JGKPQPNKPG Citation: 52 Am. J. Juris. 273 2007 Content downloaded/printed from HeinOnline (http://heinonline.org) Thu Apr 17 15:49:48 2014 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=0065-8995 LYING: THE INTEGRITY APPROACH CHRISTOPHER TOLLEFSEN I. INTRODUCTION Proponents of the so-called "New Natural Law Theory"--notably, Germain Grisez, John Finnis, Joseph Boyle, and others-hold that the intentional killing by one human person of another is always wrong. This principle is exceptionless, thus departing from consequentialist, Kantian, and even classical Thomistic approaches to the ethics of killing. It is a rigorous view, yet one that follows from the recognition that human life is a basic and irreducible good for all human persons, and the recognition that all human beings are persons. That good thus cannot be weighed against losses to it or other goods as in consequentialist analysis. Nor can the condition of immunity from intentional attack on that good in one's person be lost by wrongful actions as in Kantian or classical Thomistic analysis. Nor, finally, is it the case that those in public office are immune from the restriction on intentional killing, as has been held within much of the Christian tradition. On the ethics of killing, the New Natural Law theorists are radical. They are equally absolutist, but perhaps less radical, when it comes to the ethics of lying. For while there is a strand of thought within the Christian tradition that holds lying to be permissible under some circumstances, 2 the dominant view seems to have been set by Augustine and Aquinas, for whom lying is always and everywhere wrong, regardless of who is doing the lying, or to whom they are lying.3 The New Natural Law theorists thus seem solidly 1. See Germain G. Grisez, "Towards a Consistent Natural-Law Ethics of Killing," American Journalof Jurisprudence 15 (1970) 64-96; Joseph M. Boyle, "Sanctity of Life and Suicide: Tensions and Developments Within Common Morality," in Suicide and Euthanasia, ed. Baruch A. Brody, 221-250 (Dordrecht: Kluwer Academic Publishers, 1989); E. Christian Brugger, Capital Punishment and Roman Catholic Moral Tradition (Notre Dame, IN: University of Notre Dame Press, 2003). 2. See Boniface Ramsey, O.P., "Two Traditions on Lying and Deception in the Ancient Church," The Thomist 48 (1985) 515-531; H. Tristram Engelhardt, The Foundations of ChristianBioethics (Lisse, The Netherlands: Swets and Zeitlanger, 2000), 289. 3. For discussion of both Augustine and Aquinas on lying, see Joseph Boyle, "The Absolute Prohibition of Lying and the Origins of the Casuistry of Mental Reservation: Augustinian Arguments and Thomistic Developments," TheAmerican JournalofJurisprudence 44 (1999) 43-65. THE AMERICAN JOURNAL OF JURISPRUDENCE Vol. 52 within an established tradition in their claim that the prohibition against lying is exceptionless. 4 Such an ethic of lying might be opposed in two ways. One might, on the one hand, deny that the prohibition on lying is absolute, and simply carve out exceptions to the principle. Lying might thus be held to be permissible under certain circumstances. Such an approach could likewise be taken with respect to the ethics of killing: it might, on some views, be permissible intentionally to kill under certain circumstances. This approach, however, seems in tension with the essentials of the natural law tradition; it threatens to eliminate in anything but name the moral absolutes that remain the distinctive core of that tradition's approach to ethical theory. A different approach will appear more tempting to those who accept the prohibition against intentional killing yet recognize that some death-dealing acts are nevertheless permissible, under some circumstances, provided that the death dealing lies outside the agent's intention. In other words, when one agent causes another's death as a side effect, the killing will not be intentional killing, i.e., will not be murder; and thus will not be the object of the exceptionless norm. Provided other moral conditions are met, such as fairness, the death-dealing would then be permissible. Similarly, one might argue, it might be possible to perform some of the behavioral conditions of lying in such a way that the wrong-making feature of lying lay outside one's intention. Provided one was also acting fairly, then one's actions might be permissible, even though behaviorally or consequentially identical to an act of lying. This attempt runs into an immediate difficulty, a difficulty at least of terminology, but possibly deeper. What is ruled out, where killing is concerned, is intentional killing, not killing as such. And intentional killing has a name: murder. So what is ruled out without exception is murder; and not all killing is murder. What the tradition, and the New Natural Lawyers hold, however, is that lying is prohibited without exception. In their formulations, "lying" works like "murder;" it specifies a non-morally described state of affairs-intentionally (-ing-which is always impermissible.' So, ifthere is to be an analogy between the ethics of killing and the ethics of lying (or better, the ethics of murder, and the ethics of lying), then it will be necessary to find a description of lying of the form "intentionally 0-ing" such that it is possible to Dwithout doing so intentionally. 4. For statements and arguments, see Germain G. Grisez, The Way oftheLordJesus,Vol. 2, Living a Christian Life (Quincy, IL: Franciscan Herald Press, 1993), 405-412; John M. Finnis,Aquinas:Moral,Political,andLegal Theory(Oxford: Clarendon Press, 1998), 154-163. 5. See John Finnis, MoralAbsolutes: Tradition, Revision, and Truth (Washington, D.C.: The Catholic University of America Press, 1991), 65; lying is not therefore to be defined as "speaking the truth to one who is owed it." 2007 CHRISTOPHER TOLLEFSEN Now, it might seem that this can easily be done, for we might define a lie as an intentional false assertion. It will then seem possible to engage in false assertion merely knowingly, as we can engage in killing merely knowingly, but not intentionally. Thus suggests Gary Chartier, in a recent criticism of the New Natural Lawyers: "Knowing false assertion need not be intentionalfalse assertion." 6 If so, then the following would seem plausible: "There is arguably a structural analogy between the act of harming by killing in defense of oneself or others and the act of harming (oneself or another) by making a false assertion in defense of oneself."7 And, concluding, "an argument like the one the [New Natural Lawyers] offer to justify killing in self-defense might seem to license some kinds of false assertion. ' The New Natural Lawyers' account of the wrong of lying, like Aquinas' account, points in two directions.9 On the one hand, they hold that all lies violate the integrity and authenticity of the liar; they are thus harmful to the agent himself. On the other hand, most lies deceive unjustly, and all lies are unloving; they are thus harmful to the lie's recipient. Chartier nods in both directions in describing his strategy: as one might kill in defense, not intending the harm to the one killed, so one might lie to another not intending the harm to the liar or the one lied to. The harms that are wrong-making for lies therefore might, in some cases, be beside the intention. Now this looks, terminological difficulties aside, like an endorsement of the second strategy described above: show that while intentionally cF-ing is wrong, not all 0-ing is intentional. It might thus seem to preserve the absoluteness of the prohibition. Yet this path is not, I shall argue, available where lies are concerned, and indeed, Chartier's ultimate standpoint seems not only to endorse exceptions to the principle against lying, but perhaps exceptions to the principle against killing. The appearance of this, if such it be, cannot easily be avoided given the argumentative strategies Chartier employs. II. ASSERTION AND THE VIRTUE OF TRUTHFULNESS The description of an agent's action as a lie is in at least one way unlike a description of an agent's action as killing. One person can kill another in a variety of ways, but there is no particular context that makes killing possible. That Smith kills Jones is, we might say, following Anscombe, a brute fact."0 6. Gary Chartier, "Toward a Consistent Natural-Law Ethics of False Assertion," The American Journalof Jurisprudence43 (2006) 51. 7. Chartier, ibid. 8. Chartier, ibid. 9. For Aquinas's view see Summa theologiae(S.T.) 2-2, qq. 109-113. 10. G.E.M. Anscombe, "On Brute Facts," Analysis 18 (1958) 69-72. THE AMERICAN JOURNAL OF JURISPRUDENCE Vol. 52 By contrast, consider Smith's utterance "I promise to ( for Jones," which can count as a promise only if certain conditions obtain, including the existence of the practice of promising. That Smith promises something to Jones is not a brute, but an institutional fact. 1 Similarly, that Smith lies to Jones is, like promising, no brute fact, for lying is an action that can only be performed given the practice of assertion. In this section, I offer an analysis of the nature of assertion, and the virtue of truthfulness, largely following the New Natural Lawyers. Assertion is not merely a linguistic act; one can assert in various other ways, e.g., by nodding, but asserting is paradigmatically done by using a language. Yet not every act of linguistic use is an act of assertion. Xasserts p by uttering or in some other way making signs that by convention affirm a predicate of a subject, i.e., express and affirm a proposition. Affirming and asserting might be so close in meaning that it is not terribly helpful to define the latter in terms of the former, but the point is clear: in asserting, one puts forth a proposition and endorses that proposition as genuinely reflecting the way things are. Thus, one asserts what one believes to be true, though the act of asserting is different from the attitude of believing, from the proposition believed, and from the state of affairs picked out by the proposition's being the case, i.e., from the proposition's being true. This is by contrast with a number of other attitudes and acts one could take to a proposition: one might wonder, and then ask whether it was true, or desire, and then order another to make it true. Wondering and desiring are not believing; asking and ordering are not asserting. But neither are some acts that might look like assertions, yet do not obtain within an assertoric context, appropriately considered assertions. When the novelist writes that Huck helped Jim, he does not assert anything. Rather, he relies on an imitation (mimesis) of the assertoric context in order to achieve a different set of ends, not primarily the communication of truths, but the creation of a linguistic world for purposes of art and entertainment. We can believe we are in an assertoric context yet not be, as when a reader fails to recognize that what she is reading is fiction; and we can be in an assertoric context yet fail to recognize it, as when a hearer fails to understand that the speaker is not joking when he tells her he loves her. Yet a number of conventions exist to make clear when we are in an assertoric context: when one agent asks another a question, when an agent uses the media by which assertions are typically promulgated, and, most obviously, when an agent uses 11. Cf.John R. Searle, "How to Derive 'Ought' from 'Is'," The PhilosophicalReview 73 (1964) 43-58. 2007 CHRISTOPHER TOLLEFSEN the indicative mood in speaking-all these indicate that the context is one in which assertions are being and to be made. While the assertoric context is not, as I have said, the only context for linguistic utterance, and the purposes for which assertions made not the only purposes for language, that context is surely primordial with respect to the artifact of language, and has a kind of primacy among other purposes. There could be no attempt to entertain with language-by jokes, fiction, playful insults-were not language capable of being used communicatively, and communication is impossible without assertion (just as assertion is impossible without belief and truth). Communication is central to human well-being, both intrinsically and instrumentally. Communication is partially constitutive of any community; there can be no shared purposes without communication, and in the absence of shared purposes, no forms of the good of sociability, and no virtue of justice to normatively structure social life and lives. Moreover, all the substantive basic goods-life and health, knowledge, art and aesthetic experience, work and play-would suffer insofar as cooperative action for their sake would be impossible without communication. Assertions, accordingly, play a central role in the moral life, insofar as they are necessary for communication and communication is necessary for cooperation, sociality, justice, and the pursuit of all the substantive goods. But by that very fact, the assertoric context becomes available for manipulation; agents can make false assertions, utterances that purport to affirm that such and such is the case when, in fact, the agent does not himself believe that such and such is the case. In other words, of course, agents can lie. It is right here that the New Natural Law approach sees the bi-directional wrongness of lying. On the one hand, assertions are oriented outwards, as we have just seen, towards forms of communication that make society possible. As Aquinas says, "Since man is a social animal, one man naturally owes another whatever is necessary for the preservation of human society."' 2 Aquinas's point here seems to go beyond limitation to this or that particular society or type of society, and to encompass the idea of human society as such. The possibility of the human community is constituted by communication, just as is the possibility of political, domestic, and fraternal societies. Such communication is in the first place communication of truths; yet the order established by such communication is an order of persons. When Smith communicates to Jones that opportunity for meat lies over the hill, and Jones agrees to help Smith in the hunt, reality is represented by each to each, but a new reality is constituted, an order of shared truths and plans, an order of 12. Aquinas, S.T. 2-2, q. 109, a. 3, ad 1. THE AMERICAN JOURNAL OF JURISPRUDENCE Vol. 52 persons in community. And this would not be possible were it not the case that in the outward orientation of assertion towards states of affairs there was not also a representation of persons, namely, the persons asserting. The social goods on which communication has a constitutive bearing thus make necessary a kind of inward orientation of those persons who communicate, an orientation concerned with the ordering of the character of those who engage in communicative assertoric acts. As Boyle puts it, discussing Aquinas, The social goods mentioned, perhaps including truthfulness itself, provide the basis for the ordering involved in truthfulness, but Aquinas seems to have held .that what is ordered by the virtue is the human person as a communicating being, namely, the voluntary acts of using language and other behaviors to express one's inner self. So the normative force of truthfulness is the demand of the social goods on the way people present and express themselves, insofar as that is voluntary.I" That outward assertion should express the inner person is natural in the sense that assertion is the natural expression of what one believes to be true, even though one's primary purpose in asserting is not typically self-disclosure but the disclosure of truth. But because of the bearing of communication and assertion on the social goods, it seems that this "natural" relationship is not enough; rather, the character of the asserting agent must be properly ordered as regards his acts of assertion by a virtue, which Aquinas calls truthfulness. It is this virtue that is instantiated in an agent's character by a particular type of intrapersonal unity, integrity, or authenticity, a "harmony of the inner with outer aspects of the person."14 It is crucial to the New Natural Lawyers' account that this harmony be seen as an instance of the more general good of personal integrity or authenticity which is, on their account, a basic good. As such, integrity must be a fundamental aspect of human flourishing, neither reducible, nor merely instrumental to some other basic good. But to see this requires understanding integrity along a multiplicity of axes. Human persons are complex, and can come apart in a variety of ways. Chartier's attempt to argue as if the form of 13. Boyle, "The Absolute Prohibition of Lying," 58; Finnis's summary of Aquinas's position likewise points in both directions-towards the agent's integrity, and towards the interpersonal communicative context in which integrity is ruptured: "It is a moral direction of reason, an implication of the good of reason itself {bonum rationis} as that good involves (we may say) the person's integrity or authenticity-harmony of inner with outer aspects of the person-precisely as that integrity or authenticity bears on and indeed makes possible interpersonal communication." Finnis, Aquinas, 161. 14. Finnis, Aquinas, 161. 2007 CHRISTOPHER TOLLEFSEN integrity in jeopardy was merely "emotional integrity" fails to do this. 5 It is true that our emotions can be in disarray, tension, or conflict with one another, and true as well that we are better off when unity is introduced and our emotions ordered. But this unity must itself be in accordance with reason, and must be appropriate to the choices we make and actions we carry out. Moreover, and this will be important, personal integrity, while strictly limited to the person himself or herself, nevertheless naturally expands outward to affect and be affected by the unity of persons in community. Persons in community are subject to authority, make decisions together, act together, and respond emotionally together, and it is better for individual persons if they exist in communities in which their own emotions, choices, and actions are in harmony with those of the agents with which they live; this cannot be the case if the agent's own life is in disarray. On the other hand, disharmony between persons can create pressures towards disharmony within a person, as the desires, orders, and actions of others create positive and negative incentives to act contrary to one's character. The relationship between integrity broadly understood and the good of interpersonal harmony is close, so much so that it seems wrong to characterize the former, as Chartier does, as merely instrumental to the latter. Yet the bi-directionality of the account seems the same as that considered in the more specific discussion of the virtue of truthfulness and its relationship to the good of community. In light of these considerations, it seems clear that an agent whose inner life is at odds with her external actions is worse offboth intra- and interpersonally. This claim cannot, of course, be supported by deductive argument. The goodness of a character unified along all its aspects over which one has voluntary control, and integrated into a morally upright community is selfevident, even though not always recognized as so known. Yet recognition of these practical truths shows itself in feelings of guilt and inner tension, the desire to be with those who agree with or support us, and our lip service, even in otherwise suspect ways, to honesty, authenticity, and integrity. 15. To be fair, in The Way of the Lord Jesus, Vol. 1, ChristianMoral Principles(Quincy, IL: Franciscan Herald, 1983), Grisez divides the realm of personal integrity into "(1) selfintegration, which is harmony among all the parts of a person which can be engaged in freely chosen action; (2) practical reasonableness or authenticity, which is harmony among moral reflection, free choices, and their execution," Grisez, ChristianMoral Principles,124. But the language of the New Natural Lawyers in discussing lying does not usually track this difference-they speak of lying as a violation of integrity, authenticity, and so on. Their account makes clear that they mean something encompassed by Grisez's "authenticity" in the passage just quoted; but I suspect they have ceased to think of (1) and (2) as two separateand distinct basic goods. THE AMERICAN JOURNAL OF JURISPRUDENCE Vol. 52 I. THE WRONGS OF LYING It is against this background that we can appreciate the New Natural Law account of the wrongs of lying. Both the intra- and interpersonal forms of harmony are deliberately chosen against in a lie. In the lie, I assert p, while believing not-p. Because the context of assertion is interpersonal, my asserting contrary to belief is typically without purpose save as deceiving my hearer(s). So Aquinas describes deception as a "perfection" of the lie, 16 and the deceiving nature of the lie will be crucial to one axis of its wrongness. But it is essential to start, in understanding the malum of lying, with the character of the liar. The central claim of the New Natural Lawyers is that in lying, the liar effects a division between internal and external, between that part of the self that is naturally opaque to others in the absence of some effort to communicate it, and the communicating self. Believing p, I nevertheless assert, affirm, or endorse not-p. The communicating, external aspect of self by which I present to the world the internal aspects of self is thus at odds with that internal aspect. Lies are false assertions; there is no lie if the form of speech act I am engaged in is not assertoric, at least implicitly. As mentioned, the literary artist does not assert; neither does the person telling ajoke of the form "A man walked into a bar..." Even deliberate attempts to deceive might not involve assertions and thus not be lies: on Aquinas's view, for example, the feints of a military ambush are not assertions; 7 and a poker player might precisely intend to deceive in his bluff while making no genuine assertions either; the context of at least some games relies in some cases on deceptive acts, and even occasionally, like works of fiction, on imitations of assertions as part of the play. But these acts or speech acts are not in fact assertions; they do not affirm and are not typically intended to affirm that a proposition is believed by the agent, even though they are, as all acts and speech acts are, expressive in one way or another. The distinction between asserting and deceiving is important, for it is false assertion that divides the self. Whether this division must be intentional will be addressed in the next section. But it is important to note here a misunderstanding of Chartier, who writes that none of the New Natural Law arguments rule "out a knowingly false assertion not made with the purpose to deceive.""8 Thus, writes Chartier, one might respond to a question "with an 16. Aquinas, S.T. 2-2, q. 110, a. 1. 17. Aquinas, S.T. 2-2 q. 40, a 3. 18. Chartier, "Towards a Consistent Natural Law Ethics of False Assertion," 49. 2007 CHRISTOPHER TOLLEFSEN assertion one knows to be false. Here, one's goal is to avoid offering a complex answer.... [I]t does not seem that one has violated the norm precluding intentionalharm to any basic good. For the harm, if any, done to the good of self-integration here seems to be a by-product of one's decision to avoid complexity."' 9 Chartier then goes on to assimilate this case to the cases of armies, or game-players. The assimilation is misguided, however, for it is not deception as such, but false assertion that divides the self. In asserting p, one as it were puts oneself behind it, affirms that p is how one takes the world to be. But when one lies, one engages in the external representations of the world and oneself while not, internally, taking the world to be as one says it is. That one deceives in consequence is typical, and there would usually be no point to lying apart from deceiving; but it is the false asserting that divides the self, not the deception. So whether one's end is deception or the avoiding of complexity, that one asserts falsely renders one's act wrong. On the other hand, the deceiving of another is often a form of injustice, and, when not in a non-assertoric context, such as a game or a work of fiction or ajoke, is held by the New Natural Lawyers always to involve a failure of love, insofar as such deception, and the presentation of a false self, corrupts the social goods that are the foundation for the virtue of truthfulness. As such, lying always impedes community, sundering the order of persons that honest communicating builds up; but acts that violate or act against community are by that very fact unloving. So a part of the wrong of lying-the interpersonal part-is that it is unloving, even when it is not a strict violation of justice. The point-or at least part of the point-of the contrast between love and justice in this context is that sometimes, at least, an interlocutor is owed the truth. When a scholar publishes in a journal what he knows to be false, or puts forth as his own what he knows to be someone else's work, he violates the order of justice: in the context of academic publication, readers are owed truthful communication. But of course, the famous Nazi at the door is not owed the facts; there is no obligation in justice to make him aware of where the Jews are hiding. Nevertheless, the Nazi is still part of the human community with me, and although I ought not to tell him the truth, this does not mean I should lie; appeal to his moral conscience, in the ways suggested by Grisez ("I will not answer your question and help you do wrong; instead, for your soul's sake, I ask you to repent of your wicked intent,"2 ) acknowledges this community while also acknowledging the radical violation of the human community the 19. Chartier, ibid. 20. Grisez, Living a ChristianLife, 407. THE AMERICAN JOURNAL OF JURISPRUDENCE Vol. 52 Nazi is engaged in. A lie, however, seems both to deny the broader human community, by refusing to appeal to it, and in a sense to endorse the false community of the Nazi ideology by engaging in the type of communicative exchange characteristic of ordinary interpersonal communication and reciprocity. Grisez puts both points this way: "attempting to deal with the agents of a totalitarian power by lying maintains a semblance of community based on false ideology and blocks the development of real community based on the common good. Indeed, the lies of the oppressed are an important element in their reluctant submission to an unjust regime."2 The account of the wrongness of lying is, admittedly, at its most difficult and darkest when framed as a form of unlovingness towards wicked men; and in a later section I will address some of Chartier's challenges to this account. But it must be remembered that the core wrong of lying, for the New Natural Lawyers, is the wrong against authenticity and integrity. For this reason, I turn first, in the next section, to Chartier's criticisms of this account. IV. KNOWING BUT NOT INTENTIONAL FALSE ASSERTION? Chartier's objections to the integrity side of the moral ledger fall into two general categories. On the one hand, there are objections that focus on the account of integrity and authenticity as a basic good jeopardized by lies. Specifically, Chartier suggests that if integrity is understood as merely emotional integration then there need be no lack of integrity in a lying agent; and if the relevant form of integrity is understood more broadly, as a harmony of internal and external, then the value of this integrity "is not best understood intrinsically, but rather instrumentally."22 The New Natural Law claim that integrity so construed is a basic good seems to Chartier "tailor-made to provide a reason to reject false assertion" and only a problem in that context. The second sort of objections concern the claim that an agent who lies must inevitably be acting contrary to the good of authenticity, and hence deliberately harming that authenticity. This objection seems to be expressed in at least two ways: first, that it is possible to knowingly but not intentionally assert falsely; and second that the damage to authenticity inflicted by false assertion need not be seen as intentional. 21. Grisez, Living a ChristianLife, 407. I think Chartier misstates Grisez's objection in writing that his argument "seems to be that, because the deceiver resisting a totalitarian government does not overtly resist the depredations of this government, he allows them to continue unchecked." Chartier, "Towards a Consistent Natural Law Ethic of False Assertion," 62. 22. Chartier, "Towards a Consistent Natural Law Ethic of False Assertion," 56. 2007 CHRISTOPHER TOLLEFSEN I have already addressed the first general type of objection, pointing out that integrity is not understood by the New Natural Lawyers as merely emotional integration, and suggesting some reasons for thinking that the selfintegration of an agent's inner and outer aspects is a basic good. To these points I add only one more brief consideration in response to the claim that "if self-integration is a matter of rendering inner and outer consistent, it is hard to see when this would pose a problem except in connection with false assertion."23 I think it is somewhat easier to see this than Chartier suggests. Consider the agent in the totalitarian country, where the frank expression of his true beliefs would have terrible consequences, and where he is expected to engage in nonassertoric external acts of respect for the authorities-lining up at parades and clapping, doffing his cap in front of pictures of the leader, and so on. Such an agent does not lie if he remains silent about his beliefs, not even, I think, if he engages in the non-assertoric acts of respect. But it is not difficult to believe that this agent will experience considerable psychic tension and discontent at having an external fagade that, while not false to, is nevertheless not expressive of, his internal persona. Human persons typically want their external behavior, physical appearance, and image to reflect who they take themselves to be, and obstacles to that unification project are understood as morally undesirable.2" But there is a difference between not being able to be as expressive as one would wish, and expressing contrary to who and what one is; this latter constitutes a direct attack by oneself on the form of unity one deems desirable. Or so it would seem. Chartier denies this, as mentioned, in two ways. We are, I think, in a position to make short work of the first of these ways. Consider again Chartier's analogy to killing: Not all killing is intentional: not every instance of killing counts as an instance of murder. There is arguably a structural analogy between the act of harming by killing in defense of oneself or others and the act of harming (oneself or another) or others by making a false assertion in defense of oneself. Knowing false assertion need not be intentionalfalse assertion, so that many performances that might be described as lies could be morally acceptable within the terms of the [New Natural Law] theory." 23. Chartier, ibid., 57. 24. Hence there will be pressure on this agent to reform his internal character so as to cohere with the external appearance. 25. Chartier, "Towards a Consistent Natural Law Ethic of False Assertion," 51. THE AMERICAN JOURNAL OF JURISPRUDENCE Vol. 52 Because Chartier's subsequent objections are framed in terms of the New Natural Lawyer's account of human action and intention, it will be necessary shortly to say something about that account. But it is not necessary here: as the analysis of assertion should have made clear, assertion is not the sort of thing that can be done except intentionally: in an assertion, I set myself to do something, namely, to express a stand on a proposition. "Assertion," like "murder," "promise" or "marry" has already built into it that one is acting intentionally.2 6 It is not like "bruise,". "wound," "bump" or "hit," all of which one could do intentionally, accidentally, or as a side effect of something else. Here again we see the importance of the distinction between false assertion and deceiving. The latter is rather like "bruising" or "bumping." I might assert truly to you, and accidentally deceive someone nearby who had not heard the entire conversation; and I might speak truly to you knowing that Smith, who is nearby, will be deceived. I might deceive through a host of non-assertoric acts, again, deliberately, accidentally, or as a side effect. Yet the attempt to define the behavioral core of lying-the core which could be performed non-intentionally-as "deceiving" would be a failure. A lie is not "intentional deception," as we have seen, nor is intentional deception always wrong (though perhaps it is when accomplished by false assertion). A lie is a false assertion, and this cannot be accomplished knowingly but not intentionally; hence "intentional false assertion" adds nothing, in fact, to "false assertion." V. NON-INTENTIONAL DAMAGE TO SELF? A stronger argument of Chartier's focuses on the damage alleged by the New Natural Lawyers to the agent's integrity: [I]t is unclear why, if false assertion does harm the self, the harm it effects must be seen as intentional. Rather, it seems as if this harm, like the harm to an attacker who is deceptively repelled,27 should be seen as a foreseen but intended side effect of a given verbal performance. One does not harm oneself in order to repel the attack. Rather, in the course of repelling the attack, one does something which in fact causes some putative harm to oneself. Even if the harm is unavoidably part of false assertion, it need not be chosen as either a means or an end." 26. Davidson writes: "...some verbs describe actions that cannot be anything but intentional; asserting, cheating, taking a square root, and lying are examples." Donald Davidson, "Agency," in Essays on Actions and Events (Oxford: Clarendon Press, 1980), 45. 27. I will discuss this in the next section. 28. Chartier, "Towards a Consistent Natural Law Ethic of False Assertion," 58. 2007 CHRISTOPHER TOLLEFSEN Addressing this argument requires an initial word on the nature of action and intention. Moral absolutes, according to the New Natural Lawyers, concern the sphere of what is intended, rather than accepted as a side effect. And what is intended includes within its scope what is sought after as an end-a state of affairs, and a benefit to be obtained in that state of affairs- 29 and all those nested instrumentalities chosen in order to bring about that end. So what is prohibited by moral absolutes is the choosing or intending of certain states of affairs-as an end or means-and not, simply, the bringing about of a particular state of affairs. Thus: because it is damaging to the basic good of life that a person be killed, it is wrong, everywhere and for everyone, as we have seen, for an agent to intend another's death, whether as a means, or an end. Hatred of a person might motivate intending death as an end; the killer hopes, in that state of affairs, to obtain the benefit of resolving internal tensions brought about by that hatred. Intending death as a means is intelligible as long as the murderer expects that some further beneficial state of affairs will be brought about by the death of the one killed--obtaining the inheritance, alleviating the other's suffering, restoring justice. By contrast, when an agent provides morphine to a sick and suffering patient in order to obtain relief from pain, she need not necessarily be intending death, even if she foresees that death will be hastened by the administration of the drug. For the state of affairs that she intends as an end, the relief of pain, is not the death of the patient, nor is the death of the patient the instrumentality by which she hopes to obtain the desired beneficial state of affairs. The patient's death is a side effect, and thus not ruled out by the moral absolute against killing. The New Natural Lawyers are well-known for a fairly rigorously agentcentered approach to the understanding of human action. The death of another might be "close" to the desired end-administering morphine will bring about both the relief from pain and the end of life. Yet if state of affairs sought by means of the chosen action-the administration of morphine-is not death but something else (relief from pain), then death is not part of the intention. Similarly, the death might be "close" to the chosen means, and temporally prior to the desired end, yet if the benefit is not sought by means ofdeath, then death will be a side effect of the action. Thus, to take the example of selfdefense, to which we will return, when I use force to repel the attacker in order to preserve my life, the weapon I have available might be such that the death of the attacker is more or less physically simultaneous with the force 29. See Finnis, Aquinas, 62-7 1; John M. Finnis, Germain G. Grisez, and Joseph Boyle, "'Direct' and 'Indirect': A Reply to Critics of Our Action Theory," Thomist 65 (2001) 1-44. THE AMERICAN JOURNAL OF JURISPRUDENCE Vol. 52 used, as when I shoot the attacker. But the nested chain of means: shooting, in order that the physical force of the bullet repel the attacker, in order that his attack be thwarted, in order to preserve my life-nowhere includes within it the death of the attacker as a state of affairs from which I seek some beneficial state of affairs. The case thus differs from one in which I seek a benefit that will be brought about by the death itself: I administer morphine in order to bring about death because I believe the patient will be "better off dead," for example. The New Natural Lawyers' willingness to see intention as a first person, or agent centered reality, not determined by natural relationships of causal closeness, has struck some as implausible. 30 But it is important to hold to it throughout the discussion of the objection under consideration, for Chartier's objection at least here seems to rely upon it: perhaps damage to the agent's integrity is inevitably a part of a lie; why must this damage be understood as part of the action-what is intended as a means or an end-and not a side effect, as damage in other contexts, such as self defense, need not be so understood? The objection seems reminiscent of a position held by Richard McCormick, S.J. and Bruno Schuller, S.J. that "with respect to nonmoral goods (such as human life) one need no more "approve" the evil (destruction of life) when one chooses to kill as a means to some ulterior end than when one accepts death freely as a side effect."'" What is at stake here is the eighth so-called "mode of responsibility": "One should not be moved by a stronger desire for one instance of an intelligible good to act for it by choosing to destroy, damage, or impede some other instance of an intelligible good."32 This mode will clearly be of little useful application if it is not possible to differentiate cases in which the damage to a good is "approved" or "intended" from cases in which the damage is merely accepted as a side effect. The quickest way to make the distinction is to point out that in the case of accepted side effects, it is the death, or the killing, that is accepted and not chosen, whereas in cases violating the eighth mode, the killing is chosen. This was the pattern adhered to in my discussion above: the administrator of morphine does not have death as part of his proposal. But the objection, put 30. See, e.g., Jean Porter, "'Direct' and 'Indirect' in Grisez's Moral Theory, " Theological Studies 57 (1996). I have argued that the view is quite plausible in "Direct and Indirect Action Revisited," American Catholic PhilosophicalQuarterly 74 (2000) 653-670 and "Is A Purely First Person Account of Human Action Defensible?" Ethical Theory and Moral Practice 9 (2006) 441-460. 31. Grisez attributes this view to McCormick and Schuller in ChristianMoral Principles, 248. 32. Grisez, ChristianMoral Principles,216. 2007 CHRISTOPHER TOLLEFSEN by McCormick or Chartier, seems to move the analysis one step back: maybe death, or, in the case of lies, disunity of the self, are intended, but the harm of death, or disunity, is not. This, then, is what the necessary response must address. What, then, is it to intentionally will harm or damage to some good? Harm and damage must be understood as privations of a good. So blindness is a harm because it is a privation of the good of health; death is a harm because it is a privation of the good of life; ignorance is a harm because it is a privation of the good of knowledge; and so on. This analysis can be extended to the reflexive goods, those whose instantiation requires choice: choices which disrupt the unity of wills of friends are harmful because they are privations of the unity of wills that are constitutive of friendship; irreligious choices are harmful because they are privations of the unity of wills that should exist between persons and the divine source of meaning, and so on. Now, in the cases of the substantive goods, it seems that what is necessary for a choice to be excluded by the eighth mode of responsibility is that the agent should choose to bring about some benefit-a further state of affairs, for example, in which a basic good would be instantiated-by means of the privation of some basic good, the same or other than the one ultimately sought. Consider again the case of killing: when I repel my attacker with force, foreseeing his death, it is not by means of the privation of life that I will to obtain the benefit, but by the physical repulsion of the attacker's person. But in the case in which I stand to gain by inheritance, it is precisely by the privation of life that I stand to gain. So in this case, unlike the self-defense case where I choose neither death nor harm, here I choose both death and harm, for it is by means of the harm--the privation-that I expect to achieve my end.33 Does a similar analysis take us to the conclusion that the choice to lie is a choice to harm one's integrity? It seems so, provided the earlier defense of the good of integrity is accepted. Consider the contexts in which lies are told: to prevent an evil, or to achieve some good. How is it that the liar proposes to himself to prevent the evil, or achieve the good? Precisely by means of a privation of integrity, i.e., by means of effecting the division between internal and external self as regards a possible harmony that could be brought about by choice. This might be seen by considering a case in which an agent is thwarted in the achievement of their end by some condition that manifests, 33. Hence the difference, it seems, between choosing to kill in the administration ofjustice and choosing instead to restrict autonomy. In both cases, a privation is chosen as a means to the administration of justice; but the deprivation of autonomy is not the privation of a basic good, and so is not ruled out by the eighth mode of responsibility. THE AMERICAN JOURNAL OF JURISPRUDENCE Vol. 52 willy-nilly, their true inner state: the agent always and only stutters when lying, for example. Such an agent does not, in fact, possess integrity of the sort in question, but their ability to effect the division is compromised in a way similar to the ability of a killer to actually bring about the death of a planned victim is. The example makes clear that it is the division which is sought as a means; but the division is a privation of a good; and is thus a harm. So it is a harm to the self that is sought after, chosen, intended, as part of the lying agent's proposal. VI. DECEPTIVELY REPELLING In this, and the next and final section of this paper, I turn to Chartier's arguments intended to establish an analogy between killing in self-defense and deceiving in self-defense. In this section, I argue that the basic analogy is implausible; in the next, I suggest that the supporting claims made by Chartier with regard to the analysis of human action threaten to render his view something other than a "natural law ethics" of false assertion. For killing in self-defense to be morally permissible, the death of the attacker must lie outside the defender's intention-it must be neither a means or an end, or, in the New Natural Lawyers' preferred formulation, no part of the agent's proposal. Assuming, for the sake of the argument, that deception is harmful to the deceived, in the ways already discussed in this paper, Chartier writes: Thus, for her act of knowingly false assertion to be morally appropriate, the agent must not intend the harm. The actor cannot seek the manipulation of the other, the other's misinformation, or a breakdown in human connection as an end in itself The actor may not act in order to bring about the harmful outcome. Deception should not be in any sense her objective. Thus, it may not be a chosen means to her end either: the harm must be accepted as a foreseen but unintended by-product or side effect of the decision to deceive verbally.34 I find this argument unpersuasive and somewhat incoherent: deception may not be an objective according to the argument and may not be "a chosen means"; yet the "decision," as described in the final sentence, is to "deceive verbally." This seems contradictory. But the general point seems to be this: just as using force to repel an attacker is damagingonly incidentally, so the lie used to repel the attacker is deceptive only incidentally: "The deception of the attacker may not be a means of self-defense; rather, the means of self- 34. Chartier, "Towards a Consistent Natural Law Ethics of False Assertion," 52. 2007 CHRISTOPHER TOLLEFSEN defense must be such that it happens to involve the deception of the 35 attacker. I believe that Chartier, in defending these claims, makes use of a distinction that should be stricken from the books. He denies that in the use of force an agent shoots in orderto resist and says rather that shooting is how one resists the force, and extends this to the case of deception "I do not verbally deceive them to resist their unjust entry; rather, in the same way, verbally deceiving them is the way in which I resist their unjust entry. "36 But shooting is how I resist an attacker if I have chosen to shoot; and there is no difference, as far as I can tell, between saying that I shoot in order to resist, or saying that shooting is the way I resist: both expressions indicate a chosen means to some end. On the other hand, if I do not kill in order to resist, then killing is not the way in which I am resisting; and if killing is the way I am resisting, then I seem to have killed in order to resist. The distinction falls apart. Moreover, it is clear how one can shoot, yet not intend to kill (although I will return to this in the next section) but not clear how one can "verbally deceive" without intending to deceive. One utters words to the attacker, and the attacker, understanding them in a certain way, makes off in the wrong direction. What repelled the attacker when one spoke? Only what was communicated to him; to suggest that one's deception was "merely verbal" is like suggesting that it was the power of the words as sound that repelled the attack.37 So, whether or not it is the case that deceiving is always wrong, the deceiving involved in false asserting seems always intentional and thus not like the killing performed in self-defense. VII. A NATURAL LAW AccouNT? The attempt to finesse a difference, as described in the previous section, between 0-ing in order to A, and I-ing being "merely" the way in which one accomplished A, strikes me as problematic. It is not like the difference between intending and foreseeing, nor like the difference between intending and causing, and if used, would quickly efface the very distinctions on which 35. Chartier, ibid. 36. Chartier, ibid., 53. 37. Imagine an attacker so weak that the breath of spoken words repelled him from his attack; here, any deception that resulted from deliberate use of the voice might be outside the intention. Or imagine a defender blessed with a voice so beautiful it distracted hostile agents from their intention; here again, any deception might be beside the agent's intention. But when the Nazi is convinced that there are no Jews about and goes elsewhere, the deception is neither "merely verbal," nor is it "outside the intention": it is the means by which I get him to go. THE AMERICAN JOURNAL OF JURISPRUDENCE Vol. 52 a natural law account depends to maintain its traditional moral absolutes. But that effacing seems precisely what happens late in Chartier's essay when he returns to the analogy between killing and deceiving in self-defense. The problem is this: in describing killing as "the way in which" my self defense is carried out, Chartier makes it increasingly difficult-for himselfto see that killing as merely a side effect of my action. Chartier compares the killing involved in self-defense to the inflicting of pain in the removal of a tooth: If a dentist extracts a tooth, the act of extraction may both cause pain and remove a source of ill health. In theory, however, the act of extraction could be completely pain-free. Pain is at most a contingent by-product of the process of extraction. By contrast, the disabling or death ofthe assailant is not a contingent by-product of the process of repelling the attack.38 Now in one sense this might be true; it might be that the use of a certain weapon is certain to bring about death as one defends oneself. But Chartier makes a stronger claim: We can speak of a unitary act-removing-a-tooth-to-eliminate-a-source-of-ill- health--ofwhich pain in the gums is a (foreseen but intended) side effect. But it strains not only the imagination but also the logical powers to speak of a unitary act-firing-a-gun-at-an-assailant-to-repel-an-unjust-attack-ofwhich harm to the assailant is simply a side effect." And then he draws a stronger conclusion: If I can harm the attacker, not as a means to a logically subsequent end, but as one way of carrying out a program of action which is otherwise just, then it appears I can harm the attacker by false assertion in the same way.' ° So one can harm the attacker, not as a means, apparently, but not as a side effect either, as stated in the penultimate of the three just quoted passages. 38. Chartier, "Towards a Consistent Natural Law Ethics of False Assertion," 59. 39. Chartier, ibid., 60. I think there is no straining of the imagination in the acknowledging that even very forceful repelling can be done without intending damage. Imagine the game of repel-ball, in which the object is to knock the ball back before it gets past you with a hard stick. Every forceful repelling is accompanied by damage to the ball, damage that might be quite undesirable insofar as it leads to the ball's destruction. But the neighbors play destroy-ball, played with exactly the same ball and stick, with the purpose of hitting being to destroy the ball. Harm to the ball is integral to the causality of both games, but only to the intentionality of the second; in the first, it is indeed simply a side effect. 40. Chartier, "Towards a Consistent Natural Law Ethics of False Assertion," 60. 2007 CHRISTOPHER TOLLEFSEN "Not as a means" seems here to have been reduced to the status of a mere token, for there is now an adverbial way of performing actions, which is not a side effect, and hence not outside the agent's intention, on which the achievement of my end is dependent, which involves harm to another, and which is yet morally permissible. This seems, not like a mode of analysis consistent with the natural law tradition, according to which intentional harm to basic goods is intrinsically and absolutely impermissible, but like a sidestep of that tradition, in the ethics of killing, lying, and perhaps elsewhere, where moral absolutes are concerned. VIII. CONCLUSION The Augustinian tradition, embraced by the New Natural Lawyers, regarding lying is, without doubt, rigorous. Nor was it formulated by thinkers unwilling to acknowledge the difficulties involved in holding fast to the teaching. As Finnis writes of Augustine, he "portrays with great frankness all the inner feelings and popular suasions which move him, like anyone else, to want to lie."' Yet it seems that Finnis is correct in linking Augustine's rigor on lying to his Christian conviction in the existence of moral absolutes elsewhere, such as against the denial of faith. For as we have seen, the attempt to render the natural law ethic of false assertion "more consistent" by being more permissive, seems inevitably destined to erode our already painfully tenuous grasp of the principles that some things ought never be done; that it is better to do wrong than to suffer it; and that evil may not be done for the sake of good. Such an erosion would itself be tantamount to an abandoning, rather than an improving, of natural law ethics. 41. Finnis, Moral Absolutes, 64.