| Monday, November 10, 2008 |
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Clever Counterterrorism
By Paul Hsieh @ 12:19 AM   
The Washington Post had a terrific story in October of how the British used a laundromat as a counterterrorist tool against the Irish Republican Army. Here's an excerpt:...Having lost many troops and civilians to bombings, the Brits decided they needed to determine who was making the bombs and where they were being manufactured.
One bright fellow recommended they operate a laundry and when asked "what the hell he was talking about," he explained the plan and it was incorporated -- to much success.
The plan was simple: Build a laundry and staff it with locals and a few of their own. The laundry would then send out "color coded" special discount tickets, to the effect of "get two loads for the price of one," etc. The color coding was matched to specific streets and thus when someone brought in their laundry, it was easy to determine the general location from which a city map was coded.
While the laundry was indeed being washed, pressed and dry cleaned, it had one additional cycle -- every garment, sheet, glove, pair of pants, was first sent through an analyzer, located in the basement, that checked for bomb-making residue. The analyzer was disguised as just another piece of the laundry equipment; good OPSEC [operational security].
Within a few weeks, multiple positives had shown up, indicating the ingredients of bomb residue, and intelligence had determined which areas of the city were involved. To narrow their target list, [the laundry] simply sent out more specific coupons [numbered] to all houses in the area, and before long they had good addresses.
After confirming addresses, authorities with the SAS teams swooped down on the multiple homes and arrested multiple personnel and confiscated numerous assembled bombs, weapons and ingredients. During the entire operation, no one was injured or killed. (Via Schneier.)Labels: Law
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| Thursday, October 09, 2008 |
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Misclassifying Terrorists
By Paul Hsieh @ 11:18 AM
The October 7, 2008 Washington Post reports that:The Maryland State Police classified 53 nonviolent activists as terrorists and entered their names and personal information into state and federal databases that track terrorism suspects... The article also notes:Both [former state Police Superintendent Thomas] Hutchins and [current Police Superintendent Terrence] Sheridan said the activists' names were entered into the state police database as terrorists partly because the software offered limited options for classifying entries. I guess that the old 1940's excuse of "I was just following orders!" has now apparently now been upgraded into "The software left me with no other choices!"
On a more serious note, this sort of misclassification is wrong in two ways.
First, it's obviously unjust to any peaceful protestors who are exercising their legitimate rights to free speech and to oppose government policies. Second, it clutters up the terrorist database with non-terrorist names, thus hampering law enforcment operations against genuinely violent terrorists and criminals.
Of course, violent protestors should be dealt by the police with an appropriately forceful response, in order to protect individual rights. But the conflation of "protestor = terrorist" in the minds of the police is a dangerous one.
Unless this mindset is challenged, the semi-joking attitude expressed today on this t-shirt from the Denver Police Union may become the norm in tomorrow's real-life police state:
(Via IPList.)Labels: Law
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| Monday, September 22, 2008 |
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Antitrust: Punishing Success
By Diana Hsieh @ 5:12 PM
Jason Crawford published an excellent letter to the editor in the Wall Street Journal on the potential for an antitrust suit against Google:
Microsoft's general counsel, Brad Smith, says that "if search is the gateway to the Internet . . . this deal [with Yahoo] will put Google in position to own that gateway and the information that flows through it" ("Top Lawyer Is Selected as U.S. Mulls Google Suit," Marketplace, Sept. 9). Why shouldn't they own it? They built it. Google is the most popular search engine because of the relevance and speed of its results; it is the dominant advertising platform because ads are more effective there than anywhere else. Google deserves its leading position and the rewards that go with it.
This case, like every other major antitrust case from Standard Oil to Microsoft, aims to punish a winning company for the crime of winning. This is a grave injustice to Google and will only harm the industry in the long run. Why place the ideal of "competition" ahead of the economic productivity that competition is supposed to promote?
It would be far more just, and better for the economy, to simply let the winners win.
Jason Crawford
Seattle Great letter, Jason!Labels: Activism, Business, Law
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| Thursday, September 18, 2008 |
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Environmentalists Run Amok In the UK
By Paul Hsieh @ 1:23 AM
Two recent stories from the UK should serve as a warning for Americans. Unless we fight the battle against bad environmentalist ideas now, we'll be facing similar problems in the US in just a few years.
The first story describes a proposed law in (part of) the UK that would require drivers to turn off their engines if they are stuck in traffic: "Drivers could face £20 fine for leaving engines running in traffic jams".
The goal, of course, is to reduce pollution and carbon emissions, and it would be humorous if it were not so wrong-headed.
The second more alarming story comes via Amit Ghate. A jury in the UK has acquitted a group of Greenpeace vandals who inflicted thousands of dollars worth of damage against a coal-fuled power plant:Jury decides that threat of global warming justifies breaking the law
...Jurors accepted defence arguments that the six had a "lawful excuse" to damage property at Kingsnorth power station in Kent to prevent even greater damage caused by climate change. The defence of "lawful excuse" under the Criminal Damage Act 1971 allows damage to be caused to property to prevent even greater damage -- such as breaking down the door of a burning house to tackle a fire. Of course, once one accepts the principle that it's ok to commit violence against property in order to stop global warming, then the next logical step will be the (currently fictional) argument that, "the best way to reduce carbon emissions is to kill as many rich Westerners as possible".
How will it be before long before that far-fetched fictional example turns into tomorrow's real-life killing spree?
This is all the more reason to support the "EPA Ruination" project by John Lewis and Paul Saunders. Feel free to forward their "Letter to All Americans" to any appropriate venues and/or use their talking points in your own letters, conversations, etc. Their letter also includes links on how to give feedback to the EPA.
Remember: "Outlawing carbon means outlawing civilization."
This cartoon from Wondermark pretty much says it all:
 Labels: Environmentalism, Law
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| Friday, September 05, 2008 |
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The Attack on the Right of Petition is also an Attack on Property Rights
By Gina Liggett @ 1:00 AM
Lobbying is often scorned, and commonly considered an unethical practice of influencing lawmakers. Even though there are thousands of lobbyists working at all levels of government for every conceivable interest group, it is corporations that often receive the most wrath.
For example, Barack Obama brags: "I am in this race to tell the corporate lobbyists that their days of setting the agenda in Washington are over. I have done more than any other candidate in this race to take on lobbyists - and won."John McCain has been criticized for being anti-lobby while at the same time courting the advice of several corporate lobbyists; but he's quick to wash his hands of this hypocrisy, saying, "At no time have I ever done anything that would betray the public trust."
But petitioning the government either as an interest group, private citizen, or corporation, is a fundamental right explicitly enumerated in the petition clause of the First Amendment to the U.S. Constitution: "Congress shall make no law.... abridging...the right of the people...to petition the Government for a redress of grievances."
And according to the First Amendment Center at Vanderbilt University, lobbying is considered a form of petition (with no guarantee that the lobbyist will get what he wants): "Lobbyists try to persuade government officials either to support or oppose various policy issues. Therefore, lobbying can be considered a form of petitioning the government for redress of grievances, subject to protection under the First Amendment's petition clause. Although there has not been a great deal of judicial analysis on First Amendment protections afforded to lobbying, the courts have carved out several parameters. First, the petition clause does not grant a lobbyist the absolute right to speak to a government official nor does it grant a lobbyist the right to a hearing based on his or her grievances. In addition, the clause does not create an obligation for a government official to take action in response to a grievance. Finally, any statement made while a lobbyist petitions a government official does not receive greater protection than any other expression protected by the First Amendment." So, with the political bias against corporate lobbying, how are companies supposed to survive when politicians attempt to make laws and regulations that threaten their businesses? Are they just supposed to shut up and accept any capricious violation of their property rights?!
Because there is no separation of state and economics in America---resulting in the mixed capitalist-socialist economy we have today---it is imperative that the right to petition government be upheld. It may be the only way, albeit indirect, to fight for property rights.
While some interest groups and companies improperly lobby for government handouts and preferences, and play the infamous "pork-barrel" game, this is not because the right of petition is wrong, but because the entanglement of government and the economy is wrong.
The essential point is this: politicians' flagrant disregard of the First Amendment right to petition is symptomatic of not only their power lust, but their arrogant disdain for the concept of individual rights, property rights and government's proper role as servant to the people.
And the "people" includes the companies which create the wealth and the necessities of our daily life. If politicians legislate them out of existence directly by regulations or indirectly by limiting their right to petition, then government will truly have total power over the economy--and you and me.Labels: Ethics, Law, Politics
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| Friday, August 29, 2008 |
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Protect People and Livestock, Not Feral Dogs
By Diana Hsieh @ 12:01 AM
On Wednesday, I received the following e-mail from Mary Fries, the owner of Isle Farms with her husband Rod. I own a cowshare and a half with them, so that I can drink a gallon and a half of their clean, safe, and delicious raw milk each week.
I decided to post it here, with permission, because it highlights the very real evil of blind sympathy for wild animals fostered by animal rights activists. Plus, given how much I love my raw milk, I'd be delighted if others would write a supportive e-mail to the County Commissioner.
Here's the letter from Mary:
Dear Shareholders,
I realized last night that this issue pertains as much to you as it does me, so I wanted to include you and ask for your help.
Yesterday, I was out on the land, checking in on a new calf that was born this weekend. As I was standing in front of the herd, they all started running-straight towards me!-and it was all I could do to spin around one, step, spin again, and end up leaning up again the barb-wired fence. Right behind the cows, at full run, were a pack of wild dogs. One was a pit bull-who headed straight for me. I grabbed an old fence post that was by my feet, and that detoured him from coming closer. He and the other dogs left without further prodding.
This is a good summary of what the news was talking about a few weeks ago, about the dogs here in Ellicott. We personally have been fighting this problem from the get-go. The law regarding wild dogs is this -- you can only shoot them if they are in the midst of attacking your livestock. Many times Rod has gone out there with the shotgun, while the dogs were in the midst of chasing the cows, but by the time he gets in range, the dogs see him coming, and run off.
I phoned Amy Lathen (County Commissioner) almost immediately yesterday. She headed up the plan to finally get these dogs under control, after years of complaints from residents. When I explained what happened, she said she had a contract ready to go with the USDA for the trapping, but they were dragging their feet. Apparently, after the news ran the segment, they got so many emails from not just Colorado Springs residents, but throughout the country, and all the way from INDIA!!, with people berating their efforts as inhumane.
I'm all for animals, but the people emailing do not have any idea of what the farmers and ranchers face when these things happen. For our farm, and many others in the area, this is part of our livelihood. These dogs are WILD, and the situations that are arising, are downright dangerous for both livestock and humans. And humane -- what about the cows? They stress from being chased, and having to fight them off!
I'm asking that all of you take a second and email Amy, let her know that you are behind her effort to help our community keep ourselves and our livestock safe. You can say anything -- a short "we are behind you in your efforts" to "I have ownership in livestock in Ellicott, and support you in helping keep them safe". Whatever you can do, I think she was pretty beat up over this whole thing.
Although -- her final words to me were "That's it. We are going to do this." Here is her email -- AmyLathen@elpasoco.com
Huge thanks to you all, from me AND the cows :o)
One more thing -- after the cows stampeded past me yesterday, they ran in a U shape, and I was trying to figure out why they didn't run VERY far away. Then I happened to notice, surrounded by 18 pairs of hooves, a little head popping up out of the grass -- Baby Dolla :o) They weren't going anywhere with that baby unprotected... what good cows :o)
Mary Here's the letter that I wrote to the County Commissioner:
Dear Ms Lathen,
I'm a resident of Douglas County, but I have livestock in Ellicott. (I have shares in Mary and Rod Fries' herd.)
I'm very concerned to hear of the wild dogs that have been periodically terrorizing their farm, putting people and livestock at risk. So I wish to express my wholehearted support for the county doing whatever is necessary to neutralize the threat posed by these wild dogs.
Human lives and property should not be at the mercy of dangerous feral dogs due to misplaced public sympathy for them. Human beings and human concerns should come first!
Thank you for your efforts to take care of the problem.
(Please feel free to forward this letter to whomever you please, if that would be helpful to you.)
-- DMH Please feel free to write your own brief letter of support to the County Commissioner (AmyLathen@elpasoco.com). She needs some moral support for her totally just decision to prioritize humans and livestock over dangerous feral dogs. Basically, it's a good opportunity for a wee bit of activism against the animal rights crusaders. And it could make a great deal of difference to the safety and welfare of the people and livestock terrorized by these dogs.Labels: Animals, Environmentalism, Law
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| Friday, August 15, 2008 |
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Jury Nullification
By Diana Hsieh @ 12:06 PM
This interesting Volokh Conspiracy post on jury nullification reminded me that I've been called for jury duty on Tuesday.
Suppose that I'm asked to sit on a trial of a person for possessing and/or selling illegal narcotics. Suppose that he's obviously guilty. Should I vote to convict or not?
If America were substantially free, I would be somewhat more inclined to oppose jury nullification, on the grounds that any bad laws can and perhaps ought to be repealed by the legislature or struck down by the appeals courts. Moreover, to engage in jury nullification might seem to be an attack on the principle of the rule of law, as it would permit juries to decide willy-nilly whether to enforce the law of the land or not.
However, I'm not convinced that that's right for two reasons. First, that approach involves sending people to prison (or inflicting some other punishment) for something that they have a perfect right to do. That seems to be a moral sanction of the unjust law, not to mention participating in a blatant rights violation. Second, jury nullification on a high profile case can serve as a major public rebuke to an overreaching legislature. (That happened in some of the sedition cases in America's early years.) Moreover, the judicious use of jury nullification in select cases is not tantamount to anarchy, I don't think. It can and ought to be used selectively and purposefully.
However, America today is not a substantially free society, so the case for jury nullification is even stronger. In fact, as concerns drug laws, America is far closer to a police state than a free society. The most recent mind-numbing case is the raid on the home of Berwyn Heights Mayor Cheye Calvo: "A Prince George's County, Maryland SWAT team raided the home of Berwyn Heights Mayor Cheye Calvo last night, shooting and killing his two black labs in the process." The man was totally innocent: drug dealers sent a 30 pound package of marijuana to his house, planning to intercept it. The police treated him as guilty until proven innocent, despite the fact that all evidence pointed to his being an upstanding citizen. (You can find links to more posts on the story here. Here's another horrific case. In general, Radley Balko is a good source for news about the frightening tactics of police in pursuit of the war on drugs. He's on vacation now, however, so other people are guest-blogging for him.)
So... back to my original question: If I'm picked for a jury, should I send a person to jail for an action that ought not be a crime at all -- on the grounds that I ought to respect the rule of law, even when I disagree with the particular law in question?
Unless someone offers a good reason for me to think otherwise, I'll have to say "no way, buster." You've got until Tuesday morning to convince me otherwise, if you wish!Labels: Law
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| Monday, August 11, 2008 |
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Happiness is a Warm Puppy
By Paula Hall @ 2:06 AM
I couldn't have said it better myself:
Pet rentals
Now banned in Boston, perhaps because of the risk that they might bring too much happiness to the humans involved. The Massachusetts House has passed a bill that would outlaw pet rental in Massachusetts:
The bill, filed by Representative Paul K. Frost, Republican of Auburn, outlaws pet-rental companies because of what he called "public health, public safety, consumer concerns, and ethical issues."
"I'm very pleased we were able to get it passed today and engrossed in the House," Frost said. "It's a kind of business model that fosters disposable pets." Let's unpack that one, shall we?
People presumably rent pets because they enjoy them but have decided they're really unfit to own one. Or perhaps they are unsure whether they want a pet so they want to try it out first. Isn't it better that these people don't proceed directly to pet ownership? And doesn't this create a larger pool of potential owners, as potentially responsible pet owners, originally unsure of their fitness and so abstaining from ownership, learn first-hand that they really would be a great pet owner?
Now, consider the following facts about the pet rental business in question:
- All of the pets are rescued animals who have been socialized and trained.
- The pet rental company lets you adopt a pet you like.
- The pets aren't kenneled, but live in homes when they're not being rented.
- After they've passed rental age, they're placed into permanent homes and provided for by the pet rental business -- for life.
- Any pet rental company with crazed animals is going to go out of business, after which its owners will be sued into oblivion.
- The only way to sell a desirable product -- an enjoyable animal companion, in this case -- is by treating it very, very well.
Read more of the FAQ at FlexPetz and you'll realize just how well those pets are treated. I don't think that the people who are against pet rental have actually read the FAQ and understood how ethically that business operates. It's clear that pet rental is a perfect option for animals in shelters and pounds that no-one is adopting, but who are otherwise adoptable. Would the animal activists prefer that these animals languish in shelters with no human attention for the last miserable days of their lives?
Frankly, I think pet rental will promote pet adoption. And for those pets no-one wants to adopt, at least they'll be treated very well simply because of the profit motive, and because they will never have to spend time with a human who isn't 100% excited to have them around.
None of this is to say that animals, even those humans adopt as pets, have any legal rights. They don't. But it is possible to pass judgment on whether a person's behavior towards an animal is moral or immoral. FlexPetz looks decidedly moral.
For the people opposed to this business, I think happiness is a miserable puppy. Lonely animals on death row in shelters give them something to vent their nihilistic rage about.
(Cross-posted at ms. think.)Labels: Animals, Law
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| Saturday, August 09, 2008 |
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Is There Such A Thing As Conditional Property?
By Paul Hsieh @ 12:15 PM
The topic of "conditional property" came up briefly in the comments section for the "Stealing Jesus" post, and I think it's an interesting one. Although I'm not a lawyer, I'd like to offer a few thoughts and I gladly welcome further input from those with more legal knowledge.
Leaving aside the specifics in the original post on the Communion Wafer, here is the interesting broader question:
Can one sell or give property to another person, yet have the new owner bound by some sorts of conditions that restrict his or her use of that property?
Under ordinary circumstances, I'd say the answer is "no". If I sell my old laptop computer to someone, then he becomes the new owner and he can do with it what he wants (provided he doesn't violate anyone else's rights). So he can use it as a computer, he can sell it to his cousin, he can use it as a doorstop, can use it for target practice, etc.
Of course he couldn't use it as a club to smack his neighbor over the head, because that would be violating someone else's rights. But apart from that, the laptop is his to do with as he pleases. And note that this restriction applies to any of his rightfully-owned property. He couldn't use his legitimately-owned baseball bat or crowbar to beat his neighbor over the head any more than he could use the laptop.
This common sense understanding that property ownership is not conditional is mentioned briefly in a passage in Atlas Shrugged, in the scene where Ragnar Danneskjold hands to Rearden a bar of gold (emphasis mine):It is not a gift, Mr. Rearden. It is your own money. But I have one favor to ask of you. It is a request, not a condition, because there can be no such thing as conditional property. The gold is yours, so you are free to use it as you please. But I risked my life to bring it to you tonight, so I am asking, as a favor, that you save it for the future or spend it on yourself. On nothing but your own comfort and pleasure.
(From Part Two, Chapter VII, "The Moratorium On Brains") In this context, where Rearden is taking possession of gold that is rightfully his, then I completely agree -- Ragnar does not have the right to impose any sorts of conditions on Rearden's use of his own property.
However, there are other contexts where I think there can be restrictions on one's use of property that one owns. In particular, I can think of two ways in which this can happen.
The first is when the original owner sells you the property minus certain specific rights. For instance, a property developer might sell me a plot of land on which I can live and build my house, but he might retain to himself (perhaps to sell to someone else) the mineral rights for that plot. In that case, I can't go digging for gold on the property, since I never acquired those rights in the original purchase, even though I can still plant apple trees in my backyard and otherwise exercise all the other rights associated with that land.
I still own the land and the rights to build a house or plant apple trees. But I don't own the mineral rights. I don't consider this unusual or problematic. It's no different than if I purchased the land outright (including the mineral rights), but then subsequently sold those mineral rights to someone else and kept the rest for myself.
If there are certain rights associated with a piece of property that can be separable in this fashion, this situation will arise. This occurs commonly with intellectual property. For instance, an author might retain the rights to the book form of his or her novel, but sell the movie rights to someone else.
A second form of something that seems a lot like "conditional property" is when money or property is donated to another organization with specific provisions and requirements on how the property must be used.
For instance, suppose I own a valuable painting by Rembrandt, and I would like to see it go to a new owner that shares my values and shows proper respect for the work. In that case, I might wish to donate it to my local art museum on the condition that they agree to keep it on public display 6 months out of the year for other art lovers to enjoy, and they also agree to keep it in the usual secure climate-controlled conditions to preserve its value. In particular, I don't want to see it in the hands of some wealthy slob who will abuse this masterpiece by using it as giant beer coaster in his living room table.
Assuming that I and the art museum draw up an appropriate contract with clear unambiguous terms specifying their rights and obligations (including clauses to ensure proper monitoring and enforcement), then the museum would own the painting, but they should be bound by these conditions. So in this sense, it acts very much like what some people might call "conditional property", but as a matter of explicit contract.
I'm not a lawyer, so I don't know how best to structure a contract that would take care of cases where the museum fails to live up to its promise. In that case, should the painting revert back to the me, the original owner? Or to a second-choice owner or some sort of legal trust? I'm not sure. But although I don't know how best to implement this principle, I believe the underlying principle is valid.
Note that these sorts of situations are also relatively common. A wealthy industrialist might wish to donate $1 million dollars to his alma mater in order to fund a full-tuition scholarship for the top undergraduate chemistry majors in each year. If the university took that money, they should be bound by that agreement and not spend that money on, say, a new gymnasium for the basketball team. So even though the university owns the money, they again have restrictions on what they can rightfully do with that money.
Summary: In its simple form, barring any explicit agreement otherwise, I believe there is no such thing as "conditional property".
But I also believe that it is possible to acquire property as part of a voluntary contractual agreement where the terms include legally binding restrictions on what one can or cannot do with one's newly-acquired property. (Whether the proper term for this is "conditional property" or whether there is a more appropriate term for this concept is a separate question.)
Postscript: There are all sorts of interesting secondary issues that one could explore -- for instance, what sorts of contracts should be enforced, what about mind-number 100-page end user agreements where there may not have been a true "meeting of the minds", etc. I'll leave those subtleties to those with a better understanding of the philosophy of law than myself.Labels: Law
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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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| Tuesday, June 10, 2008 |
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Police Corruption in Chicago
By Paul Hsieh @ 4:53 PM
Chicago police officer Keith Herrera (and FBI informant) has reportedly described some extremely shocking and disturbing behavior amongst members of the elite Special Operations Section of the Chicago Police Department.
For instance, these officers lied in official police reports to frame suspects for wrongs they did not actually commit:As an example, Herrera said, a drug suspect might be listed in a report as refusing to surrender his gun even if he had dropped the weapon.
..."Creative writing was a certain term that bosses used to make sure that the job got done," Herrera, referring to fabrications on police reports... Nor was this just the action of a few rogue officers. Officer Herrera reports that this was a policy explicitly sanctioned and encouraged by his superiors on the squad:"I didn't just pick up a pen and just learn how to (lie). Bosses, guys that I work with who were older than I was... It's taught to you." Even worse, some officers on that squad committed crimes themselves, including stealing and plotting murder against fellow police officers:Herrera said he began stealing from people he arrested but decided to go to the FBI after the group's leader proposed killing two colleagues who were threatening to testify against him.
He said the ring leader, who has been charged with plotting a murder for hire, told him in a conversation he recorded for the FBI that there would be a "paint job" and if it was done right "we'd never have to paint again." Herrerra blames this atrocious behaviour on the so-called "war on drugs":Keith Herrera told CBS' "60 Minutes" that pressure to get drug dealers and their guns off the streets led first to cutting corners and then to crime. If Herrera's accusations are correct, there are a couple of deeply disturbing implications.
1) When the government stops protecting individual rights and instead prohibits activities that should be legal (such as selling drugs), it creates an atmosphere ripe for police corruption. We saw that in the early 20th century during the era of alcohol Prohibition, and we are seeing it in the current "war on drugs".
(Just to be clear, I believe that selling, purchasing, and consuming drugs like heroin and crack cocaine is both irrational and immoral, but should not be illegal.)
2) Without a clear set of objective principles to guide the actions of law enforcement agents, they can quickly become agents to the whims of their political superiors, first "cutting corners" and later committing actual crimes.
If a culture of unprincipled pragmatism and unthinking obedience to superiors becomes widespread in the law enforcement community, then this becomes extremely dangerous. In particular, it creates a ready training ground for thugs willing to enforce the wishes of any future dictatorship. This is the end result when law enforcement agencies are not guided by the proper principles, such as respect for individual rights and the rule of objective law.
Under a proper system of government, law enforcement agencies will be guided by the following principle as articulated by Ayn Rand:...[A] government holds a monopoly on the legal use of physical force. It has to hold such a monopoly, since it is the agent of restraining and combating the use of force; and for that very same reason, its actions have to be rigidly defined, delimited and circumscribed; no touch of whim or caprice should be permitted in its performance; it should be an impersonal robot, with the laws as its only motive power. If a society is to be free, its government has to be controlled. ("The Nature of Government", The Virtue of Selfishness) Hence, if these officers are indeed guilty of the alleged crimes, I hope they meet the same impartial, objective justice that all criminals deserve.Labels: Law
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| Thursday, June 05, 2008 |
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Property Rights in Outer Space
By Paul Hsieh @ 11:52 AM
There have been a couple of recent articles on extending the concept of private property into outer space. One is from the May 18, 2008 Boston Globe entitled "My Space", and one is from the June 2008 issue of Popular Mechanics entitled "Who Owns the Moon? The Case for Lunar Property Rights". (Both links via Instapundit.)
Here are a couple of noteworthy quotes from the Boston Globe article:There's a variety of opinion as to how extensive extraterrestrial property rights should be - whether to allow, for example, the outright buying and selling of land, or whether to forbid ownership and instead rely on leases, trusts, and easements - but there's nonetheless a growing consensus that some form of space property is inevitable and necessary.
..."Property rights will provide the only economic incentive that will possibly justify entrepreneurial space exploration," says Alan Wasser, chairman of the Space Settlement Institute and the former CEO of the National Space Society. One can legitimately debate the merits of the various proposals to apply the concept of "property rights" to this new realm. But I'm glad that the discussion is at last beginning.
As Ayn Rand noted in her essay, "The Property Status of Airwaves", in Capitalism: The Unknown Ideal:Any material element or resource which, in order to become of use or value to men, requires the application of human knowledge and effort, should be private property—by the right of those who apply the knowledge and effort. The precise and proper application of the concept of property rights to new areas may require some hard intellectual work. For instance, the guidelines for the airwaves are different than for real estate. Similarly, the rules for intellectual property in the era of easy internet dissemination of MP3's may be different than the rules for tangible objects. But as long as men need to think and use their minds in order to create the values necessary for life, the broad principles and justifications for property rights will always apply.Labels: Law, Technology
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| Tuesday, May 27, 2008 |
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Turning Off the Lights of the World
By Paula Hall @ 1:40 AM
Ayn Rand's masterpiece Atlas Shrugged ends when the lights go out in the world:
The plane was above the peaks of the skyscrapers when suddenly, with the abruptness of a shudder, as if the ground had parted to engulf it, the city disappeared from the face of the earth. It took them a moment to realize that the panic had reached the power stations---and that the lights of New York had gone out. . . .
She remembered the story Francisco had told her: "He had quit the Twentieth Century. He was living in a garret in a slum neighborhood. He stepped to the window and pointed at the skyscrapers of the city. He said that we had to extinguish the lights of the world, and when we would see the lights of New York go out, we would know that our job was done." In the novel, the lights go out as a result of willful evasion -- the refusal of the world's leaders to acknowledge that it is the power of the mind to reform nature in its own image that keeps the world alight. Evil enough, as far as it goes.
Now it's worse. Now there are people actively looking for the world's light switch and positively salivating at the prospect of flipping it off.
Many commentators, not just at NoodleFood, have identified the man-hating irrationality in the leadership of the environmental movement. (For example, see NoodleFood here; see The Ayn Rand Institute here and here.) But I speak of a new horror: the advent of lawsuits charging specific companies with responsibility for global warming and demanding compensation for damages. This phenomenon unites an unholy trinity of destructive factions: the acolytes of the environmental movement; fear-ridden and pandering lawmakers; and those prepared to cash in on the regulatory scheme resulting from the self-reinforcing lunacy of the first two -- the plaintiff's bar.
Kivalina is an Inupiat Eskimo village in Alaska. As of the 2000 U.S. Census, over one-quarter of Kivalina's residents lived below the poverty line. In 2006 the U.S. Army Corps of Engineers described Kivalina as follows:
Kivalina is home to 402 residents, who live in very overcrowded conditions in just over 70 homes. The community is predominately Alaska Native, and residents depend on subsistence activities for a majority of their caloric intake. The community does not have a piped water or sewer system, except for running/piped water in its school and washeteria. Residents rely on self-haul water and on honey buckets for human waste. 
The village is experiencing catastrophic coastal erosion; ice which used to prevent shore damage from fall and winter storms has been melting. Unsurprising, given its location, shown above (New Orleans, anyone?). To continue its existence, the village must relocate. The U.S. Army Corps of engineers estimates it will cost anywhere between $150 - $250 million.
Kivalina is suing energy companies for $400 million.
Two non-profits, the Native American Rights Fund (NARF) and The Center on Race, Poverty & the Environment have filed suit on behalf of Kivalina against 24 energy companies. The nonprofits have teamed up with -- wait for it -- attorneys who successfully sued big tobacco companies. If the suit is succesful, the attorneys' fees will be about 30% to 40% of the recovery. Meaning that what's left for the plaintiffs will be pretty much the amount the U.S. Army thinks it will cost to relocate the village. Pretty neat how that works out, eh?
The Atlantic Monthly writes:
[T]he suit also accuses eight of the firms (American Electric Power, BP America, Chevron, ConocoPhillips, Duke Energy, ExxonMobil, Peabody Energy, and Southern Company) of conspiring to cover up the threat of man-made climate change, in much the same way the tobacco industry tried to conceal the risks of smoking—by using a series of think tanks and other organizations to falsely sow public doubt in an emerging scientific consensus. In other words, attorneys plan to throw the tobacco playbook at rich energy companies. The message the case wishes to convey is that energy companies knowingly caused global warming and must pay for the damage they've wrought by selling the fossil fuels that provide the world with energy.
There is no scientific consensus on the extent or causation of global warming (putting it charitably). But that is not the biggest problem with the lawsuit. The real problem is that to the extent the lawsuit is successful, it brings mankind closer to the squalid standard of living of the population of Kivalina.
The ability to use fossil fuels for our own benefit is the predominant reason humans enjoy the standard of living that we do. And it's not like this is a big secret: witness developing nations' persistent objections to global emissions policies on the grounds that their priority is economic development.
So here we have the spectacle of million-dollar attorneys . . .
. . . driving their fossil-fueled cars to work
. . . where they'll work well into the night in offices brightly lit using energy provided by the companies they're suing
. . . after which they'll go home to luxurious houses made comfortable through the use of energy to warm and cool their environment
. . . and enjoy a quality of life that would not exist but for the energy companies their lawsuits could put out of business.
There is a terrific irony here. The residents of Kivalina have a subsistence economy. The difference between a subsistence economy and the standard of living most Americans take for granted is based on the use and technology of energy. It takes energy to create factories that manufacture plumbing pipes and pre-packaged food, and it would take energy to transport these conveniences of modern life all the way up to Alaska by air, sea and land. But after lawsuits like this one have destroyed energy companies by wringing billions of dollars out of them on the grounds they've covered up evidence that does not exist, we may all end up living like the residents of Kivalina.Labels: Environmentalism, Law
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