Jimmy Akin

A reader writes:

I know from the catechism that gambling is not immortal per se as long as it is fair, the money can afford to be lost, etc.

However, is a low-stakes home poker game sinful if there are state laws prohibiting such?

I have to confess that I know very little about gambling or what laws may apply to it, so I don’t know if there even are state laws prohibiting people from playing poker in their homes, but let’s suppose that there are.

Would it be immoral to violate these laws?

A good starting point in answering this question is to refresh ourselves on what the definition of a law is. According to St. Thomas Aquinas, a law

is nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated [ST I-II:90:4].

There are five elements that have to be present for something to count as a law on this view: (1) It has to be an ordinance, (2) it has to be in accord with reason, (3) it has to be oriented toward the common good, (4) it has to be made by someone with the right authority, and (5) it has to be promulgated so that the public knows what it is to do or not do.

Anything not meeting these criteria is not a law in the proper sense and is not binding, legally or morally from a Thomistic perspective. (That does not mean that you won’t go to jail for violating it, though. Dictatorships frequently have all kinds of unjust laws that serve as pretexts for locking inconvenient people up.)

Of the five conditions named above, it is clear that state laws against playing low-stakes poker in your home would meet seveal of them: In particular, they would seem to meet conditions (1), (4), and (5) right out of the gate, so the real question is whether they also meet conditions (2) and (3).

With regard to these conditions, it would seem that the common good does suggest at least some kind of regulation of gambling, like any entertainment. I wouldn’t want my next door neighbor running a casino out of his garage any more than I would want him running a disco or a bar or a boxing venue or a movie theater out of it. Zoning laws are directed toward the common good (even if one can quibble with any particular zoning law).

Given the history of the gambling industry, it would seem to be particularly subject to the need for regulation to keep it clean and fair.

(I know I wouldn’t want to play dabo in Quark’s bar; his wheel is rigged!)

So laws regulating gambling seem to be reasonable and (hopefully) directed toward the common good in general, but what about in this particular case?

Here let me introduce the concept of a legamoron.

A legamoron is a "legal oxymoron"–a law providing that something is illegal even though the government has no intention of enforcing the law rigorously.

The classic example of a legamoron is the speed limit. Almost everybody, at least sometimes, violates the speed limit by at least a little bit. And almost everybody does it deliberately at some point.

The government knows that (its own members do it just as much as everyone else) and that is one reason why there is "tolerance" shown for minor violations of the law (e.g., going two miles over the limit). If you commit a flagrant violation, though, expect to get nailed and to have every mile you were going over the limit charged against you.

Legamorons can be bad. There are some legamorons that should be rigorously enforced, even though they’re not. Many people today would put immigration laws in that category.

Legamorons can also be selectively enforced in ways that are unjust, such as enforcing traffic laws more rigorously in the case of some groups than others, leading to the "Driving while black" phenomenon.

But in principle legamorons can establish a kind of framework that helps keep society orderly by establishing a model for what should happen and providing a basis for prosecuting flagrant violations.

As I’ve said, I’m woefully ignorant of the laws regarding gambling (though I’m sure I’ll get enlightened in the combox), but assuming there are state laws that prohibit playing small-stakes poker in your home, I would be inclined to regard them as legamorons–statutes meant to provide a kind of societal "rule of thumb" that can be used as a hard rule when flagrant violations are committed, even though there is no intention or desire on the part of legislators to have them followed rigidly.

If someone is running a poker game in his house where tens of thousands of dollars are changing hands (y’know, the kind of money people might actually pull guns on each other over or that organized crime might take an interest in) then the state wants the ability to prosecute. But if someone is running a poker game where the pot never exceeds $50 then I don’t think the legislature cares about that any more than it cares about people going one mile over the speed limit (in most cases).

It thus strikes me that there is a case to be made that such laws are not intended–despite the imprecise way they may be written–to be applied to genuine small stakes poker games.

If they are then it seems to me that the question comes on the table of whether they meet the second condition for a law–that they have to be in accord with reason.

Given that gambling in general is not intrinsically immoral (a point that may not be recognized in some areas), and if we take it as given that poker can be played morally (if not then pick a form of gambling that you think can be played morally), it would seem that there would be a threshold below which the stakes of the game are so small that it is not rational to try to regulate it.

I mean, suppose people aren’t playing for money at all but just for "points," which can’t be redeemed for anything other than the satisfaction of having won so many points in an evening–a genuine zero-money game.

It would seem to me that it is not reasonable for the state to try to stop people from playing zero-stakes poker.

So let’s increase the size of the pot from nothing to something measured in pennies. It still strikes me that it would be irrational for the state to seriously prohibit such games.

Likewise if the pot is measured in individual dollars.

Or tens of dollars.

At some point, though, the pot becomes large enough that the state has a rational interest in regulating the game. Where that point is, I can’t say–and the legislature may have a hard time with it as well, which is the reason for many legamorons. (What the legislature is really concerned with in setting speed limits is keeping people from driving unsafely, but since it’s hard to define that precisely, they set a limit that ostensibly bars all driving over a certain speed in an area.)

I would guess that by the time thousands of dollars are being exchanged, the state has the ability to rationally intervene, though that is a personal opinion.

As long as one stays below the threshold of rational intervention–whatever that fuzzy threshold is–then by definition it is not rational for the state to prohibit a particular type of game and, according to Aquinas, the law would not bind morally (at least in this application of it).

Which is not to say that you won’t get fined or go to jail over violating it.

If you’re driving one mile over the limit, you may get a ticket, and if you’re running a low-stakes poker game in an area where it’s illegal, you may have the law come down on you.

That’s the risk you take.

A reader writes:

I came across an article by Michael Rosen in which he, inter alia, attempts to justify Embryonic Stem Cell research on the basis of the principle of Double Effect.  He writes that,

In my understanding, ESC research satisfies the four prongs of this principle: (1) creating stem-cell lines for research is not wrong in itself; (2) the intention of the scientist extracting the lines is right, namely saving lives through research; (3) the bad effect (i.e. killing the embryo) is not a means to the good effect (i.e. saving lives) because although the embryo dies after the stem-cells are extracted, its death is not a "means" to that extraction but rather a result thereof; and (4) the gravity of the reason for creating the ESC lines is commensurate with the foreseen (but unintended) bad effect, namely the death of the embryo.

I would be very interested in hearing what you think about this argument.  My own take is that it is his fourth point that fails the test, as medical research is not equal in gravity to the destruction of human life.

FIRST, GET THE STORY.

The author of the piece writes from a Jewish perspective but draws upon Catholic moral thought in the process of doing so. I commend him for doing that. People of other religions can have valid moral insights, and we should use the best available ones in trying to crack moral problems. I wouldn’t hesitate to draw upon Jewish theologians in trying to crack a moral problem if they had the best insights on the subject at hand, and so I’m glad to see folks from other religions making use of Catholic ones. The truth of a moral insight–not whose community is best known for articulating it–is what is important.

The article contains a number of points that I may end up having to discuss in future posts, such as the interpretation of the verses in Exodus as they apply to abortion and the morality of nuclear deterrence, but for this post let’s stick to the application that the author makes of the principle of double-effect to the embryonic stem cell controversy.

In responding, I will be speaking from a Catholic perspective. Mr. Rosen may make different assumptions at various points (e.g., about whether the unborn are human beings from the moment of conception, though this is a matter of science rather than religion; scientifically a human being or living human organism comes into existence as soon as the germ cells unite), but I hope the exercise will be informative.

Let’s start with an articulation of the elements in the principle of double-effect:

One may perform an action which has two effects, one of which is evil and the other of which is good, if and only if:

1) The action is not itself intrinsically immoral.
2) The evil effect is not an end in itself.
3) The evil effect is not a means to the good effect.
4) The good effect is proportionate to the evil effect (meaning, at least as much good is expected to result as evil).
5) There is not a better way of achieving the good effect.

Now let’s apply this to artificially creating embryos and harvesting their stem cells in order to create a stem cell line for medical research.

While the author is correct in saying that "creating stem-cell lines for research is not wrong in itself," he has misframed the issue. The issue is not "Can you create a stem cell line?" The issue is "Can you artificially create and then destroy embryos for purposes of creating a stem cell line?"

When the correct issue is identified, it is clear that the first condition of the principle of double-effect is not satisfied (at least from the Catholic perspective). The artificial creation of human beings is intrinsically immoral. God designed human reproduction to take place in a certain fashion, and man is not free to circumvent his design. While medical technology can assist human reproduction, it cannot replace it, such as combining human germ cells in vitro.

That said, once a human being has been created–whether in vitro or in utero or by a transporter device or anything else–that human has a right to life and cannot be killed unless he becomes an aggressor who poses a grave danger to other humans so that the principle of legitimate defense becomes involved.

To kill him without the principle of legitimate defense being triggered is to kill an innocent human being and this is (from the Catholic perspective) intrinsically immoral. As John Paul II wrote in his encyclical Evangelium Vitae:

[B]y the authority which Christ conferred
upon Peter and his Successors, and in communion with the Bishops of the
Catholic Church, I confirm that the direct and voluntary killing of an innocent
human being is always gravely immoral. This doctrine, based upon that unwritten
law which man, in the light of reason, finds in his own heart (cf. Rom
2:14-15), is reaffirmed by Sacred Scripture, transmitted by the Tradition of
the Church and taught by the ordinary and universal Magisterium.

The deliberate decision to deprive an innocent human
being of his life is always morally evil and can never be licit either as an
end in itself or as a means to a good end. It is in fact a grave act of
disobedience to the moral law, and indeed to God himself, the author and
guarantor of that law; it contradicts the fundamental virtues of justice and
charity [Evangelium Vitae 57].

When we discuss the third condition of the principle of double-effect we will look at whether embryo harvesting constitutes direct killing, but it is already clear that the enterprise of embryonic stem cell research (ESCR)–as it is currently envisioned–will not pass muster under the principle of double-effect because it does not fulfill the principle’s first condition since it involves the creation of human beings in an immoral manner.

It does, however, fulfill the second condition. Advocates of embryonic stem cell research are not proposing to create and destroy embryos for the fun of it. Those things are not the goal they are pursuing, and so the evil involved in their proposed course of action is not the end that they are pursuing. The second condition is thus fulfilled.

What about the third condition–the fact that the bad effect cannot be a means to the good effect?

Here Mr. Rosen makes an interesting statement. He writes:

[T]he bad effect (i.e. killing the embryo) is not a means to the good
effect (i.e. saving lives) because although the embryo dies after the
stem-cells are extracted, its death is not a "means" to that extraction
but rather a result thereof.

The first thing to note is that this is oddly phrased. In particular, note that "the bad effect" is identified with "killing the embryo." But killing the embryo is not an effect. It is an action. The death of the embryo is an effect, though, and Mr. Rosen later in the sentence refers to the embryo’s death ("although the embryo dies") so why don’t we assume that this is what he meant to say and see how the argument works.

The second thing to note is that Mr. Rosen is assuming that the deaths of embryos are brought about in a particular way: They aren’t directly killed, they only die as a result of having their stem cells removed.

I am not certain what technical means of extracting the stem cells Mr. Rosen has in mind here, and I have not had the opportunity to check on the precise methods that are being used to extract stem cells from embryos, but suppose that he is correct: The reason that embryos die in ESCR is that they cannot live without their stem cells (as opposed to, for example, being torn apart in order to get at their stem cells).

In this case the stem cells that are taken from the embryo are playing the same function as vital organs: They are biological components of the embryo that he cannot live without, and to take them out of him causes him to die.

What would we make of the same claim regarding an individual who has already had his stem cells differentiate into full-grown vital organs?

Suppose that I am a medical researcher who has hopes of developing a "heart line" that will allow me to grow new hearts for people and save their lives, but in order to do so I must have a living heart to start with.

Could I take a random person off the street and rip out his heart and then argue that

the bad effect (i.e. the death the person off the street) is not a means to the good
effect (i.e. saving lives) because although the passerby dies after his heart is extracted, his death is not a "means" to that extraction
but rather a result thereof.

It would seem true, on a close analysis, that the person’s death was not the means to the end of developing the heart line. I didn’t need him to die; I just needed his heart. Suppose that when I took it from him, I happened to have an artificial heart in my back pocket, and as soon as I’d extracted his biological one, I shoved the artificial one into his chest and thus kept him alive. That would seem to illustrate the point that his death itself is not a means to an end the way that, for example, bumping off your rich relative in order to get an inheritance would be.

But we still would not (morally) tolerate researchers grabbing people off the streets and ripping out their hearts in order to make advances in cardiology that will save lives.

Why?

Because (among other reasons), in the real world we don’t have good artificial hearts and they’d never be used by organlegging researchers anyway and so the actions of such researchers would cause the deaths of innocent people.

Removing part of a person’s body that that person needs in order to live is directly killing the person. I can’t rip out a person’s heart or liver or lungs or stem cells or anything else that the person needs to stay alive and claim that I’m not killing him.

We thus loop back to the first condition needed for the law of double-effect: The action cannot be immoral in itself, and directly and voluntarily killing a person–by removing his heart or his stem cells–is intrinsically immoral.

The fourth condition–that the good effect is proportionate to the evil effect, is one that is arguable. While we have not yet had life-saving breakthroughs from embryonic stem cell lines, it is quite possible that we will in the future. If so, it is possible that the number of lives that will be saved through these means will be greater than the number of embryos that had to be killed in order to achieve them.

But the fourth condition alone–much less the mere possibility that it will be fulfilled–is not sufficient.

The fifth condition is also relevant: There has to be no better way of achieving the good. This is a subject to which Mr. Rosen devotes some attention in his article, though not in his enumeration of the double-effect conditions. He acknowledges the possibility of doing stem cell research without killing embryos and the moral preferability of such means.

At this point it is uncertain whether some of proposed alternative means are themselves moral, though others (e.g., using adult stem cells or bith matter stem cells) certainly are.

It is also uncertain whether these alternate means can allow us to do everything that ESCR would do, but that’s the nature of things: We know neither the full potential of ESCR or the full potential of the alternative means, so we cannot directly compare the results of the two.

But what we can say is that there are alternatives which at least give the appearance of the fifth condition being unfulfilled. It looks like there may be a better way of achieving the same good without killing embryos.

Whether or not that is the case, the double-effect argument fails because the very first condition is not satisfied: It is intrinsically immoral both to artificially create human beings for purposes of medical experimentation and it is intrinsically immoral to kill innocent humans for purposes of medical experimentation.

Recently I was writing
about how the way in which respect for the dead is
shown varies enormously from one culture to another, even within
Christendom.

By coincidence, I ran across some some pictures that dramatically illustrate this point, like the one below.


This is a picture of a chandelier in the Sedlec Ossuary, which is
located in the parish of Santa Barbara in Sedlec in the Czech Republic.
As you can see, it is made from human skeletons.

To me, given my cultural background, I find this extremely creepy
and have a hard time imagining how people could feel that this is an
appropriate way of handling the remains of the dead, but that’s now how
things were perceived in their culture. At least a significant portion
of people had to feel that this was reverent for it to happen, and in a
church of all places.

And the Sedlec Ossuary isn’t the only thing of this type in
Christendom. There are others as well, such as Santa Maria della
Concezione dei Cappuccini in Rome, which also has a massive ossuary
crypt of similar nature.

And there’s another big one in Portugal.

Being aware of these things, even if one personally finds them
creepy, can be helpful when one is trying to evaulate the moral
theology of how the dead are to be treated. While respect for the
remains of the dead is morally mandatory, the way in which that respect
is shown in different cultures varies in striking ways.

The kind of taboo we have in America on displaying or touching the
remains of the dead is not a human universal or even a Christian
universal.

MORE INFO ON & PICTURES OF THE SEDLEC OSSUARY.

AND SANTA MARIA DELLA CONCEZIONE DEI CAPPUCCINI.

AND THE ONE IN PORTUGAL.

AND STILL OTHERS.

Y’know, when I see pictures like the ones linked above, I can’t help
thinking about the words from one version of the old spiritual "Dem
Bones" or "Dry Bones" (which was a spiritual long before it was a kids’
song):

Ezekiel said it in the Bible,
Chapter thirty-seven, ten
These ol’ bones are gonna wake up walkin’!
These ol’ bones are gonna rise again!