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.

Friday, August 25, 2006

Experimenting on prisoners

By Rick Garnett

The New York Times reported, a few weeks ago, that "[a]n influential federal panel of medical advisers has recommended that the government loosen regulations that severely limit the testing of pharmaceuticals on prison inmates, a practice that was all but stopped three decades ago after revelations of abuse."

One of my first law review articles was about human experimentation and autonomy-based ethics.  The cite is "Why Informed Consent?  Human Experimentation and the Ethics of Autonomy," 36 Cath. Lawyer (now the Journal of Catholic Legal Studies) 455 (1996).  Here is the introduction (sorry for the long post).  I'd welcome readers' and bloggers' thoughts:

[C]onsent enjoys talismanic--if not sacramental--status in modern life and thought; it is our "master concept."  But why? Why should consenting mean so much that by comparison other ideas and ideals often mean so little?  The power of consent lies deeper than its everyday meaning of "Sure, go ahead" or "Let's do it."  It prompts more questions than it answers: May someone else say, "Sure, go ahead. Do something to him?" If I consent to something now, am I forever stuck with or bound by my choice? May I delegate my power to consent or assign my consent's moral force to someone else? May I consent to anything I wish? Can everybody provide morally meaningful consent, or only those who possess or exhibit autonomy (whatever that means)?

Such questions have always prompted frustratingly interminable discussion. But we continue to wrestle with them because consent and its mysteries have "an extraordinarily firm hold on our imagination.... [Consent] provides perhaps the single most prevalent paradigm structuring our thinking about law, society, morality and politics."  Consent also animates other cherished but nebulous concepts. It is intimately connected to our ideas of "liberty" (I may do what I choose to do, and may refuse to consent to actions in which I do not wish to be involved); "equality" (we all get to consent); "autonomy" (I and only I may make these choices and decisions); and "dignity" (I may make these decisions because of who and what I am).


Perhaps because consent is so embedded in our moral thinking, we put it to at least two different tasks. First, consent is a basic and fundamental prerequisite of our political and social institutions and of our dealings with one another.  We have lost the premodern vision of the world as an organic whole, and so consent, rather than nature or design, structures the coming together, binding together, and living together of modern masterless men.  This side of consent animates the political "consent theory" and permeates the rhetoric and myths of the American founding.  It is a necessary first condition for the legitimacy of the institution or end-state that proceeds from the act of consenting.

Consent has another job. The fact that a certain institution, result, procedure, or transaction was consented to is often pointed to as the moral justification for that institution, result, procedure, or transaction. Thus, not only is consent necessary for a moral end-state, it is also sufficient.  Consent not only legitimates, it also justifies. Not surprisingly, this is the face of consent that resonates with libertarians and libertines.  This "justifying" side of consent raises some timeless and thorny questions. What if people consent to activities and results which are repugnant, or even evil? Even John Stuart Mill worried about honoring consensual slavery.  For Mill, one who enslaved himself failed to play by the rules, "missed the point" of his freedom, and could therefore be restrained without disrespect to Liberty. Today, we wonder whether a woman's consent to appear in graphic, demeaning, or even violent pornography justifies or immunizes the pornographer.  If she appears to consent to a relationship in which she is repeatedly brutalized, does her consent stymie our efforts to stop the brutality or punish the brute?

These problems make us squirm a little, just as they did Mill. We have three ways out: We can say, first, "Yes, consent justifies whatever is consented to--you consented, so case closed;" second, "This particular consent is deficient--you did not really consent and so the result or action is not justified;" or third, "You consented, but your consent cannot justify this action or result." For example, Dr. Kevorkian apparently elicits consent from his subjects before helping them kill themselves.  We can note the consent, shrug, and be on our way. Or, we can deconstruct the consent, scrutinizing it carefully for the indicia of autonomy--was it "knowing?," was it "informed?"--that give consent its moral force. Finally, we can say that while consent is not irrelevant (it would certainly be worse if Dr. Kevorkian's subjects did not consent), the consent does not and cannot justify either Dr. Kevorkian's act or the act of his subject.

Note the subtle yet crucial difference between these three options: In the first, consent is king, while the third option assumes a moral universe shaped and governed by extra-consensual considerations. The second option, however, reflects the tension between the other two. We might block the consented-to action, but we pay lip service to consent's justifying role by assuring ourselves that had the consent been untainted, had it been "informed," it would have had moral force. In fact, we pay lip service precisely because we often silently suspect that consent cannot and does not always justify.  Therefore, in difficult situations, we declare that the decision maker did not or could not really consent, that the consent was not "informed" or "knowing" or "voluntary."  Rather than admit that the consent does not and could not justify the act, we denigrate the consent and, necessarily, the consenter as well.

This is cheating; it is a subterfuge designed to hide our unease and to allow us to profess simultaneous commitment to values that often conflict. . . .

Returning to the question posed at the outset: Why does consent have such moral power? Accept for now that our deference to consent is--perhaps mistakenly--rooted in a commitment to human dignity, expressed through respect for autonomy.  Is consent's justifying role necessarily required by this commitment to human dignity? Why have we come to think that it is? Does our dignity as persons follow from, or does it instead create and condition, our autonomy? Do we respect consent because one feature of our dignity is that we always know what is best for us? Clearly we do not . . ..

Perhaps, instead, the full brunt of the evil of which we are capable--so evident in this century of ghettoes, concentration camps, killing fields, cultural revolution, eugenics, and ethnic cleansing--coupled with the modern vision of human society as an aggregate of atomistic individuals rather than an organic whole, has left us standing bare and exposed, with no reply to or protection from such atrocities other than a weak and hollow insistence that, in the future, "we must consent first!"  The presence of consent has thus become the assurance to ourselves that all is well. It is a marker which--we hope--indicates acceptable human relations.  But of course it does not, and so our reliance on consent is all the more poignant a subterfuge.  If consent's power to justify derives from a weary reaction to evil in an overly-individualistic world, and not from a commitment to social relations predicated on respect for human dignity, we are doomed to disappointment, and we have failed as a community.

Libertarian theories of law

By Rick Garnett

The "bad guy" in many conversations I've had about things Catholic-legal-theory-ish is "libertarianism."  It's not always clear, though, what is meant by "libertarianism."  So, Larry Solum to the rescue, with a helpful post on "libertarian theories of law."  Here is -- as he often says -- a "taste":

The dominant approaches to normative legal theory in the American legal academy converge on fairly robust role for the state and government subject to the constraints imposed by an equally robust set of individual rights. Normative legal theorists of all stripes--conservatives and liberals, welfarists and deontologists—tend to agree that the institution of law is fundamentally legitimate and that the legal regulation has a large role to play. There is, however, a counter-tradition in legal theory that challenges the legitimacy of law and contends that the role of law should be narrowly confined. . . .

What is the proper role of government?” and “When is coercive legislation legitimate?” Theories at this level of abstraction need foundations of some sort, either deep foundations in comprehensive moral theories like utilitarianism or shallow foundations that explain why deeper foundations are unnecessary. . . .

[Solum then sketches libertarianism's consequentialist, deontological, and pluralist foundations.  Here is what he has to say about the latter:]

There is an obvious problem with locating the foundations of a political theory, like libertarianism, in a deeper moral theory, such as some form of deontology or consequentialism. In a pluralist society, it seems very unlikely that any one view about morality will ever become the dominant view. Instead, modern pluralist societies are usually characterized by persistent disagreements about deep moral questions. If a particular form of libertarianism rests on deep moral foundations, then most of us will reject that form of utilitarianism, because we reject the foundations. One alternative would be to try to argue for libertarianism on the basis all of the different moral theories, but that is obviously a very time-consuming and difficult task. Another approach would be to articulate shallow foundations for utilitarianism—foundations that are “modular” in the sense that they could be incorporated into many different comprehensive theories of morality. This general strategy was pioneered by the liberal political philosopher, John Rawls—himself, of course, no libertarian.

One contemporary libertarian legal theorist who has pursued the pluralist strategy is Randy Barnett. In his book, The Structure of Liberty, Barnett argues that anyone who wishes to pursue their own interests—whatever those might be-- have good reasons to affirm a generally libertarian framework for government. Barnett’s case for libertarianism is complex, but his basic idea is that human nature and circumstances are such that the law must establish and protect property rights and liberty of contract. The key to Barnett’s argument is his identification of what he calls the problems of knowledge, interest, and power. For example, the problems of knowledge include the fact that each individual has knowledge of his or her circumstances that are relevant to how resources can best be utilized. This fact, combined with others, make decentralized control of resources through a private property regime superior to a centralized command and control system. For our purposes, it is not the details for Barnett’s argument, but his general strategy that is important: Barnett attempts to create a case for libertarianism that does not depend on either consequentialist or deontological moral theory.

I think this is very helpful.

Regionalism and anti-Progressive Populism

By Rick Garnett

Here is an interesting, provocative op-ed by Caleb Stegall, of The New Pantagruel (link) on the need for a new (or, actually, an older) kind of "populism."  It touches on some of the same themes as does Rod Dreher's "Crunchy Con's" work and also the "distributivist" strand of Catholic social thinking.  Here is a bit:

What would this kind of regional populism look like in an actual political platform? Broadly speaking, it would seek at every turn to end the dependence of its constituents on elites. It would oppose, for example, the nationalization of any sector of our economy, from health care to agriculture. Instead, it would seek creative ways to open regional markets for regional goods.

It would seek to permit regional cultural and religious particularities to emerge from the fog of federalized regulation and be made manifest in our schools, courthouses, businesses and civic organizations. And it would provide incentives to keep cultural capital local. It would encourage people to work, study and raise families close to where they grew up. It would seek ways to promote local culture and would cultivate loyalty to our neighbors and a fierce love for our own places.

But in the end, what this kind of vibrant regionalism requires is something much more difficult to obtain than a slogan. It is a renewed appreciation for society over and against both the individual and the state. Society defined by what the agrarian essayist Wendell Berry calls "membership" – a network of social interconnectedness and shared obligation. To be a member of this kind of social order is the best hedge against manipulation by the central planning committee for "growth" and "prosperity." It is, to put it plainly, to be free.

As I've said before, I am really torn by these kinds of arguments and calls.  I'm all for rootedness and place.  At the same time, writers and thinkers like Stegall sometimes -- it seems to me -- overlook how important and liberating -- in an authentic, good sense -- it has been for so many people to be able to leave, move, and change.  That is, there is a danger in romanticizing rootedness.  Alan Ehrenhalt captured this danger well, I think, in "The Lost City:  The Forgotten Virtues of Community in America."

Ross Douthat discusses Stegall's piece, and links to other discussions, here.

"Social Reproduction" and religious freedom

By Rick Garnett

Josh Chafetz, a student at Yale Law School, has posted a paper called "Social Reproduction and Religious Reproduction:  A Democratic-Communitarian Analysis of the Yoder Problem."  Here is the abstract:

In 1972, Wisconsin v. Yoder presented the Supreme Court with a sharp clash between the state's interest in social reproduction through education --that is, society's interest in using the educational system to perpetuate its collective way of life among the next generation - and the parents' interest in religious reproduction - that is, their interest in passing their religious beliefs on to their children. This Article will take up the challenge of that clash, a clash which continues to be central to current debates over issues like intelligent design in the classroom. This Article engages with the competing theories put forward by scholars and judges who believe in a broad right of religious reproduction, trumping the state's interest in social reproduction, as well as those who believe that the interest in social reproduction should trump contrary claims by insular religious groups. The Article suggests that each of the major competing theories is fundamentally flawed and offers an alternative analysis based on communitarian and democratic values.

This democratic-communitarian view begins with the communitarian intuition that social subjects are constituted by multiple sources of value and that a rich diversity of value sources is important and worth fostering. Communitarian theory both recognizes the danger in allowing high-level value sources (that is, those value sources further from the individual) to become too thick and seeks to match social institutions to the values they are best able to promote. The role of education in our society suggests that it is uniquely well-situated to inculcate society-wide values. This conclusion combines with the democratic intuition that, in a democracy, decisions about the inculcation of social values can only legitimately be made by democratic means. The conclusion is that parents and courts are unjustified in interfering with social reproduction through schooling. However, communitarian theory also suggests that conscientious citizens and legislators should impose the minimum of constraints necessary to ensure the transmission of important communal values. That is, they should strongly consider democratically enacting the sorts of exemptions at issue in Yoder.

While I agree that exemptions of the kind at issue in Yoder are just, and should be embraced, I'm not sure about the conclusion that "parents and courts are unjustified in interfering with social reproduction through schooling."  Or, it seems that the attractiveness and persuasiveness of this conclusion would depend a lot on what "counts" as "interfering" and on what is the content of "social reproduction."  More generally, while it certainly strikes me as true that political communities have an "interest" in social reproduction, it is not quite right to reduce the religious freedom with which the government's interest is in tension to parents' "interest" in religious reproduction.

Of course, this takes us back to Jim Dwyer's work, and to the convesations we've had here about it (here, here, here, etc.).

Thursday, August 24, 2006

"Religion as a point of view"

By Rick Garnett

Over at St. Maximos' Hut, Andy Morriss has a post on, well, "religion as a point of view."  Here is a bit:

The central claim of most religions (perhaps even all) is, however, that they embody the ultimate truth and that their truth claim is stronger than the scientific method. That is, each religion makes a truth claim that is incompatible with the rest - either Jesus is the Messiah or He isn't. If He is, Christianity is true and other religions are not. If He isn't, Christianity is not true and (perhaps) some other religion is.

This seems to me to put a limit on what we can learn from playing anthropologist and comparing and contrasting religions. If, for instance, Christianity is true, then "how Muslims react to American law" is a much less interesting question in religious terms. Similarly, if Islam is true, then how Christians react to American law is less interesting.

Western academic study of religion seems to me to be often premised on a neutral disbelief of all religions (save science). Once the idea that a religion might be true and the others false enters the picture, the typical academic approach seems less useful.

Thoughts?

Advice for 2-L students

By Rick Garnett

Jim Lindgren and David Bernstein have posted, over at the Volokh Conspiracy, some advice for second-year law students.  I would add to their suggestions at least one of my own:  If your school has (as mine does) upper-level required courses (e.g., Tax, Business Associations, etc.), try to resist the pull of the common view that students should "get the requirements out of the way" as soon as possible.  The first year of law school is often a long line of big lecture classes, topped off with standard-issue three-hour exam / disgorgements.  It seems to me that second-year students should try to diversify their law-class experience, strike out in some new and even strange directions (go ahead -- take "Law and the Catholic Social Tradition"!), and so on.  Besides, you never know if that interesting biodiversity or election-law class -- the one you figure you'll take during your third year, after all the requirements are done -- will be offered or available.

Regulating love, and religious conversion, in Malaysia.

By Rick Garnett

An interesting story about "Lina Joy, she converted from Islam to Christianity eight years ago and since then has endured extraordinary hurdles in her desire to marry the man in her life."

Ms. Joy had been interested in Roman Catholicism since 1990 and was baptized in 1998 at Our Lady of Fatima Church in Kuala Lumpur. Because she considered herself a Christian, Ms. Joy did not believe the Shariah courts applied to her. In an affidavit to a lower civil court in 2000, she said she felt “more peace in my spirit and soul after having become a Christian.”

Because of the death threats, including some calls to hunt her down, Mr. Dawson said, he could not say where she was, and could not make her available for an interview, even by telephone.

It strikes me, again, that -- for all of our disgreements and divisions -- we in the United States are -- thankfully, and Kevin Phillips notwithstanding-- a long, long way from anything that could plausibly be characterized as a "theocracy."

UPDATE:  More happy news from Malaysia, courtesy of Professor Friedman. 

Malaysia Uses Religious Rehabilitation Camps

In an article about Muslims who convert to Christianity in Malaysia, today's New York Times discloses that Malaysian religious authorities sentence converts to "religious rehabilitation camps". The article reviews the high profile case of convert Lina Joy pending in the Federal Court, Malaysia's highest court. The case seeks a ruling that civil courts can order a change of religion on Joy's identity card without approval of her conversion from a Shariah court. (See prior posting.) Shariah courts would likely consider Joy an apostate, and if she did not repent it would likely sentence her to several years in an Islamic rehabilitation center. Joy's case is seen as a critical test of whether Malaysia will remain a secular country.

Meanwhile the New Straits Times says that the Federal Court has indicated that it will not be rushed into rendering its decision in Lina Joy's appeal.

No "rational" reasons to oppose stem-cell research?

By Rick Garnett

In this story, from today's New York Times, about a method of extracting cells for research purposes from embryos without destroying those embryos, quotes Dr. Robert Lanza, vice president of Advanced Cell Technology, as saying that "[t]here is no rational reason left to oppose this research."

For starters, I wonder if Dr. Lanza means to suggest that he thought there were "rational" reasons for opposing embryonic stem-cell research before?

Putting that aside, I find this statement baffling.  Perhaps Dr. Lanza just means, "look, the arguments against stem-cell research were really weak before, when they centered on causing the death of embryos, but now -- given that we are throwing the Luddites a bone and trying to avoid killing the embryos -- the objectors really should be mollified."  Here, however, is a link to a White Paper produced in 2005 by the President's Council on Bioethics which identifies a number of concerns which would seem to supply, at the very least, "rational" reasons for being concerned about the research described in the Times article.  For example, if it is "rational" to worry about research that intentionally causes the death of human embryos, perhaps it is also "rational" to worry about research that seems likely to involve the reckess causing of embryos' deaths?

Wednesday, August 23, 2006

Proportionality and armed conflict

By Rick Garnett

The very astute Catholic commentator and Vatican observer Sandro Magister has some thoughts, in his recent column, about possible shifts -- consistent with Deus caritas est -- in the Holy See's approach to diplomacy.  And, he excerpts from a recent piece on "proportionality" by Pietro De Marco, an expert in religious geopolitics, a professor at the University of Florence and at the Theological Faculty of Central Italy, and an editorialist for Avvenire, the paper of the Italian bishops' conference.

Hibbs on the state of universities

By Rick Garnett

Thomas Hibbs is a Catholic, a philosopher, and the dean of Baylor University's Honors College.  Here is a provocative opinion piece by him, about the state of our universities.  A taste:

In his classic statement The Idea of the University, John Henry Newman argues that liberal education can be justified only if "knowledge is capable of being its own end." Although Newman defended professional training, he argued forcefully that universities ought to develop in students a philosophical habit of mind, a habit of wonder and an ability to trace the relationships among different parts of knowledge. One of the reasons for the inclusion of all branches of knowledge in the university curriculum is that even though students "cannot pursue every subject, they will still gain from living among those who represent the whole circle."

There are manifold obstacles to realizing Newman's idea in today's university. Given the increasing emphasis on specialization in faculty research, few if any faculty can be said even to approximate representing the "whole circle." And of course students do not "live among" the faculty anyhow. The shared libertarianism of faculty and students results in a diminishing number of contact hours between students and faculty, and even between faculty, who rarely know colleagues outside their departments.

Specialization breeds an inevitable individualism and elevates narrow expertise over breadth of learning. Clearly a university cannot do without rigorous, specialized knowledge in its faculty. The challenge Mr. Lewis and others pose is whether universities can create incentives to balance focus with breadth.

This would entail another sense of liberalism. Such a liberality or generosity of spirit would revive a proper appreciation of amateurism – not in the sense of an absence of serious training but in the etymological meaning of the word "amateur," from the French for "lover."

A thought:  It is a mistake to ask and fret about whether a university can remain, or become, "great" if it insists on remaining, or becoming, "Catholic."  The real question is, can a university be great -- really -- if it is not -- really -- "Catholic"?

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