Thanks to Michael for linking to Professor Jeff Murphy's review of William Ian Miller's "An Eye for An Eye." As I have mentioned before, I am a big fan of Murphy's work. (Check out, for example, his essay, "Law Like Love", or his recent short book, "Getting Even."). Here is an interesting bit:
Most (but not all, see note 1) philosophers who defend retributive theories of punishment -- philosophers from Kant to Michael Moore -- insist that what they call retribution -- giving wrongdoers what they deserve -- must be sharply distinguished from such unsavory or even evil practices as revenge or vengeance. They also want to insist, as a point in moral psychology, that the motivation that prompts one toward retribution is a sense of justice, something admirable, whereas the motivation that prompts one toward revenge or vengeance is vindictiveness, something quite vile -- some primitive and savage emotion that civilized people have outgrown.
Miller believes that this sharp distinction between retributive justice and revenge cannot be maintained and that those who seek to maintain it have a grossly uninformed view about the nature of revenge -- a view they would not have if they actually knew something about revenge cultures instead of starting with a variety of ignorant assumptions about such cultures:
The whole distinction [philosophical literature] mobilizes between retribution and revenge is untenable given any serious account of revenge as actually instituted in revenge cultures. Invariably, revenge is caricatured as a crazy, imbalanced response to injury. No real revenge culture would put up with this kind of revenge for a second. (p. 206)
Murphy closes his review with some thoughts on an issue that supplies (I hope!) one of the organizing (!) themes of my first-year criminal law course, i.e., the role of "harm" in punishment theory:
Why does actual harm caused play such a large role in determining the severity of punishment that a criminal receives?
The role of harm may pose an interesting challenge to those who think that civilized criminal law has moved beyond vengeance. Consider this: We punish attempted murder that fails through a fortuity (the gun jams, for example) far less severely than actual murder. Why is this? Why should they not be treated with equal severity? Is our attempted murderer less evil (less malicious in heart) than the successful killer? Surely not, since one does not become a better person simply in virtue of having a faulty gun. Is he less dangerous, less likely to pose a future threat? Probably not since he has now learned to use a better weapon. So why then do we punish him less? The best explanation may simply be that, since no harm occurred, there is no payback due -- nothing to get even for. So unless one wants a radical redesign of the criminal law so that actual harm caused plays no important role, one might want to be a bit cautious before confidently asserting that payback or getting even has no legitimate role to play here. If we had a very different and sophisticated concept of harm -- viewing harm simply as having our right not to be put at unjustified risk violated -- we could then perhaps justify treating our attempted murderer the same as our murderer, since both acted to impose the same unjustified risk. This is not our actual concept of harm, however, and I do not think that it is likely to be so in the future. I never will hate the negligent driver who (out of pure good luck) just misses killing my child nearly as much as I will hate and want to hurt the equally negligent driver who (out of pure bad luck) does kill my child. I do not think I am at all atypical in this regard, and I know that I (and many others) would want the state, through its criminal law, to ignore all pious sermons against vindictiveness and revenge and to treat the child killer much more harshly than the one who misses the child. Wanting to hurt the person who wrongfully killed my child probably should not always be my last word, but it surely has every right to be my first word. Those to whom this seems correct will thus be forced to admit that Miller has been correct in seeing some virtues for revenge even in our contemporary world. (A query: Can honor explain the desire for revenge in cases such as the death of one's child at the hands of a wrongdoer? Might not love or wounds to love sometimes provoke the desire for revenge?)
Miller does not strike me as a victim of nostalgic fantasies about the past (he always notes problems in the cultures and practices in which he also sees merit) nor does he strike me as someone who would like totally to abandon all aspects of the modern world and make a return to the past. He is fascinated by revenge and ancient revenge cultures, not because he wants us to live in one, but because he sees that they did contain some real virtues -- a kind of nobility -- that it might benefit us to recognize and recapture to some substantial degree. At the very least, he has warned us not to shrink in horror when we find remnants of these cultures in our present practices and assume that these remnants could contain nothing but evil and must immediately be discarded. In this regard, I will let the final paragraph of his book be the last word here:
Though we have progressed in some domains . . . it is not obvious to me that we are better psychologists and social scientists than humans were in centuries past. Indeed it is obvious to me that we are not. Nor are we better educators and scholars. And with no irony I can attest to my belief that when it comes to understanding human motivation -- no less than to understanding justice and what it means to get even -- we are not as smart now as we were when people worried more about their honor than about their pleasure. (p. 202)
It is my view that punishment is justifiable only for restributive reasons. That is, punishment is not justifiable -- I'm not sure it is even "punishment" -- if it is not deserved. But, since we know that part of what it means to be a "person", made in the image and likeness of God, is to be something toward which the correct attitude is "love", it seems crucial that a plausible and meaningful distinction be maintained "retribution" and revenge. For me, Murphy is very helpful in this regard.
My colleague, law-and-bioethics expert Carter Snead, has an op-ed in the Indianapolis Star on the recent veto by the President of the embryonic-stem-cell-research-funding bill. Check it out.
My friend Michael's post about what appears to be some dramatic shrinkage in the IRS's estate-tax-related lawyer-force is right on. Clearly, any reasonable person of good will -- and, anyone who "know[s] what the hell Catholic Social Thought is all about" -- can easily find in the Catholic Social Tradition the answer to questions like, "how many estate-tax lawyers should the IRS have?", "at what dollar amount should the estate-tax kick in?", "what should be the tax-rate structure", and "in order to best promote the common good, what is the most just combination of income taxes, capital-gains taxes, gift taxes, and estate taxes?"
Why is it that, according to (many) legal economists, the sorts of things the poor think are good for them (e.g., labor laws, minimum wages, redistribution, etc.) are actually counterproductive and quite bad for them, but the sorts of things the rich think are good for them (e.g., estate tax cuts) are actually pretty much ok? Is it just that poor people are stupid or something?
I'm sure if I could just come to understand that whatever is good for the rich is good for everyone else, I'd be able to tap into a whole universe of truth and justice that continues to elude me.
After hacking my way through the unexpected thicket of dense sarcasm, I find that I share my friend Eduardo's confusion: I too wonder why it is that so many prominent "progressives" -- who enjoy regarding and congratulating themselves as tapped into, solidarity-style, the needs and concerns of the poor (T. Frank's "What's the Matter with Kansas" comes to mind) -- are so quick to insist that low-income and working-class people who want things like restraints on the abortion license, bans on same-sex marriage, reduced foreign aid, limits on immigration, censorship of pornography and indecency, flag-burning amendments, gun-ownership rights, religion in the public square, "law and order" measures, more Cracker Barrel restaurants, and subsidized NASCAR -- and who vote accordingly -- fail to understand what is really good for them. I mean, are these people just stupid or something? I'm sure, though, that "if I could just come to understand that whatever [accords with the latitudinarian and libertarian preferences of progressive academics and wealthy celebrities] is good for everyone else, I'd be able to tap into a whole universe of truth and justice that continues to elude me."
Here is a copy of the President's remarks, on the occasion of his veto of Congress's bill authorizing funding for increased embryonic stem-cell research (and his much-less-noticed signing of a bill authorizing increased funding for other forms of stem-cell research). Here is a bit:
Like all Americans, I believe our nation must vigorously pursue the tremendous possibility that science offers to cure disease and improve the lives of millions. We have opportunities to discover cures and treatments that were unthinkable generations ago. Some scientists believe that one source of these cures might be embryonic stem cell research. Embryonic stem cells have the ability to grow into specialized adult tissues, and this may give them the potential to replace damaged or defective cells or body parts and treat a variety of diseases.
Yet we must also remember that embryonic stem cells come from human embryos that are destroyed for their cells. Each of these human embryos is a unique human life with inherent dignity and matchless value. We see that value in the children who are with us today. Each of these children began his or her life as a frozen embryo that was created for in vitro fertilization, but remained unused after the fertility treatments were complete. Each of these children was adopted while still an embryo, and has been blessed with the chance to grow up in a loving family.
These boys and girls are not spare parts. (Applause.) They remind us of that is lost when embryos are destroyed in the name of research. They remind us that we all begin our lives as a small collection of cells. And they remind us that in our zeal for new treatments and cures, America must never abandon our fundamental morals.
Check out this essay, by Robert George and Gerard Bradley, on the recent federal-court decision invalidating, on First Amendment grounds, a faith-based program in Iowa prisons.
I have an op-ed in today's USA Today about parish and parochial-school closings, the new urbanism, and religious freedom. I'd welcome reactions. Here is a bit:
Well, so what? We might well sympathize with those for whom the closing of a parish is painful because of family memories or ethnic traditions, or those who must now find a new school. And maybe we regret the loss of a few older, attractive buildings. In the end, though, why shouldn't the reaction of outsiders simply be, "Oh well, that's life"?
Why should we care?
For starters, urban Catholic schools and their teachers do heroic work in providing education, hope, safety, opportunity and values to vulnerable and marginalized children of all religions, ethnicities and backgrounds. Similarly, Catholic hospitals have long cared for underserved and disadvantaged people in both urban and rural areas, and helped to fill glaring gaps in the availability of health care. It is too easy to take for granted these and similar contributions to the common good. We should remember that, as these institutions fold, the burdens on and challenges to public ones will increase.
We might also care about the closings for slightly more abstract but no less important reasons. In a nutshell: It is important to a free society that non-government institutions thrive. Such institutions enrich and diversify what we call "civil society." They are like bridges and buffers that mediate between the individual and the state. They are the necessary infrastructure for communities and relationships in which loyalties and values are formed and passed on and where persons develop and flourish.
Catholics and non-Catholics alike can appreciate the crucial role that these increasingly vulnerable "mediating associations" play in the lives of our cities. Harvard University Professor Robert Putnam and others have emphasized the importance of "social capital," both to the health of political communities and to the development of engaged citizens. In America's cities, it has long been true that neighborhood churches and schools have provided and nurtured this social capital by serving as places where connections and bonds of trust are formed and strengthened. As Joel Kotkin writes in his recent book, The City: A Global History, healthy cities are and must be "sacred, safe and busy." If he is right, Catholic parishes, schools and hospitals help make America's cities great.
Responding to my recent post about Michael P's Commonweal essay on the possibility of a non-religious ground for the morality of human rights, Robert George kindly sent me a chapter -- which takes the form of an interview with him about natural law -- from a new volume, edited by Elizabeth Bucar and Barbara Barnett, Does Human Rights Need God? (Eerdman's 2005). Other contributors to the volume include Khaled Abou El Fadl, Jean Bethke Elshtain, Vigen Guroian, Louis Henkin, and David Novak (to name just a few). Looks great!
Here is a bit from George's chapter:
What is the role of religion and/or God in your understanding of natural law?
Most, but not all, natural law theorists are theists.They believe that the moral order, like every other order in human experience, is what it is because God creates and sustains it as such.In accounting for the intelligibility of the created order, they infer the existence of a free and creative intelligence—a personal God.Indeed, they typically argue that God’s creative free choice provides the only ultimately satisfactory account of the existence of the intelligibilities humans grasp in every domain of inquiry.
Natural law theorists do not deny that God can reveal moral truths and most believe that God has chosen to reveal many such truths.However, natural law theorists also affirm that many moral truths, including some that are revealed, can also be grasped by ethical reflection apart from revelation.They assert, with St. Paul, that there is a law “written on the hearts” even of the Gentiles who did not know the law of Moses.So the basic norms against murder and theft, though revealed in the Decalogue, are knowable even apart from God’s special revelation.The natural law can be known by us, and we can conform our conduct to its terms, by virtue of our natural human capacities for deliberation, judgment, and choice.The absence of a divine source of the natural law would be a puzzling thing, just as the absence of a divine source of any and every other intelligible order in human experience would be a puzzling thing.An atheist’s puzzlement might well cause him or her to re-consider the idea that there is no divine source of the order we perceive and understand in the universe.It is far less likely to cause him or her to conclude that our perception is illusory or that our understanding is a sham.
[C]an natural law provide the basis for an international human rights regime without consensus on the nature of God and the role of God in human affairs?
Anybody who acknowledges the human capacities for reason and freedom has good grounds for affirming human dignity and basic human rights.These grounds remain in place whether or not one adverts to the question:“Is there a divine source of the moral order whose tenets we discern in inquiry regarding natural law and natural rights?”I happen to think that the answer to this question is “yes,” and that we should be open to the possibility that God has revealed himself in ways that reinforce and supplement what can be known by unaided reason.But we do not need agreement on the answer, so long as we agree about the truths that give rise to the question, namely, that human beings, possessing the God-like powers of reason and freedom are possessors of a profound dignity that is protected by certain basic rights.
So, if there is a set of moral norms, including norms of justice and human rights, that can be known by rational inquiry, understanding, and judgment even apart from any special revelation, then these norms of natural law can provide the basis for an international regime of human rights.Of course, we should not expect consensus.There are moral skeptics who deny that there are moral truths.There are religious fideists who hold that moral truths cannot be known apart from God’s special revelation.And even among those who believe in natural law, there will be differences of opinion about its precise content and implications for certain issues.So it is, I believe, our permanent condition to discuss and debate these issues, both as a matter of abstract philosophy and as a matter of practical politics.
Michael P.'s important essay in the latest issue of Commonweal deserves more than a link. In the piece, Michael presents arguments upon which he has elaborated in his books, fleshing out and exploring the implications of the conclusion that there is no "nonreligious ground" for the morality of human rights. Here is an excerpt:
The morality of universal human rights is a precious achievement, but also an exceedingly fragile one.
If, as I suspect, there exists no plausible nonreligious ground for the morality of human rights, then the growing marginalization of religious belief in many societies that have taken human rights seriously-in particular, in many liberal democracies-has a profoundly worrisome consequence: it may leave those societies bereft of the intellectual resources to sustain the morality of human rights. His pleasure at this dilemma is what makes Nietzsche so ominous in retrospect; in his exhilarated snarl one hears an advance warning of the Holocaust. . . .
That there is a religious ground for the morality of human rights is clear; indeed, there are multiple religious grounds. The Christian ground will be familiar to readers of this magazine: each and every human being is the beloved child of God, created in the image of God, and perfects this created nature in loving his or her sisters and brothers. The revealed truth of Scripture teaches that Jesus called us to “love one another just as I have loved you” (John 13:34). As Canadian (and Catholic) philosopher Charles Taylor has argued, the “affirmation of universal human rights” that characterizes “modern liberal political culture” represents one of several “authentic developments of the gospel” in modern life.
It is far from clear, however, that there is a nonreligious ground-a secular ground-for the morality of human rights. Indeed, the claim that every human being has inherent dignity, and that we should live our lives accordingly, remains deeply problematic for many secular thinkers. Such a claim is difficult, perhaps nearly impossible, to align with one of secularism’s reigning intellectual convictions, what British philosopher Bernard Williams called “Nietzsche’s thought”: that “there is, not only no God, but no metaphysical order of any kind.”
I'm afraid I'm not competent to judge Michael's assessment, and rejection, of John Finnis's arguments for a "nonreligious ground," but I'm sure that many MOJ readers are. In any event, here is Michael's conclusion:
In those liberal democracies in which religious belief is growing increasingly marginalized, one wonders which will survive-Nietzsche’s thought, or the morality of human rights. Can the morality of human rights survive the death-or deconstruction-of God? Was it such a morality that Nietzsche saw in the coffin at God’s funeral?
Perhaps some who find religious ground implausible can remain confident in their conviction that every human being has inherent dignity and is inviolable. “I have reached bedrock,” Wittgenstein wrote, “and this is where my spade is turned.” Perhaps some will say they have no time to obsess about the ground of their conviction because they are too busy doing the important work of “changing the world.” But still, this question intrudes: How can secular thinkers reconcile the very idea of bedrock with their vision of a universe possessed of no underlying metaphysical order whatsoever? If their bedrock conviction holds that the Other possesses inherent dignity and truly is inviolable, then what else must be true; what must be true for it to be true that the Other has inherent dignity and is inviolable? Not an easy question, and one whose answer, believers know, is a mystery.
I am delighted to announce that our MOJ-crew welcomes another blogista: Professor Lisa Schiltz, from the University of St. Thomas. (The St. Tommy take-over continues . . . .). Lisa is an old friend and former colleague to those of us at Notre Dame, and a powerful, thoughtful voice on matters ranging from predatory lending to motherhood. (For some past guest-posts supplied by Lisa, go here and here.) Welcome!
