Other Law and Philosophy Blogs to Consider

Overlawyered (http://overlawyered.com/)

Started in 1999, this is the oldest law blog on the web today.  Its mission is as follows: To explore the “American legal system that too often turns litigation into a weapon against guilty and innocent alike, erodes individual responsibility, rewards sharp practice, enriches its participants at the public’s expense, and resists even modest efforts at reform and accountability.”  I found this blog particularly interesting because a senior fellow at the CATO Institute and the former director of the American Enterprise Institute primarily run it, and these are two think tanks of which I am very fond.

SCOTUSblog (http://www.scotusblog.com/)

As is obvious, this blog discusses recent rulings and the opinions of the Supreme Court Justices very clearly and comprehensively.  I particularly like it because even comparatively less significant cases are highlighted on this website, allowing it to serve as a great legal resource with regard to current trends in the constitutional law community.  It also has interesting “statistics” pages, commentary from legal philosophers, and a “Cases Made Simple” page for those who just want to skim the major facts of a particular case.

TheBLT: The Blog of Legal Times (http://legaltimes.typepad.com/)

The BLT is run by ALM, a provider of specialized business news and information pertaining to the law.  The blog is updated frequently, and political theorists and lobbyists write commentary pertaining to recent happenings on the hill.  This blog is largely regarded as one of the “must reads” of the legal community, and after spending considerable time on the website, I’d tend to agree.

WSJ Law Blog (http://blogs.wsj.com/law/)

The WSJ Law Blog is unique in that it presents cases and legal developments that aren’t traditionally cited by other news sources.  Because the Wall Street Journal is regarded so highly and held to a standard of journalistic integrity, this blog serves as an excellent source for those really want to stay informed about relevant developments in law.  It also discusses the financial implications of major legislation and judiciary decisions, and thus caters successfully to its target audience.

Think Tonk (http://claytonlittlejohn.blogspot.com/)

Clayton Littlejohn, a philosopher at the University of Texas at San Antonio, runs this blog.   It particularly appeals to college students interested in philosophy because the blog combines discussions of epistemology and law with funny political and cultural commentary.  Littlejohn’s writing style will definitely keep your attention, and the recent popularity of his blog speaks to this success.

Leiter Reports (http://www.leiterreports.typepad.com/)

This blog well encompasses the topics we’ve discussed over the course of the semester.  The Leiter Reports describes itself as “news and views about philosophy, the academic profession, academic freedom, and intellectual culture.”  Not surprisingly, it seems that a majority of the material on the website our directly related to law and recent developments in politics.  In fact, an entire portion of the website is dedicated solely to “legal philosophy.”  Brian Lieter, a Law Professor at the University of Chicago School of Law, runs the blog.

The Garden of Forking Paths (http://gfp.typepad.com/the_garden_of_forking_pat/)

Professional philosophers explore questions about the nature of free will and moral responsibility.  Posts on this website complement well the material we’ve discussed throughout the semester in our course, and add new and varying perspectives to discussion.  Unfortunately, the blog’s contributors have stopped posting new blogs at present, but there’s a great deal of previous posts that are fascinating to read.

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Complex Beings

In considering the question of legality and wrongful intent, I thought back to some public criminal cases of the last few years. As someone who prizes himself keenly on social media awareness, the elements of social media and the law is a fascinating topic for discussion as it is a relatively new issue. And while there are many positive aspects of social media, it’s hard to forget about scandals like the Rutgers incident in Fall 2010.

To summarize the situation, a New Jersey college student was accused of using his own personal webcam to spy on his gay roommate’s love life. Allegedly, this student recorded footage of his roommate kissing another young man and posted it to Twitter for public scrutiny. The student whose privacy had been invaded a few days later posted a suicide note via Facebook status, and then jumped off of a bridge to his death. The attorney for the student who posted the original video argued that the student did not act out of malicious or anti-gay intent, but out of immaturity. 

This is clearly a very polarizing case, and it is hard to remain without bias with regard to this particular incident. But from the most logical and apathetic part of my mind, it is hard for me to side with the student who posted the video. Now a “dumb college student” is of course entitled to his or her mistakes, but this was a clear violation of personal privacy. Not only did he record the video without asking, in a private location- but he proceeded to save it to his computer, and post it for the public to see. 

This student was found guilty on 15 out of 17 accounts he was initially charged with, and some of the tweets- which I will not repost on this blog- indicate an element of homophobia present in the case, and that was reflected in the ruling. 

Now consider an alternate outcome, where the student had accidentally left his webcam on and saved the file to his computer without knowing. And suppose the student wanted to share a video of his brother’s wedding ceremony, and unknowingly posted the wrong video. If this could be proven, how could they be compared? If he deleted the video within minutes, should he not have been spared? If he made the slightest effort for a sincere apology and empathetic support for his roommate, he would have been judged very differently in the same courtroom.

These two scenarios are significantly different, and the distinction in those outcomes stems from the intent of the wrongdoer. While not all crimes are accidental, humans are logical beings with complex desires and motivations for our actions. Everything we do on a daily basis have a purpose, and that is recognized within the legal system and why these two cases would be treated so differently.

While it is certainly not without its weaknesses, the American justice system is criticized and condemned far more than it is praised. We are lucky to have trials by juries, and a number of safeguards in our own justice system against tyranny and subjectivity, among them being precedence. 

I hold that intent is an important element of the judicial process in many different kinds of criminal cases. Two similar acts can have very different motivations, and they cannot be judged the same way. Whether precedence in similar acts is established, a trial should not be considered without intent. It acknowledges that we are human, and have capacity for desire and motivation not easily definable by a book of laws. We are complex beings, and we must not fail to forget that.

 

 

 

A World Without Moral Responsiblity?

How are moral responsibility and mental responsibility the same and why are some people not morally responsible because they are not mentally responsible? Those are the two main questions I came up with as we discussed Strawson in class. Strawson believes there is an intrinsic link between mental responsibility and moral responsibility such that without the former the latter cannot exist. Similarly Dr. Dorothy Lewis, a psychiatrist who studies serial killers and criminals, has found a link between the mental state of serial killers and moral responsibility. She, like Strawson, believes that certain people are not morally responsible for their actions.

In his ‘Basic Argument,’ Galen Strawson argues that a person needs be in a certain mental state in order to be morally responsible for their actions. He believes a person must have a mental reason for their actions and they must be mentally responsible for themselves (6). Strawson relies heavily on the mental state of a person to establish moral responsibility. Similarly, Dr. Dorothy Lewis believes that a serial killer is responsible for their actions if they experience abuse, mental illness(es), and brain damage. Only after fulfilling all three criterions, can Dr. Lewis diagnose someone as not being morally responsible for their actions. Dr. Lewis’ rationality aligns with Strawson’s idea that causa sui – cause of itself – is not possible. External forces push on a person and lead to unfortunate circumstances. Dr. Lewis states that murderers are made and not born (“Mind of A Murderer”). Their crimes are not because of them, but because of the abuses they experience and the damages they incur.

Both claim that people are not morally responsible for their actions, however, if they are not responsible them what happens to our legal system? If Ted Bundy or Jeffrey Dahmer are not morally responsible for their actions because they may have brain damage, a mental illness and a history of abuse, then who do we hold responsible for the lives they took? Our society would crumble if prosecutors decided that certain people have broken mental states and are not responsible for lives they take. The question then becomes, do those killers live freely in society since they are not prosecutable or do they go off to facilities with others who are not mentally responsible for themselves? Do we create an alternative world so they can live without moral responsibility while we continue to prosecute people here who are morally responsible? Dr. Lewis gives her three-prong test to establish moral responsibility, but what if those are not enough or too many; where do we draw the line at whom is morally responsible and who is not? No one would ever have a reason to take responsibility for their actions.

There is also a link between moral responsibility and legal responsibility. In most cases, when an action is illegal it is also immoral. What would become of our society if murder were no longer immoral for a certain section of the population, would our laws change to suit that new moral standard? Would the society have to redefine morality? If that were the case, would murder then not become a moral standard for those who are not mentally responsible? Then, would we have to open all of the prisons in the world and release those who pass these new tests to determine who is and is not morally responsible? What would become of their punishments and what punishments would the society dole out for those who are morally responsible (by the new standard)? As these questions demonstrate, the legal and moral standards of a society would have to change to incorporate this new population that is not beholden to the same legal or moral responsibilities as the rest of the world if we allow others to not be morally responsible for their actions.

Links:

http://avaxhome.ws/video/Format/documentary/BBC_Mind_Of_A_Murderer.html

Morally Responsible No More… What If?

What if Strawson is right? What if we as human beings aren’t entirely responsible for the actions we take and the consequences they bring about? Furthermore, how would society function according to a different moral code, one lacking a degree of responsibility? According to Strawson, it comes down to how we are and what we choose.

The notion that we are not morally responsible for how we act follows from the fact that we cannot be responsible for how we are: “True self-determination is impossible because it requires the actual completion of an infinite series of choices of principles of choice” (Strawson, 7). There is always a precedent; we are, in essence, “as a result of heredity and early experience” (7), and we cannot change or consciously construct these intrinsic qualities—nor are we responsible for them, for they exist outside the realm of our control.

Because responsibility is a concept so heavily engrained in everyday life, it’s hard to envision how a lack thereof would change my personal way of thinking. I can only imagine that right would be no different from wrong, matters of propriety and social conventions would cease to exist, and individuals in our society would be entirely selfish, not considering why, or how, their actions affect others. We would be entirely autonomous, but in the worst way possible.

For the legal system, a society sans moral responsibility would be one of lawful discontent. The law could not use responsibility to accuse, blame, or credit; there would no longer be a standard with which to judge causality or culpability. Thankfully, matters of choice prevail and prevent us from the impossibility of moral responsibility that Strawson so staunchly supports: “Large and small, morally significant or morally neutral, such situations of choice occur regularly in human life… They are the fundamental source of our inability to give up belief in true or ultimate moral responsibility” (10). The fact that we have the freedom to choose makes us feel responsible for the choices that we do make.

While Strawson’s argument for the impossibility of moral responsibility makes sense, a society and legal system lacking responsibility would not be conducive to a normal, productive culture. Instead, how we are and what we choose ultimately define the scope of our responsibility, an idea that even Strawson concedes to: “We tend to feel that our explicit self-conscious awareness of ourselves as agents who are able to deliberate about what to do, in situations of choice, suffices to constitute us as morally responsible” (16). Because we have the free will to make choices, the impossibility of moral responsibility that Strawson stands behind does not hold true today.

Determinism, Strict Liability and the Promotion of Legal Efficacy

Galen Strawson argues from a determinist standpoint that humans cannot ultimately be morally responsible for their actions. He proves this with what he calls the Basic Argument. Mark Kelman outlines arguments for and against strict liability. I will argue that the Basic Argument provides ground for holding all humans equally liable for criminal actions. I personally believe that humans being tried in the criminal court should not only be held equally liable, but strictly liable, as to maximize social welfare through legal efficacy.

To understand the conclusion that humans have no control or moral responsibility for their actions, we must briefly outline the premises of the argument. First, nothing can be the cause of itself. Simply, any occurrence is caused by a prior occurrence and an infinite regress ensues. Secondly, for any human to be morally responsible for his actions he must be the cause of his self. Certainly, nothing can be the cause of itself. So, no human can be morally responsible for his own actions. In real terms, every human is the product of environmental and hereditary actions. Because man can do nothing to change these factors of his early life, his moral foundation and decision-making traits are, in fact, an unchangeable work in progress. Thus, man has no way of changing himself and cannot be completely responsible for changing his future actions.

Using similar logic, what happens will happen regardless of any human will. Therefore, any law that has been and will be is, in effect, predetermined. This is not to say that we should take a nihilistic approach, for an analysis of how the legal system should proceed is necessary to its progress. Because no human can be morally responsible for any action, all humans actions, even in the instance of criminal cases, should be evaluated on the same basis- a strict liability basis.

Strict liability in law occurs when a defendant is judged based not on intent or any mental state present at the time of the action but by the action itself.

My view closely coincides with strict utilitarian deterrence theorists. They hold the view that “criminals should be punished so as to diminish the number of future criminal acts, because each of these acts would be perceived as more costly by the criminal himself and other would be criminals if punishment is imposed” (Kelman p. 1514).  The overarching purpose is to maximize the well-being of society. This concept may seem harsh, but it appears to be the most effective way of reducing crime and promoting legal efficacy. It will send a harsh message to those committing crimes, and hinder those who will ultimately contribute to those who commit crimes. 

 

Cases such as statutory rape and illegal possession of a narcotics are judged regardless of intent. A 20 year-old man who has sex with an adolescent female will be found guilty whether or not he ‘knew’ her actual age. Similarly, a man caught carrying a gram of heroin will be found guilty whether or not he ‘knew’ it was in his coat pocket. If these cases were not judged on a strict liability basis there would be too much wriggle room for the defense. It is very hard to determine the facts behind what they knew. That is, it is much more efficient to convict someone of a crime they obviously committed.

 

Cases not judges on a strict liability basis are often judges based on negligence standards. These negligence standards are loosely defined and provide arguing room for defendants seeking innocence. Judgments based on this standard take in to consideration wrongful intent and vary case by case. They therefore set little precedent and, in effect, undermine legal efficacy.

 

To further my point, consider a man who holds a bank teller at gunpoint during a bank robbery.  The bank teller has a heart attack and dies. On a strict-liability basis he will be held responsible for 1) the robbery and 2) the death of the bank teller. Although, the death of the teller might not have been his original intent, at the end of the day the death was ultimately a cause of the bank robbery. If it were not a strict liability basis, the robber could be found innocent on the charge for the teller’s death. This allows a criminal to be back on the street sooner, and the time it takes to argue the case slows down the legal process. It is timely and costly to evaluate whether or not it was his intent and ultimate fault to cause the death of the teller.

 

It is true that cases determine on a strict liability basis err on the side of the individual rather than the legal system, but when at the end of the day, it makes much more sense to judge cases on the basis on -did you or did you not break the law. This is because, as mentioned earlier, no human can be morally responsible for his actions. It speeds up the judicial process, while providing retribution for those who were blatantly wronged at the behest of a rogue agent. It promotes legal efficacy by setting a strict standard for everyone to follow and will ultimately reduce crime. 

Questioning the Role of Intent in the Judicial Process

Although in theory it’s good to account for the intent of an accused individual when deciding legal responsibility, for many cases such consideration has the potential to have adverse side effects. While I do not think that our legal system should entirely disregard the intentions of a person when deciding responsibility, I think they should be considered with much scrutiny.

Firstly, while the individual may not have intended on committing the crime, in many cases the offender may have put him or herself at risk of hurting another individual. For example, if a person accidentally ran someone over while drunk driving. They clearly did not go out with the intention of killing someone, and yet by drinking and getting behind a car wheel, they put themselves at risk of harming another person. Therefore, while this individual may not be entirely at fault, punishing such an individual could act as a deterrent to others who are considering taking such risks, regardless of their intent.

Additionally, regardless of their intentions, the consequences of the accused actions may still the be the same. For example, in the case of accidental death by shaking a baby, as we discussed in class. It is all good and well to tell the mother that you did not intend on killing their child when you were babysitting, but that is not going to do much in the way of resurrecting the baby. Thus, considering intentions may not always be fair to those effected by such a crime or action.

Finally, in cases where the intentions of the individual are unclear, a criminal could easily lie about his or her thought process in the moment of the crime. In truth, it is impossible for even the most expert judge to entirely determine the exact thoughts of the accused individual’s mind. One can only speculate about such things. While it is true that a judge could use information including a historical analysis of the person, the circumstances of the case, as well as thorough investigation of the person, the only person who will know the entire truth is the offender themselves. Thus, in some cases such a person could lie about their intentions and if there is not sufficient evidence to argue otherwise, this could lead to an incorrect verdict. Evidence, on the other hand, can never lie. Therefore, when deciding legal responsibility it is better to adhere for the most part to the concrete information at hand.

Ultimately, while a judge should consider intentions, they should not be a major factor in the final judgement process. Unless the intentions are very clear and the person had absolutely no responsibility at all, I think it is best if most judicial decisions regarding responsibility are made based on facts and concrete evidence. The individualistic nature of a persons thoughts makes intentions a very unreliable piece of evidence. Additionally, the consequences remain the same regardless of intent. Although there are cases in which a person should be excused or not punished as severely because they were very obviously unaware of their actions, these cases should be few and far between. Intent will probably always play a role if we are to have an at all sympathetic judicial process, but I believe it should be limited as much as possible.

Measuring Wrongful Intent

Wrongful intent often factors into the determination of a verdict.  While the “I didn’t mean to” cliché is at risk for being abused in a court of law, the claim is often legitimate.  The common issue with these cases, though, is determining whether or not the individual is legally responsible despite their intent.

I think that in determining wrongful intent, we must distinguish the difference between legal and moral responsibility.  Given a murder case in which violence was premeditated, but murder was not anticipated, a jury must determine the degree of responsibility for the accused.  While the defendant is certainly morally responsible for his or her actions, is he/she legally responsible for something that was not premeditated?

This question can be answered in several ways.  The first thought may be that because the accused actively sought to harm the victim, they are inherently responsible for what happens to them.  While there is no intention to kill at stake, the end result supersedes any prior intention—the basic premeditation to harm is enough to convict.  The second approach does not find the defendant guilty, as their intention to simply harm is sufficient in taking away any legal responsibility.  As opposed to using the end result at a determinant, this approach puts the defendant’s motive at the forefront.

I tend to more readily align with the first thought, as any intent at all should innately assign responsibility to the accused.  When the attacker decided to inflict harm on another, they immediately became responsible for what was to come.  As a result, I find the “I didn’t mean to” claim to carry little weight in this case.

Nonetheless, this issue applies to a variety of other cases.  Given a situation in which the accused had no negligent intent, but still committed a crime, the issue of wrongful intent must be treated differently.  In essence, a jury must thoroughly assess the character of the defendant’s intent before making a decision.  In doing so, a jury is more clearly able to assign legal responsibility.

Determining wrongful intent is, of course, a very slippery slope  Juries and judges alike must be absolute certain of intent before determining an outcome.  It is also vital to recognize whether or not the defendant is telling the truth.  If one indictment is nullified on the basis of their intent, it will set a precedent for cases to come.  More people would then seek to use this kind of defense, using a lie to set themselves up for freedom.  In understanding wrongful intent, judges and juries must be absolutely clear on the intention of the convicted, ensuring that this defense is not taken for granted.