Saturday, December 06, 2008

Ethics and law

As a general rule, ethics should be translated into law. If you believe something is ethically compelled, then why not force people to do it? If you're not willing to force people to do something, then in what sense are you saying it's ethically wrong as opposed to merely not to your taste?

Let's take rape and the oppression of women in Islamic countries, for example. I'm completely uninterested in people who fiddle around with the Koran and try to prove that Islam is not misogynist. I really don't give a shit one way or the other what Muslims think their imaginary friend thinks. I will be convinced that Islam supports the rights of women when they make and vigorously enforce laws against sexual and physical assault against women. Until then any talk about the rights of women in Islam is at best just so much bullshit and at worst contemptible hypocrisy.

Contrawise, if you think abortion is wrong, you should try to make it illegal. Period. End of story. If you don't want to make abortion illegal, then why talk about how abortion is some sort "tragedy" or social loss? If it's just that abortion is not to your taste, then just shut the fuck up (metaphorically speaking) and don't have one; it's none of your goddamn business whether a woman has an abortion. (Actually, talking about how abortion is a tragedy is an end-run around the law mechanisms, attempting to use force in the form of social ostracism to replace the courts and formal legal mechanisms.)

This pretty much goes for all our ethical intuitions. The best we can do with our law is make it match our ethical intuitions; and the only thing that separates our ethical intuitions from our tastes and preferences is our willingness to use force. I don't intend a superficial translation of ethics to law: there are various levels of abstraction and complicated considerations necessary to most effectively map our ethical intuitions to law. But at the end of the day, law must follow and reflect our ethical intuitions, and some belief is an ethical intuition if and only if one desires it be mapped into law.

There's one glaring exception, though: freedom of speech. Even though our ethical intuition may hold that certain kinds of speech are really abhorrent and ethically objectionable, we have to permit all speech. And this principle goes beyond merely the tolerance of other people's abhorrent speech to permit our own abhorrent speech. If you want to speak merely for the pleasure of hearing your own voice, you can talk in private.

Law and law enforcement is the socialization of the individual, unilateral use of force. In order to socialize the use of force, though, there has to be a non-coercive mechanism at some level to actually perform the socialization. We cannot decide as a society how well our law matches our ethical intuitions unless we can communicate those ethical intuitions to each other, especially when those intuitions contradict present law. Without near-absolute freedom of speech, the law cannot change. What becomes illegal would become unspeakable.

So the way to manage speech is "upside down" compared with how we use speech to manage actions. When managing speech, we must have the freedom to say whatever we please, and criticize what anyone else says without implying we wish to make that speech illegal. Ethical criticism of an action however, always entails that the speaker, explicitly or covertly, advocates making that action illegal.

33 comments:

  1. Though you mention it in your next post, am I correct in assuming the freedom of speech you advocate in this post also includes exceptions for libel, slander, and obviously dangerous speech (like shouting "Fire" in a crowded theatre)?

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  2. Ethical criticism of an action however, always entails that the speaker, explicitly or covertly, advocates making that action illegal.

    Dude, either this makes no fucking sense at all, or I am missing something. There are huge categories of action that one can reasonably consider to be ethically wrong, but for practical--or even ethical themselves--reasons not want to involve the force of law in.

    For example, I think it is ethically wrong for superannuated senior faculty to hang onto their tenured positions when they are no longer productive. But I do not think the law should involve itself in this behavior.

    I think it is wrong for people to cheat at golf, but I don't think the law should involve itself in games of golf.

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  3. Dude, either this makes no fucking sense at all, or I am missing something.

    You're missing something.

    For example, I think it is ethically wrong for superannuated senior faculty to hang onto their tenured positions when they are no longer productive. But I do not think the law should involve itself in this behavior.

    I think it is wrong for people to cheat at golf, but I don't think the law should involve itself in games of golf.


    If you don't think these activities should be in some sense illegal then you're expressing preferences, not ethical beliefs. You would prefer that superannuated faculty retire; you would prefer that people not cheat at golf. Me, I don't give a shit about either.

    Two metaphors:

    1) Ideal gas law.

    2) There once was a lawyer named Rex,
    With diminutive organs of sex
    When charged with exposure
    He said with composure
    De minimums non curat lex

    You're smart enough to understand the metaphors.

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  4. There is another issue. What would a society be like in which every act I consider unethical were actually illegal? The police would be swamped with accusations of trivial lying and cheating. If they have discretion to ignore or to prosecute, isn't that a police state?

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  5. Anonymous,

    The point isn't that we somehow first determine whether something is or is not ethical, and then whether we should or should not attempt to make it illegal; the point is that we should not call something unethical if we do not already believe that the act should be in some sense illegal. There are many gray areas--many things that we are ambivalent about. But if we are really bothered by some act but after reflection decide that it, on balance, should not be illegal, then we are explicitly acknowledging that the act is merely a matter of taste (which does not mean it is not still important to us).

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  6. Anonymous: What Chris said.

    You apparently did not comprehend or pay attention to my earlier comment. Please Google the phrase, "De minimus non curat lex".

    (I apologize for the misspelling in the previous post.)

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  7. Let me be more specific: It's not an actual objection to my thesis that there are acts that are too trivial to use all the formal mechanisms of the democratic legal system.

    The essential argument is that there are some preferences we're willing to enforce, and some that we're not willing to enforce, and it is that distinction which separates the ethical from the preferential. The actual level of enforcement, and how much effort we put into the socialization of enforcement, is not particularly relevant.

    Hence my invocation of the Ideal Gas Law. No actual gas behaves precisely as the Ideal Gas Law predicts: There are trivial characteristics of any actual gas that show trivial discrepancies from the ideal. But these trivial discrepancies are not best explained by falsifying the essential character of the ideal law.

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  8. The trouble with this argument is that it ignores the cost of enforcement. The idea that something which does a great deal of harm but is so complicated that legislating against it isn't effective and does collateral damage by restricting legitimate freedoms, is less wrong than something which does very little harm but is simple enough to be easily preventable doesn't make much sense to me.

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  9. wildeabandon,

    If you believe that X is wrong the question becomes, do I support laws outlawing or controlling X. If the answer is yes, then X becomes an ethical issue. If it turns out the answer is yes--but (yes, it should be illegal, but it may be difficult, pragmatically, to get an effective law passed), then the question becomes, in an ideal world, would I support a law outlawing or controlling X? If the answer is still yes, then X is still an ethical issue.

    The mere fact that there are ethical issues that are less important to you than X and also easier to control and hence pass laws for, does not change this.

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  10. Chris:

    That hardly works, as in an ideal world everyone would act according to both my tastes and ethical standards, so the question becomes irrelevant. Clearly you mean something different by 'ideal world', but it's not clear to me what that is. Specifically, I think that there are a lot of forms of bigotry which I can't even imagine a world in which it's possible to legislate against them without doing enormous harm to principles of freedom, but I don't think that means that my objection to them is merely a matter of taste.

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  11. You're equivocating "ideal". Ideal in this sense means ignoring trivial or irrelevant factors, not perfectly suited to your taste.

    Does anyone have any substantive criticism, or are is everyone hung up on meaningless trivia?

    "But professor," says the student, "The ball doesn't fall in precisely 10.342346992 seconds. Gravity must be false!"

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  12. Specifically, I think that there are a lot of forms of bigotry which I can't even imagine a world in which it's possible to legislate against them without doing enormous harm to principles of freedom, but I don't think that means that my objection to them is merely a matter of taste.

    Gee, I really wished I'd addressed this point in my post.

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  13. Gosh, did I forget to say "a lot of forms", implying that I meant action as well as speech?

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  14. Gah. Your comments appear in my inbox backwards, hence replying to the sarcastic shot in kind, rather than the one with actual content.

    I'm not equivocating ideal - I honestly don't know what Chris means. Your definition of ideal there doesn't seem to make any sense in the context of their comment, but perhaps they can clarify what they meant.

    Your declaration that anything which falls outside your definition is meaningless trivia isn't an argument, it's an attempt to browbeat. It completely fails to address the problem of the cost of enforcement, and saying that in an ideal world this cost would be non-existent or negligable entirely fails to convinced unless you can give me some idea of what such an ideal world would look like.

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  15. I'm not equivocating ideal - I honestly don't know what Chris means.

    You are equivocating (i.e. using an inapplicable sense of a word with multiple meanings) but I'll take your word for it that it's an honest mistake. In any event, I've clarified the precise meaning.

    Your declaration that anything which falls outside your definition is meaningless trivia isn't an argument...

    That some cases fall below an arbitrary quantitative standard with no qualitative distinction is the essence of an argument from trivia. It's not an argument against the substantive point.

    it's an attempt to browbeat.

    It is indeed. I tend to browbeat people who post what I think are retarded comments... especially retarded comments that have already been addressed twice. That's the schtick here.

    saying that in an ideal world this cost would be non-existent or negligable entirely fails to convince

    Did you not read this comment, or is English not your first language?

    I will try one more time:

    Professor: If you add this dye to the water, it will appear red.

    Student: But if I add one picogram of the dye, the water does not appear red. Therefore the dye does not make the water turn red.

    Professor: Wow! You're really stupid!

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  16. Gosh, did I forget to say "a lot of forms", implying that I meant action as well as speech?

    Gosh, could it be that acting on bigotry might actually be illegal in like real life and everything?

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  17. Actually, I am not sure it matters exactly what you mean by "ideal." Your decision of whether you will or not support making some action "X" illegal is your decision. I am not sure though, what the point is in making "ideal" refer to where everyone acts according to your standards. If everyone acted according to your standards of ethics, then what would be the point of worrying what is and is not ethical.

    But I was referring to an "ideal" in the sense that BB implied--ignoring the trivial. The point is that it does not really matter, per se, what these trivial matters are. The question is whether you would like "X" to be outlawed (and/or enforced) in some sense. What you do in practice is of course dependent on the circumstances.

    BB's point about misogyny in the Islamic world is spot on. They certainly could pass and enforce laws, today, to protect women. I am sure, however, they would say that the pragmatic realities of their culture makes it too "expensive" to actually do anything about women's rights, which of course proves his point.

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  18. My post was directed at wildeabandon.

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  19. The Ideal Gas Law does not say that in a perfect world, all gasses would really be made of perfectly spherical, uniformly sized balls that collide with perfect conservation of kinetic energy.

    The Ideal Gas Law says, "Let's assume that gasses are made of uniformly sized, perfectly elastic spheres that perfectly conserve of kinetic energy. From this assumption, we can derive the identity Pressure = Temperature / Volume.

    In the real world, gasses are not ideal: They aren't in perfectly uniform elastic spheres, and they radiate away some of their kinetic energy in the form of electromagnetic radiation.

    Even so, we can get very close to the actual reality, and understand the behavior of gasses in a deep way, by talking about ideal gases in this sense.

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  20. So... Assume the costs of enforcement are always zero, and there is a zero probability of making mistakes about enforcement, and the connection between ethics and legality becomes perfect in this ideal sense.

    Of course, in the actual world, the costs of enforcement are not zero, and the probability of error is nonzero. But even so, we get very close: The grey area is precisely in this domain of triviality, defined not by any substantive difference in our ethical beliefs but only in that the ethical "wrongness" falls below an arbitrarily determined threshold, and is not an argument against the underlying substantive position.

    To reemphasize Chris's point tying this discussion back to the OP: For Islam to say that rape is unethical but falls below the threshold of enforcement is just to say that rape is only trivially unethical, a position just as objectionable as the position that it's grossly unethical but somehow we just don't get around to enforcing it.

    For those "Abortion is a gigantic tragedy but I don't want to actually punish women for having them," I would ask the same question in the opposite sense: In what sense is a gigantic tragedy too trivial to enforce?

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  21. BB:

    Did you not read this comment, or is English not your first language?

    I will try one more time:


    Both your comments seem to be repeating the same exchange...

    WA: The cost isn't negligable

    BB: If the cost is negligable, you can ignore it.

    Of course, in the actual world, the costs of enforcement are not zero, and the probability of error is nonzero. But even so, we get very close

    I just don't think that's true. Case in point, prostitution. I would love to make paying for sex illegal, but because the cost would be making it harder for prostitutes to protect themselves I don't advocate it, and the only world I can imagine where that wouldn't be the cost is one where there's gender equity and it wouldn't be a problem in the first place.

    I understand your Ideal Gas analogy, I just think it breaks down at the point where there's only a trivial variation in behaviour, which is true for molecules, and not true for humans.

    Chris:

    Thanks for the clarification. I think I would go so far as to say that in some sense I would like everything I am confident is ethically compelled to be enforced, but I think where I diverge from you and BB is my judgement of how big the gulf is between what I would like to be enforced and what I think can be pragmatically.

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  22. wildeabandon,

    In your example prostitution is illegal in nearly every state. It is illegal because enough people are offended by its presence to make it so. You are right, it is dangerous for prostitutes working under the legal radar.

    Maybe, that is why you no longer want it to be illegal, or at the very least, why you are ambivalent.

    But this is often exactly the type of situation where a person begins to realize that certain, previously abhorrent, actions really are merely a matter of taste. If you truly believed that prostitution was unethical, you could still support its illegality. I suspect you would also support other means to help those who choose to engage in prostitution and find themselves in danger. This is what we (sometimes) do with other illegal behaviors like drug use (another one that many people also realize is often just a matter of taste.)

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  23. (Actually, talking about how abortion is a tragedy is an end-run around the law mechanisms, attempting to use force in the form of social ostracism to replace the courts and formal legal mechanisms.)

    Word

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  24. Wildeabandon:

    I would love to make paying for sex illegal, but because the cost would be making it harder for prostitutes to protect themselves I don't advocate it.

    I kind of see where you're going with this.

    But "making something illegal" in general does not entail any specific enforcement mechanism. It's not a necessary and ineluctable part of the prostitution business that making it illegal would make it harder for prostitutes to protect themselves.

    Accepting arguendo that prostitution is inherently exploitative, an ethical objection to prostitution still entails wanting to make it illegal in some substantive sense. You merely observe that larger unethical and ought-to-be-illegal factors (perhaps the inherent general economic exploitation of capitalism) complicate the situation in present reality.

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  25. Just FYI: In ordinary legal discourse, "costs of enforcement" usually refers to paying police and prisons and the probability of punishing or otherwise coercing people mistakenly and falsely believed to be performing the targeted action.

    Other negative consequences are usually referred to as "unintended consequences" and are also a significant factor in the practical implementation of any ethical belief.

    Again, though, in the ideal case, we ignore complicating practical factors to try to understand the core theoretical model; get the core model right, and it becomes much easier to to deal with the specific practical difficulties.

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  26. In the case of prostitution, considering the ideal case is, I think, especially valuable. I say that it is only those complicating practical factors that prevent one from making prostitution illegal that also justify making it illegal.

    Consider the ideal case, where every person had real practical freedom to choose his or her work: No one was ever forced, directly or indirectly, into any kind of exploitative labor as the price of survival.

    In such a case, it seems hard to justify making prostitution illegal. Either no one would ever voluntarily sell sex for money, in which case prostitution would simply not occur, and it would be pointless to make it illegal, or some people would voluntarily sell sex for money, in which case what would be the justification for interfering with a truly voluntary activity?

    What makes prostitution ethically objectionable in practice is that in a capitalist society, one does indeed have to enter into exploitative labor arrangements to survive. Capitalist exploitation is so pervasive and runs so deep (and the hyper-exploitation of women in general is so pervasive) that many women who would not voluntarily enter into prostitution do so in order to survive.

    And it is precisely this capitalist-induced desperation and misogynist hyper-exploitation that entails that even if prostitution were illegal, women would still engage in it to survive, and the unintended consequences would merely to increase the exploitation and oppression of those women.

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  27. Chris: The current legal status in another country has very little bearing on my views on the ethics of paying for sex, and said views really aren't concerned with offence to the locals.

    I suspect you would also support other means to help those who choose to engage in prostitution and find themselves in danger.
    Yes. Yes, I would. In case it wasn't clear, I don't think that selling sex in unethical, I think that buying it is.

    BB:
    First, the linguistics point is useful, thanks. I have been using "costs of enforcement" throughout this discussion in a broader sense that includes "unintended consequences".

    I think the key to our disagreement comes down to these two paragraphs:

    From the OP:
    "Contrawise, if you think XXX is wrong, you should try to make it illegal. Period. End of story."

    From a later comment:
    "an ethical objection to YYY still entails wanting to make it illegal in some substantive sense. You merely observe that larger unethical and ought-to-be-illegal factors (perhaps the inherent general economic exploitation of capitalism) complicate the situation in present reality."

    The point I've been trying to make all along is that all the things that I think are unethical but wouldn't try to make illegal in current UK society slot into the second paragraph, but the first completely dismisses them.

    I think the difference between the two categories is important - in fact, I think it makes up the vast majority of moral disagreement amongst civilised adults, and dismissing that difference as trivial makes it much harder for people who disagree about things that they think are important to have productive discussion.

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  28. Wildeabandon: Now that I understand what you're talking about, I think it's more important than when I thought you were just talking about paying for police to enforce a law.

    But the point still remains: Do you see prostitution as inherently bad? Would prostitution be bad even if it were a truly voluntary choice of both the seller or the buyer? Or do you see the badness of prostitution as a symptom of a larger evil of general exploitation?

    Because ethical, legal and practical attitudes seem very different based on the two views.

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  29. The essential argument is that there are some preferences we're willing to enforce, and some that we're not willing to enforce, and it is that distinction which separates the ethical from the preferential.

    Oh. I see. You are not attempting to empirically determine what people mean when they distinguish the ethical from the preferential; you are just defining it in a way that you prefer, no matter that it is idiosyncratic.

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  30. you are just defining it in a way that you prefer, no matter that it is idiosyncratic.

    I'm a philosopher, not a linguist or a lexicographer. I'm interested in how words ought to be defined, not how people define them willy-nilly.

    All new ideas, philosophical or otherwise, start as idiosyncracies. Einstein's definition of "space" as "what you measure with a rule" started as an idiosyncratic definition. I'm not Einstein, but I do try to be original in my own way: so sue me.

    I assert that my definition is better: By what substantive principle (other than triviality) would you differentiate an ethical belief you don't want to enforce from a pure I-like-Brussels-sprouts preference?

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  31. I believe that there is a continuum of moral salience, with things like murder, rape, etc. at one end--where application of the force of law is clearly merited--and things like not being served brussels sprouts is at the other--where it is clearly not. Depending on where a particular thing lies on this continuum, it merits more or less opprobrium.

    It sounds like you are saying that it is disingenuous for a parent to say to a child, "It is wrong for you to tease your sister", if they are not prepared to make teasing illegal. This makes no sense at all.

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  32. Comrade PhysioProf,

    Of course, you prefer that your children not tease each other. In what sense does it go past this to the ethical? More than likely you do not think we should outlaw teasing per se, at least not of the sort your children would do. You might well support support legal remedies when teasing becomes harassment. But that is, I think, part of the point. When the action is merely teasing we do simply state our preferences. When it gets to the point where we have serious harassment, then we begin to think about the law and ethics.

    I don't have any problem talking about right and wrong in something I merely prefer. I think all normative judgments are subjective. But when I am so offended by some action (to use an idea from some earlier BB posts) that I want to call it unethical and in essence see it controlled, then it is pointless if I don't also what to make it illegal.

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