Measure for Measure (was "Pickering")

[Scarberry, Mark]

Sandy raises one of the key questions involved in the response to evil.
Suppose a Supreme Court Justice believes (1) that it is always wrong to
impose the death penalty, whether because it is against divine law or
because it violates secular principles of human rights, and (2) that the
Constitution can reasonably be given an interpretation that will prohibit
all applications of the death penalty (so that the Justice sees no necessary
conflict between the Justice's moral imperatives and the Justice's oath to
uphold the Constitution). By writing or joining an opinion that upholds the
death penalty in a particularly egregious case, the Justice is able to
persuade a majority of the Justices to limit application of the death
penalty to such cases, thus eliminating 75% of the executions that would
otherwise take place. What should the Justice do?

In effect, by doing what the Justice believes to be evil (upholding the
death penalty in the egregious case), the Justice can dissuade others (the
other Justices) from doing even more evil. This is analogous to Isabella's
dilemma in Measure for Measure (which I have not read or seen in a very long
time). Sandy suggests that Isabella will be responsible for her brother's
death if she does not give in to the scoundrel Angelo. Another approach is
to say that Angelo exercises independent moral choice; Isabella is not
responsible for his choice simply because she refuses to give in to his
blackmail and commit evil herself. The chain of moral causation is broken
when an independent moral agent's act is interposed. I believe that
something like this latter approach has been the Catholic view for more than
700 years. One may not do an act that in its direct effect causes only evil,
with the hope that good may indirectly result--and when an independent moral
actor's decision intervenes as in Measure for Measure, the evil is caused
directly and the good only, if at all, indirectly.

One can imagine horrific situations. For example, you are held hostage by a
terrorist who tells you to kill another hostage (a young child) "or else I
will set off this nuclear weapon and kill millions." Of course if you give
in and kill the child, the terrorist may still push the button. If you
refuse, the terrorist can still choose not to push the button and may in
fact not do so. It is possible that the nuclear weapon may not work or that
the Delta Force is seconds away from mounting a successful rescue that would
save the millions of people **and** save the child.

But that is not to say that resistance to the evil person is easy or that
any moral rule can solve satisfactorily the terrible dilemmas that human
evil can create. I don't know of anyone who could credibly provide a
solution to "Sophie's Choice."

I'd be very interested in Sandy's views on this from his teaching of Measure
for Measure, and of course also in the views of others on the list.

Mark S. Scarberry
Pepperdine University School of Law
mark.scarberry at pepperdine.edu


-----Original Message-----
From: sandy levinson [mailto:slevinson at MAIL.LAW.UTEXAS.EDU]
Sent: Monday, April 01, 2002 9:25 AM
To: RELIGIONLAW at listserv.ucla.edu
Subject: Re: Pickering

[snip]

In Measure for Measure, the key issue is whether Isabella will sacrifice
her virginity in order (or so she is told by the scoundrel Angelo) to save
her brother's life.  She refuses, saying that suffering her brother's death
(or, presumably, even her own) would be preferable to suffering the eternal
damnation that she links with loss of her virginity (at least under such
circumstances).  How do we respond to this?  Most moderns probably find her
a bit of a prig, but that may simply be another indication of the gulf
between most moderns and a certain kind of religious sensibility.  If
Isabella *could* plausibly Catholic theology to require maintenance of
virginity above all (until the entrance into a Christian marriage, though
there is no indication that Isabella had any desires along that line, since
the play begins with her entry into a convent and her expression of desire
for especially strict discipline), then don't we have to honor her choice
and admire her for her "fanaticism" in being willing to sacrifice her
brother?  Or do we really expect people to sacrifice their immortal souls
in order to attain mundane objectives, including (in this case) preserving
the life of a brother?

sandy