If You Can’t Win the Argument, Pretend it Doesn’t Exist
November 15, 2010

Spencer Ackerman on the Obama administration’s legal justification for drone strikes:

In March, the State Department’s legal adviser gave a speech asserting that the strikes are legal, not demonstratingwhy they are. The closest that Harold Koh came to articulating his case was to say: The administration doesn’t intentionally kill civilians (“…attacks [are] limited to military objectives and that civilians or civilian objects shall not be the object of the attack…”); it tries to be proportionate (no “attacks that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof”); and that in any event the Authorization to Use Military Force covers the strikes. (“These domestic and international legal authorities continue to this day.”)

Exactly nowhere in Koh’s speech do the criteria emerge for determining when the administration would cross into illegality in drone targeting. (Thirty percent civilian casualties? What about forty? What about fifty?) We do not know what legal justifications the Justice Department’s Office of Legal Counsel has developed about the drone program. In March, ACLU sued to acquire those and any other justifications; the administration is fighting the disclosure.

This has become one of the favorite legal tactics of the Obama-era DoJ: when confronted over the potentiality criminality of a controversial program, they: (1) either insist that it’s legal because, well, just take our word for it (see above); (2) suggest that even challenging the legality of any actions the federal government may or may not have taken is a violation of state secrets and therefore forbidden (as they did in the case of Binyan Mohammed, who is now legally barred from suing his alleged abductors and torturers); or, my favorite, (3) insist that they’re following strict guidelines for their actions but refuse to disclose what those guidelines are (as is the case with Anwar Al-Awlaki, who the federal government reserves the right to assassinate, but only in specific circumstances to which they alone are privy).

If nothing else, I have to applaud their restraint in serving all of this with a straight face.

Crossposted at the League of Ordinary Gentlemen.

Nobody’s Saying Muslims Don’t Have the Right to Build a Mosque Near Ground Zero
August 19, 2010

Except, that is, for half of everybody.

There’s a lot to pick apart in this poll—for example, you could point out that whether or not Muslims have the legal right to build a Mosque near Ground Zero has nothing to do with current plans to build an Islamic Cultural Center. But I think the more salient point is regarding what this says about how a lot of Americans view constitutional issues.

There is no debate to be had over whether or not Imam Rauf and co. have a constitutional right to build Park51. They do. It is empirically, demonstrably true that they do.

It is not empirically true that they have a right in the moral or metaphysical sense to build Park51, because that is not the sort of thing that can be empirically verified. (Metaethical naturalists might argue that it can be empirically proven, to which I verified: Then do so.) That doesn’t mean that it’s necessarily wrong to say that they have the right. I believe they do, and I would hope that the vast majority of people who live in a liberal democratic society and also believe that rights exist in the first place would agree with me. But giving a proof of that gets into some thorny, potentially unanswerable ethical questions, whereas a proof answering the constitutional question would be irrefutable and consist of one step, which reads: “Read the goddamn document.”

My point being that if you think that Park51 doesn’t have a constitutional right to exist, then you really have no idea what the constitutional angle is on this. In which case, the only way you can give an answer besides “I don’t know” is by substituting your own moral intuitions for the actual letter of the law.

This is the sort of widespread backwards thinking on legal issues that the Onion lampooned brilliantly awhile back. And if you want another example from today’s news, check out Laura Schlessinger complaining that private individuals and companies violate her first amendment rights when they aren’t sufficiently indulgent of her racist tirades.

(Aside: I know it’s way too easy to pick on Sarah Palin, but compare her full-throated defense of Schlessinger to her previous well-documented condemnations of the “Ground Zero Mosque.” Evidently when brown people construct benign outreach centers too close to the sites of national tragedies it shows an unfortunate lack of sensitivity, but when a white person spouts racial epithets on a popular radio program she’s just exercising her rights and anyone who takes issue with that needs to man up.)

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France’s Perennial Burka Ban Legislation
July 6, 2010

Burqa
Image by CharlesFred via Flickr

It appears that it is up for debate again.

This smells like a pretty transparent bit of Muslim-baiting in a country known for its antagonistic relationship with its Arab immigrants. But a friend of mine, in private conversation, noted that there is an ostensibly feminist argument to be made for the ban. Burkas can be, after all, a tool of oppression.

This is the position favored by French President Nicolas Sarkozy, who calls the burka, “contrary to the dignity of women.” But I’m not so sure the argument flies, at least in a liberal democratic society.

The problem is that while the burka is frequently—and, in France, maybe even usually—forced onto the wearer by a family member, it is not impossible to conceive of a woman voluntarily donning such a garment as an expression of her faith. Legislation banning such expression, when it does no direct harm to others, is incompatible with liberal democratic principles.

So maybe the trick is to target the family members who coerce women into wearing burkas, and leave women wearing them voluntarily alone. That’s not what the legislation does—in fact, even in obvious cases of coercion, the victim is punished along with the perpetrator—but let’s try this new and improved law out for the sake of argument. The problem then comes from the impossibility of proving coercion. If you come across someone literally forcing a woman into a burka, there are presumably other laws under which that person can be charged. Anything less and the case is, at best, founded on hearsay. At worst, you get into horribly vague arguments about the nature of coercion and what kinds of psychological and institutional pressure count as something stronger than mere persuasion.

More to the point, outlawing its most obvious outward signifiers isn’t a particularly effective way of combating abuse. I’m not sure what this actually does for women in France beyond denying them one possible avenue of self-expression. Abuse spouses and family members have plenty of other ways of being equally abusive. And given that a near-negligible percentage of Muslim women in France wear burkas in the first place, it seems the primary consequence of passing this legislation would be the needless antagonization of France’s Arab population.

Which, as I said earlier, seems to be sort of the point.

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The Platonic Code
July 1, 2010

Plato along with Socrates and Aristotle were f...
Image via Wikipedia

The Guardian ran an article a couple days ago by philosopher Julian Baggini, featuring some new insights into the way Plato structured his writings. The findings are pretty stunning. It turns out the number of lines in his most famous works are all multiples of twelve, the significance being:

Believing that this pattern corresponds to the 12-note musical scale widely used by Pythagoreans, Kennedy divided the texts into equal 12ths and found that “significant concepts and narrative turns” within the dialogues are generally located at their junctures. Positive concepts are lodged at the harmonious third, fourth, sixth, eight and ninth “notes”, which were considered to be most harmonious with the 12th; while negative concepts are found at the more dissonant fifth, seventh, 10th and 11th.

Things get even more interesting at the bottom of the article:

The secrecy was because Plato’s was “a dangerous idea”, claims Kennedy. “It meant that mathematical law governed the universe and not Zeus.” Given that Plato’s teacher, Socrates, had been executed for sowing impiety among the youth he would have been “very cautious abut revealing doctrines that threaten the gods of Olympus”.

Well sure, that’s one theory. Or maybe Plato made up this code to conceal the location of The Lost Treasure of Socrates.

 Wait, Socrates lived in poverty? Oh. Never mind. 

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Thrasymachus and Philosophy of Law
May 24, 2010

Welcome, readers of Matthew Yglesias, and thanks to my friend Young Zeitlin for the link.

In response to my last post on Thrasymachus, a couple of commenters brought up the notion that Thrasymachus’s response to Socrates was aimed more at human law than the ideal of justice. This isn’t an uncommon interpretation, but it is an important one; depending on what you think Thrasymachus intends to rebut, he is either a nihilist or a mere legal realist.

I never got around to studying philosophy of law, but my understanding of legal realism is that it’s the belief that law is constructed through practice, precedent, and text, and is therefore subject to the whims and errors of those who write and practice it. This is in contrast to any theory that attempts to understand the law through reference to natural law or laws that supposedly stem from anything other than human practice.

I don’t really have a whole lot to say about this—I don’t think legal realism is terribly controversial in this day and age, but I also don’t think it was what Thrasymachus was getting at. Recall that while he does argue that “justice” is something that is in the interests of the ruling class, when pressed by Socrates he insists that even then the ruling class doesn’t necessarily know what justice is. So it is not necessarily something that they create as it is something that automatically favors power, a sort of “might makes right” philosophical doctrine.

So it seems to me that Thrasymachus is making an overtly amoral argument.

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