Wednesday, April 28, 2010

"Reasonable" and the Law: Some Thoughts on Arizona's Immigration Bill

Any practicing lawyer (I make this qualification for a reason, to be addressed) knows well that the word "reasonable" is often used in the law, as a standard.  There's that "reasonable person" one always hears of, for example, in civil negligence cases.  "Reasonably acceptable" is a phrase one encounters in contracts.  Variants of "reasonable" appear often as well.  In contracts, consent to a particular act frequently is not to be "unreasonably withheld."  And, of course, there is constitutional prohibition of "unreasonable search and seizure."

Lawyers and courts have been dealing with "reasonable" and, for that matter, "unreasonable" as standards or requirements for quite some time.  There is a huge amount of case law dealing with what is or is not "reasonable" in given circumstances.  Sometimes, there is statutory language specifiying what is not reasonable which can be referred to by those enforcing and interpreting law.

I've been a practicing lawyer for what I must reluctantly admit to be a long time.  This makes it rather hard for me to understand what I believe to be the very unreasonable response of some to Arizona's recently adopted immigration law.  Some of the declaiming going on strikes me as almost hysterical.  Even my favorite editorial catoonist, Pat Oliphant, is indulging in comparison with the Nazis.

I think that all must admit that there is such a thing as illegal immigration.  There's even a federal law, mirable dictu. Also, there seems to be considerable evidence that there are a large number of illegal immigrants in our glorious republic.

The concern of the bill's opponents appears to arise from the fact that the law allows persons to be questioned or investigated if there is a "reasonable suspicion" that the law is being violated.  In fact, "reasonable suspicion" is already a basis on which a person may be stopped and questioned under the law.  Law enforcement may, under well established law, do all sorts of additional things once "probable cause" exists, and even "probable cause" that a law is being violated is something considerably different from absolute certainty that a law is being violated.  One has to wonder why an inference is being made that "reasonable suspicion" will, in practice, mean something dramatically different from what it already means.  As the law apparently expressly states that a person is not to be stopped, questioned or investigated based solely on his race or appearance (which, of course, tells us something about what is not "reasonable suspicion") one is even more inclined to wonder why such an inference is apparently being made.  If there is no such inference being made, one has to wonder just what the concern may be.

Concerns regarding the misuse of law by law enforcement are, to me, perfectly understandable and significant, and all should be done to prevent this kind of misconduct.  However, the exercise of judgment always takes place whenever a law is being enforced.  Sometimes, it's not properly exercised.  Sometimes, laws are misused.  Sometimes, law enforcement acts improperly.  But, there doesn't seem to be any credible reason, at this time, to think this particular law difers from others by allowing or encouraging the unreasonable exercise of judgment, misuse or misconduct.

So, miserable cynic that I am, I tend to think that the opponents of this Arizona law are not primarily motivated by any legitimate legal concerns.  If that's the case, I think they would be more honest--and honorable--if they simply took the position that immigration should not be illegal, or that the law which already exists and has existed for some time making immigration illegal should be significantly altered.

Many of our elected officials are lawyers.  I tend to think lawyers make bad politicians.  We're not good at representing, at the same time, the interests of large numbers of people.  Our training is in the representation of particular individuals or entities, as to particular disputes.  Generally, were not supposed to represent more than one party in a dispute, because of the obvious potential for conflict of interest.  That's a topic for a different day.

Many of our elected officials are lawyers who have not practiced law for any significant period of time, however.  They've gotten their law degree, but have done other things.  They've taught, perhaps, or became involved in politics just after got their degree, or worked in some non-legal capacity.  It's possible, I suppose, that a lawyer who has never practiced law or did so in some limited capacity is not aware of the fact that the law deals with such concepts as "reasonable suspicion" on a fairly regular basis.  So, I'm willing to cut those lawyers who may be conjuring visions of Nazis in these circumstances, as well as those opponents of this law who are not lawyers, some slack.  Not much, though.  If there are legitimate bases on which to oppose this law, I don't think any in politics or the media have raised them yet.

Saturday, April 24, 2010

A Problem of Right and Left

An aspect of the old conflict between conservative and liberal political philosophies is on my mind tonight.  I'm pondering the merits of the position that we humans can be improved, if not perfected.

Conservatives like to accuse liberals of being unrealistic for believing that men can be improved, especially when that improvement is to be achieved through the use of governmental authority.  Indeed, there are times when one gets the impression conservatives assert that we cannot be improved--not in this life, in any case.  Our perfection awaits us in the next life, provided we have been very, very good in this one.  To think that we can achieve perfection in this life is a manifestation of the sin of pride.  When we try to perfect ourselves through government we get the French Revolution, or the Russian Revolution, or the Chinese Revolution.  Robespierre, Lenin and Mao appear, and they and their successors do horrible things.

This particular conservative belief is one I've always looked on with something less than fondness.  It seems somehow inconsistent. If we are doomed to failure and sin in this life, how can we ever be deserving of perfection in the next?  That we will achieve perfection in the next, regardless of how we conduct ourselves here, if only we believe in the right God seems a contemptable conceit.  It is a philosophy of defeatism; we're bad, and the best we can do is try to prevent ourselves and others from being very bad, by limiting access to power, and reserving our power to defend ourselves from those even worse than we are at any given time.

At the same time, there can be no question that horrors have resulted through efforts to "improve" humanity.  The quest for an enlightened government remains fruitless.  The chances of a benign despot along the lines of Plato's philosopher king appearing seem increasingly slim; and, I would say, the very idea of such a creature existing is absurd.

One hopes there is a middle course we can steer.  Whatever that course may be, though, I suspect it isn't one being considered by the great and powerful of either party in this great republic.  The right seems consumed with restricting thought and conduct rather than restricting government.  The right feels we need improving, too.  The right is as eager to mandate how we think and act as is the left.

Neither should be allowed to do so.  We cannot improve others, nor should we try to do so.  We can only improve ourselves.  That is within our control.  That seems a quest that is at once noble and realistic.

We're foolish to expect that Republicans or Democrats will do anything which will make us better than we are now.  That's our responsibility.

Sunday, April 18, 2010

A Movable Feast of Unreason

Even the unreasonable rely on reason.  Even the advocates of the irrational use reason, to justify or explain unreason.  It remains necessary (thus far) to make a certain degree of sense when proclaiming one's views, which we all can do with increasing ease thanks to our technology.

But there seems to be a tendency to rely on reason less and less as we shriek our views at one another these days.  In fact, there seems to be a growing tendency among left and right, religious and irreligious, to engage in skreeds rather than argument.  This may be deliberate; emotional appeals may be considered more persuasive.  For example, I follow a blog where another follower recently made the statement, in connection with religion, that ridicule is the only means by which to make certain ("bad", of course) people think.

I admire wit, and the use of wit in argument can be entertaining and even effective.  Sarcasm can be witty, but in order to be witty it cannot be blunt, rude or vulgar.  Unfortunately, this is the kind of sarcasm we encounter more and more in argument.  And, as had been said, sarcasm is generally employed when a reasoned response is not available.  I'm concerned, though, that it is now being employed by most regardless of whether there is a reasonable response.  I suspect that's the case because we are less and less inclined to think, or are less and less able to think.

Our political discourse seems particularly unreasonable.  I wonder what we would even make of an appeal to reason by a politician.  I suspect we would think the politician uninspiring, at best.

As an admirer of stoicism, and pragmatism, I think that reason is an exceedingly valuable tool.  Being something of a libertarian, though, I distrust government--suspect it may be a better word.  I do so because I think it has been made clear that those in power fail to use reason.

I'm currently reading--without much enthusiasm--Liberal Fascism.  I find nothing in it particularly enlightening or surprising, so far.  I think the author is dealing with totalitarianism rather than fascism, but this is to a certain extent immaterial.  Governments of the right and the left have been authoritarian, and will continue to be, as long as governments think it their place to tell us to, or make us, do most things.  The author's point is apparently that the current political left has a history of totalitarianism, and is in many respects totalitarian in impulse.

What I find interesting is the author's evident belief that pragmatism as a philosophical movement somehow contributed to "liberal fascism."  So far, he hasn't bothered to explain why he feels this is the case in any comprehensible detail.  It's emphasis on experiment contributed to it, somewhow.  Mussolini liked the work of William James.  John Dewey, he says, was in favor of American involvement in World War I.  Q.E.D.?

The author seems to feel that movements such as pragmatism by their nature support governance by an elite, by specialists.  I think it's fair to say that philosophy has its fair share of those who believe that rule by the wise is preferable, starting with Plato.  Let's assume that's the case.  Is the appropriate way to avoid this to ensure that the wise do not rule, that specialists do not participate in government?  If reliance on reason somehow results in totalitarianism because those who rely on it think democratic government won't result in the rule or reason (so to speak) is the employment of reason in government to be avoided?

Plainly not.  The conservative, or libertarian, position can also be taken too far.  Limited government may be unreasonably limited.  Reasonable limits should be imposed on the unreasonable.  We haven't figured out how to do that, yet, with any consistency.

It's foolish to contend that reason, or even the "experimental method" should not be employed, in government or anywhere else.  I don't think it has been in any significant sense.  I worry it never will be.  But, it doesn't follow that it should not be.

Saturday, April 10, 2010

Homage to John Dewey

More and more, I find myself admiring Dewey as a philosopher.  He has been, for me, a difficult read at times.  His writing style is very dense, and he seems to have a tendency to circle around an idea rather than nail it definitively.  This makes comprehending him difficult for the impatient reader.

But he is, for me, the most sensible of philosophers; by which I mean that he makes a great deal of sense, and by doing so manages to rescue philosophy from its traditional fascination with matters having little or nothing to do with "ordinary day to day life."  He is a bitter foe of dualisms of all kind.  He accepts humans as organisms which are a part of reality, not somehow separate from it.  Thought, therefore, results from our interaction with our environment, and our effort to bring about results we find useful or desirable.  We are not mere observers of an external world, we are particpants in the world.  The view that our minds are in some fashion apart from the world (and our bodies, for that matter) leads to silly questions regarding whether there really is an external world, and whether other minds really exist.

Humans as participants in the world can influence it; having intelligence, and the ability to learn from experience, they can influence it by recognizing problems and solving them.  Morality and valuation do not have their origin in, nor are they justified by, an appeal to the supernatural, but to the "natural" human interaction with other humans and the world.  His is a very positive naturalism.  Many philosophers, particularly it seems european philosophers, seem to have convinced themselves that if there is no God, then there is no meaning to life, no right or wrong, etc. and we march on to nihilism, or despair, or at least pessimism.  Or, alternatively, that God must exist, because if he does not then there is no meaning to life, no right or wrong, and so on and so forth.

Dewey, though, manages to avoid both the "Quest for Certainty" and the abyss that seems to open up before all too many modern and post-modern thinkers.  Perhaps he does so by accepting that we are part of reality rather than apart from it (and, therefore, not inherently better and more important than it or others).

It's interesting that what he sought to achieve--a recovery or reformation of philosophy--was also being sought by Wittgenstein and others, in the sense that they like Dewey were engaged in efforts to point out that many traditional philosophical problems were the result of misconceptions and misuse of language.  Dewey, though, thought the task of philosophy was not merely to save itself from the bewitchment of language, but also to resolve the actual "problems of men."

Wednesday, April 7, 2010

Further Speculations on Stupidity: Regarding the Response of the Catholic Church to Publicity of Instances of Sexual Abuse

Certain things seem undeniable.  There have been instances of sexual abuse of minors by priests.  There have been efforts by certain Church authorities to "cover up" such conduct.  There have been cases where Church authorities, knowing of such conduct on the part of certain priests, have nonetheless placed those priests in positions where they could continue such conduct (in some cases after psychiatric treatment, or reprimand, or a kind of "probation period" at, e.g., a location where minors would not be present or subject to the authority of those priests).  There has been little or no effort to alert secular authorities regarding such conduct.

Query:  What would be an intelligent way for the Church respond to increasing publicity regarding these undeniable facts--even if the Church somehow felt that such conduct its own affair (which it plainly is not)?

I maintain that it would not take much at all in the way of mental effort for most to conclude that an intelligent response would not include:  complaints that such publicity is an expression of anti-catholic prejudice; complaints that such publicity is the result of an anti-catholic conspiracy; comparing catholics being criticized with persecuted Jews; statements such as those apparently made recently by a bishop that some minors provoke such conduct (a claim which was made in the past by a certain American bishop); complaints that there are too many homosexuals in the Church.  Indeed, I would characterize such responses as being almost unimaginably stupid.

Why are they exceedingly stupid?  For a variety of reasons one would think are self-evident.

First, no rational person can even begin to think such conduct is defensible, on any basis.  Therefore, Church authorities should not even appear to defend, or even mitigate, such conduct.  It is apparent that doing so makes the Church, in the minds of most, an apologist for sexual abuse of minors.

Second, although anti-catholic sentiment has and does exist, particularly in the U.S., since there is no reasonable basis on which such conduct can be denied, to claim that reporting such conduct, and even dwelling on it, is anti-catholic, serves only to make it seem that the Church is complaining that stating the truth is somehow reprehensible.

Third, the comparison of the criticism of catholics in connection with such conduct to the persecution of the Jews is so clearly outrageous it can only result in additional criticism, and contempt, for the Church.

Fourth, the claim of provocation, particularly by minors, in addition to being despicable, cannot even begin to excuse what happened.  It is a claim historically made by rapists, which one would think would not be an association the Church wants to make.

What would be included in an intelligent response?  Acknowledgement, and expressions of remorse.  Efforts to compensate and punish.  Efforts to prevent recurrence.  A "no tolerance" policy.  Cooperation with secular authorities.

Some of this has actually taken place.  Would it not therefore be appropriate to point this out in response to each new story of abuse, or to point out that there are no recent incidents (if that is the case), and the Church will do all it can to prevent such conduct in the future?  And, even if this has been pointed out, doesn't it make sense to continue to do so? 

If there are errors in reporting, it only makes sense to note that as well, of course.

There can be no other reasonable response in these circumstances.  Why then are such other responses being made?

What can account for the stupidity of the responses being made by the Church?  Again, I call for the intensive study of human stupidity.  In this case, is there a kind of institutionalized idiocy at work?  Is this kind of stupidity to be expected of institutions such as the Church when confronted with undeniable misconduct?  Can professed arbiters of morality act intelligently when confronted with demonstrable immorality on their part, or are they somehow deprived of intelligence in such circumstances?

There is so much to be learned regarding our capacity to be stupid.

Saturday, April 3, 2010

On First Looking into Chesterton's "Orthodoxy"

It's an interesting book, though I cannot say I felt like "stout Cortes" gazing with great amazement at the ocean the poet thought he saw, first among europeans.  Chesteron was a clever fellow, and was far too intelligent to maintain that he was attempting to demonstrate why one should be a Christian.  Instead he purports only to tell us why he is one, in an apparent effort to avoid being characterized as an apologist for the faith.  He is careful to note of all his arguments, such as they are, that they address matters which can't be adequately expressed in words.  In other words, he takes pains to cover his (reputedly enormous) ass as he goes about explaining his eventual acceptance of a truth which he seemingly believes cannot be verified, but which he claims was always there, awaiting discovery, much like the Pacific Ocean.

He writes that fairy tales (told to him by his nanny) played their part in his eventual acknowledgement of Christianity.  He seems to have felt that they contain some truth beyond common sense.  Perhaps this delight in fairy tales was typical among english gentlemen of his time.  Not being one, however, and having merely read some of them as I had no nanny to tell me of them, I don't find them as impressive.  One he doesn't mention is that of Goldilocks and the Three Bears, but I think that fairy tale in particular tells us much about why he became orthodox eventually, or at least how he explains he did so.  After some time and having tried other ways of comprehending the world, he simply came to believe in Christianity because it feels "just right."

He seems to prefer proclaiming to explaining.  There is not much in the way of reasoning to be found in this work.  I'm not familiar with most of those he finds wanting in various respects, except Bernard Shaw and Nietzsche (he also mentions H.G. Wells as being lacking), and so can't say with any certainty whether his charcterizations of them and their opinions are fair.  What he calls materialism, though, seems to be of a very simple-minded variety, and his criticisms of eastern religions, primarily Buddhism, may have their bases in what those religions appeared to be to the theosophists and other european mystics of that time.  In other words, his criticisms, like his arguments, are cursory and conclusory.  Being fond of the stoics, I thought his treatment of Marcus Aurelius was rather shabby.  He seems to have believed Marcus to be less than manly in his approach to life.  It seems inappropriate for an obese english gentleman of very comfortable means to take this view of a Roman Emperor who spent the bulk of his reign in military camps and campaigns against tribes such as the Quadi.  As I recall, the dreadful C.S. Lewis felt that Christianity was the only truly "manly" religion as well.  Perhaps Lewis had a nanny also.

His defense of the Trinity seems merely weird.  If I understand him correctly, it somehow prevents us from viewing the Supreme Being as a kind of dictator, or from it being one.  It is instead, through the mystery of the Trinity, a kind of unusual committee; Jesus the human humanizing the Father, and the Holy Ghost doing whatever it is supposed to be doing, in a kind of harmony.  But, having heard the Trinity explained by a priest as analogous to a ham sandwhich, I can accept that Chesterton's view may be as good as it gets.

Regardless, I feel the same disappointment reading Chesterton on Christianity as I have felt reading the apologies, or explanations, of others concerning it.  No real effort is made to explain the divinity of Christ, which would seem to me a fairly important aspect of the religion.  Christ said remarkable things, says Chesterton, and if we can trust what others wrote regarding what he said that may well be true.  It doesn't follow, though, that he was God.  Regarding the fact that there were admirable humans long before Christ lived, this means, says Chesterton, that they were really Christian, but Christians who evidently were not required to know of Christ or believe him to be God in order to be Christian.

One wonders why the more sophisticated and intelligent defenders of Christianity spend so little time and effort on establishing why Christ is divine, or whether it is necessary to believe him divine in order to be Christian.