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.

Saturday, March 19, 2005

Religion in Politics in the UK

By Michael Perry

[Thought that this piece would be of interest to some MOJ readers.  From The Guardian, March 18, 2005. ]

Don't hand religion to the right    

The secular left must stop sniping and realise it has Christian allies

Giles Fraser  and William Whyte
Friday    March     18, 2005
The Guardian

For decades, the political class on this side of the Atlantic has prided itself on the absence of religious culture wars. The obsession with abortion, gay marriage and obscenity, the alliance between the secular and religious right - these are peculiarly American pathologies. It couldn't happen here. After all, we're just not religious enough.

Except it does seem to be happening here. In making abortion an election issue, Michael Howard has prompted the Archbishop of Westminster, Cardinal Cormac Murphy-O'Connor, pointedly to warn against assuming "that Catholics would be more in support of the Labour party". Elsewhere, the Christian right targets the BBC, and the Church of England is being colonised by homophobic evangelicals with broad smiles and loads of PR savvy. No wonder the cogs are whirring at Conservative central office on how best to exploit the voting power of religion.

In contrast, the left continues to push religion away. They "don't do God", in Alastair Campbell's famous phrase. Even those politicians of the left who "do God" privately have to be effectively outed, as Ruth Kelly was over her membership of Opus Dei. It never used to be like this. There has long been an affinity between the church and the left. The Liberal party was sustained by the so-called nonconformist conscience and the Labour party famously derived more from Methodism than Marx - Keir Hardie once describing socialism as "the embodiment of Christianity in our industrial system". Later both CND and the anti-apartheid movement were inspired by Christian socialism.

[To read the rest of this provocative piece, by the Vicar of Putney (Fraser) and a Fellow in History at St. John's College, Oxford (Whyte), click here.]

More on Volokh, Retribution, and the Death Penalty

By Rick Garnett

Continuing the discussion of Eugene Volokh's initial defense of the execution of an Iranian serial-child-killer:  Volokh has just recently added a post in which he says he has changed his mind, convinced by the arguments set out here by Mark Kleiman. 

Whatever one's abstract judgments about the proper severity of punishments, this is a punishment that will not fit with our legal and political culture.

In any event, I much appreciate Mark's instruction on this. Part of me wishes that I could keep disagreeing, out of sheer bullheadedness. But the fact is that he's right, and I was wrong.

This change of mind prompted Kleiman to observe: 

I suppose that Eugene Volokh might eventually have been forgiven in Blogland for his lapse of judgment in endorsing extreme penalties in extreme cases. At least, I would have hoped so.

But he has now gone beyond bad judgment, or even bad taste, and committed an unforgivable breach of blogging ethics. Not merely has he seriously weighed the arguments against a position he prefers -- this, though it sits on the ethical borderline, is admittedly a valid rhetorical device -- Volokh has actually changed his mind in the face of argument, admitting that the institutional point made by Brad DeLong and elaborated in this space counts decisively against his proposal.

Volokh has also put up a long discussion of why "conservatives and libertarians" might want to oppose the death penalty (which Volokh supports).  The arguments he considers tend to emphasize the utility of an anti-death-penalty rule in limiting government generally and also (what he views as) the pro-libertarian pedagogical effects of such a rule.  Actually, I remember conservative pundit George Will making similar arguments against capital punishment, which he characterized as (something like) "just another failed big government program." 

I think there is a lot to be said for these arguments, which seem stronger, to my mind, than many liberal and progressive abolitionist arguments, some of which seem to go too far in minimizing the gravity of capital defendants' offenses and moral responsibility.  Still, although I probably have more "conservative and libertarian" leanings than many of my friends here at MOJ, I would still think that, in addition to these arguments, we ultimately need to rely on (religious?) foundational arguments about love and human dignity to get the job done.

Finally, the back-and-forth about his original post has prompted Volokh to provide a discussion of punishment theory generally:  "It seems to me that retribution is a fundamental and entirely morally proper goal of punishment; and deriding it as some atavistic desire for vengeance is a mistake."  I agree with this observation.  In my view, Catholic discussions about this matter -- including the American Bishops' relatively recent statement, "Responsibility, Rehabilitation, and Restoration" -- sometimes conflate too quickly "retribution" (properly understood) and "vengeance," or assume that retributive theories of punishment are inconsistent with the respect -- and, indeed, the love -- that is appropriately directed to the person.  A just criminal-justice system should, it seems to me, be structured so as to bring about "rehabilitation" and "restoration"; still, punishment is justified because and only to the extent that the criminal deserves it and it will redress the disorder introduced by his offense.

Finally, here's a post about all this by Kaimi Wenger, over at the LDS group blog, "Times and Seasons."

Rick

Friday, March 18, 2005

Volokh on Pain, Punishment, and Vengeance

By Rick Garnett

The first thing that needs to be said with respect to Professor Volokh's post on the execution of an Iranian serial killer is that -- in Maimon Schwartzschild's words -- "Eugene Volokh is one of the loveliest people there is, and one of the smartest and wisest."  (I would encourage all MOJ readers to look at Professor Schwartzchild's thoughtful expression of his disagreement with Volokh).  Few people -- if any -- have done as much work to build bridges, work for common ground, and facilitate discussions among diverse groups in the legal academy as Eugene has.  Everyone who knows Eugene -- who has been a friend and invaluable mentor to me and to many others -- knows that he is charitable, open-minded, and thoughtful.  Unlike Michael, I am not sure I detect "hate" in Eugene's admirably revealing post -- except, perhaps, a "hate" for evil and injustice of the kind perpetrated by serial killers -- even though, in the end, I agree with Michael that it would be unjust to indulge the urge to inflict pain-for-pain's-sake on such killers.

In any event, I would hope that when those of us, here at MOJ and throughout the blog-world, who disagree with the arguments in his post -- and I do disagree with them -- would take care to emulate Eugene's manner and decency in our responses.

I agree with Michael Perry that "[e]ven the most depraved criminal retains his (or her) inherent human dignity. . . .  One cannot forfeit that dignity no matter what one does.  We are called to love -- to treat with charity as well as with justice -- even the most depraved criminal."  And, I agree that one implication of this claim is that I could not endorse -- as Professor Volokh appears to -- the notion that state-imposed punishment (and, in my view, only the common authority can meaningfully engage in "punishment") should or morally could involve the imposition of cruelty and pain for their own sake. 

I would emphasize, though, that "love" for the person, and respect for her dignity, is not inconsistent with, and in my view requires, "punishment" for crimes (even as it constrains the imposition, severity, and nature of that punishment).  The philosopher Jeffrie Murphy has explored and developed this idea in his work.  See, for example, his recent book, "Getting Even" and also his wonderful essay, "Law Like Love."  So, our disagreement with Professor Volokh's statements should not, in my view, lead us to accept the common, but wrong-headed, notion that punishing -- in proportionate, humane, deserved ways -- criminals is immoral or un-Christian.

Rob asks, "Given these objectives, is punishment to be as painless (physically, mentally, and spiritually) as possible, or in fulfilling its duty to discourage improper behavior, especially monstrous behavior, does pain have a place?"  I suppose, as Rob's own follow-up post recognizes, that the answer will be "yes, pain does have a place, insofar as even the justified deprivation of liberty is often experienced as painful.  But, the intentional infliction of pain, for pain's sake would seem would seem to be ruled out by Catholic understandings of intent, intention, and human dignity."

That said, my impression -- having read many posts offered around the blogosphere in reponse to Professor Volokh's own post -- is that, in many cases, the authors seem to be indulging in what is, to me, an unseemly and excessively self-confidence that they are immune to the kind of passions that Volokh describes.  The desire for vengeance is common, unremarkable, understandable, reasonable, and even -- as Murphy argues -- justifiable.  Catholics will have this desire, and to have it is not (as opposed to wallowing in it, relishing it, indulging it, etc.) is not a mark of depravity nor does it mean that one has rejected the Gospel.  Christianity is counter-cultural in calling us, or so we all seem to believe, to put aside -- or, perhaps more accurately, to control the influence of -- this desire.

Rick

Punishment and Pain

By Rob Vischer

Catholic University philosophy prof Bradley Lewis offers the following response to my query regarding a Catholic take on Eugene Volokh's embrace of Iran's approach to executions:

[I]t may be worth noting that barbaric criminal punishment is certainly not unknown in Christendom. Consider the following passage from Blackstone's Commentaries (bk. 4, ch. 6: one can now read Blackstone on-line here)

THE punishment of high treason in general is very solemn and terrible. 1. That the offender be drawn to the gallows, and not be carried or walk; though usually a fledge or hurdle is allowed, to preserve the offender from the extreme torment of being dragged on the ground or pavement. 2. That he be hanged by the neck, and then cut down alive. 3. That his entrails be taken out, and burned, while he is yet alive. 4. That his head be cut off. 5. That his body be divided into four parts. 6. That his head and quarters be at the king's disposal.

One should also observe that there is a note appended to this passage in the text that says the following: "This punishment for treason Sir Edward Coke tells us, is warranted by diverse examples in scripture; for Joab was drawn, Bithan was hanged, Judas was embowelled, and so of the rest. (3 Inst. 211.)." Thus, there is certainly a historical warrant for such punishments within the ambit of Christian jurisprudence.

Be that as it may, I think the Catholic tradition offers ample resources for opposing such practices. Particularly important here is the view of Aquinas, helpfully expounded by John Finnis in "Retribution: Punishment's Formative Aim," American Journal of Jurisprudence 44 (1999): 91-103. The crucial passage in Finnis's paper is this:

The essence of punishments, as Aquinas clearly and often explains, is that they subject offenders to something contrary to their wills--something contra voluntatem (citing Sentences, d. 42, q. 1, a. 2c; Summa theologiae 1a2ae, q.46, a. 6, ad2, and 1a, q. 48, a. 5c, and 1a2ae, q. 87, aa. 2c & 6c). This, not papin, is of the essence. Why? Because the essence of offenses is that in their wrongful acts offenders "yielded to their will more than they ought" (citing Summa theologiae, 1a2ae, q. 87, a. 6c), "followed their own will excessively," "ascribed too much to their own preferences"--the measure of excess being the relevant law or moral norm for preserving and promoting the common good. Hence the proposition foundational for Aquinas' entire account of punishment: the order of just equality in relation to the offender is restored--offenders are brought back into equality--precisely by the "subtraction" effected in a corresponding, proportionate suppression of the will which took for itself too much." (pp. 98-99; I've ommitted most notes)

It's worth noting that in the essay Finnis is opposing Aquinas's view especially to that of Nietzsche as stated in On the Genalogy of Morality (2d treatise). Finnis' point, then, is that pain (if there be pain in some punishment) is an accidental feature and certainly not something inflicted for its own sake. Considerations about just what constitutes a proportionate suppression of an offending will in the context of the overall common good are decisive. At a minimum, it seems to me that the effect of torture not on the one tortured but on the torturer and on the whole community is enough to abolish punishments that involve torture. Of course, it should also be noted that Finnis's points here are not theological, but simply philosophical so far as I can tell. I should think that explicitly theological considerations would only add to the weight of the argument.

Thursday, March 17, 2005

Inherent Human Dignity

By Michael Perry

I concur in what Vince says in his post below.  Even the most depraved criminal retains his (or her) inherent human dignity.  (John Paul II emphasizes this again and again; in this, JPII and the international law of human rights speak with one voice.)  One cannot forfeit that dignity no matter what one does.  We are called to love--to treat with charity as well as with justice--even the most depraved criminal.  I cannot discern how one could agree with what Eugene Volokh says, or do what he recommends, without betraying Jesus's "new" commandment:  "You are to love one another; love one another just as I have loved you."  In my paper, The Morality of Human Rights:  A Nonreligious Ground?, in imagining a person, Sarah, who gives a religious ground for the morality of human rights, I write:

As it happens, Sarah embodies Jesus’s extravagant counsel to “love one another just as I have loved you.” She loves all human beings. Sarah loves even “the Other.”  She loves not only those for whom she has personal affection, or those with whom she works or has other dealings, or those among whom she lives; she loves even those who are most remote, who are unfamiliar, strange, or alien; those who, because they are so distant, weak, or both, will never play any concrete role, for good or ill, in Sarah’s life. (“The claims of the intimate circle are real and important enough. Yet the movement from intimacy, and to faces we do not know, still carries the ring of a certain local confinement. For there are the people as well whose faces we never encounter, but whom we have ample means of knowing about . . . . [T]heir claims too, in trouble, unheeded, are a cause for shame.”) Sarah loves even those from whom she is most estranged and towards whom she feels most antagonistic: those whose ideologies and projects and acts she judges to be not merely morally objectionable, but morally abominable. (“[T]he language of love . . . compels us to affirm that even . . . the most radical evil-doers . . . are fully our fellow human beings.”) Sarah loves even her enemies; indeed, Sarah loves even those who have violated her. Sarah is fond of quoting Graham Greene to her incredulous friends: “When you visualized a man or a woman carefully, you could always begin to feel pity . . . . When you saw the corners of the eyes, the shape of the mouth, how the hair grew, it was impossible to hate. Hate was just a failure of imagination.”

A hateful--hate-full--vengeance permeates what Eugene Volokh says.

Michael P.

Schadenfreude Without Shame

By Vince Rougeau

I do not know what kind of world Eugene Volokh wishes to live in , but it certainly cannot be one in which Christianity has any relevance.  His post left me speechless and deeply disturbed.   Neverthelss, I appreciate his honesty.  No doubt many other Americans share his views and it helps to put a lot of what is going on in our country into sharper perspective.  I would assume that Volokh found the torture memos insufficiently aggressive in their assertions of executive privilege.

I just have a brief response to Rob's questions.  For a Catholic to embrace Eugene Volokh's view is akin, in my opinion, to a rejection of the entire New Testament.   One might as well reject the divinity of Christ.

Vince


More on ProLife Progressivism

By Rick Garnett

A couple of presenters at the St Tommy confab objected to my characterization of their presentations. I'll let the readers judge. The first is John O'Callaghan from ND, who blogged over at Ethics and Culture re my characterization of his presentation of the equivalence argument as a critique of the CE of L itself, as distinct from politicized formulations of it. Here is the link. The other was Kevin Schmiessing of the Acton Institute, who interestingly disassociated himself from my characterization of Novak's critique of the Christian/Catholic social justice tradition as importing secular, "statist" ideology at the expense of the faith's real message. Again, I'll let the readers judge, although I would add that I did not dismiss Kevins's argument that there is a Catholic "antiprogressive" tradition; the evidence for that seems overwhelming. The question for me is whether there is a Catholic progressive tradition. I am glad that Kevin does not dismiss that possibility out of hand. I'm sorry that my short, broadbrush summaries of complex positions did not do full justice to them.

In summarizing my presentation, you wrote that I "did not think

progressivism was very Catholic (especially "progressive" versions of

Catholic Social Thought)." This is not an accurate summary of my paper, nor

of my views.

My paper was titled "Another Social Justice Tradition: The Catholic

Antiprogressives." My argument was that there is a tradition of Catholic

thinking about social and economic issues that is outside of or at least

differs in significant respects from the progressive tradition that was

represented by most of the participants in the symposium. Never did I argue,

suggest, or even imply that one or the other tradition was (or is) "more

Catholic" than the other. My paper had two goals: 1) to describe the

antiprogressive, or conservative, tradition in its broad outlines; and 2) to

suggest that it is consistent with Catholic social teaching--not that it is

consistent exclusive of the progressive tradition; merely that it is also

consistent.

I did use Michael Novak as a representative of what I called a "new version

of the conservative tradition." This does not necessarily mean that I agree

with everything Novak says or writes. (I don't.) It is true that, given the

landscape of contemporary American Catholic social thought, I would fall

more into the "conservative" camp with Novak, than into the "progressive"

camp of Sidney Callahan and John Carr. But I would hope that my ideas could

e engaged on their own terms rather than conflated with those of Novak--or

even others at the Acton Institute--and thereby dismissed.

-Mark

Can the State Inflict Pain?

By Rob Vischer

A serial killer of children was executed in Iran, with the victims' family members participating in a slow and brutal process of stabbing, flogging, and hanging.  Eugene Volokh embraces this approach:

I particularly like the involvement of the victims' relatives in the killing of the monster; I think that if he'd killed one of my relatives, I would have wanted to play a role in killing him. Also, though for many instances I would prefer less painful forms of execution, I am especially pleased that the killing — and, yes, I am happy to call it a killing, a perfectly proper term for a perfectly proper act — was a slow throttling, and was preceded by a flogging. . . . I am being perfectly serious, by the way. I like civilization, but some forms of savagery deserve to be met not just with cold, bloodless justice but with the deliberate infliction of pain, with cruel vengeance rather than with supposed humaneness or squeamishness. I think it slights the burning injustice of the murders, and the pain of the families, to react in any other way.

Putting the question of capital punishment to the side, is there any basis in Catholic legal theory for seeking to inflict pain in our punishment of criminals?  According to the Compendium of the Social Doctrine of the Catholic Church (para. 402), the state "has the twofold responsibility to discourage behaviour that is harmful to human rights and the fundamental norms of civil life, and to repair, though the penal system, the disorder created by the criminal activity."  And in correcting the offender, punishment is to encourage "the re-insertion of the condemned person into society," and foster "a justice that reconciles, a justice capable of restoring harmony in social relationships disrupted by the criminal act committed." (para. 403)

Given these objectives, is punishment to be as painless (physically, mentally, and spiritually) as possible, or in fulfilling its duty to discourage improper behavior, especially monstrous behavior, does pain have a place?

Rob   

Cleft Lip and Palate a Disability Justifying Abortion?

By Michael Perry

[MOJ readers may be interested in this disturbing story:]

Cleft lip abortion done 'in good faith'    

James Meikle, health correspondent
Thursday  March 17, 2005
The Guardian

   Doctors and health officials will consider whether more guidance on abortions is needed following the decision of the Crown Prosecution Service not to prosecute two doctors who authorised a late abortion on a foetus with a cleft lip and palate.

Jim England, the chief crown prosecutor for West Mercia, said the doctors believed, in good faith, that there was a substantial risk the child would be seriously handicapped. "In these circumstances, I decided that there was insufficient evidence for a realistic prospect of conviction and that there should be no charges against either of the doctors," he said.

The inquiry began after a legal challenge over a previous decision by police not to charge the doctors involved in the abortion carried out, in 2001, on an unnamed woman from Herefordshire who was more than 24 weeks pregnant.

Joanna Jepson, 28, now at St Michael's Church, Chester, but then a trainee vicar, found out about the procedure in 2002 when studying abortion statistics and suggested that it amounted to unlawful killing.

Yesterday Ms Jepson said: "While I'm disappointed about the CPS's decision to drop the case, I am pleased the case has raised the issue of late-term abortion and the plight of disabled babies in late-term pregnancy. It has exposed grave discrimination and I will be seeking legal advice."

She said she might try to get clarification from the courts about whether unborn children in the third trimester have got human rights and what constituted "serious handicap".

She might consider whether to re-open a judicial review of the first decision not to prosecute. This was stayed after police decided to conduct a second inquiry into the case, admitting the initial decision was not based on a full investigation.

Ms Jepson was born with a congenital jaw defect, uncorrected until her teens, and her brother has Down's syndrome. Her lawyers had argued that a cleft palate could not be considered as a severe disability.

The prosecutor's decision coincides with heated debate over whether the 24-week limit on terminating pregnancy should be reduced. The 1967 Abortion Act allows for later termination if two doctors decide a child would be seriously handicapped.

The Department of Health would not comment on the case but the Royal College of Obstetrics and Gynaecology said it knew the doctors "were acting in good faith and within the current legislation," adding: "We now need to consider whether further guidance is needed."

Ann Furedi, chief executive of the abortion care organisation Bpas, said: "This is very good news. We were very concerned at the prosecution because this situation arose because somebody who had nothing to do with the particular case took this case to court claiming an offence had been committed."

She added: "Rather than leap into court or the papers, we need to take stock of the circumstance in which women and doctors make decisions around abortion."

The Cleft Lip and Palate Association accepted the CPS verdict. 

"Our concern was that if it was beyond all doubt that all it was a cleft lip and palate, then we could not understand why a decision to terminate had been taken," said the chief executive, Gareth Davies.

Hereford County Hospital's management, where the abortion was performed, reported "many expressions of support" for staff.

Wednesday, March 16, 2005

Chaput on Conscience and Contraception

By Rick Garnett

Archbishop Chaput, of Denver, has an excellent op-ed in the Denver Post, explaining and defending the Church's position with respect to "conscience clauses", Catholic hospitals, and state-law mandates regarding the provision of contraception.

State Rep. Fran Coleman recently criticized the Catholic Church for "preaching" to her because, although she is Catholic, she represents people of all faiths. She took issue with Catholic resistance to portions of HB 1042, which would require hospitals in the state to provide emergency contraception for women who are raped. . . .  At a minimum, Catholic hospitals - which provide their services based on moral and religious convictions about the dignity of the human person - should not be obligated to perform or refer for procedures which violate Catholic teaching. This doesn't involve "preaching" to anybody. It involves fidelity to principle and conscience - the same principles and conscience that animate Catholic service to the poor.

Rick

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