Regulating sex

Ugh... what a terrible article. In Regulating Sex, Judith Shulevitz argues that affirmive consent laws could lead to a host of unintended problems. I think her concerns are way overblown.

Shulevitz introduces a hypothetical proposed by 70 of the 4,000+ members of elite American Law Institute:

Person A and Person B are on a date and walking down the street. Person A, feeling romantically and sexually attracted, timidly reaches out to hold B’s hand and feels a thrill as their hands touch. Person B does nothing, but six months later files a criminal complaint. Person A is guilty of ‘Criminal Sexual Contact’ under proposed Section 213.6(3)(a).

I'm not a lawyer, but this doesn't seem like a big issue. The authors simply take for granted that the "thrill" constitutes "sexual gratification," but does it really? Would person B actually complain? Would a prosecutor prosecute? Would a judge or jury find that holding hands constituted sexual gratification?

And, maybe, it really might be a bad idea to hold someone's hand without their express permission.

Shulevitz also worries about disproportionate penalties. Even per the above, if Person B complains, a prosecutor prosecutes, and a judge or jury actually finds Person A guilty, should Person A above be imprisoned for years and be publicly registered as a sex offender?

Well, duh, no. We can create degrees of "Criminal Sexual Contact," for which inappropriate hand-holding could be only an infraction. Our present definition of criminal sexual contact only prohibits the most extreme behavior, and thus warrants a proportionate penalty; if we're going to radically broaden the definition, then we can just as easily make the penalties proportionate.

All these sorts of weird edge cases are important, and the best minds of law should think about them carefully and write the statutes appropriately. But we have hundreds of years of experience fine tuning laws like this. This kind of minutia is appropriate for expert legal debate, but not to challenge the political concept of affirmative consent.

Essentially, Shulevitz asks what might happen if "victims", politicians, prosecutors, judges, and juries all act in extraordinarily moronic ways or with unaccountably bad faith. But the law is not set up as algorithms to regulate the behavior of morons. The law applies to, and is administered by, human beings, not sphex wasps.

It is very important to remember that affirmative consent is being discussed to solve a real problem: women, often young and vulnerable, getting pressured or intoxicated and not actively protesting completely unwanted sexual activity. I'm willing to be a little extra careful about holding hands to decisively prosecute these real cases.

Discrimination and freedom of association

I'll let y'all check the original post Response to a Distressed Libertarian Reader about Discrimination, my reply, and Andrew's response.

Are we all up to speed now? Because I can't comment there right now (comments may be closed for the post), I'll reply to Andrew here.

I really don't care if your conscience is offended by having to serve gay people as part of a public accommodation. Yes, your freedom of association is being infringed. Tough. Too bad for your freedom of association. The people have decided that if you want to open a business to the public, you have to serve all the public. If your conscience is offended, too bad for you.

Could the government force us to compromise our freedom of association (or any other freedom) in unacceptable ways? In one sense, yes of course: the government has all the guns, and they can use these guns "justly" or "unjustly." In another sense, no: a truly democratic government cannot compromise a freedom in a way that the majority objects to: if they were to try, they would be voted out, and the compromise reversed. (Are we actually a democracy? Of course not. But in this case, the government is acting democratically.)

If this is a problem for you, if you believe that your conscience should never be infringed, would you extend the same right to those who believe, in all good conscience, that your stuff belongs to them? That it is an offense against their conscience that you have a nice car and they do not? I doubt it. Andrew just wants the right of conscience to extend only to his own conscience and those he agrees with, and not that of others.

Affirmative consent

In Sex Is Serious, Christian (presumably liberal) philosopher and theologian Elizabeth Stoker Bruenig parallels the politics of affirmative consent and conservative Christian, especially Catholic, sanctification of sex. Bruenig highlights a perspicacious, crucial element of conservative sexual ideology: fertility is, in their view, the essential, ineluctable component of sex; to withhold fertility is to render whatever physical acts ensue as not sex. Indeed, by withholding fertility, people corrupt the physical act, rendering the act something not just irrelevant but deeply and perhaps permanently harmful. Critically examining the ethics of affirmative consent, with the recent passage of California's SB 967 as a paradigmatic example, Bruenig notes that advocates of affirmative consent hold that consent, in the strongest form, is the essential, ineluctable component of sex; without consent, whatever physical acts ensue are not not sex, and deeply harmful. Bruenig juxtaposes affirmative consent with the general feminist complaint against pornography to draw the conclusion that like conservative Christianity, "consent feminism" seeks to use state power to impose normative sexuality, a vision of what sex ought to be: "The law makes a statement about the nature of the right kind of sex in general, and also claims that the right kind of sex is serious enough to merit legal intervention." While Bruenig accurately notes a similarity, the similarity is trivial and misses the truly important question: who decides what kind of sexuality is right or wrong?

The juxtaposition of consent and pornography is specious. The feminist critique of pornography has never been that viewing sexual activity for the purpose of arousal is by itself inherently bad. The critique is, and always has been, that in a patriarchal society, pornography is predominately a tool used to culturally normalize the inferior and subordinate status of women. As Gloria Steinem says in the interview Bruenig links to, "We have to say pornography is not erotica, porn means female slavery. It means the depiction of female slavery." There are exceptions, but pornography as normalization of subordination is so pervasive that it deserves general condemnation; the exceptions truly are exceptional. A good analogy, perhaps, is with the police: in theory, the police serve an important, perhaps necessary social role; in practice, however, in a misogynist, racist, capitalist society, the police so predominantly serve as an instrument of oppression of women, people of color, and the poor and working class that they deserve general condemnation. The practical critique does not necessarily negate the theoretically positive value. Pornography is not about sex at all; it is about subordination. But pornography is a side issue.

Because sex happens between (at least) two people, sex is an inherently social act. The frequent use of erotica (and perhaps pornography in the feminist sense) in masturbation makes even this apparently individual act deeply social. Thus, the question is not whether we construct social norms and customs about sex; the question is what kind of social norms and customs we construct. Even the idea that people should have nothing at all to say about others' sexuality would be a social norm, in need of construction. And even then, we would still have to socially negotiate what are appropriate and inappropriate ways, places, and times that people get into sexual relationships. Advocates can unreservedly admit to the charge that we are trying to use the law not to codify existing standards but to change the culture. [ETA] Bruenig herself is trying to advocate her own vision of what sex should be - fluid, spontaneous, without a lot of niggling worries about consent. [/ETA] If Bruenig were just trying to draw and deep parallels between conservative Christians and consent feminists just on the basis of participating in the social construction of sexual norms, she would be making a completely trivial point: social people are social.

To my knowledge, no one believes that sex is unimportant or trivial. Affirmative consent ethics are not at all hypocritical or contradictory. Sex-positive feminism is not dedicated, as Bruenig claims, to "everyone having fun"; sex is not "little more than a silly pastime." The "SlutWalk moment" was not about affirming the value of "frivolous no-strings-attached" sex. It was about establishing women unapologetically as sexual beings, who want sex, and, more importantly who get to choose and consent themselves to expression of their own sexuality on their own terms. If that happens to be casual sex, well, that's their own choice, not mine. Consent is not necessary to protect casual sex; the fundamental point of SlutWalk is that sex is not something that must be pushed onto categorically sex-averse or -ashamed women; women can and do consent to sex, for their own enjoyment and fulfillment. Again, were Bruenig simply saying that affirmative consent ethics upholds the importance of sex, she would be making another trivial point.

But Bruenig has a deeper point: affirmative consent takes something important away from sex. Bruenig argues first that the law has always required consent; new laws change only the "expression of consent, which is an intervention into the way sex is [emphasis original]." According to Bruenig, affirmative consent ethics promote

a particular kind of sex, specifically that which is marked by mutual concern, unreserved enthusiasm, and ongoing mutual engagement—a shared focus on body language and verbal cues, refreshed step-by-step, underscored by an honest concern for the other person’s mental and emotional state with regard to the sex act

but ignore "bored sex, disinterested sex, or sex with reservations [emphasis original]." Affirmative consent ethics make women fundamentally mysterious: "women are essentially unknowable, that the usual ways of reading us can’t be trusted, and that our minds must be constantly probed for affirmative signals." Affirmative consent ethics, according to Bruenig, change how we have sex, but do not address sex as it actually is.

Bruenig, however, massively overstates her case. Even in a perfect world, without a hegemonic patriarchy, and even if affirmative consent laws were applicable generally instead of just to higher education institutions in California, affirmative consent does not change how sex is except to exclude rape. First, Bruenig unaccountably asserts that according to SB-967 excludes body language as a form of consent. Antioch College's 1993 sexual assault policy does require verbal consent (which in context is not a terrible idea; see below), but SB-967 says nothing of the sort; it mandates that agreement must be "affirmative, conscious, and voluntary" as well as ongoing. I've been sexually active for around thirty years, from one night stands to marriage, and I have never had a problem interpreting body language as unequivocally granting or withholding consent. Consequently, I have never had a problem with a woman later asserting that I had unconsciously or inadvertently violated her consent. Establishment and maintenance of consent has never caused a lack of passion, spontaneity, fluidity or any other positive aspect of sex.

The only thing that affirmative consent ethics establish is that "I didn't know he or she did not consent" is no longer a defense against sexual assault. SB-967 says that the only legitimate defense to sexual assault is "I had good reason to know he or she did consent." Indeed, SB-967 does not change the legal theory of sexual assault that much. In edge cases, such as statutory rape above a particular age, consent been an affirmative defense against charges of sexual assault: the defendant has the burden of proof, not the prosecution. Fundamentally, I would never defend myself against a charge of sexual assault by saying only that I didn't know a woman did not consent; if I do not know — and have good reason to know — a woman really does consent, I don't have sex. I have been at every stage of sexual activity when a woman has subtly or obviously indicated that she wants to stop. I stop. Period. I do not proceed unless and until I am absolutely clear that she wants to stop. Period. This is not rocket science. Affirmative consent places zero additional boundaries on my own sexuality.

I am personally a relatively sophisticated, perceptive middle-aged man. Not every college student, however, has the benefit of my upbringing and experience. It is critically important to understand that SB-967, as well as the Antioch College policy are aimed not at sophisticated, independent, self-confident adults, but at college students. These are typically young men and women, both sexually and socially inexperienced. Yes, we want to let them experiment, we need to allow them, as the 1993 New York Times article, 'Ask First' at Antioch,, that Bruenig cites, to make mistakes. But only some mistakes. Although no longer acting in loco parentis, college administrators need to help young people avoid catastrophic mistakes. We do not, for example, want to blithely allow young women to mistakenly become pregnant. We do not want to allow young people to mistakenly get sexually transmitted infections. And we do not want young people (indeed anyone) to "mistakenly" violate the personal autonomy and integrity of another person. Hence colleges prohibit bullying and fraternity hazing. And they should also take steps not ordinarily necessary for adults to prevent non-consensual sex. Even the Antioch College policy is reasonable. There are, of course, sexually and socially sophisticated eighteen year olds, who will largely take care of themselves, but if you're become sexually active with an inexperienced eighteen year old, especially if you yourself are more experienced and sophisticated, you could do a hell of a lot worse than establishing explicit verbal consent at every stage. That's how a person becomes sophisticated and experienced, and can move on to more subtle forms of communication.

Fundamentally, consent is first of all complex, and it is not about only sex: consent is the fundamental virtue of liberalism. (The Marxist critique of liberalism and capitalism does not deny the value consent; we claim that consent is necessary but not sufficient, especially in cases of indirect economic pressure.) Even a world without patriarchy, establishment of affirmative consent just brings this fundamental liberal value to the realm of sexuality.

But of course we do not live in a perfect world: we live in a world where patriarchy, although compromised, still retains considerable power. Men do get raped, and violation of consent for men, especially young homosexual men, is an important issue. But rape and sexual assault is a special problem for women. As Susan Brownmiller argues extensively in Against Our Will: Men, Women, and Rape, for centuries, perhaps millennia, the patriarchy has used rape (among other means) to exert its power and domination over women. Rape is not an isolated criminal act; rape has been, and still is, a tool to maintain the subordination of women. Even overt, forcible rape is still inadequately prosecuted, especially on college campuses when committed by high status male students such as athletes and fraternity members. (e.g. here, here, here, here, and an attempt at a depressingly long comprehensive list of just college rapes football players). A frequent defense in these overt rapes is that the perpetrators believed the victim had consented, placing the burden of proof on the victim to show she unequivocally did not consent. Shifting the burden of proof to the perpetrators can help shut down this legal strategy.

[ETA (forgot to pay off my thesis statement!] It's unclear why Bruenig tries to compare conservative Christians. If she were writing a college "common ground" essay, she would argue that the common ground between conservative Christians and consent feminists was a good thing (if it were to exist; I'm unconvinced that conservative Christians really have the temporal fulfillment of human beings at the forefront). Instead, she seems to take more of a "pox on both your houses" view, an Eric Hoffer communists-and-fascists-are-the-same view that people who are genuinely concerned about sex and its place in society are both trying to ruin it, or at least subordinate sex to a political agenda. But the question is not about what sex should be, it's about who decides how sex should be.

There are really only three possibilities about who should decide. First, morally privileged authorities such as the church. If you think you're enjoying sex, but it's not procreative, then they know, because they have privileged information about what God thinks about sex, that you're just fooling yourself, and you need to be protected from your own stupidity and moral ignorance. Second, the powerful (with, obviously, some overlap with authority). Men are typically stronger and more powerful than women; the mob is more powerful than the individual. Whatever men can get by force, overtly or subtly, is by definition good. Third and finally, the individual. It is the great paradox of liberalism* that the rights and privileges of the individual can be guaranteed only by the state; otherwise, the individual is always subject to the mob. Fundamentally, that's what feminist affirmative consent ethics do: make sex whatever each individual wants it to be, irrespective of what anyone else might think, necessarily using state power to protect the weaker from the stronger, and the individual from the mob. Intentionally or not (probably unintentionally), Bruenig regrettably comes down on the side of the stronger against the weaker.

*Socialism expands and does not resolve this paradox; communism (hopefully) resolves the paradox by securing to each individual sufficient economic power to truly make the state wither away.

The message that affirmative consent gives to women, especially young women, is that their sexuality is their own, no one else's, and they are free to consent, and free to withhold consent, at their pleasure, not anyone else's. This is the basis not only of modern liberal virtue but of the empowerment and freedom of every woman. These standards deserve our unequivocal, uncompromising assent.

Paying for birth control

The argument that employers such as Hobby Lobby have a right to refuse to pay for birth control seems nonsensical on its face.

My employer pays for everything* I buy. They pay my rent, my food, my car, my beer, my movie tickets. All of this money comes from my paycheck. Traditionally, we hold that although my employer pays for everything I buy, they have no standing whatsoever to tell me how to spend it. We could, of course, make a different social decision about that, but if a principle of law is to keep things consistent, then the obvious answer is that the employer is paying employees in money, and employers cannot dictate what employees do with that money, whether the money is paid directly to the employees or passed through directly as premiums to an insurance company.

*Or would if I still worked a straight job.

Just that companies are mandated to buy insurance does not change anything. Companies have a lot of coercive mandates regarding my paycheck. They have to pay me the minimum wage, they have to pay me for all my time, they have to pay me on time, they have to pay social security taxes (mine and theirs) and unemployment insurance premiums, etc.

The whole point of paying employees in money instead of in kind is precisely to place the decision about what to consume in the hands of the employees. If we are consistent on the principle of payment in money, then we either say that employers have no say on how employees spend their pay, or employers have say over everything employees buy with their pay.

Of course, the consistency the Supreme Court is actually employing is that conservative employers have say over how female employees manage their sexuality. Women (especially women workers) are, of course, inferior, and women's sexuality is evil (unless they're having sex to pop out Republican babies and no orgasms please). It is of the highest social necessity that someone regulate women's sexuality; if we let government do it, we might end up with something (ugh!) democratic. It's much better to place this regulation in the hands of corporations; the owners of land and capital have been explicitly and intentionally insulated from democracy since the founding of the republic.

Self defense

In the comments to George Zimmerman and reasonable doubt Major Nav asks a hypothetical question: Assuming I were on a neighborhood watch, and I politely addressed someone whom I did not recognize,

What if the man you politely addressed in a non-threatening manner is pissed that you can now recognize him and may even have a picture. What if the man really was up to something.

Now he has tackles you to the ground and starts to thump you.

What would you do to make the beating stop? Would you shoot him? At this point, would it matter what color he was?

He goes on to accuses me of avoiding the question and asks,

Are you saying you would only defend yourself from a beating if you could have evidence it was self-defense?

Your almost there. No one has the right to kill anyone. But everyone has the right to defend themselves/family, even if that means using lethal force.

I did not answer this question because in the context of the Zimmerman case, this is a Bad Question. It attempts to analogize an hypothetical case with facts that are, at the very least, not in evidence in the Zimmerman case.

Major Nav seems to assume that the crux of the Zimmerman case is whether or not we have the right of self-defense. But that assumption is silly; no one argues the general validity of self-defense. The argument is under what conditions should juries and courts find self-defense, and how should courts determine whether or not those conditions have been met.

Before I examine the specific question, I want to mention a few things about legal theory in general.

There is an important distinction: 1) what actually happened in the real world, 2) what conclusions we can draw about what actually happened from the evidence available at s trial. (There's also the element of what kinds of evidence can and cannot be admitted for reasons other than probative value, but this element does not seem relevant to the Zimmerman case, and, as far as I'm aware, is not particularly important in considering self defense.)

If we are to have a civilized rule of law, we must make post hoc decisions based on the evidence available at the time of the decision, not what actually happened at the time of the conflict between the actions of an individual and the requirements of law. Thus, any person who wishes to act legally and also wishes to avoid legal consequences is prudent to not only act legally, but also act such that, if there is a trial, evidence supports (or does not undermine) his compliance with the law. It would be nice to have it, but we do not have perfect knowledge after the fact about what happened. In legal theory, we deal with imperfect knowledge in several ways. First, when determining if an individual actually committed acts proscribed by law, we place a burden of proof on the prosecution. When we do not know enough about what happened to determine beyond a reasonable doubt if an individual actually committed legally proscribed actions, then we do not subject that individual to legal sanction. We do not have to actually know with any confidence that an individual did not commit a proscribed action to find him or her not guilty; we find him or her not guilty if we do not know beyond a reasonable doubt that he or she committed a proscribed action.

By design, our laws are somewhat vague and imprecise. We will not punish someone even if they actually do commit, and we can know they committed, a proscribed action if they had a "good reason" to have done so. For example, the law forbids killing a human being; however, if someone has a good reason, such as self defense, for killing a human being, we will not punish him. However, having a good reason is an affirmative defense: the defendant has the burden of proof of establishing the good reason for committing what would otherwise constitute an illegal act. This is an important distinction: it is not enough to acquit someone that we do not know beyond a reasonable doubt that they did not have a good reason to commit an otherwise illegal act. (Sorry for all the negatives.) We must have positive reasons, which can be circumstantial, to believe they actually did have a good reason. Furthermore, the state can introduce evidence that the defendant's alleged good reason is specious or false.

For example, if I am in my home, and an person unknown to me climbs in through an open window and points a gun at me, and I shoot him, then I have circumstantial evidence that I acted in self-defense, even though there is no direct evidence that I did so: there is an dead unknown person in my house, there is a loaded gun in his hand, and the state cannot establish any credible motive for the killing other than self defense. Even without "Make My Day" laws (which I don't find particularly objectionable), it's usually relatively easy, if one is careful about one's story, to affirmatively establish self defense.

These specific questions are relevant to the Zimmerman case. First, we know beyond a reasonable doubt that George Zimmerman shot and killed Trayvon Martin. The state's burden has been met, and reasonable doubt on the part of the prosecution is trivially irrelevant to the Zimmerman case. Second, George Zimmerman alleges self-defense, which is an affirmative defense.

Note that Zimmerman's legal guilt or innocence is no longer particularly relevant; he has been acquitted, and unless the state charges him with a substantively new crime, even new facts about the original act cannot change the verdict. Similarly, the right of self-defense in general is not an issue; there is no controversy that in general, self defense is a good reason for killing another person.

Instead, what is at issue are more general questions: what actually constitutes self defense? What does a person need to do to establish, after the fact, that he or she killed a human being in self defense? What circumstances should we, as a society, consider when determining whether or not a killing was actually in self defense?

I want to repeat: that we cannot know beyond a reasonable doubt whether or not Zimmerman acted in self defense is absolutely not a legal defense. The burden is on Zimmerman (and anyone else acting in self defense) to prove by the preponderance of evidence (if Wikipedia is to be trusted in this matter) that he acted in self defense.

The real question in the Zimmerman case, and cases of "vigilante" killings in general, is how widely we consider the antecedent actions of the defendant in determining whether or not self defense is a good reason for a killing.

As best I can tell, the jury acquitted Zimmerman because they considered only the immediate circumstances surrounding Trayvon Martin's death. Because I am not a lawyer, and even if I were, I am not at all familiar with Florida law, I do not know whether or not the jury (or the judge's instructions) acted according to Florida law in considering only those circumstances. Instead, I want to consider the general legal theory of self defense.

It should be uncontroversial that everyone must, to some extent, forfeit otherwise legal rights to preserve human life. For example, few would object that, even though I have the legal right of way to proceed down a street at the speed limit, I must slow down if it is safe to do so to avoid hitting a jaywalking pedestrian. On the other hand, there are upper limits as well: I do not have to forfeit my right to life to avoid killing someone.

The question becomes: how far out of my way must I go, what legal rights must I forfeit, to avoid killing someone? There are, in general, three choices. First, a person must go "very far" to avoid killing. Second, a person need not go "very far" to avoid killing. Third, a person must go "very far" to avoid killing some kinds of people, but does not need to "very far" to avoid killing other kinds of people. (One common criticism of Zimmerman in particular and self defense acquittals in general is that the legal system seems to hold in practice that everyone much go significantly further to avoid killing white people than they must to avoid killing black people.)

I hold the first position: one must go "very far" to avoid killing anyone. Specifically, I hold that everyone has a positive duty to avoid provoking a violent reaction. If I do something that reasonably and foreseeably would provoke a violent reaction, and I can avoid doing so without forfeiting an important legal right, then because I provoked the violent reaction, I cannot claim self-defense. If I find myself in a situation where I can reasonably foresee someone might use unprovoked violence, then yes, I will make very sure that I do my best to ensure that direct and circumstantial evidence will exonerate me. Finally, in the extremely unlikely case that I were in circumstances such that I needed to act in self defense, but I could not establish self defense by the preponderance of direct or circumstantial evidence, well, I would rather be convicted of murder than establish the precedent that people can go around killing others without a provable good reason to do so.

Finally, as mentioned before, one common objection to the Zimmerman verdict and verdicts like is privilege: one standard applies to the killing of black people, and a higher standard applies to the killing of white people. Fundamentally, it seems, especially in the Zimmerman verdict, that when the victim is black (and especially if the killer is non-black), people consider the circumstances more narrowly, they apply the reasonable doubt standard rather than the preponderance of evidence standard, and they give more weight to allegations that the black victim was reasonably threatening.

Had Trayvon Martin avoided being shot and instead George Zimmerman been killed, I have little doubt that the jury would have considered the circumstances more broadly (why was Martin in that neighborhood in the first place?), they would have applied a stricter burden of proof (did Martin really need to kill Zimmerman, rather than simply have a subjective fear of death?) and they would have presumed that Zimmerman was non-threatening, and required Martin to do much more to overcome that presumption than Zimmerman needed to confirm the presumption that Martin, a black child, was inherently threatening.

Take it how you will, but fundamentally, I believe that anyone who defends Zimmerman, on any basis, covertly believes that black lives are inherently less valuable than non-black, especially white, lives, and that black people have fewer legitimate rights to safety and security than do non-black and white people. You may argue all you like that you are just supporting Zimmerman on the facts and racially neutral legal principles, but it is difficult to convince me that you are not simply lying about your racism. I have seen too much evidence of the worst kind of despicable racism in our society to be easily convinced otherwise.

George Zimmerman and reasonable doubt

Sigh. I'm hearing that Florida prosecutors did not prove their case against George Zimmerman beyond a reasonable doubt. For example, BBC News reports that "Alan Dershowitz told BBC News that there was "reasonable doubt" about the facts of what happened." Dershowitz should know better: reasonable doubt is not an issue in the case, and if it were, Zimmerman would have been convicted.

The part of the case which the state's burden to overcome reasonable doubt would apply is as to whether Zimmerman actually shot and killed Trayvon Martin. However, this part of the case is not in doubt; Zimmerman admits to killing Martin. That's all there is for the prosecution's reasonable doubt.

Zimmerman did not try to raise reasonable doubt; instead, he raised the affirmative defense of self-defense. (Florida's "Stand Your Ground" law, which establishes that a person can claim self-defense even if he or she refuses to retreat, does not apply, because Zimmerman claimed that Martin had restrained him and he was unable to retreat.) An affirmative defense requires the defense, not the prosecution, to bear the burden of proof. The defense's burden is typically lower than the prosecution; the defense has to establish an affirmative defense not beyond a reasonable doubt but by only by the preponderance of evidence. The defense successfully argued that Martin attacked Zimmerman, and Zimmerman shot Martin in self defense.

It is possible that Martin really did attack Zimmerman. However, whether or not he did so is completely irrelevant. The relevant facts, which are not in dispute, are that George Zimmerman armed himself with a pistol, and went out of his way to intentionally create a situation, stalking and harassing Martin, with a strong likelihood of a violent confrontation. George Zimmerman could have prevented Trayvon Martin's death: he knew that his actions could cause Martin's death, he knew that by not intentionally provoking him he could have prevented Martin's death, he knew that he had no good reason to intentionally and deliberately create a situation that might lead to Martin's death, and he did so anyway. That, in my mind, makes Zimmerman an evil bastard guilty of the murder of a child, and our society complicit in that evil by exonerating him.

Religion vs. academic freedom

It's not quite burningly stupid, so it doesn't get the tag or the icon, but New Atheists Attack Academic Freedom is pretty close.

The Freedom From Religion Foundation (FFRF) wrote a letter to Jo Ann Gora, president of Ball State University, complaining that BSU professor Eric Hedin inappropriately mixes religion and science in his "Boundaries of Science" honors science class. The author of "New Atheists Attack Academic Freedom" (NAAAF) asserts that because there is no formal complainant, the FFRF's complaint is nothing but a publicity stunt. Furthermore, because the complaint addresses theistic evangelism in the classroom, the FFRF is being hypocritical because they do not address evident atheist evangelism in the classroom. The author of NAAAF concludes that because an outside organization is pressuring BSU to alter the content of its instruction, it is setting a dangerous precedent that might compromise academic freedom. While the author makes at least one good point, and is justly concerned about academic freedom, his case is too thin to be persuasive, and he fails to understand academic freedom in a thorough way.

The author makes an obvious error in attributing the FFRF's complaint to the New Atheists. The FFRF is an independent organization, and they speak only for themselves, not for the New Atheists in general. Indeed, some prominent New Atheists reject the action and the criticism of Professor Hedin. For example, Larry Moran, prominent New Atheist and University of Toronto Biochemistry Professor, criticizes the pressure against Prof. Hedin. In http://sandwalk.blogspot.com/2013/04/is-it-illegal-to-teach-intelligent.html, Moran states flatly, "I defend the right of a tenured professor to teach whatever he/she believes to be true no matter how stupid it seems to the rest of us." New Atheist icon PZ Myers concurs with Moran: While Myers believes that Hedin's is a "crap course" with "bad science and bad teaching," he asserts that "professors have to have the right to teach unpopular, controversial issues, even from an ignorant perspective. The first amendment does not apply; this is not a course students are required to take, and it’s at a university, which students are not required to attend." Attributing the opposition to Hedin's course to the New Atheists is an unwarranted generalization flatly contradicted by the obvious evidence.

Substantively, it is hard to see the FFRF's action as undue pressure. The FFRF does not have any authority at all over BSU, and BSU can, if they choose, simply ignore the FFRF's complaint. Similarly, the University of Toronto has received complaints from creationists about Larry Moran's teaching of evolution, and the university simply ignores those complaints. At its most "intimidating," the FFRF complaint says only that Hedin's class "crosses ethical and constitutional lines." In contrast, Corey Robin reports a recent challenge to academic freedom at City University of New York's Brooklyn College. Aside from the academic content, the key difference is that the BC complaint was made by a governmental authority with control over CUNY's budget. For an action to be undue pressure, the complainant has to have some institutional power over the defendant; the FFRF does not have any power over BSU; its complaint, therefore, is not undue pressure.

While I agree with Moran and Myers that academic freedom is important, academic freedom does not and should not be above the law, especially Constitutional law. Although he is a Canadian, Moran is scared that if the United States Constitution forbids advocating religion in the classroom, then it might be illegal in the United States to criticize religion in the classroom. Moran's concern, however, is misplaced. Constitutional law does not prohibit religion as such; instead, it requires secularism. For example, even though Sunday is clearly the weekly holiday for the majority Christian sect, the Supreme Court has held that requiring businesses to close on Sunday is constitutional, because the law has the secular purpose of providing a community-wide day of rest, peace, and quiet. Thus, if Hadin's course were to be found unconstitutional, at least under the Lemon Test, it would not be because it had religious content, it would be because it violated one of the prongs of the Lemon Test: it lacked a clear secular purpose, it had the primary effect of advancing or inhibiting religion, or it entailed "excessive government entanglement" with religion.

If some specific criticism of religion violated any of these prongs, it would be justly forbidden. But most criticism of religion in academia is implied, not overt. It has a clear primary secular purpose, teaching science, and teaching science, with all its contradictions of the truth claims of religion, does not entail excessive entanglement in religion. But if a professor at a publicly funded university does conduct a class with the primary purpose of inhibiting religion, his or her remarks are illegal and inappropriate. In this sense, the charge of the author of NAAAF has a valid prima facie point: if professors at public universities really are pushing atheism per se in the classroom, they are are violating the law and behaving just as inappropriately as the FFRF believes Professor Hedin is behaving. (Of course, it is possible that the complaints against atheist professors cited in NAAAF are substantively incorrect, which is why most universities require actual investigations before taking action.)

But more importantly, what are the limitations, if any, on academic freedom? To what extent does the non-academic public have a right to discuss and criticize what professors do in academia? It's pretty clear that actual legislative bodies directly interfering with academic content, as at CUNY, is definitely problematic and probably inappropriate. But Moran and Myers seem to go farther. Moran says,

I'm troubled by the fact that some people are calling for the instructor's dismissal and writing letters to the chair of his department. We really don't want to go down that path, do we? Academic freedom is important and it's especially important to defend it when a professor is pushing a view that we disagree with.

It's one thing to defend academic freedom. Although Moran and Myers obviously do not agree with Hedin, they believe that Hedin is using his academic freedom appropriately. But they seem troubled not just that Hedin is in any danger of having his academic freedom curtailed, but that the public is taking an actual position on the conduct of an academic. We have to make a clear distinction between raising and deciding, and neither Moran nor Myers makes this distinction clear. The public must be able to raise an issue, so long as the university gets to decide the issue.

Academia does not, should not, and cannot exist in a complete vacuum, above and entirely unaffected by popular opinion. We have a complex and imperfect set of institutions designed to insulate academia from popular opinion and other powerful institutions, such as legislatures, executives, and businesses. However, this insulation cannot be absolute. The university has a social role, which must be negotiated with all members of society; the university does not and should not have social authority, immune from any criticism.

Don't Download This Song

Separation of church and state

In his essay, Don't tear down that wall!, Roger Ebert argues against legislating religious morality on First Amendment grounds. Ebert draws an analogy between "the eagerness of states to permit the teaching of Creationism . . . in public schools" and "the attempt to legislate birth control, abortion and other matters pertaining to birth." Because issues of birth, pregnancy, and sexuality are dictated by religious belief, attempting to legislate these matters is tantamount to imposing religious belief by law. Instead of passing laws, Ebert argues that to increase social adherence to their moral beliefs, sincere religious believers should try to convert others to their religion. Although I agree with Ebert's politics, and I'm a strong supporter of the Separation of Church and State, his analysis is flawed because he implicitly leaves no mechanism for deciding moral values in a democracy.

It would be convenient if we could use objective, secular scientific reasoning to determine the correct moral values. However, the world does not appear to work that way. As I explore in more depth in my series on Meta-Ethical Subjective Relativism, science cannot establish moral laws in the same way it establishes physical laws. A physical law is, by definition, a statement that despite careful and focused and careful effort, we cannot observe any exception. If we do observe an exception to what we thought was a physical law, we do not conclude that a "miracle" happened; we must readjust our construction of physical law to permit the observation. However, the only interesting moral "laws" are those we do observe contraventions of; a moral law prohibiting killing (under specified circumstances) is useful only to the extent that people do actually kill. Since we cannot (or it is not useful to) "falsify" a moral law by observing an exception, we simply cannot apply the scientific method to determine moral law.

There have been other philosophical approaches to determining moral law, but, lacking scientific foundation, all of them suffer from the Universal Philosophical Refutation. Science can "privilege" hypotheses only because the universe itself appears to refuse to contradict the hypothesis, but when the universe does not speak to the conclusions, any premise can, with a little ingenuity, be abandoned or replaced by its opposite without contradiction. There is no objective way you can say, that it is morally wrong to kill a person (under specific circumstances). There is no objective way you can say, we ought to (somehow) maximize the "well-being" of society. There is no objective way you can say that we should do only what everyone always ought to do. I can simply deny it's wrong to kill a person, maximize utility, or be compelled by the categorical imperative, and although we might not like or respect each other, neither of us can find a contradiction in the other's reasoning.

A democracy fundamentally rejects the idea of objective moral law. Instead of "searching for the truth," about morality, we search for ways we can all live together. Some of those ways involve prohibiting or compelling behavior. Democracy is not a simple matter of always doing what the majority says; because we are not completely stupid, we can look at issues at varying levels of abstraction and generality. A majority of us can, for example, strongly disapprove of specific, concrete speech, such as racist or sexist speech, but still strongly approve generally and abstractly of freedom of speech, and we can decide to implement the general and abstract into law. Furthermore, we have learned to institutionalize certain democratic principles, such as the First Amendment, and making the process of changing those principles complicated and difficult. But at the end of the day everything in a democracy is up to the arbitrary preferences, specific and concrete or general and abstract, of the people. The people are sovereign; because the universe constrains only how we can act, not how we ought to act, there is no higher authority on how we ought to act than the preferences of the people.

Because democracy is based on implementing arbitrary preferences, there is no good way to distinguish arbitrary preferences from arbitrary religious preferences. This is precisely the distinction Ebert tries to draw. Religions have not become popular because they completely ignore our natural preferences. Religions forbid murder and theft not because wow! who'd'a thunk it until God said so, but because a religion that excused or required wanton murder and theft would not gain many adherents. Even so, people usually attach all their moral beliefs to God; just as they believe homosexuality is wrong because God says so, they also believe that murder is wrong because God says so. They are mistaken, of course, no God exists to say anything, but they are mistaken about the justification, not the preference. A secularist is simply more direct. As a secularist, I am tolerant of homosexuality simply because I don't have any preference about what people do with their genitals*; I am intolerant of murder because I strongly prefer that people don't go around killing each other (and I don't give a tinker's damn that I'm infringing on the liberty of people who do want to kill others). The difference is not in the kind of preference, only the justification (or lack thereof); because all preferences are arbitrary, it is incoherent to talk about correct or mistaken preferences; preferences are just brute facts. Thus, it does not make sense to distinguish between different kinds of preferences; all preferences have equal standing.

Rather than placing limitations on motives, since motives are essential preferential, the First Amendment places limitations on the purposes and effects of laws. Rather than making the government either supportive or hostile to religion, the establishment and free exercise clauses, the First Amendment makes the government indifferent to religion. Thus, any law that has a primary or exclusive purpose or effect of establishing or suppressing religion is illegitimate. Although it's not consistently applied, the Lemon Test expresses this doctrine. Even if some law might have a "religious" motivation, it is legitimate so long as its primary purpose and effect are secular. Thus, even if the prohibition of murder were religiously motivated, it has a secular purpose and effect of suppressing the killing of human beings. It is sufficient to limit the purpose and effect of laws without addressing their motivations.

I myself am, of course, a strong proponent of absolute reproductive rights of women. However, I think the "religious motivation" argument against laws that would infringe on women's reproductive rights is fundamentally flawed. Laws limiting reproductive rights have a clear secular purpose: laws restricting abortion and contraception aim to and would have the effect of promoting the creation of and protecting human zygotes and blastocysts. Whether these are good secular purposes is a matter of preference (or many preferences, at different levels of generality and abstraction), but they are clearly secular: they address physical, concrete things about which we can have scientific knowledge. The secular/religious distinction does not by itself address reproductive rights.

Ebert does, however, imply a useful moral distinction. Rather than the distinction between religious and secular morality, we can draw a distinction between social and individual morality. Social morality concerns behavior that has a direct effect on others: killing people, hitting them on the head, taking their stuff, polluting their air and water, denying them employment, housing, or economic activity, etc. Even though people might have preferences as strong as they have concerning social morality, individual morality concerns behavior that does not have a direct effect on others: consensual sexual activity*, masturbation, diet, health care choices, assisted suicide/euthanasia of the terminally ill**, and similar activities. Religion, one's preferences about what to believe about God, is perhaps the most obvious form of private morality; as Jefferson says, religion (or lack thereof) "neither picks my pocket nor breaks my leg." By itself, religion has a purely individual effect.I t it tempting, therefore, to locate what are essentially privacy rights in the First Amendment. But that approach ignores most of Supreme Court jurisprudence. Privacy is a right, and therefore any act that affects no one but those who consent is usually considered private. But privacy rights have been located by the Supreme Court, not in the establishment and free exercise clauses of the First Amendment, but in the concept of substantive due process, a consequence of the due process clause of the Fourteenth Amendment.

*that does not have a direct, substantial impact on the transmission of infectious disease.
**with appropriate protection for the poor and mentally ill.

The issue over contraception and abortion rights is important, but the argument from the establishment clause is a bad argument. It is impossible in principle and actively contrary to democracy to try to distinguish between certain kinds of arbitrary preferences. Because they involve tangible, material entities and activities, not immaterial, invisible entities such as gods and souls, contraception and abortion are, whether we like it or not, secular matters. The best constitutional arguments, indeed the ones actually made by the Supreme Court in Griswald, Roe and others, are found in substantive due process. We must, in a democracy, let people argue (and vote) for any legitimate law, regardless of their individual motivation. If we do not, then we subvert democracy by making some process sovereign over the will of the people, and, more dangerously, unacceptably privilege those individuals who implement that process.

Trust and security

Liars and Outliers: The Big Idea:

My big idea is a big question. Every cooperative system contains parasites. How do we ensure that society's parasites don't destroy society's systems?

It's all about trust, really. Not the intimate trust we have in our close friends and relatives, but the more impersonal trust we have in the various people and systems we interact with in society. ... [But] systems contain parasites. Most people are naturally trustworthy, but some are not. ...

My central metaphor is the Prisoner's Dilemma, which nicely exposes the tension between group interest and self-interest. And the dilemma even gives us a terminology to use: cooperators act in the group interest, and defectors act in their own selfish interest, to the detriment of the group. Too many defectors, and everyone suffers -- often catastrophically. ...

Also -- and this is the final kicker -- not all defectors are bad. If you think about the notions of cooperating and defecting, they're defined in terms of the societal norm. Cooperators are people who follow the formal or informal rules of society. Defectors are people who, for whatever reason, break the rules. That definition says nothing about the absolute morality of the society or its rules. When society is in the wrong, it's defectors who are in the vanguard for change. So it was defectors who helped escaped slaves in the antebellum American South. It's defectors who are agitating to overthrow repressive regimes in the Middle East. And it's defectors who are fueling the Occupy Wall Street movement. Without defectors, society stagnates.

We simultaneously need more societal pressure to deal with the effects of technology, and less societal pressure to ensure an open, free, and evolving society. This is our big challenge for the coming decade.

Back in the U.S.S.R.

A while ago I got a DMCA takedown notice for my post The Stupid! It Burns! (nit-picking edition). I filed a counter-claim asserting that the post complies with fair use restrictions and is not in violation of copyright laws. Apparently the anonymous complainant has decided not to file an actual court claim, and the post has been restored.

I will absolutely not tolerate harassment. Keep in mind that my ex-wife (whom I'm good friends with) is a law student, and she's hooked up with a lot of civil rights lawyers. Fuck with me at your peril.

The Stupid! It Burns! (appellate edition)

In her article Court Rules to Protect N.C. Professor's Right to Religious Speech (via Curious Presbyterian), Stephanie Samuel of the Christian Post reports that "The Fourth Circuit Court of Appeals ruled on Wednesday that a North Carolina university’s decision to deny a professor a promotion based on religious and political commentary – inspired by his conversion to Christianity from atheism – is unconstitutional." Samuel goes on to say that "A three-member panel ruled that University of North Carolina–Wilmington professor Mike Adams’ political activities constitutes protected, private speech."

We can read the Fourth Circuit's opinion at Adams v. Trustees of UNCW, No. 10-1413.

Update: Let me briefly summarize the Fourth Circuit's ruling.

First, neither the district nor the appellate court found that UNCW actually discriminated against Adams. The district court held that based on the evidence the plaintiff, Adams, presented to the court, it was not possible for Adams to win at trial on the basis of religious discrimination or disparate treatment. They therefore granted summary judgment in favor of the defendants, UNCW. The Fourth Circuit concurred: Adams simply did not have a case.

The district court held that Adams' speech was not protected, and therefore there was no basis for him to allege discrimination or retaliation based on the content of protected speech. The Fourth Circuit held that this decision was in error: Adams' speech was indeed protected. That is the sole extent of their ruling.

The district court, however, did not address whether or not that now-protected speech influenced UNCW's decision to deny Adams' promotion to full professor. The district court did not address whether UNCW's interests outweighed Adams' free speech interests. As the district court did not address these issues, the Fourth Circuit could not consider them: these questions are matters of legal fact, which an appellate court cannot determine.

The conclusion that Samuel draws, that the Fourth Circuit declared the UNCW's action unconstitutional, cannot honestly and logically be drawn from content the actual decision.

end of update

It is extremely important to understand first that the Fourth Circuit is reviewing a summary judgment of the district court. "A summary judgment is a determination made by a court without a full trial." Thus the Fourth Circuit is not considering the actual outcome of the case, but rather reviewing the district court's decision to deny a trial. Accordingly, the Fourth Circuit says,

Summary judgment is only appropriate if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. We construe the evidence in the light most favorable to Adams, the party opposing the Defendants’ summary judgment motion, and draw all reasonable inferences in his favor (11) (quotations and citations omitted).

The Fourth Circuit is not deciding whether or not Adams was discriminated against, but deciding whether the district court was correct in concluding that Adams could not possibly have been discriminated against.

The Fourth Circuit upholds the district court's summary judgment that Adams was not discriminated against on the basis of his religion:

Having reviewed the record in the light most favorable to Adams, we agree with the district court that he failed to set forth direct evidence of religious discrimination. ... We also conclude the district court properly held that Adams failed to satisfy his burden for proving discrimination using the burden-shifting analysis of McDonnell Douglas. ... Accordingly, we affirm the district court’s grant of summary judgment to the Defendants on Adams’ Title VII claim (14, 17).

The Fourth Circuit also upheld the district court's summary judgment that Adams was not denied equal protection:

Having reviewed the record, we agree with the district court’s conclusion that Adams’ evidence creates no issue of disputed fact that the Defendants’ decision to deny his promotion was the result of intentional or purposeful discrimination based on his religious beliefs, or that he was treated differently from others with whom he was similarly situated. ... Accordingly, the district court did not err in granting the Defendants’ motion for summary judgment on this claim (28-29).

The sole remaining issue is Adams' claims of First Amendment discrimination. The district court held that because Adams introduced his speech in his application for full professorship, it ipso facto became unprotected, "official" speech (19). Furthermore, the district court employed Garcetti v. Ceballos to make this determination. The Fourth Circuit, however, determined that the district court "misread Garcetti... The district court cited no precedent for this determination, that protected speech can lose its First Amendment protected status based on a later reading of that speech." The Fourth Circuit also observes that the "clear language" of Garcetti makes suspect its applicability to academia (19). Essentially, the Fourth Circuit held that the district court's summary judgment for the defendants was made for the wrong reason, and they remanded this issue back to the district court.

A plaintiff making a First Amendment discrimination must satisfy the three prongs of the McVey test. As quoted by the Fourth Circuit, the court must determine

(1) whether the public employee was speaking as a citizen upon a matter of public concern or as an employee about a matter of personal interest; (2) whether the employee’s interest in speaking upon the matter of public concern outweighed the government’s interest in providing effective and efficient services to the public; and (3) whether the employee’s speech was a substantial factor in the employee’s [adverse employment] decision (18).

Since the Fourth Circuit observes that the district court considered only the first element, the Fourth Circuit likewise has ruled on only this element (19). Neither the district court nor the Fourth Circuit rule on the second and third prongs.

The Fourth Circuit's opinion is extremely narrow: holds only that that speech protected by the First Amendment does not become unprotected merely because the speaker references that speech in an official context (21). As the Fourth Circuit observes, "The Defendants were not precluded from examining the materials for a permissible purpose using lawful criteria. At the same time, their review of those materials can be examined for an impermissible discriminatory use." Note the Fourth Circuit's language here: the review of materials can be examined. The Fourth Circuit does not itself actually actually examine UNCW's review of the materials; it merely directs the district court to do so, rather than simply holding that the speech was unprotected.

I agree with the Fourth Circuit's opinion, and I think it is important to uphold free speech in this manner. There are indeed permissible and impermissible ways to officially examine the content of protected speech. UNCW may

consider [Adams' protected speech] not according to the content qua speech, but as factoring into the sweeping requirements of scholarship and service necessary to support his promotion to full professor.

Clearly the district court should find Adams speech meets the first prong of the McVey test (The Fourth Circuit observes that UNCW admits that the speech was protected when first uttered (20)) and examine the other two prongs.

But because the district court did not examine the other two prongs of the McVey test, it stretches credulity for Samuel to consider this decision a "big win" for Adams. We cannot infer that UNCW moved to hold Adams' speech unprotected because they would have lost had it been held protected. Cases at law are not wide-ranging academic discussions aimed at finding the deepest truths; a wise judge wants to decide the case on the narrowest grounds possible, and a wise lawyer does not open wider issues unless the narrower issues fail to support her case. Indeed because the district court found no reasonable case for religious discrimination, it seems likely that it will come to the same conclusion when it examines the First Amendment case in more detail, and will grant UNCW summary judgment on broader grounds.

If it stretches the bounds of credulity for Samuel to call this decision a "big win" for Adams, it breaks those bounds to conclude, "The Fourth Circuit Court of Appeals ruled on Wednesday that [UNCW's] decision to deny a professor a promotion based on religious and political commentary... is unconstitutional." The Fourth Circuit made no such ruling, and the ruling that it did make does not in any way draw any conclusions whatsoever about UNCW's decision to deny Adams' promotion. We cannot consider this statement an actual lie — Samuel accurately describes the the actual ruling — and we must consider the lede to be an inference. But this inference is so divorced from the actual content of the ruling that we must conclude that Samuel has not only failed to bend over backwards to avoid fooling herself, but that she has bent over backwards to try to fool herself and her audience. If not an actual lie, it is such an egregiously unsupported conclusion that we must consider it at best a grossly negligent disregard for intellectual integrity and at worst intellectual dishonesty.

Prison Economics Help Drive Ariz. Immigration Law

A reader sends me this provocative link: Prison Economics Help Drive Ariz. Immigration Law

Help!

I need some help. I really enjoyed this conversation between Justice Breyer and Justice Scalia on how to judge, their philosophies on how to interpret statutes and the Constitution. Naturally, as I'm of a more liberal bent, as well as being on the flexible and pragmatic side, I find Justice Breyer's philosophy more compelling. But Justice Scalia has some interesting things to say as well.

In fact, I enjoyed this debate so much I want to write a paper on it for my political science class. To do so, however, I'd like to have a complete transcript of the conversation. So far, I've completed the first three substantive chapters — I've skipped the Introductions chapter, and completed transcribing Holmes or Hand, Conflicting Ethics and Constraining Personal Views — and I'm working on chapter 5, Purpose.

It would be of tremendous value to me if anyone would help me transcribe the program. Please note who is speaking, and throw in some time tags, so readers can easily find the actual conversation in the video.

I'll offer the completed transcription first to the Federalist Society for inclusion on the website; if they permit it, I'll publish it here for strictly noncommercial use. I'll also email the complete transcript to each person who helps.

If you'd like to help, reserve a chapter in the comments here, transcribe it and mail your transcription to me at lrhamelin (at) gmail (dot) com or post it here in the comments. If you'd like individual credit, please let me know in the email whether and how you'd like credit. I'll also generically credit my readers.

Update 11/1/10: Some progress!

Chapter Status

01: Introduction: skipped/available
02: Holmes or Hand: complete
03: Conflicting Ethics: complete
04: Constraining Personal Views: complete
05: Purpose: complete
06: A Living Constitution: in progress: Larry
07: Conflicting Text of the Constitution
08: History
09: Active Liberty
10: School Voucher Case
11: Q
12: Q1 - Intent of Founders
13: Q2 - Pragmatism: in progress
14: Q3 - Activist Judges: complete
15: Q4 - Supreme Court Criticism: complete
16: Q5 - More Unanimous Decisions: complete
17: Q6 - Boldness: complete
18: Q7 - Morrison v. Olsen: complete
19: Q8 - A New Justice Makes a New Court: complete

On law, part 2

Commenter Mr Aversion alleges that the sorts of things that laws proscribe are relatively uncomplicated: In response to my comment that

It's desirable to use formal, objective criteria for determining when we do indeed impose actual coercion on people, and those formal objective criteria need a formal structure to be even a little better than, "kill or imprison everyone we don't like on a particular day."

he replies

I don't really get this. It's not as if the undesirable things are mysterious, difficult to define, or constantly changing.

In present day society what we proscribe (and compel) might not be particularly "mysterious," but they do seem complicated to define (and difficult to learn), especially in edge cases. One has only to look at the text of statutes and case law, which far exceeds the complexity (and sometimes opacity) of even the most sophisticated large-scale information technology documentation.

He continues:

There is a small handful of socially unacceptable behaviours that are common amongst all people - so common in fact that in most modern legal systems, statutes about them derive from what is called 'common law'.

Mr Aversion incorrectly references what appears to be folk etymology regarding Common Law: Common Law is so named not because some small set of principles are common to all people. Common law is, rather, law developed directly through the decision of judges rather than through statute, legislation or royal degree. Common Law is of course written down, and it is the interpretation of what is specifically written down that determines its future application. Its use follows from "the principle that it is unfair to treat similar facts differently on different occasions."

The term originated in 12th century England to distinguish the Court of Common Pleas from the Court of King's Bench, to decide disputes between commoners, i.e. disputes in which the King had no interest. The "commonality" also refers to commonality between English jurisdictions in the 12th and subsequent centuries. Indeed, Common Law is a specifically English cultural construct, and in the West is found predominantly only in England and its former colonies (other European cultures and their former colonies typically use Civil Law, where precedent has much less weight relative to statute). It's worth noting that sharia (Islamic law) uses a general common law structure, but bears little relationship to English Common Law in philosophy, content and application.

Murder, theft, assault, etc. Most people know these things are undesirable and most people don't do them. As I said, I am not convinced that sufficiently many people are deterred by laws, to justify the existence of the cumbersome legal framework.

I first have to be a nitpicking pedant: people don't strictly speaking know anything about this subject, they have desires and preferences. We can only know what preferences people actually have. Murder isn't objectively undesirable; people rather do not in fact desire being killed. And murder is unlawful killing; theft is unlawful appropriation of property; assault is unlawful violence. Strictly speaking the terms are meaningless or vacuous without a law.

Nitpicking aside, I think the underlying premise first misses an important point. Mr Aversion appears to imply that a certain small set of principles regarding acceptable and unacceptable behaviors are generally held in common by human beings, and this common knowledge is sufficient for social regulation. This view, however, misses the point in that there's a lot of other stuff, stuff that is not held in common, that people also tend to coerce each other around. One important function of law (perhaps honored more in the breach than the observance) is to rule out what's not common by explicitly stating what is common.

Secondly, the underlying premise actually appears to be false. Our attitudes and preferences about what specifically constitutes "justified" and "unjustified" killing, appropriation of property, violence, etc. varies considerably across cultures and within cultures across time. About the only think we can find in common is that different cultures at different times make some distinctions, but there's no common content of those distinctions.

Your argument would make sense if there was a risk of many people forgetting socially normative behaviour, or for socially normative behaviour to be constantly and radically shifting, but in respect of these basic interactions among humans, the rules are well-established and require no elaboration.

The issue is not people "forgetting" socially normative behavior, the issue is that different people's normative conceptions differ. The issue is less that normative behavior is "constantly and radically shifting", but rather that it does shift, and there's value in recording those shifts. (There are also variations in time that do seem worth dampening to some degree.) And the rules are well-established only by the body of recorded law, and apparently do require considerable elaboration.

Fundamentally Mr Aversion attempts here to undermine the pragmatic value of law. Since he makes this attempt, it's worth rebutting, and I think his argument fails. This is not the only argument he makes; his particular argument is not, of course, the only possible (or even only known) specific argument undermining law; and there are other approaches. But the best we can do is consider each case as it comes up, and try as best we can to synthesize all the various cases into a coherent understanding of political philosophy and social psychology.

On law, an interlude

Let me lay out briefly the case I want to make, and, perhaps more importantly, the cases I don't want to make.

Are laws and governments the only way to organize a society? Are they the only way to organize a complex, technological society? I don't know for sure, but the general principle that all human beings have explored only a minuscule fraction of the space of all plausible and pragmatically useful social systems strongly suggests that no, I do not believe, and would not argue that laws and governments are the only way to organize society.

Are laws and governments the best way to organize a society? Again, I don't believe so. Laws and governments evolved, and judging from biology, evolution rarely produces optimality in senses other than the most local and immediately concrete. Even to the extent that we can even define global and abstract optimality, evolution does not seem to produce it.

Given that we have laws and governments right now, and appear deeply embedded in our social constructions, must we therefore consider only futures that contain laws and governments? I don't believe it is necessarily true, although I do believe that changing deeply embedded structures is not only very difficult, it is extremely risky and uncertain. It seems to me to be a lot easier and safer to change the content, structure, formation and maintenance of laws and governments than it would be to abandon them entirely. Of course, ease and safety are by no means our only considerations when contemplating, advocating and implementing social change.

I think the question I'm most interested in is: are laws and governments in general "really really bad", even pragmatically*? Do they, as Mr Aversion seems to suggest, serve no good purpose whatsoever? Are they simply — much as I hold religion to be — at best irrelevant and at worst a blight on the human condition? Or do they, rather, serve useful purposes? If so, how can we ensure those useful purposes are preserved under social changes? Does it make more sense to preserve and reform the specific forms of these social constructions, or abandon in favor of something that can provide superior benefits with lesser costs?

*I of course do not hold that intrinsic goodness or badness is even meaningful.

I am not interested at all about philosophizing about the "ideal" society. Its relevance (why should anyone care what I consider to be the ideal society), its presumptuousness (I think a lot of people would resent and object to me unilaterally imposing my version of an ideal society on the basis of nothing more than its specifically unilateral imposition), and its impracticality, I doesn't seem even meaningful to talk about an ideal society. I can talk only about what I like and don't like, and how I propose implementing my preferences, and try to appeal to or somehow change my readers' common preferences and knowledge.

Update: This point deserves more than parenthetical mention: Do I think that just because a social construction exists and is deeply embedded in our social consciousness that it is therefore beneficial? Definitely not. As a "militant" anti-religious atheist, I am strongly convinced that religion, although deeply embedded in our society, is almost completely without benefit and really can be abandoned, and I do really want to abandon it, despite the risks and uncertainty of doing so. I'm definitely not trying to make the argument that laws and governments are here to stay and it is therefore futile to even evaluate their merits and drawbacks. To come to a rational judgment about laws and governments, we have to evaluate the content of these ideas against our desires and preferences and the way the world physically works.

On law, part 1

Commenter Mr Aversion argues against the benefits of law:

Irrespective of the existence of laws or governments, they do them. My contention is that people who intend to rape, murder, steal and so on, are undeterred by the existence of laws or governments. Laws and governments simply add a wholly redundant yet costly and complicated overlay without providing any value in this instance. My belief is that the vast majority of people will not ever commit these crimes, whether government exists or not; and those who will commit these crimes, will do so, whether government exists or not.

There's a definite, material claim here: Laws and governments are "wholly redundant": laws themselves do not effect beneficial changes in people's behavior. The apparent causal relationship between laws and beneficial changes in behavior is, presumably, that both laws and beneficial changes are the effects of a common cause. (Indeed Mr Aversion notes that in a substantive sense, "[W]e already have an anarchist society and that no other society can, in fact, exist." The common "anarchist" cause of both laws and beneficial behavior is presumably operative).

My initial rebuttal does not directly contradict this view:

Since laws against rape specifically are newer than other laws, we can make scientific comparisons. And the data are unequivocal: making and strengthening laws against rape reduce the incidence of rape, and not just by incarcerating the rapists. Societies where rape is legally condemned have less rape than societies where rape is legally permitted.

There are, of course, a lot of other factors. But the scientific truth is unambiguous that without specifically coercive prohibition, those other factors are substantially weakened.

Correlation does not prove direct causation*, but it does suggest direct causation as a plausible hypothesis. Furthermore, indirect or common causation is more complex that direct causation, so positive evidence is necessary to substantiate these alternative hypotheses.

*"Correlation does not prove causation" is one of the most misunderstood and misused aphorisms in the philosophical examination of scientific epistemology.

We of course want to see a mechanism linking cause and effect; in the case of laws, however, the mechanism is immediately apparent: the police and prisons coerce people, and (with a lot of objectionable exceptions) seem to more-or-less use actual laws as a guide to their behavior.

Let us take a slight detour, though, and ask: what precisely is a "law"? In this context a law has the following essential characteristics:

1. A law is a social construct. It is an idea in people's heads, directly or indirectly, and the idea has a causal effect* on people's behavior by virtue of it being in their heads.
   
2. A law's primary effect is on coercive behavior, either to permit or prohibit specific kinds of coercion under specific circumstances. Typically (but not necessarily) some determinably specific and bounded body of law exclusively affects specific kinds of coercive behavior, usually overtly violent coercion.
   
3. A law exists and is propagated literally (typically by being written down, but in some archaic cases memorized literally). A law has precise, objectively determinable, content that is preserved across space and time.
   
4. A law is applied neutrally and objectively: in theory completely neutrally; in practice substantially and determinably as neutrally and objectively as we can practically manage.
   

*It's not essential or necessarily the case that the law has some particular effect or kind of effect, just that it has some effect, perhaps only the negative effects Mr Aversion alludes to.

These criteria are definitional, not normative. Something that meets these criteria is a law; just meeting these criteria does not establish if something is a good law, or that laws, by virtue of meeting these criteria, are themselves good. These criteria also differentiate a specific kind of social construction from colloquial or idiomatic uses of "law", such as, "The King's word is law," or the common discussion board standard, "Don't be a jerk." It's also clear that what we formally call "law" in most Western countries does indeed fulfill these criteria: We do have socially efficacious ideas, ideas that regulate the coercive behavior of the police, ideas that are written down and propagated literally, and we make an substantial and determinable effort (quite a lot of effort, actually) to apply these ideas neutrally and objectively.

Mr Aversion seems to propose or imply additional criteria, saying, "[I]f you have ever valued your own judgement over that of a lawmaker, you are an anarchist." Laws are apparently the arbitrary judgment of a specific person or group ("lawmakers"), and apparently must establish some sense or meaning of right or good.

(The alternative implication is that all societies are anarchistic, being composed entirely of anarchists ("every single person on Earth is an anarchist"); one supposes that as Mr Aversion self-identifies as an anarchist, he therefore not only recognizes that existing societies and nothing else are what actually exist and are therefore in some sense inevitable, but also meet with his positive approval. This interpretation does not seem consistent with the overall tone and content of his remarks.)

There are two problems with these additional criteria. First of all, they're unnecessary. Laws that are established by more-or-less common consent, rather than the arbitrary judgment of some "privileged group" would seem to be perfectly good laws. Furthermore, Mr Aversion (in email, reproduced in comments) seems to object specifically to the "written down" criteria, saying:

I think it is disingenuous to suggest that because something is written down on a piece of paper, it affects societal behaviour; disingenuous to suggest that the existence of rape laws reduces rape. Rape laws come into existence in societies tending towards better rights for women. The laws have no effect on rape statistics whatsoever; the laws are a consequence of the tendency not to rape in broader society. This is precisely my point. The laws contribute nothing other than a burdensome (and lucrative for some) overlay.

He is not objecting here to laws against rape because they were imposed by the arbitrary judgment of a lawmaker or because we value our judgment over these supposed lawmakers. He rather seems to imply that that the fact that they are "written down on a piece of paper... contribute[s] nothing other than a burdensome (and lucrative for some) overlay."

The specific benefits of writing down laws seems easily apparent: writing down a law and restricting at least certain kinds of coercion (overt violence) to only what has been written down provides consistency and especially predictability. I can know, by examining the statute, precisely what does or does not constitute rape; more precisely I know what behavior will and will not subject me to violent coercion. It seems that just this benefit alone is sufficient to justify the formality of actually writing down laws and enforcing them as written.

(That's all for now; I'll consider other elements of Mr Aversion's argument in further posts.)

The philosophy of law

Daniel J. Becker writes a philosophical analysis of Citizens United. It's complicated and a little on the tl;dr side, but the thrust of his argument seems to be that the Constitution and its implementation and interpretation exists to serve We the People; any decision or action that does not or is not intended to serve The People is therefore wrong. (Becker uses the term "error", but I think this term is not precisely correct. "Error" more strongly indicates contravention of objective truth; hence I prefer the more explicitly ethical term "wrong".)

Becker is responding to Glenn Greenwald's defense of Citizens United. Greenwald asserts that "illegal or unconstitutional actions... can't be justified because of the allegedly good results they produce,"
and concludes that "the 'rule of law' means we faithfully apply it in ways that produce outcomes we like and outcomes we don't like." Greenwald makes some interesting and persuasive points directly in defense of the Supreme Court's decision, but I think his philosophical definition of the rule of law is too narrow and superficial. On the other hand, I think Becker's interpretation is far too broad.

Becker correctly asserts that the philosophical foundation of our government (at least on paper) rests on the interests and will of The People. But what are those interests? The People are, after all, actual people, who individually do nothing but act in their own interests every second of every day. Why do we need a Constitution at all? Why do we need a government? Why do we need law to effect that which individual people naturally and continuously effect, indeed that which they cannot help but effect? The obvious answer is that the interests of The People can in some sense be different from the interests of individual people. The existence of Constitutions, governments and laws presupposes a collective interest somehow distinguishable from individuals' interests. It's a fairly straightforward that the collective interest does not exist independently of individuals' interests: a collective is not a real entity existing independently of individuals; to assign a collective an independently real status is to commit a patent fallacy of reification.

On the other hand, protecting the interests of minorities is one of the primary purposes and effects of constitutions, governments and statutes, a purpose and effect that people seem to find enormously valuable. We must therefore be very suspicious of constructions of collective interest as simplistic statistical property of individuals' interests, such as a majority.

There are three more-or-less separate reasons to have a rule of law, distinct from individuals acting their own individual interest. The first is simply that we consolidate and delegate the use of violent coercion to a class of professionals (e.g. the police and the government). We want to make it more difficult for these people to use their special position to privilege their own immediate interests over the interests of the rest of us. We therefore impose the principle on these experts that they must act according to general, universally applicable principles rather than purely on a case-by-case basis. This mechanism is of course imperfect, but it does by itself prevent the most egregious "abuses" of power.

More importantly, and more philosophically, individuals have desires about abstractions, desires that can conflict with concrete instances of those abstractions. We can, for example, desire freedom of speech in the abstract while also desiring that certain people in particular (e.g. Nazis, pedophiles, Creationists) should not speak. In these cases, the question is not whether or not to use a simple statistical construction of the collective interest, but rather to weigh simple statistical constructions about different things. We can say that even though a majority of people would like Nazis to shut up, the majority would also like freedom of speech, and the majority's desire for the abstract principle is stronger than the their dislike of some concrete instance.

But there's an even deeper reason. Astute readers of my blog will know that the concept of collective interest will sooner or later be followed by a discussion of the Prisoner's Dilemma and its importance in ethical, legal and political philosophy. The Prisoner's Dilemma concisely captures the apparent paradox that there are states of affairs that are in everyone's interest that are at the same time in no one individual's interest. In other words, there are circumstances where, unlike the abstraction/concrete distinction above, there is no level at all where a simple statistical evaluation of individuals interests can give us the answer we "want" to achieve. It is not that the majority of people would prefer cooperation: If we assume that every person is rational, and that a rational person will always make the decision that maximizes his or her interests, then everyone ought to prefer to defect. Since everyone "rationally" prefers to defect, we always end up with mutual defection. But mutual cooperation is better for everyone than mutual defection.

The paradox is only apparent, because we're dealing with two different senses of "interest". In one sense, interest is captured in game theory as simple parameters: numbers in a decision matrix. In another sense, interest is the decision that obtains the largest of those numbers. These two senses are not independent — we can't talk about the best decision independently of the numbers in the matrix — but likewise they are different... and, in the case of the Prisoner's Dilemma, qualitatively different.

So Greenwald is too narrow. Yes, it's an effect of the rule of law that there will sometimes be bad outcomes, and that some law can produce a bad outcome is not a sufficient argument to contravene or invalidate a law. But Greenwald goes farther than that, "whether [illegal or unconstitutional] actions produce good results is really not germane," and that "the Court's decision will produce "bad results" is not really an argument." He doesn't say the argument is not sufficient, he says it's not relevant, not even an argument.

But it's never been the exclusive or even primary job of the Supreme Court to simply make sure that legislation is consistent with the Constitution. Even if we wanted that them to hew strictly to that task, the US Constitution is not sufficiently specific to allow them to do that, in the same sense that it's the job of the federal courts to ensure that the actions of individuals both inside and outside the government are consistent with the very specific and detailed federal statutes.

Rather, it's one of the most important jobs of the Supreme Court to interpret the Constitution in — as best as they can determine, which is often deficient, but that's another story — the best interest of The People. An analysis of what the likely good and bad effects of one plausible interpretation over another is precisely to the point, germane, relevant and the not only is an argument, it's the only kind of relevant argument. This is not only both the power and duty of the Supreme Court but also the power and duty of every court, and the reason why we need human judges, not just robots.

Just as Greenwald's argument is too narrow, Becker's argument is too broad. Yes, the Supreme Court can and should operate not just as a narrow interpreter of law, but also as guardians of the public interest, especially in recondite circumstances where the public interest cannot be determined by simple and direct measures. But it is not at all obvious that the Supreme Court has failed to act in the public interest. How should they determine it? One way is precisely what Greenwald recommends: By taking the literal meaning of the Constitution as what The People themselves have declared to be in our interests.