The most widely repeated retributivist argument against the utilitarian theory of punishment is that utilitarianism permits punishment of the innocent. While defenders of utilitarianism have shown that a publicly announced policy of punishing the innocent is unlikely to serve utility, critics have insisted that utilitarianism morally obliges officials to deceive the public by framing the innocent. Yet philosophers and legal scholars have heretofore failed to test this claim against the writings of the theory's originators. We directly examine the writings of (...) Jeremy Bentham and other eighteenth and nineteenth century utilitarians and demonstrate that the originators of utilitarian penology clearly opposed both punishment of the innocent and deception of the public. We argue that utilitarianism originated as a legal theory that emphasized several institutional conditions for the public pursuit of utility, including security of person and property, legality, legislative supremacy, democratic accountability, publicity and transparency. These institutional conditions would preclude both systematic and ad hoc framing of the innocent. We show that the original utilitarians considered individuals incompetent to determine and pursue the public welfare, and that the contemporary conception of utilitarianism as an ethical standard governing individuals is a modern innovation. Bentham's theory of punishment did not derive from any general ethical theory. Bentham, like his chief forebears Hume, Helvetius and Beccaria, thought of public utility as a standard of value for public action, such as legislation. He assumed that private action was ruled by self-interest (i.e. private utility) so that there was little point in directing arguments about the general welfare to individual ethical actors. In assessing public action, Bentham was far less concerned about consequences than has generally been supposed and far more concerned about process. He identified utility with security of expectations and the rule of law. As a consequence, he endorsed public actions that could be seen to have emerged from a rational and well-informed debate about their consequences for the public welfare. Utility was not a definition of the good or a guide to conscience, but a standard designed for use in public, deliberative debate. Utilitarianism was not so much a philosophical theory as a rhetorical practice, understood as a transparent language of analysis and argument for use in political deliberation.We elaborate the procedural conditions presupposed by utilitarian discourse, beginning with Bentham's commitment to a conception of legality involving legislative promulgation of formal rules faithfully applied by rigidly constrained bureaucrats and judges. Next, we demonstrate Bentham's commitment to democratic representation of the public in devising legislation. Finally, we emphasize Bentham's commitment to publicity in government decisionmaking. Utilitarian policy required public scrutiny of all decisions and the information and reasons considered in making them. In sum, Bentham's utilitarianism was primarily concerned with the problem of how to design government so that it could accurately identify and faithfully pursue the public good while being openly seen to do so. It follows that Bentham's utility principle does not require him to endorse deceiving the public and framing an innocent person. (shrink)
In 2008 I published I Was Wrong: The Meanings of Apologies with Cambridge University Press. I Was Wrong provides a nuanced framework for the ethical meanings of apologies from individuals and collectives, considering along the way the historical and cultural traditions that inform modern acts of contrition. I have discussed I Was Wrong on NPR (an hour-long interview with Diane Rehm), CNN, BBC, CBC, Philosophy Talk, and various other national and international programs.I am now working on the follow-up book, (...) tentatively titled Apologies in Law and also under contract with Cambridge University Press. Apologies in Law will apply the framework for the ethical meanings of apologies from I Was Wrong to acts of contrition in civil and criminal law. As a recently tenured J.D./Ph.D. experienced as a litigator in a major Manhattan law firm and as a staff attorney for the U.S. Court of Appeals, I hope to use my upcoming sabbatical to complete a draft of Apologies in Law. I will revise and polish the draft during the summer of 2009. (shrink)
The argument and purpose of this comment will be to cross-pollinate value incommensurability theory and Levinasian deconstruction so as to begin to develop a social and legal theory that (1) is motivated by an ethical commitment to the irreducibility of human subjects, institutions, and goods and (2) negotiates between those incommensurable subjects and values through democratic procedural mechanisms. This hybridization of the two schools of thought will provide ethical grounding for legal incommensurability theorists, and political grounding for Levinasian critical theory.
Apologies pervade our news headlines and our private affairs, but how should we evaluate these often vague and deceptive rituals? Discussing numerous examples from ancient and recent history, I Was Wrong: On The Meanings of Apologies argues that we suffer from considerable confusion about the moral meanings and social functions of these complex interactions. Rather than asking whether a speech act "is or is not" an apology, Smith offers a nuanced theory of apologetic meaning. Smith leads us with a clear (...) voice though a series of rich philosophical and interdisciplinary questions, arguing that apologies have evolved from a confluence of diverse cultural and religious practices that do not translate easily into pluralistic secular discourse. After describing several varieties of apologies between individuals, Smith turns to collectives. Although apologies from corporations, governments, and other groups can be profoundly significant, Smith guides readers to appreciate the kinds of meaning that collective apologies often do not convey and warns of the dangers of collective acts of contrition that allow individual wrongdoers to obscure their personal blame.The Introduction is available here. (shrink)
Noise appears to critique the prevailing cognitive and social habits of modernity by providing concrete and particular art objects that demand attention and jar us from one-dimensional life. Noise sounds, for a moment, like a true alternative not only to contemporary music but to a whole way of thinking through abstract generalisation and living through commercial mediation. Understood in this way, noise makes sense. Once noise is no longer inscrutable, however, it is assimilated into popular culture and becomes a commercial (...) novelty. The blatant contradiction of the commodification of noise gives rise to a second order of critique wherein noise parades its uselessness and occasions reflection on the tortured existence of art in modernity, the ubiquity of identity thinking, and the relation between use and exchange value. This ironic endgame for noise, however, is itself absorbed by consumer culture and noise lives on as but another cool, extreme product. The cultural reception of noise thereby demonstrates the mechanism by which modernity absorbs artistic attempts to critique it, and noise is ultimately understood as a desperate but spectacular failure. (shrink)
I argue that Japanese noise could only become meaningful and articulate at a time when thought and language have become somehow inarticulate. I very briefly recount T.W. Adorno's controversial claims that we live in a wholly abstract and instrumental world, where each object we encounter holds meaning only as 1) a representative of the class to which it belongs and 2) a tool for our use. As is now the convention in Adorno scholarship and cultural studies generally, I name ordering (...) principles of such life identity thinking and the object of its inarticulacy the non-identical. Rather than devoting this paper to debating the veracity of these principles, once I unpack modern art's predicament within the confines of identity thinking I make a case for the utter sensibility of the prima facie senselessness of Japanese noise. But this ultimate sensibility of Japanese noise, I argue, exemplifies the crisis of all modern art: despite its efforts to frustrate sense and stall the prevailing cultural logic, it becomes sensible as a commodified cultural product. Japanese noise therefore provides a case study of the process by which a critique of a consumer culture becomes a commercial product of that culture, thereby neutralizing the critical power of the work. Within such structures the critical capacity of art in general is under threat. (shrink)
Epiphenomenalism is a theory concerning the relation between the mental and physical realms, regarded as radically different in nature. The theory holds that only physical states have causal power, and that mental states are completely dependent on them. The mental realm, for epiphenomenalists, is nothing more than a series of conscious states which signify the occurrence of states of the nervous system, but which play no causal role. For example, my feeling sleepy does not cause my yawning — rather, both (...) the feeling and the yawning are effects of an underlying neural state. (shrink)
@FP=Punishment in the contemporary United States is a massive and costly enterprise. As of 2001, approximately 5.6 million living adult residents of the United States had served time in a federal or state prison. In that same year, federal, state, and local governments in the United States spent $57 billion punishing these individuals, which does not include $72 billion to provide police protections and $38 billion to maintain the court system. An American resident is more than eight times more likely (...) to be incarcerated than a German resident and nearly nineteen times more likely than a Japanese resident. Despite the fact that our incarceration rates are so disproportionately high when compared to rates of other wealthy democracies, we suffer far more violent crime per capita than similar nations. In 2001, the reported offense rate per 100,000 for homicide in the United States was 5.6 while in Germany the rate was 3.23. For rape, the numbers are more disproportionate, with 31.8 in the U.S. compared with 10.45 in Germany. The comparison with Japan is still more dramatic, with Japanese homicide rates at 1.10 and rape rates at 1.85 per 100,000. The United States invests more in punishment than any other nation–both in terms of financial expenditure and the loss of freedom for millions of convicts–yet this price does not appear to result in a safer society. Given this, we must ask fundamental questions regarding punishment: What justifies punishment? What are the objectives of punishment? How should we accomplish those objectives? How important are those objectives when compared with other objectives, such as personal liberty? Imagine, for example, that we retained all of our current laws but one punishment applied for violating any of them: regardless of whether you were convicted of murder or exceeding the speed limit, you would be executed. Surely we could all be more confident that such a threat would reduce criminal activity, but with this security would come the anxiety that you or a loved one would be killed for committing a minor offense.. (shrink)
@FP= Although rehabilitation is often considered a type of punishment for criminal offenders, its objectives are therapeutic rather than punitive. While some theories of punishment claim that criminals deserve to suffer for their crimes, the rehabilitative ideal views criminal behavior more like a disease that should be treated with scientific methods available to cure the offender. Many convicts suffer from mental and physical illness, drug addiction, and limited opportunities for economic success and these problems increase the likelihood that they will (...) engage in criminal activity. If we simply incarcerate the convict while she “pays her debt to society,” she will likely reenter it with all of the obstacles that drove her to crime still in place. She will also need to contend with additional difficulties: a criminal record will impact her employment opportunities, she will be older and still without marketable skills or education, her social relationships may have deteriorated while she was in jail, and she may have become further acclimated to criminal culture. Thus incarcerating offenders could actually make them more likely to commit offenses after they are released, and recidivism rates attest to this. A rehabilitative approach would attempt to treat the underlying cause of her transgressions so that she can return to society to become a full and productive citizen. In other words, instead of exacting revenge against criminals and making their lives worse, rehabilitation tries to help them. (shrink)
Experimental philosophers have gathered impressive evidence for the surprising conclusion that philosophers' intuitions are out of step with those of the folk. As a result, many argue that philosophers' intuitions are unreliable. Focusing on the Knobe Effect, a leading finding of experimental philosophy, we defend traditional philosophy against this conclusion. Our key premise relies on experiments we conducted which indicate that judgments of the folk elicited under higher quality cognitive or epistemic conditions are more likely to resemble those of the (...) philosopher. We end by showing how our experimental findings can help us better understand the Knobe Effect. (shrink)
In this paper I first aim to identify, from a perspective mindful of both analytic and Continental traditions, the central normative issues at stake in the various debates concerning commodification in law. Although there now exists a wealth of thoughtful literature in this area, I often find myself disoriented within the webs of moral criteria used to analyze the increasingly ubiquitous practice of converting legal goods into monetary values. I therefore attempt to distinguish and organize these often conflated conceptual distinctions (...) across several registers of moral analysis. Second, I formulate what I consider the most illuminating questions regarding the criteria used to evaluate commodification in law. Critiques of commodification in law face what I call problems of ideology, intractability, and hyperbole, and identifying these issues helps to explain the momentum of the law and economics movement. (shrink)
Levinas and Adorno both refuse to translate their stringent ethical convictions into a programmatic social theory because translating their theories of non-identity into models of governance would necessarily perpetrate, en masse, the very subsumptive violence they denounce. Although Levinas and Adorno have come to provide ethical guidance to Continental philosophers, their outright refusal to be drawn into applied theory has caused innumerable difficulties for progressive theorists compelled by their critiques of instrumental reason but handcuffed by their skepticism toward practical reform. (...) I do not mean to suggest that Adorno and Levinas were not personally engaged with political causes or that numerous interpreters have not extrapolated political content from their work, but rather that Levinas and Adorno expressly blocked the conversion of ethics into political and legal programs on ethical grounds. This paper outlines the procedural and substantive questions that I find most worrisome for a "Jurisprudence of Alterity" motivated by Levinas or Adorno. (shrink)
Apologies in Law will consider apologies in various legal contexts, but in this commentary outline what I consider the most significant questions arising regarding expressions of contrition within criminal justice.
Although Adorno and Levinas share many arguments, I attempt to sharpen and evaluate their disagreements. Both held extreme and seemingly opposite views of art, with Adorno arguing that art presents modernity’s highest order of truth and Levinas denouncing it as shameful idolatry. Considering this striking difference brings to light fundamental substantive and methodological incompatibilities between them. Levinas’ assertion of the transcendence of the face should be understood as the most telling point of departure between his and Adorno’s critiques of instrumental (...) reason. I attempt to explain why Levinas believed this move was justifiable and how Adorno would understand Levinas’ notion of illeity as a cultural byproduct and a form of dogmatism. Adorno’s historical and sociological account of the disenchantment of the world and the destruction of aura within a culture fully administered by scientific rationality and economic reductionism sharply contrasts to Levinas’ transcendental phenomenology, and I argue that Adorno’s thoroughgoing refusal to constrain dialectical reflection is ultimately more compelling. (shrink)
My task here is the ﬁrst one. I do present a consistent formal system and claim that it provides a perfect model of natural languages such as English, but this system involves no surprises. It is none other than the standard framework of classical logic and model theory. The real weight of the argument lies in the claim that the classical framework—without alteration or addition—contains the resources to model what happens when we say in English ‘This sentence is not true’.
Much of our private and public ethical discourse occurs in the giving, receiving, or demanding of an apology, yet we suffer deep confusion regarding what an apology actually is. Most of us have never made explicit precisely what we expect from a full apology and therefore apologizing has become a vague and clumsy ritual. Full apologies can be morally and emotionally powerful, but, as with most valuable things, frauds masquerade as the genuine article. These semblances of apologies often deceive and (...) manipulate, and such duplicity is common between lovers, families, litigants, and nations. In response to this, I propose nine elements that an apology must satisfy in order to be considered categorical. I believe we have such a categorical apology in mind when we seek a full apology. The standards for a categorical apology are rigorous and precise, and I hope to disentangle the distinct elements of apologies. A categorical apology is a rare and burdensome act, and under certain circumstances full apologies may not be possible regardless of how badly we may desire them. While the leading social science accounts by Aaron Lazare and Nicolas Tavuchis aptly demonstrate how apologies lubricate reciprocally egoist relationships, such theories ultimately prove unsatisfying because apologies achieve their highest meaning as morally rich acts. Both Tavuchis and Lazare offer merely descriptive accounts when a prescriptive argument seems necessary. No philosopher, however, has ever devoted a monograph to the topic and only a handful of papers on apologies have appeared in philosophy journals. (shrink)
In this note I raise a new problem for backwards time travel, and make some first suggestions as to how it might be solved. I call it the motivation problem. It is not a logical or a metaphysical problem, but a psychological one. It does not impact upon the possibility, or even the likelihood, of backwards time travel. Yet it is deeply puzzling, and we will have no idea what time travel would actually be like until we explore it. Thus, (...) where other problems for backward time travel assume that we know what time travel would be like, and argue that we cannot have it, this new problem gives us no reason to think that we cannot have time travel, but argues that we have much less idea than we usually suppose about what it would really be like to travel back in time. (shrink)
Georg Simmel wamed in 1900 that capitalism creates not only a market economy but also a market culture in which money becomes the central and absolute value.' Some cultural critics seem to take the root of all evil claim seriously, asserting with rhetorical flourishes filled with normative hyperbole that commodification is the primary cause of all social problems. Our anxieties about money, however, are often vague and tempered by our sense that it appears to be more or less the best (...) way to organize life and measure value in such a complex and pluralistic world. Somewhere between demonization of the market and blind faith in it lies a clear analysis of precisely what is wrong with the commodification of life. (shrink)
Although they might not express themselves in quite this way, non-philosophers tend to think that mereological composition is a vague matter : sometimes it occurs, sometimes it does not, and sometimes it sort of occurs. For example, when I am building a boat, at ﬁrst the timbers that I have acquired for the job do not jointly compose an entity; in the end they do—they compose the boat that I have built; and in between they sort of or more or (...) less or to some extent compose an entity, which in turn sort of or more or less or to some extent exists—this entity being the boat I am building. This idea seems innocuous enough. However, the orthodox view amongst philosophers is that composition can never be a vague matter, because vague composition entails vague existence (the common-sense view agrees with this step), and vague existence is impossible if not nonsensical. Let us call the following the ‘orthodox argument’. (shrink)