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.

Saturday, August 20, 2011

Crimes Against Institutions (or, Of the Inequality of Law)

Why do we punish the murder of a member of Congress, or the President, or a police officer (and there are other examples) more harshly than we do the murder of an ordinary person?  This seems to be a fundamentally anti-egalitarian way to do things, and yet it is the way that we do them now.  What difference should the status of a victim make to the punishment of the offender?  The value of every human life is equal to the value of every other human life, isn't it?  Why shouldn't it then rub our collective rhubarb that punishment for the intentional taking of a life is not distributed equally?

The most common kind of answer to these questions is consequentialist.  We have a greater need to deter the murder of politicians or police officers than we do to deter other murders.  Society couldn't function properly (or perhaps even at all) if these kinds of killings occurred without harsh punishment, and we need to drive the point home with a punishment which is harsher than it would otherwise be.

This has never seemed a very compelling answer to me.  First, what we are really talking about is not the harsh punishment itself, but the extra quantum of differential harshness imposed for the taking of these lives.  As with all arguments from deterrence, I have to think that it is quite difficult to measure whether that extra quantum of punishment serves as any additional deterrent that has not already been generated by the severity of punishment for any other murder.  Second, there is something a little question-begging in the consequentialist answer.  What is it exactly about these sorts of crimes which hampers our, or "society's," capacity to function properly, and which therefore merits enhanced, and unequal, punishment?  What society-preserving quality is really at stake?

I want to suggest a fundamentally non-consequentialist reason to punish the murder of a politician, or a judge, or a police officer, or (more controversially), of a priest, or even of a mother or father, with greater -- and therefore unequal -- severity.  Crimes against these kinds of victims are not only individual crimes; they are also crimes against institutions.  The consequentialist argument for differential punishment in these kinds of cases, I want to say, depends on the valuation of certain social institutions as intrinsically worthwhile.  It is because those institutions are good that we rightly punish more severely those people who not only murder an individual, but in so doing strike a blow against a valued social institution.

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Advice to Catholic University Educators

Yesterday, Pope Benedict addressed young university professors at the Monastery of San Lorenzo while in Spain during his participation in the World Youth Day in Madrid. His address is HERE.

Although it is brief, the address contains some important thoughts for those of us who have dedicated our lives to tertiary and professional education. The pope’s words are all the more relevant as we begin a new academic year in which many of us wrestle with the objectives of our teaching, advising, and research. In addition, for those of us who may have the opportunity to consider new faculty hiring, the Holy Father’s words serve as a resource for considering the qualities of candidates who will be considered for faculty positions. Surely the pope’s thoughts about qualities for teaching also apply to us who are already teachers.

What are these qualities?

Pope Benedict begins by contending that a teacher has a responsibility to search for and disseminate the truth. For the Christian and Catholic, this truth is Jesus Christ, God incarnate. A person disposed to this has a solid chance of acknowledging and discussing with others the inextricable nexus between faith and reason. For the skeptic who may take issue with this assertion, one needs to take stock of the fact that the foundations of the great western universities of today rest on this nexus and search.

In addition, a further desirable quality related to the first is the zeal to engage colleagues in other disciplines which have a bearing on the fields of teaching and research that one pursues in his or her own work. Of course this engagement is not simply geared to self-improvement of the individual teacher. It also provides considerable benefit to the students by demonstrating that learning leads to knowledge and knowledge leads to wisdom about the nature and essence of the human person. This wisdom, moreover, enables a person to see the danger that inheres in the utilitarian fragmentation of knowledge that too often accompanies the work that takes place in universities today. Combating this academic fragmentation provides an important basis for helping teachers and students address the fundamental questions of education: who am I? What am I? What is my relation to the world and the university? What is my relation with others? What is my relation with God? Pope Benedict argues that the authentic educational enterprise is geared to pursuing these questions in order to save humanity from the “reductionist and curtailed vision” which is cultivated by academic disintegration.

Anoter question for ourselves and for those whom we consider to join our faculties is this: do we share in Benedict’s definition of the university as the “house” where the inhabitants seek “the truth proper to the human person”?

Once again, Papa Ratzinger provides the benefit of his many years of teaching experience in this wonderful address. Tolle lege!

 

RJA sj

 

"Catholic Education Matters"

As we start the new school year, it's a good time to read this very nice piece by my former student (and current Catholic-school teacher), Matt Emerson, at Patheos.  The essay is called "Catholic Education Matters."  Indeed, it does.

Friday, August 19, 2011

Two great pro-life pieces

Another excellent piece by the consistently-impressive Erika Bachiochi on Public Discourse today, 40 Years Later:  How to Undo the Automony Argument for Abortion Rights.  She notes that it's the 40th anniversary of Judith Jarvis Thompon's "violinist" argument for abortion rights, tracing the knots abortion rights advocates have gotten themselves in over the years clinging to that analogy.

Erika's piece also links to one by the equally consistently-impressive Helen Alvare, which I somehow missed when it appeared in January:  The Lazy Slander of the Pro-Life Cause.

If any of you are sending kids off to college in the next few weeks, do them a favor and make them read these columns -- it'll arm them with some powerful arguments for those late-night b.s. sessions.

Pope Benedict the XVI on Education

This article from Il Corriere Della Sera reports on a speech that the Pope gave to a number of young (under 40...that's young, right?) university professors at El Escorial Monastery near Madrid.  In the speech, the Pope spoke against an educational ethic of "utility and pragmatism," saying also (and...perhaps echoing Cardinal Newman) that "the true idea of a university preserves us from a reductive and distorted vision of humanity."  Education is not, he continued, "an arid communication of subtance, but instead the formation of young people which you [the professors] must undertake and research ["comprendere e ricercare"]."

Thursday, August 18, 2011

The Real Test of Pro-Choice Honesty

Jennifer Fulwiler comments on the same article in the NYT Magazine that Rob Vischer blogged about here at MOJ.  The Times article, The Two-Minus-One Pregnancy, is about couples who conceive twins through IVF and then (in the Orwellian terminology of the industry) “selectively reduce” the twins so that only a single gestating baby remains.  As the article makes clear, while it used to be the case that the procedure was reserved for “reducing” quadruplets (or more) to triplets, or triplets to twins, the practice has now become commonplace among IVF patients who do not want to give birth to anything other than a single child.

In her essay, What Pro-Choice Intellectual Honesty Looks Like, Fulwiler notes how some like Dr. Mark Evans, who pioneered the procedure and who once resisted performing it in the case of twins, came to understand that the women coming to see him “didn’t want to be in their 60s worrying about two tempestuous teenagers or two college-tuition bills” and that “many of the women were in second marriages, and while they wanted to create a child with the new spouse, they did not want two.”  Thus, she also notes how the new, more frequent use of the procedure in reducing twins to a singleton has little if anything to do with “health” – either with respect to the mother or the children she is carrying – and everything to do with life-style choices and expectations.

At the same time, and as the Times article makes clear, some physicians and medical staff who dutifully performed “reductions” in the case of quadruplets and triplets, refuse to do so in the case of twins on moral grounds since, according to Dr. Ronald Wapner, “There’s no medical justification in a normal twin pregnancy to reduce to one.”

Of course selectively practicing selective reduction makes no sense given the logic of the right to choose abortion.  There is no such thing as a sound or unsound reason, a better or worse motivation in the face of inviolable autonomy.  All reasons wither and fall before a “choice” that is its own justification.

Fulwiler concludes the post by thanking those women who agreed to tell their stories, and with the hope that pro-choice people will 

read those articles linked above, and listen to the stories of women going to abortion specialists and choosing sons over daughters, letting lifestyle considerations lead them to reduce three heartbeats on a screen to one. Because that is what pro-choice intellectual honesty looks like.

Although she doesn’t address it in the essay, I think that an even greater test of pro-choice honesty, intellectual or otherwise, will come when the truth about the woman’s pregnancy comes out and she must explain her actions to her children – to the older siblings that the couple may already have and to the surviving twin.  What will they tell these children?  What will a couple who has “selectively reduced” a pregnancy tell their children about what they chose to do to their sibling – their brother or sister in the womb – and why?

Given the views expressed by the different couples in the article, it is difficult to believe that they will not try to exonerate their chosen course of conduct, indeed, to portray it as virtuous, as the only reasonable alternative, as the only sensible and loving choice a responsible parent could have made.  This may be achieved by celebrating “choice” and glossing over the thing chosen.  As one mother who “reduced” her triplets to a single child says in the Times article, she “intends to tell her [now two-and-a-half year old daughter] about the reduction someday, to teach her that women have choices, even if they’re sometimes difficult.”

The doctors who perform “reductions” are partners in this process of exoneration.  As the Times article notes:

The doctors who do reductions sometimes sense their patients’ unease, and they work to assuage it. “I do spend quite a bit of time going through the medical risks of twins with them, because it takes away a little bit of the guilt they feel,” says Stone, the Mount Sinai doctor.

When the issue does arise the couple may mouth reasons already rehearsed in the article.  They may say that they did it out of love for them – for the older siblings and the surviving twin – so that they could afford to send them to college, so that they could spend more time with them growing up.  The fact that love is not a commodity – the central point of Rob’s post – may not resonate with them at so young an age, but they will come to appreciate it in time, causing them to doubt the wisdom of what was chosen – perhaps around the same time that the full worth and weight of the college tuition check Dad just cut hits home.

What is certain is that in explaining their actions to their kids, the couple who selectively aborts will not refer to their children as commodities or to the process of having children in the same crass terms of market and production articulated in the Times piece:

We created this child in such an artificial manner – in a test tube, choosing an egg donor, having an embryo placed in me – somehow, making  a decision about how many to carry seemed to be just another choice.  The pregnancy was all so consumerish to begin with, and this became yet another thing we could control.

That is, in talking to the reporter from the Times, these parents may feel free to be candid and so describe their children as commodities – to see them as things that are produced like widgets.  Nevertheless, they will not refer to their children as things when they look the widget in the eye in explaining their own birth and the “selective reduction” they survived.

Parents who selectively “reduce” may even deny that any “twin” was lost at all (N.B. “Lost,” as if it was only a set of car keys that had been misplaced and not a human being deliberately destroyed).  That is, they may insist that it was merely a clump of tissue that they chose to safely discard.  Given the curiosity of most children this excuse will likely be unavailing, leading as it does to the retort “But Mom, wasn’t I a clump of tissue too?”  And the reply “Oh, Honey, you were different!” will – if real honesty is brought to the table – lead to an uncomfortable exchange unveiling to these children the perilous nature of their own existence at the hands of those whom they love and trust the most.

Wesley Smith captures this point well in his commentary on the Times piece (available here).  There he recalls the first time he heard of the procedure at a bioethics conference and his response to both the euphemism “selective reduction” and to the claim that the procedure can be used to “reduce” triplets to twins:

“Selective reduction doesn’t turn triplets into ‘twins,’” I said.  “It kills one of the three siblings.  The remaining two are still triplets, only one is dead.  And if they ever find out, they will know that but for the luck of where the abortionist chose to put his tools, they might never have been born.”

Moreover, even if the surviving children are misled so as to spare their parents the indignation of being judged murders by their own offspring, as time passes the parental obfuscations of childhood will give way to the chilling reality revealed by the time the siblings enter their high school biology class (assuming of course that schools are still permitted to teach the inconvenient facts of science by the time these children reach adolescence).

All of this can be contrasted with another situation that calls for honesty but one that involves a very different choice.  This is the honesty that is called for when a child who is adopted by another family asks his or her birthmother “Why was I placed for adoption?”  A more direct way of posing the question is “Why did you place me for adoption?”  And behind this question other questions and suspicions of their standing in the world are lurking and begging for some response: “Why was I abandoned?” “Did you reject me?”

I know, both from my own experience with adoption and the experience of friends and family who are also adoptive parents, that situations can vary.  So honesty may require a somewhat different response in different circumstances.  But today, in a cultural setting that celebrates autonomy – including the autonomy to choose death for another – the honest answer of most birthmothers is “No, I did not reject you.  I love you, and I decided that the best and fullest expression of that love was to place you for adoption.”

The practical concerns that led to such a placement decision may have been quite similar to those of women who “selectively reduce” – a lack of familial or financial resources, the interruption of life plans and the frustration of expectations.  But, in the case of adoption, the birthmother responded to these circumstances with genuine honesty – an honesty that reflects both the truth of human life and the truth of human love.

Natural Law, "positivism", judging, etc.

This paper, by Michael Baur, is relevant to a number of MOJ posts and conversations about the role of judges, the extent to which they should (or must) identify and enforce the natural law, the work of Hadley Arkes and others, etc.  Among other things, Baur confirms as sound the view of my friend, Judge Diarmuid O'Scannlain, that there is a "third way" (between "positivism" and "aggressive" natural-law thinking) according to which:

judges may not look beyond the positive law in order to enforce what, in their own minds, is required by the natural law; however, judges working within the American tradition may legitimately appeal to natural law moral principles in their legal decision-making, since this sort of appeal is consistent with strict reliance on the positive law itself insofar as natural law moral principles are built into—or embedded within—American positive law itself. . . . 

UPDATE:  Link added. Sorry for the oversight!

"The Failure of Liberal Bioethics"

Ross Douthat reflects, here, on the recent (very troubling, I thought) NYT Magazine piece on "selective reduction."  He observes:

From embryo experimentation to selective reduction to the eugenic uses of abortion, liberals always promise to draw lines and then never actually manage to draw them. . . . [T]hey find reasons to embrace each new technological leap while promising to resist the next one — and then time passes, science marches on, and they find reasons why the next moral compromise, too, must be accepted for the greater good, or at least tolerated in the name of privacy and choice. You can always count on them to worry, often perceptively, about hypothetical evils, potential slips down the bioethical slope. But they’re either ineffectual or accommodating once an evil actually arrives. Tomorrow, they always say — tomorrow, we’ll draw the line. But tomorrow never comes.

Rick Perry talks climate change

I've long been depressed by the abortion-rights litmus test that operates in the Democratic Party, though the GOP seems to be racing to expand their own list of litmus tests, including a degree of skepticism toward the possibility of human-caused climate change that vastly outpaces the evidence.  Rick Perry's latest volley appears to be par for the course.  For a party with a proud history of environmental stewardship (see, e.g., Theodore Roosevelt) and a membership that includes many religious believers whose obligation to care for creation is God-given, this development is troubling. 

World Youth Day as financial racket

The indispensable Get Religion blog tackles the media coverage of World Youth Day.