| Wednesday, October 15, 2008 |
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Force That Isn't Force
By Paul Hsieh @ 12:23 AM   
UCLA law professor Eugene Volokh has written an interesting post about a recent survey which purports to show that, "Approximately 18% of women aged 18-24 report having experienced forced sexual intercourse at least once in their lives".
He notes that the types of "force" reported include "Told Relationship Would End" and "Pressured by Words/Actions Without Threats". Of the women who said they were subject to force, 12% said they experienced the first and 61% said they experienced the second. (Respondents could select more than one category of force in the survey.)
As Professor Volokh notes:This is just ridiculous. It's true that the word "force" has many possible meanings: Some people, for instance, feel they're "forced" "against [their] will" to work in certain jobs -- or are doing those jobs not "of their own free will" -- because that's the only way they can enjoy the standard of living they want. But these are radically different kinds of force from being forced to do something by physical force, or threat of physical injury. And mixing the two yields results that are useless at best and misleading and dangerous at worst. The survey did note that some women reported being subjected to genuine force, such as "Physically Hurt Or Injured" or "Threatened With Physical Hurt". And of course, these sort of forced sexual intercourse should be condemned and/or prosecuted as criminal violation of individual rights.
But to lump into the same conceptual category of "Force" both "Pressured by Words/Actions Without Threats" and "Physically Hurt Or Injured" is a prime example of what Ayn Rand called the fallacy of package dealing:"Package-dealing" is the fallacy of failing to discriminate crucial differences. It consists of treating together, as parts of a single conceptual whole or "package," elements which differ essentially in nature, truth-status, importance or value. This sort of intellectual package dealing destroys actual concepts (in this case of "force") in people's minds and makes rational analysis of the ideas impossible.
Fortunately, there are still people like Professor Volokh who recognize this as a dangerous fallacy and are willing to point it out.Labels: Epistemology, Love/Sex
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| Wednesday, July 09, 2008 |
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Principled Punishment and the Death Penalty
By Greg Perkins @ 12:05 AM
There are two natural criteria to attend to if we are to advocate the death penalty in our justice system: we must establish that we are objective in identifying, say, heinous murderers -- and we must establish that it is morally permissible if not mandatory to kill them when so identified.
I want to focus here on the moral question: should we kill the heinous murderer when he is so identified? (I appreciate that the epistemological troubles of our justice system are substantial and likely rule out as negligent the imposition of any punishment so decisive and final as the death penalty. For the moment, though, let's set aside today's epistemological issues and their general reform; please assume objective convictions for this discussion of punishment.)
In addressing the morality of the death penalty, we may be tempted to simply appeal to retributive justice and say that one should lose a life for taking a life, discussion over. But while Objectivists support a retributivist justice system, this principle is not by itself decisive regarding the specific punishment of the death penalty: notice we can't and don't attempt to balance crime and punishment literally, with an eye for an actual eye, a theft for a theft, and so on. (Consider the simple example of an arsonist burning down your house. It is not possible to likewise burn down his if he is a renter.) No, we are satisfied -- and necessarily so -- with the justice of something more indirect. We use proxies like imprisonment and fines, scaled and otherwise adjusted to achieve the effect we seek in matching punishment to endless variety in crime. So any answer to the moral question around the death penalty has to accommodate this and explain just what would make killing a heinous murderer necessary in lieu of, say, locking him up for life.
I haven't yet seen any fundamental explanation of what would require "the ultimate punishment" in the face of this element of flexibility in our response to crime. Here I'll propose a way of thinking about punishment that answers that challenge, and more. (Because I am not a lawyer and could easily be confused about our legal system, I especially encourage legally-savvy readers to jump in and correct or clarify as needed!)
Nested Classes of Offense
First, note how Objectivism carefully distinguishes immorality in general from criminality, a particular species of immorality. Shunning productiveness is your own problem, until you start stealing from others to feed yourself. The key distinguishing feature here is the initiation of physical force (including indirect forms, like fraud). It is one thing to choose not to pursue life yourself -- i.e., to choose not to be moral -- but it is another to also initiate physical force and prevent someone else from doing so, suppressing their moral agency. This is why the Objectivist politics identifies the proper scope of government action (and any legitimate use of physical force) as a response only to violations of rights, leaving all other matters to force-free resolution via, say, personal disassociation. It is specifically the initiation of physical force which necessitates a response involving physical force.
I am going to argue that just as rights violations are essentially different than other cases of immorality and thus require an essentially different kind of response, that there is an essential distinction between criminal offenses and civil offenses that requires an essentially different kind of response, and that there is an essential distinction between capital offenses and other kinds of crime that requires an essentially different kind of response. In every case, the nature of the offense is different in kind than offenses from the other classes, and in all cases the nature of any response, to be just, must at least match the offense in kind. That is: while injustice is possible if crime and punishment are not well matched, justice is impossible if they are not at least from fundamentally commensurable classes.
Consider then the following classes of offense and how they relate to each other, beginning with mere immorality and progressing through nested subclasses of ever-stronger rights violations (yes, as I try to frame these categories in terms of essentials, I may be shifting some boundaries as currently conceived and implemented in our legal system) :
- Immorality: when someone operates counter to the fundamental principles of sustaining human life (is dishonest, irrational, lacks integrity, etc.). In this case, others are free to respond with a range of peaceful forms of disassociation (by, say, avoiding someone, or perhaps even advertising that choice and their reasons for it). Lameness calls for loneliness. Note how offense and response must be at least fundamentally commensurate: where there is no physical force being initiated, no physical force may be used in response (otherwise that would itself be an injustice to take legal note of -- an initiation of force, criminality in response to mere immorality).
- Civil offenses: when someone isn't just immoral, but more specifically bears responsibility for damaging an innocent's person or property (say, with an irrational contract dispute, or an at-fault driving collision). In this case, our justice system compels the offender to repair the damage they are responsible for. Damage calls for restoration. Note how again offense and response must be at least fundamentally commensurate: responding to a civil misdeed with only disassociation of any stripe would be unjust -- and, as indicated above, responding to mere immorality with compulsory "reparations" of any kind would likewise be unjust.
- Criminal offenses: when someone isn't just responsible for harming an innocent's person or property, but more specifically intentionally curtails an innocent's moral agency (say, with armed robbery, fraud, burglary). In this case, our justice system in turn curtails the offender's moral agency (his liberty via imprisonment, his property via fines and confiscation). Curtailment calls for curtailment. Note yet again how offense and response must be at least fundamentally commensurate: responding to a criminal misdeed with only compulsory reparations would be unjust -- and responding to mere civil offenses with imprisonment of any length would likewise be unjust.
- Capital offenses: when someone chooses not just to curtail an innocent's pursuit of life, but more specifically to eliminate an innocent's life (say, with premeditated murder). Here then is the key distinction to observe: murder isn't merely subverting someone's means to continued existence, curtailing their pursuit of life -- it is purposefully eliminating their life itself, ending their existence altogether. There is a difference in kind between the implicit and the explicit, the means and their end, and these cannot be treated as merely different in degree. Annihilation calls for annihilation. As with the other classes above, offense and response must be at least fundamentally commensurate: responding to a heinous murder with only imprisonment, no matter the length, would be unjust -- and responding to a mere criminal offense with any form of the death penalty would likewise be unjust.
I think the above clarifies the objective basis for capital punishment, cementing the moral necessity of its use when the proper conditions have been met (and please note again that such conditions would include an epistemologically sound conviction).
Because the above organization encompasses and relates the entire range of misdeeds and response along principled lines, we have an opportunity to see if it might help explain, or even suggest adjustments to, other aspects of our justice system.
Decomposition of Crime and Composition of Response
Focus now on how the above classes are nested, with each being a narrowing of the preceding: Not every moral breach is a civil offense (often one is only harming oneself, or only harming others in non-rights-violating ways) -- while every civil offense is necessarily a moral breach (that is the source of the responsibility for a rights-violating harm). And not every civil offense is a criminal offense (being responsible for harm and intending to do harm are not the same thing) -- while every criminal offense is a civil offense (intending to do harm certainly makes you responsible for it). And so on through all of the classes.
This indicates that responses should not be limited to only what is indicated by the narrowest category that applies, but must also include any relevant responses from each of the broader enclosing classes as well -- because they all apply. So murderers should expect time in prison (for the criminal aspects), being forced to make any possible reparations (for the civil aspects), and certainly infamy and social ostracism (for the moral aspects), on their way to annihilation (for the capital aspect). And a burglar should expect fines and jail time (for the criminal aspects), to restore his victim (for the civil aspects), and to suffer social ostracism (for the moral aspects). Any given crime must be treated on all applicable levels, by decomposing its aspects into relevant charges, and addressing each to compose the full response.
Our legal system's support for separate treatment of civil and criminal offenses is a mechanism for satisfying this need. But it is also interesting to see how the cascade of offenses above helps us see how our approach is not the only way to satisfy this need: a different court system could, say, use a single trial, decomposing the offense into its various charges at all levels for appropriate assessment, and then handing down a single, integrated response. The cascade of offenses also clarifies how holding separate civil and criminal trials needn't introduce the injustice of "double jeopardy": the charges and potential punishments for each of these classes are different in kind -- one being about responsibility for damages, the other about criminal curtailment of moral agency or worse. So whether or not both of these aspects of a crime are assessed during the same proceeding is immaterial, a matter of convenience or tradition.
One danger of our current two-trial approach, though, lies in blurring the distinction I've drawn between civil and criminal matters. Their division of judicial labor can become unprincipled and uncoordinated: consider that we have criminal courts handing down orders for reparations, and civil courts handing down orders for "punitive damages." This blurring of responsibilities seems to flirt with the injustice of double jeopardy. Worse still, in the case of civil courts drifting into handing down punishments, the higher standard of judgment demanded in criminal proceedings is being evaded.
Graduated Standards of Judgment
Regarding standards of judgment, consider how this nested structure highlights qualitative leaps in the gravity and irreparability of offense and response. Combined with the fact of limited time and resources, this suggests the need for qualitative leaps in standards of judgment and extent of oversight. Negligence in the justice system itself cannot ever be acceptable (that would render it literally an injustice system) : the more grave and/or irreparable the crime, the more diligence we must bring to bear to ensure correctness in conviction and punishment with a similarly grave and/or irreparable response. Our present system addresses this need as follows:
- In civil judgments we must show responsibility for damages. Our system's standard for demonstrating such liability is that of a "preponderance of the evidence", which seems to roughly correspond to what Objectivists technically classify as "probable" [OPAR 178].
- In criminal judgments, we must show intent to commit a rights violation (i.e., the initiation of physical force, even indirectly like with fraud or potentially with assault). Our system's more-rigorous standard for demonstrating such guilt is that of "beyond a reasonable doubt", which seems to roughly correspond to what Objectivists technically classify as "certain" [ibid].
- In capital judgments, we must show intent to cause a rights-violating death. This requires the standard of criminal judgments, with the additional requirement of appeals and extended scrutiny and oversight to further insure against any systemic negligence.
Carefully observing the proper standard for each aspect of a crime is required, lest we court the kind of systemic negligence mentioned above, with civil courts handing down "punitive damages."
Commodity Units of Punishment
Because of the impossibility of literally matching offense and response, as well as because of limits in time and resources, we need to institute uniform responses to crime that make it possible to "dial in" a just match to any given offense.
The above classes of offense are based in philosophical principle and fixed, while within each class there is endless variation in misdeed. Because the misdeeds in each class are fundamentally commensurate, though, we have the possibility of commoditizing our responses, making them regular and even scalable to match a great variety of fundamentally similar offenses. The use of such units also allows us to objectively express the relative badness of one offense vs. another, making for sentencing open to audit, against guidelines that are open to review, clarification, and correction.
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.
In criminal punishment, our system commoditizes moral agency curtailment via limitations on liberty (incarceration) and takings of property (fines or confiscations). Each component can be scaled and combined with the other in practically endless ways to punish much of what makes up criminal activity. Even psychological suffering can be captured by such losses. But just as we cannot repair the infliction of physical pain in civil cases with any action or object, we cannot genuinely punish the infliction of physical pain via incarceration or fines. These are simply not commensurable. And while there was a metaphysically-given fact standing in the way of civil reparations for such damage, there is no such fact standing in the way of criminal punishments for inflicting such damage.
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.)
In capital punishment, our system achieves commoditization by ostensibly employing a small, uniform set of (relatively) quick and painless procedures for execution. (Note that there is no need for a scalable unit of capital punishment because existence vs. nonexistence is binary.) And on the account here, it is a good trend to seek to standardize on the most quick and painless method(s) of execution -- including bringing as little gore and psychological damage to the witnesses and executioners as is possible. While methods of execution that are purposely torturous and gory in varying ways and degrees have been used throughout history, this would again be a case of needlessly mixing in aspects of punishment which should be assessed and treated independently, in the criminal supercategory. For example, a heinous torture-murder should be decomposed into the judgment and response to the torture, and the judgment and response to the killing, each by the applicable standards -- and this would result in an overall punishment that is properly distinguished from the punishment for a 'mere' murder.
Toward Principled Punishment
I have argued here that we should seek principled lines in identifying and classifying misdeeds, to systemically encourage justice and discourage injustice in our potential responses. And while perhaps distasteful, this means that we should ensure that our justice system has available all of the needed kinds of units of punishment, as in the cases of corporal and capital punishment. This is not only to allow the possibility of genuine justice in punishment, but also so frustration at the systemic prevention of justice caused by any such gaps will not drive people to seek "justice" by violating the principled lines we must observe to maintain the objectivity of our system. That kind of corrosion in particular has to be avoided, lest we spiral ever further into the arbitrariness which has characterized so much of mankind's approach to punishment.Labels: Epistemology, Ethics, Law, Philosophy
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| Thursday, June 26, 2008 |
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Don’t Talk to the Police
By Greg Perkins @ 1:00 AM
Here is a fascinating 30-minute lecture by Regent University law professor James Duane about the 5th amendment. He is speaking to law students, explaining why he uniformly advises his clients (and everyone) that they should they never, ever, under any circumstances, talk with the police -- guilty or innocent, a suspect or not, even if they are smarter than Aristotle and Newton combined, articulate as all get out, an expert in the law, and pure as the wind-driven snow. Never.
He explains how talking to the police can't ever help, and will in all likelihood hurt even innocents. This last is the part that really stood out: even the most innocuous statements by the most innocent of people could put them in jeopardy -- it depends on context they don't control. An officer misremembering an answer could bring a conviction; so could misremembering the question. Taping interviews is no guarantee, either: even some fuzziness in the contextual information that floated by before the interview could be disasterous!
His examples are striking. "I don't know who killed Joe. Of course I didn't shoot him: I don't even own a gun -- heck, I haven't ever touched a gun in my life!" Suppose that's all perfectly true. What could possibly be incriminating about sharing that? Well, just consider an officer on the stand responding with "I never mentioned anything about a gun." Toast.
But wait, there's more! It isn't just you or officers who might make a mistake that hangs you, but anybody with whom the police might come in contact. (See the video. Oh, and here is the second half with the other fellow.)
Quite an argument for improved epistemological hygiene in our legal system -- and for very careful engagement with it. While exercising 5th amendment rights is widely associated with guilt, Duane explains that it wasn't designed for that -- it is for protecting innocent people in epistemologically perilous circumstances.
[HT: Jason]Labels: Epistemology, Law
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| Friday, June 13, 2008 |
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Death by Superstition
By Diana Hsieh @ 3:58 PM
As today is the supposedly unlucky Friday the 13th, it's a fitting day for a reminder of just how deadly magical thinking can be. Via the New York Times comes a chilling example of albinos in Tanzania hunted down and slaughtered for their supposedly magical properties:
DAR ES SALAAM, Tanzania -- Samuel Mluge steps outside his office and scans the sidewalk. His pale blue eyes dart back and forth, back and forth, trying to focus. The sun used to be his main enemy, but now he has others. Mr. Mluge is an albino, and in Tanzania now there is a price for his pinkish skin. "I feel like I am being hunted," he said.
Discrimination against albinos is a serious problem throughout sub-Saharan Africa, but recently in Tanzania it has taken a wicked twist: at least 19 albinos, including children, have been killed and mutilated in the past year, victims of what Tanzanian officials say is a growing criminal trade in albino body parts.
Many people in Tanzania -- and across Africa, for that matter -- believe albinos have magical powers. They stand out, often the lone white face in a black crowd, a result of a genetic condition that impairs normal skin pigmentation and strikes about 1 in 3,000 people here. Tanzanian officials say witch doctors are now marketing albino skin, bones and hair as ingredients in potions that are promised to make people rich.
... As if being born with a serious genetic disorder wasn't enough of a burden in life, these people face the prospect of a gruesome death thanks to primitive superstition -- in a scientific age when men have walked on the moon. It's almost unfathomable.Labels: Culture, Epistemology
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| Friday, May 30, 2008 |
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Check Your Premises
By Diana Hsieh @ 12:16 AM
In a lengthy post entitled Dissecting Epistemology, Monica challenges the objectivity of many of our supposedly scientific beliefs about the world. She writes,
Apart from the obvious idea that much of science is ideologically driven, many scientists - irrespective of any underlying, driving ideology - have deliberately cooked data and managed to get it published in scientific journals for no other reason than the fact that they are second-handed and they want to be right. And of course, scientific history is also rife with examples of new ideas taking time to become established in the mainstream due to a lack of objectivity in the scientific community. Just take that "quacky" idea that bacteria might cause ulcers!! We scientists "know" that bacteria can't inhabit stomach acid!? Right?? Most commonly of all, in my opinion, is not intellectual dishonesty but the fact that shoddy science is done all the time and people just fail to fully and objectively evaluate that research. Sometimes, those claims then end up becoming part of the "objective scientific consensus" that persists for 50 years. To say, "I've not studied the issue, so I just don't know," is often the most objective, the most self-aware, and the most honest reply possible to an inquiry. Sometimes, it's also the hardest reply.
In my judgment, even though I'm an ardent advocate of evolutionary theory, Ayn Rand exhibited exactly that kind of objectivity in her statement on evolution in her essay "The Missing Link" in Philosophy: Who Needs It. She wrote, "I am not a student of the theory of evolution and, therefore, I am neither its supporter nor its opponent." I've seen that statement harshly criticized in some corners of the internet, as if Ayn Rand were obliged to swallow the standard scientific account of man's origins -- without any study of the facts of the matter. That's completely wrong: it's a demand to accept a theory on faith, just because it's endorsed by a sufficiently large number of supposed authorities. Ayn Rand refused to be that kind of epistemic second-hander. Instead, she formed her own judgments based on her actual knowledge. As a result of that method, she effectively challenged two millennia of altruism in ethics. That's the kind of insight that scrupulous objectivity -- not to mention a large helping genius -- makes possible.Labels: Epistemology, Science
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