David Brooks offers a nice reflection on the "line of narcissism" we've crossed as a culture since World War II, exemplified in recent days by Rep. Joe Wilson, Kanye West, and Michael Jordan. Brooks overstates things a bit, asserting that "Humility, the sense that nobody is that different from anybody else, was a large part of the culture" back then. I'm pretty sure that's a stretch. But his broader point is insightful. Our sense of identity is wrapped up with a perceived need for self-creation, self-expression and distinctiveness. (As Kanye explained after he crashed the stage, "I'm just real.") I don't think the law has driven this cultural shift, but it certainly has not stood in the way, and at times has added its eloquent imprimatur.
Tuesday, September 15, 2009
What would Catholic legal theory say to Kanye?
Monday, September 14, 2009
Some reflections on sovereignty by one who studies the Church’s social doctrine and public international law
I would like to thank Patrick and Greg for their discussions about sovereignty. As Patrick mentioned, there was not the opportunity to hear from the realms of public international law or theology at the symposium that was described, so perhaps I could offer a few thoughts on these topics.
Within the realm of international law, at least as it is today, states have the primary duty of enforcing the international principles and legal norms. Ironically, states have often been the perpetrators responsible for violating these norms. Yet there are mechanisms, albeit imperfect, for making corrections that would negate or minimize violations. A principal means of achieving this is through instruments, i.e., treaties and other agreements, which give rights and place responsibilities on the states parties. Those states which have ratified these instruments have acknowledged their duties to obey the norms which the instruments contain. Yet, as sovereigns, these states have also pursued actions conflicting with norms, and they have justified their actions on the grounds of exercising their state sovereignty. An illustration of this last point would be the promulgation of the Nuremberg Laws by the Third Reich. As a result of pursuits such as these, critics of state sovereignty have become more vocal in their condemnation by arguing that traditional notions of sovereignty cannot insulate states from their obligations to abide by the fundamental norms. This sentiment has been asserted by Michael Ignatieff in his summation that the NATO campaign against Yugoslavia “depends for its legitimacy on what fifty years of human rights has done to our moral instincts, weakening the presumption in favor of state sovereignty, strengthening the presumption in favor of intervention when massacre and deportation become state policy.” The challenge to traditional notions of state sovereignty has been argued by others elsewhere.
While the exercise of state sovereignty has led to the unwarranted violation of well-understood legal norms, it would be imprudent to conclude that sovereignty must be curtailed in order to ensure the respect for the rule of law. Arguably, sovereignty as a legal concept in domestic and international law has more than one dimension or practice. If my contention has merit, then it would be wise to investigate whether the exercise of sovereignty can be or is compatible the protection of these fundamental norms of international law. Here, I contend that sovereignty, which is exercised by people in their exercise of self-determination, is also a matter which needs to be protected as an important human right. It is this kind of sovereignty—popular sovereignty—which is essential in the protection of many fundamental international norms, especially but not limited to those addressing basic human rights. Should popular sovereignty be subjected to criticism and attack that lead to its demise, the integrity of other norms, especially those dealing with basic rights of the human person, can also be open to attack. Popular sovereignty and many international norms and human rights are inextricably linked. When popular sovereignty is criticized, what will become of the other norms?
To be properly understood within the framework of international law, sovereignty is a compound doctrine that is best understood by examining the relationship between the sovereignty of a state and the sovereignty of peoples, i.e., the sovereignty of nations. While a sovereignty-exercising state can be a totalitarian regime, it can also be a democratic one in which the sovereignty of the people confers and controls the sovereignty of the state. And these people exercise their sovereignty in the implementation of their basic human rights.
Although it is far from an ideal institution, the United Nations has a role in protecting this fundamental right of self-determination and popular sovereignty. As the Charter of the United Nations declares, one of the primary purposes of the organization is “[t]o develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples…” An illustration of the United Nations promoting this purpose occurred on December 14, 1960 when the General Assembly adopted the Declaration on the Granting of Independence to Colonial Countries and Peoples thereby recognizing the sovereignty of a subjugated people against a colonial power. In this declaration, the approving U.N. members stated that “all peoples have an inalienable right to complete freedom, the exercise of their sovereignty, and the integrity of their national territory.”
Even though exercises of sovereignty can be the source of violation of fundamental international norms, they can also be equivalent to expressions of fundamental rights of nations and of individuals. Therefore, in some instances sovereignty and its exercise can be crucial to the protection of rights because it can be an expression of how individuals and the communities which they form put into practice those elements of self-determination which are constitutive of human rights. Here the concepts of subsidiarity and solidarity, essential elements of the Church’s social doctrine, come into play
When criticism is made of sovereignty in this day and age, it does not seem to take account of those sovereignties which rest in the nation, that is, the people themselves. If, indeed, some people are interested in the protection of human rights, they must also take account of the fact that the right of political, cultural, and social self-determination is inextricably related to people exercising sovereignty. Efforts made to curtail this kind of sovereignty would deleteriously affect the exercise and protection of a wide variety of other international norms, especially those addressing basic human rights. A sovereign nation is a community of people who exercise shared values concerning human dignities which shape and direct the particulars of their communitarian self-determination.
I would suggest that the Church contends that the concept of “self-determination” benefits from a preferred status in the world of international law. This is a point alluded to when Pope John Paul II spoke at the UN for a second time in 1995. It is a notion that brings together the interests of the individual and relates them to the interests of the group. The interests of both the individual and the group concentrate on the ability to exercise their selections about how they wish to live their lives and to be free from the interference and imposition of others. This theme appears in the purposes of the United Nations as identified in the Charter when the founders of the U.N. agreed that the organization was to encourage friendly relations amongst nations “based on respect for the principle of equal rights and self-determination of peoples.”
More on "Intractable Disputes About the Natural Law"
In response to my post below, I am informed that:
The CUA Nat'l Law Symposium will be published in the upcoming issue of the Journal of Law, Philosophy, and Culture: http://law.cua.edu/clpc/journal/Vol3.pdf
More on the Sovereignty Symposium at Villanova
Over the weekend, Patrick Brennan provided a synopsis of the very interesting and diverse presentations offered at the “Sovereignty” symposium on Friday hosted at Villanova Law School. Before adding my “two or three cents worth,” as Patrick invited me to do, I want to publicly thank Patrick; his colleague, Ann Juliano; Dean Doris Brogan; and the Villanova Law Review editors for their hospitality, as well as Norman and Maryellen Shachoy, whose generosity made the program possible. I also want to single out Nicole Garafano, the events coordinator, who made everything come together so well in a brand new building and on a day in which the skies opened and threatened to put a damper on everything. If anyone has a chance to participate in, or attend, a symposium at Villanova, they truly have figured out how to make everyone feel welcome and every need anticipated.
Regarding Patrick’s response to my own presentation at the symposium, Patrick once wrote that he was speaking “not so much against sovereign immunity, as against sovereignty.” At Villanova on Friday, I was speaking “not so much in favor of sovereignty, as in favor of sovereign immunity.” My basic proposition can be summed up in these words from my presentation: “When the decisions of the political community are challenged by individuals who dissent on political grounds or regard themselves as personally aggrieved, an entity must be recognized that is capable of speaking for the whole and resisting the reach of unelected judges tempted to question the wisdom of those decisions made through democratic governance. By necessity, that entity is the government and the nature of that resistance is sovereign immunity.”
During the panel discussion at the Villanova symposium, I suggested that the question of federal sovereign immunity comes down to “who do you trust: the courts or the Congress.” The late administrative law scholar Kenneth Culp Davis inveighed against sovereign immunity, arguing that the courts would prudently refrain from invading the province of policy judgments and democratic governance through such doctrines as standing, the political question doctrine, etc. By contrast, Dean Harold Krent of Chicago-Kent suggests that in determining how to balance individual rights and remedies against preservation of democratic rule, “we trust Congress, unlike any other entity, to set the rules of the game.” I line up with Krent rather than Davis on this point. Indeed, as some evidence that the courts cannot be trusted to honor the legal line and not cross into the political, I cannot help but note that those who argue most strenuously against sovereign immunity also tend to be those arguing for broader standing rules, a weaker political question doctrine, and softening qualified immunity defenses. Thus, such rules and traditions of judicial restraint, which Davis assured us would be sufficient to ward judges away from political controversies, prove to be quite permeable in the hands of those who question sovereign immunity.
Importantly, as I’ve written recently (here) and echo in the second part of what will be my Villanova symposium paper, I espouse sovereign immunity only as a starting point. Sovereign immunity should be understood as a clear point of departure for Congress to develop a refined policy and practice of government liability in court to private complainants. And when the federal government has been made amenable to litigation by the democratically-elected Congress, the courts should not reconstruct a broader immunity through a jaundiced and hostile interpretation of the statute. If a statutory waiver of federal sovereign immunity is construed too strictly and narrowly, so that every statutory term is slanted against the claimant, the legislative promise of meaningful judicial relief may be frustrated.
Finally, I strongly second Patrick’s observation that Catholic law schools, through symposia, can contribute something meaningful and meaningfully different to the legal scholarly discourse. Friday's Villanova symposium on “Sovereignty” well exemplifies this. At this symposium, elements of Catholic intellectual thought and the possibility of a natural law jurisprudence became part of the warp and woof of the analysis, almost seamlessly becoming part of the fabric of discussion that attracted the attention of the participants and the questioners.
Greg Sisk
Immanuel Kant Never Visited Yerkes!
September 14, 2009
Virtual empathy clue
to behavior
By Emily Rios
In the only study of its kind, researchers at the Yerkes National Primate
Research Center have documented the first example of a nonhuman primate
empathizing with a computer animation. The study, which is available in the
current edition of The Proceedings of the Royal Society B, demonstrated
chimpanzees respond empathetically to animated chimpanzees, showing a level of
identification with the animations. Understanding why and how chimpanzees
connect with animations may help researchers understand why and how humans
empathize with others.
“We know humans often empathize with fictional
displays of behavior, including those in cartoons and video games, even though
the displays are obviously artificial,” says lead researcher Matthew Campbell.
“Humans experience emotional engagement with characters, empathizing with
happiness, sadness or other emotions displayed by the characters. Previous
studies have suggested this type of emotional engagement may be to blame when
children mimic violent video games and cartoons, so we thought it important to
learn more.”
To understand why humans relate to artificial characters in
this way, Campbell set out to determine if chimpanzees would respond
empathetically to virtual characters. The researchers used contagious yawning to
test empathetic response. “Yawns are contagious in the same way other emotional
responses, like smiles, frowns and fear, are contagious,” says
Campbell.
He and his team showed chimpanzees 3D animations of chimpanzees
yawning and showing control mouth movements. The chimpanzees yawned
significantly more in response to the yawning animations than they did to the
animations showing control mouth movements.
“Yawning in response to the
animated yawns showed an empathetic reaction to the animations,” says Campbell.
“Because they showed only involuntary responses to the animations, we
believe they empathized with the animations, while knowing they were artificial.
This is important for us to know because we can present animations in future
experiments knowing the chimpanzees will identify with the animations as if they
are other chimpanzees. This opens up the possibility of using animations in many
other types of studies,” Campbell adds.
Researchers next plan to show
chimpanzees improved and degraded animations of chimpanzee yawns to see how they
respond to more and less lifelike animations. This may help researchers
understand whether different aspects of animations make them more or less likely
to be imitated.
“Such knowledge could tell us how to design animations
for children to promote imitation when used therapeutically, as with children
with autism spectrum disorder, or to limit imitation when used for
entertainment, as with video games,” says Campbell.
Kain on Kant on Human Moral Status
In light of our recent conversation about Christianity's debt to Kant, we might find helpful Purdue philosophy prof Patrick Kain's recent paper, Kant's Defense of Human Moral Status. Here's a summary:
The determination of individual moral status is a central factor in the ethical evaluation of controversial practices such as elective abortion, human embryo-destructive research, and the care of the severely disabled and those in persistent vegetative states. A review of recent work on Kant reveals the need for a careful examination of the content of Kant’s biological and psychological theories and their relation to his views about moral status. Such an examination, in conjunction with Kant’s practical-metaphysical analysis of the origins of freedom, reveals Kant’s principled basis for his contention that all human beings possess moral status.
Sunday, September 13, 2009
Lifted from dotCommonweal ...
... because of special relevance to us here at MOJ:
Intractable Disputes About the Natural Law–Alasdair MacIntyre and His Critics
Many of the subjects discussed on this blog touch upon moral issues–and disagreements about moral issues. I thought that some people might be interested in a new book published by Notre Dame Press on the topic, edited by longtime Commonweal contributor, Larry Cunningham. I have an essay in there too. Here’s the blurb, which explains why we all did this:
Both as cardinal and as Pope Benedict XVI, one of Josef Ratzinger’s consistent concerns has been the foundational moral imperatives of the natural law. In 2004, then Cardinal Ratzinger requested that the University of Notre Dame study the complex issues embedded in discussions about ‘natural rights’ and ‘natural law’ in the context of Catholic thinking. To that end, Alasdair MacIntyre provided a substantive essay on the foundational problem of moral disagreements concerning natural law, and eight scholars were invited to respond to MacIntyre’s essay, either by addressing his work directly or by amplifying his argument along other yet similar paths. The contributors to this volume are theologians, philosophers, civil and canon lawyers, and political scientists, who reflect on these issues from different disciplinary perspectives. Once the contributors’ essays were completed, MacIntyre responded with a closing essay.
I also want to point out that the Catholic University of America and Ave Maria University also were asked to address these questions–I know that they ran conferences on the topic, but I am not sure whether they have been published yet.
Welcome to Robert George
"Elementary Experience" and Natural Law
At the urging of my pals Mary Ann Glendon and Joseph Weiler, I accepted an invitation to speak (in a tag-team partnership with Mary Ann) at the 30th annual "Meeting for Friendship of Peoples" hosted by Communion & Liberation in Rimini, Italy. The meeting, which I had often heard about but never before attended, is quite remarkable. Over the course of a week, several hundred thousand people crowd into an Italian beach town to hear academic and religious lectures, attend concerts and other performances, and socialize. Mary Ann and I were assigned the topic "Elementary Experience and Natural Law." I'm revising my reflections on the subject to present as a lecture at the University of St. Thomas Law School in a few weeks, but in case MoJ readers are interested, here are the opening paragraphs of my presentation.
One’s knowledge of natural law, like all knowledge, begins with experience (one might even say “elementary experience”) but it does not end or even tarry there. Knowing is an activity—an intellectual activity, to be sure, but an activity nonetheless. We all have the experience of knowing. But to know is not merely to experience. Knowing is a complex and dynamic activity. The role of experience in the activity of knowing is to supply data on which the inquiring intellect works in the cause of achieving understanding. Insights are insights into data. They are, as Bernard Lonergan brilliantly demonstrated by inviting readers to observe and reflect on their own ordinary intellectual operations, the fruit of a dynamic and integrated process of experiencing, understanding, and judging.
So what are the data supplied by experience that are at the foundation of practical judgments, that is to say, insights that constitute knowledge of natural law? They are the objects of intelligibly choice worthy possibilities—possibilities that, inasmuch as they provide reasons for acting of a certain sort (that is, more-than-merely-instrumental reasons), we grasp as opportunities.
In our experience of true friendship, for example, we grasp by what is ordinarily an effortless exercise of what Aristotle called “practical reason” the intelligible point of having and being a friend. We understand that friendship is desirable not merely for instrumental reasons—indeed a purely instrumental friendship would be no friendship at all—but above all for its own sake. Because we grasp the intelligible point of having and being a friend, and we understand that the fundamental point of friendship is friendship itself, and certainly not goals extrinsic to friendship to which the activity of friendship is merely a means, we reasonably judge that friendship is intrinsically valuable. We know that friendship is a constitutive and irreducible aspect of human well-being and fulfillment, and that precisely as such friendship provides a reason for action of the sort that requires for its intelligibility as a reason no further or deeper reason or sub-rational motivating factor to which it is a means.
The same is true if we shift our focus to our experience of the activity of knowing itself. In our experience of wonder and curiosity, of raising questions and devising strategies for obtaining correct answers, of executing those strategies by carrying out lines of inquiry, of achieving insights, we grasp (by what is again for most people in most circumstances an effortless exercise of practical reason) the intelligible point of searching for truth and finding it. We understand that knowledge, though it may have tremendous instrumental value, is intrinsically valuable as well. To be attentive, informed, thoughtful, clear headed, careful, critical, and judicious in one’s thinking and judging, is to be inherently enriched in a key dimension of human life. We reasonably judge the activity of knowing, then, to be an intrinsic (or “basic”) human good—a constitutive and irreducible aspect of our flourishing as human beings. Like friendship and a number of other types of activity, knowledge provides a reason for choice and action that requires for its intelligibility as a reason no further or deeper reason or sub-rational source of motivation to which it is a means.
Knowledge of natural law, then, is not innate. It does not swing free of experience or of the data provided by experience. Even when it is easily achieved, practical knowledge (i.e., knowledge of natural law) is an achievement. It is an event—a temporal event. It is something that happens—or perhaps it would be better to say it something that is done—at a point in time by virtue of human acting. It is the fruit of insights which, like all insights, are insights into data, data which are supplied by experience. The insight—the knowledge—that friendship or knowledge itself is intrinsically humanly fulfilling is ultimately rooted in our elementary experiences of the activities of friendship and knowing, Apart from those experiences, there would be no data on which practical reason could work to yield understanding of the intelligible point (and, thus, of the value) of friendship or knowledge and the judgment that these activities are intrinsic fulfillments of the human person and, as such, objects of the primary principles of practical reason and basic precepts of natural law.
Of course, not all practical knowledge is moral knowledge, though all moral knowledge is practical knowledge—it is (or centrally includes) knowledge of principles for the direction and guidance of action. Yet knowledge of the most fundamental practical principles directing action towards the basic human goods and away from their privations, though not strictly speaking knowledge of moral norms, is foundational to the generation and identification of such norms. That is because moral norms are principles that guide our actions in line with the primary practical principles integrally conceived. Norms of morality are entailments of the integral directiveness or prescriptivity of the various aspects of human well-being and fulfillment that together constitute the ideal of integral human flourishing. So, if the first principle of practical reason is, as Aquinas say, “the good (bonum) is to be done and pursued, and the bad (malum) is to be avoided,” then the first principle of morality is that “one ought always to choose and otherwise will in a way that is compatible with a will towards integral human fulfillment.” And just as the first principle of practical reason is specified, as Aquinas makes clear, by identifying the various irreducible aspects of human well-being and fulfillment (namely, friendship, knowledge, aesthetic appreciation, skillful performance, religion, and so forth), so too the first principle of morality is specified by identifying the norms of conduct that are entailed by an open-hearted love of the human good (that is, the good of human persons) taken as a whole.
Kristof on the Debate Over Health Care
"After Al-Qaeda killed nearly 3,000 Americans, eight years ago on Friday, we went to war and spent hundreds of billions of dollars ensuring that this would not happen again. Yet every two months, that many people die becaue of our failure to provide universal insurance."
Read Kristof's op-ed here. Among the anamolies of our system Kristof points out is that those without insurance who are sick would do better if they were in prison, because courts have ruled that prisoners are entitled to health care. He gives an example of one 20-year old who refused parole because staying in prison was the only way she could get treatment for her cervical cancer.
We can debate methods, but Kristof is right that the central issue is a moral one. "The first question is simply this: Do we wish to be the only rich nation in the world that lets a 32-year-old woman die because she can't get health insurance. Is that really us?"
Doing nothing is not an option.
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