I would like to thank Rick for his posting regarding his post on Christian Smith’s new book What Is A Person? A few years ago, I had the wonderful opportunity to address a similar question at St. Thomas University where I was graciously hosted by several of our Mirror of Justice friends at that fine institution. On that occasion, I acquainted the audience with the words of Blessed John XXIII who stated in Pacem in Terris, N. 9,
Any human society, if it is to be well-ordered and productive must lay down as a foundation this principle, namely, that every human being is a person, that is, his nature is endowed with intelligence and free will. Indeed, precisely because he is a person he has rights and obligations flowing directly and simultaneously from his rights and obligations flowing directly and simultaneously from his very nature. And as these rights and obligations are universal and inviolable so they cannot in any way be surrendered.
I have the impression that these words in the legal academy of today—and much of the rest of enlightened society—would sound strange. While there may be agreement on what is a human being, it appears that there is disagreement on what is a person. But the disagreement should not exist.
Why?
Blessed John has it right, and his words provide the means for understanding who is/what is the human person. As legal academics, we know that the positive law recognizes that there are two kinds of persons before the law—juridical and natural. In the context of the matter investigated by the Smith book, the inquiry concentrates on natural persons—you and me.
But what constitutes this entity we call the natural person?
Lawyers and the rest of society, surely since the 1973 decision in Roe, have been arguing over this and related issues for some time. It would also seem that the connection between rights or claims and obligations or responsibilities identified by Blessed John confound many, including some members of the academy. Of course the debates and disagreements that emerge from the juxtaposition of these two subjects, i.e., rights and obligations, were brought to a head in Dred Scott. There was no question that in reality Dred Scott was a person; however, the law, as formulated by five of the seven members of the Supreme Court (who, by the way were also persons) said otherwise. We sort of get that same conclusion, albeit in different wording, in Roe v. Wade from the majority opinion. What rights can a human being/human person claim, and what obligations are owed to this claimant? That is the question.
It took the Civil Rights amendments to the Constitution to address and correct Dred Scott. It will take something else to rectify Roe. While the law can define/redefine the juridical person which is, in essence, a legal fiction, should it be able to do the same regarding the natural person? In this context, the dissenting opinion of Judge Adrian Burke in Byrn v. New York City Health & Hospital Corp. explains well the limitations on the state to determine the reality of who is a natural person and therefore who should be such a person before the law. The implication of his dissent was that if the state could determine this matter by ignoring the reality of the human being, the basis for fundamental human rights would eventually be undermined by human whim and caprice. That is what happened in Roe. This is also what happened in the Germany of National Socialism and in the United States of the ante-bellum era. These historical contexts demonstrate how human law, when detached from right reason, can betray recognition of who is and must be considered a person. The failure to acknowledge the reality of the human being who is the human person brings to a head the relationship between rights and responsibilities noted by Blessed John.
The failure to understand this relationship which is crucial to answering who is the human person continues to the present day. What is needed to rectify this failure? The wisdom of right reason and objectivity to illuminate and chart our course so that we might better understand who is person is essential, and John XXIII understood this well and shows the path necessary to protect the most vulnerable members of our human family.
Why should we worry about them? Because they are us, and we are they. The right reason of the Silver and Golden Rules merge, make sense, and apply here: “Do to no one what you yourself dislike,” and “Do to others whatever you would have them do to you.” This is the complementarity of rights and obligations noted by Pope John. With these two rules and the assistance of John XXIII in mind, the convergence of God’s desires for the natural person and the human law will enable those engaged in the debates about who is person understand with greater wisdom what is at stake.
RJA sj
One of the many surprising aspects of the Oklahoma conference this year was the frequent discussion of technology. As Elizabeth observed, Meghan Ryan spoke of "scientific management" of criminal behavior. Lisa is referring to Meghan's useful description of the impact of new neuroanatomy for understanding and manipulating brain function and the challenges it poses in the criminal law area. Elizabeth didn't point out that Jeff Pojanowski referred to artificial intelligence and the post-human future in his talk. Steven Smith mentioned these aspects of Meghan's and Jeff's talks in his comments.
These challenging new developments portend many social problems that will become critical in the next few decades. As Rick suggests, conceptions of the person hold significance for moral issues because often these turn on questions about what human beings do, how they reason, and what resources they have available to alter themselves and their environment. Technologies that alter our understanding of person and allow for manipulation of personality will be among the most contentious because the go right to the core conception of what it is to be human.
Engaging others who have commitments to abstract conceptions of moral value that differ from substantially from those of Catholics was a central theme in the conference. For me, an important thought to emerge from our discussions, particularly following Elizabeth's presentation, was that one ought not engage others at levels of abstraction that exceed what is necessary for resolving immediate disputes. Which is to say, that since comprehensive normative claims about the person are not relevant to every dispute, prudential judgement should be employed to resolve disagreements without reference to them.
But, this suggests that the types of issues raised by the neuroscience and post-human issues that Meghan and Jeff pointed out are likely to be the most contentious in the future. Brain imaging technology and the ability to manipulate the mind through surgical and pharmacological intervention contributes immensely to the treatment of persons suffering from brain injury, disease, and mental illness. And, these treatments are of great moral worth. These technologies challenge the Catholic understanding of the person precisely because they sweep away what have been mysterious aspects of the mind. There seems little doubt that our understanding of the person will be enhanced by this work in the natural sciences, and yet it will challenge traditional understanding of the dignity and moral worth of the person.
I believe, as John Breen noted in his excellent presentation, that the Catholic faith has much to offer in guiding reason to wisdom. But, the future looks complex and challenging.
Friday, May 20, 2011
Kudos to Michael Scaperlanda and Brian McCall at the University of Oklahoma's College of Law for hosting a superb three days of scholarship and fellowship. The 6th Annual Conference of Catholic Legal Scholars, as Rick noted, began with an afternoon of thinking about Augustine with Duke theologian Paul Griffiths, and ended with a morning of thinking about the rhetorical smuggling of modern discourse with USD's Steve Smith, discussing his The Disenchantment of Secular Discourse. Purely as models of elegance -- in their writing, the clarity of their thought, and the manner of their engagement -- it's hard to top those two.
As usual, these meetings are marked by the communion and engagement of the audience, as well as the quality of the 'formal' presentations. Perhaps it has something to do with the opportunities for spiritual reflection (this year including a mass celebrated by UST's Reggie Whitt and Ignatian spiritual reflections led by Boston College's Greg Kalscheur), but the conversations after and between the panel presentations, both in the question and answer sessions and during the social times, are exceptionally rich and wide-ranging.
I was particularly intrigued by the conversation surrrounding the panel on "Forgiveness and Conversion: What should be the law's attitude toward and treatment of post-conviction criminals." Building naturally on Paul Griffith's remarks on Augustine's reflections about the role of mercy in intercessions of bishops on behalf of convicted persons in the Roman empire of the 400's, UST's Mark Osler talked about the shrinking sphere of mercy in our criminal system, including the decreasing invocation of pardon power by executives. UST's Susan Stabile added a fascinating reflection about the extent to which the expanding tort of 'negligent hiring' hinders the application of 'mercy' for convicted felons trying to reenter the workforce. And a relative newcomer to the legal academy, SMU's Meghan Ryan, offered some intriguing observations about developments in scientific 'management' of criminal behavior, and what those developments might mean for our concepts of culpability and rehabilitation.
Two other relative newcomers to the legal academy also offered excellent commentary on Steve Smith's book -- John Inazu (currently visiting at Duke, starting at Wash U this fall) suggested, among other things, that Steve should incorporate more Hauerwas, and Notre Dame's Jeff Pojanowski suggested Steve should incorporate more Scandinavian legal realists..... It was quite a conference!
Here is a nice interview with my friend and colleague, Christian Smith, about his new book, What Is a Person? A bit:
What is a person? And why does it matter how we answer that question?
Every social science explanation has operating in the background some idea or other of what human persons are, what motivates them, what we can expect of them. Sometimes that is explicit, often it is implicit. And the different concepts of persons assumed by social scientists have important consequences in governing the questions asked, sensitizing concepts employed, evidence gathered, and explanations formulated. We cannot put the question of personhood in a “black box” and really get anywhere. Personhood always matters. By my account, a person is “a conscious, reflexive, embodied, self-transcending center of subjective experience, durable identity, moral commitment, and social communication who — as the efficient cause of his or her own responsible actions and interactions — exercises complex capacities for agency and inter-subjectivity in order to develop and sustain his or her own incommunicable self in loving relationships with other personal selves and with the non-personal world.”
Persons are thus centers with purpose. If that is true, then it has consequences for the doing of sociology, and in other ways for the doing of science broadly. Different views of human personhood will provide us with different scientific interests, different professional moral and ethical sensibilities, different theoretical paradigms of explanation, and, ultimately, different visions of what comprises a good human existence which science ought to serve. In this sense, science is never autonomous or separable from basic questions of human personal being, existence, and interest. Therefore, if we get our view of personhood wrong, we run the risk of using science to achieve problematic, even destructively bad things. Good science must finally be built upon a good understanding of human personhood. . . .
Yup. As I put it, in this paper, "moral problems . . . are anthropological problems, because moral arguments are built, for the most part, on anthropological presuppositions. In other words, . . . our attempts at moral judgment tend to reflect our foundational assumptions about what it means to be human."
