Author Archive for Ben Samuel Nelson

So blame the joke

So recently my alma mater’s student paper, The Gazette, published their annual spoof issue. One satirical article, titled “Labia Majora Carnage”, included a mock-scene which involved the rape of a local feminist-activist by the chief of police. Many readers interpreted the passage to be trivializing rape, if not promoting it. It caught a lot of flak from students, alumni, and staff, and drew national media attention.

The editors wrote two follow-ups. The first dismissed the outrage with hoots and catcalls. When it became obvious that the condemnations would not subside (”What?! Rape isn’t teh funney??!!”), they wrote another follow-up which expressed something sort of like regret. They claimed that they were attempting to satirize feminist stereotypes, not feminists, and certainly not rape. Rushing to the defence of the Gazette were those who felt that the article was just a joke, and ought to be treated as such; and, failing that, those who try to fudge interpretations at the edge of plausibility (i.e., “that wasn’t rape”, or “they were obviously misunderstood”). Many have suggested that too much condemnation is overkill, and will strangle free speech and perhaps even ruin the career prospects of those involved.

However, the “trivialization” interpretation gained enough political momentum to earn strong words of condemnation from the University’s president, Paul Davenport, and from the London chief-of-police. They are now setting up review-boards, which (some worry) would PC-ify the paper.

I’ve read the thing a number of times. And for what it’s worth, I also condemn the article, despite the fact that I know (and like) many of the people who work at the Gazette. The article was, at best, poorly written; at worst, an attack peice against an activist and vocal critic of the Gazette, and — yes — a trivialization of rape.

One gets the sense that the satirists — some of them English majors — don’t “get” that the target of a satire needs to be clear in order for it to be an effective peice of writing. (For scorchingly effective satire, see the English spoof of journalism, Brasseye.) But the article wasn’t clearly attacking stereotypes: actually, quite the opposite. No matter how much context you inject into your reading of the article, it only comes off as a hit peice on specific people. And when professed intentions don’t match up with the content of some peice, you can only roll your eyes and give up wasting any more time trying to understand who meant what: it’s a mug’s game. (If I wanted to waste my time, I’d go and try to beat the underwater level of Nintendo’s Teenage Mutant Ninja Turtles. I don’t need help in this department.)

As far as I’m concerned, the moral status of the article is obvious. It sucks. The writer sucks. The paper sucks. Suck, suck, suck. The only pressing question is, “What level of response is appropriate?”. The answer to the question, whatever it may be, is abstract enough that it might be able to apply to greater issues, and go beyond this particular situation — be it to Imus in the morning, or to contemporary American political discourse.

As it happens, I have come to certain conclusions. It seems to me that a reasonable person, once they have reflected upon certain issues, must arrive at the following:

It has only been seven years, but already I am sick of the twenty-first century.

Let me explain by reviewing the people involved, and try to apply Kohlberg’s developmental model of moral reasoning.

Western is known as a “party-school”, yet it also has a collegial sort of atmosphere. That’s sort of why I went there. Socially, I’m a block of ice, and it’s nice to be around nice people. If it were the kind of school where rules tied down any kind of dissent or free-thinking, I would have gone elsewhere. Advocates of political correctness, to the extent that they drown us in rules that are well-meaning but mostly inane, create a sense of fatalism and moral anxiety that turn off brains. Still, Lawrence Kohlberg’s account of moral reasoning would peg such persons at Stage Three. The stage three moralist is someone who follows the Golden Rule to the letter, whose overriding maxim is to be nice, to behave in a good way.

That having been said, it is also a university with a right-wing underculture — usually not close enough to the surface to be noticed. But one venue where this underculture has sprung up over the years, quite noticeably, was in the Gazette. The long line of editors-in-chief have been at the outermost edge of sanity, with as much moral sensibility as Pat Robertson or Trey Parker. Whenever a joke is challenged for being morally sociopathic, these people cry out “free speech”. Some of them try to defend a vulgarized moral deontology, claiming that the content of speech is (or ought to be) immune from any kind of moral condemnation. This lunatic fringe, on Kohlberg’s scale, would be stage two. The stage two moralist views morality in terms of warring tribes who are out to pursue their own ends. For them, any overriding notions of improving the wellbeing of persons, etc., is morally piffle.

Stage four is a system-level perspective. It is, perhaps, the closest thing to utilitarianism that you will find in Kohlberg’s theory. (As it happens, it is also the last stage of the theory that has any empirical bones to it.) But there is a dearth of stage four voices in the discussion. And when they do show up, they are given the John Kerry treatment: nuanced and measured argument is regarded as a flip-floppy bag of comprimises. To the usual suspects, the stage-four moralist is like a cat stuck in Schrodinger’s box: unpredictable, on-again, off-again.

This, I think, is unfortunate. For the question becomes, “How can a joke be condemned?”. From a system-level view, it is at least clear what the bad answers are.

The appeal to free speech is a irrelevant so long as you’re dealing with the relationship between people with people, and not talking about institutions. Independent moral voices condemn jokes all the time for crossing the line. And it’s expected. Hell, that’s what gives the jokes an edge in the first place: most humor is about failure, mistakes, errors. (Even regardless of the norm, even if you come from the “nothing is sacred” school of comedy — the kind that says, “hey, if I want to use rape/the Holocaust/incest/etc. as a punchline in my joke, then that’s okay” — well, that’s one thing. Another thing is actually making victims of rape/Holocaust/incest/etc. the target. One is morally ambiguous, and the other is clearly wrong. And it doesn’t take much effort on behalf of chuckleheads to admit it.)

I mean, there are surely levels of blameworthiness, where each level involves punishments that are more severe than the last. A person may be accountable on some levels and not on others. Restriction upon freedom of speech, at least as it is typically used and morally salient, deals with restrictions upon free agents by political institution(s). Those among us with a feeling for non-arbitrariness may widen the “protected speech” net to include consideration of restrictions by social and economic institutions. The political restriction of free speech (or lack of intervention in favor of free speech by an institution) seems to be more blameworthy than the restriction by social institutions: it demands severe consequences when that trust is violated. However, social institutions are still blameworthy to some degree — in this case, the Gazette. But crucially, you have to care about the difference between social and political institutions in order to be able to appreciate that something really can be condemned, and how we have the moral room to react, and to appreciate that there are limits to the amount of blame you can make before you become tiresome. (A political institution is that which is empowered by a certain set of people with a common trust that recognizes the institution’s right to coercion; a social institution is that which is empowered by trust alone.)

This is vital when trying to figure out what the upper limit of condemnation is supposed to be. Political condemnation goes to lengths that social condemnation doesn’t. The paper needs independence. It needs to be student-run. I don’t know whether or not review-boards will help that along, or just obscure the underlying point — it depends on how the suggestion is implemented. I suspect, though, that something like clear and sensible editorial judgment would make it moot. I hope that the demonstration that the editors have once again failed to keep the trust of the people who fund them — and pay them — is at least enough to give them pause. Or maybe next year the whole cycle will just repeat itself. Meh.

So, how much condemnation does this thing deserve? I’d like to see an apology. I’d also like to see the editors to gain a sense of reason, and be willing to think things through a bit more. That would suffice. Anything that moves beyond the fundamental issue, the failure of trust, seems to be excessive.

But so long as the discussion is bogged down by the usual suspects, the Chuckleheads versus the Fatalists, we’re not going to see anything, any genuine moral growth, as a culture, as a species, as an anything. This is my stage-two moment: these are the warring tribes I care about.

Anyway. Instead, I expect that, as per usual, nuance will be sacrificed and replaced with characatures, South Park impressions (lol, rabble, lolomg), censorship and review boards of the Gazette, and (perhaps worst of all), the vague cynicism of people like me who know that everything is going terribly wrong but usually don’t have the words to express why.

Only seven years. And by all indications, this is how it will be for the next 93.

So whatever. I’ll be playing Ninja Turtles if you need me.

Facebook and Information Ethics

Like most people interested in social science, I am a social misfit. That is, I have various and sundry habits that upset a certain type of person: I slurp my soup, swear publically, really don’t like ironing my pants, and sometimes I even wear a horrible moustache. These are all forgivable sins, I hope. But for someone like me, it never hurts to have a backup: somewhere where I could go and socialize without my more autistic tendencies getting in the way. Facebook seemed like a logical choice.

I suppose it wasn’t.

First, there are certain terms used in legal contracts that annul the entire point of a contract in the first place. A contract is, by necessity, temporary. For the contract is nothing more than the expression of two or more wills being expressed to make a promise, and to bind themselves with some pre-established penalty. After the will breaks, and the penalties laid out, there is nothing left of the contract. That is, either party may plausibly fail to uphold the contract, and after penalties are laid out, the contract can be renegotiated. So when we hear of words like “inviolable” or “irrevocable”, it is smoke and mirrors: no such things may be claimed by anyone in a genuine contract. When they are asserted, i.e., by the state over its citizens, it is a product of the eclectic bases of law which may or may not have anything to do with social contracts. And the force applied by the state is a special case; nothing “irrevocable” may be claimed by private entities, unless the meaning is, “irrevocable without penalty”.

Facebook’s terms of service tell us that “By posting User Content to any part of the Site, you automatically grant, and you represent and warrant that you have the right to grant, to the Company an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose on or in connection with the Site or the promotion thereof, to prepare derivative works of, or incorporate into other works, such User Content, and to grant and authorize sublicenses of the foregoing.” Luckily, they weren’t all that serious about use of the word “irrevocable”, since the removal of content leads to the expiry of the license. One wonders, though, what the point of the word may be, especially when conjoined with fun Highlander adjectives like “perpetual”.

My second point requires some priming. Nobody here needs to be reminded that the field of information ethics is defined, in part, by its emphasis upon the importance of privacy. That is, at minimum, a person should be able to have a say how their personal information is shared. There is a distinction, of course, between private information and intellectual property: demographic details are ethically different from music and art, in that art is by definition the stuff that has been intended to be made public, while personal information cannot be presumed to be. With this distinction follows a few ethical implications: while one may ethically share art (in the non-profit sense) without penalty — since that is necessarily in line with its purpose as art — one may not share personal information unless informed consent has been given.

The clauses ask us to re-examine the distinction between art and personal information to see if it hasn’t gone up and dissapeared. No, all we have is “User Content”, which is implied to be “the photos, profiles, messages, notes, text, information, music, video, advertisements and other content that you upload, publish or display (hereinafter, “post”) on or through the Service or the Site, or transmit to or share with other Users (collectively the “User Content”)”. We do not have, here, two categories — one having to do with who I am as a person, the other to do with my silly pictures of my fat cats and failed attempts at flirting online. There is a lumpencategory, where the two run together. Evidently, they claim the right to conflate fiction and reality, and then give that to whoever they want — protests to the contrary notwithstanding. In reassuring language, we are told that Facebook won’t do this or that. “Legally can’t” is absent entirely, not even suitably and reasonably restricted to the few intelligible domains.

I expect this is all par for the course. Certainly the same sorts of thing have been alleged against Deviant Art. My place of work produces a disincentive for innovation by claiming for itself the legal right to any improvements I personally make.

The only solution is to become a nonperson, and keep my art to myself.

Habermas, Wood: law as conversation

Matt Wood argues:

After just reading two articles dealing with Jurgen Habermas’s theory of communicative action, I think I can take a tentative step towards fleshing out my arguments for the role of dialogue in the definition of law. According to this helpful paper, which summarizes Habermas’s theory of communicative action (and quotes from his book The Theory of Communicative Action):

“What Habermas attempts is to identify and reconstruct ‘the rational internal structure of processes of reaching understanding’ in terms of ‘the validity claims of propositional truth, normative rightness, and sincerity or authenticity’: ‘the concept of rationally motivated agreement, that is, one based on the intersubjective recognition of criticizable validity claims’; and ‘the concept of reaching understanding as the cooperative negotiation of common definitions of the situation.’”

As contrasted with instrumental rationality, Habermas proposes the ubiquity (and primacy) of “communicative rationality”, which in his own words “carries with it connotations based ultimately on the central experience of the unconstrained, unifying, consensus bringing force of argumentative speech, in which different participants overcome their merely subjective views and, owing to the mutuality of rationally motivated convictions, assure themselves of the unity of the objective world and the intersubjectivity of their lifeworld.” Rationality itself, according to this theory, turns on the ability of a speaker to justify with convincing grounds or reasons the validity of his communicative statements, dialogically – in the course of conversation – and hence intersubjectively . . . in other words, through persuasion. This conception of rationality looks to be grounded in a consensus theory of truth, and Habermas himself appears to concede as much: “The condition for the truth of statements is the potential agreement of everyone else.” (While I have doubts about how far this truth-criteria can be pushed in the context of scientific discourse, I believe it touches the core nature of “political truths”, such as questions about the distribution of “power”.)

Habermas links communicative rationality to a theory of argumentation, in which “[a]rgumentation refers to ‘the type of speech in which participants thematize the contested validity [claims of an expression] and attempt to vindicate or criticize them through argument,’ and an ‘argument contains reasons or grounds that are connected in a systematic way with the validity of a claim of a problematic expression.’ … [A]rgumentation aims to produce cogent arguments, which bring about intersubjective recognition of validity claims and transforms opinion into knowledge. … Each aspect [of argumentation] can be respectively said to aim at ‘the assent of a universal audience,’ ‘the attainment of a rationally motivated agreement,’ and ‘ the discursive redemption of a validity claim.’ … Thus, for Habermas, the rationality of social action is and should be assessed in relation to the validity claims [whose acceptance prompted such action] and the possibility of reaching agreement in critical discourse, and thus rationality is conceived as inherent in communicative practice which is intrinsically oriented towards consensus.”

Habermas identifies three types of validity claims that are at least implicit in every communicative expression: claims of propositional truth, claims of normative rightness, and claims to sincerity. Each of these types can be “thematized” by an expression (by which I understand Habermas to mean ‘made more cognitively salient’, or ‘emphasized’), even though all are actually present, giving rise to a set of more-or-less distinctive speech acts: constatives, regulatives, and expressives, respectively. (It should be noted that Habermas includes a larger number of speech acts in his own classificatory scheme.)

Lawrence Solum has written (Freedom of Communicative Action, 83 Nw.U.L.Rev. 54 (1989)) that “[u]nder ordinary circumstances, the participants will share a common set of norms or facts to which appeal may be made in the course of argumentative discourse. Where there is disagreement about specific facts or norms, the participants may still agree on the appropriate standards or criteria by which controversial norms or facts may be judged. … In some situations, however, even the standards or criteria of truth and rightness are the subject of controversy; in such cases the continuation of the attempt to reach agreement demands a move to theoretic discourse. Rational argumentation, thus, [as Habermas puts it] ‘can be conceived as a reflective continuation, with different means, of [communicative] action oriented to reaching understanding.’” Solum describes this overall process as “discursive will formation.”

I’d like to propose that “communicative action” – a process whereby validity claims are raised in speech, discursively defended in argument, and accepted or rejected as a basis for action – underlies the phenomenon of “law.” In fact, I believe “law” can be thought of as a special case of communicative action, wherein normative validity claims are justified by discursive reference to the actions (ultimately speech) of a norm-promulgating authority.

First, notice the extent to which speech underlies the effectuation of “law.” In the American system of government, a subset of the population known as Congress-people discuss amongst themselves a new norm-proposal. A formal vote is taken (itself a communicative act, rooted in assessments of the normative validity of the proposal on non-positivist grounds) and the approved norm is then written and conveyed to an authorized publisher, who records the norm in text. Copies are manufactured and distributed to judges, lawyers, and other interested parties, including the public. Each reading of the text completes an act of communication. When a violation of the norm is alleged, this text is invoked by one private party in a specialized discourse-forum known as a court. Arguments for action are conveyed to a judge by the laywers for each party (who have learned the facts of the case from their clients, and the law from published sources), and each lawyer invokes Congressional, judicial, or Constitutional speech (i.e., officially promulgated norms) as the grounds for or against the validity claims of “rightness” implicit in their requested rulings. The judge assesses the persuasiveness of the grounds for the competing validity claims and reaches a conclusion, which he communicates to the parties and larger community in the form of an “opinion”. Depending on the behavior of the losing party, this judicial speech can employed as the grounds for the validity claims implicit in requests, communicated to enforcement authorities, for the taking of enforcement action. The dialogic chain continues on, from chief of police to beat officer, from officer to officer, from officer to arrestee, from officer to jail guard, from officer to judge hearing habeus corpus petition, on and on… each link a case of conversation, of dialogue, in which repeated efforts to induce action by listeners is pursued by offering grounds to support the implicit (or explicit) normative validity of action, typically by reference to legal speech, itself typically in the form of texts.

To my mind, the importance of law as a socially ordering force lies in the ability of its *invocation in dialogue* to structure individual behavior (and I hope to have by now impressed on you the fundamental, utterly central role of speech in generating these effects). But I don’t think the truly remarkable feature of law lies in the propositional validity claims which are but one facet of the expressions that comprise links in the institutional ‘chain of dialogues’ that generate social order out of legal pronouncements (i.e., whether the statement “Congress passed a law saying X” is true) – although the validity of these propositions is surely a necessary condition for the success of “law.” Instead, it’s the implicit normative validity claims underwriting persuasion along this chain – the claims to a proposed action’s rightness – and their discursive justifications, that are most distinctive. In general, the mere fact that a governmental authority promulgated a norm is taken as *sufficient ground* for acceptance of a normative validity claim, and hence the promulgated norm, as a basis for action. Herein lies what I’ve been calling the ‘habit of legitimacy recognition.’ I think this simple dispositional response and its stimulation in the course of dialogue (through, for example, the invocation of positivist grounds to justify normative validity claims) is the tissue that holds the entire apparatus of state together. This is the “trust”, the voluntary acquiescence to state power, that works in place of the threat of violence as a means of organizing society and its many power-relationships. The unquestioned legitimacy of the state and its law is necessary for the efficient cooperation of so many actors; imagine the difficulty of governing if the legitimacy of the state had to be re-argued every time a demand was made in its name!

But this sedimented, automatic habit of legitimacy-recognition can be destabilized. Consistent with the habit’s important role in gilding grounds for the justification of normative validity claims, individual speakers may contemplate such claims with the help of their *entire* array of tools of normative evaluation, including moral principles. (Hence my use of the term “coherence theory of law” above.) As the moral propriety of a legal norm decreases, we might expect moral grounds for rejection of the normative validity of the legal norm (defined as a speech act to which the propositional validity claim of promulgation by a legal authority can be justified discursively) to overwhelm the sufficiency of “positivist grounds” for the acceptance of its normative validity. At this point, the links in the dialogue-chain that I’ve described as the very essence of the state may begin to snap, as communicative action between dialogue participants results in either consensus away from action justified on positivist grounds (and towards action whose claim to normative validity is justified on alternative, perhaps moral grounds), or intractable disagreement (perhaps rooted in the varying intensity with which the persuasiveness of moral and positivist grounds are felt). And we can expect the apparatus of the state (through the individuated yet communicatively coordinated actions of its remaining constituent actors – i.e., those still persuaded to cooperate on positivist grounds) to resort to violence as an alternative to rational persuasion through communicative action as a means of enforcing obedience and thereby preserving the state. If a critical mass of individuals begins to reject the normative validity of positivist grounds as a basis for the acceptance of proposed action, we might expect the general imperative of coordinated action that underlies all human societies to result in the formation of replacement authorities (again, dialogically), whose acts of norm-promulgation are more acceptable as a ground for the acceptance of the normative validity claims underwriting voluntary obedience to the promulgated norms themselves. Herein lies the texture and mechanism of secession, civil war, and a host of other social phenomenon that signal the breakdown of a formerly unitary political society. The terms of political dialogue change – via the changed justifications, or grounds, offered to defend validity claims – and collective action re-orients, one conversation at a time.

There is a teleological sort of thing going on with the Habermassian argument. We’re in a territory where it is our goal to reach mutual understanding, and this goal acts as the foundation (er, ceiling?) of communicative rationality.

But it could be observed (in the fretful-philosopher tone) that this is epistemically even more fantastic than the problem of establishing that there is an external world. In the latter, we’re trying to justify to ourselves that the phenomena that we are inundated with are caused by something “real”. But in the former, we’re setting up a standard whose ultimate validity is based upon something so nebulous and auto-eroding as “mutual understanding”. At least with the external world, vulgar appearances don’t shut themselves off according to either my whims or to the world’s fancies. But people shut up all the time, leaving me in the dark about the state of their understandings — these “appearances” are spotty and intermittant. Also, we have some sort of idea about what the world “is”, since we have all kinds of physics at our disposal. The cues associated with mutual understanding are not quite so clear, and our understanding of understanding is spotty. This is manifest in the fact that people misunderstand while thinking they understand, and understand when they think they don’t. Both of these aporias suppose that there is mutual good will in a conversation (a bare minimum to postulate if we want to even be talking about the same thing Habermas presumably is). But good will alone is nevertheless insufficient for mutual understanding.

This is not to say that we have good reason to believe that there is never any mutual understanding. It is just to say that one doesn’t have to be a cynic to concede that mutual understanding is difficult to achieve, and so, we should be doubtful as to whether it is the dominant force which props up the law. It certainly doesn’t appear to be the way that courtrooms operate. Quite the opposite. When trying to justify to myself the “mutual understanding” doctrine of rationality, while still admitting that the stereotypical courtroom is “rational” without being in the same timezone as a pursuit of ‘mutual understanding’, I could only suppose that what we see in vulgar debate and informal logic is more properly called “the ghost of departed reason”. I can accept that, but I wonder if anyone else would. (Though admittedly my experience of the courtroom is limited to episodes of Matlock. Perhaps that is telling.)

That being said, I really *want* to believe in a Habermas-style argument. He has broken ground in places where Grice feared to tread. But experience suggests to me that a) communicative rationality must be based upon strategic or instrumental action in most cases, because the desirability of reaching “mutual understanding” has to be cultivated (and constantly renewed); and b) communicative action is, in principle, a kind of strategic action, since strategic action is mere goal-directed behavior, and the reaching of “mutual understanding” is a goal.

Moving on to Matt’s contribution: for him, law is a kind of communicative action “wherein normative validity claims are justified by discursive reference to the actions (ultimately speech) of a norm-promulgating authority.” The first thing I noticed is that this is a positivist’s account, so long as we construe “authority” in a strict sense of social authority. If we admit that things like “conscience” are sorts of “authorities”, then I suppose it wouldn’t be positivistic; but I’m not sure entirely what Matt’s intent was there, or how far he was willing to extend the scope of the claim. As he goes on to describe the “coherance theory of law”, we get less of a positivistic vibe, and more of an eclectic one; and this emphasis upon the social embeddedness of law is to the good, following the lead of Russell, (possibly) Dworkin, and modern blawgers like Jurisdynamics. But whatever moves are being made, they are surely not compatible with the Weberian formulation of law as what is justified by the authority. The ‘coherance’ story of how civil strife emerges is likely correct, but it is not clear how we have gotten from point A to point B, or whether the tools that have been laid out (namely the definition of law as given) are able to take us there.

The second thing — the centrality of meaning and communication to law — is surely preaching to the choir! I’m quite impressed by the symbolic interactionists, and they motivated my interest in philosophy of language. I think that’s likely true for the whole roster of L&S writers.

Did I ever mention how I don’t like social contract theory?

I would dispute the claim that law has been tacitly agreed to in anything like a social contract.

To see what I mean, picture in your mind the following scenario. A resident of a small, distant, isolated island of Tikopia is fishing off the coast as he does every year. Tikopia is ecologically self-sufficient, due to a wealth of forests, and these settlers and their descendents have been on the island for millenia. One day, the resident encounters a ship from a distant land. In speaking with the crew, the Tikopian finds out that this distant land is plagued by wood shortages. Although the Tikopian (and all his fellow Tikopians) is saddened to hear of these stories, he sees them as beyond his sphere of control, and as the affairs of another people. Nevertheless, the Tikopians embrace the newly arrived persons, and provide hospitality, and tell them that they are family. Time passes, and a year later, a battleship arrives to claim Tikopian lumber. The battleship crew claims that Tikopia is subject to the laws of the distant nation, and is obliged to help, since they are part of the same “family”.

Did the Tikopians tacitly commit themselves to forced aid? Of course not.

Now let’s take another story. Imagine the above scenario, sharing all of the same qualities, except substitute “Tikopia” with “early Western America”. Both are isolated and self-sufficient. Are the residents of the wild West beholden to help the residents of the distant East? We’d want to say “yes”, but why?

Whatever reason we give, I don’t think it will fully match the “tacit consent” view. There are certain irrelevant things that the Western case has but the Tikopian case lacks. Geographic continuity is one of them: you can arrive in the West by road, but it takes a lot more determination to arrive at Tikopia by sea. Also, arguably, the Native population would have posed a threat (at least in the minds of the settlers); but if this were objected, then it would still lead to a collapse of the doctrine of ‘tacit consent’, because then there would be a very clear and explicit consent.

Rather, the morally and legally relevant quality that the Western case has, but the Tikopian case seems to lack, is that the Western settlers had forewarning that their lives and property were subject to the will of the distant land before they occupied it. By contrast, the Tikopians declared only a tentative solidarity with the strangers after they (the Tikopians) had occupied the island for millenia.

But surely mere forewarning is not the same as “tacit consent”. If a man tells me that he is going to steal my pants on Tuesday, I have been forewarned; but if I don’t run away from him, that doesn’t mean that I’ve tacitly consented.

All this is just to point out that there are very serious problems with social contract theories. (And I take it for granted that natural law theories are in even worse shape.) Following Bertrand Russell (and others), I think that, if we are to be honest social scientists, we ought to admit, for better or worse, that law is to some degree a matter of violence. This is a third option which leaves behind both the aformentioned traditions, and goes back to Thrasymachus.

[I wrote the preceding as a reply to this post. I've decided to put it here, since it was a bit far from the topic at hand.]

Walking the highwire of “Charity”

It is common practice in university departments to evaluate texts by way of “the principle of charity”. Some formulations of this principle make for fantastic additions to our analytical toolkit(s). Other formulations are mere distractions, and they waste our time.

It is misleading in the first place to speak of one single principle of charity, as there are many. But there is one common property that all those “charity principles” share. They tell us that, if you come to a point in a text where the surface meaning equivocates, then you may make a decision: you can either refrain from making an interpretation, or you can interpret charitably. By advising us to interpret charitably, they tell us to give the author the benefit of the doubt, and attribute to them the most defensible interpretation of their utterance on the basis of the evidence.

So, for instance, when then-Prime Minister Margaret Thatcher said “I always treat other people’s money as if it were my own,” the most charitable reading would be to say that she meant something like, “I am careful with my own money, and in that sense I will be careful with the money of others”, and not, “ha-ha, I’ll spend all your money, taxpayers”. Or (more recently) when John Kerry made his joke about getting stuck in Iraq, he meant to speak against George W. Bush, not the troops. In cases where the author isn’t serious, is trying to be witty, or is attempting to illustrate a point by way of metaphor or other imperfect devices, then charity is well advised.

When the “charity” idea is well-formulated, it helps scholarship to the nth degree. A feast of fallacies in informal logic arise simply because the reader simply does not pay adequate attention to the words of a text, and interprets carelessly. For example, the “strawman” fallacy is the paradigmatic example of a failure of charity: the reader is so caught up in a desire to argue that they utterly misunderstand the position of their fellow conversant. Charity overrides this by telling us to listen carefully, and interpret in the strongest way.

One way to look at the relationship between charity and good scholarship, I think, is to examine the relationship between the law and virtuous conduct. In a society of the virtuous, there would be no need to have any laws. Similarly, in the society of good scholars, the principle of charity would never arise. For just as virtuous society would have no criminals, and thus no need for law, the society of good scholars would all listen to one another attentively, and thus not need to exercize charity.

But if “charity” is poorly formulated, then it actually hinders scholarship in a variety of monstrous and even anti-intellectual ways. (This trend applies to our analogy as well: a society which legislates virtue would be totalitarian.) So in the following, I’d like to quickly post two common errors associated with the careless application of ‘charity’ — errors that can be overcome by a robust understanding of what it means to exercise genuine charity in discussion.

If we are interested in achieving an adequate and serious understanding of charity, we cannot do better than to be guided by the careful work of Mark Vorobej in A Theory of Argument.

Error 1. Misunderstanding the basis of charity. Charity is not based on getting a more accurate reading of the text. The point of charity is not to understand the text more accurately. Quite the opposite: for the entire point behind our need for charity is that we’ve failed to establish an accurate interpretation that satisfies the level of lucidity we need. Rather, charity is grounded upon a sense of fairness in conversation. Vorobej explains: “To opt deliberately for any other reading [than the charitable reading] is unfair to the author, needlessly harsh and mean-spirited” (pp. 29).

This is important to recognize. If we confuse ourselves into thinking that charity is established on purely rational grounds, for instance as the cornerstone of all communication, then we end up having to abandon skepticism entirely in places where skepticism is most prudent. For instance, in some serious conversations, we simply must abandon charity altogether or else risk behaving imprudently.

The first rationale for rejecting charity is precisely because it would be unfair for the audience to be asked to make a charitable attribution in practice when the speaker has clearly spoken infelicitously. Say, for instance, that the Vice-President of the United States says, “The insurgency in Iraq is in its last throes”. Let’s also say that Iraq is undergoing a civil war which we can anticipate to be long-lasting. The most defensible interpretation of this would be to say that the meaning of “last” in the Vice-President’s utterance is used against the backdrop of some wider historical timescale; such that in (say) 30 years, the insurgency really would be gone and Iraq would be peaceful. Let’s also say that the alternate (non-charitable) interpretation of the utterance — namely, that the Vice President is simply confused about the state of Iraq — seems equally strong, as far as plausible attributions go; but we are told to attribute the more defensible interpretation, anyway.

But the “last throes” remark is not at all defensible as a way of phrasing the charitable interpretation. The words are at odds with the underlying meaning to such an extent that we simply must attribute the non-charitable interpretation to him. For, most of the time, utterances carry with them the idea that the speaker is saying things in a way that can be reasonably understood on the basis of what is said: a kind of automatic implication of felicity. To attribute the charitable intent to the speaker on the basis of some words used in context is to condone the method of phrasing (within some tolerances). To interpret charitably (without interjecting and saying, “Whoa, whoa, whoa — what?”) is to accept that the underlying proposition clearly matches the manner of speaking. This is semanticide, and against part of the foundations of communication which any rational conversant must abide by.

The moral of the story is that, within some tolerances, felicity trumps charity.

Error 2. Ignoring the speaker’s goals. What does it mean to attribute to a person the “strongest” interpretation? We might say, wrongly, that it would be to grant them the interpretation that is closest to the truth. But obviously, this doesn’t make sense. To follow one famous Davidsonian line of thinking: if we grant that the meaning of a proposition is its truth-conditions, then the possibility of having false beliefs (and correcting false beliefs in others) forms a formidable basis for our grasping the meaning of propositions in the first place. In other words, you have to understand the utterance on the basis of what is most defensible in terms of the speaker’s beliefs, and not necessarily on the basis of what is true.

So it is far more important to take an examination of the speaker’s goals, personal projects, social situation, and so on, and then decide what would be the strongest interpretation from their point of view. So if someone from the Heaven’s Gate cult says, “Soon I will be over the moon!”, the strongest interpretation would not be to interpret them as meaning “Soon I’ll be happy”, which may be plausible as a matter of fact; but rather, we may go further and attribute to them the crazy belief that they will be, in fact, above the moon. Evaluation of truth need not apply.

This demand for verstehen applies just as well to practical-normative cases, where appeals to “truth” and “falsity” don’t enter the picture. If I go to the local park and see a sign that reads, “No motorized vehicles permitted”, am I supposed to infer that the judge or lawmaker who made the sign has banned those in motorized wheelchairs from the park? Of course not. The goal of the law which the lawmaker had in mind is easy to infer — namely, “Don’t park your car on city grass” — because we know the lawmakers are (supposed) to have public wellbeing in mind; and banning wheelchairs would be plainly working against that goal. If it were well-known that all lawmakers were a shifty bunch, and had a distaste for the handicapped and elderly, then we might make another interpretation.

There are consequences to accepting this wisdom. How many times have we heard this trope: “If we assume that Mr. Writer So-and-so was really smart; and that this interpretation of his words makes him seem really stupid; then we must interpret them as having meant something else”? All it takes to blow this bit of aphoristic pomp to shreds is to note that, in philosophy, one has to get used to seemingly ridiculous arguments which were made by really smart people. The fact of the matter is, people have different goals, different thoughts, beliefs, desires, intentions. To assume that intelligence implies this-or-that interpretation is just silly, once we take into account the actual goals of the writer, and really come to accept that other intelligent persons may sometimes have wildly different beliefs than ourselves.

American democracy doesn’t work

Glenn Greenwald argues:

The basic mechanics of American democracy, imperfect and defective though they may be, still function. Chronic defeatists and conspiracy theorists — well-intentioned though they may be — need to re-evaluate their defeatism and conspiracy theories in light of this rather compelling evidence which undermines them (a refusal to re-evaluate one’s beliefs in light of conflicting evidence is a defining attribute of the Bush movement that shouldn’t be replicated).

Karl Rove isn’t all-powerful; he is a rejected loser. Republicans don’t possess the power to dictate the outcome of elections with secret Diebold software. They can’t magically produce Osama bin Laden the day before the election. They don’t have the power to snap their fingers and hypnotize zombified Americans by exploiting a New Jersey court ruling on civil unions, or a John Kerry comment, or moronic buzzphrases and slogans designed to hide the truth (Americans heard all about how Democrats would bring their “San Francisco values” and their love of The Terrorists to Washington, and that moved nobody). It simply isn’t the case that we are doomed and destined to lose at the hands of all-powerful, evil forces.

It’s not hard to see a bit of pride in Greenwald’s writing. But the attentive democratic reader can only respond to the slightest hint of pride with the barest winsome smile. Even the faintest self-praise from the Colossal Failure that is the contemporary American left comes off as triumphalism. When a movement is so starved for success, its genuine successes will still seem like failures.

No doubt these people who have called themselves “Democrats” deserve some encouragement. They deserve sympathy in part because they have suffered through bad electoral times, and would like a break from perpetual horror; they also deserve it in part because they’re generally right. But what Mr. Greenwald and all the rest need to be reminded of, is that the sigh of relief can’t last long, and it hasn’t been earned.

The fact is, American democracy is in dire shape. The Democrats a) have gone from a barely-minority position, to a barely-majority position; and b) now have substantial amount of power because of that. And both propositions show how far gone American democracy has gotten, albeit in entirely different ways.

The Republican party’s image is a public-relations nightmare. Recent news has shown that they are the party of pederists, warmongers, supporters of a lost cause, censors, killers of innocent Iraqi civilians, apologists for torture, destroyers of social security, tactical and diplomatic incompetents, courtesans of theocrats, enemies of stem-cell research, despisers of both the United Nations and international law, and apologists for state terrorism. They are contemptuous of basic democratic systems, and lie to the public from the highest levels in order to get what they want.

But any basic democratic state would not, and could not, vote for such a party; it would be reviled by 90+ percent of the population. The mere fact that anyone would support it, shows that the democratic culture is reeling from a powerful blow. Much of the pent-up paranoia that any given 1950s straight-man felt against the communists can be attributed to, and was legitimated by, fear of totalitarian rule (albeit mixed with a healthy dose of greed, nationalism, and xenophobia). Yet you can scarcely find any such sentiment among the contemporary Republicans towards themselves; the libertarian right has fled.

Of course, the power of the Republicans originates from identity politics. And the fact of the matter is that identity politics skews towards the undemocratic insofar as it stops aiming toward the achievement of policy goals aimed at the greatest good for the greatest number, and replaces those ambitions with sectarian goals. It may be useful to remind ourselves of Rousseau’s insight on the matter: that a democracy is what happens when the people vote for whatever’s best for the people.

Granted, Rousseau’s ideas are unworkable in practice; people will tend to be self-centered and vote accordingly. Nevertheless, his sentiments are deeply connected at the root to the very practicable thing that makes a democracy work — namely, the willingness of a majority of persons to actually be democratic, and to utterly reject totalitarianism. To have a majority abandon this feeling for law — or to abandon the necessary second premise, of a feeling for reality — is not functional to democracy in any sense of the word. It is a genuine crisis of democracy at its most basic level. As much as I may like her, Nancy Pelosi can’t just pass some legislation to make it go away.

The problems of the culture translate into problems for the law. The dismantling of the filibuster, the alienation of large blocs of the voting population by providing limited voting booths in neighborhoods sympathetic to Democrats, the use of insecure Diebold machines which have zero transparency, and most importantly, the 2000 elections debacle, ought to have shown Americans that their system is broken. That system is broken, simply, because the crimes listed above are things that were done with impunity.

After the 2000 elections, given that we know how the majority really did vote for Gore, the legislature of the intervening years (2000-2004) could only be understood as having been altered or dissolved. As Locke explained: “When, by the arbitrary power of the prince, the electors, or ways of election, are altered, without the consent, and contrary to the common interest of the people, there also the legislative is altered. For, if others than those whom the society hath authorized thereunto, do choose, or in another way than what the society hath prescribed, those chosen are not the legislative appointed by the people”. The Conyers Report, coupled with reports from the GAO, lead us to suspect that the same sort of nonsense happened in Ohio of 2004. Yet where you find election fraud, you cannot find a legitimate democracy; you may only find a rogue state.

Second, the role of the opposition party should be considerable in a democratic state. Yet the impotence of the Democratic party in the past few years shows how broken the American system is. The American public genuinely was split 50-50, yet if you had just looked at the corridors of power, you’d never know it. The Democrats held a respectable amount of seats in both House and Senate, and yet could do almost nothing. The perfect illustration of this is that they had to hold their hearings on Iraq in the basement of the Capitol, literally driven underground.

These facts are not news to Greenwald. Still, he tells us that American democracy has suddenly come alive, with its “basic mechanics” working at a level that is “functional”. If so, it’s news to me. One does not need to be a conspiracy theorist to point out that the “defects” of American governance, rob it of all pretense to democracy.

Soldier killed self after participating in interrogations

http://www.editorandpublisher.com/eandp/columns/pressingissues_display.jsp?vnu_content_id=1003345862

I don’t really want to lower the tone of this blog, but I have to say, this story is revolting at a level I find hard to express.

Greg Mitchell reports:

The true stories of how American troops, killed in Iraq, actually died keep spilling out this week. On Tuesday, we explored the case of Kenny Stanton Jr., murdered last month by our allies, the Iraqi police, though the military didn’t make that known at the time. Now we learn that one of the first female soldiers killed in Iraq died by her own hand after objecting to interrogation methods used on prisoners.

She was Army specialist Alyssa Peterson, 27, a Flagstaff, Ariz., native serving with C Company, 311th Military Intelligence BN, 101st Airborne. Peterson was an Arabic-speaking interrogator assigned to the prison at our air base in troubled Tal-Afar in northwestern Iraq. According to official records, she died on Sept. 15, 2003, from a “non-hostile weapons discharge.”€

But in this case, a longtime radio and newspaper reporter named Kevin Elston, unsatisfied with the public story, decided to probe deeper in 2005, “just on a hunch,” he told E&P today. He made “hundreds of phone calls” to the military and couldn’t get anywhere, so he filed a Freedom of Information Act request. When the documents of the official investigation of her death arrived, they contained bombshell revelations. Here’€™s what the Flagstaff public radio station, KNAU, where Elston now works, reported yesterday:

“€œPeterson objected to the interrogation techniques used on prisoners. She refused to participate after only two nights working in the unit known as the cage. Army spokespersons for her unit have refused to describe the interrogation techniques Alyssa objected to. They say all records of those techniques have now been destroyed. …”.

I’m reminded of the horror film, “Cube”, where people of varying degrees of innocence were trapped, tortured, and killed without exactly knowing why. If you were part of this, or of something that you considered to be a crime against humanity, what would you do? How do you capture the level of insanity, horror, and injustice with mere words? The answer that was evident to Emile Durkheim, suicide, may also be the case here, although I’m not sure Durkheim would quite have had the theory to describe it.

The spin that we’ll hear from, of course, is that she was suicidal from the beginning, had a series of mental problems, etc. Maybe it’s even true. But of course, information about all these things will not be hard to come by. If it becomes an issue, the consensus among pundits will be that she was unstable, and couldn’t deal with the harsh reality of entirely practical, functional detainee interrogation techniques. The role of moral horror in the crafting mental instability will be downplayed; but of course it will be a tragedy, with flowers going to the parents of the deceased, and kind words, etc.

On a more sober note, I must admit surprise that not all documents have been destroyed, and am continually surprised at the effectiveness of FOIA. The true test of FOIA’s effectiveness will be whether we ever see the suicide note.

Freeing speech & limiting acts

In reply to a recent thread, Cosim had two pressing concerns over the ethics and legal philosophy behind free speech.

(1) “I’m not sure why the law should tolerate racist opinions; general propositions don’t decide concrete cases. For example, to take the Brandenburg case from American constitutional law, Klansmen spoke about sending “€˜the Black back to Africa, the Jew to Israel”€™. Although the threat was surely not imminent, I’m not certain why a society should permit such talk, even if it is only that: talk by white men in white bedsheets.

In such a case, the risk-of-error – supression of speech that might in the long term come to good – seems exceedingly small so I think one can saely consider the limit of this over onto zero.”

(2) “Speech/act distinction: how viable? It’€™s mentioned several times, and I’m unsure as to whether and how much useful it is.”

On the surface, their arguments seemed somewhat plausible to me, for two reasons. One, I’m a Canadian, and I’ve grown up in a legal climate which is not especially interested in tolerating abuse in the name of free speech. True enough to that tradition, I can’t help but admit that I have no sympathy for hatemongers. Two, there is a distinction between the freedom to express content and the freedom to make particular speech acts, where the former is treated as sacrosanct, while open season may be declared on the latter. Yet this distinction can be troublesome. For instance, elsewhere in comments, I’ve admitted that the law may be more flippant with some kinds of cases of speech, and more wary with other kinds. For certain kinds of claims have a traditional rhetorical force than others; imagine the difference between an activist’s impassioned plea for desegregation as a direct commandment of the Constitution, versus a man giving an impassioned plea for the liberation of turnips. The former has a force on our sympathies which the latter obviously doesn’t, and the distinction in some part rests on the content, and not the manner of speech. The former would seem to have more political force than the latter.

Still, flying by on one’s initial reactions is a crappy way to live one’s life, so (1) and (2) need further examination.

(1) Let’s say for the moment that what Cosim says is true for a certain category of cases — in other words, that the speech act will always produce some kind of bad, and avoidable, consequence. If what he/she says is true, it would seem that the utilitarian (like myself) would be compelled to make an exception against free speech in that kind of case. The topic then zeroes in on the question, “Is free speech really a right?”.

I want to say, ultimately, “yes, it is a right”, because there’s always the worry about a slippery slope. So we have to ask ourselves two questions:

First, will the exception made by the community have a negative impact on its habits — i.e., will it weaken or destroy our understanding of “rights”? I believe so. Still, if the distinction we make is a principled exception, then that might seem more permissible — though it’s like a stop-gap measure which protects us from the collapse of a dam.

Second, will a principled exception made by the polity have a negative impact on the polity’s habits of enforcing rights? The entire judicial system works on the basis of precedent, so the answer seems to be an undeniable “yes”. But what do we figure would be the extent of the damage? Would people simply accept the exception to the rule, and leave it at that — or would they use it as a springboard for further erosions?

It’s hard to say; so much seems to be context-contingent. And if we do look at the present context, I can’t help but be pessimistic. Just think of the fiascos of recent years. The political attitude appears to be an eagerness toward the suppression of free speech, both in America (Bill Maher’s firing), Europe (anti-Islamist postures), and the Mideast (Danish cartoons). That worries me. But anyway, giving the benefit of the doubt, I could at best only claim agnosticism about the possible consequences. But whenever I’m blocked from the application of the principle of utility into a judgment, I must err on the side of principle — in this case, in favor of free speech. This “deontology-as-a-last-resort” attitude is perhaps not at all convincing. But I think it is no more convincing than any sweeping argument that the principled erosion of some right will have no potentially disastrous impact at all upon the way that right in general is applied (and understood) in the future.

(2) I worry about the viability of the act/content distinction as well. First, there’s obviously the worry that people will, in practice, make errors in applying the distinction. But there are also worries about whether a speech act can be divorced from the context of the act and the sensitivity of the audience, which would affect the force of the perlocutionary act.

What are we talking about here, in plain terms? I must confess, I don’t even know. Really, it doesn’t seem as though there’s any such thing as a perlocutionary act. For an act is supposed to be the product of some agent’s intentions; yet the perlocutionary act varies from audience to audience.

For example, let’s say that a popular comedian, Lenny, gets on stage before a large audience. Let’s also say that part of Lenny’s act is to make racist-sounding remarks in order to parody racist people. Most of the audience laughs at the joke. But let’s say that a prude in the audience, Richard, doesn’t quite understand that Lenny is actually mocking racists — rather, he thinks that Lenny is himself being a racist. Richard despises racists, and so, is offended. Now — given that because an act is supposed to be the product of some agent’s intentions, and given that we are working with the definition of “perlocutionary act” linked above — Lenny has performed an action, and that action was to offend Richard. But Lenny never intended to offend Richard; so how could he be said to have performed the act of offending him?

If we were to maintain that Lenny’s perlocutionary act was to offend Richard, nonsense would follow. Not only have we seemingly washed away the distinction between action and a mere consequence, we’d seem to have to say that the expressed content of the joke was all there was to the speech act.

A more nuanced examination would say something like, “Lenny’s speech act was to tell a joke; his perlocutionary act was to make the audience laugh; but a latent consequence was that Richard was offended”. But if that was the case, then Richard’s hurt feelings would not be the target of a perlocutionary act, but rather something else. Still, happily, the act/content distinction would seem undamaged in this case, because we can point to the content of the words and then contrast it to communicative intentions in a social context.

Perhaps Cosim had other concerns about how the viability of the distinction might be challenged, but the above was (I think) my big lumpenworry.

Revisiting “Manufacturing Consent”

“Manufacturing Consent” is a document written by Prof. Chomsky which tries to show that the institution of newsmedia is, and has historically been, beholden to the powers that be. The cornerstone of the book is a “Propaganda Model”, which explains the political slant of mass media according to five filters, all of them fairly sinister: organizational ownership, funding, news sourcing, defence against flak, and ideology.

My first thoughts were rather skeptical; I think the model could never pretend to explain all of the pressures and nuances that lead to certain abysmal features of modern newsmedia (for instance, it doesn’t directly attribute anything to the laziness of journalists or editors). Moreover, all other things equal, aren’t capitalistic enterprises supposed to be sensationalistic? Wouldn’t one expect for these big stories to be bled for all they’re worth? It seems like slanted social science, the kind of thing which gives the whole faculty a bad name.

But after reading this just recently, some of my skepticism has abated. The link there is to the Columbia Journalism Review, which tells the story of one journalist (Carlotta Gall) whose exemplary work on torture of detainees was marginalized and respun by her own editorial board at the New York Times. This is exactly the kind of behavior that the Propaganda Model predicts — not total suppression, but systematic muffling of salient and sensational stories. I like to think that I’m not naive, and the behavior of the model seemed plausible *some* of the time; but now I am forced to wonder just to what extent. [Edit: And Gall is just one name in a pack. We can also mention Peter Arnett, Ashleigh Banfield, Eason Jordan, Giuliana Sgrena, and most recently, Anna Politkovskaya, among others.]

Moreover, the Model (upon some consideration) seems to be in line with some of the sources of power. I indicated in a previous post that there seems to be great hope that Dependency Theory may have enough descriptive gusto to explain a wide swath of phenomena across the social sciences. And it seems to apply to the first four of the Chomsky-Herman filters as well. Those within an organization are dependent upon the rewards of their superiors, and upon the withholding of punishments; and the organizations themselves are dependent upon like rewards and restraints supplied by outside sources of funding, both in the forms of sourcing and flak. Only ideology seems to be the odd man out, but we may be able to describe that as a special case of dependency which operates at the moral and social-psychological level, and not at the level of organizations.

Just no sense to this here nonsense

Thanks for J. Carter Wood at Butterflies and Wheels for bringing this gem of an article to greater attention. The title: “Deconstructing the evidence based discourse in health sciences: truth, power and fascism“. Published in the International Journal of Evidence-Based Healthcare, written by health science Profs. David Holmes (also a registered nurse) and Genvieve Rail, PhD candidate / registered nurse Amelie Perron, and English Prof. Stuart Murray.

Yes, you read it right: fascism. In health science.

The really bad kind of fascism, if you will.

The thesis is that what is called “Evidence based health sciences” (or EBHS) is a hegemonic form of discourse. (Hegemony, we’re led to believe, is just another way of saying “fascism”.) The villain, EBHS, involves, well, evidence: taking into account the successes and failures of certain practices, and then acting accordingly. It is alleged that this sort of method is tied to a source of data called the “Cochrane database”, which (we’re told) provides the RN or doctor with information only about the most reliable methods. It is to be contrasted with “pluralistic” visions of the nature of science; the details of these other, marginalized sciences escape me, though empathic understanding (or verstehen) appears to be part of what they have in mind.

I don’t think I can do this thing justice. No matter what I say about it, my words will be but a shell of the experience of reading it. I could be even-measured as a reviewer, but the result would be to interpret sense into a place where there’s a fundamental lack of it; and I could be scornful and mean, if I didn’t sympathize with some of the intuitions that nevertheless inspired the abysmal end product, which deserves no sympathy. (This paper, incidentally, was brought to us in part by the government of Canada, whose SSHRC division’s ostensibly ironic motto is “We build understanding”.)

The first thing that occurs to me is that the thesis commits the common fallacy of blaming a method for one of its uses. The authors seem to blame evidence-based searching for the supposed wrongs of taking the Cochrane database to heart. The database, evidently, only provides the absolutely optimally justified information, the best and most reliable knowledge one can find. The authors state: “One of
the requirements of the Cochrane database is that acceptable research must be based on the [randomized controlled trials] design; all other research, which constitutes 98% of the literature, is deemed scientifically imperfect.” As stated, I see no problem, because there’s no significant normative exclusion involved in presenting the facts as they are. The problem arises when people in the system define the terms of when something is or isn’t actionable, without first taking pains to think of the consequences of what they’re doing.

Now in practice, I can imagine a scenario where this might be an issue. Sometimes, people in authority have a hard time believing that facts about a situation are not especially predictable, and can’t accept that incomplete data (and the risk that accompanies it) may still be far better than rash, random ignorance. When a starving man turns down all meals except fillet mignon, then you know he’s asking to die; and the same applies here. And perhaps (to exercize a bit of verstehen) it is rage with personal experiences with such characters which animated this paper. Fine enough.

But comments about the contingent practices of authoritarian dopes are not to be conflated with the niceties involved with a theory, because (absent any citation to the contrary from the authors) the theory is ambiguous about which data are actionable and which are not.

All of this, we’re told, is “fascist” — actually, “microfascist”. My former political philosophy professor and permanent member of my good books once explained: “In today’s terms, to call someone a “fascist” seems to just mean that you’re a jerk”. I guess that’s what’s going on here, because the old label doesn’t apply; indeed, the idea of “microfascism” is curious, since the entire idea of fascism is to champion a nation-state over an individual, and to devote oneself to its will; a kind of radical collectivism, there’s nothing “micro” about it. And no new definition is provided: rather, we’re given a footnote to Deleuze, and later informed that we’ve already been given a definition. If imagination is a necessary component of nostalgia, then I guess this is a prime example. The only attempts to define that I can see come in rather late in the paper, and say that fascism is “exclusion”. This is about as meiotic as calling a lion a pussycat. And anyway, it doesn’t apply to a mere method: the authors may have a right to aim at the misuses of a certain database, but evidence itself has been caught in the crossfire.

“Crossfire”, you say? Yes, evidently. We’re told that there is a war going on, between the powerful 1984-style elites in the Cochrane group and the ragtag misfits with hearts of gold who endorse the conflationist model of criticism. If the authors took their words seriously, then they’d be in violation of the Hippocratic Oath. One then hopes not to have to be under the knife anywhere in Toronto or Ottawa, where the authors live.

Probably the only interesting remark I derive from this is that a more pluralistic approach to the examination of power would have stalled this tragic essay from ever being written. Power is virtual dependency. Power is not exhausted by the hegemony of an idea, if those hegemonic ideas have simply been persuasively put forward in cooperative conversation. This is especially important when one comes to understand totalitarianism, because hegemony of an idea is merely one source of power, namely, the power of the common mind; while totalitarianism is power which has captured all sources. To conflate a method — which does indeed have hegemony, because it is authentic to a large degree — with the way that some people have decided to use a database, is …

…well, nonsense. It does not compute, does not provoke any mental images, fit into a sensible syllogism; it has no truth-conditions, has no cogency, no role in everyday usage, no consequence on our behavior; no value as an achievement; as a speech-act, it is barely audible; it uses no radial categories, no propositional functions lead us to a lasting moral; it has no content, conforms to no intention, resists interpretation, and hermeneutical study is as ignorant of its sentences as George W. Bush is to Casey Sheehan. In short, it literally, exhaustively, definitely, definitively, and scrupulously makes no sense. The irony (one bit of irony among many) is that one of the very things they want to argue against is the practice of linguistic opaqueness: that is, using words in a way that’s totally out of step with the common lexicon, simply for the purposes of exclusion. But in the process, they only succeed at alienating everyone.

This, then, is a miserable day for the Canadian grant system; and a proud day for the ‘International Journal of Evidence-Based Healthcare’, which has proved its merits most successfully by entertaining opposing arguments which had failed to give the question any serious thought.

It is perhaps no coincidence that my mother is a registered nurse, and it is her job to gather data on patient statistics at her hospital, and to report them to the Canadian government along with various information about treatments. I asked her to read this article, so she can have the last word on the subject. She said: “I don’t understand it. It makes no sense to me, the words didn’t make sense. The only thing that made sense that they said was that you can’t get funding unless you’re doing evidence-based research. But you can call these things whatever name you want, and your point of view might even be valid, but at the end of the day, it’s not going to change anything unless you can show that you’re evaluating things in a rational way. I don’t know if I’m just not smart enough to understand it, or what.”

The Wikipedia Blues

There have been a gross number of critiques of Wikipedia, the encyclopedic source online that anyone can edit. Most of them have been sourly negative, because the Wiki system has certain disadvantages. A common (and correct) complaint is that experts are not given incentives to participate in the process of making great articles, and are frequently given disincentives by being subject to the scrutiny of comparable dunces. Getting right to the core of the matter is the implicit idea that Wikipedia goes by a “consensus theory of truth” — whatever the randomites agree on, is true. (As Ophelia Benson would say, “that’s just fashionable nonsense”.) But just as there is a dark side to Wikipedia, there’s also a dark side to its critics.

In academia, as well as in law, one’s bread and butter is made by name recognition, accomplished not just through great research, but confidence. To a limited extent, internal disagreement is a functional part of the academic system. Dominant names in a field are often remembered for the arguments they made, and for their places in the great debates of the time. What makes conflict in academia functional is that it is generally expected to happen reasonably and respectably, without much permanent damage done to either party. The rules of debate, or cooperative discussion, are pretty straightforward, and informal logic is generally recognized. But the important point is that there are rules for respect, and the common recognition of these rules allows inevitable conflict to bear fruit with actual gains, conclusions, arguments, etc.

Conflict on Wikipedia, however, has no strict rules for respect. Instead, the system is propped up to a great degree by emotions and tactics. There is WikiLove, which is the idea that friendliness and courtesy will curb a lot of silly disagreements before they begin; and the “be bold” tactic, which asks editors to go ahead and perform those edits which seem best to them. The former attempts to curb conflicts; the latter makes sure that conflicts are inevitable. Neither of these have to do with logic or reasons, but only with (admittedly sensible) worldly wisdom.

It is unfortunate that there lack incentives to engage in reasonable behavior. It is precisely the lack of an institutionalized sense of reason which causes the irritable hobbyist to alienate the expert, and cause her to leave. But the dagger cuts both ways: it is the lack of desire to engage in cooperative conversation, due to lack of incentives, which ensure that the expert will not engage in disagreement reasonably.

It is as if Wikipedia were the microcosm of the mass political scene. The expert who leaves the walls of academia will dismiss alternate evidence without even noticing that they’ve dismissed it; they will resort to ad hominem; they will ignore arguments, etc. In short, anything to push a certain conclusion which they are convinced of (and which may or may not be correct). The stamina required to push forward certain propositions, and to assert intellectual territory, makes impatience with counterproposals necessary. And sometimes, the propositions are based on insufficient data; good faith attempts to make corrections are ignored, viewed with scorn, dismissed, and marginalized; entire discussions collapse into foregone — and false — conclusions.

That has essentially been my experience with Wikipedia, and why I’ve lately abandoned it.

Some preliminary remarks on the study of power

There are a couple of different ways to look at power.

Sociology is supposedly divided into two camps: “conflict” theorists and “consensus” theorists. As far as I can tell, this means that some people enjoy describing society at large as an eternal struggle for egoistic benefits, and others enjoy describing it in terms of voluntary agreement. No doubt they will have things to say about power relationships. Well, these are both, I think, fairly unserious characatures so long as they pretend to be exclusive theoretical claims.

We have some other, related suggestions.

1. On the one hand, we have the idea that power is trust (or acquiescence), as Matt Wood recently suggested. I think there’s a lot going for this outlook; it seems to be able to account for group power, and community power, in a way that other traditions haven’t. But ultimately it’s still incomplete without discussing depedency and fear.

2. Another bundle of theories include the exchange theories of power, which are a cousin of contract theories of government. Such theories explain the emergence and structure of power as being based upon voluntary relationships which occur in order to secure mutual rewards.

One candidate for explanation along the lines of personal exchange has been the power-dependence tradition. According to the preliminary work in this tradition, a person (A) is said to be powerful when others (B) are more dependent upon A for certain rewards than A is dependent upon B.

The theory has the advantage of making a testable (and successful) prediction: asymmetry in dependence leads to an asymmetry in benefits. However, it also seems to have difficulty with explaining acquiescence and community norms, and how these are shaped by power-relationships. Moreover, the preliminary work in the tradition seems to underplay the role of fear and coercion, in favor of a view based on positive exchanges, rewards, and opportunity costs.

3. Later work in the power-dependence tradition investigates power as originating out of both rewards and punishments. So we can just as easily speak of bartering tomatoes as we can of blackmail. This seems less arbitrary. The language of “voluntariness” is exchanged for a more realistic picture, and the label of “dependency” is stretched pretty thin. Also, it loses out on the insight that trust is (or can be) a part of power.

4. Still other theories understand power as the product of domination and terror. This doesn’t need to be the same thing as dependency theory, because all that is required is the subject’s personal terror, not necessarily needing the threat of harm.

If we take all of these suggestions seriously, the emerging picture tells us that fear, dependence, and trust are different spheres of influence, and that each plays some role in an overall picture of what it means to have power.

Matt Wood: “What is power?”

Matt posted a mini-essay recently in the comments section of the “10 Worst Books” thread which I think itself deserves discussion. After musing over a particularily apt headline on “The Onion”, he writes:

The central premise of American government is that all legitimate power flows from the Constitution. And yet the Constitution is not a self-executing document; some degree of interpretation is required. So let’s take a few basic propositions:

i. The Constitution grants power.
ii. The power to interpret the Constitution equals the power to grant power.
A. Therefore, when the President claims the power to interpret the Constitution authoritatively, he is claiming the power to grant himself power.

Such a claim should sound mental alarms for several reasons. First, it raises specters of unchecked power. Second, as a formal matter, it seems to violate the doctrine of separation of powers (which is designed to guard against the first danger).

So where would this putative power to interpret flow from? Perhaps the President would claim that executive power to interpret the Constitution can also be found in the Constitution, by implication. But this is a circular argument: The basis for the power to interpret is itself an interpretation, which begs the question.

[A comparison can be made to a religious figure who bases his authority to interpret scripture on the basis of (an interpretation of) scripture.]

Let’s examine this phenomenon from the perspective of a legal layperson, with no concrete knowledge of the content of the Constitution, much less a copy close at hand. The President’s appeal, while illogical, operates on the level of rhetoric: if individuals believe that yes, he does have the power to claim that the Constitution grants him the power to interpret the Constitution, even though such a claim is premised on a circular power of interpretation, these believers will act as if this power exists. In effect, they will grant those powers to him ‘extra-constitutionally’ by their acquiescence. [The line is apparently thin between our attention to the substance of a claim and our attention to the status of the individual to make the claim. The more believable the claim, the less likely we are to question the status of the individual to make it authoritatively. Under our current system, presidential persuasion of the general population would likely constrain Supreme Court decision-freedom. In other words, the presidential claim becomes imbued with a sense of ‘objective truth’ which constrains the formal authority’s decision-making freedom, effecting a subtle but de facto shift in the distribution of interpretive power.]

Take the following example:
The president takes controversial action. Two universes are possible, depending on how well the President subsequently makes the case that his actions were constitutional. In the first, the people are persuaded and believe that yes, he *had* the power. In the second, persuasion fails, and the people believe that no, he *did not* have the power. Note the tenses that accompany these beliefs. They seem to suggest that subsequent persuasion can determine prior existence. A strange reversal of causality’s normal chronology, to say the least. The burning question seems to be then: is there any valid sense in which power exists apart from belief, or is it just a reification constructed on the grounds of belief? This is especially thorny when we consider that people may be persuaded on grounds other than the merits of the claim to power – perhaps almost solely as a function of trust. If we can acknowledge that the success of the president’s persuasion bears no *necessary* relation to things such as the intent of the framers, prior history of the nation, etc. (even though such devices may enhance persuasiveness), can one dissident voice validly stand back from the mass of consensus and say, “I know you all believe he had the power, but he *really* didn’t,” or the converse, “I know you all believe he didn’t have the power, but he *really* did.”

A description of power as reification is consistent with the notion that if every person outside government simply stopped believing that the social structures of government had any power to control their actions – that its laws have the power to bind them, that its subpoenas are anything more than junk mail – and recognized the system as just cooperative associations of role-playing individuals, government would cease to exist as a psychological, and perhaps therefore ontological, matter. [Something akin to this process probably happens during civil wars or when empires are in a state of dissolution.]

So why would anyone be vulnerable to the President’s circular claim that the Constitution grants him the power to interpret the Constitution? Perhaps because they actually believe that the Constitution really does ’say’ something on the matter, and that his claim is reasonable and believable.

This is consistent with the notion that the Supreme Court authoritatively interprets the Constitution’s meaning, which is reified as something discoverable, not created in the act of interpretation. So where does this interpretive power come from? Marbury v. Madison, and something more like natural law claims than constitutional interpretation. But a parallel question is raised: if the Supreme Court invokes the power to interpret natural law, on what is this power based? Ultimately, I think, the answer is that it derives simply from our belief in it, our acting *as if* it were true. And if the existence of power is ontologically dependent upon belief, the relevant question, in response to a claim of power, ceases to be a descriptive “Does X have the power?” and becomes of necessity the normative “Should X have the power?”. If we do not believe X should, then the avenue of counter-persuasion is available to us.

By “belief” in the context of Matt’s example, I take it his total meaning is something like “popular belief in the legitimacy of the execution of power by so-and-so”. If I’m reading him right, then popular belief in legitimacy seems far from enough to be a characterization of power in general. Rather, what Matt has put his finger on is a special kind of power — organizational power. But social power more generally can also involve illegitimate force and coercion, which haven’t got much to do with legitimacy; the barrel of a gun can be mighty convincing, even though the victim sees no legitimacy in its exercize. (Of course, it barely needs to be said that there can be non-social kinds of power, as well: my free will is a kind of personal power, and my ability to manipulate objects is an inanimate power, and so on.)

Still, Matt is very much on the right track by identifying trust as one source of power. It just needs to be emphasized in this context that fear is another source. Once we take both to heart, we have a plausible model of societal emergence (Matt calls it “extra-constitutional acquiescence” here) which is capable of replacing the contract theory paradigm in the social sciences at large.

The conundrums involved in Matt’s “two universes” example are especially illustrative of another point, I think — the question of the ontology of power. His examples seem to describe the reality behind power in a plausible way. But there’s a certain “What the hell?!” factor which arises in the cool hour when we try to digest the lesson here. Rationally, we want to say that either a person has power, or they don’t. It smacks of the memory hole to think that whether or not power exists can be decreed after the fact.

This conundrum, I think, can be resolved once we realize that this doesn’t apply to power itself, which is more or less objectively observable, but rather, to the legitimate or illegitimate status of power, which is more subjective. Matt’s dissident character would be wrong to say that an illegitimate leader lacked the power to do what they did. Power, like any ability, is demonstrated through its exercize.

Still, there may be more to say in defence of Matt’s idea that power in fact and as norm are intertwined. And we would be fools not to pursue this interesting line of inquiry! Still, it just seems to me that it can’t be the whole story.

Putting an end to unsound examinations

/// What follows is the final installment of a series of examinations of utilitarianism from Harwood’s seminal essay, “Eleven Objections to Utilitarianism”, along with my demonstrations of how these objections are unsound. Previous installments address such topics as integrity, justice, promise-keeping, supererogation, average and total utilitarianisms, rule utilitarianism, and hedonism. ///

10. Utilitarianism makes interpersonal comparisons of utility.
What utilitarianism demands, implicitly, is that the happiness of persons can be compared to one another (usually using some abstract idea of a “hedon”, or unit of pleasure). However, this in itself seems suspect, since the experience of happiness is entirely a) idiosyncratic, b) subjective, and c) variant between persons. Thus, it seems bizarre, or outright impossible, to say that one may compare happiness across persons.

Harwood rightly dismisses this objection for a variety of reasons.

First, he stresses that utilitarianism allows for different means by which satisfaction may be achieved. So the fact that needles make me miserable without doing the same to you, doesn’t indicate anything about pain itself. Thus, the idiosyncratic nature of pleasure and pain can be dealt with by utilitarians.

Second, he argues that we regularly and commonsensically make interpersonal comparisons of utility. To illustrate, he writes that “we build freeways even though we know that it is just a matter of time before and innocent baby who would not have died nearly so soon had the freeway never been built gets crushed in an automobile accident on the freeway. But the great convenience of the freeway and the other lives saved by allowing ambulances and other emergency vehicles to use the new freeway … outweighs the harm caused to the crushed baby”. This seems to defuse some of the motivation behind the objection, although, as an appeal to this mysterious thing we call “common sense”, it falls short of being persuasive.

Third, he argues that interpersonal comparisons of utility have just as many problems as intrapersonal comparisons of utility; all the same arguments made against the former can be made against the latter.

This isn’t true, however. I may compare my imagined happiness in the future to that of the present, or the present to the past, and my act of doing so does not interfere with the objection that both are subjective experiences. But if I were to try to compare my experiences to another person’s, I would run into problems, because experience is always unique to the subject. The point — which is worth taking seriously — is that you can’t just lay out the contents of one person’s conscious mind, lay out those of another person’s, and compare the two. Minds just aren’t like that.

Still, I think that, for all intents and purposes, we may make comparisons between persons by taking our analyses with a few grains of salt. But even if we were to allow that such comparisons could be made in principle, we can rightfully ask, “Well, how? Put it in empirical terms, already”.

It is said that utilitarianism has served to be an inspiration to economic theorists, but one thing that economists have grown to accept is that happiness cannot be measured en masse. Rather, they tend to rely upon observing the preferences of persons, postulating through the use of models of human action that there is a connection between desire satisfaction and happiness. An economic sociologist and utilitarian could then argue that certain models of social action allow us to infer levels of happiness, at least in part, on the basis of satisfying desires.

I won’t begrudge the general epistemic point, although the calculation depends upon a plausible model of human action. The favorite of classical economists and vonMiseans, rational choice theory, is something which we now know is implausible, and has rightfully fallen out of grace across the social sciences. Still, I mention these things only to point out yet another place where utilitarianism appears to be in desperate need for coherant and plausible analytic social philosophy to help provide genuine moral guidance.

[Edit: So those are Harwood's first few rejoinders. But he also considers a second kind of thought-experiment. Let's say that there are two kinds of people: those who are disposed towards dourness, and those disposed towards contentment. The same effort that it would take to make the dour person happier by 2 hedons could also make the contented person happier by 4. This experiment tells us, then, that utilitarianism councils us to expend more effort on those who are easily amused, since they will produce greater hedonic dividends.]

Harwood’s objection to this experiment is fairly brilliant and deserves to be quoted at length. He accuses a thesis of variance between interpersonal happiness as leading to bad statistical mojo. “Even if satisfaction was as wildly unpredictable from person to person… would it not mizimize our margin of error if we assumed that each person’s satisfactions were comparable? It seems so. For if we started giving preference or extra weight to persons whose satisfaction was assumed to be weightier [i.e., someone who is easily and intensely delighted], then the wildly unpredictable nature of satisfaction … would imply that we are as apt to be preferring and weighting the satisfactions of the right persons… as those of the wrong persons. If we chose the wrong person and thus gave extra weight… to the satisfactions of a [dour person]… then we have compounded any mistake we would have made by considering all satisfactions comparable, and we have extended the margin of error further than it was.”

[Edit: I really haven't got much to add to this point, because I think Harwood offers a persuasive argument relative to what he's arguing against. My only caveat would be to point out that the objection need not state that the differences in temperament are wildly unpredictable in order to be morally salient. It might be obvious that some people get more happiness than others as a matter of character; it is not at all unpredictable. And so it really would seem worthwhile to help these persons over those of more phlegmatic temperament, which seems wrong.

The trouble with all this is the habit which it forces us to endorse a habit of arbitrarily helping certain persons over others, which (if taken to such extremes where moral intuitions would come into play) would violate the optimizing spirit of utility.]

11. Utilitarianism forces us to violate the publicity condition.
Ethics, to put it roughly, is the guidance towards right thought, action, and life. This rough definition uses the word “guidance”, which seems to imply a necessary social element. Based on these axiomatic truths, we can understand that ethics, in order for it to be what it is, must be a public phenomenon. It can’t be secretive.

But some utilitarians have argued that “it would be a mistake to let most or all people directly pursue maximizing satisfaction, since too many will show bias or incompetence in calculating what will maximize satisfaction”. I can see very good sense in this objection, because (as we’ve seen in this series) a number of unsound objections are based upon bizarre, unrealistic worldviews can use utilitarianism to create nasty and evil results. Utilitarianism is dangerous when used improperly.

This has caused some to remark that utilitarianism is “elitist” or “secretive”. But that’s not getting to the core of the problem. To put it another way, the moratorium on publicity can be invoked by admitting the sheer impracticability of making utilitarian calculations in the real world. We have already dismissed objective utilitarianism because it provides no succor except to those who can see the future — that is to say, none of us. Meanwhile, subjective utilitarianism gives us a wide range of possibilities and risks, which requires some cool-headed and informed deliberation which we often don’t have the opportunity to engage in.

This objection concerns me more than any of the others because it seems to be quite strong. The publicity condition must be defended. The intuition behind the doctrine arises out of an inescapable conviction that unwritten laws must be either exposed and treated with rational scrutiny, or be ignored. Human social life is largely a mystery for me, but mindless conformity to (and rationalization of) norms strikes me as one component of Arendt’s banality of evil, mentioned earlier. An attack upon unwritten laws strikes me as an attack upon that very thing. When we take it seriously, we (rightfully) understand that for any abstract system of laws which direct action, thought, or life, and which is incommunicable, or (just as well) are based upon mere thoughts or beliefs instead of speech acts, then those systems are amoral by default.

Moreover, the publicity condition seems to be necessary because it is supported by the most plausible doctrines of accountability. We may formulate a person as accountable for some act if they could not possibly be blameworthy (or praiseworthy) by a moral agent. And a person cannot be blamed for a law to which they had no way of knowing. Thus, the laws which a person are held to, must be made public, so that persons may be held accountable to them.

My argument is in favor of examining utilitarianism in a slightly different way. It should no longer be considered a fundamental norm; instead, it is a kind of supportive groundwork for any fundamental norms at all. What I would like to say is that utilitarianism is a meta-ethic. This kind of utilitarianism (or “meta-utilitarianism”) provides guidance to the ethicist, but not guidance in general, simply because when taken alone it wouldn’t be very good at getting the job done. Its purpose for the ethicist is to provide clarity and guidance when reasoning concerning moral quandries, and to spur forward more nuanced analyses of social science. Ultimately, however, guidance must be intelligible in short form, either in the form of rules or narratives, and these things will be more helpful in everyday life. Since its audience is limited to ethicists, it does not need to satisfy the publicity condition.

I can imagine the reader getting impatient, and yelling: “that’s still elitist!”. And certainly, meta-utilitarianism (MU) seems more aloof than classical utilitarianism in some way. The way I think of MU is as if it shared a relationship with ethics like that between geometry and soccer. [Special thanks to Mitchell Langbert (CUNY) for his emphasis on this fact in discussion]. Zinedine Zidane didn’t need to do complex calculations during the World Cup, but every single move he made was still compatible with geometric truths. Similarly, the virtuous person doesn’t need to perform utilitarian calculations in every ethical dilemma; but for any plausible ethical reasoning, it will have to be compatible with utility. I don’t think it is elitist for that fact, any more than geometry is elitist.

I come to this conclusion on the basis of examining the evidence in the harder cases presented in the series. None of them seem to be decisive, many often missing the point. But all of them conclusively show that more explicit decision procedures towards judgments are needed than mere postulation of the principle of utility. Indeed, utilitarianism does not seem to exhaust all that there is to say on the subject of moral guidance; to use just one example, it is not usually obvious when, and to what extent, considerations of the social system are to be counterweighed against considerations about individual happiness, and these things make the project difficult to keep up in practice.

Some theorists may interpret this formulation as the last cries of the theory itself. If we are speaking in terms of the Benthamian calculus, and of archetypical utilitarians who are so skilled as to compute their way into infallible judgments at every turn, then in indeed, the theory is dead, has long been dead, and has only the scarcest hope of resurrection. But what if we take these dismissals more broadly, to include a rejection of the entire family of utilitarian theories (and especially MU)? No, I do not think such accusations can succeed. In the way I have presented it, meta-utilitarianism is, and should be, forever a part of the landscape of moral thinking. And even if there are more objections (as there always are), my more modest goal here has been to corall the efforts into tasks with a hope of success. If the theory at large, or MU in the small, are ever to be defeated, it won’t be through these unsound examinations of utilitarianism.


Summary of the important working parts of the argument

i. Agency is an incorrigible value.
ii. Enjoyment is a product of choice, and is unique to beings with agency.
iii. If supererogation is a significant concept, it derives out of successful moral risks. If it isn’t significant, then virtue serves as a replacement concept.
iv. Virtue is, in part, the fulfillment of agentic duties: the obligations to know and learn, and to empower oneself.
v. Counterfactual cases are significant only when they represent plausible or intelligible universes.
vi. Trust compels promise-keeping.
vii. Truth is not an incorrigible value. It is sometimes wrong to tell the truth. This counters proposals by thinkers like W.K. Clifford.
viii. Rights demand commitment at the risk of making them powerless.
ix. All “rules” are really just principles with extra weight. Rule-following is associated with positive duties more than negative ones. Nevertheless, the demands of utilitarianism apply across all situations.
x. The experience of waking from the experience machine serves as a reason to doubt that the machine is reliable. Also, the experience of waking from the machine rightly inspires moral horror. These are reasons why a person might not be advised to enter the machine.
xi. Hedonism is a thesis about the intrinsically valuable. It is not a thesis about right and wrong.
xii. Utilitarianism seems to violate the publicity condition. Until peripheral questions are answered regarding values and social systems, it must be understood only as a meta-ethic.

“Unsound examinations…” series: part 4

/// What follows is a piece which presents a series of examinations of utilitarianism from Harwood’s seminal essay, “Eleven Objections to Utilitarianism”, along with my demonstrations of how these objections are unsound. Previous installments address such topics as integrity, justice, promise-keeping, supererogation, average and total utilitarianisms, and rule utilitarianism. As the objections get more and more serious, my replies have grown in length. My apologies. ///

7. Utilitarianism requires us to enter the experience machine.

Most readers are by now familiar with the film “The Matrix” (just as most philosophers are tired of references to it in introductory philosophy classes). A central feature of the film was the concept that people could, without their knowledge, live in a world that was entirely virtual. Robert Nozick, in “Anarchy, State, and Utopia”, famously asks us to imagine a device called the “experience machine”. The experience machine is, in almost all respects, akin to the apparatus featured in The Matrix, with the sole exceptions being that for Nozick, a) people would have a choice as to whether or not they could enter the machine, and b) the machine would be programmed to provide nonstop pleasure to the participant(s). It would simulate happy experiences in virtual reality, allow the participant to achieve their greatest dreams, and so on. Let’s also suppose that everyone else on the planet has already entered such a machine. Suddenly, Joe awakes, as part of a normal procedure of setting up the details of the virtual life to come.

Nozick argues that utilitarianism requires Joe to enter the machine, for it would ultimately create happiness in him. However, Nozick contends that this is wrongheaded; people are in some sense alienated from their goals if those goals are not satisfied in reality. Thus utilitarianism is false.

This is a serious objection, and not just a charicature of hedonism. What is impressive is that the qualitative aspect of experience is kept the same in the example. If the example had involved lobotomy, or morphine injections, it would misfire, because they would diminish our capacity to experience which is necessary for the enjoyment of things. It would, for example, destroy the ability to commit to enjoyment, among other things which the utilitarian ought to concern herself with. Moreover, it doesn’t (as an accusation) say anything about what Joe would, in fact, choose. Rather, it relies upon our intuitions concerning what he ought to choose.

1. The first reply that needs to be made is that the consequences of leaving the experience machine are dire. As we have seen, there is such a thing as enjoyment, which appends itself to experiences of happiness that we have. It is important to note that one form of enjoyment is nostalgia, where we enjoy the acts we do through hindsight.

If Nozick has any viable intuitions here, it is that very good virtual experiences would involve the desire for the authentic achievement of one’s goals. Let’s grant him that. (If we refuse to grant him that, the objection to utilitarianism would be automatically defused; but that’s hardly interesting.)

Now let’s imagine a person wakes from the experience machine. How would they feel? How would it feel to realize that all which one finds meaningful has been a lie? We all know the experience of waking from very good dreams, and feeling distraught at the realization that they are false (before the memories of them fade in the process of waking). If this same sense were generalized to a sufficient portion of one’s life, then it would surely be an excruciating experience. Yet even this comparison may not capture quite the psychological impact of it. Perhaps the best analogue would be to the cases of refugees whose families and homes were destroyed in war. Surely these are not enviable positions to be in.

But in order for the Nozickian argument to carry, they would not seem to be enough to compel us not to enter the machine. Perhaps, they would argue, the participant’s pain in that brief moment would be outweighed by a lifetime of good future experiences in the machine. Let’s grant them that the machine produces great horror upon waking, but that is but a moment in time, and the memories of the subject were wiped upon re-entering the machine. Are the participants obligated to continue with it?

Before settling on a good reply to Nozick, I should consider a few replies which I think are insufficient.

The creed, “agency is an incorrigible value”, has had the power to deal with some objections so far. However, it does not seem to have much power here. An incorrigible value is trumped by an intrinsic value, and the only thing of intrinsic value is happiness. And Nozick’s example is a critique of precisely this: hedonism. Indirectly, it may play some role, though, in that agency produces enjoyment and its related concepts.

Enjoyment, and nostalgia, can be inverted: their twins are regret and embitterment. And these are precisely the things a person should avoid in a contented life, but which are inevitable results of the experience machine. The moment of misery upon waking creates a sense of embitterment which seeks to countermand every single happy experience created by the machine. However, the counterweight of bitterness only applies for the length of time in which a person is outside of the machine, which is a comparatively short period of time. Thus, this still may not be enough to save utilitarianism. However, it should be noted that the sting of bitterness present here is exquisite, which even a calamatous instance like that of the refugee doesn’t necessarily have to suffer.

What about supererogation? It would say, as would objective utilitarianism, that the person has no hope of behaving virtuously in the supererogative sense. But this is barely the point, as I’ve admitted that virtue is ultimately a means to an end, just like anything else. And it was unreliable anyway.

What would the person do? Would they go back into the machine? Likely not. But that’s not the point, Nozickians would insist: the point is that utilitarianism requires them to go back. Their actual choice afterwards is irrelevant.

We must wonder, what experiences did the person have in the machine, such that they would want to go back? Nozick’s example involves virtual reality, where the experiences are identical to real experiences. Knowing what we know — that agency is incorrigible — we may suspect the drive for authenticity would have demanded experiences that were contingent upon perceived authenticity while in the machine — it would be part of the person’s goal. Thus, it seems as though the participant’s goals, desires, and preferences aren’t being satisfied; and that this would be a way out. Indeed, a number of utilitarians have taken this route, exclaiming that ‘true satisfaction of goals’ is an aspect of happiness alongside length, intensity, purity, and so on. But I don’t believe that this position works, either. For there is a difference between a goal and the state of affairs which the goal maps onto. The goal is critically tied to a person’s intention and perceived experience, while the state of affairs is objective. And only goals are significant, because they’re a part of the person’s experiences, and the actual state of affairs is not necessarily available to the participant.

We can postulate that the person would, if they entered the machine, lead a happy life. What we can’t postulate is that the person would KNOW they would lead a happy life if they entered, or even that it would be reasonable to believe it, because of the circumstances of their waking. If we were given the same knowledge as he, then we couldn’t advise him to re-enter the machine. Because he would run the risk of future rediscovery of this world-crushing incident.

Now let’s presume that Joe is sound of mind, and change the experiment slightly: Joe was born and raised in an ordinary life, and was offered the opportunity to enter the machine, and is assured that he will never wake. If he is sound of mind, the outcome would be the same, the difference being that the negative consequences are provided by Joe’s imagination, and not through firsthand revelation.

A clever interlocutor might say (as Brian Berkey did recently), “Aha! But what about our obligation to know? It would seem that insofar as Joe doesn’t know that his future in the machine is happy, he would be in violation of his agentic duties!” The obligation to know can be defended radically, as with W.K. Clifford, who wrote: “it is wrong always, everywhere, and for any one, to believe anything upon insufficient evidence”. It may also be defended modestly, by saying something like, “Believing in the truth tends to produce good, but not always”. I support the latter sort of view, because of the ‘dying mother’ example we encountered in the promise-keeping objection.

Second, the Nozickians are the ones fighting an uphill battle on the epistemic question, because it is manifest to the waker that the possibility of waking up again and again in the future is very real, given that he is presently experiencing wakefulness. The best evidence available to Joe tells him that he is, and in the future will be, in deep trouble. Asking a person to re-enter the machine is like asking a refugee to withstand another war on new soil.

That would be wrong.

2. Another interesting avenue for escape arises through the examination of the self. It may be that we need to understand the notion of the self as (at the very least) the coherant connectedness of memory and consciousness across time. Recall that Joe’s memory would be wiped if he were to enter the machine. If so, then he would be cutting ties to his past self. In a sense, the Waking Joe and the Sleeping Joe would be entirely different people. I don’t know the extent to which this consideration makes much of a difference to the Nozick objection, but ultimately, it has some impact.

8 and 9. The axiology objections.

At first glance, Harwood’s essay provides us with two objections as if they were separate. They are: (8) Utilitarianism wildly overstates our duties to animals; and (9) Utilitarianism panders to bigots and sadists. However, in fact, they’re just variants of the same confusion.

The first argument is a rephrasing of the old accusation, that utilitarianism is the philosophy of pigs; for utilitarianism seems to provide no distinction between the “higher pleasures” (presumably, drinking tea and listening to NPR) and “lower” ones (which don’t require enumeration here).

I think that this argument is propelled by the intuition that certain pleasure-seeking activities are evil, sinful, etc. Some acts really aren’t that great to perform. Still, the entire point of utilitarianism, from Bentham’s view, was to show that some acts tend to produce less happiness, and some produce misery in others, and so they are to be avoided. So certain “lower” acts would produce less happiness, and so, should be avoided.

Mill wasn’t entirely satisfied with Bentham’s quantitative view. Thus, Mill famously produced his doctrine of qualitative utilitarianism, whereby particular values are better or worse than one another because certain values somehow become a “part of” happiness with experience. The rank-ordering of values can be accomplished on the basis of opinions from competent judges, who have tested this and that pleasure and can rank them one after the other. Mill did not exactly disagree that Bentham had produced an adequate reply, but sought to supplement Bentham’s argument by showing the place of particular values, in order to make the doctrine seem more palatable.

I think Bentham’s original account was satisfactory. I must confess to being mystified both by Mill’s account, which contains outright bizarre claims (what does it mean for a thing to be a “part of” happiness?), and by the accounts of those critics who carry on with objections which are not only explicitly dealt with by a classic utilitarian, but are dealt with by the original utilitarian himself.

Why, though, is it better to be Socrates dissatisfied than a pig satisfied? First, I wouldn’t quite go that far; if asked whether I would rather be a tortured man or a happy pig, I would probably and quite naturally reply, “a happy pig”. Such exaggerated examples, which are meant to shock us into disavowal of a doctrine under scrutiny, don’t quite have the rhetorical force that’s being looked for when they make the case against them quite so costly. I think that the aphorism, though, could be rephrased and agreed to, if we were to say that “it is better to be a blasé Socrates than a happy pig”. Second, with the doctrine of enjoyment at our disposal, we can say that the person is able to have more experience of happiness than the pig is able to. Third, we might say that the human being is more capable of discerning pleasures than the pig, which would both mean that conscious pains are more sharp and horrible, and conscious pleasures are greater.

I think part of the confusion arises over utilitarianism’s commitment to the thesis that happiness is the only intrinsic value. Sometimes, this point is glossed over by critics, who declare (as Harwood does) that “utilitarianism insists that there is only one moral value, satisfaction”. This is not true. Rather, from what I understand, there is only one thing of intrinsic value, and this thing applies to explain the genesis of both moral and non-moral values. There are plenty of instrumental values, and as we’ve seen (with Bentham), they may be rank-ordered in order to produce moral guidance on the basis of however they produce happiness.

Similarly, we are told that the pleasure of bigots and sadists are not of intrinsic value, and so, hedonism is mistaken. However, I deny that the pleasure of any animal is without intrinsic value. But I declare that this proposition, when considered in context, amounts to nothing; for the worth of particular kinds of acts are evaluated separately from the worth of the happiness which they originate from. The experience of pleasure of the lion who eats a baby, and of a bigot who protests the funerals of hate crime victims, are activities that produce intense and personal misery in many others. They are immoral and unjust. But it is no contradiction to say that the pleasure of the sadistic act has intrinsic value, and then to say that it is grossly immoral. All that is asked is that the reader understand that that which is valuable is not necessarily that which is morally significant.

“Unsound examinations…” series: part 3

/// What follows is a peice which presents a series of examinations of utilitarianism from Harwood’s seminal essay, “Eleven Objections to Utilitarianism”, along with my demonstrations of how these objections are unsound. Previous installments can be found here and here. I apologize for the length. ///

5. Average and total utilitarianisms produce absurdities. Now we come to what are, I think, the single most powerful arguments against utilitarianism. They arise from the desire to answer the question, “how exactly is a society’s state of happiness calculated?” We have at least two answers, called “total utilitarianism” and “average utilitarianism”. But both seem to produce absurdities.

5A. Total utilitarianism tells us that we calculate a world’s happiness by adding up the happiness of each individual member. Take a world of four people: a, b, c, and d. Each one has a certain amount of happiness (hedons) on a scale of one to ten, where “one” means “utterly miserable”, “five” means “so-so”, and “ten” means “bliss”. Reputedly, this is the view which classical utilitarians like Bentham had.

But this view has interesting philosophical implications. Let’s also say that these people in this world, as they are examined in a particular scratch of time (say 20 years), live in a post-apocalyptic landscape. Each person is miserable: for the sake of argument, let’s say that each has only one hedon, which means the world has four out of a possible forty hedons. The theory would suggest that reproduction would increase happiness, and thus, be mandatory, even if the child conceived would be doomed to a hellish world. The drawbacks are obvious. The duty to copulate seems wrongheaded on the face of it, since it is seemingly increasing misery, not pleasure. And it would ultimately recommend overpopulation, since each new baby would increase happiness just that much more; but in fact, it would just be a multiplication of misery.

Harwood offers some interesting replies to the overpopulation objection. “In real life, we cannot jam the planet full of people and expect to retain enough control of the situation to maximize total satisfaction. First, the more people there are to satisfy, the harder it is likely to be to satisfy them. Second, a world where everyone ekes out a life barely worth living is likely to be unstable, presenting a great danger of disease a chain reaction of catastrophes…”

These are fairly good replies, I think. But their power is restricted to the ‘overpopulation’ objection. We need more than that. The core of the objection, it seems to me, is that there’s something wrong with condemning one’s child to live in a horrible world. In this vein, I can supplement Harwood’s account with three more replies. One I think is good, and the other two are bad.

First, the sustaining of life opens the door to future improvement (a long-term consequence). But this is problematic, because the scenario suggests that something really has been done right in the time frame being analyzed, yet the treatment just mentioned suggests that the goodness of the situation is pushed off to the future. Surely these are incompatible.

Second, the objection might be interpreted more strongly. It may want us to imagine a new world where not only is the actual state of affairs poor, but moreover, it would be impossible to improve the states of affairs. This would be a foul situation indeed. However, again, it presupposes an evil scenario in order to make a point about the good, confusing our understanding of both. The absurdity of such techniques lies, in this case, in the notion that human beings cannot, and do not, by their nature, engage in creative striving to improve their lives. If the situation were such that no creative striving were possible (i.e., if all shelter were measly, all beneficial technology impossible to produce, etc), then once again, we should not be surprised that our intuitions are scandalized, since the very world under examination provides inescapable moral horror. Still, if we were to grant that the scenario is uncooperative, and not a candidate for defeat of utilitarianism, it still runs into the same problem as the first objection. Our concern is about the effects of birth in hell upon the world’s level of hedons, not with the future conditions. And the account just seems to get something wrong if it says nothing about that.

Third, perhaps it’s the method with which we’ve described the situations which is in error; maybe it would be better to register happiness and misery on a positive-negative scale. In which case, the happiness of the hellish world of four would be -40 out of a possible 40 hedons. This new characterization would suggest that the introduction of a baby into the world would decrease utility (-50 out of 50), and thus, be wrong; and it seems to capture the language of the situation in a much more felicitous way. There seems to be no problem with this new interpretation. The objection seems to have been defused.

But, getting back to the original intent of the objection, what if we revised the scenario under the new description? In this case, the world would have 4 hedons on a scale of -40 to 40. A so-so world. Are people then compelled to produce offspring to make it immediately better? It would seem so. I have no particular intuition or care about this result. It seems acceptable enough. But other questions do arise from having made this elaborate philosophical journey.

First, all other things equal, we have assumed that, for the sake of demonstration, the people of a world (a, b, c, and d) had only one value of happiness assigned to each for the duration of the time period under examination. Thus, (a) has one hedon, (b) has one hedon, and so on. But this is, of course, foolish. Peoples’ moods change all the time. Second, we have also forgotten all the contingencies related to childrearing; the joys of parenting and of adolescence. The very postulation of some significant act, also demands that we factor in the hedonic consequences of the act. But we haven’t, in these cases; and that makes them ineffective. Third, in order for the former hellbound scenarios to make any sense, we would essentially have to pretend that the world was inhabited by miserly mannequins whose happiness is not contingent upon personal expectations of the world. But in many cases, a world populated by persons who had gotten used to certain conditions, would adapt to those conditions. This is both an evolutionary blessing (in the sense of it may protect the population’s eyes from gazing across the true and terrible vistas of their world by comparing it to other, better possible worlds), and a damnable curse (since, as any activist will tell you, the banality of evil and the amorality of apathy are often the products of the merest lack of imagination for an easily attainable and better life).

With all of the above considerations in mind, the reason why I ultimately find total utilitarianism dissatisfying is that it fails to take into account a very significant fact: that, for any state of affairs, there is a pre-arranged amount of possible hedons that the world could have, given the number of persons. What I mean is, I have misleadingly presented the data in terms of 4/40 hedons, or somesuch, but in fact, total utilitarianism only cares for the actual amount that occurs — 4 hedons — and doesn’t seem to care in its numerical analysis about the number of possible hedons involved. But it should make a difference whether or not the 4 hedons are there out of a possible 40, or 60, or 80, because that tells us, in at least abstract and restricted terms, how far away from achieving utility we are at; and that constant striving is a characteristic of utilitarianism. This revised view doesn’t just tell us the state of affairs at some particular time; it tells us how far off we are from the mark, and so, seems more acceptable in the abstract.

The outcome of a stronger analysis, I think, is that while total utilitarianism cannot be soundly accused of absurdity, it may be lacking in other ways.

B. Average utilitarianism is our second alternative. It makes up for the deficiency noted just lately by taking into account not just the sum of hedons from the aggregate of persons, but also by factoring in the population size. Thus, in a world where there are four people (a,b,c, and d), where (a) has 3 hedons, (b) and (c) have six apeice, and (d) has one hedon, our analysis would say that the world has, on average, four hedons (16/4).

The objection to average utilitarianism is that it seems to suggest that the world would be happier if (a, b, and c) were to gang up on (d) and kill her, thus increasing the average to five hedons. This, Harwood suggests, is a decisive objection against average utility.

This is deeply unconvincing for the same reasons that have been addressed in previous posts: it relies on falsehood. The reason why we follow rules is the same reason why we keep promises and the same reason why we don’t harvest organs from the living: because human life is oriented significantly around trust. Indeed, I would go so far as to say that trust is an incorrigible value, along with agency (as we have seen). To commit cold-blooded murder of another human being is to destablize relations of trust in a community. Murder decreases happiness for the survivors.

An analogy might help to illustrate. A woman has an affair with a married man. Soon afterward, he leaves his wife for his partner. The partner dumps him. He asks her, “Why?”. She tells him: he cannot be trusted. He’ll just cheat on his partner, too. It’s not worth her while. If they had all made better decisions, they could have been happier; and most of wisdom comes in understanding these game-theoretic lapses of insight.

It does not matter who the person is that dies, it does not matter if they are a pariah or outcast. The integrity of a social system can be understood, without exception, by examining how its members consciously treat its outsiders. This is not just a quaint philosophical musing, but a fact about human group relations. Reciprocity creeps inward, eventually: a certain comfort and feeling of entitlement that is associated with the enactment of certain punishments infects the norms in one’s own life and community. One cannot express surprise when a violent cop turns out to be abusive at home, because when a person’s personality is geared towards violence, its outlet is of little concern to him.

Granted, the human mind is magnificient in its ability to compartmentalize various duties and identities. Thus, what I am prepared to do to a stranger, I might not do to a friend. Moreover, it seems that some polities which are externally aggressive – i.e., contemporary Israel – are constituted by a societies which have relatively low rates of violent personal crime. These facts seem to give the lie to the bold statements I made in the previous paragraph. But these are facts which traffic in human frailty involving a state of affairs that is several times removed from everyday experience; people don’t usually identify with the social systems they belong to, they only identify with those systems which give them identities. This is Hannah Arendt’s ‘banality of evil’; it is what I have called a derelection of agentic duties; and it is not virtue. Still, in this situation, reciprocity might not creep inwards, so long as relatively innocent persons remain ignorant of violations of their trust. All I can say, in these instances, is that only so much of an imbalance can be tolerated or legitimated by any society without reinforcing either anomic or xenophobic conditions, and empowering institutions (the church/media and the nation, respectively) that feed upon those conditions. Such things are not conducive to utility.

None of this is to say that life is of incorrigible value. (For example, passive euthanasia is still morally permissible. It is an act of mercy to relieve a voluntary person of incurable and intense pain.) It is just to say that only through the protection from misery, short-term and long-term, that anything of that sort can be entertained.

6. Rule utilitarianism is incoherant or redundant.

Rule utilitarianism is the idea that at least some actions are justified by the rules which they are driven by, and those rules are in turn justified by the principle of utility. Harwood points out four objections, each of which either conclude that rule utilitarianism is either incoherant or redundant. It is not necessary to go into the details of all four objections, because they at core reduce down to two mutually exclusive possibilities: incoherance or redundance. (They are mutually exclusive because any particular aspect of a theory cannot both be criticized of both being redundant and being incoherant at the same time. Redundancy is mere repetition, and repetition is logically sound (though trivial), while incoherance is illogical.)

1. Rule utilitarianism is, indeed, redundant: it is usefully redundant. Take the utterance, “I see an animal”. If I were to utter it, and then right afterwards say, “I see a bear”, I would be committing redundancy. However, one utterance would be more specific than the other; it would carry a bit more information. The former comment is akin to rule utilitarianism, the latter is akin to act utilitarianism. However, in the end, it’s the latter which is most correct.

Harwood brings an argument to bear on the matter which formulates the most plausible form of rule-utilitarianism as if it were an absurdity. His is the objection based on extensional equivalence. Harwood explains that two moral systems are extensionally equivalent if “they always agree about what we should do in any case”. If rule-utilitarianism were extensionally equivalent to act-utilitarianism, Harwood suggests (following R.M. Hare), it would not seem to reconcile our ordinary moral beliefs with the propositions introduced by utilitarianism.

But what rule-utilitarianism really provides is an emphasis upon a certain bit of information about human social reality which might be overlooked otherwise: namely, that humans are meaning-makers, and to a large extent, are rule-following animals. Act-utilitarianism can recommend rule-following when we put it in practice, but the point needs to be driven home to would-be detractors, so we invent this thing called “rule-utilitarianism” to clear up any lingering confusion.

Harwood’s most interesting comment on this score comes at the end of the section, when he writes: “…if a rule really were so useful that its adoption would maximize satisfaction, then act-utilitarianism would require us to do the act of adopting that rule and taking that rule to heart”. This is plausible, and it says some things that are true. But it suggests that absolute rule-following is mandated by utilitarianism, and this is wrong.

2. One of the most excellent features of utilitarianism is that it specifies, not just our rules, but also the exception to those rules. Thus, when confronted with the question: “what are the acts which ought to guide my life?” We answer: those which are in line with rules which are compatible with utility. And when confronted with another: “What are the exceptions to the rule?” We answer: when the violation of the rule would maximize utility.

3. A third question would be, “What about rights? Isn’t the idea of a right that it admits of no justifiable exception?”

A right is a very special kind of rule which functions much in the same way as a stop sign. Whenever stop signs are effective, it is because they are respected without question. Even a car who sits idling in front of a stop sign at midnight, with no police around to observe him cheating, obeys the law in order to maintain his good habits, and to avoid attention from his peers. When stop signs are violated, the person has a chance of being punished. Sure, the threat at the level of the individual seems measely. But the necessity of the law is such that, with each flouting of it, the law itself becomes less and less powerful. In the same way that the laws of traffic become moot when a traffic accident makes all travel impossible, the flouting of a right threatens the very potency of rights in the first place.

What rights have in common with stop signs is that there is no other way in which either could function except through near-absolute regard, and through true absolute renown. Essentially, what’s especially significant, and which separates a right from a mere law, is that rights operate in the way they do, because there would be no other way in which they could operate. The difference between them is that there is direct moral significance to the goal of a right which is not present in the laws of traffic. Any violations must either be in terms of established exceptions, or barring that, as a last resort in the name of utility proper.

[Edit: It is worth noting, and emphasizing, that the act of violating a rule is not in and of itself significant to utilitarianism. Rather, among other things, it is the habit which offends the principle of utility, since it guarantees more than one future act, which will (presumably) raise even more consequences besides. It would not be much of an exaggeration to say that, when it comes to understanding rules, the act is just a means of observing the habit at work.]

I say all of this, purposefully using a hedge-word like “near-absolute”, though I full well know that the language of rights has an air of absolutism about it. This is, at first glance, because rights must be treated as absolute, for the same reason that Sherwood Forest must be treated as haunted. The consequences of hedging and the use of hypothetical phrasing may be unhappy. Absolutism, like a haunted forest, has a quasi-mystical quality to it, and inspires more awe than tales of drunken rascals hiding in the bushes.

The former comments ought to cause anyone who pledges allegiance to the publicity condition to twitch. I have been sardonic enough, I think, to make twitching justified in every quarter. But I must also grant that my comments do not seem to be kind to publicity. I will have to have more to say about this as one of my last topics of the series.

[Edit: I think I need to say a lot more about rights.

Rights can be analysed across at least two dimensions: at the system level, and at the level of the individual. The system-level is characterized by a bifurcation between nominal and defacto rights: if you violate a person's rights in fact, you do not necessarily alienate them from the right in name. By contrast, an individual-level of analysis is characterized by a collapse of this distinction. To violate a person's right, is to alienate them from it.

We understand the notion of a rule as if it were non-defeasible: that is, as if it always applied to the letter except when certain noted exceptions amend the law (call them RULES). By contrast, we understand mid-level principles to be susceptible to weighting (call them PRINCIPLES). Act-utilitarianism's treatment of rule-following behavior may make room for RULES, but its list of worthy RULES will be slender and subject to qualification. For it, regular everyday rules act as if they were things to be weighted against one another, as PRINCIPLES (thus, for instance, the duty to not engage in civil disobedience may be weighed against the duty to hold solidarity with justified activists, and come out in favor of the latter). Only rights could be given the nominally infallible status that we're looking for.

However, it's not entirely clear what the de facto status of rights are: it will depend on our chosen level of analysis. In other words, it is not immediately clear to me what the utilitarian must do in an emergency no-win scenario, on pain of incoherance. Take an emergency scenario, where a person must choose to either kill an innocent person and save five others, or refrain from killing the one and letting the five die. At the level of the system, if the person chooses to kill the one to save the five, they chip away at the de facto right of the victim without necessarily affecting their nominal right. It is worth emphasizing that, at the level of the social system, the utilitarian may claim that causing the death of the victim is of equally negative consequence as letting five others die, because at that level, the de facto/nominal distinction holds up to scrutiny; and this distinction gives us two models of the best possible outcome. The drawback is that they would also have to be committed to the notion that violation of rule-following behavior would produce equal or more long-term misery than the death of the five, which is only feasible if one has a romantic view of things. Moreover, conflicting advice between defacto and nominal senses of 'right' seem to make the theory incoherant in an irresolvable way.

Meanwhile, at the level of the individual, the nominal/defacto distinction seems paltry. Invocation of a right without fear of consequence seems hollow. And I must confess that, though I once thought that the system-level of analysis could be defended in a robust sense -- that the breaking of a right was, in some sense, "world-breaking", either as an affront to integrity or as a catalyst for social systems failure -- I now see that as a romantic vision of the world which must be deflated by a more realistic perspective. I find the system-level sort of analysis, so long as it is taken for granted, to be less plausible than the analysis at the level of the individual. For it seems ridiculous to say that a serf in the middle ages, who suffers from every pox and plague and horror, and who is alienated from the kind of modernity which would make it even possible for rights to be protected, stands unalienated from his rights. So much the worse for rights, it seems.

Graph!

A solution at the level of the individual might be found by investigating the doctrines of positive and negative responsibility under it. As we have seen, because of the incorrigible value of agency, we can assign a slight difference between the two: causing harm is slightly worse than letting harm happen. Allowing harm to happen is a violation of one of one's duties, which may have grisly results. A possibility of argument which I would like to leave open is that, while rights do sometimes have something like the character of prime-facie duties -- that is, it is susceptible to weighting -- they only have this quality in situations where the agent will have to assume negative responsibility for some future behavior. By contrast, rights have the status of near-absolute rules if and whenever the agent shall assume positive responsibility for some potential action: an actor does not seem to be able to ever plausibly knowingly will the violation of a right and be moral. In this sense, "doing" is more plausibly constrained by rules (to the extent that we value agency), and "allowing" may be constrained by either rules or acts, depending on utility. The difference is that rights will tend to have more weight in the former than the latter.

This runs directly out of the real insight behind the incorrigible value of agency: namely, that rights begin with me and my actions, and emerge from there. There is no collective agency, there is only individual agency, and I must act according to what I, as an individual, may know. This position is consistent with utilitarianism, if we understand that the greatest happiness for the greatest number does not compel one to prefer one option over the other when their relative ranking as perveyors of lesser and greater misery are hidden from the actor's eyes. And the consequence of flouting a rule, because of our individual conscious minds, is largely opaque to us at the level of the system.

There is, however, a limit to the extent to which utilitarianism can tolerate this flexibility. If a great calamity were to compel the violation of a right, and though the consequences of violation of the latter is unknown while the consequences of violation of the former are known, then all virtue rests on moral luck. All that may be held to justify an action is the conviction that obeying the rule will tend to increase happiness, and not otherwise, though no knowledge enters the fray. But in this case it seems that the subjective utilitarian can justify themselves one way or the other, and blame it on the limits of their agency. I think this is mostly intuitive.

I have lingering worries that my commitments to liberalism have clouded my judgment, and made my resistence toward appealing to the system-level of analysis premature. I want to emphasize two points in this regard. One: I remain committed to the view that things can be analyzed at the level of the social system, so long as our ambitions are restricted to terms of trust (and power). Two: so long as we strive towards realism and not romanticism, if we find that the system-level of analysis yeilds wildly different results from the individual-level of analysis, then we have reason to redouble our efforts to find a lucid picture of the social world which draws upon the relative contributions of both. This is not necessarily "incoherance", any more than the visual data provided by my left eye is "incoherant" with the data provided by my right eye; they do not cohere only insofar as we fail to understand the two well enough that a synthesis can be developed from both. In the meanwhile, though, we must settle for individual-level, and seemingly, to act-utilitarianism, because we are naturally endowed with knowledge at the individual level which we lack at the system level. This does not excuse us from our obligations to learn more, of course; one day, when social science is more mature, we may have a richer complement of system-level insights that may guide our actions.]

Un-explaining the Knobe effect

Over at X-Philosophy, posts are centered around the Knobe effect like tornados around Kansas. The Knobe effect is essentially the idea that moral intuitions muddle with peoples’s attributions of intention to the acts of others. (I’ve offered some philosophical objections there previously. Rise from your grave, Kohlberg.) For various reasons, the effect is quite puzzling.

Recently, Clayton has attempted to explain the Knobe effect. I would like to respond to it. Before I do, I should warn the reader that my commentary here will probably seem like unintelligible abstractions unless they take a gander at his paper first. Luckily, Clayton’s paper is short, relatively self-contained, and straightforward.

Clayton argues that the Knobe effect may be understood by way of two distinctions. The first is in terms of selective/collective treatment of reasons. A person may evaluate a reason for acting on a case-by-case basis, or they may evaluate them all at once. [Implicitly, we know that reasons can either recommend a certain action ("pro"-reasons), or they can provide reasons not to act ("con"-reasons).] The second distinction is in terms of conformity/compliance. Conformity is when a pro-reason is merely consistent with the greater goal, and compliance is when a pro-reason provides impetus for the greater goal. The conformity/compliance distinction only applies to reasons which have been examined selectively (though it is not immediately clear why).

He seems to argue that, for a case in which the goal is decided in favor of some pro reasons, one cannot treat con reasons selectively, because the cons taken selectively would have provided motivational weight against the goal (thus undermining the motivation to pursue the goal). So a person must treat con-reasons collectively; thus, there is no conform/comply distinction in such a case. “To respond selectively to them, she’d have to conform or comply with some of [the con-reasons] without conforming or complying with the others… Blight could not conform to their demands without giving in to them and deciding against starting Project Z.” Moreover, the conform/comply distinction is what explains the Knobe effect for the Benison case; some reasons (care for the environment) take a back seat relative to the overall goal, but are consistent with it, and so, conform to it without complying.

I want to make two replies. One is to cast doubt on whether or not a selective treatment of con-reasons collapses the conform/comply distinction. The other is to cast the problem in terms of the relevance of goals with subgoals in terms of apathy and defiance.

1. Maybe Clayton means something specific about “selectivity” which I haven’t understood. But from my first reading, I’m not at all clear on why it is that, from a Humean standpoint, the consideration of con-reasons entails that they would definitely motivate a person in a con-direction. Reasons don’t necessarily provide motivation. They provide reasons, which may be taken seriously, or may be dismissed, at the whim of the listener’s fancy. So if Blight selectively treated the con-reasons, then it wouldn’t necessarily matter; she doesn’t have to take them seriously, she just has to consider them. What Clayton might mean is that Blight be selective in the sense that she in fact accepts some reasons, and in fact denies others; but that’s not a comment on selection, which is a process, but rather upon an outcome.

2. It seems to me that a person may cite any relevant condition or consequence which they were aware of at the time of the action as a reason for acting. For present purposes, relevance has to do with the place of action within a wider chain of goals and subgoals. It also seems to me that it is a poor thing to fail to attribute to a person even those minimally relevant things which they have known at the time of the action; and this is what Knobe’s subjects fail to do in the Benison case. So something genuinely surprising seems to be happening in their responses, at least for me — or, is not surprising, then outright wrong.

Relevance comes in degrees. So, if I drive my lawnmower just to annoy my neighbor (the manifest consequence), but fully expect that I’ll cut the grass in the process (the latent consequence), then there will be a rich series of motivations and goals behind the goal of “annoying my neighbor”, perhaps involving an ongoing slapstick feud, but the connections to “cutting the grass” will be weak (it is a mere means to the end). Using Raz’s language, as presented here, compliance would seem to describe the conditions which are more relevant to an action, and conformity would describe the conditions which are less relevant.

If we admit that mere conformity constitutes an intention, as I would like to, then we’re up the creek in our examination of the Knobe effect, it seems, in the Benison case; for while Benison’s consideration of the environment conforms to his overall decision, his de facto intent to do well for the environment does not register with those people who examine the case. And the Blight case may be selective, as I’ve suggested in (1), but clearly it involves neither conformity nor compliance to environmental protection. Rather, it must be characterized as either apathy or defiance towards that subgoal; and it seems that Knobe’s subjects want to treat apathy towards reasons (at least in this case) as intentional. I don’t immediately see how the conformity/compliance distinction helps us in the Blight case — especially since the distinction seems irrelevant in the Benison one, where we are supposed to expect it to do some work.

There may be a way out of this problem if we postulate an ambiguity in interpretation. I might attribute the Knobe effect in the Benison case to an implicit tendency on the part of Knobe’s subjects to examine intention only above a certain threshold of relevance, because it seems more useful to them to interpret the words that way for the purposes of the discussion. Compliance is the theory of intention which people are attracted to, for moral, epistemic, and everyday purposes. (Morally, to make the distinction between doing and allowing; epistemically, because we don’t know the deep-seated knowledge in a person’s mind.) In other words: in the Benison case, our conversational purposes as readers are not morally exhaustive, as our attention is not morally charged; we are focused only on the compliant acts, and unimpressed either way by his amoral apathy, we have no moral desire to interpret any care for merely conforming reasons. But in the Blight case, our conversational purposes are entirely moral, since it is a morally charged issue; so we focus both on her intentional apathy and bad compliant acts. In this way, moral interest acts as a kind of radioactive dye which lights up areas which would otherwise have been hidden. It follows that if we were to ask someone with a plausible and fully-formed moral theory, we would find that they would be willing to attribute some intent to help the environment in the Benison case, although they would likely take pains to say that he’s not behaving virtuously or somesuch.

In some cases, like the Blight case, the subject is aware of certain conditions but fails to give them motivational weight in a decision, such as in situations involving carelessness. I want to require, in moral cases, along with Knobe’s subjects, that apathy to some peripheral condition be considered a part of their intent, in order to explain their decision adequately. Here is the knowledge of so-and-so; here is the flouting of so-and-so; thus, here is the intention to get such-and-such done, in the context of this wider web of goals. I also want to require that conformity be understood as an aspect of a person’s intent.

I don’t believe that a reason must be a possible defeater in order to be relevant to an explanation of a person’s intent. It may be the case that some description does not and would not have the power to change an action, given the dispositions of the person, their wider goals, etc., but that doesn’t mean that the description is explanatorily idle. I disagree with the claim that, “When we consider those side effects or pros we don’t say the agent brought about intentionally, we recognize that the agent wouldn’t have changed course had those pros not favored her decision.” For sometimes it’s precisely the disposition to suppress the possible motivating content of a particular peripheral goal which is intentional (so long as the subject is consciously aware of doing so). And, anyway, explanations need not be tossed aside as “idle” just because they aren’t the primary moving parts in some phenomenon. To claim so, is to pretend to know the whole story about causes (especially with respect to matters of intent), and that’s not something that anyone has lisence to claim.

I think all of this is supportive of Knobe’s interpretation of the effect, in a way. It’s just that it relies on the pragmatics of the situation more than a principled examination of intentions.

“Unsound examinations…” series: part two

/// What follows is a peice which presents a series of examinations of utilitarianism from Harwood’s seminal essay, “Eleven Objections to Utilitarianism”, along with my demonstrations of how these objections are unsound. It is continued from here. ///

2. The hero objection. The second objection is that utilitarianism removes the possibility of supererogation — that is, acts which are far beyond the call of duty. Harwood’s example is of a retreating soldier who risks his own life to save that of another man. Because utilitarianism is an optimizing doctrine, which demands that we act to achieve the maximum amount of happiness expected, then noble self-sacrifice is our duty. There is nothing “beyond” it, because it demands the best in the first place.

Harwood’s reply to this objection is that sometimes the choice to do an altruistic act will produce the same amount of happiness as choosing not to, and so utilitarianism has nothing to say about which ought to be chosen over the other. This may be a fruitful line of defence, I think, but it demands explanation and qualification. In some cases it may work, but it is not obvious how it would work in the soldier case. It would seem that there is no tie between the altruistic act (saving the friend) and the egoistic one (both are killed): for it seems obvious that the former produces more happiness than the latter. So we are left with a puzzle of interpretation. How could Harwood’s remarks be true?

Two things are important to observe before a reply can be made. First: there is a difference between subjective and objective utilitarianisms. The former says that you ought to act in order to achieve the maximum amount of expected happiness; the latter says that you ought to act in order to achieve the maximum amount of actual happiness. Second, this objection is almost identical to the first objection — it is a question of whether or not actors have a choice in their behavior. So we need to revisit the treatments given in the former section.

We cannot apply the Enjoyment proviso here, since the soldier case has nothing to do with enjoyment (a luxury) and everything to do with emergency action. We may, however, apply the epistemic doctrine, and say that the outcomes are uncertain. Any of three options may have been brought about: the death of both men, the saving of one and not the other, and the continued living of both soldiers. The actual objective outcomes are far from a tie, but the possible outcomes have, on the face of it, equal risk of happening: the bullets are flying, etc. When a person takes a risk in favor of utility, where there is subjectively equal probability of occurrence among options, and where the outcome is successful, we may call that a weak kind of “supererogation”, because all subjective utilitarianism asks you to do is maximize what you predict to be the best outcome, while you’ve gone further and maximized an outcome beyond what you could have known.

Thus, in a way, subjective and objective utilitarianisms cohabitate. Acting for subjective utility is your duty; but acting for objective utility can be virtuous.

In this perhaps disquieting sense, supererogation is a matter of luck. This itself may show a kind of insensitivity to character which the contemporary virtue theorist would find wanting. But a defence of virtue need not cash in solely on supererogation: it may, simply, look to essential virtues. For example, the creative striving towards achievement of preventative and agentic duties would be other examples of virtuous (though not supererogatory) acts and abilities.

[Edit: The above comments may read as though they were a concession. If superergogation were merely a matter of luck, then it would not seem to be supererogation at all. I am prepared to agree with this outcome, though still, I think it perfectly feasible to find stand-ins for the concept of supererogation in the apparatus that has already been laid out. Virtue provides many of the same intuitions we're looking for, without forcing us to be committed to the absurd idea of going beyond the optimal.

As I indicated, we may speak of virtue as skill with respect to agentic duties, and suppose that those who have developed social and moral knowledge and reasoning are those who seem to satisfy the description of "going beyond the call of duty". One important agentic duty, worth heavy consideration, is the obligation to grow with respect to one's socio-moral skills and knowledge when they have the opportunity to do so. A person cannot possibly be held accountable as an agent for those things which are beyond their skills to infer, though in general we may reasonably expect and demand gradual moral growth when all other things are left equal.]

3. The justice objection. But some would say that the maximization of happiness is not, at a fundamental level, just. This accusation can be made in a few ways: a) by appeal to retributive justice; b) by appeal to distributive justice.

Harwood sums up the retributive justice objection succinctly: “Utilitarianism is often criticized for failing to treat retributive justice (giving the guilty and only the guilty the punishment they deserve…) as having intrinsic moral importance.” For the distributive justice objection, we may imagine a case where a substantial minority of persons is treated with disrespect, must live in squalor, and so on, so that the greater majority may live in wealth and peace.

Both of these worries can be replied to with a single argument, because they are both based upon the failure to treat long-term consequences and social consequences seriously. For purposes of completeness, though, I will reply first on the basis of philosophical clarity, and then substantively.

To be clear: utilitarianism treats happiness, and only happiness, as being that which has intrinsic value. However, it doesn’t necessarily say anything, so far as I know, about “intrinsic moral value”. The very name – “utilitarianism” — is meant to suggest that morality is instrumentally conceived, and that there’s nothing intrinsic about the moral values it endorses. Indeed, from what I understand, there is no such thing as an ‘intrinsic moral value’ at all, by the utility standard. Thus, the objection’s aim is true. But it is hardly motivating; this portion of the argument, when taken alone, succeeds only at making us aware of an explicit fact about the doctrine, and doesn’t give us a reason to pause, especially when this part of the doctrine seems docile. Moreover, if one wanted to say, for example, that family, or life, is of intrinsic moral value, then we have the ability to rejoin by saying: “These things are not of intrinsic moral value, but incorrigible moral value”.

Substantively, utilitarianism has been accused of getting on the wrong side of morality. Take the case, for instance, where a doctor is left to decide whether or not to harvest the organs of a living, perfectly healthy hobo, in order to save the lives of five other dying men. According to the detractors, utilitarianism requires us to slaughter the hobo to save the five men. This is just one example. Many cases of this kind have been formulated in order to show that utilitarianism gives no regard for the innocence of the man to be slaughtered.

I think it’s obvious that, all other things equal, the hobo cannot be morally slaughtered to save five dying men. Any utilitarian who would affirm that the hobo ought to be killed would be pathological.

Luckily, though, as we have seen, agency is an incorrigible value; the life choices of the hobo is thus of pressing relevance to us. This is brought home if we again consider the social consequences of murder for short-term gain. Any social system which tolerated such a kind of act, would be a social system which in the long-term would fail to maximize utility, in the sense that it would be a Hobbesian hell to live in. Thus, the distinction between long-term and short-term consequences answers this objection.

The objection from distributive justice fails for the same general reason: it fails to take into account remoter effects. The enslaved minority is suppressed, and the value of agency is muted, thus reducing utility.

Moreover, the objector stipulates that this is the best condition that there ever could be; essentially, that a condition of slavery is the best of all possible worlds, and there is no improving upon it. Thus, the objection is based upon what we know to be an absurdity. Their case is based upon a grossly distorted world, and presupposes facts that I believe to be just plain false, given the nature of social systems, etc.

Let’s pretend, though, that it really were the case that a condition of slavery were the best of all possible worlds. Would that be a moral world? By our standards, no; in fact, utilitarianism would seem to be just plain false in such a universe. But let those other universes have their own doctrines. Ethics cares only for guidance towards proper action, thought, and life in our universe.

This is not to accuse all theorists of constructing fantastic cases. I am not one of those people who will belittle a dubious thought-experiment just for the sake of polemical stridency. I only wished to show in the last two paragraphs that, often, there are cases which are based on the hellishness of the world involved, and our intuitions have been soaked with anxiety that arises, not from utilitarianism, but from absurd counterfactual preconditions.

But Harwood rightly notes that, while this sort of reply may be cogent when dealing with philosophical flights of the imagination, similar cases may be found in the real world which are both analogous and conceivable. So what about real-world cases which demand seemingly unjust acts? Take the case of sailors who are adrift at sea, and whose food supply has run short. In order to have a hope of survival, they must eat one of their crewmates. What does utilitarianism have to say in such a situation? First, I must point out the difference between an emergency situation and a non-emergency one; the first cases we saw (the hobo case, the slavery case) are not emergencies, but the cannibalism case is an emergency. Moreover, it is not just an emergency case, but a no-win scenario: no matter what choices are made, they will create misery (at best); the only available options are to reduce misery, and happiness is scarcely in sight.

With those two things in mind, it is my sad duty to say that cannibalism at sea is in line with utilitarianism. This is a case where the demands of fundamental justice (utility) run up against the standard deontic demands of justice (do not murder). Utilitarianism must advise the sailors to do what is necessary to survive.

Indeed, this seems to be the strongest blow against utilitarianism that I have so far surveyed. However, it is far from decisive, for two reasons. First, as noted by Grotius, in law and practice, courts of justice have agreed with the decisions of the sailors, and have allowed mitigating circumstances to relieve them of guilt. But this is a weak defence: what may be said about law and justice, is not necessarily anything to do with virtue and morality; and there are no virtues in killing and eating a dying comrade.

My second reply may not be very convincing, but it is, for the moment, all I can think of. Because of the argument in reply to objection #2, we still have latitude to say that someone who was in a cannibalistic situation, and did not know whether or not they would survive without resorting to cannibalism, and decided not to engage in it, but was lucky enough to actually be in a situation where they would in fact be saved in time, then they may be rightfully called virtuous. In a case where the person is not so lucky, however, they have sacrificed virtue, duty, and life. In this sense, to be supererogatively virtuous is to be a high-stakes gambler.

4. Utilitarianism against promises. Utilitarianism, according to some critics, does not take promise-keeping seriously enough. Thus, for example, if I promise my dying mother to leave flowers upon her grave after her death, and fail to do so, I’m not breaking a moral duty, since she will never know.

The greater objection is befuddling to me. There are clear cases where you should not, morally, engage in felicity. Let’s take another case: a woman is dying in her bed. You are this woman’s daughter. You have previously promised her that you will always tell her the truth. She asks you, “How is Dave?”, your brother and her beloved son. You have just found out that Dave died in a car accident, but the mother doesn’t know it yet. Do you tell her the truth, and let her spend her last moments on Earth in misery?

Of course not.

The “flowers” case is also unconvincing because it misunderstands human relationships. People can be understood either as personalities, or as bodies and minds in space. A personality is a meaningful entity which soaks into others through interaction, and gives us a sense of the affinities of others, their preferences, delights, mannerisms, beliefs, etc. A body (and mind) is the physical thing which creates the personality. When the body and mind die, the personality may live on in the people who have grown accustomed to it. Moreover, we never really know any bodies or minds besides our own in the way that we know of personalities. Finally, my personality may be minorly altered by my loved ones; their personality soaks into mine, in some way. My duty to my dead mother lives on because her personality lives in me, and because I have a duty to my own happiness.

I have treated here some of the extreme forms of this point, but the moderate forms seem so easily explainable by a utilitarian standard that it is neither worth my time to belabor the argument nor your time to read it. In short: promises are important; they foster trust; happy human life is social; social life depends on trust.

“Unsound examinations of utilitarianism” series: part one

In Sterling Harwood’s essay, “Eleven Objections to Utilitarianism”, he surveys a number of critiques to utilitarianism, and then examines them for cogency. Over the next month, I will summarize all of those objections, along with his answers. I will then evaluate both. During the final week, I will examine any other miscellanious objections which I have encountered and feel like addressing.

Since this is a blog, each post after this one will be in bite-sized packets of three. To anticipate: classical utilitarianism is riddled with absurdity, but utilitarianism in general – as in the body of theories which center around the principle of utility – must be a permanent feature of moral and/or meta-ethical analysis.

I. The aretaic objection: “Utilitarianism is overly demanding.” Because the principle of utility requires us to treat people impartially, it alienates us from our integrity, and forces us to examine a situation from some third-person standpoint. This a) makes duties to our friends (associational duties) impossible, and b) forces us to into the squalor of excessive altruism, where we must give away anything and everything we own (for instance) so long as doing so does not reduce our happiness to low levels.

Harwood’s treatment is fourfold.

i) The “penny saved” rebuttal. He argues that the anticipation of future horrors (i.e., of overpopulation) is reason to amass one’s wealth wisely, so that it accumulates, and so future charity will be more significant.

This seems like a very poor defence. For generally speaking, misery accumulates: protection now will reduce burdens later. The maxim, “Prevention is the cure” seems wise enough in many cases.

ii) The “suck it up” rebuttal. Harwood explains that this objection is simply a reflection of the difficulty of morality. It is simply a fact of the matter that it is hard to be a moral person. We complain about the impartiality requirement, but in fact, being moral is tough. Our resistence arises out of a weakness of will.

And indeed, there is often a time where the moralist must say, “Oh, suck it up already”, to someone who suffers without reasonable cause (i.e., in modest – but not extreme – psychosomatic cases). However, the desire to protect oneself, one’s friends, and one’s family from harm is hardly as trite as the bruising of a kneecap. Harwood is hardly taking the objection as seriously as it deserves here. Personal projects and associations seem to have a genuine moral weight.

This objection from integrity has been offered as a decisive objection against utilitarianism by famous icons in contemporary ethical theory. Bernard Williams (and to a lesser extent, Samuel Scheffler) are theorists who believe that, in some manner or other, utilitarianism as usually conceived must alienate the moral actor from their integrity. Their greivances, as far as I can make out, are that: a) personal integrity must be treated as a value, and does not play a more fundamental role at the level of producing the right; b) utilitarianism alienates the person from the option to do otherwise and still be considered moral.

I would affirm the correctness of a), but find nothing compelling in the objection. Integrity, insofar as it is morally significant, is one of those values which produces happiness. Thus, we have a means of including integrity (and associational duties) as items with moral weight. There can be no fundamental alienation from integrity if it may be included in the theory at least some of the time, so this objection fails.

(b), however, is more interesting. Take a case where an actor evidently has a very clear utilitarian duty to optimize happiness. Let’s say that Jim would increase the happiness of Sally if he bought her iced cream by amount x. Let’s also say that Jim was thinking of buying a model airplane in order to receive happiness y. The two cost the same amount of money. Let’s also say that Sally has had a bad day and that iced cream would give her twice the pleasure as that which Jim would get from buying a model airplane: x = 2y. The question is: if he bought the model plane, would that be moral?

Utilitarianism seems to say, it is better for you to buy the iced cream. Integrity theorists (esp. Schefflerians) say, you have the option to do whatever you want and still be moral; after all, we’re dealing with really small quantities of happiness, here. For them, you can make the non-utilitarian choice, and still be moral. Integrity theorists want to say that utilitarianism can provide no options in the matter, but would also insist that there really ought to be the more egoistic moral alternative (within some bounds).

The accusation is subtle. It is not that utilitarianism cannot ever tell a person to do an altruistic act; for that would be a just plain goofy reading of utilitarianism, and unintuitive no matter what ethical point of view you’re coming from. Equally (I think), they’re not saying that, strictly speaking, utilitarianism is anti-egoistic. Rather, they aim for a modest claim — they think that utilitarianism destroys the idea of moral choice, or of merely permissible behavior, especially (for Scheffler) where there are low levels of happiness involved.

We can find an excellent rejoinder in another defence which Harwood covers.

iii) The epistemic rebuttal. He invokes Kurt Baier (and, it turns out, Henry Sidgwick), in arguing that people are simply better judges of their own desires, which makes some degree of egoism acceptable.

Ultimately, this is the lynchpin which secures the defence of utilitarianism. The thought-experiment presented in (ii b) is predicated on knowledge that we don’t normally have. It should not be a surprise that a scenario which effectively postulates omniscience will produce unintuitive results.

Indeed, beyond the fulfillment of basic needs, what we know about human happiness is limited to those with whom we are most intimately familiar; and our knowledge makes any of our duties far more clear. On this view, we do have options. They arise out of uncertainty about the best means of achieving the utiliarian goal. Strike out the uncertainty, and one’s moral choices are far more limited. (This is not to suggest that having moral choice is a blessing, incidentally. Social psychology has made clear that our minds derive less satisfaction from a state of affairs when we are given more choice of alternatives.) In other words: knowledge of preferences demands familiarity.

But this is likely not enough to convince a non-believer in utilitarianism. So here is another argument that is not mentioned by Harwood. There is a difference between happiness and enjoyment. Enjoyment is the reflection upon happiness, the meditation upon it such that it produces more happiness. To enjoy one’s own personal projects is to amplify one’s happiness beyond the levels one would ordinarily have. Enjoyment is, at some level, an ad hoc choice.

Two conclusions arise: one, all other things equal, to produce happiness in others without choosing to do so, is to tacitly subscribe to a rule which says, “No enjoyment”. This will eventually, after precedent etc., fail to optimize utility. Here, of course, I am invoking rules. But I should clarify that I’m still within the sphere of act-utilitarianism. Properly understood, a rule is merely a cognitive device that governs a certain exceptional kind of act. The act is the thing we care about; rules just help us get there. In this sense, enjoyment propels happiness.

Two, in principle, an ad hoc choice is not knowable to an outsider, it is only known to the agent themselves. In this sense, it is both unpredictable and, for all intents and purposes, secret.

iv) The pride rebuttal. He argues that there is significant value to not simply feeling like a charity case.

This is true in Western cultures. But the real question is, “WHY might this be true, consistent with utilitarianism?”. It may be explained, I think, by the fact that agency is an incorrigible value – that is to say, one’s sense of self and of personal powers inevitably tends to provoke a primordial respect for agency in the abstract. In certain cultural climates, and in people whose senses of self are appropriately developed, this respect for agency may lead to a sense of dignity, and to the demand to be the power which sustains their own life. Thus, agency is incorrigible. Utility must be organized around it, because of the kind of beings that we are.

[Edit: In some cultures, such as ours, this rightly leads to a division between positive and negative responsibility. Doing a bad action seems as though it is somewhat worse than allowing a bad action. Utilitarianism has been accused of favoring a strong thesis of negative responsibility: where the bad consequences that arise out of your creative striving are equally bad as those you allow to happen. But if we take agency to be incorrigible, it will modify our moral calculations along the lines of the "enjoyment" thesis, in such a way that the wrongs associated with agency will seem more wrong, and the rights associated will seem more right.

Consequentialism is a doctrine that doesn't directly appeal to our intentions, and this has caused dismay in some readers. But with agency as a part of our apparatus, we have just enough leeway to understand how intent matters in moral deliberation.

It is easy to make the mistake of thinking that the consequences of an action are agent-external, or merely situational. But the actions of persons affect the behaviors of other persons: these are social consequences. Still, if consequentialist considerations of actor-internal factors seem ad hoc or unconvincing to the reader, I should note that the same principle applies to non-intentional behaviors as well: namely, our habits. Later on, we'll understand more about the role of rules in utilitarianism. But suffice it to say right now that the bad consequences which arise out of rule violation center in large part around our habits. If we accept this latter thesis, then it is only a short step before we accept the thesis about intentions. For both habits and intentions are agent-internal.]

UN report on human development made lucid

Courtesy of Eszter Hargittai from Crooker Timber.

The brainy brains at gapminder have produced an incredible flash tool which allows one to appreciate the surface gloss of relevant statistics on human development worldwide. My utilitarian modernist heart clicks with dull satisfaction at the progress that’s evident. Somebody clearly put a lot of work into this tool, because it’s so simple, providing straightforward comparisons between countries on relatively few dimensions.

Faith and Act (a rejoinder to Nowicki)

Along with Elizabeth Nowicki, I believe that in ordinary language we can very sensibly talk about the phrase ‘not in good faith’ without necessarily meaning ‘bad faith’. Rather, double negation phrases seem, in conversation, to mean a third in-between category. My last post was an attempt to shed some light on what features there are in ordinary language which could account for this. I concluded by saying that, while ordinary language may very plausibly and legitimately accept the third category, the law will probably not tolerate it, because the nature of the system is to render judgments on the basis of clear meanings, and this is accomplished most easily through black-and-white categories. Manfred Gabriel of L&S, in a related post (and far before mine), explained this legal Manicheanism by appealing to the action-oriented character of law. More recently, Nowicki has carefully expanded upon her interpretation of the Disney case, item by item.

The conclusion of my last post on L&S was both supportive, and cautiously pessimistic. The purpose of the present post, however, is to examine Nowicki’s proposal for interpretation of “not in good faith” on different grounds. It will veer away from language and into law and morality (to the extent that they may be separated). I have two related worries: one involves the use of the concept of “action”; the other, on “bad faith”.

Before I do those things, I first want to point out where I think Elizabeth has sold herself short. In item three, she asks us to consider the following case: “Director signs-off on President’s pay package because President is a good friend. Is this act affirmatively in the best interests of the corp./sh.? NO. This is, at the very least, an act NOT IN GOOD FAITH. Is this willful misconduct? I THINK SO. Label: BAD FAITH ACT. If reasonable minds differ, however, as to whether this act rises to the level of “BAD FAITH,” we can all agree that it is, at the least, an act “not in good faith,” as noted above, such that it is outside the business judgment rule presumption and DGCL 102(b)(7).” It seems to me that (if the description is accurate) then it is clearly, hands down, an act of bad faith. It’s true that it falls inside of the rest of 102(b)(7), presumably the “don’t act for improper personal benefits” clause; and to be safe on first blush, we might be hesitant about describing that as being a clear case of non-good-faith, since just because two clauses sit next to each other it doesn’t mean they’re identical in content (no doubt I’m just echoing Nowicki here). But logically it seems to me that the not-in-improper-personal-interest clause is indeed a member of to the “not in good faith” one, so long as we (reasonably) assume that in this context an act that is done for the sake of improper personal benefits is not, and cannot be, to act for the best interests of the corporation.

I. My preference for discussing the “good faith” issue tends to be in terms of behavior and not only action. This is because, for instance, negligence is not an action, or at least can’t best be described as an action (though some have tried). Rather, negligence is the absence of correct action; the derelection of a duty which may occur due to carelessness, not due to malign intent, but due to an absence of the right intent which would lead to correct action. For instance, negligence is understandable as being not-in-good-faith behavior in the DGCL. It reads, “The certificate of incorporation may also contain… A provision eliminating or limiting the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provision shall not eliminate or limit the liability of a director… for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law” (emphasis mine). Ommissions are a solid half of what it can mean to be in a state of non-good faith. This is important because it appears that the ethically relevant aspects of Nowicki’s items five, six, and seven — her “not in good faith” judgments — are not themselves actions. Rather, they’re ommissions, or failures to act. So we should talk in terms of “behavior”, it seems to me, because behavior is a broad enough descriptive category to cover both act and omission.

II. What about the difference between bad faith and the third category of non-good faith? For many of us, intuition tells us that malicious intent is quite worse than negligence, because we have intuitions about a difference between positive and negative responsibility (or, roughly, between doing harm and allowing harm). And the most sensible way to make sense of the intuition in this case is to appeal to the third category between good and bad faith, or draw out graded categories. But, putting different lengths of judicial sentencing aside — the law here seems to observe no difference between bad faith and non-good-faith, or (if it did accept there was a difference) doesn’t seem to care.

The question becomes: should it care? And why?

Arguments can be made, either moral or linguistic. My previous post offered an ordinary-language argument (along the same lines as Nowicki’s, though with some differences). But linguistic arguments are unmotivated suggestions if they lack moral consideration. So I have to ask: is it possible that, for all intents and purposes, negligence could be in the same moral category as malicious intent – the category of “bad faith”?

Agreed, this sounds bizarre on the face of it. Negligence doesn’t seem intuitively like it is in the same ballpark as malicious intent. But in what follows, I’ll offer some reasons why they can be understood as being in the same category.

It seems to me, intuitively, that a deontic-sounding argument can be made that an ommission (failure to act) can be legitimately called “bad faith behavior” if it involves a dereliction of written duties. Written duties are those where there is a pre-established obligation, i.e., a habit of conduct. Unwritten ones are where an unexpected situation arises for which a reasonable person can easily arrive at morally acceptable solutions, but to which they have no prior instruction or expectation, general or precise. To paraphrase one infamous political philosopher, unwritten laws are obvious by way of reason, and their content does not derive from the will of an external force.

Morally, duties can be normal (i.e., the obligation to act, to inform or discuss), or agentic (i.e., the obligation to learn). The infamous Kitty Genovese case is one example where people had failed to fulfill their obligation to act, and a young woman died horribly because of it; several of the items which Nowicki presents are illustrations of the Director’s failure to fulfill an obligation to inform. The obligation to learn new facts is also an essential component of the analysis; if a person, say, fails to stay abreast of certain issues and make informed decisions despite the fact that that is their fiduciary role, then they’re failing to take seriously the obligation to learn. Even more obviously, a security guard has the obligation to watch for burglars, to learn that burglars are burgaling; otherwise, they seem to be committing what Nowicki rightfully calls “gross negligence in becoming informed”.

I would imagine that a person violates their unwritten duties largely through neglect of normal or agentic duties, and is engaging intuitively in bad faith when they avoid performing said duties. But it’s not fair to blame a person for violation of unwritten duties when they’re not also violating any normal or agentic duties; they might just be feeling sluggish that day, or have bad moral luck.

This little taxonomy of duties isn’t idle (I hope). By keeping in mind the notion of agentic duties, we have a means of being able to say to a negligent individual that they have behaved in bad faith — through ommission, which as we have seen, the law seems to allow. Moreover, it would likely be agreed on all hands that the consequences of ignoring agentic duties can be dire (as is obvious in the burglar case, and arguably also in the Disney case). WIth all these considerations, it seems to be a very small imaginative leap to say that cases of agentic negligence may be instances of “bad faith”.

What do you folks think?

[Philosophical debts to: Thomas Hobbes (unwritten laws); Philippa Foot and Warren Quinn (moral agency, though this post disagreed with them both]

Prototypes and negations: one interpretation of Nowicki’s intuition

All social structures are made of meanings. So it is no surprise that a problem in the philosophy of language would wreck havoc in practical legal cases. Recently, Elizabeth Nowicki (from Concurring Opinions) has advocated a certain interpretation of the legal phrase, “not in good faith”, inspired in part by the recent Disney ruling. Her interpretation can be summarized as follows: “The “not in good faith” universe is larger than the “bad faith” universe; the phrases “bad faith” and “not in good faith” are not interchangeable. A plaintiff/shareholder can show that a director acted “not in good faith” by showing something much more “Caremark-esque” than “Enron-esque.” A director does not need to affirmatively act in bad faith (fraud, lying, deceit) in order to violate his obligation to act “in good faith.” She just has to. . . fail to act in good faith.” This interpretation sits between a rock and a hard place: the rock is (seemingly) mainstream logic, and the hardplace is natural language.

I think she’s right, after a fashion, and want to show how her underlying intuitions are onto something, both logically and pragmatically. But we have to start with an analysis of language before we make sense of the law.

Take this utterance as true:

(1) That film wasn’t bad.

What does it mean, logically? What does it mean, pragmatically?

In mainstream logic, there is a rule called “double negation”. It says that two “not”s which follow each other are logically identical to there not being a not in the first place. Take the following utterance:

(2) That film wasn’t not good.

It is synonymous with (1), because the meaning of “bad” seems to be “not good”. Now we can apply the rule of double negation. This isn’t a very special rule: all we need to do is take the two “nots” in (2) and eliminate them, and it gives us the entailment

(2`) That film was good.

This rule is intuitively supported by the fact that in conversation people tend to get tired of constant double-negations, since double negations require a few mental jumps to decode. Presumably, people would be satisfied if the speaker were just to say what they meant in a straightforward way, possibly much like (2`).

But natural language tells us that this interpretation (2`) of (1) is incomplete. While (2`) is one possible interpretation of (1), it’s not the only interpretation. Indeed, we usually mean something quite different when we say “That film wasn’t bad”: we mean to say that it was, basically, mediocre.

We usually assume that people are trying to make the most out of their utterances. If people choose to speak in a certain way, we usually assume that there’s a relevant reason behind the choice of words. So when we encounter a double-negation, like in (1), we assume that there’s a special secret message that the sender is trying to communicate. In this case, the special secret message would be, “It’s not bad, but if I thought it were any good I would have said so, so the only option left is that it’s somewhere between good and bad”.

We might be forced to say that natural language has failed us (as the logical positivists may have done), or we might be tempted to say that logic has failed us (as the logical intuitionists may have done). Though both of these options are plausible, after Paul Grice, they seem terribly outdated. Or we might claim that the negation of “good” is not in fact “bad”; rather, that it is “bad or mediocre”. And that might be appropriate for some contexts, but discussions concerned with law demand a kind of Manicheanism that makes a genuine third option inadvisable. So I don’t want to do any of these things. Rather, I’d like for us to have a more nuanced understanding of language.

Take any lexical word: say, “birds”. That word summons up all kinds of birds to the mind: geese, robins, etc. But some birds are unusual, and they sit at the periphery of the meaning of the word: for example, penguins, or ostriches. The word, “birds”, has graded membership. At the center are the common birds, the prototypical birds; at the outskirts are the anomalous birds who don’t seem to fit with the rest.

With that in mind, take the utterance:

(3) That’s not a bird!

uttered by someone in reference to some mystery animal. If they were to say that about a robin, they’d be clearly wrong. And if they were to say it about a penguin, then they’d also be wrong — but it wouldn’t necessarily be obvious or clear. So graded membership doesn’t seem to matter in that case. But the word “birds” deals with a well-defined class of things. On the other hand, when we start using terms like “good” and “bad”, the class is not well-defined at all; we’re stuck with intuitions about what makes up a kind of thing, but there’s semantic uncertainty.

In the case of the film, while you’re still stuck with two categories — the Good and the Bad — it would seem that you might be able to say that there are items at the periphery of each. Imagine you have a list of movies in your head: some which are clearly good (i.e., The Usual Suspects), some which are barely good (Jeepers Creepers), some which are barely bad (The Transporter), and some which are awful (24 Hours in London). [For the sake of argument, take it for granted that these films fall into the categories that I've listed, even if you have different tastes.]

Let’s revisit (1). If you were to walk out of Jeepers Creepers and say, “That movie wasn’t bad”, you would both be satisfying the intuition that it was mediocre (and satisfy natural language), and at the same time be in line with mainstream logic. Because while you’d still be really saying that “That movie was good”, it would be at the periphery of “good”.

We’ve gotten the idea by now. So let’s clear the table of these mundane statements and get back to the original phrase, “not in good faith”. Literally, this entails “not in non-bad faith”, and logically entails, “bad faith”. But there is nuance and latitude to what is covered by the meanings of “good faith” and “bad faith”; both terms can extend to cover what we’d ordinarily just think of as mediocre behaviors which we can classify as being, for all intents and purposes, between clear ideas of what make up good and bad faith behavior. But, because we need to be totally clear, we need to make it fall under one category and not the other.

This diagram makes it appear as though there is an in-between category (represented by “y”). And on first blush, we can attribute there to be one there. But because we need to be clear, we have to decide to move “y” into one category or the other. So negligence, for instance, might fall into the outskirts of the class we call “bad faith” behavior (call it “putatively bad faith” behavior).

On the surface of it, this might seem like a claim that is hostile to Nowicki’s. However, it is not. First, I have put my analysis in terms of behavior and not action, while she used only actions; this makes our accounts somewhat incommensurable. Second, to put my conclusions in her terms, the “not in good faith” universe is indeed larger than the “obviously bad faith” universe in relevant ways; however, the phrases “bad faith” and “not in good faith” are interchangeable in all relevant respects.

This interpretation may or may not satisfy Elizabeth Nowicki (it may, perhaps, be a bit too theoretical for the courtroom); and it may or may not satisfy most philosophers of language and logic. But it is, I think, at least one possibility to consider. It has the attraction of being able to accomodate intuitions from all sides.

[This post is indebted to Dan Sperber & Deirdre Wilson (relevance theory), L.E.J. Brouwer (logical intuitionism), Eleanor Rosch & George Lakoff (prototype semantics), and Kit Fine (supervaluationism and precisification).]

Two complaints in the study of ideology

Ideology is incorrigibly interesting. For apathy is not an option in ethics, semantics, and society, since all three are essential to social life. All correspond to some social habits, and each are compelled by our nature; and habits, being a part of everyday life, tend to be hard to ignore. Admittedly, questions of ideology are sometimes at the fringe of ethics and institutional analysis both. Still, while they should not compel the attraction of everyone, and where ideology intersects with ethics, it ought to (and usually will) inspire some interest. And anyway, anyone who is interested in the creeds that buttress institutions will find ideology to be fascinating.

The semantics of ideology are an essential part of the study of ideology itself. Indifference toward lexical semantics by any scholar of ideology is sure to dupe us all; for it will lead to a divide between people who are largely in agreement, and muddle together those who have deep disagreements. This is an interpretive and ethical mistake. It is also a scientific mistake: for, in the words of Stephen Jay Gould, “taxonomies are theories of order” (cited in The Annual Review of Sociology (1994), “Societal Taxonomies” by Gerhard Lenski).

There are at least two possible practices which lead to the aformentioned dooms. Both arise out of disputes over how to formulate the concept of “ideology”. The first practice involves a flight from philosophical social science and into mere description. The second practice involves conflation of political ideology with other forms of ideology.

1. There is an enticing view which tells us that an ideology is nothing more than how an ideologically charged word is collectively understood. It states that meaning is power; that all social structures are just the roles and expectations that have found a way to crystallize into meanings; that a word is a fortress, a flag, which people use to represent themselves to others, and around which they rally. And there is much truth to this view.

But our discussion over ideologies ought to be principled, not just a contest of folk usage. To use John Kvanvig’s language, the study of ideology must be “value-driven”, not as a simple game of gathering popular linguistic preferences; it ought to be partially prescriptive, not merely descriptive. A political ideology is a set of plans for governmental order, the sort that one may find in a manifesto. To secure a clear idea of what should be a part of such a manifesto, we need to filter out popular ideas which have no bearing on the philosophies represented by a particular ideology. Rather, we must prescribe the meaning of an ideology (or set of ideologies), and construct plausible meanings of an ideology out of historical context and precedent as they are understood by informed persons.

2. The concept of “ideology” is indeterminate with respect to the scope of its content. On my last perusal of political science articles, the term (it was hoped) would be used to describe a great pot full of ideas. “Liberalism”, for instance, is not to be taken as a certain kind of creed with a nest of characteristic plans for state and society, but rather, a whole worldview, which includes the various and sundry vexes and affiliations that a person has in their social life: views on parenting, on education, etc. This sentiment finds folk popularity in many quarters; George Lakoff, for instance, seems to associate maternalism (as a metaphor) with liberalism.

I take this to be a step in the wrong direction, although with the best of intentions. We need to be a bit more incisive, and develop a taxonomy of ideologies. There are, for my purposes, at least three kinds of ideology: those which treat of wordly wisdom, or the social facts that people hold in their lives; the part which gives rise to social ideologies, which pertain to issues of social identity, household management, everyday life, and so on; and the part which holds certain political or collective plans, which may ideally be captured in the form of a manifesto. Only the last sort can be understood as “political ideology”. And if there are interesting correlations which may be observed between the three, then fine; if, for instance, it may be observed that self-titled socialists tend to have a certain view of economics, then we may associate their political plans with their scientific worldview. But as far as political ideologies themselves go, our discussion ought to be limited.

Such a taxonomy is not of merely idle interest. For instance, with the above tools at hand, we may examine the work of Karl Mannheim in a new light. He, writing in the Marxist tradition, understood ideology to be a pejorative term which was used to describe ostensibly irrational beliefs about social life: a set of ideas that “conceals the present by attempting to comprehend it in terms of the past” (cited in George Ritzer’s “Classical Sociology Theory”). He was evidently speaking of social philosophy, or worldly wisdom, not political ideology.

My worry is that, without making sense of the differences between these sets of ideas, it will inspire the kind of generalizations that make ideological discussion needlessly toxic. If my political ideology (that is, my plans for reform or status quo) are so-and-so, it does not necessarily entail that my economic and social ideologies are such-and-such. To take the Lakoffian example, although I may support welfare, I may justify the practice in many different ways: through cold utilitarian terms, virtue ethics, distributional justice, perhaps even perfectionism, not just some maternalistic ethics of caring. Sure, many advocates of welfare also likely do so out of sympathy; but this is a connection that needs to be shown, not inferred, and which may be wrong. Without separate categories, there temptation for conflation is too great.