Editorial: Euthanasia, democracy and public policy – lessons from the abolition of capital punishment
When capital punishment was finally abolished in 1961 (see article in this issue), the abolitionist cause represented a minority view in New Zealand; fewer than one-third of people supported it. As Leon Gotz proclaimed: “In demanding the punishment for these vile crimes should be the forfeiture of the offender’s lives, I am expressing the opinion of the majority of New Zealand.”1
Robert Muldoon was one of ten National MPs to cross the floor and support abolition. At the time he acknowledged: “Abolishing capital punishment was contrary to popular opinion and the majority of people in New Zealand are not ready to accept it. However, Parliament should give a lead to public opinion.”2
Controversial issues such as capital punishment, and in our time euthanasia and assisted suicide (EAS), give us pause to reflect on the nature of democracy and, specifically, the role of MPs in shaping public policy. Gotz and Muldoon represent two very different approaches to understanding the nature of parliamentary leadership: (i) following closely the opinion of the public and voting according to popular opinion (taking the lead from one’s constituents) and (ii) voting according to one’s carefully formed and well researched views, taking account of but not being swayed by the opinion of the majority while being willing to vote against public opinion if one’s conscience dictates.
Put simply, the latter approach is premised on a belief that the formation of public policy should not be reduced to measuring public opinion. To paraphrase Muldoon: there are times when MPs should give a lead to public opinion. In a democracy such as ours, where 64 out of the 120 seats are electorate seats, this second approach to leadership is potentially costly at election time and will, therefore, demand of our MPs a high level of personal integrity and courage.
Reflection on the issues and challenges that MPs faced when dealing with the issue of capital punishment generates valuable insights for the current debate about EAS.
- Proponents of EAS repeatedly appeal to public opinion as a reason for changing the law. Their assumption is that majority public opinion is enough to determine public policy. In 1956, the Prime Minister Rt Hon Sydney Holland proposed that the issue of capital punishment be submitted to a referendum as a solution to the continued politicisation of the issue: “let us trust the people … Let us take it out of the hurly-burly of politics”. In response, Labour argued strenuously that capital punishment should be left to parliamentary responsibility; the issue was too complex and required dispassionate consideration. Many argued a referendum was inappropriate because emotions could be stirred up by a particularly brutal or nasty crime just before a referendum creating a serious bias. In a similar way, presentation of the high-profile, difficult cases can generate emotions that obscure people’s ability to take full account of the broader questions relating to the legalising of EAS.
- As was the case with capital punishment, media presentation of the issues surrounding EAS shows a distinct bias towards legalisation. Just as particular crimes became a focus for those arguing against abolition, so the media stories surrounding EAS have mostly focused on the single, emotive cases. For a more balanced and robust discussion to happen, there needs to be a deeper and more balanced exploration of the likely effects on society as a whole. The Justice Department report on capital punishment finally argued a ‘moral’ case against the death penalty; that on balance respect for human life was best protected when the law forbade it. The same argument can be made about EAS.
- The reinstatement of the death penalty in 1950 meant that the effects on those involved in the hangings began to be noticed; for many the impact was significant, taking an emotional and physical toll. These side effects were not necessarily immediate. Likewise, when considering the case for EAS, we must take into account the impact on those who would have to facilitate it, including the negative effects it would have on the medical profession and the doctor-patient relationship.
- Many MPs were persuaded by the fact that if the justice system was subsequently discovered to have wrongly convicted someone, there could be no going back. In New Zealand we now know that at least one innocent person would have been hanged if capital punishment had not been abolished - Arthur Allan Thomas who was convicted of murder in 1971 but received a Royal Pardon in 1979. With EAS there is a high possibility that a diagnosis and/or prognosis will be wrong. The argument that one innocent life lost is sufficient to justify the abolition of capital punishment is even more relevant to the euthanasia debate because of the risk of large numbers of lives being prematurely ended.
We hope that the Health Select Committee investigation into EAS enables the sort of robust debate and parliamentary leadership that was exemplified by the MPs who dealt with capital punishment.
Dr John Kleinsman is the director of The Nathaniel Centre and Sue Buckley is a researcher at The Nathaniel Centre.
The abolition of Capital Punishment in New Zealand
Staff of The Nathaniel Centre
Capital Punishment and euthanasia have the manifest similarity that both concern the deliberate and state-sanctioned ending of life, which is why both also, quite rightly, are controversial issues. While the euthanasia debate is still current and appears in the media on a regular basis, Capital Punishment was finally abolished in New Zealand in 1961. The question this article raises is what we might learn from the way in which Capital Punishment was abolished that might enlighten the current euthanasia debate.
Much of the following history is drawn from a comprehensive study by Pauline Engel published in 1977, which tells the story of the abolition of Capital Punishment in New Zealand.
Abolition of Capital Punishment
There had been little questioning of Capital Punishment in New Zealand before the 1920s, and it was not until the election of the first Labour government in 1935 that the issue became political. The Labour Party was officially opposed to the death penalty and while the Labour Government did not immediately introduce legislation to abolish the death penalty it commuted all death sentences while in office.[a]
However, criticisms soon arose concerning judges sentencing people to hang while knowing it would not be carried out, leading to the government being accused of 'circumventing' the law. Then in 1940, a particularly brutal crime led to four men being sentenced to flogging. While the humanitarian elements in the Party found it unthinkable that such a sentence should be carried out, the Attorney-General was reluctant to remit the sentences without bringing forward legislation which he felt would have to cover both corporal and Capital Punishment. That an appeal against the severity of the sentence failed at the time is described by Engel as an indication of the adversity of the climate for abolition at this stage. However, with the caucus overwhelmingly in favour of a law change, a Bill was eventually introduced for the erasure of both flogging and hanging from the penal code.
Engel notes 'the reaction of the newspapers was almost universally unfavourable'[1] and that 'almost every provincial daily pontificated in its editorial columns on the government's action in removing Capital Punishment and corporal punishment from the Statute Book, and scarcely any were complimentary'[2]. Nevertheless, the Bill was passed entirely along Party lines, with no Government members speaking in favour of Capital Punishment and no Opposition members speaking in favour of abolition. Engel describes the debate as 'neither lengthy nor distinguished for anything save the incredible bathos of speakers on both sides of the House'[3]. While most arguments against abolition focused on the deterrent value of Capital Punishment, one of the arguments against was that it could mean 'the menfolk might have to take the law into their own hands'[4].
Reintroduction of Capital Punishment
When the National Government came to power in 1949, there was immediately pressure to repeal. Engel suggests that the restoration of the death penalty by this Government in 1950 was not simply a matter of a more conservative, authoritarian government favouring Capital Punishment, but a more complex interweaving of social and political factors. There had been relatively few murders during Labour's first six years in office, but the murder rate had increased in the post-war years, culminating in the 'notorious Mt Victoria murder which appalled the Wellington community in 1948'[5]. Grand juries throughout the country had been calling for the reinstatement of the death penalty and popular sentiment was in favour of it; it was widely held that the increase in murders was a direct consequence of abolition.
Although the Minister of Justice had called for a 'comprehensive report which would include statistics, philosophical and religious arguments for both sides of the case'[6], Clifton Webb, the Attorney-General, made it clear that Capital Punishment would be reinstated without waiting for the contents of the report. In the debate on the Bill to reinstate Capital Punishment, Webb focused on the deterrence argument while H.G.R. Mason, the former Minister of Justice, concentrated on the moral aspects, rejecting the argument that hanging was necessary for the protection of women and suggesting that the move back to a retributive justice was a 'spiritual and moral relapse'. The Bill passed with members voting on Party lines, except for J. R. Hanan, the lone National Government member to speak against the Bill.
Nevertheless, when within a few months the Executive was faced with its first death sentence, it appeared anxious to find a reason for a reprieve. Fortunately for the government, the reports on the case suggested the prisoner's mental development was at a level to suggest he was not fully responsible. However, public reaction and the media suggested that 'if ever there was a case for hanging this is it'[7], and the government was roundly accused of having 'cold feet'. When the next death sentence was imposed, 'the Executive could not risk a second retreat'[8], even though it was clear that this case actually presented a weaker argument for execution. Commenting on this second case, one newspaper argued that while the prisoner was 'obviously a man of subnormal mentality', this was no reason that 'such an individual should survive as a burden on society'[9].
Over the next five years there were another seven executions as well as a number of reprieves, and Engel suggests it was often difficult to understand why, when murder cases were compared, some were not reprieved. In one case of a young man described as a 'bodgie'[b], tried and later executed for murder, the decision of the Executive to execute was considered to be influenced by reports that the 'bodgie lifestyle was an idle, violent and promiscuous one'[10] and that it was necessary to make an example of this young man. Organised opposition to the death penalty over this time led to the development of a National Committee in 1956, partly as a consequence of one particular case where the prisoner's 'childish qualities and his socially deprived background'[11] highlighted the inconsistencies around the reprieval decision-making process . Around the same time, a "Truth" article appeared, describing an execution in detail, ostensibly for the purpose of promoting the deterrent aspects of hanging, but having an ulterior motive of conveying to the public 'the sordid reality of hanging and to indicate the effect it had on many of those responsible for carrying it out'[12]. The final paragraph of the article stated:
'Criticism of the method is not an argument against Capital Punishment. Murderers may deserve to die. It may be that the prospect of death does deter would-be murderers. What happens to them does not matter; what can happen to the people who have to hang them does.'[13]
Effects of hanging on those involved
It was commonly claimed that the older prison officers who had been involved in and experienced hangings saw their participation as part of their duty; a duty which, while unpleasant, did not affect them deeply. One of these described himself and his generation of officers as having 'lived through the depression, seen active service overseas for some years during the last war, and been in German prison of war camps', experiences that 'toughened the spirit as well as the flesh'[14]. In particular, Engel notes that 'they did not become emotionally involved in the execution process because they did not feel responsible for the decision which had been made to hang that particular person, although their professional position obliged them to carry out that decision. They did not feel that they were "inhumane" or "hardened", any more than a nurse or doctor who had become inured to much unpleasantness which would make the average lay person squeamish.'[15]
However, while these officers were reportedly able to carry out their duty without too many after-effects, even if it took the experiences of a depression, war service and prison of war camps to achieve this, Engels notes that for the 'lay' officials the story was quite different; for at least some people, including sheriffs, prison psychologists, chaplains, and the prison Superintendent, the hangings had serious psychosomatic effects.
The first two sheriffs had breakdowns, due at least partly to their participating in executions; the prison doctor threatened to resign rather than participate in further executions; the prison psychologist wrote that his own feeling was one of 'complete revulsion' and that as he left the execution yard, felt that the hanged man was 'the only actor in the drama who came out of it clean'[16]. The prison chaplain was infected 'with a peculiar horror so that he felt an almost irresistible urge to get as far away from the prison as possible at the time of a hanging – something he was rarely able to achieve'[17]. The Superintendent of Mount Eden Prison had officiated in eight executions and although he was described 'as rough as guts, as tough as they come', resorted to drinking to get through the hangings and eventually suffered a major psychological breakdown[18].
Public referendum
From the mid-fifties, there was an increase in activity from the abolitionist movement and a referendum was proposed. This was opposed by some abolitionists on the grounds that the issue was too 'volatile' and too complex for a straight yes or no answer. J.R. Hanan and E.P. Aderman, the known abolitionists in government, and J.R. Marshall, a strong supporter of Capital Punishment, all supported a referendum, both sides thinking the public supported them. The two Wellington daily newspapers opposed a referendum, the Evening Post stating the question was 'not a subject for a decision by mass vote' and it would be 'wrong, clumsy and unsuitable' because many would wish to qualify their answers. The Dominion suggested that to conduct a referendum on any issue subject to emotion was bad policy: 'Impassioned appeals by abolitionists could stir up a fever far beyond the merits of their arguments. Similarly, a particularly fiendish or callous crime just before the poll could cause a public revulsion much stronger than the merits of the case for retention'[19]. These sentiments, along with letters to local papers and submissions to Government led to the Prime Minister calling off a referendum. It would, if re-elected, legislate to provide the death penalty for 'the worst cases of murder' only[20].
Engel argues that a referendum would have without doubt supported Capital Punishment. 'Public opinion polls, except in Scandinavian countries, were consistently in favour of the death penalty' and in 1969 a United Kingdom survey reported that 'a substantial majority of men and women favoured the return of the death penalty for certain types of murder'[21]. She suggests that New Zealand voters in 1957 would not have 'proved themselves more enlightened than their European and North American counterparts'[22].
Abolition succeeds
After Labour won the 1957 election, the Attorney-General announced that it would follow its former policy of commuting the death sentence to life imprisonment. The Crimes Bill, introduced by the National government at the end of its term in 1957 and that dealt with Capital Punishment was shelved. When Labour then lost the 1960 election, the National Government that came in had abolitionist J.R. Hanan as Minister of Justice and Dr J L Robson, who also opposed to the death penalty, as Secretary for Justice. Hanan requested that Robson proceed with a ministerial report setting out the case for the complete abolition of the death penalty.
The report attacked the deterrence theory; suggested the death penalty ignored the principle of all punishment which was the reform of the offender; discussed the risk of an error in justice which could cause the execution of an innocent man; and stressed the 'great strain the process of execution imposed on officials, and detailed breakdowns in health which had occurred as a result'[23]. The moral arguments against the death penalty were rounded off by John Bright's dictum that 'the best means of cultivating respect for human life were to refrain from taking it in the name of the law'[24].
When it was initially introduced, the Crimes Bill included a compromise clause which stipulated different degrees of murder. The intention behind this was that the death penalty would apply only for deliberate and premeditated murder, for homicide in the course of another crime or in flight from the law, where there was a previous conviction for murder, or a second murder. Hanan, however, argued that there was no 'compromise clause' that could be drafted that did not have serious flaws and indicated that another Member (Aderman) would be moving an amendment for total abolition of the death penalty which he would support. This amendment was subsequently passed with the support of the Opposition and ten Government members crossing the floor.
Engel notes that the reason for the Government Members crossing the floor was often attributed to the fact that they wanted to see the end of 'hanging by politics'. However, she suggests that this was not the real reason; Hanan and Aderman were long-term abolitionists whose motives needed no explanation. She suggests the others voted for a variety of reasons, including that the death penalty was not a deterrent to murder; that it was seen as 'the natural instinct of outrage, anger and the desire for revenge' (Muldoon); that it did not make sense when murder in 'the heat of the moment' received the death penalty or life imprisonment but when 'through inattention, carelessness or drink' someone kills in a motorcar, the event is not treated very seriously (Macintyre); the possibility of execution of an innocent person (Pickering); and that murder was usually the result of a 'twisted mind' that did not qualify for the death penalty (Talboys)[25].
Steiner claims that in its 1961 report, the Justice Department recommended abolition primarily on the basis that the state could not legitimately take life as it could not be shown that its actions had a deterrent effect on the murder statistics. The report emphasised the comments of the (1958) Massachusetts Commission on Capital Punishment:
"The only moral ground on which the State could conceivably possess the right to destroy human life would be if this were indispensable for the protection or preservation of other lives. This places the burden of proof on those who believe that Capital Punishment exercises a deterrent effect on the potential criminal. Unless they can establish that the death penalty does in fact protect other lives at the expense of one, there is no moral justification for the State to take life."[26]
In the years following the 1961 abolition of the death penalty there was little public enthusiasm for its reinstatement. Steiner mentions two National Party conference motions, one in 1961 to reinstate the death penalty, and another in 1976 to reintroduce flogging, which were both easily defeated. However, Steiner also notes that a number of opinion polls over the period 2004-2007, which may not be particularly reliable, appear to indicate that a significant number of New Zealanders would support reinstatement of the death penalty for some crimes. He notes that 'The continued sensationalisation of crime by the media has a lot to do with these findings. People are bombarded by images of the raw emotion from the victims and their families and informed of every sickening detail of the crime. The harsh reality of Capital Punishment is a million miles away from public consciousness, and it is easy to see why retributivist support for its practice lingers.'[27]
Staff of The Nathaniel Centre
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[a] There were a number of reasons for legislation not being introduced: the Labour Government had a full legislative programme, there were relatively few murders between 1936 –40 and, as it transpired later, the Prime Minister, Peter Fraser, was actually opposed to abolition.
[b] 'Bodgie' - a youth, especially of the 1950s, analogous to the British Teddy boy; often viewed as delinquent, 'bodgies' adopted particular clothing styles and frequented 'milk bars'.
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[1] Engel, Pauline F. "The Abolition of Capital Punishment in New Zealand 1935 – 1961". Department of Justice, Wellington, 1977, p. 19.
[2] Ibid., p.23
[3] Ibid., p.21
[4] Ibid., p.22
[5] Ibid., p.27
[6] Ibid., p.39
[7] Ibid., p.56
[8] Ibid., p.56
[9] Ibid., p.56
[10] Yska, Redmer "All Shook Up. The Flash Bodgie and the Rise of the New Zealand Teenager in the Fifties". Penguin Books, Auckland, 1993, p.192.
[11] Engel, op.cit., p.58
[12] Ibid., p.59
[13] Ibid., p.60
[14] Ibid., p.60
[15] Ibid., p.60
[16] Ibid., p.61
[17] Ibid., p.61
[18] Steiner, op.cit., p.33
[19] Engel, op.cit., p. 72
[20] Ibid., p.73
[21] Ibid., p.74
[22] Ibid., p.74
[23] Ibid., p.80
[24] Ibid., p.81
[25] Ibid., p.99
[26] Steiner, op.cit., p.25
[27] Ibid., p.49
When scepticism goes viral
This article by Michael Rozier uses the example of the anti-vaccination movement in the United States to raise questions about the role that scientists themselves might have played in the rejection by some sections of society of well-established scientific facts. He suggests that a debate that includes values and morals alongside science might do better at changing minds than simply ‘throwing more science at the problem’.
Available online at: http://americamagazine.org/issue/vaccine-wars
The Right to Freedom of Conscience
Neil Vaney
Introduction
A recent post from Terry Bellamak, new president of the Abortion Law Rights Association of New Zealand (ALRANZ), questions why health professionals such as doctors and nurses should be legally able to use the claim of freedom of conscience in refusing to provide contraceptive or abortion advice or services. (http://wp.me/x1XY6w-z1, 14 Sep 2015). Bellamak likens this to the case of Kim Davis, county clerk of Rowan County in Kentucky, who was recently gaoled for refusing to issue licences for same-sex marriages. She fails to see why these two apparently similar cases should have such different outcomes; imprisonment in one case and privileged protection in the other.
There seem to be a number of flaws in Bellamak’s argument. I will examine three of these. The first is that a legal challenge on these grounds has already been laid and dismissed. The second is that the role of health professionals differs significantly from that of a county clerk. Finally, many historical examples show us the great evils that can arise when the grounds of freedom of conscience are overridden.
Three Arguments
In 2009 the Medical Council of New Zealand sent out a draft statement entitled ‘Beliefs and Medical Practice’, touching especially on the area of reproductive health service provision. A group of health professionals known as the New Zealand Health Professionals Alliance Incorporated (NZHPA) applied to the High Court for a juridical review of this statement on the grounds that it contravened S174 of the Health Professionals Competence Act 2003.
Justice MacKenzie found in favour of the NZHPA, ruling that where a practitioner held a conscience objection in these areas he or she was not required to formally refer their patient onto another practitioner who would either provide or facilitate the service – it was required only that they inform their client that such a service could be obtained from another health provider or a family planning clinic. The Medical Council of New Zealand decided not to appeal this ruling and withdrew its statement. When commenting on this decision, the NZPHA stated that its members should not be compelled to do things that they believed to be ethically wrong, clinically inappropriate or against a patient’s best interests.
This last statement leads to consideration of the status and role of health professionals. In her argument Bellamak refers to health professionals as ‘providers of a service’. This is redolent of a mind-set common in the United States where the doctor/patient relationship is viewed as being more like that of a salesperson/customer or petrol pump attendant/car-driver. The nexus is a financial and individual contract. Underlying this vision is a significant philosophical shift, marked by a move from a sense of the common good (the well-being of the entire society) to individual rights and involving the deconstruction of social bonds to the lowest common denominator of financial contract and obligation.
Bellamak glides over this critical distinction by reducing all conscience objections to ‘moral’ grounds, thereby insinuating a basis of religious belief, whereas the more neutral term ‘ethical’ can cover religious, personal or social considerations. An excellent example of this is seen in the debates over euthanasia in the British House of Lords and in Canada in the course of which a number of health professionals, avowedly agnostic or even atheistic, objected to euthanasia solely on the grounds of deleterious social and medical consequences. Closer to home, a further example is the 1977 longitudinal study of 1265 children born in Christchurch conducted by Professor David Fergusson who pointed to later psychological difficulties faced by women who had undergone abortions in their youth. It is data such as this which can and should inform health professionals who wish to embrace a wider vison of the role and responsibility of their profession rather than adopt the individualised and contractual stance referred to above.
The stance I am advocating for is not novel. We see it in the famous speech by Edmund Burke to the electors of Bristol in November 1774. Burke, after acknowledging that an MP must have the highest regard for the views of his constituents, looking out for their interest with the greatest of diligence, then notes: “But his unbiased opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living. These he does not derive… from the law or constitution. They are a trust from Providence, for the abuse of which he is deeply answerable.” He then goes on to speak of the role of Parliament in terms which could be aptly applied to the medical profession; “… Parliament is a deliberative assembly of one nation, with one interest, that of the whole, where not local purposes, not local prejudices, ought to guide, but the general good, resulting from the general reason of the whole.” (The Founders’ Constitution, volume 1, chapter 13, document 7.)
The importance of this stance is well borne out in history. Sometimes laws are passed which seem to meet the needs of the time and the approval of the populace. Such were the racial purity laws enacted by the Nazi government in Germany in the 1930’s, one result of which was the Shoah, the slaughter of six million Jews in slave and concentration camps. What is most frightening about these laws is that they were endorsed as scientific and sound by the leading professors of biology in German universities; theories of eugenics were embraced at every level of society. In passing, it is interesting to note that Margaret Sanger, one of the heroes of the women’s reproductive rights movement, was a leading member of the American Eugenics Society, frequently berating the Catholic Church for opposing eugenic legislation and ideology. One presumes that ALRANZ has completely stepped away from such advocacy on the basis of an ethical judgment, reinforced by scientific findings.
Conclusion
In summarising this reflection I would argue that the model of professional care embraced by the president of ALRANZ is strongly influenced by individualistic and commercial elements that reduce health professionals to mere service providers and too easily overlook the common good of the wider society. Such an understanding also ignores the lesson of history that suppression of the rights of individual conscience can so easily walk hand in hand with oppressive policies born of the social and political bias of a particular age … Stand up Archibald Baxter, Franz Jagerstatter, Mahatma Ghandi, Martin Luther King, Nelson Mandela and innumerable others.
In the words of Dietrich Bonhoeffer: “Conscience comes from a depth which lies beyond a person’s own will and reason and it makes itself heard as the call of human existence to unity with itself.”
Rev Dr Neil Vaney is a Marist priest who taught in the field of moral theology at Good Shepherd College in Auckland and is presently vicar-provincial for the Order, living and working in Wellington.
Editorial: The Zika virus and contraception: Has Pope Francis changed the rules?
John Kleinsman
Growth in the numbers of people affected by the Zika virus, spread predominantly by mosquitos, has been described as an “explosive pandemic”. While relatively harmless for most people, the virus is now strongly suspected (though not yet definitively proven) of being linked to a serious fetal malformation known as microcephaly. In light of that, various government health ministries in the most severely affected areas are warning women to avoid getting pregnant.
While returning from his recent visit to Mexico, Pope Francis was asked by a journalist about the dilemma this situation poses for couples and, more specifically, whether “abortion” and “avoiding pregnancy” (in the context clearly a reference to contraception) might be a legitimate moral response.
Pope Francis’ immediate reply was to reiterate in the strongest possible terms that abortion could never be a morally legitimate means: “It is a crime, an absolute evil.” In saying this he would have been aware of the intense debate in many South American countries about using abortion as a way of dealing with fetal microcephaly.
Unpacking the Pope’s endorsement of the moral legitimacy of “avoiding pregnancy” is less straightforward. It is clear from the language and examples offered by the pope that he was thinking specifically about the use of artificial contraception rather than the “regulation of births” – the right of couples to space births – which is an accepted part of Catholic teaching on marriage and sexuality (see Catholic Catechism n. 2368). His analogous reference to the situation in the Congo, a 1960’s debate about giving oral contraceptives to religious sisters in grave danger of being raped, points to this. However, any doubts about the precise meaning of his words were dispelled just days later by official Vatican spokesperson, Fr Federico Lombardi, who clarified that “the Holy Father was indeed speaking of ‘condoms and contraceptives’ when on the flight back from Mexico.”
Further explaining the pope’s response, Lombardi added: “The contraceptive or condom, in particular cases of emergency or gravity, could be the object of discernment in a serious case of conscience. This is what the Pope said.”
Pope’s Francis’ brief comments have raised questions about Catholic teaching on the use of artificial contraception. Some have gone so far as to suggest that it potentially heralds a reversal of the long-standing Catholic position. I am not in a position to read or know Pope Francis’ mind but, as a moral theologian, I wish to offer three points as part of my own reflection on this debate.
1) The Pope’s response reminds us that whatever one’s beliefs about the use of artificial contraception (and we should recall that the backdrop to the question was a debate about the Zika virus and abortion involving a broad audience rather than a specifically Catholic one), the use of contraceptives is morally different from abortion in terms of its gravity – different because abortion involves the destruction of an already formed human life. At the same time, and in line with Lombardi’s reference to a “serious case of conscience”, this insight does not undermine the seriousness associated with the use of contraception.
2) Many have pointed out that Pope Francis’ reference to the use of oral contraception by religious sisters in the Congo reflects a very different moral situation to that of married couples. The situations differ because permission in the Congo case is neither a dispensation from the Church’s teaching nor an exception to it. Why? Because Catholic teaching on contraception speaks only to intercourse freely entered into by married couples.
Why then would the Pope appeal to this case? It illustrates that he has in mind a truly extreme situation. In doing so he is simply appealing to a fundamental tenet of Catholic moral teaching – the exceptional case does not nullify the ongoing validity of a particular law or teaching outside of the extreme situation. Evidence of this tenet appears in multiple places in Catholic moral teaching which address the different types of conundrums generated by extreme situations, including Aquinas’ discussion of ‘epikeia’, the ‘principle of the lesser evil’, and the role of conscience in helping perplexed persons find moral certainty in the face of a conflict of duties.
In other words, the possibility of couples making contraception an “object of discernment” in an emergency situation does not “reverse” Catholic teaching on the methods of regulating births. The Pope’s comments about the Zika virus need to be understood alongside his previous comments about the ongoing validity and prophetic nature of Humanae Vitae’s teaching on contraception rather than in opposition to them. As he noted in 2014: “Church teaching on contraception does not need to change but it must be applied with mercy.”
3) The reference to ‘mercy’, a defining theme in the pontificate of Francis, leads to the third point. Laws and teachings must always be applied with mercy if we are to avoid an extreme form of rigid moral legalism that stifles human flourishing. By his ‘spontaneous’ teaching on the Zika virus the Pope, with the instincts of a good pastor has, once again, reminded us that at the heart of Christian teaching lies the all-important idea of mercy.
Dr John Kleinsman is the director of The Nathaniel Centre
Immanuel Kant on Dignity
By William Michael
“Dignity” in talk of “the dignity of human beings” ascribes to humans a kind of worth that is supposed to be of the highest significance for how humans are treated and which all humans share in equally. We are maybe so used to this idea that we don’t find it puzzling. But how can it be true? And if it were, how would we know? Kant’s philosophy provides answers to these questions.
For Kant, our moral lives are an aspect of our ordinary lives that should astonish. In this mood he wrote (Critique of Practical Reason):
Two things fill the mind with ever new and increasing admiration and reverence, the more frequently and persistently one's meditation deals with them: the starry sky above me and the moral law within me.
We’ll soon get to “the moral law within,” in the form of the Categorical Imperative, but for now let it stand for the whole of the moral, which it almost does for Kant.
Kant was deeply moved by humans acting purely for the sake of (moral) duty. His idea of the moral is very pure and for him acting for the sake of duty has nothing to do with psychology, even “nice” psychology like empathy, let alone anything neurotic, or the motive of gain or advantage. Doing one’s duty is a pure matter of willing (here meaning choosing) the good because it is good.
To find the meaning and reality of moral acts, Kant did philosophy. His philosophy teaches that moral acts disclose something real about the beings that can act morally: namely, that they are free, reasonable and rational beings. The thought is that only free, reasonable and rational beings would be able to act purely for the sake of duty.
The concepts “free” and “reasonable and rational” are difficult, and understanding Kant’s conception of “free, reasonable and rational beings” is difficult too. However, we have already come across a clue as to what he meant. The purity he finds in the motivation behind moral actions can be thought of as freedom from psychological determination. To be free in this sense is to be, as it were, master in one’s own house. At the same time, to be free in a related sense is to be determined only by that which is in agreement with, not foreign or alien to, one’s true nature. That nature is reasonable and rational, and so to be free is to act for reasons and from reason.
This is why for Kant morality is practical reason. (Practical reason – what I have reason to do – not theoretical reason: what I have reason to believe. Practical reason not sentiment or tradition, to name two key contrasts. It is notable that Kant did not oppose reason to religion. He was a committed Lutheran throughout his adult life.)
Kant’s idea that morality is practical reason is a general idea in need of specific content. “Be reasonable and rational” is not awfully useful guidance. We need some meaningful rule or law – “the moral law within” perhaps. The specific content Kant gives morality is found in the Categorical Imperative (CI). Here I’ll consider the CI to better understand “dignity”. The CI reads (in its second version in Groundwork for the Metaphysics of Morals):
Act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but always at the same time as an end.
If we think about the meaning of “dignity” using the CI, it suggests that we understand that always treating persons as ends and never simply as means is a fitting way to treat beings that have the kind of “inner worth” (Kant’s words) called “dignity”. Seeing this connection we gain a richer, deeper and more useful notion of dignity. We could keep thinking: The CI suggests that my own dignity is important, and not for selfish motives but as a result of the “humanity” in me. And so on…
We can now see how Kant’s philosophy answers the questions opening this essay. If there are free, reasonable and rational beings, then they possess a special kind of worth unlike anything else in the world. The word “dignity” – why not? – is used to express this worth.
How can all humans share in dignity equally? There is no guarantee that any human will act from their nature as a free, reasonable and rational being, but since they are such a being, they could, and in that, each of us is the same. Indeed, given the many ways humans are different – in upbringing, IQ and EQ, talents, tastes, looks, status etc – then perhaps there is no other cogent interpretation of the thought, so important to the modern world, that we are all equal.
Finally, I know all this how? It is disclosed to me in my experience of acts done purely for the sake of duty. Knowing Kant’s philosophy, I understand this.
William Michael studied philosophy and law at Otago and Auckland universities in the 90s … and, for better or worse, has never really stopped thinking about such stuff.
Dignity and the Environment
By Jonathan Boston
The concept of dignity is often thought to be restricted to humanity. Only human beings, some believe, possess true or genuine dignity. Theologically, this is because human beings are distinctive, indeed unique, within the created order. Only human beings bear the special mark of their Maker; only they are bearers of God's image or likeness (Gen 1:27). Hence, amongst all God's creatures, only human beings enjoy a deep, transcendent and intrinsic worth: they alone are sacred; they alone possess inherent and inalienable rights; they alone are ends in themselves rather than means; and they alone share an abiding dignity in equal measure. All other species, it is argued, are different. They lack any God-given dignity. So, too, does the non-living or physical environment – whether here on Earth or elsewhere in the universe.
But is this argument theologically and morally justified? Is not the whole creation, in all its extraordinary diversity, richness, vastness and beauty, endowed with dignity by God?
There are, of course, robust theological reasons for claiming that human beings enjoy a unique, particular or special dignity – indeed, an 'infinite dignity'.1 As bearers of God's image, humanity can claim a distinctive and elevated moral status in relation to the rest of creation. A person is more precious than other creatures. Accordingly, we need stronger justifications for harming a human being than we do for harming non-human species.
But an equally strong theological case can be made that every part of creation – every aspect of the entire universe, no matter how little or large – possesses a certain God-given dignity; it thus has some inherent or intrinsic value. That is to say, all non-human species and physical objects are of value in themselves and for their own sake; they are not merely of instrumental or extrinsic value. To quote Saint John Paul II:
Respect for life and for the dignity of the human person also extends to the rest of creation which is called to join man in praising God (Ps 148:96).2
Likewise, Pope Francis in Laudato Si, speaks of the 'intrinsic dignity of the world',3 and appeals to every person to respect and care for all God's creatures and humanity's 'common home'.
The theological basis for the proposition that the non-human world enjoys an inherent dignity lies, fundamentally, in the claim that God is ultimately the creator of everything that exists and that God values, and rejoices in, every aspect of the creation. Every part of it has worth; every part deserves respect. For everything that God has made, according to Genesis, is 'good'.
That does not mean, of course, that everything is of equal value, let alone infinitely precious. Nor does it imply that any form of human interference with the natural or physical environment is unjustified. But it strongly suggests the need for wise, responsible and sustainable management of the environment.
When people degrade and defile what God has made or cause irreversible damage, they violate their distinctive calling to exercise stewardship and guardianship. Moreover, in bringing destruction, rather than healing, they threaten their own dignity. In part, this simply reflects the fact that everything is interconnected and interdependent. Despoiling the environment destroys the ecosystem services and resources on which humanity depends. It thus reduces the capacity of human beings to meet their needs and ultimately robs them of their dignity. Human flourishing in a devastated wasteland is a contradiction in terms, as is living well in an ecological desert.
Taking the intrinsic dignity of the environment seriously requires urgent and systematic reform. Currently, human greed, poor planning, inadequate regulation and irresponsible economic policies are contributing to enormous ecological damage. Globally, we are exceeding critical planetary boundaries and time is running out to rectify the problem.4 We are already in the early stages of a mass extinction event, one in which a substantial proportion of all this planet's species will be destroyed. We are also rapidly warming the Earth through the unregulated burning of fossil fuels and massive deforestation. Not only will this bring dramatic changes to the planet's climate, but it will also contribute to severe, widespread and, in many cases, irreversible damage to critical biophysical systems.
Nationally, our water quality is deteriorating, our carbon footprint is growing, our land-use management and marine governance are weak, and many native species face extinction. Since human settlement about 800 years ago, we have lost 85% of our indigenous forests, over 90% of our wetlands, and more than 50 bird species. We have significantly polluted more than half of our rivers and many of our lakes, and we are losing soil at about 10 times the average global rate. Hence, claims that New Zealand is 'clean and green' lack substance.
In summary, humanity is currently suffering a chronic 'nature deficit disorder'. Our ecological footprints are far too large. We are borrowing from the future and leaving our children and grandchildren a dreadful legacy – a huge, unsustainable ecological debt and colossal, irreparable damage. As Pope Francis puts it:
We have come to see ourselves as ... [nature's] lords and masters, entitled to plunder her at will. The violence present in our hearts, wounded by sin, is also reflected in the symptoms of sickness evident in the soil, in the water, in the air and in all forms of life. This is why the earth herself, burdened and laid waste, is among the most abandoned and maltreated of our poor; she "groans in travail" (Rom 8:22).5
God calls us to show kindness to His good creation, to treasure its diversity, to care tenderly for its creatures, to tread gently upon the land, and to be good stewards of its resources. Indeed, we are summoned to love what God has made, just as God loves and cares for it. In so doing we both protect its intrinsic dignity and honour our calling as creatures who bear God's image.
Jonathan Boston is Professor of Public Policy at Victoria University of Wellington.
Endnotes
1. Pope John Paul II, Angelus in Osnabrück (Germany) with the disabled, 16 November 1980: Insegnamenti 3/2 (1980), 1232.
2. Pope John Paul II, 'Peace with God the Creator, Peace with All of Creation', For the celebration of the World Day of Peace, 1 January 1990.
3. Pope Francis, Encyclical Letter: Laudato Si' – On Care For Our Common Home, Rome, 2015, p.86.
4. See, for instance, Johan Rockström, et al., "A Safe Operating Space for Humanity', Nature, 461, 24 September 2009, 472-475; John Rockström, et al., "Planetary Boundaries: Exploring the Safe Operating Space for Humanity", Ecology and Society, 14, 2.
5. Pope Francis, Encyclical Letter: Laudato Si' – On Care For Our Common Home, Rome, 2015, p.3.
Culture, Human Dignity and Economic Rationalisation
By Gerard Burns
Cultural understandings of human dignity are culturally generated expressions of the perceived worth of human life at different ages and stages – they witness to the way persons are valued, honoured, esteemed and respected. While every culture has its own ideas and practices surrounding human dignity, the way that this dignity/worth is recognized varies from culture to culture and also undergoes change. The practices by which worth is recognized (or denied) reveal the culture’s values and beliefs about human life. This anthropological approach, starting as it does from observation differs from the philosophical approach of official Catholic teaching which brings a trans-cultural and meta-physical dimension to the discussion.
A simple definition of culture is to see it as the sum of the ideas, customs and social behaviour of a particular people or society. It includes morals, codes, traditions, dress, language and religion. Two simple examples from my own early years (Pakeha Irish-Catholic and middle-class, growing up in NZ in the 1960s) around the teaching of 'good manners' are illustrative.
The first example is the instruction: 'Don't eat with your mouth open because it’s impolite'. Here 'impolite' seems to mean it is insulting and ungraceful to show how you chew food. Perhaps implied is that eating is a semi-private or personal activity? Practically speaking, this instruction helps avoid food falling out of your mouth when eating. That would be wasteful of the food, inelegant in terms of tidiness and potentially mess-making on clothes, tables or floors. The values of respect for others and for oneself are to the fore.
A second example: We were told by our Catholic school teachers that when the priest or any adult came into the class, we were to stand up. This was a way of recognizing the presence of an important person. Standing up recognized the adult’s superior status and 'dignity'. Wrapped in this are certain cultural and hierarchical values, namely the value of the adult over the child. In the Catholic world the priest had a theologically superior status of a 'holy' man. If the priest was not ‘holy’ by behaviour then he was holy because he dealt with 'holy' things. Respect and dignity were ascribed not simply because of the priest’s personal qualities, but because of his role.
Hierarchies appear in all cultures and societies. In some Pacific cultures, one way of recognizing you are in the presence of 'more important' people (for example, chiefs) is to keep one's head below the level of the chiefly person. So you will see people bending over as they pass the chief to symbolically recognize their relative status. In Anglo-Saxon tradition the curtsy or bow before a royal personage served a similar role.
Value or worth can be intrinsic (such as simply by being born into a royal line), or gained through achievement (such as in battle or through academic qualification). In many traditional societies one's worth grows as one ages. The older person is seen as a source of wisdom and an asset even if requiring more assistance from family and neighbours. The honouring of kaumatua in the Māori world exemplifies this.
Are there universal values/practices which go beyond cultural variations? Anthropologists have looked for common practices in human behaviour but have not seen a common ethic. Such an ethic needs reflection on the commonalities and on the philosophical question of what is good for human beings. Hans Kung's work on a global ethic is part of that search.
One significant factor flowing from particular cultures but influencing world culture is what Pope Francis (among others) has outlined in ‘Laudato Si’: the 'technocratic paradigm' (LS.106) that has brought damage to the earth and its people. This worldview combines the influences of modern technology and industrial capitalism to shape social and economic practice.
Max Weber analysed this paradigm to some extent in his book the “Protestant Ethic and the Spirit of Capitalism’ (1930). In ascribing the foundations of modern society to Puritanism he underestimated other factors. Nevertheless, it is true that the mind-set behind the economic and technological development in Europe and North America was significantly influenced by the religiously-inspired exploration of the mind of God by Copernicus, Mendel, Newton and others.
Gradually this exploration sought to distance itself more from religious belief (secularisation) and the idea of ethical constraints on new technology lessened. The classical economics of Adam Smith and David Ricardo, along with utilitarian philosophies, has gradually brought theories of marginal utility and the model of 'homo economicus' to the fore.
This model saw ‘rational behaviour’ as that of a ‘man’ carefully calculating what will bring increased profitability to himself. It is a model based on individualism and self-interest. Smith proposed that if every actor worked on this self-interested basis then all of society would benefit as if moved by an 'invisible hand'.
In practice, this approach, especially its more recent form of neoliberalism (Reagonomics, Rogernomics, the ‘Washington Consensus’) has been largely discredited by the Global Financial Crisis. However it is still the basis for much contemporary macroeconomic practice (for example, stock markets, etc). The pragmatism of this paradigm increasingly influences views about who and what is useful to society.
One consequence of this is a cultural shift in the perception of ‘worth’. Where in many traditional societies to be old was to be valuable, in fast-moving, mobile and pressured technological societies, what is valued is the capacity to handle the latest technology. This favours the young and quick-adapters.
However, with the favouring of the young and the quick, comes a devaluing of the old and the sick. Hence a push for euthanasia for 'humane' reasons, and individuals not wanting to be a burden on society or their families. The economic aspect of culture can shape more general values. The defence of human dignity in a Catholic sense relies on a philosophy (shaped by the doctrines of incarnation and redemption) that explains the broad basis for what is good for individuals and our societies.
Gerard Burns is a priest of the Archdiocese of Wellington, currently Vicar-General and working in Māori pastoral care. He has lived and worked in South America and has a Master in International Relations from Victoria University.