Over at the intriguing new blog Catholic Ramblings, there is a suggestion that American tort law has lost sight of justice -- at least as understood by Aquinas and Hilaire Belloc -- as it has expanded the reach of vicarious liability:
[Vicarious liability] is not limited to medical malpractice cases, but seems to operate to impose liability on a larger (and in many cases, wealthier) entity when an individual would not be able to pay the damages caused by that individual. And yet, this liability is imposed many times on the basis not of desire or actual harm caused by the larger entity, but on the theory, the “legal fiction” that the larger entity is somehow responsible for the damages caused by the ill-will or mistake of the individual. Belloc, I believe, is correct in noting that this is a breach of justice - to denote fault to another entity because of the error on the part of an individual which has little or nothing to do with the other entity is unjust, on the basis noted by Aquinas that justice is, “Rendering to each one his right,” since, as Isidore says, “a man is said to be just because he respects the rights [jus] of others.” Rendering to each one his right includes, then, the right to be punished according to fault or breach of justice.
The objection from today’s society is, of course, “who, then, will pay for the loss of the injured, if the one who produced the injury cannot? It would be unjust to allow this injury to go uncompensated.” In the far past, one might expect that the criminal laws would enter now, to imprison the injurer. However, even if the criminal law operates now, the tort law may still have a say in attempted recovery. I wonder if this is an result of our individualism and loss of reliance on God to rectify, whether in this life or the next. If injury to another human being is an affront to God, then on Earth, it becomes an affront to the community of believers, to society, and it is society which will imprison with the force of the magistrate. However, in an individualistic and agnostic society, individual injury, not society, must form the basis of compensation. Yet, we still have criminal laws which we have inherited from ancient times, which operate in tandem with the increasingly danegeld system to produce bizarre results whereby a man may be punished twice for his actions, and, even more oddly, a man be punished and then his entire extended system of contacts be searched for additional sources of wealth to pay for the injury.
This is an interesting perspective, but I disagree. First, I don't think we can say that the vicariously liable entity has "little or nothing to do" with the wrongdoing entity -- generally, the wrongdoing has occurred as part of the larger entity's operations. E.g., even if the hospital is not negligent in allowing the harm-causing surgeon to operate in its facilities, the wrongdoing still occurs as part of the hospital's operation, and the hospital is still in the best position to take steps to guard against the wrongdoing. Second, my conception of justice is much broader than the question "whose behavior is culpable in this scenario?" The law & econ crowd is not always sufficiently focused on issues of justice, but they have driven home the point that the externalities of an entity's operations should be a concern for society. Tortious harm is not just a question of individual culpability. It's a question of incentivizing social actors to account for harms directly related to their conduct. In this regard, vicarious (as well as strict) liability is not simply a "show me the money!" concession to our sense of individual entitlement -- though making a victim whole has to be part of the justice analysis. Non-fault-based liability is also a prudent acknowledgment that the causes of human suffering do not always correlate with culpability. Justice is not just about punishing those who deserve it; it's also about clarifying the relationship between conduct and consequences.
UPDATE: Jonathan at Catholic Ramblings responds here. I think our disagreement centers on my belief that tort law is not simply a mechanism for punishment; it is also a mechanism for the just allocation of risk associated with socially beneficial conduct.
Wednesday, January 24, 2007
Physicist Steven Weinberg has an interesting review of Richard Dawkins' book, The God Delusion (HT: Leiter):
Where I think Dawkins goes wrong is that, like Henry V after Agincourt, he does not seem to realize the extent to which his side has won. Setting aside the rise of Islam in Europe, the decline of serious Christian belief among Europeans is so widely advertised that Dawkins turns to the United States for most of his examples of unregenerate religious belief. He attributes the greater regard for religion in the US to the fact that Americans have never had an established Church, an idea he may have picked up from Tocqueville. But although most Americans may be sure of the value of religion, as far as I can tell they are not very certain about the truth of what their own religion teaches. According to a recent article in the New York Times, American evangelists are in despair over a poll that showed that only 4 per cent of American teenagers will be “Bible-believing Christians” as adults. The spread of religious toleration provides evidence of the weakening of religious certitude. Most Christian groups have historically taught that there is no salvation without faith in Christ. If you are really sure that anyone without such faith is doomed to an eternity of Hell, then propagating that faith and suppressing disbelief would logically be the most important thing in the world – far more important than any merely secular virtues like religious toleration. Yet religious toleration is rampant in America. No one who publicly expressed disrespect for any particular religion could be elected to a major office.
Even though American atheists might have trouble winning elections, Americans are fairly tolerant of us unbelievers. My many good friends in Texas who are professed Christians do not even try to convert me. This might be taken as evidence that they don’t really mind if I spend eternity in Hell, but I prefer to think (and Baptists and Presbyterians have admitted it to me) that they are not all that certain about Hell and Heaven. I have often heard the remark (once from an American priest) that it is not so important what one believes; the important thing is how we treat each other. Of course, I applaud this sentiment, but imagine trying to explain “not important what one believes” to Luther or Calvin or St Paul. Remarks like this show a massive retreat of Christianity from the ground it once occupied, a retreat that can be attributed to no new revelation, but only to a loss of certitude.
Much of the weakening of religious certitude in the Christian West can be laid at the door of science; even people whose religion might incline them to hostility to the pretensions of science generally understand that they have to rely on science rather than religion to get things done.
Though he overstates the point, I think Weinberg is onto something (as was Alan Wolfe). I recall being told the story of a young Billy Graham responding to his own doubts about the Bible's accuracy by laying the book on a tree stump and committing to God that he would not question it from that moment on. Such willful certitude is jolting to me, and I don't think I'm unusual among Christians today in that regard. Does that make us engagingly humble or infinitely malleable?
In The Boston Globe, Jeff Jacoby debunks the New York Times' front-page headline that 51% of American women are living without husbands. (HT: Family Scholars Blog) Apparently, the Times counted high school girls as "women living without husbands" as well as the millions of women whose husbands are in the military, working out of town, or institutionalized. In reality, marriage is not on its way out. Jacoby cites data from a new book by David Blankenhorn:
Divorce rates are declining modestly.
Teen pregnancy rates are dramatically lower.
Rates of reported marital happiness, after a long slide, appear to be rising. And a substantial majority of American children, 67 percent, are being raised by married parents.
By even wider margins, young Americans look forward to being married: 70 percent of 12th-grade boys and 82 percent of 12th-grade girls describe having a good marriage and family life as "extremely important" to them. Even higher percentages say that they expect to marry.
The '60s, the sexual revolution, no-fault divorce, the rise of single motherhood -- there is no question that marriage has been through a wringer. Yet our most important social insitution remains a social ideal. Boys and girls still aspire to become husbands and wives.
Over at the Evangelical Outpost, Joe Carter wonders why President Bush was eager to speak up for protecting human life to a crowd of pro-lifers at yesterday's March for Life, but failed to mention the issue when addressing the entire nation tonight. He captures the State of the Union in this graphic:
From the other side of the political spectrum, Jack Balkin is a wee bit skeptical about the President's annual statement to the pro-life marchers. An excerpt:
[P]erhaps most importantly, the President did not use this opportunity to call directly for overturning Roe v. Wade. If he was really serious about protecting the sanctity of life as he sees it, he would do more than nibble about the edges with makeweights like the Born-Alive Infants Protection Act of 2002: he would state, clearly and forcefully, that Roe v. Wade is legalized murder and demand that it be overturned immediately. But he has not done so. Indeed, throughout his political career George W. Bush has always appealed to pro-life voters but has always stopped short of advocating the policy that they actually seek -- the overturning of Roe and the criminalization of abortion. The reason is that he knows the achievement of both of these would be a disaster for the electoral prospects of the Republican Party. Clearly some things are far more important than protecting the sanctity of human life.
Monday, January 22, 2007
Daniel Conway, a physician and professor of medicine at Drexel, emailed this response to my skepticism about the proposed mandatory STD vaccinations for sixth graders:
[P]rotective claims of "maintaining innocence" make me roll my eyes. Since somewhere distant in this evaulation, this issue involves "sex," the culture warriors fly into fits. The "sex" part of "sexually transmitted disease" is so much more provocative for culture warriors than the "disease" part of "sexually transmitted." And as such prompts the typical and expected reaction.
Pap smears, done on every woman, detect cervical cancer. Caused by this virus, the papilloma virus, for which the vaccine Gardasil provides protection. So every woman who gets a Pap smear is suspected of having a sexually transmitted disease. In fact, the pursuit of sexually transmitted diseases is maybe 95% of the laboratory evaluations of the routine gyneocologic visit and a routine aspect of the evaluation of the pregnant woman. Over and over again. To be married in Pennsylvania, a syphilis test had been required until recently. Syphilis evaluations, gonococcal testing, chlamydial testing, HIV testing are the routine prenatal evaluations.
So why the drama about this vaccine? The age of the recipient? And the "sex" part of the STD?
Who knows what goes on behind closed doors? In the suburbs. In middle America. Who is getting abused by her stepfather or mother's boyfriend? Sexually transmitted diseases are epidemic. Public health determinations demand that everyone be considered at risk for these diseases. (And considering the poll numbers that reveal the degree of infidelity within a marriage, I would agree. Everyone is at risk.) Vaccinate.
This week's NY Times Magazine has a must-read cover story, "Is There a Post-Abortion Syndrome?" There is much to discuss, including this:
While national groups like Focus on the Family, the National Right to Life Committee and Concerned Women for America warn about the dire effects of abortion on their Web sites and link to counseling ministries like Rachel’s Vineyard, they don’t finance abortion-recovery counseling. In part, that may be because the government and the Catholic Church do. But the lack of money may also reflect the strain of skepticism that [C. Everett] Koop voiced. Francis Beckwith, a professor of church-state studies at Baylor University who is anti-abortion, has criticized abortion-recovery activists for their “questionable interpretation of social-science data” and for potentially undermining the absolutist moral argument against abortion. “For every woman who has suffered trauma as a result of an abortion, I bet you could find half a dozen who would say it was the best decision they ever made,” he told me. “And in any case, suffering isn’t the same as immorality.” Beckwith speaks at churches and colleges, and he says that most anti-abortion leaders don’t want the woman-protective argument to supersede the traditional fetus-centered focus, “because that’s where the real moral force is.”
I don't spank my kids, but I also don't think that my friends and relatives who do occasionally spank their kids are criminals. Someone needs to introduce California Assemblywoman Sally Lieber to the principle of subsidiarity. (HT: Jonathan Watson)
