Archive for the ‘Understanding Justice’ Category

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Forgiveness – Romano Guardini

January 7, 2014
Christ neither attempted to withdraw from the terrible rain, nor did he take personal offense; he recognized the injustice for what it was: an offense against God. He sealed the divine forgiveness he had come to bring by his own act of pardoning, offering his Father as expiation for humanity's sin, his own acceptance of the injustice heaped upon him: "Father, forgive them, for they do not know what they are doing." And now we touch bottom: God's forgiveness did not occur as a mere pardon, but came as the result of Christ's expiation. He did not cancel mankind's sin, but reestablished genuine justice. He did not simply tear up man's frightful debt, but repaid it -- with his own sweat and blood and tears. That is what Christian salvation means, and it is no isolated incident deep in the past on which we are still capitalizing, but the foundation for our whole Christian existence.

Christ neither attempted to withdraw from the terrible rain, nor did he take personal offense; he recognized the injustice for what it was: an offense against God. He sealed the divine forgiveness he had come to bring by his own act of pardoning, offering his Father as expiation for humanity’s sin, his own acceptance of the injustice heaped upon him: “Father, forgive them, for they do not know what they are doing.” And now we touch bottom: God’s forgiveness did not occur as a mere pardon, but came as the result of Christ’s expiation. He did not cancel mankind’s sin, but reestablished genuine justice. He did not simply tear up man’s frightful debt, but repaid it — with his own sweat and blood and tears. That is what Christian salvation means, and it is no isolated incident deep in the past on which we are still capitalizing, but the foundation for our whole Christian existence.

Another reading selection from The Lord … “Understanding of Christ requires a complete conversion, not only of the will and the deed, but also of the mind. One must cease to judge the Lord from the worldly point of view and learn to accept his own measure of the genuine and the possible; to judge the world with his eyes. This revolution is difficult to accept and still more difficult to realize, and the more openly the world contradicts Christ’s teaching, the more earnestly it defines those who accept it as fools, the more difficult that acceptance, realization. Nevertheless, to the degree that the intellect honestly attempts this right-about-face, the reality known as Jesus Christ will surrender itself. From this central reality, the doors of all other reality will swing open, and it will be lifted into the hope of the new creation. — Romano Guardini, The Lord, p. 629

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The next to the last request of the Pater Noster runs: “And forgive us our debts as we forgive our debtors.” Mark elaborates on the thought: “And when you stand up to pray, forgive whatever you have against anyone, that your Father in heaven may also forgive you your offenses” (11:25). And Matthew adds directly to the words of the prayer: “For if you forgive men their offenses, your heavenly Father will also forgive you your offenses. But if you do not forgive men, neither will your Father forgive you your offenses” (Matthew 6:14-15). Thus God’s forgiveness of our sins depends upon our forgiveness or refusal to forgive others for the injustices they have committed against us.

After Jesus has spoken of fraternal, mutual correction, the text continues: “Then Peter came up to him and said, `Lord, how often shall my brother sin against me, and I forgive him? Up to seven times?’ Jesus said to him, `I do not say to thee seven times, but seventy times seven’ ” (Matthew 18:21-22). Forgiveness should be no occasion, but our habitual attitude towards others.

To drive this fundamental point home, Jesus illustrates his teaching with the story of the king who audits his accounts. Finding an enormous deficit in the books of one of his administrators, he commands that his property, family and person be placed under custody until the debt it paid. The man begs for mercy, and his master, who is magnanimous, cancels the debt.

But the administrator has hardly left the room when he encounters a colleague who owes him an incomparably smaller sum. He seizes him, and deaf to excuse or plea, drags him the debtors’ court — in those days notorious for its harshness. The king learns what has happened, and angered by the man’s heartlessness, submits him to the same fate he has inflicted upon his debtor. “So also my heavenly Father will do to you, if you do not each forgive your brothers from your hearts” (Matthew 18:35).

Earlier in the same chapter Christ discusses what is to be done with one who refuses to see or admit his wrongs. It is up to you to straighten him out. If it is you he has injured, you must not simply ignore him in a mood of irritated moral superiority, but must go to him and do everything possible to make him understand and willing to clear things up.

This will not be easy. If you come to him condescendingly, or pedantically, or in the role of the ethically superior, he will only consider you presumptuous. His opposition to your claims will entrench itself against the real injustice of your Pharisaic attitude, and the end of it all will be worse than the beginning.

Therefore, if you wish to obey Christ, you must first free yourself of all righteous indignation. Only if you forgive entirely, can you contact the true self of the other, whom his own rebelliousness is holding back. If you can reach this better self, you have a good chance of being heard, and of winning your brother. This then the great doctrine of forgiveness on which Jesus insists as one of the fundamentals of his message. If we wish to get to its root, we must dig our way there question by question.

What Must We Overcome In Ourselves To Be Capable Of Genuine Forgiveness?
First of all, deep in the domain of the purely natural, the sentiment of having to do with an enemy. This sense of the hostile is something animals have, and it reaches as far as their vulnerability. Creatures are so ordered that the preservation of the one depends on the destruction of the other. This is also true of fallen man, deeply enmeshed in the struggle for existence. He who injures me or takes something valuable from me is my enemy, and all my reactions of distrust, fear, and repulsion rise up against him. I try to protect myself from him, and am able to do this best by constantly reminding myself of his dangerousness, instinctively mistrusting him, and I, prepared at all times to strike back….

Here forgiveness would mean first that I relinquish the clear and apparently only sure defense of natural animosity; second, that I overcome fear and risk defenselessness, convinced that the enemy can do nothing against my intrinsic self. Naturally, this does not mean that I close my eyes to danger, and it is self-understood that I do everything in my power to protect myself:  I must be watchful and resolute. But the crux of the matter is forgiveness, a profound and weighty thing. Its prerequisite is the courage that springs from a deep sense of intimate security, and which, as experience has proved, is usually justified, for the genuine pardoner actually is stronger than the fear-ridden hater

The desire for revenge is slightly more `human.’ It is not a response to mortal danger, but to the danger of loss of power and honor. The fact that the other was able to damage me proves that he was stronger than I; had I been what I should be, he never would have dared to attempt it. The impulse to retaliate aims primarily at reestablishing my self-respect by humiliating my enemy. I would rise by the other’s fall….

To forgive him would mean to renounce this satisfaction, and necessitates a self-respect independent of the behavior of others because it lives from an intrinsic honor that is vulnerable. Again experience has shown that such an attitude better protects my reputation, for my freedom blunts the point of the insult, thus disarming the aggressor.

One step closer to spiritual value is the desire for justice: order not of things and forces, but of human relations. That the individual receive according to his deserts and remain with these in the proper relationship to others and their deserts; that is justice. When someone does me an injustice, he disturbs that order there where it most vitally affects me, in myself. This is what arouses me.

In the elementary desire for justice there is much that is simply primitive fear, for the just order is primarily protective. Wounded pride and desire to avenge it are different; they are satisfied when they can take justice into their own hands. Fundamentally, what they demand is treatment conforming to one’s personal dignity, and its simplest expression is the ancient law, “eye for eye, tooth for tooth” (Exodus 1:24). What the other has done to me shall be done to him; thus the wrong will be atoned, and order reestablished.

Here forgiveness would mean renouncing the right to administer justice oneself. To leave it to the authorities, to the state, to destiny and ultimately to God is the beginning of self-purification. But pardon really worthy of the name is much more: it is relinquishment of the wish to see punishment meted out at all. Quitting the questionable territory of desired pain for pain, damage for damage, atonement for guilt, one enters the open country of freedom.

There too order exists, but of a different kind. It is not the result of weights and measures, but of creative self-conquest. Magnanimity, man’s premonition of that divine power known as grace, rises to the surface. Forgiveness reestablishes order by acquitting the offender and thereby placing him in a new and higher order of justice.

But why should we act thus? The question really deserves to be posed. Why forgive? Why not simply establish justice? Wouldn’t it be better? One answer is: forgiveness is more human. He who insists on his rights places himself outside the community of men. He would be judge of men rather than one of them, sharer of the common fate. It is better to remain within the circle of humanity and broaden heart and mind.

Prerequisite is an innate altruism, and if we know people who have it, we also know how often it is accompanied by negative characteristics, by weakness, lack of dignity indiscriminate negligence, disregard for truth and justice, even sudden outbursts of cruelty and vengefulness….

It has been pointed out that in reality, insistence on justice is servitude. Only forgiveness frees us from the injustice of others. To understand this attitude too requires a certain characteristic impersonality towards oneself and others; again with its negative counterpart: the tendency to disregard the rights and dignity of the individual. Much more could be said about the nobility of forgiveness and its accompanying values: generosity and magnanimity, and so on. This would all be correct, but still far from the pith of the New Testament’s teaching.

Christ’s exhortations are founded neither on social nor ethical nor any other worldly motives. We are told, simply, to forgive men as our Father in heaven forgives us. He is the primary and real Pardoner, and man is his child. Our powers of forgiveness are derived from his.

We beg the Father to forgive us as we forgive those who have, been unjust to us. When you begin to pray, says the Lord, and suddenly remember that you have a grudge against someone, forgive him first! If you do not, your unforgiveness will step between you and the Father and prevent your request from reaching him. This does not mean that God forgives us because kindness to our neighbors renders us `worthy’ of his generosity. His pardon is pure grace, which is not founded on our worthiness, but creates it. A priori, however, is the opening of the heart for divine magnanimity: out readiness to forgive “our debtors.” If we close it instead, we shut God’s forgiveness out.

Briefly, forgiveness is a part of something much greater than itself: love. We should forgive, because we should love. That is why forgiveness is so free; it springs from the joint accomplishment of human and divine pardon. Like him who loves his enemies, the pardoner resembles the Father “who makes his sun to rise on the good and the evil, and sends rain on the just and the unjust” (Matthew 5:4)

Pardon reestablishes Christian fraternity and the sacred unity of the I-you-he (God). He who reasons from this height considers his neighbor’s welfare precious, and to know him in the wrong is painful, as it is painful to God to witness a man’s fall from his divine love. And just as God longs to win the lost one back (possible only through his aid in the form of grace), the Christian longs to help his brother to return to the community of sacred life.

Christ is forgiveness incarnate. We search in vain for the slightest trace of any reaction of his incompatible with pardon. Nothing of fear in any form is in him. His soul knows itself invulnerable, and he walks straight into danger, confident “because the Father is with me” (John 16:32).

Vengeance is farthest of all from his thoughts. He is forced to endure unimaginable injustices, not only against his human honor, but also blasphemously directed against the honor of his Father. His sacred mission is called a work of Satan! His anger does flare, but it is divine wrath that blazes at the sacrilege, not desire for revenge. His self-confidence is untouched by the behavior of others, for he is entirely free.

As for the weighing and measuring of justice, Christ came precisely for this, but he elevated it to the unspeakably higher, plane of grace beyond weight and measure, dissolving man’s own injustice in the divine solvent of genuine pardon. His message could not have been more personally delivered. He not only taught divine forgiveness, but demonstrated it on himself.

All man’s sinfulness against God gathered and precipitated blood upon the head of the “sign that shall be contradicted” (Luke 2:34). And Christ neither attempted to withdraw from the terrible rain, nor did he take personal offense; he recognized the injustice for what it was: an offense against God. He sealed the divine forgiveness he had come to bring by his own act of pardoning, offering his Father as expiation for humanity’s sin, his own acceptance of the injustice heaped upon him: “Father, forgive them, for they do not know what they are doing.”

And now we touch bottom: God’s forgiveness did not occur as a mere pardon, but came as the result of Christ’s expiation. He did not cancel mankind’s sin, but reestablished genuine justice. He did not simply tear up man’s frightful debt, but repaid it — with his own sweat and blood and tears. That is what Christian salvation means, and it is no isolated incident deep in the past on which we are still capitalizing, but the foundation for our whole Christian existence.

To this day we live from the saving act of Christ, but we cannot remain saved unless the spirit of salvation is actively realized in our own lives. We cannot enjoy the fruits of salvation without contributing to salvation through love of neighbor. And such love must become pardon when that neighbor trespasses against us, as we constantly trespass against God.

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Justice and That Which Surpasses It – Romano Guardini

January 6, 2014
Thus the return of the younger son introduces an hour of destiny for his older brother. The parable adds nothing to the description of the incident, but it is self-evident that he is faced with a fundamental decision: if he insists upon justice only, he will force himself into a position of narrowness that will curtail his own liberty of heart and spirit. On the other hand, if he accepts the truth in his father's words, he will understand the true nature of conversion and pardon, enter into the kingdom of creative freedom that lies above justice

Thus the return of the younger son introduces an hour of destiny for his older brother. The parable adds nothing to the description of the incident, but it is self-evident that the older brother is faced with a fundamental decision: if he insists upon justice only, he will force himself into a position of narrowness that will curtail his own liberty of heart and spirit. On the other hand, if he accepts the truth in his father’s words, he will understand the true nature of conversion and pardon, enter into the kingdom of creative freedom that lies above justice

A reading selection from The Lord,  Guardini’s eternal masterpiece: “What makes this book truly a classic is that, like classics, it never loses it touch. Guardini (remember this is before Vatican II) has a way of delving into the heart and mind of Jesus with deep reverence. It’s not a psychology of Jesus which he says no one can write anyways. But he reverently explores the life and words of Jesus in the gospels and with a clarity that is startling lays out the deep meaning of Jesus words. Sometimes, what he says is so rich in meaning, I have to catch my breath and sit back and try to let his words sink in.” You will never read a better book about Jesus.

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Following the custom of the Orient, Jesus often employed parables, that favorite form of speech among peoples who think figuratively. The parable stimulates the imagination, which in turn illumines the sense behind the suggested image. However, that sense is not necessarily univocal [vocab: of a word or term having only one possible meaning; unambiguous.], as is the abstract teaching, but complexly interwoven into life and the situation of the moment.

Vital truth speaks here in a homophony of many voices, theme and accompaniment. In this form it is flexible, now stressing one note, now another. Thus the parable is a fluctuating, mobile thing and difficult to pin down. In a barren hour it remains dumb, indeed, it may even be an obstacle to understanding, serving that dark mystery touched upon in Matthew thirteen: “Hearing you will hear, but not understand; and seeing you will see, but not perceive.”

We have heard most of the parables of the New Testament many, times, usually so enveloped in the Lord’s authority that unconsciously we accept them without giving much thought to our personal reactions. This one manifestly contains a complicated, contrary meaning, that must work itself out `dramatically’ in word and reaction, sense and opposing sense. Only in the clash of thesis and antithesis, is its full clarity released.

Two often heard but by no means simple parables are those of the owner of the vineyard and the prodigal son, the latter to be found in Luke fifteen. A man has two sons. One day the younger demands his heritage (possibly from the maternal side). He is of age, and the father is forced to comply. The young man goes abroad with the money and in a short time has squandered it entirely.

Reduced to bitter poverty and unable to find better employment, he gratefully accepts the job of swineherd on the estate of a wealthy landowner. (We must not overlook the odium Hebrews attached to this service, considering the animals unclean also from a religious point of view) His lot is such a poor one, that the young man often begrudges the animals their coarse fare, and gradually he realizes what folly it was to leave home, where even his father’s hired men lived better than he, for apparently his father is a just man, and takes proper care of those who work for him.

Homesick and conscious of having failed his father as well as himself, he decides to return home and ask to serve there as a field-hand , since he has forfeited his right to be treated as a son. But upon his return he is received in a manner contrary to all expectations. His father hurries to meet him, replying to his words of self-condemnation with signs of love, and showering him with the attentions he would lavish upon an honored guest.

Soon the whole house rings with rejoicing. When the elder son returns from the field and demands the reason for the festivity, he is told, and accordingly, is filled with indignation. He points out to his father how loyally he has served him, how little appreciated he has been, and how the parental treatment of the wastrel cries to heaven for justice.

“But he said to him, `Son, thou art always with me, and all that is mine is thine; but we were bound to make merry and rejoice, for this thy brother was dead, and has come to life; he was lost, and is found.”

How does the incident affect us? If we are not influenced by the moral pointed out by sermon and instruction, unconsciously we agree with the elder brother. Possibly he is venting an old grievance. Perhaps the younger son was a talented, charming person who stole the favor of all he met. He was imaginative and high-spirited, quick to receive and quick to give. Bored by the tedious labor at home he had left it to seek adventure. Probably the older son was the exact opposite: serious and conscientious.

Perhaps he was not able to express himself well, was awkward and abrupt in his manner, so that he was constantly put in the shade by his younger brother, who was everybody’s favorite. Yet it was the elder son who had to bear that responsibility and the main burden of the estate. The father had probably never thought of pleasing this undemonstrative, sober offspring who seemed so entirely absorbed by his work, and he never would have asked for favors, whereas the younger one took everything that came his way as light-heartedly as he scattered gifts.

How otherwise are we to explain the bitterness of the complaint that not even the smallest animal was ever slaughtered for his pleasure and that of his friends? When his younger brother set out into the world with half of their heritage, he left behind him one heart filled with rancor and disdain. Now the spoiled profligate is back, penniless only to be received like a prince! The father’s reply to his elder’s objections fails to impress.

But what if the father had agreed with him? If he had said to the homecomer: “Go your way! You’ve had what you wanted! “Then justice would have been restored. The older brother would have been in satisfied. Or would he? Completely? If he was a good man, certainly not. The sight of his brother would have robbed his peace. Contrary to all feeling of `justice” a not to be stilled small voice would have insisted that somehow he had missed a sacred opportunity.

Justice is good. It is the foundation of existence. But there it something higher than justice, the bountiful widening of the heart to mercy. Justice is clear, but one step further and it becomes cold. Mercy is genuine, heartfelt; when backed by character, it warms and redeems. Justice regulates, orders existence; mercy creates. Justice satisfies the mind that all is as it should be, but from mercy leaps the joy of creative life.

That is why it is written that heaven rejoices more over one sinner who does penance than over a hundred just who have no need of it. High above all the stupidity and evil mankind arches the spacious dome of mercy. When justice enters here insisting on its narrow rights it becomes repugnant. We catch the undertone in the gently disdainful words about the ninety-nine “just”; that heap of righteousness so excellent and respectable, is incomparably less than one penitent over whom the angels can rejoice (Luke15:7).

If we look closely we begin to wonder whether perhaps justice’s protest isn’t in reality directed against penance. Does the person stiff with justice really want the sinner converted? Doesn’t he somehow feel that he is thus escaping his just deserts, endangering the existent order? Wouldn’t he prefer to see him remain locked in sin and forced to bear the consequences? Perhaps he considers the return to grace a more or less underhanded trick played at the expense of justice.

What would things come to if everyone like that scamp there, after wasting half a fortune, extricated himself from the affair by turning virtuous! And actually, the true conversion does break the bounds of mere justice. It is a creative new beginning — in God, as theology teaches us, since the sinner alone and unaided is incapable of true repentance.

According to the logic of evil, sin produces blindness, which leads to fresh sin, which in turn leads to deeper blindness, ultimately ending in complete darkness and death. Conversion breaks his vicious circle of cause and effect, and is thus already grace. If there is seraphic joy in heaven over the conversion of a single sinner, it is because that conversion is a victory of grace.

To the so-called pure sense of justice, conversion is a scandal. For justice runs the risk of not being able to see beyond its borders to the realm of love and creative liberty where the renascent forces of the human heart and divine grace are at home. Woe to him who insists on living in mere justice! Woe to the world in which justice alone reigned!

But the truth is even stranger than this. Justice itself would suffocate if left isolated. What does justice consist of? Obviously, of giving each his due. It is not universal equality, but a vital order, taking into consideration the diversity of people and things. But to know what a man really deserves, one would have to be able to see to the bottom of his soul. Not having this capacity, if I wish to avoid new injustice, I can only give him the benefit of the doubt and regard him with the eyes of love.

Only in the light and freedom created by love can the one under examination unfold to his full stature. Justice is unable to fulfill itself through its own strength; it needs the conditions created by love to come into its own. Summum jus, summa injuria is the old maxim: Justice supreme may be supreme injustice.

Thus the return of the younger son introduces an hour of destiny for his older brother. The parable adds nothing to the description of the incident, but it is self-evident that he is faced with a fundamental decision: if he insists upon justice only, he will force himself into a position of narrowness that will curtail his own liberty of heart and spirit. On the other hand, if he accepts the truth in his father’s words, he will understand the true nature of conversion and pardon, enter into the kingdom of creative freedom that lies above justice

This parable was probably inspired by an actual incident. Perhaps Jesus himself had been touched by the good intentions of a “sinner” and drawing him to him, had scandalized the just. It might been Zacheus, who like all publicans, was considered an enemy the people, and the parable Jesus’ reply to the general indignation against him.

A similar incident must have suggested the parable of the landed proprietor and the day laborers (Matthew 20:13-15). Early in the morning the owner goes to the market-place where the unemployed gather, and hires several men to work in his vineyards for the agreed wage of a denarius a day. In the course of the day he revisits the spot several times, each time engaging additional laborers, whom promises a suitable wage. In the evening he pays off his hirelings giving each a denarius — also the late arrivals. Seeing this, those who had come earlier hope for advantageous treatment, and disappointed to receive the same wage as the others, protest. But the landowner only replies: “Friend, I do you no wrong. Did we not agree on a silverpiece? Take what is yours and go! I shall pay this late-comer as I see fit: the same to you. “Have I not a right to do what I choc Or art thou envious because I am generous?” (Matthew 20: 13-15).

Again our first reaction is, they are right to protest! Perhaps before the law, for they will certainly receive only what promised them, but simply for the sake of justice. For if those who have worked but a few hours receive the same as those who have toiled all day, their wage is devaluated. And the landowner’s answer is anything but placating: Can’t I do with my money as I please? No, you cannot! There is a law concerning your money and your power, the law of justice. You and your property are subject to this higher law, and we accuse you before it!

Nevertheless, the proprietor’s unwelcome reply hits the nail on the head. We begin to understand when we realize that he represents God. The parable means simply this: He who distributes work and wage and the various destinies of men is the Lord of all existence, God. He is the Creator, the Omnipotent, the Primal One. Everything that is, is his. There is no law higher than he. His decision is always valid. Do we agree? Sincerely? No. Even from God we demand justice. We expect his omnipotence to be curbed by his justice.

This expectation is not irreligious. There is a whole book in the Bible on the self-assertion of justice in the face of God: the Book of Job. Job knows he has not sinned, at least not so as to have deserved anything like the terrible afflictions that have been sent him. Therefore he sees himself a victim of injustice. Job’s friends appoint themselves his judges and declare that he must have sinned, for such misfortune can only be punishment.

However, the palaver comes to a sudden end; they are disdainfully silenced by God himself, who personally appears to Job, wrapped in the mantle of living mystery, whereupon all discussion ceases. What does this mean? That we attempt to call God to order in the name of justice only as long as we are intrinsically ignorant of who he is.

As soon as the essence of his holy being even begins to dawn on us, our objections wither away. For everything comes from God, has its roots in God. .justice is not a law superior to everything, God included, God is justice. As soon as justice ceases to be considered a thing in itself, it becomes a `crystallization’ of the living, divine essence. Never can it be an isolated platform from which man can confront his God; he who stands on its stands `within’ God, and must learn from him who is more than justice what living justice means.

All this cannot be stated abstractly: that God not only can but may do as he likes with his `money’; that what he does is without exception or reservation good and just, regardless of how human heart or human head may react. More: that justice itself begins to exist truly only when rooted in divine volition; that it is none other than the expression of God’s sovereign will, and comprehensible only in the degree that the believer approaches the God of whom these things are true.

The parable culminates in the words: “Or art thou envious because I am generous?” Divine liberty surpassing all judgment, fact that there is no higher instance to invoke; the whole is the mystery of God’s goodness, of his bounty and love. The New Testament has another word for it: grace. Man is warned against locking himself in justice rather than opening his heart to the goodness of divine reason and action; he is told to surrender to grace, which is higher than justice, if he would be free.

A curious thing happens to the spokesman of justice in this parable. He is accused of envy. What a reply to one convinced that he has suffered an injustice! Instead of hearing as he expected, that untamperable right will be restored, he must learn that his real motive for intervening was inferior! Yet if we accept Scripture as God’s holy word, we learn a strange rule about human nature: that when it becomes necessary to invoke justice, that irreproachable value and crystalline motive, almost always something is rotten in Denmark. Too often ‘justice’ is used as a mask for quite different thing

Human justice is highly problematical. It is something man should strive for but not lean upon. Perhaps we come closest to the true sense of the New Testament if we say that genuine justice is not the beginning but the end, and that the other justice so pompously displayed as the fundament of morality is a dubious thing. True justice is the fruit of bounty, and practicable by man only after he has been initiated into the school of divine love where he has learned to see people as they really are, himself included. Before one can be just, one must learn to love.

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Discussing Prop 8

August 17, 2010

A Dubious Proposal

I’ve been posting to an Amazon discussion forum recently concerning the recent overturn of Prop 8 by a Judge Walker out in California. Essentially I’ve been following some advice by Dr. Edward Feser, whose blog I recently found. Feser summarizes the issue here:

“Judge Walker’s decision, he tells us, is based on the principle that the state ought not to “enforce ‘profound and deep convictions accepted as ethical and moral principles’” or to “mandate [its] own moral code.” But that is, of course, precisely what Walker himself has done. His position rests on the question-begging assumption that “same-sex marriages” are no less true marriages than heterosexual ones are, and that the only remaining question is whether to allow them legally. But of course, whether “same-sex marriages” really can even in principle be “marriages” in the first place is part of what is at issue in the dispute. The traditional, natural law view is that marriage is heterosexual of metaphysical necessity. Rather than staying neutral between competing moral views, then, Walker has simply declared that the state should stop imposing one moral view – the one he doesn’t like – and should instead impose another, rival moral view – the one he does like.”

So to a merry band of atheists and Homosexualists I have posed a question to advance a theory of Dr. Feser’s. He advises:

“To concede even for the sake of argument that such behavior (Homosexuality) is morally unobjectionable is effectively to concede the whole issue. Conservative moralists have always upheld the norm that sexual behavior and marriage ought to go together – both because sex naturally results in children and children need the stability of marriage, and because sexual passions are inherently unruly and need to be channeled in the socially constructive way marriage provides. To allow that sexual behavior need not be heterosexual is implicitly to allow that marriage too need not be heterosexual. Pragmatic social-scientific arguments about the possible negative long-range social effects of allowing “same-sex marriage” can only seem anticlimactic in the face of such a concession – heartless nitpicking at best, and the rationalization of prejudice at worst…. Moreover, challenging the moral legitimacy of homosexual behavior requires a moral theory grounded in a classical essentialist metaphysics, one in which what is good for us is determined by a fixed human nature or essence and in particular by the natural ends of our various faculties.”

I would offer the paper I recently featured by Fr. José Noriega titled “Homosexuality: The Semblance Of Intimacy” and John Paul II’s Theology of the Body and the metaphysics of a Christian anthropology as a defense against the moral legitimacy of Homosexualism. A succinct exposition of those sources can also be found in Andrew J. Sodergren’s essay which I refer to later. But rather than challenge my audience with a religious/metaphysical defense (which I assure you would only earn me catcalls), I used an argument that Dr. Michael Sandel had advanced in his book “Justice.” (You can find a series of reading selections here.)

Sandel sets up is proposition here:

“Can you decide whether the state should recognize same-sex marriage without entering into moral and religious controversies about the purpose of marriage and the moral status of homosexuality? Some say yes, and argue for same-sex marriage on liberal, nonjudgmental grounds: whether one personally approves or disapproves of gay and lesbian relationships, individuals should be free to choose their marital partners. To allow heterosexual but not homosexual couples to get married wrongly discriminates against gay men and lesbians, and denies them equality before the law.

If this argument is a sufficient basis for according state recognition to same-sex marriage, then the issue can be resolved within the bounds of liberal public reason, without recourse to controversial conceptions of the purpose of marriage and the goods it honors. But the case for same-sex marriage can’t be made on nonjudgmental grounds. It depends on a certain conception of the telos of marriage — its purpose or point. And, as Aristotle reminds us, to argue about the purpose of a social institution is to argue about the virtues it honors and rewards.

The debate over same-sex marriage is fundamentally a debate about whether gay and lesbian unions are worthy of the honor and recognition that, in our society, state-sanctioned marriage confers. So the underlying moral question is unavoidable.”

Now many of my interlocutors on the discussion forum refuse to drop their nonjudgmental grounds and come back again and again to arguments of discrimination and fairness. But Sandel explains why the moral question is the correct one:

“To see why this is so, it’s important to bear in mind that a state can take three possible policies toward marriage, not just two. It can adopt the traditional policy and recognize only marriages between a man and a woman; or it can do what several states have done, and recognize same-sex marriage in the same way it recognizes marriage between a man and a woman; or it can decline to recognize marriage of any kind, and leave this role to private associations.

These three policies can be summarized as follows:

  1. Recognize only marriages between a man and a woman.
  2. Recognize same-sex and opposite-sex marriages.
  3. Don’t recognize marriage of any kind, but leave this role to private associations.

Policy 3 is purely hypothetical, at least in the United States; no state has thus far renounced the recognition of marriage as a government function. But this policy is nonetheless worth examining, as it sheds light on the arguments for and against same-sex marriage.

Policy 3 is the ideal libertarian solution to the marriage debate. It does not abolish marriage, but it does abolish marriage as a state-sanctioned institution. It might best be described as the disestablishment of marriage. Just as dis-establishing religion means getting rid of an official state church (while allowing churches to exist independent of the state), dis-establishing marriage would mean getting rid of marriage as an official state function.

The opinion writer Michael Kinsley defends this policy as a way out of what he sees as a hopelessly irresolvable conflict over marriage. Proponents of gay marriage complain that restricting marriage to heterosexuals is a kind of discrimination. Opponents claim that if the state sanctions gay marriage, it goes beyond tolerating homosexuality to endorsing it and giving it “a government stamp of approval. “The solution, Kinsley writes, is “to end the institution of government-sanctioned marriage,” to “privatize marriage.” Let people get married any way they please, without state sanction or interference.

Let churches and other religious institutions continue to offer marriage ceremonies. Let department stores and casinos get into the act if they want. . . . Let couples celebrate their union in any way they choose and consider themselves married whenever they want.

And, yes, if three people want to get married, or one person wants — to marry him or herself, and someone else wants to conduct a ceremony and declare them married, let ‘em.

“If marriage were an entirely private affair,” Kinsley reasons, “all the disputes over gay marriage would become irrelevant. Gay marriage would not have the official sanction of government, but neither would straight marriage.” Kinsley suggests that domestic partnership laws could deal with the financial, insurance, child support, and inheritance issues that arise when people co-habit and raise children together. He proposes, in effect, to replace all state-sanctioned marriages, gay and straight, with civil unions.

From the standpoint of liberal neutrality, Kinsley’s proposal has a clear advantage over the two standard alternatives (policies 1 and 2): It does not require judges or citizens to engage in the moral and religious controversy over the purpose of marriage and the morality of homosexuality. Since the state would no longer confer on any family units the honorific title of marriage, citizens would be able to avoid engaging in debate about the telos of marriage, and whether gays and lesbians can fulfill it.

Relatively few people on either side of the same-sex marriage debate have embraced the disestablishment proposal. But it sheds light on what’s at stake in the existing debate, and helps us see why both proponents and opponents of same-sex marriage must contend with the substantive moral and religious controversy about the purpose of marriage and the goods that define it. Neither of the two standard positions can be defended within the bounds of liberal public reason.

Of course, those who reject same-sex marriage on the grounds that it sanctions sin and dishonors the true meaning of marriage aren’t bashful about the fact that they’re making a moral or religious claim. But those who defend a right to same-sex marriage often try to rest their claim on neutral grounds, and to avoid passing judgment on the moral meaning of marriage. The attempt to find a nonjudgmental case for same-sex marriage draws heavily on the ideas of nondiscrimination and freedom of choice. But these ideas cannot by themselves justify a right to same-sex marriage. To see why this is so, consider the thoughtful and nuanced opinion written by Margaret Marshall, Chief Justice of the Massachusetts Supreme Court; in the court’s ruling in Goodridge v. Dept. of Public Health (2003), the same-sex marriage case.

Marshall begins by recognizing the deep moral and religious disagreement the subject provokes, and implies that the court will not take sides in this dispute: Many people hold deep-seated religious, moral, and ethical convictions that marriage should be limited to the union of one man and one woman, and that homosexual conduct is immoral. Many hold equally strong religious, moral and ethical convictions that same-sex couples are entitled to be married, and that homosexual persons should be treated no differently than their heterosexual neighbors. Neither view answers the question before us. “Our obligation is to define the liberty of all, not to mandate our own moral code.”

As if to avoid entering into the moral and religious controversy over homosexuality, Marshall describes the moral issue before the court in liberal terms — as a matter of autonomy and freedom of choice. The exclusion of same-sex couples from marriage is incompatible with “respect for individual autonomy and equality under law” she writes. The liberty of “choosing whether and whom to marry would be hollow” if the state could “foreclose an individual from freely choosing the person with whom to share an exclusive commitment. “The issue, Marshall maintains, is not the moral worth of the choice, but the right of the individual to make it — that is, the right of the plaintiffs “to marry their chosen partner?”

But autonomy and freedom of choice are insufficient to justify a right to same-sex marriage. If government were truly neutral on the moral worth of all voluntary intimate relationships, then the state would have no grounds for limiting marriage to two persons; con-sensual polygamous partnerships would also qualify. In fact, if the state really wanted to be neutral, and respect whatever choices individuals wished to make, it would have to adopt Michael Kinsley’s proposal and get out of the business of conferring recognition on any marriages.

The real issue in the gay marriage debate is not freedom of choice but whether same-sex unions are worthy of honor and recognition by the community — whether they fulfill the purpose of the social institution of marriage. In Aristotle’s terms, the issue is the just distribution of offices and honors. It’s a matter of social recognition.

More than a private arrangement between two consenting adults, Marshall observes, marriage is a form of public recognition and approval. “In a real sense, there are three partners to every civil marriage: two willing spouses and an approving State.” This feature of marriage brings out its honorific aspect: “Civil marriage is at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family.”

If marriage is an honorific institution, what virtues does it honor? To ask that question is to ask about the purpose, or telos, of marriage as a social institution. Many opponents of same-sex marriage claim that the primary purpose of marriage is procreation. According to this argument, since same-sex couples are unable to procreate on their own, they don’t have a right to marry. They lack, so to speak, the relevant virtue…

So when we look closely at the case for same-sex marriage, we find that it cannot rest on the ideas of non-discrimination and freedom of choice. In order to decide who should qualify for marriage, we have to think through the purpose of marriage and the virtues it honors. And this carries us onto contested moral terrain, where we can’t remain neutral toward competing conceptions of the good life.”

These are the questions I posed to the readers of the forum. As I said, many ignored the argument and proceeded with the discrimination/fairness argument which rejects the reasoning that Sandel demonstrates is wanting.

In fact Sandel feels that most arguments about Justice do involve the moral:

“One says justice means maximizing utility or welfare — the greatest happiness for the greatest number. The second says justice means respecting freedom of choice — either the actual choices people make in a free market (the libertarian view) or the hypothetical choices people would make in an original position of equality (the liberal egalitarian view). The third says justice involves cultivating virtue and reasoning about the common good. As you’ve probably guessed by now, I favor a version of the third approach. Let me try to explain why.

The utilitarian approach has two defects: First, it makes justice and rights a matter of calculation, not principle. Second, by trying to translate all human goods into a single, uniform measure of value, it flattens them, and takes no account of the qualitative differences among them.

The freedom-based theories solve the first problem but not the second. They take rights seriously and insist that justice is more than mere calculation. Although they disagree among themselves about which rights should outweigh utilitarian considerations, they agree that certain rights are fundamental and must be respected. But beyond singling out certain rights as worthy of respect, they accept people’s preferences as they are. They don’t require us to question or challenge the preferences and desires we bring to public life. According to these ones, the moral worth of the ends we pursue, the meaning and significance of the lives we lead, and the quality and character of the common life we share all lie beyond the domain of Justice.

This seems to me mistaken. A just society can’t be achieved simply by maximizing utility or by securing freedom of choice. To achieve a Just Society we have to reason together about the meaning of the good life, and to create a public culture hospitable to the disagreements that will inevitably arise.

It is tempting to seek a principle or procedure that could justify, once and for all, whatever distribution of income or power or opportunity resulted from it. Such a principle, if we could find it, would enable us to avoid the tumult and contention that arguments about the good life invariably arouse.

But these arguments are impossible to avoid. Justice is inescapably Judgmental. Whether we’re arguing about financial bailouts or Purple Hearts, surrogate motherhood or same-sex marriage, affirmative action or military service, CEO pay or the right to use a golf cart, questions of justice are bound up with competing notions of honor and virtue, pride and recognition. Justice is not only about the right way to distribute things. It is also about the right way to value things.”

The Catholic case for Heterosexual Marriage is made powerfully by Andrew J. Sodergren, M.S. from the John Paul II Institute for Studies on Marriage and Family here:

“Those who argue that homosexual inclinations are “natural” utilize a problematic understanding of nature that needs to be challenged. This understanding of nature refers to that which is innate and unchosen within a person. “I did not choose to be the way I am.” “I discovered my homosexuality within me.” Moreover, a certain normative quality is attributed to this nature such that it can and should dictate my actions. Nature as such is good, or at least neutral in respect to ethics, so the modern mentality holds that whatever I am naturally disposed to do I should do as long as it does not involve violating the rights of others. 

A Christian anthropology, however, comes to very different conclusions about “nature”. Human nature, in a Christian sense, does also have a normative content to it. As the Congregation for the Doctrine of the Faith says, “There can be no true promotion of man’s dignity unless the essential order of his nature is respected” (CDF, 1975, no. 3). In creating the world, God inscribed a certain order in it. Thus, the true nature of things and their fulfillment can be understood only in light of God’s design. This is especially salient when we are speaking of desires that arise within the human heart for Christian revelation recognizes the reality of original sin. At the start of human history, our first parents rebelled against God’s plan and by their action, brought disorder into the world: “Adam and Eve committed a personal sin, but this sin affected the human nature that they would then transmit in a fallen state” (CCC, no. 404). The Fathers of the Church taught that human nature is one and thus all human beings participate in the same nature. Thus, when our first parents marred their likeness to God through sin, the whole human family was affected by it. Thus, the human nature that each human being inherits is disordered. Original sin is a deprivation of original holiness and justice, but human nature has not been totally corrupted: it is wounded in the natural powers proper to it; subject to ignorance, suffering, and the dominion of death; and inclined to sin – an inclination to evil that is called “concupiscence” (CCC, no. 405).

Every evil in the world is traceable back to this fundamental disruption at the beginning of time. Indeed, another crucial aspect of Christian anthropology is that human nature involves a unity of body and soul such that the human person is not wholly identifiable with either taken separately but exists as a composite of the two. In other words, the body and the soul are intrinsically united. 

The unity of soul and body is so profound that one has to consider the soul to be the “form” of the body: i.e., it is because of its spiritual soul that the body made of matter becomes a living, human body; spirit and matter, in man, are not two natures united, but rather their union forms a single nature (CCC, no. 365).

Therefore, when we say that original sin has wounded human nature, this includes both physical and spiritual effects. In this way, the doctrine of original sin can account for every sort of genetic or biological defect, disease, or disorder as well as all kinds of human suffering and inclinations to do evil. With this understanding of fallen human nature, a Christian anthropology would have no difficulty accommodating research (past or future) implicating a substantial inherited component to homosexuality.

 Clearly, this understanding of original sin is essential when we are speaking of the moral quality of human inclinations. Because of original sin, a certain disorder resides in the human heart such that one often desires that which is contrary to the moral law. Therefore, even if homosexual inclinations are entirely inherited, this does not mean that they necessarily correspond with human nature in the original sense, as God intended it. Moreover, as Christ made clear in his preaching, it is the original, created order that has normative weight to it, not this transitory fallen state: 

Some Pharisees approached him, and tested him, saying, “Is it lawful for a man to divorce his wife for any cause whatever?” He said in reply, “Have you not read that from the beginning the Creator ‘made them male and female’ and said, ‘For this reason a man shall leave his father and mother and be joined to his wife, and the two shall become one flesh’? So they are no longer two, but one flesh. Therefore, what God has joined together, no human being must separate” (Mt 19.3-6).

Thus, the inclinations that arise in the human heart must be tested according to objective moral norms because the human nature we encounter in this age of history, though wounded by sin, is still called to the same norms of behavior intended by God “from the beginning.” Why? Because God created us “out of love for love” (John Paul II, 1981, no. 11); His wise, loving plan permeates all of created reality. Therefore, to follow the norms given to us by our Creator and Redeemer is in no way an imposition or alienation but a call to happiness. The moral law given to us by God is a blueprint by which human beings can achieve their fulfillment. This implies another fundamental truth of Christian anthropology: human nature is wounded, but it is not totally corrupted. Man still has freedom. Though weakened by sin and prone to misuse, the human person still possesses the ability to make free moral choices and, by cooperating with God’s grace, grow in holiness and maturity. 

Freedom is the power, rooted in reason and will, to act or not to act, to do this or that, and so to perform deliberate actions on one’s responsibility. By free will one shapes one’s own life. Human freedom is a force for growth and maturity in truth and goodness; it attains its perfection when direct toward God, our beatitude (CCC, no. 1731).

The proper, beatifying use of freedom requires God’s grace. Only with His help can we properly see the truth and act in accord with it. Thankfully, God desires all men to be saved and abundantly supplies the means for it to happen.

If a person finds himself or herself inclined to a homosexual lifestyle, this certainly is a cross to bear because it means that the person has “a more or less strong tendency ordered toward an intrinsic moral evil and thus the inclination itself must be seen as an objective disorder” (CDF, 1986, no. 3). Only in light of original sin does it make sense to say that someone could inherit an “objective disorder”. Recall that the research on homosexuality does not conclusively show that it is inherited, but there is no need on the basis of Christian teaching to deny this possibility. Moreover, society commonly recognizes that certain disordered propensities are inborn in some people. For instance, there is acceptance for the notion that various pathological personality traits are heritable as well as predispositions for various addictions such as alcoholism. Yet, these characteristics are not normalized but still held to be deviations from normal, “healthy” humanity. In light of this, there is no justification for a priori accepting homosexual inclinations and homosexual acts as morally upright without serious rational reflection in the light of objective moral norms.

 Such a discussion, however, would be incomplete without mention of the problem of sexual identity. Because of the language of sexual orientation prevalent in contemporary culture, there is a great deal of confusion regarding sexual identity in the fundamental sense. Christian anthropology recognizes that there are two genders: male and female. This maleness or this femaleness is ontologically grounded in the human person such that the person is always one or the other and this sexual differentiation affects all areas of life. Nonetheless, man and woman share the same human nature, though they live it and express it in two irreducibly different ways.

The importance and the meaning of sexual difference, as a reality deeply inscribed in man and woman, needs to be noted. “Sexuality characterizes man and woman not only on the physical level, but also on the psychological and spiritual, making its mark on each of their expressions”. It cannot be reduced to a pure and insignificant biological fact, but rather “is a fundamental component of personality, one of its modes of being, of manifestation, of communicating with others, of feeling, of expressing and of living human love”. This capacity to love – reflection and image of God who is Love – is disclosed in the spousal character of the body, in which the masculinity or femininity of the person is expressed (CDF, 2004, no.8 ).

Because of original sin, deviations of this sexual difference can and do occur, but there are just that – deviations. The problem with the language of sexual orientation is that it tends to separate sexual desire from sexual identity (the basic sexual difference of male and female). Though one is a man, one’s sexuality need not be inclined toward women and vice versa. This implies that all orientations are on the same anthropological and ethical standing, which the Church recognizes as false. A homosexual inclination is “objectively disordered” (CCC, no. 2358). This is only understood when one sees one’s biological sex and the purposes inscribed in it as fundamentally intrinsic to one’s personal identity. In other words, sexual identity consists in being male or female, and within these two irreducible ways of being human, there is no room for a multiplicity of sexual orientations. The fact that such orientations exist is, once again, a result of original sin. The way to overcome the power of sin is not to normalize all the deviations and disorders that it produces but to persevere in seeking and living by the truth with the unfailing help of God’s grace.

Homosexual persons are called to chastity. By the virtues of self-mastery that teach them inner freedom, at times by the support of disinterested friendship, by prayer and sacramental grace, they can and should gradually and resolutely approach Christian perfection (CCC, no. 2359).

Rather than embracing one’s disordered desires with reckless abandon, they must be submitted to the truth, and thus gradually transformed into dispositions of virtue. Only in doing so, can one’s fallen human nature slowly grow toward its proper perfection bringing with it true freedom and happiness. Accordingly, persons with homosexual tendencies cannot find true happiness in embracing their disordered orientation as their core identity and the guiding light of their lifestyle, but rather they are called to live their sexuality in integrity precisely as a man or as a woman according to the truth of the divine plan. This truth is rooted in God Himself Who created us, holds us in being, and bears our destiny within Himself. Thus, to seek chastity according to God’s plan is not an imposition of arbitrary norms but the inner condition of attaining the fulfillment desired by every human heart. Though it may be a long difficult road, as the late Karol Wojtyla stated, “Chastity is the sure way to happiness” (Wojtyla, 1960, p. 172).”

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The Aspiration to Neutrality

May 4, 2010

John F. Kennedy’s view of religion as a private, not public, affair reflected more than the need to disarm anti-Catholic prejudice. It reflected a public philosophy that would come to full expression during the 1960s and 70s — a philosophy that held that government should be neutral on moral and religious questions, so that each individual could be free to choose his or her own conception of the good life.

Both major political parties appealed to the idea of neutrality, but in different ways. Generally speaking, Republicans invoked the idea in economic policy, while Democrats applied it to social and cultural issues. Republicans argued against government intervention in free markets on the grounds that individuals should be free to make their own economic choices and spend their money as they pleased; for government to spend taxpayers’ money or regulate economic activity for public purposes was to impose a state-sanctioned vision of the common good that not everyone shared. Tax cuts were preferable to government spending, because they left individuals free to decide for themselves what ends to pursue and how to spend their own money.

Democrats rejected the notion that free markets are neutral among ends and defended a greater measure of government intervention in the economy. But when it came to social and cultural issues, they, too, invoked the language of neutrality. Government should not “legislate morality” in the areas of sexual behavior or reproductive decisions, they maintained, because to do so imposes on some the moral and religious convictions of others. Rather than restrict abortion or homosexual intimacies, government should be neutral on these morally charged questions and let individuals choose for themselves.

John Rawls
In 1971 , John Rawls ‘s A Theory Of Justice offered a philosophical defense of the liberal conception of neutrality that Kennedy’s speech had intimated. In the 1980s, the communitarian critics of liberal neutrality questioned the vision of the freely choosing, unencumbered self that seemed to underlie Rawls’s theory. They argued not only for stronger notions of community and solidarity but also for a more robust public engagement with moral and religious questions.

In 1993, Rawls published a hook, Political Liberalism, that recast his theory in some respects. He acknowledged that, in their personal lives, people often have affections, devotions, and loyalties that they believe they would not, indeed could and should not, stand apart from.

They may regard it as simply unthinkable to view themselves apart from certain religious, philosophical, and moral convictions, or from certain enduring attachments and loyalties.” To this extent, Rawls accepted the possibility of thickly constituted, morally encumbered selves. But he insisted that such loyalties and attachments should have no bearing on our identity as citizens. In debating justice and rights, we should set aside our personal moral and religious convictions and argue from the standpoint of a “political conception of the person,” independent of any particular loyalties, attachments, or conception of the good life.

Why should we not bring our moral and religious convictions to bear in public discourse about justice and rights? Why should we separate our identity as citizens from our identity as moral persons more broadly conceived? Rawls argues that we should do so in order to respect “the fact of reasonable pluralism” about the good life that prevails in the modern world. People in modern democratic societies disagree about moral and religious questions; moreover these disagreements are reasonable. “It is not to be expected that conscientious persons with full powers of reason, even after free discussion, will all arrive at the same conclusion.”

According to this argument, the case for liberal neutrality arises from the need for tolerance in the face of moral and religious disagreement. “Which moral judgments are true, all things considered, is not a matter for political liberalism,” Rawls writes. To maintain impartiality between competing moral and religious doctrines, political liberalism does not “address the moral topics on which those doctrines divide.”

The demand that we separate our identity as citizens from our moral and religious convictions means that, when engaging in public discourse about justice and rights, we must abide by the limits of liberal public reason. Not only may government not endorse a particular conception of the good; citizens may not even introduce their moral and religious convictions into public debate about justice and rights. For if they do, and if their arguments prevail, they will effectively impose on their fellow citizens a law that rests on a particular moral or religious doctrine.

How can we know whether our political arguments meet the requirements of public reason, suitably shorn of any reliance on moral or religious views? Rawls suggests a novel test: “To check whether we are following public reason we might ask: how would our argument strike us presented in the form of a Supreme Court opinion?”As Rawls explains, this is a way to make sure that our arguments are neutral in the sense that liberal public reason requires; “The justices cannot, of course, invoke their own personal morality, nor the ideals and virtues of morality generally. Those they must view as irrelevant. Equally, they cannot invoke their or other people’s religious or philosophical views.”When participating as citizens in public debate, we should observe a similar restraint. Like Supreme Court justices, we should set aside our moral and religious convictions, and restrict ourselves to arguments that all citizens can reasonably be expected to accept.

Liberal “Neutrality” and the Politics of Obama
This is the ideal of liberal neutrality that John Kennedy invoked and Barack Obama rejected. From the 1960s through the l980s, Democrats drifted toward the neutrality ideal, and largely banished moral and religious argument from their political discourse. There were some notable exceptions. Martin Luther King, Jr., invoked moral and religious arguments in advancing the cause of civil rights; the anti-Vietnam War movement was energized by moral and religious discourse; and Robert E Kennedy, seeking the Democratic presidential nomination in 1968, tried to summon the nation to more demanding moral and civic ideals. But by the 1970s, liberals embraced the language of neutrality and choice, and ceded moral and religious discourse to the emerging Christian right.

With the election of Ronald Reagan in 1980, Christian conservatives became a prominent voice in Republican politics. Jerry Farwell’s Moral Majority and Pat Robertson’s Christian Coalition sought to clothe the “naked public square”and to combat what they saw as the moral permissiveness of American life. They favored school prayer, religious displays in public places, and legal restrictions on pornography, abortion, and homosexuality. For their part, liberals opposed these policies, not by challenging the moral judgments case by case, but instead by arguing that moral and religious judgments have no place in politics.

This pattern of argument served Christian conservatives well, and gave liberalism a bad name. In the 1990s and early 2000s, liberals argued, somewhat defensively, that they, too, stood for “values,” by which they typically meant the values of tolerance, fairness, and freedom of choice. (In an awkward reach for resonance, 2004 Democratic presidential nominee John Kerry used the words value or values thirty-two times in his convention acceptance speech.) But these were the values associated with liberal neutrality and the constraints of liberal public reason. They did not connect with the moral and spiritual yearning abroad in the land, or answer the aspiration for a public life of larger meaning.

Unlike other Democrats, Barack Obama understood this yearning and gave it political voice. This set his politics apart from the liberalism of his day. The key to his eloquence was not simply that he was adept with words. It was also that his political language was infused with a moral and spiritual dimension that pointed beyond liberal neutrality.

Each day, it seems, thousands of Americans are going about their daily rounds — dropping off the kids at school, driving to the office, flying to a business meeting, shopping at the mall, trying to stay on their diets — and they’re coming to realize that something is missing. They are deciding that their work, their possessions, their diversions, their sheer busyness, is not enough. They want a sense of purpose, a narrative arc to their lives. . . If-we truly hope to speak to people where they’re at — to communicate our hopes and values in a way that’s relevant to their own — then as progressives, we cannot abandon the field of religious discourse.

Obama’s claim that progressives should embrace a more capacious, faith-friendly form of public reason reflects a sound political instinct. It is also good political philosophy. The attempt to detach arguments about justice and rights from arguments about the good life is mistaken for two reasons: First, it is not always possible to decide questions of justice and rights without resolving substantive moral questions; and second, even where it’s possible, it may not be desirable.

The Abortion and Stem Cell Debates
Consider two familiar political questions that can’t be resolved without taking a stand on an underlying moral and religious controversy — abortion and embryonic stem cell research. Some people believe that abortion should be banned because it involves the taking of innocent human life. Others disagree, arguing that the law should not take sides in the moral and theological controversy over when human life begins; since the moral status of the developing fetus is a highly charged moral and religious question, they argue, government should be neutral on that question, and allow women to decide for themselves whether to have an abortion.

The second position reflects the familiar liberal argument for abortion rights. It claims to resolve the abortion question on the basis of neutrality and freedom of choice, without entering into the moral and religious controversy. But this argument does not succeed. For, if it’s true that the developing fetus is morally equivalent to a child, then abortion is morally equivalent to infanticide. And few would maintain that government should let parents decide for themselves whether to kill their children. So the “pro-choice” position in the abortion debate is not really neutral on the underlying moral and theological question; it implicitly rests on the assumption that the Catholic Church’s teaching on the moral status of the fetus — that it is a person from the moment of conception — is false.

To acknowledge this assumption is not to argue for banning abortion. It is simply to acknowledge that neutrality and freedom of choice are not sufficient grounds for affirming a right to abortion. Those who would defend the right of women to decide for themselves whether to terminate a pregnancy should engage with the argument that the developing fetus is equivalent to a person, and try to show why it is wrong. It is not enough to say that the law should be neutral on moral and religious questions. The case for permitting abortion is no more neutral than the case for banning it. Both positions presuppose some answer to the underlying moral and religious controversy.

The same is true of the debate over stem cell research. Those who would ban embryonic stem cell research argue that, whatever its medical promise, research that involves the destruction of human embryos is morally impermissible. Many who hold this view believe that personhood begins at conception, so that destroying even an early embryo is morally on a par with killing a child.

Proponents of embryonic stem cell research reply by pointing to the medical benefits the research may bring, including possible treatments and cures for diabetes, Parkinson’s disease, and spinal cord injury. And they argue that science should not be hampered by religious or ideological interference; those with religious objections should not be allowed to impose their views through laws that would ban promising scientific research.

As with the abortion debate, however, the case for permitting embryonic stem cell research cannot be made without taking a stand on the moral and religious controversy about when personhood begins. If the early embryo is morally equivalent to a person, then the opponents of embryonic stem cell research have a point; even highly promising medical research would not justify dismembering a human person. Few people would say it should be legal to harvest organs from a five-year-old child in order to promote life-saving research. So the argument for permitting embryonic stem cell research is not neutral on the moral and religious controversy about when human personhood begins.

It presupposes an answer to that controversy — namely that the pre-implantation embryo destroyed in the course of embryonic stem cell research is not yet a human being.

With abortion and embryonic stem cell research, it’s not possible to resolve the legal question without taking up the underlying moral and religious question. In both cases, neutrality is impossible because the issue is whether the practice in question involves taking the life of’ a human being. Of course, most moral and political controversies do not involve matters of life and death. So partisans of liberal neutrality might reply that the abortion and stem cell debates are special cases; except where the definition of the human person is at stake, we can resolve arguments about justice and rights without taking sides in moral and religious controversies. But this isn’t true, either.

Same-Sex Marriage
Consider the debate over same-sex marriage. Can you decide whether the state should recognize same-sex marriage without entering into moral and religious controversies about the purpose of marriage and the moral status of homosexuality? Some say yes, and argue for same-sex marriage on liberal, nonjudgmental grounds: whether one personally approves or disapproves of gay and lesbian relationships, individuals should be free to choose their marital partners. To allow heterosexual but not homosexual couples to get married wrongly discriminates against gay men and lesbians, and denies them equality before the law.

If this argument is a sufficient basis for according state recognition to same-sex marriage, then the issue can be resolved within the bounds of liberal public reason, without recourse to controversial conceptions of the purpose of marriage and the goods it honors. But the case for same-sex marriage can’t be made on nonjudgmental grounds. It depends on a certain conception of the telos of marriage — its purpose or point. And, as Aristotle reminds us, to argue about the purpose of a social institution is to argue about the virtues it honors and rewards.

The debate over same-sex marriage is fundamentally a debate about whether gay and lesbian unions are worthy of the honor and recognition that, in our society, state-sanctioned marriage confers. So the underlying moral question is unavoidable.

To see why this is so, it’s important to bear in mind that a state can take three possible policies toward marriage, not just two. It can adopt the traditional policy and recognize only marriages between a man and a woman; or it can do what several states have done, and recognize same-sex marriage in the same way it recognizes marriage between a man and a woman; or it can decline to recognize marriage of any kind, and leave this role to private associations.

These three policies can be summarized as follows:

  1. Recognize only marriages between a man and a woman.
  2. Recognize same-sex and opposite-sex marriages.
  3. Don’t recognize marriage of any kind, but leave this role to private associations.

In addition to marriage laws, states can adopt civil union or domestic partnership laws that grant legal protections, inheritance rights, hospital visitation rights, and child custody arrangements to unmarried couples who live together and enter into a legal arrangement. A number of states have made such arrangements available to gay and lesbian partners. In 2003, Massachusetts, by a ruling of its Supreme Court, became the first state to accord legal recognition to same-sex marriage (policy 2). In 2008, California’s Supreme Court also ruled in favor of a right to same-sex marriage, but a few months after the ruling, a majority of the electorate overturned that decision in a statewide ballot initiative. In 2009, Vermont became the first state to legalize gay marriage by legislation rather than by judicial.

Policy 3 is purely hypothetical, at least in the United States; no state has thus far renounced the recognition of marriage as a government function. But this policy is nonetheless worth examining, as it sheds light on the arguments for and against same-sex marriage.

Policy 3 is the ideal libertarian solution to the marriage debate. It does not abolish marriage, but it does abolish marriage as a state-sanctioned institution. It might best be described as the disestablishment of marriage. Just as dis-establishing religion means getting rid of an official state church (while allowing churches to exist independent of the state), dis-establishing marriage would mean getting rid of marriage as an official state function.

The opinion writer Michael Kinsley defends this policy as a way out of what he sees as a hopelessly irresolvable conflict over marriage. Proponents of gay marriage complain that restricting marriage to heterosexuals is a kind of discrimination. Opponents claim that if the state sanctions gay marriage, it goes beyond tolerating homosexuality to endorsing it and giving it “a government stamp of approval. “The solution, Kinsley writes, is “to end the institution of government-sanctioned marriage,” to “privatize marriage.” Let people get married any way they please, without state sanction or interference.

Let churches and other religious institutions continue to offer marriage ceremonies. Let department stores and casinos get into the act if they want. . . . Let couples celebrate their union in any way they choose and consider themselves married whenever they want.

And, yes, if three people want to get married, or one person wants — to marry him or herself, and someone else wants to conduct a ceremony and declare them married, let ‘em.

“If marriage were an entirely private affair,” Kinsley reasons, “all the disputes over gay marriage would become irrelevant. Gay marriage would not have the official sanction of government, but neither would straight marriage.” Kinsley suggests that domestic partnership laws could deal with the financial, insurance, child support, and inheritance issues that arise when people co-habit and raise children together. He proposes, in effect, to replace all state-sanctioned marriages, gay and straight, with civil unions.

From the standpoint of liberal neutrality, Kinsley’s proposal has a clear advantage over the two standard alternatives (policies 1 and 2): It does not require judges or citizens to engage in the moral and religious controversy over the purpose of marriage and the morality of homosexuality. Since the state would no longer confer on any family units the honorific title of marriage, citizens would be able to avoid engaging in debate about the telos of marriage, and whether gays and lesbians can fulfill it.

Relatively few people on either side of the same-sex marriage debate have embraced the disestablishment proposal. But it sheds light on what’s at stake in the existing debate, and helps us see why both proponents and opponents of same-sex marriage must contend with the substantive moral and religious controversy about the purpose of marriage and the goods that define it. Neither of the two standard positions can be defended within the bounds of liberal public reason.

Of course, those who reject same-sex marriage on the grounds that it sanctions sin and dishonors the true meaning of marriage aren’t bashful about the fact that they’re making a moral or religious claim. But those who defend a right to same-sex marriage often try to rest their claim on neutral grounds, and to avoid passing judgment on the moral meaning of marriage. The attempt to find a nonjudgmental case for same-sex marriage draws heavily on the ideas of nondiscrimination and freedom of choice. But these ideas cannot by themselves justify a right to same-sex marriage. To see why this is so, consider the thoughtful and nuanced opinion written by Margaret Marshall, Chief Justice of the Massachusetts Supreme Court; in the court’s ruling in Goodridge v. Dept. of Public Health (2003), the same-sex marriage case.

Marshall begins by recognizing the deep moral and religious disagreement the subject provokes, and implies that the court will not take sides in this dispute: Many people hold deep-seated religious, moral, and ethical convicEons that marriage should be limited to the union of one man and one woman, and that homosexual conduct is immoral. Many hold equally strong religious, moral and ethical convictions that same-sex couples are entitled to be married, and that homosexual persons should be treated no differently than their heterosexual neighbors. Neither view answers the question before us. “Our obligation is to define the liberty of all, not to mandate our own moral code.”

As if to avoid entering into the moral and religious controversy over homosexuality, Marshall describes the moral issue before the court in liberal terms — as a matter of autonomy and freedom of choice. The exclusion of same-sex couples from marriage is incompatible with “respect for individual autonomy and equality under law” she writes. The liberty of “choosing whether and whom to marry would be hollow” if the state could “foreclose an individual from freely choosing the person with whom to share an exclusive commitment. “The issue, Marshall maintains, is not the moral worth of the choice, but the right of the individual to make it — that is, the right of the plaintiffs “to marry their chosen partner?”

But autonomy and freedom of choice are insufficient to justify a right to same-sex marriage. If government were truly neutral on the moral worth of all voluntary intimate relationships, then the state would have no grounds for limiting marriage to two persons; con-sensual polygamous partnerships would also qualify. In fact, if the state really wanted to be neutral, and respect whatever choices individuals wished to make, it would have to adopt Michael Kinsley’s proposal and get out of the business of conferring recognition on any marriages.

The real issue in the gay marriage debate is not freedom of choice but whether same-sex unions are worthy of honor and recognition by the community — whether they fulfill the purpose of the social institution of marriage. In Aristotle’s terms, the issue is the just distribution of offices and honors. It’s a matter of social recognition.

Notwithstanding its emphasis on freedom of choice, the Massachusetts court made clear that it did not intend to open the way to polygamous marriage. It didn’t question the notion that government may confer social recognition on some intimate associations rather than others, nor did the court call for the abolition, or disestablishment, of marriage.

To the contrary, Justice Marshall’s opinion offers a paean to marriage as “one of our community’s most rewarding and cherished institutions.” It argues that eliminating state-sanctioned marriage “would dismantle a vital organizing principle of our society.”

Rather than abolish state-sanctioned marriage, Marshall argues for expanding its traditional definition to include partners of the same sex. In doing so, she steps outside the bounds of liberal neutrality to affirm the moral worth of same-sex unions, and to offer a view about the purpose of marriage, properly conceived. More than a private arrangement between two consenting adults, she observes, marriage is a form of public recognition and approval. “In a real sense, there are three partners to every civil marriage: two willing spouses and an approving State.” This feature of marriage brings out its honorific aspect: “Civil marriage is at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family.”

If marriage is an honorific institution, what virtues does it honor? To ask that question is to ask about the purpose, or telos, of marriage as a social institution. Many opponents of same-sex marriage claim that the primary purpose of marriage is procreation. According to this argument, since same-sex couples are unable to procreate on their own, they don’t have a right to marry. They lack, so to speak, the relevant virtue.

This teleological line of reasoning is at the heart of the case against same-sex marriage, and Marshall takes it on directly. She does not pretend to be neutral on the purpose of marriage, but offers a rival interpretation of it. The essence of marriage, she maintains, is not procreation but an exclusive, loving commitment between two partners — be they straight or gay.

Now, how, you might ask, is it possible to adjudicate between rival accounts of the purpose, or essence, of marriage? Is it possible to argue rationally about the meaning and purpose of morally contested social institutions such as marriage? Or is it simply a clash of bald assertions — some say it’s about procreation, others say it’s about loving commitment — and there’s no way of showing one to be more plausible than the other?

Marshall’s opinion offers a good illustration of how such arguments can proceed. First, she disputes the claim that procreation is the primary purpose of marriage. She does so by showing that marriage, as currently practiced and regulated by the state, does not require the ability to procreate. Heterosexual couples who apply for marriage licenses are not asked about “their ability or intention to conceive children by coitus. Fertility is not a condition of marriage, nor is it grounds for divorce, People who have never consummated their marriage, and never plan to, may be and stay married. People who cannot stir from their deathbed may marry.” While “many, perhaps most married couples have children together (assisted or unassisted) ,“ Marshall concludes, “it is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage.”

So part of Marshall’s argument consists of an interpretation of the purpose or essence of marriage as it currently exists. Faced with rival interpretations of a social practice — marriage-as-procreation versus marriage-as-exclusive-and-permanent-commitment — how can we determine which is more plausible? One way is to ask which account makes better sense of existing marriage laws, taken as a whole. Another is to ask which interpretation of marriage celebrates virtues worth honoring. What counts as the purpose of marriage partly depends on what qualities we think marriage should celebrate and affirm. This makes the underlying moral and religious controversy unavoidable: What is the moral status of gay and lesbian relationships?

Marshall is not neutral on this question. She argues that same-sex relationships are as worthy of respect as heterosexual relationships. Restricting marriage to heterosexuals “confers an official stamp of approval on the destructive stereotype that same-sex relationships are inherently unstable and inferior to opposite-sex relationships and are not worthy of respect.”

So when we look closely at the case for same-sex marriage, we find that it cannot rest on the ideas of non-discrimination and freedom of choice. In order to decide who should qualify for marriage, we have to think through the purpose of marriage and the virtues it honors. And this carries us onto contested moral terrain, where we can’t remain neutral toward competing conceptions of the good life.

I have one more post from Michael Sandal but I think what this one does is show you that the tired defense of marriage as between one man and one woman because marriage is for procreation is just that, tired. Far better to reflect upon the virtue of homosexuality and to discuss that with same-sex marriage advocates. Look at these two reflections on the case for homosexuality as a normative behavior:

  1. http://payingattentiontothesky.com/causes-of-homosexuality-a-christian-appraisal-of-the-data/
  2. http://payingattentiontothesky.com/causes-of-homosexuality-a-christian-appraisal-of-the-data/gay-adoption-issues/

The Church refuses to believe that can a condition be “normal” or “natural” when statistics show it leads to early death; sexual addiction and promiscuity; inability to procreate normally; numerous health problems including STDs, cancer, hepatitis, HIV/AIDS and other life-threatening diseases; drug and alcohol abuse; and a high risk of depression and suicide.

According to the Catholic Medical Association: Well-designed research studies have shown several psychiatric disorders to be far more prevalent in teenagers and adults with same-sex attraction. These include major depression, suicidal ideation and attempts, anxiety disorders, substance abuse, conduct disorder, low self-esteem in males and sexual promiscuity with the inability to maintain committed relationships. It is important to note that “homophobia” is not the cause of these disorders as most of these studies were done in cultures in which homosexuality is widely accepted.

This report also notes that 39 percent of males with same-sex attraction have been abused by other males with same-sex attraction. The Family Research Council has also published a report, Getting it Straight: What the Research Shows About Homosexuality , that has a chapter on the health risks involved for those with homosexual lifestyles, including reports from the Center for Disease Control, the Journal of the American Medical Association, the John Hopkins University School of Public Health and others. “The significantly elevated health problems experienced by homosexuals [are] most often the direct consequence of engaging in specific sexual acts and behavior patterns … that are common among homosexuals.”

These papers directly contradict the Marshall opinion argued above. “The destructive stereotype that same-sex relationships are inherently unstable and inferior to opposite-sex relationships and are not worthy of respect.” turns out to be a stereotype without a firm basis in fact.

If you would like to explore more, this is a challenging view of the neutrality topic that Dr. Sandal introduces to his ideas on justice:

http://payingattentiontothesky.com/2009/12/09/reading-selections-from-%e2%80%9cthe-illusion-of-moral-neutrality%e2%80%9d-by-j-budziszewski/

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Three Approaches to Justice — Michael Sandel

May 3, 2010

Professor Michael Sandel inside Sanders Theatre at Harvard University

To ask whether a society is just is to ask how it distributes the things we prize — income and wealth, duties and rights, powers and opportunities, offices and honors. A just society distributes these goods in the right way; it gives each person his or her due. The hard questions begin when we ask what people are due, and why. Michael Sandel’s course at Harvard has become a popular program on PBS. I continue with a reading selection from his book Justice:

“We’ve already begun to wrestle with these questions. As we’ve pondered the rights and wrongs of price gouging, competing claims to the Purple Heart, and financial bailouts (previous post), we’ve identified three ways of approaching the distribution of goods: welfare, freedom, and virtue. Each of these ideals suggests a different way of thinking about justice.

Some of our debates reflect disagreement about what it means to maximize welfare or respect freedom or cultivate virtue. Others involve disagreement about what to do when these ideals conflict. Political philosophy cannot resolve these disagreements once and for all. But it can give shape to the arguments we have, and bring moral clarity to the alternatives we confront as democratic citizens.

My book explores the strengths and weaknesses of these three ways of thinking about justice. We begin with the idea of maximizing welfare. For market societies such as ours, it offers a natural starting point. Much contemporary political debate is about how to promote prosperity, or improve our standard of living, or spur economic growth. Why do we care about these things? The most obvious answer is that we think prosperity makes us better off than we would otherwise be — as individuals and as a society. Prosperity matters, in other words, because it contributes to our welfare. To explore this idea, we turn to utilitarianism, the most influential account of how and why we should maximize welfare, or (as the Utilitarians put it) seek the greatest happiness for the greatest number.

Next, we take up a range of theories that connect justice to freedom. Most of these theories emphasize respect for individual rights, though they disagree among themselves about which rights are most important. The idea that justice means respecting freedom and individual rights is at least as familiar in contemporary politics as the utilitarian idea of maximizing welfare. For example, the U.S. Bill of Rights sets out certain liberties — including rights to freedom of speech and religious liberty — that even majorities may not violate. And around the world, the idea that justice means respecting certain universal human rights is increasingly embraced (in theory, if not always in practice).

The approach to justice that begins with freedom is a capacious school. In fact, some of the most hard-fought political arguments of our time take place between two rival camps within it — the laissez faire camp and the fairness camp. Leading the laissez-faire camp arc free-market libertarians who believe that justice consists in respecting and upholding the voluntary choices made by consenting adults. The fairness camp contains theorists of a more egalitarian bent. They argue that unfettered markets are neither just nor free. In their view, justice requires policies that remedy social and economic disadvantages and give everyone a fair chance at success.

Finally, we turn to theories that see justice as bound up with virtue and the good life. In contemporary politics, virtue theories are often identified with cultural conservatives and the religious right. The idea of legislating morality is anathema to many citizens of liberal societies, as it risks lapsing into intolerance and coercion. But the notion that a just society affirms certain virtues and conceptions of the good life has inspired political movements and arguments across the ideological spectrum. Not only the Taliban, but also abolitionists and Martin Luther King, Jr., have drawn their visions of justice from moral and religious ideals. (The left, as I will point out when we take up gay marriage, often disguises its appeal to “Justice,” when in fact it is advancing a virtue argument – all the while denigrating the Church’s arguments as bible based, intolerant prejudice. DJ)

Before attempting to assess these theories of justice, it’s worth asking how philosophical arguments can proceed — especially in so contested a domain as moral and political philosophy. They often begin with concrete situations. As we’ve seen in our discussion of price gouging, Purple Hearts, and bailouts, moral and political reflection finds its occasion in disagreement. Often the disagreements are among partisans or rival advocates in the public realm. Sometimes the disagreements are within us as individuals, as when we find ourselves torn or conflicted about a hard moral question.

But how exactly can we reason our way from the judgments we make about concrete situations to the principles of justice we believe should apply in all situations? What, in short, does moral reasoning consist in?

To see how moral reasoning can proceed, let’s turn to two situations — one a fanciful hypothetical story much discussed by philosophers, the other an actual story about an excruciating moral dilemma. (In both you will see that arriving at the truth of the matter can often become a terribly elusive ideal. Hence, as I suggested before, our unsatisfied quest for truth turns to mystery stories. DJ)

Consider first this philosopher’s hypothetical. Like all such tales, it involves a scenario stripped of many realistic complexities, so that we can focus on a limited number of philosophical issues.

The Runaway Trolley
Suppose you are the driver of a trolley car hurtling down the track at sixty miles an hour. Up ahead you see five workers standing on the track, tools in hand. You try to stop, but you can’t. The brakes don’t work. You feel desperate, because you know that if you crash into these five workers, they will all die. (Let’s assume you know that for sure.)

Suddenly, you notice a side track, off to the right. There is a worker on that track, too, but only one. You realize that you can turn the trolley car onto the side track, killing the one worker, but sparing the five.

What should you do? Most people would say, “Turn! Tragic though it is to kill one innocent person, it’s even worse to kill five.” Sacrificing one life in order to save five does seem the right thing to do.

Now consider another version of the trolley story. This time, you are not the driver but an onlooker, standing on a bridge overlooking the track. (This time, there is no side track.) Down the track comes a trolley, and at the end of the track are five workers. Once again, the brakes don’t work. The trolley is about to crash into the five workers. You feel helpless to avert this disaster — until you notice, standing next to you on the bridge, a very heavy man. You could push him off the bridge, onto the track, into the path of the oncoming trolley. He would die, but the five workers would he saved. (You consider jumping onto the track yourself, but realize you are too small to stop the trolley.)

Would pushing the heavy man onto the track be the right thing to do? Most people would say, “Of course not. It would be terribly wrong to push the man onto the track.”

Pushing someone off a bridge to a certain death does seem an awful thing to do, even if it saves five innocent lives. But this raises a moral puzzle: Why does the principle that seems right in the first case — sacrifice one life to save five — seem wrong in the second?

If, as our reaction to the first case suggests, numbers count — if it is better to save five lives than one — then why shouldn’t we apply this principle in the second case, and push? It does seem cruel to push a man to his death, even for a good cause. But is it any less cruel to kill a man by crashing into him with a trolley car?

Perhaps the reason it is wrong to push is that doing so uses the man on the bridge against his will. He didn’t choose to be involved, after all. He was just standing there.

But the same could be said of the person working on the side track. He didn’t choose to be involved, either. He was just doing his job, not volunteering to sacrifice his life in the event of a runaway trolley. It might be argued that railway workers willingly incur a risk that bystanders do not. But let’s assume that being willing to die in an emergency to save other people’s lives is not part of the job description, and that the worker has no more consented to give his life than the bystander on the bridge has consented to give his.

Maybe the moral difference lies not in the effect on the victims — both wind up dead — but in the intention of the person making the decision. As the driver of the trolley, you might defend your choice to divert the trolley by pointing out that you didn’t intend the death of the worker on the side track, foreseeable though it was; your purpose would still have been achieved if, by a great stroke of luck, the five workers were spared and the sixth also managed to survive.

But the same is true in the pushing case. The death of the man you push off the bridge is not essential to your purpose. All he needs to do is block the trolley; if he can do so and somehow survive, you would be delighted.

Or perhaps, on reflection, the two cases should be governed by the same principle. Both involve a deliberate choice to take the life of one innocent person in order to prevent an even greater loss of life. Perhaps your reluctance to push the man off the bridge is mere squeamishness, a hesitation you should overcome. Pushing a man to his death with your bare hands does seem more cruel than turning the steering wheel of a trolley. But doing the right thing is not always easy.

We can test this idea by altering the story slightly. Suppose you, as the onlooker, could cause the large man standing next to you to fall onto the track without pushing him; imagine he is standing on a trap door that you could open by turning a steering wheel. No pushing, same result. Would that make it the right thing to do? Or is it still morally worse than for you, as the trolley driver, to turn onto the side track?

It is not easy to explain the moral difference between these cases — why turning the trolley seems right, but pushing the man off the bridge seems wrong. But notice the pressure we feel to reason our way to a convincing distinction between them—and if we cannot, to reconsider our judgment about the right thing to do in each case. We sometimes think of moral reasoning as a way of persuading other people. But it is also a way of sorting out our own moral convictions, of figuring out what we believe and why.

Some moral dilemmas arise from conflicting moral principles. For example, one principle that comes into play in the trolley story says we should save as many lives as possible, but another says it is wrong to kill an innocent person, even for a good cause. Confronted with a situation in which saving a number of lives depends on killing an innocent person, we face a moral quandary. We must try to figure out which principle has greater weight, or is more appropriate under the circumstances.

Other moral dilemmas arise because we are uncertain how events will unfold. Hypothetical examples such as the trolley story remove the uncertainty that hangs over the choices we confront in real life. They assume we know for sure how many will die if we don’t turn — or don’t push. This makes such stories imperfect guides to action. But it also makes them useful devices for moral analysis. By setting aside contingencies – “What if the workers noticed the trolley and jumped aside in time?” — hypothetical examples help us to isolate the moral principles at stake and examine their force.

The Afghan Goatherds
Consider now an actual moral dilemma, similar in some ways to the fanciful tale of the runaway trolley, but complicated by uncertainty about how things will turn out:

In June 2005, a special forces team made up of Petty Officer Marcus Luttrell and three other U.S. Navy Seals set out on a secret reconnaissance mission in Afghanistan, near the Pakistan border, in search of a Taliban leader, a close associate of Osama bin Laden. According to intelligence reports, their target commanded 140 to 150 heavily armed fighters and was staying in a village in the forbidding mountainous region.

Shortly after the special forces team took up a position on a mountain ridge overlooking the village, two Afghan farmers with about a hundred bleating goats happened upon them. With them was a boy about fourteen years old. The Afghans were unarmed. The American soldiers trained their rifles on them, motioned for them to sit on the ground, and then debated what to do about them. On the one hand, the goatherds appeared to be unarmed civilians. On the other hand, letting them go would run the risk that they would inform the Taliban of the presence of the U.S. soldiers.

As the four soldiers contemplated their options, they realized that they didn’t have any rope, so tying up the Afghans to allow time to find a new hideout was not feaslble.The only choice was to kill them or let them go free.

One of Luttrell’s comrades argued for killing the goatherds: “We’re on active duty behind enemy lines, sent here by our senior commanders. We have a right to do everything we can to save our own lives.The military decision is obvious. To turn them loose would be wrong.” Luttrell was torn. “In my soul, I knew he was right,” he wrote in retrospect. “We could not possibly turn them loose. But my trouble is, I have another soul. My Christian soul. And it was crowding in on me. Something kept whispering in the back of my mind, it would be wrong to execute these unarmed men in cold blood” Luttrell didn’t say what he meant by his Christian soul, but in the end, his conscience didn’t allow him to kill the goatherds. He cast the deciding vote to release them. (One of his three comrades had abstained.) It was a vote he came to regret.

About an hour and a half after they released the goatherds, the four soldiers found themselves surrounded by eighty to a hundred Taliban fighters armed with AK-47s and rocket-propelled grenades. In the fierce firefight that followed, all three of Luttrell’s comrades were killed. The Taliban fighters also shot down a U.S. helicopter that sought to rescue the SEAL unit, killing all sixteen soldiers on board.

Luttrell, severely injured, managed to survive by falling down the mountainside and crawling seven miles to a Pashtun village, whose residents protected him from the Taliban until he was rescued.

In retrospect, Luttrell condemned his own vote not to kill the goat-herds. “It was the stupidest, most southern-fried, lamebrained decision I ever made in my life,” he wrote in a book about the experience. “I must have been out of my mind. I had actually cast a vote which I knew could sign our death warrant. . . . At least, that’s how I look back on those moments now. . . . The deciding vote was mine, and it will haunt me till they rest me in an EastTexas grave.”

Part of what made the soldiers’ dilemma so difficult was uncertainty about what would happen if they released the Afghans. Would they simply go on their way or would they alert the Taliban? But suppose Luttrell knew that freeing the goatherds would lead to a devastating battle resulting in the loss of his comrades, nineteen American deaths, injury to himself, and the failure of his mission? Would he have decided differently?

For Luttrell, looking hack, the answer is clear: he should have killed the goatherds. Given the disaster that followed, it is hard to disagree. From the standpoint of numbers, Luttrell’s choice is similar to the trolley case. Killing the three Afghans would have saved the lives of his three comrades and the sixteen U.S. troops who tried to rescue them. But which version of the trolley story does it resemble? Would killing the goatherds be more like turning the trolley or pushing the man off the bridge? The fact that Luttrell anticipated the danger and still could not bring himself to kill unarmed civilians in cold blood suggests it may be closer to the pushing case.

And yet the case for killing the goatherds seems somehow stronger than the ease for pushing the man off the bridge. This may be because we suspect that — given the outcome — they were not innocent bystanders, but Taliban sympathizers. Consider an analogy: If we had reason to believe that the man on the bridge was responsible for disabling the brakes of the trolley in hopes of killing the workers on the track (let’s say they were his enemies), the moral argument for pushing him onto the track would begin to look stronger. We would still need to know who his enemies were, and why he wanted to kill them. If we learned that the workers on the track were members of the French resistance and the heavy man on the bridge a Nazi who had sought to kill them by disabling the trolley, the case for pushing him to save them would become morally compelling.

It is possible, of course, that the Afghan goatherds were not Taliban sympathizers, but neutrals in the conflict, or even Taliban opponents, who were forced by the Taliban to reveal the presence of the American troops. Suppose Luttrell and his comrades knew for certain that the goatherds meant them no harm, but would be tortured by the Taliban to reveal their location. The Americans might have killed the goatherds to protect their mission and themselves. But the decision to do so would have been more wrenching (and morally more questionable) than if they knew the goatherds to be pro-Taliban spies.

Moral Dilemmas
Few of us face choices as fateful as those that confronted the soldiers on the mountain or the witness to the runaway trolley. But wrestling with their dilemmas sheds light on the way moral argument can proceed, in our personal lives and in the public square.

Life in democratic societies is rife with disagreement about right and wrong, justice and injustice. Some people favor abortion rights, and others consider abortion to be murder. Some believe fairness requires taxing the rich to help the poor, while others believe it is unfair to tax away money people have earned through their own efforts. Some defend affirmative action in college admissions as a way of righting past wrongs, whereas others consider it an unfair form of reverse discrimination against people who deserve admission on their merits. Some people reject the torture of terror suspects as a moral abomination unworthy of a free society, while others defend it as a last resort to prevent a terrorist attack.

Elections are won and lost on these disagreements. The so-called culture wars are fought over them. Given the passion and intensity with which we debate moral questions in public life, we might be tempted to think that our moral convictions are fixed once and for all, by upbringing or faith, beyond the reach of reason.

But if this were true, moral persuasion would be inconceivable, and what we take to be public debate about justice and rights would be nothing more than a volley of dogmatic assertions, an ideological food fight.

At its worst, our politics comes close to this condition. But it need not be this way. Sometimes, an argument can change our minds. How, then, can we reason our way through the contested terrain of justice and injustice, equality and inequality, individual rights and the common good? This book tries to answer that question.

One way to begin is to notice how moral reflection emerges naturally from an encounter with a hard moral question. We start with an opinion, or a conviction, about the right thing to do: “Turn the trolley onto the side track,” Then we reflect on the reason for our conviction, and seek out the principle on which it is based: “Better to sacrifice one life to avoid the death of many.” Then, confronted with a situation that confounds the principle, we are pitched into confusion: “I thought it was always right to save as many lives as possible, and yet it seems wrong to push the man off the bridge (or to kill the unarmed goat-herds).” Feeling the force of that confusion, and the pressure to sort it out, is the impulse to philosophy.

Confronted with this tension, we may revise our judgment about the right thing to do, or rethink the principle we initially espoused. As we encounter new situations, we move back and forth between our judgments and our principles, revising each in light of the other. This turning of mind, from the world of action to the realm of reasons and back again, is what moral reflection consists in.

This way of conceiving moral argument, as a dialectic between our judgments about particular situations and the principles we affirm on reflection, has a long tradition. It goes back to the dialogues of Socrates and the moral philosophy of Aristotle. But notwithstanding its ancient lineage, it is open to the following challenge:

If moral reflection consists in seeking a fit between the judgments we make and the principles we affirm, how can such reflection lead us to justice, or moral truth? Even if we succeed, over a lifetime, in bringing our moral intuitions and principled commitments into alignment, what confidence can we have that the result is anything more than a self-consistent skein of prejudice?

The answer is that moral reflection is not a solitary pursuit but a public endeavor. It requires an interlocutor — a friend, a neighbor, a comrade, a fellow citizen, Sometimes the interlocutor can be imagined rather than real, as when we argue with ourselves. But we cannot discover the meaning of justice or the best way to live through introspection alone.

In Plato’s Republic, Socrates compares ordinary citizens to a group of prisoners confined in a cave. All they ever see is the play of shadows on the wall, a reflection of objects they can never apprehend. Only the philosopher, in this account, is able to ascend from the cave to the bright light of day, where he sees things as they really are. Socrates suggests that, having glimpsed the sun, only the philosopher is fit to rule the cave dwellers, if he can somehow be coaxed back into the darkness where they live.

Plato’s point is that to grasp the meaning of justice and the nature of the good life, we must rise above the prejudices and routines of everyday life. He is right, I think, but only in part. The claims of the cave must be given their due. If moral reflection is dialectical — if it moves back and forth between the judgments we make in concrete situations and the principles that inform those judgments — it needs opinions and convictions, however partial and untutored, as ground and grist. A philosophy untouched by the shadows on the wall can only yield a sterile utopia.

When moral reflection turns political, when it asks what laws should govern our collective life, it needs some engagement with the tumult of the city, with the arguments and incidents that roil the public mind. Debates over bailouts and price gouging, income inequality and affirmative action, military service and same-sex marriage, are the stuff of political philosophy. They prompt us to articulate and justify our moral and political convictions, not only among family and friends but also in the demanding company of our fellow citizens.

More demanding still is the company of political philosophers, ancient and modern, who thought through, in sometimes radical and surprising ways, the ideas that animate our civic life — justice and rights, obligation and consent, honor and virtue, morality and law. Aristotle, Immanuel Kant, John Stuart Mill, and John Rawls (and I would humbly add, the New Testament. DJ) all figure in such discussions.”

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DOING THE RIGHT THING

April 30, 2010

It’s all one great big bloody mire.
Inspector Erlendur Sveinsson

Inspector Sveinsson is the main character in Arnaldur Indridason’s Jar City. While working on prepping the post below I got to thinking about my love of detective stories in the context of justice. As you read below you will see that justice really involves some form of distributing welfare, respect or virtue. As Michael Sandel shows, we can consider justice in the context of a philosopher’s hypothetical or real stories but it seems that in each case we somehow never get to the truth of the matter.

My little epiphany was that we still thirst for justice much the way we thirst for love. Our fallen world gives us only dribs or drabs of both while we long for endless fountains of the stuff. We wind up either becoming cynics or Saints — not much in between, really. The choice is pretty stark. Along the way we read mysteries or detective stories to satisfy our urge to know the truths that we don’t find in our real lives. On to the post:

This is part of a discussion in the book Justice — What’s the Right Thing To Do by Michael J. Sandel. It also forms part of the PBS series of the same name. Justice is one of the most popular courses in Harvard’s history and the book also has some interesting views on same-sex marriage that I’ll be presenting. First some thoughts that lay the foundation for Michael Sandel’s approach to the topic.

In the summer of  20O4, Hurricane Charley roared out of the Gulf of Mexico and swept across Florida to the Atlantic Ocean. The storm claimed twenty-two lives and caused $11 billion in damage.’ It also left in its wake a debate about price gouging

At a gas station in Orlando, they were selling two-dollar bags of ice for ten dollars. Lacking power for refrigerators or air-conditioning in the middle of August, many people had little choice but to pay up.

Downed trees heightened demand for chain saws and roof repairs. Contractors offered to clear two trees off a homeowner’s roof — for $23,000. Stores that normally sold small household generators for $250 were now asking $2,000. A seventy-seven-year-old woman fleeing the hurricane with her elderly husband and handicapped daughter was charged $160 per night for a motel room that normally goes for $40

Many Floridians were angered by the inflated prices. “After Storm Come the Vultures,” read a headline in USA Today. One resident, told it would cost $10,500 to remove a fallen tree from his roof, said it was wrong for people to “try to capitalize on other people’s hardship and misery.” Charlie Crist, the state’s attorney general, agreed: “It is astounding to me, the level of greed that someone must have in their soul to he willing to take advantage of someone suffering in the wake of a hurricane.”

Florida has a law against price gouging, and in the aftermath of the hurricane, the attorney general’s office received more than two thousand complaints. Some led to successful lawsuits. A Days Inn in West Palm Beach had to pay $70,000 in penalties and restitution for overcharging customers.4

But even as Crist set about enforcing the price-gouging law, some economists argued that the law — and the public outrage — were misconceived. In medieval times, philosophers and theologians believed that the exchange of goods should he governed by a “just price,” determined by tradition or the intrinsic value of things. But in market societies, the economists observed, prices are set by supply and demand. There is no such thing as a “just price.”

Thomas Sowell, a free-market economist, called price gouging an “emotionally powerful but economically meaningless expression that most economists pay no attention to, because itseems too confused to bother with.” Writing in the Tampa Tribune, Sowell sought to explain “how ‘price gouging’ helps Floridians.” Charges of price gouging arise “when prices are significantly higher than what people have been used to,” Sowell wrote. But “the price levels that you happen to be used to” are not morally sacrosanct. They are no more “special or ‘fair’ than other prices” that market conditions — including those prompted by a hurricane — may bring about.

Higher prices for ice, bottled water, roof repairs, generators, and motel rooms have the advantage, Sowell argued, of limiting the use of such things by consumers and increasing incentives for suppliers in far-off places to provide the goods and services most needed in the hurricane’s aftermath. If ice fetches ten dollars a bag when Floridians are facing power outages in the August heat, ice manufacturers will find itworth their while to produce and ship more of it.There is nothing unjust about these prices, Sowell explained; they simply reflect the value that buyers and sellers choose to place on the things they exchange.

Jeff Jacoby, a pro-market commentator writing in the Boston Globe, argued against price-gouging laws on similar grounds: “It isn’t gouging to charge what the market will bear. It isn’t greedy or brazen. It’s how goods and services get allocated in a free society.” Jacoby acknowledged that the “price spikes are infuriating, especially to someone whose life has just been thrown into turmoil by a deadly storm.” But public anger is no justification for interfering with the free market. By providing incentives for suppliers to produce more of the needed goods, the seemingly exorbitant prices “do far more good than harm.” His conclusion: “Demonizing vendors won’t speed Florida’s recovery. Letting them go about their business will.”

Attorney General Crist (a Republican who would later be elected governor of Florida) published an op-ed piece in the Tampa paper defending the law against price gouging: “In limes of emergency, government cannot remain on the sidelines while people are charged unconscionable prices as they flee for their lives or seek the basic commodities for their families after a hurricane.” Crist rejected the notion that these “unconscionable” prices reflected a truly free exchange:

This is not the normal free market situation where willing buyers freely elect to enter into the marketplace and meet willing sellers, where a price is agreed upon based on supply and demand, In an emergency, buyers under duress have no freedom. Their purchases of necessities like safe lodging are forced.

The debate about price gouging that arose in the aftermath of Hurricane Charley raises hard questions of morality and law: Is it wrong for sellers of goods and services to take advantage of a natural disaster by charging whatever the market will bear? If so, what, if anything, should the law do about it? Should the state prohibit price gouging, even if doing so interferes with the freedom of buyers and sellers to make whatever deals they choose?

Welfare, Freedom and Virtue

These questions are not only about how individuals should treat one another. They are also about what the law should be, and about how society should be organized. They are questions about justice. To answer them, we have to explore the meaning of justice. In fact, we’ve already begun to do so. If you look closely at the price-gouging debate, you’ll notice that the arguments for and against price-gouging laws revolve around three ideas: maximizing welfare, respecting freedom, and promoting virtue. Each of these ideas points to a different way of thinking about justice.

The standard case for unfettered markets rests on two claims — one about welfare, the other about freedom. First, markets promote the welfare of society as a whole by providing incentives for people to work hard supplying the goods that other people want. (In common parlance, we often equate welfare with economic prosperity, though welfare is a broader concept that can include noneconomic aspects of social well-being.) Second, markets respect individual freedom; rather than impose a certain value on goods and services, markets let people choose for themselves what value to place on the things they exchange.

Not surprisingly, the opponents of price-gouging laws invoke these two familiar arguments for free markets. How do defenders of price gouging laws respond? First, they argue that the welfare of society as whole is not really served by the exorbitant prices charged in hard times. Even if high prices call forth a greater supply of goods, this benefit has to be weighed against the burden such prices impose on those least able to afford them, For the affluent, paying inflated prices for a gallon of gas or a motel room in a storm may be an annoyance; but for those of modest means, such prices pose a genuine hardship, one that might lead them to stay in harm’s way rather than flee to safety. Proponents of price-gouging laws argue that any estimate of the general welfare must include the pain and suffering of those who may be priced out of basic necessities during an emergency.

Second, defenders of price-gouging laws maintain that, under certain conditions, the free market is not truly free. As Crist points out, “buyers under duress have no freedom. Their purchases of necessities like safe lodging are forced.” If you’re fleeing a hurricane with your family, the exorbitant price you pay for gas or shelter is not really a voluntary exchange. It’s something closer to extortion. So to decide whether price-gouging laws are justified, we need to assess these competing accounts of welfare and of freedom.

But we also need to consider one further argument. Much public support for price-gouging laws comes from something more visceral than welfare or freedom. People are outraged at “vultures” who prey on the desperation of others and want them punished — not rewarded with windfall profits. Such sentiments are often dismissed as atavistic emotions that should not interfere with public policy or law As Jacoby writes, “Demonizing vendors won’t speed Florida’s recovery.”

But the outrage at price-gougers is more than mindless anger. It gestures at a moral argument worth taking seriously. Outrage is the special kind of anger you feel when you believe that people are getting things they don’t deserve. Outrage of this kind is anger at injustice.

Crist touched on the moral source of the outrage when he described the “greed that someone must have in their soul to be willing to take advantage of someone suffering in the wake of a hurricane.” He did not explicitly connect this observation to price-gouging laws. But implicit in his comment is something like the following argument, which might be called the virtue argument:

Greed is a vice, a bad way of being, especially when it makes people oblivious to the suffering of others. More than a personal vice, it is at odds with civic virtue. In times of trouble, a good society pulls together. Rather than press for maximum advantage, people look out for one another. A society in which people exploit their neighbors for financial gain in times of crisis is not a good society. Excessive greed is therefore a vice that a good society should discourage if it can. Price- gouging laws cannot banish greed, but they can at least restrain its most brazen expression, and signal society’s disapproval of it. By punishing greedy behavior rather than rewarding it, society affirms the civic virtue of shared sacrifice for the common good.

To acknowledge the moral force of the virtue argument is not to insist that it must always prevail over competing considerations. You might conclude, in some instances, that a hurricane-stricken community should make a devil’s bargain — allow price gouging in hopes of attracting an army of roofers and contractors from far and wide, even at the moral cost of sanctioning greed. Repair the roofs now and the social fabric later. What’s important to notice, however, is that the debate about price-gouging laws is not simply about welfare and freedom. It is also about virtue — about cultivating the attitudes and dispositions, the qualities of character, on which a good society depends.

Some people, including many who support price-gouging laws, find the virtue argument discomfiting. The reason: It seems more judgmental than arguments that appeal to welfare and freedom. To ask whether a policy will speed economic recovery or spur economic growth does not involve judging people’s preferences. It assumes that everyone prefers more income rather than less, and it doesn’t pass judgment on how they spend their money. Similarly, to ask whether, under conditions of duress, people are actually free to choose doesn’t require evaluating their choices. The question is whether, or to what extent, people are free rather than coerced.

The virtue argument, by contrast, rests on a judgment that greed is a vice that the state should discourage. But who is to judge what is virtue and what is vice? Don’t citizens of pluralist societies disagree about such things? And isn’t it dangerous to impose judgments about virtue through law? In the face of these worries, many people hold that government should be neutral on matters of virtue and vice; it should not try to cultivate good attitudes or discourage bad ones.

So when we probe our reactions to price gouging, we find ourselves pulled in two directions: We are outraged when people get things they don’t deserve; greed that preys on human misery, we think, should be punished, not rewarded. And yet we worry when judgments about virtue find their way into law.

This dilemma points to one of the great questions of political philosophy: Does a just society seek to promote the virtue of its citizens? Or should law be neutral toward competing conceptions of virtue, so that citizens can be free to choose for themselves the best way to live?

According to the textbook account, this question divides ancient and modern political thought. In one important respect, the textbook is right. Aristotle teaches that justice means giving people what they deserve. And in order to determine who deserves what, we have to determine what virtues are worthy of honor and reward. Aristotle maintains that we can’t figure out what a just constitution is without first reflecting on the most desirable way of life. For him, law can’t be neutral on questions of the good life.

By contrast, modern political philosophers — from Immanuel Kant in the eighteenth century to John Rawls in the twentieth century — argue that the principles of justice that define our rights should not rest on any particular conception of virtue, or of the best way to live. Instead, a just society respects each person’s freedom to choose his or her own conception of the good life.

So you might say that ancient theories of justice start with virtue, while modern theories start with freedom. We will explore the strengths and weaknesses of each. But it’s worth noticing at the outset that this contrast can mislead.

For if we turn our gaze to the arguments about justice that animate contemporary politics — not among philosophers but among ordinary men and women — we find a more complicated picture. It’s true that most of our arguments are about promoting prosperity and respecting individual freedom, at least on the surface. But underlying these arguments, and sometimes contending with them, we can often glimpse another set of convictions — about what virtues are worthy of honor and reward, and what way of life a good society should promote. Devoted though we are to prosperity and freedom, we can’t quite shake off the judgmental strand of justice. The conviction that justice involves virtue as well as choice runs deep. Thinking about justice seems inescapably to engage us in thinking about the best way to live.

What Wounds Deserve the Purple Heart

On some issues, questions of virtue and honor are too obvious to deny. Consider the recent debate over who should qualify for the Purple Heart. Since 1932, the U.S. military has awarded the medal to soldiers wounded or killed in battle by enemy action. In addition to the honor, the medal entitles recipients to special privileges in veterans’ hospitals.

Since the beginning of the current wars in Iraq and Afghanistan, growing numbers of veterans have been diagnosed with post-traumatic stress disorder and treated for the condition. Symptoms include recurring nightmares, severe depression, and suicide. At least three hundred thousand veterans reportedly suffer from traumatic stress or major depression. Advocates for these veterans have proposed that they, too, should qualify for the Purple Heart. Since psychological injuries can be at least as debilitating as physical ones, they argue, soldiers who suffer these wounds should receive the medal.

After a Pentagon advisory group studied the question, the Pentagon announced, in 2009, that the Purple Heart would be reserved for soldiers with physical injuries. Veterans suffering from mental disorders and psychological trauma would not be eligible, even though they qualify for government-supported medical treatment and disability payments. The Pentagon offered two reasons for its decision: traumatic stress disorders are not intentionally caused by enemy action, and they are difficult to diagnose objectively.

Did the Pentagon make the right decision? Taken by themselves, its reasons are unconvincing. In the Iraq War, one of the most common injuries recognized with the Purple Heart has been a punctured eardrum, caused by explosions at close range. But unlike bullets and bombs, such explosions are not a deliberate enemy tactic intended to injure or kill; they are (like traumatic stress) a damaging side effect of battlefield action. And while traumatic disorders may be more difficult to diagnose than a broken limb, the injury they inflict can be more and long-lasting.

As the wider debate about the Purple Heart revealed, the real issue is about the meaning of the medal and the virtues it honors. What, then, are the relevant virtues? Unlike other military medals, the Purple Heart honors sacrifice, not bravery. It requires no heroic act, only an injury inflicted by the enemy.The question is what kind of injury should count.

A veteran’s group called the Military Order of the Purple Heart opposed awarding the medal for psychological injuries, claiming that doing so would “debase” the honor. A spokesman for the group stated that “shedding blood” should be an essential qualification. He didn’t explain why bloodless injuries shouldn’t count. But Tyler F. Boudreau, a former Marine captain who favors including psychological injuries, offers a compelling analysis of the dispute. He attributes the opposition to a deep-seated attitude in the military that views post-traumatic stress as a kind of weakness. “The same culture that demands tough-mindedness also encourages skepticism toward the suggestion that the violence of war can hurt the healthiest of minds . . . Sadly, as long as our military culture bears at least a quiet contempt for the psychological wounds of war, it is unlikely those veterans will ever see a Purple Heart.”

So the debate over the Purple Heart is more than a medical or clinical dispute about how to determine the veracity of injury. At the heart of the disagreement are rival conceptions of moral character and military valor. Those who insist that only bleeding wounds should count believe that post-traumatic stress reflects a weakness of character unworthy of honor. Those who believe that psychological wounds should qualify argue that veterans suffering long-term trauma and severe depression have sacrificed for their country as surely and as honorably, as those who’ve lost a limb.

The dispute over the Purple Heart illustrates the moral logic of Aristotle’s theory of justice. We can’t determine who deserves a military medal without asking what virtues the medal properly honors. And to answer that question, we have to assess competing conceptions of character and sacrifice. -

It might be argued that military medals are a special case, a throwback to an ancient ethic of honor and virtue. These days, most of our arguments about justice are about how to distribute the fruits of prosperity, or the burdens of hard times, and how to define the basic rights of citizens. In these domains, considerations of welfare and freedom predominate. But arguments about the rights and wrongs of economic arrangements often lead us back to Aristotle’s question of what people morally deserve, and why.

Bailout Outrage

The public furor over the financial crisis of 2008-09 is a case in point. For years, stock prices and real estate values had climbed. The reckoning came when the housing bubble burst. Wall Street banks and financial institutions had made billions of dollars on complex investments backed by mortgages whose value now plunged. Once proud Wall Street firms teetered on the edge of collapse. The stock market tanked, devastating not only big investors but also ordinary Americans, whose retirement accounts lost much of their value. The total wealth of American families fell by $11 trillion in 2008, an amount equal to the combined annual output of Germany, Japan, and the UK.

In October 2008, President George W Bush asked Congress for $700 billion to bail out the nation’s big banks and financial firms. It didn’t seem fair that Wall Street had enjoyed huge profits during the good times and was now asking taxpayers to foot the bill when things had gone had. But there seemed no alternative. The banks and financial firms had grown so vast and so entwined with every aspect of the economy that their collapse might bring down the entire financial system.

They were “too big to fail.” No one claimed that the banks and investment houses deserved the money. Their reckless bets (enabled by inadequate government regulation) had created the crisis. But here was a case where the welfare of the economy as a whole seemed to outweigh considerations of fairness. Congress reluctantly appropriated the bailout funds.

Then came the bonuses. Shortly after the bailout money began to flow, news accounts revealed that some of the companies now on the public dole were awarding millions of dollars in bonuses to their executives. The most egregious case involved the American International Group (A.I.G.), an insurance giant brought to ruin by the risky investments of its financial products unit. Despite having been rescued with massive infusions of government funds (totaling $173 billion), the company paid $165 million in bonuses to executives in the very division that had precipitated the crisis. Seventy-three employees received bonuses of $1 million or more.

News of the bonuses set off a firestorm of public protest. This time, the outrage was not about ten-dollar bags of ice or overpriced motel rooms. It was about lavish rewards subsidized with taxpayer funds to members of the division that had helped bring the global financial system to near meltdown. Something was wrong with this picture. Although the U.S. government now owned 80 percent of the company, the treasury secretary pleaded in vain with A,I.G.’s government-appointed CEO to rescind the bonuses. “We cannot attract and retain the best and the brightest talent,” the CEO replied, “if employees believe their compensation is subject to continued and arbitrary adjustment by the U.S. Treasury.” He claimed the employees’ talents were needed to unload the toxic assets for the benefit of the taxpayers, who, after all, owned most of the company)

The public reacted with fury. A full-page headline in the tabloid New York Post captured the sentiments of many: “Not So Fast You Greedy Bastards.” The U.S. House of Representatives sought to claw back the payments by approving a bill that would impose a 90 percent tax on bonuses paid to employees of companies that received substantial bailout funds. Under pressure from NewYork attorney general Andrew Cuomo, fifteen of the top twenty A.I.G. bonus recipients agreed to return the payments, and some $5O million was recouped in all. This gesture assuaged public anger to some degree, and support for the punitive tax measure faded in the Senate. But the episode left the public reluctant to spend more to clean up the mess the financial in-dusty had created.

At the heart of the bailout outrage was a sense of injustice. Even before the bonus issue erupted, public support for the bailout was hesitant and conflicted. Americans were torn between the need to prevent an economic meltdown that would hurt everyone and their belief that funneling massive sums to failed banks and investment companies was deeply unfair. To avoid economic disaster, Congress and the public acceded. But morally speaking, it had felt all along like a kind of extortion.

Underlying the bailout outrage was a belief about moral desert: The executives receiving the bonuses (and the companies receiving the bailouts) didn’t deserve them. But why didn’t they? The reason may be less obvious than it seems. Consider two possible answers — one is about greed, the other about failure.

One source of outrage was that the bonuses seemed to reward greed, as the tabloid headline indelicately suggested. The public found this morally unpalatable. Not only the bonuses but the bailout as a whole seemed, perversely, to reward greedy behavior rather than punish it. The derivatives traders had landed their company, and the country, in dire financial peril — by making reckless investments in pursuit of ever-greater profits. Having pocketed the profits when times were good, they saw nothing wrong with million-dollar bonuses even after their investments had come to ruin.

The greed critique was voiced not only by the tabloids, but also (in more decorous versions) by public officials. Senator Sherrod Brown (D.Ohio) said that A.I.G.’s behavior “smacks of greed, arrogance, and worse.”President Obama stated that A.I.G. “finds itself in financial distress due to recklessness and greed.”

The problem with the greed critique is that it doesn’t distinguish the rewards bestowed by the bailout after the crash from the rewards bestowed by markets when times were flush. Greed is a vice, a bad attitude, an excessive, single-minded desire for gain. So it’s understandable that people aren’t keen to reward it. But is there any reason to assume that the recipients of bailout bonuses are any greedier now than they were a few years ago, when they were riding high and reaping even greater rewards?

Wall Street traders, bankers, and hedge fund managers are a hard-charging lot. The pursuit of financial gain is what they do for a living. Whether or not their vocation taints their character, their virtue is unlikely to rise or fall with the stock market. So if it’s wrong to reward greed with big bailout bonuses, isn’t it also wrong to reward it with market largess? The public was outraged when, in 2008, Wall Street firms (some on taxpayer-subsidized life support) handed out $16 billion in bonuses. But this figure was less than half the amounts paid out in 2006 ($34 billion) and 2007 ($33 billion) If greed is the reason they don’t deserve the money now, on what basis can it be said they deserved the money then?

One obvious difference is that bailout bonuses come from the taxpayer while the bonuses paid in good times come from company earnings. If the outrage is based on the conviction that the bonuses are undeserved, however, the source of the payment is not morally decisive. But it does provide a clue: the reason the bonuses are coming from the taxpayer is that the companies have failed. This takes us to the heart of the complaint. The American public’s real objection to the bonuses — and the bailout — is not that they reward greed but that they reward failure.

Americans are harder on failure than on greed. In market-driven societies, ambitious people are expected to pursue their interests vigorously, and the line between self-interest and greed often blurs. But the line between success and failure is etched more sharply. And the idea that people deserve the rewards that success bestows is central to the American dream.

Notwithstanding his passing reference to greed, President Obama understood that rewarding failure was the deeper source of dissonance and outrage. In announcing limits on executive pay at companies receiving bailout funds, Obama identified the real source of bailout outrage:

This is America. We don’t disparage wealth. We don’t begrudge anybody for achieving success. And we certainly believe that success should be rewarded. But what gets people upset — and rightfully so — are executives being rewarded for failure, especially when those rewards are subsidized by U.S. taxpayers.

One of the most bizarre statements about bailout ethics came from Senator Charles Grassley (R-Iowa), a fiscal conservative from the heartland. At the height of the bonus furor, Grassley said in an Iowa radio interview that what bothered him most was the refusal of the corporate executives to take any blame for their failures. He would “feel a bit better towards them if they would follow the Japanese example and come before the American people and take that deep bow and say, ‘I’m sorry,’ and then either do one of two things — resign or go commit suicide.”

Grassley later explained that he was not calling on the executives to commit suicide. But he did want them to accept responsibility for their failure, to show contrition, and to offer a public apology. “I haven’t heard this from CEOs, and it just makes it very difficult for the taxpayers of my district to just keep shoveling money out the door.”

Grassley’s comments support my hunch that the bailout anger was not mainly about greed; what most offended Americans’ sense of justice was that their tax dollars were being used to reward failure. If that’s right, it remains to ask whether this view of the bailouts was justified. Were the CEOs and top executives of the big banks and investment firms really to blame for the financial crisis? Many of the executives didn’t think so. Testifying before congressional committees investigating the financial crisis, they insisted they had done all they could with the information available to them. The former chief executive of Bear Stearns, a Wall Street investment firm that collapsed in 2008, said he’d pondered long and hard whether he could have done anything differently. He concluded he’d done all he could. “I just simply have not been able to come up with anything … that would have made a difference to the situation we faced.”

Other CEOs of failed companies agreed, insisting that they were victims “of a financial tsunami” beyond their control. A similar attitude extended to young traders, who had a hard time understanding the public’s fury about their bonuses. “There’s no sympathy for us anywhere,” a Wall Street trader told a reporter for Vanity Fair. “But it’s not as if we weren’t working hard.”

The tsunami metaphor became part of bailout vernacular, especially in financial circles. If the executives are right that the failure of their companies was due to larger economic forces, not their own decisions, this would explain why they didn’t express the remorse that Senator Grassley wanted to hear. But it also raises a far-reaching question about failure, success, and justice.

If big, systemic economic forces account for the disastrous loses of 2008 and 2009, couldn’t it be argued that they also account for the dazzling gains of earlier years? If the weather is to blame for the bad years, how can it be that the talent, wisdom, and hard work of bankers, traders, and Wall Street executives are responsible for the stupendous returns that occurred when the sun was shining?

Confronted with public outrage over paying bonuses for failure, the CEOs argued that financial returns are not wholly their own doing, but the product of forces beyond their control. They may have a point. But if this is true, there’s good reason to question their claim to outsized compensation when times are good. Surely the end of the cold war, the globalization of trade and capital markets, the rise of personal computers and the Internet, and a host of other factors help explain the success of the financial industry during its run in the 1 990s and in the early years of the twenty-first century.

In 2007, CEOs at major U.S. corporations were paid 344 times the pay of the average worker. On what grounds, if any, do executives deserve to make that much more than their employees? Most of them work hard and bring talent to their work. But consider this: In 1980, CEOs earned only 42 times what their workers did. Were executives less talented and hardworking in 1980 than they are today? Or do pay differentials reflect contingencies unrelated to talents and skills?

Or compare the level of executive compensation in the United States with that in other countries. CEOs at top U.S. companies earn an average of $13.3 million per year (using 2004-2006 data), compared to $6.6 million for European chief executives and $1.5 million for CEOs in Japan. Are American executives twice as deserving as their European counterparts, and nine times as deserving as Japanese CEOs? Or do these differences also reflect factors unrelated to the effort and talent that executives bring to their jobs?

The bailout outrage that gripped the United States in early 2009 expressed the widely held view that people who wreck the companies they run with risky investments don’t deserve to be rewarded with millions of dollars in bonuses. But the argument over the bonuses raises questions about who deserves what when times are good. Do the successful deserve the bounty that markets bestow upon them, or does that bounty depend on factors beyond their control? And what are the implications for the mutual obligations of citizens in good times and hard times? Whether the financial crisis will prompt public debate on these broader questions remains to he seen.
Michael Sandel

At the least you are beginning to see that the concept of justice is becoming elusive – what we seem to be talking about in many of these cases really wind up being about other things all together. The same phenomena underlies Ray Carver’s famous short story “What We Talk About When We Talk About Love” a reading summary of which you will find under the pages section of PayingAttentiontotheSky. Homosexualists speak of the issue of gay marriage as one of simple fairness or justice. Perhaps it’s not as simple as they might have us believe. My next post from Michael Sandel will show how justice has been approached.

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