Cross-posted from my personal blog:
In an interesting post on the Schiavo case, Eugene Volokh takes Slate to task for calling into question the Catholic bona fides of Terry Schiavo's parents' effort to obtain a divorce for Terry from Michael. Eugene opines:
I'm by no stretch of the imagination an expert on Catholicism, but I would think that Catholic teachings recognize that even really important principles (such as "no divorce") may have to yield when they run up against a more important principle (such as "preserve human life"). This doesn't mean that the first principle is wrong or insignificant, only that even important moral rules that are usually stated categorically might have some extraordinary exceptions.
I'm not sure why that's right, although, as you'll see, it does appear to be correct.
The relevant ethical principle would seem to be the doctrine of double effect, which in Catholic theology ordinarily requires that four conditions be satisfied:
- The action in itself must be morally good or at least indifferent.
- The good effect, and not the evil effect, must be what is intended.
- The good result cannot result from the bad effect: the good effect must precede or occur simultaneously with the bad effect.
- There must be a proportionately serious reason for permitting the bad effect.
A classic example, with obvious relevance to the Schiavo case, is the use of painkillers at the end of life:
Suppose a dying woman is in severe pain. The normal dosage of pain relievers is not sufficient to control her suffering. The physician knows that in order to control that pain, the minimum effective dose might also hasten her impending death. However, her pain is so severe that the doctor gives her the drug in an amount sufficient to bring her comfort. Her breathing is affected by the pain reliever, and she dies a little sooner than might otherwise have been the case. (Link)
The doctrine of double effect is satisfied here. Importantly, the first condition is satisfied because the action itself, the administration of pain-relieving drugs, is ethically good and proper.
In contrast, as I understand the Slate posting, it suggests that Terry's parents want to obtain a divorce for her from Michael, which would remove him as her guardian, and allow the parents to decide her treatment.
I don't see how the first condition of the doctrine would be satisfied on those facts. The action - obtaining a divorce - is neither ethically good nor even neutral. It is ethicaly improper -- a moral wrong. (I think this follows ineluctably from Pope John Paul II's Discourse to the Roman Rota on Divorce.)
Moreover, is there not a problem with the third condition? The good result - a change in guardians to those who would reinsert the feeding tube - follows from the bad action. It does not precede or occur simultaneously.
On the other hand, there is this passage from the Catechism (para. 2383):
If civil divorce remains the only possible way of ensuring certain legal rights, the care of the children, or the protection of inheritance, it can be tolerated and does not constitute a moral offense.
If a civil divorce may be obtained to protect the rights of children, presumably it also may be obtained to protect the life of one of the spouses. (Note that all other avenues of protecting Terry seemingly must be exhausted, in light of the Catechism's reference to the "only possible way.") This would seem to be what the Pope was referring to in a passage of the Discourse quoted by both Slate and Eugene:
Lawyers, as independent professionals, should always decline the use of their profession for an end that is contrary to justice, as is divorce. They can only cooperate in this kind of activity when, in the intention of the client, it is not directed to the break-up of the marriage, but to the securing of other legitimate effects that can only be obtained through such a judicial process in the established legal order (cf. Catechism of the Catholic Church, n. 2383). In this way, with their work of assisting and reconciling persons who are going through a marital crises, lawyers truly serve the rights of the person and avoid becoming mere technicians at the service of any interest whatever.
So either I'm misapplying the doctrine of double effect or there's some other relevant doctrine that I've overlooked, because I still don't see how you can reach this result consistently with the first and third conditions of the doctrine.
Comments?
If, like me, you are interested in the question of the ground of human rights--more precisely, the ground of what I call "the morality of human rights"--you may want to track down and peruse the two following books:
Roger Ruston, Human Rights and the Image of God (SCM Press 2004).
Thomas D. Williams, Who Is My Neighbor? Personalism and the Foundations of Human Rights (Catholic University of America Press 2005).
(For my struggles with the issues, see here and here.)
Michael P.
The battle over the ability of individuals to exercise moral agency in their professional decision-making appears to be heating up, especially when it comes to pharmacists. Planned Parenthood organized a protest rally in Chicago yesterday to target a pharmacist who refuses to fill prescriptions for birth-control pills. The pharmacist is following company policy by referring customers to another pharmacist on duty or another pharmacy. Nevertheless, according to protesters, "women are shamed and humiliated when a pharmacist refuses to fill their prescription."
UPDATE: If you're interested in this issue, you might want to read my article, Heretics in the Temple of Law: The Promise and Peril of the Religious Lawyering Movement (posted in the right-hand column under my name), in which I take on the contention that lawyers should not take moral responsibility for their professional conduct.
Rob
Tuesday, March 22, 2005
I appreciate very much Michael's help in thinking through these punishment-theory questions. And while I certainly would not presume to "tutor[]" Michael on this matter (!), I will attempt a response: In my exchanges with Rob (here and here), I have stated that moral desert should operate as a necessary justifying condition for, and also as a constraint on, punishment. I have also said that moral desert authorizes (even if it does not require) proportionate, otherwise-permissible punishments by legitimate public authority.
Michael and I agree: No human being ought to be treated in a way that is inconsistent with the relevant moral norm, i.e., love (properly understood). My point has only been that this moral norm does not preclude employing "moral desert" as a justification for, constraint upon, and authorization for punishment. And, at least for now, I do not believe that employing "moral desert" in this way means that, in Rob's words, "the permissible scope of punishments is boundless." (Though I certainly agree with Rob that, if a desert-based punishment theory *did* mean this, then we would want to be leery of that theory).
But (finally) getting to Michael's statement that "if . . . it would be contrary to the charity with which we are called to treat every human being ("Love another just as I have loved you") to punish a human being -- any human being -- in a certain way, then it follows that no human being deserves to be treated that way." I admit it: I do not know if this is right or not. That is, I simply do not know whether or not saying that a person "deserves" X necessarily means that it would be permissible, for any actor, under any condition, to do X to that person. In other words, is it nonsense to say, "we ought not to do to that person what he deserves, even though he deserves it?" I genuinely don't know, but would very much appreciate help figuring out the answer.
Rick
UPDATE: My colleague John Finnis writes:
"Desert" is such an opaque, wrapped-up term that I think Michael Perry's statement need not be denied. Things are clearer when one speaks of what is retributively just. The justification for punishment is, I'd say, the need to restore the just balance of relevant advantages and disadvantages between the criminal and the law-abiding, disrupted by the criminal's selfish preference for doing what he wants over doing what is legally and morally required of him by justice. When the offence is as severe a violation of the victim's rights and thus the law's constraints as in the kind of case you are discussing, the scale/depth/extent of the self-preference is such that a severe repression of the viciously unjust will is required and justified. That his will be wholly and permanently repressed -- and the offender permanently excluded from the advantages of social life -- by his death seems in such cases to be within the retributively warranted measure of retributive justice (which you could call his deserts). However, if causing that death with the precise intent to do so, and a fortiori bringing it about by torture, is the sort of thing nobody should ever be choosing to do to anyone, because incompatible with a rational love of human persons, then (although, as I just said, the result or impact on the offender considered just as impact would not exceed the retributive measure of justice and in that sense his deserts) it is true that no offender ought to be treated that way, and that truth can idiomatically be expressed by saying . . . that nobody deserves to be treated that way.
Notre Dame philospher and MOJ reader Chris Green writes:
It seems to me that Romans 12 suggests that there might be important limits on what punishments is permissible for a human being to impose, but which leave room for God's own justice, founded on genuine desert. Romans 12:19: "Do not take revenge, my friends, but leave room for God's wrath, for it is written: 'It is mine to avenge; I will repay,' says the Lord." People deserve terrible, painful punishments, but it is sometimes wrong for us to mete them out.
Thank you!
A thought for Rick, Rob, and anyone else interested: If it would be wrong for us to punish a human being--any human being--in a certain way (say, by executing him), no matter what he has done--if, for example, it would be contrary to the charity with which we are called to treat every human being ("Love another just as I have loved you") to punish a human being--any human being--in a certain way, then it follows that no human being deserves to be treated that way. That is, it follows that no human being ought to be treated that way--at least, by those of us who are committed to the relevant moral norm, which, in this case, is charity. (The "at least" is for those of us who accept "internal" reasons for action but reject "external" reasons.) I realize that this thought is compressed--I'm on the run. I will soon post a paper--probably next week--that deals with some of this. The paper, Capital Punishment and the Morality of Human Rights, is forthcoming in St. John's Universy School of Law's Journal of Catholic Legal Studies. If Rick or anyone else has a different understanding of moral "desert", I'd like to hear about it. Pending a response, it seems to me that if all things considered one (morally) ought not--if one ought not, for whatever reasons or reasons--to be treated in a certain way, then he does not (morally) deserve to be treated that way. No one morally deserves what we morally ought not to do to him ... unless I'm overlooking some complication. I'm eager to be tutored.
In the right-hand column under my name I've posted a new article, "Legal Advice as Moral Perspective," forthcoming from the Georgetown Journal of Legal Ethics. Here is the abstract:
The legal profession’s many critics have long insisted that lawyers corrode social values by manipulating the law for the benefit of their clients while paying no heed to the wider impact of their work. This familiar charge has garnered new credence in light of the central roles played by lawyers in an already infamous triumvirate of recent public scandals. First, by appearing to offer a legal justification of torture, government attorneys stand accused of facilitating the mistreatment of prisoners held in the war against terrorism. Second, Enron’s attorneys are blamed for facilitating the company’s demise by providing legal cover for management’s destructive obsession with short-term profit. Third, the Catholic Church’s attorneys are seen as having exacerbated bishops’ gross mishandling of the priest sex abuse crisis by adopting an aggressively adversarial stance toward victims. Transcending the dominant caricature of lawyers as lacking social consciences, the article weaves the recent scandals into a story of the pervasive disconnect between legal advice and moral advice – a disconnect grounded in the profession’s presumption that questions of legality can be sealed off from questions of the good. In a departure from leading academic critiques, however, the article casts moral lawyering as a dialogue to be cultivated, rather than the pursuit of a particular moral norm. Specifically, the article argues that an attorney’s moral perspective is inexorably part of the interpretive dynamic that makes the attorney-client dialogue possible. This article traces the paths by which the attorney-client dialogue can be enhanced to delve beyond questions of law and engage the moral perspectives that invariably drive the representation.
Rob
Quite reasonably concerned about identifying limits on punishment, Rob asks the challenging and important question: Assuming a desert-based theory of punishment, "what sort of punishment does Couey not deserve?" Stepping back from the question (just for a moment), I want to emphasize that my primarily points in this conversation have been that moral desert is a necessary condition for punishment -- i.e., that punishment is not justified without moral desert -- and that moral desert constrains the kinds and severity of punishments that may be justly imposed. "Because he needs to be rehabilitated" is, in other words, an unacceptable answer to the question, "why is our political community morally authorized to punish this person?"
Now, back to Rob's hard question. He says, "[i]f retribution is equated with desert, it seems that the permissible scope of punishments is boundless." I think I disagree. That desert functions as a justification for, and a constraint upon, punishment does not mean -- does it? -- that it is the only constraint. I take Rob's point that it is hard to think of punishments that, say, the serial-child-murderer does not "deserve", but I think there will -- or should -- always be reasons (e.g., the brutalizing effect that imposing punishments, even "deserved" punishments, could have), moral and prudential, for not "maxing out" punishments. The fact (at least, I think it is a fact) that someone like Couey deserves serious punishment does not mean that our treatment of him is unconstrained by morality.
Rick
