Scott:

When ideas become “property” let me know.

I’m nearly positive they already are, hence Disney’s actions.

Why? Because the government says so, or for some other reason?

If it’s because the government says so, since when did government dictates determine legitimate property rights?

If it’s for some other reason, what does Disney’s lobbying of the government have to do with it?

Daniel Slate: … some of [Bork’s] points are quite good.

Do you have some particular examples in mind?

Scott:

In one sense, no, since I am defining Constitutional actions as just, and I assume evil is a synonym for unjust. In another sense, yes, as I imagine the Constitution would bind people to do actions that would typically be seen as evil were they done by other parties.

These are surely not how I was using the words “evil” or “unjust,” and not how most speakers of English use them, either. (If they duly repealed the Thirteenth Amendment would that make chattel slavery just? Would it make it non-evil?) In my questions above I was using “justice” to refer to respecting human rights and “evil” to refer to any violation of moral obligations (all injustices are evils but not all evils injustices; cruelty, cowardice, intemperance, envy, etc. are all evils but not injustices).

If the question is whether or not a judge, knowing positively that her sense of justice is correct, should enact an injustice, then the answer is no. But I don’t think that has any real world ramifications. If the libertarian theory of justice were true, then we should of course all act like libertarians. But normative verifications aren’t an option.

The question is about rights, not about how we know what rights people have. If a judge has to choose, in a ruling, between (1) respecting human rights and refusing to comply with the Constitution, or (2) respecting the Constitution and refusing to adhere to human rights, then should she choose (1) or (2)?

(The question of how she knows that she’s in a situation where the choice is between (1) and (2) is a separate question, which bears on epistemology more than on ethics or on law—it’s interesting, but it’s not what I’m asking about.)

You seemed to be indicating that your answer was that she should do (2) because she has a legal duty to do so that she’s bound to fulfill. But I don’t understand why you’d say that. If I’ve misunderstood you, then it would help me if you’d explain more about what you think makes, say, a duly-enacted law that bans flag burning, or authorizes chattel slavery, wrong; and what you think it is about duly-enacted laws that make them something we, or judges, should care about at all when we deliberate about what to do.

If I haven’t misunderstood you, though, it seems like there are two possibilities. (1) We can (somehow) get into a situation where we are required to do things that are evil, i.e. that it would be wrong not to do things that are wrong; the judge in the case above is in such a predicament. Or (2) holding a Constitutional office absolves the holder of ordinary moral obligations not to violate other people’s rights, so that by ignoring human rights in favor of the Constitution she isn’t wronging anyone. But (2) hardly seems tenable on anything other than a totalitarian view of the law, which I take it you don’t hold.

If I have understood you and you do believe that (1) is the case, doesn’t that make becoming a judge rather like making a deal with the Devil—you’re damned if you do and damned if you don’t? Isn’t that at most a knock-down argument for never becoming a judge under the present legal order?

Scott:

That seems a fair gloss. I’m tempted to redefine “injustice” as refusing to follow the law — but as we are using “justice” to define a Justices’ personal feelings as to the just and the unjust, it would probably make things more troublesome to shift definitions now.

I’m sorry if I’ve muddied the waters by not making my questions precise. I wasn’t asking about whether or not Supreme Court Justices have a duty to defer their own “personal feelings” about the content of justice to the feelings of someone else (e.g. the legislature or the people at large). I’m using “injustice” here to mean “transgressing against what is in fact just.” The issue of whether a judge happens to feel (rightly or wrongly) that a particular law is unjust doesn’t come into the question in any interesting way (if the judge were ruling based on a mistaken feeling about justice that would be a different case from the one I’m asking you about). The question is about cases where a judge is right to consider a law unjust.

So, for example, suppose that the libertarian theory of justice is true (i.e., justice is consistent non-aggression; an action is in fact unjust if and only if it involves aggression against person or property). Suppose also that the Congress and the several state legislatures pass bills amending the Constitution to authorize some power that manifestly violates those correct principles of justice by authorizing violence against non-violent use of property (an amendment to ban flag-descretation, for example). And finally suppose that you have a judge who (correctly) believes that the amendment authorizes injustice, and decides to ignore the amendment or declare it void on the grounds that it cannot be justly enforced.

The question is whether you are willing to say that the judge has done wrong by issuing a ruling in which she refuses to inflict injustice on an innocent victim. If you are willing to say that, then I have to wonder how anyone could get into a moral predicament where they are bound by duty to do something evil—i.e. where it would be doing wrong to refuse to do something evil. Does the Constitution have the authority to bind people to do evil? If so, where did it get that authority?

Injustice remains a vice, but refusing to follow properly enacted laws seems an equal vice, as it is the imposition of one’s personal sense of justice over what is, in principle, the sense of justice that one is supposed to be representing.

(1) How do you determine which laws were “properly enacted” and which weren’t?

(2) If your answer to (1) allows for some of the laws that you pick out as “properly enacted” to actually require acts of injustice (in the sense that I specified above), then why would you claim that refusing to follow properly enacted laws is always a vice? Don’t we usually consider people who refuse to co-operate with evil virtuous?

(Does the fact that the evil is being committed by a government make it even O.K. — let alone obligatory — to co-operate with it?)

(3) What’s this about “imposing one’s personal sense of justice”? If you are convinced that it’s just to break into my house and steal all my belongings, and I’m not convinced, and I hit you on the head with a baseball bat when you try to act on your theory of justice, I’m “imposing my personal sense of justice on you” in some sense, but would I be doing wrong to do so?

“… do you seriously think that we enjoy less freedom today than did the people of 1776, a substantial percentage of whom were in chains? The principles of 1776 are the same today as they were then, but in many, many ways they are realized to a far greater extent today than they were then.”

Tom, this is an important point that needs to be stressed. Given the absolute subjection of (1) most Black people and (2) all women under government-backed private tyranny in the 18th and 19th century, and the breathtaking gains that struggles for the emancipation of both have made (bear in mind that this represents well over 50% of the population of the country) it probably is the case that the freedom enjoyed by the average person in America is much higher than it was in 1776, and it is certainly case that the worst case that could be faced is today far, far milder than it once was.

That said, though, there are lots of good reasons for Roderick to point out the abandonment of the principles of ‘76 over time and the political consequences of that abandonment. It may very well be true that the average case and the worst case are better than they used to be; but it’s also the case that the best case (the amount of freedom enjoyed by those whose free citizenship was recognized and socially protected) has gotten substantially worse. That doesn’t mean that the vast decline in freedom for those recognized as free citizens is more important than, or should make us neglect, the immense increase in freedom for those who were once not recognized as free citizens but who now are. But it does mean that on a day specifically devoted to the Declaration that eloquently put forward those lost principles, there is plenty of reason to take a mournful pause.

I asked:

Is it your position that a person can be duty-bound to inflict an injustice on others? If so, what sort of duty are you talking about and why in the world do you believe that?

Scott replied:

Absolutely. That duty is a Constitutional one, and so long as we are speaking of Constitutional matters, it is the Justices’ duty to interpret law, not create it, nor impose their own personal predilections as to what is just and what is not on the country at large.

So are you arguing that the provisions of the Constitution can make it the case that Brown would be doing wrong to refuse to inflict an injustice on other people? (I take it that having a duty to do a deed means, in part, that refusing to do it would be doing wrong.) If this is an unfair representation of what you said, let me know.

If it is a fair gloss, I can’t help but wonder where the Constitution gets the extraordinary authority to undo basic principles of conduct, such as “injustice is a vice” and “you should refuse to indulge in vices.”

matt27:

well Tros- the profession is heavily influenced by prescription drug companies. It’s just the working of the free market though- the drug companies “subsidize” Doctors by providing them with information (read: sales pitches) on their new drugs.

This is true enough, except that it’s not “the working of the free market.”

Pharmaceutical companies are willing and able to pour huge amounts of money and labor into lobbying physicians because (1) they have enormous profit margins on new drugs, and (2) their new products are usually not easily substitutable (if a doctor wants to prescribe something like X, she will probably have to prescribe X itself rather than a near-identical competitor). But (1) is mainly the result of (2) and (2) is not the result of the workings of the free market. It’s the result of government-enforced patent monopolies. (N.B.: whether you or not think patent protectionism is justifiable, characterizing the behavior of government-backed monopolists as “the working of the free market” is just an inaccurate description of the situation.)

Scott:

Such an amendment doubtlessly infringes individual liberty — but it is the Supreme Court’s duty to uphold the Constitution, and that would include the flag-burning amendment.

Is it your position that a person can be duty-bound to inflict an injustice on others? If so, what sort of “duty” are you talking about and why in the world do you believe that?

Brandon:

Now that I think about it more, though, it doesn’t really seem that there is any way to take discretionary power out of the hands of the judges. Law, no matter how clear, can’t interpret itself. Unless we want to give everyone veto power over every law, there always has to be some ultimate authority, or some group of authorities, who can say that black is white and have no one to answer to for it.

Do you think that “Each dispute over law must be finally settled by some authority” entails “There must be some authority that finally settles all disputes over law”?

If so, how is your argument different from the (fallacious) “Every person has a favorite color; therefore there is some Supreme Color that is every person’s favorite”?

If not, then why does the fact that each dispute over law must be finally settled by some authority give any reason to invest supreme authority over all disputes over law in any one person or group of people?

(See also: [1], [2], and [3].)