Monday, June 13, 2011

Saletan, Kevorkian and the progressivist fork


Whenever I read William Saletan’s apologiae for the culture of death, I read a man who’s never completely comfortable with the positions he takes.

In a post on The Slate dated June 3, Saletan writes about his father’s passing from cancer two months ago, and places it in the context of the late Dr. Jack Kevorkian and assisted suicide. The core of his argument was that, although “Kevorkian … was lax about investigating palliative options and verifying that his patients were terminally ill”, nevertheless, “he brought assisted suicide out of the shadows, and behind him came a wave of reformers more careful about drawing lines.” As a result, Oregon’s assisted-suicide law has provisions that prevent it from giving legal shelter to euthanasia … at least on paper.

Along the way, Saletan commits the “people are gonna do it anyway” fallacy: “Assisted suicide, it turns out, is a lot like abortion. No government can stop it — I would have risked jail to get the pills if necessary — and efforts to enforce its prohibition only make it less careful and humane.” To which Ross Douthat, in a NYTimes.com blog entry dated June 6, responds:

[Saletan] doesn’t want to live in a police state where hospice nurses are arrested for dispensing morphine too freely, and neither do I. But it’s possible to accept that no government can “stop” assisted suicide or abortion completely (and that no government should create the kind of deeply- invasive mechanisms required to try) without believing that either practice should therefore be legalized and legitimated.



To me, this equation of legalization with legitimation [sic] is a big mistake with perilous implications. A government that prohibited every illegitimate practice — adultery, greed, cruelty, lying, Anthony Weiner’s sexting — would be horrific. A free society needs space in which to sort out our values. It needs to tolerate the legality of practices whose legitimacy we can thereafter debate.

Let us do it now, and we can argue about whether we should do it later? Not only is this bad legislative practice, it’s an infirm grasp of what the word legitimate means. In fact, you can’t settle the question of whether the law should allow a practice without coincidentally deciding the limits of its legitimacy — the process is “baked in”, if you will. An action is legitimate, in the word’s primary sense, as long as it’s within the limits of the law … and it matters not whether we speak of criminal or civil law.

But moreover, Saletan’s response to Douthat reveals the other tine of a line of argument we can call the “progressivist fork”: If the law in question isn’t self-enforcing, then its enforcement must be tyrannical. In support of this, he throws up a handful of words, on the face value of which we must suppose a sort of queasy tolerance — they’re bad, Saletan seems to be saying, but they’re really not that bad, are they?

Just to nitpick, though, of all the practices Saletan tosses off for our inspection, the only one without legal limits is adultery. Greed, cruelty and lying do have limits beyond which a person can’t go without legal repercussions (e.g., embezzlement, child abuse, perjury); even now attorneys are going through Rep. Weiner’s “sexting” messages to see if he transgressed laws.

As I’ve said before, the “people are gonna do it anyway” argument falls apart when it butts up against the hard fact that no law is self-enforcing: there isn’t a law yet written which doesn’t proscribe something people do now or have done in the past. Either the statement indicts all laws equally or it’s a waste of time; indeed, it’s a waste of time because it indicts all laws equally, giving us no real insight into the value of any particular law.

The nitpicking, though, is not pointless, because it describes instances where law is in place to a comfortable degree. Since there’s no burgeoning movement to undo perjury penalties or annul the embezzlement conviction of former Baltimore mayor Sheila Dixon, I think it’s safe to presume very few people consider such laws an onerous burden on society.

As no law is self-enforcing, it’s surely within the purview of a free society to decide to what degree moral principles should be enforced and the amount of community capital that should be expended on enforcing them. That’s what the democratic process is for: to provide the appropriate space in which we can “sort out our values”.

Saletan is thus conflicted. On the one hand, he has a prior commitment to the progressivist relativism which holds that a person should be free to decide for herself what’s right and what’s wrong. On the other hand, he’s enough of a realist to understand that a community or society can’t survive such a relativism applied across the board. He wants assisted suicide to be legal, but has learned from Kevorkian that the line between assisted suicide and euthanasia is easy to cross.

And here, for me, is where progressivist relativism ultimately falls down as a legal theory. Even granting that, in the end, we all make our own choices, it doesn’t follow that the community must respect all choices equally. To survive, protect and nurture its citizens, the community must place certain choices out of bounds to the degree its citizens believe necessary.

The assertion that God has given us certain inalienable rights doesn’t conflict with this fact. Indeed, to protect these rights, we have to set actions out of bounds which threaten those rights; the ultimate irony of law is that we must have police-enforced limits in order to have rights at all.

As for the “progressivist fork”, its presentation of a forced choice between self-enforcing laws or a police state is a false dilemma. As such, it fails to indict the present system; we don’t have to tolerate assisted suicide or euthanasia simply because we can’t prevent everybody from “helping” their loved ones into the hereafter.

We’ve already sorted out the value: “Thou shalt not kill.”