers of those who are now covered under employer plans don't want to see health care reform that requires them to change their coverage. Changing the tax provisions to put individual purchasers and employer puchasers on the same footing would mean changes in existing plans. I think that is a good thing...in fact I'd like to see employers out of the business of providing medical coverage alltogether, but I don't think that is feasible politically.
Second, I'm far less confident that innovations such as guaranteed renewable contracts "would catch on quickly in a vibrant, deregulated individual insurance market," making it likely that even in a competitive market, some of what the author wants would likely require changes in state insurance laws. That means relying on 50 states having to change their insurance laws. So the change would not be quick in coming.
Third, even in a fully competitive market, there will be some people who can't afford insurance. I'm guessing that many of the same people opposed to government involvement in health care reform would balk at a substantial increase in Medicaid eligibility to cover the working poor who will not be able to afford coverage. Relying on a private market and leaving substantial numbers of people unable to obtain medical care because they can't afford it is not acceptable.
The bottom line is that I don't think one can say that a market-based approach supplemented by some means of providing coverage for those who still can't afford insurance on the private market, is at odds with Catholic Social Teaching. I'm just not convinced we can get there.
