Saturday, April 28, 2007

Talking about Torture: Philosophical bridges in dialogue Part 1

I really should be reading my International Investment Law textbook but my mind is still rather fuzzy despite the time of the day and I'm hoping this will clear whatever remaining cobwebs so I can get down to actually reading the dang book.

As promised yesterday, I want to briefly highlight and discuss how axiomatic choices can make for secular positions that are nonetheless highly divergent in their conclusions. One of these positions in recent times has been that of torture. In particular, whether it is ethically permissible to ever use torture and if so, under what circumstances. From them, we try to fit it within the system of a liberal democracy (or any system that respects human rights because the lack of respect thereof simply means there is no bar to torture) and further within the rubric of the rule of law (the idea of the supremacy of law in the system and those rules as a constrain on arbitrary power).

So we can start first with the deontologist and contrast their perspective with act consequentialist. For the purposes of this discussion, it would suffice to say that the first term refers to the notion that principles are fixed and do not deviate simply by virtue of the situation and circumstance at hands. Thus if it is a moral good to tell the truth or not to kill or not to torture that those principles and prohibitions are absolute (as a grotesque simplification, Kantians would argue that since consequences simply cannot be controlled by the individual but only intentions can, then only intentions matters from an ethical perspective).

On the other hand, act consequentialism (or act utilitarianism) looks purely at the consequence of a particular act to determine if something is good or bad. Generally speaking, the position thus adopted can be loosely described as “the greatest good for the greatest numbers” and can be described as the ultimate form of situation ethics. These two ethical positions are both entirely subjectively (and to their proponents objectively) valid but their conclusion varies diametrically.

But on to building bridges: assuming now that one as a deontologist wishes to persuade someone of the consequentialist bent that the prohibition of torture ought to be absolute, how would I go about doing so? Since the ethical premises are different, trying to persuade the consequentialist through deontological means is going to be fairly useless. Nonetheless, I can adopt a form of consequentialism to make that particular argument. One of the charges laid at the feet of consequentialism and utilitarianism has been that nothing is prohibited if the circumstances were right. This might be true of act utilitarianism in that only the immediate consequences of the act matter BUT is in no way true from the viewpoint of rule utilitarianism. In rule utilitarianism, one calculates based on whether the harm of promulgating a rule outweighs the good, it seeks to take not just the immediate consequences but also the long term repercussions and it also tries to aggregate all likely scenarios so as not to let a truly aberrant situation skew the weighing. Thus for example while an act utilitarian will be hard-pressed to say that he would not shoot (or torture) an innocent person if it would save the lives of a entire town (or country etc.), a rule utilitarian can accept that such situations do exist but as a rule we ought not to do so because of reasons such as undermining the trust of the citizens in the system, the unlikelihood of such a situation outside of 24 etc., the backlash one would get from other members of society (or international community).

But personally, I think the situation is harder the other way round i.e. persuading a deontologist on ontological grounds why there should be no absolute prohibition on torture but merely a conditional one. That however will have to wait till tomorrow as I am absolute knackered by Tuesdays.


Friday, April 27, 2007

Indonesia and Singapore sign two landmark treaties - International Herald Tribune

So can we get our sand now?

Stopping judges from legislating - The Daily of the University of Washington

Fun diversion from having to read more International IP Law or International Merger & Acquisitions stuff. But this is one of those articles that I read in the morning and which I then find hard to restrain myself from posting some kind of reply because of its sheer inanity and utter wrongness of it all.

I would say that I don't think a non-lawyer is necessarily barred from comment on, much less very intelligently on legal matters and issues, especially when it comes to policy. But law isn't just about outcome but also the legal reasoning behind the outcome and I personally think this is one article where the author is seriously out of her depth. If you wanted to write an article on judicial activisms and restraint and the idea of fidelity to law, at the very least run it pass a lawyer or given the slant she wanted to take, someone from the Federalist Society.

I'm tempted to do a fisking but I'll refrain from it unless someone is really really interested in the multi-level reasons for why her entire article is wrong.

One hundred fifty years ago, the Supreme Court passed a decision regarding a black slave named Dred Scott, declaring his suit for freedom invalid. The court ruled that because he was of black African descent, he was not allowed to be free, nor did he qualify for citizenship.

The decision not only violated the Missouri Compromise, a piece of legislation that ensured the freedom of slaves in the North, but it even cited the Fifth Amendment, saying that judges had no right to take property from its owner without “due process.” Scott was the property.

Today, Americans look at this court decision and ask themselves, “How did the courts get away with it?” It’s clear that the parts of the Constitution the justices were using didn’t really speak to the case, and the ruling invalidated an existing law. Not to mention it took the bloodiest war in American history — the U.S. Civil War, with more than 600,000 deaths, about 200 times worse than the Iraq war — to nullify the decision.

Although the heart of the Dred Scott case was the abolition of slavery, the crime of the court was its direct disregard for the legislature and its laws. This ruling was one of the first of many judicial tyrannies. However, few, if any, judges are prosecuted for their crimes.

Judicial tyranny is often defined by a judge’s abuse of power. Often this is seen in decisions either to enforce convictions without any support of the law or to write laws from the bench.

Today, interest groups who use corrupt judges to circumvent the legislature frequently cover up issues of judicial tyranny. Organizations like the American Civil Liberties Union (ACLU) quickly learned that it’s difficult to persuade large governing bodies to support their bills, but with the court systems it only takes a few high-paid lawyers and a couple of biased judges to make a law. This approach completely undermines the balance of powers.

Constitutional framer Alexander Hamilton said in Federalist Paper No. 78, “The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.” Hamilton, like the other framers, was greatly concerned with the power of judges. He says the courts have “neither force nor will,” which is to say they should exist as judges, not legislators or even executioners.

In 2005, the Ninth Circuit Court ruled against parental rights, making it unlawful for students to be removed from sex education programs in school. It was a blatant example of judges making laws without any voter or legislative support. This decision was made shortly after the same court banned the Pledge of Allegiance.

In response to the consistent abuse of power, Republican lawmakers tried to split the court, which is the largest of all the U.S. circuit courts, into two, creating a 12th Circuit Court. Democratic Speaker of the House Nancy Pelosi accused Republicans of “attacking an independent judiciary.” She’s right, and thank God somebody is doing it. If a lawmaker is accepting bribes, you throw him out. If a police chief is breaking the law, you throw him out. If a judge is legislating from the bench, you defend him and ensure he can continue to abuse the law? It’s backward, and I’m sure Democrats would agree if the corrupted courts weren’t so helpful to their policy-making.

Federal courts aren’t the only ones that have turned their mallets into scepters.

Massachusetts was the first state to legalize gay marriage, but at the time pollsters found that only 30 percent of the state actually wanted gay marriage, according to a Washington Times article. Special interest groups pushed the law by suing the government, and Massachusetts congressmen were ordered to write the law.

Such interest groups have a history of abusing our government processes. In fact, the first actual legislative decision in the country that has progressed toward gay marriage was Gov. Chris Gregoire’s recent bill, which allows certain privileges to gay couples. Even though you may disagree with the decision, you have to be thankful that it was made legally.

No matter how just the cause may seem, the function of the court cannot and should never be legislation; otherwise, we end up with situations like the Dred Scott debacle. Lawsuits should not be a substitute for thoughtful lawmaking. We need to stop supporting organizations that circumvent the legislature and start supporting our own right to vote.

I'm going to first blockquote a comment because I make a reference to it....
You can accuse judicial activists of creating problems by not showing judicial restraint, but the same can be said for judges who refuse to consider that the founding fathers may have intended our constitution to change with time.
Plessy v. Ferguson was a decision that clearly had roots in the principle of judicial restraint, but in retrospect it caused over 60 years of segregation. Not until Brown v. Board of Education (one of the "best" activist rulings), were blacks prompted to believe that they had a legal right to attend un-segregated schools.

Even the Dred Scott decision had a positive effect - it helped people realize how crazy and immoral slavery was, sparking the Civil War.

And this is my comment in full.
I think Alex generally hit the nail on its head here with his point about Plessy. And with regards to slavery, there was the pesky problem of the Fugitive Slave Act and the fact that slaves counted as 3/5 of a person (and Native Americans weren't counted at all) and the ability of the Federal Government to nationalize the various National Guards to put down slave revolts etc.

I would just add that Ms. Flint's notion of judicial legislation and activism and judicial restraint are pretty much empty buzzwords because there is no ground upon which one can reconcile her statements with her own notion of separation of powers.

The Supreme Court honestly believed that its decision would defuse the pre-existing tension, Dred Scott was a product of its times and stands as a classic example of what Professor Jack Balkin would call "The Problem of Constitutional Evil" in that the Constitution sanctioned the institution of slavery and it was understood by all the states that this was the case. So under Ms. Flint's notion of judicial restraint, this is precisely what the Supreme Court should have done. Anything else while morally right would not be exactly lawful.

It would thus appear that her idea of judicial activism is either a) the decision is not one she likes (Dred Scott) or b) is against majoritarian will (Massachusetts and presumably the Hawaiian Supreme Court on the issue of gay marriage) both of which reveal a profound misunderstanding of the role of the US Supreme Court as guardian and final adjudicator on the meaning of the interpretation as well as what the Constitution represents i.e. an anti-majoritarian document. This explains the electoral college, the entire system of the two houses of Congress (Senators were only directly elected recently) and the Bill of Rights. On the last, a more individualist notion of rights could scarcely be imagined.

If a law is contrary to the Constitution, it is null and void and the function of the Court is to point that out and strike it down. Thus, if marriage is a right (as it is) regardless of one's sexual orientation (which is where the debate lies), then it does not matter the extent of popular opposition to it. By way of example, in the case of Palmore v Sidoti, Burger CJ said that the court could not give effect to private prejudices and give custody of a child to the father simply because the mother was entering into a mixed marriage. Or perhaps even more analogous would be the case of Loving v Virginia which finally struck down anti-miscegenation laws, laws that were created, sustained and justified on ground remarkable similar to those used to sustain anti-gay marriage laws. And they were all validly enacted by democratic legislatures and massively popular. I would be very interested to know if Ms. Flint would consider the Lovings (or the NAACP in its push to integrate public schools) to be one of those "special interests groups which have a history of abusing our government process".

If Ms. Flint really wanted to attack special interest groups, perhaps she should consider the idea of legal standing of corporations to sue for Constitutional violations which was created almost as an afterthought by the Supreme Court and has been used to great effect by them. But even that would be a logical fallacy because it's simply a blatant appeal to emotions without any real justification for why it is right or wrong, or good or bad.

There are much deeper philosophical underpinnings to what constitutes fidelity to law, and whether one can necessarily achieve it from an objective point of view. But it's a crying shame that Ms. Flint would label judges who she disagrees with as "corrupt" without even attempting to demonstrate how they were even necessarily wrong. Now that is really wrong.


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Friday, April 06, 2007

Accepting cultural dichotomies - The Daily of the University of Washington Online

*face-palm; head-desk*

I had been "forced" to plow through the natural law section of a particular analytical jurisprudence textbook wherein I was of the opinion that the editor of the book was engaging in some rather dubious reasoning in certain of his essays that he had inserted into his book.

One of the more annoying parts was where he conflated moral relativism with moral nihilism where got me rather annoyed because it smacks of shoddy reasoning and more often than more was a serious case of moral imperialism at work.

And then I read this article which did precisely that, the author writing from the viewpoint of moral relativism down the merry path to moral nihilism.

While Afghan women can now legally vote, attend school and walk in public without a burqa, little has changed for women living in the Pashtun regions of Afghanistan since the Taliban’s fall.

The Pashtuns — also called Pushtuns, Pakhtuns and Pathans — live along the “border zone” of Afghanistan and Pakistan. Nearly 50 percent of Afghanistan’s, and 15 percent of Pakistan’s, population is Pashtun, meaning they speak Pashtu and follow Pushtunwali, a tribal code with an Islamic influence, particularly in times of war.

Relatively unchanged for centuries and hardly touched by even the British during their colonial rule, the Pashtun society follows a system emphasizing honor, respect and revenge, primarily to uphold one’s honor.

Pashtun women lack almost all rights. They can be beaten for talking back to their husbands, killed by their fathers or uncles for eloping with a man or traded to end a blood feud between clans.

According to Pashtuns interviewed by The Economist, the best way to resolve inter-clan disputes is through jirgas, or tribal courts. Often the court orders a clan to trade a 15-year-old, 10-year-old and 5-year-old girl with the enemy clan, which is called lund pur, or “wet debt.”

Pashtuns believe this exchange creates peace between clans because three generations will be connected through marriage. As one Pashtun proverb states, “Blood cannot wash away blood, but blood can be turned into love.”

Although many reviled the system under the Taliban, many Pashtuns opposed the Taliban’s Shariah — Islamic law — as being too soft. Within Shariah, women are allowed to own land, widows are not required to marry their deceased husband’s brothers or cousins and the trade of girls to settle disputes is not allowed, unlike the Pashtun system. In this society, women are property, forever tied to their fathers, uncles or husbands.

As a woman who believes in equal rights across the genders, I am internally conflicted when I learn about societies like the Pashtun’s, or other societies that have practices such as clitoral circumcision, which prevents a female from achieving orgasm.

Do I have a right, however, to impose my Western standards on another culture? I think not. Although I am strongly opposed to these practices, I don’t believe any Western influence would change the situation.

The Pashtuns have waged bloody wars against governments and groups that attempt to oversee or control their lives. Their cultural emphasis on honor and upholding honor at all costs supports their battles against foreign powers — even the United States.

To change their practices would require oppressing their entire culture.

Taking a step back and looking at our own society, one can find structured patterns of behavior, albeit at a completely different level. The average American child goes to school, then to college, gets married, buys a house and has kids. Until our parents’ generation, most women stayed at home, cleaned and cared for children.

Although we have the freedom to follow a different path, many follow this systematic process without question. In cultures as strict and stringent as the Pashtun’s, no one questions his or her role in life, and actions and decisions follow a scripted tribal code.

Undoubtedly, our culture is diametrically opposed to the Pashtun’s, but there exists a structure in every culture, and to force it to change is to threaten the society itself.

For example, clitoral circumcision is common throughout Northern Africa, and many human rights groups have tried to spread awareness to women about their bodily rights. The great majority of women believe these Western groups are crazy. To them, clitoral circumcision transforms a young girl into a woman, and they choose to partake in the ceremony.

Culture structures our daily lives, and by acknowledging this, we can begin to understand why people participate in activities that we consider inhumane or unethical.

Although my cultural preconditions register certain activities as wrong, others from another culture may see our daily activities as obscene.

I don’t believe I have any right to judge. about giving fuel to the fire. Here was my reply:

It is hard enough to get people to accept moral relativism and multi-culturalism without having to repeatedly defend against charges that it leads to moral nihilism, which (rightly or wrongly), the article gives as its overarching impression.

Assuming that we take at face value her asserted conclusion that she does not believe she has a right to judge, the question remains whether this is a necessary outcome of her moral relativism argument. After all, one could easily argue and accept that a liberal democracy is the most satisfying contingent framework on the very basis of moral relativity itself. For if all norms are subjectively valid, this does not presuppose that one necessarily has to take a hands-off approach because actions accrue as a result of those norms. Those norms in turn affect material tangible beings we like to call humans. Therefore, the appropriate question should what system best allows for all these norms to coexist to their fullest extent because we still have to adjudicate between these various norms if for no other reason than the fact that we co-exist. Therefore a liberal democracy almost by definition allows for a framework of such coexistence by protecting minority viewpoints and culture from the majority while also protecting individuals from oppressive minority cultures e.g. honour killings.

Even if we accept that culture exists outside of individuals and that it remains separate and immutable, it does not answer the question of whether that culture deserves to exist in the first place or that the culture ought to remain immutable and unchanging. Patrick Glenn argues that culture and traditions are composed essentially of information and that unless one if a fundamentalist, that information will change over time and with exposure to other cultures. It’s also worth noting that he denounces both the moral absolutist approach as well as the moral nihilistic approach.

But what is most disturbing in this "I have no right to judge approach" is that it ultimately denies the capacity and capability of every individual to determine at least for herself or himself the validity of norms and the closest approximation of Truth through reason. It denies self-actualization and it denies capacity to act in the face of true evil and oppression. If Ms. McKean does not mean to go so far, she might well like to issue a clarification or a correction.

Thus a moral relativist approach can be compatible with "imposing" a worldview or a framework wherein every individual can achieve freedom of thought and conscience. These things cannot occur where a society is coercive, repressive, thought controlling and totalitarian in those regards.

Respect for a culture does not mean remaining blind to its flaws.

Addendum: Here's a well written response over at The Broken Watch taking issue with certain unclear points of Ms. McKean's article (conflation of ontological arguments with ones based on utility) as well as an examination of the genetic fallacy i.e. just because something is from a particular place does not i) reflect that is is only contextually valid and ii) reflect its inherent validity or lack thereof.

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Monday, April 02, 2007

Schools drop Holocaust lessons | Special reports | Guardian Unlimited

I couldn't have come up with a better rebuttal of why offense cannot be a basis for limiting the freedom of speech (much less arguably education) but here is a fantastic (but very disturbing) example of potential offense on the part of the few trumping the teaching of historical fact.

From the article:
Schools have avoided teaching the Holocaust and the Crusades in history lessons because they are concerned about causing offence to Muslim pupils or challenging "charged" versions of history which children have been taught at home, government research has found.

A report for the Department for Education and Skills found that a history department in a northern city had avoided selecting the Holocaust as a GCSE topic for fear of confronting "anti-semitic sentiment and Holocaust denial" among some Muslim pupils.

Another school decided to teach the Holocaust despite anti-semitic sentiment among students, but avoided the Crusades as "their balanced treatment of the topic would have directly challenged what was taught in some local mosques".

And it isn't just one group playing...
The report, Teaching Emotive and Controversial History, also revealed that one school was challenged by Christian parents for teachers' treatment of the Arab-Israeli conflict.

Here's the mealy mouthed response from the Government:
A DfES spokesman said: "It's up to schools to make a judgment on non-compulsory parts of the national curriculum. It is a broad framework and there is scope for schools to make their own decisions."

I still it's worth making a comment here about the Sedition Act and the Maintenance of Religious Harmony Act. On their face, while insanely broad and therefore prone to abuse, there does exist a fairly massive qualifier clause insofar as regardless of whatever ill-feelings or invectives hurled, as long as it to the propagation of information and "truth" it will be fine.

Under a liberal system, it is not difficult to see how this can be used to support a liberal notion of the freedom of speech and expression. And in fact, it would tend towards more civilized discourse. So no "hate speech" but plays like Talaq which is a discourse on anti-female notions and customs within certain religions and "races" should be alright.

But it's clear that this depends on the normative values and discretion of the Executive (in the face of judicial discretion) and that is what I believe makes it dangerous.

Sunday, April 01, 2007

A Don's Life - Times Online - WBLG: History Carnival 51

My first and foremost love has to be of history and seeing how it all ties in. For a long while I was seriously contemplating becoming a military historian and a good number of my favorite books are still history books e.g. Paul Kennedy's Rise and Fall of Great Empires, Huntington's Clash of Civilizations, Boorstin's Trilogy (The Seekers, Discovers and Creators, the last of which I particularly enjoyed)

Until I got spurned by History (my grades weren't great) and seduced by other subjects (economics and then law).

But there are some great blog posts. Read them for History Is.