Michael v. Young

the force of reason

2011-12-27T20:33:00.001-08:00

Particular reasons have particular normative force which we are bound to respect. So, will each reason's particular force be a constant between all people, contexts, and times?

Suppose not. Then a reason's force may vary in different contexts, for different people, or at different times. Will this variation of force be arbitrary or not?

If it will be arbitrary, then how could the force which a particular reason has in a particular context bind us to respect it? In any cases where a reason appeared to us to have force, we would have to think that the force in that case was merely arbitrary, and if there is anything we don't respect, it is the arbitrary. But we are bound to respect the force which particular reasons have, for the people, and in the contexts, and at the times at which the reasons have that force. So the variation in a reason's force cannot be arbitrary.

But if the variation in a reason's force cannot be arbitrary, it must be principled, and non-arbitrary. It must be reasoned! Which is to say, there must be further reasons for a reasons having the variable force which it does in various contexts, and at different times, and for different people.

Will the force of this further reason vary across contexts (or meta-contexts)? Suppose not...

There is an infinite regress here if we go down this path of saying that each reason's particular force will not be a constant between all people, contexts, and times. So we had better backtrack. We had better say that each reason's particular force will be a constant between all people, contexts, and times.

Does the above bit of reasoning work in its own terms or not?

in which I put on my management consulting hat

2011-10-26T20:59:00.000-07:00

The concept of agency cost is a useful idea of economic theory which points to a real phenomenon and problem: that of aligning the interests of agents with those of their principals. Roughly, the problem goes like this: agents or employees will (often enough and until people are as naturally ethical as they ought to be) be happy to perform poorly at their job as long as they will continue to be paid; the distinctive problem, then, is to somehow manage the agent to ensure that they do their job well. But any such management comes at a cost. It always costs something to implement review or incentive structures which ensure that agents will be motivated to act always and only in the principal's best interest. Hence, the basic problem of agency cost.

Still, some modes of agent supervision and incentivization will be more cost-effective than others. Hiring a full-time inspector to constantly watch and inspect the work of each employee might be extremely effective in ensuring that employees don't slack off, but it is usually too cost-prohibitive to be a viable option. Encouraging employees to work in teams may be a more cost-effective model, with the thought that there will tend to be group policing against free-riding slackers. (But if the entire group goes bad, then there is another set of problems.) Performance bonuses are yet another popular way of ensuring appropriate high effort.

Performance bonuses can cause their own separate problems, however. For example, bonuses paid out at the end of a year for work performed during that year encourage short-term thinking in employees who are motivated to do the flashiest projects that will get the most management attention for the greatest bonus. Of course, this isn't making any news: arguably, the present financial crisis was in part caused by agents who had unfortunately short-term views. From the point of view of someone who stands to receive a hefty bonus for getting deals done, the natural incentive is to get lots of deals done and to do so sooner rather than later even if the quality of the deal is sub-par; if the deal goes south in 5, 10, or 20 years, there will typically be no clawback of the employee's bonus.

If I am right that there is in some cases or industries this phenomenon of performance bonuses causing these types of distortions in agent performance, then I have two ideas for fixing the problem. Those ideas are these:

Make bonuses subject to progressive clawbacks contingent on the failure of the employee's work-product. So, to stick with the financial example, if the deal goes bad within 1 year, 90% of the bonus is returned; if in 5 years, 10% is returned. (Made up numbers, but you get the idea. The clawback percentages could be calibrated to create the optimum amount of incentive to act foresightfully.)
Provide some portion of the performance bonus in a deeply retrospective manner. E.g.: after five years, your deals over that period will be reviewed and you will receive some bonus depending on the success of your work over time. Incidentally, deeply retrospective performance bonuses will encourage long-term commitments from employees to a particular principal, which will further enhance the principal's position.

The examples given are loosely from the financial industry (since that industry has caused so much economic wreckage from so much lack of foresight), but I think the principles might work in other spheres as well. Of course, this idea has its costs -- reviews at the space of five years are not costless, and success-criteria would have to be defined in advance -- but it may be a cost worth paying for the incentive to longer-term thinking which it provides.

the killing of al-Awlaki

2011-10-02T20:00:00.000-07:00

So, a drone strike has killed Anwar Al-Awlaki, an American citizen, al-Qaeda member and radical Islamic cleric who had been hiding in Yemen. The strike was a long time coming; Al-Awlaki has been on the chief hit-list for over a year, at least. This event has led Glen Greenwald to bemoan the "new" power of the American president to "murder" American citizens by targeting them for assassination without due process.

To call the power in question a "new" power is somewhat polemical. Does anyone doubt that, at least in a classical battlefield situation, the Commander-in-Chief has always had the power to target enemy commanders (or soldiers), whatever their citizenry? You throw in with the enemy, you take your risks. So then the point is, I think, either that:

a) the war against Al-Qaeda and its members is, in a relevant moral sense, different from the aforementioned classical battlefield situation- (perhaps we say -- it is not "really" a war at all, but I've never been convinced by the arguments here, and, anyway, I don't think the point is really to wrangle over the legal definition of "battlefield") (the point must be to find and then draw a distinction based on the relevant moral sense of things) or

b) even if the war against Al-Qaeda and its member is not in any morally relevant sense distinct from other sorts of wars, still there ought in any case to be more or different process when determining a hit against an American citizen, even if he is, say, an enemy commander beyond the reach of traditional legal process- (but then let's have a concrete alternative proposal)-

I don't think a can be maintained on reflection (although not everyone agrees, obviously), and I'm sympathetic to b in some moods, but I have yet to hear a workable alternative concrete proposal. The question would be: what process would we trust more than the current one (which basically amounts to ex post political review -- the President can be punished by the electorate in one way or another if they think he oversteps). And what process would be appropriately sensitive to the operational demands of a dynamic battlefield situation? What do we do? Top-secret trials in abstentia? That indeed might be an improvement-- I wouldn't necessarily oppose it-- but even that has its downsides. There would still need to be secrecy in the case of top-secret evidence, and the defendant would still not be "confronted" by the evidence against him. From the (dogmatically) civil libertarian viewpoint, there would be much still to oppose. From the military perspective, the process could be unduly cumbersome (remember the old stories about letting bin Laden get away shortly after 9/11 because some functionary lawyer advised against a targeted strike?- even if apocryphal, the story has a moral).

But then what? Do we really think that there should be a de facto per se ban against deliberately killing any enemy combatant who has American citizenship and is effectively beyond the reach of American law? I don't especially, and I doubt most others do on serious reflection. I'm not (as Greenwald says) "cheerleading" here. But I'm frustrated with civil libertarians who are long on hand-wringing and short on any constructive alternative proposals, and who anyway tend to give no indication of appreciating the real, practical difficulties.

(Maybe Al-Awlaki was indeed no very serious threat; but, then again, maybe he was, and the evidence which shows it could not safely be made public. The assumption to make when trying to develop policy is the latter, because that is the assumption which brings out the real difficulties. (If you want a recipe for myopic policy, it would be to ignore real difficulties and practical problems as a rule.) In this vein, I agree that the question is not about Al-Awlaki particularly, but is bigger-- it is about the sort of policy we ought to have in a certain sort of desperate case.)

puzzles of patent policy

2011-10-02T12:50:00.001-07:00

Read this article in the New Yorker (from 1993) for a still-relevant essay about the fundamental problems of contemporary patent policy. This article was the inspiration for a movie called "Flash of Genius" (not especially well reviewed). I haven't seen the movie, but from the trailer and reviews, I get the sense that the fimmakers missed some of the point of the above New Yorker article. The film is presented as an underdog story: heroic inventor against big, impersonal corporation which committed outright theft of inventor's efforts. The problem of patent policy, however--and a problem fairly highlighted in the article--is considerably harder to face squarely: how to make appropriate sense of the idea of an "inventor" at all, especially where nearly all inventors and inventions would be practically impossible except in some wider social context? The current American standard judges patentability in relation to what is "obvious to a person reasonably skilled in the art," but this standard, it seems, manages to give less guidance than good legal standards ought. But what to do then? As a recent episode of This American Life makes clear, the stakes are high; bad patent policy means restricting innovation by charging tolls on innovative companies, at the potential cost of driving some of those companies out of business. (And there is Google's $12.5 billion acquisition of Motorola for, in large part, its patents. That's billions of dollars spent, essentially, on a litigation strategy to protect itself from patent infringement lawsuits. That's billions not spent developing new products and technologies-- investment that would have fueled real economic growth and jobs.)

explaining (away) the Knobe effect

2011-09-20T22:23:00.001-07:00

Consider Joshua Knobe and the so-called "Knobe effect." Knobe is the high-priest of x-phi (or "experimental philosophy") who, in 2003, somehow induced the editors of Analysis to sully themselves by publishing the results of an empirical study in their respected philosophy journal.* The study purported to show something about the ordinary moral judgment of ordinary people that might be suprising. In Knobe's telling, his study seemed to show that "there seems to be an asymmetry whereby people are considerably more willing to blame the agent for bad side effects than to praise the agent for good side effects."** But I think Knobe mis-interpreted his own results, and, in this post, I want to explain why.

First, I'm going to quote from a friend's description of the experiment:

Knobe presented his questions to 78 people spending time in a Manhattan public park. Each subject was randomly assigned to either the 'harm condition' or the 'help condition'. Subjects in the harm condition read the following vignette

The vice-president of a company went to the chairman of the board and said, 'We are thinking of starting a new program. It will help us increase profits, but it will also harm the environment.' The chairman of the board answered, 'I don't care at all about harming the environment. I just want to make as much profit as I can. Let's start the new program.' They started the new program. Sure enough, the environment was harmed.

These subjects were then asked to determine how much blame the chairman deserved for what he did (on a scale from 0 to 6) and to say whether they thought the chairman intentionally harmed the environment. In the harm condition, most subjects (82%) said that the agent brought about the side effect (harming the environment) intentionally.

Subjects in the help condition received a vignette that was almost exactly the same, except that the word 'harm' was replaced by 'help':

The vice-president of a company went to the chairman of the board and said, 'We are thinking of starting a new program. It will help us increase profits, and it will also help the environment.' The chairman of the board answered, 'I don't care at all about helping the environment. I just want to make as much profit as I can. Let's start the new program.' They started the new program. Sure enough, the environment was helped.

These subjects were then asked to determine how much praise the chairman deserved (on a scale from 0 to 6) and whether they thought the chairman intentionally helped the environment. As predicted, the two conditions elicited two radically different patterns of responses. In the harm condition, most subjects (82%) said that the agent brought about the side effect intentionally, whereas in the help condition, most subjects (77%) said that the agent did not bring about the side effect intentionally!

In drawing the conclusion he does, Knobe implicitly depends on the assumption that the helping and harming cases are, in fact, morally symmetrical. The interest of his "asymmetrical" result depends critically on its being the case that subjects are not simply being appropriately sensitive to real moral differences between the helping and harming conditions. If we were convinced that the subjects's overall pattern of judgment was morally appropriate or essentially rational, why would it be interesting to call it an "asymmetrical" pattern? The interest in Knobe's conclusion is in the (implicit) suggestion that ordinary moral intuition is deeply irrational and inconsistent-- in particular, that it is inappropriately sensitive to features which couldn't possibly amount to a real moral difference.

What I want to suggest, however, is that the two situations--the helping and harming conditions--in fact are not morally symmetrical from the viewpoint of the praise- or blame- worthiness of the chairman of the board. And because they are not, the experiment simply fails to show the sort of irrational or iconsistent "asymmetry" that Knobe supposes. Knobe, in other words, is not licensed to draw the inference he does.

This may seem like a very strong conclusion on my part. After all, the two conditions were deliberately constructed so that the only difference between them is that one helps and one harms the environment. Where we are assuming equal amounts of help or harm, and where we are assuming that the valuable thing in question (the environment) makes equal moral demands to be helped or harmed (per unit of help or harm, respectively), where is the room for a real moral difference? (Incidentally, I don't question either of these two assumptions. They seem both plausible and a part of the original though-experiment.)

Despite this deliberate attempt to create moral symmetry between the two conditions, however, a moral asymmetry nevertheless crept in. The chairman in the first hypo is revealed as a person who is willing to destroy something of value, and the chairman in the second hypo is revealed as a person who is indifferent to something of value. The moral difference between the characters revealed in the respective hypos is the difference between Nazi Germany and Switzerland; it is the difference between an agent who is unmistakably (given his actual actions) willing to harm versus an agent who is (given his actual actions) possibly merely indifferent to either help or harm. This is a Real Moral Difference in the agent's culpable mental state, or mens rea. (Mens rea -- it ain't just fer' criminal law.)

In general, I think it's important not to get distracted by the form of words in the hypos. The asymmetry I'm suggesting is not about the amounts of help or harm to the environment, or about any inequality in the strengths of the demands to help or not harm. Attend instead to the complete picture evoked by the words in each case, and especially, to the sort of agent revealed in that picture. Do that, I think, and you'll see that there is an asymmetry in kind of agent pictured, and that it's not about help or harm per se. The asymmetry is about the sort of mens rea we attribute to the agent, and those mens reas are not symmetrical in any sense.

So Knobe's subjects, in fact, are arguably simply being sensitive to the real moral differences in the respective situations. If so, then there is not much mystery, and we need not think that this is a case of "asymmetry" in willingness to ascribe praise or blame dependent on whether the side-effects are good or bad. At least, thinking this would require sustaining a further non-trivial moral argument that the ordinary way of connecting praise- or blame- worthiness to mens rea is improper.

Incidentally, none of what I'm suggesting will make sense if you insist on understanding praise- and blame- worthiness exclusively in terms of causing harm or causing help. In that case, you would be unable to make sense of the difference in mens rea I'm suggesting, since, by hypothesis, there is no difference in the amount of harm or help. But, as far as I can tell, that's simply a very good reason to abandon the consequentialist account of praise- and blame- worthiness as an account which can't properly encompass the relevant moral sense of things we actually have.

One final thought. The results of an "x-phi" experiment could only reveal interesting philosophical results if the results are correctly interpreted. But the question of correct interpretation is itself a conceptual question, at least in part. So, it would seem that you really can't escape the armchair in philosophy.

----

*- Experimental philosophy, or x-phi, bugs me. Understood as part of a tradition of clever empirical psychology or sociology, I have no objection. Understood as part of an essentially philosophical tradition, I view it, in my gentler moods, as a vicious betrayal. Where's the conceptual insight? Where's the concern for (in Aristotle's excellent formulation) being qua being? Or (in my preferred formulation) for thought qua thought? Where's the armchair attempt to tell how possibly some x might be the case? X-phi trades in all of that classically philosophical stuff for a mere empirical science. It's 'philosophy' for weaklings who don't know the difference between philosophy and psychology, or who anyway don't care to keep the distinction clean, even in thought. Treated as philosophy, it's a rank confusion.

** - Knobe offered a second sub-conclusion to the effect that people are more willing to ascribe intention in the case of bad effects than in the case of good effects. This result is less interesting to me. If I were going to hazard a comment here, however, it would be to suggest that in the particular context of the experiment -- particularly, in a context in which the subject is being called upon to form some kind of moral opinion about a person in a hypo -- the ordinary, non-philosophical person may well have treated the concept of "intention" as an essentially moral concept, and not as (as the researcher supposed) a concept to do with a certain kind of (essentially morally nuetral) mental state. Anyway, it seems plausible to me to suppose that many of the subjects may have thought that they were supposed to use the word 'intentionally' especially to mark out the degree of praise- or blame- worthiness of the hypothetical chairman, and not to mark out the intentionality of action strictly speaking. After all, subjects were being called upon to make some moral judgment, and many may have assumed that the question about "intentionality" was simply meant to be a further question about how praise- or blame- worthy they thought the hypothetical agent was. In other words, many of the subjects may have understood the researcher to mean, by "intentionality," "especially praise- or blame- worthy." And because most thought (for reasons explained above) that the harming chairman was especially blameworthy but that the helping chairman was not especially praiseworthy, they would have diverged in their ascription of intentionality, if they did understand 'intentional' in this way.

the sort of value that equality is

2011-09-07T20:42:00.001-07:00

What is equality essentially about, what is its scope, and how does it generally interact with the values of responsibility and freedom? Discover a truly excellent answer to these pressing questions in this very short (19 page) and readable paper on SSRN. The abstract is as follows:

This short (19-page) paper reflects on the sort of value which equality essentially is by examining why we think it might matter that people be equal with respect to anything at all. The paper defends a basic account of equality which sees equality as fundamentally about achieving a certain sort of non-subordinative, non-dominating community, and it opposes an account of equality which sees equality as fundamentally about the eradication of difference, of some (any) sort. It is argued that the former interpretation makes far better sense of a range of relevant intuitive data which it is the primary business of a philosophical account of equality to make sensible. The paper further argues that, in understanding equality as a value essentially and fundamentally about community, one does not thereby limit equality's scope (qua moral value) merely to de facto communities of a particular sort. As a value about community, equality makes demands with respect to all possible communities, but this demand is transcendent and not dependent on any empirical facts; equality would make the demands it did even if there were nothing existent that could be called 'community,' just so long as there could be community. (In fact, equality just is the reason to achieve community of the non-subordinative, non-dominating sort wherever such a community is imaginable.) Finally, the luck-egalitarian project is interpreted as being in part concerned to preserve a principled scope for the values of freedom and responsibility in an account of equality, and although the luck-egalitarian version of equality is rejected, this paper urges that this part of the luck-egalitarian project not be forgotten. Reflecting on the nature of equality reveals interesting ways in which its claims are exhausted (i.e., limited in a principled way) by the values of freedom and responsibility.

an insomniac puzzle

2011-08-11T00:04:00.001-07:00

Rather than lie sleeplessly in bed, I thought I would instead share the source of my insomniac puzzlement here:

Let's say that concepts or categories (I will use the terms interchangeably) have instances, and, moreover, that the instances of a concept can be good or bad instances, that is, instances can exemplify to a greater or lesser degree the excellences that would belong to a paradigm exemplar instance of the category. (There can be instances of pencils. These instances might be more or less worthy as the sorts of writing instruments which pencils will ideally be. Some pencils are dull, or have points which break easily, or are too light; other pencils are sharp, and keep their point tolerably well, and leave an appropriately dark mark on the paper. The former sorts of pencils are good/better examples of pencils, the latter are bad/worse examples.) We can, in other words, distinguish bad from good (or better from worse) instances of a category. If you reflectively introspect, you will find that the ground of this distinction is given in nothing but the very category itself. (To judge our dull, easily-broken pencil as a bad pencil, we do not need to appeal to any idea other than the idea of a pencil itself.) It appears, then, that a category can get inside of itself for the purpose of making sub-distinctions / sub-categorizations, as between good or bad instances of itself. How is this possible?

(The problem would go away if we said, for example, that the bad instances of a category are not really instances of that category. But I don't think this move is really open to us, as convenient as it would nevertheless be; on reflection, you will not be able to shake the impression that bad pencils are still, for all that they are bad, nevertheless pencils.)

will someone read this and give me a report?

2011-08-10T14:21:00.001-07:00

This article (found while browsing SSRN) looks interesting, but I am too busy (job-hunting, among other things) to read it at the moment. Maybe someone out there will summarize it for me? From the abstract:

Many millions of people hold conspiracy theories; they believe that powerful people have worked together in order to withhold the truth about some important practice or some terrible event. A recent example is the belief, widespread in some parts of the world, that the attacks of 9/11 were carried out not by Al Qaeda, but by Israel or the United States. Those who subscribe to conspiracy theories may create serious risks, including risks of violence, and the existence of such theories raises significant challenges for policy and law. The first challenge is to understand the mechanisms by which conspiracy theories prosper; the second challenge is to understand how such theories might be undermined. Such theories typically spread as a result of identifiable cognitive blunders, operating in conjunction with informational and reputational influences. A distinctive feature of conspiracy theories is their self-sealing quality. Conspiracy theorists are not likely to be persuaded by an attempt to dispel their theories; they may even characterize that very attempt as further proof of the conspiracy. Because those who hold conspiracy theories typically suffer from a crippled epistemology, in accordance with which it is rational to hold such theories, the best response consists in cognitive infiltration of extremist groups. Various policy dilemmas, such as the question whether it is better for government to rebut conspiracy theories or to ignore them, are explored in this light.

(Also, if anyone out there has any leads to any hot jobs, please drop me a line!)

moments from the bar exams

2011-07-28T15:37:00.001-07:00

1. Overheard in the hallway: [Mandarin, mandarin, mandarin] Terry stop [mandarin, mandarin, mandarin] . . .

2. Girl: "When I run out of time on a multiple choice, I always spend the last two minutes filling in all the remaining answer bubbles with my one particular letter."

Guy: "And what is the letter you recommend?"

Girl: (Sincerely emphatic) "I can't tell that! It's a secret!"

Guy: "Um, you realize this thing isn't graded on a curve, right?"

Girl: "Okay, it's C."

3. (two rows in front of me, day 1): Blue screen of death halfway through the afternoon essay section.

4. (two rows in front of me, day 3): Girl faints dead away, hits the floor, crash resounds through the room. Everybody stares on dumbfounded. Nobody gets out of their seat, and nobody says a word. I ask the people in front of me-- "Is she breathing?". No answer, more blank looks. Proctor ambles over, looks at girl for a half second--now lying under the table--, starts waving, still says nothing, doesn't actually check the girl out. Unfortunately, the "a girl is potentially dying on the floor" wave does not communicate urgency in any way, in part because the proctors don't want to be distracting or anything. I ask again, "is she breathing?" More blank looks, no answer, nobody seems to know what's happening or what to do. So, I get out of my chair during the bar exam (which is not done, apparently for any reason at all, ever) to try to see what's happening, and because I do not trust that there are any remotely competent people on the scene. I would want anyone to do the same for me. The girl is fine. Nobody can quite believe that I actually got out of my chair. I was literally the only one. Really? If nothing else, is nobody at least curious to know whether someone is bleeding to death or dying 10 feet away from them? Is the bar exam actually that important?

Curious event, really. I'm not sure what it all means. Was I just silly to get up? Should I have just trusted that the girl was okay and/or in good hands, despite the lack of any apparent evidence to that effect?

Oh, and in case you're wondering, the girl was fine. She recovered in a minute and was back typing away in another two.

5. (story related by friend)

Twenty computer screens in a section suddenly go dim, indicating a lack of power. Bar-taking friend calls over a technician and points this out. Tech says, "If your computer isn't working, you must handwrite your exam. I cannot help you." Friend insists that this is actually likely to be a fixable problem. Tech insists back. Tech supervisor walks over, bends down, inserts plug back into the socket it had been kicked out of by some careless guy in the section. Twenty computers restored to full AC power; problem solved. Three cheers for people who are incompetent at the fairly simple job they have. Three cheers for people who couldn't give a damn to be competent or care about your problem.

And there are more, but I am on 8 hours sleep i the last 4 days (give or take a few hours), and about to crash...

Expert Colleges

2011-07-18T22:03:00.001-07:00

I think it was Stephen Law who said that the argument from authority is the "best of all the fallacies." It's a good line which hints at some of the trickiness of dealing with expertise: appeals to and arguments from expertise can sometimes be rationally proper and legitimate, even if such appeals can also sometimes figure in fallacious forms of reasoning (and so give us the name of a fallacy). In a nice little piece appearing on the New York Times's philosophy blog, Garry Gutting pushes a bit farther yet, arguing that the failure to respect expertise can sometimes be a sort of rational mistake. In particular, Gutting argues that, if you think that someone is an expert in some domain, then you have a prima facie reason to accept their judgments within the scope of their expertise, and you make a mistake to dismiss their judgments out of hand, or on the basis of your own admittedly non-expert judgments. Gutting makes a particular target out of right-wing climate-change deniers, but he might have picked other examples, our politics being, as it happens, full of the ignorant and irrational and just plain silly.

Now, I think that Gutting is basically correct as far as he goes. But it is one thing to sort out the philosophy of the matter and another to sort out the politics. What should we do about the fact that many of our politicians fail to treat authorities or experts in the way that they rationally ought? There are, after all, real stakes here: we are all potentially subject to bad public policy when our political leaders trade rational assessments for anything less. Climate change policy is, so to speak, only the tip of the iceberg.

I suppose we might seek to re-engineer the American mind to be in all respects more rational and more demanding of rationality. But of course that goal, even if it is not to be dismissed as hopelessly utopian, will only be achieved in the very long term--and, in the meantime, we have to live under laws and policies now, whether those policies be rational or not. What is needed now is some way to systematically inject relevant expertise into the political conversation at every turn, and to do so in a way that is not seen as reflective of partisan bias.

That is, of course, not a small order, but I have an idea which might work, and in the near- to medium- term. The idea is rough and half-formed and vague in spots, but I offer it here nevertheless. My idea is this: institute a series of colleges of domain experts. (It should be pointed out that I am using the word "college" in a slightly archaic sense-- think more "College of Cardinals" and less "The College of Wooster.") These colleges would not be brick-and-mortar institutions; they would consist of networks of experts--economists, scientists, academics--who would be called upon, periodically, to render opinions on discrete survey-type questions posed to them. (So, the questions might be like this: does man-made climate change exist? is evolution a true theory of biological origins? is the national debt a national crises at the present?) These networks would be deliberately broad and large--broad and large enough to avoid the accusation that the members are particularly beholden to any one political party--and membership would not be dependent on appointment by any political figure. (Already, this proposal should be seen as distinguishable from Presidential advisory panels and and blue-ribbon committees and policy czars--the usual way in which we attempt to inject expertise into politics.) Ideally, these colleges will be instituted through an official act of some kind, either an act of Congress or (more do-ably) a unilateral act of the President, which will further give them some automatic status and relevance, and more status and relevance than, say, an opinion poll conducted by a media outlet which may or may not be viewed as partisan. Once created, these colleges would represent an opportunity for the systematic injection of relevant expertise into policy discussions of all sorts.

The monetary cost to creating this kind of institution would be virtually nil, if the periodic polling of experts is conducted online, for example; and there is no proposal here that the experts in question would do any research or report-writing especially for anyone; they would just each answer short questions based on the state of the relevant science in general. The point would be to improve the state of knowledge of the politicians and policy-makers by getting the policy-makers up-to-speed on what are the conventionally-accepted truths known to the relevant experts; the goal is not to supplant that policy-making or generate yet more unread reports and recommendations from blue-ribbon panels and special working groups. Moreover, there is no reason in advance why one or another political party should oppose the expert-colleges idea. Partisans of both political parties harbor suspicions that those on the other side of the aisle are sometimes naive and parochial, and both parties should, in consequence, welcome the opportunity to force their opponents to face the facts in a grown-up way. Indeed, we all should welcome the opportunity to inject more facts and rationality into public discourse.

The ignorant, irrational and silly could still improperly ignore or dismiss the experts, of course, and surely many would. But if all the participants to the political conversation knew in advance that these experts could not be dismissed as simply the special selectees of either a partisan media or a political opponent, if the expert opinions were presented succinctly enough to be readily grasped and understood, and if the colleges in question had a sort of public institutional standing of the sort envisioned, we might just manage to create a sort of standing systematic pressure to engage and confront such expertise as rationally ought to be engaged. If such pressure exists today, it exists in an ad hoc way only; perhaps a pesky reporter or a political opponent will dig up some relevant expertise and force some attention where it belongs, but, then again, perhaps she won't. The creation of standing, institutional pressure to confront relevant expertise might be but a small improvement for our public policy discourse, but it would, at least, be more than we have now, and would be pressure in the right direction.

new(ly posted) scholarship

2011-07-16T23:58:00.001-07:00

Here is a link to a short (8 page) paper I wrote last December, in case it's of any interest. The abstract is as follows:

This short and rough 8-page draft attempts an original reflection on the normative concept of coercion, and compares and contrasts two philosophical methodologies for approaching the task of philosophically illuminating the concept of coercion (or for that matter, any normative concept). Especially, the "extractive approach" is identified, explained, and rejected; this is the attempt, in fact common throughout philosophy, to understand a concept by distilling a (pre-concept) essence from its instances. Through counterexample, the paper argues that the usual results of the extractive approach in the case of coercion can all be shown as inessential to the category; the paper argues against understanding coercion as having to do necessarily with threats, contingency announcements, bad intentions, successfully restricting options, causing any kind of belief in the victim, or the notion of seeing reasons to act otherwise than one is coerced to act. Instead, the thesis is advanced that coercion is essentially about wrongly determining a person in some way, an admittedly abstract, general notion that does not already contain a theory of just precisely when a person is wrongly determined. This thin, minimal account is defended--despite its thinness and minimality--as having several theoretical virtues: especially, it makes fruitful sense of disagreement between people who may disagree as to the coerciveness of particular cases, and it gives us an appropriate sense for the natural stakes of coercion. In the end, it is argued that, even if my particular formulation is unconvincing, these are the sorts of things that should primarily be demanded of any philosophical illumination of a concept.

test post

2011-07-16T22:42:00.001-07:00

This is a test. This is only a test. (I'm trying to see how it works to post to the blog directly from my email account. I tried doing that on my last post but the effect was weird (I've since edited it to make it format correctly).)

about drugs and value and Sam Harris

2011-07-16T22:21:00.001-07:00

Sam Harris comes out in favor of drugs, which doesn't bother me per se--I avoid anything stronger than aspirin, myself, but I'm for the conversation--, but then there is his first paragraph, which does bother me a bit:

Everything we do is for the purpose of altering consciousness. We form friendships so that we can feel certain emotions, like love, and avoid others, like loneliness. We read for the pleasure of thinking another person’s thoughts. Every waking moment—and even in our dreams—we struggle to direct the flow of sensation, emotion, and cognition toward states of consciousness that we value.

The problem with this formulation is that it represents "altered consciousness" as a reason of some sort, as if just any kind of altered consciousness was worth achieving as such. But of course that's just crazy: skinning your shin will alter your consciousness, but that doesn't make shin-kicking even presumptively worth doing.

Of course, Harris clearly recognizes that there are some kinds of consciousnesses worth having and some kinds worth avoiding, and so he surely doesn't mean to stake the claim that there is something special about altered consciousness as such. But then, kluge formulations aside, what should we say about the distinction between forms of altered consciousness worth having versus those forms of consciousness worth avoiding? If there is value to be located, it is in whatever gives the ground of that further distinction; and that ground, on pain of vicious circularity, can't be consciousness-altering itself. That is, there has to be some way we mark the distinction between forms of altered consciousness worth having v. worth avoiding which isn't itself dependent on the very idea of altered consciousness.

There is a view that would do the trick here. We might say that the items in the list of valuable things -- friendship, reading a good novel, having a meaningful conversation -- are in fact sources of intrinsic value, not valuable because of the state of consciousness they ideally effect, but valuable for their own sake. If we do say this, then we can make further sense of a distinction between better and worse forms of consciousness as having something to do with the connection to those deeper sources of value. So, we say, roughly: those forms of consciousness worth having connect to intrinsic goods, and the rest don't. Unless we say something like this, we will have a puzzle as to how to mark the relevant distinction between better and worse forms of consciousness at all. In any case, it won't do to treat the idea of "altered consciousness" itself as having intrinsic value or being a reason or giving rational purposes. I might have friendships, and read good books, and seek out good conversation because all of those things are themselves worthwhile, but I surely don't seek these things because they are instrumental in achieving some sort of "altered consciousness" whose value is an opaque mystery.

Intuitions in Philosophy

2011-04-20T20:30:00.000-07:00

A friend sends a link to an article about intuitions in philosophy, an article which, in part, attempts to explain what that role is. Rather than keep my emailed reply private, I thought I would post it here-- the topic of intuitions in philosophy has become hotter and hotter of late. Also, I'm increasingly convinced that a great many philosophers misunderstand their own practice as philosophers and get things wrong. Deeply wrong. There is a good deal to say about all this, but, just for starters, my email response:

Thanks for this; it's a useful article. I think the authors's view of the role of intuitions is probably too simplistic. This assertion in particular gets things really and deeply wrong as a description of philosophical practice:

"In many traditional and contemporary philosophical projects, when an intuition is invoked it is assumed that the propositional content of the intuition is likely to be true, and thus that the proposition can be used as evidence."

Especially, I don't think that intuitions matter because we think that they are true, but simply because, when properly interpreted, they are what we think, true or not. If we're in the project of theorizing over what we think, then that we think something at all, true or not, has to be part of the data we are meant to theorize, and is significant simply for that reason. (Sosa is wrong that intutions are like observation; they are not; they are like data.) So maybe it is true to say that intuitions count as evidence for and against philosophical theories, but, if so, it is only in the way that data generally counts as evidence for or against a theory which aims to theorize over that very data. [Ed.- Anyway, what matters is that the role of intuitions as thought, and the role of thought as data, as objects of theorizing, as stuff which philosophical theorizing is chiefly about, should not be obscured.]

The example of Gettier cases shows what I'm getting at nicely, I think. It doesn't matter if you fail to have the relevant intuition in 100 such cases-- so long as you have it in one, you have a contradiction within your thought (if you are committed to the JTB theory of knowledge, that is) which you need somehow to resolve. Even one such Gettier intuition creates serious trouble for the theory, no matter how often it is that JTB seems to work as an account of knowledge. (And of course JTB *does* seem to work in lots and lots of cases, or else it wouldn't have ever been a serious contending theory in the first place.) But that just means that intuitions aren't like weights in a balance which measures evidence v. counter-evidence and so gives us the measure of a theory's truth.

A First Nutty Idea: In Defense of the Strong Thesis of Normativity's Empire

2011-01-14T21:57:00.000-08:00

Mainly for the sake of being provocative and antagonizing a good philosophical friend, I recently posited what I'm now calling the strong thesis of normativity's empire: all concepts, in themselves, are essentially normative. So normativity is an empire covering everything, or, at least, everything which might belong under a concept.

Stated baldy, it can be a pretty implausible-sounding hypothesis, I'll admit. There are clearly classes of concepts--moral concepts, most obviously--which seem intrinsically normative; that is, as carrying with themselves an idea of reason, where the idea of reason is itself ineluctably connected with the idea of what might or must be a proper way for the world or its parts to be. Then there are concepts in a gray area--concepts like etiquette, and law, and (even) grammar--which, although bound up with the idea of rule-governed activity, perhaps seem to be dignified too much if regarded as, in themselves, really normative. These concepts, we might think, are uncertain cases worth arguing about. (The argument on the pro- side would go like this: to say that a thing is lawful, or grammatical, or polite--and just that alone--is to purport to offer some weak reason to prefer it. But that just means that the ideas in question are essentially normative.)

But then what of concepts like 'red'? Surely, you say, a concept like that is purely descriptive, and it would have to be the height of extravagance to suppose that it was intrinsically normative in any full-blooded sense of 'normative.' This is the burdensome hard case for the strong thesis. Nevertheless, maybe the burden can be met. Restricting our conversation just to 'red,' what can be said in favor of the strong thesis of normativity's empire? This, I think:

To say that something is red is to say that it ought to produce a certain subjective reaction in a subject. So, in fact, the idea of 'red' is an idea connected essentially with a certain idea of how stuff should go, and how the world should be. It is, in other words, an essentially normative concept.

The question is whether this account actually makes any kind of sense of 'red.' It seems to me that it might. So: we can make sense of the idea of red-blindness because we have the idea of the way in which, in certain (red) circumstances,* a subject ought to be phenomenologically affected. We can identify a certain frequency-range of lightas red only because we have a prior idea of how subjects should, in certain (red) circumstances, be affected: the frequency-range in question, then, is just the range which "matches" the appropriate response in the appropriate circumstance. So, in short, the normative account of the concept 'red' generally makes sense of the ways we might use the concept (in medicine! in physics!). So, that's saying that it's a Pretty Good Account.

So, maybe the strong thesis of normativity's empire is true after all. At the least, it appears at present to be an undefeated conjecture. Anyone out there want to offer the knock-down reason that buries this conjecture?

---
* - I know what you're thinking, and you're probably right, insofar as I'm thinking it too: there is no way of individuating the circumstances in question without having an idea of red already. So, it turns out that we only get the idea of red with the idea of red. This, I aver, seems intuitively both empty and right. It is a problem which occurs for other accounts of red. Suppose we say that 'red' is that (pointing now at something red). How do we individuate 'that'? Not just any arbitrary way-- it must be individuated in the red way. But then we have the same problem. I do not know the way out here; and yet! 'red' means something!

Update on the last paper

2010-12-29T17:56:00.000-08:00

The number of downloads of my paper on SSRN increased significantly after this nod from the legal theory blog. Prof. Solum includes a nice little note:

This appears to be an unusually sophisticated and well-written student paper. In any event, it is recommended.

As gratifying a little blurb as I've ever received!

In a related vein, I found some typos in the version of the last paper I posted here; I have since corrected and made other very minor changes. Until SSRN gets the revised paper out, a cleaned-up version can be downloaded here. Downloading there won't increase my SSRN download numbers, and the chance of making the all-important SSRN niche rankings, but these are the sacrifices I am willing to make for the sake of very slight improvements in readability.

My best wishes to everyone for a very happy holiday, or what remains of it!

New Paper on Some Central Issues in Legal Philosophy

2010-12-26T12:15:00.000-08:00

Written for Modern Legal Philosohy this semester, I mount an argument for what I am calling a minimal, naive, natural law view. The abstract is as follows:

This paper articulates a defense of a minimal natural law view in two ways. First, it argues that a minimal natural law view--a view which affirms that the law itself is intrinsically valuable, reason-giving, and normative--is compatible with a weak view of legal obligation, and with a sharp distinction between law and morality. Second, this paper argues (albeit indirectly, in a methodological way) for the naive view that the law's seeming normativity is best explained by the law's being really normative, in itself and in abstraction from any further circumstance or social facts. The naive view, I argue, is or seems to be our own pre-theoretical view of the law. Yet, the positivist project, as traditionally understood, is committed to denying this intuitive naive view; on the positivist view, the law may really give reasons in some circumstances, but it does not give reasons necessarily, that is, it is not intrinsically reason-giving. This paper argues that the positivist project consequently has a skeptical burden to bear: it must show that all those (including most readers, and including, I suspect, even most positivists) who have some minimal, natural law intuitions are probably confused or mistaken. The positivist has this burden because it is a grounding assumption of the positivist project that the thing to be theorized by a legal philosopher is not any normative thing; unless this assumption is justified, the entire positivist project stands unsupported, and must be dispreferred to the naive view. Addressing the reasons which might be offered for the skeptical conclusion, including the theories and arguments of Joseph Raz and Andrei Marmor, this paper concludes that the positivist burden remains.

Download here. The paper is perhaps best read as one wherein I play with some ideas, rather than finally stake out theoretical territory. Still, I would be grateful for comments or criticisms.

Characters and Acts

2010-11-15T09:58:00.000-08:00

If you enjoy moral theory and have a chance, you must read The Good, The Bad, and Peter Singer. In the article, Terrance Tomkow argues for distinguishing the idea of good or bad character from the idea of a good or bad act, and he utilizes this distinction to explain (away) a sort of case which Singer advances as revealing utilitarian intuitions. It is very good stuff, and an easy, pleasant read.

Against sentencing enhancements for forcing a trial

2010-10-18T14:42:00.000-07:00

(The following short essay was originally written for a prosecution clinic class. I re-discovered it while digging through my archives in preparation for writing a thesis on the ethics of plea-bargaining. I thought it might be worth posting here.)

Suppose a defendant pleads guilty to a crime, and that the judge has some discretion in sentencing. Should a prosecutor recommend that the judge impose a lighter sentence on the defendant than would otherwise have been imposed solely for the reason that the defendant, by pleading guilty, has saved the state considerable resources by sparing it from trial? Conversely, should a defendant who insists upon going to trial where conviction is likely have a relatively heavier sentence imposed solely for the reason that the defendant, by insisting on a trial, has cost the state considerable resources in a trial?

It is clear to me that many stakeholders in the criminal justice system (prosecutors, police officers, judges) would affirmatively answer both of the above questions.

I think this answer is against justice. Given that defendants have a procedural right to a trial, why should a defendant be penalized for exercising that procedural right? Why should the state's cost of trial fall on him particularly, in the form of a higher sentence?

You might say: "Because the defendant has the power to avoid the trial by pleading guilty, and where the defendant recognizes the probability of his conviction anyway, it's just wasteful for him to make the state endure the cost of a trial." But if blame follows directly from causal ability to avoid a trial in this way, then the state is also properly blameworthy for "causing" the trial, insofar as it could have avoided the trial simply by not arresting and charging the defendant.

Moreover, this sort of sentencing factor has nothing to do with the just deserts of the defendant for the crime he committed, as that crime, nor does it have anything to do with other goals of criminal justice, like denunciation, rehabilitation, and deterrence. And surely nobody deserves punishment merely for having cost the state resources in virtue of exercising a right: we don't punish social security recipients, welfare recipients, those who call emergency services for a legitimate reason, or licensed users of state roads, even though all of these people impose costs on the state in the exercise of a right.

So, sentencing a defendant more harshly merely because that defendant caused the state to go to trial is simply unjust and inconsistent with our own deeper principles. It's punitiveness without an appropriate object, engendered perhaps by a dislike for whatever bad thing the defendant has in fact done, and a failure to separate that bad thing, whatever it is, from the legitimate exercise of a right which, like many other legitimate exercises of rights, nevertheless has a social cost. Conversely, justice is not served by "easing up" on defendants merely because, in pleading guilty, they have saved state resources, nor is justice served (conversely) by imposing extra punishment because a defendant has failed to plea.

Why PZ Myers deserves his audience

2010-10-09T09:49:00.000-07:00

A brilliant call for intelligently confrontational atheism can (and should) be read here. There's a little bit at the end of the essay about the meaning of life which may not be worth wholesale subscription, but overall, the piece is well worth the read.

Dealing with poor people across the world: a modest proposal

2010-10-01T16:50:00.000-07:00

It might not have escaped your notice that large swaths of the world are desperately poor. Haitians, for example, had an average per capita GDP of less than $1000 per year--and that was before the devastating earthquake earlier this year. Now granted, $1000 in Haiti goes further than $1000 almost anywhere in the United States. But it doesn't go so much futher that Haiti can't still be truthfully described as desperately poor, with a host of lagging social welfare indicators.

Haiti is just one example of a desperate place. In the face of such poverty worldwide, it is hard not to feel badly, and not to want to do something. Of course, "feeling badly" and "wanting to do something" doesn't mean that we actually will do anything meaningful, either individually or collectively. Take myself for example: as badly as I feel, I'm not actually going to do anything for the impoverished parts of the world that would involve abandoning the project of ruining my credit in pursuit of various forms of higher education. And as badly as we all undoubtedly feel, we have only a limited amount of energy with which to insist that governments (including our own) live up to their aid promises (as to Africa or to Haiti).

So anyway, when it comes to solving the world's poverty problems, feeling pity apparently doesn't work. Guilt doesn't work either; promises of help by rich countries to desperately poor places are routinely broken. If anything is clear about foreign aid, it's that people in rich countries are by-and-large incapable of even feeling guilt with regard to the plight of people in poor countries, and that after repeatedly promising and failing to deliver aid to the desperate people of those countries. We have, no doubt, better things to do than feeling guilty; and feeling guilt is uncomfortable in ways that feeling pity isn't.

The imperialist take-over of the world's poor spots might work, the idea there being one of imposing proper functioning institutions on those countries. However, despite all the reasons David Brooks could offer for the imperialist option--and despite my own helpful efforts to make his proposal seem more respectable than it probably was--it is time to admit that that proposal has stalled and is going nowhere, probably in light of the great expense to rich countries.

So, it's time for another proposal, namely this: the rich countries of the world ought to let the poor people of the world immigrate freely. To the extent that poor people would immigrate, that represents their judgment that doing so is a way of materially improving their condition; and it is perhaps safe to presume that they would be in a position to know. (At any rate, if they don't know their own interests, surely they have only themselves to blame.) Since we can't get a panacea, we might settle for making things systematically incrementally better; and there is reason to think that free immigration would do that.

The objection may be that immigration imposes costs on us non-immigrants in unacceptable ways. Here, however, careful consideration of these particular supposed costs reveals such concerns to be largely empty.

"But immigrants will use social welfare services at the expense of us non-immigrants." But there is an obvious answer to this objection: the laws can be changed to prevent recent immigrants from accessing such services. (So, in America for example, we might change the law that requires emergency rooms to provide services to everyone so that immigrants are excepted.) This means that some of those immigrants will suffer and die in rich countries from want of such services; but, of course, they could have suffered and died elsewhere just as well. What is decisive is the consideration of cost.

Admittedly, there would be incremental costs of policing to us, and this is a downside. Although our free immigration law would forbid criminals from immigrating, despite the best efforts of our border guards, some criminals would undoubtedly get through. This will sometimes impose a cost on the rest of us non-immigrants. Still, this cost can perhaps be minimized: in the case of immigrant-on immigrant-crime, we need not prosecute or police vigorously, if at all. In the case of immigrant on non-immigrant crime or law-breaking, rather than giving the immigrant an expensive trial, appeals process, and incarceration at taxpayer (read: our) expense, we could have a summary trial and execution for all crimes. This would cut costs considerably -- perhaps, almost to the point of being barely noticeable at all. For small crimes like jaywalking where the death penalty seems far too harsh and would be unpermitted by our consciences, we could punish in some better way, like fining. Of course, if the immigrant is too poor to pay the fine, then we could take other less-than-death-penalty measures instead, e.g, maiming their legs, or breaking a hand; this would get the message across about the importance of upholding the law, and be more in keeping with our sense of justice. As before, the major pity would be the cost to our system for the time of the policeman, judge, and leg- or hand- breaker. Still, I would bet that after a few such leg- or hand- breakings, the immigrants would get the message. And if not, we could always return to the much more cost-effective option of summary execution.

As for the rest of the non-criminal law -- the law of contract, say, or property, or torts -- we should just not enforce that law at all for the immigrants, unless the immigrants can reimburse us for that enforcement (i.e., for the cost of the judge's time).

"But," you say, "the immigrants will become citizens, gain a say in the making of laws, and eventually make laws that require better treatment for them at more expense to us." The obvious solution here is to pass a law preventing the immigrants from becoming voting citizens. If they can't vote, no politician will pander to their claimed interests. This will keep our expenses down.

"But," you say, "the immigrants will take our jobs." If this were true, then, in light of the antecedent moral right every person has to their job under the same or better conditions in which they've always had it, the objection would be fatal and decisive. However, this objection as well can be met by passing a law forbidding immigrants from taking our jobs. We are not heartless and cruel, and so the law will not prevent the immigrants from having their jobs. But this rightful concern for ourselves can certainly be accomodated within a system of free immigration.

Of course, enacting this system might mean that some desperately poor places are emptied of all people, who will flock to rich countries just as soon they can afford the ticket. There is obviously no reason at all to care about this; to the extent that we already don't care about those places with people in them, there will be even less reason to care about those places without people in them.

In sum, there is no good reason that I can see not to enact free immigration. Since it would do some good (the immigrants wouldn't immigrate otherwise, by and large), and would do vanishingly little harm, free immigration laws ought to be systematically enacted. If I have missed a reason not to do it, post in the comments, and I will try to reply when I can. Or if you think that this system would not be better (even if only incrementally) than the present system of non-aid, let me know that as well, and I'll try to respond.

Kant on Posner

2010-09-29T21:24:00.001-07:00

As you know, Richard Posner doubts that ethical theory has much point. He challenges philosophers to name an instance when mere reason-giving ever made a meaningful historical difference to ethical practice. (My thought here was that this is the wrong question; the right question is whether we have any conclusive good reason to doubt that, in principle, such reason-giving could make a difference? Cancer research still hasn't cured cancer, but that's not a reason to give up on the project, as long as we think that it could someday find a cure.)

Anyway, not to retread old debates, but I recently came across a bit of Kant in which he address the charge Posner lays. I can't resist sharing, although it may already be familiar to some readers. In the Grounding for the Metaphysics of Morals, sec. II, Kant gives his view of the issue in footnote 25:

I have a letter from the excellent Sulzer in which he asks me why it is that moral instruction accomplishes so little, even though it contains so much that is convincing to reason. My answer was delayed so that I might make it complete. But it is just that the teachers themselves have not purified their concepts: since they try to do too well by looking everywhere for motives for being good, they spoil the medicine by trying to make it really strong. For the most ordinary observation shows that when a righteous act is represented as being done with a steadfast soul and sundered from all view to any advantage in this or another world, and even under the greatest temptations of need or allurement, it far surpasses and eclipses any similar action that was in the least affected by any extraenous incentive; it elevates the soul and inspires the wish to be able to act in this way. Even moderately young children feel this impression, and duties should never be represented to them in any other way.

So there you have it; the reason for the historical sterility of ethical theory--in the Posnerian / Sulzerian sense of "it makes no visible practical difference"--is that philosophers overcomplicate matters. All you have to do, Kant thinks, is show a person what they already regard to be the most praiseworthy sort of act, namely, an act done from a motive of duty.

(Philosophers of education might incidentally note that Kant also purports to have insight into the moral psychology of children, and to recommend a certain sort of moral education.)

Confirmation Hearings and "Subjective" Values

2010-09-29T12:36:00.000-07:00

On the tip of a professor (not Dworkin), I found this nice piece on the trouble with confirmation hearings. The author is Dworkin, and the money quote is this (includes a quote within a quote-- sorry):

[H]ow could Kagan decide difficult constitutional issues without relying on such [political and/or moral] conviction? She offered this answer:
I think that what I’ve said is that you look to text. You look to structure. You look to history, very much including and very especially the original understandings. And you look to precedents. And in one or another cases, one of those may be more important than others of them. In some cases, you might look to all of them. And that’s a kind of pragmatic approach, not an approach that takes a sort of grand overarching philosophical view as to, you know, it’s just one thing and it’s got to be that one thing in every case.

This answer is not only guarded but empty: it says nothing at all. In academic law, more than in other disciplines, phrases quickly grow runic: it is now expected of legal theorists that they will abjure “overarching” theories and endorse a “pragmatic” approach. In this context, however, “pragmatic” has no content. In philosophy, pragmatism is a theory of scientific truth; in politics it means doing what is necessary to achieve a stipulated goal—Mideast peace, for instance, or reelection. But in constitutional law the question is not how to achieve a given goal but which goal we should try to achieve. Is it “pragmatic” to protect fetuses from abortion? Or to protect a woman’s power to decide for herself? Justices should of course be “pragmatic” in guarding a right to free speech. But that truism doesn’t help them decide what that right embraces.

Dworkin is right that the fear of "subjective" values--evident in jurisprudential theories both left and right--is a fear that just gets in the way, and needs to be overcome.

New Paper - Against Public Reason in Rawls

2010-09-27T20:18:00.000-07:00

A draft version of a paper I am co-writing on Rawls is now available for download, for those who have any interest in previewing the work. The abstract (hastily written) is as follows:

The present paper develops a critique of Rawlsian public reason internal to Rawlsian theory itself. The idea of public reason in Rawls encapsulates Rawls's recommendation against giving reasons in civic discourse where those reasons "belong to" any particular comprehensive doctrine; in this way, Rawls aims to maintain the sort of neutrality in public justification which he regards as essential to legitimacy, stability, and host of other political goods. Within Rawlsian theory, the idea of public reason is justified in terms of the Criterion of Reciprocity, a principle which Rawls calls the "liberal principle of legitimacy," and which insists that reasons should not be offered in justificatory discourse unless they could be thought reasonably acceptable to the citizens to whom they are offered. Granting the propriety of the Criterion, and connecting the Criterion to public reason, we show that there is no good reason to think that nonpublic reason will necessarily be reasons unacceptable to plural citizens. Consequently, and surprisingly, the idea of public reason is insufficiently supported within Rawlsian theory itself.

Comments and suggestions are of course welcome.

Against Hedonism

2010-09-16T20:09:00.000-07:00

What is valuable? One theory, hedonism, insists that only pleasure is valuable. On this theory, other supposed values are only valuable -- can only be valuable -- given that they just are or create pleasure. (For the hedonist, the former is a case of intrinsic value, and the latter a case of instrumental value.)

So, here are some examples for the hedonist to consider; whether they are, as I hope, properly counter-examples perhaps remains to be seen.

Schadenfreude. We don't need to specify a context to know that it just seems wrong to have instinctive pleasure in the misfortune of others. If all you know about a situation is that it is a celebration of misfortune, you know enough to morally object. But where the celebration of misfortune contains a good on the hedonic account (the pleasure), and where it does not necessarily destroy a good or involve anything the hedonist could identify as an offsetting evil (as I think is the case here, especially given the level of abstraction I've provided), how can the moral intuition in question be correct? (The "misfortune" itself cannot be the location of the badness, since the context "celebration of misfortune" doesn't contain or cause the misfortune itself. It is one thing to object to a misfortune and another to object to pleasure-taking at misfortune).

Duty-bound acts. We act frequently out of a sense of duty where neither we nor anyone else has any pleasure from such acts. We often take such acts, moreover, to have some good or to contain something of worth or value. How could this be a correct judgment on the hedonic account where the thing being valued (the duty-bound act) contains no pleasure? As a concerete example of a case like this: suppose you are a professor, and a dull student comes to your office for help in understanding some of the material you covered in class. You may try to help that student long past the point at which either of you have any pleasure in the interaction, yet that interaction itself may be viewed as something of value because a case where you (the professor) are acting out of a sense of obligation belonging to a proper professor-pupil relationship.

The Value of Good Artwork. Hedonism implies that works of art can have only instrumental value: since works of art do not contain pleasure in themselves, their value can only consist in the pleasure they cause art-lovers to have. But this is the wrong conclusion. Imagine a world in which there were more good works of art than could possibly be appreciated by art-lovers then existing or who ever would (in that world) exist. Of such a world, how could the hedonist avoid thinking, implausibly, that the destruction of some good works of art would be indifferent in terms of value lost, just so long as enough works were left to sate the pleasure-seeking appetites of the art-lovers? Yet surely this is an incorrect conclusion; surely something of value necessarily is lost when existing good works of art are destroyed.

The hedonist could deny that the intuitions I'm going for are correct; the question then is what makes these denials anything other than dogmatic?

The Lagging Religious Faith of the American Teenager--

2010-08-27T12:02:00.000-07:00

In the mode of careless half-thoughts suitable for a blog:

In a somewhat hand-wringing piece, CNN reports on the lagging Christianity of American teenagers:

"Though three out of four American teenagers claim to be Christian, fewer than half practice their faith, only half deem it important, and most can't talk coherently about their beliefs, the study found."

I am intrigued here by this thought of someone who "can't talk coherently about their beliefs." (This is an idea that also finds life in evangelical Christian apologists who preach the importance of "knowing what you believe" to Christians--ignoring the fact that not knowing what you believe is, in the first place, pretty good evidence that you don't believe it.) I would think that one of the markers of a person's beliefs is that, generally speaking, they can talk about it, so that an inability to make sense of or talk coherently about some p pretty much means that you don't believe p.

Probably the kids just don't care very much about religion, and "Christian" is just the easy default answer to the religious question for more or less cultural and historical reasons. The label has no deep meaning for most kids. And that is surely nothing much to worry about (pace the not-very-objective researcher interviewed for the piece), unless you have some advance idea of what people should, in any case, believe.

Major Honest-Services Decision Delivered Today

2010-06-24T11:03:00.000-07:00

The Supreme Court today released a major honest services decision which will have serious implications for the convictions and continued imprisonment of Jeffrey Skilling (imprisoned Enron CEO), Conrad Black (imprisoned newspaper magnate), and, probably as well, for the trial of Rod Blagoevich (who is being tried in large part on an honest services theory). The short version is that, as I previously speculated might happen, the Supreme Court has significantly pared back the expansive view of honest services fraud (fraud constituted by the failure to deliver "honest services") advocated by the Justice Department in recent years. The Court has vacated the appellate decisions upholding the convictions of Skilling and Black, for example.

I'm only managed to get through the syllabus of the 114 page slip opinion at this point. It is absolutely clear, however, that the court rejects the idea that mere "undisclosed self-dealing" amounts to the crime of fraud. Here is the syllabus on Skilling's conviction:

Skilling did not violate §1346 [the honest services statute], as the Court interprets the statute. The Government charged Skilling with conspiring to de-fraud Enron’s shareholders by misrepresenting the company’s fiscal health to his own profit, but the Government never alleged that he solicited or accepted side payments from a third party in exchange for making these misrepresentations. Because the indictment alleged three objects of the conspiracy—honest-services wire fraud, money-or-property wire fraud, and securities fraud—Skilling’s conviction is flawed.

The Court expresses the view, moreover, that only bribery and kickback cases count as honest services fraud, as only these cases represent the true core of the pre-McNally cases.

So then, what are the elements of honest services mail fraud which prosecutors must allege and prove? I think something including:

Personal finacial enrichment of the defendant
in exchange for
doing an act within the normal scope of one's duties (as an official or employee)
involving an intentional (material) misrepresentation
in violation of a fiduciary duty (but what is the source of this duty?)

I think this captures the ordinary notion of "kickbacks and bribes" implicit in the pre-McNally cases and does some justice to the basic idea of "fraud," but it's been a while since I've read those cases (most of which I immediately would have tried to forget after the final White Collar exam), so better take all of this with a gigantic grain of salt. Any other ideas for constructing a necessary-and-sufficient list of elements of the crime of "honest services fraud" in light of Skilling?

More, and probably better-quality, blogging and reporting on all of this can be found here and here and here. Incidentally, I haven't seen anyone else yet discuss the implications of this decision for the Blagoevich trial, so maybe I am missing something obvious there, after all, and the prosecution has nothing to worry about at all.

Singer v. Posner on Animal Rights, Plus, Meta-Meta-Ethics!

2010-06-24T00:39:00.001-07:00

A recently discovered item of popular philosophical interest: Peter Singer v. Richard Posner on animal rights, and the role of ethical theorizing in ethical decision making. It's an old piece, but still interesting. Posner argues that ethical arguments don't matter, and that Singer, for example, shouldn't have any faith in his ability to convince people to treat animals one way or another simply by offering ethical reasons. What matters, Posner opines, is the hard light of experience, and sentiment; and ethical arguments are so much ungrounded abstraction. Posner offers a historical challenge as well: name a clear instance where philosophizing about ethics ever made a difference (rather than simply reflected a shift already made).

I think Posner could well be right, by and large, as to the history; it might be the case that philosophers have historically been better at reflecting historical change (or at least, better at reflecting pre-existing viewpoints) than in driving such change. Incidentally, this might be changing; in Europe, at least, my impression is that philosophers are increasingly regular participants in popular or quasi-popular political debates. This may also be a trend here, albeit in the early stages; witness, for example, the New York Times' new popular philosophy blog.

My quick thoughts on Posner is that, nevertheless, even if he is right about all of this, it still doesn't conclusively ground his general meta-ethical skepticism. The hard light of experience might reflect reasons of a sort that can be understood and appreciated generally. If so, then to the extent that those reasons can be revealed to us by ethical philosophizing (and, arguably, this is just what ethical theory tries to do, in large part), then we will have revealed to ourselves reasons -- our own! -- to act in some ways and not others. Where we then fail to respect the further demands which these reasons place on our scope of action, we don't merely fail to adhere to some abstract notion of transcendent morality; we fail really to be true to ourselves in a deep way. This is what is at stake in moral skepticism, generally--it is what is at stake in dismissing Peter Singer's arguments out-of-hand, particularly--and it's a hazard which I think Posner unfortunately fails to appreciate.

Another way to get at this point, maybe, is to suggest that there are two basic ways of discovering reasons for action: by knocking our skulls against Hard Experience, or by careful philosophical reflection (which would ideally reveal reasons before we knock our skulls against Hard Experience). That humans have for the most part morally progressed because of the former isn't a reason to avoid the latter. Given the unpleasantness of skull-knocking generally, we might even have a positive reason to prefer the latter.

(The title of this post because I suppose the question of "what is at stake in meta-ethical argument?" is itself a meta-meta-ethical question.)

Ethical Musings

2010-06-10T12:50:00.001-07:00

At the Law, Religion, and Ethics blog, Steven Smith riffs on Peter Singer's recent New York Times article taking up the notion that us humans might have an ethical duty to go extinct as a species. Riffing on a riff, I take up Steven Smith's ideas there.

The very short crib notes version of my comment there (of a set of thought already rough) is that significant ethical confusion is generated by failing to carefully distinguish between a principle recommending maximizing goods (the wrong principle) and one which recommends action which gets us nearer to an idea of The Good.

Hopefully the point bears out-- I haven't reflected very much.

Note Rising

2010-06-10T12:02:00.000-07:00

In a self-serving break from procastinating from serious studying, I pause to note the rise of my Note on SSRN's Education Law (Primary and Secondary) chart of recent hits. (Currently #9, up from #10.)

And before you wags chime in, no, I'm not spending my time downloading copies to boost numbers.

Reason for the long neglect PLUS gay exorcism-

2010-06-08T19:11:00.000-07:00

A couple of reasons for the long neglect-

1) Finishing school-

2) Working on that Rawls paper. At the end of May, I co-delivered a colloquium to Department of Philosophy here at OSU on public reason in Rawls (sort of in line with this hasty prior post, but hopefully somewhat better developed). This project required a massive amount of attention before---

3) Bar review. The bar exam is at the end of July, and I'm more-or-less hard at work studying.

Reason #3 means that the long neglect is likely to continue to some extent.

Although it's a meager offering, here's something to tide you over- a piece (or links thereto) on a interesting phenomenon I had never heard of previously: Gay Exorcism Rites. (The thought being that demons make people gay.) I say "interesting," but of course I mean "patently ridiculous and embarrassingly superstitious." There's apparently a question as to whether these rites can amount to child abuse and ought to be interfered with by authorities. It's disheartening to see that some public officials may be holding back out of concerns for impinging on religious freedom. This is disheartening because, if in fact the practices amount to abuse (I haven't read the longer piece yet and don't have an opinion on this), any deference to religious sensitivities is misplaced, and certainly unnecessary at least as far as the First Amendment is concerned. The First Amendment is complex and fertile ground for legal and academic disagreement, but I would be extremely surprised to discover any serious scholar who thinks that the First Amendment licenses child abuse.

Felonies for bullying?

2010-04-09T15:28:00.000-07:00

CNN tells the sad story of a Massachusetts teenager who committed suicide as a result of verbal bullying at her school. In reaction, the prosecutor has charged the bullies with felonies.

Slander (including false name-calling-- the bullies called the victim a "slut" and a "whore," and made similar accusatory statements), of course, is not protected speech. But should it give rise to a felony conviction? I am doubtful, even where the effects are grave. I don't have an argument here, only a suspicion that no prosecution would ever have been brought for bullying absent the unpredictable bad effects, and that, had a case been brought in the absence of such effects, the community's sense of condemnation would have been radically different. I doubt that what is driving the sense of outrage and the calls for vengeance (see the comments on the CNN story) is a sense of the intrinsic blameworthiness of the bully's actions. The bullies do deserve blame; they were ruthless and mean. But I suspect that no one would have been calling for a prosecution if the victim had not committed suicide. If I'm right, that means that defendants aren't actually being punished for their conduct or its blameworthiness; they're being punished for the rare and unpredictable effects of their conduct. In a tort case, even, this wouldn't bother me. But it just instinctively seems like a mis-use of the criminal sanction to me.

A description of the facts of the case (in a filing) can be found here.

My Note on SSRN

2010-04-04T00:49:00.001-07:00

A link to my now-published note on SSRN is available here.

A Very Good Week

2010-03-31T20:44:00.001-07:00

It's been a very exciting week here--quite possibly, the best of my life. Three exciting pieces of news:

I'm now officially co-writing a paper on public reason in the philosophy of John Rawls (for my quick take on this, see my prior post). (I'm not going to out the co-author here because, unlike me, he has a reputation to protect and is taking a risk on a project with me outside any area of my special expertise; if I turn out to be a sub-par co-author, I wouldn't want him to be embarrassed by the association.)
My law review Note is finally in print. I'll blog about the Note some other time; the Note takes up the constitutionality of a (hypothetical) mandatory dialogic ethics curriculum as against religious objectors. The article is titled "In Defense of the Constitutionality of Critically Discussing Religion and Ethics in Schools in Light of Free Exercise and Parental Rights." The cite is 70 Ohio St. L.J. 1565 (2009) (volume no. 6). I plan to post a copy on SSRN before long and link to it here.
I was accepted into an LL.M. program at NYU. I was accepted into NYU's pioneering "Legal Theory" program, and, needless to say, I'm absolutely thrilled. I proposed and plan to complete a thesis on the ethics of plea bargaining. Also something I should blog about here at some point.

The downside of all this excitement is that at one point this week I was working on one hour of sleep in 38 hours. (Apologies to anyone who got messages or email from me towards the tail-end of that time.) Still, I'll take it; this has been a pretty exciting seven days.

On Rawls and Why I Think "Public Reasons" Aren't Great

2010-03-24T02:35:00.000-07:00

A friend recommended an essay on some aspects of John Rawls’s political theorizing; unfortunately for me, this is a topic I’ve pretty much only previously encountered in the haphazard manner of someone who’s sort of been around contemporary analytic philosophy for a (very) little while, but hasn’t done anything serious with mainstream political philosophy, except, maybe, take a cursory read of a general introductory text, most of which was immediately forgotten. Fortunately for me, however, the essay itself contained a useful précis of the relevant high-points of Rawls's theory as it related to public discourse in a liberal society. (By “public discourse,” I just mean political discourse devoted to giving reasons and justifications for this or that policy. Rawls thought—correctly, it seems to me—that this sort of discursive practice was highly desirable in any liberal society of equal citizens.) So, from that account: critically, Rawls emphasized the importance—necessity, in his view—of only conducting public discourse in terms of “public reasons.” Without getting technical (since I’m only an inch-and-a-half deep here anyway), a “public reason,” basically, is just a reason or concept that is a) reasonable, and b) (thus?), capable of appealing broadly to different groups of “doctrinally plural” citizens, i.e., citizens with different and incompatible substantive views of the moral or the good, or “comprehensive doctrines” for short.

As best I can tell, Rawls meant to keep fundamental disagreements—disagreements between different “comprehensive doctrines”—from polluting the public square. I use the word ‘polluting’ advisedly here and will expand in a bit, but I think it roughly conveys an intuitive sense of Rawls’s basic worry. In fact, if my loose (second-hand) read is correct, then Rawls’s concern is one which finds expression by many different theorizers and would-be theorizers of political discourse. Think, for example, of the (annoyingly incessant) calls for “bipartisanship”: one tempting way to cast this call, at least some of the time, is as an expression of a hope that people will transcend their particular comprehensive doctrines and articulate “public reasons” of broad appeal, leading to joint action of a sort that eschews splitting fundamental differences in an unprincipled way. As a second, even looser, example: consider the backlash against the New Atheists coming from many quarters. (It’s too late as I write this to provide very particular examples, but I do have Karen Armstrong in mind, although no particular piece of hers.) The New Atheists are attempting to forge a public debate over certain “fundamental” viewpoints and doctrines; against this stand those who viscerally regard this very attempt as the essence of social poison. (Dan Dennett sort-of writes about this reaction in Breaking the Spell.) One can almost imagine the opponents of New Atheism saying, with Rawls: "the New Atheists are mucking up public discourse by dragging “comprehensive doctrines” out into the open and then subjecting those doctrines to hard-nosed concepts like truth, purely “public reason” be damned. Shame on them!"

However, for myself, it is not at all clear that this motivation— to avoid exposing fundamental disagreements in public discourse—is a good one. Such a motivation is explainable in a number of ways, none of them (that I can tell) particularly praiseworthy. Consider, as explanations:

Moral cowardice. This would be the desire to avoid confronting serious moral issues because the confrontation itself may be unpleasant. I admit that this is a real psychologically-basic motivation; but it deserves little respect as an independent matter. After all, sometimes the unpleasant thing is the right thing.

A bare unwillingness to face the hard truth that living together with those who have different fundamental viewpoints will sometimes be unavoidably hard. This is a species of wishful thinking, although understandable enough. We’re social creatures who hope to always get along, and it is unpleasant to face the fact that not-getting-along might be unavoidable after all. Nevertheless, this hope shouldn’t blind us to the alternate possibility (*cough* eventuality *cough*) that living together in society might just sometimes be hard.

An undue skepticism of the possibility of fruitfully treating “fundamental disagreements” in their own terms. It is undoubtedly true that there are viewpoints and perspectives which are incompatible one with another. But, it is also true that people can change their views, and so the fundamentality of “fundamental disagreement” is something less than strict logical necessity in one very relevant sense. (The sense in which people actually have and act on these incompatible views.) This means that there is conceptual room to allow that conversation or confrontation, of some type, under some conditions, could lead to fruitful outcomes in fundamental disagreements. (Define ‘fruitful’ however you like here.) Admittedly, changing minds is hard work; and there are doubtless better and worse ways to conduct conversations involving fundamental disagreements. But these aren’t reasons to eschew the attempt, or, worse, to skeptically insist in advance that the attempt must be hopeless.

The fear that discourse in terms of non-public-reasons will lead to tyranny and imposition of one group by another. The fear of tyranny and imposition just is the fear of the end of liberal society. Such was arguably the fear of John Locke, and I think this fear was evident on Russell Blackford’s part in some recent stuff of his (and you’ll find me arguing over some of that stuff on his blog – it’s too late to find the link, but it’s a few recent posts down). I suspect, again second-hand, that this is probably the basic fear of John Rawls as well; in articulating conditions of truly liberal political discourse, he means to avoid practices which, of their nature, are anti-liberal. But, to the extent that the worry here is not just a more sophisticated version of the skepticism identified in 3) above, why should I think there is any necessary connection between a) offering non-public-reasons and b) tyranny? In fact, where we have in place, and are not afraid of losing, baseline protections against tyrannical imposition (as with Constitutional protections enforced by the Supreme Court), the connection breaks down. And as long as the connection can break down, then why isn't the point simply to make sure, as a matter of particular practice, that it does? (There is no need for grand pronouncements.)

All of that to say, in a roundabout way, that I am skeptical about the necessity (in light of our interest in preserving liberal society) of the “public-reasons-only” rule for political discourse. Certainly, to the extent that any public speaker cares about his immediate rhetorical effectiveness, and making a broad case, he’d be well-advised to appeal to public reasons. But this is just a rhetorical consideration which amounts to something less than a fundamental condition of any truly liberal order.

In fact, however, I think the “public-reasons-only” rule for political discourse carries with it its own particular risks: the risk of not knowing the real reasons, motivations, and viewpoints of one’s fellow citizens. Unless one thinks that real people can purge themselves of their substantive commitments when acting or speaking qua citizen, the sublimation of these commitments does a real disservice. It makes it harder to know what you’re up against, for one thing--and thus whoever you are. It makes it harder to meet the real concerns of your fellow citizens, if you are concerned in that direction. It makes the hard work of democracy--convincing the guy next to you to change his mind--very much more difficult. And in the case of actors with underlying illiberal philosophies who have nevertheless managed to internalize the “public-reasons-only” rule (by being largely silent, no doubt), it probably gives you a somewhat false sense of the security of your liberal state.

Yes, Virginia, the New Health-care Law IS Constitutional

2010-03-23T11:55:00.000-07:00

With the recently passed health-care reform now signed into law, a number of states are suing to block implementation of the statute. Having read neither the bill, nor the filed lawsuits, nor possessing any special expertise in Constitutional law,* I thought I should jump in-

This report from ABC News gives some flavor for the constitutional objection, or one of the main objections, anyway. Under the new law, every financially-able person will be required to purchase health care insurance, or else face a penalty in the form of a tax. Objecting to this scheme, Tim Pawlenty (Republican governor of Minnesota) says-

"[T]his does look like an unprecedented overreach by the federal government forcing indivual citizens to buy a good or a service for no other reason than they happen to be alive or a person. That seems to be unprecedented..."

Off-hand, aside from the question-begging use of the term "overreach," I think Pawlenty is right. I can't recall any other attempt to make people buy a good or service independently of obtaining a license or some other government privilege. The mandate to purchase insurance is unprecedented, as far as I can tell.

But, that being said, I don't see why the lack of precedent should be enough to condemn the scheme on Constitutional grounds. The Constitution grants the federal government the power to regulate commerce, and to tax, and to do anything "necessary and proper" to carry into effect those other powers. These constitutional provisions have long been interpreted broadly; with regard to the Commerce Clause, particularly, the only activity which doesn't fall within its ambit is purely local activity having no significant effects (when aggregated with like activity) on interstate commerce. Whatever might be the outermost limits of Commerce Clause power, the activity in question here, especially when aggregated, surely has massive effects of interstate commerce. (Just think of all of the business and economic activity connected with insurance and medicine.) As such, the regulation of that activity squarely meets constitutional muster, and the courts should reject any invitation to view themselves as the arbiters of just how economic activity ought to be regulated.

Perhaps unfortunately, perhaps not, the fact remains that there just is no general constitutional privilege against being regulated in ways you don't prefer. Faced with an "overreaching" law, otherwise within the constitutional grant of power to the federal government, the remedy is political.

----
* - Except, maybe, with regard to some narrow First Amendment questions.

A National DNA database?

2010-03-15T12:32:00.000-07:00

Would it be an infringement of your interest / right in personal privacy if your DNA was catalogued in a national database which existed for the purpose of solving crimes? (Such a proposal is found here.) Do you fear for your "sensitive genetic information"? (Do you think there is any such thing?)

I'm inclined to think that a national DNA database would not necessarily infringe any privacy rights. Because I don't think anyone really cares about their genetic code as it would be used by law enforcement, I don't see that there is much to object to so long as we are sure that the intended use remains the only use. Basically, DNA for law enforcement functions as a kind of super-fingerprint -- and I take it that nobody considers themselves to have a privacy interest in their fingerprints, no matter how unique.

I could imagine abuse of a DNA database, of course. For example, if the DNA database was used to "out" individuals with genetic conditions which the individuals would rather not have made public, that would be a real harm. Still, this abusive scenario strikes me as unlikely, and, at any rate and in principle at least, careful planning and security measures could prevent this harm.

In which case, I guess I'm inclined to endorse the idea of a national DNA database, especially if there were sufficient security measures in place to prevent misuse. Such a database would probably do some good, while doing little (if any) harm.

minor update on Westboro Baptist case

2010-03-11T20:08:00.000-08:00

As I speculated in the prior post, it appears that Margie Phelps indeed will be the person arguing on behalf of the Westboro Baptists in front of the U.S. Supreme Court. Shirley Phelps, Margie's sister and a church leader, indicated as much in this report. It is unusual, as far as I know, for a hate group to essentially represent itself before the Supreme Court in this way. And Margie is indeed a full-fledged member of her father's sick little cult.

If the brief in opposition to certiorari is any indication, Margie may use the opportunity in front of the Justices for some incidental proselytizing. From that brief:

WBC’s picketing has spanned nearly twenty years, starting in early 1991, and has addressed the morality of this nation and the consequences of proud institutionalized sin, including homosexuality (including same-sex marriage), fornication, adultery (including divorce and remarriage, called adultery by the Lord Jesus Christ), murder (especially of unborn babies), greed, and idolatry.

Let's hope this is not necessarily a sign of things to come; it would be a serious pity for a major First Amendment decision to lack the benefit of first-rate counsel. Although there will be top-notch amicus briefs, no doubt, one would like to be sure of a certain (high) quality of advocacy from the parties themselves.

Westboro Baptist Church Case Goes to the Supreme Court

2010-03-08T14:41:00.001-08:00

Here's a case to watch: the Supreme Court will be hearing the appeal in the suit against the infamous Westboro Baptist Church for tastelessly picketing a soldier's funeral. (The soldier was Matthew Snyder; a jury granted Mr. Snyder's family a multi-million dollar verdict on claims of intentional infliction of emotional distress, and others, before the Fourth Circuit reversed the jury award.) The key question on appeal is whether the Westboro Baptist Church has a First Amendment right to its protest, however tasteless. If they do have such a right, then, one presumes, the Fourth Circuit properly dismissed the case; otherwise, the jury verdict is back.

Interestingly, appellee's attorney in the case is Margie Phelps, daughter of Fred Phelps (Fred Phelps is the leader of the Westboro Baptist Church), and herself apparently a member of the church.

After skimming the appellant's petition for certiorari, my initial judgment is that the Phelps have the better of the First Amendment argument. Of course, a cert petition is not a merits brief, and one would expect that the brief will be better at advocating a substantive position. Still- there are arguments or proto-arguments in the cert. petition worth commenting on, and so, with five minutes reflection and the disclaimer that I AM NOT AN EXPERT HERE BY ANY STRETCH:

The appellants argue that the Westboro protest interfered with their rights to peaceably assembly and exercise their religion (and thus their suit against the protestors was proper). This argument strikes me as a non-starter: there is nothing in the rights of assembly and free exercise, as such, that creates correlative duties in other private individuals not to interfere (and in just any way?). The liberties of assembly and free exercise are enforceable against the government, not private parties. So then the analytically key question is about the extent of the protestors's First Amendment free speech rights, which will need to be addressed in their own terms, and not via proxy in a discussion about other rights. Secondarily, there is the (big) problem of line-drawing: assuming hypothetically that the rights of assembly and free exercise do invest (all?) private others with correlative non-inteference duties, what counts as "interference" for the purpose of delimiting this right? What if the Westboro Baptist Church protestors had just quietly assembled, with no signs? What if they had less offensive signs? What if they held a candlelight vigil? What if they had assembled in support of the soldier but nevertheless caused an interfering traffic jam?

The appellants might have an argument that the protest was conducted in such a disruptive manner so as not to be constitutionally protected for that reason. (But this gets complicated fast; see my third point below.) But even supposing this (and this is an argument that, as presented in the petition, raises the spectre of the "heckler's veto" in my mind), to the extent that the underlying lawsuit was predicated on the offensiveness of the content of the speech, it shouldn't be enough to focus on the time, place, or manner of the speech in this way. That is to say, if 1) the jury verdict possibly encompassed a judgment about the content of the speech--or, more precisely, if the state provides plaintiffs with a cause of action allowing speech content as such to engender liability for reason of its offensiveness--, and if 2) the Westboro protestors have a First Amendment right to say offensive things, then the state has infringed the Westboro protestors's First Amendment rights. (However, I haven't studied the record in this case, and maybe the underlying claims really weren't about the content of the speech, although I would be surprised if that were the case. I doubt very much that the case to the jury was anything along the lines of "and the traffic jam created by the protest caused emotional distress.")

In a similar vein, the appellant's cert petition suggests that the "captive audience" doctrine might apply to render the WBC protestors's speech unprotected. As I vaguely and hazily recall, this doctrine arises from some Supreme Court dicta suggesting the constitutional permissibility of ordinances preventing protests in residential neighborhoods, in light of the heightened privacy interest of residents. The appellants argue that funeral-goers similarly have an expectation of privacy, and, thus, there is no absolute right to First Amendment protest in such situations. The problem with this argument, by my lights, isn't that funeral-goers in fact lack a heightened privacy interest, but that, even if they do have such an interest, that doesn't really get to the point at issue. The "captive audience" doctrine is within the scope of the rule allowing "time, place, manner" restrictions on speech; the captive-audience doctrine simply defines one particular combination of place and manner that makes (otherwise protected) speech regulable. But both the captive-audience doctrine and its "parent" time/place/manner doctrine decline to focus on the content or viewpoint of the speech in question, which, presumptively, remains protected. The "captive audience" doctrine teaches that speech may be regulated as something other than its content. Indeed, from the viewpoint of protecting free speech interests, the beauty of allowing "time, place, manner" restrictions on speech is that such restrictions do not require any official/legal judgment or notice of the content of the speech. By contrast, from every initial indication here, upholding the jury verdict in this case would mean upholding a judgment on the content of speech (and its offensiveness), and not merely its time, place, or manner. I see no reason to doubt that the protest speech here caused distress, outrage, upset, and a deep violation of peace of mind, perhaps to the extent of psychological damage. But the power of the speech to have these effects is in its content (which is why it is key that the Westboro Baptist Church was not simply holding a supporting candlelight vigil). And upholding the jury verdict means punishing the Westboro Baptists for the content of their speech, as that content.

The danger of the Phelps case, to my mind, is that the Court might declare that the offensiveness of speech (at least for very offensive speech) is enough to place it outside the purview of First Amendment protection. Undoubtedly, there would be psychic satisfaction in seeing the Westboro Baptist Church subject to a crippling multi-million dollar judgment, but the constitutional cost could be heavy. If anything in First Amendment law should be clear, it's that offensiveness as such is not enough to remove speech from protection under the First Amendment.

On the other hand, in the case of defamation, speech is sometimes properly punishable in light of its content, given certain effects of that content (and the wrongful harm that content does to the reputational interests of another). Emphasizing this, appellants might say that they seek to punish the speech here for its effects. (This is the reason we punish defamation, or shouting "fire" in a crowded theater.) This argument would be tempting and could work.

The problem with this tack to my mind is that, in the case of defamation or shouting "fire" in a crowded theater, we would never fear that some valuable speech was being chilled; we can be confident in advance that speech answering to those descriptions will never have redeeming value, of any kind. We can't properly have that sort of advance confidence just by knowing that speech has caused emotional distress. (Jefferson's Declaration of Independence caused George III some serious emotional distress.)

Put "Michael v young" in iTunes Store

2010-03-04T08:22:00.001-08:00

Search "Michael v Young" in iTunes store, or click here, to find (one bit of) my music (and album art) on iTunes. (The song is "Sunday Drive.")

A Question of Free Will

2010-02-28T19:51:00.000-08:00

What should we do the morning after the day when a metaphysician finally proves that free will cannot exist given causal determinism?

A question I had after stumbling across this interesting and new (to me) philosophy web site. Basically, the site collects video lectures from newly-minted Ph.D.'s on (presumably) their area of specialty. I watched a lecture on free will this evening- unfortunately, the video cuts out before the end of the lecture, but you get a flavor for some of it.

Religious Intent and Public Law

2010-02-28T19:08:00.000-08:00

Some back-and-forth on the topic of my last post can be found here. There, on one loose description of what is going on, Russell Blackford and I may or may not disagree about the proper liberal response to Stanley Fish's view that religious reasons (and concomitant hopes and intents) ought to influence public debates. I have more or less taken on the unenviable task of defending what I take to be Fish's conclusion-- unenviable because, even on my charitable interpretation, Fish himself only gets the right conclusion for the wrong reason.

Should Religion be Banned from Debate over Public Laws?

2010-02-26T13:45:00.001-08:00

Stanley Fish (or, as I sometimes refer to him, the man with my Times column)* thinks that we should allow explicit appeals to religious values in public debates, such as debates over whether to enact a law or pursue a policy. In other words, Fish does not think that there is anything wrong with explicitly appealing to religious values as reasons to enact a law or pursue a policy. Against Fish stands the accusation that he would legitimate state-imposed religion. The counter-Fish thought is that sanctioning the injection of religious values into the public sphere either just is state-imposed religion or else the very slippery slope thereto.

Here, despite myself, I agree with Fish, although maybe not for the reason he seems to give. Debate should be unconstrained, not because religious values are presumptively the equal of every other kind of value (maybe they aren't), but simply because it is better to have everything out in the open. It is always better if participants in a debate don't sublimate their real values or concerns; only by being open can debate-participants know where they stand in relation to each other and have a chance at addressing each others' concerns in a real way.

I also agree, incidentally, with Fish's critics insofar as I agree that state-imposed religion is worth avoiding. In line with the critic above, I would justly feel myself to be a victim of a sort of tyranny if the law required me to practice a religion or observe edicts which could only be understood as religious.

In case it's not obvious, the two positions here are eminently reconcilable. Only distinguish between a) any citizen or legislator's particular reason for supporting this or that law, and b) the content of that law itself. Let any citizen or legislator have any reason they like for supporting or opposing a law; only don't let the law itself impose religion on me. If my representative wants to outlaw murder because he thinks that God commands it, I will not feel myself to be oppressed by the ensuing law, because I don't think that such a law, as the law it is, amounts to an imposition of religion.

Obviously, there is an interesting question concerning just what makes a law an imposition of religion or not--why would some laws have that character while others would lack it (especially where the law allows of both secular and religious motivating reasons for enactment)? But we do clearly have some rough idea of this distinction, and it has nothing necessarily to do with the motivations of the legislators who enacted the law. A law requiring church attendance would be an imposition of religion even if the legislator's goal was simply to force people to avoid Sunday morning sloth.

(As an aside to legal readers- incidentally- understanding this distinction between intent and content illuminates our understanding of some legal rules. Particularly, rules of Constitutional review which determine a law's legitimacy by assessing legislators's intentions should be seen as using intentions merely as evidence indicating the likelihood that the law itself has a particular character. The intention does not constitute the law as having any character at all; but it may be evidence of that character. This also suggests that it should be possible in principle for a case to hold that a legislature's intentions, however objectionable, are not dispositive of the character of the law.) (For example, consider rules governing cases under the Religion Clauses of the First Amendment, or Dormant Commerce Clause cases. In such cases, legislators's intentions can be dispositive, as, for example, if there was hostility (in the one case) or protectionist impulse (in the other).)

------
* - I say this because, on some topics, I have clearly better opinions than Fish; and, on the rest, I'm pretty sure I've never had a worse opinion. Moreover, Fish has a general unfortunate postmodern bent; I lack any such defect. So, clearly, I'm a better candidate for that column than Fish. And anything you're tempted to say here about serious academic achievement and reputation is frankly besides the point- I'll frankly admit that Fish has got it and I don't. The criterion of a good opinion columnist isn't that the columnist has got credentials, but that he's got good opinions--obviously, a point where I shine.

A mild bugaboo-

2010-02-24T19:54:00.001-08:00

Am I the only person to notice that Nationwide's new "best spokesperson in the world" television commercial generally misses the ordinary business distinction between 'spokesperson' and 'salesperson'? The guy in the commercial is in sales, not media relations.

Call it a small bugaboo.

Is there possibly a moral case for imperialism?

2010-02-18T20:26:00.000-08:00

In the wake of the Haitian earthquake, David Brooks penned a column assessing Haitian poverty and the general failure of foreign aid to mitigate that poverty. Brooks offers a fair amount of reason for general pessimism, but he does attempt to be constructive and prescriptive in the end. Here, one particular suggestion caught my attention:

[I]t’s time to promote locally led paternalism. In this country, we first tried to tackle poverty by throwing money at it, just as we did abroad. Then we tried microcommunity efforts, just as we did abroad. But the programs that really work involve intrusive paternalism.

These programs, like the Harlem Children’s Zone and the No Excuses schools, are led by people who figure they don’t understand all the factors that have contributed to poverty, but they don’t care. They are going to replace parts of the local culture with a highly demanding, highly intensive culture of achievement — involving everything from new child-rearing practices to stricter schools to better job performance.

What interests me about this is that it is basically an open argument for a kind of imperialism. Brooks unapologetically seeks to impose a view of the good on Haitians who, left to determine their own fate, presumably would not embrace the Brooks's recommendations if left to their own devices. ("Presumably" on Brooks's view.) In fact, Brooks himself pretty much recognizes this point, because he uses the word "paternalism" to describe his recommendations. It's a word worth brief reflection; it views the Haitians as wards incapable of mature self-determination, and those running the Brooks-recommended programs as akin to parents. And, of course, parents generally may impose their (just) rules on their children regardless of what their children think.

What's so interesting, you say, about arguing for imperialism of this sort? Well, for one thing, I had sometimes thought that imperialism and paternalism were presumptively disreputable, both as policy recommendations and as the things they are intrinsically. So, first, it was surprising to find such a recommendation made with a straight face in the Times, even if made by the resident conservative opinion columnist. Secondly, even more suprising and interesting from my perspective is that I'm not sure that Brooks's prescription is necessarily wrong qua applied ethical theorizing.

On this last point: leave aside the issues of fact--about which I'm no expert--and assume for the sake of argument that Haiti is as Brooks describes: culturally backward and incapable at the present moment of solving its own pressing problems, or of meeting its own needs (social, economic, governmental, and whatever else). Now, if that were the case, and if some particular paternalistic program of intervention could mitigate this circumstance, doesn't that provide a fairly strong reason to actually do that intervention? And, potentially, to do it imperialistically--i.e., regardless of Haitian resistance?

Let's tighten the hypo a little further: suppose that some particular paternalistic program of imperialistic intervention was, practically speaking, the only way to improve a backward nation. (Liberia as a candidate?) Would an intervention then necessarily violate the rights of that nation, or its people, in the event that they objected? Here, I confess to conflicting intuitions. But it is an interesting question.

Transcultural Moral Judgment

2010-02-18T19:48:00.000-08:00

It may be that you suffer from a common and unfortunate aversion to transcultural ethical judging-- that is, to ethically judging or appraising aspects of (foreign?) culture as such. Maybe you think that ethical appraisals of culture can't make sense because you think (as a matter of theory) that ethical judgment is itself necessarily bound up with culture; or maybe the point is not your theoretical commitments, but simply your fear that this sort of judging will necessarily be insensitive to the legitimate concerns and perspectives of other cultures. On this view, avoiding transcultural moral evaluation is key to avoiding a sort of hegemonic ethnocentrism.

Of course, you can tell that I think that this position is mistaken, and that there are no good reasons to be either agnostic or skeptical with regard to transcultural moral judgment. Generally, I think people ought to take their own ethical judgments seriously, even when the object of such judgment is their own or another culture, or aspects thereof; the problem with ethical skepticism or agnosticim (of whatever kind) is that it fails to seriously and soberly regard our own ethical judgment, or seriously enough.

Rather than preach myself, though, I instead mean to recommend what I consider to be a classic essay on this topic, an essay which should provide the therapy (and arguments) needed- Trying Out One's New Sword by Mary Midgley. So click!- and read! and take courage!

An open letter, and a bit on criminal defense ethics

2010-02-13T21:50:00.001-08:00

Dear Blog,

I know I've been neglectful, and I know you've taken it kind of hard. But please understand that I didn't mean to hurt you. It's just that I've been caught in the maw of the Law School Beast, studying and studying with nary a day off. And then, of course, there was the Great Break In, a little occurrence which saw my apartment burgled, and then a subsequent hunt and move to a replacement apartment, with all of the headache that entails. (Fortunately, there were friends to help; and you really should have seen the Great Couch Episode--but that is fodder for another time.) And then there's always more or less focused Job Hunting. (Mostly less, but hey, it's early, and, anyways, a career as a hobo could be manageable, even if it involved learning to play guitar and drink corn liquor.)

All of this to say: it's not you, and it's not me; it's just the circumstance. You know I still love you, and I know you still love me. If we're apart now, it won't be for long.

And, to tide you over until I can post something proper, there is this little blurb, a hasty comment on a law blog about the ethics of criminal defense.

Yours,
Michael

To Josh: Zygotes are 'rational moral agents'? Really?

2010-01-20T14:05:00.000-08:00

[The following post is a reply meant for the comments on this prior post, in which Josh Brahm, pro-life activist, attempts to argue for the idea in the subject line, among other things. After the internet ate up my original short and sweet reply, I wrote a much longer one and decided to post it here, for Josh and anyone else who cares.]

“I agree that typically speaking, people think of levels of consciousness as connected with personhood, but I think that’s an incorrect view.”

I think you’ve missed a really fundamental point: it’s not simply that some people have a theory of personhood in which consciousness figures, which you are free to disregard as you choose. It’s rather that the very meaning of ‘person’ connects with consciousness or capacity therefore, or, if you like, with rational moral agency. If this, or something like it, isn’t what you mean when using the word ‘person,’ then you would do well to either stipulate what you do mean (here, "a kind of thing" would not do), or use another word; otherwise, it would look as if you were attempting to introduce and then trade on an ambiguity. (That is, you recognize that the ordinary concept of ‘person’ carries moral heft; you decide to use that word for a concept altogether different from the ordinary concept; and you expect the ordinary felt moral heft of the ordinary concept of ‘person’ to “carry over” to the new concept in its application, or at least for it not to be noticed that the question of the moral weight of the new concept is now likely to be an open question.)

If we do take person to mean “rational moral agents,” all the basic problems I outlined in the prior comment remain: this description simply does not apply to zygotes, even if 1) we think that zygotes are a separate kind of substance, or 2) we are left with morally difficult cases, or 3) it is difficult to precisely analyze the concept in just any way that might be demanded. There is no reason to say that zygotes are rational moral agents, and lots of reason to say that they aren’t: zygotes don’t act or have the capacity for action (so they’re not agents); zygotes don’t behave or have the capacity to behave in any way that supports moral description; and, if a zygote exemplifies your idea of rationality, well, this conversation wouldn't be happening at all. Certainly, zygotes are potential rational moral agents, slightly closer (in some sense) to personhood than the DNA you wantonly discard when cutting your hair or scratching your nose. But none of that, we should agree, argues in favor of the pro-life position (or against scratching your nose or cutting your hair).

I understand that you are concerned that the denial of a proposition like “all humans are persons” would entail morally impermissible results, like infanticide, or failure to care appropriately for comatose patients. About this: 1) as far as the particular narrow question is concerned, so what if morally impermissible results are entailed?--that doesn’t show the truth or falsity of the proposition in question; 2) there might be other reasons, not having to do with personhood, that would get you the moral results you want in the cases you cite (so it’s not clear that you would have to pay the moral costs you anyway suppose); 3) as an incidental aside since it doesn't matter for the main argument, at least in the comatose case, it might be that the patient is a person, for all she is comatose; if there is something in the meaning of 'person' that rules it out, I don’t see what it is—the patient can certainly be thought of (in a way a zygote can’t) as having capacities for a certain (high) level of consciousness.

What else? 1) I agree that persons are valuable as the very things they are. I think that was why or partly why I said that ‘person’ (in the ordinary sense) was a value concept in the first place—-because it necessarily picks out something of value. 2) The difficulty of saying in advance just how much consciousness (or capacity for consciousness) personhood demands doesn’t show much of anything, least of all that personhood is a concept divorced from consciousness in the way I indicated. There are plenty of concepts for which it is notoriously difficult to give exhaustive necessary and sufficient conditions (knowledge and heap are two examples from philosophy that spring immediately to mind), but that fortunately doesn’t rob the concepts of their meaning or indicate that there concepts pick no things out in the world, nor does it indicate that the concept does not individuate a kind of thing. So I am agreed that ‘person’ picks out a kind of thing; and one of the things I meant when denying personhood to the zygote was that zygotes are different kinds of things than I or you.

So I think what remains here is your (weird, obviously mistaken) professed judgment that zygotes literally are rational moral agents, and hence, persons. The substance theory of persons does not lessen the strangeness of this judgment, even if the theory is true: as a defense of this judgment, it amounts to pounding the table and saying the word "is" loudly. ("The zygote just IS a person"-- and then in a whisper, "even if it has never shown any capacity which that concept necessarily picks out, like rationality or agency.")

A weird idea from the New Republic

2010-01-14T18:20:00.001-08:00

The New Republic reviews a book on bioethics, and, although the review overall doesn't seem so bad (not having read the book myself), the reviewer unfortunately attempts a little casual moral skepticism:

For most of us, the very idea of “right” answers to complex moral and philosophical dilemmas such as euthanasia, embryonic stem cell cloning, or organ remuneration is absurd on its face. After all, deriving an “answer” depends upon which type of moral theory one favors.

It is one thing to be a moral skeptic, but the reason for skepticism offered here is just deeply weird--as if there is something about having or favoring a particular moral theory which necessarily renders moral judgments illegitimate. Why in the world would that be? It's an odd idea.

And, incidentally, as concerns the relevance of moral theory to particular moral judgment, it might be worth pointing out that serious ethicists/moral philosophers can agree on quite a lot of particular cases despite differing moral theories. For example, a wide-ranging debate/discussion between Michael Sandel and Peter Singer, two very differently oriented moral philosophers, didn't uncover a single disagreement about the preferrability or dispreferability of any particular example action, as I recall. (Although there were disagreements about the strength of the preference or the reason to prefer or disprefer.)

There is a serious question about direction of fit, here, though. Should ethical theories fit particular moral judgments, or should moral judgments fit particular ethical theories? In other words, does theory really determine judgment in the way that the writer supposes? My short answer is that the ethical theory should fit the ethical judgment (in much the same way that a scientific theory should fit the empirical data), with the caveat that where a (serious) theory calls the judgment into question, that judgment ought to be analyzed and reflected upon. It may be, as well, that an occasional anomalous judgment will not call a successful theory into question. Ultimately, however, we can't escape our ethical judgments; in fact, this is just what makes ethical theorizing so hard: no theory will be any good unless it consistently "captures" our particular ethical judgments across a wide variety of cases.

Of course, we might say that a theory is "prescriptive" and not "descriptive," but a prescriptive theory's felt authority depends first on its being seen to have descriptively captured lots of our particular moral judgments.

The Moral Relevance of the Fact that a Fetus is a Living Human

2010-01-13T13:00:00.000-08:00

I was forwarded a link to a small grenade in the wider abortion debates, this one from the pro-life side, although it highlights a confusion which cuts across both sides of the debate. It seems there are pro-choicers who argue that pre-abortion fetuses are not living humans. Which, as the above pro-lifer correctly pointed out, is simply wrong as a matter of what is ordinarily meant by the biological concepts of 'human' and 'living.' Clearly pre-abortion fetuses are living humans.

The confusion here which cuts across both sides of the debate is in thinking that any of this matters very much with respect to the ethics of abortion. It doesn't. The concepts 'human' and 'life' are simply biological concepts, not value concepts capable of doing any interesting moral work. What makes particular humans special, to the degree that any are, is that they bear morally relevant qualities like rationality and personhood--not that they have a particular DNA sequence locating them within a particular species on the tree of life. And obviously, rationality and personhood are value-concepts: any creature with qualities of personhood and rationality is special, because personhood and rationality are special and valuable.

I suspect that theistic pro-lifers who (wrongfully) insist that 'human' is a value concept are just trying to hide their real, deeper commitments, which is the view that all humans possess things called souls, and that souls are necessarily valuable. And pro-choicers who insist that pre-abortion fetuses are not human are just mistakenly buying into the assumption that 'human' is a value concept.

Since I'm on the topic and on a roll, a couple other things about the abortion debate:

If abortion is a practice standing in need of some justification, that justification simply can't be that abortion results from some choice. We need to think that the choice was the right choice, and what makes a choice the right choice will have to do with considerations beyond the bare fact of its being a choice. In fact, most pro-choicers have these sorts of considerations in mind, considerations like the mother's quality of life, the mother's health, the likely quality of the child's life if born, etc., etc. So, while the "pro-choice" label has its rhetorical uses, it doesn't do much to illuminate the core ethics of the situation, if there are any such ethics.

This raises perhaps the most basic question of all: is abortion a practice standing in need of some special justification for reason of what it does to the fetus? If the fetus represents nothing of value whatsoever, then we shouldn't think that abortion even requires a justification. I don't think it's entirely implausible to deny any value to the fetus, as such (as opposed to its value as an imagined part of an existing family, it's being wanted or desired, etc.); it's certainly hard to identify what that value, if anything, could possibly be (particularly if you are going to deny the existence and/or value of souls).

However, in fact, and not for any identifiable theoretical reason, I do think that abortion is a practice standing in need of some justification; we don't celebrate abortion, and I don't think many women feel completely indifferent about abortion (although some of that lack of indifference could come from wrongful social guilt-conditioning). Moreover, if I found that a woman aborted her fetus solely because the fetus would, if born, have grown up to be a freckled red-head, or of the 'wrong' gender, I think I (and most readers) would definitely think a little worse of that person. This then makes me think that there is something there of value. (Although, fair to say, a something-I-know-not-what.)

(On the other hand, perhaps my intuitions here can be accounted for alternatively; perhaps what I really object to in the abortion-for-reason-of-red-headedness case is the mother's thought that there is something to be preferred about not being a red-head; this displays a certain shallowness which is objectionable for its own sake.)

However, I think this is mostly consistent with the view that abortion could be justified given some consideration or reason, however weak. "Wrong hair color" and "wrong gender" simply seem like mistaken reasons. Given a "real" reason, like the mother's health, or the child's likely quality of life, or the inability of the mother to care for the child, or the inconvenience (and risk) of pregnancy, I don't find myself with any clear sense of moral objection. And sometimes I feel that abortion represents a positive moral requirement: a pregnant 9-year-old victim of incestuous rape positively ought to get an abortion by all means, and it's a moral embarrasment for any ethical theory to say that abortion in such a context is wrong.

And, lastly, all of the above question can be separated in some degree from the question of what legal policy we ought to have with respect to abortion. Even if abortion requires some reason to be moral, it may be worth assuming that most women electing abortion will have such a reason, or that it wouldn't be worth the trouble in checking that they do.

How to be a Western-style Lefty Cultural Relativist

2010-01-12T20:09:00.000-08:00

I am something of an NPR junkie, by reason of their willingness to cover news, issues, and culture in a more-or-less intelligent and in-depth way. Still, occasionally NPR becomes infuriatingly soft-headed. Like today. I don't recall the program, but it was about the need to avoid the hegemony of Western medical science in the field of psychiatry: the suggestion was that its principles are or can be wrong for other cultures. Accompanying this was a fair amount of insistence on the equal value of all cultural perspectives, and the (somewhat inconsistent) insistence that us Westerners have a lot to learn from other cultures.

So, just to be clear: I have no special knowledge of psychiatry but am willing to assume, pace Tom Cruise, that it has a legitimate place in legitimate medicine. (Or not, as may be appropriate.) I have no opposition to cultural sensitivity. I think doctors generally should be aware of the unique characteristics of their patients's conditions, including culturally-derived characteristics, where those conditions are relevant to treatment.

But listening to the NPR program, the guests and callers insisted on more than this, and the seeping cultural relativism made me realize the essential maxim of a certain sort of Western-style lefty. It can be summed up nicely in a sentence:

"All cultures have equal value, except mine, which is less equal in any way that matters."

Appearing as a paragon of admirable sensitivity and restraint, the contained idea is both self-contradictory and masochistic. And also stupid; to take the the example at hand, if psychiatry has any generally valid principles, then its principles are valid everywhere; and if psychiatry lacks generally valid principles, then it deserves suspicion here as much as anywhere. Anything else is selling somebody short, it seems to me. Either us hegemonic Westerners will be contenting ourselves with a second-rate science, or those noble foreigners won't be getting the full benefit of our first-rate science. And there is the cost of cultural relativism: it always sanctifies some culture's losing-out on real progress of one sort or another.

The Value of Equality

2010-01-09T19:31:00.000-08:00

A couple things have me contemplating the place of 'equality' as a value. First is a call for the elimination of private schools on the ground that it perpetuates inequality (especially when you are talking about the most elite private schools). Second, in my Wills class I am reading legal scholars who propose disallowing great wealth from being inherited or gifted, since this perpetuates inequality between the lucky few recipients and the rest of us poor schmucks.

My initial instinct in both cases is that, while there is nothing wrong about the appeal to equality as a value, something has gone wrong here in the implicit way equality is being conceptualized by these proposals. In particular, I read these proposals as aiming to achieve equality by making someone worse off without necessarily making someone else better off, and that seems like an expression of a really bad moral principle. You may be sick and I healthy, and thus we are unequal with respect to a good (health); if I am made sick, then we will be equal with respect to that good (neither of us will have it); but it seems to me a mistake to say that this gives any reason, even a very weak one, to make me sick. Now, maybe if my being sick would achieve some independent good (like making you healthy), then we might have a (weak) reason to make me sick; but not otherwise.

I could be wrong that the proposers actually were reasoning in this way; maybe they do have the idea of redirecting resources in a way that increases the total good, and wouldn't have made their proposals without this idea. Let's hope so. But it would still be worth explaining what is wrong with the accused view, both for the sake of clarity, and so that, when somebody does reason in the accused way, we will be able to explain their mistake.

Explaining equality is actually pretty hard. What makes equality itself valuable? Why should we value equality in the way we do? What is that way anyway? For that matter, what is equality? A rule for distributing goods? If so, how could equality then itself be a good? Is there something about equality that makes human lives go better? I haven't thought much about this, but I'd like to take a stab here at puzzling out loud-

First, to articulate an equality principle which should get everyone on board: all things being equal, we ought to prefer that goods be distributed equally among everyone. (Let's just call this the equality principle.) I mean 'goods' broadly: wealth, opportunity, health, intelligence, friendship, beauty, 2.5 kids -- in short, whatever stuff it is that makes a human life go well is a 'good.' If we imagined that the gods controlled a single fixed stock of all goods, if we imagined that nobody had any prior right to any part of that stock, and if we asked what the gods should do with this stock, the answer would be that they ought to just distribute those goods equally among everyone where there would be no greater good lost. The "no greater good" lost is an important caveat, but it is intuitive: for example, we probably want the gods to occasionally bestow disproportionate special genius on some people who will use that genius for the greater benefit of all; losing the occasional special genius could be a loss of the greater good.

Of course, for many of these goods, absolute equality is unlikely to ever actually be achieved anytime soon, nor should we particularly aim for it. Beauty, for example, is unevenly distributed as a matter of basic biology, but given the high cost of systemic tinkering with basic biology to ensure equality of beauty among humans, we do and should (for the time being) accept some disproportional distribution of beauty. Of course, this intuition is captured by the "all things being equal" provision of the equality principle: that provision means that we're not obligated to pay any cost to achieve equality. Another example: private property engenders inequality of wealth, but as economic thinkers have long recognized, it also has good consequences by incentivizing people to efficiently provide goods and services to others. So then there's some reason to allow some inequality of wealth. (If we adopt a rights-based conception of property, there might be other reasons as well.) So, by itself, the equality principle probably doesn't require that we abolish private property.

The equality principle is a rule for the distribution of goods, but is not itself a good as that concept has been stipulated. Having goods is what makes a life go better, not distribution itself. So, in preferring equality, we don't prefer it because it is a good in the specified sense, but for some other reason.

This is actually really puzzling. If equality itself doesn't necessarily make particular human lives better, then why value it intrinsically? Maybe the fuss about 'equality' is just an attempt to get at something else-- solidarity, for instance. We imagine that if goods were distributed equally, then people would have a greater feeling of solidarity with each other; and this feeling is really what we want. Or maybe the demand for equality is just meant to ensure that unlucky or poor people have some minimum level of goods; maybe if this minimal level were met, we would not care so much about remaining disparity.

The cost of either of these accounts is that, if adopted, we'll lose any sense of equality's intrinsic value, although it will retain instrumental value. And, depending on your intuitions, that may really seem like a cost; you may still think that equality is valuable for its own sake, even though it doesn't necessarily make particular human lives go better. (Also, the equality principle would need to be modified to something like: "Pursue equality unless its goal has already been achieved, and only if the pursuit of equality does not cost too much in light of the value of that goal.")

The only other option I see by way of preserving the intuition of the intrinsic value of equality is that, when viewing all of humanity as a whole, we simply find that the picture of humankind with sufficient goods equally shared is a particularly beautiful picture. If so, then might be all the reason we need to prefer equality, and in an intrinsic way.

Also, the dual-aspect nature of the particularly beautiful picture explains why we have the intuitions we do about my sickness hypo: to make a healthy person sick deprives someone of a good without leaving them "sufficient goods" for their life to go well. On the other hand, we would not necessarily feel bad about depriving a rich person of some of their money if the rich person retained sufficient goods for his happiness, and the act made the world more equal by boosting another (poorer) person's position.

Of course, achieving the beautiful picture isn't everything; we want it achieved in the right way, so that, for example, rights or rules of substantive justice aren't violated in the process. Also, it would probably be the "wrong way" to achieve the picture by destroying goods. Goods are valuable, and to destroy or disprefer something of value is perverse. Given a choice between a two-person world in which there are 100 total units of good divided equally (50 units per person), and a two-person world in which there are 110 total units of good divided unequally (60 units for one person, 50 for the other), which world ought we prefer? I think the latter.

[End of ruminating.]

Song of the Week: Ohio Summers

2010-01-09T16:40:00.000-08:00

As a way of combatting the general gloom that settles on these parts around this time of year, I offer a campfire song written with Elijah Blower that celebrates the summer:

Download here.

A Response to M.E. on Nature and Moral Reasons

2010-01-08T00:34:00.000-08:00

(This reply was too long to post in the comments on the previous thread, so, since I run this blog, I'm putting it here instead. New readers should read the prior post to get oriented.)

Thanks for the very thoughtful post! I had a couple thoughts, more or less unordered:

1) It may be that those who condemn homosexuality are appealing to some principle with which you disagree. It may be that those who condemn homosexuality are appealing to some principle or concept which they cannot explicate very well. But neither of these facts, if facts, are themselves general reasons that show that the principles or concepts involved are necessarily illegitimate. So if this is all we have by way of resources to wield against the gay opponents, then our skepticism ought to be weakened- maybe to something like (pretending to talk to an opponent now): "I don't quite understand how your proposed account works. Can you help me?" or "I fail to see or understand the reason you've purported to give me." Not "Your judgment is necessarily illegitimate."

2) However, I read you to actually mount a substantive argument. To hastily schematize your main argument, it would go something like this:

a) There is an is / ought gap, such that all concepts must fall (or have separable sub-parts which fall) on one or the other side of this gap.
b) If the concept of 'nature' falls on the descriptive / is side of the gap, then it (or those relevant sub-parts of the concept) can't prescribe / have any proper place in prescription (on pain of confusing the is/ought distinction).
c) If the concept of 'nature' falls on the 'ought' side of the is / ought gap, then the appeal to 'nature' as a reason is simply question-begging.

So, two questions arise here- first, what should we think about the status of the supposed is / ought gap? and second, what should we think about the question-beggingness of the appeal to 'nature'?

On the second question first, assuming your position for the moment on the is/ought gap, I wonder if you haven't actually unintentionally mounted an argument that, if successful, cuts against a whole heck of a lot of purportedly moral concepts. At first blush, it seems to me that a parallel argument to the above could be run for the concept of 'justice,' say, or 'equality' or 'rights' -- all concepts which figure in ordinary moral reasoning. If I've understood your argument and if it's sound, then to the extent that any of these concepts describe, they cannot prescribe, and to the extent that they prescribe, they beg the normative question at issue in a way that renders the judgment illegitimate. If I'm right, then unless you mean to be a global skeptic about all our moral concepts, you'll want to think that something has gone wrong with the argument.

I suppose one way out is to say that moral principles do beg moral questions when applied in some context(if they're any good as real moral principles, how could they not? of course any decent principle will cut some ice and pressure us to go one way at the expense of another way) -- and that this does not necessarily illegitimate the principles or judgments involved. I'd rather not now attempt a philosophical account of how this could possibly work without generating theoretical internal contradiction; but we had better hope it could work, because it looks like any principle or moral concept is bound, in application, to beg some prescriptive question. But maybe you mean that there is something specially question-begging about the appeal to 'nature' as a moral concept that critically distinguishes it from the question-beggingness of other moral concepts or principles when applied. But what would that be?

On the is / ought gap- I don't think this is a hard distinction. There are concepts which seem to be mixed concepts in that they have both descriptive and normative aspects which can't be disentangled. Take the concept of "need." Empirical facts clearly have to do with identifying anything as a 'need'-- when we say I "need" to respirate, we pick out something in the world revealed by experience. But we also, at one and the same time, by making such an ascription, represent a reason for certain kinds of actions / which can guide ethical judgments. It would be wrong for you to deprive me of oxygen because of my need to respirate. True, to say it is a 'need' begs the question that I ought to respirate as against the position that I ought not. But it's clearly the right judgment for all that!

So, anyway, I do believe there can be mixed concepts that "bridge" the is-ought gap, and when I refer to the normative sense of 'nature,' in fact I mean such a mixed concept.

3) To say there is nothing that could be unnatural is just to say that 'natural' is meaningless-- a concept without an opposite, which individuates and picks out nothing particular. But this seems wrong. Maybe it is that we have a hard time explicating what we mean by 'nature' in the relevant sense; but so what? It's not easy to explicate (in a philosophical way) what we generally mean by 'justice' or 'rights' or 'equality' or 'need' either. That doesn't make those concepts necessarily illegitimate.

I agree that there is one negative thing we can say about the relevant normative concept of 'natural' (assuming with me arguendo that there is such a concept)- the concept clearly is not "whatever happens in virtue of biology." My three-armed baby is a biological happening, but it is unnatural for babies to have three arms.

4) Speaking of, what did you think of my three-armed baby example? Assuming that like me you praise and blame the parents for making one choice or another in the hypo, or given that you think there is an objectively right choice to be made, what is the reason or principle which grounds or explains the judgment? A sense of what is 'natural' seems like a good candidate to me. We have a sense of the way children should be, by nature, and it is this sense which guides the sort of judgments and actions we would have and recommend in the hypo.

A Raging Debate on Nature and Morality

2010-01-07T12:33:00.000-08:00

For those who care and keep track of these things, I am engaged in an online debate over at the Philosopher's Playground regarding the idea of nature in moral reasoning. Actually, I think I'm now entrenched in 2 or 3 related simultaneous debates. The two threads are here and here.

The issue isn't merely academic. There are people who oppose homosexuality (as such) and gay marriage (as an expression of homosexuality) on the ground that it is "unnatural." From one perspective (including mine), it would be good to be able to come up with some conclusive objection to this sort of opposition. This motivates a philosophical project to show that any appeal to "nature" in moral reasoning is necessarily illegitimate: if the concept itself is necessarily illegitimate, then the anti-gays may confidently be dismissed. The problem, however, is that that philosophical project--the project of justifying strong skepticism of the idea of nature as possibly having a proper place in moral reasoning--fails in philosophical terms. (For my arguments about this, see the above threads.) There are / could be (more or less uncontroversial) cases in which we legitimately seem to appeal to an idea of nature as a reason for action. (Again, see threads.) Given this, and given that we take our ethical judgments in these cases seriously, it seems wrong (or simply dogmatic, at least) to insist that there can be no normative, action-guiding concept of 'nature.'

Insults: A Users' Guide- and a bit on Sam Harris, Karen Armstrong, and religion

2010-01-05T15:35:00.000-08:00

Like skepticism, insulting is easy to do poorly and difficult to do well. And, worse, done poorly, insulting is more than just obnoxious- it's positively hurtful-- to others, to yourself, to the ideas (if any) at stake. In short, insulting is a dangerous tool to be used carefully.

Nevertheless, there are conditions under which insulting might be appropriate. So if you are daring and might venture to insult, here are the basic rules you ought to follow, the necessary conditions to appropriate insulting:

The usual key for successful insulting is to aim at the bad idea, and not the person. The other key is to reserve insults for those rare times when you have something important to say and need the special sort of rhetorical punch insulting provides. The other other key is that insulting should always be public (if conveyed in a purely private conversation, it's probably improperly personal). And also, it shouldn't be done by anyone ever under the age of 25. You can't do it right until you're closer to thirty than twenty; and, truth be told, even that is probably pushing it. And you should always mean something substantive with the insults; it needs to have a point beyond the insulting itself, which is just a rhetorical tool or device. Finally, insulting is best reserved as a response to some unusually bad idea or viewpoint-- bad enough as to be or nearly be disreputable for decent, honest, accountable discourse.

For an example of insulting done well, I admiringly point you to Sam Harris's response to Karen Armstrong's recent essay in Foreign Policy. If you read this and think that Sam Harris is simply being spiteful or mean to a nice person like Karen Armstrong (as does Karen Armstrong), then you've failed to grasp the key point, which is an important one. Summed up, the point is this: it is all well and good to insist that there are benign forms of religion (as does Karen Armstrong), and perhaps even to insist that "true" religion is necessarily benign (as does Karen Armstrong). But this insistence should not encompass blindness towards the uglier and nastier forms of religion, about which some response other than 'don't antagonize fundamentalists so much' is required (as offers Karen Armstrong). Maybe it's concerning that Sam Harris doesn't see the pretty side of religion (if indeed that's the case); but it's more concerning that Karen Armstrong doesn't see the ugly side, since that is the socially urgent side. Harris's letter, because it is insulting, makes this point rather forcefully, and it is a point needing to be forcefully made. So, I say to Sam Harris- kudos for insulting done well.

Finally, one last warning or caveat: if you do ironic insulting (i.e., sarcasm), you should be aware that there is a certain proportion of the population that is congenitally irony-deficient. This says nothing about the intelligence of those people; I've known brilliant people who just can't get irony. But you've got to keep this risk in mind- if you insult ironically, it is certain that you will be seen by some portion of your audience as an ass. They might be wrong, but there it is. Sam Harris, of course, doesn't care at this point- he's not out to make friends with those who are incapable of understanding his point. But you may not be so oriented, so beware!

How to be Skeptical

2010-01-01T17:24:00.001-08:00

In the vein of general advice to the world, I offer here some thoughts on how to be a skeptic. Being skeptical is the sort of thing most people naturally do badly, but which they could do well with just a little guidance. So, this post offers the needed guidance.

So, let’s say you want to be a skeptic; that is, suppose that in some conversation, you want to strike a skeptical pose. Maybe you want to be a skeptic about the professed goodwill of some politician you don’t like, or maybe you want to be a skeptic about the possibility of objective morality, or maybe you want to be a skeptic about the existence of the external world, or about the existence of a benevolent deity, or about the well-reasoned-ness of some legal case. It doesn’t much matter just what you want to be a skeptic about; whatever the subject, in any conversation, you have the right to skepticism.

However, you should know that there are better and worse ways of being a skeptic. Moreover, screwing this up makes the difference between being an interesting thinker and a freshman ass, so it is important to get things right. So here are a few tips worth following to improve your skepticism:

Be motivated- You should understand your rhetorical reason (your reason as a participant in a conversation) for assuming the skeptical pose. Are you aiming to disagree with a substantive thesis of your interlocutor? Are you aiming to encourage your interlocutor to look at things a certain (different) way? Are you merely assuming a skeptical pose for the sake of a larger argument?

As an example of this last, Rene Descartes kicks off his famous Meditations by assuming global external-world skepticism; Descartes’s philosophical aim was to overcome this initially-presumed skepticism and thereby reveal something about our general epistemic position. Descartes’s skepticism was motivated in a clear way as a methodological tool, and it is this fact which helps keep the Meditations from being the equivalent of a dopey latenight bull-session. (“Hey man, what if everything were a dream? I mean, like, how would we even know?”)

Have a reason.- Where you aren’t assuming skepticism for the sake of argument—-that is, where you mean your skepticism seriously—-it helps to have a reason for the skeptical position. This requires some minimal self-reflection on your part: you should ask yourself why you think ___ is false. If you don’t have any reason for your skepticism, or don’t have any rough idea of your reason, you can’t very well expect your interlocutor to respect your skepticism. Skepticism without reason is often the death of any interesting conversation, because, from the point of view of the other participants, you have declared your disagreement without actually offering anything to which they can respond. And you don’t want to be known as the killer of interesting conversation.

Be proud or humble in proportion to the strength of your reason for skepticism. You may have a better or worse reason for being skeptical. Your rhetorical confidence should be calibrated in some way to this strength or weakness. For example, a key marker of the freshman ass is to offer unmotivated skepticism without reason, and then to take himself, confidently, to have knocked down some opposing position. In reality, unreasoned skepticism is simply boring, and no kind of argument at all; anyone can question a premise in an unmotivated way without reason. It may be, of course, that you find yourself in disagreement with your interlocutor without clearly being able to articulate your reason—maybe you think their position has some weirdness about it, but you’re not sure of more than that. This is a weak sort of reason to be a skeptic; it’s fine to be a skeptic here, but be a bit humble about it: offer that you think there is some weirdness in the opposing position, but you are not sure what, exactly. On the other hand, if you have an absolute knock-out argument against the proposition to which you are skeptically opposed, you may, in your own good discretion, assume the rhetorical cock-strut.

(Incidentally, if this were an advanced course in Being Skeptical, there would be some discussion of the way in which reasons about general epistemic presumptions can count as reasons for being skeptical of some particular proposition. But this isn’t that advanced course.)

Incidentally, it is the thought of a failure of “fit” between rhetorical confidence and reason to be skeptical which accounts for some of the hostility (from some quarters) towards so-called “new atheists” (skeptics about the existence of God) like Richard Dawkins, Sam Harris, and Dan Dennett. The critics of the new atheists think that the new atheists’s confidence outstrips the strength of their reasons for their particular skepticism. (The aptness of this criticism is outside the scope of this posting; the point here is to illuminate something about the rhetorical situation.)

With those tips in mind, you can be an intellectually productive and interesting skeptic. Happy New Year!

Song of the Week: Sunday Drive

2010-01-01T14:57:00.000-08:00

This (bi-)week, I offer a ballad called "Sunday Drive." It's got guitar, some wind instruments, it's pleasant, and it's probably among my best work (may or may not be saying much)- so, listen! Produced a couple weeks ago.

Download here.

The Blackwater Guards's Case, Conspiracies, and the Fifth Amendment

2010-01-01T10:25:00.000-08:00

The Washington Post reports on the judicial dismissal of charges against the Blackwater guards who had been involved in the killing of 14 Iraqis in 2007. To properly understand this dismissal, it helps to know something about what I call the other side of the Fifth Amendment.

As most people know, the Fifth Amendment protects a defendant from being compelled to testify against himself, as by being compelled to confess to his own criminal acts. In this way, the Fifth Amendment prevents direct use of compelled, self-incriminating testimony to convict a person. Less popularly well known, however, the Fifth Amendment also prevents prosecutors from making derivative use of protected testimony. Say you make an immunized statement to prosecutors which leads to the discovery of interesting evidence against you-- perhaps you provide prosecutors with a contact who then tells the prosecutors where all the bodies are buried. Suppose further that, but for your initial immunized statement, the prosecution would not have made the critical contact (or otherwise discovered where the bodies are buried). In that case, the prohibition against derivative use of protected testimony means that the prosecution can't use the physical evidence (namely, the bodies) against you. The Fifth Amendment prevents you from being a compulsory essential link in the chain of your own conviction in that (derivative) way.

The rule against derivative use of protected testimony certainly makes life harder for prosecutors; prosecutors must be able to conduct their investigation and prove their case without making any--direct or indirect--critical use of such testimony. And to determine whether prosecutors have improperly made such use of protected testimony, courts will hold so-called "Kastigar" hearings (named after the case which made such hearings necessary).

The court in the Blackwater guards's case held such a Kastigar hearing--three weeks of it--and found the prosecution wanting. The guards had all made early statements to State department investigators, and were compelled to cooperate with those investigators under threat of losing their job. Critically, because compelled, these statements were protected testimony. Also critically, the judge found that these statements were essential to the prosecution's case. As such, the court's hands were tied: it had to dismiss the case.

Now, to debunk some of the conspiracy-mongering evident in the comments on the online Washington Post story. Contrary to various commenters, this is not necessarily a case of either, 1) a devious Bush administration sabotage of the investigation (the uniform State Dept. policy of requiring contractors to cooperate with internal investigations in such cases hardly seems like an evil master plan, and in fact probably seems like a pretty good idea in many (most?) cases); 2) a judiciary looking out for Americans at the expense of innocent Iraqis (the judge's hands were tied given his findings in the Kastigar hearing, and it is certainly not as if the judge invented Kastigar); 3) prosecutorial incompetence (although the judge paints things that way, the underlying reality is that "the other side of the Fifth Amendment" makes things difficult on prosecutors, and the reality here may be that investigators would not have been able to conduct their investigation effectively but for the cooperating testimony of the Blackwater guards themselves).

It's certainly possible that, with this dismissal, guilty men will walk. (There will be a prosecutorial appeal; the prosecutors will undoubtedly argue that the trial judge improperly found that the prosecution team relied on protected testimony.) While regrettable, however, that would not necessarily indicate a radical systemic problem: it is a cost of privileging a certain procedure for criminal conviction, in which the presumption is innocence and the burden is on a prosecution prevented from using compelled self-incriminating testimony.

Why is there something rather than nothing?

2009-12-31T15:37:00.000-08:00

Having some time to do nothing, I watched the following worthwhile lecture by Lawrence Krauss:

Here, Krauss, a physicist, attempts to teach non-physicists something about the nature of the universe. About the physics, I am even less qualified than usual to pronounce; but I assume Krauss is competent. Krauss, however, moves from the physics to something else--metaphysics--about which I'm confident Krauss has got things partially wrong.

In the talk, Krauss partially takes up a classic philosophical question: why is there something rather than nothing? Krauss thinks he can answer that question by talking about particles existing or coming to exist in a vacuum, such that "empty space" has mass.

The accuracy of all of this as physics can be granted (as, being ignorant, I must), but, even so, it doesn't actually answer the question "why is there something rather than nothing?". To borrow a phrase from Michael Ruse, frankly, Krauss isn't even in the same ballpark with the question. The reason: Krauss doesn't actually mean (absolute) nothing by empty space-- he means a pre-existing thing out of which other things can come to exist. Here, the "nothing" of Krauss itself has physical properties. Krauss thus already assumes the existence of something, even if he has labeled it, with a certain kind of sense, as "nothing." In effect, Krauss explains only that somethings can come from something, although in surprising ways.

Incidentally, talk of a "multiverse" wouldn't really answer the question, either. You may have a picure of this universe as one among many, but as long as you keep in mind a background out of which the universe(s) appear and with which they hang together, then you, too, have in mind a something from which other somethings come. In which case, the question still remains as to why there should be anything at all- including the (physical) background itself.

A Very Short Post-

2009-12-28T10:34:00.000-08:00

I got ill over xmas but am back now and hope to be posting some more serious stuff soon. In the meantime, in the vein of a prior post, find the cost of non-benign forms of religion exemplified here (discovered via Stephen Law).

Song of the Week - Crazy Dance

2009-12-18T20:16:00.000-08:00

This week's offering was randomly selected from my files-- I haven't listened to it in preparation for posting here, and so it may or may not be worthwhile. I think it is something electronic. It's called "Crazy Dance."

Download here.

How to have both causal explanation and moral responsibility

2009-12-15T18:58:00.000-08:00

I have noticed lately that where people act badly, there is a marked reluctance to discuss the causes of that bad acting. Thus, we abhor any scientific result suggesting that men might have a (in some sense) "natural" tendency of some kind to sexual violence; we dislike the thought that a murderers's actions might be explained via reference to an underlying social circumstance, as in the case of the Ft. Hood shooter or Matthew Murray. In other words, we sometimes act as if there were something deeply objectionable in explaining or attempting to explain the actions of those we would like to morally blame. The refrain, if there actually was one, would be: "These people had a choice!" and "By explaining their behavior, you are just denying their moral responsibility!" Let's imagine there is a group of people (a lot of us, some of the time) with this refain, and let's call them the Anti-Explainers.

Now I propose to explain how the Anti-Explainers are making a thinking mistake, and why they should be less opposed to the explanation of morally objectionable behavior.

The outrage of the Anti-Explainers in the above cases depends on their thinking that: 1) generally, there is something about causally explaining a person's behavior (in social or psychological terms) that requires denying their blameworthiness; and 2) moral blame is sometimes important (as in the case of the Ft. Hood shooter, or Matthew Murray, or sexually violent men). Thus, where someone comes along and attempts to causally explain the behavior of a person we are inclined to blame, we take that explanation --- really, the possibility of any such explanation -- as a direct challenge to our judgment of moral blame. And, as in most cases, we deeply resent this challenge to our basic moral judgment. (There is an entirely separate question as to whether or not we ought to be (more) open to revising our moral judgments. For now, I am content to assume the propriety of these moral judgments of blame.)

The mistake, I think, is in 1. Here is the question ("The Question"): Why must we think that causally explaining a person's behavior requires denying their moral status, i.e., the sensibility of blaming them? I don't see that any such thought is necessary. And if not, then the Anti-Explainers have nothing to fear by the social / psychological explanations being offered: they can have their morality, their moral judgments, their blaming (and let's be honest, we all want these things), and they can have the science, the explanation, the empirical insight as well. (You're welcome.)

In answer to The Question, however, I can construct the line a philosopher (or any of you) might take. He might say-- "Well, judgments of blame requires a notion of free will; we only sensibly blame people we take to have some free will. And, unless you are some implausible kind of compatibilist about free will, you will see that causation is the death of free will; to the extent that a person is caused, he is not free. And so there it is: a causal explanation about a person's blameworthy action amounts to a denial of blameworthiness because it is a denial of a condition of blame -- to wit, of free will."

I think Kant had an answer to this argument, though, or at least to its motivation, in his second edition preface to the Critique of Pure Reason, at about B xxiv-xxx (for those playing along at home). Kant's answer is not to adopt any kind of compatibilism about free will, but rather to point out that a person can be viewed in two senses: as an empirically conditioned object, and as a moral agent. (This critically depends on the possibility of sensibly distinguishing between "things as objects of experience and those same things as things in themselves"; with this distinction in mind, Kant would say that our objecting philosopher makes a mistake when supposing that a person must be viewed as not free if viewed, in any sense, as causally determined.)

Critically, when we think of a person as a moral agent, we are not thinking of that person as under any sort of empirical constraints or conditions; thus, there is nothing in the thought of a person as a moral agent that could informs us, in any way, about the empirical constraints on that person when viewed in another light (some light in which empirical constraints would make sense, that is). This realization does not shut out the possibility of empirical constraints on persons; it leaves open that possibility, pace our objecting philosopher. As Kant said (apologies for my ham-handed editorial additions):

Morality [ed.- including judgments of praise and blame] does not, indeed, require that freedom should be understood [ed.--i.e., morality as such doesn't require an empirical theory of free will], but only that it should not contradict itself, and so should allow of being thought, [ed.--i.e., there is nothing in having a scientific view of the world that somehow requires us to abandon morality or shows it to be a self-refuting idea] and that as thus thought it should place no obstacle in the way of a free act (viewed in another relation) likewise conforming to the mechanism of nature. The doctrine of morality and the doctrine of nature may each, therefore, make good its position.

This answers the philosophical objection, and leaves the Anti-Explainers in a bad position. Although, now that the Anti-Explainers realize that they may have their moral judgments (as full-blooded as they like) and possibly have their empirical/causal/social/psychological explanations, too, perhaps there really is nothing lost here, from the Anti-Explainer point of view.

Niceness, Diviseness, Truth, and Action

2009-12-15T17:08:00.000-08:00

If you're local and were listening to the local public radio station a couple weeks ago, you may have heard this insipid little commentary. The commentator called for niceness through an end to "questions that divide." In his own words:

For example; prior to the last election, at one of the city council forums, this question was raised:

"Do you think global warming is a man made phenomenon?"

On the surface this seems like a totally valid question [ed.: Yes, it rather does.]; one that might even have a clear yes or no answer. [ed.: What "might"? Of course the question has a yes or no answer; only a mush-head would think otherwise.] Give a "yes" or a "no" and you are guaranteed to put yourself on one side or the other of the global warming debate. The reward is that you are now in the exclusive group of people willing to answer that question the same way as yourself. [ed.: O please! As if there's nothing at stake here except feeling yourself to be a member of a group.] Just maybe that group will clinch the votes you need to be elected.

Unfortunately, through the process of grouping ourselves - creating us's and them's - we build barriers to actually accomplishing anything...

And on and on in the same vein: the piece ends with the commentator congratulating himself for following his heart, giving up on all the divisiveness, and just determining to get along with other people in projects aimed at producing good. It's pablum of a very average, conventional, soft-headed kind--the sort of dreck which particularly appeals to those who have never had a real thought in their life, but can only think through stale aphorism and weak metaphor. In other words, it stinks as thinking.

And I actually understand part of the commentator's motivation here: he's concerned, I think, about our American habit of discussing our disagreements badly and non-constructively. And he thinks, rightly, that something ought to be done about this unfortunate state of affairs. But the answer is not in giving up on the discussion of controversial issues where, yes, there are truths and answers to be had, or where, anyway, something might be learned by honest engagement. And there is another problem: just how are we all supposed to act together for the greater good if we don't know what we (variously?) think about the identity of that "greater good," and how will we know what we think unless we are willing to engage in some questioning and discussion with each other? And just what are we to do when we find ourselves with important disagreements?

So, I sent off a missive to the radio station expressing these ideas, and it was read on air soon thereafter. The station didn't, unfortunately, take me up on my offer of providing a special rebuttal commentary.

The letter was this:

Dear Sirs,

I heard a local commentary this morning on your station about the supposed virtue of not asking "divisive questions" (such as "is global warming man-made?") at the expense of focusing on productive collective action.

I think there is something funny about the desire for productive joint action among people who disagree on the need for that action, who disagree, that is, on the premise for acting. "Divisive questions" are sometimes necessary because truth matters, and it matters that people believe the truth. It matters for its own sake, but it matters also because any really effective collective action requires that the collective actors have *some* critical shared premises. If we can't ask potentially "divisive questions," how then to identify those who share our premises and with whom we can join in collective action? If "divisive questioning" is also sometimes uncomfortable or unpleasant, that is as much an argument for better skills of discourse as it is for abandoning all conversations with those likely to disagree with us--which is what, I think, the commentator's recommendation comes down to.

The Influence of This Blogger on the Supreme Court

2009-12-15T16:19:00.000-08:00

The Supreme Court has now heard arguments over the federal honest services mail fraud statute. A review of the arguments in the case shows, I think, that my own skeptical analysis is widely shared (not as such, of course; I doubt anyone on the Court reads this blog) among members of the Court; the justices generally struggled to find some principled way to constrain the vague and overreaching language of the statute, and mostly seemed to think the project hopeless.

What particularly interested me, however, was an exchange between Justice Scalia and the government's lawyer in the Conrad Black case. From the transcript at page 46 (in Adobe Reader):

MR. DREEBEN: I think that Petitioner and I agree that Congress wrote this statute with the use of the phrase "right of honest services" as a term of art, in order to refer to a body of law that it understood had a consistent core, and that core --

JUSTICE SCALIA: Maybe it was wrong. Just because it understood it had a consistent core, it has a consistent -- consistent core?

Faithful readers of this blog will hear here echoes of an argument I raised against Scalia's brand of originalism a few weeks ago in a brief conversation with the Justice when he visited Moritz. I had asked Scalia why an originalist judge couldn't suppose that the Framers mis-applied or mis-judged their own concepts; my particular example concept was "cruel," as it happened. My point there was that the enacters of legal language might misunderstand their own concepts (or the application of those concepts). At the time, Scalia said the idea was "interesting" but then mocked it, suggesting it was ridiculous to think that anyone would not understand their own concepts, or the application thereof. It is somewhat heartening to see that, on reflection, Scalia has reformed his view to accord with mine. And now that Scalia does recognize that enacters can get their own concepts wrong, what will happen when he extends this insight to Constitutional language? Perhaps he'll then come fully around to my brand of originalism, a brand which leaves judges to apply original Constitutional concepts according to the best lights of their particular judgement.

Song of the Week: Company With Myself

2009-12-05T18:02:00.000-08:00

It's a day late, but here it is: this week's song. This song is an early version (written about 2000) of a song which I've re-written and re-produced a couple of times since. I still like my original version, even if it is pretty simple and bare-bones. But you can judge for yourself:

Download here.

The Nature of Pain-

2009-12-03T15:06:00.001-08:00

My hastily-formed thoughts on this topic can be found here (view the comments thread).

Locating moral elbow room in constitutional interpretation

2009-11-29T20:41:00.000-08:00

I do not happen to think that there is anything necessarily illegitimate about allowing moral "elbow room" in constitutional interpretation-- i.e., in allowing some room for an injection of the judge's substantive values and ethics into his decision of a case. This view has drawn some ire from some conservative "originalist" theorists (including Justice Scalia) who insist that the law--especially constitutional law-- must be fixed and given and set if it is to have any point (let alone legitimacy) at all. In answer, I grant these premises and issue a challenge to these conservatives: explain how allowing moral elbow room is necessarily inconsistent with viewing the authoritative legal text as set or given. As I've previously shown, for at least one possible story, it is not inconsistent at all. It thus seems to me that as the conclusion to an originalist argument, even granting basic originalist premises, the view that judges should never judge a constitutional question in light of their own values is inadequately supported. There is nothing inconsistent in being an originalist and insisting on the grant of moral elbow room to judges.

Somewhat more precisely, this "moral lbow room" is possible under an originalist theory given the unavoidable practical need--duty, really--for judges to judge the application of a (given, set) concept contained in the authoritative text to a particular case. And that is where I would locate that elbow room, since I do think that the authoritative text needs to be viewed as set and given, with static, non-ambiguous concepts. "Needs to be viewed," because the opposite view of the text as containing fundamentally ambiguous concepts robs the text of legitimacy. To the extent that language is ambiguous and might mean anything, we are being ruled by men--in particular, the men who get to say what the language means. Or, where the ambiguity is nevertheless constrained (we might think of two or three inconsistent theories of what the First or Second Amendment means, for example), there is still a problem: what principle is to determine the resolution of the ambiguity? If no principle at all, if just the subjective judgment of the judge, then, again, we are being ruled by men and not by law. And to the extent that the ambiguity is resolvable under adequate principles, why not say instead that the language has a fixed meaning--but it just takes some work to figure out what that meaning is?

Song of the Week: KeepsWalking

2009-11-27T09:35:00.000-08:00

Well, next week and into the following week, I expect to have a trial and two exams back-to-back-to-back. So, there probably won't be much blogging going on, as I study and prepare madly. (Which is what I've been doing this week as well.)

But I will post new music against all good taste. This week's selection is a power-pop/rap influenced piece. I call it "Keeps Walking."

Download here.

Song of the Week: Gentle Breeze

2009-11-20T10:29:00.000-08:00

Here is your cure for a stressful week. I call it "Gentle Breeze (The Wedding Song)." It's about what you might expect for the title.

Download here.

Stare Decisis

2009-11-19T18:13:00.000-08:00

Stare Decisis is the jurisprudential doctrine which says that the decided case should be left to stand. It is a fancy Latin way of saying that past cases should be treated as authoritative precedent which controls new cases, at least to the extent that new cases are analagous to the old decided cases.

Justice Scalia, like most jurists, accepts stare decisis. Asked about this at Tuesday's conference, Justice Scalia contrasted his acceptance of the doctrine to Justice Thomas's rejection or skepticism. In particular, Scalia expressed the view that "life is too short" to constantly be re-opening and re-deciding old cases. (This line drew a laugh from the audience.) The thought is that, if anything is to get done in the law, some prior legal propositions must be taken as settled.

This view is pretty conventional, and it is probably the part of Scalia's talk that engendered the most agreement from the assembled legal crowd.

I think, however, that there is a potential problem with this view. If our only reason for respecting the past case is that it would be a lot of trouble to reconsider it, then, in my view, we haven't really got a principled reason for accepting stare decisis. What if the old case is both wrong (as a legal matter) and unjust (as a moral matter)? Ought we treat such a case as good authority simply because it is more convenient to do so? Really?! As between legal correctness and justice on the one hand and convenience on the other we choose convenience?

Of course, many judges, faced with such a hard case, would be willing to forgo the application of stare decisis, as they clearly ought to do in such a situation. But what then to make of stare decisis as a doctrine?

By way of answer, how about this:

Maybe there is a proper presumption that decided cases are decided correctly, both as a legal matter and as a matter of substantive justice. If so, this presumption then legitimates the ordinary practice of treating, as authoritative, the legal propositions those cases stand for. (We can even call this practice "stare decisis.") Perhaps this presumption is a very strong one. If so, then it would not be surprising if, in the vast majority of instances, the decided case was left untouched. But, if the presumption is anything less than an absolute and irrebuttable presumption, then there will be some cases in which the old cases properly may be re-examined (as is, in fact, the practice).

Anyway, there's the principled story we can tell about stare decisis that let's us think of the law as something more than merely an exercise in doing what is convenient.

Scalia and Me, or How to Properly Interpret Constitutions

2009-11-17T17:01:00.000-08:00

Today, Justice Scalia visited my law school for a symposium at which he delivered a keynote address. I was invited to a group coffee with Justice Scalia and other law journal members; of course I attended. I also attended the keynote talk.

I managed to ask questions of Justice Scalia both times, and got into a minor argument with Justice Scalia at the coffee. I say "minor," because I limited myself to a single brief rejoinder before shutting up out of respect for his time. And, also, because the Editor-in-Chief (a decent, able, and hardworking captain) probably would never have forgiven me if I had pushed much farther; the format was a Q&A, after all, not a free-wheeling, no-holds-barred roundtable discussion.

Incidentally, Justice Scalia pretty much confirmed for me something I have supposed about his thought for a while: namely, that in theorizing about constitutional interpretation, he is centrally concerned to maintain an idea of the law as something given or discovered (as opposed to something constructed or created), because (he thinks) the legitimacy of the law depends upon its having these features. (I asked him the leading question in pretty much those words,* and the answer was "Yes, we're saying the same thing, I think," and "I agree that it has to do with legitimacy.") Of course, this is hardly a revelation to anyone who has followed Scalia's theorizing, but making this implicit premise explicit helps one to understand Scalia's underlying motivation and theoretical framework.

In fact, on this broad point, I happen to think Scalia is exactly correct: the legitimacy of the law does depend upon its being a given that constrains the discretion of judges in deciding cases. Certainly, to the extent that we think judges are creating or inventing rules in an unconstrained way, it's reasonable to think that we are under the rule of man, as opposed to the rule of law. (And we want to avoid being ruled by man as opposed to by law!) And thus similarly to the extent that we think judges are substituting their own viewpoints for the viewpoints embodied in the given, authoritative text. Particularly, if we thought that judges were substituting concepts given in the text for some other concept not given in the text, we should view the exercise as illegitimate.

This need to avoid concept-substitution naturally gives rise to "original meaning" as the guiding principle of constitutional construction. In holding that constitutional concepts must be taken to have their "original meaning," the point is simply to avoid judges substituting concepts provided in the given authoritative text with something else; such substitution does violence to the text. And since the text is authoritative, this would be regrettable. Perhaps another way to make the same point: ambiguity has no place within legitimate law (a point made more concretely in this prior post); but if we can never be sure what concepts are reflected in the given text (because judges may substitute whatever concept they prefer when it suits them), then the law is ambiguous.

But I think Scalia is wrong--and hence my minor argument with the Justice--on his sub-theory of just what gives the original meaning of a constitutional concept. Justice Scalia thinks that the original meaning is determined by the particular way in which that concept was applied at the time, regarding society broadly. To put the point negatively, he refuses to distinguish between a concept and its application in this respect: the concept is the application. This view, in turn, requires denying the sensibility of having any idea that a concept could possibly have been (widely) mis- applied at the time of enactment. To me, there is no conclusive good ground to deny this possibility. It was on this conceptual point that I pushed the Justice.

As I framed it, why was it not open to an originalist in the year 2009 to suppose that the enacters of the 8th amendment (say) may possibly have improperly applied a moral constitutional concept (say, 'cruel')? After all, I said, people do sometimes mis-judge the application of moral concepts; and this doesn't necessarily mean (does it?) that the idea or concept isn't the same. This 2009 originalist jurist, I pointed out, could then take himself to think that his concept of 'cruel' (say) was the very same concept as that used by the 8th amend. framers; it was only the application of that (same) concept that changed in the year 2009, to correct for the mis-application of an earlier age, or maybe to apply the concept to a new circumstance or practice.

In response, Scalia basically made the move his theory demanded: he denied the very sensibility of thinking that a constitutional concept could have been widely misapplied at the time of its introduction into the text. And then he accused me of effectively sanctioning the arbitrary injection of a judge's personal, subjective, idiosyncratic moral viewpoint into judicial decision-making (in a way, no doubt, that would do violence to the requirement that the judge be constrained by the given authoritative text).

It was at this accusation that I reacted in defense of the view I was suggesting. "No," I said, "the point is just to be open to a certain possibility-- namely, the possibility that the framers could have gotten the application of their own moral/constitutional concepts wrong." Scalia answered that they would have had to be idiots to apply their own concepts wrong (as with regard to the death penalty, say).

I shut up at this point, as I said.

Scalia's parting shot is sort-of fair, I think. The presumption should be that people will properly apply their concepts. On the other hand, the presumption clearly can be rebutted: we can think of cases where people and cultures failed to live up to their own (moral) demands. And, incidentally, we don't need to necessarily think that everyone who fails to live up to their own moral demands is necessarily an idiot or blameworthy; they may have lacked moral vision, or have had indigestion (as the case may be--the point is that lots of non-idiot-making stuff can interfere with judgment about the particular application of (moral) concepts). The denial of the rebuttability of the presumption--the denial of the possibility (as a possibility) that the framers could have misapplied their own constitutional concepts--seems to me here simply dogmatic, and not principled.

Of course, if we allow the possibility I am after, this still leaves open the question of just how judges then should go about making determinations as to the proper application of a given constitutional concept. And Scalia may be right to say that there is no good way to cabin the discretion of judges here in a way that preserves the essential requirements of the legitimacy of the law. Certainly, if this was the underlying nature of Scalia's concern, as I suspect it is, then it is easy to understand why he would be motivated to deny the possibility I want to open up, dogmatic or not. (And let's be generous and say that in a short answer format, it would be unfair to expect any very grand theoretical response; but let's suppose here that Scalia could make a fully principled reply, or maybe has already and I have forgotten.) Scalia's concern is basically noble: to preserve the legitimacy of the law by keeping stuff out of it (the subjective, idiosyncratic, moral values of judges) that (he thinks) will tend to make it illegitimate.

My view here, for what it is worth, is that in fact the law is (thankfully!) not necessarily made illegitimate (or pushed in that direction) by the impact of a judge's particular substantive moral views on his decision-making. I am not sure, but I think this view of mine (and the difference between Scalia and myself here) may have to do with my view of moral value as something objective and constrained by reason (or within the realm of reason), and not merely a matter of (as Scalia seems to think) purely subjective, idiosyncratic, and essentially arbitrary taste. I do not feel the problem in the same way Scalia does, then.

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* - My specific question was: "Do you think that the legitimacy of the law depends upon its being given or discovered? If so, then is it fair to say that this principle motivates and grounds your theory of interpretation?"

Song of the Week: Disco Down!

2009-11-13T17:54:00.000-08:00

I would like to think that in posting my songs from different genres, I am showcasing my versatility, and not simply my lack of any serious musical identity. All that to preface that this week's contribution is meant to recall disco. Finally, I will make a bashful confession: the motivation to screw around with disco as a musical concept and create this song derived from watching this. Here is the song (not comedy, not intentionally anyway), "I Could Move You":

Download here.

In Defense of Electroshock

2009-11-12T14:59:00.000-08:00

The purpose of the criminal justice system--the goal without which we could not make sense of the criminal justice system--is punishment. And it is nothing more than confusion about this purpose which prompts the attempt to re-cast the criminal justice system as just another aspect of a social welfare system. Obviously, there are social welfare problems that impact crime- lack of education, lack of feeling connected to a decent community, drug abuse. And many programs might address these problems. But these problems and these programs are social welfare problems and programs, and they have nothing to do with the point of the criminal justice system, which, as I said, is punishment. The point of criminal justice is punishment, and punishment means inflicting pain. This is the reason why we are concerned that jails and prisons not be too pleasant for prisoners; and this is the reason why, when watching a revenge-movie, we derive such a deep psychic satisfaction from seeing pain inflicted on the wrong-doer. We recognize instinctively what justice demands, and we shouldn't be blind to our deepest moral intuitions as they are revealed here. Justice demands punishment for wrong-doing, punishment means inflicting pain, and so that's what should be done. Moreover, science has advanced to the point that we could inflict pain through carefully administered electroshock in a way that ensured that no permanent injury or damage was done to the defendant. We could calibrate the shock in proportion to the seriousness of the crime; more serious crimes would mean more shock, less serious crimes, less shock. So, it can be done, and it meets the demand of justice for punishment. There is no reason not to institute electroshock punishment.

---
The above is the speech I gave in class today. I wanted you to read the speech first without qualification so that, maybe, it would have more visceral punch.

As part of a class exercise today, everyone was supposed to imagine themselves as the plenary head of a state criminal justice system facing a prison shortage, with enough resources to either expand or reform the prison system, as desired. To get the discussion going, the professor suggested four initial options: a) build more prisons, b) establish more in-prison drug-treatment programs (prisoners who go through these programs have significantly lower recidivism rates than the general population), c) encourage "restorative justice" programs (non-violent offenders would have to face their victims and the victims and offenders could mutually agree on a punishment, which usually will not involve jail), d) institute a system of corporal punishment. Unsurprisingly, perhaps, nobody chose d. This chagrined the professor, and, being the caring person that I am, I volunteered to defend corporal punishment as an aid to the discussion. I spoke last in the class, and gave the above speech.

On reflection, though, I'm not completely sure what makes the pro-electroshock position wrong. Everybody in the class, including myself, had the intuition that there was something wrong with corporal punishment, but the discussion afterwards didn't reveal any moral objection aiming at the heart of the argument except the existence of the contrary intuition that electroshock would be inappropriate. (An objection was made that defendants with unknown heart problems may be harmed by the electroshock, but I think this is as much an argument for good science and careful administration as it is for a 'no-electroshock' rule.) Perhaps an objection might have been raised getting to human dignity, but there are two answers to this: a) first, any kind of punishment (or forced participation in a patronizing program of therapy) threatens human dignity; being locked up, for example, is not particularly dignified, so tu quoque at least, and b) the administration of electroshock need not be violent; there is no call, for example, for sadistic guards. So it's not obvious--is it?--that there is something about electroshock therapy which necessarily involves any more loss of dignity than we are anyway prepared to impose.

Röyksopp

2009-11-07T09:28:00.000-08:00

One of the nice things about iTunes's song-sharing feature is that you sometimes discover great bands you never knew before. One of the bad things about same said feature is that you then waste an inordinate amount of time on Wikipedia while reviewing the band's output, when you should be studying for the ethics portion of the bar exam you have to take the next morning.

When I fail that exam, I will blame Röyksopp.

Why Reasons are Mind-Independent

2009-11-06T14:55:00.001-08:00

The question--are reasons mind-dependent or mind-independent things?--came up in comments on a recent post. In this post, I offer a handful of half-baked arguments for why reasons are mind-independent:

Because the phenomenology fits. Reasoning feels like a practice of discovery and of searching; it doesn't feel like creation. (Although there are cases where feelings of discovery and creation combine, as in playing chess: you see or find reasons for one line of play as opposed to another, but there is, even for expert players, still a range of unconstrained options that won't be wrong.) But this is potentially a highly idiosyncratic consideration, so I move on.
Because the language fits. We speak of "grasping" reasons, of "getting" the reasons for ___, sometimes of "seeing" reasons (or of seeing a course of action which recommends itself), of understanding something. This language suggests that there is something objective to be grasped, or something to "get," or a thing that recommends itself whatever our opinion of the matter. We do not ordinarily speak of "creating" reasons. (I've never done so.) We may "have" reasons, but "having" is (it seems to me) ambiguous between whether the thing had is mind-dependent or mind-independent, so no help there. (We might similarly "have" feelings or concrete things.)
Because the authoritativeness of reason is better explained. Reasons have the feature of being authoritative, of constituting unconditional recommendations to us. This authority is, it seems to me, better explained if reasons connect with (or are) something objective and real as opposed to something subjective and purely mind-dependent.
Because there is no other way to make sense of the constraints on reasoning processes. Mental reasoning processes (or functions or practices) can sometimes go wrong and produce non-reasons as output. But if reasons just are necessarily the output of a reasoning process in the way that creations are always just whatever results from the creative (creationing?) process, then we can't make sense of a reasoning process producing a non-reason output.

Like I said, it's all pretty half-baked stuff. I throw it out there with no expectations of convincing anyone.

Song of the Week

2009-11-06T14:24:00.001-08:00

This week, a taste of an attempt at something dance/electronica. I call it "Sans Responsibility."

Download here.

Dennett on Darwin and Reason-finding

2009-11-05T08:12:00.000-08:00

Daniel Dennett gave a lecture in Oslo that is worth watching. In the talk, Dennett offers a theory of cultural evolution as a mostly undirected, unthinking process guided by the unthinking hand of natural selection. Key to this idea is the idea of natural selection as an "automatic reason-finder": given a competitive environment, and given differential replication, in selecting "fit" variants, natural selection is actually responding to naturally-existing reasons for the selectee to do things one way and not another (or to have some features and not others). This is a case of reasons existing independently of minds, and independently of being fully represented in minds. And this leads to a thought like this: just because we humans do and have things that there are reasons to do and have (just because we have culture) does not necessarily mean that intention or deliberate design was involved in creating those things. Cultural evolution may be as mindless as biological evolution.

I like Dennett's viewpoint here, and I like the view of reasons as mind-independent things such that reasons exist independently of whether they are "grasped" by a mind.

And, by the way, notice something that Dennett is doing in general here: he is offering a higher-level interpretation of Darwin's theory of natural selection; he is telling us what the theory means in ways that Darwin himself might have never explicitly grasped. Those who think that philosophy is nothing but hot air in relation to hard science should keep these sorts of contributions in mind. The project of interpretation is a conceptual, not empirical, project. As such, I think it is basically philosophical in nature. This is not to say that philosophers are especially privileged here; non-professional philosophers may certainly engage in the project of interpretation (e.g.- imaginative mere scientists). But the basically philosophical nature of such large interpretive projects bears noticing.

Context and Psychology

2009-11-05T07:59:00.000-08:00

In the vein of an old debate/conversation about contextual influence on psychological health:

New research apparently suggests that modern-day psychologically healthy people can become broken and exhibit extreme behavior given the right circumstances. (More particularly, this study apparently suggests that YOU--yes, normal, psychologically-healthy you!--could become a celebrity stalker under the right conditions.)

I think that this is another empirical data point in favor of the view that psychological brokenness, even extreme kinds, does not necessarily depend upon having a pre-existing hard-wired abnormality.

The Problem of Resurrecting the Logical Problem of Evil

2009-10-31T19:41:00.000-07:00

The so-called "logical problem of evil" is represented by the claim that the existence of evil in the world is logically incompatible with the existence of a perfectly good, all-powerful, personal God ("God"). If this claim is true, then the existence of any evil at all in the world means that no good, all-powerful, personal God can exist. By way of background and for reasons that will soon become clear, contemporary philosophers of religion commonly distinguish the logical problem of evil from the so-called "evidential" problem of evil. The "evidential" problem of evil claims that, given the quantity and/or kinds of evil which actually beset us, we have a good reason to suppose that no such good, all-powerful, personal God exists. The point of this argument is not to rule out the existence of God as a possibility, but to relegate that possibility to a very small and distant one.

Here, I want to examine the logical problem of evil a bit.

The classic formulation of the logical problem of evil goes like this (from David Hume, who credits Epicurus):

"Is [God] willing to prevent evil, but not able? Then he is impotent. Is he able, but not willing? Then he is malevolent. Is he both able and willing? whence then is evil?"

The contemporary pro-God philosophical response to this challenge takes up the premise that if God is "able, but not willing" to prevent evil, then he must be malevolent. Alvin Plantinga, particularly, suggests that God might have a morally sufficient reason to allow evil, and, if so, then he would not be malevolent if able, but not willing, to prevent evil. If God has a morally sufficient reason for allowing evil, then he can't be blamed if evil exists.

Some candidates have been suggested for the "morally sufficient reason" for allowing evil--most notably, perhaps, the Free Will defense. This is the silly idea that there is something so valuable about preserving free will as to actually excuse someone in allowing evil even when it is in their power to prevent or stop the evil. I say this idea is "silly" because when it actually comes down to preventing evils like cancer or the Holocaust, it would (obviously! clearly!) be wrong to give a second thought to the "greater evil" of overriding the free will of whatever evil-doers may have willed those particular harms. In practice, at least for large evils with widely-felt effects, the only proper goal is to stop the evil even if that means thwarting the will of the evil-doer. Additionally, color me skeptical that any decent person actually believes the free-will defense, since most decent people I know would never themselves respect the reason it purports to offer for action as any kind of reason for their actions, at least when it comes to important evils (like the Holocaust, or cancer).

But this is a tangent. You might agree or disagree with my assessment of the Free Will defense as silly. Go however you like. In fact, the focus on particular candidate reasons misses the larger point that, whatever our opinion of any given candidate reason, we have no ~~obvious~~ conclusive reason to deny the very possibility of God having a morally sufficient reason to allow evil. (That is, it is not obviously or clearly unreasonable to think that God might possibly have a reason, even if unappreciated by us, for allowing evil.) And as long as that possibility hangs out there (however slim), the theistic philosopher has an answer to the logical problem of evil. He needn't offer any convincing candidate for the possibility to have this answer; it is enough that God could possibly have a morally sufficient reason to allow evil that is unbeknownst to us. Indeed, it is precisely the recognition of this consideration that has prompted contemporary atheistic philosophers to take up the evidential problem of evil: the consensus is that the logical problem is solved.

Incidentally, it would be a very good trick for an atheistic philosopher to resurrect the logical problem of evil. I don't recall having seen it done.

In thinking about this problem, it seems to me that there is at least one constraint on the kind of morally sufficient reason God could have for allowing evil. In particular, any such reason would have to be a reason which gave God a reason not to intervene to prevent or cure particular evils in our world, but did not similarly give us a reason not to intervene to prevent or cure those same evils. To see how this constraint arises, suppose that God exists. This means that we are also supposing that there is a reason, some reason, not to intervene to prevent or cure particular evils in our world, since, by hypothesis, such a reason exists to justify God's non-interference. Nevertheless, our confidence that this reason exists (and it is a confidence which every true believer should have) would not / does not properly prevent us from taking up projects to prevent or cure evils (we appropriately have hospitals, and emergency response, and disaster relief, and fund Medicare, and grant money to scientists who seek to cure cancer, etc. etc.). Consequently, it must be the case that this reason, whatever it is, constrains God's action and not our action. The reason must apply unevenly.

A question arises from noticing this necessary feature of the kind of reason justifying non-intervention (which God must have): could a reason apply unevenly in the needed way? If not, then the logical problem will be fully resurrected.

In fact, however, I think we have at least one example of such an unevenly-applying reason for non-intervention among different kinds of humans. A journalist investigating a story may find herself in a position where she could cure some particular harm or evil (as by feeding the starving orphan herself). Nevertheless, we don't blame the journalists who refuses this aid because we think--what?--something like, perhaps, that the journalist, by documenting the starving orphan, is actually doing a greater good which could not be served otherwise. Thus, while the rest of us might have had an obligation to intervene (and have had reasons for intervention), we see the journalist as removed from the ordinary rule (i.e., as having overriding reasons for non-intervention which we lack).

The problem with the story of the journalist as a model for the kind of unevenly-applying reason God might have to justify or excuse his non-intervention is that everyone in the above story of the journalist might actually have an equal obligation to do those things in their power which will have the effect of saving the maximal number of starving orphans. In the case of the journalist and the starving orphan, the question of being "excused" from a general rule, or the question of a reason-for-action applying unevenly the journalist and the rest of us, is really just the question of effective tactics or strategy for ameliorating evil. And the question of tactics or strategy seems here to arise only given the special abilities of the journalist (to raise awareness) and the larger limitations of human power and attention (such that there is a need to raise awareness in the first place)--limitations which, by definition, God would not possess.

But perhaps it is enough simply to suggest that there could be this kind of unevenly-applying reason in general. In which case, although I have perhaps pointed out an aspect of the co-existence of evil and God (in particular, showing that the sort of reason God would need to have to justify non-intervention would have to be a reason that didn't apply to us humans), the logical problem of evil is not yet really resurrected. That problem awaits a cleverer person than I.

Song of the Week

2009-10-30T10:28:00.000-07:00

This week's song was produced and mixed last week by yours truly. I'm proud of the mix if not the vocals, so be sure to listen on some good quality speakers or earbuds. Lyrics are from Elijah Blower. The killer guitar is from Robbie Gehring. The style aims at pop rock. Download here.

Downloading Minds

2009-10-28T17:33:00.000-07:00

A friend kindly points out an article that suggests that mind-reading technologies are advancing rapidly. After reading this post and talking to the friend, I got to thinking more about mind-reading, total mind-downloading, and the challenges to it.

The problem of downloading the contents of an entire mind into a computer--a possibility assumed for the sake of discussion in my last post on the future law of mind-scanning--would seem to be decidedly non-trivial. Assuming minds are "in the brain" in some relevant way, one part of this problem is the problem of modeling or representing the totality of every relevant physical attribute of the brain. Still, imaging and computing technology is advancing rapidly, and perhaps this problem will soon be solved. But a second, bigger, problem looms: that of interpreting those physical attributes as mental content. I supposed in the prior post that in principle this is possible, but I have very little actual idea how possible.

One part of the second, interpretive, problem is that it seems to be the case that minds don't exist simply given an arrangement of dead matter (or else the recently deceased would still have a mind), however it is that a particular arrangement of matter clearly has something to do with the existence of our minds. So, insofar as a mind-scan would simply produce the digital equivalent of a collection of dead matter, there may not be much mind there. And if the existence of a mind is necessary for the existence of the content "in" that mind, that could mean that the representation or model of the brain, at whatever resolution, contains no content (or as much content as a dead, disembodied brain). The sort of thing that does seem to produce mental content is a certain active functioning of matter; when the neurons are "lit up" with signals passing between them in the right way, then I have consciousness and mentality (and thence mental content). And that suggests that in order to get content out of the results of our scan, we would need to somehow activate the model, in a way that reproduced the functioning of brain matter. And then we could interrogate the model for content. (But would this be protected testimony? Would we then have created a true brain-in-a-vat?).

Incidentally, the article linked to above--in which researchers could reproduce pictures a subject was looking at simply by reading the brain--is consistent with the view advanced here. In that case, the researchers were reading a functioning arrangement of matter, and not simply examining dead matter of the kind that a scanned model of a brain would, essentially, represent. So, I still think true total mind-downloading is quite a ways off--a far, distant possibility, dramatic recent advances in brain science notwithstanding.

Privacy and the (Future) Law of Mind-Scanning

2009-10-23T20:08:00.000-07:00

If brain-science advanced to the point where a scan could enable you to tell what someone is thinking, would it be an invasion of that person's privacy to use such a technology? If it were an invasion of privacy, would it be enough of an invasion to council against using that technology in a court of law? On a witness? Against a defendant?

In fact, scientists (or smart graduate students) can already read your mind by reading your brain. The technology may not reveal much now, but it is developing rapidly, and might lead to highly accurate lie-detection, to uncovering attitudes (as of racial bias)(a psychological test already exists to show bias), or, at the furthest extreme, to simply downloading your mind and everything in it.

This being partially a philosophy blog, I will assume the most extreme possibility (since that makes the discussion sharpest) in the rest of this post, and talk about the mind-downloading possibility.

Would a total mind-scan be an invasion of the scanee's personal privacy?

If the information exposed by the brain scan was seen by another person not a chosen confidante, and if that information included private information, then yes, clearly, that scanee's personal privacy would be invaded.

I emphasize particularly the need for another person-not-a-confidante to see the secret information. Information about us "seen" only by a machine (or by a computer network) does not naturally concern us in the way that secrets revealed directly to another person would concern us. We might be concerned about the potential that a person will uncover the information in the machine, but a concern about this kind of merely potential privacy violation is not the same thing as the feeling of personal violation we have given an actual invasion of privacy. Critically, potential privacy violations might never be realized; actual privacy invasions are realized. Write your secrets in an encrypted digital format, burn it to a hard drive, and then dump the hard drive at the bottom of the Marianas trench and see if you feel the same as when I reveal your secret directly to everyone in whom you don't wish to confide. And yet the secret is "out there"--beyond your head--in both cases.

Notice that, incidentally, depending on our use for the mind-scanning technology, this already suggests at least one thing that might be done to minimize the risk of, or scope of, a privacy violation: the scan could go into a sophisticated, highly secured, computer. The computer could then identify the particular information of interest to the world. Depending on the information being solicited, this could still be an invasion of privacy, but such invasion would at least be minimized.

But, in some cases, yes, use of the mind-scan could clearly be an invasion of the scanee's privacy.

Given a privacy-invasive mind-scan, should the state be allowed to use personal information obtained by the scan in a judicial proceeding?
I'm going to punt on this question a little bit and assume a legal angle, ignoring the larger normative question of whether the legal system in general has its privacy principles right. (There's a little less punting here.)

Legally, I think the answer to the above question is clearly 'yes.' The justice system in particular absolutely protects only a single narrow species of personal information about a person provided by that person: the self-incriminating testimony of a criminal defendant. But as long as you don't obtain your evidence in that forbidden way, just about everything is discoverable and usable in court, no matter how personal or private or offensive to the dignity of some person. So, for example, if obtained by a search warrant, it's clear that pretty much anything the defendant has ever written down may be used; and the court may also compel a defendant to provide DNA from the defendant's body. The prosecution can get a warrant and invade your home and your business, or your lawyer's office, and cart off any personal records of yours it finds (banking, health). (Some items may be protected by attorney-client privilege, so if the only person who knows your secret is your attorney, then the secret will not necessarily be discoverable.) The court can order you to give your signature on a release form for access to your off-shore bank account. The court can compel most witnesses to tell everything they know about you. (Again, your attorney, your spouse, and maybe your doctor are off limits, so if the only person who knows your secrets are these people, then your secret will not necessarily be discoverable.) The court can compel witnesses to reveal embarrassing information about themselves, if it's relevant to assessing the witnesses credibility.

Anyway, this picture makes clear that your right to privacy--your right to keep private information about you secret--is anything but absolute at present in the courts.

Given this status quo--and, incidentally, a status quo which I think is basically appropriate, in light of the need for good evidence to ensure just outcomes in cases--it is clear that, legally, there will be precious little to stand absolutely in the way of the judicial use of mind-scan technology. As used against a criminal defendant, evidence obtained by such a scan would be non-testimonial (clearly there is no person who is himself, qua person, communicating at all in a mind-scan), akin perhaps to DNA evidence. A court can order DNA from a criminal defendant, even where that evidence would be incriminating, because DNA is not testimony under the Fifth Amendment. An order to mind-scan is like an order to obtain a kind of mental DNA; like DNA, mental DNA provides information about the person, and can only be obtained by getting at something encoded in the body of the person. In both cases, no particular action at all is required on the part of the person from whom the DNA or mind-scan is obtained.

Or, maybe we analogize the privacy of the mind to the Fourth Amendment privacy of the home or personal effects, and institute a regime whereby a court issues warrants for mind-scans upon probable cause that incriminating evidence will be found therein--in which case, as with Fourth Amendment searches generally, everything found may be used against the defendant (no matter its private-ness). And, since the mind-scan is like these already-permissible potentially secret-revealing actions, it is hard to see why different rules would (or should) apply to a mind-scan.

So, in a judicial proceeding at least, prosecutors and courts should freely countenance and use the mind-scan, at least to the same degree that they should allow and do the relevantly similar things they already allow and do. Mind-scanning would not obviously seem to be inconsistent with any current known legal principle or practice.

To be fair, there might be one slim reed in legal support of an anti-mind-scanning position, at least when used against criminal defendants. In Estelle v. Smith, 451 U.S. 454 (1981), the Supreme Court held that defendant's Fifth Amendment rights were violated by the use of a compelled psychological evaluation to determine his sentence. If mind-scanning is analogized to a kind of comprehensive, ultra-reliable psychological evaluation, then perhaps its use in criminal proceedings could be prevented. The obvious problem with this analogy, however, is that in the case of an actual psychological evaluation, the defendant-qua-person is actually communicating. But communication is not happening in the case of a mind-scan. Hence, there is no testimony of the defendant, as required for the Fifth Amendment protection. There is a difference between a) you communicating with me and b) me retrieving the contents of the stuff between your ears. Without communication, there is no testimony of the defendant, and without testimony of the defendant, there is no Fifth Amendment protection against mind-scanning.

Song of the Week

2009-10-23T10:44:00.000-07:00

This week's song represents an attempt at blues. It would probably sound better if this guy sang it. Here it is:

Download here.

An Excursion Into the Philosophy of Tax

2009-10-23T09:01:00.000-07:00

In which, having no background in tax or economics (except whatever might have been absorbed incidentally from some tangentially-related studies), and having even less background in the philosophy of tax (since it is not clear that this field yet exists, except as economic theory, my knowledge about which, see above), I attempt qua philosopher to rationalize the disparity between capital gains and income tax rates, with an eye toward answering a particular currently-pressing policy question, about which at least one Congressional proposal has been made, and the interest of the President announced, to wit, assessing the proper kind of rate of taxation for money received in respect of services which have specially enhanced the value of some investment, such pay seen as “coming out of” the enhanced value of said investment, and frequently called a “promote” or “carried” interest.

[End 19th Century Speak.]

In other words, should we tax capital gains and income differently, and if so, when? What general considerations come to bear? And, moving beyond the “screw-the-rich” v. “anything- businessmen-want-is-good-for-America” level of debate, is H.R. 1935 (which proposes taxing certain partership interests as income rather than capital gains) a good idea or not?

Background: Capital v. Income
Capital gains are profits from the investment of capital, and, under current (U.S.) law, they are taxed at the rate of 15%. Earned income is the money a person makes for working at their job—typically, wages. The top tax rate for earned income is 35%.

In thinking about the basic reasons for this disparity in tax rate, the following considerations might be apt:

First, socially, we want capital to be invested, rather than stuffed under a mattress, which is always a tempting place for capital. Capital investment is a social good in general because it produces economic activity and leads to new or better products and services, or to development. And there is properly a presumption in favor of economic activity and new or better products and services, and development. The point can be argued, but, done right, most everyone will be in favor of these things. (You’d be right to suggest that “done right” potentially covers a lot of ground, but for present purposes, I’m basically willing to assume any theory you’d like to fill in the concept. So bear with me.) Anyway, assuming that these are real goods generated by capital investment, there is nevertheless a practical problem: capital won’t be invested unless it can earn a return. More to the point, for rational investors, the investment of capital in a particular project depends on reaching or exceeding the right rate of return for the given riskiness of the project. The riskier the project, the more return that must be promised--otherwise, it will make more sense to keep the capital under the mattress, where it does nobody any good. And insofar as there is a capital gains tax, that means that some projects or investments won’t happen, because the return on capital needed to support the project will be, after taxes, insufficient. The tax necessarily lessens the rate of return which capital can expect for a given project. The higher the capital gains rate, the more potential projects there will be that fall into the “not a rational investment” category as a result (if capital gains tax were 100%, no rational investor would ever risk capital); and conversely.

Of course, there are some social goods that come from an investment-killing capital gains tax (which every capital gains tax must necessarily be to some degree): the revenue from the tax provides for public goods and services of various kinds. So, then, as long as we aren’t willing to sacrifice these public goods, and if we don’t think these public goods will be achieved (as well) if left to the private market in the absence of the capital gains tax, it makes sense to have some capital gains tax. The problem will be to have a tax rate that gives us the right mix of tax-supported public goods and the investment-derived goods.

Income-earning, however, unlike capital investing, does not need to be incentivized in the same way. Assuming that an income-earner is earning more than the minimum amount for which he would be willing to trade his time doing those things for which he is paid, it will make no difference what his tax rate is: that worker will work anyway. (Think about it.) (I'll call this magic number, whatever it is, the worker's "minimum demand" or "minimum pay.") As long as the income tax rate leaves the worker with more than the minimum pay he requires, the rational worker will be incentivized to work to exactly the same extent, and so to provide his services for the good of others. In this case, it couldn’t properly be said that there was necessarily some loss of productive activity (working) in virtue of the tax rate (as could be said in the case of capital and capital-gains taxation).

Of course, there might be another concern. Socially, we may want to incentivize people to invest considerable time, effort, and expense gaining especially difficult, but nevertheless socially valuable, skills. Many people won’t invest this time without the prospect of a fair rate of return, given the risks (and costs) involved. Given these considerations, it is tempting to cast the question of worker pay as a question of return on investment analogous to the case of traditional capital investing. But, insofar as there is such a demand for higher pay as a result of past time spent gaining skills, that demand can simply be represented as a relatively higher minimum amount which the worker will demand, in which case the basic proposed model holds up.

At any rate, this helps (I think) to explain why there might be disparate tax rates for income and capital gains. Given the different reasons behind these taxes, as well as the thought that, under some conditions, income-earning will not be sensitive to higher taxation as long as the worker is allowed to earn above his minimum demand, then it make sense both that there would be a difference, and that we might see higher income tax rates relative to capital gain rates.

The Problem
The above sets the stage for the following question: how to treat money earned by partners directly as a result of an investment’s performance, where such performance is attributable in some relevant degree to the skill, foresight, or talent of the partner, but where the person did not contribute capital (as traditionally understood: money, property)? In case this seems too abstract, imagine, for example, the case of Developer and Investor. (In the vein of giving credit where due, this hypo, like my awareness of H.R. 1935, basically comes from my Real Estate Development class, developed and taught by Richard Daley.) Developer is a real estate construction expert, someone skilled at identifying profit-making opportunities in the tricky real-estate development business, and someone skilled at actually making those complicated projects successful through his own talent, skill, and foresight. Developer identifies a particular opportunity. To make this opportunity work, Developer will need $4 million of cash (i.e., traditional capital). Developer has only $1 million on hand, and so he brings in Investor. Investor agrees to provide the additional $3 million dollars. Thus, Developer contributes 25% of the capital, and Investor 75%. Developer and Investor need to agree, however, on how the profits from the investment will be split; in the real world, Developer will always get more than 25% in view of the skill and ability which he brings to the project. Let’s say that the agreement is for a 50/50 split: thus, Developer gets 50% of the profits at the end of the project, as does Investor. If the project generates $5 million in cash, that will mean $1 million in profit to be split: Developer will get back his capital investment plus $500k, as will Investor. The essential question is this: ought Developer’s $500k be taxed as income or capital? (Currently, it is generally taxed as capital, but a current Congressional proposal—H.R. 1935—would alter this by taxing it as income, at the higher rate. I’ll call this the “proposed rule change.”)

Point: Tax this Stuff as Capital Gains!
An argument in favor of capital gains taxation in this case might go like this: the realization of Developer’s $500k is subject to entrepreneurial risk; it will not be realized unless the investment is successful. If the investment goes sour, that money will not be there. And, it might be thought, the right to money which is tied directly to the performance of an investment in light of "equity" contributed (in this case, "sweat equity," but why quibble?) is just profit, or capital gains.

Moreover, Develolper's $500k will clearly be a part of the total profit ($1 million) of the total investment ($4 million). Under a capital gains tax, the total return on the hypothetical project would be $850,00 ($1M less the 15% tax). Under a regime where Developer’s “promote” return—the money he gets above his 25% traditional capital investment—is taxed at income tax rates, the total return on the hypothetical project would be $800,000, for the same $4M investment.* So, for the same $4M investment with $1M in pre-tax profit, taxing Developer’s “promote” (or extra above his 25% traditional-capital investment) at income tax rates means that the total take-home profit on the project is $50,000 (or a more than 1%-point difference in return on investment for the project as a whole). For some marginal projects, this could be the difference between the project getting done or not. But this looks like a capital-gains-type taxation effect. The rate at which that "promote" money is taxed will, ex ante, determine which projects are economically viable, and hence, which projects get done. In other words, the effect of taxing that money will have precisely those effects we paradigmatically attribute to capital gain taxation: it will lower the effective rate of return on any investment structured in this way, and thus will disincentivize some such investments (where the riskiness of the project demands a higher rate of return for the given capital investment).

Counterpoint: Tax this Stuff as Income!
Here’s the counterpoint argument in favor of income tax-rate taxation on Developer’s “extra”: the “extra” which Developer earns is money earned for the value of services rendered. But there is nothing about these services that can’t be represented as a demand for some minimal pay in exchange for time. (“Developer” could stand here for a group of people.) This minimal pay could even take into account the extraordinary special skills of Developer, honed over years of practice. But as long as Developer is compensated for his time equal to or greater than the minimum pay he is willing to take for that expenditure of time doing those Developer-type tasks he does, then he will work. As long as his pay is at or equal to the amount he demands for his time, the project will get done, or, anyway, it will make sense for the project to get done in terms of the capital’s demand for return and Developer’s demand for compensation in light of his time. (The project may not get done if there is some other project offering even more compensation in light of the Developer’s time—but, arguably, this exactly the result we should generally prefer: that the Developer’s time is used where it offers the most value.) So, there is no objection to taxing him at a rate higher than his minimal demand. No projects will be unfortunately affected by the prospect of such taxation.

Of course, there’s a small wrinkle here—Developer will not receive his pay for his time if the project fails to turn a profit. Consequently, it makes sense for Developer’s assessment of the value of his time to reflect some amount that accounts for this particular cost or risk. In this sense, Developer is investing his time as capital, taking a risk with it (the risk of wasting time), and looking for some minimal level of return to justify that risk. But, again, this discounting can be reflected simply in a higher demanded minimum pay for his time. And if we knew what this number was—and surely there will ordinarily be some such number—then we could tax his pay to that level with no risk of disincentivizing his socially useful behavior. As in the case of income taxing generally.

Another way at the same point: consider that Developer is the only person in the above scenario whose “profit” is affected by the proposed rule change. Investor’s profit remains the same; thus, from Investor’s viewpoint, nothing in the rule change will affect his investment decisions. The return needed by Investor for the risk of his capital is either there or not, and the way in which his partner, Developer, is taxed will have nothing to do with it. On the other hand, Developer will invest $1M for the prospect of what looks like a $500k profit. But, given the facts, it would be silly to think that this meant Developer’s capital demanded a 50% profit to be invested, while the capital of his partner, Investor, demanded only about a 17% profit. There is no possible reason why Developer’s capital, as capital, would be so much more valuable per unit than Investor’s capital. Thus, the alternate picture really is more appealing: what’s really going on here is that Developer is demanding a certain rate of return for his capital (to be precise, 17%), and a certain amount of value for his time in connection with the project (a number which can’t be expressed as a rate, but is rather some absolute amount). At the moment, we don’t know precisely the number by which the amount actually demanded for his time exceeds the minimum amount he would be willing to settle for. But if there is that extra room, it could safely be taxed with no danger of disincentivizing his socially useful activity. The Developer will still work, since he is, ex hypothesi, being permitted to keep the money he needs to make him give of his time.

Yet another way to get at this: in the argument for taxing Developer at a capital gains rate, it was a mistake to think that the total return on capital was being reduced. The return on capital was staying the same – 17% (which we must say unless we ridiculously assert that Developer’s capital was more valuable per unit than Investor’s capital); what is being reduced by the income tax is not the return on capital but the Developer’s absolute compensation for his time.

Further, the "sweat equity" idea is seriously misleading in this context. It is of no account at all that the Developer's work “made” the investment successful, because exactly the same thing can be said for the time of any worker, at least in the private sector, however it is that that worker sees himself as an entrepreneur (or not). No worker should be kept on where he does not provide value to the employer, i.e., where he does not make his employer’s investment (in his very business) more valuable. And, in a rational business, such workers are (over the long run), not kept on. Yet, we don't take these facts ordinarily to provide a reason to tax income at a capital gains rate (or on a capital-gains theory), and there's no clear reason to do so here.

The Tentative Conclusion
The income-taxation on Developer’s “gains” appears to be supported by policy considerations at least as sound as those which presently support income-taxation in general, at least in theory. So, that means that generally, money paid for the success of an investment to a person in light of their non-capital contribution to that investment should be taxed like income, with perhaps some discount for the risk of uncertainty that that money will never be paid (in the event that the investment sours).

One particular theoretical insight of the above is that capital requires a rate of return in exchange for its productive use, while workers require an amount of money in exchange for their productive activity. Rates and amounts being fundamentally different kinds of things (at least it would seem so), it should not surprise us that the problems of taxing capital really are fundamentally different than the problems of taxing workers in light of the goal of incentivizing private-sector socially-useful activity.

----
* Investor’s $500k is $425k after 15% taxation; Developer’s $250K (associated with his capital investment) is only $212.5K after 15% taxation; Developer’s other $250k is only $162.5k after 35% income taxation. 425+212.5+162.5=800.

When religion goes wrong...

2009-10-19T15:16:00.000-07:00

If you've been awake and breathing for the last few years, then you've probably noticed the zeitgeist's concern for issues and problems of religious faith. (My theory, for what it's worth, is that this is fallout from 9/11, and from renewed American (and world) engagement with the forces of religious extremism.) Among these "problems of religious faith" is the question of whether religion naturally tends towards extremes—whether, solely in virtue of being religious (as opposed to being poor, mal-educated, disadvantaged, or oppressed), one is more likely to engage in socially-destructive behavior of one sort or another.

On this question, there are those, see Sam Harris and Christopher Hitchens, who take a clearly pessimistic viewpoint. They make two broad points in support: first, if you actually read most of the religious texts which believers profess to take as authoritative, and (crucially) if you take those texts literally, then there is no end of immorality treated as morality in religion. (Hitchens offers the line that the Old Testament God is the “most immoral character in all of fiction.”) Given this, Hitchens and Harris suppose that the miracle is that more religious people aren’t extremists. But there is usually a second thought in support of the view that religion naturally conditions extremism, along these lines: there is something about the kind of believing that is religious believing that exemplifies a sort of objectionable epistemic irrationality or, alternately and what is not quite the same thing, an objectionable attitude of dogmatism or epistemic close-mindedness. The thought here is that religion cultivates bad habits of mind in one way or another, and those bad habits of mind can’t help but have some bad social effects (ranging, perhaps, from a regressive push for creationism in schools to suicide bombers).

The pessimism of Harris and Hitchens at least raises a question. This question of the social effects of religion is, of course, basically empirical, and it is not a completely settled one as far as I know. It is very important to settle the question, of course, since settling it will have important social policy ramifications.

In the meantime, however, we are left only with the theoretical considerations (of the sort Hitchens or Harris advance), and individual cases of which to make sense. One of those individual cases is the sad case of Matthew Murray, who attempted a mass-shooting spree at a ‘charismatic’ evangelical Christian church in 2007. Murray was a psychologically-disturbed Satan-worshipper, and, as such, probably not a good sample representative of the religious community. Nevertheless, the portrait of Matthew Murray painted by the Nation in a recent article is revealing, and it is hard to shake the feeling that, but for his experiences as a child with more mainstream religion—his parents were conservative, homeschooling Pentecostals of a fairly common kind (I knew dozens of such families growing up in Pennsylvania and then Ohio)—Murray either would have been far more mentally stable, or his instability would have taken a far more benign form. As told by the Nation article, it is plausible to see Murray’s later nightmare descent as a reaction against the stultifying, often stupid, authoritarian morality of his parents and religious community. Somewhat chillingly, a psychologist specializing in the problems generated by religious fundamentalism (of the sort Murray grew up with) identified Murray, pre-shooting-spree, as deeply troubled and in need of help, and tried to help. (Unfortunately, without success.) Such a professional might be a person capable of providing real insight, but this psychologist was later marginalized by a media clearly uncomfortable with the implication that Murray’s religious upbringing might have had a hand in his later acts.

And that is unfortunate, and an abdication of journalistic responsibility. The easy story is the sensational story of how a crazed gunman murdered two people at church. But the story that needs to be examined, given the urgency of the larger question, is whether social conditions having to do with religion played a hand. This question makes many people squeamish and uneasy; the fear, probably, is that this real examination could not avoid illegitimate or pointless religion-bashing of a sort that would be insulting to many decent people. And, in the hands of some (like Hitchens), it would, undoubtedly. But this is not the only way to pursue such a story; one could pursue the story in an accountable way without pre-judging whether something positive of some religious practice could be salvaged (if, indeed, religion is to blame). One could allow, in other words, for distinguishing between better and worse forms of religion, or (as Daniel Dennett puts it in Breaking the Spell) between socially benign and toxic forms of religion. Certainly, there is no good reason to avoid any engagement with the question of what accounts for the difference between the one and the other.

A good story about bad teachers...

2009-10-19T14:43:00.000-07:00

Good teachers in elementary school are essential if children--especially minority or disadvantaged students--are to have a shot at obtaining a quality education, and all of the opportunity and well-being that entails. They* say that three bad teachers in a row pretty much guarantees that a disadvantaged student will never excel academically.

These facts raise a related set of problems:

- how best to ensure a supply of good teachers?
- how best to measure teacher performance?
- how best to get rid of, or reform, bad teachers?

That last question is the topic of a compelling recent New Yorker article. The writer describes one particularly bad way of getting low-quality teachers out of the classroom. It's a worthwhile read. I'm all for due process, but this article describes years of wrangling and waiting to resolve the cases of teachers suspected of being sub-par. It's the sort of article that makes one angry at the stupidity of an educational system whose last concern, in some respects, is the education of children. The article's author pretty much blames the teacher's union for the bad state of affairs, and it seems to me that he builds a plausible case, although it is worth bearing in mind that teacher's unions don't ordinarily bargain with themselves--somebody on the opposite side of the table had to agree to this ridiculous system. At any rate, it seems that there should be a way to protect teachers' interest in due process without going to such extremes.

But read the article for yourself...

* - Those among my acquiantaince who would seem to know, including a law professor and a school principal.

And on a related epistemological point...

2009-10-16T20:10:00.000-07:00

I would like to think that is completely rational of me to affirm both that:

1) The last song I produced is among my best, and

2) I will probably someday deny that the last song I produced is among my best, and hence, given my accurate judgment, the last song I produced is probably not among my best,

even without assuming that all of my later productions are better than any earlier productions. (In other words, I don't change my mind in 2) simply because I have since produced even better songs.)

However, a puzzle arises here somewhat similar to the Preface Paradox. Particularly, in affirming both 1 and 2, I seem to be committed to inconsistent claims about the quality of the last song I produced--if not directly, at least on (to me!) initially plausible assumptions about my own good judgment vis-a-vis the quality of the last song I produced. Having repeatedly listened to it, I have reason to affirm that the last song I produced is among my best. And I really do believe this, actually; I'm not smuggling in any kind of mental asterisk in the content of the judgment. On the other hand, I know that I have felt this way before about then-recent productions, and have usually come to revise my original self-laudatory judgment. This gives me a reason to suspect, on inductive or probabalistic grounds and given that I trust my own judgment here, that my last song is not among my best. Nevertheless, despite this, I still simply can't shake the feeling, at this moment, that the last song I produced really is among my best. Having tried, I can't reflect my way out of my present judgment (all that happens is that I come up with even more reasons in support of the judgment); it is, thus, reflectively endorsed. Consequently, it appears that I am bound to think both that my last song is a) among my best and b) probably not among my best.

What concerns me as an (amateur) epistemologist here, however, is that I don't actually think it can be rational of me to affirm contradictory propositions at the same time. If so, then it looks as if I am being irrational. Worse, I find myself with no way of avoiding this seeming irrationality, since I am at present unable to will myself to any different judgment. (And I think there would be something wrong about willing judgment in this way anyway.) I say this is "worse" because it happens to be the case that I'm committed to being rational, and I think that, as a rational creature, I should not be bound to be irrational in this way.

True, I may have reasons for affirming both propositions at the same time. However, if rationality is about or partially consistency of thought--as I happen to think--then this consideration isn't enough to save me. There may be reasons enough to affirm each of a contradictory pair of propositions, but it is ultimately nevertheless inconsistent to think both some proposition p and its negation (or probabilistic negation). So, if there is to be a story about my rationality here, it can't just be about my grasp of independent reasons for each of my seemingly contradictory beliefs.

Here's one half-baked thought for a philosophical way out: it might be that I don't actually believe contradictory propositions here. Instead, what is going on is that I have 1) a belief about the quality of the last song I produced (that it is among my best), and 2) a belief about the quality of my judgment when judging recent productions (that it is of dubious quality). On this view, the content or propositional object of each belief really is a different kind of content, and thus not the sort of contents that even could be evaluated for inconsistency with each other. And with no question of contradiction or inconsistency, my concern about irrationality dissolves.

Notice that we do, after all, sometimes evaluate the quality of judgment itself; in law, for example, we want judges with good judgment and will criticize judges with bad judgment; and we further might have the sense of a judge having good or bad judgment independently of however he or she decided any particular case. Another example: we all know that some smart people can be good at theory, but rotten at real-world application--which is just another way of saying that those people are bad at judgment. (Kant makes this sort of point in his essay "On the Common Saying that This may be True in Theory, but it Does not Apply in Practice.") So, given that we have this general legitimate practice of evaluating the quality of our judgmental capacities, why then shouldn't I form an opinion of my own ability to judge the quality of my recent song productions? And whatever that opinion might ultimately be, it is simply a mistake, although a tempting one, to think that my opinion in this matter has anything to do with the particular content of some particular judgment about the quality of a recent production as such.

Of course, if having a bad opinion of my own capacity for accurate qualitative judgments of recent productions entails some particular judgment about the (probable low) quality of a particular recent production, then my half-baked theory doesn't save me at all. In that case, I would still be in the position (at least once I realized or subjectively grasped the entailment) of believing inconsistent propositions. But, happily for the moment, I don't see any reason to suppose such an entailment. You and I may both be absolutely confident that I have zero ability to accurately judge the quality of my own recent songs, but that tells us nothing about the quality of the songs themselves.

Song of the Week

2009-10-16T19:51:00.000-07:00

Well, I couldn't hide my sappy singer-songwriter side forever, as evidenced by this week's song:

Download here.

In other news, once again I am sorry for a sparse week of posting. I actually have stuff to blog about (stuff about which to blog?), but this whole law school thing has been sapping an inordinate amount of time. (As opposed to an ordinate amount of time, of course.) Okay, that's not actually the whole truth; I spent a few hours this week mixing some new music also. But, in my defense, it's close to the best thing I've ever produced. Although, a) I always think that about my last song, and b) I'm probably not saying much in any case. I do perpetually feel the need for a real producer to improve my hacking. Any takers?

... and registration is now closed ...

2009-10-14T12:34:00.001-07:00

Well, I am now being informed that registration for the Scalia symposium is now closed (and this less than four hours after registration opened). If that's not some kind of record, it should be.

Scalia comes to Ohio State

2009-10-14T12:16:00.000-07:00

Supreme Court Justice Scalia is coming to the Moritz College of Law at Ohio State and registration is now open. (Attendance is limited.) Scalia's appearance is in connection with a Symposium organized by the Ohio State Law Journal, which also recently hosted Justice Ginsburg.

Song of the Week

2009-10-09T19:31:00.000-07:00

Sorry for not posting much this week. I was feeling a bit under the weather. But here is the song of the week:

Download here.

This one is in the New Agey vein, from 2005.

Song of the Week

2009-10-02T14:07:00.000-07:00

This week's song-of-the-week is brand new, as in I just finished mixing it a few minutes ago. The lyrics are from Elijah Blower. (Unfortunately, his blog appears to be down at the moment.) Here it is:

Download here.

Respect for Religious Belief and Epistemological Relativism

2009-09-29T16:59:00.000-07:00

Brian Leiter drafted an article arguing that religious belief is not the sort of stuff that deserves serious respect, as by a "legal regime" (read: First Amendment jurisprudence). In advancing this argument, Leiter bravely offered a definition of religious belief marking out two characteristics which, supposedly, distinguish religious beliefs from other sorts of beliefs: first, religious beliefs make categorical demands on action, and, second and most importantly for present purposes, religious believing is dogmatic in the sense of being immune from ordinary (and proper) rational critique.

In response, Jeffrey Lipshaw offers a critique of Leiter's definition, and attempts to argue against the sensibility of blaming (or not respecting) religious belief for being dogmatic. He takes aim at Leiter's commitment to a principle like the following:

"All beliefs must [should] be revisable in light of evidence and reasons."

(Let's call this the Principle of Doxastic Revisability.) In Leiter's telling, this is the Principle on which religious believing specially fails, and for which religious believing can therefore be blamed. Lipshaw asks and answers: "Is it Leiter's position that [the Principle of Doxastic Revisability] could be revised in light of evidence and reasons? I think not." Lipshaw goes on: "Any exercise in conceptual thinking requires some foundational belief that is both categorical and insulated, for all practical purposes, from evidence and reasons."

With this, Lipshaw means to question something like the Principle of Doxastic Revisability. Put in its strongest form, I think the key move involves making (or trading on) a denial like this:

It is not possible that all beliefs could be held revisable in light of evidence and reasons (because, supposedly, there must be some wholly arbitrary starting point from which to launch the revisionary work of evidence or reasons).

If so, then a fortiori, there can be no basis for criticizing a set of beliefs (like religious beliefs) for failing to be revisable; hence (to make a long story short), shame on Leiter.

On Lipshaw's account, there is, at the end of the day, merely different coherent systems of thought in which, for each system, some arbitrary points will be fixed and beyond revision. But then, again, blame becomes impossible, and the failure to respect becomes unprincipled:

"If we have neither divine voices nor random chance as our practice, but instead a coherent set of concepts in religion or philosophy that cashes out in choosing among conflicting demands for action, why is it any less worthy of respect that one coherent set comes from religion and the other from science or common sense?"

Now, to explain why I think Lipshaw wrong and confused:

Lipshaw is wrong to suppose that "[a]ny exercise in conceptual thinking requires some foundational belief that is both categorical and insulated, for all practical purposes, from evidence and reasons." This "requirement" of insulated foundational belief may be true for any particular "exercise in conceptual thinking," but what reason do we have to think it is true in all cases? It is true, of course, that if we are puzzling over something, our puzzling, if it is to be productive at all, will need to take some things as a given. But such "givens" need only be given then, in that particular instance of reasoning or evidence-giving. At other times, those "given" things can certainly themselves be questioned. It is only for the sake of convenience (and our own practical limitations) that we do not try to resolve all problems all at the same time. And so, yes!- even Leiter's Principle of Doxastic Revisability may be subject to itself. If, for example, Lipshaw could articulate a real reason why the Principle of Doxastic Revisability is not possible, then Leiter would be bound to respond to such reasons in some appropriate way-- either by abandoning or revising his Principle. And moreover, if Leiter dogmatically stuck to such a principle in the face of a strong reason to abandon it, he would surely deserve some measure of blame or loss of reputation. We may all have 'fixed' points from which we reason in some sense, but that does not mean that we all have 'fixed' commitments in the crucial sense of being dedicated to holding those commitments come any (perhaps unknown) reason or evidence.

In other words, Lipshaw hasn't given a reason that the Principle of Doxastic Revisability is false or impossibile. And if it is possible, and if it is true, then it seems like a perfectly fine ground from which Leiter may blame (or fail to respect) dogmatic religious belief.

I think this is enough for the main point, but I am also slightly bothered by Lipshaw's apparent thought that everyone has some crucial element of arbitrariness in his or her beliefs (of the kind that makes every coherent web of belief the equal of every other coherent web).

Undoubtedly, it is true that we all have starting points when reasoning or offering evidence about something, and true also that, for most of us, many of these starting points will remain perpetually unexamined. But do these facts necessarily make those starting points "arbitrary"? In the sense that most of us lack any conscious awareness of the justification vel non of those starting points, yes. But this merely psychological sense of "arbitrary" is uninteresting; what Lipshaw really needs to support a claim that we are all in the same unprincipled boat is something stronger, a sense of 'arbitrary' that means something is not justified, legitimate, or principled at all. And, in this sense of 'arbitrary,' I don't see any reason to think that we are all of us most of the time 'arbitrary' in reasoning or in offering evidence. Lipshaw certainly hasn't offered such a reason.

An illustration: suppose it is the case that the Principle of Non-Contradiction (PNC) is a legitimate, justified, true principle. In what that legitimacy consists, we will not say here; only that it is a legitimate and true principle. Then, in using PNC as a "starting point" or ground in reasoning about something, it does not impugn our reasoning at all to say that our use of PNC is arbitrary in the psychological sense. The reasoning still stands--whether it is consciously appreciated so to stand or not--as legitimate (to some crucial extent, assuming we haven't misapplied PNC). There is no theoretical need here for talk of coherency or webs of belief, no need for epistemological relativism ("each coherent web of belief is the equal of every other"), no need for a pernicious rejection of any idea of legitimacy in thought--which is what epistemological relativism amounts to at the end of the day.

Sandel v. Singer

2009-09-28T12:31:00.000-07:00

After my last post recommending Michael Sandel's online course in moral philosophy, I clicked around some YouTube links and found a debate between Sandel and Peter Singer. If you are used to watching Peter Singer eat his opponents alive, then this will strike you as something different. I don't mean to imply that Singer doesn't often have good answers to Sandel's push-back against Singer's underlying preference-utilitarianism, or that the tone of the debate isn't respectful, but Singer does get pressed, and he does not always have satisfying answers.

For example, in taking preference-satisfaction to be the thing which makes an act morally right, Singer resists the notion that preferences should themselves sometimes be morally appraised. Rejecting this, Sandel offers various examples of cases where we object to certain kinds of preferences as the things they are in themselves (and where we take those judgments, in turn, to be appropriate). Sandel suggests that in cases where people derive pleasure from the suffering of other sentient creatures (as in cockfighting, bear-baiting, or feeding Christians to the lions), or in the case of racist preferences, we are inclined to condemn these preferences for reasons having nothing to do with consequences. On Sandel's view (which I share), a preference for intense pointless suffering is intrinsically morally objectionable; it is objectionable simply in view of the sort of preference it is, and the cultural consequences of such a preference need not be teased out in order to be appropriately confident in its objectionability. In general, the mistreatment of a minority group does not become morally justified where the minority is small enough, the pro-mistreatment preference of the larger majority strong enough, and there are no other bad cultural effects to account for.

On this point, at about 58 minutes in, there is this exchange (rush transcribed by yours truly):

Michael Sandel: What about character, virtue, attitudes, dispositions as an independent moral concern?

Peter Singer: I mean I share your idea that there’s something that we find disquieting about the fact that people are taking pleasure in cruelty, but I don’t know how to examine that intuition in such a way that proves that it's an independent value, and not simply something that I have and that I hope other people have because of [reasons having do with the pain to the animal and the larger bad social effects of keeping people around with those sorts of preferences]. We have evolved in circumstances . . . and our culture has developed in circumstances where these consequences have followed. So it wouldn’t be surprising if we have this sense that something is intrinsically wrong, and yet that sense is not reliable if we reflect more carefully on what the values are that we really want to hold.

In fact, I think Singer's claim -- that considerations of character, virtue, attitudes, et al., do not implicate values which we would reflectively endorse -- is simply false. What makes these values pressing is precisely that, on reflection, we can't get away from these, or, at the very least, from some concern other than preference-satisfaction. In this vein, it's a positive embarrassment to Singer's utilitarianism that, for some hypothetical counter-examples, it seems that he must find mistreatment of others to be morally obligatory.

This isn't to deny the truth of the other, anthropological, bit of Singer's reply. No doubt there is a true naturalistic story that can be told about the origin of our moral intuitions vis-a-vis character, dispositions, and the rest, and probably that story has to do with the experience of certain consequences. And Singer might also be right that we (presently) lack a satisfying philosophical account or justification of these intuitions.

But these points alone aren't enough for Singer's conclusion; they aren't enough to deny any place for moral reasons of the kind having to do with character, dispositions, virtue, et al. The existence of a psychological or anthropological account of my judgments (moral or otherwise) doesn't provide any information at all as to their lack of being principled in some deeper way, and the absence of a satisfying philosophical account for these intuitions might mean only that we don't have enough people on the problem. (Research dollars for philosophy needed?) In the meantime, the essential question is one of self-trust: all things being equal, is it proper to trust one's own judgments? Must the truth of the judgments be 'proved' first, or shown to be the result of some reliable cognitive process, as Singer suggests, or is there instead properly a presumption in favor of self-trust even without such proofs or demonstrations? If there is a presumption in favor of self-trust (under an 'all-thing-being-equal' condition, no doubt), then it seems to me that that's all we need in order to recommend some respect and place for the values revealed by our judgments in particular situations, even where such moral content does not fit easily within a theoretical framework.

Free Course in Moral Philosophy

2009-09-27T15:28:00.000-07:00

For a very good, free, introductory course in moral philosophy, check out Michael Sandel's professionally videotaped course from his Harvard undergraduate class, Justice. Sandel is clearly a gifted teacher, and particularly good in drawing out moral principles and reasons from particular judgments of hard cases, which then get questioned in turn.

Good stuff!

Song of the Week

2009-09-25T16:26:00.000-07:00

Every Friday, I'll post an original musical composition. Lacking pride in authorship (obviously, in some cases), please critique freely. Here is this week's contribution:

Download here.

This was an early composition experimenting with layered keyboard effects. I also half had the idea of producing something to mimic the New Age feel of Enya. In the end, the composition turned out to be too repetitive, but it might have a few good ideas.

The ethics of sentence reduction for the mere fact of a guilty plea

2009-09-25T06:04:00.000-07:00

Suppose a defendant pleads guilty to a crime, and that the judge has some discretion in sentencing. Should the judge impose a lighter sentence on the defendant than would otherwise have been imposed solely for the reason that the defendant, by pleading guilty, has saved the state considerable resources by sparing it from trial? Conversely, should a defendant who insists upon going to trial where conviction is likely have a relatively heavier sentence imposed solely for the reason that the defendant, by insisting on a trial, has cost the state considerable resources in a trial?

It is clear to me that many stakeholders in the criminal justice system (prosecutors, police officers) would affirmatively answer both of the above questions.

This, to me, seems wrong in a deep way. All things being equal, of course, we prefer to expend less of the state's resources rather than more. The problem here, however, is that all things are not equal; in particular, defendants have a procedural right to a trial. Why should a defendant be penalized for exercising that procedural right? Why should the state's cost of trial fall on him particularly, in the form of a higher sentence?

It doesn't seem any good answer to say, "Because the defendant has the power to avoid the trial by pleading guilty, and where the defendant recognizes the probability of his conviction anyway, it's just wasteful for him to make the state endure the cost of a trial." If blame follows directly from causal ability to avoid a trial in this way, then the state is also propertly blameworthy for "causing" the trial, insofar as it could have avoided the trial simply by not arresting and charging the defendant.

Moreover, this sort of sentencing factor has nothing to do with the just deserts of the defendant for the crime he committed, as that crime. And, surely nobody deserves punishment merely for having cost the state resources in virtue of exercising a right: we don't punish social security recipients, welfare recipients, those who call 911 for a legitimate reason, or licensed users of state roads for having cost the state money.

This leads me to think that sentencing a defendant more harshly merely because that defendant caused the state to go to trial is simply unjust and inconsistent with our own deeper principles. It's punitiveness without an appropriate object, engendered perhaps by a dislike for whatever bad thing the defendant has in fact done, and a failure to separate that bad thing, whatever it is, from the legitimate exercise of a right which nevertheless has a social cost.

Science News Letter to the Editor

2009-09-24T07:45:00.001-07:00

My undergraduate professor and thesis adviser, Hank Kreuzman, had a letter published in Science News. The letter, written with Wooster geology professor Mark Wilson, complained of an editorial whose view was apparently that, for the most part, philosophers do nothing but screw up science and get in the way. It was the sort of editorial bound to raise some hackles, and I think the response of Krezuman and Wilson is appropriate.

The original author, Tom Siegfried, offers a petulant response which makes me feel bad for him. The response betrays an unfortunate sort of philosophical education-- the kind that made no serious attempt to wrestle with or charitably interpret difficult philosophers, instead reducing those philosophers to mere punching bags. If, for example, you find Kant or Comte difficult, the appropriate response is not to assume that these guys were commited to implausible or grand claims without reason, but to work at it, to find the charitable interpretation. In a way, I think Siegfried was cheated, and I feel bad for him.

Incidentally, at some future point, I'll post about Kant's philosophy...

The ACLU and the Pace Schools

2009-09-23T19:47:00.000-07:00

A faithful blog-reader asks for my opinion of the kerfuffle between the ACLU and the schools in Pace, Florida. Basically, the ACLU is suing the Pace schools for violating the First Amendment rights of students. The accusation is that teachers and administrators have been leading student prayer.

As it happens, I have a forthcoming article on First Amendment law. In that article, I argue for the inclusion of religious content in school curriculum. (I'll blog about that some other time.) But, here, the story is different.

As I explained to my inquirer:

I don't know much about the Pace case. My understanding of the law is basically that -- prayer led by or encouraged by school officials is not allowed (and I think that's an appropriate rule); private prayer in private time away from students, or some form of non-officially sanctioned student-led prayer, or prayer in non-official school groups (i.e., -- groups use school property but have no association or sanction with the school) is or can be fine. The Supreme Court's worry is to avoid pressuring students who do not share the religious beliefs of the teachers into acting as if they do share those beliefs.

In the case of Lee v. Weisman, the Court held that a prayer by a clergyman at a graduation ceremony was inappropriate because of the "subtle coercive pressure" which bore on some students. The idea was that there was pressure for students to conform, and to act as if they were praying with the clergyman (or at least respecting the prayer). I think this was the right decision. If everyone else stands up, bows their heads, and says "amen" and you remain seated, you will be looked upon judgmentally by the rest of the group. (All groups dislike non-conformers.) Knowing that this will happen, there is pressure to pretend to be praying, or at least to pretend to be respectfully and attentively listening. This pressure will be there even if it is against your conscience to pray or appear as if you cooperating with the ritual. What makes the pressure objectionable is that it is state-sanctioned pressure to conform to a particular religious ritual which may be against your conscience (or somebody's conscience). And, fortunately, such pressure brought to bear by the official organ of the state is deemed to be an unconstitutional establishment of religion.

Of course, you might think that if a person really objects to the prayer, the only thing to do is for the objector not to cooperate. They can resist, and remain seated, and damn the dirty looks. But the question is, why should they have to have that sort of internal fortitude? Why should the state be allowed to put children in that position?

Of course, there are lots of fundamentalist Christians (particularly) who feel differently and complain that school prayer isn't allowed in schools. Frankly, I greatly suspect hypocrisy in many of these cases. I wonder what fundamentalist Christians would do if an Imam was invited to give the call to prayer in schools, before leading the class in the recitation of Allah's praises? In that case, I suspect that many complaining Christians would be happy for Lee v. Weisman. Of course this is just a suspicion, and an admittedly uncharitable one. However, there is some evidence that when the shoe is one the other foot--when, say, these (same?) Christians are faced with an expression of approval for atheism--the reaction has not always been one of uniform live-and-let-live mildness.

Finally, in the Pace case, some school leaders were threatened with jail after they led a prayer. Just for the record, they didn't face the threat of jail because they led prayer as such. They faced the threat of jail because they allegedly violated the order of the judge in the case, which is contempt of court. That issue has nothing to do with persecuting some poor administrator for their religious zeal, and is all about basic respect for the law. Either you recognize the authority judges have to decide cases and issue injunctions, rightly or wrongly, or you don't. If you disobey the court, you takes your chances. Them's is the rules. (And-- probably good rules -- you wouldn't want to live in a society where compliance with the law was, in general, purely optional, at least if the society and its laws were basically decent.)