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.

Sunday, March 27, 2005

Further on Punishment and "Desert"

By Michael Perry

Thanks to Rick Garnett for calling our attention to some recent comments on the issue of punishment and desert by Notre Dame philosopher John O'Callaghan (here)--comments prompted by some questions and thoughts that Rob Vischer, Rick, and I had posted to this blog.

O'Callaghan makes the sensible point that even if it is the case that A deserves a punishment, in the sense that under ordinary circumstances we would do no wrong to impose that punishment on A, it might also be the case that under the actual circumstances we ought not to impose that punishment on A.   For example, it might be the case that to impose the punishment in question on A would work a devastating harm on the members of his family.  In that case, we could say that although A deserves the punishment, we ought not to impose it on him, not because A doesn't deserve it, but because we ought not to treat the members of his family that way.  Again, this is a sensible point.  But it is not a point that engages what I said in an earlier posting.  Or perhaps I should say:  It is not a point that engages what I tried to say in an earlier posting.

So let me try again:  If it is the case that we should not impose--that morally we ought not to impose--a particular sort of punishment on A or on any other human being, because to do so would for us to violate the human being--any human being--on whom we imposed the punishment, then it cannot be the case that A or any other human being  deserves that punishment.  (What sort of punishment--besides torture--fits that profile?  The death penalty?)  That was my point.  And John O'Callaghan, as I read his comments, does not contend to the contrary.

But as I said before, I may be missing something.  I remain eager to be tutored.

Michael P.

Thursday, March 24, 2005

New Evidence that Death Penalty Deters? Not So Fast!

By Michael Perry

My colleague here at Emory Law, Joanna Shepherd, is one of the economist-authors of the work on which Sunstein & Vermeule rely.  But in a more recent paper, Professor Shepherd reaches a more nuanced conclusion:  that in the United States, “executions deter murders in six states, . . . have no effect on murders in eight states, and . . . increase murders in thirteen states.”  She writes:

[E]mpirical analyses indicate that there is a threshold effect that explains the differing impacts of capital punishment. On average, the states with deterrence execute many more people than do the states where executions increase crime or have no effect. The results of this paper help to explain the contrasting conclusions for earlier papers: the deterrence or no-deterrence conclusion depends on the jurisdiction examined. My results also have important policy implications: to achieve deterrence, states must execute several people. If states are unwilling to establish such a large execution program, it may be better to perform no executions.

Joanna M. Shepherd, Deterrence versus Brutalization: Capital Punishment’s Differing Impacts Among States (draft, October 2004).

Also, consider--for what it's worth (I don't know what it's worth)--this comment that has been posted on the Sunstein-Vermeule paper:

Subject: A house of cards argument
Comment by:    Karl Keys
 
The entire work depends on research that has been debunked. The researchers in the studies key to the work, in many instances, have not permitted their underlying data to be examined by peers. Likewise, by moving the data just a few years in any direction you get entirely different results. Further, the data sets appear (again the underlying data is not available for critique) to be arbitrarily chosen to reach a desired conclusion.

Put bluntly, Sunstein and Vermeule appear to have spilled much ink and drummed up much hype on shaky data. Take away the shaky data and all you have is pure spin dressed up in pretty words.

Shame on them.

Wednesday, March 23, 2005

The Ground of Human Rights

By Michael Perry

If, like me, you are interested in the question of the ground of human rights--more precisely, the ground of what I call "the morality of human rights"--you may want to track down and peruse the two following books:

Roger Ruston, Human Rights and the Image of God (SCM Press 2004).

Thomas D. Williams, Who Is My Neighbor?  Personalism and the Foundations of Human Rights (Catholic University of America Press 2005).

(For my struggles with the issues, see here and here.)

Michael P.

Tuesday, March 22, 2005

Punishment and Moral Desert

By Michael Perry

A thought for Rick, Rob, and anyone else interested:  If it would be wrong for us to punish a human being--any human being--in a certain way (say, by executing him), no matter what he has done--if, for example, it would be contrary to the charity with which we are called to treat every human being ("Love another just as I have loved you") to punish a human being--any human being--in a certain way, then it follows that no human being deserves to be treated that way.  That is, it follows that no human being ought to be treated that way--at least, by those of us who are committed to the relevant moral norm, which, in this case, is charity.  (The "at least" is for those of us who accept "internal" reasons for action but reject "external" reasons.)  I realize that this thought is compressed--I'm on the run.   I will soon post a paper--probably next week--that deals with some of this.  The paper, Capital Punishment and the Morality of Human Rights, is forthcoming in St. John's Universy School of Law's Journal of Catholic Legal Studies.  If Rick or anyone else has a different understanding of moral "desert", I'd like to hear about it.  Pending a response, it seems to me that if all things considered one (morally) ought not--if one ought not, for whatever reasons or reasons--to be treated in a certain way, then he does not (morally) deserve to be treated that way.  No one morally deserves what we morally ought not to do to him ... unless I'm overlooking some complication.  I'm eager to be tutored.

Monday, March 21, 2005

The Schiavo Bill

By Michael Perry

If you want to read the legislation signed by President Bush this morning, click here.

Saturday, March 19, 2005

In re Schiavo

By Michael Perry

Gerry Whyte, of Trinity College Dublin, writes:

MOJ bloggers might (pace Scalia J) be interested to see how another jurisdiction handled the issues arising in the Schiavo case.  An Irish Supreme Court judgment in 1995 dealing with these issues may be read at http://www.bailii.org/ie/cases/IESC/1995/1.html    In my opinion, however, the majority decision is open to criticism. In authorising the withdrawal of artificial nutrition and hydration from a near-PVS patient, the majority judgments leave the law uncertain in some important respects. They offer no useful assistance for determining at what point along the scale of consciousness this paternalistic jurisdiction kicks in and they also  fail to clarify the extent of the State's interest in preserving life.

Religion in Politics in the UK

By Michael Perry

[Thought that this piece would be of interest to some MOJ readers.  From The Guardian, March 18, 2005. ]

Don't hand religion to the right    

The secular left must stop sniping and realise it has Christian allies

Giles Fraser  and William Whyte
Friday    March     18, 2005
The Guardian

For decades, the political class on this side of the Atlantic has prided itself on the absence of religious culture wars. The obsession with abortion, gay marriage and obscenity, the alliance between the secular and religious right - these are peculiarly American pathologies. It couldn't happen here. After all, we're just not religious enough.

Except it does seem to be happening here. In making abortion an election issue, Michael Howard has prompted the Archbishop of Westminster, Cardinal Cormac Murphy-O'Connor, pointedly to warn against assuming "that Catholics would be more in support of the Labour party". Elsewhere, the Christian right targets the BBC, and the Church of England is being colonised by homophobic evangelicals with broad smiles and loads of PR savvy. No wonder the cogs are whirring at Conservative central office on how best to exploit the voting power of religion.

In contrast, the left continues to push religion away. They "don't do God", in Alastair Campbell's famous phrase. Even those politicians of the left who "do God" privately have to be effectively outed, as Ruth Kelly was over her membership of Opus Dei. It never used to be like this. There has long been an affinity between the church and the left. The Liberal party was sustained by the so-called nonconformist conscience and the Labour party famously derived more from Methodism than Marx - Keir Hardie once describing socialism as "the embodiment of Christianity in our industrial system". Later both CND and the anti-apartheid movement were inspired by Christian socialism.

[To read the rest of this provocative piece, by the Vicar of Putney (Fraser) and a Fellow in History at St. John's College, Oxford (Whyte), click here.]

Thursday, March 17, 2005

Inherent Human Dignity

By Michael Perry

I concur in what Vince says in his post below.  Even the most depraved criminal retains his (or her) inherent human dignity.  (John Paul II emphasizes this again and again; in this, JPII and the international law of human rights speak with one voice.)  One cannot forfeit that dignity no matter what one does.  We are called to love--to treat with charity as well as with justice--even the most depraved criminal.  I cannot discern how one could agree with what Eugene Volokh says, or do what he recommends, without betraying Jesus's "new" commandment:  "You are to love one another; love one another just as I have loved you."  In my paper, The Morality of Human Rights:  A Nonreligious Ground?, in imagining a person, Sarah, who gives a religious ground for the morality of human rights, I write:

As it happens, Sarah embodies Jesus’s extravagant counsel to “love one another just as I have loved you.” She loves all human beings. Sarah loves even “the Other.”  She loves not only those for whom she has personal affection, or those with whom she works or has other dealings, or those among whom she lives; she loves even those who are most remote, who are unfamiliar, strange, or alien; those who, because they are so distant, weak, or both, will never play any concrete role, for good or ill, in Sarah’s life. (“The claims of the intimate circle are real and important enough. Yet the movement from intimacy, and to faces we do not know, still carries the ring of a certain local confinement. For there are the people as well whose faces we never encounter, but whom we have ample means of knowing about . . . . [T]heir claims too, in trouble, unheeded, are a cause for shame.”) Sarah loves even those from whom she is most estranged and towards whom she feels most antagonistic: those whose ideologies and projects and acts she judges to be not merely morally objectionable, but morally abominable. (“[T]he language of love . . . compels us to affirm that even . . . the most radical evil-doers . . . are fully our fellow human beings.”) Sarah loves even her enemies; indeed, Sarah loves even those who have violated her. Sarah is fond of quoting Graham Greene to her incredulous friends: “When you visualized a man or a woman carefully, you could always begin to feel pity . . . . When you saw the corners of the eyes, the shape of the mouth, how the hair grew, it was impossible to hate. Hate was just a failure of imagination.”

A hateful--hate-full--vengeance permeates what Eugene Volokh says.

Michael P.

Cleft Lip and Palate a Disability Justifying Abortion?

By Michael Perry

[MOJ readers may be interested in this disturbing story:]

Cleft lip abortion done 'in good faith'    

James Meikle, health correspondent
Thursday  March 17, 2005
The Guardian

   Doctors and health officials will consider whether more guidance on abortions is needed following the decision of the Crown Prosecution Service not to prosecute two doctors who authorised a late abortion on a foetus with a cleft lip and palate.

Jim England, the chief crown prosecutor for West Mercia, said the doctors believed, in good faith, that there was a substantial risk the child would be seriously handicapped. "In these circumstances, I decided that there was insufficient evidence for a realistic prospect of conviction and that there should be no charges against either of the doctors," he said.

The inquiry began after a legal challenge over a previous decision by police not to charge the doctors involved in the abortion carried out, in 2001, on an unnamed woman from Herefordshire who was more than 24 weeks pregnant.

Joanna Jepson, 28, now at St Michael's Church, Chester, but then a trainee vicar, found out about the procedure in 2002 when studying abortion statistics and suggested that it amounted to unlawful killing.

Yesterday Ms Jepson said: "While I'm disappointed about the CPS's decision to drop the case, I am pleased the case has raised the issue of late-term abortion and the plight of disabled babies in late-term pregnancy. It has exposed grave discrimination and I will be seeking legal advice."

She said she might try to get clarification from the courts about whether unborn children in the third trimester have got human rights and what constituted "serious handicap".

She might consider whether to re-open a judicial review of the first decision not to prosecute. This was stayed after police decided to conduct a second inquiry into the case, admitting the initial decision was not based on a full investigation.

Ms Jepson was born with a congenital jaw defect, uncorrected until her teens, and her brother has Down's syndrome. Her lawyers had argued that a cleft palate could not be considered as a severe disability.

The prosecutor's decision coincides with heated debate over whether the 24-week limit on terminating pregnancy should be reduced. The 1967 Abortion Act allows for later termination if two doctors decide a child would be seriously handicapped.

The Department of Health would not comment on the case but the Royal College of Obstetrics and Gynaecology said it knew the doctors "were acting in good faith and within the current legislation," adding: "We now need to consider whether further guidance is needed."

Ann Furedi, chief executive of the abortion care organisation Bpas, said: "This is very good news. We were very concerned at the prosecution because this situation arose because somebody who had nothing to do with the particular case took this case to court claiming an offence had been committed."

She added: "Rather than leap into court or the papers, we need to take stock of the circumstance in which women and doctors make decisions around abortion."

The Cleft Lip and Palate Association accepted the CPS verdict. 

"Our concern was that if it was beyond all doubt that all it was a cleft lip and palate, then we could not understand why a decision to terminate had been taken," said the chief executive, Gareth Davies.

Hereford County Hospital's management, where the abortion was performed, reported "many expressions of support" for staff.

Wednesday, March 16, 2005

The Morality of Human Rights

By Michael Perry

 
Rick Garnett has referred to my work on human rights a few times--in particular, to my book The Idea of Human Rights (Oxford 1998).  I am now working on a new book on human rights, the (tentative) title of which is Human Rights as Morality, Human Rights as Law:  Toward a Theory of Human Rights.  The first chapter of the book will soon be published as an essay in a symposium issue of the Emory Law Journal.  The abstract of the essay is below.  If you would like to download and read the essay, click here and then download from SSRN.

Abstract:
   
In the midst of the countless grotesque inhumanities of the twentieth century, there is a heartening story:  the emergence, in international law, of the morality of human rights.  The morality of human rights is not new; in one or another version, the morality is very old.  But the emergence of the morality in international law, in the period since the end of World War II, is a profoundly important development.

The International Bill of Rights, as it is informally known, consists of three documents:  the Universal Declaration of Human Rights(UDHR), the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social, and Cultural Rights. The UDHR refers, in its preamble, to "the inherent dignity . . . of all members of the human family "and states, in Article 1, that "[a]ll members of the human family are born free and equal in dignity and rights . . . and should act towards one another in a spirit of brotherhood." The two covenants each refer, in their preambles, to "the inherent dignity . . . of all members of the human family" and to "the inherent dignity of the human person--from which, the covenants insist, "the equal and inalienable rights of all members of the human family . . . derive."  As the International Bill of Rights makes clear, then, the fundamental conviction at the heart of the morality of human rights is this:  Each and every human being--each and every member of the species Homo sapiens sapiens--has inherent dignity; therefore, no one should deny that any human being has, or treat any human being as if she lacks, inherent dignity.  To say that all human beings have inherent dignity is to say that one's dignity inheres in nothing more particular than one's being human; it does not inhere, for example, in one's "race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."  According to the morality of human rights, because every human being has inherent dignity, no one should deny that any human being has, or treat any human being as if she lacks, inherent dignity.  The conviction that every human being has inherent dignity--and that therefore no one should deny that any human being has, or treat any human being as if she lacks, inherent dignity--is so fundamental to the morality of human rights that when I say, in this Essay, the morality of human rights, I am referring to this conviction.  An act (whether of commission or omission) or a policy violates a human being, according to the morality of human rights, if the rationale for the action or policy denies that the human being has, or treats her as if she lacks, inherent dignity.  The morality of human rights holds that every human being has inherent dignity and is therefore inviolable:  not to be violated, in the sense of "violate" just indicated.

The morality of human rights responds to what is perhaps the most basic of all moral questions:  Which human beings are inviolable--all, some, or none?  Moreover, the morality of human rights is, for many secular thinkers, problematic, because it is difficult--perhaps to the point of impossible--to align the morality of human rights with one of the secularist's reigning intellectual convictions, what Bernard Williams called Nietzsche's thought:  "[T]here is, not only no God, but no metaphysical order of any kind . . . ."

In this Essay, I elaborate a religious ground for the morality of human rights.  I then pursue the question whether there is a nonreligious (secular) ground for the morality of human rights.  Along the way, I comment critically on the positions of John Finnis, Ronald Dworkin, Martha Nussbaum, and Richard Rorty.

This Essay, which is being published in a symposium issue of the Emory Law Journal, is part of a larger work in progress--a book--tentatively titled Human Rights as Morality, Human Rights as Law:  Toward a Theory of Human Rights.
 
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