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Guns & Negligence

Remington Arms

After each mass shooting in America, there is a push to do something about gun violence. After the slaughter at Sandy Hook Elementary School, some family members of the victims brought a lawsuit against Remington Arms. Remington manufactured the Bushmaster rifle used by the shooter. The lawsuit also includes Camfour (a firearm distributor) and Riverview Gun Sales (which sold the gun).

On the face of it, the case would seem to have no legal merit—the main reason being the 2005 Protection of Lawful Commerce in Arms Act, a 2005 federal law. This law serves as a protection for liability in regards to the legal sales of firearms. While what a law means amounts to the opinions of the adjudicators and enforcers, there would seem to be little grounds for a lawsuit in this case: a legal product, the Bushmaster, was manufactured, distributed and sold in accord with the laws. The only criminal activity was on the part of the shooter.

Interestingly, the case seems to be going forward. The attorney for the victims’ families, Joshua Koskoff, has contended that there is a legal foundation for the case. To be specific, he claims that the “negligent entrustment” exception of the Protection of Lawful Commerce in Arms Act and the Connecticut Unfair Trade Practices Act provide the opening needed.

One clear problem with using the negligent entrustment exception is that it seems to have been clearly intended for cases in which a gun is sold to a person who is threatening to do harm to others or visibly intoxicated. The situation in question does not meet this condition: the person who legally purchased the weapon was neither intoxicated nor threatening others.

Koskoff is taking an intriguing approach to the matter. He is not claiming that the person who bought the weapon was intoxicated or threatening; instead he is trying a rather different tactic.

His line of reasoning begins with the assertion that the semiautomatic AR-15 type rifles (the Bushmaster is one specific version) are essentially the same as the burst fire M-16 military rifle. His next step was to assert that, “It was Remington’s choice to entrust the most notorious military American killing machine to the public and to continue doing so in the face of mounting evidence of its association with mass murder of innocent civilians.”

One way to look at the argument is that Remington and the others were negligent because they were well aware that these weapons are dangerous and, more specifically, that they are linked to mass shootings. The obvious concern with this sort of reasoning is that it would seem to lay the foundation for a very broad principle of negligence. Under such a principle, anyone who manufactured or sold a product that has been used to create significant harm would be liable, to a degree, for that harm. Computer manufacturers could, for example, be held liable for hacking, phishing and other computer based crimes. As another example, alcohol manufacturers could be held accountable for crimes committed by drunks. As an extreme example, the manufacturers of the planes used on 9/11 could be taken as liable for the misuse of their products. This all seems absurd: manufacturers, distributors and sellers have little (or no) control over the use of their products and hence they cannot be held accountable. There are, of course exceptions—such as liability for selling drinks to someone already drunk. Obviously, the matter is quite different when people are harmed by defects or other problems with the products—the manufacturer is, for example, morally responsible for hazards presented by automobile ignitions that fail.  This leads to a second possible interpretation of the argument.

Koskoff could also be taking as advancing the notion that the negligence arose not simply because the product has been misused by some to create significant harm, but that the product is so dangerous that allowing it to be sold at all constitutes negligence. While this might seem similar to the first interpretation, they are actually quite different. To illustrate this, consider the case of the computer. Under the first principle (that of potential misuse), making and selling computers could be seen as negligent because they are often used in various crimes. Under this principle (that of inherent danger), making and selling computers would not be seen as negligent because they are not inherently harmful (this could, of course, be argued). One way to view the danger is in terms of a defective product. However, the concern is not that the guns are defective—rather, the worry is that they work all too well. A more plausible approach would be that the harm arises not from any defect in the product, but from the product itself when it is working properly and used correctly. On this view, manufacturing, distributing and selling AR-15 style weapons would be analogous to making, distributing a lighting system that illuminated an area via dangerous radiation: it would be working as designed and defect free, yet would be a harmful product. The challenge would be, of course, to show that the weapons are inherently harmful to a degree that to manufacture, distribute and sell them would constitute negligence.

While I am not a lawyer, I Koskoff faces an “upmountain” battle. Even if his argument worked and showed that such guns are inherently dangerous to the public, the fact remains that the gun used in the shooting was manufactured, distributed and sold legally. As such, while this sort of argument would support the assertion that it should be made illegal to manufacture, distribute and sell such weapons, it does not support the claim of legal negligence on the part of the defendants: they fulfilled all their legal obligations. Naturally, the question of whether they were morally negligent or not is another issue.

 

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Gun Control

Colt AR-15 Sporter SP1 Carbine

The June, 2016 mass shooting in Orlando has thrown gasoline on the political fire of gun control. While people on the left and right both agree that mass shootings should be prevented, they disagree about what steps should be taken to reduce the chances that another one will occur.

As would be expected, people on the left (and broad center) favor efforts focused on guns. While this is normally called “gun control”, this is a phrase that should no longer be used. This is not as a matter of duplicity, to present proposals under a false guise. Rather, this is because “gun control” has become so emotionally charged that the use of the phrase interferes with a rational discussion of proposals. If a proposal is labeled as “gun control”, this will tend to trigger immediate opposition from people who might otherwise support a specific proposal, such as one aimed precisely at preventing criminals and potential terrorists from acquiring guns.

Coming up with a new phrase might be problematic. “Gun safety” is already taken and deals with the safe handling of weapons. “Gun regulation” is a possibility, but “regulation” has become an emotional trigger word as well. The phrase should certainly not be a euphemism or sugar coated—doing so would certainly open the usage up to a charge of duplicity. Since I do not have a good enough phrase, I will continue to use the loaded “gun control” and hope that the reader is not too influenced by the connotation of the phrase.

Positions on gun control are largely set by emotions rather than a logical analysis of the matter. In my case, I am emotionally pro-gun. This is because, as a boy in Maine, I grew up with guns. All my gun experiences are positive: hunting with my dad and target shooting with friends. I am well aware that guns are lethal, but I have no more fear of guns than I have of other lethal machines, such as automobiles and table saws. No close friend or relative has been a victim of gun violence. Fortunately, I have enough empathy that I can feel for people who loath guns because of some awful experience. But, as with all complicated problems, one cannot feel a way to a solution. This requires rational thought.

Being a professional philosopher, I have some skill at considering the matter of gun control in rational terms. While there are many possible approaches to gun control, there are currently to main proposals. As is always the case, these proposals are arising from the specifics of the latest incident rather than a broad consideration of the general problem of gun violence.

The first type of proposal involves banning people on the no fly list from purchasing guns. This has been proposed because of the belief that the Orlando shooter was on this list and if this proposal had been enacted, then the shooting would have not taken place. On the face of it, this seems to make sense: people who are evaluated as too much of a threat to fly would seem to also be too much of a threat to buy guns. There are, however, a few problems with this proposal. The first is that the no fly list has been a mess, with people ending up on the list who should not be there. This can be addressed by improving the quality of list management—though there will always be mistakes. The second problem is a matter of rights. While there is no constitutional right to fly, there is the Second Amendment and banning a person from buying guns because they have been put on such a list is certainly problematic. It could be countered that felons and mentally incompetent people are denied the right to buy guns, so it is no more problematic to ban potential terrorists. The problem is, however, that a person can end up on the no fly list without going through much in the way of due process. That is, a basic constitutional right can be denied far too easily. This can, of course, be addressed by making the process of being on the list more robust or developing an alternative list with stricter requirements and far better management. There would still be the legitimate concern about denying people a right on the basis of suspicion of what they might do rather than as a response to what they have actually done. There is also the fact that the overwhelming majority of gun violence in the United States is committed by people who are not on that list. So, this proposal would have rather limited impact.

The second type of proposal is a return to the ban on assault weapons and high capacity clips (what a friend of mine calls “the ‘scary gun’ ban”). This proposal is based on the belief that if only the Orlando shooter had not been able to acquire a semiautomatic assault rifle and high capacity clips, then the casualties would have been far less.

For those not familiar with weapons, a semiautomatic fires one round with each pull of the trigger and will do so until the magazine is exhausted. Each shot “cocks” the gun again, allowing rapid fire. This is in contrast with, for example, a bolt, pump or lever action weapon. These weapons require the operator to manually move a round from the magazine to the chamber for each shot. These weapons fire considerably slower than semiautomatics, although a skilled user can still fire quite rapidly. There are also weapons that fire in bursts (firing a certain number of rounds with each trigger pull) and those that are fully automatic (firing for as long as the trigger is held and ammunition remains).

While many people believe otherwise, it is often perfectly legal to buy an automatic weapon—a person just has to go through a fairly complicated process including a thorough background check. I know people who own such weapons—legally and above board. The strict process of acquisition and high cost of such weapons generally keeps them out of hands of most people. As such, this could serve as a model for placing stronger limitations on other weapons.

While many people fear what are called “assault rifles” because they look scary to them (merely firing one gave timid journalist Gersh Kuntzman PTSD), the appearance of a gun does not determine its lethality. The typical assault rifle fires a 5.56mm round (though some fire the 7.62mm round) and they are less powerful than the typical hunting rifle. This is not surprising: assault rifles were developed to kill medium sized mammals (humans) and many hunting rifles were designed to kill larger mammals (such as moose and bears). While assault rifles are generally not “high powered”, they do suffice to kill people.

Assault rifles are more of a threat than other rifles for two reasons. The first is that the assault rifle is semi-automatic, which allows a far more rapid rate of fire relative to lever, bolt and pump action weapons. The slower a person fires, the slower they kill—thus allowing a greater chance they can be stopped. However, there are also plenty of semiautomatic non-assault rifles, which leads to the second factor, magazine size. Assault rifles of the sort sold to civilians typically have 20 or 30 round magazines, while typical hunting rifle (non-assault) holds far less. Maine, for example, sets a legal magazine limit of 5 rounds (plus one in the chamber) for hunting rifles.

A ban on semiautomatic rifles sales could have an impact on mass shootings, provided that the shooter had to purchase the rifle after the ban and did not already have access to a semiautomatic weapon. While some hunters do prefer semiautomatic weapons, it is possible to hunt as effectively with pump, lever and bolt action weapons. When I went duck hunting, I used a pump shotgun (which I actually prefer, having seen semiautomatic shotguns jam from time to time) and for deer hunting I used a bolt action rifle.

The main impact of such a ban would be that shooters who have to acquire new weapons for their shooting would have weapons with a lower rate of fire. They could still kill many people, but the kill rate would be slower—thus the death toll should be lower in such cases.

A ban on high capacity clips would also have an impact on the kill rate of shooters who have to buy new clips for their mass shooting. If magazines were limited to 10 rounds, a shooter would need to reload more often and reloading time would afford a chance to stop the shooter.

Combining the two bans would mean that shooters who had to acquire new weapons for their mass shooting would be limited to low capacity, slower firing weapons. This could significantly reduce the death toll of future shootings.

As has been noted, these sorts of bans would only affect a shooter who had to acquire a new weapon or clips. Shooters who already have their weapons would not be impacted by the ban. As such, what would be needed would be to remove existing semiautomatic weapons and high capacity clips—something that seems politically impossible in the United States.

 

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Orlando & Terrorism

On June 12, 2016 fifty people died in an Orlando Nightclub. 49 of these were victims of the 50th, who has been identified as Omar Mateen. This is the latest and the largest mass shooting in the United States. As always happens in such cases, there are inquiries into motives and, most importantly, into how such a slaughter was able to take place.

Mr. Mateen, the alleged shooter, was a 29 year old American who worked for the G4S security company. It has been claimed that he committed domestic violence against his then wife (although no charges were apparently filed), that he spoke of his hatred of blacks, gays and Jews, and a coworker has alleged that he often spoke of wanting to kill people. He was investigated by the F.B.I. in 2013 and 2014 in regards to suspected connections to terrorism. These investigations failed to yield adequate evidence for action to be taken against him and he was able to legally purchase the weapons used in the attack.

This mass shooting, like others before it, give rise to an important epistemic question: how can we know when a person will become a mass shooter (or terrorist)? While it is certainly tempting to infer that expressions of hate and expressed desires to engage in violence are good indicators, they are not. A little reflection and a little time on the internet show that hate is abundant as are expressions of desires to engage in violence. The vast majority of these people never make the move from expression to mass shooting. As such, while this sort of behavior is an indicator, it is a very weak indicator. What would be needed would be clearer evidence that a person is preparing to go from thought to action.

It might be believed that signs of connection to terrorism (such as expressing support or having some personal ties to terrorists) are good indicators. While this is also tempting, there are many who express support of terror (be it for ISIS or for using terror against minorities, women, LGBT people, etc.) yet never escalate from expressing support to murdering. There are also people who have personal ties with terrorists who themselves never become terrorists—in fact, these people include some who condemn terrorism.  As such, what would be needed is clearer evidence that there will be a transition from support or connections to violent action.

It could be claimed that there was adequate evidence Mateen was going to become a shooter and the F.B.I. failed in its investigation. This is, of course, a factual matter and one that would be addressed by investigating the investigation. While some might be inclined to believe that the F.B.I was sloppy or incompetent, it seems quite likely that there simply was not enough evidence to justify taking action against him. As it stands, this seems to be the case, despite Mateen allegedly calling 911 to express his loyalty to ISIS (and a mishmash of other groups that actually oppose each other). While ISIS has been happy to claim Mateen’s expression of fealty, this seems to be an affiliation of opportunity: there is currently no evidence that ISIS directed the attack nor evidence that Mateen had any substantial prior connection with ISIS. As such, the best hypothesis at this time is that Mateen was seeking to transform a hateful mass murder to a hateful mass murder for a cause and that ISIS was once again happy for the gift of blood.

It could be asserted that action should be taken against people who might engage in a mass shooting or who might become terrorists. In the case of Mateen, it could be claimed that the F.B.I. should have acted against him even without adequate evidence. This is where the discussion switches from epistemology (what can be known) to morality (what should be done).

The matter of determining the level of warranted suspicion that justifies taking action against a person is a rather important moral concern. On the side of public safety, the stock argument is that by acting on a relative low threshold of warranted suspicion, the public is kept safer. This is a stock utilitarian argument in which the morality of an action is a matter of weighing the harms against the benefits. In the case of Mateen and others, the claim would be that if action had only been taken on the basis of the available evidence, then the murders might have been averted. As a specific example, if expressing hatred of the sort linked to mass shootings resulted in a person being legally banned from owning guns, then there would be less likelihood of a mass shooting occurring. As another example, if the state could detain people on the basis of limited evidence of connections to terrorists, then terrorist attacks would be less likely to occur because more possible terrorists would be locked away (perhaps without trial).

On the side of liberty, the stock argument is that acting on a relatively low threshold would violate rights and create more harm than safety. This is also a utilitarian argument; the difference being in the assessment of harms and benefits. For example, supporters of the Second Amendment such as the NRA would be quick to claim there would be terrible harms and dangers of being able to deny people their gun rights based on the mere expression of hatred or a mere suspicion a person is going to engage in a mass shooting.  In fact, the usual claims are being presented that the shooting could have been prevented or mitigated if only more people had guns.

As another example, those who support the idea of having to show guilt beyond a reasonable doubt would oppose such a low threshold of detention for suspicion that a person might engage in a mass shooting. These would tend to be people who respect the idea of the rule of law (though law can be made awful).

It can even be argued that such a low threshold policy would make the public less safe: the violation of rights and low-threshold detentions would create anger and resentment that would lead to more and not less harm. My own position is in opposition to a low threshold—the cost is not worth the gain (if any) of such an approach. In regards to the gun regulation debate that the murders have ignited (once again), I really have nothing new to say about guns—nor, does it seem, does anyone else.

 

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Trump Rhetoric: naming Insulting & Mocking

Listening to one of Trump’s speeches, I tried to remember when I had heard this style of rhetoric before. While negative rhetoric is a stock part of modern American politics, he had created a brand that stands out in its negative magnificence. My first thought was it reminded me a great deal of the incoherent hate spewing I recall from gaming on Xbox Live. Then I realized it matched much earlier memories, that of the bullying and name calling of junior high school and earlier. I realized then that Trump’s main rhetorical style was a more polished version of that deployed by angry children.

One tactic that most people should recall from their youth is that of name calling. Kids would call each other things like “Stinky Susan” or “Fat Fred” in order to mock and insult each other. As people grew up, their name calling and mockery tended to become more sophisticated—at least in terms of the vocabulary.

Trump, however, seems to instinctively grasp the appeal of schoolyard level name calling, insults and mockery. He gives his foes (and almost everyone gets to be a foe of Trump) names such as “crooked Hillary”, “Lying Ted Cruz”, “Goofy Elizabeth”, and “Crazy Bernie.”

While name calling has no logical force (it proves nothing), it can have considerable rhetorical force. One obvious intended effect is to persuade the audience that the person given the insulting name is thus “bad” or “failed” as Trump loves to say. Perhaps the most important effect is how it impacts status: giving someone an insulting name is, at the core, a power play about relative status. The insulting name is intended to lower the targets status (from Senator Ted Cruz to “lying Ted) and thus raise the relative status of the attacker. Trump has used this with great effect against foes such as “low energy George Bush” and “Little lightweight Marco Rubio.” While these men were both professional politicians, they never seemed to hit on an effective counter to this attack. Trying to engage Trump in a battle of naming, insults and mockery is rather like trying to out squeeze a python—so it is no wonder this did not work. Trying to elevate the battle to the usual political style of negative rhetoric also proved ineffective—Trump’s schoolyard bullying seems to have won the hearts of many Americans who were not inclined to accept a change of rhetorical venue. Thus, it is hardly surprising that Trump swept aside his Republican foes like a bully swats aside the smaller and weaker children. Trump won the status battle by playing the schoolyard status game with his usual skill. His opponents were playing politics as usual, which was the wrong game to play with a population largely tired of that game.

From a logical standpoint, no one should be convinced by name calling. It has, obviously enough, no function as evidence or reasons for a claim. Calling Elizabeth Warren “goofy” does nothing to refute her claims. As such, the defense against being swayed by name calling is to be aware of this, to think “that is an insulting name…that proves nothing.”

If one is the target of an insulting or mocking name calling, then the defense is a bit more challenging. This is because what tends to matter is how other people are influenced by the name calling. While it is tempting to think about “sticks and stones”, Trump has established that name calling can hurt—at least in terms of a person’s status. Which means it hurts a lot. We are, after all, status obsessed monkeys in pants.

One way to reply is to respond with crude name calling, insults and mockery. From a logical standpoint, this proves nothing. From a practical standpoint, the main question is whether or not it will work. Part of the concern is whether or not one can engage and “beat” the name caller using this tactic. That is, whether one can out-insult the person and lower his status in the eyes of the other primates. Another part of the concern is whether or not this is the right tactic to use in terms of getting the desired result. A person might, for example, get in good shots at the name caller, yet end up losing in the long term. As might be imagined, people vary in their ability to name call as well as the impact name calling will have on how they are perceived. People expect Trump to be vulgar and insulting, so he loses nothing with this tactic. While people tend to think Hillary Clinton is corrupt, they also expect her to have a much higher degree of class and professionalism than Trump: playing his game would be a loss for her, even if she “won.”

Another way to reply is with more sophisticated name calling, insults and mockery. This, of course, is still logically empty—but can be combined with actual arguments. Hillary Clinton, for example, presented a speech aimed at mocking Trump. While she used the same basic tactic as Trump, trying to lower his status, her attacks were far more refined. To use an analogy, Trump is a barbarian hacking away with a great axe, while Hillary is fencing. The goal is the same (kill the other person) but one is crude and the other rather more elegant. The question is, of course, which will work. In the case of the rhetorical battle, the outcome is decided by the audience—do American voters prefer the axe of Trump or the rapier of Hillary? Or neither?

It is also possible to engage name calling with logic and counter with actual arguments. While this can work with some people, those who are subject to logic would tend to already reject such tactics and those who are not so amendable to logic will be unaffected. In fact, they would probably regard the use of such a method as confirming the bestowed name. Aristotle was among the first to point out the weakness of logic as a persuasive device and nothing has proven him wrong.

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Trump & Authenticity

Donald Trump has managed to relentlessly prove the political pundits wrong. While the idea of Trump in the White House was once an absurd joke, each passing day makes it ever more likely that America will fall under the Trumpocracy.

Given that Trump lacks the experience and skills that are usually expected in a presidential candidate, it might be wondered how he is doing so well. When his supporters are asked about their reasons, they typically assert that Trump “tells it like it is”, that he is not politically correct and that he is “authentic.”

Trump’s remarks do clearly establish that he is not politically correct—at least from the standpoint of the left. Trump does, however, go beyond merely not being politically correct and his rhetoric enters into the realms of xenophobia and misogyny. While I am fine with a person not being political correct, regarding his crude and vulgar xenophobia and misogyny as appealing seems to be a mark of character flaws. But, it cannot be denied that this is what some people really like. While it would be unfair to claim that supporting Trump is equivalent to endorsing xenophobia and misogyny, to support Trump is to support his professed values.

The claim that Trump “tells it like it is” is both false and absurd. Trump tells it like it is not, as the Politifact evaluation of his claims attests. Those who support Trump might honestly believe his untruths (as Trump himself might) and they can sincerely claim they back him because he “tells it as they think it is.” However, voters should at least make some minimal effort to check on the truth of Trump’s claims. That said, truth seems to matter very little in political support—perhaps because the system generally provides voters with a choice between untruths.

In order to determine whether or not Trump is authentic, I need to work out a rough account of authenticity in politics. Part of being authentic is a matter of not having certain qualities: not being scripted, not presenting an act, and not saying what one thinks the audience wants to hear. In terms of the positive qualities, authenticity presenting one’s genuine self and saying what one really believes.

It might be thought that Trump’s unrelenting untruths would disqualify him from being authentic. However, authenticity is distinct from saying true things. Authenticity just requires that a person says what she believes, not that she say what is true. This is analogous to honesty: being honest does not entail that a person tells the truth. It entails that the person tells what they believe to be the truth. A dishonest person is not someone who says untrue things—it is someone who says things they believe to be untrue.

Interestingly, there could be a paradox of authenticity. Imagine, if you will, a person whose genuine self is a scripted self and whose views are those that the audience wants to hear at that moment. This would be a person whose authentic self is unauthentic. It could, of course, be argued that there is no paradox: the person would just be unauthentic because she would lack a genuine self and genuine views. It can also be argued that no such person exists, so there is no real paradox. In any case, it is time to return to discussing Trump.

With the rough account of authenticity in hand, the next step is considering the sort of empirical data that would confirm of disprove a person’s authenticity. Since authenticity is mainly a matter of the presented self matching the genuine self, this runs right into the classic philosophical problem of other minds: “how do I know what is going on in another person’s mind?” In the case of authenticity, the questions are “how do I know the presented persona is the real person?” and “how do I know that the person believes what they say?”

In the case of Trump, people point to the fact that he rambles and riffs when giving speeches as evidence that he is unscripted. They also point to the fact that his assertions are political incorrect and regarded by many as outrageous as evidence that he is saying what he really believes. The idea seems to be that if he was a scripted and inauthentic politician, he would be better organized and would be presenting the usual safe and pandering speeches of politicians.

While this does have a certain appeal, the riffing and rambling could be taken as evidence that he is just not well organized. His outrageous claims can also be taken as evidence of ignorance. It would be a mistake to accept disorganized ignorance as evidence of laudable authenticity. Then again, that might be his genuine self, thus making it authentic. A such, more is needed in the way of evidence.

One common way of looking for authenticity is to take consistency as evidence. The idea is that if a person sticks to a set of beliefs and acts in generally the same way in various circumstances, then this consistency reveals that those believes and actions are sincere. While this is certainly appealing, a smart inauthentic person (like a smart liar) could create a consistent false persona for the public.

In contrast, a person who shifts beliefs with alarming regularity and acts in very different ways depending on the audience is often regarded as being inauthentic because of this inconsistency. The inference is that the person is shifting because they are acting and pandering. While this is also appealing, a person could be sincerely inconsistent and an authentic panderer.

Trump has shifted his professed positions in his transformation to the Republican nominee and his former opponents and current critics have spent considerable time and energy making this point. As such, it is tempting to question Trump’s authenticity in regards to his professed positions. That said, a person can change and adopt new sincere beliefs.

Former presidential hopeful Ben Carson made the interesting claim that there are two Trumps: the on one stage and the one “who’s very cerebral, sits there and considers things carefully.” If Carson is right about this, the “authentic” Trump that appeals to the voters is, ironically, just an act. The Trump on stage is a persona and not his real self—which would hardly be surprising given that he is a master showman.

One reasonable reply to this is that professionals put on a persona when engaging in their professional activities and everyone changes how they behave depending on the audience. For example, I behave differently when I am teaching a class than when I am running with friends. As such, if such change means a person is unauthentic, most people are not authentic. Thus making the charge of authenticity less stinging.

However, there seems to be more to inauthenticity than merely changing behavior to match the social context. Rather, an inauthentic person is engaged in an intentional deception to get others to accept something the person is, in fact, not. This is something that actors do—and it is harmless and even laudable when it is done to amuse. However, when it is done with a different intent (such as deceiving voters so as to get elected), then it is neither harmless nor laudable. I suspect Trump is not authentic, but since I do not know the true Trump, I cannot say with certainty.

 

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Understanding & “An Open Letter to My White Colleagues”

The May 2016 issue of the NEA Higher Education Advocate features “An Open Letter to my White Colleagues” by Professor Dana Stachowiak. Since I have a genetic background that is a blend of Mohawk, French and English, I am not entirely sure if I am, in fact, white. However, I look white and I am routinely identified by others as white. As such, my social identity would seem to be white. Thus, the intended audience for the letter probably includes me. The letter provides a five-point guide to “sustainable anti-racist work.” While the entire letter is certainly worthy of assessment, I will focus this essay on the third point.

Professor Stachowiak asserts that whites should “Stop trying to understand how it [racism]feels or relate to it with a personal anecdote.  You are white; you will never ever know what it feels like to experience racism.”

This assertion about what whites can never ever know is a matter of what philosophers call epistemology, which is the study of knowledge. More specifically, it falls under the subject of the limits of knowledge. In this case, the assertion is that a person’s epistemic capabilities are limited and defined (at least in part) by their race. Interestingly, this sort of view is routinely accepted by racists—a stock racist view is that other races have limits on what they are capable of knowing and this is typically connected to alleged defects in their cognitive capabilities. I am not claiming that Stachowiak is a racist, just that she has presented a race-based epistemic principle that whites cannot, in virtue of their whiteness, know the experience of racism.

There are epistemic views that do rest on the idea of incommensurable experiences. One extreme version is that no one can know what it is like to be another being. Stachowiak is presenting a less extreme version, one that limits knowledge about a specific sort of experience to a certain set of people. This can be seen as an assertion about the social reality of the United States: American racism is, by its nature, aimed at non-whites. As such, whites can never experience the racism of being targeted for being non-white. To use an analogy, it could be asserted that a man could never know the experience of misogyny because he cannot be hated as a woman (presumably even if he disguised himself as a woman).

This view obviously also requires that there cannot be racism directed against whites (at least in the United States), otherwise whites could experience racism. At this point, most readers are probably thinking that whites can be subject to racism—they can be called racist names, treated poorly simply because they are white, subject to hatred simply because of their skin color and so on for all the apparent manifestations of racism. The usual reply to this sort of claim is that whites can be subject to bias or prejudice, but racism is such that it only applies to non-whites. This requires a definition of “racism” in which the behavior is part of a social system and is based on a power disparity. To illustrate, a black might call a white “cracker” and punch him in the face for being white. This would be prejudice. A white might call a black the n-word and punch him in the face for being black. This would be racism. The difference is that the United States social system provides whites, in general, with systematic power advantages over non-whites.

It might be wondered about specific institutions that are predominantly non-white. In such cases, a white person could be the one at the power disadvantage. The likely reply is that in the broader society the whites still have the power advantage. So, if a philosophy department at a mostly white university does not hire a person because she is black, that is racism. If a philosophy department at a predominantly black university does not hire a person because she is white, that is prejudice but not racism. Thus, with a certain definition of “racism” a white can never experience racism.

It might be asserted that since anyone can experience prejudice and bias in ways that match up with racism (like being attacked, insulted or not hired because of race) it follows that a white person could have an understanding of what it feels like to experience racism. For example, a white person who finds out she was not hired because she is white would seem to be able to understand what it feels like for a black person to not get hired because she is black. There are also white people who belong to groups that are systematically mistreated and subject to oppression—such as women. One might contend that a white woman who experiences sexism her whole life would be able to know what racism feels like, at least by analogy. However, it could be countered that she cannot—there is an insurmountable gulf between the sexism a white woman experiences and the racism a black person experiences that renders her incapable of understanding that experience.

While it is certainly true that a person cannot perfectly know the experience of others, normal human beings are actually quite good at empathy and understanding how others feel. Many moral theorists, such as David Hume, note the importance of sympathy in ethics. It is by trying to understand what others suffer that one develops sympathy and compassion. It is certainly reasonable to accept that perfect understanding is not possible. But, to use an example, a white person who knows what it is like to be beaten up and brutalized because he would rather read books than play football could use that experience to try to grasp what it feels like to be beaten up and brutalized just because one is black. Such a person, it would be expected, would be less likely to act in racist ways if they were able to feel sympathy based on their own experiences.

Another point worth considering is the moral method of reversing the situation, more commonly known as the Golden Rule. Using this method requires being able to have some understanding of what it is like to be in a situation (say being a victim of racism) so as to be able to reason that certain things are wrong. So, for example, a person who can consider what it would be like to be refused a job because of his color would presumably be less likely to engage in that wrongful action. Given the importance of sympathy and the Golden Rule, it seems that whites should not stop trying to understand—rather, they should try to understand more. This, of course, assumes that this would lead to more moral behavior. If not, then I would concede the matter of Professor Stachowiak.

In regards to the anecdotes, I am more inclined to agree with Stachowiak. Having taught at Florida A&M University for almost twenty-five years, I have lost count of the awkward anecdotes I have heard from well-meaning fellow whites trying to show that they understand racism. On the one hand, I do get what they intend when they are sincere—they are making an effort to understand racism within the context of their own experience. This is a natural thing for humans to do and can show that the person is really trying and does have laudable intentions. As such, to condemn such attempts seems unfair.

On the other hand, when a white person busts out an anecdote trying to compare a personal experience to racism I immediately think “oh no, do not do this.” This is usually because the anecdotes so often involve comparing some minor incident (like being called a name as a child) to racism. This is analogous to a person speaking to combat veterans and talking about how he was punched once on the playground. There is also the fact that such anecdotes are often used to say “I understand” and are then followed by clear evidence the person does not understand.  From a purely practical standpoint, I would certainly agree that whites should avoid the awkward anecdote.

 

 

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Nominations & Democracy

As the United States continues its ultra-marathon campaign season, the pundits speak relentlessly about the possibility of a brokered Republican convention and the inevitably victory of Hillary Clinton.

The Republican establishment is not at all pleased that Donald Trump has become the populist candidate. They wail because has harvested what they sowed and insist the wheat should go to the elite of their choice. The people should, as always, get the shaft. I mean, of course, the chaff. The current plan of the elite is for Cruz and Kasich to deny Trump the number of delegates he needs to secure the nomination and then have a desirable candidate selected at the convention. Trump has been expressing his dismay at this plan and his supporters have shared his orange rage.  Thus, Trump will almost certainly arrive at the convention with significantly more delegates than his rivals, yet he might lose the nomination because of the way the rules work.

In the case of Bernie Sanders, the Democratic establishment has anointed Hillary Clinton as the once and future candidate. As some critics have noted, many in the media have joined in the chorus and stick to the script which says that while Bernie has not been locked out, he has no chance at all of winning. Bernie supporters point to what they regard as the chicanery of the super-delegate system and are not pleased with the way the primary process works.

While Bernie is losing to Hillary, there is the concern that her winning is due to the rules of the party and not her popularity with the voters. As such, the populists are facing similar plights: they face being blocked by the rules of the parties which rule America.

The populists have raised a rather reasonable objection against the way the system works: the candidate with the most votes should become the nominee for the party. That is, as Trump points out, the way democracy is supposed to work.

Trump is right, but also wrong. He is right that the process should be democratic in a democracy. Otherwise, there is a mere half-democracy in which people can vote for anyone, provided that person is put forth by the ruling parties. As one of my undergraduate political science professors used to point out, the difference between the old Soviet system and the American system was one party—they had one, we have two.

Trump is wrong in that the parties are not democratic systems. That is, they are not part of the government and are, in fact, private organizations like corporations and unions. As such, they are free to make their own rules in regards to how the candidates are selected. Trump might well think that the parties are supposed to work like a democratic system—after all, the primaries do involve voting via the official voting machinery of the state. However, this is like having Exxon or GE decided to conduct its election process through the state—they could presumably make that happen, yet can obviously set their own rules and determine the outcome as they wish.

The parties do, of course, prefer to claim that they are following the will of the people and certainly want to avoid the appearance that the elections are actually settled in backroom deals. However, the parties remain private organizations and those that control the party decided how the process will work. If a party does break its rules, a candidate could presumably sue (one of Trump’s favorite past times)—but as long as the rules are properly followed, the only recourse of a candidate would be to appeal to the people.

When Hillary is crowned the candidate for the Democrats, I suspect Sanders will stand beside her throne. Trump, however, would be king by his own hand—if he is “robbed” of the nomination, he might decide to run on his own. This would be ideal for Hillary—her victory would be assured.

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Is the Republican Party Doomed?

Despite the predictions of the pundits, Trump has done exceptionally well in his bid for the Republican presidential nomination. This is despite concerted attacks against him by what remains of the Republican intelligentsia and millions of dollars spent to try to bring him down.

Trump has, quite obviously, polarized the Republican party and has exposed the chasm between the party base and the party elite. Because of these facts, some pundits have predicted that the party will be torn asunder by the upcoming election.

On the one hand, the arguments for the doom of the Republican party have a certain plausibility. As Trump has demonstrated, there really is a chasm between the base and the elites that seems to mirror the economic chasm in America. It is, of course, ironic that the gilded Trump is seen as the champion of the common man. The common woman, though, seems to have serious worries about Trump.

There is also the long standing tension between those who are Republicans because of their economic values and the social conservatives—the social conservatives seem to have figured out that while the establishment gladly takes their votes, they have generally failed to deliver on their promises to roll back the clock to a dreamtime 1950s world.

The Republican Party has also run up against the fact that it is still trying to serve the interests of straight, rich, old, white men in a time in which women, the young and non-whites matter a great deal politically. While this will not tear the party apart, it does serve (so some pundits claim) to keep the party from recruiting new blood to help keep it going. This, some claim, will cause the party to fade away—provided that it does not burn out first.

On the other hand, the Republican Party seems to be facing the chaos only at the level of national politics—specifically presidential politics. The Republicans have solid control of Congress and, at the local level, dominate 23 states (holding the governorship, state senate and state house). In contrast, the Democrats only dominate 7 states. This is as of March, 2016 and these numbers can change.

While it might be argued that the Republican dominance is through trickery and misdeeds in the form of gerrymandering, voter suppression and the corrupting hand of big money, the fact is that the Republicans are essentially running most of the country. This, one might argue, is good evidence that the party is not about to explode or tear itself apart. Rather, it is the sign of a party that has its act together—in contrast to the Democrats who seem to excel at losing.

Some, such as devoted Democrats, might contend that this is a false vitality—that the Republican party is driven by the energy of dying desperation and, like a wolverine, is fighting hardest just before its death. It might also be pointed out that trickery and misdeeds can only sustain the party for so long, that eventually the party will be overwhelmed by the vast volume of voters who are not Republicans.

The counter to this is to point out that even if the majority of people will not be Republicans, winning elections is not about who is in the majority of people. It is a matter of being the majority of voters. As such, Republicans could keep winning as long as they get enough of the fraction of people who bother to vote to vote Republican. This could go on for a long time, at least as long as most people eligible to vote do not do so.

Another counter is to accept the Republican claim that they are the true party of inclusion and that they have more to offer non-whites and women than the Democratic party has to offer. That is, that despite all the apparent hostility to women and minorities and all the associated laws do not reflect the real soul of party. This soul, they could argue, wants to lovingly embrace all voters who will vote Republican. Perhaps this is true. There are, after all, some excellent people who are Republicans.

It might be suspected that I hope that the Republican party will either burn out or fade away. Actually, this is not true. While I am, by default, a Democrat, I recognize the importance of having a competent and effective opposition party (or parties). In my personal life, I accept that I cannot and should not always get my way. While I do think I am right in my views, I also know that many of them are wrong—I just do not know which ones. That is why I value competent criticism that can expose where I am in error. Likewise, I value political opposition.

I also accept that even if I am right, this does not necessitate that I deserve to get my way all or even most of the time. One mark of being an adult is getting that other people have legitimate needs and interests that conflict with one’s own and this entails that compromise is something that must be accepted in certain matters. It is tempting to always try to get what I want, which is why opposition is important to ensure that others can also get what they need.

Because of these views, I hope that the Republican party can either get it together or, if that fails, split and form at least one effective and competent opposition party. Then again, perhaps the party does have it together—except for the Trump thing.

 

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Trump & Abortion

Abortion is a contentious matter in the United States and politicians must expect to answer questions about their position. As such, Trump should have been prepared when the questions turned to abortion during Chris Matthews interview of him on MSNBC.

While Trump has expressed a pro-choice position in the past, he told Matthews that he was now pro-life. When Matthews inquired about the legal implications of an abortion ban in terms of punishing women, Trump asserted that the “answer is that there has to be some form of punishment, yeah.” Since Trump has routinely been rewarded for talking tough and expressing misogynistic views, he was probably genuinely surprised when he experienced a broad backlash for his remarks—most especially from anti-abortion advocates.

In response to this backlash, Trump’s campaign released a statement saying: “If Congress were to pass legislation making abortion illegal and the federal courts upheld this legislation, or any state were permitted to ban abortion under state and federal law, the doctor or any other person performing this illegal act upon a woman would be held legally responsible, not the woman.”

Interestingly enough, many anti-abortion advocates hold to this view as well (at least in public statements): women should not be punished for getting illegal abortions and the punishment should be limited to the abortion provider.

While some might claim that Trump’s initial position was an expression of misogyny, his inference was certainly justified given the usual approach to illegal actions. If abortion was criminalized and crimes should be punished, then it would follow that a woman who chose to have an abortion should be punished. This is the case with other crimes.

To use an obvious analogy, if Sally hires Jean to kill Jack, then Sally has committed a crime and should be punished for her role in it. A just court would and should punish Sally for her role in this crime. It would be patently absurd for someone to say “If Congress were to pass legislation making murder illegal and the federal courts upheld this legislation, or any state were permitted to ban murder under state and federal law, the assassin or any other person performing this illegal act for a woman would be held legally responsible, not the woman.” As such, if abortion were a crime (which opponents often consider murder), then it follows that the woman should also be punished.

Another analogy is with illegal drugs. If Sally buys illegal cocaine from Jean, then Sally has also committed a crime and should be punished.  It would be ridiculous to say “If Congress were to pass legislation making cocaine illegal and the federal courts upheld this legislation, or any state were permitted to ban cocaine under state and federal law, the drug dealer or any other person performing this illegal act (providing cocaine) for a woman would be held legally responsible, not the woman.” Once again, if abortion were a crime, then the woman should also be punished.

Obviously, the analogies could continue through a multitude of crimes, thus showing that the position advocated by Trump and others is contrary to the usual workings of justice, namely that those participating in a crime are to be punished. That said, there is a way to hold to the position that the woman should not be punished and the abortion provider should.

Holding this position requires asserting that the woman lacks agency in the crime and is thus not responsible. One approach, which is not uncommon, is to argue that women in general lack agency. This sort of view was used to justify, for example, denying women the right to vote and treating them as property.

This approach would be analogous to that taken by some states in regards to child prostitution. Although prostitution is a crime, children lack the agency to consent to sexual relations and are thus not responsible for the crime. Instead, those providing or purchasing the sexual services are responsible for the crime. As such, they should be punished and the children should not.

While some might find this approach appealing, it is obviously problematic. One rather absurd implication is that denying that women have agency would give them this legal status across the board—thus undermining the possibility of fully holding women accountable for crimes they commit. There are, of course, so many other problems with this approach that it has no legitimate appeal.

Another option is to accept that while women have agency, they generally lack such agency when it comes to choosing to have an abortion. Or, rather, women do not truly choose to have abortions—they are coerced, tricked or beguiled into having them. If this were generally true, then the position that women should not be punished for illegal abortions while those performing them should be punished would be reasonable.

To use an analogy, if Jean kidnaped Sally and her daughter, then killed the daughter, Jean would be the criminal and Sally would be a victim. As such, Sally should obviously not be punished. The challenge is, of course, to show that abortion providers generally use coercion to compel women to get abortions against their will. This, however, seems contrary to the facts.

As another analogy, if Jean was able to beguile Sally into believing she was in terrible danger from Jane and only Jean could save her at that moment by killing Jane, then Sally should not be punished for agreeing to this. Likewise, if abortion providers beguile and trick women into having abortions that they would not have had without being under the mesmeric influence of the abortion providers, then women who have illegal abortions should not be punished. What would need to be shown is that abortion providers have such powers to beguile. This also seems unlikely.

It could be claimed that surely there are cases in which women are coerced or beguiled into having abortions against their will. This, I accept, probably does happen. I am also confident that people are also coerced or beguiled into committing other crimes. As with such cases, I would agree that the person who is forced or beguiled into participating in a crime should have any punishment reduced or eliminated based on the degree to which they lacked agency. Obviously enough, those that coerce or beguile people into crimes should be subject to punishment proportional to their contribution to the crime. This all assumes that the crimes are morally worthy of punishment—crime is a matter of law and there can be unjust laws.

Lest anyone be confused about my overall position, I would prefer that there were fewer abortions (as argued in another essay). But, I do accept that abortion is generally morally acceptable under the current social conditions. As such, I oppose banning abortion and certainly oppose punishing abortion providers or women who have abortions. My point is that those who wish to criminalize abortion need to accept that the punishment of women is entailed by this view. As such, the position that abortion is a crime and that abortion providers should be punished while women should not be punished for their role in the “crime” is an inconsistent and untenable position. This, naturally enough, is for cases in which abortion is not the result of coercion or deception.

 

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North Carolina’s Anti-Antidiscrimination Law

Apparently eager to do some serious damage to North Carolina’s reputation and economy, the state’s Republican controlled legislature passed “the bathroom bill” and the Republican governor signed it immediately. This law seems to have been in response to Charlotte, North Carolina passing a city ordinance extending legal protection for LGBT people and allowing transgender folks to use bathrooms based on their gender identity.

The “bathroom bill” makes it so that local governments cannot pass their own antidiscrimination laws—the state law, which is more restrictive than the Charlotte ordinance, trumps all local laws. The reason it is called the “bathroom bill” is that it has the effect of forbidding transgender people from using the bathroom that matches their gender identity. Instead, they must use the bathroom that matches the sex on their birth certificate. Interestingly enough, the law also precludes any local government from passing its own minimum wage laws—the minimum wage falls under the antidiscrimination law.

While the most plausible explanation for the law is prejudice against people who differ from the heterosexual norm, the proponents of the law obviously cannot make that the public reason for their support. Rather, there are two main reasons presented in defense of the law. The first is that the imposition of state control over local governments was an attempt to rein in “governmental overreach” on the part of Charlotte and other local governments.

There is a certain irony in Republicans passing a law that restricts the liberty of local governments—this is because the importance of local government and assertions about getting big government off the back of the people are stock talking points. However, many Republicans seem to be fine with local government only to the degree that the locals do what they want.

To be fair, there are legitimate issues here about the extent of the authority of local governments and the extent to which the state has the right to impose on local authorities. One approach is practical: having a hodgepodge of inconsistent laws across a state would be difficult for citizens and businesses—there are advantages to uniform, statewide laws. Another approach is a matter of ethics—the restrictions and liberties of laws should be the same across the state based on the principle of fairness. Of course, using a moral foundation for uniformity would require a moral assessment of the laws being imposed: having an unjust law imposed uniformly would be worse than a just law that was imposed in limited locations.

My own view is that antidiscrimination laws should be uniform but also just. As such, I do agree that the state (and federal government) should be setting these laws. But, these laws must be just. In the case of the North Carolina law, my view is that it is unjust because it codifies discrimination while forbidding local authorities from passing just laws. Hence, the state is in the wrong here. I now turn to the second justification for the law.

Proponents of the law contend that they do not support it from prejudice and that it does not discriminate. They claim that the law is needed in order to protect people, especially children, from being assaulted in bathrooms and locker rooms by transgender people.

On the face of it, the law does aim at meeting what I consider a basic justification of a restrictive law: it has the professed intent of protecting people from harm. This is an excellent justification for limiting liberty and is the principle that justifies, for example, forbidding companies from knowingly selling dangerous or defective products.

While the professed intent does matter, the proper assessment of a restrictive law aimed at preventing harm requires considering whether the harm in question justifies the restrictions being imposed.  In the case of the bathroom bill, the easy and obvious answer is that it does not. The reason is that there seems to be an exceptional lack of evidence that transgender people will present a danger to others if they are permitted to use bathrooms based on their gender identity.

While it is certainly not impossible for a transgender person to engage in such an attack, the statistical evidence is that there have been no attacks. There are currently numerous states and many cities that allow people to use facilities based on their gender identity—so there have been many opportunities for such attacks.

The obvious reply is to point to claims that such attacks (or at least sexual misconduct) have occurred, thus refuting the claim that transgender people are not a threat. The counter to this is to point to the fact that such claims tend to be mere urban myths and that the evidence shows that the myth of the transgender bathroom assault is just that, a myth.

It could be countered that while there is currently no evidence that allowing transgender people to use bathrooms based on their gender identity, an attack could happen and this possibility, however remote, justifies the law.

The easy and obvious response to this counter is that basing restrictive laws on the mere possibility that something bad might happen would be absurd. This principle would warrant incredibly restrictive laws across the board and would also warrant violating most, if not all, rights. For example, men might attack women on hiking trails, so trails must be restricted to one gender to avoid the possibility of attack. As another example, a car might be used in vehicular homicide, therefore people should be forbidden from owning cars. Naturally, if it could be shown that transgender people pose a serious risk to the safety of others, then restriction would be justified. However, the threat would need to match the restrictions imposed by the law.

As a final response, a proponent of the law could say that when a case of a transgender person attacking someone in a bathroom is confirmed, that will show the law is justified. The counter to this is to point out that this principle is absurd—if a car ban were proposed, it would not be justified by pointing to a case or even a few cases of vehicular homicide. As noted above, what would be needed is evidence of a threat that warrants the restriction.

In light of the above discussion, the “bathroom bill” fails the basic test of restrictive laws: it imposes restrictions without the justification of preventing a sufficient harm. This should come as no surprise—the law is not about protecting people but about prejudice.

 

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