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.

Monday, May 31, 2010

Transparency, big government, and big business

By Robert George

Thanks, Michael P., for asking about my views regarding transparency.  I think that transparency is usually (though not quite always) a good thing in the legislative process.  As you rightly suggest, transparency is especially valuable and important in circumstances in which significant financial interests are at stake.  That is why President Obama's betrayal of his oft-repeated promise of transparency in the crafting of health care legislation was so disappointing. It was equally disappointing that so few of the President's supporters criticized him when New York Times reporter David Kirkpatrick exposed his administration's pattern of back room dealing with big pharmaceutical and insurance interests.

In the reforms of the financial industry, I certainly hope for a great deal more transparency.  I also hope that my Republican confreres will not suppose that their job is to protect the industry against reforms.  Big business (including big banking) is not bad in itself, but it is not good in itself either.  And big business (including big banking) can become the enemy of competition and other principles and practices that favor and foster the common good.  Indeed, big business too often supports and promotes big government (i.e., government that disrespects and undermines the principle of subsidiarity) because big government serves its financial interests.

Of course, when it comes to reform of anything, everything depends on the content of the reforms.  "Reform" can be misguided, and when it is misguided Republicans (and everyone else) should stand up against it, even at the price of being labeled by their partisan opponents as "enemies of reform" or "protectors of corporate interests."

Sometimes it is supposed that big government is needed to regulate big business; but actually small but strong government can almost always do the job, and is often more likely to do it better.  When big government and big business get together, it is generally small business, entrepreneurs, and the public who end up on the losing end.  And then there is the problem with banks and other businesses that are "too big to fail."  My view is that if they are too big to fail, then they are too great a risk to the taxpayer, the market economy, and our nation's overall economic security.  So I would join Bill Kristol in saying that if a firm is too big to fail, we should closely inquire into whether the overall public interest would be best served by breaking it up into smaller firms. I loathe corporate welfare and bail outs. I think that many of the things that went on at Freddie Mac and Fannie Mae were disgraceful and that these institutions should either be fully privatized or euthanized.  I believe that Barney Frank and many other members of Congress who functioned as, in essence, enablers of what went on at these institutions should be called to account for their conduct.

Some people evidently were surprised to learn how heavily and disproportionately the super rich and firms like Goldman Sachs supported Obama over McCain.  (Although the media seemed not to notice, Goldman executives gave Obama far more money than Enron exeuctives gave George W. Bush---more than five times as much.)  I was not surprised in the least.  Big business has more to gain and less to fear from big government liberals than from small government conservatives.  (I am not suggesting that McCain was a strict small government man---he was not and is not.)  Moreover, the majority of Wall Street execs and other big business types are social liberals.  Although there are notable and very honorable exceptions, they generally do not support the Republican Party's pro-life stance, nor do they have much sympathy for those of us who dissent from the liberal orthodoxy on questions of sexual morality and marriage.  (If you've ever driven through Greenwich, Connecticut or Scarsdale, New York, you will be aware of what the bumper stickers on the BMWs and Volvos say on these issues.)  So I don't see why Republicans (at least Republicans of my ilk) ought to feel any special kinship with them.  In many ways, they have a great deal more in common with your Democrat confreres.

A clarification for Rick, and, more importantly, an invitation to John O'Callaghan

By Michael Perry

The clarification for Rick:  I posted Cathy's dotCommonweal analysis not because I endorsed it, but because I thought it would help us MOJers think more carefully about the Phoenix case.  The same reason, as it happens, you posted John O'Callaghan's analysis:  not because you endorsed it but because you thought it would help us MOJers think more carefully about the Phoenix case.

Now, the invitation to John O'Callaghan:  namely, to respond to these two quick ruminations on your clarifying analysis:

1.  Given what you (John) say in your analysis:  What KIND of action would it have been had the physician removed the fetus from the mother not by dismembering it, and thereby killing it, but by Caesarean section, and then providing for the comfort of the fetus in every possible way until, inevitably, the fetus died (because delivered months before viability)?  And how should we analyze the morality of *that* action?  In context, would that have been an instance of self-defense, appropriately analyzed under the DDE?

2.  Now, let’s move on to an action that, unlike the C-section described above, is a different KIND of action, namely, an act of intentional killing:  e.g.,  a navy seal steals his way on to an enemy boat in the middle of the night and slits the throat of a sentry so that he can continue with his assignment.  How should we analyze the morality of that action?  Some would say that the sentry is in context not an “innocent” human being and the intentional killing of the sentry is therefore not the intentional killing of an innocent human being.  But what is it that makes one in context not “innocent”?  Imagine an instance of self-defense—or, as in some of your own examples, an instance of other-defense—in which the aggressor is delusional.  We can all agree that the aggressor’s being delusional is probative of his moral culpability, but if it is not also probative of his “innocence”—if he is nonetheless in context not innocent—then in the Arizona case why isn't it the case that the fetus is in context not innocent either?  And if in context not innocent, then how is the situation of the fetus different, in a morally relevant way or ways, from the situation of the delusional aggressor?

Thanks much, John,for helping us all think more carefully about this heart-wrenching case.

O'Callaghan on the Arizona case, Anscombe, and abortion

By Rick Garnett

Prof. John O'Callaghan, a philosopher at the University of Notre Dame, kindly sent in his thoughts concerning the Arizona case that we have been discussing here at MOJ (here, here, here, etc.)  In particular, he responds to my colleague Cathy Kaveny's post about the case, which Michael P. noted -- and, I gather, endorsed -- here. 

I should note that I am not endorsing -- because I do not feel like I have done sufficient reading to be qualified to endorse -- what John writes.  I look forward to the responses of those who have (e.g., Robby).  Also, because the post is long, I have used the split-entry feature.  By all means, though, read the whole thing.  Here is O'Callaghan:  

I think there are a number of difficulties with Cathy’s analysis.  In the first place, if she is correct then it would seem that almost no “medical” abortion would count as an abortion from a “moral” point of view.  Presumably all medical abortions can be described as separating the fetus from its mother.  But in that case, in terms of the way Cathy seems to think about this, all the doctor has to do to avoid performing an abortion from a “moral” point of view is refrain from performing the act under the description “directly killing an innocent” while directing his will to and thus performing it under the description “separating the fetus from its mother.”  (Cathy seems to want to say that it is the seriousness of the situation--threat to the life of the mother--that ought to allow us to analyze the act in this way.  But that can’t be right from the perspective of action theory, namely, that very serious circumstances allow an analysis of intention in action that less serious circumstances would not allow.  Action theory could not care less about the seriousness of the circumstances for the point about the nature of intention in action.)  Thus there would be next to no abortions in this country from a “moral” point of view—a rather different reduction in the number of abortions than even President Obama contemplates.

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Memorial Day

By Susan Stabile

Today the United States celebrates Memorial Day, a day of remembrance of those who have died while in military service.

I confess that I have mixed feelings about the day. On the one hand, I am grateful to those who keep our country safe and who have given their lives to do so. It is fitting that we keep them in our prayers and our memories.

On the other hand, as a Christian, I am concerned that we also never lose sight of the horror of war and the need to promote peace. I’d feel a lot more comfortable if the sermons we hear on Memorial Day contained at least a reminder of the Catholic just war theory and the fact that some of the wars in which our young men and women have lost their lives can not be justified under principles of Catholic social thought. That takes nothing away from the sacrifice of our military personnel, but it helps ensure that we not forget that our obligations to promote peace and an end to war and violence. Indeed, since those who died for our country believed they were doing so to promote peace and justice, their sacrifice was in vain if we do not take our obligation in this regard seriously.

I am also concerned that we remember that it is not just American service men and women who have lost their lives protecting their countries. Our Mass petitions often include prayers for the safety of our soldiers. I silently at those moments add my prayers for all those of those affected by war – not only our soldiers but those who they fight against, and espeically for the civilians whose lives have been devastated by war.

So by all means let us remember those who have died in service to our country. But let us also pray for peace and remember this day all of those who have suffered the effects of war and armed conflict.

[Cross-posted from Creo en Dios!]


Sunday, May 30, 2010

To and fro with Rick, and then Michael Lewis makes the point

By Michael Perry

Rick commented on my post:

"I don't think so. I mean, there's always the danger that we (all of us) are tempted to regard as "serving special interests rather than the common good" those policies that serve others' visions or understandings of the common good. And, I'm enough of a Madisonian to think that the common good, well understood, *can* be (but certainly isn't always) served by the vigorous involvement in politics of groups that are focused specifically on particular issues. Finally, I do not think that "Wall Street" is necessarily a more threatening (to the common good) special interest than many others. Danger is everywhere. =-)"

And then I responded to Rick:

"Thanks, Rick. I'm wary of political-theoretical abstractions. In any event, we both know that some special interests have the potential to do much greater and longer lasting damage to the common good than other special interests. The masters of the financial system, pursuing their own short-term financial interests, have such potential. I shudder to think about the truly devastating consequences, to the well-being of ordinary families--of mothers, fathers, children--and others, of the kind of massive economic dislocations that the masters of the financial system, left to their own, venal devices, can precipitate.

I'm delighted that we both support Simon Johnson's proposal for greater transparency. Not a left-right issue."

And then I noticed Michael Lewis's piece this morning, which nicely makes the point:

To: Wall Street chief executives

From: Your man in Washington

Re: Embracing the status quo

Our earnings are robust, our compensation has returned to its naturally high levels and, as a result, we have very nearly regained our grip on the imaginations of the most ambitious students at the finest universities — and from that single fact many desirable outcomes follow.

Thus, we have almost fully recovered from what we have agreed to call The Great Misfortune. In the next few weeks, however, ill-informed senators will meet with ill-paid representatives to reconcile their ill-conceived financial reform bills. This process cannot and should not be stopped. The American people require at least the illusion of change. But it can be rendered harmless to our interests.

To this point, we have succeeded in keeping the public focused on the single issue that will have very little effect on how we do business: the quest to prevent taxpayer money from ever again being used to (as they put it) “bail out Wall Street.”

As we know, we never needed their money in the first place, and by the time we need it again, we’ll be long gone. If we can keep the public, and its putative representatives, fixated on the question of whether their bill does, or does not, ensure there will be no more bailouts, we may entirely avoid a discussion of our relationship to the broader society.

Working together as a team we have already suppressed debate on many dangerous ideas: that those of us deemed too big to fail are too big and should be broken up, for instance, or that credit default swaps and collateralized debt obligations and other financial inventions should simply be banned. We are now at leisure to address the few remaining threats to our way of life. To wit:

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"Talk to me, baby!" Happy to oblige.

By Michael Perry

Rick says:  "talk to me, baby!"  Happy to oblige.

I think that our politics is often devoted to serving special interests rather than the common good.  I think that our politics is, in that sense, often corrupt.  And let me be clear:  I do not think that our politics is *less* corrupt when the Democrats are in the majority--or *more* corrupt when the Republicans are in the majority.

I think that Simon Johnson is viscerally concerned about this problem--more so than many members of Congress.  And I think that Johnson's proposal, which follows, would be a step in the right direction.

Have I said anything with which you disagree?

[C[ounter the money of Wall Street by bringing much more transparency to the conference.

Televising the conference meetings could help, but realistically this is also likely to push the substantive decision-making and discussion off-line.  Therefore, in addition, congressional leaders should be pressed agree to three non-waiveable rules for the conference and the conference report on the Wall Street reform bills: 

  1. Any amendments need to be posted on-line not less than three business days before any relevant conference meeting.  Second degree amendments (i.e., those filed as amendments to amendments) need at least 2 days notice on the same basis.

  2. The House and the Senate will not discuss any conference report until the report as amended by the conference has been posted on-line in its entirety for at least 5 business days.
  3. A red lined version of the conference report as amended – to show all changes – must also be posted on-line for not less than 5 business days before any vote on that conference report.

Without such provisions – which, by the way, are unlikely to be adopted – no one excluded from the backrooms will have the opportunity to learn what the amendments do or what is in the bill itself. 

The point is not that this would necessarily stop the final and nearly complete victory of special interests.  But at least we will learn which members of Congress exactly sided with them, on why, and even why.  And this will help a great deal as we think about how best to move forward.

Saturday, May 29, 2010

So, what *does* Catholic social theory have to say about that?

By Rick Garnett

I cannot speak for those whom Michael P. calls Robby's "confreres in the Republican Party," and I'm actually not sure what Catholic social theory says, specifically, about the precise contours of financial-sector regulation, but certainly *I* would welcome more transparency in the operations of the Administration and Congress (neither of which is, at present, in the control of Robby's confreres).  Michael, what do you think CST has to say about the matters discussed in the Simon Johnson piece?  As Dennis Miller (or Foghat) might say, "talk to me, baby!"

Kevin Flannery on the Phoenix case

By Richard Myers

Ftaher Kevin Flannery S. J., who teaches philosophy at the Gregorian, has this to say about Cathy Kaveny's position on the Phoenix case:

--- If one follows Thomas Aquinas’s action theory—and I would argue that the Church’s action theory is Thomas’s action theory—the basic error of Kathy’s argument lies in the sentence, "The immediate aim (object) of the procedure is simply to separate the baby from its dependence on the mother’s system, not to kill the baby, either as an end in itself or as a means to another end." The object of the procedure is not the "aim" in the sense of what the agent hopes to achieve but rather the fetus’s skull (or spine or whatever). Scholars who oppose traditional Catholic teaching on cases such as the craniotomy case (and also, for instance, on the use of condoms where one spouse is HIV positive) tend to argue that the object of a human action cannot be physical object such as a skull. This goes against what Thomas says, for instance, at ST 1-2.18.2 ad 1. He also maintains that a moral object (such as a baby’s skull) is a moral object in so far as it is part of the larger structure of a human act [ST 2-2.58.3 ad 3]. These are not incompatible propositions.

In any case, it is the object of the external act that gives it its species, "what it is." What the external act is has a bearing upon the human act’s moral character: that is why Kathy does not want to say that the act is (has the species of) (e.g.) crushing a fetus’s skull. If one knows that such an act will kill the fetus, it is called ‘killing a fetus,’ i.e., killing a human being. The act performed in the Phoenix case apparently had a fetus’s skull (or some other vital part) as its object; that object makes that act to be an act about that object, not about separating the baby from its dependence on the mother’s system—or, at least, not solely about that. Anscombe would not have tolerated such selective descriptions of what one was intending. As she says in paragraph 25 of Intention: "The idea that one can determine one’s intention by making such a little speech is bosh."

---

Richard M.


One case that's not about scandal

By Robert George

There is, I believe, a lot to criticize in the post by Lisa Fullam that Michael P. shared with us. But what I take to be her fundamental theoretical point is sound enough:  it is possible to cause scandal in the very effort to prevent scandal, and that is obviously something very much to be avoided.  I will, however, point out one significant error because it is such a fine example of the logical fallacy petitio principii.  Professor Fullam says:

"Similarly, when the magisterium refuses to strongly support the use of condoms by HIV sero-discordant married couples, they avoid the scandal that people might think that the Church no longer opposes birth control. (In fact, this is a clear case of classic double-effect.)"

Now, as a logical matter, the magisterium's judgment that contraception is wrong and its judgment that condomized sex between spouses (irrespective of motive) is wrong could be mistaken.  (I happen to think that the magisterium's teachings on these matters are not mistaken, but the propositions asserted by the magisterium, even if true, are not analytic or self-evident truths.)  Perhaps Professor Fullam thinks the first of these teachings is mistaken.  She definitely thinks the second is mistaken.  Where she clearly goes astray---straightforwardly begging the question against the magisterium---is in what she supposes or suggests about the ground of the magisterium's teaching regarding the wrongfulness of condomized sex, even when motivated by a desire to prevent infection.

Professor Fullam seems to be presupposing that the magisterium's teaching against the use of condoms (even by couples seeking to prevent the transmission of disease) is based on the view that their use always constitutes contraception.  But the use of condoms does not always or necessarily constitute contraception (Professor Fullam is right about that), and the magisterium is perfectly well aware of that fact (Professor Fullam is wrong to suppose or suggest otherwise).  If the magisterium's objection to condomized sex in the type of case Professor Fullam has in mind were rooted in its rejection of contraception, then it would not object to condomized sex in those cases in which the spouses know with certainty that conception is impossible (for example, where the wife is pregnant or has had her uterus removed).  There is nothing that anyone can do to make an act a contraceptive act in a case in which he knows that the prevention of conception is impossible for the simple reason that conception itself is impossible.  (It is impossible for someone to prevent me from jumping twenty-six feet in the air, or flying to Saturn, or bilocating, because it is not possible for me to jump twenty-six feet into the air, fly to Saturn, or bilocate.)  If a man knows that he or his wife is infertile, then his wearing a condom---or five condoms, or fifty, on top of each other---would not constitute contraception.  He is not preventing conception or trying to prevent conception.  He knows he cannot prevent conception because he knows that conception is impossible.

But imagine that a man and his wife know that a particular act of sexual intercourse might well result in conception.  Further imagine that the husband is HIV positive and the wife is not, and he quite reasonably wishes to avoid the danger of infecting her.  So he wears a condom. Is that an act of contraception?  No, it is not.  (Again, that is the point Professor Fullam is right about.)  The contraceptive effect of wearing the condom is foreseen and accepted but not willed.  Double effect.  Does the magisterium suppose otherwise?  No, it does not.  The magisterium knows that a device or pharmaceutical product that can be used as a contraceptive might also be used for reasons not involving the willing of the sterilization of a sexual act. (What an act of contraception is, is a performance done for the sake of sterilizing a sex act.)  That is why the magisterium does not object to a woman's taking the pill popularly known as "the birth control pill" where her motive is not the prevention of conception, but treating endometriosis or some other health problem.

Now, Professor Fullam might object. She might say that she did not suggest, or at least did not mean to suggest, that the magisterium believes that using a condom is always or necessarily an act of contraception.  She might insist that she was merely saying that the magisterium opposes the use of condoms by married couples even to prevent infection because to approve their use even for that purpose would mislead people into thinking that the Church has abandoned its historic teaching against contraception.  But even if we interpret her in that way, her assumption about the basis for the magisterium's teaching is off the mark.  The bishops are perfectly willing to say that the use of "birth control pills" for non-contraceptive purposes is morally unprobelmatic.  They don't shrink from saying it for fear that it will scandalize people by leading them to suppose that the church "approves the pill."  This should be a signal to Professor Fullam and others that they've misidentified the basis of the magisterium's teaching.

However we interpret her, Professor Fullam begs the question against the magisterium as a result of this misidentification.  The magisterium, whether its teaching is right or wrong, has neither made an elementary mistake about double effect, nor taught imprudently and unsoundly in a misguided effort to avoid scandal.  The ground of the magisterium's teaching on the subject is that a marital act is an act of one-flesh union, viz., an act in which spouses, as a consummation or actualization of the multi-level (biological, emotional, dispositional, rational, spiritual) sharing of life that is their marriage, fulfill the behavioral conditions of procreation, whether or not the nonbehavioral conditions of procreation happen to obtain.  Where a sex act has been condomized, whatever the reasons, it is not an act that fulfills the behavioral conditions of procreation. So it cannot be a marital act.  Condomization, by preventing insemination or at least the biological union of sexual organs, vitiates the marital quality of the act.

Now, if she likes, Professor Fullam could attack the magisterium's teaching on three possible grounds.  (1) She could deny the Church's teaching that every genital sexual act, including those between spouses, must be marital acts in order to be morally good.  (2) She could accept that teaching, yet argue that fulfilling the behavioral conditions of procreation is not necessary for an act of spousal sexual union to be a marital act.  (3)  She could argue that, despite condomization, a sexual act can fulfill the behavioral conditions of procreation.  Readers would then have to assess the validity of her arguments, whatever they were, on the merits.  (A few years ago, Fr. Martin Rhonheimer, a priest of the Opus Dei prelature and an exceptionally subtle and gifted thinker, generated quite a lively and interesting debate on (2) and (3) in an effort to show that the use of condoms by married couples in cases like the one Professor Fulham is interested in is not necessarily wrong.  My own view, for what it's worth, was that Fr. Rhonheimer's arguments were not successful.  Anyone who is interested, though, should have a careful look at them and at the critical literature they generated.) 

"From Religious Freedom to Moral Freedom"

By Michael Perry

Yesterday I posted a new paper to SSRN.  Some Mirror of Justice readers may be interested.  Here is the abstract:

In one or another articulation, the right to religious freedom is a familiar part of national constitutions and of regional and international human rights instruments. The canonical articulation of the right is that of Article 18 of the International Covenant on Civil and Political Rights, to which the United States is one of more than 160 state parties. I argue in this essay that the "logic" (so to speak) of the best case for the right to religious freedom also supports an analogous right to moral freedom. At the end of the essay, I comment on the proper, and properly limited, role of religiously grounded moral premises as a basis of laws and other policies that implicate the right to moral freedom.

This essay will appear in a symposium issue of the University of San Diego Law Review -- a symposium issue devoted to freedom of conscience. A shorter version of the essay will appear in Religion and Human Rights, edited by John Witte Jr. and M. Christian Green (Oxford University Press, forthcoming).

Some of the material in this essay first appeared in my new book, The Political Morality of Liberal Democracy (Cambridge University Press, 2010), the table of contents and introduction to which are available at http://ssrn.com/abstract=1525920.

Comments welcome: [email protected]

[The paper is downloadable here.]

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