My Notre Dame colleague, and MOJ-friend, John O'Callaghan (Philosophy), sends in the following, in response to John Breen's recent post:
Dear Mr. Breen,
As a Thomist, however mediocre an Aristotelian that makes me, I enjoyed reading your ontological thoughts, or better questions posed to those who would suggest that the terms “health” and thus “healthcare” signify subjective determinations of the autonomous power of the speaker wielding the terms when applied to their own persons, and not states of living organisms in pursuit of the goods of existence of the type of organism one is and the acts directed at promoting those states and goods. But in reading it I was also reminded of the sorts of discussions I find myself engaged in in the philosophy courses I teach in which the student believes that because the door to the classroom is closed he or she can say pretty much anything no matter how manifestly absurd, absurdities that he or she would never think of uttering outside the classroom, as for example that he doesn’t know who his father is because knowledge excludes faith, and he has to have faith in his mother to have any inkling who his father is. Those of us who teach philosophy enter every semester thinking things will be different this time, and our students will see the obvious absurdity our counterexamples are designed to elicit to the “everything is allowed behind closed doors” principle that our students have picked up. Alas—no. Horrendous evil only exists in the mind of some as a thought experiment to argue that God cannot possibly exist, not as a reality that presents an opportunity to think about justice and what it requires of us. Our last refuge in the face of such bullet biting is to just say “tell it to your father or mother, or whoever else is footing the bill for this class.”
But this last refuge of a non-philosophical response brings me to the thought that confronting such claims about “health" and “healthcare” with ontology might miss the goal of the social, moral, and political questions that are now being asked about health care and the state’s role in it. Many people are happy with a very large role for the state in the structure of health care. Many people are unhappy with such a very large role. But few people think there is no role whatsoever for the state in healthcare. At the very least the licensing of doctors, nurses, therapists, pharmacists, etc. is a public good that promotes the goals of healthcare as a social good even if the state were to play no more part in it than that licensing role. But there are additional goods that predate the success of the Obama administration in putting forward the Affordable Care Act, goods such as compelling healthcare professionals and institutions to provide healthcare to individuals regardless of ability to pay. I believe it is the case that if you present yourself to a hospital in most, and I think it may be all, states in this country, you cannot be turned away from care because of your inability to pay. Others know the particulars.
But with the involvement of the state comes the coercive power of the state. And so there are at least two problems with the position that the very meaning of ‘health’ and ‘healthcare’ are subjective determinations of the autonomy of private individuals. The first is semantic and bears upon coherence. If the meaning of “health” and “healthcare” really are subjective determinations of the autonomy of private individuals, the state in mandating any sort of legislation concerning “healthcare” is quite literally legislating nothing. Any apparent law involving the terms “health” and “healthcare” are really schema with place markers or variables in them like “X” and “Y”, which of course means that they are not laws at all. Thus the incoherence--the law is not a law.
And this brings me to the second problem with the position, the moral or political. Here what is not a law can only become a law if the place marker or variable is filled in with some semantic determination. But the claim here is that such a determination is the expression of and determined by the autonomy of the private individual pursuing his or her own private interests. So the autonomous private individual in fact becomes the legislator, not the public legislative body. The philosophers among you will of course see the hand of Kant in the ideal of autonomy as self-legislation, each human being being a king in a kingdom of ends, except that Kant only argued for self-legislation as a kind of binding of oneself to an objective moral law that one does not create for oneself or others, but that exists apart from and independently of any autonomous or heteronomous individual. The sort of self-legislation envisaged here by the autonomous-semanticist is quite different since it determines the very character of the law that binds, creating it, as it were, ex nihilo. And here it is a law that does not bind the autonomous individual; no it is a law that binds everyone else to the self-determination of the individual, and uses the coercive power of the state to so bind them.
But one might have thought that it was fundamentally unjust for a private individual to use the coercive power of the state to enslave the lives of others to his or her private interests. Political theorists have a very specific word for such coercion. It is one thing for the state to protect the pursuit of private interests, quite another for it to advance such private pursuits particularly at the cost of enslaving others to them. An ideal of equality or justice as fairness might suggest that if the coercive power of the state is used to advance the private interests of some it ought to be used to advance the private interests of all, to the extent that such massive promotion of private interests would be at all workable. But that really just raises the more fundamental question whether the coercive power of the state can justly be used to advance the private interests of anyone. And on point, whether the state can be justly involved in any aspect of healthcare conceived of as merely the advancement of the interests of autonomous private individuals? Or whether, on the contrary, in justice we ought to say goodbye to all laws that use the coercive power of the state to compel medical treatment of the poor, the halt, and the lame?
Following up on Robby's recent post on Timothy Shah's new book, Religious Freedom: Why Now?, I thought MOJ readers might be interested in this interview with Tim, which is available at "Research on Religion":
What case can be made for promoting religious liberty worldwide? Why is religious freedom often considered the “first freedom”? And should religious liberty really be a strategic objective for US foreign policymakers? Prof. Timothy Shah – associate director of the Religious Freedom Project at the Berkley Center for Religion, Peace, and World Affairs and an a visiting assistant professor at Georgetown University — joins us to discuss the recent monograph he authored under the auspices of the Witherspoon Institute’s Task Force on International Religious Freedom. Tim starts the program by explaining what the Witherspoon Task Force saught to accomplish and also details how his own interests in religious freedom grew from a tragic incident in Gujarat, India. We then dip into a variety of justifications for why religious liberty should be a major concern for both policymakers and civilians around the world, starting with the anthropological reasons behind religious freedom. Justin Barrett’s research, recently discussed on a separate podcast, serves as our anchor here as Tim argues that the innate tendency for humans to seek out the transcendent provides an important justification for promoting religious liberty and the human dignity it requires. Dr. Shah then covers the moral case for religious freedom and summarizes how three religious traditions — Judaism, Christianity, and Islam – view the subject. The topic of apostasy figures into this discussion, particularly as it pertains to the recent case of Youcef Nadarkhani in Iran. Following the moral case for religious freedom, Tony brings up the issue of political and strategic justifications, noting that political rulers often dislike religious freedom since they fear it may promote conflict within their borders, as it did in India. Tim answers these concerns arguing that religious freedom is certainly better than other political options and we engage in a thought experiment based on a scenario where everyone in a population had the same beliefs. That exercise proves enlightening. Along the way, we also ruminate about why so many secular elites — be they policymakers or academics — tend to downplay the vital importance of what is often called “the first freedom.” A few stories about Tony’s visit to the Witherspoon Institute and a 2011 colloquium on religious liberty at Princeton Theological Seminary are sprinkled throughout the interview. Recorded: March 13, 2012
Monday, March 19, 2012
This Friday, March 23, Villanova will host its annual Joseph T. McCullen, Jr. Symposium, and the topic is the moral foundations of private law. Speakers include James Gordley (Tulane), Chapin Cimino (Drexel), Eric Claeys (George Mason), Andrew Gold (DePaul), Jody Kraus (Penn), Nate Oman (William & Mary), Jeff Pojanowski (Notre Dame), and Chaim Saiman and yours truly from Villanova. Details here.
Michael McConnell will be delivering the annual Giannella Lecture at Villanova this Wednesday, March 21, on "Employment Division v. Smith in Hindsight: Ministers, Peyote and the Supreme Court." Details for anyone in the area who would like to attend are here.
As many MOJ readers are aware, next week begins a historic trial in Pennsylvania. In Philadelphia, four priests face criminal charges stemming from child sexual abuse allegations. Three defendants are accused of molesting children and one, Msgr. William Lynn, is the former Secretary for Clergy for the Archdiocese of Philadelphia where his duties included the assignment of priests. He is accused of endangering the welfare of children in his assignments, actions, and failures to act.
I plan on blogging about this case as it unfolds in what promises to be a very interesting trial. The cases raise fascinating legal issues regarding child protection, duty of care, retroactivity, attorney client privilege, as well as others.
I have spared MOJ readers many of the pretrial events which have garnered the focus of the mainstream media. However, an interesting development took place on Saturday raising further questions of ethics and what happens when lawyers start working on behalf of the Church…as opposed to what should happen.
The Philadelphia Inquirer reports that the Archdiocese has suspended its in house counsel less than two weeks before the trial. The attorney, Timothy Coyne, has a long term relationship with the Archdiocese as both in house counsel and the attorney with the firm that handled most Archdiocese matters during the time in question at the trial. According to the Philadelphia paper,
Lynn, who investigated misconduct complaints against priests and recommended their assignments, is accused of conspiracy and child endangerment for allegedly enabling or covering up clergy sex abuse. His attorneys have signaled they may argue he was following the advice of church lawyers.
The trial judge, Common Pleas Court Judge M. Teresa Sarmina, has ordered the archdiocese to be ready to hand over hundreds or thousands of documents, including correspondence between church officials and their lawyers. She is expected to hear arguments on the issue and decide it next week.
This case promises to be an interesting one to watch on a number of levels - institutional responsibility, attorney client relations, vicarious liability, not to mention child abuse and protection. No doubt it could also indicate the viability of the theory of criminal responsibility for covering up abuse of our most vulnerable children.
Sasha Volokh has been writing a series of deeply interesting and thoughtful articles on the phenomenon of the faith-based prison, focusing especially on the effectiveness of faith-based prisons in reducing recidivism and in other ways. Readers interested in the subject will find much to admire in Sasha's careful and provocative work: see here and here. For criticism of Sasha's views, see this short reply by Giovanna Shay.
For my own take on faith-based prisons -- which focuses neither on empirical nor constitutional questions, but instead on the conceptual position, historical and contemporary, of (religious) penance in punishment theory -- see this piece.
This Saturday, March 17th, of course, marked the annual celebration of Ireland’s patron saint, Patrick, Apostle to the Irish people and first bishop of Armagh (see here).
Last Thursday, a few days before the celebration of St. Patrick’s feast, Ireland’s record on human rights under the Universal Periodic Review was discussed a second time at the Human Rights Council in Geneva. A group of six U.N. member states – Spain, the United Kingdom, Denmark, the Netherlands, Norway and Slovenia – had made a number of recommendations concerning Ireland’s law and practice concerning “human rights” (see here).
“Permanent UN Representative in Geneva, Gerard Corr said that of the 127 recommendations made, Ireland had fully accepted 91, a further 17 had been accepted in part and it was unable to support four” (here ). Among the recommendations rejected by the Irish state was a call for the legalization of abortion in support of women’s “health.”
According to Dr. Ruth Cullen, spokesperson for the Pro Life Campaign in Ireland, “Calls for abortion legislation fly in the face of the United Nation’s own recent research showing that Ireland, without abortion, is a world leader in terms of safety for women in pregnancy. Maternal safety in Ireland, it should be noted, is better than in the six countries which last year sought to put pressure on Ireland to introduce abortion. The latest UN study on maternal mortality, published in 2010, shows that out of 172 countries for which estimates are given, Ireland remains a world leader in safety for pregnant women” (here ).
May St. Patrick and all of Ireland’s saints and martyrs continue to look over and guide the people of Eire and their government as they remain steadfast in their commitment to the legal protection of unborn human life. Indeed, just as Patrick, born in Britain and educated and ordained in France, brought the Gospel from Europe to Ireland, may Ireland now continue to have the confidence to share an authentic understanding of human rights – the Gospel of Life – with the people of Europe.
