I never take joy in the suffering of others, even when that suffering is deserved.
But . . . sometimes . . . I allow myself a hearty nod of approval when someone is given the gift of logical consequences:
Paper Mill Ghostwriter Loses His Law License
Showing posts with label law. Show all posts
Showing posts with label law. Show all posts
Thursday, April 14, 2011
Wednesday, February 06, 2008
Books in Review
Joseph Amato's Victims and Values: A History and a Theory of Suffering has been a frustrating book to read.
It was frustrating primarily because I was desperately interested in an excellent treatment of his thesis: that the modern conception of and pursuit of justice is impoverished by its dependence on an inadequate understanding of the relationship between suffering and justice. Amato's treatment certainly raised issues, but without the sort of care and discretion that one must adopt when preparing to slaughter sacred cows.
Amato rightly (I believe) diagnoses certain problems with socio-political discourse in the US. The public discussion of justice, where it occurs, has become "a game of pick your victim," as Eugene Weber says in the intro to the book. Injustice and suffering--whether historical or actual, present or potential, rightly or wrongly perceived--are understood to create a debt which the public must honor. Indeed, virtually any kind of suffering is at least potentially the business of the state, whether as arbiter of competing claims to remediation (as in tort law), the administrator of whatever recompense is owed (as in welfare or medicaid), or the party ultimately responsible for inflicting suffering (as in our history of racial injustice).
Amato traces, with varying precision and insight, the historical development of this way of approaching the relationship between suffering and justice. At times, the story he is trying to tell gets lost in the details, but his point is primarily genealogical. It is not "natural" or inevitable to respond to reports of suffering the way we tend to do in the US today. We are the heirs of a philosophical sea-change that began, really, with Bacon, but since Amato is not particularly interested in medicine, he names other Enlightenment figures as the primary actors. Bentham is the obvious front-man: his articulation of utilitarian rationalism changed the way even non-utilitarians approach discussions of justice and suffering.
Unfortunately, when Amato moves from the historical to the contemporary, his argumentation fails. Or, rather, he fails to draw on the data in a way that would convince any that don't already agree with him. He relies on generalities and broadsides, abandoning his earlier practice of relying on texts.
(Reading society, as he purports to do in his final chapters, is both easier and more difficult than reading texts. One has fewer restraints on the interpretations one may advance; on the other hand, one's opponents are similarly unconstrained.)
Yet the questions he raises, particularly in chapter 8, are spot on. The relationship between suffering and recompense, dessert and justice, remuneration and retribution, is one that begs to be investigated. Public policy tends to act on too hazy an understanding of how suffering and justice are related generally and in a particular policy or law. How, for example, is Affirmative Action related to Jim Crow or slavery? More generally, what is the relationship between a people's historic suffering and an individual's demand for justice? What is justice, when the injustice has been so vast as to be irremediable and unforgivable?
These questions are urgent and immediate. Unfortunately, I doubt anyone given to rely on the modern understanding of suffering--that it gives me a claim to innocence, a moral vantage from which to demand something, a right to force others to attend to my perceived needs--is going to find Amato's book anything like persuasive.
It was frustrating primarily because I was desperately interested in an excellent treatment of his thesis: that the modern conception of and pursuit of justice is impoverished by its dependence on an inadequate understanding of the relationship between suffering and justice. Amato's treatment certainly raised issues, but without the sort of care and discretion that one must adopt when preparing to slaughter sacred cows.
Amato rightly (I believe) diagnoses certain problems with socio-political discourse in the US. The public discussion of justice, where it occurs, has become "a game of pick your victim," as Eugene Weber says in the intro to the book. Injustice and suffering--whether historical or actual, present or potential, rightly or wrongly perceived--are understood to create a debt which the public must honor. Indeed, virtually any kind of suffering is at least potentially the business of the state, whether as arbiter of competing claims to remediation (as in tort law), the administrator of whatever recompense is owed (as in welfare or medicaid), or the party ultimately responsible for inflicting suffering (as in our history of racial injustice).
Amato traces, with varying precision and insight, the historical development of this way of approaching the relationship between suffering and justice. At times, the story he is trying to tell gets lost in the details, but his point is primarily genealogical. It is not "natural" or inevitable to respond to reports of suffering the way we tend to do in the US today. We are the heirs of a philosophical sea-change that began, really, with Bacon, but since Amato is not particularly interested in medicine, he names other Enlightenment figures as the primary actors. Bentham is the obvious front-man: his articulation of utilitarian rationalism changed the way even non-utilitarians approach discussions of justice and suffering.
Unfortunately, when Amato moves from the historical to the contemporary, his argumentation fails. Or, rather, he fails to draw on the data in a way that would convince any that don't already agree with him. He relies on generalities and broadsides, abandoning his earlier practice of relying on texts.
(Reading society, as he purports to do in his final chapters, is both easier and more difficult than reading texts. One has fewer restraints on the interpretations one may advance; on the other hand, one's opponents are similarly unconstrained.)
Yet the questions he raises, particularly in chapter 8, are spot on. The relationship between suffering and recompense, dessert and justice, remuneration and retribution, is one that begs to be investigated. Public policy tends to act on too hazy an understanding of how suffering and justice are related generally and in a particular policy or law. How, for example, is Affirmative Action related to Jim Crow or slavery? More generally, what is the relationship between a people's historic suffering and an individual's demand for justice? What is justice, when the injustice has been so vast as to be irremediable and unforgivable?
These questions are urgent and immediate. Unfortunately, I doubt anyone given to rely on the modern understanding of suffering--that it gives me a claim to innocence, a moral vantage from which to demand something, a right to force others to attend to my perceived needs--is going to find Amato's book anything like persuasive.
Thursday, October 18, 2007
Professional Ethics?
I am watching this judicial showdown with great interest.
First of all, by one reading, I, too, belong to a professional organization (i.e., The United Methodist Church) that has its own professional licensing procedures (The Board of Ordained Ministry). Although my organization's professional licensing procedures are not in any sense overseen, supervised by, or practiced at the mandate of any federal or state legislation, there is at least one major circumstance in which my authorization as a pastor is linked to my authorization to provide a legal service: that is, marriage.
What if my professional organization's licensing procedures were in conflict with the state's guidelines concerning the practice of performing marriages? This could potentially come up, given that my professional organization currently forbids its members to officiate at weddings that are considered legal in some states. I am not aware of any cases where my professional organization has exercised its authority in this matter (the UMC is not exactly known for its episcopal backbone), but what if it did? Would the state recognize the right of a professional organization to set its own ethics, even to the inconvenience of the state or its citizens?
This problem is much more acute in the case of medical practitioners whose ethics conflict with the state's interest in carrying out its business. And the scalpel cuts both ways, politically speaking: at present, doctors are permitted to refuse to perform or refer for procedures or treatments to which they have a moral objection, even where state law has recognized access to those procedures and treatments as a civil right. Generally speaking, those who would be in support of the Medical Board's attempt to do an end run around the law with regard to the death penalty tend to be highly critical of practitioners' attempts to do an end run around the law with regard to abortion and certain forms of birth control.
I'm very, very curious to see how it will play out.
First of all, by one reading, I, too, belong to a professional organization (i.e., The United Methodist Church) that has its own professional licensing procedures (The Board of Ordained Ministry). Although my organization's professional licensing procedures are not in any sense overseen, supervised by, or practiced at the mandate of any federal or state legislation, there is at least one major circumstance in which my authorization as a pastor is linked to my authorization to provide a legal service: that is, marriage.
What if my professional organization's licensing procedures were in conflict with the state's guidelines concerning the practice of performing marriages? This could potentially come up, given that my professional organization currently forbids its members to officiate at weddings that are considered legal in some states. I am not aware of any cases where my professional organization has exercised its authority in this matter (the UMC is not exactly known for its episcopal backbone), but what if it did? Would the state recognize the right of a professional organization to set its own ethics, even to the inconvenience of the state or its citizens?
This problem is much more acute in the case of medical practitioners whose ethics conflict with the state's interest in carrying out its business. And the scalpel cuts both ways, politically speaking: at present, doctors are permitted to refuse to perform or refer for procedures or treatments to which they have a moral objection, even where state law has recognized access to those procedures and treatments as a civil right. Generally speaking, those who would be in support of the Medical Board's attempt to do an end run around the law with regard to the death penalty tend to be highly critical of practitioners' attempts to do an end run around the law with regard to abortion and certain forms of birth control.
I'm very, very curious to see how it will play out.
Wednesday, August 08, 2007
Terminal Does Not Equal Disposable
A federal appeals court decided yesterday that terminally ill patients do not have a constitutional right to access highly experimental treatments for their (terminal) conditions, following a longstanding tradition among bioethicists that refuses to see terminally ill patients as disposable.
(Yahoo article here)
While a dissenting judge was appalled at the court's apparent willingness to interfere in what she considered a private choice to pursue life at all costs, I think the writer of the majority opinion and the FDA spokesperson who commented on the decision had the better view of the status, if you will, of terminally ill patients.
The FDA spokesperson was quoted as saying that the decision appropriately balanced the needs for public safety and access to as yet unproven treatments. In her view, then, the terminally ill patient is still a member of the public whose safety the FDA was founded to protect. Like all other patients, the terminally ill patient can be taken advantage of by researchers (whether unscrupulous or merely overoptimistic) and can be harmed by lack of proper scientific knowledge. Their desperate circumstances must not be seen as an excuse to forgo the normal protections and safeguards which are given to the general public (even if the same circumstances lead them to wish to forgo those protections themselves).
The writer of the majority opinion implied the same valuation of the terminally ill patient--their deaths could be hastened by an unapproved treatment, and that premature death would be as much a tragedy as if it were a non-terminal patient.
While the desire to extend every possible opportunity for a terminally ill person to be healed is laudable, it often goes along with a more sinister (and usually unarticulated) re-valuation of the place of the terminally ill person in society. Virtually every time it is proposed that rules, procedures, standards, and policies be different for the terminally ill patient, the difference is intended to mark a separation of the dying patient from the general public, even when the differences are intended to benefit the dying patient. These special policies and procedures proclaim, "The dying person is a different kind of person. The normal rules don't apply."
If this breaking of the "normal rules" meant an increased participation in the life of the community (as in some monastic orders, where the community rushes to the bedside of the dying brother or sister to be with him or her in death, even if it means that the liturgical practices of the community are interrupted), I would be for it.
But it never does, does it?
(Yahoo article here)
While a dissenting judge was appalled at the court's apparent willingness to interfere in what she considered a private choice to pursue life at all costs, I think the writer of the majority opinion and the FDA spokesperson who commented on the decision had the better view of the status, if you will, of terminally ill patients.
The FDA spokesperson was quoted as saying that the decision appropriately balanced the needs for public safety and access to as yet unproven treatments. In her view, then, the terminally ill patient is still a member of the public whose safety the FDA was founded to protect. Like all other patients, the terminally ill patient can be taken advantage of by researchers (whether unscrupulous or merely overoptimistic) and can be harmed by lack of proper scientific knowledge. Their desperate circumstances must not be seen as an excuse to forgo the normal protections and safeguards which are given to the general public (even if the same circumstances lead them to wish to forgo those protections themselves).
The writer of the majority opinion implied the same valuation of the terminally ill patient--their deaths could be hastened by an unapproved treatment, and that premature death would be as much a tragedy as if it were a non-terminal patient.
While the desire to extend every possible opportunity for a terminally ill person to be healed is laudable, it often goes along with a more sinister (and usually unarticulated) re-valuation of the place of the terminally ill person in society. Virtually every time it is proposed that rules, procedures, standards, and policies be different for the terminally ill patient, the difference is intended to mark a separation of the dying patient from the general public, even when the differences are intended to benefit the dying patient. These special policies and procedures proclaim, "The dying person is a different kind of person. The normal rules don't apply."
If this breaking of the "normal rules" meant an increased participation in the life of the community (as in some monastic orders, where the community rushes to the bedside of the dying brother or sister to be with him or her in death, even if it means that the liturgical practices of the community are interrupted), I would be for it.
But it never does, does it?
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