Collected Works

Letters from the Bottom of the Well

2009-01-13T16:52:00.000-08:00

Life can be abrupt. Sometimes, it seems as if most of human endeavor is a furious race to keep our lives exactly as they are - a furious race that both time and nature conspire against us to lose. Eventually change comes to us all, whether young or old, rich or poor, ecstatic or miserable. It may be the universal constant, but this doesn't make it easier to cope.

I deal poorly with change. Sudden shifts of course make me feel lost and out-of-control. My inability to deal with changes can on occasion cause lingering difficulty and damage to my psyche. Sometimes, I feel like some things are more damaging to me because I keep them locked away in the deep well of my mind rather than putting them on paper or thinking about them. If I drop them down the hole, and drown them in the waters at the bottom of the well, I like to think that they are gone.

Unfortunately, I'm discovering only too late that sometimes the memories don't stay where I put them. Small stimuli, like a song on the radio, the sound of a familiar voice, or the sight of an item can send my mind swimming into the deeps to encounter those thoughts and memories that I’d tried ineffectually to drown. This note is intended as a tribute to one of the memories to which I have tied a stone and let it slide into the watery deeps, but which has resurfaced, as a reminder has brought it floating into view again.

When I was nine, I moved from a small town in Kansas, to Topeka. Whether by nature or by nurture, I'm a coward at heart. My first instinct when I face danger is to run, and when I can't run physically, I run mentally. Retreating into myself makes it hard to interact with people, and because of this, I've always been shy and afraid of trying new things. Uprooting a young child from his few hard-won friends and neighborhood and taking him to a totally unfamiliar place is pretty hard on a developing kid. I didn't know anyone in the neighborhood. I didn't know anything in town. I didn't know anybody at the church my parents took me to. And as usual, schoolchildren were merciless to the 'new kid.' I was teased, hit, kicked, and excluded from most school activities with other children.

Three years went by without any significant disruption in that uncomfortable pattern. I was an outsider and suffered the daily rituals of abuse. I had few, if any, friends. But one change was coming - and it was a change that I looked forward to with the hope that only a certain kind of desperation can breed: I was going to a new school.

The new school offered me many opportunities. There were better teachers, I could choose some of my academic work, and there were extra-curricular activities to get involved in. But the opportunity that I looked forward to most of all was the chance to return to something I desperately desired - anonymity. The ability to simply blend into the crowd and go through a day without being tripped in the hallway or having my school supplies stolen was the highest pinnacle of social achievement that I could picture - and I was determined to make it mine.

Unfortunately, this eluded me. My reputation as a nerd quickly got around. The kids again teased me for my good grades, for my participation in academically-oriented extracurricular activities instead of sports, and for simple things like not knowing the rules to basketball when we were forced to play in gym class. I settled back into the familiar and uncomfortable routine.

That is, I did until Nik showed up.

Partway through the year, a new student arrived at the junior high. His dad worked for a big company and had been transferred into the Topeka office from out-of-state. The new student's name was Nik, and he was immediately popular. He was good at sports. All of the girls had crushes on him. He came from a slightly richer family than the average students at the school. But in addition to all of these things, he was in the Gifted program with myself and the other nerds.

Nik was also in the same gym class with me. I hated gym class. It was one non-stop humiliation session as I tried desperately to make it through a class period without messing up too terribly at some game I didn't understand with teammates who didn't like me and resented the fact that I was assigned to their team. During the Autumn one day, we were playing football (it was supposed to be touch-football, but that didn't stop most of the guys from trying to hurt each other while playing). My team was down by just a little bit, and I was trying to do what I usually did during the forced games of football. I would run in the direction my teammates ran, but try to keep myself as far away from the ball as I could so as not to interfere too much with their attempt to win. This day, however, I was keeping close to one guy on my team, and one of our teammates on the other side of the field decided to throw a pass to the guy I was shadowing. My reflexes aren't fast, and I'm not very coordinated. I tried to get out of the way, but I wasn't quite fast enough. The guy who was supposed to catch the football and then make an easy point for our side yelled at me to get out of the way, but I tripped. Then he tripped over me, and the ball went rolling across the field.

I felt badly about our loss. I thought it was bad enough that I had (at least) participated in losing the game for our side, but my teammates thought it was a bit more serious of an offense than I did. When we were back in the locker room, one of the guys held me against the gym lockers while some of his friends took turns spitting in my hair.

Nik (who was on the winning team) saw this and came over to the angry jocks who were spitting on me and ordered them to stop. Nik normally spoke in an even, almost joking fashion, but when he told them to go take their showers and leave me alone, his voice was firm and deadly quiet. It was the sort of quiet where you know that violence is only a moment away and where one false move might bring fury and vengeance down from the heavens. For Nik to take on four jocks at once would have been a bit of a hard fight, but beating up the most popular guy in school doesn't earn you many points in the popularity contest, so they took one last look at me and retreated to the showers. I thanked Nik and I can still remember his words to me that day. "Don't let them do that to you, Matt. You don’t deserve it.”

Nik and I became friends after that. We played games together, online and in person. We helped each other with homework, spent time designing role-playing games, and enjoyed each other’s company. We both joined the school’s debate and forensics teams, and because we both excelled, we spent plenty of time cracking jokes, playing cards, talking about where we were going in life, what we valued, and how for us, things would be different ‘out there’ in the world.

Nik's birthday was yesterday.

On February 1st, 1999, Nik killed himself and I couldn’t stop it.

It’s been almost a decade and I still miss him.

Life is abrupt. Sometimes, it seems as if most of human endeavor is a furious race to keep our lives exactly as they are - a furious race that both time and nature conspire against us to lose. Eventually change comes to us all, whether young or old, rich or poor, ecstatic or miserable. It may be the universal constant, but this doesn't make it easier to cope.

Novel Excerpt

2008-11-12T22:42:00.000-08:00

The following is an excerpt from a novel I have been working on for a few months. Pieces of it simply aren't coming together the way I'd like them to come together, and this is one of those parts. My apologies if it appears to end abruptly, though. Feel free to comment on what you see as its strengths or weaknesses.
_______________________________

The coffeepot was buzzing. It wasn’t that Thomas found the metallic rattling all that bothersome on its own – it was just that the coffeepot had been buzzing every Tuesday night for the past six months. The industrial stainless steel percolator sat, as it always had, on the edge of a table, slowly dripping lukewarm decaf into a dirty styrofoam cup placed specifically to catch the errant drops. Thomas could see the source of the noise from across the room – a small gap at the top of the machine showed that the screw which held the machine’s cover on securely had come loose – but why nobody had thought to tighten the screw in six months nagged at him. It would be such a small task to fix the coffeepot, but perhaps even that minor effort was beyond the ability of the people here.

Glancing around the circle of brown metal folding chairs in the ill-lit room, he admitted to himself that the people in the group had more important things to worry about than the maintenance of a worn coffeepot, and, for that matter, so did he. The group meeting had started.

Just once, Thomas thought, I’d like to attend a group meeting that isn’t so depressing. People didn’t usually attend meetings like this unless they had reached the end of their own resources, and it seemed a bit unfair to make the setting so powerfully reinforce the sense of hopelessness and despair. The broken coffeepot, the cold metal folding chairs that showed decades of wear, racks of torn and tattered costumes brought out year after tired year, the stained and dreary carpet, the stale smell of sweat and smoke so old that the odors had seeped into every fiber of the room, and even the faint funereal organ music coming from up above all added to a general feeling of being at the bottom of the barrel. Church basements are all the same, he thought.

Left alone in such a place, the mind might find ways of dreaming itself to more cheery climes, but unfortunately, the whole point of a group therapy session involved there being a group present. No matter the reverie Thomas might be able to summon, he was positive that someone would find a way to break it and pull him back down to the bottom of the well to wallow in another person’s misery.

Thomas uncomfortably glanced around the circle to his immediate left, where Jonathan sat, shifting in his chair. Jonathan had terminal colon cancer and was supposed to have died three months ago according to his doctors. For the six months that Thomas had been coming to group therapy sessions, Jonathan had chosen to sit beside him in the circle. Even on the one occasion when Thomas had purposefully sat in a different chair, Jonathan had followed like a diligent puppy, attempting to stay close at its master’s heels. Of course, Jonathan wasn’t a truly unpleasant man to talk to, but the dark smell of human excrement hung faintly in the air about him – a miasma which resulted from the colostomy bag hidden under his bulky clothing. Raising his cup of tepid coffee to his lips, Thomas tried to concentrate on the smell of coffee instead, but to no avail. With even the tiniest movement in his chair, Jonathan would compulsively reach down to touch the half-hidden bulge under his clothing self-consciously – a fact which called attention to his condition all the more.

Thomas knew he should feel sympathy and compassion, but that well had run dry. Thirty-two years spent counseling the dying and bereaved as a chaplain at Landon Hospitial and he used to greet each new day with renewed vigor, telling himself that he would bring peace to a lost soul, help the confused through their turmoil, and soothe the bitter and the angry. He'd had a natural gift for comforting those in need, and by stripping away his psychological armor, and truly immersing himself in their anguish, resentment, and pain, he could pull himself above the fray, with his charges in tow.

That was then. Now, the thoughts and images of the dying simply washed over him; the feeling of sympathy that had once been so powerful now was replaced with revulsion and apathy.

Ruefully, Thomas ran his fingers through his closely trimmed beard. Isn’t that exactly me? At no time in my life has my calling been stronger. These people have a need for my guidance and counsel. They need to be comforted, relieved, and brought back from the brink of a despair that shadows them with every step in these last few months of life. And it is precisely at this time when I can’t bring myself to tell them that I have no guidance and counsel for them – no hope to promise – nothing of myself left to give.

Halfway across the circle, a woman was quietly sobbing into her hands while the psychologist tried to comfort her. Thomas hadn’t really been paying attention to her story. He vaguely recalled her from a previous meeting, but couldn't remember the specifics of her condition. Whatever it was, she was here for the same reason that they all were here. She was dying and had nowhere else to turn.

His life hadn’t always been so bleak, Thomas mused, waiting for his turn to speak. Six months ago, when he’d finally been persuaded by his wife, Kari, to see a doctor about his persistent cough, he’d been positive that the visit was simply a waste of time and money. After all, even though he’d quit smoking when their daughter, Natalie, had been born fifteen years ago, he’d still smoked two packs of cigarettes a day for the better part of three decades. A cough was just part of what he’d expected. He hadn’t been prepared to face his death. No man ever was. Doctor Spiretti himself, the best oncologist in the state had confirmed it to Thomas personally: lung cancer - and quite advanced. That had been a long time ago, though, and it seemed like remembering someone else’s life. There was just so much that the other, half-remembered Thomas didn’t yet know about his future. About his life. About Kari.

Kari.

Even thinking her name made Thomas feel the flush of new tears creep across this face. He blinked the flush away, awash in anger and self-pity. It had been so perfect…

...

“Tom? Tom, are you outside?” she called.

“Yeah, Kar'. I’m out here.”

Thomas sat alone on the wooden bench in the shaded arbor, watching the cool summer breeze dance through the young maples at the edge of the garden. He’d planted them just a few years ago to provide a mild windscreen to keep Kari’s garden a little safer, and despite the agony from his arthritis flare-ups and a wicked looking bruise putting them in, days like this renewed Thomas’s love of nature and the artist who sublimely wielded her. The leafy tips of the trees pirouetted and swayed, as if in time to music that only they could hear, and that he could only dimly and jealously feel in the caress of the air as it flowed through the arbor’s ivied overhang.

“There you are,” Kari said, rounding the corner and stepping into the shade. “Doctor Richards called for you earlier. He said it wasn’t urgent, and I promised him that you’d call him back later.” Kari was wearing her pale blue sundress, and the Oklahoma sun was weaving shimmering highlights through her auburn hair.

“Care to join me, Kari? I came out here to enjoy the weather while it lasts.”

“And the Beaujolais, I see,” said Kari, raising one eyebrow impishly. “Anything left in that bottle?”

“I might be able to find something for you,” winked Thomas, reaching under the bench and pulling out the dark green bottle and his glass. “It’s the new one, and I’ve only had a taste.” Kari made her way to the bench and snuggled into Thomas, while he poured some of the fragrant red wine into the glass. Thomas’s arm slipping around her shoulders, Kari laid her head on his chest as her delicate fingers curled around the stem of the wine glass. Thomas ran his fingers through her silken tresses, and rested his cheek against head, inhaling deeply and luxuriating in the feel and smell of her. It had been twenty-nine years - no, twenty-nine blissful years - of marriage and he still couldn’t believe his luck.

“Mmmm. You must have used that lilac scented soap I bought you for your birthday,” Thomas sighed approvingly, inhaling again. “Do you remember all those lilac bushes on campus when we met?” Thomas had been finishing his divinity doctorate, and Kari had been studying English literature. He’d been sitting beside a row of lilac bushes at dusk, thinking about his doctoral dissertation, when a strange girl walked up to him, sat down, and simply asked him whether he might be willing to walk her to the other side of campus as it grew dark. Who’d have known then that her sparkling green eyes would be playfully staring up into his serious brown ones thirty-five years later under the boughs of an old oak that graced their back garden?

“Of course I do. I walked past those bushes a dozen times without you looking up from your battered copy of 'I and Thou'.' Giggling, Kari imperiously stabbed a finger into Thomas's chest. "How you could find stuffy German philosophers more engrossing than your surroundings, I could only guess."

"Austrian, Kari. The author was Austrian and Israeli. And in my defense, I was using part of his work for my dissertation," Thomas protested.

Kari stuck her tongue out and wiggled it at Thomas. "That's not what I remember," she continued. "I remember you being so caught up in your book that you made me do all the work in asking you for a date."

"Now, hold on a second," Thomas corrected, amused at his wife's version of their meeting. "As I recall, after walking you back to the house you lived in, I was the one who asked you whether you would mind accompanying me to the next production at the student theater."

Kari sniffed, dismissively. "Yes, but it was my idea. It took you forever to get around to asking me, too. You were so nervous that I thought I might have to change our destination on the walk home another time or two. I'd already had you walk me almost a mile past my house to another friend's home. If it'd taken you much longer to get around to it, I might have had to think up a friend that lived in another city."

"You little she-devil!" Thomas laughed. "I wondered why you 'moved' to a new house closer to campus only a week afterwards. I just thought it was a coincidence." After a few minutes of quietly chuckling while his wife nursed her glass of wine, Thomas remarked, "It's good though, that you remember those lilac bushes, even if your memory of the event is a little different than mine. Sitting by those bushes in the warm sunshine with you was one of the happiest moments of my academic career."

"I not only remember sitting beside the bushes when we met,” Kari said, mischievously, “I also remember all the times we were under those bushes for other activities.” She archly raised an eyebrow. “Oh yes, I remember those bushes.”

Thomas blushed as Kari’s silvery laugh pealed through the arbor.

When her mirth had quieted, Thomas took her hand and half-whispered, “God, Kari. I love you. I really and truly do.”

“Well then, you romantic old rogue,” she said, putting down the wine glass down onto the grass, “whatever could we do about that?”

Thomas kissed her. Running her hands through his sandy hair, she winked at him and pulled him closer. The sparkles in her green eyes pirouetted and swayed, as if in time to music only they could hear. Thomas gave up his reason and gave in to the melody.

Forgotten, the bottle of wine spilled into the grass, and the world smelled like lilacs.

...

A fresh wave of his mind-clogging odor washed over Thomas as Jonathan shifted uncomfortably in his metal folding chair. Excusing himself, Thomas slipped away from the circle of folding chairs and made his way over to the table where the coffee machine quietly rattled to itself. If nothing else, I’m a bit farther from the smell. As the dark liquid filled his small paper cup, Thomas bit his lip, trying to hold his memories at bay. I can almost smell the lilacs.

Almost.

Almost.

Returning to his chair, Thomas settled in and only half listened to the psychologist who was there to help them cope with their illnesses. The man was explaining to the group that pain management techniques could largely give them the quality of life that the group members desired.

Managed? What does this man know of medicine? Or of pain, for that matter? Some pains aren't that easy to deal with...

...

“It won’t be for very long, Kari,” Thomas said, selecting a sturdy pair of brown dress shoes from their closet. Holding out several neckties, he turned to where she sat trembling on their bed. “Which tie goes best with this shirt? The blue one or the green one?”

“The blue one,” answered Kari. “I just don’t understand why it has to be you. I thought we were finished with this.”

“I have to go where I am needed most, Kari,” said Thomas, easing himself down on the bed beside her. “Right now, there are people who need me to help them find their source of hope, and I can’t ignore their call.” Slipping his arm around her shoulders, he wiped away a tear that was running down her cheek and hugged her close.

“I know, it’s just...” she hesitated.

“Just nothing,” Thomas said. Standing up from the bed, Thomas put his hand out and tousled his wife’s hair. “Don’t worry, Kari. I’ll only be gone for a couple months, and before you know it, I’ll be back home. When I volunteered for missions work in Ecuador, we knew that there were some risks involved. I’m not even going to be near any dangerous parts of the country, Kari. I’m only going to be training other missions workers from a church just outside of Quito.”

“That's what Ron thought, though. The only reason that the diocese called you in is because your predecessor was killed, Tom. I know that you'll probably be safe, but all of the ‘what if’ scenarios keep running through my head. I love you, Tom. I don’t think I could bear to see you hurt,” she half-whispered, tears again sliding silently down her cheeks.

“Come on,” Thomas joked. “There’s nothing anybody could do to further ugly up this mug, and you know it.”

“There’s my girl. It’ll all be okay. I know it doesn’t feel that way to you right now – hell, it doesn’t feel that way to me, right now – but I’m a man of faith. My path isn’t always my choice, but I’m always richer for the journey.” Thomas stood in front of her, took her hands in his, and gently kissed her forehead.

“Put your trust in my words, my beloved,” he whispered. “I’ll come back to you. I will.”

With a final hug to his disheveled wife, Thomas picked up his suitcase, and walked out of his house.

...

“Sir! Sir, you can’t go in there!” Someone was yelling at him. He heard the voice, but ignored the words. Whatever that was about, it wasn’t as important as getting inside… as finding her.

Suddenly there were strong arms holding him back. Thomas struggled against the powerful grip of the person restraining him.

“Let go of me!”“You can’t go inside, sir. This area is off limits unless you are part of the investigation,” the voice repeated.

“I have to!” Thomas screamed, tearing away from the grasping hands and rushing toward the yellow police cordon. “That’s my house!”

He ran. Across the lawn. Past the garden shed. Around a tree. To the flagstone path leading up to the porch. I’m almost there, Kari, he shrieked inwardly. Hold on. I’m coming back. I said I would, and I am. Hold on.

The world spun, wildly. There was blood running out of his nose, and somehow he was facedown on the stairs of the porch. There was a blinding pain in his side. He tried to move, but couldn’t seem to get his feet underneath him. No time.

Only a few more feet. No time.

Then the strong arms were pulling him backwards, and everything faded in a blinding flash of black sparkling darkness.

...

“Reverend Huxley? You waking up?”

Thomas blinked his eyes, disoriented. “Jorge?”

In his still swimming vision, he saw Jorge Alvarez, one of the doctors that worked with him at Landon. Doctor Alvarez was in his early-forties, had transferred to Landon Hospital from a hospital in Arizona almost a decade ago, and quickly found a kindred spirit in the person of Thomas Huxley. Thomas enjoyed finding that Jorge had a quick mind, was deeply religious and well-versed in theology, and enjoyed engaging in philosophical and theological sparring over lunch in the Hospital cafeteria. As the years passed, their daily discussions blossomed into a healthy friendship. For the past two years, Jorge and his wife, Angela, had been regular guests to Thomas’s home, but why would the Jorge have come with him to the airport?

The airport. I’m not at the airport. He’d just finished checking his luggage when he’d gotten the phone call from a neighbor on his cell phone. He couldn’t even remember all of the details. A house fire… Police cars, fire trucks, and ambulances... Flashing lights and sirens...

“Jorge? What happened?”

“The cop that brought you in said you’d taken a nasty tumble. Looks like you fractured a couple ribs on your right side and broke your ankle. We put you under and patched you up while you were unconscious, but you’re going to have to take it easy on that leg for a little while.” As he spoke, Doctor Alvarez paced around the hospital room, steadfastly refusing to meet Thomas’s gaze. Slowly, he forced himself to look into Thomas’s eyes, and as he did so, he gently lowered himself into a chair by the window. Something was troubling him. After a moment of silence, he spoke haltingly, his hands shaking.

“You’ve known me for seven years now, Thomas. I’m a decent enough doctor – not one of the best, but good enough – and I’ve always relied on you to help me in situations where I needed to inform a patient of bad news. I’m just not good at handling the personal side of medicine, and for that, I’m truly sorry. I’m sorry that I have to be the one to tell you what I very much do not want to tell you, because a better man – a man like yourself – in my situation would have something inspiring to say. You’re a good man, and you’ve always been honest and compassionate with me.”

Jorge took a deep breath and the words came tumbling out, as if he could not bear to keep them silent any longer.

“I’m so sorry, Reverend. We did everything that we could. Kari died in the ambulance en route to Landon. The ambulance crew did everything that they could have done – I talked to them myself – but…” At this, Jorge’s buried his face in his hands and shook, silently.

Thomas lay quietly in his bed, listening to the chatter of the nurses in the hallway outside, a voice paging a doctor over the hospital intercom, and Jorge Alvarez’s discomposure. It didn't feel real yet. They were just words. Just words.

“I’m so sorry, Reverend,” Jorge mumbled, “I’m so sorry.”

“Thank you, Jorge,” Thomas whispered at last, his voice heavy and wooden. A moment later, Thomas whispered continued, “I… Can I see her?”

Doctor Alvarez softly shook his head. “You can, but I’m not sure that you should. It might be better for you to remember her how she was.” Thomas nodded, quietly. It felt like he was drowning.

“Thank you, again, Jorge. I.. I think I’d like to be alone for a while.”

“I understand, Thomas,” Jorge said, rising from his chair and stepping toward the hallway. “I’ll send a nurse in about a half hour to see if you need anything, but I’ll be back later today.”

Standing up, Dr. Alvaraz headed toward the door. As he crossed the threshhold, Jorge made the sign of the cross on himself, and whispered, “God and the saints protect his warrior,” and quietly shut the door.

Alone, Thomas gazed out the window at the flat brick wall that was his only view in the dim gray light that filtered down from above - not that the view mattered to him. I didn’t come in time, Kari. I didn’t come in time. Forgive me.

Alone with his thoughts, he wept.

...

The group meeting was over. He hadn't gotten a chance to speak before their two hours was up. He'd simply sat in silence, listening, and waiting. As he stepped out of the doors of St. David's church into the cool night air, he knew that he was ready. He knew what he was going to do. He'd made the arrangements. There was no sense in putting it off. Staring up into the night sky, a tear slipped down his cheek.

I'm coming, Kari.

I'm coming.

Fiction, Mood piece: Sinister

2008-11-12T22:23:00.000-08:00

(The following is an excerpt from a bit I did when I was trying my hand at writing a detective story. The villian - a narsicisstic serial murderer - is secretly the brother of the detective).

The black car had slipped quietly through the streets. The overhead glow of a streetlamp had lent the night a surreal aura; the trees borrowing strange shadows - dancing in the dark as they flew by. It felt like the kind of night where anything could happen - and if you were unlucky or unwatchful, it just might.

The October damp hung heavily against the Earth, clinging to the shadowy form on the sidewalk up ahead. Her faded black sneakers scuffed back and forth along the cracked cement, breaking dry leaves and grinding used cigarette butts into the gutter. The man could see her shivering - could almost taste her discomfort on the wind. He slowed to a stop and beckoned her over.

“Need a lift?”

“Oh, hey! It’s you,” she replied. “Nice wheels. When’d you get the convertible?”

“Pretty recently,” he said. “You heading back to your place?”

Smiling at him in the half-dark, she raised an eyebrow and asked, “could we make it yours?”

He smiled, and she got in. Without a word, he pressed on the gas. The tires squealed, spinning in the loose gravel at the side of the road, and kicking up a spray of grit. Gaining traction, the convertible lurched forward, and raced away. The car sped on through the night.

It was all so fast. So good. So right. He could barely remember arriving home, taking her inside, or their frenzied passion. There were brief flashes of a hand pressed into the small of her naked back, his breath hot on her neck, and her arching response. He could only just barely recall his hand sliding under the pillow, reaching for her gift. The only thing he could remember clearly was the beautiful widening of her eyes and sharp intake of breath as the blade of the knife slid silently between her ribs. She was terrified, gasping, and it was heady. Intoxicating. Beautiful.

As she struggled feebly under his weight, her blood slowly pooling under them, he knew that that night, it would finally be right. That night, it would feel right. And it did.

Thinking back to it, he shuddered in barely repressed pleasure, reliving every sensation. He could recall her beating uselessly against his back, her hoarse gasps growing hoarser and weaker, and the vibrancy of her green eyes growing dimmer and dimmer. Nothing had ever compared to the act of passion, the hurried intimacy of the affair, and the closeness that he could feel to them as they took him into them and gave him their last passion. He had to relish it. Live it. Savor it. It was special.

He couldn’t permit himself the luxury of such enjoyments very often. It interfered too strongly with his work… his project. It had been too long, though. He needed to share his gift. Was it time again to allow himself the experience? Slipping on his overcoat, he left his apartment and started walking down the street. In the growing gloom of dusk, nobody saw him go. He was just another anonymous face in a sea of humanity. It was a new city. New places to discover. New sights to see. New people to meet. New loves to be had.

In the distance, he could see a girl leaning against a lamppost. He paused under a tree, pretending to tie his shoelace. Glancing up, he watched her. Was she the one? As if in answer to his unspoken question, the chill breath of the Earth raced through her, slicing through her every defense, leaving her shivering. Exposed. Vulnerable. Alone.

From the shadows under the trees, he shivered with anticipation. She looked like she could use a friend.

It would be a good night.

2008-03-08T14:00:00.000-08:00

The Necessity of Rule-Following:
A normative exploration of the interplay between justice and process in the writings of Walter Mosley and James Lee Burke

M.D.

Class Thesis, Law in Literature
Washburn University, School of Law
Professor G.P.

“Justice is the first virtue of social institutions, as truth is of systems of thought.”[1]
--John Rawls

I. INTRODUCTION

Mankind has always been preoccupied by the question of how we ought to live. Our libraries and histories are filled with texts of philosophy and theology which assign to people obligations and rights. Our history is replete with legends and myths which provide examples and cautionary tales, advising us to walk carefully the fine line between correct and incorrect conduct.

Fundamentally, our preoccupation with morality is a preoccupation with justice.[2] Justice is commonly defined in the relevant philosophical literature as being a state in which the benefits and burdens of life are arranged among individuals according to their desert.[3] This concept seems to be ingrained into individuals at a young age, and many of our moral intuitions as children support this conception of justice. The idea that good things should happen to good people and bad things happen to bad people can be seen in every child who, being wrongly punished for the act of another, protests “It’s not fair!”

It has been said that those who hear clearly the call of their own consciences most clearly hear the call of justice.[4] This sentiment, once expressed by a Nobel Laureate in literature, Alexandr Solzhenitsyn, reveals a fundamental truth regarding the nature of justice itself. Justice is intimately tied to our own moral intuitions. These intuitions, while taking marginally different forms in some situations across cultures, are largely uniform and biologically determined.[5] It is this broad cross-cultural agreement that allowed that Nobel Laureate to further explain his point: “Justice is conscience – not a personal conscience but the conscience of the whole of humanity.”[6] By placing the dictates of justice beyond personal moral judgment, and into the realm of the objectively true, Solzhenitsyn recognized the twin inherent difficulties involved in mankind’s shared attempts to create and do justice. First, as finite creatures bound in our own realms of subjective experience, humans lack access to the objective normative content which would determine the just outcome to any situation. Secondly, all too often, people have denied the existence of the first difficulty, leading to the repeated conflation of personal subjective and impersonal objective moral judgment.

While the preceding material may be abstract, the material on which such concepts operate is all around us. Everyday interactions between people provide the backdrop against which these two difficulties play. Unfortunately for humankind, these two difficulties create the potential for disaster in any attempt to operate outside of lawfulness. It is the purpose of this essay to examine the relationship between the rules of society and our desire to do justice, and the havoc in potentia which exists when we allow the latter to dominate our actions.

The end result of this examination will be the decision that in a vast majority of cases, violating established law to do justice is too dangerous a precedent to set, even if it achieves greater justice in the short-term. The analysis will include a discussion of the writings of James Lee Burke and Walter Mosley, the views of justice espoused by the main characters in the writings analyzed, and will conclude with a normative evaluation of these views in light of the civil disobedience movement, John Rawls’ “Theory of Justice,” and Plato’s “Crito.”

II JUSTICE IN THE EYES OF DETECTIVE DAVE ROBICHEAUX

This section will analyze what justice means to the fictional character of Detective Dave Robicheaux and his partner “Clete” – creations from the pen of James Lee Burke. Dave Robicheaux is the protagonist of Burke’s novels, and the good detective solves various mysterious crimes throughout the books, and Clete is his right-hand man who does the dirty work that Dave wants him to. Their relevance to our discussion on the relationship between process and justice is shown through his treatment of individuals they investigate or interrogate. This essay will examine Dave Robicheaux’s and Clete’s unique style of detective-work in the books “The Neon Rain,”[7] “Sunset Limited,”[8] and “A Stained White Radiance.”[9]

Fundamentally, Dave Robicheaux might be described as being an advocate of ‘cowboy justice.’ By this term, this essay hopes to indicate both the independent nature of his particular brand of law-enforcement as well as a certain romanticism concerning the dispensation of justice to evildoers and good people alike. The independence can be seen by utilizing examples from the three works by James Lee Burke in which Robicheaux acts as prosecutor, judge, and executioner; and the romanticism, while able to be inferred throughout the novels through the actions of Dave Robicheaux, is best placed in context with a brief discussion of this subject in “A Stained White Radiance.”

Dave Robicheaux is the cause of a substantial number of deaths throughout the novels, but after each one, the reader is left with a slightly self-indulgent sense that justice has been done. An example of this might be an encounter with a local criminal, Julio Segura. Dave Robicheaux and his partner “Clete” stop Segura’s vehicle and attempt to pressure him into giving them information on the location of some other criminals about whom Robicheaux is interested more deeply.[10] Rather than following standard police procedures, Robicheaux and Clete engage in maverick interrogation of the inhabitants of the vehicle, going so far as to provoke the individuals in the vehicle into an armed battle[11] from which Clete and Robicheaux emerge unscathed, but from which the ‘bad guys’ in the car do not.[12]

Robicheaux and Clete have no formal cause to detain and question the people inside the vehicle – a fact admitted by omission.[13] At first, Robicheaux merely desires to question Julio Segura regarding a murder victim Robicheaux is investigating.[14] However, once the vehicle is stopped, Robicheaux declines to question Segura about the deceased young girl he is investigating. Instead, Robicheaux asks about the whereabouts of three other criminals,[15] and delivers a small speech in which he morally condemns Segura for the death of the girl (without evidence).[16] This speech nicely sums up the complete independence from law that epitomizes Dave Robicheaux’s approach to dealing with ‘bad guys,’ and is partially excerpted below:

“Lovelace Deshotels [the murder victim] was a little black girl from the country who had big aspirations for herself and her family. She thought she’d made the big score, but you don’t like broads that slop down your booze and throw up in your pool, so you eighty-sixed her back to the geek circuit. Except you had a badass black girl on your hands that wouldn’t eighty-six… So what does a macho guy like you do when one of his whores gets in his face? He has a couple of his lowlifes take her out on a boat and launch her into the next world with the same stuff she’d already sold her soul for.”[17]

Following this highly prosecutorial speech, Robicheaux proceeds to threaten Seguro, saying that even if he doesn’t go down for the murder of the dead girl, Robicheaux will see to it that a search of Seguro’s car turns up enough drugs to warrant punishing Seguro harshly.[18] Almost triumphantly, Robicheaux announces his conclusion in a judicial manner. “Any way you cut it, your ass is busted.”[19] Immediately thereafter commences the gunfight in which Segura and another occupant of his car are killed.

That this conclusion was foreordained by Robicheaux when he set out to ‘question’ Segura is uncertain, but strong arguments can be made that such was the intended outcome all along. Robicheaux announces his reason for wanting to meet Segura again, but fails to try to accomplish that end while talking with Segura. Robicheaux recognizes that he has no particular authority to talk to Segura anyway, since Segura (and the homicide Robicheaux is investigating) is out of Robicheaux’s jurisdiction.[20] When Clete asks how Robicheaux would like to have the encounter go, Dave Robicheaux responds that the plan is to “run up the black flag.”[21] Finally, although Robicheaux and Clete only see a single weapon in the vehicle, and despite the fact that the weapon is in the hands of someone other than Segura, and despite the fact that Clete kills the man who pulled the gun immediately, Clete and Robicheaux continue to fire shots into the vehicle at an unarmed and clearly frightened Segura.[22] These types of encounters are far from uncommon for Dave Robicheaux, who calmly explains to his boss that these incidents aren’t his fault, and that “he didn’t deal the play.”[23]

Clete is much worse than Dave Robicheaux in terms of his violence, but rarely shows the initiative to use it without having Robicheaux tell him to take ‘care of things’ – given Robicheaux’s knowledge of Clete’s violent tendencies, assigning a task to Clete is an open invitation to use violence. In a scene from “Sunset Limited,” Robicheaux has asked Clete to deal with a criminal Dave Robicheaux identifies as a “small player in [the murder investigation Robicheaux is conducting].”[24] As per his usual habit, Clete ‘deals’ with the man (Scarlotti) with violence so brutal that it should warrant a warning label.

In the encounter, Scarlotti and his associate are eating a meal in a restaurant. Clete approaches them, and then proceeds to dump a plate full of scalding chipped beef into the associate’s face without provocation.[25] As Scarlotti rises in anger from his seat, Clete continues to beat Scarlotti’s companion, smashing an iron skillet into his face.[26] Scarlotti attempts to yell something at Clete, but Clete grabs Scarlotti by the front of his trousers and places vice clamps on Scarlotti’s testicles.[27] One might think that placing vice clamps on the genitals of an alleged criminal in a public restaurant would be the culmination of the encounter, but that line of thinking seriously underestimates the sheer capacity for lawless action undertaken by Clete in the name of good.

Clete drags Scarlotti, nearly mute with pain and rage, through the restaurant and down the sidewalk toward the flower shop owned by Scarlotti’s mother,[28] pausing only long enough to hit Scarlotti in the face a few times, and throw him to the ground. Finally, Burke’s narration explains that Clete – yes, Clete – reaches his breaking point and “los[es] it.”[29] Clete then smashes Scarlotti’s head repeatedly into a metal parking meter, while Scarlotti’s elderly mother watches from a few feet away, screaming.

Nothing in law can justify what Clete did with tacit consent from Dave Robicheaux. But both Clete and Dave Robicheaux appear to operate under a more intuitionist approach to doing moral justice. Waiting for the legal system to charge Scarlotti with a crime, prove that he committed a crime in a court to a judge and jury, and be sentenced by a competent authority puts a delay on the administration of justice, and in Clete and Robicheaux’s defense, justice delayed is justice denied. Justice is, after all, the spirit of the law, and as Earl Warren once noted, “It is the spirit and not the form of law that keeps justice alive.”[30] Dave and Clete appear to be operating under the idea that justice should be done immediately. The difficulty with this is in their understanding of what justice is. They do appear to be using the common definition as formulated in Part I, above,[31] and are evaluating an individual’s level of desert by their personal measure of whether the person is a ‘bad’ person. Given that evidence is rarely (if ever) provided to assert the guilt of individuals, whether the reader will feel that justice is done will depend on whether the reader accepts the blanket assertions of guilt offered by Robicheaux and his partner, Clete.

The independence from law exhibited by Robicheaux and Clete is not reserved for the guilty only. People Robicheaux feels are ‘good’ people tend to get free passes from him, even if they have done something wrong. In “A Stained White Radiance,” Dave Robicheaux is attempting to solve a mystery involving the family of Robicheaux’s ex-girlfriend. Dave, who still feels a profound sense of pity and goodwill for his ex-girlfriend, is put into a delicate position when she files a false police report.[32] The woman, Drew Sonnier, is afraid that Dave Robicheaux will discover that her brother is involved in some shady dealings, so purposefully injures herself and frames a well-known and infamous criminal.[33] The criminal is taken to jail, and nearly poisoned to death by his cellmates while there, which serves to make the knowingly false report by Drew that he had hurt her substantially more serious.

If Robicheaux were committed to law instead of his sense of justice, we should expect Dave Robicheaux to follow the rules and have her sent to be charged for her false report. As the reader will have come to expect, since Drew is a ‘good’ woman (just caught in a desperate situation), she will likely be simply forgiven for this transgression – a position reaffirmed explicitly by Dave Robicheaux, when he informs Drew that “If [she] and [her brother] weren’t [his] friends, both of [them] would have been in jail a long time ago for obstruction of justice.”[34]

More than simply not seriously investigating his ex-girlfriend’s false allegations, when he discovers that the allegations are clearly false, he advises her on how to cover her tracks so as to avoid prosecution. He tells her to quietly drop the charges she made against the local criminal,[35] say nothing to the police without a lawyer with her,[36] and to not even talk to him while he gives her this advice unless she wants what she says to be able to be used against her in court.[37] After essentially absolving her of her crime and telling her what to do to avoid being prosecuted for it, Robicheaux quietly ruminates on the difficulties of his job as he laments that he serves a “vast, insensate legal authority that seem[s] determined to further impair the lives of the feckless and vulnerable while the long-ball hitters toast[] each other safely at home plate.”[38]

Robicheaux’s desire to keep ‘good’ people from harm and cause ‘bad’ people to suffer can be seen in more than his ignoring the crimes of his ex-girlfriend. In some instances, Robicheaux and Clete plant evidence that leads to the downfall of some of the people they see as ‘bad.’ Further, Dave Robicheaux feels no difficulty admitting this practice to his wife, if not to his superiors at the stationhouse. When his wife asks him what he has done to deserve a cryptic phone call from Clete, Robicheaux responds, “Back at the First District, we used to call it ‘salting the mine shaft’... The wiseguys have expensive lawyers. Sometimes cops fix it so two and two add up to five.”[39]

When the Sheriff angrily questions Dave regarding his ‘salting the mine shaft’ (which amounted to having Clete plant a the severed head of a dead man in the trunk of a criminal’s car and then inform the local police about the location of the head), Dave confidently asserts that the man in whose car the severed head was planted was guilty anyway. Dave Robicheaux baldly contends, “The evidence was found on the right person, sheriff. There’s no way around that conclusion. You have my word on that.” That the evidence was tampered with, and that the authorities will remain silent while a man is charged for a crime based solely on the faith of Detective Robicheaux is correct in his personal assessment of guilt is a difficult pill to swallow, but the act perfectly encapsulates the approach to justice shown in James Lee Burke’s novels.

Trusting his own personal moral intuitions more than evidence, Robicheaux (and his partner Clete) founder on both of the twin difficulties identified by Alexandr Solzhenitsyn in Part I. Robicheaux does not have access to the objective guilt or innocence of the parties on whom he trains his personal sense of justice, but continues to attempt to do justice nonetheless. Further, he falls neatly into the second difficulty, believing that his personal moral intuitions are identical with the call of justice.

This particular view of justice is easily romanticized, despite its obvious difficulties. After solving the mystery of the novel, Robicheaux comments on his disappointment at being unable to pin a series of crimes on a particularly bad man (a politician who has strong ties to the Ku Klux Klan) – a man by the name of Bobby Earl. Robicheaux yearns for a simpler view of justice, and exposes the deep romantic understanding of the world that neatly divides people into a colossal battle between ‘good’ and ‘evil.’ “I had been determined to prove that Bobby Earl was fronting points for Joey Gouza, or that he was connected with arms an dope trafficking in the tropics. I was guilty of that age-old presumption that the origins of social evil can be traced to villainous individuals, that we just need to identify them, lock them in cages, or even march them to the executioner’s wall, and this time, yes this time, we’ll catch a fresh breeze in our sails and set ourselves on a true course.”[40] It is this concept – the simple and, therefore, beautiful idea that justice is easier to accomplish than we really know it is – that is so seductive. The concept itself is well-known and has a fairly well-documented history.[41] People desire to make changes in the world (to do justice), but do not enjoy the prospect of accidentally doing injustice because they make the kinds of mistakes that Solzhenitsyn identified in Part I, above.[42] Therefore, they submit themselves to simpler views of the world and instead seek to abandon the complexities of their lives in an effort to embrace the simplicity that would make them heroes.[43] Dave Robicheaux exemplifies this type of thinking, and it is this type of view of the world that is upheld in James Lee Burke’s novels as being appropriate for heroes.

III JUSTICE IN THE EYES OF EASY RAWLINS

The novels of Walter Mosley reveal an understanding of justice substantially different from that of James Lee Burke. This section will examine the concept of justice used in three of Mosley’s works: “Devil in a Blue Dress,”[44] “A Little Yellow Dog,”[45] and “Little Scarlet.”[46] Mosley’s novels follow the life of a private citizen named Ezekiel “Easy” Rawlins. Contrary to justice as practiced by James Lee Burke’s Dave Robicheaux, Mosley’s Easy Rawlins has ‘justice’ practiced upon him. To put it bluntly, Easy is the type of ‘shady character’ on whom Dave Robicheaux or others like him might try to have justice done. As a young, black man during the 1940’s-1960’s, Easy experiences firsthand the difficulties that accompany the actions of independent justice-seeking police officers.

A reader’s first understanding of Mosley’s concept of justice is found in “Devil in a Blue Dress.” Easy Rawlins, desperately needing money to make payments on his mortgage, accepts an offer to make a substantial sum of money by finding a missing woman (missing by choice) for an unscrupulous character named DeWitt Albright.[47] After expressing some hesitation to take the job offered, Easy Rawlins has a candid conversation with Mr. Albright regarding the nature of justice.[48]

Easy feels uncomfortable about whether finding the girl in question will get him mixed up with police officers and the sentiments which motivate them. DeWitt Albright replies that the system and all of its faults “is made by the rich people so that the poor people can’t get ahead”[49] – a sentiment with which Easy Rawlins readily agrees. Easy, still unable to shake his suspicion that he’s getting into something over his head, makes his particular difficulty even more clear. “It’s just that I’d hade to find her and then have some cop come up to me with some shit like I was the last one seen around her – before she disappeared,” Easy remarks. In both an excuse and a thinly veiled bodily threat, Mr. Albright replies that “[t]hings happen every day,” and that “[p]eople with everything to live for… had it all planned out what they’d be doing this weekend, but that didn’t stop them from dying.”[50] The idea that Easy is getting involved in something that might end up with the woman he’s sent to find being another statistic on the morning newspaper headlines doesn’t deter him from finally accepting the job, and he gratefully takes the stack of bills offered by DeWitt Albright to seal their deal.[51]

Although Easy sets aside his personal reservations and fears about what he might be getting involved in, a plausible argument can be made to suggest that Easy, in his carelessness, put himself in a prime spotlight to get himself involved with police officers who want to see ‘evil’ people pay for crimes just as much as did Dave Robicheaux. Unfortunately for Easy, the police officers’ views of who is good and who is evil is guided by their moral intuitions (just as were those of Detective Robicheaux). Needless to say, the moral intuitions of white police officers in the late 1940’s are different from the moral intuitions of Dave Robicheaux, but the difference – the overtly racist undertones and attitudes of the officers in Mosley’s works but absent in Burke’s novels – is a difference that highlights one of the prime difficulties with placing justice-doing authority in individuals rather than in the law: our moral intuitions can be colored by the environments in which we are raised.

The police officers are rarely friendly toward Easy during their frequent interactions, and Easy’s friends do not appear to fare better with the police. The racism involved in such episodes clearly motivates the manner in which officers treat Easy and his peers. Easy’s first interaction with the police in “Devil in a Blue Dress” is a good representation of the habitual treatment that Easy has received for much of his life.

After the girlfriend of one of Easy’s friends is found beaten to death (a night after Easy consummated an adulterous affair with her), Easy is approached at his home as he prepares to enter the front door.[52] The two officers who are there to talk to Easy order him to follow them,[53] but won’t tell him where they are going.[54] They refuse to tell Easy whether he’s being arrested.[55] When Easy protests that he has the right know where he is being taken, the officer makes his belief about Easy’s innocence absolutely clear when the officer states, “You got a right to fall down and break your face, nigger. You got a right to die.”[56] The officer then proceeds to beat Easy into submission before placing handcuffs on him.[57]

When Easy writhes uncomfortably in the back of the police cruiser as a result of the beating, one of the officers warns him that if Easy vomits in the police car, the officers will make him eat it off the floor.[58] Easy understood how to play the standard game that police officers played with black people – the officers would leave black people in the local holding cells for a while to sweat some fear into them, then would interrogate them to try to find out if they’d done anything bad.[59] In this encounter, though, Easy worries that they aren’t sweating him as a fishing expedition.[60]

Easy narrates his internal monologue and explains why he’s likely to be a victim of police independence and ‘justice-seeking.’ “I was worried because [the officers] didn’t follow the routine… I would try to look innocent while I denied what they said. It’s hard acting innocent when you are but the cops know that you aren’t. They figure that you did something because that’s just the way cops think, and you telling them that you’re innocent just proves to them that you have something to hide. But that wasn’t the game that we were playing that day. They knew my name and they didn’t need to scare me with any holding tank; they didn’t need to take my fingerprints. I didn’t know why they had me, but I did know that it didn’t matter as long as they thought they were right.”[61]

Despite Mr. Rawlins absolute cooperation with the police, their independent judgment that he must be lying allowed the officers to engage in brutal interrogation tactics clearly outside the scope of legal questioning. When Easy asks for clarification about what day the police are asking about when they question him regarding whether he has an alibi, an officer kicks Easy in the chest so hard that Easy (and the chair he is sitting in) are bowled over backwards.[62] When Easy tells them where he was and what he was doing, providing the alibi the police had requested, an officer punches Easy on the side of his face.[63]

As a supreme threat of violence (after already showing that they were more than capable and willing to use violence against Easy), the officers threaten that Easy is in so much trouble that they might just “take [his] black ass out behind the station and put a bullet in [his] head.”[64] When Easy begins to tell the officers anything about his life that he can think of, hoping that he’ll stumble across whatever the officers want from him, one of the officers flies into a rage, screaming racial epithets.[65] The officer, still in the grip of his rage, begins to beat Easy with abandon. Luckily for Easy, Easy manages to grapple with the officer and pin him to the floor.[66] Unfortunately for Easy, the other officer in the room then trains his pistol on Easy and orders the two combatants to part. To top things off, when the officers finally release Easy, he is left with no way to get back to his home without walking the distance across the city.[67]

Easy repeatedly has run-ins with the police in which these scenes of violence are repeated or referenced. The unjustified violence and law-breaking behavior of the police officers results in frequently tragic consequences for Easy and his friends. Following the same murder of the girlfriend of Easy’s friend, Dupree, Dupree is taken to the police station and interrogated roughly. When Easy sees him, Easy recognizes that Dupree has been beaten just as savagely as was Easy himself.

Easy recognizes that he has a history with the police and because of this history, has no particular interest in experiencing ‘justice’ at the hands of police officers in the future. In his mind, Easy comments about that history and his reluctance to engage people who might involve him in criminal activity. “But I wasn’t feeling honest. I had a long history with the police – and it wasn’t pleasant.”[68]

That unpleasant history continues in Mosley’s “Yellow Dog.” In “Yellow Dog,” Easy is suspected of being involved in several murders when bodies start showing up at the school in which he works as a janitor. The police attempt to interrogate Easy in his office in the school during school hours.[69] Easy arouses their suspicions further when he declines to tell the police the whole truth about certain conversations he’s had with a friend who’s gone missing.[70]

Easy complains that “[c]ops don’t mind pushing around men like me. That kind of pushing was part of their job.”[71] In a slow change from the moral intuitions of the justice-seeking officers of the 1940’s and ‘50’s showcased in “Devil in a Blue Dress,” the officers in “Yellow Dog” show themselves to be less concerned with race than their predecessors decades before, once again highlighting the fact that moral intuitions can shift depending on the times. Easy continues to describe the police officers tactics against him by pointing out this very change by saying, “It didn’t matter that [I] wasn’t a white man. Cops is a race all its own. Its members have their own language and their own creed.”[72]

Even though race might not play as big a role in the police independence as it had a few decades prior, the police depicted in Mosley’s “Yellow Dog” were still willing to place their own views of what constituted justice above the laws. When Easy is pulled into a police lineup and the witness fails to identify Easy,[73] the police still were willing to finger Easy for the murders under investigation and send him to the holding cells.[74] The cops even took the time to point out to Easy that the holding cell he’d be staying in held a vicious criminal who was currently being held for an especially violent offense.[75]

Rounding out a historical progression of Mosley’s views on racism, “Little Scarlet” involves several more interactions with the local law enforcement authorities, but unlike prior encounters, this time the police officers need Easy to help them solve a crime,[76] and can’t risk appearing to let racial politics enter into their actions for fear of setting off a serious race-riot. While the police officers clearly don’t like having to rely on Easy Rawlins to do their work for them, the situation demands that they do so.[77] The police still don’t like having to cooperate with Easy, and refuse to tell him where he is going, what he’s going to be doing, and who’s involved in the investigation when they first pick him up, despite his repeated requests for that information at the time.[78] Bolstered in confidence by his newfound status, even if it is only a temporary boost caused by circumstance, Easy Rawlins goes so far as to tease a police officer by taking a preferred chair in a conference room.[79] Easy immediately recognizes that he’s gone too far, and is only saved by the harsh voice of the offended officer’s superior ordering the man to sit down so that they could start the meeting.[80] Easy soberly reflects that “[i]f we were alone he would have drawn his pistol, I’m sure.”[81]

Fundamentally, there is little difference between the methodology of the police involved in Mosley’s stories and that of Detective Dave Robicheaux – both follow their intuitions instead of the law in an effort to do what they see as good. Each ends up causing bad consequences for those they deem as ‘bad,’ and allows frequent latitude with those whom they deem to be ‘good.’ The only real difference between the police in Mosley’s works and the protagonists in Burke’s works is that Burke’s detective has moral intuitions more in tune with a majority of modern readers’ upbringing.

IV PLATO, RAWLS, AND RESOLUTION

The question then faces the reader:
When faced with a situation in which a violation of the law may produce justice, ought one to violate the law?

Clearly, American history provides examples which serve to suggest that the answer is a clear ‘yes.’ Dr. Martin Luther King, Jr. repeatedly violated the law, and urged violation of the law, in support of following a higher, moral law – a law that would ensure justice.[82] Nonetheless, significant argument with substantial history behind them have been offered against this position.

Many of these arguments come from social contract theory. Social contract theory has many incarnations.[83] Social contract theory posits that individuals must do as their sovereign bids them because the individuals have consented to receiving the benefits of living in their society. This attitude is seen quite explicitly in the analysis given by the character of Socrates in Plato’s Crito.[84] In Crito, the character of Socrates has just been unjustly convicted by an Athenian tribunal for heresy and corrupting the youths of Athens with his ideas.[85] As the dialogue unfolds, Socrates is found sitting in his cell awaiting his execution. His friends, under the guise of visiting their doomed companion, reveal that they have planned an elaborate escape for Socrates that will save his life by smuggling him into exile. If Socrates follows their plan, he will end his days living in a Greek City-State far to the north of Athens, but if he declines their plan, he will pour hemlock into his ear as decreed by the Athenian court.

Socrates chose the latter, claiming that he is bound to the will of his government, under a most sacred duty, because he had consented to all actions taken by his government that benefited him, even when those actions had harmed the individual interests of some other citizen.[86] How, without being supremely selfish, could Socrates ever decry the actions of his government?
The view that it is always, or nearly always, wrong to violate established law, even to do something you think is right, has adherents outside of the ancient Greeks.

Provided that laws were arrived at in a fair manner, political-philosopher John Rawls argues that individuals must submit to law. “It will be recalled that this principle [fairness/justice] holds that a person is under an obligation to do his part as specified by the rules of an institution whenever he has voluntarily accepted the benefits of the scheme or has taken advantage of the opportunities it offers to advance his interests…”[87]

In reality, the view that law should be violated to serve a higher goal is a dangerous precedent. Because humankind does not have access to objectivity to make our own moral decisions, and because we frequently confuse our own moral intuitions with the objective ‘good,’ allowing individuals to supplant law with their view of justice is like leaving the fox to guard the henhouse. The potential for tyrannical abuse is great, particularly when it may be tinged with hatred, jealousy, greed, racial animus, or any number of other damaging influences created by the times in which the moral actor lives. Permitting such deviations from law sets an ugly precedent that can be used to accomplish all manner of abuses in the name of justice. In the end, we must reject the idea that doing justice in the short term is a laudatory goal. Only by following the law, and not our own personal conceptions of justice, can society move away from anarchy and toward the common good.

[1] JOHN RAWLS, A THEORY OF JUSTICE 3 (1999)
[2] See, John Arthur, Equality, Entitlements, and the Distribution of Income, in MORAL PHILOSOPHY 705 (George Sher, ed., 1996).
[3] Id. Desert is the philosophical concept that refers to the degree to which an entity deserves some outcome.
[4] Jone Johnson Lewis, Alexandr Solzhenitsyn Justice Quote (2006), at http://www.wisdomquotes.com/000467.html.
[5] See generally , MATT RIDLEY, THE ORIGINS OF VIRTUE (1998), and DAVID GAUTHIER, MORALS BY AGREEMENT (2006).
[6] See, Lewis, note 4, supra.
[7] JAMES LEE BURKE, THE NEON RAIN (1987).
[8] JAMES LEE BURKE, SUNSET LIMITED (1998).
[9] JAMES LEE BURKE, A STAINED WHITE RADIANCE (1992).
[10] See, BURKE, supra, note 7, at 83-85.
[11] Id., at 86.
[12] Id., at 87.
[13] Id., at 81.
[14] Id.
[15] Id., at 85.
[16] Id., at 85-86.
[17] Id., at 85-86.
[18] Id., at 86.
[19] Id.
[20] Id., at 81.
[21] Id., at 83.
[22] Id., at 87.
[23] Id., at 91.
[24] See, BURKE, supra, note 8, at 169.
[25] Id., at 166.
[26] Id.
[27] Id.
[28] Id.
[29] Id., at 187.
[30] Jone Johnson Lewis, Earl Warren Justice Quote (2006), at http://www.wisdomquotes.com/000467.html.

[31] See, Part I, supra. Justice is defined as the state in which the benefits and burdens of life are arranged according to an individual’s desert.
[32] See, BURKE, supra, note 9, at 210.
[33] Id., at 211-13.
[34] Id., at 210.
[35] Id., at 212.
[36] Id.
[37] Id.
[38] Id., at 213.
[39] Id., at 269.
[40] Id., at 302.
[41] See generally, ERICH FROMM, ESCAPE FROM FREEDOM (1941).
[42] Id.
[43] Id.
[44] WALTER MOSLEY, DEVIL IN A BLUE DRESS (2002).
[45] WALTER MOSLEY, A LITTLE YELLOW DOG (1996).
[46] WALTER MOSLEY, LITTLE SCARLET (2004).
[47] See, MOSLEY, supra, note 43, at 62-68.
[48] Id.
[49] Id., at 64.
[50] Id., at 65.
[51] Id., at 65-66.
[52] Id., at 113.
[53] Id., at 114.
[54] Id.
[55] Id.
[56] Id.
[57] Id.
[58] Id.
[59] Id., at 115.
[60] Id.
[61] Id.
[62] Id.
[63] Id., at 117.
[64] Id.
[65] Id.
[66] Id.
[67] Id.
[68] See, MOSLEY, supra, note 44, at 24.
[69] Id., at 71.
[70] Id., at 73.
[71] Id., at 142.
[72] Id.
[73] Id., at 153.
[74] Id., at 153-54.
[75] Id., at 154.
[76] See, MOSLEY, supra, note 45, at 9-20.
[77] Id., at 12-13.
[78] Id.
[79] Id., at 21-22.
[80] Id., at 22.
[81] Id.
[82] Nobel Prize Foundation, Biography of Martin Luther King, Jr. (1972), at http://nobelprize.org/nobel_prizes/peace/laureates/1964/king-bio.html
[83] Jean-Jacques Rousseau, On the Social Contract, in The Basic Political Writings 144 (Donald A.
Cress ed. 1988); John Locke, Second Treatise of Government (Richard Cox ed., Croft Classics, 1982); Thomas Hobbes, Leviathan (A.P. Martinich ed., Broadview Literary Texts, 2002); Plato, Crito, in The Trial and Death of Socrates: Four Dialogues 43 (Shane Weller ed. 1992).
[84] Id.
[85] Id.
[86] Id.
[87] See, RAWLS, supra, note 1, at 301.

Fiction, Mood piece: Pathos

2008-02-22T21:39:00.000-08:00

I’m 27, and I miss sleeping.

I’ve always been sort of an outsider, I guess you could say. My parents moved around a lot when I was a child. I don’t blame them for it; transferring to new jobs that paid better meant being able to provide a better life for my brother and I, but still… even though I laud their motives and know I’d probably make the same choice if put in their position, I never really got used to being forcibly ripped away from all of the things that I found comforting, time and time again.

It’s hard, when you are a kid, to come to a new town, a new neighborhood, or a new school, and it gets you from both sides. Not only do you have to say goodbye to old friends whom you’ll likely never see again, and say goodbye to the places where you made happy memories together, but it also sucker-punches you upon arrival. You’re ‘the new kid.’ You speak a little differently. You dress a little differently. You don’t get the inside jokes that have been circulating in your classes for years. You are smarter, or dumber, or different in so many tiny ways that might be imperceptible to adults – but not to children.

Children notice, and until you become one of them through assimilation, children hurt.

I suppose I started turning away from social situations and away from making friends at a younger age, and as a result of trying to escape children’s relentless mocking, I turned my mind inward. While other children played tetherball, four-square, or wall-ball, I sat against the edge of the building and made up my own games in my head. It wasn’t as fulfilling as playing with other kids, but at least it was safer.

Fast-forward some eighteen-odd years. I’m intelligent – graduated with honors from my doctoral program and completed some post-doctoral education too. I’m successful – I own my own business. I’m working on building the life that I always pictured in my head – I’m writing my novel, continuing my torrid love-affair with completing additional college credits, and feeling more healthy and fit that I have in years. But I’m also desperately lonely and have the vast majority of my conversations silently inside my head. The bulk of my non-internal social interaction comes from my one-sided conversations with my pet cockatiels, half of whom are still so afraid of me after six months that they flee to the opposite side of their enclosure when I approach unless I’m holding treats in my hands. I don’t have any long-term friends, and a recent move across the country to a new home has only isolated me more. I’m 27, and I’m alone.

I like myself. I’m talented, imaginative, polite, urbane, educated, and mentally stable. I don’t condone or engage in violence, show compassion for those weaker than myself, and regularly engage in volunteer service. I have a marvelous singing voice that a music teacher once told me could be the basis for a solid career in classical vocal music, and I like to think that I have a certain ‘voice’ of my own when writing. I am a fair hand at both interior decorating and flower arrangement, and because of my broad education I like to think I have something intelligent to say on almost every issue. Heck, I’ve even saved a life (even if you don’t count my regular trips to the blood bank). I’m stylish, even if conservative in my apparel – and always ensure that I look nice, even if I feel empty inside. Despite liking myself and almost every aspect of my life, other people don’t relate well to me.

Social interactions seem to follow a pattern. From what I read and seen, many young kids in high school have experimented with sex. Sometime in college they start having meaningful relationships, and shortly after college, they get married, and start families. Some move faster; some move slower - but the timeline doesn't usually budge more than a half-dozen years or so. Most of my acquaintances from high school and college have already gone down this path, or are in the process of doing so. They have wives, husbands, and young children. I want to do this... to have this, too. I stayed in college for an extra year, entered a graduate program, and even attained some post-doctoral education all hoping to stumble across the woman who makes me feel truly alive. I’ve never found her. I’ve never known a woman to flirt with me, or even have a ‘schoolyard crush’ on me. I’ve only had one relationship that lasted for six months, and I gladly accepted her ‘trust’ issues without complaint, because she was at least a woman who was willing to spend time talking to me. It was only after four months of dating that she trusted me enough to hold my hand. When I shyly tried to kiss her cheek one night after a date, she broke up with me, saying I was moving too fast for her. I’m 27, and I’ve never kissed a woman.

My only real joy is found inside my head. When I sleep, my mind gives me what life has not. She’s always different in the brief bits that I can remember. Sometimes she’s tall, sometimes short. She’s blond, brunette, raven-haired, or red-headed. She has freckles and green eyes, or maybe they are clear baby-blues. Once they were even lavender. I don’t ever know her name, but when I'm there, in that nonexistent place, I don't need to. All that matters is how she acts and how that makes me feel. She’s playful, sweet, and accepting, and when she turns her eyes on me, it’s like she’s making a secret joke that only the two of us understand. Her smile is overpowering. When she looks at me, laughs with me, hugs me, and tells me that she’ll always be there for me… with me… there’s a rushing sensation, lightheadedness, and strange sort of feeling – almost as if you were falling from a great height down, down into her eyes. And you can’t look away – even if you wanted to.

Sometimes, she forsakes things for our love – family, money, power. Sometimes I leave everything behind to revel in pure unbridled joy of being near something so… adorable. Sometimes we marry. Other times we simply sit together beside a fire, have dinner in a restaurant, or lie on a couch talking while she rests her head on my chest and I stroke her hair.

And then I wake up. I should be thinking of putting on my suit and tie, driving down to my office, pasting a fake smile on my face, and immersing myself in my work. Instead, I’m lying alone in my bed, in my rented room, with the silvery sound of her giggles still echoing in my ears, and tears welling up in the corners of my eyes. I wasn’t ready to say goodbye, and in the shadow of my rapidly receding dream memories, the world seems a little colder and a little greyer.

I’m left wondering if somewhere out there, she’s having the same dreams. She looks forward to our next meeting, even though she can’t quite see me clearly. She wants to know where we’re going on our next date, what we’ll talk about, and whether I’ll finally find a way to let my subconscious kiss her.

I’m 27, and I just want to be happy.

Happy, like I am in my dreams.

UDK article on cultural relativism

2007-12-30T00:18:00.000-08:00

Originally Titled: Cultural Relativism abandons moral progress
Titled in Print: Ethnocentrism forsakes Morality
University Daily Kansan
March 5, 2003

Anthropology is not my cup of tea. I’ve taken one anthropology course in my time at the University of Kansas and I’m still enrolled in it, but my experience with the course tells me that the discipline is not suited for me.
The instructor warned us in the first few days of class not to come into the course with notions of measuring the African nations that we would study because comparisons were meaningless.
I realized that Anthropology had moved away from its traditional status of chronicling the details of other cultures, to having some sort of ethical fervor behind it. Moral language was used to describe other cultures, and the phrase “It’s right for them,’ was heard on occasion. It is now not only a standard of the field not to criticize other cultures, but a tenet that it is morally wrong to do so.
This is a common view in contemporary American society. Traumatized by accusations that we are cultural imperialists, many academics have embraced the idea that all other cultures are immune to critique and put moral weight behind the idea that each social grouping is just as good as another. The Kansas was even accused of ethnocentrism for a “Tongue in Beak” article recently, for which it apologized.
Underlying the claim that we should not criticize other belief structures is a fundamental world view that all systems of belief are equally valid. This is fallacious reasoning, and it must be rejected. We must reserve the right to use any means, even one as volatile as humor, to critique other cultures.
If we accept that all cultures are equally valid, we are committed to positions that I’d be afraid to see people support. German anti-Semitism in the 1930’s and 1940’s, including Hitler’s “Final Solution,” are merely expressions of a different, yet equally valid, moral code. Some African cultures whose reliance on spirits and witchcraft to heal disease, while rejecting the biological basis of health, result in the deaths of hundreds of thousands, and that’s OK. We could even posit a society that smiles on the practice of serial infant-raping, and we’d be unable to argue against it.
This form of cultural relativism doesn’t allow us to criticize others. It also denies us the ability to criticize ourselves.
When we act as though all beliefs were of equal validity, then we lose the concept of progress. If we cannot compare two contemporaneous societies against each other, then why can we compare them over time? The elimination of slavery on the basis of race becomes simply dry and dusty description, rather than moral progress.
Ethnocentrism is a bad thing. We shouldn’t assume that our own culture is somehow better than another. Argument will be required to show that certain aspects are better if, indeed, they are, and that’s questionable. This position does not entail, though, that we are forbidden to examine the practices of others.
Some people would accuse me of being a cultural imperialist, but note that there have been no claims that American culture is the best in all regards. We had N’Sync, ‘The Bachelor’ television series, and so much advertising that, according to National Geographic Magazine, young children can name more brands of beer than they can U.S. Presidents. And that’s not to mention the state-sponsored terrorism we carry out regularly.
At some point, people need to realize that no one’s beliefs are 100 percent correct, and that everyone, including this author, are fair game for criticism.
Just because we are all fallible doesn’t mean we are all right.

UDK Article on Ninth Circuit Court decision

2007-12-24T03:51:00.000-08:00

Originally titled: Unpopular Court Decision Supports Liberty
Titled in Print: Ninth Circuit Court decision makes U.S. seem hypocritical
University Daily Kansan
March 28, 2003

There has been much misunderstanding about a controversial ruling by the 9th U.S. Circuit Court of Appeals. The court ruled that recitation of the Pledge of Allegiance, when led by teachers, was an unconstitutional act. Since that day, the ruling has been misconstrued by the lay public to mean that anytime anyone said the pledge, it was somehow an unconstitutional act. This is not the case.

The United States enjoys freedome of religion because of a small phrase in the Constitution that says, "Congress shall make no law respecting the establishment of religion." This phrase does not mean that Congress is only to avoid establishing a national church. It says that Congress shall do nothing that could be seen as a national endorsement of a particular religious creed.

Does the United States seem to any casual observer to endorse religion? Yes. We may give lip service to the idea that we have freedom of religion, but how free are we?

May courthouses across the United States, including teh Supremem Court, are fighting to keep up large displays of the Ten Commandments, citing them as the basis of our laws - as if we would never have figured out that it was a bad idea to kill one another. But consider Hinduism, a polytheistic religion: when the local government tells you that the laws you live under are based in an ancient document that commands you to have no other God before the God of the Bible, what does that say about your beliefs?

Congress opens with a prayer. "In God we Trust" is printed on our national money. Students were formerly forced to recite the Lord's Prayer and study scripture in public schools. There is nothing wrong with statements of religious beliefs, but to insert them by legislation into the public sphere is to give the government's stamp of approval, or endorsement, to a particular type of religion.

The 9th Circuit Court of Appeals ruled taht, when a teach leads the class in saying the Pledge, you are free not to say it with no mandated school punishment - but you are still not free. Psychological coercion plays a role in what we say and do, from the way we dress to the things we do on Friday nights. Children with minority religious viewpoints who are faced with a school full of peers and choose to refuse saying teh pledge open themselves up for ostracization and isolation. Most young children will choose to compromise their beliefs rather than face teasing and ridicule.

There is no way around it. "Under God" is a religious statement that establishes the existence of a deity and says that said deity is the sole god that watches over us. As a person of a minority religious viewpoint whose people have been persecuted for centuries, including one of the worst cases of religious intolerance in all of Western history, I now what it is like to be looked down on for being different. The pressure to conform, at least in deed, is enormous.

Ruling the phrase "Under God" in the pledge unconsitutional does not diminish the free exercise of anyone's political rights. All people, including me, are free to recite the pledge, the Lord's Prayer or scriptural passages, whenever and wherever they like, including public school buildings. The Constitution only prohibits that the goverment appears to be endorsing what I say while reciting one of those.

To have a government free from endorsement of religion is the only way to preserve the beautiful religious traditions of our country. It is not political correctness run amok; it is the necessity that allows religious persuasion, from Jew to Muslim to Buddhist to Religious Humanist, to practice their religion with the dignity that befits all religious practices. By taking this unpopular position, I, at least, will support "liberty and justice for all."

M.D.

Thesis for course on Indigenous People's Law

2007-12-23T02:57:00.000-08:00

At What Price?:
Resistance to bioprospecting in cell lines derived from indigenous populations and the human cost of inaction

M. D.
Thesis: Law of Indigenous Peoples
Professor A. O., 04/24/07

“We’ve discovered the secret of life.”[1]
--Francis Crick, co-discoverer of the DNA molecule, February 28, 1953

I. INTRODUCTION

Since the discovery of DNA in 1953, genetics has been the frontier of medical research, and the locus from which hope could spring eternal for millions of desperate people. In the intervening half-century between its discovery and today, the biological text of humanity has slowly, but surely, revealed to researchers its secrets. So much of our DNA is understood that, as humanity marches through the beginnings of the twenty-first century, we are in a unique position to alter our very natures.[2] That such advances herald the dawning of a new era of medicine is certain. That such a new era spells relief for present and future sufferers of a whole range of diseases that have genetic bases is also certain.[3] What is uncertain is the extent to which humankind is willing to sacrifice certain values to achieve these ends.[4]

The cultural battles between those advocating the responsible use of scientific advances in genetics and those advocating a moratorium on the use of such new technologies has a storied history. Genetically altered plants and animals, human-created bacterial species, the use of embryonic stem cells, therapeutic cloning, and assisted reproductive technologies have all been met with popular resistance. This policy disagreement concerning the appropriate uses of scientific knowledge and technology has also taken shape in an arena less well known than those mentioned above: bioprospecting.[5]

Bioprospecting[6] is objected to on numerous grounds by indigenous communities around the globe, for a variety of reasons which will be explored in this paper. This article will focus on the harvesting and acquisition of cell lines derived from the genetic material of indigenous communities – a practice which has garnered strong opposition – and will chart some of the obstacles that the international community has placed in the path of researchers seeking to pursue scientific work in this arena. It is the contention of this paper that barriers erected against bioprospecting by indigenous groups, states, and international organizations violate fundamental human rights, and that this resistance to bioprospecting must end.

The truth of this conclusion will be shown in the following sections. Part II of this paper will give a brief sketch of the main arguments presented both by scientists and indigenous people regarding the practice of bioprospecting. Following these arguments, parts III and IV of this article will attempt to explain why positive application of international instruments in this arena yields little fruit. Part V clearly explicates the difficulty with applying extant international instruments to this issue, and provides an analytical framework for determining whether bioprospecting should be allowed or prohibited. Finally, Part V will also utilize this analytical framework and explain how to navigate this ambiguous legal landscape by charting an argument sounding in international law and natural law which should serve to remove the current barriers to research.

II. BACKGROUND: Scientific Interest and Indigenous Objections

A. Scientific interest in the genetic resources of indigenous communities

Scientific researchers are highly interested in the untapped sources of knowledge and genetic potential of indigenous communities. Investigations into their pharmacological understandings of the plants and animals around them have produced results that are astonishing, both for their utility and profitability. It would be warranted to suggest that these scientific and medical researchers have only scratched the surface of what indigenous communities can teach us with their less-advanced chemical and pharmaceutical understandings. Among the results produced so far are examples like the following:

Quinine, a chemical used to cure cases of malaria, was discovered from the medical lore of Andean natives.[7] This drug has been successfully used to combat rising death tolls due to malarial parasitic infections, in large part due to the declining usefulness of previous anti-malarial drugs.[8] A plant native to Madagascar, the rosy periwinkle, contains a chemical found to effectively combat certain types of cancer,[9] an important find for those suffering from cancer.[10] Indigenous communities in India have used parts of the neem tree as a natural insecticide, and the juice from the tree has been successfully used to treat scabies and other skin disorders.[11] Ethiopian tribes revealed to Western pharmaceutical companies the productive uses of the endod berry, and it has been used to treat certain parasitic infections as well as creating a crustacean-killing agent which may end the zebra mussel invasion which threatens the marine ecosystems of the Great Lakes.[12] A pair of African plants produces a sweetening agent thousands of times sweeter than sugar, but which is calorie-free,[13] holding a potential key for lowering obesity. Dozens of other significant advances, including disease resistances for staple crops and plants that produce natural insecticides,[14] have been discovered in the farming and medical lore of indigenous peoples.[15]

Examining the genetic material of peoples native to indigenous communities is a newer form of bioprospecting, and so discoveries in this arena are not yet as prevalent. Nonetheless, significant findings from this type of research have offered substantial hope for the future of research on the genetic diversity of the human species. A particularly noteworthy discovery was the finding that a part of the genetic code of members of a Papua New Guinean tribe might be able to confer a natural resistance to adult leukemia,[16] a finding that should cause hope for future generations.[17]

While the entirety of the human genotype is of interest to researchers seeking to understand and combat disease, the genetic material of indigenous communities possesses unique and special properties which allow specialized types of research that are not able to be carried out with genetic material from dominant populations. Both random and non-random mutations (both beneficial and deleterious) alter DNA between generations, and in the absence of selection pressures which eliminate members of a population the population will undergo what is known as genetic drift.[18] Smaller populations are more prone to this effect than are larger populations.[19] Further, indigenous communities are more likely to have genetic differences from dominant, larger populations due to their isolation – something known as the “founder effect.”[20] These two factors have created in indigenous people a genetic code different from that of dominant groups, allowing for useful comparative study. In short, indigenous communities, because of their size and usual genetic isolation, are tailor-made for genetic research concerning the genetic bases of diseases. Because of this unique utility, self-replicating cell-lines[21] derived from this genetic material possess nearly unparalleled research potential.

B. Objections of indigenous communities to cell-line bioprospecting

There are numerous objections that indigenous communities level at the practice of bioprospecting, ranging from the plausible (difficulty in identifying the purposes of researchers after DNA has been sent to cell banks that lend material to researchers across the globe) to the highly unlikely and far-fetched (forced sterilization for those carrying particular genes, and genetically targeted bio-warfare).[22] This article will not attempt to deal with every objection made against cell-line bioprospecting, but ink spilled to recognize some of the more plausible objections is not ink wasted. These arguments range from the inadequacy of compensation for genetic materials harvested from individuals in indigenous communities to broad denunciations of commodification of the natural world. The different types of arguments appear to be able to be divided into two categories: those which object to the manner in which commodification of the genetic material takes place, and those which object to the commodification of the genetic material itself. Each will be addressed in turn.

Many arguments from the first category of objection (those which object to the manner in which commodification takes place) will merit serious consideration from a Western legal standpoint. Some groups are concerned with the adequacy and reliability of compensation being paid for the harvesting of genetic material. International protocols regarding scientific research involving human subjects requires that the benefits to the subject at least equal the risk to the research subject.[23] Typically, since the beneficiaries of the research are not specifically the indigenous people of the community, researchers offer other benefits as an incentive to participate in the research – short-term medical attention, technology transfer, training opportunities for students, or promises of royalties for any commercial products developed from the research.[24] For an indigenous community to accurately track the resultant commercial applications of research on an international scale to watch for violations of a royalty agreement is surely difficult.[25] Finding a way to gain redress for violated agreements can be difficult, and frequently monetary damages are the only available remedy – a frequently unsatisfactory result for some groups.[26]

A second argument advanced against cell-line bioprospecting by indigenous communities relates to the overall balance of benefits created by research on their genetics. Having experience with bioprospecting in other areas (such as those listed above in Part II.A), indigenous communities realize that some of their knowledge has created vast amounts of wealth for Western companies,[27] while yielding very small accretions to wealth for the indigenous communities themselves.
This first category of arguments is quite cogent. Unless paid for participation in research in advance, finding remedies for breaches of participation agreements can be a time-consuming and expensive process. Even when agreements are made and upheld, hindsight can frequently cause indigenous communities to feel as if they have been taken advantage of in the negotiation process, due to the relative paucity of their compensation. These arguments are parsed in typically Western understandings of commercialization and capitalism, and are easily grasped.
The second category of arguments objects to cell-line bioprospecting itself (as opposed to the first category which objects to the processes by which commodification takes place). As a result of these arguments’ metaphysical and ontological natures that do not have close parallels in traditional Western thought, these arguments are frequently more difficult for Western audiences to understand. Nonetheless, these arguments are just as important and serious to consider as those from the first category.

To some indigenous cultures, the human body (and parts thereof – blood, hair, etc.) is sacred.[28] To invade the body in the name of research, or to take samples of hair or blood (common ways to obtain DNA for cell-cultures), is seen as a violation of ethical principles of the highest order. Apart from the harvesting of these materials, the use of these materials can be just as affronting to tribal sensibilities.[29] Creating cell-lines (which, absent outside negative intervention, are able to self-replicate forever) is akin to creating immortality. Introducing genetic material from one organism into another (the ultimate hope with regard to genetic engineering)[30] could violate the sanctity of the holistic nature of living things.[31] These concerns are warranted and worrisome for those indigenous peoples who highly value that which is natural.

Other groups find themselves at odds with genetic science altogether, in light of the mechanistic view the science takes of living organisms.[32] By viewing the living organism as an input/output device (change the DNA sequence, observe the result for changes), scientists might be endangering the delicate balance of nature. If living things are viewed as interrelated with everything else in an environment, the existence of ‘ripple’ effects from tampering with one part of an environment might occur.[33]

Absent traditional European concepts of individualized property ownership, some indigenous communities find the concept of alienating their genetic material to be foreign,[34] meaning that ‘consent’ obtained from individuals for their participation may not be fully informed. Some groups do not hold the concept of alienability of knowledge or genetic material to be a matter of individual consent, and require group consent to such transferals.[35] Some object to the transfer of some types of knowledge or material altogether because the ‘ownership’ of such things carries concomitant obligations and duties.[36]

In some cases, DNA samples are able to be collected from deceased (even long-deceased) individuals.[37] To some native groups, though, this represents an unconscionable violation of the sanctity of their ancestors.[38] While there are no reports of researchers taking DNA from dead individuals covertly, the case of the Kennewick Man presents an apt example from which to understand this objection. In 1996, a skeleton was found along the shores of the Columbia River in the State of Washington.[39] Scientists estimated the skeleton to be more than 9,000 years old (meaning that this individual inhabited the Pacific Northwest at the earliest part of human habitation of the North American continent).[40] The condition and age of the skeleton provided scientists and forensic anthropologists with unrivaled research possibilities that might further understanding of the natures and types of people who crossed the Bering land bridge.[41] Native American tribes in the region demanded that the skeleton be buried immediately without further scientific investigation, and found the idea of any such investigation to be a profoundly offensive intrusion into the peace and sanctity of their ancestors.[42]

III. CURRENT INTERNATIONAL LAW AGAINST BIOPROSPECTING

International law is not silent on the matter of bioprospecting, but it is quiet. While not addressing the issue explicitly, numerous international instruments have language which might bear upon the practice. Even if the international community hasn’t reached a unanimous consensus on the practice, academics and legal scholars whose voices resonate in international legal circles have made their position on the issue to be fairly clear.[43] Indeed, such is the overwhelming crush of scholarly articles against the practice of bioprospecting that a search of the relevant literature revealed no articles which appears to be a forward defense of the acts of bioprospectors, and only a handful which approach the position indirectly.[44]

International agreements are binding on states party to the agreement.[45] Even if a State refuses to ratify a particular international agreement, if acceptance of the international instrument (or provisions thereof) become the practice of the international community, the obligations of the instrument or provision can rise to the level of jus cogens – an international obligation arising from customary law.[46] The United States and the countries of Western Europe have, nearly without exception, ratified the international instruments herein discussed, and so should be considered bound by their terms on the international stage.

Among the many international instruments which impose obligations upon States signatory to the instrument, an international human rights scholar can locate documents of a specialized nature, aimed at particular situations and contexts, and documents of a more generalized nature which lay out broad organizing principles meant to guide all nations in their interactions with people everywhere. Two main generalized treaty documents bear upon the obligations of Western nations to indigenous communities: The Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Each instrument has been signed by the United States (though with some reservations). Several other documents also bear upon the future potential of cell-line bioprospecting, but in each case so examined, the rights enumerated in the treaty instruments significantly overlap the rights discussed in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Due to this overlap, the balance of discussion will focus on these two documents.

The Universal Declaration of Human Rights provides that human beings are born “free and equal in dignity and rights,” and that this dignity and the rights in the document are applicable to all people “without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status.”[47] Among the rights guaranteed by the Universal Declaration of Human Rights is the right to the “realization… of the economic, social and cultural rights indispensable for [his or her] dignity and the free development of [his or her] personality.”[48] It does not take any superb feat of legal legerdemain to argue that an indigenous community whose worldview, religion, and philosophy are threatened by biological research should be protected from such research in order to allow members of the indigenous community the ability to realize the “economic, social and cultural” rights that are necessary to develop their personalities within their particular social contexts.

The International Covenant on Civil and Political Rights[49] grants to all people under the jurisdiction of signatory states rights against medical experimentation without ‘free consent,’[50] and protects the right to the “inherent dignity” of humans.[51] The former right (against medical experimentation without consent) may have profound implications in the duties of field researchers to engage in substantial explanations about the nature of genetic materials, the uses to which they may be put, and commercial applications which may result from their research (or in some cases, even from the research of unaffiliated third-parties, if the material is to be sent to a DNA bank with lending rights). To the extent that one is persuaded that bioprospecting threatens the dignity of human persons, the latter rights of dignity will sound strongly against engaging in such research. The International Covenant on Civil and Political Rights begins its first substantive provision with a strong recognition of the right to self-determination for “all peoples” and their corollary right to “freely pursue their economic, social, and cultural development.”[52] Such a statement can be read as a ringing endorsement of the rights of indigenous communities (among others) to keep themselves free from outside intrusions which offend the precepts of their cultural and social institutions.

IV. CURRENT INTERNATIONAL LAW IN FAVOR OF BIOPROSPECTING

As mentioned above, international law is silent as to a direct condemnation or allowance regarding bioprospecting research practices. Just as one can find support for the objections of indigenous communities in international law, so too can one find support for the position of the bioprospectors who seek to engage in the genetic research at issue. Indeed, the selfsame instruments used above which seemed to be open avenues by which researchers could be barred from harvesting genetic material from indigenous communities contain language which just as easily can be construed to allow bioprospecting activities. Both the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights can be read in broad support of the underlying goals and methodologies of medical and scientific researchers.

Human cell-line bioprospecting research is largely confined to research on the genetic components of disease and disease resistance.[53] Ultimately the expected benefits from such research are large and should not be dismissed lightly. In Part II.A of this article, it was noted that bioprospecting had yielded a cell-line from a Papua New Guinea tribe which could confer resistance to adult leukemia. The significance of that finding may not be fully apparent without the relevant statistical context in which to place it. Over the years 1998-2003, the World Health Organization estimates that roughly 1,572,000 people died from leukemia.[54] With an average of about 262 thousand deaths per year due to leukemia worldwide, it is not surprising that researchers jump at the possibility to experiment with a new potent tool to stem the tide of human lives devastated by disease.

Leukemia is just one of the new medical advances which might be impacted by cell-line bioprospecting. Other forms of cancer, bacterial infections, and birth defects that lead to lifelong disabilities are among the diseases which may be fought with these new technologies. Even our understanding of a disease process as simple as asthma has been given new life by cell-line technology from isolated populations.[55] The broad implications of these new technologies places another right – the right to life - in direct conflict with the rights of culture and development discussed in Part III above.

The Universal Declaration of Human Rights, in its first substantive provision declares that “everyone has the right to life.”[56] While the Universal Declaration of Human Rights does not take pains to explicate the content of this right, the International Covenant on Civil and Political Rights does so quite clearly. The Covenant provides that everyone has “the inherent right to life.”[57] The article further states that “This right shall be protected by law.”[58] While at first glance, the totality of article 6 would seem to confine the right to life to instances of state-sponsored violence and the death penalty,[59] the General Comment No. 6, which provides a more in-depth understanding of the article of the International Covenant on Civil and Political Rights suggests a vastly different reading is appropriate.[60]

The commentary concerning the meaning and scope of the right to life is instructive. The narrow reading which might be inferred from a reading of the face of the document is flatly contradicted by the commentary which ascribes to the right the broadest of meanings.[61] The Office of the High Commissioner for Human Rights indicates in the commentary that the right “is a right which should not be interpreted narrowly.”[62] Moreover, “the Committee has noted that the right to life has been too narrowly interpreted.”[63] The commentary proceeds to explain that the right to life is more than the right to have the States party to the document not kill you arbitrarily. Rather, the protection of the right requires that the States party to the document “adopt positive measures” to fulfill their obligations to protect life.[64] This right extends beyond criminal and war-time contexts, and should be read to require States to “take all possible measures to reduce infant mortality and to increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics.”[65] (emphasis added)
That such a right is far-reaching in its implications is certain. Further, these far-reaching policy ramifications are placed in a hierarchy by the International Covenant on Civil and Political Rights. Article 4 of the Covenant allows for States to derogate from their responsibilities under the treaty in times of public emergency, provided that such derogations are not made solely for the purpose of discriminating against an enumerated list of social cleavages, like race or religion.[66] Despite allowing derogations of rights that most people would intuit as being sacrosanct,[67] the article continues on to note that absolutely no derogation (even during time of public emergency) is permitted for the right to life contained in article 6.[68] Aside from the few other rights excepted from the allowance for derogation (with which it is an equal), the right to life contained in Article 6 is in the highest echelon of international human rights under the International Covenant on Civil and Political Rights.

That the right to life should be found to be more important than other rights should not be surprising. Having the right to enjoy one’s culture or be free from arbitrary imprisonment rings hollow and futile if one is not protected in having a right to keep living. Continued existence is, after all, a necessary prerequisite to the enjoyment of all other rights.

Since States are required to enact positive law which protects life (particularly in a medical context) the existence of State barriers to medical research which could save millions of lives appears to be a violation of the obligations imposed upon a signatory State by the International Covenant on Civil and Political Rights. This reading of the Covenant is not unique to this author’s work. Other scholars have noted the expansive reading which is to be given to the Article 6 right to life found in the Covenant.[69]

V. HUMAN RIGHTS CONFLICTS AND RESOLUTION

As much as scholars, legal practitioners, and human rights workers might wish it to be otherwise, it is simply not possible to fulfill all human rights obligations to all people, all the time. In the case of aspirational goals (such as those contained in the International Covenant on Economic, Social, and Cultural Rights which provides a human right to food),[70] States party to the instrument need only satisfy the obligations to the best of their ability. Even in cases where States have the power to unambiguously fulfill their international agreements by vindicating the human rights of people in a legislative body or judicial tribunal, it must be recognized that in many situations, vindicating a human right for one party may mean violating a human right of another party.[71]

Situations where human rights can come into conflict abound. For instance, the act of quarantining people who are ill when fear exists as to the communicability of the illness, is an act seriously injurious to the human rights possessed by those quarantined. Rights of free travel and rights against government detention without charges are damaged or lost outright, and to add to the injustice of the rights-taking (from the injured party’s perspective), the rights were lost through no bad actions of the harmed party. Nonetheless, the rights-taking is done for the noblest of reasons – to vindicate the human rights to safety, security, and health of population members who are not ill.[72]

This conflict of rights can be even more dramatic in a case such as famine, wherein a number of people’s rights to life may be in direct conflict with the human property rights of someone who owns silos filled with grain.[73] Individuals with identical rights to life may be faced with situations in which there are only enough resources to sustain one of them.[74] In each of the above cases, ultimately a policymaker or judge (presuming the cases appear before a tribunal) must make a hard decision about whose rights should be vindicated and who goes away empty-handed – a particularly difficult decision if the empty-handed party must lose his or her life in the bargain.

There are three main ways in which human rights can come into conflict: Rights can conflict with identical rights held by another. Rights can conflict with different rights held by another. A right can conflict with a different right held by the party having the first right.[75] This conflict, arising out of cell-line bioprospecting, is an example of the second type of conflict. Indigenous communities’ rights to culture, religion, and development are impaired by the introduction into their communities of differing practices they may find offensive to their deeply cherished beliefs. Weighing against these cultural rights are the rights to life for (in just the case of leukemia alone) more than a quarter of a million men, women, and children each year. If the genetics of indigenous communities holds answers relevant to other disease processes (and there is good reason to suspect that their DNA holds such information, see Part II.A), the number may be many hundreds of times higher.

There is no question that a price can be placed on a human life in traditional legal circles. The very act of calculating damages in a wrongful death tort action requires the jury to do precisely that. From a policymaker’s perspective, the price used to judge a human being’s intrinsic worth must be understood and used to make difficult decisions on a daily basis. However, the case of cell-line bioprospecting is not one about putting a price on human life; it is about asking exactly how many human lives would it take to outweigh an indigenous community’s cultural rights and expectations of fair dealing?

International law is a unique legal landscape in which the rule of positive law does not hold complete sway.[76] Over the course of the past century, international law has trended away from a legal positivist understanding of law and embraced natural law concepts – concepts from which the very notion of ‘human’ rights are derived.[77] Unlike the jurisprudence of legal positivism, natural law leaves room for the objective use of pure reason to undergird the inquiry concerning making difficult policy choices.[78] It would not, therefore, be out of place to use ethical discourse to resolve the conflict. Indeed, this is precisely how a policymaker must deal with the case of cell-line bioprospecting from indigenous communities.

That a ‘higher’ law than positive law exists is not a new concept in international law. Following World War II, the victorious Allies sought to hold accountable for their atrocities Nazi officials, soldiers, and leaders.[79] The Nuremberg Trials were the result of this desire, but these judicial tribunals faced a serious legal problem – virtually nothing the Nazis did actually violated any international law or domestic statute.[80] One of the popular defenses brought by Nazi soldiers during these trials (and many others like them) was that they were not breaking the law; rather, they were following the law and their orders from superiors.[81] What law, after all, had they broken? The answer provided by the Allies, and one which still resonates in international law today, was that they had violated natural law.[82] Ultimately, it was argued that all people, everywhere, are responsible to a law higher than that made by political states, and that laws contrary to the ‘higher’ natural law do not hold sway in conferring obligation.[83] At the time, this conclusion was met with deep skepticism and fear.[84] However, intervening years have lessened the opposition to this idea, and now it is the dominant understanding of human rights that the rights are found in the natural law.[85]

The idea that a trans-cultural normative standard can be used to judge the actions of individuals or states has been met with some resistance. The most common arguments presented in the relevant philosophical journals included ideas of moral relativity[86] and emotivism[87]. Apart from a very small number of philosophers, though, these ideas have been analyzed, found lacking, and widely discredited.[88] The concept that trans-cultural standards do not exist has been so thoroughly rebuffed, and is so uncontroversial, as to present the death of these ideas in introductory texts in Ethics.[89] This article will not seek to rehash well-settled principles of other academic works, and will presume that the reader is acquainted with the dominant mode of normative discourse in both academia and lay discourse – moral realism.[90]

This author feels no particular need to address the specific cultural claims of indigenous communities. In many cases, they are clearly false, logically fallacious, or based upon primitive superstition more clearly associated with the bronze-age than with the modern era. In other cases, the cultural beliefs which cause opposition to bioprospecting are only loosely connected to any objective normative standards (such as utilitarian calculus, or categorical ethical systems like Kantianism). The cultural opposition by indigenous groups to bioprospecting need not concern the reader at this juncture, and this article will not attempt to lay out a complete analysis showing such beliefs to be inaccurate representations of the actual state of the moral world. Rather, this article will assume the contrary position for the sake of analysis - that the cultural beliefs of the indigenous groups have merit and that they should be respected. The inquiry being undertaken here, assuming as given the validity of the indigenous cultural beliefs which cause opposition to bioprospecting, is whether bioprospecting should be prohibited or allowed.

Utilitarian calculus clearly demands that all people’s well-being be taken into account equally, and that a policy-maker must seek to cause the greatest possible benefit or cause the least possible harm in his decisions.[91] Since this work assumes that loss of indigenous culture is a harm to be avoided (a position very much in contention elsewhere), the ethical question to be answered then is which harm – the damage to indigenous cultures or the loss of life for those bioprospecting would save – is the greater harm to be avoided.

Ethical prescriptions frequently contain within them the principles which underlie human rights norms – it is after all from these principles, not from the treaties themselves or our recognition of such values, that the rights derive their force and insistence in international law.[92] Why utilitarian values like “national security, public safety, public order, public health, and public morality” may outweigh usual human rights is because these values themselves contain the vindication of human rights for the far greater numbers of people.[93] Our commitment to the objective ethical truths of utilitarian policymaking should see an allowance made for the rights to engage in scientific and medical research that shows such unparalleled promise to save or improve the lives of countless millions of people. That such a position also serves to vindicate one of the highest international rights under the International Covenant on Civil and Political Rights serves only to bolster the claim.[94]

Ultimately, logic demands that life be a higher value than any other moral value. The enjoyment of all other rights, whether rights to practice a religion or to be free to speak one’s mind, is predicated upon continued existence of the self. Without freedom to remain alive, no other right can be guaranteed in any meaningful way. Regardless of the damage to indigenous culture, the lives of many hundreds of thousands of people must outweigh – and must take priority and precedence in an ethical policy-maker’s decision.

This is not to say that it is appropriate to cause any conceivable level of damage to indigenous groups. Recall that the trans-cultural normative standards require that a policy-maker reduce harm to the lowest possible amount.[95] While cultural harms cannot be avoided while protecting life in this context (due to their mutually exclusive application), it is here that the division of anti-bioprospecting arguments proposed in Part II.B of this article (cultural and economic) is most useful. The economic objections to bioprospecting (inadequate compensation, lack of accessible remedial measures, inadequate informed consent to research) are not mutually exclusive with the protection of life which must, by necessity, take precedence over cultural objections. Because the economic objections to bioprospecting can be remedied while still allowing bioprospecting to continue, it is imperative that they be remedied so as to reduce the amount of harm caused by the practice, and it is the urgent hope of this author that the international community address these objections in a timely and clear manner.

This article has not claimed that it will always, and in every case, be appropriate to engage in bioprospecting for indigenous cell-lines. In some cases, evidence may indicate that a given population’s DNA might not be worth the very real costs of collecting it. In other cases, a tribe’s affront at the spoliation of their cherished beliefs may be so great as to outweigh some small benefit expected to be received from harvesting their genetic material. Utilitarian calculus demands that all people’s interests be treated equally, and that the interests of all be taken into account, so it must be conceded that such an instance may certainly occur and that in such an instance the proper legal decisions should uphold the rights of indigenous communities over the rights of those who will die without the indigenous community’s genetic resources. Nonetheless, this author feels no hesitation to observe that when indigenous individuals enter into voluntary arrangements, in exchange for valuable consideration, to supply a medical researcher with cheek swabs, hair samples, or occasionally a blood sample drawn by a highly trained medical professional, that the bargain should be upheld even to the detriment of that person’s beliefs or to the detriment of the beliefs of others, because the damage caused by the inaction of not harvesting the DNA is so great.

VI. CONCLUSION

Genetics is one of the newest and most promising scientific disciplines to impact epidemiology and medicine in the past century. Understanding genetics has already provided scientists and medical researchers with new tools, technologies, and strategies to deal with problems that once seemed intractable. These advances have saved countless lives, increased human life expectancy, and markedly improved the quality of life for the people whose lives these new technologies and medicines have helped, and their families and friends. The potential of genetic material from isolated populations like indigenous communities can be an invaluable resource to help scientists discover new and innovative ways in which to help people live longer and healthier lives.

Harvesting this genetic material, though, can be problematic for indigenous communities with particular beliefs about nature, knowledge, and stewardship for their bodies and their environment. These cultural and spiritual worries are compounded by justified objections concerned with fair dealing and informed consent to the research. These worries are real and should be taken seriously, but do not represent the full measure of bioprospecting’s consequences. Ultimately, human lives are on the line, and no inconsequential number of them are impacted beneficially by the scientific research.

Politics, and decision making in law, is characterized by the necessity of making hard decisions that impact people’s lives, beliefs, and rights in profound and sometimes tragic ways. Whether to allow or prohibit human cell-line bioprospecting from indigenous communities is one such hard decision. Despite the difficulty posed by the dilemma, objective ethical considerations which underlie human rights require that as a general rule, bioprospectors be allowed substantial access to indigenous communities for the benefit of all.

[1] MATT RIDLEY, GENOME 38 (1999).
[2] Id., at 243. Ridley’s pronouncements are worth quoting in full. “As the third millennium dawns, we are
for the first time in a position to edit the text of our genetic code. It is no longer a precious manuscript; it is on disc. We can cut bits out, add bits in, rearrange paragraphs or write over words.”
[3] Id., at 250. Ridley cautions that while gene therapy is still a new science, cancer treatment has never
looked so hopeful – a fact that Ridley lays at the doorstep of genetic science.
[4] Id., at 243.
[5] See generally, Annie O. Wu, Surpassing the Material: The human rights implications of informed consent in bioprospecting cells derived from indigenous people groups, 78 WASH. U. L.Q. 979 (2000); Russel L. Barsh, Pharmacogenomics and Indigenous Peoples: Real Issues and Actors, 11 CARDOZO J. INT’L & COMP. L. 365 (2003-2004).
[6] Bioprospecting, also known as “biocolonialism” and “biopiracy,” refers to the act of researchers using materials, knowledge, and genetic resources from indigenous populations in furtherance of scientific goals. This paper will refrain from using the terms “biocolonialism” and “biopiracy” due to their highly prejudicial connotations, which makes them unsuited for reasonable academic use, particularly in the context of determining the moral permissibility of bioprospecting.
[7] Quinine (C20H24N2O2) is an important find for overall world health. Originally extracted from the bark of the Peruvian cinchona tree, the anti-malarial drug can save many lives. Naomi Roht-Arriaza, Of Seeds and Shamans: The appropriation of the scientific and technical knowledge of indigenous and local communities, 17 MICH. J. INT’L L. 919, 921-22 (1995-1996). This is particularly important discovery because of the prevalence of lethal cases of malaria – more than 3,000 lethal cases just in sub-Saharan African children every day (more than one million children per year). African Medical & Research Foundation, Statement of Objectives, at http://www.amref.org/index.asp?PageID=50&PiaID=1. Worldwide, malaria cases are estimated at 350-500 million (both lethal and non-lethal), and contribute to lower life expectancies and lower qualities of life for those in territories at risk for malaria. World Health Organization, Executive Summary of the World Malaria Report, 2005 at http://rbm.who.int/wmr2005/html/exsummary_en.htm.
[8] World Health Organization, Executive Summary of the World Malaria Report, 2005 at http://rbm.who.int/wmr2005/html/exsummary_en.htm.
[9] See Roht-Arriaza, supra, note 7, at 922.
[10] Malignant cancers were the second leading cause of death in the United States in the year 2000 (the most recent year for which mortality data were found), accounting for more than 550,000 deaths in the United States alone. Nearly one in every four deaths in the United States is due to cancer. Robert N. Anderson, Centers for Disease Control and Prevention: National Vital Statistics Reports, at http://wonder.cdc.gov/wonder/help/populations/bridged- race/NationalVitalStatisticsReportsVol50Number16.pdf
[11] See Roht-Arriaza, supra, note 7, at 922.
[12] Id., at 923.
[13] Id.
[14] These agricultural advances should be of particular interest to the 816,000,000 people who, worldwide, starve to death or die of malnutrition-aided disease each year. UNESCO, What the World Wants: Eliminating Starvation/Feeding Humanity, at http://www.unesco.org/education/tlsf/TLSF/theme_a/mod02/www.worldgame.org/wwwproject/index.shtml
[15] See generally, Roht-Arriaza, supra, note 7.
[16] Id., at 925.
[17] While not a cure for existent cases of leukemia, the potential to prevent adult leukemia should be celebrated. In the year 2000 alone, leukemia caused 21,339 deaths in the United States. World Health Organization, Mortality Database: Tables, at http://www.who.int/healthinfo/morttables/en/index.html
[18] Neil A. Campbell, et al., BIOLOGY 432-34 (5th ed. 1999).
[19] Id.
[20] Id., at 434.
[21] Creating cell-lines that are stable and self-replicating is a difficult and expensive process. See, Campbell, supra, note 18, at 219, 823-24.
[22] Debra Harry, et al., Indigenous People, Genes and Genetics: What Indigenous People Should Know About Biocolonialism, INDIGENOUS PEOPLES COUNCIL ON BIOCOLONIALISM, May 2000, at 25. [accessed at http://www.ipcb.org/pdf_files/ipgg.pdf]
[23] Id., at 20.
[24] Id.
[25] Id.
[26] Id.
[27] The anti-cancer drugs made using the rosy periwinkle plant from Madagascar have resulted in sales for the Eli Lilly corporation of over $100 million, annually. The profit Madagascar received for the research was quite small (Professor Roht-Arriaza characterizes Madagascar’s benefit as “virtually nothing”). See, Roht-Arriaza, supra, note 7, at 922.
[28] See, Harry, supra, note 22, at 21.
[29] Id.
[30] See, Ridley, supra, note 1, at 243. “…the obvious destination towards which genetic research is headed, the ultimate prize if you like, is a genetically engineered human being. One day, centuries hence, that might mean a human being with newly invented genes. For the moment it means a human being with an existing gene borrowed from another human being, or from an animal or plant.” Id. Such results in humans are still in the early research stages, but “… procedures that influence the germline are routine in labs working on fruit flies and mice, and researchers have done early procedures on nonhuman primates.” Gregory Stock, REDESIGNING HUMANS 2 (2003).
[31] See, Harry, supra, note 22, at 21.
[32] Id.
[33] Id.
[34] Id., at 21-22.
[35] Id.
[36] Id.; Laurie A. Whitt, et al., Belonging to the Land: Indigenous Knowledge Systems and the Natural World, 26 OKLA. CITY U. L. REV. 701, 731 (2001). “Indigenous recognition that the process of commodification may distort something’s value and significance , and result in a failure to meet one’s custodial responsibilities regarding it, is widespread. …Consider the Maori account of this. The third of the three baskets of knowledge, which form the basis of traditional Maori epistemology, contains all knowledge of the natural world (agriculture, medicine, astronomy, fishing, crafts, etc.). Such knowledge is considered tapu – sacred and set apart, or removed from profane use. It s treated with special respect, since it is also endowed with mana or power.” Id.
[37] See, Harry, supra, note 22, at 23.
[38] Id.; See, BBC NEWS ONLINE, Scientists finally study Kennewick Man (2005), at http://news.bbc.co.uk/2/hi/science/nature/4651831.stm
[39] BBC NEWS ONLINE, Scientists finally study Kennewick Man (2005), at http://news.bbc.co.uk/2/hi/science/nature/4651831.stm
[40] Id.
[41] Id.
[42] See, Armand Minthorn, Human remains should be reburied, CONFEDERATED TRIBES OF THE UMTILLA RESERVATION POSITION PAPER (1996), at http://www.umatilla.nsn.us/kman1.html. Minthorn, a religious leader of the Umtilla tribe, deserves quoting. “Our religion and elders have taught us that we have an inherent responsibility to care for those who are no longer with us. We have a responsibility to protect all human burials, regardless of race. We are taught to treat them all with the same respect. Many people are asking if there’s any chance for a compromise in this issue. We remind them that not only has this individual already been compromised, but our religious beliefs have once again been compromised. Many non-Indians are looking for a compromise – a compromise that fits their desires.” Id.
[43] See generally, Annie O. Wu, Surpassing the Material: The human rights implications of informed consent in bioprospecting cells derived from indigenous people groups, 78 WASH. U. L.Q. 979 (2000); Russel L. Barsh, Pharmacogenomics and Indigenous Peoples: Real Issues and Actors, 11 CARDOZO J. INT’L & COMP. L. 365 (2003-2004); Laurie A. Whitt, et al., Belonging to the Land: Indigenous Knowledge Systems and the Natural World, 26 OKLA. CITY U. L. REV. 701 (2001); Laurie A. Whitt, Indigenous Peoples, Intellectual Property & the New Imperial Science, 23 OKLA. CITY U. L. REV. 211 (1998); Keith Aoki, Neocolonialism, Anticommons Property, and Biopiracy in the (Not-So-Brave) New World Order of International Intellectual Property Protection, 6 IND. J. GLOBAL LEGAL STUD. 11 (1998-1999); Cindy Hamilton, The Human Genome Diversity Project and the New Biological Imperialism, 41 SANTA CLARA L. REV. 619 (2000-2001); Kara H. Ching, Indigenous Self-Determination in an Age of Genetic Patenting: Recognizing an Emerging Human Rights Norm, 66 FORDHAM L. REV. 687 (1997-1998); Meika Foster, The Human Genome Diversity Project and the Patenting of Life: Indigenous Peoples Cry Out, 7 CANTERBURY L. REV. 343 (1998-2000); David P. Fidler, Neither Science nor Shamans: Globalization of Markets and Health in the Developing World, 7 IND. J. GLOBAL LEGAL STUD. 191 (1999-2000).
[44] Andrea D. Brashear, Evolving Biotechnology Patent Laws in the United States and Europe: Are they inhibiting Disease Research?, 12 IND. INT’L & COMP. L. REV. 183 (2001-2002).
[45] David J. Bederman, INTERNATIONAL LAW FRAMEWORKS 13 (2d. ed. 2006).
[46] Id., at 24-25.
[47] Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. GAOR, 3d. Sess., pt.1, at 71, U.N. Doc. A/810, arts. 1, 2 (1948).
[48] Id., at art. 22.
[49] International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 U.N.T.S. 171, 6 I.L.M. 368.
[50] Id., at art. 7. It seems likely that ‘free consent’ can be read as requiring ‘informed consent.’
[51] Id., at art. 10.
[52] Id., at art. 1.
[53] Some cell-line bioprospecting is used for non-medical purposes, however. The Human Genome Diversity Project (HGDP) gathers genetic data from hundreds of different groups (including indigenous groups). According to the Morrison Institute which runs the HGDP, among possible uses for this data are understanding human relatedness, learning about human migratory patterns (using biology to confirm/disprove archaeological findings), understanding early hominid evolution locations, as well as the speed with which human DNA mutates. Morrison Institute, Human Genome Diversity Project, Frequently Asked Questions, at http://www.stanford.edu/group/morrinst/hgdp/faq.html
[54] World Health Organization, Estimates of Death by Cause, at http://www.who.int/healthinfo/statistics/mortestimatesofdeathbycause/en/index.html
[55] See, Wu, supra, note 5, at 984.
[56] See, Universal Declaration of Human Rights, supra, note 47, article 3. (Articles 1 and 2 of the Declaration do not appear to contain substantive rights. Article 1 appears to be a broad statement of principle. Article 2 indicates that rights inhere equally in all persons.)
[57] See, International Covenant on Civil and Political Rights, supra, note 49, article 6.
[58] Id.
[59] Article 6 concerns itself on the face of the document with use of the death penalty, rights of appeal and amnesty following a sentence of death, and state-sponsored genocide. Id.
[60] Office of the High Commissioner for Human Rights, General Comment No. 6: The Right to Life (art. 6) (1982), at http://www.unhchr.ch/tbs/doc.nsf/0/84ab9690ccd81fc7c12563ed0046fae3?Opendocument
[61] Id.
[62] Id.
[63] Id.
[64] Id.
[65] Id.
[66] See, International Covenant on Civil and Political Rights, supra, note 49, article 4.
[67] Some rights Article 4 allows to be derogated in times of public emergency include rights against arbitrary arrest or detention, rights to speedy trial, rights to be informed of charges pending against you, rights to be treated humanely while in government custody, rights to fair and competent tribunals in which to have claims heard, rights of equality before the law in courts, and rights against ex post facto criminal prosecution. Id.
[68] Id. Article 4 also excepts from the allowance for derogation the rights of article 7, the first 2 paragraphs of article 8, article 11, articles 15 and 16, and article 18. Id.
[69] Amy Hardberger, Whose Job is it Anyway?: Governmental Obligations Created by the Human Right to Water, 41 TEX. INT’L L.J. 533, 534 (2006). “The right to life is now read more broadly to include the prevention of murder, war time atrocities, and measures that increase life expectancy like personal health and hygiene.” Id.
[70] Office of the U.N. High Commissioner on Human Rights, International Covenant on Economic, Social, and Cultural Rights, art. 11 (1966), at http://www.ohchr.org/english/law/cescr.htm
[71] See generally, Xiaobing Xu & George Wilson, On Conflict of Human Rights, 5 PIERCE L. REV. 31 (2006).
[72] Id., at 32.
[73] Id., at 34.
[74] Id.
[75] Id.
[76] See, Bederman, supra, note 45, at 16-25.
[77] Id., at 1-6.
[78] Robert L. Hayman, Jr., et al., JURISPRUDENCE: CLASSICAL AND CONTEMPORARY 1-10 (2002).
[79] Judge Charles E. Wyzanski, Jr., Nuremberg: A fair trial? Dangerous Precedent, THE ATLANTIC MONTHLY
66-70, Vol. 177, No. 4. (1946).
[80] Id.
[81] Id.
[82] Id.
[83] Id.
[84] Id.
[85] See, Hayman, Jr., supra, note 78.
[86] Stanford Encyclopedia of Philosophy, Moral Relativism (2004), at http://plato.stanford.edu/entries/moral-
relativism. Moral Relativism is commonly understood as the idea that moral judgments are relative to the communities in which they arise. In other words, moral values hold no objective basis and cannot be properly applied to situations outside of the particular societies which created them.
[87] Stanford Encyclopedia of Philosophy, Alfred Jules Ayer (2005), at http://plato.stanford.edu/entries/ayer.
Emotivism was a theory championed by A.J. Ayer in the 1930’s and 1940’s which asserted that moral judgments were not actually asserting to be facts about the world, but rather were in truth nothing more than personal ‘rahs’ or ‘boos.’ Essentially if an individual said ‘Murder is wrong,’ the individual is in reality asserting nothing more than the internal mental state ‘I dislike murder.’ Just as the statement ‘I like broccoli’ carries no concomitant obligation upon others to like or dislike broccoli, so too does ‘Murder is wrong’ carry no obligation for others to agree with the purely personal, emotional statement.
[88] JAMES RACHELS, ELEMENTS OF MORAL PHILOSOPHY Chs. 2-3 (2006). So clearly false are the ideas
proposed by those in opposition to the existence of a trans-cultural normative standard that their discredit is explained and shown in an simple philosophy text commonly used by high schools and introductory undergraduate courses. Id. Professor Rachels provides a useful summary of the main arguments which have shown moral subjectivists (cultural relativists and emotivists) to be wrong. These include fundamental incoherence, linguistic difficulties, logical fallacies, and ethical problems.
[89] Id.
[90] Stanford Encyclopedia of Philosophy, Moral Realism (2005), at http://plato.stanford.edu/entries/moral-realism. Moral Realism is the dominant understanding of modern ethics and suggests that moral facts purport to explain actual states of the world, and are true if and only if the actual state of the world actually conforms to the asserted fact.
[91] See generally, JOHN STUART MILL, UTILITARIANISM (2005) (1841).
[92] See, Xu & Wilson, supra, note 71, at 37.
[93] Id.
[94] Id.
[95] See, MILL, supra, note 91.

Thesis for course in Comparative Constitutional Law

2007-12-23T02:47:00.000-08:00

Divergent Ethics:
A normative comparison of the jurisprudence on abortion of Germany, Canada, and the United States

M. D.
Comparative Constitutional Law
12/18/06

INTRODUCTION

There are few subjects more apt to raise the public’s passions than abortion. No matter the ideological side taken on the issue, the emotional investment attendant to any position taken in this area often makes it difficult to have serious policy discussions. In a world in which technological advances create new situations over which litigation will arise more and more frequently, these serious policy discussions are needed more than ever. This article is an attempt to contribute to that ongoing policy dialogue, both in a descriptive and normative way.
The state of the law in the United States concerning abortion is relatively straightforward in its general form but becomes more unclear in the penumbral cases. To aid in understanding the nature of these cases at the edge, the first part of this article includes a description of current law from Canada, the United States, and Germany. Each country has a well-developed jurisprudence with regard to abortion and understanding the shape of the law in each country will provide the framework for a normative analysis.
The difficulties posed by questions of abortion, personhood, and whether rights are inherent in pre-birth humanity are unusual and frequently technical. Determining the answers to these questions often takes jurists and academics deep into the principles underlying our law and way of life. Unfortunately for those interested in forming a coherent view of law, the principles and philosophies from which judges and writers draw are varied and wildly divergent. The second part of this essay will attempt to outline several of the major philosophical positions on abortion and determine which, if any, could be proposed as being underlying each country’s abortion jurisprudence.
Finally, a note about methodology and purpose is warranted. This author views law through the lens of legal formalism, and this essay is an attempt to deduce the proper principles underlying the abortion jurisprudence of the United States with reference to the abortion jurisprudence of Canada and Germany. This analysis is meant to be a guide for judges and academics in aid of their making the proper decisions when presented with difficult cases on the margins. To the extent readers accept the jurisprudential position taken in this work, this article will serve to shine light into the grey areas at the edges of established law. Readers who reject the idea that law is derived from ethical sources, (rather than from statutory and political sources) will still find the descriptive elements to be a useful contribution to their understanding of law, though largely duplicative of previous scholarship.

PART I: CURRENT LAW OF CANADA, THE UNITED STATES, AND GERMANY

CANADIAN LAW

Canadian jurisprudence on abortion followed closely English common and statutory law until the nineteenth century.[1] Until 1803, abortion was a common law offense if done at any point after the fetus had quickened, because by the time the fetus could move it had demonstrated at least one element of independence from the woman bearing it.[2] In this respect, Canadian common law required a measure of separateness in order to vest some right in the fetus. This necessity for some amount of separateness as a requisite for rights was codified in 1803 by Lord Ellenborough.[3] Ellenborough’s law strengthened the criminal nature of abortion by making abortion after quickening a capital offense.[4] The law further extended the criminality of abortion by making abortion before quickening criminal, though without an attendant death sentence.[5] Ellenborough’s law lasted until 1837 when it was preempted by an English law.[6] The 1837 law rejected the use of the death penalty and abolished the distinction between pre- and pos-quickening abortions.[7]
In 1861, the English Offenses Against the Person Act reiterated the criminality of abortion via instruments or poisons.[8] The specific inclusion of the method of abortion in the statutory language left open the potential that some abortions (done through other means) might not be criminal. The Offenses Against the Person Act was the basis for Canadian abortion jurisprudence until 1953.[9]
The first truly Canadian law on abortion was passed in 1869 and remained largely without significant controversy until the 1960’s.[10] Due to the action of Great Britain to liberalize abortion laws, Canadian politicians followed suit.[11] A scholar who has studied this history of abortion law in Canada noted that British influence over Canadian politics on abortion, saying that “[j]ust as Canada’s original abortion law was based on British precedent, so, too, was the movement in the 1960’s to reform the law.”[12] C-150, the Canadian law that was the product of the tumultuous debate of the 1960’s, reformed Canadian abortion law in ways that were far-reaching. The law legalized abortion in cases where pregnancy would endanger or seriously and directly impair the life of the woman who was pregnant.[13]
Canada’s women and doctors operated under this law for nearly two decades.[14] Until the 1988 Constitutional decision of Morgentaler v. The Queen, the Supreme Court of Canada showed significant judicial restraint in dealing with the issue of abortion. Doctor Mogentaler’s case begins in 1973, when his abortion clinic in Montreal was raided by the police.[15] Doctor Morgentaler was arrested and charged with performing an illegal abortion on a woman. Morgentaler presented a defense of medical necessity, argued against the jurisdiction of the court, and claimed that the prosecution for performing an abortion violated the Canadian Bill of Rights.[16] Morgentaler’s main claim, though, was radical. Morgentaler claimed that “the Canadian Bill of Rights of 1960, derived from the US Constitution, imported American common law decisions into Canadian law, and thus, Roe v. Wade case law should be followed in Canada.”[17]
Morgentaler’s constitutional arguments were appealed to the Supreme Court of Canada, which dismissed them all.[18] In a double-blow against Morgentaler, the court even indicated that the trial court had erred in even considering necessity as a defense, since no evidence of an emergency existed.[19]
In 1988, Morgentaler took another bite at the apple and got a second chance to present his Constitutional arguments following a second prosecution for performing unlawful abortions. Morgentaler refined his argument in light of the new Canadian Constitutional documents of 1982.[20] Section 7 of the Canadian Charter of Rights and Freedoms (1982) provided that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”[21] Using this language, Morgentaler argued that the criminalization of abortion (even with the necessity defense) deprived women of these guaranteed freedoms.
The Morgentaler v. The Queen (1988) judgment ruled that the Canadian Criminal Code sections criminalizing abortion did violate the Canadian Charter of Rights and Freedoms in this way.[22] Moreover, the process by which the Code harmed a woman’s rights of security did not comport with fundamental justice.[23] While recognizing that the State had a duty to protect fetal life at some point, the means by which the State sought to accomplish that end were not reasonable.[24] The Canadian Supreme Court based its ultimate conclusions on the permissibility of abortion not on privacy, as in the United States, but on the right of security for all persons.[25] Being denied access to medical treatment, by way of criminalizing the treatment, violated a woman’s right to be secure in the well-being of her person.
After handing down the 1988 Morgentaler decision which ruled Canada’s law on abortion to be unconstitutional, other legal efforts were put into motion by parties on all sides of the issue. One important case decided a year after Morgentaler was filed by a pro-life Manitoba cabinet member. The case, Borowski v. Canada, sought to have interpreted the same language used by Morgentaler in his successful case before the Supreme Court of Canada.[26] The same rights found in section 7 of the Canadian Charter of Rights and Freedoms were at issue, and Borowski argued that while Morgentaler was decided correctly in terms of its interpretation of the language, that the court had failed to consider the scope of the word ‘everyone.’ Since “Everyone has the right to life, liberty and security,” argued Borowski, then these rights adhered both to the woman who was pregnant and to the unborn child in her womb.[27]
The Canadian Supreme Court declined to address the personhood of the fetus, and dismissed Borowski’s Constitutional claim.[28] The Court once again retreated into the relative safety of deference and suggested that determining who qualified to possess the rights guaranteed by the Canadian Charter of Rights and Freedoms was a job for the legislative branch, which could get the input of all of the relevant disciplines before making its decision.[29] The Morgentaler and Borowski decisions opened the door for the public to demand a new abortion law, consistent with the Charter of Rights and Freedoms, to be enacted by the Parliament, and in 1990, the Canadian Parliament adopted a new statutory law of abortion in light of the Morgentaler and Borowski decisions.[30] The proposed new Canadian law provided that abortion was criminal only in cases where a medical practitioner did not believe that the pregnancy threatened the life of the woman (even in cases where there was no immediate emergency). The Canadian Senate rejected the bill by a single vote and thus the proposed law never became an actual law.[31] Parliament has yet to achieve a consensus about how to deal with abortion and this remains the case in Canada at present.[32]

UNITED STATES LAW

American history with respect to abortion is largely uncontroversial. Prior to 1821, abortion was not prohibited nor regulated in the United States under any guise.[33] In 1821, Connecticut prohibited abortion after quickening, although unlike the Canadian experience, no death penalty went along with the crime.[34] Eight years later, New York followed suit and prohibited abortions after quickening, and provided a medical necessity exception.[35] By 1849, eighteen states had passed anti-abortion laws, and by 1900, forty-three.[36] Despite nearly universal criminality in the United States by the twentieth century, abortion was largely ignored until the 1960’s.[37]
An understanding of American Constitutional law regarding abortion begins with a case outside of the abortion context, but on which the contemporary right to an abortion rests. In Griswold v. Connecticut,[38] Connecticut had outlawed the dissemination of information about contraception, and certain medical professionals (including Griswold) had been brought up on charges of disseminating the information in violation of the law.[39] Writing for the Court, Justice Douglas articulated that the rights found in the U.S. Bill of Rights were not as clearly understood as they should be.[40] He concluded that, while the rights contained in the American Constitution were specific in many cases, the rights also had penumbras and emanations which helped jurists to see the scope of the enumerated rights as well as others which could be derived and found in the penumbras of the enumerated rights.[41]
The right of privacy was found in the penumbras of many amendments,[42] and extended to having a right to keep from government intervention the reproductive decisions of a married couple to have or not have children through the use of contraceptives.[43] The right of privacy was held to reach unmarried individuals in their right to use contraception as well.[44] This right of privacy was key to the birth of modern abortion jurisprudence in the United States.
The landmark case that first revealed that privacy extended to abortion was Roe v. Wade.[45] The Roe decision acknowledged the sensitive nature of the issues presented, and recognized the varying influences that were brought to bear in shaping people’s views on the matter.[46] Tracing a conceptual lineage back to 1891, the Court held that the right of privacy exists (as held in Griswold), and that the right of privacy extended to the right to have an abortion.[47] The Court continued on to recognize a right of the State to protect fetal life, and made clear that at some point during pregnancy, the State’s right to protect fetal life would come to outweigh the pregnant woman’s right to procure an abortion.[48]
The court adopted a trimester-style analysis and held that before the end of the first trimester, the State may not interfere with a woman’s right to have an abortion, but that after the first trimester, the State may intervene and regulate abortion in ways reasonable related to the protection of the health of the pregnant woman.[49] From the end of the second trimester through the end of the third, the State may regulate or even proscribe abortions altogether (with an exception for cases of medical necessity).[50]
Planned Parenthood v. Casey followed almost 20 years after Roe, but was just as ground-breaking in terms of its alteration of the legal landscape on abortion. Casey[51] was a revisitation of the right to abortion that Roe first provided to American Constitutional law. The plurality opinion in Casey upheld the extension of a right to privacy to abortion cases from Roe, but did so only narrowly, citing reliance on precedent as a primary reason for upholding Roe.[52]
Casey’s radical alteration was not to the extension of the right of privacy to abortion cases, but rather was an alteration in the type of analysis that should be done in abortion cases. Casey reaffirmed the Roe holding, but discarded the trimester analysis, stating that the trimester analysis “[did] not fulfill Roe’s own promise that the State has an important interest in protecting fetal life or potential life.”[53] In place of the trimester analysis used by Roe, the Court placed a two-part test.[54] The first part of the test centers on viability. Those attempts by the government to prohibit abortions (with the medical necessity exception, still) after viability will be upheld, while those done before viability must pass the second part of the test.[55] If a governmental regulation interferes with a woman’s right to have an abortion for a non-viable fetus, it will be upheld unless the regulations poses an ‘undue burden’ on the woman’s right to proceed with the abortion.[56]
These principles have been subsequently tested and upheld in the United States Supreme Court.[57] Whereas the Canadian Supreme Court discovered a right to abortion in the meaning of the term ‘security’ from the Canadian Charter of Rights and Freedoms, the United States Courts have located it in the meaning of the term ‘privacy’ as read in the penumbras of enumerated rights in the Constitution of the United States.

GERMAN LAW

The German experience is significantly different than the experience of either America or Canada in respect to abortion. Canada and the United States founded their abortion jurisprudence on security and privacy, respectively. German abortion law makes abortion illegal irrespective of how unadvanced the pregnancy.[58] Like Canada, the German Court relies on specific text from their Constitution in forming its abortion jurisprudence, but unlike Canada, Germany found that their Constitution required the State to protect fetal life more affirmatively.[59]
The German Basic Law is the Constitution of Germany. The Basic Law contains a statement that “Everyone shall have a right to life.”[60] The Basic Law also explicitly recognizes the dignity of each human being as being central to the German nation.[61] These principles emerge from Germany’s past experience with Nazism and are taken quite seriously, as a way to guard against the difficulties of German history.[62] As such, the principles occupy the first few articles of the German Basic Law, indicating their importance in the social order of Germany.
West Germany, in 1975, had created a liberalized abortion law allowing abortions during the first trimester of pregnancy as long as the woman received counseling and had the procedure handled by a medical professional.[63] This politically supported law brought West German law more in line with the law of the liberal democracies around it.[64] In 1975, a case labeled ‘Abortion I,’ the abortion statute of Germany was challenged successfully.[65] Abortion, held the Court, concerned the most fundamental value for which the State was created to protect – namely, life.[66]
The German Constitutional Court made clear that a fetus had a legal right to life that the State was required to affirmatively protect. As one scholar writes, “‘Developing life also partakes of the protection of human dignity,’ the constitutional Court asserted in Abortion I, since ‘where human life exists, human dignity attaches.’”[67] Germany took an explicit stance on when humanity is accorded rights in Abortion I. Many philosophers will contend that the ultimate question involved in the American abortion debate is when to label a pre-birth member of Homo sapiens a human being in the full sense of the term. Germany settled this dispute constitutionally, claiming that “‘Everyone’ thus includes the yet unborn person; a fetus has a right to life. ‘Life in the sense of individual existence… begins according to undisputed biological and physiological knowledge… 14 days after conception.’ Once begun, life is ‘a continuous event, which knows no sharp phases and does not contain distinct boundaries between stages of development.”[68]
Further, the Court held that the German State had an obligation to protect fetal life (a duty that allowing abortions via statute would not allow).[69] Article 1 of the German Basic Law orders the State to ‘respect and protect’ human dignity.[70] Indeed, so powerful is the State’s obligation in this regard that the Basic Law refers to this as ‘the duty of all state authority.’[71] From this, the Court concluded that the State could not constitutionally have a statute that permitted abortions except in a very limited number of cases.
These exceptions (‘indications’ in the Court’s language) are fairly narrow, but include most of the common ones found in Canada and the United States. An indication is provided in cases of threat to the woman’s health as well as for pregnancy resulting from rape and incest.[72] For general needs the Court could not foresee, they provided an indication for extreme hardship, but only when the severity of the hardship would be akin to the severity of the other indications.[73] Curiously, though, the German Constitutional Court provided an indication for a case not covered in the United States or in Canada. This indication allows for abortions in cases of severe birth defects.[74]
Despite the strict opinion of the Constitutional Court that the State must affirmatively protect fetal life by criminalizing abortion in any trimester (with only the indications as exceptions), German citizens found ways to circumvent the spirit of the law.[75] Women who wanted abortions usually tended to fall under the indications, and courts leniently interpreted what could fall under the indication for hardship.[76] Further, enforcement and implementation of the criminalizing statute varied region by region, and nothing prevented women seeking abortions to travel to areas of the country that were looser in their interpretation of the indications to procure an abortion.[77] As a final nail in the coffin of the statute created in light of Abortion I, women seeking abortions who were unable to fit within an indication frequently traveled abroad (particularly to the Netherlands) to obtain one.[78]
In 1993, the Constitutional Court of the newly reunified Germany reconsidered its previous abortion ruling from Abortion I.[79] Before reunification, East Germany’s emphasis on social welfare had found expression in a liberalized abortion law much in line with the abortion laws of the countries surrounding Germany, and much like the law originally at issue in Abortion I.[80] With reunification came the difficulty of trying to merge two divergent populations’ legal standards and ideas about justice with respect to handling the termination of pregnancy. East Germany was allowed to keep their liberalized law on abortion until a German Bundestag could find a compromise solution, which came in 1992 with the Abortion Reform Act.[81] The Abortion Reform Act allowed a woman to obtain an abortion in the first trimester of pregnancy if she attended a mandatory counseling program designed to encourage the woman to consider her responsibilities.[82] The Act also required a three-day waiting period before receiving an abortion.[83]
This law came under fire from those who had originally pushed for the West German law criminalizing abortion. Quickly after the passage of the Abortion Reform Act, the Constitutional Court again was presented with the issue of abortion in the case known as ‘Abortion II’.[84] Overwhelmingly, the Court in Abortion II overturned the Abortion Reform Act, reiterating the core ruling of Abortion I.[85] Ruling against the new law posed serious difficulties with the public, since the law was the result of a broad compromise between factions. The new law had significant public support, but the Court was forced to defend its previous ruling.[86]
Affirming the holding of Abortion I, the Constitutional Court explained that “Dignity attaches to the physical existence of every human being… before as well as after birth… Unborn life is a constitutional value that the state is obligated to protect that attaches to each human life, not life generally.”[87] Moreover, the Court held that simply making abortion illegal wasn’t enough to satisfy the duty to protect life and human dignity.[88] The German government would have to make it clear that abortion is illegal and that a duty to carry children to term existed for pregnant women.[89] The duty of the state and of its people to protect life in these fashions stood at the base of German society for the Court.[90]
The Court did soften its approach in dealing with abortion, though. While the State had a duty to make it clear that abortions were illegal, the Court recognized that this did not entail that the State had a duty to criminalize abortions generally.[91] A comprehensive system of counseling and encouragement could constitutionally be allowed to take the place of criminalization, but would need to be more stringent than the system put in place via the Abortion Reform Act. The Court asserted that “the state may validly conclude that in view of the reality of abortion in modern society, the more effective solution to the problem of unwanted pregnancy is to stay the hand of the would-be prosecutors, to make an ally and friend of the woman in distress, to foreswear threats of punishment, and to induce her to cooperate voluntarily without fear of retribution of loss of personal integrity.”[92] The system suggested by the Court is the current law of abortion in Germany.

PART II: ETHICAL THEORIES OF ABORTION AND CASES AT THE MARGINS

ETHICAL THEORIES

There are dozens of serious theories concerning the wrongness of killing in the relevant philosophical literature. To cover them in their entirety would be a project greater than that attempted in this article, and this article will leave that work for another writing or for another author. Among the many theories, several stand out as being particularly common amongst the public, and these theories are the ones on which this article will focus the majority of its discussion. The theories discussed here will be referred to as Sufferist Theory, Psychological Personhood, Future of Value Theory, and Catholic Doctrine Theory. Each will be discussed in turn via a brief summary.
What this article terms Sufferist Theory comes largely from the works of the Australian ethicist, Peter Singer. Singer posits that the line between the entities to which we owe duties and those entities to which we do not owe duties can be drawn scientifically.[93] Unlike many people’s intuitional starting place in this arena, Singer does not attempt to determine when human life begins. Rather, Singer argues that the ‘humanness’ of an entity is largely irrelevant to the determination of whether we owe that being a certain moral respect.[94] In another context in which he applies his theory commonly (the field of non-human animal rights), Singer quotes the father of political Utilitarianism, Jeremy Bentham, at length. Singer quotes, “The day may come when the rest of the animal creation may acquire those rights which never could have been with-holden from them but by the hand of tyranny. The French have already discovered that the blackness of the skin is no reason why a human being should be abandoned without redress to the caprice of a tormentor. It may one day come to be recognized that the number of legs, the villosity of the skin, or the termination of the os sacrum are reasons equally insufficient for abandoning a sensitive being to the same fate. What else is it that should trace the insuperable line? Is it the faculty of reason, or perhaps the faculty of discourse? But a full-grown horse or dog is beyond comparison a more rational, as well as a more conversable animal than an infant of a day or a week or even a month, old. But suppose they were otherwise, what would it avail? The question is not, Can they reason? nor Can they talk? but Can they suffer?”[95]
Singer’s use of Bentham in another context provides ample material from which to understand how he views the morality of harming biologically human entities. The question for Singer revolves not around whether the entity is a human being at all. Rather, the question becomes ‘Can the entity suffer?’ To Singer, the greater the ability of the entity to suffer, the more its interests must be taken into account when determining the proper course of action.[96]
A human fetus does not have the capacity to suffer in the same manner in which an adult woman can suffer, both because of the lack of nociceptors in the fetus as well as the utter lack of mental characteristics to permit non-physical pain. For Singer, this answers the question in its entirety. Abortion cannot be wrong in the earliest stages of pregnancy (because the fetus cannot suffer), and will only be wrong in the late term of pregnancy in the most unlikely of cases (since the fetus will only have the capacity to feel physical pain).
Psychological Personhood Theory is a broad umbrella under which many divergent theorists band. While each espouses a differing theory, all accept a broad underlying principle that says that what is determinative in what things we may properly kill and what things we must refrain from killing isn’t suffering, but rather a set of psychological characteristics found in things over which there is no controversy in regard to killing them. A prime example of this type of theorist is Michael Tooley.
Tooley argues that in order to harm a being, the being must have the capacity to be harmed.[97] To explain this intuitive, but easily-overlooked, concept, Tooley offers the following two statements: 1) A child does not have the right to smoke, and 2) A newspaper does not have the right not to be torn up. Tooley points out that the first statement is a candidate for debate based on our general views of appropriate moral conduct, but that the second statement is not in serious contention for any debate.[98] The reason for this is that the newspaper is not the type of entity which can possess interests.[99] An entity without the ability to have an interest in something cannot be harmed because the being does not have any stake in the outcome of a proposed action.[100]
In order to have interests, though, an entity must have the ability to have interests, and that means having desires about the outcomes of proposed actions.[101] If a being cannot desire one outcome over another, the being cannot have an interest in the outcome of the situation, and therefore cannot be harmed by any possible outcome.[102] The question then becomes, do fetuses have desires? Answering that question is difficult because it would require a psychological analysis of a being that cannot directly interact with someone analyzing it. To get at the answer indirectly, Tooley notes that in order to have desires, a being must be capable of understanding that it will continue on into the future and that actions now will have impacts on itself later, thus affecting its ability to meet its desires.[103]
Fetuses, though, do not have a continuing sense of self over time.[104] This absence of an ability to see themselves as existing over time (a capacity that even infants do not possess) indicates that fetuses do not have desires requisite to generate and sustain interests. That they cannot generate nor sustain interests means that they cannot be harmed. Since a fetus cannot be harmed by an abortion, there is no reason to stop a woman from having an abortion at any point during her pregnancy, for any reason she desires.
Future of Value Theory is a theory originally proposed by a professor at the University of Kansas named Donald Marquis. Marquis proposes that trying to understand what we can kill ethically by examining a particular context is meaningless.[105] Before we can know whether abortion is immoral, we must understand what makes killing wrong in a case about which we are sure. Marquis begins with what he views as an unproblematic assumption – namely, that it is wrong for someone to kill him.[106] Marquis accepts this assumption and then asks, ‘Why?’[107] Why is it immoral for someone to kill him? The intuitional response, and the response on which his theory rests, is that it would be wrong to kill him because there are things that he still values in his life and killing him would forever deprive him of those things which he values. [108]
Having a future in which he will value things is reason enough to ensure that it is prima facie seriously wrong to kill him. If it is wrong to kill a being because it possesses a future which contains things that it will value, then does that match with our other intuitions about killing? Marquis answers that it does.[109] It explains, he suggests, why we view killing as one of the worst crimes, and why people dying from a terminal disease view their deaths as something bad that will happen to them.[110] Additionally, it explains why we tend to see the death of a very young child as a greater tragedy than the death of a very old individual.[111] It stands to reason that the child had a future with far more to value in it than did the elderly person who could have had far fewer years left in which to value things.
Marquis makes the conclusions of his theory clear for infants and fetuses. While it may still be possible for abortion to be acceptable in a very small number of cases, overwhelmingly, abortion will be impermissible. Just as a young child has a long future ahead of her in which to value things, an infant has even more of future ahead of it.[112] A fetus has a still longer future ahead of it in which to value things so killing it is even more wrong than killing a young child.[113] In terms of value content (but not value magnitude), Marquis explains, “the future of a standard fetus includes a set of experiences, projects, activities, and such that are identical with the futures of adult human beings and are identical with the futures of young children. Since the reason that is sufficient to explain why it is wrong to kill human beings after the time of birth is a reason that also applies to fetuses, it follows that abortion is prima facie seriously morally wrong.” A system based on Marquis’ Future of Value Theory would disallow abortion in all but cases in which two futures of value were at stake, and from that point, Marquis provides no guidance on how to balance the two futures of value. Either way, elective abortion would be legally impermissible under his theory.
Finally, Catholic Doctrine Theory holds that abortion is nearly always seriously morally wrong from a religious standpoint.[114] Pope John Paul II stated the position of the Roman Catholic Church in the Evangelium Vitae – his encyclical letter on abortion.[115] Citing the need to clear the obfuscation surrounding abortion and ‘call things by their proper name,’ Pope John Paul II wrote that “procured abortion is the deliberate and direct killing, by whatever means it is carried out, of a human being in the initial phase of his or her existence, extending from conception to birth.” (italics in original).[116] As such, the moral gravity of abortion is that attendant to murder.[117]
While recognizing that most abortions are not undertaken lightly or for purely selfish reasons, the encyclical contends that reasons of protecting the health of the mother, preventing a child from being born with severe birth defects, or preventing a child from being born into conditions unsuited for children are illegitimate reasons to justify taking an innocent human life.[118] Pope John Paul II continues on, recognizing the innocence of fetal life, suggesting that not only is the fetus helpless in its physical state, but in its newness to the world around it as well.[119] Moreover, the fetus could not be considered an aggressor in any sense because it is weak and defenseless, even lacking “the poignant power of a newborn baby’s cries and tears.”[120] Making the abortion even more wrong, he explains, is the fact that the fetus is dependent on, and entrusted to the care of, the woman carrying the fetus.[121] Such an act of abortion, then amounts to more than murder. It is murder by a betrayal of a trust.
Given the totality of the scope of the Catholic Doctrine Theory argument, it is doubtful that a system based upon it would allow abortions to legally take place, even in cases where necessary to keep a woman’s life or health from being threatened. As the encyclical states, “these reasons and others like them, however serious and tragic, can never justify the deliberate killing of an innocent human being.” (italics in original).[122] It is clear that abortion will always be legally impermissible under this theory.

ANALYSIS

Canadian jurisprudence on abortion is currently in limbo. The Canadian Supreme Court has held that preventing a woman from having an abortion under some circumstances (at the very least if she requires the abortion to preserve her health or life) is inconsistent with the Canadian Charter of Rights and Freedoms because it denies women a right to security in their persons.[123] The abortion law of the United States is at present encapsulated by the following rule: The government may regulate or prohibit abortion after viability, and before viability may regulate only if it does not create an undue burden on the woman’s right to have an abortion.[124] Germany takes a harder stance, making abortion illegal in all cases except for a narrowly drawn list of exceptions and having a mandatory value-persuasion regimen a woman must complete before she may proceed with the procedure.[125]
The purpose of this essay was to try to find a coherent ethic by which future difficult cases could be judged in aid of having jurists reach the correct results without a lot of guesswork. Each country has a differing stance on abortion drawn from different national experiences. Do any of these legal positions roughly correspond with any of the four theories presented here? For any nation’s legal rules concerning abortion, whether the position matches one of the developed theories here discussed or does not match, this article can serve as a guide. Matching theories can be used to guide future decisions. If a theory does not match with the law, then it can at least be excluded from future consideration by jurists seeking the true underlying ethic of the law.
We will start with Canadian jurisprudence. Canadian abortion law is currently unknown. In the absence of a statutory crime of abortion, it may be that abortion is effectively decriminalized in Canada, at any time during pregnancy and for any reason. Clearly such a position would not correspond well to Catholic Doctrine Theory, since Catholic Doctrine Theory would proscribe abortion in all cases. Similarly, Future of Value Theory is an unlikely candidate for explaining current Canadian abortion law. Future of Value Theory would make abortion legally impermissible in a large number of cases. Psychological Personhood would explain a system that permits abortion in virtually all cases, as in Canada, but would fail to account for the Court’s underlying basis for allowing abortion in at least some cases constitutionally: a security right vested in the pregnant woman. Singer’s Sufferist theory, though, would account for this. If a fetus is unable to suffer (or if in late-term pregnancies its suffering counts for less), then disallowing abortion would cause suffering on the part of the woman seeking the abortion. Harming her in this fashion would violate her security (but not the security of the fetus).
U.S. abortion jurisprudence allows most all abortions until the fetus is viable, and thereafter severely regulates or prohibits them. This would fail to comport with Catholic Doctrine Theory or Future of Value Theory because abortions before viability are largely available. Likewise, Sufferist Theory is not a likely candidate, because abortion can be prohibited entirely even during periods in which a Utilitarian calculus would come out against the fetus and in favor of the mother. Psychological Personhood fails as well, but has a close parallel with American jurisprudence. American jurisprudence recognizes a right of privacy to reproduce or not without government interference until such time as another being (the fetus) has an interest against which the privacy interest of the mother must be weighed. Determining when the fetus becomes a person whose interests must be protected by the State is difficult, though, for deciding when the fetus truly becomes a separate being isn’t settled. Instead of using psychological criteria as does Tooley and his colleagues, American jurisprudence appears to use a physical standard: viability (when the fetus can survive outside the womb). It is possible that American jurisprudence uses a biological personhood standard to evaluate a psychological personhood claim.
Finally, German abortion law is fairly clear. Germany holds all abortions outside of narrow guidelines to be illegal and mandates that the State have an affirmative duty to protect fetal life. This jurisprudence would not fit well with Sufferist Theory, since Sufferist Theory would allow abortions based on a Utilitarian calculus that nearly always turns against fetal life. Psychological Personhood is also not a good candidate to explain German jurisprudence in this arena since Germany is not seeking to determine when along the path from conception to birth a fetus acquires rights. In Germany, this analysis has been reaffirmed by the court in Abortion I and Abortion II, saying that the human life begins at conception and that dignity coheres with the individual for the entire duration of life. Catholic Doctrine Theory comes close, in that it would take a hardline stance against abortions (since there is never a justification to take an innocent human life). However, it would not allow for there to be exceptions in cases such as the German Constitutional Court allowed. Donald Marquis’ Future of Value Theory fits these rules nicely, though. Like Germany, a system based on his theory would protect fetal life co-equal with that of adult human beings. Depending on how we judge between harms to two lives with futures of value, Marquis could allow exceptions for saving the life or health of the mother. A particularly nice fit, though, is found in Germany’s unusual allowance for abortion in cases of severe birth defects to the child. Since a child with severe birth defects is very unlikely to have a future in which they value things (compared to a child without the birth defects, or compared to the pregnant woman), it may be permissible to end their lives.

CONCLUSION

This essay attempted to lay out the differing constitutional laws regarding abortion of Canada, the United States, and Germany, and find rough matches for them among assorted ethical theories in an effort to provide jurists and academics with guidance in solving future cases. An analysis of four separate ethical theories on abortion found three of them to have parallels to the jurisprudence of the three respective countries discussed in this paper. A fourth ethical theory did not closely resemble the abortion law of any of the countries studied here.
It is the conclusion of this article that scholars of Canadian Constitutional law who are interested in abortion take some time to become more familiar with Peter Singer’s writings on the role of suffering in the wrongness of killing. Accepting this view in law may have some far-sweeping changes that may need to be examined (particularly in the realm of the rights of non-human animal species). Canadian jurists encountering difficult cases not clearly settled by Canadian Constitutional law might consider applying Singerian philosophy to better aid them in finding the answer which best comports with their previous Constitutional law on abortion.
Scholars of United States abortion jurisprudence should become more familiar with personhood theorists, both of the biological and psychological varieties. Understanding more about these theories may help Americans find a more consistent criteria for determining when a being becomes a separate entity (Is it purely biological or is there some psychological element? Is it both?). A solid understanding of personhood theories may help us understand why our privacy right gives way to the right of a fetus, and why our Supreme Court has chosen the moment of viability to exemplify that time. Is there a better time, or a better measure of when this happens? Psychological Personhood would, a la Michael Tooley, would say that there is.
Readers interested in German jurisprudence and dignity issues may want to read Marquis’ writings concerning the standard abortion arguments, why they are wrong, and why his theory fits well with many of our seemingly contradictory moral intuitions. His theory, based around entities with Futures of Value, can explain Germany’s unusual position in regard to abortion, as well as explaining some of Germany’s strange abortion quirks not found in other Constitutional law frameworks. Marquis’ theory also provides a solid foundation on which difficult cases can find a decent justification for an answer which flows from the rest of the jurisprudence on the issue.
Finding a coherent and consistent ethic on which to base a nation’s abortion law can help prepare individuals to accept and understand the right answer to a case or controversy before it is litigated. Such advance warning serves not only the interests of individuals in society who can know the types of actions in which they are permitted or prohibited to engage, but also the interests of judges and academics who can use the underlying philosophy as a way of guiding their answers to the right conclusion in line with prior precedent. In a world in which alternative reproductive technologies and genetic medicine are rising in popularity, the need to be able to anticipate solutions to these problems grows. Unusual cases are easy to come by and hard to make get rid of, but, hopefully, this article makes disposing of those cases a little easier.
[1] RAYMOND TATALOVICH, THE POLITICS OF ABORTION IN THE UNITED STATES AND CANADA: A COMPARATIVE STUDY 29, (1997).
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id., at 30.
[11] Id., at 32.
[12] Id. Citing another authority, Tatalovich explains: “British influence was still strong in Canadian society during the sixties, especially in legal circles. The Canadian Criminal Code, including its abortion provisions, was adapted from British criminal law in 1892 and tended to follow the latter. The Judicial Committee of the Privy Council had served as Canada’s final court of appeal for constitutional questions until 1949, and British legal precedents were authoritatively cited in most fields of Canadian law.” Id.
[13] Id., at 34.
[14] Id., at 73.
[15] Id.
[16] The Canadian Constitution in 1975 was largely contained in the British North America Act of 1867, which defined the limits of judicial authority. Id.
[17] Id., at 73.
[18] Id.
[19] Id.
[20] Id., at 75.
[21] Id.
[22] Id.
[23] Id.
[24] Id.
[25] While the majority of the Court based its reasoning around the concept of security as guaranteed by the Canadian Charter of Rights and Freedoms, Justice Wilson (the first woman appointed to the high court) argued in the same vein as American jurisprudence on abortion. While not basing her argument explicitly on privacy, she nonetheless contended that the ‘liberty’ guaranteed to Canadian citizens meant that while the State need not approve of every decision made by individuals, there were some decisions that it must tolerate and respect. “A woman’s decision to terminate her pregnancy falls within this class of protected decisions” because it “will have profound psychological, economic, and social consequences for her.” This language echoes strongly the arguments made by the United States Supreme Court concerning protected areas of personal life through its explication of the doctrine of privacy rights. Id., at 77.
[26] Id., at 79.
[27] Id.
[28] Id., at 80.
[29] Id.
[30] Id., at 84.
[31] Id., at 93-95.
[32] Id.
[33] Id., at 27.
[34] Id.
[35] Id.
[36] Id., at 27-28.
[37] Id., at 28. Tatalovich suggests that there were no active prosecutions for abortion in the United States until the twentieth century. Id.
[38] Griswold v. Connecticut, 381 U.S. 479 (1965).
[39] BARRY R. FURROW, et. al., BIOETHICS: HEALTH LAW AND ETHICS 49 (5th ed. 2004).
[40] Id.
[41] Id. While the majority signed onto Justice Douglas’ opinion, Justices Warren, Goldberg, and Brennan based their analysis on the Ninth Amendment, which states that “The enumeration in the Constitution of certain rights will not be construed to deny or disparage others retained by the people.” Id.
[42] Id. Douglas located ‘zones of privacy’ in the penumbras of the rights of association from the First Amendment, the right against quartering of soldiers in the Third Amendment, and in the right against unreasonable searches and seizures from the Fourth Amendment. Douglas also indicated that the right could be seen in the Fifth Amendment’s guarantee against self-incrimination. Id.
[43] Id.
[44] Eisenstadt v. Baird, 405 U.S. 438 (1972).
[45] Roe v. Wade, 410 U.S. 113 (1973).
[46] BARRY R. FURROW, et. al., BIOETHICS: HEALTH LAW AND ETHICS 51 (5th ed. 2004).
[47] Id., at 53.
[48] Id.
[49] Id., at 54.
[50] Id.
[51] Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).
[52] BARRY R. FURROW, et. al., BIOETHICS: HEALTH LAW AND ETHICS 57 (5th ed. 2004).
[53] Id., at 61.
[54] Id., at 61-64.
[55] Id., at 61.
[56] Id.
[57] In Stenberg v. Carhart, 530 U.S. 914 (2000), the Court noted the principles of current abortion law in the United States, summarizing them as follows. “First, before ‘viability… the woman has the right to terminate her pregnancy.’ Second, ‘a law designed to further the State’s interest in fetal life which imposes an undue burden on the woman’s decision before fetal viability’ is unconstitutional. An ‘undue burden is… shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.’ Third, ‘subsequent to viability, the State in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.’” (internal citations omitted) Id., at 68-69.
[58] EDWARD J. EBERLE, DIGNITY AND LIBERTY 164-65 (2002).
[59] Id., at 166.
[60] Id., at 165.
[61] Id.
[62] Id., at 166.
[63] Id., at 170.
[64] Id., at 171.
[65] Id.
[66] Id.
[67] Id., at 165.
[68] Id., at 166.
[69] Id.
[70] Id.
[71] Id.
[72] Id., at 171-72.
[73] Id., at 172.
[74] Id.
[75] Id.
[76] Id.
[77] Id.
[78] Id.
[79] Id.
[80] Id., at 172-73.
[81] Id.
[82] Id.
[83] Id., at 173.
[84] Id.
[85] Id.
[86] Id.
[87] Id.
[88] Id.
[89] Id.
[90] Id.
[91] Id., at 174.
[92] Id.
[93] PETER SINGER, UNSANCTIFYING HUMAN LIFE 188-91 (2002).
[94] Id.
[95] PETER SINGER, ANIMAL LIBERATION 7 (2002).
[96] PETER SINGER, UNSANCTIFYING HUMAN LIFE 188-98 (2002).
[97] LOUIS P. POJMAN & FRANCIS BECKWITH, THE ABORTION CONTROVERSY 210 (1998).
[98] Id., at 211.
[99] Id., at 212.
[100] Id.
[101] Id.
[102] Id.
[103] Id., at 213-14.
[104] Id., at 230-32.
[105] Id., at 344-45.
[106] Id.
[107] Id.
[108] Id., at 345.
[109] Id.
[110] Id.
[111] Id., at 346.
[112] Id.
[113] Id., at 347.
[114] JOHN ARRAS & BONNIE STEINBOCK, ETHICAL ISSUES IN MODERN MEDICINE 330 (5th ed. 1999).
[115] Id.
[116] Id.
[117] Id.
[118] Id., at 331.
[119] Id., at 330.
[120] Id.
[121] Id.
[122] Id., at 331.
[123] See Part I, supra.
[124] See Part I, supra.
[125] See Part I, supra.

Term Paper for course on Death

2007-12-23T02:10:00.000-08:00

M. D.
Phil 676
Term Paper
November 29, 2001

A Duty of Death

When the governor of Colorado, Richard Lamm (served from 1975-1987), remarked to reporters that “Old people have a duty to die and get out of the way,” he did not know what a firestorm his offhand comment would have on his political career. Lamm spent the rest of his political career as governor trying to defend or re-interpret his original statements, often highly unsuccessfully.
Many people discount the concept of the existence of a moral ‘duty to die’ in any circumstances outright. Richard Lamm’s pronouncements are dismissed as being the ravings of a lunatic and the issue is immediately forgotten. In this essay we will return to the public policy decisions and moral issues brought to media attention by Lamm. Are there instances wherein a person has a moral obligation to end his or her life? If so, what are those conditions? If not, on what grounds do we base the rejection of the ‘duty to die?’
In this essay we will concentrate on whether we are morally obligated to die, without considering the specific public policy options available. We make the assumption here that law is codified and legislated moral imperative, based in philosophically ascertained principles, and applicable to the society as a whole. This view is supported by Roscoe Pound, a noted political and legal theorist, who stated that, “…law may be conceived as a philosophically discovered system of principles which express the nature of things, to which, therefore, man ought to conform his conduct.1” Pound continues on claiming that, “…In the hands of philosophers the foregoing conception [above] often takes another form so that law is looked upon as a body of ascertainments and declarations of an eternal and immutable moral code.1” In viewing law as codified morality (of whatever persuasion), we will assume that moral imperatives should be (or are) legislated duties.
To begin an analysis of the topic of a duty to kill one’s self (or to allow one’s self to die), an examination of the dominant paradigms of contemporary medical ethics is necessary. We will start with the examination of patient-centered care, paying particular attention to how ‘Sanctity of Human Life’ frameworks, and ‘Interest’ frameworks view the concept of a duty to die.
We will then turn to another approach to medical ethics, namely that of Utilitarian analysis (the ‘Social’ framework). As an offshoot of Utilitarian consideration, we will consider a feminist argument against having a duty to commit suicide.

PATIENT-CENTERED CARE ETHIC

SANCTITY OF HUMAN LIFE FRAMEWORKS

Let us first begin by considering a ‘Sanctity of Human Life’ framework’s views on the concept of a duty to die. According to those that utilize this framework for resolving ethical dilemmas, all human life is sacred and precious. No human life may be sacrificed for a greater good, no matter how humane, no matter how great the benefit from ending the life. Often relying upon religious messages of life as a gift from a deity, it is seen as impious to destroy that gift of life.
In some ways this framework is a rejection of utilitarian ethical analysis. Proponents of this framework often create examples where utilitarian analysis might be weak, such as murdering a young man for organs that will save the lives of a dozen more people, and use these examples to show that an analysis that does not strictly prohibit killing human life allows all manner of atrocities. Correctly, advocates of this framework show that the needs of others should not always outweigh the need of the individual.
Because of this, followers of this framework will ultimately reject the concept of a duty to die for fairly intimate philosophical reasons. It is not obligatory for a person to end their life when they become a burden to others because it is immoral for a person to end their life before their ‘natural death.’ Any attempt to legalize physician-assisted suicide or active euthanasia is met with strong defiance from proponents of this framework, for fear that it decreases the inherent dignity and value of a human life.
Although Sanctity of Human Life advocates reject utilitarian analysis of duties, they do not explicitly advocate the standard patient-centered view either. The standard medical ethical literature focuses exclusively upon the needs of the patient and the desires of the patient. The desires of the family, friends, or society do not weigh into the equation. However, in a religious context, “…we belong not to each other, or to ourselves, but to God, both by creation and by redemption. We are bought with a price, to use St. Paul’s words. Life is thus a matter of stewardship, rather than ownership. And the lives entrusted to us are to be loved and nurtured until the Master takes them from us.6”
Whereas the typical patient-centered care ethic revolves around the patient’s needs and wishes, the Sanctity of Human Life framework usually (though not always) revolves around God’s needs and wishes. Luckily for patients, God’s needs and wishes overlap with patient-centered care.
Of course, in utilizing a sanctity of human life framework to analyze whether a human being has the duty to kill himself, one falls prey to the numerous objections to this framework. Why are the interests of one human being more important than the interests of many human beings? What is the answer to the dilemma when one individual’s right to exist infringes upon another individual’s right to exist (for example, in the case of an elderly parent whose care destroys the life of their caretaker)? These are questions that the advocate of this viewpoint is ill-equipped to handle. As one writer stated in Canada’s National Post, “…Somerville tells us euthanasia does violence to ‘the human spirit’ and our ‘sense of the sacred.’ At their root, both arguments represent variations on the idea that it is somehow degrading and morally wrong if the time and manner of a human death is not left to a higher power. Only by invoking God… can opponents of euthanasia overcome the utilitarian presumption that it is correct and good to answer a person’s plea for death.6”

INTEREST FRAMEWORKS

Some philosophers have also discussed the issue of a duty to die in terms of interests. This approach follows a line of reasoning that it is morally correct to accede to the wishes of the patient, in an attempt to meet the demands of the ‘best-interests’ test of medical care. All physicians desire to do what is in their patient’s best interests, and Interest framework theorists claim that an individual takes interests in various treatment options, and that following these interests quickly points the treating physician in the direction of the patient’s best interests.
In terms of a duty to die, interest frameworks do not provide much concrete support. Consider the following case. An elderly man fears his growing dementia and knows that he soon will become incompetent. The man has always valued his independence and ability to care for himself in the twilight of his life. However, he foresees a time in the near future where his independence will be highly reduced by the care he will require from his family, and he does not desire to die in that manner. The problem is that the man is intensely afraid of death, and is interested in staying alive, but also recognizes that he is afraid of the life will create for his family, and is interested in a painless, dignified death. How should we resolve what ought to happen with the elderly man? Which interest is truly his ‘best interest?’ Do we have any way of accurately determining this?
Interest frameworks give no true answer to problems, and serve only as a rationalization when the wishes of the patient match those of treating physician. Indeed, the Interest framework can give no real answers to ethical dilemmas, because it is flawed in such a way as to render the conclusions useless. Why should we equate having an interest in something with taking an interest in something? It seems quite obvious that this is not always the case for many people, especially young children (who take an active disinterest in attending school) and college students (who take an active disinterest in attending school).

UTILITARIAN CARE ETHIC

SOCIAL FRAMEWORKS

Utilitarian considerations in medical ethics are few and far between. The ‘greater good for the greater number’ has been discarded as being too brutal and callous for civilized medical personnel. However, if one holds that morality is concerned primarily with how one’s actions affect others, then you are forced to ask why was this rejection of utilitarian principles uncontested for so long?
Matt Ridley, a sociobiologist who writes extensively about virtue, had this to say on the topic of morality and other-centered thought: “Selfishness is almost the definition of vice. Murder, theft, rape, and fraud are considered crimes of great importance because they are selfish or spiteful acts that are committed for the benefit of the actor and the detriment of the victim. In contrast, virtue is, almost by definition the greater good of the group. Those virtues (such as thrift and abstinence) that are not directly altruistic in their motivation are few and obscure. The conspicuously virtuous things we all praise – cooperation, altruism, generosity, sympathy, kindness, selflessness – are all unambiguously concerned with the welfare of others.2”
In his piece, entitled “Is There a Duty to Die?”, John Hardwig makes a bold claim from a utilitarian point of view that, indeed, there is a duty to end one’s life in circumstances where you become an excessive burden to your family. Hardwig speaks in terms of responsibility, citing “a responsibility to try to protect the lives of loved ones from serious threats or greatly impoverished quality, certainly an obligation not to make choices that will jeopardize or seriously compromise their futures.10” Hardwig asserts that in cases of excessive burden, it would violate this responsibility to “do just what we want or just what is best for us; we should choose in light of what is best for all concerned.10”
Those in need of excessive social and medical care are those most likely to be large burdens to their families and friends who support them. Therefore it is among this class of people where one might look to discover those who could be said to hold this duty. Indeed, some philosophers have extended the duty to die concept over all net social resource consumers, though arguably less convincingly.
There are many drawbacks to using a social framework, especially one of the nature proposed by John Hardwig. Only those whose care is an excessive burden have the duty to die, according to this framework, but whether care is an excessive burden to the family is a direct result of the financial, temporal, and emotional resources of all involved. A family with much wealth to pay for high medical premiums, quite a lot of time to spend with an aged dying relative in the hospital, and with plenty of emotional vigor to sustain themselves through the grueling times ahead appear to have a social advantage in these situations than does a family below the poverty line, who have neither the money, nor the time, nor the emotional resources to deal with a problem of this magnitude. In other words, the rich do not have a duty to ‘get out of the way’ for younger generations, but the poor still do have this duty.
Also, Hardwig’s analysis does not need to be stretched far to make arguments for the euthanasia of other undesirable people. A new baby boy may pose an excessive burden to a young single mother, forcing her to drop out of college to take care of the child. The child’s care necessitates loss of time, emotional resources, the woman’s career (quite possibly if she does not continue on to graduate), and a reduction in the quality of her life from the moment of the son’s birth until the end of her life. Could we not claim in this case that the woman is suffering an excessive burden? Should not the infant have an undischarged duty to die? If so, then the mother ought simply to become a surrogate decision-maker for her child (something we grant her anyway) and decide that the child should be euthanized.

FEMINIST ARGUMENTS AGAINST A DUTY TO DIE

Also coming from a utilitarian viewpoint are some groups of feminists who examine the social framework and find the holes in it to be too glaring to be accepted. Viewing humankind not as a collection of individuals, but rather as an interconnected web of relationships, these feminist philosophers conclude that a duty to kill one’s self would increase the burdens on society.
These feminists recognize the need to look outside the individual when determining the solution to these ethical dilemmas. “Feminists have rightly attempted to make explicit what has too often been ignored – i.e., the social and dynamic developmental realities of actual human lives. Human beings must be born, nurtured, reared, domestically maintained and cared for when they are ill, old, or dying. A unique individual self can only be formed within social matrixes of interpersonal relationships; the self is partly created by ongoing self-other dialogues. Each adult person continues to live within embodied, embedded and interpersonal relationships. Inevitably, the private and the personal interact with public and political actions because no one an live or work without receiving domestic and emotional support.5”
In this, both the social framework and the feminists believe that the interests of others are crucial in deciding the issue. However, the feminists adhering to this particular philosophy argue that the interests of others demand that euthanasia not be allowed. “Implicit in the claim is the assumption that an individual owns his or her personal body-self so completely that he or she can kill or extinguish life at will. This concept of absolute human ownership or property right appears morally misguided… Whence would such an individualistic moral right or assumption of absolutely dominant power come from? After all, each individual self-consciousness, like each individual’s body-self, has been created and received from one’s parents and forebears and nourished by the community and culture in which an individual’s life is originally embedded. A human life is a gift from evolutionary biology, natural ecological conditions, parental procreative child-rearing and collective cultural socialization, all transcending the individual power of a self-determining will claiming unilateral life-or-death powers.10”
The problem with this violation of the rights of the ‘others’ in whom we are embedded becomes more clear when you realize that the act of killing one’s self is an act of ending relationships. It is a permanent cessation of all human interdependence with regard to the person who chooses to die. In this way, the loss is felt throughout the entirety of the web of interpersonal relationships. After all, “…such acts are not without interpersonal consequences because we do not exist alone.10”

CONCLUSION

Whether or not we have a duty to die in some cases seems clear. On a utilitarian basis, cases of excessive burden are not difficult to find. These cases are the meat of Hardwig’s analysis of a duty to die. There is certainly merit to his argument that is seems wrong to force (or even allow) your family to carry excessive burdens to care for you in your final months.
However, the feminist claim at interpersonal relationships also strikes a chord of truth. The decision to end one’s life out of a sense of obligation is a decision that we cannot make on our own, and indeed, should not make on our own. The web of relationships in which we are all embedded is affected by the severing of a single strand.
The solution seems to be a synthesis of the two ideas. While Hardwig’s case for a duty to die is solid, the addition of the feminist’s objection is well worth the time. The dying patient ought not simply consider the needs of his family, but also discuss the situation with them openly and honestly, in an effort to soothe the parting blow.
Although the viewpoints presented here provide different accounts of the nature and meaning of a duty to die and disagree about whether there is such a obligation, there is an important point of agreement. It is appropriate, and indeed, imperative, for people who are dying or seriously ill to consider the needs and interests of close family and friends.

Thesis for course on Tax Law

2007-12-23T01:32:00.000-08:00

Legitimacy without Enforcement: The Use of Moral Persuasion in Taxation

M. D.
Tax Policy Seminar
Draft Paper, 10/30/06
Professor B. B.
Review Copy

Ne mea dona tibi studio disposta fideli, intellecta prius quam sint, contempta relinquas.

--Lucretius

Introduction

It is difficult for democratically-minded American citizens to think about the history of the United States without feeling a sense of pride at the result of their unique political experiment. Prior to the Enlightenment, the ideals of which provided the fertile soil out of which the American experiment grew, sovereignty was a quality that entitled the rulers to govern their nations, and it was conferred via the sword, history, or divinity. With the onset of the American experience came a new idea about sovereignty that reversed thousands of years of precedent. Rather than power flowing from the governing class to the governed, authority could instead be predicated on the consent of the governed.
This emphasis on consent of the governed is deeply rooted in American jurisprudence and is enshrined in the United States’ most basic statement of political values: The Declaration of Independence. As demonstrated below, this form of legitimacy for any government carries with it the proverbial sword of Damocles, and such a government holds within itself the seeds of its own potential abolition at the hands of a body politic that no longer consents to its rule. The history of the United States has been a continuing battle between two factions as to the proper expression of consent, with rule-of-law and submission to authority in one camp facing off against civil disobedience and rebellion.
To safeguard the legitimacy of the United States, a citizen must be both vigilant and prepared to enter the fray of this historical battle. The purpose of this paper is two-fold. Firstly, this analysis is done with the intent of seeing that the battle lines between the two camps are made clear through an analysis of history and analogy to current events in the arena of taxation. Secondly, this essay will engage in a normative analysis designed to encourage the American reader to pick up arms in defense of tempering the restless spirit of America with adherence to rule-of-law.

I. Enforcement and Framework

It is difficult to imagine a government ruling for very long over a people who do not recognize the government’s claim to do so as rightful. History is replete with examples of popular uprisings, from revolts against Roman empire-building[1] to the American Revolution.[2] In order to function, a government must possess some minimal amount of loyalty from those over whom it governs; else those over whom it governs will attempt to throw off the chains of their oppression. Great thinkers in Western Civilization have grappled with whether this loyalty is achieved through fear or love,[3] but history has shown that loyalty must be garnered nonetheless.

Loyalty is a measure of the legitimacy necessary to sustain the state. Although legitimacy is difficult to define precisely,[4] a government that is seen as being legitimate gives cause to its citizens to obey the commands issued from their sovereign.[5] Legitimacy confers upon a sovereign an enforceable, but frequently unenforced, claim to have its commands followed. A sovereign who is legitimated must be viewed as having rightful authority over the will of an individual citizen, and to the extent that the sovereign must enforce the sovereign’s will on the citizenry, that legitimacy is in question. The greater the amount of legitimacy, the less often will a sovereign have to compel those it governs to abide by the commands issued from the sovereign because individual citizens will defer their own interest to the interest of the sovereign.

A sovereign must rely on legitimacy or enforcement whenever the interests of the sovereign run counter to the interests of an individual who is governed by the laws issued from the sovereign. Unfortunately for sovereigns, the interests of individual citizens will frequently run counter to the will of a sovereign in maintaining its regime, peace, order, and stability for the nation. Even the most basic commands a government might promulgate will likely be against the individual interest of some citizen,[6] and taxation laws are nearly universal in their adverse stance to the individual interests of at least some citizens.

Inasmuch as a citizen has an interest in acquiring property, a government which decides to take that property via a tax may face some strong opposition. This strong opposition is not unknown in the American experience[7] and can be seen in our storied history concerning tax protests such as the Boston Tea Party or the famous line from President George H.W. Bush: “Read my lips: no new taxes.”[8] While American independence and origins lay in conflicts over taxation, strong opposition to taxation is not unknown outside of the American experience, either. Many countries have experienced tax revolts with varying results.[9]

This is not to suggest that enforcement has no place in legitimating a sovereign. Rather, enforcement may serve as a deterrent to cement legitimacy in a political system that relies on violence for political authority. In a system like that of the United States, enforcement is indicative of a deep problem of legitimacy because it indicates that the law-breaker does not consider the government to be a rightful authority to which his own individual interests must defer.

The two foundations upon which stable, lasting governments rest are “legitimacy and a steady source of revenue.”[10] A government which lacks either of these two bases will fail to endure because it will either be unable to expect compliance from those it governs, will be unable to fund any actions it wishes to take, or both. The submission of a citizen to the expressed will of the sovereign is not only an exercise in showing the legitimacy of the sovereign’s rule, but also an act which reinforces and maintains that legitimacy.[11] When a citizen pays her taxes to her government as the sovereign wills, she is expressing her own submission to the rightful authority of the sovereign over her, and this voluntary act of acquiescence and deference bolsters or maintains the standing of the sovereign in relation to the governed citizen.

When a sovereign must compel citizens to obey the law, it indicates that the law-breakers do not view the sovereign as a legitimate authority that rightly governs their conduct. A citizen who has undertaken an act of cold-blooded murder has voluntarily placed his own will above that of his sovereign who has expressly forbidden precisely such an act. The relationship can be summarized as follows: submitting one’s self to law strengthens the legitimacy of the law-maker, and disobedience to the law weakens the legitimacy of the law-maker. The act of the law-breaker is more than a simple crime of murder. In a very real way, the criminal has declared a private war against the rightful authority of the sovereign to govern his conduct.[12]

A sovereign has a right to expect that the sovereign’s citizens will obey the will of the sovereign, because all citizens have a duty to defer their own independent and individual wills to the overarching will of a legitimate sovereign.[13] Particularly in cases where a legitimate sovereign issues a law which a private citizen feels to be unjust, a citizen must defer his own judgment to that of the sovereign.[14] In a system that allows citizens to legitimate the government through periodic expressions of consent, to place personal consent above obedience is to deny the sovereignty of the state, harming the sovereign’s ability to govern.

Enforcing the law demands an investment from the sovereign. In the American system of government, this can include substantial amounts of invested time and effort by the police, prosecutors, defense attorneys, judges, and criminal justice personnel to carry out sentences. Each of the involved governmental parties must be paid for their time and service, and consume valuable and limited resources in the pursuance of their functions. Because resources are finite and fungible, absent the law-breaker’s private war against the sovereign’s authority, the sovereign could have elected to use the resources for ends not aimed at restabilizing the power of the government over the individual. This loss of valued resources weakens the legitimacy of the sovereign.

In the area of taxation, this loss of legitimacy from wasted enforcement resources is not great. Annual tax prosecutions by the federal government are relatively few, and generally decreasing.[15] Unfortunately, it is unknown whether there is any actual correlation between tax law violations and number of prosecutions.[16] Indeed, substantial and compelling reasons exist which actively militate against the idea that the number of prosecutions recorded in United States courts accurately reflect the actual numbers of tax law violations.[17]

Current tax enforcement actions occur after an Internal Revenue Service audit reveals an alleged deficiency in a taxpayer return. If unable to secure payment from the taxpayer, the Internal Revenue Service can refer the matter to the Department of Justice for prosecution. The Department of Justice does not pursue tax prosecutions as heavily as the number of Internal Revenue Service referrals might otherwise indicate.[18] The Department of Justice routinely declines to prosecute substantial numbers of cases that the Internal Revenue Service refers for prosecution. Since 1980, the Department of Justice has declined to prosecute large portions of the referrals from the Internal Revenue Service, and in no year in the data set did the Department of Justice prosecute more than 75% of the cases referred. In the past decade, the Department of Justice has declined up to 50% of actionable cases.[19]

There is no particular reason to suspect that the cases that the Internal Revenue Service refers to the Department of Justice are without legal merit. If the cases are meritorious, then there are instances of law-breaking which diminish the legitimacy of the sovereign. If the cases are without merit, there is still reason to suspect that there are more cases of tax law violation than are prosecuted by the Department of Justice, since a reasonable person cannot plausibly expect the Internal Revenue Service to catch more than a random sampling of violators. It seems likely then, that there are more cases of tax law violation than result in successful prosecutions.

If there are more tax law violations than successful prosecutions for tax law violations – a prospect which seems fairly certain - then the loss of legitimacy to the government is greater than the immediate data indicate. This supposition is supported by the compliance data received through IRS auditing, which suggests that as many as 14% of all tax revenue due the government in any given year is not submitted voluntarily.[20] This deficiency is greater than US $290 billion to the federal government,[21] with over 80% of that amount due to individual citizen “cheating” through underreporting of income or overreporting of deductions and credits.[22] Each dollar of this loss represents a loss of legitimacy for the sovereign.

As any loss of legitimacy causes harm to the government so deligitimized, the aggrieved government has an interest in repairing this damage proportional to the legitimacy lost in such a manner. This loss of legitimacy may be remediable through various channels as will be discussed in Part III below.

With the loss of legitimacy due to law-breaking and the loss of legitimacy due to investigation and prosecution of violators’ offenses comes another form of delegitimization. Anti-tax rhetoric poses a significant threat to the current authority of the government.[23] Anti-tax sentiment can be a general means of engaging in anti-government discontent.[24] It unifies and encourages dissent from the government.[25] Successful anti-tax rhetoric decreases the citizens’ deference to the authority of the sovereign to impose taxation, which both decreases legitimacy of the sovereign[26] as well as harms the second base of long-term successful governance: a steady stream of revenue.[27]

Anti-tax rhetoric is an integral part of traditional American patriotism and national character,[28] but the damage it does to the United States government makes American anti-tax rhetoric paradoxically anti-American. This rhetoric does not merely emerge from those dissatisfied with government from isolated ranches in the northern mountain states, but is actually a bulwark of the Republican Party in the United States. Many Republican theorists link lower taxation to increased liberty,[29] and seek to strip the government of funds in order to both expand the space available for private actions and to limit the power of the sovereign.[30]

By tapping into political symbols and patriotism, the anti-tax rhetoric of Republican Party decreases the legitimacy of the government. While couched in language concerning fundamental principles of democratic life in the United States (freedom, liberty, and property), the language is used by some as justification for avoiding the already expressed will of the sovereign instead of simply voicing their dissent at the next election. The authority of the State is being subverted by agents of the sovereign, and thus the sovereign has acquired an interest in relegitimizing itself.
In a government based on popular sovereignty, the sovereign authority of the United States is not the Congress, the President, or the Judiciary.[31] It is not the summation of these parts, either, since each of these branches of our government is an agent for the actual sovereign: We the People. The American Sovereign is an abstract entity that expresses the collective American People’s will through our political and judicial processes. Anti-tax rhetoric frequently delegitimizes the sovereign in yet another way by neglecting to recognize that the governed are themselves the ones who govern.

It is not uncommon in anti-tax rhetoric to employ divisive terminology that divides the government from the people whose consent legitimizes the government.[32] A common example of this phenomenon can be found in the idea that taxes are a simple exchange of money for benefits, contract-wise, with a foreign entity (the government).[33] Such a view of taxation encourages us/them views which separate the governed from the governing. It was, after all, ‘We the People’ who voted for the taxes in the first place in order to meet particularlized policy goals.

The American fascination with lower levels of taxation charts a dangerous course through already troubled political and ideological waters, but it is not the only way. A deeper understanding of the underlying dispute between pro-tax and anti-tax groups in American history is useful in determining the appropriate way to navigate through the current delegitimizing influences on American government.

II. Taxation and Order: Jurisprudential and Historical Perspectives

A. Jurisprudence
How individuals view taxation, both from personal economic and moral viewpoints is intimately tied to the history of the relationship between taxation and governmental legitimacy. An individual who finds it to be more palatable on a personal economic level to resist paying taxes can be expected to rationally do so if legal consequences are less onerous than the paying of taxes. An individual who finds a tax scheme to violate some fundamental principle of his morality can likewise be expected to resist paying taxes. Because legitimacy demands adherence to the will of the sovereign, any historical account of governmental legitimacy and taxation necessitates an examination of how individuals feel morally about taxation.
The current legal state of the relationship between taxation and morality is uncertain. Some legal authorities recognize the responsibility of a citizen to pay his or her taxes as a duty going beyond mere positive law. Some courts go further than others in their analysis, but several agree with the general proposition asserted by the case of Snyder v. Routzahn.[34] In Snyder, the court makes its position abundantly clear when it states that “there is always a moral obligation to pay taxes.”[35]
The Supreme Court has even gone a step further, recognizing that tax evasion’s moral character makes fraudulent tax evasion a crime of moral turpitude.[36] The Supreme Court also previously recognized that taxation serves more purposes than simply promoting social welfare.[37] The Second Circuit held explicitly that when evading taxes, the government to whom taxes are owed stands in the same relationship to the tax evader as would a person from whom the tax evader had stolen property.[38] In other words, evading taxes bears the same legal status as stealing property from a private citizen.
The history of Western thought regarding taxation uses moral language to describe an obligation to pay taxes. It has long been a principle of Western religious thought that temporal authorities can lay a moral claim against individuals, which the individuals are bound to obey.[39] This principle, enshrined in both the divine law of Christianity and case law, emphasizes both the moral deficiency of someone attempting to avoid paying taxes (because the act amounts to theft from the government) and also for his or her disobedience to a rightful civil authority. Since, as suggested above, disobedience to civil authority precipitates a crisis of legitimacy, a failure to pay taxes can be linked in natural law to delegitimizing the state.
Courts are not unanimous as to the moral dimensions of expressing obedience to the will of the state via voluntary submission to taxation. For example, Judge Johnsen of the Eighth Circuit stated that “[t]ax liability is necessarily an economic not moral question.”[40] Even given a light streak of judicial resistance to the purported principle of natural law as expressed above, taxation must interact with morality to convince citizens of their duty to pay taxes consistent with the will of the sovereign.[41] Without the threat of moral sanction, one expects individuals to determine their level of obedience to taxation based on the risks of legal consequences.[42] In a world where a taxpayer’s only considerations with regard to paying his taxes were issues of pure positive law, compliance with taxation could therefore be expected to be substantially less than the reader’s present reality, in which a normative analysis must also be given room on the field of a taxpayer’s attention.
Despite the obvious relevance of a normative analysis to taxation, most taxpayers do not associate morality and taxation, and many opt to evade taxation by cheating on their tax payments.[43] The mystery of this conclusion requires explanation. Anti-tax rhetoric and the rebelliousness of the American political culture shed some light on this issue.

B. History
Sovereignty, revolution, and taxation have a storied history in America. The American Revolution was fought as a revolution to gain sovereignty, and involved several issues of taxation as driving forces behind colonial discontent.[44] Revolution played an integral part in the political history of the United States in more than just the origin of the country. As stated above, the legitimacy of the United States has generally been understood to rest upon the consent of the governed. The people can withdraw this consent from the government, and, if withdrawn, the people have the right to alter or abolish the government.[45]
This right to revolt against the state is both necessary and dangerous. This right is necessary as a check against tyranny, as exemplified by the founding of the United States. It is dangerous as well because, once the door is opened, the People may believe that they ought to revolt every time they disagree with a governmental policy.[46] Throughout the history of the United States, a frequently violent sentiment has simmered underneath American political discourse, and has, on occasion, brought the country close to open warfare, as seen below. One side of this battle champions the right of revolution, and the other side represents the forces of law and order. Interestingly, adherents to both sides claim that their side holds the legacy of what legitimizes the state.
In the early years of the newly founded Republic, taxation was much on the minds of Americans and largely with a sentiment of discontent. Three separate tax protests formed much of the political culture of the time, and each was a violent struggle against the sovereign by individuals who were taxed by a government that required taxes. Shays’ rebellion, the Whiskey rebellion, and the Fries rebellion all were expressions of this underlying conflict over the proper role of disobedience to state authority with regard to taxation.

i. Shay’s Rebellion
In 1786, taxes needed by the federal government to pay for debts stemming from the Revolutionary War made it difficult for citizens to pay other obligations, and the banking institutions of the day took the opportunity to seize the collateral property on defaulted loans. Angered by the judicial system’s enforcement of these contracts, some citizens took up arms and closed down courthouses.[47] Ending with a failed attempt to take a federal arsenal, the tax revolt stirred the fears of many political figures as to the stability of their country. If the right to revolt, so necessary to the founding of their country, could be called upon to oppose a necessary function of the government (then the government instituted by the Articles of Confederation), then how long could the government truly last?
On the one hand, Alexander Hamilton, a man committed to law and order at almost any cost, and George Washington who was “mortified beyond expression”[48] by the rebellion, represented the law-and-order style democracy in this ideological battle. On the other hand, Thomas Jefferson represented protest and civil-disobedience oriented democracy, who, upon hearing of Shays’ rebellion, remarked that “…a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical.”[49] Many credit the trouble caused by Shay’s rebellion with the political change from the decentralized and weak federal government under the Articles of Confederation to the stronger and more centralized authority of the federal government under the U.S. Constitution.[50]

ii. The Whiskey Rebellion
In 1791, the anti-tax sentiment again reared its head using violent means with regard to an excise tax placed on whiskey by the Congress. Again, a tax measure designed to help put to rest debts incurred by the nation as a result of the Revolutionary War, the tax angered many influential citizens. The tax was largely collected without much difficulty[51] until 1794 when warrants were served upon seventy-five citizens who refused to pay the tax. The enforcement of the tax in court so angered those opposed to the tax that they began firing on tax collectors who came to collect.[52] Such was the gravity of this situation that President Washington called up the militia to put down the rebellion, noting that “…the very existence of Government and the fundamental principles of social order are materially involved in the issue…”[53] The rebellion largely fell apart,[54] but tensions over the issue continued in political discourse due to the trial of some of the rebels for treason. Then-President Jefferson who had not, from the beginning, seen their actions as detrimental to the Republic[55] pardoned those convicted of treason for their roles in the rebellion. To add a final victory to the Jeffersonian concept of democracy, Jefferson had Congress repeal the Whiskey tax.[56]

iii. The Fries Rebellion and Nullification
The Fries rebellion concerned an excise tax designed to create revenue for an expected impending war with France. The protests surrounding this tax resulted again in protesters subjecting agents of the state to danger.[57] Tempers flared to outright violence when those resisting the tax were put on trial. A large group of men (nearly one hundred) armed themselves with the intent of freeing those who had been taken prisoner. Fearing a civil war, the government called up the militia to disperse the rebellion. When this proved not as effective as President Adams liked, he called in federal troops as well.[58]
Each of these rebellions illustrates the underlying controversy concerning a citizen’s obligation to obey a law with which he personally disagrees. This controversy is not limited to the years immediately following the Revolutionary War or adoption of the national Constitution. Echoes of this same battle sound again and again throughout American history. The 1828 Tariff Act of Congress so angered South Carolina that the South Carolina legislature resurrected a doctrine not seen since the early years of the Republic: nullification. The legislature of South Carolina asserted that if South Carolina disagreed with a federal law, then it could declare the law void. Tellingly, the original law of nullification on which South Carolina depended for its position came from an act created by Thomas Jefferson for the Kentucky legislature in 1798.[59]
South Carolina’s decision to legislatively nullify a federal statute anticipated a federal militaristic response as seen by the language of the statue below. Given that the rebellions on taxes from the earlier years of the Republic generated a ‘law and order’-style response, South Carolina’s inclusion of the following provision into their nullification declaration seems to make a lot of sense. South Carolina’s nullification declaration included the following language: “…we will consider the passage by Congress of any act authorizing the employment of military or naval force against the State of South Carolina… as inconsistent with the longer continuance of South Carolina in the Union.”[60] Unfortunately, the language used couldn’t but provoke a strong federal response.
Thus was the ideological battle of the prior rebellions presented to the United States, again. President Jackson quickly repudiated the nullification proclamation of South Carolina and stated that nullification was incompatible with the existence of the Union. In response, South Carolina nearly precipitated a Civil War. The South Carolina legislature appropriated money to purchase weapons, authorized a state military draft, and issued a call for volunteers – a call which over 25,000 people answered.[61] That a State legislature found 25,000 volunteers ready to engage in open warfare against the federal government over the applicability of a tax law should serve as a stark reminder of the powerful connection between taxation and disobedience to federal authority.
Other echoes of the battle between Jefferson’s revolution-oriented democracy and Hamilton’s rule-of-law democracy can be found in non-taxation related contexts as well. The writings of Henry David Thoreau and Martin Luther King, Jr. both recognize that a citizen does not have a duty to follow the expressed will of the sovereign in some contexts.[62] Indeed, the writings of each man indicate a strong principle which has been used to usher in social change – namely, that adherence to unjust laws makes one complicit in the injustices thereby committed.
The battle over taxation is a specter of a deeper ideological divide within American society, and whilst numerous other examples exist of this underlying dispute between competing ideas, taxation through American history has provoked some of the most powerful battles in that war as evidenced above. The victories and defeats for each side shape our current political climate and our current personal attitudes regarding taxation and the role of normative analysis in ensuring compliance.

III. Restoring Legitimacy through Moral Persuasion

As mentioned in Part I, a tax gap exists between how much money is owed the U.S. government in tax each year and how much money is actually collected through voluntary taxation. The Department of Treasury openly admits that eliminating the tax gap would require radical and fundamental shifts in the tax system which are largely infeasible without a commitment to massive reform.[63] Increasing compliance with tax law via a system of greater enforcement is largely an anathema politically,[64] and the costs of doing so would be legion.[65] Beyond a certain level, expenditures on enforcement would simply be too costly or politically disfavored to continue. We must recall, though, that there are two ways for a sovereign to engender service: out of fear and out of love. Enforcement via sanction is the second-best approach for reasons outlined in Part I. Taxpayers who sincerely believe in the legitimacy of the sovereign can be expected to obey the will of the sovereign even in the absence of sanction.
While compliance with taxation by means of moral persuasion will never be the sole means of encouraging citizens to obey the will of the sovereign, it can make a difference around the margins, and even a small difference (a narrowing of the tax gap by a mere 1-2%) would increase the legitimacy of the state and generate billions in revenue.[66] As noted above in the analytic framework of Part I, successful sovereignty must rest upon these two key concepts (legitimacy and revenue). What makes moral persuasion an especially attractive prospect is that, as a general policy, it requires very little in the way of resource investment.
By what means can an American sovereign convince its subjects to defer their own individual interests to the will of the sovereign, given the American experience with taxation? There are many potential arguments. This essay will attempt to outline some of these arguments which could be considered as persuasive.

A. Patriotic Duty
There is a long-standing idea that sovereigns have the right to tax their subjects, and that individuals should submit to such rightful civil authority.[67] Submitting to a civil authority because of the civil authority’s rightness is a departure from that historical argument, though. An argument stressing duty to country must rely on other sources to normatively justify the position. Terminology in this arena is heavily loaded with judgmental phrases, and depending on from what camp one may hail, such an appeal may be termed either an appeal to nationalism (Jeffersonian democracy) or an appeal to patriotism (Hamiltonian democracy).
Every individual in a society owes certain duties to the sovereign which rules over them.[68] An appeal to patriotism connotes ideation of self-sacrifice, and can extend even to calls during wartime that one should be prepared to sacrifice even one’s life for the good of the nation. For the moment, assume that precisely such a duty exists. Can voluntary submission of appropriate tax to the federal government be analogized to this duty to sacrifice even one’s own life? It can. Each case requires the individual citizen to be prepared to put his or her own individual interests behind the interests of the nation (as determined by the sovereign) in furtherance of the common good. If a citizen has a duty to lay down their life to prevent harm to the sovereign, surely a citizen should be prepared to sacrifice something of far less importance for the same end.

B. Social Contract Theory
Social Contract Theory has many incarnations.[69], [70], [71], [72] Social contract theory posits that individuals must do as their sovereign bids them because the individuals have consented to receiving the benefits of living in their society. This attitude is seen quite explicitly in the analysis given by the character of Socrates in Plato’s Crito.[73] In Crito, the character of Socrates has just been unjustly convicted by an Athenian tribunal for heresy and corrupting the youths of Athens with his ideas.[74] As the dialogue unfolds, Socrates is found sitting in his cell awaiting his execution. His friends, under the guise of visiting their doomed companion, reveal that they have planned an elaborate escape for Socrates that will save his life by smuggling him into exile. If Socrates follows their plan, he will end his days living in a Greek City-State far to the north of Athens, and if he declines their plan, he will pour hemlock into his ear as decreed by the Athenian court.
Socrates chose the latter, claiming that he is bound to the will of his government, under a most sacred duty, because he had consented to all actions taken by his government that benefited him, even when those actions had harmed the individual interests of some other citizen.[75] How, without being supremely selfish, could Socrates ever decry the actions of his government?
A similar, though far less dramatic, argument can suffice to give rise to a duty to obey the will of the sovereign even when it harms some specific interest of the taxpayer (i.e., the taxpayer’s interest in keeping his own money). The taxpayer has freely accepted the benefits of living in his society by traveling on roads, sending his children to school, having a safety net of social services prepared for hard times, having police and fire protection for his person and home, and by living secure under the protection of national defense forces. Why should the individual, having freely accepted these numerous benefits which cost the sovereign resources, refuse the sovereign those same resources in return when they were expected by both parties all along? It is immoral and selfish, and such an act could be likened to breaking one’s oath or violating a contract.

C. Communitarianism
Much of the history of the United States has revolved around the notion of ‘rugged individualism.’[76] Rugged individualism champions the idea that rights are qualities possessed by individual persons, duties are owed to individual persons, and that individuals will succeed or fail based upon their own individual characteristics like effort, ingenuity, and talent. American-immigrant novelist Ayn Rand crowed the virtues of rugged individualism and capitalism as the stepping stones to building the ideal world of the future in two novels that heavily influenced many modern economic thinkers.[77], [78]
Underneath this apparent commitment to egocentric development runs a strain of communitarian thought, which emphasizes community, voluntarism, and an affirmative duty to aid. Under communitarian thought, not only does an individual have a duty to pay their taxes, but an individual might further be expected to make a more active engagement with his community by encouraging others to pay their taxes as well. Communitarian philosophy frequently finds more adherents among women than it does among men because it emphasizes relationships and community more than individual identity.[79] Such an appeal could have the potential to encourage citizens to obey, although it must be noted that individuals with a predisposition to communitarian philosophy would already be likely to be engaged in voluntary compliance.

D. Self-interest and Fairness
An appeal from self-interest and fairness may also be a significant source of moral persuasion to convince taxpayers to comply with tax law.[80] Moral argumentation and positive law can both be seen as remedies for a serious underlying problem: anarchy. This truth was recognized by Thomas Hobbes in his work, Leviathan, when he referred to the problem of the state of nature as ‘a war of all against all.’[81]
Modern Economics posits a similar solution to the problem of the single-iteration Prisoner’s Dilemma form game. A Prisoner’s Dilemma game can be summarized best by telling a short story that gives rise to its name:
Two individuals (criminal and co-conspirator) are brought into the police station after having been arrested for suspicion that each jointly participated in a kidnapping and murder. The two individuals are separated into different interrogation rooms and each offered the same deal. The DA informs each player that the police do not have enough evidence to charge the individual with murder, but that more than enough evidence is present to charge and get a conviction for the kidnapping of the deceased victim. If the prisoner will testify against his comrade sitting in the other room, then the prisoner will be credited for helping an investigation and will get away with only a minor weapons violation (a misdemeanor in this jurisdiction). His colleague, however, will be convicted of the murder and will spend the next 20 years behind bars. If both prisoners agree to testify, each will receive credit for doing so, and will only spend 10 years in prison each.
If the prisoner refuses to testify and his colleague will take the deal, the prisoner will spend 20 years in jail. However, if each man remains silent and refuses to help the DA with her case, then the murder charge will have to be dropped and each man will be convicted of only the lesser offense of kidnapping (5 years in prison each). What should the individual prisoner do?
A rational prisoner will always choose to testify in such a scenario. If his co-conspirator takes the deal, then the prisoner will be better off if he testifies as well (earning him only 10 years in prison as opposed to the 20 year sentence). If his co-conspirator does not cooperate with the DA, then the prisoner is sill better off testifying against his co-conspirator (earning him just the misdemeanor charge instead of the 5 years he could have been behind bars if he had refused to speak).
Unfortunately for both the prisoner and the co-conspirator, each rational man will perform the same calculus and each man will choose to testify against the other. This results in each man being convicted of the murder (with time credited for their cooperation) with a 10 year sentence. The irony is that had each man simply stayed silent, each would only serve a 5 year sentence for the kidnapping.
The Prisoner’s Dilemma form game teaches a student of rational choice theory that following one’s own short-term self-interest can generate sub-optimal outcomes for himself. This situation can be likened to the dilemma of taxation. No individual has a short-term interest in paying money to the government in taxes, but so long as most individuals do so, the rational taxpayer will abstain from paying taxes (or will abstain from paying as much as the taxpayer is obliged). A rational taxpayer who cheats on his taxes will still receive the benefits those taxes pay for, and will claim those benefits by driving on newly-paved roads and enjoying publicly funded parks. As long as it is true that a ‘cheating’ player can reap the benefits of his self-interest while still gaining the benefits of cooperation, two avenues of moral persuasion are open to argumentation.
Firstly, there is an argument from self-interest. The Prisoner’s Dilemma form game uncontrovertibly shows that in many situations, individual self-interest leads to sub-optimal outcomes for the individual player. The player could reap a better outcome if the player followed a higher-order rationality that emphasizes iteration of the game.[82] By constraining the selfish desire to follow short-term self-interest, the player can reasonably expect to have other constrained maximizers of expected utility engage in new form games with him. This strategy of constrained maximization will increase his realized utility faster than a strategy of unconstrained maximization, and is thus in his ultimate self-interest.
Secondly, there is a more humanistic approach to the lesson of the prisoner’s dilemma. A rational player will realize that it is always better off to follow his short-term self-interest in a single form game, especially when the other players all choose to constrain themselves through obedience to some guiding principle, because the defecting player can reap the societal reward without having to bear the societal cost. But to engage in this act requires the individual to be willing to do something that most people would find abhorrent: he must be willing to be the architect of unfairness and injustice.
It is a simple formulation of the notion of fairness that people situated similarly be treated similarly. Persons under the same obligation should bear that obligation in the same manner and receive similar benefits for doing so. To be the defector among a group that chooses to constrain their pursuit of short-term self-interest means that the defector must be willing to create an unfairness where prior to his act there was none. No person that truly cares about fairness or equality can do this in a morally permissible way.

Conclusion

This essay has highlighted the difference between Hamiltonian democracy and Jeffersonian democracy, and it has attempted to show that Hamiltonian democracy and its accompanying emphasis on orderly recognition of dissent through elections is preferable to Jeffersonian democracy and its concomitant commitment to expressing dissent through noncompliance to established law. It is the position of this essay, and this author’s contention, that Hamiltonian democracy provides the most solid basis for understanding the history and contemporary context for the debate over obedience to tax law.
Obedience to rightful civil authority is a tradition grounded both in civil and natural law. Noncompliance with tax law harms the legitimacy of the sovereign in that it exemplifies defiance to the authority of the sovereign. This defiance harms the sovereign in many ways, and there are two main methods to deal with violators of law: sanction or reason. Sanction is costly, politically unsavory, and inefficient. Moral persuasion, through appeals to the reason of the taxpayer, may be a method by which the sovereign can attempt to restore the rightful legitimacy which is lost through an act of citizen defiance. This essay presented several potential arguments which can be made to this end.
Paying taxes is simply a duty of every citizen to his or her sovereign, and while it may be unpalatable, it is morally abhorrent to evade this responsibility and to shift the burden which was assigned to a particular citizen onto the back of another. Legitimacy, sovereignty, and morality all compel the same result, and it is high time for all individuals to take heed.

[1] NOVA: Ancient Refuge in the Holy Land, (WGBH Educational Foundation, air date unknown), at
http://video.google.com/videoplay?docid=3560238467536024101
[2] Adam Goodheart, The Nation: Celebrating July 2, -- What if…; 10 Days That Changed History,
N.Y. Times, July 2, 2006.
[3] See, Niccolo Machiavelli, The Prince (George Bull, trans., Penguin Classics 2003) (1512).
[4] Robert W. Tucker & David C. Hendrickson, The Sources of American Legitimacy, Foreign Affairs, Nov./Dec. 2004. (“Legitimacy arises from the conviction that state action proceeds within the ambit of law, in two senses: first, that action issues from rightful authority, that is, from the political institution authorized to take it; and second, that it does not violate a legal or moral norm. Ultimately, however, legitimacy is rooted in opinion, and thus actions that are unlawful in either of these senses may, in principle, still be deemed legitimate. That is why it is an elusive quality. Despite these vagaries, there can be no doubt that legitimacy is a vital thing to have, and illegitimacy a condition devoutly to be avoided.”)
[5] This essay will use the term sovereign to refer to the source of legal authority within a
governmental system. Common parlance uses the term generally to denote a monarch or similar unitary governmental leader. This author uses the term in the manner of many legal positivists to describe the entity which gives rise to positive law. A sovereign may be a monarch, a parliament, a judge, or even an abstract entity such as ‘We the People…’
[6] Commands given in law will nearly always be counter to the immediate individual interests of a
citizen. Even a command forbidding a citizen from killing another citizen in cold blood – a command most all readers will agree is necessary for the maintenance of a civilization – is counter to the interests of those whose personal well-being could be heightened by removing potential and actual rivals from their society. Virtually all criminal laws fall under this general category, and absent reliance on the sovereign’s legitimate claim to forbid such actions, individuals would be free to carry on such endeavors. This is not to suggest that the government’s commands are the only constraints on human conduct. Many people are guided by personal codes of ethics and morals, religious precepts, ‘common-sense’, and intuition in their dealings in a society. It is of paramount importance that a sovereign’s will be the overriding principle in guiding human conduct when these other forces are silent or contradictory, at the minimum. This essay will not attempt to establish that the will of the sovereign should override these other forces in all scenarios.
[7] Marjorie E. Kornhauser, Legitimacy and the Right of Revolution: The Role of Tax Protests and
Anti-Tax Rhetoric in America, 50 Buff. L. Rev. 819, 822 n.6 (2002).
[8] President George H.W. Bush, Republican Party Nomination Acceptance Speech (August 18,
1988), at http://www.presidency.ucsb.edu/shownomination.php?convid=4
[9] In a particularly noteworthy tax revolt from antiquity, Holy Roman Emperor Charles V answered
a refusal to pay taxes with violence. After attacking the offending city, the Emperor forced guildsmen “to walk round the city walls wearing nooses round their necks.” Clare Thomson, “Star Struck in Flanders,” INDEP. (London) Sept. 26, 1988, at 22 (as quoted in Marjorie E. Kornhauser, Legitimacy and the Right of Revolution: The Role of Tax Protests and Anti-Tax Rhetoric in America, 50 Buff. L. Rev. 819, 822 n.6 (2002).)
10 Marjorie E. Kornhauser, Legitimacy and the Right of Revolution: The Role of Tax Protests and Anti-Tax Rhetoric in America, 50 Buff. L. Rev. 819, 820 (2002).
[11] Id., at 826-27.
[12] The overall legitimacy of a sovereign’s rule is not dependent upon the acquiescence of a single
individual, of course. It is the sum total of all individual citizen’s subjection to the will of the State which determines whether the government is legitimized by their actions. The fewer the number of law-breakers, the greater is the legitimacy of the sovereign.
[13] John Finnis, Natural Law and Natural Rights (1980) at 361-2.
[14] Wojciech Sadurski, Law’s Legitimacy and Democracy-Plus, 26 Oxford J. Legal Stud. 377, 388
(2006). (presenting a standard argument concerning a citizen’s duty to obey).
[15] Total Federal Tax Prosecutions According to U.S. Courts, Transactional Records Access
Clearinghouse, Syracuse Univ. (2005)., at http://trac.syr.edu/tracirs/highlights/current/aousc.html
Federal prosecutions have fluctuated between 1981 and 2004, including some multi-year trends where prosecutions increased. For example, between 1983 and 1987, federal prosecutions went up by nearly 50% (from 1,060 prosecutions in 1983 to 1,550 prosecutions in 1987). This single span and slight single-year variations aside, the general trend of the data reviewed indicate that there are fewer federal prosecutions for tax violations over time. If measured from the highest number of prosecutions (in 1987, at 1,550 prosecutions) to the last available year of data (2004, with 541 prosecutions), a reduction of nearly 65% is measured.
[16] A reduction in the number of prosecutions may indicate a reduction in the numbers of violations
of tax law, but it may also be explained by many other situations as well. The Internal Revenue Service may not be catching as many tax evaders, the Department of Justice may lack the resources to pursue violators of tax law, or the Department of Justice may lack the motivation to pursue tax law violators as robustly as they were able two decades previously.
[17] Internal Revenue Service Staff (employees at close of year), Transactional Records Access
Clearinghouse, Syracuse Univ. (2005)., at http://trac.syr.edu/tracirs/trends/v10/irsStaff.html Records indicate that during the year in which there were the largest number of tax prosecutions (1987), the Internal Revenue Service also employed more individuals than it has at any time during the past decade. In 1987, the Internal Revenue Service employed 114,018 workers compared to only 94,575 workers in 2004. This loss of workers may indicate a reduction in resources and ability to pursue investigations and referrals to the Department of Justice as vigorously as they once did.
[18] Outcome of IRS Criminal Investigations, Transactional Records Access Clearinghouse, Syracuse
Univ. (2005)., at http://trac.syr.edu/tracirs/trends/v10/irscriminv-2.html
[19] This is not to suggest that the Department of Justice does not secure convictions for many of the
cases which it does choose to prosecute. The number of cases in which prosecutions result in convictions is fairly high. In 2004, for example, the Department of Justice argued successfully for conviction in more than 80% of the cases it prosecuted. Id.
[20] Office of Tax Pol’y, U.S. Dep’t of Treas., Pub. No. HP-111, “A Comprehensive Strategy for
Reducing the Tax Gap” (2006), at http://www.ustreas.gov/press/releases/hp111.htm
[21] Id., at http://www.ustreas.gov/press/releases/reports/otptaxgapstrategy%20final.pdf
[22] Id.
[23] Marjorie E. Kornhauser, Legitimacy and the Right of Revolution: The Role of Tax Protests and Anti-Tax Rhetoric in America, 50 Buff. L. Rev. 819, 823 (2002).
[24] Id.
[25] Id.
[26] Id.
[27] Id., at 820.
[28] Id., at 824.
[29] Id., at 888.
[30] Id. While still a presidential nominee, President George W. Bush stated that “[A] government with unlimited funds soon becomes a government of unlimited reach.” Id., at 888 n.193.
[31] There are many sources a political theorist may look to in order to legitimize a sovereign. Tradition, coercive force, self-interest, and moral obligation have all been argued for. This author is only considering ‘consent of the governed’ as an applicable measure of legitimacy for the purpose of this article, due to the historical and ideological underpinnings of the uniquely American experience.
[32] Id., at 892
[33] Id.
[34] 55 F.2d 396 (N.D. Ohio 1931).
[35] Id., at 397.
[36] Jordan v. De George, 341 U.S. 223, 229 (1951).
[37] Hill v. Wallace, 259 U.S. 44 (1922).
[38] United States ex rel. Berlandi v. Reimer, 113 F.2d 429,430-31 (2nd Cir. 1940).
[39] Christian religious texts indicate that an individual bears an obligation to pay taxes to temporal
authorities, so long as the payment of such taxes does not interfere with the discharge of an individual’s other duties as imposed by the religion. This proposition is founded upon a narrative from Matthew 22:15-22, in which the figure of Jesus is questioned regarding an individual’s duty to submit to taxation from the Roman Empire. The response from the character of Jesus begins with a command to “[r]ender therefore unto Caesar the things which are Caesar’s…” This command is still carried forth in modern Catholic doctrines. The Roman Catholic Church recognizes a moral duty to obey law and pay taxes. “Obedience to authority and co-responsibility for the common good generate a moral obligation to pay taxes, exercise the right to vote, and share in the defense of the country. Pay to all what is due them – taxes to whom taxes are due; revenue to whom revenue is due; respect to whom respect is due; honor to whom honor is due.” Catechism of the Catholic Church, Pt. 3, sec. 2, art. 4, §2240.
[40] Marienfeld v. United States, 214 F.2d 632 (8th Cir. 1954).
[41] Leo P. Martinez, Taxes, Morals, and Legitimacy, 1994 B.Y.U. L. Rev. 521, 522 (1994).
[42] Id.
[43] Eugene Bardach, Moral Suasion and Taxpayer Compliance, 11 Law & Pol’y 49 (1989).
[44] Marjorie E. Kornhauser, Legitimacy and the Right of Revolution: the role of tax protests and anti-
tax rhetoric in America, 50 Buff. L. Rev. 819, 840 (2002).
[45] “We hold these truths to be self-evident, that all Men are created equal, that they are endowed by
their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness. That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, That whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or abolish it , and to institute new Government, laying its foundation on such Principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” The Declaration of Independence para. 2 (U.S. 1776).
[46] This concept is also embodied in the Declaration of Independence. The sentence immediately
following the passage quoted in footnote 45, supra, reads: “Prudence, indeed, will dictate that
Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.” The Declaration of Independence para. 2 (U.S. 1776). After making this point, though, the document proceeds to reiterate its main thesis. “But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.” The Declaration of Independence para. 2 (U.S. 1776).
[47] Gary North, “John Hancock’s Big Toe and the Constitution,” World Wide Web, at
http://www.lewrockwell.com/north/north247.html
[48] Letter from Thomas Jefferson to James Madison, in Daniel A. Smith, Tax Crusaders and the
Politics of Direct Democracy, at 174. (1998).
[49] Id.
[50] Marjorie E. Kornhauser, Legitimacy and the Right of Revolution: the role of tax protests and anti-
tax rhetoric in America, 50 Buff. L. Rev. 819, 843 (2002).
[51] Some violence was associated with the collection of the whiskey excise tax, and at least one tax
collector was tarred and feathered for trying to collect on the excise tax. Id., at 845.
[52] Id., at 845-46.
[53] Id., at 846.
[54] David J. Depippo, “I’ll take my sin taxes unwrapped and maximized with a side of inelasticity,
please,” 36 U. Rich. L. Rev. 543, 546 (2002).
[55] Marjorie E. Kornhauser, Legitimacy and the Right of Revolution: the role of tax protests and anti-
tax rhetoric in America, 50 Buff. L. Rev. 819, 846 (2002).
[56] David J. Depippo, “I’ll take my sin taxes unwrapped and maximized with a side of inelasticity,
please,” 36 U. Rich. L. Rev. 543, 546 (2002).
[57] The danger associated with the collection of the tax seems not to have been quite as great as in the
previous two tax rebellions. The tax protest was termed the “Hot Water War” after an angry housewife poured hot water on a tax assessor who had come to collect the excise tax. Marjorie E. Kornhauser, Legitimacy and the Right of Revolution: the role of tax protests and anti-tax rhetoric in America, 50 Buff. L. Rev. 819, 850 (2002).
[58] Id.
[59] Id., at 854.
[60] Id., at 855.
[61] William Freehling, Prelude to Civil War: The Nullification Controversy in South Carolina 1816-
1836, at 275 (1968).
[62] Robert L. Hayman, Jr., Nancy Levit, & Richard Delgado, Jurisprudence - Classical and
Contemporary: From Natural Law to Postmodernism, 2nd ed., 42-53 (2002).
[63] Office of Tax Pol’y, U.S. Dep’t of Treas., Pub. No. HP-111, “A Comprehensive Strategy for
Reducing the Tax Gap” (2006), at http://www.ustreas.gov/press/releases/reports/otptaxgapstrategy%20final.pdf
[64] Eugene Bardach, Moral Suasion and Taxpayer Compliance, 11 Law & Pol’y 49, 66 (1989).
Indeed, it appears as if political support for increasing tax enforcement is not nearly as strong as it could be. Refer to the evidence of resource shortage given above (fn. 15, fn. 17, supra). At the time of Bardach’s writing, a poll of U.S. taxpayers showed that only 7% of taxpayers were in favor of increasing enforcement tools like withholdings, a mere 6% wanted more auditors and collectors, and only 24% were willing to consent to increased prosecution for tax evasion. Id., at 63.
[65] Id., at 66.
[66] Id.
[67] See discussion of natural and divine law sources at note 39, supra.
[68] A study conducted before the Bardach’s writing indicated that 79% of a national sample of
taxpayers believed there was a patriotic duty to pay taxes. Eugene Bardach, Moral Suasion and Taxpayer Compliance, 11 Law & Pol’y 49, 67 (1989).
[69] Jean-Jacques Rousseau, On the Social Contract, in The Basic Political Writings 144 (Donald A.
Cress ed. 1988)
[70] John Locke, Second Treatise of Government (Richard Cox ed., Croft Classics, 1982).
[71] Thomas Hobbes, Leviathan (A.P. Martinich ed., Broadview Literary Texts, 2002).
[72] Plato, Crito, in The Trial and Death of Socrates: Four Dialogues 43 (Shane Weller ed. 1992).
[73] Id.
[74] Id.
[75] Id.
[76] The notion of rugged individualism was brought to the fore of American consciousness during the
presidency of Herbert Hoover who spoke at length on the subject following World War I. President Herbert Hoover, Rugged Individualism Speech, 1928 (at http://www.civics-online.org/library/formatted/texts/hoover_individualism.html).
[77] Ayn Rand, Atlas Shrugged, 1957.
[78] Ayn Rand, The Fountainhead, 1943.
[79] Although the data are still under intense scrutiny, Difference Feminist theorists have produced
impressive evidence that men and women develop vastly differing moral senses. According to Carol Gilligan, men will more frequently apply an ethic of justice, stressing individual rights and responsibilities, while women typically apply an ethic of care, which focuses more on relationships and inter-relatedness. Carol Gilligan, In a Different Voice: Psychological Theory and Women’s Development, 1993.
[80] Eugene Bardach, Moral Suasion and Taxpayer Compliance, 11 Law & Pol’y 49, 56 (1989).

[81] Thomas Hobbes, Leviathan 93-98 (A.P. Martinich ed., Broadview Literary Texts, 2002). Hobbes
envisioned a ‘state of nature’ in which government did not exist. This existence would be ruled by those who were the most ruthless and violent, and would be ‘red in tooth and nail,’ and where an individuals existence would be “solitary, poor, nasty, brutish and short.” Id., at 95-96. So terrible would this anarchy be that mankind would lay aside most any natural right to secure order and tranquility.
[82] David Gauthier, a Canadian who studies the intersection of Game Theory and Philosophy, argues
in his book, Morals by Agreement, for precisely this proposition. Maximization of expected utility, unconstrained by an agreement to abide by rules which take on the form of morality, leads to sub-optimal outcomes. To combat this problem, morality is invented to constrain individuals from pursuing this strategy in the form game. Individuals who choose a strategy of unconstrained maximization lower the expected utility of any interaction for themselves because constrained maximizers refuse to interact with them. David Gauthier, Morals by Agreement (1986).