A Philosopher's Blog

Taxing the 1% IV: Incentives

Posted in Ethics, Law, Philosophy, Politics by Michael LaBossiere on November 25, 2015

As noted in previous essays on this topic, the highest income folks in the United States now pay about 1/3 of their income in taxes.  The left has proposed increasing the tax rate to 40% or even 45% while the right has countered with proposals to either not raise taxes or cut them even more. This, the final essay in this series, considers the stock argument that a tax increase will be a destroyer of incentives.

The gist of the argument is that if the taxes for the top income brackets is increased to 40% or higher, the rich will become demotivated and this will have negative consequences. Since these negative consequences should be avoided, the conclusion is that taxes should not be increased—thus keeping the incentives in place.

In terms of assessing this argument, there are two major points of concern. One is whether or not a tax increase would destroy the incentives of the top economic class. The other deals with the negative consequences, their nature, their likelihood of occurring and the extent and scope of the harm. I will begin with the alleged consequences.

The alleged consequences are many and varied. One is based on the claim that the top economic class contains the innovators and if they are demotivated, then there will be less innovation. This could range from there being no new social media platforms to there being no new pharmaceuticals. While this is a point of concern, this assumes that innovation arrives primarily out of the top economic class—a matter that can tested empirically. While some top earners are innovators, much of the innovation seems to come from those in the lower economic classes—such as the folks in the labs doing the actual research and engineering. The idea that the rich are the innovators certainly matches the fiction of Ayn Rand, but seems to miss the way research and development actually occurs.

Another is based on the claim that the top class serve as the investors that provide the capital that enables the economy to function. Since the top class controls the capital, this is quite a reasonable concern. If Americans with the largest shares of the money decided to reduce or stop investing, then the economy would need to rely on foreign capital or what could be provided by the lower classes. Since the lower classes have far less money (by definition), they would not be able to provide the needed financial support. There are, of course, foreign investors who would happily take the place of the wealthy Americans, so the economy would probably still roll along. Especially since American investors might find the idea of losing out to foreign investors sufficient motivation to overcome the demotivation of a tax increase.

There is also the claim that the top income class contains the people who do the important things, like brain surgery and creating the new financial instruments that will take down the world economy next time around. While this does have some appeal, it seems that much of the important stuff is done by people who are not in the top classes. Again, the idea that the economic elite are doing the important stuff while the rest of the people are not (or are takers rather than makers) is yet another part of the fictional universe of Ayn Rand.

Fairness does, however, require that these matters be properly investigated. If it can be shown that the top class is as critical as its defenders claim, then my assertions can be refuted. Of course, it is well worth considering that much of the alleged importance of the top class arises from the fact that it has a disproportionate share of the wealth and that it would be far less important if the distribution were not so grotesquely imbalanced. As such, a tax increase might have the impact of decreasing the alleged importance of the top economic class. I will now turn to the matter of whether or not a tax increase would demotivate the top economic class.

One easy and obvious response to the claim that a relatively small tax increase would demotivate the top economic class is that the vast majority of the rest of us work jobs, innovate, invest and do important things for vastly less than those at the top. Even if the rich paid slightly more taxes, their incomes would still vastly exceed the rest of us. And if we can find the motivation to keep going despite the relative pittances we are paid, then the rich can also do so. When I worked a minimum wage job, I was motivated to go to work. When I was an adjunct making $16,000 a year, I was still motivated to go to work.

It could be replied that the lower classes are motivated because they need the income to survive. We need to work to buy food, medicine, shelter and so on. Those who are so well off that they do not need to work to survive, it could be claimed, also have the luxury of being demotivated by a slight decline in their income. Whereas someone who must earn her daily bread at a crushing minimum wage (or less) job has to get up and go to work, the top economic folks can allow themselves to be broken by the slight tax increase and decide to stop investing, stop innovating, and stop doing important stuff.

One reply is that it seems unlikely that the top folks are so weak as to be broken by a slight tax increase. Naturally, a crushing increase would be a different story—but there are no serious proposals to inflict crushing tax burdens on the rich. After all, crushing burdens are for the poor. Another reply is that if the current rich become demotivated, there are plenty of people who will be happy to take their place—even if it means paying slightly higher taxes on a vastly increased income. So, we would just get some new rich folks to replace the demotivated slackers—capitalism at its finest.


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Taxing the 1% III: The Avoidance Argument

Posted in Business, Ethics, Law, Philosophy, Politics by Michael LaBossiere on November 16, 2015

As noted in previous essays on this topic, those with the highest income in the United States currently pay about 1/3 of their income in taxes. Some on the left have proposed increasing the tax rate to 40% or even 45%. For the most part, conservatives oppose these proposed tax increases. This essay will look at the avoidance argument against this increase.

The gist of this argument is that the tax increase is pointless because the rich will simply find ways to nullify the increase. They might use already established methods or develop new ones, but (the argument goes) they will manage to avoid paying the increase.

This argument does has a certain appeal—after all, there is little sense in engaging in actions that will have no effect. As such, it would seem reasonable to leave things as they are, since this change would do exactly that—only at the cost of enacting ineffective legislation.

Despite this appeal, there are two key factual issues that need to be addressed. The first is the issue of whether or not the rich would try to avoid the tax increase. Some of the wealthy have at least claimed to favor higher tax rates, so they might elect to accept the increase. However, most people (be they rich or not) generally prefer to not pay more taxes. There is also the fact that many of the rich already do all they can to minimize their tax burden. There is no reason to think that a tax increase would change this behavior. As such, it is reasonable to infer that most of the rich would try to minimize the impact of the tax increase.

The second factual issue is whether or not the rich would be able to nullify the tax increase. Or, if they cannot completely nullify it, the focus would be on determining the degree of nullification. One approach to this question is to consider that if the rich are concerned about the tax increase, then this indicates that it would affect them. After all, people generally do not worry about things they believe will not affect them.

A reasonable counter to this is that while the rich will be affected by the tax increase, their concern is not that they will be paying more taxes, but that avoiding the increase will cost them. For example, they might have to pay lawyers or accountants to enable them to neutralize the increase.  Or they might need to lobby or “donate” to politicians. Some even claim that the rich would be willing to expend considerable resources to mitigate the tax increase—if this expenditure would be lower than what paying the increase would cost them, then this approach could be rational. It could even be claimed that some might be willing to pay more to avoid the taxes than the taxes would cost them, perhaps as a matter of principle. While this sounds odd, it is not inconceivable.

Another approach is to consider how effectively the rich avoid existing taxes. Even if they are somewhat effective at doing so, the increase could still impact them and thus generate more tax revenue (which is the point of the tax increase). As such, an increase could be effective in regards to the stated goal of increasing revenue.

In addition to the factual issues, there is also the issue of whether or not the principle that underlies this argument is a good principle. The principle is that if people will be able to avoid a law (or policy), then the law should not be put in place.

As noted above, this principle does have a pragmatic appeal: it seems irrational to waste time and resources creating laws or policies that will simply be avoided. This sort of avoidance argument is also used against proposed bills aimed at gun control. Interestingly enough, many of those who use the avoidance argument in regards to gun control do not accept this same argument when it comes to attempts to limit abortion or to keep marijuana illegal. This is as should be expected: people tend to operate based on preferences rather than on consistent application of principles.

One possible response is that if a law is worth having, then steps should be taken to ensure that people cannot simply avoid it. If it was found that some people were able to get away with murder, then the morally right reaction would not be to simply give up on the law. The correct reaction would be to ensure that they could not get away with murder. Naturally, it can be argued that the tax increase would not be a law worth having—but that is a different argument distinct from the avoidance argument being addressed here.

A second possible response is to reject the consequentialist approach and take the approach that the fact that people will be able to avoid a law or policy is not as important as the issue of whether or not the law or policy is right. Some people take this approach to drug laws: they accept that the laws are ineffective, but contend that since drug use is immoral, it should remain illegal. As always, consistency is important in these matters: if the principle that moral concerns trump the pragmatic concerns is embraced, then that principle needs to be applied consistently in all relevantly similar cases. If the principle that the pragmatic should trump the moral is accepted, then that needs to be applied consistently to all relevantly similar cases. While the issue of whether such a tax increase is morally right or not is important, my concern here is with the avoidance argument. But, if the tax increase is not the right thing to do and the rich would just avoid it, then imposing it would be both wrong and a bad pragmatic choice.


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Taxing the 1% II: Coercion

Posted in Business, Ethics, Law, Philosophy, Politics by Michael LaBossiere on November 11, 2015

As noted in my previous essay on this topic, those with the highest income in the United States currently pay about 1/3 of their income in taxes. There have been serious proposals on the left to increase this rate to 40% or even as high as 45%. Most conservatives are opposed to any increase to the taxes of the wealthy while many on the left favor such increases. As in the previous essay on this subject, I will focus on arguments against increasing the tax rate.

One way to argue against increasing taxes (or having any taxes at all) is to contend that to increase the taxes of the wealthy against their wishes would be an act of coercion. There are more hyperbolic ways to make this sort of argument, such as asserting that taxes are theft and robbery by the state. However, I will use the somewhat more neutral term of “coercion.” While “coercion” certainly has a negative connotation, the connotations of “theft” and “robbery” are rather more negative.

If coercion is morally wrong, then coercing the wealthy into paying more taxes would be wrong. As such, a key issue here is whether coercion is wrong or not. On the face of it, the morality of an act of coercion would seem to depend on a variety of factors, such as the goal of the coercion, the nature of the coercive act and the parties involved. A rather important factor is whether the coerced consented to the system of coercion. For example, it can be argued that criminals consented to the use of coercive force against them by being citizens of the state—they (in general) cannot claim they are being wronged when they are arrested and punished.

It could be claimed that by remaining citizens of the United States and participating in a democratic political system, the richest do give their consent to the decisions made by the legitimate authorities of the state. So, if Congress creates laws that change the tax rates, then the rich are obligated to go along. They might not like the specific decision that was made, but that is how a democratic system works. The state is to use its coercive power to ensure that the laws are followed—be they laws against murder, laws against infringing the patents of pharmaceutical companies or laws increasing the tax rate.

A reasonable response to this is that although the citizens of the state have agreed to be subject to the coercive power of the state, there are still moral limits on the power. Returning to the example of the police, there are moral limits on what sort of coercion they should use—even when the law and common practice might allow them to use such methods. Returning to the matter of laws, there are clearly unjust laws. As such, agreeing to be part of a coercive system does not entail that all the coercive actions of that system or its laws are morally acceptable. Given this, it could be claimed that the state coercing the rich into paying more taxes might be wrong.

It could be countered that if the taxes on the rich are increased, this would be after the state and the rich have engaged in negotiations regarding the taxes. The rich often have organizations, such as corporations, that enable them to present a unified front to the state. One might even say that these are unions of the wealthy. The rich also have lobbyists that can directly negotiate with the people in the government and, of course, the rich have the usual ability of any citizen to negotiate with the government.

If the rich fare poorly in their negotiations, perhaps because those making the decisions do not place enough value on what the rich have to offer in the negotiations, then the rich must accept this result. After all, that is how the free market of democratic politics works. To restrict the freedom of the state in its negotiations with rules and regulations regarding how much it can tax the rich would be an assault on freedom and a clear violation of the rights of the state. If the rich do not like the results, they should have brought more to the table or been better at negotiating. They can also find another country—and some do just that. Or create or take over their own state.

It could be objected that the negotiations between the state and the rich is unfair. While the rich can have considerable power, the state has far greater power. After all, the United States has trillions of dollars, police, and the military. This imbalance of power makes it impossible for the rich to fairly negotiate with the state—unless there are rules and regulations governing how the rich can be treated by the greater power of the state. There could be, for example, rules about how much the state should be able to tax the rich and these rules should be based on a rational analysis of the facts. This would allow a fair maximum tax to be set that would allow the rich to be treated justly.

The relation between a state intent on maximizing tax income and the rich can be seen as analogous to the relation between employees and businesses intent on maximizing profits. If it is acceptable for the wealthy to organize corporations to negotiate with the more powerful state, then it would also be acceptable for employees to organize unions to negotiate with the more powerful corporations. While the merits of individual corporations and unions can be debated endlessly, the basic principle of organizing to negotiate with others is essentially the same for both and if one is acceptable, so is the other.

Continuing the analogy, if it is accepted that the state’s freedom to impose taxes should be regulated, limited and restricted by law, then it would seem that imposing limits, regulations and restrictions on the economic freedom of employers in regards to how they treat employees. After all, employees are almost always in the weaker position and thus usually negotiate at a marked disadvantage. While workers, like the rich, could try to find another job, create their own business or go to another land, the options of most workers are rather limited.

To use a specific example, if it is morally right to set a rational limit to the maximum tax for the rich, it is also morally right to set a rational limit on the minimum wage that an employee can be paid. Naturally, there can be a wide range of complexities in regards to both the taxes and the wages, but the basic principle is the same in both cases: the more powerful should be limited in their economic impositions on the less powerful. There is also the shared principle of how much a person has a right to, be it the money she keeps or the money she is paid for her work.

Like any argument by analogy, the argument I have made can be challenged by showing the relevant similarities between the analogues are outweighed by the relevant dissimilarities. There are various ways this could be done.

One obvious difference is that when the state imposes taxes on the rich, the state is using political coercion. In the case of the employer imposing on the employee, the coercion is economic (although some employers do have the ability to get the state to use its coercive powers in their favor). It could be argued that this difference is strong enough to break the analogy and show that although the state should be limited in its imposition on the rich, employers should have considerable freedom to employ their economic coercion against employees. The challenge is showing how political coercion is morally different from economic coercion in a way that breaks the analogy.

Another obvious difference is that the state is imposing taxes on the rich while the employer is not taxing her employees. She is merely setting their wages, benefits, vacation time, work conditions and so on.  So, while the state can reduce the money of the rich by taxing them, it could be argued that this is relevantly different from an employer reducing the money of employees by paying low wages. As such, it could be argued that this difference is sufficient to break the analogy.

As a final point, it could be argued that the rich differ from employees in ways that break the analogy. For example, it could be argued that since the rich are of a better economic class than employees, they are entitled to better treatment, even if they happen to be unable to negotiate for that better treatment. The challenge is, of course, to show that the rich being rich entitles them to a better class of treatment.


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Fox & the War on Cops

Posted in Ethics, Law, Philosophy by Michael LaBossiere on October 14, 2015

After bringing the world live coverage of the War on Christmas from their own minds, the fine folks at Fox have added coverage of the War on Cops. The basic idea is that violence against cops has increased dramatically and that cops are being targeted. Blame is laid primarily on the Black Lives Matter movement and, this being Fox, President Obama.

Unlike the War on Christmas, Fox does have some real-world basis for the claims about violence against police officers. Police officers are, in fact, attacked and even killed in the line of duty. In some cases, officers are specifically targeted and murdered simply for being police. The harming of citizens, be they police or not, is clearly a matter of concern. The problem is that while police do face the threat of violence, Fox’s rhetoric and claims simply do not match reality. Unfortunately, Fox’s campaign has had an impact: there are polls that show a majority believe there is a war on police.

One challenge in sorting out this matter is the fact that “war” is not well-defined. If all it takes for there to be a war on a group is for there to be any violence against that group, then there is a war on cops. A problem with accepting this account of war would be that there would be a war against all or nearly all groups, thus making the notion all but useless.

Intuitively, if there is a war on a group, then what would be expected is high levels of violence against that group. If the war is something that started at a certain point, then there should be a clear and significant upswing in incidents in violence from that point. While working things out properly would require setting and arguing for clear standards (such as what counts as high levels of violence) the statistical data shows that violence against police has been steadily trending downward rather than upward.

Those claiming there is a war on cops tend to note that there was an increase in violence against police relative to 2013—but they seem to ignore the fact that 2013 is currently the lowest point of such violence and 2015 is, if the trend stays consistent, on track to be the second lowest year.  Ever. As such, the claim that violence against police has increased since 2013 is true, but this does not serve as evidence for a war on cops. To use an analogy, if a person was at his lowest adult weight in 2013 and his weight increased since then, this does not entail that he is obese or that he is trending towards obesity.

Given the fact that violence against police has been steadily trending downward and 2015 is on track to be the second lowest year, it seems evident that there is no war on cops—at least under any sensible and non-hyperbolic definition of “war.”

It could be countered that there is a special sort of war on cops, as evidenced by a few incidents involving intentional targeting of cops (as opposed to criminals engaging police trying to stop them). While such incidents are certainly of concern both to police and responsible citizens, they do not serve as adequate evidence for the claim that there is a war on cops. This is because a war is a matter of statistics, not terrifying individual incidents. To reject a claim supported by body of reasonable statistical evidence on the basis of a small number of examples that go against the claim is, in fact, the classic fallacy of anecdotal evidence. And, as noted above, the statistical evidence is that violence against police has been on a steady downward trend, with 2013 being the lowest level of violence against United States police in recorded history.

It could also be asserted that the war on cops is not a war of actual violence, but a war of unfair criticism: the cops are under attack by the liberal media and groups that are often critical of police actions, such as Black Lives Matter.

This is certainly a fair concern: pointing to dramatic incidents involving bad or brutal policing runs the risk of committing the fallacy of anecdotal evidence or the fallacy of misleading vividness (a fallacy in which a very small number of particularly dramatic events are taken to outweigh a significant amount of statistical evidence). As with the war on police, the alleged war by the police must be subject to objective statistical analysis. That said, the sort of criticism of police misconduct and brutality that appears in the media does not seem to constitute a war—at least under a rational definition of “war.”

Since there is no war on cops, Fox and other folks should not be making this claim. One reason is that telling untruths is, at the very least, morally problematic—especially for people who claim to be journalists. Another, and more important reason, is that such a campaign can have serious negative consequences.

The first is that such a campaign can convince police that they are targets in a war. In addition to causing additional stress in what is already a stressful (and often thankless) job, the belief that they are in a war can impact how police officers perceive situations and how they react. If, for example, an officer believes that she is likely to be targeted for violence, she will operate on the defensive and consider fellow citizens as threats. This would, presumably, increase the chances that she will react with force during interactions with citizens.

A second consequence is that if citizens believe that there is a war on cops, they will be more likely to accept violence on the part of officers (who will be more likely to perceived as acting defensively) and more likely to regard those harmed by the police as deserving their fate. Citizens might be more inclined to support the continued militarization of police, which will lead to harms of its own. This view can also lead citizens to be unfairly critical of groups that are critical of brutal and poor policing, such as Black Lives Matter. People might also become more afraid of police because they think that they police are acting within a war and thus more likely to respond with force.

A third consequence is that if politicians accept there is a war on cops, they will support laws and policies that are based on a false premise. These are likely to have undesirable and unintended consequences.

While some might be tempted to say that Fox and others should be prevented from engaging in such campaigns that seem to be based on intentional deceptions aimed at ideological ends, I do not agree with this. Since I accept freedom of expression, I do accept that Fox and folks should have the freedom to engage in such activities—even when such expression is harmful.

My main justification for my view is based on concerns about the consequences. If a law or general policy were adopted to forbid such expression (as opposed to actual slander or defamation), then this would open the door to ideological censorship. That is, Fox might be silenced today, but I might be silenced tomorrow. As such, while Fox and folks should not push such untrue claims onto the public, they should not be prevented from doing so.


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Obligations to Refugees

Posted in Ethics, Law, Politics by Michael LaBossiere on September 30, 2015

As this is being written, large numbers of people are fleeing conflict and economic woes in the Middle East, Africa and other parts of the world. As with past exoduses, some greet the refugees with kindness, some with indifference and some with hate. As a philosopher, my main concern is with the ethics regarding obligations to refugees.

One way to approach the matter of moral obligations to refugees is to apply the golden rule—to do unto others as we would have them do unto us. While most of those who read this are living lives of relatively good fortune, it is easy enough to imagine one’s living falling apart due to war or other disaster—human made or natural. In such circumstances, a person would almost certainly want to be helped. As such, if the golden rule has moral validity, then help should be rendered to the refugees.

One objection to this claim is that people should solve their own problems. In the case of Syria, it could be contended that the Syrians should stay and fight. Or, at the very least, they should not expect others to do their work for them. In the case of those trying to find a better life elsewhere, it could be argued that they should remain in their home countries and build a viable economy. These are, of course, variations on the usual “pull yourself up by your own bootstraps” arguments.

One could also advance a house analogy. Imagine, if you will, that the neighbors down the road are fighting among themselves and wrecking their house. Some of them, tired of the conflict, show up at your door and insist that you put them up and feed them. Though it might be awfully nice to help them, it could also be said that they should put their own house in order. After all, you have managed to keep your family from falling into chaos and they should be able to do the same. There is also the concern that they will wreck your house as well.

This analogy, obviously enough, assumes that the fighting and wrecking began in the house and that no outsider assisted in inflicting the conflict. If, for example, people were just jammed arbitrarily into the houses and then subject to relentless outside interference, then the inhabitants would not bear full responsibility for their woes—so the problems they would need to solve would not be entirely their own. This would seem to provide a foundation for an obligation to help them, at least on the part of those who helped cause the trouble.

If, as another example, the house was invaded from the outside, then that would certainly change matters. In this case, the people fleeing the house would be trying to escape criminals and it would certainly be a wicked thing to slam the door in the face of victims of crime.

As a final example, if the head of the household was subjecting the weaker members of the household to domestic abuse, then it would also change the situation in relevant ways. If beaten and abused people showed up at one’s door, it would be heartless to send them back to be beaten and abused.

Interestingly, the house analogy can also be repurposed into a self-interest argument for taking in refugees. Imagine, if you will, a house of many rooms that were once full of people. Though the house is still inhabited, there are far fewer people and many of them are old and in need of care. There is much that needs to be done in the house, but not enough people to do it all.

Nearby are houses torn with violence and domestic abuse, with people fleeing from them. Many of these people are young and many are skilled in doing what needs to be done in the house of many rooms. As such, rational self-interest provides an excellent reason to open the doors and take in those fleeing. The young immigrants can assist in taking care of the native elderly and the skilled can take up the slack in regards to the jobs. In this case, acting in self-interest would seem to coincide with doing the right thing.

There are, of course, at least two obvious counters to this self-interest analogy. One is the moral problem of taking in people out of self-interest while letting the other houses fall into ruin. This does suggest that a morally superior approach would be to try to bring peace to those houses. However, if peace is unlikely, then taking in those fleeing those houses would seem to be morally acceptable.

Another is a practical concern—that some of those invited in will bring ruin and harm to their new house. While this fear is played up, the danger presented by refugees seems to be rather low—after all, they are refugees and not an invading army. That said, it would be quite reasonable to consider the impact of refugees and to take due care in screening for criminals.


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Campus Sexual Assault & Reasonable Likelihood

Posted in Ethics, Law, Universities & Colleges by Michael LaBossiere on September 16, 2015

While the goal of reducing the number of sexual assaults on campuses is laudable, this is not true of all the proposed methods of achieving this goal. In addition to the practical concerns regarding the effectiveness of methods and their legality, there is also the concern about the morality of these methods.

During a House hearing, Colorado Rep. Jared Polis expressed his support for a “reasonable likelihood” standard in regards to sexual assault. Polis said that “If I was running [a private university], I might say, ‘Well, you know even if there’s a 20 to 30 percent chance that it happened, I would want to remove this individual.”

Most public universities currently follow the preponderance of evidence standard. Under this standard, a student is to be regarded as guilty of sexual assault if the evidence is interpreted as showing there is a greater than 50 percent chance the student committed assault. It is important to note that this standard applies to the proceedings of the university. If the student is involved in a criminal trial, this is handled by the state and the usual legal standard of proof beyond a reasonable doubt applies.

While the preponderance of evidence standard seems rather weak, Polis seems to regard the bar as being too high. He said that “It seems like we ought to provide more of a legal framework then that allows a reasonable likelihood standard or a preponderance of evidence standard.” Obviously enough, the standard would need to specify the degree of confidence in the evidence.

Polis seems to regard a 10-20 (or perhaps as high as 30) percent confidence level as adequate for finding a student guilty of sexual assault: “I mean, if there’s 10 people who have been accused, and under a reasonable likelihood standard maybe one or two did it, it seems better to get rid of all 10 people.” This standard seems problematic in many ways.

Laying aside the ethics of the standard for a moment, Polis seems to be advocating what could be regarded as justice by fallacy. In philosophy, a fallacy is an argument whose premises fail to provide an adequate degree of support for the conclusion. In the case of inductive reasoning, an argument is assessed in terms of how likely it is that the conclusion is true on the assumption that the premises are true. A good inductive argument is known as a strong argument while a poor one is known as a weak argument. As I tell my students, it is unreasonable and irrational to accept the conclusion of a weak inductive argument on the basis of that argument—to do so would be to accept a fallacy as good reasoning. While there is not an exact number for what counts as strong (strength admits of degrees), the minimum would obviously be a 51% chance that the conclusion is true, assuming the evidence is true—this is, in fact, the current standard.

If the standard for a strong argument for the guilt of a student is set at 10-20%, that would mean that students who are almost certainly innocent (the evidence shows that there is a 90% chance of innocence) are as likely to be found guilty as students who are almost certainly guilty (the evidence shows there is a 90% chance of guilt). Even if the matter had no serious consequences, this standard would be absurd from the standpoint of logic. However, there are serious consequences.

A student found guilty of sexual assault by a university is typically punished with expulsion, which will typically have a serious impact on the student’s life. The student can try to transfer to another school, but will be marked with being expelled for sexual assault. Even if the student is able to attend another school, the expulsion will be a considerable setback not only in the student’s academic career, but also in life.

Polis does have a response to this, noting that “We’re not talking depriving them of life and liberty, we’re talking about their transfer to another university, for crying out loud.” This view does create something of a dilemma. If the punishment for sexual assault is, as Polis seems to believe, merely transfer to another university, then there are at least two problems. The first is that such an allegedly mild punishment would seem to have very little deterrent value. The second is that the 10-20% who actually committed sexual assault would simply be transferred to a new campus were they could continue to engage in sexual assault.

But, if the punishment is actually serious (and serious enough to serve as a deterrent), then there is the moral concern about inflicting a serious punishment with such a low threshold of guilt. At the very least justice would require that the accused be shown to be more likely to be guilty than not. As such, both ethics and logic shows that the preponderance of evidence standard is the weakest acceptable standard (and there are arguments against accepting even this standard).


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Kim Davis & Rule of Law

Posted in Ethics, Law, Philosophy, Politics by Michael LaBossiere on September 14, 2015

Those critical of Kim Davis, the county clerk who refused to issue marriage licenses to same-sex couples and was jailed for being in contempt of court, often appeal to a rule of law principle. The main principle used seems to be that individual belief cannot be used to trump the law.

Some of those who support Davis have made the point that some state and local governments are ignoring federal laws in regards to drugs and immigration. To be more specific, it is pointed out that some states have legalized (or decriminalized) marijuana despite the fact that federal law still defines it as a controlled substance. It is also pointed out that some local governments are ignoring federal immigration law and acting on their own—such as issuing identification to illegal immigrants and providing services.

Some of Davis’ supporters even note that some of the same people who insist that Davis follow the law tolerate or even support state and local governments ignoring the federal drug an immigration laws.

One way to respond to the assertions is to claim that Davis’ defenders are committing the red herring fallacy. This is a fallacy in which an irrelevant topic is presented in order to divert attention from the original issue. The basic idea is to “win” an argument by leading attention away from the argument and to another topic. If the issue is whether or not Davis should follow the law, the failure of some states and local governments to enforce federal law is irrelevant. This is like a speeder who has been pulled over and argues that she should not get a ticket because another officer did not ticket someone else for speeding. What some other officer did or did not do to some other speeder is clearly not relevant in this case. As such, this approach would fail to defend Davis.

In regards to the people who say Davis should follow the law, yet are seemingly fine with the federal drug and immigration laws being ignored, to assert that they are wrong about Davis because of what they think about the other laws would be to commit the tu quoque ad hominem. This fallacy is committed when it is concluded that a person’s claim is false because it is inconsistent with something else a person has said. Since fallacies are arguments whose premises fail to logically support the conclusion, this tactic would not logically defend Davis.

Those who wish to defend Davis can, however, make an appeal to consistency and fairness: if it is acceptable for the states and local governments to ignore federal laws without punishment, then it would thus seem acceptable for Kim Davis to also ignore these laws without being punished. Those not interested in defending Davis could also make the point that consistency does require that if Davis is compelled to obey the law regarding same-sex marriage, then the same principle must be applied in regards to the drug and immigration laws. As such, the states and local governments that are not enforcing these laws should be compelled to enforce them and failure to do so should result in legal action against the state officials who fail to do their jobs.

This line of reasoning is certainly plausible, but it can be countered by attempting to show a relevant difference (or differences) between the laws in question. In practice most people do not use this approach—rather, they have the “principle” that the laws they like should be enforced and the laws they oppose should not be enforced. This is, obviously enough, not a legitimate legal or moral principle.  This applies to those who like same-sex marriage (and think the law should be obeyed) and those who dislike it (and think the law should be ignored). It also applies to those who like marijuana (and think the laws should be ignored) and those who dislike it (and think the laws should be obeyed).

In terms of making the relevant difference argument, there are many possible approaches depending on which difference is regarded as relevant. Those who wish to defend Davis might argue that her resistance to the law is based on her religious views and hence her disobedience can be justified on the grounds of religious liberty. Of course, there are those who oppose the immigration laws on religious grounds and even some who oppose the laws against drugs on theological grounds. As such, if the religious liberty argument is used in one case, it can also be applied to the others.

Those who want Davis to follow the law but who oppose the enforcement of certain drug and immigration laws could contend that Davis’ is violating the constitutional rights of citizens and that this is a sufficient difference to justify a difference in enforcement. The challenge is, obviously enough, working out why this difference justifies not enforcing the drug and immigration laws in question.

Another option is to argue that the violation of moral rights suffices to warrant not enforcing a law and protecting rights warrants enforcing a law. The challenge is showing that the rights of the same-sex couples override Davis’ claim to a right to religious liberty and also showing the moral right to use certain drugs and to immigrate even when it is illegal to do so. These things can be done, but go beyond the scope of this essay.

My own view is that consistency requires the enforcement of laws. If the laws are such that they should not be enforced, then they need to be removed from the books. I do, however, recognize the legitimacy of civil disobedience in the face of laws that a person of informed conscience regards as unjust. But, as those who developed the theory of civil disobedience were well aware, there are consequences to such disobedience.


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Davis & Ad Hominems

Posted in Ethics, Law, Philosophy, Politics, Reasoning/Logic, Religion by Michael LaBossiere on September 4, 2015

Kim Davis, a county clerk in Kentucky, has been the focus of national media because of her refusal to issue marriage licenses to same-sex couples. As this is being written, Davis has been sent to jail for disobeying a court order.

The Scarlet Letter (1926 film)

The Scarlet Letter (1926 film) (Photo credit: Wikipedia)

As should be expected, opponents of same-sex marriage have tended to focus on the claim that Davis’ religious liberty is being violated. As should also be expected, her critics sought and found evidence of what seems to be her hypocrisy: Davis has been divorced three times and is on her fourth marriage. Some bloggers, eager to attack her, have claimed that she is guilty of adultery. These attacks can be relevant to certain issues, but they are also irrelevant in important ways. It is certainly worth sorting between the relevant and the irrelevant.

If the issue at hand is whether or not Davis is consistent in her professed religious values, then her actions are clearly relevant. After all, if a person claims to have a set of values and acts in ways that violate those values, then this provides legitimate grounds for accusations of hypocrisy and even of claims that the person does not really hold to that belief set. That said, there can be many reasons why a person acts in violation of her professed values. One obvious reason is moral weakness—most people, myself included, do act in violation of their principle due to the many flaws and frailties that we all possess. Since none of us is without sin, we should not be hasty in judging the perceived failings of others.  However, it is reasonable to consider a person’s actions when assessing whether or not she is acting in a manner consistent with her professed values.

If Davis is, in fact, operating on the principle that marriage licenses should not be issued to people who have violated the rules of God (presumably as presented in the bible), then she would have to accept that she should not have been issued a marriage license (after all, there is a wealth of scriptural condemnation of adultery and divorce). If she accepts that she should have been issued her license despite her violations of religious rules, then consistency would seem to require that the same treatment be afforded to everyone—including same-sex couples. After all, adultery makes God’s top ten list while homosexuality is only mentioned in a single line (and one that also marks shellfish as an abomination). So, if adulterers can get licenses, it would be rather difficult to justify denying same-sex couples licenses on the grounds of a Christian faith.

If the issue at hand is whether or not Davis is right in her professed view and her refusal to grant licenses to same-sex couples, then references to her divorce and alleged adultery are logically irrelevant. If a person claims that Davis is wrong in her view or acted wrongly in denying licenses because she has been divorced or has (allegedly) committed adultery, then this would be a mere personal attack ad hominem. A personal attack is committed when a person substitutes abusive remarks for evidence when attacking another person’s claim or claims. This line of “reasoning” is fallacious because the attack is directed at the person making the claim and not the claim itself. The truth value of a claim is independent of the person making the claim. After all, no matter how repugnant an individual might be, he or she can still make true claims.

If a critic of Davis asserts that her claim about same-sex marriage is in error because of her own alleged hypocrisy, then the critic is engaged in an ad hominem tu quoque.  This fallacy is committed when it is concluded that a person’s claim is false because 1) it is inconsistent with something else a person has said or 2) what a person says is inconsistent with her actions. The fact that a person makes inconsistent claims does not make any particular claim she makes false (although of any pair of inconsistent claims only one can be true—but both can be false). Also, the fact that a person’s claims are not consistent with her actions might indicate that the person is a hypocrite but this does not prove her claims are false. As such, Davis’ behavior has no bearing on the truth of her claims or the rightness of her decision to deny marriage licenses to same-sex couples.

Dan Savage and others have also made the claim that Davis is motivated by her desire to profit from the fame she is garnering from her actions. Savage asserts that “But no one is stating the obvious: this isn’t about Kim Davis standing up for her supposed principles—proof of that in a moment—it’s about Kim Davis cashing in.” Given, as Savage notes, the monetary windfall received by the pizza parlor owners who refused to cate a same-sex wedding, this has some plausibility.

If the issue at hand is Davis’ sincerity and the morality of her motivations, then whether or not she is motivated by hopes of profit or sincere belief does matter. If she is opposing same-sex marriage based on her informed conscience or, at the least, on a sincerely held principle, then that is a rather different matter than being motivated by a desire for fame and profit. A person motivated by principle to take a moral stand is at least attempting to act rightly—whether or not her principle is actually good or not. Claiming to be acting from principle while being motivated by fame and fortune would be to engage in deceit.

However, if the issue is whether or not Davis is right about her claim regarding same-sex marriage, then her motivations are not relevant. To think otherwise would be to fall victim to yet another ad hominem, the circumstantial ad hominem. This is a fallacy in which one attempts to attack a claim by asserting that the person making the claim is making it simply out of self-interest. In some cases, this fallacy involves substituting an attack on a person’s circumstances (such as the person’s religion, political affiliation, ethnic background, etc.). This ad hominem is a fallacy because a person’s interests and circumstances have no bearing on the truth or falsity of the claim being made. While a person’s interests will provide them with motives to support certain claims, the claims stand or fall on their own. It is also the case that a person’s circumstances (religion, political affiliation, etc.) do not affect the truth or falsity of the claim. This is made quite clear by the following example: “Bill claims that 1+1 =2. But he is a Christian, so his claim is false.” Or, if someone claimed that Dan Savage was wrong simply because of his beliefs.

Thus, Davis’ behavior, beliefs, and motivations are relevant to certain issues. However, they are not relevant to the truth (or falsity) of her claims regarding same-sex marriage.


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Same-Sex Marriage, Religious Liberty & Obedience

Posted in Ethics, Law, Philosophy, Politics, Religion by Michael LaBossiere on September 2, 2015

Kim Davis, a country clerk in Kentucky, has refused to issue marriage licenses to same-sex couples on the grounds that doing so violates her religious beliefs. When questioned about this, she has replied that she is acting “under God’s authority.” Some of those supporting her, and other clerks who have also decided to not issue marriage licenses, are contending that it would violate her religious freedom to be compelled to follow the law and do her job. This situation raises numerous important issues about obedience and liberty.

When taking a position on situations like this, people generally do not consider the matter in terms of general principles regarding such things as religious liberty and obedience to the state. Rather, the focus tends to be on whether one agrees or disagrees with the very specific action. In the Davis case, it is not surprising that people who oppose same-sex marriage tend to favor her decision to disobey the law and claim that she has a moral right to do so. It is also not surprising that those who favor same-sex marriage tend to think that she should obey the law and that it is morally wrong for her to disobey the law of the land.

The problem with this sort of approach is that it is unprincipled—unless being in favor of disobedience one likes and opposing disobedience one dislikes is a reasonable moral position. Moral consistency requires the application of a general principle that applies to all relevantly similar cases, rather than simply going with how one feels about a particular issue.

In regards to the situation involving Davis, many of her defenders have tried to present this as a religious liberty issue: Davis is being wronged by the law because it compels her to act in violation of her religious beliefs. Her right to this liberty presumably outweighs the rights of the same-sex couples who expect her to follow the law and do her job.

Having been influenced by Henry David Thoreau’s arguments for civil disobedience and by Thomas Aquinas, I agree that an individual should follow her informed conscience over the dictates of the state. The individual must, of course, expect to face the consequences of this civil disobedience and these consequences might include fines, being fired or even time in prison. Like Thoreau, I believe that a government official who finds the law too onerous should endeavor to change it and, failing that, should resign rather than obey a law she regards as unjust. As such, my general principle is that a person has the moral right to refuse to follow a law that her informed conscience regards as immoral.

In the case of Davis, if she is acting in accord with her informed conscience, then she has the moral right to refuse to follow the same-sex marriage law. However, having failed to change the law, she needs to either agree to follow this law or resign from her position.

That said, I am well aware that a person’s informed conscience can be in error—that is, what she thinks is morally right is not actually right. It might even be morally wrong. Because of this, I also accept the view that while a person should follow his informed conscience, the actions that follow from this might be morally wrong. If they are wrong, the person has obviously acted wrongly—but, to the degree that she followed her informed conscience, she can be justly excused in regards to her motivations. But, the actions (and perhaps the consequences) would remain wrong.

Since I favor liberty in regards to marriage between consenting adults (and have written numerous essays and a book on this subject), I believe that Davis’ view about same-sex marriage is in error. Though I think she is wrong, if she is acting in accord with her informed conscience and due consideration of the moral issue, then I respect her moral courage in sticking to her ethics.

While subject to the usual range of inconsistencies, I do endeavor to apply my moral principles consistently. As such, I apply these principles to all relevantly similar cases. As such, whenever there is a conflict between an individual’s professed moral views and the law she is supposed to enforce, I ask two questions. The first is “is the person acting in accord with her informed conscience?” The second is “is the person right about the ethics of the matter?” This is rather different from approaching the matter by asking “do I agree with the person on this specific issue?”

As noted above, some of the defenders of Davis are casting this as a religious liberty issue. In this case, the implied general principle would be that when an official’s religious views conflict with a law, then the person has the right to refuse to follow the law. After all, if religious liberty is invoked as a justification here, then it should work equally well in all relevantly similar cases. As such, if Davis should be allowed to ignore the law because of her religious belief, then others must be allowed the same liberty.

As might be suspected, folks that oppose same-sex marriage on religious would probably agree with this principle—at least in cases that match their opinions. However, it seems likely that many folks would not be in favor of consistently applying this principle. For example, consider the matter of immigration.

The bible is reasonable clear about how foreigners should be treated. Leviticus, which is most commonly cited to condemn same-sex marriage, commands that “The foreigner residing among you must be treated as your native-born. Love them as yourself, for you were foreigners in Egypt. I am the LORD your God.” Exodus says “”Do not mistreat or oppress a foreigner, for you were foreigners in Egypt” while Deuteronomy adds to this that “And you are to love those who are foreigners, for you yourselves were foreigners in Egypt.”

Given this biblical support for loving and treating foreigners well, a border patrol agent, INS official, or immigration judge could find easy religious support for refusing to enforce immigration laws violating their conception of love and good treatment. For example, a border patrol agent could, on religious grounds, refuse to prevent people from crossing the border. As another example, a judge could refuse to send people back to another country on the grounds that the bible says about treating the foreigner as a native born. I suspect that if officials started invoking religious freedom in order to break immigration laws, there would be little support for their religious liberty from the folks who support religious liberty in regards to breaking the law governing same-sex marriage.

To use another example, consider what the bible says about usury. Exodus says “If you lend money to any of my people with you who is poor, you shall not be like a moneylender to him, and you shall not exact interest from him.”  Ezekiel even classified charging interest as an abomination: “Lends at interest, and takes profit; shall he then live? He shall not live. He has done all these abominations; he shall surely die; his blood shall be upon himself.” If religious liberty allows an official to break/ignore laws, then judges and law enforcement personnel who accept these parts of the bible would be allowed to, for example, refuse to arrest or sentence people for failing to pay interest on loans.

This can be generalized to all relevantly similar situations involving law-breaking/ignoring officials who do so by appealing to religious liberty. As might be imagined, accepting a principle that religious liberty grants an official an exemption to the law would warrant the breaking or ignoring of a vast multitude of laws. Given this consequence, it would seem that accepting the general principle of allowing religious liberty to trump the law would be unwise. It is, however, wise to think beyond one’s feeling about one specific case to consider the implications of accepting a general principle.


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Is Pro-Life a Cover for Misogyny? II: Sorting Principles

Posted in Ethics, Law, Philosophy, Politics by Michael LaBossiere on August 19, 2015

In my previous essay I laid the groundwork for the discussion that is to follow regarding the pro-life moral position and misogyny. As argued in that essay, a person can be pro-life and not a misogynist. It was also shown that attacking a person’s circumstances or consistency in regards to their professed belief in a pro-life moral position does not disprove that position. It was, however, contended that consistency does matter when sorting out whether a person really does hold to a pro-life position or is, in fact, using that as cover for misogyny.

While there are open misogynists, open misogynists generally do not fare well in American elections. As such, a clever (or cleverly managed) misogynist will endeavor to conceal his misogyny behind more laudable moral positions, such as being pro-life. This, obviously, sells better than being anti-women.

Throughout 2015 Americans will be (in theory) deciding the candidates for President and then in 2016 they will be voting. Republicans in general and the current crop of presidential candidates profess that they are pro-life, but there is still the question of whether they truly hold to this principle. Republicans are also regularly accused of being misogynists and part of this involves asserting that their pro-life stance is actually an anti-women stance. One way to sort this out is to consider whether or not a person acts consistently with a pro-life position. Since people are inconsistent though ignorance and moral weakness, this will not conclusive reveal the truth of the matter—but it is perhaps the best method of empirical investigation.

On the face of it, a pro-life position is the view that it is morally wrong to kill. If a person held to this principle consistently, then she would oppose all forms of killing—this would include hunting, killing animals for food, capital punishment, and killing in war. There are people who do hold to this view and are consistent. This view was taken very seriously by Christian thinkers such as St. Augustine and St. Aquinas. After all, as I say to my Ethics students, it would be a hell of a thing to go to hell for a hamburger.

The pro-life view that killing is wrong would seem to require a great deal of a person. In addition to being against just straight-up killing in war, abortion and capital punishment, it would also seem to require being against things that kill people, such as poverty, pollution and disease. As such, a pro-life person would seem to be required to favor medical and social aid to fight things like disease and poverty that kill people.

As is obvious, there are many pro-life people who oppose such things. They even oppose such things as providing food support for mothers and infants who are mired in poverty. One might thus suspect that they are not so much pro-life as anti-woman. Of course, a person could be pro-life and still be opposed to society rendering aid to people to prevent death.

One option is to be against killing, but be fine with letting people die. While philosophers do make this moral distinction, it seems a bit problematic for a person to claim that he opposes abortion because killing fetuses is wrong, but not providing aid and support to teenage mothers, the sick, and the starving is acceptable because one is just letting them die rather than killing them. Given this view, a pro-life person of this sort would be okay with a woman just abandoning her baby—she would simply be letting the baby die rather than killing her.

People who are pro-life also often are morally fine with killing and eating animals. The ethics of killing animals (and plants) was also addressed explicitly by Augustine and Aquinas. One way to be pro-life but hold that killing animals is acceptable is to contend that humans have a special moral status that other living things lack. The usual justification is that we are better than them, so we can kill (and eat) them. This view was held by St. Augustine and St. Anselm who were fine with killing animals (and plants).

However, embracing the superiority principle does provide an opening that can be used to justify abortion—one merely needs to argue that the fetus has a lower moral status than the woman and this would seem to warrant abortion.

Many people who profess a pro-life view also favor capital punishment and war. In fact, it is common to hear a politician smoothly switch from speaking of the sanctity of life to the need to kill terrorists and criminals. One way to be pro-life and accept capital punishment and war is to argue that it is the killing of innocents that is wrong. Killing the non-innocent is fine.

The obvious problem is that capital punishment sometimes kills the innocent and war always involves the death of innocents. If these killings are warranted in terms of interests, self-defense, or on utilitarian grounds, then the door is open for the same being applied to abortion. After all, if innocent adults and children can be killed for national security, economic interests or to protect us from terrorists, then fetuses can also be killed for the interests of the woman or on utilitarian grounds. Also, animals and plants are clearly innocent beings—but they can be addressed by the superiority argument. Someone who is fine with killing people for the sake of interests or on utilitarian grounds, yet professes to be devoutly pro-life might justifiably be suspected of being more anti-women than pro-life.

A pro-life position can also be interpreted as the moral principle that abortions should be prevented. This is, obviously, better described as anti-abortion rather than pro-life. One obvious way to prevent abortions is to prevent women from having them. This need not be a misogynistic view—one would need to consider why the person holds to this view and this can be explored by considering the person’s other expressed views on related matters.

If a person is anti-abortion, then she should presumably support ways to prevent abortion other than merely stopping women from having them. Two rather effective ways to reduce the number of abortions (and thus prevent some) are effective sex education and access to birth control. These significantly reduce the number of unwanted pregnancies and thus reduce the number of abortions. Not surprisingly, abstinence focused “sex education” fails dismally.

To use the obvious analogy, being anti-abortion is rather like being anti-traffic fatality. Telling people to not drive will not really help. Teaching people how to drive safely and ensuring that protection is readily available does work quite well.

Because of this, if a person professes to be pro-life/anti-abortion, yet is opposed to effective sex education and birth control, then it is reasonable to suspect misogyny. This is, of course, not conclusive: the person might have no dislike of women and sincerely believe that ignorance about sex is best, that abstinence works, and that birth control is evil. The person would not be a misogynist—just in error.

In closing, it must be reiterated that just because a person is inconsistent in regards to his professed pro-life moral principles, it does not follow that he must be a misogynist. After all, people are often inconsistent because of ignorance, a failure to consider implications, and moral weakness. However, if a person professes a pro-life position, yet is consistently inconsistent in regards to his actions and other professed views, then it would not be unreasonable to consider that there might be some misogyny in play.


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