Following up on Mike's post below, I also thought that this column, "If It Feels Right...," by David Brooks about a study by Christian Smith (Notre Dame) involving the moral sensibilities of young people was interesting. Some of the findings are roughly consonant with what I have observed anecdotally in my Professional Responsibility classes, a watery libertarianism -- the loose and somewhat quick, but nonetheless entrenched, sense that it is generally inappropriate, or at least bad form, to tell others how to act appropriately -- the 'who-am-I-to-tell-others?' reflex answer, which now elicits my own semi-automatistic 'who-do-you-have to-be?' response. Part of the reason I enjoy teaching criminal law is the ineradicably interdictory quality of the course: we seem to be able to agree that murder and rape are wrong (though, from the study, it doesn't look like we can agree any longer about the morality of drunk driving, or cheating in various contexts).
But one feature of Brooks's column surprised me:"When asked to describe a moral dilemma they had faced, two-thirds of the young people either couldn't answer the question or described problems that are not moral at all, like whether they could afford to rent an apartment or whether they had enough quarters to feed the meter at a parking spot." One would have to read the study itself, as this might have something to do with the subjects not understanding what was meant by a moral dilemma, but I would have thought that the moral dilemma was a fairly hearty perennial. Yet, if this study is accepted, it seems that people may be losing their sense of what a hard moral choice is, let alone the even harder choice between two conflicting and incompatible moral imperatives.
Traditionally, the moral dilemma has been analyzed as a phenomenon of Greek trage
dy and the modern period, with an unfortunate hop-scotch over the medieval period. Writers and thinkers in the medieval period, it has been assumed, had little to say about moral dilemmas. But in a new book that I have been greatly enjoying, Moral Dilemmas in Medieval Thought: From Gratian to Aquinas (discussed here), M.V. Dougherty explores the moral dilemma as considered by medieval writers. Perhaps the most fun and interesting of the chapters is one on the Majorcan Franciscan Raymond Lull, in which Lull, after disputing with himself for days and upon recognizing his inability to escape moral wrongdoing, reacts to the perplexity of the moral dilemma by turning to petitionary prayer. Professor Dougherty writes: "By the time Raymond turns to prayer, he does not expect an epistemic solution to his moral dilemma. That is, his perplexitas is not going to be solved with more information or the uncovering of some unconsidered alternative that he might pursue on his own accord. Lull's judgment that he is perplexus leads him to cease searching for ad intra resolutions, and he believes that only ad extra intervention by God will save him from moral wrongdoing." (98) The power of the moral dilemma on his mind was so great that Lull thought he could not be saved from it through his own resources. True or not, that condition of sensing that one could not do right in a particular situation of conflict speaks to the pungency with which the moral dilemma was at one time experienced. I highly recommend the book.
Thursday, September 8, 2011
One sometimes hears the clanging of warning bells that the country is headed toward "theocracy." But even if one defines a "theocracy" in comparatively capacious terms -- say, as a society which is influenced strongly by religious arguments in its public decision-making -- it seems that American Catholics are overwhelmingly oblivious to and uninterested in documents prepared by the United States Conference of Catholic Bishops dealing with Catholic teaching on political matters, documents which the USCCB prepares for every election cycle. My colleague Mark Movsesian has the details.
Following up on Rob's death penalty post, readers here may know that in Graham v. Florida, decided last year, the Court held that the Eighth Amendent prohibits the imposition of a sentence of life without the possibility of parole on a juvenile convicted of a non-homicide crime. This was a moment when Justice White's famous decision in Coker v. Georgia (as glossed in Kennedy v. LA) that the death penalty is a different sort of crime, requiring a categorical rule against its imposition in all cases but homicide, was seemingly rejected. The DP was no longer different; now LWOP, the second most serious punishment, was categorically different too for certain entire classes of criminal. The decision followed from the Court's seemingly expanding Eighth Amendment jurisprudence in, e.g., Roper v. Simmons, which held that it is cruel and unusual punishment to impose the death penalty on juveniles.
The obvious next move was to challenge LWOP for juveniles convicted of homicide offenses. But the 11th Circuit, in Loggins v. Thomas, released yesterday, rejected that argument. The procedural posture of this case is quite complex, but suffice it to say that on the facts, this looks like an exquisitely inauspicious case to make an argument for the extension of Graham. The defendant's conduct was barbaric -- atrocious in the extreme. You can find Judge Carnes's description of the events leading up to the victim's murder (and thereafter as well) at pp. 2-5.
The legal heart of the decision occurs at pp. 36 and following, and I want to note a couple of interesting features of the opinion.
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