This new paper, "The Moral Subject of Property," by Carol Rose, looks really interesting. Here is the abstract:
What kind of person is presupposed by property law? This paper, written for a symposium on the morality of law, investigates the morality that is expected of participants in property regimes, and it argues that property presupposes a "second-best" morality. The presumptive property subject is a self-interested being, but also one who has a modicum of cooperativeness. But is such a second-best morality good enough to command respect? Critics complain that it is not, and that property concedes too much to human self-interest. This paper explores three areas where this critique arises: the claims that initial acquisitions are based on wrongful behavior, thus tainting subsequent ownership; that property results in unequal distributions of wealth; and that commercial property's alienability corrupts the human understanding of love, generosity and good civic behavior. The usual property-based answer to these critiques is that property nevertheless makes us all better off. Thus claims and responses do not meet, with one side speaking of personal morality and the other referring to the public welfare. Nevertheless there are several ways in which property's more forgiving second-best standard may also call into question the personal moral character of a more demanding first-best standard.
I appreciate Eduardo's response to my post about Rauch's review of Ponnuru's book. (That sentence is a parody of blogging, isn't it?)
That said, the force of Eduardo's and Rauch's critique continues to elude me. That is, I do not see why those who believe -- as I do, and as Ponnuru does, and as Eduardo does -- that abortion generally involves wrongful homicide, and that our Nation's tolerance (let alone constitutionalization and celebration) of private violence against unborn children is shameful, are therefore required, for consistency's sake, to believe that women who have abortions, or doctors who perform them, should be punished in the same way and with the same severity as are persons who "murder" adults. Nor do I see why those who believe that abortion generally involves wrongful homicide are therefore required, for consistency's sake, to "fire-bomb[] . . . abortion clinics" or take to the streets.
Eduardo writes:
But if abortion is murder, then the scale of the injustice being perpetrated on a daily basis in our country alone (not to mention the world) is truly staggering. Over six million innocent human lives have been intentionally taken in the United States under the Bush presidency alone. Why does President Bush get a pass for this? No doubt some will point towards his rhetoric of life and the limited actions he has taken, which admittedly would not have been taken under a different administration. But if abortion is mass murder on the scale of a Holocaust every eight years, shouldn't he be doing more? Where is the sense of urgency? If abortion is mass murder, the President should be filibustering, refusing to talk about anything else, shutting the federal government down until he gets his way, not taking his eye of the ball and fighting wars in Iraq, negotiating trade agreements, cutting taxes, or making speeches about the problems with social security.
Well, I suppose one reason why "Bush [might] get a pass" on this is because he is, in fact, doing what can be done, within the constraints of horribly misguided constitutional law, to change people's minds about abortion, and thereby hastening the day when the wrong of abortion will be as clear to most people as it is to Eduardo and me. Eduardo knows as well as I do that "filibustering," etc. would be, given the givens, utterly useless. I do not see why those who believe that abortion is wrongful homicide are required to indulge in useless (indeed, counterproductive) dramatics, even when the wrong being combatted is as great as this one, when smaller steps hold out the promise of actually changing people's minds.
I am inclined to agree with Eduardo that there is a difference -- one that is relevant to the perpetrator's culpability and deserved punishment -- between procuring or performing an abortion and maliciously causing the death of an adult. True, both involve the deaths of human beings, and both are wrong. But, it seems to me, the state-of-mind, or mens rea is almost certainly different (if only because the humanity of the victim, and therefore the wrongfulness of the conduct, is impossible to avoid in the latter situation), and so it does not seem to me odd, or hypocritical, to concede (as Ponnuru does) that the law may treat them differently.
THROUGH WORK man must earn his daily bread and contribute to the continual advance of science and technology and, above all, to elevating unceasingly the cultural and moral level of the society within which he lives in community with those who belong to the same family. And work means any activity by man, whether manual or intellectual, whatever its nature or circumstances; it means any human activity that can and must be recognized as work, in the midst of all the many activities of which man is capable and to which he is predisposed by his very nature, by virtue of humanity itself. Man is made to be in the visible universe an image and likeness of God himself, and he is placed in it in order to subdue the earth. From the beginning therefore he is called to work. Work is one of the characteristics that distinguish man from the rest of creatures, whose activity for sustaining their lives cannot be called work. Only man is capable of work, and only man works, at the same time by work occupying his existence on earth. Thus work bears a particular mark of man and of humanity, the mark of a person operating within a community of persons. And this mark decides its interior characteristics; in a sense it constitutes its very nature.
Today's New York Times features this review, by Jonathan Rauch, of Ramesh Ponnuru's book, "The Party of Death." The review -- critical in places, appreciative in others -- is admirably fair and serious. Rauch's primary criticism seems to be that Ponnuru refuses to embrace the implications of his own pro-life position:
“Eight-week-old fetuses do not differ from 10-day-old babies in any way that would justify killing the former,” he writes. “The law will either treat the fetus as a human being with a right to be protected from unjust killing or it will not.” If those are the only choices, and if the right position is that an early-term fetus is a full-fledged person, why not impose jail terms on women who seek abortions? After all, they are taking out a contract for murder. Instead of confronting that question, Ponnuru equivocates, mumbling that “the pro-life movement” does not necessarily seek jail time for women and that fining doctors and revoking medical licenses might suffice.
He believes that discarding or destroying embryos should be forbidden, but should it be punishable as first-degree murder? If not, why not? If an embryo is morally indistinguishable from a newborn, then killing it is surely a heinous crime. If human life is “inviolable,” then why should it matter whether a hopelessly vegetative patient — someone like Terri Schiavo — left instructions not to be fed? Surely, from Ponnuru’s perspective, the doctors caring for her cannot ethically conspire to starve her to death even if she would prefer to die. If every abortion is infanticide, could even the most life-threatening pregnancy be ended? We don’t have a “health exception” to the murder laws.
I'd welcome correction from the moral philosophers who read MOJ, but -- I have to admit -- Rauch's objection here has never seemed as powerful to me as it does to others. The fact is, our law treats homicides differently, in all kinds of ways. So, why would a decision not to treat a homicide involving the death of an 8-week-old human fetus exactly like a homicide involving the death of a 36-week-old fetus, or a two-day-old infant, or a 36-year-old woman necessarily reflect the view that the 8-week-old fetus is not actually a "human being"?
Thursday, September 21, 2006: Faithful Citizenship This year's Catholic Lawyer's Program explores the legal, ethical and cultural implications of bringing Catholic values and social teaching into public life. For the first in the series, Professor Robert K. Vischer of the University of St. Thomas School of Law will address the topic "When Conscience Clashes with State Law & Policy." He will discuss in particular the distinctions between the roles of lawyers and judges. The event will take place from 6:00 - 7:45 p.m. at Fordham University School of Law, 140 West 62nd Street. Admission is free to the public; $65 processing fee ($55 / Fordham Alumni) to receive 2 non-transitional CLE ethics credits. For more information and to register www.law.fordham.edu Click "Continuing Legal Ed"; conferences/lectures/CLE; or email [email protected].
Many of our discussions here at MOJ have focused on, or at least touched on, questions concerning the role, purpose, and identity of universities. So, this new group blog -- hosted by The New Republic -- might be of interest. It's called "The Open University." Here is how the bloggers describe the enterprise:
To the best of our knowledge, this blog is unlike any other out there. It's dedicated to thinking about not just the news of the day but also the news from the academy: Controversies in campus politics that warrant thoughtful discussion. Scholarship from our various disciplines that we think deserves a broader hearing. Ideas we had in doing our research that seem eerily relevant to something we read in The New York Times today. Our bloggers range widely over the political spectrum. They include both novices and old hands (as well as chastened dabblers like me).
Contributors include Cass Sunstein, Alan Wolfe, Lawrence Summers, Sandy Levinson, Jacob Levy, and many more. Check it out!
"The point that the Holy See maintains is non-negotiable is complete freedom of the appointment and activity of the bishops. 'No agreement at all is better than a bad agreement,' says cardinal Zen’s trusted expert." Sandro Magister has more on the Holy See's diplomatic efforts to secure the Church's freedom in China.
California Governor Signs GLBT Bias Bill With No Religious Exception
In California, the Campaign for Children and Families is criticizing Gov. Arnold Schwarzenegger's signing on Monday of SB 1441 that adds "sexual orientation" to the law that prohibits discrimination by any program that receives state financial assistance. Critics are concerned that there is no exception for religiously affiliated institutions. Religiously affiliated colleges enroll students who receive state financial aid, and many religiously affiliated children's day care centers and after-school programs receive state aid. CNSNews today, reporting on these developments, says that other bills calling for equal treatment of gays and lesbians are also pending in the California legislature.
In the blogs and on the op-ed pages, it looks like the "Wal-Mart Debate" is heating up. Our own Steve Bainbridge has some interesting thoughts on the matter, here.
