A Philosopher's Blog

The Worst Thing

Posted in Metaphysics, Philosophy by Michael LaBossiere on August 29, 2014
Anselm of Canterbury was the first to attempt ...

Anselm of Canterbury (Photo credit: Wikipedia)

It waits somewhere in the dark infinity of time. Perhaps the past. Perhaps the future. Perhaps now. The worst thing.

Whenever something bad happens to me, such as a full quadriceps tendon tear, people always helpfully remark that “it could have been worse.” Some years ago, after that tendon tear, I wrote an essay about this matter which focused on possibility and necessity. That is, whether it could be worse or not. While the tendon tear was perhaps the worst thing to happen to me (as of this writing), I did have some bad things happen this summer and got to hear how things could have been worse. Since it seemed like a fun game, I decided to play along: when lightning took out the pine tree in front of my house I said “why, it could have been worse” and then was hit with inspiration: what would be the worst thing? The thing that which nothing worse can be conceived.

I can say with complete confidence that there must be such a thing. After all, just as there must be a tallest building, there must be the worst thing. But, of course, this would not be much of an essay if I failed to argue for this claim.

Interestingly enough, arguing for the worst thing is rather similar to arguing for the existence of a perfect thing (that is, God). Thomas Aquinas famously made use of his Five Ways to argue for the existence of God and most of these arguments relied on a combination of an infinite regress and a reduction to absurdity. For example, Aquinas argued from the fact that things move to the need for an unmoved mover on the grounds that an infinite regress would arise if everything had to be moved by something else. A regress argument with a reduction to absurdity will serve quite nicely in arguing for the worst thing.

Take any thing. To avoid the usual boring philosophical approach of calling this thing X, I’ll call this thing Troy. If Troy is the worst thing, then the worst thing exists. If Troy is not the worst thing, then there must be another thing that is worse than Troy. That thing, which I will call Sally, is either the worst thing or not. If Sally is the worst thing, then the worst thing exists and is Sally. If it is not Sally, there must be something worse than Sally. This cannot go on to infinity so there must be a thing that is worse than all other things—the worst thing. I’ll call it Dave.

The obvious counter is to throw down the infinity gauntlet: if there is an infinite number of things, there will not be a worst thing. After all, for any thing, there will be an infinite number of other things. As Leibniz claimed, the infinite number cannot be said to be even or odd, therefor in an infinite universe a thing could not be said to be worst.

One might be inclined to reject the infinity gauntlet—after all, even if there is an infinite number of things, each thing would stand in a relation to all other things and there would thus still be a worst thing.

Another obvious counter is to assert that there could be two or more things that are equally bad—that is, identical in their badness. As such, there would not be a worst thing.  A counter to this is to follow Leibniz once again and argue that there could not be two identical things—they would need to differ in some way that would make one worse than the other. This could be countered by asserting that the two might be different, yet equally bad. In this case, the response would be to follow the model used in arguing for the best thing (God) and assert that the worst thing would be worst in every possible respect and hence anything equally as bad would be identical and thus there would be one worst thing, not two. I suppose that this would have some consolation value—it would certainly be a scary universe that had multiple worst things.

Of course, this just shows that there is something that is worse than all other things that happen to be—which leaves open the possibility that it is not the worst thing in another sense of the term. So now I will turn to arguing for the truly worst thing.

Another way to argue for the worst thing is to use the model of St. Anselm’s ontological argument. Very crudely put, the ontological argument works like this: God is that which nothing greater can be conceived. If God only existed as an idea in the mind, a greater being can be conceived, namely God existing for real. Thus, God must exist.

In the case of the worst thing, it would be that which nothing worse can be conceived. If it only existed as an idea in the mind, a worse thing can be conceived, namely the worst thing existing for real. Thus, the worst thing must exist.

Another variant on the ontological argument can also be used here. A stock variant is that since God is perfect, He must exist. This is because if He did not exist, He would not be perfect. But He is, so He must. In the case of the worst thing, the worst thing must exist because it is the worst. This is because if it did not exist, it would not be the worst. But it is, so it does. This worst thing would be the truly worst thing (just as God is supposed to be the best thing).

This approach does, of course, inherit the usual difficulties of an ontological argument as pointed out by Gaunilo and Kant (that existence is not a quality). It would certainly be better for the universe and the folks in it for the critics to be right so that there is no worst thing.

 

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The “Princeton Mom” & Sexual Assault

Posted in Ethics, Philosophy, Universities & Colleges by Michael LaBossiere on March 31, 2014
Princeton University

Princeton University (Photo credit: Wikipedia)

Susan Patton, better known as the “Princeton Mom”, has been making the rounds of the talk and news shows promoting her Marry Smart: Advice for Finding THE ONE book. This book presents the 18th century view that a woman should focus primarily on finding a husband and do so quickly—fertility diminishes with time.

Patton attracted more attention with her March 11, 2014 interview with the Daily Princetonian. In a letter to the editor written about a year before the interview, she had make a rather provocative remark: “Please spare me your ‘blaming the victim’ outrage” and claimed that a woman who is drunk and provocatively dressed “must bear accountability for what may happen.” When asked why the woman is responsible in the case of rape or sexual assault, she had the following to say:

 

 The reason is, she is the one most likely to be harmed, so she is the one that needs to take control of the situation. She is that one that needs to take responsibility for herself and for her own safety, and simply not allow herself to come to a point where she is no longer capable of protecting her physical self. The analogy that I would give you is: If you cross the street without looking both ways and a car jumps the light or isn’t paying attention, and you get hit by a car — as a woman or as anybody — and you say, ‘Well I had a green light,’ well yes you did have a green light but that wasn’t enough. So in the same way, a woman who is going to say, ‘Well the man should have recognized that I was drunk and not pushed me beyond the level at which I was happy to engage with him,’ well, you didn’t look both ways. I mean yes, you’re right, a man should act better, men should be more respectful of women, but in the absence of that, and regardless of whether they are or are not, women must take care of themselves.

 

As might be imagined, this view has generated some backlash from faculty at Princeton and other people. Given the old saying that there is no such thing as bad publicity and such controversy can help sell books, it is not clear that the view expressed is one that Patton truly holds. However, when discussing the ethics of the content of her claims, her actual belief does not matter. As such, I will take her expressed view at face value.

Patton’s first claim is that since the woman is most likely to be harmed, she needs to be responsible for her safety. There are at least two ways to view this claim. One is the very reasonable claim that a person needs to be responsible for her own safety—that is, a person has an obligation to herself to make sure that she is not needlessly in danger. This view that self-preservation is rational and obligatory is nicely defended by thinkers like Hobbes and Locke. Another way to view the claim, which is that apparently taken by her critics, is that the burden falls completely on the woman. While this is certainly a prudent view, it does run afoul of the notion that the person who wrongfully inflicts harm on another should bear the majority of the responsibility for the harm inflicted (if not all of it).

Patton’s second claim is that a woman has an obligation to not allow herself to be incapable of self-defense. Presumably Patton means that a woman has an obligation to not become some drunk that she cannot defend herself from a man who means to assault or rape her. In defense of this claim, Patton offers her analogy: a woman who gets assaulted or raped when she is too drunk to defend herself is like someone who gets hit by a car because they did not look both ways before crossing the street—even though she had the light.

The analogy does have some merit—while drivers are obligated to take care not to hit people, a person should take due precautions to avoid being hit. To do otherwise is clearly foolish. However, there is a distinction between what is prudent and what is morally obligatory. While it makes perfect sense that a woman should not impair herself when she has reason to believe that she will be vulnerable to assault or rape, this is a different matter than her having a moral obligation to herself to avoid being vulnerable in this way. There is also a third matter, namely who is responsible when a drunk woman is raped or assaulted.

In regards to the second matter, this is essentially a question of whether there is a moral obligation for self-defense. It is generally accepted that people have a moral right to self-defense and for the sake of the discussion that will be assumed. This right gives a person the liberty to protect herself. If it is only a liberty, then the person has the right to not act in self-defense and thus be an easy victim. However, if there is an obligation of self-defense, then failing to act on this obligation would seem to be a moral failing. The obvious challenge is to show that there is such an obligation.

On the face of it, it would seem that self-defense is merely a liberty. However, some consideration of the matter will suggest that this is not so obvious.  In the Leviathan, Hobbes presents what he takes to be the Law of Nature (lex naturalis): “a precept or general rule, found by reason, that forbids a man to do what is destructive of his life or takes away the means of preserving it and to omit that by which he thinks it may be best preserved.” Hobbes goes on to note that “right consists in liberty to do or to forbear” and “law determines and binds.” If Hobbes is correct, then people would seem to have both a right and an obligation to self-defense.

John Locke and Thomas Aquinas also contend that life is to be preserved and if they are right, then this would seem to impose an obligation of self-defense. Of course, this notion could be countered by contending that all it requires is for a person to seek protection from possible threats and doing so could involve relying on the protection or restraint of others rather than one’s self. However, there are arguments against this.

I will start with a practical argument. While the modern Western state projects its coercive force and spying eyes into society, the state’s agents cannot (yet) observe all that occurs nor can they always be close at hand in times of danger. As such, relying solely on the state would seem to put a person at risk—after all, he would be helpless in the face of danger. If a person relies on other individuals, then unless she is guarded at all times, then she also faces the real risk of being a helpless victim. This would, at the very least, seem imprudent.

This argument can be used as the basis for a moral argument. If a person is morally obligated to preserve life (including his own) and others cannot be reliably depended on, then it would seem that she would have an obligation of self-defense and this would include not intentionally making herself vulnerable to well-known threats. These threats would, sadly, include those presented by bad men. As such, a woman would have a moral obligation to avoid being vulnerable. This seems reasonable.

The third matter is the question of moral responsibility when a drunk woman is assaulted or raped by a man who takes advantage of her vulnerability.  In the abstract, it could be argued that the woman does bear some of the responsibility—if a woman has an obligation to defend herself, she would have failed in her obligation by becoming vulnerable in this way. As with her analogy, someone who crosses the road without looking and gets hit has failed in a clear duty to herself. However, even if this point is granted, there is still the matter of who bears the majority of the responsibility.

On the face of it, it seems evident that the man who assaulted or raped the woman bears the overwhelming moral responsibility. After all, even if the woman should have avoided being vulnerable, the man has a far greater moral obligation to not harm her. There is also the matter of reasonable expectations. To be specific, while a person is obligated to protect herself, this does not obligate her to be hyper-vigilant against all possible dangers. To use an analogy, if woman does not buy body armor to wear on campus (after all, there have been campus shooting) and she is shot by a gunman, it would be absurd to blame her for her injury or death. The blame rests on the shooter—his obligation to not shoot her vastly outweighs the extent of her obligation to be prepared.

In the case of rape and sexual assault, while a woman should be prudent for the sake of self-protection, the overwhelming moral responsibility is on the man. That the woman makes herself vulnerable to rape or assault no more lessens the rapist’s responsibility than the fact that the woman was not wearing body armor lessens the responsibility of the shooter. The principle here is that vulnerability does not mitigate moral responsibility. This is intuitively plausible: just because a victimizer has an easier time with his victim, it hardly makes his misdeeds less bad.

Patton does acknowledge that men should act better, but she does insist that a woman must take care of herself. This could be seen as sensible advice: a woman should not count on the goodwill of others, but be on guard against reasonably foreseeable harm. This advice is, of course, consistent with the view that the rapist is the one truly responsible for the rape.

 

 

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Is there an Obligation of Self-Defense?

Posted in Ethics, Philosophy, Politics by Michael LaBossiere on February 1, 2013
Fight Club DVD

Fight Club DVD (Photo credit: filmhirek)

It is generally accepted that people have a moral right to self-defense. That is, if someone is unjustly attacked or threatened, then it is morally acceptable for her to act in her own self-protection. While there are moral limits on the actions a person may take, violence is generally considered morally acceptable in the right condition.

This right to self-defense does seem to provide a philosophical foundation for the right to the means of self-defense. After all, as Hobbes argued, a right without the means to exercise that right is effectively no right at all. Not surprisingly, I consider the right to own weapons to be grounded on the right of self-defense. However, my concern here is not with the right of self-defense. Rather, I will focus on the question of whether or not there is an obligation of self-defense.

The right to self-defense (if there is such a right) gives a person the liberty to protect herself. If it is only a liberty, then the person has the right to not act in self-defense and thus be a perfect victim. A person might, of course, elect to do so for practical reasons (perhaps to avoid a worse harm) or for moral reasons (perhaps from a commitment to pacifism). However, if there is an obligation of self-defense, then failing to act on this obligation would seem to be a moral failing. The obvious challenge is to show that there is such an obligation.

On the face of it, it would seem that self-defense is merely a liberty. However, some consideration of the matter will suggest that this is not so obvious.  In the Leviathan, Hobbes presents what he takes to be the Law of Nature (lex naturalis): “a precept or general rule, found by reason, that forbids a man to do what is destructive of his life or takes away the means of preserving it and to omit that by which he thinks it may be best preserved.” Hobbes goes on to note that “right consists in liberty to do or to forbear” and “law determines and binds.” If Hobbes is correct, then people would seem to have both a right and an obligation to self-defense.

John Locke and Thomas Aquinas also contend that life is to be preserved and if they are right, then this would seem to impose an obligation of self-defense. Of course, this notion could be countered by contending that all it requires is for a person to seek protection from possible threats and doing so could involve relying on the protection of others (typically the state) rather than one’s self. However, there are at least three arguments against this.

The first is a practical argument. While the modern Western state projects its coercive force and spying eyes into society, the state’s agents cannot (yet) observe all that occurs nor can they always be close at hand in times of danger. As such, relying solely on the state would seem to put a person at risk—after all, he would be helpless in the face of danger. If a person relies on other individuals, then unless she is guarded at all times, then she also faces the real risk of being a helpless victim. This would, at the very least, seem imprudent.

This argument can be used as the basis for a moral argument. If a person is morally obligated to preserve life (including his own) and the arms of others cannot be reliably depended on, then it would seem that she would have an obligation of self-defense.

The third argument is also a moral argument. One favorite joke of some folks who carry concealed weapons is to respond, when asked why they carry a gun, with the witty remark “because cops are too heavy.” While this is humor, it does point towards an important moral concern regarding relying on others.

A person who relies on the protection of others is expecting those people to risk being hurt or killed to protect her. In the case of those who are incapable of acting in effective self-defense, this can be a morally acceptable situation. After all, it is reasonable for infants and the badly injured to rely on the protection of others since they cannot act in their own defense.  However, a person who could be competent in self-defense but declines to do so in favor of expecting others to die for her would seem to be a morally selfish person. As such, it would seem that people have an obligation of self-defense—at least if they wish to avoid being parasites.

An obvious counter is that people do rely on others for self-defense. After all, civilians wisely allow the police and military to handle armed threats whenever possible. Since the police and military are armed and trained for such tasks, it makes sense practically and morally to rely on them.

However, as noted in the first argument, a person will not always be under the watchful protection of others. Even if others are available to risk themselves, there is still the moral concern regarding of expecting others to take risks to protect one when one is not willing to do the same for himself. That seems to be cowardice and selfishness and thus morally reprehensible. This is not, of course, to say that accepting the protection of the police and military is always a moral failing—however, a person must be willing to accept the obligation of self-defense and not rely entirely on others.

This raises the matter of the extent to which a person is obligated to be competent at self-defense and when it would be acceptable to rely on others in this matter. It would, of course, be an unreasonable expectation to morally require that people train for hours each day in self-defense. However, it does seem reasonable to expect that people become at least competent at protecting themselves, thus being able to at least act on the obligation of self-preservation with some chance of success. This obligation of self-preservation would also seem to obligate people to maintain a degree of physical fitness and health, but that is a matter for another time.

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Mental Illness or Evil?

Posted in Ethics, Law, Medicine/Health, Philosophy, Politics by Michael LaBossiere on December 21, 2012
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(Photo credit: Robbie Wroblewski)

When a person does terrible things that seem utterly senseless, like murder children, there is sometimes a division in the assessment of the person. Some people will take the view that the person is mentally ill on the grounds that a normal, sane person would not do something so terrible and senseless. Others take the view that the person is evil on the grounds that a normal, non-evil person would not do something so terrible and senseless. Both of these views express an attempt to explain and understand what occurred. As might be imagined, the distinction between being evil and being mentally ill is a matter of significant concern.

One key point of concern is the matter of responsibility and the correct way to respond to a person who has done something terrible. If a person acts from mental illness rather than evil, then it seems somewhat reasonable to regard them as not being accountable for the action (at least to the degree the person is ill). After all, if something terrible occurs because a person suffers from a physical illness, the person is generally not held accountable (there are, obviously, exceptions). For example, my running friend Jay told me about a situation in which a person driving on his street had an unexpected seizure. Oddly, the person’s foot stomped down on the gas pedal and the car rocketed down the street, smashing into another car and coming to a stop in someone’s back yard. The car could have easily plowed over my friend, injuring or killing him. However, since the person was not physically in control of his actions (and he had no reason to think he would have a seizure) he was not held morally accountable. That is, he did nothing wrong. If a person had intentionally tried to murder my friend with his car, then that would be seen as an evil action. Unless, perhaps, the driver was mentally ill in a way that disabled him in a way comparable to a stroke. In that case, the driver might be as “innocent” as the stroke victim.

There seem to be at least two ways that a mentally ill person might be absolved of moral responsibility (at least to the degree she is mentally ill).

First, the person might be suffering from what could be classified as perceptual and interpretative disorders. That is, they have mental defects that cause them to perceive and interpret reality incorrectly.  For example, a person suffering from extreme paranoia might think that my friend Jay intends to steal his brain, even Jay has no such intention. In such a case, it seems reasonable to not regard the person as evil if he tries to harm Jay—after all, he is acting in what he thinks is legitimate self-defense rather than from a wicked motivation. In contrast, someone who wanted to kill Jay to rob his house or just for fun would be acting in an evil way. Put in general terms, mental conditions that distort a person’s perception and interpretation of reality might lead him to engage in acts of wrongful violence even though his moral reasoning might remain normal.  Following Thomas Aquinas, it seems sensible to consider that such people might be following their conscience as best they can, only they have distorted information to work with in their decision making process and this distortion results from mental illness.

Second, the person might be suffering from what could be regarded as a disorder of judgment. That is, the person’s ability to engage in reasoning is damaged or defective due to a mental illness. The person might (or might not) have correct information to work with, but the processing is defective in a way that causes a person to make judgments that would be regarded as evil if made by a “normal” person. For example, a person might infer from the fact that someone is wearing a blue hat that the person should be killed.

One obvious point of concern is that “normal” people are generally bad at reasoning and commit fallacies with alarming regularity. As such, there would be a need to sort out the sort of reasoning that is merely bad reasoning from reasoning that would count as being mentally ill. One point worth considering is that bad reasoning could be fixed by education whereas a mental illness would not be fixed by learning, for example, logic.

A second obvious point of concern is discerning between mental illness as a cause of such judgments and evil as a cause of such judgments. After all, evil people can be seen as having a distorted sense of judgment in regards to value. In fact, some philosophers (such as Kant and Socrates) regard evil as a mental defect or a form of irrationality. This has some intuitive appeal—after all, people who do terrible and senseless things would certainly seem to have something wrong with them. Whether this is a moral wrongness or health wrongness is, of course, the big question here.

One of the main reasons to try to sort out the difference is figuring out whether a person should be treated (cured) or punished (which might also cure the person). As noted above, a person who did something terrible because of mental illness would (to a degree) not be accountable for the act and hence should not be punished (or the punishment should be duly tempered). For some it is tempting to claim that the choice of evil is an illusion because there is no actual free choice (that is, we do what we do because of the biochemical and electrical workings of the bodies that are us). As such, people should not be punished, rather they should be repaired. Of course, there is a certain irony in such advice: if we do not have choice, then advising us to not punish makes no sense since we will just do what we do. Of course, the person advising against punishment would presumably have no choice but to give such advice.

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Debating Meat III: Cartesian Cutlets

Posted in Ethics, Metaphysics by Michael LaBossiere on March 3, 2010
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In my previous post on this subject, I discussed the theology of eating meat. My main focus was on the Christian view of the matter as exemplified by the writings of Thomas Aquinas and Augustine. I now turn to look at the metaphysical view put forth by Rene Descartes and how this relates to the ethics of eating animals.

In his 1648 letter to Henry Moore Descartes addresses the question of whether or not animals have minds. He begins by presenting the main reason that we think that animals think: an argument by analogy. The gist of this argument is that animals resemble us in terms of their behavior and physiology. Hence, we infer that animals also think  because we do so.

Descartes first main argument is based on a common method in philosophy and science, that of Occam’s Razor.  The rough idea is that if something can be explained without assuming the existence of an entity (such as a metaphysical mind), then there is no reason to accept that such a thing exists.

In the case of animals, Descartes argues that all their movements and actions can be explained in purely mechanical terms. Hence, there is no need to accept the existence of animal minds in order to account for their doing what they do. In modern terms, Descartes takes animals to be biological robots-they do what they do on the basis of their mechanical parts rather than on the basis of a metaphysical mind.

While Descartes finds this argument convincing, he thinks that his strongest argument is the language argument. He contends that animals do not use true language (he does concede that they do make sounds that express the states of their bodies, such as pain or hunger) while humans do. He takes this distinction to be the key difference between people (who have minds and bodies) and animals (who are mere bodies).

He concludes his letter, interesting enough, by noting that he is speaking to  “those not committed to the extravagant position of Pythagoras, who held people under suspicion of a crime who ate or killed animals.”

In many ways this argument is similar to those put forth by Augustine and Aquinas. The basic idea is that animals are metaphysically different from us (inferior, of course) and this morally allows us to eat and kill them. While Descartes does not explicitly develop the moral argument, it seems quite reasonable to take this as his view of the matter.

This argument does have  a certain appeal. After all, the moral status of a being does seem to depend on its qualities and the mental qualities (or lack thereof) do seem to be especially relevant. For example, if I get angry and break my laptop, I might be wasting a perfectly good computer but I am committing no wrong against the laptop. After all, a laptop  is simply not the sort of thing that can be wronged. It lacks the qualities that enable it to be a morally relevant agent.

If animals lack minds, then they would be on par with laptops. While they would be complex machines, they would still be mere machines and hence lacking in moral status.

Of course, there are various ways to disagree with Descartes’ argument. One is to argue that animals do, in fact, have minds and that although they are not as complex as the typical human mind, this still entitles them to a moral status. Some folks have even tried to prove that certain animals do use true language. This status might (or might not) be suitable to make the killing or consumption of animals an immoral act.

Another way is to argue that animals have a moral status that does not depend on their having minds. Since Descartes concedes that animals feel pain (but not in the mental sense, since they lack minds) this could be used as a counter against his view (perhaps by making a utilitarian style argument).

One final point I will consider is that some philosophers and scientists (actually many) think that humans lack metaphysical minds. Interestingly enough, one view is that humans are as Descartes saw animals: complex biological automatons (that is, meatbots). So, if Descartes’ argument holds for animals then it would also hold for us as well. Of course, it can also be argued that while humans do not have Cartesian minds, humans do have minds and these minds are superior to animal minds in a way that justifies killing or eating animals.

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Jury Nullification

Posted in Ethics, Law, Philosophy by Michael LaBossiere on October 6, 2009
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A short while ago, I received a summons for jury duty. Being a philosopher, I naturally set out to research the matter and one of the more interesting things I came across was the concept of jury nullification.

Jury nullification takes place when the members of a jury believe that the defendant is actually guilty of breaking the law yet a verdict of not guilty is rendered. This has the effect of nullifying the law. Generally, the term is applied when a jury acts on the basis of either a belief that the law itself is immoral or has been improperly applied to the defendant.

Perhaps the best known case of nullification occurred in 1735. John Peter Zenger was charged with libeling William Cosby, the governor of what was then the colony of New York. While Zenger had, in fact, printed the alleged libelous material, the jury elected to find him not guilty, thus nullifying the law.

The morally tumultuous 1800s saw numerous cases of jury nullification as many juries rendered verdicts of not guilty in defiance of the Alien and Sedition Act as well as the Fugitive Slave Laws. During prohibition, many juries did the same for people accused of violating the laws relating to alcohol. The practice has continued to this day, although to a lesser degree relative to the 1800s.

The legality of jury nullification has an interesting history and is nicely summarized by Doug Linder. While the legality of jury nullification is interesting, my main concern is the ethics of the matter.To limit the scope of the discussion, I will focus on the morality of nullification based on moral grounds.

On the face of it, a jury should follow the law. After all, to paraphrase Thomas Aquinas, laws are created with the expectation of obedience. However, Aquinas also argues that there is an objective moral basis by which to assess human laws and human laws that fail to measure up are not true laws, but perversions of law. Of course, other thinkers (such as Thomas Hobbes) reject this sort of view. This disagreement provides the basis for an interesting (and possibly false) dilemma.

On the face of it, law is either based on a moral foundation or it is not.  Now, if law has no moral foundation at all, then there would seem to be no basis to morally criticize a jury for nullifying a law. After all, they would have no moral obligation to follow the law.

However, if law has a moral foundation, then it would owe (at least some of) its authority to that moral foundation. This would seem to entail (with some suitable and lengthy argumentation) that any law that goes against that moral foundation would be an illegitimate law. This would clearly provide a moral basis for jury nullification. After all, if the jury has correctly discerned the law as being illegitimate (that is, it violates the moral foundation of law) then they would be in the right to refuse to apply it. Naturally, if they elected to apply it, then the folks on the jury would be acting in what would seem to be an immoral manner.

It might be objected that even if the law has a moral foundation, jury members are obligated to apply the law even if it is an immoral law. One might even point to Socrates‘ arguments in the Crito as to why a citizen owes obedience even when he disagrees with the law (although the citizen should try to persuade the state to change such laws).

While this objection does have a certain appeal, it can be countered by noting that the status of a person as a moral agent has a moral priority over her status as a citizen. This is to say that morality is more fundamental than the law. As such, a person has a primary obligation to do what is right and this can override other apparent obligations, such as the obligation to obey the law. In fact, if it is argued that a person is morally obligated to obey the law, the objection already assumes that morality is more fundamental than law. Otherwise, one would just say that the law commands obedience that overrides everything. This, of course, leads to the next objection.

Some thinkers hold exactly that: the law commands obedience. Some, such as the legalists, go even further and assert that what the law commands is good because it commands it and what it forbids is evil because it forbids it. On this view, citizens should obey the law because it is the law.

A reply to this is the intuitive view that there have been and are evil laws that should not be obeyed. That people should do what the state says because the state says so hardly seems to be a satisfying moral theory. Rather, it seems to be merely the dream of authoritarians and dictators.

A final objection worth considering is that a jury might be mistaken about the ethics of the law and hence they should simply follow the law out of fear of being wrong.

The easy and obvious reply to this is that if a jury can be trusted to make life and death decisions, surely they can be trusted to make such moral judgments. If juries cannot be trusted to make such tough moral decisions, then this would undercut the entire notion of trial by jury and thus render the whole concern about nullification moot. The objection does, however, present a reasonable concern. After all, juries should not lightly or frivolously apply nullification nor should they do so unless the folks on the jury have properly considered the ethics of the matter. In cases of immoral laws, jury nullification would seem to be more than morally acceptable-it would seem to be morally required.

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