Mirror of Justice

Monday, December 21, 2009

Thanks so much, Elizabeth , ...

... for picking up on my "respite from political-moral controversy" post.

As between Precious and The Hurt Locker, there is clearly room for a reasonable difference in judgments about which film merits the Oscar (not that I'm holding my breath for Hollywood to be that discerning). Elizabeth's succinct comment about Precious captures wonderfully, I think, what is best about the film. I suspect Elizabeth agrees that Mo'Nique's performance as Precious's mother is flawless.

(Some film trivia: Elizabeth mentions the fact that a woman--her name is Katherine Bigelow--directed The Hurt Locker. Elizabeth also mentions James Cameron's Avatar. Bigelow is a protege (and former wife) of James Cameron. I haven't seen Avatar yet, but based on what I've read, I expect my reaction to be substantially the same as Elizabeth's.)

Contemporary American (Film) Culture, cont'd

By Elizabeth Schiltz

If Michael is inviting us to engage in movie ratings, I feel compelled to contribute. I have a 16-year-old son who is a somewhat rabid movie fan and we take the film awards season very, very seriously around my household. Between my older son who needs someone to drive him to & get him into R-rated art films, and my youngest daughter needs someone to drive her & sit with her through movies like the Hannah Montana 3-D Concert and Beverly Hills Chihuahua, I see a LOT of movies. Plus, I love movies.

I agree with Michael that both craft and content being equally important in judging films. I just saw Avatar yesterday. That's an example of a film where the brilliance of the craft does not elevate the film to "great" status, because of lack of content. It was a visually stunning movie; the CGI and subtle 3D effects were simply dazzling. The movie transported you to another world for a couple of hours -- well worth the ticket price. BUT, the story was basically Disney's Pocahontas meets Peter Jackson's The Return of the King. I found myself wanting to leave the movie early (it's way too long) to get home & watch the Lord of the Rings trilogy again.

I also agree with Michael about The Hurt Locker and Precious being two of the best films of the year. But I'd switch the order. I agree that The Hurt Locker was masterful in both craft and content. (As an aside, it's one of the few war movies directed by a woman. It did not have a single element of conciously portraying any sort of "woman's perspective" on the war. I couldn't help but wonder, though, if that untraditional gender perspective might have given the movie some of the complexity and depth that gave the film its resonance. I'm not trying to say anything like "women are more complex and deeper than men", but rather that the different perspective on such a familiar topic might have changed the focus just enough to engage the viewer more intensely.)

But Precious beats out The Hurt Locker, for me, hands down. That film was one of the most profound artistic presentations of the complexity of the human condition that I have ever seen. The characters in that movie displayed almost every type of behavior you could imagine on the spectrum of evil. The unflinching acting behind those portrayals of evil was truly award-worthy. But the message of that movie was one of the dignity of each and every human being. The most powerful force in that story, more powerful than evil, was the power of love -- most particularly the love that a mother had for two children who came into the world under indisputably tragic circumstances. I think that a movie that can take the viewer through an emotional journal through despair at Precious' circumstances, to the horror of how evil people could be, to end up with a feeling of hope and love, is a great movie.

Sunday, December 20, 2009

On rationing in the new federal health plan

By rstith

Private plans may "ration" care in the interests of profits without seeming to judge who is more worthy to live. But when the political community rations care it appears to make invidious distinctions.
For example, if a private plan charges a higher premium to include cardiac care for those over 65, those having to pay the higher premium will be unhappy but will probably understand that this is just a business judgment that young people have fewer heart problems and does not reflect any notion that older folks are less worthy to live.

By contrast, if the political community (in a government-supervised insurance plan) charges the old more than the young for the same benefit, this may well seem unfair and in fact may become a precedent for further unequal treatments of different ages.

In general, we rightly hold the body politic to different and higher standards, compared to private companies -- not only re health insurance but, e.g., re private vs. state action that discriminates on the basis of religion.

Another possible effect of federally funding abortion

By rstith

The Left should be concerned about the real-world human freedom and equality rather than the nominal equivalents traditionally favored by the Right. (For example, the Right has long been for equal legal freedoms to work, go to school, etc. while ignoring de facto differences in power and wealth that make for unequal outcomes.)

Making abortion financially nearly costless through federal subsidies (as Reid-Nelson may well do, except in those states that refuse the federal funds) appears at first to make women more free, but in fact it empowers those men who control their female sexual partners (especially among the poor). Ordinary abortion is not expensive, but the decision to spend any money at all is a real-world point of deliberation and negotiation. As the cost of an abortion is reduced almost to zero, some women will lose a last locus of possible resistance to their exploiters: "Just you get on down to that clinic, sweetheart. It's free."

The Left should also be concerned about another real-world result (and, for some, purpose) of federal abortion funding: the decimation of minority races. (Shades of the documentary "Maafa21"...)

A brief respite from political-moral controversy: Contemporary American (film) culture

By Michael Perry

Last summer, here at MOJ, I unburdened myself of the judgment that The Hurt Locker was, at the time (June), the best film of the year. This afternoon, my wife Sarah and our older child Daniel (who is 20) went to see the much ballyhooed Up in the Air, with George Clooney. A very enjoyable movie. But The Hurt Locker remains, hands down, the best film of the year. IMHO. (With Precious in second place.) There are--or should be--two sine qua nons in judging the best film--or, better, best films--of the year: (1) content and (2) craft (which includes acting). How can a film, qua film, be admirable, much less great, if its craft is poor ... even if its content is terrific? Or if its content is poor ... even if its craft is terrific? Both the craft and the content of The Hurt Locker are, in a word, superb. I've seen The Hurt Locker twice--and I want to see it again. If you are a cinephile, what do *you* think. If, however, you are indifferent to film--or, worse, a cinephobe--well, condolences!

One of the truly embarassing moments in the cultural history of the American Catholic Church occurred in 1965, when the Legion of Decency (!) rated the powerful, morally compelling film The Pawnbroker "condemned". And why "condemned"? Because the film was the first mainstream American film to show female breasts. OMG! (The scene in which this happened was one of the most powerful in the film--and, for what it's worth, completely non-erotic.)

How to Assess Abortion-Affecting (as Distinguished from '-Effecting') Legislation? A Request for Guidance from Rick

By Steve Shiffrin

Hello again, All,

I'd like to request -- quite sincerely, with no intended irony -- a bit of guidance from Rick in connection with his post yesterday on the Senate's health insurance reform compromise.

To situate what I wish more specifically to ask -- as well as to convince you that my query put to Rick is meant entirely without irony -- let me first say that I'm genuinely a bit on the fence about the legislation as it's now shaping up. With the so-called 'public option' now ruled out of court, and with Medicare- or Medicaid-expansion as possible fallbacks also ruled out, I had grown rather less sympathetic to the cause even prior to yesterday's developments.

Then came the deal cut with Senator Nelson yesterday. That deal, I regret to have to say, leaves me in several respects not only more disappointed still, but downright disgusted: Here I allude not simply to the special favors grabbed for Nebraska -- that sort of thing is alas more or less par for the course in our legislative process -- but the decision no longer to include language in the bill removing the exemption that insurance companies enjoy from antitrust legislation.

So, as I say, I am now much less favorably disposed to this legislation than I was before. That in turn means that I'm very near on the fence about it now. For, as I have mentioned in previous posts, I'd found the proposed legislation disappointingly unambitious (particularly owing to single-payer's not being so much as considered) even before this past ugly week. And it is the fact that I find much less good in this bill now than I'd once hoped to find which, in conjunction with a proposed mode of legislation-assessment that I'll propose below, invites my questions to Rick.

First, then, my questions, then a bit more about the mode of legislation-assessment pursuant to which they acquire their relevance. What I am hoping to hear from Rick are responses to these two queries:

1) First, what is it about the current Senate bill, with the concessions made to Senator Nelson, that moves it (in your words) 'dramatically in the wrong direction when it comes to protecting unborn children in law and even when it comes to the (different) goal of reducing the number of abortions?' That is (I think), what is it about (again in your words) 'the Senate's proposal [that] will certainly increase "access" to abortion and so increase the number of abortions?' And do you mean 'increase the number of abortions' relative to the number of abortions that occur now?

2) Second, if the new version of the legislation -- which 'pro-choice' types already are (not surprisingly) howling about -- does indeed increase access to abortion or the likely number of abortions, does that of itself suffice to underwrite a justifiable hope that the legislation not pass? If so, why? How, more generally speaking, should we articulate the standard pursuant to which a proposed bill's impact upon the incidence of abortion ought affect our decisions to oppose or support the bill?

Here is the best I can manage at the moment in answering the questions for myself. Doubtless the muddle that is about to follow will illustrate why it is I am seeking Rick's guidance:

With respect to (1), my understanding is that the compromise that has been reached on abortion is that while those who receive federal aid in the purchase of health insurance may purchase what ever comprehensive health insurance policies are already on offer by private insurers, they will have to pay separately for what ever portion of any such policy covers abortion. One payment would go into that portion of any insurance pool sequestered for abortions, and the other would go into the remainder of the insurance pool. 'One policy, two cheques' might accordingly be an apt slogan with which to describe the agreed regime.

If this is correct, then there is an obvious sense in which the Nelson 'compromise' is mainly (if not solely) symbolic in character, at least if we ignore the 'transaction cost' introduced by the required additional transaction. For money is of course fungible. (As we are regularly -- and I think unhelpfully --told by Establishment Clause advocates who oppose school vouchers that can be redeemed at parochial schools.)

I'm not sure, however, that this alone -- the confinement, in the main, to symbolic effect -- should render the Nelson compromise unacceptable to Rick. For, to begin with, my impression is that Rick views the expressive function of the law as one of its more important roles, and the stigmatizing character of segregation in respect of funds and transactions surely expresses something important about the public status of abortion.

And then, secondly -- and now rather more than symbolically alone -- the separate transactions requirement would seem likely to induce accounting-segregation within insurance companies where there was none before, a development that advocates for the unborn might find salutary in any event. For that would facilitate better tracking of insurance company receipts for and expenditures on abortion, which information would presumably be of interest to pro-lifers in formulating future legislative efforts and strategies.

With respect to my question (2), I cannot think Rick has in mind, as the appropriate standard of legislation-assessment, that any legislation which might increase the 'accessibility' of abortion is, by dint of that fact irrespective of any others, to be opposed. For, after all, Eisenhower's proposed interstate highway system did that as well. So, for that matter, do public roads, public electrical facilities, and all other public utilities. Ditto, perhaps, the existence of police forces which render moving about our cities safer, and so on. And I feel quite safe in presuming that Rick would not oppose public measures as benign as those I've just adduced simply by dint of their facilitating individual citizens' actions taken not only on innocent or honorable intentions, but also on less innocent or less honorable ones.

How, then, should we articulate the principle on which to decide whether legislation that might cause there to be fewer or more abortions should be opposed or supported, if the causing of fewer or more abortions is not itself to be the sole basis upon which to decide? If a proposed bill would cause there to be 10% fewer abortions undertaken at the choice of individuals who are not us, but also cause a rise of 50% in the number of people unable to find work owing to no fault of their own, would it be one that we should support? If a proposed bill would wreak the contrary effects (10% more abortions chosen by people not us, 50% fewer people unable to find work through no fault of their own), would it be one we should oppose? Same results if we dropped the 10% figures to 1%, and raised the 50% figures to 90%? Why or why not?

I've a couple of brief thoughts by way of provisional reply to my own queries, which I hope Rick might consider in framing his reply, and other MoJ'ers in framing any of their own:

The first thing I note is that the 'what standard?' query I'm raising here is reminiscent of that raised by the matters of 'proximate' and 'intervening' causation in tort. We all know that my action's constituting a 'cause in fact' of another's harm cannot suffice to underwrite liability in tort, because there are just too many innocent causes in fact to render such a standard either just or workable. Hence we require some more refined criterion or set of criteria if we are to select the subset of legally relevant causes from the full set of physical causes that jointly yield a harm.

Perhaps the modes of thought in which we lawyers -- Catholic and otherwise -- engage by way of carrying out the task of determining 'proximate' causation, then, will be of help here. So, symmetrically, might our thoughts in respect of 'intervening' causation in tort. For of course none of us here at MoJ ever are speaking about actually procuring or refraining from procuring abortions ourselves, but rather are speaking about our and the law's effects upon others' procuring or refraining from procuring abortions. And those others' decisions, it seems to me, might very well count as 'intervening' causes in the relevant sense when we ask by what criteria we should be judged in deciding to frame or support or oppose legislation.

(I might add, while at it here, that the relevance of tort categories to our query here is likely no accident, given the Thomistic natural law antecedents of much of our commonlaw doctrinal tradition as explicated by such as the wonderful Professor Gordley, late of Boalt Hall and now of Tulane.)

The second thing I note in connection with the 'by what standard?' query is that, if I may take up a suggestion made by our friend Steve Shiffrin in an earlier post, something akin to the Doctrine of Double Effect (DDE) might also be of assistance. Here's how:

First note again that, as suggested above, the 'we' of concern in the present inquiry are presumably to put ourselves in the shoes, not of somebody contemplating whether to procure an abortion (who presumably introduces an 'intervening cause' of the relevant harm, as mentioned above), but of somebody contemplating whether to draft, propose, support or oppose a piece of prospective legislation. And what 'we,' in those shoes, will be prohibited under the DDE from intending will presumably be just the causing of abortions. Hence if we do not draft, propose, or support legislation with the intention of causing, or in order to cause, abortions, then we pass the first, 'intending' limb of the DDE standard.

If I have my DDE right, then passing that first limb will take us to a second: Now we are to ask whether the good that a piece of prospective legislation can reasonably be expected to yield is 'proportional' to any ancillary ('ancillary' because unintended) harm it can reasonably be expected to wreak. And if the ethical intuition that underwrites the 'intervening' and 'proximate' causation ideas in tort is not out of place here, then the fact that it will be individuals with wills of their own who procure or provide, or refrain from procuring or providing abortions, rather than 'us' as legislators or supporters of legislation which bears more effects than just abortion effects, will partly diminish the weight on the 'harm' side of the scales. (The legislation will not 'directly,' or 'proximately,' wreak the harm that is abortion; only the procurers and providers do that.)

What might this rough attempt at a standard of legislation-assessment yield by way of assessing the current rendition of the Senate bill? I'll attempt an analysis along those lines in a second installment tomorrow, at least if the standard as thus proposed does not turn out, under criticism from Rick or other MoJ'ers, to be radically misguided or wildly implausible. But first I want to see what Rick and the rest of you think of this DDE-as-inflected-by-tort-doctrine standard. Is it sound? If so, might it nonetheless be improved? If not, is there something better that might be proposed?

If my proposal is more or less sound, then I think what I'll have to do in my second installment is first say a bit about the (alas, rapidly dwindling) set of goods that the current health insurance reform legislation looks apt to yield, the importance of those goods, and the apparent likelihood of the legislation's actually yielding them if passed. I'll then have to say a bit about such harms as the legislation looks apt to wreak, the importance of those harms, and the apparent likelihood of the legislation's actually wreaking them.

In that latter connection I could especially use the help of Rick. For as mentioned above, Rick seems pretty sure that the bill as it now stands is going to cause dramatically more abortions to be performed, and I will do well to learn why he thinks that before attempting to say with any confidence how heavy I think the harms side of the scale is apt to be.

Thanks again to Rick for his post, and to all for listening, and more tomorrow,

Bob

Robby in the Sunday Times Mag

By Steve Shiffrin

Hello All,

Just a quick note to let you all know that there's a profile of our friend Robby in today's Times Magazine. I've not had a chance to read it yet, as I'm off to mass (the one that our friends Greg and Steve attend as well) momentarily, but am looking forward to taking it in this afternoon!

All best and more soon,

Bob

For those who may be interested ...

By Michael Perry

[HT: R. George Wright.]

For what Thomas Aquinas has (had?) to say about petitionary prayer, see Fergus Kerr, OP, Thomas Aquinas: A Very Short Introduction 82-83 (Oxford, 2009).

(Here's what Jim Morrison, of The Doors, had to say: "You cannot petition the Lord with prayer!")

Saturday, December 19, 2009

St. Gregory's University Commencement Speech

By Michael Scaperlanda

I had the honor and pleasure of giving the commencement speech at St. Gregory's University this morning.

Here are remarks:

It is an honor and pleasure to be with you this morning on this important occasion in the life of each of you graduates, your parents and families, and St. Gregory’s University. For those of you who are concerned that I will talk for too long. Don’t worry! As a professor, I only talk in 50 minute increments. I ask [you] to be my time keeper, stopping me at 51 minutes. I’m joking. I’ll try to be brief so that you all can get on with your much deserved celebration.

The pleasure of speaking to you today is greater because, here, in this place, we can make a visual connection between education and the Benedictine order. In other words, we can literally see the debt the world-wide project of education owes the Benedictines. Look at the gowns you are wearing. Most of you have worn graduation gowns before – at your high school (and for you master’s students, at your college graduation). Now look at the gowns -the habits- that the monks are wearing. The two are intimately connected. Nearly 1500 years ago, in those dark ages after the fall of the Western Roman Empire, small lights of learning flickered throughout Europe as the Benedictines, founded by St. Benedict, kept the embers of civilization alive by collecting and preserving manuscripts and opening schools. No, this is not hyperbole, it is history, and you are a vital part of that continuing story. Cambridge University as well as the universities of Paris, Tours, and Lyon grew out of these monastic schools. Although Benedictines did not found Oxford, they played important roles in its development by the 13^th Century. The gowns you are wearing today and that your peers at OU, OSU, Tulsa, and OBU down the street wear on such occasions stand as a silent but often forgotten testament to the contributions made by the Benedictine Order to Western Civilization generally and education in particular.

Joseph Ratzinger, in choosing the name Benedict upon his election as Pope, recognized, I think, these Benedictine contributions and their importance at this pivotal moment in history when, in Ratzinger’s words, we are threatened with” a dictatorship of relativism,” where no one and no thing is sacred. In a homily given shortly before he was named pope, Ratzinger said:

Today, having a clear faith based on the Creed of the Church is often labeled as fundamentalism. Whereas relativism, that is, letting oneself be "tossed here and there, carried about by every wind of doctrine", seems the only attitude that can cope with modern times. We are building a dictatorship of relativism that does not recognize anything as definitive and whose ultimate goal consists solely of one's own ego.

In this short reflection, I don’t have time to develop and defend this proposition, but each of us, I would suggest, experience this relativistic influence in our lives, even those of us who attempt to seek God with our whole being. We can’t help but be influenced by these forces because they are simply part of the “cultural air that we breathe.” Outback Steakhouse’s “No rules” and Nike’s “Just do it” resonate precisely because the prevailing winds of our society uproot us from faith, family, community, and tradition, whispering to us that the goal of life is to be free of such attachments – such bonds – so that we might become “autonomous,” creating our own meaning, with the freedom to choose our own path in life.

If the Pope’s thesis is correct, our culture faces many problems and is truly in need of a new Benedict. But, more immediately a problem arises in each of our lives for which these prevailing winds provide no answer: How should I choose? By what criterion do I decide how I should live my life? Far from its promised freedom, this rootless and radical autonomy creates paralysis. Without an answer – without criteria for choosing, many, especially in your generation, are rudderless in a sea of choices. How am I to live my life? How am I to choose? And, can I be happy – truly and deep down happy however my life turns out? These questions haunt many people today, carrying, I suspect, particular weight for those wearing graduation gowns.

I spent the month of October this year on pilgrimage in Spain. During this time, I enjoyed conversations with perhaps 80 or100 young adults, mostly in their 20’s from 30 different countries, as we walked 500 miles across northern Spain on an ancient pilgrimage route called the Camino de Santiago (the Way of St. James). Some of these encounters were very brief – an hour or two as we walked for a short while together through vineyards on Roman Roads. Others were extended conversations spread over days or weeks, beginning perhaps while cooking a meal together in the evening and continued during a chance encounter while walking through a medieval town. If I can generalize, most of these young people had several common traits. They had recently left jobs, careers, or relationships. They were unsure of the direction to take in their lives. And, although they would call themselves spiritual rather than religious, they intuited that walking this Christian pilgrim route would bring them some clarity.

Permit me to recount one such encounter. While walking through a small farming town with its magnificent Gothic church, I ran into David (not his real name), a 26 year old Frenchmen who I had met two or three days prior. He greeted me warmly -“Michael”- and asked if I had eaten lunch. When I told him I had not, he shared his lunch – including a cookie – with me. During our conversation, he told me that he like so many others in his generation – your generation - was hesitant to make commitments – to the church, to politics, to jobs, and in relationships. He was interested in leading a good life for himself in service to the community – as reflected in offering me lunch, but this modern or post-modern paralysis of which we have spoken had overtaken him.

David sought answers by committing to walk in the footsteps of Francis of Assisi and the millions of other pilgrims who have walked the Camino over the past 1000 years. Without being fully aware of it, he had put himself within a tradition in which the answers to life’s most pressing and ultimate questions can be found. Although we are Facebook friends, I haven’t yet asked David whether he found the answers he was seeking. And, you parents in the audience can breathe easy because I am not suggesting that your sons or daughters need to spend five weeks walking across Spain in order to find themselves. What I am suggesting is that the Catholic Christian tradition within which you graduates have been studying these past few years offers answers to the questions that life presses upon young adults as they prepare to find their place in the world.

My friend J-Robert, found himself face to face with this tradition – and these questions - more than 20 years ago. At the time he was a highly successful business person, owning a large food processing company. He had faithfully attended church all his life, but I think it is fair to say that in many ways he and Christ were acquaintances or maybe casual friends rather than intimate friends. At some point this changed, and he fell deeply and madly in love with Christ. And, this created a problem for J-Robert. With Christ at the center of his life, shouldn’t he take seriously Christ’s words to the rich young man: “sell all you have, give to the poor, and come follow me.” J-Robert decided to do what any good Catholic would do, he’d ask Mother Teresa. So, he boarded a plane and flew to India, fully committed to selling all he had and giving the proceeds to the poor if that is what Mother Teresa directed him to do.

J-Robert said: "I went to see her with one question I had been carrying since birth. I am a fragile Roman Catholic born into the privilege of faith and wealth. I asked her, 'Mother, should I give everything I have?'" “Mother Teresa pondered a reply for 20 seconds and said, ‘You cannot give it: It has never been yours. It has been loaned to you. You can try to manage what has been loaned to you for God, but if you want to go further, you can try to manage what has been loaned to you, with God.'” "I was getting my answer," J-Robert said. "I knew then I had to follow God's hierarchy of love. My wife was to come first and then our four children. I realized I had my wife at number 200 in priority. Then were to come the families of the organization I was leading, and to branch out from there." His multi-million dollar company’s motto now reads “Pray so as to Manage in God.”

J-Robert is one of those rare people that you meet. Looking into his eyes, I could tell within five minutes of meeting him that he was filled with great happiness and that peace that passes understanding. That peace and happiness we all desire! I found out later that he is also, unsurprisingly, a man of deep prayer. Early on he had recognized his talents and made a commitment to use those talents for the good. Later, after meeting Mother Teresa, he decided to partner with Love himself in carrying out this vocation.

What I am suggesting is that for each of us, in the circumstances of our lives, God has offered us a unique and important way to be truly happy. It isn’t the same for each of us, but the opportunity is there. In short, each of you has the capacity for the happiness and peace experienced by my friend, J-Robert. Each of you has the ability to contribute to the good of your communities in your own unique ways. You can make a difference. I pray that each and every one of you has the wisdom to discern your talents and desires, the courage to commit them to use in service to the human community, and the faith and hope to pursue your unique vocation with great love toward everyone you meet on this pilgrim walk through life.

Congratulations!

The Senate's healthcare-funding legislation

By Rick Garnett

I see no way to avoid the conclusion that the latest version -- and the one that appears likely to pass -- of healthcare-funding legislation in the Senate moves the ball dramatically in the wrong direction when it comes to protecting unborn children in law and even when it comes to the (different) goal of reducing the number of abortions. (Indeed, I am surprised that Sen. Nelson agreed to it, given what had appeared to be his Stupak-esque views on the importance of not allowing healthcare-funding changes to become a vehicle for subsidizing abortions.) We should put aside, I think, nice questions about burdens on taxpayers' consciences, or culpable complicity with evil; as I see it, the Senate's proposal will certainly increase "access" to abortion and so increase the number of abortions. I hope it does not succeed.