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, February 16, 2012

Morals and Mandates: Question 1

Two days ago I mentioned I'd been in Albany and accordingly not yet had time to read Robby's and Sherif's tour de force, Morals and Mandates, with the care that it warranted.  I'd only been able at that point to glance through the piece, which was sufficient to indicate that it was painstakingly thoughtful and thorough, but not sufficient to engage with it responsibly.  Well of course things are still very busy at this end (aren't they near always for all of us), but I have at least found the time to read this important contribution with greater care.  I now have several questions for Robby, Sherif, and interested others that I think might assist me, and possibly yet others, in arriving at a sound opinion about what I've been calling 'Mandate 2.0.'  I'll pose only one of those questions here, saving others for separate posts, in order to maintain sufficient focus on each distinct 'issue' as to keep matters tractable.  Later I hope we might draw all together.

Preliminary to proceeding I pause to note that, as Robby and Sherif observe, the White House has thus far been 'exceptionally vague' about precisely what shape the updated mandate will take.  We might, then - at least if Morals and Mandates is not quite right in one of its conclusions - be in a certain sense deliberating in part in a vacuum here.  The conclusion to which I refer is that to the effect that no shape that Mandate 2.0 might take will render it substantively distinct, morally speaking, from Mandate 1.0.  I'll call this the 'no difference' conclusion.  My first question speaks to precisely this conclusion.  And if its answer turns out to be what I think - don't know, but think - that it might, then the no difference conclusion will be in doubt, and we might then indeed be deliberating in part in a vacuum.  But that will itself be good news, for it will mean that our deliberations might themselves make a difference.  They might ultimately afford guidance in the final formation of Mandate 2.0 itself - assuming that anyone's reading.

All right.  Finally now to my first question prompted by Morals and Mandates, the subject of this narrowly framed post.  

Robby and Sherif observe importantly that there is a critical, time-honored distinction to be drawn between formal and material involvement in wrongdoing.  Formal involvement sounds in intention, while material involvement sounds in effect.  Because neither Mandate 1.0 nor Mandate 2.0 would have involved religiously affiliated institutions in formal involvement with wrongdoing, Robby and Sherif argue, the morally relevant question with which we're presented since 10 February is whether the two mandates are apt to yield appreciably different material effects.  If more or less the same people will receive the same contraceptive coverage under the two mandates, and if the religiously affiliated institutions will effectively be footing the bills in both cases, then there is no substantive difference between them.  Any sound objection to Mandate 1.0 will carry over to Mandate 2.0.  

(This conclusion is of course a two-edged sword, in that it might, under certain causal circumstances I'll inquire about in the form of a separate question in a subsequent post, entail that Mandate 1.0 itself was not objectionable after all.  I defer that until later, though, because I think that Mandate 1.0 was indeed objectionable, for reasons that Robby and Sherif might be overlooking - reasons to the possible, but to me still uncertain, presence of which I now turn.)  

So my question in respect of Robby's and Sherif's no difference argument is whether formal and material involvement in wrongdoing exhaust the relevant possibilities of such involvement.  In other words, does the full class of all possible involvements in wrongdoing divide without remainder into formal and material such involvement?  If it does not, then there might be a morally significant distinction between Mandate 1.0 on the one hand, and some conceivable renditions of Mandate 2.0 on the other hand, that Robby's and Sherif's important argument does not capture.  That distinction, moreover, might be precisely what those who objected to Mandate 1.0, but for now withhold judgement on Mandate 2.0 pending further specification, have in mind.

What might the hypothetical such 'remainder' here be?  For now let us call it a 'dignitary,' or 'integrity' interest that Mandate 1.0 violated while some specifications of Mandate 2.0 might not violate.  My guess is that a moral intuition - or, in one currently hip idiom, a 'heuristic' - that sounds in some such interest might be at work among many of those who recoiled at Mandate 1.0 but for now reserve judgment about 2.0 pending further specification.  Moreover, I suspect that this intuition, assuming it's there, might belong to the same 'cognitive family,' so to speak, as the 'proximity heuristic' evoked by many 'proximate causation' hypotheticals in tort and many 'trolly problems' in ethics.

Is there such an intuition, and if so, is it morally rational to honor it?  Does some such intuition, in other words, tap into or serve as a window into some important moral truth?  Here's a way at least to begin to address that pair of questions:  

First, let x be a commodity the consumption of which many find deeply morally objectionable, others find morally indifferent, and still others find morally necessary.  D is a person who might, and might not, consume x.  C is a person who sells x.  B is a person who finds the consumption of x deeply morally objectionable.  Finally, A is a person who considers at least the availability of x to all persons like D to be morally necessary, and who also is able through various coercive powers both to make certain commodities available and to make other persons make such commodities available - even to the point of requiring persons like B to procure goods like x and then hand them to persons like D.

It is of course possible to open some or all of the 'black boxes' that are A, B, C, D, and x here, in that at least some of them - certainly A, B, C, and x per the 'intended interpretations' that I have in mind - are composite.  (A, for example, might be a democratic repbulican state; B and C firms comprising multiple participants of various kinds, and x a portfolio of many services all but one or two of which are morally unobjectionable to all or nearly all concerned parties.)  It is also possible to add additional parties or entities.  And it might ultimately be necessary to engage in some such disaggregating and/or entity-adding in order to get to the moral heart of the matter before us.  But for now I'll assume it legitimate to keep things sufficiently simple as to embrace only A, B, C, D, and x as indivisible wholes.  

Well, you see now where this is going.  There seem to be several distinct scenarios under which A might execute its intentions to make x available to D here.  Per one of them, call it 'Scenario 1,' A procures x from C and provides it to D.  Per another, Scenario 2, A requires C to make x available to D free of charge.  Finally, per another scenario, Scenario 3, A requires B - the party that considers x to be repugnant - either to commence providing x directly to D, or to procure x from C and then provide it to D.  

Now it seems to me that our moral intuitions are engaged by Scenario 3 in a manner qualitatively distinct from any manner in which Scenarios 1 and 2 might engage them, and that the distinction is grounded in something that is not merely irrational, illusory, or morally epiphenomenal.  That something is what I labeled above the 'dignitary' or 'integrity' interest.  Something in us seems to balk at the idea that one (one A) might not only give to person D something which person B finds repugnant, but might go a step further and say to person B him/herself, 'here, you give it to D.'  It strikes us a particularly insidious, diabolical, even gratuitously cruel - as if an intruder in one of our homes, not satisfied with simply handing a pornographic magazine to one of our children, ordered a parent at gunpoint to hand the magazine to her/his own child instead.  

Am I wrong here?  Do we, in other words, not view it as more chilling for the intruder to force the parent to hand the item to the child than for that intruder to do so him/herself?  And if we do, is this just morally epiphenomenal, so to speak, a matter of mere superstition?  Or is there more to it?

It seems to me, at least pending further argument, that there might be something substantive here.  Somehow your (A's) forcing one party (B) to commit the very act that that party considers repugnant - in this case, handing a repugnant commodity (x) to, or procuring that repugnant commodity for, another party (D) - is worse both than committing that act oneself, and even than, say, appropriating money from that party (B) or some other party (C) so as to finance your own (A's) provision of that commodity.  For it does a sort of violence to the objecting party's very integrity or dignity as a moral agent that the mere taking of funds from that party or some other party, let alone the taking of funds from another party in such wise as leads to that other party's exacting funds of you, does not. 

(Note that I am assuming a causal nexus in that last scenario - A appropriates money from C who then in consequence exacts money of B - which might itself be questioned, at least in insurance markets (for reasons I'll treat of later), but which I do not question for present purposes.  Much also rides on what counts and does not count as 'handing' a repugnant commodity to someone here, which we might ultimately have to discuss, but I'll assume for the moment that having money appriated from one so as to finance someone else's handing over of the commodity does not count as one's own handing the commodity itself.) 

My conjecture is that some such intuition as this accounts not only for the reactions that many 'liberal' Catholics experienced in respect of Mandate 1.0, but also for the reaction that, say, Justice O'Connor experienced in respect of the federal government's 'commandeering' of a state in the set of circumstances that resulted in New York v. United States.  It might also account, in whole or in part, for the constitutional 5th Amendment right against self-incrimination.  In all such cases, the objection seems to have something to do with the impression that some actions in effect commandeer the moral agency of a person of some kind, as if to convert that person from an end to an instrument.  And it isn't yet clear to me that this impression is merely illusory.  

(Even though, I must admit, while a JD student I thought O'Connor's 'commandeering' objection in NY v. US muddled and absurd, the product of a mere category error in taking states to be the sort of thing capable of holding dignitary interests.  But maybe I was wrong?)

So, Robby, Sherif, others, what make you of this?  Is there anything to it?  And if there is, then might there be some conceivable further specification of Mandate 2.0 that would prevent its offending a religiously affiliated institution's dignitary or integrity interest?  I honestly haven't decided yet.  And that is partly because I am not yet quite certain what to make of the intuition or 'heuristic' to which I refer.

One final point.  It might be that the 'integrity' intuition of which I am tempted to make something here can be understood in intentional terms, such as might render it not quite correct that Mandate 1.0 managed to avoid formal involvement of religiously affiliated institutions in wrongdoing in a manner that placed it on all fours with any conceivable further specification of Mandate 2.0.  And I say this as one who, like Robby and Sherif doubtless do, subscribes to an Anscombian - hence ultimately a Thomist and Aristotelian - understanding of intention.  But I'll save this, too, for later, so as not to complicate the present post any more than necessary.  (It might also be the case that all I have said above is vitiated by my not yet considering in greater detail whether the 'dignity' or 'integrity' objection can be couched in intentional terms.  At present I just do not know, so I'll leave it at present at that.)

Many thanks again, as ever.      



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