Category Archives: Uncategorized

Freedom of the Will

I was reading this blog last night, and was reminded of one of the issues in philosophy that often bothers me: the implicit presumption that multiple schools of thought cannot be correct simultaneously. 

Often times – like with the previous discussions on this blog about positivism versus interpretive law – the middle road solution can provide valuable insight; and in fact, I pride myself on my ability to sit astride the apex of the bell-curve.

Bell_Curve

What do I mean by this?

The aforementioned blog entry that I read last night discussed the nature of free will. Among the many schools of thought concerning free will, determinism is one that has gathered perhaps the biggest head of steam over time. Determinism, perhaps somewhat fatalistic in nature, declares that all choices are the result of causation. As such, the decisions one makes (and the actions one takes) are merely the result of all events before. As such, any singular decision can be linked back through an infinite chain of causation. Therefore, free will is a myth. 

Further deterministic arguments, such as those presented by the likes of Sam Harris, argue that in order to truly have free will, we must:

  1. Have control of, and be aware of, our own thoughts and actions;
  2. In looking back at a decision, we must have been able to act differently than we had.

Naturally, it doesn’t take much for the determined determinist to cast aside both of these premises as impossible. 

…and maybe they’re right.

To an extent, that is. As I have discussed in the past, there are many psychological theories that abound, which discuss the human psyche, personality, and social makeup as resulting from the aggregation of life experiences, up bringing, socialization at a young age, and many other things:

  • Wilhelm Reich, for example, discussed the notion that the acceptance of authority stems from the desire to find a father-like figure in the other (so very, very Freudian).
  • Erich Fromm stated that human relationships, attitudes, and ideologies are the result of the human awareness – and fear – of mortality; he termed this the Escape from Freedom.
  • Milton Rokeach claimed (in essence) that your attitudes, developed over time, steer your interests, actions, thoughts, and ideologies. 

However, while it maybe true that we are the product of the aggregation of our lives and experiences, it does not logically follow that our decisions are solely that as well. While we may not have the ability to control the inclinations of our minds, we do have the ability to control the actions of our bodies. Indeterminists would argue in favor of an unfettered free will. While I will not get in to the particulars here, they’re not very convincing. 

That being said, there is a sub-sect of Determinism**, called Compatibilism, that seems to satisfy my thirst for the middle-ground, and seems to demonstrate how two schools of thought can work together in accord. Compatibilism attempts to reconcile the hard-deterministic view of causal chains with the notion that free will is not exclusive of causality. To my reading, Compatibilism accepts causal chains as true, but rejects that the presence of causality necessarily precludes the possibility of free will. The Compatibilist would argue that where one is able to act, free of encumbrance, one acts of their own free will. By encumbrance, the Compatibilist means coercive force. As such, when one is not coerced by an external entity – an “other” – one has willingly chose to act in such a way, these actions being the result of experience aggregation notwithstanding.

(**Note that there are NUMEROUS schools of thought on this issue, these are just the two I happen to be talking about today)

Either that, or these guys were just talking about the whale.

Free_willy

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A-Theory and Einstein

Forgive me blogosphere, for I have sinned. It has been roughly four months since my last rambling entry into the interweb æther. 

After having finished up with that awful philosophy of law class that could have been far and away more interesting than it was, I began to neglect this blog entirely. But recently, I have been doing a lot of reading in philosophy in general – as well as some more reading into philosophy of law to make up for what I didn’t learn in that class – and found that I’ve been sort of hankering to get in here and ramble on for a few paragraphs about stuff that no one really wants to read about.

But you want to read it, don’t you? And you’ve come this far, so why stop now? 

Recently, I read up on a facet of philosophical thought known as “A-Theory.” Essentially, this so-called theory pertains to the nature linear time, vis-a-vis “past, present, & future.” There are several differing schools of thought within this area, which range from the existence of events and objects in time to all manner of other time-related hoopla, but they all tend towards assuming that relations in linear time exist as an indicator of the subjects placement within time. Further, A-Theory postulates that nothing can remain in any one state of time forever; therefore an event will be in the future until it happens, in the present as it happens, and in the past once it has happened. And yes, A-Theory postulates that nothing can be in the past forever. I’m not really sure how that makes any sense. But ok.

The truly important part of A-Theory, for the purpose of this discussion at least, is the idea that the chronological phraseology represents, implicitly, the chronological viewpoint of the observer (speaker, thinker, what ever you want to call them).

So, one of the most popular arguments against A-Theory takes the form of Einstein’s Theory of Relativity. Without wading too far into the weeds on this (and therefore getting myself into a conversation on a topic I am woefully unprepared to talk about), the salient parts of Einstein’s theory with which we are concerned are as follows:

  1. The speed of light is invariant, and is the same for all observers;
  2. The speed of light is the same for all inertial frames;
  3. Time and space must be considered together, and therefore;
  4. A temporal (of or relating to time) observance, such as simultaneity, is dependent upon the spacial relationship of the event and the observer.

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You can go here and here for a much more full, in depth, and scientific view on this argument. If you care, it’s worth the time reading it. 

STILL WITH ME?

So this use of Einstein’s Theory of Relativity as an argument against A-Theory basically boils down to a very simple premise: the observance of a set of events, and the temporal relationship of that set of events to the observer, is wholly dependent upon the spacial relationships between the two. Therefore, any two observers observing the same set of events from different inertial frames will observe the event differently in relation to time. Therefore, since the precepts of A-Theory are relative, they cannot be universal, and therefore A-Theory is false. If I take the above premises and tack on some more, we can express this as a very simple logical argument:

  1. The speed of light is invariant, and is the same for all observers;
  2. The speed of light is the same for all inertial frames;
  3. Time and space must be considered together;
  4. A temporal (of or relating to time) observance, such as simultaneity, is dependent upon the spacial relationship of the event and the observer;
  5. If 4 is true, then temporal relationships must be relative and not universal, therefore;
  6. If temporal relationship cannot be universal, A-Theory cannot be accurate.

This doesn’t sit right with me.

Nope. I’m not about to try and disprove Einstein… I’m not this kid. Nor am I that ignorant to how much I am ignorant of. I just don’t think Einstein has anything to do with this.

If we think about what I said earlier, about chronological relationships representing the observer’s place in time, I think we arrive at what is really important about A-Theory: it is simply a mechanism for further defining the concept of time. While time is, of itself, a beast of our own creation – there is no reason that there cannot be universality in the conceptualization of it. Physics is not needed for a human to express his or her relationship to time. Further, the aforementioned arguments against A-Theory are based on the idea that temporal relationships are relative. But that’s all time is anyway. To paraphrase “Watchmen,” a clock’s only point of reference is another clock. If, therefore, we can agree that time is of itself merely referential (although spoken of in universal terms), then surely the language we use to reference time can, while referential, be spoken of in universal terms.

If I’ve missed any considerations, or have misinterpreted this subject matter in anyway (or if you just downright hate my opinion), let me know!

Is Dignity a Constitutional Principle?

To begin with, it is difficult to imagine an interpretation of equal protection that does not include an appeal to human dignity at some level.

The New York Times OpEd by Bruce Ackerman, titled “Dignity is a Constitutional Principle,” explored the Roberts Court’s opinion in U.S. v. Windsor, which stripped DOMA of its restrictions for same-sex couples. Justice Anthony Kennedy’s opinion for the majority stressed that the Defense of Marriage Act served to single out a subset of individuals and impose a restriction upon them that would have little to no effect on those not within the specific subset. This follows a short line of precedent that Justice Kennedy has established over time which has acted to, to some extent, bring about equal protection for same sex couples. Further, the reasoning behind Justice Kennedy’s opinion seems, at least to my mind, to echo his opinion in Lawrence v. Texas, wherein he claimed that Texas’ anti-sodomy laws were rooted solely in animus – and animus is no basis for law.

To clarify: both of these cases were concerned with Due Process; Windsor under the 5th Amendment, and Lawrence under the 14th. The substantive due process doctrines that emanate from the 5th Amendment’s Due Process Clause were developed by the Supreme Court over time (and I say developed, because they just plain made it up), and are understood, by the Court, to intrinsically include an equal protection component.

Ackerman argues that the Court should have spilled some ink including the Warren Court’s decision in Brown within Windsor’s authorities and obiter dicta, but I’m not sure I see the logic in that opinion. Brown was certainly concerned with equal protection and human dignity – of this, there can be no question. However, the facts of Brown are not sufficiently similar to those of Windsor to warrant going out of one’s way to include it within the scope of Windsor. My primary reason for saying this has to do with the relevant Constitutional doctrine: Brown was concerned with a state statute and was accordingly decided under the Fourteenth Amendment, which is typically used as a standard for state actions; whereas Windsor, concerned with a federal statute, was decided under the 5th Amendment – understood to apply to the Federal government only.

While it is a logical presumption to say that the dignitarian principles of Brown would have been  well suited to serve as dicta in the Windsor opinion, the fact that they are concerned with differing Constitutional passages means, to my mind, that one is not controlling precedent upon the other.

James on Nussbaum on McClean on Taney on Dred Scott… Whew…

James Arrabito

In discussing the McClean dissent to the majority opinion in Dred Scott v. Sanford in relation to the philosophical precepts illustrated by Martha Nussbaum in her book, Hiding from Humanity, my gaze falls naturally upon one particular statement made during the oral arguments before the Supreme Court: “it was said that a colored citizen would not be an agreeable member of society. This is more a matter of taste than of law.” See: Dred Scott v. Sanford 60 U.S. 393 (1857) at 533

This is a significant statement in terms of Nussbaum’s writings, as it provides further example of the unreliable nature of the use of emotions, particularly disgust, in the law. As can be observed by browsing through the transcripts of the oral arguments, the advocate for John Sanford appealed to popular denigration of non-whites as rationale for their exclusion, whether free or enslaved, as American citizens. This denigration can, according to Nussbaum, be classified as making the non-white an object of disgust. As is discussed, the aiming of disgust at humans has the often intentional effect of lowering and debasing those individuals; the effect, indeed, of classifying them within a hierarchy of social strata. This is exemplified through a discussion of the Latin word “fastidium,” which simultaneously implies disgust and hauteur. Naturally, disgust is not a natural attribute in human cognition, and is rather developed over time through socialization with parents and, more importantly according to Herbert Marcuse, with peers.

If we accept the aforementioned as the genesis of disgust’s development in human social interaction and attitudes, the unreliable nature of disgust as a basis of law can become apparent. As disgust is an attitude, or collection of attitudes, and attitudes are formed by a synthesis of one’s aggregate experiential perceptions and the socialization with parents and peers, then naturally the logical conclusion is that the objects of disgust will differ, if only slightly, from person to person. Nussbaum would seem to agree with this when she says that there are not universal objects of disgust; although, to be fair, she hedges her bet by saying that there are those objects of disgust that have the effect of being universalized – a semantic trick, in my opinion.

The earlier quoted statement from the McClean dissent seems, to me, to be an affirmation before the fact of Nussbaum’s consideration of this issue. The logical implication of his statement that the exclusion of non-whites is a matter of taste as opposed to a matter of law is a direct shot at the use of popular attitudes that denigrate an aggregate of individuals based merely upon the notion that one is better than them, and not, as is argued, a matter of precedent or Constitutional cannon. Much like the appeal to poplar disgust in the passed of Colorado’s anti-homosexual laws, McClean argues that these arguments are no more than a call to society’s base attitudes of social hierarchy and false sense of purity.

 

 

Detritus, Decay, Disgust, HOORAY

As if the discussions about slavery and slave codes were not uplifting enough, we’re going to talk about the nature of human disgust today!

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Martha “Nussy” Nussbaum seems to except the notion that disgust is a learned trait in humanity, kindled and stoked by a child’s socialization with its parents and later on with its peers. This is a logical conclusion to reach, as disgust is in itself a social more and not an absolute. Nussbaum argues that there are certain objects of disgust that are so common between all societies that, while not technically absolute, they have the effect of being absolute.

Ok. I’ll bite.

I think at that point Nussbaum was just playing the semantics game, but she’s got the Harvard PhD and I do not even have a BA yet, so perhaps I’ll just defer to her on this point…

ANYWHO… The thing I found particularly interesting was how disgust is formed and aimed. The theory with which Nussbaum seems, thus far into the book, to be most comfortable working with – and seems to be accepting, with some nuance – is a two-part notion that disgust is a mechanism that helps humanity to ignore the fact of its animal origins – and that we are animals like any other (well – we walk upright and have thumbs, which may have helped us see predators over tall grass and wield big sticks – so maybe we’re not exactly like the rest). This, of course, jives very well with the ‘Frommian’ theory that I have discussed several times in the past on this blog. The second part of the theory is that it is aimed against those objects that are reminders of the body’s propensity for decay. Thus, according to this theory, we find shit, piss, blood, fungus, mucus, and general gooey gushiness gross because it reminds us in the end that we are made of those things, and becoming those things.

Naturally, the argument is not  being made that we make  these connections willfully, or purposefully; nor is the argument being make that we are even aware of the connection being made by our minds. These are subconscious processes.

Now, the argument is mentioned that there are certain reminders of our animal bodies that impress, rather than disgust; durability, strength, agility, speed, flexibility… Cockroaches are very durable, strong, and fast – yet they are objects of disgust and scorn. Many athletes are durable, strong, and fast – and we love them (unless their name is Alex Rodriguez). This is accounted for in the argument that we associate disgust namely with those animals, or animal attributes, that have the properties of those reminders of decay mentioned earlier. We associate – with good reason – cockroaches with decay, and thus they are objects of scorn. And thus, the two seemingly divergent theories mould together.

On Eudaimonic Judgements

This one might be a little bit disorganized, as I am writing this from stream of consciousness; I’m thinking this out as I write it.

 

If my thoughts  on Nussbaum’s conceptions of emotions and compassion are at all coherent and accurate, then logically they defeat, at least to some extent, her assertions that compassion involves eudaimonic judgements. This Aristotlelian concept of the pinnacle of human good – the ultimate in human experience and ethics – which has been ably adopted by Nussbaum  assumes that compassion must be based upon the wish to see the other experience eudaimonia. This, Nussbaum contends, is the result of the other being of personal importance  to the self. To paraphrase Nussbaum, we do not show true compassion for those others from which we are significantly removed. The compassion we show for them is relevant only as far as we keep the distant other in our minds.

This is illogical to me, however. For, emotions in general are only extant for as long as they are in they are relevant to the mind. Further, Nussbaum argues that “the suffering of people” is the object of the emotion, however, as I stated yesterday, I do not believe that to be entirely accurate.

On Eudaimonic Judgements

This one might be a little bit disorganized, as I am writing this from stream of consciousness; I’m thinking this out as I write it.

 

If my thoughts  on Nussbaum’s conceptions of emotions and compassion are at all coherent and accurate, then logically they defeat, at least to some extent, her assertions that compassion involves eudaimonic judgements. This Aristotlelian concept of the pinnacle of human good – the ultimate in human experience and ethics – which has been ably adopted by Nussbaum  assumes that compassion must be based upon the wish to see the other experience eudaimonia. This, Nussbaum contends, is the result of the other being of personal importance  to the self. To paraphrase Nussbaum, we do not show true compassion for those others from which we are significantly removed. The compassion we show for them is relevant only as far as we keep the distant other in our minds.

This is illogical to me, however. For, emotions in general are only extant for as long as they are in they are relevant to the mind. Further, Nussbaum argues that “the suffering of people” is the object of the emotion, however, as I stated yesterday, I do not believe that to be entirely accurate.