This one is just for my sister

From Overheard in New York:

Times Were Tough for Fezzik After the Flash in the pan of 'The Princess Bride'

Fat bouncer #1: Where the fuck is there a bagel store around here?
Fat bouncer #2: Umm... Bagels are delicious. Hey, maybe they have knishes. That rhymed!
Fat bouncer #1: You make no fucking sense.

--The Knitting Factory

Overheard by: hjane

The Rhetoric of the War on Terror

Roughly five years ago, I was at a meeting for a group of teaching assistants when the professor's secretary ran into the room. There was something on TV we had to see. We went into the other room and found that a terrible accident had occurred -- a plane had hit the World Trade Center. As we continued to watch, wondering what had happened, a second plane hit, and it was clear that, whatever had happened, it wasn't an accident. One of those watching cried out "This means war!" and I, in my naivete answered, "Who are we going to declare war on?" The answer to that question unfolded over the next few years -- apparently, anyone we want.

We are not at war. I blame the current rhetoric (for that is all it is, rhetoric) on Lyndon Johnson's War on Poverty. No one was really confused by that; it was clear he was using hyperbole. But then came the War on Crime and the War on Drugs, and it was less clear how much hyperbole was being used. The loss of civil rights often connected with war came to be connected with these pseudo-wars. And now we have the War on Terror, which looks very much like a war. And, understandably, people are confused; confused because, in addition to being at war with terror, we are at war with Iraq as well. But we cannot be at war with an abstract idea. Germany we could defeat, because it could surrender. Terrorism cannot surrender, cannot negotiate, and well never cease to exist. Terrorism has been around for 100 years, and it will be around for 100 more years.

For how long do you want to give up your civil rights? We often hear that we should, or that we have to. If this were war, they might have a point. But there is no end to this war. Should we sacrifice our liberty, the very thing they hate us for, until the end of time? What about the civil rights of others? Perhaps you don't care. But it's a short step from putting all muslims into internment camps to putting everyone who is 'anti-american' in internment camps. After all, muslims aren't the only terrorists! How many freedoms do you want to give up? Perhaps the freedom of speech is fine. You didn't really want to criticize the government anyway. What about the right to bear arms, or the freedom of assembly? What about the right to due process? Don't you want to be able to do something when the government decides you're an enemy combatant?

I don't like torture. When I took political theory in college, our midterm asked, "Of all the philosopher we've studied, who was the least Christian?" Partly tongue-in-cheek (but only partly), I argued it was Augustine, because he approved of torture. I don't think torture is ever justified, and the fact that our moral leadership has largely either been silent as the President of the United States seeks official approval for torture -- I don't have the words.

We are not in a fight against muslims. Well, we are. I'll admit, it's confusing. It so happens that, among those people who want to blow up large buildings in the US, most are muslim. Then again, to the best of my recollection, we've had three buildings blown up here, and only two of those were blown up by muslims. But it seems to be axiomatic these days that most terrorists are muslims. So it's not false to say we are fighting against muslims. But the inference doesn't work the other way. Most muslims are not terrorists. And certainly most muslims in the United States are not terrorists. So it's also not false to say we are not fighting muslims. Consider WWII. Were we at war with Europeans? Certainly. But that didn't mean we were at war with France. This is why statements like "There are more mosques in England than churches" are misleading. The question is, what do those mosques teach? Just because it's a mosque doesn't mean it's a breeding ground for terrorists.

We need to ignore the rhetoric that a feeble administration uses to try and maintain power. We need to ignore the rhetoric that that administration uses to justify vile practices world-wide. We need to look past the rhetoric and realize that, just because someone is a Republican or a president doesn't mean they're especially moral.

*note: This was inspired by the letter allegedly by Maj. Gen. Vernon Chong. If you want, you can read it here.

Remember Debs!

In connection with something I'll be posting this afternoon, check out this post on discourse.net, talking about the Pentagon's efforts to protect us from peaceful demonstrators.

Perjury and Plantinga

So, in my largely worthless legal ethics class, one of the things we've been discussing is when a lawyer can allow someone to testify, believing that that someone might lie. The general rule is, as far as I understand it, that as long as you don't know someone's going to lie, you can put them on the stand. But, given the fact that lawyers are often prone to rationalizations, you can easily get a lawyer saying something like "Well, I strongly suspected he was going to lie, but I didn't know it." And part of the problem, it seems to me, is that the law hasn't thought too carefully about what it means to know something.

The reason likely stems from other areas of the law than legal ethics. In criminal law and tort, knowledge is often an important element. However, it's hard to prove any sort of mental state in court, and especially hard with knowledge. How do you prove I knew she was going to kill him with my handgun, as opposed to believing she might? So we tend to dodge the issue by saying 'know or should have known' in these sort of circumstances. But this doesn't help with the lawyer and the perjurious client. The lawyer is supposed to trust his client, and act on behalf of the client, and so to a certain extent, the lawyer should exercise a sort of wilful ignorance. But only up to a point.

I've been wondering if the use of philosophical concepts of knowledge might help this. Two caveats. First, I'm not an epistemologist by any stretch of the imagination. Second, I've not thought about this for very long, so these are just preliminary musing. But then, you're used to that.

For centuries, knowledge in philosophy was defined as 'justified true belief'. That is, a belief counts as knowledge if it is both true and you have good reasons for holding it. If you believe that the moon is a big ball of rock because your tribal shaman told you so, and he believes it because of that ancient story about the god Fayon knocking some giant's head into the sky, you don't have knowledge. Your belief is true, but it just happens to be true. In any case, there was a famous paper in the 60s where Geddier proved that knowledge can't be justified true belief. So most philosophers don't hold to that anymore. But it's still their starting point, and so I'm going to go with it until I can think about it some more. Like I said, epistemology was never my strong suit.

It seems like if we just said that "A lawyer acts unethically when he calls a witness to the stand 1)believing that that witness will perjure himself and 2) having a reasonable basis for that belief," we could avoid alot of the problems involved in lawyer's weaseling out of what they should know is unethical. And it's not that lawyer's are especially unethical, it's that a lawyer's primary ethical duty is to her client, not to anyone else, and that has a tendency to obscure other ethical duties that she may have. But like I said, these are just preliminary thoughts, so I'd be interested in commentary.



*By the way, I titled this post "Perjury and Plantinga" mostly for the alliteration. Alvin Plantinga is one of the foremost philosophers working in metaphysics and ethics these days, and happens to be a professor at Notre Dame (and a former Calvin professor). He defines knowledge as "warranted true belief", but I've never been quite clear on what distinguishes warrant from justification.

One of three sports posts ever

Go Tigers!

Intelligence or Wisdom?

"This central feature of the Constitution [the public rights doctrine] must be anchored in rules, not set adrift in some multifactored 'balancing test'." -- J. Scalia

There seems to be some discussion about what type of rules it's best for the Supreme Court to be handing down to its lower courts. Some people like balancing tests. Others, like Justice Scalia, prefer bright line rules. To be sure, each has its advantages. Bright line rules give lower court judges clear guidance as to how to decide cases; balancing tests give those judges the flexibility to decide cases the way they think they ought to be decided. For example, take the issue of when the delay of an indictment violates a defendant's right to due process. Some federal circuits use a bright line rule: unless the prosecutor is acting to purposely gain advantage or recklessly, there's no due process violation. Other circuits use a balancing test, weighing the reasons the prosecutor has for the delay against the predjudice to the defendant.

Obviously neither sort of test is going to always be the correct test. Equally obviously, there are often going to be aspects to a test that look quite bright-line. To continue the previous example, both tests involve the bright line rule that there always has to be some predjudice to the defendant for there to be a due process violation. But it seems to me that, generally, a balancing test is preferable to a bright line rule.

Consider what the primary attribute of a judge is. A judge is, traditionally at least, someone known for their wisdom. Consider one of the most famous judges of antiquity, King Solomon. He was known, quite explicitly, for having legendary wisdom, and his legendary wisdom is connected with being a legendary judge. But it seems to me that bright line rules involve intelligence more than wisdom. Intelligence has to do with applying a principle to a set of facts; it has to do with having a rule and knowing how to follow it. But wisdom, or phronesis as we might call it, has to do with being able to pick among competing principles, which is much more like a balancing test.

Take an analogy to moral reasoning. Moral philosophers distinguish between the use of reason, which prescribes the best way to a given end, and wisdom, which chooses between different possible ends. And it seems to me that applying a balancing test is more like choosing between different ends, and that applying a bright-line rule is more like choosing the best way to a given end. (The given end being, in this case, the correct application of the rule).

So why does it matter? Well, as I mentioned above, the traditional prime attribute of a judge is wisdom; the traditional rule is to balance competing interests. Of course, there's not necessarily a lot of value in a blind adherence to tradition. But at the same time, all things being equal, it's probably better to follow tradition than not. But more than that, it seems to me that the overuse of bright line rules shows a lack of trust in the lower court judges. And it is inevitable that, if the Justices of the Supreme Court are signaling that they don't trust the lower court judges, that laypersons will pick up on this as well.