Some Thoughts on Criminal Justice

I am going to use a comment I got from my previous post to continue my discussion on criminal justice.

I have been questioning the "right to remain silent" - arguing that where it is permissible to compel Person A to provide information relevant to Person B's guilt or innocence, I cannot seem to find a good reason not to compel Person A to give information relevant to Person A's guilt or innocence.

This drew the following response:

I enjoy your blog but this is totally without merit. The state must prove it's case in criminal court. Torture or threat to make someone make a claim, false or not, is not the american way or desirable.

The Presumption of Innocence

On the issue that the state must prove its case in criminal court, I have raised no objections. In fact, I have repeatedly defended the proposition that an aversion to harming the innocent (a malleable aversion we all have many and strong reasons to promote) implies a motivation to ensure that harm not be inflicted on people without good reason to believe it is justified. This implies a burden of proof on the part of those who would cause harm, not on the part of those who would be harmed.

Furthermore, it argues that such a case must be presented to an impartial jury not bound by their own desires to conclude the case one way or another. Those who would cause harm are too likely to see skew their interpretation of the evidence as justifying harm whenever it provides a benefit to them. Those who would be harmed too often see their punishment as unjustified regardless of the evidence.

We have many and strong reasons to hold in utter contempt those arrogant and violent individuals who think themselves fit to serve as judge, jury, and executioner over others.

Torture

On the issue of torture, I have repeatedly raised objection here as well. When Bush and company lowered the worldwide aversion to torture, they created a world culture that made torture psychologically easier. He effectively told every dictator and warlord - and those who support them, "Go ahead and torture. Other things you do may be wrong, but this is not one of them." He particularly gave the world permission to capture and torture Americans. "How can you object? We are merely doing what your own Justice Department said it is permissible to do."

Compelling People to Testify

Furthermore, I have demonstrated that the claim that a, "threat to make somebody make a claim, false or not, is not the American way," is false.

We do threaten people to make a claim. We compel them to come to court and tell "the truth, the whole truth, and nothing but the truth". Those who refuse are held in contempt of court, fined, imprisoned, and - if they choose to resist or to flee these punishments - pursued by people with guns and state permission to use.

In fact, we compel people not only to make statements in a court of law, but in some cases compel them in certain circumstances to make statements having a specific content. "If you refuse to testify against your partner, we are going to increase the charges against you and add years to your punishment. We may even kill you for refusing, as this will influence our decision to seek the death penalty." What is this if not a case of compelling a person to make a certain type of claim?

Under such a system, a person who has nothing useful to offer to the police - nothing they can bargain with - have an incentive to make stuff up. It is subject to the same type of objections that apply to compelling people to testify against themselves - the problem of people presenting false testimony because it provides them with a means for avoiding harm.

Compelling People to Testify Against Themselves

We even compel people to be a witness against themselves when we tell them that refusing to confess to a lesser crime means risking a public trial and a chance of being convicted of a greater crime. Plea bargaining is difficult to understand as anything other than threatening greater harm to those who refuse to be a witness against themselves.

In fact, any American arrested is foolish to think that the invoking the right to remain silent will not be punished by a judicial system that rewards "cooperative" prisoners and adds charges and increases punishment levels against those who are judged to be "uncooperative".

Conclusion

The question remains - is there a defense to be had for a moral right against self-incrimination that does not, at the same time, condemn plea-bargaining or the subpoena power of the courts?

The "Right" to Remain Silent

I am having trouble coming up with a moral case for a "right to remain silent".

If Person A can be compelled to come to court and provide information relevant to the guilt or innocence of Person B, from where comes the moral objection to compelling Person A to provide information relevant to the guilt or innocence of Person A?

As I mentioned yesterday, when some people are given control over state violence, there is reason to take steps to avoid abuses of that power. History has shown that a common form of abuse is found where those who have control of state violence use it to extract confessions from rivals, critics, anybody who has something that the person in power wants, or anybody that those in power wants to harm for its own sake. Those (unreliable) confessions are then used as evidence in trial.

To help prevent these abuses, it may be wise to adopt a rule that says that coerced confessions are unreliable and often do not serve the interests of justice and are, for those reasons, inadmissible.

However, we are not basing this rule on a right against self-incrimination. We are basing it on the need to provide true and relevant information in a court of law - a need that gives us reason to dismiss "evidence" we hare reason to judge as potentially untrue and contributing to injustice.

I wish to digress for a moment and discuss "rights" in the context of desirism.

Desirism denies the existence of intrinsic values or natural rights and duties.

In the context of desirism, to say, "A has a right to X" (at least in this sense) is to say that others may not violently interfere with her obtaining X. Janet's right to freedom of speech means that people generally have many and strong reasons to promote a strong aversion to responding to Jane's words or expressions (including cartoons) with violence or threats of violence. And that we may use punishments such as condemnation to promote such an aversion and against those who respond to words and expressions with violence.

To say that a person who believes in flying horses should not be seen as a reliable journalist violates no right to freedom of speech. It advocates no violence and speaks only about private actions that fit within the free choices of all agents. On the other hand, rounding up and arresting atheist bloggers or threatening to kill or imprison anybody who insults a particular religion does violate this right to freedom of speech. We have many and strong reasons to respond to these threats of violence - let along the violence themselves - with moral condemnation. If any religious scripture calls for responding to words and expressions with violence, then that scripture gets the moral facts wrong and provides good evidence that the authors of that scripture had a limited understanding of moral facts.

Now, back to the "right" to remain silent.

A right against self-incrimination would exist if there were many and strong reasons to promote an aversion to responding to the decision to remain silent with punishment. However, we allow - and we have good reason to allow - a violent response if Person A remains silent about facts relevant to Person B's guilt. Person A is subpoenaed to show up in court and to give testimony where, if she does not obey, she is subject to arrest and imprisonment by people with guns who will escalate the level of violence even further if she resists these penalties. This is precisely a case of responding to a decision to remain silent with punishment. Why not allow prosecutors to subpoena and demand the testimony of the accused?

We still have reason to worry whether the information is reliable.

However, self-incrimination is not the only type of information that cannot be trusted.

In fact, it should be easier to coerce Person A into providing false information about Person B than it is to get Person A to provide false information about Person A. In the latter case, the person providing false information against oneself needs to be concerned with the effects that the false information will have on their own future. Whereas, when a person is coerced into giving false information about somebody else, it would take an extraordinary amounts of empathy to come up with the same level of concern.

This is particularly true where the State (or any official person with control of state violence) has the power to pay people to say what the State wants them to say, or to punish them for refusing to say what the State wants them to say. Taking years off of a prison sentence or adding years based on whether the "witness" says something the State likes or refuses to do is also an invitation to unreliable testimony.

We could respond to this concern in these types of cases by prohibiting people accused of a crime from testifying against each other, or by refusing to allow this fact to affect prison sentences or other rewards and punishments depending on the content of the testimony.

This might actually be a good idea. However, even if we were willing to go this far in cases of Person A testifying in the case of Person B, it would not justify an absolute prohibition on Person A testifying in the case of Person A.

From where can we get a prohibition on self-incrimination? Or, is this simply one of those cultural norms that we have adopted and passed on without thinking about it?

Miranda Rulings, Plea Bargaining, Justice, and the 5th Amendment

I am going to do something new with this blog for a while.

I am accustomed to writing about things which I have considered, and about which I have drawn conclusions. I want to spend done time on issues where I am puzzled to some extent.

Let us begin with the issue of Miranda rights. The Federal Government has decided - for "public safety" reasons, not to read Boston bombing suspect Dzhokhar Tsarnaev his Miranda rights before interrogating him. Dzhokhar is a US citizen arrested for a crime in the United States - a country where spies and saboteurs have long been provided with Constitutional protections.

Dzhokhar has a right to remain silent. However, the government is hoping he is ignorant of that fact and continues to answer questions, even to the point of incriminating himself.

I want to start with the disclaimer that this blog is not concerned with Constitutional law. It is concerned with ethics. The question is not, "What does the Constitution say?" but "What SHOULD the Constitution say on such matters?" We will admit to the possibility that the Constitution is wrong - as it was wrong on the issue of slavery, or that judicial opinions on what the Constitution does are at odds with what the Constitution SHOULD say.

What the Constitution does say, literally, is this . . .

No person shall . . . be compelled to be a witness against himself.

A person can be compelled to come to a court and give testimony on a case, telling the truth, the whole truth, and nothing but the truth, relevant to a criminal matter involving the guilt or innocence of somebody else. But they cannot be compelled to provide evidence that they, themselves, are guilty.

In Dzokhar's case, even though he has not been read his rights, this does not mean that those rights have been violated. It may well be the case that he is providing information without being compelled. His actions could be fully voluntary. The reason for the Miranda ruling was actually aimed at helping us to know that the accused provided information voluntarily. In the absence of such a warning, it may be the case (though by no means is it certainly the case) that the right against compelled evidence has been violated.

Why SHOULD we be concerned about governments compelling accused individuals from giving testimony against themselves. What moral issue is addressed by this requirement?

The most obvious issue involves a case in which those in power arrest a rival or a critic, coerced a confession out of them (through torture or other means), takes that confession to a judge, and sends the rival or critic off to jail. Of course, it may not be the King himself who demands a confession to give the appearance of legitimacy to injustice. It may be a local constable with a grudge or a business owner with connections seeking to eliminate a competitor.

These abuses of state power are to be prevented - and one way to recent them is by prohibiting the State from compelling people to provide evidence against themselves.

However, if this analysis is correct, why is it the case that plea bargaining is not a violation of a prohibition on self-incrimination. "If you confess to this lesser crime, we will drop the more serious charges and reduce your punishment accordingly."

This is functionally equivalent to saying, "If you do not give us information we can use to convict you, we will make your life worse off."

Well - they will attempt to, at any rate. The prosecutor still has to get the higher charges with its greater punishment past a judge and jury - and needs the evidence to do so. Yet, this runs aground on the fact that these types of threats often work - and people often feel compelled to be a witness against themselves. There are people in our prisons who have confessed to lesser crimes of which they are innocent because they were compelled to be a witness against themselves by the threat that efforts would be made to make them worse off.

Sometimes, even the threat of a trial, with all of its discovery and public presentation of private facts, can be coercive even without a guilty verdict.

Consequently, it seems that, with the Miranda ruling, we are prohibiting things that the 5th Amendment - or, more to the point - the moral case behind what the 5th Amendment SHOULD say - permits. While, at the same time, with plea bargaining we are permitting things that the moral case behind the 5th Amendment prohibits.

In the case of Dzhokhar Tsarnaev, the moral question is whether he is being compelled to provide evidence that could lead to injustice - that could lead to misinformation that could lead to his unjust conviction. Is Dzhokhar Tsarnaev being compelled to be a witness against himself - thus being put in a position where it is reasonable to believe that a false admission of guilt would be better for him than a true claim of innocence? That is where the possibility of injustice enters the picture.

Moral Condemnations and Tribal Identities

Yesterday, I wrote about a couple of hundred thousand arrogant, ignorant, semi-barbarians gathering at a rally in Bangladesh demanding that atheist bloggers be rounded up and executed.

I did not write about arrogant, ignorant, semi-barbaric Muslims - even though the vast majority of participants were Muslim.

The reason is because the second option invites confusion - a misunderstanding of the facts, include moral facts, of the case.

One should not include a tribal identity in a moral criticism of this type. It confuses and obscures the important issues and tends to cause people to draw unjustified and unjust conclusions.

While it is true that the protesters were Muslim, it is also true that they were Bangladeshi, that they were male, that they were adults born after 1900 and before 2010, and that they were human. We could have included any of these terms as well, and the statement would have still been literally true. Not every true statement is worth saying.

A possible response to this would be to say that their being Muslim is a relevant fact, while the rest of these facts are irrelevant. After all, they are calling for the execution of those who - in their opinion - insult Islam.

Here is where the problem lies, because it is not true that their being Muslim is a relevant fact. It is in virtue of their being a particular type of Muslim that they participated in this rally. There are other types of Muslims who did not participate in or support the rally, some of them in the government of Bangladesh.

Including the tribal identity in this list of terms used in moral condemnation invites the very real danger of applying the moral terms to everybody within the tribe. This is a bad move for three reasons.

First, it condemns the innocent. If there were - or even if there could be - a Muslim who does not fit the description of arrogant, ignorant, semi-barbarian, then using the term of tribal identity invites people to judge them guilty of moral crimes for which they are innocent.

Second, it allows those who are guilty to draw on the innocence of those falsely condemned. A standard - almost cliche response - to this type of claim is to point to that segment wrongly condemned as proof that the accusations are false and need not be taken seriously.

At the very least, those legitimately condemned are provided with an opportunity to change the subject. In this case, they get to shift the attention away from the fact that atheists are being rounded up and may be executed, and shift the conversation to one over whether Sam Harris is an Islamophobic bigot. This allows the arrests and possible execution to go on in the periphery of public attention.

Third, it provides cover for arrogant, ignorant, semi-barbarians who are not Muslim. They get to draw the unwarranted conclusion that, "The criticism does not apply to me because I am not Muslim." Socially, they can go on about their business because everybody's attention is being directed either to the arrogant, ignorant, semi-barbaric Muslim or Muslims wrongly being branded as such.

Removing the tribal tag from the condemnation removes the innocent Muslim from the target list and adds, the non-Muslim guilty of the same crimes, and it keeps the conversation focused on its legitimate target.

Let us assume, just for illustration, that 99.9 percent of Muslims are arrogant, ignorant, semi-barbarians; while only 0.5 percent of non-Muslims fit this description. This is a wild exaggeration I am using merely to illustrate that the point that I am making is applicable even in these extreme circumstances. Certainly it is more applicable to more moderate real-world situations.

It is still better - even in the sense of being technically more accurate - to link the 99.9 percent of guilty Muslims in this example with the 0.5 percent of the rest of the population who are also arrogant, ignorant, and semi-barbaric than it is to link them to the 0.1 percent of Muslims who are innocent. Or, if we look at it from the other side, as an accuser, I would rather be associated with the more modest, knowledgable, and civilized Muslim than with the arrogant, ignorant, semi-barbaric non-Muslim. Consequently, "Muslim" is not included in the description of those I am targeting.

The way to do this - the way to communicate these distinctions most efficiently - is to leave the purely descriptive tribal terms out of the moral condemnation. It is not morally relevant that the protesters in Bangladesh are Muslim. What is morally relevant is that the protesters are arrogant, ignorant, and semi-barbaric. Those are the qualities that we have reason to weaken through social forces such as condemnation.

Finally, some would argue that it is integral to Islam that one take this attitude of executing all of those who were to say, on matters of religion, "I think you are mistaken." If a person were to deny this view, then one would not be a "true" Muslim.

At one level, I am not such an expert on Islam that I can make or defend statement - and neither are the vast majority of people who make those statements. On another level, language is an invention. There is no sense to the idea of discovering the one true and correct meaning intrinsic to any term. There are only the meanings that people agree to use. The claim that there is a one true and correct definition of the term "Muslim" and that can only legitimately refer to people who advocate killing those who say they are mistaken is grounded on a false premise about the nature of language.

We can apply these points to a comment I received on my last post.

I am really shocked and surprised to see your observation on the situation now prevailing in Bangladesh. But I respect your personal right to freedom of expression. I am sure you know Bangladesh is a country of 150 million Muslims. Percentage of literacy is around 60. General people are still poor. Very rich people are also here. Politicians are in general rich. I am a Muslim by faith. I do also respect other faith. I believe in Islam because,it is the only religion on earth which hates poverty and illiteracy. Islam protects the rights of women, but not in a manner you think fit.These days westerns have almost no religion. Atheism never abuse or rebukes others faith or religion.

I did not write a post about all the people of Bangladesh. I wrote a post specifically about a couple of hundred thousand protestors in Bangladesh. Facts about non-protestors in Bangladesh are as irrelevant as facts about non-protestors in Tel-Aviv. I would protest a KKK rally in Washington DC - without making any implication about Americans in general.

I also - and quite intentionally - did not mention the term "Muslim" until the final paragraph. Even there, I mentioned it only in the contest of saying that I intentionally left out the fact that these protestors were Muslim because I think that there are problems in including such a fact that I would discuss in the next post (in this post). So, any comments made against my post by describing the virtue of some Muslims is also irrelevant to my post.

My post concerned the arrogance, ignorance, and semi-barbaric attitudes exhibited by any person, in any country, of any faith or no faith at all, who advocates the brutal murder of those who dare to say that they are mistaken. The only relevant responsen to such a post would be an attempt to defend the moral permission of executing those who dare say, "You may be wrong."

And the rule is - statements of moral condemnation should not include merely descriptive tribal identities. It only serves to confuse the issue and to invite the application of the moral claims to all members of the mentioned tribe. This, in turn, leands to conclusions that are not only unjustified but unjust and weakens their effectiveness in condemning the type of behavior we have many and strong reasons to condemn effectively.

The Moral Irrelevance of "Choice"

Pedophiles ought to be free to have sex with children. After all, pedophilia is not a choice. No person would choose pedophilia. If you think it is a choice, when did you chose not to be a pedophile? We can only guess at the number of young pedophiles, discovering their orientation and society's reaction to it, who take their own lives or suffer other (often self-inflicted) harms as a result of this condemnation.

Of course, the argument above is not valid. However, it follows a pattern established by those who defend homosexual marriage.

At this point, defenders of homosexual marriage will likely think of the differences between homosexual acts and sex with children. Homosexual relationships are between consenting adults who freely choose and, on the whole, know better than anybody else what they are getting into. Both participants choose to take their life down that particular road. Is there any reason to deny them the freedom to do so?

Those differences - not the issue of "choice" - distinguish what is morally permissible from what is not.

What if homosexuality became a choice? Let us assume that doctors discover that a particular drug targeted to alter a part of the brain "cures" homosexuality. Would it be permissible to coerce people into "treatment" by punishing and condemning those who did not? In this case, the claim that homosexuality is not a choice offers no defense. Now it is a choice. To live one's life without "treatment" is something one would choose to do.

I put "treatment" in quotes because "treating" somebody for homosexuality is like "treating" them for speaking English. In fact, no treatment is necessary because the individual does not have an illness. "Treating" a non-illness or non-injury is a misuse of language.

Does a straight man have a right to marry another man? Homosexuals demand the right to marry others because homosexuality is not a choice. Perhaps we should set up a test where the so-called "right" to marry somebody of another gender only applies to those who are certified to have untreatable homosexuality? Straight people will continue to be denied the right to marry somebody of another gender.

If we are talking about a true freedom here, we are talking about something that people have a right to even if they would not choose it. A person who would never choose to pay money to attend a sporting event still has the freedom to do so if he chooses. A person who would never stand on the steps of a court house and give a speech defending white supremacy still has the freedom to do so if he chooses. There is no defense of either of these - the freedom to pay to see a sporting event or the freedom of speech - grounded on the premise that one did not choose to be a sports fan or a racist. Sports fans and those who are not sports fans, racists and those who are not racists, have the same rights NOT grounded on any type of "choice" argument.

The right to marry somebody of the same gender applies equally to heterosexuals and homosexuals. It is not only independent of their choice, it is independent of their interests.

Where, then, do we get the illusion that choice matters?

It is a fact that condemnation is irrelevant where it does no good. If we cannot mold a desire through condemnation and punishment, then it makes no sense to do so. Condemnation and punishment are harms, which means that there is a prima-facie case to be made against them, except where they can do some good. When applied to a fixed desire, they do no good. Therefore, one should not praise or condemn where desires are fixed.

However, even if pedophilia is not a choice, condemnation of sex with children is still does some good. It helps to mold the interests of some who are not pedophiles who may seek to have sex with children for other reasons. Even if it were the case that pedophilia is not a choice, condemnation and punishment may serve to promote counter-weights to this fixed desire that prevent people from acting on it or drives them to seek treatment.

Similarly, even if homosexuality were not a choice, condemnation and punishment may be justified for the same types of reasons. It would prevent homosexual acts not motivated by homosexuality itself. Furthermore, it would serve to create counter-weights to the desire for a sexual relationship with somebody of the same gender that would prevent some people from acting on that desire.

The question is: Are there any good reasons to establish such counter-weights? In the first case, the health and safety of children say "yes". In the second case, there are no good reasons to establish those counter-weights, and many reasons not to.

Once again, "choice" is not a determining or even a relevant factor here. It is the effectiveness of praise and condemnation and whether or not they are done for good reason that matters.

The argument for homosexual marriage is quite simple - there is no good reason to prevent it.

Steven Pinker and Attaching Sentiments

Steven Pinker has proposed abandoning morality and replacing it with a project of attaching human sentiment to that which promotes human flourishing and minimizing harm.

I have been arguing that we keep morality and understand it as a project of attaching our sentiments to (promoting those desires for) those things that tend to objectively satisfy other desires - for example, promoting desires that create and distribute welfare goods such as liberty, health, clean water, food, and security.

The next question to address is: how do we go about (in Pinker's terms) attaching our sentiments to or (in my terms) or promoting desires for such states?

We must first eliminate an easy source of confusion by recognizing an ambiguity in the term "desire". We use the term both for what we desire as an end (e.g., to not be in pain), and for what we desire as a means (e.g., to take two aspirin).

However, a "desire-as-means" is a combination of "desire-as-ends" (to not be in pain) and beliefs (aspirin is a pain reliever).

When I write about desires, I am almost always writing about desires-as-ends, not desires-as-means.

Consequently, on the subject of attaching our sentiments to - or promoting desires for - some state I am talking about promoting desires-as-ends, interests, or goals.

On this matter, we must note that desires are not subject to reason. There is no set of facts as premises that entail a desire-as-end. You cannot reason anybody into valuing any state as an end in itself. In fact, you can only get a "desire" in the conclusion of an inference if one begins with one or more desires in the premises.

However, because a desire-as-means contains belief elements, you can reason with others about what they desire-as-means. A person who says, "I want to eat this apple" can be talked out of it by pointing out, "But the apple is laced with cyanide". You can point out to somebody that a state is not a useful means - and some other state is more useful. These facts about desires-as-means do not refute the fact that desires-as-ends are not altered through reason.

Instead, desires-as-ends are changed by activating the reward system. By rewarding somebody, you reinforce those desires that contributed to the action that brought about the reward. By punishing somebody, you reinforce aversions that will prevent the types of actions that brought about the punishment.

In this, praise serves as a type of reward, and condemnation serves as a type of punishment. They are among the tools we have available to shape sentiments and to influence the kinds of things those sentiments get attached to (those desires take as an object), as well as the strength of those sentiments (desires).

These effects are not limited to influencing the sentiments of those who are being rewarded or punished. Mirror neurons and the like allow the rewards and punishments inflicted on one person to influence all who witness or hear about the event. In fact, even fictional rewards and punishments on fictional characters have effects on those who are told the story.

People have reason to be concerned with the stories of reward and punishment that show up in works of fiction (though, I would argue that there is a good reason for a strong aversion to responding to words with violence).

This also creates a problem for those who insist that we must keep our debates "civil" and never engage in praise or condemnation. Its material implication is that we must accept all sentiments (desires) as they are, making no effort to promote useful desires or inhibiting desires that tend to promote harm. Conversations get heated precisely because of the fact that, while reasoned discourse is a legitimate tool for addressing a false belief, rewards such as praise and punishments such as condemnation are the tools for attaching sentiments to the proper objects.

We would be poorly served to do away with these tools.

However, this does not excuse the practice of misinterpreting the words and deeds of a rival tribe so as to manufacture reasons to condemn them. Tribal psychology, where one is disposed to give fellow tribe members the benefit of all doubt and to imagine reasons to condemn non-members has as unfortunate effect of derailing sound moral discussions.

Where Pinker talks about abandoning morality, what we really need to do is to learn to identify and avoid the effects that tribal distortions have on our moral judgments. We must keep the practices of praise and condemnation - and reward and punishment in general. We do not need to continue to have tribal psychology hijack and misdirect the use of these tools. In fact, we should abandon the practice.

Steven Pinker and the Concept of "Harm"

Steven Pinker and the Concept of Harm

Steven Pinker proposed replacing "morality" with a project of directing our sentiments towards that which maximized human flourishing and minimized harm - a project that people for 200 years have been (ironically) calling the "moral" theory of "utilitarianism".

In my last post, I claimed that "flourishing" is a rhetorically useful concept because it is substantially empty. I provided a more substantive concept of "flourishing" that failed to support the thesis that "flourishing" Is the only thing that matters.

Today, I wish to look look at the concept of "harm."

In the book, Harm to Others: The Moral Limits of the Criminal Law (further evidence that Pinker is overlooking much of moral philosophy), Joel Feinberg presented a careful analysis of harm.

Feinberg concluded that "harm" can best be understood as a setback to a person's strong and stable interests. Interests, in turn, can be understood in terms of wants and desires. A setback to a weak or fleeting desire would be classified as a "hurt" and, according to Feinberg, not a legitimate area of concern for the criminal law. After all, the criminal law is a large and clumsy tool, ill suited for working in fine detail.

Feinberg further divided "interests" into two types.

One set of interests are an agent's ultimate objectives or goals - the things that the agent values as ends in themselves. Translating Feinberg's analysis in terms of desires, an ultimate interest exists where an agent has a strong and stable desire that P. That agent has an interest in states of affairs in which P is true. Preventing P from being true - or actively making P false - would count as causing harm to that agent.

Another set of interests that Feinberg defines are "welfare interests". Welfare interests are things that agents find useful, almost regardless of what their ends are. Examples of welfare interests include money or economic power, health, liberty, knowledge (or education), and life itself.

Setting back a "welfare intrest" will almost aways have the effect of setting back an agent's ends or goals. Consequently, we can reliably (though not infallibly) conclude that a setback here will cause harm to an agent even without knowing what those ends are.

We can, on the whole, prevent a great deal of harm in terms of setback to ultimate interests - no matter what they are - by preventing the setback to welfare interests. By protecting liberty, people are free to pursue their own interests. By protecting their health we protect their ability to realize their projects or goals no matter what those projects or goals may be. By providing people with an education we prevent them from being harmed by their own ignorance.

This also explains many of our choices in terms of punishment. We can punish almost anybody by taking away a welfare good. We can use fines to reduce their economic power, imprisonment to reduce their freedom, or execute them. In each of these cases, we do not need to determine what the agent's goals are to determine what will give them a reason not to perform certain actions.

However, this tells us that to punish somebody is to intentionally harm that person. A principle that declares that we must never do harm is a principle that states that we must never punish. Unfortunately, adopting a principle of "do no harm" means giving access to massive benefits (and a very strong incentive) to the first person or group that rejects that principle.

A society without punishment is a utopian ideal. In the real world, we must be ready to harm - to set back the interests - of certain people under certain circumstances.

Furthermore, different interests conflict such that the same state of affairs can be harmful to one person while it benefits another. The rapist fulfills his own desire in ways that set back the interests of his victim and those who care about her. The business leader who drives a competitor out of business is setting back that competitor's interests. Freeing slaves does harm to the slave owner. Both allowing and prohibiting these types of activities cause harm. This is in addition to the harms threatened as a means of allowing or prohibiting these types of activities.

All of this tells us that we need a way to evaluate interests - to determine which interests will win these contests. Who will be prevented from realizing their strong and stable desires? Which projects "do not count" in the moral landscape? Under what conditions is it not only permissible, but obligatory, to set back the strong and stable interests of another? Clearly, when you prevent somebody from abducting a child and send him to prison instead, you have caused harm.

"But he deserves it," one would say in response.

However, "He deserves it" leads exactly to the type of "morality" that Pinker claims we must abandon. Pinker protested that "morality" must be abandoned because people use "he deserves it" or "they deserve it" as a reason to do great harms. Hitler thought that the Jews "deserved" what happened to them. If we quit moralizing, we quit doing harm. But we would also quit defending children from those who would abduct them. A problem with abandoning morality is not only do we stop condemning the Jew and the homosexual, but we stop condemning the murderer, rapist, thief, liar, bigot, con artist, drunk driver, and the like. What we need is a way to distinguish between legitimate and illegitimate use of moral terms.

Some people assert that certain desires are intrinsically better than others. However, those people have a problem providing us with an account of what "betterness" is, where it can be found, and how we can know of its presence. The problem arises because there is no such thing as intrinsic goodness. This option must be rejected because the claims it makes about the nature of value simply are not true.

David Hume gave us a system for evaluating desires (or character traits) 300 years ago that makes no reference to intrinsic values. He argued that interests - or character traits - can be evaluated according to the standard of (1) pleasing to self, (2) useful to self, (3) pleasing to others, and (4) useful to others.

That is to say, a desire is good to the degree that it tends to objectively satisfy, directly (pleasing) or indirectly (useful) the desires of self and others.

This gives us a substantive account of "harm" that helps us to evaluate interests and to determine which interests may be set back and which to promote. The desires of the rapist, liar, thief, and bigot tend to thwart other desires. The desires of those who produce welfare goods - rescue people, provide them with health care and education, promote economic growth - tend to fulfill other desires.

Pinker's proposal that we attach our sentiments to that which promotes human flourishing and minimizes harm becomes a thesis that we should promote desires that tend to objectively satisfy other desires - particularly desires that increase the stock and distribution of welfare goods, and inhibit desires that tend to thwart other desires.

The next question is: How do we do that?

Steven Pinker and the Concept of "Flourishing"

According to Steven Pinker, we should abandon morality and attach our sentiments to that which promotes human flourishing and minimizing harm.

This invites me to ask three questions:

(1) What is value?

(2) What is “human flourishing”?

(3) What is it about “human flourishing” that makes it the case that it is the only thing that has value?

I am going to ignore the idea that only "human" flourishing has moral worth - though it does indicate that Pinker has not given a lot of deep thought to his own moral theory.

Technically, I find little that I disagree with in Pinker’s main work. While many evolutionary psychologists seem to claim that morality is in our genes, Pinker claims that violence and domination is in our genes and, through several thousand years of social learning, we have slowly tamed that nature and given us a better life.

As I have pointed out in past post, nature itself invented "predators" and "parasites". It is not the case that evolution leads invariably to altruism and virtue.

All of this is consistent with the thesis of desirism that I have defended in this blog. Morality concerns the use of social forces to promote desires that tend to fulfill other desires. Over time we have gotten better at identifying desires that tend to thwart other desires and combatting them.

Part of the problem with Pinker’s proposal is that he uses a vague, ambiguous, and sometimes conflicting terminology. In this, he has substantially ignored 300 years of moral philosophy that has refined many of these terms and explored – sometimes in great detail – some of the problems that can be found in the formulations that Pinker offers.

Pinker writes in many cases as if “flourishing” is the only good worthy of promoting, and “harm” is the only bad worthy of avoiding. Yet, he offers no definition of “flourishing”, he offers no account of the metaphysics of “being worthy of promoting”, and he offers no argument to show that only “human flourishing” can or does possess this property of “being worthy of promoting”.

"Flourishing" is a rhetorically useful word in that it is a nearly empty vessel into which each listener or reader can put their own ideas of moral goodness. One person can hold that “flourishing” consists of living a simple life free of material concerns, while another may hold that no human living such a deprived life can sensibly be said to be flourishing. Yet, both can agree with the idea that flourishing is all that matters.

I am going to offer an account of value and an account of flourishing. However, these accounts will not support the conclusion that “flourishing” will not be one into which everybody can place their ill-formed opinions. Nor will it support the thesis that flourishing is the only good. Flourishing will be shown to be a subset of that which can have value. It is a large subset, but a subset nonetheless. It is not the only thing that people have reason to promote, and not legitimately made the measure of all things.

Value

Much of this repeats ideas I have presented often in this blog. I will be brief.

When a person says, “You ought to do X," this invites the party being addressed to ask, “Why?” The only sensible answer to this “Why?” question is, ultimately, an end-reason for intentional action that exists.

Desires are the only end-reasons for intentional actions that actually exist. They are the only end-reasons for intentional action that actually play a role in explaining and predicting phenomena in the observable universe - the behavior of intentional agents. Divine commands, intrinsic values, categorical imperatives, social contracts, committees sitting behind a veil of ignorance, natural moral laws, and the like do not exist.

Consequently, a true answer to the question, “Why ought I to do X” will relate “doing X” to some desire or set of desires. Specifically, he answer must relate "doing X" to creating or maintaining a state of affairs S where P is true of S, and there is a desire that P. The desire that P provides the end-reason for realizing states in which P is true.

There are many senses of the term "ought" or "should". Depending on the context it could relate doing X to a single desire, to an agent's current desires, to all of an agent's desires, to all desires of all agents, and the like.

To claim “X is good” is to say either that P is true in X (X is “good in itself”), or P is true in Y and X is useful in bringing about Y (X is “instrumental good”). The first type of goodness is often called “intrinsic good”. However, I try to avoid that term since it invites the idea that goodness is a desire-independent intrinsic property rather than a desire-dependent relational property.

Flourishing

“Flourishing” is a value-laden term. That is to say, “flourishing” is good by definition. "Flourishing" is a term used in evaluating a state of being for a living creature. Furthermore, is an end-good. No matter how useful a particular state may be, that state is not counted as one of “flourishing” in virtue of its usefulness, but in terms of being desired as an end. Finally, it is a strong good - a state for which we can find many and strong end-reasons to intentionally create or maintain.

When we add these elements to the proposition that desires are the only end-reasons for intentional action that exist, we get the following:

“Flourishing” is a state of existence in which several propositions P1, P2, P3, . . . Pn are true where the entity whose existence is being evaluated has many and strong "desires that P1, P2, P3, . . . Pn". This makes it true by definition that “flourishing” is something the agent has many and strong reason to pursue, and that a state has value as an end and not merely as a means.

This account rules out any account of "flourishing" that references intrinsic values, divine commands, the "natural/unnatural" distinction, natural moral aw, and the like. These are reasons for intentional action that do not exist.

Implications

This concept of "Flourishing" has a number of implications.

First, it explains how two different people can find “flourishing” in two different states. They each have different “desires that P” such that a state that objectively satisfies the desires of on agent will not satisfy the desires of another. The attempt to define flourishing as a state that is the same for all entities will fail.

In fact, the same person can have desires that conflict with each other. On one scale a desire for drugs or alcohol, for sex, or for food can interfere with other desires. Fears, which are desires to avoid certain states, may prevent an agent from realizing states that would fulfill other desires - prevent them from getting a job. Pain itself, though generally useful in motivating people to avoid things that conflict with flourishing, is sometimes not only useless but counter-productive; preventing an agent from doing that which fulfills other interests.

Second, there are situations in which one agent's flourishing will conflict with another agent's flourishing. One agent may require a state in which P is true, while another person’s flourishing requires a state in which P is false. Our efforts to promote flourishing must address the question of whether the first person’s flourishing will take priority over the second person’s, or vice versa. How are we going to weigh the conflicting flourishings of different people?

Our answer must be consistent with the fact that desires are the only end-reasons for intentional action that exists. We cannot answer this question by bringing in end-reasons for intentional action that do not exist.

Third, there is no reason to hold that it is the case that all desires are desires for personal states of being. More specifically, a desire is an attitude towards a proposition P; such as "I desire that I am having sex with Julie". However, there is no reason to limit the set of propositions P that can be an object of a desire to those concerned with the agent's states. A person can desire that something be the case after he dies (e.g., that the human race survive), or that something be true in another part of the world even if they do not know it is true (e.g., that the person I met on vacation last year and never talked to since got into college like she wanted). A researcher can desire to discover a fact of nature that overrides her personal interests, sacrificing health and relationships in the pursuit of that knowledge.

A person's interest in not being truthful or aversion to taking property without consent may make the person worse off than she would have otherwise been.

Conclusion

This post is meant to provide an admittedly quick account of what is required for an "ought" statement to be true (it must relate the object of evaluation to an end-reason for intentional action that exists; and desires are the only reasons that exist), what "flourishing" is (it relates states of being to the desires of the agent whose state is being evaluated), and why "flourishing" fails to account for all value.

Pinker's thesis that "morality" can be replaced with "attaching sentiments to that which promotes human flourishing" is, at best, an underdeveloped moral theory.

Steven Pinker - Human Flourishing and Harm

As I wrote yesterday, Steven Pinker claims that we ought to abandon morality and, instead, replace it with a system where we attach our sentiments to that which promotes human flourishing and minimizes harm.

There are elements in this that are common to what I have been defending - namely, the use of praise, condemnation, reward, and punishment to promote desires that tend to fulfill other desires. However, I do not call for "abandoning morality". This is, in fact, a moral theory - consistent with the claim that we need more morality (more promoting of desires that tend to fulfill other desires), not less of it.

However, Pinker's formulation is poorly defined and, ultimately, mistaken.

What is "human flourishing?" What is "harm"? Why do these deserve our attention and nothing else?

Because of these ill-defined terms, Pinker's formulation does not even solve the problem he wants to solve by adopting this principle and "abandoning morality."

Pinker's argument for abandoning morality rests on the fact that people offer moralistic justifications for all sorts of destructive actions. Murderers "justify" killing as an act of capital punishment. Rapists assert that their victims deserve punishment for the way they dress or the way they treat men, or because the man performed "his part of the bargain" in going out with a woman is now owed some sort of compensation that is a part of an implied contract.

Adolescent girls and young women are murdered by their own family members for dishonoring the family, homosexuals are imprisoned or killed or forced to endure abstinence for moralistic reasons.

On a larger scale, the Holocaust, religious wars and crusades, inquisitions, are all justified in moralistic terms.

If we abandon morality, Pinker argues, we can end this source of violence and have a more peaceful society.

Pinker ignores the fact that people also couch their defenses in terms of human flourishing and minimization of harm.

Hitler's Third Reich was supposed to bring 1000 years of human flourishing - once we eliminated the "harmful" contaminations - genetic and cultural - that were limiting human potential.

Slavery was justified, in part, by the idea that mentally simple-minded blacks are better off in the care of a paternalistic slave owner who sees rationally to their welfare than they could hope to obtain on their own.

The "traditional family" that limited the options of both men and women for centuries was defended in part by the idea that healthy "flourishing" family requires a male bread winner and female care taker - and it was not possible to thrive in any type of relationship. We cannot remove any of these parts and expect the family to function any more than a watch will continue to function without one of its parts. Nor can we change parts such that the spring becomes a wheel and the wheel becomes a spring - or the woman becomes the bread winner and the man becomes the care taker. Each piece of the family machine was built for its own function.

Opposition to homosexual marriage itself is still largely predicated on the grounds that people living such a depraved lifestyle cannot truly flourish.

Rich people hoard their wealth under the claim that it counts as a harm for their hard-earned property to be stolen from them and given to others who did not earn it, and that human flourishing is not possible where we reward the lazy and slovenly and punish the industrious entrepreneur.

Child molesters will claim that their actions help to liberate children from harmful puritan ideas about sex. They claim that their actions promote a healthier attitude towards sex that would contribute to flourishing if not for the hysterical overreactions of others who so insist on telling the child "You must have been harmed!" that the child comes to believe it.

Every catastrophy from 9-11 to Hurricane Katrina to every mass shooting is blamed on abandoning God and promoting secularism.

Protests against teaching evolution are grounded on claims like, "If you teach children that they come animals, they will act like animals,"

Islamic terrorists protest the harms that others do to Islamic communities that would presumably thrive in the absence of these harmful external influences. Almost all religious sects will tell a story about how humans can only flourish in a community that fully embraces God's laws.

In these and countless other examples we can see how a poorly defined principle of promoting human flourishing and reducing harm can still be used to promote the types of activity that Pinker thinks we can do away with by "abandoning morality." It does not solve the problem - it simply rewrites the problem in a different set of terms.

Steven Pinker: Abandoning Morality

Stephen Pinker and others like him are in the process of setting moral philosophy back 300 years.

I mean this as a literally true statement. David Hume published his work "A Treatise on Human Nature" 275 years ago. His work, and the work of philosophers since then, are utterly ignored - almost as if they never existed.

A couple of people have pointed me to a video where Stephen Pinker talks about advances in the understanding of human nature in 2013. In it he makes the following claim:

You might think that . . . The world needs more morality. If we can find out what makes people moral we can get people to do more of it. In fact, I would say that the main conclusion of a lot of this research is that that is exactly the opposite of what we should do."

Pinker should take the hint - if what he is studying is the opposite of what we SHOULD do, then he is studying the opposite of morality. Morality is the attempt to answer the question, "What SHOULD we do?"

Pinker tells us that we have too much morality. We ought to have less if it.

Ought.

That is a moral term.

What does "Ought" mean? What are the requirements for an "ought" claim to be true? What are the relationships between "ought" and "is" if any? What ought we to do? These are the questions of moral philosophy. Yet, these are the questions that moral philosophers have been working on for 300 years - and they are the questions that Pinker ignores. He does not even try to provide an answer. He does not even provide a hint that there are questions to be answered.

Thus, the claim that he has ignored 300 years of moral philosophy.

To Pinker, the incoherent ideas like the one quoted above make sense because he has redefined the term "morality" to mean "the set of emotions and sentiments commonly associated with people's claims about what we should so".

If we were to put his claims into terms that the moral philosopher can understand, we would say that Pinker's research supports the position that moral intuitions are not to be trusted. Moral emotions and sentiments are such that they provide a very poor defense of what we SHOULD do. Intuitionism often leads to error, and it should be abandoned in favor of a more external and objective method of determining what we SHOULD do.

In presenting and supporting his conclusions, Pinker is not giving us anything new. He is giving support to something that moral philosophers decided quite some time ago - and even for the same reasons. Why should we not trust moral intuitions when those intuitions have justified crusades and inquisitions, the Holocaust and slavery and the subjugation of women? We should, in fact, reject intuitionism because the racist, the rapist, the child molester, the murderer, and the thief all - more often than not - act in ways that their intuitions tell them is legitimate. When a form of demonstration is associated with so much failure, we need to reject it.

In its place, the two dominant threads in moral philosophy for the past 200 years have been "utilitarianism" (we should do that which brings the greatest good to the greatest number), and Kantianism (always treat others as an end in themselves and not merely as a means).

Neither of these fit into Pinker's definition of what we have too much of. If we were to apply Pinker's claim that we have too much morality to these theories, we would be forced to conclude that we have too much good for the greatest number, or that we have too many people treating others as ends in themselves and not merely as means.

It is odd, at best, for Pinker to offer a definition of morality that utterly fails to capture the two dominant moral theories of the past 200 years. It would be like offering a definition of religion that did not apply to Christianity or Islam - or a definition of "science" that excluded physics and chemistry.

Indeed, if we look at Pinker's own moral imperative - "We should attach our moral sentiments to that which promotes human flourishing and minimizes harm" with his claim "We have too much morality", we get, "We are putting too much effort into attaching our moral sentiments into that which promotes flourishing and minimizing harm."

"Logic" is not "that which a person claims to be sound". It concerns that which is sound in fact. The fact that a lot of people claim that things are sound that are not does not give us a reason to abandon logic.

"Truth" is not that which people claim to be true. It is that which is, in fact, true. The fact that a lot of people claim things to be true that are, in fact, false, does not provide a reason to hold that we should abandon truth.

And "Morality" is not that which people claim we should do. Morality asks the question, "What should we, in fact, be doing?" The fact that a lot of people attach moral terms to things we ought not, in fact, to be doing does not argue for abandoning morality.