Maverick Philosopher

Morality and Legality: Three Principles

(show)

On my view morality and legality are both 'notionally distinct' and 'extensionally distinct.' Thus I maintain both that the concept or notion of a morally qualified action is distinct from the concept of a legally qualified action, and that there are instances of each concept that are not instances of the other. If the following three principles are defensible, then the notional and extensional distinction between morality and legality is defensible.

P1. Not everything morally impermissible should be legally impermissible.
P2. Not everything morally obligatory should be legally obligatory.
P3. Not everything morally permissible should be legally permissible.

Ad (P1). This could be put idiomatically by saying that not everything morally wrong should be illegal. I hope you will agree with me that drinking oneself into a stupor is morally wrong. It's a Friday night, you are alone, you stay in your house the entire time, but you down a quart of whiskey. I hope you will agree with me that this is morally wrong. (I could give an argument, but it belongs in a separate post.) Though morally wrong, such behavior should not be illegal. If you don't like my example, you are invited to concoct one of your liking that makes the same point.

Why should not everything morally wrong be illegal? The positive law is made by human beings and enforced by state power. But it is notorious that human beings are to varying degrees morally corrupt and that they are therefore strongly tempted to misuse any power that they acquire. Note that I do not say that power tends to corrupt its possessors, but that our antecedent corruption inclines us to the misuse of such power as we possess. (Lord Acton take note.) This misuse of power is especially clear in the case of the agents of the state. (Ever have a run-in with a cop, a sheriff, an IRS agent who overstepped the bounds of his legitimate authority?)

Given the egregious violations of individual liberty including mass murder that state agents have been known to commit, reasonable people support limited government. One way to limit government is to restrict its sanctions to behavior that impinges upon public welfare. Thus there needs to be laws against drunk driving. But laws against private drunkenness (as in my example above) tend to give too much power to the state, besides being unenforceable. Laws that are unenforced, however, tend to breed disrespect for law. Without widespread respect for the rule of law, all the laws in the world will not contribute to public well-being.

Laws should be few in number, rational in content, understandable by the average citizen, enforceable, and enforced with credible sanctions. So not everything morally wrong should be illegal. 

Ad (P2). If you morally must do (ought to do, are obligated to do, have a duty to do) X, should the positive law require it of you? I answer in the negative. Consider the philosophical/religious duty to worship no such 'false gods' as money, power, sexual pleasure, Lady Luck, but to worship or devote yourself only to worthy objects such as God, truth, justice, benevolence, and the like. I would argue that it is morally impermissible to worship any such thing as money, sex, etc. and morally obligatory to apportion your highest concern only to worthy objects such as truth and justice. But these views of mine, thought rationally defensible, can be opposed with a show of rationality by sincere people. A hedonist might sincerely and thoughtfully maintain that pleasure alone is the good and that there can be no grounded distinctions among pleasures, and that therefore the pursuit of sexual pleasure among consenting adults is a perfectly legitimate and morally permissible object of pursuit. I would consider it better if people devoted themselves to truth over sexual pleasure, but the abuses that would result from using state power to enforce that view of mine would be worse than the positive outcomes would be good.

For a second example, consider the moral obligation to maintain one's physical health by the usual measures including good diet and vigorous exercise. If you value individual liberty and understand what I wrote above, you will not want laws that mandate these measures. (By the way, this is why 'universal health care,' i.e., government control of the delivery of health services ought to be opposed: a government that controls health care will be in a position to demand 'appropriate' behaviors from people including not engaging in activities deemed risky.)

Ad (P3). If an act is morally permissible, should it also be legally permissible? No. Surely there are circumstances in which running a red light is morally permissible. Suppose at three in the morning you slowly and cautiously coast through a red light at a deserted intersection in the proverbial 'middle of nowhere.' Surely that is morally permissible. Yet it ought not be legally allowed: a well-crafted law cannot have a clause that reads, "A motorist shall not run a red light except when it is safe to do so."

For a second example consider that is it morally permissible for some 15- year-olds to drive. But it ought not be legally permissible for 15-year-olds to drive. The same goes for voting. There are 15-year-olds more mature than some 50-year-olds and more fit to cast a vote. Yet it ought not be legal for 15 -year-olds to vote. Finally, it seems obvious that some marijuana use by some people in some circumstances is morally permissible, but it scarcely follows that marijuana use ought to be legalized. What is harmless for some will be dangerous for many. Laws crafted for the common good cannot take into account individual differences.

William E. Mann, God, Modality, and Morality

Vallicella, William F. (2016) "William E. Mann, GOD, MODALITY, AND MORALITY," Faith and Philosophy: Journal of the Society of Christian Philosophers: Vol. 33 : Iss. 3 , Article 8. DOI: 10.5840/faithphil201633368

Available here. A long and meaty review article including a discussion of divine simplicity and Mann's approach thereto.

Moral Progress in the West and its Benchmarks

A London correspondent writes,

A question for you: is there a set of verifiable practices that would act as a benchmark for the Western Enlightenment? I can think of (i) widespread (but not universal) respect for science (ii) separation of church and state (iii) end of judicial torture (iv) abolition of slavery, etc.

1) I will assume that moral progress, both individually and collectively, is possible, both in moral theory and in moral practice. This is not obvious inasmuch as one might insist that while there has been moral change, there has been  no moral progress. Progress, by definition, is change for the better, and a moral/cultural relativist will claim that there is no better or worse with respect moral beliefs and practices.  

2) If moral progress is possible, is it also actual? I would say so.  Holding as I do that slavery is a grave moral evil, I also hold that we in the West have made progress in this regard.  The same goes for penal practices. We in the West no longer punish in the barbaric ways still employed in countries such as Saudi Arabia and Iran.  Example are easily multiplied.

3) Is overall moral progress consistent with a certain amount of moral regress? I would like to say so. Mass murder and mass enslavement in Germany 1933-1945 are recognized in the West for the moral abominations they were. The Germans have come to their moral senses.   But what about the situation in the East under communism, in particular the communism practiced in China as we speak? I am thinking of the forced labor in China's Xinjiang region.

4) We cannot overlook the moral degeneration of the West, which suggests that while we made progress in the West, it is now being undone.  The Biden administration, for example, is the most lawless in American history; as a matter of policy it aids and abets criminality and then lies about what it is doing.

5) As for the benchmarks of progress, the ones listed by my correspondent are essential.  I would also add the following: religious liberty, limited government, the rule of law, equality of all citizens before the law, due process, universal suffrage, open inquiry and academic freedom, free markets, and the right to free speech  and freedom of assembly without fear of reprisal.

"Ignorance of the Law is No Excuse"

AN EMINENTLY REASONABLE PRINCIPLE, but only if the law can be known by the average citizen who exercises appropriate diligence.  For that exercise of due diligence to be possible, however, laws must be relatively few in number, rational in content, and plainly stated.  If that were the case, then ignorance of the law would be vincible ignorance and thus no excuse or defense.  But it is not now the case.  

It Can't Be Legislated

Respect for the rule of law cannot be legislated. A law that mandated respect for the rule of law would presuppose the very respect without which it could not be an effective law. Such respect is among the moral prerequisites of the positive law.

Can One Reasonably Hold that Abortion is Murder but Ought to be Legal?

Victor Reppert poses the following important question on his Facebook page:

What, if anything, is wrong with holding, at the same time that a) Abortion is murder, and b) abortion should be legal?

It's not a logical contradiction, is it? Is it merely counterintuitive? Is it un-Christian?

One way of reaching this position might be to hold that, given a metaphysical or religious perspective, you view abortion as murder, but, living in a society where large segments of the population don't share that perspective, you don't think it reasonable to pass laws imposing that view on the general public.

The propositions in question are not logically contradictory. But one can generate a logical inconsistency by adding an eminently plausible  proposition.  Consider the following antilogism:

a) Abortion is murder
b) Abortion should be legal
c) Murder should be illegal.

The triad is logically inconsistent: the constituent propositions cannot all be true.  

Now (c) is the least rejectable (the least rejection-worthy) of the three propositions. For if the law does not proscribe murder, what would it proscribe? The purpose of the State, at a bare minimum, is to protect life, liberty, and property. (Call it the Lockean triad.) If the State is morally justified, then its passing and enforcing of laws is morally justified. Among these laws are laws pertaining to the killing of human beings. Without going any deeper into it, I will just assert what most of us will accept, namely, that the intentional killing of innocent human being is morally wrong and therefore ought to be made illegal by a morally justified State.

In short, we ought not reject (c). Therefore, one who accepts (a) ought to reject (b). Transforming the antilogism into a syllogism, we get:

Murder should be illegal
Abortion is murder
Ergo
Abortion should be illegal.

Reppert ought to be persuaded by this argument since he accepts the minor and I have given a powerful argument for the major.

Reppert asks whether it is reasonable to pass laws against abortion in a society in which large segments of the population do not oppose abortion.  Well, was it reasonable to pass laws against slavery in a society in which large segments of the population did not oppose slavery?

Suppose we become even more morally depraved than we are now. We get to the point where the majority considers infanticide  morally acceptable. Would it be reasonable to do away with the laws proscribing it?  Or the laws proscribing child pornography? Or rape laws? Should the law merely reflect the going moral sentiment no matter how decadent it becomes?

I'll leave you with these questions.

Democrats as Tribal Termites

Mendocino Joe writes,

Wow, I cannot believe what I am seeing in our country these days.

 

I think your blog post about the Left hating because they need a bogey man after winning the civil rights battle is way too kind. I think we are seeing, in the Left these days, radical Evil from the pit.  We are watching people who are unmoored from any traditional religion or morality, completely unmoored. It is very scary to me. 

 

A lot will depend on what happens today and the days following. If the Republicans cave, and Kavanaugh is quashed, then all hell might break loose.

 

The Democrats are now undeniably a hard-Left party. And as my old friend says, they are "unmoored from any traditional religion or morality."  To change the metaphor, they are termites working to undermine the foundations of our magnificent Anglo-American system of law.

 

A bedrock principle thereof is the presumption of innocence.  One is presumed innocent until proven guilty. The presumption of innocence puts the burden of proof where it belongs, on the accuser, not the accused. Contrary to what some leftist senators are now saying, this is a principle of morality that is antecedent to the positive law. Its application extends therefore beyond the positive law, criminal and civil.

 

But the Dems are leftists out for power any way they can get it. For them the end justifies the means no matter how shabby or absurd.  They ought to be denounced for the termites they are, or, to change the metaphor once more, the scum that they are. 

 

They are termites because they undermine the foundations of American greatness. But why tribal?  Because they vote as a bloc, walking the walking and talking the talk that their tribal leaders have drilled into them. Like good successor-commies, they toe the Party line and submit to Party discipline. There is not a maverick among them. They all will vote to oppose Kavanaugh's nomination.

 

Additional commentary. (HT: Bill Keezer)

 

Angelo Codevilla, Cowardly Republicans Grant a False Premise

 

Scott McKay, The Palpable Existential Danger Among Us

 

Mark Steyn, Hearing the Women, Then and Now

 

An Impending Shooting Civil War?

 

Victor Davis Hanson, Are We on the Verge of Civil War?

 

There follows an excerpt from the fourth hyperlinked item supra.  Would it not be great if there were Republicans who had the civil courage to say the following? (Emphases in original)

 

Let me be clear on this -- if you're bitter that there was no President Pantsuit that's fine.  Losses can be bitter, especially when you really think you should have won.  But no matter what you think by the rules of the contest Hillary lost to Trump -- period.

But if you go beyond being bitter, start up hashtags like "#Resist" and then put that into action both inside and outside the government to disregard and disrupt the results of a valid electoral process you are not only violating the law you are inciting a shooting civil war.

This sort of activity by people inside the government is treading right to if not over the line of insurrection.  The use of government force for unlawful purpose, intentionally, meets the definition; it is an attempt to overthrow the law of the United States by corrupting the monopoly on deadly force that the government has and directing it unlawfully against certain people for political purposes.  This is not a "petty offense"; it is a direct assault on and attempt to overthrow the result of a lawful elective process and according to the above link it's still going on today.

If you're aggrieved by an election's results you have every right to print up a sign and go picket on a public street or other public place.  You can take out all the political advertisements you wish and make your best effort to get a different result the next time around.  But you do not have the right to enter into a restaurant where someone is eating dinner, which is private property, and assault said person because they happen to be a member of that political party.  That is a violation of the law in that it constitutes assault and is begging for an immediate outbreak of violence in response.

Read the whole thing. It's very good.

Of Cats and Mice, Laws and Criminals

Georg Christoph Lichtenberg, The Waste Books, tr. R. J. Hollingdale, New York Review Books, 1990, p. 101:

Certain rash people have asserted that, just as there are no mice where there are no cats, so no one is possessed where there are no exorcists.

Lichtenberg's observation puts me in mind of anarchists who say that where there are no laws there are no criminals.  That is not much better than saying that where there are no chemists there are no chemicals. 

Just as there are chemicals whether or not there are any chemists, there are moral wrongs whether or not there are any positive laws* prohibiting them.  What makes murder wrong is not that there are positive laws prohibiting it; murder is wrong antecedently of the positive law.  It is morally wrong before (logically speaking) it is legally wrong.  And it is precisely the moral wrongness of murder that justifies having laws against it.

And yet there is a sense in which criminals are legislated into existence:  one cannot be a criminal in the eyes of the law unless there is the law.  And it is certainly true that to be a criminal in the eyes of the law does not entail being  guilty of any moral wrong-doing. There are senseless, incoherent, and unjust laws. 

But the anarchist goes off the deep end if he thinks that there is no moral justification for any legal prohibitions, or that the wrongness of every act is but an artifact of the law's prohibiting it.

As I like to say, anarchism is to political philosophy what eliminative materialism is to the philosophy of mind. Both are 'lunatic' positions. But 'lunacy' has its uses.  It is instructive in the way pathology is.  We study diseases not to spread them, but to contain them. We study diseases of the mind not to promote them, but to work out the principles of intellectual hygiene.

____________

*Positive laws are those posited by a legislature. See here:

In general, the term "positive law" connotes statutes, i.e., law that has been enacted by a duly authorized legislature.  As used in this sense, positive law is distinguishable from natural law. The term "natural law", especially as used generally in legal philosophy, refers to a set of universal principles and rules that properly govern moral human conduct. Unlike a statute, natural law is not created by human beings. Rather, natural law is thought to be the preexisting law of nature, which human beings can discover through their capacity for rational analysis.

 UPDATE (1/24). Tom Anger comments:

I agree with what you say in "Of Cats and Mice, Laws and Criminals"; specifically, this:

 

What makes murder wrong is not that there are positive laws prohibiting it; murder is wrong antecedently of the positive law.  It is morally wrong before (logically speaking) it is legally wrong.

 

But I have a problem with the quoted material in the footnote; specifically, this:

 

[N]atural law is not created by human beings. Rather, natural law is thought to be the preexisting law of nature, which human beings can discover through their capacity for rational analysis.

 

I have never been able to accept that view of natural law. Where does the preexisting law come from?

 

My view is that natural law consists of norms that arise from human nature. An example would be the Golden Rule, or ethic of reciprocity. It seems most likely to have arisen from experience and normalized through tacit agreement before it was enunciated by various "wise men" over the ages.

 

BV: Well, if natural law is grounded in human nature, then there might not be much or any difference between what you are maintaining and what the authors of the footnote say.  Both of you would then be saying that law cannot be wholly conventional.

The Stalinization of Trump Derangement Syndrome: "Show Me the Man, and I'll Find You the Crime"

From a Cato Policy Report:

. . . Alan Dershowitz discusses his time litigating cases in the old Soviet Union. He was always taken by the fact that they could prosecute anybody they wanted because some of the statutes were so vague. Dershowitz points out that this was a technique developed by Beria, the infamous sidekick of Stalin, who said, “Show me the man and I’ll find you the crime.” That really is something that has survived the Soviet Union and has arrived in the good old USA. “Show me the man,” says any federal prosecutor, “and I can show you the crime.” This is not an exaggeration.

And now Donald J. Trump, the legally elected president of the United States, is the man.  To prosecute someone for a crime, some crime has to be alleged.  But in this case what is the crime?  Alan Dershowitz raises the question and answers it: there is no crime. 

There is no evidence that Trump or his team colluded with the Kremlin to swing the election in Trump's favor. But even if there were, such collusion would be at worst political wrong doing, not a crime.  This is not my opinion but the opinion of a distinguished Harvard law professor who is not a Trump supporter.  As Dershowitz told Tucker Carlson last night, "I voted for Hillary Clinton very proudly."

Around 3:10 Dershowitz speaks of "hacking the DNA" several times. He means: hacking the DNC, the Democrat National Committee.  Carlson failed to catch the mistake.

I now want to make a point that Dershowitz did not make last night, namely, that phrases like 'hacking the election' have no definite meaning.  You can literally hack into John Podesta's e-mail account, but you can't literally hack an election.  (It has been claimed that the password he employed was 'password.' Could Podesta be that stupid or careless? I am skeptical.)  Of course, you could use 'hack an election' to mean 'influence an election,' but then you will have changed the subject.  Almost all of us, from low-level bloggers to the most august pundits, were trying to 'hack the election' in the sense of 'influence the election.' 

What we have here with the appointment of special prosecutor Robert Mueller is not an inquiry into whether a crime has been committed, but a witch hunt: a search for a nonexistent crime to pin on a much-hated man.

But didn't Trump obstruct justice by firing Comey?  Is that not what is maintained by such powerful intellects as Maxine Waters and Nancy Pelosi? Of course not, as Dershowitz points out at 3:38 ff. Trump's firing of Comey was well within the president's constitutional rights. "Under the unitary theory of the executive, the president has the right to direct the justice department." I would add that the  president fired Comey for good reason.

No doubt the 'optics' were bad: the firing looked self-serving. So the haters pounced suggesting that the only reason Trump fired Comey was because Comey was about to expose criminal acts by Trump.  But that is just nonsense. Again: which criminal acts? 

Even if Trump was sick of Comey and wanted him out for personal motives, he had solid impersonal legal reasons for firing him.  They were set forth in the Rosenstein memorandum.

The Trump haters appear to be committing a version of the genetic fallacy.  The psychological motivation of a claim or action is irrelevant to the question of the truth of the claim or the justifiability of the action.  Had Hillary or Bernie or Jill or Jeb! been president, each would have been justified in firing Comey.  Again, this is because of the availability of solid impersonal legal reasons for his firing.  And you can bet all of Hillary's ugly pant-suits that she would have fired him  had she won as she was 'supposed to.'

Related articles

More Liberal-Left Insanity

On 'Disenfranchise' and Hillary's Will to Power

Is He Your Prophet?

America Was

Lawlessness and Obstructionism Among Beltway Elites

Hugh Hewitt:

Sanctuary cities and marijuana legalization statutes are examples of local and state governments ignoring federal law. But federal authorities and elected officials who vent about those subjects should look to their own disregard of the law. Two recent instances of the lawlessness of Beltway elites concern the U.S.-Mexico border barrier and the Export-Import Bank of the United States (Ex-Im).

The Secure Fence Act of 2006 called for the construction of 700 miles of barriers along the U.S.-Mexico border. Not even the most shameless sophist will argue that anything like that happened. Far fewer than even 100 miles of high fencing followed. The feds did lay down vehicle barriers and counted those as “miles” toward compliance, but it’s laughable to contend that the law was implemented in any meaningful way.

It was conservative inaction that gave Trump traction.  On this issue as on others. 

Is Illegal Immigration a Crime?

It is. Illegal immigrants are subject to criminal penalties. While improper entry is a crime, unlawful presence is not a crime. One can be unlawfully present in the U. S. without having entered improperly, and thus without having committed a crime. 

If a foreign national enters the country on a valid travel or work visa, but overstays his visa, failing to exit before the expiration date, then he is in violation of federal immigration law. But this comes under the civil code, not the criminal code. Such a person is subject to civil penalties such as deportation.

So there are two main ways for an alien to be illegal. He can be illegal in virtue of violating the criminal code or illegal in virtue of violating the civil code. 

Those who oppose strict enforcement of national borders show their contempt for the rule of law and their willingness to tolerate criminal behavior, not just illegal behavior.

Related articles

DeBlasio: Yes, we shield undocumented drunk drivers from immigration enforcement

Anarcho-Tyranny

Gluttony: Another Sign of Decline

What's Wrong with Illegal Immigration?

The Danger of Appeasing the Intolerant

'The Punishment Must Fit the Crime' and Lex Talionis

Invective

'Structural Racism' and Conservative Cluelessness

Libel?

Petula Dvorak, Washington Post, 13 June:  "Omar Mateen despised gays in the same way that Donald Trump and too many of his supporters despise Muslims."

Why isn't this libel?  

'Libel' as defined in the law:

1) n. to publish in print (including pictures), writing or broadcast through radio, television or film, an untruth about another which will do harm to that person or his/her reputation, by tending to bring the target into ridicule, hatred, scorn or contempt of others. Libel is the written or broadcast form of defamation, distinguished from slander, which is oral defamation. It is a tort (civil wrong) making the person or entity (like a newspaper, magazine or political organization) open to a lawsuit for damages by the person who can prove the statement about him/her was a lie. Read more.

Dvorak and her employers ought to be careful.  Trump is a vindictive man with the will and the wherewithal to take legal action against his enemies.  There are plenty of negative things she could say about the man that are true.

Whether or not Dvorak's outrageous statement counts as libel, she has no evidence for it.  To call for a moratorium on Muslim immigration is perfectly reasonable in present circumstances and does not imply any hatred of Muslims.

Analogy.  The law forbids the sale of firearms to felons.  I think this provision of the law is wise and good and conducive unto law and order.  Does that make me a hater of felons?  I don't hate them; I merely hold that it would be unwise to allow them to purchase firearms. Similarly, I don't hate Muslims, I merely hold that in present circumstances it would be wise to vet carefully immigrants from Muslim lands.

Related articles

Eugene Robinson

Explaining the Obama Admin's Refusal to Identify the Threat as Islamic

Why the Left Will Not Admit the Threat of Radical Islam (Revised and Expanded)

Free Speech: Is It Always Right to Say What One has a Right to Say?

What ISIS Really Wants

Free Speech and Islamic Terror: Locating the Bone of Contention

'Religion of Peace' is not a Harmless Platitude

Obama the Disaster

Hillary the Fabulist

Truth Decay

Should Gun Manufacturers Be Sued for Gun Crimes?

Suppose I sell you my car, transferring title to you in a manner that accords with all the relevant statutes. It is a good-faith  transaction and I have no reason to suspect you of harboring any  criminal intent. But later you use the car I sold you to mow down  children on a school yard, or to violate the Mann Act, or to commit  some other crime. Would it be right to hold me  morally responsible for your wrongdoing? Of course not. No doubt, had I not sold you that particular car, that particular criminal event would not have occurred: as a philosopher might put it, the event is individuated by its constituents, one of them being the car I sold you. That very event could not have occurred without that very car.  But that does not show that I am responsible for your crime. I am no more  responsible than the owner of the gas station who sold you the fuel that you used for your spree.

Suppose I open a cheesecake emporium, and you decide to make cheesecake your main dietary item. Am I responsible for your ensuing  health difficulties? Of course not. Being a nice guy, I will most likely warn you that a diet consisting chiefly of cheesecake is contraindicated. But in the end, the responsibility for your ill health lies with you.

The same goes for tobacco products, cheeseburgers, and so on down the line. The responsibility for your drunk driving resides with you, not with auto manufacturers or distilleries. Is this hard to understand?  Not unless you are morally obtuse or a liberal, terms that in the end may be coextensive.

The principle extends to gun manufacturers and retailers. They have their legal responsibilities, of course. They are sometimes the legitimate targets of product liability suits.  But once a weapon has been  legally purchased or otherwise acquired, the owner alone is responsible for any crimes he commits using it.

But many liberals don't see it this way. What they cannot achieve through gun control  legislation, they hope to achieve through frivolous lawsuits.  The haven't had much success recently.  Good.  But the fact that they try shows how bereft of common sense and basic decency they are.

Don't expect them to give up.  Hillary is in full-fury mode on this one.  According to the BBC, "She proposes abolishing legislation that protects gun makers and dealers from being sued by shooting victims." 

There is no wisdom on the Left.  The very fact that there is any discussion at all of what ought to be a non-issue shows how far we've sunk in this country.

What About Infertile Heterosexual Couples?

Keith Burgess-Jackson writes,

The purpose and point of marriage, as everyone knows, and as the law has long recognized, is to bind a man and a woman to one another for the sake of any children they produce. Please, please, please don't say that infertile heterosexual couples are allowed to marry, as though that refutes my claim. Immature 21-year-olds are allowed to drink alcohol, but that doesn't mean the purpose and point of the drinking age isn't to prevent immature individuals from drinking alcohol.

That's right.  As I say near the end of a long entry, The Infertility Argument for Same-Sex Marriage:

The law cannot cater to individual cases or even to unusual classes of cases.  Consider laws regulating driving age.  If the legal driving age is 16, this is unfair to all the 13-16 year olds who are competent drivers.  (E.g., farm boys and girls who learned to operate heavy machinery safely before the age of 16.)  If the law were to cater to these cases, the law would become excessively complex and its application and enforcement much more difficult.  Practical legislation must issue in demarcations that are clear and easily recognized, and therefore 'unfair' to some.

But a better analogy is voting.  One is allowed to vote if one satisfies quite minimal requirements of age, residency, etc.  Thus the voting law countenances a situation in which the well-informed and thoughtful votes of mature, successful, and productive members of society are given the same weight as the votes of people who for various reasons have no business in a voting booth.  We don't, for example, prevent  the senile elderly from voting even though they are living in the past out of touch with the issues of the day and incapable of thinking coherently about them.  We don't exclude them or other groups for a very good reason: it would complicate the voting law enormously and in highly contentious ways.  (Picture armies of gray panthers with plenty of time on their hands roaming the corridors of Congress armed with pitchforks.)  Now there is a certain unfairness in this permissiveness: it is unfair to thoughtful and competent voters that their votes be cancelled out by the votes of the thoughtless and incompetent.  But we of the thoughtful and competent tribe must simply 'eat' (i.e., accept) the unfairness as an unavoidable byproduct of workable voting laws.

In the same way, whatever residual unfairness to homosexuals there is in allowing infertile oldsters to marry (after my foregoing arguments have been duly digested) is an unfairness that simply must be accepted if there are to be workable marriage laws.

Related articles

More Liberal-Left Insanity

'Traditional Marriage' or 'Natural Marriage'?

On 'Disenfranchise' and Hillary's Will to Power

Ralph Wedgwood on Marriage

The Deep Meaning of Ferguson: The End of the Rule of Law

Ferguson is of course just one instance.  But it is emblematic.  As usual, Victor Davis Hanson gets it right:

In the Ferguson disaster, the law was the greatest casualty. Civilization cannot long work if youths strong-arm shop owners and take what they want. Or walk down the middle of highways high on illicit drugs. Or attack police officers and seek to grab their weapons. Or fail to obey an officer’s command to halt. Or deliberately give false testimonies to authorities. Or riot, burn, and loot. Or, in the more abstract sense, simply ignore the legal findings of a grand jury; or, in critical legal theory fashion, seek to dismiss the authority of the law because it is not deemed useful to some preconceived theory of social justice. Do that and society crumbles.

In our cynicism we accept, to avoid further unrest, that no government agency will in six months prosecute the looters and burners, or charge with perjury those who brazenly lied in their depositions to authorities, or charge the companion of Michael Brown with an accessory role in strong-arm robbery, or charge the stepfather of Michael Brown for using a bullhorn to incite a crowd to riot and loot and burn. We accept that because legality is becoming an abstraction, as it is in most parts of the world outside the U.S. where politics makes the law fluid and transient.

Nor can a government maintain legitimacy when it presides over lawlessness. The president of the United States on over 20 occasions insisted that it would be illegal, dictatorial, and unconstitutional to contravene federal immigration law — at least when to do so was politically inexpedient. When it was not, he did just that. Now we enter the Orwellian world of a videotaped president repeatedly warning that what he would soon do would be in fact illegal. Has a U.S. president ever so frequently and fervently warned the country about the likes of himself?

Read it all.

Related articles

How to Tell the Truth without being Truthful

Sick of Political Acrimony, Reader Goes on 'News Fast'

Ad Ignorantiam and the Law

On Legal and Illegal Immigration

A reader from Down Under poses this question:

America is experiencing immigration problems somewhat like Australia's. The idea of  'multiculturalism' some would say is beginning to show its flaws. Who do you believe should be allowed to enter your country? Please feel free to be as politically incorrect as you like.

1. First of all, one must insist on a distinction that many on the Left willfully ignore, that between legal and illegal immigration. (Libertarians also typically elide the distinction.)  Legal and illegal immigration are separate, logically independent, issues. To oppose illegal immigration, as any right-thinking person must, is not to oppose legal immigration. So, to answer one of the reader's questions, no one should be allowed to enter illegally. But why exactly? What's wrong with illegal immigration? Aren't those who oppose it racists and xenophobes and nativists? Doesn't everyone have a right to migrate wherever he wants?

2. The most general reason for not allowing illegal immigration is precisely because it is illegal.  If the rule of law is to be upheld, then reasonable laws cannot be allowed to be violated with impunity simply because they are difficult to enforce or are being violated by huge numbers of people.  Someone who questions the value of the rule of law is not someone it is wise to waste time debating.

3. There are several sound specific reasons for demanding that the Federal government exercise its legitimate, constitutionally grounded (see Article I, Section 8 of the U.S. constitution) function of securing the national borders, and none of these reasons has anything to do with racism or xenophobia or nativism or any other derogatory epithet that slanderous leftists and libertarians want to attach to those of us who can think clearly about this issue.

There are reasons having to do with national security in an age of terrorism. There are reasons having to do with assimilation, national identity, and comity. How likely is it that illegals will assimilate, and how likely is social harmony among citizens and unassimilated illegals?  There are considerations of fairness in respect of those who have entered the country legally by satisfying the requirements of so doing. Is it fair that they should be put through a lengthy process when others are allowed in illegally.

There are reasons having to do with the importation of contraband substances into the country. There are reasons having to do with increased crime. Last but not least, there are reasons pertaining to public health. With the concern over avian influenza, tuberculosis, ebola, and all sorts of tropical diseases, we have all the more reason to demand border control.

Borders are a body politic's immune system. Unregulated borders are deficient immune systems. Diseases that were once thought to have been eradicated have made a comeback north of the Rio Grande due to the unregulated influx of population. These diseases include tuberculosis, Chagas disease, leprosy, Dengue fever, polio, and malaria.

You will have noticed how liberals want to transform into public health issues problems that are manifestly not public but matters of private concern, obesity for example. But here we have an issue that is clearly a public health issue, one concerning which Federal involvement is justified, and what do our dear liberals do? They ignore it. Of course, the problem cannot be blamed solely on the Democrat Party. Republicans like Bush and McCain are just as guilty. On immigration, Bush was clearly no conservative; he was a libertarian on this issue. A libertarian on some issues, a liberal on others, and a conservative on far too few.

4. Many liberals think that opposition to illegal immigration is anti-Hispanic. Not so. It is true that most of those who violate the nation's borders are Hispanic. But the opposition is not to Hispanics but to illegal entrants whether Hispanic or not. It is a contingent fact that Mexico is to the south of the U.S. If Turkey or Iran or Italy were to the south, the issue would be the same. And if Iran were to the south, and there were an influx of illegals, then then leftists would speak of anti-Persian bias.

A salient feature of liberals and leftists -- there isn't much difference nowadays -- is their willingness to 'play the race card,' to inject race into every issue. The issue of illegal immigration has nothing to do with race since illegal immigrants do not constitute a race. There is no such race as the race of 'llegal aliens.' Opposition to them, therefore, cannot be racist.  Suppose England were to the south of the U. S. and Englishmen were streaming north.  Would they be opposed because they are white?  No, because they are illegal aliens.

"But aren't some of those who oppose illegal immigration racists?" That may be so, but it is irrelevant. That one takes the right stance for the wrong reason does not negate the fact that one has taken the right stance. One only wishes they would take the right stance for the right reasons.  Even if everyone who opposed illegal immigration were a foaming-at-the-mouth redneck of a racist, that would not detract one iota of cogency from the cogent arguments against allowing illegal immigration.  To think otherwise is to embrace the Genetic Fallacy.  Not good.

5. The rule of law is a precious thing. It is one of the supports of a civilized life. The toleration of mass breaking of reasonable and just laws undermines the rule of law.

6. Part of the problem is that we let liberals get away with obfuscatory rhetoric, such as 'undocumented worker.' The term does not have the same extension as 'illegal alien.'  I discuss this in a separate post.  But having written thousands of posts, I don't quite know where it is. 

7. How long can a welfare state survive with open borders?  Think about it.  The trend in the USA for a long time now has been towards bigger and bigger government, more and more 'entitlements.' It is obviously impossible for purely fiscal reasons to provide cradle-to-grave security for everyone who wants to come here.  So something has to give.  Either you strip the government down to its essential functions or you control the borders.  The first has no real chance of happening.  Quixotic is the quest  of  strict constructionists  and libertarians who call for it.  Rather than tilting at windmills, they should work with reasonable conservatives to limit and eventually stop the expansion of government.  Think of what a roll-back to a government in accordance with a strictly construed constitution would look  like.  For one thing, the social security system would have to be eliminated.  That won't happen.  Libertarians are 'losertarian' dreamers.  They should wake up and realize that politics is a practical business and should aim at the possible.  By the way, the pursuit of impossible dreams is common to both libertarians and leftists.

8. Even though contemporary liberals show little or no understanding for the above arguments, there are actually what might be called 'liberal' arguments for controlling the borders:

A. The Labor Argument. To give credit where credit is due, it was not the conservatives of old who championed the working man, agitated for the 40 hour work week, demanded safe working conditions, etc., but the liberals of those days.  They can be proud of this. But it is not only consistent with their concern for workers that they oppose illegal immigration, but demanded by their concern. For when the labor market is flooded with people who will work for low wages, the bargaining power of the U.S. worker is diminished. Liberals should therefore oppose the unregulated influx of cheap labor, and they should oppose it precisely because of their concern for U. S. workers.

By the way, it is simply false to say, as Bush, McCain and other pandering politicians have said, that U.S. workers will not pick lettuce, clean hotel rooms, and the like. Of course they will if they are paid a decent wage. People who won't work for $5 an hour will work for $20. But they won't be able to command $20 if there is a limitless supply of indigentes who will accept $5-10.

B. The Environmental Argument. Although there are 'green' conservatives, concern for the natural environment, and its preservation and protection from industrial exploitation, is more a liberal than a conservative issue. (By the way, I'm a 'green' conservative.) So liberals ought to be concerned about the environmental degradation caused by hordes of illegals crossing the border. It is not just that they degrade the lands they physically cross, it is that people whose main concern is economic survival are not likely to be concerned about environmental protection. They are unlikely to become Sierra Club members or to make contributions to the Nature Conservancy. Love of nature comes more easily to middle class white collar workers for whom nature is a scene of recreation than for those who must wrest a livelihood from it by hard toil.

C. The Population Argument. This is closely related to, but distinct from, the Environmental Argument. To the extent that liberals are concerned about the negative effects of explosive population increase, they should worry about an unchecked influx of people whose women have a high birth-rate.

D. The Social Services Argument. Liberals believe in a vast panoply of social services provided by government and thus funded by taxation. But the quality of these services must degrade as the number of people who demand them rises. To take but one example, laws requiring hospitals to treat those in dire need whether or not they have a means of paying are reasonable and humane -- or at least that can be argued with some show of plausibility. But such laws are reasonably enacted and reasonably enforced only in a context of social order. Without border control, not only will the burden placed on hospitals become unbearable, but the justification for the federal government's imposition of these laws on hospitals will evaporate. According to one source, California hospitals are closing their doors. "Anchor babies"  born to illegal aliens instantly qualify as citizens for welfare benefits and have caused enormous rises in Medicaid costs and stipends under Supplemental Security Income and Disability Income.

The point is that you can be a good liberal and oppose illegal immigration. You can oppose it even if you don't care about about increased crime, terrorism, drug smuggling, disease, national identity, national sovereignty, assimilation, the rule of law, or fairness to those who have immigrated legally. But a 'good liberal' who is not concerned with these things is a sorry human being.

I hope I have been politically incorrect enough for my reader's taste.

Related articles

Ten Reasons Not to Vote Democrat

The Losertarian Party

GOP Candidates: Don't Let the Dems Off the Hook On Immigration

Observations On The Illegal Immigration Ethics Train Wreck, The Ugliest Of Them All

Obama uses illegal immigration to portray GOP as racists

'HE BROKE HIS PROMISE' Obama immigration delay draws ire of supporters

Obama shelves immigration action; Hispanic activists enraged

Pew Poll: Libertarians Don't Know What 'Libertarian' Means

Ferguson

I have been asked my opinion.  But before opining it would be better to wait until we know or at least have a clearer idea of what exactly transpired between Michael Brown, the 18-year-old black male, and the white police officer Darren Wilson. We know that Brown is dead and that the officer hit him with five or so rounds. (And we know that it was the shooting that caused the death.)

And we know that prior to the shooting, Brown stole some tobacco products (cigarillos in one account, Swisher Sweet cigars in another) from a convenience store, roughing up the proprietor on the way out.

The theft is not something that Wilson could have known about prior to the shooting, and even if he did know about it, that would not justify his use of deadly force against the shoplifter.  Obviously.

So those are the main facts as I understand the case.  I need to know more to say more, except for two comments:

1.  Al Sharpton's claim that the release of the store video was a 'smear' of Brown is absurd on the face of it.  One cannot smear someone with facts. To smear is to slander.  It is to damage, or attempt to damage, a person's reputation by making false accusations. Sharpton is employing the often effective leftist tactic of linguistic hijacking.  A semantic vehicle with a clear meaning is 'hijacked' and piloted to some leftist destination.   The truth about a person can be damaging to his reputation.  But if you cannot distinguish between damaging truths and damaging falsehoods, then you are as willfully stupid as the race hustler Sharpton.

2. The governor of Missouri, Jay Nixon, called for "a vigorous prosecution"  in the case and to "do everything we can to achieve justice for [Brown's] family." These statements sink to a Sharptonian level of (willful?) stupidity.  For one thing, Wilson cannot be prosecuted for the killing of Brown until it has been determined that Wilson should be charged in the killing of Brown.  

That Wilson killed Brown is a fact.  But that he should be charged with a crime in the killing is a separate question.  Only after a charge has been lodged can the judicial process begin with prosecution and defense.

Second, talk of achieving justice for Brown's family  not only presupposes that Wilson has been indicted, it begs the question of his guilt: it assumes he is guilty of a crime.  More fundamentally, talk of achieving justice for one party alone makes no sense.  The aim of criminal proceeding is to arrive at a just outcome for both parties.

Suppose Wilson is indicted and tried.  Either he is found guilty or found not guilty of the charge or charges brought against him.  If he is found guilty, and is in fact guilty, then there is justice for both the perpetrator and the victim and his family  If he is found not guilty, and he is in fact not guilty, then the same: there is justice for both the perpetrator and the victim and his family.  Therefore, to speak of achieving justice for one of the parties alone makes no  sense.

People don't understand this because they think that the victim or his family must be somehow compensated for his or their loss.  But that is not the purpose of a criminal trial.  It is too bad that the young black man died, but the purpose of a criminal trial is not to assuage the pain of such a loss.  The purpose is simply to determine whether a person charged with a crime is guilty of it.

Related articles

The Zimmerman Verdict and the 'Planetary' Difference Between Left and Right

On the Zimmerman Acquittal

Is There Such a Thing as Racial Profiling?

Is Ferguson the Future?

Michael Brown: A Criminal and a Thug

BillO goes NUCLEAR on Al Sharpton, accuses him and other race hustlers of wanting 'lynch mob justice' in Ferguson

Why has the Left 'Gone Ballistic' over Hobby Lobby?

It is hard for many of us to understand why so many leftists have worked themselves up into a frothing frenzy over the 5-4 SCOTUS Hobby Lobby decision, a frenzy that in the notable cases of Nancy Pelosi and Hillary Clinton has spilled over into shameless  lying.  But even among those lefties who are not lying about the decision, and who understand what it was and just how narrow and circumscribed it was, there are those who are still going nuts over it.  Why?

The upshot of the decision was that closely-held, for-profit companies such as Hobby Lobby may not be coerced by the government into providing exactly four, count 'em, four, abortion-inducing contraceptives for its employees in violation of the religious beliefs of the proprietors of the company. That's it!

(Parenthetical Terminological Observation:  There is an interesting terminological question here that perhaps only philosophers could get excited over, namely: how can a substance or device that destroys a fertilized egg, a conceptus, be legitimately referred to as contraceptive?  A genuine contraceptive device, such as a diaphragm, prevents conception, prevents the coming into being of a conceptus.  Contraception comes too late once there is a fertilized ovum on the scene.  'Abortifacient contraceptive' is a contradictio in adjecto.  Call me a pedant if you like, but what you call pedantry, I call precision.  One ought to insist on precision in these matters  if one is serious and intellectually honest.)

My question again:  why the liberal-left frenzy over such a narrow and reasonable Supreme Court decision, one that did not involve the interpretation of the Constitution, but the mere construction of a statute, i.e., the interpretation of an existing law?  (And of course, the decision did not first introduce the notion that corporations may be viewed as persons!)

Megan McArdle provides some real insight in her piece, Who's the Real Hobby Lobby Bully?

She makes three main points.

1. The first point is that ". . . while the religious right views religion as a fundamental, and indeed essential, part of the human experience, the secular left views it as something more like a hobby, so for them it’s as if a major administrative rule was struck down because it unduly burdened model-train enthusiasts."

First a quibble.  It is not correct to imply that it is only the religious right that views religion as an essential component of human experience; almost all conservatives do, religious and nonreligious.  I gave an example the other day of the distinguished Australian philosopher David M. Armstrong who, while an atheist and a naturalist, had the greatest respect for religion and considered it an essential part of human experience.

Well, could religion be reasonably viewed as a hobby?  Obviously not.  It cuts too deep.  Religion addresses the ultimate questions, the questions as to why we exist, what we exist for, and how we ought to live.  It purports to provide meaning to an otherwise meaningless existence.  Religions make total claims on the lives of their adherents, and those who take their religion seriously apply it to every aspect of their lives: it is not something that can be hived off from the rest of one's life like a hobby.

It is because of this total claim that religions make to provide ultimate understanding, meaning, and directives for action that puts it at odds with the totalizing and the fully totalitarian state.  The ever-expanding, all-controlling centralized state will brook no competitors when it comes to the provision of the worldview that will guide and structure our lives.  This is why hostility to religion is inscribed into the very essence of the Left.  In fact, I would go so far as to say that there cannot really be a religious Left: those on the Left who are 'religious' live as if leftism is their real religion.

I would reformulate McArdle's first point as follows.  The Left has no understanding of religion and no appreciation of it.  They see it as a tissue of superstitions and prejudices that contributes nothing to human flourishing.  They want it suppressed, or else marginalized: driven from the public square into the realm of the merely private.

That the SCOTUS majority took religion seriously is therefore part of what drives leftists crazy.

2. McArdle's second point has to do with negative and positive rights and the role of the state.  A positive right is a right to be provided with something, and a negative right is a right to not having something taken away.  Thus my right to life is a negative right, a right that generates in others the duty to refrain from killing me among other things.  The right to free speech is also a negative right: it induces in the government the duty not to prevent me from publishing my thoughts on this  weblog, say.  But I have no positive right to be provided with the equipment necessary to publish a weblog.  I have the negative right to acquire such equipment, but not the positive right to have it provided for me by any person or by the state.

Now suppose you think that people have the positive right to health care or health care insurance and that this includes the right to be provided with abortifacients or even with abortions. Then the crunch comes inevitably.  There is no positive right to an abortion, we conservatives say, and besides, abortion is a grave moral evil.  If the state forces corporations like Hobby Lobby to provide abortions or abortifacients, then it violates the considered moral views of conservatives.  It forces them to to support what they consider to be a grave moral evil. 

People have the legal right to buy and use the contraceptives they want.  But they don't have the right to use the coercive power of the state to force others to pay for them when the contraceptives in question violate the religious beliefs of those who are forced to pay for them.  To a conservative that is obvious.

But it riles up lefties who hold that (i) religion is a purely private matter that must be kept private; (ii) there is a positive right to health care; (iii) abortion is purely a matter of a woman's reproductive health.

3. McArdle's third point has to do with the Left's destruction of civil society.  I would put it like this.  The Left aims to eliminate the buffering elements of civil society lying  between the naked individual and the state. These elements include the family, private charities, businesses, service organizations and voluntary associations of all kinds.  As they wither away, the state assumes more of their jobs.  The state can wear the monstrous aspect of Leviathan or that of the benevolent nanny whose multiple tits are so many spigots supplying panem et circenses to the increasingly less self-reliant masses.  To cite just one example, the Obama  administration promotes ever-increasing food stamp dependency to citizens and illegal aliens alike under the mendacious SNAP acronym thereby disincentivizing relief and charitable efforts at the local level while further straining an already strapped Federal treasury. A trifecta of stupidity and corruption, if you will: the infantilizing of the populace who now needs federal help in feeding itself; the fiscal irresponsibility of adding to the national debt; the assault on the institutions of civil society out of naked lust for ever more centralized power in the hands of the Dems, the left wing party. (Not that the Repubs are conservative.)

From the foregoing one can see just how deep the culture war goes.  It is a struggle over the nature of religion, its role in human flourishing, and its place in society.  It is a battle over the nature of rights.  It is a war over the size and scope and role of government, the limits if any on state power, and the state's relation to the individual and to the institutions of civil society.

In one sense, Alan Dershowitz was right to refer to the Hobby Lobby decision as "monumentally insignificant."  In another sense wrong: the furor over it lays bare the deep philosophical conflicts that divide us.

Related articles

Orwellian Mendacity and Blatant Distortion at The New York Times

Robert Paul Wolff's Misunderstanding of the Hobby Lobby Decision

On Blaming the Victim

A reader wants my thoughts regarding the following hypothetical scenarios.

I own a modestly nice car, say, a 2014 Honda Accord with some bells and whistles. I treat it fairly well, ensuring that it receives in a timely fashion all of the required maintenance. I get it washed and waxed with pride. The one deficiency I have is that I park my car with some indiscretion. I am not that vigilant with locking my doors. You warn me that this is a mistake. I counter by saying that there are other cars that are more valuable, say BMWs and Audis and that I don't park my car in so-called 'bad areas.' Nonetheless, to my foolish shock and surprise, my car is stolen one day. Could it then be said that I am at least partially responsible for having my car stolen?

Yes, you are partially responsible, and the thief is partially responsible, but his part is larger than yours.  You are the victim of the crime and he is the perpetrator. I blame both of you for the crime, loading the lion's share of the blame upon the perpetrator.  But I blame you too, and in blaming you, I blame the victim.  Clearly, it is right, proper, and  just to blame the victim within limits and subject to qualifications.

This is why the accusation, "You are blaming the victim!" cuts little ice with me.  In some, but not all, situations some judicious blaming of the victim is perfectly appropriate.  People who cannot see this are in many cases  victims of their own political correctness and ought to be blamed for not using their faculties and thus for being victims of their own self-induced political correctness.  This is a sort of meta-level blaming of the victim.

We ought to distinguish the legal, the moral, and the prudential aspects of the situation.  I will set the legal questions aside since in the above scenario the victim hasn't done anything legally wrong.  (In related scenarios, however, the victim would probably be criminally negligent under the law, e.g,  you leave your child in the car, keys in ignition, engine running, while you enter a convenience store for a cup of coffee, and your child is abducted.)

The prudential and moral aspects alone interest me.  But before I explain the difference, let's consider my reader's second scenario.

If we say yes, then I wish to change the elements of our hypothetical scenario in attempts to pump some uncomfortable intuitions. Say instead of owning a modestly nice car, I own a modestly nice female body. I treat it fairly well, making sure I go to the doctor in a timely manner and go to the spa. However, I lack vigilance with myself and drink a lot at frat parties. You warn me that this is not wise. I counter by saying that there are other women more foolish than I and that I don't frequent 'bad places.' Yet, to my foolish shock and surprise, some abuse occurs. Could it be said that I am then at least partially responsible for the abuse? 

 

Yes, of course.

 

Contemporary sentiment is that there is no one to blame for sexual assault except for the perpetrator. And while I agree that the perpetrators are primarily the culpable ones, I also think that there must be some level of personal responsibility that must be practiced. I don't think it terribly offensive for us to encourage women to exercise a healthy level of skepticism of one's fellow human being, yet feminists will cry foul, that we are punishing women for the potential crimes of others when we say it is their responsibility to not party or dress a certain way or hang out with a certain crowd or drink themselves to oblivion, that we should focus our efforts on disciplining the would-be perpetrators with more education.

My reader obviously has his head screwed on Right (which fact is also part of the explanation of why he reads my weblog in the first place).  I agree entirely with what he says.  I would only add to it.

 

What the attractive young woman does when she 'struts her stuff' in dangerous precincts is both imprudent and immoral.  I don't need to explain why it is imprudent.  It is immoral because she is tempting others to commit immoral acts.  Of course, if she ends up being raped, the lion's share of the moral blame lands on the rapist.  But it would be absurd to suggest that she bears no moral responsibility for the rape.  She did something morally wrong: she tempted testosterone-crazed drunken frat boys to have their way with her when she knows what such animals are like.  (They didn't call  the John Belushi flick Animal House for nothing. And look what happened to him: he rode the Speedball Express to Kingdom Come.) The principle here, one probably admitting of exceptions, is something like this: 

 

(P) It is morally wrong to suborn immoral behavior.

 

'Suborn' is most often used in legal contexts, but as the hyperlinked definition shows, it has a broader meaning extendible to the moral sphere.  Surely, it is in general morally wrong to tempt, entice, persuade people to commit immoral acts. 

 

If you reject (P), what would you be maintaining? That it is morally acceptable to suborn immoral behavior?  That is is morally obligatory to suborn such behavior?  That the subornation of immoral behavior is morally neutral?  None of the above, say I.

 

If you have moral sense, you will accept (P).  Unfortunately, moral sense is in short supply in these benighted times.  Can we blame this one on liberals too?

 

My points are made even more forcefully, and more elegantly, in the first two articles below, especially the second.

 

UPDATE:  Seldom Seen Slim writes,

 

Nice post. I was wondering whether you are wanting to talk more about soliciting rather than suborning in Principle P.  http://definitions.uslegal.com/c/criminal-solicitation/

 

BV:  The examples given above are not examples of solicitation as per the definition to which you linked.  The well-endowed but scantily-clad female who advertises her charms in dangerous precincts is not soliciting the crime of rape or any other crime against her person.  The definition also implies that solicitation must be between a person A and some other person B.  But if a person acts in such a way as to tempt another to commit a crime, there needn't be any particular person who is being tempted.

 

Let's consider another example.  I withdraw a large sum of money from an outdoor ATM machine at night in a bad part of town and then walk down the street ostentatiously counting my wad.  I don't see that that foolish behavior would count as solicitation by the above definition.  After all, I don't want to be robbed, and there is no specific person I am persuading to rob me.  But if I offer you $10,000 to kill my wife so that I can collect on a life insurance policy, then that is a clear case of solicitation, as per the definition, whether or not you agree to attempt the dastardly deed and whether or not you succeed.

 

The problem with suborning is that many educated speakers understand it to mean bribing someone  to say something false under oath. Bribing is crucial to suborning. A material element of the criminal charge is your use of corrupt or illegal inducements (e.g., a bribe) to bring about a perjury. If you merely "tempt, entice, [rhetorically] persuade people to commit immoral acts" (your terms), you are not suborning, though you may be soliciting immoral/criminal behavior.

 

BV:  So you are saying that the offer of a bribe is essential to subornation?  If memory serves, however, in the impeachment proceedings against Bill Clinton, one of the charges was subornation of perjury.  Was it alleged that Clinton offered a bribe to the person or persons he attempted to persuade to perjure themselves?  I'm just asking.  And what exactly is a bribe in the eyes of the law?  A monetary inducement only? 

 

In any case, I thought I made it clear that I was not talking above about the law but about morality.  I linked to a dictionary definition of 'suborn' that is broader than a legal definition.  But it may be that 'suborn' is not the best word for what I am trying to convey.

 

As a principle about suborning, I don't think there is anything controversial about (P)--but it has a pretty narrow scope. If you replace (P) with a much broader solicitation principle, to include things like tempting and speaking in favor, it's not clear to me at least that (P) will fly without a lot of qualification.

 

BV:  The sort of counterexample to (P) that occurred to me was what goes on in a 'sting' operation by an undercover law enforcement agent.

 

"Tempting" has always puzzled me. If I put you in a position where it would be easy for you to embezzle a large sum of money, have I tempted you or just shown my faith in your honesty? And if you choose to steal the money, what blame should attach to me because of your (unsuspected) bad character? Am I to be blamed for not acting on the assumption that you will turn into a thief if given the chance? Similarly for the lady who dresses in a sexy outfit and gets attacked. Why are we blaming her because some men have no self-control or decency?

 

BV:  Now that is a good  point.  You leave the bank vault open with me nearby while you go out for lunch.  Are you tempting me to steal or evincing faith in my honesty?  Well, if you don't know me, or don't know me well, then you ought to bear some moral responsibility for my pilfering of the pelf.  But if you knew me very well and knew that I was hitherto always honest, then I think very little or perhaps no blame would attach to you.

 

The case of the sexually attractive and scantily-clad female who advertises her endowments around people she doesn't know is relevantly different.  She knows what men in general are like and knows that her behavior is risky and yet she does it anyway.  I say she bears some of the blame for the abuse she experiences. 

 

Suppose I know that Jack is an alcoholic and I ply him with strong drink at my Thanskgiving feast.  He drives off drunk and slaughters a family of four.  Do I bear some moral responsibility for the slaughter?  Of course I do.  But suppose I don't know Tom, but in good faith I sell him a gun, having no reason to suspect him of criminal intent, but Tom then kills his wife using the gun I sold him.  Am I to any degree morally responsible for the crime?  No, not to any degree.

Related articles

Why are People So Easy to Swindle?

Homo Homini Lupus

How To Avoid Becoming A Victim Of An Insurance Scam

How un-Islamic it is to blame the victim

Death Limits Our Immorality: Death as the Muse of Morality

Robert Paul Wolff's Misunderstanding of the Hobby Lobby Decision

Professor Wolff of The Philosopher's Stone writes,

When we got back to our apartment, I turned on my computer to check the news, and learned of the pair of decisions handed down by the Supreme Court.  That both decisions are disastrous goes without saying, but I think they have quite different significances.

The Hobby Lobby decision granting to certain businesses the legal right to claim protection of their "religious beliefs" against The Affordable Care Act is by any measure the more grotesque of the two, and Justice Ginsburg is clearly correct in warning that the majority has opened the door to an endless series of meretricious claims of conscience by those fictional persons we call corporations.  Only someone with Marx's mordant satirical bent could fully appreciate the decision to confer personhood on corporations while robbing actual persons of the elementary right to medical protection.

I beg to differ.  First of all, the SCOTUS decision in Burwell v. Hobby Lobby was not that personhood is to be conferred on corporations.  That had already been settled by the Dictionary Act enacted in 1871.  Here we read:

The Dictionary Act states that “the words ‘person’ and ‘whoever’ include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.”12

The question the court had to decide was whether closely held, for-profit corporations are persons under the Religious Freedom and Restoration Act . "RFRA states that “[the] Government shall not substantially burden a person’s exercise of religion.”3 (Ibid.)

If Hobby Lobby is forced by the government to provide abortifacients to its employees, and Hobby Lobby is a person in the eyes of the law, then the government's Affordable Care Act mandate is in violation of the Religious Freedom and Restoration Act.  For it would substantially burden Hobby Lobby's proprietors' exercise of religion if they were forced to violate their own consciences by providing the means of what they believe to be murder to their employees.  So the precise question that had to be decided was whether Hobby Lobby is a person in the eyes of the law.  The question was NOT whether corporations are persons in the eyes of the law.  Wolff is wrong if he thinks otherwise.

Note that the issue here is not constitutional but statutory: the issue has solely to do with the interpretation and application of a law, RFRA.  As Alan Dershowitz explains (starting at 7:52), it has to do merely with the "construction of a statute."

Not only was the SCOTUS decision not a decision to confer personhood on corporations, it also does not entail "robbing actual persons of the elementary right to medical protection."  And this, even if (i) there is a positive right to be given medical treatments, drugs, appliances, and whatnot, and (ii) abortion is a purely medical procedure that affects no person other than a pregnant woman.  See Dershowitz. 

Related articles

Can a Sane and Morally Decent Person be a Liberal?

The Central Axiom of Partisan Politics

SCOTUS sides with Hobby Lobby on birth control

Enthymeme

There are unjust laws, but no illegal laws. Ergo, et cetera.

Political Lawlessness Viewed Philosophically at Twilight

It is twilight time for a great nation.  One indication is the rise of political lawlessness.*

Should  this trouble the philosopher? Before he is a citizen, the philosopher is a "spectator of all time and existence" in a marvellous phrase that comes down to us from Plato's Republic (486a).  The rise and fall of great nations is just more grist for the philosopher's mill.  His true homeland is nothing so paltry as a particular nation, even one as exceptional as the USA, and his fate as a truth-seeker cannot be tied to its fate.  Like the heavenly Jerusalem, the heavenly Athens is not bound to a geographical location.

National decline is not just grist for the philosopher's mill, however, it is also perhaps a condition of understanding as Hegel suggests in the penultimate paragraph of the preface to  The Philosophy of Right:

When philosophy paints its grey on grey, then has a shape of life grown old.  By philosophy's grey on grey it cannot be rejuvenated but only understood.  The owl of Minerva spreads its wings only at the falling of the dusk.

Daughter of Jupiter, Minerva in the mythology of the Greeks is the goddess of wisdom.  And the nocturnal owl is one of its ancient symbols.  The meaning of the Hegelian trope is that understanding, insight, and wisdom  arise when the object to be understood has played itself out, when it has actualized and thus exhausted its potentialities, and now faces only decline.

When a shape of life has grown old, philosophy paints its grey on grey.  The allusion is to Goethe's Faust wherein Mephisto says

Grau, teurer Freund, ist alle Theorie,
Und grün des Lebens goldner Baum.

Grey, dear friend, is all theory
And green the golden tree of life.

Philosophy is grey, a "bloodless ballet of categories" (F. H. Bradley) and its object is grey -- no longer green and full of life.  And so philosophy paints its grey concepts on the grey object, in this case America on the wane.   The object must be either dead or moribund before it can be fully understood.  Hegel in his famous saying re-animates and gives a new meaning to the Platonic "To philosophize is to learn how to die."

In these waning days of a great republic, the owl of Minerva takes flight.  What we lose in vitality we gain in wisdom.

The consolations of philosophy are many.

But as citizens we fight on.  For the wise philosopher knows that he can live his vocation only in certain political conditions.

______________

*See Angelo M. Codevilla, Lawlessness, Large and Small

Related articles

Why Do Societies Ossify and Decline?

David Lewis on Religion

Judgmentalism, Moral Judgment, Moral Relativism, and God

This from a reader:

I still read your blog conscientiously, but sometimes stare at your words in ignorant awe.

I have a question for you this morning which may be of interest. In a recent conversation with someone who described himself as a "gay" Christian (or is it a Christian "gay" ?), I gave reasons for observing that "gay Christian" is an oxymoron. My interlocutor said I must not be judgmental and justified his position by the saying, “You have your way, I have my way. As for the right way, it does not exist.” I made no headway with my argument that a belief in moral relativism is incompatible with a belief in God. If God is the incontestable ground of moral absolutes, it seems to me you can't have one without the other. Am I on the right track ?

Thank you for reading.  Several points in response.

1. Can one be a Christian and a homosexual?  I don't see why not, as long as one does not practice one's homosexuality.  So I don't see that 'gay Christian' is an oxymoron.  (AsI am using 'practice,' a homosexual man who succumbs to temptation and has sexual intercourse with a man on an occasion or two, while believing it to be immoral, is not practicing his homosexuality.  The occasional exercise of a disposition does not constitute a practice.)

2. To be judgmental is to be hypercritical, captious, cavilling, fault-finding, etc.  One ought to avoid being judgmental.  But it is a mistake to confuse making moral judgments with being judgmental. I condemn the behavior of Ponzi-schemers like Bernie Madoff.  That is a moral judgment.  (And if you refuse to condemn it, I condemn your refusal to condemn.)   But it would be an egregious misuse of language to say that I am being judgmental in issuing  either condemnation.  

3. If your friend thinks it is wrong to make moral judgments, ask him whether he thinks it is morally wrong.  If he says yes, then point out that he has just made a moral judgment; he has made the moral judgment that making moral judgments is morally wrong. 

4. Then ask him whether (a) he is OK with contradicting himself, or (b) makes an exception for the meta assertion that making moral judgments is morally wrong, or (c) thinks that both the meta judgment and first-order moral judgments (e.g., sodomy is morally wrong) are all morally wrong.  (C) is  a logically consistent position, although rejectable for other reasons.

5. He might of course say that 'must not' in 'must not be judgmental' is not to be construed morally, but in some other way.  Press him on how it is to be construed. 

6. Is moral relativism compatible with theism?  No.  If the God of the Christian faith exists, then there are absolute (objective) moral truths.  This is quite clear if you reflect on the nature of the Christian God.  It is not clear, however, that the arrow of entailment runs in the opposite direction.  A Christian could affirm that it does, but he needn't. Either way, moral relativism and theism are logically inconsistent.

7.  A further point.  When your friend 'went relativistic' on you, there was nothing unusual about that.  Alethic and moral relativism in most people are not  thought-through positions, but simply ways  of avoiding further discussion and the hard thinking necessary to get clear on these matters.  It is a form of 'psychic insulation':  "You can't teach me anything, because it's all relative."

8.  A final point.  That there are moral absolutes leaves open what they are.  While moral relativism is easily dismissed, especially if one is a theist, it is considerably less easy to say what the moral absolutes are, even if one is a theist.  So there is no call to be dogmatic.  One can, and I think ought to, combine anti-relativism with fallibilism.

Related: To Oppose Relativism is not to Embrace Dogmatism

Related articles

Morality, Religion, Law

When Philosophical Questions Grow Up Do They Leave Home? Some Bad Arguments of Lawrence Krauss Exposed

William Sloane Coffin on Morality and Legislation

An old Powerblogs post written 28 March 2005

Coffin on Morality and Legislation

William Sloane Coffin has this to say on p. 56 of Credo (Louisville: Westminster John Knox Press, 2004): "We cannot legislate morality, only the conditions conducive to morality."  To combine three serious mistakes in one short sentence is quite a trick.

First, since we do legislate morality, it follows that we can.

Second, if Coffin is saying that we ought not legislate morality, then he is saying that we ought not have laws, since all laws legislate morality.

Third, it is false that we can legislate the conditions conducive to morality. Among the conditions of morality (moral behavior) are freedom of the will and knowledge of right and wrong and of their difference. Obviously these things fall outside of the scope of legislation. What Coffin wants to say is that we can only legislate certain conditions external to the agent, which, if they were to obtain, would lead to morally correct behavior. Well, nothing can lead to, in the sense of determine, morally correct behavior since free will is involved; but I grant that if everyone had a well-paying job that would reduce the incidence of crime. Unfortunately, the government cannot legislate jobs into existence.

In the same paragraph, we read this amazing sentence: "Economics are [sic] not a science; they [sic] are only politics in disguise." Is this to say that economic phenomena (buying, selling, bartering, etc.) are really political phenomena? That is obviously false: there could be economic phenomena even if there were no state (polis). Is it to say that economics as the study of economic phenomena is really just political science? That too is plainly false. Perhaps Coffin is merely making the trivial point that economic pronouncements are liable to be influenced by political considerations. If that is what he means, he should say it instead of saying something idiotic.

I am sorry to have to report that his book is filled with similar nonsense.

Related: Pseudo-Intellectual Tripe from William Sloane Coffin

Related articles

Morality, Religion, Law

Moral Responsibility in Dreams

Liberals' Uneasy Relationship with the Rule of Law

Liberals are for the rule of law when it suits their collectivist, big government agenda, but only then.  Peter Berkowitz:

The left-liberal mindset endemic on the college faculties and law schools where Barack Obama’s political sensibilities were forged holds that morals and politics are subject to a universal reason to which the left-liberal sensibility is uniquely attuned. This conceit receives expression in a faith that the left-liberal brain trust can embody complex public policy in general rules and regulations, which can then be administered smoothly by well-educated bureaucrats and adjudicated impartially by empathetic judges.

At the same time, the left-liberal mind rebels against established authorities, hierarchies, and formalities that constrain its ability to pursue the people’s good and social justice -- at least as it understands them.

Often enough, this rebellion turns against laws duly enacted by left-liberals themselves. Obamacare and the Iran nuclear deal are now demonstrating the destabilizing consequences of governing in accordance with a love-hate relationship toward the law.

An outstanding piece of analysis.  Read it all.

Related articles

The Obama Administration's Contempt for the Rule of Law

Progressivism as Religion: Peter Berkowitz on Ronald Dworkin

RULE OF LAW IS FOR THE LITTLE PEOPLE: Megan McArdle: ObamaCare Is Whatever Obama Says It Is. "It

The Zimmerman Verdict and the 'Planetary' Difference Between Left and Right

The significance of the Zimmerman trial is that it is emblematic of the deep and ever-deepening racial divide in this country despite the successes of the civil rights movement of the '50s and '60s and the increasing participation of blacks in all institutions of our society, a participation culminating in the election of a black president in 2008 and his re-election in 2012.  Deeper than the racial divide, however, is the left-right divide with the latter fueling the former.  I call it 'planetary' because it is as if conservatives and leftists have no common ground and inhabit different planets.

Let's look at two examples.

On Sunday morning, in a short post entitled Justice Denied, Robert Paul Wolff writes, "I awoke this morning to learn that the Florida jury acquitted George Zimmerman.  Is there anyone on the face of the earth who believes that, had the race of Zimmerman and Martin been reversed, the verdict would have been the same?"

Despite the foolishness of what he posted on Sunday morning, Professor Wolff is not some two-bit cyberpunk with a blog.  I used to have a high opinion of him, on the basis of two books of his I read.  One of them is The Autonomy of Reason: A Commentary on Kant's Groundwork of the Metaphysics of Morals (Harper & Row, 1973).  The flyleaf of my copy bears the annotation, "I first read this book in the fall of 1980.  It is an excellent study!"  I was teaching a graduate seminar on Kant and found Wolff's book extremely useful.  The other book I have read is his In Defense of Anarchism which I also found impressive.  In November of 2009 I wrote three long entries about the anarchism book.  They can be found in my Anarchism category.

Now in what sense was justice denied?  The state's case against Zimmerman was so weak as to be nonexistent. So justice was served by his acquittal.  Had Zimmerman been found guilty of second-degree murder, that would have been the height of injustice.  That ought to be perfectly obvious to anyone who followed the trial.  So justice was not denied to Zimmerman.  He was justly treated. 

If Wolff means anything, he means that justice was denied to Trayvon Martin.  But if that is what he means, then he doesn't understand the purpose of a criminal trial. The purpose of a criminal proceeding is not to secure justice for the victim.  If that were the purpose, then every defendant would have to be found guilty.  For in every acquittal there is no justice for the victim, or victims as in the O. J. Simpson case. 

A criminal trial can issue in the correct result whether or not justice is achieved for the victim.  If the correct result is an acquittal, then of course there is no justice for the victim in that trial.  But if the correct result is a conviction, then there is, per accidens, justice for the victim in that trial.  The main point, however, is that a criminal trial is not about seeking justice for the victim, but about making sure that the accused is not wrongly convicted. 

The glory of our system of justice is the (defeasible) presumption of innocence:  the accused is presumed innocent until proven guilty.  This presumption of innocence puts the burden of proof in a criminal trial where it belongs, on the state.  The prosecution must prove that the defendant is guilty beyond a reasonable doubt; the defense is under no obligation to prove that the defendant is innocent.  In a criminal proceeding all the defense has to do is raise a reasonable doubt as to the guilt of the accused.

It is of course deeply unfortunate that Trayvon Martin died young of a gunshot wound.  But he brought about that result himself by recklessly attacking a man who then, naturally, defended himself against Martin's deadly attack using deadly force.  Zimmerman did nothing legally impermissible. 

I wonder if Wolff thinks that Martin would have received justice if Zimmerman had been wrongly convicted.  I hope not.  Again, the crucial point here is that the purpose of a murder trial is not to secure justice for the victim, but to see if the  accused is first of all a killer, and then whether he is a murderer.   There is no doubt that Zimmerman killed Martin.  The question is whether or not the killing was legally justifiable.  And indeed it was found to be legally justifiable. 

If Zimmerman had been black and Martin Hispanic would the verdict have been the same? Yes.  Why not?  O. J. Simpson is black and the two people he slaughtered (Ron Goldman and Nicole Brown Simpson) were white, and yet O. J. was acquitted.

My second example is Roger L. Simon.  He thinks, as I do, that Zimmerman should never have been charged.  But he goes a step further when he writes:

Congratulations to the jury for not acceding to this tremendous pressure and delivering the only conceivable honest verdict. This case should never have been brought to trial. It was, quite literally, the first American Stalinist “show trial.” There was, virtually, no evidence to convict George Zimmerman. It was a great day for justice that this travesty was finally brought to a halt.

We all know Al Sharpton, the execrable race baiter of Tawana Brawley and Crown Heights, agitated publicly for this trial more than anyone else. But he most likely would not have succeeded had it not been for Obama’s tacit support. As far as I know this is unprecedented in our history (a president involving himself in a trial of this nature).

Looks like we have a nice little 'conversation' about race going here.  Too bad the conversants live on different planets. 

Related articles

On the Zimmerman Acquittal

The Case Against George Zimmerman

On the Zimmerman Acquittal

A. W. e-mails and I comment:

I know you've been following this case. I must say I'm impressed by the outcome. Even though I believed that Z's account of the events was consistent and that the prosecution's case was incredibly weak, I was expecting the all-female jury to cave in to the pressure and declare him guilty or, at least, to come back with a lesser charge.

MavPhil:  That's  what I was expecting: a cave-in by the female jurors and a manslaughter conviction.  So I was extremely pleased that justice was done.   The state had no case whatsoever as became very clear early on from the testimony of the state's own witnesses.  Objectively speaking, it was all over after John Good's cross-examination by the magnificent Mark O'Mara.  He impressed the hell out of me: calm, clear, respectful, logical, thorough, low-keyed, bluster-free.  A patient, relentless, digger for the truth.  Good was impressive as well. That segment of the trial made me very proud of our system.

Zimmerman should not have been charged in the first place, and initially he wasn't.  It was only after the race-baiters got wind of the story that local law enforcement buckled under national pressure.  Among the race-baiters was our very own hopelessly inept president, Barack  Obama, with his irresponsible remark to the effect that if he had a son, he would look like Trayvon Martin.  Here again we have Obama meddling in a local matter just as he did before about four summers ago in the Henry Gates affair. 

So was the trial about race or not? 

Objectively,  the case had nothing to do with race.  Objectively, the case was about the use of deadly force to repel an attack of deadly force.  A very fit young man physically assaults an obese, out-of-shape older man.  The older guy ends up on the ground with the younger guy on top of him doing the 'pound and ground,' slamming the older man's head into the pavement and telling him that tonight he will die.  Now is it legally permissible to use deadly force in a situation like this, a situation in which one is about to be killed or suffer grave bodily harm?  Yes, the law allows the use of deadly force in such a situation. Note that we are not talking about morality here, but about legality.  Whatever one's moral intuitions or moral theories, there is a hard fact about what the law permits, and that is not in dispute.  The only question is whether on that particular evening George Zimmerman was indeed fighting for his life. 

The defense team made a very strong case that he was on the bottom fighting for his life against the strapping youth who thought of him as a  "creepy-ass cracker."  The defense didn't have to make that strong case; all it had to do was show that the above was a likely scenario in order to raise a reasonable doubt about Zimmerman's guilt.  In a criminal proceeding the probative standard is set very high, and rightly so.  The accused is presumed innocent and the burden of proof rests on the prosecution to show that the accused is guilty of the crime charged beyond a reasonable doubt.  But the defense succeeded in doing both: it showed that Zimmerman  was not guilty beyond a reasonable doubt and, as O'Mara remarked after the trial, it proved that he was innocent.

So, objectively, the case had nothing to do with race.  The racial veneer was superadded by the race-baiters of the Left so that they could use this trial to further their own political agenda.  Among the race-baiters are the editors at the New York Times who decided that Zimmerman was a 'white Hispanic.'  They would never refer to Obama as a white black even though he is half-white and half-black.  They applied the 'white Hispanic' appellation in order to inject race into a non-racial case.  If both parties to the dispute were black or both Hispanic we wouldn't have heard about it.  Meanwhile, blacks are killing blacks in record numbers in Chicago and other places.

 

The Left is raging at the moment. They say young blacks aren't safe anymore. But, were they before this single incident? I haven't heard a single word about the dozens of young blacks who are murdered by other blacks every year. All I hear is a lot of moralizing about poverty, racism and gun legislation from upper-middle class people who live in 95% white communities and have never seen a gun in their lives.

 

I think it's something else. Maybe it's the realization that they're not so powerful. That their enormous govt.-approved media campaign to portray this as a racially motivated murder of a kid was not enough convince a jury of six women (which, by the way, included a black hispanic lady). That they could not only notice the absence of racist armed vigilantes on the hunt and young harmless children walking home, but also act accordingly.  Maybe it's too much for them, even after six years of getting everything they wanted.

MavPhil:  I basically agree with you.  Let the leftist loons rage.  It is music to my ears and blog-fodder for my blog.  We conservatives are going to have a lot of fun exposing their contemptible lies and inanities. 

Related articles

Race and Grievance

The Case Against George Zimmerman

Morality, Religion, Law

The positive law codifies moral judgments the chief vehicle of which is religion.  Attacks on religion therefore tend to undermine morality, and with it, the rule of law and respect for the rule of law.  Is this thesis supportable?

Religion could be kept private  and out of the public square.  Many think that it should be.  But law can't:  the whole point of law is to set forth prescriptions and proscriptions for the behavior of citizens, especially in their relations to one another. The suggestion that religion be relegated to the private sphere is not incoherent.  The suggestion that law be so relegated surely is.

Law, however, presupposes morality: the positive law is largely a codification of our moral judgments as to the permissible, the impermissible, and the obligatory. We have laws against drunk driving, for example, because of our antecedent conviction that it is morally wrong to act in ways that needlessly endanger ourselves and others.  The legal rests on the moral: legal normativity is grounded in moral normativity.  If a law is genuinely normative, then it derives that normativity from a sound moral basis; otherwise the law is merely the say-so of legislators and not deserving of respect, though it might be something to fear.  But while the legal rests on the moral, it must not be conflated with it.  One proof of this is that laws can be morally evaluated.  Morally sane people have no trouble  pronouncing certain laws immoral.  One thinks of the Nuremberg Laws of the Third Reich. It would be no defense of these laws to insist that they were legal and enacted according to all the relevant protocols of the judicial system then and there in effect.   'Illegal law' is a contradition in terms.  'Immoral law' is not.  The positive law is subject to moral evaluation.

Now the chief vehicle of morality for most people is and has been for centuries religion.  The Ten Commandments, for example, are to be found in the Old Testament, and are at the ethical center of both Judaism and Christianity.  There is much more to both religions than their respective ethical teachings, and there is much more to their ethical teachings than the Decalogue; but the latter is surely at the center of the ethical doctrine of  both religions.

Attacks on religion, therefore, are indirect attacks on the morality of which religion is the vehicle, as well as indirect attacks on the law that codifies the morality.  

Consider drunk driving again.  It is illegal.  And it ought to be: its legal impermissibility is morally defensible.  To mount  a moral defense of the law you have to argue from some moral principle or principles.  Ultimately you will be arguing from "Thou shalt not kill,"  one of the Ten Commandments.  Because we judge it immoral to  take innocent human life, we also judge it immoral (thought not as immoral) to recklessly endanger human life as drunk drivers do.

"But couldn't one keep the moral prohibitions against killing, stealing, lying, etc. as a basis of public policy while relegating the religious 'packaging' to the private sphere?"

There are two questions here.  The deeper one concerns the foundation of morality.  To put it graphically, can the normativity of Judeo-Christian ethics survive the death of God?  That may not be the best way to frame the question, but it conveys its flavor.  My present concern, however, is with a less deep question:  Does it make sense to attack the main means for the majority of people to acquire moral formation and guidance?

You know what my answer is.

Related articles

What Does Abortion Have to Do with Religion?

Government as secular religion

The Problem: Gun Culture or Liberal Culture?

The New Jim Crow Again

Daniel M. writes:

Coincidentally, I'm currently a TA for a class in which significant portions of this book have been assigned (a philosophy of law class, focusing on legal punishment).  Alexander's main focus in the book is not incarceration (and related phenomena) in general, but the War on Drugs in particular.  An important part of her case for the racially discriminatory nature of "mass incarceration" (a phrase by which she means (a) the entire system of state-control over offenders, whether prison, parole, probation, etc., as well as (b) the post-punishment effects on offenders such as barriers to voting, employment, public housing) in the U.S. is the claim that black Americans are no more likely to use/deal illegal drugs than are white Americans, and yet law enforcement have disproportionally targeted black Americans.  She thinks that this discrimination largely results from the great procedural discretion which law enforcement have in prosecuting this War (both at the level of police forces and individual officers in deciding where/whom to search, and at the level of prosecutors in deciding what kind of sentences to seek).  This discretion, along with the need to be proactive in order to bust people for drug offenses, creates the opportunity for racial biases, whether conscious or unconscious, to shape how the War is prosecuted.

When I read the bit you did, my first thought was that it was ridiculous to compare Cotton's political "disenfranchisement" to his KKK-killed great-grandfather's political disenfranchisement.  I still think that about this case (homicide/robbery...), but I did become more sympathetic to the idea that there were interesting connections between Jim Crow and "mass incarceration."  The main difference is that the "New Jim Crow" is officially "colorblind," not a result of overt racism (at least by and large).  The official aim is to maintain "law and order," not to sweep black Americans into the state's control.  The alleged parallel is that you have a class of people largely characterized along racial lines who are shut out of mainstream society in various ways (voting, public housing,employment).  The new reason, having a felony on your record, is very different - and, one might think, much more justified than the old reasons.  But I was struck by (a) the claim that black Americans are not more likely to be guilty of drug crimes and yet are more likely to be targeted by law enforcement for them, and (b.) the severity of punitive measures attached to drug offences (including the felony label for many such offences, with all the ensuing ramifications).

Thank you for that, Dan. A few brief remarks:

1.  Are black Americans no more likely to use/deal illegal drugs than are white Americans?  I rather doubt that.  We know that blacks commit proportionately more crimes than whites in general, so one would expect that to be true for drug dealing in particular.  This is of course an empirical question, but it is exceedingly difficult to get to the truth of the matter because of the 'hot button' nature of the question and because fields such as sociology and criminology are heavily infected with ideology.  For example, how many conservative sociologists are there in universities as compared to leftists?  A very small number.  What does that say about universities and about sociology?  Given the leftist bias of most sociologists, it is reasonable to be skeptical about anything they claim is a result of 'research.'

2. Leftists conflate the world with the world as they wish it to be.  And they wish to believe that we are all equal.  And so they cannot accept the notion that blacks have a greater natural propensity to commit crimes than whites. This leads them to think that blacks are disproportionately 'targeted' and 'labeled' felons.  The truth, I suspect, is that blacks commit more crimes proportionately, which is why their rates of incarceration are proportionately  higher. 

3. This is consistent with a frank admission that there is plenty of injustice in the criminal justice  system.  There are corrupt judges, vicious cops, and ambitious prosecutors willing to sacrifice human lives to their careers. Needless to say, I am against all that.

4.  Why would anyone want to single out blacks for especially harsh treatment?  This is a question that needs answering, and 'racism' is no answer to it.  That word is well-nigh meaningless: it is is used by leftists as an all-purpose  semantic bludgeon to beat down conservatives.  It means anything leftists  want it to mean.  What is racism?  If I argue against ObamaCare, leftists call me a racist.  But ObamaCare is a policy, and policies, last time I checked, have no race.  So for leftists 'racism' and cognates mean everything and nothing.  Do people dislike blacks because of their skin color?  Perhaps a few do. But dislike of blacks is not for most people based on skin color but on black behavior. This brings us back to the empirical question whether blacks as a group behave worse than whites as a group.  If they do, then this would explain why they are incarcerated in greater numbers.

5. Should felons have the right to vote?  First of all, how many criminals want to vote?  The typical criminal is someone whose only concern is himself and the immediate gratification of his basest desires.  Such people have contempt for civil society.  They are not interested in participating in it.  For them it's a joke.  These are not people who think about the common good.  If you mentioned civic duties to them they would laugh their heads off.

So we need to ask: who is it that wants felons to vote?  Not felons for the most part.  But leftists!  Leftists want felons to vote to expand their base.  Leftists have a an exceedingly casual attitude toward criminal behavior.  They are by nature lenient and forgiving.  So if criminals are allowed to vote, they will of course vote for leftists, in the USA, for the Democrats.

That is why leftists want to extend the franchise to felons.

Whether or not they want to vote, should criminals have the right to vote?  Of course not.  Criminals can't even order their own lives, why should have a say in how society is ordered?   Furthermore, removal of the right to vote is part of the punishment that they deserve for raping and drunk driving and drug dealing and murdering and for being the generally worthless individuals that they are.

6. Finally, I am open to the idea that drug laws need to be carefully examined.  I am opposed to draconian 'zero tolerance' laws that make a felon of some harmless hippy who grows marijuana for his own use.  But if he drives while stoned, or sells the stuff to school kids, then I want the law to come down on his shggy head like a ton of bricks.

Beckwith, Hitch, and the Foundations of Morality

Here.  Excerpt:

. . . [Christopher] Hitchens writes that he and other atheists “believe with certainty that an ethical life can be lived without religion,” thus implying that he and others have direct and incorrigible acquaintance with a natural moral law that informs their judgments about what counts as an ethical life.

But to speak of a natural moral law – a set of abstract, immaterial, unchanging principles of human conduct that apply to all persons in all times and in all places – seems oddly out of place in the universe that Hitchens claimed we occupy, a universe that is at bottom a purposeless vortex of matter, energy, and scientific laws that eventually spit out human beings.

Right.  It is easy to confuse two very different questions, and Sam Harris, one of the Four Horsemen of the New Atheism, does confuse them as I argue here. 

Q1. Given some agreed-upon moral code, are people who profess some version of theism more 'moral,' i.e., more likely to live in accordance with the agreed-upon code, than those who profess some version of atheism?

However it be answered, (Q1) is not philosophically interesting, except as part of the run-up to a genuine philosophical question, though it is of interest sociologically.   Suppose we grant, arguendo, that the answer to (Q1) is in the negative.  Now contrast (Q1) with

Q2. Given some agreed-upon moral code, are atheists justified in adhering to the code?

The agreed-upon code is one that most or many atheists and theists would accept. Thus don't we all object to child molestation, wanton killing of human beings, rape, theft, lying, and swindling in the manner of Madoff? Even swindlers object to being swindled!  And in objecting to these actions, we mean our objections to be more than merely subjectively valid. When our property is stolen or a neighbor murdered, we consider that an objective wrong has been done. And when the murderer is apprehended, tried, and convicted we judge that something objectively right has been done. Let's not worry about the details or the special cases: killing in self-defense, abortion, etc. Just imagine some minimal objectively binding code that all or most of us, theists and atheists alike, accept.

What (Q2) asks about is the foundation or basis of the agreed-upon objectively binding moral code. This is not a sociological or any kind of empirical question. Nor is it a question in normative ethics. The question is not what we ought to do and leave undone, for we are assuming that we already have a rough answer to that. The question is meta-ethical: what does morality rest on, if on anything?

Beckwith is quite right that the naturalist/physicalist/materialist is going to have a hard time justifying his adherence to the moral prescriptions and proscriptions that most of us, theist and atheist alike, accept.  I would argue that a naturalist/physicalist/materialist ought to be a moral nihilist, and that when these types fight shy of moral nihilism that merely shows an inability or unwillingness on their part to appreciate the logical consequences of their own doctrine, or else some sort of psychological compartmentalization. 

I once knew a hard-assed logical positivist who during the work week practiced his positivism, but on Sundays attended Eastern Orthodox religious services.  He avoided cognitive dissonance by compartmentalizing.

The compartmentalized life is the suboptimal life.  Seek existential unity and consistency.

Alan Dershowitz on the Casey Anthony Trial

Here it is in toto with my comments in blue.

"This case [is] about seeking justice for Caylee . . . ." So argued the prosecutor in the Casey Anthony murder case. He was wrong, and the jury understood that.

A criminal trial is never about seeking justice for the victim. If it were, there could be only one verdict: guilty. That's because only one person is on trial in a criminal case, and if that one person is acquitted, then by definition there can be no justice for the victim in that trial.

Dershowitz is making an important point, but I wonder if his formulation isn't untenably extreme.  The important point is that a criminal trial can issue in the correct result whether or not justice is achieved for the victim.  If the correct result is an acquittal, then of course there is no justice for the victim in that trial.  But if the correct result is a conviction, then there is justice for the victim in that trial.  So why does D. say that a criminal trial is NEVER about seeking justice for the victim?  It seems to me that what he should say is that a criminal trial is not first and foremost about seeking justice for the victim, but about making sure that the defendant is not wrongly convicted.  Surely D. does  not want to suggest that criminal proceedings have nothing to do with justice.

The glory of our system of justice is the (defeasible) presumption of innocence:  the accused is presumed innocent until proven guilty.  This puts the burden of proof in a criminal trial where it belongs, on the state.  The prosecution must prove that the defendant is guilty; the defense is under no obligation to prove that the defendant is innocent.  In a criminal proceeding all the defense has to do is raise a reasonable doubt as to the guilt of the accused.

This is not well- or widely-understood.  Did you see The O'Reilly Factor last night?  The sweet Laura Ingram, who has been to law school, couldn't get through to the pugnacious and pig-headed O'Reilly.  He seemed not to understand the bit about presumption of innocence and burden of proof, nor did he seem to appreciate that the probative bar in a criminal trial is set very high:  the accused must be shown to be guilty beyond a reasonable doubt and not merely by a preponderance of the evidence.

A criminal trial is neither a whodunit nor a multiple choice test. It is not even a criminal investigation to determine who among various possible suspects might be responsible for a terrible tragedy. In a murder trial, the state, with all of its power, accuses an individual of being the perpetrator of a dastardly act against a victim. The state must prove that accusation by admissible evidence and beyond a reasonable doubt.

Yes indeed.

Even if it is "likely" or "probable" that a defendant committed the murder, he must be acquitted, because neither likely nor probable satisfies the daunting standard of proof beyond a reasonable doubt. Accordingly, a legally proper result—acquittal in such a case—may not be the same as a morally just result. In such a case, justice has not been done to the victim, but the law has prevailed.

This is basically right, but it should be pointed out that 'reasonable doubt' is a vague phrase. It would seem that at some point the probability that the defendant committed the murder would be so great that it becomes unreasonable to doubt that the defendant did it. Or is Dershowitz claiming that certainty is required for a legally proper conviction?

Ask yourself whether the following scenario would raise a reasonable doubt.  Jones is charged with murder.  His defense is that he has an identical twin brother who was kidnapped at birth but has recently surfaced in order to pin the murder on Jones.  No one is able to cast doubt on Jones' story: the defendant's parents are dead, the birth records were lost or stolen, etc.  There are credible eye witnesses that testify under oath that they saw Jones do the dastardly deed. But what they saw, of course, is consistent with the identical twin's having committed the crime. (Example adapted from James Cargile, "On the Burden of Proof," Philosophy, January 1997, p. 77)

 This scenario shows, I think, that it is not certain that Jones did the foul deed.  But ought this defense raise a reasonable doubt?  I would say no.  It is just too far-fetched and improbable.  So certainty cannot be required for a conviction.  If so, then probability would seem to be relevant, contrary to what Dershowitz claims.

For thousands of years, Western society has insisted that it is better for 10 guilty defendants to go free than for one innocent defendant to be wrongly convicted. This daunting standard finds its roots in the biblical story of Abraham's argument with God about the sinners of Sodom.

Abraham admonishes God for planning to sweep away the innocent along with the guilty and asks Him whether it would be right to condemn the sinners of Sodom if there were 10 or more righteous people among them. God agrees and reassures Abraham that he would spare the city if there were 10 righteous. From this compelling account, the legal standard has emerged.

That is an important point that those who wish to suppress every vestige of our Judeo-Christian heritage ought to think about.

That is why a criminal trial is not a search for truth. Scientists search for truth. Philosophers search for morality. A criminal trial searches for only one result: proof beyond a reasonable doubt.

Again, this strikes me as an extreme way of putting an otherwise excellent point.  Does the good professor mean to suggest that there is no search for truth in a criminal trial?  And does he really want to suggest that proof and truth have no relation one to the other?  Does he think that proof beyond a reasonable doubt does not make it more likely than not that truth has been reached?

A civil trial, on the other hand, seeks justice for the victim. In such a case, the victim sues the alleged perpetrator and need only prove liability by a preponderance of the evidence. In other words, if it is more likely than not that a defendant was the killer, he is found liable, though he cannot be found guilty on that lesser standard.

AP

That is why it was perfectly rational, though difficult for many to understand, for a civil jury to have found O.J. Simpson liable to his alleged victim, after a criminal jury had found him not guilty of his murder. It is certainly possible that if the estate of Caylee Anthony were to sue Casey Anthony civilly, a Florida jury might find liability.

Exactly right.

Casey Anthony was not found innocent of her daughter's murder, as many commentators seem to believe. She was found "not guilty." And therein lies much of the misunderstanding about the Anthony verdict.

True, she was found 'not guilty.'  That is the correct terminology.  And to be found not guilty is not the same as to be innocent.  The misunderstanding of some commentators is to think that being found not guilty is an affirmation of the defendant's innocence.  The finding of 'not guilty,' however, is nothing more than the judgment that the evidence for conviction was insufficient, that the defendant was not proven guilty beyond a reasonable doubt.  That is of course consistent with the defendant having committed the crime with which she is charged.

This misunderstanding is exacerbated by the pervasiveness of TV shows about criminal cases. On television and in the movies, crimes are always solved. Nothing is left uncertain. By the end, the viewer knows whodunit. In real life, on the other hand, many murders remain unsolved, and even some that are "solved" to the satisfaction of the police and prosecutors lack sufficient evidence to result in a conviction. The Scottish verdict "not proven" reflects this reality more accurately than its American counterpart, "not guilty."

'Not proven' is actually a better and more accurate phrase. 

Because many American murder cases, such as the Casey Anthony trial, are shown on television, they sometimes appear to the public as if they were reality television shows. There is great disappointment, therefore, when the result is a verdict of not guilty. On the old Perry Mason show, the fictional defense lawyer would not only get his client acquitted but he would prove who actually committed the murder. Not so in real life.

The verdict in the Casey Anthony case reflected the lack of forensic evidence and heavy reliance on circumstantial inferences. There was no evidence of a cause of death, the time of death, or the circumstances surrounding the actual death of this young girl. There was sufficient circumstantial evidence from which the jury could have inferred homicide. But a reasonable jury could also have rejected that conclusion, as this jury apparently did. There are hundreds of defendants now in prison, some even on death row, based on less persuasive evidence than was presented in this case.

Juries are not computers. They are composed of human beings who evaluate evidence differently. The prosecutors in this case did the best they could with the evidence they had, though I believe they made a serious mistake in charging Casey Anthony with capital murder and introducing questionable evidence, such as that relating to the "smell of death" inside the trunk of Casey Anthony's car.

The defense also made mistakes, particularly by accusing Ms. Anthony's father of sexually abusing her. Although they leveled this unfounded accusation in an effort to explain why Casey had lied, it sounded like the kind of abuse excuse offered to justify a crime of violence. But a criminal trial is not about who is the better lawyer. It is about the evidence, and the evidence in this case left a reasonable doubt in the mind of all of the jurors. The system worked.

Farrell, "Tookie," Hannity and Colmes, and Bad Arguments

My last post ended with a reference to "Tookie" Williams.  Here is a post from the old Powerblogs site dated 29 November 2005:

I just viewed the Stanley "Tookie" Williams segment on Hannity and Colmes. Williams, co-founder of the L.A. Crips gang, and convicted of four brutal murders, faces execution on December 13th in   California.  Here is a description of one of his crimes. 

What struck me was the low level of the debate. Actor Mike Farrell, as part of his defense of Williams, and in opposition to the death  penalty in general, remarked that "we shouldn't lower ourselves to the level of the perpetrators of violent crime." The implied argument, endlessly repeated by death penalty opponents, is something like this: Since killing people is wrong, the state's killing of people is also wrong; so when the state executes people, it lowers itself to the level of the perpetrators of violent crime.

Now this argument is quite worthless. If it were any good, then, since incarcerating people is also wrong, the state's incarceration of people is wrong. And so on for any penalty the state inflicts as
punishment for crime.

The trouble with the argument is that it proves too much.  If the argument were sound, it would show that every type of punishment is impermissible, since every type of punishment involves doing to a person what otherwise would be deemed morally wrong. For example, if I, an ordinary citizen, demand money from you under threat of dire consequences if you fail to pay, then I am committing extortion; but  there are situations in which the state can do this legitimately as when a state agency such as the Internal Revenue Service assesses a fine for late payment of taxes. (Of course, I am assuming the moral  legitimacy of the state, something anarchists deny; but the people who give the sort of argument I am criticizing are typically liberals who believe in a much larger state than I do.)

So the 'argument' Farrell gave is quite worthless. But Hannity let him escape, apparently not discerning the fallacy involved. Farrell and Hannity reminded me of a couple of chess patzers. One guy blunders, and the other fails to exploit it.

But that's not all. Alan Colmes jumped in with the canard that people who are pro-life should also be opposed to the death penalty, as if there is some logical inconsistency in being pro-life (on the abortion issue)  and in favor of capital punishment for some crimes. I refute this silly 'argument' here.

Even more surprising, however, is that Sean Hannity then committed the same mistake in reverse, in effect charging Farrell with being inconsistent for being pro-choice (which he grudgingly admitted to being after some initial prevarication) and anti-capital punishment.

What people need to understand is that the two issues are logically independent. There is nothing inconsistent in Farrell's position. He could argue that the fetus simply lacks the right to life while   "Tookie" and his ilk possess the right to life regardless of what they have done. Nor is there anything inconsistent in Hannity's position. He could argue that the fetus has the right to life while a miscreant like "Tookie" has forfeited his right to life by his commission of heinous crimes.

So the logical level is low out there in the Land of Talk and I repeat my call for logico-philosophical umpires for the shout shows. But I  suspect I am fated to remain a vox clamantis in deserto.

Capital Punishment Again

Philoponus e-mails:

  

On this issue, we are on the same page--I think we should celebrate our agreements! In fact, I probably support a broader use of CP than you do. I think CP a condign punishment for things like aggravated sexual assault on a minor, aggravated assault with torture, etc.

 

I know people who are Amnesty International members. When they start on this stuff about wrongful executions, I stop them and demand a list of the people whom they think wrongfully executed in the U.S. in the last 20 years. Some facts please! They come up with NO credible cases. They talk about a somewhat mentally impaired killer executed in Texas and another in Florida, but these people admitted their killings and juries considered their impairment at trial. It is clear that  in the cases they point to what they disagree with is law which allows CP rather than a flawed trial process. The verdicts were good verdicts. I personally see absolutely no reason to consider lower than normal IQ an excuse or mitigation for egregious crimes.

  

Some people are just opposed to CP whatever the facts and arguments. Fortunately they are minority in most US states. The argument that CP in the US is killing the wrongfully convicted is getting very hard to sustain. 30 years ago when I took my first course in criminalistics, it was a much more persuasive argument, but the advances in the last 30 years have been huge. The scientific evidence that can be extracted from a crime scene is amazing. O. J. Simpson was very lucky!

  

The average U.S. Death Row innate gets 14 years to appeal his sentence. Project Innocence helps prisoners with any sort of reasonable appeal, and appellate courts even in TX, VA and FL are very generous in considering credible appeals. The standard in these courts is really "above and beyond a resonable doubt" if there is any grounds for doubt. No human institution can be perfect. Nothing can guarantee that a wrongfully convicted person won't be executed, but I think this result is VERY unlikely in the US these days. When someone tells me no one deserves to be executed, I feel obliged to treat them to a graphic murder-by-murder tour of the careers of Bundy, Gacy, and Mike Ross. People need to know exactly what these murderers did to women and boys. This inevitably ends the debate--they have no stomach for the facts.

 

Clarity will be served if we distinguish two claims that the CP-opponent could be making:

 

1. Even if there were no actual or possible cases of a wrongfully convicted person being executed, CP would still be an unjust penalty and should be banned.

 

2. Because there is the possibility of wrongful convictions, CP should be banned.

 

Like you, I cannot fathom how any rational and morally percipient person could embrace (1).  But I find (2) less objectionable, though I reject it as well.  I think the conservative must simply accept the possibility of wrongful executions and then argue that this possibility does not by a long shot outweigh the gross injustice of allowing the most vicious murderers to live on in comfort at tax payer expense for years. 

 

But I now want to point out that you seem to be contradicting something implied by what you were maintaining earlier.  Earlier, you denied that there is a difference between being found guilty and being guilty, even when all the procedural rules in a trial have been scrupulously followed.  That implies, however, that there cannot be a wrongful conviction.  But above you speak as if there can be wrongful convictions for capital crimes, adding that this is very unlikely. 

 

If you maintain against the CP-opponents that wrongful convictions are nowadays extremely rare, then by maintaining that you concede that wrongful convictions are possible (and not just in an anemic logical sense) and that therefore the property of being found guilty in a properly conducted trial of such-and-such charge is not identical to the property of being guilty of said charge. 

 

As for the broadened use of CP mentioned in your opening paragraph, consider arson.  A  man deliberately and maliciously sets a forest ablaze.  In the course of combating it, several firefighters lose their lives.  In addition, countless animals are either killed or deprived of habitat.  And there is property damage in the millions.  Doesn't CP at some point become a condign punishment?  I say yes.  What rational objection could one have to that?

 

It is indeed a strange world.  We in the West coddle the most vicious criminals.  In the Islamic lands hands are cut off for theft.  Both sides have lost their collective minds, though they are far, far worse.   They stone to death the woman caught in adultery and we wring our hands over the execution of a scumbag like 'Tookie' Williams.

Three Arguments Against Capital Punishment Rebuilt?

A  reader e-mails:

I wondered whether I could rebuild the three arguments against capital punishment that you claimed to have demolished in your post:

In 1), you say:

If the wrong person has been executed, that person cannot be restored to life. Quite true. It is equally true, however, that if a person has been wrongly imprisoned for ten years, then those years cannot be restored to him. So the cases are exactly parallel.

I want to examine the nature of this idea that in both cases above the punishment cannot be reversed or restored in some sense. Some punishments can be reversed or restored in a reasonable sense: if the state wrongly fines me for a parking infringement, that fine can be refunded to me (plus interest/compensation as appropriate) in the event that I prove there was no parking infringement. The cases above are not like that: in the case of imprisonment, the punishment cannot be reversed because there is no sense in which someone can have ten years of their life restored; in the case of execution, the punishment cannot be reversed because there is no way in which the executed can be restored to life. But here's the crucial difference between these two cases and why you are wrong to say that the cases are 'exactly parallel'. In the case of imprisonment, reversal/restoration is impossible because of the nature of the punishment. In the case of execution, reversal/restoration is impossible in principle (because there is no longer any person and therefore no way in which their punishment can be reversed). Us liberals take issue with this a priori rejection of punishment reversal.

I don't think you are making your point as clearly as you might.  What you want to say is that, in the case of the unjust imprisonment, some compensation is possible whereas in the case of an unjust execution, no compensation is possible.  That is a good point, and I accept it.  The parallel is that in both cases something is taken away from the unjustly punished individual, something that cannot be restored: ten years of freedom in the one case, life itself in the other.  So there is an exact parallel with respect to what was taken from the individual by the punishment.  For in both cases what was taken away cannot be restored.  So if you say that the capital penalty is irreversible, and that that is your reason for opposing capital punishment, then I will say that, by parity of reasoning, imprisonment should also be opposed since it too is irreversible.  And then you have 'proven too much.'

To be found guilty is not to be guilty. So a reasonable justice system must have built into it mechanisms by which miscarriages of justice (which might be established in the light of new evidence, for example) can be compensated. Capital punishment removes such mechanisms which is partly why I reject it.

An interesting argument.  Perhaps it could put as follows:

a. Every just punishment allows for the possibility of rectification in the case of a false conviction.
b. No instance of capital punishment allows for the possibility of rectification in the case of a false conviction.
Ergo
c. No instance of capital punishment is just.

The argument is valid, and we both accept (b).  But this is equally valid:

b. No instance of capital punishment allows for the possibility of rectification in the case of a false conviction.
~c. Some instances of capital punishment are just .
Ergo
~a. Some just punishments do not allow for the possibility of  rectification in the case of a false conviction.

I support (~c) by invoking the principle that the punishment must fit the crime and that therefore some crimes deserve capital punishment.  If this doesn't convince you then I say that that the two arguments just given neutralize each other, in which case we have a stand-off.

Argument 2) I think probably boils down to an impasse. There are clearly punishments which, though they involve the state acting in a way that in other circumstances would be impermissible, society feels are acceptable: imprisonment (which under other circumstances would be kidnap), fines (which under other circumstances would be extortion). But there are other possible punishments which, though (because?) they would involve the state acting in a way that in other circumstances would be impermissible, society feels are unacceptable: the rapist is not raped, the arsonist does not have his house burnt down, the drunk-driver who kills a child does not have his own child killed by state-sanctioned drunk driver. You say capital punishment fits with the first class of punishments. I say the second.

That too is an interesting point.  We don't subscribe to the principle of 'an eye for an eye.'  Thus we don't gouge out the eye of the eye-gouger; we don't sodomize the sodomizer; set afire the bum-igniter, etc.  Your point, I take it, is that if we don't do these things, then we ought not kill the killer. But 'killing' is a generic term that covers a multitude of ways of killing:  one can kill by stabbing, poisoning, drowning, choking, dismembering, burying alive, detonating, etc.  So, while agreeing that we ought not stab the stabber, dismember the dismemberer, etc., it does not follow that we ought not kill the killer if the killing is done in a humane way.

I've heard it said that lethal injection is "cruel and unusual punishment," but that's risible.  Say that, and you've drained the phrase (which occurs in the U. S. Constitution) of all definite meaning.

I'd like to pick up on the deterrence point in argument 3). In order for capital punishment to be an effective deterrent I would argue that would-be criminals must a) fear death and b) be cognizant of the fact that some crimes are capital crimes. I don't mean that they must 'know' that some crimes are capital crimes in some vague, non-immediate sense, like the sense in which I know that three of Wittgenstein's brothers committed suicide - a fact I had not recalled for some time until a moment ago. No, I mean that would-be criminals must be aware of the fact that some crimes are capital crimes in strong sense: a sense in which a fact affects your actions. I would wager that a) is at least contestable: drug lords live under the distinct possiblity of execution, without due process or lethal injection, by rival drug lords but it doesn't seem to affect their actions. And b) is debatable in the sense that some crimes are crimes of passion, crimes committed whilst drunk or high or otherwise in a mentally-altered state ('So we should let them off?!' you say. No, of course not. But capital punishment is unlikely to deter them).

When I said that swift and sure execution  would have a deterrent effect I didn't mean for all. The examples you give are plausible.  How much deterrent effect?  Who knows.  But it would be a substantial one.

I love the blog.

Thank you for reading and for the response!

Three Arguments Against Capital Punishment Demolished

1. One could be called the 'epistemological' argument: it can't be known that one accused of a capital crime is guilty.  The argument sometimes takes this enthymematic form:

P2. Capital punishment is sometimes inflicted on the innocent.
Therefore
C. Capital punishment ought to be banned.

But this argument is invalid without the auxiliary premise:

P1. Any type of punishment that is sometimes inflicted on the innocent ought to be banned.

In the presence of (P1) the conclusion now follows, but  (P1) cannot be accepted. For if we accept it, then every punishment ought to be banned. For every type of punishment  has been at some time meted out to the innocent.  Obviously, to be found guilty is not to be guilty. Our first argument, then, suffers from probative overkill: it proves too much. I reject the argument for that reason, and you ought to too.

If the wrong person has been executed, that person cannot be restored to life.  Quite true. It is equally true, however, that if a person has been wrongly imprisoned for ten years, then those years cannot be restored to him.  So the cases are exactly parallel.  At this point liberals will often say things that imply that their real objection to capital punishment is that it is capital.  Well, yes, of course: it has to be.  For the punishment must fit the crime, and anything less than capital punishment for certain crimes violates the self-evident moral principle that I put in italics.  Justice demands capital punishment in certain cases.  If you don't agree, then I say you are morally obtuse.  On this issue which divides Right and Left either you see that justice demands capital punishment in certain cases or you are morally blind. End of discussion.  To argue with the morally blind is as pointless as arguing with the color-blind and the tone-deaf.

2. Another argument repeatedly given against capital punishment is that it involves doing to a person what in other circumstances would be deemed morally wrong. We could call it the 'consistency argument.'  The argument is that, since killing people is  wrong, then the state's killing of people is also wrong. The trouble with this argument, however, is that it, like the preceding argument, 'proves too much.'  

For if the argument were sound, it would show that every type of  punishment is impermissible, since every type of punishment  involves doing to a person what otherwise would be deemed morally wrong. For example, if I, an ordinary citizen, demand money from you under threat of dire consequences if you fail to pay, then I am committing extortion; but there are situations in which the state can do this legitimately as when a state agency such as the Internal Revenue Service assesses a fine for late payment of taxes.  (Of course, I am assuming the moral legitimacy of the state,     something anarchists deny; but the people who give the sort of argument I am criticizing are typically liberals who believe in a much larger state than I do.)

The state is a coercive entity that limits the liberties of individuals in all sorts of ways.  It has to be coercive to do its job.  If you hold that the state is practically necessary and morally justifiable, then you cannot reasonably balk at the state's killing of certain of its citizens.

If justice demands the execution of certain miscreants -- and it does -- then this justice must be administered by some agency.  It had better be an agency dispassionate and impartial hedged round by all sorts of rules and safeguards. Otherwise vigilantism.  The job falls to the state.

3. And then there is the 'cost' argument.   The idea is that capial punishment is not cost-effective. It is claimed that the benefit to society does not outweigh the cost. A utilitarian might be able to rig up such an argument, but I am not a utilitarian. The issue is one of justice. Justice demands capital punishment in certain cases, and it doesn't matter what it costs, or whether there is any benefit to society, or even whether there is any society to benefit. (Recall Kant's last man example.)

In any case, there is nothing necessary about high costs. They could easily be reduced. A limit could be set to appeals -- and ought to be set to them. Endless appeals make a mockery of justice. And if   malefactors were executed in a timely fashion, the deterrent effect would be considerable. Thus the 'no deterrence' argument is also worthless in my opinion.  Apart from the suicidal, people love life -- criminals included.  Swift and sure execution for capital crimes could not fail to have a deterrent effect.

I will add that if it could be shown that in some jurisdiction the capital penalty was not being applied fairly and justly (due to prejudice against people of Middle Eastern descent, let us say), then I would support a moratorium on the penalty in that jurisdiction. But this question is distinct from the question of principle.  That alone is what I have been discussing.

Proceduralism: Lotteries, Elections, Trials

What is the essence of proceduralism?  I suggest: the criteria by which we judge that such-and-such is the case are constitutive of what it is for such-and-such to be the case.  Or perhaps: the norms governing the validity of the 'output' of a procedure are identical to the procedural rules whereby fair are distinguished from unfair procedures.  But I had better give an example, and pronto.

1. Lotteries.  About (fair) lotteries we ought to be (pure) proceduralists.  That is, we ought to hold that the procedure by which it is determined that a certain number is the winning number constitutes what it is to be the winning number.  Of course I am assuming that the lottery procedure is fair: the selection process is random, and so on.  So assume we have a fair lottery and that Wealthy Willy wins a pile of loot.  Surely the following questions are senseless:  Did Willy really win?  Or was he merely judged to have won by the lottery officials?  Isn't it possible that the lottery procedure, though fair and unbiased, selected the wrong winner? Isn't it possible that Impecunious Ike, or some other guy, is the real winner?

The point could be put as follows. With respect to lotteries, it is broadly-logically impossible that a person instantiate the property being judged to be a winner of lottery L and not instantiate the property being a winner of lottery L.

When it comes to lotteries, proceduralism is the only game in town.

2.  Elections.  The same, I think, goes for elections.  If Snerdly gets more votes than the other candidates, he becomes president of the chess club. Surely it would be senseless to question whether Snerdly has really been elected, as if he could have an 'elective status' independently of the (fair) procedure by means of which he either wins the office or not. 

In both the lottery and election cases one could of course maintain that there is something unfair, though not procedurally unfair, about the result.  If Wealthy Willy, who needs no money, wins a million then that will be perceived as an unfair outcomes by the other players, all of them poor schmucks.  But this is irrelevant to the point.  It is also irrelevant to Snerdly's 'legitimacy' that he is not competent to be president if you assume that he was fairly elected.

3. Trials.  Suppose a man is found guilty of a crime in a court of law in which all the proper procedures have been followed.  Assume that the prosecution, the defense, the judge, and the jury are all highly competent and morally above reproach.  The man has been found guilty of committing some crime; can one nevertheless reasonably ask whether he in fact committed the crime?  In the case of Wealthy Willy, one cannot reasonably ask whether he in fact won:  his having won just is his being-judged-to-have-won by the lottery officials. 

If a sharp thinker insists that even in the Willy case  there is a distinction between the two properties, I will cheerfully concede the point and congratulate the thinker on his intellectual acuity; but I will go on to insist that the distinction obtains only on the 'intensional plane' and not on the 'extensional plane.'  For surely it is impossible that Willy or anyone instantiate the first property without instantiating the second.

So, extensionally, there is no distinction in the case of Willy between the property of having won and the property of having-been-judged-to-have-won.  My question is whether, extensionally, there is a distinction between being guilty and being found guilty in a properly conducted court of law.

My answer is in the affirmative.  This implies that there is at least a serious question as to whether proceduralism holds with respect to legal trials.  A rational person must be a proceduralist when it comes to lotteries, but he needn't be when it comes to the law.

But I am prepared to make a stronger claim.  Not only is there a serious question as to whether proceduralism holds with respect to legal trials, proceduralism does not and cannot hold with respect to them.  For it is not perfectly obvious that people have been tried, convicted, and executed for crimes they did not commit?  They were found guilty but they were not guilty in fact.  All the procedures were properly followed and they were found guilty beyond a reasonable doubt. But they were not guilty in fact.

4. One might object to the foregoing as follows:

Look, we are agents, not transcendental spectators,  and we have to come to intersubjectively binding and enforceable decisions in a timely fashion about matters of moment in conditions in which certain knowledge is rarely available.  Sure, Jones is conceivably innocent despite having been found guilty in the eyes of the law.  His guilt or innocence is not constituted by his being found guilty or innocent.  But that is a merely theoretical consideration.  For all practical purposes to be found guilty is to be guilty. After all, there is no other way  we have of reliably determining guilt and innocence apart from the court sytem.  We cannot call God on the phone.  He is incommunicado, the hot line to the divine having been down for some millenia now.  Given that there is no other equally efficacious procedure available, for practical purposes the 'ouput' of the legal procedure is identical to the objectively correct 'output.'

This objection concedes the main point I wanted to make, namely, that one cannot be a (pure) proceduralist when it comes to legal trials.  This objection is the  best I can do by way of a charitable interpretation  of certain recent animadversions of commenter Philoponus  in the comment thread to this post.  But perhaps I haven't understood him. 

On Being Guilty and Being Found Guilty

Blogging has been good to me.  I have met a number of very interesting and intellectually stimulating characters via the blogosphere.  I had breakfast with four of them last Sunday morning: Peter L., Mike V., Carolyn M. and Seldom Seen Slim.  Topics included logic and existence, the concept of sin, the question why be moral, and the distinction between being guilty and being found guilty in a court of law.

Slim and I found ourselves in that dialectical situation known as a disputation or dispute.  Douglas N. Walton, a noted writer on informal logic, defines the term as follows. "A dispute is a dialogue in which one side affirms a certain proposition and the other side affirms the opposite (negation) of that proposition." (Informal Logic: A Handbook for Critical Argumentation, Cambridge UP, 2007, p. 60.)  I affirmed the proposition that to be found guilty/not guilty in a court of law is not the same as to be guilty/not guilty.  Slim affirmed the negation, namely, that to be found guilty/not guilty  is the same as to be guilty/not guilty.  The distinction strikes me a self-evident; but Slim denied it and I could not budge him from his position. 

While thinking further about the matter yesterday, the following argument occurred to me which strikes me as decisive.

Here are two questions we can ask with respect to burden-of-proof (BOP) considerations as they figure in our legal system.  First, why is a BOP assigned at all?  (One can imagine courtroom proceedings in which no BOP is assigned.) Second, why is it assigned to the prosecutor/plaintiff?  Part of the answer to the first question is because a decision must be made, a question resolved, a dispute adjudicated -- and in a timely manner.  If there is no presumption on one side or the other, or, correlatively, no BOP assigned to the other side or the one, then in cases where the evidence is evenly balanced or unclear a decision might be not be achievable in a reasonable time.  But why lay the BOP on the state or the plaintiff or their respective representatives?  At least part of the answer to this second question is that we collectively judge it to be better that a guilty person go free than that an innocent person be wrongly convicted.

Now if Slim grants me this obvious point, then I have all I need to refute his assertion.  To prefer that a guilty man go free than that an innocent man be penalized and in some cases executed  is precisely to presuppose my distinction between being guilty/not guilty  and being found guilty/not guilty in a court of law.  He who denies this distinction removes the main reason for the presumption of innocence, a central pillar of our legal system.

Apparently, Slim thinks there is no objective fact of the matter as to whether or not a person accused of a crime is guilty of it or not.  He seems to think that a guilty verdict or an acquittal is what makes one either guilty or not guilty.  To my mind this is utterly preposterous.  It elides the obvious distinction between a fallible judgment about the way things are and the way things are.

My point goes through even if there is no distinction betweem morality and legality.  Suppose there is no distinction between a morally wrong killing of a human being  and a legally wrong killing of a human being, that the former collapses into the latter.  (Someone who holds this could argue that abortion is legal and so ipso facto moral.)  Even so, either Jones killed Smith in a legally proscribed manner or he did not -- regardless of a court's verdict.  There are hard facts about what the law proscribes, and there are hard facts about Jones' behavior in relation to Smith.  Those two sets of fact taken together determine whether he is guilty or not guilty.

There is only one way I can imagine my distinction collapsing.  In the divine court, if such there be, there cannot be any discrepancy between being found guilty and being guilty, nor between being found innocent and being innocent.  The distinction would hold only on the intensional plane; extensionally there would be no possibility of a person beng found guilty/not guilty and being guilty/not guilty.  Here below, however, we are stuck with fallible courts.  And it is a curious form of idolatry to suppose that our fallible courts can do what only the divine court can do.

Libertarians and Drug Legalization

Libertarians often argue that drug legalization would not lead to increased drug use.  I find that preposterous, and you should too.  There are at least three groups of people who are dissuaded from drug use by its being illegal.

1. There are those who respect the law because it is the law.  'It's against the law' carries weight with them; it has 'dissuasive force.'  For these people the mere fact that X is illegal suffices for them to refrain from doing X.  It doesn't matter for the purposes of my argument how many of these people there are or whether they are justified in respecting the law just because it is the law.  The point is that there are such people and that the mere illegality of doing X supplies a motive for their not doing X. 

Now suppose the legal prohibition on doing X is removed.  Will every one in this first class begin doing X?  Of course not.  The point is that some will.  So it should already be clear to anyone with common sense and no ideological axe to grind that drug legalization will lead to increased use.

2. There are those who may or may not respect the law because it is the law, but fear the consequences of getting caught breaking it.  These people don't like rude encounters with cops, jail time, fines, loss of reputation, etc.  Among these people are libertarians who favor legalization and have no respect for current drug laws but obey the current laws out of fear of the consequences of breaking them.

3. There are also those who are quite confident that they can avoid the consequences of breaking the drug laws, but fear the consequences of contact with drug dealers. They fear being cheated out of their money, being given diluted or poisoned product, etc.

Now take the logical sum, or union, of the three classes just menioned.  The membership of that union is significant. Legalize drugs and some of those people will begin using drugs.  And of those who begin, some will end up abusing them, becoming addicted, etc.

Therefore, it is utterly preposterous to claim as libertarians typically do that drug legalization will not lead to increased use.  So why do people like Ron Paul  make this claim?  It is hard to figure.  Why say something stupid that makes your case weaker than it is?  Is it just knee-jerk oppositionalism? (I can't find my  old post on knee-jerk oppositionalism, but I'll keep looking.) 

Why did Paul say, "How many people here would use heroin if it were legal? I bet nobody would."?  That's just a dumbass thing to say.  Paul is assuming that whether one does X or not has nothing to do with whether X is legally permissible or legally impermissible.  He is assuming that people who use drugs will use them no matter the law says, and that people who do not use drugs will refrain from using them no matter what the law says.  That is a bit of silliness which lies beneath refutation.  So again I ask:  why do libertarians maintain extremist stupidities when there are intelligent  things they can say?

After all, libertarians do have a case.  So my advice to them would be to concede the obvious -- that legalization will result in greater use -- and then argue that the benefits of legalization outweigh the costs.  They will then come across, not as fanatical deniers of the obvious, but as reasonable people who understand the complexity of the issue.

As for Ron Paul, I'm afraid he has already blown his 2012 chances with his remarks on heroin.  It's too bad.  The country needs to move in the libertarian direction after decades and decades of socialist drift.  But the American people do not cotton to fanatics and the doctrinaire. 

Kierkegaard on the Impotence of Earthly Power

  The following passage from Concluding Unscientific Postscript embodies a penetrating insight:

. . . the legal authority shows its impotence precisely when it shows its power: its power by giving permission, its impotence by not being able to make it permissible. (p. 460, tr. Swenson & Lowrie)

My permitting you to do X does not make X permissible.  My forbidding you to do X does not make X impermissible.  My permitting (forbidding) is justifed only if what I permit (forbid) is in itself permissible (impermissible).  And the same goes for any finite agent or collection of finite agents. A finite agent may have the power to permit and forbid, but it cannot have the power to make permissible or impermissible.  Finite agency, then, betrays its impotence in exercising its power.

For example, the moral permissibility of killing in self-defense is what it is independently of the State's power to permit or forbid via its laws.  The State cannot make morally permissible what is morally permissible by passing and enforcing laws that permit it.  Nor can the State make morally impermissible what is morally permissible by passing and enforcing laws that proscribe it.

Here below Might and Right fall asunder: the powerful are not always just, and the just are not always powerful.  But it would be a mistake to think that the mighty cannot be right, or that the right cannot be mighty.  The falling asunder is consistent with a certain amount of overlap.

Power does not confer moral justification, but neither does impotence.  (For example,the relative weakness of the Palestinians relative to the Israelis does not confer justification on the Paestinian cause or its methods.)  See The Converse Callicles Principle: Weakness Does Not Justify.

The State is practically necessary and morally justifiable.  Or so I would argue against the anarchists.  But fear of the State is rational: its power is awesome and sometimes misused.  This is why the State's power must be hedged round with limits.

We don't know whether or not God exists.  But we do know that nothing is worthy of being called God unless it is the perfect harmonization and colaescence of Might and Right, of Power and Justice, of Will and Reason. 

Tough questions:  Could such a transcendental Ideal (in Kant's sense) be merely a transcendental Ideal impossible of existence in reality?  And could anything impossible count as an ideal?  But if God is possible would he not have to be actual?

Too Many Laws

You've heard me say it before.  Laws should be few in number, rational in content, enforceable, and enforced.  As it is, we have too many laws, indeed, too many 'Ls':  too many laws, lawyers, legislators (most of whom are lawyers), and liberals.  How can a government claim to be representative of the people when it is top-heavy with lawyers?  That is a question that ought to be asked.  While you're at it, ask whether it might not be a good idea to have some de-legislators in among the legislators.

America is Drowning in Law.

Supererogation and Suberogation

It would be neat if all actions could be sorted into three jointly exhaustive classes: the permissible, the impermissible, and the obligatory. These deontic modes would then be analogous to the alethic modes of possibility, impossibility, and necessity. Intuitively, the permissible is the morally possible, that which we may do; the impermissible is the morally impossible, that which we may not do; and the obligatory is the morally necessary, that which we must do.

Pursuing the analogy, we note that the following two alethic modal principles each has a deontic analog, where 'p' ranges over propositions and 'A' over actions:

1A. If p is necessary, then p is possible, but not conversely.
1D. If A is obligatory, then A is permissible, though not conversely.

2A. P is impossible iff ~p is necessary.
2D. A is impermissible iff ~A is obligatory. (e.g. Sexually molesting children is impermissible iff not sexually molesting children is obligatory.)

But of course the following ab esse ad posse principle has no deontic analog:

3A. If p is true, then it is possible that p is true.
3D. If A is done, then A is permissible.

This is not surprising since the deontic is a species of the normative.

Now let's try to characterize (not define) the deontic concepts of the permissible, the impermissible, and the obligatory in terms of the axiological concepts of good and bad:

4. If A is impermissible, then A is bad to do and good to leave undone.
5. If A is obligatory, then A is good to do and bad to leave undone.
6. If A is permissible then A is axiologically indifferent: neither bad to do and good to leave undone, nor good to do and bad to leave undone.

These characterizations seems to leave conceptual room for two other sorts of actions, actions that are good to do but NOT bad to leave undone, and actions that are bad to do but NOT good to leave undone. The former are supererogatory in a wide sense of the term, and the latter are suberogatory.

For example, paying one's bill in a restaurant is (legally and morally) obligatory: it is good to pay the bill and bad to leave without paying. But tipping is (legally, though perhaps not morally) supererogatory: it is good to tip but not legally required, and in this sense not bad to leave no tip. If this is unclear, consider tipping in excess of 20%. Surely this would be supererogatory: good to do (ceteris paribus) but not bad to leave undone. One could plausibly argue that restaurant patrons are morally obligated to tip in the amount of 15-20% of the tab given that waiters and waitresses work for minimum wage and rely on tips for a livable wage; but surely no one is obligated to leave a 50% tip, say. And yet it would be a very nice thing to do for that pretty waitress working her way through school. It would be good to do but not bad to leave undone.

Do you balk at calling such trifling actions supererogatory because they are not grand or heroic like throwing oneself on a grenade to save one's buddies? Well then, I will accommodate your point by distinguishing between wide and narrow senses of 'supererogation.' Or I might just give you the word as long as you grant me a category of actions an example of which I have just provided.

Now for some examples of suberogation. A supererogatory act is a good act that is in excess of what is morally or legally required. A suberogatory act is then one that is bad but not so bad as to be impermissible. The following might be examples: talking too much, public displays of affection, breaking wind in public, picking one's nose in front of others. The practitioner of public rhinotillexis does nothing legally or morally impermissible, but it is something bad, and not just aesthetically. I want to say that it is a morally bad action that not impermissible. So I say it is suberogatory.

More needs to be said. I am not sure that in the end the sub- and supererogatory don't collapse into the permissible thus obviating the need for two further categories of actions. Further reading: the SEP article, Supererogation.

Mel Gibson, Misplaced Moral Enthusiasm, and Real Threats

Mel Gibson is in the news again.  What I said about him on 1 August 2006 bears repeating:

What's worse: Driving while legally drunk at 87 miles per hour in a 45 mph zone, or making stupid anti-Semitic remarks? The former, obviously. And yet a big stink is being made about  Gibson's drunken rant. I call this misplaced moral enthusiasm.

Calling a Jew a bad name won't kill him, but running him over in your speeding 2006 Lexus LS 430 will. On the one hand, offensive words that no reasonable person could take seriously; on the other hand, a deed that could get people killed.

Here is what Gibson said: "The Jews are responsible for all the wars in the world," and, addressing the arresting officer, "Are you a Jew?" Now compare Gibson with Iran's Mahmoud Ahmadinejad who repeatedly has called for the destruction of the State of Israel. Ahmadinejad's is speech that incites unspeakable violence, unlike Gibson's drunken rant which is no threat to anyone. So let's forget about Gibson, and concentrate on real threats.

Church, State, and Arizona SB 1070

E. J. Montini of the Arizona Republic reports that ". . . one of the lawsuits challenging SB 1070 is based on the notion that the law inhibits First Amendment freedom to worship."  As Montini correctly states, "Among other things, SB 1070 makes it a crime to knowingly transport, harbor, conceal or shield an illegal immigrant if you do so while committing a separate criminal offense."

This provision of the law will of course cause trouble for those pastors and other church members who transport illegals to and from church functions.  Suppose Pastor X is pulled over for a traffic violation while shuttling a group of illegals.  Said pastor is liable to prosecution under the 1070 law.  That is as it should be since the pastor is aiding and abetting the flouting of U. S. law.

But by what stretch of logic does one conclude that violators of U. S. immigration law are having their First Amendment rights violated?  They have no such rights!  Those are rights of U. S. citizens, not rights of anyone, citizen or not.  But even if you think that illegal aliens do have First Amendment rights, or some analogous universal human right, there is nothing in 1070 that prohibits the free exercise of religion on any reasonable construal of 'prohibit.'    The right to the free exercise of religion does not give one the right to do anything in the free exercise thereof.

Take a simple example.  Catholic priests cannot be prohibited by the state from saying mass.  To do so they need wine.  But there are laws against theft, so they need to come by their wine by some legal means.  Now suppose some benighted liberal argues that the laws against theft inhibit the First Amendment freedom to practice one's religion by prohibiting the stealing of wine and other supplies needed at mass.  Anyone can see that to argue in such a way would be a joke.  To take a more drastic case, suppose there is a Satanic ritual that requires the killing of cats.  No sane person could argue that the laws against cruelty to animals interfere with the First Amendment rights of satanists.

Similarly with 1070.  No rational person could argue that it inhibits First Amendment rights.  The right to practice one's religion does not give one the right to break laws in its practice.

Churchmen need to reflect carefully on their relation to the State.  If they flout its laws, and in so doing undermine the rule of law, then who will protect them when they need it?  Will the good pastors who aid and abet illegal aliens forego calling up the police when they need protection?  Will they try to have it both ways, deriving the benefits from the rule of law while undermining it?

Guns in the Delusional World of the Leftist

Your typical leftist wants it to be illegal for a citizen to own  a gun for self-defence.  In recent news, an 80 year old Chicago man shot and killed an armed  home invader thereby defending himself, his elderly wife and his grandson.  Well done, old man,  a boon service to humanity.  The miscreant was a scumbag with a long rap sheet.  But in Chitown it is illegal to own a handgun!  That bespeaks a  serious paucity of common sense in the Windy City.  There ought not be any such law.  But since there is, it must be enforced.  Right?  In the topsy-turvy world of leftist 'thought,' one enables the criminal while penalizing the decent citizen.

Laws should be few in number, rational in content, clear and concise in formulation, enforceable, and enforced.  Laws should not be passed for 'feel good' purposes, to show that one is a bien-pensant 'caring' liberal.  All reasonable people abhor gun violence.  But the solution is not legislation that will be ignored by malefactors and serve only to hamstring the law-abiding.

Another Round with Reppert on AZ SB 1070: Reasonable Suspicion

In his most recent post on this topic, Victor Reppert tells us that his "main concern is with the 'reasonable suspicion' clause. That strikes me as horribly vague."  Here is the relevant SB 1070 passage as amended by HB 2162 which contains the clause in question:

For any lawful contact stop, detention or arrest made by a law enforcement official or a law enforcement agency of this state or a law enforcement official or a law enforcement agency of a county, city, town or other political subdivision of this state in the enforcement of any other law or ordinance of a county, city or town or this state where reasonable suspicion exists that the person is an alien who and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation. 

Reppert continues:

In our state, most illegals are Hispanics, but most Hispanics are not illegals. If you define your conception of what it takes to have reasonable suspicion, and on my blog I made an un-remarked-upon recommendation that we have reasonable suspicion just in case we have objective criteria leading to the conclusion that it is more likely than not that the person is illegal, then you could at least eliminate the worst of the profiling problems. You can't just stop a Hispanic and make an immigration status inquiry, because being Hispanic is not sufficient for it to be more than 50% likely that the person is here illegally. (Emphasis added)

I believe Reppert is missing the point here.  I agree with the last quoted sentence.  But the  1070 law does not mandate that Hispanics be stopped at random to have their status checked.  The law clearly states the conditions under which an immigration inquiry may proceed:

1.  There must be a lawful stop, detention, or arrest.

2. The stop, detention, or arrest must be made in the enforcement of a law other than 1070.

3.  There must be reasonable suspicion that the person is an illegal alien.

4.  The immigration inquiry must be practicable.

5.  The immigration inquiry must not hinder or obstruct an investigation.

I should think that Reppert's 50% rule is satisfied if all the conditions are observed.  For example, during a lawful traffic stop, the cop has the right to ask for a driver's license.  If the Hispanic driver has no license, no proof of insurance, no registration, has a campesino sticker on his bumper, is driving a junker, etc.  then the the chance that he is illegal is way over 50%.

There is a distinction I made earlier which is very important and which Reppert may be ignoring, the distinction between a law and its enforcement.  If a law is reasonable and just, it is these things whether or not some cowboy of a cop oversteps his legitimate  authority in its enforcement.  It would be absurd to argue that a particular law should be repealed because there may be abuses in its enforcement.  For any such argument would 'prove too much': it would prove that every law ought to be repealed.  For every law is such that an abuse can occur in its enforcement.

Illegal Immigration, The Catholic Bishops, and the Misuse of Scripture

(Written 26 April 2006, revised 23 May 2010)

At the website of the U.S. Conference of Catholic Bishops, we read:

Why is the Catholic Church involved in the immigration issue? There are several reasons the Catholic Church is involved in the  immigration debate. The Old and New Testaments, as well as the encyclicals of the Popes, form the basis for the Church's position.  In Gospel of Matthew, Jesus calls upon us to "welcome the  stranger,for what you do to the least of my brethren, you do unto me. " (Mt. 25-35, 40).

There is a deep mistake being made here, and we should try to understand what it is. The mistake is to confuse the private and public spheres and the different moralities pertaining to each.

Note first that if one scriptural passage can be invoked as a basis for public policy and law, then any can. We are enjoined in other New Testament places to "Resist not the evildoer," "Turn the other cheek," and the like. 

Injunctions such as these cannot be made the basis for public policy whatever value they have in the private sphere.

Imagine a society that implements a policy of not resisting (apprehending, trying, convicting, incarcerating) rapists, murderers, and miscreants generally. Such a society would seal its own death
warrant and cease to function. It is a fact of human nature that people, in the main, behave tolerably well only under threat of punishment. People for the most part do not do the right thing because  it is the right thing, but out of fear of punishment. This is not pessimism, but realism, and is known to be true by all unprejudiced students of history and society.  Conservatives know this 'with their bones'; liberals need to learn it the hard way.  Therefore not even a 'Christian' society can afford to make "Resist not the evildoer" a principle of public policy.

As for turning the other cheek, it is a policy that works well in certain atypical circumstances. If a man has a well-formed conscience, and is capable of feeling shame, then turning the other cheek in the face of his affront can achieve a result far superior to that achieved by replying in kind. Nonviolence can work. Gandhi's nonviolent resistance to the British may serve as an historical example. The Brits could be shamed and in any case Gandhi had no other means at his disposal. But imagine what would happen if Israel turned the other cheek in the face of its Islamist enemies who would blow it off the face of the earth at the first opportunity?

Once your enemy has reduced you to the status of a pig or a dog fit only to be slaughtered, then there is no way to reach him, shame him, or persuade him by acts of forebearance and kindness. You must resist him, with deadly force if necessary, if you wish to preserve your existence.  The evil triumph when the good fail to defend themselves.

But is it not better to suffer wrong than to inflict it, as Socrates maintained? Would it not be better to perish than to defend one's life by taking life? Perhaps, but only if the underlying metaphysics and
soteriology are true. If the soul is immortal, and the phenomenal world is of no ultimate concern -- being a vale of tears, a place through which we temporarily sojourn on our way to our true home --
then the care of the soul is paramount and to suffer wrong is better than to inflict it.

The same goes for Christianity which, as Nietzsche remarks, is "Platonism for the people." If you are a Christian, and look beyond this world for your true happiness, then you are entitled to practice
an austere morality in your private life. But you are not entitled to impose that morality and metaphysics on others, or demand that the State codify that morality and metaphysics in its laws and policies. For one thing, it would violate the separation of Church and State. More importantly, the implementation of Christian morality would lead to the destruction of the State and the State's ability to secure life, liberty, and property -- the three Lockean purposes for which we have a state in the first place.

The problem of confusing private and public morality is well understood by Hannah Arendt ("Truth and Politics" in Between Past and Future, Penguin 1968, p. 245):

The disastrous consequences for any community that began in all earnest to follow ethical precepts derived from man in the singular -- be they Socratic or Platonic or Christian -- have been frequently pointed out. Long before Machiavelli recommended protecting the political realm against the undiluted principles of the Christian faith (those who refuse to resist evil permit the wicked "to do as much evil as they please"), Aristotle warned against giving philosophers any say in political matters. (Men who for professional reasons must be so unconcerned with "what is good for themselves" cannot very well be trusted with what is good for others, and least of all with the "common good," the down-to-earth interests of the community.) [Arendt cites Nicomachean Ethics, Book VI, and in particular 1140b9 and 1141b4.]

There is a tension between man qua philosopher/Christian and man qua citizen. As a philosopher/Christian, I am concerned with my soul, with its integrity, purity, salvation. I take very seriously indeed the Socratic "Better to suffer wrong than to do it" and the Christian "Resist not the evildoer." But as a citizen I must be concerned not only with my own well-being but also with the public welfare. This is true a fortiori of public officials and people in a position to influence public opinion, people like Catholic bishops. So, as Arendt points out, the Socratic and Christian admonitions are not applicable in the public sphere.

A Catholic bishop, therefore, who is pro illegal immigration on the strength of the "welcome the stranger" passage demonstrates a failure to understand the simple point that Arendt undescores.

What is applicable to me in the singular, as this existing individual concerned with the welfare of his immortal soul over that of his perishable body, is not applicable to me as citizen. As a citizen, I
cannot "welcome the stranger" who violates the laws of my country, a stranger who may be a terrorist or a drug-smuggler or a human-trafficker or a carrier of a deadly disease or a person who has no respect for the traditions of the country he invades; I cannot aid and abet his law-breaking. I must be concerned with public order and the very conditions that make the philosophical and Christian life possible in the first place. If I were to aid and abet the stranger's lawbreaking, I would not be "rendering unto Caesar the things that are Caesar's."

Indeed, the Caesar verse provides a scriptural basis for Church-State separation and indirectly exposes the fallacy of the Catholic bishops who cannot comprehend the simple distinctions I have tried to set forth.

More on Immigration Law: Arizona House Bill 2162. Response to Reppert

On Friday, Arizona Governor Jan Brewer signed HB 2162 which modifies and clarifies SB 1070 which was signed into law the week before.  Here is a passage from 1070 which is constantly misrepresented in the liberal press, including the Arizona Republic newspaper:

FOR ANY LAWFUL CONTACT MADE BY A LAW ENFORCEMENT OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE WHERE REASONABLE SUSPICION EXISTS THAT THE PERSON IS AN ALIEN WHO IS  UNLAWFULLY PRESENT IN THE UNITED STATES, A REASONABLE ATTEMPT SHALL BE MADE,  WHEN PRACTICABLE, TO DETERMINE THE IMMIGRATION STATUS OF THE PERSON. (lines 20-26, p. 1)

The misrepresentors leave out (intentionally?) the bit about 'lawful contact.'  Where the bill has 'lawful contact,' the 1070 fact sheet has 'legitimate contact.'  It amounts to the same: lex, legis, is Latin for 'law.'  Now 'lawful contact' would naturally be interpreted to refer to contact between a law enforcement officer and a person during the course of a traffic stop and similar situations where a law has been broken.  Victor Reppert, in his response to me, makes a good point.  Because 1070 makes it a state crime to be an illegal alien, "it would seem to me that any attempt to determine whether the crime of being here illegally had been committed would constitute a legitimate [lawful] contact. "  Whether or not this is so, the house bill  provides clarification of 'lawful contact' and removes Reppert's worry:

Legal Insurrection

A blawg by William A. Jacobson, Associate Clinical Professor of Law, Cornell Law School, Ithaca, NY.  I came to it via Keith Burgess-Jackson.  Jacobson has his head screwed on Right.  Get thee hence, learn and enjoy.

Laws of Nature, Civil Laws, and the Idea of 'Breaking' a Law

In Kant on Miracles,  I wrote:

The advantage of the epistemic approach [to miracles] is that it rescues us from the rank absurdity, pointed out by Hume, of having to say that there are laws of nature that admit of exceptions. Since our understanding is imperfect, our formulations of the laws of nature will some of them admit of exceptions. But it is hard to credit the idea that the laws themselves could admit of exceptions.

This assertion that (deterministic) laws cannot have exceptions drew heavy fire. 'Ockham' commenting at my old blog, wrote:

If a law couldn't be broken, why do we ever use the word 'broken' in the same vicinity as 'law'? Indeed, at this point I could use a 'contrast argument' which I know Bill hates. It only makes sense to talk about laws not being broken, if laws can be broken. Ergo, laws can be broken.

We do speak of breaking laws and of laws being broken. But this is almost always in the context of civil (legal) laws and moral laws. The latter are prescriptive and proscriptive: You shall do X and you shall refrain from doing Y. Laws of these forms are often broken.  But when they are broken, this has no tendency to show that they are not valid or binding. Legally and morally, one must feed one's children; but it would be absurd to argue that since some parents do not feed their children that these laws do not hold.

But in the case of laws of nature, violations do show that they are not valid. A law of nature that could be violated would not be a law of naure. A legal or moral law that could not be violated, by contrast, would not be a legal or moral law. The latter are 'laws of freedom,' laws that legislate with respect to free beings. A necessary feature of them is that they allow the possibility of their own violation. By contrast, a necessary feature of laws of nature is that they be exceptionless.

The necessity that attaches to moral and legal laws is moral necessity or obligatoriness. Now the following is a consistent set: {It is obligatory that All Fs are Gs; Some Fs are not Gs). By contrast, the necessity that attaches to laws of nature is nomic necessity. The following is an inconsistent set: {It is nomically necessary that All Fs are Gs; Some Fs are not Gs.)

If we bear clearly in mind the distinction between laws of nature on the one hand, and legal/moral laws on the other, then we will not speak of the breaking of laws of nature.

With respect to Ockham's contrast argument, I concede that it is bound up with the very sense of 'legal/moral law' that it be possible for such laws to be broken. But a law of nature is not a law in this sense. Events in nature can neither abide by laws of nature nor break them. That one and the same word 'law' is used both for legal/moral imperatives and also for nature-descriptive declaratives is an interesting fact, but it looks to be a case of pure equivocation.

All Legislation Legislates Morality

One often hears people say, 'You can't legislate morality!' People who say this are often people who confuse the genus morality with the species sexual morality. But even upon acquiescence in this genus-species confusion, it is obvious that we can, do, and ought to legislate morality. After all, we have laws against rape, and we ought to have them. Rape is both immoral and illegal, and it is right that it be illegal. The fundamental problem, however, is the confusion of morality with sexual morality. That the two are distinct should be self-evident, hence I won’t spare the reader the pleasure of providing his own examples. But perhaps I should give one example to prime the pump of the reader's thinking. Suppose a woman poisons her husband in order to collect on a life insurance policy. The act is immoral but has nothing to do with sex in the way that committing adultery has something to do with sex.