Friday, June 18, 2004
Some of you may be interested in this article:
Susan Pace Hamill, "An Argument for Tax Reform Based on Judeo-Christian Ethics," 54 Alabama Law Review 1 (2002).
The article focuses on the shameful tax situation in Alabama.
Click below to see the abstract and, if you want, download the paper:
Thursday, June 17, 2004
Appropos of Rob's posting today about religiously affiliated law schools, I thought I should point out that, contrary to what is suggested in the posting, Emory is not a religiously affiliated university, any more than, say, Northwestern is. (Hope no one's disappointed.) Of course, Emory, Northwestern, Princeton, etc., etc., etc. (as the King of Siam used to say), were all once religiously affiliated universities. But no more. Even Wake Forest University is no longer a Baptist-affiliated institution. Alas, I have never been on the faculty of a religiously-affiliated law school--even one, like Georgetown, whose religious affiliation is more nominal than substantial. None of them will have me.
Michael
Wednesday, June 16, 2004
I fear I am beginning to sound like a broken record: Brugger, in his book, answers Michael S.'s question.
Here's my answer.
Assuming, for the sake of discussion, that it is morally forbidden in principle to kill a human being, innocent or not, intentionally, the doctrine of double effect cannot be used to justify capital punishment. This is because, whereas to commit a lethal act of self-defense, or a lethal act of combat, is not necessarily to kill intentionally, to carry out a sentence of death under a system of capital punishment *is* necessarily to kill intentionally. This is true even if one also has other intentions in carrying out the sentence of death.
Consider this: If an act (my act) of self-defense, which I foresee will in all probability be lethal, does not in the end kill the aggressor (who may not be morally culpable; he may be psychotic) but merely disables him, then I can rejoice that he did not die, because my intention was to disable him, not to kill him. Similarly, if an act of combat , which I foresee will in all probability be lethal, does not in the end kill the enemy combatant but merely disables him, then I can rejoice, because my intention was to disable him, not to kill him.
HOWEVER: If an act of carrying out a death sentence (which, of course, I foresee will in all probability be lethal) does not in the end kill the criminal, then I do not rejoice that he did not die; rather, I try again (unless the law forbids it), because my intention, or one of my intentions, was to kill him, and not merely to disable him.
Michael
Tuesday, June 15, 2004
Michael S. and I must have been posting messages at about the same moment. Actually, I was posting a revised version of my capital punishment message of last week. Please take a look at the revised message, which I drafted after an e-mail conversation with Notre Dame philosophy prof John O'Callaghan, to whom I am grateful.
Now, in response to Michael's questions.
1. As Brugger, in his book, carefully explains, one can sometimes rely on the doctrine of double effect to justify lethal acts of self-defense, lethal acts of combat in war, and the like. This is because one can (and should) engage in such acts without the intent to kill. However, to execute someone under a system of capital punishment is to kill him not merely with foresight, but intentionally. So, one can affirm the principle that it is morally forbidden in principle to kill any human being, innocent or not, without committing oneself to pacifism. As I said, Brugger discusses all this very carefully.
2. To conclude that an act is morally forbidden "in principle" is to conclude that it is morally forbidden for anyone ever to engage in the act, no matter what the circumstances. It would be not merely confusing but deeply confused for the Church or anyone else to teach that an act is morally forbidden in principle but that there may be circumstances--extreme circumstances--in which it would not be morally forbidden for someone to engage in the act.
I want to emphasize that I have not said, in my postings, that I agree--or that I disagree--with the position that it is morally forbidden in principle to kill any human being, innocent or not. I am still struggling to arrive at what I judge to be the most adequate position on capital punishment--the most adequate position, that is, even assuming that a system of capital punishment could be devised that would function perfectly: a system in which no innocent person would be executed, the rich would be just as likely to be executed as the poor, those whose victims are black would be just as likely to be executed as those whose victims are white, and so on.
Saturday, June 12, 2004
[Revised on June 15, 2004.]
This now seems to be the teaching of John Paul II on capital punishment--and it now seems to be the emergent position of the magisterium on capital punishment:
(1) It is morally forbidden for anyone ever to kill any human being intentionally--any human being, not just any "innocent" human being. Such a killing is "in principle" morally forbidden.
(2) To execute a human being under a system of capital punishment is to kill him (or her) intentionally.
(3) Therefore, it is morally forbidden--"in principle" morally forbidden--to execute a human being under a system of capital punishment.
Now, some of you will dispute this interpretation of John Paul II's teaching. After all, you'll say, the 1997 Catechism of the Catholic Church doesn't speak in such uncompromising terms. So, before you go any further, please read the book that offers and defends this interpretation: E. Christian Brugger, Capital Punishment and Roman Catholic Moral Tradition (Notre Dame 2003). Brugger's book was written (while Brugger was at Oxford, I think) under the mentorship of John Finnis and Oliver O'Donovan. I find Brugger's interpretation of John Paul II's teaching persuasive. And Brugger is on solid ground, I think, in arguing that this is the emergent teaching of the magisterium. In a letter to First Things in August/September 2001, commenting on a lecture by Avery Dulles, Brugger wrote:
"The new framework [of the 1997 Catechism of the Catholic Church] leads me to conclude that the Catechism is laying a theoretical foundation for a change (not 'development' precisely understood) in the Church's teaching on the death penalty that would at minimum state that the exigencies of retribution (i.e., of the need to redress the disorder introduced by the criminal's crime) [do not justify] the inflicting of capital punishment. That is to say, death as a punishment is never legitimate."
Of course, to say that such-and-such is the teaching of the magisterium is not to say that the teaching is "irreformable". But for a host of reasons it seems to me that if/when the magisterium affirms the change for which, according to Brugger, it "is laying a theoretical foundation," the magisterium is much less likely to change course on the teaching in, say, the next millenium than (e.g.) on its teaching about contraception.
I hope those of you who are interested in this issue (who among us isn't?!) will read Brugger's book--at least, the nonhistorical chapters--and share your thoughts with the rest of us.
Michael
Tuesday, June 8, 2004
I found Greg's comments today wonderfully clarifying, thoughtful, and--not least--helpful! Just wanted to record my gratitude to Greg for the comments.
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