Wednesday, February 1, 2017
I am delighted by the President's nomination last evening of Judge Neil Gorsuch to the Supreme Court. Judge Gorsuch and I overlapped in our service in the Bush Administration, and we have kept in occasional touch since he left DC to go on the Tenth Circuit in 2006. I've used his superb book, The Future of Assisted Suicide and Euthanasia (Princeton UP, 2006), several times when teaching seminars on bioethics issues (the book's origins are in a doctoral dissertation at Oxford under the mighty John Finnis). Among the book's many virtues (especially for teaching with it) are the ways in which Judge Gorsuch so fairly and honestly lays out the arguments on all sides of the issues he explores.
For now, I wanted also to mention an essay Judge Gorsuch contributed to a Festschrift for John Finnis. The essay takes up the important question of intention in criminal law and torts, and it is a powerful argument against utilitarian bases for liability (Gorsuch uses Richard Posner's discussion of spring gun cases such as Bird v. Holbrook and Glanville Williams's work on criminal law). A bit here:
[T]here are still other normative justifications for the special emphasis the law places on intentional conduct. One has to do with human equality. When someone intends to harm another person, Finnis encourages us to remember, “[t]he reality and fulfillment of those others is radically subjected to one’s own reality and fulfilment, or to the reality and fulfilment of some other group of persons. In intending harm, one precisely makes their loss one’s gain, or the gain of some others; one to that extent uses them up, treats them as material, as a resource.” People, no less than material, become means to another’s end. To analyze Bird v. Holbrook as the challengers to extant law would have us, we ask merely whether superior collective social consequences are produced by ruling for the plaintiff or defendant. On this account, there is nothing particularly special about the individual. Like any other input or good, it gives way whenever some competing and ostensibly more important collective social good is at stake. But it is exactly to prevent all this that the law has traditionally held, in both crime and tort, that one generally ought not choose or intend to harm another person, and that failing to observe this rule is a particularly grave wrong. This traditional rule “expresses and preserves each individual person’s…dignity…as an equal.” It recognizes that “to choose harm is the paradigmatic wrong; the exemplary instance of denial of right.” It stands as a bulwark against those who would allow the human individual to become nothing more than another commodity to be used up in aid of another’s (or others’) ends.
Neil M. Gorsuch, Intention and the Allocation of Risk, in Reason, Morality, and Law 413, 420 (John Keown and Robert P. George, eds., 2013) (citations omitted).