"no harm, no foul"
Wednesday, July 30, 2003
PHILOSOPHY OR PATHOLOGY: I’ve been wondering, after reading the first few pages of Brian Magee’s “Confessions of a Philosopher” to what extent philosophical problems are the inevitable product of reflection, or whether, instead, they are the product of a particular social/cultural climate (or even the product of taking a philosophy class). Magee seems to have been gripped by an early age by any number of classic problems of philosophy, while being entirely innocent of any formal philosophical training. He’s mesmerized, for example, by the question of whether the world has a beginning, or instead eternally stretches backward and forward in time (which is one of Kant’s “antinomies of pure reason”). And he actually passes out in chapel one time, after being impressed by the fact that he might not know anything outside of his own ideas.

I found this very troubling reading (in fact, I stopped reading the book). I, for one, have never been really taken by these problems, except in the context of a philosophy class – where even then, they appear as interesting puzzles, but lacking the sort of existential weight Magee apparently gave them. The really interesting philosophical problems are, to me, the moral ones, and I sometimes wonder whether Magee-type metaphysical worries really represent displaced anxieties about moral or social problems. A worry about whether one is in touch with the real world may be a symptom of a concern whether one’s friends are really true friends, or instead say bad things about you behind your back. You want to know if they are “really” your friends or merely “appear” to be your friends. But where’s the interest in whether one knows the “real” world or merely “how the world appears”? The same difficulties about coping with others remains, and these seem to be the difficulties worth worrying about. I find compelling metaphysical worries about how minds relate to minds, but not how minds relate to the world.

Sunday, July 27, 2003
SUNSTEIN ON MORAL HEURISTICS: I’ve just finished reading Cass Sunstein's short essay on “Moral Heuristics” (available on ssrn.com), and I’m torn. On the one hand, I think, in general, he’s got an interesting an even valid point: that the heuristics we use in everyday moral situations can in some cases seriously lead us astray. I think his point is especially well taken when he attacks the use of absurd hypotheticals in a lot of moral argument – we’re asked to imagine a far out, unlikely, scenario, and then to register our intuitions about it, and we’re supposed to trust that our intuitions will give us reliable, bankable answers in those cases. But this seems implausible: why suppose that intuitions that work in ordinary cases will be trustworthy in bizarre hypotheticals?

On the other hand, there’s a pervasive bias that runs through the piece, and that is the bias that cost benefit analysis is the standard for rational ethical thought, if not constitutive of it. The result of this is that any putative moral principles that yield outcomes that are not cost benefit rational, are deemed irrational – the consequence of moral heuristics gone astray. This is obviously a deeply controversial assumption. Take for example a case Sunstein considers under the heading “pointless punishment.” A jury, when asked to decide a punishment for a polluter, has to choose between the two options of between making a company pay to clean up its own waste and making the company pay the same amount to clean up the dangerous waste of another company (a company now no longer around). Juries, it turns out, choose the former punishment over the later. Sunstein writes of this choice, “How could this preference make sense? Why should a company be asked to engage in a course of action that costs the same but that does much less good? I believe that people are using a heuristic, essentially requiring people to correct their own wrongs, even in a case in which that heuristic leads to palpably inferior results.”

Here I think the moral heuristic approach to ethical argumentation has all the advantages of theft over honest toil. I mean, it’s one thing to give an argument against the principle that people should correct their own wrongs, and quite another to dismiss the principle on the grounds that it’s a “heuristic.” And what is the reason for treating it as a heuristic rather than a principle? As far as I can see, it is because it leads to palpably inferior results, results that won’t wash in a cost benefit analysis of the situation. But this just begs the question against those who would rely on the principle that one should right one’s own wrongs, and who believe this is a moral principle that “makes sense.” It’s sometimes the case that heeding a moral principle will lead to inferior results on a utilitarian calculus. But this isn’t an argument for ditching the principle.

I say it’s fine to be a pragmatist, utilitarian, whatever. But be up front about it, say why the principles people sometimes employ in their reasoning are irrational. Don’t simply presume rationality is cost benefit analysis, and then go on to condemn some principles on the basis that they are mere “heuristics” that are misfiring in this case, because leading to inferior results. There are more things in morality than results.

WHAT YOU NEED: I caught the end of a Bill Moyers interview with Leon Kass, where Moyers asked, “What is the thing that human beings most need?” Kass paused for a bit, and then answered, “I’d say there are three things.” What Kass said were the first two things I thought sensible and agreed with; my difference, or maybe my confusion, came with the third thing. Anyway, here are the first two.

(1) Deep love or friendship with another person, at least once in your life. Preferably for a long time.
(2) Meaningful work.

After this, Kass waited again, and it gave me enough time to think what I thought the third thing might be. What came to my mind was “an opportunity for self expression.” Of course, this might come in a loving relationship, or in one’s employment, but it seems distinct from them. They might not necessarily bring out what is uniquely you, what you alone can contribute, what being human means for you in particular, and the feeling that comes with that: I am living my own life and not anybody else’s. But Kass’ final thing was:

(3) A connection with something larger than oneself.

Now, this answer has a lot of intuitive resonance, but is it clear exactly what it means? The most obvious place filler for this would be a connection with God, who is literally (if he exists at all) larger than you. But the larger something could be a social cause, etc. There seems to be something about “larger than oneself” that brings one pretty quickly into the realm of the moral and the theological.

Compare Kass’ third thing with mine, and the comparison seems to come out in Kass’ favor – my answer “an opportunity for self-expression” seems, well, selfish. But the question wasn’t about what people ought to do, but what they need. People ought to think of others’ needs and tend to them. At the same time, I’m not sure people intrinsically need to do this sort of thing: they can have meaningful and deeply satisfying lives without them (they may be morally bankrupt lives, but I’m not sure about even this; it depends on what the content of our morality is).

I suppose I could try to make self-expression depend on one’s interactions with others, and so have some moral content intrinsically tied to it; but I don’t think this will go very far, because one may depend on others to be the person one uniquely is, but I don’t see the relationships that foster this sort of individuality being essentially moral.

So I fall back on criticizing the “connection with something larger than oneself.” I have learned to distrust these sorts of answers: they betray a sort of world weariness, as if the small causes that make up this world don’t amount to much, because they are small and not Large, they are too ordinary. I once had a professor tell me: Once you realize there is no such thing as the Absolutely Good, a goodness that you could connect to and which would infuse your life with meaning because by knowing it you would be linked to something larger than you – once you realize this, that there is no such thing, it turns out not that nothing matters anymore, but that everything matters – your wife matters, your house matters, your dog matters. These aren’t things larger than yourself, they are equal to you, on your level. And it’s there where our meaning resides. It is those things that we need.

Sunday, July 20, 2003
QUESTIONS ABOUT UTILITARIANISM: Consider a bargain-basement version of utilitarianism, one which says, “maximize the happiness of the greatest number of people” or “maximize the greatest good.” Now, in order to make this theory work, we’ve got to make it more sophisticated, much more sophisticated. Specifically, we’ve got to answer the following three concerns. The trouble is, I’m not sure how to go about answering them (the concerns are typical, but I thought it’d be useful to list them).

First, you’ve got to have some story about what makes people happy, or what happiness consists in. This seems an almost impossible task. Fulfilling the preferences of individuals? Even supposing that you could identify what those preferences were (certainly we don’t want to identify what people truly prefer with what their revealed preferences are), there are still the problems of (a) sometimes making people happy means not fulfilling their preferences and (b) sometimes satisfying the preferences of one person is exactly what makes another person’s preferences go unfulfilled. A related difficulty is that what things we can identify as good depend on the conceptions of the good we hold. For example, what is pleasurable to me is constrained in all sorts of ways by what I consider it permissible to take pleasure in – even if only for the simple reason that I’d feel guilty doing something wrong to satisfy a base pleasure, and the guilt would outweigh the pleasure I got (a stronger version of this claim is that a pleasure achieved by doing something wrong would just not count as a pleasure for me). Finally, there are some pleasures we want to discount altogether, such as the pleasure the criminal gets from committing his crime (Bentham, in his rigorous consistency, says we have to consider this sort of happiness, too – which has to be weighed against the pain punishment would cause the criminal). In short: is there some good or condition (or goods or conditions) that we can specify as either intrinsically leading to, or constituting, happiness?

Second, even supposing that we could identify one good or some set of goods that, when we maximize them, they lead to the happiness of the greatest number of people, there’s still the problem of calculating how to bring this result about. Take the case of animal welfare. Intuitively, this seems a no-brainer (or at least it seems so to many): the pain of the animals easily outweighs the pleasure people get from eating them. So, we shouldn’t eat animals. But there are a whole number of factors left out of this calculation: for one, there’s the fact that if there wasn’t a market for eating animals, many, many animals wouldn’t exist and therefore therefor there would be no pleasure for them, existing being a precondition for experiencing pleasure (this is related to what I think Parfit terms the “repugnant conclusion,” viz., that utilitarianism is committed in principle to the possibility that we should just harvest a whole bunch of miserable humans, because the sheer number of them would mean greater happiness overall, then if we just had a smaller number of content humans). In addition, we’ve got to factor in that there’s a worldwide economy that depends on a lot of people eating meat – the welfare of the people working in the meat industry would decrease precipitously if we all of the sudden stopped eating meat. The fact that all of these considerations would have to be weighed gives us a nearly impossible task: an ethical task for a God, maybe, but not for finite human beings. This isn’t an argument for having absolute rules, of course, but it is a serious knock against the practicability of utilitarianism (usually thought to be the most hard-nosed, practical, of all philosophies!).

Third, there’s the problem that some goods we do enjoy are goods that aren’t subject to maximizing criteria. Take friendship, an example Thomas Scanlon uses to great effect in his What We Owe Each Other: you don’t pay proper heed to the value of friendship if you break up with two friends in order to win the friendship of four other people. Something about being a friend with another person precludes this type of maximizing logic. For another example, and one more directly relevant to the acceptability of utilitarianism, there’s the value of being inviolable (highlighted in the recent work of F.M. Kamm) – we enjoy being the types of beings that can’t be sacrificed for the greater happiness of other beings. As Kamm phrases it, not being capable of being sacrificed for the greater good gives human beings a certain kind of status, the status of being inviolable. And this is a good, Kamm argues, that we can’t get if we’re just out and out utilitarians, and say that any given person can be sacrificed if overall utility would be increased: in that utilitarian world, people aren’t inviolable (at the very least, they would lose the sense of security such a status bestows – they wouldn’t know if at time T they might be sacrificed for the greater good. But I think Kamm is making a stronger point).

Of course, the utilitarian can reply to this last worry along these lines: “Well, in the case of goods like these, then what it means to maximize will mean something different. What it is to maximize the value of friendship is just to be a good friend to the friends you have, and not abandon them for the sake of being friends with more people.” In this case, utilitarianism can accept any type of good – but at the cost, I think, of sacrificing any bite a utilitarian theory might have. After all, a utilitarian on this account could be a deontologist, simply by saying, “The way you maximize respect of persons is just not to treat them as means to a greater good.” If the content of what a utilitarian can count as contributing to happiness or the greatest good can be blown wide open like this, then utilitarianism just amounts to the very, very modest type of theory – a theory that says, whatever good you have, maximize that good, within the constraints that good allows, where what “good” consists of is left worryingly vague -- and could, in principle, include constraints on maximization: a point which, at the very least, has the whiff of paradox about it.

MORE BRIGHT THOUGHTS: Reading the exchange between Dennett and Michael Rea, some more thoughts: No matter what the particular textual evidence says about whether Dennett truly thinks religious persons belong in a zoo, what comes across is that Dennett wants religion defanged, tamed, diminished, when it comes to the public sphere. It’s hard not to feel that Dennett believes that religious people are backwards, and that apart from a few nice cultural contributions (pretty churches, etc.) their overall influence has been baleful, both in terms of advancing knowledge and in advancing morals, and that therefore they have no contribution, no per se religious contribution, to make to civic life.

Whatever the case for not advancing knowledge, one might think that the case for advancing morals by religious persons has some merit, and so the case against banning them in the public sphere is weak. Here we make the obligatory reference to the civil rights movement, and Rev. Martin Luther King Jr. But what of the overall record? There was, of course, religious backing to slavery. And when one thinks about the major progressive moments, such as women’s rights, gay rights, and animal rights – the influence of religion in these areas amounts to a negative, at least one might plausibly suppose. On the other hand, there’s the church’s contribution to social justice and (this is either a plus or a minus, depending on where you stand) the pro-life movement. It seems important to figure out just in what ways and to what degrees religion has been a benefit to society; because too often, it seems that religious persons believe it obviously is a benefit, and non-religious people believe it obviously isn’t (or at least is a wash). We need a more pragmatic perspective.

But the deeper point raised by what Dennett says is: is there any other way a liberal democrat (small “l” and small “d”) should look at religious belief, or at least the public expression of religious belief, in any other way than just a club with a really long history? Stephen Carter, in a number of his recent books (Culture of Dissent, God’s Name in Vain, etc.), plugs for religion because he believes that’s the only real source in American society for pushing people away from their own selfish desires, and towards higher causes. This may be contingently true in America, though reflecting on the causes mentioned above (women’s rights, gay rights, and animal rights), it seems that there are also secular, moral sources in American civic life. So why should religious belief be special? I’m torn here, because I want to resist Dennett’s explicit condescension towards religion (there’s nothing true in it, but hey, it’s made some neat cultural contributions), but at the same time feel that to allow religious belief any greater role in public life is at best unwarranted and at worst dangerous.

I confess to holding on to (what I’ll call) a “theological instrumentalism”: I tend to like it when priests and pastors give sermons on social justice and denounce the wealthy as ignoring God’s will and not recognizing Jesus among the least of us. But I tend not to like it when religious people use theological and scriptural arguments to defend certain ideas about the role of women, or the practices of gays, etc. So I’m happy to allow public invocation of God in the former case, but reluctant about it in the latter case. My excuse for this (if I have one, which I’m not sure I do), is that those theological arguments which also have good secular arguments can satisfy the “Rawlsian proviso” which says, roughly, that you can invoke God in political life, so long as after a suitable period of time (Rawls notoriously doesn’t say how long this is) you can explain in “public” terms why your position is justified. Because I believe there are good, secular arguments for social justice, but not for condemning homosexuality, I’m more tolerate of arguments for the former than for the latter cause. But at the same time, theological instrumentalism is a ploy only a secularist can use – the religious believer won’t be able, or willing, to make the distinction between God’s causes which are acceptable and which aren’t: because what counts as acceptable is what God says is acceptable, not what is acceptable according to liberal, secular, morality.

The deeply troubling aspect of debates like the one between Dennett and Rea is that they raise the specter that liberalism (and its attendant reliance on “reasons”) is just another faith, rather than a neutral or impartial playing field on which competing interests and groups can strive to reach some moral consensus. I think we are good to be rid of the idea the liberalism is somehow neutral, that it doesn’t embody certain moral principles – because it clearly does. The advantage of liberalism, if it is an advantage, is that it seems to allow a wider breadth of diverse viewpoints, to accept a great degree of religious and moral pluralism, while nevertheless staying true to its underlying principles. To which the fundamentalist might reply: “Yeah, and that just gives more room for false beliefs to take hold. And when you say liberalism can accommodate a wide variety of religious views, what you really mean is that it can tolerate Unitarians.” To which the liberal will reply that the fundamentalist is being “unreasonable.” And so it goes.

Wednesday, July 16, 2003
THE NO-BLOGGING AT THE SUPREME COURT RULE: In bidding farewell to Orin Kerr at the Volokh Conspiracy, Eugene Volokh remarks that “to my knowledge, there is no forma ‘no-blogging’ rule at the Supreme Court, but there’s a very firm custom that clerks stay out of the media during their year of clerking … and it’s a custom that I think is quite sensible, even though I might regret its results in particular cases.” I suspect that there may be an obvious reason why this custom is “quite sensible,” but I’m at a loss to identify exactly what it is. Note that the custom isn’t just not to comment on the goings-on while one is a clerk, but also after one is done clerking. Recall the great controversy when Edward Lazarus published his narrative of the years he clerked for Justice Blackmun. The buzz surrounding the book was full of “one doesn’t do such things.”

Why not? The reason, presumably, is that story-telling about how the court actually reaches its decisions (stories like the ones which fill Bob Woodward’s book The Brethren) will make the court look bad, decrease its legitimacy, make it less likely that its decisions will be taken seriously. It will seem that the court is just one more political institution among others.

I don’t find this persuasive, even apart from its “Mighty Wizard of Oz” type approach to the problem (don’t look behind the curtain). The first thing is that it might be that what clerks reveal in their memoirs is that the court actually engages in reasoned decision-making – the kind that Justices O’Connor and Breyer, in their interview on ABC’s “This Week,” intimated that they do engage in. And if clerks talked about this type of constitutional argumentation, what’s wrong, exactly, with writing about this?

There’s the possibility, of course, that decisions don’t work like this: that they are influenced by personal predilections and ideologies, that vote-trading and log-rolling go on, etc.. But if this is so, then why shouldn’t we know this, also? If the Supreme Court is a political body, then we should know that it is – if it isn’t already obvious that it is one. (By the way, those who want to stress the constitutional importance of legislatures and public deliberation should welcome this – it kicks the Court of its pedestal as the one non-political, impartial branch that should therefore trump all others).

My worry, or better, my suspicion is that the reason for the no-blogging rule goes something like this: the Supreme Court's only power is in how it's perceived. If it's perceived as just another political body, it loses its clout, it has no power. And because revealing the inner workings of the Court might make it seem to be just another political body, we need to have firm customs about not revealing what goes on. Hence, the no-blogging rule, and the custom of not talking about your time clerking -- about how the decisions were made, etc. My question is, doesn't all this smack of being a noble lie?

Sunday, July 13, 2003
NOT SO BRIGHT: I’m not at all sympathetic with Dennett’s proposal for “brights” (i.e., naturalists) to “come out of the closet” – even though I’m very sympathetic with much of what he says philosophically, e.g., about consciousness and intentionality. For one, it seems silly on its face to form a political coalition around holding certain metaphysical beliefs, as if Wittgensteinians of the world should unite in support of their metaphysical agenda (“we demand all Supreme Court nominees to say where they stand on the private language argument”). But Brights pushing for political clout is, more importantly, a political blunder.

The idea motivating Dennett’s piece seems to be an implicit equation between non-Brights and illiberal political opinions, or to put it more bluntly, an association of religious believers with right-wingers. But this is a mistaken assumption. In fact, my sense is that many religious believers, especially from the more liberal denominations, might even be sympathetic to Dennett’s metaphysics, preferring to see the church as an important moral resource, or a place to find comfort, rather than an imposer and enforcer of an arcane cosmology (though some may see this as decline of religion, rather than its further evolution). Richard Rorty’s recent distinction between being an atheist and being an “anticlericalist” is helpful in this regard – it enables us to distinguish between the many moral and progressive functions a parish might serve and a larger church establishment which does often mobilize itself in favor of non-progressive causes.

By coming out as a Bright, and forcing the issue over theological beliefs, one misses the chance to create coalitions with non-Brights, around moral issues which both agree on. Because if we can agree on those, then we can keep our other differences as “merely theological” or “merely metaphysical.” The rub, of course, is if there is some essential connection between one’s cosmology and one’s political and ethical positions. If that’s the case, then there’s no way we can put off the war of cosmologies for another day. But I doubt that this is the case, and I think that, to a significant degree, the hope of a liberal democracy depends on the ability of participants to put off metaphysical questions in order to debate and discuss and form coalitions on moral and political issues. Dennett is wrong to try to provoke such a metaphysical battle between Brights and non-Brights.

Saturday, July 12, 2003
LEGITIMATE EXPECTATIONS: In the wealth of recent commentary on the Lawrence decision (no, still haven’t read it), the question has come up, if only implicitly, of the status of laws against adultery – Scalia, I think, lists these laws as possible candidates for being struck down, given how they also legislate against a certain form of (supposed) sexual immorality. I’m not interested in whether Scalia is right about this or not, that is, whether given the grounds of the holding in Lawrence, adultery laws are also suspect. I’m interested, rather, in what might distinguish those type of laws from sodomy laws, and whether this makes the case for them stronger or more reasonable.

Nate Oman, in an e-mail, suggested off-handedly (therefore, I’m not ready to attribute what I say to him as his position), that marriage laws create a set of legitimate expectations in each of the parties, which adultery laws help enforce. The model here is to any sort of contract, where the law comes in and enforces the terms of that contract, and makes sure each party follows through on what it’s promised (so the party that’s cheated on doesn’t get played for a sucker). Laws against sodomy aren’t there to uphold a prior contract and to help guarantee that the legitimate expectations of the parties are both met. So there’s at least a prima facie difference between laws against sodomy and laws against adultery.

Is it part of the explicit marriage contract that the two parties be faithful to one another? I don’t know about this. Even if it is, might the parties have some sort of implicit agreement between them about whether they will be truly faithful to their partner? Consider (call this the Clinton model) an arrangement where one partner knows that, given past habits, the other will probably fool around. Nonetheless, the faithful partner implicitly consents to this, in exchange for the other benefits the marriage gives him or her. Or there may be an explicit arrangement the two parties might have between one another for an “open” marriage. Marriage can be a union that is made to secure any number of goods, and sexual fidelity might only be one of them, and not a necessary one, either. To have adultery laws, and to enforce them, is also to enforce the idea that marriage must be a contract that contains a clause mandating sexual fidelity. But this then seems to impose a certain conception of the marriage contact on everybody.

There is also a worry about making adultery a criminal matter, rather than one to be settled by social norms and communal pressure. A community might from on the adulterer, but still leave it open for the injured party to take him or her back. Making adultery criminal makes this possibility much less likely, it seems – the unfaithful partner is now a criminal, rather than someone who has strayed but (with the tacit consent of the community) can make his way back into the good graces of the wronged party. Criminalizing adultery seems to forego the possibility of this complex back and forth that might be negotiated between the couple; instead, it is now made into a legal matter. Even if there are legitimate expectations created by the marriage, and those expectations are disappointed, it might be best not to have the criminal law come in and interpret when this has happened. It might be best left to the parties themselves, along with the communities of which they are members (i.e., church, family, neighborhood).

Perhaps the idea is that we should have adultery laws, to advertise that the state favors sexual fidelity between married partners, but rarely enforce those laws. It’s always chancy to have laws that are meant not to be enforced and only exist for their expressive value: there’s the risk that they will be enforced, but unfairly. But, still, even if we were to have this arrangement, on what grounds would we be justified in having the laws in the first place? Here it’s tempting to return to the idea that marriage creates the legitimate expectation of fidelity for both parties. As I noted above, however, it’s not clear that all parties to marriages have expectations of sexual fidelity, nor is it clear that they ought to. That most marriages might have this expectation doesn’t mean that all marriages should.

If we do think that they ought to, then we seem to be saying that the law should uphold a certain moral conception of marriage, one that has fidelity as a necessary component. And here we risk erasing the distinction between laws against adultery and laws against sodomy. The laws against sodomy, we might say, were justified by the fact that a community thought a certain sexual practice was immoral or unnatural. Now, if we justify the laws against adultery on the grounds that sexual fidelity is a moral good, then we seem to be doing the same thing, i.e., we have a certain moral conception of how parties to a marriage should manage their sexual lives.

None of this should be construed to say that adultery is a good thing or even moral permissible. I’m only raising questions about whether the moral badness of adultery should be backed by a legal sanction against it. In fact, perhaps the considerations above could be interpreted as giving credence to a “untune one string, and hark what discord follows” strategy of argument, along the lines of “look, you thought we could overturn laws against sodomy and just leave it at that. But wait, once you give up the part of sexual morality that made sodomy a bad thing, you seem committed to allowing all these other things, too.”

Wednesday, July 09, 2003
PUBLIC REASON: Lawrence Solum, in a lengthy post on “legitimacy,” suggests the following possibility: that legitimate state interests are “those that rely on public reason and illegitimate state interest rely on nonpublic reason.” Of course, this leads to the question of “what is public reason?” – which Solum goes on to ask. A few remarks about what he says about public reason:

The first thing to wonder about is what kind of concept “public reason” is. Solum says that public reason is the “common reason” of a society. But is common reason merely an statistical notion? By this I mean that the common reason of a society is just what most people tend to believe is the case, what passes for “common sense.” If this is the case, then there’s no particular restriction on theological beliefs being part of a society’s public reason, so long as most (all?) people believe in them. And in addition, morals laws might be legitimated by public reason, if enough people believed in the moral principles they enforced. So on the statistical interpretation, public reason doesn’t have much content – it’s just what most people happen to believe. A reason given by a church, for instance, grounded in that church’s sacred texts, could pass as a public reason, so long as enough people were members of that church (that its members constituted a large part of the “public at large.”

Is there way we can give public reason more bite? A slightly stronger way to cast public reason is to say that, as a matter of fact, there is no such large consensus on moral/religious beliefs so that any of these beliefs can serve as a basis for public policy. But this is only because, given religious and moral pluralism, we’re not likely to reach a consensus on anything unless we bracket our controversial moral and religious beliefs. And lack of consensus on some vital things is bad, sometimes even worse than waiting for the day when our particular vision of the good will triumph. So for strategic reasons, we agree to a common mode of discourse, of “public reason,” because we realize that that’s the only way we’re going to get along.

This is to give public reason still too weak of an interpretation, I think – it makes it into a modus vivendi. We don’t appeal to our view of the good for strategic reasons; it won’t win a consensus, it may only anger those who disagree with us. But one would have thought we might agree to speak in terms of only public reason on moral grounds, viz., that it would be unfair to impose one’s theological views on other people, say. This is a stronger claim, with normative bite, but we need an explanation of why it’s unfair to impose those theological beliefs on others, even if they do have a majority in favor of them. We could say, after all, that fairness is preserved if a procedure is democratically enacted, and that all parties had a roughly equal chance to air their position.

If we want to say in response to this that we can’t use controversial philosophical beliefs to impose on people laws that violate their fundamental rights or interests, then it seems clear that what is doing the work is not public reason per se, but a prior understanding of what those rights and interests are. We agree with the majority in Lawrence, if we do, because we think that right to privacy in this instance is fundamental. That is, we think those who oppose that right are mistaken, in the content of their belief, rather than in the terms that they cast it in (we don’t object to the fact that their arguments against same-sex intercourse are theological; we object to them because they are wrong, though this may also entail that we think their theological beliefs are wrong as well). My worry is that to cash out Solum’s idea of public reason, we’re going to fall pretty quickly into some view about the content of morality, about what things people have rights to and what they don’t. I don’t know how else to draw the line between public and nonpublic reason other than on substantive moral grounds, i.e., public reasons are reasons that advance the moral principles we find worthy of assent, and nonpublic reasons are those that don’t. Still, in a way, I hope I’m wrong about this. And there does seem something right about saying that what's wrong with a certain sort of (public) argument is that it's theologically based. But can talk of "public reason" adequately cash out this intuition?

Monday, July 07, 2003
MORE ON MOVIES: While I’m at it, I saw “The Firm” recently, and I liked it – not as a “think” movie, but simply as an enjoyable chase/thriller movie. At the same time, there’s a conceit that gains prominence at the end of the movie, which I’m hoping must be intentionally comic.

The Tom Cruise character makes a big deal over the fact that he’s gotten the bad guys at The Firm without violating the attorney-client privilege because this, horror of horrors, could get him kicked out of the bar. First, there’s something incredibly selfish about this, as he puts his ability to practice law in the future, against getting the mob. I mean, which is the higher call? I know there’s something called professional responsibility, but our role morality is constrained by morality in general, and even derives from it.

Second, Cruise is big on attorney client privilege, but he doesn’t stop short of committing all sorts of crimes – for example, he basically breaks into the offices of his other law partners and Xeroxes confidential information. And this is the least of it. He coerces the FBI into getting his brother out of prison (and along the way, does an illegal wire tap). Why are these laws unimportant in getting the bad guys, and attorney client privilege? And while we’re at it, can’t committing these sorts of crimes also get you disbarred? If this is right, the whole thing gets even more confusing – he’s selectively, and arbitrarily, choosing on which grounds he’s going to get disbarred.

What annoys me most about the concluding conceit (that he, despite everything, has upheld attorney-client privilege) is that the movie practically revels in characters who act outside, or just nearly outside, the law. We’re able to indulge, early on in the movies, in the exploits and the lavish lifestyle of the law partners who are willing to “bend the rules without breaking them” (and again: here the Cruise character goes in for this, without really flinching). And then at the end, we cheer the FBI as it bends the rules (e.g., getting the bad brother out of jail) in order to achieve justice. Part of the appeal of the movie is that it allows us to enjoy this fantasy of lawlessness, of being above the law, in pursuit of either base or noble ends.

Perhaps I’m being too picky about this, because perhaps we’re meant to see the Tom Cruise character as a complex figure, trying his best to negotiate the line between being lawful and being lawless. This may be. Still, at the end, we’re led to believe that he retains his initial purity of fidelity to the law and to the legal profession, the “promise” that drew his wife to him “even before they met.” Now, if Cruise had said, “We got them, and I did it without violating the attorney-client privilege,” and then both he and his wife burst out laughing – now that would have been the better ending., I think.

ONE ANGRY BLOGGER: Tyler Cowen, blogging over at the Volokh conspiracy, asks for suggestions for movies he might view in the “law and literature” class he teaches. My first thought – Twelve Angry Men – is dismissed by Cowen as an aesthetic failure, though I wonder if aesthetic brilliance should be a criterion for inclusion in a law and literature class. Sure, there’s a certain threshold of quality which a movie has to meet (which I think TAM does meet, even granting Cowen’s reservations), but beyond this the main concern should be that the movie provokes students to reflect on an important issue or issues in the law.

I watched TAM about two weeks ago, and though it’s not a great movie by any means, it is a good movie and (more significant for the present post) it does move one to reflect on a key concept in criminal law, that of “reasonable doubt.” When is doubt reasonable? Henry Fonda’s character (his goodness blatantly telegraphed by his white suit) refrains repeatedly that, “I don’t know. I’m not saying it happened that way. I’m saying it’s possible.” But what kind of standard is this? It’s obviously not logical possibility, because that just opens the door wide open. So it’s something more restrictive that than, but what?

This being the second time I’ve seen TAM, I wondered how convincing the Fonda character’s case really was – I remembered being very convinced that there was reasonable doubt about the teenager’s innocence. This time I wasn’t quite as convinced. A lot of the persuasive power of Fonda comes from factors quite apart from the facts of the case – some of the last men standing include the blatant bigot, the man who has problems with his son (and again, that this is what’s going on is practically shouted out early in the movie – or are these things you notice only the second time around). And then, after two or three members of the jury have switched their votes to not guilty, there’s a momentum shift, and you, the viewer, are hard pressed not to jump on the bandwagon.

But what about the facts? The one “rational” opponent of Fonda, who holds out against him is convinced by an argument that – if I understand it right – is pretty weak. The kid couldn’t remember what movies he saw (that was his alibi, that he was at the movies when the murder occurred), and this is rendered plausible by, what?, the fact that the man couldn’t remember the second bill of a movie he saw several days ago? And at least he could describe something about it. As far as we know, the kid couldn’t even roughly describe the movies he saw (and wouldn’t he, if he could? “It was the one about …”). The injury of the old man who lived beneath the train might have been recently sustained; the woman might have needed her classes because she couldn’t see things close up (as the man with the family problems pointed out).

It seems possible that most of the doubts the Fonda character had about the murder could have least been challenged at bit more – a lot of the convincing Fonda does go in for is made in many cases by high drama rather than rational persuasion, strictly speaking (getting the man with family problems to say “I’ll kill you”; finding a knife with a design similar to the one the kid had, and stabbing it on the table, just after everyone has says “there’s no way anyone could find another knife like that”). There’s some irony to this, as Fonda’s character is ostensibly the calm, cool, rational one.

Still, all the doubts need to be are reasonable – and don’t Fonda’s doubts add up to this? But what’s the object of the reasonable doubt? That I find one of the prosecution’s facts dubious? This clearly sets the bar too low. What’s needed, it seems, is enough doubt about enough (significant) individual facts so that they add up to reasonable doubt about whether the convicted really did commit the crime. But this is a very vague standard, and even charitably interpreted, I’m not yet convinced that Fonda does show there to be room for reasonable doubt. Mere possibility that the facts may be wrong is not enough – does it have to be probable that they are wrong? Is that what makes the doubt reasonable, i.e., that there’s a better chance (or at least an even chance) the facts as the prosecution are true as they are false?

But even bracketing this issue, there’s another big issue the movie tackles, which we get most visibly in the scene when Henry Fonda’s character is in the bathroom, talking with another juror. That juror says, in response to Fonda’s “supposing he’s innocent”: “supposing he’s not, then you’ve got a criminal set free on the streets.” Fonda pauses, and reflects. The movie is, to a large extent, a defense of process over substance – the good of a process that may allow some guilty persons to go free in order to avoid convicting those who may look guilty but aren’t really. That’s why the standard of reasonable doubt is there, it’s a much lower standard, then, say, a preponderance of evidence. But why have things set up like this? Further, and going back to the movie: how much does it matter that Fonda convinces us that it is likely that the kid didn’t commit the crime as opposed to that it’s reasonable to doubt he committed the crime? Likelihood seems to point to the question of whether he did or didn’t commit the crime. Reasonable doubt is an epistemic standard – given what we know, would it be reasonable to believe that he committed the crime? After all, it’s no contradiction to say, “One can reasonably doubt that he committed the crime, but it’s pretty likely he did do it.” And on this reckoning, you’d have to vote not guilty. But what would be wrong with having a system where we voted on likelihood, rather than reasonable doubt, assuming the two don’t, at some level, collapse into one another?

Anyway, these are just questions raised by the movie – and they raised in such a way that talking about the movie and its characters and its drama, we’re moved naturally to consider them. At least I was.

Sunday, July 06, 2003
OMAN ON COKE: Nate Oman has a characteristically thoughtful post on what he sees as the difference between theories that, in some way or another, posit history as a ground for the legitimacy of an institution. My trouble is trying to figure out how to best cash out the difference between what Nate calls “Burkean” and “Cokeian” theories of historical legitimization, and whether the latter is any improvement over the former.

First, a word about Burkeanism, and its supposed advantages. I’m bracketing historical correctness here, and just going on what Nate says – still, I think he’s write when he writes of Burkeanism that “long historical practice somehow instantiates wisdom that cannot be easily articulated or rationally grasped.” I think the best way of seeing the advantages of Burkeanism is to take them as primarily pragmatic. There is a real risk in overthrowing established social institutions, which includes not only the obvious costs of going against custom and all the problems that involves (it’s messy getting people to change too much and too quickly), but also the costs of forsaking the implicit wisdom in a lot of our practices, which we may at the time be only dimly aware of. So I take it that for the Burkean, present institutions with a long history have at least a presumptive legitimacy.

(A side note: I realize I may be collapsing Burkeanism into what Nate calls “expectation theory,” i.e., don’t disappoint expectations that have legitimately arisen from past practice. But I have hard time seeing the advantages of Burkeanism except in these terms. To base policy on wisdom that can’t be rationally grasped I think involves bringing in theological premises, which even if sound are a dubious basis for public policy. I should add, also, that I also take the advantages of the “expectation theory” to be mainly pragmatic, or at least until we get a better idea of what expectations are “legitimate” and what makes them so.)

But there are obvious costs to being Burkean. Just as there are costs of changing too much, there are costs of not changing. Worse, sometimes the costs of not changing seem obvious and severe, to which the Burkean can answer only in vague terms, about “wisdom” that can’t be “rationally grasped” or “easily articulated.” The Burkean is often put in the position of darkly warning about changing things; the problem is, sometimes he’s just wrong, and sometimes even if he’s right about the costs of change, the costs of not changing may still be high enough to warrant the move, overcoming the presumption of legitimacy the institution may have. It can’t be that institutions with a long history necessarily and in every case have a hidden wisdom which we only see through a glass, darkly.

Does Coke help us out here? Coke, on Nate’s recounting (again, I’m taking Nate’s word on the history here), is a sort of souped-up Burke. To the thought that long history may indicate a hidden wisdom (which “cannot be easily articulated”), Coke adds the idea that institutions that have “universally persisted over long periods of time” can be seen as being consented to (didn’t someone call this the “democracy of the dead”?). And this “consent” gives them a kind of legitimacy. As Nate elaborates, “a Cokeian consent rests on a much thicker notion of ratification [than the one conferred by mere present-day democratic majorities] one that can only exist when practices prove themselves over long periods of time and across many subcommunities.”

Obviously, the key idea here, that of consent, needs to be elaborated. Specifically, we need to have a way of distinguishing between consent (across the years and across different communities) and mere persistence. The fact that an institution has been around for a long time, and even the fact that it has been a part of many communities across time, doesn’t entail that that institution enjoys consent, even if we liberally interpret that term, as we’re going to have to. It may just enjoy grudging acceptance; it may inspire only indifference. At least with democratic majorities in the present day, we at least have some sense that the institution is approved of (some sense – I don’t want to push this point too hard).

It’s even more of a problem when that institution is oppressive. And that’s the real point here. When a practice is based in animus towards a group, and leads to the restriction of that group’s liberties and its ability to function as a full member of the political process, then the oppressed group’s opinion won’t adequately be registered, and so the idea that the practice has been consented too will be biased from the start – because those who wouldn’t have consented to the practice have been shut out. With an oppressive practice, the Cokeian risks reading into it a superficial “consent” that doesn’t represent the opinions of all those who are affected by it.

IS THE NEW YORK TIMES STILL BIASED? Or: how do you fairly and objectively describe a Bush campaign fundraiser? In a June 24th New York Times, we read the following paragraph: “Despite the fund-raiser’s high admission price, it was not an elegant event. Large crowds surged around the buffet tables … which held tepid mini quiches, while larger crowds pressed toward the front of the room under bright white lights … former Representative Rick Lazio of Long Island, the Republican who lost to Hillary Rodham Clinton in the 2000 Senate race, was near the door.”

There’s a snarky tone to all this. The huffing over the quiche, which is not only “mini,” bad enough at $2000 a pop but also (horrors!) “tepid.” And then there are the glaring lights, which hardly befit an event with an “high admission price.” Perhaps the biggest loser in this paragraph is poor Richard Lazio, who, his career over, lingers Ancient Mariner like by the door of the great event, petitioning passers-by to listen to the story of his Fall to Hillary. (I don’t know, there’s just something poignant about adding that Lazio was “near the door” – as opposed to, say, “seated at the dais.”)

But the point is that no one goes to a campaign fund-raiser for the quiche or the lighting. They’ve paid the high admission price because, apart from the fact that they get to see Bush speak, they want to see their candidate win (benign interpretation) or they want to buy access (sinister but probably true interpretation). The tone of the paragraph I’ve quoted gives sort of a wink and a nod, as if to say, we all know what this is about – it’s about just raking in the money. I mean, did we really need to know that the quiche wasn’t quite warm enough? Describing the bad food and the bad lights like this seems more like getting some jabs in than reporting newsworthy facts.

It gets worse when the two writers go on to discuss Dick Cheney’s performance at his own fundraising event across town. We learn that “Cheney’s famously uninflected speaking style failed to rouse his audience” and that “seven or eight obvious applause lines … flew right by the crowd with no reaction.” And we’re told that, “finally,” some of Cheney’s men started “leading the applause” in order, obviously, to cue the rest of the audience that (hello!) they should start applauding.

Again, what passes here for description read an awful lot like digs against the vice president. It’s one thing to describe the audience’s reaction as “muted” (or even “tepid”) but it’s another thing to go and on like this for two paragraphs, painting the picture of an increasingly desperate Cheney flailing a the speaker’s podium, searching for a response, or even a pulse, from the people assembled to hear him (is this mike on?).

But is all of this bias, and is it even objectionable? There’s no obvious political or ideological bias involved – there’s no critique of anything substantive that the president or vice-president has proposed, and the article is even generous in quoting praise of Bush’s performance in the “war on terrorism.” So the bias here certainly isn’t overt, and it isn’t in any obvious way “liberal” as opposed to “conservative” or “democratic” as opposed to “republican.” Nor is it necessarily picking on the two personalities, although the statements about Cheney come pretty close.

What comes across however, is a tone, even an orientation, that colors the piece, and especially the paragraphs I’ve quoted. It’s a certain knowingness, that these events are all set-ups, that the quiche and the lights are just cheap props, and what matters is not genuine applause but any applause, even handler-induced applause (“Mr. Cheney’s handlers began leading the applause”). The sense is that, to these reporters, it’s all a big show, and they know better, and are knowingly cynical about the whole thing. In a lot of ways, this bias is more corrosive than overt, political bias. That at least you can detect most of the time (as with Fox News: “We Decide, You Shut Up.”)

The thing is, I agree with what story implies. But I’d rather read a straight out, straightforward critique of the way the American political process works (or doesn’t work) in the editorial section, then have it sneaked to me between the lines of a news story.

Saturday, July 05, 2003
PUNISHING FOR RESULTS: With the exception of Michael Moore, there seems to be an almost unanimous academic consensus about punishing successful crimes more harshly (much more harshly) than last-act attempts. The big guns (Kadish, Morse, Feinberg) have come out against it, so much so that one wonders if there must be something to it. That, and the fact that this difference in punishment is so entrenched in our criminal law and doesn’t seem likely to go away anytime soon. One wants, Hegel-like, to find the rose in the cross of the present.

We need an example on the table, in order to pump the intuition that it is irrational to punish successful crimes more harshly than last act attempts. One case is between the successful and the unsuccessful assassin (borrowed from Katz) – both aim, very carefully, at their intended targets. One hits his target, killing him, but the other assassin gets luck (or unlucky, depending on how you look at things) and a bird darts in front of the bullet, sparing the life of his target.

Now, the intuition is that in all the matters which were under their control, there is no difference between the two assassins. What makes them different depends on causal factors under their control. And making factors outside of agents’ control matter in punishment is irrational – kind of like, to use Kadish’s analogy, punishing people more harshly because they commit crimes under a full moon, or on Tuesdays.

Why is it irrational? There seem to be two reasons. The first is that if the criminal law is designed to deter offenders, then we would want to equally deter the person who hits his target and the one who does everything in his control to hit the target. We want to deter behavior likely to cause harm, and the two assassins are both doing this. They do everything in their power to cause the harm – they do this in equal measure. So their punishments, from a deterrent standpoint, ought to be the same.

The second reason is fairness. The only thing that serves to distinguish the two assassins is what they don’t control. But this is arbitrary. By hypothesis, they have both tried as hard as they could, and done whatever they could, to kill their intended target. To base the difference in their punishment on something they couldn’t control, e.g., whether or not a bird flies in front of their bullet, foiling the assassination attempt, is irrational, in the same way punishing people more harshly for killing during a full moon would be irrational. What we can’t control, we shouldn’t be punished for.

So what can be said in favor of the differences in punishment? Not much, I’m afraid. Here are two arguments which I think are non-starters:

(a) The epistemic argument. In the case of the successful assassin, we know that he intended to kill his target, because he not only did everything to prepare to cause the harm, he actually caused the harm! With the unsuccessful assassin, there remains room for doubt: because he missed his target (because of the bird), we might be tempted to ask, did he really mean to kill his target? And so the argument goes: with the successful assassin, we have a measure of knowledge, a measure of certainty, that we don’t have with the unsuccessful assassin (that is, there’s room for doubt).

Even supposing that it is hard to discern exactly what people intend to do (despite their actions to the contrary), this argument isn’t very strong. In fact, it concedes the point, that if we had a case where we could know the intentions of each assassin, then both would deserve the same punishment. If the claim is only an epistemic one, the opponent of different punishments for success and non-success, can grant it: pragmatically, he’ll say, sometimes we can only read intentions off results, and this is unfortunate. Still, in principle, we ought to punish bad intentions equally, even if only one of them actually causes harm.

(b) The consensus populi argument. Kadish suggests that the only possible justification for the differential in punishments is because people get madder when harm is actually caused, and so they want to punish actual harm-causings more harshly than only last-act attempted ones. This may be because, in a democracy, people ought to get what they want, or because when people don’t see justice served in the way they think it ought to be served, their outrage will spill over in socially unproductive ways.

As Kadish realizes, the argument isn’t very good. It’s more of a pragmatic claim, ultimately. Democracy ought to be constrained by considerations about what is just, and merely because a majority of people support a particular form of punishment doesn’t mean that punishment is correct. And although concessions may have to be made, these (if they involve injustice) ought to be temporary, at best. One might respond by saying something like: “well, once people have done something bad, there’s a certain baseline of the extent to which they should be punished, and, hey, if a majority wants to punish some crimes more than others because they caused harm, or were done on a Tuesday, or under a full moon, that’s fine. It’s even fair.” But I’m uncomfortable with any argument that permits a systematic irrationality (if that’s what it is) in punishing, even with democratic credentials. Nor do I think that if one commits a crime, all is fair in terms of sentencing: one doesn’t forfeit all of one’s rights after doing wrong.

I’m hesitant to offer my thoughts on what might justify the difference in punishments, if only because they are so raw. I also worry that they might collapse into one or another of the two arguments I’ve already labeled “weak.” But here goes (much of what follows is inspired by Peter Winch’s great essay on “Trying”). Consider the phenomenology of the two assassins. The one who’s successful in killing his intended victim, not only has had bad intentions, and engaged in harm-causing behavior, he’s also seen his will manifested in the world. The assassin who misses doesn’t see his will manifested in this way. It remains onlya possibility, not an actuality.

Why does this matter? There’s something about those intentions of ours that do get successfully implemented in the world (made concrete and made public) that seem so much more a part of us than do those intentions we merely have “inside” so to speak, no matter how far we’ve gone in trying to make our wills actual. There is still room for the unsuccessful assassin to say, after the bird flies in the path of his bullet, to say “Thank God, I missed.” But with the successful assassin, there is no such room: his crime has become real. There is no way to take it back; it is part of his self, his real, concrete, public, embodied self.

Can this difference be cashed out in a merely epistemic way, along the lines canvassed above? The successful assassin may just know, and have this knowledge presented forcefully to him, that he truly had the intention to kill another, because after all he intended to kill another and he succeeded. The unsuccessful assassin doesn’t know this, or at least he has room to doubt that he really did want to kill another. I’m not sure this is right. There seems to be (what I’ll call) an ontological difference between the two assassins, and not merely an epistemic one. The successful assassin has become something that the unsuccessful assassin hasn’t, and he has become something by virtue of the fact that his will has been actualized in the world. His intention has extended out into the world, in the way the unsuccessful assassin’s intention hasn’t.

I think what I’ve been saying about the two assassins tracks a more general truth about how we see ourselves, and the importance we give to results in understanding our own self-constitution. We are not merely isolated wills, thinking things, but embodied beings who interact with a world. Sure, it can be a matter of luck in what ways our wills get manifested in the world, but it still seems a fact that how we see ourselves depends crucially on what impact we actually do make on the world. This explains why we think the successful assassin is more wicked than the unsuccessful one – because we think that he has become evil in a way the unsuccessful assassin hasn’t. His self, by which I mean not merely what he has attempted to do, but what he has actually done, expands to include causing the death of another.

I also believe that it’s the case, and here I’m obviously treading into debates on moral luck, that things we don’t intend but are causally implicated in anyway also contribute to our self constitution, and not necessarily in a way that’s irrational. To accidentally hit someone with your car is to be shaped by that event, to see yourself in light of it. It seems crass of someone involved in such an accident to merely shrug it off, and say that’s what his insurance is for. Rather, it seems that there was some part of himself involved in it – because what our selves are is not reducible to our intendings only, but also encompass how we are related to what actually happens in our world.

To return to the question in criminal law. I want to say that there is a real phenomenological point that gets captured by saying the successful assassin deserves a greater punishment than the unsuccessful assassin, and that point involves how we see ourselves as embodied beings in a physical world. So what the criminal law does, I’m suggesting, is enact a certain way of looking at ourselves, a conception of ourselves as persons, to use Rawls’ language. We take ourselves to be more than what we merely will or try to do, but also (and importantly) what effects we have on the world we live in. The question when it comes to the law is, is it proper that the criminal law embody such aims? Or should it try to remain neutral among different ways of looking at ourselves in relation to the world (after all, it is plausible that some might look at themselves solely in terms of what they will)? If I’ve been at least partially persuasive in stating why the differences in punishments might seem apt, and I’m not entirely sure I have been, then this becomes the next question to ask.

MERCY: Reading over Dan Markel’s forthcoming article “Against Mercy,” alongside the first chapter of James Q. Whitman’s book Harsh Justice, I’m wondering if it’s possible to give a coherent account of mercy as an actual bona fide virtue, as opposed to something (a) employed for pragmatic ends, (b) synonymous with discretion, (c) flatly contrary to the demands of justice (because based on caprice, bias, etc.).

Let me first distinguish, in a rough and ready fashion, between mercy and forgiveness. Following most contemporary accounts (which in turn follow Bishop Butler), I take forgiveness to be the foreswearing of resentment against another for something he’s done. By contrast, mercy doesn’t involve the foreswearing of resentment, but only the withholding of punishment (so, to borrow from Markel, mercy seems to involve some overt act or restraint, forgiveness can in principle be done without anything overt). In tying mercy closely to the withholding of punishment, I may be conflating it with “pardon,” but for the purposes of this note, that’s fine. So mercy is properly considered a virtue within a juridical framework; forgiveness is more purely “moral.”

I take it that mercy can be granted for all sorts of pragmatic reasons: you may need to cooperate in the future with the person who’s wronged you, the punishment may be costly, and have no deterrent effect, etc. But to see mercy as a strictly strategic virtue doesn’t seem to do justice to the exalted status we give to it. To be sure, a pragmatic virtue is still a virtue (prudence is a virtue after all), but one would have thought mercy granted would be virtuous in its own right, not merely as a means to some further end.

Nor is it clear that giving legal officers discretion in how they punish is enough to capture the virtue of mercy. Merely allowing judges leeway in deciding the harshness of a particular sentence, or to give police officers the option to pursue or not to pursue certain criminals. In fact, these methods of discretion, especially in the case of judges determining sentences, can be used to further justice rather than mercy – by making the punishment more accurately reflect what’s due from the wrongdoer for his crime. When a judge does this, he’s simply using the law to further the demands of just punishment. Likewise, in the case of giving police officers room to decide what crimes they’ll go after, this needn’t be about being more or less merciful, but only about being careful about the use of scarce social resources. Here, we shouldn’t call “merciful” what is basically prudence (unless we take mercy to be a purely pragmatic value, something I want to urge us against).

This is why I find somewhat confusing Whitman’s discussion of mercy in Harsh Justice. He contrasts mercy with harshness, so that the more “harsh” a criminal law regime is (say, it punishes for morals offenses, or it lets few offenses go unpunished, or it gives inflexible sentences), the less “merciful” it is. I think making the contrast this way confuses things – it seems better to contrast harshness with justice, rather than with mercy, at least in many of the items Whitman lists as making a regime more or less harsh. For example, Whitman writes of “harshness in the inflexibility of punishment” that “this is the harshness of applying unvarying punishment regardless of any sense of the individual deserts of offenders.” Yet it seems to me that if we’re ignoring individual desert, we’re being unjust; recognizing individual desert as the basis of punishment isn’t being merciful, because it’s what justice requires.

Also, the fact that some criminal law systems have morals offenses, and some let few offences go unpunished – these factors seem to be quite different than mercy. With morals offenses, there is the separate debate of whether in fact there should be any morals legislation – whether this violates privacy, etc. To have or not to have morals laws means settling this debate, rather than deciding to be merciful or not. And when few offenses go unpunished, there are two questions here. First, what particular offenses does the particular regime designate as criminal? If the offenses are all ones we recognize as offenses, then lax enforcement is a problem, not a virtue. Second, we need to ask: for what reasons are these offenses going unpunished? The primary answer to this, I would think, is because of scarce social resources, rather than the mercy of the police: and again, in this case, it’s discretion that’s being invoked, not mercy.

At the same time, it’s true that when we give leeway to judges in deciding sentences or to police officers in determining which crimes to go after, we are allowing space for mercy to be granted. But we should be clear about what this involves: with the judge, it means handing down a sentence to an offender that is less than he deserves; with the police officer, it means not pursuing someone who has engaged in a criminal act (and not for reasons of scarce social resources). And these two things seem to be straightforwardly violations of justice, because those who have done wrong aren’t getting punished as they should.

The trouble is that when mercy is granted in these cases, it can sometimes seem to be a good thing, and not just for pragmatic reasons. Mercy, I want to say, can be a virtue in its own right. But giving an account of why it is a virtue, I think, is very hard to do. We seem to be left with an empty space needing to be filled in. Perhaps this is because mercy is a theological virtue, supposing a metaphysics we’ve since outworn. Yet, as may be the case with many virtues, transposing mercy into a theological key merely puts the problem on a different level; it doesn’t solve it. For when we counsel, “judge not, lest ye be judged,” aren’t we turning mercy into a pragmatic virtue? So the problem of mercy as a virtue in its own right, as something intrinsically good, remains.

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