Protective Duties and Bounties

An early passage from Mill's The Subjection of Women suggests a potential tension between Mill and (some) modern feminists:

What women by nature cannot do, it is quite superfluous to forbid them from doing. What they can do, but not so well as the men who are their competitors, competition suffices to exclude them from; since nobody asks for protective duties and bounties in favor of women; it is only asked that the present bounties and protective duties in favor of men should be recalled.

If only it were that simple! In some areas, such as voting rights, it appears to have been sufficient to just make the laws equal, and women could exercise their rights with full force. Yet in so many other areas, it seems that more affirmative action (to use that phrase in a broad context) has been necessary. This would seem to be in tension with Mill's analysis.

It is hard to tell if Mill's mistake, if he is in fact making one, comes from underestimating the lingering effects of such a long tradition of gender subordination, or from overestimating the self-corrective power of market forces. Or perhaps Mill would eliminate the tension with line-drawing. As a quick example shows, it is not always clear whether a particular policy argument involves enacting "protective duties and bounties in favor of women" or simply eliminating "present bounties and protective duties in favor of men."

To the extent that a police department's height and weight restrictions are simply traditional proxies for fitness, doing away with them might very well fit into the "present bounties and protective duties in favor of men" that should be done away with. Mill could thus argue that changing those restrictions, or including a different set for women (like the Army's different physical fitness standards) is simply eliminating status quo preferences for men rather than any concession to assist otherwise uncompetitive women. To the extent, however, that any such restrictions reflect necessary functions of the job, I would think Mill would not favor making exceptions or concessions for women.

In that sense, Mill has perhaps implicitly foreseen, but swept under the carpet, a very complicated set of questions. What are the types of criteria and requirements which really serve as proper assessments of capacity to perform the particular function? And which criteria reflect built-in prejudices for the way a man would do the job, or worse, are mere proxies for discrimination? At the margins, it seems pretty hard to know the difference.

The Subjection of Women

One cannot even make it out of the first paragraph of Mill's essay without marvelling at the revolutionary character of his thinking:

[T]he principle which regulates the existing social relations between the two sexes -- the legal subordination of one sex to the other -- is wrong in itself, and now one of the chief hindrances to human improvement; and... it ought to be replaced by a principle of perfect equality, admitting no power or privilege on the one side, nor disability on the other.

Amen, Brother Mill. And since Professor Anne Coughlin, my mentor and one of legal academia's most independent feminists, thinks Mill's 1869 [!] essay remains the best explication of the feminist ideal, I can hardly wait to finish this post and get back to it.

Venerable Interpretation

I got this amusing smart-ass email from Singapore over the weekend regarding the 1st Precept:

Dear Venerable,

I have a couple of situation clarification with regards to the 1st precept of abstention from killing.

a) In my house toilet, sometime there are some puny ants. I need to
clean the toilet. I tried sending loving kindness and ask them to go away - but guess I don't have the ability. So they still wandering around. I spray water and they died.

b) I play golf. Sometime, while trying to take a shot, a puny ant would be crawling on the golf ball. I usually brush in away or wait till the ant crawl down to the ground and disappear. I take my golf shot - wandering whether the ant escaped or has been killed by my golf swing?.

Kindly advise how to interpret these situations. Thank You

My smart-ass response:

These are very difficult situations.

First, I would advise that you leave the toilet to the ants and shit outside.

Second, try to play golf with an imaginary golf ball instead of a real one. This will eliminate any danger of striking an ant, and should also help in avoiding sand traps and water hazards.

I do have to wonder, though, about someone who would go through all the trouble of finding a website that discusses Buddha's Five Precepts just to send an e-mail like that.

Hate to Disagree With Volokh

I do hate to disagree with Volokh, especially on what amount to religious grounds for me, but I think he's wrong here:

I suspect most of us think that a pill (or some other mechanism) that could reduce desire (especially strong desire) for alcohol, drugs, or unhealthy foods would be very good, because it would provide a very valuable, possibly life-saving choice to people.

Well, maybe he's not wrong. Maybe most people would support it. But I wouldn't. Desire is the fundamental human weakness, and it doesn't really matter where it is targeted. But to overcome it through an external source, like a pill, is in my view a tremendous restriction of someone's freedom rather than something that "free[s] them of their physical urges." True freedom comes from facing those urges head-on and defeating them. Now I may be going too far, particularly in cases of addiction. That's not a question I've really grappled with, but insofar as addiction is a disease, I think it should be excluded from the discussion of "desires". In general I do have a problem with this idea of external artificial intervention, and Volokh's main example is of someone who is committed to veganism philosophically but for reasons of desire/taste is unable to follow through. I say it's better for the would-be vegan to learn not to desire the meat than to take a pill that accomplishes the same. I even think it better that he struggle his whole life, falling off the "wagon" on occasion, than to pop a pill and be a vegan the rest of his life. Ease and "happiness" can't really be the only values we're trying to instill, can they?

Aurelius and Constantine

I've previously discussed my distaste for sloppy counterfactuals, but here's a great counterfactual from Mill that is actually worth thinking about:

It is a bitter thought, how different a thing the Christianity of the world might have been, if the Christian faith had been adopted as the religion of the empire under the auspices of Marcus Aurelius instead of those of Constantine.

As a Sigma Chi I probably ought not speak badly of Constantine, but this really does raise some interesting historical questions of which I must confess the greatest ignorance. What was the effect of Constantine being the great patron of Christianity? Is the militancy and intolerance of the Crusades/Inquisition/etc at all traceable to this accident of history? Would Aurelius really have done better?

Duty to Help

It seems pretty clear that Mill envisioned a sphere of liberty larger than that provided in our country right now. That's why it seemed so strange to see this claim:

There are also many positive acts for the benefit of others, which he may rightfully be compelled to perform; such as to... perform certain acts of individual beneficence, such as saving a fellow-creature's life, or interposing to protect the defenceless against ill-usage, things which whenever it is obviously a man's duty to do, he may rightfully be made responsible to society for not doing.

First I must admit I'm not sure whether he is arguing that this responsibility should be enforceable by law, or "where legal penalties are not safely applicable, by general disapprobation." He doesn't make it clear.

If he does intend to have it legally enforceable, however, it would seem to be an interesting area where Mill is actually calling for more restrictions on liberty than our laws currently provide. Isn't "you don't have to save a drowning baby" one of the classic points illustrating our hesitance to enforce a so-called duty to help?

I've always thought so, and Seinfeld finale aside, have rarely run across so-called Good Samaritan laws (not the ones protecting those who help, e.g. roadside motorists, but those actually enforcing a duty to help). Naturally enough, today I ran into one. While researching rape laws (a terrible project that has been pretty depressing), I came across this Rhode Island law:

11-37-3.1 Duty to report sexual assault.

Any person, other than the victim, who knows or has reason to know that a first degree sexual assault or attempted first degree sexual assault is taking place in his or her presence shall immediately notify the state police or the police department of the city or town in which the assault or attempted assault is taking place of the crime.

Very interesting... and here's the penalty:

11-37-3.3 Failure to report -- Penalty.

Any person who knowingly fails to report a sexual assault or attempted sexual assault as required under � 11-37-3.1 shall be guilty of a misdemeanor and, upon conviction, shall be punished by imprisonment for not more than one year, or fined not more than five hundred dollars ($500), or both.

I don't as yet have an opinion on the wisdom or justice of such laws, though my policy preferences certainly support anything we can do to reduce the difficulty of preventing/prosecuting sex crimes. But as a question of liberty, I'm befuddled.

Mill's other examples of positive duties are "to give evidence in a court of justice" and "to bear his fair share in the common defence," and I'm fully on board with the first, and mostly on board with the second. So maybe Mill is on to something, and the hesitancy we have about enforcing a duty to help is ill-founded.


So I'm two pages into On Liberty, and already Mill has wowed me. Read this and tell me it doesn't evoke images of a certain attorney general:

To prevent the weaker members of the community from being preyed upon by innumerable vultures, it was needful that there should be an animal of prey stronger than the rest, commissioned to keep them down. But as the king of the vultures would be no less bent upon preying on the flock than any of the minor harpies, it was indispensable to be in a perpetual attitude of defence against his beak and claws. The aim, therefore, of patriots was to set limits to the power which the ruler should be suffered to exercise over the community; and this limitation was what they meant by liberty.

I hope the next ~90 pages are just as good.

Moral Authority

Another point in Mill's "The Spirit of the Age" that piqued my interest was his discussion about the difference between "natural" and "transitional" states, the first being defined as a state where the most virtuous and wise are in power. He distinguishes between legal/political power and moral authority, and points to medieval Europe as an example of a natural state in both realms. Though we might dislike their beliefs and actions, Mill suggests it seems clear that the noble classes and the clergy were the most educated and skilled of that time. Thus even though we might not consider them good rulers, they were the most qualified available.

Mill was writing in large part as an advocate for what became the Reform Act of 1832, partially extending the vote to the middle classes. Mill attacked the aristocracy as having decayed in their leisure, failing to maintain their skills at governance and neglecting to take advantage of their free time and money to further their leadership capacity. Thus it was no longer true that those in power were the most qualified.

This is all well and good, but a rather obvious question kept creeping into my mind: "What is the spirit of this age?"

Do we retain the capacity to choose the most wise among us, as Mill was so convinced liberal democracy would allow? He refers to the United States multiple times as a paragon of sagacious leadership, but I wonder if a) that was ever true, and b) if so, whether it remains true today.

Certainly there are some very skilled members of our governments, and most are well educated. But I do wonder whether the growing influence of campaign finance and increasing income inequality might be setting up a system in which those chosen to rule has more to do with heredity than wisdom, exactly the formula for the decay which Mill is deriding. I'm not making an underhanded attack at our current President, but I'm concerned with our system as a whole and he certainly is a product of it.

Of even more interest to me than questions of political power is determing the current source of moral authority. One of the characteristics of Mill's "transitional" state is that there are no settled and "received" wisdoms, because there is no accepted moral authority. The clearest example he gives of a "natural" state of moral authority was the medieval, pre-Reformation Catholic church, whose priests were received by all as the intermediaries to God, and who genuinely were the most skilled of their age, likely even being the only ones who could read and thus have access to any collected wisdom.

Regardless of the veracity of Mill's view of the church, it did leave me pondering what our source of moral authority is. It certainly is not 'the' church, as America, religious and Christian as it may be, is not beholden to a particular church. We don't have an aristocracy, and the rise of public education has done much to alleviate the stark contrasts that would result from education being a privilege of the upper class. So the upper class doesn't provide our moral compass. Our politicians? I don't think so. Is it our legal system?

In the end I suppose I'm wondering what people think the great moral influences of our day are, and if there is no stable and "received" perspective, whether that means we are currently in a "transitional" state... if we are in such a state, then some of the battles being fought in our country would seem to take on a greater importance, as they may determine what "natural" state we are headed for.

The Apology

I read Plato's Euthyphro and Apology today. The first I had previously skimmed for a class titled "If There is No God, All is Permitted": Theism and Moral Reasoning (syllabus here). The course description gives some idea of the context in which I read it:

Belief in God and denial of God's existence have each figured prominently in Western moral discourse. Arguments have been advanced that: autonomous human reasoning is incapable of arriving at moral truths without a supreme principle to ground the system (which is sometimes invested with "personality" and called God); that autonomous human reasoning can have no impact on moral behavior due to human failure that only God can "correct"; that autonomous moral reasoning is impossible, and morality can only be understood as the submission to the will of a superior moral being; that a concept of God is necessary to direct and regulate moral reasoning, but the actual confessional versions of theism are metaphysically implausible or impossible; that autonomous human moral reasoning is impossible with God, and thus only a-theism can lead to moral conclusions. This course will engage all these different themes.

Well it was a pretty heady class and regrettably I didn't do much of the reading or go to many of the classes (the same can be said for a number of my classes). Nonetheless I did read Euthyphro and remembered it as a strong indictment of those who would ground their visions of the good squarely with the will of God. Re-reading it only buttressed that idea.

The Apology was completely new to me, but really serves as a stellar anthem for the noble philosopher, as well as providing a solid explanation for the method of cross-examination that still bears Socrates' name.

I'm particularly struck by how straightforward these early works of Plato are (admittedly excluding the act/state gymnastics in Euthyphro). I've become so accustomed to expecting philosophy to be dense and dry that the conversational tone of the texts has been a delight. I'll be little surprised if this proves a temporary phenomenon as I move into Plato's later works, but for now it is a breath of fresh air.

The Value of Counter-factuals

Kevin Drum has an interesting post on why the Sixth Amendment is more important than the Second. I haven't really thought about this question, but I don't have a problem with anything in his argument, nor is that the topic of this post.

The comments to Kevin's post got a little sidetracked, as comments sections are known to do, but moved in an interesting direction. Even I joined in when the discussion turned to the hypothetical situation in which America's military tries to takeover the country (an absurd possibility to my mind, I've yet to see a realistic explanation for how or why this might happen). This got me thinking about the value of hypotheticals generally, which reminded me a bit of Volokh's piece on slippery slope arguments, and finally led me to the question I want to raise in this post (finally, the reader says), which actually has nothing really to do with Calpundit's post in the first place.

How valuable are counterfactuals (i.e. alternate history hypotheticals) in an argument? It seems to me that they are used pretty often in common discourse and probably less so by academics. The first one that comes to mind was this joke during the latest Iraq war:

An American says to a Frenchman, "Do you speak German?"
The Frenchman responds, "No."
The American says, "You're welcome."

So the point you're supposed to take is that if America hadn't entered the war, Germany would have conquered Europe and France/England/etc would have disappeared forever. Now I support and accept the broader theme, which is that American intervention has not always been unwelcome by the French, and perhaps they ought to remember that.

But the method of argument, the counterfactual, bothers me a bit. First off, it is non-falsifiable. I can't prove that Germany wouldn't have permanently occuped France, but you can't prove that it would have.

To my mind, this is a rather fatal flaw all by itself: forgivable perhaps in meaningless rhetoric, but not in a real debate. Yet the real problem I have with counter-factuals is that they are almost always tremendous over-simplifications of complex situations. Staying with the Nazi Europe counter-factual, even the basic assumption that Germany would have won the war without American intervention is an easily contestible claim. Then there'd be the Cold War that never happened. That might have some hard-to-predict ramifications.

So my question is simply this: why do people resort to counterfactuals so often? Is it because we like non-falsifiable oversimplifications?

The Care Principle

I just finished reading Wolff's Introduction to Political Philosophy and am pretty pleased. It would have been useful during my intro theory class at Harvard. Of particular interest to me were the weaknesses of traditional consent theories (tacit or otherwise), and the last chapter which focused on feminist attacks on liberal individualism. In particular, Wolff references Carol Gilligan's In a Different Voice, which though I've yet to read, appears to have a facially interesting look at the distinct approaches to moral theory by men and women. From what I gather the basic distinction is between the male emphasis on abstract rights and the female emphasis on caring and responsibility.

I'll have to read it to give a proper evaluation, but from my own anecdotal experiences this seems pretty insightful. I have noticed in law school that the male students tend to focus immediately on more abstract underlying principles, whereas female students are more likely to be interested in the particular facts of a case. This is obviously a over-simplified generalization. It also means neither that men can't care about the facts nor that women can't understand the abstractions. I just see a difference in what tends to be the first priority.

A Hobbesian America?

I've just started reading Jonathan Wolff's An Introduction to Political Philosophy, having found the Adam Swift book a great introduction of the theory. Wolff's book seems to take a more historical approach, and his early description of Hobbes' view of (the impossibility of) morality in the state of nature reminded me a bit of the administration's current foreign policy:

We would find it hard to disagree that people in the state of nature have the right to defend themselves. That said, it also seems evident that individuals must decide for themselves what reasonably counts as a threat to them, and further, what is the most appropriate action to take in the face of such a threat. No one, it would seem, could reasonably be criticized for any action they take to defend themselves. As pre-emption is a form of defence, invading others can often be seen as the most rational form of self-protection.

Of course this is not really a defense of pre-emption per se, merely a Hobbesian explanation of why pre-emption is certain in the horrible state of nature.

Could this be how America now sees the world? As a stateless place where we can attack for gain, safety, or reputation? Where we are constantly under threat from those envious of our wealth or afraid of our power? One could certainly view 9/11, Afghanistan, and the gulf wars through this lens:

[I]f one plant, sow, build, or possesse a convenient Seat, others may probably be expected to come prepared with forces united, to dispossesse, and deprive him, not only of the fruit of his labour, but also of his life or liberty. And the Invader again is in the like danger of another.

Further, perhaps what international law we have (had?) is seen as a sham that restricts the American ability to protect itself without providing any of the protection that would induce us to consent to such governance.

Whether one believes in an international Hobbesian state of nature or not, we certainly seem to be pushing closer to one.

UPDATE: I should have known Matthew Yglesias had already touched on the subject:

It seems to me that the Russo-Franco-Chinese position that no military action should be undertaken without Security Council authorization is, in fact, very Hobbesian. The idea is that, absent rules, life will be nasty, short, and brutish and that we ought to avoid creating such an anarchic situation at all costs. It follows from this that, given an institution capable of articulating global rules of conduct we ought to enhance its authority and turn it into a global Sovereign of sorts.

At any rate, what Kagan seems to be doing by labeling US policy as �Hobbesian� is identifying Hobbes with the sort of anarchic situation he most feared.

OK, so America wouldn't be Hobbesian... it'd just be accepting Hobbes' view of the state of nature, and applying it to the international scene. Unlike Hobbes, it isn't really looking for a way out of this state. Instead it sees pre-emptive action as an American pregorative (as a member of the state of nature), and is clearly willing to use it.

The Difference Principle

Thanks to about 4 pages of Adam Swift's intro to political philosophy, I can now read and understand the debate on Rawls' difference principle (and Cohen's critique) discussed last week by Yglesias, Schwartzman, Solum, and Bertram (and probably others).

That doesn't mean I have anything interesting to add, I'm just excited to understand what they were talking about. Kudos to Swift. It really is a fantastic little book.

UPDATE: This sidenote in the discussion about communitarianism vs. liberalism is brilliant, and puts forth a principle I will try to keep in mind:

Especially where somebody disagrees with you, it is usually a good idea to see whether there is any way in which what, or some of what, they are saying could be true. It's likely to be more intellectually productive than the opposing strategy, which is exactly what politicians are trained to do: they deliberately avoid whatever is good in their opponents' arguments and hone in on - and rubbish - the bad bits.

Freedom as Autonomy

I've started reading Adam Swift's intro to political philosophy, and it is fantastic. In just a couple pages he succinctly made clear the basics of Rawls and Nozick, as well as the popular conception of justice as desert.

Now I'm in the chapter on liberty, and Swift is making quick work of unpacking the dual liberties of Berlin (the often confusing distinction between 'positive' and 'negative' liberty). I've also finally been introduced to MacCallum's triadic, which I'd heard of but never had summarized so well. Swift thinks the latter offers a better alternative to the false distinction between "freedom from" and "freedom to" (since any freedom can be defined either way), instead proposing a three part definition of a freedom:

x is (is not) free from y to do (not do, become, not become) z

Thus the interesting questions according to MacCallum are: what counts as an x (i.e. what are the agents capable of freedom), what counts as a y (i.e. what types of contraints count; is poverty a constraint?) and what counts as a z (i.e. what are the acceptable goals and ends).

Within the debate, a particularly interesting analogue I'm noticing is between what Swift calls "Freedom as autonomy" and Berlin's fear of the potential totalitarian use of the notion, and what has been called in several of my law classes the 'paternalist' nature of the law. We never discuss judicial paternalism in terms of its potentially totalitarian nature, but I'm not sure they are actually different phenomena.

Political Philosophy

I've been reading Blackwell's Companion to Political Philosophy and have been looking for me. Micah Schwartzman has pointed me to a couple posts by Chris Bertram on various political philosophy introductions. Looks like that $40 gift card is going to come in handy.

Brotherhood and Light

Saturday is my day away from the Internet, but I like to leave a little dose of spirituality. Though never a Christian, I find much beauty in the New Testament. This is John 2:9-11.

Anyone who claims to be in the light but hates his brother is still in the darkness. Whoever loves his brother lives in the light, and there is nothing in him to make him stumble. But whoever hates his brother is in the darkness and walks around in the darkness; he does not know where he is going, because the darkness has blinded him.

Feminism for Men

I've been reading a companion to political philosophy for the past few weeks, trying to brush up before I begin my planned summer adventure into legal philosophy. The book I'm using has three main sections: methodologies, ideologies, and special topics. I'm nearly finished with the second section, and just read the chapter on feminism. What struck me most about the movement is how little effort has been made to help men understand feminism, since we lack the experiential knowledge that seems so integral to feminist thought.

It seems to me that men such as myself, naturally drawn to most popular 'feminist' political movements (pro-choice, reform of rape law, etc.) can only describe themselves as a 'feminist' in name. The movement itself was understandably born in the absence of men (though as one professor pointed out, John Stuart Mill is often looked to for great early feminist thought). Yet today it seems many men could play active and strong roles in feminist philosophy if only the door was opened and they were welcomed in. There seems to be little or no outreach, and I think that is unfortunate.

Public Service Announcement

Over at they decided to dedicate Saturday (as the Sabbath) to non-political/news entries, often including Sufi wisdom and other religious or philosophical tidbits. I do not celebrate a particular day of the week as more holy than others, but occasionally I may lean on my religious and philosophical influences to give this blog a more well-rounded approach. In that spirit, here is one of the opening passages of Shunruyu Suzuki-Roshi's Zen Mind, Beginner's Mind:

Our 'original mind' includes everything within itself. It is always rich and sufficient within itself. You should not lose your self-sufficient state of mind. This does not mean a closed mind, but actually an empty mind and a ready mind. If your mind is empty, it is always ready for anything; it is open to everything. In the beginner's mind there are many possibilities; in the expert's mind there are few.