Tuesday, 24 April 2007

Contingency, Tragedy, and Solidarity

I leave you this fine evening with a column by philosopher John Silber.

Encyclopedia of Philosophy, 2d ed.

As of today, I am the proud owner of this set of books, to which I am a contributor. The 10 volumes contain 6,200 pages. I am going to read two pages per day (I started today) until I’m done with the set. It will take me 3,100 days, or 8.4 years. I just turned 50. I’ll be 58.4 years old when I’m done. How much do you want to bet that I don’t miss a day?


If this isn’t the best album ever made, then I’m an osprey‘s daughter.

R. M. Hare (1919-2002) on Moral Reasoning

The rules of moral reasoning are, basically, two, corresponding to the two features of moral judgements which I argued for in the first half of this book, prescriptivity and universalizability. When we are trying, in a concrete case, to decide what we ought to do, what we are looking for (as I have already said) is an action to which we can commit ourselves (prescriptivity) but which we are at the same time prepared to accept as exemplifying a principle of action to be prescribed for others in like circumstances (universalizability). If, when we consider some proposed action, we find that, when universalized, it yields prescriptions which we cannot accept, we reject this action as a solution to our moral problem—if we cannot universalize the prescription, it cannot become an ‘ought’.

(R. M. Hare, Freedom and Reason [Oxford: Clarendon Press, 1963], 89-90)


University of Chicago law professor Geoffrey Stone doesn’t know the difference between overruling a previously decided case and reversing a lower-court ruling. Worse, he’s wrong. The Supreme Court in Gonzales v. Carhart (2007) didn’t overrule Stenberg v. Carhart (2000). It distinguished the cases. Both remain good law. I’m glad I didn’t get my legal education at the University of Chicago.

Addendum: Here is the most unsettling paragraph of Professor Stone’s post:

What, then, explains this decision? Here is a painfully awkward observation: All five justices in the majority in Gonzales are Catholic. The four justices who are either Protestant or Jewish all voted in accord with settled precedent. It is mortifying to have to point this out. But it is too obvious, and too telling, to ignore. Ultimately, the five justices in the majority all fell back on a common argument to justify their position. There is, they say, a compelling moral reason for the result in Gonzales. Because the intact D & E seems to resemble infanticide it is “immoral” and may be prohibited even without a clear statutory exception to protect the health of the woman.

Professor Stone has left the realm of law and entered the realm of science. He has left the realm of justificatory reasons and entered the realm of explanatory reasons. He has left the realm of grounds for belief (epistemology, legal reasoning) and entered the realm of causes of belief (psychology, cognitive science). Why anyone should care about the amateurish (not to mention insulting) psychological speculations of a law professor is beyond me. Has it gotten this bad in our law schools? Do we now dismiss judicial rulings on the basis of speculation as to the motives of the judges? Does criticism consist of reconstructing the causal origins of (and influences on, and consequences of) a judge’s beliefs or values? How would Professor Stone like it if, instead of responding to the substance of his blog post (or his academic writings), we speculated about the etiology of his beliefs and values (and how they affect—or determine—the arguments he makes or the analyses or criticisms he offers)? What exactly would be the point of that, other than to insult him? Law, like morality, religion, medicine, art, and science, is an autonomous institution, with reasons, standards, rules, concepts, and methods of its own. Applying the methods of science to it is not to do law; it is to make law the object of a scientific study. If Professor Stone wants to study law from the outside, he is welcome to do so, but first he needs proper training—in science—and, once trained, he needs to move to a suitable academic department, such as psychology, sociology, or political science.

By the way, the argument Professor Stone attributes to the Gonzales majority (“Infanticide is immoral; intact D&E resembles infanticide; therefore, intact D&E is immoral; what is immoral may be prohibited; therefore, intact D&E may be prohibited, i.e., there is no constitutional right to perform intact D&E”) does not appear in the opinion; nor can it reasonably be construed as the justices’ reasoning. Professor Stone made it up out of whole cloth—the better, one supposes, to avoid or dismiss their actual reasoning. Can you say “straw-man fallacy”? One wonders whether Professor Stone allows his students to commit this fallacy. I certainly don’t let my students commit it.

Addendum 2: Here is Jan Crawford Greenburg’s column (or rather, blog post) about Professor Stone.


Read this blog post (of two years ago) by law professor Orin Kerr. At an open microphone, a law student asked Supreme Court Justice Antonin Scalia whether he (Scalia) sodomizes his wife. How does one get from “Justice Scalia engages in oral or anal intercourse with his wife” to “There is a constitutional right to engage in sodomy”? The quality of law students has plummeted since I was in law school.

A Year Ago


From Today’s New York Times

To the Editor:

Re “Postures in Public, Facts in the Womb” (column, April 22):

David Brooks writes, “In the beginning there is the womb and the creature inside.” Sounds as if “the womb” is sitting over there in the corner, minding its own business, unattached to a person!

In fact, “in the beginning” there is a woman. It is her body we are talking about. It is her decision to take on the dangers of pregnancy and the future obligations of parenthood; that is the real beginning of this story.

Sorry, Mr. Brooks. Neither you, nor the Supreme Court, nor any other person can decree when “the beginning” starts. Because in the end, the choice about what to do with any pregnancy belongs to the person “the womb” belongs to. A woman.

Kate Permut
Scarborough, N.Y., April 22, 2007

Note from KBJ: Two things. First, the law can decree when “the beginning” starts—and it has the authority, or at least the power, to enforce its decrees. Second, the choice about what to do with any pregnancy does indeed belong to the person “the womb” belongs to, just as the choice about whether to commit murder belongs to the would-be murderer. How society responds to that choice is the issue.


Here is the blurb on a New York Times op-ed column:

Climate stress may well represent a challenge to international security just as dangerous—and more intractable—than the arms race between the United States and the Soviet Union during the cold war.

Unbelievable. It should read as follows:

Climate stress may well represent a challenge to international security just as dangerous as—and more intractable than—the arms race between the United States and the Soviet Union during the cold war.

These are the caretakers of our language. We are in trouble.


I enjoy reading Jonah Goldberg’s columns, and so do 73.4% of the American people. See here.

Fred’s Retort

Armin Mobasseri sent a link to this blog post by Fred Thompson.

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