Separation of Church and State: The Lemon Test

Pre-amble

As I mentioned in my previous entry, most of my posts from now until the end of the semester will be me (who else?) contemplating and trying out ideas for essays.  Basically, I'm apologizing in advance for what might end up as "rambling".  For my philosophy of law paper I'm thinking of doing something about interpretation of the 1st Amendment clause concerning establishment of religion.  Originally, I thought I'd focus on this issue in relation to attempts to get creationism into the science curriculum but I fear that the content will be too heavily weighted towards legal interpretation rather than philosophical analysis.  Anyhow, I'm thinking about looking at the philosophical issues surrounding why the establishment clause was originally written into the Bill of Rights, the different ways it is interpreted, and the philosophical implications of each interpretation, and which interpretation best accomplishes the philosophical aims of the clause.


Also something went crazy with the layout so I apologize for that.


Intro the First Amendment Regarding Establishment of Religion


The First Amendment (in the context of religion) is often referred to as the establishment clause because it prohibits Congress congress from making any law respecting the establishment of any religion and impeding free exercise of religion.  (Note, it has been extended to laws at the state level since 1925).


Before we put on our philosopher beards, lets look at the actual law: 


Congress shall make no law respecting an establishment of 


religion, or prohibiting the free exercise thereof (then some 


shit about free speech, freedom of the press, assembly, 


blah, blah, blah).


So, what's the point of the law?  It seems it's to make it so 


government neither promotes one religion over another or 


interferes in anyone's ability to practix their religion of choice, and 


maybe to secure freedom from being coerced into a particular 


religion.  


The clauses work together in that if government were to enact 


policy that gave preference to one religion (or branch of a 


religion), it would be a hop, skip, and a jump away from 


interfering others' ability to practix their own religion.   


Conversely, by interfering in someone's/some group's ability to 


practix religion, they'd be tacitly endorsing others.  


There are lots of instances where the manner in which this law 


should be applied is pretty clear, and we never hear about those 


because they never make it to court.  There are however other 


instances where it's not so clear how or if the establishment clause 


applies.  


Two Interpretations


There are 2 basic interpretations of the law: the separationist and 


the accommodationist.  Obviously, the separationist view is that 


there should be a strict separation of Church and State.  The 


modern separationist interpretation (the standard one) was first 


invoked in 1971 in Lemon v. Kurtzman.  In this case private 


religious-based schools were axing for money to supplement


teachers' salaries who taught secular content.  Out of this case 


arose what is called the Lemon test.  The purpose of the test is to 


determine whether a proposed piece of legislation constitutes the 


establishment of religion, thereby violating the establishment 


clause. 


The Lemon Test


Here it is--check it!

First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; third, the statute must not foster "an excessive government entanglement with religion."


Regarding the first section, it is noted that a law can also have 


religious motivations and still be constitutional, but it's primary 


purpose must be secular.   The second section is self-explanatory.  


The third has faced the most criticism and has been interpreted 


various ways.  


One interpretation of the third part is that it is only the effects of 


the proposed law that cannot bring about Church-State 


entanglement.  For example, most "Church" charities are actually 


largely funded by the government.  Because government doesn't 


administrate or regulate the charities (possible problem?) these 


types of policies have not been interpreted as "excessively" 


entangling gov't with religion. 


Another consideration in interpreting the third section of the 


Lemon test is the purpose of the law.  Hospitals and universities 


are institutions considered to have secular purposes, for this 


reason, a law which approves funding to such institutions even if 


they have religious affiliations can be (and has been) considered 


permissible.  


Accommodationists 
One can make the argument that accommodationists are "less 


concerned about the dangers of establishment and less concerned 


to protect free exercise rights, particularly of religious minorities."  


Basically, as I mentioned before, if you give an advantage to one 


religious group it is very easy for smaller groups to be prejudiced 


against and not be able to compete for souls on a level playing 


field.  Er'body knows that whatever religion ends up with the most 


souls wins.  It's unfair for gov't to help one team while not helping 


others.  


The accommodationist position is best summarized by the opinion 


of Justice Douglas in Zorach v. Clauson: "Accommodationists read 


the establishment clause as prohibiting Congress from declaring a 


national religion or preferring one to another, but laws do not have 


to be shorn of morality and history to be declared constitutional". 


They apply Lemon only selectively because "[w]e are a religious 


people whose institutions presuppose a Supreme Being". 



Oy! Where to begin!  For my paper I'm going to attack the clause 


"do not have to be shorn of morality and history" because a) the 


(absurd) implication is that the is no morality without religion (or 


that our moral values are derived from religion) and b) that this is 


what the writers of the constitution intended and/or that this 


interpretation is implied by the historical circumstances at the time 


of the writing.  It seems Justice Douglas is taking liberties with his 


psycho-analysis of James Madison.  


Obviously, the claim that the US gov't institutions presuppose a 


Supreme Being is also pretty loony.  Suppose it is true.  What does 


that tell us about our sexual preference?  Exactly, it's irrelevant.  


Someone please tell me how the existence or non-existence of a 


Supreme being is relevant to EPA legislation.  
  
Arguments for Interpretation


I should add that the separationists, to support their position, 


appeal to one of Jefferson's letters in which he uses the phrase and 


advocates the view of "separation of church and state".  Also in 


1879 Chief Justice Waite consulted with historian G. Bancroft to 


discuss Madison's (author of the 1st Amendment) "Memorial and 


Remonstrance against Religious Assessments".  In that petition 


Madison proposes there should be "a great barrier" between 


Church and State.


This brings up the issue of how interpretation is done in 


constitutional law:  do you strictly interpret the letter of the law in 


the way it would have been understood in its era?  Or do you make 


allowances with the understanding that what made sense in one era 


might not now, and that law-makers can't foresee all future 


circumstances.  


Maybe you argue for interpretation based on intent, but how do 


you know the authors intent?  Do you have a time-travel machine 


and a mind reading machine?  It is almost certain that our own 


biases will be read into how we "interpret" the intent of a 


lawmaker.  

Anyway, I think this is a productive start.  I think I'll go though 


some of the major trials and read judges opinions and go from 


there.  I welcome any comments or suggestions.  Thanks for 


putting up for the scattered writing...



G'nite!


By the by, if you're interested in reading G. Madison's "Memorial 


and Remonstrance against Religious Assessments"  here's the link 


(it's not very long):

http://religiousfreedom.lib.virginia.edu/sacred/madison_m&r_1785.html

Random Notes On Moral Reasons (Parfit)

Ok, it's term paper season.  This means my posts will become infrequent and the posts that I do make will be mostly me trying to figure stuff out for papers.  Without further ado, lets get into my ramblings on Parfit's notion of normative reasons.


Background on Parfit's Normative Reasons


In contemporary meta-ethics people talk about "reasons for action" as normative concepts.  Don't be scurd by the fancy words.  Normative just means "to do with values" or "what is correct or incorrect".  Examples of normative words are things like: good, bad, beautiful, virtuous, wrong, etc... So, for a lot of moral philosophers reasons for action can be normative.  It may sound like common sense that there can be "good" or "bad" reasons for action but that's philosophy for you.


Now, here comes the tricky part (who needs the Quickee Mart?).  Some philosophers say that normative reasons by definition motivate action.  This is the idea that if (a sane person) become aware of a good (in the moral sense) reason for action then just the mere fact that the person recognizes this as a good reason is sufficient to motivate them to act that way.  Otherwise stated, knowing that something is good should move us to act in accordance with it.


For example, I see an old lady about to cross the street and it comes to my mind that me helping her would be the right thing to do because it would make her day better.  The mere fact that I recognize that making her day better is a right reason to act, I will also feel some sort of motivation to act.


Parfit disagrees.  He says that it is possible to recognize something as being a good reason for action and still not be motivated to do it.  It is true, he says, that certain facts (e.g. old ladies are better off when they are helped across the street) can give us reasons for acting and if we are rational they will motivate us to act for these reasons.  However, this does not imply that something being a good reason necessarily "consists in actual or possible motivating force".


This to me sounds strange.  It's like he wants to have his cake and eat it too.  Let me break it down this way:  First he says that reason are a subspecies of facts.  Well not really, but that's how I'm going to read it.  He says "if we are aware of facts that give us certain reasons for action..." What is the difference between a fact and a reason for action?  How do we distinguish the two?  Is the distinction that a reason is a type of fact (i.e. one that we are aware of) that if we are rational it motivates us to act?  But the very next line he tells us that something being a good reason does not necessarily consist in actual or possible motivating force.


Or does he?  He actually says that just because reasons can motivate rational people to act doesn't imply  that normativity in part consists in actual or possible motivation.  Does this mean that reasons motivate but their normative status (if they're good or bad) has no bearing on our motivation?  That doesn't seem right.  And how do I distinguish a good reason from a bad reason?  It seems Parfit wants to say that it's got something to do with rationality.  But suppose what would be a rational reason for me isn't a rational reason for you.  For real world examples of people differing on what a rational reason is all you have to do is observe political debates.  Er'body thinks their reasons for policies are the rational reasons.  What the crap?


Anyway, I hope I can sort some of this shit out.  If you have any suggestion, I'll all ears...

Dancing in Houston

Dancing in Houston


As most of you know I work part time as an "exotic" (I'm exotic cuz I'm from Canada) dancer.  Usually, when I'm in school, I'll dance on weekends for private bachelorette and birthday parties and occasionally in local clubs.  It's easy money, requires little time, and--if things go awry--I can at least get a good story out of it.

Today I danced at 2 birthday parties.  Lemmi break 'em down for you.


The Golden Girls


 The way it works with booking companies is that the agency will send you a text saying something like "there's a bachelorette party in neighbourhood "x" at time "t", the payment is "y"--can you make it?".   So anyway, I got two of these texts on Thursday and even though I was feeling sick all week I decided to take them cuz I thought I'd be better by Saturday (when they were taking place). 


A problem with living in a big city that you are unfamiliar with is that you have no idea how far other parts of the city are from you. Like a dumbass it never entered my head that one of these addresses was over an hour away from where I was.  So, normally what I do after I get the text and accept, I call the hostess to confirm time, address, special requests, etc...


I called the hostess for the first party and she proceded to tell me it was for her friend's 65th birthday.  But I digress...She asked me where I was coming from and I replied from U of H.  She said "Oh! that's far, it's going to take you over an hour if there's no major traffic" (Note:  Houston traffic is like LA traffic).  I'm thinking, "OMG, WTF, LOL #gettingpaidpenniesaftergas"  Shoot.  I thought this would be an easy gig, now it turns out I have 2.5 hours drive time plus the show.  Anyway, lesson is to check zipcodes on a map before you agree to do parties in a big city.


Back to my digression...so, when you've been in this binis for a while you develop intuitions about what types of groups might be problematic and what types of problems might arise with different types of groups.  It's awkward enough in the best of times to be standing in your boxers in a stranger's living room, surrounded by strangers.  You definitely want to launch preemptive defensive stikes against further potential awkwardness.  And given the hyper-religious nature of this state I thought I might launch such a strike.


So I asked the hostess if the other people in the party knew that she was hiring a dancer.  I explained that it has been my experience that not everyone is comfortable with the idea and that it might be a good idea to tell the other guests, minus the birthday girl.  I've had people run out of the room when they realized what I was there for.  It's just awkward for everyone...


Anyway, she assured me in her old-time southern bell accent that "even though we are in our 60s, we are young at heart and know how to have a good time".  Koo.


Aside:  Here's an observation.  When I am organizing details with hostesses I always ask if they have a stereo/what kind of stereo they have.  Why? Because I have music for my routine and can either bring a cd or my ipod.  Now here's the surprising thing.  Most people don't have stereos!  OMG! WTF! LOL! #wonderinghowpeoplelistentomusic.  For serious?  Maybe this is a product of being brought up by a musician but I have never known a home without some kind of stereo. 


As a child there were times when all we had to eat was brown rice, but we always had a decent stereo to rock out to.  I seriously think there's a sociology paper here drawing a correlation between people's general level of happiness and stereo ownership.  Thesis: If music isn't important in your life, there's a problem. Somebody do the study. Go! 


Carrying on with the story.  So I'm driving and driving and driving....finally Houston ends and I'm driving though farm and ranch country.  For serious.  There are cows 'n tractors and 'n shit.  I'm all "OMG! WTF! LOL! #strippinginbarnyards".  


And then all of a sudden I'm in this huge subdivision of uber-luxury homes with lakes and golf courses.    I'm talkin' 4000-6000square foot homes.  After what seems like 1000 cul-de-sacs I find her house.  She comes out to greet me, as planned.


I always do everything the same, 80% of the time.  Here's my M.O..  I give the hostess the music; explain how to press play (you think I'm joking? Trust me this is important!); explain that I will knock on the door in 2min and when the door is opened, she should press play; have the birthday girl/bachelorette seated in the room closest to the door wearing something by which I can identify her as such.


Koo.  No problems.  Now, here's what I do.  Again, I always do my cop act 80% of the time.  So, I'm dressed as a cop.  I knock on the door and start out by saying there's been a noise complaint.  Then the music starts, then I say, "Mrs. X you have violated penal code 69-69" (get it? penal code? get it? get it? it's a double entendre, cuz penal can also mean...ok, you get it).  


Then I say "Mam, I'm going to have to ask you to stand up (*stand her up*); turn around (*turn her around*); and assume the position" (*bend her over the chair*).  At this point the girls are all LOLing and OMGing.  Then I say "I said 'assume' because I assume she's been in this position before".   This is where her gurlfrenz are all "you have no idea how many times" "yeah, get her! whoohoo!" LOL! OMG!  


This is one of the funny things about being an entertainer (of any type).  You've done the show a thousand times, and you know intellectually which parts are audience favourites; but it's very easy to forget that this is the first time they've seen it.  Lines that you sometime mumble in your sleep can be comic gold to the first time hearer.  Anyway, that's a little glimpse behind the curtain. 


I've totally lost track of where I was in the story so lets just get to the part where I walk in to the house.  I walk in, and the birthday girl is seated on a bench.  Music starts.  I'm in character.  The women are hooting and hollering.  The birthday girl is loving it and, much to my delight, is a good sport.  Sometimes the "target" can be less than compliant which makes things very difficult.  


Anyway, the show went great and everyone had a great time, including me.


Oh! I forgot something.  This part is so sweet.  When I spoke to the hostess to confirm details she told me that she wanted me to work into the act that I was arresting her friend "for the crime of being so fine at 65".  I wish I could convey the genuine earnestness with which she made this request.  


I'm sure I'm not the only one who's grandmother was an angel.  If you had/have one like this try to imagine your angelic grandmother requesting some random stripper to dress up as a cop and shower her friend with compliments as part of the act.    I don't know.  Something about how much this woman cared about making her friend feel good on her birthday made me forget all about having to drive 2.5 hours for the show. 


The Latin Lowers ("Lovers" but in a thick latin accent)


I should be getting to bed seeing as I'm still fighting the flu or something so I'll be brief even though this was quite a wild party.  I don't know if anyone remembers the entry I made about the time when I was living in Phoenix and I did a bachelorette party in the hood (for realz).  Anyhow, this was kind of similar except this was in "el barrio".  


I pull up and it's a huge apartment complex with kids running around everywhere, Mexican Oompa-pa music blasting, people drinking cerveza and BBQing on their porches.  


I'm thinking to myself, "I really don't want to walk through this entire subdivision in my cop outfit, looking for the right unit number".  The asshole/prankster in me thought it'd be funny if I had a US Immigration officer costume, but I digress... 


So, what do?  I already had my pants on so, I put my cop shirt on and put my sweat shit on overtop, carried my hat in my hand, stuffed my gun holster in my bag and found the unit.  


On the porch are about 15 Mexican men drinking cervezas and BBQing.  Awkward moment with all those guys looking at the white guy in a cop outfit about to go dance for their wives and girlfriends. 


A woman comes down the steps to meet me and get the CD.  I explain how everything works.  I do the show, everything goes well.  It's a bit wild though.  


Here's the thing.  Anyone who works in this industry will tell you the same thing.  There are empirical generalizations about how members of certain cultures respond to a stripper.  In the case of Latinas you will get one of two extreme responses.  1.  Absolute terror.  This type will usually flee the scene.  Later, the other group, will physically force them to get a dance, bringing them to me kicking and screaming (I'm not kidding).  2.  The second group thinks my body is a popsicle.  For some reason the first thing they will do is try to lick my torso or nipples, or pinch my nipples.

As a public service announcement to anyone reading this who may be a member of the latter group, let me say this:  I probably don't taste very good because you are licking three layers of various chemicals.  The innermost layer is self-tanner, which, although my brand smells somewhat like animal cookies, probably doesn't taste anything like them.  The middle layer is Nivea body lotion.  How else do expect me to be so silky smooth? Also, I doubt it tastes any good.  The outermost layer is cologne to a) mask the smell of the 2 inner layers and b) to make me smell pretty.  It also doesn't taste good.

I can only conclude one thing.  Latin men must really like having their nipples licked and/or pinched.  Why else would these be such a common impulse?  Not that there's anything wrong with that.  Some of my best friends like having their nipples licked and pinched (Well, I'm actually just guessing here).  Anyway, it's just not my thing.  And...it's not part of the show.


To sum up, there were about 15 crazy women at that party and all in all they were fun.  I left with both nipples intact, and only one or two tongue width streaks in my tan.


G'nite....

Crashing your Car and Eating it Too: Part 2. Tort Law and No-Fault Car Insurance

Notes and Thoughts on "Tort Law and No-Fault Car Insurance" by Murphy and Coleman


Recap


In the last post we were talking about tort laws and how they might apply to car accidents/the insurance industry.  Recall that tort laws are laws about legal liability.  The proposal is that a no-fault system better meets our standards for justice and utility than the current model.


The philosophical concepts involved are retributive justice and corrective justice.  The latter we'll talk about...later.  Retributive justice is the idea that if someone has acted wrongly and are at fault for damages, they should be punished.  In the case of car accidents the question is whether this standard of justice can be met under no-fault insurance--where the injurer doesn't pay for damages, the victim's insurance company does.


We also discussed that there are two criteria to establish fault that usually have to both be met:  a) whether the injurer's conduct fell within an accepted standard of behaviour (barring extraordinary circumstances) and b) whether he was of sound mind.


Retributive Justice Continued
Objective vs Subjective Standards of Fault
With these two criteria for fault in mind, lets bust out the philosophy.  When we talk about the first criteria, we can ax if it is fair to apply an objective standard of conduct to er'body, including those that might not have the innate ability to achieve it.  Whachutalkin' 'bout Willis?


For example, we prolly all know someone who is a klutz.  Actually, I'll use my roommate as an example.  For whatever reason, he is clumsy.  I'm sure he didn't chose to be this way but he's always droppin' shit and bumpin' into shit.  As luck would have it, the plates and cups in our apt. are all mine from before.  Well, in the span of about 5 months now he's managed to drop and break the glass lid of my pot, 3 plates, and every single one of my mugs.  Now, because I'm Jesus I don't condemn him to Hell for breakin' all my shit because I know that my dad made him clumsy (for a reason, of course...everything happens for a reason!)


Ok, now that I've got that off my chesticles we can get back to philosophizing.  Would it be fair for me to ascribe fault to all his clumsy actions over which he has no apparent control?  It's not like he chooses to break my shit.  In other words, should I hold his behaviour to some objective standard or should I judge him based on a standard appropriate to his capabilities?


Of course, being Jesus, chose the latter but is it possible to have a legal system in a large society where everyone gets judged subjectively?  I'm not sure how well that would work out.  How would we even begin to determine what the appropriate standards are for each individual?  How would it be considered just to those who had suffered damages at the hands of individuals with "abnormal" behavioural norms?


As Oliver Wendell Homes writes in a similar example he stole from me 90 years ago by time traveling to the future and reading my blog:


"...no doubt his congenital defects will be allowed for in the courts of Heaven (that's me!), but his slips are no less troublesome to his neighbors than if they sprang from guilty neglect."


But, in the context of automobile accidents there's a prollem for the retributive system (those who are shown to be at fault must pay).  Whether we adopt an objective or subjective standard we are only punishing wrongful driving that actually causes accidents.  All the same acts of reckless driving that might cause accidents go unpunished if they don't actually cause an accident.


In criminal law, even attempts to engage in crimes are punished; eg, attempted murder, attempted rape, etc...From the retributive point of view, it hardly seems like 'justice' that wrongful driving (knowingly reckless, potentially harmful) goes unpunished.  It seems odd to say that people can drive however carelessly and recklessly they want so long as they (are lucky enough to) avoid getting into an accident.  We must then ax, should a legal system merely punish the consequences of actions, or are there some actions that tend toward injury of others that we should also punish?


We can break down the situation like this:  There are really two things going in on when it comes to punishing reckless accident-causing drivers.  1)  Retribution: punishment for being at fault for a harm-causing act. 2) Recompense: punishment from the damage caused by the act.  The problem with the retributive system is that it lumps these two issues together.


Why should it be that the punishment for the act be equal to the dollar amount of the damages?  Two people could engage in the same reckless driving and one crashes into a Kia and the other crashes into a Rolls Royce.  How is it justice that the exact same act is penalized with different dollar amounts?  How is that consistent with our notions of justice?  And, shouldn't we also be punishing the act?


By contrast a no-fault system separates the two issues.  No-fault doesn't mean that we no longer care who is at fault for an accident, only that the issue of fault is kept separate from compensation to the victim.  The victim will still get the compensation to which he is entitled.


The main point is that in order for there to be "justice" in a general sense, our notions of retributive justice do not require that compensation be tied to fault.  People can be compensated for losses without the compensation having to come from the person who's at fault.  Ok, so a no-fault system can handle the requirements of retributive justice, what about those of corrective justice?


Corrective Justice


What's corrective justice?  Well, it's the idea that if someone either gains or loses wrongfully things need to be "corrected".   In the context of car insurance, if your car gets damaged because of some crazy foo crashing into you, that is a wrongful loss; so, you deserve to have your loss corrected.
However, corrective justice does not legally entitle you to recompense if your losses are "faultlessly" caused.


So, the principle of corrective justice holds that you are entitled to compensation if you have suffered wrongfully inflicted harms.  But from whom are you entitled compensation?


In the realm of car insurance your claim might either be against your own insurance company or the insurance company of the person who hit you.  The first case is called first party insurance: in such instances you buy insurance that covers your losses if someone else hits you.  Third party insurance covers you if you cause injury to others.


According to no-fault insurance the victim's right to compensation is against his own insurance company (first party).  The right is derived from the contract he has with the insurance company.  The legal question of who pays in this case is clear, but does it satisfy our moral desires?


Moral Questions in Corrective Justice


Is all we require morally is that victimes receive fair recompense?  Or do we also want the injurer to pay something too? It appears our everyday notions of justice include something about people at fault having to pay for the damages they cause.


Reenter retributive justice--the idea that people who are at fault should be penalized.  It seems under the no-fault model we can accomodate both retributive and compensatory justice.  How?  Well, our notion of compensatory justice is satisfied when the victim is compensated for unjust losses (his car was damaged through no fault of his own).


We can satisfy retributive justice by penalizing the injurer with a fine or prison, or both--so long as the person at fault is penalized somehow.  Notice, we needn't penalize the injurer with the cost of the damage; we can penalize other ways.  Ok, I need to stop using the word "penalize" because I hear Beavis and Butthead every time I write it.


Some might protest that it is contrary to justice that an injurer not pay for the damages he has caused.  But is this really true?  Justice requires that the victim be compensated where he has suffered unjust losses.  Does it really matter where the compensation comes from?


If I owe the bank $100.00, do they really care if my mommy pays it for me or I pay for it?  Not really.  The issue is that the debt be repaid.  Who repays isn't that important.  As I said previously, the injurer can be punished in other ways, it need not be by paying for damages.  The proposal is to separate punishment of the injurer and restitution of the losses to the victim.


Of course the analogy between repaying debt and paying for injury and damages to another driver isn't perfect.  The obligation to repay debt is derived from a contactual obligation whereas the latter isn't--it's derived from having done wrong.  But unlike many cases of compensatory justice where a wrongdoer's intention was to gain at the expense of the victim; in the case of car accidents, there (usually) isn't any intent to gain by the injurer.  Once again, accidents are...accidental.


So to summarize we can see that tort law probably doesn't apply equally well to all situations where people are legally wronged.  In the case of a crime where the injurer's intent is to gain by illegal means compensatory justice tells us the criminal should repay the loses suffered to the victim.


But in the case of auto accidents, there is no intent on by the injurer to enrich themselves by crashing into the victim's car.  For this reason, if the injurer drove irresponsibly, we may want to apply principles of retributive justice for their actions, but it doesn't seem necessary for justice that the injurer pay the costs of the damages.  The victim can be compensated by his own insurance company, without any affront to our notions of justice.

Crashing your Car and Eating it Too: Tort Law and No-Fault Car Insurance

Notes and Thoughts on "Tort Liability and Corrective Justice" by Murphy and Coleman


Overview
Suppose you're a baby and you're driving my car because the Beatles' song told you too.  You crash the car and destroy someone's beautiful pink flamingo lawn ornaments.  Who should pay to replace the flamingos?  Most reasonable people would say it's the baby's fault (well, maybe not, but play along).  But what if it was determined that the Beatles, being a rock and roll group, sing the devil's music which hypnotizes babies in to driving cars and that when the song's over, baby will crash?


Now things aren't so clear are they?  If forces outside baby's control caused him/her to drive and crash, maybe we ought to reconsider where the fault lies!


Ok, these are admittedly horrible examples that will do more to confuse the issue of legal liability than help, but now you're thinking about it right?....right?....right?


I'll get to the point before I lose my meager audience.  Today we are going to talk about tort laws (liability laws) in the context of car insurance. Yay!  Fun time!


Definitions and Framework
 When someone gets injured (physically, emotionally, financially) the basic legal assumption is that the victim must bear the losses/injuries.  Yup.  You read that correctly.  Notice I di'int say anything about whether they injured themselves or not.  'Cuz self-injury happens.  I stub ma'toe all the time but it doesn't immediately entitle me to restitution. (Is restitution the oldest legal word?)  Or sometimes the wind picks up sand and blows it right in my eyeball--again, injury doesn't automatically guarantee restitution.  Or sometimes I damage my own property cuz I'm clumsy.  In legal language they say "initially losses lie where they have fallen".


So, check it.  We gah kick this up a notch.   Tort law is all about specifying the conditions under which this basic position (that losses lie with the loser) can be overridden.   We gots rules for this stuffs.


The first set of rules are the liability rules which are the conditions a victim must meet in order that another pays for his losses.  For example, if Vicky the Vandal scratched the paint off your car for no reason except to amuse herself, this would probably fulfill one of the conditions that entitled you to compensation for your loss.  The losses would no longer lie with you.


There are 2 kinds of liability rules:
1)  Strict rules of liability in which the victim must establish that
     a) the defendant acted
     b) the victim suffered a compensable loss
     c) the defendants action caused the loss
2)  Rule of fault liability in which the victim must establish all of (1) and
     d) the defendant's conduct was at fault


Notice the important distinction between the two kinds of liability laws: in (1) there is no need to demonstrate fault--merely that the injury was a consequence (intentional or unintentional) of the defendants action (i.e., there was a causal relation between the defendant's act and the injury to the victim); whereas in (2) fault must be established, in addition to the conditions to (1).


The rules of the defendant are the rules of positive defense.  Basically, these are the conditions under which a defendant can legitimately avoid having to pay compensation.  Suppose you are a master hypnotist and hypnotized Vicky the Vandal to scrape the paint of your own car.  This likely scenario might get Vicky the Vandal off the hook for paying for your new paint job.


Where's the Philoso-beef?


So, what's this all got to do with philosophy?  Sounds like the legal system's got shit pretty much figerd out, now youz gong brang in philosophy an' mess shit up?  Why you philosophers always gotta do that?


Yo, check it.  What's the philosophy behind fault liability?  The standard understanding is that it is necessary for justice.  If Vicky the Vandal can be shewn to be at fault (maybe because of intent to cause damage) then it seems to follow from the notion of justice the Vicky pay for the losses to the owner of the car.


Wut Wut about strict liability laws?  Wutz philosophy gotz to say about them?  These are presumed to be there for reasons of utility.  It seems that society is better of if individuals or groups who are caused to have losses, are compensated by those who caused the loss.  If victims had to pay for their own losses because of, for example, the negligence of others, the social effects will be undesirable.  It would mean victims might suffer because of the negligence of others and/or there will be no incentive for people or groups to consider the possible impacts of their actions/policies.


So, now we're starting to talk a little philosophy.  But wait! there's more!  What if these assumed goods are just that--assumed.  What if we've built our whole system of tort laws on false assumptions?  What if fault liability better promotes utility and strict liability better promotes justice? Oh! Snap!  And it doesn't end there.  We're looking at tort law as though there are only 2 possible ways of doing it, how can we properly evaluate these 2 methodes if we haven't even explored other alternatives?  Stoopid philosophy, why you makin' me crazy all the time?


To examine these fun questions and more, we will look at tort laws in the context of automobile (who uses that word anymore? I'm going to use "whip" instead) insurance.


Justice and the Cost of Whip Accidents


Ok, for those of you who aren't hip to the jive and connected to today's youth culture to the extent that I am, "whip" means "horseless buggy".


First let me make a few comments on no-fault whip insurance and accidents: a) cases aren't handled individually; that is, for every accident there isn't a court case.  b) the costs of repaying the losses aren't applied to the person who's fault it was.  This might bother some because it seems contrary to justice.  If the person who's fault it was doesn't pay for the damage, how is that fair?


Not only would it seem unfair that a driver who caused an accident doesn't pay for it, but a further injustice is that the cost is distributed to all drivers covered by that insurance company, regardless of their driving record or involvement.  That just seems tripple unjust.


But wait!  Does it seem fair that a normally conscientious driver who makes a slight driving error be on the hook for the cost of someone's car and hospital bills?  What if those bills put the driver in permanent poverty.  How can we say it is just that someone (and their dependents) must live a life of poverty because of one small driving error?  That doesn't seem like justice either.


It may seem trivial but accidents happen by...accident.  They're not called "on-purposes".   Maybe so. But one might reply that not all cases involve conscientious drivers.  So, what do?  Do we have one set of rules for car accidents caused by intentionally reckless driving and another for innocent accidents?  The prollem with that is we'd still need, in many cases, a trial to determine fault.  So we're back at square one.


Retributive Justice


Proponents of retributive justice say "wrongdoing deserves its comeuppance:  a measure of pain, suffering, or deprivation should be extracted from wrongdoers, and the deprivation should reflect the nature and magnitude of the wrongdoing."  A subset of this view is that the bar for punishment is set where the perpetrator is shown to have been morally defective.  So, penalization arises (he he...he said penalization arises!) when legal fault is shown to be related to moral fault.


The basic retributive argument goes: if someone's (morally) defective conduct is a relevant factor in how/why the harm was brought about, then he is responsible for the harm.  Along with that responsibility comes the obligation to pay for the damages.   Justice is served...(bitches!)


But we might not want to accept such a hyper-moral system of law.  Not all laws are moral laws (e.g. traffic laws) and there are questions about who's standard of morality we are going to apply (mine).  Just because someone had one too many drinks before driving doesn't mean the person is immoral.  Irresponsible and foolish perhaps, but drinking and driving isn't immoral just as it is hard to see how speeding is immoral.


Maybe instead we ought to abandon the criterion of moral character.  It might make more sense to say that, in the interest of justice, penalties should befall those who fail to satisfy "the legal standard of due care".  So, instead of ascribing fault based on some moral standard, we base it on a legal standard.


Two Criteria to Establish Fault
When we assess fault, legally or morally, there are often two criteria that are evaluated.  First is the relationship between the act and the appropriate standard of conduct of a situation.  Here we ax, to what degree were the driver's actions consistent with appropriate actions in a similar situation.  To the degree that they deviated we ascribe fault.  A defendant or their lawyer might try to avoid fault by arguing that their actions didn't fall outside of a norm or that there were extenuating circumstances that explain the erratic driving (there was a cougar in the car).


In short the defendant will try to avert fault by showing that either their driving was consistent with a driving norm or that there were special circumstances for which they fell outside the norm that absolve them of blame.


The second is the agent's state of mind.  Maybe, unbeknownst to the driver, someone slipped him some crazy pills before he got behind the wheel.  Or maybe he was irreconcilably upset cuz he heard over the radio that the Justin Beiber concert was cancelled.


Important to both of these criteria is that to establish fault they often have to both be true of the defendant: that his behaviour was outside an accepted legal norm (for no good reason) and that he was of sound mind.  Also, keep in mind that these criteria are about establishing fault, not strict liability (causation).  An implication of this is that people are only penalized for genuine wrongdoing.


In the next installment we'll look more closely at problems with retributive justice when applied to auto accidents and introduce another concept of justice, "corrective justice".  Stay tuned!

The Arguments from Queerness and Relativity (Mackie Part 2)

Other Mackie Articles
Mackie on Subjectivity vs Objectivity
Mackie Intro and Second vs First Order Ethics 

Overview
Do objective moral values or principles exist?  Or are we dancer?  When someone says, "it's wrong to do x" or "you ought not to do x" it seems as though they are referring to something objective about or in the act.  That is, we are referring to some real quality or property in the act.  Mackie says this is a quirk of language and that moral properties and values don't exist in any real sense (i.e., the way we use language makes it seem like we are referring to something but actually we aren't).   He gives two arguments for his position: the argument from relativity and the argument from queerness.

Argument from Relativity
This argument is fairly straight forward:
P1. It's an empirical fact (that's science!) that many cultures around the world both historically--and now--have very different moral concepts, many of them in genuine opposition to each other.

[P1*  However, disagreement alone isn't enough to prove there are no objective moral values, so I'll offer a further argument.]

P2.  (Argument from Arrow of causation and constructivist account of morality) One way to explain the difference in moral judgments is that a culture's moral values arise out of how they live their lives.  The ways of living comes first, the moral judgments come after, not the other way around. For example, if a culture finds polygamy morally acceptable, it's because that's how they live.  A community doesn't first decide what types of marriage are appropriate, then modify its behavior.  If we accept this interpretation, then moral values aren't objective; instead they are a consequence of social structures. 

P3.  The moral realist has another way to explain moral differences which is to assume that there are objective moral facts.  The difference between moral values in cultures/moments in history arises because some cultures are (somehow) more aware of the true moral values than others.  Some cultures just have better perception of moral qualities than do others.

P4.  (Abductive Argument) However, if moral values are objective, giving an account of how entire cultures can fail to perceive them is not going to be easy (or plausible).  Instead we should adopt the constructivist explanation: i.e., we construct our values based on the normal behaviours and arrangements in our particular culture--rather than there being objective moral values that people somehow (mis)perceive.

Conclusion:  Because the constructivist account is a more plausible explanation for the wide variety of often conflicting moral positions we observe, we should say that there are no objective moral values.

Possible Objection 1: Moral Reformers Exist 
Moral judgments aren't merely a matter of conforming to a social standard. There are cases of moral change and reform throughout history. For example, the abolition of slavery, the civil rights act, advance of women's and, recently, gay etc...

Reply 1: Move Toward Consistency
There's aren't changes in the moral code, rather, they are moves toward consistency in the moral code. For example, the moral argument for the abolition of slavery was that slavery was inconsistent with the pre-existing ideals of all people being born free and equal before the law. 

Possible Objection 2: Instances of Universal Principles
The specific rules vary across cultures however they are instances of a more general universal rules. E.g., do whatever will bring about the greatest amount of good. So, of course what brings about the greatest amount of good will vary across different living circumstances. But this doesn't undermine the fact that the general rule is universally true. And so, morality does have objectively true principles.

Mackie's Reply: It's Only a Partial Counter
Accepting the above line of argument means that the specific laws are only derivatively and contingently objectively true. That is, their objectivity relies on their being instances of universal laws. Since the specific laws are dependent on local circumstances that means that if the local circumstances change, the objective truth of the specific laws will change. But this doesn't reflect what people think about their local moral rules. They think that their specific rules are objectively true and not merely derivative of universal rules or contingent on circumstance. 

For example, in some cultures they believe it's wrong to eat pork. They don't think this is wrong because it's an instance or derivation of a more general universal rule. They just think it's wrong to eat pork "period". Also, they don't think that if circumstances changed, it would be OK to eat pork. In other words, the specific rather than a general rule is considered to be objectively true. And it's objective truth isn't derivative of a more general rule, nor is it contingent on circumstance. 

Argument from Queerness
This argument has two parts, one metaphysical (to do with the nature of something's existence) and one epistemological (how we come to know something).

Metaphysical Argument: Suppose there were objective moral values: real qualities that were part of the world--in short, they exist.  What would they be made of?  Do they inhere in matter?  Can I taste them?  Touch them?  What colour are they?  How is it that we can sense them but not explain their properties?  It seems they would be queer entities or properties indeed! (Not that there's anything wrong with that--some of my best friends have queer properties).  

Epistemological Argument: Setting the metaphysical issue aside and continuing with our supposition, by what faculty might we come to know these queer qualities?  If I can't see, touch, taste, smell, or hear them, by what sense faculty do I come to know them?

It seems any theory that says moral values are objective must give us some sort of account of how it is we come to know them.  And to reply that ethical thinking occurs simply by sitting down and having an 'intuition' turns ethical thought into a travesty of a mockery of a sham.  What about application of reason?  conceptual analysis?  deliberation? 

The only possible good defense to this argument a realist can offer is to somehow show that these supposed moral qualities/properties can be known empirically.  

So, what might these real moral properties be like? According to Mackie, they'd have to be something like Plato's Forms.  A quick and dirty explanation of Plato's forms is that they are the perfect abstract notion of all qualities and things.  Well, not only are they abstract notions but they actually exist somewhere, in some sense.   Consider the Form of the Good.  This is the ideal goodness to which we all ought to strive; and although it is an ideal, it also somehow exists.  In what way do ideals objectively exist? 

The Problem of Motivating Force (Another metaphysical argument)
Anyhow, Mackie's argument isn't specific to Plato's forms. He argues that any moral realist position would be susceptible to the following argument:  According to Mackie, for a moral realist the properties of the "goodness" or "badness" of an act must not only be sensible but must also motivate action. 

For example, recognizing an act as "good" is not simply a matter of perceiving that property in something and thinking, "huh, that thing has 'goodness' in it--cool," it also necessarily provides the knower with a direction and motive for action.   So, when we recognize something as good, it should also incite us to action.  That is, knowing something is good should also motive us to pursue it.  And the same will apply for all moral values (if we perceive the property of 'badness' in something, it must also motivate us to avoid it).This meta-ethical position is called "existence internalism" (not to be confused with and not related to internalism in epistemology).  

But why should the realist accept this condition imposed by Mackie?  Why can't the realist say that it is possible to recognize 'goodness' in something and not have it motivate action?  I suppose the realist could do that, but then the realist has to give up the claim that moral values/properties of an situation or act do motivate action toward the good, which is a move they probably don't want to make.  It relegates moral properties to the same status as 'red' and 'heavy'.

More Queerness... 
In a particular action/situation, what would be the relationship between an objective moral quality and the act's/situation's natural features?  

Take the example of an act of cruelty.  Why do cruel acts also have the property of 'wrongness'?  The typical answer is that the act's wrongness is a consequence of its cruelness: it is wrong because it's cruel.  But the realist can't use this explanation because their argument is that moral values are in the act as natural properties, so appealing to a causal relation (x is wrong because it's cruel)  is off limits. Cruelness and wrongness have to exist independently of one another.

Furthermore, how do we rule out that judging a particular cruel act as wrong isn't simply a consequence of our culture?  There is a wide range of cultural opinions on what constitutes, for example, 'wrongness' in regards to treatment of animals.  Isn't an account of differing cultural values a better explanation for the diversity of views (rather than some groups' moral faculty being more accurate than others')?

The realist might reply the wrongness supervenes on the cruelty of an action; that is, the property of wrongness is a property that comes about wherever there is the property of cruelty.   But how do we explain the notion of properties having properties?  It seems a little...mmmm...queer!  Is it not a more likely account that our application of the term 'wrong' to cruel acts is a consequence of our subjective response to cruel acts--not that we are perceiving some additional natural property in the act.

The realist's position in regards to supervenience of properties is actually quite defensible. In contemporary philosophy (especially of mind) the notion of supervening properties is almost unanimously accepted.  For example, the property of consciousness supervenes on the physical properties of the brain.  This notion can plausibly be extended to acts.

So, there you have it, the arguments from relativity and from queerness, both against moral realism.  Whaduyuthink?  Are you ready to give up the chimera of objective moral qualities?  I should add that giving up objective moral values doesn't mean giving up morality, just objective morality.