Abortion, Murder, Justice, Law

This is an important article. Read it.

So, Dr. George Tiller was a murderer – or, late-term abortionist, as you probably prefer to call him. He was shot down while in church by a someone who believed he was committing justifiable homicide – stopping a killer before he killed again. But that man was wrong, right? He shouldn’t have killed Tiller, right? It was murder, right?

Legally, of course, it was. But if you’re someone who believes that abortion is truly murder, that it is the taking of innocent human life, you don’t get off as easy as saying “Tiller was murdered, murder is always wrong, so Tiller’s murder was wrong”. Rather – and the article I linked to makes the argument better than I can – it was wrong, but because it was vigilante justice, not because it was murder.

And that brings us (though the linked-to article doesn’t go this far) to an interesting and somewhat disturbing point. Now, vigilante justice is wrong because it subverts the rule of law. It leads to chaos. You can’t kill someone to exact your own justice, making yourself judge, jury, and executioner, and then expect to re-enter society and have everything be fine. Vigilante justice is a rejection of the legitimate authority and an attempt to establish a new one; it is, in its essence, no different than revolution. A revolution of one man.

A revolution of one man to stop abortion is wrong for a number of reasons. But what about a revolution of millions? If everyone who believed that abortion was murder was actually willing to fight for that belief, to prevent the over one million such murders happening every year, they might actually have a chance of winning. Would it be wrong for them to do so? It would cause chaos, for a time. Wars always do. It would also have a real chance of preventing over a million murders each year. How would this be any different from sending an army in to stop a genocide?

What it comes down to, as far as I can tell, is simply a matter of prudence. We don’t fight because the revolt wouldn’t succeed. It would end up causing so much chaos that it wasn’t “worth it”. And as soon as we start talking about “worth it” – about weighing the good and bad results like that – it means there’s nothing intrinsically wrong with such a revolution. It’s just wrong in the details, so to speak.

Which doesn’t mean it’s not gravely wrong. The man who killed George Tiller did something horrible. But that’s not because he believed evil was good, black was white. It was because he had no sense of prudence. He had a sense of justice, but no sense of law. Law, government, always asks questions of prudence. I think that’s another way of saying philosophy can’t govern, because it’s too impractical. Philosophy helps – the philosopher-king is not a bad idea – but it’s not enough.

Piracy

Firstly, an amusing website: http://www.thepirategoogle.com/

Secondly, regarding the recent increase in piracy off the coast of Somalia; the one good thing to come of it, in my opinion, is that people are reminded of what actual piracy is. It involves armed robbery, hostage-taking, and death. Whether making unauthorized copies of a movie or song is immoral or not, it is nothing like actual piracy in its severity. No internet pirate ever killed someone.

Now, on to the Pirate Bay trial. So, the legal debate itself – whether or not providing links to copyrighted material is illegal when you are not providing the material itself – is interesting, but fundamentally irrelevant. I tend to think the Pirate Bay should have won the trial on legal grounds, but I can understand the case against, given current copyright law. Really none of that matters, though; what everyone really cares about is whether or not piracy itself is wrong. Is it even possible to ’steal’ information?

Well…

Turin’s Manifesto on So-Called Intellectual Property

I like to look at this historically. It used to be that data was intimately bound up with physical property. Before the printing press, copies of books were made by hand; the book was valuable for its content, yes, but primarily because it was rare, difficult to produce, requiring hours and hours of painstaking manual labor. If someone wanted to make a copy of a book they had in their possession, they were free to do so; it would require a lot of work, and the new copy would certainly be theirs, since they created the physical artifact.

Then the printing press came along, and it became easy to make many copies of something – if you owned a large and expensive piece of machinery and could put in enough manual labor to produce a single copy of it. Making one copy and making a thousand copies required the same amount of initial effort, with little extra effort added for each copy. This made it so that, if someone wrote a book, they could publish it and make many copies of it, selling each of them for a slight profit – but that the few other people who had printing presses (not just anyone, since almost no one had such presses) could make their own copies of the book and sell them.

There seems something unfair about this; person A wrote the book, but person B profits from selling it because he just takes the text and prints it, giving nothing to person A. It was because of situations like this that copyright law was invented – giving a limited monopoly on the rights to print copies to the person who wrote the book. Anyone would still be allowed to make their own copies by hand, if they wanted to, but it would require so much effort they would be better off just buying a copy; copyright law’s purpose was to make sure that, when the common man bought a copy of a book, he bought one from the person who actually wrote it.

And copyright was for a limited period of time, because eventually the work would become public knowledge of sorts, and it wouldn’t make sense at that point to restrict access to it. That, or it would be forgotten, and it wouldn’t make sense to stop people from making copies of a book that would otherwise never be read. It’s better not to have laws that destroy knowledge.

In the last few decades there has been a radical shift in how easy it is to make a copy of something. Making an electronic copy of an electronic document takes seconds, and costs next to nothing, and almost any form of data – movie, book, song, whatever – can be made into a digital file. So when someone “pirates” something, breaking copyright law, they’re not anything like the people who set up printing presses to make money from books they did not write; they aren’t making money, the people getting copies of the books and movies and songs aren’t being tricked into paying the wrong person for the content; rather, data has been divorced from physical property, and people are beginning to act accordingly. When books had to be physical objects, it made sense to say that those objects could only be sold by the people who actually wrote the books; now, when books can be costlessly transferred online, it makes little sense to say they still must be paid for, and that it is stealing to create a digital copy of something and give it away for free. Again: Copyright law is a cumbersome legacy from a time when there was no way to transfer information except through physical property.

The basic point I’d like to make is that advances in technology require us to come up with different ways of encouraging the arts. Yes, the existence of internet piracy may cause a problem for the current music and film industries; that doesn’t mean we need to get rid of internet piracy, which is a natural result of the current state of technology. Rather, it means we have to find new ways of making sure artists can make a living from their work.

Before the printing press artists functioned under a patronage system; the poet Vergil, for example, was under the employ of the emperor Augustus. When the printing press came along books could be sold directly to the public for profit, and so capitalism and the arts became bedfellows. Now, with internet piracy making any profit from selling something along the lines of the current system dubious, a new system is needed. What it will be, I don’t know. But something has to change, and getting rid of internet piracy isn’t the answer.

Not a Book Review: Crime and Punishment

We recently read Crime and Punishment in my Literary Tradition IV class. I’m not going to write a book review, though; just go read it for yourself and see how awesome it is. All I have to say about the book per se is that Svidrigailov is an amazing character, the final three chapters he appears in are fascinating, and the book as a whole is fantastic – my only complaint is with how much Dostoevsky has emotions lead to physical effects – fainting, sickness, etc. It’s somewhat unbelievably Romantic.

Anyway, I’m not writing a book review – but the book actually fits nicely with what I was talking about a few months ago and promised to write a post about but never did (I actually started a draft but never figured out exactly what I wanted to say – you might see why from the rest of this post).

I’m talking about the question of, why do we punish criminals?

Is it because it is “just”? Is it because for the good of society we want to deter people from committing crimes? Is it to rehabilitate the criminal? Do any of these really make sense?

I was thinking about it for a while, and in the end, no… they don’t. If by “make sense” we mean have any firm philosophical backing. If we punish because it is just, aren’t we taking on the role of God, making the state into an idol that determines right from wrong? And what about the fact that “justice” doesn’t always lead to what is best for society? If it’s just a purely utilitarian concept of deterrence, don’t we have to say that even if something is intrinsically wrong – take, for example, murder – that if outlawing it doesn’t reduce the murder rate, we shouldn’t outlaw it? That’s crazy. If we’re trying to rehabilitate the criminal to put him back into society, what are we even to make of life sentences and the death penalty? They seem absurdities – but “common sense” dictates that those are the appropriate punishments for murder. And I’m a  big fan of common sense.

What we might want to say is that we can’t say exactly what our reasons for punishing criminals is, but having criminal law is obviously a good idea, and that all of these suggestions for why we punish criminals ought to be taken into account as evidence for why punishing criminals is a good idea… we justify punishing criminals through a “concilience of inductions” or something like that. But this isn’t satisfying either, in my opinion. And it gives us no way to say what is an appropriate punishment other than “common sense”.

—

What the book Crime and Punishment points towards is a mixture of justice and rehabilitation – or, rather, redemption. The final goal is to rehabilitate the criminal – but this can’t be done without justice being satisfied (though justice tempered with mercy). Protecting society from the criminal is a nice benefit, but not the primary purpose of the punishment. This makes a lot of sense to me – but it’s based on a fundamentally Christian framework, with the Christian meanings of justice, mercy, and redemption…

But ah well. This might be the best we’ll get. Government are all founded on unjustifiable assertions anyway…

Fighting Evil?

There are things we recognize as indisputably evil – for example, slavery, the Holocaust. And there have been wars fought whose outcome resulted in the end of these evils – the American Civil War, World War II. So those were good wars, right? Right?

Well…

I’m not saying they weren’t. But, it strikes me as odd that, while both of those wars resulting in the end of an evil, they were not entered into for that purpose. The American Civil War began as a question of states’ rights versus preserving the Union, not as a question of slavery. WWII wasn’t about saving the Jews, it was about stopping Hitler from taking over Europe.

Another example people might not like – the Iraq War’s stated purpose was to remove Saddam Hussein from power so he was no longer a threat to the US. Saddam was also a horrible dictator who slaughtered tens of thousands of people. Why is it that we had to present the war as stopping a threat to us (which it turns out Saddam wasn’t, really) rather than as stopping something that was indisputably evil?

I don’t know the answer to this. Perhaps it’s an imaginary problem.

Tricky Questions

Today is the 26th anniversary of the Roe v.  Wade Supreme Court decision in the United States, which, for all intents and purposes, legalized abortion-on-demand up until birth (though later court decisions were required to make clear that this is what it did). It is seen as a day of mourning and penance in the Catholic Church. In honor of it, I’m going to write a post about abortion.

Recently, I’ve more and more seen pro-choice advocates use this following rhetorical strategy. Pro-choicer: “So, if abortion was outlawed, what would be the punishment for it? Would you try the mother for murder?”
Pro-lifer: “Um…” Pro-choicer: “Aha! See, you realize it would be absurd to try the mother for murder; doesn’t that mean abortion is in fact no such thing?”

A tricky question, this one… it takes advantage of the fact that abortion is currently legalized, and many women have had them. If the pro-lifers say “yes, we would try the mothers for murder”, it sounds as if they are condemning every woman who has ever had a legal abortion as an illegal murderer. Obviously this wouldn’t go over very well. And many pro-lifers are simply too focused on getting abortion illegalized to think about what would happen once it was; they themselves perhaps haven’t thought through the distinction between women who have abortions today and hypothetical women would have hypothetical abortions once it were illegal. But that doesn’t mean there isn’t a coherent, reasonable, and just pro-life explanation for what would happen to a mother who had an abortion after it was outlawed.

Firstly, if abortion were outlawed, all the abortion clinics would be closed and easy access to abortion would be cut off. At this point no one could say they did not know abortion was illegal, and it would be just to punish them for it – while it would not be just to punish anyone who has had an abortion under the current state of affairs. This is something that would need to be made clear. It’s a similar situation to how slavery was abolished in the US; current slave-owners were not punished except by the loss of all the property they held in slave form, but if anyone tried to hold slaves in the US today, they would be punished, and severely. I wonder, did anyone in the pre-Civil War era use the argument, “so how would you punish slave-owners?”

So the abortion clinics are gone. But there would probably still be doctors performing abortions. In these cases,  the doctor, not the mother, would be the murderer. The main focus would be on shutting down the doctors who perform the abortions. They would be tried for murder. As for the mother, well, she would probably have to be somehow punished… but to what extent? To the same extent, no more but not less, than if they had committed infanticide. I’ve read that if a mother commits infanticide it is not seen as the same as murder; it’s treated as manslaughter. Abortion would have to be punished in the same way.

Is this unduly harsh? I don’t know. Is punishing maternal infanticide with trial for manslaughter unduly harsh? I hope no one thinks so. But if infanticide had been legalized and people were trying to re-legalize it, people might still use the argument “so how would you punish the mother?” The answer would be the same as with abortion, but people would have the same aversion to saying so – because if infanticide were legal, the mother who killed her infant legally would be just as much a victim of the process as the child himself.

Inheritance

A simple question… why do we inherit the possessions of our parents? It makes sense that we would desire to do so – the evolutionary imperative and all that – but why do we see it as just? It seems in some respects markedly unfair – if you’re born rich, you become rich when your parents die, and if you’re not, you don’t, with no reflection of your own merit.

Does anyone have a good argument for why inheritance is justified?

I’m not sure, but it perhaps is related to how we see the Constitution as having authority over us even though no one alive ever voted for it. It has been handed down to us, and so keeping it preserves order – there would be chaos if we had to rewrite our constitution every generation. Similarly, there would be chaos if all wealth was redistributed constantly from generation to generation. It is better to allow us to be bound by tradition, which G.K. Chesterton actually called “the democracy of the dead”.

We Obey

So, I recently finished reading my birthday present (given to me by my family before I left for Rome, so I’ve had it for a few weeks). It was the Book of the New Sun, the epic sci-fi/fantasy tetralogy by Gene Wolfe (the four parts, which are not at all  stand-alone, being the Shadow of the Torturer, the Claw of the Conciliator, the Sword of the Lictor, and the Citadel of the Autarch).

Now, the Book is amazing. I’m not even going to try to give a detailed review of it because I could not possibly do it justice. I really need to re-read it to try to understand it better, because it is just so dense.
I just want to talk about one small part of it – the nature of the Order of Seekers for Truth and Penitence, better known as the guild of torturers.

The guild’s pride is in the fact that, in a society where everyone is trying to get the upper hand and no one in the Commonwealth is really working for the common good, the guild members are the only ones who can really say “we obey”. They do not question their orders – they do what those who have lawful authority over them say to do, no matter what. It is not their place to decide whether the ‘client’ (their term for victim) is guilty or innocent, and decide whether or not to administer the punishment; that is the judge’s place. They simply carry out the sentence.
There is a certain power behind that philosophy. If you are going to claim to have a legitimate government with legitimate authority, you can’t have servants of that government taking the law into their own hands whenever they think the government has made a mistake. You can’t have prison guards deciding not to guard the people they think aren’t guilty, without having those people actually acquitted in a court of law. It would be chaos. It seems like every government needs this sort of stable foundation – and that’s what the torturers say they provide, the foundation for the government of the Commonwealth.

But that is also a philosophy that excuses, for example, the soldiers who worked in the Nazi death camps. I don’t think we want to do that. We want to say that when the government is evil the people should resist it. But we also want to say that people can’t take the law into their own hands whenever it suits them.

So what are we to do? These seem to be incompatible…

The only solution I can think of, and it is not altogether satisfying, is that one ought to be able to say, “We Obey”, and mean it, or one ought to be against the government, totally and without reservation. If you are a governmental servant and you cannot say “We Obey”, you are not really a servant of the government at all. You are fighting against it, subverting it. If you believe the government is evil, fine, fight against it, and do not say “We Obey”. But I don’t think you can say, “the government is for the most part good, but I don’t like ____, so I’m going to go against them on that”. That position does not seem internally consistent.

But that is what all of us do all the time. Almost no one can actually say “We Obey”, but almost no one actually wants to overthrow the government either…

Rights and Privileges

One thing that I find fascinating about “copyright” is what it actually means to have this “right to copy”.

Though we tend not to think of it like this, really, it does not give the owner of the copyright the right to duplicate and publish this work; it gives the owner of the copyright the “right” to prevent other people from duplicating and publishing this work. It is a “right” that gives the owner the ability to control the actions of other people, to prevent them from having access to information.

And really, in the American understanding, it is not a “right” in the same way that there are rights to life, liberty, and the pursuit of happiness. The Constution establishes copyright by saying that Congress shall have the power

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

Copyright is, according to the Constitution, not a natural right; it is created by the government, a privilege really, which limits the rights of everyone besides the owner of each copyright. It is created because it is thought that, by limiting everyone’s rights, “authors and inventors” can be encouraged to produce more so that the “progress of science and useful arts” can be promoted.

But the goal of copyright is not to guarantee the prosperity of authors or inventors – it is to promote the progress of science and useful arts. If we could promote the arts and sciences without limiting the rights of everyone besides the individual authors and inventors (and, really, since more than one person owns an exclusive copyright, everyone’s rights are limited by copyright), we ought to do so. And Congress does not even have the power, let alone a mandate, to make copyright any more powerful than necessary to “promote the sciences and useful arts”.

In fact, it seems to me that the way copyright is implemented currently is somewhat unconstitutional. Not only because it is in effect not “limited”, as the clause says it must be (though Lawrence Lessig lost the Supreme Court case in which he made that argument), but because it isn’t doing what it is supposed to do – copyright as it is now stifles, not encourages, innovation.

Of course it would be pretty much impossible to make that argument in a court, since one could always say that how copyright currently is implemented does in fact promote the arts and sciences, but that doesn’t make it not true.

Major Colvin

Last night, I finished watching season 3 of The Wire. The Wire, which portrays various aspects of life in Baltimore, Maryland, is definitely one of the best television shows I’ve ever watched, possibly the best; it has an unfortunate number of sex scenes and general vulgarity, but it’s also extremely well written, well acted, and manages to pretty much completely immerse the viewer.

One element of the season I just watched, which focused on city politics (while also, as in previous seasons, including the drug trade, police work, and general mayhem). There is one character, a police officer, Major “Bunny” Colvin, who decides to essentially legalize drugs in certain sections of the city. Without informing his superior officers, he tells his subordinates to crack down on all drug trafficking everywhere except the free zones, nicknamed “Hamsterdam”, where they will ignore everything except violence (so, drugs, prostitution, etc, are all OK there).

This doesn’t go over well when people find out about it, as you might imagine. But, should it have? What exactly is wrong with legalizing drugs, anyway?

Consider – if it was somehow proven that, by making murder legal, we would actually reduce the murder rate, would we even consider legalizing murder? I don’t think so. But that’s because we see murder as inherently wrong – it deprives another human being of their right to life. Nothing can justify legalizing it – even a reduction in death. Because as it is now, we see the victims of murder and try to seek justice for them, but if murder were legal, we would just be giving up on those who were chosen to die.

But drugs are not the same thing. Whether or not doing drugs is immoral, it doesn’t harm anyone else for the drug addict to use them. That means we don’t have to make this great stand against drug use regardless of the costs. If legalizing drugs reduces drug use or makes it less dangerous or reduce the power of drug traffickers (since if it’s legal, it can be legally imported), we should go ahead and do it. It’s a prudential decision, really. Not like illegalizing murder – which every society has to do if it wants to at all resemble a just one.

Scholars and Soldiers

The Nation that makes a great distinction between its scholars and its warriors will have its thinking done by cowards and its fighting done by fools.
-Thucydides

I came across this quotation recently and, since this is Memorial Day in the United States, decided to do a post on it.

The idea that scholars and warriors should be one and the same has a long history, obviously. I associate it most with Plato’s Republic – he has the Guardians, the philosopher-kings who rule the city, chosen from among the best of the Auxiliaries, the military caste. But it shows up a bunch of different places. I recently watched a mini-series version of Pride and Prejudice, which I have never read, and I found it interesting how much emphasis was placed on “the officers” as respected and desired men. Ancient Greece and 18th/19th-century Britain are two rather different places, but this same idea seems present in both of them. And a number of other historical places – I’m only citing the two most disparate examples I can think of.

But today, the military seems to be viewed as a less noble profession. All the sons of the intelligentsia going to be doctors, lawyers, businessmen, professors, priests, etc. None of us are going to be officers. Many politicians were in the military (John McCain, for example), but in forty years, will that still be the case? I tend to think not.

I don’t know if this is a good or a bad thing. Thucydides says it means all the professors and such are going to be cowards.