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.

Monday, March 28, 2005

Descartes, Aristotle, and Schiavo

This essay, from Sunday's New York Times, makes for interesting reading.  The essay, "Did Descartes Doom Terri Schiavo," opens with this:

In the parade of faces talking about Terri Schiavo last week, two notable authorities were missing: Aristotle and Descartes. Yet their legacy was there.

Beneath the political maneuvering and legal wrangling, the case re-enacted a clash of ideals that has run through the history of Western thought. And in a way, it's the essential question that has been asked by philosophers since the dawn of human civilization. Is every human life precious, no matter how disabled? Or do human beings have the right to self-determination and to decide when life has value?


March 28, 2005 | Permalink | TrackBack (0)

Skeletons in the Closet

As someone new to the Catholic tradition, I am constantly discovering important truths in my journey.  Occasionally, however, I stumble across a couple of skeletons rattling in the closet.  Recently I read the 1832 encylical Mirari vos, in which Pope Gregory XVI lamented the "absurd and erroneous proposition which claims that liberty of conscience must be maintained for everyone," and the 1864 Syllabus of Errors, listing among "the principal errors of our times" the beliefs that "every man is free to embrace and profess that religion which, guided by the light of reason, he shall consider true," and that "it is no longer expedient that the Catholic religion should be held as the only religion of the State, to the exclusion of all other forms of worship." 

The Church's stance changed dramatically through the important work of folks like John Courtney Murray.  Murray's role in bringing the Church around to recognize a fundamental implication of human dignity, however, raises important questions about our Catholic legal theory project.  Should Catholic legal theorists be focused on defending the real-world implications of the moral anthropology as articulated by the Church, or should we also challenge the Church's teaching on issues where we, as individuals, believe it falls short of the truth claims embodied in the moral anthropology?  If the Church was mistaken about religious liberty, is the Church mistaken about some other aspect of the social order today?

One topic that will immediately come to mind, of course, is same-sex marriage and civil unions.  Charles Curran, for example, has written a new book on the moral theology of Pope John Paul II (HT: Open Book):

The methodological gap in Pope John Paul II's moral theology arises, Father Curran says, when his willingness to accept the capacity of the Church to learn truth in social-justice teaching is abandoned when the focus is personal and sexual morality. "In the social teaching," he says, "you have accepted much more a reality of historical development. Things develop and change over history and over time. You have also tended to emphasize much more the person as the center of things."

The pope "uses what I call a relationality model. It sees the human person in the multiple relationships with God, neighbor, world, and self," says Father Curran. "Now if you look at sexual ethics, the emphasis is on the eternal, the immutable, and the unchanging. What has always been true."

My concern here is not so much with the merits of the sexuality arguments, but with our disposition toward them.  As Catholic legal theorists, do we approach them strictly on their substance, or is there a presumption that we accept and defend the Church's position?  Is the presumption rebuttable?  In other words, are we to function strictly as Apostles, spreading the Church's Good News to the world?  Or are we to act as the Old Testament prophets, speaking hard truths to authority, including the Church itself?  Or are we to do both, and if so, how?


March 28, 2005 in Vischer, Rob | Permalink | TrackBack (1)

Meaning of "Pro-Life"

Rick calls the criticism of the lack of consistency of pro-lifers contained in an E.J. Dionne op-ed column a cheap shot.  I agree with Rick's response to the question "[w]hat is the point of standing up for life in an individual case but not confronting the cost of choosing life for all who are threatened within the health care system or by their lack of access to it?"  Rick is clearly correct that it is neither pointless nor hypocritical “to oppose, and to try to stop, intentional homicides of disabled people, just because one is not also lobbying for medical-insurance reform.”

However, it is also the case that it is difficult to persuade others to buy into the ethic of sanctity of life if one is not consistent.  And Dionne’s criticism is particularly aimed at lawmakers.  Can one argue that there is a distinction between the imposing the death penalty on a guilty person and causing an innocent disabled person’s death?  Of course.  Can one distinguish between a ban on assault weapons and cessation of artificial nutrition and hydration?  Assuredly.   But, leaving aside the question whether Congress had any business at all getting involved in the Shiavo matter, it is difficult for people to take seriously the claims of support for the dignity of life made by Republican lawmakers who have at every turn undermined human dignity by their decisions about health care, tax policy and the like.  Moreover, even where distinctions can be defended, the more distinctions one makes, the more difficult it is to persuade those who do not already buy into a consistent ethic of life to do so.  Thus, while I disagree with the framing of Dionne's criticism, I think there is more there than a cheap shot.


March 28, 2005 in Stabile, Susan | Permalink | TrackBack (0)

Stem Cell Research Revisited

A while back, I indicated on this blog that I was sympathetic to the position of Gene Outka, a Christian ethicist at Yale, on stem cell research.  (For my earlier posting, and a quotation of Outka's position, click here.)  A bill that affirms Outka's position--a bill proposed by some Republicans--will be considered in Congress.  This report is from the this morning's online Chronicle of Higher Education:

U.S. House to Vote on a Bill That Would Loosen Bush's Restrictions on Embryonic-Stem-Cell Research



Republican leaders in the U.S. House of Representatives have agreed to allow a vote on legislation that would liberalize President Bush's policy on stem-cell research, the bill's chief sponsor confirmed on Friday.

The vote is expected to occur in a few months. The legislation, if enacted, would allow researchers to use federal funds to study stem cells derived from embryos that were donated by fertility-clinic patients. The bill would not allow the use of federal funds for research on stem cells from embryos created through cloning.

Rep. Michael N. Castle, the Delaware Republican who originally introduced the Stem Cell Research Enhancement Act (HR 810) in 2004, said on Friday that he was "pleasantly surprised" that House leaders had approved his request for a vote. "I didn't necessarily expect this to happen," he said.

The Republican leaders, including the House speaker, J. Dennis Hastert of Illinois, are known for their strong opposition to abortion, an issue to which stem-cell research has been tied. Opponents of the research say that embryos are human lives and that destroying them to obtain the stem cells is tantamount to murder.

While the House leaders could still alter Mr. Castle's bill, or replace it on the legislative calendar with another stem-cell measure, their agreement on a vote marks a shift within the Republican Party, which only last August adopted a platform endorsing the existing restrictions on federal support for the research. Under the current policy, federal funds can be used only for research on colonies, or lines, of embryonic stem cells that existed in August 2001, when Mr. Bush announced the policy.

[To read the whole report, click here.]

March 28, 2005 in Perry, Michael | Permalink | TrackBack (0)

Sunday, March 27, 2005

Further on Punishment and "Desert"

Thanks to Rick Garnett for calling our attention to some recent comments on the issue of punishment and desert by Notre Dame philosopher John O'Callaghan (here)--comments prompted by some questions and thoughts that Rob Vischer, Rick, and I had posted to this blog.

O'Callaghan makes the sensible point that even if it is the case that A deserves a punishment, in the sense that under ordinary circumstances we would do no wrong to impose that punishment on A, it might also be the case that under the actual circumstances we ought not to impose that punishment on A.   For example, it might be the case that to impose the punishment in question on A would work a devastating harm on the members of his family.  In that case, we could say that although A deserves the punishment, we ought not to impose it on him, not because A doesn't deserve it, but because we ought not to treat the members of his family that way.  Again, this is a sensible point.  But it is not a point that engages what I said in an earlier posting.  Or perhaps I should say:  It is not a point that engages what I tried to say in an earlier posting.

So let me try again:  If it is the case that we should not impose--that morally we ought not to impose--a particular sort of punishment on A or on any other human being, because to do so would for us to violate the human being--any human being--on whom we imposed the punishment, then it cannot be the case that A or any other human being  deserves that punishment.  (What sort of punishment--besides torture--fits that profile?  The death penalty?)  That was my point.  And John O'Callaghan, as I read his comments, does not contend to the contrary.

But as I said before, I may be missing something.  I remain eager to be tutored.

Michael P.

March 27, 2005 in Perry, Michael | Permalink | TrackBack (0)

Saturday, March 26, 2005

Kraynak on Church-State Relations in Europe and America

An interesting interview with Robert Kraynak, author of "Christian Faith and Modern Democracy:  God and Politics in the Modern World" (link).


March 26, 2005 | Permalink | TrackBack (0)

"A Thin View of Life"?

"A Thin View of Life" is the title of yesterday's op-ed column by E.J. Dionne.  Dionne asks -- discussing, among other things, the Schiavo case, tort reform, gun control, and the death penalty -- "[w]hat does it mean to be pro-life?"  He concludes:

People who lack access to health care because they can't afford insurance often die earlier than they have to -- with absolutely no national publicity and with no members of Congress rising up at midnight to pass bills on their behalf. What is the point of standing up for life in an individual case but not confronting the cost of choosing life for all who are threatened within the health care system or by their lack of access to it?

What does it mean to be pro-life? As far as I can tell, most of those who would keep Schiavo alive favor the death penalty. Most favored allowing the assault weapons ban to expire and oppose other forms of gun control. The president makes an excellent point when he says we "ought to err on the side of life." It's a shame how rarely that principle is put into practice.

I always read, and almost always learn from, Dionne's columns.  Unfortunately, in his effort to focus the attention of political conservatives who are pro-life on other issues that, in Dionne's view, they should also care about, he misses an important point, and throws a cheap shot. 

He asks, "[w]hat is the point of standing up for life in an individual case but not confronting the cost of choosing life for all who are threatened within the health care system or by their lack of access to it?"  Well, the point, I suppose, is to witness against, and perhaps to stop, what many people believe is (at best) an assisted suicide and (at worst) the intentional killing -- wrapped in the rhetoric of "death with dignity" and autonomy -- of a disabled human being.  (To be clear:  I'm not convinced that people who believe this are right.)  And, contra Dionne, it is not pointless or hypocritical to oppose, and to try to stop, intentional homicides of disabled people, just because one is not also lobbying for medical-insurance reform.

It is a common move -- I do it too, and I probably shouldn't -- in public discourse to focus on the alleged hypocrisies and imagined inconsistencies in others' views, as a way to avoid engaging the merits of one's own.  (For example, a columnist might point out, in response to Dionne, the many glaring inconsistencies in the positions of those who today are invoking family privacy, comity, finality, and federalism in support of ending feeding and hydration for Ms. Schiavo.  But that would be a cheap shot.) 

Thus, Dionne paints a quite-imcomplete picture of the "1999 Texas Advance Directives Act signed by then-Gov. George W. Bush", suggesting that, by signing this Act, Bush undermined his ability to say today that we should "err on the side of life."  And, he asserts that "[a]s far as I can tell, most of those who would keep Schiavo alive favor the death penalty.  Most favored allowing the assault weapons ban to expire and oppose other forms of gun control."  But, even opponents of capital punishment -- and I am one -- could think that it is perfectly reasonable to distinguish between the imposition of capital punishment on those who have been convicted, under a beyond-a-reasonable-doubt standard, of particularly blameworthy homicides, and the intentional causing of an innocent diabled person's death -- whose own wishes might not be known or knowable -- by cessation of artificial nutrition and hydration.  And, that one believes the so-called assault-weapons ban was more about symbolism and fund-raising than saving lives does not make one a hypocrite for opposing what could be a case of intentional euthanasia.

I don't know what to think about the Schiavo case.  I've been horrified by some of the disgusting comments and "jokes" about disabled people that I've read, by people who purport to be progressive and compassionate.  I also recoil from charges of "judicial murder" and calls to send in the National Guard.  As I see it -- and I'd welcome help in seeing it more clearly -- the case requires us to engage (at least) three very difficult questions:  First, is it wrong to end "artificial nutrition and hydration" (ANH) in cases where the recipient is not dying and where, as I see it, the cessation of ANH looks more like "intentionally causing death" than "refusing disproportionate medical treatment"?  Second, are the recipient's wishes -- whether expressed by her or by a surrogate -- relevant to the question one?  Third, what executive and legislative steps to prevent what could be regarded as an instance of legally authorized, but still wrong, intentional causing of death are appropriate, given our justifiable commitments to the constitutional order and the rule of law?

I'm struggling with these questions.  But I am pretty confident that my views on assault weapons and tort reform have little to do with the good faith of my efforts or the merits of my conclusions.


March 26, 2005 | Permalink | TrackBack (0)

Friday, March 25, 2005

Good Friday: Whe Love Comes to Town

In reading Rick's post of Charles Peguy, I thought of a contemporary reflection on the same subject, namely, how our denial of Christ is at work in his crucifixtion.  Indeed, his life was offered up to give us a way, through grace, to overcome this denial, to overcome what we could not overcome on our own.  The passage I have in mind comes from the collaboration of B.B. King and U2 from 1989 entitled "When Love Comes to Town."  As much as we on MOJ criticize much of contemporary culture, and deservedly so, this song, at least in my mind, demonstrates that the culture we inhabit, as decadent and morbid as it is, is not without it bright points.  The last verse reads:

     I was there when they crucified my Lord

     I held the scabbard when the soldier drewn the sword

     I threw the dice when they pierced his side

     But I've seen love conquer the great divide!

May everyone on MOJ have a prayerful Good Friday and a joyful Easter . . .when love comes to town!


March 25, 2005 | Permalink | TrackBack (0)

A Good Friday thought

This is from Charles Peguy's "The Mystery of the Charity of St. Joan of Arc":

Peter’s denial, Peter’s denial.  You have nothing to say but this: Peter’s denial.  You put this forward, this denial, you say this to disguise, to hide, to excuse our own denials.  To make ourselves forget, to forget, to make ourselves forget our own denials.  In order to speak about something else.  To change the subject.  Peter denied Him three times, So what?  We’ve denied Him hundreds and thousands of times because of sin, because of the bewilderment of sin, in the denials caused by sin.  And the cock crowed.  But for us it’s the thousandth time, the hundred thousandth, the hundred thousandth time we give Him over, we abandon Him, we betray Him.


March 25, 2005 | Permalink | TrackBack (0)

Nader on the Schiavo case

Strange bedfellows?  Consumer advocate and former presidential candidate Ralph Nader issued this statement today, along with bioethics writer Wesley Smith:

"A profound injustice is being inflicted on Terri Schiavo," Nader and Smith asserted today. "Worse, this slow death by dehydration is being imposed upon her under the color of law, in proceedings in which every benefit of the doubt-and there are many doubts in this case-has been given to her death, rather than her continued life."


March 25, 2005 | Permalink | TrackBack (0)