Friday, August 18, 2006
In a recent post, Jim Dwyer said that “the state’s view of what a person is must be relatively thin. The view currently reflected in the law of western societies is not much more than that a person is a living, post-birth human being.”
In my view, this thin conception suffers from several short- and long-term problems. In the short-term, liberalism (or, at least Jim’s form of liberalism) cedes to the state the power to decide a) who is a person entitled to dignity, respect, and protection and b) what rights will be “conferred” on persons.
Why are unborn or partially born human beings not entitled to the state’s protection? Why are newborns, the elderly, or those with Down’s Syndrome entitled to the state’s protection. Under Jim’s reasoning, as I understand it, the line between protectable and nonprotectable human life is drawn by nothing more than how different categories of human beings are viewed in western society at any given time. If the state has the authority and the power to determine personhood, then it can redraw the boundaries as it sees fit. From this perspective, slavery in American history wasn’t “wrong” it was just a different view at a different time. Operating from a thin conception of the person, one cannot even say that we have a more evolved understanding of personhood than our slave owning ancestors because that would suggest that those enslaved ought to be free, which in turn requires a thicker conception of the person than Jim would allow.
Additionally, if it is the state that confers rights, it can also take away or limit rights. Jim’s thin conception of the person leaves no room for inalienable rights, which transcend the state’s power.
In the long-term, I think it is extremely naïve to think that the liberal state can continue in perpetuity built upon a thin conception of the person. It is hard enough for cultures with a thicker conception of the person to live in faithful accordance with that thicker conception. (A person –or society - can know what the right thing to do is but not have the will to take the right action because of the cost). In a culture where there is no right or wrong built upon the Truth (with a capital “T”) about the human person, the temptation will prove too great, and society will redraw the line between protectable and nonprotectable human life when the existing line becomes too inconvenient. It will also recast the “certain basic rights” conferred on all persons when the existing set of rights proves too costly.
And, this brings me to the question: “Catholic Legal Theory”: What is it good for? Dave Harris wrote, “the key element of CLT seems to be ‘the dignity of the human person and respect for the common good.’ I’m all for that, as I’ve written before. I think it should be fairly uncontroversial that ‘community [i]s indispensable for human flourishing’ and that ‘authentic freedom’ is a good thing.’ And I’m an atheist. Thus I’m not sure what CLT has to add….” As Rorty points out there are many atheists and agnostics who prefer these things – freedom, equality, dignity – but they don’t (and can’t) have reasons grounded in Truth for this preference. One of the things (and I think it is one of the most important things) that CLT proposes is a reason grounded in Truth for human dignity. And, CLT proposes an avenue (through the natural law) for non-Christians to access these truths through reasoning apart from revelation if only the person is open to the possibility of Truth with a capital T.
In short, I think that both Dave Harris and Jim Dwyer fail to fully appreciate the truly radical nature of Catholic Church’s claim that each and every human person has a dignity worthy of respect by the state and others. Living out consequences of this claim is always an imperfect struggle. Denying the foundation for this claim (as Jim and Dave do), makes the struggle all but impossible.
My post about the dependency-based theory of justice project prompted the following message from an MOJ reader who used to direct a drop-in homeless shelter, speculating about the theory’s possible application to the obligations of care-givers in that context. He puts his finger right on the thorniest problem in the project – finding the balance between, on the one hand, acknowledging some state of dependency that justifies some special protection and, on the other hand, empowering people in various states of dependency to assert their autonomy. Philosopher Anita Silvers has criticized Alisdair MacIntyre’s project as it relates to disability rights on those very grounds. (Anita Silvers, Formal Justice, in Disability, Difference, Discrimination: Perspectives on Justice in Bioethics and Public Policy 13, 138 (1998).
This reader’s post begins with a brief discussion of how he found MOJ, which is also interesting. It's related to the good, old-fashioned, Esmeralda-in-Notre-Dame-Cathedral-type sanctuary situation taking place right now in Chicago. He wrote:
I originally googled 'sanctuary,' as a result of the present situation in Chicago where a woman who may be deported has sought sanctuary within a church. That led me to the Mirror of Justice web-site and this post.
I'm interested in the subject since as an advocate for the homeless, and a former faith-based homeless shelter founder and manager, I was confronted with situations where guests had broken the law and the question of what responsibilities, morals and ethics are involved when a shelter must make decisions as to continue services, contact the police, etc., come to the fore. I sought clerical input but perhaps because there may be some liability on their part in view of their peripheral involvement, I wasn't able to obtain any definitive answers. (It was interesting to see in newspaper articles about the Chicago situation, that 'U.S. courts have definitely rejected any notion of sanctuary within the church - local law enforcement officials are more held back only by the prospect of damaging public relations if they are portrayed fairly or unfairly as 'jackboots.')
The reader continues with the following comments about the application of the dependency theory of justice to the situations he saw in his work at the shelter.
Our guests live on the street and in the woods. We can see them wearing out to the point where we know death is imminent. In the absence of family, we are as near to the meaning of the term 'caregivers,' as any other persons. For some of our folks, an involuntary commitment to a psychiatric clinic or hospital may save their life for a while longer - they can detox and receive medications to alleviate physical and mental conditions. In Virginia, however, where we are located, there is a 72-hour limit on the time of any involuntary confinement, and there is no requirement at all in the area of discharge plans. They are frequently placed in a taxi and driven to the door of the shelter in the wee hours of the morning.
Perhaps, I was thinking, where the article states, "the dependency theory of justice might be applied to two concrete areas of law - disability rights and consumer protection," it might also be applied, somehow, to the jobs of caregivers like homeless shelter managers who in the course of their duties, may from time to time, actually know what's best for their guest, even if that guest resists? Perhaps mine represents the opposite viewpoint of those who advocate for the freedoms of the disabled to make their own decisions all the time. In our world, however, in reality, it grants our guests the freedom to die faster than what we usually and tragically term the 'slow suicides,' of many of our guests.
Lisa
Professor Eric Claeys (Saint Louis University) has a new paper, "Justice Scalia and the Religion Clauses," which might be of interest. Here is the abstract:
This Comment was written in response to an article by Garrett Epps (Oregon) for a conference at Washington University-St. Louis on the Rehnquist Court and the First Amendment. Epps's lead article criticizes the Court's moderate/conservative majority as a separationist: the Court majority took too far divisive opinions Justice Scalia holds about religion and public life. The Comment provides a religionist response: Epps makes novel insights about Justice Scalia, but the Rehnquist Court did not threaten the separationist commitments in religion case law nearly as much as Epps suggests, and in any case a healthy republican community needs religion in its public square.
The Comment may be of general interest for three reasons. First, using original sources, it restates concisely the religionist case for accommodating religion into civil and political life. Second, it uses the the religion cases to consider whether Justice Scalia prefers originalism for its own sake or as a means to promote other policy values, particularly judicial restraint and democratic majoritarianism. Finally, the religion cases help correct leading retrospective portraits of the Rehnquist Court. These cases reveal important commitments, both interpretive and substantive, that influenced Justices Kennedy and O'Connor to ally with or abandon the Rehnquist Court's most conservative Justices.
Check it out!
Thursday, August 17, 2006
On September 15-16, 2006, Ave Maria School of Law will be hosting a conference on Pope John Paul II and the Law. The conference is supported by a generous grant from Our Sunday Visitor Institute. Jane Adolphe, Father Robert Araujo S. J., Gerry Bradley, Howard Bromberg, Jason Eyster, Father Kevin Flannery S. J., Kevin Lee, Richard Myers, and Ed Peters will be speaking at the conference. The papers from the conference will be published in the Ave Maria Law Review. Conference information (schedule, registration form) is available here.
Richard M.
For those who are interested, an amicus brief -- which I co-authored with Prof. Michael Paulsen (Minnesota) -- in support of the United States' position that the federal ban on partial-birth abortion should be upheld is available here. Here is the first paragraph:
For as long as the American public has known about partial-birth abortion, we have—by comfortable and consistent margins—agreed with former Senator Daniel Patrick Moynihan that this gruesome practice is “infanticide, and one would be too many.” Whether we oppose elective abortions as a matter of moral principle or regard a woman’s legal access to abortion as a component of ordered liberty; whether we regard this Court’s decisions in Roe v. Wade and Planned Parenthood v. Casey as occasions of dramatic and damaging judicial overreaching or as vindications of privacy and autonomy; and whatever our views might be on a wide range of economic, social, and political questions, we have repeatedly and overwhelmingly concluded, in jurisdiction after jurisdiction, that partial-birth abortion is a barbarism that may and should be prohibited. This conclusion is entirely consistent with our shared, abiding commitment to individual freedom under and through the rule of law, and it is one that our Constitution permits us to embrace. In our “democratic society,” the debate over partial-birth abortion continues, and this Court should not cut it short.
There's a really interesting perspective on abortion in today's Wall Street Journal, Petitioning for Life, by Julia Gorin. It's a personal meditation on the psychological effects of the former Soviet Union's acceptance of routine abortions as a form of birth control. It begins:
The Web site of Ms. Magazine--yes, it still exists--is calling on readers to sign a petition: "I have had an abortion. I publicly join the millions of women in the United States who have had an abortion in demanding a repeal of laws that restrict women's reproductive freedom."
Well, so much for the right to privacy. If Ms. readers hadn't had so many abortions, there might be more Ms. readers. As for the rest of us, here's a petition we could all sign: "I wasn't aborted."
Having narrowly escaped being aborted, I'd be the first in line.
Like most Soviet-era fetuses conceived in Russia by couples who were already parents, I was scheduled for abortion as a matter of course. In a society where abortion was the only form of birth control, it wasn't uncommon to meet women who had double-digit abortion counts. Often a couple would schedule the appointment before they even stopped to remember that they wanted a second child.
Lisa
Wednesday, August 16, 2006
I've posted a paper that I presented at this past spring's St. John's conference on The Jurisprudential Legacy of John Paul II. The paper is called "West, MacIntyre and Wojtyla: Pope John Paul II's Contribution to the Development of a Dependency-Based Theory of Justice." The abstract follows. I'd be grateful for any comments or suggestions on any aspect of the paper, since I hope to explore how this theory might apply to substantive areas of law such as disability and consumer law.
In recent decades, proponents of a strand of feminist theory variously referred to as care feminism, cultural feminism, or relational feminism have been arguing for a social re-evaluation of what has traditionally been regarded as women's work - the care of dependents, such as children and elderly or disabled family members. As part of that project, a number of feminists have suggested that the traditional liberal theory of justice, based on the ideal of autonomous, independent actors, should be rejected, or at least revised, to reflect the reality of dependency in the life of every individual.
A number of writers have begun to explore the application of a dependency-based theory of justice in other contexts. In her recent book, Re-Imagining Justice (2001), legal scholar Robin West placed the dependency-based theory into a more general theory of justice with applications that extend beyond the concerns of women engaging in caregiving. The philosopher Alisdair MacIntyre, in Dependent Rational Animals (1999), after acknowledging his debt to the feminist writers, went on to apply their insight to general systems of moral philosophy. He argued that a recognition of the inevitability of periods of dependency in all human lives necessitates political and social structures that protect all members of society unable to advocate for themselves due to various conditions of dependency - children, people with disabilities, and the aged.
I have argued elsewhere that the writings of Pope John Paul II on women are in many significant ways compatible with much of this emerging strand of feminist theory. In this article, I explore the extent to which his writings support a general dependency-based theory of justice, such as those being developed by West and MacIntyre.
I conclude that the writings of John Paul not only support, but significantly advance, the project of articulating a general dependency-based theory of justice, with applications beyond the context of supporting motherhood. Even proponents of a dependency-based theory of justice who are not comfortable with the vocabulary of faith used by John Paul might borrow from him certain concepts that could be translated into secular vocabulary that would strengthen their arguments: acceptance of gender-based distinctions in gifts and perspectives that support arguments to restructure the workplace to allow fuller participation of women; a recognition of the full spectrum of human dependency conditions entitled to protection under this theory; and acknowledgment that the human condition of dependency might justify a right of dependents to receive care, as well as a right of care givers to provide care. At the same time, proponents of a dependency-based theory of justice who are motivated by faith convictions must acknowledge the persuasive power of many of the arguments presented by dependency-based theorists in purely secular terms such as those of West and MacIntyre.
I end the article with some preliminary thoughts about how the dependency based theory of justice might be applied to two concrete areas of law - disability rights and consumer protection.
Lisa
