Philosophy

I’m not making any predictions, but this quote attributed to 18th-century British lawyer Alexander Tytler about civilizational cycles is sobering:

“A democracy is always temporary in nature; it simply cannot exist as a permanent form of government. A democracy will continue to exist up until the time that voters discover that they can vote themselves generous gifts from the public treasury. From that moment on, the majority always votes for the candidates who promise the most benefits from the public treasury, with the result that every democracy will finally collapse due to loose fiscal policy, which is always followed by a dictatorship. The average age of the world’s greatest civilizations from the beginning of history has been about 200 years. During those 200 years, these nations always progressed through the following sequence:

• From bondage to spiritual faith;
• From spiritual faith to great courage;
• From courage to liberty;
• From liberty to abundance;
• From abundance to complacency;
• From complacency to apathy;
• From apathy to dependence;
• From dependence back into bondage.”

Whether it was Tytler or someone else, whether the 200-year cycle is accurate, or whether this assumption of historical determinism is valid, the words are a warning. Some of the steps are like Plato’s description of the movement from timarchy to oligarchy to democracy to tyranny. Just exactly where we are in this sequence in the U.S. of today is an interesting speculation. Tax hikes, regulatory micromanagement and intrusion, the strong sense of entitlement to be cared for that increasing segments of society exhibit as a result of the welfare state, massive deficits as tax hikes and regulation throttle wealth creation and cannot pay for the welfare state, a currency under such stress it appears headed for debasement (initial steps already having been taken through the elimination of silver and gold as backstops for paper), class warfare rhetoric from a party whose lust for power caused it to lose its grip on sanity, lack of social “substance” and shared values (faith, morals) and an “anything goes” morality that undermine the private voluntary institutions that mediate between individuals and government and shield the former from the coercive excesses of the latter. The great German lawyer/political scientist/sociologist Max Weber had a similar view of the decline of individual freedom through the inevitable progression of the state into a bureaucratic mode that increasingly seeks to rationalize, and thereby control, life with a myriad of intrusive rules and regulations. There are no sure things in history, but the Obama agenda, looked at in light of these proposed axioms of historical movement, takes on a sinister cast.

A quote attributed to Johann Wolfgang von Goethe says that “Newton has shown us everything about color, except what we see.” Whether or not it is Goethe’s, and whether he meant it as an artistic or scientific critique, the quote describes the limitations of scientific investigation and of the rigorous philosophic materialism on which it is based. Per Occam’s Razor and similar reductive imperatives, and building on an ontological heritage connected to pre-Socratic material cosmology, science looks for the simplest common causes for all phenomena. The mission of scientific inquiry is to break down apparently complex phenomena into ever more elemental units of material reality and to reconstruct such phenomena on the basis of these building blocks.

There are problems with such an approach even for the physical sciences, as the adjustment of mathematical formulae and the hypothesizing of ever more bizarre and contorted forms of “materia,” both on the macro scale of the physical universe and on the micro scale of the sub-atomic particles, attests. It never quite seems to explain the complexity of either, as every hypothesis that is eventually turned into a scientific theory and then runs into problems with observed reality shows. The subatomic “particle zoo,” wave/particle issues, ”string theory,” and, on the other end of the scale of dimension, cosmic dark energy, dark matter, wormholes, multiverse hypothesis, are evidence of the challenges faced by scientific materialism, and, in the first group at least, of the imperative to explain through relentless reductionism.

The problem of analytical reductionism is even greater in the life sciences. The, materially speaking, self-directed growth that is lacking in purely physical (non-biological) units is certainly manifest in “life” and adds a new dimension to the problem of explaining complexity. Add to that the emergence of higher life forms, consciousness and, eventually, human self-consciousness, and the distances that have to be crossed between the basic material units and the observed complex phenomena become ever more challenging. The scientific explanation becomes less and less satisfying as a complete account. Mere biochemical explanations of life’s processes, and rigorously material evolutionary theories run into very credible challenges. The debate among material Darwinists and Intelligent Design theory is stirred by the difficulty of explaining any and all complexities through, ultimately, scientific reductionism. Further, the debate probes the uneasy modern demarcation that exists between scientific and other explanations, from religious revelation, to speculative metaphysics, to literary and artistic insight.

Scientific inquiry can reveal much about the universe and our experiences in it. It has advanced theoretical and practical knowledge with immeasurable benefit to humanity. But its strength, relying on simple component building blocks to explain diverse and complex phenomena, is also its weakness. Such emphasis on the particulars fails to explain adequately the existence of the complex entity in its own right. Those entities are not just composed of the building blocks but have taken on existence and meaning of their own. If genes cannot themselves determine the three-dimensional form of a living being, that form comes from something else. The same biochemical components may characterize the cells of fish and humans, but fish are not humans. It is left to other modes of inquiry to observe and explain the reality and ontological meaning of fish and of humans. Those must be modes of inquiry that operate on the plane of complex phenomena, as do art, literature, philosophy, and religion. They see the whole, not just a collection of parts, and their manner of explanation resonates in us.

It is that lack of epistemological completeness of scientific material reductionism that Goethe was lamenting (or contemptuously deriding). There is something rather desperate and pitiable in efforts to describe emotions as merely the brain’s firing of synapses triggered by chemical processes. Imagine hearing your infant described in the way a material biologist would “scientifically” describe him or her. Imagine hearing the emotions you feel when your loved one embraces and kisses you described in such material terms. Would that adequately describe that infant or that romantic experience? Would it seem plain weird, and, if so, isn’t Goethe right?

I was reminded of Goethe’s comment when I read this insightful article from last year by Jonah Lehrer in the L.A. Times. Lehrer challenges neuroscientists to move beyond the reductionism of their materialism to a more embracing science of consciousness. I agree with Lehrer’s critique of the limitations of the current approach for unravelling the mysteries and complexities of consciousness.

I am less sure, though, that science conceptually can do what Lehrer prescribes, that is, to move beyond purely experimental methodology to “additional set[s] of inputs,” such as art. Science in our current construct necessarily is both experiential and experimental in a defined rigorous framework of inquiry. Aristotelian science asked questions beyond those asked by today’s science. But that raised its own problems of investigative clutter, which the modern scientific method has avoided, albeit in exchange for new problems. Rather, I would amend Lehrer’s prescription and seek to move beyond our excessively narrow focus on merely scientific knowledge to a more complete understanding of the complexity of human consciousness based on the full range of human investigation.

Cass Sunstein is a Harvard law professor and a former colleague of sorts of President Obama while at the University of Chicago Law School. He is also Obama’s czar of regulations. That is, Sunstein is in charge of reviewing federal regulations for efficiency and proposing changes and new ergulations. That description is misleading in one sense. Unlike the other czars, such as the recent and not-lamented “czar of green jobs” Van Jones, Sunstein’s position required Senate confirmation. That confirmation, while forthcoming, was only by 57-40, a surprisingly small margin for such an invisible position. More surprising still is that a number of Democrats voted against the appointment (and an equal number of Republicans voted for), which is a reflection, to some extent at least, of Sunstein’s odd views.

Sunstein occasionally has been mentioned as a potential Supreme Court nominee. But I think that, without other intervening experience in a more high-profile government position such as Circuit Court judge, Solicitor General, or at least Assistant Attorney General in charge of the Office of Legal Counsel, Sunstein is not headed to the Supreme Court. Unless Obama gets to reappoint the whole Court, which is an unlikely result in a natural progression of events. The narrow vote to confirm him as regulations czar further spells trouble for him in that regard.

As a law professor, I have heard about Sunstein for a long time. He is a very smart guy and a prolific author of academic publications and a “star” in his fields of regulation and constitutional law. His views are well within the mainstream of the legal academy, if not the population at large. Indeed, compared to most law professors, he might even be on the right side of center. His theories, whose oddness has given him some problems with Senators, gain him favorable attention within the closed universe of academic musings and discussions.

What has gotten him that favorable attention within the rarefied intellectual atmosphere of the academy recently are a couple of works. One, written with a co-author advances the theory of “libertarian paternalism” as a basis for a kinder and gentler regulatory nanny state. The other is the proposition that animals should be able to sue humans over farming and hunting. Though the actual suit would be done by humans, the rights vindicated would be those of animals.

As his nomination stalled, he stepped back from some of his assertions in a confirmation conversion and declared that various of his musings were merely meant to be provocative. I accept that. To an extent. The way to gain positive recognition among academics (in contrast to the real world inhabited by normal human beings) is to say provocative things, though only in a certain ideological direction. I have a provocative thought to offer Sunstein and other academics: Embryos and fetuses are human beings. They are rights-bearing creatures, among which rights are the right to sue and the right to life, i.e., not to be torn apart limb by limb in an abortion obtained because the pregnancy is “inconvenient.” As if that would get positive acceptance among academics! Better to argue for the rights of chickens and deer.

I want to address in this post the animal rights proposition beyond whatever particulars Sunstein proposes. We hear a lot about animal rights recently, a notion that I find to be without merit. Indeed, such a concept is, to borrow from Jeremy Bentham, “nonsense on stilts.”

The problem, as I see it, is the failure to consider the nature of rights accurately. One defense of “animal rights” has been that a legal system can recognize any rights in anyone or anything it wants. Now, at some level, I suppose that’s true. If we want to say that a dog has rights, we certainly can. Same in the case of a dog’s flea, a bush that the dog “marks,” or a dog food dish. That may well be the post-modern relativist approach that, despite the occasional objection, is influenced strongly by normative positivism in law and by the elimination in various strands of “critical studies” of a distinction between law based on reason and politics based on will and power.

From a constitutional standpoint, of course, many provisions refer to “the people,” “person,” or “citizens.” All of these provisions would seem to mean human beings. One amendment, the sixth, refers to “the accused,” which, one supposes, could be extended beyond humans.

But even as to the other provisions, at least one court (the Ninth Circus Court of Appeals, of course) in Cetacean Community v. Bush has said that the Constitution is not limited to humans. After all, the judges “reasoned,” admiralty suits can be brought in the name of ships, and corporations and other fictitious “legal persons” can sue in their names. Therefore, the Constitution’s use of words that commonly denote human characteristics need not be interpreted so restrictively. The Court then added that Congress had not, however, intended to give animals the right to sue. But, presumably Congress could do so, without violating the Constitution’s more ecumenical approach to standing and, by inference, to rights more generally. Of course, were such suits to be brought, humans would have to act as actual litigating plaintiffs. No word as to whether the concept of the “kangaroo court” would undergo political rehabilitation.

This, presumably, is in line with Sunstein’s thinking. But, it seems to me that both his views and those of the Ninth Circuit are the strangest examples of anthropomorphized jural beings since Caligula allegedly tried to make his horse Incitatus a Senator. The problem arises if one wants to go beyond mere declarations of who has rights to considering why something has rights. The examples of ships and corporations cited by the Ninth Circuit all involve human constructs whose existence is not “natural.” The legal fiction of their existence as jural entities is not due to their own existence as natural beings (the view of animals held by Sunstein), but to vindicate legal interests of human beings (the ship owners or the shareholders).

That isn’t the animal rights theory as here expressed, though it has been the basis for protection of animals in other contexts. Thus, endangered species laws has been justified as protecting the human interest of being able to observe such animals. Protection of certain fish can be justified by the human interest of protecting the food supply. A more difficult problem is raised by animal cruelty laws. It is unclear just what human interest is served by them, other than the interest in promoting standards of civilized conduct through legislation based on conceptions of morality.

To get to Sunstein’s position that animals have rights of their own, more is necessary. It has to be established that animals are rights-bearing creatures. Otherwise, why stop with animals and not proceed to rights for lettuce? As many others have done, I will argue that such line-drawing requires that animals be rational and self-conscious actors who belong to a group with at least the potential to grasp the notion of moral choices. Instinctive actions or those based on influences other than a considered awareness of one’s life within a larger group don’t provide a proper basis for rights. At bottom, rights demand an awareness of wrongs in a normative, ethical sense.

That doesn’t mean every particular member of the species must have that consciousness of self and community in its full flower. Otherwise, human fetuses, infants, and toddlers, or the mentally handicapped, might be creatures without rights. Although such individuals often have a less complete fullness of rights consistent with their condition (i.e., a young child has no right to use contraceptives), they are still rights-bearing creatures and share with all other humans certain basic rights to life and liberty.

From a classical perspective, for example that of the Stoics (sometimes said to be the originators of natural law/natural rights theory), humans are the only creatures capable of participating in the moral laws of the universe. Only humans have the power of abstract reasoning and complex linguistic expression to grasp such moral standards (through the application of “right reason”) and make them the basis for an order of living. Only humans can make “moral choices.” It is ridiculous to scold a dog as being “bad” for chewing on a sofa pillow or on Grandpa’s prosthetic leg. It is similarly bizarre to accuse a lion of being “bad” for eating a child. That’s what lions do by nature. In fact, it would be more accurate to call the lion “bad” if the lion passed up the child for some broccoli, as he would be acting inconsistent with his nature. Going back to the dog. Yelling at the dog does not cause the dog to grasp the notion of right and wrong. Rather, he hears what to him is a growling noise and a threatening gesture from someone whose dominance he recognizes. There is a reason why dolphin trainers use fish as incentives, rather than a lecture on the moral rightness of entertaining curious children or on the advantages of human-cetacean cooperation in making profits for the enterprise.

Humans, having such capacity for moral distinctions, are duty-bound to act toward others in ways consistent with that capacity. They have a commensurate right both to have others act in the same manner towards them, and to exercise those rights necessary to allow them to meet the obligations the universal natural moral law imposes on them. Thus, a duty to care for one’s offspring creates a right to direct the upbringing of those children broadly free from meddling by others. Incidentally, a drive is not the same as a right. All living things have a drive to reproduce. That may lead to a moral duty to reproduce, but one constrained to what will optimize the success of the endeavor. Similarly, the right to do so is also constrained to what is commensurate to the duty.

A being whose nature does not admit of such intellectual rationality and moral discrimination is not a rights-bearing creature. No creature other than humans meets that definition. Some might claim that certain animals, such as apes or dogs have the requisite rationality. They point to asserted verbal signing skills. Others point to the supposed intelligence of some dog breeds being the equivalent of young children.

Assuming that the gorilla “communication” is not a product of human projection, and that the dog intelligence is of the same sophistication as that which allows even a two-year old to sing songs and understand relational concepts such as big and small, the animals are at the top of what is for their species an attainable intelligence. The two-year old human is not. Because of the two-year old’s comparative immaturity and incomplete development, he is not held to the moral choices of an adult at that stage. But he is of the type (human) that can exercise such moral discretion, and has the potential to reach that stage of full development to make such moral choices. The brutes do not. Recognition of one’s status as a rights-bearing creature depends on the common characteristics of the group judged in its fully-matured condition, not on the individual peculiarities of particular members of the group. Otherwise, the old or infirm would be less than human and lose their status as rights-bearing creatures. After all, even a mentally infirm human is still a human and is a rights-bearing creature, even if the particular rights he may enjoy freely may be restricted to those he needs commensurate with what can be expected of him as to satisfying moral obligations.

Now, if we suddenly discover that there is the porpoise equivalent of the law of copyright, or of Beethoven’s Fifth Symphony, or of St. Augustine’s Confessions, then we can certainly start talking about imposing moral duties on such animals and trying them in courts of law for dereliction of those duties. By the same token, they would be rights-bearing creatures.

If we try to draw a line between rights-bearing creatures and those who are not on a basis other than their rationality, self-consciousness, and linguistic capacity, we run into problems. There is no other principled basis for distinction. Purely physical factors such as pain sensation or mobility get us nowhere, as they have nothing to do with rights except that we merely say so. Would we declare rats to be rights-bearing creatures? Lobsters? Worms?

But that is exactly where animal rights advocates such as Sunstein take us. It wouldn’t be just animal cruelty or hunting that would be prohibited. So would eating meat (a goal Sunstein probably advocates, in light of his recent other work, Libertarian Paternalism) and even encroaching on animal habitat. Some animal rights activists already liken the fate of threatened animals to genocide. While there may be ways to justify laws whose secondary effects are to the benefit of animals, they have to be based on other than such a faulty conception of animal “rights.”

Some initial remarks concerning Professor Strader’s comment to my initial post questioning his harm/morality distinction. (Original post and comment here.)
A benefit of academic exchanges is that positions can be honed and misconceptions clarified. Professor Strader’s response to my critique of his op-ed is quite helpful in that regard and again raises some interesting points. I will not respond at length to those that he obviously intended as humor, such as his concern about the effects of a boring parental sex life on the welfare of children, and the to him apparently self-evident assumption that a sex life without oral sex (or some other category of non-coital sexual relations) necessarily would be boring. That has to be in jest, as I did not suggest such a connection, and no serious person would. I’d like to see the study that demonstrates that bringing the neighbors or faithful Rover into one’s sex life might make the occasions even less boring and therefore more beneficial to the kids. Perhaps Professor Strader has evidence that the less attention parents spend on the children and the more they chase sexual adventure, the better off children are. “This Christmas, honey, instead of buying the kids toys, let’s just buy us, ahh, toys.” “Yes, and next year, instead of putting in a pool, let’s put in a dungeon! It’ll help make us better parents.”

Nor am I quite sure what to make of the point that we can define anything as harm that we want. At one level that is true, I suppose. But that does not advance our inquiry about the nature of harm. As my civil procedure professor, Arthur Miller, used to say in response to a particularly irrelevant point from a student, “Well, you can argue that the grass is blue, and the Pope’s a Jew. But that doesn’t make it so.” Ah, yes, the epistemological limitations of nominalism.

As to his advice that I consult psychological studies about the equal value of having same-sex couples raise children as opposite sex couples, I’d rather not. I think that it has been shown somewhere that consulting the Oracle at Delphi has more analytic worth and predictive accuracy than do psychological studies. “Best interest of the child” test, anyone? I seem to recall that they used to define homosexuality as a “personality disorder,” a particularly unfortunate and insensitive characterization. Psychological studies, as social studies otherwise, are prone to the phenomenon of proving the researchers’ assumptions. The experimenter’s involvement itself pollutes the results. I’d rather go with the wisdom of the multitudes gained over millennia of experience, examined in light of human nature, than with current fads whose fundamental postulates and definitions change every few decades. Life as the best experiment, and tradition as a source of evidence.

Moreover, the results of the studies that Professor Strader lauds that show no difference in the benefit for children of having same-sex couples or opposite-sex parents raising them would mean that there really is no basis for the proposition that the best (though not the only passable) environment for child raising in general is in the home with the biological parents. If there is no difference, then it really does not matter who the parents are. Parents are interchangeable. There would be no special bond between biological parents and their children, as one generally expects. If that were true, then there should be no difference in the rates of sexual molestation of children between natural parents and step-parents. (There are, and they are significant.) Indeed, if such assumptions are correct, foster parent homes and orphanages (or the state in the Platonic Republic) must be equally suited to biological parents to raise children as a general proposition, since the particulars of the family structure do not matter.

But, on to a response to Professor Strader’s bigger point, that there is a clearly defined contrast between “tangible harm” and “morality.” I don’t believe that he has answered my questions about that contrast, except to talk about how some authors say so, and that courts deal with defining harm in lawsuits. Now, given time constraints, I will have to be excused from reading a multi-volume treatise on harm, exciting as that project sounds. I’ll have to wait for the DVD and content myself with lighter material such as Kant’s Kritik der Reinen Vernunft. It’s the week-end, after all. Perhaps I just do not understand the whole harm versus morality debate that has been going on for only 100 years. It would seem to me, based on my readings of history and jurisprudence, that the study of the interaction among law, morality, and morals/ethics has been going on for a lot longer than that. There are also quite decent briefer explorations of the topic, as, for example, the discussion of paternalism in Natural Law Liberalism.

Of some fundamental issues raised by this debate.
On to more serious matters. One of the difficulties in addressing his argument is to limit the debate. Inevitably, as a point is addressed, another, related one, is raised as one tries to peel the layers of the jurisprudential onion. One of the meta-ideas that Professor Strader’s distinction raises is the nature of the state and its law. That is, is their role one of minimalist referee and policeman to resolve social conflicts and protect basic rights for maximum individual development? Or is the state’s and the law’s role instead an additional one of “guidance” and the development of virtuous individuals and community?

Another such idea is our relation to the community and the line to be drawn between the two. In other words, what is the nature of freedom within community, the relationship between the individual and the group? What is the proper balance, and who decides that?

Another is the nature of the human legal order, whether law derives its authority simply as a self-focused internal order of will, or whether it must derive its legitimacy in relation to some external order of reason.

Then there is the nature of our “rights” that we might claim against the social order. Are those rights ours to claim as a result of our individual autonomy or as participants in a broader order? Put another way, do we define the universe of our rights as sovereign individuals, that is, “natural rights” derived from our fictionalized existence outside at least political community? Or are we always and inevitably participants in an order of nature, that is, an order governed by “natural law” of which man and community are a part and in which “natural rights” originate within that order and result from duties created by that order?

In a related inquiry, what is human dignity? Is it simply freedom and autonomy to make decisions? To have our fellow humans also treat those decisions as equally valid to theirs because we made them? Or, granting the centrality of autonomy to human dignity, does such dignity nevertheless also consist of other factors, such as personal security and comfort in a functioning society? One recalls Homer’s rendition in the Iliad of the Greeks’ contempt for the stateless man; the nihilism of full autonomy but absence of dignity in Hobbes’s state of nature; and the lack of freedom that results from an absence of social conditions that promote human flourishing during civil war, for example.

Finally, there is the problem of the role of courts and legislatures in making the above-stated determinations. Are courts lawmakers, the same as legislatures, in a system that professes to lean towards popular sovereignty and control? If there is a difference due to institutional roles, does that affect political legitimacy and practical competency to decide certain issues, especially in regards to balancing various interests that underlie the conception of law and its relations to morality and morals? What is the importance of constitutional text in defining the role of courts in such undertakings?

Full explorations of these topics (and probably others that would arise) raised by Professor Strader’s attempt to limit the notion of harm would require a major treatise, so I obviously cannot do justice to them in a few brief remarks. I shall touch on them only within the content of my remarks to his main topic of tangible harm versus morality.

By restricting the permissible ends of the criminal law, Professor Strader takes a minimalist view of the state’s role at least in this regard. As a matter of general political ideology, I am quite sympathetic to this view overall. Perhaps, considering my opposition to paternalistic labor laws, for example, I am more sympathetic than he is. Given his criticism of law based on majoritarian morality, Professor Strader obviously has little use for the notion of the state’s fundamental role to promote virtue as reflected in what the community considers civilized and appropriate conduct. That conclusion is reinforced by Professor Strader’s support of constitutional doctrine that seeks to enlist the courts as guardians of legal minimalism and as ultimate authority to balance the natural rights of each person (filtered through the “liberty” provision of the due process clauses) against the judgment of the community as to what best promotes social living.

Again, from a personal political perspective, I am not unsympathetic to such a view that is a reaction (rooted in the 17^th and 18^th century response to the authoritarian early modern state) against the perceived conformism of the intrusive modern state. I just wish on that score that he were more emphatic and move against the stultifying conformism of the modern bureaucratic state by going beyond his focus on the criminal law. One suspects that Professor Strader does not really mind the intrusive state in matters unrelated to the criminal law in regard to sexual matters. Which raises an interesting point. Any intellectual framework that just happens to validate one’s political opinions in all or almost all particulars should be distrusted as a useful organizing principle.

For example, I favor legislatures over courts as the more legitimate and competent bodies to strike the appropriate balance among the competing interests and influences that produce human positive law. But that does not mean that I am not frequently dismayed and even disgusted by legislative action. In turn, though I disagree with them, I can respect those who see a primary role for the courts in striking such a balance through an ambiguous liberty provision in the due process clause against that struck by the legislatures. I actually like, ideologically speaking, many of those results (including the result in Lawrence). More problematic, in terms of intellectual force, are approaches that find such a role only in the protection of sexual acts, but not of other aspects of human liberty, such as the freedom from paternalistic labor laws and protections against amorphous environmental harms, for example.

Once more to the problem of distinguishing harm from morality.
That brings me once more to the definition of harm that Professor Strader advances. As a general proposition, it is clear that prevention of “harm” is the function of law in the first instance and especially of the criminal law (as well as of religion, ethics, manners, and other norms of behavior). But it is the nature of harm that is in dispute. Very broadly, harm is interference with human thriving. Limiting oneself to human behavior, metaphysically speaking, harm is injustice. Injustice, in Socrates’s view, is a lack of balance or harmony among the parts of the soul and among the parts of the community. But, as justice can have different manifestations and applications, so can harm.

Professor Strader seeks to draw a line based on tangible harm, and to forbid the legislature from crossing that line in its attempt to balance the interests of the community and the individual. My point was merely that any attempt to draw a clear distinction between tangible harm and morality as a proper focus of the criminal law has to founder on several cliffs. First, an internal definitional one. What constitutes “tangible harm?” Is it that which is somehow visible? Measurable in money? Where only a particular individual or defined groups of individuals are affected, akin to a jurisprudential “standing” analysis? Anything that has an impact on human thriving more generally? It is on this last approach that laws based on what Professor Strader would dismiss as majoritarian morality are based. Perhaps Professor Strader would recognize as a limiting principle for tangible harm that you can do whatever you want that does not interfere with my right to do likewise, a sort of Kantian law of universal freedom. But the operation of that principle depends…on the definition of harm.

Second, a relational definitional problem. Can we discern a line between “tangible harm” as a self-contained construct and “morality” as a different self-contained construct? To what extent is morality itself a collection of at least some forms of tangible harms?

Third, whether or not morality can be distinguished categorically from tangible harm, why should the community, in principle, not be permitted to enforce all its norms of socially acceptable conduct by criminal law? It goes without saying that, even if the community may properly do so does not mean that it should. That decision of course depends on balancing a number of competing social interests. I would agree that the legislature should consider the type of harm and think long and hard before involving the unwieldy legal mechanism of the law in matters where harm is speculative, slight, indirect, or obscure.

Fourth, why should there be a difference in principle between the criminal law and other aspects of law? Indeed, wouldn’t the argument be that the criminal law inherently is more of an unvarnished expression of community morality? Deprivation of physical liberty is a characteristic of the criminal law and an important consideration in deciding whether a harm is substantial enough to warrant criminalizing the action. But the Constitution also, in the same due process clause, protects one’s rights in non-physical liberty and in property.

Now, I don’t dispute the value of categories as organizational devices to bring order to what otherwise appears to be randomness. One of the distinctive features of the human mind compared to other living things is the ability to impose its order on the world simultaneously at a high level of abstraction and a detailed level of specificity. So I do not disparage the utility of drawing up categories such as direct and indirect harm, tangible and intangible harm, and harm and morality, among others. The fact that we conceive of such things suggests their reality. The fact that we counterpose them conceptually is evidence of their duality. But in particular application, at lower levels of generality, the relationships among general principles in relation to the specific object of inquiry become more nebulous.

Moreover, I am not going to argue that the difficulty of applying categories to particular cases invalidates the project. As one moves to more particular applications, a general principle becomes subject to qualifications and exceptions. This is true of ethical commands, as well. It is also a consideration that underlies the principle of equity as a mediator between a generally operative legal command and the individuals before the court in a specific case. But it is the very difficulty of balancing the factors that call for additional refinements to the content of the general operative principle that raises questions about the competence of courts to make that determination.

The competence of courts as fora for the balancing of individual and social interests and for the definition of harms.
Judicial conflict resolution that focuses on producing winners and losers against whom judgments can be enforced is not the best way to sort out nuances over what constitute proper categories of harm. Courts cannot track well the movement in the practice of custom/morality or the normative scheme of morals/ethics. In fact, when political bodies get ahead of that movement and make law to accelerate change, they are likely to stir up considerable social unrest and opposition, especially if the object of change is entrenched social practice. The debacle of the California Supreme Court’s same-sex marriage decision in May, 2008, or the U.S. Supreme Court’s 1973 abortion decision are good examples. Law almost always trails such movement in morality and morals and reflects it post hoc. “Stateways cannot change folkways,” as the sociologist William Graham Sumner famously declared well over a hundred years ago. But courts, having to wait for disputes to resolve and being not as responsive to political influence, are generally even less sensitive to such movement than legislatures.

Professor Strader points to the function of courts (or, more accurately, juries) in assessing harm and finding that the defendant caused that harm. I am not quite sure what that shows. As best I can tell, it only proves that once a legislature determines that a particular type of conduct produces a societal harm it deems appropriate to recognize through civil or criminal law, finders of fact are competent to assess the facts that show that the defendant committed acts that caused the harm and to evaluate (in a tort situation usually) how much harm he caused. Juries are admonished to take the law as instructed, not to reweigh the competing social and individual interests to decide whether such harm should be recognized through the law or left to other means of social control. Juries that decide to disregard the established legal framework are said to be engaged in “jury nullification.” Judges and most right-thinking lawyers think that such action by the jury usurps the role of the law-making bodies that have defined the harm and provided appropriate legal restraints. Personally, I have little quarrel with jury nullification in criminal cases.

Now, courts, especially in common law systems, traditionally do define lines between law and other human norms, and between types of harm, in determining grounds for legal causes of action. Moreover, in civil cases, juries by their verdicts (especially in negligence and products liability cases) sometimes can effectively shape the boundaries of legally compensable harm. But the superiority of legislatures for such definitional interest balancing, and their greater legitimacy to do so in a democratic polity, is recognized in the principle that statutory law trumps common law. That leaves courts that seek to control such legislative preeminence having to act, as Professor Strader would have it, as constitutional tribunals.

That step does not avoid the same problems of judicial line-drawing. To the extent that the Constitution’s text sets fairly clear boundaries, such as in the ex post facto clause or in the presidential pardoning power, judicial action is less controversial. The people have already defined the constitutional harm. But the due process clause is vague. Precedent is unreliable, unprincipled, and often tautological, when it assumes that which has to be proved in finding a constitutional violation.

An example relevant to Professor Strader’s point is that the Court in Lawrence assumed that which had to be proved, that consensual sodomy was not a harm for legislative action. Based on that determination, the Court concluded that the individual liberty of consensual sodomizing in private could not be overridden by some legislative determination that such behavior contravenes standards of acceptable behavior consistent with necessary social arrangements. In doing so, the Court eliminated a whole class of social harms rooted in “majoritarian morality” from proper legislative purview. At least that’s Professor Strader’s interpretation, if only in regards to sexual matters. As I pointed out before, it remains to be seen whether that indeed is the Court’s jurisprudence. I rather suspect that Lawrence is just another unreliable, unprincipled, and tautological illegitimate exercise of raw judicial power, as we shall see when a less politically advantaged group seeks application of that principle and is rebuffed.

Even on its own merits the Court’s decision is self-contradictory. Thus, its reasoning that the Texas law was now unconstitutional because legislatures were increasingly striking a balance that favored individual liberty of sodomy over the social interest in acceptable (or beneficial) forms of sexual contact proves that the legislatures were responding to social movement on this issue. Why, then, get the Court involved? Moreover, constitutionalizing a matter freezes in place a balance that might be struck differently in the future and makes it more difficult for the law as a whole to respond to such change. And the notion advanced in the opinion, that this is not about sodomy but about the right to be left alone, is so utterly vapid as to be useless as a principle of adjudication. Every mode of social control, and especially the criminal law, conflicts with the right to be left alone. Likewise the assertion in Planned Parenthood v. Casey that this is about the right of a person to define for himself his own concept of existence, of meaning, of the universe, and of the mystery of human life, cited to by the Court in Lawrence, is beyond parody in its pomposity and is jurisprudentially worthless. After all, no one quarrels with your right to define concepts for yourself. The question is whether that right gives you the right to act on that definition contrary to society’s interest in preventing you from so acting. If anything, the opinion in Lawrence proves the difficulty courts have in coming up with, as they must, a principled distinction among types of harm that the legislature categorically may or may not consider.

The attempt to limit the harm-morality distinction to criminal cases.
Professor Strader’s attempt to limit his definitional distinction between tangible harm and morality to criminal law presents two problems. First, the line between government interest balancing through criminal law and other means is not always clear. Civil punitive damages versus amercements, civil versus criminal contempts, and regulatory crimes punishable by fines versus administrative civil enforcement actions are not entirely clear distinctions as far as their ends and results. The difficulty of distinguishing such concepts underlies the Court’s decision in MLB v. SJB, in which the Court recognized a due process right to state-paid transcripts for indigents on appeal in civil parental rights termination cases just as in criminal appeals. The Court eschewed formal criminal-civil distinctions in favor of the type of harm suffered by the same class affected. As well, and as Justice Scalia predicts in his Lawrence dissent, one will hardly be surprised if at least some of the Justices who joined the Lawrence majority will disregard the criminal-civil distinction, among others, when there is a challenge to laws that restrict marriage to opposite-sex couples.

Second, as I noted originally, the criminal law may have several purposes. But, ultimately, and particularly today, the criminal law to a greater degree than the civil, reflects moral judgments. Even to the extent criminal law seeks to foster societal security, it does so by relying on moral calculations. Thus, murder is punished for the essential wrongfulness of the act, not out of utilitarian considerations of the insecurity among others that the murder causes, or even about private retribution not itself related to notions of morality (such as considerations about the support of the victims’ surviving family). After all, the last of these can be handled by civil wrongful death actions. Moreover, excuses to charges of murder focus on eliminating the wrongful nature of the act (self-defense, insanity), not on determining whether the killing actually increases community security.

The sources and interrelationship of customary majoritarian morality and systems of morals and ethics.
Professor Strader suggests that only a theocracy can define morality. I beg to differ. Morality is just customary common behavior of the relevant group, the tribe, community, state, or all of humanity. In that manner, it reflects the sociality of humans and the importance of such common behavior to further that sociality. It is distinct from “morals” (ethics) in that the latter have normative content based on some set of transcendent principles. However, as a number of legal philosophers have proposed, morality often is the positive manifestation of a universe of moral principles. A cynic might even argue that the real relationship between morals and morality is the inverse, and that the former is merely a convenient rationalization of whatever morality the culture actually practices. But one hopes that serious attempts to determine a system of universal moral norms that promotes human thriving move beyond such result orientation.

A system of morals or ethics indeed can be based on an appeal to authority of different types, including religious. But it can also be induced metaphysically from a contemplation of human nature and behavior or deduced (if Kant is to be believed) from some foundational principle operating through some highly individualistic system of subjective choice. Morality (customary behavior) can, of course, be probative (though probably not, by itself, complete proof) of moral behavior, particularly the more consistent the customary behavior is across cultures and time. There is a presumption that long and broadly adhered-to behavior conduces to human thriving. To the extent we believe that human existence is a good thing, so is human thriving and everything that contributes to it.

Ultimately, of course, the problem for the community of making practical law depends on a number of pragmatic factors that are not readily organized by appeal to broad “principles.” The devil, as always, is in the details, with exceptions to rules and exceptions to exceptions. Courts, acting through litigation, are generally unsuited to revalue and rebalance with greater expertise these kinds of policy decisions in the absence of fairly clear appeals to authority in the Constitution itself. Courts are not chosen for their special accomplishments in making policy, nor for their wisdom in moral philosophy that exceeds that of the population and its legislative representatives.

The legislature could pass a law against sodomy as a violation of a profound sense of morality of the community, as that morality reflects basic standards of what people believe constitutes “appropriate” behavior. Such legislation is valid in the absence of a clear constitutional norm that, as it is of constitutional dimension, is held to reflect some broadly agreed standard. Under our system, such a constitutional norm reflects a superior instantiation of popular will than the balance struck by the legislature. A court’s fantasy about the existence of such a constitutional norm is of little evidence of such a broadly shared understanding, as the abortion controversy over the past generation has made amply clear. And, unlike those who would decide all of these issues within the confines of constitutional straightjackets, leaving these decisions in the hands of the legislature provides more reliable indication of movement in popular understanding of such “appropriate behavior.” If law is an unwieldy method of balancing competing individual and social interests, constitutional law is much more so. Legislatures often, and wisely, refrain for a number of reasons from enacting laws that, under some principle carried to a logical absurdity, might support their power to do so. Just because you can do it does not necessarily mean you should. But it does mean you can.

The quest for an understanding of the Good Life has occupied philosophers for a long time. As Aristotle might say, it is a question of what it means to be fully human, and what conduces to human happiness. Initially, one needs to ask why happiness even is an essential human attribute, and, then, what we mean by happiness. As to the former, experience tells us that we are attracted to happiness as to goodness and beauty, and repelled by the opposite.  More difficult questions are raised by the latter. Is it merely a coldly utilitarian definition? Happiness is that which creates greater pleasure than pain? (Of course, the definition of those terms also presents problems, as we engage in a spiral of definitional reductionism.)

I prefer some more substantive definition of happiness, which eventually comes down to a dichotomy. Is happiness simply that which we choose to make us happy in a frankly solipsistic focus? Or is it something created by reference to an outside standard, such as the achievement of some goal of human excellence, including the practice of what we call virtue? The former is based on choice and, all too often, is so expansive that it embraces everything from intellectual inquiry to a bout of no-strings-attached sexual satisfaction. Given the limitations of most people’s psychology and the attractions of the sensory superficiality of the physical “quick fix” that appeals to the always disruptive “appetitive” part of the soul in Plato’s conception, there is a lot more of the no-strings-attached sexual satisfaction than the intellectual inquiry. That is happiness based on self-definition, an easy standard to meet. “If it feels good, do it” becomes a self-satisfying (in a manner of speaking) notion of happiness. To be somewhat stark, one can be the equivalent of a “brain in a vat” saturated with pleasurable stimuli that give one the sensation of happiness through a stunted and, in a broader sense ultimately false, image of happiness. It is also fleeting and gives only an ephemeral glimpse of happiness.

More difficult to attain is the classic concept of a eudaimonic happiness that requires much more reflection on self and human potential for excellence than the quest for the superficial sensory stimuli of wine, women, and song. Such sensory stimuli, to be sure, are valuable as a part of a fully lived life. After all, there seems something odd and limited about the disciplined abstemious aesthete who lives solely in a world of metaphysical contemplation. That is a frankly odd and frightening characteristic of the Platonic guardian and similar visions of supremely rational elite rulers. The lack of emotion and down-to-earth humanity and the seeming immunity to carnal pleasures makes such sorts, well, weird. In that vein, Christianity is a better and more balanced guide for human fulfillment that Platonism with its view of the body as a prison for the soul. Christianity fully embraces and, within the proper relationship celebrates, the carnal along with the spiritual and intellectual dimensions of being human.

But carnal pleasure is just one dimension. As to the spiritual and intellectual fulfillment necessary for the well-lived life, this is a long-term project of trained habit on top of physical potential and innate inclination. Perhaps we all share this inclination, though to what extent may be open to considerable debate. But we do not have it exactly alike in the same particulars, which allows us then a measure of control over how we may best achieve that life of thriving. Some may be excellent mechanics, some artists, some physicists. We must discover what best suits us as individuals to achieve that excellence that will help us live lives worth living. Nor are opportunities alike to live such eudaimonic lives. The day laborer seeking to feed a family may have less such opportunity of reflection and habituation than a person of independent financial means.

Still, all in fact live more “fully human” lives if they aspire to, and attain, a life measured by all its dimensions. Such a life of profound happiness is not as immediately recognizable as “happy” as the superficial version found in a sexual conquest or the alcohol-fueled conviviality of a party. It has been said that such recognition of happiness and flourishing cannot be measured until near death. I prefer to be a bit more optimistic and suggest that such a life cannot come into view until one has some perspective shaped by the longitude of time and the latitude of experience. For some that may never come, but it is a safe bet that it cannot come before age 50. Plato had it right in pegging that as the age at which someone had enough experience and training to be entrusted with the power to rule. Perhaps that wisdom should have been heeded last November. Certainly our perverse cultural habit of having the young set the tone for how to live life will inevitably produce more superficial than real happiness.

By the way, that is not to discount the value that the young can contribute to overall human happiness. Their often greater creativity, less bounded by acquired habit, can test the particular manifestations of accepted notions of fulfillment. They provide the potential for further growth in our overall understanding of human flourishing. Challenges to accepted standards requires a defense of those standards that, overall, benefits us all through increased understanding. But the young cannot be the arbiters of such standards. And the  individual, operating within what constitutes the broadly accepted notions of human flourishing, cannot know whether he or she has been successful at the ripe age of twenty.

Contemplating one’s life and choosing the means to achieve ultimate happiness is true freedom within the order provided by one’s essence as human. An excessive devotion to a singular aspect of human existence, especially one that does not reflect an essential human difference from other life forms, is not the balance and excellence that mark the flourishing and fulfilled life of human happiness.

I was contemplating these matters after I read this article, courtesy of Mark Steyn. In his usual humorous and linguistically-creative manner, Steyn contrasts the way in which freedom to define oneself in sexual terms has grown, while freedom in everything else is shriveling. His points of departure are three news reports. It appears that Canadian in vitro fertilization clinics must import American semen because of a shortage of domestic vintages due to a Canadian law that prohibits payment for semen. In contrast, the U.S. offers cash-for-spunkers (my term, don’t blame Steyn). Second, there is the media concern about the insensitivity of gender profiling by Homeland Security types regarding “transpeople,” such as pre-operative transsexuals. Apparently, the presence of a certain appendage on someone who presents “herself” as a woman causes the screeners to characterize her/him as a man, in contrast to the life “she” has been living. Well, better that, one supposes, than as a female carrying a concealed weapon. Nevertheless, this is trumpeted as the latest example of bigotry. Third, there is the “Gay Pride” parade that has been redesignated the “LGBTTIQQ2S” parade. That’s not a group, but a Vehicle Identification Number. (I am waiting for various law-affiliated organizations to follow the lead of the avant-garde and redesignate themselves similarly.)

Surveying this ideological landscape of frenetic sexuality, Steyn observes: “In terms of sexual identity, we’re freer than almost any society in human history, at least in terms of official validation of our choice to ‘redefine’ ourselves in defiance of biological and physiological reality.” This is the uni-dimensional and superficial definition of humanity that results from an excessive cultural focus on sexuality and other carnal sources of transient pleasure, the “brain-in-the-vat” approach to happiness. Plato would have predicted this. In a democracy, Plato wrote, the system is drunk with freedom. Everyone defines his or her existence by dabbling in this or that matter. There is a formlessness to the system and the people whose “democratic minds” favor it, and there are no agreed-to standards of excellence and achievement. The practice of virtue and, thereby, the pursuit of excellence and ultimate happiness, sink under the vicissitudes of a life of whimsy.

When the focus of individuality is as obsessively on one’s sexuality as in our culture, other choices necessary to a broad freedom to achieve the well-lived life atrophy. Government certainly is happy to step in, and limits to such freedoms emerge as the state seeks to impose the robotic conformity on its subjects that is characteristic of tyranny, the form of government that ultimately, in Plato’s evolutionary hierarchy, succeeds the collapsed democracy. As Steyn describes it: “At some point we will come to see that the developed world’s massive expansion of personal sexual liberty has provided a useful cover for the shrivelling of almost every other kind. Free speech, property rights, economic liberty and the right to self-defence are under continuous assault by Big Government. But who cares when Big Government lets you shag anything that moves and every city in North America hosts a grand parade to celebrate your right to do so? It’s an oddly reductive notion of individual liberty. The noisier grow the novelties of our ever more banal individualism, the more the overall societal aesthetic seems drearily homogenized—like closing time in a karaoke bar with the last sad drunks bellowing off the prompter ‘I did it My Way!’”

My colleague Ken Williams is an expert on the death penalty and has litigated on behalf of a number of death row inmates. He sent me this article by Richard Viguerie on the conservative case against the death penalty. Viguerie is, broadly speaking, a conservative, and he joins a long list of conservative commentators who have come out against the death penalty. Prominent among them, and far more persuasive than Viguerie, was the intellectual godfather of the modern conservative movement, William F. Buckley.

Viguerie summarizes his opposition to capital punishment as grounded in his Catholic faith and in his belief that government often uses law to wrong ends: “I’m a Catholic. Because of my Christian faith, and because I am a follower of Jesus Christ, I oppose the death penalty. I’m a conservative as well, and because my political philosophy recognizes that government is too often used by humans for the wrong ends, I find it quite logicalto oppose capital punishment.”

Beyond obliquely equating opposition to the death penalty as a necessary correlative to opposition to abortion, he dwells little on the former, though I shall address that. He focuses, rather, on the fact that capital punishment exists through a system that produces injustices because it is run by individuals operating from corrupt motivations of personal advancement instead of the common weal: “It is, after all, a system set up under laws established by politicians (too many of whom lack principles); enforced by prosecutors (many of whom want to become politicians—perhaps a character flaw?—and who prefer wins over justice); and adjudicated by judges (too many of whom administer personal preference rather than the law).” He also worries about wrongful convictions of the innocent, including those cases where exculpatory evidence was purposely withheld by prosecutors.

Immediately, one is struck by Viguerie’s sleight of hand of dealing from the bottom of the deck. First, prosecutorial misconduct or improper motivations by government officials at most go to the means of administration of the death penalty or the immoral nature of the officials. They say absolutely nothing about the death penalty itself as being directed to a wrong end. Second, he makes the accusation, but cites no instance of actual execution of innocents, much less some ongoing epidemic of such executions.

Third, he neglects the role of jurors in his tale of conniving actors. Does he not dare to lay blame at such a broad swath of more politically inconvenient targets? And in his proposition that the death penalty is evil because of the role of judges who administer according to personal preferences instead of the rule of law, Viguerie allows himself a preposterous flight of intellectual extravagance. The judges who rule according to personal preference instead of the law are those who set themselves against the existing law of capital punishment through their uncompromising abolitionism. Justices Marshall, Brennan, Blackmun, Stevens, et al., come to mind. These are the people who cannot be bothered with the fact that the Constitution in three clauses assumes the constitutionality of the death penalty.

Fourth, he proves too much. His is an argument not just against the death penalty but against all punishment (indeed, against all law), and certainly against the alternative often touted by death penalty opponents, the truly horrendous and psychologically crushing life imprisonment without parole. If the system operating through the combination of malevolent legislators, prosecutors, and judges that Viguerie posits makes the death penalty unjust, putting someone away for life (or indeed for an afternoon) through such a system is unjust, as well. Is Viguerie willing to accept just a little injustice? If so, how much? Are we arguing over price instead of principle (despite his indictment of politicians for lacking principle)? Does he propose that the long trial and appeals process should be shortened when we’re “just” dealing with life imprisonment or, say, twenty years? How does one give back to a wrongly accused father his shattered life? I’m not sure I’d rather live out the rest of my days without hope and in shackles in a maximum security prison than be put to death relatively painlessly. If Viguerie argues that the taking of a life by the state is qualitatively different than other punishment, then he must also agree that taking of the life of the victim is qualitatively different than other crime. And if he argues that killing the perpetrator will not bring the victim back to life, well, then, leaving aside the greater value of the killer’s life than that of the killed expressed in that argument, neither will punishing the killer at all restore the victim.

From a different perspective, if he is going to argue the execution of innocents, is he going to weigh against that the occurrance of a prison escapee murdering an innocent, or a murderer who is paroled or serves out a lesser sentence under a non-capital punishment scheme doing so? Or are those victims just the collateral damage of his “just” system?

The death penalty should be looked at from a more principled perspective. Immanuel Kant offers some guidance in support of the ethical basis of the death penalty, established by the very voluntary act of individual freedom by the murderer. By killing, he has ethically validated his execution. Indeed, a failure to recognize his action as ethically valid, and refusing to execute him, would violate his human freedom of self-determination. Kant’s proposition for the deat penalty would be a conservative (or classically liberal) position grounded in freedom and human dignity.

Or, one can validate the death penalty by resort to the short hand “a life for a life,” which actually embraces a more sophisticated justification based on the transgressor’s choice to deprive his victim of that which is his most fundamental and natural right, his right to life. Such a violation by the offender of that which all living things hold most dear is so profoundly destructive of human individuality (the victim’s) and human community (the uncertainty and suspicion it brings to social trust and interaction) that balance can only be reestablished by exacting ultimate retribution. That, too, is a conservative position grounded on the natural right to life and the exercise of one’s free will within the contours of a greater social order.

Viguerie’s reference to abortion and Catholicism are misguided. Abortion is the killing of an innocent. As I’ve said in other contexts, I’ll reconsider the immorality of abortion when we’re dealing with an unborn who, intentionally and with malice aforethought, kills its mother. Under Church doctrine, the abortion as a means to achieve the end of killing innocent life is intrinsically evil. I might contemplate agreement with Viguerie that the act of a prosecutor withholding exculpatory information that might save the innocent from execution is on a moral plain of evil with a woman choosing abortion. But that is not the same as equating the death penalty in general with abortion. And it is not, I suspect, the equivalence Viguerie intends to draw.

The death penalty (not its mistaken or corrupt application) is the killing of a guilty person, of someone who himself has transgressed against an innocent in a most consequential manner. The penalty is the means to some proper and ethical end. Under Church doctrine (and long acceptance of the practice), capital punishment is not intrinsically evil. The Church does hold that it should not be applied if other means can achieve the societal interest as well. But, again, how can that be? Do we want the state simply to allow the victim’s family to choose, say, a blood price or private killing through a blood feud? Exile of the perpetrator (even to Palau) is unrealistic. Imprisonment is no guarantee of achieving the minimum social interest in rendering the perpetrator harmless. Prison escapes are not infrequent; neither are mistaken releases.

All I see in Viguerie’s article is a collection of unfounded assertions, sententious assumptions, and weak utilitarian worries about cost and efficiency. Viguerie may have a conservative case against the death penalty. But he hasn’t made it.

I recently discussed with my First Amendment class the ebb and flow of speech restrictions in Western civilization. On the topic of scientific speech I noted that science has had a generally free reign for three or four centuries, as science became separated from religion and philosophy, and fact-value distinctions became prominent in epistemological ruminations. The old Aristotelianism that had sought to address ultimate questions of “why” was pushed aside in favor of a leaner focus on questions of “how” and “what.” In contrast to the broad speculations of medieval scholasticism and early modern Aristotelian science, a more pragmatic and reductionist method of scientific inquiry was put forward in Sir Francis Bacon’s influential Novum Organum.

Taking the “why” out of this more streamlined scientific inquiry helped speed along scientific advances and swept aside some established theoretical clutter. As well, it provided breathing space for explorations without having to concern oneself about running afoul of religious and philosophical orthodoxy. Indeed, the advances of science furthered liberalization of religious doctrine (at least within Catholicism) by fostering a movement to incorporate the rapid pace of scientific discoveries by secular scientists into evolving understanding of religious meaning. This provided a subtle alteration of influence, as science concretely influenced religious thinking more than the other way around. Of course, science (as, traditionally, a branch of philosophy), as well as metaphysical rationalism, had long been connected to Catholic doctrine, but more as a handmaiden to theology.

This formal separation has worked particularly well in the development of physical science, such as chemistry, physics (optics, mechanics, nuclear physics), astronomy, and geology. It has been relatively easy for scientists to avoid getting into ultimate questions of “why” and limit themselves to discovering physical processes. That said, the temptation for astronomers and some other physicists to leave the domain of strictly factual inquiry clearly has been there, and preconceived notions of ultimate questions about God sometimes have influenced their theories. I am thinking in particular about the mathematics of the Catholic priest, Father Georges Lemaitre that demonstrated the Big Bang theory of a universe with a defined beginning (and an implied uncaused cause), contrasted with the atheist Fred Hoyle’s Steady State theory.

On the other hand, a self-imposed scientific modesty to confine itself to the “how” and “what” but not the “why” is more difficult to maintain when one gets into the life sciences. The existence of life, especially of self-conscious beings who can comprehend these very issues, fairly begs inquiry into ultimate questions. Not surprisingly, Aristotle (whose natural philosophy was steeped in explorations of ultimate purpose) was a marine biologist and the son of a physician. Even temporary preoccupation in the field of life sciences with biochemical processes in the development and functioning of life only pushes back the question of “why” does life (and particular types of life) exist to another level of scientific investigation.

The ongoing struggle over the implications of purely materialist Darwinianism contrasted with a version connected with intelligent design is evidence of how ultimate questions suffuse the entire project of the life sciences. No wonder that Darwinian materialists like Richard Dawkins have taken a leading role in trumpeting the asserted truth of atheism and denigrating religion. Fortunately, their training as scientists has not also trained them in religious and metaphysical speculations, and their efforts have been brushed aside rather easily by theologians. But what is significant is that the debate over intelligent design has taken on the tone of a dogmatic struggle over heresy. As with the current reaction to global warming skeptics, the ferocity of the debate reminds one of a contest over metaphysical dogma rather than a dispute over scientific theory. Look for these controversies to heat up, and the inquiries to become more overtly focused on issues of “why” as the 21st century looks to be for life science what the 19th and 20th were for physics and chemistry.

Something sure to add fuel to the fire is this article about the gaps in DNA as explanatory causes of the whole of life. DNA defines the cell’s building blocks, but cannot account more broadly for distinguishing characteristics of various kinds of creatures. As the author points out,

“CONSIDER THE HOX ‘master’ genes that supposedly determine the spatial configuration of the front and back ends of creatures as diverse as frogs, mice and humans. As British physician James Le Fanu writes in a fascinating new book, Why Us? How Science Rediscovered the Mystery of Ourselves(Pantheon), Swiss biologist Walter Gehring showed that ‘the same “master” genes mastermind the three-dimensional structures of all living things… The same master genes that cause a fly to have the form of a fly cause a mouse to have the form of a mouse.’ The physically encoded information to form that mouse, as opposed to that fly, isn’t there. Instead, ‘It is as if the “idea” of the fly (or any other organism) must somehow permeate the genome that gives rise to it.’”

Perhaps those genes interact with other genes or overlapping, and species-distinct, segments of the DNA double helix in yet unknown ways. But the notion that there is something outside the purely material expression of DNA collected into genes and combined into chromosomes that directs the development of a life is Aristotelian science reborn.

Aristotle posited four causes, the material, efficient, formal, and final (or ultimate). Scientific investigation of DNA and proteins looks at material cause. The efficient cause, that is, that which makes the thing work, can be explored at several levels. One way would be to look at the role of DNA and RNA in the synthesis of proteins through the genetic code. Alternatively, at a higher level of examination, the efficient cause of life in humans may be seen as the sexual coupling of man and woman, or perhaps the interaction between environment (including intake of air, water, and food) and the internal material components of the creature. This, too, may be the subject of modern scientific inquiry.

But Aristotle also posited a “formal cause,” which makes a mouse a mouse, an oak an oak, and a human a human. In an artificial creation, the formal cause is the “blueprint” in the mind of the craftsman. For example, a chair takes its physical shape from the idea in the mind of its creator that is transformed through the material cause of the wood and the efficient cause of the craftsman’s labor with saw and sander into the tangible thing. The Greek word “idea” is to see the (real) appearance of a thing with the mind’s eye, which is also the notion of Form in Plato.

Aristotle brought the notion of Form down from Plato’s super-terrestrial realm, and, in the case of non-artificial things, into the thing itself. In non-artificial entities, the Form conforms to the nature of the thing. A thing’s nature (its essence, which it shares with all others of its kind) is Aristotle’s final cause, the ultimate purpose for which something exists and to the fulfillment of which its development is directed. The nature of a creature defines its Form. Hence, humans have the brain that distinguishes them from dogs (the essence of being human means to have the reason and the capacity for abstraction and speech that distinguished us), and birds have the wings that distinguish them from fish. A creature’s development is self-directed (Aristotle’s notion of “soul”) to achieve its Form as it grows through stages of growth and change and moves from potentiality to completion.

Alhough its ultimate Form is internal to the creature and is controlled by its nature, i.e., what defines it as a kind (species), its Form is distinct from purely efficient and material causes that operate within it. That mirrors just what this article avers about how DNA/RNA transcriptions and protein synthesis cannot account for form that seems instead to respond to some “idea” or “nature” of mouse or human, and that is inwardly directed but is distinct from the material and efficient causes modern science can witness. It is as if the genetic code helps define us as specific and unique individuals within our kind, but that what makes us as a kind different from other kinds is controlled by another cause.

For many years, China has had a one-child-per-family policy that subjects violators to legal recriminations and disabilities, if not worse. Reports of forced abortions have been ubiquitous in the past. As a result of this policy, there exists a huge disparity in numbers between males and females in the younger age cohorts. The Chinese policy may have succeeded in stabilizing the population numbers. The resultig disparity in numbers between the sexes may further benefit women in their social position, as supply scarcity in relation to demand will cause a readjustment of value of the product (women). But there are likely to be huge and difficult social problems as well. A large excess of men in a society in relation to the number of women is never good news. One social harm associated with polygamy as it exists in many Islamic societies is that it produces an excess of unattached men, especially young men, who provide a force of instability that has to be blunted. The Chinese system has produced a disparity much more massive than what is produced in Islamic systems of limited polygamy available only to the wealthy. Such disparities are likely to result in higher rates of crime, the flourishing of prostitution to absorb the pent-up sexual energy otherwise contained through pair-bonding, traficking of women from other countries, and international instability through opportunistic war to reduce the pool of restive men.

Now comes Sweden. The country’s health ministry has officially determined that a woman can choose to have an abortion based solely on the sex of the child. In this case, the woman twice aborted her daughters because she already had two and wanted a son. Now for a number of reasons, Sweden is not China, and the problem of imbalance between the sexes is not likely to be a severe and as socially dangerous. But there is also the moral angle. The woman’s daughters were aborted only because of their sex. Whether or not one agrees that abortion for anything short of saving the mother’s life (a rare case, indeed) should be permitted, aborting as a means of custom-tailoring your child’s sex is a far remove from the more commonly-made arguments in favor of abortion.

But the Swedish authorities are right. They “reluctantly concluded” that this was just another aspect of freedom of choice. And so it is. When a child is stripped of its own humanity and becomes nothing more than a “choice” of the biological unit whose womb the child is occupying, the Swedish decision is compelled, social consequences be damned. This is similar to the movement to strip the existential reason for the state’s control over the institution of marriage, that is, the raising of children. If socially-recognized marriage is nothing more than a personal choice for individual fulfillment, then the relations, characteristics, and numbers of the married individuals are irrelevant. It’s all just choice.

There already exists a similar basis for sex-selection abortion in American jurisprudence. The Supreme Court requires that states permit unrestricted abortion until the point of viability, which, despite its incoherence as a principle and its inherent fluidity in application, is said to exist, typically, around the 23rd or 24th week of pregnancy. Beyond that, states must permit abortion if the pregnancy endangers the woman’s life or health. There is no requirement that the danger be serious or that it be to the woman’s physical health. Indeed, her psychological well-being is a specific aspect of health. With the imprecision of psychological evaluation, this is an effective instrument for abortion on demand during the entire pregnancy. If a woman in her seventh month of pregnancy suddenly insists that having another girl will cause her emotional turmoil and affect her psychological well-being, her demand for an abortion cannot be evaluated over a series of weeks. Effectively, then, there is abortion for sex-selection. As the Swedish ministry concluded, choice has its own logical and moral (or amoral) imperatives.

This column in The American Thinker reminds me of remarks that I make to my students when we discuss the equal protection clause of the Fourteenth Amendment. I address the concept of discrimination that lies at the heart of the equal protection clause. Though the clause only applies to discrimination founded in law, I use the opportunity to voice some thoughts on the act of discrimination in general.

The reason is that in our non-judgmental, hesitant, and hyper-egalitarian society, to discriminate has taken on an unsavory connotation. In the popular understanding, to discriminate simply means to be prejudiced. And that, of course, is a terrible thing to those who pride themselves on their reflexive open-mindedness. For many Americans, apparently, everyone must live for the moment, and we must be open-minded to the point that, as the joke goes, our brains fall out.

But, it gets worse. To discriminate is to be prejudiced. And to be prejudiced today means to be prejudiced against certain untouchables. Not untouchables in the sense of the disparaged caste among Hindus. But untouchables in the sense that the ordinary rules of social interaction do not apply the same when they touch those groups. Thus, while enlightened society permits one to say, as then-candidate Obama did, unflattering things in common discourse about certain groups, such as, say, religious “fundamentalists” or gun-owners, similar remarks made about the untouchables would be denounced as “prejudice.”

The point is not to attack or defend such aversion to criticism of untouchables. The point here is to attack the imprecision with which concepts such as discrimination and prejudice are flung about. The words have come to be identified with only particular instantiations of their general meaning, and only those instantiations that are widely considered to be evidence of a serious character defect, at that.

Let me make a quick defense of discrimination and prejudice. One is practical, the other moral. The practical is simple. Without discrimination and prejudice, it is likely that each of us as individuals would have much shorter life spans, and as a species we likely would have died out long since. Prejudice is collective experience gained individually and culturally. That experience causes us to prejudge situations and occurrences without the high cost of re-learning every possible response. One quick example: I doubt that any of us are such determined adherents to non-prejudice that we would react to fire as fully neutral actors regarding its potential to burn us. Having had their hands burned once on a hot stove, few would willingly place their hands on a hot stove again as if “unseared” by prior individual experience. Indeed, if people whom we trust tell us of their experience, we likely will decline to place our hands on the hot stove even without prior individual experience.

This is collective, social, or cultural experience at work. Thus we discriminate against the hot stove when deciding where to place our hands. Prejudice might be considered a particularly systematic, reflexive, and unquestioned expression of discrimination. The hot stove example versus the more measured decision to read a particular book rather than to watch a certain movie.

On a moral level, too, we dicriminate constantly. On one level, to discriminate is to choose. I find it particularly puzzling that those liberals who so loudly defend a woman’s “right to choose” find discrimination as a concept so abhorrent. Moving for a moment beyond the killing of an unborn child, the right to discriminate is your fundamental right to choose.

There is more. In the classic view, rights come from duties derived from natural justice or natural law. The extent and quality of those duties respond to the capacity of humans as capable of rational and abstract thinking. Even animals discriminate within their more limited capacities. Present a lion with the choice between a zebra and an aubergine in tomato coulis, and, unless the lion is in a Disney cartoon, he will opt for the zebra.

Humans, with their more advanced minds, are expected to make more sophisticated choices. Indeed, only with humans can the idea of “moral choice,” good and evil, take form. If the lion kills a baby (lion or human), one can hardly say he is an “evil” lion. He’s just a lion, doing what lions do. But a human who kills a baby can, will, and should be characterized as “evil.” In short, not only do we have a right to discriminate, we have in many ways a duty to discriminate. Through its laws, customs, religious precepts, ethical system, professional codes of conduct, manners, and other norms, society expects us to discriminate in our choices of action. Indeed, as to certain choices, there is such a strong expectation that the choice be made in a specific direction that we reflexively regard with revulsion anyone who makes a contrary choice. We are truly prejudiced against such a choice. The afore-mentioned child killer is one such example.

I seriously doubt that even most liberals would deny the appropriateness of discrimination (and, indeed, prejudice) in those settings. It is true, though, that they would probably be less robust in their defense of discrimination and prejudice, given their penchant for moral relativism and multi-culti passivity. What the debate really centers on is proper discrimination. Or, as I explain to my students, smart versus stupid, rational versus irrational, moral versus immoral discrimination.

Conservatives are likely to condemn more individual acts of discrimination as stupid. Accepting the liberal charge that conservatives are more judgmental, they are more likely than liberals to condemn what to them is a bad choice. Liberals are more likely to reject such judgments, for various reasons, such as their belief that choices are not truly an individual’s but are due significantly to factors beyond the individual’s control. Note, though, that I did not say that conservatives would use the force of law against such bad choices. That’s what liberals do. Liberals may be less quick to judge choices made by individuals, but once liberals are moved to find particular discriminations to be stupid, they are quicker to enact their prejudices into law.

The point to press, then, is that discrimination and prejudice are essential practical and moral instruments that help us order our lives efficiently and ethically. To be a discriminating person used to be an accolade signifying someone of refined taste and superior discernment. Rather than bastardizing the meaning of those terms, we need to distinguish between the great majority of appropriate discriminations that are concrete applications of the desirable general idea, and the comparatively few types of undesirable instances by singling out for specific opprobrium only the latter. One might say that we must learn more clearly to discriminate about discrimination.

Excellent responses by Professor Robert George, a Princeton University philosophy professor and ethicist (the antidote to Peter Singer), to questions posed to him by Pepperdine Law Professor Doug Kmiec. The exchange is tilted toward Catholic religious and philosophic traditions, but the larger issues are non-denominational and, indeed, not wholly religious. Doug Kmiec supported Obama as the true pro-life candidate in the election and continues to ascribe to the President such views, something that the hierarchy at Notre Dame University apparently shares. It is a puzzling decision that Kmiec has tied himself into a figurative pretzel trying to defend from philosophic, religious, and political standpoints. I have read his arguments extensively, and I have heard him defend his views on radio programs twice, so I am familiar with his arguments. Because the facts so clearly contradict his claims about Obama, he has had such a hard time trying to square the circle of his position.

The Western interaction among science, philosophy, and religion is an ancient and fascinating pas-de-trois. The traditional understanding is one of complementarity. All seek to answer questions about our connections as humans to the many-faceted cosmos around us.

But modernity often sees that relationship differently. Sir Francis Bacon’s Novum Organum cemented a trend with roots in medieval science, the separation of scientific inquiry from philosophic speculation and religious contemplation. The advent of modern science thereafter is a confirmation of that trend, from Newton’s mechanics to Einstein’s relativity to the quantum physics of Bohr and Heisenberg in the physical sciences, and from Darwin to Watson and Krick to Gould in the life sciences. The fact-value distinction continues to be at the core of that separation.

That separation would preclude grand scientific theories that speculate about ultimate questions of reality. The problem of non-falsifiability, and even the impossibility of empirical support for “scientific” hypotheses about questions of “Why,” would seem to doom such a project. At the same time, such ultimate questions are deliberately removed from consideration through scientific methodology.

And yet….Scientific inquiry and normative speculations (both philosophic and religious) have an undeniable affinity for each other. Perhaps the classic approach has some merit in expanding our understanding, at least within careful constraints. The search for grand theories continues to tempt, and grand theories do not lend themselves well to bright-line distinctions between fact and value. Nor are such lines as easily drawn in the life sciences as in others.

In many ways, the 19th and 20th centuries were the centuries of the physical sciences, from theoretical and practical physics to general chemistry. The 21st century looks like it is shaping up as the century of life sciences, that is, of biology and biochemistry. And it is in the life sciences where the “Why” question that, by rejecting classic Aristotelianism, early modern science proposed to abandon, takes on added urgency. It is there, in particular, that the fundamental fault lines between purposive and materialist world views are exposed.

We tip-toe around the matter, and like to dress our debates in the language and analytical garb of science. That’s fine, as long as we understand the implications of what we’re saying and recognize how our very framing of the inquiry draws us into the “facts.” The observer becomes part of what is observed. There is a danger that what we find is what we set out to prove.

It is important to keep in mind, then, that there is more to both classic Darwinian evolution and “Intelligent Design” than just a detached scientific paradigm. True, as many Christians are fond of pointing out, classic Darwinian evolution is technically not inconsistent with a Creator, indeed even an involved Creator who has designed a purpose for us. Even more consistent with such a Creator, potentially, is Gould’s punctuated equilibrium modification that attempts to deal with various pesky problems in classic evolutionary theory. On the other hand, Intelligent Design theory technically does not compel recognition of God. However, it really cannot be denied that classic Darwinian evolution has about it a strong scent of amoral materialism. Punctuated equilibrium does as well, as it tries to shore up the weaknesses of classic theories of species evolution through merely random mutation.

Intelligent design, by the same measure, clearly implies a Divine Creator. Sure, it is possible that von Daniken and others may have been on to something when they claim that aliens caused human “evolution,” especially higher consciousness. (Intelligent design theorists would not commit themselves to that, and I am certainly not endorsing von Daniken). But even if some alien “designers” helped direct the evolution of certain biochemical processes or organs of “irreducible complexity,” in Behe’s view, or of human rationality and abstract consciousness, who designed those aliens? Answering “other aliens” merely becomes an exercise of pointless reductionism. The question inevitably and even more urgently gets posed there than in regard to Darwinian theories of evolution.

In the physics, particularly astronomy, the “big bang” theory has similar “creationist” underpinning, though, technically, it, too, does not require a Divine Creator. As was presented in a wonderful couple of lectures by my priest, Father Dave Heney, and an electrical engineering professor from USC (I know, I know, but he got his Ph.D. from UCLA), Dr. Chuck Weber, there is mathematical, physical, and photographic evidence of the correctness of the Big Bang theory. And the mathematical model, worked out first, came from a Belgian priest, Fr. Georges LeMaitre.

Because of the “creationist” undertones of the Big Bang theory, agnostics and atheists were particularly resistant to it. While opposition to the theory itself has withered in the face of overwhelming evidence, there has been a separate project to blunt the looming theological import. Hence, more and more exotic hypotheses, based on mathematical speculation, have been proposed. Of course, those speculations only address what might have happened, based on certain a priori assumptions, not what did happen. They are therefore, strictly speaking, not scientific hypotheses. There is no, and cannot be, rigorously scientific evidence for such speculations. Theoretical physicists are moving away from scientific inquiry into metaphysical speculations, away from their fields of expertise. Wondrous and imposing mathematical propositions notwithstanding, this isn’t science.

One of the current favorites is the “multiverse hypothesis,” a proposition that there are innumerable parallel universes (I shall not insert here the obvious cheap joke about my liberal friends), most of them either “failed” or supportive of other forms of existence. Leaving aside the issue of who created those universes, this is again an attempt to ascribe a purely material basis to the cosmos. It explains away the stunning unlikelihood that all the various conditions that allow the universe (and, even more remotely, life and human consciousness) to exist, would result by chance. Again, the existence of these multiverses is purely hypothetical, but the metaphysical and theological implications are clear. Since this theory is often connected to suppositions of infinite existence (though the particular universes may come and go) and self-generation, its implication is of an absence of a creator as the unformed first cause. In recognition of that implication, there are already serious attempts to blunt the obvious materialism and atheism of the hypothesis, just as was done in response to the challenge of Darwinian evolution.

Some thoughts on President Obama’s order that makes federal money available for embryonic stem cell research. The order does not provide for federal funds to produce embryos for destruction. However, the private market (which, contrary to popular opinion, was not affected by the earlier Bush ban on federal funding) can supply the embryos whose destruction federal funds can be used for. This will provide incentives to create embryos beyond the “side products” of fertility treatments. Moreover, the embryonic stem cell research fanatics not only want to turn Obama’s executive order into a statute so that a future President cannot reverse it, but they also plan to overturn the statute that currently prevents federal funds from being used to create embryos for destruction.

Let me start with the moral position. From my perspective, grounded in complementary alternatives of Aristotelian ethics and Christian theology, the embryos are human beings. Why they are, might be left to another day. Their “harvesting” for another’s benefit is of the same kind, even if we might perceive differences of degree, as killing an adult because we want access to his heart to save, say, someone we believe to be of greater utility to society. Perhaps a destitute loner who is sacrificed to save the life of a great scientist. Or, to use another example, the WW II-era Japanese medical experiments (including dissections of live individuals) that resulted in the deaths of American prisoners of war. After all, from the Japanese perspective, such experiments might result in medical benefits to other humans, “higher” humans, such as Japanese soldiers. And it won’t do to say that the embryos feel no pain. We would feel at most a slight lessening of the disgust at these experiments if we were told that the Japanese narcotized those prisoners of war before proceeding. So when Obama says, “As a person of faith, I believe we are called to care for each other and to work to ease human suffering,” is he willing to follow the Japanese precedent? He needs to take a course in ethics before he advances such statements as a defense of this policy.

For a withering critique of Obama’s “ethics,” see this post at The Corner: “What room is there for ethics in President Obama’s thinking? He says that he “understand[s]” the concerns of opponents of this research, but this is the sort of empty and condescending acknowledgement of an opponent’s views encouraged by the teachers of conflict resolution — a formulaic expression of the sort that careful listeners will frequently hear from our new president.”

The embryos’ very existence as the result of fertilization procedures raises other fundamental ethical questions that have not been adequately resolved. The octuplets recently born to the single mother in California are a potent symbol of the controversy.

But aren’t embryos simply the property of the “parents” who can dispose of their property as they see fit, including donating it to scientific research? For one thing, that assumes their status as property rather than human beings and gets us no further. But even if one were to attempt a property analogy, there has never been recognized a full and complete autonomy to use one’s property “free of politics or ideology.” Even over one’s own immediate body, we have declined to recognize broad autonomy to kill oneself or to sell oneself into slavery. One cannot even sell one’s organs. The concerns are manifold. As to killing oneself and selling oneself into slavery, such steps are so harmful to one’s ultimate existence that we refuse to tolerate them. As to selling one’s organs, there is a well-founded concern that such commodification of the body will inevitably lead to undesirable societal results, such as a cheapening of life. Further, it also is inconsistent with each human being’s ethical worth and existential autonomy, going beyond the mere autonomy of the will.

One of the arguments against embryonic stem cell research is that it will lead to other problems, such as embryonic cloning, especially for non-research purposes (i.e., reproduction) and for research on human beings during other stages of development. I am not usually a fan of such slippery slope arguments. But human experience cannot be discounted, either. And human experience has shown that a disregard for fundamental propositions of life inevitably leads to greater acceptance of death. Disregard for the “other” begins with the unborn. After all, if there is no clear and accepted line for what constitutes human life (and the only clear one is conception), everything becomes a utilitarian balancing of competing social interests.

The President attempted to head off that argument by claiming that the law would assure that there would be no cloning of embryos for reproduction. That is a truly preposterous statement. Why would it be ethically worse to create new embryos that will be raised by someone to enjoy life fully, than to create such embryos for purposes of research? That has it ethically exactly backwards.

From a scientific standpoint, there seems to be no reason to proceed down this road. There has been, according to the press, no medical advance attributable to embryonic stem cells. On the other hand, there have been medical advances through the use of adult stem cells and umbilical cord cells. In addition, in 2007, a tremendous scientific advance apparently was achieved with the discovery of a process to produce “induced pluripotent stem cells” from skin cells by injecting genes that force the cells to revert to their primitive “blank slate” form with all the same pluripotent capabilities of embryonic stem cells. So far, embryonic stem cells are a dead end compared to the alternatives, and an unnecessary scientific road in any case.

The economic verdict is in, as well. If there were any reasonable expectation of success, private companies, ever the greedy capitalists according to enlightened opinion, would jump at the chance to produce “cures.” Instead, private money has gone to adult stem cell research. Embryonic stem cell research has had to rely, you guessed it, on taxpayer funding through government agencies. Neither government nor taxpayers are particularly qualified to assess the merits of such research. The former have political programs at stake; the latter react to emotion more readily than to reason. The taxpayers of California, whose state is in near-bankruptcy, nevertheless obligated themselves to fund such research, and the feds are following suit.

There is no reason to have taxpayer funding for these endeavors. Stem cell research is not a project where the sheer need for capital overwhelms private industry resources. Unlike, say, the moon landing project, the amount of capital is comparatively small per laboratory. Moreover, the government’s space effort was directed at a specific goal. The quest was to develop the means to reach that goal. With embryonic stem cells, there is no clear goal. We don’t even know whether there is a goal, much less have we identified one. Given the limited resources, public support is unwarranted, and our private money would be (and is being)better spent developing scientific leads in cell research that have shown promise.

Finally, one really needs to address Obama’s fatuous statement that he is taking the ideology out of science. What nonsense! This is coming from an administration that has a party line, honed in a political campaign, that there is global warming, that it is man-made, and that it will be Armageddon. Try to get government funding (or even publication) if you dissent. The reaction is not one of scientific curiosity, but of smashing heresy from a belief system. A similar problem has existed with the government’s approach to AIDS research.

Whenever you have scientific inquiry, particularly with the kinds of questions raised by life science research, you have ideological issues. Formally, even saying that you won’t use ideology to guide you takes an ideological position. And when government gets involved directly sponsoring the research, bar the doors, because the very modus operandi of government is steeped in ideology. As another writer points out, what would be the reaction of the elites cheering our presidential booster of science if the government were to say to the military to develop weaponry without ethical considerations? Chemical and biological weapons, anyone? The afore-mentioned method of Japanese experimentation on humans? Is Obama really that clueless, or is he intentionally deceiving people? Science can answer certain questions, but is incapable of answering others. Ignoring (rigorous) science deprives us of valuable knowledge about the world; seeking answers from science that it is unsuited to provide deprives us of full understanding of the world.

In a discussion group at our church, some of the participants were bemoaning the loss of “community” among people. One woman contrasted the interpersonal distance of our way of life with the folksy ease of interacting with others she recalled from her small hometown in Montana. Another pointed out her experience with homeless individuals and asserted that those of Mexican ancestry help each other, whereas other homeless people do not. She attributed that difference to the Mexican culture of large supportive families. By way of contrast, someone declared that people coming across the border from Mexico almost immediately know how to obtain the generous welfare and other assistance that the taxpayers in the U.S. provide. These are aspects of a social net that is essentially lacking in Mexico, and the immigrants quickly adapt to the realities of the new culture even if they have family here.

To me, this exchange typifies something else, namely, the corrosive effect of government on community. Like a debilitating virus, government damages or destroys both the individual and the community. Some years back, Hillary Clinton intoned an African proverb, “It takes a village to raise a child.” I have my doubts about the priorities that underlie that statement. I believe that it fundamentally takes a mother and a father (notice the conjunction “and”) to raise a child. But from that core proposition, I am quite willing to accept the point that parents operate within a larger universe of, first, the family, and, second, the broader community. Given the social aspects of our nature, it is beyond doubt that children need socialization into conforming to the expectations of the community.

What I do not accept is the supposition that the “village” is the “government.” It is important to distinguish between the various bonds that compose “community” and those that connect us to “government.” The former are bonds shaped by economic needs and desires, by the human yearning for religion, by our need for love and intimacy, by more far-ranging personal interactions that make possible our daily lives, and by cultural bonds that connect us to those who went before us and to the broader community as a whole apart from its individual members. Those bonds have a fullness and complexity in their reach and a richness in social texture far beyond the more skeletal and primitive bonds that exist between the government and the governed in the typical system.

John Locke, who exerted such strong influence on the founders of the American republic, made quite a clear distinction between the bonds that existed in the pre-political society he posited, and those created in the formation of the political commonwealth. But even Aristotle, an example of a far more communitarian writer, understood the difference between the role of the political bodies in maintaining a broad framework that makes human fulfillment possible, and the non-political social bonds necessary actually to produce the maximally fulfilled life.

The bonds that tie us to the government are legal and political. The government exists to help us resolve, at a certain level of significance, the disputes that inevitably arise within any social context. “Law” has the potential for a particularly attractive role in resolving such disputes with a maximum of predictability and constancy. In that sense, politics, operating in particular instances through the law, provides an alternative to socially disruptive forms of private dispute resolution that present particularly acute dangers of rending the social fabric. Government as arbiter and traffic cop.

Government can also promote the efficient marshaling of resources for defense of the community against internal and external threats. In related fashion, government can efficiently promote social good in select circumstances where private resolution is untimely, incomplete, or prohibitively expensive; where the social good is broadly beneficial; and where the infringement of individual rights and the disruption of social bonds are mild. A public condemnation of land for a highway, with compensation to the owners, comes to mind. Other instances might be a mandatory vaccination program and abatement of a public nuisance.

Finally, and speaking broadly, political action in a democratic system promotes a sense of participation that furthers the overall cultural bonds and provides an air of legitimacy to the actions of government. It allows us to air our general differences over the direction of the community in a more deliberative manner than as rival factions resorting to violence. Just as long as the (temporary) winners and losers accept a social bargain whereby the losers accept that fact gracefully and do not resort to violence to upend that result, and whereby also the winners agree not to harm the persons, liberty, and property of those on the losing side, politics helps provide lubrication to keep under control the frictions that inevitably arise among groups and individuals over perceived scarcities of goods.

But no matter the substance, government action undermines private problem resolution that relies for its efficacy on the other societal bonds. Government action is based on an institution whose primary benefit (as well as its practical legitimacy) to us is, frankly, coercion. After all, government usually has its origins in violence and wrongs, though many defenders of government, seeking to give it an ethical veneer, try to place its origins in ideal human nature (Aristotle), God (Thomas Aquinas), or human free will (Locke). True to its origins, government continues to act through coercion. Even democratic majoritarianism is based on a mob mentality of implied coercion if one fails to comply with the legal and political acts of government. In this sense, too, Madison is undoubtedly right in his aphorism, “Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.”

I say this with full appreciation of the need for government in certain circumstances. But I also am aware of the danger that government poses to individuals. That danger can manifest itself in direct and arbitrary violations of an individual’s life, liberty, or property. Most people recognize this threat and will more readily be roused against such acts.  Unless one is living in a terror state such as North Korea or Zimbabwe where immediate survival and physical freedom are prime concerns, there is another, more insidious danger. I refer to the danger of soft totalitarianism, where the government through its manipulation of the political process undermines the numerous other bonds on which society is based. By government I am referring here to that class of career politicians and bureaucrats whose interests run counter to the citizenry. Those who are part of government can only preserve their pay and their other privileges by showing their importance. To do that, they must first maintain, and then increase, their influence. As Obama’s chief of staff is quoted as saying about the current state of affairs, “Never let a crisis go to waste.”

In a classic totalitarian system, the political rulers successfully replace those manifold social bonds with bonds that tie the people entirely to the political system. Religious institutions, labor unions, political parties, fraternal organizations, and, indeed, the family itself, are cast aside or neutralized by government substitutes. Social bonds are transfigured into government bondage. And, as often as not, this will be done by punctilious adherence to law and legal institutions. The “rule of law” is no guarantee of freedom. Practical examples from ancient Sparta to modern 1930s Germany, and from theoreticians of politics from Plato in The Republic to Thomas Hobbes in his Leviathan teach that lesson forcefully.

National Review’s Jonah Goldberg not long ago wrote a thoroughly-documented book with the provocative title Liberal Fascism, which I reviewed last year. The thesis of his work is that the current liberal welfare state, and its social-activist addendum, the “politics of meaning,” with its roots in fascist theory, is a manifestation of soft totalitarianism as it refocuses individual decision-making and private ordering into collective political action and public policy.

This is the danger I see from the near-trillion dollar “stimulus” in particular and the Obama administration’s leftist roots in general. The fiscal and regulatory monstrosity accelerates the process of government control of private decision-making in unprecedented fashion. As it is merely a down payment on changes to come, it will require more government funding that will be taken out of the pockets of a diminishing percentage of taxpayers. With heavy taxation, private access to funds atrophies. Disposable private income, on which many of the non-political bonds rest, drops. Many of those bonds are weakened and often become  unsustainable. Anglo-American history from at least the 14th to the 19th century shows a keen awareness among influential socio-economic classes of the direct threat to liberty posed by heavy taxation.

In turn, government regulation is like water that invades every nook and cranny of life. It knows no boundaries. As the coerced political bonds gradually replace traditional voluntary bonds, social freedom is replaced by government control. But social freedom just comprises a collection of individual choices. Ultimately, then, the cumulative supplanting of social bonds by government is as fundamental an assault on individual freedom as direct governmental restrictions on individual liberty. But far worse than any direct assault on liberty is that this creep toward abject dependency on government does not rouse the people out of their torpor. It is like the frog in the pot of water that does not jump as the water gradually is heated to boiling, whereas a frog suddenly exposed to hot water would try to escape.

The problem in our society is that government’s increasing role dulls initiative, both for direct individual advancement and for working to preserve and promote social bonds. For seventy years, people increasingly have come to expect the government to provide for their desires, instead of relying on themselves and on private networks of family and community. In turn, those who pay for government wash their hands of further responsibility because “they gave on their 1040.” This diminishes the full humanity of both those who get government assistance and those called upon to pay for it unwillingly and without consent. Sooner or later, reliance on a single bond to government will fail to provide the effective resolution of individual needs that a decentralized network of multiple complex and overlapping private relationships can provide. Instead, we get New Orleans during Hurricane Katrina, when a population that had become accustomed to government “help” was incapable of developing enough initiative to save itself. Rather, they became sheep waiting for the shepherd to lead them. Despite self-congratulatory and delusional references to “community,” in New Orleans the bonds of community had been destroyed and the city turned into a government dependency. In equally hard-hit portions of Mississippi, the sense of community had not become as eroded, and those people took it upon themselves in the first instance to help themselves and each other.

The Obama administration likely will not cause a sudden and dramatic systemic collapse. But its exploitation of a run-of-the-mill business correction as an excuse to ratchet up government interference in private choices and to tie more individuals more tightly to government spending as payors or recipients further weakens individual incentive, energy, and freedom.  In the same manner, it further destroys the network of social bonds that prevent tyranny by those who control the levers of the political machine. Despite Obama’s full-court press, a large percentage of the public is uneasy about his announced economic “stimulus” program, never mind the parts not yet explained to the public, most of which will never have the light of public disclosure shined on them. But that will change after eight years of such government expansion. After all, as more people are swept up and become accustomed to that state of affairs, fewer have the will and ability to resist.

That is the change that is gradually overtaking us as enough of the American people, though uneasy about the whole thing, submit to government blandishments of hand-outs paid for by others. It is a change the political classes have been hoping for. Many of the rest of us, not at all.

There are some students who quietly sit in the back of the class, saying very little, but after class approach me with a very thoughtful and basic question. For a professor, that’s always a wonderful experience because it is gratifying to see that someone has been listening to you and thinking about the material. You only wish that those students would ask the question in class and share the wisdom with their classmates.

One of my students, Ali Vazin, came up with just such a question yesterday. We had been discussing the Supreme Court’s Heller decision that overturned the District of Columbia handgun ban because it violates the Second Amendment. As a part of its reasoning, the Court, per Justice Scalia, ventured into a discussion of the natural right of self-defense. I then posed the question how the analysis might be different if this had been a law in a state or city, rather than D.C. Any limits on such laws would have to come through the Fourteenth Amendment as a deprivation of a liberty interest without due process of law, since the Second Amendment does not apply to states or cities.

There are several ways such an analysis might proceed. But, under most of them, the difficulty becomes to determine why gun possession for self-defense is such a protected liberty interest whereas, say, recreational drug use is not. Our discussion eventually got around once more to the idea of self-defense as a natural right (part of the drive to self-preservation), a liberty necessary to protect one’s right to life. That “natural right” might be posited as a “self-evident truth” without further speculation. Or, it might be derived in several ways through speculative reason, among them as a derivative from natural law reasoning.

The reasoning might go something like this, with due credit here to Aristotle and Thomas Aquinas. We share with all living things a drive to live, a point on which a Christian creationist and a Darwinist materialist might agree. Such universality is evidence of a “good,” since we are attracted to what we perceive as good. While mere perception might be in error or a matter of opinion or convention only, in this particular case that is not so, since the maintenance of life is the precondition for the existence of any “good” for us. “Good” and “bad” have no meaning if we are not alive. As an aside, “good” and “bad” in a moral sense have no meaning in the absence of specifically “human” conscience. As a precondition to other aspects of “good,” then, which may or may not be mere opinion or convention, the existence (and maintenance) of life is a “good” objectively and as a matter of “truth.”

SInce life is a good, and is the most basic and fundamental good of all, to deprive one of life obviously is the gravest transgression against that person. And this is true even if the person who ends the life is killing himself, not another. The right to life is an “inalienable” (not capable of being surrendered) right, something the Declaration of Independence recognizes as a “self-evident truth.” Given the importance of life, then, there is a fundamental duty (which takes on an ethical dimension in human relations), not only on others not to deprive you of life (subject to very limited overriding non-private exceptions such as criminal punishment and just war), but also on you to preserve it for yourself. That, in turn, gives you a fundamental and natural right to do what is necessary to preserve your life, subject again to certain restrictions based on equally weighty ethical considerations (such as a prohibition on intentionally taking the life of an innocent third party to save yours). To simplify—since discussion of duties and rights through the prism of ethical standards starts with the general case—you generally have a natural (moral) right to defend your life.

Such a natural right, or liberty, cannot be taken from you by the community. Such a right also is qualitatively vastly different than a right to use recreational drugs. A law that sought to deprive you of that right of self-defense (and, by extension, the reasonable means to exercise it) would violate natural law.

Mr. Vazin’s question was why do we even need to refer to “natural law” as a restriction on the validity of ordinary laws? Why not just say that people will always seek to defend themselves as a matter of practice, and common sense tells us that a law that interferes with such prevalent human action is invalid?

A sound question. But it hides both an interpretive ambiguity and an epistemological weakness. The former is, “What do we mean by ‘common sense’?” If the term means that what all humans through the use of their reason would deem to be morally “right” behavior (the exercise of what Cicero and others have called “right reason”), it becomes merely another way to describe the process of determining the content of the “natural moral law” addressed above.

But if common sense means no more than what people hold to be true as a matter of uninvestigated opinion, the term reflects only the actual conduct of a substantial, but undetermined, proportion of the people at that time and place. That would bring us to the latter problem, the epistemological weakness. If common sense is defined merely as what people happen to do out of convention, how can we know that it demonstrates anything more than itself? We cannot say that the behavior reflects anything universal outside the conduct itself. It is merely conventional behavior, and we cannot say that it incorporates a greater ethical “truth.” Put another way, it isn’t that convention is good because it is “good,” it is that convention is good because it is “convention.” From another perspective, this is the old problem of “universals,” the meaning of words as they relate to the things they describe: Do words connect to “real” essences of things, or are they merely conventional, descriptive “sounds”?

The problem then becomes that we cannot say that such customary or conventional behavior has a claim to greater validity as truth or ethical goodness than the law we are challenging. If self-defense as a right, and the respect for the importance of life it reflects, is nothing more than conventional behavior at that time and place, it is thin gruel, indeed. The “right” has no greater inherent value than does the law adopted by the legislature that limits or bans the right. Both are simply expressions of community sentiment or opinion, and the clear, positive statute is better evidence of that sentiment than the diffuse and ambiguous “common sense.” By analogy, the clear terms of a written contract prevail over the contrary customary behavior of the parties.

True, a statute (such as one that prohibits self-defense) that is in conflict with such common sense and conventional behavior may be difficult to enforce. But that is due to human willfulness in not obeying the statute. The community may choose to change or repeal the statute. Or, it may choose to retain the statute as a symbol but not to enforce it out of pragmatic considerations. Or, it may enforce the statute vigorously at the risk of social conflict. Those are utilitarian considerations.

But there is no possible claim under this type of “convention” analysis that the statute (even one that prohibits self-defense), while on the books, is not worthy of being obeyed. That judgment could come only if the statute has a lesser ethical validity than the opposing principle, be it formally “constitutional” or extra-constitutional in origin. Courts decide cases on the basis of such a hierarchy of commands all the time. Legal systems share the view that, while custom can inform ambiguous meaning in statutes, mere custom (convention, common sense) cannot contradict statutes. For another thing, in a democratic system, courts have no legitimacy to overturn the decisions of popularly-elected legislators on the flimsy ground of contradictory “convention.” On the other hand, at least under our system, higher law (specific constitutional provisions or—at least in the view of some—properly-derived extra-constitutional principles) has a greater claim to the court’s obligation to obey it than to obey a contrary statute. It has that greater claim because of its higher ethical standing.

That is why courts interpret “liberty” through appeals to natural law, natural rights, human rights, and similar formulations to describe universal ethical principles such as the right of self-defense to defeat statutes that would curtail such rights.