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Archive for the ‘justice’ Category

The War at Home

Images of warfare abound these days, from Syria, Gaza, northern Iraq…and Ferguson, MO. As Dylan Scott (TPM) notes, the images out of Ferguson have been “harrowing.” “American law enforcement decked out in military fatigues, patrolling the streets in armored vehicles that look like they were plucked out of Afghanistan or Iraq.” 

I have blogged in the past about the distribution of war surplus to domestic police forces via the Department of Defense’s 1033 program (here and here).  Unsurprisingly, Ferguson and St. Louis County have both benefited from the 1033 program. Although precise information is difficult to come by—the Pentagon only releases information on tactical equipment for counties—USA Today has a partial list for St. Louis County, which includes twelve 5.56 mm rifles, six .45 caliber pistols, night vision equipment, vehicles, a trailer, and a generator.

National Journal has some images of the police response in Ferguson, in a piece aptly titled: “What a Militarized Police Force Does to a City.” Terrence McCoy (Washington Post) has an article on the use of tear gas in Ferguson. As McCoy explains:

Despite its ubiquity across the globe and in United States, tear gas is a chemical agent banned in warfare per the Chemical Weapons Convention of 1993, which set forth agreements signed by nearly every nation in the world — including the United States. The catch, however, is that while it’s illegal in war, it’s legal in domestic riot control.

Sven-Eric Jordt, Yale School of Medicine, is quoted as saying: “Tear gas under the Geneva Convention is characterized as a chemical warfare agent, and so it is precluded for use in warfare, but it is used very frequently against civilians. That’s very illogical.”

It is also illogical to provide police forces with military grade equipment based on the urgency of the war on drugs or the war on terror. As recent stories reveal (recounted in a fine piece by Radley Balko, WSJ), SWAT teams and the technology they have been provided through 1033 and Homeland Security grants have been used judiciously to break up illegal poker games at VFW halls, to stop underage drinking in a New Haven bar, and to apprehend Tibetan monks whose visas had expired in Iowa.

Balko concludes: “What would it take to dial back such excessive police measures? The obvious place to start would be ending the federal grants that encourage police forces to acquire gear that is more appropriate for the battlefield. Beyond that, it is crucial to change the culture of militarization in American law enforcement.”

Until that occurs, one fears, the war at home will continue.

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If you read enough political philosophy, at some point you wonder whether there really is anything new under the sun. On the heels of Edward Snowden’s wonderful and astonishing leaks, we get this:

U.S. Rep. Peter King, chairman of the House Homeland Security Committee’s Subcommittee on Counterterrorism and Intelligence, called Snowden “a defector” who should be turned over to the United States with an eye toward harsh prosecution.

“This person is dangerous to the country,” King said on CNN’s “Starting Point” on Monday.

While Snowden has not yet been charged with a crime, the Justice Department said Sunday night that it had begun a preliminary investigation into what it called “the unauthorized disclosure of classified information by an individual with authorized access.”

I could not read this without recalling John Locke’s words in defense of revolution (casting out of the government) in the Second Discourse. Locke responds to those who insist on the immorality, the injustice, perhaps even the violation of natural law involved in rebellion. First, Locke’s justification for revolution:

Sec. 222. The reason why men enter into society, is the preservation of their property; and the end why they choose and authorize a legislative, is, that there may be laws made, and rules set, as guards and fences to the properties of all the members of the society, to limit the power, and moderate the dominion, of every part and member of the society: for since it can never be supposed to be the will of the society, that the legislative should have a power to destroy that which every one designs to secure, by entering into society, and for which the people submitted themselves to legislators of their own making; whenever the legislators endeavor to take away, and destroy the property of the people, or to reduce them to slavery under arbitrary power, they put themselves into a state of war with the people, who are thereupon absolved from any farther obedience, and are left to the common refuge, which God hath provided for all men, against force and violence. Whensoever therefore the legislative shall transgress this fundamental rule of society; and either by ambition, fear, folly or corruption, endeavor to grasp themselves, or put into the hands of any other, an absolute power over the lives, liberties, and estates of the people; by this breach of trust they forfeit the power the people had put into their hands for quite contrary ends, and it devolves to the people, who. have a right to resume their original liberty, and, by the establishment of a new legislative, (such as they shall think fit) provide for their own safety and security, which is the end for which they are in society. What I have said here, concerning the legislative in general, holds true also concerning the supreme executor, who having a double trust put in him, both to have a part in the legislative, and the supreme execution of the law, acts against both, when he goes about to set up his own arbitrary will as the law of the society.

Then, Locke responds to the objection that this rationale is a justification for trivial incidence of revolution:

Sec. 226. …this doctrine of a power in the people of providing for their safety a-new, by a new legislative, when their legislators have acted contrary to their trust, by invading their property, is the best fence against rebellion, and the probablest means to hinder it: for rebellion being an opposition, not to persons, but authority, which is founded only in the constitutions and laws of the government; those, whoever they be, who by force break through, and by force justify their violation of them, are truly and properly rebels: for when men, by entering into society and civil-government, have excluded force, and introduced laws for the preservation of property, peace, and unity amongst themselves, those who set up force again in opposition to the laws, do rebellare, that is, bring back again the state of war, and are properly rebels: which they who are in power, (by the pretense they have to authority, the temptation of force they have in their hands, and the flattery of those about them) being likeliest to do; the properest way to prevent the evil, is to show them the danger and injustice of it, who are under the greatest temptation to run into it.

Locke is claiming, in effect, that it is not those who rise up in response to despotic government that are guilty of injustice, but those who use their authority to violate the trust of the governed. It does seem likely that Snowden violated some laws here, but King and his ilk are ignoring the prior question, whether in the conduct of its work the executive branch is guilty of the first violations of our fundamental law, the Constitution. It is certainly possible the answer to that is negative, but there can be no doubt that is the right question to ask, and that without an answer to it there is no moral judgment to be made about Snowden’s conduct.

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Over at BHL, my friend Andrew Cohen has responded to my post earlier this week making a skeptical case against the normative credentials of the idea of “social justice.” Andrew thinks that part anyway of the problem with my skeptical argument is that is framed in terms of rights. He believes that “harms” are “more basic” than rights, and that if we recast the story in terms of harms, we get a plausible normative account of where exactly social justice (more specifically, moral injustice) comes to be. I had framed that question in terms of supervenience, which is the idea that somehow moral (or more generally normative) properties come to be because of or in virtue of underlying non-normative (natural) properties. Most moral philosophers accept that as an analytical framework, because (i) it seems to be the way we think about normative properties, and (ii) it is neutral between at least a wide variety of theories about what the normative properties we should care about are, and what they supervene upon. I don’t think Andrew is rejecting that bit of analytic framework: he is thinking it works better if we look at “harms” as being the base (the “subvening” class of natural properties). Andrew has a book coming out explicating this sort of framework, and I haven’t read it. No doubt some at least of what I have to say here Andrew has counterarguments for in his book. My point will be that what we have on the table now neither solves the present problem (making normative sense of social justice) nor is an advance in providing analytical tools. Let me take the second, more general, point first.

First, I agree with Andrew that rights are not the most basic normative (moral) concept. But I don’t think that matters here. We’re after an understanding of justice or injustice, and rights-talk can usefully be used as a shorthand for the moral status that is violated or abused or what have you when injustice occurs. (And I’m fine with Andrew’s suggestion that it may be more useful to get a grip on injustice than on justice.) We can differ on what rights we have, and on why we have the rights we have, but still agree that injustice occurs when rights are violated. That anyway is the tradition I think most BHL’ers have been working in (indeed most liberal political philosophers, in the inclusive sense of “liberal”), and the one I work in. I don’t think it is one Andrew offers any alternative to, as I will argue.

Here’s the problem, and it is not a new one. The notion of “harm” is under pressure from both the normative and the non-normative side. That is, we want to use the term in such a way that harms are bad, but we also want to use it to capture certain kinds of natural fact about the world, such as when for example I hit your arm with my running chain saw. Since attaching normative properties to natural properties is in some sense the very problem I think we face in thinking about “social justice,” this might be a virtue for thinking in terms of harms. In fact I think it is not, because rather than providing a careful analysis of how this “attachment” takes place, harms-talk often equivocates between the two uses. Andrew does this in his post.

Harms, he says, are not just hurts. Although he doesn’t define “hurts,” what he goes on to say about harms suggests that we could think of hurts as “setbacks to interests.” That’s fine, provided we have a (more basic) account of interests. I doubt we can do things this way, but set that aside. The point is that hurts, so understood, have no import for (in)justice. That’s because setbacks to interests, though in most cases disagreeable to those whose interests they are, don’t necessarily represent moral wrongs. I can apply to a job I really like, and which it would be in my interest to get, and be in dandy shape until you — better educated, more experienced, a better candidate in every way — apply for the job as well, and get it. You have set back my interests in doing so, and so have hurt me. But (barring some further story) you have not wronged me, and there is no injustice involved. So hurts are not what we are interested in.

To move past this point, Andrew specifies that what we are interested in is wrongful hurts, wrongful setbacks to interests. That’s what harms are. They are wrongful, hence normative.  (So, strictly speaking, “wrongful harms” should be redundant, on Andrew’s view. I think it is telling that he finds himself using that locution anyway.) But now we need an account of when harms are wrongful, and when not. Harms are not, after all, normatively basic: they are dependent on an account of when setbacks to interests are wrongful, and when they are not. It is worth considering what J.S. Mill does when he runs into this problem, in trying to establish his “Harm Principle” as a basic principle for understanding when social intervention in individual action is permissible and when not. As many observers have noted, this strategy cannot possibly make harms basic, because many (including the harms to “disappointed competitors,” as in my example above) do not trigger the Harm Principle. That is to say, they don’t carry the normative significance that the relevant harms do. Nor do harms resulting from the “inseparable” effects of the “unfavorable judgment of others” (Ch. V), nor harms that are not “direct and in the first instance” (Ch. I), and so on. Mill finds himself using the language of “rights” to pick out which harms count: it is those that violate rights! (Ch. V).

I don’t mean to saddle Andrew with Mill’s problems, but he faces the same challenge: which harms are wrongful? When Andrew tells us what that criterion is, I will say: fine. Let’s say that people have rights to not being harmed in those wrongful ways, and we are right back where we began. Where is the injustice that doesn’t occur by individuals to individuals — the harm (following Andrew) that we need the notion of “social justice” to capture?

Notice that we cannot answer simply by identifying people whose interests have been set back. Doing so is identifying hurts, but not yet harms. To show the harms necessary for injustice, we have to show that these hurts are wrongful. If we are successful, at the end we will have an account of wrongfulness that cannot be set out in terms of hurts (since it is a criterion for when hurts become harms). So the recourse to hurts and harms is a superstructure, not a foundation. I doubt it offers much to moral theory, but as I say I haven’t read Andrew’s book, so Andrew very likely offers interesting ways to address these concerns.

In any event, the problem for the case at hand —making normative sense of “social injustice” — is that the structure Andrew is providing will face a challenge: show how there is a wrongful hurt that isn’t a hurt imposed by an individual, on an individual. Perhaps his book will do this, but we don’t have an indication yet of how he can do so. As his commenters have pointed out, Andrew’s example (of a receiver of a stolen iPhone) doesn’t work. There is no question that there is wronging occurring here, and that it counts as injustice. (At least I am not inclined to quarrel with the example in this way.) But just for that reason, we don’t need “social justice” to identify the wrong: we get everything we need with plain old injustice. At least, Andrew has not shown that this is not so. Moreover, this is far from the kind of case that “social justice” is trotted out to cover: the kinds of cases that, for instance, Kevin hoped to explain with the idea that “social justice” is an emergent property. So I don’t see that we make any progress on the problem by focusing on hurts or harms.

Addendum: one other point about Andrew’s argument. He says this:

The reason is simply that groups are nothing more than collections of individuals, so if something supervenes on group G, it supervenes on the collection of individuals that make up group G.

The first clause is amenable to moral individualism, on one reading. The fact that these individuals may be collected into a group in general would not change the moral standing, entitlement, or obligations of those individuals, if moral individualism is true. But the second clause (following “so”) can be true only on a reading of the first that is not compatible with moral individualism. The question is whether the subvening base of the moral properties (in this case, justice or injustice) is the individuals in the collection, or the collection itself. These can have importantly different properties. The House of Representatives is a collection of individuals. That collection has the authority to pass laws that none of its members do. The individuals are entitled to cast votes in their respective states, but the collection is not. Thinking that all the properties of the collection are just the properties of its members is a classic informal fallacy. I think the normative purport of “social justice” depends on that fallacy, and this is an indication of how easy it is for even a good philosopher to commit it. On moral individualism, only individuals, not the collections to which they belong, subvene normative properties. That’s why there is a normative problem with “social justice.”

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I have great respect and (in many cases) affection for my friends at Bleeding Hearts Libertarians. But I am not a bleeding heart libertarian, and from the outset I have resisted its siren song, mostly over its endorsement of “social justice” as a moral and/or political ideal. Unlike Hayek, I do not think the concept is incoherent. But I think Hayek has a point, and my resistance to the concept I think tracks at least some of Hayek’s motivation. But that resistance is normative, rather than conceptual. Recent exchanges on BHL have helped me clarify my thinking about the point that concerns me.

Kevin Vallier posted this week on the topic, responding to challenges from David Friedman as to the cogency of the concept. The discussion that follows Kevin’s post is excellent, and I am highly sympathetic to many of those resisting Kevin’s analysis. However, I would mount an objection slightly different than those on offer there.

Start with a point of agreement. Kevin says,

I take it that the term “social justice” can be used to cover individual rights-violations. For instance, if John rapes Reba, he has committed a grave injustice, one that could be called a social injustice. However, this is not the conceptual home of the concept of social injustice.

He is surely right about this. Individual rights-violations are, by their nature, unjust. Since they are transactions between two individuals, they are also social, and we can, if we like, uselessly append “social” to our description of actions as unjust. If that is all “social injustice” means, there would be no quarrel here. As Kevin suggests, we need to look elsewhere for its “conceptual home.”

Kevin thinks that “conceptual home” is in the class of emergent properties. Here is his central claim:

Social injustice is an emergent property of certain kinds of social, moral and political practices. Let’s illustrate with the familiar example of institutional racism. I take it that an institution is racist insofar as it reliably outputs states of affairs where a racial group fails to receive its due based solely on the racial properties of its members. Thus, even if no one in the institution is racist, they participate in practices that result, say, in blacks having fewer opportunities than whites simply because they are black. In other words, the institutional rules operate such that unequal outcomes are caused primarily by racial differences, even if no one person is acting in a racist fashion. Institutional racism is a paradigmatic case of social injustice. It is an emergent property of a social institution that commits an injustice without any individual acting in an unjust fashion.

Emergent properties are an important class of properties, but Kevin’s proposal is unusual in deploying the concept in this way. Why? He is proposing that a normative property — social injustice — is emergent from non-normative properties (perhaps the distribution of “opportunities,” however those are measured). And this is curious. The typical deployment of the notion of emergent properties would, I think, involve the emergence of non-normative (let’s call them “natural”) properties from other natural properties. Many of the spontaneous orders we see in both natural and social science are of this sort. The structure of crystals is an emergent property in the sense that crystals have that structure because of other physical properties they have. Language-use is a property that humans have in virtue of various neurological and other biological properties we have. And so on. Nothing to see here. Emergence of normative properties from other normative properties is also, I’d think, unproblematic. That would be, for example, the liberal analysis of slavery. We see the large scale pattern of injustice as caused by an assortment of unjust individual attitudes, beliefs, and courses of conduct. Again, nothing to see here.

But the proposal that normative properties might emerge somehow from natural properties oughtn’t to be dismissed simply because it is unusual. If you work much with normative concepts, you become accustomed to the idea that things work differently when you are contending with reasons, norms, and the like rather than causes. If the world is a causal order, and it has normative properties, then somehow we have to end up with normative properties emerging from natural ones. The form of emergence that moral and other philosophers typically deploy is supervenience. Normative properties like goodness, rightness, and so on supervene on natural properties, in the sense (some sense; different theories give different accounts of this relation) that the normative properties occur somehow because the natural properties occur. If you are a hedonist, for example, you think that badness supervenes on pain, goodness on pleasure. Something (an act, a state of affairs) has the property of badness precisely because it also has the property of being painful.

And this gets us to what is interesting. Remember that, if the concept of social justice is going to be at all interesting, it cannot simply be redescribing the sort of injustice that occurs when individuals violate the rights of others. What does the social injustice supervene on? The crucial point is: whatever the answer to that question, it is not a property of individuals.

Is that a problem? I’m not sure. I am inclined to think that the essence of individualism at the heart of liberalism is a kind of moral individualism — the idea, roughly, that all sources of value, obligations, and so on are individuals. Does Kevin believe that? Here’s what he says:

I can’t speak for my co-bloggers, but from my vantage point libertarians all too often ignore social injustices because of their sometimes flat footed (dare I say “cartoon”?) moral individualism. I’m a moral individualist in the sense that I think injustices can only be done to individuals, families or to voluntary associations. In a real sense, I don’t think injustices can be committed against “Americans” or “blacks” understood as groups defined independently of their members. So traditional libertarians are right that emphasize that the idea of social justice can sometimes be deployed in inappropriately collectivist ways.

But social injustices can be committed independently of human design. That’s a significant claim that departs from many threads of libertarian thought popular today. And my view on the matter is one of the reasons I joined the blog.

How does the moral individualism Kevin endorses differ from “cartoon” moral individualism? I’m not sure.  Is it an aberration that in a previous paragraph he spoke of “a racial group failing to receive its due”? I think it is not an aberration, but a natural slide invited and made possible by adversion to social justice.

I believe (and I think Kevin believes) that groups are per se not due anything. There are certainly moral and political positions (positions worth engaging) that disagree. But these are certainly not within either the classical liberal or libertarian tradition, and they require a rejection of the moral individualism that I think is worth endorsing, and to which Kevin is paying lip service. And the issue here isn’t the defensibility of such a claim, but whether or not those committed to libertarian ideals and principles should embrace or reject the use of the concept of social justice.

Is this then just an unfortunate slip? The problem is, without the thought that the normative property (the social injustice) supervenes on facts about groups, rather than individuals, there is no injustice here to be found. And that’s just where the BHL’ers would like to be able to find injustice. It’s tempting to revert to the idea that the individuals in the groups in question suffer, say, from a deprivation of opportunities. But either those deprivations are by individuals, to individuals, in a way that violates the rights of the injured parties, or those are not. If they are, then we have plain old injustice, without a need to appeal to “social justice.” And if they aren’t, then it’s hard to see where the moral complaint is, nor what individuals are “committing” the social injustice. Here the view Kevin is proposing is trying to have it both ways. Skeptics about social justice think that is endemic to the concept.

It’s worth noting that in Rawls’ hands the problem has to be located in a different place. I can’t see that Rawls ever locates the injustice of social injustice in properties of groups. (Though groups figure into the specification of the remedy, in the form of the Difference Principle, I take this to be a feature of the solution to the problem, not part of the formulation of the normatively problematic state of affairs — the social injustice — itself.) In that sense, Rawls’ moral individualism is intact. To get to social injustice, as I understand him Rawls has to build the social properties at issue into the obligations of justice we have as individuals. That is, part of what it is for us to treat each other justly, as individuals, is on his view to establish and sustain social institutions with the properties called for by principles of justice. That way of conceiving of social justice has its own problems, not for this post (which is already too long as it is). Is it compatible with thinking that social injustice is an emergent property (to return to Kevin’s basic proposal). Perhaps. But if so the emergence is a 5th wheel: all the work in generating the social injustice is done by individuals failing, in effect, to act justly in establishing institutional arrangements that satisfy the principles of justice. I am skeptical that we do have obligations of justice of the sort that this interpretation of Rawls requires. One reason for doing so is that (like Nozick) I suspect that these obligations of justice are incompatible with obligations of justice I am much more confident we have toward each other (such as obligations generated by desert). That’s why I think there is something deeply problematic about the Rawlsian conception of social justice. Those reservations are not alleviated by recourse to thinking that social justice (or injustice) is somehow emergent.

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