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, May 20, 2004

Making Clear Distinctions Between Abortion and the Death Penalty

Notre Dame philosophy professor, John O'Callaghan, rightly takes me to task for some of my recent posts, which contain an ambiguity concerning the Church's teaching on abortion and the death penalty. Here is his letter:

Dear Mike:

I don’t know what to think about the question of “illicit” and “licit” cooperation in evil and voting that you have raised on the Mirror of Justice. However, I am troubled by the analogy being drawn between the death penalty and abortion. You are by no means the only person to draw this analogy. But I think it is a fundamentally mistaken analogy, and muddies the water of the larger issue of voting that you are trying to pursue, as well as the larger question of the responsibilities of Catholics who are directly involved in the formation of public policy and law. I am by no means infallible, and so am willing to be corrected on anything that follows.

The Catholic teaching against abortion is a teaching concerning the kind of action involved, namely, that in its kind abortion is bad. According to the teaching of Veritatis Splendor, insofar as it is bad in its kind, no individual act that falls under that kind may be done. Veritatis Splendor describes three central factors in considering the goodness of a particular act, its Kind, its Circumstances, and
its Goal or End. There is a fundamental asymmetry in the evaluation of acts bad in their kind versus acts good in their kind. While a particular act good in its kind can be rendered bad in particular by circumstances or goals, an act bad in its kind cannot be rendered good in particular by its circumstances or goals. The Pope gives acts of torture as one example of acts bad in their kind. No particular circumstances or goals can make a particular act of torture good, because it is bad in its kind. On the other hand, while marital intercourse is good in its kind, a particular act can be bad because done before an audience, for example.

Considering the two other categories of moral evaluation that the Pope described in Veritatis Splendor, Circumstances and Goal or End, the point of recognizing that abortion is bad in its kind is that no circumstances and no goals can ever justify a particular act of abortion and render it a good act despite its being bad in kind. Because it is a teaching about the very nature of the act, Catholics are obliged to maintain it as true as falling under the authority of the Church and the Pope to teach on matters of faith and morals, and despite the fact that the Church maintains that it can be known as a deliverance of the natural law.

On the other hand, the Pope’s recent teaching in Evangelium Vitae, reaffirmed in the Catechism, on the death penalty is not of that order. Insofar as he recognizes that the death penalty may be used in what he judges to be extreme circumstances to protect society, he is making a judgment about circumstances and goals or ends. But given the threefold analysis in Veritatis Splendor of Kind, Circumstance, and Goal or End, that judgment of circumstances and goals or ends implies that the death penalty is good in its kind, since being good in its kind is a necessary condition for any particular act to be good in a particular set of circumstances and for particular goals. No circumstances and no ends can make good an act that is not good in its kind. In fact, the Pope reaffirms this traditional teaching of the Church on the death penalty when he writes that the primary function of the death penalty is punishment, not self-defense. Self-defense, a good goal, cannot make just an act that is unjust as punishment.

Part of the confusion that is bred by most politicians and others constantly drawing political analogies between Church teaching on abortion and Church teaching on the death penalty is the failure to recognize this reaffirmation of the traditional teaching. The Pope is not saying, thank God, that “the death penalty is an evil means that one may do in extreme circumstances in order to achieve some good end.” Strange as it sounds in the present rhetorical climate of the West, he is saying that the death penalty is a just means of punishment that one should refrain from using because of the bad circumstances in which and bad goals for which it would be applied in our Culture of Death.

But then the question is, what is the nature of the teaching, and what are the responsibilities of Catholics towards it? It is prudential counsel about the application of a general moral norm of punishment to particular circumstances and political goals. The crucial feature for faithful Catholics is that while, as an expression of their virtue of faith, they should pay particular and special attention to such counsel from the Pope, it is not the kind of judgment that the virtue of faith dictates they must adhere to as binding.

Insofar as the application of the death penalty requires a judgment of prudence, the question is with whom does the authority to make the prudential judgment reside? In most cases, the authority to make that prudential judgment does not reside with the Pope. According to the Pope in Evangelium Vitae and reaffirmed in the Catechism it lies with the person who holds the executive power to care for the common good of a particular political community. The Pope’s prudential counsel is no substitute for the executive’s prudential judgment. And, a central feature of prudential counsel, whether it comes from me or from the Pope, is that it cannot bind beforehand a prudential judgment. Because he is the Pope Catholics are bound to give his prudential counsel more consideration and respect than the prudential counsel of pretty much everyone else. But he does not have the authority to make the prudential judgment that is within my sphere of authority. The reason he doesn’t has to do with the very nature of prudence. The authority to make a prudential judgment rests with the one or one’s who have the power and responsibility to carry out or refrain from the proposed good act. And in the case of the death penalty the Pope lacks that power. Were he to claim it, he would violate, among other things, the teaching of the Second Vatican Council on the dignity and responsibility of lay persons acting in the world.

There is a logical point here as well. As statements, counsels of prudence themselves can only be of general logical form. They cannot be statements specifying exact particulars, since as counsels of prudence they precede any possible particular circumstances to which they would be applied, and thus a fortiori the range of possible particular circumstances do not exist and cannot be precisely specified to every “jot and tittle.” Newman made this point defending the Doctrine of Papal Infallibility in his Letter to the Duke of Norfolk against Gladstone’s charge that English Catholics could no longer be considered faithful citizens of the throne because in all their actions they were now under the command of a foreign potentate. “Plus ca change…”

Evidence that the Pope intends his teaching to be taken to be prudential counsel is found in the encyclical Evangelium Vitae itself in the mode of expression given to it. Lumen Gentium #25 (I think), speaking of the “obsequium” due to papal teaching indicates that the level and range due such will be evident from the particular character and mode of expression of the teachings in question. While the Pope expressed his statements on both abortion and euthanasia by prefacing them with, if memory serves, “I as Peter, and in consultation with the bishops throughout the world, reaffirm the constant and universal teaching of the Church that…,” he did not preface his statement on the death penalty that way. Instead, he prefaced it with, if memory serves, the claim that “there is a general consensus forming within the Church and within society at large that…” He does not claim the “authority of Peter” as he did for abortion and euthanasia. Even if one in fact agrees with the teaching, one is not bound to do so as a matter of faith about a forming “general consensus within the Church and society at large.” The latter is little more than an empirical sociological generalization that may prove empirically false. Indeed in the United States there is very good evidence that it is false. As an empirical claim one has to extend the boundaries of society fairly broadly, and yet be fairly selective in excluding certain societies, to make it true for the most part.

In the end the analogy you draw muddies the waters because it implicitly misrepresents the nature of the teaching about the death penalty, and may confuse others about how to consider a candidate’s position on the death penalty in deciding whether to vote for him or her. I agree with the Pope’s teaching concerning the death penalty as expressed in Evangelium Vitae. I do not do so on the basis of a questionable empirical sociological claim. It came as no surprise to me, as I recognized it to be what I was raised to think about the death penalty, by my parents 25 years prior to the appearance of the encyclical, and which I continue to hold to this day. I was raised to think so even if the “consensus” of the entire world was against my holding it. I wholeheartedly support it, and urge my fellow Catholics to do so as well. But we should oppose its use for the right reasons. Given what that teaching is, it does not pose an obstacle for me to vote for a candidate who favors the death penalty as a form of punishment, since that is what the Church teaches is its good. I may judge that this or that particular candidate has been particularly vicious in the circumstances of his exercise of that punishment, or I may judge that the goals for which he or she exercises it are base, and these judgments may give me prudential reasons to vote against him or her. I may even judge that given corrupt circumstances and given the corruption of social and political goals, the death penalty should be entirely outlawed. But as I see it, a candidate’s simple support for the death penalty as a kind of punishment is not inconsistent with, but, rather, consistent with Catholic teaching on it. Political support for abortion is quite different as it involves the political support for the act of killing innocent human beings, a kind of act that is intrinsically bad, that is, bad in its kind.

As Catholics we do not want to get into bed with those who think the death penalty is unjust or evil and yet think it can be done for suitably expedient reasons. Those are the same types of people who think one can torture others to get useful information in extreme situations. They are also akin to those politicians who are “personally opposed to abortion,” i.e., think that it is wrong, and yet think that it may be done for a good enough reason. On the contrary, it is my understanding of Catholic teaching on the death penalty that it is an act good in its kind that we may and perhaps now should refrain from. One may not do evil, but one may tolerate it to avoid a greater evil. Support for a candidate in favor of the death penalty does not as such involve the toleration of evil. Support for a candidate in favor of abortion does. The burden of proof is upon the one who urges us to tolerate evil.



May 20, 2004 in Scaperlanda, Mike | Permalink | TrackBack (0)

US Cardinal Denounces US Moral Failure in Iraq

Given our discussions about the Church's positions on various issues, and what those positions might mean for the political choices of lay Catholics, I thought fellow bloggers and others might be interested in this link to recent comments by Cardinal Stafford in Rome.


May 20, 2004 | Permalink | TrackBack (0)

Wednesday, May 19, 2004

Subsidiarity and a localized approach to religious liberty

I've spent a good deal of time exploring subsidiarity's call for localized empowerment when it comes to addressing social problems, but I've been forced to think about subsidiarity in a new way by an important article on religious liberty in the current issue of the Harvard Law Review. Rich Schragger's The Role of the Local in the Doctrine and Discourse of Religious Liberty, 117 Harv. L. Rev. 1810 (April 2004), argues that "the chief threat to religious liberty" is "the exercise of centralized power generally, either to benefit religion as a class or to burden it," and that therefore courts' religion clause jurisprudence should be more skeptical of federal statutes that impact religion than similar local statutes. Schragger explains:

[L]ocal government -- and more generally the decentralization of power -- is a robust structural component of religious liberty. First, the dispersal of political authority prevents the amassing of power to benefit or burden religion in any one institution, thus guarding against governmental overreaching. Second, the dispersal of political authority gives local governments the ability to serve as counterweights to private religious power, thus preventing religious overreaching.

I've always thought of subsidiarity in terms of the dispersal of power, but never in terms of power to define individual rights. Schragger does not frame his argument as a function of subsidiarity (although he does cite an earlier article of mine on subsidiarity as support), but the implications are striking. Given that subsidiarity does not lump all forms of government power together as oppressive -- i.e., there's a big difference between a federal agency taking over a particular function for the entire nation and the local village board taking over the function -- we should be more comfortable with local government action. Does our relatively greater level of comfort with local government not extend to the area of individual liberty? If it doesn't, have we bought into the bright-line hyper-individualism that distinguishes many folks who lack the remotest interest in furthering subsidiarity? Are we simply being self-serving and carving out religious liberty from other individual rights?

One area where subsidiarity has arguably already extended to debates over rights is abortion. We seem more comfortable with local government action when it comes to abortion rights, as we'd rather let states settle the issue (see my note, Religion and Roe: The Politics of Exclusion, 108 Harv. L. Rev. 495 (1994)), but maybe that's just because it's preferable to the current Court-imposed alternative, not out of loyalty to any broader structural principle. The question thus remains: if we want authority in this country to be dispersed broadly, are we being inconsistent when we call for uniform standards of religious liberty to be applied regardless of the government actor at issue? I haven't reached an answer, but I highly recommend Schragger's article for anyone interested in the question.


May 19, 2004 in Vischer, Rob | Permalink | TrackBack (0)

A Guide for Participation in Democracy?

From our previous postings on the Catholic voter and from e-mail correspondence with blog readers it is becoming clear to me that Bishop Sheridan and Archbishop Valzny do not go far enough in developing the principles upon which they base their divergent conclusions.

To Bishop Sheridan, one might reasonably ask: If a well formed conscience would forbid me from voting for a pro-choice candidate, then what about a pro-death penalty candidate, at least where the candidate advocates the death penalty in cases that clearly contravene Church teaching? If not, please explain to me the difference. Why is one case an illicit cooperation with evil while the other case is licit? And, does moral theology require me to sit out of an election if each of the candidates holds positions against the moral law? Or, is sitting out itself an act of cooperating with evil? If I should participate, how do I navigate between candidates each of whom has morally flawed positions?

To Archbishop Vlazny, one might reasonable ask: Isn’t abortion different from questions of war and peace, human rights and economic justice. The Church teaches that formulating policy with respect to the latter require prudential judgment and that a range of options are legitimate. With respect to abortion, however, no such discretionary leeway exists. Therefore, what is the justification for putting these issues seemingly on the same plane when making a voting decision? Isn’t abortion different from these other questions in another way? The right to life is the first and most fundamental human right and it is the state’s duty to protect the most defenseless and innocent of all human life. Therefore, shouldn’t the abortion issue trump these other issues?

What is needed at a practical level, IMHO, is a Catholic voter’s guide(s) (plural because of the debate that will ensue) that goes beyond the issues and contains a theoretical account of the difference between immediate and mediate/ illicit and licit material cooperation with evil in the political life of the citizen. In this way, the Catholic voter can develop a more nuanced and sophisticated approach to voting that will help them make voting decisions when faced with candidates who all have (at least in the eyes of the voter) morally flawed positions.

An excellent recent guide is the Congregation for the Doctrine of Faith's Doctrinal Note on Some Questions Regarding The Participation of Catholics in the Political Life. Does anyone know of any other well developed resources? Although this might fit more properly within the province of moral theology and philosophy, it seems to me that this is also the proper subject for the development of Catholic legal (and political) theory.

May 19, 2004 in Scaperlanda, Mike | Permalink | TrackBack (0)

Tuesday, May 18, 2004

A Reader's Practical Tips for Engaging in the Political Process

Blog reader Dwight Metcalfe offers a practical suggestion to Catholic (and other Christian voters) who are contemplating voting for pro-choice candidates. In response to Archbishop Vlazny, Dwight says:

"Candidates themselves, not their handlers, need to know, "But for your stance on abortion, I would be voting for you. Instead, I'm a potential vote against you"! Nothing else need be said.

"If more believers would take the trouble to attend local political meetings and 'press the flesh' of the candidates, as it were, relaying this type of message - the faster candidates could see the real people, rather than the 'polls'."

May 18, 2004 in Scaperlanda, Mike | Permalink | TrackBack (0)

The Sanctity of Associations: The Corporation and Individualism in American Law

I am reading a fascinating law-review article by Professor Liam S. O'Melinn, of Ohio Northern University's law school. (The citation is 37 San Diego L. Rev. 101 (2000), if the link does not work).

The paper, "The Sanctity of Association: The Corporation and Individualism in American Law," takes as its point of departure Professor Glendon's critique of American "rights talk," and contends that the "America is too individualistic" critique tends to overlook "the group that the United States has traditionally championed: The corporation. If anything, American jurisprudence is hyper-corporate rather than hyper-individualistic." Among other things, O'Melinn proposes to show that "modern cases that are often thought to stand for expressions of individual rights [are] actually protective of group rights."

I am not yet finished with the paper, but I am very interested so far, and expect that some of my colleagues would be, too. I'd particularly welcome Steve's reaction and, in light of the themes developed in his forced-heirship paper, Vince's.


May 18, 2004 | Permalink | TrackBack (0)

Monday, May 17, 2004

20 Questions for Bainbridge

Our colleague Stephen Bainbridge is the subject of Crescat Sententia's "20 Questions" feature. Several of the questions concern Mirror of Justice's mission and subject matter(s).


May 17, 2004 | Permalink | TrackBack (0)

Bishops, Politics, and Excommunication

The discussion of the reception of communion by pro-choice Catholic politicians might be enhanced by a look back at another time when American Catholics faced excommunication for taking public stances contrary to the Church's explicit teaching. From the 1940s through the early 1960s, many Catholics in the South and in the Border States were threatened with excommunication for fighting the racial integration of Catholic schools and churches, or for actively supporting racial segregation. In the early 1960s, the archbishop of New Orleans excommunicated a number of Louisiana Catholics who were avowed segregationists. Among them was one of the state's most powerful politicians, Leander Perez.

The Church led many American Catholics kicking and screaming toward integration (and not just in the South). Interestingly, Catholic lay people were not threatened with excommunication for supporting segregationist politicians (indeed, the American Catholic Church accommodated itself to segregation throughout the United States from the Civil War well into the 20th century despite vocal displeasure from Rome. I think a fair number of Catholics also supported George Wallace). Excommunication was directed at prominent leaders of movements that actively campaigned against integration or in favor of segregation. In general, the laity were told repeatedly that segregation was immoral, and the Church simply stopped catering to the social practice.

In 1948, Cardinal O'Boyle of Washington, DC simply announced that the Catholic schools would be integrated in the next academic year. And so they were. Where there was resistance the Cardinal made personal appearances and said that he would not tolerate any dissent. Some who were not ready for integration left the Church. Many others gave integration a try out of respect for their bishop and love for thier church.

American bishops do not have the same moral authority in this country that they had prior to Vatican II, but it is interesting to note that when they did, they were very selective in their use of the threat of excommunication. With that in mind, it seems curious that some bishops think that a person who simply supports a candidate who is pro-choice should not receive communion. The Church has also been quite explicit in its condemnation of the Iraq war, and a substantial body of Church teaching finds preemptive war immoral. Given what has been going on in Iraq (and Abu-Ghraib is just part of the story), can a Catholic vote for George Bush? Should Catholics who are active supporters of a war the Church opposes be excommunicated? It seems to me that the Bishops would accomplish more is by addressing their concerns directly to active public supporters of positions that are contrary to central Church teachings. Excommunication may become necessary in some cases, but I should think that the Bishops would want to avoid any appearance of political bias when taking that step.


May 17, 2004 | Permalink | TrackBack (3)

Sunday, May 16, 2004

Archbishop Vlazny on Catholic Voters and Politicians

Blog reader Mark Schneider has provided us with a link to Portland, Oregon Archbishop Vlazny's statement on the reception of communion by pro-choice candidates and those who vote for them. Archbishop Vlazny says that pro-choice candidates and those who vote for them because of their pro-choice views should refrain from receiving the Eucharist. In contrast, the Archbishop says that those who vote for a pro-choice candidate despite the candidate's pro-choice position should not refrain. He says:

"Should Catholics who choose to vote for pro-choice politicians refrain from reception of the Holy Communion? If they vote for them precisely because they are pro-choice, I believe they too should refrain from the reception of Holy Communion because they are not in communion with the Church on a serious matter. But if they are voting for that particular politician because, in their judgment, other candidates fail significantly in some matters of great importance, for example, war and peace, human rights and economic justice, then there is no evident stance of opposition to Church teaching and reception of Holy Communion seems both appropriate and beneficial."

He goes on to say that those who vote for a pro-choice candidate should make their disagreement with the politicians stand on abortion abundantly clear.

Voting for a pro-choice candidate is clearly a form of cooperation with the evil of abortion. My question to readers and co-bloggers (especially those more philosophically and theologically grounded than I), is voting for a pro-choice candidate (but for other good reasons) licit or illicit cooperation with evil? Why? Bishop Sheridan appears to have concluded that it is illicit while Archbishop Vlazny appears to have concluded that it might be licit.

I look forward to learning!


May 16, 2004 in Scaperlanda, Mike | Permalink | TrackBack (2)

Saturday, May 15, 2004

Bishop Sheridan's Pastoral Letter

Here is a link to Bishop Sheridan's "Pastoral Letter ... on the Duties of Catholic Politicians and Voters"

May 15, 2004 in Scaperlanda, Mike | Permalink | TrackBack (0)