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.

Monday, June 7, 2010

"At Any Cost: Heroic Measures to Saves Lives"

By Michael Scaperlanda

Some time ago my sister, Angela, sent me her essay "At Any Cost:  Heroic Measures to Save Lives." Although written after the Haiti earthquate and well before Peter Singer's recent op-ed titled "Should This Be the Last Generation?," I think it offers a powerful response to his essay.

All work stops.  A small tapping sound is heard beneath the rubble; signs of life.  Everyone on the rescue team increases their determination and will go to any length to find the survivor.   I have watched the tremendous humanitarian efforts of not only trained professional rescuers, but film crews, family members, and every day individuals as well.  They are all trying to save as many lives as possible following the devastating earthquake in Haiti.  The images on television are heartbreaking; children, already born into difficult circumstances, now facing unimaginable hardships, many without parents, shelter, and even limbs.  But they are alive and the world rejoices.

 

I cannot help but wonder, how many more are left under the rubble still alive?  They may be buried so deep, that any signs of life cannot be heard.  Their movements and sounds go unnoticed.  There is no doubt; every rescuer present would risk their very lives to save them, if they could only hear their cries.  No matter how difficult the circumstances the children and other survivors will face, everyone agrees, life is worth saving.

 

In spite of the magnitude of the disaster, I cannot help but be filled with hope for our world.  Nations are at war, global recession is wreaking havoc, and crime is on the rise, while job opportunities are falling.  Still, the global community has heard the cry for help and responded to the humanitarian call.  The world has sent a message from Haiti as a testament to life itself.  Everyone has joined forces around one of the poorest nations in the world to literally lift it from the rubble and preserve life. 

 

If the world will rally for Haiti, will it not also finally join forces and rally on behalf of all the unborn whose lives are in danger?  These children are moving, tapping, living.  Although we cannot hear their cries, we know they are there.  With today’s technology, we do not have to rely on microphones buried deep within the Earth to detect life, we can see their humanity.  Although not everyone will agree that life begins at conception, there is clearly life forming activity from the very start.  The life forming is human.  If we followed the example of rescue workers in Haiti, we would proceed on the assumption that what we are detecting is alive. Rescuers are not absolutely certain that they will find someone breathing when they finally make their way through the rubble.  If there is even the slightest chance that someone is left alive, they give their absolute effort.  Should we not proceed as well, erring on the side of caution, not waiting until everyone is convinced that a human embryo is human life?  If there were even the slightest chance that a life could be spared, wouldn’t all of us want to give our absolute effort? 

 

Precious time is passing and lives are being lost.  It is time to put political positions aside, join forces, and as a global community, collectively work to preserve life.  Just like many of the children we have seen on the news laying in parks next to the ruins, these unborn children may be “unwanted,” they could be born into “devastating” circumstances, many could even be deformed or facing other unimaginable health issues.  They have a chance at life though.  The world has spoken in Haiti.  Life, no matter how devastating the circumstances, is worth saving.  What of these unborn lives?  Will we not go to heroic measures to save them?  Their tapping will go on long after the Earth finally settles in Haiti.  Let’s not let their sounds go unheard.

Capital Punishment, Revisited

By Michael Perry

Interesting post by Lisa Fullam, with comments, over at dotCommonweal.

No Cheers for Hedgehogs

By Steve Shiffrin

Ronald Dworkin has a book forthcoming later this year, Justice for Hedgehogs, but there is already a symposium in the Boston University Law Review discussing it with a response by Dworkin. I have always been attracted to the main lines of Dworkin’s philosophy of law and repelled by his account of liberalism. Indeed, I got interested in political theory because of how much I disagreed with him. In general, I despise his liberalism because it is designed for hedgehogs. In my view, social reality is too complicated and values conflict in too many contexts to hope or expect that a theory with a few small premises could lead us to good results across a wide variety of cases, but that is exactly Dworkin’s objective. I think the notion that the state should be neutral about the good life to be simplistic. I think that the deductions of hedgehog theory are forced. I think they obscure the tragic choices inevitably made in decisionmaking. I went on a partial rant in this vein at the Colloquium on Philosophy and the Social Sciences in Prague and one of the presenters, Frank Michelman, who has read the book (and written about it in an interesting essay) said, “Steve, you are not going to like this book.”

 I have read many of the essays in the symposium. I particularly like two of them so far (in addition to Frank Michelman’s). Martha Minow and Joe Singer have a wonderful essay stressing the existence of tragic choices that are suppressed by Dworkin’s analysis and why the acknowledgement of such choices is more true and humane that that put forward by Dworkin. Robin West also has a very nice essay which opposes the neutrality about the good life idea and argues that the idea of rights as trumps can obscure the tragic choices made.  She also makes the interesting point that with all our theorizing about what legislators must not do; we have undertheorized the question of what they should be morally (and perhaps legally) obligated to do.

These essays and the other essays in the symposium are available here


Sunday, June 6, 2010

Americans' evolving views of homosexuality

By Michael Perry

NYT, June 4, 2010

Charles M. Blow, "Gay? Whatever, Dude"

Last week, while many of us were distracted by the oil belching forth from the gulf floor and the president’s ham-handed attempts to demonstrate that he was sufficiently engaged and enraged, Gallup released a stunning, and little noticed, report on Americans’ evolving views of homosexuality. Allow me to enlighten:

1. For the first time, the percentage of Americans who perceive “gay and lesbian relations” as morally acceptable has crossed the 50 percent mark. (You have to love the fact that they still use the word “relations.” So quaint.)

2. Also for the first time, the percentage of men who hold that view is greater than the percentage of women who do.

3. This new alignment is being led by a dramatic change in attitudes among younger men, but older men’s perceptions also have eclipsed older women’s. While women’s views have stayed about the same over the past four years, the percentage of men ages 18 to 49 who perceived these “relations” as morally acceptable rose by 48 percent, and among men over 50, it rose by 26 percent.

I warned you: stunning.

There is no way to know for sure what’s driving such a radical change in men’s views on this issue because Gallup didn’t ask, but that doesn’t mean that we can’t speculate. To help me do so, I called Dr. Michael Kimmel, a professor of sociology at the State University of New York at Stony Brook and the author or editor of more than 20 books on men and masculinity, and Professor Ritch Savin-Williams, the chairman of human development at Cornell University and the author of seven books, most of which deal with adolescent development and same-sex attraction.

Here are three theories:

Continue reading

Peter Singer: "Should This Be the Last Generation?"

By Michael Perry

The Stone
Should This Be the Last Generation?

Should This Be the Last Generation?

On the moral calculus of bringing a child into the world.

Constitutional/constitutive deceit?

By Patrick McKinley Brennan

Many good answers to questions that properly arise in the face of the dilemma -- which I regard to be false -- of judges either *making it up* or *looking it up* can be found in Jeff Powell's Constitutional Conscience: The Moral Dimension of Judicial Decision (The University of Chicago Press, 2008).  The question animating the book is of a piece with the one Michael Perry and Rick Garnett have just been pursuing here (or not quite pursuing, pending something Michael Perry mentioned in Brooklyn): When is it a good idea, all things considered, for a judge to lie about what he or she is up to in reaching/justifying a decision?  Powell's claim is that virtues -- faith, integrity, candor, and humility -- should guide constitutional interpretation, because they (virtues)  are among the ends we as individuals and as a people should be seeking and living (including by engaging in constitutionalism at all).  I share Powell's judgment that the people who endow the governing authority with power have the right (because they have the duty) to expect of it/them virtuous conduct of office, which includes honoring the terms of the delegation of office they have received.  If they should come to understand that they cannot perform under that delegation without doing (serious) wrong, then they must not perform under it, unless of course one believes one can do a (proportional) wrong to achieve a "right."  Proportionalism, though, as a species of moral theory, is last season, not to mention vicious.   

If I understand Rick's response correctly,

By Michael Perry

Rick's position is simple and unconditional--simple because unconditional.  By contrast, I agree with Goldsworthy and Kay.  Which means that my position is not unconditional--and, therefore, not simple. Maybe Rick and I will get to clarify our respective positions, by talking with one another about cases--real and/or hypothetical--in Brooklyn later this month. 

Wading into Michael's "deep waters"

By Rick Garnett

Thanks to Michael for his recent post, in which he asks us to consider two hypotheticals in light of Jeffrey Goldsworthy's claim that "[j]udges may sometimes be morally justified in lying about what they are doing, but in a democratic and tolerably just society, only in rare and exceptional circumstances."  Sometimes morally justified.  Even in a democratic and tolerably just society.  But only in rare and exceptional circumstances."

So, my view -- which is certainly open to revision -- is that it is not "legitimate in either or both [of Michael's hypotheticals] for [a judge] to pretend that according to what [he or she] judge[s] to be the better interpretation of the Amendment, the policy at issue is unconstitutional[.]"  Part of the "deal", it seems to me, is that a judge is given a role -- a role to which power attaches -- on the condition that he or she agrees (promises, I think) not to "lie about what [he or she is] doing."

But, again, I could be wrong.  So, Michael, what do you think?

O'Neill on "Religion and the Judiciary"

By Rick Garnett

This post, "Religion and the Judiciary" -- about the relevance of judges' religious faith -- from the "U.K. Supreme Court blog"("SCOTUK?"), by MOJ-friend Aidan O'Neill, is worthy reading and thinking about.  (Among other things, the post is a reminder that even someone as gifted as Ronald Dworkin will sometimes say shockingly unhinged things.  Aidan's post quotes an example.)  Aidan's interesting post closes with this:

What the religiously motivated find difficult to understand or accept is that the freedom from discrimination on grounds of religion or belief which has been afforded them by the law does not extend to giving the religious a general right to discriminate (on otherwise unlawful grounds such as sex, age, race, disability, or sexual orientation) on the basis of religion or belief.    There will undoubtedly be more litigation – if not further legislation – on this whole vexed issue.   The UK tradition of being blind to our Justices’ religion will come to be further strained as a result.

If the term "does not extend" is meant to be used descriptively -- that is, to report that, in fact, the laws in the U.K. are not understood to protect religiously motivated "discrimination" -- then, of course, I have to defer to Aidan, who knows far more about the laws in the U.K. than I do.  If, though, the suggestion is that the laws should not distinguish between (irrational, invidious, etc.) "discrimination," on the one hand, and "religiously motivated decisions about employment and related matters by religious institutions and authorities," on the other, then I'd have to disagree.

UPDATE:  Aidan wrote to me, and said -- in response to the above -- that "[t]he phrase 'does not extend'  from the passage you quote, was indeed being used being used be me purely descriptively rather than implying any prescriptive judgment on my part."  He added, "[t]he law is still very recent on all this and the case law has yet fully to develop.  At the moment however the relevant government quango intervening on matters of discrimination , the Equality and Human Rights Commission, seems very much to be running the line that religion cannot and should not be recognised as providing any kind of lawful basis for making choices in employment or service provision on the basis of the employee/service recipient’s sexual orientation.  But as you know in the UK we have a quite different history and perception of the right role of religion in society, favouring establishment and presuming state regulation of religious bodies, rather than assuming any strict separation between the two sphere which so marks out US jurisprudence on the issue."

Deep waters, revisited

By Michael Perry

[Some notes from my comments to the judges at the Second Circuit Judicial Conference:  notes, it bears emphasis, intended to engender discussion and not to answer the question posed.  I am happy to report that the discussion was thoughtful and energetic.]

In the wake of SCOTUS’s then- and still-controversial decision in Roe v. Wade (January 1973) and of the late John Ely’s famous critique of the decision just three months later in the pages of the Yale Law Journal (April 1973), an old, tired debate erupted with great ferocity both inside the legal academy and outside it—a debate that even now, thirty-seven years later, continues with great ferocity—about what it means, or should mean, to “interpret” the Constitution of the United States.

Assume, for purposes of discussion, that you have a confident answer to that question—or that, at least, you have an answer to that question to which you are, confidently or not, committed.

Now, consider two hypotheticals:

1.  It is sixty years ago:  June 3, 1950.  You are a judge in a constitutional case in which it is argued that racially segregated public schooling violates the Fourteenth Amendment.  According to what you judge to be the better interpretation of the Fourteenth Amendment, such schooling does not violate the Amendment.  As a matter of deep moral and/or religious conviction, however, you are convinced that such schooling is not merely unwise, but constitutes a grievous assault—a sinful assault, if you will—on the inherent dignity of Americans of African ancestry.

2.  It is ten years ago: June 3, 2000.  You are a judge in a constitutional case in which it is argued that executing persons for crimes committed when they were children violates the Eighth Amendment.  According to what you judge to be the better interpretation of the Eighth Amendment, such executions do not violate the Amendment.  As a matter of deep moral and/or religious conviction, however, you are convinced that such executions are not merely unwise, but constitute a grievous assault—a sinful assault—on the inherent dignity of those who are executed.

_________________________

Continue reading

Previous Articles More Articles

Recent Posts

Categories

Monthly Archive