Lessons for the Church from the Kavanaugh Debacle

Eamonn Clark

In the past few years, it has become evident that a vast number of people, including some average pew-sitting Catholics, do not understand the value of jurisprudence – that is, the principled examination and judgment on some matter of justice by a legitimately authorized party. The show-trial of Justice Kavanaugh is a wonderful case-study.

By now, there is a mountain of both negative and positive evidence against the claims of the main accuser. (The other accusers have all but been entirely discredited at this point.) To date, there is not a single significant piece of corroboration or verification, and if there were more holes in her story it wouldn’t even exist. (To me it seems like a jumble of “recovered” memories, but I digress.) But somehow this seems not to be enough for 49 U.S. senators, millions of Americans, and many foreign onlookers. To which I say: why?

“It’s not a trial, it’s a job interview – it has higher standards.” This is the claim. Well, fair enough… But we would never want our father, our son, our brother, our friend to be treated in such a way for any reason. We would want for them the presumption of innocence. In this particular case, there is not even probable suspicion (enough for warrants or subpoenas), to make no mention of a preponderance of the evidence, the step below what is necessary for conviction (“beyond a reasonable doubt”).

It is different with Kavanaugh because, despite his (appropriately) evasive answers regarding the matter, he is obviously not a champion of the pro-choice cause. It is this unwelcome ideology which primarily motivated the grossly unjust and immature tactics that are clear to all who don’t have a devotion to Roe and the DNC platform in general.

What does this have to do with the Church?

There are many, many bishops and clergy who have unwelcome opinions (whether heterodox or not). Some of them are very powerful and enjoy great public respect, and nonetheless they have been accused of allowing or covering up bad things (like… sexual abuse), or they have been accused of such things themselves. (Frankly, it is surprising that nobody tried to tie Kavanaugh to McCarrick, given that the former has been a prominent Catholic in D.C. for many years. Maybe that would have come eventually: “He knew someone who knew what McCarrick had done, therefore he was guilty of helping to conceal abuse! We must investigate!” Etc.) We are watching our own investigative debacle unfold with the Viganò accusations (and beyond) about similar issues… And we are facing a litany of coming grand jury reports in the USA.

Some accused clerics are guilty. Some of them are not. We all know this. What is challenging is some principles of jurisprudence, especially when applying them outside the courtroom. So perhaps this is a good moment for the Church to reflect on what we all just watched happen in the USA. There are many lessons to take from the Kavanaugh debacle.

Lesson #1: Truth is not the only value in investigations

We’ve heard that “if finding the truth is all matters” then the FBI investigation into Kavanaugh would have been open-ended (viz., endless, thus destroying or at least severely limiting his chances of confirmation). The problem is, prescinding from any partisan desires about what the truth is or when and how it should be found, finding the truth is not all that matters. Fairness matters as well, given that the truth must be found through a process. Sometimes, what must be done to find the truth, or to get as close as possible, involves unfairness. This is why, for example, evidence obtained by unlawful search and seizure is inadmissible in court, even if it could demonstrate the defendant’s guilt. Even though everyone knows the defendant is guilty, it’s impossible to convict him, because if that’s done, then the entire set of principles of search and seizure laws falls apart. But sometimes an unfair process is used against a person who is innocent.

All well and good for criminal convictions, but one can’t unsee incriminating evidence. However, a weaker version of the principle of the presumption of innocence should pervade the formation of our opinions of those accused of terrible crimes. We should, in fact, usually suspend judgment until sufficient evidence comes forward and/or the accused has a chance to speak. In the meantime, we don’t get to ruin someone’s life, either by publicizing our ill-formed premature judgments in favor of the accuser or by digging into every crevice of the accused’s personal life, especially if we are putting it on public display.

This includes priests and bishops and other church officials… Investigations need to follow a reasonable path of questioning which, at some point, needs to be terminated. The goal should not be to find corroboration/substantiation – because if there is no such evidence, the investigation will never finish…

Lesson #2: Reputation is extremely valuable

St. Thomas puts the value of a good name under the value of life and over the value of physical possessions. (By the way, his Question on Unjust Accusations is also relevant – and it is really dynamite.) Once taken away, a good name normally can’t be regained except with extreme difficulty.

I’ve linked to this article from Homiletic and Pastoral Review before, but here is a quick summary:

Publishing the names of clerics who have been “credibly accused” of sexual abuse is pointless, arbitrary, harmful to morale among the clergy, and, depending the standard used, egregiously sinful.

To take a diocese named in the HPR article, a current statement from the Archdiocese of Baltimore exemplifies the lamentable sort of tendency to put “accountability” above basic norms of jurisprudence. A document produced in response to a recent “listening session” in the Archdiocese lists several gravely problematic items, such as:

“Since 2002, the Archdiocese has disclosed the names of credibly accused priests at the time the allegations became known. Their names have been updated to the original list, which is posted on the archdiocese’s website.”

The central problem here is this: who decides what “credible” means, why is it that person or persons, and how do they determine that credibility? It is a mystery. I won’t go through the entire argument which the HPR article presents (it is really worth reading for yourself), but suffice it to say that this is a fatal flaw. It is especially absurd to say that the allegations are published as soon as they become known – taken at face value, this means that a judgment is made instantly about the credibility of an accusation, supposedly meaning that it meets the preponderance-of-the-evidence standard, without even hearing the accused give any kind of defense or seriously weighing the available evidence before possibly helping to ruin a person’s good name unnecessarily. Perhaps Baltimore has a very thick and subtle manual of how to determine “credibility” which is meticulously followed and they are here overstating or poorly stating their approach, but no such manual is referenced. (This same document does mention a “lay independent review board,” but it is unclear about its role in determining “credibility.”) It leaves the impression that their process is astonishingly imprudent and grossly unjust. Beyond that, it is not even clear what good publishing these names actually accomplishes, which is in part why basically no company, anywhere, ever, has had such a policy for their employees.

“The Archdiocese hosts a public meeting when a priest or other minister of the Church in active ministry is credibly accused of abuse.”

Why? So that anyone with an interest in harming that person or the Church in general has a chance to capitalize on an allegation? (This is exactly what we saw happen with Kavanaugh… Publicity can encourage a dog pile if it’s the right person being accused. Wicked people see that this is their chance to get some money, hurt a cause, forward an agenda, draw attention to themselves, etc.) It seems outlandish to do anything other than launch a discrete formal inquiry among trustworthy people who might have relevant information and who can keep their mouths shut about the investigation.

“There is zero tolerance for anyone found to be credibly accused of abuse. Anyone who is credibly accused of child sexual abuse is permanently removed from ministry.”

Leaving aside the weirdness of switching from the extremely vague word “abuse” to the still vague phrase “child sexual abuse,” we return to the central question: who decides what “credible” means? And what if it comes out that the accuser was wrong? Surely, it would not mean a “permanent” removal then, right? If there is a process of appeal and reinstatement, why use such threatening language? It reads like a juvenile smokescreen at best, and a draconian strong-arm at worst.

Much like secular liberals’ use of the words “tolerance” and “equality,” so do some dioceses use words like “accountability” and “transparency” – if you are on the “wrong side” of someone’s desires or opinions, you will be made to pay dearly. There is then “zero tolerance” for you. But no mention will be made of “zero tolerance” for false accusers, or unfair investigative practices, or unnecessary publicity. St. Thomas’ take on false accusations is worth explaining briefly: basically, if an accuser is unable to prove what he says, he should be sentenced just as the defendant would have been if found guilty. Now, perhaps it should be subject to a slightly lower standard than a conviction (such as preponderance-of-the-evidence), but this is a serious suggestion from a serious thinker which seems entirely forgotten. It would deter frivolous accusations and opportunists.

At any rate, the approach of dioceses like Baltimore is more akin to Lady MacBeth washing her hands than to balanced self-policing. And I have seen this intemperate attitude cause serious harm. The righteous intention to protect the vulnerable is achieved by adopting a strategy which is something between ritual purity and a witch-hunt. And given that scandal-plagued Maryland is now facing a Grand Jury investigation, this is all the more relevant for poor Baltimore.

Note too, by the way, that the Pennsylvania Grand Jury Report in fact did not attempt to give us a list of priests found guilty of sexual abuse, except indirectly. (Nor will any other similar report in the future.) It gave us a list of “church personnel” who were accused of “sexual abuse” (a vague term) in a way the investigators thought credible enough to include in their investigative report. That is quite a different thing. Consider, for example, the report’s inclusion of an allegation against Fr. Ganter, who was born in the 1800’s… The incident supposedly happened some 80 years ago. And yet his name is among those “credibly accused,” even though he’d been falsely accused in the 40’s by three kids who later admitted they had lied. Perhaps the Grand Jury conflated “realistic” with “credible” – an easy but disastrous mistake.

Lesson #3: The opinions of survivors are not sacrosanct

As I pointed out in another post, experience is not the same as wisdom, and this error is pervasive in the Left. (Experience is especially not partial-omniscience – as if being a survivor of sexual assault means you know what happened 36 years ago in an unknown house in suburban D.C.) Having been through some experience simply does not make a person an expert on the objective causes and effects of that kind of event. A child who grows up in a war may indeed be able to describe what it feels like to be afraid of bombs every night, but he might not be a wise counselor to a General fighting a war. In fact, his own experience might blind him to the broader picture. For example, he may be so empathetic to kids like him that his advice to forego an attack with a moderate risk of collateral damage would occasion the enemy’s victory, resulting in far more damage than what was avoided.

As we saw with the unending barrage of feminist activists in the news, this is not so popular a doctrine. Especially remarkable was the encounter with Sen. Flake and some women who accosted him in an elevator, which occasioned the supplementary FBI investigation. I suppose the argument is, “I was abused by someone once, therefore Kavanaugh is guilty of abusing this other person.”

It is surely important to give a forum for survivors to speak their mind, to tell their stories, and generally to feel heard and consoled. However, one need not have survived a sexual assault to know how to investigate an accusation of sexual assault. And sometimes people further removed from an experience of abuse have a clearer mind on the issue, as there is no projection of one’s own experience onto other cases which might be quite different in nature.

Lesson #4: We are not so holy

As I recall the story, one day, an elderly St. Francis of Assisi was praised by a man for being a living saint. His reply: “I could still father many children,” implying not that he still just might get married one day and have a big happy family, but rather that he still just might become a monster. The moral is twofold – don’t definitively praise a man’s virtue until he’s dead, and don’t presume that you are beyond stooping to any level of sin. A corollary would be to see another’s failings in light of one’s own experience of sin… (There was one senator in particular who was troubling in this regard, as he has admitted to groping a girl in high school while she was intoxicated.)

To expect absolute moral perfection from anyone other than God or the saints in Heaven is stupid. It is especially stupid, hypocritical, and sinful to find as many flaws as possible in a person’s distant past to smear his or her character. This is becoming more and more relevant – consider that there might be some young man right now saying dumb things on Facebook who will one day be elected Bishop of Rome.

Frankly, watching the Senate proceedings reminded me of Christ arguing with the Pharisees and scribes – trick questions, a clear ideological agenda, a double-standard, feigned or unjustified outrage, hypocrisy, the bastardization of the fundamental text at issue… But we could all become like that. And all of us would without God’s special grace.

Lesson #5: Tribalism is bad in rational discourse

If one were to remove the letters after the names of the senators involved in the investigations and hearings, and a nameless president had nominated an opinion-less judge, what sense could possibly be made of this whole affair? None, I suggest. Epistemic vice became moral error. An observer to such a politically neutral hypothetical fiasco following the outline of the Kavanaugh debacle would be astounded by some senators’ fanatical commitment displayed to investigating seriously dubious allegations, obsession over drinking habits and notes in a high school yearbook, deep concern about judicial temperament over mild expressions of frustration at being accused of running a gang rape/drug ring and raging alcoholism in front of millions of people without any corroborative evidence, etc.

Targeted anger, imbalanced presumptions, motivated reasoning, double-standards… It’s all very bad, and it’s all very easy to fall into, due in no small part to the fact that fights can be fun and give us a sense of meaning and belonging. We have to avoid it – for the Church, the party lines might be “conservatives” and “liberals,” or “laity” and “clergy,” or “bishops” and “everyone else,” or “my diocese” and “the Vatican.” Well, as it turns out, people are complicated, and so too is human conflict. Tribalism deadens the senses to this reality.

Advocacy groups are a good thing. Lawyers are a good thing. (Incredible, but true.) But mobs are bad. And when advocacy groups or lawyers are indistinguishable from the mob, that’s when you have trouble. There are certainly predatory clerics around, and they have been concealed by other clerics. For sure. But this calls for the use of scalpels rather than hammers – let alone torches and pitchforks.

Lesson #6: Abortion is worth everything to the Left

They are willing to weaponize practically baseless accusations to run a man’s good name into the ground and then some. (This might also include the accuser, who apparently wanted to remain anonymous to the public.) And anyone who does not realize that the whole thing was about Roe v. Wade needs a serious wake-up call. SCOTUS is now a majority pro-life bench… The Leftists are terrified, they are wounded, and therefore they are extremely dangerous. Whom will they come for next to safeguard the great sacrament of the Canaanites? Me? You? Your parish priest? Your bishop? The pope? Be on your guard.

Lesson #7: Sometimes it’s just not worth it

“Reception is according to the mode of the receiver,” goes the old adage. The screaming banshees near the senate gallery, the protesters pathetically clawing at the 13-ton doors of the Supreme Court, or even the folks chanting trite little poems out on the street, are not going to be convinced by reason anytime soon. (Although, to be fair, some of them turned out to be paid to protest, so maybe they could be reached.) They feel like such-and-such is true, and that’s enough for them. Or it’s politically convenient for such-and-such to be true, and that’s enough for them. It doesn’t matter what the actual evidence is…

These people are incapable of being reasoned with, at least for the moment. As St. Thomas would say, it is like arguing with a vegetable. So, what to do? Let the banshees scream, and just do what needs to be done. Maybe eventually they can be reached, but not right now.

Plenty of people are so unbelievably angry with the Church that it is just not the right time to reach them. Some people are angry with moderate jurisprudence for accused clerics. So be it – let them be angry, and meanwhile let’s focus on doing what is truly just. Justice, by the way, is one of three goods which allows for grave scandal, in St. Thomas’ mind, the others being life and teaching right doctrine.

Lesson #8: Beware of false friends

There are many snakes in the grass who are willing to hurt good people by lying about them or otherwise damaging their reputation… Some of them are or have been “friends.”

People who are counting on secular Grand Jury reports to “fix the Church” might be falling into such a trap. Remember that Judas was not only a traitor to his Friend, but he also trusted the government too much. The two sins went together.

It is His Church, not the country’s.

Enough said.

Lesson #9: Men are seriously vulnerable in the #metoo era

This is especially true for priests. I once heard of a bishop who had a policy when he was around kids (which I suppose for him would only be at major public events), which was this: at all times, have one hand on the crosier, and one hand on the pectoral cross… Thus he protected himself from accusations. And many good clergy live in this kind of fear, a fear which is becoming less and less neurotic as the moral panic increases among the laity. They need our support, and anything we can do to help protect them is good – help them retain plausible deniability (like appropriately reminding them of diocesan CYP policies, not putting them in situations where they could easily be accused “credibly” by a mischievous kid, etc.), encourage them to stay beyond all reproach, tell them you trust them. It all helps.

It might also be worth it for clergy to take a cue from Justice Kavanaugh, who has kept a rather meticulous personal calendar for decades (remarkable!) which he produced in favor of his innocence… Names, places, times, activities. Tell your secretary to keep all of it on file, and to correct it if there are any missed appointments, unexpected events, etc. by making a special note. I know I’m considering doing this.

Lesson  #10: God alone is the Just Judge

Any human justice system is going to be imperfect. There will always be procedural rules about due process which occasion the protection of real criminals. There will always be innocent people wrongly accused who are found guilty in a fair trial.

History, strictly speaking, can never be demonstrated. We will never be totally sure about what happened in some house in suburban D.C. 36 years ago. We will never be totally sure about the veracity of any accusation of a crime, as in the end it could always have been a carefully crafted hoax to get someone framed, or an unrealistic truth. And yet we need to do our best anyway.

God, however, does not investigate – He knows, and His judgment is always just.

The Double-Effect Death-Spiral… and the Way Out!

Eamonn Clark

There are a number of pressing problems in Catholic moral theology, especially in bioethics. One of them is the right understanding of the so-called “Principle of Double-Effect,” (PDE) or whether this is really a legitimate principle at all in the way it is normally expressed. Now that Dr. Finnis has both parts of his series on capital punishment out, let’s put on our moralist hats and get to work.

I’ll spare you all the ins and outs of the history of the problem – Fr. Connery’s wonderful book on abortion in the Catholic moral tradition deals with this in some relevant detail – but will give you the gist of the recent discussions so that we can dive into John Finnis’ articles. I too will write in two parts, I think…

The 19th century saw the problem of “craniotomy” come up, and this is a decent and to me, most familiar way to dive into the problem of PDE. (Craniotomy is crushing the skull of an inviable fetus, in this case with an eye to extracting the child to save the mother.) Archbishop Kenrick of Baltimore wrote his morals handbook and forbade the operation, Cardinal Avanzini of Rome anonymously opined in favor (page 308-311) of the procedure in his journal (which would become the Acta Apostolicae Sedis), and Cardinal Caverot of Lyon (the city pictured above, coincidentally) petitioned the Holy Office for an official response. Needless to say, there was some controversy.

In response to Caverot’s dubium, the Holy Office (the precursor to the CDF) decided in favor of Kenrick’s position. But it did so cautiously, saying that the procedure “cannot be safely taught.” It did not exclude definitively the liceity of the procedure in itself.

Let’s fast-forward to today’s iteration of the old camps, of which there were and still are precisely three…

The “Grisezian” Position:

Doctors Grisez, Finnis, and Boyle were major proponents of the liceity of craniotomy in the 20th century and into the 21st. Grisez lays out his argument in several places, including in his magnum opus (entirely available online), The Way of the Lord Jesus. It is worth quoting the relevant passage in its entirety:

“Sometimes the baby’s death may be accepted to save the mother. Sometimes four conditions are simultaneously fulfilled: (i) some pathology threatens the lives of both a pregnant woman and her child, (ii) it is not safe to wait or waiting surely will result in the death of both, (iii) there is no way to save the child, and (iv) an operation that can save the mother’s life will result in the child’s death.

If the operation was one of those which the classical moralists considered not to be a “direct” abortion, they held that it could be performed. For example, in cases in which the baby could not be saved regardless of what was done (and perhaps in some others as well), they accepted the removal of a cancerous gravid uterus or of a fallopian tube containing an ectopic pregnancy. This moral norm plainly is sound, since the operation does not carry out a proposal to kill the child, serves a good purpose, and violates neither fairness nor mercy.

At least in times past, however, and perhaps even today in places where modern medical equipment and skills are unavailable, certain life-saving operations meeting the four conditions would fall among procedures classified by the classical moralists as “direct” killing, since the procedures in question straightaway would lead to the baby’s death. This is the case, for example, if the four conditions are met during the delivery of a baby whose head is too large. Unless the physician does a craniotomy (an operation in which instruments are used to empty and crush the head of the child so that it can be removed from the birth canal), both mother and child eventually will die; but the operation can be performed and the mother saved. With respect to physical causality, craniotomy immediately destroys the baby, and only in this way saves the mother. Thus, not only classical moralists but the magisterium regarded it as “direct” killing: a bad means to a good end.

However, assuming the four conditions are met, the baby’s death need not be included in the proposal adopted in choosing to do a craniotomy. The proposal can be simply to alter the child’s physical dimensions and remove him or her, because, as a physical object, this body cannot remain where it is without ending in both the baby’s and the mother’s deaths. To understand this proposal, it helps to notice that the baby’s death contributes nothing to the objective sought; indeed, the procedure is exactly the same if the baby has already died. In adopting this proposal, the baby’s death need only be accepted as a side effect. Therefore, according to the analysis of action employed in this book, even craniotomy (and, a fortiori, other operations meeting the four stated conditions) need not be direct killing, and so, provided the death of the baby is not intended (which is possible but unnecessary), any operation in a situation meeting the four conditions could be morally acceptable.”

We can see the attractiveness of the Grisezian position. It removes the uncomfortable conclusion that we must allow two people to die rather than save one. However, it simultaneously introduces an uncomfortable conclusion: that we may ignore the immediately terrible results of our physical exterior act in favor of further consequences of that act due to the psychological reality of our intention, in this case contingent on even further action (viz. actually extracting the child after crushing the skull – presumably, a surgeon may perform the craniotomy and then simply leave the child in the womb, thus failing to save either life).

Hold on to that thought.

The “Traditional” Position:

I put the word “traditional” in scare-quotes because it is the position which follows the cautious prohibition of the Holy Office, but it is not very old and is merely probable opinion. It is taken by a good number of moralists who are “conservative” and “traditional” in other areas. And it doesn’t have a modern champion the way Grisez was for the pro-craniotomy camp.

Folks in this school often make more or less good critiques of the Grisezian position, zeroing in on the lack of the appreciation for the immediate physical effects which flow from an external act. How is it that crushing a child’s skull does not equate with “direct killing”? It seems that such an action-theory, as proposed by Grisez, Finnis, and Boyle (GFB) in their landmark essay in The Thomist back in 2001, is utterly at odds with common sense. The plain truth then, is that craniotomy, just like ripping the organs out of someone healthy to save 5 other people, functions based on consequentialism.

This position, however, must bite two bullets. First, there is the sour prescription to let two people die when one could be saved. Second, it throws into confusion the topic of private lethal self-defense… Doesn’t shooting a person in the head also directly kill in order to save another’s life? GFB made this point in their Thomist essay, and, in my opinion, it is their strongest counter-argument. It pulls us back to the fundamental text in the discussion, q. 64 a. 7 of the Secunda Secundae, whence supposedly cometh PDE.

Hold on to that thought too.

The Rights-Based Position:

The final position for our consideration comes most recently from Fr. Rhonheimer, who seems to be at least in part following Avanzini. Basically, the argument goes like this… In some vital conflicts, like the problematic pregnancy at issue, one has two options – save one life, or allow two deaths. Everyone has a right to life, but in cases where we find acute vital conflicts, it sometimes makes no sense to speak of rights. The case in which a person in a vital conflict (the child) will not even be born is one such example. Therefore, while the child retains the right to life, it makes no sense to speak of this right, and so it does not bear on the decision of whether to perform an act which would end in the child’s death if it will save the mother.

Leaving aside the problem of the language of rights in moral discourse (see McIntyre’s scathing critique in After Virtue), we can simply observe that this is a position which does not evidently derive from virtue-ethics but is made up wholesale out of a desire to appease an intuition. Rhonheimer, as far as I recall, does not even attempt to integrate his position into the broader framework of moral theology. In sum, the damning question is, “Why precisely does acute danger to others and shortness of life remove the necessity to respect the bodily integrity/life of a person?” To me, it seems little more than an appeal to intuition followed by foot-stomping.

I credit Fr. Rhonheimer for making an attempt to present a different solution, and certainly, not all of his work is this problematic. But we are presently concerned with this particular topic. Anyway, I suggest that this is not a serious position for further consideration.

A Brief Synthesis

I recently wrote my STB thesis on moral liceity with respect to “per se” order, which is to say that those acts with “per se” order form the fundamental unit of moral analysis upon which the whole question of “object” vis-a-vis “intention” turns. I look at Dr. Steven Long’s truly excellent groundwork in his book The Teleological Grammar of the Moral Act, but I expose what I found to be some ambiguities in his definition and presentation of what exactly constitutes per se order. Skipping over all the details, let me quickly show how problematic the first two foregoing positions are and then give a rundown of the basic solution and its integration with respect to capital punishment. (It is Finnis’ articles on the death penalty which brought us here, remember!)

There are 3 dilemmas we have already mentioned: the central problem is craniotomy. At the two poles are the “transplant dilemma,” with one healthy patient and 5 critical patients in need of new vital organs, and the standard case of private lethal self-defense (PLSD), such as shooting a person in the head in order to stop his lethal attack.

The Grisezian position ably explains the craniotomy and PLSD. Nowhere – and I have looked pretty hard – do NNL theorists explore the implications of their action-theory (such as presented by GFB in their article) with respect to something like the transplant dilemma. One could easily appropriate the language of Grisez’s passage in TWOTLJ to accommodate such an obviously heinous action as ripping out the heart, lungs, kidneys, liver, etc. of a healthy man to save 5 others. (It should be noted that the individual’s willingness to give his body over to such an act, while good in its remote intention, is totally inadmissible. I think basically all Catholic moralists would agree with this.) To rip out the man’s vital organs could certainly be described as “reshaping the body” or something similar to Grisez’s description of craniotomy as “reshaping the skull.” After all, the surgeon need not intend to kill the man – he could simply foresee it happening in view of his means to save these other men.

GFB evidently miss the point in their Thomist article, as they claim a causal equivalence between craniotomy and procedures done on a person for that person’s own sake, on page 23: “It is true that crushing the baby’s skull does not of itself help the mother, and that to help her the surgeon must carry out additional further procedures (remove the baby’s body from the birth canal). But many surgical procedures provide no immediate benefit and by themselves are simply destructive: removing the top of someone’s skull, stopping someone’s heart, and so forth.” We can see, then, that the principle of totality is undervalued by GFB and those who follow them. Serious damage done to a person must at least help that person. Any help to other persons is secondary, and I would argue per accidens rather than per se… One human substance is always related accidentally to another human substance.

The traditional approach more or less throws the teaching of St. Thomas into a cloud of ambiguity. By stating that the craniotomy is illicit because of the directness of its physical causation, the language in q. 64 a. 7 becomes unintelligible. We have to see the whole thing:

“Nothing hinders one act from having two effects, only one of which is intended, while the other is beside the intention. Now moral acts take their species according to what is intended, and not according to what is beside the intention, since this is accidental as explained above (II-II:43:3; I-II:12:1). Accordingly the act of self-defense may have two effects, one is the saving of one’s life, the other is the slaying of the aggressor. Therefore this act, since one’s intention is to save one’s own life, is not unlawful, seeing that it is natural to everything to keep itself in ‘being,’ as far as possible. And yet, though proceeding from a good intention, an act may be rendered unlawful, if it be out of proportion to the end. Wherefore if a man, in self-defense, uses more than necessary violence, it will be unlawful: whereas if he repel force with moderation his defense will be lawful, because according to the jurists [Cap. Significasti, De Homicid. volunt. vel casual.], ‘it is lawful to repel force by force, provided one does not exceed the limits of a blameless defense.’ Nor is it necessary for salvation that a man omit the act of moderate self-defense in order to avoid killing the other man, since one is bound to take more care of one’s own life than of another’s. But as it is unlawful to take a man’s life, except for the public authority acting for the common good, as stated above (Article 3), it is not lawful for a man to intend killing a man in self-defense, except for such as have public authority, who while intending to kill a man in self-defense, refer this to the public good, as in the case of a soldier fighting against the foe, and in the minister of the judge struggling with robbers, although even these sin if they be moved by private animosity.”

Without launching into a critique of the Cajetanian strain of commentary which ultimately gave rise to the crystallized formulation of PDE which pervades most moral discourse on vital conflicts, I will again follow Long and say that the “rules” of PDE really only work if one already knows what one is looking for. In this respect, PDE is like the moral version of St. Anselm’s ontological proof for God’s existence – it is nice to have in a retrospective capacity, but it is not actually that helpful as an explanatory tool.

As we have seen, GFB take Thomas to mean that one does not “intend” to kill the aggressor, just as the surgeon does not “intend” to kill the child in the craniotomy. The traditional school does not have as clear of an answer – it seems forced to say, somewhat like Fr. Rhonheimer, that the rules just “don’t apply,” yet without a convincing explanation. After all, the principle of totality does not bear on the slaying of one person for the sake of another, even in the case Thomas addresses. Furthermore, because it appears that it is only due to the death of the aggressor that the attack is stopped, thus implying “intentional killing” as a means, how do we explain St. Thomas’ position?

We can note a few things in response. First, it is in fact not death which stops the attack initially – it is the destruction of the body’s capacity to continue attacking, which itself is the cause of death. The separation of the soul and body (which is what death is) need not be the chosen means or the intended end. In every single case, the aggressor is incapacitated before dying, and such incapacitation is what is sought. (This is at least part of what makes Finnis’ argument about “unintentional killing” in war plausible.) Second, the child stuck in the womb is a radically different kind of threat than the rational aggressor. Third, Thomas is quick to turn the discussion to public authority, as a kind of foil. All of this is quite significant and points to an answer.

To the first point… It is true that the private citizen can’t have the death of the aggressor as a goal, meaning, death can’t be what is sought as a means or as an end. He doesn’t need to do anything to the soul-body composite as such, he only needs to do something to the body’s ability to be used as a weapon.

To the second point… A gunman in an alley is a very different sort of threat than a child growing in the womb. There seem to be two classes of threats – non-commutative, and commutative. The non-commutative threats are those which result from principles not in themselves ordered towards interacting with the outside world, viz., the operations of which are without a terminus exterior to one’s own body. These would be the material principle itself of the body (the act of existing as a body), and the augmentative and nutritive faculties of the vegetal soul. So a person falling off a cliff, or a child growing in the womb, are not acting on the outside world… Threats which proceed from the animal or rational appetites, however, are indeed acting externally. The crazed gunman who is not morally responsible and the hired hand are both trying to do something to another person, whereas the child growing in the womb is not. So perhaps different kinds of threats allow for different kinds of defense.

To the third point… Without a full exploration of the famous “self-defense” article quoted above, Thomas is eager to explain that public authority can kill intentionally – evidently meaning it can be the end of one’s act rather than just the means. (“Choice” refers to means, “intention” refers to ends – they are only equivocally applied in the inverse senses in scholastic morals.) Here’s where it gets weird.

Because the soul-body composite is its own substance (a living human being), the act of killing a person (regardless of one’s psychology) destroys that substance insofar as the world of nature is concerned. (We leave aside the interesting questions of  the survivalism vs. corruptionism debate among Catholic philosophers.) It forms a per se act – that is to say, there is nothing further which can come from this action which will be per se an effect. This is because, as I argued in my thesis, per se order exists only within the substance chosen to be acted upon. Per se effects are those effects which necessarily occur in the substance an agent acts on which come from the agent’s act itself, given the real situation of the substance. So to destroy a substance necessarily ends the per se order. At the end of per se order there is the intended effect – such as debilitation (which is only logically distinct from self-preservation and therefore is not a separate/remote/accidental effect – what it is to protect oneself simply is to remove a threat) or death. Of course, this intended effect can itself be part of a chain of intended effects which function as means with relation to some further end. If I defend myself in order to live, but I want to live for the sake of something else (like acquiring wealth), then there is a chain of intended ends which function as means. The necessary process of moral evaluation, however, is to look for the per se case of action and examine whether it is rightly ordered in itself.

We have seen with the transplant dilemma that it is wrongly ordered to damage one innocent person’s body lethally with the good aim of helping many others. The answer to the craniotomy seems to be the same… The child does not have an unjust appetite, he has a rightly ordered vegetal/material appetite which is inconvenient to others, so he may not be attacked, unless that attack also proportionately helps him and is chosen in part for that reason. (Such a case might really exist – for example, an inviable fetus is causing the womb to rupture… It’s foreseen that delivering the child will both save the mother and allow the child to live longer than he would have otherwise, even though exposure to the outside world will be the cause of his death. It certainly seems that this would be permissible given the principle of totality.) Finally, we reach the case of PLSD… There is no principle of totality at work here, even though the intended effect of self-preservation is immediately achieved with the debilitation which causes death. Rather, the normal rule of totality is indeed suspended. This is because of the kind of threat which the aggressor poses – it is a threat to the commonwealth due to a disordered external appetite.

Because “it is natural to everything to keep itself in ‘being,’ as far as possible,” and “one is more bound to take care of his own life than another’s,” it stands to reason that in a case in which there is public disorder due to the external act of a person, that person becomes the rightful recipient of correction at the hands of those whom he threatens, without his own good being a barrier to protecting the good of oneself or the community. The blows to the aggressor, we can see, actually help him – they keep him from being a bad part of society. And the private citizen’s duty is indeed to protect the commonwealth insofar as he is a part… This would include a kind of “natural delegation” to dispense with individual totality for the sake of communal totality – he is at liberty to risk the good of the one person (while, remember, he actually does something good to the aggressor by rectifying his disordered exterior act) for the sake of the commonwealth. The private defender may not try to kill the aggressor, but he may knowingly cause it with no benefit to the aggressor beyond keeping him from being harmful. Even though death is a per se effect, the defensive act is legitimate – the private defender acts like a miniature public official in this urgent situation, without psychologically taking death itself as an end.

This plugs in very nicely with Thomas’ vision of capital punishment… Stay tuned for part 2, though I’m sure a lengthy tome like this won’t be too necessary, given that a response from Dr. Feser is likely forthcoming, due in no small part to having been called out personally by Dr. Finnis.

Interesting times indeed.

Brace yourselves…

Eamonn Clark

I have recently been reading Prof. Feser’s wonderful exploration of the Church’s perennial teaching on capital punishment. That teaching is, and it always will be, that it is at least in principle a good thing and must be used judiciously and equitably, having been commended in Scripture in many ways and places, taught by the Fathers, Doctors, and Popes of the Church repeatedly, and even used quite comfortably and frequently under Blessed Pope Pius IX.

Today, the news broke that the Holy Father has decided to alter the Catechism of the Catholic Church evidently to say that the thought that the death penalty is morally legitimate is not correct. I wrote about the rumblings of this development here. Whether there is some way to square the text of the new paragraph, and its accompanying explanation, with past teaching in such a way so as not to contradict it is not at all clear at this point. However, neither is it clear that the Holy Father intended this to be a teaching ex cathedra. (The Catechism is NOT an infallible document, by the way, and makes no claim to be; it is rather an attempt at a presentation of the Church’s teaching.) But no reasonable person, who understands the teaching of the Church, can be comfortable with this utterance.

Hold on to your hats, folks. I am afraid this is going to be ugly. But don’t jump off the boat.

Three Intellectual Errors in American Leftism

Eamonn Clark

Though there are many problems one might point out in present day progressive American politics, I want to point out three particularly deep-seated intellectual vices. The misunderstandings are with respect to the following: the order of charity, experience and knowledge, and the terminus a quo/ad quem paradigm. They correspond to three key issues… the mode and structure of government, the value of so-called diversity in rational discourse, and the purpose of social institutions and roles especially in relation to sex and gender.

First, the order of charity. One of the great principles of Catholic social teaching is subsidiarity, which is the preference to defer to the more local government to provide for a constituent’s needs. The chain goes something like this: individual – family – town – county – state – nation – world. To know the needs of many individuals belongs to the governor of the family, to know the needs of many families belongs to the governor of the town, and so on. It is easy to see that as we ascend the ladder the task of governance becomes increasingly complicated, as it involves increasingly many parts. This proves the need for an order of governance in the first place, as it would be unthinkable for the king of a large country to govern each town directly, not only because of the amount of time and energy such micromanagement would take but also because of the diverse needs and situations of each town which are understood best by those who actually live there. The king is only in a position to know the affairs which affect the whole country, where its largest parts are concerned in their relations with each other. Thus, subsidiarity. The more that can be delegated to smaller governments, the better. The value of this principle is taught by some of the harshest lessons of world history… When the emperor gets too powerful there is trouble ahead both for him and for his empire.

But what about the relationships as they go up the chain rather than down it, or even those relationships at the same level? For example, what should characterize the individual’s actions vis-a-vis the family, or the state, or the world? How should families or counties or nations interact with each other? Of course, the lower owes care and respect to the higher and ought to be willing to make appropriate sacrifices for the good of the whole of which he is a part, with a greater kind of love given according to the dignity of the political body. However, this good will, or charity (ideally), follows an order, just like the governance to which it relates. Because we are creatures, we can only love in concrete practice up to a certain point, and our acts of love therefore should be patterned on our proximity – physical or otherwise – to the object of that love. Just as good parents care for their own children more than their next door neighbors’ children, they would also care more about their own town than a different town, because it is their own town which is most immediately able to care for them. Furthermore, they would be more ready to sacrifice for their town than for their county, state, or nation, not because they don’t have a greater kind of love for the larger body (i.e. the nation) according to its dignity but because that body is more remote. Finally, they will exercise more diligence and care toward families in their own town or neighborhood, as they have more interest in common with each other and are more able to look out for each other precisely because they are parts of the same small community. Such care is a legitimate application of the principle of solidarity… To be in real solidarity involves real proximity, of geography, blood ties, virtues, or even goals, and that proximity also tends to give a better understanding of the situation. This is why voluntourism is generally bad, or at least not as good as it feels: it ignores the needs of one’s close neighbors to go save people far away, and it does little to no help in the end, possibly even making things worse. The Western obsession with “saving Africa” is one example of this.

This should reveal at least one major problem with two key progressive agenda items: socialism and globalism. It is simply not possible to take care of everyone by centralizing government more and making it bigger (including by weakening or removing borders). We have a duty to look after those who are more closely united with us – and so long as we are flesh and blood, occupying physical space and belonging naturally to families, there will exist this natural order of government – and charity. We are bound to love our neighbor, but we are certainly bound to love some neighbors more than others. (See Gal. 6:10, 1 Tim. 5:8, etc.)

Second, experience and knowledge. It has become an all-too-familiar rhetorical move: you don’t share my experience, therefore your position is automatically irrelevant. “How can you, a man, dictate sensible policy on abortion? You don’t know what pregnancy is like!” This kind of thinking pervades public discourse in debates on race, gender-theory, guns… It even exists in the Church. How much do we really need to “discern with” and “listen to” various people or groups in order to understand the moral and doctrinal issues at stake? Certainly, nobody is saying that acquiring knowledge of particulars is bad or even unhelpful for dealing with those particulars themselves – indeed, it is vital, as Gregory speaks about at length in the Pastoral Rule – but once the general principles are known, especially through the authority of revelation, there is no need to go on studying particulars to learn those principles. If some people want to be “accompanied” a certain way, at odds with right morals or doctrine, then it is they who need reform, not the principles. It is they who need to work to build the bridge. Thus, the first public words of the Lord were not “what do you think” or “how are you feeling,” but rather, “repent” and “believe.”

What, then, is the value of experience? It is the collection of memories which can be applied to work for a desired end through abstracting the universal principles at work. Experience can contribute to making a person more prudent if he pays attention and has a good memory, but it does not necessarily give someone all the knowledge required to make a good decision about how to reach the goal, nor does it necessarily tell a person what ends are best to seek at all. Likewise, empathy with suffering groups, which provides a kind of substitute-experience, does not give the right means or ends either. It can actually be quite blinding. For example, perhaps you feel terribly for victims of drunk driving – but you have to look at whether outlawing alcohol would result in damage far worse than the damage avoided. Everyone you govern must be considered fairly. (See above about subsidiarity!) The wisdom that comes from suffering borne well is a spiritual kind of wisdom, a sort of perspective on one’s own life and meaning, and typically that is its limit. Being a resident of a war-torn country does not make a person an expert on foreign policy, it makes him an expert at hiding from bombs and bullets. If the same person also studied international politics at university and served for decades in his nation’s diplomatic corps, these would be of greater value for prudential decision-making about foreign policy, as they both communicate more information about the relevant matters. Perhaps his experience of hiding from air raids helps to contextualize what he is learning, or helps to remind him of how important certain consequences are, but simply having experienced the wrong end of a war does not make him a good politician.

Knowledge can be gained without experience of the things learned about. This principle is easily proven by the very existence of education: we believe that we can give people information through communicating information. It is left to the individual to organize that information and make a judgment, right or wrong. Thus, a priest who has studied the Pastoral Rule, for instance, is in a much better position to preach and rule well than if he had not studied it, ceteris paribus. If experience is the sole criterion for knowledge, we would face epistemic anarchy: no two people have the exact same experience of anything, and therefore there could never be any common body of knowledge. To rectify this, there is a theory of group-based experience, codified in the doctrine of “intersectionality.” Because minorities (and women) are necessarily victims, and the victim-narrative must always be believed, the number of victim-classes to which one belongs gives greater primacy to their claims and demands. So goes the theory. But if intersectionality defines knowledge, then we should only need to find the few Black, homosexual, transgender-woman, overweight, Muslim immigrants and let them run our lives, since they are practically demigods given their high intersectionality. And even within such an elite group, there would be divisions – some grew up poor, others did not. Some have genetic diseases, some do not. Etc. And so intersectionality is also a kind of compartmentalization which tends toward epistemic anarchy. The truth is that we are not only animals, we are rational animals; we are capable of learning without experiencing, and therefore we can generally see what is good and right in public policy without having been in the exact circumstance of those to whom any given piece of legislation applies, provided we are actually informed of how that policy will affect people and be enforced (subsidiarity!)… But we don’t need to take subsidiarity so far that we actually must be part of the racial, gender, “whatever” group over which we exercise authority.

Third, the terminus a quo/ad quem paradigm. The terminus a quo is the “point from which” one goes. It stands in relation to the “terminus ad quem,” the “point to which” one goes. It behooves a person who wants “progress” to say exactly where that progress leads to, and where it stops. Not only has there been deep confusion about where exactly some kinds of “progress” are heading, but also no principled way to determine when that progress ought to stop and be conserved. Some slopes are slippery indeed.

Today’s conservatives are yesterday’s liberals, especially with regard to gender-theory and its related issues. If you need proof, well, there is an endless supply, but try this one on for size. (Yes, really, click the link. If that doesn’t drop your jaw, nothing will.) What is the endgame? What is it really all about? How far can we “progress”? Of course, the goalposts keep moving. First, mere social tolerance is the only request. Then, once acquired, it is a small legal concession here or there, nothing big. Then, the redefinition of a social institution protected by law – but surely, this is the last step… Except then it becomes domination in schools, in the workplace, in the culture at large: indoctrination of the youth, forced service to same-sex weddings, and constant positive portrayal and exposure in the media. And now that the homosexual lobby is quickly running out of room, the momentum has carried into transgender rights.

But at this point I want to ask about these intermediate steps, which, for some basically sincere people, really are seen as the “end,” the terminus ad quem. That step is the the redefinition of social institutions or roles, such as same-sex marriage on the homosexual agenda and right around “bathroom bills” on the transgender front. There is a distinct problem of intentionality for each with regard to their understanding of their terminus ad quem as such.

Everyone has heard the comparison between the civil rights battle of the 1950’s and the present-day struggle for so-called “gay rights.” There is an oppressed group which only wants equal treatment and protection under the law. Just like Blacks couldn’t use the White schools or water fountains or any number of products and services, so gays don’t (didn’t) have access to marriage, because it is limited to the heterosexuals. Because marriage is so important in public life and personally desirable for so many reasons, it is equivalent to the desire for education, transportation, etc., wherein Blacks were discriminated against. Therefore, the two movements are basically analogous.

The problem with this argument is with regard to the terminus a quo/ad quem relationship. Under Jim Crow, goods and services that were equally desirable to both Whites and Blacks were apportioned unequally and unfairly. It was unfair because it put Blacks and Whites on fundamentally different levels of human dignity, when the reality is that race does not determine basic human nature. In other words, Blacks and Whites share the same terminus a quo, since they are fundamentally equal as human beings with the same desires and therefore deserve basic equality of opportunity, but they were treated as having different termini a quo. Because they share identical desires, such as good schools, a seat on the bus, and so on, their desires themselves have an identical terminus ad quem. To sum up, Blacks were given a different terminus ad quem because it was thought they had a different terminus a quo when in reality they did not. The civil rights movement sought the right to the same terminus ad quem by trying to show the Black terminus a quo was the same as the White terminus a quo.

This is (was) not the case with the push for same-sex marriage. Here, the terminus a quo is assumed to be the same by the government, and the terminus ad quem (marriage) is available to all. There is already equality of opportunity – it’s just that the desire of homosexuals is not the terminus ad quem which was equally available. Instead of pushing to be able to use the White water fountain, this was a push to create a Black water fountain because the water from the White fountain tastes bad to some.

Consider again: in no country ever in world history were homosexuals categorically barred from marriage. It is that they typically don’t desire the “kind” of marriage available. Instead, a new kind of marriage needs to be created to suit their desires – a different terminus ad quem altogether, just with the same name. The terminus a quo is different too, not because homosexuals and heterosexuals differ in fundamental human dignity, but because the desires which define these two categories are unequally useful to the commonwealth in which they seek to be fulfilled. Unlike schools or water fountains, marriage has not historically been treated as a good or service consumed, it has been treated as an office from which services and goods are provided to the community, namely, children and care for children. Even if same-sex couples were generally able to provide equally well for adopted or surrogate children as a child’s natural parents, which seems quite obviously incorrect for several reasons, they would still be at an unequal public dignity because they need help bringing children into existence. A man and a woman do not, generally speaking, need help procreating. And because of the clear good of parents staying together, having kids, and treating those kids well, the government is right to incentivize a lifelong commitment to a monogamous heterosexual relationship with certain public benefits which are not due to even the most committed homosexual relationships. The tendency to produce children is why there is such a thing as marriage in the first place (to protect, educate, and nurture children in a balanced and stable environment), and kids are also the primary reason the government should be interested in marriage at all, as they are the future of the commonwealth. It is especially dangerous when many fatherless young men are gathered together – this is how and why gangs form in cities… the kingpin is the replacement for the father.

We could map this same twist of the terminus a quo/ad quem dynamic onto some other public function or office of nature, such as the military. Just as every society needs marriage, it also needs a military, and so there should be certain incentives or “perks” that come with taking up arms as a soldier. But what if I want those same benefits, but without joining the current version of the military? Suppose I too am patriotic, own a gun, dislike terrorists, and sometimes wear camouflage. Shouldn’t I too have equal access to the military? I do, of course – I could go sign up at any moment – but I want to do it my own way, because I don’t desire to go to the desert or live on a base. Shouldn’t military rights be extended to me, too?

Anyone can see that this is the same line of reasoning as the same-sex marriage argument, and anyone can see also that it is a patently absurd argument.

But there is a different kind of absurdity at work in the transgender activism of today… What is the terminus ad quem of a gender transition – or even of the activism in general? If gender is a social construct, as it is so often claimed today, what is the value of changing the body? Cross-dressing or surgery would make sense if one’s real gender were something inherent to the person. So is the terminus ad quem simply to be treated a certain way by other people according to the superficial notions of male and female? If gender is a social construct, then there is no “noumenal” change, it is only a “phenomenon” which changes – that is, there is only and can only ever be a change in perception rather than any objective reality in the person or the body called “gender.” This seems contradicted by the advent of the big step in transgender activism, which is, like the gay agenda, compulsion. In this case it is even worse, because it is more arbitrary. If gender were only a social construct, looking and acting sufficiently “male” or “female” would suffice, but because the meaning of those terms is sliding away into oblivion, like “marriage,” the “appropriate” way to treat a person is based solely on that person’s desire to be treated a certain way. Because there is no objective reality “male” or “female,” and either it is consistently impossible or irrelevant for transgender people to look and act sufficiently like the paragon for “male” or “female” because of their biological sex, before or after surgery, it may be necessary simply to force people to use certain pronouns that they would not normally use.

Not to do so would be “violence,” because it causes depression and social isolation which can lead to self-harm or harassment. Therefore, speech at odds with my own desire to be called “he” “she” “zhe” or whatever, to refuse me the use of any bathroom or locker room I want, to disallow me to put on my official documents whichever of an ever-growing list of genders I determine, is punishable by law… Bad, right? It’s happening in Canada already with the infamous Bill C-16. Except we are not looking at all the harm this can cause, we are looking at the terminus ad quem. What has a trans-man or trans-woman actually become? Surely, they would say a “man” or “woman,” full stop. (Never mind that this is already causing problems – for example, does a trans-woman count as a man or as a woman for the purposes of any kind of affirmative action slanted towards women? Or take the example in the link above about the “transphobia” of RuPaul!) If gender is a social construct, a gender transition is to create a perception of a person as a member of a certain gender category. But since that category is completely based on perception, in what does the transition actually consist? What is actually being changed? And if it is all about my desires anyway, wouldn’t it be easier to change my desire to match with people’s seemingly entirely empty and baseless perception rather than the other way around? If “man” and “woman” don’t really mean anything objective anyway, then why would one even want to be called or treated as one or the other? What is the motivation to depart from the terminus a quo? It seems to be a comically extreme exercise in vanity…

Hopefully I have hammered home the point. The terminus ad quem of gender transitions and the activism surrounding it is unclear at best. And where the movement in general will end is anyone’s guess, but compelled speech is likely involved. After that point, my guess is trans-humanism will be next, especially given the rapid advances being made with the ongoing development of CRISPR.

Of course, the truth is that gender dysphoria and its accompanying behavior constitute a tragic mental illness and symptoms of that illness. The desire to “become a man” or to “become a woman” is based on a fetish with the biological reality of the opposite sex and the social realities based upon it, or some similar unfortunate disposition of the mind. Something approximately the same could be said of same-sex attraction.

These three points understood rightly – the order of charity, experience in relation to knowledge, and the terminus a quo/ad quem paradigm – give us a fitting lens through which to look at mainstream American (and broader Western) politics. The ideas are firmly rooted in the Christian intellectual tradition and help to make very useful distinctions. Hopefully they can assist you in forming your own opinions and in having your own discussions. Let me know what you think in the comments – but play nice!