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The Corner

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Re: Moral for Me But Not for Thee



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Jonah, I don’t mean to drag you back into this if it’s past time to move on, but I’m certainly not trying to blur the distinction between lawyers and priests.  That distinction, though, is based on a lot more than the obligation to keep confidences under certain formal circumstances.  My quarrel, in this narrow situation involving that particular confidentiality obligation, is that I just don’t see the big difference between ethics and morality.

Yes, the priest is expected to counsel the confessor to come clean.  But let’s assume the confessor refuses.  The priest then has a dilemma:  does he break the seal of the confessional or does he let the innocent man rot in jail?  I don’t think that’s materially different from the lawyer’s dilemma in this situation.

There are different ways a religious creed could have handled this dilemma, including allowing the priest to decide what the right thing to do was under all the circumstances.  That would have reduced injustice, although there would also have been fewer confessions.  In any event, the choice made was to protect the seal of the confessional, absolutely.  The priest who violates it to do what he sees as the greater justice (or the lesser evil) is guilty, not just of an ethical wrong but a moral wrong.

Contrast a lawyer, heeding the attorney-client privilege.  If the worst thing we can say about him is that he did not encourage his client to come clean, that does not seem to me to be such a great offense — or even an offense at all.  If the lawyer had gotten the case after the same client had been arrested for the crime, the lawyer’s task would be to put the government to its burden of proof and do whatever he could within the bounds of the law to get the client off the hook.  It hardly seems right, then, to fault the lawyer for failing to encourage the client to surrender the very evidence it would be the lawyer’s duty to undermine if the client were charged.

This isn’t about mistaking lawyers and priests.  It’s about the perils of making rules that sound wonderful in the abstract but create dilemmas (moral, ethical or legal) and, inevitably, injustices when reality inconveniently intervenes.  I may be hyper-sensitive to this because it’s a lot like the torture/waterboarding debate we were having recently, where the issue was whether a high-minded categorical bar was worth having even if enforcing it, for the protection of a morally guilty person, would deprive us of information that might save countless innocent lives.

We protect priest-penitent, lawyer-client, doctor-patient, and spousal communications.  These privileges promote relationships that are very important to society.  But that doesn’t mean those relationships are the most important thing to society — addressing the plight of an innocent man imprisoned for a crime he didn’t commit might be more important, at least sometimes.  Nevertheless, our protection of these communications is often absolute.  Indeed, the attorney-client privilege is preferable to the priest-penitent because the former at least has some caveats.  The priest, to the contrary, may never reveal the confession, no matter how iniquitous the result.  I’m not sure if I were writing the rules that I’d so sanctify these privileged communications.  But given that these are the society’s rules, I don’t think iniquitous means morally repugnant.



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