I wrote:
> I reject this kind of appeal to authority.
JKS writes: >What appeal to authority? What authority? I was just
giving you advice.<
_your_ authority, since you didn't justify the "advice" in any way. It was your Word: therefore I was expected to accept it.
me: > _Why_ is it
> verboten for judges to
> take moral stands?
JKS: >Because in a society that claims to be democratic,
it's not their job. They're supposed to interpret the
law. The moral judgments are made by the legislators.<
it claims to be democratic, but it's a democracy dominated by money power. If I were to develop an argument against judges taking moral stands, it would be based on the view that most such behavior would be pointless (since it would be overturned on appeal). Further, if it wasn't overturned, it's likely because it reflects the shared (class) interests of judges, one that's very much like the petty bourgeoisie of old.
Still, I would admire a judge who threw a spanner in the works to block the attack on Iraq.
JKS:>Of course, as we have noth said, even if they try to
do their job their views will come into play. But we
don't want Scalia saying, I think abortion is immoral,
so I'll vote to allow states to make it illegal. We
want him to say: the Constitution, as interpreted by
this Court, unfortunately protects a woman's right to
choose, and I, unfortunately, have to vote to uphold
Roe and Casey.<
but isn't this just covert taking of a moral stand? isn't he and the other four going to cloak their anti-choice decision in constitutional-sounding mumbo-jumbo (full of sound and fury, but signifying nothing), just as they did in the Gore vs. Bush decision? Why do you trust Scalia to say what he means? or to mean what he says?
> I can imagine that it would be
> better if they were to do
> so openly rather than doing it covertly, as they
> typically do now. But
> again, I haven't thought about this issue. I'd
> rather hear an argument
> against it than mere assertion.
>I have a 60 page paper on the subject looking for a
home, some of the argument is summarized above, shall
I email it to you?<
since "I am not a lawyer" (to paraphrase a late President), that would be useless to me. Is there any way to paraphrase it? what are the assumptions you start with? what kind of logic do you use? is it a socio-economic analysis of the legal system?
me:
> I never was focusing on the "role of the judge." How
> did the focus become
> only on the role of the judge? In this thread, I was
> _always_ talking about the legal _system_.
JKS: >Because you used the expression "judicial system." ANd
we weretalking about the Court's upcoming review of
aff action, i.e., the behavior of judges.<
The judicial system is pretty much identical to the legal system, while a "system" cannot be reduced to mere behavior of individuals.
In any event, the Supremes' decision is completely different from the standard run-of-the-mill judge. They aren't subject to any kind of appeal, so they can simply make the kind of moral judgement you abhor (and dress it up in legal lingo) and there's nothing anyone can do about it until the balance of power changes so that reasonable people can be appointed to the Court.
I had written:
> > as a an ethicist friend of mine says, one of the
> > strongest (and easiest)
> > moral cases one can make is by pointing to the
> > contradiction between moral
> > theory and actual practice (i.e., hypocrisy),
> > because there's no need to
> > develop basic moral principles
> JKS:>I think that's cheap, actually, not strong. <
> again, an appeal to authority!
JKS replies: >No, it's not. Unless you take me to be saying that you
should believe what I said because I think so and I'm
holding myself out to be an Authority, which I don't,
except on the content of the law, where I actually am
an authority at least hereabouts.<
maybe you aren't the Authority, but why should I believe what you say? (and we are not talking about the content of the law.)
> In a world where there is no moral consensus, I see
> nothing wrong with a
> "cheap" criticism of hypocrisy. Noam Chomsky, for
> example. uses that kind of
> critique regularly, and with good effect.
JKS: >I don't think it has particularly good effect. It
diverts attention from the underlying badness of the
actions to the formal inconsistency between the
pronounced justification and the action. It's
essentially a liberal critique, not in the good sense
of liberal, but in the wishy washy sense.<
interesting critique of Chomsky.
> The problem with, e.g., the phony defense of color blindness as
promoting merit is not that people don't act
consistently with it, but that in a racist society,
colot blindness leads to oppression.<
that's more the Marx version. He pointed to the contrast between capitalist rhetoric and the actual structure of the system. Chomsky does this too, sometimes.
> >(which some say is
> > impossible).
>
> JKS:>But no one except philosophers really believes
> that.<
>
> Should we ignore philosophers and go with what the
> non-philosophers say,
> even when the latter could be wrong?
JKS:>As a sometime philosopher, I'd say, definitely. There
is no proposition so absurd that some philosopher has
not maintained it. When philosophers generate silly
puzzles about thinks that no one really doubts, e.g.,
whether the real world is real, whether we can make
moral judgments at all, whether there are other minds,
the proper response, if one cares enough about it, is
to diagnise where they went wrong and what false
presuppositions led them to doubt things where no real
grounds for doubt exists.<
I didn't say _obey_ or _believe_ what philosophers say (not to mention what _all_ philosophers say). I said that we shouldn't ignore their points. Philosophical reflection should not be ruled out. That would be anti-intellectualism.
Now, I'm willing to accept that there's some fundamental basis for morality. But I find that most people who agree with this general proposition base their agreement on some irrational religion...
> >(According to
> > Cornell West's dissertation, Marx's ethics ended
> up
> > focussing precisely on
> > this contraecitions.)
>
> JKS:>Not West's strongest argument in my view.<
>
> _why_ is it weak? just because you say so?
JKS: >No, because I think that's not Marx's approach, such
as it is, to ethics. He's not an exposer of hypocrisy,
except incidentally. <
As should have been clear, I was using the word "hypocrisy" as extremely-short shorthand for the contrast between ideology and practice.
> My impression is that West doesn't present enough
> evidence for his case. But
> once you think of the mature work of Marx in these
> terms, it makes more
> sense. Marx clearly is morally committed, but does
> not argue in terms of
> "capitalism is immoral."
JKS: >This obviously true, although Marx clearly is
outraged by capitalism [as West and almost all other observers have noted].<
but he presents no moral philosophy to justify this outrage. He does not re-present his early analysis of alienation as part of his analysis of capitalism in CAPITAL. Instead, his focus is on the critique of _political economy_, the contrast between its words (both positive and normative) and reality, practice.
> Instead, he does stuff like
> comparing the realm of
> "Freedom, Equality, Property, and Bentham" (the
> official capitalist morality
> of his day) and the reality he sees in production
> and in capitalist society
> as a whole of Capitalist Supremacy, Inequality,
> Exploitation, and Rule by
> Profit.
JKS:>But this isn't an expose of hypocrisy. Hypocrisy is
the tribute vice pays to virtue (Wilde); the hypocrite
knows he's being a phony.<
definitions are not set in stone, as if some Prophet brought them down from the mountain. They are not shadows on the cave wall, imperfect pictures of some unseen reality of idealized forms. Rather, definitions are conventional (created by people), often inconsistent, and depend _on context_. In the context of what I wrote, this is not what I meant by hypocrisy.
> Marx's theory of ideology
deoends on the system convincing people they really
are acting one set of principles while they are in
fact being moved by other forces. Someone so convinced
is not a hypocrite, rather, he's ideologically
blinded.<
this is not very different from what I said.
JD
