"no harm, no foul"
Friday, September 26, 2003
WHAT DOES IT MEAN TO BE “POST-METAPHYSICAL”?: Seyla Benhabib, in her paper for the University of Chicago Political Theory Workshop, makes a distinction between a “metaphysical” and a “post-metaphysical” justification for rights. She herself favors a post-metaphysical justification, which she believes is superior to Kant’s which (she says or at least implies) is objectionably metaphysical. Her brief comments on this matter raise two questions, (1) what does it mean to be post-metaphysical as opposed to metaphysical? (2) Why is being metaphysical bad? I begin with a brief meditation on the latter question.

My worry is that metaphysical too often becomes something like a cuss-word, something we want to avoid; moreover, something that it is obvious that we want to avoid. I am sympathetic to this use in one respect, because sometimes, to use Wittgenstein’s metaphor, positing some metaphysical object or another to solve a problem doesn’t really end up solving the problem, it just acts as a “fifth wheel” which turns along with the vehicle, but itself doesn’t do any work actually propelling it.

But in another use of “metaphysical” as cuss word, I am less than sympathetic. Here, being metaphysical just means “not fitting in with the scientific world view.” But why should we accept the scientific world view just like that, without argument? Here “metaphysical” has sort of a policing function, where we’re encouraged to sniff at those things we don’t like, because they are unfashionable. This is mere prejudice.

Benhabib says that a “post-metaphysical” justification of rights will differ from Kant’s in t hat “instead of asking what each could will without self-contradiction to be a universal law for all, in discourse ethics, we ask: which norms and normative institutional arrangements would be considered valid by all those who would be affected if they were participants in special moral argumentations called discourses.”

Now, I’m at a bit of a loss to see where Kant’s justification is “metaphysical” in a way that the discourse ethics approach isn’t. Here are some contrasts I do see: Kant’s is formalistic, discourse ethics isn’t; Kant’s is subject centered, discourse ethics is “communicative”; Kant’s is abstract, discourse ethics is concrete. Etc., etc. These contrasts may be more or less fair to Kant, but it is a least clear to me what they might mean.

Kant, of course, is committed to their being a noumenal world, and it’s fine to call that metaphysical. But it’s unclear to me, in Benhabib’s brief reconstruction of Kant, why the noumenal has to fit in at all – why Kant can’t be read, in John Rawls’ phrase, “within the canons of a reasonable empiricism.” Kant in this guise, is just proposing a test we put our maxims through, to see if they are valid for all. This seems to be exactly what discourse ethics also proposes – to be sure the test is different, but it isn’t any more or less metaphysical. That’s where I get confused.

Indeed, one might even try to close the gap between Kant and discourse ethics by saying that the test of “validity for all” just is something like testing for what could be willed without contradiction. Indeed, even to suggest that closing this gap might be possible (whether or not it can in fact be done) goes a long way towards removing the hint that there might be a “metaphysical gap” between Kant and the discourse ethicists.

This is a small part of Benhabib’s paper, but I do see it as part of a larger trend, where “metaphysics” no longer describes a category of thought, or a kind of proposal, but is instead employed mainly as a term of abuse. I have no particular love for metaphysical entities, but I wish people would be make it clear what we are “post” when we have gone “postmetaphysical.”

BELIEFS AND HABITS, BELIEFS VS. HABITS: I’ve been thinking the past few days about a particular philosophic conceit (not necessarily one that is shared by many philosophers, but it is a conceit borne of philosophy): that getting at the meaning of life, or finding happiness, is in the main, if not entirely, about having the right beliefs. Thus one needs to know how the world is really, or what morality really demands of us, in order to find fulfillment in life.

Stated baldly, perhaps, this is obviously wrong. There is more to life than having the right set of beliefs, there are also having the material conditions of life, the social conditions, etc. But I think beneath this, the philosophical conceit says that none of these things will be sufficient if one has false beliefs about the world, about morality, even about the meaning of life itself.

Consider another picture, that puts priority not on what one believes, but how one lives. I would put this by saying that having the right set of habits – no matter what one believes about the nature of the universe, about God, about morality, even about the meaning of life – may be the key thing in whether your life is in fact a fulfilling one (or at least perceived by you to be fulfilling; I’ll put off “objective” measurement of fulfillment for another day). What you believe, on this picture, is secondary, and perhaps not relevant at all. If you lack a certain sort of upbringing, and a certain sort of structure in your day to day life, the right beliefs will be impotent.

This might be read as the point of some recent work on “virtue ethics.” But we should be clear. There is theoretical virtue ethics, which works on trying to analyze what right action consists in. The verdict of virtue ethics here would be something like morality consists in behaving as the virtuous agent does, rather than acting according to the moral law, or maximizing pleasure. The virtue ethicists may be right about this, but this is mostly a theoretical matter.

But there’s also practical virtue ethics. I find that most writing about this type of virtue ethics is in self-help books, where you are told what habits you need to get into, what you actually need to do, to live a meaningful life. How rare it is that one will read a theoretical text on virtue or morality and be moved to change how one actually lives day to day. Now, one may remain unmoved by any number of self-help books, and there assuredly are some very bad ones, but there is no question that the aim of these books is to change the way you live your life – and the best of the genre work on changing your habits, not your beliefs. If they write about what beliefs you should have, my sense is that this writing is merely instrumental: that you can throw away the those beliefs once you have successfully habituated yourself.

Andrew Solomon, in his great book on depression, “The Noonday Demon,” makes a similar point, I think: what seems to shake people out of depression is not some particular religion, or some particular mode of therapy, or even some drug (though he acknowledges in many cases the right medication will be a condition of getting better). Rather, what seems to help is routine and structure of almost any sort, even of the most absurd sort – such as taking one’s pills in exactly the right order, and going to all sorts of complicated calculations to find just the right amount of medicine x. This would be a surprising result if we felt that right beliefs should come prior to habits. Here habituation seems to be the key no matter what the underlying belief.

This may also explain why writers, who have little structure in their day, can be so prone to depression and feelings of meaninglessness. And perhaps it may show why having even a less than fulfilling job will still make one happy, to the extend that the job becomes something that gives form to one’s day: that one is not just left drifting. Some philosophers talk about how “action” is prior to “thought.” Could this be part of what they mean? And do their own lives – lives dedicated to thought – betray this deeper insight about thought and action?

Tuesday, September 16, 2003
SPORTS TEAMS AND PARTIAL LOYALTIES: Comments on two stray remarks picked up reading two different articles. In the opening few paragraphs of Cass Sunstein’s ssrn.com paper on “Moral Heuristics,” Sunstein wonders why we value loyalty to sports teams, when in fact they are just collections of strangers. Later on in the essay, he considers that loyalty might be a proxy for more “moral” types of loyalty, i.e., if you show dedication in this instance, you may be signaling that you’ll be more reliable generally, more prone to stick with people even when the going gets rough.

This strikes me as a reasonable enough empirical proposition. But it seems just as reasonable to say that sports loyalty may be essentially misguided, and so offers no or even a negative signal about one’s trustworthiness in other matters – it may signal that you get obsessed with minor things, and hold onto irrational attachments. Loyalty to sports teams qua collections of strangers shows lack of judgment.

So the argument about loyalty for sports teams as a proxy for other types of loyalty seems, at least conceptually, a wash. I’d be happier with an argument that showed that loyalty to sports teams was intrinsically valuable in itself, perhaps as a form of civic pride, or in return for the many happy moments the team has given you. Further, a sports team is no more a collection of strangers than, say, a university or a company. Yet we prize loyalty to these bodies – because we sense that they are more than just the individuals that constitute a given team: they contain a history, a legacy, and we want to be faithful to that (this is what sustains us even when the team is losing, and we think of switching our allegiance to a winning team). If we question why loyalty to a sports team is a good, I wonder if we open the door to questions about institutional loyalty in general – why be partial to one’s university, one’s company, one’s city, one’s nation?

This gets me to the second remark I want to comment on. In an article on the moral sentiments, Justin D’Arms and Daniel Jacobson have a footnote where they say something to the effect of: “it’s not as if we root for our favorite sports team because we think they are somehow intrinsically good, or at least more so than the other team.” This strikes me as superficially correct, but it may disguise a deeper truth. I think maybe on reflection that we do, in some sense, think our teams are “good.” We think this because, if we spend enough time watching them, we get to know the individual stories of the team members, about the ups and downs of the team, and the challenges they’ve had to overcome to get this far – and so on. We construct a narrative about the team so that, somehow, we come to feel that they “deserve” to win.

Note that we might also apply the D’Arms and Jacobson footnote to other attachments, say, attachments to one’s nation – we could ask, for instance, whether we root for our nation because we think it intrisically better than other nations. Here it’s a little trickier, because we may feel that our nation is intrinsically better than other nations, not because it is ours, but because it embodies certain values or institutions which we think ought to prevail.

With sports teams, we are more likely to say that we are rooting for a particular team because it is “our” team. Yet it is also the case, as I argued above, that when we stick with are team, we are liable to find things that make our team worthy of winning not just because the team is “ours.” We seem to get into rooting for them for partial reasons, but then that grows into finding more objective reasons for the particular merit of the team.

Why do we love our children more than other people’s children? Because we think our children are intrinsically good, and other people’s aren’t? No. But, at the same time, I don’t think we merely love our children because they are ours. We find qualities in our children which justifies our attachment to them.

Another interesting thing about sports team loyalty. The narrative we construct about why our team deserves to win will differ with each team and set of circumstances. Recall how people were rooting for the Yankees to win the World Series after 9/11. There was some sense that the Yankees deserved to win because New York had suffered so much. The opposing narrative might have claimed that Arizona’s eventual victory was a triumph of managing and grit over money. Which narrative was superior?

I wonder if which narratives we find to be compelling depend on the sports team which we root for. The claim would be, then, that our team somehow constitutes what we think of as “deservingness to win.” With the Cubs, they might deserve to win because they haven’t won the World Series in so long. But why should this be considered valuable, as a reason for the Cubs to win? Weirdly, the loyalty seems to precede the narrative, and to give it its shape.

A final note: we might want to dismiss much of the above and say, simply, that “the best team deserves to win.” But what does “best” mean? The team with the best pitching, the best hitting, the best overall package? The team with the best sportsmanship? How do we define these notions? On any given day, a team may be better than another along any of these axes. As with other cases, “best” is too vague, too empty of content – so other values rush in and give it substance.

Sunday, September 14, 2003
CONSCIENCE: Conscience sits in a sort of middle position in moral psychology. On the one hand, conscience can appear as a purely descriptive, psychological term. Especially post-Freud, we may be apt to treat this as the main meaning of conscience. On this picture, conscience is the “super-ego” or the internalization of one’s early authority figures. Conscience here has no prima facie normative weight, and indeed the goal of therapy might be to get one to move away from heeding one’s conscience – as treating its demands as overly harsh, and restrictive, and as merely the residue of “what Daddy said” you ought to do. Conscience might figure especially in cases of sexual guilt, as an irrational holdover of early parental taboos (as in, I know by doing that I wasn’t doing anything wrong, but I still have a bad conscience over it).

But conscience can also be seen in a much more avowedly normative way. Actually it can figure normatively in one of two ways, which we can call formal and substantive. The substantive take on conscience would be to equate conscience with what morality demands, so that the voice of conscience turns out to be the voice of morality. I have a hard time with this substantive reading, because it too strongly separates it from the psychological/developmental story of conscience. On the substantive, normative reading, one’s conscience can never be in error, because it just is the voice of what morality requires. This strikes me as contrary to ordinary usage (not that this is the last word on the matter, but it is the first word).

I prefer the “formal” normative reading of conscience to the “substantive” one. On this interpretation of (normative) conscience, acting on your conscience is just acting on those reasons one thinks, all things considered, are the best ones. Here there is the possibility of “what conscience tells you that you ought to do” and “what morality requires you to do” diverging. You can act on your best reasons, or at least what you perceive to be your best reasons, but still do something morally wrong.

If we take the normative dimension of conscience to be along these “formal” lines, an interesting question emerges: what is the value of following one’s errant conscience? Do we want to say that one always ought to follow one’s conscience, knowing that it can sometimes go wrong? There seems to be something bad about not following one’s conscience, because it means going against what one perceives to be the best reasons in the particular case. Yet at the same time, not following your conscience could, in some cases, lead you to do the right thing.

Note that if we stick only with the psychological story about conscience, we don’t get this dilemma, because read purely descriptively, conscience has no claim on us: there’s no reason to follow conscience if it’s just a matter of what you’ve internalized early on. There’s no reason to think that one’s early authority figures were right.

Where the dilemma (follow conscience even when it might be in error) emerges is when we get to the definition of conscience as “one’s best reasons for action, in a particular case.” It’s true that one’s early authority figures will contribute to what one sees as the best reasons in a case – but they get their normative status only when the enter in as the “best reasons as I perceive them in this case,” not merely as “the reasons I see myself as having because I was raised in a particular way.” How reasons go from being the latter to the former is an interesting question.

It may seem that the dilemma I’ve been trying to raise (whether to act on conscience given that conscience can err) is a false one, or one that may never arrive: how could I not follow those reasons which seem to me best in this instance? If I don’t follow them, I’m acting akratically, irrationally, and so it’s not clear that even if I do the right thing by disobeying my conscience, I shouldn’t get moral credit for it, because the act is not, in any full sense, “mine.”

I’m not entirely sure about this, but I’ll let it pass. We can reformulate my dilemma, along these lines: what’s the value of following an errant conscience when that conscience leads you to do something morally wrong? This bears some relationship to my post on “integrity” below, where I suggested that there was no intrinsic value to integrity. The same reasoning would lead me, here, to say that when an errant conscience leads one to do wrong, there is no value to following it: the content of the conscience is what matters. You don’t get points for following an errant conscience into wrongdoing.

Now I’m not so sure about this conclusion. To answer it, I think I’d need to get a better grip on what an “errant conscience” is. For there are a lot of ways one can develop a faulty conscience, and be culpable for that. So if one is culpably ignorance about some facts or another, or even about what a certain moral principle is, then one’s errant conscience hasn’t been formed rightly – you’re acting according to a conscience that’s been misinformed. And so there might be no value in following this conscience, but mainly because it’s a conscience that one has been culpable in forming.

What I want to say is this: if you’ve done nothing wrong – or I guess I should say, nothing unreasonable – in forming one’s conscience, there is an intrinsic worth to following one’s conscience, even if it leads one into moral wrongdoing. Now, it may be that a reasonably informed conscience will never lead one into wrong doing. Here the “formal” and the “substantive” readings of conscience merge, in the sense that I seem to be saying that a procedurally correct conscience (one that collects the facts and reasons in the right way) will always be led to the right answer in a particular case. Yet it seems to strong to say that this will always be the case, i.e., that a reasonably informed conscience will always lead you to the right answer.

So: in those cases where it doesn’t, even though you do the wrong thing, you still deserve some moral credit (or it may be better to say that you are absolved of moral blame). Perhaps my objection to the “integrity” case below is not that there is no intrinsic value to integrity, but that Judge Moore has culpably failed to heed certain relevant facts and principles. He has the integrity of following a (culpably) mis-informed conscience, which is not true integrity at all.

MORE ON RELIGIOUS PLURALISM: In an older post, I wondered what religious pluralism might mean to the rationality of religious belief. If there are many religious traditions, the members of whom are all (seemingly) warranted in their beliefs, doesn’t this say something about how rational or irrational one’s particular religious beliefs are? In my earlier post, I confessed to wanting to say that religious pluralism tends to suggest that religious belief is irrational, but I couldn’t think of convincing grounds that would justify this claim.

I recently read an interesting short article in the latest “Faith and Philosophy” that spoke to this question, and gave me reason to believe that there might be something to be said about religious pluralism making religious belief (or better, belief in a particular religious tradition) less than rational. The argument goes something along the lines of an analogy to medical data. Suppose you agreed that you had some medical data which said something about condition X; you had good reason to believe in the data. However, let’s say that another hospital also has data which says something about condition X, but what it says is, if not the opposite of what your data indicates, says something very different.

Now, here’s the key move: let’s say you concede that the doctors in the other hospital are just as warranted in believing their data as you are in believing yours. The article argues that the rational thing to do in this case would be to suspend judgment on what we can say about condition X: there is conflicting data, which both sides are warranted in believing, so we should take an agnostic stance on condition X.

The analogy spelled out, is this. If we say that those in religious traditions other than are own are as equally warranted in believing their religious truths as we are in believing ours, then the right response would not be to stick with one’s tradition, but to be agnostic about which tradition was the right one.

My earlier post intimated that in the case of a stalemate, where each side was admitted by the other to be justified in believing what it did, one could go on, rationally, in preferring one’s religious tradition to those that opposed it. This analogy says maybe not, that one’s preference would be groundless, and that it would be more rational to suspend judgment.

This strikes me as a compelling point, but open to the following rejoinder: what if I think that, in fact, other religious traditions aren’t warranted in believing as they do? Then aren’t I rational in believing my religious tradition is superior?

Well, yes – but then this is just to deny the key point of religious pluralism, which is that other faiths are as equally warranted as you are in believing what they do. So now we’ve got the religious believer in a kind of dilemma, where he either denies religious pluralism (because he has specific grounds for claiming other traditions are not rationally justified in believing what they do) or he embraces it. In the latter case, he loses warrant for saying that his tradition is superior.

I have a feeling I’m missing something in all of this argument. Perhaps I’m loading the dice by assuming a controversial point about pluralism, i.e., that it means conceding other traditions are rationally warranted in believing what they do. (Note: pluralism in my sense is not that all religions are true, but rather that there are many religious traditions in which the members are rational to believe as they do. It is compatible with this sense of pluralism that religious traditions contradict one another.)

I also wonder if religious exclusivists (they think only their tradition is true) who are also pluralists in my sense (they think other traditions are warranted in believing as they do) take it on faith that their tradition is the true one, and so considerations of “rationality” or “reasonableness” don’t have a place.

But it was my impression at least that many exclusivists cum pluralists (in my sense) wanted at least to be immune from the charge that they were being unreasonable in believing as they do. If the argument I’ve canvassed from the recent Faith and Philosophy is on the right tract, they lose this prima facie reasonableness, because the default reasonable position is agnosticism.

AN ARGUMENT FOR FREE WILL … NOT: There’s an argument for free will that, on its face, seems very convincing – but it also seems to be too much of a good think. So if you’re a philosopher, you immediately suspect some trick or another. That’s the rule: if you get a substantive conclusions out of minimal premises, somehow, somewhere, the substance has been illicitly smuggled in.

So here’s the argument for free will. Suppose that determinism is false (odd way to start an argument for free will, but still). Now, does the fact of determinism make a difference in how you go about deciding what to do. That is, does the truth of determinism figure into your deliberations about what to do next? How could it? Deciding to do things doesn’t work that way – in that respect, it’s different than prediction. And I can’t just predict what I’m going to do and then do it. It seems I have to actually decide to do something. From the first person perspective, I can’t help viewing myself as a free being, faced with the necessity of making a chose. The truth of determinism doesn’t make me passive, or remove from me the burden of having to make a choice.

The argument, in more fancy lingo, questions our ability to look at our own lives “from sideways on.” That view, as I understand it, might be the view of an omniscience scientist, who, from his third-person perspective, might be able to look at our lives and, given the truth of determinism, tell us what was going to happen next. But the point is that we don’t inhabit that third person point of view; we are condemned to the first person point of view. And from that perspective, we do have to choose – even if determinism is true.

Robert Pippin, in his essay in “Reading McDowell,” refers to this as the “I don’t know how freedom is possible but as agents we are simply stuck with the assumption” approach. I like this name, although it is rather long. And the argument does have its superficial plausibility – it feels like we are “stuck” with the fact of our freedom, something which doesn’t change even if we admit the truth of determinism. Korsgaard briefly makes this argument in her Sources of Normativity, and Hilary Bok’s book “Freedom and Responsibility” is an extended defense of it.

Let me make two broad claims about the argument. We should first note how very narrow the scope of this argument is. It, first of all, only applies to you and your freedom. From your perspective, only you can know that you are free (because you have to decide what to do, you can just let things happen to you). It doesn’t entail that anyone else besides you is free. At the very least, we need another argument to show that other people are free – because for all we know, only we are free (we can look on other people from the third person perspective).

It gets worse. For what it shows is that you are free only at this moment, making this decision. After you make the decision, you can look back at your past life and see that it was determined. You are stuck with the assumption of freedom only in the present, but once you get past the present, you are no longer bound by the assumption – you can look at all your past choices as determined ones.

So the actual conclusion of the argument isn’t very robust – it seems just to show us a weird fact about us, that we seem stuck with the perception (illusion?) that we are free in making our moment-to-moment decisions. We don’t have to ascribe this freedom to others, or ever to our past selves.

I want to make a second broad claim about the “I don’t know how freedom is possible but as agents we are simply stuck with the assumption” approach, which makes me wonder even about our moment-to-moment freedom. I wonder if this is just something we have learned to think about ourselves, rather than something that is forced on us by the supposed necessity of the first person perspective.

In Philosophy and the Mirror of Nature, Richard Rorty suggests that the idea that our reporting on our own mental states is incorrigible (we can’t be wrong about them) is not an intrinsic fact about them, but rather a cultural artifact. He makes a comparison with the supposed authoritativeness of the Supreme Court as to what the Constitution says. The Court is not final because it’s authoritative, rather, it’s authoritative because it’s final. And it’s finality is an institutional fact, a power we collectively have conferred to the Court.

I wonder if this sort of freedom, the freedom we are stuck with, is also conferred on us – that we are treated by others, as being free in making this choice, of having free will when faced with a decision about what we are to do. Freedom here isn’t a matter of what we can do, but a matter of what people allow us to do, and consider us to be “authors” of. To step back a bit, why couldn’t we take a third person perspective on our own wills, and view our decision making as a matter of prediction? Is there really an intrinsic limitation on looking at ourselves “sideways on” or is it more a cultural construct?

I don’t know how far I can push this point. But I think I can make it a bit more modest, and in so doing, make it a little more convincing. If all we can get (as my first broad claim suggested) from the “we’re stuck with this assumption” approach is the freedom of the moment, then it seems clear that this isn’t the kind of free will we want. It doesn’t seem thick enough for us to ascribe responsibility, say (remember: what you get with moment by moment freedom is just a decision; and once you’ve made that decision you can go back and see that it was determined, at least if determinism is true). Yet we do want to say that your responsibility extends beyond your choices in a given moment.

And this extension of responsibility, of what we hold other people accountable for, is a matter of cultural construction – because we can’t get it from the “we’re stuck with it” argument. That argument turns out to be just too narrow for any useful ends.

Saturday, September 13, 2003
PUNITIVE DAMAGES: A couple of naive comments, prompted by reading (probably misreading) a draft of a paper that tries to defend “punitive” damages as being “retributive.” I confess to a bias of keeping retribution in the domain of criminal law, and here’s why I think so.

Retribution, in whatever form it comes in, and there are many forms it can come in, has at least this feature (I think) – that it tries to achieve a “balance” or “leveling out” between two parties, where a crime or a wrong as upset the previous balance or level. Take two classic examples. First, there’s Herbert Morris’ theory, where the criminal gets an unfair benefit by committing a crime and this has to be negated, or leveled out, by putting an added burden on him. Things get balanced by the punishment of the criminal. Second, there’s Jean Hampton’s expressivist theory, where what is put out of wack is perception of social worth. The criminal announces, by his crime, that he thinks he’s better than another person, and this perception has to be counteracted by punishing him in some way, that is, showing that he’s not superior to the person he’s wrong.

A lot of questions, of course, remain, about how things get balanced and what exactly gets balanced. But put these to one side, because my concern is to ask what and how things get balanced out in a punitive damages case – supposing we want to make an analogy between retribution in the criminal case and the granting of punitive damages.

My sense is that punitive damages can’t serve a particularly retributive function, because they are what is paid over and above the compensatory damages – precisely those damages given to the plaintiff to put him back in the condition he was in prior to the wrong by the company. If there’s anything that counts as balancing things out, it’s these, the non-punitive damages. The punitive damages are just gravy. Whatever function they serve, it doesn’t seem to be purely retributive, at least in the sense of “retributive” I’m after now.

Next, there’s the possibility that we might want to add punitive damages to compensatory damages because the defendants have done something recklessly or intentionally wrong. On this way of looking at things, we have the compensatory damages on the one hand, which level out the purely monetary damage done to the plaintiff. On the other hand, there are the punitive damages, which are designed to “balance out” the fact of intentional (or reckless) wrongdoing. This way, the punitive damages do serve a retributive function, because they match up not with the monetary wrong, but with (let us say) the expressive wrong.

I suppose one could look at things this way, but it strikes me as a non-starter. For one, why should the punishment in this case be more money, and not jail time? Although I won’t argue it here, there’s at least a prima facie sense that you can’t simply pay your way out of punishment for a criminal wrong: money and jail time, in this way, seem incommensurable. Second, why should the punitive damages be paid to the plaintiff? If we were more strictly retributivist, we would want the money (if we agree that monetary damages are to be paid) to go into some federal fund, rather than to the victim per se. Why? Consider the analogy with criminal law. The punishment for the wrong is presumed to be not just against the individual, but against society. So the punishment represents the debt the wrongdoer has to pay to society, and not just the individual (that’s why the state gets involved, after all). We don’t think it fit punishment that the wrongdoer becomes the victim’s slave, say. Yet this seems to be what is going on in the retributivist understanding of punitive damages.

I have to same I’m almost completely innocent of the law on punitive damages. But it strikes me that the main purpose of punitive damages is deterrent, not retributive.

Monday, September 01, 2003
MONEYBALL: Michael Lewis’ new book is a great read (though I still think that “Trail Fever” is his best by a long shot, and even “Liar’s Poker” is a bit better than this one), but I have a couple of objections to it.

First, the emphasis Lewis puts on “objective” statistics is perhaps helpful as a corrective, but it goes too far. As anyone who watches baseball regularly, and as Billy Beane implicitly concedes by the fact that he refuses to watch games, games are extremely emotional affairs, decided in many cases by which team has the momentum on its side. To focus too much on statistics is to ignore the fact that particular moves that may be bad on the whole and in the long run, may nonetheless be critical in shifting the momentum of the game. Here I think of the use of the bunt, which Lewis says is overrated. At the same time, getting a runner in scoring position might be a big thing for a team – it might raise its confidence, it might discourage the opposing pitcher. And this may be enough to alter decisively the direction of the game.

None of this, certainly, goes against the use of statistics in deciding whom to draft or whom to play. But isolating statistics, and presenting them as the whole rather than part of the whole, is unfair. One of the most pitiable characters in the book, Art Howe, gets portrayed as something of a robot manipulated by Billy Bean, and in principle dispensable. Yet it is the managers who make the key calls when it comes to what to do when the team is down and you need to get the momentum back on your side – a skill that requires judgment rather than a proper knowledge of statistics. I’d even hazard to say that managers are the ones who are key to winning playoff games, when emotion takes on a greater role (which might explain why the A’s have trouble in the playoffs).

Second, Lewis gives his book a sort of morality-tale flavor, about how money isn’t everything and if you have enough ingenuity and knowledge, you can beat the big spending teams. But this can only work so long. Lewis gets at this when he paints the Yankees as basically a team that can buy out the star players of other teams. So even if you find a statistic that everyone else ignores, and if you draft players according to that statistic, it still remains the case that the big money teams can buy out the players once they start flourishing. To put it another way, the Yankees can use the A’s as their farm system, finding and developing their future stars. So money still rules, at least in the long run.

I will say, however, that Lewis’ book has made me much more skeptical about the conventional wisdom proffered by color commentators (such as, “so and so is a good ‘clutch’ hitter”). At the same time, the appeal of making baseball more like a science wanes after a while, and one longs again to be caught up in the emotion of the game.

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