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 | Sunday, June 28, 2009 at 4:07:59 mst
Comment ID: #1
Name: Paul Lin
E-mail: paul.lin(at)hushmail.com
I discover someone who claims they are an Objectivist but their writings contradict with their claim. When I test them, they fail. I am just wondering if anyone has encountered the same thing. What do you usually do? |
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| Sunday, June 28, 2009 at 6:13:32 mst
Comment ID: #2
Name: Cogito
E-mail: shea.levy(at)gmail.com
I'm interested in studying Aristotle in the best way possible: from Aristotle himself. Is there any particular order to reading his works that you recommend? |
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| Sunday, June 28, 2009 at 7:47:05 mst
Comment ID: #3
Name: Dan
Here's a suggested order for reading Aristotle:
1. Nicomachean Ethics (because easiest)
2. Physics (harder, but not the hardest--discussion of causes therein permeates Aristotle's work)
3. Metaphysics (includes discussion of law of non-contradiction)
4. The Organon (Categories, On Interpretation, Prior Analytics, Posterior Analytics, Topics)
That's the groundwork. From there, I think you can let interest determine what comes next. I recommend:
On the Soul (De Anima)
On the Heavens (De Caolo)
History of Animals
Parts of Animals
Poetics
Politics
Rhetoric |
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| Sunday, June 28, 2009 at 9:04:12 mst
Comment ID: #4
Name: BrianS
Atlas Shrugged keeps making inroads into the culture and society. First there was the massive increase in its sales. Then there was popular spread of the idea 'Going Galt'. Now Instapundit is talking about 'Going Hank Rearden'. :D
http://pajamasmedia.com/instapundit/80918/ |
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| Sunday, June 28, 2009 at 9:48:09 mst
Comment ID: #5
Name: Daniel
URL: http://thenearbypen.blogspot.com
A quote by Luther Burbank on raising children:
From page 191 and 192: "'Don't feed children on mauldlin sentimentalism or dogmatic religion,' he urged his listeners. 'Give them nature. Let their souls drink in all that is pure and sweet. . . . Let nature teach them the lessons of good and proper living, combined with an abundance of well-balanced nourishment. Those children will grow to be the best men and women. Put the best in them by contact with the best outside. They will absorb it as a plant does sunshine and the dew.'"
More quotes on the same topic at the blog.
http://thenearbypen.blogspot.com/2009/06/luther-burbank-on-raising- ...
Also, for those living in the city, the New American Wing at the MET is open. Aside from the awe-inspiring Diana (by Saint Gaudens) there are two Daniel Chester French sculptures, and even one by MacMonies. Looks like good stuff to me, though sadly I won't be making my annual trip back to the US this year.
http://thenearbypen.blogspot.com/2009/06/behind-scenes-look-at-new- ... |
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| Sunday, June 28, 2009 at 10:08:26 mst
Comment ID: #6
Name: Daniel
URL: http://thenearbypen.blogspot.com
Paul:
If someone claimed to be an Objectivist to me yet contradicted it with something they wrote, I'd most likely show them the contradiction--and see their response to that.
If the contradiction was an obvious one and the person was being dishonest in not recognizing it, I'd simply move on. However, if the contradiction wasn't so obvious--or fundamental--and if that person meant something to me, I'd stick around and try to explain or understand.
Two examples: A person says they're an Objectivist who believes in God. No point arguing much with this person. Bye bye. A person says they're an Objectivist but wrote that the government should not privatize the education system. I'd try to understand what they meant here--is it an issue of timing? an actual view that kids should be compelled to go to school and others should be compelled to pay for it? etc.
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| Sunday, June 28, 2009 at 11:45:08 mst
Comment ID: #7
Name: Patrick Reynolds
E-mail: preynol(at)twmi.rr.com
Recently someone wrote in saying that if licensing and regulation were removed, rational self-interest would kick in and insure that proper standards are being applied yet news reports seem to indicate that when people are left unaccountable to others, rational self-interest fails to kick in to protect either the person or the people who are being adversely affected by a lack of standards.
Bernard Madoff, who managed the largest recorded ponzi scheme so far, rather than employing his rational self-interest, fleeced numerous people and charities instead.
http://news.bostonherald.com/news/regional/view/20090625quincy_man_ ...
http://www.businessweek.com/ap/financialnews/D990E9F00.htm
http://www.bizjournals.com/pacific/stories/2009/06/22/daily38.html
When left to themselves, the Detroit school system treated the taxpayers money and school assets as their own and stole from it rather than employing rational self-interest to even protect themselves from crimimal charges.
http://www.detnews.com/article/20090627/SCHOOLS/906270351/1026/DPS- ...
None of the people in the Detroit school system who are under investigation are stupid. Most if not all have bachelor's degrees and many have their masters.
These examples just barely scratch the surface of the problem. In all cases, the government had to step in to halt the current abuses and make changes to prevent further abuse. So what happened to the rational self-interest (the great guarantee that things would be better without some type of third-party regulation or oversight) that was supposed to kick in when people were left to their own devices and not accountable to others? |
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| Sunday, June 28, 2009 at 12:07:49 mst
Comment ID: #8
Name: William B.
E-mail: wbeaumo1(at)gmail.com
I'm having trouble reconciling the argument that the financial crisis was caused by government regulations with the stupid behavior of many private lenders, especially those who didn't bother to verify the stated income of their borrowers. How was government coercion directly or indirectly responsible for the latter idiocy? |
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| Sunday, June 28, 2009 at 12:23:51 mst
Comment ID: #9
Name: Anthony
It's not government's fault that private lenders made bad loans, it's government's fault that those bad loans are going to hurt us all. |
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| Sunday, June 28, 2009 at 12:33:38 mst
Comment ID: #10
Name: djr
E-mail: dan.rohr(at)yahoo.com
The government was (and is) corrupting the money and the cost of borrowing money by engineering both to fit altruist needs rather than squaring with reality. Not all regulations put the brakes on, some push things in a direction. (I know I’ll be slammed for the implication that the “Fed” is an independent corporation (not really government). My answer: BS!)
Community Reinvestment Act " nudge (blunt) lenders away from red-lining weak borrowers.
Fanny (and other welfare institutions) were backstopping all of these loans. There was little incentive for lenders to look out for their own ass " they knew they’d dump theses loans.
Goofy tax schemes favoring equity loans to put your cars, c/c, vacation on your mortgage helped enable stupid borrowing.
Regulations (countless piles of printed letters forming obscure words, stung together in phrases of contradictions " devoid of concepts) convinced most people that “somebody’s got your backside”, and we needn’t worry about policing our investments. In reality, it’s done the opposite " it keeps pushing the visibility of the goings-on deeper into the belly of an unknowable and ever changing bureaucratic beast.
So long as altruism and anti-reason rule the day, they will continue tweaking, until there’s nothing left to tweak (they will pursue controlling everything right up to the point where they can no longer control anything). |
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| Sunday, June 28, 2009 at 12:53:48 mst
Comment ID: #11
Name: BrianS
"if licensing and regulation were removed, rational self-interest would kick in and insure that proper standards are being applied"
"Bernard Madoff, who managed the largest recorded ponzi scheme so far, rather than employing his rational self-interest, fleeced numerous people and charities instead."
"the Detroit school system treated the taxpayers money and school assets as their own and stole from it rather than employing rational self-interest to even protect themselves from crimimal charges.
"what happened to the rational self-interest (the great guarantee that things would be better without some type of third-party regulation or oversight)"
Patrick appears to be under the mistaken impression that leaving people free will eliminate crime. That is simply a false premise. There will be criminals under ANY system. To see that, one need look no further than the non-free, government-forced school system example he provides. As such, pointing to criminals as an indictment of freedom is simply absurd.
Patrick here is simply using the same 'argument' as the white racist who points to all the crimes committed by blacks and says "See? Dem Negroes is jus' no goods. We sets 'em free and they jus' goes ta stealin', raping' an murdrin'. They's all GOTS ta be slaves 'cause they jus' can't handle bein' free." |
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| Sunday, June 28, 2009 at 12:55:43 mst
Comment ID: #12
Name: rrlv_frsh
Regarding consumer protection (posts #7 and #8 in this thread):
This topic is succinctly analyzed in _Capitalism:__The_Unknown_Ideal_, Chapter 9, "The Assault on Integrity." (Not authored by Ayn Rand, but endorsed by her at a time decades ago when the then-young author was still an avid supporter of Objectivism.)
Here are some representative excerpts:
1. Importance and value of reputation:
"Reputation, in an unregulated economy, is thus a major competitive tool.... It requires years of consistently excellent performance to acquire a reputation and to establish it as a financial asset. Thereafter, a still greater effort is required to maintain it...."
2. Consumer protection by government force undermines reputation as a value:
"The attempt to protect the consumer by force [government regulation] undercuts the protection he gets from incentive.... The value of a reputation rested on the fact that it was necessary for the consumers to exercise judgment in the choice of the goods and services they purchased. The government's 'guarantee' undermines this necessity; it declares to the consumers, in effect, that no choice or judgemnt is required...."
3. It is government regulation that encourages immoral business policies:
"Regulation -- which is based on force and fear -- undermines the moral base of business dealings. It becomes cheaper to bribe a building inspector than to meet his standards of construction. A fly-by-night securities operator can quickly meet all the S.E.C. requirements, gain the inference of respectability, and proceed to fleece the public."
4. Government regulation is not a real alternative to reputation and free markets:
"Protection of the consumer by regulation is thus illusory. Rather than isolating the consumer from the dishonest businessman, it is gradually destroying the only reliable protection the consumer has: competition for reputation."
The article concludes with a brief discussion of preventive law inherent in government regulation, and the harm that it causes. The complete article is well worth careful study.
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| Sunday, June 28, 2009 at 13:03:01 mst
Comment ID: #13
Name: Anthony
"So what happened to the rational self-interest (the great guarantee that things would be better without some type of third-party regulation or oversight) that was supposed to kick in when people were left to their own devices and not accountable to others?"
Rational self-interest is not instinctual. It has to be learned. Religion has greatly infected our society today, and religion is the great enemy of rational self-interest. Rational self-interest is not being taught.
I think there is a terrible mistake being made by some people who are preaching capitalism as the savior to all of life's problems. Capitalism is only part of the solution. Capitalism does not guarantee that everyone will act in their rational self-interest. What it does is it shelters those of us who do act in our rational self-interest from those who do not. |
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| Sunday, June 28, 2009 at 13:25:20 mst
Comment ID: #14
Name: Tim Lee
Actually, it is the government's fault that private lenders made bad loans. The economic bust was caused by the Fed -- they forced interest rates below the natural rate of interest, creating an unsustainable credit expansion boom.
The interest rate is a price that would normally be limited by the amount of savings available for lending. Arbitrary credit expansion by government causes private lenders to miscalculate the real risk in making loans.
For the economic details as to why the Fed is primarily responsible, and why it is flying blind, please see the following paper by economist Roger W. Garrison: "Interest-Rate Targeting During the Great Moderation: A Reappraisal", http://www.cato.org/pubs/journal/cj29n1/cj29n1-14.pdf.
As far as explaining how we got into this mess, this general article is one of the best: "The Crisis in 10 Points" by Robert Stewart, http://mises.org/story/3263
Add to that an explanation of how the Fed naturally causes asset bubbles...
Gerald P. O'Driscoll Jr. explains in this article: "Asset Bubbles and Their Consequences", http://www.cato.org/pubs/bp/bp103.pdf.
One key quote: "In a vibrant market economy with technological innovation and ever new profit opportunities, the monetary policy that maintains price stability in consumer goods (or zero price inflation) requires substantial monetary stimulus. That stimulus will have a number of real consequences, including asset bubbles." |
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| Sunday, June 28, 2009 at 13:33:20 mst
Comment ID: #15
Name: Tim Lee
The blogging software interpreted the periods after the above links as part of the URL, so they come up as broken links.
Trying again...
For the economic details as to why the Fed is primarily responsible, and why it is flying blind, please see the following paper by economist Roger W. Garrison: "Interest-Rate Targeting During the Great Moderation: A Reappraisal" [ http://www.cato.org/pubs/journal/cj29n1/cj29n1-14.pdf ].
As far as explaining how we got into this mess, this general article is one of the best: "The Crisis in 10 Points" by Robert Stewart, http://mises.org/story/3263
Add to that an explanation of how the Fed naturally causes asset bubbles...
Gerald P. O'Driscoll Jr. explains in this article: "Asset Bubbles and Their Consequences", [ http://www.cato.org/pubs/bp/bp103.pdf ]. |
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| Sunday, June 28, 2009 at 16:46:15 mst
Comment ID: #16
Name: steven
There is no such thing as an unregulated market. Sheldon Richman has a very good article on this subject. You can read it at http://fee.org/articles/tgif/regulation-red-herring/. |
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| Sunday, June 28, 2009 at 18:16:47 mst
Comment ID: #17
Name: Patrick Reynolds
E-mail: preynol(at)twmi.rr.com
First of all, you completely misrepresented my position (no surprise there). I never stated anything in my post. I was just asking a question based on the prior statements of someone else.
Then your "intellectual" response is to call me a white racist. Is it your goal to suppress intellectual questions and discussions by calling others racists in a rant designed to suppress free speech and inquiry? You don't even know what race I am. Did you think I picked Detroit as an example out of thin air. Did you ever stop to think for a small second, assuming you do think, that I might be from there and would find your racist rant to be offensive? Or are you just a small-minded intellectual bully? |
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| Sunday, June 28, 2009 at 19:51:52 mst
Comment ID: #18
Name: BrianS
"your "intellectual" response is to call me a white racist"
LOL. Apparently Patrick is unable to distinguish between an accusation and an analogy.
"you completely misrepresented my position"
Ignoring the irony of that accusation for the moment, this is a false claim. Patrick looked at some instances of criminal behavior which can and do exist under every political system and then used these instances to indicate "rational self-interest" is somehow missing (ie "what happened to [it]?") - to indicate that it supposedly has not *replaced* unnamed and unidentified eliminated government "licensing and regulations". That is Patrick's "position" as *he* presented it. In other words, no misrepresentation at all.
Of course, the error of using such 'evidence' as the basis for Patrick to even raise this question has now been identified. |
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| Sunday, June 28, 2009 at 20:09:44 mst
Comment ID: #19
Name: William H Stoddard
E-mail: whswhs(at)mindspring.com
URL: http://whswhs.livejournal.com/profile
Over on the Steve Jackson Games fora, which I visit regularly, there has been a lot of discussion of politics and economics lately on one particular thread. Part of it has been a discussion of American medical policy. In the course of this, I spelled out what I thought were factors that (a) were important differences between American medicine and an actual free market and (b) helped make American medicine more expensive. This led to a comment from one of the other participants, an Australian economist named Brett Evill, about malpractice in particular. I thought it was interesting and might get interesting comments over here, so I got Brett's permission to quote his full comment. Here it is:
Also, those suits are decided by people to stupid to get out of jury duty, who lack the medical expertise to judge whether any malpractice actually occurred, and lack the economic expertise to estimate either the equivalent or the compensating variation of pain and suffering, and who have to judge on the basis of suborned testimony from expert "witnesses" who didn't see what happened, with the assistance of two highly-paid professional bamboozlers. The "experts" and the bamboozlers and even the judges have a vested interest in keeping lawsuits lucrative.
Obstetrics is one of the most expensive specialities to insure for. And the reason is largely that juries hold obstetricians liable for cerebral palsy in newborns. And they do this because "expert" witnesses testify that clumsy delivery causes hypoxia in the fetus, which causes cerebral palsy. To defend themselves against such suits, obstetricians have taken to performing a huge number of Caesarian sections, which are dangerous, harmful, and expensive: but can't possibly produce hypoxia through cord compression.
The thing is that the hypothesis that cerebral palsy is caused by anything that happens around the time of birth never did have any evidence behind it. When the evidence is carefully examined by statisticians the hypothesis turns out to be untrue. But plaintiff's attorneys can still find experts who will swear to it and pocket their fees. Besides which with experts contradicting each other juries are going to side with the sad family with the crippled kid. |
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| Sunday, June 28, 2009 at 20:28:51 mst
Comment ID: #20
Name: BrianS
William
In other words, the guy's complaint is essentially: the plaintiff is allowed to present a case against the defendant - and that juries are emotionalists? |
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| Sunday, June 28, 2009 at 21:04:44 mst
Comment ID: #21
Name: William H Stoddard
E-mail: whswhs(at)mindspring.com
URL: http://whswhs.livejournal.com/profile
Well, his complaint seems to be that juries are emotionalists and not likely to try to resolve difficult intellectual issues. My original complaint was that "pain and suffering" awards in malpractice suits were the sort of thing that could not be based on any objective criteria, and therefore made emotionalistic decisions unavoidable.
What I thought was interesting about his comment was the passage about the economic consequences of pain and suffering awards: rising costs of malpractice insurance, higher medical fees to pay for them, and doctors practicing defensive medicine at the expense of good medical procedure.
If we had a culture where the concept of objective law was widely understood, juries might make good decisions. But in our current culture, they're straws in the wind of emotionalism. Look at the grotesque claim that Sotomayor's "empathy" will make her a better Supreme Court judge. If even the highest court in the country decides cases by emotion rather than principle, what can be expected of day to day trials? Better to shut down the sort of legal cases that are based primarily on emotionalism in the first place. |
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| Sunday, June 28, 2009 at 21:18:44 mst
Comment ID: #22
Name: BrianS
"If even the highest court in the country decides cases by emotion rather than principle, what can be expected of day to day trials? Better to shut down the sort of legal cases that are based primarily on emotionalism in the first place."
Except you seem to be saying all cases are decided on emotionalism because in our culture the concept of objective law is not understood. |
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| Sunday, June 28, 2009 at 23:16:51 mst
Comment ID: #23
Name: William H Stoddard
E-mail: whswhs(at)mindspring.com
URL: http://whswhs.livejournal.com/profile
Brian,
I think I would have to say that I haven't thought the whole question through. I presented the original comment here to invite discussion that might help clarify the matter.
I think that when you're dealing with a law that makes the outcome of a case depend on something objective, it's not certain, in our society, that the trial will actually be objective of just. The jury may not understand the law or the evidence clearly, and they may have emotional biases and not clearly understand that it's their job to set those biases aside and reach objective decisions. But if you're dealing with a law that requires basing decisions on emotional criteria such as "pain and suffering," I'm not sure how you can even think of reaching an objective decision in the first place, even if you have jurors who want to do so. |
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| Monday, June 29, 2009 at 6:07:31 mst
Comment ID: #24
Name: Anthony
I read your links, Tim, and while I'm well aware that the government provided lots of incentives to encourage people to do the wrong thing, ultimately it was the responsibility of the lender and borrower to say "no". There was no law forcing lenders to offer no-income-verification loans. There was no law forcing borrowers to lie about their incomes.
"I saw that there comes a point, in the defeat of any man of virtue, when his own consent is needed for evil to win"and that no manner of injury done to him by others can succeed if he chooses to withhold his consent. I saw that I could put an end to your outrages by pronouncing a single word in my mind. I pronounced it. The word was 'No.'" |
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| Monday, June 29, 2009 at 8:36:34 mst
Comment ID: #25
Name: BrianS
William
In your last two posts, you focus on the issue of compensating for "pain and suffering" - ie the trauma caused by the alleged crime. Are you suggesting such compensation is not validly part of an objective system of law? Or are you merely suggesting today's juries are incapable of objectively determining the amounts of such compensation? |
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| Monday, June 29, 2009 at 8:48:51 mst
Comment ID: #26
Name: William H Stoddard
E-mail: whswhs(at)mindspring.com
URL: http://whswhs.livejournal.com/profile
Brian,
I don't know of an objective way to measure the extent of a person's pain and suffering. It seems to me that this legal principle amounts to inviting people to make a big dramatic show of how deep their anguish is, and how terrible their losses were, and the person who can best dramatize this gets the big bucks from the jury. In other words, it looks like a legal procedure based on taking need as a claim, and feelings as proof. Do you have in mind an alternative, objective basis for deciding how much pain and suffering is involved in an injury? I'd be interested to see a proposal for one. What we have now looks awfully "jokers wild" to me.
I'm referring, by the way, to civil awards of damages. So far as criminal law is concerned, there could be more severe penalties for, say, rape than for simple nonsexual assault and battery, if the legislators judged that the wrong inflicted was more grievous. But you would want to have objective criteria for when the more grievous wrong had occurred: "The accused vaginally penetrated the victim," but not "The victim felt sexually degraded by the expression and attitude of the accused." The question is "Did they do it?" and not "How did it make the victim feel?" |
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| Monday, June 29, 2009 at 9:22:16 mst
Comment ID: #27
Name: William H Stoddard
E-mail: whswhs(at)mindspring.com
URL: http://whswhs.livejournal.com/profile
In the same online discussion I referred to a few comments above, I have found some people explicitly avowing a dangerously wrong premise: That the rich have "power" over the poor in a capitalist society. Some of them, who seem to be more systematic thinkers, believe that anyone who spends money on anything is exercising power, and therefore that all market economies are systems of domination. Others, who are less systematic, seem to think that if you have a substantial disparity of wealth, the rich person has power over the poor person.
I was particularly struck by the one person who wrote out a long list of ways in which he could destroy my life if he were sufficiently wealthy. These included not only buying all the companies I now take assignments from and ordering them to stop doing business with me, but also buying up all the grocery stores in my community and telling them not to sell me food. His argument seemed to be, "If I can come up with a fantasy about what I could do if I were sufficiently rich and sufficiently malevolent, then whatever I fantasize about is a real danger of capitalism and a reason to oppose it." So he came up with classic fantasies about Evil Rich Guys not much different in spirit from Victorian melodramas about foreclosed mortgages, or medieval stories about the Wicked Jews.
Several things struck me about this:
If you actually look at economic history, the impact of capitalism has been to open up more possibilities for trade with more different people. If you lived in a medieval village, and the miller wouldn't grind your grain, you were in real trouble. But expanded transportation funded by capital investment has opened up more choices of who to deal with, and made buyers less and less tied to a single seller.
If you look at the matter more abstractly, the basic requirement of capitalism is that exchanges should take place through informed consent. Now, if you define the refusal or withdrawal of consent as an exercise of power over another person, then you are implying that the other person needs to be defended, and that forcing the unwilling person to grant "consent" and engage in exchanges is a defense of freedom. Well, apply that to a different domain: A woman in a sexual relationship with a man decides to withdraw from that relationship. By ceasing to consent to sexual relations with him, whether permanently or until his conduct changes, she is exercising power over him. So the only way to protect him against being in her power is to forcibly compel her to engage in sexual relations with him against her wishes. That's obviously a travesty of any meaningful notion of consent. It doesn't become any less a travesty if applied to economic transactions.
I have been thinking, in that discussion, of Francisco d'Anconia's speech about the choice being money, on the one hand, or whips and guns, on the other, and about people who don't see a difference between the two deserving to find out the hard way. |
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| Monday, June 29, 2009 at 10:38:55 mst
Comment ID: #28
Name: Patrick Reynolds
E-mail: preynol(at)twmi.rr.com
Wow, Brian. First you totally fabricate a fake position and then make the claim that it is mine. Then you state that I think like a white racist, even though I'm from Detroit, even though I'm a great believer in both individual rights and rational self-interest. All this just to avoid answering a simple question. All that just makes you out to be a coward, in my opinion. |
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| Monday, June 29, 2009 at 10:42:01 mst
Comment ID: #29
Name: BrianS
"Do you have in mind an alternative, objective basis for deciding how much pain and suffering is involved in an injury?"
I have not given much thought to the topic. Nor am I fully informed as to the current method used for determining just compensation for "pain and suffering". Thus I cannot say if an alternative method is even required.
What I do know is that some crimes can have devastating and debilitating effects upon its victim (rape for instance). And because the criminal is the individual responsible for this, it is he who bears the responsibility for making his victim whole again - to somehow return in some form what he has taken. That is a fundamental principle of justice.
--
"But you would want to have objective criteria for when the more grievous wrong had occurred: "The accused vaginally penetrated the victim," but not "The victim felt sexually degraded by the expression and attitude of the accused." The question is "Did they do it?" and not "How did it make the victim feel?" "
Indeed. But I think you are mixing issues here. The issue of "pain and suffering" is an issue of compensation after a given crime has already been identified. It is not the criteria for determining if a crime has occurred. This is true whether one is speaking of a criminal or civil case. |
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| Monday, June 29, 2009 at 10:59:44 mst
Comment ID: #30
Name: BrianS
Patrick apparently thinks adding ad homs to his already refuted unsupported claims will somehow magically make his original question valid. It isn't and the reason for this has already been identified. That Patrick fails to grasp this is one of the reasons his "opinion" is meaningless. |
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| Monday, June 29, 2009 at 11:09:13 mst
Comment ID: #31
Name: Greg Perkins
E-mail: greg(at)ecosmos.com
URL: http://dianahsieh.com/blog
Hi, Brian and William -- for further thoughts in this vein you might enjoy looking over an article I posted last year on this, along with its comments. It is over here:
Principled Punishment and the Death Penalty
http://www.dianahsieh.com/blog/2008/07/principled-punishment-and-de ...
Thanks,
Greg |
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| Monday, June 29, 2009 at 11:42:05 mst
Comment ID: #32
Name: William H Stoddard
E-mail: whswhs(at)mindspring.com
URL: http://whswhs.livejournal.com/profile
Brian,
Compensation is not actually a normal part of the legal response to a crime. Rather, it's part of a settlement for a tort. Of course, the same action may be both a crime (tried as "The People v. Fred Jones") and a tort (tried as "Mary Smith v. Fred Jones").
But my primary focus was not on actions that would be treated as crimes in the first place. Rather, it was on medical malpractice, which is almost always treated as a pure tort.
It's in torts where "the victim must be made whole" is an issue. Criminal law takes no account of this concern. |
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| Monday, June 29, 2009 at 11:50:45 mst
Comment ID: #33
Name: BrianS
Hi Greg
Would you say that the following paragraph is the pertinent one as related to the issue of "pain and suffering" upon which William is focused? Have I missed any (in either your original post or in the comments) which are also relevant to this particular issue?
"In civil reparations, we achieve commoditization of damages economically: most damages can be cleanly reduced to the monetary impact of the replacement value of items, the time value of lost use, the value of time away from work, the economic impact of reputation damage, the economic impact of a lost limb, etc. The troublesome aspects for restoration lie in physical pain, mutilation or death, psychological suffering, the loss of a unique object, and the like: these cannot be genuinely repaired with money or any object or action. Take pain and suffering, for example: at best, we might attempt to contrive a monetary valuation for psychological suffering by rough, subjective scaling of pay for an extraordinarily unpleasant job. But the trouble is most clear in the case of physical pain: trying to find the market value for the experience of letting someone, say, break one's arm is right out. This is quite unfortunate, because it means a victim of such damage cannot be made whole in principle. In such cases there is simply no justice to be had -- and this would be morally intolerable if it were not due to a metaphysically-given fact." |
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| Monday, June 29, 2009 at 12:08:19 mst
Comment ID: #34
Name: BrianS
"my primary focus was not on actions that would be treated as crimes in the first place."
I used the term "crime" generically - to cover any initiation of force/violation of rights. I wasn't trying to distinguish between tort and other types of cases. And my point was that "pain and suffering" identifies an area of compensation once it has been identified that such an initiation of force/violation of rights has been identified. To use the example provided - improper medical procedures which result in terrible physical or cognitive retardation. The question in such a case is: did the doctor do something wrong medically which caused this problem? "Pain and suffering" is simply not an issue in answering that question. However, if the doctor is found guilty, then it is an issue in answering the question of just compensation for his wrongful act.
That is why I said I thought you were mixing issues when you made the comparison to rape. |
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| Monday, June 29, 2009 at 12:08:24 mst
Comment ID: #35
Name: Greg Perkins
E-mail: greg(at)ecosmos.com
URL: http://dianahsieh.com/blog
Hi, Brian. I think another important aspect to keep in mind would be regarding the intentional infliction of such damage in contrast to the unintentional. A couple of paragraphs below that one, I talk about an important distinction between accommodating the inability to make someone whole on such a front because of a metaphysically-given fact (but for which not making them whole would be morally intolerable) vs. striving to deliver a commensurate punishment for doing harm on such a front, which faces no such barrier:
"To genuinely punish the intentional infliction of physical pain, we would need a uniform, scalable imposition of physical pain by some means (ideally one that could deliver a controlled degree and amount with no physical damage whatever, thus leaving all other elements of the crime to be matched as needed by a mix of incarceration, fines, and so on). While perhaps distasteful, this seems to be the only kind of unit which is actually commensurable with the sometimes substantial physical suffering intentionally inflicted in cases involving torture, beating, rape, and so on. In having such a unit of punishment available to match those (and of course only those) commensurate aspects of a crime, the justice system would no longer be driven by its current inability to actually punish, say, a heinous rape of a child, into seizing upon "some" (i.e., the only available) "greater punishment" than even life behind bars. Such a category leap into capital punishment for even a particularly horrible but 'merely' criminal offense is in fact unjust. Responses like that corrode the absolute, principled lines of the justice system to invite ever more arbitrary actions and corrosion -- precisely what must be avoided in a proper government's response to crime. (Note that, just as in capital punishment, such corporal punishment is impossible to repair, so the epistemological oversight must be likewise heightened to prevent systemic negligence.)" |
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| Monday, June 29, 2009 at 12:31:29 mst
Comment ID: #36
Name: BrianS
Greg,
While I disagree with the principle you put forth ("To genuinely punish...we would need...), I would say the principle itself is not relevant to William's point. I would say the issue of "pain and suffering" in this context is not about punishing the perpetrator, but returning the victim to health (as it were). |
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| Monday, June 29, 2009 at 12:55:37 mst
Comment ID: #37
Name: BrianS
In other words, retribution and recompense are distinct concepts, with only the former being synonymous with punishment. |
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| Monday, June 29, 2009 at 16:20:37 mst
Comment ID: #38
Name: BrianS
Greg
As to your first paragraph, you say "a victim of such damage cannot be made whole in principle. In such cases there is simply no justice to be had". Are you saying justice is not served unless it includes recompense/restitution? That if there is only retribution (ex, jail time), then there has been no justice? |
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| Monday, June 29, 2009 at 17:07:59 mst
Comment ID: #39
Name: Diana Hsieh
E-mail: diana(at)dianahsieh.com
URL: http://www.dianahsieh.com/blog
I agree that awarding damages for pain and suffering -- as opposed to measurable economic loss from being unable to work or incurring medical expenses, for example -- are a serious problem in our tort system. The problem is not that juries are irrational. Pain and suffering cannot be compensated by money in any direct way, and the attempt to do so asks juries to decide based on emotion. So, as we might expect, they are often unjust: they tend to award far more money than reasonable.
I suspect that damages for pain and suffering ought to be eliminated entirely. However, if not, then I suggest the following way of setting some limits. It sounds a bit ridiculous, but it's the only sensible solution I've heard so far. Here it is:
Basically, juries should award the plaintiff the amount of money required for him to spend a thoroughly enjoyable day for every day lost due to pain and suffering. So if the person suffered debilitating headaches for six months, pay to send him on a six month cruise -- or something of the sort. That would be a genuine kind of compensation for the harm done -- and the award would be far less than some arbitrary judgment of what that pain was "worth." In essence, pain should be compensated with its positive counterpart: pleasure. Of course, pleasure costs money, and money is what ought to be awarded. However, that monetary amount should be determined by reference to the compensating type of pleasure, not by the supposed disvalue of the pain experienced. |
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| Monday, June 29, 2009 at 17:34:33 mst
Comment ID: #40
Name: Greg Perkins
E-mail: greg(at)eCosmos.com
URL: http://dianahsieh.com/blog
Hi, Brian. I don't think I'm saying anything tricky: if one cannot be made whole due to the fundamentally irreparable nature of the harm that was done, then justice simply cannot be had in the sense of being made whole. And while we can try to make the impact less bad with measures like the one Diana discusses above, such efforts will nonetheless involve a perpetual struggle against the arbitrary because it means substituting something incommensurable.
Sorry I wasn't tracking your conversation closely enough -- I brought up the second paragraph because that dismal picture changes fundamentally when you turn from reparation to the potential need for punishment in the overall response to harm: there it is possible to deliver something commensurable. |
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| Monday, June 29, 2009 at 18:18:38 mst
Comment ID: #41
Name: BrianS
"juries should award the plaintiff the amount of money required for him to spend a thoroughly enjoyable day for every day lost due to pain and suffering"
While I don't believe it uses this specific criteria, is there anyone here in the legal profession who knows what, if any, criteria *are* currently used by courts? There seem to be SOME sort of limits currently, because right now an individual is not awarded billions of dollars because he slips and falls on the ice on his neighbor's untreated walkway.
--
"if one cannot be made whole due to the fundamentally irreparable nature of the harm that was done, then justice simply cannot be had in the sense of being made whole"
I have to disagree with this view. I do not accept that justice hinges on 'replacement' but rather compensation.
Furthermore, if one were to accept your premise, then there could *never* be justice because one can never replace the time and effort which has been stolen from you in both the act and its consequences. |
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| Monday, June 29, 2009 at 18:24:07 mst
Comment ID: #42
Name: BrianS
In regard to the first question I asked, in today's courts doesn't the victim have to provide some form of justification for any claim he makes as to damages? In other words, an individual can't just say: Pain and Suffering = One Billion Dollars, and leave it at that. He has to somehow justify whatever figure he provides? And conversely, the defense can argue against the claimed damages and/or provide alternative figures, right?
In other words, arguments have to be made for and against these claims, as with any of the other legal claims, no? |
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| Monday, June 29, 2009 at 21:06:37 mst
Comment ID: #43
Name: William H Stoddard
E-mail: whswhs(at)mindspring.com
URL: http://whswhs.livejournal.com/profile
Brian,
I agree with you that rape is not the same issue as medical malpractice. I cited it because you were using the word "crime" and I assumed you were intentionally shifting your focus to the different topic of criminal law, and because as a crime that carries a heavy emotional charge, it seemed a good lens through which to examine how subjective vs. objective law might apply in that different context. But that is not to deny that it IS a different context. As you say, we are taking not about the magnitude of an award of monetary damages for an injury, but the definition of what type of injury has taken place and how it is to be proven.
I do think, as I expect you do also, that the introduction of a purely subjective element into legal decisions in either case is harmful.
Criminal penalties are a very complex issue. I can identify at least six different ethical/political rationales for them:
*Pacification, or punishing criminals to ensure that private citizens will not resort to mob violence against them
*Retribution, or inflicting a loss of rights on criminals commensurate with the loss of rights they have inflicted on their victims
*Deterrence, or making people reluctant to commit crimes for fear of the penalties they will suffer
*Incapacitation, or making criminals unable to commit further crimes because they're dead, imprisoned, or exiled
*Restitution, or making the victims of crimes whole
*Rehabilitation, or changing the criminal's moral character so that he will no longer want to commit crimes
In my experience, conservative legal theorists (and most scholars who attempt to analyze crime economically) favor deterrence as a rationale, and liberals favor restitution; but the common citizenry favor retribution, or "you have to pay for what you did." I am inclined to think that on this point the common citizenry's view is sounder, though some of the others can be seen as desirable secondary effects. On the other hand, if we are dealing with a crime whose victim *can* be made whole, it may be appropriate for retribution to take the specific form of making restitution, or to include it.
Civil torts such as medical malpractice aren't so complicated. But I'm concerned that "pain and suffering" awards may be impossible to make objective, at least unless we have radical advances in neural science. And while such advances might make interesting science fiction, they aren't present fact and can't be a basis for present law. |
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| Monday, June 29, 2009 at 22:10:51 mst
Comment ID: #44
Name: BrianS
I do not think it is necessarily any more "impossible" to make "objective" restitution for something like pain and suffering than it is impossible to make objective retribution for something like rape. Does one need "radical advances in neural science" to determine a commensurate punishment for this form of traumatic assault? |
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| Monday, June 29, 2009 at 23:06:19 mst
Comment ID: #45
Name: William H Stoddard
E-mail: whswhs(at)mindspring.com
URL: http://whswhs.livejournal.com/profile
Brian,
I suggest that the following may make sense:
The precision of the commensurateness is not the same in the two cases. In one case, we're basically talking about "should we have the death penalty, or imprisonment, or a fine?" In the other, we're talking about deciding on one dollar amount rather than another.
When you are dealing with a matter where there is no criminal intent, punishment as such . . . retribution . . . is not an appropriate measure. And the purpose of restitution requires a more careful fitting of the magnitude of the damages paid to the magnitude of the injury to attain justice. For one thing, the person who has committed an actionable injury to another person in a civil case has not placed themselves outside the moral bounds of human society; they have not shown disrepect for rights in general such as would result in their forfeiting their own claim to rights in general. They have just made a mistake. It's only right that they should pay the price of their own mistake, rather than having it fall on someone else, but care is needed in determining what that price ought rightly to be. |
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| Monday, June 29, 2009 at 23:55:45 mst
Comment ID: #46
Name: BrianS
William
I think you may have misunderstood what I was saying. I wasn't indicating that "the person who has committed an actionable injury to another person in a civil case" should have retribution visited upon him.
My point was that you claim it is impossible to determine the commensurate ("objective") restitution for the non-criminal initiation of force against someone, especially in instances where 'measuring' the trauma is difficult (ie pain and suffering). What I was trying to indicate is that it is no more impossible than it is to determine the commensurate ("objective") retribution for the criminal initiation of force against someone in instances where 'measuring' the the trauma is difficult (ie rape). In both instances "care is needed in determining what price ought rightly to be" 'paid' as it were. Such proportionality is a requirement of justice.
In other words, you are saying there is no objective way to put a particular dollar amount on the trauma inflicted in the non-criminal case. Whereas you seem to be saying there is apparently an objective way to put either a specific dollar, time, or life amount on the trauma inflicted in the criminal case. I do not see how objectivity is impossible in one instance but possible in the other.
What principle are you referencing when you indicate it is possible to objectively determine a specific dollar, specific time, or entire life 'price' in retribution for rape? And what makes it supposedly impossible to apply this same principle to objectively determine a specific dollar price alone in recompense for the non-criminal violation? |
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| Tuesday, June 30, 2009 at 10:28:20 mst
Comment ID: #47
Name: William H Stoddard
E-mail: whswhs(at)mindspring.com
URL: http://whswhs.livejournal.com/profile
Brian,
I must point out again that I do not have a fully thought out position on this. I brought up the topic because I thought I might learn something from the discussion here.
One thing that occurs to me is that the measurement in setting criminal penalties takes place in advance, establishing a penalty for a category of crimes, based on the features of the category. In civil cases, the damages are determined for the individual case, based on the features of the individual tort or breach of contract. So the individual emotional appeal of the plaintiff has a bigger impact. Criminal law is not wholly immune to this sort of influence, but it's not as great. |
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| Tuesday, June 30, 2009 at 15:56:44 mst
Comment ID: #48
Name: BrianS
William
I never claimed you had a fully thought out position. You asserted something was impossible. I simply asked you what premises you were basing your conclusion of impossibility on - especially in light of your apparent conclusion that it IS possible to make such determinations objectively in other such instances.
"the measurement in setting criminal penalties takes place in advance, establishing a penalty for a category of crimes, based on the features of the category. In civil cases, the damages are determined for the individual case, based on the features of the individual tort or breach of contract."
This goes back to a question I asked in a separate post. You are indicating that there are precedents which guide retribution but no such precedents which guide restitution. But is that actually true? In current law, a man claim a billion dollars because a dog bit him and caused him to lose a day of work and an additional day of pain and suffering? If not, why?
In other words, everyone seems to be accepting as fact that there are not current restrictions, proscriptions, precedents, etc for determining commensurate restitution. But is that indeed the fact? Before people start making pronouncements, I think it is important to know the answer to this question (and anecdotes of high awards do not serve as an answer, because they do not tell if they are the exception, the rule, etc). |
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| Tuesday, June 30, 2009 at 16:08:57 mst
Comment ID: #49
Name: William H Stoddard
E-mail: whswhs(at)mindspring.com
URL: http://whswhs.livejournal.com/profile
Brian,
You write, "In other words, everyone seems to be accepting as fact that there are not current restrictions, proscriptions, precedents, etc for determining commensurate restitution. But is that indeed the fact? Before people start making pronouncements, I think it is important to know the answer to this question (and anecdotes of high awards do not serve as an answer, because they do not tell if they are the exception, the rule, etc)."
I'll agree that that's a sound point. But it's one that I am unable to answer. If anyone can comment on it, I would be interested to see whatever information they can provide. |
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| Tuesday, June 30, 2009 at 17:56:37 mst
Comment ID: #50
Name: BrianS
William
Fair enough :) |
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