Corvino on the Definitional Objection to Same-Sex Marriage (Part Two)

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(Part One)

This is the second part of brief series of posts on the definitional objection to same-sex marriage. The series is working off the recently-published book Debating Same-Sex Marriage. The book is part of Oxford University Press’s point-counterpoint series and features contributions from John Corvino and Maggie Gallagher. Corvino is an ethical philosopher from Wayne State University; Gallagher is a conservative commenter and co-founder of the National Organization for Marriage. No prizes for guessing their respective points of view.

This series is focusing on a sub-section of Corvino’s contribution to the book, the sub-section that discusses the Definitional Objection. As noted in part one, this might be better termed the Ontological Objection since it relates to what marriage essentially is. The objection itself comes in three different forms. The first of those — the Argument from Tradition (AFT) — was covered in part one. This part looks at the second form, the Definitional Argument (DA).

The DA, unlike the AFT, actually does have something to do with how terms are defined for linguistic usage. However, it does so in a way that ultimately links definitions with the supposed ontology of marriage. This post breaks the discussion of the DA down into three sections. First, it presents the simplest, category-error or impossibility, form of the DA. Second, it tries to refine this version of DA and consider Corvino’s responses. Third, it closes by looking at at his consideration of the ‘civil unions’ vs. ‘marriage’ issue.


1. The Impossibility version of the DA
Perhaps the most obvious way in which to interpret the DA is as a kind of impossibility or category-error claim. In other words, to construe proponents of the DA as claiming that it is an outright error to ascribe the label “marriage” to same-sex unions. To call such unions marriages is akin to referring to the existence of a “square ball” or calling a chicken a “duck”. Indeed, these are not just fanciful examples that I cooked up, they have been used by opponents of same-sex marriage. For example, here’s Maggie Gallagher (Corvino’s main foil in this book) on the chicken/duck example:

Politicians can pass a bill saying a chicken is a duck and that doesn’t make it true. Truth matters.

That’s all well and good, but what kind of argument can be mustered up in defence of such a category-error claim? Here’s an initial suggestion:

• (1) “Marriage” is exclusively, necessarily and essentially defined as “a union between one man and one woman”. 

• (2) Same-sex unions are not unions between one man and one woman. 

• (3) Therefore, same sex unions cannot be called “marriages”.

Just a couple of quick words about premise (1) here. In saying that marriage is “exclusively” defined as a union between one man and one woman, I’m not suggesting that other things cannot be added to the definition. For instance, it may be that marriage is more-properly defined as a “loving union between one man and one woman”. Indeed, there could well be some opponents of same-sex marriage that feel lovingness is an essential part of marriage. That’s fine, I have no wish to exclude those kinds of additional features. The exclusivity clause that I added to the premise was merely intended to exclude the application of the “marriage” label to unions that are not between one man and one woman. Presumably, that’s the kind of exclusivity that proponents of the DA want since that’s what supports their category error claim.

So much for the clarification, what about the argument itself? Well, the obvious thing to note is that it has very little normative power. It merely says that we cannot call same-sex unions “marriages”, but it does not deny the reality of morally valuable same-sex relationships. This would give us some space to create separate labels that can then be used to afford legal recognition and protection to such unions. This is possibility that has been adopted in some jurisdictions and its merits will be considered in the final section of this post.

Acknowledging that possibility, there is still the fact that the exclusive use of the label has some normative significance. In fact, that’s why proponents of the DA make that argument in the first place. So we need to probe a little deeper and consider why labels can have such normative weight and what implications this has for same-sex marriage.


2. The Normative Weight of Labels
An easy response to the DA would be to argue that labels are arbitrary. Whether we call a table a “table” or a “schmable” is of no great matter. It is purely a question of aesthetic, not moral, preference. Given this arbitrary nature, it does not much matter whether we choose to extend the label of “marriage” to cover same-sex unions or not. What’s all the fuss about really? The more sophisticated proponents of the DA have a response to this.

Corvino singles out one such respondent for special consideration. His name is Robert H. Knight and he is a conservative writer. Knight notes that labels are not purely arbitrary. If we apply a label to an entity or state of affairs that we care about, then we would be well-advised not to extend its application in such a way that it applies to qualitatively different entities or states of affairs. To emphasise this point, Knight uses the example of the Maui Onion:

”Maui Onion”: The Maui onion is a particular breed of sweet onion that is only grown on the island of Maui. It has certain properties that make it more desirable (in certain contexts) than other onions. In particular, it is sweeter and less pungent than the typical onion. In other words, the label “Maui Onion” is used to pick out a distinctive kind of entity that we might care about (depending on the flavours we are looking for). Thus, if the label “Maui Onion” were extended to cover all onions grown in Hawaii, that would be wrong (or, at a minimum, unfortunate).

The example is superficially pleasing, and one can sort of imagine how it might be used to make an analogical argument against same-sex “marriage” (I won’t set out that analogical argument here). But the details of this are questionable. Corvino detects at least three flaws.

First, the pleasingness of the example is largely attributable to the fact that extending the “Maui Onion” label to cover all onions frustrates reasonable human purposes. If you or I go into a store to buy an onion, and we ask specifically for a “Maui Onion”, but because of definitional changes we end-up getting an ordinary, pungent non-sweet onion, we would be justifiably disappointed. We wanted to cook a dish with a particular matrix of flavours, but we are no longer able to do this because of the mix-up. Indeed, we would probably have to invent a new label to pick out the particular onion we wanted. The problem is that no equivalent frustration of reasonable purposes takes place in the marital context. Same-sex partners will know who they are getting married to and will understand the type of union they are entering into, they won’t be deceived as in the case of the Maui Onion. Nor will heterosexual couples suddenly be frustrated in their desire to marry people of the opposite sex.

Second, in considering the extension of the label to all onions grown in Hawaii, the example ignores hard cases. Consider, the following variation (Corvino’s):

Kauai Onion: Suppose that scientists/horticulturalists manage to create an onion that is genetically identical to the Maui Onion. This onion is then taken to the island of Kauai and grown in very similar conditions to those found on Maui. The end result is an onion that tastes and smells the same as a Maui Onion. Does this new onion deserve the label “Maui Onion”?

This case is much more difficult than the original one. True; there are some differences between the original Maui onions and the new Kauai ones, but they seem relatively trivial (really only a change in geographical location). Since what we care about is taste and aroma, and since the new onion is practically identical in these respects, it would seem churlish to refuse to apply the label to it. But then why couldn’t the same be true of the label “marriage”? Couldn’t it be that same-sex unions share a sufficient number of structural similarities with heterosexual unions such that denying the label “marriage” to those unions would be like denying the label “Maui Onion” to the genetically identical ones grown on Kauai?

Opponents will no doubt balk at this suggestion, arguing that is misses what is morally important about marriage. But this objection itself misses the point. The DA is supposed to derive its strength from the power of existing definitions and labes, it’s not supposed to get us into a debate about the morally desirable features of marriage. It’s a conceptual, category-error style argument, not a purely moral one. We can have those arguments about the morally desirable features of marriage if we like — indeed, we will have them — but they will be structurally different from the DA.

This brings us to the third and last of Corvino’s responses to the Maui Onion example. It is this: proponents of the DA sometimes confuse a conceptual-definitional objection to same-sex marriage with a consequentialist one. In other words, critics often oppose the application of the “marriage” label to same-sex unions on the grounds that this would have disastrous consequences for traditional marriages (e.g. by distracting from the child-centred focus of marriage). But in doing this they step outside the bounds of a purely definitional argument. Corvino is willing to debate them on the consequences of recognising same-sex marriages, but only after showing that the DA itself doesn't work.


3. Civil Unions vs. Marriages
Many countries and (some) US states have introduced legislation that provides for the legal recognition of same-sex “civil unions” but not same-sex “marriages”. Sometimes, these legal frameworks are said to introduce same-sex marriage in all but name. Assuming that the two institutions are legally and socially equivalent, what would a proponent of same-sex marriage have to complain about? Corvino ends his discussion of the DA with a couple of quick comments about this (with particular references to the experiences in the state of Vermont).

The first is that, in many instances, civil unions are not legally and socially equivalent to marriages. Oftentimes, partners in civil unions are denied access to the full range of legal rights and responsibilities associated with marriage. Other times, even if equality is provided for in law, the difference in labels leads to differences in social treatment. Such as when a hospital administrator, either through ignorance or prejudice, does not allow full access rights for civil partners. So it’s not clear that difference in labels is truly meaningless in this context.

The second comment is that legal and social equivalence would probably only be sustainable if people didn’t pay too much attention to the difference in labels. In other words, it would be sustainable only if people effectively read “spouse” every time they saw the term “civil partner”, and viewed civil partnerships under the same conceptual frame as they viewed married couples. But if that is what people would have to do to sustain equivalence, then it would probably just make more sense to change the labels so that civil unions were called “marriages” (or maybe vice versa). This, he suggests, is effectively what happened in states like Vermont and Connecticut, which experimented with “civil unions” for a while before eventually granting marriage licences to same-sex couples.


4. Conclusion
To sum up, the DA tries to object to same-sex marriages on the grounds that it is wrong — tantamount to a category error — to apply the label “marriage” to same sex unions. But for the argument to work, there has to be some reason for thinking that definitional labels are normatively significant, not arbitrary. Although there may be occasional reasons for thinking this (e.g. as in the Maui Onion case), those reasons do not seem to apply to the same-sex marriage case. Furthermore, we must be careful to separate the DA from arguments that focus on the morally desirable features of interpersonal relationships, and moral consequences of recognising same-sex marriage. The DA is about the moral weight of our labels and definitions, not about the moral structure of the world outside those labels (at least, that’s how I read Corvino’s criticisms here).

That’s not to say that the moral structure of the external world is unimportant in this debate — of course it is — but it will be treated separately. Indeed, we’ll start treating it in the next post by looking at the New Natural Law Argument against same-sex marriage. This argument proposes that the marital union is essentially constituted by ongoing reproductive type acts between spouses, and that this essential constitution is morally valuable. We’ll see what we can make of this the next day.

Corvino on the Definitional Objection to Same-sex Marriage (Part One)

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Obama’s recent public declaration in support of same-sex marriage was significant. And although I’m not sure that it will carry much weight during the election campaign (I suspect economic issues will dominate), I still think it’s worth knowing about the kinds of arguments that are slung back-and-forth between the opposing sides of this debate. In this light, I welcome John Corvino and Maggie Gallagher’s recently-published book Debating Same-Sex Marriage.

Corvino is an excellent and, may I say, witty, ethical philosopher (I actually chuckled at several points whilst reading his contribution to this book). I have covered his work before on this blog. Gallagher is far less cuddly figure, being the co-founder of the National Organization for Marriage, an organisation that campaigns vigorously against same-sex marriage. Their book is part of the point-counterpoint series published by Oxford University Press. Other entries in this series (such as Abortion: Three Perspectives) have been good, if a little patchy. And although I’ve only read Corvino’s contribution to this particular one, I think it’s probably worth reading. (Note: the book gets vicious reviews on Amazon on the basis of Gallagher's contributions)

Anyway, having been reading it all afternoon, I’ve decided to exert myself and write up a little series of posts based on one portion of Corvino’s main chapter. This is the portion dealing with the so-called Definitional Objection to same-sex marriage. In its naivest form, this objection holds that the label “marriage” is only properly applied to a union between one man and one woman. A union between two men, or two women (or indeed unions of three or more persons) cannot, obviously, be of this form. Consequently, it is wrong to even think about debating the propriety of same-sex “marriage”.

As I say, this is the simplest version of the Definitional Objection. The objection itself comes in several forms, only one of which has much of anything to do with how we define our terms. In fact, it might be best to call it the Ontological Objection, since it really has to do with what marriage essentially is.

In his discussion, Corvino looks at three versions of the objection. The first is based on the Argument from Tradition, the second is actually based on definitions (the Definitional Argument), and the third is based on concepts from new natural law (the New Natural Law Argument). He then closes with his own reflections on the definitional debate. In this series, I will cover the four parts of Corvino’s discussion, dedicating one blog post to each. I start by looking at the Argument from Tradition (AFT).


1. The Basic Version of the AFT
The AFT is not particularly persuasive, nor is it (to my knowledge) widely employed by those academics and public figures inclined to oppose same-sex marriage. Still, for all I know, it might be widely employed in “water cooler” or “down-the-local-pub” debates about this issue and thus worth addressing for this reason. I’m not sure if this is the reason why Corvino covers it, but he does so and I’m not going to question his reasons for it any further here.

The simplest way to put the AFT is as follows:

• (1) Marriage has always only been a union between one man and one woman.

• (3) Therefore, marriage should continue to only be a union between one man and one woman.

Obviously, this argument is a nonsense: the conclusion does not follow from the premises. I haven’t even tried to hide the fact: readers will no doubt have noticed the discrepancy in the number of the premises, jumping as they do straight from a premise (1) to the conclusion (3). Why was that? Well, because the argument obviously lacks a crucial normative bridging premise. That is, a principle that allows you to actually infer the conclusion from the premises.

What might that principle look like? Here’s a suggestion:

• (2) If a particular social institution has always been structured in a particular way, it ought to continue being structured in that way.

This would certainly get us to the conclusion (3). But it would do so at some cost since it looks to be obviously false. There are many institutions — slavery and female suppression to name but two — that had rich cultural traditions but which were not therefore ethically desirable. It is difficult to deny the claim that heritage and tradition are not always ethically sound. So we’ll have to look elsewhere for some principled support for the AFT.

We’ll do that in a moment. For the time being let us bend over backwards in deference to the AFT and assume that (2) is correct. Even then the AFT has problems. Why so? Because premise (1) — the empirical premise — is demonstrably false. It is simply not the case that marriage has always been a union between one man and one woman. Ethnographic evidence controverts this claim. Corvino runs through numerous examples in the text, highlighting in particular how polygamy (or, more correctly, polygyny) has been the preferred practice in many societies at one time or another, and how same sex unions have been accepted in a handful of cultures (the Nuer tribe are specifically cited as they recognised (recognise?) a form of female-female union).

Corvino suggests that some same-sex marriage opponents might try to object to this ethnographic evidence of same-sex unions. They might do so on the grounds that, even in the examples cited in the text, the partners to the alleged same-sex unions assume traditional gender roles. Such a response would be problematic on two grounds. First, most contemporary Western cultures have moved away from endorsing those traditional gender roles. And second, even if they hadn’t, it’s not like opponents of gay marriage would suddenly be happy if gay couples adopted traditional gender roles in their unions. They don’t support the gender roles themselves; they support the particular sexual make-up of a monogamous heterosexual marriage. Thus, this kind of response, if anyone was minded to give it, would be inadequate.


2. The Hayekian AFT
It looks then, to all intents and purposes, like the AFT is a resounding failure. Can nothing at all be said in its favour? Well, ignoring the factual problems that were just cited, Corvino does identify one slightly more sophisticated version of the AFT, one that actually attempts to motivate the principle underlying premise (2). This is the Hayekian argument in favour of traditional institutions (which might also be called a Burkean argument, though there might be some differences in the formulation if this were the case). And although this argument would still run afoul of the arguments just offered against premise (1), it is worth briefly considering here.

Hayek was most famous for his work in economics, particularly his work defending the merits free markets over centrally-planned ones. The essence of his critique of centrally-planned economies lay in his observation about the information-gathering powering of the market. As Hayek saw it, the kinds of information that one needs in order to make sensible decisions about what kinds of goods to produce and what kinds of goods to buy is bewilderingly complex. No central planner could effectively collate all that information, analyse i,t and then use it to make informed decisions about what kinds of goods and services ought to be produced in an economy, and the price at which they should be sold. It is much better to leave that kind of information-gathering to dispersed private individuals, who can assess locally-available fragments of the relevant information and use this to make their own rational decisions about production and consumption. Thanks to some feedback and self-organisation, this information can then be collated into the prices that are charged on the market. This can be done without the direct knowledge or awareness of the particular individuals making up the market.

The upshot of this is that, for Hayek, prices on the free market are informationally-rich signals that we would be well-advised to follow when making our economic decisions. What’s more, this advice sticks even when we are not aware of all the information that underlies those signals. The claim of the proponent of the Hayekian AFT against same-sex marriage is going to be that something similar is true of traditional social institutions like marriage. In other words, like price signals, traditional social institutions embody lots of underlying information gathering and analysis. This means that these institutions could have strong underlying normative rationales that are simply not transparent to us right now. Consequently, we would be well-advised to respect them, even if we’re not quite sure why.

The analogy is troubling, to say the least. While Hayek had a decent enough argument to make about price signals, whether that carries over to cover all social institutions is another matter. Most mainstream economists recognise that there are situations in which the information-gathering power of the market fails (e.g. because important costs are excluded from individual economic decisions, as in a Tragedy of the Commons type of scenario). In those cases of market failure, we would not be well-advised to respect the market signals. The problems for the Hayekian AFT is that something like a market failure (call it a moral failure) could easily happen in the context of cultural transmission. Indeed, there are obvious examples of this: slavery was once a widespread social institution, transmitted down through the ages in a long unbroken chain, yet it is now recognised as being morally corrupt.

So we can’t simply accept, on faith, that traditions will get us closer to the moral truth. Proponents of the Hayekian argument will need to show why the case of marriage is special, and less likely to embody a moral failure like slavery. I suspect that they are unlikely to be able to do so. Indeed, I think there are probably good reasons to think that the mechanisms through which social institutions are formed do not “track the truth” of morality. Furthermore, even if this was the case, the Hayekian argument would not go far enough. As Corvino points out, to be successfully employed against same sex marriage, the argument would need to show not only that there are good reasons for respecting a particular institution (in this case heterosexual monogamous marriage), but that there are also reasons for not extending that institution (to cover homosexual marriages). This, to Corvino, would require an unwarranted faith in the wisdom of tradition.

In conclusion, the AFT does not seem to work. In its simplest form, it is factually inaccurate and lacks a sound normative principle. In its more sophisticated Hayekian form it still fails because it does not give reasons for thinking that Hayekian-style loyalty is warranted in the case of social institutions like marriage.

We’ll look at the Definitional Argument in the next post.

Kramer on the Purgative Rationale for Capital Punishment (Part Two)

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(Series Index)

(Part One)

This is the second part in a brief series of posts on Matthew Kramer’s defence of the purgative rationale for the death penalty. The defence can be found in Kramer’s (largely impressive) book The Ethics of Capital Punishment. According to the purgative rationale, death is a justifiable punishment whenever it is needed to purge defiling evil from a moral community. Although the notions of “purgation” and “defiling evil” have religious connotations, Kramer thinks they can be embraced on strictly secular grounds.

The goal of this series is to try to reconstruct Kramer’s argument for the purgative rationale. This is not an easy task since Kramer, despite his lengthy analysis and attempted defence of the rationale, never takes the time out to present it in a valid logical form. This makes his discussion slightly infuriating and is something I’m trying to correct for in this series. I am, however, aware that my summary may fail to do justice to the 150 or so pages that Kramer dedicates to the topic in his book.

Nevertheless, I think most of the necessary groundwork was laid in part one and that I can now proceed to formulate what I take to be the purgative argument for capital punishment. Before I do that, I ask the reader to recall from part one the test that Kramer proposes for any successful defence of the death penalty. The test is as follows:

Kramer's Test: A principle or rationale for the death penalty is successful if and only if it specifies some morally acceptable/desirable end for which death is:

(a) the minimally effective means for securing that end (i.e. it is compatible with the Minimum Invasion Principle); and 

(b) the maximally effective means for securing that end (i.e. it is compatible with the Humane Treatment Principle).

This test effectively demands that death be uniquely specified by the purgative rationale. As it happens Kramer thinks the purgative rationale does this.

Let’s now see why he believes this to be the case. The discussion below is divided into two parts (numbering continues from part one). The first presents the basic argument for the purgative rationale and highlights some of its important features. The second discusses some problems for this argument. This consists of my very preliminary thoughts, and I would be keen to receive comments that either elaborate or reject my concerns, add additional concerns, or, indeed, identify further supports for Kramer’s argument.


3. The Purgative Argument for Capital Punishment
What follows is my reconstruction of Kramer’s basic argument for the purgative rationale. For those who would like to see whether I’m being fair to him (and who have access to a copy of the book) the reconstruction is based on what Kramer says on pgs 186-187 and on pgs 226-230 (mainly the latter). Additionally, I have tried to take into consideration some of what Kramer says in response to his eleven “queries” about the rationale, but I can’t do justice to all of that. Luckily, several of those responses are tangential to the main argument.

The argument begins with the discussion of some paradigmatic cases of defiling evil. I presented these cases in part one. The cases (Richard’s case and Joseph’s case) involve people who carry out (in a culpable manner) depraved and inhumane acts against other human persons. These acts include torture, mutilation, rape and murder, and are typically accompanied by great sadistic pleasure and a sense of empowerment. Kramer’s argument is that people who engage in acts like this (i.e. people like Richard and Joseph) need to be killed in order to restore the moral standing of the communities in which they live. To quote from the man himself:

“…each of them has perpetrated grotesque iniquities that besmirch the moral standing of the community in which each of them respectively abides. Though there is not any collective responsibility for the original iniquities themselves (in the absence of any facts that would implicate people who were acting as public officials), there is collective responsibility for the continued existence of each of the perpetrators. Because there is collective responsibility of the latter kind, and because the continued existence of Richard or Joseph defiles any community which bears that responsibility, such a community is under a moral obligation to resort to capital punishment." (pgs 228-229)

We have here the bones of the argument. It works from a general principle about collective responsibilities, through some specific cases of defiling evil, to a conclusion that justifies the imposition of the death penalty. I think that gives us something along the following lines:

• (1) If the moral order and standing of a community C (relative to humankind) has been besmirched or defiled, then C has a duty to do what is necessary to restore that moral order and standing (the Restoration Principle). 

• (2) In certain empirically plausible cases (such as Richard’s and Joseph’s) a person (S) can besmirch or defile the moral order and standing of the community in which they abide. 

• (3) Therefore, in those empirically plausible cases, C has a duty to do whatever is necessary to restore their moral order and standing. 

• (4) In these empirically plausible cases, the only thing that will restore the moral standing of C is the death of S (the Exclusivity Claim). 

• (5) Therefore, in empirically plausible cases, C has a duty to kill S in order to restore their moral order and standing.

Three general comments about this argument are appropriate here. First, one thing that might jump out at you is that, starting with premise (2), the argument specifically attempts to apply itself to empirically plausible cases. One might wonder whether this is necessary, since, from a philosophical perspective, sometimes all that matters is whether something is “in principle” justifiable or, conversely, “in principle” unjustifiable. This is true, but Kramer is very explicit about his desire to show that death is appropriate in empirically plausible cases. One can see his point: it would be a hollow victory indeed for the death penalty proponent if they could only show its in principle justification. Hence, the argument is explicitly formulated in such a way that it applies to empirically plausible cases.

Second, and following on from this, it is important to note that those empirically plausible cases will be few and far between. Again, this is something about which Kramer is quite explicit. He does not think that every murder, or every rape or every instance of serious violence will warrant the death penalty. Only those cases involving defilingly evil conduct will merit it. Kramer accepts that the category of defilingly evil conduct is one with a fuzzy boundary, but thinks that vague concepts of this sort are unavoidable in ethics. If one is concerned about borderline cases, one should err on the side of caution and avoid execution. But Kramer argues this does not refute the fact that there are some paradigmatic cases of defiling evil and, if his argument is successful, death would be warranted in those cases.

Third, although the argument presents a relatively strong conclusion — viz. the community has an obligation to execute in certain instances — Kramer argues that this will not always settle the matter since there could be overriding obligations not to implement the death penalty. For instance, in a non-democratic regime, or in a regime without procedural safeguards for defendants, the moral worthiness of death penalty might be overridden by the corruption of the system which administers it. In those cases, the obligation need not be met. But, once again, this does not refute the fact that in at least some systems such overriding concerns will not arise. The last chapter of Kramer’s book is entirely dedicated to addressing this point. I will not have time to cover it here.

With those three comments out of the way, we can proceed to evaluate the argument. As best I can tell, the argument is valid (I formulated it so I would say that) so the key question then is whether its premises are true. It is here that I have some concerns.


4. Some Concerns about the Purgative Argument
The lynchpins of the argument, for me, are premise (1) and premise (4). Premise (1) is a lynchpin because it is what gets the ball rolling. It states a general principle and this general principle claims that communities sometimes have the duty of moral restoration. Without this principle, the conclusion that the death penalty is sometimes obligatory could not be reached. Premise (4) is a lynchpin because it makes a strong claim about the exclusive necessity of the death penalty. Effectively, it says that the death is only thing that will allow a community to discharge its restorative obligation in certain instances.

I have some concerns about both premises. My concerns about premise (1) are perhaps not best labelled “concerns”. They are really more desires for further specification and clarity. My concerns about premise (4) are rather more deserving of the label. I’ll briefly discuss both here. As I said in the intro, I would be keen to hear from readers who have their own thoughts about Kramer’s argument.

Turning then to premise (1), I have three things I would like to know more about. The first is the nature of the duty in question. I’m willing to accept, despite the fact that people have argued at length over this, that communities (as collectives) can have responsibilities. But I think I’d like to know more about the kinds of act types and tokens that these responsibilities mandate. Much has been written about collective responsibility from a backward-looking blame-imposing perspective, but, to my knowledge at least, not so much has been said from a forward-looking liability-imposing perspective. Fortunately, Kramer does say something about the kinds of duties that we expect communities to discharge and how they vary over time. The diagram below depicts his view.

As he sees it, the community owes a duty of protection to its citizens at the time at which the acts of defiling evil takes place, but this duty does not imply that the community can be blamed for every act of defiling evil that takes place. This is because there might be overriding reasons for avoiding excessive surveillance of its citizens. Once a perpetrator of defiling evil has been arrested, the community owes them the duty of ensuring that they receive a fair trial, which includes non-frivolous appeals of any determination of guilt. And finally, once guilt has been determined, the community has the duty to do something with the perpetrator which, in this instance, means that they ought to kill the perpetrator. This specification of the duties is helpful but I think I would to see more on how the specific contents of the duties is determined at each stage. Some discussion of parallel cases, not involving crime and punishment might be helpful on this score. For example, what are the duties owed by a community in the case of a famine or natural disaster, and how do they vary over time?

A second clarification I would like to see relates to the concept of “restoration”. Now, admittedly, Kramer doesn’t use that term himself but I think it is implicit in what he has to say, and I would like to know exactly what restoration of moral order and moral standing consists in. Again, some consideration of parallel cases might be helpful here. Presumably, a natural disaster which leads to great suffering upsets the moral order of a community, but how exactly does one restore the order in this case? And would actual duties of restoration be owed?

Finally, another clarification I’d like to see relates to the objects of the obligation/duty in question. Is the collective duty owed in abstracta or is it owed to specific people, such as the citizens of the community itself. Kramer speaks of the community needing to restore its moral relationship with the rest of humanity, which suggests that the duty is owed to the entirety of humanity, but I think Kramer means this in an abstract sense. Why? Because Kramer excludes the possibility that the duty could be negated or waived by those to whom it is owed. He says that no one has the authority to vacate the death penalty (i.e. no one has the authority of clemency), because the duty is owed to all persons — past, present and future — in virtue of the properties (sentience, capacity to feel pain etc.) that make them morally significant. This suggests to me that it is an abstract duty, not owed to any person or group of persons, but rather owed in virtue of the existence of certain moral values. I find this unproblematic at the individual level but are there any reasons for thinking that things are different at the collective level? Can collectives owe duties in this abstract fashion? Maybe, but I’d like to see some discussion of the issue.

Turning then to premise (4) and the more serious concerns. One thing that’s clear is that this premise is designed to ensures that the purgative rationale passes the test I outlined earlier. Passing this test is crucial since it is the reason why all other rationales for the death penalty fail. Now, Kramer does offer some defence of this premise, but nothing particularly elaborate. This is odd given the burden that this premise bears.

Kramer’s defence, such as it is, consists in considering some alternative punishments and whether they would discharge the burden of restoration. At one point he considers whether a community could restore its standing by exiling or banishing the offender from the community. He argues that although this would create physical distance between the community and the offender, it would not create any normative/moral distance. And it is this normative distance which would be needed. More significantly, he argues that life in prison, in conditions of solitary confinement, would not suffice to restore moral standing. Why? Because it would require that significant resources be expended on the continued existence of the offender, which would fail to remove the moral taint from the community (and also, I presume, would amount to tacit toleration of the defilingly evil person, which again fails to create the requisite normative distance between the community and the morally corrupting individual).

Although it’s nice that Kramer discusses these two alternatives, by themselves they seem insufficient to defend premise (4). Surely there are other alternatives that need to be discussed and repudiated. For instance, at one point, Kramer suggests that those with mental illnesses might be excused/exempted from the death penalty, even when the illness arises after arrest. To me this raises the question: would a community not discharge its duty by artificially inducing a sufficiently serious mental illness? Kramer might respond that this would be inhumane and so would run foul of his test, but this is not obviously so: why is continued biological existence with impaired mental capacity worse than death. In any event, there might be other alternatives that are less obviously inhumane. For instance, selective memory erasure might remove the more noxious elements of an evildoer’s personality, thus restoring moral order but not resulting in death. Similarly, severe behavioural reprogramming might do the trick.

I’m sure replies might be conjured up to these examples. For one thing, they might be deemed empirically implausible and so not relevant to the argument Kramer presents. For another, the expenditure of resources they entail might be deemed too high a price to pay because it would be indicative of a toleration for moral evil, or something along these lines. The problem is that Kramer never discusses these possibilities and so, at least as I read it, one of the crucial premises of his argument is improperly defended.

5. Conclusion
That brings us to the end of this series. To recap, Kramer’s goal is to offer a novel defence of the death penalty, one that overcomes the deficiencies in the traditional rationales. This novel defence consists in the articulation of the purgative rationale for capital punishment. According to this rationale, a community has a duty to kill certain perpetrators of defiling evil in order to restore their moral order and standing.

The supposed virtue of the purgative rationale is that it overcomes the problems associated with the traditional views. These problems are twofold. First, that the traditional rationales do not respect the Minimum Invasion Principle, i.e. they do not show that death is the minimally effective means to some morally desirable end. And second, that the traditional rationales do not respect the Human Treatment Principle, i.e. they also provide support for inhumane and cruel punishments. By contrast, the purgative rationale exclusively picks out death as the only appropriate punishment.

Nevertheless, there are some reasons to be concerned about Kramer’s defence of this rationale. First, the moral principle which he uses to motivate his argument seems underspecified and unsupported. And second, his defence of the exclusivity claim seems incomplete because it fails to consider other alternative forms of punishment. Neither of these concerns is necessarily fatal to Kramer’s enterprise, but they do seem like hurdles to be overcome.

Kramer on the Purgative Rationale for Capital Punishment (Part One)

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(Series Index)

Matthew Kramer’s book The Ethics of Capital Punishment is a significant achievement. Not only does it offer a thorough and up-to-date discussion of traditional justifications for the death penalty, it also attempts to offer an alternative, novel justification for it, something that Kramer calls the purgative rationale. Although I am not entirely sympathetic to this aim, I think that carving out a new territory within this already crowded intellectual space is something which ought to be commended.

The result is a book of two halves. The first half carefully dissects the traditional rationales for the death penalty. They are, in order of presentation, the deterrence rationale, the retributive rationale, the incapacitative rationale, and the denunciatory rationale. Kramer finds each of these rationales wanting for a variety of reasons, some of which I highlight below. The second half of the book then presents and elaborates the purgative rationale. The discussion there covers the basic conceptual grounding of the rationale, its qualification and defence, and ends with a lengthy analysis of the procedural hurdles that must be overcome by a purgative system of capital punishment.

This raises the obvious question: what is the purgative rationale for the death penalty? Very roughly, it is the following:

Purgative Rationale: The death penalty is strongly justified (i.e. both permissible and obligatory) because it is necessary in order to remove (purge) defiling evil from a moral community.

This has some obvious Biblical connotations, and indeed Kramer is forthright in acknowledging his debt to religious ideals of purgation. Nevertheless, his is a strictly secular and philosophical enterprise. He is at pains to assure the reader that the purgative rationale is free from supernatural and religious underpinnings, and can be endorsed by atheist and theist alike. To this end, he expends considerable energy in showing how the notion of defiling evil is to be understood from a purely secular perspective. This is all very interesting and stimulating work, but I will not dwell on it here. Instead, in this brief two-part series I want to reconstruct and comment on Kramer’s basic argument for the purgative rationale.

As it turns out, this is not an easy thing to do, for although Kramer is nothing if not painstakingly elaborate in his discussions, he is also somewhat elusive in his logic. At no point does he take the time out to identify and flag-up the key premises of his argument. I want to try to repair that defect in this series, accepting at the outset that I may fail to do justice to all the niceties of what Kramer has to say. Still, I can but try.

My discussion shall be divided into four parts. First, I will briefly discuss two of the traditional rationales for the death penalty and explain why Kramer thinks they fail. This is crucial since the very reasons for which they fail are the very reasons for which the purgative rationale, at least in Kramer’s eyes, succeeds. Second, I will discuss two thought experiments — paradigmatic instances of defiling evil — that Kramer uses to motivate his argument. Third, I will attempt to actually reconstruct the argument for the purgative rationale. And finally, I will briefly highlight two problems I have with the argument.

This post presents the first two parts of that analysis. The second post will present the remaining two parts.


1. Why do the Traditional Rationales Fail?
On previous occasions, I have discussed some of the traditional arguments for the death penalty. Although Kramer discusses four, the two most popular are the deterrence rationale and the retributive rationale. Essentially, they boil down to the following:

Deterrence Rationale: The death penalty is justified because it is the most effective way reduce certain kinds of criminality (usually murder, but possibly some other crimes).

Retributive Rationale: Proportionate punishment, in general, is justified because it is an intrinsic good. Death is the proportionate punishment for certain kinds of wrongdoing (e.g. murder). Therefore, the death penalty is justified.

The deterrence rationale views the death penalty as an instrumental good, something which might itself be wrong but which is necessary in order to achieve the greater good of deterrence. The retributive rationale views the death penalty as an intrinsic good, something which is good both in and of itself (in at least some instances).

It would be impossible here to go over all the problems that Kramer identifies with both of these rationales. Indeed, the detailed manner in which he explores different formulations of these rationales and subsequently criticises them is one of the great strengths of the book. But his criticisms can be boiled down to two major observations.

The first is that both rationales clash with a basic principle of (political) morality, namely, the Minimum Invasion Principle (MIP):

MIP: A policy or practice is permissible only if it is the minimally effective means for achieving some morally acceptable end.

Those who are familiar with the use of proportionality tests in the law will be familiar with the contours of the MIP. Essentially, it tells us that if a policy is going to be violative of personal rights in some way, it needs to be shown that it is actually necessary in order to achieve some morally acceptable end, i.e. that there is no alternative policy that would achieve the same end with a lesser invasion of rights.

It is easy enough to see how the deterrence rationale might clash with the MIP. The argument, which I will not defend here, is that there are other punishments, less severe than death, that also plausibly achieve the goal of deterrence. Thus, the death penalty is not the minimally invasive policy and so deterrence cannot be a good reason for endorsing the death penalty.

That much is straightforward. Seeing how the retributive rationale might clash with the MIP is rather more difficult. This is because the retributive rationale seems to come with a built-in proportionality requirement. That is to say, proponents of that rationale are explicitly claiming that death is the proportionate and minimally effective punishment for certain acts of wrongdoing. So it seems like a MIP-based objection cannot get off the ground. But this is to take the retributive rationale at face value, which is not advisable. Provided that proportionality is not simply understood in terms of commensurateness (as in the classic eye-for-an-eye sense), it is quite possible that alternative forms of punishment, which fall short of killing the wrongdoer, are proportionate responses to their wrongdoing. The argument is that this not merely a possibility but a likelihood. Thus, once again, the rationale clashes with the MIP.

The second problem with both rationales is that they clash with another basic principle of morality, namely, the Humane Treatment Principle (HTP — note, unlike the MIP, this name is of my own invention):

HTP: A policy or practice is permissible only if it does not result in the inhumane treatment of persons.

For sake of argument, we shall assume here that the death penalty can be carried out in a reasonably humane manner. We are concerned instead with particularly egregious and depraved types of punishment. For instance, if, instead of imprisoning people in a reasonably hospitable environment, our punitive policy called for their repeated torture and mutilation, that would be inhumane. It would be problematic not only because of the effects on the victims of such torture and mutilation, but also because of its effects on the perpetrators. It would create conditions in which sadistic pleasure and desensitisation to violence could thrive. Neither of which are things we ought to encourage in society.

The claim then is that both the deterrence and retributive rationales clash with the HTP. The deterrence rationale clashes with it because, if deterrence is the goal, it is plausibly the case that inhumane punishments have a greater deterrent effect than mere death. Thus, the deterrence rationale seems to justify punishments that are more inhumane than death. Similarly, the retributive rationale, particularly if its proportionality constraint is understood in terms of commensurateness, might justify inhumane punishments. For example, suppose someone has themselves spent their lives raping and torturing women. What is the commensurate punishment? Should we as a society see to it that they are raped and tortured too? The answers seems to be "yes". So, as with the deterrence rationale, the retributive rationale places no upper limit on the kinds of horrors that could be meted out in the name of punishment.

Now, to be clear, my discussion of the deterrence and retributive rationales does not map perfectly to what Kramer has to say. He is much more careful in his analysis. Still, the gist of the criticisms is there and this gist does something interesting: It sets up test for a successful justification of the death penalty.

As Kramer sees it, such a justification will have to: (a) satisfy the MIP, i.e. show that death is the minimally effective means for securing some morally acceptable end; and (b) satisfy the HTP, i.e. show that nothing more inhumane than death is justified. In other words, the justification will have to show that death alone — nothing more, nothing less — is the only means for achieving some morally acceptable end.

That is a fairly stringent test for a successful justification and it will be worth bearing in mind when we  evaluate Kramer’s basic argument for the purgative rationale.


2. Paradigmatic Instances of Defiling Evil
As noted above, the purgative rationale claims that the death penalty is justified because it is necessary in order to purge those who have engaged in defiling evil from a community. The full argument for this claim will be explored in part two. For now, I want to focus on Kramer’s notion of “defiling evil” and the wrong it does to a community. To do this, I want to outline the two paradigmatic instances of defiling evil uses to motivate his argument.

The Biblical and religious view of purgation point to the notion that some people damage the relationship that a community has with their god or gods. Thus, in order to restore this relationship those people need to be purged from the community. Kramer has no truck with these religious notions, but he thinks there is something to the notion of purgation that can be preserved in a secular worldview. That something is the community’s relationship with an underlying (non-theistic) moral order.

Kramer’s claim then is that some people within a community can damage the community’s relationship to that moral order. Two examples he uses are called Richard’s Case and Joseph’s Case. The first is based closely on the real life case of Richard Ramirez, a serial killer who went on killing spree in the mid-1980s in California. The second is inspired by a combination of the real-life cases of Josef Fritzl and Josef Mengele. In basing his motivating cases on real-life ones, Kramer is doing something important. His goal is to show that the death penalty is justified in plausible real world cases, not just in some hypothetical world constructed by philosophers.

Richard’s case tells the story of a man who engages in a series of grisly murders over a period of several months. He frequently binds his victims (who are all women), then rapes, tortures and mutilates them. He derives intense sadistic pleasure from the rape, torture and murder, and he occasionally consumes portions of the remains of his victims. Josef’s case involves a man who does not perpetrate any murders. Instead, he kidnaps young girls, and imprisons them in a network of rooms beneath his house. Once there, he binds them to a wall, amputates their hands and legs (without using anaethesia) and carries out a series of pseudoscientific experiments on their bodies. He also occasionally visits them for sessions of rape and torture.

I’m sure we can agree that the acts carried out by Richard and Josef, as described, are morally noxious. They are, following definitions not explored in this post but nevertheless used by Kramer, instances of defiling evil. We can also, presumably, agree that the communities in which Richard and Josef live have been degraded and besmirched by what they have done. What then follows? For Kramer the answer is straightforward: Richard and Josef must — after a fair trial — be put to death. This is the only way to restore moral order to the community.

I’ll consider the actual argument for that conclusion in more detail in part two.

Solum on the Normative Arguments for Originalism (Part Two)

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(Part One)

This is the second part in a brief series of posts looking at Lawrence Solum’s normative arguments for originalism. Originalism is a theory of constitutional interpretation which holds that a written constitution (could be any, but the US constitution usually) ought to be interpreted in accordance with the semantic content that its clauses had at the time of ratification. Roughly speaking, there are two ways in which to cash out what that semantic content is: (i) intentionalism, which holds that the content is fixed by the intentions of the framers; and (ii) conventionalism, which holds that the content is fixed by the public meaning of the clauses at the time of ratification.

In an earlier post, I outlined some of Solum’s arguments in favour conventionalism. In this two-part series, I’m changing tack and looking at Solum’s normative arguments in favour of originalism. The arguments are taken from the book Constitutional Originalism. These normative arguments play a crucial role in the debate over originalism. After all, even if Solum and other originalists are correct in saying that the semantic content of the constitution really is fixed at the time of ratification, it does not follow that judges and other officials ought to respect it. There may be moral reasons for overruling or occasionally disregarding it; for changing and amending it; or for tearing it up and drafting a new one.

In part one, we looked at one normative argument in favour of originalism: the argument from popular sovereignty. As we saw, there are a number of problems with this argument, at least in the form adopted by Solum. Today we’ll look at another argument, one that happens to feature quite prominently in the debate about originalism: the rule of law argument. According to this argument, originalism can be endorsed thanks to the positive role it plays in promoting the rule of law. To flesh out this argument, we’ll first need to consider the virtues of the rule of law. Then, we’ll need to explain how originalism contributes to it. Finally, we’ll need address the criticisms of the rule of law argument.

Let’s get to it.


1. The Rule of Law and its Virtues
It’s almost a cliche to say this, but here goes: the rule of law is a somewhat elusive concept. The basic idea is readily stated: people should be governed by laws, not by arbitrary exercises of power. To put it another way, and to quote from John Adams, there should be a “government of laws, not of men”. That’s not to say there won’t be men (and, of course, women) doing the governing, it’s that they will not be above the law. They, like everyone else, will be subject to it and accountable under it.

That much is straightforward. The devil is in the details. That is, in precise mechanisms through which this preferred state of governance is to be realised. Some complain that the “rule of law” is an empty piece of rhetoric, a placeholder for all the positive aspects of a political system. But this isn’t entirely fair. There is some reasonable guidance out there. For instance, the American legal philosopher Lon Fuller famously identified eight features of good law-making. Among these features were publicity, prospectivity, certainty, and consistency. These contributed, in his words, to the “inner morality of the law”, which is presumably what the rule of law consists in. More recently, the English jurist, Lord Justice Bingham, identified another set of eight principles — among them, again, accessibility and predictability, but also lack of discretion, equality and basic humans rights protection — which he felt constituted the rule of law. Fuller and Bingham seem, by my lights, to be on the right track.

Ignoring the mechanisms for the moment, let’s turn to the moral question: why should we prefer the rule of law? On the face of it, there doesn’t appear to be any necessary connection between the rule of law and the morally preferred state of existence. It is surely possible for there to be a benevolent dictatorship or a wicked set of accessible, predictable and consistent laws? Maybe; maybe not. There are some who argue that the kinds of principles identified by Fuller and Bingham have intrinsic value, a value that dictatorial or arbitrary system of governance will obviously lack, but there are also those who will argue that the rule of law has instrumental value, either because it does (or is more likely to) lead to better kinds of outcome.

I can’t say exactly where I come out on all of this. I certainly think a “government of laws” is a better bet than “government of men” (going by my cursory sweep over the historical evidence). But I’m not sure why or what its precise constituents might be. Fortunately, I need neither of these things right now. For the purposes of this post, I will simply assume that the rule of law is morally desirable and that predictability, certainty, prospectivity and avoidance of discretion are part of the picture. Solum, I should add, seems to agree.


2. The Rule of Law Argument: What’s Originalism got to do with it?
With this theoretical background in place, the rule of law argument can be developed. The essence of the argument is twofold: (i) that an originalist method of interpretation can contribute to the rule of law; and (ii) that it does so better than other approaches to judicial decision-making. The first part of the argument is reasonable enough, but the second part is much trickier and also crucial to its overall success.

Before we get too bogged down in the details, let’s try to formalise the basic argument (numbering follows on from part one):

• (7) We ought to protect and sustain the rule of law. 

• (8) Originalist interpretation of the constitution helps to protect and sustain the rule of law. 

• (9) No other theory of judicial decision-making does a better job of protecting and sustaining the rule of law. 

• (10) Therefore, we ought to adopt an originalist approach to the interpretation of the law.

Now let’s get bogged down in the details. By which, of course, I mean the defence of each of the key premises. We’ve already looked at premise (7), so we’ll leave it to the side and focus on (8) and (9) instead (don’t worry we’ll be getting back to (7) when we look at criticisms of the argument as a whole).

Premise (8) is defended by the appeal to the rule of law virtues of predictability, certainty and non-arbitrariness. As stated above, what distinguishes the rule of law from, say, the rule of force is that everyone is subject to and accountable under the law and that no one individual has the power to change those laws at a whim. For this to work, we have to make sure that the laws are sufficiently stable and well-understood so that people can order their lives in relation to them, and that they are sufficiently constraining so that no one can alter or undermine them with ease. Solum, along with other originalists, argues that this is only possible when the laws have a stable core of fixed meaning. And, further, that this is only possible if we adopt an originalist approach to interpretation.

The argument being made here is an argument from constraint, which is probably the most popular and common way to defend originalism. The claim is that the originalist approach constrains judicial (and presumably other official) interpretations and applications of law within the — sometimes fuzzy — boundaries of original meaning. We state the argument thusly:

(11) If an approach to judicial decision-making provides predictability, certainty and non-arbitrariness, then it protects and sustains the rule of law. (12) Originalist interpretation of the constitution provides predictability, certainty and non-arbitrariness (by constraining judges and officials within the boundaries of a fixed original meaning). (8) Therefore, originalist interpretation of the constitution helps to protect and sustain the rule of law.

We shan’t say anything critical about this argument at this juncture. We’ll postpone that ’til the next section. We move on instead to the defence of premise (9). As I said, this is crucial to the overall argument: it’s not good enough to say that originalism protects the rule of law, it must be shown that it does a better job of this than alternative theories of judicial decision-making. Can an argument be made to that effect?

If we stick with the virtues of predictability and certainty, then it can. Consider the usual alternatives to originalism — living constitutionalism, judicial pragmatism, common law constitutionalism and so forth. Each of these theories distinguishes itself partly on the grounds that it provides greater flexibility to judges, that it frees them from the “dead hand of the past”. Indeed, as Solum notes, advocates of such theories are often keen to defend them precisely these grounds. But these grounds imply a lack of predictability and certainty in judicial decision-making. That would give us the following argument:

• (13) If an approach to judicial decision-making allows for some flexibility and discretion, it implies that such decisions will (potentially) lack predictability and certainty (which are needed in order to sustain the rule of law). 

• (14) Leading alternatives to originalism (living constitutionalism etc.) allow for greater flexibility and discretion than originalism. 

• (15) Therefore, leading alternatives to originalism will create a greater potential for unpredictability and uncertainty than originalism (which is damaging to the rule of law).

As can be seen, this argument isn’t yet a defence of premise (9). There are a couple of reasons for this. The most important one for now is that the argument says nothing about the arbitrariness of the decisions under the alternatives to originalism. As you recall, “arbitrariness” was also part of the rule of law virtues that originalism was supposed to protect. Why doesn’t the argument say anything about this? The answer lies in the nature of an “arbitrary” decision. To my mind, non-arbitrariness doesn’t simply equate with predictability. If it did there would be no reason to include it as a separate component in the rule of law. Instead, non-arbitrariness suggests a decision that is grounded in sound moral principle, that is not simply an exercise in vindictiveness, whimsy or caprice.

And this is where the defenders of the alternatives to originalism may gain some ground. Presumably such advocates don’t defend their theories because they are lovers of unpredictability and uncertainty; presumably, they do so because they think there is something morally superior to them. In particular, they might be inclined to argue that affording judges greater flexibility in their decision-making allows them to make decisions that avoid the moral mistakes of the past and are more attuned to the moral needs of the present. But in that case the decisions would be guided by moral principle and would thus be non-arbitrary.

Originalists will need some sort of response to this. Have they got one? Solum makes a few gestures in the right direction (pg. 41) by claiming that once we grant judges the power to overrule/amend the constitution they will exert that power in a political and legal vacuum. In other words, they will stand above the law - free to change it as they see fit - a situation we sought to avoid by promoting the rule of law. And while that won’t necessarily lead to problems, it increases the changes that problems will arise. We can well imagine what might happen: with the power vacuum opened up, politicians will seek to appoint ideologically driven judges and there’s no reason why these judges would have to adhere to a morally commendable ideological cause. That is to say, if we allow for discretion, we create the conditions in which arbitrary decision-making can flourish, even if we don’t necessitate that outcome.

• (16) If judges are given the freedom to amend or overrule the constitution, this will create the conditions in which the arbitrary exercise of power can flourish (which would be contrary to the rule of law).

• (17) The leading alternatives to originalism would allow judges the freedom to amend or overrule the constitution; originalism would not, or, at least, would do so to a lesser degree. 

• (18) Therefore, leading alternatives originalism would be more likely create the conditions in which the arbitrary exercise of power can flourish.

When you combine (18) and (15) you get a defence of premise (9). The rule of law argument is then complete.

This is a rather complex argument, so it might behoove us to consolidate the chain of reasoning into an argument map.

3. Problems with the Rule of Law Argument
I held off on criticism in previous section. Now it’s time to correct for that omission. As I see it, there are two types of criticism one can make of the rule of law argument. The first focuses initially on premise (7), but then has downstream effects on premise (9). The second follows a similar pattern only it starts off with premise (8). I’ll briefly outline both types of criticism here. I will not have the time to develop them in any detail, but I’ll lay the foundations at least.

Let’s kick things off with premise (7). As you recall, in its original form it stated:

• (7) We ought to protect and sustain the rule of law.

But this version of the premise lacks a crucial qualification. While it may be true, in general, that we ought to protect and sustain the rule of law, that isn’t necessarily true in all cases, particularly if the rule of law is taken to require fidelity to the original meaning of the text. Why not? Because the original meaning could require the perpetuation of great injustices. To take an extreme (and hypothetical) example, a constitution that said women and racial minorities were “inhuman” and could be used as “slaves” or “experimental subjects” “without their consent” would be unjust, and there would be no strong reasons to swear fealty to it. While this is an extreme example, there are some who would argue that the US constitution permitted injustices of this sort in its original form (e.g. by failing to outlaw slavery). So we need to modify premise (7*):

• (7*) We ought to protect and sustain the rule of law, provided that the law is not unjust.

Modifying the premise in this manner creates a number of problems. One of these is that it opens up a chink through which the non-originalist theories — banished by premise (9) — can creep back in. Proponents of those theories will argue that if a constitution does contain an original injustice, there is good reason to adopt an alternative to originalism, and to allow judges (and other officials) to correct for that injustice. Of course, this line of attack won’t always work — it all depends on whether the constitution contains an original injustice — but it does highlight the fact that fidelity to the law is only justified if certain preconditions are met.

How might an originalist respond? They will typically suggest that there is an alternative and better solution to the problem of original injustice: amend the constitution by plebiscite, not judicial opinion. Solum puts it this way: if you were to select, from behind a veil of ignorance, a procedure for amending the constitution, would that procedure grant final authority to a small number of judges or to the people en masse? The question has some rhetorical force, no doubt. I should also note that amendment by popular vote is quite common in many countries (certainly in my home country) and works quite successfully. Ironically, this does not seem to be true in the US. Mainly this is because amendment is more difficult there, but it could partly (as some have argued) be because judicial activism has drawn attention away from that possibility.

We turn now to the second type of criticism. This one focuses its ire on premise (8) which, as you’ll recall, stated that originalism did help to protect and sustain the rule of law. The criticism suggests that it does no such thing. To appreciate the criticism we need to refresh our memories about the broader defence of premise (8) which was outlined above. This defence specified that the protection of the rule of law was achieved by constraining decision-makers within the boundaries of original meaning and thereby helping to promote predictability, certainty and non-arbitrariness.

But is that actually true? There are those who argue that the constraining powers of originalism are greatly exaggerated. That even if we do try to stick to the original meaning, there will be plenty of room for discretion and flexibility. The US Supreme Court decision in Heller is often thought to illustrate this: both sides focused on the historical meaning of the 2nd Amendment but both reached remarkably different conclusions.

There is much that could be said about this claim, and this example, but I want to sidestep all that and make a more general point. This point links directly into premise (9). I begin with this observation: even if originalism did contribute to predictability, certainty and non-arbitrariness, there doesn’t appear to be anything unique about originalism in terms of its power to do this. Judicial philosophies and ideologies will nearly always constrain judges in ways that make their rulings predictable and could thereby provide legal certainty. For example, Justice William O. Douglas was one of the more notorious “liberals” on the US Supreme Court in the mid-20th century. He famously purported to find rights hidden in the “emanations” and “penumbras” of constitutional clauses. But for all that, there was nothing very unpredictable about his decision-making: he followed a very clear and obvious ideology in his decision-making. One nearly always knew where he would come out on a controversial issue. This was true of other famous justices too, even when they didn’t follow an originalist approach.

The point is this: originalism doesn’t win the normative battle simply because it provides predictability and certainty. Most judicial theories and philosophies will do this. If originalism is to win, it will have to be on independent normative grounds. And as we saw the last day when investigating the argument from popular sovereignty, at least one of those independent grounds is not up to the job.


4. Conclusion
That brings us to the end of this series. As we saw in this post, one common defence of originalism holds that it both: (a) manages to protect and sustain the rule of law and (b) does so better than alternative theories of judicial decision-making. This is because it constrains judicial decision-making in such a way that promotes the rule of law virtues of predictability, certainty and non-arbitrariness. However, as we saw in the previous section, this defence of originalism is open to at least two criticisms. The first is that the rule of law ought only to be promoted if certain preconditions are met. The second is that the constraining powers of originalism — at least when contrasted with other approaches to judicial decision-making — are exaggerated.

Solum on the Normative Arguments for Originalism (Part One)

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(Solum On Semantic Originalism)

In an earlier post (link is above) I looked at the theory of constitutional meaning known as semantic originalism. This theory maintains that the semantic content of a constitution (presumably any constitution although the focus is on the US constitution) is fixed by the public meaning of its clauses at the time of ratification. This theory has been developed to its most sophisticated form by Lawrence Solum and in the earlier post I addressed some of Solum’s arguments in its favour.

Solum argues that the semantic thesis is a strictly factual one. That is to say, whether or not the semantic content of the constitution is fixed by the original public meaning of its clauses is something that can be discovered as a matter of fact. We do not choose the semantic content on the basis of normative/ethical criteria. The semantic content is what it is, it is not something else. We can’t simply change it.

But, of course, the debate doesn’t end there. Even if it is true that the semantic content is fixed in this manner, it does not follow that we ought to respect it. So originalists need to go further and try to present good reasons for respecting the original public meaning of the constitution. Over the next two posts I want to take a look at some of those reasons.

Once again, I shall call upon Solum’s discussion of originalism in the debate book Constitutional Originalism. I have noted before that this book doesn’t contain the most elaborate defence of Solum’s theory. For that, you need to go to his article/monograph “Semantic Originalism”. Nevertheless, when it comes to the normative arguments for originalism, the debate book may have an advantage over the article. To me, at any rate, it lays out the arguments in a crisper and more emphatic manner than the article does. Still, Solum is somewhat half-hearted in his discussion of the normative arguments in the article, since his primary focus there is on the semantic thesis. Better arguments can be found elsewhere, but this is at least a start.

In the remainder of this series I’ll look at two of the normative arguments Solum uses to defend originalism. They are the popular sovereignty argument and the rule of law argument. I’ll roughly follow the presentation in the book (pgs. 36-54), but will also feel free to elaborate on the arguments presented therein and to offer some critical commentary as I go along. Bear in mind throughout this series that the goal of each argument is to defend something like the following proposition: “we ought to interpret the constitution in accordance with its semantic content (which is fixed by the original public meaning of its clauses)”. This proposition is assumes that Solum’s semantic thesis is correct and that is an assumption we shall share throughout.

This post will focus on the popular sovereignty argument. The rule of law argument will be discussed in part two.


1. The Popular Sovereignty Argument
That the popular will should be respected seems like too obvious to state. To the extent that we are committed to democratic governance — and I shall assume such a commitment here — it would seem like the law ought to both respect and implement the popular will. Solum sums this up by reference to what we might call “Lincoln’s Principle”:

Lincoln’s Principle: Government should be of the people, by the people, for the people.

Now, that’s probably not the most philosophically sophisticated way of expressing the core principle of popular sovereignty, but it’s enough to get the gist of the idea. The key question now is how this can be used as the basis of an argument in favour of originalism. The simplest argument, and the one I think is implicit in Solum’s comments (pg. 42) is the following:

• (1) We ought to respect the will of the people. 

• (2) The constitution, through its semantic content, expresses the will of the people. 

• (3) Therefore, we ought to respect the semantic content of the constitution (which happens to be fixed by the original public meaning).

As I said this is pretty simple. Premise (1) just states the core principle of popular sovereignty. Premise (2) is slightly trickier. I think it is fair to say that people express their wills by appealing to the semantic content of conventional signs and symbols, but it’s not right to say a priori that a constitution expresses the will of the people. After all, it’s possible for a constitution to be drafted and ratified by a dictator. So premise (2) can only be true of particular constitutions drafted in a particular manner. The particular constitution that Solum focuses on is, of course, the U.S. constitution. And he thinks there are good historical reasons for thinking it really did express the will of the people when they ratified it (we’ll get back to those historical reasons in a moment).

But this point — that the constitution was an expression of the will of the people at the time of ratification — presents a problem for the defender of originalism. The problem is this: premise (1) and (2) are ambiguous as to which people’s will needs to be respected. I presumes that premise (1) is referring to the people who are currently alive and kicking; but then premise (2) — if assumed to be a statement about the U.S. constitution — is surely referring to people who live over two hundred years ago. If the ambiguous temporal references are removed such that we have the following premises:

• (1*) We ought to respect the current (2012-ish) will of the people. 

• (2*) The U.S. constitution, through its semantic content, expresses the will of the people circa 1789.

But if we have these two premises, then the conclusion (3) no longer follows. It is certainly possible that the will of the people living in 1789 is the same as the people living in 2012, but this cannot be taken for granted. In other words, if we want to respect the current will of the people, we would have take positive steps to ensure that this was happening each generation (e.g. by going through a new constitutional convention). We couldn’t just assume that nothing had changed. This suggests that legislation, which is enacted to popularly elected representatives, might be a better legal mechanism for respecting the will of the people than a constitution.


2. Shoring Up the Popular Sovereignty Argument
Solum has a response to this objection. It is, however, a little…odd. I’ll do my best to do justice to his reasoning here. For those who want to check up on me, the relevant passage of Constitutional Originalism is on pgs. 42-43.

Solum’s argument is that there is an important sense in which the constitution of 1789 is more representative of the popular than contemporary legislation. As he sees it, the problem is that legislation is enacted by popularly elected officials and, to quote from the man himself:

“In a representative democracy such as ours [i.e. the US], political institutions are (at best) an imperfect reflection of the true preferences of the citizenry. The majority of citizens do not vote. Those who do vote are frequently unaware of the likely consequences of their ballots. Special interests dominate ordinary politics through lobbying, campaign donations, and the weak institutional structures of many legislative and executive institutions. The political branches are truly political, but that does not imply that they are deeply democratic. (pg. 43)”

I have no reason to doubt this claim. Certainly, the popular representations of the U.S. political system (in news media primarily) seem to bear this out. But just because the current situation is no good does not imply that the original enactment of the constitution was any better. Solum needs to provide additional evidence for this. As it happens, he does not do this. Instead, he simply asserts that “[b]y contrast, the Constitution was adopted through an intensely democratic process.” To be fair to him, providing an exhaustive history of the drafting and ratification process would be inapposite in a book like this, and there are some historical considerations (possibly well-known to the book’s target audience) that bear him out. Chief among them being the supermajoritarian process of ratification. But there are also some historical considerations that contradict that point, e.g. the absence of women, African-Americans, and men who did not meet the property qualification, from the process,. Solum acknowledges these flaws, but thinks they do not outweigh the positive aspects of the process. My feeling is that they cannot be so easily dismissed. However, I’m going to take up that line of criticism in a later post on a different article. Stay tuned.

Leaving that to the side for now, I’m going to suggest that there are still some troubling tensions in Solum’s line of reasoning. But first, I’m going to try to formalise his argument. I think the following does some justice to the position:

• (5) Current legislative mechanisms for enforcing the popular will are imperfect: many people do not vote, those who do are unaware of the consequences of doing so, special interests dominate the legislative process and so on. 

• (6) The constitutional drafting and ratification process was, by contrast, intensely democratic and so the constitution is a better representation of the popular will: it was supermajoritarian, serious effort was made to allow people to participate in the process (despite notable absences) and so on. 

• (7) Therefore, the constitution is a better representation of the popular will than current legislation.

What to say about this argument? There are at least three significant flaws.

The first is that the argument doesn’t get the defender of originalism to where he/she needs to be. Remember, this counterargument is supposed to be helping them to defend the overall conclusion (3) that we ought to respect the original public meaning of the constitution. But this particular argument provides no support for that claim. The constitution may well be better at representing the popular will than legislation, but that does not imply that we ought to respect it. We could have good reasons for rejecting both legislation and the constitution. The least bad theory does not necessarily win out. For it to do that, we’d need to show that no other system for enacting the popular will is: (a) possible; and (b) capable of doing a better job.

The second flaw is that the argument does nothing to address the past vs. present problem highlighted earlier. All this argument really says response says is that the constitution did a better job of representing the popular will circa 1789 than legislation does circa 2012. But that doesn’t mean that the constitution does a better job of representing the popular will circa 2012. Again, additional argumentation would be needed to defend that conclusion.

The third flaw is that the argument seems to shoot itself in the foot. Solum is claiming that the current political system is imperfect in giving voice to the popular will. But surely the constitution itself must take a large portion of the blame for this? After all, one thing that the constitution does is to set up the political institutions that are currently failing us. (Speaking as a non-citizen and non-resident the use of the word “us” may be inappropriate but it just sounded nicer…) That’s not to say there aren’t other social and cultural pressures responsible for the current problems, but the fact that those pressures have the effect they do suggests, once more, that there might be a flaw in the original constitutional framework. Thus, to use the failures of the current legislative system to endorse the constitution seems self-defeating.


3. Conclusion: Looking Forward
That brings us to the end of part one. To sum up, in this part we have looked at one normative argument in favour of originalism: the popular sovereignty argument. That argument holds that because the semantic content of the constitution expresses the will of the people that semantic content ought to be respected. But this argument is problematic because the will of the people who drafted and ratified the constitutional framework is not necessarily the same as the will of the people who are currently subject to it. Thus, if popular will is the guiding consideration, current legislation would seem to have greater normative force than the constitution.

Solum tries to respond to this critique by offering some reasons for thinking that current legislation does a worse job of representing the popular will than the constitution did when it was drafted and ratified. But this argument has three significant flaws. It does nothing to support originalism since the least-bad system does not win by default. It does nothing to address the past vs. future problem raised by the critique. And it seems self-defeating since the constitution is partly to blame for the problems with the current system.

We’ll look at the rule of law argument the next day.

Addiction and Responsibility (Part Three)

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(Series Index)

(Part one, Part Two)

This is the third and final part of my series on addiction and responsibility. The series is working off the article “Lowering the Bar for Addicts” by Gideon Yaffe. In this article, Yaffe defends the following two theses:

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.

Part two covered Yaffe’s general defence of the unreasonable compliance thesis, but did not explain how it applied to addicts. In this part, we shall consider Yaffe’s general defence of the substitution thesis and then, at last, consider how both theses might apply to the addict.


1. The Hopeless Romantic and the Substitution Thesis
The substitution thesis claims that even if compliance with a norm requires the unreasonable ceding of autonomous control to another, there is often a lesser norm that it is reasonable to comply with. But what exactly does this mean? How could there be a lesser norm? And what makes compliance with it reasonable?

Yaffe uses a thought experiment to explain the situation. Imagine a man — call him the “Hopeless Romantic” — who is constitutionally incapable of learning from his past romantic failures. No matter how many tragic, ill-conceived and acrimonious relationships he goes through, he continues to find himself drawn to unsuitable partners. This is because he has some sort of learning deficit. He learns more slowly and requires much more extreme signals in order to properly recognise the reasons for and against pursuing particular kinds of relationship.

What is this man to do if he is to avoid future disappointment? Well, one thing he could do is cede all relationship-related decision-making authority to a third party. For example, he could get one of his friends to choose his future romantic partners, or he could sign-up to a service that arranges marriages. But, as discussed in part two, it would be unreasonable to expect him to do so because this would require the renunciation of autonomous control (in this particular domain).

So what can we expect him to do? Here, Yaffe distinguishes between two norms that we could apply to our hopeless romantic:

Avoid zealous pursuit: This first norm counsels our hopeless romantic to avoid the zealous pursuit of particular romantic partners. 

Avoid weak pursuit: This second norm counsels our hopeless romantic to avoid all kinds of pursuit of particular romantic partner.

Obviously, the second of these norms is more stringent than the first. It demands that all forms of pursuit be avoided; the first simply counsels against the zealous forms of pursuit.
Yaffe’s argument is this: while it may be unreasonable to expect the Hopeless Romantic to comply with the norm of weak pursuit, it is not necessarily unreasonable to expect him to comply with the norm against zealous pursuit. This is because our romantic is not incapable of recognising reasons for and against pursuit, it’s just that he is less sensitive and takes longer to recognise them. Due to his past experience he knows that his romantic adventures tend to end in failure, and so he recognises reasons for being cautious and less “full-on” in his advances, but he can’t recognise reasons for avoiding pursuit altogether.

Much turns on the particulars of the individual case. Whether it is reasonable to expect compliance with the lesser norm will depend on the extent of the learning deficit and on what the individual has actually learned. If our hopeless romantic was completely insensitive to all reasons for and against pursuing particular romantic partners, then compliance with the lesser norm might be unreasonable too. Nevertheless, Yaffe thinks the lessons from this thought experiment are generalisable:

General Substitution Thesis: If a person suffers from a learning deficit which impedes or reduces their ability to recognise and respond to reasons for and against an act of type X, then it may be unreasonable to expect them to avoid performing all acts of type X, but it may be reasonable to expect them to avoid certain tokens of X.

Yaffe doesn’t formulate the thesis in this way, but I think this version, with its reference to the type/token distinction, captures what he is saying.


2. Addiction, Unreasonability and Substitution
So we come at last to the central topic of the paper: are addicts responsible for failing to comply with norms? The theoretical spadework has been done, and consequently this question becomes much easier to answer. What we need to know is: (i) whether addicts suffer from some learning deficit — similar to that of the hopeless romantic — which makes it unreasonable for us to expect them to comply with certain norms, and (ii) if this is true, whether there are nevertheless lesser norms which they can be held responsible for breaching.

With regard to the first of these matters, Yaffe is crystal clear: addicts do suffer from such a learning deficit. His argument can be set out in the following manner:

(1) If a person suffers from a learning deficit which impedes or reduces their ability to recognise and respond to reasons for and against some actions, then it is unreasonable to expect them to avoid such actions (because they would have to cede autonomy). (2) The dopamine signal is what allows people to attach values to outcomes and thereby recognise and respond to reasons for and against actions. (3) The dopamine signal is impaired in addicts in a such a way that their ability to recognise and respond to reasons for and against certain actions is impeded. (4) Therefore, it is unreasonable to expect addicts to avoid certain actions.

The argument for premise (1) has been laid out over the past two posts. I’ve expressed my doubts about it already but I will leave those to the side for now. The focus shall be on premises (2) and (3) respectively. One problem with these premises should be flagged at the outset. It is that Yaffe’s defence of both relies on the results of several neuroscientific studies and I have not evaluated those studies. What he says about the dopamine system sounds about right given my previous readings on it, but I’m afraid I’m his stuff on the effect of addiction on the dopamine system is unknown to me. I’ll simply assume he is fairly representing the evidence.

So let’s look at premise (2) more closely. As Yaffe notes, studies on the dopamine signal suggest that its function is to represent the value that a subject attaches to the difference between the value they associated with a particular outcome and the value they expected that outcome to have. Most such studies have been done on monkeys. If a monkey is shown a sign, and then a few moments later is given a reward, their dopamine signal goes up after receiving the reward. If this process is repeated, the monkey will learn to associate the sign with the reward. At this stage, the dopamine signal will goes up once the monkey perceives the sign, but will remain flat after the reward is received. What’s more, if the sign is perceived, but no reward is given, the dopamine signal will actually go down when the monkey realises no reward will be given. Thus, it does indeed appear to be true that the dopamine signal represents the difference between the value associated with an outcome and the expected value of that outcome.

The question is: why does such a mechanism exist in the brain? The answer, according to Yaffe, is that it exists to allow an organism to attach values to particular acts and outcomes in light of experience. In other words, the dopamine signal is what allows the organism to update the algorithm it uses to weigh the reasons for and against engaging in particular kinds of conduct. The key here is the notion of “updating”. Without that capacity for updating, organisms would be unable to recognise and respond to reasons for action. Thus, if the dopamine signal is indeed integral to this capacity, premise (2) would appear to be true.

This brings us nicely on to premise (3). Is it true that the dopamine signal is impaired in addicts? The answer appears to be “yes”. This is chiefly because many drugs work to artificially increase the dopamine signal, independently of the experienced and expected value of using those drugs. Cocaine is the classic example and the case of the cocaine user can be contrasted directly with that of the monkeys used in the studies on the dopamine system.

As I just mentioned, the monkey, when repeatedly presented with a sign followed by a reward, learns to associate that sign with the value of the reward. This results in their dopamine signal altering from one that it is initially raised by the receipt of the reward to one that remains flat after the receipt of the reward. The flattening of the dopamine signal being indicative of the fact that the monkey has learned what value to attach to that outcome, as well as the expected value of the events that precede that outcome. Contrast this with the experience of the cocaine user. Cocaine works by giving the brain an artificial dopamine boost. If a person repeatedly uses cocaine, they should learn to associate certain kinds of behaviour (drug-use related behaviour) with a pleasant outcome. And this should lead, over time, to the flattening of the dopamine signal arising after that outcome. This would indicate that normal evaluative-learning has taken place. But the effects of the drug prevent this from happening. Instead, when the user takes cocaine they get a higher dopamine signal than the one they expected. Their ability to recognise and respond to the reasons for and against drug use behaviour is impaired as a result.

Yaffe is keen to point out that this doesn’t just apply to cocaine users nor just to drug use behaviours. Studies have found that the impairment in the dopamine signal among addicts applies to thier non-drug-using behaviours too. Thus, it appears that premise (3) is true. And if this is so the argument outlined above would appear to be correct.

But that’s only the first piece of the puzzle — the unreasonable compliance thesis — what about the second one. Is it true that there is usually a lesser norm that the addict could be expected to follow? On this matter, Yaffe is rather more circumspect. He mentions the possibility of zealous/weak dichotomy in drug pursuing behaviours, which would make the case of the drug user and the hopeless romantic analogous. For example, a drug user could pursue drugs zealously, by killing and maiming in order to secure the drugs, or more weakly, by stealing money from friends and family. We could expect him to avoid the former but not necessarily the latter.

But this is just a possibility and the link between those kinds of cases, and the kinds of cases that might arise in the criminal law are sketchy. Yaffe acknowledges this deficiency. His general position is that addicts can be held responsible for whatever it is they can do without being forced to give up autonomy. But it is unclear what that would be in particular cases. More research needs to be done on the actual effects of drug use on specific kinds of learning.

Okay, we shall leave it there for now. I would recommend checking out some of Yaffe’s other work on addiction and responsibility. They can be found on his homepage.