Archive for the ‘Justice’ Category

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Deal with the Devil

June 14, 2010

J M Bernstein’s analysis of the tea party in the New York Times, I think, is well worth reading. Unfortunately, it’s way too sophisticated for the sordid collection of nincompoops who could really benefit from it. Here’s a nice capsule:

What has gripped everyone’s attention is the exorbitant character of the anger Tea Party members express.  Where do such anger and such passionate attachment to wildly fantastic beliefs come from?

My hypothesis is that what all the events precipitating the Tea Party movement share is that they demonstrated, emphatically and unconditionally, the depths of the absolute dependence of us all on government action, and in so doing they undermined the deeply held fiction of individual autonomy and self-sufficiency that are intrinsic parts of Americans’ collective self-understanding.

The implicit bargain that many Americans struck with the state institutions supporting modern life is that they would be politically acceptable only to the degree to which they remained invisible, and that for all intents and purposes each citizen could continue to believe that she was sovereign over her life; she would, of course, pay taxes, use the roads and schools, receive Medicare and Social Security, but only so long as these could be perceived not as radical dependencies, but simply as the conditions for leading an autonomous and self-sufficient life.  Recent events have left that bargain in tatters.

<snip>

Tea Party anger is, at bottom, metaphysical, not political: what has been undone by the economic crisis is the belief that each individual is metaphysically self-sufficient, that  one’s very standing and being as a rational agentowes nothing to other individuals or institutions.

Readers unaware of the reference here may be helped along by clicking to this article by John Rawls.

Bernstein, a professor of philosophy at the New School for Social Research, cleverly weaves this upside-down take on Rawls without so much as a mention of great political theorist. Make no mistake though, Rawls is hanging around in the background. It should also be clear, I think, that Rawls’s original piece was a response to those who criticized him on metaphysical grounds. So Rawls’s position was a more-or-less a pragmatic acknowledgment that the metaphysical argument would never fly. All he needed for his conception of justice as fairness was the political argument.

Which raises the part that gets considerably more complicated, and may turn off even even the more theoretically inclined reader. Bernstein somehow manages to integrate G.W.F. Hegel into his piece, which is some serious philosophical business. When was the last time you caught reference to Hegel in the New York Times?

Descartes famously argued that self or subject, the “I think,” was metaphysically basic, while Hegel argued that we only become self-determining agents throughbeing recognized as such by others who we recognize in turn. It is by recognizing one another as autonomous subjects through the institutions of family, civil society and the state that we become such subjects; those practices are how we recognize and so bestow on one another the title and powers of being free individuals.

All the heavy lifting in Hegel’s account turns on revealing how human subjectivity only emerges through intersubjective relations, and hence how practices of independence, of freedom and autonomy, are held in place and made possible by complementary structures of dependence.   At one point in his “Philosophy of Right,” Hegel suggests love or friendship as models of freedom through recognition.  In love I regard you as of such value and importance that I spontaneously set aside my egoistic desires and interests and align them with yours: your ends are my desires, I desire that you flourish, and when you flourish I do, too.  In love, I experience you not as a limit or restriction on my freedom, but as what makes it possible: I can only be truly free and so truly independent in being harmoniously joined with you; we each recognize the other as endowing our life with meaning and value, with living freedom. Hegel’s phrase for this felicitous state is “to be with oneself in the other.”

Hegel’s thesis is that all social life is structurally akin to the conditions of love and friendship; we are all bound to one another as firmly as lovers are, with the terrible reminder that the ways of love are harsh, unpredictable and changeable.  And here is the source of the great anger: because you are the source of my being, when our love goes bad I am suddenly, absolutely dependent on someone for whom I no longer count and who I no longer know how to count; I am exposed, vulnerable, needy, unanchored and without resource.  In fury, I lash out, I deny that you are my end and my satisfaction, in rage I claim that I can manage without you, that I can be a full person, free and self-moving, without you.  I am everything and you are nothing.

In principle, I don’t object to this interpretation of the Tea Party’s anger, but it does seem an unnecessarily psychologistic application of Hegel’s position. Seems to me that he could just identify the intense frustration of those who otherwise insist upon their independence by refusing to recognize that they are, in the end, inextricably dependent upon everyone else. In that case, it’s not that their psychological rankles are up, like legions of spurned lovers, but rather that they intensely hang on to the  illusion that they are masters of their own domain, that their mastery is of their own creation.

I actually have a fair bit more to say in this Rawlsian vein, sans Hegel, and I’ve been working on a silly little opinion piece for several years now,  at least since the Bush/Kerry presidential race, but I’ve just never found the time to finish my piece. I’d disclose more, but I’d prefer to finish it first.

Off to Portland in a few days to deliver a talk on moral hazards and geoengineering. More on that in the coming hours.

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Sickle Cell Mos-keeters

April 28, 2010

Reposting this guest-commentary (by Patrick Moffitt) from the Center for Environmental Journalism. As someone who has lived through two Russian summers, and thus witnessed the aggressive onslaught of the post-Soviet mosquito, I will tell you that, upon reflection, I find the core assertion of this article not surprising in the least. I recall one time in particular, as I was walking through a park during White Nights, that I could feel the mosquitoes batting into my legs with the force of thousands of blades of hostile grass. I have, as well, slept several nights in country Dachas, burying my head under the sheets in a vain attempt to keep the buzzing parasites from doing the nasty in my ear canal.

The malaria climate connection however raises important ethical questions. Malaria is too often framed as a “climate disease” by NGOs, regulatory agencies, media and some scientists. (See here and here.) This carefully constructed message implies the control of malaria requires that we control carbon dioxide emissions. This message is untrue, unethical and immoral.

Malaria is a preventable and treatable disease that we allow, by our inaction, to kill one million people and infect another 250 million to 350 million each year. (See this report from the World Health Organization.) These are not modeled deaths. Nor are they possible deaths related to some future carbon scenario. These dead had names, were loved, and are mourned. And nearly 80% of these dead are African children under the age of five.

Malaria, for some reason, seems to be the bugaboo of the anti-environmental community. Rachel Carson has certainly taken her lumps for allegedly “causing” the deaths of millions, a view that has been heavily disputed in many places, though usually on empirical grounds.

My view is that this is a straw man. Nobody but the most extremely silly in the environmental community actually argue that all pesticides and all spraying to eradicate a scourge like the mosquito is unacceptable. Most people take a considerably more measured approach. Even in Boulder, bastion of environmentalism, we spray for West Nile Virus. Frankly, as a one-time victim of meningitis, I’d like to see a bit more spraying for West Nile in Boulder. Alas, as luck has it, we have plenty of extremely silly people who fetishize one concern to the neglect of another. People do that with vaccines too.

It is, however, an important point: that not all environmental disasters are attributable to climate change, and once in a while it is important to just address questions in a more traditional context.

I’m not sure if there are more effective pesticides on the market than DDT, but certainly, if there’s an outbreak of malaria, it makes sense to spray. It just doesn’t make sense to spray indiscriminately. And it’s the spraying indiscriminately, it seems to me, that rankles the feathers of otherwise silent environmentalists.

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How to Avoid Racial Profiling

April 26, 2010

One of the major concerns with the new Arizona immigration law, apparently, is that it will inspire a wave of racial profiling. At least, that’s what everyone is saying.

I said a few days ago that racial profiling is not the major concern, and I stick with that point. Here’s another way of thinking about what I was saying before, and one that I think is actually implied by this law, if not an impending state of affairs if the law goes into effect.

One way to avoid racial profiling is to apply a law to all races (however described) equally. (Set aside, for the time being, the conceptual absurdity of racial categories.)

So, for instance, one can demonstrate that one is not racially profiling when pulling over speeders by showing that the number of speeders pulled over is roughly proportional to the racial makeup of the driving population. One can also avoid racial profiling at airports by running all passengers, say, through a metal detector before they get on an airplane.

Am I right? Yes, I’m right.

So, since there are no non-arbitrary features that implicate any given person as a citizen or a non-citizen based simply on looks or perception — skin color, accent, language difficulties, many people packed in a car (?), dirty shoes —  and since racial profiling is itself illegal, if law enforcement aim to get around the problem of racial profiling, they can just take all comers. Every person they stop, or ever tenth person they stop, should need to produce citizenship papers: whites, blacks, browns, tans — no problem.

Do I support this proposal? No. I don’t support the immigration legislation, and I don’t support this solution. But I don’t support the legislation in part because I don’t support this solution. I would be massively, hysterically, outrageously resentful if some law enforcement officer took it upon himself to ask me for my papers in my own country. I suspect many other Americans would feel the same way.

Further, and here’s one final thought, this law will be uncontested if it works out 100% of the time. If every person pulled over and asked for papers ends up being a non-citizen, then the police will have some serious powers of perception. What, then, of the time that it doesn’t work? The time that they stop a person in the street because they suspect he might be an illegal immigrant, and it turns out that he is not an illegal immigrant, but a full, tax-paying citizen. What will they appeal to? The color of his skin? His accent? His shoes? Seriously, how will they get around the non-arbitrariness charge?

This is an unenforceable and unethical law. It cannot be justified.

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Liberty and Freedom

April 24, 2010

I probably don’t need to say much about this, but I thought I’d just point out how outrageously unethical the new Arizona immigration law is. It’s not just a bad law, it’s an unethical law, an unjust law, and it cuts deep into liberty and freedom — values that, I’m under the impression, are supposedly important to folks who have been making quite a stink lately. [Here’s the actual law.]

Some people (like, Fox News and CNN) are saying that liberal critics of the law are concerned about racial profiling. To my mind, racial profiling is the least of the concerns. A bigger concern is arbitrariness.

Arizona basically now requires law enforcement to demand papers from any person that any officer deems suspicious or illegal in any way, and permits those officers to detain those people on these grounds alone. It doesn’t specify the look of that person. It doesn’t specify the nationality of that person. It just specifies that a cop must be suspicious of that person being in the country legally. How does it ensure that the decision to request papers or detain a person won’t be based on the arbitrary whim of the police officer? It doesn’t. Presto. Carta blanca.

This differs dramatically, I think, from current criminal law which enables an officer to arrest or detain a person with “probable cause,” where that probable cause is a reasonable suspicion that a person has committed a crime. Criminals come in all shapes and sizes, so some non-arbitrary evidence — blood stains, eye-witnesses, a weapon, so on — is required that will distinguish the criminal from the non-criminal. Not so with citizenship. With citizenship, there is no non-arbitrary evidence. Some attributes may function as decent proxies for non-citizenship — brown skin, a Mexican accent, dirty clothes and shoes — but those proxy attributes aren’t even close to “evidence” in the traditional sense of the term. Many hard-working and voting citizens also have those attributes (about 16 million naturalized citizens and 37 million foreign born).

This means, in effect, that you will need to carry your papers, or at least some legal documentation, with you at all times, no matter what you’re doing. If you go to the gym. If you go on a run. If you take the dog for a walk. You need to have your papers.

Oh, sure, clean white people with ‘merkin accents and nice shirts will likely not fall victim to the vagaries of this law. They’re way too American, despite the fact that they may be Canadian.

As it happens, the Governor is apparently somewhat concerned about the racial profiling implications of this law (not the above-mentioned problem with arbitrariness and universalizability), so she’s instructed the Arizona Peace Officer Standards and Training Board to establish a training program for officers on how to “appropriately implement Senate Bill 1070.” Nothing cops like more than “sensitivity training.” And hey, there’s no mention in that executive order either of just what one is to be sensitive to.

Even if nobody falls victim to the law, this law cannot be justified. I fully and completely expect it to be deemed unconstitutional if it ever comes to the Supreme Court. But, then, I’m not a legal scholar, so I’m happy to be shown the error in my reasoning.

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Sleepy

April 22, 2010

My sister and I have another publication out, this time on treating the sources of sleep problems.

Oh, sure, I know what you’re going to say: What? You don’t work on sleep. You work on environmental ethics.

True, that. But I’m a versatile cat, dig? A veritable renaissance philosopher.

Here’s the back story on my philosophy of sleep stuff. A lot of my research focuses on freedom, autonomy, and obligations stemming from freedom and autonomy. Most of the time, to suss out obligations stemming from freedom and autonomy (as opposed to harms), I hone in on arguments without straightforward victims (as victims are commonly conceived). The environment ends up being a pretty good source of cases where nobody gets hurt in the traditional sense. So I employ cases in environmental ethics to challenge what I take to be the dominant view in applied ethics and public policy.

My sister, as it happens, doesn’t work in the environment. She’s a public health demographer and statistician whose primary body of research focuses on sleep. She has been working for a while on identifying social determinants of sleep, mirroring, in many respects, some of the work in the social determinants of health. She is also, as it happens, someone with whom I speak on a regular basis.

At any rate, we talk…and in talking, we talk about our research. The social determinants of health, as it further happens, has this peculiar non-empirical dimension that also spills over into the justice and political theory literature, which is really my domain.

And so, there’s one final piece of this puzzle: sleep is a very strange behavior. Unlike most behaviors that are, roughly speaking, behaviors that we choose — I choose to exercise or eat cake — sleep doesn’t admit of the same sort of analysis. Why not? Because it’s a non-experience good. I’m actually not even sure if it is a ‘good’ in the technical sense. We don’t choose to sleep in the same way that we choose other things in our lives. That observation about the peculiar nature of sleep, coupled with concerns about how such sleep-related choices, are all caught up in the picture of autonomy that we employ, as well as, ultimately, the relationship between autonomy and justice. Our obligations, I think, stem from our autonomy.

So you see, the thoughts are not as distant from one another as it first might seem.

Here’s the abstract:

Based on theoretical and empirical work, we argue that autonomy is likely an important underlying source of healthy sleep. The implication is that ‘treatment’ for sleep problems cannot be understood as an individual-level behavioral problem but must instead be addressed in concert with larger scale social factors that may be inhibiting high-quality sufficient sleep in large segments of the population. When sleep is understood as a proxy for health, the implications extend even further. Policies and interventions that facilitate the autonomy of individuals therefore may not only help reduce individual sleep problems but also have broader consequences for ameliorating social disparities in health.

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800 Years

April 13, 2010

Here’s a nice video from the LA Times on the logging of the Tongass Forest, and specifically covering a proposal by Murkowski and Young to transfer up to 85,000 acres of Tongass forest to Sealaska Corp., which, as it happens, is owned by 20,000 members of the Tlingit, Haida, and Tsimshian Tribes. So this is actually an interesting twist on forestry battles, raising questions about native american sovereignty and local versus corporate exploitation of forests. The full article is here.

Vodpod videos no longer available.

The new proposal would give Sealaska not only prime forest lands on northern Prince of Wales Island — much of it already designated for timber harvest by the U.S. Forest Service — but $60 million worth of roads the Forest Service built over the years to open up the region for logging.

The proposal has drawn fire in a way hardly seen since the early settler days, pitting many of the non-Native homesteaders, fishermen and eco-tourism operators against Native leaders, who say that after decades of outside companies exploiting the Tongass, it is time for Alaska Natives to get more than the leftover lands nobody else wanted.

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Rules of Engagement

April 6, 2010

By now I’m sure you’ve seen the absolutely horrific video leaked by WikiLeaks. If not, I’m posting it below. I think it’s your civic obligation to watch it.

What you should also see, however, is this fine article published in the New Yorker explaining the rules of engagement. I’ll also post some excerpts from that article beneath the video; including, ultimately, my own commentary.

The author of the article, Raffi Khatchadourian, addresses the legal dimension (and I strongly suggest you read his full commentary). If you’ll permit, I’ll try to flesh out the pre-legal or philosophical dimension of his points, offering a few short justifications for the laws. While you’re thinking about these issues, you may consider turning to this considerably more juicy entry on just war theory in the Standford Encyclopedia of Philosophy.

Bulleted points in green are Khatchadourian’s:

  • Proportionality. A longstanding feature of the Law of Armed Conflict, which has been incorporated into the Army’s Rules of Engagement, is the concept of proportionality: all military action must be necessary and proportional to a given threat. This means that soldiers cannot legally shoot down a couple of young teenagers who are throwing stones at a tank. It also requires that soldiers judge, sometimes under difficult circumstances, the advantages of an operation against the potential collateral damage. (The advantages must outweigh the estimated loss of civilian life in order to proceed.)

The standard of proportionality is a legal rule stemming from the non-universalizability of disproportionate force. It is related to a problem in the punishment literature; namely, as John Rawls says (roughly), justifications for punishment are not justifications for forms of punishment, or something very close to that (Two Concepts of Rules, 1954).

Simply because someone may be doing something wrong is not reason enough to warrant disproportionate punishment or violence against the wrongdoer. If Joe steals a pack of gum, this does not authorize his hanging. If Mary cavorts with criminals, this does not authorize gunning her down. To imagine that it does is to introduce the prospect that any wrongdoing whatsoever, no matter how minor, authorizes execution. As we all know, wrongdoing comes in many forms and guises, from speeding violations to premeditated murder.

  • Positive identification. All soldiers must “positively identify” a person whom they intend to kill as a legitimate combatant. According to the Rules of Engagement, this means that there must be a “reasonable certainty” that the person is displaying hostile intent, or is behaving in a hostile manner, before soldiers may attack.

The positive identification requirement stems from a concern over arbitrariness. Plainly, one ought not to engage a person on mere suspicion that he is a soldier. One must confirm such things. This has always been the case even in past wars, where battlefields were specified, but it is even more true now.

Back in the day, the rule was intended to ensure that soldiers didn’t kill their own through friendly fire. The rule should be simple enough: don’t shoot people who aren’t the enemy. Battlefields can be foggy, and it serves nobody’s purpose, certainly not your own, to shoot your own people. You lose your army faster that way. It’s bad for that reason.

But it’s also wrong for universalizability reasons, Hobbesian and (roughly) Kantian: from the Hobbesian vantage, you certainly don’t want to be a soldier who charges out on the battlefield only to be shot down by your own forces. That’s a bad, bad contract. From a Kantian vantage, to permit firing without positive identification effectively permits wanton and reckless firing against any and all living entities, including your own forces. It completely unravels the notion of good and bad guys.

In these days of urban warfare, the rule is all the more important. Civilians intermingle with soldiers, innocents intermingle with enemies, just as we see in the video. In this case, completely innocent photographers were on the ground, chatting with several others, seeking information that could potentially help the war effort. And in this case, it’s a bad fuckin’ scene.

  • Command culture. The authority to use lethal force might rest with a person who is not at the scene of the battle, and so communication up and down the chain of command often plays a vital role in determining when soldiers can fire.

The requirement that one must have appropriate authority to mete out force is similarly concerned with arbitariness and vigilantism. The thought, I take it, is related to an important rule of ethics, impartiality. When someone is on the scene of a non-battle — remember, this is prior to the engagement of a battle — it will not suffice to place the decision to engage in the hands of those who have the most to gain from engaging.

For starters, there are perverse incentives associated with engagement. If I have a very big gun, and I get spooked for no good reason, it makes sense that I may make a rash decision to liquidate whatever I perceive that threat to be. Having an outside party give the command releases me from the wrongdoing of making rash decisions.

Also, however, engagement is not a simple matter of one battle and done. A battle is a punctuated event in a war. The war itself is carried out according to strategies, which are, in principle, employed in order to pursue more generalized approaches to winning.  To permit the war to be fought through its battles may invariably undermine the overall war effort.

We can see this relatively clearly with the release of this video. Soldiers with relatively constrained authority took it upon themselves to fire upon innocent civilians, and in doing so will have potentially dealt a crippling blow to the American forces.

  • The wounded.  The Rules of Engagement and the Law of Armed Combat do not permit combatants to shoot at people who are surrendering or who no longer pose a threat because of their injuries.

Finally, we don’t shoot the wounded when they’re down. This ties back into the disporportionate use of force, but also to other considerations related to utility and universalizability.

From a utility standpoint, it doesn’t make sense. It is often said that the captured soldier is worth more to an army alive than dead, and that’s probably true here too. There is utility in potential information that could be gleaned by a post-engagement interrogation. Moreover, there’s probably considerable utility in showing compassion to the enemy, as it may result in future compassion toward our own soldiers when they are wounded.

But also, the objective of engaging an enemy — and let’s presume now that the people on the ground were enemies, even though it is clear from the video that they were not enemies — I say again then that the objective of engaging an enemy is to remove the threat (in order to win the war or simply in order to survive). If the threat no longer exists, as is the case when someone lay wounded on the ground, the only point in firing on that person a second time is to kill the person, not the enemy, as the “enemy” has already been shot out of him. Firing on a non-threatening wounded person is, straightforwardly, murder.

So, if you have any question as to why this video is so disturbing, hopefully my very short introduction to the principles and justifications of Just War Theory will help to alleviate those. Obviously, there is quite a bit more to say on this matter.

UPDATE: Here are some other interesting commentaries: Crooked Timber, Glenn Greenwald at Salon, again GGReddit, Andrew Sullivan, and more coming shortly. Right now, off to class.