If you read his positions, he seems to me to take the worst elements of both political parties. He's like everything that's wrong with both views of government wrapped into one person.
He's described as generally right wing, but a moral relativist and moral skeptic. That means he believes right and wrong are relative to a situation (which invalidates the rule of law and turns it into rule of man) and moral skepticism (which means perhaps there are no moral truths or natural rights - which is frequently used as an apology for power and control). Helped set Bush Sr's antitrust policy. Opposes the right to privacy. Writes favorably of "efficient breach of contract" - that means breaking a contract if the damages are less than the losses of honoring it.
He argues that the ends justify the means vis-a-vis torture: "If torture is the only means of obtaining the information necessary to prevent the detonation of a nuclear bomb in Times Square, torture should be used—and will be used—to obtain the information. ... no one who doubts that this is the case should be in a position of responsibility." (note: I'm a firm believer that "ends justify the means" is always the route to totalitarianism and fascism, similar to how "we need to suppress free speech to protect the country" does too)
Finally, he both doesn't understand technology, and is proud to take a crazy stance on it: "Posner supported the creation of a law barring hyperlinks or paraphrasing of copyrighted material as a means to prevent what he views as free riding on newspaper journalism"
I'm generally somewhat liberal and modern - but the thing I respect most about American conservatives is that they draw strong moral stances and encourage them to be followed uniformly. Hell, they get a lot of their moral stances quite wrong in my opinion, but uniform enforcement leads to rule of law instead of rule of man. A stable, predictable, uniformly and equally enforced legal code is crucial to a healthy society. Moral relativism and moral skepticism are valuable in universities, but disastrous in courtrooms.
The author, Richard Posner, seems like an apologist for central power for any reason, and like a reasonably dangerous and bad person. So, the message deserves to be judged in its own right, but a quick understanding of the messenger might shed light on his motives.
Absolute right and wrong require a frame of reference that is unchanging, but there is no such frame of reference available to us. The most popular is that of a God, but if you're like me, you see God as a human construction too. Laws are made by Man; rule of law is rule of man.
I believe natural rights exist within the framework of particular philosophies, and that these philosophies can be useful as tools to analyse various problems and scenarios. But we have no oracle of truth that can anoint the One True Philosophy.
I believe torture is as close to an absolute wrong as you can get, and in particular, it's always a wrong when you take humans as they are presently constructed as your relative frame of reference. However, I also believe that in the extremely unlikely scenario of a bomb in Times Square and someone available for torture who can deliver the solution, that person will be tortured and the torturer should be rightly condemned. Part of the heroism of the torturer, to coin a very unpleasant phrase (due to the extreme improbability) should be to suffer the condemnation of committing torture for the rest of their natural lives. Torture should be wrong, condemned, even when it is necessary for the survival of large numbers of people.
The real problem with torture, though, is that the ends don't justify the means. The means of torture creates its own ends: it breeds disgust and hatred, causes your allies to leave you, gives succour to your enemies and helps them recruit. The torturer is the enemy whom it is just to fight; the country that condones torture deserves to be defeated.
I believe ends and means is a valid moral calculus, and in fact is the only calculus that matters. But it is not a simple calculus, because decisions made using it must be considered for their effect always and everywhere.
FWIW, I consider myself modern, liberal (in the classical sense) and in no particular way conservative.
> Absolute right and wrong require a frame of reference that is unchanging, but there is no such frame of reference available to us.
That's true, and that's why moral relativism/skepticism are useful for expanding your perception, building your personal ethics, and good for discussion. But you don't want two different judges interpreting the same laws very differently based on their philosophical structures. Some is inevitable, but the more random and persona-centric law gets, the worse off we are.
> The most popular is that of a God, but if you're like me, you see God as a human construction too.
Another common criteria is the one used for "natural rights" - natural rights are basically the list of things that everyone almost universally agrees on. People almost universally want a fair trial, the ability to speak their mind, and associate with the people they want to. If you look at the U.S. Bill of Rights, almost all of them are noncontroversially things people would want.
(Tangent: The only two that there might be significant disagreement on now are right to bear arms and rights reserved by state, but you it's easy to understand why they'd be agreed upon near universally back then, before private militias, in a era of lots of global and some tribal warfare, and when "arms" were muskets, sidearms, swords, and knives. Also they'd just broken free from an empire, they didn't want to fall under imperial control again)
> Laws are made by Man; rule of law is rule of man.
From Wikipedia: "The rule of law, also called supremacy of law, means that the law is above everyone and it applies to everyone. Whether governor or governed, rulers or ruled, no one is above the law, no one is exempted from the law, and no one can grant exemption to the application of the law."
Same article: "Likewise, Aristotle endorsed the rule of law, writing that "law should govern", and those in power should be "servants of the laws.""
That means that servants of the law enforce the law as uniformly as possible until it is changed, and the interpretation and enforcement of the law is not subject to personal philosophies and relative morals. This is not completely possible, we are human, but it's worth striving for. Relativism in a courtroom is a dangerous thing.
I'm with you on the rest of it - I'm probably not universally against torture in the case of emergencies. But if you're not very careful, soon you're torturing anyone that's got a pretty good chance of something positive happening from torturing them.
Almost by definition, torture is extralegal (outside of the law). As long as we don't have laws legitimizing torture, then the judge is advocating the authorities act outside on the law on one of the most scarring, brutal things that can be inflicted on a human being. Actually, there are laws regarding torture - it's the Geneva Convention:
" The most serious crimes are termed grave breaches, and provide a legal definition of a war crime. Grave breaches of the Third and Fourth Geneva Conventions include the following acts if committed against a person protected by the convention: willful killing, torture or inhuman treatment, including biological experiments; willfully causing great suffering or serious injury to body or health; compelling one to serve in the forces of a hostile power; and willfully depriving one of the right to a fair trial."
So we've got a judge saying publicly that for important cases, we can break international law, break the legal process, and torture (torture!) another human being who might produce a solution to the important case at hand. It would be scary if any influential American was advocating these things - the fact that it's a well-known judge is cause for even greater alarm.
I don't follow how you leap from non-absolute morality to dictatorship and otherwise capricious application of the law. I see the application of the law, its mechanics, as completely independent of morality. The actual content of the laws, yes, they are subject to conceptions of morality, but not their application - in so far as we aren't arguing the meta point of laws that govern application of laws.
Rule of law vs rule of [a] man, I see as an obsolete dichotomy in modern democracies. I think it's clear to everyone that capricious rule on whim by a single or handful of people is tyranny. I don't think you get there from moral relativism though.
As to judges interpreting law differently, well, that's unavoidable and in many ways a desirable feature of the common law system. As society changes, and views certain acts more or less harshly than others, the interpretation of various laws can change, setting precedents that become new laws indirectly. It's messy, especially when it's political, but I don't think there's an alternative. Lawyerly language as it is tries fairly hard to be unambiguous, but it's not machine code, and the law isn't as precise or as formally defined as a machine - and nor would we want it to be, since we aren't perfect enough to program it, and the world has too much ambiguity, too many unknowns - and unknowables - to produce certainty in judgements at all times.
6 comments
[ 2.8 ms ] story [ 22.5 ms ] threadhttp://en.wikipedia.org/wiki/Richard_Posner#Legal_positions
If you read his positions, he seems to me to take the worst elements of both political parties. He's like everything that's wrong with both views of government wrapped into one person.
He's described as generally right wing, but a moral relativist and moral skeptic. That means he believes right and wrong are relative to a situation (which invalidates the rule of law and turns it into rule of man) and moral skepticism (which means perhaps there are no moral truths or natural rights - which is frequently used as an apology for power and control). Helped set Bush Sr's antitrust policy. Opposes the right to privacy. Writes favorably of "efficient breach of contract" - that means breaking a contract if the damages are less than the losses of honoring it.
He argues that the ends justify the means vis-a-vis torture: "If torture is the only means of obtaining the information necessary to prevent the detonation of a nuclear bomb in Times Square, torture should be used—and will be used—to obtain the information. ... no one who doubts that this is the case should be in a position of responsibility." (note: I'm a firm believer that "ends justify the means" is always the route to totalitarianism and fascism, similar to how "we need to suppress free speech to protect the country" does too)
Finally, he both doesn't understand technology, and is proud to take a crazy stance on it: "Posner supported the creation of a law barring hyperlinks or paraphrasing of copyrighted material as a means to prevent what he views as free riding on newspaper journalism"
I'm generally somewhat liberal and modern - but the thing I respect most about American conservatives is that they draw strong moral stances and encourage them to be followed uniformly. Hell, they get a lot of their moral stances quite wrong in my opinion, but uniform enforcement leads to rule of law instead of rule of man. A stable, predictable, uniformly and equally enforced legal code is crucial to a healthy society. Moral relativism and moral skepticism are valuable in universities, but disastrous in courtrooms.
The author, Richard Posner, seems like an apologist for central power for any reason, and like a reasonably dangerous and bad person. So, the message deserves to be judged in its own right, but a quick understanding of the messenger might shed light on his motives.
I believe natural rights exist within the framework of particular philosophies, and that these philosophies can be useful as tools to analyse various problems and scenarios. But we have no oracle of truth that can anoint the One True Philosophy.
I believe torture is as close to an absolute wrong as you can get, and in particular, it's always a wrong when you take humans as they are presently constructed as your relative frame of reference. However, I also believe that in the extremely unlikely scenario of a bomb in Times Square and someone available for torture who can deliver the solution, that person will be tortured and the torturer should be rightly condemned. Part of the heroism of the torturer, to coin a very unpleasant phrase (due to the extreme improbability) should be to suffer the condemnation of committing torture for the rest of their natural lives. Torture should be wrong, condemned, even when it is necessary for the survival of large numbers of people.
The real problem with torture, though, is that the ends don't justify the means. The means of torture creates its own ends: it breeds disgust and hatred, causes your allies to leave you, gives succour to your enemies and helps them recruit. The torturer is the enemy whom it is just to fight; the country that condones torture deserves to be defeated.
I believe ends and means is a valid moral calculus, and in fact is the only calculus that matters. But it is not a simple calculus, because decisions made using it must be considered for their effect always and everywhere.
FWIW, I consider myself modern, liberal (in the classical sense) and in no particular way conservative.
That's true, and that's why moral relativism/skepticism are useful for expanding your perception, building your personal ethics, and good for discussion. But you don't want two different judges interpreting the same laws very differently based on their philosophical structures. Some is inevitable, but the more random and persona-centric law gets, the worse off we are.
> The most popular is that of a God, but if you're like me, you see God as a human construction too.
Another common criteria is the one used for "natural rights" - natural rights are basically the list of things that everyone almost universally agrees on. People almost universally want a fair trial, the ability to speak their mind, and associate with the people they want to. If you look at the U.S. Bill of Rights, almost all of them are noncontroversially things people would want.
(Tangent: The only two that there might be significant disagreement on now are right to bear arms and rights reserved by state, but you it's easy to understand why they'd be agreed upon near universally back then, before private militias, in a era of lots of global and some tribal warfare, and when "arms" were muskets, sidearms, swords, and knives. Also they'd just broken free from an empire, they didn't want to fall under imperial control again)
> Laws are made by Man; rule of law is rule of man.
From Wikipedia: "The rule of law, also called supremacy of law, means that the law is above everyone and it applies to everyone. Whether governor or governed, rulers or ruled, no one is above the law, no one is exempted from the law, and no one can grant exemption to the application of the law."
Same article: "Likewise, Aristotle endorsed the rule of law, writing that "law should govern", and those in power should be "servants of the laws.""
That means that servants of the law enforce the law as uniformly as possible until it is changed, and the interpretation and enforcement of the law is not subject to personal philosophies and relative morals. This is not completely possible, we are human, but it's worth striving for. Relativism in a courtroom is a dangerous thing.
I'm with you on the rest of it - I'm probably not universally against torture in the case of emergencies. But if you're not very careful, soon you're torturing anyone that's got a pretty good chance of something positive happening from torturing them.
Almost by definition, torture is extralegal (outside of the law). As long as we don't have laws legitimizing torture, then the judge is advocating the authorities act outside on the law on one of the most scarring, brutal things that can be inflicted on a human being. Actually, there are laws regarding torture - it's the Geneva Convention:
" The most serious crimes are termed grave breaches, and provide a legal definition of a war crime. Grave breaches of the Third and Fourth Geneva Conventions include the following acts if committed against a person protected by the convention: willful killing, torture or inhuman treatment, including biological experiments; willfully causing great suffering or serious injury to body or health; compelling one to serve in the forces of a hostile power; and willfully depriving one of the right to a fair trial."
http://en.wikipedia.org/wiki/Geneva_Conventions
So we've got a judge saying publicly that for important cases, we can break international law, break the legal process, and torture (torture!) another human being who might produce a solution to the important case at hand. It would be scary if any influential American was advocating these things - the fact that it's a well-known judge is cause for even greater alarm.
Rule of law vs rule of [a] man, I see as an obsolete dichotomy in modern democracies. I think it's clear to everyone that capricious rule on whim by a single or handful of people is tyranny. I don't think you get there from moral relativism though.
As to judges interpreting law differently, well, that's unavoidable and in many ways a desirable feature of the common law system. As society changes, and views certain acts more or less harshly than others, the interpretation of various laws can change, setting precedents that become new laws indirectly. It's messy, especially when it's political, but I don't think there's an alternative. Lawyerly language as it is tries fairly hard to be unambiguous, but it's not machine code, and the law isn't as precise or as formally defined as a machine - and nor would we want it to be, since we aren't perfect enough to program it, and the world has too much ambiguity, too many unknowns - and unknowables - to produce certainty in judgements at all times.