Today, I got confirmation from an article that the reason the President and other federal officials are not imposing a 21-day quarantine on people entering the country from ebola-stricken portions of Africa is due to a morality of self-sacrifice that I reject:
“‘It’s typical of what America does best,’ Obama said of the response team. “When others are in trouble, when disease or disaster strikes, Americans help.'”http://www.nbcnews.com/storyline/ebola-virus-outbreak/gods-work-obama-says-u-s-must-support-health-workers-n235776
The President and other federal officials believe it is my job to sacrifice my life for strangers.
I pursue my own rational self-interest, and I am only interested in the welfare of others to the extent that it promotes my own life. For instance, if I had a wife or children, I would be very interested in their welfare because it enhances my own life to have them around. I would take large risks in order to ensure their safety. The same goes for my friends. But, I am not going to willingly sit by and endanger my life, and the life of my friends and family for total strangers.
I recognize that the risk of a major ebola-outbreak in an advanced semi-capitalist economy is small given our superior medical care, but I don’t engage in self-sacrifice, even when the risk is small.
Category: Objectivism
Ayn Rand’s Philosophy
“I need wider powers!”
In her novel Atlas Shrugged, the socialist villains get together after their numerous attempts to control and plan the economy have resulted in wider and wider disasters. Rather than undoing what they have already done to cause the problem, the lead government bureaucrat, Wesley Mouch declares: “I need wider powers!” A similar spectacle could be seen today with respect to the Ebola outbreak that occurred in my home city of Dallas. It has been revealed that the second nurse from Presbyterian hospital to be infected by “patient zero” reported to the CDC that she had a slight fever. She was planning to fly by plane to Ohio, but she requested guidance from CDC on the matter. Their response was typical of a government bureaucracy:
“Vinson told the CDC her temperature was 99.5 Fahrenheit (37.5 Celsius). Since that was below the CDC’s temperature threshold of 100.4F (38C) ‘she was not told not to fly,’ the source said. The news was first reported by CNN.” http://www.reuters.com/article/2014/10/16/us-health-ebola-usa-idUSKCN0I40UE20141016
Note the double negative here. This is the kind of “weasel language” you would expect from a government bureaucrat trying to cover himself. Instead of saying: “We told her to fly,” which is what really happened, the CDC says: “she was not told not to fly,” in the hopes that they can deflect blame.
As a result this woman flew form Ohio to Dallas, while she was symptomatic. This is significant because ebola only becomes contagious when a person has begun to show symptoms, such as a fever. The CDC, whose alleged purpose is to protect the public from the spread of infectious disease told someone they knew to be symptomatic to board an airplane and fly, thereby potentially spreading the virus throughout the country.
The CDC’s response to the fact that they failed to advise this woman not to fly, which, from every indication, she would have voluntarily agreed to if they had simply asked her?:
“The Centers for Disease Control and Prevention is considering adding the names of health care workers being monitored for the Ebola virus to the government’s no-fly list…” http://www.foxnews.com/politics/2014/10/16/cdc-considers-adding-names-people-monitored-for-ebola-to-no-fly-list/
In other words, the very people that our nations hospitals are depending on to treat patients -doctors and nurses- are going to be placed on the same list as suspected terrorists and told that their right to travel is being restricted without due process of law. The issue of whether and when someone can be restricted in their liberty by virtue of having a dangerous communicable disease is a complicated issue. There may be times when it is justified -but it should never, under any circumstances, occur without that individual being given notice and a hearing in front of a judge. Yet, these people are apparently going to be arbitrarily placed on a no-fly list with no hearing at all.
The CDC’s response to their failure is to whine like the villain Wesley Mouch: “I need wider powers!”
This is the essential problem with all government. Government sets rules that are (ultimately) enforced by the barrel of a gun. The CDC bureaucrats only act if there is a rule telling them to act -which is as it should be. So, its no surprise that when this nurse was under the temperature threshold for their no-fly rule, no one at the CDC was going to “stick their neck out” and recommend that she not fly. A bureaucracy doesn’t reward incentive by its employees like a for-profit business -so there would only be “downside” if a CDC employee took initiative. Now the CDC response is to claim they need arbitrary power to put people on a no-fly list without due process of law. The real solution is to recognize that “government funded science” is a contradiction in terms, and end the CDC and income taxes so that private individuals can voluntarily work towards real solutions to the world’s problems.
On Compromising One’s Ideology “For the Good of the Country”
This is always an interesting perspective on ideas to me. (I’m being kind in the use of the word “interesting”.) This blogger speculates on what will happen if the Republicans take over the Senate in November: “Will congressional Republicans, especially in the House, want to rack up some legislative accomplishments or will they be more interested in putting their 2016 presidential candidates’ interests ahead of the country’s?” http://blogs.wsj.com/washwire/2014/09/08/would-republicans-compromise-if-they-had-a-senate-majority/
Notice how the assumption is that if you have a political ideology, in this case, the 2016 Republican presidential candidate’s ideology, which I would assume Republicans in the House agree with, then people expect you to give up that ideology in the “interest of the country”. But, presumably, the reason you hold a particular political ideology is because you think it’s implementation is for the “the interests of the country” -although even that expression is a little vague, and smacks of an implicit political collectivism in which some people’s interests are sacrificed for the interests of others. Whether the Republican ideology is, in fact, “good” is another story -and Republicans are vague and contradictory as to what their ideology consists of, exactly.
Most reporters don’t ever want to address the actual substance of an ideology, because that would take more thinking than most of them are capable of. Instead, they speak in vague generalities about “putting your country’s good ahead of your ideas” -which makes you wonder what they think political ideas, or any ideas for that matter, are good for? Ayn Rand gave some interesting commentary on precisely this point in her essay “Selfishness Without a Self”, found in Philosophy: Who Needs It: “If the politician is convinced that his ideas are right, it is the country that he would betray by compromising. If he is convinced that his opponents’ ideas are wrong, it is the country he would be harming. If he is not certain of either, then he should check his views for his own sake, not merely the country’s -because the truth or falsehood of his ideas should be of the utmost personal interest to him.”
If the above-quoted Wall Street Journal article were substantial, the writer would talk about the substance of the Republican ideology (as best as that can be discerned) and then discuss whether those ideas are right or wrong. But truth doesn’t matter to most reporters or newspaper editors.
Ashya King Case Illustrates The Evil of Socialized Medicine
The case of Ashya King seems to be in the process of cover-up by the leftist media, which simply isn’t reporting it to any significant degree. His parents took him out of the country to receive an experimental medical procedure for a brain tumor,at their own expense, that was not approved by Britain’s National Health Service, and Great Britain put out a warrant for his parent’s arrest. Under socialized medicine, some people will be denied treatment, apparently even if they are prepared to spend their own money to obtain said treatment:
“Mr King said in an earlier video posted that the family wanted to seek proton beam therapy for Ashya – a cancer treatment that the NHS would not provide.” http://www.bbc.com/news/uk-england-29009883
“Many also have ethical committees – or similar groups – that will consider individual cases when treatment options are disputed. Beyond that patients can – and have in the past – applied for a judicial review.” http://www.bbc.com/news/uk-england-29009883 (Translation from “socialism-speak”: A death panel will decide if the State thinks you are worth saving.)
The Epistemology of Originalism
The Constitution embodies certain philosophic, historical, and legal traditions. These included the Enlightenment as a cultural backdrop; the ideas of John Locke, Montesque, and Adam Smith; English legal and political systems; and the experience of the 13 original states under the Articles of Confederation.[1]
Some of the ideas and institutions embodied in the Constitution may have also been novel, such as the Supremacy Clause. This meant that questions regarding the proper sphere of the new Federal Government would not be resolved as political problems of the new Congress or of the State Legislatures, but as legal problems that a court must decide in hearing a case between private parties.[2] Interpreting the provisions of the Constitution would often ultimately lie with how Federal judges chose to interpret that document. But, how should judges go about interpreting it? By what methodology?
The meaning of key terms in the Constitution are often the subject of debate and dispute. For instance, the Second Amendment contains the words “…the right of the people to keep and bear Arms, shall not be infringed…” However, those words are prefaced by: “A well regulated Militia, being necessary to the security of a free State…”, and to the modern ear, a “militia” means something like the Army or the National Guard, and “regulated” means something like “controlled by government” or “restricted by law”. Proponents of gun control seize on the (arguably) modern meaning of these terms, and say that the Second Amendment is referring to the right to keep and bear arms as a member of the armed forces or a state’s national guard. Under this interpretation, the Second Amendment does not guarantee an individual right to keep and bear arms. It is a mere “collective right”.
Others say that this method of interpreting the Constitution is incorrect. They say that you must look to the “original public meaning” of the terms “militia” and “well regulated”, and that they meant something very different at the time they were ratified. This “originalist” interpretation of the Second Amendment holds that the Second Amendment enshrines an individual right of private citizens, unconnected to any organized military or law enforcement, to keep and bear arms, because that is how the average person at the time the Second Amendment was adopted would have understood those words.
Another example of a disputed phrase in the Constitution is the Eighth Amendment prohibition on “cruel and unusual punishments”. To a modern American, forms of punishment like flogging or the stocks would probably be considered “cruel and unusual”. Many would also argue today that the death penalty is “cruel and unusual”. The originalist says the modern understanding of those words is irrelevant. What matters is the “original public meaning” of the phrase “cruel and unusual” when it was adopted into the Constitution. The originalist notes that at the time the Eighth Amendment was penned, the stocks and flogging were common, to say nothing of the death penalty. Therefore the stocks, flogging, and the death penalty is not what is meant by “cruel and unusual punishments”.
Part of the appeal of the originalist view of Constitutional interpretation is the claim that “words mean things” and that the “Constitution means what it says”. In fact, this idea tends to be what its proponents put forward to the public as the meaning of originalism, and as the reason why more originalist judges should be appointed to the bench. An example of this “public meaning” of originalism could be seen with the editorial commentary arising around the US Supreme Court’s decision in District of Columbia v. Heller[3]. In this landmark ruling, the Court held that the Second Amendment to the US Constitution did embody an individual right to keep and bear certain firearms, under certain circumstances, subject to certain legal restrictions.
In support of the Heller decision, a noted Constitutional scholar published an Op-Ed titled: “News Flash: The Constitution Means What It Says”.[4] The author is a Professor of Constitutional Law at Georgetown Law School, so his presentation to the public of what originalism means is significant, especially the title of his Op-Ed, since it is what most people will read. The title of the Op-Ed implies: The Constitution uses specific words. Those words have a specific and definite meaning, and, implicitly, judges should follow that specific and definite meaning.
Another example of the “public face” of originalism is what current US Supreme Court Justice Antonin Scalia has said in public speeches and interviews on the subject of originalism: “‘The Constitution means what it says. You figure out what it was understood to mean when it was adopted and that’s the end of it,’ Scalia said.”[5] Justice Scalia has made the assertion that the Constitution “means what it says” on several occasions, and he asserts that this is the essence of the originalist viewpoint: “[Interviewer:] Had you already arrived at originalism as a philosophy? [Scalia:] I don’t know when I came to that view. I’ve always had it, as far as I know. Words have meaning. And their meaning doesn’t change…”[6]
Scalia clearly says that originalism stands for the proposition that “words have meaning”, and that their meaning is definite and immutable over time. But, is this what originalism actually stands for? When one begins to study the underlying reasoning being put forward by the originalists in greater detail, it is not at all clear that this method of Constitutional interpretation is necessarily consistent with the idea that “words mean things”. It may not, in fact, be the case that all originalists actually believe that concepts have a definite meaning.
Before analyzing the originalist position, it will be useful to think about the phrase “Words have meaning”. What exactly does that mean? A “word” is commonly defined as: “…a speech sound or series of speech sounds that symbolizes and communicates a meaning usu. without being divisible into smaller units capable of independent use…a written or printed character or combination of characters representing a spoken word…”[7]
Words are the symbols that represent a concept. For instance, the words “dog” in English and “perro” in Spanish both mean the same thing. They both denote the same concept. But what does the concept refer to? This points to the fact that when people say “words mean things” what they really are saying is “concepts mean things” –that concepts refer to something definite. However, if words denote concepts, then where do the concepts come from? What do the concepts refer to? In the history of philosophy, this is known as the problem of universals:
“The problem of universals is the problem of the correspondence of our intellectual concepts to things existing outside our intellect. Whereas external objects are determinate individuals, formally exclusive of all multiplicity, our concepts or mental representations offer us the realities independent of all particular determination; they are abstract and universal. The question, therefore, is to discover to what extent the concepts of the mind correspond to the things they represent; how the flower we conceive represents the flower existing in nature; in a word whether our ideas are faithful and have an objective reality.”[8]
“The issue of concepts (known as ‘the problem of universals’) is philosophy’s central issue. Since man’s knowledge is gained and held in conceptual form, the validity of man’s knowledge depends on the validity of concepts. But concepts are abstractions or universals, and everything that man perceives is particular, concrete. What is the relationship between abstractions and concretes? To what precisely do concepts refer in reality? Do they refer to something real, something that exists –or are they merely inventions of man’s mind, arbitrary constructs or loose approximations that cannot claim to represent knowledge?”[9]
Various answers have been put forward over the centuries to answer the issue of concepts. “Realism” and “nominalism” are two popular explanations for what, if anything, concepts refer to in reality. “Extreme realism” represents the view of concepts held by Plato: “According to this view there are universal entities existing in an extra-physical realm. The ideas in the mind correspond to these entities. The objects in the physical world reveal them. Thus there are universal entities both within and without the mind. Therefore, the mental entities are real.”[10]
Another version of realism is the Aristotelian version: “The ‘moderate realists,’ whose ancestor (unfortunately) is Aristotle, who hold that abstractions exist in reality, but they exist only in concretes, in the form of metaphysical essences, and that our concepts refer to these essences.”[11]
Nominalists attempt to present an alternative to the realist viewpoint:
“At the opposite extreme from this view [the extreme realism of Plato] is nominalism. Nominalism models the idea on the thing. Since the thing is particular, the idea is particular. There are no general ideas because there are no general things. What are called general ideas, or concepts, are merely names, nomina, or even noises, flatus vocis. Thus there are no universal entities either within or without the mind. Therefore, universal entities are not real, in fact they are not even fictions, for there are no such things even within the mind.”[12]
Nominalists hold that all of our ideas are only images of concretes, and that abstractions are merely ‘names’ which we give to arbitrary mental groupings of concretes.[13]
In her book “Introduction to Objectivist Epistemology”, Ayn Rand sets out an alternative explanation for concepts that is different from both Realism and Nominalism. Rand disagrees with Plato that our concepts correspond to entities that exist in some supernatural or “extra-physical” realm. In her philosophy the, “universe” means the sum total of all existence, so there can be no realm that is somehow “outside” the universe. Furthermore, all of our knowledge is based on sensory experience and reasoning from our sensory experience. No realm of “pure forms” has ever been perceived, and there is no mystical insight or “revelation”.[14] She also disagrees with the “moderate realism” of Aristotle:
“…Aristotle held that definitions refer to metaphysical essences, which exist in concretes as a special element or formative power, and he held that the process of concept-formation depends on a kind of direct intuition by which man’s mind grasps these essences and forms concepts accordingly. Aristotle regards ‘essence’ as metaphysical; Objectivism [Ayn Rand’s philosophy] regards it as epistemological.”[15]
Rand also does not claim that concepts are merely names that we give to arbitrarily grouped concretes in our minds, as the nominalists claim: “The nominalist and the conceptualist schools regard concepts as subjective, i.e., as products of man’s consciousness, unrelated to the facts of reality, as mere ‘names’ or notions arbitrarily assigned to arbitrary groupings of concretes on the ground of vague, inexplicable resemblances.”[16]
A key distinction from nominalism in Rand’s philosophy is the fact that she regards concept formation as necessary for living. In other words, the only “reason” that human beings engage in reasoning is because human life would be very difficult, if not impossible, if we didn’t: “Since everything man needs has to be discovered by his own mind and produced by his own effort, the two essentials of the method of survival proper to a rational being are: thinking and productive work.”[17]
“The virtue of Rationality means the recognition and acceptance of reason as one’s only source of knowledge, one’s only judge of values and one’s only guide to action…It means a commitment to the fullest perception of reality within one’s power and to the constant, active expansion of one’s perception, i.e., of one’s knowledge.”[18]
“Thinking requires a state of full, focused awareness. The act of focusing one’s consciousness is volitional. Man can focus his mind to a full, active, purposefully directed awareness of reality –or he can unfocus it…a consciousness able to direct the actions and provide for the survival of a human being…”[19]
For Ayn Rand, the purpose of thinking is human survival. One is considered to be “in a state of full, focused awareness” if one is purposefully directing one’s awareness of reality, and “purposeful” ultimately means aimed at the survival of a human being. Unlike the nominalists, since Rand regarded knowledge as necessary for living one’s life, it ultimately serves that purpose, and a mere random grouping of concretes in one’s mind without reference to that purpose would be self-destructive. Rand would distinguish valid concepts from invalid, or arbitrary, concepts by the fact that reality is what it is, and by the fact that human beings, an aspect of reality, also are what they are. A human being who wants to live, must do so by a specific method that is in accordance with his nature. That method of survival incudes the need to form concepts in accordance with the nature of the human mind, the nature of reality, and the thinker’s life, so that those concepts can further his life. Rand regards concepts as serving a purpose that can serve as a standard of proper concept formation, while the nominalists regard the process as purposeless, or “arbitrary”.
The actual mental process that occurs in concept formation is described in great detail in Rand’s book Introduction to Objectivist Epistemology, and it is difficult to do it justice here.[20] Rand starts out by describing something that exists, an “existent”, and the three stages that perceiving an existent undergoes during concept formation. First an existent is viewed as an “entity”, which is like a child’s awareness of things. Second, an existent is viewed as having an “identity”, which is awareness of specific particular things. A child recognizes and distinguishes a particular existent from the rest of his perceptual field, thereby perceiving its “identity”. The third stage in the mind of a human being consists of grasping relationships among entities by grasping similarities and differences of their identities. The “implicit” concept “entity” is transformed into the “implicit” concept “unit”, which is an existent regarded as a separate member of a group of 2 or more similar members.[21]
Prior to regarding existents as a separate member of a group of 2 or more similar members (as units), all that exists in the mind of the perceiver of an existent is a “percept”. “A percept is a group of sensations automatically retained and integrated by the brain of a living organism. It is the form of percepts that man grasps the evidence of his senses and apprehends reality. The base of all of man’s knowledge is the perceptual stage.”[22]
Essentially, a “percept” is like a mental image of an actual, concrete thing that one perceives, held in one’s mind. If someone recalls their favorite dog in their mind, then this is a percept (or, at least, the memory of a percept). One recalls the actual existent that one has perceived, with his particular shape, his particular color, his particular size, and numerous other characteristics as a complete whole individual –as that particulardog. Prior to becoming conceptual, very young children exist on this perceptual stage, which appears to be the highest level of consciousness held by most vertebrate animals. Eventually young children learn to abstract –to mentally separate attributes, motions, or numbers from entities.[23]
Once particular existents are viewed as units, the conceptual stage has been reached: “With the grasp of the (implicit) concept ‘unit’ man reaches the conceptual level of cognition…”[24] Rand initially defines a “concept” as a “…mental integration of 2 or more units which are isolated according to specific characteristics and united by a specific definition.”[25] The act of isolation involved is a process of abstraction. It is a selective mental focus that takes out or separates a certain aspect of reality from all others.[26] Unlike a “percept”, which is a mental image or mental representation of particular existents observed with one’s sense organs, “…the uniting involved in concept formation is not a mere sum, but an integration, i.e., a blending of the units into a single, new mental entity.”[27]
What is the role of a “word” in Ayn Rand’s description of concept formation? “Words transform concepts into (mental) entities…”[28] Language isn’t just necessary for human communication according to Ayn Rand. This can be understood by realizing that even when a person is completely alone, he still uses language in a sort of “inner monologue” within his mind as he thinks or tries to solve a problem. This “inner monologue” is typically silent, in which one imagines to hear the words one is thinking in one’s mind. But, some people even literally “talk to themselves” aloud while alone and thinking. Rand would likely say that this is because language serves the purpose of providing a perceptual concrete that can act as a symbol in one’s mind representing the concept. In order for a concept to be used as a single unit, “…the enormous sum integrated by a concept has to be given the form of a single, specific, perceptual concrete, which will differentiate it from all other concepts.”[29]
Rand gives two examples of concept formation in Chapter 2 of her book. The concept for “length” and the concept of “table”. The pattern in her description of how these two concepts are formed is essentially the same, but each example appears to be used to reveal different aspects of the process. A key aspect of that process is “measurement”, in which there is a mental isolation of a distinctive characteristic of observed entities that all have that characteristic. There is a mental differentiation of 2 or more entities from others by means of a characteristic they have in common with the entities they are mentally isolated from.[30]Measurement is the “…identification of a relationship –a quantitative relationship established by means of a standard that serves as a unit.”[31] The mental differentiation of 2 or more entities establishes a quantitative relationship by means of a standard that serves as the unit.
For instance, when forming the concept “dog”, one perceives 2 or more particular dogs and observes that they have certain characteristics, such as shape, size, and behavior, in common, which is the identification of a relationship amongst the particular dogs observed. The observed dogs are also mentally isolated from other perceived entities, such as cats, birds, and people, based on the shape, size, and behavior that they have in common with each other and that are different from the other perceived entities. Rand defines the characteristics on which units (the dogs) are differentiated from other perceived entities (like cats and birds) as the “conceptual common denominator”, which is the commensurable “…characteristic(s) reducible to a unit of measurement, by means of which man differentiates two or more existents from other existents possessing it.”[32] Birds, cats, and dogs all have some type of shape, size, and behavior, but dogs have a particular distinguishing set of characteristics that represent “…a specified category of measurements within the ‘Conceptual Common Denominator’ involved.”[33] In the case of forming the concept “table”, Rand says that the CCD is shape, which is a characteristic that tables, chairs, and sofas all have in common.[34] In the case of forming the concept “dog”, it would probably be more than just “shape”, because grasping the difference between dogs on the one hand and wolves or coyotes on the other (assuming one had perceived wolves and coyotes) would require an understanding of the size differences between those animals as well as the differences in behavior between wolves and dogs. For instance, wolves behave in a manner that is more “vicious” or “aggressive” and “predatory” than dogs, which have been bred for docility and dependence on human beings. Additionally, given the wide variety of shapes and sizes in domestic dogs, their behavior tends to set them apart as a distinct group more than those other characteristics, which tend to vary greatly. (Consider the size and shape differences between a Great Dane and a Chihuahua.)[35]
Rand says that this process of mentally isolating units, such as perceived dogs on the one hand from perceived birds and cats on the other, involves a mental process in which the units (the dogs perceived) are differentiated from others by means of a distinguishing characteristic, which are a specified category of measurements within the conceptual common demonintator[36] – which is shape, size, and behavior in the case of dogs. These distinguishing characteristics, as already stated, are something like the general “dog-like” shape of dogs (e.g. morphology, claws that do not retract, a tail, four legs), which is different from the “bird-like” shape of birds and the “cat-like” shape of cats, along with the “dog-like” behavior of dogs, such as friendliness towards humans, smelling everything, and wagging their tails when they are glad to see people, etc. Also, it should be noted that the distinguishing characteristics can exist in any quantity, but they must exist in some quantity. In other words, in the mind, the characteristic(s) is retained while “omitting” their particular measurements in the observed existents, the particular dogs that were perceived, that form the existential basis of the unit-perspective.
This brief, and hopefully accurate, summation of Rand’s position on concept formation should make it clear that when someone says “words have meaning” what the speaker means by that will depend either implicitly or explicitly on their position on the “problem of universals”. Do they believe that concepts denote pure “forms” that exist in some other realm, and are grasped by pure mystic insight as Plato did? Do they believe that the essence of a concept exists in each observed concrete instance of that concept, and is grasped by some ineffable “intuition” (the Aristotelian position)? Do they simply throw up their hands and say that it’s all just a matter of arbitrary whim as the nominalists do? Or, do they regard concepts as “…a mental integration of 2 or more units possessing the same distinguishing characteristics with their particular measurements omitted…”[37], where concepts serve a particular purpose that ultimately serves one’s survival?
Surprisingly, Justice Scalia, the premier public spokesman on originalism, seems to fall into the nominalist camp regarding the problem of universals:
“I do not suggest that Madison was saying that common-law lawmaking violated the separation of powers. He wrote in an era when the prevailing image of the common law was that of a preexisting body of rules, uniform throughout the nation (rather than different from state to state), that judges merely “discovered” rather than created. It is only in this century, with the rise of legal realism, that we came to acknowledge that judges in fact “make” the common law, and that each state has its own.”[38]
In the above quote, Scalia seems to suggest that there are only two alternatives for understanding the concept of law: The epistemological realist camp (either Platonic or Aristotelian), which is what Scalia thinks the founding fathers believed, or the “modern view”, in which the concept of law is “made”, rather than “discovered” (“legal realism”). In other words, for Scalia, the concept of law is ultimately arbitrary and purposeless. Legal concepts have no basis other than human social whim and arbitrary convention.
Furthermore, when you look at the underlying arguments in favor of originalism, they seems like arguments that a nominalist would be very comfortable with. Nominalists tend to look to social convention when determining the meaning of concepts. Since the nominalist regards concepts as just arbitrary groupings of concretes in the human mind, with no reason or purpose behind the groupings, the question of why particular concretes are grouped together arises. The nominalist will typically claim it is just a matter of social convention:
“Denying that concepts have an objective basis in the facts of reality, nominalists declare that the source of concepts is a subjective human decision: men arbitrarily select certain characteristics to serve as the basis (the “essentials”) for a classification; thereafter, they agree to apply the same term to any concretes that happen to exhibit these “essentials,” no matter how diverse these concretes are in other respects.”[39]
“Observe that, while condemning Plato’s mystic view of a concept’s meaning, the nominalists embrace the same view in a skeptic version. Condemning the essence-accident dichotomy as implicitly arbitrary, they institute an explicitly arbitrary equivalent. Condemning Plato’s “intuitive” selection of essences as a disguised subjectivism, they spurn the disguise and adopt subjectivism as their official theory…Condemning Plato’s supernaturally determined essences, they declare that essences are socially determined, thus transferring to the province of human whim what had once been the prerogative of Plato’s divine realm. The nominalists’ ‘advance’ over Plato consisted of secularizing his theory.”[40]
Originalists like Justice Scalia also tend to look to “social convention” when discussing the concept of law: “Hence the importance, to all of us, of textual meaning. How is that meaning to be determined? By convention. Neither written words nor the sounds that the written words represent have any inherent meaning. Nothing but conventions and contexts cause a symbol or sound to convey a particular idea.”[41]
Admittedly, Scalia could be saying one of two things here. It could mean that concepts are an arbitrarily grouping of percepts in the mind, based on nothing but human convention, which is nominalism. A more charitable interpretation of this quote is that Scalia simply meant that the words that concepts denote are based on nothing but convention. In other words Scalia could be saying some people refer to the concept “dog” using the English word “dog” while Spanish-speaking people refer to the same concept “dog” with the word “perro”, which is conventional, but the underlying concept has some connection to reality other than mere convention. (It is also possible that Scalia has simply never considered the distinction between words and concepts, and is confused on the issue.) However, a Platonist would not disagree that the word that denotes the concept (“dog” in English and “perro” in Spanish) is conventional. Platonism, nominalism, and any other popular theory of concepts could all agree that the word chosen (“dog” or “perro”) is conventional. The issue is whether the concept that the words denote is conventional. If all Scalia meant was that the word chosen is conventional, then no one would disagree with that assertion. That does not get to the essence of the issue, which is what does the concept refer to, and is there any other basis for it other than mere social convention? The evidence seems to suggest that Scalia is a nominalist, even if his nominalism is implicit, and he doesn’t fully recognize it.
In addition to a nominalist being comfortable with the originalist position, an originalist would not necessarily disagree with the nominalist position on the issue of concepts resting ultimately on nothing but arbitrary social whim. This is because originalists ultimately believe that judges should be restrained from overriding “the democratic process” because “democracy” tends to be their political ideal. Originalism tends to hold “majority will”, another phrase for “social convention”, as a sort of political-philosophical axiom, with no other ethical or political concepts underlying it:
“This belief in a jurisprudence of original intention also reflects a deeply rooted commitment to the idea of democracy. The Constitution represents the consent of the governed to the structures and powers of the government. The Constitution is the fundamental will of the people; that is why it is the fundamental law. To allow the courts to govern simply by what it views at the time as fair and decent is a scheme of government no longer popular; the idea of democracy has suffered.”[42]
“A concept of original intent, one that focuses on each specific provision of the Constitution rather than upon generalized values, is essential to prevent courts from invading the proper domain of democratic government.”[43]
“…the question to be decided is not whether the historically focused method is a perfect means of restraining aristocratic judicial Constitution-writing; but whether it is the best means available in an imperfect world. Or indeed, even more narrowly than that: whether it is demonstrably much better than what JUSTICE STEVENS proposes. I think it beyond all serious dispute that it is much less subjective, and intrudes much less upon the democratic process. It is less subjective because it depends upon a body of evidence susceptible of reasoned analysis rather than a varety of vague ethico-political First Principles whose combined conclusion can be found to point in any direction the judges favor…What is more, his [Justice Steven’s] approach would not eliminate, but multiply, the hard questions courts must confront, since he would not replace history with moral philosophy, but would have courts consider both…And the Court’s approach [which is Scalia’s approach in this case] intrudes less upon the democratic process because the rights it acknowledges are those established by a constitutional history formed by democratic decisions; and the rights it fails to acknowledge are left to be democratically adopted or rejected by the people, with the assurance that their decision is not subject to judicial revision…”[44]
In essence, the above passages by noted originalist jurists all reflect the idea that originalism is the method of Constitutional interpretation most consistent with the concept of “democracy” or “majorty will”. An originalist judge will only strike down legislation if it can be shown that the legislation violates “majority will”, and the only way that can be shown is if it contradicts an express clause of the Constitution. To think about it another way, the originalist believes that the Constitution, as originally enacted, represents the primary will of the people. The originalist recognizes that the Constitution was enacted by people long dead, but to him, the fact that the currently living have the power to amend the Constitution -and choose not to- means that its provisions still represents current majority will. Since the current majority could amend the Constitution, the originalist judge can safely assume that if they haven’t, then the majority does not recognize such a right.
This emphasis on the ability of the current majority to amend the Constitution to place new rights in it is why the originalist, for instance, would reject the idea that the Constitution enforces a right to an abortion. The originalist notes that there is no express provision in the Constitution granting a “right to privacy”, much less a derivative right to an abortion, as the courts have found. The originalist scoffs at the notion of judges finding “penumbras and emanations” in the Constitution, since, to his mind, the majority arbitrarily determines the scope and nature of rights in the first place, and the majority has chosen not to amend the Constitution to place a right to an abortion in the Constitution, which it could easily do if that was what it wanted.
Some will counter this originalist view by noting that judges, indirectly, are also the agents of majority will, since they are appointed by the President and confirmed by the Senate, both of which are ultimately elected by the people. The originalist does not deny this. He believes that both the legislature and judges should represent the majority will in their actions but, the originalist regards the legislature as being more likelyto represent the current views of the majority. This is because judges are appointed for life, while Congressmen and the President are constantly subject to election, and therefore represent the current views of the people on a matter. Representatives in the legislature are “directly appointed”, and are constantly subject to “dismissal” by the people via the electoral process. Therefore, the originalist reasons, since Congress and the President are more likely to represent the views of “the people”, judges should only override the decisions of Congress and the President when there is an express term in the Constitution forbidding the legislation. Furthermore, those express terms in the Constitution must be interpreted in accordance with its “original public meaning” when adopted, because the judge must assume that the current political majority would amend the Constitution if they wanted that term to mean something else, or if they wanted to enshrine new rights in the Constitution: “The most accurate spokesman for the people of each generation are the legislators that those people elect to represent them.”[45]
The originalist adopts a hierarchy with regard to Constitutional interpretation: the Constitution, as understood by the ratifiers, is supreme, because if the majority alive today didn’t agree with it, they would amend it. The legislature is then of penultimate importance –with only the Constitution’s express terms, interpreted through their “original public meaning”, limiting its power. Judges should be given the narrowest latitude because they are the farthest away from majority will. Is there some other method of interpreting the Constitution’s terms that does not rely on the arbitrary whim of judges or the arbitrary whim of majorities? Not according to Antonin Scalia. The opinion he penned in the Heller decision makes his position clear: “JUSTICE STEVENS abhors a system in which ‘majorities or powerful interest groups always get their way,’ post, at 56, but replaces it with a system in which unelected and life tenured judges always get their way.”[46]
For Scalia, there can be no reference to the facts of reality, and man’s choice to live, in order to determine what Constitutional provisions mean. It is either the whim of the majority of voters or the whim of judges, because all concepts are nothing more than a subjective human decision that serves no purpose. Human beings arbitrarily select certain characteristics to serve as the basis for a classification, and they agree to apply the same term to any concretes that happen to exhibit these “essentials”.[47]
Unfortunately, originalists do not appear to believe that the Constitution “means what it says” because most originalists probably believe that concepts have no other basis than arbitrary human convention, which they call “majority rule” or “democracy”. In reality, concepts are the products of the human mind, but if they are to be considered “valid”, then they refer to things in reality, and serve the purpose of human survival. Legal concepts like “freedom of speech” and “due process of law” serve specific purposes, and describe certain fundamental truths about man and his relationship to the universe, if he wants to live. As the fundamental charter delegating each individual’s right to the retaliatory use of physical force to a central authority, a written constitution cannot be properly interpreted without a proper epistemology, which, in turn, requires an understanding of the ultimate purpose of concepts, which is the choice to live.
*********************************
[1]Dan Lacy, The Meaning of the American Revolution, Chapter 1, “The Eighteenth Century World” and Chapter 11, “The Federal Solution”. New York: Mentor Books (1964).
[2]Id.
[3] District of Columbia v. Heller, 554 U.S. 570 (2008)
[4]Randy Barnet, “News Flash: The Constitution Means What It Says.” http://www.cato.org/publications/commentary/news-flash-constitution-means-what-it-says
[5] M. Mbugua, “Justice Scalia says ’originalism’ protects American liberty.” http://www.udel.edu/PR/UDaily/2007/apr/scalia043007.html
[6] J. Senior “In Conversation: Antonin Scalia.” http://nymag.com/news/features/antonin-scalia-2013-10/
[7]Merriam-Webster, Merriam-Webster’s Collegiate Dictionary, 11th Edition (Kindle ed.), Merriam-Webster, Inc. (2009).
[8]E.C. Moore, American Pragmatism: Peirce, James, and Dewey. New York: Columbia University Press (1961), quoting DeWulf, M. Catholic Encyclopedia, XI, “Nominalism, Realism and Conceptualism”(1909).
[9]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., “Forward to the First Edition”. New York:Meridian (1990).
[10]E.C. Moore, American Pragmatism: Peirce, James, and Dewey, Chapter 2, “Theory of Knowledge”. New York: Columbia University Press (1961).
[11]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., “Forward to the First Edition”. New York:Meridian (1990).
[12]E.C. Moore, American Pragmatism: Peirce, James, and Dewey, Chapter 2, “Theory of Knowledge”. New York: Columbia University Press (1961).
[13]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., “Forward to the First Edition”. New York:Meridian (1990).
[14]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., Chapter 5. New York:Meridian (1990).
[15]Id.
[16]Id.
[17]Ayn Rand, The Virtue of Selfishness “The Objectivist Ethics.” New York: Signet Penguin Books (1961).
[18]Id.
[19]Id.
[20]This will be, at best, a brief sketch of my best understanding of some of the key concepts set forth in Introduction to Objectivist Epistemology, and the reader should consult that book for a better and definitive presentation of Rand’s position on the matter. See: Ayn Rand, Introduction to Objectivist Epistemology 2nd Ed. New York: Meridian (1990).
[21]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., Chapter 1: Cognition and Measurement. New York:Meridian (1990).
[22]Id.
[23]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., Chapter 2, “Concept-Formation”. New York:Meridian (1990).
[24] Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., Chapter 1: “Cognition and Measurement”. New York:Meridian (1990).
[25]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., Chapter 2, “Concept-Formation”. New York:Meridian (1990).
[26]Id.
[27]Id.
[28]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., Chapter 2, “Concept-Formation”. New York:Meridian (1990).
[29]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., Chapter 2, “Concept-Formation”. New York:Meridian (1990).
[30]Ayn Rand Introduction to Objectivist Epistemology, 2nd Ed., Chapter 2, “Concept-Formation”. New York:Meridian (1990).
[31]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., Chapter 1, “Cognition and Measurement”. New York:Meridian (1990).
[32]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., Chapter 2, “Concept-Formation”. New York:Meridian (1990).
[33]Id.
[34]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., Chapter 2, “Concept-Formation”. New York:Meridian (1990).
[35]It is also seems possible that someone, given their own particular observations and life-purposes might conceptualize wolves, dogs, and coyotes together as one concept initially, and then subdivide later as the need arose. Rand discusses “borderline cases” in Chapter 7 of Introduction to Objectivist Epistemology.
[36]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., Chapter 2, “Concept-Formation”. New York:Meridian (1990).
[37]Id.
[38]Antonin Scalia and Amy Gutmann, “Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws” in A Matter of Interpretation: Federal Courts and the Law: Federal Courts and the Law (Kindle Ed.) Princeton University Press (1998).
[39]Leonard Peikoff, “The Analytic Synthetic Dichotomy.” In: Rand, A. Introduction to Objectivist Epistemology, 2nd Ed.” New York:Meridian (1990).
[40] Id.
[41]Antonin Scalia and Bryan Garner, Reading Law: The Interpretation of Legal Texts, “Preface”. St. Paul: Thompson/West Publishing (2010).
[42]“Speech Before the American Bar Association”, Washington, D.C., July 9, 1985, Attorney General Edwin Meese, III. In: Antonin Scalia, Originalism: A Quarter-Century of Debate (Kindle Ed.) Perseus Books Group (2007).
[43] “Speech at the University of San Diego Law School” November 18, 1985, Judge Robert H. Bork. In: Antonin Scalia, Originalism: A Quarter-Century of Debate (Kindle Ed.) Perseus Books Group (2007).
[44] McDonald v. Chicago, 561 US 3025 (2010), emphasis added.
[45] Section 70, “The false notion that the Living Constitution is an exception to the rule that legal texts must be given the meaning they bore when adopted”. In: Antonin Scalia and Bryan Garner, Reading Law: The Interpretation of Legal Texts, St. Paul: Thompson/West Publishing (2010).
[46] McDonald v. Chicago, 561 US 3025 (2010).
[47]Leonard Peikoff, “The Analytic Synthetic Dichotomy.” In: Rand, A. Introduction to Objectivist Epistemology, 2nd Ed. New York: Meridian (1990).
We Don’t Need Gun Control We Need a Philosophy of Individual Rights
France has extensive gun control laws. The civilian ownership of most semi-automatic firearms, handguns, and automatic firearms is prohibited. http://www.gunpolicy.org/firearms/region/france Despite this, a Muslim Jihadist was able to kill three people and wound one with an AK-47. http://www.bloomberg.com/news/2014-06-01/jewish-museum-murder-suspect-arrested-in-france-hollande-says.html
Mass shootings like this have nothing to do with the ease or difficulty of obtaining such weapons, as this killing in Belgium demonstrates, and everything to do with the existence of societies filled with people who no longer take personal responsibility for their own wellbeing and for the wellbeing of their loved ones. It is a result of a Western Culture of Individualism that is so far in decline that people join various cults and groups that advocate the subordination of individual lives and happiness to a god or a tribal group. It is a result of people who no longer use their own minds to search for the truth, but instead depend on some collective or religious authority to tell them what is right and wrong. It is a result of schools, journalists, and politicians that encourage envy and hatred of others by claiming that there is something wrong with those who do choose to pursue their individual, secular happiness in a free market system.
If too many people reject individualism and their own secular happiness in favor of some sort of collective ethnic group or afterlife, then they will violently turn on those that are not of their “tribe” or don’t worship their god, and we will see a relapse to the sort of perpetual warfare that hasn’t been seen in Europe since the Middle Ages. If too many people listen to left-leaning politicians and their politics of envy, then more mentally unstable people will find a rationalization for indulging their own feelings of envy and hatred of others with violence -such as the 2007 Virginia Tech mass-murderer who espoused his desire to kill “rich kids” in his suicide note.
The Western World doesn’t need gun control, it needs to rediscover a philosophy that advocates the pursuit of individual happiness in this life, and reason as the cardinal means of achieving that happiness. It needs governments that respect and protect individual rights to life, liberty, and the pursuit of happiness.
Carl Sagan’s “Cosmos”
I am currently watching Carl Sagan’s “Cosmos” on Netflix. I recall seeing bits and pieces of this throughout the 1980’s on PBS, but I was basically too young to follow it in great detail (I am only 38). It is a journey through intellectual history, with an emphasis on Astronomy and Physics, with a little Philosophy thrown in for good measure. I think that it is, overall, a very good series.
Episode 7, “The Backbone of Night” was an especially interesting episode since it seems to present a slightly different interpretation from how I have heard most Objectivists interpret the history of Ancient Greece, which tends to focus on Aristotle. Sagan agrees that the Ancient Greeks, especially the Ionians, were the birthplace of the scientific method of observation and experimentation. But, he goes on to say that there was another strand of thought running through Ancient Greece centered in Pythagoras, which deemphasized experimentation and observation in favor of “deduction”. (I think Sagan even used the word “deduction” to describe the Pythagoreans.) This ultimately led to a mystical world-view (or was based in a mystical world-view), which was expressed in the ideas of Plato. Interestingly, he even says that this Pythagorean worldview took reason out of the hands of the Ionian merchants and artisans –practical men concerned with ideas- and put it into the hands of the elite slaveholders, which was more consonant with the ownership of slaves. This was because the Pythagorean system emphasized the mind over the body, and “the body” was associated with the physical labor of the elite’s slaves. (I assume because the slaves would be viewed as less than fully rational manual laborers who merely used their bodies.)
Sagan then goes on to say that Plato’s ideas were basically adopted into Christianity. (Sagan hasn’t come out and said he’s an atheist, but he all but says so at various points in the series.) Sagan then essentially says that the early flowering of “expermentalism” in Ionia was suppressed by the Pythagoreans and later Plato, and that Aristotle was essentially no better than Plato. It wasn’t until the Enlightenment that the “Ionian world view” was rediscovered, or so says Sagan. What I found interesting is how much he deemphasized the philosophy of Aristotle in the episode be implying that it was just a sort of outgrowth of Plato. Possibly this is due to the fact that the Catholic Church adopted Aristotle after the Renaissance, along with the Aristotelian notion that the Earth was the center of the universe, although, in fairness, the notion that the Earth was the center of the universe predates Aristotle. This might lead most to believe that Aristotle is to blame for the troubles of Galileo, Copernicus, and various other natural philosophers near the Enlightenment era.
My understanding is that while Aristotle was a student of Plato, he was much more interested in experimentation and observation given his belief that the essences that form the basis of mental concepts exist in each concrete thing, rather than in some other realm. I am no expert in classical philosophy, but this is my general understanding. At any rate, the “Cosmos” series is extremely interesting, and I recommend that you watch it if you haven’t ever seen it.
A Note on “Christianity: Good of Bad for Mankind” February 2013 Debate at The University of Texas
I recently attended a debate titled “Christianity: Good or Bad for Mankind?”. The participants were Andrew Bernstein and Dinesh D’Souza. Bernstein argued on the side of “Christianity is bad for mankind.” Dinesh D’Souza argued on the side of “Christianity is good for mankind.” The debate was advertised with the following description: “Is Christianity the source of important truths, moral law, and man’s rights and thus profoundly good for mankind—or is it antithetical to all such values and thus profoundly bad?” https://www.theobjectivestandard.com/events/dsouza-bernstein.asp
I was glad to see the debate, and hear the arguments, especially the arguments of Dinesh D’Souza, since he can be considered a “conservative intellectual”, so his arguments presumably represent the “conservative party line”, to the extent that there is a coherent line of thinking held by most conservatives. However, I think that an important topic was not directly addressed in the debate, which tended to center around the issue of: “Does god exist?” It’s possible that the debate devolved to this issue on the assumption that if god does not exist, then Christianity is bad for mankind, and if god does exist, then Christianity is good for mankind. I had mentioned this debate to some friends, and one of them saw the question of the debate not as “Does god exist?” but as: “Is Christianity good for mankind, regardless of god’s existence?” This was also my major complaint about the direction of the debate right after I saw it. After some thinking, I think this raises a more general question, which is: What is the relationship between “the true” and “the good”, if any? Even if some of us atheists know there is no evidence for the existence of god (that it is not true), can it still be argued that belief in a supreme being is still good for mankind (that the belief is good), even if it is a sort of collective delusion?
The dictionary provides several definitions of “good”:
a. 1 a : something that is good Merriam-Webster (2009-06-12). Merriam-Webster’s Collegiate Dictionary, 11th Edition (Kindle Locations 501629-501630). Merriam-Webster, Inc.. Kindle Edition.
b. 1 b (1) : something conforming to the moral order of the universe (2) : praiseworthy character : goodness Merriam-Webster (2009-06-12). Merriam-Webster’s Collegiate Dictionary, 11th Edition (Kindle Locations 501630-501633). Merriam-Webster, Inc.. Kindle Edition.
c. 2 a : advancement of prosperity or well-being Merriam-Webster (2009-06-12). Merriam-Webster’s Collegiate Dictionary, 11th Edition (Kindle Location 501634-501636). Merriam-Webster, Inc.. Kindle Edition.
d. 2 b : something useful or beneficial Merriam-Webster (2009-06-12). Merriam-Webster’s Collegiate Dictionary, 11th Edition (Kindle Locations 501636-501638). Merriam-Webster, Inc.. Kindle Edition.
Since the assumption here is that some sort of religion is “good for mankind” regardlessof its truth, then “the good” cannot mean anything mystical or supernatural. For instance, the person arguing this position cannot claim that religion is “good for mankind” because god exists, and the only way for people to go to heaven is to live in accordance with the Bible. Someone claiming that Christianity, or religion in general, is “good for humanity” in this context is implicitly claiming that regardlessof its truth, it is good for humanity. In other words, they are claiming that even if Christianity is false, it still has purely secular benefits for mankind that make it useful. For this reason, the last dictionary definition of “good” above makes the most sense. “Good” means something that is “useful” or “beneficial” for mankind not in some other life, but in this life.
What does it mean for something to be “useful” or “beneficial”? Tangible items of technology are considered “useful” because they serve some person’s purpose. For instance, an automobile is “useful” because under the right set of circumstances, people can use it to transport themselves quickly to a particular destination. A particular scientific discovery can be useful for mankind because it allows for the creation of new technologies. For instance, discovering the Law of Universal Gravitation allowed men to calculate the trajectories of planets and satellites, and eventually to fly to the moon. The discovery of germ theory allowed men to develop methods of sanitation that improved human health. If you consider enough examples of human technology and science, you quickly recognize that something is considered “useful” or “beneficial” because it serves some purpose that men have. This applies to other areas of human knowledge as well. We study history because “those who don’t study history are doomed to repeat it”. The subject of history is “useful” or “beneficial” because it enables us not to repeat the mistakes of the past. (I also think it is useful to learn what past generations got right.)
Some knowledge can be more immediately useful than other types of knowledge. Knowledge of abstract mathematics may not have any immediate benefit, but knowledge of Calculus is useful if we want to launch artificial satellites to predict when a hurricane is going to strike a major city. But what is important to understand here is that knowledge is useful because it ultimately benefits human life. This is true because men are beings of a certain type, with a specific identity, or nature. We have mental faculties that allow us to gain knowledge by means of a certain method and this benefits our lives. Our lives are not guaranteed to us, and if we want to live, then we must take certain actions. We must gain knowledge through a specific process, and use that knowledge, if we want to live. Objectivism says that “mans life” is the ultimate standard of the good, and that individual happiness is the purpose of holding man’s life as the ultimate standard of the good. This all boils down to: if you want to live, you must take action that conforms to man’s nature and the nature of reality in general. As Francis Bacon put it: nature, to be commanded, must be obeyed.
In order to achieve one’s ultimate goal of living, one must adopt certain principles that serve as general procedures of action. For instance, if thinking is necessary in order for human beings to gain knowledge in order to enhance and maintain their lives, then that must be adopted as a habit. Furthermore, one must act on one’s thinking, since thinking alone is not sufficient to actually produce the things necessary for survival. It is not enough just to think about how you would build a shelter or find food. You must actually implement the knowledge you gain to build a house and grow crops. The facts of reality dictate what sorts of procedures are necessary. For instance, the fact that human beings are born with a certain type of mental faculty, that has a specific nature, means that they must gain knowledge in accordance with a certain method. This is called “rationality”. The fact that the material values necessary for our survival (such as food, clothing, and shelter) do not exist in nature means that we must use our minds to determine how best to create those values given the pre-existing materials found in nature, and our knowledge of how to organize those materials in a manner that is most beneficial to our needs. This is “productiveness”. The fact that human beings can choose to use physical force to deprive others of the material values that they have created means that we must determine whether individual men that we encounter are men who produce the values they need to live, or if they will try to gain values from us by force. Once this determination is made, one attempts to trade with men that produce, and one uses an appropriate amount of force to stop the men who insist on starting the use of physical force. This is called “justice”. These “habits” or “procedures of action”, such as “rationality”, “productiveness”, and “justice” are called “virtues”. “Virtue” is the act by which one gains and/or keeps the things necessary for living.
Now that “the good” is firmly established, we can turn to the question of “the true”. The dictionary defines “true” as:
Dictionary definition: 2 a (1) : being in accordance with the actual state of affairs < description> (2) : conformable to an essential reality (Merriam-Webster (2009-06-12). Merriam-Webster’s Collegiate Dictionary, 11th Edition (Kindle Locations 1230332-1230335). Merriam-Webster, Inc.. Kindle Edition.)
In other words, “the true” is: a proposition or statement that corresponds to reality. Here are two examples of true statements: “The moon is 238,857 miles away, give or take a few thousand miles.” and “Washington DC is the capitol of the United States of America.”
What is less apparent to most people is that “the good” can also be considered a form of “the true”. For instance, the virtue of justice can be defined as something like: “Judging men and treating them accordingly.” A person who uses force to gain the material values created by others is judged to be a criminal, and force is used against him to stop him. The virtue of justice embodies a number of truths about human nature and the nature of the universe. For instance, it embodies the truth that man’s survival is not guaranteed to him. It also embodies the truth that human beings have the ability to choose whether they want to live by means of reason or by means of force. All of these truths can be stated in the form of propositions, such as: “Man’s survival is not guaranteed to him.” and “Human beings have the power of choice when it comes to their actions.” The virtues of rationality and productiveness similarly embody certain truths, and I leave it to the reader to think these through. [1]
In addition to “the good” being a form of “the true”, it also appears to me now that if we want to live, then our knowledge of truth must affect our actions, vis-à-vis the aspects of reality that the truth recognizes. Several instances of true propositions should make this clear:
“If it is true that Washington DC is the capitol of the United States, then if I want to visit Congress, I must travel to Washington DC.”[2]
“If it is true that all men are mortal, then I cannot waste my life on things that aren’t important to me.”
“If it is true that someone is a financial genius, then I want him to manage my stock portfolio.”
“If it is true that human beings must take certain actions to live, and if it is true that the use of physical force will prevent them from taking those actions, then we must create means of stopping the use of physical force in that manner.”
It does appear that there can be true statements for individual human beings that do not affect their actions, but it is only because given their particular purposes and situation, they never deal with the aspects of reality that the true proposition recognizes. For instance, the statement: “The moon is 238,857 miles away (give or take a few thousand miles)” is a statement that is true, but knowledge of that fact for some people might not be used for anything because they don’t deal with those facts in their own lives. However, if it is a true statement, and I want to build a rocket to the moon, then I will take it into consideration when doing my math calculations. Saying ” vis-à-vis the aspects of reality that the truth recognizes” means I may know that it is true that the moon is approximately 238,857 miles away, but for my purposes, that knowledge never affects my actions because I am not in the space program and I am not an astronomer.
The fact that if we want to live, then our knowledge of truth must affect our actions, vis-à-vis the aspects of reality that the truth recognizes, can also be understood by considering what would happen if one were to act on what one knew to be a false proposition. The proposition: “I can fly merely by flapping my naked arms.” is false. If I were to act on that proposition, despite my knowledge of its falsity, I would fail to gain the values necessary for survival. If I tried to commute to work every day by such a method, my goal would be frustrated, and my life would be endangered.[3]
An implication of the fact that our knowledge of truth must affect our actions is that the expressed propositions of others, where those others have provided no evidence of their truth, should be disregarded, and should not affect one’s actions. The “onus of proof” says that the person making the assertion has the burden of proof. This makes sense because the assertion of a proposition by another person, if accepted as true by the listener, would affect that listener’s actions vis-à-vis the facts that it allegedly corresponds to. So before the listener changes his actions, he needs to have evidence presented that the assertion is true -that it does in fact correspond to reality. Otherwise, acting on such an assertion could be disastrous for the listener if it does not correspond to reality.[4]
Some might argue at this point that even if religion has no actual connection to reality, some of the moral principles it endorses are true because they can be tied to some purely naturalistic, and secular facts of reality. For instance, Christianity says that stealing is against the Ten Commandments. I agree that taking the property of others without their consent is generally wrong, absent some extraordinary emergency and assuming you can recompense them later. The problem is that these “commandments” do not give you any reasons for why you should follow them, other than a non-existent being who said that you should. (Additionally, some of the commandments are just plain wrong in almost any conceivable situation –such as “remembering the Sabbath day”.)
For this reason, there is no way to connect these principles to the facts of reality. Without such a connection to the facts of reality, you cannot know if a particular scenario might make the principle inapplicable because the factual situation is so unusual. For instance, if you are stranded outdoors during a freak blizzard, and you break into an abandoned cabin and eat the owners food, with the intent to recompense the owner later, then you have not actually committed an immoral act. This is because the purpose of morality is to provide you with a guide to how to live successfully here on Earth. A moral principle that would counsel your own destruction has no connection to the purpose of morality, to man’s nature as a living organism, or to the laws of nature. Morality is not a suicide pact.
A Christian might respond to my hypothetical blizzard scenario by saying that the commandment only says you cannot “steal” and this is not “stealing”. But, at that point, he is looking at the facts and attempting to tie the moral principle to man’s nature and the nature of reality, so this just proves my point. Respect for the private property of others is a principle that you follow -if you want to live. It has a basis in reality and man’s nature. You cannot even develop concepts like “theft” and “private property” without having some rudimentary understanding of human nature and the fact that human beings must produce the goods necessary for their survival, and be able to benefit from those goods. So, the Christian commandment “though shall not steal” cannot even be understood without some understanding of man’s nature and of the natural world. Some people think that morality is not possible without religion. Somewhat the opposite is actually true. Religious morality is unintelligible without some reference to reality, man’s nature, and the fact that people must choose to live by choosing to act in accordance with reality.
I suspect that Christian apologists like Dinesh D’Souza will claim that most people are too irrational or stupid to understand a reasoned argument for why they should follow naturalistic moral principles if they want to live. Others have made similar arguments before. For instance, Alexis de Tocqueville said:
“None but minds singularly free from the ordinary anxieties of life—minds at once penetrating, subtle, and trained by thinking—can even with the assistance of much time and care, sound the depth of these most necessary truths. And, indeed, we see that these philosophers are themselves almost always enshrouded in uncertainties; that at every step the natural light which illuminates their path grows dimmer and less secure; and that, in spite of all their efforts, they have as yet only discovered a small number of conflicting notions, on which the mind of man has been tossed about for thousands of years, without either laying a firmer grasp on truth, or finding novelty even in its errors. Studies of this nature are far above the average capacity of men; and even if the majority of mankind were capable of such pursuits, it is evident that leisure to cultivate them would still be wanting. Fixed ideas of God and human nature are indispensable to the daily practice of men’s lives; but the practice of their lives prevents them from acquiring such ideas…General ideas respecting God and human nature are therefore the ideas above all others which it is most suitable to withdraw from the habitual action of private judgment, and in which there is most to gain and least to lose by recognizing a principle of authority.”( Alexis de Tocqueville, Democracy in America, Volume II, Chapter V: Of The Manner In Which Religion In The United States Avails Itself Of Democratic Tendencies, emphasis added, http://www.gutenberg.org/files/816/816-h/816-h.htm#link2HCH0005, last accessed on 2-22-2013.)
In other words, de Tocqueville thought that the majority of the human race was incapable of understanding morality on anything but religious grounds. In fact, de Tocqueville thought that human beings were inherently “dogmatic”. (Id.)[5] For religionists like de Tocqueville to make this (likely erroneous) condemnation of mankind exhibits stunning shamelessness. In the history of ideas religion has been the single greatest contributor to genuine dogmatism and irrationality. Anyone who claims that people are too stupid or irrational to understand morality without an appeal to superstition is responsible for helping to perpetuate that irrationality by supporting religion. Grasping the truth –by conforming your ideas to reality- is necessary for life. Evading it only leads to destruction.
[1] This same notion is expressed in “Fact and Value” by Leonard Peikoff: “Cognition apart from evaluation is purposeless; it becomes the arbitrary desire for ‘pure knowledge’ as an end in itself. Evaluation apart from cognition is non-objective; it becomes the whim of pursuing an ‘I wish’ not based on any ‘It is.’”
[2] Note that even “man-made facts”, such as the fact that Washington DC is the capitol of the United States, necessitate certain actions. Although DC might not always be the capital of the United States, it currently is, so you wouldn’t go to New York if you wanted to visit Congress. Man-made facts could be otherwise because they depend on human choices. If we want to deal with other men, which is useful for living, we have to recognize their capacity to make such choices, and act accordingly. However, it is even possible that the moon could someday be further away from or closer to the Earth than it currently is due to naturalistic forces or due to human technology, so this is really no different in terms of it being true that the moon is currently a certain distance away -allowing for slight variations due to its current orbital location.
[3] The only example I could think of where believing something to be true even though it is false might gain you something of value was a complicated scenario involving believing that a girl likes you, even though the facts seem to indicate otherwise. Then you keep trying to court her, and eventually she comes around to liking you. But, I don’t even think this is an example of this. I don’t think it is actually productive to pretend that she likes you in this situation. You would be better served by recognizing that she doesn’t currently like you, but you also must have some evidence that she doesn’t really know you, and if she got to know the “real you”, then she would like you. So, you are being persistent because you think that she will change her opinion of you once she comes to understand your true character. (It’s also possible that you think the girl is just a weak-willed fool that you can eventually cajole into liking you, but why would you want to be with such a woman long-term? Assuming you just want to sleep with her, then it would make more sense to just recognize that she is a fool and target your flattery to appeal to her neuroses. So it would still be better to recognize the truth in achieving your goal of seduction.)
[4]A note on “Agnosticism” is appropriate here: “Agnosticism” is not taking a position on the issue of the existence of god. This is the same as saying: Those who make claims without proof are the same as those who only make claims they can prove. Which is the same as saying: Truth doesn’t matter. Which is the same as saying: Living doesn’t require action in conformity with reality.
[5] He basically blurred the distinction between concepts like “dogmatism”, “trust”, and “credibility”. I also think he failed to see a distinction between accepting the word of a scientist who can give us proof of why atoms exist, despite the fact that we cannot perceive them, and a priest who claims god exists and that no such proof is necessary or even possible. The difference here is clear. The scientist can provide proof for any that want to understand, while the priest demands acceptance without proof. The scientist fears that he will not be understood, while the priest fears that he will be understood. (See Alexis de Tocqueville, Democracy in America, Volume II, Chapter II: Of The Principal Source Of Belief Among Democratic Nations,http://www.gutenberg.org/files/816/816-h/816-h.htm#link2HCH0002)
Legal Paternalism
Few people seem prepared to say that they are in favor of totalitarian ideologies like Communism or Fascism today. Most people are typically in favor of “some controls”, or “some limitations on freedom”. There can be different reasons why someone advocates a “middle of the road approach” when it comes to the choice between a purely free society and totalitarianism. One reason that I have heard repeatedly in response to my advocacy of freedom in the economic and personal realms is that what I believe is “overly idealistic” and that it will not “work” because not everyone is as rational as I am. In essence, the allegation is that a capitalistic, free society is impossible because there are people who need to be “protected from themselves”.
The first thing to note about this critique of capitalism is that it assumes that a proponent of capitalism is primarily concerned with the welfare of others, rather than his own rational self-interest. If the proponent of capitalism is also an egoist, then his primary concern is his own welfare. However, a genuine egoist can be concerned with the welfare of others to the extent that living in a free social environment promotes his own self-interest. The more other people act in their own rational self-interests, the better it is for the rational egoist. It means there are more people who work and produce, which increases opportunities for trade and the gaining of new knowledge.
It is also clear there are currently people who are not 100% rational in all situations, and the rational egoist has selfish reasons for wanting them to be more rational. However, laws aimed at “protecting people from themselves” do not promote rational behavior by the people living under such laws. In fact, such laws tend to discourage rational thinking and action in the general population, thereby creating a vicious cycle in which such laws discourage rational thought, thereby creating the impression that more laws are necessary. The end result of this would have to be either: the original restrictions are discarded, or eventual totalitarianism.
What does it mean for a law to be aimed at “protecting people from themselves”? As mentioned, some adults are not completely rational. This means that they do not consistently recognize or act on what is in their self-interest. There are people who continue to inject heroin despite the fact that it does not serve their long-term self-interest. There are people who stay in abusive relationships. There are people who purchase bogus cure-alls from “snake-oil salesmen”, even though they have no rational basis for believing that the product works. There are people who go to palm-readers and fortunetellers, and make major life decisions based on the word of con artists. All of these actions are typically going to be irrational. Why are all of these actions considered “irrational”?
The previous examples all involve actions that do not serve a particular goal or purpose. The heroin addict continues to use, despite the fact that his actions harm his health. His action is not considered “rational” because it does not serve the end of good health. The people who purchase bogus cure-alls from the snake-oil salesman want good health, but the means they have chosen do not serve that goal. So, the money and time that they have spent are wasted. The people who go to fortunetellers are wasting their money since no one can predict the future by means of some sort of mystic insight. No such mystic insight exists. The goal, good decisions about what course of action they should take, is not served by the means they have chosen. They would be better served by observing the facts for themselves, deciding what their goals are and how best to achieve them in light of the facts, and then making a decision based on those evaluations. Rationality, which is a proper exercise of the mind, involves evaluating the facts in order to determine how best to serve a particular goal or purpose. It is in reference to a goal or purpose that certain actions are considered “rational”, and others are not.
A high school student who wants to get into college is considered “rational” if he studies hard and goes to class. A high school student who wants to go to college, but spends every night at parties, and never attends class would generally be considered, other things equal, “irrational”. With enough examples of “rational” and “irrational” actions by people, it quickly becomes apparent that “rationality” is that which serves the end of promoting the actor’s life and wellbeing. Actions are judged “rational” or “irrational” to the extent that they serve that ultimate objective. Rationality is not primarily a “quality” that some people magically have while others don’t, but a choice to actively used one’s mind to serve certain purposes and achieve certain goals. Rationality is a mental state that must be cultivated by focusing one’s mind, objectively appraising the facts, and thinking about how best to achieve a goal in light of the facts.
A few clarifications about rationality should be noted before going on. “Rationality” is not the same thing as one’s degree or level of knowledge. A person with a minimal education can be completely rational, if they use the knowledge that they have available to them to think about how best to achieve their long-term survival, and act on that knowledge. To the extent that a rational person is ignorant about an important subject, he will attempt to gain the knowledge he needs to live successfully. “Rationality” is also not the same thing as “intelligence”. Intelligence is the speed or ease with which one is able to think, not whether one choses to think. The fact that one is rational also does not guarantee long-term survival, no matter what. Factors beyond one’s control can cause failure despite rationality. Rationality is a necessary, but not a sufficient, condition of long-term success. Most of the time, a rational person will succeed, but that doesn’t mean he can’t be randomly struck by lightning or a tornado and killed, despite his best efforts to avoid it.
It would also be virtually impossible to be totally irrational, since it would likely lead to instantaneous death. People who are beyond a certain threshold of irrationality are typically referred to as “insane”, and are usually dependent on the charity of others, or the state, to be kept alive. Some people are also irrational in some areas of their lives, but they are able to “compartmentalize” their irrationality, at least in the short term. People who seek guidance from fortune tellers may have jobs where they generally work hard, and use their minds, and they only seek the advice of fortune tellers regarding their personal relationships. In their work lives, they have a goal of career success, and they use means that tend to achieve that goal, but in their personal lives, they are dependent on the word of a mystic, and that dependence will not tend towards long-term success in that area of their lives.
It is also important to remember that when it comes to thinking, your mind is like a muscle. The more you exercise it, the better you get at it. There is probably a strong connection between rationality and intelligence for this reason. The more you think logically and rationally, the more you develop a habit of doing so. Similarly, the more you choose to be mentally lazy, or are otherwise discouraged from thinking, the more difficult it is to exercise your thinking faculties in the future.
In philosophy of law, the notion of protecting people from themselves is commonly referred to as “legal paternalism”. Most actual statutes have numerous, possibly conflicting, justifications. Legal paternalism may not be the only rationale for a particular law, but one category typically justified on the grounds of legal paternalism are “consumer protection” statutes. These statutes will restrict freedom of contract in some manner on the grounds that the consumer is too irrational to be left free to decide for himself. In law, a “contract” is an agreement between two or more people to exchange a value for another value. The values involved in a contract are generally either material goods or some sort of service used in the production of goods. There is usually a time element involved in a contract, where one party may provide a good or service prior to the other party providing what they have promised in exchange. Consumer protection laws include laws that restrict the sale of medical drugs that have not been approved by a government organization as safe or effective. In the United States, the government organization that approves drugs is the Food and Drug Administration.
The consumption of most medical drugs involves a certain degree of risk. Even a drug that is approved by the FDA may have unknown side effects for certain people. Certain drugs are also safe for some people, but are unsafe when taken by other people, in other situations. In general, the concept of “safety” is nothing more than an acceptable degree of risk in relation to the rewards and expenses involved, because every action one takes involves a certain degree of risk. Legal paternalism in the area of drugs is the attitude that some people are not rational enough to make a decision about the risks of a particular drug. If left free to do so, some people might take drugs that would kill or seriously injure them, or at least spend money on drugs that any reasonable person would know to be ineffective. Since all drugs involve risk, proponents of legal paternalism are saying some people would refuse to weigh the risks and benefits of a particular drug, and make a rational decision about whether to take it. The Drug Enforcement Agency also occasionally justifies its activities on the grounds of legal paternalism: “The DEA represents the unspoken interests of tens of thousands of victims harmed or killed each year by prescription drug abuse.” (Letter to the Editor, Wall Street Journal, April 1, 2012, by Peter Bensinger, who served as administrator of the U.S. Drug Enforcement Administration from 1976-1981, and Robert L. DuPont, M.D., who was the first director of the National Institute on Drug Abuse from 1973-1978)
Most advocates of legal paternalism in the area of drugs will combine their argument that “most people are too irrational” with the argument that “most people are too ignorant”. They fail to make a distinction between irrationality on the one hand, and a mere lack of knowledge on the other. In other words, proponents of drug-approval laws might also say that most people lack the knowledge to make a decision on which drugs to take. It is true that most people do not lack the knowledge to know which drugs to take when they have a medical condition. Most medical decisions are made with the assistance of expert legal advice, such as a doctor. However, if there truly is a lack of knowledge on the part of the general public about this issue, then private certification companies could certify certain drugs as safe and effective. People with insufficient knowledge could then base their decision on which drugs to take on whether a certification company with a good reputation had approved the drug. At its best, all the FDA does is certify that certain drugs are safe and effective. The staff at the FDA are, in the best case, appointed by members of Congress who have no medical backgrounds themselves. The members of Congress also rely on the medical reputation of FDA personnel when deciding to appoint them. Since members of Congress are “appointed” by the voting public, the FDA represents, in the best case, nothing more than an organization that most people in the voting population regard as reputable when it comes to designating certain drugs as safe and effective. (I say “in the best case” because most political appointments usually involve “political pull” and personal friendships, rather than which appointee is the best person for the job.) Since the FDA is, at best, based on nothing more than reputation in the medical community, there is no reason why private companies could not perform this certification function to solve the problem of lack of knowledge by the general public.
This leaves advocates of legal paternalism with the “people are irrational” argument, since the “people are ignorant” argument can be solved more effectively through a voluntary free market system. However, governmental force reduces the incentive to think about which drugs consumers should take, since their choices have been reduced to the government-approved drugs. The benefit of thinking and learning about whether one should take drugs that haven’t been approved by the FDA is greatly reduced, since even if one comes to the conclusion that such drugs are best for a particular situation, none of us are free to obtain and use those drugs. As was mentioned, whether a particular drug is right for you turns on your particular circumstances, and certain people may be more willing to take a greater risk, particularly if they have nothing to loose. This has been the case for people with certain types of serious cancer who sued the FDA for refusing to allow them take experimental chemotherapy drugs, even though they had a high probability of dying from cancer anyway. The appeals court in that case said that such people had no right to take the drugs, even though the drugs might save their lives. (“Court Rejects the Right to Use Drugs Being Tested”, New York Times, August 8, 2007) Part of thinking involves making decisions about what level of risk you are prepared to take in order to obtain a goal. The ultimate goal to be obtained by thinking is the maintenance of one’s life. Restrictions on people’s freedom leaves them less able to obtain that goal, and thereby emasculates the need for thought.
It is probably true that if left free to do so, there would be some people who would take drugs that are harmful to their health, or who would spend money on drugs that have no benefit. This happens today, even with prohibition. People have free will, so it is possible that some people will choose not to use their minds on this particular topic, and will suffer the consequences. It is entirely possible that some people could even loose their lives as a result. But, restricting the freedom of the population as a whole in this area just to protect a small number of people from themselves has consequences too. It destroys the need for thought in this area, thereby reducing the incentives in favor of thinking. This in turn means that everyone will be less incentivized to think, and therefore more likely to depend on the state to make choices for them. The few people who choose to be irrational regarding what drugs they take harm primarily themselves. Restricting freedom in this area to protect these people sacrifices the people who do choose to think.
Another area of legal paternalism in the United States, and the rest of the world, is in the area of purchasing stock in corporations on secondary exchange markets like the New York Stock Exchange. Prior to stock being sold on such exchanges, they must be approved by government agencies like the Securities and Exchange Commission. Many of the principles discussed above regarding the FDA apply here too. In both the case of consuming medical drugs and purchasing securities, there is a risk associated with it. The consumer must educate himself regarding the risks and benefits, and then decide whether, for his particular circumstances, the benefits outweigh the risks.
Just as with other statutes, legal paternalism isn’t the only justification for securities and exchange laws. Just as some will argue that they are primarily trying to project the mostly rational public from dishonest drug companies, so too will some people argue that the securities and exchange laws are aimed at protecting rational people from fraudsters. This is not an argument based in legal paternalism, but involves attempting to protect rational people from the bad actions of others. However, fraud was already illegal long before the existence of state and federal securities laws. A fraud involves a lie to exchange, money, goods or services with another, when the goods or services provided to the victim are not as the fraudster claimed. The fraudster holds the other person’s valuables and refuses to give them back, or he holds the other person’s valuables sufficiently long enough to prevent them from using them for other purposes. An example of fraud in the area of securities and exchange would be if a person sells stock in a corporation that he claims to be solvent and profitable when he knows for a fact that the corporation is actually bankrupt. A “pump and dump” scheme is likely fraudulent because the seller of the stock is falsely claiming that the company is more profitable than it actually is, or that it will become more profitable than the facts would suggest –even taking into account the possibility of risk. All fraud should be illegal and that is all the “consumer protection” that is needed to protect rational people.
Just because fraud is prevented under capitalism does not mean that people who choose to invest will never loose their money. All investing, by its very nature, is risky. Much, if not all, of the profit from investing is associated with the fact that you are deferring consumption in favor of the production of future goods or services. It is possible, due to factors beyond anyone’s control or knowledge at the time, that an investment will not pay off, and the deferred consumption will be wasted. If someone invests in a farm, it is possible that there will be a massive hurricane that destroys the crops. If someone invests in a company with a new product, it is possible that consumers will prefer some other company’s product better, and that the company will not succeed. Risk is not just inherent in investing. Risk is a fact of life, and it is impossible to live entirely risk-free. So long as the seller of a stock does not make claims about the stock that he knows to be false, or actively conceal the facts from a buyer, the legal principle of caveat emptor (“buyer beware”) should apply.
By adopting the legal principle of caveat emptor, people are encouraged to think carefully about the risks associated with investing, and not to invest money that they can’t afford to risk. Caveat emptor encourages thought in the area of investing and money. If the government restricts certain types of investments as “too risky for any rational person to make”, then it is discouraging people from thinking about what investments they should make (if any). It discourages people from learning basic economics and business principles, and from thinking about which investments are sound. It also discourages people from thinking about how much risk makes sense for them, given their particular situation. Furthermore, it discourages those who do want to think extensively about investing, and are willing to take extra risks in exchange for greater potential rewards, from doing so.
This principle -that legal paternalism in the realm of economics and trade tends to discourage thought, and thereby create the apparent need for more legal paternalism- has applicability outside of areas besides economics and trade. The proponents of legal restrictions on “pornography” and “obscenity” often couch their arguments in terms of legal paternalism. This justification for restrictions on “obscenity” goes back at least a hundred years. In 1868, a British court promulgated what has become known as the “Hicklin rule”:
“I think the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall. Now, with regard to this work, it is quite certain that it would suggest to the minds of the young of either sex, or even to persons of more advanced years, thoughts of a most impure and libidinous character...” (Regina v. Hicklin, L.R. 3 Q.B. 360 (1868). Court of the Queen’s Bench.)
In that case, the court noted that even adults (“…persons of more advanced years…”) could have their minds “deprived and corrupted” by certain types of material. (In the Hicklin case, it was a restriction on certain material meant to mock the Catholic Church.) This is essentially an argument based in legal paternalism, since the aim of the restriction is not to protect “society” or “others”, but to protect the people who would otherwise choose to read such material.
In 20th Century America, legal paternalism has also been used by the courts as one of the justifications for legal restrictions against certain types of “obscenity”. In 1973, the United States Supreme Court decided Paris Adult Theater I v. Slaton. The case involved the State of Georgia prohibiting two “adult” movie theaters from showing films that depicted sexual conduct. While legal paternalism was not the only reason the Court upheld the prohibition, the opinion in that case was at least partially based in the notion of legal paternalism:
“If we accept the unprovable assumption that a complete education requires the reading of certain books…and the well nigh universal belief that good books, plays, and art lift the spirit, improve the mind, enrich the human personality, and develop character, can we then say that a state legislature may not act on the corollary assumption that commerce in obscene books, or public exhibitions focused on obscene conduct, have a tendency to exert a corrupting and debasing impact leading to antisocial behavior?” (Paris Adult Theater I v. Slaton, 413 U.S. 49 (1973).)
In other words, the Court said that since it is widely assumed that encouraging the reading of Shakespeare and other classic works of literature makes one a better person, then it is just as easy to believe that viewing films with strong sexual content would lead a person’s mind to be, in some sense, damaged or “debased” by the experience. The Court went on to note that just as the states have “blue sky laws”, which prevent the “gullible” from making bad investments, “for their own good”, so too can the states have laws that prohibit obscenity in order to protect the “weak” and the “gullible”:
“Most exercises of individual free choice—those in politics, religion, and expression of ideas—are explicitly protected by the Constitution. Totally unlimited play for free will, however, is not allowed in our or any other society. We have just noted, for example, that neither the First Amendment nor ‘free will’ precludes States from having ‘blue sky’ laws to regulate what sellers of securities may write or publish about their wares…Such laws are to protect the weak, the uninformed, the unsuspecting, and the gullible from the exercise of their own volition.” (Id.)
In other words, the Court said that laws prohibiting obscenity are necessary, at least in part, to “protect people from themselves”, because such works can “debase” or “corrupt” their minds. Both the Hicklin case and Paris Adult Theater share a common attitude. It is the idea that certain material, when read or viewed, will have a tendency to cause some sort of mental or psychological injury to the viewer. Although some people seem to have sufficient “will power” to overcome the “corrupting influence” of that material, other people do not seem to have the “will power”, and it will damage their minds.
There does seem to be some evidence that certain types of books, movies, or magazines can have a negative impact on some people’s minds and wellbeing. Some people do seem to become “desensitized” by viewing excessive amounts hardcore pornography. They become incapable of having a normal sex life. There are articles that report on some men having become “addicted to pornography” to such an extent that they became temporarily impotent with actual women. “Lots of guys, 20s or so, can’t get it up anymore with a real girl, and they all relate having a serious porn/masturbation habit.” ( Psychology Today, “Porn-Induced Sexual Dysfunction Is a Growing Problem” Published on July 11, 2011 by Marnia Robinson http://www.psychologytoday.com/blog/cupids-poisoned-arrow/201107/porn-induced-sexual-dysfunction-is-growing-problem) This suggests that viewing excessive amounts of certain sexually explicit material may cause psychological problems, for some people, in some specific contexts. (The article goes on to say that the “cure” is to abstain from viewing pornography for a while, and a normal sex drive will eventually return, so any damage done is probably not permanent.) However, there are also numerous people who may occasionally read a “Playboy” magazine (and not just the articles), or even go to a topless bar for a bachelor party, and they do not seem to suffer any long-term consequences. They can enjoy the experience occasionally, without loosing their sexual desire for their girlfriends or wives. Most people would also be unlikely to deny that a “steamy” love scene in a mainstream R-rated movie or novel can be great, and that if the scene were removed, the plot would be weakened.
The fact that there are some movies that have gratuitous sex or violence and therefore are considered “obscene”, while other works of art are considered to have “legitimate adult material” in them points to another common question that arises when the government attempts to ban “obscene” matter: What is and isn’t “obscene”? Even some of the proponents of banning “obscene” matter seem to recognize that some sexual content in art is legitimate and should not be banned:
“Pornography is not objectionable simply because it arouses sexual desire or lust or prurience in the mind of the reader or spectator; that is a silly Victorian notion. A great many nonpornographic works –including some parts of the Bible –excite sexual desire very successfully. What is distinctive about pornography is that, in the words of D.H. Lawrence, it attempts to ‘do dirt on [sex]…[It is an] insult to a vital human relationship.’” (Morality, Harm, and the Law, edited by Gerald Dworkin, Westview Press, Inc. 1994, Chapter 4 Liberalism: Objections and Defenses, “Pornography, Obscenity, and the Case for Censorship”, by Irving Kristol, originally appearing in New York Times Magazine, March 28, 1971, pp. 246-247)
Rather, obscenity should be censored because it:
“…differs from erotic art in that its whole purpose is to treat human beings obscenely, to deprive human beings of their specifically human dimension. That is what obscenity is all about….To quote Susan Sontag: ‘What pornographic literature does is precisely to drive a wedge between one’s existence as a full human being and one’s existence as a sexual being –while in ordinary life a healthy person is one who prevents such a gap from opening up.’” (Id.)
“Obscene material” in the United States is generally considered to include graphic, detailed depictions of sexual intercourse. (“Hardcore pornography”) But, it is very difficult, even for a rational person, to determine when the sex scene in a work of art is “legitimate” and when it is not. It takes great mental effort to make such a judgment regarding a work of art, and reasonable minds can easily disagree on such a complex, fact-specific topic. One Supreme Court Justice went so far as to say that he couldn’t define what was and wasn’t “hard core pornography”, but he knew it when he saw it. (Concurrence of Justice Stewart, Jacobellis v. Ohio, 378 U.S. 184 (1964)). It would appear that one would first need to understand something about why art is important, and what “art” consists of, which is no small task in and of itself. In literature and movies, it would then appear that one must weigh the scene in relation to the overall plot, the characterization, and the theme of the work before determining if the sex, or the violence, is gratuitous or attempts to “do dirt on” sex. The point is not just that there is no general consensus on what is “obscene”, and therefore the government shouldn’t get involved -although that is probably a correct observation. The point is that it takes mental effort and thinking to make this determination, and it is not easy for even a rational person to make. It requires the exercise of one’s rational faculties to judge a work of art as “good” or “bad”. By leaving people free to decide for themselves what content in art is appropriate, they are provided with the opportunity to exercise their rational judgment and discrimination in the realm of art. Censorship of “obscenity”, assuming that a universally accepted definition of what that means could be determined, would deprive people of the opportunity to exercise their minds. Since all thought involves the mental formation and manipulation of ideas developed from observations and inferences derived from reality, censorship in the realm of ideas probably destroys thinking in a society faster than any economic regulation ever could. Economic regulation may be the road to serfdom, but censorship is the expressway to totalitarianism.
Eventually, the restrictions on freedom that made thinking irrelevant must be lifted, or more will follow. Will the censorship of “just a few hardcore porno movies”, or “just a few economic regulations” lead to immediate totalitarianism? No, but it discourages thinking in the realm of ideas, and that makes the people a little less capable of thinking for themselves, which creates the apparent need for more restrictions on the freedom of a growing number of individuals who are increasingly incapable of thinking for themselves and who seem to constantly make poor choices. For some people, especially those who have already become accustomed to letting the government do most of their thinking for them, the prospect of more freedom will seem daunting and frightening at first. There are now several generations of people who are dependent on the state, but the alternative to the dawn of complete freedom is the eventual long night of totalitarianism.
Free Trade In Liquified Natural Gas Benefits the Creators
A recent news article illustrates the sort of unprincipled, short-range thinking that can occur in our society, especially when it comes to issues of free trade. (“US Gas Exports Clear Hurdle” by Keith Johnson and Tennille Tracy, The Wall Street Journal, December 6, 2012, http://online.wsj.com/article/SB10001424127887324001104578161461770971222.html) The article discusses a government study that endorsed allowing the free export of liquefied natural gas from the United States, which is currently restricted. While the study makes the right conclusion, it appears to do so without citing the best reason for doing so.
For those who haven’t been following this issue, North America is currently projected to become a net exporter of natural gas and oil as a result of the creation of new technologies that allow for obtaining these resources from areas that were outside the reach of conventional oil and gas drilling techniques. These new technologies involve directional drilling and hydraulic fracturing (i.e., “fracking”). (“The U.S. Natural-Gas Boom Will Transform the World”, by by John Deutch, The Wall Street Journal, August 14, 2012, http://online.wsj.com/article/SB10001424052702303343404577514622469426012.html)
The article describes the government study as concluding that the benefits to natural gas exporting companies, businesses, and workers would outweigh the losses from domestic companies, consumers and businesses that use natural gas. This later group of domestic natural gas consumers is viewed as “loosing” some from exporting natural gas, since the price of natural gas will rise due to increased demand from abroad.
However, the first article never mentions whether any consideration was given to the people who invented these new oil and gas drilling technologies. What will be the result if they are not allowed to gain maximum economic benefit from the invention of these new drilling techniques? It is true that the price of natural gas in the US market probably will rise slightly from its current record low levels if the export of liquefied natural gas occurs. But, this increased price will mean increased profits for the oil and gas companies that are implementing these new drilling technologies, which will mean that the people who created these new technologies will benefit. They will be given an increased economic incentive to create new technologies in the future, which will further increase the standard of living of everyone. Furthermore, other young scientists, engineers, and businesspeople will know that they will also materially benefit from any new technologies that they invent and bring to market, which will create the incentive for the development of new technologies in the future. Ultimately it is new technology that increases standards of living, and we must ensure that the people who create new methods of production have every incentive to invent. Considering the benefits to the people who created the new energy is a much more principled justification for free trade in natural gas, but it is overlooked by those who don’t seem to understand that the free human mind is the root of all production.