Philosophical Disquisitions

Attempt Liability and Moral Luck (Part One)

2012-01-28T07:00:00.002Z

(Series Index)

This post is the first in a short series on the combined issues of attempt liability and moral luck. Attempt liability is an idea arising out of criminal law. It holds that a person can be held criminally liable for attempting an offence, such as murder or rape, as well as for completing an offence. And moral luck is….well, moral luck is one of the more interesting conceptual developments in 20th century ethical philosophy. I’ll talk about it in more detail later.

The purpose of this series is to address a simple question: is it right hold someone criminally liable for attempting, as opposed to completing an offence? This entry introduces the basic problems associated with attempt liability, their connection to the problem of moral luck, and some basic arguments in favour of attempt liability. The second entry will consider the arguments against attempt liability.

I’m going to be working off a variety of sources for this post. I’ll provide relevant links as I go along.

1. The Problem(s) of Attempt Liability
So should an attempted murderer be punished in an equivalent manner to a successful murderer? Before you answer that, let’s pump some intuitions with the following case study:

The Poisoning in the Teacher’s Room (A): Mike and Marge both teach at the local high school. They don’t like each other very much, and clash repeatedly during their daily exchanges in the teacher’s room. Finding it’s all too much to take, Mike decides to poison Marge. In the teacher’s room there are two large pots containing loose-leaf tea leaves or ground coffee. Marge drinks coffee every day. So Mike decides to place a quantity of poison in the coffee pot, just prior to her taking some to make her daily cup of coffee (he’ll replace it after, before anyone else takes some poison). He does this and succeeds in poisoning and killing Marge.

The Poisoning in the Teacher’s Room (B): The exact same as above only at the last minute, for some unknown reason, Marge switches from drinking coffee and decides to drink tea instead.

How do you feel about these two cases? Do you think Mike is just as culpable in Case A as he is in Case B? If you do then you are accepting (subject to defeaters) that attempt liability is a legitimate idea. But in doing so you open up the door to some problems. Chief among them being the problem of distinguishing an attempt from a non-attempt.

One of the core values in a liberal society is that people are free to think and act as they wish as long as they do not harm anyone else in the process; one of the hallmarks of the totalitarian society is its attempt to regulate, control and punish thought and behaviour, irrespective of whether it harms anyone else. The problem with allowing for attempt liability is that you may begin the slide from liberalism to totalitarianism. While we may feel comfortable treating Mike from Case A the same as Mike from Case B, in doing so we might set a dangerous precedent for future cases, a precedent that blurs the boundary between an attempt and a non-attempt.

(See the discussion of precedential slippery slope arguments in this post for more on the arguments that might be made here).

Consider the following two variations on the poisoning case:

The Poisoning in the Teacher’s Room C): Mike decides to poison Marge. He reads up about poisoning on the internet, buys some poison and plans out exactly what he is going to do. But at the last minute he gets cold feet and doesn’t put the poison in the coffee pot. Marge lives on oblivious, but Mike later tells a colleague of his plans and they inform the police (this last bit is probably irrelevant from a moral perspective, but important from an evidential one).

The Poisoning in the Teacher’s Room: Mike would love to poison Marge, but he just doesn’t have the courage. He fantasizes about it every day, planning the act meticulously in his mind, but never bringing it to fruition. He tells his therapist, but she sees no threat in his fantasies.

How do we feel about these two cases? I suspect we’d feel that Mike from Case D should be exempt from liability: his idle fantasies are exactly the kind of thing we want to protect from government intervention in a liberal society. But how about Mike from Case C? What he did was clearly less culpable than what he did in case B, but we might still feel like some intervention, or minimal form of liability is merited. Indeed, the criminal law can allow for some liability through the offence of conspiracy. However, by allowing for this we’ve definitely begun to slide from pure liberalism. That might be a perfectly acceptable thing to do — a capacity for nuance and an appreciation for the moral complexity of the real world are qualities we might like the criminal justice system to exemplify — but we have to consider where the boundaries should be drawn, if at all.

Distilling from the preceding discussion, there are perhaps three core boundary-line problems associated with attempt liability:

The Slippery Slope Problem: Should we even begin to punish attempts in addition to completed crimes?

The Equivalence Problem: Should we punish attempts in the exact same manner as completed crimes?

The Gradient Problem: Should we grade attempts in terms of their seriousness, and punish them in accordance with their location on the gradient?

Our primary focus will be on the first two problems, not so much on the third. I want to explore the arguments that propose different answers to those two problems. But before I do that I want to talk a little bit more about the issue of moral luck.

2. The Problem of Moral Luck
The problem of attempt liability links to a more general problem in moral philosophy, namely: the problem of moral luck. This is something which has garnered much attention in the relatively recent past. This largely began in the late 70s/early 80s when Thomas Nagel and Bernard Williams wrote a pair of classic articles on the topic.

The problem of moral luck can be simply stated: what role should luck play in the moral assessment of someone’s actions, accomplishments, failures, achievements and so on? Luck can be roughly defined as any action, event or state of affairs that is outside the control of the person being assessed. In his analysis of the issue, Nagel identified four main varieties of moral luck. They are (taken from the SEP article):

Resultant Luck: This is luck relating to the results of our actions. Poisoning cases A and B give us some idea of what is involved here. In both cases, Mike acted in the exact same way, but the results of his actions were different. In one instance, they led to the death of Marge, and in the other they did not.

Circumstantial Luck: This is luck relating to the circumstances in which one finds oneself. The classic example here being those who found themselves living in Nazi Germany in the 1930s. They likely did things that many of us would do (follow authority, act in their own self-interest) only they did so in appalling circumstances, circumstances which were outside of their control but made them complicit in an atrocity.

Constitutive Luck: This is luck relating to the kind of person that you are. Although we might like to think that we control our character traits and personality tics, our genes and our environment must play a considerable role in determining their content. These factors are beyond our control and could impact upon our moral choices.

Causal Luck: This is luck relating to the antecedent causes of who we are and how we act. Nagel views this as being equivalent to the issue of causation and determinism in the free will debate.

Now I’ll have to be honest and say I don’t see the need to distinguish between constitutive and causal luck. They seem like very similar concepts to me. Nevertheless, I think there is some utility to the resultant/circumstantial distinction. Indeed, within the criminal law — which is where the issue of attempt liability arises — this distinction is significant. This is because crimes are typically distinguished from one another on these kinds of grounds. For example, murder is a result-oriented offence: the actus reus of murder is the death of one person as caused by actions of another. In contrast, rape is a conduct and circumstances-oriented offence: the actus reus of rape is (usually) penetration of a bodily orifice of one person by the penis of another (conduct), without the consent of the person being penetrated (circumstance). So the conceptual and normative issues associated with resultant and circumstantial luck could be important when assessing attempt liability.

I previously said that the problem of moral luck has to do with whether luck should play a role in our moral assessments. That characterisation of the problem is sort of correct, but not quite all the way there. One of the realisations to emerge from the Nagel/Williams exchange in the 70s/80s was that luck does seem to play a substantial role in our everyday moral assessments. That is to say, we already seem to allow for moral blame to attach even in the presence of luck. So, to them and to most contemporary philosophers, the problem of moral luck is not “whether” luck has a role to play but, rather, how to account for the role that it does play. Of course, that’s not to say that the more general normative issue of “whether” is ignored — far from it — but it does suggest an alternative perspective is being taken on the problem.

Anyway, we now need to move away from this problem-setting stage and on to the problem-solving stage. We do this first by looking at three arguments in favour of punishing attempts and treating them as (roughly) equivalent to completed crimes. These arguments are: (i) the control argument; (ii) the harm prevention argument; and (iii) the deterrence argument. Let’s look at each in turn.

3. The Control Argument
The control argument appeals to the most common principle of responsibility, namely: an agent should only be liable for those results (and circumstances) that are within their control. From there it builds a case for treating attempts the same as completed crimes. Using the poisoning cases from earlier as a reference, this is the basic control argument:

(1) An agent is (only) liable for the results and circumstances that are within their control.

(2) In terms of results and circumstances, Mike from Case A exercised control over the exact same things (no more, no less) as Mike in Case B.

(3) Therefore, if Mike from Case A is liable for something, Mike from Case B is liable for the exact same thing.

(4) Mike from Case A is liable for the murder of Marge.

(5) Therefore, Mike from Case B is liable for the murder of Marge.

Although the logic here seems valid enough, the conclusion is strange. How can Mike be liable for murder in case B when Marge isn’t dead? After all, murder requires an actual death, doesn’t it? Since the conclusion seems strange we might be inclined to think that at least one of the premises is dodgy, but let’s not be too hasty. I suspect the reason for thinking that the conclusion is strange stems from confusing liability and responsibility. This is something I’ve spoken about before. Roughly, liability is concerned with the price one has to pay for one’s actions; whereas responsibility is concerned with the outcomes that one actually brought about. Since this argument is framed in terms of liability, not responsibility, I think it makes sense: Mike must pay the same price in both cases because he controlled the same things, despite the fact that his actions led to a different result.

Even still, there might be something wrong with the premises. For instance, we might argue that control is not the only thing relevant to liability, that utilitarian principles can also be used to determine who should pay the price for something. In that case, premise (1) would be faulty. But that wouldn’t necessarily spell the end for attempt liability because utilitarian principles might just as easily be used to support the case for attempt liability. Indeed, this is exactly what the next two arguments hold.

4. The Harm Prevention Argument
Like the control argument, the harm prevention argument works from a very simple idea. The idea is that the purpose of the criminal law is to identify those wrongs which we would prefer not to occur. And since those wrongs are usually (and probably preferably) linked to harms, it would seem that the criminal law is designed to prevent harm. Think about it like this. The reason we classify murder as a crime is because we don’t want people to kill one another. And the reason we do this is because deaths are harmful and we wish to prevent harm.

But then, if our goal is harm prevention, why should we wait until the harm has been caused before intervening? In other words, why doesn’t the following argument hold?

(1) The criminal justice system ought to prevent harm.

(2) Intervening before a crime has been completed (but after it has been attempted) prevents more harm than intervening after the crime has been completed.

(3) Therefore, the criminal justice system ought to be willing to intervene before a crime has been completed, not just after.

This argument is fine, in so far as it goes. The problem is that it doesn’t go far enough. While it might be true that, if we’re interested in harm prevention, we ought to try to prevent harm and not just step in after it occurs, this doesn’t say anything about whether we should hold someone liable for attempting a crime. In other words, the argument fails to answer the question: why can’t we just prevent the crime and leave it at that (without punishing the attempt)?

There are a number of possible replies (impracticality, epistemic hurdles etc). The next argument is one of them.

5. The Deterrence Argument
Let’s say we accept the basic tenets of the harm prevention argument. What we then need is some principle to plug the gap between intervention and liability. A deterrence argument might be exactly what we need. A deterrence argument will work off the idea that there are certain incentives that make people more likely to respond or behave in a particular way in the future. In many ways, the goal of any social engineer is to craft a network of incentives that encourages people to behave in ways you like, and deters them from behaving in ways you do not like.

When it comes to attempt liability, the proponent of deterrence is going to argue that intervention+punishment is going to be a more effective deterrent than intervention on its own. And if it is a more effective deterrent, then it is going to prevent more harm going into the future than an intervention.

This leads us to the following argument:

(1) The criminal justice system ought to prevent as much harm as possible.

(2) Intervening and punishing attempts (i.e. creating a system of attempt liability) will prevent harm than just intervening before crimes are completed (because it provides a greater deterrent).

(3) Therefore, the criminal justice system ought to create a system of attempt liability.

This argument, which is subtly different from the harm prevention argument, provides some justification for attempt liability. The second premise would be supported by the deterrence-based reasoning that I outlined in the two preceding paragraphs.

Is the argument any good? Well, note the change in premise (1) from the version in the harm prevention argument. One might argue that this change is both crucial and problematic. It is crucial because without it the deterrence based objection to intervention without liability won’t work. It is problematic because it may claim too much for the criminal justice system. Should we really aim to prevent as much harm as possible? Probably not, especially if doing so will also prevent us from doing other things that we might value. Whether deterrence actually do that is a question worth pursuing. All I’ll say here is that by using deterrence as the justification for imposing liability, we may slide down the slope towards totalitarianism. After all, totalitarian societies might be very safe places to live, but they achieve this at the expense of other values.

Okay, let’s leave it there for now. In part two, we’ll look at the arguments on the other side of the debate.

Crime, Punishment and Responsibility (Series Index)

2012-01-27T11:40:00.001Z

I've been blogging a lot recently on the philosophy of responsibility, punishment and, to a lesser extent, crime. Since I'm likely to continue addressing those topics in the coming weeks and months, I thought it was time to provide an index to all the posts I've written so far. I've divided them into three specific groups, but the divisions are far from pure. Anyway, you can expect this to grow somewhat in the near future.

1. Free Will and Moral Responsibility

2. Theories of Punishment

3. Criminal Responsibility and Liability

Book Recommendations (Index)

2012-01-26T17:32:00.001Z

I've decided to do a series of posts giving short book recommendations. Since I usually read far more interesting stuff than I could ever possibly write about in a substantive way, I figure a series of short posts just recommending things I've read might be worthwhile. Also, each post will give readers an opportunity to recommend things that they've read too.

I won't give any ratings or substantive criticisms of the books I recommend here, I'll just provide a couple of reasons for thinking the book is worthwhile. Also, while my main focus will be on philosophy books, I won't limit myself to those.

An Index to Recommended Books

1. Just the Arguments: 100 of the most important arguments in Western Philosophy

2.

Book Recommendations ♯1: Just the Arguments

2012-01-26T07:00:00.002Z

(Series Index)

Regular readers of this blog will be aware of my penchant for argument analysis. It is perhaps a sad reflection on my hobbies, but there’s nothing I like more than taking a passage of argumentative writing, breaking it down into its key components (reasons, conclusions etc.), and then reconstructing it in a formal or diagrammatic way.

There’s something beautiful about a well-constructed formal argument. It compresses masses of information, it provides a structure for persuasive and critical thinking, and reveals strengths or weaknesses in someone’s reasoning. When you formalise an argument, you can usually instantly highlight points of disagreement and agreement. What’s more, since philosophy should be a inquisitive, not a persuasive, enterprise, the formalisation of arguments allows you to identify useful areas of future research and inquiry.

Given my love for arguments, it will comes as little surprise to learn that I’m a big fan of Michael Bruce and Steven Barbone’s recent edited collection Just the Arguments: 100 of the Most Important Arguments in Western Philosophy. The book is definitely one that can be judged by its cover, or, more properly, its title. It features one hundred individual chapters by different authors, albeit with some repeat offenders along the way. Interestingly, this adds up to more than 100 arguments. For example, the opening chapter on Aquinas’s Five Ways contains, unsurprisingly, five separate arguments.

By and large, the content is good. It ranges over the full suite of philosophical topics: religion, metaphysics, epistemology, ethics, mind, science and language. The chapters are usually short enough to read through in five to ten minutes, although some of the longer ones will take up more time. The arguments are typically presented at the end of each chapter, and references are provided to primary and secondary sources at the start of the chapter. The arguments themselves vary from being extraordinarily complex to admirably brief. On the complex side of things, check out the chapter on Kant’s categorical imperative which features 27 premises and 14 conclusions; while on the brief side of things, check out the chapter on G.E. Moore’s anti-skeptical arguments which have 2 premises and a conclusion.

I wouldn’t hesitate to recommend the book to anyone with an interest in philosophy. The editors pitch the book at students, suggesting it might provide an ideal revision tool since most philosophy courses can be boiled down to a few key arguments. But I think professional philosophers and interested lay people could easily benefit from it too. I can certainly imagine myself dipping into some afternoon, and perhaps squeezing a blog post out of one the chapters.

There are some criticisms to be made though. First, because the chapters are written by different contributors, the quality is somewhat patchy. And while it’s nice to have short chapters for ease of reference, I find the longer chapters with background and context are more enjoyable to read, particularly for topics outside my main areas of research. Also, some contributors are a little too sparing with their bibliographies when compared to others. I think it would be nice to have a reasonably detailed bibliography in each chapter for those who wish to follow things up in more detail.

Facebook Page

2012-01-25T20:52:00.003Z

,

I've set-up a facebook page for the blog. I'll put links to all new blog posts on there, as I do with my twitter page. Not sure how useful this will be, but if facebook is your main portal to the web, and if you're a fan of this page, you might like to check it out.

I've put a link to it in the sidebar, and below too:

Philosophical Disquisitions Facebook Page

Enhancement and Education: Lessons from the Kobayashi Maru (Part Two)

2012-01-25T11:59:00.000Z

(Part One, Series Index)

This post in the second in my two-parter on the lessons we can draw from the Kobayashi Maru (KM) for the enhancement-in-education debate. The KM test is, of course, a part of the Star Trek canon. It is supposedly an unpassable test but, according to Trek lore, Kirk managed to pass the test. The problem is that he did so by reprogramming it to make it passable. The question I’m considering now is whether this was legitimate.

In a change from my normal practice, I’m going to continue directly on from part one (this is reflected in the numbering of the sub-sections). So, in other words, you really need to read part one before attempting this.

3. Spock’s Argument Against Kirk
Should Kirk’s “pass” on the KM really be a “fail”? The obvious answer would appear to be “yes”, but let’s consider the reasoning behind the obvious answer in a little more depth.

According to the most recent film, Star Trek, Spock was the creator of the test, and he clearly thought that Kirk had defeated the true purpose of the test by cheating. As a result, his success was illusory and should be deemed illegitimate. Indeed, Spock directly challenged Kirk, through disciplinary proceedings, on this issue. This is revealed in the courtroom-like scene in the film where Kirk asks to confront his accuser, who turns out to be Spock. Unfortunately, I couldn’t find the relevant clip on youtube, so you’ll have to look it up on your own time (assuming you have access to a copy of the film).

More important than the clip though is Spock’s reasoning. As creator of the test, Spock clearly had an intended learning outcome (ILO) that he wanted to achieve with the test. He states this pretty clearly at one point. He says the purpose of the test was to get the student to experience fear in the face of certain death and to see how they coped with it. This means that the KM-test was not intended to be a test of problem-solving skills, but, rather, a test of character. Consequently, its the no-win scenario was a core part of Spock’s ILO.

This leads to the following argument:

(4) If you succeed in a test by avoiding the ILO of that test, your success is illegitimate and illusory.

(5) The ILO of the KM-test is to see whether someone has the psychological resilience to cope with a no-win (certain death) scenario, not to develop their problem-solving skills.

(6) By reprogramming the test, Kirk avoided having to cope with a no-win scenario.

(7) Therefore, Kirk’s success on the KM-test was illegitimate and illusory.

This argument appears to be valid. So if its premises are true, Spock’s accusation against Kirk is vindicated (then again, we’d expect this since Spock is, supposedly, “logical”).

So are the premises true? I think premises (5) and (6) are relatively uncontroversial: (5) is what the (admittedly fictional) Spock claims for his test himself and (6) seems like a fair description of what Kirk did. Premise (4) is the tricky one. Its justification could be based on what I said in part one about constitutive regulations and ILOs, but I don’t want to spell out that argument just yet (for reasons that should become clear). Instead, I’ll offer a prima facie justification of it by way of analogy.

The analogy is as follows. Suppose I assess my philosophy 101 course with an essay. The essay asks the student to offer an argument for or against the following proposition: “Abortion is immoral”. The ILOs for the students taking this course would include: (i) acquire knowledge of relevant subject matter in ethical philosophy; (ii) develop the ability to think critically and reasonably about a controversial ethical topic; and (iii) develop the ability to present an argument about this issue in a readable manner. The essay is supposed to provide evidence as to whether those ILOs have been achieved.

Now suppose that instead of researching, thinking and writing about the topic in the required manner, a student simply buys an essay dealing with this topic from an online essay-mill and hands it in as if it is their own work. This essay might be quite good and might, if I can’t tell the difference between it and a genuine essay, garner a pass grade or higher. This means that the student would (officially) appear to have succeeded in the test. But then ask yourself: would that student’s success be legitimate? No, obviously not. It would be both illegitimate and illusory. And why is this? Because the success was gained by avoiding the ILOs. Thus, premise (4) would seem justifiable.

Is this enough for Spock’s argument to go through? Not quite, we have to consider Kirk’s potential rebuttal and counterargument.

4. Kirk’s Rebuttal and Counterargument
To be clear, nowhere in the Star Trek canon does Kirk actually present anything like a formal rebuttal and counterargument to Spock. He does, however, present his reason for reprogramming the test. In Wrath of Khan — during one of the scenes set in the cave on the Genesis moon, if you must know — Kirk says, with admirable brevity, that he cheated because he doesn’t believe in the no-win scenario. I think we can expand upon this single reason to present a more formal response to Spock’s argument.

I’ll focus first on a potential rebuttal of Spock’s argument. A rebuttal is an argument or premise that challenges a premise in the main argument. In this instance, the rebuttal will be aimed at premise (4). You see, despite the prima facie justification offered above, there is some reason to doubt its truth. This reason is linked to some of my previous comments on ILOs and their connection to the constitutive regulation argument (see part one for details).

Basically, my feeling is this: an ILO can only be part of a constitutive regulation argument if the ILO is itself morally legitimate, and the problem with ILOs is that they need not always be morally legitimate. Indeed, if one of the key properties of an ILO is that it is linked to what a teacher intends for their students to get out of a course, then there’s no reason why an ILO can’t be morally arbitrary. For example, I could make learning the names of all my relatives one the ILOs for the students on my philosophy course. I could even assess them on this by asking them to name my relatives at the end of their essay. However, this ILO would be morally arbitrary and the students would be right to challenge me on it (or to “cheat” on this part of the assessment if they so wished).

So premise (4) is rebutted by this:

(8) You are within your moral rights to bypass or avoid an ILO if that ILO is morally illegitimate or morally arbitrary.

And so should be revised accordingly.

All of which leads us to the counterargument to Spock. A counterargument is an argument that stands in direct opposition to the conclusion of another argument. So in this case we want an argument that contradicts (7), from above. How can we construct such an argument? Well, we can start by picking up the trail left by the rebuttal that I just outlined. The rebuttal works because it assumes that some ILOs are legitimate and some are not. Furthermore, it assumes that a student can be within their moral rights to bypass an illegitimate ILO.

This raises an intriguing possibility. What if, in addition to having a ILOs that are legitimate/illegitimate, we could also have hierarchical relationships among legitimate ILOs? In other words, what if some ILOs were more legitimate than others? And what if, recognising that there was a “more” legitimate ILO in place, a student achieved it by avoiding a lesser ILO? Might that make the practice of avoiding a legitimate ILO acceptable?

Like I said, it’s an intriguing possibility. It’s also a possibility that could work in Kirk’s favour. After all, I don’t think we can say that Kirk’s success was legitimate because Spock’s ILO was morally illegitimate — cultivating the psychological resiliency to face death seems like a legitimate ILO for command-track cadets in Starfleet — but we might be able to say that his success was legitimate because he achieved a greater ILO at the expense of a lesser one.

This raises the obvious question: what might the greater ILO be in the case of the KM-test? Here’s a suggestion. Most educators would agree that one of the supreme goals of any type of education is to cultivate the capacity for critical thought among students. Critical thought is understood to include the ability to question taken-for-granted assumptions through the use of reason and logic. If students can demonstrate this ability, most educators would be pleased.

So perhaps this is what Kirk was doing when he “cheated” on the KM-test. Perhaps through reprogramming the test he demonstrated a capacity for critical thought that should be rewarded, not punished. As follows:

(9) If a student succeeds on a test by avoiding one legitimate ILO for the sake of a more important ILO, then their success is not illegitimate or illusory (in fact, it’s the very opposite).

(10) Demonstrating the capacity for critical thought (an ILO for nearly all educational projects) is more important than demonstrating the psychological resiliency to cope with a no-win scenario (Spock’s ILO for the KM-test).

(11) The capacity for critical thought consists primarily in the ability to challenge taken-for-granted-assumptions.

(12) The implicit taken-for-granted assumption of the KM-test is that there is such a thing as a no-win scenario.

(13) By reprogramming the test, Kirk demonstrated an ability to challenge the assumption that there is a such a thing as a no-win scenario.

(14) Therefore, Kirk demonstrated a capacity for critical thought (from 11, 12, and 13).

(15) Therefore, Kirk’s success on the KM-test was not illegitimate or illusory (from 9, 10 and 14).

Again, I think this is valid and it might make us more sympathetic to Kirk’s solution. I’ve illustrated the relationship between this argument and Spock’s argument in the diagram below.

For all the sympathy that Kirk’s counterargument might engender, it has a number of weak links. For starters, premise (10) might be controversial. Someone might argue that the hierarchy is the other way round or, worse, that hierarchical relationships cannot be established between ILOs because they are fundamentally incommensurable. Additionally, someone might dispute premise (13) and say that mere act of reprogramming does not provide good evidence of critical thought.

These objections are certainly worthy of consideration, but I think there is a more interesting one. The argument above (premise 12) suggests that the KM-test comes with a taken-for-granted assumption about no-win scenarios. It further suggests (premise 13) that challenging that assumption would be the way to demonstrate critical thought. Consequently, since Spock’s ILO requires the assumption about the no-win scenario, demonstrating critical thought would have to come at the expense of Spock’s ILO.

But maybe that’s the wrong way to look at it. Maybe the KM-test is itself designed to challenge a taken-for-granted assumption. Most students would enter a simulated test like the KM with the assumption that there is some kind of “solution” to the problem. They might then carry this assumption with them into the real world when they should really be open to questioning it. Thus, it may be that in programming the test so that there is no solution, Spock actually gets them to both (a) challenge their own assumptions about these kinds of scenarios and (b) test their psychological resiliency by getting them to confront death. In other words, achieving Spock’s ILO need not come at the expense of critical thought. Indeed, it might actively require a capacity for critical thought.

In the end then, whether we side with Kirk or Spock might just come down to which assumptions we think are worthy of challenge and whose challenge would hence be more indicative of critical thought. So whether Kirk’s success was legitimate or not is, as I said at the outset, a close run thing.

5. Lessons for the Enhancement Debate

At last we come to the topic that I started out with: the legitimacy of enhancement in the educational context. Can the analysis of the Kobayashi Maru tell us anything interesting about this issue? On one level, the analysis of the Kobayashi Maru is just a bit of fun; but on another I think it has some interesting lessons for the enhancement debate. Here are the two that occur to me:

The Normative Irrelevance of ILOs: The first lesson has to do with the normative salience of ILOs. As should be clear from what I said, ILOs are not necessarily normatively significant. Since they are linked to the intentions of the teacher, it is possible for them to be normatively arbitrary. This has important consequences for anyone who wishes to object to enhancement because they might cause students to bypass or avoid certain ILOs. They first have to make sure that the ILOs being avoided are normatively significant.

The Link Between Enhancement and ILOs: The second lesson has to do with how the use of enhancement might be linked to the avoidance of a normatively significant ILO (or, alternatively, how it might be linked to the achievement of an ILO). Kirk’s reprogramming of the KM-test was (depending on how you look at it) either directly indicative of a failure to achieve an ILO or directly indicative of success in achieving an ILO. It was directly indicative of a failure to confront death (Spock’s ILO), or directly indicative of an ability to think critically (a more general ILO). Thus, it is possible to make a fairly simple normative argument for or against Kirk’s actions. This is interesting because most enhancement technologies are unlikely to be directly linked to ILOs in this manner. The effect they actually have on achieving ILOs is likely to be indirect. Thus, making normative arguments for or against their use is likely to be more difficult.

And on that note, I shall conclude.

Enhancement and Education: Lessons from the Kobayashi Maru (Part One)

2012-01-24T07:00:00.002Z

(Series Index)

Okay, so this is going to be the last two-part entry in my series on the use of enhancement in sports and education, and since it’s the last I’ve decided to have a little fun with the topic. This post is going to be a, rather self-indulgent, philosophical analysis of a key component of the Star Trek canon: the Kobayashi Maru Test. (Don’t worry, I’ll be explaining for all the naifs out there.) I suppose I should apologise in advance to all those non-Star Trek fans out there, but I recommend persevering with these two entries anyway since I think they contains some interesting material. Then again, I would say that.

To set this up properly, I need to summarise the purpose of this series so far. The series was written to help me investigate whether the use of cognitive/performance enhancing technology is legitimate in the educational context. To make this investigation more interesting, and to draw upon an already rich philosophical literature, I’ve been considering the analogies between sports and education. I’ve done this over quite a number of posts. I don’t know if I have any particularly strong conclusions to draw so far. My basic feeling is that the use of some performance enhancers might be illegitimate in (some) sports because they either breach the constitutive regulations of that sport, or because they leads to inter-temporal unfairness. But as to whether that carries over to education, I’m really not too sure. There may be important disanalogies between the two fields that make this impossible.

The next two posts will focus on those potential disanalogies, but won’t directly touch upon the enhancement issue. At least, not until the end. The goal, instead, is to expand upon the notion that breaching the constitutive regulations of some activities is morally illegitimate by exploring the fictional example of James T Kirk’s alleged “success” on the infamous Kobayashi Maru test. Using what has been said about the test in two of the Trek films (Wrath of Khan and the more recent reboot film Star Trek), I’ll suggest that there are good arguments on both sides of the issue. So Kirk’s success might be legitimate or it might not; it’s a close run thing. And the fact that it’s a close run thing has some interesting implications for the enhancement debate.

The remainder of the series is structured as follows. In section one, I revisit the concept of a constitutive regulation and explain why it is normatively significant. In section two, I give a brief outline of the structure of the Kobayashi Maru test and explain the circumstances behind Kirk’s alleged “success” in it. In section three, I outline Spock’s argument (from Star Trek) as to why Kirk’s success was illegitimate. In section four, I outline Kirk’s counterargument as to why his success was legitimate. And finally, in section five, I draw out the lessons of all this for the enhancement debate.

I’ll cover sections one and two today; sections three, four and five the next day.

1. The Constitutive Rule Argument
Some time ago, John Searle set down a very simple taxonomy of rules. According to Searle, the kinds of rules we use to regulate and control our activities can be broken into two broad classes: (i) regulative rules; and (ii) constitutive rules. Regulative rules take a pre-existing activity or set of activities and set down some rules so as to signal to us the (normatively) best way to perform that activity or set of activities. Constitutive rules are different: they set down rules so as to constitute (i.e. create) a new type of activity, a type of activity that wouldn’t exist without the rules.

Compare the rules of driving and the rules of chess. Driving is an activity that does not need rules to exist: we all know what it is to drive a car without having someone tell us that we ought to drive a car in a particular manner or at a particular speed. The rules of driving simply tell us how best to perform that activity. So, for instance, it is possible to drive a car while intoxicated, but this is a normatively inferior way of driving a car, hence there is a rule telling us not to do this. Contrast that with chess. While it is true that moving carved wooden pieces around a board makes a certain amount of sense without the rules of chess; it is also true to say that without following those rules any such activity is not chess. The rules of chess don’t just tell us how we ought to move wooden pieces around a board, they also create a unique kind of activity which we call chess. In other words, the rules of chess constitute a particular activity, they don’t just regulate it.

There is something attractive about the constitutive rule concept when it comes to understanding sport (and perhaps education - we’ll get to that in a minute). For example, the rules of soccer (football to the Brits) don’t simply regulate the activity of kicking a ball around a pitch; they also constitute a particular kind of activity we call soccer. But there’s something slightly unsatisfactory about using the constitutive rule concept when making a normative argument about sport. The problem is this: because of their nature, constitutive rules seem to be descriptive not prescriptive in nature. Thus, any argument made by appealing to them will be factual, not normative. For example, if we play cricket with a baseball bat, we’re not playing a normatively inferior kind of cricket; we’re just not playing cricket at all.

Or so it seems. But David Lauer has made an interesting argument about this in a recent paper. Lauer suggests that constitutive rules can be used as the basis of a normative argument, provided we distinguish between two kinds of constitutive rule. They are:

Constitutive Standards: These are constitutive rules that tell us the conditions that one kind of activity (X) has to satisfy in order to count as another kind of activity (Y). For example, moving carved pieces of wood around a check-patterned board counts as chess, if the movements correspond to the rules of chess. In this form, the constitutive rules are purely descriptive, not normative.

Constitutive Regulations: These are constitutive rules that remind us how an already intelligible activity (X) ought to be done in order to count as a good instance of X (call this Y). For example, hitting someone with your fists is a kind of activity that makes sense without the need for rules, but when you add rules it might constitute a new phenomenon that we call “boxing”, whilst at the same time creating a normatively superior form of hitting someone with your fists. In this form, the constitutive rule is not purely descriptive, it is also partially normative too.

I’d recommend reading Lauer’s paper for more on this conceptual division and the kind of work it can do. For now, I’ll suggest that we could use the constitutive regulation concept as the basis for a normative argument. As follows:

(1) It is wrong to perform an activity whilst breaching the constitutive regulations of that activity.

(2) X breaches the constitutive regulations of an activity.

(3) Therefore, X is wrong.

The interesting question is whether educational activities — specifically assessments — come with constitutive regulations. I think the answer is “maybe”. If we follow contemporary teaching theory, then each course we teach should come with a number of intended learning outcomes (ILOs). These are things you want your students to be able to do at the end of the course (usually they are abilities or capacities you want them to develop). In essence, they are the normative goals of the course. If the course is well-designed, then the assessment should essentially be like a “game” in which students are forced to demonstrate that they have achieved the outcomes. If they do not, they fail.

Assessments of this sort should, I think, bear some resemblance to an activity or set of activities governed by constitutive regulations. The assessment-regulations will take an independently intelligible set of capabilities (e.g. memorisation, analysis, critical thinking) and, through the constraints of rules, create a scenario in which there is a normatively superior way of demonstrating those capacities. These will be the test conditions and parameters. Consequently, if one breaches the constitutive regulations of the test, one should be deemed to have both: (a) subverted the purpose of the test; and (b) if the ILOs are normatively significant (a point to which I shall return), one should also be deemed to have done something normatively illegitimate.

For the remainder of this series, the key issue is to see whether Kirk’s actions in “passing” the Kobayashi Maru test did, in fact, breach the constitutive regulations of that test.

2. What is the Kobayashi Maru Test?
To address this issue, we first need to know what the Kobayashi Maru (KM) test actually is. The following description is based on the one from Memory Alpha (the Star Trek-wiki).

The KM is a test given to all command-track cadets in Starfleet. The test takes place in a simulated version of the USS Enterprise’s bridge. The test candidate assumes the role of captain for the duration of the simulation. The simulated scenario is as follows. The Enterprise is on patrol near the neutral zone between the Federation and the Klingon Empire. It receives a distress call from a civilian freighter named The Kobayashi Maru. The freighter, which is located within the neutral zone, has struck a gravitic mine and needs to be rescued, otherwise the crew and passengers will perish. While rescuing the ship is what every commander would like to do, the problem is that entering the neutral zone risks a confrontation with the Klingons. Sure enough, this is exactly what happens: when the Enterprise enters the neutral zone, three Klingon battle cruisers decloak and attack.

The video below, taken from the Wrath of Khan, shows what the test looks like.

The test is programmed in such a way that, once you enter the neutral zone, there is no way to “win”. In other words, there is no way to successfully rescue the Kobayashi Maru while at the same time avoiding death at the hands of the Klingons. This renders the test more a test of character than a test of problem-solving. Everyone is supposed to fail the test, at least superficially.

Now, while I’m willing to accept that the KM-test is a no-win situation, I must point out at least one potential flaw in the set-up so far. Donning a moral philosophers cap for a moment, I think the KM can be viewed as a kind of moral dilemma. In fact, I think a moral dilemma is the quintessential no-win scenario. A moral dilemma, strictly defined, is any decision-making context in which one’s choices are limited to two (or more) equally bad courses of action. As such, there is no morally correct solution: no way to “win” from a moral perspective and a genuine tragedy associated with any choice you make.

But if we adopt a consequentialist ethic, I think the KM-test is not a true moral dilemma, and hence not a true no-win scenario. Look at it like this: in the initial phase of the test you have two options: (i) enter the neutral zone and attempt a rescue or (ii) do not enter the neutral zone and do not attempt a rescue. If you go for option (i), you will be killed and so too will the crew and passengers of the KM. If you go for option (ii), you will not be killed, but the crew and passengers of the KM will be. Presumably. And while ideally no one should die, it’s surely preferable that the crew of only one ship die than the crew of two ships. The two options are not equally bad. One seems clearly better than the other.

Admittedly, this is a controversial solution. It’s much like the classic kill-one-to-save-five scenario depicted in the trolley problem. But as I said at the outset, this is only a “potential” flaw in the structure of the KM-test. It could easily be repaired. For one thing, the solution just outlined only works if we assume the captain knows what will happen when he/she enters the neutral zone (i.e. if we assume perfect information); if we assume the opposite — that the captain does not know what will happen — then the solution I pointed out above becomes much less obvious. For another thing, the test designers could easily reprogramme it so that the initial choice — that of entering the neutral zone or not — is eliminated. This way one is landed immediately into the no-win dynamic of the rescue.

Of course, one the key bits of Star Trek lore is that Captain Kirk managed to “pass” the KM-test despite its no-win dynamic. How did he manage this? Well, as is reported in Wrath of Khan and depicted on screen in Star Trek, he “cheated”. He reprogrammed the test so that it was possible to defeat the Klingons and rescue the KM.

The question we need to ask is whether his “success” on the test was commendable or not. To do this, we’ll need to delve a little deeper into the ILOs and constitutive regulations of the KM-test, and assess their normative significance. We’ll do this in part two.

Vincent on the Responsibility-Liability Gap

2012-01-20T20:21:00.000Z

When we make judgments about a person’s responsibility, are we making judgments about their liability too? Or is there some conceptual “gap” between responsibility and liability? If there is a gap, what could possibly fill that gap? These three questions form the basis of one of my ongoing research projects. And as part of that research project, I’m currently surveying some of the literature on this putative gap.

To that end, this post is going to look at Nicole Vincent’s discussion of the responsibility/liability gap in her paper “What do you mean I should take responsibility for my own ill health?”. Vincent, whose work I’ve discussed in the past, has done much in recent years to clarify the conceptual landscape of responsibility, so her work is about as good as any a place to start.

In the paper I’m going to look at today, Vincent’s primary targets are the views of the so-called luck egalitarians. The luck egalitarians have a particular view on the distributive justice debate, a view which, according to Vincent anyway, makes certain unjustified assumptions about the relationship between responsibility and liability.

I won’t be going through all of Vincent’s article in this post. Instead, I’ll be focussing on the section in which Vincent endorses the notion of a responsibility/liability gap. Nevertheless, I’ll try to give enough of a flavour of the rest of the paper for Vincent’s arguments to make sense.

The remainder of this post is divided into two parts. Section one offers a brief primer on the whole notion of luck egalitarianism. Section two presents Vincent’s argument for the existence of a responsibility/liability gap.

1. The Allure of Luck Egalitarianism
Distributional problems form the basis of many of our social policies: Who is entitled to welfare or unemployment payments? How much should they get? Who is entitled to publicly-funded healthcare? Who gets priority for organ transplants? Each of these questions forms the basis of distributional problem and each answer forms the basis of a social policy.

Luck egalitarians have a particular view on distributional problems of this sort. Their view is driven partly by the belief that any scheme of distribution ought to minimise the effects of bad luck on a person’s life. “Bad luck” can be defined as any event or circumstance which is disadvantageous to a particular individual, but which is not their fault. In addition to being driven by the desire to minimise the effects of bad luck, luck egalitarians are also, typically, driven by the belief that any disadvantage that is the fault of particular individual should be discounted or ignored when we try to solve our distributional problems.

The idea should become clearer if we consider the following two distributional problems:

The Gambler: Suppose that Ronald has squandered all his money by gambling on the racehorses. As a result Ronald is living in squalor. Suppose also that Richard has also lost all his money and is forced to live in squalor. But this is because he was made redundant after the head of his company was found to have committed massive fraud on his shareholders and workers. Suppose further that, although the state is willing to pay out welfare to people who live in squalor, they only have enough money to payout to one individual. Who should be entitled to it?

The Smoker: Suppose Ronald has spent most of his adult life smoking 40 cigarettes a day. As a result he has contracted lung cancer and needs ongoing healthcare. Suppose that Richard is in a similar predicament only his cancer is attributable to asbestos exposure at the hand of a negligent employer. Once again, the state is willing to pay for the healthcare but only has enough money to pay for one individual. Who should be entitled to it?

I suspect that, for most people, the intuitive response to these questions is clear: Richard has a greater entitlement than Ronald. But why is this? Well, in both instances Richard’s predicament is attributable to bad luck, i.e. circumstances that are not his fault; whereas Ronald’s predicament appears to be attributable to certain lifestyle choices that he made, i.e. circumstances that are his fault. So our answer to the distributive question in both cases seems best explained by the idea that judgments of entitlement track judgments of bad luck/responsibility. This is the essence of luck egalitarianism.

There are a few forms that luck egalitarianism can take, I’ll mention two by way of illustration. The first I call “strict luck egalitarianism” and the second “prioritarianism”.

Strict Luck Egalitarianism: If X is responsible for their own misfortune, then X is not entitled to any distributional benefits that could alleviate that misfortune.

Prioritarianism: If X is responsible for their own misfortune, then X moves to the back of the queue in terms of entitlement to any distributional benefits that could alleviate that misfortune.

These formulations are my own, and it shows. They are quite cumbersome. Nonetheless, I hope it’s clear just how strict the first formulation really is: it suggests that those who are responsible for their own misfortune are never entitled to any benefits. This is probably much too harsh for most people. Are we really going to deny a smoker access to healthcare, even when we can afford to supply it? Prioritarianism, on the other hand, seems more sensible. It is quite popular in the literature (so I believe) and is most readily associated with the work of Richard Arneson.

When discussed in light of case studies such as the gambler and the smoker, luck egalitarianism is alluring. But is this allure enough? Is it prone to any objections? As it happens, there are a number of objections to luck egalitarianism in the literature (no surprises there) but Vincent isn’t too concerned with them in her article (she discusses them but dismisses them). Instead, she wants to develop an alternative objection to luck egalitarianism, one based on the alleged responsibility-liability gap. Let’s discuss this next.

2. The Responsibility-Liability Gap
Vincent’s argument proceeds in three distinct “steps”. Step one argues that the notion of outcome responsibility is conceptually distinct from the notion of liability responsibility. This is significant since luck egalitarianism relies on the latter not the former. Step two argues that there is an important logical gap between making claims about outcome responsibility and making claims about liability responsibility. And step three argues that luck egalitarians either ignore this logical gap or else fill it without engaging in an important moral debate. Consequently, their theory is improperly defended in at least one crucial respect. I’ll expand briefly on each of these steps.

Step one relies heavily on Vincent’s structured taxonomy of responsibility concepts (STRC), which I discussed in a previous blog post. Ideally, you should read that post first before continuing with this one, but things are rarely ideal so here are three important points. First, the STRC highlights the conceptual complexity of everyday responsibility-talk. When people say that someone (or thing) is “responsible”, they could be invoking any one of the following six responsibility concepts:

Virtue Responsibility: This refers to someone’s characteristics or traits. As in “X is a responsible individual, he takes his duties seriously and performs them diligently.”

Role Responsibility: This refers to someone’s duties. As in “X (a ship’s captain) is responsible for the well-being of his crew”.

Liability Responsibility: This refers to the actions someone must perform in order to take responsibility for something, e.g. how they must pay the penalty for something.

Causal Responsibility: This refers to the cause of some event or outcome. As in “The drought is responsible for the famine”.

Capacity Responsibility: This refers to the capacities or abilities someone needs in order to be a responsible agent.

Outcome Responsibility: This refers to the outcomes for which someone is held responsible. As in “X is responsible for murdering Y”.

Second, the STRC highlights the structural relationships between these responsibility concepts. Vincent summarises these relationships by using the following diagram. The diagram suggests that capacity-responsibility shapes causal- and role-responsibility, that causal- and role-responsibility determine outcome-responsibility, and that outcome- and virtue-responsibility determine liability-responsibility.

Third, these responsibility concepts have some significant differences in terms of their core properties. In particular, they vary in terms of their temporal direction and prescriptivity. For instance, causal- and outcome-responsibility are descriptive and backward-looking: in order to determine who is responsible for which outcomes, we must look back to the past and describe the events that happened in it. In contrast to this, role-responsibility and liability-responsibility are forward-looking and prescriptive: in order to determine what steps someone must take in order to pay the penalty for what they’ve done, or what steps they must take in order to fulfill their duties, we must look into the future and prescribe a course of action.

The important point for current purposes is how this taxonomy illustrates the significant conceptual distinction between outcome-responsibility and liability-responsibility: one is backward-looking and descriptive in nature, the other is forward-looking and prescriptive in nature. This is significant since luck egalitarianism relies on the liability concept of responsibility not on the outcome one: to say that a smoker is (outcome) responsible for his ill-health, is not the same as saying that he ought to take (liability) responsibility for his ill-health.

This is to pre-sage the crucial second step in Vincent’s argument. The second step highlights the logical gap between outcome responsibility and liability responsibility. This gap is typically passed over by luck egalitarians because, as Vincent sees it, luck egalitarians are guilty of making something like the following argument:

(1) X (e.g. a smoker) is outcome responsible for A (e.g. lung cancer).

(2) Therefore, X is liability responsible for A.

Clearly, this argument is logically invalid: the conclusion (2) cannot be derived from premise (1). At least, it cannot be derived from that premise alone. A normative “bridging” premise is needed to plug the gap. This is something luck egalitarians need to provide. But even if they did it for this case, they would face another gap that needed plugging. Why is this? Well, because they need to take into consideration the fact that liability responsibility also involves an agent taking certain steps in order to discharge their burden of liability. Thus, for instance, the intuition in the Smoker case is that the smoker must be denied priority in the assignment of healthcare in order to discharge their burden of liability. This is a particular course of action that is prescribed for the smoker.

To spell this out more formally, we say there is a gap between:

(2) Therefore, X is liability responsible for A.

And:

(3) Therefore, X is liability responsible in manner Y (e.g. forced to pay compensation, or denied healthcare benefits).

This gap must also be plugged.

This brings us to the third step in Vincent’s argument. Having illustrated the conceptual division among responsibility concepts, as well as the various logical gaps just described, Vincent goes on to point out how luck egalitarians tend to do one of two things. They either (a) carry on regardless and assume that outcome responsibility somehow entails liability responsibility; or (b) they try to plug the gap with some explicitly stated normative bridging premise.

She suggests — in light of the intuitions being pumped by the Smoker and Gambler cases — the most likely candidate for such a bridging premise is the following:

(4) If X is outcome responsible for A, then X is liability responsible in manner Y.

This would plug both of the gaps identified above, and Vincent calls it a reactive norm of liability. This is because it maintains that one’s liability is a direct function of what one did in the past. The problem with this reactive norm is that it in turn needs to be justified. And the only way to justify it is by looking at the kinds of arguments used in more general debates about desert (i.e. debates about how someone deserves to be treated). These arguments are usually consequentialist or retributive in nature.

Vincent does not attempt to show how the reactive norm may, or may not, be justified in light of desert theory more generally. She merely points out the fact that the presence of the logical gaps identified earlier means the luck egalitarian cannot ignore this theory. Thus, as things presently stand luck egalitarianism, despite its allure, seems under-motivated.

To sum up, Vincent’s article does two important things. First, it provides an illustration of the responsibility-liability gap and, second, it shows how this gap may be relevant to at least one area of normative ethics. I hope to explore more research on this alleged gap in future posts. For now, I’ll sign off.

Doping, Slippery Slopes and Moral Virtues

2012-01-18T20:20:00.000Z

(Series Index)

Well, I’m still stuck on the enhancement-in-sports-and-education-roundabout and probably will be til the end of January. So this post is, unfortunately, yet another addition to my ongoing series. This one is quite narrowly focused, looking at one argument from Chapter 10 of the following book:

Mike McNamee Sports, Vices and Virtues: Morality Plays (Routledge, 2008)

The book is actually pretty interesting. It makes the case for viewing elite sport as a kind of morality play: a forum in which the moral virtues are celebrated, and from which the general population can learn. It’s an idealistic view, but one with which those who complain about the grubby professionalism of modern sports are likely to agree.

I’m only going to zone in on a small part of the book’s overall thesis. The part in question comes from McNamee’s chapter on doping in elite sports. The chapter reviews some of the typical anti-doping arguments and dismisses them in relatively short order. I’m not too interested in this part of the chapter since I’ve covered such arguments elsewhere in this series. The chapter gets rather more interesting when it turns to consider one potentially novel — and McNamee thinks better — argument against doping: the slippery slope argument (SSA). It’s this argument that will be discussed here.

The remainder of this post is structured as follows: part one discusses SSAs in general; part two looks at McNamee’s SSA against doping; and part three looks at McNamee’s complaints about the vices of athletes who dope. Just note that although “doping” has a particular meaning in sport, one that may be thought distinct from “performance enhancement”, the terms are used interchangeably in what follows.

1. A Taxonomy of Slippery Slope Arguments
An SSA has a fairly standard form: it proposes that allowing something to be the case (in this instance, doping in sports) will lead to something else, usually undesirable, happening. And since this undesirable thing should not be allowed to happen, then it follows that the first thing should not happen either. In other words, it proposes that there exists a slippery slope between two things (call them X and Y), and since the second of these is undesirable the first shouldn’t be allowed. To put this more elegantly:

(1) If X is allowed to happen, then Y will happen.

(2) Y should not be allowed to happen.

(3) Therefore, X should not be allowed to happen.

There’s one important thing to note about this version of the argument: there can be more than one “slide” on the slippery slope before we reach the bottom. In the version given here, Y is directly connected to X and Y also lies at the bottom of the slippery slope. As such, the argument is suggesting that there is only one slide down to the bottom of the slippery slope. This need not be the case. There could be multiple stopping off points along the slope before we get to the bottom. All that matters is that the first slide — the one from the current status quo to X — leads, inexorably, to the bottom.

Now, I’ve had the opportunity to discuss SSAs before on the blog. In my series on John Corvino’s article (“The PIB Argument”) I looked at the use of SSAs in the same-sex marriage debate. There, I followed Corvino’s basic taxonomy and identified two forms such arguments could take: (i) the causal and (ii) the logical.

A causal SSA is one that proposes a causal link between X and Y. As an example, consider the following SSA: if you smoke one cigarette, you will want to smoke more cigarettes; if you smoke more cigarettes you will become addicted to nicotine and continue smoking for an extended period of time; and if you continue smoking for an extended period of time you dramatically increase your risk of lung cancer. So, since you should not wish to dramatically increase your risk of lung cancer, you should not smoke one cigarette. In this argument, the link between the points on the slippery slope is causal: one outcome, it is claimed, will naturally lead to another.

Contrast this with a logical SSA. In a logical SSA, the link between the points on the slippery slope is logical, not causal, in nature. This is most common in ethical SSAs. In an ethical SSA, the claim is usually that if we deem some practice to be morally acceptable, then we lose the principled basis upon which we object to other (more undesirable) practices. In other words, the logical barricade that currently exists between our principles and some undesirable practice is eroded. In the same-sex marriage debate, for instance, there are those who argue that in legalising same-sex marriage, we lose the principled basis on which we object to polygamy, incest or bestiality. This was discussed in the earlier series on the PIB argument.

Although I like the simplicity of the logical/causal division, McNamee adopts a slightly more complex taxonomy of SSAs. Relying initially on the work of Bernard Williams, he distinguishes between horrible result SSAs and arbitrary result SSAs. The distinction here depends on the kind of event or outcome that is thought to lie at the bottom of the slippery result. Obviously enough, in a horrible result SSA, the outcome at the bottom of the slope is horrible, whereas in an arbitrary result SSA, the outcome is simply arbitrary. But that just raises the further question, what do we mean by “horrible” and what do we mean by “arbitrary”. Unfortunately, McNamee isn’t clear on this point, and since I haven’t read Williams’s earlier work, I’m not sure that I can clarify the matter all that much. My guess, however, is that a horrible result is one that is morally repugnant or objectionable, and that an arbitrary result is simply one that seems unconnected (either logically or causally) from the initial starting point.

In addition to dividing SSAs up into these two major kinds, McNamee (again borrowing from someone else) looks at three different ways in which the slide down the slope can be conceptualised. This leads to the following three sub-types of SSA:

1. Precedential SSAs: In a precedential SSA, the initial slide from the status quo to X, is thought to set a precedent for further slides down the slope. Imagine you are arguing with your teenage son. He wants to go to some nightclub, but you disapprove. He is persistent and eventually you relent, allowing him to go but only “just this once”. Unfortunately for you, this relenting sets a precedent to which your son can appeal in future cases. Before you know it, you are allowing him to go out whenever he asks, which is exactly what you didn’t want. This kind of SSA could also be referred to as a “thin end of the wedge”-SSA.

2. Sorites SSAs: In a Sorites SSA, the slide to the bottom of the slope is hastened by the conceptual ambiguity of some key term(s). Obviously, the allusion here is to the infamous Sorites paradox: if you remove grains of sand from a heap, one-by-one, at what point does the heap become a non-heap? Here, the problem is caused by the conceptual ambiguity of “heap”. As McNamee points out, conceptual ambiguity of this sort is often exploited by proponents of doping and performance enhancement. For example, proponents of enhancement often point to the fuzzy boundary that lies between “treatment” and “enhancement”. They then use most people’s acceptance of “treatment” to make the case for certain forms of “enhancement”.

3. Domino Effect SSAs: In a domino effect SSA, the slide to the bottom of the slope is causal in nature. One event leads to another, which leads to another and so on. This corresponds pretty much exactly with my earlier description of a causal SSA so I won’t given an example here.

I’m not sure that McNamee’s more complex taxonomy brings with it any great advantages. Although the horrible/arbitrary distinction might be useful, the three sub-types listed above really only elaborate on the logical/causal division discussed earlier. Specifically, they just distinguish between two kinds of logical SSA: the precedential — in which endorsing one moral claim sets a precent for endorsing further moral claims; and the Sorites — in which conceptual ambiguity means we lose faith in our more restrictive moral beliefs. The domino effect SSA is simply a redescription of the causal SSA.

Even though I’m somewhat sceptical about its utility, I’m still going to make use of McNamee’s taxonomy in what follows. This is for the obvious reason that he makes use of it in describing his argument, and since I want to explain his argument here, it’s easier if I follow suit.

2. The Arbitrary Result SSA against Doping in Sport
The section heading gives the game away but, just to state the obvious, having taxonomised SSAs, Mcnamee goes on to present his own, arbitrary result-SSA against the use of doping in sport. He does so in a slightly unusual way. He starts by developing a kind of Sorites SSA that used by proponents of doping, and then he inverts it to support the anti-doping position.

Let’s look at the pro-doping SSA first. Of course, since the argument is being used to support something rather than object to it, it’s not really right to call it an SSA. The moniker “slippery slope” should probably only be applied in the negative case, not the positive. Nevertheless, with that concession to linguistic purity in mind, I’ll persevere in calling it the pro-doping SSA.

The pro-doping SSA discussed by McNamee relates to the ambiguity of the treatment/enhancement distinction. He uses a nice example to make his point:

Skeletal Reinforcement: Apparently (I’m not familiar with the sport) American Footballers can suffer from pretty serious injuries (broken bones etc.). Oftentimes these injuries affect their quality of life in their retirement. Suppose someone, pointing to the prevalence of such injuries, suggested a remedy. Instead of relying on the fragile construction of the human body, all players would have their key skeletal structures reinforced by new materials such as Kevlar. This would prevent serious long-term health effects from accruing to the players.

McNamee seems to accept that most people would look favourably on this kind of intervention. Furthermore, its advocates could probably sneak it in under the guise of its being a “treatment” not an enhancement. After all, reinforcing the key skeletal structures is being done to prevent injuries. And preventing injuries is surely a respectable form of treatment. This is the essence of pro-doping SSA:

(4) If you accept the moral legitimacy of treating sports injuries, then you ought to accept the moral legitimacy of preventing sports injuries.

(5) If you accept the legitimacy of preventing sports injuries, then you ought to accept the legitimacy of skeletal reinforcement in American football.

(6) You do accept the legitimacy of treating sports injuries.

(7) Therefore, you ought to accept the legitimacy of skeletal reinforcement in American football.

I’ve compressed the logic here, but you get the drift. The top of the slope is represented by the proposition “the treatment of sports injuries is legitimate” and the slide is brought about by the conceptual ambiguity of “treatment”. Why shouldn’t preventative interventions be viewed as a type of treatment?

The problem — at least from the perspective of the anti-doper — is that if you accept the moral legitimacy of skeletal reinforcement in this instance, you begin the inexorable slide to a pro-enhancement position. This leads to the inversion of the above reasoning. If you accept skeletal reinforcement for football players, what would you say about artificial toe extensions and arch reinforcement for sprinters? Surely, you’d have accept them too, particularly if it was pointed out that this could reduce the effects of friction on the sprinters’ limbs. But these interventions are likely to have enhancing effects too. Before you know it, you are landed in the landscape of enhancement.

Two points here. First, this Sorites-style SSA might not be valid. Just because there’s no difference between preventative interventions and treatment, does not mean that there is no difference between enhancing interventions and treatment. Indeed, that’s the whole point of the Sorites paradox in the first place: a single grain of sand is very definitely distinct from a heap of sand, even if the dividing line between being a heap and a non-heap is fuzzy.

Second, and more importantly, the pro-doping faction can easily ask the anti-dopers to point to the horrible result that lies at the bottom of the slope — the one that means we shouldn’t start the slide. In other words, they can issue the following challenge: If skeletal reinforcements for American football players aren’t troubling, then maybe we’re wrong to think that toe-extensions are troubling? And if we’re wrong about that, maybe we’re wrong about most forms of enhancement too?

Live to this kind of pro-enhancement argument, McNamee suggests the opponent takes a different tack. Instead of assuming that there must be a horrible result at the bottom of the slope, they can appeal to the possibility of arbitrary results: ones that seem to lose all connection to moral principle. In other words, they can say that by accepting the first slide down the slope, we will create conditions in which moral arbitrariness can thrive, i.e. conditions in which our decisions about which kinds of practices are permissible and which are impermissible seem to lack any firm grounding in reason.

To spell out the argument formally:

(8) If we accept X (some type of enhancement or quasi-treatment like skeletal reinforcement), then we will create conditions in which moral arbitrariness can thrive.

(9) We should not wish to create the conditions in which moral arbitrariness can thrive.

(10) Therefore, we should not accept X.

This is straightforward enough, but we need some reason for accepting (9). Why is it that moral arbitrariness is so problematic? McNamme has the following to say:

Let us take one brief example. There are aspects of our lives where, as a widely shared intuition, we might think that in the absence of good reasons we ought not to discriminate among people arbitrarily. Healthcare might be considered precisely one such case. Given the ever-increasing demand for public healthcare services and products it could be argued that access to them ought typically to be governed by publicly disputable criteria such as clinical need, or potential benefit, as opposed to choices of an arbitrary or subjective nature. (Sports, Virtues and Vices, pg. 186-187)

This is interesting. I think it appeals somewhat to the Rawlsian notion of public reason, i.e. the notion that practices need to be accepted for reasons that are accessible to all members of the public, not because of chance or whim. I probably agree with this, but then I’m forced to question premise (8): why would endorsing enhancement lead to moral arbitrariness? Why would we lose the ability to assess different forms of enhancement with publicly accessible reasons simply by accepting one particular form?

McNamee says the following:

Nothing in the pro-doping, or more broadly the pro-enhancement, position seems to allow for such objective dispute let alone prioritisation…In the absence of a defensible telos, over and above the mindless mantra of more medals, more glory (the narrowly conceived citius, altius, fortius), of clearly and substantively specified ends (beyond the banner of unrestrained “enhancement”), elite athletes, their coaches and their sports emdical back-up teams alike ought to resist the potentially open-ended transformations of human nature and potentialities.

I don’t quite know what to make of this. On the one hand, McNamee demands that decisions about the permissibility of enhancement be open to public scrutiny but says that they can’t do this until proponents of enhancement have some clear, morally defensible telos. At the same time, he acknowledges that there is kind of telos in sight (more medals, more glory, unrestrained enhancement), but dismisses this on, I hate to say it, arbitrary grounds. That is to say, he just seems to assume, without clear argument, that the very idea of enhancing and transforming human potentialities is not “morally defensible”.

Surely he must have a better reason to object to it than that?

3. The Vices of the Doper
Perhaps he does, but it is one that is somewhat distant from the slippery slope argument we have been discussing up til now. As I said at the outset, McNamee’s book defends the idea that sporting contests are a kind of morality play: a forum in which the moral virtues are celebrated, and the vices condemned. Thus it’s no real surprise to find out that one of the main reasons he objects to doping (and enhancement) is that dopers exhibit certain moral vices. McNamee points to two vices in particular: pleonexia (injustice) and shamelessness. Let’s discuss these briefly.

The Vice of Pleonexia: To be virtuous, a person must be just. And to be just they must be willing to give others their due and accept what is due to them. The problem with the doper is that they are not willing to accept what is due to them: they demand more and more, and they shut out others in the process, denying them their due as well. So goes MacNamee’s argument. The problem with this argument argument though is that it is forced to make certain questionable assumptions about the desert relation, i.e. the relation that determines whether somebody deserves a particular kind of punishment or reward. McNamee assumes that commitment, talent and dedication form the basis of the desert relation in sport and that those who engage in doping lack these traits. I think this is arguable on two grounds. First, on the ground that dopers may well display some kind of talent, commitment and dedication (is doping not evidence of dedication?); and second, on the grounds that there may be some trait possessed by the doper that ought to be included in the desert relation.

The Vice of Shamelessness: Shame is tied to feelings of guilt or personal failure. The person who experiences shame will feel both that they have let themselves down and that they have left others down too. As a result, they will seek to hide themselves away. McNamee doesn’t think that we should encourage athletes to feel shame, rather he thinks we should encourage them to have the capacity to feel shame. The problem with dopers is that they may lack this capacity. McNamee uses the example of Charlie Francis to illustrate what he means. Francis said that if Ben Johnson had simply stuck to schedule — knowing when to come off certain drugs and doses — he would not have been caught. This, as McNamee notes, is to treat doping as “a mere problem of timing, not one of ethics”. In contrast to this, McNamee thinks dopers should feel ashamed of any successes they gain by doping. They have let themselves and others down. There are many problems with this argument. The main one is that the belief that the doper should feel shame is usually driven by the belief that their successes are fraudulent or unfair to others. But this is exactly what the pro-doper would argue against. They would say that doped-up performances are neither necessarily fraudulent nor necessarily unfair.

This brings us to the end of McNamee’s arguments against doping. While there is some interesting material in there, I think McNamee has a long way to go before what he says is at all persuasive. His anti-doping SSA needs further work before the connection between enhancement and moral arbitrariness is shown; his claim that the doper exhibits the vice of injustice needs to clarify the nature of the desert relation that is being invoked; and his belief that dopers should feel shame is driven by assumptions that the pro-doper has no reason to accept.

Enhancement in Sports and Education (Index)

2012-01-17T23:10:00.003Z

Sorry for the lack of posts recently. Unfortunately, the first couple of weeks in January are (possibly from now on) going to be dedicated to marking student assignments. Hopefully, I'll be able to get back to posting more regularly soon.

Anyway, to fill the gap, I thought I'd just do an index for all my recent posts on the use of performance enhancers in sports and education. I've listed them in chronological order, since that is probably the best way to read them. As you'll see, they deal more with sports than with education. I'm trying to work on a paper (possibly papers) dealing with the analogy between sports and education at the moment that will cover the educational context in more detail. I mention this several times in the posts that follow.

I think there's some interesting material in here, if you have the time to read it. Enjoy.

Series Index

1. Partridge on Performance Enhancement in Swimming

2. Schermer on Enhancement and Cheating (Part One)

3. Schermer on Enhancement and Cheating (Part Two)

4. Tannjso on Enhancement and the Ethos of Elite Sport

5. Overview of the Arguments Against Doping in Sport (Part One)

6. Overview of the Argument Against Doping in Sport (Part Two)

Overview of the Arguments Against Doping in Sport (Part Two)

2011-12-30T07:00:00.000Z

(Part One)

This post is the second (and final) part in my overview of the moral arguments against doping in sport. As mentioned in part one, I’m using the following article as my guide to this topic:

Angela Schneider and Robert Butcher “A Philosophical Overview of the Arguments on Banning Doping in Sport” in Tannjso and Tamburrini (eds) Values in Sport: Elitism, Nationalism, Gender Equality and the Scientific Manufacture of Winners (Taylor and Francis, 2000).

In their article, Schneider and Butcher identify three main families of anti-doping argument. They are: (i) fairness arguments; (ii) harm arguments; and (iii) integrity arguments. I dealt with fairness and cheating arguments in part one; in this part I will deal with the integrity arguments.

As it happens, Schneider and Butcher are much briefer in their treatment of the integrity arguments than they were in their treatment of the harm arguments. As a result, this post will be much briefer than the previous one. I must say though, Schneider and Butcher’s brevity is somewhat surprising given the fact that they ultimately think that an integrity-style argument holds out the best hope for proponents of the anti-doping stance. Indeed, they themselves ultimately endorse one of these arguments and we’ll spend most of our time discussing that argument in this post.

Before we do that, however, we need to quickly discuss the idea of sporting integrity and dismiss some of the less successful forms of integrity argument. The idea of sporting integrity can be summed up by appealing to notion of authentic athletic performance. (This being something that Nike famously use as their corporate motto.) An authentic performance is one that respects the internal goods of sporting activity; and inauthentic performance is one that does not. The internal goods of sporting activity are the human excellences that are constituted by the rules of sporting activity. I discussed at some length previously.

All integrity arguments against doping will claim that doping leads to inauthentic as opposed to authentic performances. The less successful forms of integrity argument — the one’s dismissed fairly quickly in Schneider and Butcher’s discussion — appeal to the concepts of “unnaturalness” and “dehumanising”. As Schneider and Butcher note, these concepts are either ill-defined or not morally compelling. Consequently, they do not make for the most persuasive arguments. I tend to agree so I see no need to address them at further length here.

Instead, I turn to consider what Schneider and Butcher see as being the most persuasive integrity argument: the irrelevancy argument.

1. The Irrelevancy Argument
The irrelevancy argument makes a very simple, and in some ways modest, claim. It claims that drug-enhanced performances are not necessarily immoral or wicked, but, rather, that they are just irrelevant to the kinds of good or end that sporting activity is trying to promote. Consequently, true athletes — i.e. those who engage in sport in order to pursue the internal goods of sporting activity — should simply have no desire to engage in doping.

In contrast to their discussion of the harm arguments against doping, Schneider and Butcher provide no formal summary of this irrelevancy argument. I always get slightly suspicious when authors fail to do this, particularly when it comes to arguments that they themselves are trying to endorse. Thus, I’ve decided to try to formalise their reasoning as follows:

(1) The main reason for athletes to participate in a sport, is to develop a set of skills that overcome the obstacles created by the constitutive rules of the sport.

(2) Doping (taking substance X) does not help an athlete to develop the skills needed to overcome the obstacles created by the constitutive rules of the sport; it only helps an athlete to gain a competitive advantage.

(3) If something does not help one to satisfy the main reason for participating in a sport, then it should be viewed as being irrelevant by those who wish to participate in a sport.

(4) Therefore, doping should be viewed irrelevant by those who wish to participate in a sport.

Now, I’ll be the first to admit that this formalisation is inelegant. Nevertheless, I think it does capture Schneider and Butcher’s argument in a reasonably faithful manner. And there are three interesting features of this argument that I want to comment on here.

First, the argument is really dialectic in nature, not conceptual or categorical. In other words, it appeals to the internal reasons for action of someone who wishes to engage in a particular activity, not to categorical or conceptual propositions. It then tries to demonstrate for this person how certain other activities are contrary to (or irrelevant to) their own reasons for action. I covered dialectic arguments of this type once before when looking at Gibbard’s argument for the principle of generic consistency. Schneider and Butcher seem very clear about the dialectic intent of their argument in the article under consideration. They repeatedly emphasise the point that a successful case against doping will have to appeal to what the athletes themselves desire, not what the authorities or wider public desire.

Second, because the argument appeals to the internal reasons for action of particular actors, it skates on thin ice. Although the presumption will be that most athletes are motivated by a desire to develop skills and overcome obstacles, one can easily imagine a cynical cohort of athletes who are motivated more by the fame and riches that come with sporting success. They are likely to remain unpersuaded by the argument. Should we care about this exclusion? I’m not sure.

Third, although I like the general idea of the argument, I’m pretty sure it is false. In particular, I’m pretty sure that premise (2) is false. I think many doping substances and practices (e.g. blood doping in cycling) actually do help people to develop the skills and overcome the obstacles set down by the constitutive rules of sport. For instance, cyclists who engage in blood doping really do improve their stamina and pedaling efficiency. Are we really going to say that those skills are irrelevant to the internal good of cycling?

I think the problem here is that Schneider and Butcher try to separate skills development from competitive success. But when you think about it, if the rules of any sporting competition have been carefully formulated, these two things should go together, i.e. those who have the best-developed skills should be the most competitively successful. Of course, it could be the case that the rules of the competition have not been carefully formulated and that competitive success is a very poor measure of skills development. And this may be what Schneider and Butcher are getting at in their argument. In other words, they may be saying: “Look at how out of sync our measures of sporting success are with the internal goods of sporting activity. This is shown by the fact that drug-enhanced performances lead to competitive success.” The problem I have with this is that it’s very difficult to say why drug-enhanced performances should not be competitively successful without arbitrarily assuming that they are contrary to the internal goods of sporting activity.

2. The Unnecessary Risk Argument
Despite the failings of the irrelevancy argument (at least in the form given above), I’m going to entertain the possibility that it is successful in order to examine two follow-up arguments offered by Schneider and Butcher. In some ways, I feel comfortable doing this since these arguments might (if reinterpreted) actually provide additional reasons for supporting the irrelevancy argument, reasons that help to overcome the objection that I offered above. I won’t push this reinterpretation here, but it might be worth exploring at a future date.

Both of the follow-up arguments try to add to the reasons why athletes should wish to avoid doping. Both of the arguments also attempt to re-introduce some of the harm arguments that were discussed in part one. Although Schneider and Butcher were dismissive of all these harm arguments, they feel it is appropriate to make use of them here. Why so? Well, because the main problem they had with the various harm arguments was that they each needed an independent reason for thinking doping was wrong before they could get off the ground. Since the irrelevancy argument has, in Schneider and Butcher’s minds anyway, provided this independent reason, there is hope for the harm arguments once again.

The first of the arguments is the unnecessary risk argument and it works like this:

(5) If taking substance X is irrelevant to developing sporting skills, and if X has some minimal risk of harm associated with it, then it would be prudent for athletes to avoid taking X.

(6) X is irrelevant to developing sporting skills (from previous argument), and X has some minimal risk of harm associated with it (from harm to self argument).

(7) Therefore, it would be prudent for athletes to avoid taking substance X.

I don’t think there’s a whole lot to be said here. In general, I find the basic principle (set down in premise 5) to be persuasive. To use an analogy, if I don’t have cancer, I don’t see any reason to undergo a course of chemotherapy since chemotherapy is harmful and would only improve my health if I actually had cancer. This would be true even if the risks associated with gratuitously undergoing chemotherapy were quite small. Still, the obvious point must be made: the argument is only really successful if doping is, in fact, irrelevant to developing sporting skills.

The second follow-up argument is the self-defeating argument. It works like this:

(8) The only reason to take substance X is to gain a competitive advantage.

(9) If one athlete takes substance X and thereby gains a competitive advantage, then all athletes will be coerced into taking that substance.

(10) If all athletes are coerced into taking substance X, then there will no longer be a competitive advantage associated with substance X.

(11) Therefore, there is no reason to take substance X.

A few words about this argument are in order.

First, this argument assumes that a prisoners’ dilemma (or arms race) logic prevails in competitive sports. I mentioned this when discussing the harm-to-other-athletes argument in part one. I think it’s probably true that such a logic prevails in competitive sports, but I have no good evidence to back this up.

Second, since the argument assumes a prisoners’ dilemma logic, it should really take into account all the features of the prisoners’ dilemma game. Thus, for example, the reasoning will only be persuasive if other competitors are aware that substance X is responsible for the first athlete’s success. If this information can be concealed from the other competitors, the coercion may not take place. Also, although the reasoning is persuasive, the whole point of a prisoners’ dilemma is that one individual cannot change the strategic dynamic of the game by unilaterally choosing to not engage in doping. The players will need to cooperate in order overcome the problem. This might be one reason why general bans and enforcement policies need to be introduced: if left to their own devices, athletes won’t be able to prevent doping.

Third, and once again somewhat obviously, the argument is only successful if premise (8) is true. If it turns out that substance X also helps athletes to achieve the internal goods of sporting activity, then there would be good reason to continue to take substance X, even after the competitive advantage it bestows is eroded.

4. Conclusion
That brings us to the end of this overview of the arguments against doping in sport. As we have seen in this part, Schneider and Butcher think that an integrity-based argument holds out the best hope for proponents of the anti-doping stance. They are particularly enthusiastic about the irrelevancy argument outlined above. They think that this argument, in conjunction with the two follow-up arguments, provides good reasons for athletes to disavow the use of doping substances. That said, I have presented some reasons for thinking that the irrelevancy argument is unpersuasive.

Overview of the Arguments Against Doping in Sport (Part One)

2011-12-29T07:00:00.002Z

I’m sorry to say that my obsession with the ethics of enhancement in sport is set to continue for a few more days at least. For some background as to why I’m interested in this topic see here and here. I appreciate some readers may be getting slightly bored with this topic, but today’s post should be pretty useful since it is the first in a two-part series that attempts to provide a broad overview of all the anti-enhancement arguments in sport (but in this case the term “doping” is standing in for “enhancement”).

I’ll be using the following article as my guide:

Angela Schneider and Robert Butcher “A Philosophical Overview of the Arguments on Banning Doping in Sport” in Tannjso and Tamburrini (eds) Values in Sport: Elitism, Nationalism, Gender Equality and the Scientific Manufacture of Winners (Taylor and Francis, 2000).

In this article, Schneider and Butcher identify three main families of arguments against doping. They are: (i) fairness arguments; (ii) harm arguments; and (iii) integrity arguments. The first group of arguments suggest that a permissive attitude toward doping leads to unfairness; the second group of arguments suggest that a permissive attitude toward doping creates different varieties of harm; and the third group of arguments suggest that a permissive attitude toward doping somehow perverts or undermines the integrity of the sport.

Within each of these groups there are a number of different arguments to be considered. I have presented these in the diagram below. Over the course of the next two posts I will try to examine most of these arguments, using Schneider and Butcher’s analysis as my guide. I will, however, be excluding the fairness arguments from my discussion. I do so since I have already considered these kinds of arguments at length elsewhere.

In the remainder of this post, I will look at the various harm-based arguments against doping. Three quick points at the outset. First, “harm” is generally agreed to be a morally relevant consideration, particularly in liberal political theories. Second, “harm” is obviously an ambiguous concept. This needs to be borne in mind when reading the remainder of this post: the arguments that we are about to discuss may all appeal to different forms of harm. And third, because of the (ambiguous) nature of harm, there can really be no general harm-based argument against doping. What matters is whether a particular form of doping is harmful in a particular sport. This needs to be assessed on a case-by-case basis. Schneider and Butcher overcome this problem by using some case studies in their analysis. I’ll mention these as I go along.

1. Harm to Self
The first, and in some ways the most obvious, harm-based argument against doping comes from the notion that doping is harmful to the athletes who partake in it. Schneider and Butcher formalise these “harm-to-self” arguments in the following manner:

(1) Substance or practice X harms its user.

(2) The user needs to be protected from this harm.

(3) The user can be protected by banning the substance or practice.

(4) Therefore, the substance or practice should be banned.

They then imagine this argument being used to justify a ban on the use of anabolic steroids in sport. Would the argument be successful?

As regards premise (1), Schneider and Butcher note that the evidence is mixed. One reason for the evidence being mixed is that the substance is controversial and so difficult to study in a controlled scientific manner (mainly because ethics committees tend to reject proper studies). Controlled trials using low doses seem to reveal that there is little harm, but anecdotal evidence amongst athletes using high doses suggest some potentially harmful side-effects.

(5) The evidence on harm is mixed: better quality studies are needed before we can say anything definitive.

So people who wish to use the harm argument will — somewhat paradoxically — need to encourage further studies if they are to justify premise (1). Whatever the reality may be, Schneider and Butcher are willing to concede the truth of premise (1) since they think the main problem with the argument lies in premise (2).

And what might this problem be? The answer, in a word, is paternalism. It is generally accepted — following the lead of J.S. Mill — that paternalism is unacceptable in a liberal society. Competent adults have a right to autonomy and the right to autonomy encompasses the right to make decisions that go against one’s interests. Since professional athletes are usually competent adults, it follows that we shouldn’t intervene to prevent them from taking a potentially harmful substance. To be sure, this argument isn’t completely compelling: paternalism can be acceptable in some instances. For instance, Schneider and Butcher suggest that a paternalistic attitude toward child athletes might be acceptable. They just don’t think such an exception from general rule applies to competent adult athletes.

There are other problems with premise (2). The chief one being that many sporting activities and training practices are harmful as well and yet we don’t ban people from participating in them. Take boxing as an example: to be a boxer means that one takes on certain risks associated with the sport. Since we don’t step in to prevent people from voluntarily competing in this potentially harmful activity, how could we justify stepping in to prevent people from taking a potentially harmful drug?

(6) Individuals have a right to autonomy, and this right includes the freedom to make decisions that are harmful to themselves.

(7) Other aspects of the sporting life are harmful too, we need some additional reason to justify singling out the harm caused by doping.

Premise (3) is also in trouble. Schneider and Butcher argue that there is very little evidence to suggest that banning the use of a substance actually protects athletes. Indeed, despite the fact that anabolic steroids are banned in many sports, athletes continue to take them in “clandestine, unsanitary and uncontrolled ways”. Other steps are probably more effective in weening athletes away from steroids, steps which Schneider and Butcher return to later in the article.

(8) In practice, doping continues even when bans are in place; arguably, bringing doping out into the open might make it safer.

The argument map below summarises the reasoning to this point. The overall conclusion is that the harm to self argument seems like a non-starter.

2. Harm to Other Athletes
On the face of it, a harm-to-others arguments is far more likely to succeed than a harm-to-self argument. The reason goes back to the core of Millian liberalism: the harm principle. Although it is wrong to stop someone from harming themselves, it is right to intervene and stop them from harming others. Thus, as we switch to consider the harm-to-other athletes argument, things are looking up from proponents of the doping ban.

To see whether things will remain on the upside, we need to dress the argument up in its formal garb:

(1) An athlete’s use of substance X causes harm to other “clean” athletes.

(2) Those other athletes need protection from this harm.

(3) Banning substance X will protect those other athletes.

(4) Therefore, substance X ought to be banned.

What are we to say about this? Well, first things first, we need to some clear grasp on the nature of the “harm” that is thought to arise here. Schneider and Butcher suggest the harm of coercion is the main one, with coercion then bringing further harmful effects if the substance itself turns out to be harmful in some way. In other words, the following two premises support premise (1).

(5) If one athlete uses substance X, and substance X is performance-enhancing, then other athletes will be coerced into taking that substance.

(6) Coercion is a form of harm (that may bring further harms with it).

The problem Schneider and Butcher then see with the argument is that the harm of coercion is commonplace in sport. For example, if one athlete takes up a new (potentially harmful) training regime, and this training regime proves highly successful, then other athletes will be forced to follow suit. In some ways, that’s just the nature of the beast in competitive sports. There is an arms race logic that prevails. In order to stay competitive, athletes will need to up the ante, and once they do this others will have to up the ante too. This process can cycle on indefinitely.

So the question for Schneider and Butcher then becomes: why is upping the ante by adopting some new training regime less objectionable than upping the ante by taking steroids (or other drugs)? To answer that question we must move beyond harm-related concerns to concerns about the nature of doping and the nature of sporting excellence. In other words, premise (2) of the argument is hopelessly incomplete.

(7) Coercion is commonplace in sport. So to say that other athletes need to be protected from being coerced into taking substance X, we first need to have some clear reason for distinguishing coercion into doping from other forms of coercion.

Schneider and Butcher try to find some independent reasons for thinking that coercion into doping is different later in their article, and once they have done this they think a coercion-based objection to doping could become successful. We’ll see how this might work in part two. For now, let’s move on to the next harm-based argument. Argument diagram is below.

3. Harm to Society
The next argument is predicated on the notion that doping harms society as a whole. Following the template that has been set down above, we can formalise this argument like so:

(1) An athlete’s use of substance X causes harm to society.

(2) Society needs to be protected from this harm.

(3) Banning substance X will protect society.

(4) Therefore, substance X ought to be banned.

The key to evaluating this argument is, once again, to clarify the kinds of harm to which it appeals. Schneider and Butcher identify two possible ways in which the use of certain drugs in sport might harm society (particularly children, who are the future of society). First, it might harm society by providing role models who encourage an attitude of disrespect toward rules and authority in general. Second, it might harm society by providing role models who encourage other forms of substance-abuse. Let’s take these in turn.

(5) The use of substance X provides role models who encourage an attitude of disrespect toward rules and authority.

(6) The use of substance X provides role models who encourage other forms of substance abuse.

As regards the first kind of harm — that of encouraging disrespect for rules and authority — there are two things that need to be said. The first is that not all forms of disrespect for rules and authority are to be discouraged; the second is that whether taking steroids or other substances does in fact model an attitude of disrespect depends on whether the substances in question are actually banned. If they are not, then taking them cannot model an attitude of disrespect. But this argument is being used to support the introduction of the ban in the first place. Consequently, in its current form, the argument simply begs the question.

(7) An attitude of disrespect toward rules and authority is not always a bad thing.

(8) The use of substance X can only encourage an attitude of disrespect toward rules and authority if the use of substance X is banned in the first place.

As regards the second kind of harm — that of encouraging other forms of substance-abuse — Schneider and Butcher say the following. There are many substances (cigarettes and alcohol spring to mind) that are deemed appropriate for adults to take and inappropriate for children. And yet we do not ban adults from taking those substances. Why couldn’t doping substances be among those? The only way a ban could be justified on this kind of ground is if there is something particularly problematic about the doping substances (e.g. if they carried the same addictive effect as heroin), and that doesn’t seem to be the case. Also, the causal link here is probably dubious.

(9) There are many substances that are off-limits to children, but not to adults. Why couldn’t substance X be one of those?

(10) The causal link between taking substance X and encouraging other forms of substance-abuse is dubious.

Although this is probably enough, there are few more problems with this argument. We’ll briefly catalogue a few of these here.

One particularly significant problem is the assumption it makes about sport and role models. There are other public figures — e.g. rock stars and actors — who we don’t necessarily expect to provide good role models for others. So why should we expect this of sportspeople?

(11) Why should sportspeople be role models when other public figures are not held to this high standard?

Some philosophers have (apparently) argued that sports do play a particularly important role in shaping a young person’s worldview. But even if we accept that “sport is different” in this regard, we are then forced to confront another dubious assumption. You see, for the role model argument to really work, we’d need to explain why drug-enhanced performances are something that should not be encouraged, i.e. are things toward which young people should not aspire. Not all drug-enhanced performances are negatively perceived. For instance, drug-induced poetry and music is sometimes commended, or viewed as no better or worse than non-drug induced versions. Why should drug-induced sporting performances be different? The answer to that comes from looking at the integrity of sport, not at the harm it can cause.

(12) We can only say that taking substance X is harmful to society if we have a justifiably negative attitude toward drug-enhanced performances. We have no such justification yet.

Finally, and more briefly, even if all these criticisms don’t apply, premise (3) would still be questionable. Will introducing a ban really protect society from harm?

(13) It is doubtful whether a ban on doping would actually protect society from harm.

The argument diagram below summarises all of this.

4. Harm to Spectators
One final group of people who might be able to rustle up a harm-based objection to doping would be the spectators. Schneider and Butcher think that the possibility of there being a sound argument of this type is pretty slim. The main kind of harm caused to spectators is that their aesthetic enjoyment of the sport is somehow reduced or undermined by watching drug-enhanced performances. For example, those who watched Ben Johnson’s infamous 100m victory back in 1988 no doubt felt cheated and disappointed when they subsequently learned that he failed a drugs test.

There are two problems here however. First, its not clear that there is any great harm being caused here. Certainly, sporting authorities might be worried if spectators start to turn their backs on a sport due to doping (as may have happened in cycling) but its not clear whether that is a sufficient moral reason to ban doping. Second, the harm to spectators could, arguably, be solved by adopting a pro-doping stance rather than an anti-doping stance. If we allow all competitors to use doping substances this would remove spectator’s concerns about unfair victories and might even make the sport more exciting.

Thus, it seems unlikely that the harm to spectators argument will ever be compelling. We won’t bother with a diagram here since this is relatively uninteresting.

5. Harm Caused by Bans
To this point we have been looking at harm-based arguments that support the ban on doping. But harm-based arguments are implicitly consequentialist in nature. And since consequentialism aims at the best overall outcome, there is a flipside that needs to considered here, namely: would a ban on doping cause significant harms that could be avoided by adopting a permissive attitude toward doping?

Schneider and Butcher think that there is one major harm that is caused by bans on doping. This is the harm that it does to a person’s right to privacy. It is widely-known that the only effective way in which to police a ban on doping is to have random, year-round drug tests. Such tests are needed since banned substances can be taken in the off season and still benefit the athlete. But such tests mean that the athlete constantly faces the prospect of a random drug test. This is a massive intrusion into the athlete’s private life.

We could formalise this suggestion into a privacy-based argument against bans, as follows:

(1) Athletes have a right to enjoy private lives.

(2) A ban on doping would have to be enforced with a regime of year-round, randomised drug tests.

(3) A regime of year-round, randomised drug tests would violate an athlete’s right to privacy.

(4) Therefore, a ban on doping would violate an athlete’s right to privacy.

Schneider and Butcher see one major objection to their argument being made by proponents of the bans. This is that athlete’s somehow lose their right to privacy by becoming professional athletes. This would presumably be because they don’t have a right to compete in professional sports in the first place, and so when they enter the domain of professional sports they enter a domain that is excluded from the general class of rights.

(5) The domain of professional sports is excluded from the general requirements of rights-based societies. Professional sportspeople lose their right to privacy when they enter that domain, and they have no “right” to enter that domain in the first place.

Schneider and Butcher see two problems with this objection. First, if taken seriously, this kind of objection would seem to imply that sporting authorities are entitled to introduce all sorts of rights-violating rules. That is surely absurd. Second, if the objection is to avoid absurd implications, it must show why violating the right to privacy in this particular manner is permissible, but other forms of rights violation are not. In other words, it must show why doping is so morally objectionable that it justifies the violation. This justification is something we are still looking for.

(6) It is absurd to exclude the domain of professional sports from all the requirements of rights-based societies.

(7) In order to prevent the absurd implications of this principle, we’d need some additional reason for thinking that violating the right to privacy was justified in the case of doping, but that other forms of rights-violation could not be justified on similar grounds.

The relevant diagram for this is below.

6. Conclusion
We have now run through all the major harm-based arguments in favour of (and against!) doping bans. As we have seen, none of these arguments is particularly persuasive. The harm to self argument is both in need of some hard evidence and in danger of being overly paternalistic. And the various harm to others arguments all fail to explain why doping is so harmful. In fact, they all tend to beg the question, in the technical sense of that term. Furthermore, there is a least one harm-based argument against doping bans.

In light of this, we must deem harm-based arguments against doping to be a failure. Perhaps the integrity-based arguments will fair better. We’ll find out in part two.

Tannjso on Enhancement and the Ethos of Elite Sport

2011-12-28T12:11:00.000Z

As part of my ongoing struggle to understand the arguments for and against the use of enhancement technologies in sporting contests, I want to take a look at the following paper by Torbjorn Tannjso (that’s his name without the appropriate accents by the way):

“Medical Enhancement and the Ethos of Elite Sport” in Bostrom and Savulescu (eds) Human Enhancement (Oxford: OUP, 2009).

Although I’ve read quite a bit about this topic recently, I felt it would be worthwhile providing an exposition and analysis of Tannjso’s paper for two reasons. First, he has written quite a bit about the ethics of sport in the past, so he should be a good guide to the kinds of ethical issues that are raised in this field. Second, and rather more importantly, his paper takes an unusual approach to the topic, at least in light of the other papers I have been reading.

What is this unusual approach? Well, in the two previous papers that I’ve covered on this topic, there has been a tendency on the part of the authors to start off with some general ethical principles (e.g. fairness) and work from those principles to specific conclusions about the use of enhancement in sport. Tannjso’s paper is interesting because it takes the opposite approach: it works from several case studies in sport and tries to figure out which principles guide our intuitive responses to those cases. Although this methodology is common in ethics, I had yet to encounter it in my readings on this topic.

As a result of his methodology, Tannjso’s article reads like a mystery novel (of sorts): he presents us with a case study, raises some questions about this case study, tries to find a principle that will answer those questions and then repeats the process in an effort to further refine his conclusions. The article as a whole is structured around an attempt to find the ethos of elite sport, i.e. that principle or set of principles that explains why the rules of sport are as they are, and why we react differently to different kinds of enhancement in sport.

I’ll try to cover each major step of Tannjso’s analysis in what follows. I start by looking at his proposed distinction between negative and positive medical interventions, and enhancement proper. I follow this by presenting some of his various case studies and the kinds of reaction they provoke. And I conclude by sharing with you what Tannjso thinks really is the ethos of elite sport.

1. Some Conceptual Clarifications
Tannjso proposes that we distinguish between the following kinds of medical intervention:

Negative Interventions: These are medical interventions that are designed to cure, eliminate or alleviate a handicap or disadvantage that someone has relative to the population as a whole.

Positive Interventions: These are medical interventions that are designed to improve the functioning of some trait, organ or system within the natural variation.

Enhancement Interventions: These are medical interventions that designed to improve the functioning of some trait, organ or system beyond natural variation (or, alternatively, to add new non-natural traits).

We can illustrate this by reference to the following (hypothetical) graph. Imagine that the graph depicts the variation in foot sizes across the human population (assume it’s of one sex for the time being, just to avoid some possible complications). As you can see, the distribution follows what it called the “normal" form. Although this graph is hypothetical, I assume that this is basically true of the actual distribution of foot sizes across the human population. Using this graph as our guide, we can then define a negative intervention as one that takes someone from the lower end of the distribution into the middle; we can define a positive intervention as one that takes someone from either the lower or middle of the distribution to the higher end; and we can define an enhancement as something that takes someone beyond the higher end of the distribution.

Tannjso acknowledges that the conceptual boundaries between these three types of intervention are fuzzy. For example, where exactly is the cut-off point for a negative intervention? Is it one standard deviation from the mean? How about two? These questions don’t seem to have an obvious or agreed upon answer; any boundary that we draw is liable to seem arbitrary.

Still, for all their fuzziness, distinctions of this sort do play some part in how we think about the ethics of medical intervention, particularly when it comes to deciding which interventions to prioritise and which interventions to fund from the public purse. You can probably imagine how this might go. When it comes to prioritisation, the obvious sequence would seem to be: negative interventions come first, positive interventions come second, and enhancements come third. (Of course, this is only “obvious” if we make certain moral assumptions.) When it comes to funding, most people think that negative interventions should (in general, but not in every instance) be publicly funded; that positive interventions probably should not be publicly funded; and that enhancement should really be privately funded.

These presumptions are not above reproach, but they are plausible. Anyway, they need not detain us here since we have other issues relating specifically to medical interventions in the sporting contest.

2. Some Case Studies on the Ethos of Elite Sport
As I said at the outset, Tannjso explores the ethics of enhancement through a set of case studies. They range from the hypothetical to the actual. With each case study, Tannjso tries to first identify the reactive judgments they provoke, and then consider what these reactions say about the ethos of elite sport. I’ll try to set out each of his major case studies here (there are more mentioned in the article, but the following relate specifically to sport).

The first case study is hypothetical and is, in fact, the main case study. Tannjso uses this as his main proving ground for his subsequent conclusions about enhancement and sport. The case concerns a fictional highjumper who undergoes a medical enhancement to lengthen his legs:

The High Jumper: A skilled surgeon manages give a man three metre long legs. The man subsequently tries to compete in the high jump. The problem is: with his leg length, he can easily hop (or step!) over the bar in the high jump competition. This allows him to clear heights that are all but unobtainable to other competitors.

Tannjso thinks that this hypothetical case provides a clear enough example of an objectionable enhancement, one the sports authorities would be keen to ban. He’s just not sure why it is so objectionable. There are several features of the case — as described above — that are potentially objectionable. But which one is the most significant? Which one really justifies our negative reaction?

To answer this question, Tannjso proposes that we look at some historical enhancement-related rule changes in the pole vault and javelin competitions. One of these changes seemed to embrace enhancement, while the other seemed to reject it:

The Pole Vault: At one time in its history, pole-vaulting was carried out using a pole made of bamboo and steel. This was replaced by a fibreglass pole. The fibreglass pole was pre-bent and allowed the vaulters to clear significantly greater heights than did the old bamboo and steel ones. This pole-enhancement was largely embraced by both pole-vaulters, authorities and fans of the sport.

The Javelin: In 1986, the centre of gravity in the javelin was moved forward 10cm. This accomplished two things: it made the javelin safer to track and spot by the umpires, and it also reduced the distance that the javelin could travel.

Why were the reactions different in these two cases? A few things seem relevant. First, in relation to the pole-vault, the new poles were available to all competitors, so they didn’t raise any fairness issues. Second, and again in relation to the pole-vault, the new poles made the sport more exciting for both competitors and spectators. Third, in relation to the javelin, the reduction in the distance helped to accommodate javelin throws in the infield. So the decision was at least partly motivated by a practical constraint. Fourth, and finally, in both cases, the changes do not appear to be objectionable. But why was that? To answer this we must examine the ethos of elite sport.

3. What is the Ethos of Elite Sport?
Tannjso's initial attempt to analyse the ethos of elite sport comes up with three key ideals of sporting contests. These are: (i) aesthetic quality, i.e. the contest should provide aesthetic enjoyment for the spectator; (ii) competitiveness, i.e. the contest is a matter of winning and losing (a zero-sum game); and (iii) fairness, i.e. each competitor should have a fair chance of winning the contest. Individual contests may frequently fall short of these ideals, but they are, nonetheless, ideals that should be aimed at.

What we now wish to know is whether these ideals can explain our different reactions to enhancement in the high-jump, pole-vault and javelin case studies. Tannjso thinks not. Having one competitor with extra long legs might reduce the aesthetic quality and fairness of the high jump in the short term, but if we wish to restore these two things, then we could adopt a pro- or anti-enhancement stance. In other words, we could simply encourage all competitors to go for the leg-extension surgery, or we could ban it. Fairness and aesthetic quality could be preserved either way.

We can see how this balance might affect the reasoning in the pole-vault and javelin case studies. In the pole-vault case, giving the new fibre-glass pole to all competitors seemed not to damage the ethos of the sport and yet was clearly a pro-enhancement decision. This is possible because clearing greater heights made the sport more exciting. What then of the javelin case? Why did the authorities adopt an anti-enhancement stance there? The answer would appear to be that non-moral (or non-ethos-related) safety and practicality concerns tipped the balance toward the anti-enhancement stance in that particular case. Those non-moral concerns did not seem to apply to the pole-vault case.

All of this suggests that the three sporting ideals identified above do not help to explain our negative reaction the high-jump case. Those ideals are basically neutral when it comes to the issue of enhancement. We are forced then to explore other potential sporting ideals. Tannjso does this at some length in his article, introducing new case studies along the way to further address the complexities of our intuitive judgments. I won’t repeat every step in his analysis here. Instead, I’ll skip straight to the punchline.

Tannjso thinks that when you explore all the possibilities, there really only one aspect of the ethos of elite sport that can explain our reaction to the high-jump case. It is this: that the winners of elite sporting competitions should be those who won the genetic lottery. As he puts it himself:

The explanation here must refer to a further aspect of the ethos of elite sport, a very special notion of justice typical of it. This is a notion of justice insisting that we all must accept the ticket we have actually drawn in the genetic lottery. Genetic differences are not irrelevant to the outcome of the competition. Indeed, genetic differences are what should be decisive, once we have eliminated other differences

The idea is that most regulations and changes in sport are motivated by an attempt to level the playing field between competitors as much as possible, so that genetic differences are all that can really decide the outcome.

Now, to be clear, Tannjso does not think that this aspect of the ethos of elite sport is at all commendable. He describes it as being a “Nietzschean view” of sporting justice, something that sporting authorities should be keen to get rid of. He just thinks it is ultimately what explains the negative reactions to some kinds of enhancement. He also thinks that if we do get rid of the Nietzschean view of sporting justice, we will not be able support a rigidly anti-enhancement view. We will be left instead in the predicament described above in the pole-vault and javelin examples: a scale that could in either the anti- or pro-enhancement direction, depending on the effect this would have on aesthetic quality, competitiveness, fairness and other non-ethos-related considerations.

Schermer on Enhancement and Cheating (Part Two)

2011-12-24T20:36:00.000Z

(Part One)

Welcome to this, the second part, of my brief series on Maartje Schermer’s article “On the Argument that Enhancement is Cheating’”. The article examines the claim that enhancers ought to be outlawed in both sporting and educational contexts because their use amounts to a form of cheating. To be honest, I’m using Schermer’s article as a springboard from which to develop some of my own ideas about the propriety of enhancement in both settings, but I’m still trying to acknowledge my debt to her work.

As we saw in part one, there is little to be said in favour of the Enhancement-is-Cheating-Argument (ECA) in the sporting context (and, by analogy, in the educational context). Cheating occurs when someone violates of the rules of a sporting contest in order to gain an unfair advantage. Under this definition, it is possible that the use of enhancers would amount to cheating, but this is easily rectified by changing the rules in order to allow enhancement. No major moral objection is posed by the ECA.

A more promising argument focuses on why changing the rules of a sporting contest so as to allow enhancement is not acceptable. We examined one such argument in part one. The argument was based on the idea that the rules of sporting contests are designed to promote a certain set of human excellences (e.g. athletic prowess) and that the promotion of those excellences would be undermined by allowing the use of enhancers. Using some philosophical jargon, we called this the Enhancement-breaches-the-Constitutive-Regulations-Argument (EBCRA). This argument built considerably on some of the basic ideas in Schermer’s original article.

In this entry, I consider whether the ECBRA can apply to the educational context as well as the sporting one.

1. The ECBRA in the Sporting Context
To assess the applicability of the ECBRA to the educational context, we need to briefly return to its canonical formulation in the sporting context. This was the following (numbering is consistent with part one):

(7) We ought to prevent people from breaching the constitutive regulations of a sporting contest.

(8) The use of enhancers is a breach of the constitutive regulations of sporting contests.

(9) Therefore, we ought to prevent people from taking enhancers when they participate in sporting contests.

An attempt to defend premise (7) is laid out in part one of this series, I shall not repeat it here. What I do wish to repeat here is the problem with premise (8). As I noted in part one, this premise is the weakest link in the ECBRA. It is not at all obvious that the use of enhancers violates the constitutive regulations of sporting contests. The problem has to do the clearly identifying the kind of human excellence that the constitutive regulations are being used to promote. If we fail to do this, we won’t be able to say whether or not (8) is true or false.

For some sporting contests (like, say, running) it might be relatively easy to work out which sporting excellence is being promoted. But for other sporting contests this will prove far more difficult. This is because those contests will often be designed to promote a range of human excellences, from athletic ability to strategic astuteness. To give you an example, look at the following video:

Have you watched it? If so, ask yourself the following question: was the move that the player performed in this video something that we should encourage? I don’t know a whole lot about American Football, but I’d say that it is. The player exploited certain assumptions that other players had about the appropriate way in which to play the game. He thought outside the box and gained a strategic advantage by doing so. Surely that it something we should encourage in the sporting context?

Rhetorical and all as it is, I think this question has some persuasive force: it suggests that a certain strategic ruthlessness is something that we can admire on the sports field. But then this raises the question: if people have assumptions about the impropriety of using chemical (or other) enhancers in sports, and if those assumptions could be exploited so as to gain a strategic advantage, why should this be discouraged? What is it about the use of enhancement that changes this from being a case of admirable strategic ruthlessness to an impermissible breach of the constitutive regulations?

There may well be answers to that question in the sporting context — I shall not pursue them here — but I will suggest that this kind of question is particularly important when it comes to assessing the applicability of the ECBRA to the educational context, as we shall now attempt to do.

2. The ECBRA in the Educational Context
Let’s start by formalising the ECBRA for the educational context. This time round, instead of focusing on sporting contests, we shall be focusing on educational assessments. We shall be suggesting that educational assessments are constituted by a set of regulations, and that these regulations are designed to promote a certain suite of human excellences. Those human excellences will all have to do with the cultivation of certain cognitive and other intellectual virtues. The claim will then be that the use of enhancers undermines the cultivation of those virtues. As follows:

(10) We ought to prevent people from breaching the constitutive regulations of educational assessments.

(11) The use of enhancers is a breach of the constitutive regulations of educational assessments.

(12) Therefore, we ought to prevent people from using enhancers when they undertake educational assessments.

The defence of premise (10) is not something I shall be getting into here — it should be relatively clear how one would go about defending it from what was said above and in part one. What I want to focus on is premise (11). As was the case with premise (8) in the previous argument, this seems like the weakest link here. And once again, the weakness has one main source: we can’t know whether the use of enhancers is a breach of the constitutive regulations unless the human excellences that the constitutive regulations promote are clearly identified.

We can imagine some pretty clear cut examples that would fall within the scope of premise (11). A weaker student might, for instance, try to “enhance” their performance in some assessment by stealing or copying from a stronger student. Alternatively, and as is becoming increasingly common, a student might pay some online essay mill to write an essay for them (here’s an interesting whistleblower’s account of this burgeoning industry). Although I put the word enhance in inverted commons when describing these actions, I see no reason to exclude them from the class of enhancements, they just happen to be particularly egregious and morally objectionable forms of enhancement. They involve claiming credit for someone else’s work, and thereby lead to a complete subversion of constitutive regulations of educational assessment: no matter what kind of human excellence we may be trying to promote through our assessment processes, claiming credit for the work of another cannot be among them.

I’m not sure how to conclude things from here. This clear cut example is not particularly edifying since it doesn’t clarify the kinds of human excellence that are being promoted in the educational context, and it doesn’t tell us whether other forms of enhancement, such as the use of chemical cognitive enhancers, would be morally objectionable. I suspect it will be difficult to bring any great clarity to this issue since education is such a diverse field and since many different, not always compatible, human excellences, might be promoted in different disciplines. Still, I’m going to try to identify some general “Educational Excellences” that might be common to a range of disciplines and see whether they pose problems for some forms of enhancement.

3. Educational Excellence and Enhancement
I’m going to look at three potential educational excellences. I’ll start with an obviously circumspect one, one that I already discussed above:

The Excellence of Strategic Ruthlessness: All education is designed to encourage people to do whatever it takes to achieve the best possible results.

This excellence poses no problems for any forms of enhancement, indeed it does quite the opposite: it actively encourages people to use any means necessary to produce the best possible results (by “results” here is meant results in educational assessments). And for that reason alone it is clearly objectionable as an educational excellence. For if we really did try to encourage strategic ruthlessness of this form, we could have no objection to the student who purchased an essay from online essay mill. Since it would be absurd to reward or commend this kind of activity in an educational setting, strategic ruthlessness — at least when it takes this extreme form — cannot be a educational excellence.

How about the following:

The Excellence of Procedural Mastery: All education is designed to encourage people to master a set of processes, not to achieve a set of outputs.

Although there are conceptual difficulties when it comes to distinguishing processes from outputs, I think there is a lot to be said for this particular educational excellence. Across most subjects that I teach, and across most subjects that I am aware of, process is typically valued more than output. I think that’s why I frown so much on the student who purchases an essay off the internet. In so doing, they bypass making any use of the intellectual processes and capacities that the assessment is supposed to measure.

Still, even if there is a lot to be said for this particular educational excellence, does it pose problems for enhancement? Only if enhancement necessarily leads to the bypassing of the processes that we are trying to assess in the educational context. It’s unlikely that all forms of enhancement do this. For instance, the use of some cognitive enhancers may actually encourage a greater development of the intellectual processes and capacities that educators are trying to develop. So why not allow them to be used?

This leads me to suggest the following:

The Excellence of Critical Thinking: All education is designed to encourage people to master a set of critical thinking skills. Critical thinking skills involve the identification and evaluation of assumptions and arguments.

This excellence is essentially a more specific form of the previous one: it identifies critical thinking as the specific process that educational is designed to promote. I haven’t been too careful in defining what critical thinking skills actually are, but hopefully the brief clarification given above is enough for present purposes. Once again, I think there’s a lot to be said for this particular educational excellence. Indeed, in all subjects that I teach, my main goal is to encourage people to develop their critical thinking skills. I just try to show them how to do so in relation to a particular subject area.

Nevertheless, admirable and all as it is, the question still arises: does this educational excellence pose any problems for the use of enhancers? I suspect not. I suspect that most enhancers will have no direct role to play in improving critical thinking skills. If someone takes a drug that improves their memory or concentration, they will not necessarily become more critical thinkers. The skill of critical thinking seems to involve a different set of processes. Those drugs may be indirectly beneficial, but by themselves they will be useless to someone wishing to become a critical thinker.

But what does this mean for the ECBRA? Perhaps very little. For if critical thinking is the primary educational excellence, and if most enhancers can’t directly help someone to improve their critical thinking, the use of enhancers will not really amount to a breach of the constitutive regulations: it will simply be an irrelevant distraction. Still, if it is an irrelevant distraction, this could provide some support for a restrictive policy toward enhancement: we should restrict the use of enhancers in order to prevent students from being tricked or seduced into thinking enhancement really could promote their critical thinking skills. Such a policy would smack of paternalism, but it might (barely) be justifiable in the educational setting (since paternalism seems slightly more acceptable in such a setting).

I’ll have to leave it there for now. I’ve strayed well beyond the confines of Schermer’s original article at this stage. Indeed, I’ve wandered into some territory that I myself am currently trying to map out. I hope to have a more fulsome presentation of my views ready by the end of January. For now, I hope you’ve enjoyed this brief discussion of the ethics of enhancement in both the sporting and educational contexts.

Schermer on Enhancement and Cheating (Part One)

2011-12-23T22:24:00.001Z

Maartje Schermer is an ethicist based in the Netherlands. I met her at a workshop on the ethics of deep brain stimulation in Warsaw about a year ago, I recall talking to her about the Dutch euthanasia system, among other things.

A couple of years back she wrote a paper entitled ‘On the Argument that Enhancement is “Cheating”’ in the Journal of Medical Ethics. This paper happens to be relevant to a line of research that I’m currently pursuing, so I want to go through its contents over the next couple of blog posts.

As might be guessed from the title, the paper examines the popular claim that the use of certain performance enhancing technologies (be they chemical or electrical in nature) is an illegitimate breach of the “rules” of certain disciplines. In her paper, Schermer considers the force of this “cheating” argument in relation to both sports and education.

In this first post I look primarily at what she has to say about sports; in the next post I’ll turn to consider education. At the outset, I want to explain why I’m interested in this topic. I’ve done this before, but reviewing the reason here might help to remind both my readers and, perhaps more importantly, myself.

1. Sports and Education: The Analogical Argument
My goal is to write a paper that, in part, offers a fairly detailed assessment of the following analogical argument:

(1) We ought to restrict the use of (some) enhancement technologies in (some) sporting contests.

(2) (Some) Educational assessments are like these sporting contests, in all important respects.

(3) Therefore, (probably) we ought to restrict the use of (some) enhancement technologies in (some) educational assessments too.

Those who remember my earlier post on this topic, or who clicked on the link provided above, will notice that two significant changes have been made since my last attempt to formalise this argument.

For starters, the focus of the argument has shifted from being about the moral wrongness (or rightness) of enhancement itself, to being about the obligatoriness of restrictive policies. This shift in focus was just to bring the argument more in line with my own research interest, which has to do with the appropriate regulatory framework within universities.

In addition to this, a number of qualifiers have now been added to the argument. This is because my previous attempt at formalising the argument was considerably more absolutist than I intended. I think it’s pretty obvious that no argument which purports to condemn all forms of enhancement in either the sporting or educational context can succeed. The main reason for this is that sports and education seem to be aimed at encouraging particular kinds of enhancement.

Before moving on to look at Schermer's article in more depth, I want to say at the outset that, as of now, I have no particular dog in this fight. I’m only interested in exploring the potential persuasiveness of the analogical argument outlined above; I’m not interested in defending or opposing it. To put it another way, I’m not religiously opposed to the very idea of human enhancement (far from it), but nor am I religiously in favour of all forms of human enhancement either. I just want to see what kinds of arguments can be made about this issue, and I want to see whether these arguments are any good.

Since the remainder of this post is going to focus on what Schermer has to say about enhancement in the sporting context, the discussion can be viewed as an examination of the arguments for and against premise (1) of the analogical argument.

2. The Cheating Argument in Sports
Schermer’s article starts with the observation that many people invoke the idea that enhancement technologies are a form of “cheating” when trying to condemn their use. In both sport and education, the use of enhancers is usually seen as an attempt to bypass the hard work and effort that we like to associate with sporting and educational prowess.

There’s probably some kind of quasi-formal reasoning lurking behind this common objection, but to unearth it we will first need to define what cheating is. Schermer suggests the following definition:

Cheating: This is the violation of an internal rule of some competitive practice in order to gain an unfair advantage over one’s competitors.

Obviously, this is a value-laden definition: to say something is an “unfair advantage” is to say that it is morally objectionable. So if it is true to say that cheating is the violation of a rule in order to gain an unfair advantage, then it is true to say that cheating is morally wrong. Whether it is really true to say this is another question. I, for one, see no reason to object to Schermer’s definition: even if there are other uses of the “cheating” terminology out there, we can simply accept it as a stipulative definition for the purposes of this discussion.

In any event, taking this definition onboard, we can formulate the following argument against the use of enhancers in sport (and in support of premise (1) of the analogical argument). Call this the Enhancement-is-Cheating-Argument (ECA for short).

(4) We ought to prevent people from violating the internal rules of a sporting contest in order to gain an unfair advantage over their competitors.

(5) The use of enhancers amounts to a violation of the internal rules of sporting contests in order to gain an unfair advantage.

(6) Therefore, we ought to prevent people from using enhancers in sporting contests.

The first premise of this argument (4) is relatively unobjectionable. If anything is wrong in sports it is the violation of the rules. I think this is for two simple reasons. First, those who participate in sporting contests agree (consent) to be bound by those rules. And second, the rules of the sporting contest usually delimit a certain set of human excellences that the contest is designed to promote: anyone who breaches those rules defeats the purpose of the activity. This second reason is particularly interesting and is one to which we shall return.

The second premise of this argument (5) is where the objections are typically targetted. As Schermer makes clear in her article, it is not at all clear that the use of enhancers do violate the internal rules of all sporting contests. For example, I’m no historian of sport, but there was probably a time when the use of performance-enhancing drugs was allowed in cycling (I’m pretty sure I read this somewhere). This was presumably because until those drugs were developed, the relevant sporting authorities never thought to have an explicit rule banning competitors from using them. It was only after they became aware of the problems created by those drugs that they banned them.

All of this leads Schermer to make a simple point: the ECA is easily overcome by changing the rules of the sport. Thus, if the use of performance-enhancing drugs is a violation of some rule, change the rule so that it no longer is, and the ECA disappears. Problem solved. Objection overcome.

This solution — that of changing the rules so that the use of enhancers no longer constitutes a form of cheating — works fine if we view the rules of the sport as being more or less arbitrary constraints. For example, if we thought that the rules merely served to make contests more entertaining (i.e. if entertainment were the primary goal of sport), then altering the rules so that enhancers are permissible within that contest would not be a problem. After all, if all competitors are enhanced (or, at least, have access to enhancement), the entertainment value of the contest is likely to be preserved.

But there’s a serious problem here: the rules of sporting contests are probably not best thought of as arbitrary constraints. As I pointed out above, they are more likely to delimit a certain set of human excellences that the contest is designed to promote. This leads us to a different objection to the use of enhancement in sport.

3. The Constitutive Rules/Human Excellences Argument
Let’s start by differentiating between two kinds of rules: (i) the regulative and (ii) the constitutive. This distinction comes from the work of John Searle (who seems to be cropping up quite a bit on the blog recently). The two kinds of rules can be defined as follows:

Regulative Rules: These are rules that place restrictions upon pre-existing activities (i.e. activities that pre-date the rules). An example might be the rules of driving. Driving is an activity that does not need rules in order to be properly performed, but it might need rules in order to be safely performed.

Canonical Form: Activity of type X, ought to be performed in manner Y.

Constitutive Rules: These are rules that help to constitute or define a particular kind of activity (i.e. the activity cannot exist apart from the rules). An example might be the game of chess. Chess is an activity that does require rules in order to be properly performed. If you started moving your knight in diagonals, or if you allowed pawns to move like rooks, then not only would you be breaking the rules of chess, you would be playing something that did not really constitute chess at all.

Canonical Form: In context C, doing X counts as doing Y.

You can probably see where this is going: we’re going to present an argument against enhancers based on the idea that their use amounts to a breach of a constitutive rule. However before we do that, we have to make one further conceptual clarification. This is one I take from a recent paper by David Lauer (who in turn takes it from John Haugeland). The clarification arises from a common objection to normative arguments based on constitutive rules, so let’s look at that objection first.

The objection runs something like this: It makes sense to make normative arguments that are based on regulative rules. This is because regulative rules tell us how an activity — whose existence is logically independent of the regulative rules — ought to be performed. To return to the driving example for a moment, it is logically possible to drive your car whilst under the influence of an intoxicant, but this would a normatively worrisome way to drive. Hence, driving whilst under the influence is banned by the regulative rules of driving. In contrast to this, it does not make sense to make normative arguments that are based on constitutive rules. This is because constitutive rules don’t tell us how a particular activity ought to be performed, they tell us that a particular activity must be performed in order for it to count as an instance of Y. To use the chess example, to start moving pawns in diagonals like bishops doesn’t simply amount to a normatively inferior form of chess, it amounts to playing something other than chess. Thus, constitutive rules tell us what something is, not what it ought to be. These rules are descriptive classifications, not normative prescriptions.

In his recent paper, “Anti-Normativism and the Fraud with ‘Ought’”, David Lauer challenges this line of argument. In my opinion, his challenge is pretty compelling but I don’t wish to repeat it here since his paper is currently only in draft form. However, I do wish to make use of the conceptual distinction he uses to make his counter argument. This conceptual distinction is based on the idea that there are actually two types of constitutive rule:

Constitutive Standards: These are constitutive rules that tell us which conditions an antecedently intelligible X has to satisfy in order to count as a Y. For example, moving carved pieces of wood around a check-patterned board counts as chess, if the movements correspond to the rules of chess. In this form, the constitutive rules are purely descriptive, not normative.

Constitutive Regulations: These are constitutive rules that remind us how an already intelligible Y ought to be done in order to count as a good instance of Y. For example, boxing without landing any punches below the beltline, or running the hundred metre sprint without a false start. In this form, the constitutive rule is not purely descriptive, it is normative too.

Lauer goes on to clarify that these two types of constitutive rule correspond with the different perspectives one can take on any constituted phenomenon: that of the external observer and that of the engaged participant. From the perspective of the external observer, it will always be possible to view that activity in a normatively neutral fashion; from the perspective of the engaged participant, it will be difficult to avoid normative evaluation of the activity. He goes on to argue that for certain human activities (language is the example at the heart of his paper) it is impossible to take the external perspective.

Now that we have Lauer’s conceptual clarification in place, we can begin to make an argument against the use of enhancers in sport. As you can imagine, the idea is that sporting contests involve activities that are governed by constitutive regulations (not standards!). After all, swimming, running, cycling, rowing, jumping (etc.) are all activities that are intelligible apart from the rules governing their competitive forms, but those rules do add something to the picture: they specify the precise form those activities have to take in order for them to count in the competitive context. And that competitive context does something too: it gives us a space in which a set of human excellences (in this case, all relating to athletic prowess) can be promoted and socially celebrated.

If we accept these points, then the following argument might seem compelling:

(7) We ought to prevent people from breaching the constitutive regulations of a sporting contest.

(8) The use of enhancers is a breach of the constitutive regulations of sporting contests.

(9) Therefore, we ought to prevent people from taking enhancers when they participate in sporting contests.

As you can see, this argument is very similar to the ECA. The main difference is that we can offer a slightly more persuasive defence of the first premise of the argument (7) this time round. That defence would be based on the preceding discussion about the normative role of constitutive regulations and the fact that athletic prowess is a type of human excellence. It would, of course, be open to someone to reject the value of athletic prowess, but nevertheless I feel we are on more solid ground here than we were with the ECA.

That leaves premise (8) as probably the weakest link in the chain. While it is clear that the use of some forms of enhancement would amount to breaches of the constitutive rules, this is not always obvious. For example, someone who wears rollerblades (a foot enhancement) during the 100 metre sprint is clearly breaching that constitutive regulations of that contest, but how about someone who takes steriods? I’m sure most people would be inclined to say “yes” in response to this, but that answer is not immediately compelling. Further work needs to be done to spell out exactly how the use of steriods is a breach of the constitutive regulations of sprinting.

I suspect part of the problem here is a failure to be clear about the type of human excellence that the 100m sprint is designed to promote. If we could get clearer about this, then this kind of objection might evaporate.

Anyway, I shall leave it there for the time being. As we have seen from this entry, there is little reason to accept the enhancement-is-cheating argument (ECA), but there may be some reason to accept the enhancement-breaches-the-constitutive-regulations-argument (EBCRA). What we need to do now i see whether the EBCRA can apply to the educational context as well as the sporting context. We'll look at that issue (rather more briefly) in part two.

Schieber's Objection to the Kalam Argument

2011-12-14T12:19:00.002Z

Okay, I’ve been correcting student papers for far too long now. The time has come to peer above the parapet and write some sort of blog post. Nothing too laborious today, I’m afraid. Just a quick attempt to formalise an objection to William Lane Craig’s Kalam Argument that I recently heard (where “recently” = about a month ago) on the Reasonable Doubts podcast.

The objection in question came from the presenter Justin Schieber (I think that’s how you spell it anyway) and was based on a series of questions and objections he put to Craig on the Unbelievable podcast (hosted by Justin Brierly). The full exchange was set out in Episode 92 of the Reasonable Doubts podcast pretty quickly, and on a first listen I wasn’t sure if it was particularly interesting. I became slightly more convinced of it merits on a second listen, and I decided to write up this blog post in order to see whether there is anything to it. After all, one only really understands something when one tries to explain it to others.

I’ll break the discussion here up into four sections. In the first section, I will briefly outline Craig’s argument (I apologise in advance for this), focusing on the oft-neglected second stage where he defends the personal nature of the cause of the universe. In the second section, I will discuss Schieber’s initial objection to this argument — the one that was actually put to Craig on the Unbelievable podcast. In the third section, I will present Craig’s response to Schieber’s objection. And, finally, in the fourth section, I will attempt to formalise Schieber’s response to Craig’s response. As far as I am aware, this fourth section brings us up to date with the current state of the dialectic.

To reiterate: my goal here is to see whether — through a reasonably careful formalisation — there is anything to Schieber’s objection. Comments from readers would be welcome on this.

1. The Kalam and Personal Causes
I appreciate this will be quite tedious for those who are already familiar with the argument, but to make sure we all start off from the same point, here is the basic version of Craig’s Kalam argument:

(1) Whatever begins to exist has a cause of its existence.

(2) The universe began to exist.

(3) Therefore, the universe has a cause of its existence.

Craig usually defends premise (1) by appeals to incredulity — e.g imagine if a tiger just popped into existence without a cause? — or by appeals to intuitively compelling metaphysical principles such as ex nihilo nihil fit. I looked at some of Wes Morriston’s objections to these defences on another occasion.

Craig defends premise (2) with at least four different arguments. Two of which are a priori and based on paradoxes that would arise if the set of past events was actually infinite; and two of which are a posteriori and based on aspects of contemporary physics (namely, Big Bang theory and the second law of thermodynamics). Craig’s defence of this principle is certainly complex and, one has to say, philosophically impressive. Still, there are plenty of replies to his arguments in the philosophical literature some of which are equally impressive (e.g. those found in the work of Graham Oppy or Quentin Smith).

Premise (3) follows logically from the conjunction of (1) and (2). The problem for Craig — or, rather, the problem that we will be considering today — is that (3) does not provide support for the existence of God. If we left the Kalam at (3), the most we could say is that there has to be some cause for the existence of the universe; but we couldn’t say whether that cause is divine or non-divine. The Kalam needs a second stage.

Despite his usual penchant for formal arguments, Craig doesn’t seem to ever present a formal argument for a divine cause. In the 3rd Edition of Reasonable Faith he simply says that: “conceptual analysis of what it means to be a cause of the universe then aims to establish some of the theologically significant properties of this being [the first causer]” (p. 111). Nevertheless, I think it is possible to formalise Craig’s second stage argument as a series of (hopefully exhaustive) disjunctive syllogisms. In other words, Craig defines the theoretical space in which possible causes of the universe will be found; he identifies the main contenders within this space; and then starts eliminating contenders on various grounds until all but the theologically significant contenders are left standing.

For our purposes, the theoretical space of possible causes is defined by one key property: non-temporality (or eternality). In other words, all putative causes of the universe must, at a minimum, be non-temporal. This is for two reasons: (i) because Craig’s defence of premise (2) of the Kalam explicitly rules out the possibility of an infinite regress of temporal events and (ii) because the goal of the argument is to find the cause that kicked off the actual temporal sequence of events in the universe.

The main contenders within this theoretical space can then be reduced to two: (a) a non-temporal impersonal cause and (b) a non-temporal personal cause. If the cause is personal, then it is theologically significant since that is typically thought to be a key property of God. But further argumentation would be then needed to show that this personal cause has the other properties associated with God (e.g. omnibenevolence). That is something that the Kalam, by itself, cannot do.

Anyway, with all this in mind, we can offer the following as a formalisation of the second stage of the Kalam argument:

(4) The cause of the universe could either be a non-temporal impersonal cause or a non-temporal personal cause.

(5) The cause of the universe cannot be a non-temporal impersonal cause.

(6) Therefore, the cause of the universe is a non-temporal personal cause.

Premise (5) is the key here. Craig supports this with the idea that impersonal causes are always sufficient to produce their effects. In other words, if the cause is present, so too must the effect be present. This is supposed to create a problem since it would mean that if the cause is eternal, so too must the effect be eternal. But since it is a key part of Craig’s argument that the universe is not eternal, the cause cannot therefore be impersonal.

There are some problems with this argument. Not least of which is the fact that it tends to confuse true eternity (non-temporality) with beginningless and endless duration. These problems are covered by Wes Morriston in his article “Must the Beginning of the Universe Have a Personal Cause?”, which I discussed on commonsenseatheism over a year ago. (Side note: It does slightly beggar belief that Morriston is not mentioned in Craig’s Reasonable Faith).

2. Schieber’s Initial Objection
In the question that he put to Craig on the Unbelievable podcast, Schieber presented a direct challenge to the second stage of Craig’s argument. The challenge is not directed at Craig’s defence of premise (5) but, rather, at the very concept of a non-temporal personal cause. Since this is the case, we’ll construe this as an objection to premise (4) (since premise (4) is supposed to accurately describe the space of possible causes, and since Schieber’s argument is that one of the proposed causes within that space could not possibly exist).

This objection derives its force from an analysis of what it means to be a personal cause. Schieber argues that persons cause events — events such as the beginning of the universe — through intentional action. I suspect this is a familiar notion to most readers, but perhaps a few clarificatory words are in order. Intentionality is the so-called “mark of the mental”. An intentional state, such as a belief, desire or intention, is something with the property of “aboutness”. To follow Searle’s analysis, all intentional states will have a direction of fit and a direction of causation.

Let’s use the example of a intention to illustrate what this means — this will be useful since intentions are crucial to the whole dialectic between Craig and Schieber. Suppose I intend to eat an apple. My intention has a world-to-mind direction of fit: in order for my intention to be satisfied, the conditions in the world must change in such a way that I consume and digest the apple. But my intention has a mind-to-world direction of causation: the mental state causes those changes to be brought about in the world outside the mind.

See the table below for a more complete taxonomy of intentional states with their associated directions of fit and causation.

Now we come to the crux of it. Schieber argues that in order for a person to cause an event to occur, they must first intend for this event to occur. And in order for them to do this, their intention must temporally precede the changes that are brought about in the world. This further implies that in order for there to be intentions, there must be a temporal framework in place (i.e. a sequence of moments that succeed one another). But if this a necessary condition of intention, then there cannot be a non-temporal personal cause of any event.

To summarise:

(7) Personal beings cause events via intentions.

(8) In order for an intention to cause an event, that intention must temporally precede the event.

(9) If something temporally precedes/succeeds another thing, then there must be a temporal realm (obvious, but worth stating explicitly).

(10) Therefore, personal causes cannot be non-temporal (from 7, 8, and 9).

If successful, this argument would defeat premise (4) of the extended Kalam.

Regular followers of Craig’s work can probably guess how he will respond to this. True to form, he doesn’t disappoint when asked to respond on the Unbelievable podcast. But this response leads Schieber to formulate an altogether more interesting version of his objection. Let’s see how all this plays out.

3. Craig’s Response
As I say, those who follow Craig’s work on the Kalam will be able to guess his response. For years now, Craig has been harping on about the distinction between “causal priority” and “temporal priority”, as well as the possibility of timeless eternal intentions. Combining these two notions, Craig can say that God’s intention to create the universe may have existed eternally and may have causally preceded rather than temporally preceded the beginning of the universe.

In the course of the podcast, Craig explains what he means by way of a thought experiment:

The Cliff-Hanger: Picture, if you will, a man who is hanging off the side of a cliff. To prevent his descent into oblivion, he grabs hold of a tree branch. He does so by intending to hold onto the tree branch. But here the intention is simultaneous with, rather than temporally prior, to the actual act of holding onto the branch.

This thought experiment reveals a flaw in premise (8) of Schieber’s objection. This premise states that in order for an intention to cause an event, the intention must temporally precede the event in question. But as the Cliff-Hanger example reveals, this need not always be the case: sometimes, intentions can be simultaneous with the events that they cause. Thus, we have to acknowledge the following rebutting premise:

(11) Intentions can be simultaneous with the events that they cause; they need not always temporally precede them.

Furthermore, as Craig goes on to make clear, even if the intention is simultaneous with the event that it causes, this does not mean that it is not *causally* or *explanatorily* prior to the event: the man’s intention to hold onto the tree-branch is what explains his holding onto the tree branch, not the other way around. I see this as a “the dog wags the tail, the tail doesn’t wag the dog”-kind of point.

Two observations are worthwhile before moving on. First, Craig’s response is, I think, well-made. Indeed, it exploits a distinction that Searle and others makes in their analysis of intentions, namely: the distinction between prior intentions and intentions-in-action. The former must temporally precede the act; the latter must coincide with and sustain the performance of the act. I’ll use this distinction in the remainder of the discussion. Second, even if the response is well-made, I’m not sure how far it gets us: simultaneity is still a temporal relation and God is supposed to be non-temporal. Perhaps Craig thinks that along as any sort of chink is opened up to the possibility of intentions that are not prior to action, he has given the concept of an eternal intention some plausibility, but I’m not convinced. I think this raises more problems. I’ll try to return to this at the end.

4. Schieber’s Response to Craig’s Response
Taking Craig’s criticism onboard, Schieber refines his original argument. The refinement accepts that there are two kinds of intention — prior intentions and intentions-in-action — but adds further complexity to our understanding of intentions by focusing on two different kinds of intentional content. They are:

Intentions that Change a State of Affairs: These are intentions whose content specifies that, in order for them to be satisfied, the present state of affairs must be altered in one or more ways. To use the vocabulary introduced earlier, the world must be changed in order to fit with the content of the intention.

Intentions that Maintain a State of Affairs: These are intentions whose content specifies that, in order for them to be satisfied, the present state of affairs must remain the same. To use the vocabulary introduced earlier, the world must stay the same in order to fit with the content of the intention.

Scheeber’s claim is that while intentions to maintain a state of affairs can be simultaneous with their effects, intentions to change a state of affairs must precede their effects.

This then raises the obvious question: what kind of intention was God’s intention to create the universe have? What kind of content did it have? Surely it would have to be an intention to change a state of affairs, not an intention to maintain a state of affairs. After all, “prior” to the universe existing, God was the only thing in existence; “after” the universe began to exist, there were at least two things in existence. Thus, there must have been some change in the state of affairs. So if there was a change in the state of affairs, this change must have a cause, and this cause must be personal, then there must have been a prior intention.

In other words:

(12) Persons can cause events via two kinds of intention: (i) intentions that change states of affairs; and (ii) intentions that maintain states of affairs.

(13) Intentions to change a state of affairs must be temporally prior to the changes they bring about; intentions to maintain a state of affairs can simultaneous with the states of affairs they maintain.

(14) An intention that caused the universe to begin must have been an intention to change a state of affairs.

(15) Therefore, an intention that caused the universe to begin needed to be temporally prior to the beginning of the universe.

But, of course, according to the Kalam argument the cause of the universe must be non-temporal, so Schieber’s original objection to the Kalam will then go through, i.e.

(16) Therefore, a personal cause of the universe cannot be non-temporal.

This is illustrated in the diagram below.

5. Conclusion
I’m pretty much done. I hope this post has been informative to those of you who have made it this far. It’s certainly helped me to clarify a few points in my own mind. I’m still not sure whether Schieber’s argument is a good one — and I’m still trying to imagine how Craig might respond to it (suggestions below please). Nevertheless, I do have two concluding observations that might stimulate some conversation, even if they don’t address all significant points arising from the preceding dialectic.

First up, there is this whole issue of intentionality and intentional states. Most analyses of intentional states — such as Searle’s — assume that there is a mental world and an external world. Indeed, this duality is what makes sense of the directions of fit and directions of causation proposed by Searle. This is not to say that intentional states are impossible unless they connect to an external world — I can imagine, for example, intending to change my beliefs about something — but it’s always difficult to grasp what an intentional state could be about unless at some point it joins up with the external world. This creates problems in our analysis of God’s creative act. Can we meaningfully talk about God’s intentional states as if they were similar to our own? This might also be thought to open up a potential challenge to Schieber’s refined objection since it still relies an analogies with our own intentions. But there’s something for the theist to worry about here too. Indeed, Schieber actually takes advantage of something like this in another argument he makes about God’s existence: we typically have intentions and desires because there are things in the external world that displease us and that we would like to change; but God is supposedly perfect; so when he exists on his own — as he must “prior” to the existence of the universe — he could not possible have desires and intentions like ours. So it’s difficult to understand why he would create a universe at all. (It also seems to me that divine simplicity would pose problems for divine intentionality).

Second, there is the whole issue of time and eternity. The more I’m forced to think about eternal persons (which, admittedly, isn’t very often), the more confused I become. It seems to be an incredibly difficult conceptual feat to make any sense of eternal minds or eternal intentional states. You could see this in my discussion of God’s creative act which made use of temporal words like “priority” and “before” even after I had accepted that God’s intentions must be non-temporal. Craig likes to object to an infinite regress of past events on the grounds that accepting such a possibility comes at the theoretical cost of accepting numerous paradoxes. But I’m not so sure that accepting the possibility of non-temporal persons comes at an even larger theoretical cost (I’m also not sure that all paradoxes are theoretically costly).

Anyway, I shall leave it there.

Two Year Anniversary

2011-12-09T07:00:00.003Z

As of today, Philosophical Disquisitions is two years old. When I started back in December 2009, I never really imagined that I'd keep it up for this long.

EDIT: Thank you to everybody who reads and comments on this blog. Although I may not always find the time to respond to what you say, your support and feedback is one of the things that keeps me going.

Taking Responsibility vs. Being Morally Responsible

2011-12-04T12:46:00.001Z

Dennett - Taking Responsibility is Good

Oh Joy, Oh Rapture! It looks like I’ll be preoccupied with marking student assignments for the next couple of weeks. This, naturally, means less time for blogging. But before I snuggle up and hibernate with these assignments, I thought I’d do a quick blog post. Once again I’ll focus on a portion of Bruce Waller’s book Against Moral Responsibility.

To be precise, I’ll focus on a portion of chapter 6 of the book, which discusses the distinction between taking responsibility and being morally responsible. In the chapter itself, Waller defends two important claims: (i) that if one takes responsibility for a particular outcome it does not follow that one is morally responsible for that outcome; and (ii) although we should encourage people to take responsibility for things, we will undermine this project if we conflate taking responsibility with being responsible. In this post, I’ll be focusing on the first of those claims, not on the second.

I’ll break my discussion down into three sections. First, I’ll try to explain what it means to take responsibility for something. Second, I’ll try to show why some philosophers think the concept of taking responsibility is important. And third, I’ll present what I think is Waller’s argument for treating take-charge responsibility separately from moral responsibility, and pass some brief comments on it.

1. Taking Responsibility for Something
One takes responsibility for a particular outcome, whenever one accepts the burden associated with achieving or preventing that outcome. To use one of Waller’s examples, suppose your work colleagues think that organising a conference would be a good idea. Suppose that you agree and say you will “take responsibility” for its organisation.

What does this impy? Well, one thing it would seem to imply is that you are willing to do the required organisational work, and, further, that you accept accountability for the eventual success or failure of the conference. It would also imply a certain emotional connection with outcome. If you take responsibility for the conference you will tend to feel pride and satisfaction if it is successful, and disappointment if it is a failure: the outcome will become an important part of how you self-evaluate.

In other words:

Taking Responsibility An agent, S, takes responsibility for an outcome O, whenever they are: (a) willing to do the work required to achieving or prevent that outcome; (b) willing to be accountable for the success or failure of that outcome; and (c self-identify with that outcome.

This is just my own rough formulation of the concept. I’m not entirely sure whether all three of the conditions (a-c) would need to be met before we would say that S had taken responsibility for O, or whether one or two conditions would be enough. I’ve also left out the idea that one must publicly declare that one has taken responsibility before the concept holds. Although the idea of a public declaration does feature in some discussions of taking responsibility, I’m not sure that it’s strictly necessary. Perhaps what is needed is a dispositional willingness to publicly declare if and when one is asked? If so, that might already be covered (implicitly) by the accountability condition.

2. Why Should we Care about Taking Responsibility?
Anyway, enough of this philosophical hand-wringing. Why is the concept of taking responsibility so important? There are a number of reasons, but one of the main ones is that several philosophers — Waller mentions Harry Frankfurt, Daniel Dennett, and Robert Kane — have argued that it plays an important part in how we ascribe moral responsibility. Of the three mentioned, I’m most familiar with the work of Dennett. This is fortunate since Dennett is also the major focus of Waller’s energies.

Dennett seems to be believe that if an agent takes responsibility for an outcome, then the agent is also morally responsible for that outcome. Since we’ve been looking at responsibility principles in quite some detail recently, let’s put Dennett’s claim in the form of such a principle:

The Take-Charge Principle of Responsibility: If an agent S takes responsibility for an outcome O, then S is morally responsible for O.

Let’s take a moment here to reflect on the nature of this principle. It is clearly suggesting that there is an entailment relation between taking responsibility for something and moral responsibility for that same thing. But what kind of entailment is this? The answer, it seems, is that the entailment relation is one of sufficiency, but not one of necessity. In other words, while taking responsibility for an outcome will entail moral responsibility, other conditions might also entail moral responsibility. For example, if the agent is an uncaused causer of the outcome; or if the action is caused by the second-order reflective desires of the agent. As it happens, Dennett doesn’t accept these other conditions, but this is irrelevant.

You may well ask: why would an agent take responsibility for an outcome, if in doing so they would open themselves up to moral reponsibility for that outcome? After all, moral responsibility includes blame and punishment, both of which are unpleasant. Why would anyone want this? One reason is that taking responsibility seems to bring with it certain psychological benefits. This is something Waller agrees with: he points to psychological studies showing that those who take responsibility are more likely to be satisfied at work and less likely to suffer from depression (I haven’t read the studies to which he refers so I can’t confirm). Indeed, Waller seems quite enthusiastic about taking responsibility for things. He just disagrees with Dennett that taking responsibility entails moral responsibility. Let’s see why.

3. The Crucial Difference Between Moral Responsibility and Taking Responsibility
Waller presents his disagreement through a series of (quick) thought experiments. The thought experiments are — as Dennett would say — designed to pump our intuitions about the ascription of moral responsibility. I’ll just look at one of these thought experiments. This one builds upon the conference organisation example we’ve already been working with:

Conference Organisation: As agreed with your colleagues in advance, you have taken responsibility for the organisation of a conference on moral responsibility. You’ve booked the venue, invited the keynote speakers, they’ve agreed to come and transport has been arranged for each of them. Everything appears to be going well. Alas, on the actual day of the conference, tragedy strikes. A huge snowstorm arrives which prevents any of the invited speakers from arriving. The conference has to be cancelled.

In this particular case, you have taken responsibility for the success or failure of the conference. Does it therefore follow, as Dennett might have us believe, that you are morally responsible for its ultimate failure? Waller thinks the answer is clearly “no”. The intervention of the snowstorm would seem to block any such inference. This seems to suggest that taking responsibility is not a sufficient condition for moral responsibility. Even when an agent has taken responsibility for an outcome, additional conditions will need to be met before that agent will be deemed morally responsible.

This argument, like many in moral philosophy, assigns a fairly decisive weight to intuitive judgments about particular cases (see my post on Moore’s Justifying Retributivism for more on this). The argument would appear to take the following form:

(1) We are justified in accepting whichever moral conclusions are consistent with our intuitive judgments about particular cases.

(2) Our intuitive judgment about the Conference Organisation case is that taking responsibility is not a sufficient condition of moral responsibility.

(3) Therefore, taking responsibility is not a sufficient condition of moral responsibility (from 1 and 2).

(4) The Take Charge Principle of Responsibility states that taking responsibility is a sufficient condition of moral responsibility.

(5) Therefore, the Take Charge principle is false (from 4 and 5).

Let me close with some brief reflections on this argument. While I think it is plausible, I think its plausibility trades on some questionable assumptions and ambiguities. As regards the questionable assumptions, while I am willing to assign intuitive judgments about particular cases some weight in assessing moral principles, I’m never quite sure how much weight I should assign to them. I guess this is something that plagues most moral philosophers. Perhaps I should look into it more closely but let me give me general feelings here: I feel like if I had some broadly agreeable moral principle (i.e. one that seemed to apply to a large tract of my moral life), and if that principle were consistent with my other beliefs but also entailed Dennett’s take charge principle, I would be reluctant to get rid of it because of one counterexample.

As regards the ambiguities, I think that the intuitive belief that moral responsibility would be unjustified in the Conference Organisation case depends, to a large extent, on the implications of holding someone morally responsible. In other words, it depends on the precise liability conditions that attach to the morally responsible agents. We haven’t specified those conditions here. If our theory of punishment involves the infliction of severe harm, or if our theory is crucially dependent on the concept of moral desert, then Waller’s argument is plausible. But if our theory of punishment does not involve these things — for instance if it is based on restitution, not retribution — then I’m not entirely sure.

Anyway, something to think about.

Waller's Argument Against Moral Responsibility (Part Two)

2011-11-25T21:11:00.000Z

(Part One)

This is the second part of a brief series of posts on Bruce Waller’s recent book Against Moral Responsibility. The book as whole presents a detailed case against the concept of moral responsibility. My series of posts is focusing on the basic argument at the heart of that more detailed case. This basic argument is found in chapter one of Waller’s book.

In part one, I followed Waller by examining the debate between Galen Strawson and Alfred Mele on the possibility of moral responsibility. As we saw, Strawson argues against moral responsibility on the basis of the causa sui principle (an agent is responsible for their actions if and only if they are a causa sui); Mele argues in favour of moral responsibility on the basis of the intentional self modification (ISM) principle of responsibility (an agent is responsible for their actions if they intentionally self modified themselves to have a certain set of character traits). The problem was that both principles have intuitive support and there’s little basis for choosing one over the other.

Waller enters the debate at this point with his own argument against moral responsibility. As I said the last time, his argument works from yet another intuitive principle. This might seem like an inauspicious place to work from since if we accept it, instead of having to decide between two intuitively supported principles, we’d now have to decide between three. But this is not necessarily true. If Waller’s principle is, in some sense, more compelling, or more ethically basic than either that of Strawson or Mele, then he might be able to win the day. In the remainder of this post, we’ll try to see whether or not this is the case.

1. The Strange Case of Benji and Betty
Like Mele, Waller develops his arguments through some elaborate thought experiments. He presents two such thought experiments in the course of chapter 1, each of which asks us to consider the differing fates of two individuals. In the first thought experiment, we consider two people, one of whom acquiesces to a racist policy and the other of whom protests a racist policy. We are then asked whether or not we should reward the protester and blame the acquiescer. In the second thought experiment, we consider the fates of Benji and Betty, one whom is a cognitive miser and the other of whom is a chronic cogniser (terms that will be explained).

In the interests of brevity, I’m going to combine elements from both thought experiments and ask you to consider the strange fates of both Benji and Betty. Now, as it happens, we were introduced to Betty in part one. She was the main character in Mele’s thought experiment on intentional self modification. We shall repeat her story here, but also include a latter passage from her life.

The Strange Case of Betty: Betty is a six-year-old girl who is afraid of the basement in her house. She knows that no harm has come to anyone, including herself, who has entered the basement. But she is still afraid. Nevertheless, she recognises that her fear is “babyish” and takes steps to overcome come it. She starts to make periodic visits to the basement, staying slightly longer each time until she no longer feels afraid. After following this method for a few months, she loses her irrational fear.

This ability to intentionally self modify parts of her character comes in handy throughout Betty’s life. She uses it to develop sound and effective study habits, work practices and, most importantly, moral character. Later in life when she is working on a university hiring committee she is asks to acquiesce in a racist hiring decisions. She refuses, sticking to her strengthened moral principles.

Question: Should we reward Betty for this courageous decision?

As Waller puts it, Betty is a chronic cogniser, i.e. someone who takes pleasure in thinking and engaging in extended deliberation and decision-making. As a result, she has a strong sense of having an internal locus of control, of being the captain of her own fate.

Her life story must be contrasted with that of her brother, Benji. Unlike Betty, Benji is a cognitive miser, i.e. someone who does not enjoy thinking and deliberating, and who tends to act quickly and intuitively. As a result, he has a strong sense of having an external locus of control, of being swept along by events that are not of his making.

Let’s hear about his story now:

The Strange Case of Benji: Benji is a seven-old-boy who is, like his sister, afraid of the basement in his house. Like his sister, Benji recognises his fear as being “babyish” and would like to overcome it. However, unlike his sister, Benji has not been blessed with the innate cognitive skills that give him the motivation to undertake a program of intentional self-modification. He lets external events decide his fate for him, hoping that he will simply grow out of his fear.

His tendency toward cognitive miserliness does not stand him in good stead for the rest of his life. He drifts aimlessly from career to career, and engages in a number of habits he knows to be self-destructive (smoking, over-eating, drinking etc.). Later in life, when asked to acquiesce in a racist hiring decision at his new company, Benji simply “goes with the flow”, refusing to take a principled stance against it.

Question: Should we blame Benji for this cowardly decision?

For the time being, the questions about blaming and rewarding Betty and Benji will remain strictly rhetorical. Their importance will come to the surface when we look at Waller’s actual argument against moral responsibility. For now, I want to highlight three important features of these thought experiments.

First, and least important in terms of understanding the overall argument, there is the fact that the existence of cognitive misers and chronic cognisers is something that Waller backs up by reference to the psychological literature. In other words, these are not simply concepts that he plucks out of thin air, they seem to be genuine traits found amongst real people.

Second, there is the idea that the initial distribution of cognitive capacities and traits (i.e. the kinds of things that are essential to the decision-making process) are unequal: Benji and Betty were not equally blessed when it came to capacity for self-modification. They were victims of the natural lottery.

Third, there is the idea that one’s decisions early in life (such as Betty’s decision to self modify her fear) can create a positive feedback loop, and this can have a great impact on the rest of one’s life. Again, this is something that could be backed up by references to the psychological literature (e.g. the work on the marshmallow test).

2. Waller’s Argument from Unfairness
The last two points just mentioned — that the initial distribution of capacities is unequal and that early decisions can have profound effects on one’s future — form the backbone of Waller’s basic argument against moral responsibility. Instead of working from an intuitively compelling principle of responsibility (like Strawson and Mele), the argument actually works from a principle of fairness. It does so on the grounds that judgments of responsibility are used to justify differential outcomes (reward, punishment), and differential outcomes raises issues of fairness.

The argument itself can be stated with brevity, now that the thought experiments have been presented. It looks something like this (numbering builds upon part one):

(16) Differential outcomes for two (or more) persons can only be justified if they had equal opportunity to achieve those outcomes.

(17) If Betty is rewarded for opposing a racist decision and Benji is punished for agreeing to a racist decision, then they are experiencing differential outcomes.

(18) Therefore, if Betty is to be rewarded for opposing a racist decision and Benji to be punished for agreeing to a racist decision, they must have had equal opportunity to achieve those outcomes.

(19) Because the initial distribution of decision-making capacities and traits is unequal, and because this inequality has long-term implications, Betty and Benji did not have equal opportunities.

(20) Therefore, Betty and Benji cannot be rewarded and punished for what they did.

Now let’s talk about this for a minute. Notice that the argument is not explicitly about responsibility but is, instead, about reward and punishment. If I were being niggly, I might object to this on the grounds that there is a gap between responsibility and liability, but since judgments of responsibility and judgments of liability are so closely linked I’ll leave this complaint slide. I’ll accept that if Waller makes his case against liability, he has made his case against moral responsibility. After all, there wouldn’t be much to cheer about if there were a theory of responsibility that didn’t allow for liability.

Next, let’s consider the defence of the argument. Premise (16) is a principle of equality. It is defended by appeal to fundamentality of equality concerns in moral philosophy, particularly political moral philosophy. Apart from that, there’s really no deep support for equality of opportunity. It tends to be a primitive or unquestioned value in these kinds of debates. Premise (17) seems to be obviously true: if one person is rewarded and another is punished, then they are being treated differently. Premise (18) then follows. Premise (19) is justified by appeal to the thought experiments and the psychological literature that supported some of the ideas in those experiments. The conclusion then follows. Of course, the argument is specifically tailored to Betty and Benji but the idea would be that their cases are a fair representation of those of all people. So the argument is intended to be of general applicability.

Finally, let’s ask whether this argument is better than either Strawson’s or Mele’s. Again, this is difficult to say. Waller’s argument — like those of Strawson and Mele — is based on an intuitive principle. But is his principle more compelling than those used by Strawson and Mele? As it happens, I think it is. But I don’t if I can provide a strong justification for this. It just seems right to me to say that issues of distribution and fairness occupy a higher rung in the moral ladder than do issues of responsibility. Thus, I’m inclined to think Waller’s argument is better.

If you’re still reading, I’d be interested in hearing what you think. Comments below please.

Waller's Argument Against Moral Responsibility (Part One)

2011-11-24T14:51:00.000Z

I’ve just started to read Bruce Waller’s new book Against Moral Responsibility. As might be guessed from the title, the book is rejection of moral responsibility, written explicitly from a naturalistic viewpoint. Since I’ve only just started it, I can’t comment meaningfully on its overall success. I can say that I’ve enjoyed what I’ve read so far, although its slightly less formal in its style than I would have liked. I want to try to correct that problem in this post.

I do so by examining the basic argument that Waller offers in his first chapter. His basic argument (not to be confused with Galen Strawson’s Basic Argument which I’ll be talking about in a minute) focuses on the fairness of blame and reward, but he presents it in a two different ways: the first way by developing his own thought experiment, and the second way by jumping into a pre-existing debate between Galen Strawson and Alfred Mele. Although the first way is probably the simplest, I’m going to focus on the second way here. I do so largely because it allows me to cover some interesting arguments by leading figures in the field of moral responsibility.

In the remainder of this post, I will focus directly on the dialectic between Strawson and Mele. This requires first looking at Strawson’s Basic Argument against moral responsibility and then looking a Mele’s reply. In the next post, I’ll look at Waller’s contribution to the debate.

1. Strawson’s Not-so Basic Argument
Strawson’s basic argument against moral responsibility turns out not to be so basic. At least, not if basic means “simple” and “straightforward”. The problem is that there are several different versions of the basic argument floating around in the philosophical ether. Indeed, I have read one article in which Strawson outlines four different versions of the argument (it’s in the Oxford Handbook of Free Will, in case you’re interested). I’ve come across at least two other versions presented by Strawson in other articles, and Waller himself presents an abbreviated version in his book. This brings the total number of versions to at least seven (by my count). I’m going to limit myself to two versions of it here: (i) the regress version and (ii) the causa sui version.

The causa sui version of the argument really is quite simple and straightforward. It’s also the version I like the most, partly because it exposes a problem I have with the regress version. Given this, one might think it best to skip the regress version altogether, but we have to look at the regress version since it’s the one discussed by Mele and Waller. So I may as well explain my problem with it as I go along.

You can find a “cumbersome” presentation of the regress argument over the Information Philosopher website (LINK). I want to aim for something a little less cumbersome, so I’m going to try to reconstruct the argument from Waller’s summary of it. His summary is as follows:

If one is to be truly responsible for how one acts, one must be truly responsible for how one is, morally speaking. To be truly responsible for how one is, one must have chosen to be the way one is. But one cannot really be said to choose (in a conscious, reasoned fashion) the way one is unless one already has some principles of choice (preferences, values, ideals etc.) in the light of which one chooses how to be. But then, to be truly responsible for one’s having those principles of choice, one must have chosen them, in a reasoned conscious fashion. But that requires that one have principles of choice. And thus the regress. (pg. 29)

If you take the time out to compare this summary with the cumbersome version of the argument linked to above, I think you’ll find it to be quite fair, if highly compressed. In any event, one can see the attempt at a regress even in this compressed presentation: we start with a principle about responsibility for particular acts, we link responsibility for particular acts to one’s agency properties (character, mental states etc.) at the time of those acts, and we then link one’s responsibility for those agency properties to choices made at an earlier time. This need to link responsibility at one moment in time to responsibility at an earlier moment in time is recursive, i.e. it keeps needing to be re-inserted into the argument. Hence we get a regress.

My problem is that I’m not sure that the regress is that persuasive. Hopefully, I can explain this by constructing a more formal summary of what I think is the argument in the quoted passage. I acknowledge at the outset that I’m adding in some ideas to make the argument work. Perhaps that makes my summary unfair. If so, I apologise. But even if it is unfair, I trust it is of some value to those who, like me, are not persuaded by the regress argument at a first glance. Here’s my summary:

(1) If one is to be responsible for how one acts at time Tn, one must be responsible for how one is at Tn.

(2) To be responsible for how one is at Tn, one must have chosen to be the way one is Tn.

(3) Therefore, in order to be responsible for how one acts at Tn, one must have chosen to be the way one is at Tn.

(4) To be responsible for choosing to be the way one is Tn, one must be responsible for the principles of choice (preferences, values etc) that guide one’s agency-forming choices prior to Tn.

(5) Therefore, in order to be responsible for how one acts at Tn, one must be responsible for one’s principles of choice prior to Tn (from 3 and 4).

(6) To be responsible for one’s principles of choice prior to Tn, one must have chosen to have those principles of choice prior to Tn.

(7) Therefore, to be responsible for how one acts at Tn, one must have chosen to have one’s principles of choice prior to Tn.

And so on and so on and so on.

Here’s my problem: I don’t see how this pattern of reasoning can, in its present form, provide much of an argument against the concept of moral responsibility. In particular, I can’t see why a proponent of moral responsibility couldn’t just call a halt after the first step of the regress, (i.e. at (3)). In other words, I can’t see why they couldn’t just: (a) accept that to be responsible for how one acts at Tn, one must have chosen to be the way one is at Tn and (b) leave it at that. Why must they go on and accept that in order to be responsible for how one acts at Tn, one must also be responsible for the prior choices that lead to one being a particular way at Tn? (This is something Mele brings up, as we shall see in a moment)

It seems like in order for the preceding argument to be successful, we’d need to include an explicit “transfer principle” of responsibility. As follows:

Transfer Principle of Responsibility: An agent is responsible for causing an outcome, event or state of affairs at Tn, if and only if they were previously responsible for the outcomes, events and states of affairs that lead them to Tn.

I call this the transfer principle because it says that responsibility for particular acts at one moment in time must be transferred from responsibility at an earlier moment in time. I think this principle is needed to make the regress argument compelling and I think its truth is, at the very least, open to doubt.

As it happens, the transfer principle is (deliberately) similar to the causa sui principle which guides Strawson’s simplest version of his basic argument. We must define what a causa sui is first:

Causa Sui: An object, event or state of affairs that is the cause of its own existence

Then we can define the causa sui principle as follows:

Causa Sui Principle of Responsibility: An agent is responsible for their actions if and only if they are a causa sui (in a least some crucial mental respects).

Finally, this gives us the causa sui version of Strawson’s basic argument against moral responsibility:

(8) An agent is responsible for their actions if and only if they are a causa sui (in at least some crucial mental respects)

(9) No agent can be a causa sui (in crucial mental respects).

(10) Therefore, no agent can be responsible for their actions.

I trust you can see why I prefer this version of the argument: it’s simpler, more elegant and it makes clear the overarching principle of responsibility that is guiding the reasoning. That said, I’m not sure that this renders the regress argument a pointless distraction. On the contrary, something like the regress argument could be used to support the claim that no agent can be a causa sui (premise 9).

Anyway, this has been a long, and perhaps unnecessary exegesis of Strawson’s Basic Argument. Still, I hope it’s been mildly interesting. For present purposes, all we need to focus on are the transfer and causa sui principles of responsibility because it is these principles that Mele seems to object to in his work.

2. Mele’s Intentional Self-Modification
Mele seems to accept the idea that in order to be responsible for how one acts, one must be responsible for how one is at the time of action. But he takes exception to Strawson’s claim that in order to be responsible for how one is, one must have chosen to be that way. He thinks there are cases of intentional self-modification that allow an agent to be responsible for what they do, without involving an infinite regress of choices. He makes his case by first developing the following thought experiment:

The Case of Betty: Betty is a six-year-old girl who is afraid of the basement in her house. She knows that no harm has come to anyone, including herself, who has entered the basement. But she is still afraid. Nevertheless, she recognises that her fear is “babyish” and takes steps to overcome come it. She starts to make periodic visits to the basement, staying slightly longer each time until she no longer feels afraid. After following this method for a few months, she loses her irrational fear.

The thought experiment is interesting for two reasons. First, it shows how, working from a basic set of desires and preferences, Betty manages to intentionally self-modify her character in a significant way. This modification allows her to do things she was previously unable to do. For example, before undertaking the program of self-modification she might have run away from or avoided the basement; after undertaking the program she might be willing to stay in the basement or perform some household chores down there. Betty seems to have created a positive feedback loop between in her initial desire to be free of her “babyish” fear, and her plan to desensitise herself to the basement. The fact that human beings are able to do these kinds of things is significant

Second, the thought experiment pumps certain intuitions we have about responsibility. Mele acknowledges that Betty does not choose her original set of character traits — the traits that allowed her to self-modify — but he questions whether she needs to have done this in order to be a responsible agent. He thinks that, looking at the thought experiment closely, we will be inclined to view Betty’s self-modification as a responsible act (i.e. one for which she is responsible) and, furthermore, one which allows her to be responsible for future acts. He says we will think this unless we are presented with evidence suggesting she was brain-washed or coerced into the self-modification. The fact that she has not chosen to have the original set of character traits that allows her to do this will not enter into our considerations.

To me, this suggests that Mele (in this context at least — his more considered views on responsibility are not being addressed here) endorses the following principle of responsibility:

The Intentional Self-Modification Principle of Responsibility: An agent is responsible for being the kind of agent that they are at a particular moment in time, if they have intentionally self-modified their character traits up to that point in time. (I shall call this the ISM principle for short)

As is clear, this principle makes no allusion to concepts of regressive transference or causa sui. This principle can then be used to fashion the following counterargument to Strawson (this is my own construction, not that of Mele):

(11) If an agent is to be responsible for how they act at Tn, then they must be responsible for how they are at Tn (slight modification of (1), above).

(12) An agent is responsible for how they are at Tn, if they have intentionally self-modified their character traits up to Tn.

(13) Therefore, if an agent is to be responsible for how they act at Tn, they must have intentionally self-modified their character traits up to Tn.

(14) It is possible for an agent to intentionally self-modify their character traits (as illustrated by the Betty case).

(15) Therefore, it is possible for an agent to be responsible for their actions (from 13 and 14).

So there we have it, a direct objection to the causa sui version of Strawson’s argument. The dialectic between Mele and Strawson is illustrated in the argument map below.

Which side wins this particular debate? Unfortunately, there’s no easy way to tell. Both have presented valid arguments for their side, but both of those arguments rest on principles of responsibility that are, at best, intuitively supported. The question then becomes which principle do you find more intuitively compelling. Obviously, based on his thought experiment, Mele thinks his principle is more compelling, but Strawson, no doubt, finds his more compelling.

Is there any more satisfactory way to resolve the dispute? Unfortunately, no. Most disputes in moral philosophy end up like this: a clash between intuitively compelling principles. Still, there might be a way to resolve the dispute if we can find another principle that is more compelling than both Strawson’s and Mele’s, and that better explains our intuitions about judgments of moral responsibility. Essentially, this is what Waller tries to do when presenting his basic argument against moral responsibility. We’ll be talking about that in part two.

The Problem of Punishing the Innocent

2011-11-23T19:30:00.000Z

This post looks at a classic objection to utilitarian theories of punishment. It starts by setting out the objection as clearly as possible. It then considers the potential replies to the objection.

1. The Problem of Punishing the Innocent
A utilitarian theory of punishment maintains that it is right and proper to punish people for committing a crime, if doing so serves one (or more) of a set of morally desirable goals. According to Howard Simmons’s book Moral Desert: A Critique, these goals can include the following: (i) preventing repeat offences (through incapacitation); (ii) encouraging deterrence (through signalling an intent to punish); (iii) promoting moral education (by forcefully communicating normative standards); (iv) providing emotional catharsis (for the victim or family of the victim); and (v) rehabilitating the offender.

Some of these goals may be more commendable than others (Simmons certainly thinks so), and aiming to achieve one may prevent or undermine the achievement of others. These are things that any fully-developed utilitarian theory of punishment will need to work out. But for the purposes of this post I’ll be ignoring them. Instead, I’ll be focusing on a problem that is supposed to confront nearly all utilitarian theories of punishment (with perhaps the sole exception of pure rehabilitative theories). This is the problem of innocent victims.

The problem can be put like this:

(1) If utilitarian theories of punishment are true, it is right and proper to punish people if doing so will serve one (or more) of the following goals: (i) preventing repeat offences; (ii) deterrence; (iii) moral education; or (iv) emotional catharsis for victims of crime.

(2) It is possible that punishing innocent people could help us to achieve goals (i)-(iv).

(3) Therefore, if utilitarian theories of punishment are true, it could be right and proper to punish the innocent.

(4) It is not right and proper to punish the innocent.

(5) Therefore, utilitarian theories of punishment must be false.

In the remainder of this post, I want to see whether this problem can be dealt with by proponents of utilitarianism. Before doing so, I want to briefly check to see whether the above argument is prima facie plausible.

Looking first to premise (1), I note that this is simply a restatement of the utilitarian thesis. As such, I can see no reason to reject it. Turning then to premise (2), I appeal to the standard thought experiments that are used to support it.

Sheriff Case: Imagine that you are the sheriff in an unruly town that has recently been struck by a series of murders. The townspeople are convinced that a certain person (call them “Jack”) committed the murder. They call upon you to execute Jack in your official capacity. But you are pretty sure that Jack is innocent. You try to tell the townspeople your reasons for thinking this, but they don't seem to care. You know that if you do not carry out their wishes, the town is likely to descend into anarchy and violence. These outcomes are contrary to the goals you seek to achieve by having a system of punishment in the first place.

The suggestion is that, if you were a utilitarian, you should have no objection to executing Jack in this scenario. This seems, prima facie, a plausible claim to make.

Premise (3) follows from the conjunction of (1) and (2), so there can be no objection to it here. That leaves us with (4) as the one potential remaining source of controversy. Note here that (4) is intended to be a description of an intuitive judgment about punishing the innocent. Of course, we are entitled to question how seriously we should take such intuitive judgments. But this kind of questioning can only come after we engage in a more detailed analysis of the assumptions underlying the above argument. Looking at the surface level, we have no reason to reject it.

Since (5) would follow from (3) and (4), it looks like the argument is indeed prima facie plausible. The question we must now ask is whether, once we go beyond surface appearances, the argument remains plausible.

2. Possible Replies
So how might a utilitarian undercut the plausibility of the preceding argument? Two strategies — hinted at above — seem workable: (i) challenge premise (2) by arguing that punishing the innocent would never lead to the desirable consequences listed above; or (ii) challenge premise (4) by arguing that punishing the innocent is not necessarily wrong or that the concept of innocence is irrelevant to utilitarian justifications of punishment. Let’s consider both strategies in turn and, to make things slightly less complex, let’s assume that deterrence is the consequence we are trying to achieve with our system of punishment.

Granting that assumption, proponents of the first strategy might argue in the following manner. First, they might argue that deterrence — at least in the present context — requires the presence of an act of wrongdoing. In other words, they might argue that since our goal is to deter people from wrongdoing, we must assume that there are actual wrongdoers out there. Second, they might argue that in order for a punishment to have a deterrent effect, there must be a link between it and the act (or acts) of wrongdoing that are being deterred. That is to say, the punishment must only arise after acts of wrongdoing, not after other kinds of act.

Think of it in terms of the conditioning experiments of the behaviourist psychologists: in order for a particular behavioural response to be provoked (or suppressed) by a particular kind stimulus, there must be a reliable link set-up between the presence of the stimulus and the presence (or absence) of the behaviour. If there is no reliable link between the two, then the chances of provoking (or suppressing) the relevant behaviour are limited. So, similarly, if the link between wrongdoing and punishment is broken, we can’t expect the system to deter people from wrongdoing. This is what would happen if we started to punish the innocent.

We can put this objection like this:

(6) The goal of a utilitarian system of punishment is to deter future acts of wrongdoing.

(7) In order for a particular kind of behavioural response to be successfully provoked (or suppressed) by a particular kind of stimulus, there must be a reliable link between the response and the stimulus (i.e. if one happens then the other must also happen either at the same time or soon after).

(8) A system of punishment is a kind of stimulus and an act of wrongdoing is a kind of behavioural response.

(9) Therefore, in order for a utilitarian system of punishment to be successful, there must be a reliable link between the punishment and acts of wrongdoing.

(10) If we start to punish the innocent, then there will be no reliable link between punishment and acts of wrongdoing.

(11) Therefore, a successful utilitarian system of punishment cannot allow for the innocent to be punishment.

There are two objections to this argument. First, there is an obvious objection to be made to the theory of human psychology appealed to in premise (7). Even if we stay within the behaviourist tradition, we find those who object to the idea that the link between a stimulus and a response must be 100% consistent. Thus, for instance, B.F. Skinner argued that inconsistent (or, rather, probabilistic) “schedules of reinforcement” could be even more effective (addictive, in fact) for conditioning certain kinds of behaviour. If that’s right, then a system of punishment which is not 100% consistent in who it punishes might be better than one that is. I'm not an expert in behaviourist psychology so I could well be wrong about this, but it seems like a possible objection nevertheless.

The second objection is not an objection to the argument per se, but, rather, an objection to its relevance to the problem of punishing the innocent. Recall that premise (2) of the original argument merely appeals to the “possibility” that punishing the innocent might serve a deterrent goal. This mere possibility is then thought to be enough to counter utilitarianism. In other words, premise (2) is suggesting that if the utilitarian theory is not true in all possible worlds, then it is not an acceptable theory. (This focus on truth across all possible worlds is actually a common argumentative ploy in moral philosophy). Premise (2) does not make any claims about what is needed for a successful system of utilitarian punishment. So, in its present form, premise (11) does not actually defeat premise (2).

This raises a general concern about the use of logical possibility as a standard for testing ethical arguments. Is it really true that we need to prove that our ethical principles are true in all possible worlds before we can accept them? I was at a seminar just last week where one participant defended the use of this standard in ethics. At the time I didn’t voice any objections, but on reflection I worry that it sets the bar at a ridiculously high level. Admittedly, that high level is common to many philosophical disciplines (epistemology anyone?), but surely ethics needs to be more sensitive to both our inability to explore all possible worlds and to the outlandish nature of some possibilities? Surely it would be better use probability-of-happening-in-the-actual-world as a standard?

I offer these as questions for the time being since I don’t know exactly how to answer them. (Does anyone know of good papers addressing the specific issue of standards of success for ethical theories?)

3. Could it be right to punish the innocent?
We turn now to consider the second strategy in responding to the original argument. This strategy, as noted above, focuses on the plausibility of premise (4). On the face of it, this premise looks pretty robust: the idea of punishing the innocent seems about as clear an instance of a wrong as one could imagine. Thus, this seems like a less promising strategy for the utilitarian. Still, there are a couple of things that can be said in its defence.

For one thing, there is the whole idea that the appeal to “innocence” is question-begging. Why? Because it is a holdover from a retributive, desert-based theory of punishment. It has no place in a utilitarian theory. After all, the idea that some people are innocent and so shouldn’t be punished is clearly based on the notion that responsibility and desert are both coherent and significant moral concepts. It is open to a utilitarian to reject both of these notions.

They could do so by appealing to some form of hard determinism. According to hard determinism, no one is ever responsible for anything they do, and since responsibility usually goes hand-in-hand with desert, it would follow that no one ever deserves punishment. This, however, does not mean that punishment is unjustified. It could be that punishment is a kind necessary evil, something that is justified because it is needed to maintain a desirable level of social order. This is, in many ways, consistent with the traditional utilitarian approach to punishment: all harm is evil and punishment is a form of harm, but some evil is acceptable if it allows us to achieve a greater good.

Now, to be fair, hard determinism has plenty of critics: it has a number of counter-intuitive and unwelcoming implications. If you wished to use it here, you’d need to know exactly how hot the philosophical water into which you were getting was. Still, it is a possibility for the defender of utilitarianism.

Another objection to (4), this one made by Simmons in the course of defending his own utilitarian theory, focuses on the alleged unjustifiability of punishing the innocent in the extreme one-off cases. It’s these kinds of cases — such as the Sheriff one — that are most commonly used to support the problem of punishing the innocent. What’s more, it’s these kinds of cases that are not vulnerable to the “punishing the innocent is not likely to be successful”-argument that was discussed above.

But when looking at these extreme cases, Simmons argues that the intuitive pull of the “punishing the innocent is wrong”-judgment is much less robust. These are hard cases (or dilemmas), ones in which both outcomes seem undesirable and so intuitions clash. He thinks that if we really thought hard about a case like the Sheriff one, and if we accepted all the assumptions it asked us to make about the probability of certain outcomes, we might be less inclined to reject the utilitarian approach. Thus, premise (4) is at least questionable in these extreme cases.

Note that this objection shows how the sword of logical possibility cuts both ways: if the utilitarian must abandon their position if a logically possible, if improbable, scenario suggests that punishing the innocent might achieve desired outcomes, so too must the non-utilitarian abandon their intuitive judgment if a logically possible, if improbable, scenario leads us to seriously doubt our previously robust moral intuitions. Perhaps this is yet another reason to abandon the logical possibility standard.

Partridge on Performance-Enhancement in Swimming

2011-11-22T11:41:00.000Z

As part of an ongoing project, I’m looking at the propriety (and regulation) of performance-enhancing drugs and technologies in educational assessment. One of the avenues of inquiry I’m pursuing is the analogy that is sometimes drawn between sports and education. The analogy typically works like this:

(1) The use of performance enhancers in sports is wrong (it’s cheating; it’s unfair);

(2) Educational assessments are like sporting contests;

(3) Therefore (probably), the use of performance enhancers in educational assessments is wrong.

Now, of course, there’s a lot to challenge here. For starters, you might argue that sporting contests are not like educational assessments. While they do share some features (e.g. competitiveness, some seemingly arbitrary rules), they also differ in crucial respects. For example, when I analysed John Harris’s case for enhancement some time back, I looked at his claim that educational success was an intrinsic good, as opposed to a relative good (which is what sporting success seems to be). This kind of challenge focuses directly on the analogy (premise 2) and is common in most assessments of analogical arguments.

But one could also challenge premise (1), which is the claim about the propriety of enhancement in sport. For instance, one could argue that one of goals of sport is to enhance performance, and so it seems silly to think performance enhancement is improper in the sporting context. Proponents of this kind of argument (e.g. Savulescu) will then tend to support the idea of allowing blood-doping and other kinds of drug use in sport.

Although I’m often tempted to reject premise (1), in this post, I want to look at one interesting argument that actually supports premise (1). The argument comes from the following paper:

Brad Partridge “Fairness and Performance-Enhancing Swimsuits at the 2009 Swimming Championships: The Asterisk Championships” (2011) 5 Sport, Ethics and Philosophy 63

As is obvious from the title, the paper is focused on a specific sport (swimming) and a specific enhancement (polyurethane swimsuits). As such, it can only really support a narrower form of premise (1), which we might phrase as follows:

(1*) The use of performance-enhancing swimsuits in the sport of swimming is wrong.

Narrowing the focus in this manner allows Partridge to make a more interesting, and perhaps ultimately more persuasive argument. But what would happen if we tried to plug this revised version of premise (1) back into the original analogical argument? Maybe very little. After all, we could just draw a specific analogy between swimming and educational assessment rather than one between sporting contests and educational assessments in general. Indeed, this might lead to a much stronger argument. We might even be able to strengthen it further by limiting it to specific forms of educational assessment. I’m not going to look at that here, but it’s something to think about nonetheless.

Anyway, on to the main event: Partridge’s argument in support of (1*).

1. Some Background
Before getting into the meat of the argument, some background is probably in order. For many years now (since the late 1990s, if I recall correctly) professional swimmers have been wearing full or partial body suits instead of the more traditional trunks in swim races. These suits improve race times by reducing drag and increasing buoyancy. They are, without doubt, performance enhancing.

In the 2009 swimming world championships, the latest and most technologically sophisticated version of these swimsuits was used to great effect by a number of swimmers. That much is obvious from the fact that 43 world records were broken in that championship alone. There were only 40 races.

This remarkable bevy of record-beating performances did not lead to widespread rejoicing within the swimming community. The suits seemed to be having an unwelcome effect on the sport. Perhaps the best illustration of the problem came from the 22 year old German swimmer, Paul Biedermann. He broke Ian Thorpe’s 400m freestyle record by improving on his own previous personal best by 7 seconds. He admitted afterwards that this would not have been possible without the suit. Soon after, full body swimsuits of the sort worn by Biedermann were banned.

When I ask students what they think of cases like this, they generally agree that there is something undesirable or unsavoury about them. For technology to play such an integral role in someone’s achievements seems wrong. For one thing, it seems run contrary to the spirit of sporting contests, which is twofold: (i) to test the limits of human performance; and (ii) to do so in a fair and equitable manner. The first of these has to do with the value of authenticity; the second has to do with the value of fairness. Partridge’s argument centres on the value of fairness and the impact that the use of performance enhancing swimsuits has on that value.

2. Relative and Absolute Outcomes
To understand the argument properly, we’ll need to make some important conceptual distinctions. But we can kick things off by looking at an easy version:

(4) If something is unfair, it is (ceteris paribus) wrong.

(5) The use of performance enhancing swimsuits in the sport of swimming is unfair.

(1*) The use of performance-enhancing enhancing swimsuits in the sport of swimming is wrong.

This is pretty uninteresting, but it gives us a scaffold on which to build more interesting arguments. We’re going to take it for granted that premise (4) is true. Our concern will lie instead with premise (5) and the arguments that can be offered in it support.

We’ll start by making an important conceptual distinction between two kinds of outcomes in sporting contest. The distinction originates in the work of Thomas Douglas.

Relative Outcomes: In most sporting contests (with perhaps some rare exceptions) there is a group of competitors, or a group of teams of competitors, whose performances are ranked relative to one another. For example, in most swimming races, the performance of one individual is ranked relative to the performance of another individual: first place, second place, third place and so on. Similarly, in professional football (soccer to Americans) teams are ranked relative to one another, both in the individual matches (winners v. losers) and over the course of a season (points tables).

Absolute Outcomes: In most sporting contests, in addition to the competitors’ performances being ranked relative to one another, they are also scored or evaluated relative to some absolute standard. Indeed, it is often the case that measurement relative to the absolute standard is the way to distinguish the relative performances of the competitors. For example, in swimming races, competitors are performances are assessed against the absolute standard of time: how quickly did they manage to swim a certain distance. In soccer, number of goals scored, number of goals conceded perform similar functions.

A quick comment here on absolute standards before moving on: although absolute standards are common in most sports, I think some standards are more absolute than others. For instance, in a soccer match, while the number of goals scored is a clear objective measure of success, it is not something that easily lends itself to predictions or comparisons of success across teams. Thus, the fact that Manchester United scored 9 goals against Ipswich Town on a particular day says nothing much about their ability to score goals against other teams like Liverpool or Manchester City. Compare this with the swimmer who manages to win his race by swimming 100m freestyle in 49 seconds at a particular meeting. His achievement of that absolute outcome does say something meaningful about both his potential ability to beat another swimmer whose best time is only 55 seconds.

What relevance does the absolute/relative distinction have to our dispute about performance enhancement in swimming? It is to this question that we must now turn.

3. Achieving Fairness in Relative Outcomes
The suggestion of Thomas Douglas is that when it comes to the value of fair outcomes in sport, our concern should lie with the fairness of relative outcomes not absolute outcomes. If we have two competitors, A and B, and we end up ranking A’s performance ahead of B’s, then we ought to worry if A’s performance was only made possible by A’s possession of some unfair advantage over B. We should not worry simply if A’s absolute outcome was better than B’s. After all, the purpose of sport is primarily to distinguish between abilities to achieve absolute outcomes, not to make the same absolute outcomes available to all.

To apply this to the swimsuit example, Douglas’s argument is that Biedermann’s performance in the 400m freestyle race should only concern us if his first place finish was made possible by his having some unfair advantage over his competitors; it should not concern us simply because it broke the pre-existing world record. Obviously, the question then becomes: what counts as an unfair advantage? The concept of equal access provides some clues. If the swimsuit he wore was not equally accessible to all (e.g. if only those with a particular sponsorship deal had access to it), then it would seem like he had an unfair advantage.

There’s a certain appeal to this line of reasoning. It makes use of the concept of equality of opportunity, something that is often thought to be a inherent feature of a sporting contest. The contest itself is supposed to be pure: only those abilities and talents that make up the internal activity of the contest can be used to gain an advantage over a competitor; factors external to the sporting activity have no part to play. To put it more pithily: there is supposed to be a level playing field. If someone has privileged access to a technology, it leads to an imbalance in the playing field. This is what seems to have happened at the 2009 swimming championships

To put this into an argumentative form:

(6) In order for a sporting contest to be fair, equality of opportunity must be attained.

(7) If competitor A has privileged access to a technology that enhances his/her performance relative to that of B, then equality of opportunity is not attained.

(8) Some competitors had privileged access to performance-enhancing swimsuits at the 2009 swimming world championships (SWC).

(9) Therefore, equality of opportunity was not attained at the 2009 SWC (from 7 and 8).

(10) Therefore, the use of performance enhancing swimsuits at the 2009 SWC was unfair (from 6 and 9).

Note the narrowness of the conclusion. It only says the use of the swimsuits at 2009 SWC was unfair; it says nothing about the use of those swimsuits in general. This is for good reason. Go back to premise (7) for a moment. This is probably the key to the whole argument. It states that privileged access is a problem, it does not say that universal access is a problem. And this makes sense since only privileged access creates equality of opportunity concerns: if everyone has access to the technology, everyone has the same opportunities.

In other words, if fairness is going to be guiding principle here, it does not follow that all performance-enhancers are unfair. A universal ban might generate fairness, but universal access would also generate fairness. A concern for fairness could work both ways.

In saying all of this, we must realise that equality of opportunity is an ideal, not a reality. There are lots of technologies, training facilities and so forth that are only available to sportspeople in wealthier countries, and yet we seem to tolerate them. Does this mean we are being hypocritical in rejecting performance-enhancers? Not necessarily. Our toleration might stem from the practical impossibility of eliminating all forms of differential access. We should still, however, be looking for ways to level the playing field. Indeed, providing access to performance-enhancers for those in underprivileged countries might be a way of achieving this. A kind of affirmative action policy for professional sports.

3. Fairness in Inter-temporal Comparisons
So much for Douglas’s argument. What does Partridge offer in response? Well, he offers an interesting riposte. The riposte is premised on the idea that there is at least one kind of relative outcome, whose fairness we would like to maintain, that could not be maintained by adopting a permissive attitude towards performance-enhancing technologies like Biedermann’s swimsuit.

Which relative outcome would that be? The answer: the inter-temporal ranking of swimmers’ performances. You see, swimmers don’t simply compete with those who happen to share the pool with them on a particular day; they also compete with their predecessors in the sport. These are the great swimmers of the past, who set the records that contemporary swimmers aim to beat.

So when Biedermann was swimming his record-breaking 400m freestyle, he wasn’t simply competing against those who were in the pool at the same time; he was also competing with the Ian Thorpe (the previous record holder) of seven years previous. And while their two performances were measured against an absolute standard (that of time), they were also, maybe more importantly, being measured relative to one another. Interested spectators and fellow participants would really want to know: whose performance was truly better? But since Biedermann’s performance was made possible by an (unfair?) technological advantage he had over Thorpe, i.e. one that was not accessible to Thorpe, this comparison could not really be made. The fact that the comparison could not be made provides one reason for adopting an anti-enhancement stance, at least on this particular issue. Why? Because to lose the ability to perform inter-temporal comparisons is to lose something of great value. As one coach commented: “we have lost the history of the sport”.

To be clear, Partridge’s argument is not just some naive and misguided lament for some golden age of swimming. He is well aware that there have been some advances in the training techniques available to swimmers and that these probably make inter-temporal comparisons an inexact process — he does note however, in passing, that swimming has been less vulnerable to technological advances that some other sports, e.g. golf. He is also aware that we may accept these advances because they bring other benefits. But two facts remain: (i) there is some value to inter-temporal comparisons (this is accepted by nearly all participants to the sport); and (ii) there has to be a point at which technological advances undermine the sporting activities we value. These two facts are the key to understanding Partridge’s argument. Let’s go through each briefly.

Turning to the second fact first, note how we don’t allow swimmers to participate with jet engines attached to their legs. Why not? Well, presumably, because if they did so they would no longer be swimming: they would no longer be engaging in the activity we value and reward. This means that there are some technological performance-enhancers we could not tolerate. But if this is true if, doesn’t it then follow that performance-enhancing swimsuits of the sort used by Biedermann could possibly be intolerable?

It does, but of course, the question then becomes: is it actually intolerable? This is where the first of the two facts comes into play. If inter-temporal comparisons are a valuable part of the sport of swimming, and if performance-enhancing swimsuits undermine that value by making such comparisons unfair, then they are actually intolerable. Why? Because they are preventing us from engaging in a particular kind of sporting activity that we rightly enjoy.

To summarise the argument (exchanging “intolerable” for “wrong”):

(11) If some technological advance undermines a valuable aspect of a sporting activity, then the use of that technology is wrong (within that sport).

(12) Inter-temporal comparisons of sporting (or, maybe, just swimming) performances are valuable.

(13) The use of performance-enhancing swimsuits, such as those used in the 2009 SWCs, undermines the inter-temporal comparison of swimming performances by making such comparisons unfair.

(1*) Therefore, the use of performance-enhancing swimsuits in the sport of swimming is wrong.

This argument is much stronger than the one we just considered from Douglas. That’s why it supports the broad conclusion of (1*), rather than the narrow conclusion of (10). It provides succor for the more staunchly anti-enhancement proponent. Yet for all that, it is far from unassailable. One could, for example, always question the value of inter-temporal comparisons. One could also, perhaps, argue that we shouldn’t cling to a particular kind of sporting activity in the face of technological development: if the technology brings greater advantages with it than did the sporting activity, then perhaps we should simply abandon the sport? Sports do occasionally go extinct or lose their appeal, and there may be no good reason to lament this fact. Who now mourns for the decline of interest in pinball, for instance?

Madness, Badness and Neuroimaging-based Responsibility Assessments (Part Three)

2011-11-21T16:45:00.000Z

(Part One, Part Two)

This is the third part in a brief series on Nicole Vincent’s article “Madness, Badness and Neuroimaging-based Responsibility Assessments”. In part one, I covered the basics of criminal law and responsibility, and looked at Vincent’s suggestion that neuroimaging could play a role in assessing capacity for responsibility. In part two, I explored some of the problems with this suggestion. In particular, I explored the problem that arises from the overlap between conceptions of moral badness and mental illness.

In this final part, I’m going to consider Vincent’s defence of her original suggestion. Just to reiterate, her claim is based on the following schematic:

Mental capacity → can & can’t → duties → culpability

Read from right to left, this schematic says that one’s culpability arises from the violation of one’s duties; one’s duties are dependent on what one can and can’t do; and what one can and can’t do is dependent on one’s mental capacities. Consequently, evidence of impaired mental capacities — which is the kind of evidence brain scans might provide — can undermine culpability.

How is this position defended?

1. Some Conceptual and Practical Distinctions
As a first step towards defending her position, Vincent distinguishes between two different responsibility concepts (see my earlier post on her STRC for more). They are: (i) capacity responsibility and (ii) virtue responsibility. She explains the distinction by reference to two fictitious children:

“Responsible” Jane: Jane is eight years old and very well behaved. She gets up in the morning, washes, dresses and prepares her lunch all on her own accord. She doesn’t get into trouble at school, she always does her homework, she helps prepare the dinner and even looks out for her older brother John. Yet despite all of this, she is only eight years old and so has not fully developed the capacities needed for blameworthiness. When she slips up or does something wrong, we do not blame her for doing so. In other words, Jane is responsible in the virtue sense of responsibility, but she is not responsible in the capacity sense of responsibility.

“Irresponsible” John: John is seventeen years old and badly behaved. He constantly plays truant from school, frequently skips his homework and avoids helping out at home. He has to woken up most morning and someone else has to clean his room and prepare his lunch. Yet despite all this, John has developed the capacities needed for blameworthiness. When he fails to do what we expect of him we blame him for this. In other words, John is responsible in the capacity sense of responsibility, but he is not responsible in the virtue sense of responsibility.

Vincent uses these examples to make the following point: if we accept the legitimacy of the virtue/capacity distinction, then we will notice that people can be assessed for responsibility on two separate grounds. First, they can be assessed on the basis of who they are (virtue) and second they can be assessed on the basis of what they did (capacity). Furthermore, when we say that someone is responsible on the grounds of who they are, nothing in particular follows about their responsibility for what they did. The two judgments are conceptually distinct.

Before we consider the implications of this distinction for Vincent’s overall argument we need to make another distinction. This distinction has to do with the different stages in the criminal trial. In particular, with what we might call the guilt determination stage and the sentencing stage. At the guilt determination stage our primary concern is with capacity responsibility: did the accused person have the requisite capacities to be held responsible for what they did? At the sentencing stage, capacity responsibility is taken for granted and we shift to consider virtue responsibility: does the person have the kind of character traits that make them a fit subject for punishment?

2. In Defence of the Capacitarian Role for Neuroimaging
Obviously, these distinctions have significant implications for Vincent’s argument. She is claiming that evidence of a reduction in capacity would be exculpatory. This is contrary to the view of Heidi Maibom, who maintained that a reduction in capacity could sometimes be inculpatory (because it could suggest that the person was morally evil). And it is also contrary to the view of Margo Reimer, who maintained that: (a) a reduction in capacity could be, at the same time, inculpatory and exculpatory; and (b) there was no principled basis for choosing between the two interpretations.

Vincent responds to these contradictory views in the following manner. First, she argues that Maibom’s claims conflate the virtue and capacity senses of responsibility. To go back to the earlier example of Conrad the psychopath, Maibom’s belief that he is culpable is a belief about virtue responsibility, not a belief about capacity responsibility. It is something that would be relevant at the sentencing stage of the criminal trial, not at the guilt determination stage. Consequently, such a belief should not affect Vincent’s suggested role for neuroimaging.

The same basic argument applies to Reimer’s claim. When she says that evidence of incapacity can be both inculpatory and exculpatory, she is failing to distinguish between the two responsibility concepts and the two stages in the criminal trial. The evidence of incapacity could be exculpatory at the guilt-determination stage and inculpatory at the sentencing stage. What’s more, the conceptual distinction between virtue and capacity responsibility provides the principled basis for shifting between these two interpretations.

To sum up, Vincent thinks her argument has done two things. First, it has identified how neuroimaging evidence could affect judgments of criminal responsibility. And second, it has shown, contrary to the views of Maibom and Reimer, that there is no genuine conflict between the inculpatory and exculpatory interpretations of neuroimaging evidence: they simply apply to different stages of the criminal trial and to different concepts of responsibility.

3. Some Quick Concluding Thoughts
Allow me to conclude with two observations.

The first observation has to do with Vincent’s claim to have dissolved the conflict between the inculpatory and exculpatory interpretations of neuroimaging evidence. I’m not convinced that she has managed to do so. Indeed, I think a clear conflict remains. In this regard, look at Vincent’s response to Reimer. In this response, she seems to be doing two things: (i) she is arguing that evidence of incapacity (such as the evidence of the psychopath’s lack of empathy) would be potentially exculpatory at the guilt determination stage but inculpatory at sentencing stage; and (ii) she is arguing that this means there is no real clash between the exculpatory and inculpatory interpretations of such evidence.

But this second is clearly not the case. Since guilt-determination is a necessary precursor to sentencing, a person who was excused at the guilt-determination stage would never reach the sentencing stage. Thus, to hold to the inculpatory interpretation of the evidence at that stage would necessarily exclude the exculpatory interpretation at the later stage. And if one judgment is necessarily excluding another, a conflict clearly remains: the judgments are not as conceptually distinct as Vincent seems to be claiming (at least, within the criminal law they are not that distinct). Furthermore, if we run with the exculpatory interpretation we fail to do justice to the intuition that is guiding people like Maibom and Reimer to the inculpatory interpretation. This would mean we ignore the main issue.

The second observation has to do with Vincent’s interpretation of the Jane and John examples. She says that because Jane is only eight years old she lacks the capacity for responsibility, and that this is true despite the evidence of good, responsible character. I think this claim adopts an questionable account of the development of capacity, and an unrealistic account of the relationship between virtue and capacity.

As regards the first of these issues, while it is true that the legal system traditionally viewed children as lacking in capacity, this is a view that is in decline. There is a push now for much more individualistic and functional assessments of capacity, as well as an increasing call for the views and interests of children to be taken into consideration in legal decisions that affect them. I think these moves are driven by an acknowledgment that a bright-lined rule like “all persons under the age of 16 (or whatever) lack capacity” fails to do justice to the differential rates of capacity-development across individuals. Why couldn't Jane just be a precocious developer of responsibility-relevant capacities?

(Incidentally, in saying this I’m not welcoming the idea that children should be held responsible or should be punished for criminal acts; I’m just pointing out that increasingly individualistic judgments of capacity in certain areas of the law could have this affect.)

As regards the second of these issues, I can’t see why evidence of virtuous character would not also lead us to conclude that the person has well-developed capacities as well. At any rate, I don’t think the disconnect is as pronounced as that suggested by Vincent.

Madness, Badness and Neuroimaging-based Responsibility Assessments (Part Two)

2011-11-16T20:57:00.002Z

(Part One)

This is the second post in a brief series on Nicole Vincent’s article “Madness, Badness and Neuroimaging-based Responsibility Assessments”. In part one, we covered the basics of criminal responsibility and provided one suggestion for how neuroimaging could play a part in responsibility assessments within the criminal law.

To summarise what was said there, in general responsibility seems to track mental capacity. That is: the possession of certain properly functioning mental capacities (e.g. the capacity for rationality) is usually seen as a necessary precondition of responsibility. If these capacities are not functioning properly in a particular agent, then that agent may be excused from responsibility. Since the brain is the organ in which mental capacities are instantiated, and since functional brain-imaging reveals the workings of the brain, it would seem like brain scans could tell us whether or not the responsibility-relevant mental capacities are properly functioning.

I identified several problems with this line of reasoning at the end of part one. In particular, I said it makes dubious factual assumptions about mind-body physicalism (assumptions that some physicalists reject) and that it makes dubious normative assumptions about the link between capacities and responsibility. In this post, we look in more detail at these dubious normative assumptions, following Vincent’s arguments as we do so.

1. Three Interpretations of the Psychopath
Vincent grounds the discussion in an example. Suppose there is a man named Conrad and that he is a psychopath. As a psychopath, he lacks the capacity for empathy. Functional brain scans reveal that certain areas of Conrad’s brain — areas that have been independently connected to empathy — are functioning below or outside some statistically normal set of parameters. Suppose Conrad kills somebody. What should we conclude about Conrad’s responsibility for the killing? Vincent considers three possibilities.

The first, which seems to be her own preference, is to adopt a standard capacitarian line. If the capacity for empathy is a necessary precondition for responsibility, then evidence of Conrad’s impaired capacity counts against his responsibility. Now, to be clear, we’re not saying here that empathy is a necessary precondition of responsibility; we’re just saying that if it is, then Conrad’s incapacity could be an excusing factor. If empathy is not a necessary precondition for responsibility, then the evidence does nothing to excuse.

The second possibility, one that Vincent attributes to Heidi Maibom, analyses the brain scans from the perspective of the madness vs. badness dichotomy. These terms are used somewhat loosely here, but, roughly, the idea is that a mad person is one who has an illness that exempts or excludes them from responsibility assessments, whereas a bad person is one who has some moral failing and who ought therefore to be blamed. Maibom’s proposal, according to Vincent, is that evidence as to impaired mental functioning will reveal whether or not a person is mad or bad; and whether or not a person is mad or bad will determine whether or not they are responsible. She summarises this view in the following schematic (see previous post for details on how to read these):

brain scan → mental capacity → mad or bad → culpability

Applied to Conrad, Maibom’s approach would work like this: a lack of empathy is a moral failing, something that makes a person bad as opposed to mad. Therefore, Conrad is responsible for causing the death. Indeed, he is many ways the worst kind of criminal, one that is completely without remorse for what he has done.

The third possibility, this time attributed to Margo Reimer, is to adopt an uneasy and unprincipled amalgamation of the other two. Reimer believes that evidence of impaired capacity could be both an excusing and an aggravating factor. It just depends on how we choose to look at it, and there is no objective or principled basis from which to make this choice.

From one perspective, Conrad’s lack of empathy could be viewed as a deficit or disorder, something that impairs him relative to the normal person. As a result, this perspective tends to excuse Conrad. From another perspective, Conrad’s lack of empathy could be seen as an evolutionary adaptation: something that allows a few non-cooperators like him to “free ride” on a society of otherwise cooperative individuals. As a result, this perspective tends to morally condemn Conrad.

Obviously, having all three of these possibilities out there is unappealing. Vincent thinks her interpretation is correct, but why? To answer that question, we must do two things. First, we must look at her reasons for dismissing or, at least, discounting the views of Maibom and Reimer. And second, we must look at her reasons for endorsing her interpretation. We’ll focus on the first of those tasks in the remainder of this post.

2. Dismissing Alternative Views
Vincent is surprisingly quick in her dismissal of Reimer. In essence, she says that Reimer’s concern — about the lack of a principled basis for choosing between the madness/badness interpretations — is nothing new. Which is to say: it doesn’t say anything in particular about how we ought to interpret neuroimaging evidence of incapacity. The very same interpretative difficulty applies to behavioural evidence of incapacity.

For example, Gary Watson famously discussed the case of Robert Alton Harris in his work. Harris was executed in 1992 for murdering two people in cold-blood in 1978. The murder was brutal, and Harris was without remorse. But Harris had also suffered extraordinary hardship, rejection and brutality during his upbringing which had no doubt moulded him into the person he became. So was Harris mad or bad? The question arises even without any neuroimaging evidence.

I’m not so sure about this quick dismissal of Reimer. For one thing, I don’t think either Maibom’s or Vincent’s interpretations say anything in particular about neuroimaging evidence. Their arguments could just as easily apply to behavioural evidence as well, so why make that a ground for dismissing an argument? I’m not sure that relevance to neuroimaging should be a guiding consideration here. Surely the issue Reimer raises is important, irrespective of whether it is new to neuroimaging evidence or not?

Moving on to her dismissal of Maibom’s interpretation, Vincent has something more interesting to say here. She says that Maibom’s argument that incapacity could actually be evidence of responsibility is question-begging against the capacitarian. How so? Well, because it simply reverses what the capacitarian thinks about the entailment relationship between judgments of madness/badness and judgments of responsibility.

In other words, Vincent thinks that Maibom must hold the following view of the entailment relationship between those sets of judgments (applied to the Conrad case):

(7) If Conrad lacks the capacity for empathy (as revealed by a brain scan), then Conrad is bad.

(8) If Conrad is bad, then he is responsible for what he does.

(9) Therefore, if Conrad lacks the capacity for empathy, then Conrad is responsible for what he does.

The key premise here is (8) which suggests that judgments about madness or badness entail judgments about responsibility. This is in almost direct opposition to what the capacitarian has to say. Which is as follows:

(10) If Conrad lacks the capacity for empathy, and if such a capacity is a necessary precondition for responsibility, then Conrad is not responsible for what he does.

(11) If Conrad is not responsible for what he does, then he is mad (in the sense that he suffers from an excusing disorder).

(12) Therefore, if Conrad lacks the capacity for empathy, then he is mad.

As you can see, premise (11) here suggests that judgments about responsibility entail judgments about madness/badness. This contradicts premise (8) above. This is a problem since it suggests that Maibom and the capacitarian disagree about a fundamental premise, and so Maibom cannot hope to persuade the capacitarian simply by appealing to the concepts of madness and badness.

I think what I’ve just said is a reasonably fair summary of what Vincent says in her article, but I could be wrong. I found it difficult to summarise the reasoning presented in a precise manner. Assuming it is correct, I think there are plenty of problems with it. What seems lacking here is any explicit acknowledgment of the role of norm-setting in theories of responsibility and theories of illness. To be fair, Vincent is aware of this (see post on the STRC), but allow me to explain why I think it’s particularly important here.

For starters, I think it’s true to say that whether some physical or mental incapacity is classified as a disease (madness) or a moral defect (badness) is a normative or evaluative question. It is not something that can be simply read off the physical data, it is something we impose on the data. This is a problem for Maibom’s view since it means that classifying something as a disease or a moral defect is not going to be a straightforward or value-free exercise. If we classified a lack of empathy as a disease, as opposed to as a moral defect, then there would be no real disagreement between her and Vincent. They would both reach the conclusion that Conrad was excused.

At the same time, whether or not a particular capacity is a necessary precondition for responsibility is also a normative or evaluative question. This is explicitly acknowledged in how I phrased premise (10) of the above argument. Note how the premise is a double conditional: it only applies if the capacity for empathy has previously been acknowledged as a precondition for responsibility. Plenty of people disagree about whether empathy is necessary for responsibility and their disagreement is a normative one: it is concerned with the standards or ideals we expect of a responsible agent. If we decided that empathy was not necessary for responsibility, then there would be no real disagreement between Vincent’s position and Maibom’s. They would both reach the conclusion that Conrad was responsible.

So, as you see, the disagreement between the two sides here is being driven by their answers to the norm-setting questions in theories of responsibility and theories of disease respectively. Change the answers and the disagreement vanishes. This suggests to me that the issue here is not really one of question-begging on the part of Maibom, but, rather, one of questions being ignored by both sides.

Anyway, that’s all for now. In the next post, we’ll look in more detail at Vincent’s defence of her position.

Madness, Badness and Neuroimaging-based Responsibility Assessments (Part One)

2011-11-15T10:23:00.000Z

Following on from my previous post looking at Nicole Vincent’s structured taxonomy of responsibility concepts (STRC), this post begins to take a look at another article by the same author. Subsequent posts will also look at this article. The article in question is:

“Madness, Badness and Neuroimaging-Based Responsibility Assessments” in Freeman, M (ed) Law and Neuroscience: Current Legal Issues (vol. 13) (Oxford University Press, 2010)

As might be guessed from the title, the article deals with the role that advances in neuroimaging might play in responsibility assessments. Now, the phrase “responsibility assessments” is slightly ambiguous, but as becomes clear when one reads the article, Vincent is concerned with the kinds of assessment that take place within the criminal law.

In this post, I follow Vincent’s discussion by laying out the basic responsibility assessment process that is used in the criminal law, and then look at her suggested role for neuroimaging in this process. I close the post by identifying a problem with this suggested role (one that is also identified by Vincent), which is then taken up in the next post. You should note at the outset that some of the ideas in the STRC will show up in the discussion here. So you might like to take a look at the previous post on the STRC before reading this.

1. Responsibility Assessment in the Criminal Law
We hold people responsible for crimes. As students of criminal law will know, a crime is made up of two basic components or elements: the external element (traditionally called the “actus reus”); and the fault element (traditionally called the “mens rea”). These can be defined as follows:

External Element: This is the conduct, outcome or state of affairs that is deemed criminal. For example, a causal link between the actions of one person and the death of another is the external element of both the offence of murder and of manslaughter; damage to another person’s property is the external element of the offence of criminal damage; and non-consensual sexual intercourse is the external element of the offence of rape. Although this element of an offence was traditionally referred to as the “actus reus”, I think “external element” is better as criminal offences cover more than just “actions”.

Fault Element: This is the blameworthy mental state of the agent that accompanies the external element of the offence. It is usually the presence of the fault element that makes it right to hold the agent responsible for the external element. For example, intention to kill or cause grievous bodily harm is the fault element of murder; recklessness as to the outcome of one’s actions is the fault element of manslaughter, and so on. It’s worth noting that not all criminal offences have fault elements attached to them. There are such things as strict liability and no liability offences. For instance, where I come from, it is technically an offence to be found in a property with a television without a TV licence. This is true irrespective of whether one was knowingly, intentionally or recklessly without a TV licence. In other words, no excuses are tolerated (at least officially).

Because these two elements form part of most criminal offences, they provide a basic recipe or formula for criminal responsibility. It’s perhaps best to refer to this recipe as a “responsibility assessment process” just so the meaning is clear. The assessment process has, as Vincent notes, two stages to it: (i) determine whether or not the external element of the offence has taken place and can be linked to the actions of a particular agent; and (ii) determine whether or not the agent fulfills the criteria established by the fault element of the offence. (To those of you who are keeping tabs, this assessment process hearkens back to the outcome, causal, role and capacity concepts in the STRC.)

To give the example used by Vincent, suppose you come across the body of Smith in the forest. There is a gunshot wound to the head and the body has been hidden beneath a bush. The first thing you would do would be investigate whether Smith’s death by shooting could be linked back to the actions of another agent. This would be an investigation into the external element of the offence of either murder or manslaughter. To keep things simple, we’ll suppose that murder is the only relevant offence here.

Now suppose that your investigation is successful: you manage to link Smith’s death to the trigger pulling action of Jones. Then you confront the issue of blame: can Jones be blamed for Smith’s death? This, of course, would require an investigation into the fault element of the offence. There are two issues to consider here: was Jones’s conduct justifiable or was it excusable? This introduces us to two very important concepts in the criminal law:

Justification: We generally think that killing people is wrong. That is our default moral presumption. If Jones claims that his shooting Smith was justified, then he would be trying to rebut this default presumption. Pretty much the only way he can do this is if he can prove that he acted in self-defence. The best way to think about a justification is as a denial of wrongdoing.

Excuse: In contrast to a justification, an excuse is a denial of responsibility. If Jones claims that his shooting Smith should be excused, then he would be trying to show us that he does not match the criteria for responsibility. Typically, this will mean that he lacks some capacity that we expect of responsible agents or, alternatively, that a responsibility-relevant capacity that he normally has was impaired at the time of the offence.

Obviously, we would need to prove the absence of both of these possibilities before we could deem Jones responsible.

Vincent summarises the responsibility assessment process in the following schematic:

Mental capacity → can can’t → duties → culpability

Read from right to left, the schematic says the following: an agent is culpable when they violate their duties; their duties are dependent on what they can and can’t do; and what they can and can’t do is dependent on their mental capacities. If they lack some capacity that would be necessary for the performance of their duties, then they can be excused. Alternatively, if they are justified in what they do, then they have not — despite initial appearances — violated their duties.

2. A Suggested Role for Neuroimaging
Thus far we have been dealing with some pretty basic aspects of criminal law. Now we move on to the more interesting question: how might advances in neuroimaging affect the responsibility assessment process in the criminal law? Vincent suggests two possible roles.

First, it’s possible that neuroimaging could play a role in investigating the external element of the offence. The most obvious way in which this could happen is if one of the proposed lie-detecting or mind-reading tests that are based on neuroimaging technologies are proven to work. They could, in theory, help us to figure out what happened in the past and whether an agent’s actions were linked to (or constituted) a crime. As it happens, however, such technologies are subject to a number of limitations. I’ve actually written about this in past (see my personal webpage for more), and may do so again in the future. For now, we’ll these possibilities to the side.

Second, and more relevant here, neuroimaging could play a role in investigating the fault element of the offence. In particular, it could play a role in assessing whether or not the agent has the mental capacity we require for responsibility. The rationale behind this claim can be laid out in a simple formal argument. The argument refers to "Capacity X". This is intended to stand in for any responsibility relevant capacity. No specific capacity is mentioned because different theories of responsibility focus on different capacities.

(1) The mental capacity X (which is responsibility-relevant) is instantiated in or is some way constituted by a brain mechanism or set of brain mechanisms.

(2) Functional neuroimaging allows to see how sets of brain mechanisms are working.

(3) Therefore, functional neuroimaging will allow us to see how the mental capacity X is working.

The argument is not perfectly valid. I suspect an additional premise would be needed stipulating that if X is instantiated in or constituted by Y, then seeing how Y works is equivalent to seeing how X works. This might well be challengeable, or, at least, present significant hurdles for the use of brain scans in responsibility assessments. How so? Well, it could be that the mental code — i.e. the precise relationship between brain states and mental states — is both complex and convoluted. Consequently, reading how a particular mental capacity is working off of a scan showing how a particular brain mechanism is working could be quite tricky. Indeed, I suspect it is quite tricky.

This leads to another problem with the argument, namely: it presumes a very simple form of physicalism, one in which brain states, and only brain states, correlate with mental states. The problem is that one doesn’t need to be a dualist to deny this. Proponents of the extended mind thesis, for instance, would probably argue that mental states correlate with brain states and other physical states including states that are external to the body of the agent. If the extended mind thesis is true, then the argument will need to be revised.

But let’s not get bogged down in these problems here. Let’s assume, instead, that the argument is basically correct and that we can determine how a mental capacity is working from a brain scan. What then follows? In general, this kind of reasoning is attractive:

(4) The proper functioning of mental capacity X is a necessary condition for responsibility.

(5) Therefore, if mental capacity X is not functioning properly or is somehow impaired in a particular agent, then that agent cannot be held responsible for what they do.

(6) Therefore, if a brain scan reveals that brain mechanism Y (which constitutes or instantiates X) is not functioning properly in a particular, then that agent cannot be held responsible.

As I say, this kind of reasoning is attractive. It gives a very direct and important role to neuroimaging in responsibility assessments. To put it most simply, neuroimaging can be used to introduce evidence of incapacity. But as attractive as it may be, it throws up some problems. First, and most obviously, sometimes evidence of impairment works in the opposite way, i.e. it makes an agent seem more blameworthy, not less. This would be when the impairment suggests that the agent is morally evil, perhaps irredeemably so. Second, and similarly, it’s not clear that the relationship between agency-capacities and responsibility assessments is a straightforward as is being suggested here. In particular, it sometimes seems like a failure to have a properly functioning mental capacity can sometimes be blameworthy and that blame for particular actions can be traced back to the blame for having this improper mental capacity.

Vincent tries to resolve (or dissolve) the first of these problems in her article. We'll start looking at this in the next post.

Vincent's Structured Taxonomy of Responsibility Concepts

2011-11-14T07:00:00.000Z

Nicole Vincent

Nicole Vincent is one the best contemporary philosophers of responsibility. Her work deals with the intersection between neuroscience, criminal law, and theories of responsibility. As it happens, I originally intended to focus my research on these intersections too. Although my research focus has changed somewhat, I still try to read Vincent’s work regularly and when I do I’m always impressed by its content.

In this post, I want to share what I think is (to date) Vincent’s most significant contribution to the philosophy of responsibility: her structured taxonomy of responsibility concepts. In the first instance, this taxonomy attempts to distinguish between the various responsibility concepts that permeate the literature on this topic. Many authors have attempted similar conceptual breakdowns in the past. What makes Vincent’s attempt more interesting is that she goes on to identify the potential links (entailment relations etc.) between these responsibility concepts. I think this is a valuable exercise and hopefully you’ll think the same once you’ve read this post.

I’ve broken this post down into three main parts. The first part describes the six responsibility concepts identified by Vincent. The second part looks at Vincent’s proposed structural relationships between these concepts. And the third part considers the all-important role of norm-setting in theories of responsibility. For those who are interested, the article on which I’m basing this post can be found here.

1. The Six Responsibility Concepts
It’s long been recognised that the term “responsibility” is deployed in ordinary speech to cover a diverse set of concepts. For example, the famous legal philosopher HLA Hart once told a story about a reckless and incompetent ship’s captain whose ship was sunk. In the story, the word “responsibility” was used to describe the cause of the event, the captain’s incompetence, the captain’s duties and the captain’s liability. This level of conceptual ambiguity is unappealing.

Using Hart’s and similar stories as her guide, Vincent identifies six different concepts that tend to attract the “responsibility”-label. They are as follows:

Virtue-Responsibility: This covers descriptions of a person as being diligent, dutiful and so forth. In other words, it covers the idea of the “responsible person”, the one who has the virtuous character traits we would expect of a responsible agent.

Role-Responsibility: This covers the duties which are attached to a person in virtue of their institutional, social or moral position. In other words, it covers a person’s responsibilities: the things they are expected to do and which they are subjected to moral criticism if they fail to do. For instance, a ship’s captain is responsible for the well-being of his crew and the safety of his vessel.

Outcome-Responsibility: This covers the outcomes (events or states of affairs) for which a person is held responsible. For example, a murderer is held responsible for a murder; and a ship’s captain is held responsible for the sinking of his vessel.

Causal-Responsibility: This covers the causal links between events and states of affairs. For example, a storm might be responsible for a flood; a drought might be responsible for a famine; and so forth. In some ways, the causal sense of responsibility might be deemed metaphorical or analogical as opposed to real. But, as we shall see, causal judgments do play a crucial role in determining when and where our other responsibility concepts apply — so it’s not right to exclude it from a taxonomy of responsibility concepts.

Capacity-Responsibility: This covers the capacities (distinct from character traits) that an agent needs in order to be deemed responsible. For example, it has often been held that an agent needs a capacity for rational thought, for choice, and for voluntary decision-making in order to be responsible. The precise mix of capacities needed is not important here, all that matters is the general idea that certain capacities are needed.

Liability-Responsibility: This covers the punishments, sanctions or, more generally, the burdens that will apply to the responsible agent. For example, a person who is responsible for committing a crime, may be liable to spend some time in jail; or an employer who wrongfully dimisses an employee may be liable to pay damages to the employee.

These six responsibility concepts capture the key aspects of what we might call the responsibility ecosystem, i.e. the environment in which judgments about responsibility are actually made. Although we may have a desire to single out one of these concepts (e.g. outcome-responsibility) as being the “true” or “paradigmatic” sense of responsibility, Vincent suggests that there is little rationale for doing so. Each has an important part to play.

2. The Structural Relationships Between the Six Concepts
As I said at the outset, performing a conceptual breakdown on the idea of responsibility is nothing new, and while Vincent’s conceptual breakdown is perhaps more complete than others I have seen, her main contribution comes in her attempt to identify the structural relationships between each of the six concepts. By identifying these relationships, Vincent hopes to show how judgments about one kind of responsibility (e.g. role-responsibility) might shape or influence judgments about another kind of responsibility.

The following diagram captures the broad outlines of Vincent’s model of these structural relationships.

Here, roughly, is how the diagram is to be read: judgments about capacity-responsibility influence judgments about causal and role-responsibility; judgments about outcome-responsibility are derived from judgments about causal and role-responsibility; and judgments about liability-responsibility are derived from judgments about outcome and virtue-responsibility.

Vincent goes through these structural relationships in more detail in her article. Interestingly, she starts in the middle by looking at how outcome-responsibility depends on causal and role responsibility. From there, she works her way back to capacity-responsibility, before finally moving on to consider liability-responsibility. What follows is an abbreviated summary of what she has to say.

I. Outcome-Responsibility comes from Causal and Role-Responsibility: When we come across an event or state of affairs that seems morally troubling to us, we typically ask “who’s responsible?”, i.e.”who is responsibility for this outcome?”. In answering this question, we first try to trace the event or state of affairs to the actions of an agent or group of agents. This tracing exercise involves an assessment of causal responsibility. But causal responsibility is never enough for outcome responsibility. Why not? Because outcomes are typically the result of many causes and to single one out for particular attention is questionable unless you have some good reason for doing so. This is where role-responsibility becomes important: it determines the duties that apply to agents and makes it legitimate to single ascribe outcome responsibility to them.

II. Capacity Responsibility Shapes Causal and Role-Responsibility: An agent’s capacities determine what it is possible for them to do. As a result, responsibility concepts tend to track capacity. This happens in positive and negative ways. In the positive way, capacities tell us what kinds of roles it is appropriate for an agent to fulfill. In the negative way, a lack of capacity provides excuses for an agent. In particular, an incapacity can make it illegitimate to causally attribute an action to an agent.

III. Liability Responsibility comes from Outcome and Virtue Responsibility: Liability responsibility is, as noted above, concerned with the burdens and sanctions that it is fair to impose upon an agent. Vincent argues that the process of deciding whether and how much of a burden to impose on an agent is guided by outcome and virtue responsibility. Outcome responsibility might act as a necessary, but perhaps not sufficient, condition for liability responsibility. And then an agent’s virtue (i.e. how good or bad a person they are) determines how much of burden to impose on that agent.

Although the three structural relationships identified by Vincent are plausible, I can’t help but wonder whether other structural relationships are possible.

3. The Role of Norm Setting in Responsibility Concepts
Norm-setting plays an important role in determining the scope and applicability of the responsibility concepts outlined above. In this instance, norm setting is, unsurprisingly, the process of establishing some standard or ideal. The failure to obtain this standard opens one up to the possibility of moral criticism. Norm-setting often allows for some leeway, but it must be guided by moral considerations.

Vincent identifies three areas in which norm-setting plays a part in her structured taxonomy. The first is in relation to capacities - deciding which capacities impose duties upon an agent and which incapacities provide excuses is, in essence, a norm-setting task. The second is in relation to role responsibility - deciding which duties it is appropriate to impose on agent (depending on their social or institutional context) is a norm-setting task. Finally, the third is in relation to liability - deciding which kinds of burdens to impose upon an agent, as well as the extent of those burdens, is also a norm-setting task.

This brings us to end of this post. As we have seen, Vincent has broken responsibility down into six component concepts. She has also attempted to map the structural relations between these concepts and to identify the role that norm-setting plays in determining the applicability of those concepts. One may ask: what’s the use of all this? Vincent actually spends a long time trying to answer this question in her article (link is above), but the answer is relatively straightforward: it allows us to bring clarity to otherwise uncertain debates about “responsibility”, it shows the different kinds of question we can ask about an agent’s responsibility, and it gives us the outline of a process for resolving disputes about responsibility. For more on each of these, you’ll have to read the article.

Murphy on the Argument for Weak Natural Law (Part Two)

2011-11-13T09:00:00.000Z

(Part One)

Welcome to this, the second part, in a brief series of posts on Mark Murphy’s argument for the weak natural law legal thesis (WNLLT). As explained in part one, the WNLLT is that human laws (acts of parliament etc.) are defective if they do not provide decisive reasons for action. As was also explained in part one, Murphy does not try to defend the WNLLT for all human laws in the first instance. Instead, he tries to defend it for mandatory legal norms first, before then moving on to other kinds of legal norm.

His basic argument for the WNLLT about mandatory legal norms is the following:

(1) If a demand does not provide decisive reasons for action, then that demand is defective.

(2) Mandatory legal norms are demands.

(3) Therefore, if mandatory legal norms do not provide decisive reasons for action, they are defective.

The argument is valid, so to see whether or not it is successful we need to evaluate its premises. As you can see, premise (1) is a claim about the conditions of success for a demand and premise (2) is a claim about the nature of mandatory legal norms. Murphy tries to defend both of these claims. Let’s see what he has to say.

1. Are Mandatory Legal Norms Demands?
Let’s look at premise (2) first. The defend this premise, Murphy needs to start by fending off an obvious objection to it. The objection is that legal norms of any kind cannot be demands because in order for something to be a demand it must be said by a speaker. Since the law is not a speaker, it cannot issue demands. To put this more formally:

(4) In order for X to make a demand, X must be a speaker.

(5) The law (or legal system) is not a speaker.

(6) Therefore the legal system cannot make demands.

And, as a result, all the norms that form part of the legal system cannot be classified as demands.

Murphy does not take issue with the idea that only speaker can make demands. Part of me wonders why he doesn’t do so. I’m not entirely convinced that you need to be a speaker in order to make demands, but I accept I could be wrong about that. So I’m happy to follow Murphy and only consider the merits of premise (5).

Contrary to premise (5), Murphy thinks that the law (or legal system) can be classified as a speaker. He admits that the legal system is not a paradigmatic speaker, but he thinks it shares enough features with a paradigmatic speaker in order for it to be classified as a speaker. Interestingly, this means he is adopting a non-essentialist approach to classification. In other words, it means he does not think that classifying terms refer to essential properties that are shared by all members of that class. This is interesting because, as we shall see in a moment, he might be adopting a more essentialist approach to the classification of demands. Thus, his defence of premises (1) and (2) might be in tension with one another.

Anyway, we might illustrate Murphy’s argument by reference to the following diagram. The core consists of the paradigmatic members of the class of speakers, those who possess all the features we attribute to speakers; the penumbra consists of the non-paradigmatic members of the class of speakers, those who possess nearly all the features we attribute to speakers; and the periphery consists of borderline cases who possess some of the features of paradigmatic speakers. Murphy’s claim is that the legal system falls in the penumbra and thus can be classed as a speaker.

This is to speak in the abstract, perhaps excessively so. What are the properties possessed by paradigmatic speakers? Murphy mentions four: (i) they have beliefs; (ii) they have desires; (iii) they have normative standing, i.e. they must be open to moral appraisal for what they say; and (iv) they have causal efficacy to produce speech, i.e. they are able to issue declarations and make speech acts. The most obvious example of a paradigmatic speaker is, of course, a human being.

Murphy’s claim is that it is plausible to say: (a) that the law has normative standing (it can be morally appraised); (b) that it has causal efficacy (it can issue declarations and speech acts); (c) that it has beliefs and desires, albeit ones that are distributed across the human officials who make up the legal system. Thus, although it does not have the same properties as paradigmatic speaker, the law comes pretty close and it is right to call it a speaker.

In other words:

(7) In order for X to be classed as a speaker, it must possess all (or come close to possessing all) the following features: (i) beliefs; (ii) desires; (iii) normative standing; and (iv) causal efficacy.

(8) The law (or legal system) comes close to possessing all four features.

(9) Therefore, the law (or legal) system is rightly classed as being a speaker.

And therefore (5) is false.

This is only half the battle. We’ve provided reason for thinking the law is a speaker, now we must provide reason for thinking that mandatory legal norms are demands. Fortunately, the argument for this is much briefer. It starts by noting that a mandatory legal norm is best described by attributing to it all the features we would attribute to a directive speech act such as a demand. For example, when we come across a legal norm forbidding murder, it seems right to say that the legal system in issuing that norm “intends” for us not to commit murders, “wants” us to not commit murders and so forth. These are all the descriptors we would apply to someone asking us to close the door. What’s the best explanation for the similarity of these descriptors? Murphy argues that the best explanation is that they are essentially the same kind of thing.

So the argument here is as follows:

(10) When we come across a mandatory legal norm that tells us to do Y, we describe it as “intending”, “wanting” or “desiring” us to do Y — these being descriptors typically applied to directive speech acts such as demands.

(11) The best explanation for the coincidental use of descriptors is that mandatory legal norms are, in fact, equivalent to directive speech acts such as demands.

(2) Therefore, mandatory speech acts are demands.

The observant among you will note that (2) does not actually follow from the combination of (10) and (11). That’s because (10) and (11) don’t speak directly to what distinguishes a demand from the other types of directive speech act. This is easily fixed. What distinguishes a demand from, say, a request, is that the former is intended to be non-optional whereas the latter is not. So if we include “intended to be non-optional” among the descriptors of mandatory norms, we do get an argument that supports (2). This is done in the diagram below.

2. Defending Premise 1
Premise one claims that providing a decisive reason for action is one of the conditions of success for making a demand. I introduced the idea that speech acts had conditions of success attached to them in part one. To repeat the example I gave at the time, to make a successful assertion, the proposition that is asserted must be true. If the proposition is false, then your assertion is defective in some way (it doesn’t fail to be an assertion, it just fails to be a proper assertion).

So why should we accept that a successful demand must provide decisive reasons for action? Murphy offers the following argument. It has two parts to it. First, it claims that providing reasons for action is condition of success for making a directive speech act. And second, it distinguishes demands from other kinds of directive speech act. As noted above, the distinction seems to be that demands are non-optional. So then we ask: what would make a non-optional directive defective? The answer, according to Murphy, is: by not providing decisive reasons for action.

That gives us the following argument:

(12) Demands are a sub-type of directive speech act, distinguished from others on the grounds of their non-optionality.

(13) If you direct another to do X, you necessarily imply that they have some reason to do X.

(14) If a non-optional directive is to be non-defective, it must provide decisive reasons for action.

(1) Therefore, if a demand does not provide decisive reasons for action, then that demand is defective.

To be fair to him, Murphy tries to offer some support for each of the premises in this argument (his version of this argument is slightly more complex). He supports the first part of (12) by referring back to Searle’s taxonomy of speech acts and noting that demands seem to fit clearly within the directive branch of this taxonomy. He supports the second part of (12) by just referring to examples and arguing that non-optionality seems, obviously, to be the distinguishing mark of the demand.

More interestingly, he offers two lines of support for (13). The first line comes from a survey of all directive speech acts. If we perform such a survey, it seems obvious that all directive are designed to present another agent with reasons for action. The second line of support comes from something called the “Paradox Test”. Murphy asks you to imagine ordering someone to bring you a book while at the same time denying that this gives them any reason to do so. Murphy claims that this is obviously absurd and self-defeating. Thus, it must be the case that directives necessarily imply reasons for action.

The Paradox Test then forms the basis of the support for (14). The idea being that denying that a demand is supposed to give decisive reason for action would be self-defeating or absurd.

With each of the premises defended, it seems like Murphy can claim that his original argument for the WNLLT is sound.

3. Summing Up
As noted at the outset, Murphy’s illocutionary act argument for the WNLLT, in the form discussed here, only covers mandatory legal norms. There are, of course, lots of other types of legal norms such a power-conferring laws or legal rights. Murphy would like for the argument to be extended to cover these other norms as well. Indeed, he tries to do this in the relevant chapter of his book.

I won’t get into the full version of the extended argument here. Roughly, the idea is as follows. Other types of legal norm can be classified as other types of speech act (for example, a “right” can be classified as a “commitment”). These other types of speech act also have conditions of success attached to them. And, as luck would have it, providing decisive reasons for action is one of the conditions of success for these other types of speech act too.

I won’t try to evaluate this extended argument here.

Pinker and Per Capita Rates of Violence

2011-11-11T15:48:00.002Z

Like many, I was recently seduced into buying a copy of Steven Pinker’s latest opus The Better Angels of our Nature: The Decline of Violence in History and Its Causes, the essential thesis of which is neatly captured in the title.

I use the term “seduced” deliberately. I had no intention of reading or buying it originally. An 800-page tome, riddled with charts, and graphs, and complex statistical techniques, that tried to prove that violence was declining over time (and explain why this was happening) didn’t seem like my kind of thing. Added to this, was the fact that I’d already watched several talks in which Pinker laid out his basic argument and, so, it didn’t seem like I’d learn anything new by reading the book.

But the lure of the dead trees version proved inexorable in the end. Positive reviews started to pile-up — most noticeably the one from Peter Singer — and recommendations from normally sceptical bloggers appeared. My will was finally broken a couple of days ago when I spent a good thirty minutes reading bits and pieces of it while standing in my local Waterstones. I figured if it could hold my attention for that long, while I shifted uncomfortably from foot-to-foot in a drafty bookstore, it was probably worth buying.

In the end, I’m glad I did. It really does make for fascinating reading. There are so many interesting tidbits and asides that, even if one doesn’t agree with the overall thesis of the book, it’s well worth having a copy to dip in and out of. I say this despite not having read the entire thing (it is 800 pages long after all), but I feel confident that the 200 or so pages that I’ve read so far augur well for the remainder of it.

Anyway, that’s enough for the book-review portion of this post. For the rest of it, I want to take a good hard look at the backbone of Pinker’s thesis, namely: his claim that violence is declining over time. While I certainly couldn’t hope to evaluate all the lines of evidence Pinker offers to support this claim in his book, I do hope to offer some meaningful comments on one aspect of his methodology. An aspect that proves crucial to much of what Pinker has to say.

The aspect in question is his measuring the historical decline in violence by reference to the per capita rate of violence, as opposed to the total or aggregate level of violence. While the former may have gone down over the course of history (this is what Pinker tries to prove), the latter certainly has not (mainly because of the massive increase in population in the recent past). The question I want to ask is this: is Pinker right to focus on the per capita rate? In other words, is he right to say that violence has declined when the per capita rate has gone down, even when the total or aggregate level has gone up?

1. Pleasantville and Adamsville
I want to start by clarifying what’s at stake in answering this question. I do this by describing to two hypothetical towns and considering the differences between them.

Pleasantville: Pleasantville is a town of 10,000 residents. Although it has had problems with criminal gangs and violent crimes in the past, it has recently been experiencing a decline in the number of murders per year. At present, approximately 100 people are murdered every year in Pleasantville.

Adamsville: Adamsville is a town with exactly four residents. Adam, his wife Eve, and their two children. Adam and Eve have one new child every year but this leads to no overall increase in the population. Why? Because every year one of the children is murdered by their sibling.

Now let’s consider the per capita and aggregate levels of violence in both towns. The per capita rate of violence (specifically, murder) in Pleasantville is 1/100 or 1%; the per capita rate of violence in Adamsville is 1/4 or 25%. The aggregate level of violence in Pleasantville is 100 murders per year; the aggregate level of violence in Adamsville is 1 murder per year.

If we compare the two towns on the basis of the per capita rate, then Adamsville is clearly more violent. But if we compare them on the basis of the aggregate level, then Pleasantville is clearly more violent. Which comparison is more appropriate? And, more importantly, why should we care?

I take it that we should care because violence is a proxy measure for something that is morally undesirable (or, rather, for something that has moral disvalue). In other words, if for any pair of states of affairs (A and B), there is less violence in A than there is in B, then B is less morally desirable than A. Although Pinker doesn’t say this explicitly, I think he would agree with my moral undesirability reading of the issue. After all, he thinks the decline in violence is something to be celebrated and carefully analysed in order that it can be accentuated. It’s difficult to make sense of such an attitude if it’s not driven by a belief that less violence means less moral disvalue.

The fact that we care about violence because it is a proxy measure for moral disvalue actually helps to clarify the question we should be asking about Pleasantville and Adamsville. Instead of asking indirectly about the rate of violence, we should ask directly about the moral desirability of each town. To be precise, we should ask: which town is morally preferable? Is it Pleasantville or is it Adamsville?

In addition to clarifying the question we need to ask, the claim about moral desirability can also help us to clarify Pinker’s basic argument. As is clear from his book, Pinker wants us to believe that it’s Pleasantville that is morally preferable to Adamsville, and he wants us to believe this because the per capita rate of violence in Pleasantville is lower than it is in Adamsville. In other words, he wants us to accept the following kind of argument:

(1) If the per capita rate of murder is lower in Town A than it is in Town B, then Town A is morally preferable to Town B.

(2) The per capita rate of murder is lower in Pleasantville than it is in Adamsville.

(3) Therefore, Pleasantville is morally preferable to Adamsville.

Instead of accepting this kind of argument:

(4) If the overall number of murders is lower in Town A than it is in Town B, then Town A is morally preferable to Town B.

(5) The overall number of murders is lower in Adamsville than it is in Pleasantville.

(6) Therefore, Adamsville is morally preferable to Pleasantville.

These arguments directly contradict one another. That is to say, they are counterarguments to one another. For the time being, I’ll ignore the pro-Adamsville argument and focus on the pro-Pleasantville argument that Pinker makes. A couple of words about this argument are in order here. First, although I explain it by reference to the murder rates in two hypothetical towns, this argument could stand in for the basic argument that is presented throughout Pinker’s book Better Angels. What’s interesting is that Pinker focuses nearly all his attention on defending premise (2) of the argument. This is unsurprising: Pinker is a scientist so he is well-placed to investigate an empirical claim such as that presented in premise (2). I commend him for doing so. But to focus solely on (2) is unsatisfying because it leaves the crucial normative claim in premise (1) unsupported.

Pinker is obviously not unaware of this issue, and does spend some time addressing the kinds of issues one would need to address in order to defend (1) over (4). The problem is that he is all to brief in his treatment of these issues (one paragraph on pg. 47 is all I found so far). I want to correct this by giving these issues a more fulsome treatment.

2. The Pro-Adamsville Argument
Let’s look first at the pro-Adamsville argument. Premise (4) of this argument is claiming that the overall number of murders is what counts from the moral point of view. Is there any moral theory that would allow us to endorse this claim?

Perhaps. Utilitarianism is the view that we ought to maximise the amount of good stuff in the world, and minimise the amount of bad stuff. While this blog post is not the place to work out what kinds of stuff are good and what kinds are bad, it can be safely assumed that murders most definitely fall within the “bad stuff”-category. So, working from a utilitarian principle, we might be able to provide some support for (4). As follows:

(7) A state of affairs with a lower level of bad stuff in it is morally preferable to a state with a higher level bad stuff in it.

(8) Murders count as being bad “stuff”.

(9) Therefore, a state of affairs with fewer murders is morally preferable to a state of affairs with a more murders.

This could then be used to support (4).

But even if we grant that utilitarianism is correct, this argument fails. Why so? Because (7) is not an accurate representation of the utilitarian thesis. (7) only talks about the level of bad stuff in the world, it does not talk about the level of good stuff. Or, to put it more precisely, it does not talk about the aggregate level of good (a figure which would add together the good stuff and the bad stuff to get a total sum). If we revise (7) so that it speaks of the aggregate level of good, instead of the overall level of bad stuff, we get the following:

(7*) A state of affairs with a greater aggregate level of good stuff is morally preferable to a state of affairs with a lesser aggregate level of good stuff.

The problem is, once we complete this revision, it becomes much less obvious how we can move from (7*) to (4). Why is this? Well, because (4) only focuses on the overall level of murder (which is bad), it does not consider the good stuff that might be associated with a larger number of murders. It could be that a town with a large number of murders has an even larger number of good things going on it. These good things could offset the effect of the number of murders. Indeed, this suggests an independent line of argument for (3), one that I won’t get into here.

Is there any other way to justify (4)? Possibly. I can imagine working my way from some kind of precautionary principle to (4). The precautionary principle would have to state that when making moral evaluations we should care about minimising bad stuff, not about maximising aggregate levels of good. In other words, it would have to explicitly rule out the potential offsetting power of the good stuff. We could phrase it as follows:

(10) When it comes to the moral evaluation of states of affairs, we should focus exclusively on minimising the level of bad stuff, irrespective of the good stuff that might thereby by affected.

Call this the minimisation of bad stuff-principle (MBSP for short). Accepting that murders are bad (premise 8, above), we could indeed use this principle to support (4). The problem with doing so is threefold.

First, even if we accept that murders are bad, we would have to acknowledge that there are other bad things out there too. It could be the case that minimising the number of murders increases the number of these other bad things. Thus, we can’t escape the aggregative question simply by focusing exclusively on the bad stuff: we still need to know the aggregate level of bad stuff. Admittedly, the claim that reducing the number of murders might increase other bad things may not be very likely, but it is possible and that seems to be enough to block the inference from (10) to (4).

(11) Reducing the number of murders might increase the number of other bad things.

Second, the MBSP could lead to absurd conclusions. In particular, it could lead to the conclusion that a world with no people in it is morally preferable to a world with 1 or more people in it. Think about it: a world with no people minimises the number of bad things that might happen more so than a world with only one person in it. I would argue that this is absurd and that a principle that allows us to reach absurd conclusions of this sort has little to recommend it. (Note: there are some who disagree with this. I have discussed their arguments before).

(12) The MBSP leads to absurd conclusions. A principle which leads to absurd conclusions should be rejected.

Finally, while I accept that precautionary reasoning of this kind is plausible in some instances, particular when dealing with unknown potential goods (e.g. the goods associated with speculative technology), I submit that when the potential goods are known, it loses this plausibility. When it comes to assessing relative merits of our two towns (Pleasantville and Adamsville) it seems like we are dealing with potential goods that are known, not potential goods that are unknown.

(13) The MBSP derives its plausibility from precautionary reasoning, this kind of reasoning is plausible when the potential goods associated with a state of affairs are unknown. When the potential goods are known, it loses its plausibility.

To sum up, the pro-Adamsville argument seems to have little going for it. This does not, however, mean that Pinker is home and dry. In addition to showing that the pro-Adamsville argument is implausible, he needs to show that the pro-Pleasantville argument is plausible. Can this be done?

3. The Pro-Pleasantville Argument
I’ve already suggested one way in which we could endorse the pro-Pleasantville conclusion, namely: by adopting an aggregative utilitarian principle and arguing that Pleasantville, despite its high number of murders, has a higher overall level of good than Adamsville. Note, however, that this kind of argument doesn’t endorse the per capita measurements that Pinker uses to make his case. Is there another argument that does?

Have a look at what Pinker has to say about this (pg. 47):

…[O]ne could reason that part of the bargain of being alive is that one takes a chance at dying a premature or painful death, be it from violence, accident, or disease. So the number of people in a given time and place who enjoy full lives has to be counted as a moral good, against which we calibrate the moral bad of the number who are victims of violence. Another way of expressing this frame of mind is to ask, “If I were one of the people who were alive in a particular era, what would be the chances that I would be a victim of violence? The reasoning in this second frame of mind, whether it appeals to the proportion of a population [that are victims of violence] or the risk to an individual, ends in the conclusion that in comparing the harmfulness of violence across societies, we should focus on the rate, rather than the number, of violent acts.

There are the bones of an interesting argument in this passage. Pinker is saying that when evaluating the moral desirability of a two or more societies, we should ask ourselves the question: which society would we prefer to live in? In addition to this, he’s saying that when we answer that question, we’ll focus on per capita rates of violence not on overall numbers. Why? Because what matters is our personal risk of dying, not the total number of deaths, and personal risk is captured by the per capita figure, not the total number.

To clothe this in a more moralistic garb, I might appeal directly to a constructivist or Rawlsian set of principles. The idea being as follows. When comparing the moral desirability of two states of affairs, we should ask: which state of affairs do I have most reason to endorse? Or, to put it another way, if I were placed behind a Rawlsian veil of ignorance, and I was asked to choose between two societies knowing only the total number and per capita rate of murders in that society, which one would I choose? The answer seems obvious in both instances: you would choose the society in which you had less risk of dying, i.e. the one with the lower per capita murder rate.

In formal terms:

(14) The state of affairs that one has most reason to endorse (from behind a veil of ignorance) is the morally preferable state of affairs.

(15) All other things being equal, one has most reason to endorse the state of affairs in which one has less risk of being killed.

(16) One has less risk of being killed in the town with the lowest per capita rate of murder.

(17) Therefore, if Town A has a lower per capita rate of murder than Town B, then Town A is morally preferable to Town B.

Now, (17) is equivalent to (1), so this argument really does give us grounds for endorsing the pro-Pleasantville argument. As well as this, it gives us reason to endorse Pinker’s methodology throughout Better Angels.

But is this argument above reproach? Not quite. Note how I’ve added a ceteris paribus (all other things being equal)-clause to the start of premise (14). Why did I do this? Well, I did so because I can imagine situations in which the risk of being killed is not the overriding variable in deciding which state of affairs one has most reason to endorse. For instance, I might choose to go for real sky-diving instead of virtual sky-diving, despite the fact that the real version carries a greater risk of dying than does the virtual one. I would do so if there were other goods (e.g. exhilaration, sense of achievement, bragging rights) associated with real sky-diving that I couldn’t get out of virtual sky-diving.

This suggests that the pro-Pleasantville argument might fall victim to the same kinds of problems as did the pro-Adamsville argument. But we needn’t despair too quickly. After all, one would only have more reason to endorse a state of affairs with a higher risk of dying attached to it if that risk of dying had some deep causal connection to the factor that made that state of affairs the more reasonable choice. To go back to the sky-diving example, I only have more reason to go for the real sky-diving if I think the goods of exhilaration, sense of achievement and bragging rights are deeply connected to the real activity.

When it comes to choosing which town is morally preferable, I have no reason to think that a high per capita murder rate has some deep causal connection to moral goods that (a) could not be obtained in a town with a lower per capita murder rate and (b) override the moral evil of the murder rate. Thus, it would seem like the ceteris paribus clause is met in this particular instance. And so Pinker’s methodology is, as far as I can tell, appropriate.

Murphy on the Argument for Weak Natural Law (Part One)

2011-11-10T15:30:00.000Z

Those who follow this blog regularly will know that I’ve recently been doing some posts on natural law. By and large, the posts have been focusing on natural law arguments against same sex marriage. Today, I offer yet another post on natural law, but with a different focus. This time I’ll be looking at the proposed connection between natural law and legal theory.

Some people might wonder why I call this a “proposed” connection. Surely, I hear them say, natural law and legal theory are deeply connected? After all, natural law is about the law, isn’t it? Yes and no. Natural law theory is concerned with laws, but these are not necessarily the kind of laws you might have in mind. Natural law is, primarily, concerned with ethical laws, i.e. rules that govern how we ought to behave. It is only secondarily concerned with human laws, i.e. rules set down in acts of parliament or in written constitutions. It is this secondary concern I want to look at today.

In so doing, I will use Mark Murphy’s excellent little book Natural Law in Jurisprudence and Politics as my guide. In the book, Murphy clearly distinguishes between the ethical and legal sides of natural law theory. He also presents a rather interesting argument — the illocutionary act argument — for a weak natural law theory of human law. This post and the next are dedicated to setting out this argument and evaluating some of its components.

Warning: when I say this is an interesting argument, I am being sincere, but I’m well aware that the interest is possibly only apparent to those who care about legal philosophy. If this is not something that interests you, then I you may be disappointed.

1. Strong and Weak Natural Law Theses
To understand Murphy’s argument, we need first to understand the differences between the two kinds of natural law theory. In general, natural law theory is associated with the idea that there is a higher law, one that sits above and set constraints on anything that might be created by human beings. This general idea is cashed out in more specific ways by two different branches of natural law theory. They are as follows:

Natural Law as a Moral Theory: As a moral theory, natural law is associated with two ideas: (i) there is something called human nature; and (ii) this nature means that there are certain basic goods that we all have reason to pursue. In other words, it is associated with the idea that our nature determines what it is morally acceptable/desirable for us to do. This is the version of natural law that I’ve been discussing up til now.

Natural Law as a Legal Theory: As a legal theory, natural law is associated with the idea that a human law must be backed by decisive reasons for action. In other words, it is associated with the idea that there must be compelling reason to follow the law. What this actually means for human law can be spelled out in strong or weak theses, as follows:
The Strong Thesis: If a human law fails to be backed-up by decisive reasons, then it is not properly called a “law” at all. This is captured, imperfectly, in the famous maxim: lex injusta non est lex (an unjust law is no law at all).

The Weak Thesis: If a human law fails to be backed-up by decisive reasons, then it can still be called a “law”, but it must be recognised as a defective law.

This theoretical breakdown is illustrated in the diagram below. As can be seen, there are obvious connections between the legal and moral branches of natural law theory. After all, if the moral theory is correct, then the decisive reasons for action that are needed by the legal system will be found through an investigation of human nature and the basic goods.

Although these connections are obvious, they are not necessary. That is to say: one could endorse the legal theory without having to endorse the moral theory, and vice versa. This is an important consideration to bear in mind when assessing the merits of Murphy’s argument. It is to that argument — which is called the illocutionary act argument — that we now turn our attention.

2. Illocutionary Acts
The illocutionary act argument (ILA) is offered in support of the weak natural law legal thesis (WNLLT). While the term “illocutionary act” is common in the philosophy of language, I suspect it will be alien to many. Thus, a definition would be in order. Alas, there doesn’t seem to be a clear, agreed-upon definition. So perhaps the best way to understand the concept is by considering examples. To this end, it is worth looking at the following taxonomy of illocutionary speech acts (originally developed by John Searle):

Assertives: These are speech acts that commit the speaker to the truth of the proposition being asserted.

Directives: These are speech acts that are intended to cause the hearer to perform some sort of action, e.g. requests, demands, advices.

Commissives: These are speech acts that commit the speaker to some future course of action, e.g. promises.

Expressives: These are speech acts that express the speaker’s attitudes toward certain objects, events or states of affairs, e.g. congratulations.

Declaratives: These are speech acts that create something or bring about a change in something, e.g. baptisms, marriages.

There are two important things to note here. First, there is the general idea that speech can be an act, i.e. that it can cause changes in the world. This is a remarkable idea since speech doesn’t seem to have any intrinsic causal powers. For example, my telling you to close the door does not, automatically, result in the door being closed. It is only if you understand my request and are willing to comply with it that such changes can be brought about. Thus, speech has active powers only to the extent that people can hear, understand and comply with it. And people can only do this if they have minds.

Second, there is the idea that different kinds of speech act have different conditions of success attached to them. If you wish to successfully perform an assertive speech act, you must make sure that the proposition you assert is actually true. If it is not actually true, then your assertion is defective.

This notion of conditions of success forms the backbone of Murphy’s ILA. In essence, his claim is that human laws are particular kinds of speech act, and as particular kinds of speech act, they have conditions of success attached to them. If they fail to meet these conditions of success, they are defective.

3. The Illocutionary Act Argument
All of which raises the question: what kind of speech act are human laws? In answering this question, Murphy initially limits his argument to mandatory legal norms. These are the kinds of legal norms that usually spring to mind when we are asked to consider the law. Criminal laws, for example, are mandatory in nature: you are not allowed to murder someone. Compliance with this norm is not supposed to be optional. If for some reason you do not comply with it, you will be punished.

Mandatory norms are to be contrasted with power-conferring laws such as the law relating to contract or marriage-formation. These laws allow you do things, such as create legally-enforceable promises, but they are optional in nature. Nobody is forcing you to get married or sign contracts, but if you do so, you will fall under the ambit of the law. While Murphy thinks the ILA can be extended to cover such laws, he thinks it best to make this case after developing the ILA for mandatory legal norms.

So now we are faced with a new question: what kind of speech act is a mandatory legal norm? The answer, according to Murphy, is that a mandatory legal norm is a demand. It is something that asks us to do one thing to the exclusion of other things, it is not a mere request. As such, a demand must provide decisive reasons for action. This realisation leads to the following basic version of the ILA:

(1) If a demand does not provide decisive reasons for action, then that demand is defective.

(2) Mandatory legal norms are demands.

(3) Therefore, if legal norms do not provide decisive reasons for action, they are defective.

Of course, (3) is equivalent to the WNLLT, so if the the argument is sound, Murphy has made his case. To determine whether the argument is, in fact, sound we need to examine premises (1) and (2) in more detail. This is something we will do in part two.

Brooks on Retributivist Arguments against the Death Penalty (Part Two)

2011-11-02T00:16:00.000Z

(Part One)

This is the second (and final) part in a brief series of posts on Thom Brooks’s article “Retributivist Arguments against Capital Punishment”. The article is noteworthy for its attempt to identify an objection to the death penalty that is derived from retributive principles. This is noteworthy because retributive principles are more typically used to support the death penalty. The series of posts follows and builds upon Brook’s article.

Three things were accomplished in part one. First, the nature of the inquiry was clarified: for the sake of argument, we are assuming that death can be a just punishment in at least some circumstances. We are trying to figure out whether, despite this, there are still retributive reasons for objecting to the death penalty. On the face of it, this seems like a project that is doomed to failure: how can we hope to find an objection to something we already accept as being just? To see why this is not futile, we need to appreciate the distinction between the death penalty as a system of punishment, and the death penalty as a form of punishment in particular cases. The latter might be justified for retributive reasons, but the former might not.

The second thing that was accomplished in part one was the clarification of retributivism. Retributivism was defined as a theory of punishment that is committed to two key theses: (i) the intrinsic goodness thesis; and (ii) the proportionality thesis. The first thesis claims that punishment is, in some cases, an intrinsic good; the second thesis claims that punishment must be proportionate to the level of wrongdoing. Brooks added a third thesis to this: (iii) the distributional thesis. This thesis claimed that the purpose of retributive punishment was to correct for the unfair advantage that a wrongdoer gained through his/her act of wrongdoing. I argued that the inclusion of this thesis within the concept of retributivism was undesirable for a number of reasons, not least of which was that the “unfair advantage”-concept of wrongdoing seemed counterintuitive.

The third thing that was accomplished in part one was the dismissal of the racial bias argument against the death penalty. As we saw, the fact that the criminal justice system arbitrarily selects a sub-set of those who are actually guilty for execution is not a problem for the retributivist. All that matters from the retributivist perspective is that those who are executed are: (a) guilty of some crime; and (b) death is the proportionate punishment for that crime. Indeed, when confronted with the problem of racial bias, a retributivist is likely to call for more executions, not less.

Might they change their minds if those selected for execution were not guilty? That’s the question we’ll be considering today.

1. The Wrongful Conviction Problem
When I discuss the death penalty with people, the single most common objection I get to it is what I am calling the problem of wrongful conviction. My anecdotal experience is backed up by a recent opinion poll (Angus Reid, August 2011) in which 83% of respondents who objected to the death penalty did so on the grounds of this problem.

So what is the problem? It comes it two parts. The first part is the general problem of wrongful conviction for the retributivist. The second part is the specific problem of wrongful conviction for the retributivist defender of the death penalty. We’ll focus on the general problem for now.

The general problem can be phrased thusly: the criminal justice system has been known to wrongfully convict and punish people for their crimes. We have no reason to think that this trend of occasional wrongful conviction will not continue into the future. Retributivists only think punishment is justified when it is imposed on the guilty. Therefore, they would have to accept that at least some of the punishments dished out by the criminal justice system lack moral justification.

To put it more formally (numbering follows from part one):

(6) It is morally illegitimate to impose a punishment on someone who does not deserve it.

(7) The criminal justice system will, at least occasionally, wrongfully convict and punish an innocent person.

(8) Therefore, at least some of the punishments imposed by the criminal justice system will be morally illegitimate.

Let’s pause here for a moment to see where this might be going. The idea is that premise (6) should be acceptable to a retributivist. Punishment involves causing harm to another person. In general, causing harm is morally illegitimate. It only loses this illegitimacy if some justification can be found for it. A retributivist thinks such a justification can be found in the concept of desert for culpable wrongdoing. We’ve accepted this for sake of argument. But when there is no culpable wrongdoing, even a retributivist would have to reject punishment because of the harm it causes. Indeed, you could argue that this is a necessary component of retributivism.

Premise (7) seems to be well-supported. We have historical examples of wrongful convictions to draw upon to illustrate this. Perhaps the most conspicuous and persuasive set of data can be found in the work of the Innocence Project, but there are other examples as well (I always like to talk about the Guildford Four and the Birmingham Six in this regard). For all this, the number of wrongful conviction might be quite low, and there are those who would reject the idea that there will be any and I’ll need to talk about them later on.

Premise (8) follows straightforwardly enough, but it is relatively uninteresting in itself. What we really want to know is: what follows from the fact that at least some punishments will be morally illegitimate? After all, nothing in what has been said so far touches upon the death penalty. To get to some conclusion about the propriety of the death penalty, we’ll need to add some more premises to the argument.

2. Building Upon the Problem of Wrongful Conviction
Suppose we added the following premise to the preceding argument:

(9) We ought not to endorse any system of punishment that will, even if only on occasion, be morally illegitimate.

Then we would be forced to reached this conclusion:

(10) We ought not to endorse the criminal justice system (from 8 and 9).

But surely this would mean we had gone too far? Are we really going to abandon the entire system of punishment because there may occasionally be wrongful convictions? Some might be inclined to reach that conclusion, but I suspect that would be for reasons not presented in this argument. So for the majority of people (10) really would be too much.

But if (10) seems like too much, why do people point to the problem of wrongful conviction when discussing the death penalty? I mean, if wrongful convictions do not pose a problem for systems of punishment in general, why think they would pose a problem for the death penalty in particular?

To answer this, we must pay close attention to the differences between the death penalty and other forms of punishment. The chief difference, and the one I assume most people will point to, is the finality of death. If we kill someone who is innocent, we cannot try to make amends or recompense them for the ill effects of their punishment. They are dead and we cannot bring them back. On the other hand, if we wrongfully imprison somebody we can at least try to make some amends or offer some compensation to them.

This suggests the following argument to me:

(11) We can only endorse a system of punishment that is occasionally morally illegitimate if those who suffer from the ill-effects of that illegitimacy can be recompensed.

(12) Those who suffer the ill-effects of the death penalty system cannot be recompensed.

(13) Therefore, we cannot endorse the death penalty system of punishment (from 7, 11, and 12).

This argument prevents us from reaching the extreme conclusion of (10), but still manages to impugn the death penalty. What’s more, since the argument ultimately links back to premise (6), it works from principles that are acceptable to the retributivist.

It’s worth noting that I’ve made no reference to the “reversibility” or “non-reversibility” of particular forms of punishment in this argument. This is despite the fact that lots of people present pretty much the same argument using those terms. I’ve avoided them for the simple reason that some pro-death penalty advocates respond to those arguments by claiming that 20 years of wrongful imprisonment is no less irreversible than a death sentence. After all, you can’t give them back those 20 years. I think this is right, but that it’s irrelevant. The reason we should be more concerned about errors in the administration of the death penalty than we should be about errors in the administration of other forms of punishment is that there’s no opportunity to make amends or offer compensation to the person who was wronged in the case of the death penalty. Talk of reversibility is a needless distraction from the central moral issue.

3. Final Comments
So the problem of wrongful conviction, in its expanded form, provides one retributivist argument against the death penalty system. Is the argument ultimately persuasive? Well, that depends on how serious you think the problem of wrongful conviction really is. As it happens, some people don’t think its that serious at all.

For example, I’ve noted in some online forums, and even in some academic papers, that death penalty advocates will reject the notion that there has ever been a wrongful execution in the United States (no doubt there have been in other countries). The idea seems to be that, for all its delays and multiple appeals, the death penalty litigation system in the U.S. dramatically reduces the risk of wrongful conviction. Furthermore, improvements in forensic science are thought to reduce the risk even further. The challenge then is for anti-death penalty advocates to point to one case in which there has clearly been a wrongful execution. This challenge might be rhetorically effective, but, for all that, some risk surely remains. And maybe the risk is enough for the argument to go through.

Although my own opinions on the wrongful conviction argument are, no doubt, clear by this point, I will make one important concession to those who reject it. It is only a “in fact”-argument, not an “in principle”-argument. In other words, it only points to contingent reasons for the retributivist to reject capital punishment; it doesn’t provide any necessary reasons for rejecting it. It is possible to imagine a system in which there would never be wrongful convictions. How realistic that is, is another matter. I suspect we are long way from a perfect system, so I think the wrongful conviction argument will be with us for another while at least.

Brooks on Retributivist Arguments against the Death Penalty (Part One)

2011-10-29T00:03:00.002+01:00

This brief series is inspired by Thom Brooks’s article “Retributivist Arguments against Capital Punishment”. The article is interesting for its attempt to present a solid retributivist argument against the death penalty. And this is interesting because retributivist arguments are usually used to support the death penalty.

I say this series is “inspired” by Brooks’s article because I’m not going to directly follow everything Brooks’s has to say. He focuses his attention on arguments offered by specific theorists (McDermott and Nathanson) and considers some competing interpretations and constructions of what they say. I’m going to focus purely on the arguments I found to be most interesting, and, in addition, I’m going to speculate and expand upon on some possible responses that are not covered by Brooks.

I’m going to spread the discussion over two posts. In this post, I will present the basic retributivist argument in favour of the death penalty and I will comment on some of the different definitions of retributivism. I will then discuss the racial bias-argument against the death penalty. In the next post, I will discuss the uncertainty-argument against the death penalty. This is the argument that Brooks finds most attractive because of its appeal to retributivist principles. Finally, again in the next post, I will discuss a range of responses to the uncertainty-argument.

1. The Retributivist Argument in Favour of the Death Penalty
I’ve presented this argument in a previous post, but in order to make this post as self-contained as possible, here is the basic retributivist argument in favour of the death penalty:

(1) It is right and proper for the guilty to be punished in proportion to their level of wrongdoing.

(2) Death is the proportionate punishment for those who are guilty of some crimes.

(3) Therefore, it is right and proper for those who are guilty of some crimes to be put to death.

Since the focus in this post is on retributivist arguments against the death penalty, we are going to assume the truth of premise (1). That is to say, we are going to assume that retributivism is a morally defensible theory of punishment. As it happens, this is not an assumption I’m generally inclined to make. But I’m willing to make it here in order to see the different conclusions that can be derived from a retributivist principle. In addition to this, we are going to assume that (2) is, on at least some occasions, true. In other words, we are going to assume that death *can* be a proportionate punishment. As against this, we are going to consider the possibility that there are, nevertheless, good retributive reasons for thinking that the death penalty system ( i.e. the legal machinery used to impose the death penalty) is illegitimate.

This raises the question of what exactly do we mean by “retributivism”. Up to now I’ve been holding that retributivism is made up of two key theses:

The Intrinsic Good Thesis: Punishment of those (and only those) who engage in culpable wrongdoing is an intrinsic good, i.e. it is good apart from any positive or negative consequences that might flow from it.

The Proportionality Thesis: Punishment is only justified when the punishment is proportional to the crime.

But Brooks’s mentions a third thesis of retributivism (although note: he doesn’t actually explicitly mention the other two, though I think something like them is implied by what he says). This thesis has to do with the purpose of retributive punishment:

The Redistribution Thesis: Punishment is designed to take away the unfair advantage gained by the person who broke the rules.

While this thesis has some attractive features — I particularly like how it links punishment to distributive justice, but why I like this is a story for another day — I have some concerns about it. These concerns may seem petty at first glance, so I need to articulate them carefully.

My chief concern with the redistribution thesis is my uncertainty over the role that the thesis plays in the justification of retributive punishment. The other two theses clearly have a role to play in justification. Together, they imply that punishment is only justified when it is (a) limited to those who are guilty and (b) proportionate. Do we add to this a further requirement that punishment is only justified if it takes away the unfair advantage? It’s not clear because Brooks’s speaks only of redistribution as being the “purpose”, not the justification for retributive punishment. This may seem like a slightly pedantic point, but I think there is a real need for clarity here since there is a whole other theory of punishment — called the “restitutionary theory” — that would seem much more comfortable with the redistribution thesis.

Also, I wonder whether the redistribution thesis “stacks the deck” against the death penalty. After all, killing someone seems a bit excessive if the goal is merely to take away the unfair advantage they gained by committing a crime. So it would seem like the death penalty automatically fails the redistribution test. I wouldn’t like to stack the deck against the death penalty here since the goal of this exercise is to discover whether there are any good retributive reasons against the death penalty: to include within the definition of retributivism a criterion that automatically excludes the death penalty would defeat this goal.

Finally, I’m not sure that “unfair advantage” is the best concept to employ when it comes to understanding criminality, particularly the kinds of criminality traditionally covered by the death penalty. For example, is it really true to say that someone who rapes and murders a child thereby gains an “unfair advantage” over those who do not? Surely not. To say that something has bestowed an “unfair advantage” is to signal a positive attitude toward that thing: it is to say that the person who has gained it has gained something that we ourselves would like to have. But then it would follow that, in order to endorse the redistribution thesis, we would have to believe that raping and murdering children is a positive thing. Since this is clearly not what we believe, it must be wrong to say that this kind of criminality bestows an unfair advantage. (It’s possible that other forms of criminality do.)

For these reasons, I’m inclined to leave the redistribution thesis out of the definition of retributivism. As it happens, I don’t think this will impinge upon the remainder of the discussion.

2. The Racial Bias Argument
A popular argument against that death penalty system holds that because the system is racially biased — i.e. because you are more likely to be executed if you are an African American — it is morally illegitimate. As it happens, I’m not sure whether this racial bias actually exists. (I imagine it does, but I’ve read studies suggesting that the race of the victim plays a greater role in determining who gets sentenced to death than does the race of the defendant.) But I don’t really care for the purposes of this blog post. As was the case with the truth of retributivism, I’m going to assume it’s true and see what follows.

The racial bias line of reasoning is particularly popular in the United States, mainly for constitutional reasons. Now, I’m no scholar of the US constitution, but I know there is an amendment — the 14th — which includes a statement about “equal protection of the law”, and I know that this amendment has been called into service in arguments against the death penalty on racial bias grounds (see McCleskey v. Kemp for an unsuccessful example of this).

But we’re not interested in these legal arguments; we’re interested in moral arguments. To be precise, we’re interested in retributivism and whether the racial bias argument can provide a retributivist reason to reject the death penalty. To investigate this we need first to figure out the reasons why racial bias is thought to make the death penalty morally illegitimate and then we need to see whether these reasons are in any way connected to retributivism.

One reason we might have a problem with the bias is that the bias might lead to erroneous legal decisions, i.e. it might result in people who are not guilty of wrongdoing being mistakenly selected for execution. We’ll leave this possibility to the side for one moment, since we’ll consider a separate argument based on this problem in a moment. This means we’ll assume that, despite the bias, it’s still only guilty people that are selected for execution. The problem is that it’s just a subsection of those people that are being selected. Stephen Nathanson uses the following analogy to make the point:

Suppose there is a highway patrol officer who rightly identifies everyone that is guilty of speeding, but only selects from those people the bearded ones for speeding ticks.

Does this seem wrong? Nathanson thinks so, and I’d be inclined to agree. To use an arbitrary criterion like the presence or absence of facial hair to pick who suffers for the legal consequences of their acts definitely seems morally circumspect. Applied to the death penalty system, the analogy works like this: to arbitrarily select only those guilty persons with a particular skin colour is morally circumspect. But is this because it is incompatible with retributivism? Consider the following:

(1) It is right and proper for the guilty to be punished in proportion to their level of wrongdoing.

(2) Death is the proportionate punishment for those who are guilty of certain crimes.

(4) Because of racial bias, the death penalty system only selects an arbitrary subset of those who are guilty for execution.

(5) Therefore, the death penalty system is illegitimate.

The first two premises here are just taken from the original argument. They are the bedrock of the retributive theory under examination. Premise (4) is new and states explicitly the problem of racial bias. (5) then is the conclusion that proponents of the racial bias argument would like us to reach, but does it follow from the premises? Clearly not. A retributivist thinks it is right and proper for the guilty to be punished. The mere fact that a subset of the actually guilty are arbitrarily selected for execution by the legal system is not enough reason to reject the legal use of execution. After all, the guilty are still being punished appropriately. It’s just that not all of them are.

To sum up, the problem of racial bias provides no retributivist reason for rejecting the death penalty system. Confronted with the problem, the retributivist can easily turn around and argue that it merely provides reason for executing more people. If we think the racial bias problem does provide reason for rejecting the death penalty system, this is because we are adopting a non-retributive principle for evaluating the system.

In part two, we’ll see whether a retributive argument against the death penalty system is possible.

The Craig-Law Debate: Mapped

2011-10-25T21:05:00.001+01:00

,

I don't usually do links-posts on this blog, but I thought I'd make room for an exception this time. Thrasymachus (the Polemical Medic) has done a wonderful job mapping out the Craig-Law debate that occurred on Monday 17th of October. I highly recommend taking a look. I used to think I was okay at doing argument maps, but I think I've definitely been bested.

The Craig-Law Debate - Argument Map

Enjoy!

What can Law's Evil God Challenge Do?

2011-10-20T20:32:00.002+01:00

Stephen Law debated William Lane Craig on Monday night. I didn’t go, though I would have liked to. I did, however, get the chance to read Law’s contributions to the debate (which he posted on his blog) as well as some other internet reviews and discussions of the event. Public debates of this sort are never particularly illuminating — if you want to be illuminated there’s no substitute for reading the primary academic literature and thinking about it for yourself — but they may serve some purpose. They may encourage people to view something from a different perspective, to take their first steps toward self-learning, and to appreciate different viewpoints.

As might be expected, there is much bias affecting the internet reviews and discussions of Monday night’s event. Still, from what I’ve read it seems that Law did relatively well in the debate, at least when compared to Craig’s former opponents. He had a strategy, he stuck to it, and didn’t get bogged down in peripheral issues (for instance, he studiously avoided any discussion of Craig’s Kalam argument). That said, there is some confusion about the precise nature of his strategy and what it was intended to do.

The strategy in question centred on the Evil God Challenge (the EGC, for short). This is something Law has written about in the past, and his output on it includes a rather good article published a couple of years back in the journal Religious Studies. The problem with Law’s use of the EGC is that the EGC is open to several interpretations. In this post, I want to review three plausible interpretations of the EGC and pass some comments on which I think is the strongest. Before getting to those three interpretations though, I want to briefly outline the main features of the EGC.

1. The Main Features of the Evil God Challenge
The EGC is, in effect, a clever inversion of the traditional evidential problem of evil. The evidential problem of evil runs something like this:

(1) If an all-powerful, all-knowing, all-good being existed, that being would not allow gratuitous suffering to occur.

(2) Gratuitous suffering probably does occur.

(3) Therefore, (probably) an all-powerful, all-knowing, all-good being does not exist.

The argument is evidential in that it does not claim that there is a logical inconsistency between God and evil, but, rather, that there is strong evidence against the theistic hypothesis. There are two key elements to the argument. The first is the meaning of the term “gratuitous suffering”, which is simply “suffering that does not help to secure some greater good or prevent some greater evil”. The second is the truth or falsity of premise (2).

In responding to premise (2), theists can adopt one of two strategies: (i) they can argue that every apparently gratuitous instance of suffering does, in fact, serve some greater good (or prevent some greater evil); or (ii) they can argue that we have no way of knowing whether or not they serve some greater good. The first of these strategies can be called constructing a theodicy and the second can be called donning the skeptical theist’s hat. In responding to the theist, the proponent of the evidential argument will either: (a) argue that none of the profferred theodicies do account for observed instances of suffering (there’s so much of it, after all); or (b) point to the worrying implications of skeptical theism. No doubt theists will remain unconvinced.

This is where the EGC comes into play.

As I mentioned above, the EGC inverts the evidential problem of evil. That is to say: it presents us with an evidential problem of good. It does so by first asking us to imagine that an all-powerful, all-knowing, all-evil being exists (call it “Evil God”). It then highlights all the wonderful, joyous events that occur in the world, events that don’t seem connected to any greater evils (call them “gratuitous joys”). And finally, it suggests that these gratuitous joys provide evidence against the existence of Evil God. As follows:

(4) If an all-powerful, all-knowing, all-evil being existed, that being would not allow gratuitous joy to occur.

(5) Gratuitous joy probably does occur.

(6) Therefore, (probably) an all-powerful, all-knowing, all-evil being does not exist.

Again, the argument can be responded to in one of two ways. First, the believer in Evil God can argue that every apparently gratuitous instance of joy does, in fact, serve some greater evil (call this constructing an e-theodicy). Or second, the believer in Evil God can argue that we have no way of knowing whether or not apparently gratuitous joys serve some greater evil (call this donning the skeptical e-theist’s hat). The Evil God skeptic will respond by either (a) arguing that none of the profferred e-theodicies do account for observed instances of joy (there’s so much of it, after all); or (b) pointing to the worrying implications of skepticial e-theism.

At a first pass, the EGC is simply the presentation of this inversion in as clear and detailed a manner as possible (Law’s original article certainly does this). It is then left to the theist to work out the implications of the inversion for their own belief system. But this is unsatisfactory. It would be better if we could spell out in more detail exactly how the EGC should affect the theist’s belief system. So let’s look at three possibilities.

2. The EGC as a Reductio of Theism
The first possibility is to present the EGC as a reductio of classical theism. Classical theists believe in the existence of an all-powerful, all-knowing and all-good being. The problem is that while their standard arguments (cosmological, design etc.) may establish the existence of a creator God, they do nothing to establish that the creator is all-good. Hence they must do something more to show that the creator is all-good. This brings the EGC challenge into play since it suggests that the case for an Evil God is just as strong as the case for a Good God.

This is where things get interesting. When confronted with the idea of an Evil God, most classical theists will be inclined to simply dismiss it as being absurd. But if all other arguments fail to support the existence of a Good God, and if the evidential problem of good is just as strong as the evidential problem of evil, shouldn’t they then accept that idea of a Good God is absurd too? In other words, shouldn’t they accept the following argument:

(7) The EGC shows that the evidence in favour of the existence of a Good God is roughly equal to the evidence in favour of the existence of an Evil-God.

(8) The case for Evil God is absurd.

(9) Therefore, (probably) the case for Good God is equally absurd.

This seems like a reasonable enough way in which to run the EGC. The problem is that classical theists have some responses. They can argue against (7) by suggesting that the evidence is not perfectly equal (or that there are other arguments for the goodness of the creator); or they can argue that (9) does not follow from (8) because the concept of a Good God is crucially disanalogous from the concept of an Evil God; or, they can even argue that the concept of an Evil God is not absurd.

Law’s original article on the EGC considers these kinds of responses, which suggests that he too originally understood the EGC as a reductio of classical theism. (To be fair, his approach was softer: he argued that both were equally unreasonable, not equally absurd). But in clarifying his argument from Monday night, I think he gestures toward an alternative interpretation.

3. The EGC as Support for the Evidential Problem of Evil
Go back, for a moment, to my earlier presentation of the evidential problem of evil. As you recall, the key premise there was:

(2) Gratuitous suffering probably does occur.

This premise is supported by identifying instances of suffering that seem pointless to us, applying the principle of warranted induction (i.e. what seems to be the case probably is the case), and concluding that there probably are genuinely pointless instances of suffering. Generally, classical theists do not accept this line of reasoning. While many of them will accept that there are instances of seemingly gratuitous suffering, they will reject the idea that we are warranted in jumping from a claim about what seems to be the case to a claim about what actually is the case.

Now look at the key premise in Law’s evidential problem of good:

(5) Gratuitous joy probably does occur.

This premise is structurally equivalent to premise (2). That is to say, we would support it in exactly the same way: by first identifying instances of joy that seem (to us) not to serve any greater evil, by applying the principle of warranted induction, and by concluding that there probably are genuinely gratuitous instances of joy. But what do theists say in response to this? Do they reject the inference in the same way that they rejected the inference in the evidential problem of evil?

Law suggests that many will accept the inference in the case of the evidential problem of good. But this means that they ought to accept the inference in the original argument too. In other words, it implies that they ought to be persuaded by the evidential problem of evil. In more long-winded fashion, we say the following:

(10) When confronted with the EGC, classical theists accept the principle of warranted induction.

(11) The principle of warranted induction states that if a defined reference class of events in the world seems, after a reasonable search, to have a certain quality Q, then it probably does have that quality Q.

(12) A reference class of events in the world seems, after a reasonable search, to have the quality of gratuitous suffering.

(5*) Therefore, (classical theists ought to accept that) gratuitous suffering probably does occur.

The idea that the EGC can be used to reinforce the evidential problem of evil is an attractive one, but it is also somewhat suspicious. After all, part of the strength of the EGC was its suggestion that the evidential case for an Evil God is just as good as the evidential case for a Good God. To turn around and then use the EGC to support the evidential case against a Good God is downright odd. This is does, however, open up a pathway to a third possible interpretation of the EGC.

4. The EGC as Part of the Argument for Indifference
Paul Draper’s 1989 article “Pain and Pleasure: an Evidential Problem for Theists” suggested that the debate between theists and non-theists could be construed as a debate between those who think the universe has some morally good creator behind it (theists), and those who think it it is morally indifferent (non-theists). In other words, between those who think the Hypothesis of Indifference (HI) is, on the available evidence, more likely to be true than the Hypothesis of Theism (HT).

I think Law’s EGC could be employed as part of the evidential case for HI. How so? Well, go back to the idea of the principle of warranted induction. This principle states that we can make warranted inferences about the actual nature of a defined reference class of events by performing a reasonable survey of the members of that reference class. So we must ask: When trying to make warranted inferences about the moral character of the universe, what is the relevant reference class of events? I would argue that the relevant reference class of events is all events affecting sentient beings. Why only those events? Because under most conceptions of morality, it is only such beings that have moral significance.

What Law’s EGC does (when read in its totality) is show us that the reference class of events involving sentient beings appears to have a balanced set of moral qualities. Yes, it is true that some events have the quality of gratuitous suffering, but it is also true that a roughly equal number have the quality of gratuitous joy. In other words, the events in the relevant reference class seem to have equal amounts of the quality Q (goodness) and ~Q (badness).

But wouldn’t that imply that the universe has no discernible moral character? And isn’t this exactly what we would expect if the hypothesis of indifference were true?

I’m not entirely sure how to move from these rhetorical questions to a proper argument, but maybe something like this could work.

(11) The principle of warranted induction states that if a defined reference class of events in the world seems, after a reasonable search, to have a certain quality Q, then it probably does have that quality Q.

(13) The moral character of the universe should be observable in the class of events affecting sentient beings.

(14) If HT is true, then we would expect there to be significantly more goodness than badness in the class of events affecting sentient beings.

(15) If HI is true, then we would expect the class of events affecting sentient beings to have roughly equal amounts of goodness and badness in it.

(16) If HI is probably true, then HT is probably false.

(17) The EGC suggests that the reference class of events affecting sentient beings, after a reasonable search, seems to have roughly equal amounts of goodness and badness.

(18) Therefore, the reference class of events affecting sentient beings probably does have equal amounts of goodness and badness in it (from 11 and 17).

(19) Therefore, HI is probably true (from 15 and 18).

(20) Therefore, HT is probably false (from 16 and 19).

I haven’t mapped this out because it’s incomplete (for instance, premises 13 and 14 don’t feature in any of the argument’s derivations so I’m wondering what they’re doing there). But if it could be completed, I think it would be the most promising and most persuasive way in which to employ the EGC. That said, it would certainly still be open to critique. For instance, (15) is particularly problematic. The claim it makes is that roughly equal amounts of goodness and badness imply indifference, but that isn’t necessarily true. After all, we would expect the same if Manicheanism were true. So how can I say HI is supported by that evidence more than Manicheanism (or even some forms of polytheism)?

To sum up, I think there are at least three different interpretations of the EGC. Each has its strengths and weaknesses. The reductio interpretation could be rhetorically effective but there are some well-known responses. The “supporting the evidential PoE-interpretation is intriguing but, ultimately, suspicious. And the indifference-interpretation is, to my mind, the most promising but also the most incomplete. More work needs to be done on the concept of moral indifference, and the expectations we would have from a morally indifferent universe, for it to become persuasive.