Juridical Coherence

14.2. What's morality for?—Integrity versus conformity

2012-01-29T19:29:00.000-08:00

Previous in series: 14.1. A habit theory of civic morality

This series’ topic has been the biological function of moral principles, in the sense that the circulation of blood is the biological function of the heart. (See Ruth G. Millikan (1984) Language, Thought, and Other Biological Categories.) I claim moral principles function to create habits that minimize decision fatigue by making automatic the otherwise effort-consuming subordination of short- to long-term interests. Automatization comes at the cost of choices that from a self-interested perspective are less than best—when you omit considering the usefulness of the moral habit itself. Although automatization is costly, it’s worth its price, as proven by the harsh consequences psychopaths face due to their disability for adopting moral principles to form habits of integrity.

I introduced the habit theory of morality to explain—without supposing that moral judgments are objectively true—why we do what we ought, but most moralists with naturalistic world views see moral principles differently. Their view—as will be seen—doesn’t successfully explain why we ought to act in accord with any moral principles, and it loses on general merits as an explanation .

According to my habit theory, the only incentives for conforming to moral principles are avoiding effortful decision-making, for your present benefit, and (much more importantly) strengthening or at least not weakening the habits constituting moral character traits, for your future benefit. The moral sentiment, guilt, is anxiety about your moral integrity, so the incentive to avoid guilt is only strong to the same degree that the prudential need to maintain integrity is threatened.

The dominant conception, on the other hand, is that ultimately we conform to moral principles to avert guilt, conceived as an automatic reaction to our moral transgressions. Moral principles, on the dominant conception, are installed during the process of childhood socialization as an internal policeman serving the greater society. Freud’s theory of the super-ego is often taken as a prototype of this conception, although the super-ego is a mostly unconscious structure responsible for neurotic guilt, whereas the principles of explicit morality reside in Freud’s less-discussed ego-ideal. The role of moral affects as prime movers of explicit morality can be seen more clearly in neobehaviorist theories about learning moral values. John Dollard and Neal E. Miller explained moral values as classically conditioned responses, which the culture can arrange because they’re formed by the mere temporal contiguity of stimuli. (Dollard & Miller (1963) Personality and Psychotherapy: An Analysis in Terms of Learning, Thinking, and Culture.) Philosopher John S. Wilkins incidentally expresses this conception of conscience, “If you ever contemplated a murder, you would dread the horrible memory of your victim’s last moments or lifeless corpse.”

A theory of moral principles as society’s beachhead within the individual might explain how moral principles influence behavior, but it doesn’t explain why we should conform to them, since they impede their bearers. The theory unwittingly implies you should try to escape the grip of any moral principles, which offer only guilt pangs. It doesn’t counsel cultivating your moral character.

The dominant theory defies evolutionary considerations, where today’s moralistic tenets purport to benefit humanity rather than kin. Society’s beachhead prevails as the leading conception of morality much as the evolutionary selection of entire species for complex adaptive traits persists in the popular mind.

14.1 A habit theory of civic morality

2012-01-11T13:35:00.000-08:00

Previous in series: 14.0 Why do what you ought?—A habit theory of explicit morality

The morality that primarily concerns legal theory is civic morality, the morality used to ground political argument. Even the possibility of politics can seem hard to understand without the existence of objective moral judgments. How can we agree on or even argue about fundamental policies without an external standard of correctness? The answer is twofold. First, we don’t necessarily agree or even argue. We assemble majorities or effective pluralities not necessarily underwritten by fundamental agreement. Second, when many citizens agree on the applicable morality, their convergence—much as judicial agreement obtains despite the absence of any theory of constitutional interpretation—is due to influences other than correspondence with an external standard. This essay will propose a mechanism responsible for a limited moral convergence.

The contrary view—that morality is real, moral facts true—probably arose with the universalistic religions. When religion began to wash up and its natural moral laws became uncompelling, the movement for legal codification partly filled the breach. A universalistic written law supported the illusion that political disagreement would be resolved under common moral premises.

The illusory need for a true political morality survives, in some small part because of the absence of challenge from an alternative theory of political morality. The main candidate explanation is common moral indoctrination within a culture, but indoctrination fails as a candidate for the source of moral agreement in politics because people do not automatically apply the morals they are taught, even if they believe them true. Consider Biblical morality and the extent to which people choose those teachings they find convenient and disregard the rest. Self-interest isn’t adequately explanatory, either, since false consciousness is widespread, and the ways are limitless for a person to slice his self-interest in moral terms A third explanation, depth psychology, may explain why moral precepts are sometimes applied inaccurately, say, why a truth teller is thought a liar; but it doesn’t explain the terms on which moral judgments are made—why truth telling is or isn’t the criterion in the first place.

Since most of the time few lead lives centered on politics, the habit theory of explicit morality must use the moral habits important in citizens’ ordinary lives to explain the moralizing they apply to politics. Per 14.0 , personal morality is a tool for creating and strengthening habits of forgoing narrow, short-term self-interest. Political morality usually favors those same habits useful in personal (nonpolitical) life. This practice doesn’t make for intelligent politics, since personal morals—being habits that serve quotidian needs—are often ill-adapted for politics. Some examples will be considered, but note that the direction of influence can reverse at those rare historical junctures where masses of people become deeply involved in politics.

Recently, social psychologists have studied the differing political morals of liberals and conservatives. Five bases for political reasoning have emerged: liberals focus on values of welfare (or harm avoidance) and fairness; conservatives weight those factors less and include values of loyalty, purity, and respect. Some clues about how these values emerge from ordinary life are provided by societies where the dominant values belong to the conservative cluster. In these traditional agrarian societies, respect and subordination figure large in most people’s lives. Although the demographic correlates of liberal and conservative political thinking haven’t been mapped out in modern societies, the habit theory predicts that political moralities are bolstered by different styles of life, which make one moral system or another personally adaptive. Geographical mobility, for instance, may make habits of loyalty less advantageous. The fact that conservatives tend to deride liberals and radicals as “rootless cosmopolitans” bears this out. Another possible connection is that rural areas require more concern with personal cleanliness; hence, habits of purity are stronger.

One of the weird developments in contemporary politics is the huge Tea Party movement within the middle class to reduce the federal deficit, a movement that hates President Obama, more than any reason, simply because he spent a lot of federal money trying to provide an economic stimulus and remove an economic obstacle. Although polls report that citizens are more concerned about jobs and the economy than the deficit, the sheer degree of concern with this technical question of macroeconomics remains staggering and bewildering in that austerity undercuts recovery. This isn’t a classic tax revolt: taxes haven’t been unusually high. What’s weird about caring so much about the deficit is that most economists think austerity will worsen the struggling economy. The concern with frugality is a reflex, a moral habit forged in the personal battle to control the family budget, extended to politics as a means of strengthening the personal moral habit by rehearsing it. According to my habit theory, you shouldn’t expect that the habit is suitable for government. It arises in personal life and extends to politics as another way, outside the personal realm, to practice the personal moral habit of frugality.

Another movement, Occupy Wall Street, espouses a morality emphasizing principles of fairness, which conflicts with today’s welfarist morality that’s dominant across the political spectrum—the total good of all, lacking regard for distribution. The Occupy Movement contends that the wealth and income distributions are unfair. A certain kind of middle class sector seems drawn to this movement; some have termed it the lower echelon of the elite. Many supporters are members of guild-like professional associations (but not trade unions). Guild membership fashions daily moral habits whose purpose is avoiding transgression of norms proscribing unfair competition. This contrasts with the habits useful to the business executive, whose life creates different ethical sensibilities. Functioning as a team and hierarchy at the same time, executives must show loyalty to superiors. They must resist appetites to sabotage their boss, and they must even take the rap for him. Steve Jobs is called a genius; John Ives, the real designer of popular Apple products, was only able to prosper because he suppressed his resentment that Jobs stole the credit. This businessman’s morality demands intensely loyal partisanship.

Citizens practice their personal moralities in the public sphere because practicing habits useful in their personal lives benefits them personally. But personal moral habits are maladaptive for politics, a reality most obvious when intelligent politics is most necessary. At some point, if the economy fails to recover, moralities adapted to politics will become ascendant—despite the maladaptiveness of political morality for personal life. Then, personal morality will necessarily suffer, as in the case of an intensely political British communist sect, where it is said, “You can trust a comrade with your money or your life, but you can’t trust a comrade with your books or your wife.”

Next in series: What's morality for?—Integrity versus conformity

14.0 Why do what you "ought"?—A habit theory of explicit morality

2011-12-15T13:56:00.000-08:00

Moral judgments are always false

Ultimate moral judgments are always false—not like “Santa Claus exists” is false, but like “Green grows” is: it is false because it is illogical, due to using words outside their range of application. As to “Green grows,” only particular things, not properties of things, can grow; and, analogously, something is “good” only with respect to some purpose. A good hammer is good for hammering; a good move in a game is good for winning; but nothing is simply “good.” What is a good man or a good deed? Good for what?

At the turn of the 20th century, G. E. Moore developed Hume’s conclusion: what’s good or what's obligatory—ought to be done—can’t be derived from is. Moore made the reasoning behind Hume’s discovery intuitive and showed that moral claimants commit a logical confusion, although Moore didn’t regard his argument as refuting moral realism, the objective existence of moral facts. Moore argued that moral judgments, claims about what one ought to do, can’t be restated as factual. Take any moral platitude—you ought not kill, you ought to treat others as you want them to treat you—you can always ask the further question: why is it true, but the question has no meaningful answer. No facts can ground moral ultimates, since, if they did, the moral platitude wouldn’t be ultimate: it would surrender to the supremacy of whatever moral principle links the platitude to factual truth.

The higher reaches of ethical philosophy (meta-ethics) preoccupies itself with finding a naturalistic response to Moore’s demonstration. One proposed solution is to identify morality with a purportedly innate moral orientation, but this answer doesn’t rebut Moore; you can still ask why ought we to do what our instinctual impulses demand? This goes regardless of whether the innate morality is conceived as sparse—for example, starvation is bad; all-encompassing—human flourishing is good; or abstract—whatever complex function our brains “compute” in moral judgments. What we tend to do is no moral argument for what we ought to do; what we inevitably do is even more obviously irrelevant to the moral question.

Explicit morality is a tool for forming habits

An unrecognized problem in rejecting the existence of moral facts conduces to the overwhelming intellectual resistance to Moore’s almost-obvious conclusion. If moral judgments are unnatural, are false just in that they can neither imply nor be implied by facts, how can moral beliefs play any role in directing behavior? People seem to accept moral realism because they think that morality plays a role in their natural lives— they donate to charity because they ought to—but why would someone do something merely because they think though ought to do it? The apparent answer is that they’re hypnotized by language; having learned they should do B to get A, they do B when they ought to, failing to notice they have misused “ought” by omitting any context for B’s efficacy, previously set by A, an error that would leave them without any way to decide how hard they’ll strive for B. If you do B because you should, due to its being a means to A, the effort you devote to B and the sacrifices you endure for it depend on how much you want A. If you do B simply because you ought to, how hard do you work at B? How much do you donate to charity because it’s what you simply ought to do? Their making these decisions suggests that people have some way to decide how much weight to give morality. A paradox then arises when the moral judgment gains its force from seeming like an instrumental judgment, but is lacking in just what makes effort apportionment possible. Moral judgments must serve some natural function, some directive function; even moral hypocrisy works only because morality can have some directive effect, which, therefore, must be reconciled with rejecting moral facts.

The perplexity is rooted in a bias favoring belief and desire over habit in explaining behavior. In its basic function, explicit morality is a tool for using force of habit to resist the temptation of narrow self-interest. Consider a typical temptation: students in a packed room taking a multiple choice test, one student peeks at the answers of his neighbor, another doesn’t. Or friends tell one another “true” stories, where one embellishes the facts, another doesn’t. Much ethical behavior is automatic: often, people will avoid cheating or will tell the truth without any thought as to the options. If you want to be a person whose practical morality excludes cheating or telling false stories, you are best off forming the habit. Deciding to take a short-term loss is hard, energy consuming, and unpleasant, and it becomes harder, more energy consuming, and more unpleasant the more often you must decide. Honest people, whatever the lengths and limits of their honesty, are people who have made a habit of honesty. Their honesty is the habit of honesty. The terms of your explicit morality define the kind of person you want to become—the choice itself without moral foundation. (Which is not to say it is “freely” chosen.)

Different moral strokes for different moral folks

Regardless of its content, morality takes different forms. Explicit morality can consist of specific commands, usually negative, such as the Ten Commandments (deontology); it can consist of general goals, such as create the greatest happiness or welfare (consequentialism); or it can consist of virtue prescriptions, such as wisdom, honesty, and generosity (virtue ethics). Given that explicit morality is a species-specific self-control method, not in any sense a set of truths, we can ask what form of morality most effectively serves that purpose. Most people’s explicit morality contains a mixture of these forms. Someone might apply deontology to serious criminal acts, consequentialism to resolving conflicts, and virtue ethics to personal decisions. The advantage of a unitary system is avoiding uncertainty around the edges, from which the agent may suffer both longer decision time and more numerous opportunistic, rationalized judgments.

Which form of explicit morality should dominate to best realize morality’s function depends on one’s central life ambitions. One surrounded with self-endangering temptations to break the law might benefit from deontology; one whose life is involved in balancing the conflicting demands of others—say, a politician, at least of the conventional sort—may benefit from strengthening his consequentialist tendencies; one oriented toward a largely internalized standard of excellence—an academic or, even more so, an artist—may be served best by virtue ethics.

The personal cost of moral realism is inflexibility in choice of moral framework. The inculcation of deontology often accompanies social oppression, one of the reasons religion can serve as the “opium of the people.” Pressures stifling intellectuals may be imbued with consequentialism. Wage earners indoctrinated in virtue ethics may seek to become model employees, despite better serving their greater interest with a morality focused on consequences. Since explicit morality is a tool, as with other tools, form follows function.

Next in series: A habit theory of civic morality

13.0 Worse than college football itself: The oppressive fallout from the Paterno scandal—AGAINST mandatory-reporting laws

2011-11-16T19:29:00.000-08:00

"Political correctness" drives fake astonishment

The aftermath of Penn State’s cover-up of the locker-room statutory rapes will prove that the adage “hard cases make bad law” applies to legislation, not just common law. A Pennsylvania legislator has already proposed tightening the mandatory-reporting laws, imposing on ordinary citizens a punishment-enforced legal duty to report hearsay knowledge on which they might base a suspicion.

Most everyone evinces amazement at the Penn cover-up, but the amazement is itself what’s most amazing. When the Catholic Church would be implicated in a cover-up of childhood rape, it is truly amazing that people are startled that such should transpire within a university football team. “Political correctness” evidently drives the expression of unbelief, and the odor of political correctness is pervasive, as when Warren Olney on public radio felt compelled to issue the caveat that pedophilia and homosexuality bear no mutual relationship—when, in fact, four of five convicted pedophiles choose a same-sex victim.

The issue’s saturation with political correctness is responsible for the absence of any outcry—even a word of criticism—of mandatory-reporting laws. For liberal social engineers, mandatory-reporting laws support using the state to reform the family. But these laws also support the rightist view that authoritarian means are acceptable if they protect the sexual innocence of children and comport with the general proposition that victims lack sufficient “rights.” So, approbation of such laws intersects the Stalinist political correctness wielded by liberals and the fascist "moral majoritarianism," by reactionaries. Is it surprising that this intersection has fostered the incipience of an institution common to Hitler’s Germany and Stalin’s Russia—state-compelled snitching?

Although forced snitching against family and neighbors is repugnant to most Americans—or at least used to be—I haven’t found any explicit arguments against it. Let’s get out of the way one reason for condemning totalitarian snitching, a reason which doesn’t apply to reporting child rapists: they don’t come close to being political dissidents. But mandatory snitching is odious, even when used for a good cause, such a protecting children from predation. Here are the reasons why.

Mandatory reporting violates the reporter's free-speech rights

The first reason concerns freedom of speech, which includes not only the right to speak, but also the right to remain silent. (Wooley v. Maynard (1977) 430 U.S. 705, 715.) While American constitutional law recognizes that freedom of speech includes the freedom not to speak, it hasn’t compiled any considerable law on the subject, a failing that expresses some disregard for freedom-of-speech’s omissive side. While the advantages of affirmative free speech have been enshrined in the “marketplace of ideas” metaphor, as regarding silence, the political poets have been, well, silent; but one clue about how the right not to speak fits into the total free-speech picture is a concept the Supreme Court has used to assess the protection given to religious practices that involve freedom of speech in addition to freedom of religion. The criterion concerns whether the compelled speech compromises the believer’s conscience. (See Christopher R. Pudelski, Comment: The Constitutional Fate of Mandatory Reporting Statutes and the Clergy-Communicant Privilege in a Post-Smith World (2004) 98 Nw. U.L. Rev. 703.)

This concept suggests that what should produce heightened protection of refusal to speak is the same factor—viewpoint discrimination—that is pivotal for affirmative speech. While religious believers are protected when their unique beliefs are implicated, secular people deserve protection against edicts that encroach ordinary viewpoints.

Millions comply with mandatory reporting laws each year, but many more fail to comply. One reason is that reporting clashes with their personal views. I’ll start with an extreme instance, which doesn’t represent the main reason for most people’s noncompliance. The protection deserved by people having extreme reasons should help show why those with moderate reasons deserve it.

A person is entitled to believe that child statutory rape should not be punished. This endorsement of statutory rape is a crackpot view, but the principle that you can think freely is inviolable, no matter how crazy the thought. As long as a person doesn’t act on his wicked beliefs, he is entitled to them. Since the right to think what you like is a widely accepted democratic absolute, it is a unique starting point for bright-line rules—its trespass, a slippery slope. We should not compel people to speak what they don’t believe: we shouldn’t compel people to express a viewpoint or express it in a way that conflicts with their viewpoint. This prohibition applies to cases from pledging allegiance to a flag the pledger doesn’t revere to reporting people for crimes the mandated private reporter doesn’t believe should be crimes. (See West Virginia State Board of Education v. Barnette (1943) 319 U.S. 624 [compulsory flag salute; see, especially, concurrence of Justices Black and Douglas, "laws must, to be consistent with the First Amendment, permit the widest toleration of conflicting viewpoints consistent with a society of free men"].)

Thinking that the sexual exploitation of children is OK is, fortunately, a rare viewpoint, but other perspectives more commonly oppose reporting. Some may believe their duty of loyalty to their friends is higher that their duty to unknown children. Compelling them to report crimes compels articulate transgression of their values. Some may hate the cops or social workers more than they hate child exploitation, and many might be revolted by all snitching. Again, compelled reporting is a viewpoint-discriminatory abridgement of dissenters' free speech because you're demanding expression of something contrary to their perspective, although not in virtue of what they say, but to whom they say it.

Mandatory reporting violates the accused's due-process rights

With the second reason for rejecting mandatory reporting laws, we move from the free speech of the mandated reporter to the due process rights of the accused. Mandatory reporting laws weaken citizens’ protection against police investigation, the initiation of which requires that the police have probable cause to breach citizens’ privacy rights. A mandatory report provides the supposed probable cause, even though it lacks serious evidentiary weight because the biases favoring a decision to report the crime degrade the reports as evidence. There is no penalty for good faith false reports, but there is a criminal penalty for failure to report. Citizens are urged to report any suspicion, and even reports based on hearsay are increasingly mandated. Although more citizens don’t report what the law requires than do report it, those who do often report unreliably. Ordinary civil protections—such as recourse to malicious-prosecution lawsuits—should govern reporting crime; good faith alone doesn't justify inviting the authorities into others’ lives.

Mandated reporting selects against the virtue of courage

But satisfying the requirement that negligent reports be subject to the customary procedural protections deepens the bite of the third argument against mandatory-reporting laws: people ought not to be forced by law to express a viewpoint they’re afraid to articulate, and often, one must be courageous to come forward. The law ought not demand speech in fear’s face, not to protect the cowards, but the courageous. If only the courageous obey the law, due to others’ succumbing to fear of retribution, then (except in the rare, high-profile case), only the courageous suffer the imposed risks. The law shouldn’t transmogrify virtue into disability: when, as here, it does so, it selects for cowardice; and its regime, correspondingly, eventuates in a nation of cowards.

12.1 Against routine public discipline for attorneys

2011-09-30T14:14:00.000-07:00

kanBARoo court. Interlude 22. "Against routine public discipline."

12.0 Should the law profession be self-regulating? (with emphasis on California)

2011-09-22T13:59:00.000-07:00

Self-regulation's tenuous status

Although the rhetoric of the ethics codes says otherwise, the legal profession is not today self-regulating. Once, it more truly was, but for many years, the state supreme courts, not the bar associations, have had the final say over both the rules and their application. (See Fred C. Zacharias, The Myth of Self-Regulation (2009) 93 Minn. L.Rev. 1147.) The criminal codes with punishment, court rules with sanctions, civil law with lawsuits, and the state bars with attorney discipline, moreover, all contribute to the regulation of the legal profession. As a practical matter, nonetheless, degrees of self-regulation can be differentiated, and the trend—at least in California—runs decidedly toward decrease. The Legislature drives this trend, which takes the form of diluting attorney representation on the California State Bar's Board of Governors (name to be changed to "Board of Trustees") with Supreme Court appointees.

The Legislative pressure would appear to express the rightward trend in politics, as it conventionally expresses the same anti-lawyer sentiment vented in extremist rhetoric, such as “jail for judges.” Yet, certain liberal-reformists—such as David Cameron Carr of the “respondents' bar”— favor further curtailing self-regulation. (But one must give Carr some credit for the name of his blog, Kafkaesq.)

The misplaced emphasis on crime

So, what are we to make of this confusing issue regarding attorney self-regulation? One reason for the issue’s murkiness is the incoherent realization of the California bar's partial self-regulation. Since the Supreme Court is supposed to exercise ultimate authority over attorney discipline, attorney election of delegates makes sense only if attorneys and judges have identical interests or the ethical codes can constrain attorneys to act as “officers of the court,” an expectation anti-adversarial applied to lawyering and unrealistic applied to lawyerly voting.

Another arrangement making the self-regulation issue murky is that the system applies self-regulation to just those decisions where the Bar is least capable. Attorneys avidly self-regulate through bar associations when they can allege the embezzlement of client funds or other crimes, but the state bars lack the resources to investigate criminal misconduct. To accommodate this deficiency, the ethical codes impose draconian penalties for easily established but merely technical misconduct. Thus, the California Supreme Court holds that any momentary shortfall in an attorney trust account is disciplinable misappropriation of client funds.

The inapplicability of self-regulation’s rationale further exposes the stupidity of having the state bars enforce rules against criminal misconduct. The rationale is that the regulation of lawyers is inherently a task best accomplished when its enforcers benefit from professional discernment:

Lawyers and other specialized professions possess complex and esoteric knowledge and skills; therefore, they should be allowed to self-regulate because they alone have the specialized knowledge to understand the unique nature of their profession's problems and hence, to apply effective cures. Outside interference in this process, commentators argue, would undermine the profession's public orientation and subject it to regulation that is harmful to both the profession and the public. (William T. Gallagher, Ideologies of Professionalism and the Politics of Self-Regulation in the California State Bar (1995) 22 Pepp. L.Rev 485, 489.)

State-bar regulation is best suited for matters involving incompetent lawyering—where legal insight is essential and the mass of practicing attorneys can and should provide it. The supreme courts and their delegates have a conflicting interest in obtaining obedience to judges or, in other ways, making life easier for judges. Regulation of service quality overlaps territory covered by malpractice actions, but regulation of quality is much broader than the scope of civil lawsuits. To prove professional negligence, a client must prove harm, whereas proving incompetent service should suffice for discipline, even if harm isn't proven. Why wait for clients to suffer harm?

The common misfortune of incompetent attorney performance is what makes the public distrust self-regulation. If so, the bars’ focus on criminal misconduct is misdirected, not only because criminal investigation doesn't suit the bars, but also because service-quality regulation is the paramount public need. But then, who set the present course? Self-regulation fails because it contradicts attorney self-interest: attorneys don’t run for the Board of Governors promising they will regulate for competence. Rather, the bar associations address competence primarily by irrelevant MCLE requirements, revenue enhancing for some attorneys and nonthreatening (if irritating) to the others.

The need for lay competition

Whereas lawyers are exclusively qualified to assess the competence of lawyering, their professional associations lack the incentives to apply that competence. The bar associations enjoy a near monopoly on the practice of law—the exception is when litigants represent themselves, usually ineffectively. The bars’ near-monopoly on legal practice eventuates in ethical codes where guild interest overshadows public interest, and the redundant prosecution of criminals diverts attention from attorney incompetence.

Attorney self-regulation is a worthy goal, but for it to work, the legal profession must be stripped of its monopoly on legal representation. Competition by lay advocates can provide the incentive for attorney associations to monitor performance. The state should regulate the use of the title “attorney-at-law,” without enforcing a limitation on who practices law—a limitation disagreeing with democratic principles. This would be a significant change to our legal system, but it is indispensable, if the profession is to regulate itself.

11.4 Explaining deliberation. THE CONFUSION BETWEEN BELIEF AND OPINION AND THE NATURES OF FANATICISM AND PHILISTINISM. Part 5.

2011-04-06T15:01:00.000-07:00

I. The one-factor belief theorist's predicament

The key to understanding this account of epistemic attitude is what it denies: that the same attitude — belief — governs deliberation as well as action. The film Twelve Angry Men will illustrate the distinctions between the standard one-factor belief theory and my two-factor belief/opinion theory. The theories account differently for what transpired in Twelve Angry Men and what rationally justifies the dissenter's contradicting his ostensible epistemic equals. I assume that the dissenter was acting rationally. His conduct obviously compares favorably with the conformist jurors; yet, according to the belief theory, preferring his initial beliefs, after being informed that all of his epistemic equals disagreed, isn't rational. The belief/opinion theory resolves the anomalous conclusion implied by the belief theory.

Recall that the belief/opinion theory accounts for the anomaly by denying that the same epistemic attitude ordinarily governs outcome-determining action and guides deliberation. Common-denominator beliefs (the only epistemic attitude available to the belief theorist) leave little if any room for deliberation: deliberators would immediately agree. Since an average opinion constitutes a belief, the belief theorist tries to resolve the anomaly by resisting the averaging effects constitutive of belief to argue that the dissenter could credential himself as epistemically superior.

II. Justification for claims to epistemic superiority

A. Circular argument

Although justifications for the dissenter's epistemic certification are imaginable, those feasible apply under limited circumstances that don't do justice to our intuitions about the general role of dissenter. The dissenter's conduct is surprisingly hard to justify; when certifying epistemic superiority seems easy, the illusion comes from tacitly accepting a certain circular argument.

The dissenter's justification would be circular had the dissenter said, "Since the other jurors irrationally believe the prosecutor proved guilt beyond a reasonable doubt, my beliefs are credentiable, as proven when the other jurors refused to accept the inconclusiveness of the evidence." This "proof" is equivalent to "I am justified in believing defendant's guilt is unproven because of my epistemic superiority. I am justified in asserting my epistemic superiority because I believe the defendant's guilt is unproven." Certification of epistemic superiority must be based on independent evidence, meaning evidence different from that supporting the belief in dispute. The circular argument assumes the epistemic superiority it pretends to prove.

B. General traits

(1) Intelligence

To certify his epistemic superiority, the dissenter needs evidence — independent of the publicly displayed substance of their thinking — of the jurors' grades of thinking: he can't substantively assess the jurors' arguments and conclusions, because that's what's at stake: that argument is circular.

Without endorsing it, I'll construct a dissenter's argument based on independent evidence. Its major premise is that "general intelligence" predicts general rationality. The dissenter is barred from basing his self-certifying argument on beliefs about the matter at hand, but if the estimate is based on independent data, relative-intelligence estimates could serve as an independent criterion for epistemic superiority.

The dissenter might avoid circularity in his self-certifying argument by estimating jurors' relative intelligence based on independent evidence, such as complexity of speech, extensiveness of vocabulary, and coherence of organization. If the argument's assumptions are satisfied, the dissenter then could justify credentialing his own opinions. (Note that credentialing an opinion doesn't necessarily warrant privileging it enough to outweigh eleven other jurors.)

The argument based on intelligence works only if the other jurors don't have the opposite belief. If they think they're the smart ones, the dissenter hasn't justified his epistemic superiority, as the other jurors' claims would then have an equally strong epistemic position. (In reality, people who are wrong who think they're right don't always think they're smart, but they often do.)

(2) Conscientiousness

Some evidence for certification manifests an intermediate degree of independence. Rather than base his opinion on the very substance of the dispute (circular argument) or, on the other hand, on evidence independent from that substance (e.g., intelligence), the dissenter certifies his epistemic claims by comparing approaches to deliberation: the dissenter notes his own rational exercise of care, which he contrasts with other jurors' conclusion jumping. Whether the judgment of superior deliberative carefulness establishes epistemic superiority depends on the specifics of the dissenter's inference, but he might successfully justify his epistemic superiority by attributing habitual carelessness to the other jurors.

But justifiably characterizing the other deliberators as careless more often fails to establish epistemic superiority because deliberators' carelessness can't usually be divorced from their substantive conclusions. The jurors' dismissive attitude could be appropriate for an outcome as obvious as they believed this one was. An analysis — is the carelessness a general trait or part of the very opinion in question? — must support epistemic credentialing based on conscientiousness.

(3) General principle

The dissenter might reach for a general principle: nothing could be that simple. Allowing for its vagueness, the platitude holds true, but its truth is inadmissible in an endeavor seeking the same truth. Again, different solutions might obtain depending on specifics. If the other jurors agreed with the general proposition that nothing could be so simple, then demonstrating their inconsistency is part of the deliberation, but before the matter is deliberated, the jurors' self-contradiction doesn't credential the dissenter. After all, worse contradictions may lurk in the dissenter's beliefs.

(4) Inadequacy of arguments based on general traits.

The bite of Aumann's agreement theorem is hard to evade: often little room is available for certification. Even after finding a loophole, we are still without an account of the dissenter's rationality, inasmuch as the dissenter represents a type; if the dissenter has no justifiable claim to epistemic superiority, we wouldn't want a similarly situated juror to collapse his opinion into a group-based belief. In complete and acknowledged epistemic non-superiority — even epistemic inferiority — deliberation depends on the dissenter's expressing his opinion, notwithstanding that his rational belief should conform to an overwhelming majority.

III. Lowering the disagreement threshold for rational deliberation.

If epistemic superiority doesn't justify the dissenter's non-conformity, the one-factor belief theorist might try to argue that ordinary belief is sufficiently spacious to contain deliberation. If epistemic superiority doesn't justify the dissenter's non-conformity, belief theorists must justify his dissension employing belief alone, contending that the deliberative process requires less justification than the belief/opinion theorist demands. The belief theorist would argue that deliberation isn't foreclosed because, in general, rational jurors deliberate.

A. Reasonable doubt.

The belief theorist who takes this tack must account for deliberation's rationality by claiming that the dissenter's position — when included in an averaging process congealing one belief from many — moves the average of the consensual belief beyond the reasonable-doubt threshold. The jury majority might temper its certainty enough to move the group average to within the reasonable-doubt range. Belief theorists might argue that this scintilla of doubt justifies the dissenter's advocacy. Without positing opinions, belief theorists maintain that a belief's slight dubiety justifies a jury's deliberation.

But consider another possibility: the dissenter himself believed there was only a scintilla of exonerating evidence, while other jurors believed there was none. Then, the average of the initial beliefs would congeal in a belief remaining beyond reasonable doubt. In this state, there would be no deliberation. Moreover, if the group belief were within the reasonable doubt range, the debate over a slight difference in estimated probability of guilt would be feeble.

B. Devil's advocacy

The remaining argument available to belief theorists is that rational jurors would recognize the desirability of full debate, despite the convergence of opinions, and they would appoint the dissenter as devil's advocate. This twist, would argue belief theorists, allows them to account for productive debate based on its rational necessity. Occurring regularly, the practice would blur the distinction between the belief and the belief/opinion theories, only a single but important difference remaining: under the belief theory, the advocate's identity is irrelevant. Consensual belief, unsupplemented by opinion, leaves no residue distinguishing the deliberators to account for the specific selection of the dissenter. Jurors may discover that dissenters make the best devil's advocates, but why they are better remains unexplained. The belief/opinion theory accounts for selection of the dissenter: in deliberation, he defends his opinion, distinct from his belief.

11.3. Pathologies of belief-opinion confusion. THE CONFUSION BETWEEN BELIEF AND OPINION AND THE NATURES OF FANATICISM AND PHILISTINISM. Part 4

2011-03-20T14:18:00.000-07:00

Belief-opinion confusion results in common political pathologies. Since beliefs are averaged opinions, the latter are less stable, uniform, and moderate than beliefs. Opinion formation, when properly detached from outcome determination, is a kind of intellectual game, albeit one having a vital societal function. Opinions merit argumentative intensity without practical enthusiasm; but in politics most adherents can’t distinguish belief from opinion and promote their opinions with belief-appropriate confidence. Fervent promotion of opinion is termed fanaticism; when less fervent, opinionation.

Another attitudinal pathology resulting from treating opinion as belief is hasty closure. Beliefs, formed by consensus, are more robust and stable than opinions, since averages change more gradually than individuals do. But when they confuse belief and opinion, adherents think their opinions ought to be as robust and sure as their beliefs. If interested in and well informed about a topic, they’re embarrassed by any inability to form a stable and confident opinion, and they’re denounced for any political fickleness, although variability is the nature of rational opinions, which, as deliberative tools, shouldn’t be held tightly.

Other pathologies result from the reverse confusion, illustrated by Solomon Asch’s influential conformity experiment: mistaking belief for opinion. Asch asked subjects to choose the longer of two lines, but unknown to the real subjects, the other ones were Asch’s confederates (“stooges”), who followed a script to report that the obviously shorter line was longer. Many subjects conformed their judgments to the stooges.'

The experiment’s standard interpretation holds that subjects were psychologically driven to conform. We're indeed sheep if scared to dissent about a line’s length because we fear a group of strangers will ostracize us! The conventional interpretation is contested by a few social psychologists: in my terms, subjects suffered from belief-opinion confusion. Asch’s ambiguous instructions confused his subjects, who misunderstood the length-estimation task as requesting they form a belief about relative length. Subjects weren't irrational when they discounted their own perceptions (read opinions), contradicted by epistemically equal stooges. The hypothesis is testable: tell subjects to report their perceptions of relative length, rather than eliciting their all-considered beliefs.

Subjects who nevertheless continue to report their beliefs, not opinions, would, then, be social conformists, forming their opinions as if beliefs, the reverse of fanatics, who form beliefs as if opinions. Conformists don’t necessarily go far wrong in their beliefs (fanatics do), but they’re useless deliberators, compulsively moderate equivocators, whose fear of error, suitable for outcome-determining beliefs, governs how they form deliberation-enhancing opinions, which are functionally eliminated when adherents apply unsuited belief-forming methods.

Confusion between belief and opinion is also what makes Aumann’s agreement theorem counter-intuitive. The theorem concerns beliefs, but students tacitly apply it, instead, to opinion.

Next Essay: Explaining deliberation

11.2 The distinct functions of belief and opinion THE CONFUSION BETWEEN BELIEF AND OPINION AND THE NATURES OF FANATICISM AND PHILISTINISM. PART 3.

2011-03-07T15:40:00.000-08:00

Belief, relying on the opinions of epistemic superiors and equals, is the rational basis for controlling outcome, but effective deliberators must express their opinions, as in the 1957 movie "Twelve Angry Men." A single holdout—without claim to epistemic superiority—stood firm and averted an innocent defendant's conviction. In rational-belief formation, agents discount their own opinions following their overwhelming rejection by epistemic equals. For rational belief, the dissenter should assign no greater weight to his own opinion than to other jurors'; but had he based his position on rational belief, the jury would have convicted wrongly. Under the (false) assumption that deliberation is based on belief, the independent juror would have been irrational in his stubborn defense of personal opinion. That's wrong: jurors are supposed to be independent. Jury instructions, though not philosophically explicit, imply that jurors should form independent opinions, influenced only by other jurors' arguments, not the belief-constituting average opinion of epistemic equals. The other eleven jurors, who decidedly were not paragons of rationality, adopted group-average opinion to form, irrationally, a bloc against the dissenter.

Opinions and beliefs serve separate valid roles. Whereas belief is the rational basis for outcome control, opinion is the substantial basis for deliberation, which contests opinions to adjust belief. Deliberation flourishes when independent contributions foster the debate driving it.

Scientific and philosophical debates resemble jury deliberations. Although rational belief is a weighted average of all the experts' beliefs, to reach beliefs least prone to error each scientist involved must first serve as an independent "measuring instrument," only later submitting to an ultimate computation of a group average. Philosophers' attitudes are typified by Hume's, when he skeptically rejected causality, opining that no future expectancies are justified, and causality is mere habitual association. Yet, he admittedly disregarded his philosophical conclusions in practical matters. Hypocrisy? No, Hume was properly distinguishing his belief that causality is objective from his opinion that it's illusion. Hume advanced philosophy by cultivating his independent opinion, which, like all good philosophers, he tried to conform to his reasoning, but he disbelieved his skepticism.

Philosophers and scientists distinguish the research program they pursue from the tenets they believe, but political disagreement is different. In an election-based system expressing deeply opposed interests, political advocacy simultaneously serves deliberative and outcome-controlling functions, because democratic debate serves to both answer and decide political questions. Democratic debate is premised on deliberation, while democratic process is premised on outcome control, and when a single venue simultaneously serves both functions, the deliberative function suffers. If the other jurors continued stating beliefs rather than forming opinions, the dissenting juror's deliberative efforts would have been futile, but outcome control is more robust. Whereas deliberation is stymied when some jurors substitute the drive to control the outcome for the desire to find the truth, outcome control is facilitated when others distractedly pursue other goals.

While beliefs rather than opinions guide political debate, when their deliberation is obstructed the intended beliefs never progress beyond opinion. The pathologies of belief and opinion, the subject of the next essay, derive from this political concoction and its thorough confusion of belief and opinion.

Next posting: Pathologies of belief-opinion confusion.

11.1 Is epistemic equality a fiction? THE CONFUSION BETWEEN BELIEF AND OPINION AND THE NATURES OF FANATICISM AND PHILISTINISM. PART 2.

2011-02-26T19:01:00.000-08:00

Concepts

The leading concept epistemic superiority (discussed in 11.0) refers to relatively greater capacity to distinguish relevant truth from falsity, as demonstrated by objective evidence. Epistemic justification refers to evidence proving an adherent's epistemic superiority. Credentialing means according epistemic superiority. The agreement theorem (according to my parsing) requires epistemic justification to claim epistemic superiority rationally. Rational adherents modify their beliefs upon learning that an epistemic equal disagrees.

Superior expertise

Proving the agreement theorem is mathematically trivial, and the previous post was supposed to demonstrate, almost intuitive. Yet, because the theorem conflicts with prevailing norms, which reinforce adherents' untoward opinionation, mathematically sophisticated students commonly reject the proof initially. Contentious beliefs—their adherents regarding themselves epistemically superior—indeed complicate matters, but self-description isn't epistemic justification: a claim to epistemic superiority is just another justification-requiring belief. Self-credentialing is rational only if adherents first prove their epistemic superiority with respect to their claim to epistemic superiority!

Circular reasoning is obvious when adherents contend adherence to the belief itself proves their epistemic qualifications, but some dodges are subtler. As an example of the evasions, consider "birthers" (Americans who believe Obama's "real" birthplace is presidentially disqualifying), called upon to justify their ideological self-confidence enough to survive their beliefs' overwhelming rejection. Birthers may believe that, as such, antibirther beliefs epistemically discredit their adherents, but this argument is circular because the same ideological isolation discredits both belief and credential. Sophisticated birthers might invoke a subtler form of question begging, claiming vindication by other equally contentious positions—perhaps, adherents' "discernment" that Obama is Muslim—but these adherents' struggles against the stigma of intellectual isolation unwittingly prove their epistemic inferiority, despite the lesser absurdity of Muslim baiting compared to citizenship paranoia.

Leveraging credible beliefs to demonstrate adherents' expertise occasionally succeeds, but credentialing is more commonly based on direct grounds, as when experts' training vouchsafes their expertise against masses of disagreeing nonprofessionals. Also, experts reasonably disregard lesser experts, as Albert Einstein did Niels Bohr, who insisted Einstein was mistaken to reject quantum mechanics. Einstein replied he had earned the right to be mistaken. His demonstrated powers of physical intuition justified self-credentialing his opinion. Analogizing the credentialing process to averaging measurements of duration—with equally accurate clocks, the readings should be averaged, but a reading from an ancient 0-jewel wind-up clock should be overridden by one from an atomic clock.

Superior methods

Claiming superiority in method—in the manner of the Catholic Church—is a systematic way to bolster epistemic credentials and save an opinion from its fate as one of many. If the Church's claim that the Pope speaks for God were demonstrable, then taking your cue from priests would be more rational than relying on your cogitations.

Another bootstrapping method is Marxist sociological justification, which can be treated as an answer to demands for epistemic justification: under the agreement theorem, what justifies accepting Marxism when most intellectuals disagree? The Marxist answers that these opponents, however erudite, belong to (or identify with) an exploitative social class, blinding them to subversive truths. If the workers accept Marxist socialism, while the bourgeoisie espouses liberalism, conservatism, or reaction, the line-up reveals politics' class dependence, and the argument avoids circularity if independent historical evidence supports the bourgeoisie's epistemic inferiority. Thus, Marxism contains theoretical machinery adequate, in principle, to justify Marxists' intellectually isolated iconoclasm. No doubt this contributes to its endurance.

Equal credentials

Granting the Marxist claim that the main political divisions represent social classes differing in epistemic endowment, most political and religious disputes still would be between approximate epistemic equals. Republicans and Democrats vituperate with language proven lethal, without there being a rational basis justifying either's epistemic superiority. Marxist ideologues, too, disagree vehemently, although none occupy superior epistemic positions. The disputants' epistemic equality doesn't temper these disagreements, whereas it should among rational adherents.

Under-weighting others' beliefs, in effect, equates belief (all-things-considered position) with individual opinion (others' beliefs factored out), despite the rationality of differentiating them. Confusion about the distinct societal roles of belief and opinion explains this irrationality.

Next essay: The distinct societal functions of belief and opinion.

11.0. Two kinds of belief. THE CONFUSION BETWEEN BELIEF AND OPINION AND THE NATURES OF FANATICISM AND PHILISTINISM. PART1.

2011-02-11T02:19:00.000-08:00

Two distinct attitudes—which I'll call belief and opinion—go by the name “belief,” and distinct pathologies—fanaticism, opinionation, conformism, and equivocation— result from confusing them. The difference between belief and opinion is manner of formation. Beliefs are what you hold true, all things considered; opinions are what’s left after you factor out reliance on other people's beliefs. The way belief and opinion are confused differentiates the pathologies.

The distinction’s formal description might seem trivial, but its implications are counter-intuitive. A theorem that won economist Robert Aumann a Nobel Prize expresses the paradox. Aumann proved that if two agents in the same epistemic position have different beliefs, they should, rationally, split the difference.

To get the idea and see the point, start with simple factual beliefs. You and nine others estimate the number of marbles in a fish bowl. You observers are indistinguishable by your relevant abilities and experiences, but you guess higher than most others do. Then, Aumann's theorem (the "agreement theorem") says you should lower your estimate by adopting the average of all ten as your own belief. One way to explain the reason is each observer functions as a measuring instrument. If you have ten rulers with equal credentials for measuring length, you obtain the most reliable estimate by averaging the ten. You should treat each observer as a measuring instrument, and as you should average ten separate, epistemically indistinguishable rulers, you should adopt the average result of the human “instruments.” You have no rational basis to give more weight to your own opinion than to that of the other observers, even in forming your own belief.

This might be fine and well when applied to estimating marbles in a fish bowl, but think of applying the principle to important beliefs.

Next part: Is “epistemic equality” a fiction?

Correction (February 23, 2011): Aumann is best known for his agreement theorem (and for reactionary politics), but he won the Nobel Prize on other bases.

10.3 The what, how, and why of "free will": A metaphysical digression—Part 3. Why "free will"?

2011-01-04T10:13:00.000-08:00

Another set of questions concerns the purpose of the sense of free will—how did it enhance biological adaptation? Metaphysicians who agree free will is illusion divide on whether the illusion is necessary, and a popular view holds that if they truly came to believe determinism, humans would have no reason to act. This view is espoused by some deterministic free-will deniers, not only antideterminist "libertarians" but, as you'd expect, the libertarians express the strongest views; one libertarian social psychologist, for example, claims to have demonstrated experimentally that college-student subjects cheat more on tests after they're induced to disbelieve in free will. Simply put, his theory is that if we deny our behavioral origination we have less drive to behave responsibly. If this psychological claim is true, the semblance of a motivational push to do the right thing is adaptive, and bearing ultimate responsibility for deeds supplies the evolutionary pressure favoring the free-will experience. The problem with assuming perceived free will is adaptive is it doesn't explain how this perception motivates. Phenomenally, it seems to, but the appearance that free will motivates requires no further explanation, being the inevitable consequence of the free-will experience itself. When you experience your behavior as deriving from the perception that your mental states immediately cause acts, you will reasonably conclude that subtracting this (nonexistent) push undermines motivation and responsibility.

The present theory better explains apparent natural selection for this form of purely mental causation. When decision produces action, the actor's nervous system must register that the decision (the actual decision, not the experience of deciding) caused the act, to allow the actor to distinguish voluntary acts from involuntary movements. Coupling a sense of deciding with the decision, by placing the phenomenal deciding experience where the actor relates it to what follows, conveys this information. The "free will," then, is a byproduct of other evolutionary design choices.

What about the finding that free will is more conducive to honesty than determinism? Consider the mental operations of a subject induced to believe determinism is true in a psychology experiment. The subject can't rid himself of free will or even weaken its grip by another "freely willed" act! Whether it's possible to experience oneself in a purely deterministic fashion is itself a debate; Buddhism, for example, seeks to promote this loss of sense of free will (along with other baggage), but the transformation is a long-term project, not the intellectual recognition that determinism is true. The subjects' thoughts elicited by the faux-determinist propaganda delivered in the experimental condition are futile for overcoming the subjects' sense they have free will. At most, the subjects can negate specific attitudes they attribute to their supposed free will: I eschewed cheating because free will made me feel I'm the originator of my acts. Having learned I'm not the originator, I have no continuing reason to abstain from dishonest practices I previously shunned, when my ersatz sense of origination suckered me. Therefore, I should disregard the apparent demands of the autonomous will by behaving less honestly. Subjects can suppress only specific impulses and inhibitions they had previously justified by libertarianism; the subject hopes to avoid being a free-will sucker, despite continuing to experience the false sense of free will. The subject now "freely wills" the new behavior, while willfully suppressing what had once been "freely willed."

Neither the societal effects of disillusion with libertariansm, nor the individual effects, are apt to be straightforward.

10.2. The what, how, and why of "free will": A metaphysical digression—Part 2. How "free will"?

2010-12-29T10:06:00.000-08:00

New data could conceivably disprove Libet’s results, but the correction would mean nothing metaphysically because at the end of the day, Libet’s contribution was conceptual. Libet solved the mind-body problem en passant; his data forced him to grasp the distinction between the deciding experience and deciding itself, but the data themselves are metaphysically otiose. For metaphysics, Libet’s experimental results serve only as scaffolding for distinguishing deciding from decision and showing that temporal associations in the experience of deciding explain why we feel we exercise mentalistic control. The perception of deciding to act, distinct from the fact of acting, both explains the impression that we have free will and demonstrates free will’s untenability. The objective temporal ordering doesn’t bear on these distinctions and explanations—as long as the experience is that the act of will preceded or coincided with the act of deciding.

Libet (somewhat unknowingly) showed how human experience creates a predilection for a misplaced, impossible, perceived causal relation, and connections experienced create the causal illusion; real temporal relations are irrelevant. Utter simplicity recommends this explanation of phenomenal free will, and the explanation displays exactly why free will is illusion: sensations don’t cause physical events. Holding that experience interacts with the physical world, Descartes was the only important metaphysician to disagree, and every metaphysician today holds that two substances essentially different can’t interact. Physical laws govern physical events and leave no room for entry of purely mental causes.

A possible source of confusion about these arguments is metaphysicians’ acceptance of one class of mental causes, beliefs and desires. In response, perceiving willful efficacy differs from attributing beliefs and desires in that nothing in the concept of “belief” and “desire” identify them as phenomenal experience. While belief and desire aren't experiences—available for association with other experiences—the error of considering beliefs experiential, held even by metaphysicians until the 20th century, may have generalized from free will to nonexperiental mental entities like belief and desire, causing the naive error that beliefs and desires are experiential.

Finally, since (if) sensations are brain events, one might contend that associating experienced decisions with actual action results in no anomalous causation. First, nothing in the experience of deciding points to the under-strata, and conditioning usually can target only phenomena. Second, if the objection holds, it’s at the expense of the mind-brain-identity theory’s credibility, in its insistence on a direct relationship between phenomenology and physics.

Next essay: Why free will?

10.1. The what, how, and why of "free will": A metaphysical digression—Part 1. What is "free will"?

2010-12-19T12:11:00.000-08:00

The Libet experiments can reinvigorate the free-will debate—now deadlocked and dull—if applied to clarify concepts, not merely refute opponents. In the current standoff, almost every philosopher and scientist rejects libertarian free will, the doctrine that willful acts produce physically unpredictable outcomes, but the scholarly majority wants its physicalism and its free will, too. This compatibilist maneuver to have both turns the question of free-will’s existence into a jejune debate about words; but unfortunately, free will’s inherent ineffability condemns determinists to rejecting what they can’t define. These essays fill the gap.

Compatibilists equate the exercise of free will with voluntary behavior, as when I move my arm because that’s what I want to do. According to the desiccated compatibilist definitions, free will is comprised of the ability to behave voluntarily, notwithstanding that volition is cortical matter physically causing chemical events. Although it’s hard to describe an alternative, this position seems obviously wrong; a science fiction story can quickly show why. Imagine an intelligent species that directly experienced the causal path between brain and arm, as we might experience the causal connection between pain and object causing injury. Such beings would perform the action voluntarily, but would this tempt anyone to call it “free”? Unfortunately, the answer is affirmative. While the thought experiment can allude to the distinction between voluntary and freely willed behavior, a compatibilist would answer the question, “Yes, that is an example of free will.”

Determinists agree that volition is one meaning of free will, but insist on another meaning, origination, the sense that you are your behavior’s source. Although origination separates determinists from libertarians—by the lights of both—compatibilists circumvent the issue by limiting the manifestation of free will to voluntary behavior. That they’ve gotten the better of the argument, despite their evasiveness, must be admitted, because origination is nebulous, unsuited for creating a clear counterpoint to volition. Free will, the agent’s contribution to the event, the umpf we give an act seemingly making it occur, seems ineffable except by the vaguest allusion. Intuitively, we feel we will freely in a sense distinct from mere volition—most everyone thinks they know this other free will—but unsupported mass intuitions truly deserve little respect.

My trick defines the experience of free will by its cause instead of its experiential quality, much as the ineffable red patch observable in your mind’s eye can be defined as the physical reception of an object reflecting certain long light waves. With a difference. If we define the free-will experience by its cause—as we can define the sensation red by its external cause—then, if the definition posits a demonstrably nonexistent entity, it undermines the doctrine of free will, including its compatibilist version.

Recall that Libet found that subjects perceived the act of deciding, the initiating event of the free-will experience, later than the actual decision—this demonstrated neurologically. Determinists see that misplacement of the subjective experience of deciding disposes of libertarian free will. But who believes in libertarian free will? Since they haven’t described the experience of free will, these scholars haven’t refuted compatibilism.

My small contribution is to articulate a definition of free will:

Free will is the (mis)perception that experienced deciding causes behavior.

This project relies on Fritz Heider’s classic psychological experiments, as much as on Libet’s neurological studies. Heider showed that despite the abstractness of the concept of cause, temporal precedence and spatial contiguity produce the direct, noninferential perception of causality. (An animated demonstration lets you experience the direct perception of causality.) This sense of a causal connection, resulting from associating perceived decision with act, is the sense of free will.

Attributing the free-will experience to a unique cause frees determinists from the vexation of defining it experientally, since it explains the experience by an invalidating mechanism: if the experience of deciding regularly precedes an act, it will seem its cause. Determinists, therefore, can demonstrate a sense of free will distinct from voluntary control.

Next part: How free will?

10.0. Free Will and Legal Intent: Consequences of a Myth's Demise

2010-11-17T11:45:00.000-08:00

Husband hates wife; in a state of nature he would kill her. Only his cowardice deters him. One evening, cleaning his gun, he accidentally shoots and kills her. Can husband now be punished for any crime?

Depending on the degree of care he took to avoid mishap, the offense is ordinarily negligent homicide or manslaughter. We want to know whether he can be blamed for more. Do his unconscious intentions bear on his culpability?

The Interpretation of Dreams, Sigmund Freud provides a simple illustration of the workings of unconscious motivation. Freud didn't want to return a library book quite yet. He knew that without even forming an intention to delay the return, he could trust his unconscious mind to cause him to forget. Of course, that's how it worked out.

It's surprising that psychoanalysis has so little affected the legal concepts of negligence and intent in either criminal or civil law. Freud taught and clinically supported the thesis that nothing in psychology is accidental: even slips of the tongue having meaning. The most interesting expressions of unconscious motives for psychoanalysis are those symbolically representing some wish, but as with Freud and his library book, accidents can realize unconscious wishes directly.

Many psychologists lack Freud's confidence that all behavior is psychologically determined, but findings in cognitive psychology in recent decades have required a thorough rethinking of the origination of behavior. Today's consensus accepts that all cognition (distinguished from its products) is unconscious. Although the Freudian question of motivated negligence hasn't been directly raised, cognition's unconscious nature invites study of the driving unconscious intentions.

The final blow to a purely conscious approach comes not from philosophy but experimental science, which has proven that consciousness has no direct relationship to the acts conscious thoughts seem to cause. Whereas Freud's theories should prompt questions regarding the involuntariness of apparently negligent acts, these experimental results make the apparently intentional acts less so, directly refuting the theory that behavior is freely willed.

What's implied for law by the undermining of concepts of both negligence and willfulness? Benjamin Libet's 1980's scientific work presents the rare instance when a single scientific finding resolves a philosophical question, as Libet's work rules out simplistic theories of free will, while simplistic theories were the only ones credible. Libet and others have replicated that the decision to act arises in the brain before the subject experiences the conscious act of deciding. If free will consists of conscious decisions causing the designated act, then we clearly don't have it, since real causes occur before, not after, the events they cause. The perception–or rather illusion–that the conscious decision causes the resulting behavior is the basis of the universal naïve belief in free will (although I haven't seen the literature expressly drawing this conclusion).

Ironically, Libet was a fervent believer in the existence of free will and proposed a process for its realization in light of his findings. A subject making the conscious "decision" retains the ability to veto the unconsciously engendered act. Libet's theory is free will's last gasp, unsuccessful because the veto is itself an act, with the same unconscious prehistory, thus arising with the same independence from consciousness and bearing the same involuntary character as the original act. The most coherent interpretation at present is that the veto is as little "free" as the act. (See Velleman, David (2000) The Possibility of Practical Reason. Oxford University Press.)

The nonexistence of free will and the intentionality of some unconscious behavior carries both apparent and real implications for law's evolution: 1) directly undermining criminal law's non-rebuttable presumption that voluntary acts are freely determined by the actor; 2) undermining the moral basis for punishment, insofar as it depends on the actor being the originator of acts; and 3) flattening the distinction between negligent and intentional mens rea and negligence and intentional torts.

Commentators commonly cite criminal-law's presumption of free will as a potential casualty of discovering it doesn't exist, but the presumption's only legal function is to impose responsibility on all actors for voluntary acts. The demise of one theory doesn't fell an institution. Without logical contradiction, a person without free will can be under legal compulsion to obey.

But is the person responsible; does the unraveling of the explanation regarding why a person can be punished for his voluntary acts undermine the moral basis for criminal punishment? It vitiates the retributionist justification for punishment as desert, a result that is less radical than a crisis of justification but greater than a reshuffling of theories. Desert's demise is a welcomed enlightenment, but some consequences are less benign. Deterrence takes up the justificatory slack from retribution, but from a moral standpoint, deterrence isn't quite up to the job because of its inability to define the set of punishable persons. To rely completely on a deterrence theory turns criminal punishment into a form of social engineering, with no limits but expediency. Such punishment meted out amorally is vulnerable to purely pragmatic enlargement of the set of people who can be incarcerated or otherwise punished. The anti-punitive intellectual progress of repudiating free will, paradoxically, fosters punishing more citizens.

Eliminating the conventional rationale for punishment also augurs a certain leveling of the distinction between negligent and intentional torts. Since the premise that voluntary acts are products of free will no longer distinguishes these categories morally, the distinction loses functionality. The recent research even disposes of pragmatic justifications for restricting punishment to intentional acts, as the unconscious has proven more intelligent than most had believed, hence deterrable.

That rehabilitation today is a joke—psychiatric and drug referrals, veiled punishment—contribute to free-will's paradoxically punitive death throes: an old ideology crumbles without new institutions arising.

Next in the free will series: What is free will?

9.0 Abolish unlimited-term coercive confinement for civil contempt

2010-03-31T14:47:00.001-07:00

Criminal contempt, committed when a party disobeys a court order, is punishable by less than a year in jail. Civil-contempt punishment, imposed to coerce obedience to court orders, may last much longer. The greater potential punishment for the lesser offense is a legal absurdity.

Arguments

Courts use moralistic and pragmatic arguments to benumb lawyers to this anomaly. The moralistic argument is mere incantation: "the contemnor has the key to the cell in his own pocket." (Green v. United States (1958) 356 U.S. 165, 197 [dissenting opn., Black, J.].) This slogan contains a logical fallacy, in implying the defendant exercises a different kind of self-control when the threat of punishment precedes rather than follows disobedience. The fallacy is a pervasive reasoning error, the hindsight bias, where observers perceive past events as determined and future events as free. The illusion created is that the defendant contemplating compliance with the order has free will, while the person having violated a court order is determined. The distinction is false: the defendant has the same potential control or lack of control over his conduct whether the court threatens him with punishment for disobedience or with coercion to induce compliance; the person subject to deterrence is free or both categories are determined. The judges' argument could justify any arbitrarily severe punishment administered after a party violates an order: the contempt respondent could avoid incarceration because he always held the key to his freedom.

The pragmatic argument is that courts couldn't function without the power to compel compliance with their orders. (Gompers v. Buck's Stove & Range Co. (1911) 221 U.S. 418, 438 - 9 [without coercive punishment, law rendered impotent].) This appraisal comes from the courts themselves, as the courts are the primary sponsor of contempt law. Judges' longstanding agreement on the principle is expected, since it concerns judges' most valued prerogative next to their paychecks. While courts must coerce, proponents of long-term coercive confinement haven't said why courts need the level of coercion law allows, when the threat of a few days or the experience of a few hours in jail suffices to persuade most witnesses to testify. Proponents of harsh coercion could argue with the same logic that if perjurers don't suffer life in prison, truthful witnesses would disappear—and with them functioning courts. Just as no perjury or contempt is serious enough to warrant life in prison, so no testimony or other compliance is important enough to justify indefinite detention and no civil matter so crucial to warrant long-term incarceration. Juries have always adapted to procedural limits on evidence and the limited means the law allows for its acquisition.

Threat

Although American citizens rarely suffer coercive confinement for long terms, most jurisdictions issue the potential long-term sentence each time their courts order indefinite coercive confinement for civil contempt. In a well-publicized recent case of long-term civil confinement, Pennsylvania released the defendant after 14-years confinement to coerce payment of alimony. In California, Richard Fine has spent more than a year in coercive confinement.

The case which settled constitutional jurisprudence on coercive confinement for civil contempt proves the threat. (See Gompers v. Buck's Stove & Range Co., supra, 221 U.S. 418.) An employer had enjoined Sam Gompers and other labor leaders from boycott under federal laws outlawing boycotts as restraints on trade. The trial court sentenced them to nine, six, and three months in jail, and the American Federation of Labor appealed the sentence. While the Supreme Court held the case moot because the parties had settled, it upheld the confinement on grounds that the district court erred in sentencing them to any definite term. The contempt was civil, a remedy to coerce compliance with court orders for a party's benefit, not a "punitive punishment" designed to uphold the court's authority.

The court released the union leaders only because the detentions outlived their usefulness, but what if the detention issue hadn't been mooted? If the boycott continued, the employer could use the courts to detain the AFL leaders for the boycott's duration. The disobedience to court order consisted of circulating pamphlets calling the company "unfair." The court decided that the term was a call to boycott, and it probably was, but how does a court facially distinguish a call to boycott from a political denunciation of unfair practices? How did the court expect the union to use its free-speech rights to criticize the company without using words like "unfair," which the court held acquired hidden meaning? How to distinguish between someone reading that the company is unfair and deciding not to buy from it and someone complying with an implicit boycott call? A single judge made these determinations, which threatened the leaders with incarceration during the dispute's duration. Citizens threatened by coercive incarceration aren't limited to millionaires avoiding alimony payments. The courts perfected civil-contempt laws and arguments justifying them by wielding these laws against ordinary working people.

Remedy

Indefinite coercive incarceration for civil contempt should be legislatively abolished because it overdeters or invalidated because it is cruel and unusual punishment. Overdeterrence occurs when the criminal laws punish excessively. The basic concept is that a deterrent not only deters the intended conduct but similar or associated conduct. Oppression through overdeterrence occurs if citizens could be imprisoned for life for stealing a piece of bread: some people would starve instead of committing petty theft. Punishment always harms even when it successfully deters, and it inflicts harm not only on the defendant but on society. Increasing the punishment for criminal contempt causes defendants to interpret injunctions broadly when they should be narrowly tailored. True, the overdeterrent effect is less deadly when the punishment is coercive instead of punitive, as the defendant is free to reverse course and suffer no more. With coercive detention, the main overdeterrence effect overenhances the court's power to get what it wants.

Holding punishment to moderate levels avoids oppression: moderately punitive laws don't scare citizens into complying more than society needs, and flouting the law sometimes benefits society. Just as acceptable laws become unacceptable when they excessively pressure citizens, so coercive detention can force excessive compliance. In the Gompers case, it would have been oppressive for the employer to break the back of the boycott through the courts; better that Gompers not suffer an infinite potential punishment; better that he be allowed to try to distribute his pamphlets in defiance than collapse before the will of a single judge. In a case like Richard Fine's in California, it doesn't promote democracy to allow a court to apply all necessary coercion to force financial disclosure. Better to leave Fine room to protect his principles and his privacy. Let the punishment fit the crime; let coercion fit its end.

Criminal contempt caps the justifiable deterrent force for civil contempt. If a year's incarceration is the longest punishment justifiable for acts of contempt, then one year is the limit on coercive confinement before it overdeters. The amount of justified coercive punishment can be no more than the amount of justified punitive punishment because coercive-punishment's immediacy and certainty augments its effectiveness.

The prospects for invalidating indefinite coercive detention are small: you won't find a judge who agrees that sometimes flouting a judge's lawful orders is in order. In judges' minds, concepts of overdeterrence can't apply to contempt remedies. Except when the legislature intervenes, courts swallow absurdity and embrace unlimited detention.

Coercive detention for more than a year is legally absurd, and under the Eighth Amendment, the limit for coercive detention should be set no higher than three months, after which coercive detention changes from a deprivation to the deliberate infliction of suffering. Coercive detention has no rehabilitative goals which could justify it, and at a point, holding a prisoner becomes nothing more than inflicting sufficient misery to induce compliance. Indefinite coercive detention is torture.

8.0 Legal ethics: Agential versus moralistic

2010-01-15T23:04:00.001-08:00

Ethical rules governing legal practice are framework considerations in that they help determine broadly what cases are brought to trial, what arguments are brought to bear, and with what effect they are presented to court or jury. Professional ethics purport to have two purposes—public protection and consumer protection—but ethical rules for the practice of law should protect lawyers' clients exclusively. The law should eschew contra-agential ethics; ethics that purport to serve the general public thwart loyal service to lawyers' client principals. Since legal representation is a prerequisite to parties' exercising various fundamental rights, provisions curtailing attorney responsiveness to client interests compromise litigants' fundamental rights.

Contra-agential ethical rules for lawyers (also termed moralistic or prosocial ethics) harm both clients and lawyers. Contra-agential ethics encumber clients' rights to representation; the right to be heard is the most important component of due process, but most citizens lack the forensic skill to cause a court to have heard what they say. Permission to be heard is a popular right only when it includes representation by counsel, and additional rules applying to attorneys attenuate the right to appear by counsel. Ethical rules punishing attorneys' litigation misconduct by career loss further empower the judges over litigants by controlling their attorneys and dampening attorney aggressiveness. These rules include the harsh penalties for disobedience to court orders, rules that make a lawyer tremble at testing an injunction's validity.

Contra-agential ethics fare no better from the lawyer's standpoint; they defame lawyers as unethical for infractions that don't involve ethical lapses. An attorney's ethical duties follow from the requirements of the attorney role, a role that must be one of strict agency to respect the represented party's right to be heard; strict-agency's requirements dictate the ethical imperatives: loyalty to the agent's principal and truthfulness in matters of the agency. A lawyer's ethical character is reflected in his obedience to these ethical mandates, not to court orders. Contra-agential ethics taint lawyers with allegations of moral turpitude when the offense consists of acts that are ethically neutral, such as violating administrative rules, or even ethically exemplary, such as defying judicial authority at personal risk to protect a client.

2.1.1 Abolish vexatious-litigant security deposits

2009-11-23T20:09:00.001-08:00

Like every witch-hunt, the persecution of the litigious damages general jurisprudence. In California the judiciary's self-serving ratification of the vexatious litigant statute's security-deposit procedures has done the worst damage. The statute permits the court or other party to move to condition the vexatious litigant's right to prosecute the action on his posting a security deposit to cover the opposing party's reasonable expenses, including attorney fees. To grant the motion for a security deposit, the court must find that the plaintiff doesn't have any reasonable probability for success on the merits. In the California Supreme Court case dealing with the provision's constitutionality, the court erroneously held the trial court can weigh the evidence to condition civil trials on vexatious-litigation security deposits without violating California's state-constitutional right to trial by jury. (See Moran v. Murtaugh Miller Meyer & Nelson (2007) 40 Cal.4th 780.)

The right to a jury trial is the strongest argument against allowing the court to weigh the evidence at a summary proceeding, but the Supreme Court was cursory in analysis and fatuous in conclusion: "The grant of a [motion for plaintiff to post security] does not preclude a trial; it merely requires a plaintiff to post security." (Moran, supra.) The court ignores settled law holding that "while the Legislature can adopt reasonable procedural requirements for the enforcement of [a self-enforcing constitutional right such as to a jury trial], it can do nothing which would unreasonably curtail or impair it." (Vinnicombe v. State (1959) 172 Cal.App.2d 54, 56.)

California's anti-SLAPP statute provides for a summary procedure for lawsuits potentially aimed at inhibiting exercise of basic rights. A SLAPP suit is a kind of vexatious lawsuit, and other potentially vexatious lawsuits shouldn't face obstacles exceeding those imposed by the anti-SLAPP statute, which prohibits weighing the evidence. The most coherent way to adjudicate potentially vexatious litigation summarily is to expand the anti-SLAPP statute to include lawsuits that are demonstrably part of a vexatious pattern.

7.1 Is “same-sex marriage” coherent?

2009-10-27T16:21:00.001-07:00

In re Marriage Cases (2008) 43 Cal.4th 757, Chief Justice George designed a silly argument to claim that limiting marriage to heterosexual couplings violated a fundamental California right: the right to marry. California courts recognized a fundamental right to marry when they invalidated a Jim Crow law against interracial marriage. Held, the fundamental right to marriage can't be abridged. Blacks had been told that they already had the right to marry–other blacks—but limiting whom they could marry restricted the exercise of a fundamental right. (Perez v. Sharp (1948) 32 Cal.2d 711). In Perez, no question existed that the interracial relationship the court sanctioned was properly termed "marriage." A right to x is limited precisely and expressly by x's definition, an impediment to transposing the logic of black marital integrationism to same-sex marriage. If marriage means pair bonding between oppositely gendered persons, one can't derive from a right to "marriage" the marital prerogative for persons identically gendered. Limiting the right to marry by the definition of the term "marry" itself imports no artificial restriction. A legal right to "marry" can only follow the definition of "marry."

The semantics of "marriage" don't determine the civil rights of gays. To argue same-sex marriage based on a right to marriage is absurd: marriage means opposite-sex bondings; to argue against a right to same-sex marriage merely because a "right to marry" cannot justify it is unwarranted. If gays should be allowed to enter into official "marriages" because legal right so requires, the right in question is not the right to "marry." The argument required of Chief Justice George is more complicated than demonstrating "marriage" is a right: he needs to infer a broader right which the right to marry merely expresses. This broader right, not Chief Justice George's tortured justification, is same-sex marriage's vision. To construct this broader right, the gay visionary purifies the ordinary meaning of the term "marriage"--which includes two elements: pair bonding and sexual complementarity—to a pair-bonding core, notwithstanding that by ordinary meaning sexual complementarity is a stronger requirement than pair bonding, polygamy and group marriage forms of "marriage" stretching the terms only slightly. Ordinary-language's emphasis on sexual complementarity bespeaks an ordinary-meaning definition of "marriage" centered on bringing up children born of the supporting parents; but gay visionaries celebrate a different virtue, the dyadic bond combining sex, economic responsibility, and affection

A right for gays to marry each other needn't derive, as a matter of logic, from principles that mention "marriage," but Chief Justice George must maintain that when courts held that people have the right to "marry," they actually meant state recognition for pair-bonding relationships identical to marriage except not featuring sexual complementarity. This concept of the sanctity of marriage-like pair bonding is the same-sex marriage vision. What deserve protection on this view are long-term relationships based in prototype on romantic love, combining sexual and economic commitment. Advocates hold that celebrating and protecting this relationship is what truly justifies upholding marriage as a legal status.

When fleshed out, the same-sex marriage issue, a question of social vision, isn't judicial, and the logical leaps are not merely legal. Psychology hasn't seriously addressed whether the affective core of same-sex pair bonding is identical to that prototypically found in sexually complementary relationships.

7.0 “In re marriage cases” and the problem of nondiscrete suspect classes

2009-10-10T11:52:00.001-07:00

Starting in the late 30s, U.S. jurisdictions have favored — as the framework mechanism for prioritizing equal-protection rights — delineating suspect classes, whose interests call for searching scrutiny and a presumption of impropriety when laws specifically disadvantage them. The California decision In re Marriage Cases (2008) 43 Cal.4th 757, better known for briefly providing gays with the option of intermarriage, again raised issues concerning how suspect classes are determined. Does admitting gays to the status of a suspect class expand the equal protection of the law, or does it dilute "suspect class," hence, protections offered to the classic exemplars, race and national origin?

While political reasons explain why gays are now a suspect class in California but aren't even entitled to intermediate scrutiny under federal law, the difference between California state law and federal law provides another vantage for comparison. The correct application of the standards each jurisdiction accepts rationally explains the different conclusions, without withdrawing the question of which criterion is sounder.

The federal criteria for a suspect class are usually stated as:

(1) A discrete and insular minority who (2) possess an immutable trait (3) share a history of discrimination, and (4) are powerless to protect themselves via the political process.

These contrast with the California criteria:

(1) An immutable trait with (2) no relationship to a person's ability to perform or contribute to society and (3) associated with a stigma of inferiority and second-class citizenship.

The critical difference — one often ignored and seldom subject to exegesis — is that California lacks the requirement for a suspect class that the minority discriminated against must be "discrete;" assessing California constitutional procedure requires analyzing the meaning and function of this federal requirement. A discrete class is one well defined to set it off from other classes; it has sharp boundaries, rather than being continuous and subtly grading into other categories. Race, for example, is a discrete class, at least formally speaking, because no question of degree is involved in answering whether a person belongs to a given race. As supposedly biological groups, racial categories are not distinct. Not only are races not well-defined separate groups, but a person may be said to belong to a race by degree: one may said, for instance, to be 1/8 black. But as a social category, race is treated as distinct. Races in use typically have a decisive criterion, such as the rule that with any ascertainable black lineage is black.

Why aren't short people a suspect class? Research attests to the disadvantages of being short, attests to the prejudice of the taller population and even of the short themselves against the short of stature. Short people do not form a discrete class. No boundary demarcates the merely height challenged from the egregiously diminutive. The nondiscreteness of a class such as short people is significant for constitutional analysis for two reasons. First, a nondiscrete category will be less apt to be subject to serious discrimination because the very short will tend to find political allies among the shortish. The very short might indeed be subject to serious animus if they were isolated from their similars. The prejudice against a man 5 feet six inches may represent only a statistical trend. But might a man 4 feet six inches often be perceived as strange, even creepy? But the absence of any point where degree changes to kind makes it unlikely that the very short will be singled out for persecution. An attack on the 4-feet-six inchers will threaten the 5-feet-two inchers, of whom there might be many enough to preclude the persecution of the first group. Second, short people are hard to protect in the unlikely circumstance they are the object of persecution. Because short people aren't a discrete class, protection offered to those discriminated against by height knows no natural limits. A six footer might make the case that a person 6-feet-6 inches received unjustified favored treatment based on the irrational stereotype that tall people are smarter or in other ways better.

Discreteness's importance as a criterion for suspect classes is apparent when discreteness greater than for height applies but less than for race or national origin. City of Cleburne v. Cleburne Living Center considered whether denial of a permit to build housing for the mentally retarded violates their right to equal protection. The City of Cleburne court claimed to apply a rational-basis test for equal protection, but the case provides the kind of searching scrutiny that would be warranted only if the mentally retarded were a suspect class or, at least, entitled to heightened scrutiny. The court seemed unable to make up its mind because of the borderline status of mental retardation respecting class discreteness. (See City of Cleburne v. Cleburne Living Center (1985) 473 U.S. 432.) Mental retardation might be thought the nondiscrete low end of the intelligence continuum, so that prejudice against the retarded is checked in its implementation by numerous nonretarded dullards who might be threatened by discrimination against the retarded, but mental retardation means more than having a low IQ; psychologists have tried to define a class with more definite functional significance: a diagnosis of mental retardation represents a judgment that the person's mental equipment isn't good enough for surviving independently. The mentally retarded are arguably a discrete class.

Discreteness's importance is highlighted by considering the constitutional protection (not) afforded the impoverished: does impoverishment or indigence create a suspect class? While American law's nonchalance about the disparate financial resources of parties cries out for correction, the impoverished are unlikely to be recognized as a suspect class, even if the political prospects were more favorable. One's ability to legally defend one's rights depends in continuous fashion on one's financial resources. Carving out a discrete class of indigent citizens deserving of strict or heightened scrutiny founders on the absence of any natural boundaries circumscribing those legally disadvantaged due to poverty.

If a gene caused homosexuality, gays would form a discrete class, a consideration that may go far to explain the unlikely popularity of the biological-determinist theory among gay-rights supporters. The scientific reality is different. As Freud observed and Masters and Johnson demonstrated, humanity is inherently bisexual; what differs is the weight a person's constitution and personality allocates to adult sexuality's heterosexual and homosexual components. No discrete population of "homosexuals" exists; only varying degrees of orientational masculinity and femininity. To protect gays as a suspect class must entail protecting everyone against discrimination by the more masculine (speaking of males). Homosexuality's continuity also protects against discrimination. An attack on the flagrantly gay meets opposition from the somewhat gay, who sense that hypermasculinity run amuck would compromise their interests.

Yet, reality seems otherwise. There seems a discrete group of gays, intent on marrying one another, who identify themselves as gay and thus seem to form a discrete class. This appearance is the key to understanding one of the main reasons the constitution cannot effectively protect against discrimination to a nondiscrete class. A discrete group identifying itself as "gay" no doubt exists, but the discreteness derives not from a qualitative difference between homosexuals and heterosexuals but from the discreteness of the very category consisting of those identifying themselves with the label. Protecting this category as a suspect class not only bumps up against the requirement of immutability. It also contradicts the requirement that membership in a class deemed protected not raise rational questions about group-membership's relevance to the societal contribution of the group members.

6.0 Constitutional interpretation and the scope of birthright citizenship

2009-09-27T16:37:00.001-07:00

Who counts as a citizen of the country is a framework question. Does the 14^th Amendment confer birthright citizenship on the sons and daughters of all immigrants, even those illegally present? Or does the ambiguity of the concept of "jurisdiction" leave room for laws defining natural citizenship less broadly? The puzzle's solution depends on what method of constitutional interpretation you apply.

Our issue is interpreting the first clause of Section 1 of the 14^th Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

The ambiguity of "jurisdiction"—a context-bound concept in U.S. law—sets the problem. I earlier concluded that textualist interpretation offers much to recommend jurisprudentially, as it comports with American Constitutionalism. Using essentially textualist methods, the U. S. Supreme Court held for the broadest birthright-citizenship in dicta in the thorough opinion United States v. Wong Kim Ark (1898) 169 U.S. 649. The Wong Kim Ark court found the term's meaning authoritatively interpreted in the earlier decision The Exchange (1812) 7 Cranch. 116. (See Wong Kim Ark, supra at p. 683.) Note the rule-governed, text-based nature of the interpretation in this passage:

By the civil rights act of 1866, 'all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed,' were declared to be citizens of the United States. In the light of the law as previously established, and of the history of the times, it can hardly be doubted that the words of that act, 'not subject to any foreign power,' were not intended to exclude any children born in this country from the citizenship which would theretofore have been their birthright; or, for instance, for the first time in our history, to deny the right of citizenship to native-born children or foreign white parents not in the diplomatic service of their own country, nor in hostile occupation of part of our territory. But any possible doubt in this regard was removed when the negative words of the civil rights act, 'not subject to any foreign power,' gave way, in the fourteenth amendment of the constitution, to the affirmative words, 'subject to the jurisdiction of the United States.'

(Wong Kim Ark, supra at p. 688.)

Notice the use of analytic rules, a kind of common law of interpretation. In construing "jurisdiction" the court solves the puzzle like an equation, substituting a definition obtained from an earlier case. This is excellent textual analysis, but as authority, it is dicta: Wong Kim Ark found that one foreigners' son was not a citizen because he was born outside the U.S.

The Wong Kim Ark dictum wouldn't deter an Originalist; he observes that the 14^th Amendment, designed to grant citizenship to slaves, did not have the offspring of illegal immigrants in contemplation: the United States hadn't yet passed any immigration laws. Strong Originalists are loathe to restrict the power of Congress when the legislation forbidden was outside the originators' contemplation, but omission of any protection not in the original contemplation is an extreme Originalist variant, which struggles hopelessly against vagueness, as it supplies no guidance on how much information about a future event must fall outside the originators' anticipation to disqualify. Professor Richard A. Posner proposed a more moderate Originalism, according to which the judge must place himself in the position of the originators: what would the originators advocate if they could foresee the new conditions, assuming the least historical modification yet placing the matter in the judge's purview. Using this approach, a court could imagine what the originators would have provided if immigration restrictions had existed at the time of the 14th Amendment's promulgation. An Originalist judge would likely rule that the patriotic originators, having won a war to preserve the Union, would not have intended to provide a law-breaking incentive which yielded no offsetting gain for the extant inhabitants. Such a judge would be likely to rule that an illegal immigrant's child is not—in the sense the proponents and ratifiers intended—born within the "jurisdiction" of the United States.

5.15 Conclusion. So, how is judicial statutory interpretation possible in the absence of a consensual interpretive theory?

2009-09-23T14:30:00.001-07:00

(Fifteenth in series: The interpretation of statutes and the denial of judges' powers.)

To sum up this investigation — what's the solution to the interpretive enigma: judges agree on interpretations, despite disagreeing on what a legal interpreter should do? The solution consists of two constraints: the logically inevitable common law of statutory interpretation and the politically necessitated convergence of judicial interpretations.

The common law of interpretation — the reigning theory articulating a legal culture's interpretive practices — includes such loose and defeasible constraints like the maxims of construction. Other examples from the common-law of statutory interpretation are some jurisdictions' rules governing when "shall" is construed as "must" versus "may." The common law of statutory interpretation is underarticulated.

Why has the important role of the common law in statutory interpretation suffered neglect, this obvious concept sometimes rejected on jurisprudential principle? Scholars underestimate the interpretive-common-laws' constraint because it works in tandem with a second constraint, one not necessarily within jurists' awareness. Scholars ignore that constitutions can cause themselves to be construed a certain way without the construction being implied by its provisions. The historical tendency for interpretations to converge in line with the constitution's structural designations is proposed an example of how a constitution influences its long-term construction.

5.14 Checks and Balances at Trial

2009-09-16T11:40:00.001-07:00

(For best understanding read the companion kanBARoo court 68th Installment first: No to Victim-Impact Statements.)

(Fourteenth in series: The interpretation of statutes and the denial of judges' powers.)

The system of checks and balances at the core of the American constitutional system penetrates the government structure and, increasingly, legal categories are conceived in its terms. Does the system expand even to legal domains whose constitutional logic demands other principles? Applying balancing concepts to rights where rights are absurd — asserting the so-called rights of victims of crime — may be an example.

The oxymoronic victims'-rights movement asserts the rights of the victims of crime against criminal defendants, although the U.S. Constitution provides no victims' rights and the logic of giving criminal defendants rights' protection, when defendants must battle an opponent as powerful as the state, doesn't logically generalize to supplying victims — who are not even the defendants' legal adversaries — parallel rights. Yet, the 50 states and federal government, under intense political pressure, have granted victims the right to stage diatribes against criminal defendants in noncapital cases, in 38 states in capital cases, for which the U.S. Supreme Court holds provisions for victim-impact statements are valid, overturning two of its decisions taken within five years.

The opinions of the justices who legitimatize victim-impact statements are largely based on balancing the rights of defendants to introduce evidence in mitigation. The dissenting justices' opinions in the cases overturned are striking in demonstrating how far astray the checking-and-balancing framework can lead when misapplied.

Consider Justice White's dissent in Booth v. Maryland:

If anything, I would think that victim impact statements are particularly appropriate evidence in capital sentencing hearings: the State has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in [citation] by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.

(Booth v. Maryland (1987) 482 U.S. 496, 517 [dis. opn. White, J.])

Or consider Justice Scalia's dissent in the same case:

To require, as we have, that all mitigating factors which render capital punishment a harsh penalty in the particular case be placed before the sentencing authority, while simultaneously requiring, as we do today, that evidence of much of the human suffering the defendant has inflicted be suppressed, is in effect to prescribe a debate on the appropriateness of the capital penalty with one side muted.

(Booth v. Maryland, supra at p. 520 [dis. opn. Scalia, J.].)

Justices Scalia, White, and O'Connor, who joined the opinions, make a balancing argument in which victim-impact statements balance mitigating evidence, despite the wholly different constitutional logic applying to victim and criminal defendant.

5.13 Constitutionalism is secessionist

2009-08-16T14:28:00.001-07:00

(Thirteenth in series: The interpretation of statutes and the denial of judges' powers.)

The obvious reason to think secession is Constitutionalism's weakest point is that's where Constitutionalism almost broke. The Federal government won the Civil War militarily and morally, but neither victory meant the North had the better legal theory. Secessionist movements continue to lurk at the social margins because Constitutionalism's logic favors the right of states to secede.

The U.S. Constitution contains vertical as well as horizontal checks and balances, the federal government balanced by the states. The federal government can preempt the states in distinct domains, but outside, the States have exclusive jurisdiction. Yet, the system is ultimately unbalanced, in that a branch of the federal government resolves conflicts between the states and the federal government. Unlike other checks, where each evokes a potential countercheck, the states can't answer an adverse decision by the U.S. Supreme Court. The Supreme Court may be sympathetic to states' rights, but the long-run trend is in the opposite direction to the extent the structural factor determines the drift.

The federal government continually gains power at the states' expense. To note this trend is not to extol states' rights or to maintain they beneficially check the federal government but only to mention a consequence of structural imbalance; nor is it to say that the imbalance — the structural deviation from blueprint — lacks adverse consequences. Missing for a true system of mutual checks is the necessary counterweight in a system where states' rights are supposed to endure: the right of the states to secede. That secessionism is simultaneously inimical to the Constitutional system points to Constitutionalism's peril, not its salvation, but secessionist movements' failure also shows that for general historical determinism legal structure isn't omnipotent.

5.12 Checking and balancing a country until it disintegrates

2009-08-12T18:11:00.001-07:00

(Twelfth in series: The interpretation of statutes and the denial of judges' powers.)

Freed from Europe's traditional fetters, the American republic quickly invented its own. A pluralist society might seem ideal for instituting checks and balances, but pluralism undermines the Constitutionalist system. Pluralism causes the system to check the functioning of the system itself by stymying the process of one governmental branch stymying another. Each branch is itself subject to checks and balances, each balancing act involving so broad a mix of sectoral interests that the law of large numbers eliminates the possibility that government branches will ever differ deeply on policy.

Multiplicity of interests neutralizes the top levels of the system of checks and balances as these ramify downward. A system of checks and balances leads to the balancing test as the basic decisional mechanism in constitutional law because diverse substantive matters, such as rights, express a conflict between upstream institutions that the courts must keep in balance. Balancing tests ramify downward because of the mechanism's logic and the metaphor's power. If in deciding A you balance B against C, and over time changes in law and in society make C controversial, at that point it is natural to balance D and E as factors contributing to C. Changes in law and social circumstance require balancing at progressively lower levels: balancing ceases to be about balance if subordinate allocations disregard relative weight.

Checks and balances encourage interests to manipulate branches of government to maintain the status quo because interests can readily impose themselves, even when only mildly concerned. Interests are encouraged to feed omnivorously because their influence depends on relation to the decisionmaker, rather than issue relevance. Every controversy embroils numerous interests. The most powerful interests stay most powerful, but their influence is felt across the board, not selectively. The result engages the whole system and nullifies the topmost checks and balances.

With checks and balances in a politically sectoralized society, which the Founders vainly imagined capitalist pluralism could avoid, the government suffers paralysis when it must choose among options affecting numerous interests. Checks and balances in a politically sectoralized society translate as paralysis rather than caution, this in an era when the presumption against state action disappears. A different structural principle, notably parliamentary supremacy, differs in the engendered pattern of interested intervention. Government form is a source of American backwardness in areas such as infrastructure and education.

The Constitutional system chokes structural change — so, for example, the Government offers handouts to huge malfunctioning banks because achieving nationalization is systemically impossible — yet, Constitutionalism is so entrenched that a run around the law is unlikely. Fears arise that Constitutionalism will fracture at its weakest point — secession. (See http://tinyurl.com/l64egw.)