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.

Sunday, October 22, 2006

The Good, The Bad, The Ugly, and The Evil

By Michael Scaperlanda

In our discussion about abortion, embryo destruction, wrongheadedness, unreasonableness, and evil, I offer this from Robby George's 2001 book, The Clash of Orthodoxies:

"They are not moral monsters. They are not Nazis or hatemongers. They are our colleagues and very often our friends. Many of them are doing their level best to think through the moral issues at the heart of our cultural struggle and arrive at conclusions that are right and just. They view themselves as partisans of a culture of freedom. In most cases, they carefully and honestly argue for those choices for death (as Dworkin himself calls them) whose moral worthiness they proclaim and whose legal permission and constitutional protection they defend. As a matter of reciprocity, it is, in my view, incumbent upon us, as their opponents, to engage them in debate, to answer their arguments, and to say why they are wrong. While we must oppose them with resolution and, indeed, determination to win, we cannot content ourselves merely to denounce them, as we would rightly denounce the moral monsters who created a different culture of death on the European continent in the 1930s and ’40s.”

Greg Sisk, Embyo Destruction, Harmonization, and Civil Procedure

By Michael Scaperlanda

Dear Greg:

Thanks for your post.  I write solely to link your post so that if someone ever wants review our almost two week long discussion on embryo destructive research and the moral status of embryos they can go into our archives under my name and be able to follow the whole conversation.

A Comment on Jean Porter's Essay

By Michael Scaperlanda

No word yet from Jean Porter, but here is a comment on Jean Porter’s essay from an anonymous reader of MOJ:

“If we take everything Jean claims about Thomas on ensoulment - which of course could be questioned, but even if we take everything she says as correct, this is how her argument works. Reasonable people can disagree, she tells us, because Thomas, being reasonable, came up with a different conclusion about the full humanity of the human conceptus, arguing it was pre-ensouled and thus its destruction not equivalent to murder. So, if we defer to tradition, she claims, then we should be hesitant simply to assert on the basis of biological data that we have in the early fetus a full human being.

“She then tells us that she approves of embryo-destroying research. As you state, there is no reason given for her position. Indeed, again taking everything she says as correct, the same tradition to which we ought defer describes, in her own terms, the destruction of pre-ensouled human beings as "a grave sin." Why, then, does Porter not follow them in this? Is there anything reasonable about her conclusion in favor of embryonic research if the tradition to which she appeals still sees such destruction as a grave sin, DESPITE the absence of a rational soul? Is there anything reasonable about her expectation that if only the magisterium would follow this traditional discussion about ensoulment, it might allow for embryo destruction? This makes no sense. The tradition she points to prohibits precisely what she argues we should permit! It strikes me as awfully unreasonable to appeal to a traditional argument in order to permit what that argument prohibits.

“Part of the difficulty, in your discussion with MP, seems to be an ambiguity in the term "reasonable." If one provides no reasons, or justifications, for the conclusion one reaches, that strikes me as patently unreasonable. Arguments can exhibit intelligence, then, and be unreasonable. Porter's argument clearly exhibits intelligence, and she is certainly correct that we should not pass quickly over critical questions about the nature of the human being; nonetheless, she fails to establish (in this short piece) that it's reasonable to depart from magisterial teaching prohibiting the destruction of embryos. If anything, she's done a nice job establishing that the issue of ensoulment is largely irrelevant to the prohibition.”

Thank you Michael P.,

By Michael Scaperlanda

Thank you Michael for answering my question regarding Peter Singer and infanticide.  And, I am glad that I could help hone your thinking and promote your book.  Two copies for the library!

Yours, Michael S.

Libertas Ecclesiae

By Robert John Araujo, SJ

A while back, Rick suggested that an emerging question that will become more prominent with the passage of time is the liberty of the Church. At that time, I tended to agree with Rick. It is becoming increasingly clear that evidence is mounting demonstrating that Rick’s assessment and prediction are on solid ground.

I have just read the opinion of the New York Court of Appeals in Catholic Charities of the Diocese of Albany v. Serio decided this past Thursday. There is little doubt that this 6-0 decision constitutes a threat to the Church’s liberty, in general, and its ability to engage in its good works, in particular. While this decision is being hailed by affiliates of the American Civil Liberties Union and the Planned Parenthood Federation, among others, it is not only lamentable, it is foreboding. Although the New York court asserts that the legislation mandating the inclusion of “reproductive health care”, which it validates, is neutral, it becomes necessary for the court to belabor its discussion of “neutrality” on sixteen different occasions in a brief opinion of eighteen typewritten pages. In spite of the court’s conclusion that the legislation and, therefore, its opinion are neutral, they are not. I am sure that Catholic Charities, knowing that the United States Supreme Court has turned down a request to review a similar type case decided by the California Supreme Court, is carefully considering its “options.” Might they include: hiring only Catholics and others who agree with the Church’s teachings about the immorality of artificial contraception and other “reproductive health issues”; terminating all health care benefits for all employees; or, simply closing the doors of Catholic Charities and its corporal works of mercy (or, “social services organizations”, as the court likes to say)?

The New York court on page 8 of its decision relies on the California court’s opinion that quotes from the U.S. Supreme Court decision in Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos (1987). In doing so, I wonder if the New York court considered Justices Brennan and Marshall’s concurrence in Amos where they, Brennan and Marshall, expressed the view that there exists a “substantial potential for chilling religious activity” including “nonprofit activity” to which the law should defer. As these justices stated, “While not every nonprofit activity may be operated for religious purposes, the likelihood that many are makes a categorical rule a suitable means to avoid chilling the exercise of religion.”

The New York court’s decision has provided more than a chilling effect on the good works promoted by Catholic Charities. It has also increased the threat against the Church regarding its proper involvement in a wide variety of public spheres by arming “public interest groups” (such as Planned Parenthood) who are opposed to the Church’s positions with new arguments for their legal arsenal. In spite of the New York court’s view that it has avoided “the inflexible rule of Smith”, its decision has burdened not only the lawful exercise of religion but also a society that has benefited in the past from the many good works done in the name of God by the Catholic Church. The six members of the New York court have now defined what religion is and what it is not. What the members of the religious community have to say about this important matter no longer appears to have a bearing on the meaning of the free exercise of religion.   RJA sj

Saturday, October 21, 2006

Dear Richard,

By Michael Perry

Thanks for your response.

You say that "those who deny human dignity are evil."

Let's put aside--at least for now--the question of who in this election are the deniers of human dignity.  (The deniers of *whose* human dignity?  Do you really want to say that, e.g., those who deny that human life at its earliest stage of development has the same moral status as human life at later stages of development are not only mistaken but evil?)

Let me offer two statements and ask whether you agree with either or both:

1.  Some who affirm the dignity of all human life but do not live their lives in accord with this affirmation are weak; some are perhaps even evil.

2.  Some who deny the dignity of some, or even all, human life--because for one or another reason they do not find dignity-talk plausible--are not evil but good, and perhaps even saintly:  for example, those who, for reasons of their own, devote their lives to protecting human life.

I suspect you agree that what one affirms or denies is not the true measure of their good-ness or evil-ness.

But then, perhaps you meant this: "those who deny human dignity--that is, who deny it not intellectually but existentially--are evil."  If that is what you meant, I wonder whether you really want to say that those who support embryonic stem cell research are not merely misguided but evil.

Be well.

Michael P.

Embryonic Stem Cell Research: A Cautionary Note

By Michael Perry

A perhaps needless reminder to MOJ-readers ...

Even among those who agree that human life at its earliest stage of development has the same moral status as human life at later stages of develeopment, there is disagreement about the morality--the moral permissibility--of (some) embryonic stem cell research.  I highlighted this disagreement in an earlier post.

Michael P.

Error, Grave Error, and Unreasonableness in Valuing Human Life (or How Much Our Two Michaels Agree)

By Greg Sisk

I have read with great interest the exchange between Michael Perry and Michael Scaperlanda (with valuable contributions as well by others) on the moral significance and protection of human life at its earliest stages, which is the most profound and fundamental question of human rights in our time. Our two Michaels continue to differ (in ever-smaller terms) on the reasonableness of some opposing positions that would differently value some human beings from others depending on point of development. Nonetheless , I perceive a rapidly-declining distance between them, not only in terms of agreeing that such opposing positions do manifest error, but I think as well on the gravity of the error inherent in any deliberate deprivation of human rights protection for any category of human beings.

In considering the nature of these evaluations of the degree of “wrongness” of an opposing position on an issue, I am reminded of my attempts each year to explain to students in Civil Procedure the difference in the standard by which a judge may grant judgment as a matter of law (formerly known as directed verdict or judgment notwithstanding the verdict) as contrasted with the standard by which a judge may grant a new trial. A judge may remove a case altogether from the jury, or override a jury verdict and enter a contrary judgment, only when there are no questions of material fact upon which there is a genuine dispute and the moving party would be entitled to judgment as a matter of law. This “judgment as a matter of law” rule articulates a reasonableness standard, under which the question is whether a reasonable fair-minded jury could render a verdict based upon that factual record. By contrast, when a jury verdict is not irrational, but the judge is convinced that the verdict is against the great weight of the evidence, the judge may vacate the jury verdict and submit the matter for a new trial, with the hope that another jury will not make the same mistake. The standard for granting a new trial is whether the verdict, while not unreasonable, leaves the judge with the firm and definite conviction that a serious mistake has been made.

As further explanation for students about such procedural standards in application, I suggest that in life as well as the law we experience different levels or degrees of disagreement with others. On one end of this spectrum, we may find ourselves left unpersuaded, telling another that we simply disagree while acknowledging that his or her position is reasonable. On the other end, we may not merely disagree but regard another person’s position to be utterly irrational. In between, but perhaps closer to the irrational end of the spectrum, lies the situation in which we may admit that another’s position is not wholly unreasonable, but nonetheless insist that the person is seriously and gravely wrong.

When it comes to evaluating the error of describing unborn children at the stage before organized cortical brain activity as less worthy of protection, our two Michaels appear to fall into this third category. I read them as increasingly agreeing that the error is not merely a mild mistake of ordinary disagreement, but rather a grave and serious error that does not follow the greater weight of the evidence, that fits uncomfortably within a well-informed appreciation for the foundations of human rights, and that bears seriously detrimental consequences for human dignity. Based upon agreement to this important extent about the substantiality of the error of valuing individual human life by potential can only come alliance in a common cause for human rights.

Greg Sisk

Bad and evil

By rstith

Michael Perry asks whom I think bad and whom evil. I don't mind responding if all readers promise not to tell my students (that I answered one of my own questions).

I think that those who do a poor job of protecting human dignity are bad. And those who deny human dignity are evil.

Response to Michael S.'s Query

By Michael Perry

The details of what I'm about to say, Michael, are in my new book.  (And I hope your library will buy *two* copies.)

The morality of human rights, as I glean it from the international law of human rights, holds that every born human being has inherent dignity and is inviolable.  (Nota bene:  I am being descriptive in saying this, not prescriptive.)  No argument according to which infanticide is morally permissible is consistent with the morality of human rights.  Is it reasonable to reject the morality of human rights?  Because I accept the morality of human rights on theistic grounds and doubt that there are adequate secular grounds for the morality of human rights (see my recent Commonweal essay), the question whether it is reasonable to reject the morality of human rights is, for me, the question whether it is reasonable to reject my theistic grounds and all other possible religious grounds for the morality of human rights.   My answer:  Of course it is.  It is not unreasonable to be an atheist.  Singer, I take it, is an atheist--and rejects the morality of human rights.

This still doesn't quite answer your question about Singer's position on infanticide.  Let me address a friendly-amended version of your question:  Is it reasonable for Singer to hold that toddlers have moral status (i.e., the moral status that, say, adult human beings have) but that infants do not--in the way it would be unreasonable for one to hold that whites have moral status but nonwhites do not, or that men have a greater moral status than women, or that Catholics have moral status but Jews do not?  I am inclined to think that it is unreasonable to hold that toddlers have moral status but infants do not, because I am inclined to think that there is no difference between being a toddler and being an infant that one can reasonably believe warrants the conclusion that toddlers but not infants have moral status.

Now, Boonin's argument about the moral status of human fetuses before the emergence of organized cortical brain activity, unlike Singer's argument for the permissibility of infanticide, does not constitute a rejection of the morality of human rights.  Boonin accepts that infants, newborns, and even unborn children beyond a certain stage of development (namely, the emergence of organized cortical brain activity), have moral status.  Nonetheless, in my book I argue that we who affirm the morality of human rights have good reason to go further than Boonin does and affirm that every human being, born and unborn, no matter what his/her stage of development, has inherent dignity and is inviolable.  Boonin and I disagree, for the reason I sketched in my previous post.

Thanks to this give-and-take with you, Michael, I can now state more clearly what I have been trying to say.  For me, the morality of human rights is bedrock.  One can affirm the morality of human rights and yet reasonably disagree with Robby's position on the moral status of human beings at the earliest stage of their development.   One cannot affirm the morality of human rights and reasonably hold that infanticide is morally permissible.  Indeed, in my judgment one cannot affirm the morality of human rights and reasonably hold that, say, post-viability abortions are morally permissible.

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