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I recently read an article where a lawyer referred to something called "Role

I recently read an article where a lawyer referred to something called "Role Morality" in defending his behaviour (which was not especially moral). What is "Role Morality" and what school or body of philosophy does it belong to? How is it supposed to work? It seemed somewhat bogus when presented as an excuse for behaviour that would otherwise be called immoral. Maybe there's a different moral system for lawyers? Thanks.

We sometimes play certain social roles in which it is morally appropriate to disregard certain otherwise weighty considerations and to give great weight to others than one could otherwise disregard.

Examples. A trustee should try to find the best possible investments for her ward without regard to how such investments of his funds would affect the value of her own portfolio. A judge or juror should set asides her likes and dislikes of certain kinds of people. A legislator should disregard the impact pending legislation would have on her son's business. The common idea here is that important social purposes are best promoted if the occupants of certain roles understand them in these ways.

The lawyer's role is somewhat unusual because it is fitted into an adversarial system. The idea behind such a system is that the socially best outcomes are achieved when some of the protagonists do not aim for them but for something quite different. To get the most exciting soccer match, we need players focused not on making the match as exciting as possible, but players focused on winning. To get just and fair outcomes in the courtroom, we need lawyers focused not on getting just and fair outcomes, but on getting their client to win. That's the theory.

It's immediately clear that, in an adversarial system, the role players' conduct must be constrained. Players and lawyers should want to win, but not by bribing the referee or judge, and not by poisoning their opposites. Still, within these constraints, players and lawyers may fight pretty hard and one-sidedly for their own side.

The lawyers' role morality raises interesting ethical issues when a lawyer's behavior hurts not the opposing side (which, ideally at least, has its own lawyer), but innocent third parties. Thus, a lawyer's best way to get her client off the hook may be to "destroy" an elderly witness or to suggest without a shred of evidence that a rape victim is a "loose woman." Lawyers like to think that their role morality permits or even mandates such conduct on their part. But I do not think it is plausible to hold that a lawyer may or should do in her client's behalf what it would be wrong for this client to do in his own behalf. If it would be wrong for a rapist to try to get a more lenient sentence by making wholly ungrounded suggestions about the "looseness" of his victim's "sexual morals", then it would be wrong for his lawyer to make such wholly ungrounded suggestions for the same purpose.

Do you think a crime committed against a nun should carry a greater punishment

Law
Do you think a crime committed against a nun should carry a greater punishment than the same crime committed against a prostitute? Or in other words should their perceived social standing be taken into account when sentencing?

No, social standing should play no part in sentencing. Nor indeed should moral standing. We might think that the nun in question was more deserving of our sympathy than the prostitute, or we might think the reverse, but sentencing should be based on what the criminal deserves to receive, not on the qualities of the victim. On a consequentialist view of punishment we might seek to protect some social groups by punishing crimes against them disproportionately, and then there would need to be an argument as to why the effects of such a policy are particularly desirable, yet many would feel that such a policy reveals what is wrong with consequentialism in ethics, since it deviates from aligning punishment with desert.

Can it ever be legitimate to legally prohibit an action solely on the basis that

Law
Can it ever be legitimate to legally prohibit an action solely on the basis that it causes offense in a part of the population and nothing else? It is clear to me that some of these actions will be regarded as morally objectionable by almost all ethical theories. But can taboo breaking alone be sufficient to forbid something by law, or should such laws always require other justifications as well?

John Stuart Mill argued that offense to others is not a permissible ground for a legal prohibition of conduct -- "that the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient reason" (On Liberty, chapter 1). But then Mill also stretched the notion of harm in various ways so as to reaffirm prevailing prejudices about what conduct it is permissible to proscribe. To think about your question carefully, one needs to start with a sharp definition of offense which supports a clear distinction between offense and harm. (Joel Feinberg's work has a lot to offer on this score.) This is a difficult task, and it is quite likely that our linguistic intuitions about what is harm and what is mere offense are shaped by our moral intuitions about what may and may not rightfully be proscribed by the criminal law.

Here are a few examples of conduct most people in developed Western countries find deeply offensive and want to see criminalized: polygamy, pederasty, incest, necrophilia, sex with animals, eating of dead human beings, human sacrifices, physician-assisted suicide (all with the consent of all involved). In which of these cases can the majority adduce a justification for prohibition other than offense? In which of these case, in particular, can the majority plausibly claim to be harmed by the offensive conduct or claim that willing participants in this conduct are being harmed unduly (in a way not justifiable by their consent)? Such claims have been made about every one of the listed cases, and the assessment of these claims then depends on one's definition of harm as distinct from mere offense.

Is it better to have a criminal justice system that runs the risk of, in every

Is it better to have a criminal justice system that runs the risk of, in every 100 people being acquitted, that 1 will go on to commit a terrible future crime; or one that runs the risk of, in every 100 people being convicted, there being 1 who was innocent? Sorry about the tortured phrasing of my question...

Any realistic criminal justice system will make both types of error: T-errors (terrible future crime committed by one wrongly acquitted) and I-errors (innocent person wrongly convicted).

It seems morally more appropriate here to compare alternative systems feasible for the same society in terms of the total number of errors, not in terms of the ratios you focus on (ratio of T-errors to total number of acquitted, ratio of I-errors to total number of convicted). To see this, take a criminal justice system under which 100,000 are acquitted of whom 2000 are wrongly acquitted and go on to commit a terrible crime. Now suppose we modify this system so that many more innocent people are tried and properly acquitted. So now we have 200,000 acquitted of whom 2000 are wrongly acquitted and go on to commit a terrible crime. So we got the T-error rate from 2 percent down to 1 percent. But have we improved the system? Surely not.

So I rephrase your question this way: In designing our criminal justice system, should we give greater weight to avoiding T-errors or to avoiding I-errors?

There is a widely held view bearing on this question. In one famous formulation by William Blackstone (www.law.ucla.edu/volokh/guilty.htm), it says: “It is better that ten guilty persons escape than one innocent suffer.” I think what stands behind this view is the idea that we as a society bear a far weightier responsibility for harms to innocents that we directly bring about than for harms to innocents that we merely might have prevented.

This idea is familiar in pedestrian contexts. It would be wrong to kill one innocent person in order to save another. It would be wrong to harm one innocent person in order to rescue another from a similar harm. It would be wrong to risk the life of one innocent person to prevent a risk to the life of another (risks being equal). And it would be wrong to cause a risk of harm to one innocent person in order to prevent the same risk of harm to another. In all these cases, agents ought to give more weight to harms and risks of harm they directly bring about than to similar harms or risks of harm that they merely fail to prevent.

This almost answers the reformulated question: We should give greater weight to avoiding I-errors than to avoiding T-errors. I say "almost", because the average harm associated with errors of each kind may not be equal. So the conclusion might conceivably be overturned if the harm done by the average I-error is just a few days in jail without public stigma while the average harm resulting from the average T-error is a minor massacre. But this is not true in the real world. Here, in order seriously to reduce the number of terrible crimes committed by persons wrongly acquitted, we would have to make it easier to convict people accused of very serious crimes and then take those convicted out of circulation for very long periods or forever. And doing this will inevitably increase the number of innocent people who, wrongly convicted, are locked up for very long periods or even executed.

Hello,

Hello, I would like to ask a question about ethics involved when nudity is permitted in public places. I live in Sydney, Australia. At one of the most popular beaches here (which hosts tens of thousands of people per day and is freely available to anyone who wishes to go there), a man was arrested and fined $500. This was punishment because he had been on the beach with a camera, surreptitiously photographing women who were lying on the sand, with no tops on. He was discreet such that almost none knew at the time that he had photographed them - after they apprehended him, police went around with his camera, identifying people and approaching them with the images in hand. Many people using this beach choose to sunbathe disrobed, of their own free will. The man admitted that his actions were intended to further his own sexual gratification. Although I think the man's behaviour was in poor taste, using others as mere means to his own selfish ends, on consideration I cannot see why it should be held...

As a matter of prudence, I am inclined to agree with the arguments of the questioner--if one does not want others to photograph one's exposed breasts (or other body parts), one should keep them covered in public.

On the other hand, I don't think that the issue is quite as simple as this. The man who was arrested admitted that he used the photos for his own sexual gratification. But what if he was posting them on a website--perhaps for profit? I think there are somewhat thorny issues here, and do think that the most important ones have to do with legal protections of personal privacy, and where the lines get drawn on this issue. Does appearing in public mean that anyone can photograph me for any purpose whatsoever? That does seem a bit much to me! Here is another example--what do you think of the idea of a pedophile photographing children swimming or running around on a beach in the nude (as one can see in lots of places in the world)? No problem here? I guess I would caution the questioner that the obviously prudent reply that he or she provides tends to mask some important issues about whether our privacy should still be protected from various forms of intrusion even when we are in public--and I guess my own intuitions on this are somewhat mixed. Although I agree they should not be as aggressively protected as when we are in private, I don't think it becomes "open season" when we are in public, either, no matter what we are or are not wearing.

What is the relation between law and morality? Do they always go hand in hand,

What is the relation between law and morality? Do they always go hand in hand, or is there such things as immoral laws or illegal morality? Jean

Racist laws and laws concerning slaves provide examples of how legality and morality come apart. A law could make it legal to keep slaves, even if that is immoral; a law could prohibit one from helping someone of another race, even if that is morally obligatory. You can fail to do what is right without breaking any law, and breaking a law may not be immoral.

Some people are born into privileged situations and some people into poverty.

Some people are born into privileged situations and some people into poverty. Do you think that those unfortunate enough to be in the second group can sometimes be justified in resorting to crime, say civil disobedience or theft, either through frustration or necessity? And if they were to resort to crime, is it fair to judge and punish them in the same way as more privileged people who might do the same things?

Extreme contrasts of privilege and poverty are often the result of unjust social institutions such as feudalism and serfdom, for example. In such a context, people in dire poverty may well be justified in violating their society's property laws, in practicing civil disobedience, and even in overthrowing the established order, because those laws and this order lack moral standing. But even in a context of severe social injustice, it is generally not morally permissible to violate any and all laws (e.g., by killing children or by stealing from people even poorer than oneself).

Those administering and enforcing the laws in a seriously unjust society will rarely admit that these laws are seriously unjust and that some violations of them are justified. Still, they ought to reflect on the justice of the laws they apply and enforce and, if they find the justice of some of these laws to be dubious, may well conclude that they ought to punish leniently if at all. They ought also to reflect on the state of mind of the defendant and, if they find her to be motivated by a conscientious and well-founded conviction that she permissibly violated unjust laws, they may again decide on a more lenient punishment or even on acquittal. Even if incorrect, the conscientious and not unreasonable conviction that a law is unjust may be considered an excuse in mitigation of blame and punishment.

Even in a just social context, people may experience severe frustration or great need. In such a context, violating the law is generally not justifiable, but it may nonetheless be excusable in certain cases. It may be excusable, for example, for a single mother to steal a sweet or a small toy because she can ill afford to buy a holiday gift for her child. (This may be excusable to some extent even if it was her own responsibility that she ran out of money before month's end.) In such a case it would be fair to blame and punish her less, if at all, even while a similar theft by a more affluent person is blamed and punished more severely. Here, once again, the relevant difference lies in the defendant's state of mind. Such excuses are recognized in many civilized legal systems.

In light of a question about Irving and Holocaust denial [http://www.amherst.edu

Law
In light of a question about Irving and Holocaust denial [http://www.amherst.edu/askphilosophers/question/971], I wonder why free speech should be seen as an absolute principle which has no limits. It seems to me that practical wisdom dictates that in some cases for the good of society (for example, to avoid hate crimes) free speech must have certain limits. I have no idea how to determine those limits and I suspect that there isn't any formula, but perhaps you people can clarify the issue. Thanks.

Well, there is such a formula, actually, the so-called clear and present danger test. This goes back to an opinion Supreme Court Justice Oliver Wendell Holmes composed in regard to the case Schenk v. United States (1919). Schenk was general secretary of the American Socialist Party and had been convicted under the Espionage Act with inciting young men not to enlist for World War I. The Court rejected his appeal, judging, in the words of Holmes, that Schenk's "words create a clear and present danger that they will bring about substantive evils Congress has a right to prevent." Holmes likened Schenk's utterance to that of someone fortuitously shouting "fire" in a crowded theater.

Subsequent jurisprudence narrowed the test in the direction of requiring that the danger, to count as "present," must be imminent. This undermined Holmes's analogy: The cry of "fire" creates an immediate danger, while Schenk's 15,000 leaflets could not have undermined the US war effort except over a considerable time span. During this time span, American citizens would have considered the merits of Schenk's appeal and made up their minds about it, thereby engaging in precisely the kind of political deliberation the First Amendment is supposed to protect. Holmes himself was involved in tightening the test through his dissents in Abrams v. United States (1919) and in Gitlow v. New York (1925), but, though supported by Justice Brandeis, he did not convince the Court's majority. The tightening became effective when the Supreme Court overturned the convictions in Brandenburg v. Ohio (1969) and in Hess v. Indiana (1973). Whether it will survive the present "War on Terror" remains to be seen.

The philosopher John Rawls discusses and defends the test in its tightened form sympathetically in his essay "The Basic Liberties and Their Priority" (reprinted in his Political Liberalism). An important contemporary critic of the tightened test as too tight is Catherine McKinnon, who has advocated outlawing pornographic materials that create a danger of hate crimes against women (the kind of case you pose). (Here Rawls's contractualist reasoning and first priority rule may actually be more supportive of McKinnon's more permissive test than of Rawls's own defense of the tighter version. See answer to Question 160.) McKinnon's arguments, in turn, have been criticized by Ronald Dworkin.

In following and assessing this ongoing debate about the clear and present danger test, it is important to bear in mind the question is was meant to resolve -- the question, namely, what expressions it is morally permissible for the state to outlaw and to punish. This question is distinct from the question which expressions should be viewed as morally wrong. Even if expressions such as Irving's denial of the Holocaust or the Danish cartoons or descriptions of violence against women, creating no clear and imminent danger, should be legal and not punishable as crimes, this does not prejudge the correct moral judgment about them (see answer to Question 959).

In the light of the recent sentencing of David Irving, is there still a

In the light of the recent sentencing of David Irving, is there still a philosophical - and perhaps general - importance of 'free speech' and the free exchange of ideas, or must we draw limits on what can be said and how it can be said?

When it comes to the case of David Irving, I find myself in complete agreement with the NYU philosopher David Velleman, who argues on his blog that Irving's conviction and coerced confession are a disaster. Together they create the distinct impression that Irving recanted only in order to reduce his sentence. How else are we to explain his sudden change of mind? It is certainly doubtful that, since his arrest, he has come across decisive evidence of which he had previously been unaware.

This is a terrible outcome for those who want to preserve the memory of the Holocaust. As Velleman succinctly argues, "Irving's forced confession of error does more to undermine belief inthe Holocaust than his previous denials, by lending color to suspicionsthat the consensus among historians of the period is the product ofcoercion. The memory of the Holocaust can easily withstand the denialsof someone like Mr. Irving, but only if the refusal of historians toagree with him is clearly due to the force of evidence rather than theforce of law. The freedom to deny the Holocaust should therefore beprecious to anyone who wants to keep the memory alive."

This is a follow-up to question 348. Matthew Silverstein argues that "There is

This is a follow-up to question 348. Matthew Silverstein argues that "There is at least one good consequentialist reason for punishing attempted murder less severely than murder. If the two crimes are punished equally, then the law will not deter someone who has tried and failed to murder from trying again!" I guess this is plainly wrong. If someone tries twice she should be punished for two crimes, and the global penalty will be higher (perhaps two times higher). I can't see the difference between that case and the cases where someone commits two (accomplished) crimes of the same type against the same person (or, for that matter, against two different persons).

I agree that your solution works as well or better. Here are two different arguments a consequentialist might make.

(1) Suppose all attempted murders are punished equally, regardless of success, with each attempt being punished with 6 years in jail and 30% of punished attempts successful. Now consider this reform: We increase punishment for successful attempts from 6 to 13 years and decrease punishments for unsuccessful attempts from 6 to 3 years. This reform leaves constant the jail time per punished attempt (which consequentialists typically count as a negative): 13 x 30% + 3 x 70% = 6. (Obviously, the numbers here are just for illustration.) But the reform is likely to increase deterrence, because prospective murderers are going to focus more on the "successful" outcome that risks a 13 year penalty than on the (actually more likely) "unsuccessful" outcome that risks a 3 year penalty. As a result of better deterrence, fewer murder attempts are made, fewer people are murdered, and fewer years are spent in jail. (Obviously, for this argument to work, I must be right about the psychology of prospective murderers.)

(2) Whether an attempted murder succeeds or not is sometimes due to luck. But it is often correlated with features of the agent (greater relevant abilities, will power, nerve, lesser moral scruples, and so on). Therefore, those whose murder attempt succeeds tend to be more dangerous, on average, than those whose murder attempts fail. Also, given that criminals often commit further crimes, an extra year in jail for a more dangerous criminal better protects the public from repeat offenses than an extra year in jail for a less dangerous offender. It therefore makes sense to shift jail time from unsuccessful to successful attempters.

..... But, if these are good arguments, might consequentialists want to advocate that only successful attempts should be punished?

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