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.

Thursday, March 24, 2005

Those Crazy Religious Doctors

Every day seems to bring more evidence of society's solidifying presumption that an individual's religious or moral convictions should be separated from his professional decision-making.  Yesterday I noted the rally to protest a pharmacist who would not prescribe birth control pills (but who still referred customers to someone who would).  Today we have the New York Times' strange profile of a neurologist who has spoken up on behalf of Terri Schiavo.  From the first sentence of the article, we know where we're headed, as the Times observes that William P. Cheshire's "life and work have been guided by his religious beliefs."  We are told that he is part of a bioethics center that was founded by "Christian" bioethicists.  As for his career path,

Dr. Cheshire entered the field of bioethics relatively late in his career. A profile of him on the Web site of Trinity International University, where he enrolled in the master's program in bioethics in 2000, states that he was "searching for how he should integrate his faith with his medical career."

In case we have not yet gotten the picture of a religious zealot, the article is careful to point out that "he and his wife and four children are members of the Episcopal Church of the Redeemer in Jacksonville and that he has done medical missionary work in Honduras and Siberia."

I have no idea if Dr. Cheshire knows what he is talking about, and indeed his opinion in the Schiavo case seems wide open to criticism.  But criticism targeting the merits of his expressed opinion is one thing; criticism targeting the religious identity of the opinion-giver is quite another.  The message is clear: the fact that this individual has mixed his religious identity with his professional identity is prima facie evidence that he is a quack.

Rob

Wednesday, March 23, 2005

Moral Agency as Public Menace

The battle over the ability of individuals to exercise moral agency in their professional decision-making appears to be heating up, especially when it comes to pharmacists.  Planned Parenthood organized a protest rally in Chicago yesterday to target a pharmacist who refuses to fill prescriptions for birth-control pills.  The pharmacist is following company policy by referring customers to another pharmacist on duty or another pharmacy.  Nevertheless, according to protesters, "women are shamed and humiliated when a pharmacist refuses to fill their prescription."

UPDATE: If you're interested in this issue, you might want to read my article, Heretics in the Temple of Law: The Promise and Peril of the Religious Lawyering Movement (posted in the right-hand column under my name), in which I take on the contention that lawyers should not take moral responsibility for their professional conduct.

Rob

Tuesday, March 22, 2005

Legal Advice as Moral Perspective

In the right-hand column under my name I've posted a new article, "Legal Advice as Moral Perspective," forthcoming from the Georgetown Journal of Legal Ethics.  Here is the abstract:

The legal profession’s many critics have long insisted that lawyers corrode social values by manipulating the law for the benefit of their clients while paying no heed to the wider impact of their work.  This familiar charge has garnered new credence in light of the central roles played by lawyers in an already infamous triumvirate of recent public scandals.  First, by appearing to offer a legal justification of torture, government attorneys stand accused of facilitating the mistreatment of prisoners held in the war against terrorism.  Second, Enron’s attorneys are blamed for facilitating the company’s demise by providing legal cover for management’s destructive obsession with short-term profit.  Third, the Catholic Church’s attorneys are seen as having exacerbated bishops’ gross mishandling of the priest sex abuse crisis by adopting an aggressively adversarial stance toward victims.  Transcending the dominant caricature of lawyers as lacking social consciences, the article weaves the recent scandals into a story of the pervasive disconnect between legal advice and moral advice – a disconnect grounded in the profession’s presumption that questions of legality can be sealed off from questions of the good.  In a departure from leading academic critiques, however, the article casts moral lawyering as a dialogue to be cultivated, rather than the pursuit of a particular moral norm.  Specifically, the article argues that an attorney’s moral perspective is inexorably part of the interpretive dynamic that makes the attorney-client dialogue possible.  This article traces the paths by which the attorney-client dialogue can be enhanced to delve beyond questions of law and engage the moral perspectives that invariably drive the representation.

Rob

Monday, March 21, 2005

What Punishment Does Couey Not Deserve?

My hesitation regarding retribution as the impetus for state punishment stems from the absence of readily apparent limits. Rick offers that "punishment in excess of desert is impermissible, but also that punishment consistent with desert is permissible." As such, John Couey "may not be punished more severely than he deserves," but "it is possible for a responsible agent to deserve justly-structured punishment." I agree, but what sort of punishment does Couey not deserve? In my estimation, the "but I don't deserve this" defense is categorically unavailable to a man who kidnaps, sexually abuses, and murders a child. If retribution is equated with desert, it seems that the permissible scope of punishments is boundless. Rick wisely notes that Christian love supplies a reason for mercy, but in that case we seem to have left the province of desert. Iran's approach to punishment may be a failure of mercy, but how can it be considered a failure of desert? If mercy is to lead us to alleviate the awful and stark ramifications of desert, maybe an acceptable Christian justification for punishment is "retribution lite" (retribution tempered by mercy), for it can't be retribution as equated with desert, can it?

Rob

George on Schiavo

Princeton's Robert P. George offers his thoughts on the Schiavo case here.  His comments also bear on our conversation (below) on retribution and the criminal law:

From a moral vantage point, it can be, though it will not always be, permissible to decline treatment — even potentially life-saving treatment — when one's reason for declining the treatment is something other than the belief that one's life, or the life of the person for whom one is making a decision, lacks sufficient value to be worth living. What we must avoid, always and everywhere, is yielding to the temptation to regard some human lives, or the lives of human beings in certain conditions, as lebensunwerten Lebens, lives unworthy of life. Since the life of every human being has inherent worth and dignity, there is no valid category of lebensunwerten Lebens. Any society that supposes that there is such a category has deeply morally compromised itself. . . .

Now let's consider the death penalty. Its supporters typically do not claim that the death-row inmate has a life unworthy of life. That isn't their justification for capital punishment. Their claim, rather, is that the individual convicted of a capital murder should be executed because that is what justice requires as payment for his heinous crime. Their justification for the death penalty is retributive. (Of course, they may also believe that the application of the death penalty will prevent the murderer in question from repeating his crimes and perhaps also deter others.) They may fully recognize the inherent dignity and value of every human life, including the life of the murderer himself, yet believe that by wantonly taking the life of another human being the murderer has forfeited his own right to life. Some supporters of the application of the death penalty in the case of Karla Faye Tucker acknowledged that she had repented of her crime and reformed herself. They certainly did not regard her as unfit to live. Indeed, they believed that, if spared, she would probably devote her life to good causes. Yet they believed that retributive justice demanded her execution.

(HT: Open Book)

Rob

What Should We Do With John Couey?

The conversation sparked by Eugene Volokh's post on executions in Iran is an important one.  The conception of human dignity underlying Catholic legal theory should have a discernible impact on our understanding of criminal law.  Public safety, deterrence, and perhaps restitution are fairly uncontroversial, but the role of retribution may be contested.  Rick asserts that "punishment is justified because and only to the extent that the criminal deserves it and it will redress the disorder introduced by his offense."  Michael Perry emphasizes that "[w]e are called to love--to treat with charity as well as with justice--even the most depraved criminal."

I'm wondering if we can bring the conversation to bear on a particular, heartbreaking case.  John Couey stands accused of kidnapping, sexually abusing, and killing a 9 year-old Florida girl.  The sheriff has referred to Couey as "trash," and the girl's father has expressed his (understandable) desire to see Couey "rot in hell."  Putting capital punishment to the side and assuming that Couey is proven guilty, what is the proper role for retribution in Couey's punishment?  How can the state redress the disorder caused by this unspeakable crime?  How should the state show charity (and justice) to Couey?  Is a lifetime of physical suffering (e.g., chain gangs) or a lifetime of opportunities to cultivate his own personhood (e.g., prison art classes) more compatible with Catholic legal theory?  Should the state aim to rehabilitate Couey so that he could rejoin society, or does retribution trump rehabilitation in some egregious contexts?

In other words, if Catholic legal theorists were asked to advise the prosecutor, court, and prison warden on the just and humane treatment of Couey, what would we say?

Rob

Friday, March 18, 2005

Punishment and Pain

Catholic University philosophy prof Bradley Lewis offers the following response to my query regarding a Catholic take on Eugene Volokh's embrace of Iran's approach to executions:

[I]t may be worth noting that barbaric criminal punishment is certainly not unknown in Christendom. Consider the following passage from Blackstone's Commentaries (bk. 4, ch. 6: one can now read Blackstone on-line here)

THE punishment of high treason in general is very solemn and terrible. 1. That the offender be drawn to the gallows, and not be carried or walk; though usually a fledge or hurdle is allowed, to preserve the offender from the extreme torment of being dragged on the ground or pavement. 2. That he be hanged by the neck, and then cut down alive. 3. That his entrails be taken out, and burned, while he is yet alive. 4. That his head be cut off. 5. That his body be divided into four parts. 6. That his head and quarters be at the king's disposal.

One should also observe that there is a note appended to this passage in the text that says the following: "This punishment for treason Sir Edward Coke tells us, is warranted by diverse examples in scripture; for Joab was drawn, Bithan was hanged, Judas was embowelled, and so of the rest. (3 Inst. 211.)." Thus, there is certainly a historical warrant for such punishments within the ambit of Christian jurisprudence.

Be that as it may, I think the Catholic tradition offers ample resources for opposing such practices. Particularly important here is the view of Aquinas, helpfully expounded by John Finnis in "Retribution: Punishment's Formative Aim," American Journal of Jurisprudence 44 (1999): 91-103. The crucial passage in Finnis's paper is this:

The essence of punishments, as Aquinas clearly and often explains, is that they subject offenders to something contrary to their wills--something contra voluntatem (citing Sentences, d. 42, q. 1, a. 2c; Summa theologiae 1a2ae, q.46, a. 6, ad2, and 1a, q. 48, a. 5c, and 1a2ae, q. 87, aa. 2c & 6c). This, not papin, is of the essence. Why? Because the essence of offenses is that in their wrongful acts offenders "yielded to their will more than they ought" (citing Summa theologiae, 1a2ae, q. 87, a. 6c), "followed their own will excessively," "ascribed too much to their own preferences"--the measure of excess being the relevant law or moral norm for preserving and promoting the common good. Hence the proposition foundational for Aquinas' entire account of punishment: the order of just equality in relation to the offender is restored--offenders are brought back into equality--precisely by the "subtraction" effected in a corresponding, proportionate suppression of the will which took for itself too much." (pp. 98-99; I've ommitted most notes)

It's worth noting that in the essay Finnis is opposing Aquinas's view especially to that of Nietzsche as stated in On the Genalogy of Morality (2d treatise). Finnis' point, then, is that pain (if there be pain in some punishment) is an accidental feature and certainly not something inflicted for its own sake. Considerations about just what constitutes a proportionate suppression of an offending will in the context of the overall common good are decisive. At a minimum, it seems to me that the effect of torture not on the one tortured but on the torturer and on the whole community is enough to abolish punishments that involve torture. Of course, it should also be noted that Finnis's points here are not theological, but simply philosophical so far as I can tell. I should think that explicitly theological considerations would only add to the weight of the argument.

Thursday, March 17, 2005

Can the State Inflict Pain?

A serial killer of children was executed in Iran, with the victims' family members participating in a slow and brutal process of stabbing, flogging, and hanging.  Eugene Volokh embraces this approach:

I particularly like the involvement of the victims' relatives in the killing of the monster; I think that if he'd killed one of my relatives, I would have wanted to play a role in killing him. Also, though for many instances I would prefer less painful forms of execution, I am especially pleased that the killing — and, yes, I am happy to call it a killing, a perfectly proper term for a perfectly proper act — was a slow throttling, and was preceded by a flogging. . . . I am being perfectly serious, by the way. I like civilization, but some forms of savagery deserve to be met not just with cold, bloodless justice but with the deliberate infliction of pain, with cruel vengeance rather than with supposed humaneness or squeamishness. I think it slights the burning injustice of the murders, and the pain of the families, to react in any other way.

Putting the question of capital punishment to the side, is there any basis in Catholic legal theory for seeking to inflict pain in our punishment of criminals?  According to the Compendium of the Social Doctrine of the Catholic Church (para. 402), the state "has the twofold responsibility to discourage behaviour that is harmful to human rights and the fundamental norms of civil life, and to repair, though the penal system, the disorder created by the criminal activity."  And in correcting the offender, punishment is to encourage "the re-insertion of the condemned person into society," and foster "a justice that reconciles, a justice capable of restoring harmony in social relationships disrupted by the criminal act committed." (para. 403)

Given these objectives, is punishment to be as painless (physically, mentally, and spiritually) as possible, or in fulfilling its duty to discourage improper behavior, especially monstrous behavior, does pain have a place?

Rob   

Tuesday, March 15, 2005

Evangelicals and Catholics as Conservative Alliance

In the current Books & Culture, noted evangelical theologian J.I. Packer paints an intriguing portrait of William Shea's recent book, The Lion and the Lamb: Evangelicals and Catholics in America (Oxford 2004).  Shea traces:

the parallel between the Catholic and evangelical volte-faces during the past century and a half. The Catholic story is of defensive anti-modernism capped by Vatican II's new openness to dialogue with the world and with non-Catholic Christianities, a move that left integralists behind. The evangelical story is of anti-liberal fundamentalism trumped by the commitment of the 1942 National Association of Evangelicals to interactive engagement with both secularism and Protestant liberalism, a move that left fundamentalists behind.

In many ways, it seems conservative Catholics and evangelical Christians have more in common with each other than they do with the more liberal elements of their own faith tradition.  Packer explains that:

To all conservative Christians, liberals, however well meaning, appear as parasitic cosmeticians; cosmeticians, because they constantly aim to remove from Christianity that which outsiders, like some inside, find intellectually unsightly and unacceptable; parasitic, because they attach themselves to the historic faith and feed off it even as they whittle it down, diminishing, distorting, and displacing major features of it to fit in with what their skeptical conversation partners tout as factual truth. In mainline Protestantism, where doctrinal discipline is, alas, virtually nonexistent, liberals have a free run, but in Catholicism only a few steps along this road prove to be too far. Witness Hans Küng . . . . Liberal Catholicism may have charms, but has it a future? One doubts it.

Read the rest here.

Rob

Sunday, March 13, 2005

Eschatology as Murder Motive

In its coverage of Saturday's Wisconsin church shootings, The New York Times dove right into the heart of the story, in its view: the crazy beliefs of the church, especially the church's "end times" beliefs:

The church's "pre-millennial" view of history, which asserts that humankind is moving inexorably toward the "end times," when the world will go through a series of cataclysms before the second coming of Christ, is not uncommon among evangelicals. Dr. Meredith preached in a recent sermon broadcast internationally that the apocalypse was close, warning members to pay off credit-card debt and hoard savings in preparation for the United States' coming financial collapse.

But James R. Lewis, author of "The Encyclopedia of Cults, Sects and New Religions," said such focus on the end of the world "doesn't make them violent."

"All traditional, conservative religious groups have an end-time belief, even peace groups like the Amish and the Mennonites," said Mr. Lewis, a lecturer at the University of Wisconsin at Steven's Point. "It is radically unfair to say that because they have a belief in the apocalypse, they are prone to violence. They shouldn't be stigmatized on basis of theology."

I appreciate the gracious opportunity afforded by The Times for Mr. Lewis to disassociate a belief in the apocalypse from any murder committed by an individual holding such a belief, but exactly who (besides the reporter) was making such an accusation in the first place? Perhaps the journalistic reasoning goes like this: reasonable folk recognize that mass murder makes no sense; reasonable folk recognize that a belief in a divinely ordained end to human history makes no sense; therefore, the two must be connected. Is this part of the mainstream media's effort to take religion more seriously?

Rob