The moral theory posts this weekend will be:
(1) Justice - Desire Utilitarian Style: What is 'Justice' and why are Bush's policies unjust?-
(2) "Do Unto Others…": Can this be justified and what does it mean exactly?
This week, President Bush lead the Republicans in a successful battle against the fundamental principles of liberty and justice. It was literally a route, with the defenders of liberty and justice abandoning the field with barely a fight. So, it seems, this weekend would be a good opportunity to discuss the principles of justice. Too many people seem to have forgotten why they are important.
Utilitarianism and Justice
Utilitarians have traditionally had problems with the concept of justice. Utilitarianism seems to suggest that it is permissible to punish a person for a crime he did not commit if doing so would maximize utility. If it will make enough people happy for me to shoot you, then I may (indeed, I must) shoot you, according to traditional utilitarian theiry.
However, this is a problem with act-utilitarian theories, and desire-utilitarianism is not an act-utilitarian theory. Desire-utilitarianism looks at the effects of having particular desires and aversions. In order for me to shoot you, I would have to lack any specific aversion to shooting you. If I had an aversion to shooting people, then I would be inclined not to shoot them even when doing so will maximize utility.
The desire utilitarian then asks, "What is the overall utility of everybody having an aversion to shooting others, compared to the utility of nobody having an aversion to shooting others?" It seems quite clear that we all have reason to promote a universal aversion to shooting others. To the degree that we are capable of establishing this moral principle, to that degree each of us will be safer from the possibility of being shot. So, in place of a rule that says, "Do not shoot others," we promote an aversion to shooting others. We do this using the tools of social conditioning. Specifically, we praise and reward those who show a strong aversion to shooting others, and we condemn and punish those who show that their aversion to shooting others is too week.
The Function of Desires
If a person has an aversion to the pain of having his hand severely burned, this means more than saying he will not put his hand on a plate he knows to be hot. This means that he is going to assess any plate to make sure that it is not hot before he puts his hand on it. He will conduct tests first - tests that are rationally designed to ensure that the plate is not hot. He holds his hand near the plate to make sure that it is not radiating heat. He wets his finger and touches the object quickly. If he can reach assurance, beyond reasonable doubt, that the plate is not hot, then he will touch it.
If a person has an aversion to doing harm to an innocent person, this means more than saying that he will not harm a person he knows to be innocent. This means that he is going to assess any accusation to make sure that the accused is not innocent before he subjects the accused to any serious harm. He will conduct tests first - tests that are rationally designed to ensure that the accused is not innocent. He will hold a trial in which the accused will be allowed to present his side of the story. The trial will be before an impartial jury who does not have any stake in the case. If he can reach assurance, beyond a reasonable doubt, that the accused is not innocent, then he will allow punishment.
We can say of the person who puts his hand on metal plates recklessly (i.e., without taking care to make sure that they are not hot) that he is either (1) an irrational idiot, or (2) he really does not mind pain.
We can say of the person who advocates harm to others recklessly (without taking care to make sure that they are not innocent) that he is either (1) an irrational idiot, or (2) he really does not mind harming innocent people.
One difference between the two cases is that the irrational idiot in the first case only does harm to himself. He will suffer repeated burns to his hand that, hopefully, will teach him some valuable lessons. If he really does not mind the pain, then others have no reason to protest the effects of his actions.
However, the irrational idiot in the second case is a dangerous person who puts the lives and well-being of others at risk. He will repeatedly do harm to innocent people unless he is restrained in some way. One possibility of restraint is to say to such a person, "You must follow these constitutional provisions that were designed to ensure that the accused are not innocent."
If the person in the second case really does not mind if he harms innocent people, then he is even more dangerous. He is, in fact, evil - the precise type of person that rational people in society will condemn in no undcertain terms. Rational people in society want to make an example of him - to teach others in society, "Do not have the callous disregard for harming the innocent that this person shows."
If a person has an aversion to doing harm to innocent people, then he has reason to support and endorse a series of tests to make sure that the innocent are not harmed. If he fails to endorse those tests, he is either an irrational idiot or he does not mind harming innocent people.
So, what types of tests can we decide to make sure that the accused are not innocent?
Test 1: The Presumption of Innocence
We begin with a presumption of innocence. The person who does not want to risk putting his hand on a hot plate will begin with a presumption that plates are hot and will put the burden of proof on the case that the plate is not hot. The person who does not want to accidentally shoot somebody will begin with the presumption that all guns are loaded and put the burden of proof on the claim that the gun is not loaded (or that the device is not a real gun). The person who does not want to harm an innocent person will begin with the presumption that others are innocent, and will put the burden of proof on those who say that this person is not innocent and, thus, deserving of harm.
Test 2: Warrants and Grand Jury Indictments:
Those who would do harm to another must first subject their reason for doing harm to some preliminary test to make sure that there case is at least initially plausible. We find this written into our system of laws in two major locations. First, there is the requirement that the government obtain a warrant before engaging in any search and seizure. The government must make an initial case to a judge that says, "We are not going to harm this person for no reason; we have good reason to believe that this is not an innocent person we are dealing with."
This principle also makes sense of the requirement for prosecutors to obtain an indictment from a Grand Jury. Again, this is a requirement that those who would do harm first be able to make an initially plausible case that says, "We are not going to harm this person for no reason; we have good reason to believe that this is not an innocent person we are dealing with."
Test 3: A Fair Trial
We must hear both sides of the story. Anybody who has lived a normal life has experienced cases where one person has given an interpretation of events that has proved to be far from the truth. In explaining why a teacher or a fellow student behaved a particular way - why somebody missed a meeting or why a person phrased something a particular way, a person comes up with a theory, that turns out to be a far cry from the truth. We want to make sure that our tests are reliable. If the test says that the plate is not hot, we want this to be a reliable indicator of the fact that the plate is not hot. If the test says that the gun is not loaded, we want this to be a reliable indicator of the fact that the gun is not loaded. If the accused is not innocent, we want this to be a reliable indicator that the accused is not innocent. Any other type of test is foolish. A test of innocence where we do not hear the accused's side of the story is not reliable.
Test 4: Trial by Impartial Judge/Jury
The story must be heard by an impartial jury. If two people are having a dispute over which of them owns a parcel of land, we know that it is stupid to appoint one of the two litigants as judge. That litigant is going to see his own claims as valid, and the claims of the opponent as invalid. I am not talking about a case of corruption, here. I am talking about the simple will to believe. People have an annoying habit of believing that which it is in their advantage to believe. So, we want to make sure that cases are heard by somebody who has no advantage believing that the accused is innocent, or that the accused is guilty.
We speak about a jury being 'impartial' but, in fact, juries are not supposed to be impartial - any more than an agent is supposed to be impartial about whether a plate is hot or a gun is loaded. When we tell the jury to presume that the accused is innocent and that the prosecution must prove guilt, we are not telling them to be impartial. We are telling them to take sides - to start off siding with the accused. The prosecution has the duty to show them enough evidence to pull them away from supporting the accused.
Test 5: Right to Compensation
I mention this test because it is an element of justice that President Bush and the Republican leadership in Congress has ignored. The aversion to doing harm to others argues against having any law that says that the person who commits a crime can get away with it unless his victim can afford to take him to court. The injustice inherent in this type of legislation is like passing a law that says that the government will not take any action against murderers, rapists, or thieves unless a spokesman for the victim first puts up a deposit to cover whatever it cost's the DA's office to prosecute the case.
Again, I run out of room much too quickly.
I want to wrap up by linking a couple of important points. I have said that a person who does not obey the principles of justice shows that they either lack an aversion to doing harm to the innocent, or they have such an aversion but they are insanely irrational when it comes to avoiding those effects. They are like a person who fails to adopt a reliable test to make sure that he does not burn his hand on a hot plate. We must conclude either that he has no aversion to pain, or that he is insanely irrational in his inability to adopt a reliable test to make sure that a plate is not hot.
The other point that I want to bring forth is that the moral failing that makes terrorism possible is the lack of an aversion to doing harm to innocent people. The character trait that makes it easy for a person to throw aside the principles of justice - the lack of an aversion to innocent people being harmed, is the same characteristic that makes it possible to kill innocent people in a terrorist attack.
From this we find that the difference between a terrorist, and a legislator who votes for laws that violate these principles of justice, is not a difference in kind, but a difference in degree. Both have little regard for harm done to innocent person; one simply has less regard than the other.
There is, after all, little moral difference between setting up a bomb that kills or wounds a bunch of innocent people in a restaurant, and rounding up those same people and hauling them off to a secret prison, where they are tortured and abused for months or years without a trial. Either way, innocent people are harmed.
This explains what is truly horrendous with the unjust legislation that President Bush is getting passed this week in Congress, and the legislation his Administration is fighting for. Ultimately, it is ringing endorsement of the idea that the possibility of doing harm to innocent people does not matter that much.
If we wish to see this as a true conflict between different ideologies – as opposed to a conflict between two groups with the same ideology to different degrees, then one of the sides has to take up the principle that risking the well-being of innocent people is a bad thing. One of the sides has to take the position that the principles of justice are worth fighting for. One of the sides has to decide that it will distinguish itself from the other by embracing the idea that people are to be presumed innocent unless proven guilty, have a right to a speedy trial before a fair and impartial jury, has a right to present their side of the story and hear the evidence against him, and that victims have a right to see justice done even when they cannot afford to take those who our victimizing them to court.
One side has to show that they are governed primarily by the moral value that justice is worth fighting for, not against.