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.

Monday, November 26, 2007

Torture Then and Now

By Michael Perry

Sightings 11/26/07

 

Torture Then and Now

-- Martin E. Marty

 

Torture, including torture by Americans: Who could have predicted that this would be a live topic here in the twenty-first century?  We know how to associate torture with the accused and accusing other, with Inquisitors and witch hunters five centuries ago, or with far-away twentieth century totalitarian regimes and religious terrorists.  But today the theological, humanistic, and tactical themes connected with torture have appeared close to home, giving new significance to those distant times, places, and events.

 

Accordingly, a very distinguished historian, Princeton 's expert on the Renaissance, is speaking up.  Not known for ideology or pamphleteering, Anthony Grafton takes pains not to oversell the relevance of his subjects. He favors patient historical work and writes in a moderate mode. Recently he looked up from his Renaissance research to see how things are going today.  Alert to contemporary controversies and mildly allusive about events in America, he stops short of issuing indictments.  Grafton seems to be writing in the haze of "where there's smoke there's fire," but clearly sees enough to issue cautionary words.

 

His article in the November 5th New Republic, entitled "Say Anything," refers to what he has learned from the transcripts of those Inquisitors and witch-hunters.  He knows enough to say enough about the practical ineffectiveness of torture. Americans, we were always told, do not torture for a number of reasons:  Torture violates our moral codes, including those based on religious notions that humans are made in the image of God; religious leadership is almost unanimously against torture, and America is a religious nation; for us to torture is to enter a dangerous game, since if we torture we have no moral claim to demand that "the other," our enemies, should not torture our people when they are captured; and we are a practical people and like to work with things that work.  Grafton concentrates on this last piece, the ineffectiveness of torture.

 

He notes that four centuries ago, as now, the tortured will "say anything" to get the pain to stop, which means anything that the tortured thinks the torturer wants to hear.  And what the torturer hears is almost never right or useful.  Grafton reports on the work of younger historians who are finding that "torture—as inflicted in the past—was anything but a sure way of arriving at the truth." He tells how, in unimaginable pain, some tortured Jews were broken and finally "filled in every detail that Christians wanted." Nowadays, he says, "no competent historian trusts confessions wrung by torture that confirms the strange and fixed ideas of the torturer." Grafton's conclusion:  "Torture does not obtain truth…it can make most ordinary people…say anything their examiners want."  Moral: "it is not an instrument that a decent society has any business applying…Anyone who claims otherwise…stands with the torturers" of long ago.  And that, Grafton has made quite clear, is not a good place to stand.

----------

Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.

Sunday, November 25, 2007

A Second Response to Michael

By Robert John Araujo, SJ

Thanks to Michael and Rick for exploring further issues on the contraceptives-for-collegians issue. 

Michael has posed a new issue. In his first posting he asked this: assuming that you want to minimize the number of abortions in the United States, how would you vote on the proposed legislation referenced in The New York Times article of November 22. From my reading of this article the legislation is designed to reinstate subsidized or “deeply discounted” contraceptive drugs available at campus health centers. The question was framed by Michael: “how would ‘you’ [I took that to mean me, and I think Rick took it to mean him] vote”. That was the question asked and answered.

Michael has now raised a new question: “whether one who neither opposes nor is (inordinately) skeptical about the use of contraceptives generally should vote ‘Yes’ or ‘No’”. I would hope and pray that my earlier five points would be considered by anyone studying the proposed legislation mentioned in the Times article. But now Michael has narrowed the class of those who are neither opposed to contraceptive use nor have serious questions about their use. I take this characterization to be a class of persons who, given the conditions stipulated by Michael, desire the reinstatement of the subsidized or deeply-discounted pharmaceuticals. It is not clear if the previous assumption about wanting to minimize abortions still applies to the narrowed class. If it does not, I would imagine that advocates for contraceptives-for-collegians would be essentially concerned about maximizing availability with-a-minimum-of-fuss (and expense), period. But if the assumption still applies, as I think it should, then would not these advocates, assuming they are reasonable people, be open to considering the objections that were previously raised by Rick and I?

Michael has posed some concerns about my previous posting on this topic. However, it seems that he agrees that some of what I have had to say and proposed could dissuade some couples from engaging “in some forms of pre-marital sexual intimacy.” But then he suggests that several of my proposals may encourage them to engage in “other forms.” I am not sure what Michael’s reference to “other forms” means. I look upon the topic he has raised as asking the question in the context of collegians who are having sex and want someone to pay for their contraception—regardless of the issue of whether they want pregnancies and abortions to be reduced.

By saying “yes” to the several questions Michael has raised, a person is encouraging collegians to engage in sex, regardless of the “form.” Should collegiate administrators, should legislators participate in this encouragement? My answer is, was, and will be: no. Moreover, if we are discussing what legislators and collegiate administrators should be doing, might we, as citizens and as legal educators, encourage them to discourage collegians from continuing to accept the perilous myth that pre-marital sex (regardless of the “form”) is okay? I think that voting “no” is a good step in the right direction whereas voting “yes” is a big step in the wrong direction.     RJA sj

Response to Michael

By Rick Garnett

In his most recent post regarding the contraception-subsidy question, Michael says that "[t]he question [he] meant to ask[] is whether one who neither opposes nor is (inordinately) skeptical about the use of contraceptives generally should vote 'Yes' or 'No'."  Putting aside the question where the line is between appropriate and "inordinate[]" skepticism about contraception, it appears that I misunderstood Michael's original post ("How Would *You* Vote?").  I took him to be asking the reader to assume only that he or she "want[s] to minimize the number of abortions in the United States."

Michael also writes that I "endorse[]" Fr. Araujo's third and fourth reasons for opposing the proposal.  What I meant to say, when I wrote that my own reason for opposition was "consonant" with Fr. Araujo's third and fourth reasons, was that my reason -- like, I thought, Fr. Araujo's third and fourth reasons -- proceeds from the view that "law has not only a direct, social-control function but also 'expressive' and 'pedagogical' functions (and effects)."  I actually do not know -- at least, I'm not sure -- whether subsidized contraception for college students would encourage more sex by college students, or would (simply) encourage those college students who would have sex anyway to use contraception when they do.  But, as I tried to make clear, I am assuming for the sake of this discussion precisely what Michael apparently believes, namely, that college students are going to have sex, no matter what, and that subsidized contraception for college students would likely result in fewer unplanned pregnancies.

Finally, with respect to my statement that "[t]he contraception-subsidy proposal involves, among other things, the expression-through-law of a position that, it seems to me, we might want to avoid expressing-through-law", Michael asks me to be more explicit about the "position" to which I am referring.  In my initial post, I indicated that the position I'm worried about is one that denies, or seems to deny, "that a young college man ought not to pressure his pregnant girlfriend to get an abortion, and a young college woman ought not to procure an abortion, even if their inability to shoulder the burden of paying full-price for contraceptives is one of the reasons they face the decision." 

It seems to me that the the proposal does express-through-law the denial of this position.  Instead, it seems to me, the proposal "says" something like the following:  "It is an understandable, and even an appropriate, decision for college students facing unplanned pregnancies to have abortions; and it is (therefore) appropriate for the public authority to allocate scarce resources in order to make it less expensive for college students to avoid confronting the scenario -- i.e., an unplanned pregnancy -- in which it is understandable, and even appropriate, for them to choose abortion."

So, does the proposal, in effect, "say" this?  Maybe not.  If not, though, what does it "say"?  If so, should we care?  Michael?  Robert?  Others?

Christ the King

By Rick Garnett

Today is the Solemnity of Christ the King.  Here is a little Solemnity-appropriate reading:  Pope Pius XI's Quas Primas.  Great stuff.  "Viva Cristo Rey!"

UPDATE:  More, on Miguel Pro, S.J., here.

Response to Robert and Rick

By Michael Perry

Robert has given five reasons for voting "No".  It seems to me that Robert's first, second, and fifth reasons are reasons for opposing, or for being skeptical about, the use of contraceptives generally.  The question I asked, however, or meant to ask, is whether one who neither opposes nor is (inordinately) skeptical about the use of contraceptives generally should vote "Yes" or "No".

As I read them, Robert's third and fourth reasons--which Rick endorses--suggest that easier access to contraceptives will encourage couples to engage in, and more difficult access to contraceptives will discourage them from engaging in, pre-marital sex.  But why should be believe that?  At best, more difficult asccess to contraceptives will discourage some couples from engaging in some forms of pre-marital sexual intimacy and encourage them to engage in other forms.  And, in any event, easier access to contraceptives will encourage couples determined to engage in pre-marital sexual intercourse to do so in a responsible--i.e., contracepted--manner.

In his post, Rick writes:  "The contraception-subsidy proposal involves, among other things, the expression-through-law of a position that, it seems to me, we might want to avoid expressing-through-law."  Rick, can you be more explcit:  What is the position to which you are referring?  Please spell it out.  What position is it, precisely, that, in your judgment, the proposal expresses that we ought to be wary about "expressing-through-law"?

Saturday, November 24, 2007

Explaining my "no"

By Rick Garnett

Michael P. has raised (in e-mail) a question about my "no" vote on the contraception-subsidy proposal about which he blogged the other day.  Regarding this passage from my post:

"[A] young college man ought not to pressure his pregnant girlfriend to get an abortion, and a young college woman ought not to procure an abortion, even if their inability to shoulder the burden of paying full-price for contraceptives is one of the reasons they face the decision.  And, it seems to me that policymakers may and should take very seriously the possible negative consequences of a law whose expressive function might be to suggest otherwise."

Michael has pressed me:  "I don't understand how does this passage counts as a reason to vote no.  Can you elaborate a bit for me?"

The contraception-subsidy proposal reflects, it seems to me, this thinking:  We all know that college students are going to have sex -- even if we tell them (assuming they are unmarried) that they shouldn't.  And, we all know that some of these students are going to get pregnant.  Finally, we all know that some of these students will choose abortion, even if we try to teach them that they should not.  So, those of us who want there to be fewer abortions should support the contraception-subsidy proposal because -- by making contraception cheaper -- it would reduce the number of unwanted pregnancies and, therefore, the number of abortions. 

In my post, I assumed for the sake of argument that fewer abortions among college students would, in fact, be a result -- a good result -- of adopting the proposal.  But, are there reasons why even those of us who regard "fewer abortions" as a "good result" might still oppose the policy?  It seems to me that there are.  Fr. Araujo has discussed (with more care and eloquence than I did) some of these reasons.  The reason I was trying to articulate in my earlier post is consonant, I think, with Fr. Araujo's third and fourth reasons.  I start with the view that law has not only a direct, social-control function but also "expressive" and "pedagogical" functions (and effects).  The contraception-subsidy proposal involves, among other things, the expression-through-law of a position that, it seems to me, we might want to avoid expressing-through-law.  Joined with the reasons discussed by Fr. Araujo, this fact (assuming it is a fact) seems to provide a reasonable basis for someone who opposes abortion to nonetheless vote "no" on the proposal.

A Second "Nay"

By Robert John Araujo, SJ

Thanks to Michael and Rick for examining the question about whether colleges and universities should have reinstated the previous subsidization levels of costs associated with providing birth control pharmaceuticals. Rick has voted “no.” I join him. There are a number of reasons for this, several immediate ones that I would like to offer today.

First of all, we need to consider whether these chemicals have other effects on the human body besides reducing the likelihood of pregnancy after sexual intercourse? These drugs do affect a woman’s physiology and alter her body chemistry. Is this a good thing to pursue knowing that there are other important health considerations of which we need to take account? I do not believe so. Therefore, why should we encourage this by making available free or inexpensive chemicals that can and do harm or alter normal body functions of the female human being?

Second, does this change of policy also provide implicit consent of society to young people to be sexually active by suggesting that they will be immune from any adverse consequences of sexual activity? Of course it does. A critic of my position on this point could argue that sexual mores have changed in the last several decades. My response begins with the question: why? But I hasten to add that I would like to answer my own question by suggesting that our society has deceived itself, with the discovery of the “pill” and other chemical contraceptives, into thinking that these hormonal cocktails permit people to do what they “feel” like doing without having to worry about consequences. Of course, the only consequence that many think of is how to avoid pregnancy. And if fear of this consequence has been almost eliminated, why worry about anything else? But there are other important considerations that must also be taken into account as well. For example: these drugs do not combat sexually transmitted diseases; they do not foster commitment; they do not enhance the stability of marriage; they do not advance the gift of life or the gift of self or the gift of love. In short, the promotion of these chemicals inevitably leads young people into objectifying themselves and one another.

Third, does the cheap or free administration of these drugs cultivate young people into becoming more virtuous in their temperance or forbearance? No, they do not. In fact, it appears that once they learn how to be unrestrained in their sexual activity, will they not be encouraged to submit to whatever other appetites that may come their way? I think so.

Fourth, we need to consider what the change in this policy would do to the educational process in general. I submit that it would teach young people more about how to avoid responsibility rather than cultivate it. I suppose a critic of mine might argue that with affordable pharmaceuticals that are designed to avoid pregnancy, young people will be more responsible on sexual matters. Really? This self-deception needs to be recognized for what it is.

A fifth reason I’d like to present at this stage is based on the assumption that these drugs will decrease “unwanted pregnancies.” But what happens when the pharmaceutical fails or when someone takes a wrong dose or when someone misuses the prescription? With sexual activity presumably on the increase, can we conclude that “unwanted pregnancies” will really decrease? Again, I suggest that the desired answer of “yes” will not automatically follow.

So, I join Rick and vote “no.” RJA sj

Friday, November 23, 2007

Recommended Reading

By Michael Perry

                                          
The Heart Has its Reasons: Examining the Strange Persistence of the American Death Penalty

SUSAN A. BANDES
DePaul University - College of Law; University of Chicago Law School
         
Studies in Law, Politics and Society, Vol. 42, No. 1, 2008        
 

Abstract:    
The debate about the future of the death penalty often focuses on whether its supporters are animated by instrumental or expressive values, and if the latter, what values the penalty does in fact express, where those values originated, and how deeply entrenched they are. In this article I argue that a more explicit recognition of the emotional sources of support for and opposition to the death penalty will contribute to the clarity of the debate. The focus on emotional variables reveals that the boundary between instrumental and expressive values is porous; both types of values are informed (or uninformed) by fear, outrage, compassion, selective empathy and other emotional attitudes. More fundamentally, though history, culture and politics are essential aspects of the discussion, the resilience of the death penalty cannot be adequately understood when the affect is stripped from explanations for its support. Ultimately, the death penalty will not die without a societal change of heart.

 

         
        Keywords:  capital punishment, death penalty, punishment, emotion, cognitive bias           
 
  Accepted Paper Series      
 

Suggested Citation

Bandes, Susan A. , "The Heart Has its Reasons: Examining the Strange Persistence of the American Death Penalty" . Studies in Law, Politics and Society, Vol. 42, No. 1, 2008 Available at SSRN: http://ssrn.com/abstract=1019615

Thursday, November 22, 2007

I'd vote "no"

By Rick Garnett

"How would *you* vote," Michael asks, on a proposal to re-instate previous subsidization levels of birth-control pills for college students.  I'd vote "no", I think.  (Michael:  How would *you* vote?) 

For starters, I am inclined to agree with "some people":

Not everyone is troubled by the price increases. Some people said they wondered why college students, many of whom manage to afford daily doses of coffee from Starbucks and downloads from iTunes, should have been given such discounted birth control to begin with, and why drug companies should be granted such a captive audience of students. Others said low-priced, easy-to-attain contraception might encourage a false sense of security about sex.

More seriously, though:  Michael prefaces his question by asking us to "assume that [we] want to minimize the number of abortions in the United States."  The preface implies, it seems to me, two other premises:  (a) cheaper contraceptives for college students will result in fewer unplanned pregnancies, and therefore fewer abortions and (b) that policies which are likely to result in fewer abortions are, presumptively, policies worthy of support.

Let's go ahead and assume -- for the sake of argument -- (a).  And, we can all concede that there is something to (b).  If abortion is -- and, it is -- the killing of an unborn child, then it would seem that any policy -- which is not itself morally objectionable -- which is expected to result in fewer such killings is, for this reason, at least presumptively worth supporting.  But, we do not think -- do we? -- that the fact a particular proposed policy could result in fewer abortions removes the need to consider other facts about the proposed policy.  It is easily to imagine all kinds of horrible policies -- e.g., mandatory sterilizations, involuntary commitment, etc. -- that would result in fewer abortions.  It would -- assuming (a) -- also result in fewer abortions if government were to confiscate summarily all of the wealth of the "top 5%" and use this money to set up a fund that would provide contraception free, to everyone.  But, this policy would be both stupid and unjust; that it might result in fewer abortions would not make it smart or just.   

Abortions are not just "bad things that happen" or sub-optimal occurrences -- like mudslides or sewer-line breaks -- whose incidence we want to reduce to the extent it is cost-effective to reduce them.  (It would save lives to reduce the speed limit to 30 miles-per-hour.  But we don't, and no one thinks the fact that it would save lives requires us to.)  Abortions are chosen wrongs, they are acts that harm others.  Certainly, we cannot deny that many people chose this wrong, and do this act, in contexts and under influences (e.g., poverty, domestic violence, child abuse) that diminish -- even dramatically -- their personal culpability.  Certainly, there are policies that we may and should enact to alleviate the impact of such influences.  But, it seems to me that we should remember -- and that policy-makers are entitled to insist -- that a young college man ought not to pressure his pregnant girlfriend to get an abortion, and a young college woman ought not to procure an abortion, even if their inability to shoulder the burden of paying full-price for contraceptives is one of the reasons they face the decision.  And, it seems to me that policymakers may and should take very seriously the possible negative consequences of a law whose expressive function might be to suggest otherwise.

But again:  Michael, how would *you* vote, and why?  (And, happy Thanksgiving!).

Santorum on subsidiarity and "common-good conservatism"

By Rick Garnett

This op-ed, by Rick Santorum, strikes me as worthwhile reading.  He writes:

. . . What I call "common-good" conservatism not only relies as much as possible on private charities and faith organizations, market forces, individual choice and decentralized decision-making, but also sees a role for government in empowering the nongovernmental institutions of civil society that serve the common good.

For example, with the use of government vouchers, individuals are better able to choose a nonprofit service provider that is better for their families than a government program is. Similarly, taxpayers are at least as capable as Washington bureaucrats of choosing an effective charity that aids the poor in their communities. So why not eliminate most government grants and give a tax credit to individuals who give to poverty-fighting nonprofits? Unlike past conservative proposals, that measure would be aiming not to save money but to save lives.

Common-good conservatism creates the opportunity for services to be more effectively delivered to those in need, while helping to re-create a community, a place to reconnect. And for Republicans, it creates an opportunity to reconnect to the millions of Americans who think we don't care.

Previous Articles More Articles

Recent Posts

Categories

Monthly Archive