Posts tagged law

Ronald Dworkin, theorist on relationship between morality and law, dead at 81

Matt Schudel of The Washington Post has written a great obituary on a man who has influenced the thinking of a countless number of people on this issue (including me):

Ronald Dworkin, an innovative legal thinker who developed a novel interpretation of the moral underpinnings of the Constitution and who became respected in liberal circles for his writings on law, politics and hotly debated public issues, died Feb. 14 in London. He was 81 and had leukemia.

New York University, where Mr. Dworkin was a law professor, announced his death.

Mr. Dworkin, who also taught for many years at the University of Oxford in Britain, went against a century of legal thinking — including the theories of his two most important mentors — to develop a new concept of jurisprudence based on society’s widely shared notions of morality.

His idea of “law as integrity” held that jurists should interpret legal cases through a consistent set of moral principles. In other words, law and morality were inextricably linked, which was a subtle twist in legal thinking. Mr. Dworkin’s theories gained a wide following, particularly among social liberals.

“For many, Dworkin was something of a legal prophet who tried to invest legal interpretation with a sense of moral reasoning,” Jonathan Turley, a law professor at George Washington University, said Thursday. “His writings offered a new and transcendent view of the law — a view that will influence legal reasoning for generations.”

You can read the whole thing here.

White House pushed on drone warfare

Earlier this week, NBC News leaked a confidential memo from the U.S. Justice Department which concluded that the White House can order the killing of American citizens if they are considered to be “senior operational leaders” of the terrorist organization Al Qaeda or an associated force — even if there is no information which links the supposed leader to an active plot against America. 

News of the 16-page memo set off a heated national debate regarding governmental secrecy, the limits on executive power, and the merits of drone warfare.

White House Press Secretary Jay Carney tried to calm the debate by stating

"These strikes are legal, they are ethical and they are wise," Carney said. The government takes "great care" when deciding where and whom to strike, he added.

Yet both public and political pressure on the White House has only increased, forcing the administration to announce it will give Congress its memos backing drone warfare. 

Since this debate is now bound to continue, it’s worth keeping in mind — especially in light of Carney’s comment that the strikes are both legal and ethical — that the question of whether drone strikes are legal is entirely separate from the question of whether they are ethical. As Kevin Jon Heller wrote last month:

I still want to resist an idea that seems to underly all of the responses to my post: namely, that we cannot (or at least should not) consider collateral deaths caused by drone strikes to be immoral as long as those strikes were legal.  I strongly disagree with that idea; I think it is possible — indeed important — to insist that the drone program is profoundly immoral even if no individual drone strike ever violates the laws of war.  There is a vast philosophic literature on the difference between legality and morality, which I do not have time to discuss here. … Suffice it to say that very few people are such thoroughgoing positivists that they believe legality and morality are coterminous, even if they disagree dramatically with each other concerning the particulars of the difference. Two obvious examples: “pro-lifers” don’t consider abortion to be moral even though it is legal, while the pro-euthanasia crowd doesn’t consider assisted suicide to be immoral simply because it is almost always illegal.  Both groups simply reject the morality of the laws in question.

 Let’s hope — or, rather, make sure — this gets due coverage in the coming months. 

You can read about my views on this subject here


A beautiful defense of academic freedom

In case you were not already aware, over the past couple weeks my alma mater Brooklyn College has been at the center of a controversial debate regarding academic freedom. In brief, the school’s Political Science Department announced that it would be sponsoring, along with several campus groups, an event on February 7 featuring the Boycott, Divestment, and Sanctions (BDS) movement, which aims to stop what it considers the Israeli oppression of Palestinians. 

The event drew fiery criticism from a range of prominent people. Lawyer Alan Dershowitz claimed the school was engaging in anti-Israel propaganda, and urged for the inclusion of pro-Israel voices, or else cancellation of the event. The New York Daily News agreed with Dershowitz. New York State Assemblyman Dov Hikind called for Brooklyn College President Karen Gould to step down. And perhaps worst of all, state and local lawmakers, such as the hypocritical City Council Speaker Christine Quinn, threatened the school’s funding over the event. 

In response this criticism, Gould strongly defended the school’s right to hold events which include challenging and controversial points of view, noting that sponsorship does not equal endorsement. Brooklyn College professors, such as Corey Robin and Samir Chopraalso came to the defense of their school’s right to academic freedom. And, more broadly, media outlets such as the New York Times and writers such as Glenn Greenwald articulated why attacks on the school were wrong-headed.

But today, perhaps the most prominent figure expected to comment on this story finally has: New York City Mayor Michael Bloomberg. And his remarks are, at least in my opinion, a beautiful defense of academic freedom:

Well look, I couldn’t disagree more violently with BDS as they call it, Boycott Divestment and Sanctions. As you know I’m a big supporter of Israel, as big a one as you can find in the city, but I could also not agree more strongly with an academic department’s right to sponsor a forum on any topic that they choose. I mean, if you want to go to a university where the government decides what kind of subjects are fit for discussion, I suggest you apply to a school in North Korea.

The last thing that we need is for members of our City Council or State Legislature to be micromanaging the kinds of programs that our public universities run, and base funding decisions on the political views of professors. I can’t think of anything that would be more destructive to a university and its students.

You know, the freedom to discuss ideas, including ideas that people find repugnant, lies really at the heart of the university system, and take that away and higher education in this country would certainly die.

As Brian Leiter asks, “Will the other miscreants from Dershowitz to City Councilman Fidler now recant? They’ve been whacked by both the Mayor and the New York Times, as well as the rest of the civilized world.”

We shall see. You can follow Corey Robin for updates.

Catholic hospital reverses itself, says it was morally wrong to argue fetus is not a person

On Jan. 24, I posted about two news articles which revealed that, in an effort to evade a malpractice lawsuit, lawyers representing a group which owns a Catholic hospital in Colorado have been arguing, contrary to Catholic doctrine, that a fetus is not a person. 

Today, weeks after the story attracted widespread attention and criticism, it appears that the group, Catholic Health Initiatives (CHI), has changed its tune:

"In the discussion with the Church leaders, CHI representatives acknowledged that it was morally wrong for attorneys representing St. Thomas More Hospital to cite the state’s Wrongful Death Act in defense of this lawsuit. That law does not consider fetuses to be persons, which directly contradicts the moral teachings of the Church."

It will be interesting to see if and how this announcement will change the outcome of the case. I’ll keep you updated as everything moves forward. 

Catholic hospital argues, contrary to Catholic doctrine, that a fetus is not a person

It appears that even core religious dogmas are changeable when sticking to them might cost money. Take a look at this disturbing story in the Colorado Independent:

Lori Stodghill was 31-years old, seven-months pregnant with twin boys and feeling sick when she arrived at St. Thomas More hospital in Cañon City on New Year’s Day 2006. She was vomiting and short of breath and she passed out as she was being wheeled into an examination room. Medical staff tried to resuscitate her but, as became clear only later, a main artery feeding her lungs was clogged and the clog led to a massive heart attack. Stodghill’s obstetrician, Dr. Pelham Staples, who also happened to be the obstetrician on call for emergencies that night, never answered a page. His patient died at the hospital less than an hour after she arrived and her twins died in her womb.

In the aftermath of the tragedy, Stodghill’s husband Jeremy, a prison guard, filed a wrongful-death lawsuit on behalf of himself and the couple’s then-two-year-old daughter Elizabeth. Staples should have made it to the hospital, his lawyers argued, or at least instructed the frantic emergency room staff to perform a caesarian-section. The procedure likely would not have saved the mother, a testifying expert said, but it may have saved the twins.

The lead defendant in the case is Catholic Health Initiatives, the Englewood-based nonprofit that runs St. Thomas More Hospital as well as roughly 170 other health facilities in 17 states. Last year, the hospital chain reported national assets of $15 billion. The organization’s mission, according to its promotional literature, is to “nurture the healing ministry of the Church” and to be guided by “fidelity to the Gospel.” Toward those ends, Catholic Health facilities seek to follow the Ethical and Religious Directives of the Catholic Church authored by the U.S. Conference of Catholic Bishops. Those rules have stirred controversy for decades, mainly for forbidding non-natural birth control and abortions. “Catholic health care ministry witnesses to the sanctity of life ‘from the moment of conception until death,’” the directives state. “The Church’s defense of life encompasses the unborn.”

The directives can complicate business deals for Catholic Health, as they can for other Catholic health care providers, partly by spurring political resistance. In 2011, the Kentucky attorney general and governor nixed a plan in which Catholic Health sought to merge with and ultimately gain control of publicly funded hospitals in Louisville. The officials were reacting to citizen concerns that access to reproductive and end-of-life services would be curtailed. According to The Denver Post, similar fears slowed the Sisters of Charity of Leavenworth’s plan over the last few years to buy out Exempla Lutheran Medical Center and Exempla Good Samaritan Medical Center in the Denver metro area.

But when it came to mounting a defense in the Stodghill case, Catholic Health’s lawyers effectively turned the Church directives on their head. Catholic organizations have for decades fought to change federal and state laws that fail to protect “unborn persons,” and Catholic Health’s lawyers in this case had the chance to set precedent bolstering anti-abortion legal arguments. Instead, they are arguing state law protects doctors from liability concerning unborn fetuses on grounds that those fetuses are not persons with legal rights.

As Jason Langley, an attorney with Denver-based Kennedy Childs, argued in one of the briefs he filed for the defense, the court “should not overturn the long-standing rule in Colorado that the term ‘person,’ as is used in the Wrongful Death Act, encompasses only individuals born alive. Colorado state courts define ‘person’ under the Act to include only those born alive. Therefore Plaintiffs cannot maintain wrongful death claims based on two unborn fetuses.”

The Catholic Health attorneys have so far won decisions from Fremont County District Court Judge David M. Thorson and now-retired Colorado Court of Appeals Judge Arthur Roy.

Can you say “hypocrisy”?

The case has since been appealed to the state Supreme Court, though, to be sure, the prior rulings are consistent ”with a long-standing interpretation by state courts that define ‘person’ under the Wrongful Death Act to include only those born alive.”

You can read more in the Denver Westward News.

Is secularism hostile towards religion?

J. Brent Walker of the Baptist Joint Committee argues on the Huffington Post that the principle of separation of church and state does not outright ban religion from playing some role in politics, but rather provides citizens the comfort of knowing government will not push religion on them; that government will remain neutral on the subject.

The First Amendment requires, and we should be happy to embrace, a “secular” government in the sense that it is prohibited from promoting religion or taking sides in religious disputes, favoring one over another. It should and must be neutral toward religion.

A secular government does not mean it is hostile to religion. Nothing could be farther from the truth. The institutional separation of church and state does not mean the segregation of religion from politics nor does it strip the right of people of faith to speak forcefully in the public square. It means only that government cannot pass laws that have a primary purpose or effect that advances religion. Religious speech in the public square and even some government venues is commonplace. Examples abound. One need only to look at Tuesday’s planned Presidential Inaugural Prayer Service. The president, vice president, dignitaries and Americans of diverse faiths will gather to celebrate the inauguration through prayer, readings and musical performances. And at the inauguration itself, an invocation and benediction will be offered. That doesn’t sound like religion is getting short shrift or that the public square is naked. Actually, it is dressed to the nines.

Walker is correct: secularism allows, and one could argue encourages, people to promote and defend their religious or other views in the public square. It also allows elected officials who are religious to be guided in their profession by their religious beliefs. Barring them from doing so would be both immoral and impractical. In this way, secularism is not hostile towards religion.

Yet few people seem to realize that the lack of separation between religion and politics poses a threat to the institutional separation of church and state. If lawmakers are making policy decisions based on their religious beliefs — especially as often as they do in these highly religious United States — then government is not truly secular. In this way, I think it’s fair to say that secularism is unfriendly towards religion.

To be clear, I do not think there is a problem with the lack of separation between religion and politics. As I said, it would be both immoral and impractical to ask our elected officials to leave their religious beliefs at their office door each morning. Rather, I think there is a problem with elected officials not realizing that making decisions based on religion is not necessarily wise. 

All of that aside, Walker goes on to make an important point which is not often heard. 

Yes, our culture can be crude and some people are indifferent or hostile to religion. But the answer is not to malign the separation of church and state, which would do away with religious freedom and give government the job of promoting religion. Jefferson’s radical Virginia statute created a vital marketplace for religion that must be based on voluntary belief, not government assistance. It is for us — people of faith and religious institutions, like the church — to take up the task of making our religion winsome to the world and count on government to do no more than to protect our right to do so.

In other words: those concerned with the fact that religion has taken a beating in the public square the last ten years (say, due to the New Atheists) should not attack seperation of church and state. They should try to defend their religious beliefs. 

Good luck. 

The importance of local activism

Hey, look, I’m in the newspaper! The Deseret News, to be exact, in an article focusing on states as prime battlegrounds for political battles over religious freedom.

"I try to tell our people, ‘You might think that what’s going on in Congress right now is the most important thing right now, but it’s absolutely not,’" said Michael De Dora, public policy director for the Center for Inquiry, a secularist group the advocates against government involvement in religion. "You need to pay attention to what’s going on at the school board, city hall and state levels because that’s where things are happening."

That’s true. If you are interested and have some time to devote to political activism, think local. There’s a lot that can be done, and probably less people trying to do it than you imagine. Give them a hand.  You never know what could come of it. 

Legality of drones does not justify their use

Kevin Jon Heller, writing on the blog Opinio Jurisrecently did a great job of making the important point that while the U.S. government might be able to provide some legal justification for the continued use of drone strikes abroad, that would be different than providing a moral justification. Replying to responses on an earlier post, Heller writes: 

I still want to resist an idea that seems to underly all of the responses to my post: namely, that we cannot (or at least should not) consider collateral deaths caused by drone strikes to be immoral as long as those strikes were legal.  I strongly disagree with that idea; I think it is possible — indeed important — to insist that the drone program is profoundly immoral even if no individual drone strike ever violates the laws of war.  There is a vast philosophic literature on the difference between legality and morality, which I do not have time to discuss here. … Suffice it to say that very few people are such thoroughgoing positivists that they believe legality and morality are coterminous, even if they disagree dramatically with each other concerning the particulars of the difference. Two obvious examples: “pro-lifers” don’t consider abortion to be moral even though it is legal, while the pro-euthanasia crowd doesn’t consider assisted suicide to be immoral simply because it is almost always illegal.  Both groups simply reject the morality of the laws in question.

You can read about my views on this subject here

"Why Tolerate Religion?" symposium in D.C.

As I’ve previously said, I try not to concern this blog, which is more focused on my personal interests, with my professional work at the Center for Inquiry. However, there is some overlap between my personal interests and professional work, and every so often I share Center for Inquiry-related things on this blog based on the idea that I think my readers would find them interesting. I think this symposium on freedom of religion and conscience, to be held this April 27 in Washington, D.C., fits the bill:

Should a corporation operated by religious believers be exempt from a federal rule mandating contraceptive coverage for employees, while an organization run by nonreligious persons is not? Should an employee who objects to performing certain tasks on the basis of their religion be accommodated, while objections by a nonreligious employee are ignored? Should a religious organization receiving government funding be allowed to hire only adherents of their particular worldview, while a secularist organization cannot do the same?

In cases like these, religious conscience has traditionally been considered to provide a legitimate exemption from standing laws, whereas nonreligious commitments generally have not. But in his controversial new book Why Tolerate Religion? philosopher and legal scholar Brian Leiter argues that governments are wrong to single out religion and religious demands as deserving any special legal protection. Leiter contends that the reasons for tolerating religion are not specific to religion, and instead apply to all claims of conscience—and that governments are not required to grant exemptions of anykind, religious or otherwise, from laws that promote the general welfare.

To examine this contentious issue, the Center for Inquiry is proud to host a day-long symposium on April 27, 2013, at Washington, D.C.’s Woolly Mammoth Threatre. Speakers include Brian Leiter, Jacques Berlinerblau, Caroline Mala Corbin, Wendy Kaminer, Ronald A. Lindsay, Barry Lynn, and John Shook. 

You can find more information, including registration details, here.

Decency, as required by law

In the wake of Hurricane Sandy, stories are emerging that some New York City residents did not act in the most ethical of ways. Consider this example:

On Staten Island, according to several news accounts, a woman named Glenda Moore tried to flee the storm on Monday by driving herself and her sons to safety in their blue Ford Explorer. But the vehicle got trapped in the swirling waters, so Ms. Moore unbuckled the two boys — Connor, 4, and Brandon, 2 — to head for dry land. They got separated from her, and were swept away. Battling water and wind, Ms. Moore frantically knocked on neighbors’ doors asking for help, but her pleas were ignored. On Thursday, the boys’ lifeless bodies were found nearby.        

Which has spurred St. Thomas University law professor Jay Sterling Silver to propose that a new law might make some bad samaritans act decently:

A sensible statute might read like this: “Any person who knows that another is in imminent danger, or has sustained serious physical harm, and who fails to render reasonable assistance shall be fined up to $5,000, imprisoned for up to three months, or both.” Civil liability could also be established, as in other countries.

A duty to help would not require bystanders to endanger themselves or provide help beyond their abilities; it could simply require warning someone of imminent danger or calling 911. It wouldn’t bring back the two boys, but it would require us to accept our fundamental moral duty to help those in grave peril.        

But Jess Coleman isn’t buying it:

Whether it was in response to Prohibition or the recent war on drugs, Americans have long rejected government efforts to alter their moral code. Indeed, as the author C. S. Lewis once said, “You cannot make men good by law.”

Mandating that bystanders take action in cases of emergency would in effect diminish the “moral duty” Mr. Silver believes that it will create, and instead replace it with a legal duty.

If we are to extend Mr. Silver’s view that the law is a powerful moral tool, why not make it law that high school students read a certain number of books a year, or criminalize certain curse words?

We would all benefit from a better, stronger display of moral duty. But true morality can come only from within, and that requires experiencing the bad as well as the good.

Coleman is correct that laws requiring citizens to pursue certain actions do not necessarily cultivate their senses of moral duty. Legislating morality does not always work perfectly. But that doesn’t mean legislating morality is a waste of time. 

In this case, a law punishing people for not helping others whatsoever in emergency circumstances could still be just given that any sensible person in the same situation would help, and society has good reason to make examples of those who don’t. Such a law might not cultivate a person’s sense of moral duty in any immediate way, but it would, at the least, push not just the person who didn’t act, but in fact all members of society to contemplate their moral duties — in which case, similar situations might occur less often going forward.