Thanks to McEvoy for his clarifications.
In a message dated 3/6/2016 4:40:48 A.M. Eastern Standard Time,
donalmcevoyuk@xxxxxxxxxxx writes: "It is also false that a "solution to a
problem is
[only] judged a good one in terms of its usefulness", for truthfulness
is
not equivalent to usefulness, and we often seek true solutions."
Thanks to McEvoy for his clarifications, as I say, -- and especially for
his point as to where he sees the centrality of concepts (qua 'tools')
lies.
For the record, though, I have explored two keywords that may relevant
as
we approach philosophy of law:
-- legal moralism
-- moral judicialism
More about them below. McEvoy's point about a solution -- a judge, say
--
may seek is a true one, rather than a 'fair', say, one, may be
considered
vis-à-vis these two key terms.
In Patmalniece's case we may consider the implicatures of:
i. The decision was wrong.
ii. The decision was unfair.
iii. The decision was unlawful.
iv. The decision was immoral.
and all their opposites of course!
We may define "legal moralism" as the philosophical doctrine according
to
which the law can legitimately be used to prohibit behaviours that
conflict
with a moral judgment.
The most famous legal moralist is alleged to be Patrick Devlin.
If A and B try to create a "society" in which there is no fundamental
agreement about what is "good" A and B will fail.
If, having based A's and B's society on a common agreement, the
agreement
goes, the society of A and B will disintegrate.
In fact, Oxonian philosopher H.L.A. Hart has pointed out that Devlin
OVERstates (Hart is an Englishman so he would say that, wouldn't he?)
the
extent
to which preservation of a shared morality is necessary to the
continuing
existence of a society.
Devlin attempts to conclude from the necessity of a shared morality that
it is permissible for the state to legislate morality. But Hart argues
it
is
surely implausible to think that a deviation from agreed morality is
something which, like treason, threatens the existence of society. (Hart
1963,
p. 50).
It may be claimed against moral legalism that while enforcement of
certain
social norms protecting life, safety, and property are likely essential
to
the existence of a society, a society can survive a diversity of
behaviour
in many other areas of moral concern-as is evidenced by the
controversies
in the U.S. surrounding abortion.
Then there's judicial moralism.
Perhaps the first judicial moralist was CLEMENTE VII:
"The worst edict that can possibly be imagined: ann edict that permits
liberty of conscience, the worst thing in the world."
Pope Clement VIII on the Edict of Nantes, 1598, by which King Henry IV
of
France declared that French Protestants, the Huguenots, were free to
practice their religion. The edict was revoked by King Louis XIV in 1685.
Another claim is by Montaigne:
"We cannot be held responsible beyond our strength and means, since the
resulting events are quite outside of our control and, in fact, we have
power
over nothing except our will; which is the basis upon which all rules
concerning man's duty must of necessity be founded. -- Michel de
Montaigne,
Essays, "That our actions should be judged by our intentions," Book One,
Chapter 7, 1580.
Then there's Edward Gibbon, who studied the Romans:
"Whenever the offense inspires less horror than the punishment, the
rigor
of penal law is obliged to give way to the common feelings of mankind."
Also Sir James Frazer, "Psyche's task" (1909):
"Surely it is better for the world that men should be right from wrong
motives than that they would do wrong with the best intentions. What
concerns
society is conduct, not opinion: if only our actions are just and good,
it
matters not a straw to others whether our opinions are mistaken."
[This above may relate to a solution being "true but wrong" or "false
but
right", but we have to explore this].
Doyle deals with this in "The problem of Thor Bridge" Sherlock Holmes
1927
story:
"And in daily contact with her without feeling a passionate regard for
her. Do you blame me, Mr. Holmes?"
"I do not blame you for feeling it. I should blame you if you expressed
it, since this young lady was in a sense under your protection."
The crucial role of self-exaltation underlies the way that those with
opposing opinions are viewed.
It is not sufficient, for example, to depict those who believe in
preserving peace through military deterrence as mistaken, factually
incorrect,
illogical in their analysis, or dangerous in their conclusions.
All of those things, even if TRUE (to use McEvoy's characterisation
above),
would still leave them on the same moral plane as the anointed
visionaries
and would leave both subject to the same requirements of evidence,
logic,
linguistic botany, and conceptual analysis (the latter two, Grice's
weapons), as their arguments are laid before others to decide.
What is necessary, from the standpoint of self-exaltation, is to depict
proponents of military detererence as not "really" (if one may use a
"trouser
word", "sexist" as they sound, as Grice puts it -- "But then Austin, who
coined 'trouser word' was an artless sexist, and not even my friend!")
being
for peace, as being either bloodthirsty or acting as venal
representatives
of special interests who desire war for their own ends.
This is the view expressed by Thomas Sowell in The Quest for Cosmic
Justice.
If there were a modern Spanish Inquisition in America today, it wouldn't
be Bob Jones rounding up Catholics.
It would be so-called American liberals (as opposed to English liberals,
which are another sort of animal) rounding up right-wingers and putting
them
on trial for hate crimes.
The American liberal Torquemadas would be smug and angry and
self-righteous.
And when they were done, they would proudly announce they had finally
banished intolerance.
Such is the view of Ann Coulter in "Slander, Liberal Lies About the
American Right".
It follows that, as a historian has very wittily been called an inverted
prophet, the professor of LAW is the INVERTED MORALIST, and therefore
even
JURISPRUDENCE in the proper 'way' to interpret this, i.e., the doctrine
of
the rights that may be asserted, is INVERTED MORALITY, in the chapter
where
it teaches the rights that are not to be violated.
The concept of wrong and of its negation, right, which is originally
MORAL,
become JURIDICAL by shifting the starting-point from the active to the
passive side, and hence by inversion.
This, together with Kant's theory of law, which very FALSELY (to use the
opposite of McEvoy's word above, 'true') derives from his categorical
imperative the foundation of the State as a moral duty, has even in
quite
recent
times occasionally been the cause of that very strange error, that the
State
is an institution for promoting morality, that it results from the
endreavour to achieve this, and that it is accordingly directed against
egoism.
This is the view of Arthur Schopenhauer in The World as Will and
Representation.
More than half the federal offenses proposed, and more than three out of
five of the offenses actually enacted into law, lack an adequate
criminal-intent requirement.
Criminal intent -- or, in lawyer-speak, mens rea -- is a fundamental and
an
essential element of justice in criminal law.
Any new or amended criminalization must have an adequate criminal-intent
requirement.
And Congress must take steps to ensure that all criminal penalties are
proportionate to the harm and WRONGFULNESS of the prohibited conduct.
Such is the view of Brian W. Walsh and Tiffany Joslyn in their "Time to
Arrest the Federal Criminalization Spree," in The Wall Street Journal.
Morality can be distinguished from LAW or even from JUSTICE (even if
Plato
and Rawls, who philosophised on justice thought of this realm as
belonging
to moral philosophy) according to the way in which the latter is
publicly
enforced and sanctioned through the power of the state, while the former
is
regarded as a private matter where wrongs are to the moral discredit of
a
person but not such as to allow legal recourse for those wronged.
Complaints are often made about the absence of such a distinction, that
virtue or morality can NOT be or ought not be legislated, or about its
presence, that the decline of private morality calls for a public and
legal
remedy.
This conceptual distinction is real enough, and its presence reveals
another boundary between polynomic domains of VALUE (where 'value' is to
be
understood as conceived by Grice in "The conception of value" -- Grice
distinguishes between the object concept of value and the process
CONCEPTion of
value).
The difference between morality and justice comes not from the
difference
between actions and consequences (as between morality and ideal or
euergetic ethics) but from the difference between motives and actions.
As Kant noted, the worth of moral action is in the intention, not in what
is actually done.
The imperative of morality is first of all to act with good will.
Even the best of good will, however, does not necessarily produce right
action -- the saying is that the path to hell is paved with good
intentions
(implicature alert: as is the path to purgatory and paradise -- but who
cares?)
And even ill will does not necessarily produce wrong action -- it is
really
an ad hominem fallacy to evaluate an action on the basis of an agent's
motive, even if Grice was obsessed with m-intentions -- cfr.
act-utilitarianism vs. rule-utilitarianism.
The estimation of justice does not primarily concern intentions but what
actually is done.
There is no breach of justice unless some wrong of negligence, violence,
or
fraud has been committed (in law the actus reus).
M-Intention (to use a Griceian key term) then may become an issue in
judging the culpability or severity of the wrong (the mens rea), as
between
various degrees of murder, where intention, malice, and forethought
progressively increase the severity of the crime (to voluntary
manslaughter, second
degree murder, and first degree murder, respectively).
If no wrong is committed, then it is not an issue of justice and motives
(and Griceian m-intentions) are irrelevant.
Even undoubted wrongs of action may be "merely" (to use McEvoy's
favourite
adverb) MORAL if they are not very severe or are intrinsically difficult
to prove.
Willful breach of an informal, oral promise for no good reason will
always
be a moral wrong, but only if some financial loss (or damage to public
standing) or physical (or even severe enough psychological) injury
results
will
it be a breach of an actionable "oral contract" and so a judicial wrong.
There are legal rules about the factors (such as the presence of a
"consideration", to use one of McEvoy's pet words, quoting from Lord
Walker) that
must be involved if an enforceable contract is judged to exist.
Breach of promise will always be morally actionable in the sense of
voiced
moral reproach or damage to personal relationships.
The ultimate moral evaluation of an action concerns the M-intention, as
Grice calls it.
Many actions innocent in themselves may be immoral because of the motive.
That motive may be difficult for other persons to know.
It may even be impossible for others to know.
Thus, the emphasis (as in the example cited by Jesus of adultery
committed
in the heart -- Matthew 5:27) is that morality is morality even if wrongs
are known only to the agent ("and to God," Geary adds otiosely, since,
after
Grice, 'be as informative as is required', and assuming God -- if not
Grice -- is omniscient, all is known to God).
The moral sanction of religion, therefore, is a much different matter
than
the MORAL sanction of LAW (Hart, who, unlike Grice, was a legal
positivist,
might disagree -- but surely Hart's is not the last word in
conceptual-analytic philosophy of law -- vide his postscript to his opus
magnum, The
concept of law.
The right of privacy (and the right against self-incrimination, where a
judicial wrong has been committed and the state must prove culpable
motive)
protects the individual's self-knowledge of motive from the law and the
state.
Individuals are properly at legal liberty to pursue actions that are not
judicial wrongs for good reasons, bad reasons, or no reasons; and the
morality of those actions is a private, personal matter, or a matter of
interpersonal judgment on a level of "mere" (again to use McEvoy's
favourite
adjective) morality.
The absence of a distinction between morality and justice is,
paradoxically, a kind of moralism. Indeed Speranza calls it Speranza's
Paradox.
The principle that all moral wrongs should be legally sanctioned as
judicial wrongs, erasing the distinction between morality and justice,
may
be
called "judicial moralism", our second key term (after legal moralism).
Usually this means generalizing the morality of intention into the
morality
of action rather than the opposite, which would simply evaluate actions
as
right or wrong, without qualifying the judgment by any consideration of
motive or intention.
The fallacy of over-generalized intention should however be carefully
examined.
In tort law there is "strict liability," and some legal scholars,
including Richard Epstein, believe all torts should be interpreted
according to
strict liability, eliminating the need to prove negligence, which
otherwise is
necessary to prove a tort (i.e. a civil wrong that is not the result of a
breach of contract).
This is not right (The Grice is not right, as it were).
But what is much worse and more dangerous is that strict liability would
also make things much easier for prosecutors in criminal cases; and it is
now
becoming common for laws to be passed that ignore motives and intentions
-- the classical "mens rea" -- of "When in Rome" -- the "guilty" or
"actionable" mind.
Thus, "money laundering" laws, which require reporting to the government
the transfers of certain amounts of cash or bearer financial
instruments,
although supposedly written to catch drug dealers and their agents, are
typically enforced against innocent people who are either ignorant of
such
an
obscure law or who do not believe their financial privacy in the course
of
innocent transactions is any of the government's business.
Also, there have been several recent cases where small businesses making
cash deposits at their banks, where their insurance will not cover them
carrying more than $10,000 in cash, have had their bank accounts seized
on the
principle that they are not allowed by the money laundering laws to
"structure" their deposits in increments smaller than $10,000, when the
requirement
to report cash desposits kicks in.
But it doesn't matter how innocent the money or the motives are.
This trend in criminal law is seen, of course, by some Griceians who
indulge in figures of speech as "a monstrous and despicable act of
tyranny
and
injustice".
Fortunately, the courts sometimes revoke these unjust seizures.
But other judges are perfectly willing to wave them through, as though
grotesque violations of natural justice and age-old principles of the
common
law are of no concern.
These seizures are also symptoms of the the misuse of "civil forfeiture"
law, where property can be seized without criminal charges ever proved or
even filed, violating the 14th Amendment ("the one following the 13th
Amendment," as Geary reminds us).
Nevertheless, it has become common enough, especially in Federal law,
that
even "The Economist" (in "Too many laws, too many prisoners") has taken
note of it.
In many federal criminal cases, the common-law requirement that a
defendant must have a "mens rea" -- to use the Roman concept -- (i.e. he
must or
should know that he is doing wrong) has been weakened or erased.
Even Geary's students know the ancient legal principle,
"No crime without criminal intent."
The principle in Latin is, as Geary reminds us:
Actus non facit reum, nisi mens sit rea.
The act does not make guilt [reum], unless there is a guilty [rea] mind.
But some judges seem to be ignorant of this.
Since they cannot actually be ignorant of it, their criticis think some
judges willfully fail to employ the tools the law provides to combat the
unjust laws that many of them know are enforced through their own
courts.
The whole notion of "strict liability crimes" is improper and unjust.
On 27 September 2011 The Wall Street Journal featured a long article on
the erosion of the "mens rea" principle of justice with a front page
article.
As Federal Crime List Grows, Threshold of Guilt Declines, the title went.
The continuation of the column was headlined, "Age-Old Legal
Principle Declines."
The Journal says that lawmakers on both sides of the aisle worry about
the
weakening of mens rea.
However, this hasn't prevented Congress from continuing to pass laws that
some see as defective in this respect, or prevented the Courts from
upholding them.
One Court ruled that "knowing" conduct in a firearms case simply meant
the
defendant "knew" he had the firearms, not that it was illegal for him to
possess them.
This is seen by some as pure sophistry -- and not of the Griceian kind --
he preferred the spelling 'sophistication' --, apparently from judges
willing to void traditional principles of justice just so the government
can
create criminals out of people who have insensibly run afoul of a vast
and
incomprehensible United States Code (or simply the obscure regulations
published in the infinite pages of the Federal Register).
The Journal article, however, to use Griceian parlance, implicated,
rather
than stated, that this trend is not simply contrary to an "age-old legal
principle," but that it is productive of multiple cases of grotesque
injustice.
This could well be one of the fruits of the judicial positivism (a form
of
moral heteronomy) as held by Hart that is taught in the law schools, that
(1) there is no law but "positive" (i.e. statutory) law, and
(2) "justice" is the practice of the courts, i.e. whatever it is that the
courts happen do.
Lest anyone think that this is only a problem in the United States, and
that "The Economist" can look down on these Yankee follies from the
superior
perspective of English law, and even more superior perspective of Roman
law, the same trend is evident in its own land, the place of the very
origin
of the common law.
A former soldier, Paul Clarke, found a bag in his garden containing a
shotgun.
He brought it to the English police station and was immediately
handcuffed
and charged with possession of the gun.
At his trial the judge noted:
"In law there is no dispute that Clarke has no defense to this charge."
The judge went on:
"The intention of anybody possessing a firearm is irrelevant.
Clarke was sentenced to 5 years in a cell in a prison.
A public outcry eventually won his release ("Two Cautionary Tales of Gun
Control," Joyce Lee Malcolm, The Wall Street Journal).
Since "in law" Clarke did have a defense, namely the absence of "mens
rea", we must consider what sort of fool or tool is this judge. Was he
trying to
solve a true problem via a true solution, or what? Did he ever hear of
'conceptual analysis'?
But we do owe him credit for a clear statement of the fallacy that he
promulgates, namely that "the intention of anybody possessing a firearm
is
irrelevant."
This is strict liability with a vengeance, in a case where "possession"
has
itself been interpreted in a way that defies common sense -- Grice's
third
weapon, along with linguistic botany and conceptual analysis (that
delivers implicature), vide: "Lay vs. learned".
Perhaps and English police person cannot be expected to exercise common
sense, but it is certainly the office of a competent English judge to
supply
any deficiency.
Instead, this English judge may be seen as both morally and legally
incompetent, in line with something we see more of in law these days,
which is
the mindless application of senseless rules, by people who often seem to
be
proud and self-righteous about what they are doing.
("Especially if they use a wig," Geary adds).
Judges cannot plead that their "hands are tied" by the present state of
law, for they have multiple levels of recourse, certainly in American
law,
when dealing with injustices like "strict liability crimes":
-- Bite the bullet and rule that the law is unconstitutional.
-- Rule that the law cannot be enforced without taking the "mens rea"
into
account.
-- Hand down a directed verdict of not guilty.
-- Dismiss the case with prejudice, so that it cannot be refiled.
-- Instruct the Jury that it has the power to return a verdict of not
guilty if they think that the law violates a just requirement of "mens
rea".
-- Dismiss the case without prejudice, which means it could be refiled.
-- Recuse himself, so that the case will pass to another judge.
If a judge is fearful for his career, the first two or three, or even
four, alternatives may frighten him.
A judicial conduct authority may sanction him.
In Griceian fiction at least (cfr. Griceian non-fiction), we sometimes
see
the first alternative, such as when the beloved Ray Walston, playing Judge
Henry Bone on the television series "Picket Fences", was willing to rule
on
the constitutionality of laws that had already been accepted as
constitutional by the Courts.
The fearful judge (which is what we expect from the judge qua
bureaucrat),
however, can always take the sixth alternative and recuse himself
without
expalantion.
The last we heard, there were at least 50 federal judges refusing to
take
non-violent drug cases.
Unfortunately, what is more common these days is that some judges enter
into the spirit of tyranny and politically motivated revenge, regardless
of
the requirements or sound traditions of justice or even conscience.
Some judges are willing to distort law, righteousness, and justice in
order to help the prosecution, behind which there is a political
antipathy
towards actions that are not wrongful, sometimes on the pretext that
destroying
people's lives may be a social good.
Judicial moralism as the generalization of intentions into all of
morality,
although just as vicious as the "strict liability" generalization of
actions over intentions, has historically been much more common.
Religions, if not Ancient Roman religion, but that instituted in Rome by
St (as he then wasn't) Peter, have typically been guilty of such
moralism,
and have controlled or pressured political authorities to enforce it
(Verdi
hated the Papacy!)
But there has been no lack of purely secular ideologies, from the French
Revolution to Communism to present Political Correctness, that have tried
to
enforce their views as a political program apart from any religion.
Judicial moralism thus tends to be a characteristic of both religious
moralism and political moralism.
Furthermore, each characteristically becomes a way of morally judging,
not
just actions and even intentions, but BELIEFS, a 'different psychological
attitude altogether,' as Grice puts it.
That is because good or bad intentions always go with beliefs about what
is
good or bad.
Since judicial moralism collapses intention and act, the actual
requirement
of justice to act justly is transferred to the mental state (where
'mental' is used strictly and literally, not implicatural -- "My dog has
been
behaving mentally of late.")
What is the proper moral issue in that state is good or bad will.
But for judicial moralism more is required than that, since good will
doesn't have anything like the content, structure, or definiteness of a
good or
bad act.
Consequently, judicial moralism focuses on the BELIEF that condition the
will, something as definite in the MENTAL STATE as the act was
externally.
Thus the moral requirement becomes one of correct belief -- the actual
meaning of the Greek word , orthodoxía -- orthodoxy -- as the sign of
good
will.
Incorrect belief, , heterodoxía -- heterodoxy -- then obviously signifies
ill will, and all the commendation and reward or condemnation and
punishment
that should only focus on good or bad deeds instead becomes focused on
these correct or incorrect beliefs.
(G. P. Baker thought he was insulting Grice when he said that he was the
greatest heterodox philosopher who had turned heterodoxies into
orthodoxies!)
And we all know how heresy, , haíresis, is worse than simple disbelief --
since the former is a kind of fraud, while the latter is only ignorance
--.
So those who knowingly defy orthodoxy should be punished severely indeed.
As it happens, "heresy," , itself means "choice" or "taking for oneself,"
which "implicates" will, wicked will.
In denying judicial moralism some affirm that it cannot be a moral duty
to
believe any particular propositions.
This is the moral basis of the principles of freedom of conscience and
free
speech.
Morality requires us to mean well and to do what is right, but believing
things in good will and good faith is about TRUTH (to use McEvoy's
qualification above), which has its own standards of evidence and
justification, not
about meaning well or doing anything, let alone choosing a belief.
As Thomas Jefferson once said to his wife:
"The opinions and belief of men depend not on their own will, but follow
involuntarily the evidence proposed to their minds.
It cannot be a duty to believe what is true because whatever is believed
is
already believed to be true.
The evidence, experience, or authority upon which one's beliefs are based
are reasonably to be changed, not by some independent act of moral will,
but
by demonstrably better evidence, experience, or authority.
And it is always a good question just what is true and just what is
better
evidence, experience, and authority.
As Socrates, before Jefferson, said, but in Greek (and thus to a more
restricted audience -- "Not then! Nobody spoke English then!" Geary
protests):
"for clearly, if I learn better, I shall cease to do what I am doing
unwilling" [Apology, 26a].
Meanwhile, "I will obey the god rather than you" [29d].
The only thing that can be a duty is to try and find out what is true
and
then to be steadfast in the TRUTH (to use McEvoy's criterion for a
solution
as cited above -- one of the criteria, strictly) as that is understood.
But that very steadfastness may be perceived as wickedness by others who
are differently persuaded by their understanding, as the implicature may
go.
Cheers,
Speranza
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