Monthly Archives: April 2012

On Sam Harris on free will

Over on the ABC Religion and Ethics Portal, I’ve written a long response to the new book, Free Will, by Sam Harris. I say “response” rather than “review”, because much of it discusses my own reflections on fate, free will, determinism, and the long cultural conversation that we’ve been having about these things in the West, going back for thousands of years.

My problem with the Sam Harris book is not so much that I disagree with his conclusions – although I do disagree with some of them – so much that I disagree with the way he approaches the problem. First, he uses a rather idiosyncratic definition of free will that doesn’t have much to do with definitions that have been used by philosophers or with whatever intuitive idea of free will the folk might have (if, indeed, they even have a unified idea of it – I suspect that the folk talk past each other on this to a large extent). Thus, much of the book has an air of attacking a straw man.

Second, and worse, Harris responds to compatibilists by accusing them of changing the subject (notwithstanding that attempts to work out what it might be for actions to be “up to us”, including the plausibility of compatibilist accounts, have been part of the conversation at least since Hellenistic times) and of writing like theologians (whatever that actually means, it is not likely to be true of Thomas Hobbes, David Hume, A.J. Ayer, Daniel Dennett, or other leading compatibilists). There’s a certain insouciance, at best, about all this.

As for whether “we have free will”, I remain of the opinion that libertarian views of free will are ultimately unintelligible – this seems to me the case with agent causation views, and I doubt that event causation views of libertarian free will, such as Robert Kane’s, can fare any better. Indeed, I’d argue that they eventually rely covertly on agent causation intuitions to give themselves any plausibility. About the best libertarians can do is claim, rather lamely, that all ideas of causation are mysterious when pushed far enough.

I agree with Sam Harris on the non-existence of libertarian free will – if the idea even makes sense – though Harris shows no sign of having read at all deeply in the literature. I also think that compatibilists have enough problems to make free will, at best, a matter of judgment and degree. But the naked claim, “You do not have free will,” uttered to ordinary people, still seems to me more false than true. More research is needed on what this claim actually conveys to people (and it may convey different things to people from different social classes, educational backgrounds, parts of the world, etc. (experimental philosophers take note)), but it looks to me that what is likely to be at stake for many people is not so much the truth or falsity of something like agent causation but the truth or falsity of some kind of fatalism. Saying “You do not have free will,” is likely to convey, to many people, in many circumstances, the false (and perhaps demoralising) message that some kind of fatalism is the truth of it.

I’m painfully aware of a similar issue in metaethics. I deny that there are objective moral truths of the form, “X-ing is morally wrong.” That’s because I take a particular view as to what this conveys, and I consider what it conveys to be false. On the other hand, I’d want to explain myself very carefully before saying to the folk, “Torturing babies for fun is not morally wrong.” That can all too easily convey the false message that torturing babies for fun is not, in my evaluation, bad. And when I say bad, I don’t mean as in, “That was baaaad, dude!”

The Ethics of Asteroid Mining

 

Asteroid mining spacecraft

Asteroid mining spacecraft (Photo credit: Wikipedia)

 

While asteroid mining is still the stuff of science fiction, Google’s Larry Paige, James Cameron and a few others have said they intend to get into the business. While this might seem like a crazy idea, asteroid mining actually has significant commercial potential. After all, the asteroids are composed of material that would be very useful in space operations. Interestingly enough, one of the most valuable components of asteroids would be water. While water is cheap and abundant on earth, putting into orbit is rather expensive. As for its value in space, it can be converted into liquid oxygen and liquid hydrogen-both of which are key fuels in space vessels. There is also the fact that humans need water to survive, so perhaps someday people will be drinking asteroid water in space (or on earth as a fabulously wasteful luxury item). Some asteroids also contain valuable metals that could be economically mined and used in space  or earth (getting things down is far cheaper than getting things up).

Being a science fiction buff, it is hardly surprising that I am very much in favor of asteroid mining-if only for the fact that it would simply be cool to have asteroid mining occurring in my lifetime. That said, as a philosopher I do have some ethical concerns about asteroid mining.

When it comes to mining, asteroid or otherwise, a main points of moral concern are the impact on the environment and the impact on human health and well being. Mining on earth often has a catastrophic effect on the environment in terms of the direct damage done by the excavating and the secondary effects from such things as the chemicals used in the mining process. These environmental impacts in turn impact the human populations in various ways, such as killing people directly in disasters (such as when retaining walls fail and cause deaths through flooding) and indirectly harming people through chemical contamination.

On the face of it, asteroid mining seems to have a major ethical advantage over terrestrial mining. After all, the asteroids that will be mined are essentially lifeless rocks in space. As such, there will most likely be no ecosystems to damage. While the asteroids that are mined will be destroyed, it seems rather difficult to argue that destroying an asteroid to mine it would be wrong. After all, it is literally just a rock in space and mining it, as far as is known, would have no environmental impact worth noting. In regards to the impact on humans, since asteroid mining takes place in space, the human populations of earth will be safely away from any side effects of mining. As such, asteroid mining seems to be morally acceptable on the grounds that it will almost certainly do no meaningful environmental damage.

It might be objected that the asteroids should still be left alone, despite the fact that they are almost certainly lifeless and thus devoid of creatures that could even be conceivably harmed by the mining. While I am an environmentalist, I do find it rather challenging to find a plausible ground on which to argue that lifeless asteroids should not be mined. After all, most of my stock arguments regarding the environment involve the impact of harms on living creatures (directly or indirectly).

That said, a case could be made that the asteroids themselves have a right not to be mined. But, that would seem to be a rather difficult case to plausible make. However, some other case could be made against mining them, perhaps one based on the concern of any asteroid environmentalists regarding these rocks.

In light of the above arguments, it would seem that there are not any reasonable environmentally based moral arguments against the mining of the asteroids. That could, of course, change if ecosystems were found on asteroids or if it turned out that the asteroids performed an important role in the solar system (this seems unlikely, but not beyond the realm of possibility).

Naturally, the moral concerns regarding asteroid mining are not limited to the environmental impact (or lack thereof) of the mining. There are also the usual concerns regarding the people who will be working in the field. Of course, that is not specific to asteroid mining and hence I will not address the ethics of labor here, other than to say the obvious: those working in the field should be justly compensated.

One moral concern that does interest me is the matter of ownership of the asteroids. What will most likely happen is that everything will play out as usual:  those who control the big guns and big money will decide who owns the rocks. If it follows the usual pattern, corporations will end up owning the rocks and will, with any luck, exploit them for significant profits.  Of course, that just says what will probably happen, not what would be morally right.

Interestingly enough, the situation with the asteroids nicely fits into the state of nature scenarios envisioned by thinkers like Hobbes and Locke: there are resources in abundance with no effective authority (“space police”) over them -at least not yet. Since there are no rightful owners (or, put another way, we are all potentially rightful owners), it is tempting to claim that they are they for the taking: that is, an asteroid belongs to whoever, in Locke’s terms, mixes their labor with it and makes it their own (or more likely their employer’s own). This does have a certain appeal. After all, if my associates and I construct a robot ship that flies out to asteroid and mines it, we seem to have earned the right to that asteroid through our efforts. After all, before our ship mined it for water and metal, these valuable resources were just drifting in space, surrounded by rock. As such, it would seem that we would have the right to grab as many asteroids as we can-as would our competitors.

Of course, Locke also has his proviso: those who take from the common resources must leave as much and as good for others. While this proviso has been grotesquely violated on earth, the asteroids provide us with a new opportunity (presumably to continue to grotesquely violate that proviso) to consider how to share (or not) the resources in the asteroids.

Naturally, it might be argued that there is no obligation to leave as much and as good for others in space and that things should be on a strict first grab, first get approach. After all, the people who get their equipment into space would have done the work (or put up the money) and hence (as argued above) would be entitled to all they can grab and use or sell. Other people are free to grab what they can, provided that they have access to the resources needed to reach and mine the asteroids. Naturally, the folks who lack the resources to compete will end up, as they always do, out of luck and poor.

While this has a certain appeal, a case can be made as to why the resources should be shared. One reason is that the people who reach the asteroids to mine them did not do so by creating the means out of nothing. After all, reaching the asteroids will be the result of centuries of human civilization that made such technology possible. As such, there would seem to be a general debt owed to humanity and paying this off would involve also contributing to the general good of humanity. Naturally, this line of reasoning can be countered by arguing that the successful miners will benefit humanity when their profits “trickle down” from space.

Second, there is the concern for not only the people who are alive today but also for the people to be. To use an analogy, think of a buffet line: the mere fact that I am first in line does not seem to give me the right to devour everything I can with no regard for the people behind me. It also does not give me the right to grab whatever I cannot eat myself so I can sell it to those who just happened to be behind me in line. As such, these resources should be treated in a similar manner, namely fairly and with some concern for those who are behind the first people in line.

Fortunately, space is really big and there are vast resources out there that will help with the distribution problem of said resources. Of course, the same used to be said of the earth and, as we expand, we will no doubt find even the solar system too small for our needs.

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Alexander Aan case

Just briefly, I care enough about this case to have joined the letter-writing campaign … and it’s possible that you will, too. If you want to know more, go here (a post on my personal blog, which I won’t repeat in full) – and follow the further link, where you can write a letter in whatever terms you see fit.

This is about the guy who is in jail in Indonesia for expressing his atheist views, and criticising Muhammad, on Facebook.

Nice Guy Materialism

Patricia Churchland

The April issue of The Philosophers’ Magazine is now published, and it contains a spirited interview by Julian Baggini with Patricia Churchland — you can read it here.  She talks about her new book, Braintrust, but what’s most interesting to me comes near the end, where she explains the birth of eliminative materialism.

‘It’s a position most people know only in caricature, and so they take the straw man version and attack that,’ she argues. The view gets dismissed as something silly like the belief that there are no beliefs, or the denial of the existence of consciousness, but Churchland claims that really nothing is eliminated — the view is about explanation, about conceptual re-organization, not metaphysics.  So why call it ‘eliminative materialism’?

It turns out that Richard Rorty introduced the term ‘eliminative materialism’, so the words were already out there.  Churchland says, ‘We talked about calling it revisionary materialism, and Paul said, look, if we introduce a whole new term here (a) people aren’t going to recognise it, so they aren’t going to read it, and (b) they’re going to say who the fuck are these upstarts, and we will simply be dismissed.  So we thought better to take something that’s recognisable and go with it.  In the end, I think that was a mistake. I’d call it revisionary materialism if I had to do it all over again, I’d call it really nice guy materialism if I had that opportunity, I’d give it a really nice name’.  What’s the actual view?

‘As in the case of fire, which originally encompassed not just burning of wood but what went on in the Sun, and lightning and so forth, it will fragment.  That’s what’s happened with memory … there are all these different memory systems.  We know there are many different components to it, and they are dissociable anatomically ….’ Nothing gets eliminated, exactly, but perhaps explanations of memory can no longer depend on a single explanatory mechanism.  We don’t think of what’s going on in the sun, burning wood and lightning as the same kind of thing … it’s fragmented out in our explanations.  Maybe so too with memory and other mental notions.

The idea is not that consciousness, belief and desire do not exist, and must be (Borg voice) ELIMINATED, but that we ought to revise folk explanations of our mental lives to match up a bit better with our growing understanding of how our brains actually work.  So what do you think about nice guy materialism?

Conservatives?

Karl Marx 1882 (edited)

Back in my undergraduate days, one of my political science professors semi-jokingly explained the difference between our  (the United States) political system and the Soviet system: “they have one political part, we have one more than that.” While this was obviously a oversimplification, he did make a very good point. After all, while we do get a choice, it is a rather limited choice between the Republican or the Democrat.

Because the United States has but two truly viable parties, this tends to create an ideological compression in which people are often forced to pick a party that does not reflect the range of their beliefs. While this is true of the Democrats, this was especially evident as the Republicans went through the process of selecting their 2012 candidate. To be specific, this process has made it rather clear that there are at least two distinct types of conservatives that have been compressed under the tent of one party.

The first type is the fiscal conservative. Being a fiscal conservative is generally taken to involve being conservative about taxation and  government spending. To be more specific, fiscal conservatives favor keeping both of these at a minimum.

While I typically get branded as a liberal, I am actually a fiscal conservative: I favor lowering taxes and government expenditures to a minimal level consistent with the government fulfilling its legal and moral duties (such as defense). I am also against wasteful spending, corruption, and pork. As might be imagined, the disputes tend to get started when it comes to the matter of defining the legal and moral duties of the state.

The second type is the social conservative. Being a social conservative is generally taken to involve the idea that one should conserve (or preserve) “the way things were” and thus avoid change in social areas.  The social areas include things such as religion, morals, race-relations, gender roles and so on. As might be imagined, there are degrees of conservatism in this area. Some folks tend to regard almost any change in the social areas as suspicious and would prefer to keep everything as it was. Others are considerably more flexible and focus on conserving what they regard as good, but are willing to accept certain changes. Of course, a “conservative” who is too willing to accept change (even good change) runs the obvious risk of becoming a liberal or even a progressive.

In a limited sense, I am a conservative: I am quite willing to conserve what is good and I am against changing things without justification. This is, of course, a reasonable position: to infer that past idea, morals and values are incorrect simply because they are old is just as fallacious as assuming that they are correct just because they are old. After all, the age of such things (unlike milk), at least by itself, has no bearing on their goodness or badness. As might be imagined, being a conservative in this sense is not what people usually think of when they think of what it is to be a conservative. After all, someone who thinks that something should be conserved on the basis of rational arguments for its goodness just seems to be, well, rational. As such, a mere willingness to conserve what is both old and good does not seem to be enough to count as a social conservative. The question is, of course, what more is needed.

While some might take the easy path and try to define conservatives against a straw man version of the liberal, that would be rather unfair and not exactly reasonable. It would, of course, be equally unfair to present a straw man version of the conservative. That said, given that the political vocabulary is so limited in this regard, it might be rather hard to avoid creating straw men. In fact, the ideological compression caused by the United States’ two party system might make straw men inevitable.

The easy and obvious approach is to regard social conservatives as  people who regard the way things have been in the social areas as being correct. Naturally, if they claim that such things are good because they are old or traditional, they are committing the classic fallacy of appeal to tradition. If they prefer such things because of their psychology, then this says why they believe what they do, but does nothing to support the correctness of said beliefs. After all, if they just like the old and dislike the new, this does nothing to show that the old is good and the new is bad. It just says something about their mental states. To use the obvious analogy, the fact that I have some preference for music from my college days does not entail that the music of today is inferior or bad. Likewise, the fact that some folks prefer the music of today to the music of that time does not prove that the music of the 1980s is inferior.

To avoid falling into fallacies, a conservative of this sort would need to argue that the traditional values are better than the liberal alternatives based on grounds other than mere tradition. That is, they need to show that the traditional values (as they see them) are good, rather than saying that they are good because they are traditional. Of course, this would make such people contingent conservatives. After all, their commitment would be to what is good rather than what is merely traditional and this would leave open the possibility that they could accept “liberal” values as good. Unless, of course, it is a matter of necessity that traditional values are always better than the liberal values. The challenge then, obviously enough, is to account for the initial goodness of today’s conservative values-after all, there are various much older values that they replaced.

It is, of course, somewhat tempting to take “liberal” and “conservative” as being marketing and rhetorical terms rather than having much value in categorizing political views. After all, people who identify as liberals take being a liberal to involve the virtues of tolerance, acceptance and so on while regarding conservatives as clinging to an unjust past out of fear of change. In response, those who identify as conservatives often see themselves as defending what is good and holy from the depravity of the godless liberals and their agenda.

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Screw PETA?

Cover of a comic book created by PETA as part ...

(Photo credit: Wikipedia)

During an interview with Rolling Stone, actress Jennifer Lawrence discussed her squirrel skinning scene in Winter’s Bone  and said “I should say it wasn’t real, for PETA. But screw PETA.” Predictably, PETA president Ingrid Newkirk replied by saying that Lawrence “is young and the plight of animals somehow hasn’t yet touched her heart. As Henry David Thoreau said, ‘The squirrel you kill in jest, dies in earnest.’ We are told that this squirrel was hit by a car, but when people kill animals, it is the animals who are ‘screwed,’ not PETA, and one day I hope she will try to make up for any pain she might have caused any animal who did nothing but try to eke out a humble existence in nature.”

While it might seem somewhat odd, I find myself in agreement and disagreement with the views expressed by Lawrence and Newkirk.  This is both in terms of substance and style.

While I do hold that hunting and eating animals can be morally acceptable, I do agree with Newkirk and Thoreau  that killing animals “in jest” creates pain that makes such actions morally wrong. This is, obviously enough, something that can easily be argued for on utilitarian grounds. Even Kant would agree-after all, he notes that cruelty to animals for sport cannot be morally justified. As such, I am in agreement with Newkirk on this point. That said, I also agree with Lawrence-or at least I am sympathetic to her statement.

While PETA often has laudable goals, their approach often has unfortunate tendencies. First, they often do things that are rather silly or questionable (such as the infamous holocaust and slavery analogies). PETA folks are, of course, aware of this and have argued that such methods are necessary in order to get media attention. While this does have a certain appeal (after all, PETA is famous), there is the concern that PETA undercuts its own effectiveness by such tactics. After all, while they do get media attention, their actions often seem to create the impression that PETA is silly and out of touch. This makes it easier for people to (fallaciously) dismiss PETA and the issues it raises as silly, which actually does harm to the causes they purport to serve. While I do get the need to put on a show for the media, I tend to think PETA is perhaps more about the show than about the causes. But perhaps I am just jealous of the attention that they get and I do not.

Second, PETA often holds what seem to be absurd positions, perhaps also calculated to get attention. For example, PETA condemns the “pastime” of owning pets. Since many PETA folks have pets, it is not surprising that their substantial criticism of pet ownership focuses on the abuse of  pets rather than on simply having a pet. After all, while pet ownership does enable the abuse of pets, condemning it because some people are bad to pets is on par with condemning relationships because some people are bad to their partners (or condemning parenthood because some parents are bad to their kids).  In the case of relationships, it is true that without relationships, there would be no domestic violence. However, it is absurd to claim that relationships thus cause domestic violence. Likewise for pets. After all, while it is true that there would be no abuse of pets if there were no pets, this does not show that the abuse of animals is caused by the “pastime” of having pets. As Aristotle might say, it is not all pet ownership that is to be condemned, but only the bad sort.  While I do agree with their view that abusing pets is wrong, I do not find their apparent bashing of the “pastime” of having pets to be very appealing or well supported. Of course, I have a husky-so perhaps I am blinded by being a part of this “peculiar institution.”

Once again, I do get the need to take seemingly startling positions in order to attract the attention of the media. After all, while PETA gets into the news, philosophical essays on animal issues rarely garners attention (with the exception of Peter Singer, who is also skilled in self-promotion). However, I am inclined to think that such tactics can do more harm than good in that they provide significant rhetorical ammunition to people who oppose the moral positions taken by PETA. However, I am open to the very real possibility that a PETA stunt does more good than a reasoned essay on the ethical treatment of animals. If this is the case,  then I would have to accept that PETA is in the right and that my criticism is off the mark.

Third, the attitude expressed by Newkirk and other PETA folks inclines me to take some pleasure in Lawrence’s remark. While the moral points are reasonable, the tone of this approach strikes me as both patronizing and self-righteous. Of course, folks have said the same about me (sometimes correctly). While I do agree with many of the ethical views held by PETA folks, the approach PETA takes does sometimes incline me to say “screw PETA.” While rejecting  a statement because of one’s attitude towards the tone of the speaker is a fallacy, a patronizing and self-righteous approach is not very polite nor does it seem conducive to persuading people. Of course, Newkirk did get considerable attention for her response while this posting will no doubt not even be the smallest speck on the media radar.

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University Dress Code

Dress code as seen at a London Club in the Soh...

(Photo credit: Wikipedia)

My university, Florida A&M University (FAMU), recently adopted a dress code (or, to be more technical the trustees approved new dress standards). This code allows professors to prevent students from attending classes (or other functions) if the students are not dress appropriately. Previously only the school of business had a dress code.

There seem to be three main reasons for this code. The first is that it is taken as educational. That is, it is supposed to teach students what sort of dress will serve them best professionally and socially. The second relates to classroom order, namely it is intended to deter students from wearing clothing to class that could disrupt the class. The third is a matter of image, specifically that it is aimed at preventing students from wearing clothing that will make FAMU look bad.

While I have not (as of  this writing) been supplied with a list of banned attire, it does include “do-rags”, hoods, and the infamous underwear revealing “saggy pants.” Rumor also has it that tube tops and t-shirts with inflammatory language will also be banned.

As might be imagined, I am somewhat divided on this matter. However, I will endeavor to sort through the matter from a philosophical and professorial perspective. I will do so by looking at the reasons behind the code.

The first reason nicely matches Aristotle’s views of education. When discussing moral education, Aristotle notes that young people do not find a temperate life to be particularly appealing, so it is necessary to condition them to such a life. Doing so, he argues, will make it less irksome and hence it will be all the easier to ensure that they follow the right path throughout life. As might be imagined, many college students would prefer to not dress like professionals and prefer to be rather more casual. Also, some college students clearly prefer the now forbidden styles. As might be imagined, the job creators who will hire the students when the graduate will expect their employees to dress in appropriate ways. As such, the university would merely be extending its mission of conditioning students for the workplace by adding in control over their modes of dress. After all, the American education system has been training students to follow schedules, do boring work at the behest of others, obey petty authorities, stand in lines, and so on. What, it might be asked, is the problem with adding a conformity of costume to the curriculum of conditioning?

The obvious problem is, of course, that such an imposition seems to violate the liberty of the students. Since they are adults, there is a presumption in favor of their right to dress as they choose. Naturally, this should match the laws regarding public indecency (although those could be challenged as well). However, provided the students are not violating such laws, it would seem reasonable to not impose on their liberty. Unless, of course, the harm done by specific attire would morally warrant imposing on the liberty of the students. This takes me to the second reason.

The second reason does have some appeal. While I have never had a class actually disrupted by someone’s choice of attire, it does seem possible for this to happen-provided that the clothing was such that it would create a significant and lasting impact on the class. In all my years of teaching, about the most extreme reactions I have seen is having some students stare briefly at another student because of his/her choice of clothing. This has sometimes been followed by some whispering. However, this sort of “disruption” is nothing compared with the disruptive influence of personal electronics and people talking to each other in class. Naturally, students coming to class partially or fully naked would probably have a significant impact-but that is already covered, I think, by existing laws regarding public nudity. Because of this, I have never really considered improper attire a threat to my classroom-but my experience might be unusual. There is also the possibility that I am blind to the damage it has been doing in my classes.  If other professors’ classes (and mine) are, in fact, being disrupted by improper attire, then the code would make sense on this ground. After all, the disruption of class would harm the other students and thus warrant imposing on the liberty of the student whose attire is causing the disruption.

Of course, it could be countered that there are cases in which the student cannot be reasonably held accountable for the reaction of others. To use the obvious analogy to free speech, if a student says something that annoys, offends or otherwise bothers other students, this does not automatically entail that the student should be compelled to be silent. For example, if a student presents an argument in favor of God’s existence that really annoys some atheists in a religion class, it would hardly be right to silence the student because of this.

The obvious counter to this is to argue that the clothing being banned is not the clothing equivalent of a rational argument that bothers those who disagree. Rather, the clothing is on par with someone shouting vulgarities in class. If this is so, the code would seem sensible.

The third reason also has some appeal. While philosophers are supposed to be concerned with wisdom rather than with the “sights and sounds”, I recognize the importance of appearances when it comes to matters such as recruitment and reputation. For example, if prospective students and their parents see FAMU students dressed inappropriately for higher education, this might impact their decision to attend FAMU (although our enrollment has been at record levels). As another example, photos of the university that feature inappropriately attired students could also do damage to the school’s reputation. After all, reputation is often more about appearance than substance. Naturally, it might be countered that people should be more concerned with the substance than with the appearance, but that idea seems quaintly out of touch in a time when people assert that “perception is reality.”  In any case, if the damage done to the university by the inappropriate attire exceeded the damage done to the students by imposing on their liberty, then the imposition of the code would thus seem morally warranted.

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Kathrine Switzer Interviewed

In 1967, Kathrine Switzer became the first woman to enter the Boston Marathon as an official participant. She didn’t get very far through the race, before she was attacked physically by the race organiser, Jock Semple. She tells the story here:

If you’re tired of much that passes for feminism in the blogosphere – you know, identity politics, endless banging on incoherently about privilege, elevatorgate, banalities about sexual epithets, worries about the trolley problem, etc, etc, – then have a listen to this interview with Switzer (starting about 45 minutes in). Even if you’re not interested in sport, it is kind of inspirational if you’re interested in the history of feminism.

Seriously, listen to it – it’s a very cool story.

Strip Searches

The United States Supreme Court, the highest c...

They are, in fact, the judge of you. And me, too. (Photo credit: Wikipedia)

While the media and public were briefly focused on the Supreme Court’s consideration of the constitutionality of the Affordable Care Act, the court made a rather troubling ruling on a case involving Albert Florence.F

Florence, a finance director for a care dealership, was stopped on the way to a family event. He was then arrested when the trooper determined that there was a warrant for his arrest. While the warrant was in error (he had paid the fine in question) and he had a document to that effect, he was still jailed. While in jail he was strip searched. Six days later he was transferred and strip searched once again. Florence took issue with this treatment and his case made it to the supreme court.

By a predictable 5-4 vote, the Court ruled that anyone who is arrested (even for minor offenses, such as traffic violations) can be stripped searched. The ruling allows this even when there is no reasonable suspicion the person is concealing anything that would require a strip search to locate.

In the majority opinion Justice Kennedy noted that it would be “unworkable” to require jail officials to strip search only in cases in which they had reasonable grounds to suspect that a strip search would be needed. As might be imagined, this seems like an absurd thing to say. After all, it seems to be saying that it would not work to limit strip searches to cases in which a strip search would be reasonably justified. I certainly hope that this same logic is not extended to arrests. After all, the police are currently limited to arresting people when they have reasonable cause to suspect that a person needs to be arrested. I do hope that this is not also “unworkable.”

Kennedy did attempt to back up his point with an example, specifically that of the infamous Timothy McVeigh.  McVeigh had been arrested for driving without a license plate which caused Kennedy to note that “people detained for minor offenses can turn out to be the most devious and dangerous criminals.”

One rather obvious response to this is that his example is irrelevant to the matter of strip searching. After all, nothing about the McVeigh case involved finding something dangerous or important by strip searching him. Now, if McVeigh had been arrested on a traffic stop and the police had found a bomb taped to his genitals and had thus prevented the horrific bombing, then Kennedy’s example would have had at least some relevance. It would, of course, still be just one example and thus an incredibly weak argument by example.

It might be countered that Kennedy did not mean for this to be an example directly showing the importance of strip searching people but rather as evidence that very bad people can be arrested for minor offenses. Presumably his reasoning is that such people would be more likely to hide things in places that only a strip search would reveal. Of course, this logic would also seem to apply to having the police check anyone, such as folks who eat fast food. After all, “people who eat at McDonald’s can turn out to be the most devious and dangerous criminals.”

It might be replied that people who are arrested for minor offenses have been arrested and hence are legitimately subject to searches in ways that people who are just out and about are not subject to arrest. This can, of course, be countered by the reply that it seems to be unwarranted to treat all prisoners the same, regardless of the offense and other factors. After all, if the police can distinguish between who should and should not be arrested, they should be able to distinguish between who needs to be strip searched and who does not.

This can be countered by arguing that the strip searching is done for the safety of the prisoners and the guards. After all, if everyone is strip searched, then the chances of dangerous items getting into prisons is somewhat lower. However, there is the fact that the overwhelming majority of people who are arrested for minor offenses are not concealing anything and to strip search people on the minute chance that they have something would be overreacting. To use an analogy, putting all prisoners in straight jackets and masks would provide greater protection, but that seems needlessly excessive for the vast majority of prisoners.  There is also the rather important fact that people are not supposed to be subject to cruel and unusual punishment.

While searching prisoners is a legitimate practice, strip searching certainly seems to go beyond what is needed in the case of minor offenses. After all, even Alito notes that strip searches are humiliating. As such, to subject a minor offender to such unnecessary humiliation  would be to punish them in cruel and unusual ways-even before they are found guilty.

Naturally, the ruling does not require that everyone who is arrested be strip searched-it just allows it to occur.  Alito even noted that for most people arrested for minor offenses, “admission to the general jail population, with the concomitant humiliation of a strip-search, may not be reasonable.” As such, jails could elect to house those arrested for minor offenses apart from the general jail population and not strip search them. However, the fact that this could be done does not mean it will be done and there is the rather obvious concern that this ruling will be exploited to allow the humiliation of people who are arrested on minor offenses. This would add nothing to public safety and would merely serve to impose on liberty, privacy and dignity.

Given that the court accepted that the police have a right to strip search and arrested citizens even without probable cause, it would seem sensible to think that they will rule in favor of the Affordable Care Act. After all, if the state has the right to strip you naked and check out your junk when you are arrested for anything at all, then surely the state has the power to require you to buy health care insurance. In fact, given that an increased number of Americans will be exposed to the chilliness and psychological stress of being strip searched, they will need health insurance more than ever.

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Modern art and its alleged evils

This post is adapted from one I made on personal blog a few days ago – hopefully, it might attract interest here. The issues spin out of current debates in Australia (which are similar to some debates elsewhere) about freedom of speech and expression. During the discussion, I was referred to an article by Ben Hourigan, published by the Institute of Public Affairs – a more-or-less libertarian think tank that I often disagree with (but like the Cato Institute in the US, it also takes some stances that I find intellectually attractive).

This piece by Hourigan goes back some years to a controversy in 2008 about the work of a celebrated Australian photographer, Bill Henson, which can be controversial because of images like this (warning: the image is not, in my view, an example of pedophilia, child pornography, or anything remotely of the kind – but there are people who disagree). I posted on this issue on numerous occasions in June 2008 (e.g. here), if you want to follow up on my personal blog.

Hourigan makes some comments that I agree with:

Australia’s most recent dramatic controversy over freedom of artistic expression centres on veteran photographer Bill Henson’s images of nude and semi-nude pubescent boys and girls. Following a complaint by Hetty Johnston of the anti-child-sexual-assault organisation Bravehearts, in May 2008 police seized photographs from a Henson exhibition due to open at Roslyn Oxley9 Gallery in Sydney. Just under two weeks later, police dropped all charges after the Office of Film and Literature Classification gave nearly all the images in question a rating of G (general). The sole exception, the image of a naked thirteen-year-old girl circulated on exhibition invitations, received a rating of PG (parental guidance recommended). Receipt of any rating at all is enough to quash charges of child pornography or indecency, but the awarded ratings are the broadest recommendations of suitability for any audience available under the Australian scheme, and mean that the Henson photos are subject to no legal restrictions on their exhibition or sale.

When professional, government-appointed classifiers place Henson’s images so clearly within the law, it’s astonishing to see politicians whip up such a media storm and inspire such heavy-handed action from police. The moral panic went all the way to the highest levels of our political system, with Prime Minister Kevin Rudd telling the Nine Network that he found the image of the thirteen-year-old girl “absolutely revolting.” NSW premier Morris Iemma called the photographs “offensive and disgusting.” The politicians’ foray into amateur art criticism continued when Art Monthly Australia used a photograph by Polixeni Papapetrou of a naked-but relatively modestly shot-six-year-old girl as its cover in July 2008. This act of defiance against the attitudes that had victimised Henson prompted the prime minister to comment: “frankly, I can’t stand this stuff.”

Hourigan goes on to say various useful things about this particular episode in Australian social and political life and others, such as the exhibition at an earlier time of the famous Andres Serrano photograph “Piss Christ”. Most notably, he sums up at one point:

The Prime Minister shouldn’t be intruding on civil society by parading his uninformed opinions of contemporary photography in the mass media. The police shouldn’t be confiscating artworks and tarnishing Henson’s reputation with charges relating to child pornography when they should have been able to tell how clearly the images in question fall within the law. Crazy people should have more respect for private property and not go smashing up artworks with hammers, and newspapers shouldn’t do so much to feed a public perception that the art world is impossibly depraved.

However, Hourigan segues into his own rant about the evils of modern art and the culture within which it is created and promoted. The attitudes of hostility to Henson and others are understandable, he thinks, because: “Whether they see it as a way to turn a profit or, more nobly, as their moral and artistic duty, the core of their art practice is the activity of violating, however subtly, mainstream reasoning, taste, and morality.”

So far, so good. Some artists, especially more avant-garde ones, doubtless do consider it their duty to challenge and trangress mainstream reasoning, taste, and morality. That, however, seems to me altogether a good thing as far as it goes. Mainstream ideas and values should not go uncontested, or so I think, and we do rely on artists to contest them. The result may not always be pretty, and sometimes boundaries that should not be crossed will be – or at least that is a risk. For example, contrary to the moral panic in mid-2008, Henson’s photography does not demean or blatantly sexualise its subjects, but what if it did? At some point, images with certain similarities could cross the line and become child pornography, even though that never actually happened in Henson’s case (and the images were ultimately given G-ratings, or in one case a PG rating).

The point is that there are some limits, even if broad ones, to what can be (acceptably) done even in the name of high art. There is an edginess about much serious art, and it is, indeed, understandable that it makes many people uncomfortable.

At the same time … within those broad limits, art plays a valuable role, and it is one that requires defence all the more because of the edginess aspect. Without that defence, it is very easy to imagine the boundaries closing and constricting, as populist political leaders like Kevin Rudd appeal to the wider community’s prejudice and ignorance.

And this is where Hourigan’s emphasis is all wrong. His ultimate point seems to be that the messages conveyed by transgressive art are banal, and that this makes it more difficult to defend art and the artistic community. He makes much of the claim that Henson’s message can be reduced to “puberty is a time of uncertainty, and that even though we might want to treat teenagers as children, their bodies are capable of carrying an adult sexual charge” OR even to something so simple as “puberty is difficult and thirteen-year-olds have a budding sexuality.”

Now, there is something right about this. Perhaps these are (the?) messages conveyed by Henson’s photographs, and the second formulation in particular sounds rather trite. But it won’t work to reduce any artistic production to a message that could equally be expressed as an abstract proposition. Imagine where most popular art and culture would stand if we did this – much of it could be reduced to simple propositions such as “hurting people is bad and romantic love is good”. Hey, by stating this proposition I have now saved you the trouble of reading numerous books and watching numerous TV shows and movies.

That is not how it art works, of course, though exactly how it does work is a complicated issue for critics, philosophers, and artists themselves in their introspective moments. It’s not that we can really expect modern art to embody more surprising, or arcane, social, moral, or philosophical insights. The power of any artwork is not going to depend on these but on its ability to move and provoke through mastery of technique. If we are moved by Henson’s work to think thoughts along the lines of, well, “puberty is a time of uncertainty, and … even though we might want to treat teenagers as children, their bodies are capable of carrying an adult sexual charge,” the experience cannot be substituted by my writing those words in a blog post.

The beauty of Henson’s work is that it provokes these thoughts, and doubtless others, perhaps many of them uncertain or mutually contradictory, through the power of its composition and other aesthetic qualities. The thoughts are not merely stated abstractly, perhaps in a dogmatic way, perhaps supported by arguments, but are brought home to us through surprise (but not surprise at an abstract proposition) and emotion, delivered by the artist’s mastery of his chosen medium.

Saying much more would lead us into controversial and intellectually murky areas of philosophical aesthetics, a subject on which I claim no specialist expertise. But it is obtuse and unworkable to demand of artists that they convey more profound and surprising messages. At the time of the Henson debacle, Hourigan found some useful and even incisive things to say, but his final admonition to artists misses the point.