Summer Grades

Some of the summer session grades are posted. Looks like I share the highest grade in Advanced Tort Law with one other person. Not bad for a confusing class with an annoying professor.

No Excuses

Remember Private Green? Here’s a chilling tale from the Washington Post, an article by Andrew Tilghman:

Over a mess-tent dinner of turkey cutlets, the bony-faced 21-year-old private from West Texas looked right at me as he talked about killing Iraqis with casual indifference. It was February, and we were at his small patrol base about 20 miles south of Baghdad. “The truth is, it wasn’t all I thought it was cracked up to be. I mean, I thought killing somebody would be this life-changing experience. And then I did it, and I was like, ‘All right, whatever.’”

He shrugged.

“I shot a guy who wouldn’t stop when we were out at a traffic checkpoint and it was like nothing,” he went on. “Over here, killing people is like squashing an ant. I mean, you kill somebody and it’s like ‘All right, let’s go get some pizza.’”

Many people no doubt think Private Green was just one of those “bad apples,” that most soldiers don’t share his sentiments. But I’m skeptical. I would bet that many soldiers doshare his sentiments, but that most of them simply would not act out in the ways he allegedly did. Maybe I’m wrong, but I’m guessing that we’ve got thousands of people over in Iraq, many of whom, deep down, are just cynics with guns.

Later, the article quotes Green as saying:

“See, this war is different from all the ones that our fathers and grandfathers fought. Those wars were for something. This war is for nothing.”

Well, soldier, that’s just too bad. Being stuck in a war for nothing does not excuse you for treating people like nothing. So I’m glad to see that Tilghman wrote at the end of his article, “But no level of combat stress is an excuse for the kind of brutal acts Green allegedly committed.” Indeed. But maybe if more people back here at home had any idea what combat stress is like, we would have a very different political landscape. It’s not like I have any idea, though.

Law in the Maw

English teacher Jim at Decorabilia has taken to reading and commenting on judicial opinions and quoting statutes. Has Jim caught the law bug? Is this perhaps the harbinger of a second career?

Relativism, Moral and Legal

Mark at Pseudo-Polymath is troubled by some comments I made. He writes, “But Mr Wall (hopefully) isn’t a real life moral relativist I suspect . . . but he is it seems a self professed ‘legal-relativist’.” He then quotes material I have written in comments as part of a different discussion.

But he is skipping other comments** that I made, to the effect that I do pass personal moral judgment against the laws of other cultures. But the practical matter of inducing change outside the scope of one’s own legal system presents obstacles that, historically, have only been surmounted by war.

The question of whether “law should be a passive player in the practice and ethics of a culture” is not a simple one to answer, in my opinion. Theoretically, there are three ways to conceive of the causal relationship between law and morality:

1. Morality causes law.
2. Law causes morality.
3. The two feed back into each other.

In reality, it is almost certainly the third. But philosophers will still spend most of their time considering the first two; which is ideally better?

For instance, there is the famous and oft-quoted line from Justice Holmes that “[t]he life of the law has not been logic; it has been experience.” Holmes took a pragmatic position that the law should reflect the morality of the people, such that as their society changes, the law should change with it. Just shooting from the hip, I would say that his view is the predominant one in the legal community; most lawyers and judges would probably say that morality, though usually indirectly, causes law, for the most part. That is what one tends to see in judicial opinions and the public rationale of legislators, at least.

Whether that pragmatic view makes law “a passive player,” as Mark suggests, is another matter. In the world of judge-made law (sometimes called the common law), there is a constant balancing act between upholding precedent and following the changing needs and desires of society. Lawyers and scholars of law expend enormous amounts of time researching and spill much ink in deciding whether any given precedent is about to crumble. Practically speaking, the purpose of precedent is to provide stability and predictability so that attorneys can offer sound advice to their clients (e.g., “Courts have held X, therefore your claim is on solid ground”). But there is always a gamble: will the court follow precedent when my client’s claim is brought, or will the facts of my client’s claim induce a new direction in the law?

On the legislative front, the tendency to follow the whims of the people is more blatant. Get enough money or enough people to have a legitimate interest group and you can co-opt the power of the legislature for your own needs. Laws are created that way all the time. (In fact, one might even argue that every law that flows from the legislature is the work of an interest group to some extent.)

So law certainly is not a passive player, but it tends to afford great deference to changing social mores. The problem of offensive laws in other jurisdictions is more difficult, though. What should we do when other states or other nations have laws we find offensive? In fact, there are other nations who find some laws of the United States offensive. For example, many Europeans find our use of capital punishment offensive. The question is not one of pure relativism — live and let live — but of the practical problems of enforcement, sovereignty, and the desire for peace. It is easy to say that we should not be legal relativists, that if we believe something is wrong in another nation that we do everything we can to set it right. But look at recent American foreign policy. We have used economic sanctions against Cuba to little avail. We have tried diplomatic solutions with North Korea to little avail. And everybody knows what is happening in Iraq. Trying to change the legal situation in other nations is a dicey game. We can be idealist-relativists, but practically, relativism is the way of life.

**Here, in my comment of July 26 at 6:45 PM, I wrote: “Do I think the hangings described in the article you linked are a good thing? No! Do I think they should be stopped? Yes! But how are you going to do it without either violating the time-honored principles of national sovereignty or denying the ancient superiority of material desire over moral righteousness — when given the choice between prosperity and morality, prosperity is going to win almost every time. That’s just human nature.”

More Moore

Remember Judge Roy Moore? He’s the guy who lost his job on the Alabama Supreme Court because he thought his job as an officer of the court required him to put God ahead of the Constitution. (Thereby joining the ranks of frustratingly belligerent Christians who are incapable of distinguishing between their roles as citizens between their roles as followers of a particular religion.)

Check out this interesting analysis of some of Moore’s comments in his new column at WorldNetDaily.

What Moore actually did was misunderstand and betray our Founding Fathers (Washington, Adams, Jefferson, Madison, Franklin, et al.) who never identified God in their public supplications as the God who revealed the Ten Commandments to Moses. They replaced the Biblical God with a generic “Nature’s God,” and the Ten Commandments, with the Ten Amendments of the Bill of Rights.

Read the rest. There are some nice bits about that “Judeo-Christian God” that Christians are always yammering about, too.

The No Truth Zone

See this excellent video on YouTube, in which Bill O’Reilly is exposed (again) as a hypocrite and a liar. Here, he is shown saying that the American Civil Liberties Union (ACLU) opposes all public displays of religion, but then later complaining about a case where the ACLU is defending Christians O’Reilly repeatedly calls “crazy people.”

Oh, the internet is a beautiful thing.

Rapist and Victim

So here is an interesting discussion of rape, which, like the ongoing discussion of species improvement science, is unfortunately afflicted with a complexity that does not lend itself to comfortable answers.

The problem comes down to the divergent perspectives of rapist and victim. On the one hand, most of us agree that a rapist can never use the appearance or conduct of a woman to justify rape. (There are no valid unequivocal signals that a person wants to have sex with a particular other person outside of the first person either (a) saying so or (b) becoming the aggressor.) But on the other hand, there is disagreement about whether a woman should ever consider her appearance or conduct in trying to avoid rape.

It would appear that the first proposition — a rapist can find no excuse in the appearance or conduct of the victim — should lead us to say that women should therefore not be exhorted to avoid particular appearances or conduct of the type that might offer the rapist an excuse; if the rapist has no excuse in the appearance or conduct of the victim, the victim should not bother to change her appearance or conduct in anticipation of a potential rape.

Thus, goes the argument, the conclusion may be run in reverse to reveal the hidden views of the person giving advice. Exhorting a potential victim to change her appearance or conduct in anticipation of a potential rape is an admission that the rapist can find an excuse in her appearance or conduct. Therefore, anyone who does exhort a potential victim to change her appearance or conduct (a) must believe that a failure to do so gives the rapist an excuse and (b) must then believe that the victim who fails to take the advice is also at fault.

However, that analysis strikes me as profoundly illogical because it posits a direct, unbending relationship between the perspective of the rapist and the perspective of the victim, such that either the rapist is without excuse and the victim should not care about her appearance and conduct in attempting to avoid being raped or the rapist may be excused and the victim should care about her appearance and conduct in attempting to avoid being raped. Or, more simply, women should only take precautions against rape where they believe the rapist may be excused by their failure to do so.

The argument continues: women only believe the rapist may be excused by their failure to take precautions because the society in which they live allegedly puts the onus for prevention on the good sense of women rather than on the restraint of men. That is, rape is prevented only by women exercising caution, not by men exercising restraint. However, that argument requires one to believe that women are naturally incautious and that men are naturally aggressive. Furthermore, the natural aggression of men is what induces the caution of women (according to the women), while the failure of caution by women is what justifies the aggression of men (to the men). Thus, in order to get along, men must restrain their natural aggression (apparently so women will not have to restrain it for them) while women must be allowed to throw off the shackles of caution.

To me, that is a bizarrely Manichaean view of men and women that requires a fundamental assertion of natural enmity between the sexes, making it all but impossible to achieve true equality. Perpetuating that view requires us to teach boys that they must restrain their natural aggression (without first checking to see that they are naturally aggressive). It is a negative method. A positive method would be more suitable. For instance, teaching all children, regardless of their sex, that all other people are worthy of equal treatment — without imposing assumptions about their allegedly natural states.

That positive approach would also inform the rapist-victim problem outlined above. Rather than imbuing the actors (the rapist and the victim) with assumed Manichaean roles, each of which induces, reinforces, and opposes the other (e.g., the rapist is seeking excuse in the conduct of the victim, while the victim is seeking a path to conduct unrestrained by the specter of rape) and points to no viable way out of the circle, treat the crime like any other.

First, lay the fault completely at the feet of the rapist. The problem with the rapist is not that he is a man or that he has mistakenly believed he had permission to have sex with the woman, based on whatever perception, but that he has committed a rape.

Second, as with any other crime, consider that there are varying levels of knowledge apprehended by the victim prior to the crime. In some cases, it will be a complete surprise, such that the victim has no knowledge of risk in order to take preventative action. In other cases, the victim will have a wealth of information providing knowledge of risk, such that preventative action may be taken. So it is possible that in some cases a potential rape victim may be able to take precautionary measures based on her specific knowledge of actual risks.

Can those precautionary measures be considered without a corresponding attribution of fault where the woman subsequently becomes a victim of rape? Certainly. There is no reason to suppose that a woman can never make any decisions that make her less likely to be victimized, but the failure to make those decisions does not then put her at fault for the act of the rapist.

My whole argument is pretty philosophical and only an incremental shift from the ideas to which I am responding, but I think we are better off in a society where we make these nuanced distinctions, rather than continuing in our tradition of partisan body blows, which does nothing but prop up opposing ideologies while failing to solve real problems.

Species Improvement through Science?

Check out the discussion that began as an argument that embryonic stem cell research should not be prohibited and has turned into a broad discussion of genetic engineering, abortion, and social control.

You can find some of it over at Pseudo-Polymath, here and here.

Another part can be found here at Res Ipsa Loquitur here.

And, if you’re really curious, the discussion really got started with my post here and Mark’s response here.

To sum up the broad strokes of the discussion, Mark thinks no good can come of scientific research and manipulation of human genetic material, while I think it is the greatest and highest purpose of science.

Not Just Parroting

So it turns out that parrots have intelligence roughly equivalent to a 5-year-old child but communication skills roughly equivalent to a 2-year-old child.

But Alex [the parrot] is no galah — when he does not want to do what is asked, he makes it known.

“He’ll generally perform with almost perfect accuracy for about the first maybe 12, 15 trials, and then he just does not want to do it . . . he’ll sit there and he’ll preen, or he’ll give me all the wrong answers in a row, which takes a lot of intelligence because he’s avoiding the one correct answer,” the Professor said.

But the best part is that this scientist’s research has been used to help autistic children. How’s that for a great intersection of humanity? On the one hand, we’re finding that a bird has an impressive level of intelligence, on par with a human child. On the other hand, we’re taking that knowledge to help human children who have a cognitive disability. It’s an odd triangle of intelligence between an adult human, a disabled human child, and an intelligent parrot. We’ll no doubt be seeing more of that in the future. I expect before long somebody will use genetic engineering to make more intelligent animals.

Abortion

Mark Olsen at Pseudo-Polymath wants me to provide him with “an argument for why abortion might be justified.” It looks like I’ll have to let him down, though.

An act can only be “justified” if you have already presumed that it ought not be done; justification would be for exceptions to that presumption. Thus, the only reason one would need to justify abortion is if one began with the presumption that it is wrong.

But I begin from a different presumption, which is that all possible acts are allowable unless reasons of public policy demand limitation. For instance, I would begin by presuming that killing other people is generally allowable, then impose limitations on that allowance based, for one thing, on the tendency to revenge and retribution and the accompanying social upheaval. Thus, when it comes to, say, killing enemies in combat or administering capital punishment, the question is not “How do we justify such killings?” but rather “Why are other killings disallowed?”

Similarly, with abortion, I begin by presuming that abortion is allowable, then ask whether limitations ought to be imposed for any reasons of public policy. Thus, the question is not “Why should abortion be allowed?” but “Why should abortion be restricted?” Or, to frame it in the terms of this discussion, the question is not “Why is abortion justified?” but “Why are limits on abortion justified?”

(As well, when it comes to using our embryos for scientific research, the question is not “Why should the destruction of embryos be allowed?” but “Why should the destruction of embryos be restricted?”)

So I am not interested in making an argument for why abortion might be justified. In my opinion, that problem is for a woman presented with the choice of aborting her pregnancy or not. Absent any other social considerations, should she be allowed to choose to abort her pregnancy? Yes. Are there reasons of public policy that justify limiting that choice? In my opinion, no.

Does every woman who chooses to abort her pregnancy need to justify that decision to herself? Probably, but that justification will be highly specific to her situation and beliefs. Since I am neither a woman nor the partner of a woman who is facing that decision, I can only try to imagine what I would do if either were the case.

Conduct is only wrongful within a social context; specific acts should only be prohibited where there is sufficient public interest in preventing such acts. While there may be overwhelming private interest for any given woman to reject the option of abortion, I am not convinced there is sufficient public interest in preventing abortion.