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.
So I’ve long been skeptical about the 1st ammendment right not to be blocked on twitter by Donald Trump. It seemed to me th
e fact he was president and even talked about official policies in his tweets in no way meant his actions on his twitter account were taking in his public capacity. As Prof. Volokh points out in the link it’s is common for presidents to discuss policy, promise governmental action and even announce new programs during their stump speeches which are clearly and unequivocally understood to be made in their capacity as private individuals.
But Prof. Volokh finally convinced me on this point by observing that Trump uses white house staff to manage and post on his twitter account in ways that would be illegal if it was a political or even purely personal concern.
Nicely, this means we don’t have to worry that it will become impossible for government officials to campaign via social media. Donald Trump can have @RealDonaldTrump as his personal twitter but he then has to run it out of Trump tower or his political staff and not the white house (though he will probably be far too lazy to do that).
More broadly, rather than the harms I feared would come from either treating all presidential social media as official or unofficial we get an incentive for politicians to more carefully separate their official and personal roles.
President Trump has been blocking some Twitter users from his @RealDonaldTrump account, apparently because of their viewpoints. (The President apparently stipulated, in this lawsuit, that “[s]hortly after the Individual Plaintiffs posted the tweets …
Do We Really Respect A Nation's Soverignty When We Decide How Their Laws Should Be Understood And Enforced?
I’m rarely one to agree with Trump and disagree with Tyler Cowen but I’m inclined to think we should eliminate the Foreign Corrupt Practices Act rather than merely implement the minor changes he suggests. At a gut level I find the idea that we are imposing our norms about how law, public office etc.. should work on other countries unpalatable and at a more cerebral level feel that we shouldn’t put people in prison or even fine companies without a compelling reason to think it serves some important social good. My mind could be changed by substantial evidence this law improves the welfare in other countries but there is no apriori reason to think it will reduce, rather than increase, corruption overseas (e.g. the game theoretic aspects to providing insurance to the bribe taker that the bribe giver can’t turn them in).
If the question was whether we should help overwhelmed countries who find their anti-corruption efforts foiled by American companies wealth and global nature that would be a different matter and I support assigning DOJ resources to assist worthy local corruption prosecutions. I’d even favor a law which allowed the foreign government to request prosecution by a US court for bribery actions taken by US companies when they felt their own courts weren’t capable of doing the job. However, this law doesn’t leave the question of prosecution and appropriate sanctions to the jurisdiction where the crime took place but substitutes our American sensibilities about the badness of bribery and even the role of laws regarding bribery for local understanding.
One might object that this law is only triggered when the practice at hand is illegal under local law. That’s true, but all laws don’t mean the same thing. Imagine the UK had a law which imposed massive fines or a 10 year penalty for any UK citizen living in the states who intentionally ‘evaded’ local tax laws. Now it’s true that in the States we too regard many types of tax fraud as a bid deal….but there is a societal acceptance (perhaps a bad one) that evading state sales tax by ordering products from out of state isn’t a big deal the way cheating on income tax might be and any US enforcement of such laws will reflect that understanding but UK enforcement of a hypothetical foreign tax evasion law would not. Similar points could be made about laws with harsh penalties for consuming illegal drugs in a foreign country….often, as with decriminalization, what the laws on a country’s books say and how the society there understands the system to work don’t always agree.
In short, respecting the sovereignty1 of other states requires letting them decide on the relation between their explicitly codified law and actual enforcement/social understanding and the framework for this law seems to coopt that understanding.
Also, it’s not even clear if the net effect of this law will be to reduce bribery and corruption abroad. If, as might be expected, in corrupt countries foreign companies tend to be less corrupt than the locals the net effect of such a law might be to favor local companies that face no deterrence from the US government. As the structure of the law punishes bribes paid by US companies or the corporations they control or hire but not bribes paid by customers or local companies engaged in arms length transactions it creates an incentive for the most corrupt locals to start businesses they wouldn’t have otherwise2. Indeed, the very fact that a socially accepted system of bribery imposes a barrier that keeps US firms out of the market may even make public corruption reforms unpopular for protectionist reasons.
Finally, one needs to ask what the game theoretic effect is of a law. A really effective way to clamp down on bribery is to turn people who have given bribes into witnesses against the official (e.g. by offering them immunity in this or another case or even a reward) and often the bribe taker will be in far more jeopardy than the bribe giver potentially putting them at jeopardy of blackmail. However, add the potential for charges by the US government which the local prosecutor can’t bargain away but are unlikely to be brought at all as long as no one local rats and you have a very nice game theoretic mechanism of ensuring that your bribe giver doesn’t rat you out (threaten to report any company that bribed you to the US DOJ if you get convicted…might even be a good way of ensuring someone pays for your defense).
Whether or not any of these actually work out in the real world is anyone’s guess but that fact alone should be enough justification not to be (even potentially) handing out 20 year prison sentences. That is in addition to all the other problems of the law that Cowen notes.
Are you worried there may be corruption in the American executive branch today, yet also fearful that the tools for rooting out such malfeasance may be abused? If so, welcome to the dilemmas surrounding the Foreign Corrupt Practices Act.
Now ultimately, of course, I only believe in respect for the sovereignty of countries (or the right of self-determination) because it’s a good heuristic for positive results but it’s a pretty damn good one. Not only do attempts to intervene in foreign cultures rarely work they tend to create a good deal or resentment against whoever does the intervention. This is true whether the intervention is a direct political one or merely a cultural one such as refusing to do business in the customary way in that place and the FCPA certainly raises that possibility. Even disregarding resentment when it comes to legal regimes there is a much stronger reason to respect sovereignty: penalties imposed by a foreign potentate rarely provoke compliance or respect so drag along all the harms of law enforcement plus without the social benefits that make those costs worth paying. ↩
For instance, maybe a certain degree of bribery is expected to win contracts to supply the government with services and all local companies bidding simply pay the expected bribes. If US suppliers simply entered the market and complied with these necessary rules for doing business locally there would be little effect on corruption. On the other hand if they refuse but offer superior products at better prices there is a strong incentive for those locals who are best at greasing palms to set up a company which simply subcontracts the work to the Americans after bribing the government (without telling the Americans about the bribe) and since such a company is literally in the business of bribing and faces competitors in that buisness it is more likely to increase local corruption than if the US company had simply played along. ↩
4% Innocent Executions Is A Price Worth Paying For A Spotlight On Injustice
Since 4% of death row inmates are innocent we should keep the theoretical death penalty. I don’t want to execute anyone and ideally everyone on death row dies of old age before being executed but it’s only because of the death penalty that we have so much information about and public interest in the failings of our criminal justice system. I think that it’s only as a result of safeguards introduced because of worries about incorrect executions (DNA retesting) or fixes to forensic or legal failings that we don’t have more innocent people spending huge fractions of their lives in prison.
I don’t think being executed is much worse than life in a US prison. Given a choice between a coin flip between going free and being executed and the certainty of life in prison I’d take the coin flip. Hell, I’d take 9:1 odds. Other people’s preferences differ but I find it hard to believe that the death penalty is more than 10 times as bad as life in prison (and this is clouded by our irrationally strong drive to survive rather than a pure utility judgement) and a very small percentage of all convicts get the death penalty.
Without the death penalty there won’t be any ‘oh shit, was that guy innocent’ moment or double checks before execution. At any point the justice system will just delay or avoid reconsidering any issues and without the spotlight presented by arguments of innocence made by death penalty convicts people will just assume what’s easy to believe: our criminal justice system gets it right and the innocent are rarely convicted. If the price to pay for this is just 4% incorrect executions I think it’s worth paying.
Of course, it should be noted that the rate of innocent people being convicted will be much higher outside of death penalty cases. Inmates on death row had cases that not only went to trial but received far more scrutiny than even those non-death penalty cases that do go to trial. Personally, I wouldn’t be surprised if the true rate of people in prison for crimes they didn’t commit was as high as 10-20%
How well does the US justice system work? Given that many states still carry out the death penalty, it’s a rather significant question. Some biostatisticians have teamed up with lawyers in an attempt to provide a scientific answer to the question. Based on their figures, at least 4.1 percent of the individuals sentenced to death will eventually be exonerated.
Don't We Want More Happy Parents, Healthier Pregnancies and Genetically Advantaged Children?
Julia Galef has more from her wonderful unpopular ideas series. This one covers unpopular ideas about children and reproduction. There’s a lot of interesting ideas in there but the one I found most appealing, though unfortunately pretty unlikely to be adopted, was the suggestion that we should allow parents to ‘sell’ their newborns.
There are some obvious problems with allowing people to do this in the third world. In traditional subsistence farming contexts children may offer a net economic gain to a family particularly if given only minimal accommodations. No one wants to return to the halcyon days when we hired children out as indentured servants where unsympathetic farmers would `raise’ them in Dickensian conditions. However, in the developed world even the most neglected child is still a net economic cost so we can safely assume no one will be buying children to have someone they can extract work from without the guilt of mistreating their own offspring.
Such a policy would help many loving couples find children to adopt and I even believe there is a real benefit to removing children from the care of anyone so uninterested in them (or convinced they are unfit) that they are willing to make such a sale1.
But won’t this just result in drug addicts and other unfit parents popping out babies left and right for a bit of cash? Well maybe some college profs with oxy addictions might but babies to fund their habit but those babies would be in demand from parents who will offer them a good home (and unlike alcohol there is no analogous fetal opiate, meth or even crack syndrome). However, I suspect (but haven’t been able to find statistics on this) that the children born to street addicts already have plenty of problems finding adoptive parents. Moreover, pregnancy is a long, difficult process that its safe to assume anyone who finds it worthwhile to grow babies for sale is offering a high-value baby (good genes and health) who will be placed in a comfortable living situation.
What about the idea that it would incentivize women to choose the couple willing to pay the most for the child rather than the best family? First, I’m skeptical of the ability of birth mothers, given the lack of truly extensive interactions and their limited control over the process have any particular ability to pick good parents. Indeed, I suspect that the ability and willingness of the adopting family to pay would actually be a better indicator of the child’s future welfare than any gut level instinct. Second, when a birth mother decides between two potential families wanting to adopt the families who weren’t selected presumably still go on to adopt someone making this whole matter a wash from a social welfare perspective.
Basically, selling babies isn’t really any different than the surrogacy arrangements we are already comfortable allowing except that it no longer incentivizes people to only pretend to be willing to give the child up or to squeeze more money from the deal with a last minute change of heart. Where surrogacy arrangements incentivize the pregnant woman to divert money intended to increase the child’s health to their own pockets baby sales incentivize offering documented high quality care to maximize sale value.
Really, the only downside I can really see is just how obvious it will make our racial preferences in children. White babies will be worth way more than black ones.
In developed countries there is little reason to fear that more people would be extorted to sell their children if the practiced was legalized. One might imagine that in war torn parts of the world a market in children would give warlords the bright idea of forcing women to sell their children and give them the money. In the first world the only pressure on a woman to sell is the crappy circumstances she would be in whether or not baby sales were legal and if that induces her to make a sale I suspect everyone will be better off as a result, particularly the child. ↩
Do We Really Want To Stop Victims of Harrasment From Learning What's Being Said About THem?
I pretty much agree with everything Prof. Volokh says in this post but I would add that is is particularly disturbing and dangerous that these claims not only made it to the lawsuit stage but also that sufficiently many people in the Feminist Majority Foundation (not mainstream but not tinfoil hat nutters) thought this was worth pursuing.
Sure, demanding censorship of mean, hurtful and demeaning comments about your group or identity isn’t anything to write home about. However, what really sets this situation apart is that the demand wasn’t to punish the anonymous individuals responsible but to stop students from choosing to access an information source because it might allow them to read these awful things.
Demands for censorship in response to hurtful/mean/awful comments is nothing to write home about (from either side of the political aisle) but I think something is particularly distasteful about demanding policies that would allow all the assholes in a 5 mile radius to continue attacking, degrading, spreading hurtful gossip about and otherwise making life bad for some women on campus while barring those very women from keeping abreast about what is being said about them so they can refute malicious gossip, take threats to the police and otherwise protect themselves (reputationally and physcially).
Sure, I know those filing the suit no doubt intended to discourage people from posting such hateful and derogatory remarks in the future by eliminating the on campus audience for them. However, this line of argument could equally well be used to deny students access to a contrarian blog (say by a former student) making an extended argument that, because of innate ability differences, the schools affirmative action policy was driving reductions in academic rigor/performance. Even if the students visiting the blog were driven by simple curiosity and desire to evaluate the claims for themselves, if the continued posts were clearly motivated by the blogger’s desire to reach so many students with his message there would be an equally strong argument for barring students from accessing the site. With the predictable result that it would probably only increase the extent to which students agree with those unpopular views (the feeling that a view is being suppressed is far more alluring than poor arguments for it).
In a different context I would be far more charitable. If a private university were being asked to ban the platform I’d still oppose the suggestion but it wouldn’t really be fair to suggest the proponents would be responsible for denying victims a chance to (easily) make themselves aware of attacks against them so they can respond. After all, the advocates would be presumably be suggesting that in the particular case the benefits would outweigh the costs. However, the plaintiffs were asking the courts, an institution designed to apply predicatable precedent not case specific balancing, to rule that such an outcome was required. As such I do think its fair to point out the plaintiffs are asking for a rule which, in many of its applications, would deny the victims warning and an ability to respond without substantially reducing the torrent of hate and insults.
The fact that this resulted in a full court case with published opinion makes me worry that the argument was either plausible enough that reasonable lawyers thought it had a chance of prevailing or, perhaps more likely, those advancing the suit felt the risk of enduring such a lawsuit would discourage universities from being quite so protective of free speech in the future. Particularly so for private universities who aren’t bound by any need to comply with the first amendment.
University of Mary Washington had no obligation to “ban Yik Yak from the campus wireless network ,” because such a ban “may have exposed the university to liability under the First Amendment” (and in any case wasn’t required by Title IX or the equal protection clause.
The religious liberty challenge is pretty weak (both as a moral and legal matter). Essentially, the owner of Masterpiece Cakeshop is arguing that he shouldn’t have to comply with the same laws that everyone else does just because his religion disagrees. It used to be the case that in some situations the Supreme Court recognized a first amendment right to an exception to generally applicable laws when they conflicted with religious belief. However, in Employment Division v. Smith Scalia got rid of this nonsense. As long as a law is generally applicable and isn’t motivated by religious animus the fact that it requires you violate your religious beliefs is immaterial1. As a result Masterpiece Cakeshop really doesn’t have a leg to stand on as far as the free exercise claim goes.
The free speech arguments are a bit more hefty. There is a long ling of cases that hold the first amendment bars the government from compelling you to express views you disagree with. For instance, in Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of Boston the Supreme Court held that the first amendment protected the right of march organizers to exclude groups from their demonstration (despite contrary anti-discrimination law) when it would compromise their message, e.g., you can’t force a march against homosexuality to allow gay groups to join or a white supremacist march to include blacks. In other cases the court has held that the government can’t force students to pledge allegiance, newspapers to carry political responses for balance or PG&E to include environmental fliers in its bills.
As such, if Masterpiece Cakeshop was about the baker refusing to decorate the cake with a message they disagreed with I’m inclined to think there is a plausible argument to be made. If Masterpiece Cakeshop was willing to sell blank or generic wedding cakes to gay couples getting married there would be a strong case that requiring them to distribute messages on the cakes that they find objectionable is analogous to requiring PG&E to distribute environmental fliers it disagrees with. However, that’s not the fact patter in this case. Masterpiece Cakeshop is refusing to sell any wedding cake for a homosexual wedding.
Now there have been some heroic attempts to argue that merely providing any wedding cake at all conveys a celebratory message. However, this argument just isn’t very plausible. Certainly, wedding cakes are used as part of an event which, as a whole, sends a celebratory message but so too are the plates, silverware and chairs used at such functions. Surely no one thinks that a vendor who rents chairs for events is somehow being compelled to speak (in the way the Supreme Court has deemed unacceptable) when the law requires they deliver chairs to both gay and straight weddings. Indeed, if we accept the argument that merely because a good sold by a business will be used for an expressive purpose the sale of that good is itself expressive and thus protected from compulsion we would have to conclude that a white supremacist who owned an art supply shop had a first amendment right to refuse to sell pens to blacks as they will be used in an expressive manner (and quite likely to disapprove of white supremacy).
More broadly, there is an expressive component to all business transactions. In some sense serving black customers at a dinner expresses approval of their presence in the same dinner as whites. However, this isn’t the kind of incidental compelled expression the supreme court has identified as deserving of special protection nor should it be. When the government mandates that newspapers carry articles they disagree with the newspaper’s ability to express its desired message is seriously burdened. In contrast, when the government requires business owners to serve customers at a dinner regardless of race or sexual orientation there isn’t the same burden place on the ability of the diner owner to clearly convey his bigotry (modulo certain issues about signs2). If these brief remarks haven’t convinced you on this point I urge you to read this piece.
Alright, so Masterpiece Cakeshop deserves to lose (and almost surely will lose) at the Supreme Court. Indeed, if SCOTUS found for Masterpiece Cakeshop it would raise serious issues about the continued practical applicability of anti-discrimination laws more broadly. Many of which still address compelling needs.
However, I’m far less convinced there is any similarly compelling need for protecting homosexuals access to public accomodations like bakeries. Don’t get me wrong, I firmly believe that individuals like the owner of Masterpiece Cakeshop are deeply misguided and probably bigots3. However, such individuals are being overwhelmed by the remarkably rapid march towards greater acceptance of homosexuality.
Certainly, there are still pockets of homophobia in the country but by the time laws barring anti-homosexual discrimination in public accommodations can be enacted and have an effect in less progressive states than Colorado there will be more homosexuals than people who support discrimination against homosexuals. I don’t mean to in any way diminish just how hurtful it can be to be discriminated against but we need to balance that hurt against the burden such laws place on our freedoms. The judgement we’ve made in almost all cases is that just because something is hurtful or offensive isn’t a good enough reason to abridge people’s rights to choose whom to sell to. After all, its also quite hurtful to refuse to sell to someone because they are dumb, support abortion, or because their hipster beard looks stupid (though that may be more understandable). Those may not be quite at the same level but refusing to serve any ex-cons is closer as is any number of personal reasons for discrimination one sees in small towns.
The argument that there is a special need for public accommodation laws (as opposed to other instances of hurtful but appropriately legal behavior) stems, in the case of racial discrimination, from the claim that such discrimination is systematic, pervasive and makes it particularly difficult to dissolve bigoted attitudes. These all were, and perhaps would be again absent such laws, in the case of racial discrimination. It wasn’t just that blacks were excluded from a few venues run by marginalized bigots but systematically barred from whole classes of establishments — particularly high status establishments were power and influence get traded. The systematic exclusion of blacks from these establishments created a particularly formidable barrier to racial understanding and acceptance.
In contrast, homosexuals are only rarely discriminated against in public accommodations (I’m not suggesting that many people don’t remain closeted because of likely bigoted responses from friends and family but this is beyond governmental intervention) and usually have ample alternative venues. Those public accommodations which do discriminate against homosexuals tend to be low status enterprises run by socially marginalized assholes. The penetration of chain stores into virtually all parts of America provides high quality cheap products in a non-discriminatory fashion even in some of the most backwards regions. The opinion poll trend lines prove that even without such laws the cultural shift towards homosexual acceptance is both rapid and unstoppable. In short, virtually all the reasons for thinking that anti-discrimination laws serve a special need whose exceptional importance warrants prioritizing it over the individual freedoms of the business owner don’t seem to apply. Certainly, its awful and morally unacceptable but it doesn’t seem to be different in kind from the other awful morally unacceptable behaviors we don’t outlaw.
I certainly recognize that reasonable people can disagree on the relative value of the freedoms given to business owners as well as the substantial compliance costs, unintended harms and regulatory burdens imposed by anti-discrimination laws. However, the lack of any serious attempt to weigh the costs and benefits of such anti-discrimination laws makes me suspect that people support laws barring discrimination against homosexuals merely to signal their moral disapproval of such discrimination not based on any policy analysis.
Currently, many states as well as the federal government lack laws barring discrimination based on sexual orientation in public accommodation (hiring is a harder question IMO) so given the fact that once an anti-discrimination law is passed it is virtually impossible to ever repeal (for fear of sending the message that discrimination is acceptable) now is the time to sit down and ask whether we really want the kind of laws that lead to Masterpiece Cakeshop. If I could choose to enact such laws for a ten year period I’d probably support them but when I balance 50 or 100 years of reduced freedoms, compliance costs and unintended harms against the rapidly fading benefits I find leaning against such laws.
In short, while Masterpiece Cakeshop is clearly in the wrong from both a moral and legal perspective in the long run I fear that the well-intentioned laws that lead to this case are what we should really fear. If only there was a good way to signal our moral disapproval with sufficient strength without actually creating expensive and invasive new torts and enforcement agencies.
Of course, in some circumstances we do feel that religious groups deserve a special break on a generally applicable law such as when the law is merely a matter of enforcing some uniform standard and the costs of allowing sincere religious objection is small. For instance, the purpose of a law stipulating that city employees are barred from wearing any visible clothing besides their uniform isn’t substantially impeded by allowing Jewish employees to wear a kippah (aka yamaka) and the benefit to religious individuals pretty clearly outweighs the additional hassle of having to make individual determinations of appropriateness. Congress and state legislatures have adopted RFRA laws in a (deeply flawed) attempt to ensure that, in those cases where the societal cost is small and the individual benefit large, we make exceptions. Personally, I would prefer a legal regime that was religiously neutral and simply focused on strongly held views and applied a balancing test but that’s another conversation. ↩
As Eugene Volokh has pointed out there is a serious tension between free speech rights and anti-discrimination laws which bar vendors from expressing bigoted/sexist messages in their workplace. While being forced to serve blacks doesn’t seriously burden the owner’s freedom of expression being barred from decorating the diner with news clippings praising white supremacy, denigrating blacks and arguing for the racial inferiority of minorities does. However, this is an issue for another time. ↩
From afar animus is hard to distinguish from compassionate belief someone is making mistaken life choices combined with a desire not to encourage further mistakes. I honestly believe some very devout catholics who truly treat homosexuality as a mistake just like adultery or premarital sex fall into the second category but such people are rare. Animus is far more common. ↩
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. ↩