Tag Archives: law

Trigger Point

M1911A1 by Springfield Armory, Inc. (contempor...

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One rather important matter is determining the appropriate trigger point for regulation and law. The basic challenge is determining the level at which a problem is such that it warrants the creation and enforcement of regulations and laws.

While it would be unreasonable to expect that an exact line can be drawn in all or even any cases (to require such an exact line would be to fall into the line-drawing fallacy, a variation on the false dilemma fallacy), a general level can presumably be set in regards to tolerance of harm.

Naturally, the level of reasonable tolerance would involve many variables, such as the number of cases of harm, the severity of the harm, the cost of regulation/laws, and so on. For example, paying a cost to regulate or outlaw something that causes no harms would seem to be unreasonable and wasteful.  As such, the various “morality” laws that regulate consensual sex between adults would be unreasonable and wasteful. As another example, paying a modest cost to regulate or outlaw something that causes considerable harm in both numbers and severity would seem reasonable. Thus, the regulation of alcohol and tobacco seems reasonable.

While the specifics will vary from case to case, there should be a consistent approach to these determinations based on general principles regarding costs, number of incidents, severity of the harm and so on. In general, a utilitarian approach would be sensible—weighing out the likely benefits and harms for the various approaches to determine the most reasonable approach.

Not surprisingly, people tend to approach the trigger point of law and regulation very inconsistently. As with most matters of law and regulation, people tend to assess matters based on what they like and dislike rather than rationally assessing the relevant factors.

As a matter of comparison, consider the gun related deaths of children and voter fraud. While there is some dispute about the exact number of children who die from accidental gunshot wounds children obviously do die in this manner.  Not surprisingly, some people have endeavored to strengthen the regulation of guns and pass laws that are aimed at preventing the accidental death of children from gunshots. It is also not surprising that the National Rifle Association (and other similar organizations) have lobbied against such efforts and have argued about the statistics regarding the gun related deaths of children. While the N.R.A. is obviously not in favor of the death of children, the approach taken has also included the standard method of contending that the problem is not at the trigger point at which new regulation or laws should be created and enforced. The general idea is that the harm being done is not significant enough to warrant new regulation or laws regarding guns, such as rules for the safe storage of weapons. In support of this, the N.R.A argues that the death rate from accidental shootings is less than falls, poison or “environmental factors.” That is, not enough children are dying to warrant new laws or regulation (I will assume that the death of a child is regarded as being a serious harm).

There is also considerable dispute about voter fraud, although even those who regard voter fraud as a serious problem admit that the number of incidents is tiny. However, after the recent Supreme Court ruling regarding the Voting Right Act several states enacted laws alleged to be aimed at addressing voter fraud. These laws include those requiring voters to have the proper ID (which former Speaker of the House Jim Wright was not able to get) and those aimed at reducing or eliminating such things as early voting. In general, these laws seem to be ineffective in regards to actual fraud and the existing laws seem to be adequate for catching fraud. For example, eliminating early voting would not seem to have any capacity to deter fraud. While the voter ID laws might seem to have the potential to be effective, actual voter fraud typically does not involve a person voting in person as someone else. Even if it did have some value in preventing voter fraud, it would do so at a great cost, namely disenfranchising many voters. Overall, the main impact of these laws is to not reduce voter fraud (which is minuscule already) but to disenfranchise people. In some cases politicians and pundits admit that these laws are intended to do just that and in some cases they get in trouble for this.

Given the low number of incidents of voter fraud and the considerable harm that is done by the laws allegedly created to counter it, it would seem that such laws would be rather unjustified when using a rational approach to setting a trigger point for new laws or regulations. It could, of course, be argued that the harm done by allowing a minuscule amount of voter fraud is so serious that it warrants disenfranchising people—that is, trying to prevent a few fraudulent votes is worth preventing many legitimate votes from being cast.

Interestingly enough, some of the folks who are pushing hard for new laws to “prevent” voter fraud are the same folks who push hard to prevent new laws to reduce the deaths of children. This presents an interesting look at how people actually make decisions about trigger points.

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Gun Violence, Once More

The most common type of gun confiscated by pol...

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Mass murders, defined as four or more people killed, occur with unfortunate regularity in the United States. These murders typically involve guns—most likely for the obvious reason that guns make killing much easier. The latest incident to grab the public’s attention was a shooting in a Washington Navy yard in which twelve people were murdered. As with each such horrible event, the gun cycle has been restarted.

As always, some people demand that “something be done” while others rush to head off any attempts to actually do something that might involve guns. As with each previous cycle, this one will slowly spin down and lose the eye of the public. Until the next shooting.

I have written so many times about guns and violence that I suspect that I do not have anything new to say about the matter. From what I have heard, seen and read, it seems like the same is true of other people.

In defense of guns, people trot out the usual line about it being people that kill rather than guns. This is, obviously enough, a true claim: guns are tools that people sometimes use to kill other people. Guns do not engage in murder by themselves. Another way to look at it is that it is true that guns do not commit gun crimes—people do. Of course, the same is true about drug crimes: drugs do not commit drug crimes—people do.

While muttering about guns not killing sounds callous when bullet ridden corpses so recently lay on the ground, this approach does have some merit. After all, when people do kill people with guns, there is some reason (a causal chain) behind it and this reason is not simply that the person had a gun. Rather, they have the gun and use it for reasons (in the sense of there being causes).

In the case of the latest alleged shooter, there seems to be evidence of mental health issues, such as his allegedly telling the police about voices and attempts to beam messages to him with microwaves. He also had a police record that included “minor” gun incidents, such as shooting a coworker’s tire and discharging a firearm through his ceiling into the apartment above. Despite all this, he was still able to legally purchase a gun and even keep his security access to military bases.

Looking back at other shootings, some of them are similar in that the shooter had mental issues that were known but did not reach a level at which legal action could be taken. This, of course, suggests that changing the laws would be a potential solution. However, the obvious concern is that the majority of people who fall below the level at which legal action can be taken to deny them guns never engage in violence. I have written extensively about this before and hold to the same position, namely that denying people their rights requires more than just the mere possibility that they might do something.

It is interesting and disturbing to note that it is worth considering that our entire society is mentally deranged. This point was made quite some time ago by Emma Goldman in her essay on anarchism. She noted that we are like animals in captivity and our behavior is deranged by the conditions that are imposed on us by those who hold power. We face a society with grotesque inequalities, ethical problems, drug abuse (which is both a cause and effect), little social support and great stress. Most people who are ground down by this situation break down in non-violent ways, but it is hardly a shock that some people respond with violence. If this is the case, then the violence is a symptom of a greater disease and gun laws would fail to address the disease itself—although they could make gun violence less likely.

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Minimum Wage I: Arguments Against

Minimum Wage In Paraguay, one simple figure

Minimum Wage In Paraguay, one simple figure (Photo credit: WageIndicator – Paulien Osse)

The United States government, like many other government, sets a minimum wage. This is the lowest (with some exceptions) that an employee can be paid per hour. There is considerable debate regarding the minimum wage ranging from disputes over the exact amount of the wage to arguments over whether there should be a minimum wage at all.

Some arguments over the minimum wage are grounded in concerns about economic facts. For example, there is some dispute about the economic impact of the minimum wage. Some contend that increasing it would increase inflation (which would presumably be bad) while some claim that increasing it would boost the economy by increasing spending. In terms of what should be done, these disputes fall nicely within the realm of consequentialism. That is, settling them involves sorting out the facts about the consequences. There would also be some moral aspects to the matter as well, such as sorting out the positive values and negative values based on who they impact and how.

Other arguments about the minimum wage are more ideological in nature and have minimum (or no) connection to matters of economic facts. These arguments tend to be philosophically interesting because of the strong connection to matters of morality.

One argument against the minimum wage is based on the notion that it causes a culture of dependency that interferes with the mobility of labor. The idea, at least as presented in various talking points in the more conservative media, is that a higher (or any) minimum wage would encourage people to simply stick with the minimum wage job rather than moving upwards in the economic hierarchy.

On the one hand, this has a certain appeal. If a person believes that she is earning enough and making a comfortable living, then she might very well be content to remain at that job.

On the other hand, there seem to be some rather obvious problems with this argument. First, unless the minimum wage were increased dramatically, it seems unlikely that anyone would be able to make a comfortable living on such a wage. It also seems unlikely that most people would be content to simply stop at the minimum wage job and refuse opportunities for better employment. People generally stick with minimum wage jobs because they cannot find a better job not because they think they are making quite enough. I would not claim that it is impossible for a person to live what he thinks is a comfortable life on minimum wage nor that a person might be content to just stick with such a job. However, such a person would be an unusual exception rather than one among a vast crowd.

Second, this sort of reasoning seems to be based on the problematic principle that it is necessary to pay people poorly in order to motivate them to move up the economic hierarchy. One problem with this principle is that it would warrant paying people poorly all the way up the economic ladder so as to allegedly motivate them. After all, if people are content to coast at minimum wage, then they would surely be willing to coast if the pay was better. This would thus seem to entail that only the topmost position in a hierarchy should not pay poorly since there would be nothing above that position and hence no need to motivate a person to move beyond it. Interestingly, this does seem to match the nature of CEO salaries—it is common for the CEO to make many times what lesser employees make. Since the number of topmost positions is rather limited, this would seem to be rather unfair. In fact, if this principle is pushed, it would seem to point towards having one position in total that has good pay—thus motivating everyone to attempt to get that one position.

Another problem with this principle is that it seems to be untrue. As a matter of fact, people do attempt to get higher paying jobs when they are available, even if their pay is not poor. People mostly seem to stick with a minimum wage job or a lower paying job because they cannot find one that pays better (there are, of course, other reasons).

As a final point, the idea that paying people to do work creates a culture of dependency seems to indicate the view that the workers are mooching or sponging off the employer. This is, obviously enough, absurd: the worker is getting paid for work done which is the exact opposite of mooching.

A second ideological argument is based on the notion of liberty and rights. The idea is that employers are having their liberty (or rights) violated by being forced by the state to pay a minimum wage.

This line of reasoning does have a certain appeal. After all, people (and corporations are the best sort of people) have rights to liberty and property. If the state tells employers that they must pay a certain wage, the employers are being denied their right to liberty via the coercive power of the state.

There are at least two obvious responses to this line of reasoning. The first is that workers are also people and hence would also have rights, including property rights to their labor. These rights can be used to argue for a minimum wage (or more)—after all, theft of labor would seem to still be theft.  The second is that being part of a society involves, as Locke and Hobbes argued, giving up some rights. While some employers would like the liberty to pay whatever they wanted (which might be nothing—slavery was and is rather popular), it makes sense that such complete freedom would not be consistent with society. Having a civil society, as Hobbes argued, does require the coercive power of the state. As such, the fact that the state is imposing on the liberty of the employer does not automatically entail that this coercion is wrong. The stale also imposes on the liberties of those who would like to steal and kill and these impositions are hardly wrong.

The obvious reply is to contend that while the state has a legitimate right to limit some liberties, this right does not extend to coercing job creators into paying at least a minimum wage. This cannot, of course, be simply assumed—what is needed is an argument that employers should have the liberty to pay as they please. Even if such a liberty is assumed, surely it would have at least some limit. At the very least, it would seem that an employer has to pay more than nothing. Then again, some might like to see slavery put back on the table. There is much more to be said about minimum wage and more essays will follow.

 

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Splitting Marriage: Civil Unions

English: A woman makes her support of her marr...

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In an earlier essay I argued in favor of splitting marriage and focused on the creation of theological unions. Each religious institution could define its own theological union in accord with its doctrines, thus allowing people to exercise their religious freedom. However, the theological union would have no legal status—thus allowing people to exercise their right to freedom from other peoples’ religions. Marriage as currently practiced does have numerous legal aspects that range from tax status to hospital visitation rights. On the assumption that these legal aspects are worth preserving, I propose a second type of marriage. At the risk of some confusion, it could be called a “civil union”—but I am not wed to this name. I am also open to the idea that some or even all of the legal aspects of marriage are not worth preserving and would certainly consider arguments to that effect.

A civil union of the sort I am proposing would actually cover a variety of legal relationships and would allow people various options. I base this on the idea that people should, in general, have the freedom to define their legal relationships in this context.

Those who prefer a more traditional approach could select the full traditional marriage civil union with all the legal obligations and rights that compose current marriage. In terms of who should be allowed to engage in such unions, the answer would seem to be that it is open to all adults who are legally capable of giving consent. Thus, this would exclude civil unions with turtles, corpses or goats.  The basis for this is the right of legally competent adults to enter into legal contracts. As I see it, the legal aspects of marriage (such as joint property, insurance coverage, and so on) are merely legal agreements that hold between adults and the sex of the individuals seems to be irrelevant. As such, same-sex civil unions would be just as legitimate as different-sex civil unions. People engage in business contracts with people who are of their same sex all the time and the legal aspects of marriage are rather similar to a business contract—most especially in matters of divorce.

In addition to the “standard package” based on traditional marriage, people could also create more personalized contracts of union. This would involve specifying the legal obligations and rights that define the union. In terms of why this should be allowed, it is absurd that the marriage merger is a one size fits all deal when any other contract can be custom made. As such, I propose that people can create contracts of union that would allow couples to specify the legal aspects of their civil union. While many of these would be drawn from the “standard package”, these could also include tailored specifications. For example, a contract of union might specify the division of property that will occur in the case of divorce. In fact, given the high divorce rate, such contracts would be rather sensible and would save considerable problems later on.

Given that the legal aspect of marriage are based on a contract, it seems reasonable that many of the rights and privileges should be open to people who are not in a union. For example, people should be able to designate the people who get to visit them in the hospital.

It might be contended that this approach to marriage fails to consider the role of religion in marriage. My obvious reply is that this is exactly right. The religious aspects of marriage should be made distinct from the legal aspects, which is why I proposed the religious union as well.

It might be objected that this contract view of marriage would sully the sacredness of marriage. This proposal would seem to reduce marriage to a legal contract and, of course, people might enter into such unions for impure reasons such as financial gain or to get a green card.

The easy and obvious reply to the sully objection is that marriage has already been well and thoroughly sullied. Hence, replacing traditional marriage with a civil union would hardly sully it. To use an analogy, adding a bit more dirt to a mud puddle is not going to sully its purity, for it has none.

In regards to the impure reasons, it is obviously the case that people engage in traditional marriage for such impure reasons. Thus, this would make civil unions no worse than traditional marriage.

As a final point, it can be argued that marriage is defined by the state to encourage a certain type of marriage and in accord with traditional rights. The easy reply to this is that the state can still encourage marriage types by specifying the contracts and that an appeal to tradition is a mere fallacy.

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Facebook, Privacy & Employers

Česky: Logo Facebooku English: Facebook logo E...

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There has been a minor controversy regarding employers requiring (or “requesting”) job candidates and employees to hand over access to their Facebook accounts. Those favoring this argue that employers need to know certain things about job candidates and employees and hence this is justified. Those opposed to it tend to argue that this violates privacy rights.

On the one hand, it can be argued that employers should be allowed such access. After all, Facebook accounts can provide a wealth of information about employees and candidates that would be very useful to the employer and this usefulness could be taken as justifying the intrusion. For example, a company could learn a great deal about a candidate whose posts show that he is a racist. As another example, a company could learn important information about an employee who posts photos of herself wasting time at work and stealing office supplies.

In cases in which the job involves matters of security (such as law enforcement), then having such access would seem to be even more reasonable. After all, a prison hiring guards would certainly want to know whether a candidate had photos of himself flashing gang signs.

On the other hand, there seem to be some rather good reasons against granting such access to employers. The most obvious is that the mere fact that the information would be useful to the employers does not entail that they have a right to access it. After all, access to candidates’ and employees’ personal conversations, journals, diaries, real-world photo albums, personal phone records, home, friends and so on would be very useful to employers. However, it would seem absurd to say, for example, that my university has a right to go through my house looking for information that might be useful to it. As such, it would seem that the employer’s need to know is not overriding. Naturally, there can be legitimate exceptions, such as during legal action. If I were, for example, stealing computers from my university, then the police would certainly have a right to search my house for the stolen goods-once they got a warrant, of course.

It might be objected that Facebook is not the same as these things. After all, it is online and it is intended to be a social network. As such, it is acceptable for employers to have access to these accounts. In reply, being online and being a social network does not entail a right to access. After all, personal email is online, but this hardly gives my employer the right to read my personal email.  The fact that Facebook includes personal messaging makes this a rather exact analogy. In regards to the social network access, Facebook explicitly allows users to control access-just as people can control access in the actual world. My employer does not have the right to listen in when I am running with friends or to send an agent to observe my gaming. As such,  they should not have these rights in regards to Facebook. In short, given that employers are not entitled to access to such information avenues in the real world it would follow that they are not entitled to that information merely because it is on Facebook. There is simply no relevant difference between the two and the burden of proof rests on those who would claim otherwise.

It might be countered that people do have a choice whether or not to hand over access. After all, they could refuse and not get the job or refuse and be fired. However, this is rather obviously not much of a choice. After all, a candidate or employer who is asked to trade sexual favors for a job has the choice to refuse. However, it would be absurd to say that this entails that employers can thus request sexual favors. Likewise, employers would not seem to have the right to require candidates and employees to hand over access to their Facebook accounts.

It might be countered that people who have nothing to hid have nothing to worry about. This is, of course, a fundamentally flawed reply. The mere fact that I have nothing to hide does not entail in any way that my employee should thus have the right to have access to my information. After all, I am in pretty good shape, so I have nothing to hide under my clothes. This does not entail that my employer gets to see me showering. I also have nothing to hide in my email or my house, but this hardly entails that my employer should be able to just read through my emails or wander about in my house at will.

A somewhat interesting point worth considering is that employers screened candidates and kept an eye on employees long before Facebook existed. While Facebook does provide one-stop privacy violation shopping, it would seem that the methods used before Facebook should suffice. There is also the matter of people who do not have Facebook accounts. Should they be required to get accounts so that their employers can check them?

As a final point, the state usually has to go through a legal process to get into private information (although the war on terror has changed this). As such, it might seem rather odd that employers can act with greater power than the state. Interestingly, in the United States employers often seem to have more power over peoples’ lives than the state-and this is often endorsed by the same folks who claim to be for liberty. However, we should be just as much on guard against impositions against liberty by employers as by the state.

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Contraception, Once Again

English: Picture Of Ortho Tri-Cyclen oral cont...

Could this get you fired?

While wars rage on and the economy continues to limp along for the working class, considerable attention is still focused on contraception. On the one hand, this can be seen as a mere distraction from what should be regarded as more important matters. On the other hand, it can be regarded as a fundamental struggle over rights.

One key conservative talking point regarding contraception coverage is that the real issue is whether or not the state has the right to require health insurance providers to cover contraception. This, of course, falls under the more general issues of whether or not the state has the right to compel health insurance providers to cover anything at all. Naturally, this falls under the very general topic of the legitimate limit of the state’s compulsive powers.

Since I just wrapped up discussing John Locke in my Modern Philosophy class, my inclination is to say that the state’s legitimate purpose is the good of the people and it is limited in what it should do on the basis of the rights to life, liberty and property. As might be imagined, this general guide is not very helpful in this matter. After all, it can be effectively argued that compelling such coverage would be for the good of the people and it can also be effectively argued that doing so would be an imposition on the liberty of the providers.  As in most such cases, my inclination is to take the stock approach of weighing the good of the imposition against the badness of said imposition. For example, some people argue that the state should have the right to use its compulsive power to ensure that a person can only marry one other person (at a time) and that the other person must be of the opposite sex. In supporting such a view, the usual argument (apart from the appeals to religion and tradition) is that same sex marriage and polygamy are harmful to society. As such, the liberty to marry as one pleases must be taken away using the compulsive power of the state. Interestingly, many of the folks who are opposed to compelling  contraceptive coverage are in favor of using the compulsive power of the state in the domain of marriage. As such, they apparently do not have a principled objection against the state compelling people in regards to their moral beliefs. Rather, their view seems to be that as long as the state is compelling the right people, then such compulsion is fine. Of course, a person can be against contraception coverage and not be against, for example, the state using is compulsory power to impose a specific moral view in regards to marriage. In fact, one way to argue against the compulsion of contraceptive coverage is to argue against state compulsion in all matters other than those that involve harming others. So, for example, a person could be consistently against the state compelling a specific religious/ethical view of marriage and against the state compelling the coverage of contraception.

In regards to the matter of coverage, I am willing to accept (and in fact insist on) the principle that the burden of the proof is on the state in regards to compelling such coverage. That is, it is up to the state to show that such coverage should be compelled by law. This is a general principle that I accept, mainly on the assumption that there is a presumption in favor of liberty.

One standard way to argue for the legitimacy of state compulsion is to show that something is harmful (generally to others rather than just to oneself) and thus the state, under its legitimate role as protector of the life, liberty and property of the citizens, has the right to compel. This approach seems quite reasonable and is used to justify such things as the state compelling people to not murder, rape, or steal. As should be clear, this approach does not justify compelling coverage. After all, it is not preventing someone from wrongfully inflicting harm on another. Of course, this is a rather minimalist view of the state and one that only the most ardent libertarians seem to hold.

Another standard way to argue for the legitimacy of state compulsion is to show that compelling it creates a public good that warrants the imposition on liberty. For example, drafting people in times of war can be justified on the grounds that the public good requires such service. As another example, the compelled  paying of taxes to provide for roads, police, defense, fire departments, schools, bridges, and so on is justified on the grounds that this serves the general welfare and the common good. John Locke argues for the state using its power to serve the general good and, of course, American government is supposed to have a legitimate role in providing for the general welfare. In general, it seems fair to say that the idea that the state should compel people to act for the general good only seems odd when it is proposed that the state compel something that a person does not like (like contraceptive coverage). When the state is compelling people to do what someone wants, it generally seems perfectly reasonable to that person. However, it would be rather nice for folks to have a consistent general principle regarding under what conditions the state can compel (other than “in cases in which the state is doing what I want”).

As with all conflicts between liberty and the general good, one key part of the dispute is whether or not the imposition on liberty is warranted by the gain to the public good. For example, compelling me to pay my taxes is warranted by the fact that my contribution is needed for the general good.

In the case of contraceptive coverage, the argument rests on the assumption that preventative care should be covered (this is already a matter of law, but naturally can be challenged on moral grounds) for the general good. If this assumption is accepted, then the question that remains is factual: should contraception be considered preventative care? The experts at the bipartisan  Institute of Medicine have claimed that this is the case. Given their expertise, I am inclined to accept their opinion over that of non-experts. As such, it would seem that contraception should thus be covered.

Of course, it can be countered that the coverage preventative care should not be compelled by the state and that the insurance providers should be free to cover or not cover what they wish.

This does, of course, have a certain appeal. No doubt folks in all industries feel imposed on by the state compelling them in regards to what they can do or not do. For example, those in the food industry probably are not thrilled that the state imposes restrictions on what they can sell as meat and that they are required to divulge the contents of their products to the consumers. However, these compulsions are justified by an appeal to the common good. Likewise, the imposition of contraceptive coverage can be warranted on similar grounds. After all, such coverage is claimed to have numerous benefits for the people covered as well as the general public (such as lowering the number of unwanted pregnancies and all that entails).

It might be countered that the coverage of contraception violates the ethics of some employers (such as the Catholic Church) and thus contraceptive coverage is a very special case. In fact, Arizona is considering a bill that would seem to allow employers to fire employees for using contraception. In these cases, the argument is that this is a matter of religious liberty. As I have argued at length in other posts about this, I will not repeat my arguments here. I will, however, add that these cases are not clear cases of a cruel state imposing on the liberty a hapless church, insurance company or employer. Rather, there is also the rather important matter of the liberty of the employees and their rights.

There is, of course, a stock view that employees have no right to expect their employers to respect their rights or liberties as the state is supposed to respect them. On this view, our rights and liberties exist relative to the state and not relative to employers. However, I am inclined to follow Locke here and take the view that our rights are not merely against the state, but also against each other. As such, it is just as wrong for my employer to compel me in ways that violate my rights and liberty as it is for the state. At the very least, if the state lacks the right to compel them to provide coverage because they disagree, then they would seem to lack the right to compel their employees to conform to the ethics of their employer.

It might be countered that such rights are only for the powerful (churches and employers) and that the weaker folks (such as employees) must take it or leave it. That is, an employee who wants to work has to be willing to accept the moral imposition of his employer in this matter while his employer has a perfect right to not be imposed on in such a way by the state. If the employee doesn’t like that her employer  refuses to include coverage of contraception in the health care benefits, she can just go and find another job. If she cannot, then she will have to accept being unemployed or she must conform to the religion/morality of her employer.  This, of course, seems to be rather wrong. After all, it seems rather absurd to justify an imposition on liberty on the basis of an appeal to liberty. Of course, this is nothing new: in the pre-Civil War South people routinely argued that forcing the southern states to give up enslaving people would be a violation of their liberties.

In light of the above discussion, mandating the coverage of contraceptives does seem to be morally acceptable.

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Church & State II: Discrimination

English: Schopfheim: Catholic Church Deutsch: ...

In the United States, the American’s with Disabilities Act makes it illegal to discriminate against people based on their disabilities. Unless, apparently, the institution doing the discrimination is a church.

A disabled woman who was teaching at a religious school was fired and filed a claim under this act. The rather clever reply by the lawyers was to rely on the ministerial exception clause.

This clause was originally intended to grant religious groups the liberty to discriminate in their hiring (and firing) practices so as to allow them to act in accord with the doctrines of their faith.  To use the obvious example, the Catholic Church is allowed an exemption to practice gender discrimination based on its doctrine that only men can be priests.

On the face of it, it seems blindingly obvious that this exception was not intended to allow religious groups to simply fire people with impunity in regards to the anti-discrimination laws. While the application of the law is certainly a matter of interest, what I find more interesting is the exception itself.

On the one hand, this exception does have a certain appeal. After all, history shows that laws can be used to oppress or otherwise mistreat religious groups and one way to afford protection for religious freedom is to provide such “escape mechanisms” in laws that might be misused. Given that freedom of belief and freedom from oppression seem to be legitimate and worthwhile freedoms, this sort of exception has some merit.

On the other hand, there is the obvious concern that the mere fact that something is a religious belief should not be grounds for allowing an exception to the general law. In the case of this specific law, if churches can simply apply the exception when they fire people, churches would be effectively immune to anti-discrimination laws. This would allow them the freedom to engage in actions that seem to clearly be immoral (such as firing people on the basis of age, gender, sexual orientation, ethnicity or any other quality) and otherwise illegal merely because they are religious groups.

It might be countered that religious groups must have the liberty to hire and fire as they wish, otherwise religious freedom is in danger.  However, handing religious groups a license to discriminate hardly seems to be a necessary step in preserving religious liberty and, as such, this sort of broad exception seems to be morally unjustified.

There is also the obvious concern that while the right to religious freedom is worth considering, there are other rights as well. In the case of hiring and firing, it would seem that people have the moral (and legal) right not to be discriminated against and it does not seem obvious that the right to religious freedom should simply trump other rights.

For example, suppose a devout group of Thugee established a church of Kali in the United States and argued that religious freedom gave them the right to be exempt from the laws forbidding murder and theft. This, obviously enough, would be regarded as absurd. After all, the right not to be robbed and murdered outweighs the right of religious freedom.

As another example, suppose that a religious group that practiced polygamy claimed an exception based on religious views. This would, obviously enough, be denied. In fact, polygamy is illegal (although apparently sometimes tolerated). As such, religious freedom would once again not trump the law.

As a third example, suppose that a religious group wanted to hire or fire people in ways that violated  anti-discrimination laws. This, oddly enough, seems to be okay. However, the obvious question must be asked: why should religious groups be given an exception here? The answer seems to be that they should not, unless we wish to allow them the other exceptions.

Another point of concern is, obviously enough, why religious groups should get such exceptions. After all, there are other groups that hold discriminatory views (racist groups, for example) and it would seem to be, well, discrimination not to allow these groups to discriminate based on their beliefs. After all, these people are no doubt as sincere and devoted in their beliefs as religious folk and it seems rather difficult to prove that their is a magical something about religious beliefs that entitle religious groups to special exemptions that are denied to other groups.

Of course, if a religious group could prove that they have got it right when it comes to their desired exemptions, then that would be another matter. For example, if Catholics could prove that just as only women can biologically be mothers only men can be metaphysically priests, then they would be justly exempt from the law regarding gender discrimination in the case of priests.

Doing this should be easy enough. When a religious group claims a special exemption, all that needs to be done is for their deity to show up and sign the appropriate form after establishing his/her/its divine identity. For the religious groups who have the true view, this should present no problem. Naturally, groups whose deity fails to make an appearance (or that fails to send a suitably divine or infernal non-human agent, such as an angel) must be regarded as having gotten things wrong and thus would not be entitled to an exception. After all, a group that cannot prove that its  exemption from the law is justified should not be allowed that exemption. Obviously, referring to made up beliefs does not count as justification.

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God’s Vigilantes

The Vigilantes seal from the cover of Fifes an...

In anticipation of teaching my Modern philosophy class in the upcoming spring semester, I have been perusing my notes. Since I recently did a post on God and punishment, re-reading Locke got me thinking about this matter once again.

Locke, like other political thinkers of his age, made use of the state of nature in his consideration of rights and authority. Roughly put, the state of nature is a situation in which there is no political authority: no politicians, no police, no judges, no man-made laws and so on. In short, there is no artificial society-just people existing in a natural state.

Thomas Hobbes also envisioned such a state, but he saw this as  a state of perpetual war. Since many of my students play video games, I always illustrate Hobbes as presenting a “death match” view of the state of nature: everyone against everyone, whatever you can grab is yours (until someone kills you and takes it), and so forth.  Locke, however, envisioned a nicer state in which people possessed natural rights to life, liberty and property.

Locke also contended that there is a law of nature that should be observed and that this law “wills the peace and preservation of all mankind.” Locke also noted the obvious: if there is no one to execute or enforce the law of nature, this law would be in vain.

To solve this problem, Locke claimed that in the state of nature everyone has the right to execute the law of nature by punishing wrongdoers who violate the right to life, liberty or property.  Locke, of course, grounds these rights on God. Our right to life rests on his view that we are God’s property and our right to property rests, in part, on God’s gift of the world to us. Put a bit simply, God is the legislator of the law of nature and the author of our rights. However, given what Locke claims, God respects the distinction between the executive and the legislative in that He does not enforce the law of nature nor does He act to prevent or punish (on earth) the violation of rights. He does not even dispatch angels to act as divine police. As such, on Locke’s view the state of nature is governed by divine law but God does deploy any enforcers.

In human societies when laws exist but there are no official enforcers, people sometimes turn to vigilantism. That is, people take the law into their own hands. In human societies, this practice is generally frowned upon-at least when law enforcement does exist. It is, as might be imagined, tolerated more (or even encouraged) when official law enforcement is lacking.

Given that in the state of nature there is law (the law of nature) but no official enforcers, what Locke is arguing for is vigilantism. In short, he calls upon people to serve as God’s vigilantes. Naturally, it might be wondered why God would need vigilantes rather than having official law enforcement in operation. After all, God surely cannot lack the funding or personnel to provide adequate policing. Given that He supposedly created the universe and all its contents, surely He could create a divine police force to supervise us here on earth. This force would not, of course, impede our free will anymore than our own police forces do: people are always free to chose to do wrong-they just get punished if they get caught and convicted.

As far as the view that God does not punish and hence does not need police , given what most faiths claim, God has no compunction against punishing people. He just seems rather reluctant to do so when people are watching.

It might be argued that God has deployed a police force, namely us. We are, of course, also the criminal element and the judges as well. However, this seems a rather odd way of doing things. Consider the following analogy: imagine a federation or empire with unlimited resources that is engaged in colonization. The way it colonizes is that it just dumps people on a habitable world, but provides them with no technology, no police, no education and so on. While this would make some sense for a poor empire that cannot afford proper colonization efforts, this would seem absurd for such a wealthy empire.

In the case of God, it seems absurd that He would just dump us on a planet and have us “go to it” on our own with no support or police.  This hypothesis seems, on might suspect, more absurd than the hypothesis that humans are the result of a seriously lame (or badly failed) colonization attempt by a space empire. After all, to say that we are ruled over by a God who makes rules, but provides no police or judges here on earth seems rather like saying that we are ruled over by a space empire that laid down our laws, but provides no police, judges or any contact with us.

This analogy also provides the obvious response to the claim that God punishes people in the afterlife. Imagine if someone claimed that we are part of a space empire and that just before people appear to die they are whisked away by transporters and their bodies replaced with duplicates. The supposedly dead people are then brought to the Court of the Space Empire and then tried by Space Lawyers before the Space Judges. If they are found guilty of crimes, they are cast into Space Hell to be punished. If they are found to be innocent, they are transported to Space Heaven and rewarded. Naturally, we are all really immortal-we just seem to die when we are transported away and replaced by a fake corpse (or ashes or whatever).

Just as we have every reason to think that the space empire story is just bad science fiction, it would seem that we should think that the story about God is just a bad fantasy story.

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Liberate the Corporations?

English: The Bill of Rights, the first ten ame...

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In the United States, corporations are considered persons and hence it was ruled that they are entitled to 1st Amendment rights, specifically freedom of speech. While I have argued in other posts that corporations are not persons, I have also played with the idea of accepting corporations as people and seeing where this leads.

Now, if it is assumed that corporations are persons and are thus entitled to 1st Amendment rights (at least in the United States) it would certainly seem to follow that they are entitled to all the rights of persons. Or, at the very least, the other constitutional rights.

Corporations can, of course, be owned. In fact, common stock is bought and sold as a matter of routine business and provides an ownership share in a corporation. Since corporations are people, this means that people are being allowed to legally own other people. Owning another person is, of course, slavery. While slavery was legal at one time in the United States, the 13th amendment is rather clear on this matter:

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Now, if corporations are entitled to 1st amendment rights because they are people, it follows that they must also be entitled to 13th amendment rights. That is, corporations have a right not to be owned by other people. Thus, corporations must be set free from their owners and all such ownership must be declared null and void.

It could, of course, be argued that this is absurd. I agree-but this conclusion follows directly from the same logic used to argue that corporations are entitled to 1st amendment rights. So, if it is absurd for corporations to have 13th amendment rights it follows that it is equally absurd for them to have 1st amendment rights.

It could, of course, be argued that corporations are special sorts of people and are such that they do get 1st amendment rights (that is, they can engage in unlimited spending in politics) but they do not get certain other rights, such as not being slaves. After all, the constitution also includes the following:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

The “other persons” were, of course, slaves. Perhaps corporations can be considered a certain fraction of a person in regards not to representation but to rights. So, they get the all important right to spend money in politics on the basis of being persons while being denied the right not to be owned as slaves. I am not sure what the percentage would be or how this would work out, but I am sure that a clever lawyer could make it happen.

In fact, it  could be argued that enslaving persons is just a return to an old American tradition-only now we are enslaving corporation-Americans rather than African-Americans. This is not to trivialize the brutal treatment of those toiling under the lash of slavers, but to make the point that it is absurd to think of corporations as people.  If it is not absurd and corporations are people, I demand that the corporations be set free!

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Do we need laws banning polygamy?

This is the hot topic for the week, following the judgment of a Canadian court upholding a ban on polygamous marriages.

Here are two online articles criticising the outcome of the case: one by Kate Heartfield, writing for The Province; the other by Stephanie Zvan in a post on her blog at freethoughtblogs.com.

I have a lot of sympathy for both of these pieces. That’s not to say that the case is wrongly decided as a matter of law – I think that’s quite a difficult question, and I’d like to think about it further. In particular, I would like to – *sigh* – read the 300+ page judgment in its entirety (does anyone have a link for it?).

One interesting issue for legal theorists is this: what if a statute was initially enacted to achieve a purpose that was in breach of such concepts as freedom of religion (which might have constitutional protection), but is now, generations later, best rationalised on some other, seemingly legitimate, basis? Should we now see the statute as serving a legitimate secular purpose? Perhaps … but it’s not just obvious. What if the constitutional protection of freedom of religion came along after the statute was enacted? Does that make a difference? I don’t see a clear philosophical answer to questions like that. Maybe it’s just a policy question. I’m open to hearing some views.

In any event, public policy on this issue in Canada will now be in a mess. It’s clear that the state won’t register polyamorous relationships (polygynous, polyandrous, or more complicated) as marriages. I could agree with this – in fact, I argue for exactly this in Freedom of Religion and the Secular State (though not with any great enthusiasm … see for yourself if you don’t mind shelling out).

But that doesn’t mean that all such relationships are prohibited. You’d think it might end there, in fact: in Canada, polyamorous relationships are not prohibited, but nor are they registrable as marriages with whatever social and legal benefits that might entail. Full-stop. I could go along with that. But it seems that there is going to be a middle category of relationships that are actually prohibited, if they show sufficiently marriage-like properties – perhaps including extra-legal recognition as marriage through a religious ceremony. If so, that is just a mess. I don’t necessarily mind the state deciding what relationships it will extend its blessing – and certain legal privileges – to. But I don’t want it getting into the bedrooms of consenting adults with criminal bans on their private erotic arrangements, for which they are asking for no particular privileges from the state.

We should try to avoid dogma … especially if we haven’t read a legal judgment in its entirety, so as to see the full argument. I’d like to know more about the judge’s reasoning. But at the moment, I’m very sympathetic to Heartfield and Zvan.

What do you think?