Thoughts on rationalism and the rationalist community from a skeptical perspective. The author rejects rationality in the sense that he believes it isn't a logically coherent concept, that the larger rationalism community is insufficiently critical of it's beliefs and that ELIEZER YUDKOWSKY IS NOT THE TRUE CALIF.
When Did Prosecutors Forget Their Job Is Obtaining Justice Not Convictions?
A prosecutor in Minnesota has decided to charge a woman who apparently shot her boyfriend at his urging as part of a stupid youtube trick with a gun. Apparently he showed her a book that he’d shot previously and failed to penetrate to convince her to shoot a book he held in front of him while they filmed it. This is obviously tragic but in choosing to prosecute this woman prosecutors seem to have totally forgotten their job is to pursue justice not rack up convictions.
Might this meet the legal standard for manslaughter? Sure. Is anything achieved by prosecuting this woman other than ruining her life and that of her boyfriend’s child and soon to be born child? It is just cruel to further harm the deceased by hurting his family when there is no need. I have serious issues with the arbitrary power prosecutorial discretion provides but its cases like this which prosecutorial discretion exists for.
Usually we prosecute (2nd degree) manslaughter to deter people from engaging in behavior that unreasonably risks harm to others but in cases like this there is obviously no possibility of deterrence. Had she the presence of mind to realize the danger and weigh the risk of a manslaughter conviction she would have been deterred by the risk of killing her boyfriend. Even from a retributive point of view she lacked the kind of malicious intent that those who believe in this sort of thing usually want to punish and simply living with the consequences in this case is surely pretty awful1.
I hope the prosecutors offers a generous plea deal but that makes even less sense! If you agree she doesn’t deserve substantial prison time here why burden her with a criminal conviction? If its about symbolism (which is a bad reason to prosecute anyone) a slap on the wrist does insult the value of the victim’s life in a way that prosecutorial discretion doesn’t as it means you are holding the accused responsible for her boyfriend’s death but apparently don’t think that is worth very much.
I know that prosecutors have a long track record (browse Mimesis law/Fault Lines) of cruel prosecutions but I can almost imagine they really believe fighting the drug war means they need to convict the girlfriend who once drove a few grams of coke across town as a favor with conspiracy charges for all the crimes his gang committed. However, nothing but sheer numbneess to the suffering of the accused seems like it could explain this.
In the unlikely case the prosecutor suspects the accused of having malicious intent and manipulating events to lead to her boyfriend’s death than he should charge her with murder only and let the jury decide. Again, if justice is the goal and, assuming things happened as she claims, she shouldn’t be tried then she should get the same presumption of innocence with regard to any suggestion it was murder that we believe accused criminals deserve. Just because the prosecutor has the legal power to circumvent the presumption of innocence standard with regard to a (surely fictional) suspicion of murder doesn’t mean it is right. ↩
So I frequently run into articles like this one which aim to criticize Israel’s behavior with respect to the occupied territories but, rather than laying out a clear policy argument (or direct moral considerations) instead fall back to invoking the supposed fact that Israel’s behavior with respect to the settlements and/or occupied territory is in violation of international law. While there are any number of grounds on which to criticize Israel’s polices invoking claims of international law short circuits important discussions while misleading readers.
One might wonder why people even bother to invoke international law regarding Israel’s occupied territories. The treaties most credibly cited as outlawing Israel’s behavior aren’t ones that Israel is a signatory to (though some arguments are based in such treaties) and the ICJ lacks any jurisdiction in Israel1. Thus, whatever the status of the occupied territories and settlements they don’t raise any practical issues of treaty compliance.
Rather, I think its fair to say that in most cases people raise international law regarding Israel’s settlements and occupied territories to either somehow suggest that international law reflects the settled opinion of the global community or leverage the reader’s presumption that illegal behavior is immoral/unacceptable. However, both cases invite the reader to inappropriately transfer assumptions we make about the internal laws of nation-states to the context of treaties and the international community. While we are used to the idea that laws are non-negotiable rules whose meaning is discerned by an independent judiciary and subject to enforcement by any one of many government agents virtually all these assumptions fail when we consider treaties.
Usually treaties do not specify any authoritative interpretive body leaving the interpretation ultimately in the hands of the signatories (some modern treaties do assign such power to the ICJ but I don’t believe any are at issue here). Moreover, international law is frequently openly violated without consequence (most famously during the NATO bombing of Yugoslavia2). The fact that inconvenient international laws can simply be ignored, or at least bent, combined with the lack of any enforcement mechanism undermines one of the principle aspects of the law which justifies the moral significance we assign it: the assumption that, good or bad, it binds everyone equally. Moreover, in the absence of independent enforcement (and the ICJ is not independent) there is no pressure to ensure that international law truly reflects global norms (without any risk the rule will be enforced against you the incentives are to declare Israel’s actions legal/illegal based on whose favor you wish to curry). In short, it is misleading to use international law either as a proxy for global consensus or to imply is has the default moral warrant we give to standard laws. While many writers obviously fervently wish it were otherwise, if you want to hold forth on the issue of Israeli-Palestinian relations there simply isn’t any way to avoid diving into the contentious issue of the moral status of Israel’s actions regarding the occupied territories
Still, despite appearances to the contrary, maybe there is some genuine reason to raise the issue of international law in this context. Perhaps one sees Israel as a first step toward a more legalistic and predictable world order (though picking such a controversial and vexed issue as a kicking off point is dubious) or has some other reason to consider international law. However, to the extent one is genuinely concerned about the legal status of settlements and the occupied territories one has to treat the issues as serious legal questions. That means its not enough to observe that the 4th Geneva convention bans the occupying power from transferring parts of its population into occupied territory and claim case closed. One has to verify that, as a legal matter, the land Israel controls in the west bank is technically ‘occupied territory’ (some suggest that occupied territory refers to occupied land legitimately belonging to another country) and that ‘transfer’ encompasses merely enabling voluntary movement rather than merely forced migration. Indeed, at least one scholar (Eugene Kontorovich) has made extensive arguments claiming that most of the clauses which are purported to ban Israel’s activities in the occupied territories inapplicable and that this interpretation is supported by a variety of recent precedents.
Of course, Eugene Kontorovich is not only pretty obviously driven by ideological affinity3 and represents an extreme viewpoint in the international law community. Many of the arguments he presents as decisive have been considered and rejected by other scholars. Ultimately, I simply don’t know enough about international law to reach a conclusion on the matter. Is Kontorovich ignoring independently established interpretive norms when he makes his arguments? Is the very liberal makeup of legal academia in general and international law in particular biasing the mainstream position against Israel? Does this disagreement mask a fundamental divide over the appropriate level of precision and detail in international law? Or, as I tend to suspect, does it reveal that international law is still sufficiently subjective that supplementing a plausible argument about international law with the support of both most UN member states and the legal elites renders it valid.
In any case, I won’t try and adjudicate this controversy merely note that the issue is complex enough to warrant multiple books and that facially plausible concerns have been raised by both sides. As such, anyone genuinely considering the legality of Israeli occupation and settlements (rather than merely using this as a proxy for moral condemnation) owes readers at the very least a summary of how they take such arguments to play out. The fact that 99% of the places which raise the issue of international law with respect to Israel have absolutely no interest whatsoever in doing this is all the more reason to treat their use of international law as suspect.
The Moral Particulars
This post is not the place for a detailed analysis of the moral issues regarding the occupied territories. However, I would like to make some general remarks about the unfortunate failure modes of moral analysis regarding this issue. In particular, I think 50% of the vitriol on this issue could be avoided (or at least diminished) by giving explicit answers to the following three questions.
Whose actions are being morally evaluated (or compared to alternatives)? Why them? What, if anything, do your claims imply about the morality of actors on the other side?
What standard are you using when you condemn/praise Israeli/Palestinian actions? Are you calling people out merely for deviation from perfect saint-like willingness to turn the other check or suggesting they fall short of normal standards in western countries?
Are you merely engaged in an intellectual/social exercise or are your criticisms intended to motivate actions.
For instance, with respect to 1 a great many people in the US (and possibly Europe) seem to simply tacitly assume that Israel is within the sphere of rational actors and subject to moral suasion based on shared moral norms but make no such assumption about the Palestinians. As such, and often without making a conscious judgement, many people behave in a way that suggests an anti-Israeli bias when, in fact, they are actually exhibiting anti-Palestinian bias by unconsciously viewing them as foreign and beyond the pale of our shared moral norms. By explicitly answering this question one can recognize such implicit biases and avoid creating the unintended impression that you are drawing a moral distinction. Note that a converse effect is also common in which people go out of their way to sympathize with individual (imagined/idealized) Palestinians (who, by stipulation, do not support violence against Israelis) but make no analogous effort to empathize with individual Israelis. This has the unfortunate effect of hiding the fact that individuals on both sides are powerless to make the major changes needed and, recognizing these limitations, act rationally and relatively morally within them. Again, explicitly considering the implications for actors on the other side resolves the potential confusion.
Point 3 is simply a variant of point 1 except it guards against falsely implicating differences as a result of policy oriented criticism/encouragement, e.g., criticism aimed at one party to encourage a change in behavior must be distinguished from criticism for the purpose of attributing relative moral blameworthiness. However, I think pure ascriptions of blame are probably best avoided in any event.
Point 2 is probably the most important. It is very common to hear strident criticism of Israel based on their treatment of Palestinians. While such criticisms often acknowledge the real threat of terrorism they hold Israel to task for taking measures that affect Palestinian’s collectively, e.g., the wall and extensive security checks required to move to and from Gaza and the West Bank. While I think we all acknowledge that ideally we would treat each and every person as an individual it’s absurd to suggest that any western democracy would behave differently in the same situation. Indeed, comparing Israel’s relative restraint in dealing with terrorism to Guantanamo Bay and our extreme and unjust indefinite detention of sex offenders is instructive. This doesn’t change the fact that many Palestinians face very unpleasant conditions, often through no fault of their own, but it is important to distinguish considerations of moral luck (if Americans found themselves in Israel’s position they would probably behave even worse) from questions of moral blameworthiness.
Ultimately, the one substantive position I will take here is to condemn the way the rest of the world shoves this problem off on the Israeli’s and Palestinians and then scolds them for not doing a better job. We should recognize that the Israelis (and probably the Palestinians as well) face an insoluble collective action problem (normal political differences make strong actions to resolve the problem very difficult to initiate much less maintain). The mere fact that we don’t live there and they do doesn’t make the rest of us any less responsible for the welfare of our fellow citizens so, rather than continuing to lay into Israel for not doing more to solve the problem, those of us in the west would be better served by convincing our own governments to help. Frankly, until we have at least managed the tiny step of passing a law which authorizes substantial payments to Palestinians in exchange for giving up various regions, e.g., certain parts of Jerusalem, it is a bit rich to criticize Israel for not taking much more drastic steps that could put its citizens at risk. While the situation between Israel and Palestine may be deadlocked I honestly believe that if the rest of the world (or even just NATO possibly with an assist from China) was sufficiently dedicate to solving the problem headway would be made.
If one wants to get technical the issue is somewhat complicated but from a practical point of view Israel isn’t bound by any ICJ decision. ↩
Of course there are arguments that this wasn’t a violation of international law. However, this merely serves to illustrate the flexible nature of `international law’ and the way in which international sentiment alters, if not the fact, at least the application of international law. ↩
This isn’t grounds for dismissing his arguments but it justifies treating his work as pure advocacy and taking care to avoid assuming that neither the factual backdrop he presents nor the interpretive process he uses present the complete picture. ↩
I generally sympathize with the liberal contingent on the supreme court but I think this [defense](https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/05/26/citizens-united-media-corporations-and-other-corporations/ of Citizen’s United is right) on.
Now I’m open to arguments against Citizens United but if you are going to criticize the opinion the burden is on you to identify a good bright line rule (to prevent gradual erosion of rights) that provides newspapers and other journalism with the kind of protection we think they deserve without handing the government the ability to distinguish responsible journalists from mere non-profits/pacs/etc..
I’ve long supported Citizens United but what this post very helpfully pointed out is the extent to which every justification to restrict Citizens United style corporate speech has applied to restrictions on journalism/editorials. Cities with a single large newspaper surely had as much reason to worry about that newspaper using it’s power in a last minute attempt to sway the election than we have to worry about corporate money in politics.
Now, I agree that responsible journalists have a special role to play in the electoral process. I’m NOT worried about the New York Times doing something dastardly. However, I most certainly do not want Trump’s administration deciding who is a journalist as opposed to an advocate of some corporate interest, Yes, as the Citizens United dissent points out we sometimes adopt balancing tests for constitutional rights and we could adopt one here. But balancing tests tend to follow the political wind and if free speech is to serve as a bulwark against tyranny and patriotic group think that’s not good enough for core political speech.
Moreover, think about what would happen if Citizens United was overturned and one adopted some kind of test to distinguish media companies or genuine journalism from other corporate speech. I think the natural response to such incentives would be to further obscure whether or not you were engaged in journalism. In other words companies would cloak themselves in the trappings of a media company/genuine journalist to avail themselves of the greater free speech rights further worsening the problem of fake news. The courts would then have to either accept the trappings of media/journalism as valid on their face (encouraging such deception) or engage in a dangerous substantive investigation of whether a company counts as a `real’ journalism company.