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.

Tuesday, February 22, 2011

Integrity and exceptionless moral norms

The recent debate among pro-lifers about legitimate and illegitimate tactics in the cause of protecting unborn babies has garnered valuable contributions from several of the pro-life movement's most dedicated, gifted, and accomplished thinkers, notably including Hadley Arkes, truly the "dean" of pro-life philosophers in the United States (here: http://www.thepublicdiscourse.com/2011/02/2631); Christopher Tollefsen (here: http://www.thepublicdiscourse.com/2011/02/2529, here: http://www.thepublicdiscourse.com/2011/02/2547, and here:  http://www.thepublicdiscourse.com/2011/02/2648); Christopher Kaczor (here: http://www.thepublicdiscourse.com/2011/02/2538); Francis Beckwith (here:  http://www.thecatholicthing.org/columns/2011/live-action-and-telling-falsehoods.html), and, this morning, Carson Holloway (here: http://www.thepublicdiscourse.com/2011/02/2658).

All of these thinkers hold (I believe) that there are certain moral absolutes, i.e., exceptionless moral norms.  But what is the nature of such norms?  Do they exclude certain acts describable in non-evaluative terms, e.g. performing sex acts on a person without her consent (what is ordinarily called rape); acting with the goal of causing one's own death (what is ordinarily called suicide); engaging in sexual relations with someone who is not one's spouse (what are ordinarily called adultery and fornication); making false assertions (what is ordinarily called lying), etc., tout court, or only when they are committed without justification?

According to one view, although lying is intrinsically (and therefore always) wrong, deliberately speaking falsely to prevent evil doers from killing innocent people is not "lying."  Someone lies, according to proponents of this view, only when he deliberately speaks falsely without justification.  Sometimes, they insist, speaking falsely is justified.  For example, asserting something one knows to be false to a Nazi to prevent him from locating a victim he intends to send to a death camp is not lying.  So, in their view, the exceptionless norm against "lying" is not a norm that forbids speaking falsely when speaking falsely is justified.

Of course, no one believes that it is morally permissible to tell the murderer at the door the truth about the whereabouts of his prospective victims.  After all, he has no right to the truth. (Indeed, telling him the truth would be far more gravely immoral than lying to him.) The question is whether it is permissible to tell him something that one knows or believes to be false---i.e., in ordinary parlance, to lie to him.  Many people seem to think that it is obviously permissible.  To ask the question is to answer it.  Since it is not obvious to lots of other people, and has been contradicted by some of history''s greatest philosophers and religious thinkers, and runs contrary to the teaching of the magisterium of the Catholic Church, I wonder why.  My guess is that it seems to some that there is simply nothing to be gained, and a great deal to be lost, by refusing to lie (i.e., to say what one knows or believes to be false) to the Nazi or other murderer.  The lie (or, if we are to define lying as unjustified false speaking, the untruth) in itself seems to do no harm, and may do enormous good (by frustrating the evil doer's efforts to find his prospective victims).

But if we shift from the issue of speaking falsely to, say, performing a sex act on someone against her will, I think we can see how complicated and unobvious things are.

Let us suppose that it is 1943 and you are sheltering seven persecuted people, mostly children, in your large home in Munich.  To protect them, and to help destroy the Nazi regime, you infiltrate a group that specializes in hunting down hidden Jews and other persecuted people and sending them to the death camps. This ensures that your own home will not be searched---it is, after all, yours, and you have persuaded the Nazi thugs that you are one of them.  You've had some success.  For example, because of your access to inside information, you were able to tip off in advance of a raid a priest who was sheltering a family in the crypt of his parish church.  He moved the family out of the church to a safe place before the raid occurred.  But it raised some suspicion within the Nazi group that there was a "traitor" in their midst.  One day, you are at the group's headquarters when a captured girl is brought in.  Suddenly the leader of the group exclaims, "she is to be raped before we kill her."  He points to you:  "rape her," he orders.  Another member of the group, an incredibly brutal Nazi named Heinrich, says, "hey, let me do it."  "No," the leader replies, "I want him [i.e., you] to do it." From the leader's manner and expression, you can tell that this is a test.  He suspects that you might be the traitor.  If you refuse to rape her, he will infer that you are indeed the traitor, or may be him, and he will immediately arrest you and search your home.  He will find the seven people you are hiding and send them to their deaths.  Now, remember, if you refuse to commit the rape you've been ordered to commit, it won't make any difference to the victim.  She is going to be raped and killed anyway. (Heinrich is chomping at the bit to commit the atrocity, and he will commit it with the greatest possible brutality.)  But it will make a huge difference to the seven people you are sheltering in your home: they, too, will be brutalized and killed.  What should you do?  Should you rape the girl or not?  Is it not really rape (and not excluded by the exceptionless norm against committing rape) because it is the rare case of the justified performing of a sex act on someone without her consent?  If you refuse to perform the rape, despite the fact that it will be performed---and performed more brutally---anyway, are you making yourself complicit in the deaths of the seven people who, as a result, will be discovered in your home?

In this case, to all outward appearances there is nothing to be gained and much to be lost by not committing the rape.  The girl is made no better off by one's refusal to commit the rape, since it will be committed (even more brutally) by someone no matter what one does, and the seven people being hidden will be made much worse off---they will be sent to their deaths.  Still, I suspect that most pro-life philosophers would agree with me that one should not commit the rape.  And most would agree that refusing to commit the rape does not render one complicit in the deaths of those who are thereby exposed.

Someone might say:  lying to a murderer and raping an innocent child are on entirely different planes.  There is absolutely no analogy between the two cases.  Well, they are indeed very different cases.  But the objection misses the point.  The argument against speaking contrary to one's mind has never been based on the claim that the murderer has a right to be told the truth  Everyone in the debate agrees that he has no such right.  Those who reject speaking falsely argue that the harm of speaking contrary to one's mind is, or at least includes, harm (which may be minor or may be grave) to one's integrity.  The harm in raping the girl is, similarly, harm to integrity.  All rapes do that harm, even a rape that leaves the victim no worse off than she would otherwise be, given that someone is going to commit the rape no matter what, and whose consequences would include preventing the murders of many potential victims.

*It might be helpful to consider a variant of the hypothetical case sketched above---one in which the issue is adultery rather than rape.  In this variant, the victim brought into Nazi headquarters is a woman with whom you have been working, along with her husband, in the underground anti-Nazi movement.  Everything else remains the same up to the point at which brutal Heinrich says, "hey, let me do it."  Even greater terror seizes the victim, for she knows Heinrich all-too-well.  When the Nazi leader says, "no, I want him [i.e., you] to commit the rape," the victim signals you with a quick facial expression pleading with you to do it, in order to spare her from Heinrich.  The Nazis will think it is a rape, because they did not pick up her subtle signaling to you.  In truth, it would be adultery, albeit adultery committed only as a way of preventing a brutal rape.  Should you do it?  Is it justified adultery? If "adultery" is the subject of an exceptionless moral norm, should this be regarded as something other than adultery on the ground that it is justified sex between a married person and someone who is not her spouse?  Or is it truly adultery, and therefore wrong even under these circumstances?  If it is indeed wrong, and as such not to be done, in what does the wrong consist?  (Let us assume that if the victim's husband knew the circumstances, he would wish you to comply with her wishes in order to spare her from Heinrich.)

February 22, 2011 | Permalink | TrackBack (0)

Monday, February 21, 2011

Depravity -- or, Legal Moralism's Protective Dimension

Criminal law teachers and scholars know that an unintentional killing evincing a "depraved mind" (or "heart") historically has constituted murder -- one whose culpability is generally on a par with an intentional killing.  As part of my efforts this year to learn and teach more New York law to my criminal law students, I have been greatly enjoying the rich local doctrine in this area.  The New York Penal Law uses the "depraved indifference" formulation, and, in a nutshell, the Court of Appeals relatively recently held that depravity is its own mental state, and cannot be captured by "objective" factors which relate solely to the degree of risk-taking.  The latter was the older rule in a case from the early 1980s, People v. Register, where the aim had been in part to shear away what was perceived as a kind inappropriate legal moralism in the concept of "depravity" and to make it more neutral, more "objective."  The result was that prosecutors began to charge defendants with both intentional and depraved indifference  homicide -- an outgrowth of the fact that depravity no longer retained its own independent sense of culpability.  It was the desire to do away with the distinctive moral opprobrium that attaches to depraved indifference which occasioned the prosecutorial practice of gamely bringing two charges that have no business standing side-by-side.  Roughly five years ago, Register was overruled.

In my (limited) experience teaching criminal law, students have a difficult time wrapping their minds around the idea of depravity -- they want to think about it purely in terms of excessive risk-taking -- really, really excessive (murder) as compared with just plain old excessive (manslaughter).  But the New York experience suggests that the older, morally laden language is more protective of defendants -- more protective exactly because keen to retain the distinctly culpable quality of "extreme wickedness, or abject moral deficiency," People v. Suarez, 6 N.Y.3d 202 (2005), that is the distinctive flavor of depravity.

As it happens, I'm working on a paper dealing with the thought of Sir James Fitzjames Stephen, an important Victorian-era jurist and one of the leading 19th century expositors of English criminal law.  His descriptions of the culpability of particular offenses, often drawn from cases that he tried, are masterful.  For criminal law teachers who are thinking about how to transmit the concept of the depraved heart, may I suggest the following tract, from the third volume of Stephen's magnificent History of the Criminal Law of England:

Continue reading

February 21, 2011 in DeGirolami, Marc | Permalink | Comments (0) | TrackBack (0)

Bernard Nathanson, RIP

Bernard Nathanson has died at the age of 84.  After overseeing about 75,000 abortions, he became pro-life in 1979.

February 21, 2011 in Scaperlanda, Mike | Permalink | TrackBack (0)

The Nun Who Kissed Elvis

In the days between my two Saturdays of watching all 10 Best Picture Oscar nominees with my son, my thoughts tend to focus on Hollywood.  But, lest you have any doubt about the fact that God's radical call can come to people even on the most unlikely career trajectories -- such as pretty far up the ladder toward movie stardom -- check out the story of Mother Dolores Hart in a recent issue of Entertainment Weekly.

February 21, 2011 in Schiltz, Elizabeth | Permalink | Comments (0) | TrackBack (0)

The Nature of Secularism

Much of the dialogue surrounding political and legal reform in the Middle East revolves around visions of secularism, which are usually meant to frame the relationship between religion and the state.  In the most recent issue of Commonweal, Charles Taylor recasts secularism as the response of the democratic state to diversity. See "Religion Is Not the Problem."  See also Charles Taylor's fascinating book, A Secular Age.

February 21, 2011 | Permalink | TrackBack (0)

Sunday, February 20, 2011

To Tell the Truth

Hadley Arkes (here) and Peter Kreeft (here) have now joined the debate over the morality of Live Action’s video recordings of Planned Parenthood workers who, in numerous instances, appear to ignore not only the law but the plight of underage girls involved in prostitution and suggesting ways in which statutory rape reporting laws and parental consent laws can be avoided.

Robby George and Rick Garnett have already blogged on this topic at MOJ here and here.

Live Action’s website is available here and the full, unedited footage of the tapes is available here.

To obtain the videos, a woman and a man from Live Action pretended to be something they are not.  They visited various Planned Parenthood clinics posing as a prostitute and a pimp seeking testing for STDs and abortions for teenage girls working as prostitutes and present in this country illegally.


February 20, 2011 | Permalink | Comments (14) | TrackBack (0)

Friday, February 18, 2011

The Obama conscience regs: not disastrous, but cause for concern

I provided a short commentary on the new Obama conscience regulations for Michael Sean Winters over at the National Catholic Reporter website.

February 18, 2011 in Vischer, Rob | Permalink | Comments (2) | TrackBack (0)

Obama conscience regulations

. . . have just been released.  Read them here.  (Please read them before commenting on them.)

UPDATE: An encouraging opening paragraph in light of our earlier discussion: "Neither the [Bush] 2008 final rule, nor this Final Rule, alters the statutory protections for individuals and health care entities under the federal health care provider conscience protection statutes, including the Church Amendments, Section 245 of the Public Health Service Act, and the Weldon Amendment.  These federal statutory health care provider conscience protections remain in effect."

UPDATE #2: Forgive me for live-blogging my own reading of the regulations, but uh-oh, I think I see where we're headed: "The Department supports clear and strong conscience protections for health care providers who are opposed to performing abortions," but rescinds the portions of the 2008 final rule that were "unclear and potentially overbroad in scope."

UPDATE #3: Basically, the new regulations remove the certification requirements and leave enforcement of violations of existing federal statutory conscience protections up to the HHS Office for Civil Rights.  Also, out of concern that the definitions contained in the Bush regs might lead to overbroad interpretations of the statutory protections, the new regs have deleted all definitions, offering the puzzling explanation that HHS "believes that individual investigations will provide the best means of answering questions about the application of the statutes in particular circumstances." 

HHS acknowledges receiving many comments raising concerns about Catholic hospitals being forced to close absent conscience protection, and HHS responds that "Roman Catholic hospitals will still have the same statutory protections afforded to them as have been for decades."  Elsewhere in the document, though, HHS acknowledges Connecticut's concern that the Bush rule "would prevent them from enforcing their state laws concerning access to contraception," and HHS responds that, "while there are no federal laws compelling hospitals to provide contraceptive services, the Medicaid Program does require that States provide contraceptive services to Medicaid beneficiaries," and HHS is "concerned that the breadth of the 2008 Final Rule may undermine the ability of patients to access these services, especially in areas where there are few health care providers for the patient to choose from."  As such, HHS "partially rescinds the 2008 Final Rule based on concerns expressed that it had the potential to negatively impact patient access to contraception and certain other medical services without a basis in federal conscience protection statutes."

My quick take is that the Obama regs provide a means of enforcement with the Office for Civil Rights, though it remains to be seen how interested the OCR will be in bringing actions against offending entities.  The regs also remove any other substantive provision that interprets (or could potentially be read as expanding upon) the statutory protections.  To the extent that there is uncertainty about the actual requirements of the relevant statutes, these regs disavow any attempt to lend greater clarity beyond the issue of abortion.

February 18, 2011 in Vischer, Rob | Permalink | Comments (5) | TrackBack (0)

The Endurance of the Used and Rare Bookstore

A long time ago, I was fortunate to work part time for about a year at a used and rare bookstore called McIntyre and Moore Booksellers (they were on Mt. Auburn Street back then, not way off in Porter Square).  Present circumstances excepted, it was the best job I ever had.  I learned a little bit about how to judge a book's value as well as how to repair beautiful but injured old books.  I also discovered things that I know I would never would have come across -- a first edition of T.S. Eliot's "Murder in the Cathedral," an early edition of George Santayana's "The Genteel Tradition at Bay," and even -- for the first time -- a used copy of Harold Berman's "Law and Revolution," as well as lots and lots of other odds and ends.  The beauty of the store was its physical orientation to books -- books needed to be touched, felt, fixed, glued, stacked, flipped through.  The must of their oldness and used-ness had to be smelled, their collected dustiness inhaled.  Part of the fun was to see and touch again the discolorations and brown spots that were the marks of prior readers, or to see a 100 year old inscription, and then another one about 50 years later, on a 200 year old volume.  Some rare bookstores have the air of a holy shrine; you enter and can almost hear the Gregorian chant.  Those can be great too, but my store was more earthily tactile, though some of its books could be quite valuable.

When I worked there, the shadowy fear was always that the giant chains -- Borders, Barnes & Noble, and the like -- would choke the life out of these little stores.  It was at least in part because of the market pressure of these big mega-stores that my own store opted to relocate.  But with the news of Borders's bankruptcy (B&N isn't doing all that well either), I can only imagine that stores like mine -- most of which have managed to survive just fine -- are feeling some...schadenfreude isn't exactly right, but I bet they're feeling a little pride.

The received wisdom is that on-line giant Amazon has made the physical mega-stores obsolete.  You can obtain much more from Amazon than you can from Borders, and it's easier to do so.  Yes, Borders allows you to browse through books, which you can't do the same way on Amazon, and that means you have to have a better idea of what you're looking for on Amazon.  But why hasn't the same market force which crushed Borders dampened the fortunes of the used and rare bookstore?  After all, you can get as good or better deals on Amazon as you can at any of these stores.  The selection of course is infinitely better.  As for rare or extremely valuable books, stores like mine might still have an advantage, but not enough people can afford to buy these books to keep the little stores afloat.  Is it the inherent physical pleasure of books that explains why the little stores -- much smaller operations than Borders and the like -- continue to survive and even prosper?  What is it that accounts for the endurance of the used and rare bookstore?    

February 18, 2011 in DeGirolami, Marc | Permalink | Comments (7) | TrackBack (0)

End the Subsidy for Commercial Broadcasters?

House Republicans are proposing to end the subsidy to public broadcasters purportedly as a deficit cutting measure. If they were serious about that and if it were not an ideologically motivated exercise, Republicans should jump at the chance to eliminate the much larger subsidy for commercial broadcasters. Both commercial and public broadcasters are permitted to use the frequencies for free. In the case of commercial broadcasters, this is a massive giveaway because they can and do charge advertisers for access to the frequencies. Commercial broadcasters are even permitted to sell the frequencies they have received for free. I recall many years ago a station in a major city being sold for hundreds of millions of dollars.

Why don't we end this free use of the public airwaves? Why don't we charge broadcasters before we give them a license to gobble up money? The theory used to be that these broadcasters were licensed to be public trustees. In practice, with deregulation, commercial broadcasters are trustees for commercial advertisers. There is a name for a system in which commercial broadcasters collectively are given this subsidy (a subsidy worth tens of billions of dollars): it's called corruption.

February 18, 2011 | Permalink | Comments (11) | TrackBack (0)