Addiction and Responsibility (Part Two)

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(Series Index)

(Part one)

This is the second part in a brief series on addiction and responsibility. The series is working off the article “Lowering the Bar for Addicts” by Gideon Yaffe. Yaffe defends two central theses in his article. They are:

Unreasonable Compliance Thesis: An addict is not responsible for violating a norm if in order to comply with that norm they must cede control of their behaviour to something that is independent of their decision-making capacities.

Substitution Thesis: In cases where standard norm-compliance would be unreasonable for the addict, there is usually a lesser norm that the addict can be held responsible for violating.

As part of his defence of these theses, Yaffe discusses alternative views on the relationship between addiction and responsibility. One of those views claims that the situation faced by the addict is akin to that faced by the person who is under duress. Both face an unreasonable burden if they comply with a norm and so both should be excused if they fail to comply. In part one, we identified some flaws in this analogy. In brief, there appear to be a number of significant structural differences between the situation faced by the addict and that faced by the person under duress.

However, Yaffe is keen not to throw the baby out with the bathwater. There is something about addiction that involves unreasonable burdens, and those burdens are relevant to responsibility. It’s just that the duress-analogy fails to specify exactly how this works. Yaffe has an alternative theory that does. In the remainder of this post, I’ll try to explain what it is.

The post is divided into three sections. The first introduces Yaffe’s concept of burdens of compensation and contrasts them with burdens of duress. The second part introduces some thought experiments that suggest that certain burdens of compensation are unreasonable and tries to specify a condition which, if met by such burdens, is sufficient to undermine responsibility. And the third part outlines Yaffe’s argument for this sufficient condition. This constitutes the theoretical core of Yaffe’s paper, all that remains to be done in the final part to this series is to explain how the sufficient condition might apply to addicts.


1. Burdens of Compensation
We all have certain innate foibles and defects that make it difficult for us to do certain things. Some of us have more of these defects than others. Usually, we accept that we have to undertake a burden to compensate or correct for these defects. Consider, for example, the man who finds it difficult to wake up and get out of bed in the morning. He has an important job and he has to make sure he is there on time. So, he finds it necessary to take steps to correct for his problem. This could consist of buying an alarm clock, getting his wife to pour cold water on his face, or something along these lines.
The man in this example faces what Yaffe calls a “burden of compensation”, which can be defined as follows:

Burden of Compensation (BoC): Is any step that an agent has to take in order to compensate for innate/intrinsic obstacles to norm-compliance.

A burden of compensation is importantly different from the kinds of burdens that arise in duress. Take the example once more of the person who is threatened with death or harm unless they agree to perform a burglary. The threat presents a burden that we would not expect the person to bear. But the burden in question would arise after the person complied with the norm, not before. This is distinct from a BoC, which arises before norm-compliance, not after. That is to say, in the case of a BoC, the agent must take on the burden in order to comply with the norm; whereas in the case of duress, the agent must breach the norm in order to avoid the burden. Whether this distinction is morally significant is questionable, but it is, at the very least, structurally different.

In addition to this, Yaffe argues that close analysis of BoCs reveal that there is sometimes a fuzzy boundary between saying that someone “Cannot do X” and saying that someone “Cannot be expected to do X”. The person who faced a BoC but did not undertake it could not have complied with the relevant norm because they then lack a certain capacity or ability. Thus, we might be tempted to say that they could not comply and so should be excused. But this is not quite right since they still had the opportunity to comply: if they had undertaken the BoC they could have complied. So what really seems to matter here is whether the burden in question was one they could reasonably be expected to bear.


2. What kinds of Burdens are Unreasonable?
Consequently, we need to figure out what kinds of burden are unreasonable. In the duress case, this might be straightforward enough: a burden is unreasonably high when the moral wrong (or harm) that would arise if one complied with the norm is greater than the moral wrong that arises if the norm is breached. So, for example, if someone is forced to commit a burglary in order to avoid their child being harmed or severely injured, we excuse them because having a child killed or injured is morally worse than allowing a burglary to be committed. There is a straightforward moral cost/benefit analysis taking place here.

A similar calculus might work in the case of BoCs, but Yaffe isn’t particularly optimistic about developing a general theory of unreasonable burdens. Instead, he is content to identify one condition which if satisfied is sufficient to undermine responsibility, without ruling out other possible conditions. The condition in question is a complex one, and so we need to take care in how we approach it.

Let's start with some intuition-pumping. Imagine there is a person with a severe mental impairment. This impairment reduces their ability to recognise and respond to reasons for complying with certain social, legal and moral norms. However, there is a way for them to overcome this obstacle to norm-compliance: they can cede all decision-making authority and control to another agent (e.g. by granting power of attorney, or something akin to this). But, as it happens, this person fails to cede decision-making authority and control to another person and thus ends up breaking some norm. Now imagine a second person, with normal mental faculties, who also breaches that norm. Which of the two deserves blame for failing to be norm-compliant?

The intuition is that the person with the severe mental impairment, even if they do not entirely escape blame, is much less blameworthy than the normal person. Why so? Well, the normal person presumably recognised the reasons for being norm-compliant but decided to ignore them, whereas the impaired person could not even recognise those reasons in the first place. There’s something intuitively worse about the former, which suggests there is something about the predicament faced by the latter that lessens the degree to which they are responsible.

But what is this? The answer, according to Yaffe, is that the impaired person is under an unreasonable BoC. They can only comply with the norm by ceding their autonomy to another agent or entity, and it is unreasonable, ceteris paribus to expect someone to renounce their autonomy in this manner. The ceteris paribus clause is significant here. On some occasions, ceding autonomy can itself be an exercise of autonomy. One thinks of Ulysses binding himself to the mast in order to avoid being lured away by the Sirens. In doing so, he compromised the autonomy of his future self, but he was still exercising autonomous control.

What’s more, it is sometimes reasonable to expect people to cede autonomy in this manner. Yaffe uses the example of the panicky soldier to make this point:

Panicky Soldier: D joined the army voluntarily and upon joining committed himself to following any orders given by his commanding officer. The problem is that D suffers from severe panic attacks. In the midst of a heated battle, he is apt to panic and flee (a breach of the military code). The only way D can overcome this is to focus on his commanding sergeant and copy whatever he is doing.

In this example, the soldier can only comply with the “Do not flee the battlefield”-norm by ceding his decision-making power to his commanding officer. However, since he voluntarily agreed to do this when he joined the army, it seems reasonable to expect him to do so via the specific mechanism (copying movements) identified here. In other words, the soldier seems to be under an independent normative obligation to cede his autonomy to his commanding officer — which was undertaken upon joining the army — and this independent normative obligation seems to make it reasonable to expect him to take steps to do just that when he’s on the battlefield.

Our feelings would probably be different if the soldier had been conscripted into the army, or had otherwise been forced to participate in the battle. For if this happened, there would be no independent normative obligation to cede autonomy to another, and hence nothing to justify the reasonable expectation.


3. Ceding Autonomy and the Argument from Blame
With the lessons from the preceding thought experiments under our belts, we can now proceed to outline the condition which, if met, is sufficient to undermine responsibility:

Ceding Autonomy Principle: If S, in order to do A in circumstances C, would have to give up his power to decide whether or not to do A in C on the basis of appreciation of the reasons for and against A-ing in C, and if S is not under independent normative pressure to give up his autonomy in this way, then S is not responsible for failing to A in violation of a norm requiring agents to A in C.

That’s quite a mouthful, but you can blame Yaffe for this since it’s his wording (the name is mine). I can live with the wording of it though, what I’m more interested in is the argument for this principle. Why is it that ceding autonomy is an unreasonable burden to bear?

Yaffe’s argument is based on the nature of blame and punishment. He argues that in blaming and punishing an agent for failing to comply with a norm we are, in effect, trying to give them an additional reason for not having acted as they did. (I think this is mildly controversial, but let’s run with it for now.) Next, he argues that in order for blame and punishment to make sense (or, maybe “to be justified”) the kind of reason-for-action that they supply must be one that would have worked at the time of the original norm-violation. But, of course, if someone has to cede their autonomy to another in order to comply with a norm, they would not be receptive or responsive to reasons-for-action at the time in question. After all, they have some deficit that prevents them from being receptive and responsive. Thus, blaming and punishing them for failing to comply with the norm is nonsensical/unjustifiable.

I have some doubts about this argument, but I’m going to try to formalise it as best I can before I say anymore:

• (1) It is only justifiable/sensible to blame and punish X for failing to comply with a norm if, at the time at which they failed to comply with the norm, they could have been receptive to the reason for compliance that is supplied by the blame and punishment. 

• (2) If X had to cede autonomy to another in order to comply with a norm, then they could not have been receptive to the reason for compliance that is supplied by the blame and punishment.

• (3) Therefore, if X had to cede autonomy to another in order to comply with a norm, it is not justifiable/sensible to blame and punish X them for failing to comply.

As you can see, I’ve equivocated here between whether the blame and punishment is “sensible” or whether it is “justifiable”. I do this because Yaffe uses the phrase “makes sense” in his discussion, which suggests to me that he is making a conceptual argument, but I think it would be better to construe the argument as a normative one, so I've substituted in the term “justifiable”. That said, there may not be a huge difference between conceptual and normative arguments in this instance. If the upshot of the conceptual argument is that it is inappropriate to apply certain terms or concepts in the specified cases, and if those concepts describe inherently normative practices, then it may just amount to saying that it is unjustifiable to carry out those practices in the specified cases.

That’s a somewhat technical point. A more interesting, and ultimately more significant, point is this: there’s something suspicious about the account of blame and punishment that Yaffe is adopting here (premise (1)). In particular, it seems that in saying that blame and punishment must provide reasons for norm-compliance that would have been operative at the time of norm-violation, Yaffe is relying implicitly on a retributive conception of blame and punishment. This is controversial.

According to retributive theories, it is right and proper to blame/punish an individual if and only if they have engaged in culpable wrongdoing. Which is to say, what matters from the perspective of retributive punishment is how an agent actually violated a norm. Thus, this is a necessarily historically-oriented justification for punishment. This fits well with the account of blame and punishment offered by Yaffe. If blame and punishment are supposed to provide reasons for norm-compliance, and if punishment is justifiable only by reference to what happened in the past, then it makes sense to demand that the reason for compliance would have been effective in the past.

But a historical theory of blame and punishment like retributivism is not the only game in town. If those practices are justified on consequentialist or utilitarian grounds, then they become future-oriented. And if they become future-oriented, one wonders whether the demand that the reasons for action that they supply be operative in the past is needed.

To be clear, I’m not entirely sure about this line of criticism. It’s possible that Yaffe’s argument could be repaired or refined in some way that allows it to encompass the competing theories of blame and punishment. It’s also possible that the ceding autonomy principle could be defended in other ways. Who knows? From now until the end of this series we’ll assume it’s correct and turn our attention instead to whether it applies to drug addicts. That’s a topic we’ll take up in the next post.

Addiction and Responsibility (Part One)

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When it comes to assessing the impact of addiction on responsibility, there’s a longstanding debate between two schools of thought. The first, which we might call the “Moral Failing” school, holds that addiction does nothing to lessen responsibility: an addict is someone who exhibits a lack of moral virtue, and so they should not be excused from responsibility. The second, which we might call the “Disease” school, holds that addiction is an action-related disease and, as a consequence, we cannot hold addicts responsible for what they do.

In a recent article entitled “Lowering the Bar for Addicts”, Gideon Yaffe argues that both schools of thought are wrong. Addicts are neither completely responsible, nor completely absolved. Instead, he argues that there is a middle ground, which holds that an addict “should be given some kind of break but not excused entirely.” In essence, this middle ground consists of two theses (the names are mine, not Yaffe’s):

Unreasonable Compliance Thesis: An addict is not responsible for violating a norm if in order to comply with that norm they must cede control of their behaviour to something that is independent of their decision-making capacities.

Substitution Thesis: In cases where standard norm-compliance would be unreasonable for the addict, there is usually a lesser norm that the addict can be held responsible for violating.

The first thesis is so named because Yaffe’s argues that the reasonability of the burdens associated with norm compliance plays a key role in our assessments of responsibility. The naming of the second thesis should apparent.

Over the next few blog posts, I want to outline Yaffe’s defence of these two theses. That defence comes in four parts. The first part highlights the importance of reasonable expectations and burden-sharing in assessments of norm-compliance and responsibility. The second part notes how people are sometimes expected to take on the burden of correcting for their defects, and how a failure to meet that burden can lead to the ascription of responsibility. The third part specifies a key condition that makes it unreasonable for an agent to take on the burden of correcting for their defects. And, finally, the fourth part argues that addicts meet that condition. This then leads to the conclusion that the two theses mentioned above are correct.

In the remainder of this post, I will focus on the first part of Yaffe’s defence.


1. Duress and Unreasonable Burdens
An argument that is sometimes mooted is that an addict’s responsibility is undermined because they are under duress. This raises the obvious question: what is duress? Put simply, duress is a defence to a criminal charge. Duress arises when a person is put in a situation in which they are forced to choose between violating a norm (i.e. commit a crime) and doing something that seems to place an unreasonable burden on them. In practice, it is quite difficult to prove, but it is still generally recognised as having the power to excuse.

An example will be helpful at this point. In the English case of R v. Hasan (2005) the defendant pleaded duress to a charge of burglary. He alleged that a violent drug dealer had threatened to harm both himself and his family if he did not carry out this burglary. This is a classic example of duress: D, or someone close to D, is threatened with being severely harmed unless D commits a crime. As it happened, the defence was not successful in this case. The court found that D had voluntarily associated with the drug dealer and would reasonably have expected to be threatened or compelled by them at some point. In other words, the court found that if you voluntarily put yourself in a situation in which you are likely to be placed under duress, you cannot avail of the defence.

The court’s conclusion might provide an interesting lesson for those who argue that addicts are under duress, but we shall not dwell on that here. There are other, deeper, problems with that view. To see what these are we need to map out the basic structural features of duress. Basically, duress arises when the following conditions are met: (i) a person is (involuntarily?) confronted with a decision problem; (ii) in that decision problem they have a choice between complying with a norm, and not complying with a norm; and (iii) there is a heavy, arguably unreasonable, burden attached to compliance with the norm. So even though the person had a choice of whether or not to comply, we think they are excused for their non-compliance because of the unreasonable burden. This gives us the following principle:

Duress Principle: If D is faced with a choice between norm-compliance and non-compliance, and if there is a heavy, unreasonable burden associated with compliance, they can be excused for failing to comply with the norm.

This principle isn’t perfect, by any means. I think it would need to be qualified and refined in a number of ways before it became satisfactory. However, for the time being, let’s assume its accurate and see what follows. For ease of analysis, the structural elements of duress are represented in the diagram below. The diagram uses the case of R v. Hasan for illustrative purposes, but ignores the issue of voluntary association that arose therein.

2. Addiction and Duress
From the preceding analysis, it would seem that in order for the claim that addicts are under duress to be borne out, we would need to locate some heavy burden that makes norm-compliance unreasonable for them. What might this be? Yaffe considers the suggestion that the burden in question is that of withdrawal. In this context, “withdrawal” is a general term given to a complex of symptoms experienced by addicts once they withdraw from consumption of their preferred substance. If we compare non-addicts to addicts, we find that the latter are (sometimes) faced with a choice between norm-compliance plus withdrawal, and non-compliance, whereas the former are not. For instance, a heroin addict might be forced to steal in order to feed their addiction; they have the option of not-stealing, but if they chose it they would be forced to bear the burden of unpleasant withdrawal symptoms. Non-addicts have no similar burden attaching to compliance.

This leads to the following argument:

• (1) If D is faced with a choice between norm-compliance and non-compliance, and if there is a heavy, unreasonable burden associated with compliance, they can be excused for failing to comply. 

• (2) In some situations, addicts are faced with a choice between: (a) complying with a norm and undergoing withdrawal symptoms; and (b) not complying with a norm and avoiding withdrawal symptoms. 

• (3) Withdrawal symptoms are a heavy, unreasonable burden to bear. 

• (4) Therefore, in some situations, addicts can be excused for failing to comply with norms.

Is this a plausible argument? Is an addict really under duress because of the burden of withdrawal? Yaffe detects three flaws in this line of reasoning.

The first has to do with the nature of withdrawal symptoms. As Yaffe notes, these vary greatly depending on the substance to which a person is addicted. For instance, a common methamphetamine withdrawal symptom is sleeplessness, while a common cocaine withdrawal symptom is craving. No doubt both are unpleasant, but are they really unreasonable burdens? Would we not expect people to comply with norms even if such unpleasantries were attached to compliance? Furthermore, and this is the angle of attack Yaffe prefers, the variation in symptoms is greater than the variation in beliefs about the responsibility-undermining potential of addiction. In other words, people seem to think that addiction per se undermines responsibility, and they do not seem to pay attention to the specific nature of the withdrawal symptoms associated with different kinds of addiction. Thus, to claim that withdrawal symptoms explain or justify why addiction might undermine responsibility seems wrong.

The second problem is that addiction seems to affect responsibility even when an addict violates a norm that has nothing to do with drug use. He gives the example of a heroin addict who has a $30 a day habit, and who calls on family favours to secure himself a job that pays $130 a day (not too shabby for a heroin addict). However, he cannot perform his duties at work competently or efficiently, and he is fired. He has violated a norm (perhaps a social one, but also a legal/contractual one). Yaffe suggests that his addiction surely has some role to play in this, and although we may think he still deserves to be fired, it nevertheless seems to affect the degree to which we hold him responsible for being fired. In this example, addiction plays a part in our responsibility assessments, but that part has nothing to do with the fact that the addict faced a stark choice between non-compliance and withdrawal. Indeed, quite the opposite since the job would have helped him feed his habit.

The third problem is that to say that an addict is under duress is a mischaracterisation of how they make decisions. If the addict chooses to violate a norm in order to (say) steal money to feed their addiction, they are not acting so as to avoid withdrawal symptoms. Instead, they are acting because they enjoy, or derive pleasure (or simply need) the drugs, “avoiding withdrawal symptoms” does not really figure among their motivations. This stands in stark contrast to the man who commits a burglary in order to avoid harm to himself or his family. There, the primary motivation for non-compliance comes from the heavy burden of compliance; in the case of the addict, the primary motivation comes the attractive features of non-compliance. There is something Frankfurter-esque in this line of reasoning, and it chimes with certain intuitions and theories we have about what makes someone responsible. Roughly, how they perform an act seems to count for more than what might have happened if they failed to perform the act.

If this right, then this duress-based analysis of addiction and responsibility fails. Reasonable expectations and burden-sharing play important roles in how we understand responsibility, but addicts cannot be excused simply because they are under the burden of withdrawal symptoms. If they are to be excused, some other rationale must be sought. We’ll find out more of Yaffe’s thoughts on this rationale in the next post.

Solum on Semantic Originalism

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This post is slightly unusual, covering as it does a slightly recondite issue in legal philosophy rather than something in ethics/religion which is the norm for this blog. Nevertheless, it has great personal significance for me since I teach legal philosophy and work in a law school. Also, I think it is an interesting topic irrespective of its recondite nature.

So what is this topic that I speak of? Many living in the US will be aware of the ongoing, often-heated, debate over the correct interpretation of the constitution. Since roughly the late 1970s (although one can find precursors before that) there has been a movement calling for an originalist interpretation of the constitution. This movement is typically associated with the conservative side of the political debate, although more recently some liberals have endorsed a form of originalism (Jack Balkin being the exemplar of this).

The doctrine of originalism has gone through a number of transformations over the years. It started off being about interpreting the constitution in light of the intentions of the framers, before eventually settling on its most stable and popular form which calls for interpreting the constitution in light of its original public meaning. By far the most sophisticated and compelling defence of this brand of originalism can be found in the work of Lawrence Solum.

Solum defends something he calls “semantic originalism” which is a partly normative, partly semantic interpretive theory. In this post, I want to outline some of his basic arguments for this position. I must confess, however, that I will be relying on a slightly dumbed down version of those arguments, which can be found in Solum’s debate-book with Robert Bennett. The full version of Solum’s argument can be found in his paper/monograph “Semantic Originalism”. I doubt I’ll cover that on the blog though, since it is quite a dense piece of work (in the best possible sense of the word “dense”).

The post will be divided into three parts. The first will outline the four central theses of Solum’s semantic originalism and will present the basic argument for that position. As will become clear, the theory has a normative and a semantic component to it. The remainder of the post will focus on the semantic component. To this end, the second part will look at one of Solum’s arguments for this component, something I dub the constitutional communication-argument. While the third part will look at another argument, which I dub the absurdity argument.


1. Semantic Originalism
Solum’s unique brand of originalism centres on four interlocking, though distinct theses. They are:

The Fixity Thesis: The semantic content of the constitution is fixed at the time of ratification. 

The Clause-Meaning Thesis: The semantic content of the constitution at the time of ratification was the original public meaning or original conventional meaning of the clauses contained within. (There are four qualifications of this thesis which I shall not discuss at length here, they cover things like the possibility that new terms were created by stipulation within the constitution, and that legal terms of art were adopted by the constitution.) 

The Contribution Thesis: The semantic content of the constitution contributes to, but does not fully determine, the application of the law. 

The Fidelity Thesis: We have good reasons to affirm, or be loyal to, the semantic content of the constitution.

Solum qualifies and develops each of these theses at considerable length. Of necessity, I will be much briefer. Broadly speaking, the first two theses constitute the “semantic” component of Solum’s theory because they both make claims about the meaning of the clauses contained within the constitution. By contrast, the latter two theses would appear to constitute the “normative” component of Solum’s theory because they make claims about the kind of legal order we ought to be committed to.

Admittedly, the contribution thesis is not obviously normative in nature. It seems more to be making a point about how the law works: legal rules have a semantic content which is important, but which does not fully determine the kinds of institutions or legal structures we should construct out of those rules. This is because meaning is ambiguous, open to multiple applications, depending on the circumstances. Despite this, I take it that the contribution thesis is still part of the normative case for originalism because it tries to reassure certain critics of that position. Critics will argue that originalism, if taken seriously, will turn the constitution into a straitjacket (or a “suicide pact”), something which cannot be sustained in the face of a ever-changing and evolving society. But the contribution thesis suggests that this need not be the case. Because there is a gap between the interpretation of the constitution (which depends on semantic content) and the application of the constitution (which depends on interpretation and more), there is some room for flexibility and responsiveness. This gap is something that Jack Balkin has run with in his book Living Originalism, which tries to square the circle between originalism and living constitutionalism.

Combining the semantic and normative components, we get a very simple argument in favour of semantic originalism:

• (1) We ought to interpret the constitution according to its semantic content. 

• (2) The semantic content of the constitution is fixed by the original public meaning of its clauses. 

• (3) Therefore, we ought to interpret the constitution according to the original public meaning of its clauses.

I shan’t discuss the defence of premise (1) in this post. The reader is free to speculate and comment as they see fit. I shall, however, discuss two of Solum’s arguments in favour of the second premise. The first of those arguments comes from considering the nature of constitutional communication. The second is effectively a reductio ad absurdum of the leading alternative theory, living constitutionalism. Both are taken from pgs. 13-17 of Constitutional Originalism.


2. The Constitutional Communication Argument
Laws can be viewed as speech acts, as attempts to do things with words. After all, a law is a written or otherwise symbolically-encoded rule that sets out demands, imperatives, commitments and so forth. Speech acts have conditions of success associated with them. Those conditions of success relate to both the semantic content of the act, as well as its purpose (or, to use a fancier term, its illocutionary point).

Consider an ordinary conversational communication between two people. The first, the Speaker, is trying to perform a speech act. In this instance, the speech act is a request. The Speaker asks the Listener to “Pass the chalk”. In order for the request to be successful, the Listener must understand both the point of the speech act and as well as its semantic content. How is this possible? The standard Gricean analysis holds that this is possible when the listener understands the speaker’s intentions. In other words, when the speaker refers to “chalk”, the listener knows which object in the world the speaker is referring to; and when the speaker says “pass me”, the listener knows which actions he or she is expected to perform. Furthermore, in order for the request to be fully successful, there must actually be chalk in the room that the listener can pass to the speaker. So the Gricean analysis of meaning effectively reduces meaning to knowledge of a speaker’s intentions.

This has an interesting consequence when applied to the ordinary conversational context. Obviously, words like “chalk” and “pass” have conventional meanings — meanings that are understood and recognised by most people in society. The speaker in our hypothetical conversation relies upon those conventions in making his/her request. However, in that setting, the conventional meaning is not necessary for successful communication (though it may often be sufficient). Imagine, for instance, that the request for chalk took place in a room with a whiteboard and a marker, but no chalk. In that case, the listener would probably be able to guess that the speaker really intended for them to pass the marker (they could ask a clarifying question if needs be). So the mere fact that the conventional meaning of “chalk” didn’t apply to the actual situation in the room, would not imply that a successful communication could not take place. All that matters is knowledge of speaker’s intentions.

So much for the ordinary conversational context. What about the context in which legal speech acts are made? Solum argues that this context is so radically different from that of everyday conversation that the Gricean analysis cannot apply. Legal texts, such as constitutions, have multiple authors (multiple speakers) all of whom may have had different, perhaps inconsistent, intentions in mind when they performed the speech act (i.e. drafted and ratified the constitution). Furthermore, unless they make some public record of their intentions, speculation and inference will be the only way to figure out what they may have intended. Both of these features makes it very difficult for listeners to know what the speaker’s intention was in the case of legal texts. What’s more, the authors would have known that this was the case, so they couldn’t have honestly expected people to interpret those texts in light of their intentions. They would have expected them to focus on original public meaning.

Another analogy, proposed by Solum, can be used to underscore this point and to endorse the originalist approach to interpretation:

Suppose you wanted to send a message in a bottle and thereby successfully communicate with an unknown reader, perhaps in a distant land generations from now. You couldn’t rely on the reader’s knowing anything about you, your intentions, or the context in which you wrote the message. You would have to rely on the plain [i.e. public/conventional] meaning of the words you used and the rules of English syntax and grammar. Of course, those meanings and rules might change over time, so it would be a good idea for you to date your message: if the reader were interested enough, he or she could check his or her assumptions about the plain meaning of your text against historical evidence of linguistic practices (pg. 14-15).

The point is that legal texts, like constitutions, are akin to messages in a bottle. They are speech acts, but when they are made, their speakers cannot rely on knowledge of speaker’s intention when trying to make a successful communication. Instead, they must rely entirely on the conventional public meaning of the language used, at the time of the speech act. All of which suggests the following argument in favour of premise (1):

• (4) In order for a speech act to be successful (i.e. in order for its listeners to understand its content and its point) it must either: (a) rely on the conventional meaning of its contents at the time it was spoken; or (b) rely on the listener having epistemic access to the speaker’s intentions. 

• (5) Legal speech acts (such as constitutions) have multiple authors (speakers) and an unknown and oftentimes temporally distant set of interpreters (listeners). 

• (6) If a speech act has multiple speakers and an unknown and temporally distant set of listeners, it cannot depend on the listeners having epistemic access to the speakers’ intentions.

• (7) Therefore, in order for a legal speech act to be successful, it must rely on the conventional public meaning of its contents at the time it was spoken.

This gets us to premise (2), with some relatively minor, and easily reparable, slippage between (7) and (2). As you can see, the argument is normative in the sense that it assumes we want to have successful speech acts, but it is still primarily about what determines the semantic content of different kinds of speech act (in any event, the line between semanticity and normativity is a thin one and, somewhat ironically, how thin it is depends on what one understands by the term “normative”).


3. The Absurdity Argument
The preceding argument offers some reasonable grounds for thinking that the semantic content of a legal text depends on conventional meaning. This provides support for Solum’s clause-meaning thesis. But snuck into the argument at the last moment was support for fixity thesis too. While that support may be sufficient, additional support can be derived from a reductio ad absurdum of the opposing view, namely: that the meaning of a term in a text changes along with any changes in the conventional meaning of that term. Call this the “living meaning”-thesis.

Solum has a nice example he uses to motivate this reductio. It concerns the use of the word “deer”. Apparently, in the 12th C, the word “deer” was a general term used to refer to any four-legged mammal, not just the mammals that we would nowadays call “deers”. That is to say, the conventional meaning of the word “deer” has evolved over time. Now imagine that we have a text dating from the 12th C that uses the word “deer”. How are we, in the 21st C to interpret that text? If we adopted the living meaning-thesis, we would say that the text was referring to the kinds of four-legged mammal beloved by Santa Claus. But this would surely be absurd, or so the argument goes.

I should say: I have no idea whether this example correctly represents the linguistic conventions of the 12th C. I assume it does, but in some ways it doesn’t matter. Solum has another, purely hypothetical example, which also suggests that living meaning, at least when it comes to historical texts, is an absurdity. Consider the term “freedom of speech”. This has a broadly accepted connotation in politics and law right now. But suppose, in the future, linguistic practice shifts, and the term “freedom of speech” becomes street slang for a forced confession. One would hear criminals conversing with one another talking about how a police officer “freedom of speeched” them, and so forth. If we (in the future) have legal texts referring to “freedom of speech” that predate this shift in linguistic practice, should we interpret them to be referring to “forced confession”? Again, to suggest that we should seems absurd.

We can summarise these thoughts as a simple argument. The argument mentions only the deer-example but could easily be reformulated to include the freedom of speech one. It runs as follows:

• (8) In the 12th C the word “deer” was conventionally understood to refer to all four-legged mammals; over time the conventional meaning has shifted to a particular subset of four-legged mammals. 

• (9) Suppose the living meaning thesis is correct. 

• (10) Then we would have to assume that a 12th C text using the word “deer” was not referring to all four-legged mammals but only the particular subset that we nowadays apply that label to. 

• (11) It is absurd to interpret a 12th C text in this manner. 

• (12) Therefore, the living meaning thesis is false. 

• (13) If the living meaning thesis is false, the fixity thesis must be true. 

• (14) Therefore, the fixity thesis is true.

Although premise (13) looks slightly dodgy here — in that it assumes there are only two possible theories — I still find this argument mildly compelling. However, this may be due to the simplicity of the particular example. I doubt there is much reason to dispute this kind of interpretation of the word “deer” from a 12th C text, just as there isn’t much reason to dispute the interpretation of the phrase “domestic violence” in the US Constitution (hint: it doesn’t mean what you might think it means). The real controversy arises with the more general, evaluative and ambiguous phrases like “cruel and unusual punishment”. No doubt there were a limited number of things that the public to whom the Constitution was originally addressed deemed “cruel and unusual”, but how they might have applied that phrase isn’t quite the same thing as the meaning they attached to it. The meaning is quite abstract and general; the application might be narrow and context-specific.

In fairness, Solum is admirably aware of this point. Indeed, this is exactly what his contribution thesis is getting at: to say that the semantic content of the constitution was fixed at the time of its ratification, is not to say that the expected legal applications of that content, at the time of ratification, should fully determine the law. We can apply terms like “unreasonable search and seizure” to new technologies and circumstances, ones maybe not envisaged by the original public, because the semantic content of those terms is broader than the original expected application. That must be borne in mind at all times when evaluating the semantic originalism defended by the likes of Solum.

Okay, so that’s it for this post. Hopefully, this has been a decent enough overview of semantic originalism and the basic arguments in its favour. If you want to learn more, I would recommend the book Constitutional Originalism or Solum’s article “Semantic Originalism”.

The Epistemic Objection to Torture (Part Two)

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(Part one)

This is the second part in my series on the epistemic objection to the use of torture. The objection is derived from the work of Roger Koppl on epistemic systems. In part one, I formulated the argument and laid out Koppl’s defence of its first premise (note: Koppl uses mathematical modelling to make his case, I tried to simplify things with some elementary logic and decision theory). In this part, I will discuss the second premise of the argument.

For ease of reference, I will restate the epistemic argument here:

• (1) Torture can only be an effective and reliable means of obtaining information if: (a) torturers can recognise the truth once it is spoken; and (b) suspects undergoing torture believe that the torturer will stop once they speak the truth. 

• (2) Conditions (a) and (b) are unlikely to be met in empirically plausible cases. 

• (3) Therefore, torture is unlikely to be an effective and reliable means of obtaining information.

• (4) Torture is only permissible (in ticking bomb scenarios) if it is an effective and reliable means of obtaining information. (5) Therefore, torture is impermissible (in ticking bomb scenarios).

Now, we see more clearly the focus of this post. We must ask: why is that torturers are unlikely to be able to recognise the truth once given and why are suspects undergoing torture unlikely to believe that they can?


1. A Simple Defence of Premise 2
Interestingly, Koppl never provides an explicit defence of premise (2). Instead, he defends it from a series of counterexamples. I presume this is because he either thinks the defence of premise (2) is obvious, or he thinks that if it can fend off counterattacks it will be deemed plausible. He may be right about this, but I still think it’s worth pausing briefly to consider how one might provide a positive defence of premise (2).

The defence would, I believe, run something like this. If a torturer could reliably distinguish true answers from false ones, they would probably not need to threaten the use of torture. Why not? Because then they would either know the truth, or have narrowed down possible truths to such an extent that they could check themselves (without getting the information from the suspect) or could use other less severe threats to extract the truth. It is only because they don’t know what the correct answer is, and have no other means of finding out, that torture becomes an option.

What’s more, the suspect would presumably know that the torturer was in this epistemic predicament. They would reason to themselves that the torturer would not be threatening to torture them if they could reliably tell the truth from a lie. Hence, they would be encouraged to follow the decision-theoretical reasoning I laid out in part one.

In other words, the following two propositions seem likely to be true and conjointly they give us reason to endorse premise (2) (numbering follows from part one):

• (12) If the torture knew or could recognise the truth, they would not probably not need to torture. 

• (13) If a suspect is threatened with torture, then they would know (or have strong reason to believe) that the torturer could not recognise the true answer once given.

Thus, it seems that in practice Koppl is right: the two conditions needed for epistemic success would probably not be met. One can understand the argument here as presenting something akin to a common knowledge problem. If the suspect can be expected to know that we have no way of telling the truth from a lie, then we should know that he will know this (and vice versa ad infinitum). Hence, we would know that we could gain no epistemic advantage by using torture.

There are, however, two potential objections, both discussed by Koppl. The first, and most interesting, objection concerns the scenario in which there are two (or more) suspects with access to the relevant information, both of whom can be threatened with torture. The second, and less interesting objection, concerns the possible use of feedback in the torture process. Let’s consider both in turn.


2. Truth Recognition in the Two-Person Scenario
There is an old logic puzzle involving two guards standing in front of two doors, each leading to a different location. One of the guards always tells the truth; the other always tells a lie. You do not know which guard is which and you need to find out the location behind each door. Is there anyway that you can do this? Yes there is. You can simply go up to one of the guards and ask him: what will the other guard say if I ask him what’s behind his door? I won’t explain exactly why this works now, but you can read about it here, or view a video about it here. What’s interesting about this puzzle is that it points to a scenario in which the truth is seemingly concealed from us, but in which the truth can nevertheless be revealed by carefully analysing the logical structure of the scenario.

Could something similar be true in the case of torture? In other words, could it be that, despite the epistemic impediments outlined above (and in part one), there is some way in which we can bring the truth to the surface? Some people argue that there is, provided we have two or more suspects available to us, both of whom have access to the truth. To understand how this might work, we need to introduce a new concept called a message set:

Message Set: This is the set of credible messages (i.e. the set of believable lies and truths) that the torture victim could “send” to the torturer.

Now, imagine that we have two suspects in custody, both of whom have access to the truth we wish to know, and whose message sets only overlap on this truth. In other words, the union of the message sets has only one member: the truth (although, admittedly the truth may consist of more than one message).

If we were presented with two such suspects, then we could indeed use torture as means of eliciting the truth. How so? Well, we could simply continue to torture them until they both gave us the same answer. We would then know that this had to be the truth. If you bear with me for a moment and assume that it is likely for us to run into two (or more) such suspects, we can make the following argument against premise (2):

• (14) If a torturer had two or more suspects in custody, both of whom had access to the truth, but whose message sets only overlapped on the truth, then he could torture them both until they gave the same response and he would know that this response was the truth (i.e. the torturer would be able to independently verify the truth). 

• (15) If the suspects could be made aware that this was the nature of the scenario, they would have reason to believe that the torturer could reliably distinguish the truth from a lie. 

• (16) The antecedents of the conditionals expressed in (14) and (15) are likely to be true in empirically plausible circumstances. 

• (17) Therefore, (2) is false.

3. Objections to the Two-Person Argument
Thank you for bearing with me as I wrote that out. No doubt, a whole raft of objections occurred to you as you read through it. Don’t worry, I spotted (at least some of) them too. Let’s run down the list of objections now.

The first worry is in my characterisation of premise (14). It is not just that we need to have two suspects with messages sets that only overlap on the truth, we also have to know that we have two such suspects. That is to say, it’s not enough for this to be the case, we also have to know that it is the case. This is similar to the logic puzzle involving the two guards. In order for the solution to work, we have to know that one guard always tells the truth and the other always tells a lie.

This knowledge-requirement has a direct knock-on effect on the plausibility of premise (16). After all, no matter how unlikely it is that we have in our custody two suspects, from the same terrorist cell, who have interacted in such a manner that their messages sets only overlap on the truth, it is surely even more unlikely that we would actually know that we had two such suspects in custody.

There are other objections to (16) as well. Koppl mentions several. One obvious one is that terrorist suspects are more likely to have pre-coordinated on a common lie before being taken into custody. This is true even if they operate within a cell-structure which seals them off from certain information. Why so? Because even within that system those who are higher-up in the structure could filter some agreed common response down to the underlings within the cells. Indeed, they are more likely to do this if they are aware of the possibility of the double-torture scenario. So even if the two-person situation arose once and was successful, it would be unlikely to work again in the future as the terrorist cell adapts to the problem.

Finally, even supposing that the terrorists could not pre-coordinate on a common response, it is possible that they could give a common lie in response to being tortured. This could happen if there is some common non-truthful message in the message sets that forms a “Schelling point”. A Schelling point is effectively an attractor point that two independent, non-colluding agents are likely to coordinate on. It was introduced by the game theorist and strategist Thomas Schelling in the mid-20th Century. Schelling proposed that two travellers who had agreed to meet each other in New York on a particular day, but who had failed to agree a time and place for this meeting, might independently arrive in Grand Central Station at 12 noon. This is because that place and time forms a common attractor point for travellers to New York. Is it possible that there is something akin to “12 noon, Grand Central Station” in the message set available to potential terrorist suspects? Arguably it is, and arguably this would be more likely than there being two terrorists with message sets that only overlap on the truth.

Combined, these objections seem to throw the two-person defence of the epistemic efficiency of torture into some doubt.


4. The Feedback Objection
The two-person objection to premise (2) was a little intricate; the feedback objection is much more straightforward. It argues that torturers, in empirically plausible scenarios, do have ways in which to independently verify whether the suspect is giving them truthful information. Quite simply: once an answer has been given to them, they can stop torturing the suspect, and go and check whether the answer is correct (remember: we are talking about ticking bomb scenarios where the relevant information is going to be a bomb-location or something along those lines). If it turns out to be correct, the torture will cease; if it turns out to be false, they can recommence torturing the suspect.

Under those conditions, the torturer should be able to (a) recognise the truth and (b) convince the suspect that they will stop torturing them once the correct answer has been given. And assuming independent verification of this sort would be quite normal in empirically plausible circumstances, we get the following argument:

• (18) If a torturer can independently verify the answers given to them by the suspect (e.g. by checking locations for ticking bombs), then they could distinguish the truth from a lie and, what’s more, they could convince the suspect that they had this ability. 

• (19) Independent verification of answers is possible in most empirically plausible scenarios.

• (20) Therefore, premise (2) is false.

Two responses to this argument can be mentioned here. The first is that the time pressures are such in ticking bomb scenarios that checking multiple locations is not practical. In other words, it may be that you only really get “one shot” at correctly identifying the location. If the suspect was aware that the time pressures were of this sort, then the argument would not go through (i.e. premise (19) would be rebutted).

In a similar vein, Koppl argues that many terrorist organisations will function in a fluidic and responsive manner. Once they know that a member of theirs has been arrested and is likely to be tortured for relevant information, they could quickly change the proposed location of their attack. Thus, whatever information was available to the suspect would quickly become obsolete (this argument would also work against the two-person scenario). I’m not quite sure what to say about this. Many of the most famous terrorist attacks (e.g. 9/11 and 7/7) did involve some partial last minute changes of plan, but this was usually due to unforeseen obstacles or accidents. Still, this would seem to be enough to suggest that terrorist groups can operate in the fluidic and responsive manner envisaged by Koppl. The key question then is how likely it is that members of the terrorist group would know that one of their own had been arrested. After all, if they don’t know that their plan might be foiled by someone divulging relevant information they can’t be responsive to this possibility. Whether they have such knowledge or not seems like something that would vary greatly from case-to-case.


5. Conclusion
To sum up, the epistemic objection to torture undercuts one of the key assumptions of those who would defend its permissibility, namely: that torture is an effective an reliable means of obtaining information. In order to work, the proponent of the objection needs to show that, in empirically plausible cases, (a) it is unlikely that a torturer would be able to recognise when a suspect is giving them a truthful answer and (b) a suspect would be unlikely to believe that the torturer had such an ability.

In this post, we considered a prima facie defence of this claim, as well as two responses to it. Both of these responses were found to be lacking, though some version of the feedback argument might be plausible, depending on the case.

There is one final point I want to address here. This relates back to premise (4) of the epistemic argument against torture. As you recall, this premise stated:

• (4) Torture is only permissible (in ticking bomb scenarios) if it is an effective and reliable means of obtaining information.

I think there might be some reason to doubt this. In the kinds of “high stakes” scenarios envisaged in the torture debate — i.e. scenarios in which some disastrous consequence is going to arise unless the information is obtained — it’s at least arguable that torture need not be effective or reliable in order to be permissible. It could be argued that as long as there is some small chance that torture would elicit the relevant information, it is worth giving it a shot, given that otherwise a disastrous consequence is going to occur. In other words, it could be that it is the proponent of the epistemic objection, not the proponent of the permissibility of the torture, whose argument rests on a faulty assumption.

The Epistemic Objection to Torture (Part One)

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For most of the first half of noughties, the ethics of torture was a hot topic, fueled no doubt by the political pressures of the war on terror. My sense is that the philosophical interest in torture has abated somewhat since then, although there are still books being published on the topic (e.g. Frances Kamm’s recent work). I remain interested for a variety of reasons. Some of those relate to teaching and the use I make of ticking bomb arguments in introducing students to argument analysis, but some of them have to do with my research which is partly focused on how different epistemic systems and practices are used in the law.

In keeping with this latter interest, this post will take a look at something I call the “epistemic objection” to torture. There are many ethical objections to torture, but there are also some (arguably compelling) ethical justifications of the use of torture in rare circumstances (“ticking bomb scenarios”). I have discussed these justifications before. The thing is, these justifications are usually premised on the belief that torture will actually be an effective means of obtaining information that will allow us to avert some disastrous consequence. But this is exactly what the epistemic objection disputes. It argues that torture is actually a highly unreliable source of information. If this is right, then most of the ethical debate over the harmful and disastrous consequences of torture is irrelevant.

No doubt many reading this will have encountered something like the epistemic objection in their travels (and travails) through the torture debate. It is often supported by reference to historical studies of, or historical experience with, the use of torture to extract information. This empirical work is of great importance, but there are also some theoretical reasons for thinking that torture would be a poor source of information. These reasons stem from something known as “Epistemic Systems Theory”, a relatively recent theoretical framework developed by the economist Roger Koppl. Indeed, Koppl used the epistemic objection to torture as one of his case studies in his initial presentation of this framework.

In this post I want to look at Koppl’s analysis and show how it can be formulated into a rigorous and complex argument against the use of torture. In doing so, I will eschew most of the mathematical formalisms adopted by Koppl in his discussions. These formalisms are fascinating and richly rewarding to the patient reader, but presenting them here would take too much time. Instead, I will attempt to present a more qualitative, reader-friendly version of the objection. The interested reader can go to Koppl’s article for the full formal machinery.

The discussion shall be split across two posts. In this post, I will present the basic epistemic argument against torture, and outline Koppl’s defence of its first premise. In the next post, I will turn to the second premise and consider some of the dialectical moves that are made in defending and critiquing this premise.


1. The Epistemic Objection
We start with the basic epistemic argument against torture. For simplicity’s sake, we shall assume throughout this post (and the next) that we are arguing against the use of torture in ticking-bomb scenarios. Although torture could be used for other purposes (punishment, sadistic pleasure, population control), none of those are likely to be justified. In the ticking bomb scenario, we have a person (or persons) in custody who we believe has information that can be used to avert some disastrous consequence (e.g. terrorist bomb going off in a populous location). All other means of extracting or obtaining the information have been exhausted or are impractical given the time constraints involved so the idea of torturing the person so as to extract the information is floated. Under such circumstances, it could be argued that torture is permissible.

At this point in the debate, in steps the proponent of the epistemic objection. They point out that the ticking-bomb argument depends on the implied assumption that torture is an effective and reliable means of obtaining the relevant information (I’ll come back to this in part two in case you think it’s not strictly true). But this assumption is dubious, to say the least.

Assume, for sake of argument, that we have the correct suspect in custody. That is to say, we have a suspect who can actually provide us with the information we need. Even then, Koppl argues, torture would only be an effective and reliable means of obtaining information if two conditions were met. First, the torturer would need to be able to recognise when the suspect was giving a truthful answer. And second, the suspect would need to believe that the torturer would stop torturing them once a truthful answer has been given to them.

The problem is that neither of these conditions is likely to be met in practice. And so, since the permissibility of torture depends on the effectiveness and reliability of the information obtained therefrom, the defenders of torture cannot sustain their position. To dress this up as a logical argument, we can say the following:

• (1) Torture can only be an effective and reliable means of obtaining information if: (a) torturers can recognise the truth once it is spoken; and (b) suspects undergoing torture believe that the torturer will stop once they speak the truth. 

• (2) Conditions (a) and (b) are unlikely to be met in empirically plausible cases. 

• (3) Therefore, torture is unlikely to be an effective and reliable means of obtaining information (from 1 and 2).

• (4) Torture is only permissible (in ticking bomb scenarios) if it is an effective and reliable means of obtaining information. 

• (5) Therefore, torture is impermissible (in ticking bomb scenarios) (from 3 and 4).

This argument looks to be valid, so the question is whether its premises are true. Some of them might seem straightforward enough, but I want to take a closer look. In the remainder of this post, I’ll focus on premise (1). Next time round premise (2) will be the main attraction, but premise (4) will also get a little look in.


2. On Koppl’s Conditions for Epistemic Success
The first premise of the epistemic argument may seem obviously true. Certainly, I’ve heard claims similar to it floating around in the media and popular debates. But it’s worth getting into its defence for at least two reasons. First, its worth knowing something about the psychological and logical mechanisms that make it plausible, since they have relevance to other debates too. Second, doing so allows me to expose you to some the formal machinery that underlies Koppl’s theory of epistemic systemics, which is worth knowing in and of itself.

Koppl’s framework for understanding epistemic systems is grounded in a combination of decision theory, game theory and information theory. In order to engage with the torture example, we only really need to look at the decision theoretical limb of the framework. Essentially, Koppl argues that when a suspect (with the relevant information) is about to be tortured, they face a simple decision problem: (i) they can say nothing, and be tortured; (ii) they can tell a lie, and hope they are believed; or (iii) they can tell the truth, and also hope they are believed.

Each of these choices can lead to a number of different possible outcomes. There are five of these. One outcome is associated with the first option of saying nothing, and then four are associated with the options of telling a lie or telling the truth. Why four? Because each of these options can arise under two conditions: one in which they are believed by the torturer and one in which they are not. We shall attach payoffs to each of these outcomes. For present purposes, these payoffs will simply represent the ordinal preferences of the suspect over the different possible outcomes. In other words, the numbers are strictly arbitrary and cannot be used in any expected utility calculations. Ideally, the decision problem should be modelled using expected utility theory, but that would make it slightly more complex and I’m pretty sure the gist of the argument can be appreciated without it.

Anyway, the following is my suggested payoff schedule for the torture suspect. In formulating it, I assume that the suspect is a loyal member of a terrorist cell and would prefer to remain true to their cause; but I also assume they experience a severe disutility when tortured:

Outcome A: If the suspect says nothing they will be tortured but they will have remained true to their cause. This gives them a payoff of −0.5.

Outcome B: If the suspect tells a lie, and the lie is believed to be the truth, they will not be tortured and will remain true to their cause. This gives them a payoff of 1.

Outcome C: If the suspect tells a lie, and the lie is not believed to be the truth, they will be tortured but will have remained true to their cause. This gives them a payoff of −0.5 (same as outcome A). 

Outcome D: If the suspect tells the truth, and it is believed to be the truth, they will not be tortured but will have betrayed their cause. This gives them a payoff of 0.5. 

Outcome E: If the suspect tells the truth, and it is not believed to be the truth, they will be tortured and will have betrayed their cause. This gives them a payoff of −1.

Remember, not too much turns on the actual numbers presented here. What matters is the order in which the suspect prefers those outcomes. What’s clear from the above is that telling a lie (if believed to be the truth) is the preferred outcome, with telling the truth (if believed to be the truth) coming in second, saying nothing and telling a lie (if not believed) ranking equal third, and telling the truth (if not believed) coming in fourth. So unless the torturer can distinguish between a truth and a lie, the suspect's  preferred choice will be to tell a lie or say nothing. If we add into the mix the general axiom of rational choice — that people will pick the option that is most likely to lead to their preferred outcome — we generate the following defence of premise (1):

• (6) Torture can only be an effective and reliable means of obtaining information if it gives the potential torture victim (Suspect) the incentive to tell the truth. 

• (7) When confronted with the possibility of being tortured, the suspect has three options: (i) say nothing; (ii) tell a lie; and (iii) tell the truth. These options lead to five different possible outcomes (A - E) 

• (8) The suspect has the strongest incentive to do whatever will yield the highest payoff. 

• (9) Unless the suspect believes the torturer has some way to distinguish between a truth and a lie, saying nothing or telling a lie will always yield a higher payoff than telling the truth (because B is better than D, which is better than A and C, which in turn are better than E). 

• (10) Therefore, unless the suspect believes the torturer has some way to distinguish between a truth and a lie, the suspect will have a stronger incentive to tell a lie or say nothing, than to tell the truth (from 7, 8 and 9). 

• (11) Therefore, torture cannot be an effective and reliable means of obtaining information, unless the suspect believes the torturer has some way to distinguish between a truth and a lie (from 6 and 10).

I appreciate this isn’t a perfect defence of premise (1), but I think it’s close enough to work (and in any event (1) could be reformulated in order to be a better fit with (11)).

The premises don’t appear to be too controversial to me. The only potentially controversial point I can think of is the suggestion that a committed terrorist would follow the axioms of rational choice. Some might argue that such people are irrational. Is this plausible? Perhaps, but that kind of irrationality would probably only concern the content of their beliefs and desires, not whether or not they have transitive preferences that they seek to maximise. The argument given above only assumes rationality in terms of transitive preferences, not rationality of beliefs and desires. So there shouldn’t be an issue here.


3. Conclusion
This brings us to the end of part one. To sum up, one way in which to undercut those who think that torture is permissible in certain extreme cases is to challenge one of their key assumptions, namely: that torture is an effective and reliable means of obtaining information. Such a challenge can be mounted in the form of the epistemic argument that was given above. This argument maintains that, in order for torture to be effective, the torturer must be able to recognise the truth and the torture victim must believe that the torturer will stop once the truth has been spoken. This is the basic principle for epistemic reliability of torture. The problem is that the conditions stated in that principle do not hold in empirically plausible cases.

In this post we have seen how one might defend the basic principle underlying the epistemic argument. In the next post we see whether it is true to say that the conditions highlighted in that principle do not hold in empirically plausible cases.

Hauskeller on Enhancement for the Common Good

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This is going to be another post on the ethics of human enhancement, a topic I have covered several times before. This one requires a slightly circuitous introduction, so bear with me…

A couple of years back two Dutch (or, at least, Netherlands-based) philosophers, Anton Vedder and Laura Klaming, wrote an article defending human enhancement for the common good. The example they chose to make this case was the, admittedly speculative, use that transcrancial magnetic stimulation (TMS) could be put to in enhancing memory and eyewitness testimony.

Vedder and Klaming’s article is an interesting one. It discusses scientific work done on memory enhancement, and points to some studies suggesting that TMS may have a positive effect on memory. It also discusses some epistemological and ethical concerns associated with the use of TMS for memory-enhancing purposes. The central conceit of the article is that by focusing on the contribution of human enhancement to the common good, we can help to move the enhancement debate out of its traditional, stale and somewhat staid parameters.

As the authors see it, the traditional enhancement debate is too bound-up with the effect of enhancement at the individual level and hence fails to see the social goods that might flow from the use of enhancement technologies. (Incidentally, I don’t know that this is a fair characterisation of the debate, but I’m willing to ignore it since it doesn’t really detract from the discussion I want to pursue.) By highlighting the role that enhanced memory could play in improving legal decision-making — which relies heavily on eyewitness testimony, which in turn relies on memory — the authors try to give us one such social good and so one alternative perspective on the enhancement debate.

The problem with all this is that Vedder and Klaming fail to make explicit the argument they are using to support their central thesis, namely: that enhanced memory actually would contribute to the common good. It may seem obvious what this argument is given the brief summary I outlined in the previous paragraph, but one should always be wary of “obvious” arguments, they have a tendency to contain dubious implicit premises.

Fortunately, Vedder and Klaming’s article appeared in AJOB Neuroscience, which allows numerous peer commentaries to follow an original article like theirs. One of those commentaries, by Martin Hauskeller, did the hard work of reconstructing their argument and subjecting it to critical scrutiny. The remainder of this post is taken up with the exposition and analysis of Hauskeller’s piece.


1. The Enhancement-for-the-Common-Good Argument
I start with Hauskeller’s attempted reconstruction of Vedder and Klaming’s argument. Relying on some textual evidence, Hauskeller reconstructs it in the following manner (this is a direct lift from his article):

• (1) Eyewitness testimony “plays an important role in the apprehension, prosecution and adjudication of criminals” (reference omitted) because the decisions made by law enforcement officials rely heavily on it. 

• (2) Relying on eyewitness testimony can only be justified if it can be trusted, i.e. if there is sufficient reason to believe that it is accurate.

• (3) The accuracy of an eyewitness’s testimony depends on the accuracy of their memory, which, however, is notoriously malleable and hence unreliable.

• (4) Therefore, any means of improving the accuracy of memory is desirable with respect to the purpose of apprehending, prosecuting and adjudicating criminals.

• (5) Since, it is in everybody’s interest that criminals are found out and get convicted (and innocents do not), improving eyewitness memory is therefore beneficial for all of us (except perhaps for criminals), that is, for society as a whole.

Hauskeller has to be admired for the compressed manner in which he presents the argument, however, it is a little too compressed for my liking. The observant among you will have noted that the conclusion contains an extra premise that allows for the common-good conclusion to be drawn. I’d like to separate out that premise, as follows:

• (5*) It is in everybody’s interest (except perhaps the criminal’s) that criminals are found out and get convicted, and that innocents do not. 

• (6) Therefore, it is beneficial for all of us (except perhaps criminals) for eyewitness memory to be improved (from 4 and 5*).

As Hauskeller notes, most of this argument is unobjectionable. Premise (1) seems obviously true: heavy reliance is indeed placed on eyewitness testimony throughout the legal system, particularly in criminal trials. This is not to say that other kinds of testimony are unimportant (e.g. expert testimony) but it remains the case that eyewitness testimony is central to legal decision-making processes. In any event, expert testimony, since it is mediated through an expert witness, relies on memory to some extent and so is vulnerable to the same kinds of problems. Premise (2) is a little tricky. It seems like common sense, but the suggestion that the use of unreliable or inaccurate testimony is never justified might be too strong (some probability of error could be tolerated). Still, it certainly seems true to say that the use of such testimony is more justifiable if it is accurate. Premise (3) is more straightforward: since eyewitness testimony depends on memory, the accuracy of the former would depend on the accuracy of the latter.

Premise (5*), and the inference drawn from it and (4) to (6), is where the problems really lie. While it all looks pretty attractive at a first glance — criminals are bad for society, ergo it would be better if they could be accurately identified — Hauskeller thinks its attractiveness wanes if we take a more in-depth look at it. Let’s do that next.


2. The Complex nature of the Common Good
As Hauskeller sees it, there are two main problems with the argument. The first comes with the inference from (4) and (5*) to (6); the second then comes with the understanding of the common good that is implied by this inference.

The problem with the inference is that it relies (implicitly) on a highly questionable principle. It may well be true that everyone has an interest in the detection and prosecution of criminals (and the exculpation of innocents), but it may not be true that having an interest in the detection and prosecution of criminals necessarily implies that we have an interest in doing everything that furthers that aim. In other words, to get from the former claim to the latter claim we would have to accept the following principle of derivation (so-called because it specifies how to derive one interest from another interest):

Simple Derivation Principle: If we have an interest in X, then we also have an interest in doing anything that helps us to secure/attain X.

This derivation principle might be acceptable if we only had one primary interest — in other words, if the only thing we cared about was the detection and prosecution of criminals — but this in not the case. We have many interests and it is quite possible that these other interests clash with policies that serve our interest in the detection and prosecution of criminals. As Hauskeller puts it, “we can never infer from the fact that one of our interests is served by a particular practice that this practice is for the common good…unless we know for certain that none of our other interests are violated or threatened by it.” This suggests we need to modify our derivation principle:

Conflict Derivation Principle: If we have an interest in X, then we have an interest in doing anything (Y) that helps us to secure/attain X provided that Y does not conflict with our other interests.

Although this principle gets us closer to where we need to be, it doesn’t go all the way. There are presumably cases in which our interests conflict but one interest trumps another such that we are willing to sacrifice or forego the one in order to obtain the other, or, alternatively, we are willing to partly serve one interest and party serve another to get the best overall mix of interests served. We could call any principle that allows us to do this the “satisficing principle”. Unfortunately, I couldn’t even begin to formulate such a principle here since the issues it raises are quite complex. I’ll simply leave it as a theoretical need for now.

The upshot of all this is that the common good is not a simple, unitary phenomenon. It is a complex melting pot of different, sometimes conflicting, interests. By suppressing this complexity in their discussion, Vedder and Klaming have made the case for enhancing memory for the common good too straightforward.


3. Autonomy and Truth-telling
Hauskeller’s objection to Vedder and Klaming’s argument is not purely an abstract one, based on the mere possibility of conflicting interests, it is also a practical one, based on the fact there are some interests that do in fact clash with the one identified by Vedder and Klaming. In particular, it would seem that the use of enhancement in order to detect and prosecute criminals might clash with our interests in privacy and autonomy. To be fair, Vedder and Klaming are aware of this possibility, but Hauskeller thinks they have a slightly cavalier attitude towards it.

There are some standard examples that can be used to underscore this point and Hauskeller isn’t afraid to use them. First, there is the fact that perpetual surveillance or “enhanced interrogation techniques” (to employ a euphemism) would no doubt make the jobs of law enforcement officials easier: they would be better placed to detect and prosecute criminals. But that doesn’t necessarily make those things desirable. To subject ourselves to perpetual surveillance would require a reduction in privacy, and to permit enhanced interrogation would involve tolerating excessive and harmful autonomy-violating practices. Are these sacrifices worth it just to reduce crime and make the streets safer? Perhaps, but it would demand a sufficiently compelling satisficing principle to make that case. And to the extent that memory enhancement might involve coercion and revelation of personal information, the similar demand may arise for it.

A final point that Hauskeller mentions, which I thought was interesting, concerns Vedder and Klaming’s case for enhancing memory. In the reconstructed argument given above, the two authors appear to suggest that an unreliable memory is the main problem for eyewitness testimony, but really this is only half the problem. The other problem is that eyewitnesses may try to deliberately deceive us — i.e. to lie. To overcome that problem we would require some sort of lie detection or truth serum, which may have to be administered in a coercive, autonomy-undermining manner. Would it be worth it just to get the truth? Again, we have to ask the question about conflicting interests and how best to manage them.

Okay, so that brings us to the end of this discussion. To be sure, Hauskeller’s objections to the Vedder and Klaming are not earth-shattering, and, in reality, they aren’t really “objections”, properly so-called. They are really just possibilities and issues that need to be addressed when making the case for enhancement for the common good. Still, his point about the way in which we derive one interest from another is well-made and something we need to be careful about in this, and other, debates.

Theism and the Meaning of Life (Part Two)

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(Part One)

This post is the second part in a short series about the meaning of life. The series is working primarily off Gianluca di Muzio’s article “Theism and the Meaning of Life”, which appeared in the journal Ars Disputandi back in 2006. However, I’m trying to develop some formal reconstructions of Di Muzio’s arguments so as to improve my understanding of the arguments in this debate. My central contention, which is worth keeping in mind while reading this post, is that the debate is concerned with finding the necessary and sufficient conditions for a life that is worth living (i.e. meaningful = worthwhile).

The previous post was taken up with addressing William Lane Craig’s claims about the role that theism and immortality play in making life worth living. Roughly, Craig argues that without God and without immortality there can be no meaning in life. Since neither of these things are present in the atheistic-naturalistic worldview, he concludes that that worldview is practically impossible: no one could continue living in the knowledge that life was meaningless.

Burrowing a little deeper into his claims, we suggested that his argument reduced to the principle that one’s life can only have meaning if it plays a permanent role in some higher plan. I argued that this principle was flawed because, on the basis of some simple counterexamples, it appears that immortality and the existence of a higher plan are insufficient for meaning in life.

This left open the possibility that there could be some other, non-theistic, account of the necessary and sufficient conditions for meaning. In this post, we will consider Di Muzio’s proposal for just such an account.


1. The Goods-based Account of Meaning
As we saw at the end of the last post, there are really only two major possibilities when it comes to developing an account of meaning. The first possibility is to argue that everything has relative meaning. That is to say, it derives its meaning from something else. This possibility is unattractive because it leads to an infinite regress, something that Craig himself wishes to avoid. That leaves us with the second possibility: that some things are intrinsically meaningful. That is to say, they provide both the necessary and sufficient conditions for a life worth living in and of themselves.

Theists may wish to argue that God’s higher plan is the only thing that could have this kind of intrinsic meaning. Without investigating any proposed divine plans (e.g. building an eternal kingdom) in detail, we already have some prima facie reasons to doubt this: many higher plans seem to lack intrinsic meaning, so why think God’s plan is any different. So let’s explore another possibility. The possibility that there are some things, here on earth, that are intrinsically worthwhile.

Di Muzio argues that an obvious candidate for things that are intrinsically worthwhile are those things that are morally valuable. Indeed, worthwhileness and moral value seem to be natural bedfellows: to say that X is morally valuable seems to entail that it is worth doing. What’s more, this entailment relation would seem to hold even if the person pursuing that which is morally valuable has no role to play in a higher plan.

There are two ways to argue this. One is to imagine an individual life — e.g. the life of the charity worker — which pursues something that is morally valuable but which, for some reason, is excluded from God’s plan. Then ask the question: would that life suddenly seem worthless if it lacked a role in God’s plan? Di Muzio says “no”: if there is recognisable value in what the person has done, then it would be absurd to deny that their life was worthwhile. This is true even for theists because they typically recognise that generosity and charity are valuable.

Still, some hardy theists might resist the negative answer so there’s another tack one can take. Recall from earlier that God’s plan has to have intrinsic meaning lest we risk an infinite regress. So ask the question: what would make it the case that God’s plan is intrinsically meaningful? It can’t be simply because it’s his plan: that would be stipulative, arbitrary and vacuous. The only other possibility is that, in formulating and executing his plan, God is pursuing some goal or end that is intrinsically valuable. In other words, even the meaningfulness of God’s plan seems like it has to derive from the pursuit of something (some end or good) which is intrinsically valuable.

(Note: Commenter TaiChi makes an extended argument of this sort in his reductio of Craig’s position in part one of this series.)

These two arguments give support to what we can call the goods-based account of meaning. According to this account, the following principle of meaning holds true:

Access to Value Principle (AVP): If a person has access to intrinsically valuable activities in their lives, then their lives are meaningful

This principle identifies for us the sufficient condition for meaning, namely: access to value. It should be noted that access to moral value is not the only thing that is included in this account. Indeed, classically it was held that three things have intrinsic value: the good, the true, and the beautiful. How exactly they manage to do this is a topic taken up in Thaddeus Meutz’s recent article in Religious Studies. I’ll not discuss these here. All I will suggest is that any life that has access to those things would, on the goods-based account, be meaningful.

Although the AVP denies that God is sufficient for meaning, it does not deny that God is necessary for meaning. An additional argument is needed to prove this, as follows:

• (1) If a person has access to intrinsically valuable activities in their lives, then their lives are meaningful (AVP). 

• (2) Even if God does not exist, a person will have access to intrinsically valuable activities. 

• (3) Therefore, even if God does not exist, a person’s life is meaningful. 

• (4) Therefore, God is not a necessary condition for meaning.

No doubt theists will wish to deny the truth of (2). They will argue that God is the ontological grounding of all that is valuable. Without him, there can be no access to value. I’ve already discussed this claim at length elsewhere. To summarise, I do not think it is plausible. I think values neither need nor require an ontological grounding of the sort envisaged by theists. Thus, this rebuttal does not work.
So, with the help of the AVP and the preceding argument, we end up where we wanted to be: with an account of meaning that denies that God is either necessary or sufficient for meaning.


2. Immortality and Fragility
In effect, we have now successfully defeated Craig’s claim that both God and immortality are necessary (and sufficient) for meaning in life. Still, there are some lingering doubts. In particular, there are some doubts about the role of immortality in our account of meaning. Even though we now know that immortality cannot in itself make our lives meaningful — the oft-cited example of Sisyphus pushing his rock up a hill for eternity is enough to show this — might it be the case that immortality provides additional meaning? In other words, might it be true that immortality makes life more meaningful than it might otherwise be?

Many are seduced by this line of reasoning, atheists and theists alike. Consider the decision problems illustrated below. In the first decision problem, we must choose between an immortal life with no access to value (like the life of Sisyphus or an eternity in Hell), a mortal life with access to value, and no life at all. In this case, the preferable option seems obvious: the finite life with access to value would be more worthwhile than the others. But things are not so straightforward in the second decision problem. There, we must choose between an immortal life with access to value, a mortal life with access to value, and no life at all. When confronted with those options we might be tempted to say that the immortal life is to be preferred to the mortal one.

And this might provide a backdoor for the theist. How so? Well, the theist can argue that if an immortal life (with access to value) is more meaningful than a mortal one (with access to value), then God is the only being that can provide us with it. For what is heaven if not (on the common view) an eternal kingdom in which we can carry on accessing the values — love, friendship, family, the pursuit of knowledge — that we access here on earth, only forever and ever and ever.

Di Muzio frames this argument in terms of something he calls “fragility”. Basically, he argues that the problem for the atheistic view is that our access to value is fragile. It can easily be taken away or reversed by calamitous events. He gives the real example of a group of children, happily playing in a yard, being bombed to death in Sarajevo in the early 90s. Although they lived in conditions that were sufficient for meaning (Di Muzio is clear about this), they did so for a fragile and fleeting moment. Would it not be better if they were given an immortal existence in heaven?

Call this the problem of fragility:

• (5) A life in which one’s access to value is fragile (i.e. can be taken away) is less meaningful than a life in which one’s access to value is permanent. 

• (6) On atheistic-naturalism, everyone’s access to value is fragile (because we are all mortal). 

• (7) On theism, at least some people’s access to value is permanent (because of immortality in heaven). 

• (8) Therefore, life is more meaningful on theism than it is under atheistic-naturalism.

Now let’s reiterate, this argument does not say that theism is either necessary or sufficient for meaning — the AVP is still doing all the heavy lifting in that regard. But it does suggest that there is more meaning in a theistic universe because it’s possible that God can create a realm in which access to value continues forever.

As it happens, Di Muzio seems to be happy to reach this conclusion. His intent was to show that the theistic conception of meaning proposed by Craig fails, and that really the theistic view of meaning is parasitic upon the AVP. He does not need to go further and argue that theism is antagonistic to meaning. But I am not so happy to reach this conclusion. It’s not that I have any deep objections to it, it’s just that I think it’s worth exploring whether the above argument goes wrong at any point.
And, indeed, there seem to be three possible flaws to me.

First, premise (1) might be wrong. As Bernard Williams famously argued, an unending life might lose its worthwhileness by causing tedium: a dulling of one’s appreciation for that which is valuable. In a footnote, Di Muzio rejects this view, citing some more recent objections to Williams’ argument. There is a rich literature on this point that I don’t have time to explore today (perhaps some other day). Still, I raise Williams’s argument as being one way in which to rebut premise (1).

Second, premise (2) might be wrong. There are several in the transhumanist community who are actively working on projects that would help us to defeat old-age and death. The most famous of these is, of course, Aubrey de Grey, whose views I discussed a while back. These projects may be largely aspirational at this point, but they nevertheless point to the possibility that (2) could be false. Some might object that even if those projects do succeed, we would not achieve true immortality since our lives would be constrained by the lifespan of the universe. There are two responses to this: (i) our universe may be future-infinite (I’m not sure what the best current theories say on the matter) and (ii) we would still have plenty of additional time to play around with, enough to make our lives seem very worthwhile indeed (perhaps more so than life in heaven, if one takes into account the problem of uncertainty to which I allude below). A more serious concern about these life-extension projects is that they may force us to become excessively risk-averse and thereby lose access to several otherwise valuable activities. So, in a sense, they might make us more aware of our fragility.

Third, premise (3) might be wrong. After all, it’s possible that heaven is nothing like “business as usual”. What God has in store for us may not involve unending access to intrinsically valuable activities. I don’t know what else to say about this since any speculation about what heaven might be strikes me as being slightly silly. Presumably we just have no idea. But this very uncertainty might make the atheistic view (if it came with considerable life-extension) the more attractive one: better to go with what you know than take a risk on something else.


3. Conclusion
That brings us to the end of this series. To briefly recap, in part one I (with considerable help from Di Muzio) considered the arguments of William Lane Craig about theism and the meaning of life. Craig proposes that meaning depends on whether one has a permanent role to play in a higher plan. If one has such a permanent role, then one’s life is meaningful; if one does not have such a role, it it is not meaningful. Craig followed this by arguing that, on theism, there is such a permanent role to play, but on atheism, there is not.

I highlighted several flaws in this proposal. Using some thought experiments, I argued that having a permanent role in a higher plan was not sufficient for meaning. This suggested that something else provided the sufficient conditions for meaning. Following Di Muzio, a goods-based account of meaning was proffered. According to this theory, one’s life has meaning as long as one has access to things that are intrinsically valuable (the good, the true, the beautiful). Using some plausible premises, this account can then be used to show that God is not necessary for meaning.

But there is a lingering problem for the atheistic view. While it may not be the case that God is necessary or sufficient for meaning, he might still make life more meaningful than it could be by providing us with an eternal realm in which we can access value (heaven). However, as we just saw, this argument may have its own problems.