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.

Tuesday, March 6, 2012

'Man, That's Whack!'

Surely one of the more delightful attributes of our species is its capacity continually to rediscover, and in so doing continually to rechristen in what turn out often to be the most idiomatically creative and unexpected of ways, certain more or less invariant, recurrent categories of thought.  One such category, I believe, looms large behind Robby's post earlier today - as well as, of course, those posts and other writings that Robby references in his post.  It is the category of what Robby seems to me aptly to call 'moral madness,' which I think might best be understood as a manner of ethical-cultural background condition in which individuals may participate without thereby qualifying as 'mad' in any potentially insulting clinical sense of the word.  And so, I shall argue, it is a mistake to take Robby's use of the word 'mad' for being somehow insulting in this context. 

Now the sort of backgroud condition that I have in mind here consists in a set of widely shared understandings and expectations that, once indeed widely shared, naturally can influence the moral sensibilities, hence the perceptions and actions, of particular individuals.  In such cases one might indirectly characterize the affected individuals by directly characterizing the background condition.  And it seems to me that one's doing this, when the characterization in question is critical in character, amounts to a much subtler and gentler form of criticism than does direct criticism of the individual without reference to the background condition.  Robby, I believe, has done no more than this in using the word 'mad' in connection with a published article advocating a right to engage in literal infanticide, and it seems to me he is entirely right in so doing. 

Why?  Because, when generally or widely shared understandings and expectations of the sort I've just mentioned come to diverge radically from our fundamental natures - or, what is deeply and non-accidentally complementary to those, moral truth - it can be and often is reasonably said that they have become profoundly 'disordered,' 'discordant,' deeply 'out of synch' with who we are, and the like.  And that is what 'moral madness' is.  Sensibilities and dispositons that we might take on, when they are profoundly out of harmony with who at bottom we are, are in a deep sense 'out of balance.'  They're 'out of kilter,' 'in disequilibrium,' hence ultimately 'unsustainable.'  They're 'unhealthy.'  Or, it can be and often is said, they are 'mad,' constituting as they do a kind of 'moral madness,' to employ Robby's phrase once again.  And those who share in such sensibilities and dispositions accordingly share in a form of madness.  They partake of and contribute to - they help perpetuate and propagate - the illness. 

It is telling, however, that when we accuse someone of this form of sharing and participation, we tend to say, not 'you are mad' or 'you are sick,' but instead something like 'this is mad,' 'this is sick' - even 'this is madness,' as in 'madness itself.' We are in effect indicating the condition rather than the conditioned, characterizing the former rather than the latter, and thereby subtly softening the proto-condemnation of the person whom we find to be partaking of the madness.

Surely all of us have encountered this form of observation before.  It is made frequently and lamentingly, not accusingly - and not only by prophets like Isaiah or cultural critics like, say, Philip Rief.  I for one have heard hipsters galore, for example, react to one or another surprisingly 'warped'-seeming practice by saying something like, 'man, that is twisted!'  (It is telling, I think, that our lawyerly word 'tort' is of course cognate with 'twisted.'  It's no accident that it figures in such words as 'contortion' and, even, 'torture.')  In all of these cases it seems to me significant that the word 'that' is used rather than 'he,' 'she,' or 'you.'  It is as if the speaker were more or less explicitly registering the fact that the 'twisted' - or 'mad' - practice in question has, alas, come to be common enough as to mitigate somewhat the culpability of the latest observed perpitrator and propagator. 

Hence when one uses the term 'mad' as did Robby, it seems to me, little if any aspersion is thereby cast upon any particular individual who has thought, acted, or written in conformity to and thereby manifested the form of madness - the ultimately disordered manner of thinking - in question.  No claim is made or implied, in such case, to the effect that some individual is in some sense uniquely or unusually 'mad,' as if in need of some individualized course of pscychotherapy that few others require. Indeed, quite the contrary.  For the claim is that things have come to a mad pass in the culture at large, or some sizable sector thereof, when some deed, practice, or proposition that clearly is disordered and monstrous by objective lights suddenly can be done, practiced, or proposed without serious repercussion or even remark, or be countenanced as 'perfectly normal' and unobjectionable in that culture or sector.  One is saying, in using the word 'mad' in such case, something of the order of 'My God, what have we come to?'  (Or, to invoke Robby's and my mutual occasional inspiration, Leonard Cohen, s/he is noting with astonishment that 'it's come to this.')  

If I might be pardoned a pun, then, it's 'nothing personal' to characterize a serious suggestion to the effect that babies be permitted to be put to death as 'mad.'  For indeed its impersonality is the very point of the characterization.  It is being said that there is a deep disorder in the state of widely shared understandings and expectations themselves when such things can be offered as serious, rather than Swiftian satirical, propositions.  A sort of threshold has been crossed in such case, into a profoundly unhealthy and ultimately unsustainable way of thinking and feeling.  The absurdity that once served as endpoint in a successfull reductio ad absurdum argument has come to be regarded as unsurprising, as 'perfectly normal.'  And what is madness of cultural background condition if not that condition's allowing for the 'normalization' of absurdity itself? 

I suggested in opening this post that the category to which I take Robby to be appealing is a venerable one, regularly appealed to by many, many people through time and across geographical space under a delightful variety of names.  Here now are a few more examples, with which I shall close.  Considering them all together, it seems to me Robby's in very good company:  

I'll start with a favorite, to which I allude in the title of this post:  Many of my friends in the OWS movement this past autumn, when asked what it was that had prompted their crie de couer, would gesture to the stunning opulence that surrounded them at Zuccotti Park on the one hand, then reference the continuing widespread unemployment, poverty, and stagnation of incomes at all strata beneath the top 1% on the other, then say, 'man, that is whack!'  The idea, of course, is that this particular form of imbalance is in a certain sense crazy, mad - 'out of whack.'  The wealth and income spread is so lopsided as to be both historically absurd (as it indeed is relative to the historical trendlines) and profoundly disequilibrating (as it indeed is if an empirical project that I'm now completing is sound) - so far a departure from the longer term mean, 'golden' or otherwise, as to be unsustainable.

The 'w' term also, of course, has come to be used by many 'Occupiers' and others in connection with other seemingly 'mad,' 'crazy,' 'disturbing' developments or prospects now treated as serious policy options in contemporary political discourse.  One such, of particular sensitivity to many of us over here in the state of New York, is implicated via another OWS utterance printed or handwritten across many a poster and flyer these days: 'Frack is whack.'  (For those not following this dispute, there are regular reports from Pennsylvania, where the practice of hydorfracking has been underway for a while, of literally flammable fumey 'water' flowing from the taps in people's homes.  Now that, if true, is whack!)

Against that vocabularial backdrop, it will perhaps not surprise most of our readers to learn that, upon my mentioning the 'after birth abortion' proposal that we've recently discussed here at MOJ to an OWS friend, his reply was, 'man, that's messed up... man, ... that's just whack!' 

More examples:  Go back about 50 years, now, to the days of 'Mutually Assured Destruction' - yep, 'M.A.D.' - as a publicly embraced military/defense posture, and you'll find many cries of 'madness,' 'insanity,' and the like from church and other leaders who found reason conscientiously to object to dominant public opinion.  Letters of course flew in abundance toward President Kennedy and Premier Kruschev during the so-called 'Cuban Missile Crisis' of the era, many of them calling for a 'stop' to 'the madness.'  But of course none of these letter-writers were suggesting that Kennedy or Kruschev were individually in need of psychotherapy.  They were suggesting, rather, that 'things' had 'got out of hand.'  Out of control.  Out of bounds.  Out of sustainable, healthy normalcy.

Go back another 20 years or so from there, and you'll learn that an epithet commonly used by soldiers during the Second World War to characterize the chatotic state of things 'on the ground' during the worst of the war was 'SNAFU,' which of course stood for 'situation normal, all fouled up.'  They were saying, in other words, that things were disordered, out of balance, barely intelligible - 'whack.'  The situation was 'madness.'  All was akilter.  No individual was thereby said to be uniquely ill.

About the same time as that, of course, people often wondered aloud at how entire societies - in particular, the German and Italian societies of the era - could have 'fallen prey to national hysteria' or even 'gone mad,' as if in a state of mass psychosis.  Take a look at the paintings of Otto Dix done in the era immediately preceeding the coming of fascism, while you are at it, and you will find eloquent visual testimony to the effect things were 'whack' in the Weimar period too - all thanks to the profoundly disequlibrating effects of draconian reparations requirements placed upon Germany by the victorious but vindictive allies after the First World War, as J.M. Keynes ominously prophesied in his first widely read work.  And, once again, no particular individual, apart from the literally one who was indisputably mad, was thereby singled out as in need of therapy.  

One could go on and on, both back to ancient times and sideways to now distant lands, and again find much evidence of widespread awareness of this sort of 'cultural whack' category to which I refer. Consider Heraklitos's and Diogenes's conviction that the Hellenic societies of their days had fallen away from the logos and in so doing had fallen away from a fundamental form - indeed the very touchstone - of health and sanity.  Or Confucius's conviction that the Han society of his day had lost contact with the tao, as evidenced by children's falling away from filial piety and leaders' demonstrating more concern for the trappings of wisdom and authority than for wisdom and tao-grounded authority themselves. Or the Hindu idea of dharma-rooted 'karma,' pursuant to which departures from the order of things bring Newton's-Second-Law-style compensating, recalibrating events. 

Or the reaction of many contemporary Chinese late last year when the hurry of frenetic capitalist development led countless witnesses simply to keep walking past after an automobile had run down a child in the street.  (In effect, many who reacted in horror to this news said, in Mandarin, 'what have we become?' - or, 'man, that's whack!')  A latterday replay, that, of the notorious New York story from the 1960s, during which people are said to have ignored the shouts wrought by an armed attack on a street below their windows which ultimately ended in murder.  (That story's now said to have constituted a sort of apocryphal 'urban legend,' but it's legendary status itself speaks to the point here.)  It is no accident, I suspect, that we describe the renewed cultural self-examinations that often occur in response to such events as 'public soul-searching.'  To let things 'go whack' is, in a way, temporarily to 'lose [sight of] our souls.'  It is to 'go mad' in a certain shared sense.  It is to become so hurried and harried as to think lives dispensible as mere inconveniences. 

In a way, the sickness, and accompanying madness, to which we all seem to have fallen prey to one degree or another is particularly well captured by a film that I think made the art house circuit (at least in the UK, where I lived at the time) back in the late 1980s - Koyaanisqatsi, I think it was called, which someone showed me on DvD, and whose title is taken from a Native American word meaning, roughly, 'life out of balance.'  The idea that strikes one upon viewing this film, like that which strikes one on viewing Dziga Vertov's great early Soviet-era film Man with a Movie Camera, is that so much is happening so quickly and so chaotically that (a) many of the things that matter most - individual lives, for example - are dangerously apt to be experienced as mere irritants in the rush of life, and (b) most of us are apt not even to notice the degradation, degeneration, and deterioration - in a word, the ultimately unsustainable 'moral madness' - that our succumbing to that form of numbness entails over time.   

Surely it's no insult, then, to any particular individual - particularly at Lent! - to suggest that much in the wider world of our shared lives right now is a bit over-hurried and -harried, a bit out of balance, a bit 'out of whack' - indeed, a bit morally mad.  And surely it's therefore no insult to suggest that a pause to reflect upon all this disorder might be ... yes, in order right now.

Again, then, a restorative Lent to all.  

Robert Rodes on Prop 8 and the "metaphysics of marriage"

My friend, colleague, and teacher, Bob Rodes, has posted a short essay at Jurist on the Ninth Circuit's decision in the Prop. 8 case.  He concludes with this:

[C]an a state base its laws on a metaphysical insight? In a word, yes. The equality of the races is a metaphysical insight, and all of our civil rights laws are based on it. Furthermore, the laws defining marriage, unlike the civil rights laws, do not coerce anyone. They express the metaphysical stance of the state without compelling anyone to adopt that stance. The main objection to its doing so is that it excludes people from the mainstream, whose metaphysical stance is different from that of the state. The primary answer to this objection, I believe, is that it belongs to the community as a whole to define its mainstream. We have wisely given our courts the task of protecting cultural minorities, people who differ from the mainstream in their beliefs, their practices or their lifestyles, and to shield that protection from the vicissitudes of politics. However, it is the task of the people, not the judiciary, to define the mainstream, and to do so through the democratic, political process. In this process, the people are sometimes wiser than their rulers, or the judges who have assumed their role.

Check out, by the way, his latest book, "Schools of Jurisprudence".

Lumen Christi Institute's Graduate summer seminar on Aquinas and Law

Check this out.

 

 

The Lumen Christi Institute for Catholic Thought is pleased to announce that applications are now open for the 2012 Summer Seminars in the Catholic Intellectual Tradition.  Each seminar in the Lumen Christi Summer Seminar program is designed to address a perennial theme, question, or text in the Catholic philosophical, theological, spiritual, or social traditions.  We draw upon world renowned scholars to teach graduate students and untenured faculty from our nation’s premier universities, in order to foster a better understanding of and appreciation for the wisdom of the Catholic intellectual tradition.  Books, lodging, and travel will be included for those whose applications are accepted.  (Note, while Lumen Christi is an institute of Catholic thought, participation is not exclusive to graduate students of any particular religious affiliation.)

In the summer of 2012, the Lumen Christi Institute will host the following seminar:

August 5-11, 2012
University of California, Berkeley
“St. Thomas Aquinas on Law:
An Intensive Seminar on the Treatise on Law, ST I-II, Q90-108″

Seminar Leader:

Russell Hittinger is the William K. Warren Professor of Catholic Studies and Research Professor of Law at the University of Tulsa.  He is also a member of the Pontifical Academy of the Social Sciences and the Pontifical Academy of St. Thomas.  Professor Hittinger is the author of many books, including A Critique of the New Natural Law Theory, The First Grace: Rediscovering Natural Law in a Post-Christian Age, and Thomas Aquinas the Rule of Law.

Location:

The seminar will take place on The University of California, Berkeley campus.  Students will be provided with accommodations and meals in the dormitories on campus for the duration of the seminar.

Topic:

Thomas Aquinas wrote one of the most influential treatises on law, which is indispensable for understanding the natural law approach to jurisprudence, as well as the foundations of natural law approaches to ethical theory.  In this seminar, we will cover the entirety of St. Thomas Aquinas’s Treatise on Law, ST I-II, qq. 90-108.  The seminar will be a five-day, intensive discussion of this primary text and its relationship to the rest of Aquinas’s thought, in particular, his philosophical anthropology, action theory, and theology.  We will focus on becoming familiar with Aquinas’s synthetic method, and the context of the Summa Theolgiae as a whole.

Our discussion of this seminal text will be centered around the following guiding questions: What is the most important to the concept of well ordered liberty, virtue or law?  What are the limits of human law?  How do we evaluate and ground claims regarding human rights?  How can natural law jurisprudence help to solve the problems that face contemporary society?

Format:

This will be a five-day, intensive discussion of The Treatise on Law. There will be two 2 ½  hour sessions each day.  Professor Hittinger will open each session with a lecture, and then we will turn to general, seminar-style discussion of the text and the issues at hand. Students will be expected to make seminar presentations of the material under discussion.

Application Information:

This seminar will be open to PhD students in the humanities, as well as students in law school, from any institution. Applicants will need to provide the following materials in order to be considered for participation: The application form, an updated CV, one letter of recommendation from a member of the program in which the student is currently enrolled, a statement of research interest, which includes an explanation of how this seminar might bear on the student’s current or future research plans, and one example of written, academic work (25-30 pages maximum). Incomplete applications will not be considered.

We will admit 15 students to this seminar.  Application materials must be received by March 30th, 2012.  Application materials can be emailed to [email protected], or they can be mailed to:

Lumen Christi Institute
Graduate Seminar Admissions
1220 East 58th St.
Chicago, IL 60637

Any further questions should be directed to Jennifer Frey, at [email protected]

Application materials must be received by March 30th, 2012.

A.G. Holder provides framework for targeted killings of American citizens

Yesterday afternoon at Northwestern Law School, Attorney General Eric Holder defended the Obama administration's policy and framework for trageted killings of American citizens abroad; a framework that the ACLU called "chillingly broad."

How should we analyze this in light of the Catholic Intellectual Tradition?  Comments are open.

Monday, March 5, 2012

Infanticide and "Madness"

At the "Catholic Moral Theology" site, Charles Camosy notes that "Mirror of Justice has been all over an article which recently appeared in the respected Journal of Medical Ethics titled ‘After-Birth Abortion: Why Should the Baby Live?’" He seems a bit taken aback by something I said:

Now, Robert George calls the argument from the JME article about infanticide “madness.” I can understand this reaction because I also strongly disagree with the argument. But is it really madness? As Peter Singer points out very nicely, if we throw out the Judeo-Christian tradition as our guide, it isn’t clear at all that a newborn infant has the same moral status as a human being who is reading these words. It certainly wasn’t the case in ancient Greece and Rome, and infanticide is still widely practiced in places like India and China where there has been little influence from the JCT. Singer further argues that we are slowly chipping away at the JCT and its speciesist focus on human beings as somehow valuable apart from their interests. Prenatal human children are human beings, he says, but they are not persons because they have no rational and self-aware interests–and we recognize this in our culture through our abortion public policy. Is it “madness” to believe this? Many millions do believe it, and have strong (though, in my view, ultimately misguided) arguments for so doing. I think they happen to be wrong, but if they are not “mad” in claiming that ‘a non-rational human being is a non-person’ before birth, then neither are they mad when they make the same claim about non-rational human beings after birth.

I find what Charles says here very interesting, so I’m going to comment on it at some length.

I am, of course, aware that infanticide was accepted and practiced in ancient Greece and Rome, and is still practiced (usually secretly, with winks and nods from public authorities, and with guilty denials by those who perform the killings and those officials who tolerate and sometimes even encourage them) in places like India and China today; just as I am aware that slavery was accepted and practiced in ancient Greece and Rome (and in the American south until 1865), and is still practiced in some places (e.g., Mauritania) today. But if philosophers, no matter how sophisticated, were to step forward today to argue that slavery is morally acceptable (e.g., because some people would have better lives as slaves than the lives they will lead in circumstances of freedom—you can easily imagine how a clever argument might be constructed), I would call that madness.

Of course, the “madness” I am referring to in condemning the advocacy of infanticide and slavery or their moral permissibility is moral madness. I am not making a clinical diagnosis of a psychiatric condition. I take it that this was obvious, but that Charles is nevertheless troubled that I would say such a thing. But I do say it. And at the risk of giving offense, I will say it again: advocating the moral permissibility of killing healthy newborn infants is moral madness; and it is scandalous, especially in a journal (the Journal of Medical Ethics) expressly directed not merely to philosophers (who—and I confess to being one—enjoy playing with every manner of shocking idea) but to physicians, nurses, and other health care professionals—people whose attitudes shape decisions they make about the lives of real people, including real infants.

Whatever errors of fact and judgment are made possible by the complexities of human development or a prenatal child’s hiddenness in the womb—though in the age of the sonogram, the child is hidden only from those who wish to avert their gaze—it should be plain to see that killing an infant because he or she is unwanted is evil. The advocacy of that, or of its moral permissibility, is what should take one aback, not a declaration by me or anyone else that such advocacy should be denounced as moral madness.

Does that make me seem unsophisticated? Well, then I'll just have to bear the shame of being regarded as an unsophisticated person, because I really do believe that advocating the moral permissibility of killing infant children is scandalous. Anyone should immediately be able to see that killing infants because they are unwanted is unacceptable—even if they have trouble seeing, and are in need of information or argument to see, that killing a human being in the womb is wrong. Killing babies, like buying, owning, and selling slaves (even if we debate whether certain labor practices are exploitative in ways that make them the moral equivalent of slavery), is not something that we should treat as worthy of being considered as a morally legitimate option.

That is not to say that I would, or that I think we should, shun philosophers who advocate the moral permissibility of such deeds, or refuse to entertain their arguments, or discriminate against them in academic hiring and promotion. On these issues, I am an old-fashioned liberal, and only wish that my old-fashioned liberalism were shared by many, many more contemporary academics—especially many who call themselves liberals. It is simply to say that we should not hesitate to say publicly that some things are monstrous, and killing babies is one of them.

But back to those ancient Greeks and Romans and those people in India and China. They were, or are, rational people, and they thought, or think, that there is nothing really wrong with killing babies, especially if they are handicapped or female. So does that mean that it is out of line to denounce the advocacy of infanticide or its moral permissibility as madness? Does it mean that infanticide, though it might turn out to be wrong, is something that we ought seriously to entertain as a possibility for practical action?

Several years ago, I wrote a long review essay for the Harvard Law Review on democracy and moral disagreement. I distinguished moral questions that are intrinsically difficult from moral questions that are difficult, not so much in themselves, but in cultural circumstances that obscure fundamental truths about, say, the inherent and equal dignity of certain classes of persons. With regard to questions falling into the latter category, attention to those truth-obscuring conditions helps us to understand how it can be that large numbers of reasonable people are able to accept even a terrible moral wrong, such as the wrong of treating human beings as chattel property. Take someone like Jefferson Davis, for example. He was by all accounts an admirable person in many ways—honest, generous, civic-minded, and so forth. Yet he believed in the moral acceptability of slavery. And there were thousands and thousands of people in the old South who were just like him—not bad people, but rather basically good people who believed and defended something monstrously evil. In circumstances in which an entire social order and way of life was built around slavery, and where the degradation of the slaves itself tended to reinforce the ideology justifying the slave system and obscure its wickedness, they failed to grasp, or grasp fully, its wickedness. But with those circumstances long gone, thank God, it would not be easy to understand how someone today could treat the advocacy of slavery as legitimate and respectable. Rather, we would, I suspect, greet such advocacy, especially if it were to be published in a journal devoted to, say, social justice by scholars holding mainstream academic positions, as scandalous. However clever the argument, we would not regard or treat the position as respectable. We would more likely denounce it as, dare I say it again, moral madness?

Okay, I can now hear a critic: “But what about you, Professor? Don’t you know that there are people who believe that some of your views are moral madness? For example, they think it is madness (bigotry!) to believe in marriage as the conjugal union of husband and wife, as opposed to a committed partnership of two persons irrespective of sex. And don’t you know that there are people who believe it is madness to regard five-day old human embryos—“clumps of cells, smaller than the period at the end of a sentence on a printed page”—as the equivalent of “living children”? And don’t you know that there are people who believe it is madness to suppose that a little wafer is the body of a crucified and risen Savior who now dwells in an imagined heaven?” Yes, I know all that. But what is its relevance? Advocating the moral permissibility of killing babies either is moral madness—i.e., something we should not seriously contemplate with a view to practical action—or it is not. If someone believes it is, as I do, then he or she should say so. He or she does not lose his or her right to say so, nor should he or she permit himself or herself to be intimidated into not saying so, by other people’s opinions of his or her views—on killing babies or anything else.

Now, let me step back from baby killing and talk about another form of killing whose moral permissibility is sometimes advocated, this time by people on my own side of the life issues: killing abortionists. I regard this, too, as madness. That is not because I think abortionists are not objectively guilty of grave injustice against their victims; nor is it because I believe it is impossible to construct a clever argument for it. In fact, I know exactly how one could construct such an argument, and I’m sure readers do, too. And, again, as a purely theoretical matter, or as the punch line of a reductio ad absurdum argument—one that is occasionally run in one form by pro-choice people against pro-lifers, and in another (satirical) form, as I have myself done, by pro-life people against people who are “personally opposed to abortion” but pro-choice—I have no objection to it. But I think it is outrageous to promote or seriously entertain the idea of killing abortionists with a view to practical action. When the late-term abortionist George Tiller was gunned down (at the church he attended) a few years ago, I published this comment:

Whoever murdered George Tiller has done a gravely wicked thing. The evil of this action is in no way diminished by the blood George Tiller had on his own hands. No private individual had the right to execute judgment against him. We are a nation of laws. Lawless violence breeds only more lawless violence. Rightly or wrongly, George Tiller was acquitted by a jury of his peers. “Vengeance is mine, says the Lord.” For the sake of justice and right, the perpetrator of this evil deed must be prosecuted, convicted, and punished. By word and deed, let us teach that violence against abortionists is not the answer to the violence of abortion. Every human life is precious. George Tiller’s life was precious. We do not teach the wrongness of taking human life by wrongfully taking a human life. Let our “weapons” in the fight to defend the lives of abortion’s tiny victims, be chaste weapons of the spirit.

So now I hear a very different critic: a pro-life critic who says, “hold on, Professor, you can’t compare innocent little babies who have harmed no one to an abortionist who kills thousands of innocent little babies.” But my point here is not to compare different forms of killing along every dimension. It is to denounce as madness—in the moral sense—forms of killing of whatever type that ought not to be seriously entertained as possibilities for practical action, even if clever philosophical arguments can be confected in their support.

Now back to Charles Camosy’s post. Let me again quote part of what he says:

Prenatal human children are human beings, [Peter Singer] says, but they are not persons because they have no rational and self-aware interests–and we recognize this in our culture through our abortion public policy. Is it “madness” to believe this? Many millions do believe it, and have strong (though, in my view, ultimately misguided) arguments for so doing. I think they happen to be wrong, but if they are not “mad” in claiming that ‘a non-rational human being is a non-person’ before birth, then neither are they mad when they make the same claim about non-rational human beings after birth.

If Professor Singer in fact says what Charles reports him as saying, then I think he is mistaken. We do not "recognize in our culture through our abortion policy” that "prenatal children are human beings, but are not persons because they have no rational and self-aware interests." Our abortion policy (to the, alas, very large extent that it is "pro-choice") has been established by the courts on the fundamental basis of the Supreme Court's 1973 ruling in Roe v. Wade. That decision was a disgrace in its reasoning (or, more accurately, its lack of reasoning); but whatever its faults, it did not base the alleged constitutional right to abortion on the proposition that “pre-natal children are human beings, but not persons because they have no rational and self-aware interests." That might be Peter Singer's view of why abortion should be permitted, and Charles may think (though I don’t) that there are strong arguments for it, but it was not anything remotely like the argument advanced by Harry Blackmun and joined by six of his brethren. Their proposition was that there is some great and quite possibly unfathomable mystery as to when the life of a new human being begins, and that since scientists, philosophers, theologians, and others disagree about that, states are not entitled to base their public policy on a particular view of the matter. Therefore, abortion must be legal through the first six months of pregnancy, and must also be legal when indicated to preserve maternal “health” (understood in the widest possible sense as including “all factors,” even those going beyond physical well-being) even in the third trimester after the child is viable. I would not say that this is moral madness; only that it is appalling science (for reasons Peter Singer could have explained to Harry Blackmun and did once, in the letters section of the New York Times, explain to the apparently befuddled Mario Cuomo) and incompetent reasoning.

Nor do I think, though perhaps I am wrong about this, that millions of people share Singer's view that unborn children are human beings but aren't bearers of intrinsic worth, dignity, and rights (in other words, they aren't "persons") because to have worth, dignity, and rights it's not enough that one be a human being—you've got to be something that some human beings are and others (unborn children, infants, severely mentally handicapped people, people suffering from advanced dementias) are not, namely, a "person." If millions of people believed that, then (since the implications for infanticide are clear, and were clear before the Journal of Medical Ethics published its recent paper), then millions of people would think that infanticide is perfectly morally permissible. The same for actively killing very severely mentally handicapped people and people in comas and minimally conscious states. And I don't see evidence of that. The vast majority of pro-choice people I talk to are not Singerites. They are people who have been sold the idea that we can't really know "when life begins" or "when an immortal soul enters the body," or some such false (anyone interested in when life begins can look it up in any work of modern human embryology or developmental biology) or irrelevant (ensoulment simply isn’t the issue—laws against homicide are not premised on a belief in immortality, and atheists cheerfully support them) thing. Often, they imagine that it is a deep "religious" question of some kind that is opaque to reasoning, and that therefore prohibiting abortion before [choose your arbitrary “marker event”: fetal viability, the capacity to feel pain, “quickening,” the emergence of detectable brain functioning, heart beat . . . ] is an imposition of religious doctrine.

Now, having doubled down on my claim that advocating infanticide or its moral permissibility is moral madness—killing babies is not something we should consider a legitimate possibility worth discussing as a real option on the table for practical action—let me also admit that I think the best argument for permitting abortion (best in part because it does not rest on a misunderstanding or misrepresentation of well-established scientific facts about when the lives of human beings begin) is the argument that in the end logically drives us over the moral cliff into supposing that it is not wrong in itself to kill newborn infants because they are not yet “persons.” In other words, it leads us precisely to the position defended by Giubilini and Minerva in the Journal of Medical Ethics. To me, it shows that we should regard elective abortion as deeply unjust and therefore morally indefensible.

A couple of concluding points:

First, to say that the argument for the moral permissibility of abortion that leads to infanticide is the best argument for legal abortion is not to say that it is the only one. As Charles Camosy points out elsewhere in his posting at “Catholic Moral Theology” there are other arguments for legal abortion. “One could,” he says, “support abortion rights for many reasons which have nothing to do with the moral status of the child: one might reasonably believe that prenatal children deserve equal protection of the law, but also that this doesn’t require women to sustain them with their bodies; one might believe that there is no good way to get the laws banning abortion enforced without seriously hurting the common good; one might also, based on history, have some hesitation to return to a time where there was broad government regulation of a woman’s reproductive capacity. There are others, but this covers most of them.” Like Charles, I do not find these arguments compelling (in fact, I think they can be shown to be quite weak), but they have been advanced by reasonable people of goodwill, so they certainly should be engaged in a thoughtful and civil manner. Patrick Lee and I do that here: http://www.blackwellpublishing.com/content/BPL_Images/Content_store/Sample_chapter/1405115475/Cohen_sample%20chapter_Contemporary%20debates%20in%20applied%20ethics.pdf

Second, Giubilini and Minerva, as well as the editors of the Journal of Medical Ethics, report receiving a barrage of hate mail, and even death threats, from people identifying themselves as pro-lifers and even Christians. Having been on the receiving end of hate mail and death threats, I know first-hand how horrible it is. On this issue, I stand in solidarity with the authors and editors. Whatever their errors (or mine, or anybody else’s) there is no justification for hate mail and death threats. The advocacy of injustice, no matter its species, can be criticized and even denounced as outrageous (or mad) without hurling personal vitriol or threatening people with violence. One needn’t share Gandhi’s pacifism to take him as one’s guide in this domain: he did not hesitate to condemn injustice and other forms of immorality in very strong terms—terms at least as strong as any I have used in denouncing infanticide and its advocacy; but he did not resort to calling those advocating it vile names or threatening them with harm.

Comparing the current Supreme Court to previous editions

An interesting article on the Supreme Court.  HT: Teresa Collett

 

Law and Religion Events at Touro

Courtesy of MOJ friend Sam Levine, here are a few events at Touro Law Center which look terrific and may be of interest to readers.

First, Nathan Lewin will be giving a lecture on March 20 entitled, “The Legal Profession and the Orthodox Jewish Lawyer — Change Over Half a Century.”  Details here.

Second, on May 2-4, Touro is hosting the biennial Conference of Religiously Affiliated Law Schools, with the theme: “The Place of Religion in the Law School, the University, and the Practice of Law.”  The full conference announcement with speakers listed is now available here, and it includes our confrères Lisa Schiltz and Fr. Araujo. 

Catholic Legal Bibliography

The Catholic University of America's Columbus School of Law has a very helpful "annotated bibliography" of materials relating to the "Catholic Dimensions of Legal Study," here.

Sunday, March 4, 2012

Bowman and Winters on the mandate

Matt Bowman, at Catholic Vote, and Michael Sean Winters, at Distinctly Catholic, are having a conversation that will likely be of interest to many MOJ readers about the mandate, the promised so-called "accommodation," religious freedom, politics, and lots of other good stuff.  Check it out.

Mark Rienzi's "Mirror of Justice" lecture

It's not just the title of the lecture that's good.  Check out CUA law professor Mark Rienzi's lecture (video here), "Religious Liberty, Free Speech, and the Fight for Life."