Comments Elsewhere

Tlaloc, I agree with you that the question of what the law should be is more interesting, and important, than the question of what the law in fact is. But I do not think that this is nearly as essential to the argument as you seem to take it to be. Here are some quotes from you that I think are indicative of what is essential to the argument:

Tlaloc: This is why intent matter. Make sense now?

Tlaloc: Intention is critical. If the guy keeps the wallet because he thinks I’m thanking him for shooting the maniac behind me he did not rob me.

Tlaloc: I don’t think he should be charged with armed robbery since he had no intention to rob. He should of course be charged with B&E and assault.

Tlaloc: Because he is the one accused of a crime. Frankly this question has me stumped, why wouldn’t you consider the motivation of the kidnapper? Rape is a crime but sex is not. Motivation and action both play a role in distinguishing the two.

Tlaloc: Stating something does not make it true. You believe that consent is all important. I believe that consent is certainly important but that intent is also.

These comments clearly indicate that you are arguing at cross-purposes with the other commenters in this thread. Further that you are arguing at cross-purposes because you have the wrong idea, or a confused collection of ideas, of what “rape” and “consent” mean.

Rape is defined as non-consensual sex. I am going to simply stipulate this without argument, because it is obvious. If you don’t believe me, look it up in a dictionary. It is important to note that “non-consensual sex” does not mean “sex intended to be non-consensual;” it means sex that is, in fact, non-consensual.

Thus, what matters here — and also, incidentally, in other cases of assault and battery, robbery, and other similar crimes — is whether what happened was coerced or consensual.

And, here is the important part: when we say that something is coerced, that’s because of what happened to the victim. Not because of what’s going on with the perpetrator. If sex is coerced under duress (here, through the use of repeated physical violence, threats, and terror), then, under any sane moral standard, that sex is non-consensual, no matter what the coercer had in mind when he did the coercing. It’s non-consensual because the victim didn’t consent; not because the coercer intended for her not to consent. And if the sex is non-consensual, then it is rape.

If you want to argue about whether rapists should be treated differently by the criminal justice system, or in moral discourse, depending on the intent that they had when they committed the rape, then you’re free to do so. What you’re not free to do is make up your own definition for the word “rape” so as to make it dependent on the rapist’s, rather than the victim’s, condition.

I think before we can get any traction on this question we need to be clear about what the competing claims are about. When you “challenge those who argue that FDR ‘saved capitalism’” to provide further information, (1) what do you think your interlocutors are using the word “capitalism” to mean? and (2) what are you using the word “capitalism” to mean?

I ask because there are several different uses of the word “capitalism,” including (1) a voluntary economic order under conditions of laissez-faire et laissez passer (“the free market”), (2) active government support for big business through forcible accumulation, monopolization, and protection of industrial capital (“state capitalism” or “the corporate State”), and (3) a particular form of labor market, in which most goods are produced by wage-laborers working for a boss who owns the means of production (“the wage labor system,” or “boss-directed labor”). But (3) is orthogonal to either (1) or (2) (it could in principle exist under either system) and (1) and (2) are in fact mutually exclusive. (1) has almost never existed in its pure form in human history; (2) and (3) have been very common, especially over the past 150-200 years. (I discuss the terminological issues in more length elsewhere, e.g. at http://radgeek.com/gt/2005/03/31/anarquistas_por.)

So it seems to me that I need to know what “capitalism” means, before I can have any idea of whether FDR saved it, destroyed it, left it untouched, or never even came upon it in the first place.

“The person simply deserves to be punished in the criminal legal system regardless of the effect on restraint and deterrence.”

Again, whether or not a person deserves X and whether or not we can legitimately give her X are two different questions. I have very little in the way of confident positive beliefs about what murderers do or don’t deserve, but I am quite sure that even if a murderer does deserve punishment we can’t rightfully inflict that on him or her against her or his will. (Again, because as a libertarian I condemn all forms of violence not in defense of self or others, and we’ve stipulated that the punishment in question serves no defensive purpose. If you intend to show that we can rightfully inflict punishment on someone who deserves it, against that person’s will, you’ll have to give reasons to think not only that they do deserve it, but also that the ordinary ban on aggressive violence is repealed in the case of convicted criminals.)

“What kind of restitution are we talking about for murder?”

I mean damages for wrongful death, payable to the victim’s estate (since the victim is dead). The sort of thing that you could today gain through a wrongful death suit (or perhaps more, since a system that exclusively depended on restitution might tends towards higher restitution than one in which restitution is thought of as something taken in addition to punishment).

“There are some crimes that are so heinous, that yes, it really wouldn’t bother me — that is, were I the master civil magistrate, I would vet such a punishment — but I’m not sure if the parent murder hypo that we are discussing is one of them.”

But you are sure that killing the murderer (provided that there’s no chance of error, etc. etc.) would be a fit punishment?

(As far as the 8th Amendment goes, well, let’s set that aside. The 8th Amendment can be changed or repealed if it serves the aims of justice to do so.)

Come on now, you can think of worse people for 1860-1880 than Robert E. Lee, can’t you? Lee was a slaver and a sleazebag, but he was as nothing compared to Nathan Bedford Forrest (perpetrator of the Ft. Pillow massacre and founding father of the Ku Klux Klan), or William Tecumseh Sherman (inventor of modern scorched-earth warfare in the 1860s, and genocidaire of the Plains and Southwest Indians in the 1870s-1880s), Alexander Stephens (Vice President of the Confederacy and author of the infamous “cornerstone speech”), etc.

Joseph McCarthy also seems like an overhyped choice for the 1940-1960, given the presence of General Curtis LeMay and Senator James Eastland (D-MS), who was as enthusiastic a leader in the hearings as McCarthy himself, and also personally helped to found the White Citizens Councils in the Mississippi Delta.

My perspective on this, taking a step back, is “what good is it to carry around a conception of social justice?”

Well, the libertarian argument for holding libertarian principles of justice (i.e., justice as self-government, or justice as non-aggression) is usually that you should hold them because they are true. Questions of social good can only be sensibly answered after you’ve answered (tacitly or explicitly) the prior question of what would count as a good social outcome, and a theory of justice aims to supply part of the answer to that prior question.

Justice strieks me as a form of self-governance given the fact that every person is their own tyrant upon the world.

I don’t understand what “fact” you are pointing to here. Could you explain?

What tames the millions of tyrants who then walk the earth?

Judo. Or possibly guns.

In all seriousness, if you are asking how you stop people from violating each others’ rights in a libertarian society, that’s a question for constitutional theory. It’s an important question for libertarians to answer, but there isn’t any single libertarian answer to the question. Minarchists think that the government should take a primary role in stopping crime, along with private citizens acting individually and together for self-defense. Anarchists reject all forms of government on principle, and so favor individual and cooperative private self-defense. Some libertarians think that to build a sustainable libertarian society you need to engage in a process of education and moral agitation to get more people to accept libertarian or individualist ideas. Others think that you just need to give people the right tools and count on them to protect their own self-interest. Different libertarians favor different means of defense (unorganized armed populace, local militias, for-profit specialized defense agencies, martial arts, shifting resources towards security of home and property rather than stopping attacks in-progress or punishing after-the-fact, nonviolent passive resistance on an individual or coordinated level, etc. etc. etc.). A lot of us (myself included) tend to think that libertarians should leave a lot of this up to individual people and particular communities to decide, rather than insisting on a one-size-fits-all strategy, on the grounds that if you get out of people’s way, and let them talk with each other and make their own decisions, you’ll usually get a variety of interesting and innovative solutions to the problem that you wouldn’t get if you handed down a central plan from on high.

So what exactly is libertarianism offering the student of political life?

Boundary conditions on the acceptable means for carrying out political or social projects.

Habib: Maybe if Pro-Choicers would PICK THEIR BATTLES we would be more sucessful. This was not a law that ended your reproductive rights.

In case you haven’t noticed, we were successful. Casey, for all the many problems with the decision, did strike down the law we were opposing.

As well it should have: whatever the law’s effects on “reproductive rights,” it was clearly a threat to women’s rights to act as autonomous human beings. As the plurality put it in Casey,

“A husband has no enforceable right to require a wife to advise him before she exercises her personal choices. If a husband’s interest in the potential life of the child outweighs a wife’s liberty, the State could require a married woman to notify her husband before she uses a post-fertilization contraceptive. Perhaps next in line would be a statute requiring pregnant married women to notify their husbands before engaging in conduct causing risks to the fetus. After all, if the husband’s interest in the fetus’ safety is a sufficient predicate for state regulation, the State could reasonably conclude that pregnant wives should notify their husbands before drinking alcohol or smoking. Perhaps married women should notify their husbands before using contraceptives or before undergoing any type of surgery that may have complications affecting the husband’s interest in his wife’s reproductive organs. And if a husband’s interest justifies notice in any of these cases, one might reasonably argue that it justifies exactly what the Danforth Court held it did not justify — a requirement of the husband’s consent as well. A State may not give to a man the kind of dominion over his wife that parents exercise over their children.”

Emphasis on important points of principle mine. (Actually, I don’t think that the State has the right to give mothers and fathers that kind of dominion over their children, either, but that’s a separate issue.)

jivin j: So judges should base their rulings on common-sense over the Constitution and legal precedent?

Tiffany might not be rising to take the bait, but hell, I’ll bite. Yes, judges should base their rulings on common-sense over the Constitution and legal precedent if it’s necessary to preserve principles of liberty, equality, and justice. The Constitution was not written in letters of fire or set in stone; it’s a changeable document composed by fallible, limited human beings like you and me, and has no claim to authority over anyone except insofar as it expresses, or conforms to, fundamental claims of liberty, justice, and equality, such as those set out in the Declaration of Independence.

Thus justices are fully in the right to make rulings based on the perceived “spirit” of Constitutional protections that don’t clearly draw from the ipsissima verba of the Constitution (e.g., Miranda, Griswold, Roe), and also right to make rulings that interpret unclear passages of the Constitution in the ways that best serve liberty, justice, and equality, rather than in the ways that best reflect legal precedent (e.g. Brown, overturning Plessy and the standing legal precedent of a half-century). Legal precedent not only has no authoritative standing on its own (not even as to Constitutional interpretation, let alone questions of right), but has in fact often been actively repugnant (Dredd Scott v. Sandford, Plessy v. Ferguson, Schenck v. U.S., Buck v. Bell, Korematsu v. U.S., Bowers v. Hardwick, etc.), and when it has been, it deserves the contempt of rational people, and Supreme Court justices, too.

So now what?

Ed:

Now, being the defender of the free market that I am, I can’t conceive of any reason why Ford shouldn’t be able to make its own decisions on where it is best to advertise their products.

This seems to me to be special pleading.

The AFA is not claiming, as far as I can tell, that Ford should be legally prohibited from advertising in gay publications. What they are saying is that they intend to reinstate a consumer boycott of Ford by fundamentalist creeps if Ford doesn’t stop advertising in gay publications. You might think that’s a foolish thing to do (I certainly do), but the reasons that it is foolish don’t have anything to do with a debate over “the free market”, or with Ford “making its own decisions on where it is best to advertise their products” in any sense that matters from the perspective of free market principles.

Fundamentalist creeps have every right to try to get the results they want on the free market by refusing, or threatening to refuse, to buy from Ford as long as Ford advertises in magazines they find objectionable. Just as I have every right to refuse, or threaten to refuse, to buy from Ford if they kowtow to such idiotic demands, or if (say) they decided to start running ads in publications that really are morally repugnant, e.g., paedophile or white-power magazines. The fact that big corporations have to account for their business decisions to would-be consumers is not hampering the market; it’s part of the free market at work.

There are more than enough reasons to call the AFA’s demands foolish. Making specious appeals to free market principles, though, just reinforces the confusion — which all too many people, both libertarian and non-libertarian, already have — between “the free market” and “blind deference to big business.”

You know, I couldn’t possibly care less whether or not Democrats question Alito in a way that makes his wife cry. That’s no sin of theirs. But remarks like the following …

somewaterytart: I don’t think it was fake. I do think she’s a bit emotionally unstable.

somewaterytart: It was immature and she’s probably one of those narcissistic, theatrical types.

Nadai: The public right to know what sort of Justice her ass of a husband would be is more important than her widdle feewings. Stupid bitch.

… are overt cases of contempt for “emotional” women and, in order to ridicule and express contmpt for Martha Ann Bomgardner, freely make use of well-worn tropes of misogynist contempt, sometimes uncritically and sometimes intentionally (“emotionally unstable,” “narcissistic,” “theatrical,” lisped speech about hurt feelings, etc.). One of them concludes with an overtly misogynist insult. The other lists classic symptoms of the pseudo-diagnosis of “hysteria.”

They’re also simply mean and serve no discernible purpose at all beyond making fun of someone for being visibly upset.

If you want to complain about a bunch of newsmedia hoo-ha over nothing, you could complain about that, instead of piling on to ridicule Martha-Ann Bomgardner herself. Why not just leave the woman alone?

Rowe:

Alan Dershowitz has admitted off the record this to be the case. Judge Harold Rothwax wrote a good book on the matter a few years back: …

O.K. Perhaps I’m not confident as you are that the anecdotal experience of a couple high-profile defense attorneys is widely representative of the criminal justice system as a whole, or even the criminal justice system as relates to hanging crimes. Maybe it does and maybe it doesn’t, but I’m not sure why you seem as sure of it as you do.

Rowe:

Aside from legitimate claims of deterrence, rehabilitation, and restraint, individuals morally deserve to be punished for the criminal wrongs that they do. Retribution is a legitimate rationale by itself for punishment.

The second sentence in this paragraph doesn’t necessarily follow from the first. Whether or not a criminal deserves to suffer or even to die for her crimes, it may still fail to be the case that we have a legitimate reason to give her what she deserves. (To take a rather different example: I think that Rosa Parks deserved a million dollars rather than decades of poverty for her role in the Montgomery Bus Boycott. But since I never had a legitimate title to a million dollars, I couldn’t legitimately give it to her.)

Rowe:

I think I could probably do a thought experiment to lead you to the same conclusion. Say someone murder someone close to you, somehow we had a crystal ball that demonstrated that the person snapped and if they could be led out, wouldn’t do it again. Or maybe they had a Clockwork Orange kind of “treatment.” And no one would find out that the person would go free; the legal norm, with punishment, against the crime would still remain; so there would be no negative effect on deterrence. Say the person murdered your parents.

Should this person go unpunished for the crime?

Yes.

That is, if “unpunished” means that nothing is done to them over and above what’s necessary for defense of self and others (which you’ve stipulated to be nothing in this case) and to force her (if necessary) to make such restitution as is possible for the murder (which you don’t mention in your hypothetical, but which I happen to think is very important). The reason is that I don’t think that violence is morally justified except in defense of self or others. Even if the victim of the violence does deserve to suffer.

Here’s a hypothetical example concerning punishment that I’d be similarly interested to know your thoughts on. Suppose that the situation you just described obtains — there’s someone who murdered your parents, and (somehow or another) you know that he won’t kill again or pose a threat toanyone else, and you know (somehow or another) that no-one will know if he is let go without further punishment. But you think that he ought, nevertheless, to be punished, as retribution.

Now, there are lots of ways that you can punish someone. For example, you can make fun of him in nasty ways; you can beat him up; you can incarcerate him against his will; you can hurt him in any number of ways; you can deprive him of any number of things he values; or you can kill him. Suppose that the court hands down the following punishment: the murderer of your parents is to be incarcerated in an otherwise humane and safe prison, but they’ll hack off his arms and legs, and every so often (say, twice a month) they’ll torture him in some way (say branding with hot irons, or raking his back with the cat’s paw and then washing it with brine), for the sole purpose of making him suffer.

Do you think that this could be a suitable punishment for the murder?

I think his discussion of “aristotelian categoricals” may shed light on other problems in ethical theory, specifically the possibily of virtue ethics.

Well, for what it’s worth this is one of the explicit purposes of the philosophical work that I’m drawing on. Philippa Foot has the best investigation I know of in her book Natural Goodness, and puts the logical status of Aristotelian categoricals front and center in her account of why a broadly Aristotelian virtue theory can succeed in solving a number of standing problems concerning ethics and rationality; Thompson’s essay explicitly aims at, among other things, clearing some of the logical ground for an explanation of what he finds to be right in Foot’s work, and in some similar remarks on ethics by Elizabeth Anscombe.

It’s good stuff; if more people in applied ethics would apply it, then we might see some more interesting and serious work on questions like those surrounding ethical vegetarianism.