Last week I noted Deal Hudson's apparent application of just war theory to torture. My post was picked up by the folks at Vox Nova, who observed:
If this is true, and Hudson did indeed make this argument, then it has grave implications. He has fallen into the consequentialist trap, when the Church has unambiguously declared torture to be an intrinsically evil act, regardless of intent or circumstance. The analogy with just war teaching is off. The reason one cannot say upfront that all war is intrinsically evil is that some wars may be justified by circumstances. It so happens that these circumstances are more narrowly circumscribed that many Catholic war defenders are willing to admit, but the door is still open, even if slightly. It’s the same with the death penalty, but here the opening is so narrow that no case in the modern world would realistically make it through. But the door is firmly closed against torture. As an intrinsically evil act, you do not need to move onto the next phase of the moral calculus and ask about consequences. It is for this reason that a particular directly-procured abortion could not be justified by any appeal to circumstances, such as the woman’s health, material circumstances etc.
I wonder if Hudson is aware how serious this is. If he is thinking along these lines, then he is standing resolutely against the magisterium on a non-negotiable matter. Ironically, Hudson has been out in front demanding sanctions against those who publicly support abortion from receiving the Eucharist. And yet, if you interpret the appropriate canon in this manner– as I have argued before– than Hudson’s own manifest support for an intrinsically evil policy on this scale would also be grounds for banning him from communion. Not that I support that, mind you, but let’s please be consistent.
This prompted Deal to write a response. Here's an excerpt:
2297 [of the Catechism] does not explicitly rule out torture in the case of gathering information to protect the common good; a confession is not that, it is an admittance of personal guilt about a specific act or set of acts.
2298 seems like a more sweeping comment, where it says that they deny "legitimate rights" of the human person and we should work "for their abolition. I don’t read this as declaring a non-negotiable ban on torture, but I can see why there would reasonable disagreement on the issue. My hunch is that the language in 2298 about working to abolish torture is same as the Church saying we should work to abolish war itself.
. . . I was assuming any act of torture would take place with the context of war, in the face of clear and present danger to the common good. I realize people are skeptical about such reasoning in the wake of Iraq, but the Church recognizes that war is sometimes necessary, along with all suffering and death that accompanies it.
A quick reaction to Chris Eberle's response to Casey Khan's point regarding the information gap: Approaching torture as a means of "harm distribution" seems to have no logical or moral stopping point. If waterboarding did not convince KSM to talk, it would still serve the cause of harm distribution to pull out his fingernails, place him on the rack, even boil him alive, wouldn't it? This gets at my intuitive discomfort with Chris's approach: I associate harm distribution with redirecting the effects of others' harmful conduct, but here we're talking about avoiding the effect of others' harmful conduct by engaging in our own freestanding harmful conduct. If KSM tosses a live grenade into a school bus, I would be justified in tossing it back out of the bus, even if it places KSM in harm's way by doing so. That's redistributing the harm. Pulling out his fingernails to find out where the bus is does not, in my estimation, redistribute the harm. It avoids the harm to the kids by causing harm to KSM. I don't think we can avoid consequentialist reasoning if we want to defend it.
Congrats to Rick and Tom B. for lending a hand to the cause of religious liberty in Connecticut. It appears that the proposal they submitted (along with Doug Laycock, Carl Esbeck, and Robin Wilson) helped shape the same-sex marriage bill that was passed last night. Over at the Volokh Conspiracy, Dale Carpenter applauded the new bill and commented specifically about the Berg-Garnett et al. proposal:
The proposal is important, both because it comes from acknowledged experts in the field of religious liberty and because it is likely to be endorsed in some version by even more academics and other advocates. My guess is that something like it will be introduced every time a same-sex marriage bill is considered.
I do not subscribe to the theory that torture is only torture if it leaves lasting scars. Even if I did, William Saletan explains why mental torture is still torture. Key quote: "You can't torture the mind without altering the brain."
And then there's this: Bobby Eberle, on the GOPUSA blog, asks "Mr. Obama, how far would you go to save an American life?" My own answer: "probably not as far as you would, Mr. Eberle, thank God." More interestingly, in the post he recounts a conversation with Deal Hudson about whether torture can ever be justified under Catholic teaching. Here's the excerpt:
In addressing "torture," Hudson put it in the context of the "just war" philosophy.
Hudson: As with just war theory, there must be a clear threat; there must be reasonable chance for success; there must be a reasonable use of force (in the case [of torture] death or impairment should never be the result), and the consequences should not cause greater harm.
Hudson further explained to me that "the precise issue is whether or not the state can inflict suffering in order to protect the common good. If we say 'yes,' the circumstances have to be tightly prescribed."
Assuming the quote is accurate, does anyone know what Deal Hudson is talking about? Is there any tradition of applying a just war framework to torture?
Readers of this blog know that I have expressed skepticism about justifications for excluding same-sex couples from the institution of marriage. At the same time, I find much of the rhetoric offered in support of SSM to be unhelpful and unproductive, to say the least. Exhibit A is today's speech by New York Governor David Paterson, who unveiled his proposal for SSM and made it very clear what he thinks of anyone who does not get on board:
Anyone that has ever experienced degradation or intolerance would understand the solemn duty and how important it actually is. Anyone that’s ever experienced antisemitism or racism, any New Yorker who is an immigrant, who has experienced discrimination, any woman who has faced harassment at work or suffered violence at home, any disabled person who has been mocked or marginalized, understands what we’re talking about here. We have all known the wrath of discrimination. We have all felt the pain and the insult of hatred. This is why we are all standing here today. We stand to tell the world that we want equality for everyone. We stand to tell the world that we want marriage equality in New York State.
Yes, it is undeniably true that many gays and lesbians have experienced discrimination, violence, and marginalization on account of their sexual orientation. But to imply that all opposition to SSM is coming from a place of "hatred" is inaccurate and irresponsible. It further polarizes a debate that is already deeply contentious. And when the governor of New York appears eager to engage in this sort of stark line-drawing, it does not bode well for the future viability of religious liberty. I believe that SSM will be adopted in the majority of states over the coming years, but the tone and substance of the political discourse used along the way matters a lot.
President Obama is looking to rescind the federal conscience rule adopted at the end of the Bush Administration. As MoJ readers are probably tired of hearing, I'm not a big fan of sweeping government conscience laws, but I'm hoping that Obama does not head to the opposite extreme via a sweeping government anti-conscience law.
Michael envisions the Christian prayer and oath-taking at the Inauguration as an exercise in American pluralism, and I find that vision to be very attractive. But I'm not sure if we're far enough along in our national sense of religious pluralism for that vision to be accurate today. I don't have sound empirical data on this question, but at least judging from my conversations with many friends and relatives, a lot of Americans cherish the Christian prayer and oath-taking at the Inauguration not as an expression of the President's personal faith, but as a collective expression of our nation's faith. The majority's view of these ceremonial exercises directly informs the minority's view. Witness the storm caused a couple of years ago when my congressman, Keith Ellison, decided to take the (ceremonial) oath on the Qur'an. Many non-Christians respond to the Christian prayer at the Inauguration as a message of exclusion because many Americans view the prayer as the nation's prayer, not Barack Obama's prayer.
I'm not quite ready to offer a coherent or compelling framework for resolving this issue, though. I would be troubled if prayer was banished from the Inauguration completely, even though I admit that any prayer is bound to alienate the agnostic/atheist citizen. Perhaps our diversifying religious landscape will make Michael's vision (and mine) a reality sooner than we think.
Last week at St. Thomas, the Murphy Institute for Catholic Thought, Law, and Public Policy convened a small conference of Catholic law professors to discuss the state of Catholic legal education, focusing in particular on whether there is a need to develop new curricular materials to foster conversations that are more likely to bring a Catholic understanding of law to the surface. I was unable to participate in every session, but the conversations that I was a part of were fascinating, though challenging. A few points on which there appeared to be widespread agreement:
The group came up with a list of topics that students at every Catholic law school should learn about before graduation, grouped under the subject areas of human nature, human action, common life, and state and governance. Existing materials in general do not do a good job teaching these concepts to students.
There is probably not a large market for materials that would bring these concepts more centrally into the law school classroom. Many of the professors who are interested in this sort of integration pull together materials on their own, though some are interested but don't know exactly how to go about finding helpful readings. This might affect the form in which materials are ultimately provided -- e.g., hard copy or web-based.
No one suggests that the existing casebooks should be tossed in favor of a new comprehensive set of "Catholic Torts" or "Catholic Contracts" casebooks. In most of the courses, the bulk of the material should remain the same in Catholic and non-Catholic law schools. Our students still need to pass the bar exam; it is more of a question of how to raise the bigger questions -- and start tracing some potential answers -- that often go unaddressed in a course.
On some points, though, there was no consensus:
Some participants envisioned a set of supplemental readings for a course like Torts that might, for example, address subjects like family-relationship immunities from the perspective of subsidiarity, or critique whether monetary damages as the sole remedy for harm is consistent with human dignity. Other participants worried that the advocates of this approach were extrinsicists, leading students to think that the Catholic perspective is an add-on to specific topics, rather than inherent in the natural unfolding of reason seen over the course of our legal tradition. (A personal note: I had never been called an extrinsicit before, at least not to my face, but my temper was kept in check by my confusion over what the word meant. In the heat of the moment, I opted for the tried and true, "It takes one to know one" retort. My own, post-dictionary-consulting reaction: if we can content ourselves with studying the legal tradition as an autonomous field, what is the purpose of a Catholic law school in the first place? Is our Catholic identity only relevant in the classroom in a course like Jurisprudence, where the Catholic perspective arguably can be pervasive throughout the subject matter?)
A related point: when we talk about curricular materials in Catholic legal education, should we be talking about Catholic or catholic? That is, there are some good casebooks in Torts and Professional Responsibility, for example, that take seriously the moral and philosophical dimensions of law and legal practice. Is that enough? Does there need to be an encyclical thrown in to warrant the label "Catholic?"
There really was never a dull moment. In the end, we agreed to begin work developing resources that provide students with "big picture," thematic overviews of different core subject areas from a Catholic perspective. I have no doubt that the conversation will continue. Other MoJers who attended (Patrick, Russ, Tom B., Lisa, Susan, Greg, Michael S.) can chime in to correct or supplement my observations.
It looks like a priest in South Carolina has gotten a bit out in front of the bishops conference on the subject of voting for a pro-choice candidate. An excerpt from Fr. Jay Scott Newman's letter to his congregation:
Voting for a pro-abortion politician when a plausible pro-life alternative exists constitutes material cooperation with intrinsic evil, and those Catholics who do so place themselves outside of the full communion of Christ’s Church and under the judgment of divine law. Persons in this condition should not receive Holy Communion until and unless they are reconciled to God in the Sacrament of Penance, lest they eat and drink their own condemnation.
