Against Traditional Morality

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  1. Avatar kenB
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    I disagree. All offense-based morality is based on animus toward those who dare to differ from the majority. And offense is an unacceptable basis for law.

    Does this include laws against public nudity or public sex acts? I see offense but no harm there.Report

    • Avatar North in reply to kenB
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      For the former KenB I agree; for the latter I suspect that some actual harm (small but non-zero) could probably be demonstrated. It’d depend mainly on your definition of public.Report

      • Avatar Jaybird in reply to North
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        says:

        On behalf of the Irish, what about public urination?Report

        • Avatar Kenneth in reply to Jaybird
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          I’d say it’s provable that public urination does harm in the public sphere. Certainly it’s acidic and erosive to any buildings or sidewalks it’s done to, not terribly healthy if you do it to a tree in a public park (and encourages saline-seeking animals like deer to then chew on said tree, damaging it). And then there’s the smell factor, which depending on the frequency of urine application can make a place downright inhospitable and cross the line from merely being nasally offensive to actually harmful of the collective public’s right to clean public spaces.

          Now for public nudity… I mean heck, we let people like this walk around in spandex, so I guess there can’t be too much more mental harm done to the public in letting them just remove the last layer. It’s not like anything’s really left to the imagination there. I suppose you could make a case if they obviously have a wiping problem or something and are sitting on public benches or public bus seats? But then just make it a law that the nudists need to carry around a towel to sit on (which, from my one experience at a nudist camp, is pretty much something they do anyways so they don’t apply bare buttocks to a dirty surface when they sit).

          As for public sex… yeesh. Americans are such silly prudes.Report

          • Avatar James Hanley in reply to Kenneth
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            I think your urination argument makes sense. Not enough to justify classifying someone as a sex offender because they peed in public, but enough to legitimately ban it.

            And that nipple hat picture is awesome. Thanks for that.Report

            • Avatar Kenneth in reply to James Hanley
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              says:

              I agree – there’s plenty of reason to ban public urination. Some difficulty for nudists inasmuch as they can’t enter a restaurant or many other places that subscribe to “No shirt, no shoes, no service” health code requirements to use a semi-publicly-accessible lavatory, but if you’re a nudist on the beach, almost assuredly there are public port-a-johns and wash stations somewhere around.

              It’s also easy to see how the arguments to ban public urination match the arguments to ban public defecation. Same deal, really.

              Now, IF you could show a reason to require minimal coverage of the groinal area for public health reasons (e.g. exposure to human waste), then I’d be ok with a universal health code requiring people to put on at least a bikini bottom or pair of underoos before they go places. Heck, couldn’t be worse than we already get with the occasional overweight individual toddling down the street wearing nothing but a speedo and some flip-flops. (And my apologies for the mental image; I figure it’s no worse than the other link prior).Report

              • Avatar James Hanley in reply to Kenneth
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                if you’re a nudist on the beach,

                For my own part, I’d not be bothered by having both clothing optional and clothing required sections of the beach, and well marked so people know which they’re getting into.Report

          • Avatar Matty in reply to Kenneth
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            As long as you are reasonable with the enforcement on the public urination thing. I go hillwalking a fair bit and would not be happy if tracking me down for pissing behind a boulder in the middle of nowhere was made a police priority, or ‘hold it in for the next 5 hours till you get back to a built up area’ was enforced.Report

            • Avatar Kenneth in reply to Matty
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              For the record, yes, I think reasonable accommodation should be made. I was thinking more about the smaller-scale public parks in urban areas. Growing up we had a devil of a time getting tourists not to pee on the trees – they’d do that, then the deer in town would eat the bark round the tree looking for salt, and come spring the tree would die because it lost too much bark near the base.

              And of course, urine-soaked alleyways and other such areas are just deplorable.Report

      • Avatar kenB in reply to North
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        says:

        I was momentarily confused as to why this was for the former kenB. 🙂

        But anyway, where I was getting at in general was that there seems to be a similar level of “harm” between my examples and gay marriage, and the argument I quoted doesn’t seem to leave any room for legislating social norms against fully-consensual behavior.  Not that there’s anything wrong with that, but I thought it was worth bringing up.Report

      • Avatar Dan Miller in reply to North
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        says:

        I live in San Francisco which I think you could describe as a laboratory for public nudity (laws against it are almost never enforced AFAICT, and it’s common at big community events like Bay to Breakers or various street fairs).  I haven’t noticed any harm coming from it–it’s no weirder than a gym locker room or such.  In general, I think this works better as an argument against public nudity bans than against gay marriage.Report

    • Avatar James Hanley in reply to kenB
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      says:

      kenb,

      Without intending to be dismissive, I can’t speak to all possible cases without pretending I know in each case whether there is actual harm or not.  I’m still for being somewhat cautious in cases where we can’t be sure whether the restrictions are offense-based or whether there is the possibility of harm.  I’m inclined to agree with North in the particular case, but am under no illusions about my expertise on the issue.Report

  2. Avatar North
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    That’s a fine piece of writing James. Really great stuff!Report

  3. Avatar mark boggs
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    Harm is the root principle for moral opposition to rape, murder, theft and such similar actions that cause clear identifiable harm to discrete identifiable individuals. Offense is the root principle for moral opposition to things for which the majority has an aesthetic dislike, but that can’t be demonstrated to have a clear identifiable harm to discrete identifiable individuals.

    Not sure John Stuart Mill could have elucidated that with any more clarity.  You said in two sentences something that usually takes me about 30 comments to express.Report

  4. Avatar Tom Van Dyke
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    says:

    A fine essay, Dr. Hanley.  The project to abolish moral reasoning in law is out in the open, which was the purpose of my own post.  The case for abolishing is made well here, and I have no objection to its internal validity, nor on the whole, how my own position is characterized here.

    Harm is an appropriate basis for law; offense is not. 

    I am cautious about embracing this principle, and the validity of my Burkean prudence on this cannot be mooted by the above assertion—which, however, seems a fine and valid argument for legislative debate or as a political philosophy.

     I think the historical record makes it clear that offense-based moral reasoning does inherently fail the rational basis test.

    Well, this is where we get into trouble.  Assessing the historical record will necessarily be subjective: there’s simply no getting around that.  But the next step, the conclusion, is the scary part—that to disagree with the subjective judgment that the historical record condemns “offense-based moral reasoning” is objectively irrational, i.e., “fail[s] the rational basis test.”

    Opinion has been transmogrified into fact, with the power of the state to enforce it.

    My own essay argues that the Constitution doesn’t require traditional mortality or any respect for it; neither does it require—from the power of “rational basis” as the judicial Ultimate Weapon—that we toss it out.  Either course, of “offense” or of “harm-only” is constitutional.

    So far, it’s still legal that we vote on our subjective judgments as to which course is better.  So far, it’s somewhat legal to prefer that America not become Amsterdam, and not have a court—the state—declare that preference to be irrational.

    So far.  That is the fact I most wished to bring out into the open.Report

    • Avatar James Hanley in reply to Tom Van Dyke
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      I have no objection to .. how my own position is characterized here.

      Good, I’m glad I didn’t get that (too) wrong.

      So far, it’s still legal that we vote on our subjective judgments as to which course is better.

      And I will argue for it to continue to remain legal to do so.  That, of course, is separate from the question of whether such a vote can create valid law.  E.g., in the case of Church of the Lukumi Babalu Aye, I don’t think there’s a good argument to be made that the votes of the city council were, or should be treated as, illegal.  They simply were, in the end, invalid.

      Thank you for your response, and I agree that the argument is not such that a Burkean is compelled to accept it, only that one can accept it within a Burkean paradigm.Report

    • Avatar Jon Rowe in reply to Tom Van Dyke
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      says:

      “from the power of ‘rational basis’ as the judicial Ultimate Weapon—that we toss it out.”

      The “rational basis,” I don’t think is the “ultimate” judicial weapon.  Rather “strict scrutiny” is!  The way it works, or is supposed to, is laws that get rational basis are almost always (with rare exception) held valid; those subject to “strict scrutiny,” (with rare exception) struck down.

      It’s the “rare exceptions” that are odd cases.  In strict scrutiny land its the “racial classifications” that trigger strict scrutiny but are nonetheless held constitutional.  And when a law triggers rational basis but is struck down, there has to be some “special” reason. I think that’s why it’s necessary to frame the issue not as merely promoting traditional morality.  I’m not sure why that alone should flunk rational basis.  Or even depriving some of personal liberty.  But rather, animus against a group of individuals.

      If we want a system where deprivations of liberty that don’t “harm” others trigger heightened scrutiny, we have going to have to ditch the rational basis as default review standard.  (See Randy Barnett.)Report

      • Avatar Tom Van Dyke in reply to Jon Rowe
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        Thx for the clarification, counselor Rowe.  In the case in question, the judge floated that there wasn’t even a rational basis for the law, although that was dicta.  His main argument was indeed about group discrimination.  My objection there—unrelated to Dr. Hanley’s post here—was his method of poking through the more incendiary statements of some of the bill’s supporters.

        Since the bill passed by a massive majority, I found the method inadequate, that the judge could divine the animus on the part of 435 members of Congress.  As for the group discrimination argument, those tall weeds are beyond the scope of my own inquiry into the decision.

        I return to the question whether the Constitution and its amendments require we turn America into Amsterdam–a locution I’ll stick with as probative—for that’s what awaits if we abolish moral reasoning and the “offense-based” theory of law as unconstitutional. [Irrational!]

        [Whether we should legislate only the “harm-based” philosophy of law as The One Best Way is a separate question.  But it’s certainly constitutional.]Report

        • Avatar Katherine in reply to Tom Van Dyke
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          says:

          Why Amsterdam and not Canada?Report

        • Avatar North in reply to Tom Van Dyke
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          says:

          Tom, it seems to me that you seem to be getting the judicial process somewhat backwards in this case. The judge chose to apply rational basis… he then went through the reasons for the law that had been presented to the court. He then came up on his own with some additional plausible justifications on behalf of the law that the defenders had not offered. It was only after both of those groups of defenses failed the rational basis analysis that he brought up the incendiary language of DOMA’s writers.

          Note, please, that this pattern is in keeping with the astonishing paucity of evidence and legal justification offered up anywhere in support of anti SSM laws. Whether it be federally or in California the courts call to defenders of anti-ssm laws and say “okay present your reasons and justifications to the courts please. Note only expert testimony under oath or empirically verifiable evidence meets the standards of evidence for courts.” In all of these scenarios the defenders of the anti-SSM laws respond with crickets and silence. This leads one to only one of two conclusions: that for some reason there is something structurally wrong with the age old legal definitions of admissable evidence and testimony or that the defenders of anti-SSM laws simply have no justifications that meet the standards of formal legal proceedings.

          Which of these alternatives do you subscribe to or am I missing something here?Report

          • Avatar Tom Van Dyke in reply to North
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            Mr. North, this properly files under my own OP.  My quick answer is that Judge White propped up “good” reasons just to shoot them down for the record.  Pretty Much what Judge Walker did on Proposition 8, which resulted in that Blankenhorn mook testifying as an “expert” witness.  What a joke.

            My own reply is here as limned in Dr. Hanley’s post—Burkean prudence, which isn’t “anti-“SSM, but properly places the burden of proof where it belongs, on the “pro” side.  The supporters of DOMA are manifestly unconvinced by the pro-SSM case and its offered evidence so far—manifest by the existence of DOMA itself, which preserves the status quo against judicial edict.

            In all of these scenarios the defenders of the anti-SSM laws respond with crickets and silence. This leads one to only one of two conclusions: that for some reason there is something structurally wrong with the age old legal definitions of admissable evidence and testimony or that the defenders of anti-SSM laws simply have no justifications that meet the standards of formal legal proceedings.

            Or they just don’t want to fight about it with you or be seen as bashing gays.  To oppose SSM–or merely to not be convinced of its wisdom yet—is not to necessarily hate gays.  But as we see even in our discussions at the highly civilized LoOG, that charge is made often and loudly.

            A vote for DOMA was not necessarily irrational or hateful: neither must all 435 legislators who voted for it go on the record with their reasons to satisfy an unsympathetic judge at some future date.  This is nonsense.  But this is where we are.

            What I hope is that Judge White’s and Judge Walker’s methods and process are not upheld upon higher review. We’ll see.Report

            • Avatar James Hanley in reply to Tom Van Dyke
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              Tom,

              I understand why you say the supporters of SSM bear the burden of evidence, given that it is they who are seeking a change in the status quo.  However I argue that when no harm can actually be demonstrated–and North is right about “the astonishing paucity of evidence”–then it doesn’t take much evidence on the pro side to overwhelm the anti side. The lack of any actual demonstrated evidence of harm implicates DOMA and SSM bans as being motivated solely by animus (to steal your term), and animus without demonstration of harm cannot be a legitimate purpose of government.

              Just how long can a Burkean caution stand in the total absence of evidence that the social/legal innovation actually causes harm?Report

              • Avatar Tom Van Dyke in reply to James Hanley
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                Insufficient evidence doesn’t trump zero evidence, Dr. Hanley. It’s fine for argument—legislative debate, I say—but you still have to convince the other fellow.

                But the larger debate here, which Mr. Kowal touched on, is using this “evidence”—the social sciences—as the sole arbiter of truth, expelling philosophy, moral reasoning, religion, induction, even aesthetics as legitimate frameworks on how to order our society.

                We are nowhere near the meta-discussion, as Mr. Cahalan notices:

                You can’t prove the laws of a system by using the laws of the system. Eventually, you get down to an axiomatic declaration.

                You’re arguing purely from your own preferred framework, social science, “scientism” or materialism, pick a term—I use these without intention of being pejorative. Which is OK: within your own axioms, your position seems valid and internally coherent—and there is no reason we as a nation cannot valid choose this as our guiding political philosophy.

                There’s a whole discussion to be had on social science purporting to be “value-free,” as Mr. Kowal attempts to initiate, but leaving that for the moment, PatC’s observation stands without prejudice: We do end up each arguing from his own axioms, the twain never meeting.

                So we have two problems here: The first being that you are convinced by social science’s claims at this point but this fellow is not:

                http://www.firstthings.com/article/2012/01/same-sex-science

                Now, if you convince him, or a sufficient number of legislators, you’re home free, a point I have never contested as anything but good governance. In the answer to your question, then

                Just how long can a Burkean caution stand in the total absence of evidence that the social/legal innovation actually causes harm?

                I fear that bringing in “harm” begs your own question at this point, that law should only be a question of harm. As to “how long” is Burkean prudence valid? As long as you cannot convince the author of the above-linked essay, which is to say, a majority of the legislature.

                But the larger problem, the meta-concern, the philosophical concern—my own concern—is the handing over the reins of our society to social science, a discussion we haven’t even touched, and isn’t as simple as contesting the data referenced in the First Things link above.

                You got yr fact/value distinction, that social science that claims to be empirical—value-free—but it’s actually rife with unstated but very real “values” as its premises when it argues x is better than y. [Mr. Kowal touches on this as well.]

                And even if we decide to obey the social scientists, in the end our governance would hinge on the integrity of those social scientists themselves. Since they’re human [reputedly], I see no reason to prefer their honesty to that of politicians*.

                And unlike the “authorities” of the social science academy, at least we can vote the latter bastards out.

                And so, Dr. Hanley, I appreciate your fairness to my position to this point. As you can see, there are volumes to be written and discussed, multiple dimensions to be explored, and a comments section or two cannot do justice to what would take at least a full-time blog.

                [I will add that although some of the challenges you received in this thread would seem to be in agreement with my position, I think they’re actually invalid as challenges to your own, within your own axioms. I skipped jumping in, as my only purpose in participating in this thread is to keep clarity of my own position for the impartial reader.]

                I’m not sure I have much more to add, since most of my “arguments” are in the direction of fallibilism, that we cannot know what will happen with gay marriage. To jump in, or to wait further and see—action or inaction—both are valid and constitutional courses, in my view.

                ____________

                How Many Scientists Fabricate and Falsify Research? A Systematic Review and Meta-Analysis of Survey Data

                Daniele Fanelli*
                INNOGEN and ISSTI-Institute for the Study of Science, Technology & Innovation, The University of Edinburgh, Edinburgh, United Kingdom
                Abstract Top
                The frequency with which scientists fabricate and falsify data, or commit other forms of scientific misconduct is a matter of controversy. Many surveys have asked scientists directly whether they have committed or know of a colleague who committed research misconduct, but their results appeared difficult to compare and synthesize. This is the first meta-analysis of these surveys.

                To standardize outcomes, the number of respondents who recalled at least one incident of misconduct was calculated for each question, and the analysis was limited to behaviours that distort scientific knowledge: fabrication, falsification, “cooking” of data, etc… Survey questions on plagiarism and other forms of professional misconduct were excluded. The final sample consisted of 21 surveys that were included in the systematic review, and 18 in the meta-analysis.

                A pooled weighted average of 1.97% (N = 7, 95%CI: 0.86–4.45) of scientists admitted to have fabricated, falsified or modified data or results at least once –a serious form of misconduct by any standard– and up to 33.7% admitted other questionable research practices. In surveys asking about the behaviour of colleagues, admission rates were 14.12% (N = 12, 95% CI: 9.91–19.72) for falsification, and up to 72% for other questionable research practices. Meta-regression showed that self reports surveys, surveys using the words “falsification” or “fabrication”, and mailed surveys yielded lower percentages of misconduct. When these factors were controlled for, misconduct was reported more frequently by medical/pharmacological researchers than others.

                Considering that these surveys ask sensitive questions and have other limitations, it appears likely that this is a conservative estimate of the true prevalence of scientific misconduct.Report

              • Avatar Jeff in reply to Tom Van Dyke
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                says:

                I fear that bringing in “harm” begs your own question at this point, that law should only be a question of harm. As to “how long” is Burkean prudence valid? As long as you cannot convince the author of the above-linked essay, which is to say, a majority of the legislature.

                So slavery is fine until “a majority of the legislature” is convinced otherwise?

                And you were arguing the other side of this “(Your cramming your anti-religion down my throat!”) just the other day….Report

              • Avatar mark boggs in reply to Tom Van Dyke
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                “Now, if you convince him, or a sufficient number of legislators, you’re home free, a point I have never contested as anything but good governance.”

                This sounds like you’re saying that you’re not interested in the objective wrongness or rightness of the issue, just that it’s decided legislatively. This in itself seems to go against your own insistence on moral basis for things.Report

              • Avatar Tom Van Dyke in reply to mark boggs
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                Mr. Boggs, if the republic survived the Designated Hitter, I suppose it’ll survive this, one way or the other.

                I’m far more concerned about how we go about deciding things. If a legislator votes for gay marriage because he believes Jesus would have it that way, I’m fine with that.

                http://www.beliefnet.com/News/2004/02/What-Would-Jesus-Say-About-Gay-Marriage.aspx

                I guess I should have said that from the very first, eh? I think I buried the lede.

                Bigtime.Report

              • Avatar Stillwater in reply to Tom Van Dyke
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                I guess I should have said that from the very first, eh? I think I buried the lede.

                Bigtime.

                Maybe. So far, you’ve argued against Judge White’s decision by saying he unconstitutionally considered floor debates; that he incorrectly argued the religious aspect of the floor debates; that prudence is an argument he never considered; that if the legislature votes and the president signs, legislation is constitutional. (There are probably others I can’t recall right now since I’m tremendously bummed Sparty lost to IU.)

                So, I’m still unclear what you mean when you say you’re concerned about ‘how we go about deciding things’. I haven’t seen that argument yet in specific. What way do you think we need to clean things up to make for better decisions? Is it that the courts have too much authority to determine constitutionality? Is it that the legislature doesn’t have enough authority to determine constitutionality? That offense ought to be valued more than harms? That intent is irrelevant wrt justification? That prudence is operative unless it meets an overwhelming burden?

                You’ve offered all of these arguments, Tom. But it seems unlikely that they’re all be correct. Which one do you want to hang your hat on?Report

              • Avatar LarryM in reply to Tom Van Dyke
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                The reductio on this is obvious, and alluded to by others. If that’s the end of the argument, we might as well just shred the constitution. An odd argument from you Mr. Van Dyke, given some of your other views. (Which doesn’t of course necessarily preclude OTHER arguments as to why the case might be wrongly decided, but precludes this particular argument, which seems to be your core argument).Report

              • Avatar James Hanley in reply to Tom Van Dyke
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                But the larger problem, the meta-concern, the philosophical concern—my own concern—is the handing over the reins of our society to social science,

                I know your concerns about and antipathy to social science. I have similar concerns about and antipathy to philosophy as the basis of our thinking on what society should be. For all social science’s imperfections, its claims remain empirically testable and falsifiable. Philosophy can’t even claim that–it’s most distinguishing factor is that no philosophical claim can actually be demonstrated to be wrong. I remain astonished that someone who worries about the normative concepts within social science, and the possibility of false findings, would think that is a sound reason for accepting the wholly normative and wholly unfalsifiable field of philosophy.Report

              • Avatar Chris in reply to James Hanley
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                I have fewer reservations about philosophy than you, James, but I have always marvelled at Tom’s hate of social science (unless it comes to a conclusion with which he agrees, in which case, it’s obviously correct). His positon, should we take it seriously, would necessitate the exclusion of empirical evidence from policy and legal decisions entirely, in favor of what? First principles? Whose? How do we distinguish between them when conflicting principles exist? Historical data? Because that is certainly less biased than social scientific data!Report

            • Avatar North in reply to Tom Van Dyke
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              As James noted above me, Tom, the problem is that the anti-DOMA plaintiffs can (and have) submitted rafts of sworn testimony and empirical evidence of harm caused by DOMA while DOMA’s defenders have had nothing to appeal to but Burkean caution.

              I have trouble giving much credence to the “they’re afraid of being called bad names by gays” line of arguement. In most cases the so called experts are greatly vocal on media or politican campaigning. It’s only when requested to testify under oaths and to standards of demonstratable evidence that their voices seem to desert them. That says something about their arguements it seems to me.Report

            • Avatar James Vonder Haar in reply to Tom Van Dyke
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              Burkean gradualism is significantly easier to endorse when it is not your rights that are being denied by the method.Report

    • Avatar BSK in reply to Tom Van Dyke
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      “My own essay argues that the Constitution doesn’t require traditional mortality or any respect for it…”

      The 0th Amendment… The right to live forever!Report

    • Avatar Fnord in reply to Tom Van Dyke
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      Opinion has been transmogrified into fact, with the power of the state to enforce it.

      While we’re bringing things into the open, perhaps we should examine this attitude. Your contention is that the state is enforcing opinion on you by declining to enforce your opinion as law? That the absence of a given law constitutes state action?Report

      • Avatar Tom Van Dyke in reply to Fnord
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        Mr. Fnord, I don’t know what “declining to enforce your opinion as law” means.  I stipulate that opinion is enshrined in law because there’s no way around it, that there will always be a subjectivity about what is better, what is best.

        That’s what makes for race tracks, and democracies.Report

        • Avatar Fnord in reply to Tom Van Dyke
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          I stipulate that opinion is enshrined in law because there’s no way around it, that there will always be a subjectivity about what is better, what is best.

          Of course, and I have no problem with that. I don’t even have a problem, for the sake of this discussion, with arguing that the government should enforce the opinion “marriage is between a man and a women” (for example) as law. Laws enforce opinions.

          But you seem to be saying that what James is arguing for, by calling on certain laws to be struck down, is calling for “enforcing” of opinion by state action. So your claim, as far as I can tell, is that the absence of certain laws is state action enforcing some opinion.Report

          • Avatar Tom Van Dyke in reply to Fnord
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            Of course, and I have no problem with that. I don’t even have a problem, for the sake of this discussion, with arguing that the government should enforce the opinion “marriage is between a man and a women” (for example) as law. Laws enforce opinions.

            Mr. Fnord: This is what I’m saying, you have me right.

            It’s the judiciary presuming to declare a differing opinion as “not rational” that I think we have to tread extremely carefully with—we can end up with the state [in the form of the judiciary] decreeing truth where there is only opinion.

            Legislatures can do what they want within the bounds of the constitution, voting this opinion over that one as to what is better or what is best.  It’s the nature of democracy.  I think you stipulate this above.Report

            • Avatar Fnord in reply to Tom Van Dyke
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              It’s the judiciary presuming to declare a differing opinion as “not rational” that I think we have to tread extremely carefully with—we can end up with the state [in the form of the judiciary] decreeing truth where there is only opinion.

              When a judge makes such a “decree”, the only party it is enforced on by state action is the state itself.Report

              • Avatar mark boggs in reply to Fnord
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                Yes, it would be something altogether different if his decree forced the Lutheran Church to marry gays and that their opposition to it was illegal because their fears were irrational.

                The judge might be entitled to that opinion, but I don’t think he could put it into force.Report

            • Avatar mark boggs in reply to Tom Van Dyke
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              But haven’t the legislatures essentially taken an opinion and made it, by anti-SSM laws, truth?  And, as Hanley points out, if enough legislators have an opinion and decide to vote it as truth, are we not then back to the tyranny of majorities? 

              And the judiciary didn’t claim an opinion was based on something not rational, but that an actual law was.  The legislators and citizens can contiune on with their opinions.Report

              • Avatar Tom Van Dyke in reply to mark boggs
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                Not “truth,” but opinion-as-law.  As for the definition of “marriage,” a similar conundrum.  If the legislature redefines it as something more than one man and one woman for legal purposes, that is constitutional, and so shall it be defined.

                As for “tyranny of the majority,” it’s a cliche that often obscures more than it clarifies.  Sometimes it’s a tyranny; most times it means your opinion got outvoted.  If and where “marriage” is redefined, it’s also by a “tyranny of the majority.”  That’s democracy.Report

              • Avatar North in reply to Tom Van Dyke
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                Heh, I’m gonna bring this one up next time you start talking about the tyrannical enactment of PPACA.Report

              • Avatar Tom Van Dyke in reply to North
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                Unfair, Mr. North: I think 51-49 majoritarianism on major structural change, as Obamacare was, is bad governance.  I’d say the same on issues I agreed on, say going to a flat tax or privatizing social security.

                Actually, I don’t think I agree with either of those, but you know what I mean.Report

              • Avatar Michael Drew in reply to Tom Van Dyke
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                says:

                Obamacare isn’t major structural change.  It’s basically necessary maintenance of the existing health care arrangement to (arguably try to) address some of its accumulated shortcomings and obsolescences.  That it isn’t major structural change actually accounts for about a third of its unpopularity.Report

              • Avatar Tom Van Dyke in reply to Tom Van Dyke
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                says:

                Obamacare’s individual mandate is going to the Supreme Court, unprecedented, anything but routine.  And per my view of “good governance,”  David Bernstein writes @ Volokh:

                http://volokh.com/2011/11/09/my-take-on-the-individual-mandate-litigation/

                 So I’m not arguing that the majority would invalidate the law because it suits them “politically.” I suspect that they all really think the law is unconstitutional but because of precedent and politics they need the right political environment to say so. If, for example, both the law and Obama were polling at 70%+, and the law had been passed with significant Republican support, and some of the leading Republican candidates supported the law, the chances that the Court would invalidate it would be approximately zero, regardless of the Justices’ views of its constitutionality. Maybe Thomas would dissent.

                This is my understanding of the Supreme Court historically as well, that it’s inclined to side with good governance—consensus—more than splitting abstract constitutional hairs down to the bone.

                But this is tangential to Dr. Hanley’s post and a very good discussion that seems to be just beginning, so I’ll chill here on further comments, Michael, if it’s OK.

                 Report

              • Avatar Michael Drew in reply to Tom Van Dyke
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                says:

                The mandate is certainly the most dramatic part of the legislation (which means the law overall is of decidedly limited scope); it by all means might be unconstitutional (irrelevant); it’s certainly a significant measure; it’s unprecedented in some senses (that’s not all that remarkable a thing in regards to, like, new laws, though…) — and yet none of this means that it is major structural change.  Obamacare kept the basic arrangement of how we do health insurance in this country in place – it just sought to include more people, regulate, and fill in gaps.  Compared to other possible health care reform (including ending the employer exemption), one might even call it a Burkean measure that simply sought to adapt the essential status quo to changed underlying conditions.Report

              • Avatar Chris in reply to Tom Van Dyke
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                says:

                PPACA is a majoral structural change in the same sense in which adding another computer ranking to the BCS would be a major structural change.Report

              • Avatar Ryan Bonneville in reply to Tom Van Dyke
                Ignored
                says:

                Although maybe you can argue that the mandate is a plus-one. 🙂Report

              • Avatar North in reply to Tom Van Dyke
                Ignored
                says:

                Ah but Obamacare got a supermajority in the Senate in order to pass the filibuster. That’s considerably more than 51-49.Report

              • Avatar Ryan Bonneville in reply to Tom Van Dyke
                Ignored
                says:

                The Senate supermajority is something Tom really loves to overlook. I think his position, which probably isn’t different from the average person’s, is that, since the Senate basically requires 60 votes to pass anything, getting just to 60 is the same as 51-49. On closer examination, this doesn’t really make sense, but I can see where it comes from.Report

              • Avatar Jeff in reply to Tom Van Dyke
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                says:

                The actual vote was 51 in favor of PPACA, 49 in favor of “Barry Kenyan Soshulist” obstructionism, as proved by later votes.Report

              • Avatar LarryM in reply to Tom Van Dyke
                Ignored
                says:

                As a policy matter, while I don’t agree with you, your can hold both positions without being inconsistent.

                As a matter of constitutional jurisprudence, the distinctions tthat you wish to draw (“major structural change”; the size of the legislative majority) don’t exist.Report

              • Avatar mark boggs in reply to Tom Van Dyke
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                says:

                But just because something passes a legislature does not, by definition, make it constitutional. 

                And with the whole redefinition of marriage thing – it isn’t a redefinition of anybody’s marriage.  By using “redefine”, opponents are trying to make it seem like my 15 year old marriage to my wife is somehow mutated upon SSM being legal.  That just muddies the water.  Intentionally, I presume.

                I understand that “tyranny of the majority” gets overused, but sometimes it has validity, like when a bunch of folks determine that an offense to their sensibilities demands legislation.

                 Report

            • Avatar Will H. in reply to Tom Van Dyke
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              says:

              I think a vote from a legislator acting in official capacity is something very different than holding an opinion.
              Their opinions are superfluous; their votes are substantial.Report

            • Avatar LarryM in reply to Tom Van Dyke
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              says:

              The rational basis test is not some new fangled liberal innovation; it’s a pretty basic part constitutional jurisprudence (conceptually since 1819, though in its modern form since 1938), and it has had any of the dire consequences that you seem to imagine. It also doesn’t mean quite what you think it makes; it isn’t a statement that a certain point of view is irrational, but rather a conclusion that the state has failed to advance a rational basis for the law in questions.

              When the rational basis test – the least demanding test in due process & equal protection jurisprudence – is applied, the burden on proponents of the law is slight. Even that slight burden was not met – as even you seem to concede. You don’t seem to think even that minimal burden was required … based on what? Not our constitutional jurisprudence, surely.

              If you’re going to win this argument, given what you have already conceded, at least win it on a constitutional basis and not on a more abstract basis, you need to argue that equal protection was not implicated at all. A hard argument to make in my opinion, and not one that you have chosen to make so far as I can see.Report

  5. Avatar Pierre Corneille
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    says:

    Offense is the root principle for moral opposition to things for which the majority has an aesthetic dislike, but that can’t be demonstrated to have a clear identifiable harm to discrete identifiable individuals…. there is a large section of the offense circle that lies outside the borders of the harm circle.

    It seems to me that part of what at issue is how to draw the line between “offense” without harm and “offense” with harm, as per the public nudity / public fornication examples KenB brought up above.  I don’t have any further comment, other than to say I don’t see the harm in same sex marriage.Report

  6. Avatar Kyle Cupp
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    says:

    The critical question is what constitutes the basis of the majority’s valuation—if morality serves as a basis for law, what serves as the basis for the morality itself? My claim is that there are two bases for that morality, harm and offense. Harm is the root principle for moral opposition to rape, murder, theft and such similar actions that cause clear identifiable harm to discrete identifiable individuals. Offense is the root principle for moral opposition to things for which the majority has an aesthetic dislike, but that can’t be demonstrated to have a clear identifiable harm to discrete identifiable individuals.

    Permit me to think out loud here.  You say that harm is one basis for morality, but wouldn’t the the proposition that harm should concern me have its own moral underpinnings?  If I ask why I ought not cause harm, would one not have to give a moral argument of sorts for why harm is bad or wrong?  Are not your harm-based judgments a kind of moral thinking?Report

    • Avatar mark boggs in reply to Kyle Cupp
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      says:

      I’m not sure James doesn’t think it does.  But there is the difference between harm and offense.  A staunchly Muslim fellow might find murder and the showing of a lady’s skin near the ankle to be highly immoral.  But one causes a discernible harm while the other one doesn’t, other than to that guy’s sensibilities.Report

    • Avatar James Hanley in reply to Kyle Cupp
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      says:

      Kyle,

      Yes, and then we get into tricky territory because at some point we either make a rather arbitrary claim that “this is a first principle,” or we mumble something about turtles all the way down.  My own general approach is a version of utilitarianism, but not the objective utilitarianism that enables a state to make plans that will attempt to maximize collective utility.  Rather, it’s a subjective utilitarianism that says only the individual can be the judge of his/her own happiness.  And that’s why “harm” relies so heavily on non-consent, and why mutual consent is such a fundamental basis for allowing human actions to take place (that all depends on competence to consent and a lack of negative externalities, of course).

      The rock-bottom moral principle is that you shouldn’t be allowed to override my subjective valuation of my own utility and any actions I consent to.  Why not?  Ehhh, why?  I realize that’s not entirely satisfactory moral analysis, but it’s the best I have.Report

  7. Avatar Max Weismann
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    says:

    Mr. Hanley errs, in confusing morals with mores.

    If any thing is moral or immoral, it is so at all times and places. On the other hand, mores differ from time to time and from place to place.

    Moral: Of or concerned with the judgment of the goodness or badness of human action and character.

    Mores: The accepted traditional customs and usages of a particular social group.

     Report

  8. Avatar Chris
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    says:

    The one objection I would have to this, which has already been raised (e.g., by Ken), is that the boundary between harm and offense is a fuzzy one, making this sort of rule difficult to apply from the bench or the capitol. I do think that offense alone is an irrational (not in the sense of “no rational basis,” per the legal standard, but in the sense of without reason, and in fact contrary to it) standard for laws, particularly when they are targeted at a minority group, but there are cases in which it is difficult to tell whether it is harm or merely offense.

    I still don’t really think Tom’s objection has any basis in the actual ruling. The use of certain quotes was only a part of the reasoning behind White’s decision, and was accompanied by among other things, a congressional report and an analysis of the social scientific case brought by those defending the law. Nothing in the decision, it seems to me, invalidates morality as a potential “rational basis,” legally speaking. Instead, it suggests that, as James puts it here, majority offense is not a rational basis for discrimination against a minority group.

    By the way, it’s posts like these that make me wish you were still a front pager here.Report

    • Avatar James Hanley in reply to Chris
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      says:

      the boundary between harm and offense is a fuzzy one, making this sort of rule difficult to apply from the bench or the capitol

      True, and I would not (intentionally) suggest otherwise.  So there’s still plenty of room for a Burkean caution.  If a law can be demonstrated to be based on offense, with no basis in harm, then it is invalid. But if there’s a reasonable case for harm, or we are legitimately unsure, then tentative acceptance (in the classic scientific sense) of the law’s validity is justified.Report

  9. Avatar Burt Likko
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    says:

    Cheers, James; this was an ambitious post and it got its job done cogently. It seems to me that in this taxonomy…

    Harm is the root principle for moral opposition to rape, murder, theft and such similar actions that cause clear identifiable harm to discrete identifiable individuals. Offense is the root principle for moral opposition to things for which the majority has an aesthetic dislike, but that can’t be demonstrated to have a clear identifiable harm to discrete identifiable individuals.

    …you narrow “traditional morality” to the criminalization of victimless acts. Given that you take the issue to the extreme — criminalization of victimless acts does not advance any social good, would you advocate decrminalization of the following acts, all currently crimes in at least some of the United States:

    • Possess anime depicting minors engaged in sex acts.
    • Cultivate marijuana.
    • Gamble on professional sports, using a bookie on the internet.
    • Sell rare parrots to willing buyers.

    I suppose in the last example, you could say that the parrot is the victim. But that gets us to two theories I don’t think you’ve addressed: aggregation of harm, and communitarian-based harms. From an aggregation standpoint, if everyone bought and sold rare parrots, the demand would quickly drive the species to extinction. From a communitarian standpoint, Congress has determined that the preservation of endangered species like parrots is an inherent good for the United States as a whole, even if said parrots are not indigenous to the United States. Should we be ready to reject such an argument out of hand simply because it is so obviously based on the aesthetic appeal of parrots to the majority?

    (Yeah, I played the “won’t somebody think of the psittacines” card. I’m willing to go there.)Report

    • Avatar James Hanley in reply to Burt Likko
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      says:

      Burt,

      I reiterate my comment to kenb up top that the answers depend on evidence, and I don’t set myself up as an expert on any of these matters.  So my responses here are held tentatively and subject to revision based on further evidence.

      kiddie-porn anime: I would allow it, as no minors are harmed in the act, and it might even diminish the demand for real child porn.

      cultivate marijuana: I’m pretty staunchly pro-legalization, even though I don’t care for the stuff myself. My considered opinion is that it’s less harmful, socially, than alcohol.

      sports gambling: I’m generally pro-legalization of wagering, but this one might be tricky because it so readily creates potential for fraud, through bribing players to throw games.  It’s debatable, to be sure.

      sell rare parrots: I have no problem with banning the capture and sale of wild parrots, but I advocate captive breeding programs for the pet trade.  Domestically raised parrots make better pets anyway (full disclosure–I’m a psittacine owner), and domestically raised animals face no threat of extinction.Report

      • Avatar Burt Likko in reply to James Hanley
        Ignored
        says:

        So is there a principle, or set of principles, behind your favored manner of disposing of these public policy issues? How are we to distinguish such policy dispositions from offense-based aesthetic judgments?

        Bear in mind, I don’t have a huge philosophical problem with an ad hoc approach to a variety of policy problems. I’m trying to determine if there is some “zone” in your regime where an unprincipled, ad hoc approach is acceptable given that in the OP you sought to distinguish policies based on rational interests as opposed to aesthetic preferences.

        And if we’re going to say, “I prefer policy X as opposed to policy Y on aesthetic grounds,” then we ought to be honest about it and be more flexible and less offended when someone comes along and advocates policy Y.Report

        • Avatar James Hanley in reply to Burt Likko
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          says:

          Burt,

          Is there evidence that the prohibited activity is harmful, and no evidence that it’s not? If so, it’s legitimate to regulate it (assuming it passes other constitutional tests).

          Is there evidence that the prohibited activity is not harmful, and no evidence that it is? If so, it’s illegitimate to regulate it unless and until evidence of harm is demonstrated, at which time it can be re-evaluated.

          Is there no evidence either way about the activity? The libertarian in me says don’t regulate it in the absence of evidence of harm, but the Burkean in me says we can continue to regulate it until we actually have some evidence that there is no harm. So I suppose this is the zone where ad hoc approaches are legitimate, because I can’t suggest a principled way to decide between the libertarian and the Burkean approaches.Report

          • Avatar Stillwater in reply to James Hanley
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            says:

            Excellent answer James. I was tempted to jump in with something similar…

            And excellent OP. One thing I like about the argument is that most thinking traditional moralists will be inclined to agree that the presence of identifiable harm is (or ought to be) a necessary condition for the justification of any interventionist state policy. So on their own terms, mere value preferences won’t suffice for establishing legitimate law.

            Which leads, I think, to a pretty undesirable conclusion for TVD’s view that voting for policy merely because of a value preference is rational. This is wrong, it seems to me.Report

  10. Avatar Tim Kowal
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    says:

    James,

    Isn’t your proposed basis for legal legitimacy itself based on an offense principle?  What is the principle other than we ought to take offense to laws based on offense?  To take a premise at the heart of your theory:

    “Harm protects the real interests of individuals….”

    On what basis do we decide what are “real interests” if not out of some moral framework that tells us what man is for?   Arguments against using morality in the law tend to draw morality narrowly, and get mileage so far as like-minded people join the discussion who all implicitly agree to avoid the label of “morality” when they discuss their presuppositions about the who, what, and why of man.  But once we’re shaken back into the realization that, yes, it’s still morality and sensibilities and values that we’re talking about, then we’re back to putting the puzzle together, only now we’ve foresworn the use of edge and corner pieces.  How do you make any law without taking a position on what man is for?  Other than political scientists, I don’t think anyone takes the position that man is put on this earth to promulgate statutes that only prevent harm and are never based on offense.  And once we’re looking at the kinds of positions that real people take—that, to the contrary, there is a profound consistency in prohibiting theft, rape, and murder right along with suicide, prostitution, and animal cruelty—it’s not going to work to draw a straight line down the middle and say “this half is valid and rational, this half is invalid and arbitrary.”Report

    • Avatar Murali in reply to Tim Kowal
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      says:

      How do you make any law without taking a position on what man is for?

      I think this is the key, but I think it can be done even if we have to consider morality widely. I do think that this is the primary project of liberalism and that a reasonable attempt would look like this.

       Report

    • Avatar Chris in reply to Tim Kowal
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      says:

      To be fair to James, I think he was using Tom’s definition of morality (and “traditional morality” specifically), albeit an implied one. That said, I’m not sure one has to determine “what man is for” to determine what our “real interests” are. This is of course the “traditional” approach, but it begs a lot of questions that, and there are now plenty of other approaches. I agree that we have to start working out what “real interests” might mean, but they don’t have to be based on any teleological or even more broadly essentialist view of human nature. In fact, if I understand James’ position correctly, to take that approach would be to bias one’s reasoning in favor of precisely the sort of reasons he’s arguing against using.Report

    • Avatar James Hanley in reply to Tim Kowal
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      says:

      Tim,

      What is the principle other than we ought to take offense to laws based on offense?

      Any law that is based on my offense at your non-harmful behavior harms you by limiting your ability to maximize your subjective utility, living your life in the way that is most fulfilling to you.

      How do you make any law without taking a position on what man is for?

      I don’t think man is “for” anything.  We’re a fascinating product of evolution, but there’s no grand plan.  We’re each just trying to enjoy the time we have here, trying to maximize our personal subjective utility as best we can, and within the constraints of not harming others, that should be allowed without hindrance.Report

      • Avatar Tim Kowal in reply to James Hanley
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        says:

        But then we are back to what constitutes the “real interests” of an individual—that “your ability to maximize your subjective utility” is a “real interest” that should be reflected in our lawmaking process, i.e., by regarding as illegitimate laws based on offense.  It still seems that one way or another, we have to take refuge to a moral premise here, such as that the purpose of life is “to enjoy the time we have here” and “maximize our personal subjective utility as best we can.”Report

        • Avatar Chris in reply to Tim Kowal
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          says:

          You’re treating a premise as a conclusion. We need to figure out what a “real interest” is. You’re concluding that this means we have to know the purpose of life, without arguing it. It’s true that inrests, in general, are related to a purpose, but the purpose in this case need not be “the purpose of life.”Report

        • Avatar mark boggs in reply to Tim Kowal
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          says:

           “your ability to maximize your subjective utility” is a “real interest”

          Maybe this makes me an outlier or wacky or something, but the above sentiment, to me, can be loosely defined as “freedom” or “liberty”.  And when there is no discernible harm from someone maximizing their subjective utility by trying to make a contractual arrangement with the person they love just like everyone else gets to, but a bunch of people want to legislate against it, especially when it picks out a subset of people, that’s where I cry foul. 

          I guess I just struggle with the fact that people want to hold up these ideas of freedom and liberty as the utlimate goals but then backtrack when it comes to things that offend their sensibilities.Report

          • Avatar Tim Kowal in reply to mark boggs
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            says:

            Mark,

            I get you.  That’s why I like the example of animal cruelty.  Almost no one other than hard core libertarians think it’s a misuse of government to pass and enforce laws prohibiting it.  But if you do take the hard core libertarian view that “liberty” means doing whatever you want so long as it doesn’t harm another person, it’s unavoidable that such laws are wrong.  If you’re with me that far, then I think you have to grant that there is some flaw in the hard core libertarian definition of “liberty,” and that we implicitly harbor some other views about who man is and what sorts of acts are appropriate for him to do–even when those acts do not “harm” another person.Report

        • Avatar James Hanley in reply to Tim Kowal
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          says:

          Tim,

          I never said there was no room for morality, just no room for offense-based morality.  Harm-based morality is fine and dandy.  So if I’ve given the impression that all moral-based thinking is out the window I’ve given the wrong impression.  I’m a utlitarian; I’ve been told my some people better versed in philosophy than I that utilitarianism is a moral position. OK, that’s my moral basis then.

          As to what constitutes the real interests of an individual, only that individual can know.  Some individuals never really do know, man not being perfectly rational, but sure as shootin’ nobody outside the individual can know their real subjective valuations any better than they can.Report

          • Avatar Tim Kowal in reply to James Hanley
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            says:

            James,

            Forgot to say thanks for the post–it’s been thought-provoking.

            The discussion may have slowed, and I don’t have any other finished thoughts in response. One unfinished thought is that, practically speaking, it doesn’t seem to hold that we could ever be truly agnostic about what man is and what his “real interests” are.  This seems to be the pure libertarian position, and there is much to commend it.  But as I said above, governments that have to govern human beings have to contend with the fact that most human beings see no problem with prohibiting things like suicide, prostitution, and animal cruelty.  I admit that the harm/offense distinction is a good one, and should at the very least be used as a rule of thumb.  But one has to be prepared to make these sorts of distinctions.

             Report

    • Avatar Patrick Cahalan in reply to Tim Kowal
      Ignored
      says:

      @ Tim

      Isn’t your proposed basis for legal legitimacy itself based on an offense principle? What is the principle other than we ought to take offense to laws based on offense? To take a premise at the heart of your theory:

      You can’t prove the laws of a system by using the laws of the system. Eventually, you get down to an axiomatic declaration.

      This doesn’t imply that James is correct or incorrect to frame things this way, just saying that when you get right down to it, you have this problem with any reasonably cogent framework of anything.Report

  11. Avatar Will H.
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    says:

    First, I would like to say that this is an excellent essay, very well-written. I appreciate the analysis. I like your approach to the topic, and you present quite a persuasive case.

    I would like to critique the following points; not necessarily so much as to arrive at an agreement on the current topic, but more that you would be able to anticipate such arguments in future writings. Of course, I wish by no means to preclude any current agreement.

    Traditional morality largely consists of the sum of a past majority’s collective values vis a vis a minority.

    I disagree. Neither the concept of “traditional” nor that of “morality” require any manner of minority in order to be functional. The matter might well be more properly stated as, “without regard to…” or “in spite of…” any existing minority.

    [B]ut society is simply the sum total of individuals and their actions, so if harm to individuals cannot be demonstrated, neither can harm to society.

    Again, I disagree; for much the same reason that a corporation confers personhood. That is, the institution itself is not dependent on any of the specific actors.
    A saying from my youth reminds me that the church is not the building, but the people within it. If that is true, and yet not one single person within the place comprises “a church” standing alone, then the church must certainly be some manner of organic collective which exists apart from each individual member.
    Does your family exist when you go to work? How can you be sure that they don’t descend into individuals the moment your back is turned? If the family is merely a grouping of individuals, then might a single individual constitute a family? What is the bare minimum?
    I believe that other manner of institutions might be approached in the same fashion.
    Such groupings are less than completely arbitrary.

    [O]ffense only protects their sensibilities, most often at the expense of the real interests of other individuals.

    I am not quite certain this is necessarily true in all cases. One might well ask what other manner of interest might be more real than that of being deeply offended; that is, is offense real?
    This reminds me of another conversation elsewhere as to whether online defamation should be criminalized.
    Different states handle defamation differently. In Missouri, monetary harm must be proven as a separate element of the offense; otherwise, no damages may be awarded. Wisconsin has a “where there’s smoke, there’s fire” ruling, which states that defamation cannot occur without some manner of harm resulting, and therefore need not be proven as a separate element.

    Indeed, offense is nothing more noble than fear and intolerance of those that differ from us.

    This statement appears to assume bad faith on the part of a large number of people over a considerable course of time. I believe caution is prudent when walking over the graves of our ancestors.
    If we could instead assume that those prior to us acted in good faith, what might we find?
    We could say that habit is often established for good reason (conditioning), but times the habit persists beyond the reason behind it.
    There’s more to that, but I’ll let it go.

    Offense-based moral judgment has always been directed at a minority who cannot in fact be shown to be causing harm to anyone, except, perhaps, themselves.

    I doubt this is the case. There is nothing to suggest that offense-based strictures are relegated only to the minority, while there is a wide body of data which would demonstrate, clearly and conclusively, that the majority are bound by observance of such strictures.

    The great achievement of the enlightenment was the challenge to moral-based thinking.

    Surely you don’t believe this, do you Hanley? What challenge to moral-based thinking did Newton’s experiments with prisms present?
    I could come up with a few more examples, but for now I am needlessly fixated on Pink Floyd album covers. I should have chosen a better example at first.

    [H]as consistently demonstrated offense-based moral judgments’ lack of value. Hence we have, one by one, eliminated barriers…

    This is a matter of skewed results from cherry-picking data. We could just as easily prove that offending Osiris will inevitably lead to famine. The data is there.

    When has offense-based morality ever demonstrated real value?

    What is this value you call ‘real?’ And why is it that you are trying to make the point that, should others value differently, the ‘reality’ of that value should be questioned?

    [I]t is hard to escape the conclusion that there is little more going on than expressions of the majority’s hostility toward harmless minorities.

    I don’t believe this is nearly so clear as:
    It is hard to escape the conclusion that there is little more going on than expressions of the Lone Ranger’s hostility toward cattle rustlers— and I think that seems to be more of what you’re driving at. And I don’t think that is necessarily the case. In fact, making that case relies on a certain set of basic assumptions which are themselves of somewhat questionable.

    There was more I was going to add, but I’m tired of typing for now. I want to read.

    But seriously, a very good essay. I truly enjoyed it.Report

  12. Avatar James Hanley
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    says:

    Willh,

    The majority does not bind itself so much as it binds the minority through moral judgments.  In the case of offense-based morality, what is accepted as legitimate by the majority is what the majority finds it amenable to its members to do, and what is not accepted by the majority is what the majority does not find it amenable to its members to do.

    All collectives are the sum of their individual parts, no more.  They evolve as those individual parts change, so that even as the name remains the same, the actual identity and character changes.  But there is no superorganism, there is no collective will, and so on.

    Offense is real, but trivial.

    Bad faith–yes.  There is a tremendous amount of bad faith among humans; we all at times would like to stop others from doing something that is of value to them just because we personally dislike it.

    Re: Enlightenment and morality.  The enlightenment taught us to look for evidence, not rely on claims of authority.  That’s why harm-based moral judgment survives; it can be demonstrated with evidence.  Offense-based moral judgment strives to make claims of harm, but ultimately can provide no evidence.

    Re: Cherry picking data.  A better response would have been to demonstrate a case where offense-based moral reasoning was actually validated in a meaningful way. If I cherry-picked my data, there is other data out there to present to me.

    Re: “real value”: Preventing identifiable harm to individuals. Absent that, I can think of no justification, and no meaningful basis except animus toward those who offend us.

     Report

  13. Avatar Ryan Bonneville
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    says:

    Great post, James. My only quibble, as I suspect you could guess, is that I’m not willing to write off “society” as a thing quite as fast as you are. As as a matter of fact, I bet that one thing accounts for pretty much the entirety of the differences in our political philosophies.Report

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