...for visiting this past week, and providing so much stimulating material for the benefit of readers, new and old. By clicking on the category "Guest Blogger: Richard Posner," below, you can access his postings for the past week.
--Brian Leiter
I stirred up a hornet's nest!
A response to some of these very interesting comments will be my Leiter guest blog swansong.
I do not, contrary to some of the comments, either embrace pragmatism as a dogma or (what would be quite inconsistent) consider human life to have absolute value. Remember the old slogan, "Better dead than Red?" If people would prefer to be killed by terrorists than to give up even a tiny smidgeon of their civil liberties (one comment reminds that the grand total of detainees in Lord Hoffman's case was 17 out of an English population of 60 million), I have no argument contra. I just think that almost all Americans would consider that turning back the civil liberties clock to, say, 1960 would be worthwhile if as a result some horrendous terrorist attack was prevented. I am of the same mind. I find it hard to understand the contrary position, but I would not argue against it. I would point out, however, the self-defeating character of civil liberties absolutism. If as a result of such absolutism another major terorrist attacks occurs, civil liberties are pretty sure to go out the window.
I would also argue against those who say that history shows that the threat of terrorism is much less than other threats that we have overcome. That is a misuse of history. History does not contain nuclear bombs the size of oranges, genetically engineered smallpox virus that is vaccine-proof, and an Islamist terrorist (Bin Laden) who visited a cleric in Saudi Arabia to obtain--successfully--the cleric's approval to wage nuclear war against the West.
It is one thing to set civil liberties above life in one's personal utility function; it is another to adopt an ostrich's stance with regard to the present and future threat posed by a technologically sophisticated terrorism.
I was explicit, by the way, in not criticizing the outcome of Lord Hoffman's case. I criticized only his disparagement of the terrorist threat and his astonishing contention that the continued detention of those 17 terrorist suspects has done greater harm to England than the 9/11 attacks did to the United States. He offered this contention as self-evident, citing no evidence that would support it. That kind of dogmatism justifies my speaking of a "religion" of civil liberties.
A few replies to these very interesting comments:
One comment asks whether, if people don't have free will in some strong sense, they can object to a law--say a ban on smoking--that restricts "freedom." But let me say first that I don't object to rhetorical flourishes, and so to marching under the "freedom" banner when defending a right to be left alone by the government in particular areas of liberty. In fact I find Mill's libertarian principle extremely attractive. But I don't find it attractive because I think I have free will in some strong sense of metaphysical autonomy--of exemption from cause and effect--but because I don't expect to be made better off by being told not to do things by government officials who have a much less exact knowledge of my utility function than I do. This response also relates to a comment that asked whether one can rationally complain about being "coerced" to surrender one's watch to a thief who says your watch or your life, if one has no free will. My answer is yes. Even if everything a person does is in a sense coerced, if only by character, upbringing, and other internal-seeming forms of coercion, there are certain forms of coercion that we would very much like to do without, even if the only consequence is to allow other forces to determine what, say, shall happen to my watch. Of course to speak of character as "coercive" is something of an abuse of language; and it is no part of my purpose to reform language. I assume that moralistic rhetoric, including the language of free will, serves a social function. It serves that function whether or not there is "free will" in a sense that engages the interest of philosophers and theologians.
One comment points out that my discussion of criminal responsibility treats the function of the criminal law as deterrence; it is also preventive. But there no interesting question of responsibility arises, because when crime is prevented by imprisonment there is no intervention in the thinking process and therefore no issue of free will. It is when the threat of punishment enters into the calculations and emotions that determine action that we are treating the potential criminal as a "responsible" being, meaning only by that that he has the mental capacity to add the threat to the implicit cost-benefit analysis that determines his conduct.
I said in an earlier post that “religion” should be confined to the theistic religions. That is sensible when the issue is the role of faith-based morality in public policy. But in other contexts a broader sense of the word, to denote the embrace of a system of thought that is not responsive to scientific or pragmatic argument and hence is dogmatic, and that occupies a central place in the ideology of its adherents, can be illuminating. I am increasingly struck by the aptness of the term to the type of civil libertarian who will have no truck with tradeoffs between security and liberty. The choicest recent example of this outlook happens to be found in the opinion by an English judge, Lord Hoffman of the House of Lords, in a decision invalidating a post-9/11 British law allowing indefinite detention, without a hearing, of aliens suspected of terrorism who can't be deported, either because no nation will accept them or only a nation in which they would be exposed to torture or other serious harms.
The case is A v. Secretary of State, [2004] UKHL 36, [2004] All ER(D) 271 (Dec. 26, 2004). I am not interested in whether it was decided correctly—one would have to know more about English and international human rights law than I do to opine responsibly on that question—but only in the mindset illustrated by Lord Hoffman’s opinion. Noting that “the power which the Home Secretary seeks to uphold is a power to detain people indefinitely without charge or trial,” he says that “nothing could be more antithetical to the instincts and traditions of the people of the United Kingdom.” This is a pious fraud, ignoring a long history of abuses of civil liberty by British police and security agencies, documented by the English legal historian A. W. Brian Simpson in his book In the Highest Degree Odious and by others. And Hoffman quickly retrenches by adding that the draconian laws enacted to curb the Irish Republican Army, laws similar to those challenged successfully by “A,” were justifiable because “it was reasonable to say that terrorism in Northern Ireland threatened the life of that part of the nation and the territorial integrity of the United Kingdom as a whole.” He acknowledges that “the threat of...atrocities" similar to the 9/11 attacks on the U.S. “in the United Kingdom is a real one.” But he denies that it is “a threat to the life of the nation….Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al-Qaeda.” Actuallly, there is more doubt that the United Kingdom will survive Islamist terrorism than there was that it would survive the Irish Republican Army, the aims of which were modest compared to those of Osama bin Laden and his associates and which did not aspire to the possession of weapons of mass destruction. Hoffman adds that “terrorist violence, serious as it is, does not threaten our institutions of government.” But considering how fiercely the British authorities responded to the 9/11 attacks one imagines that their response to a similar or worse attack on Britain would leave little of the institutional framework of civil liberties standing; and Hoffman surely regards that framework as an important part of “our institutions of government.”
He concludes with what has become the first article in the civil liberties common book of prayer: “The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, come not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.” What he is saying is that terrorism is not a “real threat,” but the enactments of a democratic legislature (“laws such as these”) are. Terrorism that kills thousands of people (in time, it could be millions) is less menacing than laws that cut back on “traditional laws and political values,” even if the “traditions” are only a few years old. An ordinary sensible person would think that terrorism on the scale enabled by modern technology and inflamed by religio-political fanaticism can do more harm to a nation than a law authorizing the indefinite detention of nondeportable aliens suspected of being terrorists. To think otherwise is to be in the grip of a dogma that flaunts its defiance of common sense. Credo quia absudum est.
Civil liberties have real benefits that are entitled to considerable weight whenever measures to increase public safety are proposed. But in Lord Hoffman's opinion, as in similar pronouncements by American civil libertarians, the effort is to place the existing level of civil liberties beyond pragmatic assessment by according them transcendent value compared to which considerations of physical survival are made to seem petty.
One of yesterday's comments asked me whether I believed in free will. I think of free will as being epiphenomenal. When we engage in deliberation, we are examining the pros and cons of alternative courses of action. When we complete our deliberation, either the pros or the cons will be weightier, and we go with the weightier side of the balance.
This is not to deny that people are morally and legally responsible for their deliberate actions. But I take the function of the concept of "responsibility" to be to add a thumb to the balance described in the previous paragraph. The question for the law is not whether a defendant's crime was the product of an exercise of free will, but whether attaching a penalty to the kind of conduct in which he engaged is likely to reduce the incidence of that conduct by making it more costly. If so, we say that his decision to engage in the conduct was culpable, was "his fault." We say he "could have chosen" not to engage in the conduct. But probably, if we knew everything about his psychology, we would realize that his choice was foreordained. What we mean when we say that he "had a choice" is that the penalty would have deterred most people from engaging in such behavior.
As Willard Quine put it, a choice is "free" if the individual's "motives and drives" are part of the causal chain that produces the "chosen" act, even if those motives and drives are themselves rigidly determined, perhaps as a result of a heavy threat of punishment or a powerful financial incentive. If the individual because of youth, insanity, or retardation is incapable of deliberation, his behavior is excused or his responsibility mitigated.
The upshot is that ascriptions of responsibility are based on social need (for example to deter crime) rather than on metaphysics, philosophy of mind, theology, or moral philosophy.
For a fuller discussion, see the index references to "free will" in my book The Problems of Jurisprudence (1990).
Lawrence v. Texas, invaliding state sodomy laws, was one of the decisions in which the U.S. Supreme Court cited a foreign case, and a comment asks whether I think the decision was wrong. I think it would be possible to write a respectable, narrow opinion invalidating those laws, which have come to seem ridiculous, though so inconsequential are they that it hardly seems worth the bother. The trouble is that Justice Kennedy wrote a very broad opinion, with language that armed the Massachusetts Supreme Judicial Court to create a constitutional right of gay marriage, setting off a firestorm. Many liberals now recognize that the Massachusetts court made a serious political mistake. The judges of that court (the judges in the majority, that is) might say that law must not bend to politics, but that would be a ridiculous statement when the issue is gay marriage. Neither the U.S. nor the Massachusetts constitution speaks to gay marriage. The decision that there shall be a right to such marriage is a political decision, in the sense that it rests--it has to rest, there is no other foundation for it--on the ideology, values, temperament, and so forth of the judge, rather than on some "observer independent" source of guidance. When such a decision is contrary to strong public opinion, its undemocratic character is unmistakable, and the decision arouses indignation and strengthens the opponents of (a certain kind of) judicial activism.
In light of several of the comments, I need to clarify what I mean by saying that judges can properly (in my view) cite foreign cases as source of relevant information, but not as precedents. What I mean by citing a case as a precedent is recognizing that its mere existence, as distinct from the cogency of its reasoning or the relevance of information revealed in it, is a reason for deciding the present case the same way: "a" reason, not necessarily the reason, or a controlling reason. No one supposes that a foreign decision would be a binding precedent on an issue of domestic law. My target is citing a foreign decision that, say, announces a constitutional right to gay marriage and saying or implying that the bare fact that a respectable foreign court has announced such a right is a reason why we should do likewise. That is to accord authority to a foreign decision, rather than to treat such a decision as one might treat a law review article--as a source, possibly, of excellent arguments or persuasive facts, but not as an authority.
One commenter asks, wouldn't it have been a good thing if, before the Civil War, the Supreme Court had taken note of the fact that the other nations of what we regarded as the civilized world had outlawed slavery? Could not the Court have used that international consensus to outlaw slavery in the United States? It could not have, because the preservation of slavery was the essence of the compromise that enabled the U.S. Constitution to be ratified, and because a decision outlawing slavery would have precipitated the secession of the southern states even quicker than the election of Lincoln did--he campaigned only to limit the spread of, and not to abolish, slavery. Abolition had to await the Emancipation Proclamation (of uncertain constitutionality) and the enactment of the Thirteenth Amendment.
Slavery is a good example of a practice believed to be contrary to natural law; and one comment notes the affinity between the concept of natural law and the idea of international legal norms as a source of guidance in interpreting local constitutional law. I have a qualified sympathy for the idea of natural law. If a novel case arises--one that cannot be decided by subsumption under clear statutory or constitutional language or precedent--the judge will have to look elsewhere, and if one wants to call the elsewhere "natural law" I have no strong objection, as long as it is understood not to be Thomas Aquinas's concept of natural law. The vaguer, less consistent, more anachronistic, more gap-ridden, and more absurd the orthodox materials of judicial decision (constitutional and statutory text, precedent, etc.) are, the more the judges will be on their own in deciding cases. And that is the situation in which American judges, especially appellate judges, often find themselves. Whether they draw on economic theory or political principles, or on some inarticulate notion of what is fair or right, to decide cases in the broad open area of American law, they will be going outside the positive law in any useful sense of that term--and, as I say, if you want to call where they are going natural law, that is all right with me. Yet in the context of pre-Civil War U.S. law, natural-law arguments for the unconstitutionality of slavery would have collapsed in the face of the constitutional text and history and the political balance of power. And given the cultural heterogeneity of the world, we must recognize, in very sharp contrast to advocates of Catholic natural law, that natural law is primarily a national rather than an international body of thought.
Several comments ask how one state should treat the decisions of another state, and how a court should treat its old decisions. I recognize analogies here to the citation of foreign courts, but the differences seem to me more important. A court in one state will not feel itself bound by a decision of another state, but will recognize that decision as an authority, and for the very good reason that the legal cultures of the states are, today at any rate, pretty similar in most areas. Similarly, a court will not consider it absolutely bound by its old decisions, but will treat them as authorities, in part because there is a considerable continuity in legal culture within a state over time, and in part because of the reliance interests that judicial decisions generate.
The U.S. Supreme Court is increasingly citing decisions by foreign courts. I don't like the practice, for a variety of reasons that I'll sketch briefly. But I must first make clear that I don't object to all such citations. For example, sometimes foreign law supplies the rule of decision for a case in an American court; or sometimes a foreign judicial opinion contains an interesting argument or datum worth citing with credit to the original. My objection is to citing a foreign decision as authority in a case involving U.S. domestic law, e.g., the U.S. Constitution; in other words as a precedent, that is, as a reason for following it that is independent of its intrinsic persuasiveness; as evidence, in short, for a budding international consensus that should influence U.S. law.
My objections are numerous but I am going to mention just ones that relate to what I said yesterday, in my response to comments on my first posting, about the judicial process. The first is that it is undemocratic to subject Americans to even the limited rule of foreign courts, except to the extent that treaties or other conventional sources of international law authorize the delegation of lawmaking to foreign bodies. There is a profound political difference between even an appointed, life-tenured U.S. federal judge and a judge of a foreign country. The U.S. judge is appointed by an elected official (the President) and confirmed by an elected legislative body (the Senate) and is subject to removal by impeachment, and his court is subject to budgetary and other controls and influence by Congress. If he is a lower-court judge, he is influenced by the President's authority to nominate him to a higher court. He is in short a part of a system of checks and balances; he has a degree at least of democratic legitimacy. A foreign judge is not subject to any political process within the United States.
Second, legal principles are not instantiations of a universal moral law, but the product of local political, cultural, and historical circumstances. Without a deep study of foreign legal, political, and social systems--a study that few U.S. judges or justices, or for that matter academics, have made or are capable of making--it is impossible to determine whether a foreign decision on gay marriage, abortion, hate speech, capital punishment, religious establishments, etc. is the product of a reasoning process, values, ideology, or other circumstances that are the same or similar in the United States. Gay marriage is the most obvious current example. The opposition to it in the United States is largely though not entirely religious in origin, and so in countries that are much less religious than the U.S. opposition is muted; but this says nothing about whether the U.S. position is "wrong" because out of step with these other countries.
Third, the citation of foreign decisions is a form of figleafing, reflecting the efforts of opinion writers (often law clerks still suffering from the misconceptions of law students) to escape responsibility for stating the true grounds of decision. A judge or justice who votes in favor of homosexual rights is reluctant to admit that he is doing so not because the Constitution commands that he do so but because he is sympathetic to homosexuals or minorities in general, or dislikes the motivations or beliefs of the people who object to homosexual rights, or never misses an opportunity to invalidate unequal treatment, or thinks homosexual rights the new liberal frontier. If instead he can point to an emerging international consensus (as the Supreme Court did in invalidating capital punishment of 15 year olds), he can minimize the appearance of subjective decisionmaking by pointing to something outside his personal values, politics, emotions, and ideology. It would not be figleafing if American judges really were willing to take their cues from foreigners, but I don't believe it. Almost the whole world prohibits hate speech, but in the U.S. it is considered constitutionally privileged and the fact that we are out of step with the rest of the world seems not to bother any of the judges who cite foreign decisions.
I cannot possibly do justice to these comments. Let me make just a few points in response to some of them, trying to group them thematically:
1. I think it important, at least for purposes of the subject of my blog on faith-based morality, to confine "religion" to theism. There are important nontheistic religions, such as Buddhism, and systems of thought, such as Communism in its heyday, that occupy the same position in the minds and emotions of adherents that religion does. In the United States, however, most religious people are theists, and the issue of religion in public policy is about theistic religion in public policy.
2. I am not an agnostic, if by that is meant (and this is the sense I have of the term, though it may be an idiosyncratic sense) someone who is perplexed as to whether or not there is a God; who regards this as an interesting question to which he happens not to have the answer. I am someone who simply doesn't feel the presence of God in my life. That I think is the typical state of the nonreligious person, and corresponds to what I assume is the feeling of a eunuch about sex. The eunuch knows that sex is important to many people, but he doesn't have any feeling of that importance. Sex doesn't exist for him. God doesn't exist for me. That doesn't mean that He doesn't exist. My understanding of Nietzsche's dictum that "God is dead" is not that it is a metaphysical statement, a statement of atheist doctrine, but that it is a statement that God is as if dead, to educated Europeans of Nietzsche's era. I think that whether or not God is dead for one depends on upbringing and temperament, but not on arguments.
3. A fascinating question about religion and public policy that I did not address is what actual difference the religiosity of the American people makes to American law. If you look at a nation, such as Denmark (or indeed at almost any European nation west of Poland) or Japan and other east Asian nations, in which the Gallup Poll records very low levels of religious belief, you will see that their legal systems are very much like ours so far as substantive principles are concerned. What is true about the United States is that certain issues agitate our legal system for religious reasons, such as abortion, stem-cell research, gay marriage, pornography, prayer in the public schools, public recognition of the Ten Commandments, financial support of parochial schools (as by means of a voucher system), the teaching of evolution. Yet as a result of the Supreme Court's rather heavy-handed enforcement of the Constitution, most of these issues when they get into court as so often they do are resolved as they would be by the ordinary political processes in more secular nations. The startling result is that the most salient difference, so far as the intersection of religion and public policy is concerned, between the United States and the more secular nations is that many of them have established churches! (Hume favored established churches because he thought they would deaden religion belief. He was right, at least in the Western European context.)
4. I really do take the view--this is closely related to point 2 above--that the sort of political discussion in which political philosophers, law professors, and other intellectuals engage is neither educative nor edifying; I also think it is largely inconsequential, and I am grateful for that fact. I think that what moves people in deciding between candidates and platforms and so on certainly includes facts (such as the collapse of communism--a tremendous fact), as well as a variety of "nonrational" factors, such as whom you like to hang out with--I think that's extremely important in the choice of a political party to affiliate with. When a brilliant philosopher like Rawls gets down to the policy level and talks about abortion and campaign financing and the like, you recognize a perfectly conventional liberal and you begin to wonder whether his philosophy isn't just elaborate window dressing for standard left liberalism.
5. I think that people are smart about their own interests and can also make fairly reliable judgments about the character and leadership abilities of political candidates, but that they are hopeless when it comes to understanding domestic or foreign policy issues of even average difficulty. I think this is true in all democracies. But I don't think it's anything to despair about. The government is run by a governing class consisting largely of professional politicians, civil servants, big shots from the private sector who take temporary jobs as senior appointed officials, and lobbyists and other representatives of interest groups. This class understands the issues. If it screws up badly, as it often does because of the intrinsic uncertainties of governance, it is punished in elections. In effect the people have a veto over their rulers, and this serves as an important constraint on runaway self-interest, exploitation, and corruption by our rulers. I do not think we would do better to have a government run by academics, which is the implicit model of government held by political philosophers, law professors, and the like. Would we really have done better over the last half century with Presidents Stevenson, Humphrey, a second-term Carter, Mondale, and Dukakis? And haven't the universities, in their overwhelmingly liberal orientation (in most fields relating to public policy), forgotten John Stuart Mill's dictum that ideas become flabby and stale when they are not exposed to vigorous challenge?
6. Finally, I can't resist responding to the two commenters who asked me to identify the principal misconceptions of first-year law students. There are two, and they are closely related. The first is the idea that the law exists somewhere, in a book presumably (or, to be modern, in an electronic database), and that what you learn in law school is how to find the book, and that what law professors do, to justify making you sit in class for three years, is hide the book from you. The second misconception is that legal reasoning is something special, subtle, esoteric, which will enable you once you have learned it to answer a question in a way that would make no sense to a lay person. In other words--and this is what joins the misconceptions--law is a mystery.
But what law really is is a tool that law school shows you how to use. It is a rhetoric, a vocabulary, a tradition, a set of rules and conventions, which you can use to achieve practical results, which are the only results worth having. So if you're a judge--which sounds like something special, something far removed from the real world of nonlawyers, but is not, or should not be--you are given problems that you try to solve in a way that will be realistic, having regard for the issues at stake, the relevant moral values of your society, the interest in providing guidance for the future, the goals behind applicable rules or standards, the value of a certain kind of neutrality or impersonality, and perhaps other considerations both particular to the case at hand and systemic. You should be able to explain your decision in a way that would make sense to a lay person, but need not convince him, because the conventional legal materials of decision are often indeterminate when applied to a case that has reached the appellate level, and then the decision will reflect values or experiences of the judge that are not universally held in the society, although presumably the decision will fall within some general range of reasonableness or acceptability.
In short, it should be possible to explain everything in law in perfectly simple, everyday, common sense terms. That should be the law student's, the lawyer's, and the judge's creed.
I've gone on long enough, it's late, and I'll stop. Tomorrow I'll discuss why it is, in my opinion, a mistake for American courts to cite as precedent decisions by courts in foreign countries.
Brian said I’m an atheist, but the word has two distinct meanings. The first is a person who does not have a sense that there is a God—who, in short, is not a religious person. The second is a person who adheres to the doctrine that there is no God. That is a metaphysical proposition that does not interest me. You cannot convince a religious person that there is no God, because he does not share your premises, for example that only science delivers truths. There is no fruitful debating of God’s existence.
I note that President Bush, in his press conference following his reelection, said, in answer to a question about the increased political activism of religious people, that in America not only is anyone free to worship as he pleases, but also anyone is free not to worship at all, and the people who choose not to worship are just as patriotic as the worshippers. Well, I am one of thse nonworshippers, but I have no interest in promoting a doctrine of atheism.
I read recently, in a book on Locke—who grounded his egalitarianism in Christianity—that “Modernity has a secular self-understanding that tends to deny religious doctrine a role in political justification.” Let me take this quotation as my text, and remind you of six actual or hypothetical cases involving religion and the Constitution:
1. The peyote case—an Indian tribe uses peyote in its religious ceremonies; the state outlaws peyote.
2. The Amish case—the Amish don’t want their kids to attend high school, in violation of the state’s compulsory schooling law.
3. The Ten Commandments case—is it lawful to post the Ten Commandments in a courthouse or other public building?
4. May a state ban the teaching of evolution, or require teaching of “creation science,” in its public schools.
5. Should the fact that most opposition to abortion is based on belief in ensoulment invalidate laws restricting abortion on demand?
6. Should the fact that much of the opposition to gay marriage rests on religious belief invalidate laws refusing to recognize such marriages?
In the first two cases, religion is seeking an exemption from secularly motivated laws of general applicability. In the next pair of cases, the state is being asked to enact, in effect, a religious dogma. The last two cases are the interesting ones. A law prohibiting abortion or gay marriage is not an enactment of religion in the same sense as posting the Ten Commandments or teaching divine creation, because those prohibitions do not mention religion or contain a religious message; they are merely inspired by religion. It would be a leap to regard them as “establishing” religion. And, in my view, a leap too far.
The leap would imply that the only morality that should guide public policy in today’s United States
If morality, or at least a large part of the moral domain, lives below reason as it were, isn’t the practical consequence that morality is simply dominant public opinion? And so if the population is religious, religion will influence morality, which in turn will influence law, subject to constitutional limitations narrowly interpreted to protect the handful of rights that ought not to be at the mercy of the majority.
Rawls and others have thought that religious beliefs shouldn’t be allowed to influence public policy, precisely because they are nondiscussable. But this view rests on a misunderstanding of democracy. Modern representative democracy isn’t about making law the outcome of discussion. It is not about modeling politics on the academic seminar. It is about forcing officials to stand for election at short intervals, and about letting ordinary people express their political preferences without having to defend them in debate with their intellectual superiors.
If this analysis is sound, then we see that the statement that “Modernity has a secular self-understanding that tends to deny religious doctrine a role in political justification” depends on whether modernity is equated with the dominance of the secular. The statement is thus entirely circular.
I welcome comments, as well as suggestions of additional topics for me to address during my guest week.
I thank Brian for his gracious introduction. I will begin blogging shortly after midnight, and--since Brian called me an atheist--my first subject will be faith-based morality as a basis of law.
I am posting this unnecessary preface merely to test whether I can master the basic technical requirements for posting on Brian's blog.
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