On legislating exceptions

It has become almost a cliché that the media more and more shape our view of things as a society. There is a particular peril in this, as G.K. Chesterton (himself a journalist) noted almost a century ago:

“It is the one great weakness of journalism as a picture of our modern existence that it must be a picture made up entirely of exceptions. We announce on flaring posters that a man has fallen off a scaffolding. We do not announce on flaring posters that a man has not fallen off a scaffolding. … Busy editors cannot be expected to put on their posters, "Mr. Wilkinson Still Safe," or "Mr. Jones, of Worthing, Not Dead Yet." They cannot announce the happiness of mankind at all. They cannot describe all the forks that are not stolen, or all the marriages that are not judiciously dissolved. Hence the complete picture they give of life is of necessity fallacious; they can only represent what is unusual. However democratic they may be, they are only concerned with the minority.” (Emphases are mine. I apologize, blushingly, that I cannot identify the edition and page for this quotation, which I scribbled in a notebook while reading “The Ball and the Cross” some time ago.)

I might add, completing the idea, that we hear always of a minority comprised of those who do exceptional (and, often, exceptionable) things. Thus, we hear of parents who are negligent or abusive of their children; we do not hear of the vast majority who are not. Their stories are regarded as unexceptional, and therefore as un-newsworthy. We hear of someone committing suicide by jumping from a bridge; we do not hear of the hundreds of thousands who do not. Therefore we begin to form a picture of modern existence that is, indeed, fallacious.

The fallacy consists precisely in regarding the exception as the rule. Because we hear of certain parents abusing their child, and never hear of those who do not, all parents are regarded as potential abusers of children. Because we hear of one man who leaps from a bridge, and neglect the fact that hundreds of thousands do not, every bridge is seen as a venue for suicide.

We see this in the case of the abuse of children and vulnerable adults by certain priests. The media focuses our attention, appropriately enough, upon the abusers and the abused. But nothing is noticed of the fact that the vast majority of priests do not abuse. Rather, priests are regarded as potential abusers of children, and there develops a whole literature around why this is the case. Celibacy, we read, is unhealthy and will necessarily result in sexual abuse. The fact that, in the vast majority of cases, it does no such thing is not taken into account, because the only priests in regular public view are those same few who have abused. We are given the impression that a priest who lives his vow of celibacy without abusing others is almost certainly an exception. The exception has become the norm and, curiously, the norm has become the exception.

All of this would add up to little more than an amusing piece of folly except for the ominous fact that we began, some time ago, to legislate for exceptions. This means that the exception is no longer merely regarded as the rule, but that it is the law of the land that it must be the rule. Examples abound. It is, for example, the law of the land that the medical records of children (minors who are, in some cases twelve, in other cases thirteen years old) who are pregnant, who have been sexually assaulted, who seek or procure an abortion, who are diagnosed with HIV, or who have been diagnosed with a reportable (!) sexually-transmitted disease, cannot be disclosed to parents, except with the written permission of the children. The intent behind such laws is to protect children. Because, it is reasoned, it is conceivable that some parents might overreact in such cases as these, the state has determined that no parents are to be informed of the situation of their children, without the consent of the children. The exception has determined the rule, and the rule is state or federal law.

To legislate for exceptions produces, necessarily, bad legislation. What this particular legislation ensures is that a child who finds him or herself in any of these situations is required, by law, to give or withhold consent in the manner of an adult. Now the very definition of a child is that of one who does not yet possess the capacity to assume full moral responsibility for his or her own acts. That incapacity is manifested in the fact that children can –and very often do– exercise poor judgment. Yet to invoke the very relationship upon which the child most depends, that of his parents, is, by this sort of legislation, left at the discretion of the child, in the very moment that the exercise of right judgment in the matter at hand is most likely to be impaired. Every child is reluctant to confess his or her wrongdoing, and no child is fully capable of sorting out his or her responsibility for what has happened. It is therefore not the case that a reluctance to inform their parents is any evidence that children are at risk. It is, rather, evidence of the fact that they are children! The only conceivable cause for such legislation is that the reality of childhood (the most ordinary of ordinary things) was not, for a moment, considered. Rather, the possibility that certain few parents might react inappropriately –like the exceptions regularly depicted in the media– has driven the state to deprive all parents of access to critical information about their children.

Proper legislation would begin with the assumption that the vast majority of parents will act in the best interests of their own children, and that the parents who do not are exceptions, who therefore grab the attention of the media. When children are threatened with abuse or abandonment then, certainly, they require an advocate. But they require an advocate precisely because they are, as children, not yet fully capable of exercising full responsibility for themselves. They are dependent upon their parents and families who, by law, are kept in ignorance of their situation –unless their children have the judgment to realize that their parents are, normally, their first and best recourse.

What is saving in all of this is that ordinary, unexceptional parents abound, and that they are capable of caring for their children despite the obstacles that the state more and more insists upon placing in their way. What is regrettable is that the state was once thought to act for the sake of what is common –not what is rare and exceptional– and that we can anticipate many more obstacles in our unexceptional pursuit of ordinary things.

The person and the common good

Several took exception to my contention that there is no cause greater than a person; that a soldier, for example, does not give his life for a cause that is greater than he is. Four objections were raised. I will state them as I have understood them; please correct me if I have not caught the force of the arguments:

(1) If there is no cause greater than the individual person, then the result will be nihilism. If we can state the argument more formally: Proper order in society demands that individuals subordinate themselves to some cause or purpose that is greater than themselves.

(2) Colloquially understood, the statement "they have died for a cause greater than they are" means that immediate self-interest has been sacrificed for the sake of the common good. The common good is held to be greater than the self-interest of the individual. Note, however, that in this case the President's reference was to those who gave their lives for liberty. Might we therefore put the objection in this way: liberty is a common good that is of greater dignity than the life of an individual person.

(3) There is a cause greater than the individual person, which is the good of the many: the good of the many is a cause that is greater than the good of the individual person.

(4) The fourth objection might be stated thus: if there is no cause greater than the individual person, then there is no reason for sacrifice for the sake of another; the best that we can achieve is self-interest. Yet it would appear that people do sacrifice for the sake of others (e.g. soldiers in WWII). Therefore, we should say that there is a cause or purpose greater than the individual person.

Certainly, the tradition of the West (not just the Catholic tradition) asserts that there is a common good, and that the purpose of the political community is to advance the common good. Does this not mean, therefore, that the common good is a greater good than that of the individual person? I hold that it does not, and that the answer to each of the objections lies in what we understand by “common.”

If something is “common” it means that it applies first to all and then and therefore of necessity to each, and in essentially the same way. So, for example, to breathe is truly common to people: it applies to all of us insofar as we are human, and therefore and necessarily to each of us, and in the same way. (True, athletes will have trained themselves to breathe more effectively, but they nonetheless are participating in the same activity.) Similarly, everyone would acknowledge certain fundamental necessities for life -water, food, shelter and the like. These things are truly common.

There has also, in the past, been a broad consensus concerning goods that are not merely physical requirements for human life but that are also common. Rather than being necessary for sustaining our physical life, they are things that conduce to happiness, or to the flourishing of the person. So, every person requires an education, a measure of freedom, insofar as we have real agency in our relationships to others, recognition as a subject of relationship, and not merely an object, and so on. The particular manner in which these goods are expressed differs from person to person and from culture to culture, but the goods are common, in that they are first true of all and, necessarily therefore, of each.

What is the measure, then, of these common goods? Clearly, it is the human person. What constitutes something as “good?” Simply, that it is sought as conducive to the life or the happiness of the person. The person is the measure of the common good.

This assertion -which is founded upon reason, and was taught by the pagan philosophers of the ancient world– is confirmed and amplified in the Catholic tradition:

…There is a growing awareness of the sublime dignity of the human person, who stands above all things and whose rights and duties are universal and inviolable. …The social order and its development must constantly yield to the good of the person, since the order of things must be subordinate to the order of persons, and not the other way around…. (Vatican Council II, Gaudium et Spes, 26)

The common good for society is therefore described as “the sum total of social conditions which allow people, either as groups or individuals, to reach their fulfillment more fully and more easily” (Gaudium et Spes, 26.) The person is the measure of the social order, and there is no such thing as a cause that is greater than a person.

With this in mind, let us address each of the objections:

(1) Society is ordered to the common good, which is the good of the person. To say that this good is “common” means that, to the degree that one pursues one’s own good -- his or her own genuine fulfillment as a person -- one will simultaneously seek a society that is ordered to the good of all. What orders society is not some cause that is greater than the person, but the genuine good of the person.

(2) Certainly, one can pursue apparent (rather than genuine) goods to the detriment of others, and to seek what is truly good requires sacrificing such immediate self-interests for the sake of the common good. I think, however, that we must be careful about how we speak about this. Subordination of immediate self-gratification to the common good does not imply a cause greater than oneself, but the seeking of goods that are more proper to one’s own fulfillment. Freedom, for example, is either an attribute of a person (demonstrated, as Chesterton has it, by the mystical ability to get off a bus one stop early) or a social condition in which one is at liberty to pursue genuine personal fulfillment. No one should surrender one’s freedom, for to do so is contrary to one of the goods that we all hold in common. The soldier who dies in the cause of freedom is dying in the cause of the person, and should be honored for that reason.

(3) The good of the many cannot be greater than the good of each one, in that the good of the many is common, and is therefore the good also of each one.

(4) The common good, because common, is indeed the good of each one, and therefore might be correctly termed a matter of self interest: to pursue the common good is, perforce, to pursue one’s own good. However, such a pursuit does not obviate sacrifice for the sake of others, in fact quite the contrary. When a person or a regime (e.g. Hitler or Nazi Germany) acts to enslave whole peoples, the good of all is placed in peril. When my father fought overseas in WWII he was acting to protect the life and liberty of those he loved, and risked his life to do so, precisely because he had is heart set upon the common good.