A jury’s role is to decide whether the law was broken, not whether a law is sensible

Via DK, I come to hear of this story.  Short version: Man finds gun in back garden, takes it to police station and is promptly arrested for possession of an illegal weapon.  He is later convicted and sentenced to a minimum of 5 years.

Obviously, if Paul Clarke’s story is accurate, this is ridiculous and shows that possession of a firearm should not be a strict liability offence.  That’s pretty uncontroversial in light of this case, I’d think.

But DK claims that the jury behaved improperly:

This is, of course, utterly irrelevant: the jury, had they had any balls whatsoever, should have returned a “not guilty” verdict—and they would have been perfectly within their rights to do so. They chose not to.

I contend that the jury was right to return a guilty verdict.  What is the role of a jury?  To decide whether the accused has broken the law.  Not to decide whether the accused acted immorally, or whether the accused is well-intentioned, or whether the accused is a nice person.  Whether the accused has broken the law.  Yes, the law in question may be stupid.  But beyond reasonable doubt, Clarke broke the law and possessed an illegal weapon (albeit for a very short time).

Judge Christopher Critchlow, presiding, said:

This is an unusual case, but in law there is no dispute that Mr Clarke has no defence to this charge

So yes, Clarke broke the law.

An analogy.  I think it’s ridiculous that you will be punished if caught with drugs on you (even hard drugs like cocaine).  Suppose Joe Bloggs is caught with cocaine on him, and I’m serving on the jury that is assessing the case.  Because I think laws prohibiting cocaine possession are ridiculous, should I return a not guilty verdict (assuming the evidence is damning that he did in fact possess cocaine)?  No.  That Bloggs broke the law, and that the law in question is stupid, are perfectly compatible.

As such, I disagree with DK.  The jury were not craven.  They acted properly.  It is the legislators that should be attacked, not the jury.  It was the legislators, not the jury that made the possession of a firearm a strict liability offence.  It is they who are responsible for this stupid law, not the jury.

EDIT: On second thoughts, it’s not even obvious that the law was stupid in this case.  See TCF and LibCon, for example.

It could be worse …

Via philosopher Jean Kazez (Southern Methodist University, Dallas) I learn that lots of parents are apparently upset that President Obama plans to speak to schoolchildren and urge them to stay in school and work hard.  Evil indeed!

No matter how depressed I get at the frankly pathetic state of political discourse in the UK, I can at least be thankful that incidents as stupid as this are confined to the other side of the Atlantic.

Life is unfair, but it needn’t be so

Shane Greer is right that life isn’t fair. But that’s virtually the only thing he gets right in this particular post (which I found via Iain Dale).

Two bits in particular get my goat.  Firstly, Greer writes:

Bringing to bear the kind of insight we’ve come to expect from Gordon Brown’s Labour Party, the report explains that:

“You are less likely to be able to do an internship if you lack the means to work for free.”

Really!? Wow, thanks Alan, you’ve really opened our eyes on this one.

Greer is right that the current system of internships is unfair, and yes, he’s right that it’s obviously unfair (for more on the unfairness of internships, see this post at Bad Conscience).  But Tories typically claim to be in favour of equality of opportunity – can you imagine a prominent Conservative on Question Time saying “I don’t believe in equality of opportunity”?  Of course not!  But cases such as these (along with private schools and many other obvious examples) show conclusively that there isn’t equality of opportunity in the UK, and comment like Greer’s shows that he opposes attempts to take us closer to that ideal.  And secondly:

Much though people on the Left like Milburn would like to give the world (and by world I mean poor people) a great big hug, tell them everything will be ok, and promise they’ll fix it for them, the truth is everything won’t be ok and they can’t fix it.  Life’s tough, and it isn’t fair.

Greer sneers.  Maybe it’s true that things will never be perfectly fair.  But it’s obvious (indeed, as equally as obvious as the fact that life is unfair!) that the State can take action to make life fairer.  For example, the State can tax progressively, redistributing income from those who often only have (at least some of) their high income due to morally arbitrary factors (such as popping out the womb of someone who’s rich enough to send you to a private school, or rich enough to support you whilst you do unpaid internships) to those who have not been so fortunate, and consequently enjoy diminished life chances.

Greer goes on to tell the standard right-wing “I worked hard despite my poor background, and look at me now” parables, as if a single instance shows that those from poor backgrounds are on an equal footing with those from richer backgrounds, or that the disparity in life chances doesn’t matter.

Greer offers no real reasons for thinking that the State should not (in at least some circumstances) try and correct for fairness.  The only thing he’s right about is that life is unfair.  Sadly, life is so unfair partly due to people like Shane Greer holding the attitudes he does.

Libertarians and Healthcare provision

Over at the LPUK blog, Guthrum (who I think is LPUK Head of Policy, though I’m not 100% on that LPUK Party Chairman) writes that:

One of the greatest problems that a Libertarian has is trying to convey the message that Libertarians would not close all of the hospitals in the country, and the dead, dying and ill would be lying in hedgerows and/or the work house.

But the argument that follows does nothing to deflect that criticism. Now, it may well not be LPUK policy to stop funding hospitals etc, but I think that a reasonable reading of libertarian political philosophy would mean that at least some dead, dieing and ill would be denied treatment. I take it that Guthrum is arguing (or trying to argue) that libertarianism as an ideology need not lead to the bad situation he outlines, not that he’s making a point merely about LPUK party policy (or else all he’d have to do is link to a policy document).

Anyway, libertarians believe that any State significantly larger than Nozick’s minimal State is unjust. The State should provide police, military, courts, enforce contracts and so forth, and nothing else. Or rather, the State is not justified in using coercive taxation to fund anything else it wants to do. Now, hospitals pretty clearly come in the “anything else” bracket, so the libertarian line ought to be that that hospitals cannot be funded out of coercive taxation. Any funding of hospitals must be on a purely voluntary basis.

In this hypothetical libertarian world, it is plausible that at least some people would lack health insurance. Perhaps they do not have enough money for it, and perhaps their employer won’t provide it because they are unskilled, and hence easily replaceable. I don’t think that that’s an implausible picture – there are plenty of unskilled, easily replaceable workers in this non-libertarian world!

Well, these people would be beholden on private charity. Medical treatment costs money, and if it’s not going to come from the State, it’s got to come from private individuals (of course, the money the State raises in taxes was once the property* of private individuals – I do not intend to gloss over than fact). If there’s no private charity in your area, you won’t get treatment if you lack insurance etc. If there’s insufficient private charity, hospitals will have to close.

Guthrum’s argument against the view that libertarians would close all of the hospitals in the country, and the dead, dying and ill would be lying in hedgerows and/or the work house is along the lines of “well, the NHS is crap anyway”. Maybe so. But that isn’t an argument for either:

a) libertarian ideology would not lead to some poor people etc not getting medical treatment, when they would under the NHS

b) libertarian ideology would lead to some poor people etc not getting medical treatment, when they would under the NHS, but that doesn’t matter (perhaps for reasons of justice). This is what I think Nozick would say.

But Guthrum’s argument doesn’t get him to either (a) or (b) and it is those that he needs. Guthrum is thus right to suggest that:

One of the greatest problems that a Libertarian has is trying to convey the message that Libertarians would not close all of the hospitals in the country, and the dead, dying and ill would be lying in hedgerows and/or the work house.

It is a great problem, because libertarians don’t have an ethically palatable answer to that problem, and it’s right that non-libertarians find the libertarian position distasteful at best.

—

* I use “property” in a non-moralised sense – I do not imply, nor do I believe, that it is wrong for the State to tax redistributively.

EU Profiler

This is a neat little tool.  It functions a lot like the political compass, but with regards the parties in the upcoming EU elections.  You can see which UK parties, which German parties (and so forth) you match up closest with.

Unsurprisingly, I come up quite far to the socioeconomic left (just to the right of the Greens) and slightly pro-EU integration.  Apparently, this makes for a 73% match with the Greens, 66% with the Lib Dems, 57.5% Labour, 52% Tory, 49% BNP, 34% UKIP.

Sounds about right.  I’ll probably be voting Green, despite being a Labour member.

(via: Norm)

Prepunishment as an argument against Compatibilism

Compatibilism is the position that states that free-will is compatible with determinism. Incompatibilism is the position that states that free-will requires indeterminism. It is hard to give an argument for either compatibilism or incompatibilism that does not beg the question. A good argument for incompatibilism would be to show that the compatibilist is committed to a particular idea that cannot be made sense of within a compatibilist framework. This is what (I think) Saul Smilansky tries to do in his paper “Determinism and Prepunishment: The Radical Nature of Compatibilism”, which you can find and read on this page:

http://philo.haifa.ac.il/faculty_pages/smilansky/determinism.pdf

It’s only 3 pages, and like all Analysis articles is wonderfully clear. No excuse for posting in this thread if you haven’t read it. “Prepunishment” refers to punishing someone prior to their committing a particular action. This is what I take to be Smilansky’s argument:

1. If compatibilism is true, we can have no moral objection to prepunishment

2. We have a moral objection to prepunishment, and we don’t want a theory of free-will that does violence to that intuition

3. Therefore, compatibilism is false

That argument looks valid to me. The premises also seem true to me.

In defence of P1, which I take to be the controversial premise, Smilansky says this:

But what if there is only the sort of free will that is compatible with determinism? Given determinism and complete predictability, compatibilism seems to lack any principled way of resisting the temptation of prepunishment. The mere temporal matter, that in prepunishment there is still no crime, and no one is yet deserving and blameworthy, does not seem to go very deep. Compatibilism allows that (a) a person’s committing of a crime is completely determined, and yet (b) he commits it out of his own free will, hence he is morally responsible for it, and liable to blame and punishment. If we perfectly know now that it is completely determined that a person will commit a crime in (say) a week, out of his own (compatibilist) free will, the compatibilist does not have a strong principled objection to prepunishing this person now, before he has actually committed the crime. The common-sense objection, that we must allow him to change his mind, does not apply here; for according to compatibilism it is already determined that he will not change his mind. Thus, there seems to be no point, from a compatibilist perspective, for waiting.

I think that this is potentially a very good argument, because the compatibilist typically thinks that if determinism is true, it does not affect our moral practise in any significant way. Indeed, some compatibilists (I’m thinking especially of Hume here) seem to say that our ordinary moral practise is dependent upon compatibilism being true.

What do you think?

(as for my own view, I used to be an extremely staunch compatibilist.  Now, not just because of Smilansky’s paper, I am not so sure)

Sporting preferences and aptitude for the Presidency

You’d think that there was no connection between one’s sporting preferences and whether you’d make a good President or not.  But Miami philosopher Colin McGinn reckons otherwise.   He claims that because George W. Bush liked jogging and mountain biking “loner sports” whereas Obama likes basketball, we can infer all sorts of things about Bush’s “capacity for hardwork … confidence” and we can apparently see that he lacks “dedication”.

When I first read McGinn’s post yesterday, I thought he was taking the mick.  I mean … Obama’s a better President because he likes basketball?  It’s just seems crazy – like saying that Obama’s a better President because he likes apple crumble.  It just seems an irrelevent factor.  I mean … take the best Prime Minister’s of the last century.  From an ideologically neutral perspective (success would be measured by re-electability, success in implenting a fairly broad agenda etc), I think that’d be Asquith, Lloyd George, Attlee, Thatcher and maybe Blair.  Did they like team sports like football or rugby?  No idea.  Nor does anyone seriously interested in political analysis care.  In fact, the only PM whose sporting preferences I know is Major (who loved cricket), and he was a terrible PM!  Of course, that an idea seems crazy doesn’t mean it’s false.  But McGinn’s argument isn’t helped by manifestly ridiculous claims such that mountain biking requires no skill (if this is true, but McGinn on a mountain bike and see if he can do it anywhere near as safely or quickly as someone who’s been doing this for years).

Most interesting to me is McGinn’s claim that we can infer from his sporting preferences that Bush lacks dedication.  The basis for this seems to be that he doesn’t like team sports.  But so what?  This doesn’t mean he lacks dedication.  Bush likes jogging apparently, and it’s perfectly possible to show lots of dedication to jogging.  Becoming a half decent distance runner (I don’t know whether Bush is a decent distant runner or not) takes time and training.  People who take jogging seriously would just find McGinn’s assertion silly, and perhaps a bit offensive.

I’m not involved in any team sports (and never really have been – I used to play doubles badminton but I always preferred singles), but it’s still possible to show dedication in sports/fitness activities that aren’t team based.  In running, you can improve one’s fitness in measurable ways – being able to run a greater distance, or being able to run a distance over a shorter time – that sort of thing.  If a person enjoys working towards those sorts of goals who the hell is McGinn to say that they lack dedication.  Or take the sports I most like to watch, powerlifting (for an idea of what powerlifting involves, see these videos 1, 2, 3 and strongman).  They’re not team sports.  But they involve measurable goals and certainly take dedication and hard work to compete in.  But I don’t think they’re any more worthy sports than those Bush likes – they’re just that, my preferences.  Nothing normative follows from that.  It’s odd that McGinn can’t see that, and it’s sad that he’d knock sports like distance running, mountain biking (and presumably powerlifting).

Wow! A substantial post!

I was having a nice little discussion with a libertarian recently, and he made this point.

How’s this for a reductio – imagine Smith is on a plane with 100 disabled people, and the plane crashes on an island. As the only able-bodied survivor, he is the only one who can gather food. Now, if you believe in a right to food (or basic provision, or whatever) it seems as though you’re saying that he has the legally enforcible obligation to provide for all of these people, despite the fact that doing so would mean working 12 hour days, having no leisure time, having all the fruits of his labour taken from him etc. One of the disabled people has a gun, and so can force him to do this. The question is, what is the qualitative difference between Smith’s situation and the situation of a slave?

It seems that you have two options: firstly, to say that he is not a slave, because he is morally obligated to carry out this task. But to say that would be to moralize the definition of slavery (and from discussions with you before, I know you’re not a fan of moralized concepts.) It also has this weird consequence: one day, we could both agree that Jones is a bona fide slave, being forced by an (able bodied) master to labour against his will. The next day, if that master sold Jones to a bunch of disabled people, who had no other way of getting their basic food-needs, and who forced him to labour in exactly the same way, you’d have to say that over-night he became free, or, at least, not enslaved any more. The other option is to say that there’s nothing wrong with slavery per se, but this is clearly quite a bullet to bite.

How should egalitarians respond to such points? As someone who really, really likes Rawls, my initial thoughts were along these lines (these aren’t in order of importance, more the order I thought of them):

1. Smith can’t be FORCED to work 12 hour days. The disabled guy with the gun (let’s call him Black) can’t say “work 12 hour days, or I’ll shoot you”. That’d be wrong, and in clear violation of the 1st Principle of Justice. So Smith will never be forced to labour against his will. At most, he’ll be forced to give up some of the product of his labour. They’re not the same thing. So he ain’t a slave.

2. I’m pretty sure that if Smith was literally the only one who can gather food and there are 100 disabled folks, then we wouldn’t be in what Rawls calls the circumstances of justice. Roughly, we’re in the circumstances of justice if there’s enough food (though Rawls is interested in social primary goods, which include more than just food) for everyone in our political community to survive. I submit that with only one labourer, the political community wouldn’t be in that situation, and hence the Principles of Justice don’t apply (this is not to say that no principles of justice apply, such as one’s that Rawls hasn’t considered, but the Difference Principle certainly doesn’t apply).

3. Let’s suppose that we are in the circumstances of justice. If that is stipulated, then I think what is distasteful about Smith’s predicament disappears. His situation seems bad because we think “oh, Smith is doing all this work, and he’s still got bugger all … he’s still starving because he has to give all the coconuts he harvests to these damn disabled people”. If we’re in the circumstances of justice, that’s not the case, and he’s perfectly alive (if not as well of as he might be under a different Basic Structure). In that situation, I don’t think Smith can really complain about being treated unjustly. What’s he meant to do? Let his disabled plane-buddies die? Is that the just thing to do? Surely not.

4. Justice as Fairness isn’t supposed to capture the disabled. Rawls restricts his enquiry to what we owe to able-bodied citizens. Yes, that’s a limitation, but there’s nothing to say that the disabled can’t be captured by a different account (eg. a Dworkinian hypothetical insurance market, though of course, any supplementary account needs to be argued for).

Any other fruitful responses? They don’t need to be specifically Rawlsian.

EDIT: Obviously, the libertarian in question knows that I’ve reproduced his comments.

New Blog

Cambridge philosophy postgrad James, who used to blog sporadically at Jotunheim, has a new blog here.  It’s well worth a look.

http://towardsafifthestate.wordpress.com/

Internship culture an offence against equality of opportunity?

My friend Paul, who blogs regularly over at Bad Conscience has an article over at Comment is Free.  He argues that the current need for graduates to have had experience (ie. have done sometimes unpaid internships) and so forth offends against equality of opportunity.  Check it out.

As I type, the quality of comments is quite high.  No doubt within a few hours the detritus that regularly fouls up CiF will have had their way though.