Unified View

Politics and the Judiciary

2007-08-19T04:21:00.000+01:00

There is a wide debate on the role of politics in adjudication, and I am going to wade in and say that it's not a good idea. No, really. This brings a number of difficult problems. Firstly, what about those times where judgement seems necessarily to fall on political lines? Secondly, and more pointedly, how do I reconcile this, which in the US is the line espoused mostly by conservatives, with myself firmly being a liberal?

Well, let's look at the American model. My favourite American legal / political blogger, Publius, has said that judicial appointments are and should be about the politics of the potential appointees:

"To be clear, I’m not denouncing this politicization at all. Just the opposite, in fact...Nominations should be about politics because judging is inherently and necessarily political. You simply can’t avoid it, so we should stop trying to."

With respect to the writer, I think that he is completely wrong here. However, I can see why he has come to this conclusion. In the US, Constitutional law has become highly politicised. When interpreting things like freedom of speech, freedom of religion, sexual issues and issues of race and affirmative action, the Supreme Court increasingly splits along political lines. This has got to the point where it is thought of as a political arena, something of an analogy to our (legislative) House of Lords: It has a crucial legislative role but democracy only filters through to it very slowly through appointments from the ruling primary legisature / executive, which last long after the appointing administration has gone from office. The Bush administration has long used this to control its voters even when it has done nothing for many of them - "They'll appoint judges who will one day overturn Roe!" is practically a desperate conservative slogan, (Roe v Wade being the landmark Supreme Court decision requiring that abortions be permitted up to a certain time in pregnancy). Control of the Supreme Court, and to a lesser extent, of lower courts, has become a deliberately partisan issue.

The British model is very, very different. Here, accusations of political bias among the judiciary are rare and taken seriously, and such judges looked down upon. The vast majority of adjudication is done on an intellectual level, leaving policy judgements to the legislature. For this a number of interpretive doctrines have grown up which are generally applied well, with deviations harshly criticised. Legislative intent is crucial with statute, and for both statute and precedent, looking at the harm meant to be avoided is essential. Where there is no real answer and the court really does have to create new law, the general way forward is not to upset the understood balance, leaving it to Parliament to make the assessment of whether it would be a good idea. Again, judges are harshly criticised when they do otherwise. The idea of politicising appointments would be completely abhorrent here.

I think the British way is just far, far superior. It will lead to judicial conservatism but I cannot help feeling that that is healthy, due to the severe lack of democratic control and accountability of the judiciary, which while necessary for its impartiality, leaves it in a bad position to determine policy. It should be left to the most democratic institutions as much as possible to develop policy. The judiciary should act within the reasonably determinable scope of what the legislature would have done or would do, and where this is controversial it should be left to the legislature to determine. I rather like the idea of creating a method whereby truly political questions can be submitted to the legislature to answer - not to determine the case, only the question of law - but that is an idea I will have to develop another time.

Now I can't help feeling that in an ideal world my ideological cousins in the US would agree with me. Liberals have traditionally been strong proponents of the separation of powers. So what has happened? Why is it that US conservatives are now the ones who talk about keeping politics out of lawmaking?

I think that the primary differences which vastly change the situation over there are the Constitution and specifically the amendment procedure, and the federal nature of the US. The amendment procedure is incredibly onerous, requiring the consent of 2/3 of both Houses of Congress and 2/3 of state legislatures, an incredible feat. The result of this is stagnation, which suits conservatives: Even where the public as a whole is ready for change in Constitutional provisions, it is almost impossible to get it done. The Supreme Court is able to remedy some of this stagnation by acting in the name of good policy and the public will.

The other intertwining feature, the federal system, is perhaps even more problematic. The Constitution given limited powers to the federal government and reserves many powers for the states. Meanwhile, citizens identify strongly with the US as a whole, and so are immensely keen to mould other parts of it according to their own preferences in a way that they would not when it came to other countries. To give a British analogy, if Yorkshire decided to allow wife beating within its borders, the rest of the country would be outraged in a way it would not about Middle Eastern countries. Now here, we can do something about it through Westminster Parliament. In the US, on some issues there is no clear way to do so, and because of the difficulty of getting an Amendment together, the only clear way is to get the Supreme Court involved. So the Supreme Court followed the general mood of the country in developing a right to privacy to act against certain reactionary states which do things like ban homosexuality (Texas and others, until 2003) or sex toys (Alabama and others, still), or of course abortion (which led to Roe v Wade) - something which rankles conservatives no end. Where there was no democratic way for the country as a whole to determine these issues, the Supreme Court was made to do it instead.

Essentially, what these two elements mean is that in the US, the Supreme Court has been used to overcome deficiencies in democratic control and accountability. Still, it is a perversion of the function of courts, because it is also lacking in these qualities and because it makes objective application of laws impossible. Not only does politicisation mean that judicial interpretation will lag far behind the ideologies favoured by the electorate, but legal process will become more and more a cynical game of legal realism, determining judgements not according to what makes sense or follows precedent, but who is to be judging. Legal certainty and the separation of powers take terrible hits.

In Britain we don't have anything like these problems. Admittedly, sometimes judges cannot resist applying their political beliefs to cases, but they are roundly critised for it. But any question can, as a fall back, be left to Parliament without fear that they will be unable to deal with it. This suggests that any limits we place on Parliamentary action need to be subject to change at the behest of the electorate (a subject I will consider at another time). Furthermore, we have nothing like the level of federalisation of the US, and this analysis suggests that we should be careful how much we allow to be devolved - when something outrages the moral sentiment of the rest of the country, the people need to be able to rectify it democratically.

Publius suggests that people start baldly supporting or opposing judicial candidates according to their politics, just as in elections. I suggest instead that the US would benefit far more from centralising more power over 'moral' issues and making Amendments much easier. I recognise that neither are likely to happen any time soon. But only then will the Supreme Court be able to get back to its proper task of judging, and candidates can be considered harshly if they look like they are going to apply political bias - any political bias - to their adjudications.

Tort's Wrongs, Conclusion: A New Frontier

2007-06-29T23:29:00.000+01:00

In the past posts I have given three examples of the tension in tort law between its compensatory role and its penal role. The latter is habitually denied by judges but is impossible to ignore without the appearance of great injustice, given that liability is generally attached according to some form of moral culpability.

The result is that Tort law as a whole survives without a clear rationale. If it were meant to compensate claimants, then why require strict standards of causation to link the loss to the action of another? Why grant damages based on what is lost regardless of money's ability to actually help? Why only penalise employers where a tort is in the course of employment and the tortfeasor is an employee rather than a contractor? On the other hand, if it were meant to penalise wrongdoing, then why only extract damages where actual harm has come about and a causal link established? Why determine damages according to loss rather than degree of fault? Why punish employers who could not have prevented employee torts?

Small changes could be made in the interests of more intuitive justice. In the causation area, so much progress could be made by looking at all damage in terms of chance of causation and discounting it appropriately, rather than the all or nothing approach at the moment. This would mean that if medical negligence is 30% likely to have been the cause of harm, the hospital should be liable for 30% of total damages. Equally among those responsible for asbestos or coal dust poisoning, where damages should be apportioned according to the contribution of each individual, and need not add up to 100% due to potential non-tortious factors. In the vicarious liability context, a rationale (and possibly a test) based on employer conduct in putting someone in the position to do wrong would be far preferable to the current mess.

However, such reforms cannot address the problem at the heart of the matter. As I hope to have demonstrated, the only way to rationalise the mess of tort law is to separate out the punitive and compensatory functions, and I propose to do this similarly to how Atiyah originally suggested (before he fell in love with private insurance). This would leave tort law as a purely punitive system alongside criminal law, with actions brought by the state. Its rationale would be to disincentivise wrongdoing, extracting money according to the degree of fault. Ideally, this would not rely on someone actually having been harmed - unjustifiably causing a risk of this would be enough - although this would usually be the best evidence that a tort had been committed. Meanwhile compensation would be dealt with through the same mechanism as compensation where one is hurt in a pure accident, because there appears to be no moral distinction explaining why the mechanisms should be different, once punishment is dealt with separately. Thus I say that social security payments should compensate all injuries, and the money available for this cause should be supplemented with all of that extracted from tortfeasors through the new system.

Once one realises that there is no real justification for the discrepancies between victims of tortfeasors who can affort to pay, victims of tortfeasors who cannot afford to pay (or who cannot themselves afford to go to court), and victims of non-tortious accidents, this appears to be only common sense. However, one big objection to it is that the social security system is generally inadequate for helping people who have received injuries. Therefore at least tort sometimes yields full compensation, and so should be maintained. The idea here is that even between state input and tort awards, there is not enough money for everyone.

The first response to this is to suggest that the state should be willing to put more money into social security to ensure adequate money is given to those in need. However, given the difficulties of this evidenced by systems across the world, more than this is necessary. The suggestion has been that it is better that some injuries are fully compensated and others barely, rather than all being somewhat compensated. There may be something to this. Clearly when we consider catastrophic injuries, only full compensation may help one to get their life back on track, so under-compensating absolutely everyone will give the worst of all worlds.

However, the current tort / social security distinction apportions funds to the injured based on what amount to random and irrelevant circumstances. We may as well pick from a hat those lucky few who are to be fully compensated. Instead, under my proposed system, the state should prioritise the catastrophically injured over those with minor injuries, making sure that the worst off get full compensation to ensure that overall, the minimum possible disruption to lives occurs through injuries.This may appear unfair to those with relatively minor injuries. But it should be kept in mind that our starting premise was that someone will have to lose out due to lack of funds. This prioritisation approach seems better than inadequately compensating absolutely everyone, and also better than randomly fully compensating some but not others.

What are the benefits of my proposed system (which is in truth, not my system at all, but is based on the system in places like New Zealand)? Firstly, it properly penalises wrongdoers according to their wrong and so accords with intuitive justice. Secondly, it avoids the incredible arbitrariness of the current system by which people receive money for injuries, replacing it with prioritisation for those most in need. It avoids the problems of a supposedly litigious culture and also the difficulties for ordinary people attempting to go to court (the financial risks, loss of time, and personal effort) by giving that responsibility to the state. Indeed, the financial point should be emphasised. Poor victims have much more trouble getting compensation than the rich because they often cannot afford the time, bare costs and decent lawyers to effectively go to court, creating a class divide in compensation. My system gives compensation according to need, not resources, while creating a responsible society through adequate punishment for wrongdoing.

Finally, I should point out some of the shortcomings of my system, purely in terms of its scope. The whole way through this I have dealt with personal injury, often considered the central case of tort (and Burrows argues that tort should be restricted to this). I do not see a problem with extension to damage to / loss of property, where priority compensation should go to those who lose more essential property like houses. There is more of a problem when it comes to defamation, but is still potentially possible where irreparable damage to reputation should be prioritised. The difficulties of adequately weighing these three areas together suggest to me that they should be compensated from separate pots, but that is subject to much further consideration. Finally, Burrows raises the spectre of nationalised damages for breach of contract. I see both sides of the argument here, as I see contracts as involving promises between parties creating a special relationship not present in the tort context, but I also know that the ability to recover damages depends on the party with which one has contracted staying solvent. Perhaps we can say that the act of contracting contains with in it assumption of the risk of the other's insolvency in a way which tort acts (in which the victim is usually involved involuntarily) do not. I am unsure on this point and would welcome comment. Nevertheless, these difficulties aside, I am quite convinced that it is quite time for tort law to undergo some major changes.

Tort's Wrongs, Part 3: The Impecunious Defendant

2007-04-22T18:09:00.000+01:00

The final example I shall use in this series is theoretically the simplest. It deals with the ability of the defendant to pay the compensation ordered. Simply put, even if a case is watertight and a favourable ruling guaranteed, it is just not worth anyone's time and trouble to sue a tortfeasor with little money. Such a claimant would take as much as the defendant had and then be forced to rely on the state welfare system along with all those who suffer non-tortious injuries - receiving a far lower degree of compensation.

Without some ingenious legal methods, this would massively lower the effectiveness of tort law as a corrective system - the majority of people cannot personally afford to pay the costs ordered in compensation. However, methods have been used with the effect of greatly increasing the number of cases where claimants are able to get full compensation. Of these, by far the most significant is vicarious liability of employers.

Vicarious liability is liability for someone else's acts. Clearly where an employer can be found vicariously liable for an employee's tort, the claimant is in luck - companies are far more likely to have the resources (and often liability insurance) to compensate them fully. But why are the employers liable? This is a controversial issue involving many theories, but these can be roughly split into two camps:

On the one hand, there are theories that the employer has in fact done something morally culpable, making it just to make them compensate. Perhaps the employer is culpably responsible for the chance for the employee to commit the tort, or should pay the costs of an activity from which it takes profits. Such theories are intuitively attractive as satisfying the moral hurdle usually required for liability. However, it does not really mesh with the reality of the situation. Firstly, because the employer cannot discharge such a duty no matter how comprehensive the methods it uses. So even if it takes all steps possible to prevent employee torts, it will still be liable if such torts occur. Moreover, once a tort is established on the part of the employee, none of the normal tort defences can be invoked by the employer. Secondly, the liability only applies in the case of employees, not independent contractors. Case law on the distinction is complicated, but suffice to say that the kinds of criteria by which the distinction is applied do not really suggest a clear line in the moral responsibility of the employer. The result of these observations is that it is difficult to view vicarious liability as simply a form of primary liability.

On the other hand we have theories that moral culpability on the part of the employer is entirely irrelevant, and that what is important is ensuring compensation. The fact that employers are more likely to be able to pay is used as the justification for making them pay, either simply because they have deep pockets or because this is the best way to spread the loss to society as a whole through their customers, who will bear slightly higher prices. Textbook writers have suggested that courts lean more and more in this direction, but of course from the point of view of morality or justice this looks completely unprincipled. Those who are able to invoke vicarious liability can rely on this 'loss spreading' rationale while those hurt by individuals just being individuals are often short-changed by the tort system. Meanwhile companies which may be no more morally culpable than any others have to bear the brunt of paying compensation. Even if they can spread the loss, it will usually still be to their detriment.

The inability of employers to exclude liability through reasonable precautions makes sense on this rationale. So does the distinction between employees and contractors, in a way - individuals often hire contractors (not employees) to perform jobs around their houses, and courts are eager to avoid forcing them to pay for such contractors' torts. More honest (and less arbitrary) would be to draw the line according to whether the employer was acting as a business or as an individual, but this would expose the rationale to more direct scrutiny: It might well be thought unfair that a business is liable but an individual is not for the same conduct.

Once a tort and a contract of employment is established, the last limiting factor for vicarious liability is that the tort be done in the course of employment. This may sound like common sense, but without some fault element on the part of employers, it is baffling. If the employer need not have any moral culpability for the torts, why should it matter whether or not they were done on company time? If loss spreading is the aim, why not make all employers vicariously liable for torts committed by current employees no matter what the connection to their work?

The traditional test for a course of employment is the 'Salmond test', that the tort be authorised by the employer or be an unauthorised way of doing an authorised task. The first of these is unproblematic - this would make the employer morally culpable. The second appears to be neat, but as mentioned above there is no way to exclude liability. Rose v Plenty determined that even if the employer specifically forbids the employee from acting in the manner in question (here, using the help of young children to complete a milk round), they will still be vicariously liable for it.

The test for course of employment changed in Lister v Hesley Hall (and for the better, all things considered) but it only got wider. This was a case about a school boarding house where the warden abused the children. The House of Lords found that this could not be seen as a way of doing his task. However vicarious liability was assured under the new test of the tort being 'closely connected with the employment'. This standard is more vague and difficult to apply, but it does better reflect our sense of justice. If he had failed to stop someone else from abusing them, this would have been negligent performance of an authorised task (looking after them) so negating vicarious liability because it was him doing the abusing would appear absurd. After all, the distinction appears to have nothing whatsoever to do with the moral position of the employer - we may well consider them more at fault for hiring a paedophile than a mere idiot.

Our instincts drag us back towards a view resting vicarious liability on some form of moral culpability. I would support this - I am certainly not arguing against all vicarious liability. Employers create situations which reckless and malicious employees can exploit in ways otherwise impossible - Hesley Hall is an example. However a loss spreading rationale seems to preclude such considerations, insisting instead that the claimant be compensated one way or another. I certainly have sympathy with that impulse, but its effect on tort law has been to create even more arbitrariness and separate it further from the penal function which intuitive justice requires. Just as in the previous examples I have put forward, actual fault should determine the liability of defendants, not the claimant's need. The latter should be satisfied, but this is true whether vicarious liability can be found, whether it is just the tort of the random (and often broke) man in the street, or whether no-one is tortiously at fault (in a random accident). In my final post on this topic, I will attempt to show how such a split of the penal and compensatory functions of tort law could be achieved, and its implications.

Tort's Wrongs, Part 2: Damages and Loss

2007-04-07T05:01:00.000+01:00

In the previous post I suggested that instinctive justice required a penal element to tort law, in the area of causation. Today I will argue the same thing in an area which actually has, in some ways, been modified in line with that - assessment of damages.

Assessment of tort damages was always going to be a difficult enterprise. For starters, it is inevitably incredibly difficult and fictionalised to put monetary amounts to certain kinds of loss, like pain, cuts and the loss of limbs. However, the problems I will be looking at are more about tension between different theories of what compensation should do. The two crucial theories are that objective loss (loss in comparison to an alternate world where the tort never happened) should be compensated, and that compensation should be required as far as it is in fact possible to cure someone (to the state in which they would be in the alternate world). Some cases will show why I think the first of these to be vastly superior.

Firstly, we have the West v Shephard situation of a tort putting someone into a permanent vegitative state. The costs of care for him were vastly less than the money he would have received for loss of amenity, loss of earnings etc. had he been awake to appreciate these losses. However compensation could not in fact do him any more good than compensating the cost of care. The Law Lords were split in the measure of damages. Lord Reid felt that damages must actually be able to help the person in some way, improving their position, and so would have limited them to the cost of care. However the majority went with Lord Devlin who thought that the compensation should reflect the actual loss, even if not appreciated. The reasoning behind his judgement is not quite clear, but the biggest concern was almost certainly that the tortfeasor should not have to pay less for causing more harm. This reflects the intuitive view that the damages should be proportionate to the harm done, and so the wrongdoing. Given that the victim could not actually benefit from the increased damages, the rationale looks suspiciously penal, ensuring that the tortfeasor is punished in line with his wrong.

A similar dilemma should in theory present itself when it comes to torts causing death. After all, surely there is even less chance of a cure? However, the Fatal Accident Act 1976 attempts to smoothe over the proposterous conclusion that there should be no damages for death by providing actions which can be used by dependents left behind. They are allowed to recover what the victim would have been able to collect had he lived, as well as a fixed sum for bereavement, and compensation for funeral charges. Of course, this means that if someone dies without dependents, then the tortfeasor is not liable. Only the rarety of this situation prevents this unsightly fact from having more influence.

For dependants, this solution is extremely helpful and often very necessary. However, it is slightly odd that they get the entirety of the compensation the victim would have received, because on the cost of cure approach this must rest on the fiction that had he lived, all of the damages would have been spent on them. It would seem that a healthy discount for the costs of living the victim himself would have had to expend during his lifetime would seem to make sense, if we were trying to put the family members in the position they would have been in without the death. Again, the fact that this has not been suggested (and it's not a problem of quantifying the discount, as will be shown below) suggests that really, the legislature is keen to ensure that tortfeasors don't have to pay any less because of causing death - a penal concern.

A closely related area is the 'lost years' problem - how to deal with compensating for loss of earnings where the number of years the person would be able to work has been cut short because their death will now be premature? On objective loss principles, it would be thought that they should still be paid exactly as much as if they hadn't lost years off their life. However on the cost of cure view, they only need as much as to keep them in the same lifestyle for those years they will in fact survive. Giving them more would be overcompensating. Happily, the objective loss model is once again generally applied - Picket v British Rail. Here, however, the logic appears to be to compensate for the loss of dependants in the lost years. This is shown in a couple of ways. Firstly, here a deduction *is* made for the amount during the lost years which the victim would have spent on himself. Secondly, Croke v Wiseman showed that if one was harmed so as to ensure that they never have dependants, then they cannot claim for the lost years. Given the objective approach in West and the FAA 1976, this is really surprising, and an example of more harm leading to fewer damages under the cost of cure rationale.

What is the heart of the difference between the objective loss and cost of cure approaches? It is the party on which the focus is laid. Objective loss looks at the actual harm done so as to determine the level of wrongdoing, and charges the tortfeasor accordingly. Cost of cure instead looks at what the victim should actually get, in terms of what will do the most justice for him - curing without providing over-compensation (lovingly referred to as a 'windfall' among lawyers). This dichotomy between claimant-centred compensation and defendant-centred compensation exposes the heart of the contradiction of tort law. For when we focus on the claimant, we ignore the very agent whose actions bring the scenario into the region of wrongs. If we are using the tort as the gatekeeper to decide whether to allow compensation, why should its seriousness not determine the level of compensation? On the defendant's side, this looks unjust. However when we take the objective approach the claimant can on his side appear overcompensated, with nothing useful to do with the money received. The tension between the two sides can only be solved by separating the amount taken from the one party from the amoutn received by the other. That is the theme I will be taking up when I come to draw my conclusions from this series.

Tort's Wrongs, Part 1: Loss of a Chance

2007-04-06T05:44:00.000+01:00

Tort embodies the odd distinction of being one of the branches of law least recognisable by name, while actually being one of the top contributors to stereotypes of lawyers and the law. It is the law of civil wrongs, encompassing most cases of people suing each other for wrongdoing (as opposed to breach of obligations under contract). The ideas of 'ambulance chasing' and 'no win no fee' arise from tort law.

The basic idea behind tort law is to restore people who have been wronged against to their previous position (or as far as money will go to that end) at the expense of the one who wronged them. Judges insist that, with very few minor exceptions, tort law does not have a penal function; it is compensatory, while penalty is left to the criminal law. This should immediately strike one as somewhat odd. The fact that the compensation comes from the tortfeasor (the one who commits the tort) rather than anyone else must be punishment as it is a negative consequence inflicted due to the wrongdoing. I will try to show that the attempt to avoid penalising tortfeasors inevitably leads to a tort law which appears and is unjust and contradictory.

I will use three major examples of injustice before coming to my main point and drawing them together. My first will be liability for loss of a chance.

To establish liability in tort the facts upon which it rests must be shown to be true 'on the balance of probabilities,' which means more than 50% likely to be true. This can be contrasted with the standard of proof in the criminal law of 'beyond reasonable doubt,' which might mean something like 95% or 99% likely to be true. To receive compensation for my negligence, you will have to show on the balance of probabilities things like it being foreseeable to me that my actions might hurt someone like you and (at issue here) that my actions did, as a matter of fact, cause your harm.

This becomes very tricky in a number of cases. The first is where medical negligence damaging someone's chances to avoid a harm (loss of a chance) like in Hotson v East Berkshire, but only reducing those chances by less than 50%. Because then the chance that they caused the harm will be less that 50%, there is no liability. None at all. If they are 45% likely to have been the cause they will have to pay nothing, while if they are 55% likely to have been the cause they will have to pay the whole amount for it.

Another situation is cases where multiple factors may have caused the harm like in Fairchild v Glenhaven. Where each causes a bit of the harm this is no problem, but where only one of them did, the probabilities become tricky. A classic scenario will involve multiple employers negligently exposing an employee to asbestos, leading to him contracting mesothelioma. Causally, only one will have been responsibly for the harm, but each individual may be only be 30% or 40% likely to be responsible. Following the orthodox approach, none should have to pay anything. However, in this case the Law Lords responded to the patent injustice by creating an exception to the rule: If you add up all the tortious causes and they come to over 50%, then the tortfeasors together are liable for the whole amount, in proportion to the likelihood of each being responsible. This may look fair, but in Wilsher v Essex there was a new twist to the tale. Here multiple tortfeasors were not liable, and the best explanation appears to be that it is because the harm was not all caused by the same 'agent' i.e. asbestos fibres! This is almost universally recognised as patently absurd.

What becomes clear from these cases is a devotion to all or nothing liability. It may appear extremely odd that no-one has suggested apportioning liability in accordance with the percentage chance of having caused the harm. In the Hotson case, why not make the doctors liable in proportion to the chance of them having caused the harm? If someone is 45% likely to have caused harm, charge them 45% of the loss, and if 55% likely, charge them 55%. In the Fairchild and Wilsher cases, make each tortfeasor responsible for their share of the chance of harm they caused, rather than arbitrarily splitting between cases where full compensation will be awarded and where none will be. This instinctively appears the most just solution. So why is it not adopted?

The best answer appears to be because this would no longer be compensating based on actual causal responsibility for the harm. It will be penalising for wrongdoing (contributing to a risk of harm) and then using the proceeds to compensate the victims of this. This is truly penal in that it is sensitive to the degree of responsibility and sees causing risk as wrong, even if the risk did not in actual fact come about. It is recognising that people should not get away with such actions simply because of statistics in their favour.

A classic thought experiment is put forward to explain the results of the current approach (minus the Fairchild exception). It imagines a nuclear facility which negligently increases the risk of leukemia among nearby children, increasing the number of cases of leukemia so that 40% of cases are due to its negligence, and for any particular ill child there is a 40% chance that their leukemia is due to the negligence. On orthodox, Hotson principles, the facility is not liable for a thing. If on the other hand the percentage was 60%, it would be liable for the entire damages of every child with leukemia in the area. To me, the just thing to do would be to penalise it for causing the risk, forcing it to pay to each child with leukemia the percentage of its losses, 40% or 60%, in proportion to the chance of its responsibility. But tort law as it is just can not cope with this.

If it were to be remedied as I suggest, the system would appear much more just and would, for me, actually be more just. To the non-legal observer, it may seem incredible that this is avoided for the sake of keeping tort law 'non-penal.' However once you accept that the causal link is not sacrosanct, you start to unravel the foundations of the discipline. I will continue to explain why this is in my next post.

Torture: Ethics v Law

2007-02-16T21:11:00.000Z

In the previous post I explained my broad theory of the moral limits of the law. It can be summarised in this way: The moral limits of the law should not depend on the subject-matter in question, but on the peculiar nature of the law which is to enforce it. I put forward the principles of effectiveness (balancing the goals of the law to come up with an effective system) and certainty (coming up with a reasonably clear set of rules so as to allow conduct to be guided and prevent judges from having too much control over matters best left to the individual conscience) in determining how law should enforce morality. I also explained that freedom of speech meant that offence (including disgust and outrage), although a (mild) moral harm, should be discounted by the law - policing it would infringe too deeply on freedom of speech.

I will now turn my analysis on a very different, and substantially more controversial topic - torture. I will argue that it some rare cases, torture can be morally justifiable from the individual point of view, but that the law must draw one of its clear lines to say that it never accepts it as justifiable. There is a parallel with the popular hypothetical case of stealing to feed one's family. In both cases the fact that the action was justifiable in the individual case suggests that punishment is harsh. Nevertheless the alternative is handing to courts a decision which they should not have the power to make.

The suggestion that torture can rarely be justified comes from the much-vaunted ticking bomb scenario. In this situation a bomb will soon kill hundreds of innocents if a terrorist is not tortured to reveal its location. As a hypothetical it is simplistic and it is often meant to use such a rare instance to justify a whole edifice of torture through a wedge strategy. Nevertheless, the scenario might have something to it.

The problems of the scenario are large and obvious. How are we to know that the person we have is the real terrorist? Will torture actually effectively get us the bomb's location? However, hidden in the centre of all this is the fact that from the interrogator's point of view, it might well seem both possible that torture will work, and certain that the person in question is the perpetrator. Now, I am firmly against abusing basic rights of innocents (ie. torturing or killing them) for the 'greater good'. However the situation is much less clear with the non-innocent. We are willing to allow killing in self-defence or defence of others if necessary. Why not allow torture on the same footing? As long as constrained strictly to those who are actively trying to kill others (or similar) and to where necessary to prevent such evil, it would seem morally difficult to allow one but not the other.

If the leap is difficult to stomach, imagine this. A man has a bomb strapped to him in a crowded place. The timer ticks down with each of his heartbeats. The only way to stop the detonation is to shoot him dead, stopping the countdown. On a simple preservation of others principle, this can be justified. Now imagine that the man has the same set up but the man and bomb are separate, remotely linked. The man is in custody when you discover that his heartbeat will still detonate the bomb. The only way to stop it is to kill him. It would seem that since the only real thing that has changed is proximity, it must still be okay to kill him. Which brings us to the ticking bomb scenario. Once again, the only way to diffuse the bomb is to violate one of the man's basic rights. Unless we are willing to argue that torture is so absolutely awful that it cannot be allowed even where killing can (an argument I am loathe to accept here), we must accept that torture could here be morally justified on the same principle as killing the prisoner in custody.

Hopefully now it will be clear why an interrogator might legitimately feel morally justified in torturing, at least in a rare number of cases where they are certain of the person's guilt. So what should the law's response to this be? Firstly, consider efficiency - that the law must balance its legitimate aims. Whatever the rare good that can be done by torture, many aims point against the use of torture: Upholding the reputability of the law and keeping society generally opposed to the concept of torture; ensuring as little as possible harm is done to innocents (where torture is allowed, more innocents will end up tortured); and avoiding fruitless punishment (often torture will fail to yield anything, merely adding more harm to the equation). There is a very real danger that once torture is introduced for extreme cases it will become increasingly normalised, on a slippery slope towards routine use to make suspects confess rather than to save lives.

Secondly, remember certainty - the value of ending up with clear cut rules which it is safe to give to judges to adjudicate. It is true that clear cut rules could be set down, only authorising torture when people's lives or bodies could be saved by it, and where there is overwhelming certainty of guilt. It could even be required to be no more than necessary and appropriate to the situation, although that would be difficult to define. The first big problem with such a situation is that it allows the interrogators or police to act as judges or juries. It will require them to judge on those issues, and give a legitimacy to their decisions. Even if there are special investigators appointed to make decisions, the pressure from police will impinge on any standard of unbiased decision making. An emergency judgement from a proper court might improve this, but the constrained time will still have corrosive effects. Judges will inevitably be tempted to find for the interrogators for fear that unlike torture, killing is irreversible. The evidence may not justify such a finding, but it becomes more and more likely.

But what about the easy cases? The case where the perpetrator is gloating about what is going to happen? Firstly, if such actions were likely to lead to torture, such people would simply stop gloating and instead post anonymously or give tip-offs to police without any documentation of the fact. It would become more difficult to find anyone guilty under such a standard. Secondly, however, the situation has become so amazingly hypothetical as to become almost irrelevant as a legal standard. Someone would have to willingly admit that they were party to actions likely to cause death or serious injury to authorities they knew would be likely to torture them for it. There would have to be time to take them before a judge where they would have to again admit to such knowledge. Only then could torture take place. It seems unlikely that such an event would ever take place, and if it did the culprit seems more likely to be a psychotic masochist keen to be tortured than someone with any actual information. For this case, should the law be willing to risk all the other aims above, especially the risk of the spread of torture to less worthy areas? It would seem implausible.

What is generally advocated is more akin to torturing those reasonably suspected of being terrorists until either they confess or seem unlikely to have anything to know. The harm caused by the law permitting anything near this level suggests that it is unthinkable, and this is not affected by the fact that in certain mostly hypothetical cases, it might be morally acceptable.

Law and the Harm Principle

2007-01-24T00:49:00.000Z

One of the biggest issues straddling the areas of ethics, law and politics is how far ethics should be implemented as law. Of course not all law attempts to implement pre-existing moral duties. Often the law itself can help inform people of considerations which will alter their moral duties (as with some health and safety laws) and at other times it has a crucial regulatory function, imposing a uniform standard which is no better than another for the reason that there needs to be some standard (the classic example is a law requiring all to drive on one side of the road). However the bulk of law is meant to enforce pre-existing morality, so it is crucial to know how far this should go - in other words, what are the moral limits of the law.

For liberals, the traditional standard is the harm principle. The Wolfenden Report which eventually led to the legalisation of homosexuality in the UK suggested a private sphere of morality into which the state should not intrude. But modern liberals see this in a different light. Homosexuality should be legal not so much because it is private, but because it is not immoral. The harm principle decides what is in fact immoral, not which immoralities should be criminal. Nevertheless there clearly are some immoralities we believe should remain legal, like adultery. The principle behind this needs further exploration.

However at the same time, the harm principle as applied to ethics does lead to difficult questions. The distinction between acts only harming oneself and acts harming others is tenuous. Although drug use, masturbation, contraception and homosexuality are examples of private acts with no direct impact on those who do not consent, all if discovered can cause offense and distress to others, particularly loved ones who disapprove. Even those with no connection to the individuals in question can feel anger and outraged at the presense of the phenomenon in their society. Liberals would have no problem that such moral outrage should not count as actionable harm - that such mere offence should be discounted from the harm principle. The problem is justifying this.

The best definition of harm appears to be detriment of any kind, and this would seem clearly to include offense, outrage and distress. An immediate reaction may be to draw a line between physical harms and mental harms. However this is a worrying distinction. On the mental side of the line would also be fear due to intimidation as well as any number of mental illnesses. It would be unjust to say that causing such ailments does not violate the harm principle. The distinction is also unjustified. Mental harms can cause as much, if not more, misery than physical and are by no means necessarily easier to 'get over' - such an idea is discredited by modern understanding. So how do we explain why offense should not be treated as harm?

I think that the answers to this problem and the problem of translating morality into legisaltion are intertwined, and must be understood together. The crucial answer to the offense problem is to realise that offense and related ailments are indeed harms to be factored into our moral considerations. For this reason, it can be morally wrong to swear in front of those who it will offend, or insult someone for no reason. Crucially however, harms must always be balanced against the benefits of action. If we reasonably minimise the chances of people getting offended by our private actions and the benefits justify what small risk there is left, it can still be morally permissible to do those acts. While homosexuality may disgust some and offend others, engaging in homosexual activity can still be justified by the following factors among others: The negative effects of repressing orientation in terms of emotional health and fulfilment, the happiness brought to oneself and ones partner(s) by engaging in it and the benefit to society of encouraging more openness and acceptance. Offence in cases like this is taken into account but outweighed by the positives. It is further submitted that our right to self-determination is also a good which should be weighed against restrictions. As long as mere offence is considered a low-level factor to be taken into account (as opposed to more weighty concerns like physical harms and more profound mental harms) there is not a problem.

In the case of criticising the beliefs of others, this calculation must include considerations of the public good of free debate. It may be wrong to simply mock and ridicule another's beliefs just to upset them. However reasonable criticism is vital to our society, and the good of allowing ideas to be questioned can easily outweigh temporary offence at the criticism. Whether criticism is morally justified must very much be considered on a case-by-case basis.

This sounds dangerous when it comes to the application of law, however. If we were to leave it to judges to determine what is and what is not reasonable criticism, free speech would be left to the personal opinions of individuals with their own agenda and their own criteria. It is a question much better left to the individual conscience to determine. This is because the nature of law requires that we filter morality in certain ways before imposing it on the public. This is the crucial insight which should make us read the Wolfenden Report in a different light. It is not that law should be different from morality due to some problem with coercing others to behave morally (the harm principle deals with this at the stage of determining what is moral), nor due to some distinction between private and public morality. Rather, the very nature of law requires that morality be filtered in certain ways before application. A couple of the key principles of that filtering will now be set out.

Effectiveness - Where law attempts to uphold morality, it is useless if it has no effect and counter-productive where it actually encourages the wrong or wrongs it seeks to prevent. Laws making thought crimes fail not just because such laws may be wrongheaded in their subject matter, but also because they are impossible to police and so encourage disrespect for the law as a whole. Moreover a society which criminalises drugs may find that this drives them underground, causing vast harm in other ways. Effectiveness should be considered in terms of the legal order as a whole: Where a law is effective against one wrong but actually increases another, it must be considered whether the tradeoff is worthwhile. Where it isn't the law should be removed, even though the act in question might still be wrong.

Certainty - Certainty is crucial to any system attempting to guide behaviour. People must be able to stay clear of prohibited actions. At the same time liberty must not be restricted more than necessary. The result is a need for clear, somewhat simplistic guidelines. Unfortunately, morality does not provide us with such guidelines. Ethics tirelessly requires us to assess the individual situation and weigh up competing factors, which gives it an unavoidably personal element. Giving such a decision to the courts to decide increases the uncertainty of those who are considering how to act. Different judges may weigh factors differently and come to different moral decisions on the same set of facts. Legal certainty therefore dictates that morality be simplified down to a reasonable number of bare rules. The question of whether killing is wrong or not in a certain situation can be difficult, but the law makes it simpler - killing a person is always wrong, with a few clear exceptions. The reason why we might all agree that stealing food to survive might be morally permissible but should remain illegal is that otherwise the court would have to examine the socio-economic circumstances leading to the theft, whether there was any other way to get food, whether the person from whom it was stolen had more need of it etc. Courts are simply not best placed to make such assessments - they must remain for the individual conscience to determine. What the courts and the legislature do is balance fairness with simplicity to come up with rules to be applied depite the fact that they may lead to unfortunate consequences in individual cases.

So these principles of effectiveness and certainty must be used to determine in what way and to what extent the law should enforce morality. Now, as mentioned above, free speech and debate is crucial for a healthy democratic society to function. The principle of effectiveness therefore indicates that there should be extremely strong reasons wherever they are to be curtailed. Certainly when it comes to useful debate, offence and outrage are not sufficiently strong reasons, especially as they constitute an ordinary and expected part of reasonable discourse. However then the principle of certainty comes in. It cannot be for judges to simply decide for themselves whether a certain type of speech serves a sufficiently useful role to justify offence. Therefore, offence has to be removed from consideration as a harm from the law's point of view. Even when from an individual point of view, it would be wrong to offend someone, a judge must not be allowed to determine this because to do so would allow free speech to be subject to the will of the court. Much better is the judgement of the people as a whole who can accept or reject any ideas contained within the discourse.

People can have horrendous views. Sometimes, hearing them, it is difficult to imagine how they can morally justify to themselves promulgating such views. However what I submit is that we must never think that it is for the courts to put an end to such views. They must be judged by public opinion, a public open to hearing and determining any issue.

Self-Corruption and Legal Obligation

2006-12-24T20:23:00.000Z

In my previous post I discussed self-corruption and how it should influence our view of morality and the harm principle. Here, to begin my reflections on the relationship between law and morality, I shall explain why self-corruption grounds a prima facie moral obligation to obey the law. The following was submitted to Oxford's Law Society for an essay competition and it is therefore in a slightly different format from my normal posts, and repeats much of the groundwork for the concept of self-corruption as laid out in the previous post.

Self-Corruption and the Moral Obligation to Obey the Law

Introduction

The question of a moral obligation to obey the law, straddling as it does the fence between legal and moral philosophy, must appear one of the more imminent and relevant aspects of jurisprudence to the legal outsider. Most of us will have encountered a situation where we could break a law of some kind without any apparent chance of punishment or harm arising. Is there a moral dimension which arises here, encouraging us to act in accordance with the law despite it seeming to serve no coherent moral aim? I will argue that there is. Specifically, that in a reasonably just society, there will always be a prima facie obligation to obey the law.

Nobody would defend the position that there is an absolute duty to obey the law, at least not since the morally horrific yet legally binding norms of the Nazi German state. Instead, I would argue for a prima facie duty: A duty-creating reason which can be bolstered or displaced by other considerations. In this way there is a prima facie moral duty not to kill which may, in select situations like self-defence and possibly euthanasia, be displaced. The duty to obey the law will serve as scant defence to those who committed Nazi horrors, since there are clear and overwhelming reasons ensuring the overall moral balance is against obedience.

Raz’s argument against the prima facie obligation

Philosophers epitomised by Joseph Raz however argue emphatically that even such a prima facie obligation cannot exist. Raz argues that we would label as immoral anyone who refrained from murder because it was illegal, rather than for other reasons. Therefore any ‘prima facie obligation’ would there be dead (1). I submit that this is a confused way to consider moral obligations. Raz implicitly assumes that moral obligations can be added up in specific situations to give an overall moral weighting, rather like adding up the costs and benefits of a business transaction in purely economical terms. On this view, the obligation to obey the law does indeed not seem to add any weight to strong moral reasons against murder. However, we do not look at moral obligations in the way that he suggests.

Let us consider the moral obligation to uphold a promise made. Once again it would seem clear that this cannot be an absolute obligation (considering promises to do wrong). Nevertheless there are good moral reasons for upholding a promise which would need to be displaced in specific circumstances: Since society depends to an extent upon people being able to rely on the word of others, every broken promise damages the society in which it takes place. As long as that society is worth preserving (a reasonably just society) this will underpin a prima facie duty to uphold promises. Now, imagine that after some terrible slight I am moved to kill an enemy, but promise a good friend of mine that I will not. Still, I go ahead and do the deed. Clearly from an objective point of view the promise can be excluded from consideration of my moral wrong. It has been swallowed up in the heinous act of murder. Nevertheless, I would argue that the obligation to obey my promise still existed, running concurrently with the obligation not to murder and merely eclipsed by it. Certainly, it would seem absurd to argue that because in this case other considerations make the promise practically morally irrelevant, there is not a prima facie obligation to obey promises. Exactly the same is true with the obligation to obey the law. It is eclipsed by more pressing moral matters, certainly, but it still exists, Raz’s assertion notwithstanding.

The bad example argument

Despite the failure of this argument, it is still for me to make my case in favour of the duty. I must express gratitude to Raz and Smith here in aptly dismissing a number of unsatisfactory positions (2). I will focus on the sole ground for a duty which I do not believe they succeeded in demolishing: The ‘bad example’ argument which is helpfully summarised by Raz (3).

It states that in a reasonably just society, there will be many laws with which it is better to comply simply because they are laws. Raz accepts this in the cases of the government having better expertise over regulations than (most) individuals and the government co-ordinating collective action which would fail without the government’s intervention. Therefore, the argument goes, there is a prima facie obligation to obey all laws, even those not falling under these categories, since to do otherwise would set an example of contempt for the law, discouraging others from obeying the law even in worthwhile cases. This will be damaging for a society which, as reasonably just, we wish to preserve.

Raz respects the argument but says that it is insufficient to ground a general duty as it requires the possibility and likelihood of setting a bad example in every single case. He gives the counter-examples of horrific murders, which will actually strengthen feeling in favour of obedience, and running red lights when there is no-one about, which provides no example at all. It is submitted that he has missed some crucial points. Regarding the murder situation, one cannot know in advance what effect a crime will have on other people’s opinions of crime. It may encourage or discourage them from it. Nevertheless, the balance is always in favour of encouraging, because instances cumulatively bring an act closer to general acceptance. Also, the shaking up of people’s perceptions of the act always carries a risk of desensitising them to it. Far more difficult to answer is the traffic lights situation. The central argument of this essay is an attempt to answer it.

Self-corruption

Imagine that I am a forgetful person who must remind myself to do things by a system of notes. One night I promise my friend to buy him something the next day and write a note to that effect. However just before bed the friend annoys me. In anger I throw away the note, aware that this will ensure that I forget my promise. Imagine further that I well know that I tend to forgive (or forget!) wrongs in my sleep so that had I seen the note the next day, I would almost certainly have obeyed its contents. My acts the next day in failing to uphold the promise are not wrong. Who can blame me for failing to remember something when it is outside of my control? Indeed, I would be blameless if some rogue, and not I, had dispensed with my note. The wrong was done last night. In effect I manipulated events so that I did harm (breaking the promise) the next day. Although I did not breach the harm principle in the immediate timeframe, I did so in an inchoate way: I pushed myself to cause harm in the future.

Why the slightly far-fetched example? I am trying to show that setting myself up to cause harm in the future is in itself a wrong. This seems relatively clear in this memory case. Now consider a new scenario. Imagine that I am fed up with people being mean to me. In order to gain some respect, I train myself to respond automatically to taunts and teasing with disproportionate physical violence. As a result I later cause terrible injuries to people who fall foul of my training. I would imagine it relatively uncontroversial to hold that, as in the memory example, I was doing something wrong in training myself thus. Even before I actually harmed anyone, I was influencing myself so as to cause harm at a later date, and this must be wrong.

In essence, I am arguing that whatever formulation of the harm principle people go by, this kind of inchoate harm must be included. Just as I do wrong in persuading my friend to harm another, I do wrong if I ‘persuade’ myself to do so. I will call this ‘self-corruption’. Both of the examples so far involved deliberate choices to cause harm in the future, but the principle seems to logically extend to where causing harm in the future is a logically foreseeable consequence or risk of my actions now. Of course, such actions may still be justifiable by other means: A soldier at war may develop a violent character but this might be justified by the circumstances of war. This makes avoiding self-corruption which makes harm more likely a prima facie duty which would need to be displaced in individual cases.

Self-corruption and the bad example argument

Now recall the traffic light example that I considered earlier. In running red lights when no other vehicles or pedestrians are around we might well not risk any real harm nor set any bad example to others. However surely we are setting a bad example to ourselves. Every time we break the law we lessen our respect for its normative force, and make it more likely that we will break the law again. There is a close parallel with promises here. It may well be possible to break a promise and get away with it without anyone ever knowing or getting harmed. However, in doing so we reduce our respect for promises as a whole, making it more likely that we will breach promises in the future. In both cases it seems quite reasonable to assume that our diminished respect for the concept (law or promise) makes it more likely for us to breach it again, even where it is uncontroversially wrong to do so.

There are two levels to this. The first is that once we break a law or promise without anyone else knowing or being affected, we are more likely to do so again in ways which do harm people due to the promise or law having existed (as well as Raz’s situations when law itself creates moral duties, people also rely on both law and promises in ways which can make it wrong to violate them). This is a direct step from harmless breach to harmful breach. On the indirect level however, once we break a law or promise without anyone else knowing or being affected, we are more likely to do so again in ways which set bad examples to people around us. They are then more likely to break laws and promises in ways which harm people due to the promise or law having existed. On both direct and indirect levels, disobedience of even trivial laws risks leading to harm.

It is submitted that this must therefore be prima facie wrong, as it is an example of self-corruption. Remember that self-corruption is influencing oneself so as to cause or risk causing harm in the future. Breaching promises or trivial laws risks us causing harm both ourselves and through the medium of other people through bad example. Therefore there is a prima facie obligation not to breach laws and promises. Of course as earlier conceded, this can be displaced where there is a good reason for the breach. Nevertheless the obligation always exists.

Conclusion

My conclusion that there exists a prima facie obligation to obey the law in reasonably just societies rests on just two new foundations. One is empirical: Breaching the law without causing harm or setting a bad example for others makes it more likely that we will breach the law where it has created a moral obligation and / or where it sets a bad example for others. The other is moral: It is prima facie wrong to influence ourselves so as to make us more likely to cause harm in the future. If these two stand, as I believe they do, then an obligation exists after all. In fact given the level of truth Raz has conceded to the classical formation of the bad example argument, it would seem difficult for him to deny my extension of the argument through self-corruption.

Notes:

1. ‘The Obligation to Obey the Law’, Chapter 12 in Raz, J. (1983) The Authority of Law. Oxford University Press.
2. See especially Smith, M.B.E. (1973) “Is There a Prima Facie Obligation to Obey the Law?” Yale Law Journal 82:5. p. 950.
3. ‘The Obligation to Obey the Law’, Chapter 12 in Raz, J. (1983) The Authority of Law. Oxford University Press.

Self-Corruption

2006-12-19T21:52:00.000Z

In my opinion, the harm principle is often construed far too narrowly to adequately encompass the whole range of moral wrongs. I submit that the biggest common omission is self-corruption, and that this should cause us to somewhat re-evaluate liberal moral theory. Self-corruption, put simply, is acting so as to make oneself more likely to do harm in the future. Accepting that this is wrong can lead to potentially quite radical conclusions.

It is almost unnecessary to point out that there is widespread consensus that encouraging another to do wrong is itself wrong. Various incitement laws express our deep-seated belief that encouraging a crime is, morally speaking, committing the act itself only through an agent. Indeed, even if the event never occurs I am doing wrong in increasing the probability of harm. This need not be constrained to clear encouragement. By lying about a person to another I may encourage the latter to get angry and hurt the former without ever so much as mentioning the idea. From an ethical point of view and as long as there is the necessary guilty mindset, clearly this action is also wrong.

What I want to suggest is that there is no reason to constrain this to interactions with others. Our choices today can foreseeably alter our future actions and cause us to do real harm at a later date. Although our initial actions do not directly cause harm they increase the risk of it and, unless this can be justified (by weighing it against other factors), this must also be wrong.

But what do I mean by choices altering our future actions? An easy example would be a forgetful person choosing to throw away a note written to himself so that he will not remember to fulfil a promise. Failing to remember something does not look like a moral wrong, but acting earlier so as to cause this does. We can alter our future actions in a way which is wrongful right now.

However the central case of self-corruption is acting so as to change our character in some way. If doing so makes us more likely to cause harm in the future, then these early actions are themselves violations of the harm principle (even if harm does not in the end arise) unless they can be justified - they are prima facie wrong. To see what this means, I will first consider the example of promises.

It is sometimes suggested that unless there is a special meta-physical property to promises (in a 'thou shalt not lie' kind of way), there can be nothing wrong with violating them unless doing so also causes harm. While one might say that any breach of trust damages the sanctity of promises as a whole and so potentially society at large, this would only appear to be true where others might find out about the breach. Therefore a promise to a dying relative may often later be broken without appearing to damage anyone's trust in promises.

However self-corruption suggests a different conclusion. Every time we break a promise, we would appear to damage our own view of the inviolability of promises. Each time we break a promise, we make it more likely that we will do so again in the future, even when in these cases to do so would certainly cause harm and disappointment. We to some extent self-corrupt ourselves, altering our character in a negative way.

At this point I should point out that I am not arguing that upholding our promises is an absolute duty. Other considerations can well justify us not doing so, perhaps even making it immoral to do so. If I promise a dying relative to marry someone I do not wish to, it is probably most sensible to break this promise as to uphold it could cause unnecessary misery and harm. It may nevertheless still have been morally permissible to make the promise as a way of putting the dying relative's mind to rest. Moreover the situation may change after a promise so as to make performance gravely immoral. All I argue is that in all cases, self-corruption must be figured into considerations. Where there are no sufficiently weighty countervailing considerations, there is a duty not to self-corrupt. In fact, as long as self-corruption is constrained to cases where there are powerful reasons for it, the self-corruption will be less potent - less likely to cause us to act wrongfully when these reasons do not apply.

None of this, however, looks in the slightest bit radical. If it helps us see that there is always a prima facie obligation to uphold our promises then this does not seem to upset liberal moral theory. However what might do so is its implications for moral 'thought crimes'. Orthodox harm principle theory suggests that mere mental activity cannot generally be wrong. Only where it actually prepares for physical behaviour leading to harm does it violate the principle. I suggest this is misguided.

If thinking in a certain way or subjecting ourselves to certain stimuli changes our character so as to make us more likely to harm others then doing so is wrong. Imagine that I know that I become violent and am liable to hurt people after watching violent films. In this case it would seem that I am under a duty not to do so, at least not when I am likely to be around people afterwards. The situation is no different to drinking alcohol when I know that this makes me violent. In either case, it is wrong for me to risk other people's safety for no good reason.

What this means is that we should consider carefully the question of to what media we should expose ourselves. If violence really does make us more violent or pornography make us more likely to commit sexual offences, then unless there are suffiencient moral benefits to outweigh this, we should refrain from exposing ourselves to them. Now I am of the opinion that in most cases the benefits will outweigh this risk: Exposure to violenct media often allows us to vicariously release violent tendencies and exposure to pornography often allows us to similarly release potentially aggressive sexuality. However in certain cases, individuals may find that they respond negatively and take steps to avoid exposure.

As for the legal consequences of this argument, this is not a call for censorship. The result of the highly personalised account of the morality of violent and pornographic media set out above is that it must be judged on the individual level. However on the the moral level, my intention is to point out that we must be aware of the possibility that behaviour which looks purely private may well in fact mask violations of the harm principle through self-corruption. The idea of private activity should be carefully thought through before it is used as a general shield from criticism.

Racism and the Pro-Life Connection

2006-11-02T20:32:00.000Z

I recently read a pro-lifer suggest that the pro-life position would one day come to be seen as the anti-racism position now is. It got me thinking about the connection between the two, and I came to a very different conclusion. Obviously I understand his point - both extend protection to more human beings than previously. Nevertheless actually I think if we look a bit deeper, we will find that a pro-choice position (certainly one which does not demand equal rights from conception) is the true heir of the anti-racism movement. To be clear, in no way do I suggest or believe that pro-lifers tend to be racist. However, I think that the very success of anti-racism suggests that the pro-choice position is to be preferred.

The reason for this is that the most widely-held intellectual justification of racism was that people of certain skin colours or ethnic origins are inherently inferior in some way to people of the favoured skin colour (usually white). Slavery was justified by the idea that black people were not worthy of protection as they were not like the slave owners. Now, as we know, skin colour is a genetic varient. The suggestion was that we can determine who is worthy of protection by genetic facts. The repudiation of the racist viewpoint is therefore a rejection of the idea that looking to genetics is enough. They were found to be wanting as an adequate explanation for why people are worth protecting.

On a superficial level the shift was from protection for whites to protection for humans. However, humanity is equally a genetic fact, albeit more widespread. If the shift was merely from one genetic fact to another then there appears to be no real justification for it. Why should we prefer one genetic fact to another? Was there any principle to the shift? Of course there was. People recognised that protection was needed because of the ability to suffer and feel pain or to grow and flourish. This is common to all colours and unifies our conception of those worthy of moral consideration. In short, the success of anti-racism was the success of a consideration of the characteristics of beings as beings, rather than merely their genetic make-up.

The pro-life movement (narowly defined as those who desire protection from conception) denies this shift. It argues that what is important is the genetic fact of humanity and nothing else. Thus all those genetically human must be protected whether or not they have any capacity for consciousness, pain or pleasure. They eschew any consideration of beings as beings. While they would use the wider genetic fact of humanity as their criterion, they fail to move past its arbitrary nature and merely insist that it is intuitively true, just as white supremacy was once intuitively true for so many people.

The shift from a genetic criterion to a beings as beings criterion was one from arbitrariness to principle. It expanded the scope of protection in some ways, to those of different colours. However it also excluded those who only fulfilled the biological condition of humanity without any of the characteristics (faculties and consciousness) of beings worthy of protection. Those desperate to protect such zygotes rely on a purely genetic argument in a way which, if accepted, would damage the coherence of the anti-racism movement. In the end, the pro-choice lobby is the heir of anti-racism.

Non-Religious Pro-Life

2006-09-11T00:33:00.000+01:00

In this post, Jeremy who is guest blogging at Philosophy et cetera argues that the pro-life argument is not necessarily religious. I have said before that the sanctity of life view rests on a worrying religious contention (that our value is based on being God's property). But is there any other way this view can be upheld?

I will deal purely with the abortion question here, and take pro-life to mean someone who disagrees with the killing of an embryo from the point of conception (the usual, if not only, meaning). I will accept that there are theoretical ways to be pro-life which do not rest on God, but will assert that holding these views to any degree of consistency is either ridiculous, or in no way representative of any significant part of the pro-life community.

Note: It is difficult to distinguish religious from non-religious arguments. Jeremy suggests whether an argument is based on religious revelation or not, but I believe this is insufficient. If I make an argument based on the premise that during Holy Communion the bread and wine physically becomes the body and blood of Jesus (transubstantiation) then that is still a religious argument because the premise only makes sense with a religious underpinning. However, since everything eventually must lead to some unsupported underpinnings, I will say that a non-religious argument is one whose premises can eventually be tracked back to observations about the empirical world but not the existence of God. (This last requirement is necessary because an argument for God could itself be non-religious by relying on the world rather than revelation, like the argument from design. If this was used then one could collapse the religious / non-religious distinction.) An argument involving transubstantiation relies on faith in God, and so is religious. Any premises have to be tracked back to see if they could rely on the empirical world without belief in God. Only if so can they be non-religious.

Here, therefore, are the possible non-religious foundations for the pro-life view:

It is always wrong to kill

This argument would hold that killing anything with the criteria of life is wrong. If this was held then the problems with the pro-life view disappear. However, this is a radical view. Since it is not based on faculties, it requires upholding the right to life of a cabbage to the same extent as a human. Certainly, this would justify protection of a newly created embryo. But at the same time it would make life incredibly difficult to live. It would essentially require the Fruitarian lifestyle of only eating what dies naturally. I do not believe that any realistic portion of the pro-life community is represented by this view. Moreover, I do not believe that the belief in the sacredness of all life can survive without religious underpinning. The mere facts of being able to grow and reproduce appear to have no more importance ethically than the colour of one's skin. Only by having a God who gives special value to them can life in and of itself be ethically prejudiced.

If this cannot be a consistent non-religious ethical basis, then we must find some criteria which distinguishes the newly conceived foetus from a cabbage.

We must value things based on their potential

This is the only argument here that can be based on faculties. The only other change of ethical importance which happens to the embryo is that it will become able to survive on its own without constant help. If we take this latter as the important potential point, then this would exclude from the argument any child doomed to die in its first few years. This is because although after birth a child will not be bodily dependent on the mother in the same way, it will still be unable to live without constant care for many years. I am pretty sure that no pro-lifer would argue this way, so I will assume that the key to potentiality is faculties that will naturally develop.

Potentiality basically involves treating beings as they will naturally become. I say naturally because that seems to be the only way to treat it. Clearly it makes no sense to treat beings as they could possibly be, given the right conditions. This would require treating a sperm and egg as a person, because in the right circumstances they could be. The 'naturally becoming' test is the least bizarre potentiality requirement. However, this is clearly difficult to identify. Natural cannot mean 'without outside influence' because embryos require outside influence to grow into the beings we are considering. The only way in which it seems that embryos naturally grow into children and then adults is through pure probability, which seems a very odd way to identify their moral status!

The big problem however is that no-one takes any kind of potentiality truly seriously. It is a cliche to point out that no-one treats an acorn as an oak, but it is true. No-one treats a law student as a lawyer (or at least they are foolish if they do, believe me!). But let's move on to fully moral issues. It is possible to say that certain classes of people will probably and quite naturally become criminals and commit many crimes. Potentiality would presumably therefore have us treat them as criminals. But what if a very intelligent person is in that category, with the potentil either to become a criminal or a brilliant doctor. Are we obliged to ethically treat them as both - worthy of punishment and praise? This all seems ridiculous, but this is the reality of potentiality. It is not applied consistently by, I believe, any significant slice of the pro-life community.

Humans have souls

Jeremy asserts (in the comments) that souls are not necessarily a religious creation. However, I would take issue with this. There is no direct evidence for souls in the world, as I'm sure Jeremy would admit. We cannot see, hear or touch souls. The only arguments for them come from the incidents of those who supposedly have them. They rest on certain special qualities and abilities of those with souls, like the ability to think and reason. However, by basing evidence for the soul on faculties, we deny souls to those without those faculties, and this includes newly conceived embryos.

In order to include these, many say all humans and only humans have souls. However, by doing so they concede almost all of the arguments in favour of souls: Animals live and move but apparently they do not need souls to do so. Therefore the only evidence for souls must come from religion. Alternatively, if we argue that life itself is the incident of souls, and grant souls to all living beings, we are brought back to the first heading above. If destroying souls is wrong, then it must be wrong to kill any living thing. More than that however, there is absolutely no need for a soul in our understanding of, say, a cabbage. We understand how they work much better than complicated higher animals where there may, somewhere, be room for explanation by soul. The declaration that all life has a soul therefore can only rely as evidence upon religious belief.

There is of course an alternative like that suggested at the beginning of this section - the idea that there are different levels of soul according to faculties. However since an embryo has no more faculties than a skin cell, it cannot demand a soul on this arguement.

I have argued therefore, that there are three key ways to argue from a pro-life perspective without being explicitly religious: The wrong-to-kill argument, the potentiality argument and the souls argument. In all three cases, the arguments either require resort to religious backing or require massive changes to ethical systems in a way completely unrepresentative of any significant slice of the population as a whole, let alone pro-lifers. It is possible to consistently be pro-life for non-religious reasons, but I confidently believe that almost no-one is.

Divine Command

2006-09-06T19:34:00.000+01:00

I have now featured in the Philosopher's Carnival twice (here and here), and hope to continue submitting posts to it despite confining my knowledge of and real interest in philosophy to a few areas (ethics, law, politics, religion). I would greatly recommend having a look - although I tend to confine my interest to the ethics section, the submissions are generally quite thought provoking.

A good example is this post from Daylight Atheism. It says what I have always felt about morality based on divine command - that it is often dangerous, easily manipulated and irrational. It may be more difficult to base morality on rationality, but it is a far safer and more successful to do so. The following paragraph is crucial:

By accustoming people to unquestioning obedience, religion cripples their skills of moral reasoning, often resulting in a sort of induced "ethical dyslexia" where they are unable to recognize evil for what it is, even when it is staring them in the face. Just consider how many Christian apologists continue to defend the atrocities recorded and praised in their own Bibles.

This is very true. I have heard Christians defend the actions of Abraham, ordered by God to kill his own son, with horror. I think ethical dyslexia is a brilliant term for this kind of mindset.

However, I do have one big quibble with the post. It seems to implicitly suggest that all or most theists follow the divine command theory of ethics, while atheists do not. I think this is unfair. Many, many believers follow rationality and merely supplement it with religious ethics, or build rational systems out of religious ethics. Many will have trouble with the story of Abraham. On the other side, many atheists are seduced by theories like societal ethics, whereby what is right and wrong is determined by what is generally thought to be, a sort of command. If Daylight Atheist had made this clearer, I would happily agree with pretty much everything he says here.

Before and After the Person

2006-08-17T23:06:00.000+01:00

Now that I am finished with my posts about Peter Singer I feel ready to explain my position on some of the issues which came up in this debate. While I have explained my basic position on abortion in some detail, the issue of pregnant women causing birth defects divided pro-choicers. And even on the side which thought that it was wrong (including me), the further issue of harm caused after a victim's death is controversial. I will examine both questions here.

Birth Defects

The salient points about causing birth defects are these: Whether due to the intake of drugs or other acts, the actions occur and the harm is received well before birth. However, the effects are still felt some time after birth. The question is whether the acts can be said to be wrong, assuming that the harm principle holds, (as I do, although I interpret the principle widely).

Again I will have to distinguish myself from many pro-choicers who focus solely on the difference between persons and non-persons. This line is generally drawn after birth, and I would agree that that makes sense. However, as I have explained before, I think far more important is the nature and extent of the interests of any being, person or not. Late-term foetuses have interests which it is generally wrong to violate. However, the specific circumstances of a pregnancy and the effects on a woman's autonomy and dignity can justify the minimum necessary harm to the foetus while ending the pregnancy (as humane as possible abortion before viability, or induced birth afterwards).

However, when it comes to actions which will have a negative effect on this foetus, the situation is different. A woman's autonomy and dignity is sufficiently protected by allowing abortion. There is no similar argument preserving her moral right to take drugs which harm that foetus. Her autonomy is not affected in anything like the same way, this requirement being a prohibition and not a requirement. Indeed, in choosing to continue the pregnancy we can see her as having taken on even some, reasonable, positive obligations to the foetus, such as to stay reasonably healthy.

Moreover, I would say that this applies equally to actions done to early term foetuses with no interests at all, where the harm is actually felt later once interests have developed. I think even those who disagree that foetuses should have any rights should be in accord on this one. There is no question that taking thalidomide harms the person the foetus will become, in comparison to how their life would have been otherwise. It robs them of opportunities and abilities. However, the actual effects, when the damage is done, precede the development of any interests. Is taking thalidomide wrong?

The question can be taken out of the context of tricky interest / personhood issues. Can actions taken before the existence of a being with interests which later hurt that being be wrong? Ignoring abortion entirely, is it wrong to set a trap which will harm someone not yet conceived? I would say that it most certainly is. If someone does an action likely to harm someone, that is prima facie wrong regardless of when the victim is conceived or born. What matters in when the harm or effects are felt, not when the physical action took place. Just as the trap setter is wrong, so is someone who damages a pre-interest foetus such as to cause harm to the person it will be.

This may look odd considering that I see absolutely no moral problem with killing pre-interest foetuses. However, crucially there will never be any being with interests capable of receiving any harm. This is dramatically different from the situation in question. In my opinion, the conclusion that causing harm to beings not yet existing is wrong should be clear to both pro-choice and pro-life alike.

Harm After Death

Richard proposes that the fulfilment or otherwise of our desires at any time impacts our welfare. He argues that if someone's wishes are violated after they die, their welfare has been damaged. This is predicated on the view (which he expresses in the comments of the linked post) that "all moments exist equally, just like all places do." Thus, once there is a person there is a person, regardless of the time at which we are talking. That person exists even if not born yet. Thus the person's interests can be harmed at any time. It is this which leads him to agree with me on the birth defects question - the person is harmed regardless of temporal issues.

I however would say that timing is important - the time that the harm is received, rather than when the harmful act takes place. With the example of setting a trap as previously put, we do not harm the victim when we put down the trap - if we were to have a change of heart and remove it no harm would be done. The harm occurs when the trap strikes. (Nevertheless, the wrong is done when the trap is set with the requisite mental state. We can only redeem ourselves by removing it, not prevent the wrong from ever happening. Removing it would make it one of the class of wrongs without harm, as it was intended to make harm likely or did in fact make harm likely. This is why I interpret the harm principle widely.) With the burning of a dead man's precious library, there is no person to receive the harm (we are discounting upset relatives and heirs, for simplicity's sake).

The reason for my assertion is not that harms must be felt to be harms at all. I do not believe this. If we steal from someone and they never notice, they have been harmed. If we cause someone brain damage so that they can never realise that their mental abilities have been reduced, we have still harmed them. This is because one important type of harm is deprivation. I've explained before that this is the wrong of painless killing - depriving us of numerous abilities, faculties, interests and memories. Actual mental distress is not always necessary. Loss of something like options is enough, (even, I would argue, if they are options which would never be chosen). Harms which are unrealised may be less serious than those which are, but they are harms nevertheless. This is the only way to make sense of a large number of our intuitions. Imagine we lock someone in a room while they sleep, but they choose to remain there when they wake up without realising they can leave. Are they not harmed by the imprisonment at all, if they are removed again before they realise? Imagine that later they found out that they had been trapped. Would they feel that their interests had been violated, or merely that they had been at risk of violation? I say it must be the former.

So realisation and even ability to realise what has transpired is not necessary for harm. Nevertheless, I say that dead people cannot have interests which can be violated. They have no options to be taken away from them, no ability to experience which can be abused to cause suffering. Everything which marks a person as a moral object has disappeared. Nothing more can be done to violate their interests, as their interests have disappeared. They can receive no more harm. My great ancestor may have wished for a possession to stay in the family, but I need not take his concerns into account before I sell it.

I think the difference of opinion between me and Richard is not about all moments existing equally or not. It is that he thinks that it is generally good for our preferences to be upheld. I think that it is generally good for our preferences to be upheld because that allows us to make choices about our lives and increase our own happiness, options and abilities. Preference fulfilment is facilitative of all kind of other goods. Once someone is dead, however, it is facilitative of nothing as far as that person goes. I think that this accords with common sense and an interests-based view of ethics.

Acts and Omissions

2006-08-16T12:45:00.000+01:00

My final critique of Peter Singer (for now) will focus on one of his less publicised but more striking claims. This is that there is a moral obligation on everyone in affluent countries to give very generously to charities helping poor and sick people in less fortunate countries, up to the limit at which it seriously impinges on our own welfare. In essence, he demands that we give up luxuries and donate all money beyond that spent on essentials.

There is much to be said for the consequences were this view taken seriously. We really could have a profound effect on world poverty if we donated to anything like this extent. Without doubt, it would be profoundly moral to give charitably in this manner, but I take exception to the claim that it is a moral obligation.

Singer's conclusions derive from one central premise - if we can prevent suffering without sacrificing anything of comparable moral significance (1), we are obliged to do so. He suggests that having money cannot be comparible to having basic necessities to live without suffering. In fact, he suggests that for his conclusions to work all that is necessary is that we be obliged to prevent suffering where nothing of moral significance at all is sacrificed (2). The difference between these principles would seem to be exemplified by following example: A man whose foot is trapped in a railway switch can push it to divert a train away from a child who would otherwise die, but at the cost of his foot. Singer would presumably accept that the foot is of at least some moral significance. Therefore on the less harsh test (2) the man would have no duty to push the switch as it would sacrifice something of moral significance. However, on the harsher test (1) we would have to consider whether the foot is of comparible moral significance to the child's life. Since it probably is not, he would have a duty to make this sacrifice.

Before considering the bulk of the argument, I will first argue that position (2) cannot lead to Singer's conclusions, and that he will have to stick to position (1). After that I will argue that both positions are profoundly misguided.

The idea that we have a duty to prevent evil where nothing (morally) significant must be sacrificed seems appealing. After all, it would seem that such a sacrifice cannot be too onerous upon us. It seems strange therefore that such a supposedly soft requirement could lead us to give up all luxuries. The reason for this is that Singer has an odd idea of what is morally significant. He would need to argue that giving up potentially huge sums of money is not morally significant. But money widens our options and choices in a unique way. While giving a small amount may indeed be close to insignificant, as the amount goes up the deletarious effect it has on our life options increases dramatically. This is why it is seen as a sacrifice, just like giving up our foot. It seems especially odd for a preference utilitarian like Singer to ignore the importance to people of autonomy. Even beyond essentials, what he derides as mere luxuries are expressions of autonomy which is subjectively intensely valuable. As one of the key points of liberalism, one might expect Singer to recognise this. In fact, almost everyone agrees that theft of money does a moral wrong to the owner, so it would seem odd for there to be no moral sacrifice if such money was given away!

In fact, this goes further. Singer talks about passers by seeing drowning strangers and claims that nothing of moral significance is lost in requiring them to go in and rescue the strangers. But this is not so. Indeed, the cost of replacing damaged clothes may be minor (although depending on the person's means, it may not) but if the watcher is compelled to save the drowner, all of their other options are prohibited to them, a loss which again is at least morally significant. This is the reason that omissions are rarely crimes in most countries - to force positive actions is a massive infringement of autonomy.

It would seem that the idea of morally insignificant sacrifices is very weak, at the least. Any such sacrifice would have to involve no significant reduction in autonomy. At most this might extend to small amounts of money from those who have an over-abundance of which they will not miss small amounts. It will certainly not go anywhere near the levels necessary to end world poverty as Singer dreams.

The only way for Singer to maintain his thesis is by sticking to position (1), that we are obliged to prevent suffering where such sacrifice as is necessary is not comparable to the suffering prevented. This seems much more plausible in support of Singer's conclusions. One could use Maslow's hierarchy of needs as a starting point for working out moral comparibility. So in order to allieviate basic deficiencies like illnesses and early deaths, we should be prepared to make sacrifices up to the point where to go further would be to subject ourselves to such things. This seems to go even further than Singer asking us to give up luxuries, but at least it would certainly justify that stance. Losing the autonomy money can provide would almost certainly not compare with the suffering in parts of the world, as losing autonomy briefly in order to rescue a drowning man would not compare with his death. On this model, if people were to do the right thing then countries would eventually equalise in terms of the welfare of their peoples, and people would always have to prevent harm to others unless they were likely to incur similar or greater harm in doing so.

However, I will say that this view is nonsense, going against almost every ethical intuition we have. To start with, an example. Say I earn some money and buy myself two apples. One is enough to sate my hunger but if I eat the other one, I will be pleasantly satisfied. My friend however has not earned any money, and is also hungry. Am I morally obliged to give him one of the apples? Clearly the sacrifice of the satisfaction is not comparable to his hunger (remembering that my hunger will be sated either way). If I have a duty to give him an apple, then what about the next day? And the next? Do I have a duty to feed him each day, because I work but he does not? Let me stress that I do not believe the more needy are by any means usually in that position due to any lack of effort or fault. I just mean to show that the principle seems insecure even to start with. The further away from illness and famine we move, the more ridiculous it seems.

Do we really think that the stranger who passes a random man drowning has a moral obligation to save him as long as there is no peril? Some have argued for a legal obligation in this direction, like Andrew Ashworth. However, I say that this view is actually out of line with general moral considerations, because of its view of moral obligations. When we think of such obligations, we consider them as being in some way incurred, or inherent. Incurred obligations like contracts can be of all kinds of different nature. However, here we are dealing with inherent obligations, and these are usually reserved for obligations not to impinge on the interests and freedoms of others. Indeed, they appear more like prohibitions from the wrong rather than obligations at all.

Imagine that the drowning man is able to send a message to a whole town telling them of his plight. It would seem ridiculous to argue that there is any difference between anyone who hears the message and the original walker. So who is now obliged to help him? Everyone? Must they all rush to help him, despite the damage to the town's economy and widespread chaos of all their positions being left? Are all these people responsible for helping the man? I would imagine we would not think so. Those responsible for alleviating suffering are normally those responsible for it in the first place, so the obligation is on those who cause the suffering.

In order to determine causation, we look at the situation had the person's actions not occured (this happens in law all the time). We can only conceivably find them responsible if the situation would have been significantly different without them. And this is the logical standard to follow, not that everyone is responsible if they could do something. The primary way for someone to become positively morally obliged is if they are causally responsible for the state of affairs in some way. Now with the right state of mind, such causation might mean that their actions leading to the state of affairs were morally wrong. Even if not, I would say that there is a positive moral obligation to right those wrongs for which we are causally (if innocently) responsible.

If this were not true, then it would not make sense to demand that people compensate others for harm. If responsibility for cure rests with those who can best achieve it, then merely committing the harm would remain morally irrelevent. Instead, we rightly expect those responsible for harm to be made to pay compensation as far as reasonably possible.

What does this all mean? It means that I am not morally obliged to help a stranger I see drowning - although it would be morally good to do so, it would not be morally wrong to fail to do so. However, if I inadvertently tripped a stranger into water, I would then have a moral obligation to help, at least as long as I would not have to sacrifice anything of comparable moral significance (ie. my life and possibly my good health). As for the poor and sick, we do not owe as great a duty as Singer imagines.

I would not deny that we have some obligation in that direction, however. I would say that apart from this normal way of incurring obligations, we can also do so by profiting from wrongs and injustices. Since a lot of western wealth is based on injustice which has led to the poverty and illness is developing countries, there is still a degree of moral responsibility we should bear. However, I will save this idea for a later post, and conclude that Singer is far from justified in assuming that we are morally obliged to help wherever we can.

Update:

In the comments, Richard correctly points out that I have not made explicit my view on whether act / omission is a morally valid distinction. Mea culpa - I will quote the my view as I set it out in the comments: "In point of fact, I believe that the act / omission distinction is not morally important, although it is a good rule of thumb for a valid moral distinction: Whether one is causally responsible for a state of affairs. Thus an omission to correct something harmful I have (perhaps innocently) started is as bad as an act."

Life, Death, Abortion and Animals

2006-07-16T18:14:00.000+01:00

In this post I explained how the sanctity of life ethic behind the idea that human life and only human life is sacred from conception stems from the idea that ethics is about upholding God's property rights over all creation. I insisted that this was an abhorrent ethic, permitting people to be treated solely as property in a way rejected at the end of slavery.

However, that leaves us to develop a theory of ethics based on interests and centred around the idea that it is inherently wrong to violate these interests. Way back here I linked this with empathy, as empathy allows us to understand the importance of these interests and go about creating an ethic which does justice to them.

Creating this new ethic is a task which Peter Singer approaches with gusto, and I think he makes great strides. However, he is widely disliked and discredited for one very unpopular conclusion which he reaches. This is that it can be morally acceptable to kill some newborn babies. I will describe his reasoning and then attempt to explain why I think he goes wrong, building a more defensible ethic as I go along.

Singer's starting premise is that biological humanity is not in itself morally significant. I have said much independently to the same effect, so I will merely summarise the argument. On an interest-based approach, morally relevant faculties must have some relationship with these interests. So self-awareness, ability to feel pain etc can be morally relevant as they influence the interests that we have. However, there are no such faculties which tie to all and only biological humans. In the early stages, embryos have absolutely no interests, and while they gain more towards the end of pregnancy, they only gain certain crucial faculties after birth. Indeed, many animals have vastly superior faculties than newly born babies and some severely mentally disabled people.

Now, there is a lot of debate in ethics over what is necessary to meet the requirements to be a 'person,' and this is often treated as someone who must be treated ethically. It is usually drawn at the same place as to make 'persons' of those we can expect to be ethically responsible, and while I agree with this, there is no necessary reason why the line for moral agent and moral object should be the same. In any case, clearly going by faculties and interests we cannot draw the line so as to include all humans and exclude all animals. Hence the problem. Singer seems to embrace the same solution I favour: A graded scale of interests. Rather than personhood putting someone in or out of ethical consideration, we have to look at the level of perception and interests in order to decide how to treat someone. I hit upon a similar idea with appreciative empathy - treating others as we would like to be treated if we had their faculties and preferences. So Singer would agree without hesitation that it is wrong to torture animals, while there is no obligation to educate them - they do not have the faculties to appreciate the latter. Personhood can be seen as the top of the gradient, above which we can assume that 'people' have all the faculties we are used to, and so treat them as such.

The problem arises when it comes to killing (at least, where there is no pain involved). Singer considers the wrong of killing from a number of perspectives, and concludes that a right to life is far more persuasive when the being is self-aware or has a sense of existing over time. In this way its preferences can be thwarted. Preference utilitarianism therefore speaks in favour if it living. Clearly this does not apply to many animals, foetuses or (crucially) the new born. So what is wrong with killing these? Singer argues classical utilitarianism, so that to do so would overall decrease pleasure. This allows that if living a life is so unpleasant as to bring negative pleasure, then there is no obligation to maintain that life - the argument for euthanasia in a nutshell.

But Singer says that even where a non-person's life is worth living, it can still be okay to end it. In the case of new born babies, they are not yet people and so if unwanted, can justifiably be killed. However, for the most part this is not true as there are many people willing to adopt. For disabled babies, however, he worries that their lives will not be happy. Crucially, he argues that we can compare their happiness to that of babies who will be born if the disabled babies are killed, as replacements for them. It is here that I think he goes horribly wrong, and I think the reason is his commitment to utilitarianism.

Classical utilitarianism considers the total resulting pleasure from any choice in order to decide what is right. While maintaining that interests are the basis of morality, I still assert that this is overly simplistic and wrong-headed. To take a simplistic example, even if a gang rape will lead to greater pleasure for the perpetrators than pain for the victim, it is still wrong. The current case is another example. I think that while we can consider the total pleasure / pain of an individual (which will almost always still be positive), it is wrongheaded to simplistically compare it to that of others. Moreover, I think Singer is wrong to believe that we can even consider the interests of a being which may not be conceived.

Instead, I would argue that the better view is one where interests are violated wherever the capacity for them is lost. In killing any conscious being, we are robbing it of its faculties, and so violating its interests. This is more wrong the more developed these faculties are, but it is wrong (barring justifications) with any conscious being. This actually solves the old problem of what is wrong with killing a person in their sleep. It is not just that their preferences have been thwarted, but that their faculties have been destroyed. Their memories, plans, preferences and personality have been ended, and that is the great wrong of killing.

This actually allows a lot of other issues to slot into place. Abortion is still acceptable because even once the foetus has become conscious, its interests do not trump the dignity and autonomy of the mother, as explained here. It is wrong to kill the severely mentally disabled and new borns, because although not conscious, killing them would still rob them of those faculties they do have. At the same time, it is also wrong to kill animals because it robs them of their faculties, again unless there was a justification.

So once the baby is born and its interests are no longer competing with those of a pregnant woman, as long is its life is not so unpleasant that death would be a welcome release, and barring other justification, I do not think that we can allow it to be killed. We cannot compare it to babies who might be born otherwise, as they have no interests to lose. Although it is not yet a person by most people's standards, it still has interests which must be respected.

Abortion Debate

2006-07-16T15:27:00.000+01:00

I am in the middle of an interesting discussion about abortion which is taking place across two left-wing, pro-choice blogs I frequent. It started out with this post:

Sufficient Scruples - Keeping It Real

The author, KTK argued that there really is no rational way to argue the pro-life position and that the only issue is women's autonomy. I was unconvinced that it was that simple. The next post was this:

Lean Left - How Not To Debate Abortion

Tgirsch argued that KTK's post was unnecessarily dismissive of pro-lifers and defended them as often motivated by genuine ethical concerns. In the comments which followed, I used my own ethical logic to try to deal with points which came up like the difficulty of Peter Singer's approach to newborn babies (which I will deal with in my next post) and the question of mental disabilities taking one outside of personhood. Now, KTK has made a new post:

Sufficient Scruples - Obligations To The Foetus

Here, he deals with what I consider to be a very interesting problem - pregnant women behaving such as to cause birth defects. He asserts that since the foetus is not a person, these acts are not immoral. I completely disagree with him, and use the example of a trap set before the intended victim's birth which kills them later to show that what is important is when the effects are felt, rather than when the acts are done.

I invite anyone who reads this blog to join in, either on these blogs or the comments section here. To my mind, one important thing that this shows is that abortion ethics are much more complicated than simply 'yes' or 'no'.

Update:

Here are some more blog posts on both sides of the issue, and some which branch out to further issues. I have commented on a number of them.

Philosophy, et cetera - Obligations Beyond the Fetus

Richard is of the same opinion as me that abortion is permissible while causing birth defects while pregnant is not.

Philosophy, et cetera - The Temporal Acrobatics of Harm

On the other hand, Richard believes that we can harm a person after they die, because if a person ever exists, then it has interests not bound by time. Personally, I cannot see any merit in this as it strikes me as ignoring how interests are tied to existing, conscious beings. Since beings are mortal, so are their interests. So we cannot harm anyone after they die.

LTI Blog - Do No Harm (Except For That Killing Thing)

LTI Blog - "Harming" a Living Human Being Non-Person Fetus Thing

LTI Blog - A Moral Obligation to Kill

In these three posts, responding to KTK and Richard, pro-life Serge argues that the issues of abortion and causing birth defects are tied up so that they stand and fall together. I have come out against this on grounds hopefully adequately summarised in one comment I made (although I may soon expand it to to a full posts once I am done with Singer!):

An early term foetus has no interests, and I maintain that a late term foetus has some but fewer than a full person, which are overridden by the mother’s rights to dignity and autonomy. However, once she makes the choice to continue the pregnancy, I don’t see anything wrong with that imposing new moral constraints on her. This does not violate her autonomy as she still has the opt-out clause of abortion.

So why should these obligations arise? Because the effect of the actions very much will be felt by a person, albeit later on. It is like kicking someone such that internal damage only causes pain and death a year on. The delay does not matter. A person quite foreseeably felt the effects, so it is wrong. The fact that in the birth defects case the ‘victim’ was not yet a person does not matter. The effects will harm a person, albeit with delayed action.

The Sanctity of Life

2006-07-12T00:35:00.000+01:00

This will be my first post in response to what I have read of Peter Singer's work. I was not expecting to agree with all of his work, despite him being in broadly the same camp as me in terms of ethical views (pro-choice, anti-animal testing etc). I'm glad that reading a volume summarising his main views, (Writings On An Ethical Life, Peter Singer, 2002 Fourth Estate), has allowed me to find some major points of disagreement, while understanding and respecting his main points.

In this first post however, I will be agreeing with and developing upon one of his points. This is his identification and rejection of the monolithic 'old ethic' which is creaking with the weight of its illogic and incompatibility with modern realities. He calls this the 'sanctity of life' ethic, which holds human life inviolable and intensely superior to animal life. As well as justifying any harm to animals in the name of human wellbeing, it denies that there is ever a reason to end human life unless in the name of saving other human life. Thus suicide and euthanasia are always wrong, as is abortion from the point of conception.

There is much to be said about what is wrong with this, and Singer does so admirably. The specialness of humanity is not premised upon any faculties or abilities peculiar to humans, as otherwise it could not be extended to the seconds after conception or the most profoundly mentally disabled. Furthermore, removing the right to choose to end our lives and refusing to accept that other harms (like extreme ongoing pain or discomfort) can make it worth our while to have our lives ended makes living less a right and more an obligation. What Singer does not identify, I think, is the rationale behind this. Stripped down, I think that it exists in quite startling form. This explanation is purely religious, although it has been unthinkingly adopted even by the nonreligious for a long time.

This explanation for the old ethic is this. Normal 'interests' (to live, to be free from pain, to have dignity, etc) are not what are to be respected. If they were, then it would be impossible to include all that are included and exclude all that are not. Instead, the specialness of humanity is based on the value placed on it by God. What this means is that what is wrong about killing someone is that it offends God's value on the person's life. Moral wrongs are not against people so much as against God. Thus even if a baby and a chimpanzee had exactly the same mental development and state, harming the latter would be far worse because it would be more of a slight to God. This actually rings of familiarity with another institution we are used to. Property. The ethic treats all things purely as the property of God. We would not complain about our property's rights being violated when it is stolen or damaged. We would complain about our rights over the property. The property's value is entirely wound up in those with interests in it. This seems to be exactly what the old ethic does with people, considering them as God's property.

Thus it is worse to harm humans because God places more value on humans. Just as we would be willing to sacrifice less beloved property for more beloved, God is willing to allow animals to be sacrificed for humans. These preferences need not be rational - indeed, as both Singer and I have tried to show, there is no rational divider which neatly puts all humans on one side and all non-humans on the other. It would seem worse to us to damage property that is valuable to someone than property which they care little for, even though the valuation may be irrational to us. This is because it is the owner we care about, not the property. The sanctity of life ethic treats us like property.

For more evidence, a key teaching from Christianity should help. This is the view, inherent in the sanctity of life ethic, that only God may give or take life. This was once used as an argument against medicine (and still is in some fringe groups) and while it is now generally thought that things which kill us are generally evil rather than God's will, the second part of the dictum is widely held to still be true. We may not take life, because that is God's job. God has the right to rob us of our lives. This is entirely consistent with God owning us. A key example is the story of Abraham and Isaac in the Old Testament. Abraham is routinely praised for obeying God in attempting to kill his own son. The action was right, because God said it to be so. This takes precedence over any supposed 'rights' we have. This is because we are God's to do with as He wishes. The general rules of morality are only there because He put them there, because that is how He wants His property treated. Just as how we may allow our property to be destroyed, so may God. Our interests do not come into it.

As an ethic, this posits a radically different understanding of morality from any most of us would recognise. It is no longer about interests and rights, but about God's plans for His playthings. As an explanation for why God's commands make up morality, it still suffers from the same failings as other explanations, as previously considered on this blog, but it also seems most repugnant. If God were to favour one human over another, would the lowlier be morally required to give his life and interests for the other? How is our position any different to that of slaves (who were even recognised as property), albeit with a possibly benign owner?

It is difficult to put into words just how wrong this way of looking at people seems to be. At least it is consistent, but even the most consistent ethics can be wicked. Far from all Christians or religious people would accept this basis, and they need not. God can be worshipped and respected without being owner. A counter-ethic must be advanced which puts the interests of living beings at the centre. This is an ethic towards which I strive, and Peter Singer does exactly the same. I may not agree with him in many ways, but in the search for this alternative, I concur wholeheartedly.

God and Authority

2006-06-16T20:15:00.000+01:00

In this post I would like to point out two problems with the idea that God created morality, going further than the arguments in my post about Relativism. These arguments will not necessarily work against the idea of morality from nature itself, although I have already dealt with some of the arguments from nature by basically arguing that if there are such standards, they are completely unknowable.

I will attempt to flesh out the following passage I wrote in the above post, and consider its implications for the idea of God making morality:
"In the end, authority is a human concept. Furthermore, while clearly whatever posits universal standards requires authority to do so for legitimacy, authority itself is merely a status given to one which allows him or her certain rights to do things and creates obligations on others to do other things. Rights and obligations are in themselves creations of morality, so in the end there is a circularity to the concepts. Morality is only underpinned by morality, perhaps underpinned by the acceptance of the people. In the end therefore, morality is dependant on the understanding of the people, and that can only mean relativism."

The Authority Paradox

The crucial assumption to pick out of my argument here is that authority is a moral phenomenon. Interestingly enough, not everyone seems to believe this. The works of John Austin suggest that authority is in fact the power to enforce one's dictates. If we apply Austin's definition to God, we see something interesting. As long as we imagine God to exist and be roughly like He is presented in Christianity or similar traditions, He could have the power to enforce his dictates. Of course, for Austin possession of power is insufficient - willingness to use it was required. We can use the idea of Hell as explaining in what way God enforces his dictates. In this way, God could have authority. What this means though is that morality is no more than avoiding punishment. The only way to distinguish being moral from actions done to avoid the hangman's noose or the highwayman's gun is by the source of the obligation. In the case of morality, it would be God threatening punishment for non-compliance. If this is the meaning of authority and morality, then both are reduced to questions of power and avoiding punishment. Instead, it is submitted that any morality people demand that God creates is much richer and more important than this. It is supposed to create obligations in a way that normal threats do not.

Joseph Raz said that authority is a reason to act. He explained it in terms of authorities taking old reasons and assessing them to create a new reason which (if we accept the authority) excludes consideration of the old reasons. Again, this presents an interesting view if we consider the supposed authority of God to determine morality. Conceiving of God as weighing up moral arguments to create a uniform code is tempting, but it requires us to accept a background morality behind God. It gives no account of how God could create morality ex nihilo.

So the only way that God could have the authority to create morality without reducing the concept of morality to orders backed by threats is to conceive of authority as moral in nature. This seems to me to be what is generally meant by the term. When we say someone has authority, we mean that they have characteristics which make it good to accept their commands, or at least to take them into account. It is submitted that this is the only rational way to conceive of God's claim of authority to create morality. It must be that He has the moral characteristics to make it right for people to follow what He says.

The downfall of this should be obvious. If God's authority to create morality stems from moral characteristics He possesses, then the morality of these characteristics must come from elsewhere. God cannot bestow on himself the authority to do this, as he must have authority in order to create any moral truths, including authority. The authority to create morality including authority must come from elsewhere. If God is to have any role in morality, it cannot be as its sole creator. There must be some background source of his authority.

The Reason Paradox

There is another problem with the idea that God can set morality that has occurred to me and which revolves around authority, a tension in the idea that God’s moral standards are the only valid ones. If they are, then they take precedence over any human moral beliefs. If God were to instruct one to torture a child, they would have to do so even if they found this abhorrent. This means that as far as morality goes, human reason is inadequate and useless. We must follow God’s morality instead.

So far, so good. This is accepted by many Christians. The problem is that if this is true, then humans are clearly not qualified to place God as the centre of their moral worldview. If their reason is inadequate to decide morality, then it cannot be adequate to work out that God determines morality.

The response to this will clearly be that while reason is inadequate to work out morality from scratch, it is still adequate to figure out other, logical things, like God’s supremacy over morality. But this is flawed. As was explained above, authority is a moral concept. Picking a basis for a moral system is a value judgement, whether it is by deciding that God’s rules are worth following, or that some human value should be the basis. To say that God has the authority to dictate morals is as much a moral opinion as is saying that Bob has that authority. Therefore even if God objectively had the ultimate authority to dictate morality, we would not have the necessary moral reasoning skills to appreciate it. Anyone claiming God had moral authority would be guessing at best. Therefore a claim that God is the ultimate moral arbiter is ridiculous. (Note that again this argument does not apply if God is merely taken as describing a morality that exists independently of him.)

The only argument which could really seek to counter this is that humans are capable of moral reasoning, but that this should tell them that God is the ultimate moral arbiter, who should take precedence when His word conflicts with other aspects of that reasoning. This is a clever argument but fails in its application. Even if God would never overrule a moral rule that we submit to His higher moral judgement ('the moral precept'), acceptance that our reasoning must be subservient to that of another is acceptance that our reasoning is inadequate. It is logically inconsistent to hold the moral precept in higher stead than the rest of our carefully thought out moral logic. Doing so would not just be having God overrule out views, but having one particular among our views override the rest of our views. A moral system cannot consistently come to a conclusion like that. If it holds two inconsistent views then it must hold that it was mistaken in some way, not that it was right in both but that one takes precedence over the other as the precedence condition is itself a moral view inconsistent with the overridden view. God's authority over us must come from a moral judgement which is just as fallible as any of our others, so it makes no sense for it to overwhelm others.

The results of these paradoxes is that it makes no sense for God or any being to create morality, as they would need authority to do so, and this comes from a moral code. Even if this hurdle were somehow overcome there would still be no way for people to know that God is the ultimate creator of morality as the claim itself would if true nullify the ability of the claimant to accurately make such a claim. These paradoxes do not necessarily damage theistic beliefs or even the idea that God has a role in morality. However, I believe that they do considerable damage to the belief in God as the sole and complete author of morality.

The Purpose Of Ethics

2006-06-09T20:27:00.000+01:00

This post will consider the purpose of ethics and ethical theory, and in it I hope to explain the importance of consistency in ethical theory. The reason for this is that there is a potential objection to all of the ethical suggestions here, and many from ethicists across the ages: Why should my ethical beliefs be logical? An explanation of this is needed if there is to be any way to communicate with such people. The theory that I espouse may be somewhat surprising, but I hope that it can also be seen as illuminating.

I shall distinguish two aspects of ethical systems: Intuitions and logic. The first is the intuitive ethical judgements that we all have independently of any rational examination or logical underpinning. Now I emphasise that I am really referring to principles rather than assumptions. If someone merely assumes that something or wrong or right, it is more likely that this assumption can be challenged and overturned. Instead, by intuitions I more mean principles which are very unlikely to be changed no matter what arguments are given. An example might well be that all other things being equal, we should not kill. No matter what arguments are given to most people, they are not going to change their minds and think that killing is fine. This does not mean that these principles must be absolute. There can be numerous exceptions to when killing will be wrong, but none of these attack the basic principle itself. The more intuition based a system is, the more of these basic beliefs are held as unassailable and, in general, the more dogmatic a belief system will therefore be.

The second is logical principles derived from intuitions. This will use analogy and juxtaposition in order to make sense of the intuitions of the system, forming them into a coherent whole. Consistency is crucial here, as logic requires significant distinctions between cases if we are to alter the conclusions we reach. While intuitions are very difficult to displace since they are not based on logic, logic itself is always subject to contrary argument and reconsideration. So the more logic-based a system is, the more consistency it is likely to have to unify the intuitions.

I think that the interaction between these two forces can explain how logical systems grow up. In developing new theories, there are some conclusions that if reached I would refuse to accept, like if they made murder morally necessary. On the other hand, my stances on more complicated issues like abortion are the product of careful ethical reasoning and so could theoretically be overturned by logical argument. It is submitted that it makes more sense to have simpler principles as intuitions, since this can allow a greater basis for logic to work to fill in the gaps. If abortion being wrong was the principle, it would be difficult to apply this to many other cases - is it wrong to kill, wrong to visit a doctor, wrong to make choices etc? Instead, how most people actually work is by using the principle that it is wrong to kill and building up to the logical decision that abortion is wrong. We can often whittle down our strongest held views to a few irreducible intuitions and it is submitted that this is healthy.

However, our imaginary adversary might argue that his ethical system consists entirely of intuitions, and that he feels no need to be consistent. If this is true, then we are stumped - how can we convince this person of anything? This position would seem difficult to attack, but it is submitted that there is a good reason not to adopt something like it. This reason, the reason that it is better to use logic to create a consistent ethical theory as far as possible, is that it better allows us to achieve one (if not both) of the dual purposes of ethics.

Here is where my examination becomes controversial. It is usually thought that ethics and an ethical system have only one purpose, which I will put like this: It helps us to flesh out what we believe to be right and wrong from our dearest held intuitions. This means whittling down what we believe to intuitions and, for most of us, using logical consistency to apply these to other cases. This interaction between intuition and logic helps us to create an ethical system. However, the intuitionist will say that they can create an intuitive ethical theory just as well. If this is true, then we must look to the second purpose.

This second goal of ethics and ethical theories is to persuade other people of our ethical conclusions. When we force ourselves to take our intuitions to their logical conclusions however uncomfortable, we do so in order to give the necessary rationality to our ethics to use them to challenge the ethical systems of others. We develop our ethical beliefs not only for our own sakes, but in order to convert others.

This needs to be considered further, because it has rather surprising implications. If we imagine a world where everyone used purely intuition-based ethical systems, then no-one would be able to change the mind of anyone else through logical argument. This might work perfectly well for some people, but for most people it would be infuriating having no way to persuade people that their system was more valid. While it is important to be true to our own ethical standards, an important aspect of this is the possibility that this could encourage other people to accept our standards for themselves. Thus it is that people are not content with keeping their ethical views entirely private. Ethical debates are not about trying to find some abstract truth, but encouraging others to accept our views.

The only way that there can be meaningful ethical debate and ethical conversion is through logic. Of course, a lot of personal ethics is not logical but intuitive. However, in order to give ourselves the ethical ammunition to attack others, we limit the number of absolute intuitions we accept and piece together the rest of our systems with logical extrapolations. It is a trade-off, because while we now have the ability to attack other ethical theories, we have laid our ethics open to criticism and attack by others. Purely intuition-based ethicists cut themselves off from this world of ethical debate, unable to influence or be influenced. This gives their ethics a much narrower purpose. They merely know what they think right, not why. Furthermore, this damages the possibility of ethical co-operation when it comes to political and social ends. The more basic intuitions people have, the less likely they are to coincide. Almost everyone can agree that suffering is wrong, but it is harder to agree on how to react to poverty, and even more so when our only source is our own gut reactions. By reducing the number of intuitions we use, we find ourselves more able to coincide with others either by sharing intuitions and coming to agreements on how to logically build on this, or using different intuitions to come to the same substantive results (see my post on Block Theory). In short, having a more logic-based ethical theory bestows on us a greater ability to co-operate and influence the views of others. In a society such as ours, that becomes crucial.

The result is that consistency, a crucial element of logic, becomes a prerequisite to any successful ethical theory, measured by these yard-sticks. Attempting to cling on to one's beliefs by avoiding ethical debate has a number of disadvantages which suggest that it is for the benefit of everyone that we instead open up our beliefs for logical consideration.

Let us consider a worked example. Fred believes that abortion is wrong. Originally his position is entirely intuitionistic, and that suits him just fine. However, over time this comes to frustrate him. He is unable to persuade anyone else of his view and so feels that he is failing to do as much for his cause (which he views as right and good) as he could. He also has no luck in pushing for legislation outlawing abortion because no-one has any reason to agree with his views. Finally, Fred decides that action is necessary. He examines his intuition that abortion is wrong and through consideration, converts it into a logical inference from a number of other intuitions, primary among them being that killing is wrong. He finds that the more he reduces his intuitions down to less controversial intuitions plus logic, the better able he is able to argue with other people and in favour of his legislation. Even though his base intuitions may not be in accord with others, he is able to build up to conclusions with which others agree and finally to try to convince them of his ultimate conclusion. He may win a few converts or, potentially, he may have his logic challenged by those on the other side. He has taken the risk of challenge with the benefit of the chance to challenge. The risk has been worth it to convert others.

One might argue, however, that Fred has only let logic enter his system in the case of abortion, and only there because he cares enough. Anyone who tries to talk to him about climate change would have their pleas fall on deaf ears. However, it is not so simple. Once Fred has acknowledged the value of logic and consistency, this demands that it spread out across all his views. One may use a logical analogy to abortion in order to convince him of another view. Moreover, if he refuses to logically examine his beliefs in other areas Fred can be accused of hypocrisy, damaging his stance on abortion. Furthermore if Fred also cares about what he believes to be right, the introduction of logic in one area is more likely to make his think that he should logically examine all his beliefs. In short, although everyone has different issues about which they are passionate, this is likely to lead to the necessity of a defensible, consistent ethical view in all issues, or at least any brought up.

So to the hypothetical antagonist who claims that their system is entirely intuitionistic, the answer is simple. They may take that position and run with it, but they will never be able to persuade anyone on any ethical issue unless they allow in some element of logic to their views, and once that happens the process may not so easily be halted. The more forward thinking and efficient course is to open up all our ethical views to logical consideration, whittling down our intuitions as far as possible, so that we can face opposing views head on.

Animal Rights - Practicality

2006-03-20T05:13:00.000Z

The last post was an attempt to explain why animals should be treated with empathy in their own right, rather than just in order to appease humans. Now it is necessary for me to explain how to apply this without ridiculous results. Clearly, we cannot give to all living things the rights we give to humans. We cannot have them vote in our elections, as they have not the means to understand the consequences. Similarly, the right to an education (at least in the human sense) would be wasted on them. Furthermore, do we give rights to plants? As they are living too then we need to explain if and why they are distinguished from animals in what rights we give to them.

The answer lies in the fact that as always the better empathy to apply is appreciative empathy. Remember, this means that rather than treating other beings as if they were you, you should treat them as you would want to be treated if you were as them. So the question is what would they not like to have done to them? Now, sadly we can only experience being human, so it is impossible to know exactly. Some have taken this to mean that we cannot say that any of them experience pain and suffering, and so we cannot seriously contemplate animal rights. However, I say this is misguided. We cannot know that anyone other than ourselves really experiences pain and suffering. The whole point of empathy is to impute our understanding of positive and negative to others in order to do good to them. Our brains are wired up to recognise pleasure and pain in others, and to an extent in animals. We should use this, and all scientific methods available, to save animals from unnecessary pain and degradation.

So far this is pretty obvious to any who care about the rights of animals. Of course we should help them to avoid unnecessary pain and suffering. However, the next step is more difficult for many to take: What about death? There are a great many who will quite certainly say that animals must not be unduly distressed, but then accept mass slaughter of them, especially when it comes to food for humans. Often this is because they are so used to eating meat that the idea that it is wrong seems ridiculous. However, many of the arguments used to justify the practice would be seen for their weakness in other areas, and it is only here that they are allowed a sense of reasonableness (remember, I am only dealing here with people who do in fact accept that animals should have rights).

The best and most widely used of these is that it is natural for humans to eat meat. The argument from nature is bizarre in that it is used so selectively, for so few purposes, and yet many people give it much weight when it is. It is respected by many when used against homosexuality (ignoring the many examples of it in nature) and in favour of meat eating. But what if we were to accept this argument in a principled way? What is and is not in our nature? Evolution gave us what was necessary to survive, and especially for men this left strong desires for sex and violence. In many ways those are basic to our nature. The nature of men is arguably promiscuity, and yet we do not place any virtue on this. The same applies to violent conflict, even if we see it as necessary on occasion. Almost no-one truly believes that ethics should be determined by our nature and impulses. If it was then any kind of society or consideration for others beyond self-interest would be frowned upon. Clearly nature is not enough to found any kind of argument for eating meat.

A more sophisticated argument is necessity. The argument goes that unlike random torture of animals for pleasure, killing them for food fulfils a basic human need - sustinence. Now clearly the literal truth of this cannot really be argued any more. Vegetarians can live perfectly healthy lifestyles. What the argument has devolved to is one of convenience. It may well be more convenient to eat meat rather than living as a vegetarian, but since when has this ever determined ethics? It would seem incredible if convenience could be used to subvert ethical considerations. To use an example from within the question of animals, it will often be more convenient (which means more cost effective) to keep chickens locked up and force fed food rather than allowed to roam free when it comes to getting eggs. Does this allow us to ignore the ethical considerations of poorly treating these chickens. Again, if one does not believe animals have any rights, contrary to my previous post, then this will not persuade. But if, like myself and I believe a majority, you believe they do then this argument from convenience cannot be allowed to stand. (Similarly the Christian idea of human dominion over animals may prevent abuse of them which damages their worth to humans but cannot condemn and may indeed positively encourage cruelty in situations like here where it reduces the resources used up.)

A true argument for necessity may however be launched in favour of animal testing for medical research. This requires careful consideration. In essence the argument is that even though animals have these rights, they are prima facie or utilitarian (on the balance of goods) only and so can be overridden where necessity (ie. respect for human life) dictates. This suffers the problems of simplistic utilitarianism and if it were applied to humans the problems would be incredibly clear. If the rights to freedom from torture and death are only prima facie, to be overridden in order to prevent a greater volume of torture and death, then it would be morally justifiable to do testing not on animals but on human prisoners, especially since they would be more effective that way. The fact that such human experimentation appears abhorrent lends support to my view that empathy makes such rights definite, not utilitarian. (To clarify, I am not saying they could not necessarily be overridden in certain circumstances like killing for self-defence. Indeed my second abortion post argued that even if a foetus is a human life, respect for the dignity of the mother can override its right to life. However, I am saying that it can never be reason enough merely to say that it helps more people if we violate this right.)

So a number of possibilities can be identified. No rights for humans or animals has been rejected out of hand. Rights for humans but not for animals was dealt with in the previous pose. Definite rights for both is my argument. Utilitarian rights for both would appear abhorrent (on the human side) to empathy and most thinking. Therefore supporters of animal testing would have to support definite rights for humans, but only utilitarian rights for animals. However, this distinction is arbitrary. A very good reason would have to be found to give an entirely different type of right to the two groups, and the reasons given have fallen very short.

The clearest problem with most of the suggestions for morally distinguishing humans and animals is that they are ignored when applied to humans. Appeals that animals are stupider or not self-aware or cannot themselves empathise do not account for humans who are stupid, not self-aware or unable to empathise. No one would suggest that their rights should be considered lesser because of this. In essence it is not the type of mind but the body, the shell surrounding it, which determines whether such people think these rights should be surperior or inferior. There is clearly no principled reason for this. Appreciative empathy only varies depending on what would be appreciated by the object of the empathy. It does not punish them for lacking empathy themselves. Unless we are to abandon the norms of ethics and resort to the law of the jungle, they must apply to those who will not apply them back to us. Otherwise they are not ethical principles at all, only self-interested and cynical pacts.

So what are we left with? Once one accepts that animals deserve some rights, it seems impossible to identify a reason to deny them the same rights as humans (subject to the appreciative empathy filter of only rights which they will appreciate) which could not apply to some humans. Unless we radically devalue the protections rights give to humans, convenience and even necessity in the utilitarian sense cannot justify their torture and death.

There is one final, somewhat bizarre argument which seems to underlie many arguments of those who eat meat while arguing that animals should not be treated cruelly. This is that killing them is okay as long as it is painless. They are not suffering, so it is not wrong (this is often annexed to the convenience argument to tip the scales in favour of allowing it). This goes right to the heart of the question of what is wrong with murder. Of course, none of these people would suggest that murder of humans is okay as long as painless and without causing fear. Instead they would suggest that somehow the wrong of killing is limited to humans. Again, this distinction makes no sense. Why is painlessly killing a human sleeping soundly in her bed wrong? The reason which appeals to me most is that you rob them of something: Their awareness, their mind, their memories and experience. This of course applies equally to animals. Any distinction will again be one which could apply to any human and is not morally significant in any normal scenario. Equally the rationale that one violates the person's autonomy applies equally well to animals. Whatever reason is used for the distinction, there is no reason that killing can be excused just because it is painless.

It has been argued in this post that once it is accepted that animals are worthy of rights so, as the last post argued, they should be treated well for their own sakes rather than for the benefit of people, they must be accorded the same rights as humans as far as they can appreciate them. The distinctions offered to support eating meat and animal testing are unprincipled and illogical. Hopefully this will help those who do not understand my vegetarianism, and perhaps persuade others to consider the issues for themselves. If you cannot find a way, given what I have said, to justify these distinctions, please ask yourself this: How can conveniences like eating meat be worth violating the ethical standards we hold ourselves to in other areas? Do we actually have ethical standards? Or do we only have them until it is convenient to cast them aside? Goodnight all.

Animal Rights - Justification

2005-12-15T23:57:00.000Z

I have been a vegetarian for seven months now. The cravings for meat have mostly gone away now, and I feel happy to have gone with my conscience on this one. However, I still get baffled friends and relatives asking me why I would give up meat. I think it's time to properly explain, in the context of a general consideration of animal rights.

Animal rights have a bad reputation at the moment. Certain extremist proponents have come as close to domestic terrorism as we have seen in England in recent years. In my university city of Oxford, property belonging to my college has been burned down in the name of animal liberation. This has turned some people away from animal rights completely.

This is a completely illogical and irrational response, however. The methods by which an ideology is pushed do not affect the merits of the ideology itself (unless it encourages the methods of course). Can we look back at the civil rights movement in the USA and the advances for racial equality gained and disdain them because of the violence supported by those such as Malcolm X and the Black Panthers? Of course not. The ends do not justify the means (at least usually) but the means do not tarnish the goals.

Furthermore, and even more profoundly, the fact is that the subjects of the ideology (the animals) had nothing to do with the misbehaviour in their favour. While even in the above example one may say that those who commit terrible acts run the risk of damage to their cause, it is completely unfair to say the same where they are acting for the benefit of another group entirely. It is as ridiculous as disdaigning action against child cruelty because of misbehaviour by organisations opposing child cruelty. Opposing and disdaigning the organisation is rational and principled - doing the same to the cause is neither.

But now to more weighty considerations. To what extent should we protect animal rights? The beginning point as usual, is here empathy. The question is whether and to what extent empathy should be extended to non-humans. Whether animal rights should exist at all is dealt with in this post, and to what extent they should exist in the next.

There is a point of view that empathy should be limited to humans entirely. We should consider animals merely in terms of their value and utility to humanity. By this logic a pet cat should not be tortured due to the distress caused to the owner. Presumably the action would be morally neutral if the cat were an unloved stray, or if its owner did not care for it at all.

While disagreeing with this view with a vehemence, it is possible for there to be a logical consistency to it. A lot of laws against cruelty to animals can in theory be reduced to sparing humans the knowledge that animals are suffering.

Justifying the separation of humans and animals is tricky, however. It can often be explained by a biological instinct to favour our own race over other races. However, explaining is not justifying. In morality, it is necessary to do more than merely explain a stance in order to justify its adoption. The biological instinct can also lead us to favour our family over outsiders, our country over other countries, and our race over other races. Faced with that, few would suggest that it justifies any moral stance.

It is argued by many religious people that God favours humanity. I have already outlined why I believe that God cannot be seen as the ultimate moral authority. If one accepts that animals are unworthy of empathy merely because God says so, without any justification for this, then one has surrendered one's own moral reasoning. In such a case trying to convince such a person of a different moral view is probably futile - the only block which can be challenged in the system is blind acceptance of what they believe God to say.

Outside of that narrow category, other justifications are given. The idea that God created animals for humanity has little bearing. As explained before, there is no reason why God has the authority to create or vary the worth of individuals. He could not make animals worth less than humans any more than he could make women worth less than men, or black men worth less than white men (although both have been so argued). There would have to be something inherent in animals to make them worth less.

Instead, the idea of objective worth is a human notion with no reality attached. No matter how many subjective valuations of worth are made, this never adds up to an objective valuation. Nothing, human, animal or inanimate, is objectively worth anything.

In my Empathy post I explained why empathy was a good basis for a moral system. It does not require objective worth in order for this to work. However, many of the reasons for it boil down to empathy being instinctually good, and benefitting ourselves in the long run. It is possible to restrict it to humanity without destroying the basis upon which our faith in empathy is built. On the other hand, it is (or at least was) possible to restrict it to our own race in such a manner, and yet most good people today refuse to do so. I refuse to do so too, and I refuse to restrict it to humanity. I do so for what can be thought of as the following reason:

Empathy is about helping those you could have been. You could have been born otherwise, and your empathy helps those who are not you. Empathy ensures that had you in fact been born otherwise, you would have benefitted from this.

This is not a justification for empathy, but the rationale that I believe is supported by the partial justifications. It explains the empathetic impulse, it is intellectually coherent and it gives a self-interest slant to altruism. It is the most enlightened self-interest there can be.

With that in mind, we can explain why empathy should equally apply to other races. It also extends far beyond our species, to any living thing. In the next post I will consider how it should be applied in such a way, to such a diverse range of objects, without losing any of its coherence.

Abortion And Rape

2005-09-16T21:57:00.000+01:00

It has always struck me that one of the biggest problems for the mainstream pro-life movement is their position when it comes to abortion after rape. It seems difficult for them to find a position on the issue consistent with the values they claim to espouse. Here is why.

In the last post I mentioned two big arguments of the pro-life movement: The supremacy of the right to life over other rights (like dignity and autonomy), and the (at least partial) responsibility of the woman for her pregnancy. The scenario where a woman is raped creates a tension between these arguments.

The mainstream position seems to be that rape is an exception to the general rule that abortion is always wrong. Why is this? It is true that an unwanted pregnancy can feel much worse if caused by rape. The feeling of violation can be extended throughout the pregnancy, and the woman might be torn between giving the child up for adoption (which can be a heart-breaking experience in itself) and keeping the child around, a constant reminder of the terrible act. So the consequences for the mother are likely to be worse.

But looking at the situation honestly, has the sole fact that the consequences are worse ever motivated the mainstream pro-life movement to make exceptions? A young teenage girl can be terrified of what is happening, completely unable to cope emotionally, and this tends not to change the judgement that 'abortion is murder'. Only if the woman's life is in danger will an exception otherwise be made, and that is an extension of the idea of the right to life. So if not the extent of the consequences, then what motivates the exception in the case of rape?

Well, it is the second principle above, that normally the mother gives up some of her rights by dint of being responsible for the pregnancy. Here of course there is no responsibility so the principle is applied to give an exception. The major problem for pro-lifers is that adopting this contradicts the idea that the right to life trumps all other rights. If this were truly taken seriously, it would not matter that the pregnancy was no fault of the mother. In order for this to matter, the fault of the mother must be the deciding factor above the life of the child. Acknowledging that the rights of the mother have some part to play means accepting that the whole thing must be considered on a case by case basis, and not purely on the basis that there is a child who must not be killed.

So what is the alternative? Some go further than the above and argue that abortion is wrong even in cases of rape. It avoids the above problem of compromising the life of the baby for the sake of the mother. However, it appears an incredibly uncompassionate response. It also jettisons the principle of the fault of the woman by not needing any fault on her part to require her to carry the baby. It means that even an unarguable victim is forced to undergo the further consequences of an unwanted pregnancy without fault, rather than being given the chance to prevent these consequences. I do not believe it to be too emotive to suggest that in a way this compounds the rape - enforcing a violation of bodily sanctity on one who is completely blameless.

To summarise: To make an exception for abortion after rape compromises on the absolute supremacy of the right to life, and to make no exception compromises on the requirement for fault on the mother's part. So, if this is true does this mean the pro-life ideal is inherently flawed? Not necessarily. It just means that to achieve consistency, only one of these principles can be maintained.

If the supremacy of the right to life is maintained, then no exception is made for rape. The woman is denied a means to end the violation of her person started by the rapist. I consisder this horrible, but at least it is consistent.

If the fault of the woman is considered paramount, an exception can be made for rape. However, with the absolute supremacy of the sanctity of life removed, a balancing exercise must take place. If other rights can override it, then why not in some cases without rape? Could the distress and suffering incurred not outweigh the right to life even without rape involved? Insisting that rape is still the only exception begs the question of 'why?'. Why, if the right to life can be displaced? Logical consistency requires weighing up other situations to see if they too could justify abortion.

While this balancing exercise can be difficult, it can be a consistent position. However, it requires leaving behind the absolutist approach to abortion and adopting one of relativism, anathema to the mainstream pro-life movement. It also begs the question of who is to judge. The courts? The doctors?

Might it not be better leaving it up to individual conscience after all?

Abortion And Autonomy

2005-09-15T14:00:00.000+01:00

In the last post I noted that the problem with abortion is weighing up the different interests: Most obviously, the right to life of the foetus and the right to autonomy and choice of the woman. While I put forward one way people use to weigh up the situation (pre-existing attitudes to sex) I suggested that this was a poor way to consider the situation. Now I will explain one of the main reasons that I am pro-choice.

Looking at the two major competing interests as stated above, it is easy to quickly conclude that the right to life must trump all else, as superior and more important. This is one reason people argue the pro-life viewpoint. Another is the idea that the woman is (in cases other than rape) at least in part to blame for the pregnancy while the foetus is blameless. Therefore the benefit of the moral doubt must go to the foetus. In a way this suggests that as a punishment for consenting for sex, the woman gives up some rights over her autonomy. She has no right to complain as she could have prevented the whole situation from coming about.

These arguments should be kept in mind as I present my analogy, and I will come back to them. For the record, when I became a fully fledged liberal and attempted to apply the idea that people should have autonomy over their bodies and choices to my beliefs, abortion was one of the three main sticking areas (along with prostitution and drugs) which caused me a lot of trouble. It was a long time before I was able to put myself on one side of the fence on the issue, and it was only when I came up with my analogy that I was able to see the issue clearly.

The Driving Analogy:

A couple enjoy driving around in their new sports car. They are not going anywhere in it, just taking it around the roads at reasonably high speeds, the wind in their hair. There is of course always a risk while driving, but they are competent drivers and only think of the feeling of being on the open road.

One day, something terrible happens. They do not see a pedestrian until it is too late, and although they swerve to avoid him they hit him and the car crashes, knocking them both out.

When the woman of the couple wakes up she is in a hospital. Around her are doctors trying to reassure her, and as she becomes more lucid she realises that something feels wrong. Looking down, she sees many tubes attached to all different parts of her body. All of them lead across to an adjacent table, and on it lies the pedestrian they had hit. Before she can struggle and rip the tubes out, the doctors hold her and soothe her, telling her to relax.

Once she is awake, they explain to her what happened. Paramedics arrived at the scene of the crash and took the three injured people to hospital. It quickly became clear that the pedestrian was in bad shape. His organs were damaged, unable to perform their functions to keep him alive. He was also losing a lot of blood.

However, they realised that there was a way to save him. Using all their skill and technology they were able to hook him up to the woman, whose blood type matched his. By using the sustaining power of her almost undamaged body, they were able to keep him alive, and he is slowly starting to recover, by leeching nutrients from the woman's blood and using her organs.

This disturbs the woman much, but she is glad that the man is at least alive. However, she is shocked to learn that estimates suggest that the man will need to be hooked up to her, unconscious, for nearly nine months before he will be able to survive alone (and even then he will need constant care for some time). The woman is horrified at the idea of having him hooked up to her in this way for such a long period of time.

As time goes on she feels worse and worse as she can constantly feel the way her life is being leeched for the man's purposes. Her emotions go beyond her control and what she can do is restricted. She also finds out that unhooking him so he can live on his own is likely to be a very painful, exhausting and embarrassing procedure.

She starts to consider the possibility of refusing to continue her existance like this, removing the tubes and so letting the man die. As she considers this, she recieves guidance from two sources. One side call themselves pro-life, and insist that it would be murder to do so. They tell her that it is her own fault that she is in this situation, so she is obliged to let the man continue to leech her life force and undergo the final operation. The other side is pro-choice, and tell her that she has autonomy over her body, and so it remains her choice as to whether she removes the tubes or allows the man to stay like that. They say that no-one has the right to force her to remain like that.

End.

The question, of course, is which of the two sides would you agree was in the right? I will not patronise by going through the analogy explaining every line of it. Needless to say, the driving is sex, the crash is getting pregnant, and the pedestrian is the foetus growing in the womb. I would like to explain how this can help to shed some light on the issue of abortion.

Earlier I said that it can be easy to immediately conclude that the right to life is more important than anything else. I would say that the analogy might help to dispense with this particular gut feeling. While the right to life is important, I would argue that it is not enough to completely void the rights of others to autonomy and personal dignity. Other analogies could be given like this: A criminal threatens to kill a man unless his girlfriend allows him to have sex with her. While many would do it for their lovers, it would seem ludicrous to expect an absolute obligation to consent to sex to protect someone else's right to life. In the original analogy, the woman has to put up with much indignity and sacrifice some of her autonomy to keep the man alive - often pregnancy requires similar sacrifices. The point is that just because a life might be at stake, does not null and void all competing rights.

Secondly, it was suggested that some pro-lifers think the woman's choice should be nullified as punishment for partly causing the situation. If the response to this was not already clear, I would hope that the analogy would help to make it so. While it may be legitimate to associate blame with the act, the point is that the 'punishment' or consequences are wildly out of proportion with the infraction committed. It is like shoplifting in a country which executes theives. Even though the consequences might be foreseeable, it is not right to say that the consequences are fair because they are to blame. Our natural sense of justice (and empathy, I would hasten to add) requires that we only enforce consequences / punishment on people if it is proportional to the wrong done. In the analogy, while perhaps the driving was an unnecessary risk, the terrible consequences for the woman are out of proportion. Similarly the consequences of pregnancy on autonomy and dignity are far out of proportion to the 'wrong' of sex, particularly given the natural urges and societal pressures involved.

As such, it is argued that the analogy suggests that the decision must in the end be with the one whose dignity and autonomy is compromised. It is her sacrifice to make, not for someone else to force her to do so. The analogy made me firmly pro-choice, and remains my favourite way to explain my position.

Abortion And Sex

2005-09-14T01:58:00.000+01:00

Of all the hot-button moral issues out there, abortion is quite possibly the most sensitive, and most disputed. When all other arguments have been uneasily reconciled, there will always bile and vitriole on this one. There are huge swathes of people on either side of the issue who will budge no inch, angrily defending their point of view. Then there are those in the middle, carefully drawing out a compromise which can never be reached. Other questions like stem cell research and cloning rest on this one. And it will never be settled, not really. Perhaps that is for the best.

A lot has been said about abortion, and so it is extremely difficult to say much that has not been said before. However, here is what I feel I have to offer to the everlasting debate.

In this post I will explain some thoughts on the motivations of those on either side. While no argument should be assessed based on the merits of its proponents (which would be an argumentum ad hominem), it is useful to examine them nevertheless. It seems to me that the vast majority of people on both sides either care about both the mother and the foetus, or would do so were it not for an attitude (call it a prejudice) developed due to this issue. Only a very minor fringe would otherwise act with complete disregard for a woman's autonomy or the wellbeing of something which can look and appear so human. So, given this groundpoint, what makes a person come down on one side or the other, to weigh up the interests and make their decision?

I would like to stress that many base their opinion on logical reasoning, personal experience and general gut feeling on the issue. Others are pushed one way or another by religious leaders, parents, friends etc. But I would argue that a fundamental factor which has helped to split opinion on this down traditional liberal / conservative lines is the attitude people have to another issue: SEX.

To the extent that I accuse either side here, I accuse them fairly equally. Those that come in with a sex-positive, free love kind of attitude are far more likely to be pro-choice. The reason is obvious. Not to mince words, but it is much easier to advocate the positive aspects of sex while downplaying the risks and consequences. While screening and a degree of care can minimise the risks of STDs, and treatment is generally uncontroversial, it is more difficult to talk away the risk of pregnancy. Firstly, because it potentially involves another, innocent third party (the potential child) rather than the willing participants. Secondly because it always has been, and always will be a real possibility. Short of extreme measures infeasible for many, the risk of pregnancy will never go away. By having abortion as a way of clearing up any 'accidents', the problem is solved. Sex can be relatively simple and without too many negative consequences. In short, promoting abortion fits a pro-sex agenda.

What of the other side? Those that come in with a sex-negative, restrictive and prudish kind of attitude are far more likely to be pro-life. For many of them, people need to be warned off any kind of sexual activity before marriage. Particularly in the USA, where anti-abortion activists have much influence, a lot of the reason for this attitude is based not on fear of consequences, but on religious teaching (which, ironically, I would argue probably originated from fear of consequences, but has now been merely cristalised into dogma). It is very hard to sell this reasoning to youth, and abortion becomes the logical way around this. By equating abortion with murder, many are (perhaps only subconsciously) trying to scare young people off sex. 'Look at the possible consequences', they are saying. 'If you dabble then you may have to choose between raising a baby or being a murderer.' It is a clever method of control. In short, condemning abortion fits an anti-sex agenda.

Again, there are many, especially outside of the USA, with good, sound reasons for their opinions on abortion. I like to think I am one of them, and I will explain my opinion in my next post. For now though, I am trying to point out that a lot of the arguing either way is actually based on an attitude to sex rather than to abortion itself. I just hope that eventually more people can learn to block that out and look instead to the issue itself, with its own, much more important, facets.

Empathy

2005-04-06T16:20:00.000+01:00

The past few (regular) posts were used to introduce my view of systems of morality. The two on relativism argued that all systems must be given credance as there is no universal standard by which to evaluate them. The last one was to explain how these systems could interact through moral arguments. Now it is time to look at my moral system, the one which I would recommend, by considering its fundamental basis: Empathy.

What is empathy?

As a base description, empathy is the ability to see things from another point of view, and act with consideration of the needs and desires of others rather than just one's own.

Why empathy?

On its face, this question is ridiculous. If, as argued before, the basis of one's system cannot further be justified without going down to further base facts, how can I attempt to explain my reliance on empathy? Well, my reasoning is this: Although I cannot absolutely show why empathy is my basis, I can give partial explanations. None of these is enough as a block to support empathy. However, together they might at least give a way of defending empathy from other systems seeking to claim dominance. If one wishes to see these as 'mini-blocks' holding up empathy, they are free to do so!

The first answer to "Why empathy?" is that it is a key feature of most moral theories. Most religions include in their ethical codes something along the lines of what is, for example, expressed in the Christian tradition as "Do unto others what you would have them do unto you". Of course this key command predates Christianity and indeed, all modern religions. It manifested in pagan systems. In fact, my problems with religion generally manifest when their ethical codes deviate from this command. For example, for many Christians it is subservient to the obligation to obey God. As far as non-religious ethical systems go, Utilitarianism and Kant's writings also give examples of sytems focussing on harm caused. The best way to assess harm seems to be through empathy.

However, I would argue that the case for empathy goes much deeper. A second reason to use it as a basis seems to me more pertinent. Many of us like to believe that we are different from animals in some way, separate and above them. Personally, I do not have much time for such beliefs, as I see them used to excuse ourselves of fearing behaving like savages. We are part of the animal kingdom, but I can well understand the desire to separate ourselves from the rawest part of nature, survival of the fittest. I see in empathy the only instinct we have to look beyond the purely selfish and consider the well-being of others. As such, it is our way of moving beyond the unforgiving part of nature. This is better for most of us, as many would not survive in our natural state. Even without resorting to empathy for the plight of others, empathy makes sense from a purely selfish (enlightened self-interest) point of view.

On a connected note, empathy is what allows society to function. Without it all would attempt to meet their own needs and people could not draw together to provide the safety net for the less fortunate. I do not argue that society is always a positive thing, but for the majority whose lives it has enriched should see this as a point in favour of empathy.

An important stage in the development of children is them learning to see things from the point of view of others. As they learn and agree to compromise, we consider them as maturing. Most things done in childhood, now considered unconscionable, were in large part due to a lack of empathy. Through the idea of 'maturing' we show how it is instinctive that empathy is a laudable quality.

How far should empathy go?

This is a complicated question. Most would agree that it is good to consider the opinions of others, but many would say that they must come second to moral rules. For example, this would be used as an argument for banning euthanasia, as the moral rule to not kill would override the wishes of the person to be killed. Since the argument here is that empathy must be the basis for moral rules, these limits need to be clarified. If morality allows too much acceptance of other people's desires, it would be unable to condemn them for anything.

The answer here is not too difficult, however. If empathy is the foundation, then empathy should only go as far as actions which do not themselves violate empathy. The reason that empathy would not generally be used to argue against punishing people for crimes is that to do so would aid crime itself, which is (at least in the conception to be argued later) a violation of empathy. Therefore, as long as the punishment does not outweigh the violation so as to itself violate empathy, it is compatible with this ethical system.

This can of course get rather complicated. Let us take an example where a policeman catches and arrests a burglar in the act. However, the burglar's accomplice sees this and attacks the policeman. How should this be assessed? The burglar's act was a clear violation of empathy for the property owner. Thus empathy is not necessary for his actions. The policeman clearly violated his wishes by arresting him, but this is not a violation of empathy as he, like us, need not have empathy for the burglar's activities. Furthermore, the policeman's actions further empathy overall, by encouraging empathy for people's property rights. We empathise with the policemans's actions. We do not empathise with the accomplice, however, as his actions violate the empathy deserving to the policeman.

So there we have two tests appearing. Does the action violate empathy in the individual case? Does the action improve or damage empathy overall? In theory, violations of empathy in the specific case might be justified by the overall good done to empathy. This could potentially be used as an excuse for assassinating tyrants like Hitler for the common good (although it moght well be argued that the punishment was proportionate to the crime in line with empathy). It might also be used to allow for the killing of an innocent (for example where a terrorist threatens the lives of many if the life is not taken). However, if this line is to be taken, then it should only be employed with reluctance, as we ignore the individual at our peril.

Beyond the question of how far empathy should go, two types of empathy should be distinguished here. They are what I shall call transplantative and appreciative empathy. Transplantative empathy is where one imagines oneself in the other's position. This seems to be the best understanding of the saying "Put yourself in their shoes". It is the easier type of empathy, requiring just the imagination to imagine your own situation being different. When one says "There but for the grace of God go I..." one means that one could easily have been in that situation oneself, an example of transplantative empathy.

Appreciative empathy is where, rather than imagining oneself in the other's position, one imagines oneself as the other person. This involves imagining being a different self, and is thus more difficult. It means accepting different characteristics as equally valid. It is argued that this is the better type of empathy. Transplantative empathy alone is not sufficient in many cases. Purely transplantative empathy would deny even physical differences. This is clearly ridiculous when it comes to, for example, appreciating problems that only the opposite gender face.

Furthermore, on racial issues transplantative empathy would certainly favour equality, but a type of equality where problems arising from differences are ignored rather than helped. Particularly in the USA there is an argument over 'affirmative action', positive discrimination in favour of minorites. Transplantative empathy would give everyone an equal chance, in not placing barriers in the way of others, treating them just as if one was "in their shoes". However, it takes appreciative empathy to understand that there are still problems of discrimination from the less enlightened, which mean that sometimes it is necessary to give minorities an advantage to even out the disadvantage. It is this appreciation of problems which we would not face even if "in the other's shoes" which is the root of appreciative empathy. It is superior because it is more realistic, and serves the base purpose of empathy better: Most of us would prefer empathy based on how the situation is to us, rather than how it would be to the one empathising. Appreciative empathy merely means recognising this preference in others.

It is hoped that this has given an insight into my reasons for using empathy as the basis of my moral system, and the type of empathy I mean: Appreciative empathy which extends as far as actions which do not themselves violate empathy.

Good News

2005-04-06T14:45:00.000+01:00

A couple of pieces of good news today:

I found out that Publius has started blogging again, and judging from his posts so far, he is on fine form.

On a more personal note, I got the results back for my Law Moderations (first year exams at Oxford) and I got a Distinction, the highest grade I can get for them. Needless to say I am pleased! I know I said this wasn't a personal blog, but this news was relevant enough to the topics covered to justify the exception!

Moral Disagreement And Block Theory

2005-03-27T19:16:00.000+01:00

This post is about my conception of how moral arguments can have meaning, despite the differing moral systems of those arguing. To explore this I will use my conception of Block Theory - that each belief we have is a 'block' resting on others, right down to the fundamental block or blocks.

Block Theory is not my idea. Maybe I have given it a new name or conceptualised it in a slightly more worldly way, but the ideas are generally not new. It has long been argued that our moral beliefs can be argued down to their philosophical underpinnings, beyond which there can be no further regression. At the end there are always fundamentals beyond which we cannot go. It can be seen as similar to mathematics, where there are undisputed axioms upon which the rest is predicated. The science of mathematics is to build it up from these (seven, I believe) axioms, into a comprehensive system.

Something similar can be done with morality. Of course, most of us have no clue of our hierarchy of beliefs. Rather than building them up from the basics, we often start with a large collection of beliefs and then are forced to reason backwards from them to the fundamental principles. It is fine to say that "killing is wrong" but then one day one might come across a situation where they do not see killing as wrong (like perhaps in times of war, to relieve extreme suffering or to punish for horrendous crimes - different people have different exceptions to the general rule). It is then that they are likely to reflect that "killing is wrong" is not in fact an axiom, but that behind it lies a deeper rule that is actually only engaged in certain cases, like the paradigm case of cold-blooded murder.

Digging deeper may cause one to re-evaluate their beliefs, as it may transpire that certain among them are contradictory. Seeking out an overriding rule can help to iron out contradictions. For me at least, the process of finding what is moral is mostly about considering the overriding rules, but since these were discovered from specific beliefs, if a rule I use gives a consequence I cannot sanction in certain circumstances, I am likely to re-evaluate the rule. The more uncertainty there is in a case, the more likely I am to allow my rules and principles override my gut feelings. However if, for example, a principle of mine allowed genocide, then I would work to define a better principle!

The practical application of Block Theory comes about during moral disagreements and arguments. Under the simple idea of fundamental axioms, two people with differing axioms will have great difficulty convincing each other of moral ideas. They would seem to be operating on completely different wavelengths. However, Block Theory allows that one can get around a difference in fundamentals by finding a shared block somewhere along the chain upon which they can both agree. For example, my fundamental block is Empathy, whereas another's may be the Word Of God. Let's say that the issue is gay marriage, and I am in favour (which I am, but that's for another post) and the other is against. There are many ways to approach such an argument using the idea of Block Theory.

One that is clearly available even if we do not use shared blocks, is the idea of arguing using the opponent's system, or "fighting on their turf." Here one argues based on the opponent's fundamental blocks. One must challenge the way blocks have been built up on top of them by finding weak connections. I might challenge my opponent that the Bible verses relied upon are not valid anymore, and so are not really the word of God. I may even argue that the Bible is not a reliable guide to the word of God at all. In this way, one can often make an argument in support of one's position based on their foundations. However, there are major problems with it. If no shared blocks are engaged, by necessity one must ignore one's own moral reasoning and simply use whichever reasoning is necessary to reach the desired conclusion. The end is used to justify the means. It is less likely that the reasoning used will be the best possible, as it is not used (in any sense) to discover the answer, but to jusitify a pre-existing one. There is no reason to think that different fundamentals should lead to the same conclusion.

Some of the problems of this are lightened if we start to use shared blocks. I might argue that Empathy is in fact one of the blocks necessitated by the fundamental of the Word Of God, based on certain things said by Jesus. However, even if this is accepted this might not be enough. The further down a principle lies, the more likely that it will override principles higher up. Empathy may well just be taken as the default position should the Word Of God not dictate otherwise. However, this is not the end of it. I could take the block of Compassion, which can be extrapolated from both Empathy and the Word of God, and then argue based on that. Again I would be arguing about what blocks should be built upon that. However, since it is a shared block, in theory both parties should be looking for the most logical blocks to build upon it. Therefore, both would have the same starting point and would then just argue the merits of their own interpretations. This would seem like a much more satisfactory and intellectually consistent method of morally debating.

I believe that it is in this way, by finding the similarities between ethical systems, we can have more meaningful and more worthwhile moral arguments. While there will not always be shared blocks, more often than not this approach will at least be helpful in some respects. In the next post, I will look more closely at the fundamental block of my ethical system, Empathy.

Relativism - The Lack Of Absolutes

2005-03-26T11:58:00.000Z

In the previous post it was concluded that we can only judge moral statements as correct or incorrect if people understand them as refering to a universal moral standard, and if such a universal moral standard does in fact exist. Here it will be argued that such a standard does not exist, or if it does that it is far beyond us to recognise it. The basic way to see this is to question how there could be such thing as an absolute moral standard. How could something qualify? It would need authority. But how could something have the authority to make ethical rules binding? By nature, this will be a negative argument. It is notoriously difficult to prove that something does not exist. Therefore, I shall try to dismiss some of the main arguments that such an authority exist.

A lot of the time, people look to the rules of God as the absolute rules. As an atheist, obviously this does not work for me. However, I would argue that it does not make sense for anyone of whatever religion. This is not an argument that there is no god. It is an argument that even if there is a god, there is no reason why we should look to this god to tell us what is right and wrong. What authority would any conceivable god have to tell us what is right?

One might argue that God is omniscient, therefore he is in the best position to know what is right and wrong. While this seems reasonable, what this does is shift the question from God's rules to rules independent of God, towards which He is merely a guide. If this were accepted, then there would still be the question of trusting God to be this guide. However, more importantly the standards would not come from God, but from elsewhere, and so the criticisms of other sources of these standards can be used.

Other arguments posit God as the actual source of these standards. Therefore, the question shifts back to authority. Simply being powerful is not enough to give standards any weight in a pure, ethical world. It may be worth obeying the man in control for reasons of self-preservation, but on a pure ethical level there must be better reasons for the standards to be absolute. Equally the possibility of heaven and hell as reward and punishment do not in themselves give moral weight to the commands.

So on to the most persuasive reason why God might be able to set absolute standards. He might be able to at least set standards universal to the Universe because He is supposed to have created the Universe. The argument is that as Creator, he is entitled to the respect and obedience of His creations, and this entitlement creates an obligation of universal, absolute rules in accordance with His will. Is this true?

What is generally assumed in these cases is that the maker does have such an entitlement. The first problem with this is that this does not seem to follow from any general pattern. It can be said that a mother 'makes' her baby in some sense. Does that give her the right to decide in any way what it is right for the child to do? If she ordered him or her to kill, would there be a moral imperative to do so? The principle would seem ridiculous here. Equally well if a man created a robot programmed to understand orders, then ordered it to kill, would it be right for it to do so? The idea that making something means that we also create a moral system for it seems antithetical to the very universal system originally posited, as well as relativist principles. The maker principle seems only to apply to God, and there seems to be no good reason for this.

There are of course other reasons why one may wish to obey what one believes to be the will of God, including gratitude and reverence along with self-interest (with the possibility of Heaven). These would however not be in themselves reasons why God's commands would be moral absolutes, just reasons to use them in shaping what one finds good. One could of course argue that labeling an action as good is refering to God's stance on the issue. While in a way this answers the language argument, it does so by admitting that the standard to which it refers has no claim to be a universal truth. "Good" as "meeting God's standards" is no different ethically to "meeting Bob's standards" unless it can be shown that there is a particular moral imperative to do the former. Furthermore, the near-infinite number of interpretations of God's standards ensure that it does not provide a universal conception of good.

There are other possible sources whoch have been suggested as creating absolute values. The nature of the Universe (whether or not it was created) is one. It has been suggested that the Universe contains within it clear rules as to how to behave. However, there seems to be no scientific test for such standards. Often people will use selective statements about animal behaviour to suggest that such standards exist in the animal world. Firstly, they often conveniently ignore contrary findings (they will point to species which mate for life as reason for monogamy while ignoring the many which do not). Secondly, they make the mistake of imagining that what is defines what should be. If this were to be accepted, then practices which once were widespread (like slavery) would have to then be considered right, and now no longer right. This denies the very universal and unchanging nature of right and wrong which were posited.

A more specialised view of what is right stemming from nature centres on humanity, and specifically the views of the conscience. There are myriad problems with drawing any universals from the extremely varying values gleaned from the conscience, especially as it is largely influenced by culture, and shaped by evolution favouring groups. But beyond all this, there seems to be no reason why the conscience should have the authority to dictate universal standards. If instead of what we consider the conscience, we had some malevolent voice calling us to evil, it would clearly not make that right. At best the conscience could guide us to prociples created elsewhere, and that again leads to problems of authority.

In the end, authority is a human concept. Furthermore, while clearly whatever posits universal standards requires authority to do so for legitimacy, authority itself is merely a status given to one which allows him or her certain rights to do things and creates obligations on others to do other things. Rights and obligations are in themselves creations of morality, so in the end there is a circularity to the concepts. Morality is only underpinned by morality, perhaps underpinned by the acceptance of the people. In the end therefore, morality is dependant on the understanding of the people, and that can only mean relativism.

What should be seen therefore is that relativism is simply the acknowledgement that we cannot appeal to some absolute outside of human nature to justify our moral beliefs. It does not mean that we cannot have such beliefs. In the next post, I will consider what happens when different moral systems clash, and how such disputes can be argued meaningfully.

Relativism - The Argument From Language

2005-03-25T09:01:00.000Z

What better way to start than on morality? It seems that, as the study of what one should and should not do, it would make sense to at least have the basics sorted before we look at what should and should not be done in law and politics. After all, normative descriptions of them by their nature require some understanding of morality, right?

Firstly, I'm a relativist. And no, contrary to popular belief that does not mean that I have no morals. If I did, I doubt that I would bother with this blog, just to say "do whatever you feel like, it doesn't matter either way." For me, relativism is a belief of fact. I keep my normative views separate. What this means, in essence, is that I don't believe that there are objective, absolute, universal standards of good and evil. Neverthless, I have my own standards, and attempt to convince people of them in order to bring other people in line with them.

To an extent this is a mix of the views of A J Ayer and R M Hare. For them, making an ethical statement like 'murder is wrong' is not actually a truth claim, but a very personal thing. For the former it was an emotive statement, showing disdain for the action of murder. For the latter it was more than this, it was a universal prescription, insisting that everyone follow it. Thus, it would order that no-one murders. The opposing view is of course that there is a universal standard of right and wrong, and that when one makes an ethical statement its validity can be judged by this standard. Thus (probably) "murder is wrong" is a correct moral statement.

So how can I argue against that? Well firstly, the argument is from language. Language is something developed as a means of communication. It conveys information, and does so by shared meanings. Thus if I direct someone to a sheep, the other can rely on the advice based on the shared conceptions of directions and sheep. Language therefore, is based on people's understandings. This leads to a problem. If for example I talk about "an ear," do I mean a human ear, or an ear of corn? Well, I almost certainly mean something, probably one of those things. What I mean is based on what I understand myself to mean. That is the closest we can come to objective understanding of words. They mean what the person saying them meant. So "good" and "evil" will only have the meanings given to them by the person saying them. Just as it would not make sense to call me wrong if I mean "ear of corn" as opposed to "human ear," it does not make sense to call me wrong for a different understanding of "good."

Even if I say "sheep" to describe what most of us call the ear, we can only judge it wrong based on the community standard. We cannot say objectively that there is a universal standard tying the ear to the word "ear," especially as then all other languages would be wrong! Equally, the best we can do is condemn a conception of "good" as being contrary to what is widely understood. That's still relativist, but relative to the culture as opposed to the individual, so that each individual subjects his or her views to those of the group.

That is fine as far as language goes. But what if, as the counter-argument would go, when we make moral statements we are not merely stating our own views, but refering to a universal standard? What if the widely-held conception of moral terms was in regard to this standard? If that were true then we would indeed be making a fact claim. Of course, this requires people to conceive of such a standard, and further for there to be one. Even if the former were true, the latter would be more difficult. If it were true, then the meaning behind the words would refer to something which was fixed regardless of words. It would not be enough merely that each individual had a conception of absolute good, as the meaning would still change with the individual's conception. It requires that there actually is such a set of absolutes. In the next post it will be argued that this view is untenable.

Introduction

2005-03-25T07:11:00.000Z

So this will be my first post. I'd just like to briefly introduce the purpose of this weblog, since that seems the best introduction possible!

I suppose you could say that law, politics and morality are three of my great interests. I have views on each one which I will put forward here. I do not claim to be unbiased, in that I have opinions which are at times strong. I will certainly in many cases be trying to persuade people of a point of view, although sometimes I may just wish to ask for consideration of a matter. Clearly, I do not have all the answers. Personally, I never wish to feel that I do have all the answers, because I think that trying to figure out for oneself what is right is part of what makes us human. With that in mind, I welcome reasoned criticism, and may well modify my views - I certainly have in the past, and it is quite probably that I will in the future.

I suppose that one might reasonably ask what are my qualifications for discussing these topics, and it is true that they are not the most obvious.
For law, I am in the first year ofstudying for a degree in Law (Jurisprudence - BA) at Oxford University, UK. I intend to qualify and become a barrister specialising in human rights law.
For politics, I am a member of the Liberal Democrat party. I follow the political situation here in the UK, and that in the USA (with some despair I might add). Upon becoming a barrister, I intend to make my way into politics, hopefully becoming an MP and (in my ideal world) leading the Lib Dems to a sterling victory in the elections!
For morality, I studied Religious Studies at A Level, which was split into Philosophy and Ethics. The latter taught me about some of the main school of thought on morals and ethics. More importantly, perhaps, I constantly strive to find what is, to me, right, so that I can endeavour to do so. Not that I am perfect, far from it, but it is much easier to shoot at the goalposts if you at least know where they are!

I would like to mention at this point Legal Fiction, a blog for which I have much admiration. Unfortunately it looks like the writer, Publius, may well have blogged his last. It is a great shame, and I would recommend reading through some of his archives, as he has made some excellent points with a legal expertise far, far in excess of my own. I did not always agree with his opinions, but I always had respect for the methodology. In any case, while Publius focussed on the USA, any comments on current events here will often consider the UK. However, I intend generally to look at thinks from a point of view somewhat more abstracted and timeless. I do not usually have the time to catch up on all the latest stories.

So the introduction is already long enough. The last point I will make is that I will generally not refer to my life (it is not excessively interesting!) but certain things with a baring on the subject matter here may crop up from time to time. Now I shall move on to making my first post!