Friday, February 20, 2009
I survived the trip down to Villanova (the trip through the Poconos was an adventure) and back (though I had to leave the conference early to beat the weather). The conference was a great success. Martha Nussbaum gave an eloquent and nuanced explication and defense of her relatively new book. The main theme of the book is to put equality at the center in interpreting the religion clauses and to discard the separation metaphor as helpful. Kent Greenawalt gave a characteristically careful, smart, and entirely fair critique and appreciation of Nussbaum’s book. Among other things he raised some questions about Nussbaum’s historical analysis especially a part of her claims about Roger Williams (the part of her book about Williams is worth its price) and his impact. Their disagreements on this were previously aired in the New York Review of Books.
Father Richard Schenck, in an erudite presentation, raised some difficult questions about Nussbaum’s plea for respect rather than toleration, arguing that she had conflated respect for the capacity to make choices with the choices that had been made. He also compared the conception of conscience in Vatican II with Nussbaum’s conception. John McGreevy argued that that Vatican II emphasized the socialization of conscience more than the individualistic form of conscience apparently endorsed by Nussbaum (I doubt she would deny the socially situated self though). McGreevy also made the interesting point that Vatican II was more focused on elaborating the notion of dignity and its relation to conscience than was Nussbaum. Roderick Hills argued that free exercise exemptions should be made by the legislature, not the judiciary (which seemed to depend on a theory of the judicial function more than a theory of the religion clauses). Jesse Choper argued that Hill’s position would shortchange the interests of the minority (putting him on Nussbaum’s side). But Choper departed from Nussbaum in his view of government display of religious symbols (no harm to liberty) and government aid to financial institutions (impairs liberty by coercive taxation). Geoff Stone spoke of illegal purpose in religion clause adjudication in connection with a discussion of gay marriage. Perhaps I misunderstood him but he seemed to say both that a law founded on a religious purpose was unconstitutional and that a law passed with fully adequate secular justifications but prompted by religious beliefs should be unconstitutional. The former seems clearly right and the latter (again I am not sure he meant it) clearly wrong. In any event, he argued that prohibitions against gay marriage had no adequate secular justifications
Clearly this was a conference with outstanding speakers marked by diverse understandings and views. And I had to miss the talks of Patrick Brennan and Rick Garnett as well as Martha Nussbaum’s response to the criticisms piled up over the day. Even missing that, it was a conference I was grateful to attend.
Thursday, February 19, 2009
Loyola law prof Samuel Pillsbury has posted a review essay, Learning from Forgiveness. Here's the abstract:
Many have argued that contemporary American criminal punishment is overly harsh and unforgiving, especially in its use of mandatory minimum penalties. But what does forgiveness have to do with the criminal law? In this essay review of two recent books on the philosophy of forgiveness, I argue that forgiveness is a form of relational responsibility, in which personal interaction between judge and judged, and the value of an ongoing human relations are central features in determining personal responsibility. This contrasts with legal responsibility, which is idealized as impersonal, rule-dictated and disinterested in personal relationships. Looking at some particular uses of mandatory life sentences in California - for juvenile murderers and third strike offenders - I suggest ways that concepts of relational responsibility, including those from forgiveness, might inform how punishment decisions are made.
This sounds like another area of law that underscores the importance and insight of Stephen Darwall's work on the second-person standpoint (as brought bear on legal theory most notably by Rob Kar). It also provides another fascinating context for exploring, as I am beginning to do, the concept of human dignity as an attribute of human relationships, not simply an intrinsic property of the human person.
Tuesday, February 17, 2009
Readers might be interested in attending Villanova Law School’s third annual Scarpa Conference on Law, Politics and Culture this Thursday, February 19, 2009, at the Connelly Center on Villanova’s main campus.
The theme of the conference is “Liberty of Conscience and Religious Equality,” and the all-star speakers include Martha Nussbaum from the University of Chicago, Patrick M. Brennan from Villanova, Jesse Choppr from Berkeley, . . . Kent Greenawalt from Columbia, John McGreevey from Notre Dame, Roderick Hills from New York University, Very Rev. Richard Schenk, OP from the Dominican School of Philosophy and Theology at the Graduate Theological Union at Berkeley, and Geoffrey Stone from the University of Chicago.
HT: First Things
Continuing legal education credit is available for attorneys, and more information can be found here (PDF).
Monday, February 16, 2009
Knowing that matters Spanish have received some considerable attention on the Mirror of Justice over the past several weeks, I would like to draw the attention of the contributors and the MOJ readership to the address given by Cardinal Tarcisio Bertone, the Vatican Secretary of State, in Spain on February 5, 2009 commemorating the sixtieth anniversary of the Universal Declaration of Human Rights.
Although the Cardinal’s address was given to a gathering of the country’s episcopal conference, one should not conclude that the intended audience was solely the episcopacy of Spain. The Secretary of State’s words have profound meaning for the world which includes those of us pursuing the development of Catholic legal theory. The Cardinal opened his address (HERE in Spanish, only) by noting that the Declaration must be considered as a “moment of fundamental importance for the development of the moral conscience of humanity.” In this regard, Cardinal Bertone specified that Catholics must be committed to the defense and promotion of the fundamental rights of the human person as they essential to the dignity of each. As I have noted elsewhere on these pages, the dignity of the human person is that which is due each—the suum cuiqe—because he or she is human—regardless of age, size, color, etc.
The address emphasizes a point long made by the Church and the Holy See that the human person needs to be at the center of concern when laws, the workings of society, the development of culture, and the advances of science are under consideration. In his endeavor to explain this, the Cardinal’s address provides nine points to consider and a conclusion.
His first point deals with the contributions of Christianity and the social teachings of the Church to the concept of human rights. While human history is replete with instances in which some denied the rights of others, it becomes evident from the Cardinal’s words that the Church was a harbinger of proclaiming these rights with the advent of modern times during the papacy of Leo XIII. Pope Leo’s work was solidified by Paul VI in 1965 and John Paul II in 1979 and 1995 when they addressed the General Assembly of the United Nations, the body that adopted and approved the Universal Declaration. In this context, the words of John Paul II in his 1995 intervention are most pertinent:
…there are indeed universal human rights, rooted in the nature of the person, rights which reflect the objective and inviolable demands of a universal moral law. These are not abstract points; rather, these rights tell us something important about the actual life of every individual and of every social group. They also remind us that we do not live in an irrational or meaningless world. On the contrary, there is a moral logic which is built into human life and which makes possible dialogue between individuals and peoples.
Most recently, Benedict XVI during his April 2008 address to the General Assembly emphasized the juridical—the legal—role that enables peoples of diverse cultures to acknowledge that regardless of the differences they possess, human rights constitute “the common language” which unites into one human family the pluralism of God’s creative design. If human rights are removed from this context, they acquire a relativistic nature the inevitably supplies the path to their destruction.
The second point offered by Cardinal Bertone considers the Universal Declaration itself. Here the Secretary of State recalls the world’s conditions that set the basis for bringing together delegates from all societies who were charged to address the serious concerns of rights denial during and after the Second World War. With a shared moral awareness, the drafters and their advisors proceeded to consider issues, debate approaches, and craft language that would draw attention to those shared attributes of the human person that must never be forfeited. A genuine human right is not the request for a favor but a demand for recognition that a non-derogable claim is due each human by virtue of his or her being human. It is this point that makes human rights natural, innate, inviolable, and inalienable. In essence, they are the birthmark of everyone who bears the image of the Creator because He, not the State or some other human society, created the person to whom He gave these natural rights. The Cardinal specifies that an essential trait of the Universal Declaration is that it was founded on the law of nations—the jus gentium—which are the laws of humanity and the dictates of public conscience. The Universal Declaration, moreover, reflects the foundation of justice because it establishes what is constitutive of right relationships between and among all peoples.
His third point is a brief discourse on the natural law itself. A number of MOJ contributors have tackled different issues over the years dealing with the natural law and the natural moral law. The Secretary of State (I wonder if he reads the MOJ?) reiterates the natural law’s significant role in identifying and protecting human rights. It is not human consensus or human, i.e., positive, law that formulates and defines human rights. Their origin is the transcendent and objective moral order established by the One who made us all—the natural moral law.
Cardinal Bertone’s fourth point concerns the dignity of the human person. Both the prologue and the first substantive article of the Universal Declaration speak of “human dignity.” But what is it? It is not, in essence, a right, but it is the medium which brings them together through the being and nature of every person that is common and essential to one and all. The Cardinal identifies human dignity as the cornerstone upon which the rest of the edifice of human rights is built. Inherent to human dignity are authentic freedom, justice, and peace. Without these central concepts, the pursuit of human rights can be the quest of each individual in pursuit of what he or she desires without taking stock of what is due everyone else. The Church’s role in the pursuit and protection of human dignity is to exercise the duty “to awaken in society moral and spiritual strength, helping to open wills to the authentic demands of the good.”
His fifth point focusing on the universality, indivisibility, and protection of human rights follows. Even though the Universal Declaration was not itself a binding juridical instrument imposing legal obligations on individuals, states, and international organizations, it has become “the main inspiration” for the movements that have established legal obligations identifying and protecting authentic rights. A major objective of the Universal Declaration must be to serve as the “proper conception of human rights” as understood to be those claims that belong to each solely in virtue of his or her humanity. The rights identified in the Universal Declaration are “indivisible” because they cannot be applied or considered in piecemeal fashion. In other words, it is not logical or coherent to consider some rights while ignoring others. While each State is obliged to protect the rights of those situated in its territory, the international community must be prepared to step in where they are not or cannot be enforced by the proper local authority.
Realizing that in today’s world, some have placed the mantle of human rights on dubious claims, the Secretary of State spends time in his sixth point by addressing the rights that are to be recognized by the Universal Declaration. He notes that there is “an ongoing, radical process of redefining human rights” that affects such crucial themes as the nature of the family, matrimony, and children. Once again, the guiding influence in assessing truth from falsehood about human rights claims is by having and exercising an objective understanding of authentic human nature. It is proper to the effort of the human rights advocate to understand and acknowledge the reality of this nature. Otherwise, falsehood can masquerade as truth and the truth of the nature of the human person can be ignored or even eradicated.
His seventh point dealing with the right to life reinforces his sixth point. Human rights become meaningless unless the right to life and continued natural existence are acknowledged and protected without compromise. The dignity of the human person becomes compromised when the life given to everyone becomes a pawn that can be easily or readily negotiated away by others. To think otherwise is to participate in a deception that compromises the protection of the genuine rights which are due to all. The threats to the right to life can be manifested in a variety of ways; however, their common denominator is the ability to eviscerate all other rights. If the dignity of the person is the cornerstone of human rights, the right to life is the keystone which keeps all others in place. Without this right being guaranteed to everyone as the Universal Declaration exhorts, the edifice constructed by Mrs. Roosevelt and the other drafters is subject to compromise by the caprice of whatever political power happens to be in office.
This brings us to the eighth point of the Cardinal’s address which deals with the family and education. The Universal Declaration acknowledges that the family is the basic unit or cell of society. Without a healthy and proper understanding of what the family is and what it is not, the health and strength of society are subject to forfeit. It is within this basic social unit that the essentials of education and the wisdom garnered by humans over the millennia are conveyed to our posterity. It is in this vital cell that the individual good and the common good are simultaneously nurtured. Of course, the Secretary of State emphasizes that the family and the life it promotes must be founded on the marriage of one man and one woman who enter a bond—a new being—that is freely entered and open to the conveyance of life to succeeding generations. In spite of the challenges that may confront this basic unit of society, this family has the essential task of conveying love—caritas—to its members and to the succeeding generations that it will produce. The Secretary of State surely had in mind the thoughts of the Universal Declaration’s drafters who were aware of what the totalitarian state attempted in its redefinition of the family and the education that was to be provided for the succeeding generations.
This brings us to the Cardinal’s ninth and final point concerning religious freedom and the Church’s relations with the political community. This is a freedom recognized by Universal Declaration and protected as a non-derogable right in one of its progeny, the International Covenant on Civil and Political Rights. The Universal Declaration acknowledges that religious freedom is a primary and inalienable right that individually and communally sustains other essential rights. The Secretary of State hastened to add that the Church also has her freedom that must be protected since her mission is to convey the truth taught by God that is essential to the survival and salvation of humanity. The Church has the duty to teach, and the subject of her teaching must be God’s truth, not the “truth” imposed by the State or the political party to the peril of what is genuine about the human person and human nature. He warns that to “try to impose, as secularism does, a practice of faith or religion that is strictly private, is to make a caricature of what the practice of religion actually is.” By peaceful means, the religious person, religious communities, and, therefore, the Church have the right as well as the responsibility to proclaim the truth that will set us free from whatever restrains the human person and the human community from their proper destiny. To silence their voices and to repress their actions is contrary to the flourishing of authentic human rights. It is clear that the religious person and the Church must respect the proper role of the temporal authorities; however, the temporal authorities must likewise respect and protect their voices and independent missions that serve as an important complement to the rights of all members of the human family.
In his conclusion, Cardinal Bertone reiterates that the Universal Declaration expresses the fundamental principles on which the law of nations is established and the dictates of public conscience are implemented. But there remains much work to be done that the author of human life expects from those who are dedicated to the proposition that fundamental human rights exist and must be protected. While the Church rejoices in the efforts that have been made in this regard, she must remain a participant in the both the debate and the work that will ensure the “protection of human rights, which belong to each person in virtue of his or her natural dignity, from the very moment of conception… to natural death.”
I cannot really continue to debate Eduardo now that he has retreated to a forum (dotCommonweal) to which I have no equal access. But let me clarify at least one clear confusion in his last post against me on that other website.
My initial comment on Spain (January 30, 2009) began with this sentence: "Paul Krog makes an interesting and useful analogy of [abortion in] the USA to [murdering priests and nuns in] Spain on the eve of its Civil War (government-tolerated killing in both cases).", By it I meant, as Steve has just suggested, that this is one among many intellectually useful analogies for pro-life scholars to use to get a grip on the meaning of our current regime.
My second sentence was: "But in my view, we are heading toward rather more direct analogies: hatred of religious folk leading to church burnings and worse, as has already been publically threatened in Spain itself." This analogy is my own and I mean it to have practical effect. We are in the process of creating a climate that may lead to anti-religious violence. The hour is getting late for us to do something about it.
Despite the fact that Eduardo continues to criticize the rhetoric, analogies, and comparisons of pro-lifers (suggesting that we really don't believe in the equal dignity and worth of every human being regardless of stage of development and capacity), he has yet to defend - so far as I can tell - the position that some human beings have less worth and dignity than others.
In a September 29, 2006 post, Eduardo acknowledges that embryos have human status "(in some sense)" and quotes a reader saying "no amount of rhetoric can bridge the ontological chasm between the person enslaved and a fetus." In response, Robert George invited him to clarify and defend his position nearly two and a half years ago in this post October 3, 2006 on the First Things blog:
[L]et us get to the heart of the matter in dispute. Either Eduardo Peñalver believes that human embryos are human beings or he does not.
Either he believes that every human being–irrespective of age, size, stage of development, or condition of dependency—possesses profound, inherent, and equal dignity or he does not.
The first question is a scientific one, and the answer to it is clear. The evidence, attested to unanimously by the major embryological texts used in contemporary anatomy and medicine, is overwhelming. From the zygote stage forward there is a complete, distinct, individual member of the species Homo sapiens who, by directing his or her own integral organic functioning, will (assuming adequate nutrition, a suitable environment, and decent health) develop himself or herself toward the more mature stages of human development.
The second question is philosophical. Do we possess dignity and a right to life by virtue of the kind of entity we are, namely, a human being—the one type of bodily creature known to us who has a rational nature? Or is dignity something we possess only by virtue of our acquisition or realization of certain qualities (immediately exercisable capacities) that human beings in certain stages and conditions possess (or exhibit) and others do not, and that some possess in greater measure than others, e.g., self-awareness, consciousness, rationality? If the latter, then not all human beings are “persons” with rights. There are certain classes of human nonpersons: pre-personal human beings (embryos, fetuses); post-personal human beings (those in minimally conscious states, those who have been afflicted by dementias); and those who (due to severe congenital retardation) are not, never were, and never will be “persons.”
The Catholic position (shared by many Protestants, Jews, people of other faiths, and people of no religious affiliation, and philosophically defensible even apart from revelation) is that every human being, irrespective of age, size, stage of development, or condition of dependency, possesses profound, inherent, and equal dignity and a basic right to life. There are no classes of superiors and inferiors. There are no “human nonpersons.” If Professor Peñalver doesn’t believe this, then he should clearly say so. …
Peñalver seems to have been throwing us hints in his recent postings. [In his Sept. 29 MOJ post, he refers] to the status of the embryo being “human” merely “in some sense.” … In fact, we know precisely the sense in which human embryos are human: They are distinct living members of the species Homo sapiens who, unless denied or deprived of what any other human being requires, namely, adequate nutrition and an hospitable environment, develop by internal self-direction along the gapless continuum of a human life. The adult human being who is now, say, Eduardo Peñalver, is the same individual, the same human being, who earlier in his life was an adolescent, a child, an infant, a fetus, and an embryo. By directing his own integral organic functioning, Eduardo developed from the embryonic stage of his life into and through the fetal, infant, child, and adolescent stages, and into adulthood with his distinctness, unity, determinateness, and identity intact. To have destroyed the human being who is Eduardo at any stage of his life would have been to destroy Eduardo.
But perhaps Professor Peñalver thinks that he lacked dignity and right to life in the embryonic and fetal stages of his development. Perhaps he supposes that he acquired them later. Sophisticated arguments for distinguishing putatively “pre-personal” (and “post-personal”) human beings from “persons” have been advanced by a number of people. Some of them, like Peter Singer, Michael Tooley, and Jonathan Glover, are willing to live with the logical implications of their position by endorsing the morality of infanticide. …
I invite Professor Peñalver, if he [believes that there is an ontological chasm between the person enslaved and the fetus], to give us a philosophical account of the “chasm” that allegedly exists between human beings in early developmental stages and those at later stages of maturity. Given the remarkable assertion that the alleged chasm is ontological, it would be good to know what evidence he would adduce to establish what seems on the basis of the embryological facts to be patently false, namely, that embryos differ in kind from infants, adolescents, or adult humans. If Peñalver is prepared to propose the ontological division of humanity into classes, some fully human and others merely human “in some sense,” I would be curious to see if in fashioning the argument he would do as well as the pro-slavery philosophers and theologians of the antebellum period—some of whom, as Eugene Genovese has shown, were very sophisticated indeed. There are equally sophisticated writers today—such as Singer, Tooley, and Glover—who are willing, as I mentioned, to distinguish pre- and post-personal human beings from human persons. But they do not pretend that such distinctions can be made compatible with the sanctity-of-life principles of the Catholic Church and the broader Western philosophical tradition. Indeed, they are tenacious critics of the Church’s (and tradition’s) basic stand. I do not suspect that their work will be of much use to Peñalver in defending an “ontological chasm.”
HT: Robert George
Sunday, February 15, 2009
In recent years, there has been widespread resistance to the suggestion that a health care provider's own moral convictions should limit or otherwise shape the services she provides. Whenever a pharmacist refuses to dispense the "morning after" pill, to cite a well-known example, most academic and media commentators have been quick to condemn the refusal. As the governor of Wisconsin explained when vetoing a bill that would have extended conscience rights to pharmacists, "you're moving into very dangerous precedent where doctors make moral decisions on what medical care they'll provide."
The conversation has gotten more interesting with the news that a fertility doctor implanted a single parent of six with six more fertilized embryos (two became twins). Some might insist that the criticism of the fertility doctor is different than the criticism of the pharmacist, because the pharmacist is engaged in paternalistic moralizing, while the fertility doctor violated the harm principle by disregarding the well-being of the children to be born. It's not quite so simple, though, since concern for the children to be born also motivates the objecting pharmacist. (Another stream of criticism focuses on the octuplet mom's "wasting" of taxpayers' money, which is another story.)
Like Rick Garnett, I know little of the Spanish Civil War. I do not think the Church should have supported either side. Its tight connections with Franco served to damage the Church in the long run (as Jose Casanova has shown convincingly) as have most of its tight connections with dictators. (Is Constantine an exception?).
With respect to abortion, I understand the argument for the analogy. I do not understand the purpose of the analogy. Surely, it would not persuade anyone who favors Roe. Those who favor Roe do not think that the unborn have the same moral status as the born. The Spanish Civil War analogy does nothing to speak to them. Perhaps it is designed to light a fire under those already persuaded. But if those persuaded already see abortion as mass murder, I do not see the point.
In any event, if Stith is right in the Stith/Penalver dispute, I think it over the top to maintain that the impingements on religious liberty (notice I am not now talking about abortion) in the United States are comparable to the murders in Spain. I agree that hospitals should not be forced to have abortions or supply contraceptives (though I do not think government need fund hospitals that do not offer the care government seeks to support). I agree that Mormons should not be subjected to violence (to what extent are they?; Is the Spanish Civil War really an apt comparison here?) or discrimination (though I think far more than Rob's view in Commonweal (an otherwise excellent article) that they are fair subjects of criticism as are all citizens; in this respect and in many others I do not agree with Rawls' public reason doctrine).
Stith says that the actions of the Republican regime explain (but do not justify) the violent reaction. Perhaps I have to sunny a view. I do not see Catholic or Mormon violence (in reaction to infringements on religious liberty) on the horizon in the United States. Again I am having trouble seeing the pragmatic point of the analogy to the Spanish Civil War. If it is just an intellectual exercise. Fine. Nothing wrong with that.
Rick recently posted about obscenity and pornography including links that were helpful on the damage done by such speech. (One of the authors, however, seems not to know that obscenity is not protected (leaving Stanley aside) under the First Amendment and the other either does not know of the Miller case or gives it an unwarranted narrow reading). I think the rise of the internet makes enforcement of obscenity laws much more difficult. Nonetheless, I think the outlawing of obscenity at worst has expressive value, and I find it regrettable that the MacKinnon ordinance was not given a triaI effort in some areas. I am interested in the extent to which the Church's position on speech issues compares with current law. I would be grateful if someone could point me on or off site to the Church's views on obscenity, defamation, and privacy in particular. I know that the Church opposes pornography. I think the Church should be opposed to a culture that sanctions the invasions of privacy protected under American law (as opposed to Germany and France) though I do not know of statements to this effect. I would be greatful for information about Church lobbying in these areas as well. I have no clue what the Church might have said about defamation (my views are more U.S. oriented here than European).