A Philosopher's Blog

Campus Concealed Carry & Free Speech

Posted in Law, Politics by Michael LaBossiere on February 29, 2016

While a concealed weapon permit allows a person to carry a gun many places, the campuses of public universities have generally been gun-free areas. My adopted state of Florida has been wrangling with a bill to allow concealed carry on campus and Texas recently passed such a bill into law.

The faculty of the University of Houston met to discuss this issue and express concern about its impact. A slide from a faculty meeting about the law suggests that faculty “be careful in discussing sensitive topics”, “drop certain topics from your curriculum”, “not ‘go there’ if you sense anger”, “limit student access off hours, go to appointment-only office hours , and only meet ‘that student’ in controlled circumstances.”

What is rather striking about this slide is that the first three suggestions are identical to limits imposed by what detractors call “political correctness” and there are also similarities to recommendations about trigger warnings. This provides the grounds for the discussion to follow in which I consider limits of free speech and academic freedom.

One way to justify limiting academic freedom and free speech is to argued that students are entitled to a non-hostile learning environment in which diversity and difference are not only tolerated but respected. That is, students have a right to expect limits on the academic freedom and free speech of professors. This is often supported by a moral argument that appeals to the harms that would be suffered by the students if the freedoms of the professors were not suitable limited for their protection. For the good of the sensitive students, professors are supposed to accept such restrictions.

This sort of reasoning assumes that students would be harmed without such restrictions and that their right not to be harmed exceeds the imposition on the rights of the professors (and other students who might gain value from such subjects and discussions).

A similar sort of argument can be made in the case of concealed weapons. The reasoning is, presumably, that an armed student might be provoked to violence by what happens in class and thus hurt other students. As such, for the safety of students, professors should accept restrictions on their freedoms.

This reasoning assumes that armed students pose a threat and are easily provoked to violence—a factual matter that will be discussed later. It also assumes that the risk of harm to the students by a fellow student outweighs the rights of free expression and academic freedom (on the part of both professors and students).

Somewhat ironically, the attitude expressed in the slides suggests that there will be a hostile environment for gun owners—something I have experienced. Being from rural Maine, I learned to shoot as soon as I could hold a gun and spent much of my youth hunting and fishing. While many colleagues do not take issue with this, I have run into some general hostility towards guns and hunting. I have had fellow professors say “you are not stupid, so how can you like guns?” and “you seem like such a decent person, how could you have ever gone hunting” (often said between bites of a burger). While being a gun owner is a matter of owning a gun, there is also a culture that includes guns—one I grew up in and remain a part of. Hostility towards people because they belong to such a culture seems comparable to hostility towards other aspects of culture—like being hostile towards Muslims or towards men who elect to wear traditional female clothing.

It might be replied that gun culture is not worthy of the same tolerance as other cultures—which is, of course, what people who hate those other cultures say about them. It might also be argued that the intent is not to be intolerant towards people who have guns as part of their culture, but to protect students from the dangers presented by such irrational and violence prone people.

Another way to justify limiting academic freedom and free speech is on practical or pragmatic grounds. In the case of political sensitivity, professors might decide that it is not worth the hassle, the risk of law suits, the risk of trouble with administrators and the risk of becoming a news item. As such, the judgment to voluntarily restrict one’s freedom would be an assessment of the practical gains and harms, with the evaluation being that the pragmatic choice is to run a safe class. This, of course, assumes that the practical harms outweigh the practical benefits—an assessment that will certainly vary greatly depending on the circumstances.

The same justification can be used in the case of armed students. The idea is that professors might decide on purely pragmatic grounds that risking provoking an armed student is not worth it—this would not be a moral assessment, simply a pragmatic decision aimed at having a bullet free day in the classroom.

This, of course, assumes that a pragmatic assessment of the risk shows that the best practical choice is to focus on safety.

A final way to justify restricting academic freedom and freedom of expression is a moral argument that is based on the potential harm to the professor. In the case of political sensitivity, there is considerable concern about the damage that a professor can suffer if she is not careful to restrict her freedom. While privacy concerns preclude going into details, I have had colleagues in the professor express considerable terror at the prospect that a blog they write for might post a controversial piece. The worry was that their careers would be damaged in terms of keeping or finding employment. While such fear might be unfounded, it is quite real and certainly provides a moral foundation for self-censoring: the professor must restrict her freedom to avoid doing moral harm to herself. As with any such assessment, the risk of harm and the extent of the harm needs to be considered. As noted above, this does seem to be a very real fear today.

In the case of guns, the worry is that a professor could cause herself harm by provoking gun violence on the part of a student. The moral foundation for self-censorship is the same as above: the professor must restrict her freedom to avoid doing moral harm to herself.

As was the case with career damage, a professor would need to consider the risk of provoking a student to gun violence and perhaps the moral choice would be to choose safety over the risk. This leads to the factual matter of the extent of the risk.

The fear expressed by some about concealed carry on campus seems to be based on an assumption that it presents a significant risk to professors. However, it is not clear that this is the case. First, the law only allows those with permits to bring their guns on campus. Threatening people and shooting people remain illegal. If someone is willing to break the law regarding threatening or murder, presumably they would also be willing to break a law forbidding guns on campus. As such, there does not seem to be a significant increase in risk because of allowing concealed carry on campus.

Second, campuses do not (in general) have security checks for guns. It would be one thing if the law disbanded existing security screening to enter campus—this would increase the risk of guns on campus. This law just allows law-abiding citizens to legally bring a gun on campus and has no effect on how easy or hard it is for someone to bring a gun on campus with the intent to commit violence. As such, campuses would be about as safe as ever.

It might be objected that a person will legally bring a gun to class or the professor’s office, be provoked to violence and act on this provocation only because she has a gun (and would not use her hands, a knife or a chair). Thus, the danger is great enough to warrant professors to self-censor.

One reply to this is to note that violence by students against professors is rather rare and allowing guns on campus would not seem to increase the violent tendencies of students. It could, of course, happen—but a student could also decide to run over a professor with a car and this possibility does not justify banning cars from campus. The fear that a student carrying a weapon legally will murder a professor after being provoked in class or in the office seems analogous to the fear that Muslim refugees will commit terrorists in the United States. While it could happen, the fear is overblown and does not seem to justify imposing restrictions. As such, while free expression combined with legal campus carry does entail a non-zero risk, the risk is so low that self-censorship seems unwarranted.

 

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Why Gun Rights Advocates Should Back Apple

Posted in Ethics, Philosophy, Politics by Michael LaBossiere on February 26, 2016

As this is being written, Apple is involved in a battle with the state over cracking its own security measures. The company has made its case via a letter to the customers. Although I have written on the matter of encryption and backdoors on other occasions, I will focus on why American gun rights advocates should back Apple in this particular matter and support encryption in general. To do so I will make use of three stock gun rights arguments. As always, I will also consider reasonable objections against my view.

The comparison of guns and encryption was inspired by two main factors. The first is that the alleged San Bernardino shooter whose phone Apple is supposed to crack used guns to commit the alleged murders. However, the central debate arising from this situation is over the alleged killer’s phone. The second is that encryption has been classified as a weapon, which makes for an interesting connection to other weapons, most importantly guns.  I now turn to my arguments.

One standard argument in defense of gun rights in the United States is to appeal to the Second Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”  This is supposed to provide citizens with the right to own weapons and is often used to argue for the rights to carry weapons openly.

While there is obviously no Constitutional Amendment that mentions a right to encryption, this right would appear to fall under the Fourth Amendment: “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

While people can obviously be more or less fixated on different rights, if gun rights are regarded as justified by the Constitution, then consistency would require accepting that a right of encryption is justified by the Constitution. As such, gun rights advocates should also advocate on behalf of encryption rights.

It could be objected that while the Constriction makes clear reference to arms, papers and effects, it makes no reference to digital data. As such, since there is no right to be secure in regards to digital data, there is no right to encryption.

The easy reply to this is to employ a version of the argument used by gun advocates when their critics point out that the arms referred to in the Constitution are flintlocks, swords, and bayonets. That is, 18th century arms. The response is, of course, that “arms” now includes modern weapons as well, such as assault rifles. The same sort of argument can be used in support of encryption rights: the modern version of papers would include digital data—in the 18th century “papers” referred to a means of data storage.

Another objection is that the Fourth Amendment does not grant a right to encryption—it merely grants a right to be secure such that the state has to go through a specific process to violate that security. Crudely put, it is not a right to have locks on your door; it is a right that the state must have a proper warrant before coming in. In the case of digital data, the lock would be the encryption.

The reasonable reply to this is supplied by Thomas Hobbes. He made the excellent point that a right without the means to exercise it is not a right at all. As such, the people need the means to exercise their right to be secure and this would cover the use of encryption.

A final objection is that even if people have a right to encryption, it does not follow that they have a right to unbreakable encryption that would keep the state out. After all, the Fourth Amendment allows for reasonable searches and seizures.

The reply to this is to point out that while reasonable searches and seizures are allowed, they are not granted to the state as a right.  That is, the state does not have a Constitutional Guarantee to get into our effects and papers. As such, citizens are under no obligation to provide the state with a means to access their papers and effects.

Given these arguments, there would seem to be a Constitutionally protected right to encryption and those who profess a love of the Constitution and the Second Amendment in particular should lovingly embrace encryption.

A second argument commonly used by gun advocates is that citizens need guns in order to protect themselves from criminals, terrorists and other bad guys. This argument is used even in the face of the obvious fact that criminals, terrorists and other bad guys use guns to cause harm. When it is argued that the way to ensure safety is to restrict or even eliminate gun ownership, two stock replies are that then only the bad guys will have guns and that the only way to stop a bad buy with a gun is a good guy with a gun.

The same sort of argument applies to encryption: there are criminals, terrorists and other bad guys who want to harm us by getting into our data. Just as a gun is supposed to protect a citizen from threats in the physical world, encryption is a weapon of defense in the digital world.

It can be objected that the bad guys will also use encryption to protect themselves from law enforcement. However, this is exactly like how the bad guys also use guns to protect themselves from law enforcement. As such, if people should be allowed to have guns to defend themselves against bad guys, the same right of self-defense justifies the possession of encryption. If it is argued that citizens should give up encryption in favor of safety, then the same must be said of guns—something that certain politicians apparently do not grasp.

It might be said that while citizens do have a right to encryption, the state must have the means to turn it off so it can engage in investigations and spying on the bad guys. The same argument could be made for a “turn off” device for guns that would allow them to be remotely disabled by the state—citizens who are law abiding will have nothing to worry about, since the state would have to go through due process to turn off their guns.

The response to such a gun switch proposal is easy to imagine—gun rights advocates would point out that the bad guys would soon acquire the means to turn off the guns of honest citizens and leave them helpless in the face of an attack. The same concern applies to having an off switch for encryption: the bad guys would soon have it and use it to harm honest citizens. As such, citizens need unbreakable encryption in order to be safe and this should be supported by those who believe that citizens need guns to be safe.

The third commonly used gun rights argument is based on the claim that citizens need guns in order to protect themselves from the tyranny of the state. The idea is that armed citizens provide a deterrence against state tyranny and arms provide a means of defense should deterrence fail.

This argument can also be applied to encryption: the rights of the citizens are protected from the state’s intrusion because the state cannot gain access to the citizen’s papers without the consent of the citizen. In this regard, encryption provides even greater security than the gun—the state, after all, has much larger guns and can easily kill any citizen or any mob of small arm carrying citizens. But encryption that it cannot break puts every citizen on equal footing with the state in this regard. Because of this, those who are worried about the tyranny of the state should support encryption.

In light of the above arguments, those that favor gun rights should also back encryption rights. After all, the justifications for gun rights even more strongly support the right to encryption.

 

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The Trumpernaut, Truth & Anger

Posted in Business, Politics by Michael LaBossiere on February 24, 2016

When Donald Trump threw his hair into the presidential ring, the pundits predicted that he would burn brightly and then rapidly fade away. They were wrong. As Trump kept Trumping along, the pundits kept predicting that the establishment candidates would surge past him. As this is being written, Trump is riding high on victories in North Carolina and Nevada—thus proving the pundits wrong once again. Jeb, of course, has gone home to make some guacamole.

Trump’s continued success is certainly interesting from the standpoint of politics but also from that of psychology and even philosophy. After all, figuring out why he is doing so well and how this is likely to impact the future of politics are matters well worth considering.

Trumps detractors, which seems to include the entire Republican establishment, point to his alleged negative qualities. Trump is regarded as being a liar—or at least a relentless speaker of untruths. This won him Politifact’s Lie of the Year. He is also seen as a racist and a bully. Those who focus on substance are rather disappointed by the Donald: he seems to lack any substantive plans and policies. Instead, he makes outlandish claims about beating everyone, about getting Mexico to pay for a giant wall, and about banning Muslims from the United States. Given that he has never held political office and has an impressive string of business disasters to his name, this is not particularly surprising.

The usual narrative is that Trump is winning despite these alleged negative qualities and many commentators still cling to the hope that Trump will flare out and slam into the ground. While this has some appeal, I have argued before that Trump is doing well because of these qualities rather than despite them. One reason for this, as I argued in a previous essay, is that the Republican Party and its allies lovingly crafted a political environment that is well suited to Trump. Another reason is that there has been a change in the political mood of the country which makes the niche forged by the Republicans even more ideal for Trump. In this environment, his qualities are superb adaptations for success. As such, it is no wonder that he is doing so well. I will now turn to a brief discussion of how these traits fit the political ecosystem and are enabling Trump to thrive.

Trump majestically handles his untruths by doubling or even tripling down on them. His brashness and confidence is likely to be very refreshing to voters accustomed to weak and insincere apologies on the part of other politicians. As such, even his untruths make him appear strong and decisive in the eyes of some voters. His bullying also makes him appear strong; especially since it is easy to mistake the bluster of a bully for real strength. Trump’s alleged racism and sexism also make him appear defiant and strong—he is regarded as being brave enough to stand up to the bogeyperson that is the PC movement. This ties nicely into his ability to appeal to the fears of some of the population: they want a strong man to protect them from what scares them. Even when the fears are ill-founded and fundamentally irrational.

The appeal of Trump’s lack of experience in politics is very easy to explain. In addition to the concerted effort to discredit the very idea of government on the part of many conservatives, Congress endeavors to do all it can to disappoint and annoy the American people. Thus, while the idea of getting medical care from someone with no medical experience would seem crazy, the idea of having a president with no experience in any political office strikes many as appealing. Presumably the reasoning is that being an experienced politician simply makes a person worse. To use an analogy, a person would not want an experienced criminal handling their money. They would prefer someone who has never been involved in crime.

Trump’s lack of substantive policy positions and the absence of anything that could sensibly be called a plan would seem to be problematic to explain as appealing to people. However, it is easy enough to do this. First, the Republicans have bashed Obama for thinking too much, for being too professorial, and not being bold and decisive (that is, not rushing in to do something). As such, Trump’s lack of thought, failure to plan and promises to “do something” are all very appealing. This ties nicely into the appeal of doing something, even if it is wrong. Somewhat ironically, this is what helped spell the end of Jeb Bush. While Bush is a moderate conservative, he seems very Obama-like in regards to being a calm, soft-spoken man with a plan. This is exactly what Republicans have been told to hate.

Second, planning and thinking are seen as contrary to what a strong man of action would do—as such, Trump’s vague “plans” and his bold assertions about winning make him seem even stronger. After all, only weak people need to think about what they will do and have a plan. The strong can just bash away at things until they break.

Third, Trump is promising people what they want to hear. Somewhat ironically, laying out the plan of how he would, for example, get the Mexicans to pay for the wall would make his claims far less plausible. Laying out a plan would cause people to think about the process, which runs the risk of making them realize there is no way he can do what he claims. By making bold promises and avoiding any planning, he allows people to share the fantasy with him.

In closing, the fact that Trump lacks quality and substance yet is winning should be no surprise. One has only to consider McDonalds, the Transformer movies and the Kardashians to realize that success and substance can be complete strangers.

 

 

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Regulating the New Economy: Uber, Lyft & Fingerprinting

Posted in Business, Ethics, Law, Philosophy by Michael LaBossiere on February 22, 2016

Companies like Uber and Lyft profess to be shaking up the old economy. As has happened with every shake up, there has been a legal up—that is, endeavors to regulate the changes. In some cases, these regulations are at the behest of influential players in the established economic order who wish to maintain their economic dominance. In other cases, the regulations are motivated for more benign reasons, such as protecting the public.

As this is being written, Uber and Lyft are involved in a legal struggle in Texas. The city of Austin is considering a program for fingerprinting drivers of these services. Lyft and Uber are both opposed to this—mainly on the grounds that they fear this will start the slow march towards ever-increasing regulation. This is not the first shootout in Texas over fingerprinting: Houston mandated the fingerprinting of drivers and Lyft responded by abandoning the city. Uber elected to remain and operate within the requirement. While the matter of fingerprinting is interesting in itself and will be the focus of the discussion to follow, there is also the general matter of imposing new regulations on these new approaches to business. Not being a lawyer, I will focus on the ethics of this matter on the grounds that I contend regulatory laws and policies must have a solid moral foundation.

When approaching the regulation of a new business, it is natural to look for precedents in regards to existing businesses. In the case of Uber and Lyft, it is natural to turn to the regulation of taxi and limousine companies on the grounds that they offer the same basic service: transportation via automobiles. In general, taxi drivers are required to undergo fingerprinting and a background check. As should be expected, those in favor of having Lyft and Uber drivers undergo this process point to this fact and some make an argument based on consistency.

Consistency requires that the regulation of a new business should be modeled on the regulations of older businesses to the degree the businesses resemble each other. There are two foundations for consistency: logic and fairness. In regards to logic, the reasons that justify the regulations of the old business would apply to the new business to the degree they resemble each other. As such, if the fingerprinting of taxi drivers is justified, then the fingerprinting of Uber and Lyft drivers would be justified to the degree that the businesses have relevant similarities.

Fairness, which is a matter of ethics, requires that businesses that are relevantly similar be treated in similar ways. To use a specific example, if Lyft and Uber were able to avoid regulations that taxi companies have to deal with, then this would provide an unjust advantage—at least to the degree that Lyft and Uber are like taxi companies.

Companies like Uber and Lyft often try to avoid regulation by arguing that there are relevant differences between their companies and their competition such that they should not be subject to the same regulations. In the case of these ride sharing services, the two main concerns are whether or not these companies are relevantly similar to taxi companies and whether or not their drivers are relevantly similar to taxi drivers. The resemblance or lack thereof is not all or nothing: ride sharing services might be the same as taxi services in some important ways and very different in equally important ways.

While this is a specific matter about fingerprinting drivers, the general principle here is that if regulation of one aspect of a business is warranted, then it is also warranted in regards to businesses that are relevantly similar. As such, this principle would also apply to companies like Airbnd.

In the case of fingerprinting and background checks for drivers, I would contend that the ride sharing services are similar in relevant ways. After all, whether it is an Uber or a taxi, the passenger is put into a position of considerable vulnerability. As such, if the fingerprinting of taxi drivers is warranted, so is the fingerprinting of Uber and Lyft drivers. There is, of course, still the question of warrant. This leads to the general matter of justifying business regulations.

The first concern in regards to business regulations (and any laws that require or forbid) is whether or not there is a harm that is significant enough to justify regulation. As I usually do in such matters, I follow Mill’s principle of harm: the only justification for imposing on the liberty of a fully functioning adult is the prevention of harm to others. This is obviously subject to debate, but Mill’s arguments are rather compelling. Even if this principle is accepted, there is still a vast territory of dispute regarding the significance of the harms—that is, sorting out what level of harm justifies which level of regulation. To use a concrete example, some contend that even a submicroscopic level of voter fraud justifies a buffet of regulations ranging from voter ID requirements to ending early voting. To use another concrete example, some contend that any increase in gun regulations is unacceptable even in the face of significant levels of gun related deaths.

In the case at hand, the concern is whether or not there is a danger to public safety on the part of drive sharing drivers that needs to be addressed. It is clear that there is a danger—a driver could kidnap, assault or kill a passenger. However, the main issue here is whether or not the likelihood of such harms is high enough to warrant the imposition of fingerprinting. On the one hand, the fingerprinting is not a big deal in terms of time and cost. On the other hand, it is not without cost and the risk of attack by a driver is probably exceptionally low. In any case, the dispute comes down to a factual issue about the odds of attacks and a value assessment regarding the balance between the cost of the regulation (in terms of money, time, imposition, rights and so on) and the cost of the harm. My opinion is that fingerprinting does not seem an undue imposition given the (rather low) risk—but I do not have a very strong opinion on this point.

The second concern is the efficacy of the regulations in regards to the harm. There could be a significant harm that would warrant regulation to protect people, but the proposed regulation might be ineffective at achieving the goal. To use the Uber and Lyft example, the danger presented by drivers might be regarded as significant enough to justify imposing mandatory fingerprinting and the cost of said fingerprinting might be regarded as reasonable, but it might be the case that fingerprinting would not actually make passengers safer. To use another example, it might be true that voter fraud is a significant problem, but it could be the case that requiring voter ID would do nothing to address the fraud.

Since the justification for regulation is the prevention of harm, ineffective regulation would be unwarranted—provided that the defect lies in the regulation and not in, for example, a failure to actually enforce the regulations.

In the case of fingerprinting, it would seem to have some efficacy in screening out people who already have a criminal background. However, it would obviously not screen out people who do not have a record yet might present a danger. Because of this potential efficacy, I would not be opposed to requiring ride sharing drivers to undergo fingerprinting—but I am not strongly committed to this position and could easily change my position in the face of reasonable arguments.

 

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Apple, the FBI & Backdoors

Posted in Ethics, Law, Philosophy, Technology by Michael LaBossiere on February 19, 2016

Data breaches, hacking and device theft are a routine part of modern life. In order to help defend customers, Apple and Google added very effective security features to their phone operating systems. American law enforcement, who had grown accustomed to easy access to the treasure trove of evidence that is a smartphone, were generally dismayed by this—they could no longer get Apple or Google to unlock a phone because the phones were effectively unlockable.

In the light of revelations about the extreme ineffectiveness, egregious incompetence and privacy violations on the part of the state security apparatus, the public was generally in favor of the strong encryption offered by Apple and Google. The FBI, however, thinks it has found an ideal rhetorical tool to exploit against encryption: the murders in San Bernardino. The FBI has claimed that the work iPhone of one of the alleged attackers contains critical evidence and a judge has demanded that Apple write a special version of its iOS to enable the FBI to crack the phone. Apple, which has cooperated fully with the investigation to this point, has refused to create a means of breaking iPhone encryption. The company has made its case via a letter to the customers.

Since people have an irrational fear of domestic terrorism vastly out of proportion to the actual threat level, the FBI has chosen wisely with this case. They can try to make use of scare tactics and appeal to fear to get the public to unwisely side against Apple. Since I have argued at length against backdoors in general, I will not rehash those general, rational arguments here. Instead, I will focus on the situation at hand. Since I am not a lawyer, I will stick primarily to the ethics of the matter and leave the legal wrangling to those who have billable hours.

The standard argument in favor of giving the state access to private information, be it on a phone or written on paper, is based on security: the state needs that information in order to protect citizens from harm. In the case of the iPhone, the argument is presumably that the phone contains information the FBI needs to conduct its investigation. Since the person who knew the passcode is dead, the FBI cannot compel that person into allowing access to the phone. Either the FBI lacks the means to get into iPhones or has elected not to reveal that capacity, so they need to turn to Apple to access the data.

Others in law enforcement advance similar arguments: they have many phones that they think contains data relevant to cases and the argument from public safety should, they think, override all other concerns. Since the focus of the FBI and law enforcement in general is on finding and prosecuting criminals to protect the public, it makes sense that they would see the matter from that perspective. Apple and Google, as they see it, are helping the criminals and terrorists by providing them with unbreakable vaults for their data.

The argument from safety should not be simply dismissed.  After all, the primary function of the state is to protect its citizens and the usual utilitarian moral argument can be made in favor of endeavors aimed at reducing privacy in order to increase security.

The easy and obvious counter to this security argument is another security argument. If the United States government and law enforcement were the only ones who could access such data and could do so only via due process of the law, then it would be reasonable to allow such access. Unfortunately, such access cannot be limited to the United States and history has shown that the state has a rather vague notion of due process. Because of this, it seems likely that far more harm would be done by getting on the road the FBI wants Apple to walk. While law enforcement would, it is true, be able to crack some phones and get some information that would prove useful, this would be outweighed by the harm done to citizens by criminals and foreign states. After all, if law enforcement can get into an iPhone, then so can China and criminal hackers. It could, of course, be argued that my estimate is in error—that the harms prevented by allowing law enforcement into phones will vastly outweigh the harms that will occur from hackers getting into the phones of citizens and the harm done when foreigners decide to go with competing phones rather than risk using an American iPhone or Android phone. However, given the damage done by hacking and the fact that law enforcement can use other means of investigation (such as what they did before smart phones), this does not seem to be the case.

Another approach is to make use of stock conservative arguments against government overreach and in favor of rights. Conservatives routinely argue against government regulation, in favor of small government, against government intrusion and in favor of constitutional rights. While these arguments are usually employed against environmental regulations and in defense of gun rights, they would also apply with slight modifications to the matter at hand. Libertarians who grasp the concept of consistency are in favor of such encryption and against such intrusions into privacy rights. Unfortunately, some conservatives throw away their espoused principles in the face of overblown fears about terrorists and criminals. However, these principles need to be applied consistently and, if they were, conservatives should oppose such government overreach and intrusions into the freedom of businesses and into constitutional rights.

As a final point, consider the stock argument in favor of gun rights that citizens need guns in order to engage in self-defense and to do so even against the tyranny of the state. The same sort of argument would seem to apply in the case of phone encryption: it serves as a digital defense against criminals and terrorists, but also as a very real defense of the tyranny of the state. So, if citizens have a right to firearms to defend against the forcible acts of criminals and state tyranny in the physical world, they should have the right to encryption to defend against criminals and state tyranny in the digital world. What is needed is a suitable slogan on par with the NRA’s famous line about guns: “I’ll give you my data when you take my phone from my cold, dead hands.”

 

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Replacing Scalia

Posted in Law, Politics by Michael LaBossiere on February 17, 2016

Scalia 2016

The death of Antonin Scalia has left a vacancy on the United States Supreme Court and, of course, has set off a political storm of predictable proportions and positions.

For the most part, Republicans are claiming that Obama should not appoint a replacement. Rather, this should be left to the next President.  The current plan of the Senate Republicans seems to be to simply refuse to hold hearings. There is, however, some talk about holding hearings and simply rejecting anyone Obama nominates.

Democrats, as might be expected, tend to hold that Obama has the right to make the appointment and that the senate should confirm his choice. There is also some talk that if the Republicans obstruct the nomination, then Sanders or Clinton should nominate Obama if one of them is elected President.

Both parties are, as usual, engaging political maneuvering and trying to determine what will best benefit their party in terms of the upcoming elections and scoring political points. The Republicans are also operating on their principle of hating Obama and opposing everything he does. The Republicans hope that by engaging in obstructionism, they can appeal to their base and thus garner re-election for Republican senators who might be at risk. They also hope to milk this to help whoever is the Republican candidate. Interestingly, the Republican candidates are also using this matter to bash each other–although most bashing is being aimed at Jeb Bush. While some pundits claim that the Republicans can hurt themselves through their obstructionism, the past seems to show that they are rewarded politically for such behavior.

While most Democrats want Obama to be able to make the appointment, they are also working out how to best exploit the situation. One strategy is to nominate a candidate that is incredibly appealing and eminently confirmable so as to make the Republicans look bad, thus helping out Democratic candidates. While somewhat sensible as a strategy, it does rest on the assumption that it will win over voters who are not already won over. This might not prove to be as effective as the Democrats might hope.

Obviously enough, if the situation were reversed, the Republicans would be howling that the Republican president has every right to present a nominee and that the obstructionist Democratic senators would be obligated to hold hearings and approve his choice, no doubt for “the good of the country.” The Democrats would, of course, be screeching that the nomination must wait for the next president and that they are acting for “the good of the country.” As always, I prefer to operate on the basis of principle rather than operating on what just happens to be in my interest at the moment. As such, I will endeavor to consider the matter as neutrally as possible and put forth a position that I can hold regardless of which party is on which side.

Since Scalia professed to be a constitutional originalist, it is fitting to refer to the Constitution and see what it says about this matter. Article II, Section 2 of the Constitution addresses the process of Supreme Court appointments:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

While I am not a constitutional scholar, I can read English well enough to see what the Constitution specifies about this matter. The president unambiguously has the power to nominate Judges of the Supreme Court. Since Obama is still the President, he has the constitutional right to make the nomination. This would, obviously enough, hold up to the point at which he ceases to be President. Obama can also make appointments when the Senate is in Recess-there is, however, debate about what exactly counts as recess. However, the text is clear that any such appointment would last only until the end of the next session of the Senate, thus putting a clear and short limit on such appointments.

The text is also clear that the appointment of the Judges of the Supreme Court requires the “advice and consent” of the Senate. Since the constitution does not actually specify the process, the Senate has created its own confirmation rules. In general, the approval process has been fairly quick in the past-so there is no real argument that there is not enough time to give an Obama nominee appropriate consideration. There have also been appointments made in the last year of a President’s term-so an appointment by Obama would be consistent with past precedent. That said, since the Senate makes its rules, they have every right to make whatever changes they see fit-provided that they are consistent with the Constitution. This would certainly open the door to running out the clock on hearings or even refusing to hold them. However, refusing to hold a hearing could be problematic. The text certainly seems to indicate that the Senate is supposed to provide its advice and give or withhold its consent. There does not seem to be an option for refusing to consider a nominee. This, as some would argue, would seem to be simply refusing to do their job. That said, it could be argued that refusing to hold hearings would be refusing consent, and thus it is within their power. The filibuster could also be deployed as well to delay proceedings and run out the clock, so to speak. As such, the Senate does seem to have the right to obstruct the president in regards to nominations, which would obviously run afoul of the need to fill the vacancy.

My own view is that since the President has the right to nominate and the Senate has the role of advice and consent (or refusal of consent), the Senate is obligated to consider the nomination made by the president. Refusing to do so or running out the clock would be a failure of their specified duty. I hold to this view regardless of the political parties of those involved and will, of course, leave this post up in perpetuity in case the situation should arise with a Republican president and a Democrat dominated senate.

 

Mount St. Mary’s University III: Drowning Bunnies & Retention

Posted in Ethics, Philosophy, Universities & Colleges by Michael LaBossiere on February 15, 2016

While students have long been concerned about their grade points, colleges and universities have become enthralled by numbers. Many state schools, such as my own Florida A&M University, are being held hostage by numbers—they have been locked into the death match of number driven performance based funding. Even private, non-profit schools have fallen victim to number obsession. One rather unfortunate recent example involves Mount St. Mary’s University.

President Simon Newman devised a plan to improve the school’s retention rate by culling students before the federal reporting deadline. The plan was to get students to complete a survey described as a “valuable tool that will help you discover more about yourself.” In reality, the survey was intended to identify the students to be culled. In response to some resistance to the plan, Newman responded by saying “This is hard for you because you think of the students as cuddly bunnies, but you can’t.  You just have to drown the bunnies…put a Glock to their heads.”

While Newman’s proposed solution and its fallout proved to be a disaster for the university, schools do need to address the problem of retention. For all schools, improving retention is important for improving the reputation and status of the school. This applies both to how the school is ranked and how the school is perceived by prospective students and their parents. For many public schools, improving retention is important for maintaining or improving their funding from the state. Many states have adopted punishing performance based funding systems such that schools are forced to fight to avoid being the victims of funding cuts. There is also the matter of the students—retaining students so that they graduate is certainly beneficial to these students. After all, students leaving school and having little to show for it other than debt is not good for anyone.

There are various ways to approach the problem of retention. One approach, which was the general plan of Newman, is to cull the students who are least likely to be retained. If successful, this will improve the school’s numbers. While this approach seems harsh, it can be defended. An obvious defense is that schools already use a culling process, specifically the application process. In this case, the “bunnies” are drowned before they even get to the gates of the school. Another defense is to draw an analogy to sports. Many teams have both a varsity and junior varsity. Athletes compete to be on the varsity team and sometimes even to remain on the team. This, it can be argued, is the nature of competitive activities. Since schools are in competition, they can be looked at as analogous to sports teams: they need to have the best players they can get in order to improve their performance in the competition for status and funds. As such, the numbers are improved because poor performers are removed from the herd.

This approach does raise numerous concerns about having a competition model in education, especially in regards to funding for public institutions. One concern is that such an approach will abandon students from the lower economic classes—there is, after all, a strong causal link between the economic class of students and their retention and graduation rates. One obvious reason is that poorer students have less resources to pay for school and need to spend more time working. Another concern is with the methods that would be used to cull the students after they have been accepted. After all, the goal of such a culling is to be rid of them before they damage the numbers; so the culling process needs to predict performance rather than be based upon it. As such, the culling could easily prove to be unfair.

A second approach is to improve the pre-culling of students. My university has had the traditional role of offering opportunity to students who otherwise would not have such opportunities. This, not surprisingly, results in lower retention and graduation numbers relative to schools that focus on admitting those most likely to succeed (usually people from the middle and upper economic classes). It has been recommended that our approach be replaced with stricter admission requirements, thus abandoning many potential students. While this would have the benefit of improving the school’s numbers, it would have the serious disadvantage of denying many potential students the chance to succeed. These students would generally be from the lower income classes, thus helping to perpetuate poverty.  As such, pre-and post-admission culling have the same sort of problems.

An alternative to culling is to strengthen the students. That is, focus on improving the students’ chances of remaining in school and succeeding. This would bring up the numbers by improving performance. To use a sports analogy, this would be like a team that focused on training its athletes to be better rather than focusing on getting rid of the athletes that did not perform as well. One major downside to this approach is that it would require expending resources: lower income students would need more financial support, students who are less well prepared (who are often lower income) would need extra help, and so on. Since many schools have either embraced the business model or have had state legislatures ram it down their throats (to use one of Marco Rubio’s favorite lines), it is not surprising that this approach is less favored. After all, it is cheaper to pre-cull and cull than it is to provide broad opportunity for success.

A reasonable response to concerns about opportunity is to argue that it is better to use the limited resources for students who are more likely to succeed rather than waste them on students who are likely to fail. While this does have considerable merit, there is still the moral concern regarding denying opportunity in the name of economy. That said, it is certainly reasonable and rational to consider how resources should be best used.

My own view is that in a country as wealthy as the United States, schools should err on the side of opportunity. In addition to the usually “left” arguments about equality and justice, there is also a solid conservative argument: while some money will be “wasted” on students who are not retained, the return on investments in retention should pay off handsomely in terms of improved income, reduced crime, and enhanced opportunities. That is, in the long term the cost of investing in education will be far less than the cost of not doing so.

 

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Mount St. Mary’s University II: Business Leaders

Posted in Ethics, Philosophy, Universities & Colleges by Michael LaBossiere on February 11, 2016

As so many schools now do, Mount St. Mary’s University decided to look to the business world to find a president and selected Simon Newman. While Newman does have a graduate education, he had no previous professional academic experience. He, however, has thirty years of experience in the realm of finance and business. His plan for the school was to “raise a lot of capital and start a lot of programs and start the university on a more aggressive growth trajectory.” It was hoped that he would capitalize on the “incredible brand” of the school in raising said capital.

Rather ironically, Newman has damaged that “incredible brand” by  embroiling Mount St. Mary’s University in a public relations disaster through his plan to cull students and his culling of faculty.  This is presumably not what the university hoped would happen—the plan was hiring Newman would improve the geographic diversity of the students and boost both the school’s endowment and its reputation.

This incident is not the only one that has occurred because of the common practice of hiring business leaders to fill administrative posts at schools.  There is also a similar trend in politics, with business people with no political experience being lauded as good choices for political offices (including the presidency). As such, it is well worth considering this matter.

One approach to justifying the choice to hire business people into academic administration (or elect them to office) is to argue that being a business person qualifies one for such positions. For example, that managing a private equity firm makes a person qualified to be a university president. Or president of the United States.

One obvious problem with this is revealed by consideration of the fallacious appeal to authority. This occurs when the expert/authority used to support a claim is not a legitimate expert relative to the claim. This commonly occurs when the alleged expert is an expert in one area, but not in the area of concern—expertise in one area does not automatically confer expertise in another. Likewise, a person could be great at business, but this does not confer expertise in academic administration.

Another problem with this is revealed by Socrates’ battle with Ion in the Ion. Socrates makes the point that a person who is the master of a field becomes a master by mastering that field rather than mastering some other field. For example, a doctor of medicine masters medicine by mastering medicine, not mechanical engineering. Obviously enough, a person who has mastered one field has not automatically mastered another. For example, one who has mastered running a hedge fund has not mastered being a university president.

Interestingly, these problems are recognized in almost all cases except those involving business persons seeking to be university administrators or office holders. If a person who worked assembling cars claimed to have thus mastered assembling code, they would not be believed. And rightly so. While both involve assembling, they are very different. If an athlete who mastered basketball (such as Michael Jordan) claimed to have thus mastered baseball, then they would be doubted. While both are sports involving balls, the skill sets are rather different.

One reply to these sort of objections is to argue that the skill set of a business person does apply to academic administration (and holding political office). For example, leadership skill could be seen as suitably “generic” so that a person who can lead a company as a CEO is thus qualified to lead as a university president (or president of the United States).

One problem is that even those who think that business people are qualified and even ideal for academic administration (or political office) do not usually think the reverse holds. For example, if a philosophy or engineering professor who became an administrator claimed he was thus qualified to run a hedge fund without any business experience, he would be mocked. As another example, if a state senator without any business experience claimed that he should be hired as the CEO of a firm, she would almost certainly not get the job (except as a payback for years of political favors, of course). This is a point well made by Socrates in the Ion: Ion claims that being a rhapsode also makes him a general; Socrates points out that this would make a general a rhapsode. Ion, as should be expected, did not like that idea.

Another problem is that while it is true that there are general skills, there is still the very reasonable concern that the general skills might not enough to properly do the job. To use an obvious example, I have over two decades of experience teaching philosophy classes. As such, I have a range of general teaching skills. However, this would not qualify me to teach biology classes—I would need to have knowledge of biology. I could, of course, learn enough biology to be competent to teach it. Likewise, a business person could learn to apply her general skills to a job as an administrator—but this would require learning the job. But, just as it would be unwise to hire me as a biology professor just because I could learn to do it, it would be unwise to hire (or elect) a business person to a position just because they could learn to do it eventually.

While the above arguments seem reasonable, there is still a way to argue in favor of hiring (or electing) business people into positions in academics (or politics). If it could be shown that an administrative position (or elected office) is, in fact, the same as a business position, then a business person would be a reasonable choice.

In some cases, this is obviously true. There are administrative posts that are functionally identical to business posts in companies and someone who has done the job in a company would thus be as qualified to do the job at a university. Where it becomes a matter of concern is in regards to positions that are not analogous to business positions. Addressing this properly would require considering each job, which goes far beyond the intended scope of this essay. However, I will briefly address the position of university president.

While the traditional university president is an academic who has transitioned into the leadership role after a distinguished career in the academy, some schools have redefined the role of president in terms of being a fundraiser and business leader. That is, the president is not primarily guiding the academy as an institute of higher learning, but running it as a business in order to increase capital and enhance the brand. If this is the proper role of the university president, then a business person would nicely fit this role. After all, this is reshaping the university from an academy to a business and a business leader should lead a business.

While mostly or completely transforming a university into a business would make business people suitable for positions in the university business, there is still the question of whether or not this is a good idea. To use an analogy, transforming a cruise ship into a pirate ship would make it so a pirate would be a suitable captain, but this might not be a good idea—especially for the passengers.  Likewise, transforming a university into a business might not be a good idea-especially for the students.

 

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Mount St. Mary’s University I: Duty of Loyalty

Posted in Universities & Colleges by Michael LaBossiere on February 10, 2016

Mount St. Mary’s University, a well-respected Catholic institution, has recently been dragged into a public relation disaster by President Simon Newman. It started when Newman devised a plan to improve the school’s retention rate by culling students prior to the federal reporting deadline. The plan was to get students to complete a survey described as a “valuable tool that will help you discover more about yourself.” In reality, the survey was intended to identify students for the culling.

In response to moral concerns raised in regards to his plan, he replied that “This is hard for you because you think of the students as cuddly bunnies, but you can’t.  You just have to drown the bunnies…put a Glock to their heads.”  When this remark and the facts of the matter became public courtesy of the  student newspaper, the trouble began in earnest.

Unfortunately, the president’s desire to cull did not end with the freshmen. Newman fired tenured associate philosophy professor Thane Naberhaus and communications professor and faculty advisor for the student newspaper Ed Egan. He also removed two other philosophy professors from their administrative positions. Joshua Hochschild was removed from the position of dean of the College of Liberal Arts and David Rehm was taken from the position of provost. John Schwenkler, a fellow runner and a philosophy professor across the tracks from me at Florida State University, created a petition to protest these firings.

While it is a common misconception that tenure protects a professor from being fired, the reality is that tenured professors can still be fired for cause. In the case of Naberhaus, Newman claimed the professor violated his “duty of loyalty to [the] University.” The philosopher was also “designated persona non grata” and banned from the campus.

This situation does raise many legal concerns which will, no doubt, be addressed by lawyers. Since I am not a lawyer, I will leave the legality of these actions (especially the firing of the professors) to the experts. However, I will address the moral issue of firing faculty on the grounds of violating a “duty of loyalty to the university.” Since the concepts of duty and loyalty are moral concepts, this is clearly a moral matter.

While one could spend countless hours battling over the semantics of “duty” and “loyalty”, I will stick with a concise account that has intuitive appeal. A duty of loyalty to an institution is violated when a person knowingly and willingly acts contrary to the proper purpose of an institution that justly imposes a moral obligation on the person. If a person has no moral obligation to the institution, then he cannot violate a duty of loyalty. If a person is not acting contrary to the proper purpose of the institution, then the charge of disloyalty would be unfounded. After all, the person would be acting in a manner that is loyal to the university.

While there is an ever increasing push to redefine the university as a business with “loyalty” a matter of contracts and payments, it is still reasonable to regard a professor as having the requisite obligation to the university. As Socrates argued in regards to the state, by remaining at the university and accepting the goods it provides, the professor has accepted the obligation. Naturally, there is the usual exceptions for force or fraud being used against the professor. This, then, obligates the professor to the proper purpose of the university. As such, a professor could violate her duty of loyalty.

A rather more difficult matter is working out the proper purpose of a university. This is critical to determining whether a professor has violated her duty of loyalty to that institution. One approach is to define the purpose in terms of whatever the administration (primarily the president) says it is. While this would simplify matters, it is a problematic and unappealing approach. To use the obvious analogy, the loyalty of those who have a duty to the United States belongs not to the individuals who happen to hold office, but to the Constitution. To use a specific example, officers in the United States military do not swear an oath to the person who happens to occupy the office, be it Obama or Trump. As such, if the president orders an officer to violate the Constitution, the officer’s refusal is an act of loyalty rather than disloyalty to the United States.

A similar thing should hold in the case of an institution like a university—they are not supposed to exist to serve the whims or needs of the leadership of the time, but to serve the foundational principles of the institution. As such, an alternative approach is needed.

While universities will vary in their specific purposes, the core mission of a university would seem to involve doing what it is that universities do. Going back to the analogy of the state, if the state is supposed to serve the good of the people and defend life, liberty and property, then the university should serve the good of the students and defend truth, academic freedom, and the advancement of knowledge.

Getting back to the case at hand, the faculty who were fired were serving the proper mission of the university: they were acting for the good of the students and doing so, based on the evidence, from compassion and moral concern. As such, it is the faculty who remained loyal to the university. In contrast, the president violated his duty of loyalty to the university by acting contrary to the true purpose of an institute of higher learning. Thus, if disloyalty should be punished by being fired, the president should be fired.

 

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Lawful Evil & Working with Dictators

Posted in Ethics, Philosophy by Michael LaBossiere on February 8, 2016

While role-playing games like D&D, Pathfinder, and Call of Cthulhu are typical seen as escapes from reality, they provide many useful conceptual tools for dealing with the real world. One of these, which I have written about on numerous occasions is the alignment system created for Advanced Dungeons & Dragons. While based in fantasy, it serves remarkably well for quickly classifying people and actions in real life.

During a conversation with Eric Molinsky about this matter, we used various dictators as examples of the lawful evil alignment. In Pathfinder, which is a version of D&D, lawful evil is described in the following manner:

A lawful evil character goes about her business motivated by her own interests, but knows that ultimately order protects her. She seeks to achieve her own ends—but through order, not chaos. Even when boiling with anger, she is more likely to carefully plot vengeance than risk her own death through hasty actions. Sometimes that revenge will take years to happen, and that is acceptable.

A lawful evil character at the extreme end of the spectrum is zealous in her aims and will make any sacrifice to achieve them. Her twisted philosophy can make her paranoid of her closest followers, even family and friends. She stops at nothing to gain control, for only through control can she have peace. Yet even the most powerful and ordered society has its enemies, and to a lawful evil character only the destruction of those enemies can bring fulfillment.

Order is everything, at any cost.

Dictators tend to fit this description quite well. They are devoted to their order and are quite committed to the use of their legal systems. They also tend to be quite evil—employing secret police, torture, domestic spying, and brutal military oppression against the citizens. Bashar al-Assad is an excellent example of a lawful evil dictator: he is very much committed to order, but embraces evil. While the West has asserted that Assad must go, he is being backed by Russia. Russia, it can be said, has its own lawful evil dictator in Putin. As such, the Putin-Assad alliance is not particularly surprising. That said, the West (which likes to profess goodness) has long been happy to accept evil dictators as allies. During the cold war, this was standard practice for the United States. Even now, the United States is quite willing to remain allied with what amount to dictators—perhaps because our professed goodness merely masks the fact that we are also lawful evil. Or, slightly less cynically, that we accept evil on pragmatic ground: we need the ABCs (allies, bases, and crude oi).

Returning to Assad, the West seems to at best have a weak commitment to being rid of him. One reason for this is consideration of the consequences. The deaths of Hussein and Qaddafi mainly served to lay the rubble foundation for chaos. While they were bad men, they did maintain order (that is, they were lawful evil). Daesh (also known as “ISIS”) grew in the order vacuum in Iraq and seems to also fit within the alignment system, most commonly regarded as chaotic evil:

A chaotic evil character is driven entirely by her own anger and needs. She is thoughtless in her actions and acts on whims, regardless of the suffering it causes others.

In many ways, a chaotic evil character is pinned down by her inherent nature to be unpredictable. She is like a spreading fire, a coming storm, an untested sword blade. An extreme chaotic evil character tends to find similarly minded individuals to be with—not out of any need for company, but because there is a familiarity in this chaos, and she relishes the opportunity to be true to her nature with others who share that delight.

 

While Daesh does have structure and plenty of rules, it does (like most terrorist groups) fit quite smoothly into chaotic evil. While states are willing to work with dictators like Assad, states are generally not willing to work with groups like Daesh (though they are often willing to use them). In contrast, states are often quite willing to work with lawful evil dictators—Assad and Daesh serve as good examples here.

Interestingly, the context of role-playing games is useful to explain the difference. The standard approach to play in games like D&D is to form a party of player characters (the roles taken by the players, such as wizard, fighter, rogue or cleric). This party then goes on adventures, typically to fight monsters and get loot. Since the party is typically outnumbered or up against powerful foes (or both), cooperation is essential—the players need to work together to succeed. As might be guessed, good aligned characters tend to be the best at this cooperation—they will not betray each other and can be trusted. Second best are neutral characters, especially those that are lawful rather than chaotic. Lawful evil characters can also work well with the party—while they are evil, they follow rules and are (in their evil way) team players. They value social order and their reputation within that order. Some even have compunctions—boundaries on their evil. As such, they can be trusted to a degree.

In contrast, chaotic evil characters are effectively psychotic—they cannot be trusted and cannot be depended on. They do not care about the social order nor do they worry about their reputation in society. Chaotic evil generally is not a viable alignment for player characters—if the player is playing the alignment properly. That said, there are players who will disagree with this.

The same sort of reasoning seems to be applied to evil dictators and terrorist groups. While dictators are evil, they do operate within the social order and are concerned about their status and reputation within that order. As such, they are willing to stick to agreements (mostly). As such, they can sometimes be trusted within certain limits.

In contrast, the chaotic evil terrorist groups cannot be trusted. They do not care about the social order and their reputation in that order (except for a reputation of being terrifying). They are the greater evil, so it is no wonder that the lawful evil are chosen over them. But, as a wise gamer once said, “never forget that lawful evil is still evil.”

 

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