Mirror of Justice

Human dignity and the lawyer's role

Over at Legal Ethics Forum, San Diego law prof David McGowan has kicked off an interesting and provocative discussion on the meaning of human dignity (or lack thereof) and the role of moral considerations in the attorney-client relationship.

UPDATE: I responded here; I welcome comments.

"Who'll Keep the Faith-Based Initiative?"

Jim Towey, former head of the White House Office for Faith-Based and Community Initiatives, asks that question about the two presidential candidates in today's Washington Post.  He begins by noting the opposition to the program:

Liberals who measure compassion only by tax dollars spent say it hasn't gone far enough, while zealots about church-state separation say that it goes too far and should be shut down. But this program is transforming lives. And in an election campaign lacking for new ideas, this one is worth saving.

As a defender (in scholarship and in litigation) of the faith-based initiative, I agree with Mr. Towey that it has opened the door for many private organizations doing good work with the needy to cooperate with government without having to give up their religious character.  (If it focuses on faith-based organizations, that's because they were discriminated against in the past and rules need to be adopted against such discrimination.)  But it's a bit irritating to see the paragraph above refer only to "liberals" and separationist "zealots" as dangers to the program.  In fact, we have considerable evidence that there were many opponents within the Bush administration itself -- those concerned above all with cutting social spending and, one may reasonably infer, interested in maintaining the program primarily for its political value -- and that they were successful in limiting its funding.  That evidence comes not only from the program's former deputy director David Kuo, but from its enthusiastic congressional supporters such as Rep. Mark Souder (Rick Santorum also fought for more funding).

In that light, it seems somewhat partisan to list as opponents of the plan only separationists along with certain "liberals" who want it to do more.  But it's good that Mr. Towey ultimately asks McCain as well as Obama whether they''ll really be committed to cooperating with private (including religious) organizations to reduce poverty, especially since McCain has put such an emphasis on restricting discretionary domestic spending.  It's just that he might also ask if either of them will put more resources into that cooperative effort.

A Method of Study

Recently I was reading "Living City," a magazine published by the Focolare Movement.  (Thanks Amy!)  The special issue was dedicated to the life of that movement's founder, Chiara Lubich.  One thing that struck me was Chiara's method of study.  "Spring, 1944, Chiara was tutoring her friend Doriana in preparation for a philosophy exam.  Doriana had described it:  'Chiara's method was to love each individual author by attempting to understand and follow their line of thought.'" 

Response to Michael S.'s Response

This is when I think a comments function might make sense for MOJ.  I don't want to leave Michael's question hanging out there, but I'm not sure this deserves an entire post.  That said, in response to Michael's response:  you are not missing anything.  Your response answers my question.  I take it, then, that your position is that, in light of the history particularly grave injustices in a given society, laws banning those injustices are necessary (presumably for expressive purposes) even when the practice itself has largely disappeared.  (I think slavery is a reasonable analogy here, although I think the two cases are substantively quite different.)  I think that it is a position that has some merit and does not obliterate the distinction between morality and law.

Churches and Sprawl

From the Toronto Star:

Fast-growing churches, frustrated with the slow pace of municipal planning, often find themselves pushed into setting up shop in rural areas on the edge of town, where they end up contributing to suburban sprawl, a Ryerson University study has found.

"They rapidly gobble up prime agricultural land, adding to the sprawl and causing burden on the city's infrastructure," says the study by Sandeep Kumar Agrawal, an associate professor of urban planning.

Once the new church is built, the parishioners soon follow, and housing springs up around the building – determining the character of the new subdivision.

Would it make sense for the Church to impose a moratorium on opening new suburban parishes in an effort to avoid encouraging Catholics to move out to places where they are guaranteed to spend a lot of time driving?  My guess is that it wouldn't have much of an impact, even on Catholics.  That is, I suspect that, at least for Catholics, parishes are following parishioners, and not the other way around.

Chastity and the Enchantment of Life

Ron Rolheiser writes (click for the full essay):

… Today, in Western culture, chastity is generally seen as naiveté, timidity, frigidity, lack of nerve, being uptight, as an innocence to be pitied. … At best, it is seen as an impractical ideal, at worst, as something to be pitied or ridiculed. This is not progress. Why?

Because, in the end, chastity is partially the key to everything: joy, family, love, community, and even the full enjoyment of sex. When a society is chaste, family can happen; when a family is chaste, it will find joy in its everyday life; when lovers are chaste, they will experience the full ecstasy of sex; when a church is chaste, it will experience the Holy Spirit. The reverse is also true. Chaos, joylessness, division, erotic numbness, and hardness of heart are generally a fault in chastity. To say this, though, implies a certain understanding of chastity. What is chastity?

Generally we identify chastity with a certain sexual reticence or simply with celibacy. This is too narrow. To be chaste does not mean that one does not have sex, nor does it imply that one is a prude. My parents were two of the most chaste persons I ever met, yet they obviously enjoyed sex, of which a large family and a warm vivacious bond between them gave ample evidence.

Chastity, at its root, is not primarily even a sexual concept, though given the power and urgency of sex, faults in chastity often are within the area of sexuality. Chastity has to do with all experiencing. It is about the appropriateness and maturity of any experience, sex included. Chastity is reverence and all sin, in the end, is irreverence.

To be chaste is to experience people, things, places, entertainment, the phases of one’s life, life’s opportunities, and sex, in a way that does not violate them or ourselves. Chastity means to experience things reverently, so that the experience of them leaves both them and ourselves more, not less, integrated. Thus, I am chaste when I relate to others in a way that does not violate their moral, psychological, emotional, sexual, or aesthetic contours. I am chaste when I do not let irreverence or impatience ruin what is gift, when I let life, others, and sex, be fully what they are. Conversely, I lack chastity when I transgress boundaries prematurely or irreverently, or when I violate anything so as to somehow reduce its full gift.

Chastity is respect and reverence. The fruits of that are integration, gratitude, and joy. Lack of chastity is irreverence. The fruits of that are disintegration, bitterness, and cynicism (all infallible signs of the lack of chastity).

Allan Bloom, the famed educator, speaking purely as a secular observer, without any religious angle whatsoever, already twenty years ago affirmed that lack of chastity in our culture, particularly among the young, is perhaps the deepest cause of unhappiness and flatness in our lives. He submits that lack of chastity has, paradoxically, robbed us of deep passion and rendered us erotically lame. We have, he asserts, experienced too much, too soon. We have sophisticated ourselves into boredom and unhappiness. We have been to too many places and done too many things before we were ready for them. The result is that we have stripped life, romance, love, and sex of their mysteries and their capacity to enchant us. We have, through lack of chastity, de-sacralized our experience and robbed it of its capacity to enchant the soul. …

Wise words, it seems to me.  HT:  Maria Ruiz Scaperlanda

A Response to Eduardo

Thank you Eduardo for your response to my post.  If I understand your question correctly, my answer is "no."  If no one in our mythical society had ever contemplated abortion, there would be no need for the law to condemn the practice.  Similarly, if the culture contemplated but rejected abortion such that no one or nearly no one in the culture engaged in the intentional killing of unborn children, there would, in my opinion, be no need for a legal condemnation.  Does this answer the question, or have I missed something?

A Law Permitting Abortion

In response to Michael S's question below, I want to ask another question.  Is a law permitting abortion a law or the absence of law?  That is, is the failure to prohibit abortion the same as a law that affirmatively ratifies or mandates an unjust act?  Would a society that had no slavery (and had never had any slavery) need a law explicitly prohibiting slavery to avoid injustice?  I know this is not the situation with abortion (or slavery) in our society, but I took Michael to be endorsing a general, conceptual point about laws that fail to prohibit abortion.  So the parallel hypothetical would, I suppose, be a society that had never had an issue with women seeking abortions and therefore never sought to legally prohibit the practice. 

I remember a while back that Steve B. distinguished between morality and law to argue against the mandatory nature of minimum wage laws.  I think his basic distinction was correct, although I disagreed with his characterization of the hierarchy's position on the need for minimum wage laws in light of certain uncontroversial facts about the way the U.S. has organized its economic system.  Would Michael S. reject Steve B.'s minimum wage distinction or is there some bedrock difference between the injustice of abortion and the injustice of paying a substandard wage that justifies a different analysis of the relationship between law and morality for the latter?  I know I've raised questions like this before, but I've never really been able to get the conversation off the ground.

Renting versus Owning

Earlier this week, Krugman had an op-ed criticizing the longstanding policy of encouraging homeownerhip.  His bottom line was that homeownership is not for everyone, and that government shouldn't be trying to push as many households as it can into that form of tenure:

There are, of course, advantages to homeownership — and yes, my wife and I do own our home. But homeownership isn’t for everyone. In fact, given the way U.S. policy favors owning over renting, you can make a good case that America already has too many homeowners.

Krugman mentions three costs of homeownership:  financial risk, immobility, and long commutes.  The third is more a product of land-use policies as homeownership, since there is no reason, apart from poor land use laws, for homeownership to be more affordable  (in absolute terms) in the farthest-flung suburbs.  Liberalize zoning regulations within urban cores, and that problem largely disappears, particularly in the present environment of high gasoline costs.  The second "cost" (immobility) is actually both a cost and a benefit.  As I and others have argued, the immobility of homeownership stabilizes neighborhood communities by increasing the cost of exit.  And the stability of communities of homeowners gives them some unique and attractive characteristics. There is obviously a tradeoff involved in assuming such immobility, but it's not clear that it's a net negative, even for low-income homeowners. 

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Two threads: Kennedy v. Louisiana and Senator Obama’s Catholic Advisory Group

Today, I should like to bring together two recent threads of discussion that have been appearing over the last few days, i.e., Senator Obama’s Catholic Advisory Group and today’s Supreme Court decision in Kennedy v. Louisiana. I shall begin with the second first.

In his dissent, Justice Alito in the Kennedy case begins his dissent by stating:

The Court today holds that the Eighth Amendment categorically prohibits the imposition of the death penalty for the crime of raping a child. This is so, according to the Court, no matter how young the child, no matter how many times the child is raped, no matter how many chil­dren the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpe­trator’s prior criminal record may be. The Court provides two reasons for this sweeping conclusion: First, the Court claims to have identified “a national consensus” that the death penalty is never acceptable for the rape of a child; second, the Court concludes, based on its “independent judgment,” that imposing the death penalty for child rape is inconsistent with “‘the evolving standards of decency that mark the progress of a maturing society.’” (reference omitted). Because neither of these justifi­cations is sound, I respectfully dissent.

I have taken the small liberty of altering slightly Justice Alito’s opening paragraph of his dissenting opinion and substituted references to “rape” and “child rape” or “the raping of a child” with “abortion” or a word or phrase that addresses abortion. The text now reads:

The Court today holds that the Eighth Amendment categorically prohibits the imposition of the death penalty for the crime of abortion. This is so, according to the Court, no matter how young the child, no matter how many times to abort the child are attempted, no matter how many chil­dren the perpetrator aborts, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpe­trator’s prior criminal record may be. The Court provides two reasons for this sweeping conclusion: First, the Court claims to have identified “a national consensus” that the death penalty is never acceptable for abortion; second, the Court concludes, based on its “independent judgment,” that imposing the death penalty for abortion is inconsistent with “‘the evolving standards of decency that mark the progress of a maturing society.’” (reference omitted). Because neither of these justifi­cations is sound, I respectfully dissent.

I do not know if Justice Alito would approve of my taking some small liberty with the opening paragraph of his dissent. But as law teachers, I think we often exercise the license of professorial prerogative to make some point relevant to the law, the teaching of it, and the learning of it. As I read Kennedy v. Louisiana, the five-justice majority strives to make the distinction between the taking of life, i.e., murder, and the raping of a child which, in spite of the enormous damage, does not conclude with the taking of the physical life. The other takings of aspects of life, while acknowledged by the majority, just don’t seem to count for the imposition of the death penalty. All right, the majority of the Court has spoken.

But let us consider Justice Alito’s remarks more carefully. By my substituting abortion for rape, do we not come to the same thing—the taking of a physical life of another that may be protected by the law, regardless of the penalty? I think so. Justice Alito is making an important point regarding the gravity of child rape. But, with his language, we can see that any taking of innocent human life is the most grievous of offenses. So, why might murder be a crime that could deserve the death penalty but abortion is a constitutional “right”? Something doesn’t add up here, and that is why I think Justice Alito and three other members of the Court are on to something.

This brings me to my first point which is treated in the second place, Senator Obama’s Catholic Advisory Group. I wonder if the distinguished members of this panel, some who hold important public office and some who hold prestigious positions in the community that include academic posts of distinction, will advocate that the Senator reconsider his magnanimous support of abortion “rights”? Surely, as faithful Catholics, they, the members of this advisory group, will recognize that the most fundamental of human rights is the right to live so that in turn one has the ability to take advantage of all that rest that life has to offer. In spite of the complexity of issues and the difficulties of dealing with them, as Amy implies, if the members of the Catholic Advisory Group do not understand this fundamental point, then I fear their ability to help the common good, let alone CST or CLT, will be lost. Perhaps, like Justice Alito, they, too, should consider dissenting not from the candidate but from the views he holds so dearly but so wrongly on this critical issue not only of this election but of this age.

RJA sj