The on-line journal Public Discourse, under the brilliant editorship of Ryan Anderson, has become a key site for people interested in the rigorous analysis of contemporary disputes about ethics and morally-charged questions of law and public policy. Its editorial policy is unabashedly and unambiguously pro-life, but it provides a forum for the airing of disagreements within the pro-life family.
Over the past week, Public Discourse has published an important exchange of opinions between two leading pro-life philosophers---Christopher Tollefsen and Christopher Kaczor---on the legitimacy of lying in the fight against grave injustices, such as the taking of innocent human life. Rick Garnett has already called attention to this debate. Its occasion is the "sting" operation carried out by pro-life activist Lila Rose and her organization Live Action, which has profoundly damaged the credibility and reputation of Planned Parenthood, the nation's largest abortion provider, by exposing the willingness of some of its employees to aid and abet those whom they were led to believe were involved in the sex trafficking of underage girls.
Tollefsen and Kaczor agree that Planned Parenthood is a deeply malicious organization that should, by all legitimate means, be vigorously opposed by everyone who recognizes the humanity, dignity, and right to life of the child in the womb. The question in dispute between them is whether lying is a legitimate means. Tollefsen, in line with the teaching of St. Augustine, St. Thomas Aquinas, and the Catechism of the Catholic Church, argues that lying is always and everywhere wrong, and may never be resorted to, even as a means of preventing wrongful killing and other grave injustices. His account of the moral wrongness of lying focuses on its damage to the integrity of the liar and to the relationship (the communio) of the liar and the person to whom the lie is directed---damage that is unavoidably done whether one's lying is in a good cause or a bad one. Kaczor appeals to a counter tradition, one associated with Cassian and St. John Chrysostom, that maintains that there are narrow circumstances in which lying (to those who have "no right to be told the truth") is permissible as a means of frustrating the efforts of a grave wrongdoer to achieve his evil objectives.
The blogosphere is now filled with people weighing in on the competing sides. Catholic blogs, in particular, seem to be occupied with the question. As has been pointed out by people on both sides, the original draft of the Catholic Catechism contained language leaving room for the Cassian/Chrysostom position; but that language was removed in the final official version. The firm teaching of the magisterium, reconfirmed in the Catechism, is that lying is intrinsically immoral and is therefore impermissible even as a means of preventing grave injustices and other evils. I don't see how it is possible to avoid the conclusion that this teaching requires of Catholics the submission of intellect and will that is known as "religious assent."
Even apart from the invocation of religious authority, it seems to me that Tollefsen (with whom I am co-author of Embryo: A Defense of Human Life) is correct that lying is intrinsically wrong. So the only way I can think of to defend Live Action's tactics is to argue that the utterances and actions of those who represented themselves as sex traffickers and prostitutes were not lies. My sense is that Rick is inclined to defend Live Action's tactics in precisely this way. I don't think it can possibly work when it comes to the utterances of the Live Action team. They stated things they knew to be false precisely with a view to persuading the Planned Parenthood workers that they were true. That's just what a lie is. And their utterances were not made in a context of social conventions that could render a statement one knows to be false something other than a lie: such as when someone invites a friend out for a "quiet meal" on his birthday, only to deliver him to a big surprise party in his honor. Could Live Action have pulled off the sting without making false utterances?
I think the answer to that is probably yes. And that takes us to the next question. What about deceptions that do not involve false utterances? Some are plainly wrong. Others, however, seem pretty clearly not to be. Tollefsen points out that Aquinas, while condemning lying even in justified wars, held that military feints are not necessarily lies and can be morally permissible. Getting to just what it is that distinguishes the two is, I predict, where this debate is heading---and that, I believe, is just where it should head. Getting greater clarity on the issue would be valuable to all who wish to use every legitimate means, while avoiding every illegitimate one, in working to defend human rights, protect the common good, and fight grave injustices such as abortion.
Catholics certainly, but non-Catholic pro-lifers, too, should reject lying even in the greatest of good causes. What we fight for is just and true, and truth---in its unparalleled splendor and luminosity---is the most powerful weapon in our arsenal. It is the truth about the precious life of the child in the womb, and about the consequences of abortion for women and men, and the effects of abortion on families, on the medical profession, and on society more broadly, that will ultimately enable us to build a culture of life---a culture in which, as Fr. Richard John Neuhaus prayed, "every child will be protected by law and welcomed in life."
Professor Tollefsen is, I believe, profoundly right that we must not permit our cause to be sullied by lying. We must not abandon faith in the power of truth to transform those who oppose us in the great struggle over the protection of human life in all stages and conditions. We must not forfeit our standing in the debate as the tellers of truth.
Does this place us at a disadvantage in the struggle? Someone will say: the entire edifice of abortion is built on a foundation of lies---lies about the the biological status of the human being developing in the womb ("a mere clump of undifferentiated tissue, no different than a mole or a fingernail"); lies about the number of maternal deaths from illegal abortions prior to Roe v. Wade; lies about the so-called "medical necessity" of partial-birth abortions; and on and on. Why should we deny ourselves the use of weapons that many on the other side wield freely? Do we not deeply disadvantage our cause and, in that way, sin against its unborn victims by refusing to lie? Are we "keeping our hands clean" at the price of putting off the day when outfits like Planned Parenthood will be dumped onto the ash heap of history?
I understand the impatience; indeed, I share it. The edifice of abortion is indeed built on a foundation of lies. And in working to protect the victims of abortion, it is frustrating to hold ourselves to standards that so many on the other side freely disregard. But there are no moral shortcuts to victory in this struggle. A culture of life can only be built on a foundation of truth. Lying may produce short term victories, but it will, in the end, frustrate our long term objective. Respect for life---like respect for every other great human good and every other high moral principle---depends on love of truth. Our efforts in the cause of life and every other worthy goal will, in the end, prove to be self-defeating if they undermine love of truth.
Monday, February 14, 2011
An announcement of possible interest:
The Notre Dame Fund to Protect Human Life is proud to announce the inaugural Notre Dame Vita Institute to be held at the University of Notre Dame from June 12-24, 2011. Conducted under the auspices of the Notre Dame Center for Ethics and Culture, the Vita Institute will educate participants in the fundamentals of human life issues, focusing on beginning of life issues, at the highest academic level from the perspectives of social science, biology, philosophy, theology, law, communication, and counseling, among others. Through the instruction by and engagement with premier faculty, discussion with other Vita Institute participants, and introduction to community outreach programs, Vita Institute participants will be challenged intellectually and equipped to effectively engage the culture on beginning of life issues. The Vita Institute seeks both to educate and inspire its participants through instruction by noted experts in a strong community environment.
Admission to the Vita Institute is open to those with a bachelor’s degree or its equivalent, and applications are welcome from those of any age or level of professional development who are passionately committed to the protection of human life, particularly in its earliest stages. A distinctly Catholic educational program, the Vita Institute welcomes participants of all faith traditions. Applicants will be competing for a limited number of seats in the Vita Institute by completing an application and submitting letters of recommendation.
The application deadline is March 1, 2011.
The following will be provided to participants during the inaugural Vita Institute:
A tuition waiver ($1,000);
Lodging;
Specified meals; and
Curricular materials.
For more information and to apply to the Notre Dame Vita Institute:
Please visit the Notre Dame Fund to Protect Human Life website, http://www.nd.edu/~lifefund/ , or contact Angela Pfister, Notre Dame Center for Ethics & Culture, University of Notre Dame, 424 Geddes Hall, Notre Dame, IN 46556; [email protected], 574.631.1868.
This upcoming conference, at Notre Dame, might be of interest:
The core purpose of the Dear Brothers and Sisters Conference is to intellectually explore the thematic social issues that have been addressed by modern Catholic social thought by assembling some of the most respected experts in Catholic social ethics. In order to garner original and creative insights of the topics, we are posing to the scholars, “If you were Pope, what social issue would you address with an encyclical and what would you prescribe?” Some of the issues we hope would be addressed include: ecology, capital punishment, immigration/globalization, gender and race, peace, and human and economic development. The primary audiences would be the general undergraduate population and all faculty on campuses that seek to integrate Catholic social teaching into their courses or have a more thorough understanding of social action intellectualism as part of Catholic identity. . . .
Pepperdine's Nootbaar Institute is hosting what looks to be a great conference, on February 25:
On Friday, Feb. 25, Pepperdine University School of Law will host some of the world’s leading minds and practitioners on international religious freedom. Congressman Frank Wolf, a champion for religious freedom, will deliver a keynote message, as well as Dr. Suzan Johnson-Cook, who was President Obama’s nominee for U.S. Ambassador-At-Large for International Religious Freedom.
Throughout the day, panels will include topics such as “The State and Impact of International Religious Freedom,” “Foundations for Religious Freedom,” and “Responding to Religious Freedom.” We will also hear stories from witnesses who have experienced the struggle of religious freedom.
Breakfast will begin at 8 a.m. with the conference starting at 8:45. The conference will close with a reception at 5:30 following Congressman Wolf’s keynote speech. The conference is free to attend, but registration is required. Breakfast and lunch are available upon registration for a fee of $30. MCLE credit is also available.
Please register and view the complete schedule at: http://www.acteva.com/booking.cfm?bevaid=215575
There have been a number of posts recently at Public Discourse on the morality of the tactics employed by "Live Action" to catch Planned Parenthood workers doing and saying bad things on camera. The latest, by Prof. Christopher Tollefsen, is called "Why lying is always wrong", and it is here. He is responding to, inter alia, this piece by Prof. Christopher Kaczor.
There's a lot going on in these essays; I would urge readers and bloggers to read the whole things. Certainly, a number of very learned people have held, and hold, the view that Prof. Tollefsen sets out, namely, that it is always wrong to lie. To make a long story short (again, read the whole things), lying is always wrong because "all lies are unloving. . . . [They] are incompatible in the deepest way with a will towards communion with others, which must always be founded on truth, both generally speaking (for falsehood does indeed bring with it many pernicious consequences for a community), and, more specifically, the truth of persons."
To his credit, Prof. Tollefsen concedes that his position "could not easily be adhered to." Indeed, it could not. As he notes, his view seems to lead to the conclusions that, say, the "practices of undercover work, espionage work, and other forms of journalistic, police, and governmental work that might require lying" are also wrong. (Telling one's child that the present she is opening on Christmas morning was brought by "Santa Claus" is, I guess, also immoral?)
I'm pretty sure I'm not a consequentialist; that is, I do not believe that what renders an act "right" is the fact that it has welfare-enhancing consequences and I agree (I assume) with Tollefsen that an argument is not refuted simply by noting that among the consequences of its being correct are many costs and inconveniences. But, I guess I'm kidding myself, because I don't find myself much moved by Tollefsen's arguments (and, it appears, St. Thomas's and St. Augustine's!) here.
Maybe my reservations are not "consequentialist" ones; maybe, instead, they reflect different judgments on my part about what counts as a "lie" -- I'm not sure. Maybe my head is just too small: the distinction between a military feint (designed to trick the enemy into thinking that one intends to do X with one's forces when one really intends to do Y), which is apparently permissible, and going undercover to buy methamphetamine (and, in the course of so doing, lying about who one is), which is said to be impermissible, is hard for me to grasp.
Anyway, and again: Read the essays, and see what you think.
Sunday, February 13, 2011
I have recently started my first read of Nigel Simmond’s 2007 book Law as Moral Idea. Professor Simmonds is Reader in Jurisprudence at Cambridge University’s faculty of law where he is also Director of Studies in Law. So far, it is a fascinating and illuminating read. On the plus side, Simmonds takes to task a number of prominent contemporary legal theorists who maintain the H.L.A. Hart dichotomy of law and morality. As Simmonds argues, “Only in the union of legality and justice is either idea fully realizable.”
One of the drawbacks of his impressive work, however, is his strong reliance on Kant and Hobbes as sources of theory that link law and morality. They are relevant, but they are not the only voices who should be considered in such an important discussion. It strikes me that many Catholic theorists of earlier and present-day periods have contributed much to this debate. However, they are conspicuous by their absence in Professor’s Simmonds discussion.
One thing that I can do besides offer a lament is to intensify my work in prominently featuring the (Catholic) voices that argue and justify the necessary link between law and morality.
RJA sj
I admire and respect Noah Feldman's writing on the religion clauses. I think that his piece on the intellectual origins of the Establishment Clause was extremely well done. While I don't agree with many of the claims in "Divided by God," particularly the "and what we should do about it" prescriptions, and while I don't think that at least some of the arguments in the book are original to Feldman, I thought the book was well done overall.
Which is why I am sorry to see another op-ed piece by Feldman that advocates a politicized judiciary and extols the virtues of Supreme Court justices who "play politics" (here are my previous thoughts -- mostly negative -- on similar views of his in Slate). Feldman writes that the recent criticisms of Justices Scalia and Thomas for entering too much into the political fray fail to account for the fact that past Justices were not at all shy about their political attachments and biases. His evidence consists primarily of Justices in history who resigned their positions to pursue political office (Justice Charles Evans Hughes) or who were unsuccessfully recruited to do so (Justice Douglas). He points to Justice Jackson's decision to suspend his judicial duties to take on the Nuremberg prosecutions and to Justice Owen Roberts's chairmanship of a commission investigating the Pearl Harbor attacks.
These political experiences, says Feldman, because they were obtained during the course of judicial tenure, enriched the Justices later opinions. Feldman doesn't quite say that it was exactly because of his political experiences that Justice Jackson wrote the opinion he did in Eisentrager, but he comes close. I have no objection to the idea that a judge's experiences, political and otherwise, will influence his or her judgment. But he draws strange conclusions from something like the obverse claim -- that non-political Justices make distant and isolated decisions -- in the following:
Isolated justices make isolated decisions. It is difficult to imagine justices who drank regularly with presidents deciding that a lawsuit against a sitting executive could go forward while he was in office, or imagining that the suit would not take up much of the president’s time. Yet that is precisely what the court did by a 9-to-0 vote in the 1997 case of Clinton v. Jones. The court’s mistaken practical judgment opened the door to President Bill Clinton’s testimony about Monica Lewinsky and the resulting impeachment that preoccupied the government for more than two years as Osama bin Laden laid his plans.
I don't understand this argument, or if I do understand it, I wish I didn't. Is Feldman saying that had the Justices understood what it's like to be President, they wouldn't have ruled the way they did in Clinton v. Jones? My initial response is to wonder why not? What difference should it make that some of the Justices were, or were not, drinking buddies of President Clinton when that case was decided? Does Feldman think that their positive or negative relationship with Clinton ought to have affected their judgment? Should the Justices have realized -- in virtue of their keen political sense -- that a decision against Clinton would empower Osama bin Laden, and that they ought therefore to decide accordingly? Long live Judge Handy.
In much of the rest of the piece, Feldman criticizes conservatives for casting a skeptical eye at liberal Justices who hobnob with liberal opinion-makers, and liberals who do the same for conservative Justices. I suppose this is intended to lend the piece an air of even-handedness. But, in my view, it masks an objectionable view of the nature of judging. Judging is an activity in some sense, at least aspirationally, set apart and removed from the push and pull of politics. Of course it is true that judges are not and cannot be completely isolated from the political world that the rest of us inhabit. Of course. But it's one thing to recognize that fact and nevertheless aspire to a different ideal, and it's quite another to ridicule the aspiration to judicial integrity and the distinctness -- which is to say, the separateness, and in some fundamental way, the isolation -- of legal judgment from the political world.
It's all too easy to mock "medieval vestments" and "monk"-ishness: like shooting fish in a populist barrel. More important, the argument that throwing off these trappings of a backward set of ideals and aspirations would actually improve the law, let alone the regard in which judges are held, seems dead wrong to me.
